WORKS OF JOHN C. WAIT 
 
 , PUBLISHED BY 
 
 JOHN WILEY & SONS. 
 
 Engineering and Architectural Jurisprudence. 
 
 A Presentation of the Law of Construction for 
 Engineers, Architects, Contractors, Builders, Pub- 
 lic Officers, and Attorneys at Law. 8vo, 985 
 pages, cloth, $6.00 ; sheep, $6.50. 
 
 The Law of Operations Preliminary to Construc- 
 tion in Engineering and Architecture. 
 
 Rights in Real Property. Boundaries, Easements, 
 and Franchises. For Engineers, Architects, Con- 
 tractors, Builders, Public Officers, and Attorneys 
 at Law. 8vo, 712 pages, cloth, $5.00 ; sheep, $5.50. 
 
 The Law of Contracts. 
 
 A Text-book for Technical Schools of Engineer- 
 ing and Architecture. 8vo, 346 pages, cloth, $3.00. 
 
. THE 
 
 LAW OF OPERATIONS 
 
 PRELIMINARY TO CONSTRUCTION 
 
 IN 
 
 ENGINEERING AND ARCHITECTURE. 
 
 RIGHTS IN REAL PROPERTY. 
 BOUNDARIES, EASEMENTS, AND FRANCHISES. 
 
 FOR 
 
 ENGINEERS, ARCHITECTS, CONTRACTORS, 
 
 BUILDERS, PUBLIC OFFICERS, AND 
 
 A TTORNEYS AT LAW. 
 
 BY 
 JOHN CASSAN WAIT, M.C.E., LL.B., 
 
 (M C.E. CORNELIA; LL.B. HARVARD,) 
 
 Attorney and Counsellor at Law and Consulting Engineer; Member of the American Society of 
 
 CM Engineers; Sometime Assistant Professor of Engineering, Harvard University; 
 
 Author of "Engineering and Architectural Jurisprudence-" 
 
 FIRST 
 
 SECOND TFOUSA2fD., 
 
 NEW YORK: 
 
 JOHN WILEY & SONS. 
 LONDON : CHAPMAN & HALL, LIMITED. 
 
 1908. 
 
7 <M 
 
 It/ 3 
 
 Engines 
 Library 
 
 Copyright, 1900, 
 
 BY 
 
 JOHN CASSAN WAIT. 
 
 Unhurt BrumraouZi an& (Eompang 
 
PREFACE. 
 
 THIS book might consistently have been entitled "Engineering and Archi- 
 tectural Jurisprudence," and have made a volume of an earlier work published 
 under that name by the author. In fact a large part of the material from which 
 this book has been prepared, was collected for the earlier book, and would have 
 been embodied in it had not its size forbidden. The earlier book was a pres- 
 entation of the law of construction, while this treats of the law attending those 
 operations which precede construction. Such operations are those required 
 for the determination of data and information which should be obtained before 
 a project is undertaken. They comprise the preliminary surveys and investi- 
 gations to determine the boundaries, the areas, the elevations, the quantities, 
 and the other physical conditions and phenomena that exist and from which 
 the cost, resources, and revenues of the enterprise are estimated. They include 
 an estimate of the value of the natural products, forces, and benefits to be 
 appropriated or utilized in the undertaking, and a determination of the rights 
 and powers to be secured, and of the duties and obligations which attend the 
 carrying out of the enterprise. These are essentially things to be determined 
 before construction work may be commenced, but the misfortune is that they 
 are too frequently overlooked until the time for their favorable acquisition has 
 passed, when they are secured at great cost and expense. 
 
 The necessity for such a work as the present one may not be at once appar- 
 ent, and while the author has no apologies to make for its presentation, he has 
 thought it expedient to explain the occasion for a combined treatment of the 
 subjects of law and construction, and particularly the utility of a work setting 
 forth the legal difficulties met with in Operations Preliminary to Construction. 
 The book has been written for engineers, architects, and those persons engaged 
 in the promotion, organization, construction, and operation of projects usually 
 Tnbraced within the general term of public improvement, or of private enter- 
 prises of such magnitude as to be of public interest, first and foremost because 
 there is no book published in English covering the same ground. 
 
 Whether the reader be an engineer, an architect, a builder, a contractor, 
 or simply the mechanic who puts his handiwork into the structure, he acts in 
 the capacity, and performs the duties, of an engineer, and practices the honor- 
 able profession of engineering ; therefore the author may be excused for any 
 
 iii 
 
 268701 
 
IV PREFACE. 
 
 seeming neglect of the distinguished profession of architecture or of the great 
 and respected vocation of contracting and building, or of the numerous indus- 
 trial trades, if he classes them all in the profession of engineering. All are 
 required to observe certain duties and functions that the law imposes and 
 which are essential to the mutual protection of men, one to another. Among 
 these duties are those of a professional man or public officer who undertakes to 
 serve those who command his skill and knowledge, also those of persons who 
 undertake, either by an express agreement or by mere contract of hiring, to do 
 certain things for a stipulated remuneration, whether it be in a large sum of 
 money or in the simple day- wages of the mechanic or day-laborer. The under- 
 taking to do or perform such services is a representation on the part of the 
 employee that he is qualified and skilled to do or perform what is required of 
 him to the same extent and character as is usual in the profession or trade 
 which he follows. The consideration of these duties that are owing to an 
 employer is one of the things which prompted the preparation of this work. 
 
 It is maintained by the author that the same duty rests upon an engineer or 
 mechanic to serve his employer that is due from a physician to his patient or 
 from a lawyer to his client. He is under the same liability for neglect to 
 exercise proper skill and care, and responsible to the same extent for misrepre- 
 sentations as to qualifications which he does not possess. This rule holds 
 whether the service be in construction, in healing, or in litigation. The pro- 
 fessional man owes his best efforts to attain the highest results. The necessity 
 of observing sanitary precautions in engineering and architecture has long been 
 recognized, and the laws of sanitation have been the subject of study and appli- 
 cation in engineering for many years. To neglect so important a subject 
 would be a breach of professional practice and would ruin the reputation of 
 any engineer or architect, and the author maintains that it is equally incum- 
 bent upon him to observe, understand, and apply the principles of the law. 
 To attain the highest and most economical results, the cost, delays, and vexa- 
 tions of legal controversies should be provided against by a proper regard for 
 the law, in the same manner that the conditions and dangers that threaten 
 health, convenience, and comfort are met by a due consideration of the science 
 of medicine. Upon the practice of civil engineering and architecture depend 
 the beauty, strength, stability, and utility of works ; upon the exercise of sani- 
 tary engineering depend the fitness, healthfulness, security, and habitability of 
 a structure, or even of a community ; and upon the application of legal engi- 
 neering depend their peaceable possession, occupation, and operation. 
 
 Engineering in the past has been chiefly occupied in applying science to 
 the forces and materials of nature, to the acquirement of worldly gain and 
 profit. She has appropriated everything necessary to develop, improve, and 
 utilize the gifts of nature, and to apply them to the necessities and convenience 
 of humankind at the least expense of labor, time, and money. The sciences 
 have been her handmaids, and the mineral and vegetable products of the 
 
PREFACE. V 
 
 earth her materials ; and they have been the chief subjects of study. She has 
 been occupied in the creation of the structure, and not in its maintenance and 
 operation. Indeed she has availed herself of anything and everything to pro- 
 mote her advancement, and has incorporated almost every scientific subject and 
 every mechanical trade within her calling. Subject after subject has been taken 
 tip and pursued to assist her growth and development, and specialties and 
 branches have been created which have themselves become professions and 
 businesses. That this would be so, was recognized at a very early date, when 
 Sir John Rennie (1761-1821), the distinguished English engineer, said: 
 " Without presuming to underestimate the merits and importance of other pro- 
 fessions, that of the civil engineer may be said to embrace everything which 
 can tend to the promotion of the comfort, the happiness, and civilization of 
 mankind." Certainly a consideration of the legal questions presented in con- 
 struction work was one of those things which the distinguished engineer had 
 in mind. 
 
 As well might an engineer, an architect, or a builder have a physician accom- 
 pany him for advice as to sanitary precautions and arrangements in his works 
 as to require the elbow-counsel of a lawyer to explain the legal status, rights, 
 and liabilities attending their construction and operation. A few decades since 
 he could as reasonably have asked for the attendance and assistance of a mason, 
 carpenter, or blacksmith to instruct him in the qualities and peculiarities of the 
 materials of construction employed, or in their proper use and application, as 
 he can now justify his incompetence to perform the ordinary legal duties of 
 his profession. His duties include everything that conduces to the proper, per- 
 fect, and economical construction of the work, and that shall secure the 
 greatest benefit to his employer with the least trouble and cost. 
 
 Several minds cannot work together with the clearness, nor decide with the 
 promptness as well as the unanimity, that attend the operations of one master 
 mind. From the earliest times it has been recognized that engineering opera- 
 tions should and must be under the direction and supervision of one head or 
 central authority, which necessitates that that head should be qualified to at 
 least understand and judge of the many questions presented for its determina- 
 tion. For the determination of technical and subtle questions, counsel of 
 specialists, whether of law or medicine, may be sought and obtained, but even 
 in such cases the final determination should be made only after a comprehen- 
 sive and general consideration of the whole subject-matter by one master 
 mind. 
 
 This work, together with the earlier one on the Law of Construction, is 
 intended to give to the engineering professions, including all those vocations 
 and trades engaged in construction work, that general knowledge of legal 
 engineering which is so essential to the complete success of their undertakings 
 and to the highest attainment of professional skill. 
 
 All engineering and construction operations deal with land or real prop- 
 
VI PREFACE. 
 
 erty, and this book is really a treatment of the Law of Real Property, restricted 
 to such property and the rights inherent therein as are met or employed in 
 engineering and architectural construction. Property is the subject-matter of 
 the engineer's creation. All engineering works require the appropriation and 
 acquisition of property fixed and movable, corporeal and incorporeal. The 
 treatment does not embrace the law of conveyancing or titles, nor the law of 
 inheritance, but the law of property as applied to the materials and phenomena 
 with which the engineer deals, viz., those which are the vehicles of nature's 
 forces and those minerals and metals employed to arrest, transmit, conserve, 
 and utilize such forces. 
 
 The first consideration of an improvement is its location. What piece of 
 property will best suit the necessity and convenience of the work ? What can 
 be obtained for the purposes and what rights and interests therein shall be 
 secured ? What is the relative importance, what the value, of the various con- 
 ditions, rights, and interests that are presented ? What is their relative weight 
 and importance ? These questions arise at every stage of progress, in the 
 designing, construction, and maintenance of works. If the design is unalter- 
 able, rights and interests must be sought and secured which shall satisfy every 
 need and bear every servitude imposed or likely to grow out of the project. 
 If, as is frequently the case, the property or site for the works has been 
 acquired before the plan of the project has been perfected, then the plans are 
 required to be restricted so as to keep within the rights acquired in such prop- 
 erty. The plans must also conform to ordinances and statutes, and must not 
 create burdens which the property will not bear, or which the rights of 
 coterminous owners or the public will not tolerate. Such important technical 
 questions should not be entrusted to half-informed and one-sided men. An 
 engineer cannot take time to instruct a lawyer in the mysteries of science and 
 mathematics, and place before him a lifetime's experience, to enable him to 
 determine some simple question in law, which principles of law can be 
 acquired by a few months' leisure reading on the law of property and con- 
 tracts. With the engineer rests the obligation of making this combination, 
 for lawyers will not. The technical training should be united with a liberal 
 knowledge of the law of property and contracts, so that the determination may 
 >be the result of one effort, by one mind, and to one end and purpose. 
 
 It is submitted that almost every act and undertaking in construction 
 work, outside of the ministerial and manual duties which may be delegated to 
 servants and assistants, requires the unde r standing and exercise of legal and 
 judicial functions which may not be performed without some knowledge of the 
 law. It is to men possessed of these qualifications that the direction of work 
 is given and to whom the management of enterprises is committed. From 
 the first conception of a project to the last payment under the contract, legal 
 questions are constantly presenting themselves for immediate determination, 
 and though such decision may not be final it often defines the position to be 
 
PREFACE. Vll 
 
 taken and defended. Generally this knowledge so essential to success has 
 been acquired by observation, reading, and experience. The general and tech- 
 nical schools have not taught it, and the lack of it has been a serious drawback 
 to the rapid rise of technically educated young men. Capitalists and com- 
 panies have been cautious in confiding important questions and works to 
 young men, and older though confessedly less accomplished engineers have 
 been engaged because they have had experience not because they were better 
 informed in construction or were more competent to design and superintend 
 works, but because they had studied and observed the legal and commercial 
 features attending them. 
 
 It is not the mere competency to design, draft, lay out, and superintend 
 work that gives reputation to an engineer. This is work done by assistants 
 who are comparatively unknown to the profession. The men who control and 
 direct the work are men of broad ideas and business capacity, whom com- 
 panies and proprietors expect will look after their business conservatively and 
 hold their investments secure and profitable. This, it is contended, depends 
 largely upon their business and legal training. Without this training graduate 
 engineers find their many technical qualifications without weight in the esti- 
 mation of their employers, and they feel it keenly when men with a general 
 education are taken from the ranks of clerk and office help and are given 
 direction of work as superintendents and managers wholly on account of their 
 knowledge of the business policy which directs the financial operations and 
 because they know from association and study how to decide ordinary ques- 
 tions of business and law. 
 
 The favor with which "Engineering and Architectural Jurisprudence" 
 was received is sufficient encouragement to the author and the publisher to 
 offer this book, even though there be not, in the legal profession, so apparent 
 a need of it. There are good books upon the subjects treated in this volume, 
 and more complete compilations upon the topics presented ; but the present, 
 like the earlier, work has been prepared with special reference to the wants of 
 surveyors, engineers, architects, contractors, builders, and public officers, and 
 is an exposition of the law as applied to the natural subjects, materials, and 
 phenomena attending industrial operations. It is offered primarily to those 
 engaged in the industrial professions who are not familiar with the law, but 
 whose duties require that they should have some knowledge of the rights in- 
 herent to the conditions which are frequently presented to them in their 
 work ; and secondarily to lawyers in that it presents the views and conclusions 
 of the author based upon twelve years' active experience in engineering and 
 construction work, supplemented by an extended practice in the law and a 
 close study of the cases presented. -The book is too small to contain an ex- 
 haustive treatment of the law upon the subjects presented, and although there 
 are cited some four thousand original cases besides a large number of refer- 
 ences to text-books, it is not offered to the profession of law as a digest from 
 
VI 11 PREFACE. 
 
 which to prepare briefs or for general case-hunting. The authorities have 
 been cited in almost every instance mainly to give assurance that the writer is 
 justified in his statements of the law, and to enable the reader, if he be not a 
 lawyer, in case of litigation to direct the attorney to such authorities. 
 
 The author owes an apology to the legal profession for the promiscuity of 
 the citations made, and regrets that his time and opportunity have not per- 
 mitted him to give in all instances references to the official state reports. 
 This is, in a degree, compensated by many references to notes in the maga- 
 zines, digests, encyclopedias, and unofficial reports referred to, which fre- 
 quently contain valuable collections of cases upon topics of the law kindred 
 to the case reported, or to the subject under discussion. In many instances 
 a reference to the Table of Cases will give to the reader the official state report 
 in which the case is to be found. 
 
 The author is fully aware that he will provoke criticism from the members 
 of the legal profession for any attempts to specialize in the law, and particularly 
 for presenting it within the reach of the layman, it being the avowed policy of 
 the honorable profession of law to condemn every attempt to dispense law to 
 the masses or to make any division of it. To the minds of such persons he 
 would recall the old maxims promulgated and maintained by the legal profes- 
 sion that ' ' Every man is supposed to know the law " and that ' ' Ignorance of 
 the law excuses no man," and that such a policy is in keeping with the old 
 practice of the Roman emperor Caligula (12-14 A. D.), who, according to 
 Dion Cassius, wrote his laws in very small characters and hung them upon 
 high pillars, the more effectually to ensnare the people. It is very well for 
 lawyers, either as legislators or as judges upon the bench, to promulgate the 
 fiction that all men are supposed to know the law and then to discourage and 
 condemn each and every effort to educate the people (or a very intelligent 
 class thereof) in the law. The same objection was made to the preparation 
 .and publishing of "Engineering and Architectural Jurisprudence," the argu- 
 ment being made that, instead of assisting laymen to avoid litigation, the 
 effect of the book would be to multiply lawsuits, and that engineers, contract- 
 ors, and builders, by attempting to be their own attorneys, would lose the 
 efficient services of lawyers, to their own great loss. The author feels assured 
 that neither misfortune resulted, but that, on the contrary, the book has done 
 a great service in avoiding litigation and in protecting the interests of all con- 
 cerned. To the author all these arguments are seemingly plausible statements 
 of a well-defined policy, developed by the keenest insight of the lawyers' 
 selfish interests. The profession of law is and always has been the most exclu- 
 sive of professions, and is to-day most jealous of any of the modern tenden- 
 cies to specialize, and for that reason it is the most conservative and the least 
 progressive. To insist that it is necessary for a lawyer to know criminal law in 
 order to practice in the surrogate's court or in the United States courts in 
 patent and copyright cases is still maintained by some eminent lawyers. For 
 
PKEFA CE. Wt 
 
 a mechanical engineer, who desires to know something of patent law, to be 
 required to study all branches of the law, is as foolish as it is to maintain that 
 an engineer who wishes to know something of the law of property and of the 
 rights incident thereto must, before he can apply his knowledge to his every- 
 day duties and the consideration of questions arising in his profession, acquire 
 a thorough and comprehensive knowledge of law. Such arguments may be 
 true for the country practitioner who must attend every, ailment of his client, 
 but they have no force in our great cities, where the large interests involved 
 and the sharp competition met, require the physician, the lawyer, and the 
 industrialist to acquire the highest possible skill and efficiency in the particular 
 lines in which he labors. 
 
 Another object of this book is to give to engineers and parties engaged in 
 construction a sufficient insight into the law pertaining to the subject and 
 within the purview of engineering, to enable them to decide what facts are 
 essential to the proper and intelligent presentation of a case to a judicial 
 tribunal to secure a favorable determination of the legal questions involved. 
 Usually the engineer, contractor, or builder is the only person upon the work 
 who is familiar with the conditions and events that prevail during its con- 
 struction. In fact it is the exception that the attorney ever visits the scene of 
 operations. To enable the engineer, architect, or contractor to protect his 
 rights, it is very essential that he should know what those rights are, and. to 
 know what events to record, what protests to rriake, and what proofs to 
 accumulate and present to make out his case. The author will feel that he 
 has done a good service to the industrial professions if he has made such a 
 presentation of the law as will enable the readers of this work thus to fortify 
 their rights and interests. 
 
 Two considerations the author would bring to the attention of the reader 
 which were presented in the preface of the earlier work above mentioned, 
 viz., that "it must not be inferred that an engineer can, by a few weeks or 
 months of study of law-books, undertake the practice of law or conduct his 
 own cases in court, or even give advice in regard to matters of law. The 
 author wishes expressly to disclaim any such purpose in the preparation of 
 this work. The lay reader should keep constantly in mind that this work is 
 not intended to enable him to go into court to defend an action at law or to 
 prosecute a claim, but is written primarily to assist him in avoiding trouble 
 and litigation, and to aid him in protecting his employer's and his own rights 
 when they are assailed. If a man's rights are usurped, he had best consult a 
 man who makes some profession of knowing what his rights and liabilities 
 are : if they involve his spiritual as well as his legal status, he will consult his 
 pastor ; and if there be questions involving engineering and architecture, he 
 may reasonably be expected to consult his engineer or architect. 
 
 " It is hoped that the book will fulfill another mission that of guiding 
 and strengthening the younger and inexperienced members of the industrial 
 
& PREFA CE. 
 
 professions in a proper understanding and appreciation of business and 
 business relations. Young men in the engineering and architectural profes- 
 sions often obtain in their technical-school training a contracted view of their 
 professional duties and labors. They are likely to narrow their professional 
 work to the ministerial duties of the draft ing -room, the shop, or the field. 
 Too many well-trained and educated men remain in the shop or drafting- 
 room, while less skillful men from the counting-room and office, but with a 
 good business experience, become superintendents, managers, and presidents 
 of the concerns employing them. The education of an engineer should fit 
 him for a Jiigher sphere than that of a delineator of lines. Supplemented with 
 a good business experience, his training eminently fits him for the direction 
 and superintendence of large works ; and that is his proper field. If this book 
 cultivates in young men a better appreciation of business relations and business 
 principles, and a due sense of their duties, liabilities, and responsibilities, one 
 of its chief missions is accomplished." 
 
 The completion of this book has been delayed by professional work which 
 has increased in volume as each year and month have passed by, until the 
 author, and the publisher, too, almost despaired in their hopes of seeing it in 
 print, Then came the author's appointment as Assistant Corporation Counsel 
 to the City of New York, since which time he has been simply overwhelmed 
 by .the work of that office, together with what has been required to conclude 
 the book. Its completion has been accomplished only by heroic efforts and 
 by the most industrious use of the hours of the night. In fact the work from 
 the beginning has been compiled and prepared in extra hours that the author 
 has conserved from a very busy life, there having been no time in its prepara- 
 tion during which he has not been in active professional work. Some errors 
 may reasonably be expected under the circumstances, and for such the author 
 begs the indulgence of his readers. 
 
 The s author desires to acknowledge his indebtedness to several of his asso- 
 ciates for valuable assistance rendered in the arrangement and preparation of 
 four or five of the shorter chapters : to Mr. Newell Lyon in the preparation of 
 Chapters XXIII and XXIV, and to Mr. James B. Cauthers in the preparation 
 of Chapters IV and XXXV, both gentlemen having been associated with the 
 author in the practice of law at the time ; and also to Mr. F. W. Cnrpenter, 
 C.E., who gave valuable suggestions after reading the manuscript before it was 
 sent to the printer. The author wishes also to mention the efficient and 
 faithful services of his stenographer, Miss Katharine J. Cusack, whose assistance 
 and untiring interest in the preparation and completion of the book have been 
 most commendable. 
 
 38 PARK Row, NEW YORK, 
 August 15, 1900. 
 
CONTENTS. 
 
 PART I. 
 
 PROPERTY. ESTATES IN, AND TITLE TO, REAL PROPERTY. 
 
 CHAPTER I. 
 
 INTRODUCTION. PROPERTY DEFINED. 
 SECTION PACK 
 
 1. Introduction . I 
 
 2. Definition of Property 3 
 
 3. Real and Personal Property 4 
 
 4. Land 5 
 
 5. Use of the Word '* Land " 5 
 
 6. Personal Property 6 
 
 7. Fixtures 8 
 
 8. Agreements in Regard to Fixtures 9 
 
 CHAPTER II. 
 
 OWNERSHIP OF LANDS. ESTATES. 
 
 11. Estates 13 
 
 12. Estate of Freehold 13 
 
 13. Estate of Inheritance .14 
 
 14. Estate in Fee Simple 14 
 
 15. Estates Tail 14 
 
 16. Estates for Life 15 
 
 17. Dower, Curtesy, and Homestead 16 
 
 18. An Estate for Years 17 
 
 19. Description of Premises in a Lease 17 
 
 20. Estate at Will 18 
 
 21. Estate at Sufferance 18 
 
 22. Estate in Possession Estate in Expectancy 18 
 
 23. Estate in Reversion , 19 
 
 24. Estate in Remainder. 19 
 
 25. Joint Estate 20 
 
 26. Estate in Severalty 21 
 
 27. Estates on Condition Mortgages 21 
 
 28. Partial Estates 21 
 
 29. Incorporeal Property 21 
 
 xi 
 
Xll CONTENTS. 
 
 CHAPTER III. 
 
 TITLE TO PROPERTY. HOW ACQUIRED. 
 
 SECTION PAGK 
 
 31. Acquisition of Real Property 23 
 
 32. Title Acquired without Consent of Former Owner. 23 
 
 33. Title Acquired with Assistance of Former Owner "25 
 
 34. Who May Hold and Own Lands 25 
 
 35. Partnership's Interest in Realty. 26 
 
 36. Interest of Corporation in Realty 27 
 
 CHAPTER IV. 
 
 CONVEYANCES OF LAND. ESSENTIAL ELEMENTS OF DEEDS. 
 
 41. Necessary Elements of a Deed 29 
 
 42. Proper Parties 29 
 
 43. Subject-matter, or Thing to be Conveyed 30 
 
 44. The Consideration 30 
 
 45. Execution 30 
 
 46. Operative Words of Conveyance 32 
 
 47. Alterations 33 
 
 48. Fraud and Duress 33 
 
 PART II. 
 
 RIGHTS AND PRIVILEGES INCIDENT TO OWNERSHIP OF REAL 
 PROPERTY. PROTECTION OF, AND INTERFERENCE WITH, 
 RIGHTS IN FLUIDS. THE SUPPLY AND USE OF WATER, OIL, 
 GAS, AND ELECTRICITY. RIGHTS IN NAVIGABLE WATERS. 
 INTERFERENCE WITH PROPERTY RIGHTS BY SURVEYORS. 
 TRESPASS. 
 
 CHAPTER V. 
 
 WATER. RIPARIAN OWNERS. APPROPRIATION OF WATER. 
 
 51. Riparian Owners 34 
 
 52. Rights and Liabilities of Persons Holding under Riparian Owners 35 
 
 53. Riparian Rights Belong Only to Persons Entitled to Possession 35 
 
 54. Rights of the Public and of Riparian Owners to Waters 36 
 
 55. Riparian Rights Incident to Ownership of Land 37 
 
 56. Rights in Streams are Common and Not Divisible 37 
 
 57. Appropriation of Waters by Riparian Owners Extent of Use 38 
 
 58. Regard Must be Paid to Use of Waters by Other Riparian Owners 38 
 
 59. Reasonable Use of Waters How Determined 39 
 
 60. Water for Domestic Purposes 39 
 
 61. Appropriation of Waters by Non-riparian Owners or for Non-riparian 
 
 Purposes 40 
 
 62. Appropriation of Waters for Municipal Water-supply 41 
 
 63. Appropriations for Industrial Purposes 42 
 
 CHAPTER VI. 
 
 WATERS FOR IRRIGATION IN ARID COUNTRIES. 
 
 71. Irrigation under the Common Law 44 
 
 72. Local Irrigation Laws 45 
 
CONTENTS. Xlll 
 
 SECTION FAGR 
 
 73. Irrigation Rights by Prior Appropriation 47 
 
 74. Prior Appropriator vs. Riparian (3 wners 49 
 
 75. Priority in Appropriation 50 
 
 76. Abandonment of Irrigation Rights 60 
 
 77. Nature of Irrigation Rights 62. 
 
 CHAPTER VII. 
 
 DETENTION OF WATERS OF STREAMS. MILLS AND MILL RIGHTS. 
 
 81. The Detention and Obstruction of Streams 66> 
 
 82. The Use Must Be Beneficial and Reasonable 66 
 
 83. Detention of Waters by Dams 67 
 
 84. Alternate Obstruction and Release of Waters 68 
 
 85. Backing Up and Overflow of Waters Dammed 69 
 
 86. Injunction to Prevent the Detention or Obstruction of Waters 71 
 
 87. Liability for Defective Construction of Dam or Barrier 71 
 
 88. Maintenance and Repair of Dam 72 
 
 89. Liability for Injuries to Dam 73 
 
 90. Injuries Due to Floods that might have been Expected, foreseen, and 
 
 Guarded Against 73 
 
 CHAPTER VIII. 
 
 DIVERSION AND OBSTRUCTION OF WATERS. STREAMS. 
 
 101. Diversion of Watercourses. . 74 
 
 102. The Quantity Must Not be Materially Diminished 74 
 
 103. Obstruction of Outlet to Pond 75 
 
 104. Diversion Not Excused by Fact that Sufficient Water Remains 75 
 
 105. Diversion of Stream into New Channel 76 
 
 106. Excavating and Deepening the Channel of a Stream 77 
 
 107. New Channel Fixed by Prescription 77 
 
 108. Riparian Owners whose Rights are Not Affected Cannot Complain 79 
 
 109. Mode of Diverting Waters 79 
 
 no. Diversion of Waters by Percolation or Subterranean Channels 79 
 
 in. Measure of Damages for Diversion of Waters 80 
 
 112. Obstruction by Bridges, Culverts, and Embankments 81 
 
 113. Diversions Made to Lessen the Cost of Structures 81 
 
 114. Structures must Provide for Ordinary Floods and Freshets 82 
 
 115. What was an Extraordinary Flood Is a Question for the Jury 83 
 
 116. Liability for Obstruction During Erection Authorized by Law 8} 
 
 117. Stream Contracted by Structure and Consequent Overflow 85 
 
 118. Injunction to Restrain Obstruction of Stream, Without Proof of Damages 85 
 
 119. Structures must be Kept Free of Obstructions 86 
 
 120. Culverts in Railroad Embankments 86 
 
 121. Openings in the Clear for Navigation 87 
 
 CHAPTER IX. 
 
 PROTECTION OF BANKS AND STRUCTURES FROM WATERS. 
 
 131. In Protecting Bank or Structures Care and Skill must be Exercised 90 
 
 132. Must Exercise Prudence. Foresight, and Good Judgment 90 
 
 133. Return of Stream to its Old Channel 91 
 
 134. Protection ot Land from Encroachment of Stream 92 
 
 135. Riparian Owners Have Equal Rierhts to Protect their Lands 93 
 
 136. Protection Against Overflow in Times of Flood 93 
 
 137. Deflection of Stream Against Lower Riparian Owner 94 
 
 138. Measure of Damages for Deflection of Waters 04 
 
XIV CONTENTS. 
 
 CHAPTER X. 
 
 SUPPLY OF WATER AND ICE. WATER COMPANIES AND WATER-WORKS. 
 
 SECTION PACB 
 
 141. Ownership and Control by Municipal Corporations 96 
 
 142. Authority Conferred by Certain Statutory Provisions 96 
 
 143. Powers Conferred by the Legislature upon Water Companies 97 
 
 144. Negligent Construction of Water-works 98 
 
 145. Negligence in Laying and Maintaining Pipes, etc 98 
 
 146. Private Water Companies 99 
 
 147. Exclusive Franchises to Water Companies 99 
 
 148. Quantity and Quality of Water-supply 100 
 
 149. Public Character of Water Companies 102 
 
 150. Rules and Regulations of Water Company 103 
 
 151. Regulation of Rates or Rents for Water 103 
 
 161. Ice and the Ice Industry 1 14 
 
 162. Character of Property in Ice 105 
 
 163. Real or Personal Property in Ice 105 
 
 164. Ice Formed on Navigable Streams 100 
 
 165. Ice Formed on Lakes and Ponds 107 
 
 166. Ice Formed on Artificial Ponds 107 
 
 167. Owners of Water and Ice are the Same 108 
 
 168. Travel upon Ice Rights of Public 108 
 
 169. Measure of Damages for Taking Ice 109 
 
 CHAPTER XL 
 
 WATER. RIGHTS IN REGARD TO SURFACE-WATERS. 
 
 171. Surface-waters Defined HO 
 
 172. Surface-waters Distinguished from Watercourses no 
 
 1720. Watercourse Defined and Distinguished in 
 
 173. Overflow of Watercourses 114 
 
 174. Property in Surface-waters H5 
 
 175. Obstruction and Repulsion of Surface-waters 115 
 
 176. Different Laws in Different States 1 16 
 
 177. Improvements on Land under the Common and Civil Law Rules 117 
 
 178. Drainage of Surface-waters 117 
 
 179. Drainage of Ponds, Stagnant Bodies, etc 119 
 
 180. Water from Roofs 119 
 
 181. Eaves-troughs, Gutters, and Conductors 120 
 
 182. Discharge of Roof-waters, Snow, and Ice into Street 121 
 
 183. Easement of Eaves-drip 121 
 
 184. Drainage of Surface-waters into Watercourses 122 
 
 185. Prescriptive Rights to Drainage of Surface-water 123 
 
 186. Control and Regulation of Surface-waters by Municipal Corporations 124 
 
 187. Surface-water Discharged or Detained by Grading Streets 125 
 
 188. Liability of City for Defective Plans for Drainage 125 
 
 189. Liability for Defective Construction or Inferior Materials 126 
 
 190. Accumulation and Discharge of Waters upon Private Lands 127 
 
 191. Obstruction, Diversion, and Repulsion of Surface-waters by Railroads 127 
 
 192. Liability for Negligent Construction 129 
 
 193. Measure of Damages Due to Surface-waters 129 
 
 194. Measure of Damage from Diversion of Surface-waters 130 
 
 195. What Damages may be Assessed 131 
 
 CHAPTER XII. 
 
 FOULING AND POLLUTION OF SURFACE-WATERS AND STREAMS. 
 
 201. Pollution of Streams and Bodies of Water 132 
 
 202. What Constitutes a Fouling of Waters 132 
 
CONTENTS. XV 
 
 203. Sources of Pollution 133 
 
 204. Pollution by the Discharge of Sewers 133 
 
 205. Natural Streams Must Receive Natural Drainage 133 
 
 206. Degree of Pollution that will be Enjoined 134 
 
 207. Reasonable Use of Waters of a Stream 135 
 
 208. Instances of Reasonable Use 136 
 
 209. An Injunction or Damages may be Had for Pollution 137 
 
 210. Purification of Sewage Required 138 
 
 211. Rights of Riparian Owners cannot be Taken Without Compensation 138 
 
 212. Right to Discharge Sewage Acquired by Prescription 138 
 
 213. Parties to Suit to Prevent Pollution 140 
 
 214. Pollution of Stream by Joint Wrongdoers 141 
 
 215. Liability for Defective Sewers 141 
 
 216. Pollution of Watercourses by Mills, Factories, and* Works 142 
 
 217. Pollution from Mining Operations - 143 
 
 218. Instances in Befouling a Stream 143 
 
 219. Injunction Granted when No Damages are Suffered 144 
 
 220. Person Injured Not Required to Prevent Pollution 144 
 
 221. Pollution by Refuse from Gas-works 145 
 
 222. Pollution of Streams with Refuse from Sawmills and Tanneries 145 
 
 223. Measure of Damages for Pollution of Waters 146 
 
 CHAPTER XIII. 
 
 NAVIGABLE WATERS. PUBLIC AND PRIVATE RIGHTS IN NAVIGABLE WATERS. 
 
 231. -Navigable Waters 147 
 
 232. Uses of Navigable Streams 148 
 
 233. Navigability does Not Depend upon Improvements 149 
 
 234. Rule in Several States 149 
 
 235. Non-tidal Rivers 150 
 
 236. Rights of Public in Navigable Waters 151 
 
 237. As Regards Bathing 151 
 
 238. Navigable Inland Rivers are Usually Public Property 152 
 
 239. Waters Between States 153 
 
 240. Public Easement of Passage over Streams is Paramount 153 
 
 241. Improvement of Navigation Paramount to Individual Rights 154 
 
 242. Obstruction f of Navigable Waters 155 
 
 243. Streams for 'Floating Logs and Timber 157 
 
 244. B?nks and Shores of Navigable Waters and their Use 160 
 
 245. Rules and Restrictions Governing the Use of Navigable Waters 161 
 
 CHAPTER XIV. 
 
 SUBTERRANEAN OR UNDERGROUND WATERS. 
 
 251. Subterranean Waters Defined 162 
 
 252. Percolating Waters 162 
 
 253. Percolating Waters Distinguished from Surface Currents 163 
 
 254. Sapping and Diverting Sources of Springs and Wells 165 
 
 255. Springs and Wells Drained by Construction of Public Works 166 
 
 256. Subsurface Currents Known and Defined 167 
 
 257. Presumption that Waters are Percolating 168 
 
 258. Appropriation and Use of Subterranean Currents 168 
 
 259. Underground Currents Compared with Watercourses 169 
 
 260. Grants of a Right to Underground Waters 169 
 
 261. Rights to Waters of Springs and Wells as between Grantor and Grantee. . 169 
 
 262. Prescriptive Rights in Underground Waters 171 
 
 263. Pollution of Underground Waters 172 
 
 264. Pollution by Oil, Tar, etc., Soaking into Ground 172 
 
 265. Contamination that Amounts to a Nuisance 173 
 
XVI CONTENTS. 
 
 SECTION PAGE 
 
 266. Fouling or Contaminating the Land of Adjoining Owners 173 
 
 267. Negligence an Element in Determining Liability for Fouling Subterranean 
 
 Waters 174 
 
 268. If Acts Amount to Nuisance 175 
 
 269. Negligence may Fix Liability 176 
 
 270. Injunction will Issue to Prevent Fouling of Ground-waters 177 
 
 271. Motive an Element in the Destruction of Underground Waters 177 
 
 272. Percolations which are Artificial or Enforced 178 
 
 274. Negligence to Accumulate Waters under Pressure, and Permit to Escape. 180 
 
 275. Diversion and Obstruction of Underground Currents 181 
 
 CHAPTER XV. 
 
 OIL AND GAS. OWNERSHIP AND APPROPRIATION OF OIL AND GAS. 
 
 281. Oil and Gas Compared to Percolating Water 182 
 
 282. Nature and Character of Natural Gas 182 
 
 283. Gas and Oil in Grants of Mineral Rights 183 
 
 284. Rights Incident to the Operation of Gas- and Oil-wells 184 
 
 285. Gas Companies, their Incorporation,, Organization, and Control 185 
 
 286. Ownership of Minerals and Metals in Land 185 
 
 CHAPTER XVI. 
 
 
 
 ELECTRICITY. PROPERTY RIGHTS AFFECTED BY THE USE AND DISCHARGE OF 
 
 ELECTRICITY. 
 
 291. Properties and Character of Electricity 187 
 
 292. Electricity Compared to Heat, Light, Sound, and Other Vibratory Con- 
 
 ditions 187 
 
 293. Injuries Result from Escaping or Induced Electric Currents 189 
 
 294. Electrical Litigation is Between Owners of Franchises and Not Landowners 191 
 
 295. Litigation over Electrical Disturbances between Public Corporations 192 
 
 296. Superior Rights in Streets Determined by Uses Incident to Travel iyj 
 
 CHAPTER XVII. 
 
 LIGHT AND AIR INCIDENT TO LAND. 
 
 301. Free and Uninterrupted Use of Light and Air Incident to Land 195 
 
 302. Instances of Interference with Light and Air 196 
 
 303. Public and Private Nuisances 197 
 
 304. Ordinances to Prevent Smoke Nuisance 198 
 
 305. Vapors and Odors from Gas-plant 199 
 
 306. Acts that Create Nuisances 200 
 
 307. Easements of Light and Air 200 
 
 308. Interference of Air and Light by Boundary Walls and Overhanging 
 
 Structures 201 
 
 CHAPTER XVIII. 
 
 PROPERTY RIGHTS DEFINED BY BOUNDARY LINES. LATERAL SUPPORT. 
 
 311. Rights of Adjoining or Contiguous Owners 203 
 
 312. Trees and Shrubs on Boundary Line Line-trees 203 
 
 313. Ownership of Trees Growing Near Boundary-line 204 
 
 314. Liability for Destruction of Line-trees 205 
 
 315. Property in Overhanging Fruit of Trees 206 
 
 316. Lopping or Cutting Overhanging Branches 206 
 
CONTENTS. XVli 
 
 317. Actions for Injuries from Overhanging Trees 207 
 
 318. Trees that Overhang a Public Way 208 
 
 319. Trees Growing in Public Ways . 208 
 
 320. Measure of Damages for Destruction of Trees. 209 
 
 321. Rights of Landowner to Lateral Support for his Land by the Land of his 
 
 Neighbor 210 
 
 322. Landowner may Make Improvements Owner must Give Notice 210 
 
 323. Landowner is Entitled to Support of Land Alone 211 
 
 324. Statutory Laws in Large Cities '212 
 
 325. Easement of Extra Support How Acquired 214 
 
 326. Easement to Extra Support Acquired by Prescription 215 
 
 327. In Making Improvements on One's Land the Owner must Exercise Care. 21 - 
 
 328. Notice to Neighbor of Excavation should be Given. . . . 218 
 
 329. Remedy for Injury to Support 218 
 
 330. Measure of Damages for Loss of Support 219 
 
 331. What Care and Diligence must be Exercised 220 
 
 332. Liability for Failure to Exercise Care 221 
 
 333. Precautions to be Taken to Prevent Injury 221 
 
 334. Right of Support for Surface of Ground 222 
 
 335. Lateral Support of a Structure 225 
 
 336. Encroachments or Projections upon Adjoining Land 225 
 
 337. What Constitutes a Party-wall 227 
 
 338. Property in Party-walls 227 
 
 339. Destruction or Demolition of Party- walls 228 
 
 340. Right to Build Party-wall Higher 228 
 
 341. Erection of Wall or Fence to Obstruct Light and View 229 
 
 342. Openings in a Party-wall 230 
 
 343. Agreement of Adjoining Owner to Pay his Share of Cost of Party-wall. . . 230 
 
 CHAPTER XIX. 
 
 INTERFERENCE OR INVASION OF PROPERTY RIGHTS BY SURVEYORS. 
 
 351. Trespass 232 
 
 352. Engineers and Surveyors as Trespassers 233 
 
 353. Trespass Committed by Surveyor or Engineer when a Public Officer 235 
 
 354. Trespass by Government Surveyors 237 
 
 355. Surveyor's Interference with Travel on Highways 239 
 
 PART III. 
 
 DETERMINATION OF THE BOUNDARIES OF LAND. SURVEYS 
 
 AND SURVEYING. 
 
 CHAPTER XX. 
 
 BOUNDARIES IN GENERAL. HOW DESCRIBED, ESTABLISHED, AND MAINTAINED. 
 
 361. Relation of Law and Surveying 241 
 
 362. Boundaries Described in Deed of Conveyance 241 
 
 363. Phraseology of a Description is Important 242 
 
 364. Boundaries Defined. 242 
 
 365. Government Boundaries 243 
 
 366. Boundaries Defined by Monuments 243 
 
 367. Boundaries How Established 243 
 
 368. Boundaries Established by Law 244 
 
 369. Boundaries Described by Natural Objects 245 
 
 370. Boundaries Described by Artificial Monuments 245 
 
XV111 CONTENTS. 
 
 i 
 
 CHAPTER XXI. 
 
 BOUNDARIES ON WATERS. SHIFTING CHARACTER. ACCRETION, EROSION, RELICTION, 
 
 AND RECLAMATION. 
 
 SECTION PAGB 
 
 371. Boundaries Described by Natural Bodies of Waters 247 
 
 372. Boundaries Denned by the Sea are Not Fixed and Permanent 247 
 
 373. Beaches, Shores, and Banks as Boundaries 248 
 
 374. The High- and Low-water Mark 248 
 
 375. Property in Beaches, Shores, and Banks 250 
 
 376. Beaches and Shores Described as Boundaries 251 
 
 377. Streams and Rivers as Boundaries. Effects of Erosion and Accretion... 252 
 
 378. Accretions go to Riparian Owners 254 
 
 379. Accretions to Public Streets and Ways 256 
 
 380. Ownership of Land Re-formed upon a Site Washed Away 257 
 
 381. Accretions to Lands upon Lakes, Ponds, and Harbors 258 
 
 382. What may be Done to Prevent Encroachments or to Promote Accretions. 260 
 
 383. Determination of Boundaries of Land Acquired by Accretion or Reliction 261 
 
 387. Connection of Monuments with Inaccessible and Imaginary Bounds 266 
 
 388. Subdivision of Lowlands Reclaimed 267 
 
 389. Submerged Lands the Subject of Sale, Patent, and Lease 268 
 
 390. Effect of Sudden Changes on Boundaries 268 
 
 CHAPTER XXII. 
 
 BOUNDARIES ON WATERS. LAND BOUNDED BY, ALONG, UPON, OR ON A STREAM OR 
 THE BED, BANK, BEACH, OR SHORE. 
 
 401. Monuments Described as on the Bank or Shore Intention Expressed... 271 
 
 402. Practical, Common-sense Rule Applied 272 
 
 403. Water Regarded as an Element and a Natural Appurtenant to Land 272 
 
 404. Effect of Field Operations on Descriptions of Boundaries 273 
 
 405. Construction of Deed is Largely a Question of Intention 274 
 
 406. Land Bounded At, On, Along, By, or With a Stream or Body of Water. . 274 
 
 407. To the Bank or Shore, thence up the Stream 276 
 
 408. Expressions that do Not Carry Boundary to Water's Edge 279 
 
 409. Middle Line of Streams the Boundary 280 
 
 410. Meander-lines do Not Always Determine the Boundaries 281 
 
 411. Should Area Given Include Bank and Bed of Stream? 283 
 
 412. The Question of Boundaries is Determined by the Laws of the State 284 
 
 413. Law of Boundaries Affected by Early Settlements 284 
 
 414. Boundaries on Navigable Waters 286 
 
 CHAPTER XXIII. 
 
 BOUNDARIES ON LAKES AND PONDS. 
 
 421. Boundaries on Natural Lakes and Ponds 288 
 
 422. Boundaries on Artificial Lakes and Ponds 292 
 
 423. Shore, Beach, Bank, or Water's Edge of Lakes and Ponds 293 
 
 424. Receding of Waters of Lakes and Ponds 294 
 
 CHAPTER XXIV. 
 
 BOUNDARIES OF ISLANDS. 
 
 431. Ownership of Islands 297 
 
 432. Boundaries of Islands 301 
 
CONTENTS. XIX 
 
 CHAPTER XXV. 
 
 BOUNDARIES ON STREETS AND ROADS. 
 
 SECTION PA GE 
 
 441. Property in Streets and Ways 302 
 
 442. Rights of Abutting Owners to the Soil of Streets 303 
 
 443. Ownership of Whole Width of Street 3<H 
 
 444. Rights of Abutting Owners in Other Ways than Streets 304 
 
 445. Boundary Affected by Changes in Street or Way 35 
 
 446. Presumption of Law that Abutting Owners Hold Title to Street 306 
 
 447. Boundary "On," "By," "Along," "Upon" a Public Way 308 
 
 448. Middle Line of Street the Boundary 309 
 
 449. Rule is Well Established in Some States that Center Line of Street is 
 
 Boundary 309 
 
 450. The Intention of the Parties must Prevail 31 1 
 
 451. Intention Expressed by Different Phrases and Clauses Side or Line of 
 
 Street 3H 
 
 452. Intersection of Streets or Roads 312 
 
 453. Boundaries on Private or Unaccepted Streets 3*3 
 
 454. Boundaries on Ways when Land is Described by Reference to a Plat 313 
 
 455. Reservation of Narrow Strip of Land as Boundary of a Village 314 
 
 456. Reverting of Abandoned Streets to Abutting Owners 314 
 
 CHAPTER XXVI. 
 
 BOUNDARIES DETERMINED BY ARBITRATION. 
 
 461. Arbitration a Popular Means of Settling Boundary Disputes 316 
 
 462. Submission of Disputes in Regard to Real Estate 316 
 
 463. Effect of a Submission to Arbitration 317 
 
 464. Determination by Arbitrators is Final 317 
 
 465. What Constitutes a Submission 318 
 
 466. Arbitrators Should be Named ^ 318 
 
 467. Award is Irrevocable and Binding 7 319 
 
 468. Before Award is Made, Submission to Arbitration may be Revoked 320- 
 
 469. Award of Arbitrators Held Not to Affect the Title to Land 320 
 
 470. Disputes Should be Submitted to Arbitration 321 
 
 471. Submission Its Form and Contents 321 
 
 472. Powers of Arbitrator are Sometimes Restricted 321 
 
 473. Mistakes of Surveyor as an Arbitrator 322- 
 
 474. Arbitrator must Not Exceed his Powers 323 
 
 475. Submission to Several Arbitrators 323, 
 
 476. Arbitrators may Not Delegate their Duties and Powers 323. 
 
 477. Ministerial Duties of Arbitrators may be Delegated 324. 
 
 478. Powers of Surveyors as Arbitrators to Summon Witnesses and Conduct 
 
 Investigation 325. 
 
 479. Arbitrators must Receive Evidence 325 
 
 480. Surveyors as Arbitrators must Act Together 326 
 
 481. Notice to Parties of Hearing 326 
 
 482. Compensation of Surveyors as Arbitrators 326 
 
 483. Surveyor's Powers are at an End when Award is Made 327 
 
 484. Form of Award 327 
 
 485. The Award must be Certain and Definite 327 
 
 486. The Award must be Possible 328 
 
 CHAPTER XXVII. 
 
 BOUNDARIES ESTABLISHED BY AGREEMENT OR ACQUIESCENCE. 
 
 491. Settlement of Controversies is Encouraged by the Courts 329 
 
 492. Determination of Boundaries by Mutual Consent 329 
 
 493. Boundaries Designated by Grantor at Time of Transfer 330 
 
XX CONTENTS. 
 
 494. Surveyors may Not Change Boundaries that Parties have Themselves 
 
 Fixed 331 
 
 495. The Agreement and Acquiescence does Not Effect a Conveyance 332 
 
 496. Parol Agreements to Settle Disputed Boundaries 333 
 
 49,, . Proof 01 Agreement and Acquiescence 333 
 
 498. Agreements in Regard to Boundaries Not in Dispute 334 
 
 499. Parties and Grantees may be Bound by Agreements 334 
 
 500. Acquiescence and Occupation Required for What Period 336 
 
 501. Length of Time Required to Occupy and Acquiesce 336 
 
 502. Period of Occupation and Acquiescence Dependent on Express Agree- 
 
 ment 338 
 
 503. Occupation by License is Not Acquiescence or Proof of Agreement 340 
 
 504. Acquiescence under a Mistake 340 
 
 CHAPTER XXVIII. 
 
 ADVERSE POSSESSION. TITLE AND BOUNDARIES TO LAND AFFECTED BY IT. 
 
 511. Land Acquired and Boundaries Determined by Adverse Possession 342 
 
 512. Surveyor should Take Cognizance of his Client's Rights 342 
 
 513. Brief History of Rights by Adverse Possession 343 
 
 514. Possession as Evidence of Title 343 
 
 515. Essential Elements of Adverse Possession to Give Title 344 
 
 516. Possession must be Adverse and Hostile 344 
 
 517. Adverse and Hostile Character of Possession a Question of Intention.... 347 
 
 518. Possession Held under a Mistake may be Adverse and Hostile Color of 
 
 Title 349 
 
 519. Possession by Agreement and Acquiescence is Adverse 35 
 
 520. The Possession must be Actual 35 
 
 521. What Constitutes Adverse Use 351 
 
 522. Land should be Inclosed 354 
 
 523. Payment of Taxes 355 
 
 524. Adverse Possession under Color of Title 355 
 
 525. Adverse Possession must be Open, Visible, and Notorious 356 
 
 526. What is Color of Title 356 
 
 527. Adverse Possession of Mines 35 
 
 528. Owner must have had Notice of Adverse Possession 359 
 
 529. The Possession must be Continuous and not Interrupted 360 
 
 530. What is an Abandonment or Interruption : 361 
 
 531. Exclusive Possession and Interruption Determined by Location and Char- 
 
 acter of Land 3^3 
 
 532. Interference or Overlapping of Title 363 
 
 533. Color of Title and Good F? i'th 364 
 
 534. There can be No Adverse Possession against the Public nor the Repre- 
 
 sentative Government 365 
 
 535. Adverse Possession of Railroad Right of Way 367 
 
 536. Adverse Possession by Railroad Companies 367 
 
 CHAPTER XXIX. 
 
 CONSTRUCTION, INTERPRETATION, AND APPLICATION OF DESCRIPTIONS. 
 
 541. Descriptions in Deeds and Conveyances 369 
 
 542. Parol Proof of Deeds and Descriptions 369 
 
 543. Sufficiency ^ of Description 371 
 
 544. A Description is Sufficient if the Land can be Located 372 
 
 545. Conflicting Parts of Description will be Reconciled if Possible 372 
 
 546. Insufficient, Imperfect, and Ambiguous Descriptions 373 
 
 547. Surplusage in a Description will be Rejected 375 
 
 548. A Particular Description will Control a General Reference or General De- 
 
 scription 375 
 
CONTENTS. XXI 
 
 SECTION PAGE 
 
 549. A General Description will Answer if the Particular Description Fail 376 
 
 550. Effect of Omissions in a Description 377 
 
 551. Certain Parts of Description Omitted may be Supplied 379 
 
 552. Land Described may be Shown to have Belonged to Grantor 380 
 
 553- When Description Applies to Two Estates. . . . . . 381 
 
 554. Land Described by Familiar Name in Community 382 
 
 5540. Land Described as a Part of a Whole 383 
 
 555. Insufficient Description Cured by Reference to a Map or Deed 384 
 
 556. Grantee or Devisee Uncertain 386 
 
 557. Intention of Parties will Prevail if it can be Ascertained from Deed 387 
 
 558. When Evidence of Intention of Parties is Admissible 387 
 
 559. Conveyance Not Located Give Undivided Interest 388 
 
 560. Signs, Symbols, and Abbreviations in Descriptions '. 39 
 
 561. Judicial Notice of Meaning of Abbreviations, etc. . . . , 389 
 
 562. Poor Spelling and Grammatical Errors in Description 390 
 
 CHAPTER XXX. 
 
 DESCRIPTION. CONFLICT OF CALLS. 
 
 571. Governing Factors in Description That which is Most Certain will Con- 
 
 trol 391 
 
 572. The Intention of Parties will Prevail 392 
 
 573. Controlling Factors when Intention is Not Clear Monuments Control... 393 
 
 574. It is the Policy of the Law to Maintain Existing Boundaries 394 
 
 575. Relative Importance of Different Calls in a Description 395 
 
 576. Monuments, if Identified, Control all Other Calls ' 395 
 
 577. Monuments Control in Government Surveys 396 
 
 578. When Monuments are Lost or Destroyed 397 
 
 570. In Government Surveys it is the Original Monuments that Control 398 
 
 580. Identification of Monuments Evidence Admissible 399 
 
 581. Fences as Monuments 400 
 
 582. Natural Monuments, as Roads, Streams, and Ways 400 
 
 583. Calls for Adjoiners against Courses and Distances 401 
 
 584. Calls for Adjoiners against Points of Compass 402 
 
 585. Adjoining and Cornering Estates 403 
 
 586. Calls for Courses against Distances 403 
 
 587. Courses Held to Govern Distances 404 
 
 588. Calls for Courses and Distances against Area or Acreage 406 
 
 589. Quantitv of Land a Factor in a Description 406 
 
 500. Effect of Representations as to Quantity 407 
 
 591. ' More or Less "'Meaning of Words when Quantity is Stated 410 
 
 592. ' More or Less ' Variation in Quantity Stated Permissible 410 
 
 593. I More or Less ' when Land is Described by Metes and Bounds 411 
 
 595. " More or Less ' Applied to Linear Distances 412 
 
 596. " More or Less ' in Trade or Commerce 412 
 
 507. Excess or Deficiency How Distributed 412 
 
 508. Description by Lot Number of Map or Plan Referred to 413 
 
 5^0. Moiitin*ita Designated on Man against Monuments on Land 414 
 
 600. Conflict Between Plat and Field-notes of Public Land 416 
 
 601. OMer and Later Surveys and Grants Their Relative Value 417 
 
 <~7. A^irnnths. Bearings, and Points of Compass Meaning of Words 417 
 
 601. Meridians, True or Magnetic 4iS 
 
 605. Measurements to and from Objects Described as Monuments 419 
 
 606. Measurements " to or along " a Road 420 
 
 607. Measurements to Adjoining Tracts or Structures 421 
 
 CHAPTER XXXI. 
 
 DETERMINATION AND PROOF OF BOUNDARIES. 
 
 6n. Determination of Boundaries is Usuallv for Jury .-. . . 422 
 
 612. Court should Leave Jury Unbiased to Determine Boundary 423 
 
XX11 CONTENTS. 
 
 613. Maps and Plans Referred to in a Deed Become a Part Thereof 425 
 
 614. Description Complete, and General Reference to Maps and Deeds 425 
 
 615. Maps and Plans Referred to are Evidence of Boundaries 426 
 
 616. Copies of Maps and Records as Evidence 426 
 
 617. Admission ot Field-notes' ^as Evidence 427 
 
 618. Government Maps as Evidence 427 
 
 619. Testimony of Old Inhabitants as to Location of Boundary Lines 427 
 
 620. Traditional Proof of Boundaries 428 
 
 621. Testimony of Old Inhabitants against Paper Title 430 
 
 622. Ancient Maps and Documents 430 
 
 623. Computing the Age of a Document 431 
 
 624. Maps and Documents Not Received as Evidence 433 
 
 625. Evidence of Declarations by Deceased Persons 433 
 
 '626. Person Making Declarations must have had Peculiar Means of Knowing 
 
 Boundaries 435 
 
 627. Opinions of Witnesses Not Admissible 435 
 
 628. Surveyor's Opinion as Evidence when Based upon Knowledge of Facts. .. 436 
 
 629. Person must Not have had an Interest in Making such Declarations 437 
 
 630. Starting-point in Making a Survey 437 
 
 631. Evidence to Establish Starting-point of Survey 438 
 
 632. Survey made by Direct or Reverse Calls 439 
 
 633. Methods of Closing a Survey in Certain Cases of Error 440 
 
 PART IV. 
 
 EASEMENTS. INCORPOREAL RIGHTS. 
 CHAPTER XXXII. 
 
 EASEMENTS IN GENERAL. 
 
 641. Easement Defined 443 
 
 642. How Easements are Acquired or Created. 444 
 
 643. How an Easement may be Lost or Extinguished 445 
 
 644. Character of Easement Not an Interest in the Fee 445 
 
 645. Easements Extinguished bv Merger of Estates 445 
 
 646. Parties Entitled to Enjoy Easement 446 
 
 647. Rights and Liabilities of the Parties to the Easement Maintenance of 
 
 Easement 44& 
 
 648. Destruction and Restoration of Easement 447 
 
 649. Abandonment of Easements 44 
 
 650. Easements Lost by Non-user 449 
 
 651. Extent and Mode of Use of an Easement 45O 
 
 CHAPTER XXXIII. 
 
 LICENSE, REVOCABLE AND IRREVOCABLE. 
 
 661. License Distinguished from Easement 452 
 
 662. License to Divert Waters by Dams 453 
 
 66-*. Licenses held Not Revocable on Ground of Contract and Estoppel 454 
 
 664. License to Build Water-works and Sewers 455 
 
 665. License to Build and Operate Railroad 456 
 
 666. Party-walls, Stairways, and Passageways, etc 457 
 
 66*7. License of Purchaser to Enter and Take 457 
 
 668. License the Subject of Transfer. 458 
 
 66p, Revocation of License 458 
 
CONTENTS. XX111 
 
 CHAPTER XXXIV. 
 
 PRESCRIPTION AND PRESCRIPTIVE RIGHTS. 
 SECTION PACK 
 
 671. Importance of Easements in Engineering and Architectural Operations.. 460 
 
 672. Easements Acquired by Prescription 461 
 
 673. Differences between Prescription and Limitations 461 
 
 674. Presumption after Use for Statutory Period Not Easily Rebutted 462 
 
 675. The Use should be by Acquiescence and Not by Force 462 
 
 676. The Prescriptive Use must be Open and Adverse and Not Interrupted. . . . 463, 
 
 677. The Use Must Not be Interrupted 464 
 
 678. What will Amount to an Interruption 464 
 
 679. Instances of Interruption 465 
 
 680. Method or Means of Interruption 465 
 
 681. Prescriptive Rights Limited to the Prescriptive Use '. 466 
 
 682. Prescriptive Rights against the State or the Public 468 
 
 683. Prescriptive Rights Acquired by the Public in Ways 469. 
 
 684. Encroachments upon Public Ways 471 
 
 685. Prescriptive Rights Acquired over Railways 471 
 
 686. Tacking the Use of Successive Holders 473 
 
 687. What is Privity of Estates 474. 
 
 688. Disabilities to which Owner of Servient Estate is Subject 475 
 
 689. Prescriptive Rights in General 479, 
 
 CHAPTER XXXV. 
 
 DEDICATION OF RIGHTS IN LAND TO PUBLIC. 
 
 701. Origin and Character of Dedication 480 
 
 702. Purposes of Dedication 481 
 
 703. What Constitutes Dedication 482 
 
 704. Who may Dedicate 484 
 
 705. Effect of Dedication 485 
 
 706. Acceptance of Easement Dedicated. ] ] 486 
 
 707. Non-user of Right Dedicated ' \ 487 
 
 708. Limits and Qualifications ' 4 88 
 
 709. Instances of Dedication 489 
 
 CHAPTER XXXVI. 
 
 EASEMENTS. RIGHTS OF WAY IN GENERAL. 
 
 711. Rights of Way How Created 4QI 
 
 712. Rights of Way the Subject of a Grant ' 402 
 
 713- Maintenance of Right of Way over Another's Land...! 4<r? 
 
 714. Rights of Way Appurtenant to Land 'Tun 
 
 715. Implied Rights of Way by Necessity 
 
 716. Change of Location of Right of Way. . 4oe 
 
 717- Obstructing a Right of Way '.', < 
 
 718. Erection of Awnings, etc., in a Street log 
 
 719- Easement of Drain over or through Land. . 
 
 720. Bridges a Part of Highway 
 
 721. When Occupation of Public Ways may be Authorized.' ..'.'.'.'.'.'.'.'.'.'. \ '. \ '. \ \ [ 499 
 
 CHAPTER XXXVII. 
 
 RIGHT OF WAY OF RAILROAD. 
 
 731. Character of Railroad Right of Way 
 
 732. Right of Way How Acquired. . . . 
 
 733- Right of Way Secured by Purchase. ... 4 
 
XXIV CONTENTS. 
 
 SECTION PAGE 
 
 734. Grantor of Right of Way 506 
 
 735. Right of Way on Condition 506 
 
 736. Restrictions on Use of Right of Way 508 
 
 737. Rights of Way by Condemnation 509 
 
 738. Railroad Right of Way Acquired by Dedication and Prescription 509 
 
 739. Widths of the Right of Way 509 
 
 740. Rights of Way by License Implied Grants 510 
 
 741. Revocable Character of License 510 
 
 742. Obstructions to the Right of Way 512 
 
 743. Location of Railroad 512 
 
 744. Elements to Determine the Location of a Railroad 512 
 
 745. Discretion in Selecting a Route Not Definitely Fixed by Charter 513 
 
 746. Discretion must be Honestly Exercised in Locating Road 514 
 
 747. Charter Authorizes but One Location of the Road 514 
 
 748. Effect of Change in Location on Subscriptions Paid or Pledged 515 
 
 749. Exercise of Authority to Change Route of Road 515 
 
 750. Power to Change Location Limited to Necessities of Case 515 
 
 751. Prior Location and Occupation of Right of Way 516 
 
 752. Maps, Plans, etc., Describing the Location 517 
 
 753. Terminals of a Railroad 518 
 
 754. Property in Location 518 
 
 755. Abandonment of Location or Right of Way 519 
 
 756. Steam Railroads in Streets and Highways 520 
 
 757. Liability of Municipality for Wrongful Acts of Railroad Company 521 
 
 758. Railroad Company's Liability 522 
 
 759. Abutting Owners have Right to Unobstructed Street 522 
 
 760. Statutes in Regard to Steam Railroads on Streets 524 
 
 761. Liability for Injury to Abutting Estates 525 
 
 762. Measure of Damages to Abutting Property 525 
 
 763. Benefits to Property from Railroads 526 
 
 764. Injuries to Abutting Owners from Elevated Railways in Streets 527 
 
 765. Property Rights may Not be Destroyed or Impaired by Legislative Action 527 
 
 CHAPTER XXXVIII. 
 
 RIGHTS OF WAY OF STREET RAILWAY. 
 
 781. Street Railway Not an Additional Burden upon Streets 528 
 
 782. The Right to Use Streets for Rights of Way 529 
 
 783. Obligation to Keep Street Unobstructed 5^9 
 
 784. Priority in Occupying Streets 53 
 
 785. Rights of Street Railway in Street to the Exclusion of Others 530 
 
 786. Power of Municipal Corporations to Grant a Right of Way 531 
 
 787. Consent of Municipal Authorities to Occupy Streets. . 532 
 
 788. Obligations and Conditions Imposed upon Street-railway Company 534 
 
 789. Consent Implied, Revoked, or Modified 534 
 
 790. Consent of Abutting Owners or of City 535 
 
 791. Time Limit for Completion of Road 536 
 
 792. Exclusive Privileges Not in Favor 536 
 
 793. Construction of Street Railways 536 
 
 794. Liability for Defective Track and Structures 537 
 
 795. Construction of Street-railway Franchises 538 
 
 796. Forfeiture of Street-railway Franchise 539 
 
 797. Unauthorized Use of Streets and Ways 539 
 
 798. Electric Trolley Lines upon Streets and Ways 540 
 
 799. Change of Motive Power on Street Railway 541 
 
 CHAPTER XXXIX. 
 
 RIGHT OF WAY FOR TELEGRAPH AND TELEPHONE LINES. 
 
 811. Telegraph and Telephone Lines in Public Ways 542 
 
 812. Authority to Occupy Streets must Come from Legislature 542 
 
CONTENTS. XXV 
 
 813. Restrictions Imposed by Legislature , 543 
 
 814. Telegraph Lines a Burden upon Streets 543 
 
 815. Owner of Street Entitled to Compensation for Additional Burden 544 
 
 816. Measure of Damages for Use of Street for Telegraph Lines 545 
 
 817. Telegraph Company's Liability for Injuries by Lines and Poles 546 
 
 818. Telegraph and Telephone Line on Railroad Right of Way 547 
 
 819. No Exclusive Rights for Telegraph Lines on Railroads 548 
 
 820. Government Grants of Rights of Way 548 
 
 821. Ways that are Post-roads 549 
 
 822. State Statutes Superseded by United States Laws 550 
 
 823. Restrictions and Conditions Imposed by Laws and Ordinances 550 
 
 824 .Telegraph Lines across Navigable Waters 551 
 
 825. Proceedings to Condemn a Right of Way .' 551 
 
 826. Liability for Negligence in Erecting and Maintaining Telegraph Lines... 551 
 
 827. Rights Attending a Prior Occupation of Right of Way 552 
 
 828. Interference with Telephone Lines by Induction 553 
 
 829. Protection of Wires from Contact with Other Wires 554 
 
 830. Disturbance and Damage from Conduction 554 
 
 831. Electric-railway Lines and Telegraph and Telephone Circuits 555 
 
 832. Complainant must have Exercised Care 557 
 
 833. Telegraph Lines are Avenues of Interstate Commerce 55 
 
 834. Telegraph and ie^pauae ^^...^.... * .. 
 
 CHAPTER XL. 
 
 RIGHTS OF WAY IN CONDUITS, PIPE-LINES, ETC., FOR WATER, OIL, AIR, GAS, AND 
 
 ELECTRICITY. 
 
 841. Rights of Way for Subways and Underground Conduits 559 
 
 842. Pipe-lines 560 
 
 843. Pipe-lines in Public Ways How Authorized 560 
 
 844. Subways Constructed under License 561 
 
 845. Right to Enter and Open and Occupy Streets 562 
 
 840. The Act of Granting the Consent is Discretionary. 562 
 
 847. Property in Pipe-lines 563 
 
 848. Grants of Exclusive Use of Streets for Subways 564 
 
 849. Care of Subways Negligence 565 
 
 850. Measure of Damages 566 
 
 851. Other Rights of Way 566 
 
 PART V. 
 
 FRANCHISES. 
 
 CHAPTER XLI. 
 
 CHARACTER AND KINDS OF FRANCHISES. 
 
 861. Character of a Franchise 567 
 
 862. Public Character of Corporations 567 
 
 863. Franchise of a Corporation 569 
 
 864. Power of Eminent Domain 570 
 
 865. Right of Exemption from Taxation 570 
 
 866. Right to Municipal Aid 571 
 
 867. Right to a Monopoly 571 
 
 868. Contract Obligations of a Franchise 571 
 
XXVI CONTENTS. 
 
 869. Franchises are Granted Subject to Police Power 572- 
 
 870. Franchises which are Subject to Legislation Affecting Remedies 573 
 
 871. The Right to Amend or Repeal Charters Reserved 574 
 
 872. Power to Amend and Repeal Limited 577 
 
 873. Limitation as to Property and Contracts 577 
 
 874. Mortgage Sale and Transfer of Franchises 578 
 
 875. Transfer of Franchise of Eminent Domain 580 
 
 876. Transfer of Franchises of Exemption from Taxation 581 
 
 877. Sale of Franchises on Execution 582 
 
 878. Remedies against Corporations for the Enforcement of Public Duties 582 
 
 879. Extinguishment of Corporate Franchises 583 
 
 880. Extinguishment of Franchise on Contingency 583 
 
 881. Extinguishment by Surrender 583 
 
 882. Extinguishment by Act of Legislature 584 
 
 883. Extinguishment by Failure of an Integral Part 584 
 
 884. Extinguishment by Forfeiture 585 
 
 885. Effect of Extinguishment 585 
 
 886. Taxation of Franchises 585 
 
 887. Corporate Charters and Franchises 586 
 
TABLE OF CASES. 
 
 References are to sections. 
 
 Abbey v. McPherson (Kan. App.) (41 Pac. 
 
 Rep. 978) v 584, 603 
 
 Abbott v. Abbott (51 Me. 575)............... 518 
 
 v. Kansas City, etc., R. Co. (83 Mo. 
 
 271). 
 
 Manhattan R. Co. (122 N. 
 
 136 
 
 Abendroth ~. - - , 
 
 Y i) 817 
 
 Abilene, City of, v. Wright (46 Pac. Rep. 
 
 7 ic) 706 
 
 Acton v. Blundell (12 M. & W. 327), 
 
 253, 254, 269, 275 
 
 Adams v. Besse (2 Conn. 481)... ............ 431 
 
 v. Durham & N. R. Co. (N. C.) (14 
 
 S. E. Rep. 857) "4 
 
 v. Half (Tex.) (24 S. W. Rep. 334) 612 
 
 v. Harrington (Ind.) (14 N. E. Rep. 
 
 603 [1888]) 549, 56o 
 
 v. Haskell (16 Wend. 285) 501 
 
 v. Marshall (138 Mass. 338 [1885]) 335 
 
 v. Moll (6 Pa. Super. Ct. 380 [1898])... 107 
 
 v. Rockwell (16 Wend. 285) 502 
 
 285) 
 . Y.) 
 
 705 
 
 ~v. Ulmer (Me.) (39 Atl. Rep. 347 [1897]) 242 
 
 Adrian W. W. v. Adrian (64 Mich. 584) 147 
 
 JEtna. Mills v. Brookline .(127 Mass 69).. 143, 272 
 
 v. Waltham (126 Mass. 422) 62,272 
 
 Agawam Canal Co. v. Edwards (36 Conn. 
 
 476) 406 
 
 Aiken v. Ketchum (39 Barb. 400) 316 
 
 Airey v. Kimble (42 Atl. Rep. 533) 587 
 
 v. Kunkle (C. P.) (6 Pa. Dist. Rep. i, 
 
 18 Va. Co. Ct. 620) 587 
 
 Akron W. Co. v. Brownless (10 Ohio Cir. 
 
 Ct. Rep. 620) 148 
 
 Alameda Macadamizing Co. v. Williams 
 
 (Cal.) (12 Pac. Rep. 530 [1887]) 449 
 
 Alcorn v. Sadler (Miss.) (.14 So. Rep. 444). 185 
 Alder Gulch Con. Mfg. Co. v. Hayes (6 
 
 Mont. 31) 75, 77 
 
 Aldrich v. Drury (8 R. I. 554) 73 1 
 
 v. Tripp (11 R. I. 141) 145 
 
 Aldridge v. Cheshire R. Co. (21 N. H. 359). 255 
 Alexander v. Gibbon (N. C.) (24 S. E. 
 
 Rep. 748) 529 
 
 v. Gossett (S. C.) (39 Alb. Law Jour. 
 
 134 [1888]) 620 
 
 v. Milwaukee (16 Wis. 247) 90 
 
 v. United States (25 Ct. of Cl. '87) 255 
 
 Alhambra W. Co. v. Richardson (Cal.) (14 
 
 Pac. Rep. 379) 143 
 
 Alien v. Worsham (49 S. W. Rep. 525 
 
 [1899]) 620 
 
 Allaire v. Ketcham (N. J. Ch.) (35 Atl. 
 
 Rep. 900) 600 
 
 Allan v. Comme (n A. & E. 759) 681 
 
 Allday v. Whittaker (Tex.) (i S. W. Rep. 
 
 794) 555 
 
 Allen v. Atlantic, etc., Tel. Co. (N. Y.) (21 
 
 Hun 22) 826 
 
 v Chippewa Falls (52 Wis. 430) 85 
 
 v Evans (Mass.) (637 N. E. Rep. 570.340 
 
 v Fisk (42 Vt. 462) 669 
 
 v Hooper (50 Me. 373) 45 
 
 v McCorkle (Tenn.) (3 Head 181).... 85 
 
 v McKay (52 Pac. Rep. 828) 522 
 
 Allis v. Field (Wis.) (62 N. W. Rep. 85).... 529 
 
 Allison v. Little (85 Ala. 512 [1889]) 351, 352 
 
 Alsante v. Charlestown Bridge Co. (41 Fed. 
 
 Rep. 365) 121 
 
 Alston v. Grant (3 El. & Bl. 128) 267 
 
 Alton v. Co. (12 111. 60) 708 
 
 v. Meeuwenberg (Mich.) (66 N. W. 
 
 Rep. 571) 706 
 
 Altoona v. Shelienberger (Pa. Com. PI.) 
 
 (6 Pa. Dist. Rep. 544 [1897]) 150 
 
 Alves v. Henderson (Ky.) (16 B. Mon. 
 
 131) 705 
 
 Amer. Bank Note Co. v. New York 
 
 El. R. Co. (N. Y. App.) (29 N. E. Rep. 
 
 302) 307 
 
 Amer R. W. Co. v. Ansden (6 Cal. 443)... 243 
 Amer. Teleph. Co. v. Pearce (71 Md. 535).. 821 
 American Tel. & Tel. Co. v. Smith (Md.) 
 
 (18 Atl. Rep. 910) .- 444 
 
 Ames v. Cannon R. Mfg. Co. (27 Minn. 
 
 245) 85 
 
 Amy v. Watertown (Wis.) (22 Fed. Rep. 
 
 418) 688 
 
 Anaheim W. Co. v. Semi-Tropic W. Co. 
 
 (64 Cal. 185) 71,75 
 
 Anchor Brew. Co. v. Dobbs Ferry (Sup.) 
 
 (32 N. Y. Supp. 370 186 
 
 Anderson v. Baughman (7 Mich. 79) 545 
 
 v. Burnham (Kan.) (34 Pac. Rep. 1056) 521 
 
 v. Henderson (111.) (16 N. E. Rep. 
 
 232 [1888]) 179 
 
 v. Jackson (Tex.) (13 S. W. Rep. 30).. 499 
 
 v. McCormick (Oreg.) (22 Pac. Rep. 
 
 1062) 573 
 
 v. Richardson (Cal.) (28 Pac. Rep. 
 
 679) 575 
 
 Andrews v. National F. & P. Works (C. 
 
 C. A.) (61 Fed. Rep. 782) '. 874 
 
 Andries v. Detroit, etc., Ry. Co. (Mich.) 
 
 (63 N. W. Rep. 526) 685 
 
 Angle v. Young (Tex.) (25 S. W. Rep. 
 
 798) 626 
 
 Anglecey v. Colgen (N. J.) (9 Atl. Rep. 
 
 105 [1887]) 336, 599 
 
 Anthony v. Haney (8 Bing. 186) 315 
 
 A. P. Cook Co. v. Beard (Mich.) (65 N. 
 
 W. Rep. 518) 89,681 
 
 Aransas Pass Col. Co. v. Flipper (Tex.) 
 
 (29 S. W. Rep. 813) 579,58o 
 
 Arave v. Idaho C. Co. (Idaho) (46 Pac. 
 
 Rep. 1024) 87, 88 
 
 Archer v. Helm (Miss.) (12 So. Rep. 702) 628 
 
 v. Salinas City (Cal.) (28 Pac. Rep. 
 
 839) 703, 706 
 
 Armstrong v. Ristian (5 Md. 256) 514 
 
 v. Vicksburg, etc., R. Co. (La.) (16 
 
 So. Rep. 468) 352 
 
 Arn v. Mathews (Kan.) (18 Pac. Rep. 
 
 [1888]) 555 
 
 Arnold v. Foot (N. Y.) (12 Wend. 330).... 60 
 Ashcorn v. Smith (Pa.) (2 P. & W. 211).... 591 
 Asher Lumber Co. v. Lunsford (Ky.) (30 
 
 S. W. Rep. 968) A 406 
 
 Ashton v. Blundell (12 M. & W. 524) 252 
 
 Atchinson v. Challis (9 Kan. 603) 186 
 
 Atchison v. Peterson (i Mont. 561) 75 
 
 v. Peterson (20 Wall. 507) 73,75 
 
 xxvii 
 
XXV111 
 
 TABLE OF CASES. 
 
 Atchison & N. R. Co. v. Boerner (Neb.) 
 
 (51 N. W. Rep. 842) ......... . ............ 759 
 
 Atchison, etc., R. Co. v. Mecklin (23 Kan. 
 
 167) ........................................ 751 
 
 Atkins v. Tompkins (Mass.) (29 N. E. 
 
 Rep. 627) ............. ...................... 661 
 
 Atkinspn v. Marietta, etc., R. Co. (15 Ohio 
 
 St. 21) ...................................... 749 
 
 - - v. Smith (Va.) (24 S. E. Rep. 901).... 529 
 
 Atlantic, etc., Tel. Co. v. Chicago, etc., 
 
 R. Co. (U. S.) (6 Biss. 158) ............... 821 
 
 ' 
 
 Atty.-Gen'l v. Gee (Eng.) (10 Eq. 131). .206, 207 
 
 - v. Gt. Eastern R. Co. (23 L. T. 344) 
 
 - v. Hackney Board | (Eng.) (L. R. 
 
 ^23 L. T. 344).. 60, 63 
 
 20 
 
 Eq. 626) " '..... ~ i 211 
 
 v. Lonsdale (7 L. R. Eq. 377) 242 
 
 v. Morris & Essex Ry. Co. (19 N. J. 
 
 Eq. 386 [1869]) 685,756 
 
 v. Steward (20 N. J. Eq. 415) 209 
 
 v. United Kingdom Tel Co. (Eng.) (30 
 
 Beav. 287) 811 
 
 v. West. Wis. R. Co. (36 Wis. 466).... 749 
 
 v. Woods (108 Mass. 439) 232 
 
 Auburn, City of, v. Union W. P. Co. (Me.) 
 
 (38 Atl. Rep. 561 [1897,]) 54, 60 
 
 Augusta v. Burann (Ga.) (19 S. E. Rep. 
 
 820) 718 
 
 Augusta, City Council of, v. Busim (Ga.) 
 
 (19 S. E. Rep. 820) 666 
 
 Aurora v. Lode (93 111. 521) 188 
 
 v. Reed (57 111. 30) 180 
 
 Austin v. Andrews (Cal.) (16 Pac. Rep. 
 
 546 [1888]) 625 
 
 Austin v. Brown (W. Va.) (17 S. E. Rep. 
 
 207) 516 
 
 v. Chandler (Ariz.) (42 Pac. Rep. 483. 75 
 
 v. Hudson R. R. (25 N. Y. 338, 346) ... 331 
 
 Austin, etc., R. Co. v. Anderson (Tex.) (19 
 
 S. W. Rep. 1025) 138 
 
 Austrian v. Davidson (21 Minn. 117 [1874]) 551 
 Avers v. Penn. R. Co. (N. J.) (3 Atl. Rep. 
 
 885) 708 
 
 Avery v. Empire W. Co. (82 N. Y. 582) .... 135 
 Ayers v. Beaty (Tex.) (24 S. E. Rep. 366) . . 631 
 Axline v. Shaw (Fla.) (17 So. Rep. 411) 
 
 407, 414 
 
 B. 
 
 Babcock v. Herbert (3 Ala. 392) 240 
 
 Babson v. Tainter (Me.) (10 Atl. Rep. 63 
 
 [1887]) 376, 421 
 
 Backus v. Burke (Minn.) (65 N. W. Rep. 
 
 459) 521 
 
 Bader v. Zeise (44 Wis. 96) 519 
 
 Badger v. Batavia Paper Co. (70 111. 302).. 8 
 Bailey v. Baker (Tex.) (42 S. W. Rep. 124) 495 
 
 v. Surges (11 R. I. 330 [1877]) 381 
 
 v. Knapp (Me.) (9 Atl. Rep. 356 [1887]) 5540 
 
 v. Sweeney (N. H.) (9 Atl. Rep. 543 
 
 [1887]) 444 
 
 v. Woburn (126 Mass. 416) 272 
 
 Bakeman i<. Talbot (31 N. Y. 366) 648 
 
 Baker v. Brown (55 Tex. 377) 71 
 
 v. Chicago, etc., R. Co. (57 Mo. 265).. 735 
 
 v. Johnson (21 Mich. 319) 701,702,706 
 
 v. Morton (U. S.) (12 Wall. 150) 48 
 
 v. Normal (81 111. 108)... 319 
 
 v. Rice (Ohio) (47 N. E. Rep. 654 
 
 [1897]) 7" 
 
 v. Squire (i Mo. App. Rep. 683) 709 
 
 St. Paul (8 Minn. 491) 706 
 
 v. Willard (50 N. E. Rep. 620) 307 
 
 Baldwin v. Brown (16 N. Y. 363) 501 
 
 v. Durfee (Cal.) (48 Pac. Rep. 724)... 522 
 
 v. Taylor (Pa. Sup.) (31 Atl. Rep. 250) 666 
 
 Ball v. Nye (99 Mass. 582) 267 
 
 Ballard v. Demmon (Mass.) (31 N. E. Rep. 
 
 635) 688 
 
 1;. Struckman (111.) (14 N. E. Rep. 682 
 
 [1888]) 89 
 
 v. Tomlinson (Eng.) (29 Ch. Div. 115, 
 
 125) 266, 267 
 
 Ballowe v. Hillman (Ky.) (37 S. W. Rep. 
 
 950) 555, 589 
 
 Baltimore v. Fear (Md.) (33 Atl. Rep. 637) 709 
 Baltimore v. Merryman (39 Atl. Rep. 98) . . 54 
 
 v. Warren Mfg. Co. (59 Md. 96) 202,208 
 
 Baltimore & O. R. Co. v. Gould (Md.) 
 
 (8 Atl. Rep. 754 [1887]) 453,455 
 
 Baltimore & S. P. R. Co. v. Hackett (Md.) 
 
 (39 Atl. Rep. 510 [1898] 119 
 
 Baltimore, etc., Co. v. Algire (63 Md. 
 
 319) 663, 741 
 
 Baltimore Brew. Co. v. Ramstead (Md.) 
 
 (28 Atl. Rep. 273) 190 
 
 Baltimore, City of, v. Frick (Aid.) (33 Atl. 
 
 Rep. 435) 707 
 
 Bancroft v. Walt (Com. PI.) (6 Ohio Dec. 
 
 22) 151 
 
 Bangor House v. Brown (33 Me. 309) 453 
 
 Bankhardt v. Houghton (27 Beav. 425) 741 
 
 Banks v. Collins (Ky.) (39 S. W. Rep. 519) 528 
 
 v. Ogden (2 Wall. 57) 379,578 
 
 Barbour v. Lyddy (Cir. Ct.) (49 Fed. Rep. 
 
 896) 714 
 
 Barclay v. Howell's Lessee (U. S.) (6 Pet. 
 
 498) 620, 707 
 
 Bardwell v. Ames (Mass.) (22 Pick. 333). 406, 431 
 
 Bare v. Hoffman (79 Pa. St. 71) 104,194 
 
 Barker v. Dale (Pa.) (3 Pittsb. Rep. 190).. 283 
 Barkley v. Tieleke (2 Mont. 59) 75,76,77 
 
 V. Wilcox (86 N. Y. 140) 1720 
 
 Barlow v. Chicago, etc., R. Co (29 la. 276) 754 
 Barnard v. Comm'rs (71 111. App. 187 
 
 [1897]) "8 
 
 v. Hinckley (10 Mich.) 459) 240 
 
 v. Shirley (Ind.) (47 N. E. Rep. 671 
 
 [1897]) 216 
 
 v. Shirley (Ind.) (34 N. E. Rep. 600 
 
 [1893]) 208 
 
 Barnes v. Sabron (10 Nev. 217) 75 
 
 V. Marshall (68 Cal. 569) 134 
 
 Barney v. Keokuk (94 U. S. 324). 53, 164, 238, 431 
 Barnhart v. Ehrhart (Oreg.) (54 Pac. Rep. 
 
 195 [1898]) 406, 410 
 
 Baron v. Davis (4 N. H. 338) 243 
 
 Barre R. Co. v. Montpelier & W. R. Co. 
 
 (Vt.) (17 Atl. Rep. 923) 75i 
 
 Barre W. Co., In re (62 Vt. 27) 62 
 
 Barrett v. Metcalfe (Tex. Civ. App.) (33 
 
 S. W. Rep. 758) 74 
 
 77. Mt. Greenwood Cem. Ass'n (111. 
 
 Sup.) (42 N. E. Rep. 891) 208 
 
 v. Rockport Ice Co. (84 Me. 155).... 165 
 
 Barrows v. Fox (Col.) (32 Pac Rep. 811).. 75 
 Barry v. Edlavicht (Md.) (33 Atl. Rep. 170) 358 
 
 v. Peterson (48 Mich. 263) 182 
 
 Bartholomew v. Austin (Tex. U. S. C. C. 
 
 A.) (85 Fed. Rep. 359 [1898]) 147 
 
 . Hamilton (105 Mass. 239) 8 
 
 Bartlett v. Ambrose (78 Fed. Rep. 839) 526 
 
 Barton v. Union Cattle Co. (Neb.) (7 L. 
 
 R. A. 457 [1889]) 208,209 
 
 Barus v. Hannibal (71 Mo. 449) 105 
 
 Basey v. Gallagher (20 Wall. 6?o) 73,75 
 
 Bassett v. Martin (Tex.) (18 S. W. Rep. 
 
 587) 553 
 
 v. Salisbury Mfg. Co. (43 N. H. 569). 86, 275 
 
 v. Sherrod (Tex.) (35 S. W. Rep. 312), 
 
 554, 555, 559 
 Bass Lake Co. v. Hollenbeck (n Ohio Cir. 
 
 Ct. Rep. 508) 388 
 
 Batchelder v. Keniston (51 N. H. 496) 383 
 
 v. Wakefield (Mass.) (8 Cush. 243).... 703 
 
 Bates v. State (31 Ind. 72) 163 
 
 Battner v. Baker (Mo.) (18 S. W. Rep. 
 
 9") 502 
 
 Bauer v. Gottmanhansen (65 111. 499) .. 500 
 
 v. Taylor (i Nev. & M. 13) 704 
 
 Bayard v. Hargrove (45 Ga. 342) 708 
 
 Bay City Gas Light Co. v. Industrial 
 
 Works (28 Mich. 182) 387 
 
 Bavzer v. McMillan Mill Co. (Ala.) (16 
 
 So. Rep. 923) 243 
 
 Beach v. Sterling Iron & Zinc Co. (N. J. 
 
 Ch.) (33 Atl. Rep. 286)... 206, 207, 214, 216. 218 
 Beal v. Asberry (Tex.) (20 S. W. Rep. 115) 626 
 
 Beaman v. Russell (20 Vt. 205) 47 
 
 Bean v. Bachelder (74 Me. 202) 518 
 
TABLE OF CASES. 
 
 XXIX 
 
 Beardslee v. French (7 Conn. 125) 707 
 
 Beardsley v. Crane (Minn.) (54 N. W. Rep. 
 
 740) SOD, 501, 502, 577, 579 
 
 Bear Lake & R. W. & Irr. Co. v. Garland 
 
 (17 Sup. Ct. Rep. 7) 75 
 
 Bear River & Auburn W. & M. Co. v. 
 
 N. Y. Mg. Co. (8 Cal. 327) 75 
 
 Beasley v. Shaw (6 East 208) 212 
 
 Beatty v. Kurtz (U. S.) (2 Pet. 266) 703 
 
 Beaty y. Dor.ier (Ky.) (34 S. W. Rep. 524) 555 
 v. Robertson (Ind. Sup.) (30 N. E. 
 
 Rep. 706 [1892]) 600 
 
 Beaver Brook Res. & C. Co. v. St. Vrain 
 
 Res. & Fish Co. (Colo. App.) (40 Pac. 
 
 Rep. 1066) 75, 76 
 
 Becker v. Marble Cr. Irr. Co. (Utah) (49 
 
 Pac. Rep. 892 [1897]) 75 
 
 Beckman v. Davidson (Mass.) (39 N. E. 
 
 Rep. 38) 493, 5i8 
 
 Beckwith v. Shordike (4 Burrow 2092) 352 
 
 Bedell v. Rittenhouse Co. (Com. PI.) (5 
 
 Pa. Dist. Rep. 689) 342 
 
 Bedlow v. New York Dry Goods Co. (N. 
 
 Y.) (19 N. E. Rep. 800 [1889]) 516 
 
 Beecher v. Galvin (Mich.) (39 N. W. Rep. 
 
 469 [1889]) 627 
 
 Behrer v. Dienhart Harness Co. (Ind. 
 
 App.) (49 N. E. Rep. 296 [1898]) 328 
 
 Belleone v. Huddlen (Pa.) (16 Atl. Rep. 
 
 764 [1889]) 186 
 
 Bell v. McClintock (Pa.) (9 Watts 119).... 85 
 Bejlinger v. N. Y. Central R. Co. (23 N. 
 
 Y. 42 [1861]) 116 
 
 Bellis v. Bellis (122 Mass. 414 [1877]) 532 
 
 Bell Teleph. Co. v. Belleville Elec. L. Co. 
 
 (12 Ont. Rep. 571) 295 
 
 Belton, City of, v. Baylor Female College 
 
 (Tex.) (33 S. W. Rep. 680) 205 
 
 v. Central Hotel Co. (Tex.) (33 S. W. 
 
 Rep. 297) 205 
 
 Be'ltz v. Mathiowitz (Minn.) (75 N. W. 
 
 Rep. 699) 577, 578 
 
 Benedict v. Gaylord (n Conn. 333 [1836]) 571 
 v. Johnson (Ky.) (42 S. W. Rep. 335 
 
 [1897!) 715 
 
 Benjamin r. Manistee R. Imp. Co. (42 
 
 Mich. 628) 245 
 
 Benner's Lessee v. Platter (6 Ohio 505) 401 
 
 Bennett v. Latham (Tex.) (45 S. W. Rep. 
 
 934 [1898]).. 
 
 601 
 
 v. Murtaugh (20 Minn. 151) 103,179 
 
 v. National Starch Mfg. Co. (Iowa) 
 
 (72 N. W. Rep. 507 [1897]). 
 Benson v. Daly (Neb.) (56 N. W. Rep. 
 
 380 
 
 788) 498, 500 
 
 v. Morrow (6.1 Mo. 347) 431 
 
 Benthal v. Seifert (77 Ind. 302) 136 
 
 Bently v. Root (R. I.) (32 Atl. Rep. 918), 
 
 650, 717 
 Benton v. Johncox (Wash.) (49 Pac. Rep. 
 
 v. Mclntire (N. H.) (15 Atl. Rep. 413 
 
 [1888]) 549 
 
 Berkowitz v. Brown (23 N. Y. Supp. 792), 
 
 516, 528 
 Bernheimer v. Kilpatrick (6 N. Y. St. Rep. 
 
 858) 324 
 
 Berridges v. Ward (Eng.) (10 C. B. N. S. 
 
 400 [1861]) 454 
 
 Berry v. Watson (15 Atl. Rep. 618 [1888]).. 612 
 Berry-Horn Coal Co. v. Scruggs-McClure 
 
 Coal Co. (62 Mo. App. 93) 721 
 
 Best v. Hammond (55 Pa. St.) 558 
 
 Bickett v. Morris (i H. L. Cas. 47) 109 
 
 Biddle Boggs v. Merced Mfg. Co. (14 
 
 Cal. 279) 75 
 
 Bierer v. Hurst (Pa. Sup.) (26 Atl. Rep. 
 
 Bigelow v.' Draper '(N.' D'.) " (69' N.' 'w. ' Rep'. 
 
 570) 742 
 
 v. Hilleman (37 Me. 52) 703 
 
 v. Hoover (Iowa) (52 N. W. Rep. 124), 
 
 378, 432 
 v. Nickerson (C. C. A.) (70 Fed. Rep. 
 
 "3) 231, 421 
 
 Biles v. Tacoma O. & G. H. R. Co. 
 
 (Wash.) (32 Pac. Rep. 211) 730 
 
 Bills v. Belknap (36 Iowa 583) 319. 
 
 Bird v. N. J. & N. Y. R. (Sup.) (38 
 
 N. Y. Supp. 281) 516 
 
 v. Perkins (33 Mich. 28 [1875]) 551 
 
 Birmingham v. Anderson (48 Pa. St. 253). 613: 
 Birmingham Trac. Co. v. Bell Teleph. Co. 
 
 (Ala.) (24 So. Rep. 731 [1898]) 296 
 
 Bishop v. North Adams Fire Dist. (Mass.) 
 
 (45 N. E. Rep. 925) 843,847 
 
 Bissell v. N. Y. Cent. R. Co. (23 N. Y. 61 
 
 [1861]) 453, 703. 
 
 Black v. Ballymera Comm'rs (L. R. 17 Ir. 
 
 V ' Pratt' 'Coal ' &' 'Coke' 'Co'.' ' (Ala.)' ' (5 ^ 
 
 So. Rep. 89) 551 
 
 Blackburn v. Nelson (Cal.) (34 Pac. Rep. 
 
 775) 632- 
 
 - v. Walker (N. D.) (75 N. W. Rep. 787) 578. 
 
 Blackburner v. Somers (L. R. 5 Ir. i) 212 
 
 Blackman v. Riley (N. Y. App.) (34 N. E. 
 
 Rep. 214) i 445,451 
 
 Blair v. Brown (Wash.) (50 Pac. Rep. 483) 579 
 
 v. Deakin (Eng.) (57 L. T. N. S. 522) 214 
 
 Blaird v. Williamson (15 C. "B. N. S. 376).. .267 
 Blaire v. Brown (Wash.) (50 Pac. Rep. 483 
 
 [1897]) 577 
 
 Blaisdell v. Portsmouth, etc., R. Co. (51 N. 
 
 H. 483) 740- 
 
 v. Stephens (14 Nev. 17) 214 
 
 Blake v. Doherty (5 Wheat. 359) 612 
 
 Blakely v. Quinlan (Ky.) (39 S. W. Rep. 
 
 Blakey ' v. ' Morris' '(Va!) ' (17' S.' E! 'Rep! ' 126) 546 
 Blanchard v. West. Union Tel. Co. (60 N. 
 
 Y. 510) 242 
 
 Bland v. Smith (Tex.) (43 S. W. Rep. 49 
 
 [1897]) 410. 
 
 Blane v. Stewart (2 Iowa 383) 45 
 
 Blaney v. Rice (20 Pick 62) 606- 
 
 Blashfield v. Empire State Teleph. Co. 
 
 (Sup.) (18 N. Y. Supp. 250) 817 
 
 Blewett v. Tregonning (3 Al. & El. 554) 162. 
 
 Bliss v. Greeley (45 N. Y. 671) 260,261 
 
 v. Johnson (76 Cal. 597 [1888] 71, 132. 
 
 v. Johnson (94 N. Y. 235 [1883]) 251 
 
 Block v. Haseltine (Ind. App.) (29 N. E. 
 
 Rep. 937) 328, 331 
 
 Blodget v. Royalton (14 Vt. 288) 706- 
 
 Blodgett & D. Lumber Co. v. Peters (87 
 
 Mich. 498) 383- 
 
 Bloodgood v. Ayers (108 N. Y. 400 [1888]), 
 
 252, 254 
 v. Mohawk & H. R. Co. (14 Wend. 51, 
 
 18 Wend. 9) 352, 353, 755, 
 
 Bloom v. West (Colo. App.) (32 Pac. Rep. 
 
 846) 77 
 
 Bloomfield, etc., Co. v. Calkins (62 N. Y. 
 
 386) 841, 843. 
 
 Bloomfield, etc., Nat. Gas Co. v. Richard- 
 son (N. Y.) (63 Barb. 437) 842 
 
 Bloomfield R. Co. v. Grace (Ind.) (13 N. E. 
 
 Rep. 680 [1887]) 735 
 
 Bloomington, City of, v. B. Cem. Assn. 
 
 (111.) (18 N. E. Rep. 298 [1889]) 503,504 
 
 Blount v. Bleker (Tex.) (35 S. W. Rep. 863) 552 
 Blum v. Bowman (C. C. A.) (66 Fed. Rep. 
 
 883) :. 612 
 
 v. Rice (Tex.) (32 S. W. Rep. 1056).... 614 
 
 Blumenthal Co. v. Broock (Mo. Sup.) (29 
 
 S. W. Rep. 836) 633 
 
 Blythe v. Southerland (3 McCord 259) (and 
 
 i Greenl. Ev. Sec. 145) 620 
 
 Bd. of Comm'rs v. Carpenter (Minn.) (58 
 
 N. W. Rep. 295) 407 
 
 Bd. of Comm'rs v. Younger (29 Cal. 173 
 
 [1865]) 588, 590 
 
 Bd. of Ed. v. Trustees, etc. (63 111. 204) 736 
 
 Board v. Lederer (N. J. Ch.) (29 Atl. Rep. 
 
 444) 302, 307 
 
 Boardman v. Scott (Ga.) (30 S. E. Rep. 
 
 982 [1897]) 423- 
 
 Bodine v. Exch. Fire Ins. Co. (51 N. Y. 
 
 "7) 477 
 
XXX 
 
 TABLE OF CASES. 
 
 Bogan v. Daughdrill (51 Ala. 312) 474 
 
 Bohrer v. Dienhart, H. Co. (Ind. App.) 
 
 (45 N. E. Rep. 668) 321,323 
 
 Boland v. St. John's School (Mass.) (39 N. 
 
 E. Rep. 1035) 441,449 
 
 Bonaparte v. Camden & A. R. Co. (Bald. 
 
 C. C. 205) 352,755 
 
 Bonewitz v. Wygant (75 Ind. 41) 387 
 
 Bonner v. Wirth (Texas) (24 S. W. Rep. 
 
 306) 191 
 
 Bonney v. Stoughton (122 111. 536) 688 
 
 Booker v. McBride (Tex. Civ. App.) (40 
 
 S. W. Rep. 1031) 114 
 
 Booth v. Small (25 Iowa 177) 521 
 
 Borchardt v. Wausaw B. Co. (54 Wis. 107) 90 
 Borchsenius v. Chicago, etc., Ry. Co. 
 
 (Wis.) (71 N. W. Rep. 884) 120,191 
 
 Borel v. Rollins (30 Cal. 408) 530 
 
 Borkenhagen v. Vianden (Wis.) (52 N. W. 
 
 Rep. 260) 573 
 
 Borough v. Allegheny Val. R. (Pa.) (25 
 
 683 
 for (N. Y.) (2 Sandf. 552).. 847 
 
 Atl. Rep. 518). 
 
 Borrell v. Mayor (N. Y.) (2 Sandt. 51 
 Boston & A. R. Co. v. Cambridge (Mass.) 
 
 (34 N. E. Rep. 382) 751 
 
 Boston v. Brookline, Town of (Mass.) (30 
 
 N. E. Rep. 611) 843 
 
 v. Lecraw (U. S.) (17 How. 426). .703, 704 
 
 v. Richardson (Mass.) (13 Allen 146, 
 
 i54 155, l6 [1886]) 454,607,843 
 
 Boston Mfg. Co. v. Burgin (114 Mass. 340) 134 
 Boston Roll. Mills v. Cambridge (117 Mass. 
 
 396) 204 
 
 Boston W. P. Co. v. Boston, etc., R. Co. 
 
 (Mass.) (23 Pick. 360) 745,847 
 
 Boston W. P. Co. -v. Gray (6 Met. 169 
 
 [1843]) 473 
 
 Boston Water-power Co. v. Hanlon (132 
 
 Mass. 483) 622, 623 
 
 Bosworth v. Sturtevant (2 Cush. 392) 557 
 
 Botsford v. Wallace (Conn.) (37 Atl. Rep. 
 
 902) 717 
 
 Bouquois v. Monteleone (La.) (17 So. Rep. 
 
 305) 321, 330 
 
 Bouvier v. Stricklett (Neb.) (59 N. W. 
 
 Rep. 550 [1894]) 377,390 
 
 Bowen v. Cooper (Pa.) (7 Watts 311 [1838]) 469 
 v. Gaylord (N. C.) (29 S. E. Rep. 340 
 
 [1898]) 576 
 
 Bowlby v. Shively (Ore.) (30 Pac. Rep. 
 
 154, 160) 376 
 
 Bowlsby v. Speer (31 N. J. L. 351). .. .1720, 191 
 
 Bowman v. Farmer (8 N. H. 402) 408,573 
 
 Boyd v. Woolwine (W. Va.) (21 S. E. Rep. 
 
 1020) 715 
 
 Boyden v. Walkley (Mich.) (71 N. W. 
 
 Rep. 1099) 664 
 
 Boyd's Lessee v. Graves (4 Wheat. 513) 502 
 
 Boyer v. Little Falls (Sup.) (38 N. Y. 
 
 Supp. 1114) 644, 843, 844 
 
 Boynton v. Gilman (53 Vt. 17) no 
 
 v. Middlesex Mut. Fire Ins. Co. (45 
 
 Mass. 215) 687 
 
 Brace v. Penn. W. Co. (7 Pa. Dist. R. 71 
 
 [1897]) 148 
 
 Bracken v. Jones (63 Tex. 184) 528 
 
 r. Union Pac. Ry. Co. (C. C. A.) (75 
 
 Fed. Rep. 347) 530 
 
 Bradbury v. Corry (59 Me. 494) 499 
 
 Bradley v. Christ's Hosp. (4 Mann. & G. 
 
 761) 327 
 
 v. Pharr (La.) (12 So. Rep. 618) 379,442 
 
 v. Rice (13 Me. 198) 421 
 
 Bradshaw v. Duluth Imperial Mill Co. 
 
 (Minn.) (53 N. W. Rep. 1066) 381,388 
 
 Brady v. * Blackington (113 Mass. 245) 374 
 
 v. Hayward (72 N. W. Rep. 233) 1720 
 
 Brain v. Marfell (41 L. T. N. S. 455) 261 
 
 Brainard v. Clapp (Mass.) (10 Cush. 6).. 319 
 Branch v. Simons (Tex.) (48 S. W. Rep. 40) 588 
 Brandt v. Ogden (N. Y.) (i Johns. 156).. 603 
 
 Brass v. Rathbone (153 N. Y. 435) 150 
 
 Bray v. Adams (Mo. Sup.) (21 S. W. Rep. 
 
 853) 547 
 
 Brayden v. New York, etc., R. Co. (Mass.) 
 
 (51 N. E. Rep. 1081) 685 
 
 Brayton v. Fall River (113 Mass. 218) 243 
 
 Breen v. Donnelly (Cal.) (15 Pac. Rep. 845 
 
 [1888]) 577 
 
 Brenham v. Brenham, W. Co. (67 Tex. 542) 147 
 Brent v. Smith (Cranch C. C. 672 [1840]).. 449 
 
 Brewer v. R. R. Corpu (5 Mete. 478) 500 
 
 Brewster v. Rogers Co. (N. Y.) (42 App. 
 
 Div. 343 [1899]) 2ii 
 
 Bridge Co. v. U. S. (105 U. S. 470) 873 
 
 Bridges v. Pierson (45 N. Y. 601, 604) 572 
 
 Brigan'iine i>. Holland Trust Co. (N. J. 
 
 Ch.) (35 Atl. Rep. 344) 706 
 
 Briggs v. Knickerbocker Ice Co. (Sup.) (32 
 
 N. Y. Supp. 95) 164 
 
 Brigham v. Agr. Br. R. Co. (Mass.) (i Al- 
 len 316) 749 
 
 v. Salene (15 Ore. 208) 667 
 
 v. Thompson (Tex.) (34 S. W. Rep. 
 
 358) 555 
 
 Briscoe v. Puckett (Tex.) (12 S. W. Rep. 
 
 978) 493 
 
 Bristol Hy. Co. v. Boyer (67 Ind. 236) 61,85 
 
 Briton v. Ferry (14 Mich. 53) 579 
 
 Broaddus v. Eubanks (Ky.) (38 S. W. Rep. 
 
 134) : 553, 57 8 > 580 
 
 Broadmoor Dairy v. Brookside Co. (Colo.) 
 
 (52 Pac. Rep. 792 [1897]) 62,63 
 
 Broder v. Natoma W. Co. (101 U. S. 274) 
 
 (50 Cal. 621) 73,77 
 
 v. Saillard (2 Ch. Div. 692) 272 
 
 Broiestedt v. Railroad Co. (55 N. Y. 220, 
 
 13 N. Y. Supp. 626) 307 
 
 Bromberg v. Yukers (Ala.) (19 So. Rep. 
 
 49) 633 
 
 Brooklyn v. Jourdon (7 Abb. N. C. 23).... 846 
 Brooklyn Cent. R. Co. v. Brooklyn C. R. 
 
 Co. (32 Barb. 358)... 846 
 
 Brooklyn Park Comni'rs v. Armstrong (45 
 
 N. Y. 234) 708 
 
 Brooks v. Curtis (4 Lans. 287) (50 N. Y. 
 
 639) 181, 340 
 
 Brookville & M., etc., Co. v. Butler (91 Ind. 
 
 134) 164, 166 
 
 Broome v. N. Y., etc., Teleph. Co. (49 N. 
 
 J. Law 624) 812,823 
 
 Brophy v. Richeson (Ind. Sup.) (36 N. E. 
 
 Rep. 424) 407,423 
 
 Brose v. Boise City P. Co. (Id.) (51 Pac. 
 
 Rep. 753 [1897]) 6 33 
 
 Brown v. Bailey (Pa.) (28 Atl. Rep. 245).. 494 
 v. Baraboo (Wis.) (74 N. W. Rep. 
 
 223 [1898]) 449 
 
 v. Best (i Wils. 174) IPS 
 
 v. Bocquin (Ark.) (20 S. W. Rep. 813) 528 
 
 813) 528 
 
 v. Bush (45 Pa. St. 61) 85 
 
 v. Byne (3 El. & Bl. 703) 54^ 
 
 v. Carthage (Mo. Sup.) (30 S. W. 
 
 Rep. 312) 553 
 
 v. Chadbourne (31 Me. 9) 2 42 
 
 v. Cockerel (33 Ala. 38) 518 
 
 v. Dean (123 Mass. 254) 82 
 
 v. Fishel (Sup.) (31 N. Y. Supp. 361) 612 
 
 3 6i) 612 
 
 v. Gray (Me.) (3 Greenl. 126) 518 
 
 v. Heard (85 Me. 294) 407.-548 
 
 v. Hines (Ind. App.) (44 N. E. Rep. 
 
 655) 683 
 
 v. House (N. C.) (24 S. E. Rep. 786).. 583 
 
 v. Illius (27 Conn. 84) 264,268 
 
 v. Kistler (Pa.) (42 Atl. Rep. 885).... 252 
 
 v. Lakeman (Mass.) (17 Pick. 447) 373 
 
 v. Leath (Tex.) (42 S. W. Rep. 655)...- 7'5 
 
 v. Manning (6 Ohio 298) 704 
 
 v. Manter (22 N. H. 472) 35* 
 
 v. Merrill (Mich.) (51 N. W. Rep. 700) 573 
 
 700) 573 
 
 v. Mullin (65 Cal. 89) 75 
 
 v. O'Brien (Mass.) (47 N. E. Rep. 195) 34Q 
 
 v. Pine Creek Ry. Co. (183 Pa. St. 38) 115 
 
 v. Rose (55 Iowa 734) 5 2 i 
 
 v. Schofield (N. Y.) (8 Barb. 243).... 243 
 
TABLE OF CASES. 
 
 XXXI 
 
 Brown v. Vandergrift (80 Pa. St. 147) 281 
 
 v. Willey (42 Penn. St. 205) 542, 612 
 
 v. Windsor (i Crompt. and J. 20).. 325, 326 
 
 Brownson v. Scanlan (59 Texas 222) 528 
 
 Bruening v. Dorr (Colo. Sup.) (47 Pac. 
 
 Rep. 290) no 
 
 Brunswick, etc., R. Co. v. Waycross (Ga.) 
 
 17 S. E. Rep. 647) 709 
 
 Bryan v. Beckley (Ky.) (Litt. Sel. Cas. 91) 561 
 Bryant v. Bigelow C. Co. (131 Mass. 491).. 112 
 v. Maine Cent. R. Co. (Me.) (9 Atl. 
 
 Rep. 354 [1887]) 583 
 
 v. SicCandless (7 Ohio Pt. II. 135) 703 
 
 Brymer v. Butler VV. Co. (Pa.) (33 Atl. Rep. 
 
 707) (36 Atl. Rep. 249) 148,151 
 
 Bryn Mawr Hotel Co. v. Baldwin (12 
 
 Montg. Co. Law Rep. 145) 713 
 
 Buchanan v. Logansport, etc., R. Co. (71 
 
 Ind. 265) 265 
 
 v. Roy's Lessee (2 Ohio St. 263) 573,598 
 
 Buck v. Squires (22 Vt. 484), 
 
 407, 446, 447, 450, 605, 607 
 
 Bucki v. Cone (25 Fla. i) 240 
 
 Bucklin v. Truell (54 N. H. 122 [1873]).... 143 
 Bnckner v. Anderson (N. C.) (16 S. E. 
 
 Rep. 424) 493,584 
 
 Buffalo v. Del., L. & W. R. Co. (Sup.) 
 
 (39 N. Y. Supp. 4) 414, 706, 709 
 
 Buffalo Pipe Line Co. v. New York, etc., 
 
 R. Co. (N. Y.) (10 Abb. N. Cas 107).... 242 
 
 Buffum v. Harris (5 R. I. 243) 261 
 
 Bughman v. Byers (Pa.) (12 Atl. Rep. 357 
 
 [1888]) ::. 612 
 
 Bullard v. Saratoga Mfg. Co. (77 N. Y. 
 
 525) 83 
 
 Bullock v. West Chic. Rap. Trans. R. Co 
 
 (23 Chic. L. N. 149) 789,790 
 
 Bunce v. Wolcott (2 Conn. 27) 687,688 
 
 Burch v. Blair (Ky.) (41 S. W. Rep. 547).. 675 
 
 Burgess v. Pollock (53 la. 273) 42 
 
 Burke v. McCowen (Cal.) (47 Pac. Rep. 
 
 _ 367) 573, 599 
 
 Burlington v. Burlington St. T. Co. (49 
 
 la. 144) 789 
 
 v. Burlington W. Co. (86 la. 266) 148 
 
 Burlington Waterworks Co. v. Burlington 
 
 (43 Kan. 275) 148 
 
 Burlock v. Taylor (16 Pick. 335 [1835]) 408 
 
 Burnett v. Whitesides (15 Cal. 35) 75 
 
 Burnhara's Heirs v. Hitt (45 S. W. Rep. 
 
 368) 573 
 
 Burrell v. Burrell (11 Mass. 294) 311 
 
 Burris v. Fitch (Cal.) (18 Pac. Rep. 864 
 
 [1888]) ......? 502 
 
 Burress v. Hines (Va.) (26 S. E. Rep. 875) 336 
 Burrows v. Gibson (Mich.) (3 N. W. Rep. 
 
 v. Whitman (59 Mich. 279) 231,234 
 
 Burton v. Scherpf (Mass.) (i Allen 135).. 667 
 Burwell v. Hobson (Va.) (12 Gratt. 322)... 132 
 Buse v. Russell (86 Mo. 209, 211). ..380. 431, 432 
 Bush v. Artesian Hot & Cold W. Co. * 
 
 (Idaho) (43 Pac Rep. 69) ... 148 
 
 Bushey v. Santiff (Sup.) (33 N. Y. Supp. 
 
 Bushnel'l v. Scott (21 Wis. 457)...' '.'. 704 
 
 Bushy v. Santiff (Sup.) (33 N. Y. Supp. 
 
 473) 716 
 
 Busk v. Manghum (Tex.) (37 S. W. Rep. 
 
 459) 574, 577 
 
 Buskirk v. King (C. C. A.) (72 Fed. Rep. 
 
 Busse v. Covington (Ky.)"(38'S."w."Rep'. 
 
 ,,865) :. 626 
 
 Butchers' Ass'n v. Commonwealth (Mass.) 
 
 (47 N. E. Rep. ' " " 
 
 Butler v. Bertram 
 
 342) . 
 
 v. Drake (Minn.) (64 N. W. Rep. 559) 502 
 
 v. G R. & I. R. Co. (85 Mich. 246) 559 ' 431 
 
 v. Vicksburg (Miss.) (17 So. Rep. 605) 
 
 Butte Canal 8: Ditch Co. v. Vaughn S (ii' *" 
 Cal. 143) 7S 
 
 599 [1897])- 
 
 m (Mich.) (56 N. W. Rep. 
 
 Butterfield v. Reed (Mass.) (35 N. E. Rip. 
 
 1128) 650 
 
 Butte Table M. Co. v. Morgan (19 Cal. 
 
 609) 75, 77 
 
 Bynem v. Carter (N. C.) (4 Ired. 310) 521 
 
 Byrne v. Farmington (64 Conn. 367) 119 
 
 v. Lowry (19 Ga. 27) 530 
 
 Byrn v. Kleas (Tex.) (39 S. W. Rep. 980) 559 
 
 C. 
 
 Cable v. Jackson (Tex.) (42 S. W. Rep. 
 
 136) . 626 
 
 Cabot v. Kingman (136 Mass. 403) 334 
 
 Cache La Poudre Irr. Co. v. Larimer & 
 
 Weld Reservoir Co. (53 Pac. Rep. 318).... 77 
 Cadeau v. Elliott (Wash.) (34 Pac. Rep. 
 
 916) 572, 573 
 
 Cadwalder v. Nash (Cal.) (14 Pac. Rep. 385 
 
 [1887]) 555,625 
 
 Cagney v. Sweet (67 111. App. 641) [1896]) 340 
 Cairo V. & C. Ry. Co. v. Brevoort (C. C.) 
 
 (62 Fed. Rep. 129) 131, 137 
 
 Cairo, etc., R. Co. v. Stevens (73 Ind. 278) 
 
 J34> *36 
 
 Caldwell v. Craig (Va.) (21 Gratt. 137) 590 
 
 v. Dickin'son (13 Gray (Mass.) 365).... 485 
 
 v. Sanderson (69 Wis. 62) 83 
 
 Caledonian R. Co. v. Sprot (2 Macq. H. 
 
 L. Cas. 479) 325 
 
 California, etc., Tel. Co. v. Alta Tel. Co. 
 
 (22 Cal. 398) 822 
 
 Calmelet v. Sichl (Neb.) (67 N. W. Rep. 
 
 467) 340 
 
 Calvert v. Weddle (Ky.) (44 S. W. Rep. 648 
 
 1898]) 717 
 
 Cameron v. Chicago, M. & St. Paul Ry. Co. 
 
 (Minn.) (61 N. VV. Rep. 814) 516 
 
 Campbell v. Carruth (Fla.) (13 So. Rep. 
 
 432) 544, 55i, 588 
 
 v. Durham (Ala.) (5 So. Rep. 507 [1889]) 493 
 
 v. Indianapolis, etc., R. Co. (no Ind. 
 
 49) 665, 740, 741 
 
 v. Morgan (Sup.) (22 N. Y. Supp. 
 
 1001) 555 
 
 Canadian Pac. R. Co. v. West. Un. Tel. 
 
 Co. (17 Sup. Ct. Can. 151) 819 
 
 Canal Commissioners v. People (5 Wend. 
 
 (N. Y.) 423) 421 
 
 Canal Co. v. Hull (i Man. & Gr. 392) .. 704, 706 
 Canfield v. Clark (Oregon) (21 Pac. Rep. 
 
 443 [1889]) 518 
 
 Canton, etc., R. Co. v. Paine (Miss.) (19 
 
 So. Rep. 199) 192 
 
 Cantwell v. Knoxville, C. G. & L. R. Co. 
 
 (Tenn.) (18 S. VV. Rep. 271) 116 
 
 Capitol City G. Co. v. Charter Oak Ins. Co. 
 
 51 la. 31) 847 
 
 Card v. McCaleb (69 111. 314) 167, 169 
 
 Cardoza v. Calkins (Cal.) (48 Pac. Rep. 
 
 1010) 75 
 
 Carhart v. Auburn Gas. Lt. Co. (N. Y.) 
 
 (22 Barb. 297) 216,221,264 
 
 Carl v. W. Aberdeen Co. (Wash.) (43 Pac. 
 
 Rep. 890) 54, 105 
 
 Carleton v. Reddington (i Fost. 291) 500 
 
 Carli v. Stillwater St. R. Co. (28 Minn. 373) 781 
 Carll v. Northport (9up.) (42 N. Y. Supp. 
 
 576) 190 
 
 Carlisle v. Cooper (19 N. J. Eq. 256 [1868]) 681 
 Carlisle Gas & W. Co. v. Carlisle W. Co. 
 
 (182 Pa. St. 17) 664 
 
 Carondelet C. Nav. Co. v. Parker (29 La. 
 
 Ann. 430) 241 
 
 Carothers v. Phila. Co. (118 Pa. St. 468).. 283 
 
 v. Buckman (Ky.) (41 S. W. Rep. 579) 448 
 
 v. Gold (Va.) (14 S. E. Rep. 329) 5 
 
 v. Gwynn (35 Barb. (N. Y.) 395) 703 
 
 Carr v. Berkley (Mass.) (14 N. E. Rep. 746 
 
 [1888]) 551 
 
 Carriger v. E. Tennessee R. Co. (Tenn.) 
 
 (7 Lea 388) 117 
 
XXX11 
 
 TABLE OF CASES. 
 
 Carroll v. Price (D. C.) (81 Fed. Rep. 137) 
 
 388, 583 
 
 v. Smith (Md.) (4 Har. & J. 128) 312 
 
 v. State (23 Ala. 28) 343 
 
 Carron v. Wood (10 Mont. 500) 102 
 
 Carson v. Centner (Oreg.) (52 Pac. Rep. 
 
 506 [1898]) 74 
 
 Carstarphen v. Holt (Ga.) (23 S. E. Rep. 
 
 904) 498 
 
 Carter ' v. Chavalier (Ala.) (19 So. Rep. 798) 
 
 544, 548 
 
 v. Clark (Me.) (42 Atl. Rep. 398 [1898]) 620 
 
 v. Hornback (Mo.) (40 S. W. Rep. 893) 577 
 
 v. Portland, City of -(4 Oreg. 339) 708 
 
 . v. Thurston (58 N. H. 104) 231 
 
 v. Wallace (2 Tex. 206) 352 
 
 Caruthers v. Pemberton (i Mont, in) 75 
 
 Gary v. Daniels (Mass.) (8 Met. 466) 58 
 
 Case v. Cayuga Co. (Sup.) (34 N. Y. 
 
 Supp. 595) 759 
 
 Casebeer v. Mowry (55 Pa. St. 419) 85 
 
 v. Hoffman (Wis.) (72 N. W. Rep. 390 
 
 [1897]) 1720, 253 
 
 Casey v. Dunn (8 N. Y. Supp. 305 [1890]).. 587 
 Cashman t. Cashman's Heirs (Mo.) (27 
 
 S. W. Rep. 549) 523 
 
 Cass v. Dicks (Wash.) (44 Pac. Rep. 113).. 173 
 
 Casselbery v. Ames (13 Mo. App. 575) 325 
 
 Cassidy v. Charlestown Savings Bank (149 
 
 Mass. 325) 550 
 
 -v. Chicago, etc., R. Co. (70 Wis. 441) 741 
 
 Castello v- Landwehr (28 Wis. 522) 240 
 
 Castleberry v. Atlanta (74 Ga. 164) 319 
 
 Catalino v. Decker (38 Conn. 362) 516 
 
 Cates v. Wadlington (S. C.) (i McCord 
 
 583) 233, 243 
 
 Cathedral Parkway (N. Y.) (20 App. Div. 
 
 404) 45i, 454 
 
 Cavazos v. Trevino (16 Wallace 773 [1867]) 
 
 550, 588, 611 
 
 Cedar Falls v. Hansen (73 N. W. Rep. 585) 187 
 Cen. Pa. Teleph. Co. v. Wilkesbarre, etc., 
 
 R. Co. (n Pa. Co. Ct. Rep. 417) ......... 829 
 
 He 
 
 Central Un. Teleg."Co. v. Sprague E. Ry. 
 
 . El. 
 
 Center St. Church v. Macliias' Hotel Co. 
 (51 Me. 4i3_[i864]). ._ _._. .._... 605 
 
 & M. Co. (Ohio Com. PI.) (2 Amer. 
 
 Cas. 307 [1889]) ........................ 295,296 
 
 Chabert v. Russell (Mich.) (67 N. W. Rep. 
 
 Chace v. ' Warsaw 'w! ' Co.' '(Sup.)' '('29' N'.' Y'. ^ 
 
 Supp. 729) .................................. 108 
 
 Chadwell v. Chadwell (Tenn.) (23 S. W. 
 
 Rep-. 973) ................................ 467, 498 
 
 Chadwick v. Davis (143 Mass. 7 [1886]) ---- 447 
 
 Chaflin v. Gantz (Sup.) (39 N. Y. Supp. 
 
 712) ........................................ 600 
 
 Chalmers v. Brown (Tex.) (2 S. W. Rep. 
 
 518) ........................................ 555 
 
 Chamberlain v. Abadie (La.) (19 So. Rep. 
 
 \>. B!'&'6.''R'.'Ca'(Md.')''(8'A't'l.''Rep. ^ 3 
 
 267 [1887]) ...... -. .......................... 260 
 
 Chamberlain v. Hemmingway (Conn.) (22 
 
 L. R. A. 45) ................................ 378 
 
 Chamberlin v. Spargus (22 Hun 437) ........ 45 
 
 Chambers v. Ringstaff (60 Ala. 140) ....... 552 
 
 Champlain, etc., Ry. Co. v. Valentine (N. 
 
 Y.) (19 Barb. 491) ......................... 421 
 
 Champlin v. Pendleton (13 Conn. 23).. 448, 449 
 Chandler v. Kent (8 Minn. 525) ............ 45 
 
 - v. Lazarus (Ark.) (18 S. W. Rep. 181), 
 
 182, 183 
 Chapman v. Crooks (41 Mich. 595) ........ 499 
 
 Chapman v. Mad River, etc., Co., (6 Ohio 
 
 St. 119) ..................................... 748 
 
 Chappel v. Smith (80 Mich. 100) ............ 185 
 
 Chappin v. Hunt (40 Mich. 595 [1879]) ...... 530 
 
 Charles v. Rankin (22 Mo. 566, 573)-3 2 7, 325, 33* 
 Charnock v. Hignerra (Cal.) (44 Pac. Rep. 
 
 171) ........................................ 75 
 
 Chase v. Martin (Me.) (15 Atl. Rep. 68 
 
 [1888]) ..................................... 612 
 
 Chase v. Oshkosh (81 Wis. 315) ............ 319 
 
 v. Silverstone (62 Me. 175) .............. 259 
 
 Chasemore v. Richards (7 H. L. Cas. 349) 275 
 
 Chatfield v. Wilson (27 Vt. 670 [1854]) 104 
 
 Chauvet v. Hill (g3 Cal. 407) 1720 
 
 Cheffee v. Telepnone, etc., Construction 
 
 Co. (77 Mich. 625) 826 
 
 Chelsea Dyehouse v. Commonwealth (164 
 
 Mass. 350) 334 
 
 Cheney v. New York, etc., R. Co (App. 
 
 Div.) (40 N. Y. Supp. 1103) 448 
 
 Chesley v. Holmes (40 Me. 536) 583 
 
 Chesp., etc., Teleph. Co. v. MacKenzie (74 
 
 Md. 36) 812, 816 
 
 Chessley v. King (74 Me. 164) 261 
 
 Chester Emery Co. v. Lucas (112 Mass. 424 
 
 [1873]) -. 550, 55i, 554 
 
 Chiatovich v. Davis (17 Nev. 133) 75. 
 
 Chicago v. Chicago, R. I. & P. Ry. Co. 
 
 (111. Sup.) (38 N. E. Rep. 768) 685 
 
 v. Drexel (111.) (30 N. E. Rep. 774)..-. 705 
 
 Chicago v. Howes (169 111. 260) 677 
 
 v. Illinois Steel Co. (66 111 App. 561).. 756 
 
 v. Law (111. Sup.) (33 N. E. Rep. 855), 
 
 v. McGinn (51 111. 266) .7 240 
 
 Chicago v. Powers' Admr. (42 111. 169) 720 
 
 Chicago, B. & Q. R. Co. v. Emnert (73 N. 
 
 W. Rep. 540) 173 
 
 Chicago, etc., R. Co. v. Groh (Wis.) (55 
 
 N. W. Rep. 714) 522 
 
 Chicago & N. W. R. Co. v. Hoag (90 111. 
 
 339 [1878]) 678 
 
 Chicago, R. I. & P. R. v. Moffit (75 111. 
 
 524 [1874]) 88 
 
 Chicago, etc., Bridge Co. v. Pac. Mut. Tel. 
 
 Co. (36 Kan. 113) 824 
 
 Chicago, etc., Railroad Co. v. Morrow (42 
 
 Kan. 339) 1720 
 
 Chicago Railroad Co. z\ Paddock (75 111. 
 
 616) 731 
 
 Chicago City R. Co. v. People (73 111. 571) 789 
 Chicago & P. R. . Co. v. Jtein (75 111. 41 
 
 [1874]) 721 
 
 Chicago & E. I. R. Co. v. Wright (111. 
 
 Sup.) (38 N. E. Rep. 1062) 755 
 
 Childs v. Cent. R. Co. (33 N. J. Law 323)- 739- 
 
 Child v. Starr (N. Y.) (4 Hill. 369) 235 
 
 China it. Southwick (12 Me. 238) 90 
 
 Chipman v. Palmer (77 N. Y. 51 [1879]), 
 
 202, 209, 214 
 
 Chisholm v. Caines (C. C.) (67 Fed. Rep. 
 
 285) 683 
 
 Chope v. Detroit, etc., Pk. Rd. Co. (37 
 
 Mich. i9S). v -: . 75; 
 
 Church v. He 
 
 v. Stiles (Vt.) (10 
 
 [1887]) 448,449- 573,582- 
 
 Churchill v. Bauman (Cal.) (30 Pac. Rep. 
 
 770) 662 
 
 v. Beethe (Neb.) (66 N. W. Rep. 992), 
 
 178, 186- 
 v. Burlington Water Co. (Iowa) (62 N. 
 
 W. Rep. 646) 307 
 
 Cihak v. Kleke (17 111. App. 124) 705 
 
 Cincinnati v. White (U. S.) (6 Pet. 431), 
 
 [oboken (33 N. J, L. 13) . 
 
 Atl. Rep. 674 
 
 Cincinnati, etc., R. Co. v. 
 
 Teleph. Assn. (48 Ohio St. 
 
 Citizens' Gas, etc., Min.-Co. v. 
 
 704, 706 
 City, etc., 
 
 >o) 296, 831 
 
 Llwood (114 
 
 Ind. 338). 283 
 
 Citizens' Nat. Gas. Co. v. Shenango Nat. 
 
 Gas Co. (Pa.) (20 Atl. Rep. 947 [1890]).. 284 
 
 City v. Hinkson (87 111. 587) 7o8 
 
 City, etc., Tel. Co. v. Cincinnati, etc., R. 
 
 Co. (Ohio) (23 Wkly. L. Bull. 165) 831 
 
 City Power Co. v. Fergus F. W. Co. 
 
 (Minn.) (56 N. W. Rep. 685) 75 
 
 City W. Co. v. State (Tex.) (33 S. W. Rep. 
 
 259) 14? 
 
 Clafflin v. Boston, etc., R. Co. (Mass.) (32 
 
 N. E. Rep. 659) 685 
 
 v. Carpenter (Mass.) (4 Met. 580) 667 
 
 Clancy v. Hondlett (39 Me. 451) 521 
 
 Clapp v. Birmingham (9 Cow. 563) 687 
 
 Clark v. Burt (Mass.) (4 Cush. 396) 48? 
 
 v. Campan et al. (19 Mich. 329) 387 
 
TABLE OF CASES. 
 
 XXX111 
 
 Clark v. Cambridge, etc., Co. (Neb.) (64 N. 
 
 W. Rep. 239) 234 
 
 v. Comford (La.) (12 So. Rep. 763) 516 
 
 v. Conroe (38 Vt. 469) 261 
 
 v. Dasso (34 Mich. 86J 319 
 
 v. Davis (Super. Ct.) (19 N. Y. Supp. 
 
 IQI, 28 Abb. N. C. 135) 501 
 
 Clark v. Farnsworth (Kan.) (53 Pac. Rep. 
 
 93 [1898]) 590 
 
 v. Graham (6 Wheat. 577) 45 
 
 v. Lancaster (36 Md. 196 [1872]) 560 
 
 v. Lawrence (N. C.) (6 Jones Eq. 83).. 267 
 
 v. Munyan (Mass.) (22 Pick. 410 
 
 [1839]) ;> v 557 ' 576> 2 5 
 
 v. Owens (18 N. Y. 434) 622 
 
 v. Peckham (10 R. I. 35) ' 2 42 
 
 v. Powers (45 111. 283 [1867]) 553 
 
 v. Troy (20 Cal. 219) 45 
 
 v, Willett (35 Cal. 534) --75. 77 
 
 Clarke v. French (122 Mass. 419) 82 
 
 Clarkston v. Va. C. & I. Co. (Va.) (24 S. 
 
 E. Rep. 937) 553 
 
 Classes v. Chesapeake Co. (Md.) (31 Atl. 
 
 Rep. 808) 383 
 
 Clay v. Postal Tel. Co. (70 Miss. 406) 319 
 
 Clay Co. L. & C. Co. v. Montague Co 
 
 (Tex.) (28 S. W. Rep. 704) 625 
 
 Clemens v. Speed (Ky.) (19 S. W. Rep. 
 
 660) 327, 328 
 
 Clement v. Comstock (2 Mich. 359 [1852]). 482 
 Clement Mfg. Co. v. Wood (Mass.) (38 N. 
 
 E. Rep. 444) 85 
 
 Clements v. State (105 N. Y. 621) 274 
 
 Cleveland v. Choate (Cal.) (18 Pac. Rep. 
 
 875 [1888]) 555 
 
 v. Flagg (4 Cush. 76, 81) 551 
 
 v. King (132 U. S. 295) 721 
 
 Cleveland, C. & S. Ry. Co. v. Knicker- 
 bocker Trust Co. (U. S. C. C.) (86 Fed. 
 
 Rep. 73 [1898]) 5,731 
 
 Cleveland, etc., Ry. Co. v. Nuttall (59 111. 
 
 App. 639) 114, :38 
 
 v. Spear (56 Pa. St. 326) 745 
 
 Clifford v. Atl. Cot. M. (146 Mass. 47) 182 
 
 Cline v. Baker (N. C.) (24 S. E. Rep. 516), 
 
 fey. X38 
 
 Clinton G. Lt. Co. v. Fuller (Mass.) (48 
 
 N. E. Rep. 1024) 55 
 
 Clipper v. Sage (Tex.) (37 S. W. Rep. 363) 555 
 Clowes v. Staffordshire Potteries (Eng.) 
 
 (L. R. 8 Ch. 126) 207 
 
 v. Sterling I. & Z. Co. (N. J. Ch.) ' 
 
 (33 Atl. Rep. 286) 218 
 
 Clute v. Briggs (22 Wis. 607 [1868]) 410 
 
 v. Carr (20 Ves. 531) 662 
 
 Coakley v. Boston, etc., R. Co. (Mass.) 
 
 (33 N. E. Rep. 930) 683 
 
 Coatsworth v. Lehigh Val. Ry. Co. (48 
 
 N. Y. Supp. 511) 721 
 
 Cobb v. Davenport (32 N. J. Law 369) 421 
 
 v. Lavalle (89 111. 331) 378 
 
 v. Smith (38 Wis. 21) 90 
 
 v. Taylor (Ind.) (33 N. E. Rep. 615).. 554<* 
 
 Coburn v. San Mateo Co. (C. C. N. D. 
 
 Cal.) (75 Fed. Rep. 520), 
 
 352, 407, 410, 520, 683, 703 
 Cochran v. Smith (Sup.) (26 N. Y. Supp. 
 
 103) 589, 61 1 
 
 Coe v. N. J. Mid. R. Co. (31 N. J. Eq. 105) 751 
 Coffin v. Left Hand Ditch Co. (6 Colo. 
 
 443) 75 
 
 Coffman v. Robbins (8 Oreg. 278) 71 
 
 Cogswell v. Forrest (Wash.) (43 Pac. Rep. 
 
 1098) 414 
 
 Cohen v. Bellenot (Va.) (32 S. E. Rep. 455 
 
 [1899]) 215 
 
 v. Simmons (Sup.) (21 N. Y. Supp. 
 
 385) 324, 327 
 
 Coker v. Simpson (7 Cal. 340) 75 
 
 Colchester v. Roberts (4 M. & W. 769).... 681 
 Cold Sp. I. W. v. Talland (4 Cush. 492)... 401 
 
 Cole v. Bradbury (86 Me. 380) 143 
 
 v. Logan (Oreg.) (33 Pac. Rep. 568).. 75 
 
 Coleman v. Drane (Mo.) (22 S. W. Rep. 
 
 801) 497 
 
 Coleman v. Foster (i N. H. 37) 669 
 
 v. Manhattan Beach Ins. Co. (94 N. 
 
 Y. 229 [1883]) 546,554,591 
 
 v. Pickett (Sup.) (31 N. Y. Supp. 480) 516 
 
 v. State (N. Y. App.) (31 N. E. Rep. 
 
 902) 106, 107 
 
 Collins v. Chartiers Val. Gas Co. (131 
 
 Penn. St. 143) 269 
 
 v. Howard (N. H.) (18 Atl. Rep. 794).. 243 
 
 v. Macon (69 Ga. 542) 134 
 
 v. Sutton (Va.) (26 S. W. Rep. 415).. 620 
 
 v. St. Peters (Vt.) (27 Atl. Rep. 425).. 717 
 
 v, Waltham (151 Mass. 198) 186 
 
 Coloney v. Farrow (Sup.) (36 N. Y. Supp. 
 
 164) * 85 
 
 Colrick v. Swinbure (N. Y.) (12 N. E. Rep. 
 
 427 [1887]) 109, no, in 
 
 v. Me 
 
 Colter 
 
 [ann (18 Minn. 96 [1871]), 
 57i, 587, 5 
 Loiter (i Mont. 
 
 549, 57i, 587, 590, 598, 599 
 ;. Ho" 
 
 Columbia Mining 
 
 296) 75 
 
 Columbia Oil Co. v. Blake (Ind. App.) (42 
 
 N. E. Rep. 234) 551 
 
 Columbus v. Dahin (36 Ind. 330) 703 
 
 v. Hydraulic Woolen Mills Co. (33 Ind* 
 
 435) 204 
 
 Columbus G. L. & C. Co. v. Freelaod (12 
 
 Ohio St. 392) 264,305 
 
 Columbus & W. Ry. Co. v. Witherow 
 
 (Ala.) (3 So. Rep. 23 [1888]) 442,447 
 
 Comanche v. Zettlemoyer (Tex.) (40 S. W. 
 
 Rep. 641) 189, 272 
 
 Combs v. Agricultural Ditch Co. (17 Colo. 
 
 146) 81 
 
 Commis'sioners v. Kemphall (N. Y.) (26 
 
 Wend. 404) 421 
 
 v. Morgan (Kan.) (52 Pac. Rep. 896 
 
 [1898]) 606 
 
 - v. Towanda W. W. Co. (Pa.) (15 Atl. 
 
 Rep. 440 [1888]) 148 
 
 Comm'rs of Burke Co. v. Catawba L. Co. 
 
 (N. C.) (20 S. E. Rep. 707) 243 
 
 Comm'rs of Warren Co. v. Comm'rs of 
 
 Butler Co. (4 Ohio, N. P. 349 [1897]).... 603 
 Commonwealth v. Alburger (Pa.) (i 
 
 Whart.) 469 
 
 v. Alger (Mass.) (7 Cush. 97) 431 
 
 -v. Boston (97 Mass. 555) 812- 
 
 v. Cent Pass. R. Co. (52 Pa. St. 519).. 793 
 
 v. Charlestown (Mass.) (i Pick. 180).. 374 
 
 v. Crosscut R. Co. (53 Pa. St. 62).... 745. 
 
 v. Erie, etc., R. Co. (27 Pa. St. 339), 
 
 v. Essex Co. (Mass.) (13 Gray 239)... 765 
 
 -v. Fisher (Pa.) (i P. & W. 462).: .... 252. 
 v. Fitchburg R. Co. (Mass.) (8 Cush. 
 
 240) 745, 
 
 v. Reed (34 Pa. St. 275) 303. 
 
 v. Russell (Pa.) (33 Atl. Rep. 709). .207, 221 
 
 v. Warwick (Pa.) (40 Atl. Rep. 93 
 
 [1898] 813, 816, 825, 830 
 
 Comstock v. Sharp (Mich.) (64 N. W. Rep. 
 
 22) 650 
 
 v. Smith (26 Mich. 306) 47 
 
 Conboy v. Dickinson (Cal.) (28 Pac. Rep. 
 
 809) 330- 
 
 Concord v. Burleigh (N. H.) (36 Atl. Rep. 
 
 606) 306- 
 
 Concord Mfg. Co. v. Robertson (N. H.) 
 
 (25 Atl. Rep. 718) 421 
 
 Cone v. Hartford (28 Conn. 363) 205. 
 
 Conger v. Burlington, etc., R. Co. (41 la. 
 
 419) 665; 
 
 v. Weaver (6 Cal. 548) 75,77 
 
 Conhocton S. R. Co. v. Buffalo, etc., Co. 
 
 (N. Y.) (3 Hun 523) 115 
 
 Connecticut Mut. Life Ins. Co. v. Stinson 
 
 (62 111. App. 319) 455 
 
 Connor v. Johnson (S. C.) (30 S. E. Rep. 
 
 833 [1898]) 583 
 
 Conner v. Sullivan (40 Conn. 26 [1873]) 678 
 
 Conrad v. Arrowhead Hotel Co. (Cal.) (37 
 
 Pac. Rep. 386) 205 
 
 v. Ithaoa (16 N. Y. 161) 215 
 
 Cook v, Babcock (Mass.) (7 Cush. 526).. 550, 55; 
 
XXXIV 
 
 TABLE OF CASES. 
 
 Cook v. Burlington (30 Iowa 94) 379 
 
 v. McClure (58 N. Y. 437) 423,578 
 
 v. Stearns (n Mass. 533) 669,740,741 
 
 Cook, A. P., Co. v. Beard (Mich.) (65 N. 
 
 W. Rep. 518) 89,681 
 
 " "de ". . '" 
 
 v. McKinney (Ga.J (14 S. E. Rep. ^190) 
 
 Cooley v. Golden (117 Mo. 33) 
 
 v. McKinney (Ga.) (14 S. 
 
 Cooper v. Deal (Mo. Sup.) (22 S. W. Rep. 
 
 '584)""""""" 
 County ' '(Cal.')' ' '(38 ' Pac'. 
 
 Detroit (42 Mich. 
 v. Hall (5 Ohio 321), 
 
 576 
 707 
 
 Monterey 
 
 Rep. 106) 683 
 
 Copeland v. Wading Riv. Res. Co. (105 
 
 Mass. 397 [1870]) 469 
 
 Copper v. Dolvin (68 la. 757) 180,181 
 
 Cornelius v. Giberson (25 N. J. Law i) 533 
 
 Cornell v. Jackson (9 Met. 150) 551 
 
 Correll v. Cedar Rapids (Iowa) (81 N. W. 
 
 Rep. 724) -. 303 
 
 Cosgrove v. Kingston C. C. (Pa.) (40 Atl. 
 
 Rep. 151 [1898]) 448 
 
 Costello v. Harris (Pa. Sup.) (29 Atl. Rep. 
 
 874) 644 
 
 Cotes v. Davenport (9 La. 227) 190 
 
 Cottingham v. Seward (Tex.) (25 S. W. 
 
 Rep. 797) 626 
 
 Cottle v. Young (59 
 
 Cottrell v. Marshall Infirmary (Sup.) (24 
 
 Me. 105) ............... 448 
 
 87 
 
 N. Y. Supp. 381) 
 Coulthard v. Davis (Iowa) (70 N. W. Rep. 
 
 716) 390 
 
 Countryman v. Lighthill (N. Y.) (24 Hun 
 
 405) 317 
 
 County v. Newport (Ky.) (12 B. Mon. 538) 708 
 Covert v. Valentine (Sup.) (21 N. Y. Supp. 
 
 219) 102 
 
 Covington v. Becker (5 Nev. 281) 53 
 
 v. Geylor (Ky.) (19 S. W. Rep. 741), 
 
 328, 330, 332 
 Covington, etc., R. Co. v. Kenton Co. Ct. 
 
 (Ky.) (12 B. Mon. 144) 765 
 
 Covington St. R. Co. v. Covington (Ky.) 
 
 (9 Bush 127) 788 
 
 Cowdrey v. Woburn (136 Mass. 409) 272 
 
 Cowles v. Kidder (24 N. H. 364) 88 
 
 Cowling v. Higginson (4 M. & W. 245) 681 
 
 Cox if. Arnold (Mo. Sup.) (31 S. W. Rep. 
 
 592) 380 
 
 v. Daugherty (Ark.) (36 S. W. Rep. 
 
 184) 492, 528 
 
 v. Finks (Tex.) (41 S. W. Rep. 95) .577, 630 
 
 v. Freidley (33 Pa. St. 124 [1859]) 449 
 
 v. Hart (12 Sup. Ct. Rep. 962) 555 
 
 v. Matthews (i Vent. 237) 325 
 
 Coyne v. Mississippi & R. R. Boom Co. 
 
 (75 N. W. Rep. 748) 243 
 
 Craig T^Hawkins^ (Ky.) (i Bibb 53) 603 
 
 - v. Kline (65 Pa. St. 
 
 v. Rochester City R. Co. 
 
 (39 N. Y. 
 
 '(2 4 "S."W. 
 
 Rep*. 
 
 378 
 
 404) 
 
 Crandall v. Allen (Mo. Sup.) 
 
 Rep. 172) 
 
 v. Smith (Mo. Sup.) (36 S. W. 
 
 612) ....".. 378 
 
 v. Woods (8 Cal. 136) 74 
 
 Crane v. Winsor (2 Utah 248) 75,209 
 
 Crawford v. Orr (84 N. C. 246) 466, 485 
 
 v. Rambo (44 Ohio St. 282 [1886]), 
 
 132, 134, 173, 382 
 
 Creasey v. Alverson (43 Mo. 13, 21) 558 
 
 Creech v. Davidson (Tex.) (23 S. W. Rep. 
 
 995) 597 
 
 Creighton v. Kaweah Canal Co. (67 Cal. 
 
 221) . I0 i, 108 
 
 Crimson -v. Deck (84 Iowa 344) 319, 717 
 
 Crispin v. Hannovan (50 Mo. =536) 532 
 
 Crocker v. Collins (S. C.) (15 S. E. Rep. 
 
 95i) 650 
 
 v. Cotting (Mass.) (44 N. E. Rep. 214) 450 
 
 v. Manhattan L. Ins. Co. (N. Y. Sup. 
 
 Ct. [1900]) 308 
 
 Crockett v. Boston (Mass.) (5 Cush. 182). 706 
 Croker v. Bragg (N. Y.) (10 Wend. 260).. 432 
 Croime v. Board (71 Ind. 208) 167,169 
 
 
 
 Cronin v. Gore (38 Mich. 381) 611 
 
 Cronkhite v. Cronkhite (94 N. Y. 323 
 
 [1884]) 662 
 
 Crooked Lake Nav. Co. v. Kenha Nav. 
 
 Co. (4 N. Y. St. Rep. 380) 421 
 
 Crooker v. Benton (Cal.) (28 Pac. Rep. 
 
 Crooks' 'v'. ' Whit'ford ' (47* Mich.' '383) '.'.'.'.'.'.'.'. '552 
 Croosdale v. Lanigan (Sup.) (13 N. Y. 
 
 Supp. 31 [1891]) 329 
 
 Croosley v. Lightowler (Eng.) (L. R. 2 Ch. 
 
 478) 213, 214, 216 
 
 Crosby v. Bessey (49 Me. 539) 222 
 
 Cross v. Kitts (Cal.) (22 The Reptr. 361 
 
 [1886]) 1720, 252, 254, 262 
 
 v. Tyrone M. & M. Co. (121 Pa. St. 
 
 394 [1888]) 573,580,611,626 
 
 Crowell v. Manges (2 Gilm. 419) 500 
 
 Cruikshanks v. Wilmer (Ky.) (18 S. W. 
 
 Rep. 1018) 407 
 
 C. S. & C. R. R. Co. v. Tuttle (7 Ohio 
 
 Dec. 63) 574,598 
 
 Culbertson v. Duncan (Pa.) (13 Atl. Rep. 
 
 966 [1888]) 491,499,502 
 
 Cumberland Teleph. Co. v. United Elec. 
 
 R. Co. (42 Fed. Rep. 273) 296,827,830,832 
 
 Cummings v. Barrett (Mass.) (10 Cush. 
 
 186) .. 167 
 
 v. Blanchard (N. H.) (36 Atl. Rep. 
 
 556) 75, 84 
 
 v. Toledo (12 Ohio C. C. 650) 194,272 
 
 Cunningham v. Hendricks (Wis.) (62 N. 
 
 W. Rep. 410) 713 
 
 v. San Saba Co. (Tex.) (20 S. W. Rep. 
 
 940 683 
 
 Curdy v. Stafford (Tex.) (30 S. W. Rep. 
 
 55i) 555 
 
 v. Stafford (Tex.) (27 S. W. Rep. 823) 526 
 
 Curran v. McGrath (67 111. App. 566) 764 
 
 Currier v. Marietta, etc., R. Co. (11 Ohio 
 
 St. 228) 747 
 
 v. Nelson (Cal.) (31 Pac. Rep. 531).... 603 
 
 Curtis v. Aronson (7 Atl. Rep. 886). 542, 573, 620 
 
 v. Hoyt (19 Conn. 1^4) 706 
 
 v. Jackson (13 Mass. 507) 102 
 
 Cushman v. Coleman (Ga.) (19 S. E. Rep. 
 
 46) 516 
 
 v. Highland Ditch Co. (Colo. App.) 
 
 (33 Pac. Rep. 344) 216 
 
 v. Smith (34 Me. 256) 353.755 
 
 Cutts v. Hussy (15 Me. 241) 273 
 
 D. 
 
 Dale v. Jackson (8 N. Y. Supp. 715) 502 
 
 Dalton v. Angus (6 App. Cas. Eng. 740). 326 
 
 v. Bowker (8 Nev. 190) 75, 77 
 
 - v. Cleveland, C., C. & St. L. Ry. Co. 
 
 (Ind. Sup.) (43 N. E. Rep. 130) 306 
 
 v. Rentaria (Ariz.) (15 Pac. Rep. 37 
 
 [1888]) 75 
 
 Dalzell v. Indianapolis, etc., R. Co. (32 
 
 Ind. 45) 794 
 
 Dana v. Jackson St. Wh. Co. (31 Cal. 118 
 
 [1886]) 373, 381 
 
 Daniels v. Chicago, etc., R. Co. (35 la. 129) 738 
 
 v. Fitzhugh (Tex.) (35 S. W. Rep. 38) 580 
 Darge v. Haricon I. Mfg. Co. (22 Wis. 
 
 691) 485 
 
 Dark v. Johnson (55 Pa. St. 564) 281 
 
 Darling v. Stanwood (Mass.) (14 Allen 504) 477 
 v. Thompson (Mich.) (65 N. W. Rep. 
 
 754) 87, 88 
 
 Dauer v. Hildebrandt (Mich.) (68 N. W. 
 
 Rep. 145) 497 
 
 Daugherty v. Gates (Tex.) (35 S. W. Rep. 
 
 937) 546 
 
 v. Warren (85 N. C. 136) 86 
 
 Davenport v. Tarpin (43 Cal. 598) 499 
 
 Davidson i>. Pickard (Tex. Civ. App.) (37 
 
 S. W. Rep. 374) 493 
 
 v. Sanders (i Pa. Super. Ct. Rep. 432) 187 
 
 v. Shuler's Heirs (N. C.) (26 S. E. 
 
 Rep. 340) 553, 612 
 
TABLE OF CASES. 
 
 XXXV 
 
 Davis v. Baylor (Tex.) (19 S. W. Rep. 523) 573 
 
 v. Caldwell (AlaJ (18 So. Rep. 103) 502 
 
 v. Comm'rs (111. Sup. (33 N. E. Rep. 
 
 58) 178 
 
 v. Gale (32 Cal. 26) Z5, 76 
 
 V. Harvard (15 S. & R. 165 [i~ 
 56 Bjii 
 
 v. Lambertson (N. Y.) (56 
 
 [1827]).... 
 ;irb. 480) . . 
 
 Londgreen (8 Neb. 43) 179 
 
 Rainsford (17 Mass. R. 207 [1821]).. 613 
 
 v. San Lorenzo R. Co. (47 Cal. 
 
 v. 
 650) 
 
 Spalding (Mass.) (32 
 
 E. Rep*. 
 
 353 
 
 Day 
 
 tep. 
 
 .260, 261 
 
 Stephens (7 Carr & Payne 570) 704 
 
 _Adarns (42 Vt. 520)... ._. ._. 45 
 
 v. Pittsburg, Y. & 
 
 Co. (22 Reptr. 
 
 533 [1886]) 401, 414 
 
 v. Railroad Co. (Ohio) (22 Reptr. 533 
 
 444 
 
 (135 Mass. 55 [1883]).. 447, 448 
 5 (N. C.) (26 S. E. Rep. 
 
 [1886]) 
 
 Dean v. Lowell 
 Deaver v. Jones 
 
 156) ' 577, 579, 58o 
 
 De Baker v. So. Cal. Ry. Co. (Cal.) (39 
 
 Pac. Rep. 610) 52, 137 
 
 De Baum v. Bean (N. Y.) (29 Hun 236).... 83 
 De Camp v. Thompson (Sup.) (44 N. Y. 
 
 Supp. 1014) 243 
 
 Decatur v. Niedermeyer (168 111. 68) 573,599 
 
 Deerfield v. Arms (Mass.) (17 Pick. 41 
 
 [1835]) 387, 431 
 
 v. Conn. R. Co. (Mass.) (11 N. E. 
 
 Rep. 105 [1887]) 716 
 
 Deer Lake Co. v. Mich. L. & I. Co. 
 
 (Mich.) (50 N. W. Rep. 807) 521 
 
 DeGive v. Seltzer (64 Ga. 423) 267 
 
 De Grillian v. Frawley (La.) (19 So. Rep. 
 
 I5l) K 701 
 
 De Lancy v. Piepgras (N. Y. App.) (33 N. 
 
 E. Rep. 822) 376,413 
 
 v. Boston (Del.) (3 Harr. 489) 107 
 
 Delaware v. Smith (i Del. Ch. i) 591 
 
 Delaware L. & W. R. Co. v. Breckenridge 
 
 (N. J.) (41 Atl. Rep. 966) 535 
 
 v. Hannon (37 N. J. Law 276) 383 
 
 Delhi, Trustees of, v. Youmans (50 Barb. 
 
 316 [1867]) 252, 262 
 
 Delong v. Baldwin (Mich.) (69 N. W. Rep. 
 
 831) 498, 501 
 
 v. Mulcher (47 Iowa 445 1877]) 525 
 
 Demuth v. Amweg (90 Pa. St. 181 [1879]).. 684 
 Denison Paper Co. v. Robinson Mfg. Co. 
 
 (74 Me. 116) 81 
 
 Dennett v. Dennett (44 N. H. 538) 42 
 
 Denny v. Cotton (Tex.) (22 S. W. Rep. 
 
 122) .377, 406, 409 
 
 Denver, etc., R. Co. v. Canon City, etc., 
 
 R. Co. (99 U. 7 
 
 v. Denver City 
 
 v. Lockwood (Kan.) (38 .Fac. Kep 
 
 794) 544 
 
 De Roachemont v. Boston, etc., R. Co. 
 
 (N. H.) (15 Atl. Rep. 131 [1888]) 712 
 
 Detroit v. Railroad Co. (23 Mich. 173). .704, 706 
 Detroit & B. C. R. Co. v. Bush (43 Mich. 
 
 571) 8 
 
 Devoe v. Smeltzer (la.) (53 N. W. Rep. 287) 717 
 Devonshire v. Elgin (Eng.) (14 Beav. 530) 61 
 
 Dibble v. Rogers (13 Wend. 536) 502 
 
 Dick v. Caldwell (14 Nev. 167) 
 
 Dicken v. Liverpool Salt & Coal Co. (W. 
 
 . uo. v. canon city, etc., 
 
 JS. 463) 751 
 
 "ity R. Co. (2 Col. 673) 797 
 
 Dd (Kan.) (38 Pac. Rep. 
 
 75 
 
 Va.) (23 S. E. Rep. 582) 701 
 
 Dickinson v. Amherst Water Co. (139 Mass. 
 
 212) 605, 606 
 
 v. Gd. June. C. Co. (L. R. 7 Exch. 
 
 282) 259, 262, 267, 275 
 
 Dickson v. Baker (65 111. 518) 188 
 
 Diedrich v. N. W. R. Co. (42 Wis. 248), 
 
 I34 3&2. 421 
 
 Diehl v. Zanger (39 Mich. 601 [1880]), 
 
 Dillett v. Kemble (N. J.) (10 C. 3 E.' GreJne S 
 
 66) 499 
 
 Dilley v. Sherman (2 Nev. 67) 77 
 
 Dillingham v. Smith (30 Me. 370) 421 
 
 Dillon v. Barnard (21 Wai. 430) 8 
 
 Dingman v. Kelley (7 Ind. 717) 19 
 
 Dobbins v. Missouri, etc., R. Co. (Tex.) 
 
 (41 S. W. Rep. 62) 191 
 
 v. Missouri, etc., R. Co. (Tex.) (41 S. 
 
 W. Rep. 306) 191 
 
 Dobson v. Finley (N. C.) (8 Jones 495) 623 
 
 v. Hohenadel (Pa. Sup.) (23 Atl. Rep. 
 
 1128) 600 
 
 Dodd v. Holme (i A. & E. 493) 327 
 
 v. Witt (139 Mass. 63) 606 
 
 Dodge v. Berry (N. Y.) (25 Alb. L. Jour. 
 
 303) : 166 
 
 v . Council Bluffs (57 la. 560) 146, 147 
 
 v. Marten (7 Oreg. 456) 77 
 
 Doe v. Attica (7 Ind. 641) 702 
 
 v. Brown (4 Ind. 143) 687 
 
 v. Jones (n Ala. 63) 703 
 
 v. Prettyman (Del.) (i Houst. 339) 42 
 
 v. Roe (Del. Super.) (32 Atl. Rep. 391, 
 
 7 Houst. 386) 516 
 
 v. Thompson (5 Cowen 371) 571 
 
 v. Vallejo (20 Cal. 386) 588,589,590 
 
 v. Wood (2 Barn. & Aid. 724) 667 
 
 Doherty v. Thayer (31 Cal. 140 "[1866]) 624 
 
 Dohoney v. Womack (Tex.) (20 S. W. Rep. 
 
 950) 554 
 
 Donahue v. Morgan (Colo.) (50 Pac. Rep. 
 
 1038 [1897]) 664 
 
 Donaldson v. Hibner (55 Mo. 492) 499 
 
 v. Oleonor (45 N. Y. Sup. Ct. 27) 530 
 
 v. Rail (Tex.) (37 S. W. Rep. 16). . .467, 495 
 
 Donehoo v. Johnson (Ala.) (21 So. Rep. 
 
 70) 553 
 
 Donelson v. Posey (13 Ala. 752) 42 
 
 Donohue v. Whitney (N. Y. App.) (30 N. 
 
 E. Rep. 848) 624 
 
 Doolittle v. Bailey (la.) (52 N. W. Rep. 
 
 337) 501, 580 
 
 v. McCullogh (7 Ohio St. 299) 48 
 
 Dorgan v. Weeks (Ala.) (5 So. Rep. 581 
 
 [1889]) 55i 
 
 Dorman v. Ames (12 Minn. 451) 85 
 
 Dorr -v. Hammond (7 Colo. 79) 76 
 
 v. School Dist. (40 Ark. 237) 520,526 
 
 Dorrity v. Rapp (72 N. Y. 307) 324, 330 
 
 Dorsey v. Habersack (Md.) (35 Atl. Rep. 
 
 96) 337, 340 
 
 Doucette v. Little Falls Imp. & Nav. Co. 
 
 (Minn.) (73 N. W. Rep. 847 [1898]) 85 
 
 Dougherty v. Stepp (i Dev. & Battle 371) 
 
 [1835]) 352 
 
 Doughty v. Sommerville & E. R. Co. (3 
 
 Halst. Ch. 51, 63) 353 
 
 Douglass v. Coonley (Sup.) (32 N. Y. 
 
 Supp. 444) 649 
 
 v. Irvine (126 Pa. St. 643 [1889]) 521 
 
 v. Shunway (Mass.) (13 Gray 498) 667 
 
 Dowdle v. Cornue (S. D.) (68 N. W. Rep. 
 
 194) .- 579 
 
 Downing v. Dinwiddie (Mo. Sup.) (33 S. 
 
 W. Rep. 470) 516 
 
 v. Mayes (IK.) (38 N. E. Rep. 620).... 530 
 
 Drake r. Hamilton W. Co. (99 Mass. 574) 84 
 
 v. Wells (Mass.) (n Allen 141) 669 
 
 Drew v. Hicks (Cal.) (35 Pac. Rep. 563), 
 
 178, 212 
 
 v. Smith (46 N. Y. 204,210) 558 
 
 Drucker v. Manhattan Ry. Co. (N. Y.) (12 
 
 N. E. Rep. 568 [1887]) 764 
 
 Drury v. Midland R. Co. (127 Mass. 
 
 571) 623 
 
 Dubois v. Beaver (25 N. Y. 123) 312,313,314 
 
 v. Du Bois W. Co. (Pa. Sup.) (35 
 Atl. Rep. 248) 148 
 
 Dubuque v. Coman (64 Conn. 475) 521 
 
 v. Maloney (9 Iowa 450) 703 
 
 Dubuque & Dak. R. Co. v. Diehl et al. (64 
 
 Iowa) 751 
 
 Dudden v. Glutton Union (i H. & N. 
 
 627) 1720 
 
 Duer v. Doherty (U. S.) (26 Pittsb. Leg. 
 
 J. 104) 717 
 
 Duesler v. Johnstown (48 N. Y. Supp. 683 
 
 [1898]) 54, 55 
 
 Duke v. Helms (Tenn.) (45 S. W. Rep. 
 
 465) 522 
 
XXXVI 
 
 TABLE OF CASES. 
 
 ss 
 
 Dumont v. Kellogg (29 Mich. 420) 59 
 
 Dun v. Miller (75 Mo. 260) 530 
 
 Duncan v. Duncan (N. C.) (i Ired. 466).. 485 
 v. Hall (N. C.) (23 S. E. ~ 
 
 Rep. 362). 587, 632 
 N. W. Rep. 
 
 Rodecker. (Wis.) (62 
 
 533) 6 44, 649 
 
 Dunham v. Gannett (124 Mass. 151 [1878]) 606 
 
 v. Joyce (Mo.) (31 S. W. Rep. 337).... 662 
 
 v. Kirkpatrick (101 Pa. St. 43) 283 
 
 v. New Britain (Conn.) (n Atl. Rep. 
 
 354 [1888]) 185 
 
 v. Railroad Co. (U. S.) (i Wai. 254).... 8 
 
 Dunlap v. Stetson (4 Mason 349) 407 
 
 Dunlop v. Kennedy (Cal.) (34 Pac. Rep. 
 
 92) 603 
 
 Dunniway v. Lawson (Idaho) (51 Pac. 
 
 Rep. 1032 [1898]) 74 
 
 Dunstan v. Jamestown (72 N. W. Rep. 899) 544 
 Durant v. Branksome, etc., Co. (C. A.) (L. 
 
 R. 2 Ch. 291 [1897]) 218 
 
 Duren v. Sinclair (22 S. C. 361) 530 
 
 Durfee v. Peoria, etc., Ry. Co. (111.) (30 
 
 N. E. Rep. 686) 523 
 
 Dutton v. Strong (i Black 23) 424 
 
 Duyal v. Becker (Md.) (32 Atl. Rep. 308) 645 
 
 Dwinel v. Barnard. (28 Me. 554) 105, 233 
 
 v. Veazie (44 Me. 167) 233 
 
 Dwyre v. Speer (Tex.) (27 S. W. Rep. 585), 
 
 559, 603, 611 
 Dyer v. Eldridge (Ind.) (36 N. E. Rep. 
 
 522) 467, 501 
 
 Dyke v. Caldwell (Ariz.) (18 Pac. Rep. 276 
 
 [1888]) 75 
 
 E. 
 
 Eagen v. 42d St. R. Co. (19 N. Y. St. Rep. 
 
 676) ........................................ 794 
 
 Earl v. Dehart (12 N. J. Eq. 280) ......... 1720 
 
 Earl of S. v. Gt. N. R. Co. (L. R.) (10 
 
 Ch. Div. 707) .............................. 101 
 
 Earle v. Earle (i Spen. 347) ................ 45 
 
 Easterbrook v. Erie R. Co. (N. Y.) (51 
 
 Barb. 94) ................................... *93 
 
 Eastern R. R. Co. v. Allen (135 Mass. 13 
 
 [1883]) ..................................... 521 
 
 East Jersey Water Co. v. Bigelow (N. J.) 
 
 (38 Atl. Rep. 631 [1897]) ................... 306 
 
 East Line R. Co. v. Garrett (52 Tex. 133).. 735 
 East London N. W. Co. v. Leyton Sewer 
 
 Auth. (Eng.) (L. R. 6 Q. B. 669 [1871]).. 172 
 East Omaha Ld. Co. v. Jeffries (40 Fed. 
 
 Rep. 386) ................................ 377, 378 
 
 . St. 
 
 793 
 
 Easton, etc., R. Co. v. Easton (133 Pa. 
 
 505) ........................................ 
 
 E. Tenn. I. & C. Co. v. Ferguson (Tenn.) 
 
 (35 S. W. Rep. 900) ....................... 504 
 
 - v. Walton (Tenn. Ch. App.) (35 S. 
 W. Rep. 459) ............................... 687 
 
 East Tenn. Teleph. Co. v. Chattanooga El. 
 Ry. Co. (Tenn. Ch. (2 Amer. El. Cas. 
 323 [1889]) .............................. 296, 831 
 
 - v. Knoxville St. R. Co. (Tenn. Ch. Ct. 
 of Knox Co.) (3 Amer. El. Cas. 400 
 [1890]) .................................. 295, 831 
 
 Eaton v. Boston, C. & M. R. Co. (51 N. H. 
 504, 525).....-.......... .................... 353 
 
 - v. Perry (29 Mo. 96) .................... 42 
 
 Eaves v. Estes (10 Kan. 314) ................ 8 
 
 Eckerson v. Village of Haverstraw (39 N. 
 
 Y. Supp. 635) .............................. 705 
 
 Eckert v. Peters (N. J. Ch.) (36 Atl. Rep. 
 
 491) ........................................ 712 
 
 Eddy v. Chace (140 Mass. 471) .............. 55 
 
 v. Simpson r? Cal. 249) .............. 71.76 
 
 Edens v. Miller (Tad.) (46 N. E. Rep. 526) 555 
 Edgar v. Stevenson (70 Cal. 286) ............ 75 
 
 Edgerton v. Hoff (26 Ind. 568) .......... 166, 167 
 
 - v. McMullen (Kan.) (39 Pac. Rep. 
 1021) ....................................... 650 
 
 Edsall v. Howell (Sup.) (33 N. Y. Supp. 
 
 892) ........................................ 448 
 
 Edwards v. Humphreys (Tex.) (36 S. W. 
 
 Rep- 333) ............. ...................... 516 
 
 Edwards v. Ogle (76 Ind. 302) 421 
 
 v. Peoria (66 111. App. 68) 187 
 
 Edwardsville, City of, v. Barnsback (66 111. 
 
 App. 381) 707 
 
 Eels v. Amer. Teleg. & Teleph. Co. (Sup.) 
 
 (20 N. Y. Supp. 600) 814,815 
 
 Egener v. New York, etc., R. Co. (Sup.) 
 
 (38 N. Y. Sup. 319) 191 
 
 Eggleston v. N. Y., etc., R. Co. (N. Y.) 
 
 (35 Barb. 162) 741 
 
 Eidemiller Ice Co. v. Guthrie (Neb.) (60 
 
 N. W. Rep. 717) 166 
 
 Elder v. Lykens Va. Coal Co. (Pa. Sup.) 
 
 (27 Atl. Rep. 545) 217 
 
 Eldert v. Long Island Electric Ry. Co. 
 
 (51 N. Y. Supp. 186) 797 
 
 Eldridge v. Parish (Tex.) (25 S. W. Rep. 
 
 49) 516 
 
 Elgin v. Beckwith (111.) (10 N. E. Rep. 558 
 
 [1887]) 383, 388, 625 
 
 Ellinger v. Missouri Pac. Ry. Co. (Mo. 
 
 Sup.) (20 S. W. Rep. 800) 379 
 
 Elliot v. Pearl (10 Pet. 412) 620 
 
 Elliott v. Fitchburg R. Co. (Mass.) (10 
 
 Cush. 191) 63, 101, 167 
 
 v. Gibson (Ky.) (29 S. W. Rep. 620)... 600 
 
 v. Gilchrist (9 Atl. Rep. 382 [1887]) 550 
 
 Ellis v. Duncan (N. Y.) (21 Barb. 230) .275 
 
 v. Iowa City (29 la. 2.29) 188,190 
 
 if. Lond. & S. W. Ry. Co. (2 Hurlst. 
 
 & Norm. 424) 318 
 
 v. Tone (58 Cal. 289) 71 
 
 Elmore v. Davis (S. C.) (26 S. E. Rep. 
 
 680) 500 
 
 Elshoff v. Deremo (C. P.) (3 Ohio N. P. 
 
 273) 324 
 
 Elster v. Springfield (49 Ohio St. 82, 30 
 
 N. E. Rep. 274) 255,262,844 
 
 Ely v. Ely (Mass.) (6 Gray 439) 47 
 
 v. Parsons (Conn.) (10 Atl. Rep. 499).. 703 
 
 Embry v. Owen (6 Exch. 353) 71,101,301 
 
 Emerson v. Bergin (Cal.) (18 Pac. Rep. 
 
 264 [1888]) 89 
 
 v. Com. (108 Pa. St. 126) 283 
 
 Emery v. Fowler (38 Me. 99, 102) 491,499 
 
 v. Raleigh, etc., R. Co. (102 N. C. 209) 114 
 
 Emporia v. Soden (25 Kan. 588) 62,275 
 
 Enfield v. Day (7 N. H. 459) 518 
 
 England v. Vandermark (111. Sup.) (35 N. 
 
 E. Rep. 465) 573 
 
 Engle v. Hunt (Neb.) (69 N. W. Rep. 970) 683 
 English v. Brennan (60 N. Y. 609 [1875]), 
 
 v. Danville (99 111. App. 28 
 
 Engs v. Peckham (n R. I. 290 
 Eno 
 
 451, 453 
 [1897])... 44i 
 
 1877]) 381 
 
 Del Vecchio (N. Y.) '(4 Duer 53), 
 
 3 2 5, 327 
 
 Enterprise v. State (Fla.) (10 So. Rep. 740) 546 
 Erie v. Erie Canal Co. (59 Pa. St. 174) .... 88 
 Ermentraut v. Stitzel (Pa.) (33 Atl. Rep. 
 
 103) 649 
 
 Ernsting v. Gleason (Mo. Sup.) (39 S. W. 
 
 Rep. 70) 497, 498 
 
 Eshleman v. Malter (Cal.) (35 Pac. Rep. 
 
 860) 597 
 
 v. Township of Martic (Pa. Sup.) (25 
 
 Atl. Rep. 178) 107,194 
 
 Esmond v. Chew (15 Cal. 137) 75 
 
 Esson v. Wather (Oreg.) (34 Pac. Rep. 
 
 756) 85, 86, 223 
 
 Estey v. Baker (50 Me. 325, 525) 598 
 
 Eufaula v. Simmons (86 Ala. 515) 223 
 
 Eulrich v. Richter (37 Wis. 230) 172, 
 
 Eureka, City of, v. Croghan (19 Pac. Rep. 
 
 485 [1889]) 706 
 
 Evans v. Blankenshirm (Ariz.) (39 Pac. 
 
 Rep. 812) 709 
 
 Evans v. Gale (18 N. H. 401) 48 
 
 v. McKinsey (Ky.) (6 Litt. 262) 465 
 
 v. Merriweather (4 111. 495) 60 
 
 v. Miller (58 Miss. 120) ..._ 499 
 
 172, 1720 
 
 Evans' Adm'r v. Temple (35 Mo. 494) 588 
 
 Evansville v. Decker (84 Ind. 325) 188 
 
 Everett v. Hyd. F. T. Co. (23 Cal. 225).... 87 
 
 Evansville v. Decker (84 Ind. 325) 188 
 
 Everett v. Hyd. F. T. Co. (23 Cal. .. 
 
 v. Newton (N. C.) (23 S. E. Rep. 961). 528 
 
TABLE OF CASES. 
 
 XXXV11 
 
 Ewart v. Belfast P. L. Guard. (L. R. 9 
 Ir. 172) 256, 259 
 
 Ewing v. Colquhoun (L. R. 2 App. Cas. 
 839) 83, 109 
 
 F. 
 
 Fabian v. Collins (3 Mont. 215) 75 
 
 Fahey v. Marsh (40 Mich. 236 [1879]) 500 
 
 Fairfield v. Williams (4 Mass. 427) 707 
 
 Fallbrook Irr. Dist. v. Bradley (17 Sup. 
 
 Ct. Rep. 16) 74 
 
 Falls Village W.-p. Co. v. Tibbetts (31 
 
 Conn. 165) 578 
 
 Faloon v. Simshauer (111.) (22 N. E. Rep. 
 
 835) 514 
 
 Fannin v. Bellamy (Ky.) (5 Bush 663) 592 
 
 Fanning v. Osborne (192 N. Y. 441) 708,797 
 
 Farbell v. Bowman (103 Mass. 341 [1869]), 
 
 588, 590 
 
 Parish v. Coon (40 Cal. 33) 518 
 
 Farkas v. Towns (Ga.) (29 S. E. Rep. 700 
 
 [1897]) 193 
 
 Farmer v. Ukiah W. Co. (56 Cal. 11) 77 
 
 Farmers' Coop. Mfg. Co. v. Albemarle, 
 
 etc., R. Co. (N. C.) (23 S. E. Rep. 43).. 240 
 Farmers' High Line Canal v. Southworth 
 
 (Colo.) (4 Law Rep. Ann. 767 [1889]) 75 
 
 Farmers' L. & T. Co. v. Galesburg (133 
 
 U. S. 156) 148 
 
 Farr v. Swan (2 Pa. 245) 628 
 
 Farrand v. Marshall (21 Barb. 409) 321,323 
 
 Farwell v. Sturgiss W. Co. (S. D.) (73 
 
 N. W. Rep. 916 [1898]) 256 
 
 Fay v. Prentice (Eng.) (i C. B. 838) 181 
 
 Fenley v. Flowers (Tex.) (23 S. W. Rep. 
 
 749) ' 57i 
 
 Ferguson v. Crick (Ky.) (23 S. W. Rep. 
 
 668) 494 
 
 v. Firmenich Mfg. Co. (77 Iowa 576), 
 
 214, 223 
 
 Ferrea v. Knipe (28 Cal. 340). 60,71,81 
 
 Ferris v. Wellborn (64 Miss. 29) 1720 
 
 Field v. Barling (111.) (37 N. E. Rep. 850), 
 
 714, 718 
 
 v. Mark (Mo.) (28 S. W. Rep. 1004).. 715 
 Finegan v. Eckerson (Sup.) (52 N. Y. 
 
 Supp. 933 [1898]) 329 
 
 ). Funk (Kan.) (12 Pac. Rep. 15 
 
 495 
 
 )) 194 
 
 3o. (5 Pa. Super. 
 
 Finley 
 
 v. Hershey (41 la. 3* 
 Finnegan v. Penn. Trust 
 
 530 
 
 124 [1897]) 
 
 Fin v. Wis. Land .Co. (Wis.) (40 N. W. 
 
 Rep. 209) 521 
 
 Fird v. Harris (Ga.) (2 S. E. Rep. 144).... 650 
 Firmstone v. Sparter (Pa. Sup.) (25 Atl. 
 
 Rep. 41) 448 
 
 Fisher v. Smith (9 Gray 441 [1857]) 453 
 
 Fisk v. Hartford (69 Conn. 375) 220 
 
 v. Havana (88 111. 208) 704 
 
 Fitch v. Seymour W. Co. (Ind.) (37 N. E. 
 
 Rep. 982) 148 
 
 Fitzgerald v. Britt (43 Iowa 498) 584 
 
 v. Firbank (C. A.) (L. R. 2 Ch. 96 
 
 [1897]) 204 
 
 v. Libby (Mass.) (22 Reptr. 613 [1886]), 
 
 v. Mo. Pac. R. Co. (35 Fed. Rep. 812)' 732 
 
 Fitzpatrick v. Boston & M. R. Co. (84 Me. 
 
 Flannery v. Hightower (Ga!) '(25 *S.' 'E.' Rep. 
 
 370 521 
 
 Flaten v. Moorhead (Minn.) (59 N. Y. Rep. 
 
 1 144) 755 
 
 Flax Pond W. Co. v. Lynn (Mass.) (16 N. 
 
 E. Rep. 742 [1888]) 444 
 
 Fleming v. Wilmington, etc., R. Co. (N. 
 
 C.) (20 S. E. Rep. 714) 114 
 
 Fletcher v. Phelps (28 Vt. 257) 421 
 
 v. Rylands (L. R. 3 H. L. Cas. 330), 
 
 267, 292 
 v. Smith (L. R. 7 Exch. 305) 105 
 
 Fletcher v. Thunder Bay R. B. Co. (51 
 
 Mich. 277 [1883]) 431 
 
 Flint v. Long (Wash.) (41 Pac. Rep. 49).. 522 
 Floyd v. Boulder F. & M. Co. (Mont.) (28 
 
 Pac. Rep. 450) 75 
 
 v. Rome St. R. Co. (77 Ga. 614) 784 
 
 Foley v. McCarthy (Mass.) (32 N. E. Rep. 
 
 669) . . . 451, 576, 577 
 
 v. Wyeth (2 Allen 131) 327 
 
 Folk v. Varn' (9 Rich. Eq. 303) 46 
 
 Follendore v. Thomas (Ga.) (20 S. E. Rep. 
 
 329) 683 
 
 Foot v. New Haven, etc., Co. (23 Conn. 
 
 214) 741 
 
 Foran v. Mclntyre (Pa. Com. PI.) (26 
 
 Pittsb. Leg. J. N. S. 468) 843 
 
 Forbell v. New York (56 N. Y. Supp. 790 
 
 [1899]) 
 
 252, 255 
 
 Forbish v. Goodwin (25 N. H. 425) 
 
 Pa. St. 31) 283 
 
 344) 8 
 
 v. Harris (Ga.) (22 S. E. Rep. 452)... 714 
 
 Ford v. Buchanan (in 
 v. Cobb (20 N. Y. 
 
 v. Schlosser (Com. PI. N. Y.) (34 N. 
 
 Y. Supp. 12) 336 
 
 v. Unity Ch. Soc. (Mo.) (25" S. W. 
 
 Rep. 394) 559 
 
 v. Whitlock (27 Vt. 265 [1855]) 105 
 
 v. Wilson (35 Miss. 490) 530 
 
 Fordyce v. Russell (Ark.) (27 S. W. Rep. 
 
 82) 52 
 
 Foreman v. Presbyterian Assn. (Md.) (30 
 
 Atl. Rep. 1114) 448 
 
 Forest v. Jackson (65 N. H. 357) 528 
 
 Forest River Lead Co. v. Salem (Mass.) 
 
 (42 N. E. Rep. 802) 493 
 
 Forrest Mill Co. v. Cedar Falls M. Co. 
 
 (la.) (72 N. W. Rep. 1076) 75 
 
 Forsythe v. Small (U. S.) (7 Biss. 201, 205 
 
 [1876]) : 4 2i 
 
 Fort v. New Haven, etc., Co. (23 Conn. 
 
 214) 740 
 
 Fortman v. Gupper (14 Ohio St. 558) 8 
 
 Forty Fort v. Forty Fort Water Co. (Pa.) 
 
 (9 Kulp 241 [1897]) 845 
 
 Fosdick v. Schall (99 U. S. 235, 251) 8 
 
 Foster v. Foss (77 Me. 280) 603 
 
 v. Joliet (27 Fed. Rep. 899) 148 
 
 Four-mile L. & C. C. Co. v. Gibson (Ky.) 
 
 (49 S. W.,Rep, 945 [1899])- ....... : . ... .^. ... 501 
 
 J45 [1899]) 
 Fowler v. Veefland (N. J.) (14 Atl. Rep. 
 
 116- [1888]) ......:..... . 422 
 
 Fox v. Western Pac. R. Co. (31 Cal. 538 
 
 [1867] ) 755 
 
 Franceour v. Newhouse (U. S.) (14 Sawy. 
 
 600) 534 
 
 Francis v. Newark (N. J.) (33 Atl. Rep. 
 
 853) 617 
 
 Frank v. Hicks (Wyo.) (35 Pac. Rep. 475) 77 
 Frankfort, etc., T. Co. v. Phila., etc., R. 
 
 Co. (54 Pa. St. 345) 745 
 
 Frankland v. Moulton (5 Wis. i) 8 
 
 Franklin v. Woolridge (Ky.) (45 S. W. 
 
 Rep. 98 [1898]) 629 
 
 Franklin Tpk. Co. v. Crockett (Tenn.) 
 
 (2 Sneed 263) 303 
 
 Franklin Wh. v. Portland (67 Me. 46).... 242 
 Frazier v. Brown (12 Ohio St. 294). .262, 271, 275 
 Fred v. Kansas City Cable Ry. Co. (2 Mo. 
 
 App. Reptr. 1173) 7 gg 
 
 Frederick v. Devol (15 Ind. 357) 8 
 
 Freedman v. Conner (Tex. Civ. App.) (46 
 
 S. W. Rep. 47) 530 
 
 Freeholders v. Redbank Tpk. Co. (N. J.) 
 
 (3 C. E. Greene 91) 5 
 
 Freeman v. Bellegrade (Cal.) (41 Pac. 
 
 Rep. 289) 406, 407 
 
 v. Hairwig (Iowa) (51 N. W. Rep. 
 
 169) 338 
 
 v. Leighton (Me.) (38 Atl. Rep. 542 
 
 [1897]) 407 
 
 Fremont, etc., R. Co. v. Crum (30 Neb. 70) 320 
 Fremont R. Co. v. Marley (25 Neb. 138 
 
 [1889]) 178 
 
 French v. Camp (18 Me. 433) 168, 240 
 
 v. Richardson (5 Cush. 450 [1850]).... 469 
 
XXXVlil 
 
 TABLE OF CASES. 
 
 Frey v. Louden (70 Cal. 550) 75 
 
 Frick v. Penna. R. Co. (157 Pa. St. 622), 
 
 112, 114, 119 
 Fritz -v. Tompkins (Sup.) (41 N. Y. Supp. 
 
 985) 645, 715 
 
 Frost v Spaulding (19 Pick. 445 [1837])... 597 
 Fry v. Stowers (Va.) (22 S. E. Rep. 500), 
 
 625, 626 
 Fryatt v. Sullivan Co. (N. Y.) (5 Hill 116) 8 
 
 Frye v. Moor (53 Me. 583) 167,274 
 
 Fudicker v. East Riverside Irr. Dist. (Cal.) 
 
 (41 Pac. Rep. 1024) 553 
 
 Fulcher v. White (Tex.) (48 S. W. Rep. 881 
 
 [1899]) 620 
 
 Fullam v. Foster (68 Vt. 59o). .526, 574, 583, 633 
 
 Fuller v. Daniels (63 N. H. 395) 84 
 
 v. Dauphin (124 111. 542 [1888]), 
 
 410, 431, 521, 598 
 
 v. Shedd (161 111. 462) 406,421,424 
 
 v. Swan R. P. Min. Co. (Colo.) (19 
 
 Pac. Rep. 836 [1889]) 101 
 
 v. Weaver (Pa. Sup.) (34 Atl. Rep. 
 
 634) 542 
 
 Fulton v. Mehrenfeld (8 Ohio St. 440) 701 
 
 Funk v. Haldeman (53 Pa. St. 243) 283 
 
 Furner v. Seabury (N. Y. 'App.) (31 N. E. 
 
 Rep. 1004) no 
 
 Fuselier v. Great So. Teleg. & Teleph. Co. 
 
 (24 So. Rep. 274) 814 
 
 G. 
 
 Gaffney v. City of S. F. (72 Cal. 146 [1887]) 560 
 Gage v. Smith (111.) (31 N. E. Rep. 430).. 523 
 Galesburg v. Galesburg W. Co. (34 Fed. 
 
 Rep. 675) 148 
 
 Gallagher v. Kingston W. Co. (N. Y.) (25 
 
 App. Div. 82 [1898]) 104, 138 
 
 v. Rahm (Tex.) (31 S. W. Rep. 327).. 559 
 
 v. Riley (Tenn.) (35 N. W. Rep. 451).. 493 
 
 Galland v. Jackman (26 Cal. 85) 47 
 
 Galveston, H. & S. A. Ry. Co. v. Haas 
 
 (Tex.) (37 S. W. Rep. 167) 223 
 
 Galveston, etc., Ry. Co. v. Parr (Tex.) (28 
 
 S. W. Rep. 264) 190, 192 
 
 Pfeuffer (56 Tex. 66 [1881]) 353 
 
 742 
 
 v. Pfeuffer (56 Tex. 66 [1881]) 
 
 v. Spinks (Tex.) (36 S. W. Rep. 780) 
 
 Gamble v. Hamilton (Fla.) (12 So. Rep. 
 
 229) 516 
 
 Gannon v. Hargadon (10 Allen 106) 177 
 
 Garcia v. Illig (Tex.) (37 S. W. Rep. 471) 516 
 Garden City S. Co. v. Miller (111.) (41 N. 
 
 E. Rep. 753) 546 
 
 Gardiner v. Camden (86 Me. 376) 119 
 
 Gardner v. Gardner (N. Y.) (22 Wend. 526) 42 
 
 v. Holland (S. C.) (19 S. E. Rep. 997) 516 
 
 v. Masters (N. C.) (3 Jones Eq. 462) 473 
 
 v. Newburg (N. Y.) (2 Johns. Ch. 162) 143 
 
 v. Webster (N. H.) (15 Atl. Rep. 144 
 
 [1888]) 712 
 
 Garitee v. Baltimore (53 Md. 422) 242 
 
 Garrad v. Silver Pk. Mines (82 Fed. Rep. 
 
 578) 
 
 Garrell v. Greensboro W.-supply Co. (N. 
 
 C.) (32 S. E. Rep. 720 [1899]) 
 
 Garstang v. City of Davenport (Iowa) (50 
 
 573 
 
 148 
 
 N. W. Rep. 876) 
 
 Garvin v. Dean (115 Mass. 577) 603 
 
 Garwood v. N. Y. Cent. R. Co. (83 N. Y. 
 
 40O) 63, IOI , 102 
 
 Gary v. Woodham (Ala.) (15 So. Rep. 840) 530 
 Gas Lt. Co. v. Indus. Wks. (28 Mich. 181), 
 
 401, 431 
 Gassert v. Noyes (Mont.) (44 Pac. Rep. 
 
 959) 75.76 
 
 Gates v. Lewis (7 Vt. 511) 545 
 
 Gates v. N. Pac. R. Co. (64 Wis. 64) 240 
 
 Gatewood v. Cooper (Ky.) (38 S. W. Rep. 
 
 690) 677 
 
 Gavigan v. Atl. Ref. Co. (Pa.) (40 Atl. 
 
 Rep. 834 [1898]) 207,223,265 
 
 Gavit v. Chambers (3 Ohio 496) 401 
 
 Gayhart v. Cornett (Ky.) (42 S. W. Rep. 
 
 730 [1897]) 498 
 
 Gaylord v. King (142 Mass. 495) 319 
 
 Gayner v. Hall (60 Mo. 271) 520 
 
 Gd. June. R. Co. v. Middlesex (Mass.) 
 
 (14 Gray 553) 752 
 
 Gd. June. C. Co. v. Shugar (L. R. 6 Ch. 
 
 487) 171, 275 
 
 Gedge, etc., v. Commonwealth (Ky.) (9 
 
 Bush 61) 706 
 
 Gehlen v. Knorr (la.) (70 N. W. Rep. 757) 83 
 Geneva, Trustees oi,.v. Brush E. Co. (N. 
 
 Y.) (50 Hun 581 [1888]) 826 
 
 Gentile v. Crossan (N. M.) (38 Pac. Rep. 
 
 247) 553 
 
 Gentleman v. Spule (83 Am. Dec. 264). .703, 704 
 
 Gentry v. Hamilton (3 Ired. Eq. 376) 592 
 
 George v. Bates (Va.) (20 S. E. Rep. 828). 5540 
 Gerke v. Lucas (La.) (60 N. W. Rep. 538) 631 
 Gerrard v. Silver Peak Mines (U. S. C. C.) 
 
 (82 Fed. Rep. 578 [1897]) 581 
 
 Gerrish v. Newmarket Mfg. Co. (30 N. H. 
 
 478) 84 
 
 v. Union Wharf Co. (26 Me. 395)...-. 374 
 
 Gibbs v. Larrabee (37 Me. 506) 706 
 
 v. Senft (12 Cush. 393) 45 
 
 Gibson v; Kelly ; (Mont.) (39 Pac. Rep. 517) 414 
 
 v. Puchta (33 Cal. 310) 81 
 
 Giddings v. Hadaway (28 Vt. 342).. 
 
 Gifford v. Yarborough (5 Bing. 163) 372,376 
 
 Gildersleeve v. Hammond (Mich.) (67 N. 
 
 W. Rep. 519) 330 
 
 v. N. Y., N. H. & H. R. Co. (82 Fed. 
 
 Rep. 763 [1897]) 121 
 
 Giles v. Simonds (Mass.) (15 Gray 441) 667 
 
 Gilzinger v. Saugerties W. Co. (Sup.) (21 
 
 N. Y. Supp. 121) 54,55,104 
 
 Gillespie v. Forest (N. Y.) (18 Hun no).. 112 
 Gillespie Tool Co. v. Wilson (123 Pa. St. 
 
 19) 284 
 
 Gillett v. Johnson (30 Conn. 180) 1720 
 
 Gillis v. Chase (N. H.) (31 Atl. Rep. 18), 
 
 Gill v. Weston (no Pa. St. 313) 283 
 
 Gillmore v. Driscoll (122 Mass. 199) 326 
 
 Ginocchio v. Amador C. & M. Co. (67 Cal. 
 
 493) 77 
 
 Girard College, etc., R. Co. v. Thirteenth, 
 
 etc., R. Co. (Penn.) (7 Phila. 620) 754 
 
 Gladfelter v. Walker (40 Md. i) 223 
 
 Glassell v. Verdugo (Cal.) (41 Pac. Rep. 
 
 403) 58, 82 
 
 Gleason v. Tuttle (46 Me. 288 [1858]) 89 
 
 Glen v. Jeffrey (la.) (39 N. W. Rep. 160 
 
 [1880]) 410 
 
 Click v. Weatherwax (Wash.) (45 Pac. Rep. 
 
 156) 121 
 
 Gloss v. Furman (164 111. 584, 45 N. E. 
 
 Rep. 1019, 66 111. App. 127) 455 
 
 Glover v. Shields (32 Barb. 374, 380) 598,614 
 
 Gniadck v. Northwestern Imp. & Boom 
 
 Co. (75 N. W. Rep. 894) 85 
 
 Godfrey v. Altoona (12 111. 29) 379 
 
 Goff v. Cole (Miss.) (13 So. Rep. 870) 521 
 
 Gold v. Carter (Tenn.) (9 Humph. 369) 241 
 
 Golden Canal Co. v. Bright (8 Colo. 144). 73, 75 
 Goldsborough v. Pidduck (Iowa) (54 N. 
 
 W. Rep. 431) 550,624 
 
 Goldsmid v. Tunbridge Comm'rs (i' Eq. 
 
 161) 2ir 
 
 Golterman v. Schiermeier (Mo. Sup.) (28 
 
 S. W. Supp. 616) so< 
 
 Gonzales v. Leon (31 Cal. 98 [1866]) 59" 
 
 Good v. Altoona (Pa. Sup.) (29 Atl. Rep. 
 
 741) 204, 211 
 
 Goodale v. Tuttle (29 N. Y. 466) 275 
 
 Goodin v. Cine., etc., C. Co. (18 Ohio St. 
 
 169) i 735 
 
 Goodlittle v. Alker (i Burr. 133) 166 
 
 Goodman v. Myrick (5 Oregon 65) 586 
 
 Goodson v. Brothers (Ala.) (20 So. Rep. 
 
 443) 521, 528, 530 
 
 Goodwin v. McCabe (75 Cal. 584 [1887]), 
 
 522, 526, 617 
 Gordon v. Trimmier (Ga.) (18 S. E. Rep. 
 
 404) 549 
 
 Gorham v. Cross (125 Mass. 232) 272 
 
TABLE OF CASES. 
 
 XXXIX 
 
 Gorham v. Eastchester El. Co. (Sup.) (30 
 N. Y. Supp. 125) .......................... 448 
 
 Gould v. Eastern R. Co. (142 Mass. 85 
 [1886]) .................................. 453, 454 
 
 - v. Eaton (Cal.) (49 Pac. Rep. 577), 
 
 61, 105, 219, 252 
 
 - v. McKenna (86 Pa. St. 297) .......... 181 
 
 - v. Stafford (77 Cal. 66).. 51, 52, 71, in, 214 
 Gouverneur v. National Ice Co. (134 N. Y. 
 
 355) ..................................... 407, 421 
 
 Governor v. Bowley (17 O. B. 358) .......... 5 
 
 Mi 
 
 Gower v. Quinlan (40 
 
 Grace M. E. Church v. Dobbins (Pa. Sup.) 
 
 ich. 572) .......... 1:30 
 
 obbins (Pa. Sup.) 
 (25 Atl. Rep. 1120) .................... 183,336 
 
 25 t. ep. 1120 .................... 183,33 
 
 Grady v. Walsner (46 Ala. 381) ............ 302 
 
 Graham v. Botner (Ky.) (37 S. W. Rep. 
 583) ........................................ 555 
 
 - v. Dewees (Tex. Sup.) (20 S. W. Rep. 
 127) ........................................ 584 
 
 Grandin v. Hernandez (29 Hun 399, 203) ---- 572 
 
 Grandona v. Loodal (70 Cal. 161) ...... 314,316 
 
 Grand Rapids v. Power (Mich.) (50 N. 
 
 W. Rep. 661) .............................. 381 
 
 Grand Rapids & I. R. Co. v. Butler (15 
 
 Sup. Ct. 991) ............................... 406 
 
 Grange v. Pately Bridge G. & W. Co. 
 
 (14 Gas J. 309) ............................ 305 
 
 Grant v. Davenport (36 la. 396) ............ 147 
 
 - v. Grant (5 C. P. 727) .................. 556 
 
 - v. McDonogh (7 La. Ann. 477) ........ 131 
 
 - v. Moon (Mo. Sup.) (30 S. W. Rep. 
 328) ........................................ 449 
 
 Gratz v. Hoover (16 Pa. St. 232 [1851]) ____ 576 
 Graves v. Kansas City, P. & G. R. Co. (69 
 Mo. App. 574) ............................ 138 
 
 - v. Mattison (Vt.) (10 Atl. Rep. 674 
 [1887]) ..................................... 593 
 
 - v. Mattison (Vt.) (38 Atl. Rep. 498), 
 
 328, 573 
 
 - v. Shattuck (35 N. H. 257) ...... ....... 319 
 
 - v. Texas, etc., R. Co. (Tex.) (31 S. W. 
 Rep. 87) .................................... 631 
 
 Gray v. Harris (107 Mass. 492) ............ 85,90 
 
 - v. McWilliams (98 Cal. 157) ............ 136 
 
 - v. Saco W.-p. Co. (85 Me. 526) ........ 75 
 
 Graydon v. Kurd (C. C. A.) (55 Fed. Rep. 
 
 724) ........................................ 528 
 
 Graza v. <Brown (Tex.) (11 S. W. Rep. 
 
 920) ........................................ 504 
 
 Gt. Northern Ry. Co. v. St. Paul (Minn.) 
 
 (63 N. W. Rep. 96) ....................... 709 
 
 Gt. Western R. v. Swindon R. Co. (52 L. 
 
 J. R. Ch. 306) (s.c., 53 L. J. R. Ch. 1075) 5 
 Greeley v. Weaver (Me.) (13 Atl. Rep. 575 
 
 [1888]) ................................. 542,578 
 
 Green r. Canaan (29 Conn. 157) ............ 704 
 
 - - v. Convon (29 Conn. 157) ............... 706 
 
 - v. Doane (15 Cal. 304) .................. 614 
 
 - v. Gilbert (60 N. H. 144) .............. 222 
 
 - - v. Oakes (17 111. 249) ................... 703 
 
 - -v. Richmond (Mass.) (29 N. E. Rep. 
 770) ........................................ 717 
 
 Green Bay Canal Co. v. Kaukauna W. P. 
 Co. (61 N. W. Rep. 1121, 70 Wis. 635), 
 
 83, 107, 241 
 Greencastle v. Hazlett (23 Ind. 186) ....... 267 
 
 Greene v. Minnemacher (36 Wis. 50) ____ 201,208 
 
 - v. Smith (57 Vt. 268) .................. 499 
 
 Greenleaf v. Brooklyn E. R. Co. (8 N. Y. 
 
 Supp. 30) ................................... 573 
 
 Greenwell v. Low Beechburn C. Co. (Eng.) 
 
 . i 
 Greenwood 
 
 (2 Q. B. 165 [1897]). 
 
 ureenwood v. Freight Co. (105 U. S. 13).. 765 
 Greer v. Powell (la.) (56 N. W. Rep. 440), 
 
 502, 605 
 
 v. Squire (V.'ash.) (37 Pac. Rep. 545).. 577 
 
 v. Van Meter (N. J. Ch.) (33 Atl. Rep. 
 
 794) '. 307 
 
 Gregg v. Hill (Tex.) (17 S. W. Rep. 838).. 584 
 
 Gregory v. Knight (50 Mich.) 352 
 
 Gress Lumb. Co. v. Coody (Ga.) (21 S. E. 
 
 Rep. 217) 5540 
 
 Grey v. Paterson (N. J. Ch.) (42 Atl. Rep. 
 
 7.49 [1899]) 201, 205, 207, 213, 215, 219 
 
 Uridley v. Wynant (23 How. 503) 45 
 
 Grief v. Norfolk & W. R. Co. (Va.) (30 S. 
 
 E. Rep. 438 [1898]) 612, 
 
 Grier v. Puterbaugh (108 111. 602 [1884]).... 
 
 Griffin v. Bixby (12 N. H. 454) 
 
 v. Johnson (111. Sup.) (44 N. E. Rep. 
 
 206) 
 
 Griffith v. Schwenderman (27 Mo. 412) 
 
 Griffiths v. Morrison (106 N. Y. 165).... 336, 
 Grigsby v. Combs (Ky.) (21 S. W. Rep. 37) 
 
 Groat v. Moak (26 Hun 380) 
 
 Grogan v. Burling Mills (124 Mass. 390).. 
 Groner v. Foster (Va.) (27 S. E. Rep. 493) 
 
 381, 382, 
 
 Grube v. Wells (34 Iowa 148) 
 
 Guardhous v. Blackburn (L. R. i P. & D. 
 
 109) 
 
 Gugliemi v. Geismar (La.) (14 So. Rep. 
 
 501) * 
 
 Guille v. Swan (19 Johns. N. Y. 381) 351, 
 
 Guinn v. Spillman (Kan.) (35 Pac. Rep. 13) 
 Gulf, C. & S. F. Ry. Co. v. Calhoun 
 
 (Tex. Civ. App) (24 S. W. Rep. 362).... 
 Gulf, etc., Ry. Co. v. Southwestern Tel. & 
 
 Teleph. Co. (Tex.) (45 S. W. Rep. 151).. 
 Gunn v. Harriss (Ga.) (14 S. E. Rep. 593) 
 
 Gunther v. Draubauer (38 Atl. Rep. 33) 
 
 Gwynn v. Swartz (40 Alb. L. J. 374 [1889]), 
 
 494 
 G. R. & I. R. R. Co. v. Heisel (38 Mich.' 
 
 62) 
 
 
 
 621 
 554 
 313 
 
 431 
 521 
 676 
 620 
 82 
 545 
 
 5i8 
 558 
 
 583 
 352 
 52i 
 
 811 
 626 
 717 
 
 497 
 
 446 
 
 H. 
 
 Hackney v. State (8 Ind. 494) 303 
 
 Hagan v. Campbell (Ala.) (8 Port. 9) 53 
 
 Hagerty v. Lee (N. J.) (15 Atl. Rep. 399 
 
 [1888]) 307 
 
 Hagey v. Detweiler (35 Pa. St. 409) 518 
 
 Haggard v. Martin (Tex. Civ. App.) (34 
 
 5 W. Rep. 660) .......:? 516 
 
 Hague v. Nephi Irr. Co. (Utah) (52 Pac. 
 
 Rep. 765) 105 
 
 v. Wheeler (157 Pa. St. 524, 27 Atl. 
 
 Rep. 714) 282- 
 
 Hahn v. Dawson (Mo. Sup.) (36 S. W. 
 
 Rep. 233) .378, 390 
 
 Haight v. Keokuk (4 la. 199) 235 
 
 v. Littlefield (Sup.) (24 N. Y. S. 1097) 714 
 
 Haines v. Hall (17 Ore. 165) 233,243. 
 
 v. Welch (14 Ore. 319) 243 
 
 Halbert v. Brown (Tex.) (31 S. W. Rep. 
 
 535) "523. 
 
 v. Mayesville, etc., R. Co. (Ky.) (33 
 
 S. W. Rep. 1121) 535 
 
 Haldeman v. Bruckhart (45 Pa. St. 514) 253 
 
 Hale* P. McLea (52 Cal. 581, 53 Cal. 578). .71, 259 
 
 Hall v. Eaton (139 Mass. 217 [1885]) 586,587 
 
 v. Kleeman (C. P.) (4 Ohio N. P. -201, 
 
 6 Ohio Dec. 323) 324 
 
 v. McLeod (Ky.) (2 Mete. 98) 703 
 
 v. Rood (40 Mich. 46 [1879]) (48 Mich. 
 
 368, 65 Mich. 84) 336 
 
 Halley v. Fontain (Tex.) (33 S. W. Rep. 
 
 260) 546 
 
 Halliday v. Hess (111. Sup.) (35 N. E. Rep. 
 
 380) 546, 551 
 
 Halsey v. McCormick (13 N. Y. 296).... 373, 407 
 
 v. McCormick (18 N. Y. 150) 382 
 
 Halstead v. Mullen (93 N. C. 252 [1885]).. 625 
 
 Ham v. Salem (100 Mass. 350) 167,169 
 
 Hamilton v. Vickburg, etc., R. Co. (34 La. 
 
 Ann. 970) 116 
 
 v. White (5 N. Y. 9) 6 4 8 
 
 Hamlin v. Pairpoint (141 Mass. 51) 446 
 
 Hamm v. San Francisco (17 Fed. Rep. 119) 606 
 Hammann v. Jordan (N. Y. App.) (29 N. 
 
 E. Rep. 294) 343 
 
 Hammond v. McLachlan (N. Y.) (i Sandf. 
 
 323) 448 
 
 v. Rose (u Colo. 524) (19 Pac. Rep. 
 
 466 [1889]) 74,75 
 
 Hanbury v. Woodland Lumber Co. (Ga.) 
 
 (26 S.'E. Rep. 477) 703 
 
 Hand v. Brookline (126 Mass. 324) 145 
 
xl 
 
 TABLE OF CASES. 
 
 Hanford v. McNair (N. Y.) (9 Wend. 54) 45 
 
 v. St. Paul, etc., R. Co. (43 Minn. 104) 52 
 
 Hanlin v. Chicago & N. W. Ry. Co. (61 
 
 Wis. 515 [1884]) 120 
 
 Hanlon v. Hobson (Colo.) (51 Pac. Rep. 
 
 433 [1897]) 406 
 
 v. Union Pac. Ry. Co. (Neb.) (58 N. 
 
 W. Rep. 580) 554, 623 
 
 Hannibal Mfg. Co. v. Shaubacher (57 Mo. 
 
 582 [1874]) 449 
 
 Hanover W. Co. v. Ashland I. Co. (84 Pa. 
 
 St. 279) 194 
 
 Hansom v. Campbell (20 Md. 223) 454 
 
 Hanson v. McCue (42 Cal. 303) 257 
 
 v. Red Rock Tp. (S. D.) (57 N. W. 
 
 Rep. n) 579, 580 
 
 Haps v. Hewitt (97 111. 498) 378 
 
 Hardin v. Jordan (n Sup. Ct. Rep. 808, 
 
 838) 410, 421 
 
 Harding v. Jasper (14 Cal. 643) 703 
 
 v. Stamford W. Co. (41 Conn. 87) 62 
 
 v. Whitney (40 Ind. 379) 135 
 
 v. Wright (Mo. Sup.) (24 S. W. Rep. 
 
 211) 587 
 
 Hardy v. Alabama & V. Ry. (Miss.) (19 
 
 So. Rep. 661) 685 
 
 v. Memphis (Tenn.) (10 Heisk. 127).. 708 
 
 v. Waltham (Mass.) (3 Met. 163) 142 
 
 Hargiss -v. Kansas City, etc., R. Co. (100 
 
 Mo. 210) 740 
 
 Hargrave v. Cook (Cal.) (41 Pac. Rep. 18) 107 
 
 Hargraves v. Kimberly (26 W. Va. 787) 105 
 
 Harkey v. Cain (Tex.) (6 S. W. Rep. 637) 8 
 Harlow v. Marquette, etc., R. Co. (31 Mich. 
 
 346, 41 Mich. 336) 741 
 
 Harms v. Kranz (111.) (47 N. E. Rep. 746). 521 
 Harper v. Morse (Mo.) (21 S. W. Rep. 
 
 517) 528 
 
 Harrigan v. Conn. R. L. Co. (129 Mass. 
 
 580) 243 
 
 Harrington v. McCarthy (Mass.) (48 N. E. 
 
 Rep. 1287 [1891]) 336 
 
 Harris v. Broiles (Tex.) (22 S. W. Rep. 
 
 421) 555 
 
 v j r >ozier (72 til. App. 542) 343 
 
 v. Elliot (10 Pet. (U. S.) 25) 708 
 
 v. Johnson (Ky.) (44 S. W. Rep. 948 
 
 1898]) 546 
 
 Harrison v. Caswell -(Sup.) (45 N. Y. Supp. 
 
 560) 516 
 
 v. Stipes (Neb.) (51 N. W. Rep. 976 
 
 [1892]) 410 
 
 Harrison County v. Seal (Miss.) (5 So. 
 
 Rep. 622) 703 
 
 Hart v. Evans (8 Pa. St. 13) in 
 
 v. Jamaica Pond Aq. Co. (133 Mass. 
 
 488) 255 
 
 Hartford v. Board (Conn.) (36 Atl. Rep. 
 
 786) 149 
 
 Hartigan v. Hoffman (Wash.) (47 Pac. 
 
 Rep. 217) 546 
 
 Hartman v. Pittsburg I. P. Co. (Pa. Sup.) 
 
 (28 Atl. Rep. 145) 137 
 
 Hartsell v. Coleman (N. C.) (21 S. E. Rep. 
 
 392) 631 
 
 Hartshorn v. Chaddock (Sup. Ct.) (40 N. 
 
 Y. St. Rep. 953) 90,137,194 
 
 Hartung v. Witte (59 Wis.- 285) 499 
 
 Hartwell v. Camman (10 N. J. Eq. 128) 283 
 
 v. Mutual L. I. Co. (50 Hun 497 [1888]) 75 
 
 Harvey v. Walters (L. R. 8 C. P. Cas. 162 
 
 [1872]) 676 
 
 Hass v. Plantz (56 Wis. 105) 499 
 
 Hastings v. McDonough (Sup.) (43 N. Y. 
 
 Supp. 628) 445, 599 
 
 Hatfield v. Workman (W. Va.) (14 S. E. 
 
 Rep. 153) 498 
 
 Hathaway v. Evans (113 Mass. 264) 623 
 
 v. Spooner (9 Pick. 23 [1829]) 617 
 
 Hathorn v. Kelly (29 Atl. Rep. 1108, 86 
 
 Me. 487) 674 
 
 v. Stinson (i Fairf. 238) 421 
 
 Haugen v. Albina L. & W. Co. (Oreg.) 
 
 (28 Pac. Rep. 244) 149 
 
 Haump's App. (120 Pa. St. 211) 62 
 
 Haupt v. Haupt (15 Atl. Rep. 700 [1888]) 625 
 
 Havan v. Emery (33 N. H. 66) 8 
 
 Hayden v. Brown (Ore.) (53 Pac. Rep. 490 
 
 1898]) 485 
 
 v. Long (8 Oreg. 244) . .61, ?i 
 
 Hayes v. Jones (27 Ohio St. 218) 789 
 
 v. Richardson (Md.) (i Gill & J. 366) 741 
 
 v. Waldron (44 N. H. 580). .58, 207, 208, 222 
 Haynes v. Boardman (119 Mass. 414 [1876]) 687 
 
 v. Burlington (38 Vt. 350) 117 
 
 v. Thomas (7 Ind. 38) 705 
 
 Hazeltine v. Case (46 Wis. 391) 82,208 
 
 Hazelton v. Webster (Sup.) (46 N. Y. 
 
 Supp. 922 [1897]) 166 
 
 Hazen v. Boston, etc., R. Co. (Mass.) (2 
 
 Gray 574) 752 
 
 Heacock v. State (N. Y.) (n N. E. Rep. 
 
 638 [1887]) 83,272 
 
 Head v. Chesbrough (13 Ohio Cir. Ct. 
 
 Rep. 354) 406, 431 
 
 Heald v. Yumisko (N. D.) (75 N. W. Rep. 
 
 806 [1898]) 410 
 
 Healy v. Joliet R. Co. (2 111. App. 435).... 234 
 
 Heard v. James (49 Miss. 236) 320 
 
 Heaver v. Morgan (W. Va.) (23 S. E. Rep. 
 
 874) 526 
 
 Hebron G. Rd. Co. i>. Harvey (90 Ind. 192) 172 
 Hedges v. West Shore R. Co. (N. Y. App.) 
 
 (44 N. E. Rep. 691) 121 
 
 Heffeman v. Otsego, W. P. Cp. (Mich.) (43 
 
 N. W. Rep. [1096]) 613 
 
 Hefferberth v. Meyers (N. Y.) (App. Div. 
 
 [1896]) 336 
 
 Heilbron r. Fowler S. Canal Co. (75 Cal. 426) 61 
 v. King's River, etc., Co. (Cal.) (17 
 
 Pac. Rep. 933 [1888]) 105,419 
 
 v. 76 Ld. & Water Co. (Cal.) (30 Pac. 
 
 Rep. 802) 57 
 
 Heinz v. Cramer (Iowa) (51 N. W. Rep. 
 
 173) 497 
 
 Heller v. Cohen (Sup.) (41 N. Y. Supp. 
 
 214) 633 
 
 Helm v. Wilson (76 Cal. 476 [1888]) 494 
 
 Helmer v. Rehm (Neb.) (15 N. W. Rep. 
 
 344) 555 
 
 Heming v. Davis (37 Tex. 183) 71 
 
 Hemphill v. Annis (N. C.) (26 S. E. Rep. 
 
 152) 553 
 
 v. Boston (Mass.) (8 Cush. 195) 706 
 
 Hempstead v. Ball Electric Light Co. (N. 
 
 Y.) (9 App. Div. 48) 816 
 
 Henderson v. Dennis (177 111. 547 [1898]), 
 
 501, 606 
 v. Hatterman (111. Supp.) (34 N. E. 
 
 Rep. 1041) 411 
 
 77. Minneapolis (32 Minn. 319) 186 
 
 Hennefin v. Blake (102 Mass. 297) 528 
 
 Hennessy v. Murdock (Sup.) (17 N. Y. 
 
 Supp. 276) 448, 454, 649 
 
 Henning v. Bennett (Sup.) (18 N. Y. Supp. 
 
 645) 390 
 
 Henry v. Ohio R. R. Co. (W. Va.) (21 S. 
 
 E. Rep. 863) 119, 192 
 
 Herbst v. Merrifield (Mo.) (34 S. W. Rep. 
 
 571) 521 
 
 Herdic v. Young (35 Pa. St. 176) 320 
 
 Herhold et al. v. City of Chicago (6 Am. 
 
 & Eng. Corp. Cases 119) 703 
 
 Herman v. Likens (Tex.) (29 S. W. Rep. 
 
 757) 555 
 
 Herpel v. Malone (56 Mich. 199 [1885])... 611 
 
 Herrick t>. Belknap (27 Vt. 673 [1854]) 477 
 
 v. Hopkins (Me.) (10 Shep. 217) 545 
 
 v. Merritt (Minn.) (33 N. W. Rep.)... 555 
 
 Hershfield v. Rocky Mt. Bell Tel. Co. 
 
 (12 Mon. 102) 813 
 
 Heselton v. Harmon (Me.) (14 Atl. Rep. 
 
 286) 703 
 
 Hess v. Cheney (Ala.) (3 So. Rep. 791 
 
 [1888]) 373,4", 588 
 
 11. Lancaster (Com. PI.) (4 Pa. Dist. 
 
 Rep. 737) 308 
 
 Hestonville, etc., R. Co. v. Phila. (89 Pa. 
 
 St. 210) 754 
 
 Hetfield v. Baum (N. C.) (13 Ired. 394)-.. 237 
 
TABLE OF CASES. 
 
 Xli 
 
 Hetrich v. Deadlier (6 Pa. St. 32) 81 
 
 Hewett v. West. Un. Tel. Co. (D. C.) (4 
 
 Mackey 424) 821 
 
 Heyer v. Lee (40 Mich. 353 [1879]) 
 
 Heyneman v. Blake (19 Cal. 579) 
 
 Hibbard v. Chicago (111.) (50 N. E. Rep. 
 
 256) 718 
 
 Hichok v. Hine (23 Ohio St. 523) 231 
 
 77 
 
 Hickey v. Hazard (3 Mo. App. 480) 
 Hickox v. Chicago, etc., R. Co. (78 Mich. 
 
 SI: 
 
 736 
 
 Hicks v. Ivey (Ga.) (26 S. E. Rep. 68).... 562 
 
 6i5) 
 Tick' 
 Higbee v. Camden, etc., Co. (19 N. J. 
 
 Eq. 276 [1868]) 721 
 
 Higgins v. Barker (42 Cal. 233) 75 
 
 v. Flemington W. .Co. (36 N. J. Eq. 
 
 538) ^ 62 
 
 v Kusterer (41 Mich. 318) 163,164 
 
 v. New York, etc., R. Co. (Sup.) (29 
 
 N. Y. Supp. 563) 90,115 
 
 v. Ragsdale (Cal.) (23 Pac. Rep. 316) 612 
 
 v. Reynolds et al. (31. N. Y. 151 [1865]) 444 
 
 High v. Pancake (W. Va.) (26 S. E. Rep. 
 
 536) 625 
 
 Hilburn v. Harris (Tex.) (29 S. W. Rep. 
 
 923) 523 
 
 Hildreth v. Googins (Me.) (39 Atl. Rep. 
 
 550 [1898]) 7i5 
 
 Hill v. Barnes (11 N. H. 395) 47 
 
 v. Buckley (17 Ves. 401) 590 
 
 v. Cinn., W. & M. Ry. Co. (Ind.) (10 
 
 N. E. Rep. 410 [1887]) 1720 
 
 v. King (8 Cal. 336) 75 
 
 v. Morrey (26 Vt. 178 [1854]) 35 L 352 
 
 v. Newman (5 Cal. 445) 75.77 
 
 Hillman v. Hardwick (Idaho) (51 Pac. 
 
 Rep. 438) 74 
 
 v. White (Ky.) (44 S. W. Rep. in 
 
 [1898]) 522 
 
 Hillory v. Walker (12 Veasey 139) 77 
 
 v. Smith (32 Cal. 166, 27 Cal. 476), 
 
 75, 214, 217, 625, 633 
 
 Himes v. Jarrett (26 S. C. 480) 663 
 
 v. Johnson (61 Cal. 259) 75 
 
 Hinchley v. Nickerson (117 Mass. 213) 81 
 
 Hinckley v. Grouse (125 N. Y. 730) 501 
 
 Hindson v. Marble (Pa. Sup.) (33 Atl. 
 
 Rep. 74) 217 
 
 Hine v. N. Y. El. R. Co. (36 Hun 293 
 
 [1885]) 764 
 
 Hinkle v. Avery (Iowa) (55 N. W. Rep. 
 
 77) 1720 
 
 Hitchcock v. Southern I. & T. Co. (Tenn.) 
 
 (38 S. W. Rep. 588) 365/546,552,601 
 
 Hitchins v. Frostburg (68 Md. 100) . . . . 189, 272 
 
 y. Morrison (72 Me. 331) 518 
 
 Hittinger v. Ames (121 Mass. 539) 165 
 
 Hoadley v. San Francisco (50 Cal. 265) 702 
 
 Hoar v. Goulding (116 Mass. 132 [1874]) 606 
 
 Hoard v. Des Moines (62 Iowa 326) 136 
 
 Hoax v. Seat (26 Mo. 178) 8 
 
 Hoban v. Cable (Mich.) (60 N. W. Rep. 
 
 466) 5540, 633 
 
 Hobart v. Ford (6 Nev. 77) 73.77 
 
 v. Wicks (15 Nev. 418) 75 
 
 Hobbs v. Lowell (Mass.) (19 Pick. 405)...- 706 
 
 v. Payson (85 Me. 498) 555 
 
 Hobein v. Frick (69 Mo. App. 262 [1897]).. 588 
 Hobson v. Philadelphia (24 Atl. Rep. 1048) 451 
 Hocutt v. Wilmington & W. R. Co. (N. 
 
 C.) (32 S. E. Rep. 681 [1889]) 101 
 
 Hodge v. Lehigh Val. R. Co. (C. C.) (56 
 
 Fed. Rep. 195) 85 
 
 Hodges v. Denny (Ala.) (5 So. Rep. 492 
 
 [1889]) 588, 590 
 
 v. Williams (95 N. C. 331) 424 
 
 Hodgins v. Toronto (19 Ont. App. 537) .318,319 
 Hodgkinson v. Ennon (Eng.) (4 B. S. 229), 
 
 207, 216 
 
 -v. Ennor (4 B. & S. 241) 254 
 
 Hoester v. Hemsath (16 Mo. App. 485)... 179 
 Hoffman v. Armstrong (46 Barb. 337). .313, 315 
 v. Buschman (Mich.) (55 N. W. Rep. 
 
 v. Johnson (Md.) (i Bland Ch. 103).. 590 
 
 
 Hoffman v. Port Huron, City of (Mich.) 
 
 (60 N. W. Rep. 831) 492,580,589 
 
 v. Stone (7 Cal. 46) 75 
 
 T v. Tuolumne Co. W. Co. (10 Col. 413). 87 
 
 Hoffstot v. Voigt (Pa.) (23 Atl. Rep. 351). 343 
 Hogg v. ConneUsville Water Co. (Pa. 
 
 Sup.) (31 Atl. Rep. 1010) 
 
 Holden v. Chandler (61 Vt. 291)... 
 
 v. Robinson Mfg. Co. (65 Me. 215)... 233 
 
 Holladay v. Daily (19 Wall 609) 45 
 
 Holland v. Thompson (Tex.) (35 S. E. 
 
 Rep. 19) 467, 572, 578, 583 
 
 Hollenbeck v. Sykes (Colo. Sup.) (29 Pac. 
 
 Rep. 380) 549 
 
 Holler v. Emerson (Cal.) (44 Pac. Rep. 
 
 1073) 577 
 
 Holliday v. Maddox (Kan.) (18 Pac. Rep. 
 
 290 [1888]) 542 
 
 Hollingsworth & Co. v. Foxborough W. 
 
 S. Dist. (Mass.) (42 N. E. Rep. 574).... 275 
 
 v. Walker (Ala.) (13 So. Rep. 6) 529 
 
 Holloway v. Delano (Sup.) (18 N. Y. Supp. 
 
 v. Southmayd (Sup.) (18 
 
 707) 
 Hol 
 
 olmes v. Sapphire Val. Co. (N 
 S. E. Rep. 545) 
 
 449,451,452,714 
 N. Y. Supp. 
 
 ..451,452,714 
 . C.) (28 
 
 631 
 
 v. Straitman (35 Mo. 293 [1864]) ---- 543,546 
 Holsman v. Boiling Spring B. Co. (14 N. 
 
 J. Eq. 335) ..... : ........................ 209,216 
 
 Hoist v. Streitz (16 Neb. 249) ............... 705 
 
 Holston S. & P. Co. v. Campbell (Va.) (16 
 
 S. E. Rep. 274) ........................... 585 
 
 Holton v. Whitney (30 Vt. 410) ............ 518 
 
 Holtzman v. Douglass (18 Sup. Ct. Rep. 
 
 65, 168 U. S. 278) ...................... 521,523 
 
 Home Electric Light & Power Co. v. 
 
 Globe Tissue-paper Co. (Ind. Sup.) (45 
 
 N. E. Rep. iro8) .......................... 84 
 
 Honsee v. Hammond (N. Y.) (39 Barb. 
 
 89) ..................................... Ill, 222 
 
 Hook v. Joyce (Ky.) (22 S. W. Rep. 651). 521 
 Hooker v. Cummings (N. Y.) (20 Johns. 
 
 90) ........................................ 1720 
 
 Hoole v. Attorney-General (22 Ala. 190) ---- 704 
 
 Hoosier Stone Co. v. Malott (Ind.) (29 
 
 N. E. Rep. 412) ............................ 714 
 
 Hooten v. Barnard (137 Mass. 36) .......... 181 
 
 Hopkins Accd. v. Dickinson (9 Cush. 544), 
 
 387, 431 
 
 - v. Butte & M. Com. Co. (Mont.) (33 
 Pac. Rep. 817) ............................. 85 
 
 v. Kent (9 Ohio 13) .................... 423 
 
 Hopper v. Hopper (Pa. Sup.) (23 Atl. Rep. 
 321) ........................................ no 
 
 v. Justice (N. C.) (16 S. E. Rep. 626), 
 
 - v. Hickman (Mo.) (46 S. W. Rep. 973 
 [1898]) ..................................... 626 
 
 Home v. Smith (15 Sup. Ct. Rep. 988)... 410 
 Horton v. Brown (Ind.) (29 N. E. Rep. 
 
 414) ........................................ 497 
 
 Hostetter -v. Los Angeles Terminal Ry. Co. 
 
 (Cal.) (41 Pac. Rep. 330) .......... 580,598,633 
 
 Hottell v. Farmers' Protective Ass'n 
 
 (Colo.) (53 Pac. Rep. 327 [1898]) .......... 648 
 
 Houck v. Yates (82 111. 179) ................ 406 
 
 Hougan v. Milwaukee, etc., R. Co. (35 la. 
 
 558) ........................................ 255 
 
 Houghton v. The C. D. & M. R. Co. (47 
 
 Iowa 370 [1877]) . ..................... .... 374 
 
 Houston v. Houston, etc., R. Co. (84 Tex. 
 
 581) ..................................... 148, 791 
 
 - v. Laffee (46 N. H. 507) ................ 740 
 
 Hovey v. Hobson (53 Me. 451) ............ 42 
 
 Howard v. College (116 Mass. 117) ........ 603 
 
 - v. Ingersol (17 Ala. 780) (13 How. 380, 
 423, 426) .................................... 235 
 
 Howe v. Howe (99 Mass. 98) ................ 42 
 
 Howell v. McCoy (Pa.) (3 Rawle 268),.... 
 
 2l6, 222 
 
 Howe's Cave L. & C. Co. v. Howe's Cave 
 Ass'n (Sup.) (34 N. Y. Supp. 848) ....... 353 
 
 Howsmon v. Trenton W. Co. (Mo. Sup.) 
 (24 S. W. Rep. 784) ........................ 148 
 
xlii 
 
 TABLE OF CASES. 
 
 Hoy v. Sterrett (Pa.) (2 Watts 327, 460)... 326 
 Hoyt v. Cline (N. Y. App.) (31 N. E. Rep. 
 623) ...................................... 58 
 
 - v. Hudson (27 Wis. 656, Dixon, Chief 
 Justice) ............................... 1720, 177 
 
 - v. Jeffers (30 Mich. 181) ................ 830 
 
 - - v. Kennedy (Mass.) (48 N. E. Rep. 
 
 1073 [1898] .............................. 681, 683 
 
 - v. So. N. E. Teleph. Co. (60 Conn. 385) 319 
 Hubbard v. Bell (54 111. 121) .............. 1720 
 
 - - -v, Kansas City, etc., Co. (63 Mo. 68). 735 
 Hudson v. Irwin (50 Cal. 450 [1875]) ...... 549 
 
 Hudson Riv. Teleph. Co. v. Watervliet 
 
 Tpk. Co. (135 N. Y. 393, 409, 410). . .292, 831 
 
 - Vt - (N. Y.) 56 Hun 68; 121 N. Y. 
 397; 61 Hun 141) ...................... 827,830 
 
 Hudson Teleph. Co. v. Jersey City (49 N. 
 J. Law 303) ...................... i ......... 812 
 
 Huff v. Crawford (Tex.) (34 S. W. Rep. 
 
 606) ........................................ 572 
 
 - v. Kentucky Lumber Co. (45 S. W. 
 Rep. 84 [1898]) ............................. 89 
 
 - v. McAuley (53 Pa. St. 206) ........... 663 
 
 Huges v. Austin (Tex.) (33 S. W. Rep. 
 
 607) ........................................ 195 
 
 Hughes v. Graves (59 Vt. 359) ............. 514 
 
 - v. Momence (111.) (45 N. E. Rep. 300) 843 
 
 - v. Providence R. Co. (2 R. I. 508, 512), 
 
 407, 445 
 
 Humbert v. Trinity Church (N. Y.) (24 
 Wend. 604) ................................. 524 
 
 Humphrey v. Boyden (12 Q. B. 139) ...... 323 
 
 Humphries v. Cousins (2 C. P. Div. 239) 272 
 
 - v. Hoffman (33 Ohio 395) .............. 517 
 
 Humphry v. Cooper (183 Pa. St. 432 [1898]) 6n 
 Hungerford v. Redford (29 Wis. 345) ....... 320 
 
 Hunt v. Bay State Iron Co. (97 Mass. 279) 8 
 v. Brown (Md.) (23 Atl. Rep. 1029) ---- 451 
 
 Hunter v. Pelham Mills (S. C.) (29 S. E. 
 
 Rep. 727 [1898]) ................... 114,115,132 
 
 - v. Lowell Gas Co. (Mass.) (8 Allen 
 169) ........................................ 264 
 
 - - v. Peake (i Johns. Eng. 705; s.c., 29 
 
 L. G. Ch. 785) ............................. 326 
 
 - v. Smith (9 Kan. 137) .................. 75 2 
 
 - v. Taylor (22 Vt. 536) .................. 312 
 
 Hurdle v. Stallings (N. C.) (13 S. E. Rep. 
 
 720 [1891]) ................................. 479 
 
 Hurdman v. N. E. R. Co. (3 C. P. Div. 
 
 168) ........................................ 272 
 
 Hurlbutt v. Butenop (27 Cal. 57) .......... 573 
 
 Hurley v. Brown (98 Mass. 545 [1868]) . .551, 553 
 Huse v. Glover (19 U. S. 543) ........ ..... 245 
 
 (Mich.) 
 
 Husted v. Willoughby 
 
 .) (75 N. W. 
 
 Rep. 279 [1898]) 492 
 
 Huston v. Bybee (Oreg.) (20 Pac. Rep. 51 
 
 1889]) 74. 107 
 
 v. Leach (53 Cal. 262) 261 
 
 Huyck v. Andrews (N. Y.) (20 N. E. Rep. 
 
 581 [1889]) 712 
 
 I. 
 
 Idaho Land Co. v. Parsons (Idaho) (31 
 
 Pac. Rep. 791) 502, 503, 504 
 
 Illinois, etc., Canal Co. v. Harris (n 111. 
 
 554) 406 
 
 Illinois C. R. Co. v. Illinois (146 U. S. 387) 242 
 
 v. O'Connor (39 N. E. Rep. 563) 535 
 
 -v. State (13 S. Ct. no) 382,421,424 
 
 v. Wakefield (173 HI- 564) 685 
 
 v. Wilbourne (Miss.) (21 So. Rep. i), 
 
 115, 116 
 111. 'R. Pac. Co. v. Peoria Bdg. Assn. (38 
 
 111. 467) 240 
 
 Illinois Trust & Savings Bank v. Arkansas 
 
 City (C. C. A.) (76 Fed. Rep. 271) 148 
 
 Imber v. Springfield (55 Mo. 119) 105 
 
 Indiana, B. & W. Ry. Co. v. Eberle (Ind.) 
 
 (ii N.' E. Rep. 467 [1887]) 
 
 Indiana Cent. Canal Co. v. The State (53 
 
 Ind. 575 [1876]) 
 
 Indianapolis v. Huffer 
 
 (30 Ind. 235), 
 
 441 
 
 554 
 
 Indianapolis St. R. Co. v. Citizens St. R. 
 
 Co. (127 Ind. 369) 784 
 
 Ind. Water Co. v. Amer. S. Co. (53 Fed. 
 
 Rep. 974, 57 Fed. Rep. 1000), 
 
 51, 53, 209, 210, 2l6, 222 
 
 Indianapolis Water Works v. Burkhart (41 
 
 Ind. 364) 167, 169 
 
 Indians, etc., R. Co. v. Patchette (59 111. 
 
 App. 251) 52 
 
 Ingalls v. Hart Hardware Co. (Ky.) (20 S. 
 
 W. Rep. 387) 390 
 
 Ingals v. Plamondon (75 111. 218 '[1874]) ... 649 
 Ingraham v. Camden W. Co. (82 Me. 335) 62 
 
 v. Chicago, etc., Co. (34 la. 249) 241 
 
 v. Wilkinson (Mass.) (4 Pick. 268) . .406, 431 
 
 Inhabitants of Township of Franklin v. 
 
 Nutley Water Co. (N. J. Ch.) (32 Atl. 
 
 Rep. 381) 843 
 
 Institute v. How (27 Mo. 211) 703 
 
 International, etc., R. Co. v. Pope (62 
 
 Tex. 313).... 751 
 
 Iowa v. Illinois (13 Sup. Ct. Rep. 239) 409 
 
 Irvine v. Irvine (9 Wall. (U. S.) 626).... 42 
 
 v. McKeon (23 Cal. 475) 44 
 
 Irwin v. Brown (Tenn.) (12 S. W. Rep. 340 
 
 [1889]) 234 
 
 v. Dixon (9 How. (U. S.) 10) 704 
 
 v. Gt. So. Teleph. Co. (37 La. Ann. 
 
 63) 812 
 
 v. Janesville Cot. Mills (Wis.) (60 N. 
 
 W. Rep. 786) 85 
 
 v. Phillips (5 Cal. 140) 75 
 
 v. Strait (18 Nev. 436) 75 
 
 v. Towne (42 Cal. 329) 603 
 
 Iselin v. Starin (N. Y. App.) (39 N. E. 
 
 Rep. 438) 683 
 
 Iverson v. Swan (Mass.) (48 N. E. Rep. 
 
 282) 497, 498, 587 
 
 Ivory v. Burns (56 Pa. St. 300) ... 46 
 
 Ivy v. Yancey (Mo.) (31 
 
 Rep. 937) 516 
 
 Jackson v. Babcock (N. Y.) (4 Johns. 418) 668 
 
 v. Camp (i Cowen 605) 571 
 
 v. Clark (7 Johns. R. 217) 547 
 
 v. Douglass (8 111. 367) 501 
 
 v. Freer (17 Johns. 29) 502 
 
 v. Gager (5 Cowen 383) 469 
 
 v. Lambert (121 Pa. St. 187) 575, 628 
 
 v. McConnell (19 Wend. 174) 614 
 
 v. Moore (6 Conn. 706) 615 
 
 v. Ogden (7 Johns. 238) 502 
 
 v. Osborn (2 Wend. (N. Y.) 555) 47 
 
 v. Perrine (35 N. J. Law 137) 491 
 
 v. Reeves (3 N. Y. 293)... 
 
 603 
 527 
 532 
 
 v. Stoetzel (87 Pa, St. 302) 
 
 v. Vermilyea (6 c,owen 677) 
 
 v. Wendell (5 Wend. 142) 
 
 v. Woodruff (Woodworth, J., in i 
 
 Cowen 276) 524, 526 
 
 Jackson & Co. v. Ambler (14 Johns. 96 
 
 [1817]) 474, 485 
 
 Jackson Milling Co. v. Chandos (Wis.) (5 2 
 
 N. W. Rep. 759) 75 
 
 Jacksonville v. Lambert (62 111. 519) 215 
 
 Jacob v. Lorenz (Cal.) (33 Pac. Rep. 119) 77 
 
 Jacobs v. Allard (42 Vt. 303) 208,222 
 
 "Neb.") (6f> N. 
 
 178 
 v. Crothers (Md.) (40 
 
 Atl. Rep. 261 [1898]) 381,388,516 
 
 . 
 Jacobson v.- Van Boening (Neb.) (66 N. 
 
 W. Rep. 993) 
 Jacob Tome Inst. 
 
 Jaff. Ry. Co. v. Ogler (82 Ind. 394) ........ 
 
 James v. Carter (Ky.) (29 S. W. Rep. 19) 89 
 
 - v. Kansas City, etc., R. Co. (69 Mo. 
 
 - P v.' Lewis" ('S'O"N."Y!'SUPP. 230 [1898])... 619 
 
 - v. Williams (31 Cal. 211) ................ 75 
 
 Janesville Cot. M. v. Ford (Wis.) (52 N. 
 
 W. Rep. 764) .............................. 75 
 
 Janeway v. Barrett (38 Vt. 316) ............ 421 
 
 Jarvis v. Lynch (Sup.) (36 N. Y. Supp. 
 
 220) ........................................ 376 
 
TABLE OF CASES. 
 
 xliii 
 
 Jay v. Michael (Md.) (35 Atl. Rep 
 Jaynes v. Omaha St. Ry. 
 N. W. Rep. 67) .................... 798,814 
 
 Jean v. Penna. Co. (Ind. App.) (36 N. E. 
 
 
 
 22).... 555 
 Co. (Neb.) (74 
 
 ,816 
 
 Rep. 159) ................................ 136, 173 
 
 Jeanette Borough v. Eschallier (28 Pittsb. 
 
 Leg. J. (N. S.) 383 [1898]) 
 
 Jeffers (107 N. Y. 
 Jefferson I. Wks. v. Gill Bros. (14 W. L. 
 
 651) 
 
 205 
 1720 
 
 Bull. 2) 
 Jeffries v. E. Omaha Ld. Co. (10 Sup. Ct. 
 
 Rep. 518) ........................... 378, 599, 613 
 
 Jencks v. Miller (Sup.) (40 N. Y. Supp. 
 
 1088) ....................................... 242 
 
 Jenkins v. Fowler (24 Pa. St. 308) ......... 271 
 
 v. Sykes (19 Fla. 148) .................. 669 
 
 v. Trager (40 Fed. Rep. 726). .495, 500, 573 
 Jenks V. Kenny (Super.) (19 N. Y. Supp. 
 
 243, 28 Abb. N. C. 154) ................... 324 
 
 Jennison r. Kirk (98 U. S. 453> ............ 73, / 5 
 
 Jensen v. Hunter (Cal.) (41 Pac. Rep. 14) 662 
 Jersey City Gas Co. v. Dwight (29 N. J. 
 
 Eq. 242) ................................ 841, 846 
 
 Jester v. Francis (Tex.) (31 S. W. Rep. 
 
 245) ........................................ 516 
 
 Johnson v. Anderson (18 Me. 76) ........ 447,449 
 
 - v. Chicago, etc., Ry. Co. (Wis.) (50 N. 
 W. Rep. 771) .............................. 177 
 
 - v. Davidson (111.) (44 N. E. Rep. 499) 526 
 
 - v. Owensboro, etc., Ry. Co. (Ky.) (36 
 
 S. W. Rep. 8) ... ........................... 68- 
 
 - v. Rayner (Mass.) (6 Gray 107) ........ 261 
 
 - v. Scott (n Mich. 232) ................ 545 
 
 - v. Skillman ^29 Minn. 95) ............. 662 
 
 . E. 
 
 v. Simerly (Ga.) (16 S. 
 
 Rep. 931).. 579 
 
 v. Sirret (Sup.) (31 N. Y. Supp. 917).. 5540 
 
 v. Williams (Sup.) (22 N. Y. Supp 
 
 247) 550 
 
 Johnson Chair Co. v. Agresto (73 111. App. 
 
 384 [1898]) "". 306 
 
 Johnston v. Jones (i Black (U. S.) 209), 
 
 51, 383, 409 
 Johnston Cheese Mfg. Co. v. Veghte (69 N. 
 
 Y. 16) U... .......... 260 
 
 Joliet, etc., R. Co. v. Healy (94 111. 416).. 1720 
 Jollife v. Kite (Va.) (i Call 301) 590 
 
 Y. 16) U.... T :.... 260 
 
 ly (94 111. 4i6).. ] 
 
 Jones v. Adams (19 Nev. 78). 73, 75, 719 
 
 V, Brinkley (N. C.) (29 S. E. Rep. 221 
 [1898]) 546 
 
 v. De Coursey (Sup.) (42 N. Y. Supp. 
 
 57?) 138 
 
 v. Dewey (17 N. H. 596) 464 
 
 v. Hughes (Pa.) (16 Atl. Rep. 849 
 
 [1889]) 514 
 
 v. Johnson (Tex.) (25 S. W. Rep. 650) 234 
 
 v. Johnston (18 How. (U. S.) 209) 51 
 
 v. Madison Co. (Miss.) (8 So. Rep. 
 
 87) 516 
 
 v. Smith (64 N. Y. 180, 73 N. Y. 205 
 
 [1876]) 497, 502, 519, 615 
 
 v. Soulard (24 How. (U. S.) 41) 431 
 
 v. Van Bochove (Mich.) (61 N. W. 
 
 Rep. 342) .650, 732 
 
 v. Webster W. Co. (85 Me. 210) 614 
 
 Joplin Min. Co. v. Joplin (Mo. Sup.) (27 
 
 S. W. Rep. 406) 211,544 
 
 Joplin & W. Ry. Co. v. Kansas City, etc., 
 
 Ry. Co. (Mo.) (37 S. W. Rep. 540) 751 
 
 Jordan v. Benwood (W. Va.) (26 S. E. 
 
 Rep. 266) 187, 190, 721 
 
 v. Chenoa (111. Sup.) (47 N. E. Rep. 
 
 191) 706 
 
 v. Kraft (Neb.) (51 N. W. Rep. 286).. 343 
 
 v. Lang (22 S. C. 159 [1884]) 678 
 
 Joseph v. Wild (Ind. Sup.) (45 N. E. Rep. 
 
 467) 661, 666 
 
 Joyce v. Williams (26 Mich. 332).. 493 
 
 Judkins v. Elliott (Cal.) (12 Pac. Rep. 116 
 
 [887]) no 
 
 Judson v. Duffy (Mich.) (55 N. W. Rep. 
 
 837) 521 
 
 v. Sierra (22 Tex. 365) 45 
 
 Julian v. Woodsmall (82 Ind. 568) 166, 731 
 
 Junction R. Co. v. Boyd (8 Phila. (Pa.) 
 
 224) 732 
 
 Jungblum v. Minneapolis, N. W. & S. W. 
 
 R Co. (72 N. W. Rep.'97i) ..... 120 
 
 Junkans v. Bergm (67 Cal. 267) 7 <t 
 
 Jutte v. Hughes (67 N. Y. 267) 274 
 
 K. 
 
 Kahl v. Schmidt (Iowa) (78 N. W. Rep. 
 
 204 [1899]) S04 
 
 Toting (W. Va.) (24 S. E. Rep. 
 
 V 
 
 Kam v. 
 
 Kaler v. Campbell (13 Oreg. 596)... ye 
 
 Kanaba v. Levelle (Super.) (23 N. Y. Supp. 
 
 818) 34! 
 
 Kanawha, G. J. & E. R. Co. v. Glen Jean, 
 
 L. L. & D. W. R. Co. (W. Va.) (30 S. 
 
 E. Rep. 86 [1898]) 536 7Si 
 
 Kane v. New York El. R. (125 New York " 
 
 186) 781 
 
 Kansas City Inv. Co. v. Fulton (Kansas 
 
 App (46 Pac. Rep. 188) 516 
 
 v. Swope (79 Mo. 446) 172 
 
 Kashman v. Parsons (Conn.) (39 Atl. Rep. 
 
 179 [1898]) :. 581 
 
 Kaskaskia, Prest. of, v. McClure (111.) (47 
 
 N. E. Rep. 72) 431 
 
 Katz v. Kaiser (10 App. 137, 41 N. Y. Supp. 
 
 Kaukauna W. P. Co.' vV Green Bay 'Co.' (12 
 
 Sup. Ct. Rep. 173) 401 
 
 Kay v. Kirk (76 Md. 41) (24 Atl. Rep. 326) 166 
 Kean v. Roby (Ind. Sup.) (42 N. E. Rep. 
 
 1011) 421 
 
 Keating v. Cincinnati (38 Ohio St. 141) 334 
 
 v. Springer (111.) (34 N. E. Rep. 805).. 341 
 Keener v. Union Pac. R. Co. (31 Fed. Rep. 
 
 128) 731 
 
 Keeney v. Carillo (2 N. M. 480) 75 
 
 Keer v. Hitt (75 111. 51) 499 
 
 Kehrer v. Richmond (Va.) (22 The Reptr. 
 
 219 [1886]) 186 
 
 Kehy v. Snyder (114 111. 313) 383 
 
 Keir v. Peterson (41 Pa. St. 362) 281 
 
 Keith v. Brocton (136 Mass. 119) 186 
 
 v. Reynolds (3 Greenl. 393) 572 
 
 v. Ridge (Mo.) (47 S. W. Rep. 904 
 [1898]) 343 
 
 Keithsburg v. Simpson (70 111. App. 467), 
 
 184, 194 
 Keller v. Fink (Cal.) (37 Pac. Rep. 411)... 84 
 
 v. Masser (Ohio) (Tap. 43) 352 
 
 Kelley v. Natoma Water Co. (6 Cal. 105).. 75 
 
 v. New York, City of (Sup.) (27 N. Y. 
 
 Supp. 164) 207, 212 
 
 v. Ohio Oil Co. (57 Ohio St. 317 
 
 [1897]) 281, 282 
 
 Kellinger v. 42d St. R. Co. (50 New York 
 
 206) 781 
 
 Kellog v. Hastings (70 111. 598 [1873]) 552 
 
 v. Smith (Mass.) (7 Cush. 375) . .491, 496, 497 
 
 Kellogg v. Malin (50 Mo. 496) 732 
 
 v. New Britain (62 Conn. 232) 204,211 
 
 Kelly v. Dunning (39 N. J. Eq. 482) 1720 
 
 v. Lett (N. C.) (13 Ired. 50) 84 
 
 v. Taylor (La.) (10 So. Rep. 255) 337 
 
 Kelsey v. Board of Fire & Water Comm'rs 
 
 of City of Marquette (Mich.) (71 N. W. 
 
 Rep. 589) 150 
 
 v. King (N. Y.) (32 Barb. 410, 33 How. 
 
 Pr. 39) 703, 841 
 
 Kelso v. Steiger (Md.) (24 Atl. Rep. 18)... 628 
 Kemper v. Collins (n S. W. Rep. 245 
 
 [1889]) 707 
 
 Kempman v. Heintz (Tex.) (24 S. W. Rep. 
 
 329) 467 
 
 Kendall v. Green (N. H.) (42 Atl. Rep. 178 
 
 [1894]) 605 
 
 Kendrick v. Latham (Fla.) (6 So. Rep. 
 
 871) 524, 687 
 
 Kennedy v. Boykin (S. C.) (14 S. E. Rep. 
 
 809) 589 
 
 v. Cumberland (Md.) (9 Atl. Rep. 234 
 
 [1886]) 706 
 
xliv 
 
 TABLE OS CASES. 
 
 Kennedy v. Erdman (Pa.) (24 Atl. Rep. 643) 501 
 
 v. Farley (Sup.) (31 N. Y. Supp. 274) 467 
 
 v. Jones (n Ala. 63) 704,705 
 
 Kennison v. Beverly (146 Mass. 467) 272 
 
 Kensit v. Grand E. R. Co. (Eng.) (27 Ch. 
 
 Div. 122) 61 
 
 Kent v. Taylor (N. H.) (13 Atl. Rep. 419 
 
 [1888]) 406 
 
 v. Worthing (L. R. 10 Q. B. Div. 118) 145 
 
 Kentucky & I. Bridge Co. v. Kreiger (Ky.) 
 
 (19 S. VV. Rep. 733) 756 
 
 Kenyon r. Heart ,(6 B - & M. 249) 352 
 
 v. Hookway (Sup.) (41 N. Y. Sup. 230, 
 
 17 Misc. Rep. 452) 714 
 
 Keonings v. Jung (Wis.) (40 N. W. Rep. 
 
 80 1 [1889]) 527 
 
 Kerns v. Dean (Cal.) (19 Pac. Rep. 817 
 
 [1889]) 516 
 
 Kerr v. Joslin (Sup.) (20 N. Y. Supp. 929) 116 
 
 Kertz v. Hibner (55 111. 514) 552 
 
 Ketchum v. Newman (116 N. Y. 422) 324 
 
 Keuchler v. Wilson (Tex.) (18 S. W. Rep. 
 
 317) 617 
 
 Kidd v. Laird (15 Cal. 161) 75,77 
 
 Kieffer if. Imhof (26 Pa. St. 438) 325 
 
 Kile v. Yellowhead, Town of (80 111. 208 
 
 (1875) 551, 561 
 
 Kilgour v. Wolf (C. P.) (4 Ohio N. P. 183, 
 
 6 Ohio Dec. 343)... > 324,326 
 
 Kimbal v. Gearhart (12 Cal. 27) 75 
 
 King v. Brigham (Oreg.) (31 Pac. Rep. 601) 504 
 
 v. Poor Laws Comm'rs (6 Ad. & El. 7) 812 
 
 v. Smith (Rice 10) 687 
 
 v. Wight (Mass.) (29 N. E. Rep. 644) 343 
 
 Kingsbury v. Flowers (65 Ala. 479) 267 
 
 Kings Co. Fire Ins. Co. v. Stevens (87 N. 
 
 Y. 287) 446, 451 
 
 Kingsley v. Gouldsborough Ld. Imp. Co. 
 
 (86 Me. 279) ' 715 
 
 v. Hillside C. & I. Co. (Pa.) (23 Atl. 
 
 Rep. 259) 527 
 
 Kinnaird v. Standard Oil Co. (89 Ky. 469), 
 
 264, 267 
 
 Kipp v. Norton (12 Wend. 127) 501 
 
 Kirby v. Fitzpatrick (Pa. Sup.) (32 Atl. 
 
 Rep. 53) 343 
 
 Kirchner v. Miller (39 N. J. Eq. 355) 499 
 
 Kirk v. Bartholomew (Idaho) (29 Pac. Rep. 
 
 40, 42) 75 
 
 Kirkham v. Sharp (i Whart. 323) 578 
 
 Kirkwood v. Finegan (Mich.) (55 N. W. 
 
 Rep. 457) 341 
 
 Kirwan v. Murphy (U. S. C. C. Minn.) (85 
 
 Fed. Rep. 275) 421 
 
 Kleinschmidt v. Greiser (Mont.) (37 Pac. 
 
 Rep. 5) 75 
 
 Klenk v. Town of Walnut Lake (Minn.) 
 
 (53 N. W. Rep. 703) 703 
 
 Klinkener v. School District (i Jones (Pa.) 
 
 144) .- 703 
 
 Kneeland v. Van Valkenberg (46 Wis. 434) . 449 
 Knight v. Albemarle, etc., R. Co. (in N. 
 
 C. 80) 114, 134 
 
 v. Elliott (57 Mo. 317 [1874]) 577,597 
 
 v. Heaton (22 Vt. 480) 707 
 
 v. Wilder (2 Cush. 202) 387 
 
 Knights of P. v. Leadbeter (Pa.) (39 W. N. 
 
 Cas. 188) ; . 107 
 
 Knippa v. Umlang (Tex. Civ. App.) (27 
 
 S. W. Rep. 915) 579,597 
 
 Knoll v. Light (76 Pa. St. 268) 90 
 
 Knowles v. Bean (87 Me. 331) 555 
 
 v. Nichols (2 R. I. 198) 703 
 
 v. Toothaker (58 Me. 172) 499,57* 
 
 Knowlton v. Johnson (37 Mich. 47) 8 
 
 Knox v. Clark (123 Mass. 216 [1877]) 628 
 
 Knudson v. Omanson (Utah) (37 Pac. 
 
 Rep. 250) 421,424,499 
 
 Koch v. Del., L. & W. R. Co. (N. J.) (24 
 
 Atl. Rep. 442) 113, "4, 131. i3 2 . T 37 
 
 Kock v. Dunkel 1,90 Pa. St. 264 (1879]). .572, 583 
 Kohler v. Smith (3 Super. Ct. (Pa.) 176, 
 
 39 W. N. C. 359) 7*7 
 
 Koon v. Hollingsworth (97 111. 52) 471 
 
 Koons v. McNamee (6 Pa. Super. Ct. 445). 681 
 
 Krall v. United States (C. C. A.) (79 Fed. 
 
 Rep. 241) 
 
 Kranz v. Baltimore (64 Md. 491) 
 
 Kron i'. Daugherty (9 Pa. Super. Ct. 163 
 
 [1899]) 
 
 Kruegel v. Nitschmann (Tex. Civ. App.) 
 
 (40 S. W. Rep. 68) 
 
 Kuechler v. Wilson (Tex. Sup.) (18 S. W. 
 
 Rep. 317) 577 } 
 
 Kupman v. Blodgett (Mich.) (14 N. W. 
 
 Rep. 109) 
 
 Kurts v. Hibner (55 111. 514) 
 
 Kurtz v. Hoke (Pa.) (33 Atl. Rep. 540)... 
 Kurz v. Miller (Wis.) (62 N. W. Rep. 182) 
 Kyle v. Logan (87 111. 67) 
 
 74 
 
 212. 
 62O 
 
 715 
 
 583 
 
 242 
 
 53 
 
 502 
 704 
 
 Lacustrine Fer. Co. v. L. G. & Fer. Co. 
 
 (82 N. Y. 476) 8 
 
 Ladd v. Flynn (Mich.) (51 N. W. Rep. 
 
 203) 341 
 
 v. Foster (31 Fed. Rep. 827) 242 
 
 v. Philadelphia (77 Pa. St. 485) 334 
 
 Lake v. Tolles (8 Nev. 285) 58 
 
 Lake Erie & W. R. Co. v. Young (Ind. 
 
 Sup.) (35 N. E. Rep. 177) 1:8 
 
 v. Whitham (111.) (40 N. E. Rep. 1014) 701 
 
 Lake Shore & M. S. R. R. v. Platt (Ohio 
 
 Sup.) (41 N. E. Rep. 243) 406 
 
 Lake Sup. Ld. Co. v. Emerson (38 Minn. 
 
 406) 51 
 
 Lally v. Rossman (Wis.) (51 N. W. Rep. 
 
 1 132) 421 
 
 Lamb v. Reclamation Dist. (73 Cal. 125).. 136 
 
 v. Richets (n Ohio 311) 423 
 
 Lambert v. Alcorn (111. Sup.) (33 N. E. 
 
 Rep. 53) 173, 178 
 
 v. Dessey (Ld. Raym. 442, 467) 316 
 
 Lamoreaux r. Creveling (Mich.) (61 N. 
 
 W. Rep. 783).-, ::_-. 494 
 
 v. Kei 
 
 Lampe 
 
 Kennedy (49 Wis. 601 [1880]), 
 
 Lampman v. Van Alstyne (Wis.) (69 N. W. 
 
 Rep. 171) 582 
 
 Lamprey v. Metcalf (Minn.) (53 N. W. 
 
 Rep. 1139) 414, 421 
 
 v. State (52 Minn. 181) 421 
 
 Lancaster v. Richardson (N. Y.) (4 Lans. 
 
 136) 319 
 
 Land Co. v. Saunders (103 U. S. 316) 576 
 
 Landers v. Town of Whitefield (111. Sup.) 
 
 (39 N. E. Rep. 656) 683 
 
 Lang v. Salliotte (Mich.) (44 N. W. Rep. 
 
 938) 462 
 
 Langdell's Eq. Pleading (sees. 119-127) 511 
 
 Langdon v. Templeton (Vt.) (28 Atl. Rep. 
 
 866) 523 
 
 Langerman v. Nichols (Tex.) (32 S. W. 
 
 Rep. 124) 583 
 
 Langley v. Gallipolis (2 Ohio St.) 702 
 
 Lankin v. Terwilliger (Oreg.) (29 Pac. Rep. 
 
 268) 582, 715 
 
 Lantry v. Parker (Neb.) (55 N. W. Rep. 
 
 962) 521, 528 
 
 v. Wolff (Neb.) (68 N. W. Rep. 4 94) 533 
 Lapp v. Guttenhurst (44 S. W. Rep. 964), 
 
 328, 332 
 Larimer County Ditch Co. v. Zimmerman 
 
 (Colo. App. (34 Pac. Rep. mi) 88 
 
 Larimer, etc., St. R. Co. v. Larimer St. R. 
 
 Co. (137 Pa. St. 533) 786 
 
 Larimer R. Co. v. People ex rel. Luthe (8 
 
 Colo. 614) 75 
 
 Larimer & W. R. Co. v. Water & S. Co. 
 Larned v. Tangeman (65 Cal. 334) 71 
 
 (Colo. App.) (42 Pac. Rep. 1020) 108 
 
 Larsen v. Peterson (N. J. Ch.) (30 Atl. 
 
 Rep. 1094) 7*9 
 
 Larson v. Metropolitan St. Ry. Co. (Mo. 
 
 Sup.) (19 S. W. Rep. 416) 333 
 
 Lasala v. Holbrook (N. Y.) (4 Paige 169), 
 
 322, 323, 325, 327 
 
TABLE OF CASES. 
 
 xlv 
 
 Last Chance Min. Co. v. Bunker Hill Co. 
 
 (C. C. Idaho) (49 Fed. Rep. 430) 76 
 
 Lathrop v. Eisner (Mich.) (53 N. W. Rep. 
 
 791) 650 
 
 Latrobe v. Western Tel. Co. (74 Md. 232).. 818 
 Lawrence v. Lawrence (Oreg.) (12 Pac. 
 
 Rep. 186) 516 
 
 v. Tenant (N. H.) (15 Atl. Rep. 543 
 
 [1888]) 620 
 
 Layton v. N. Y. & T. Land Co. (Tex.) (29 
 
 S. W. Rep. 1 120) 573 
 
 Leake v. Caffey (Miss.) (19 So. Rep. 716) 555 
 Learned v. Castle (78 Cal. 454) 101 
 
 v. Talmadge (26 Barb. (N. Y.) 444) .. 516 
 Leavenworth v. Prospect R. W. Co. (Com. 
 
 PI.) (8 Kulp. 310) no 
 
 Leavenworth Lodge v. Byers (Kan.) (38 
 
 Pac. Rep. 261) 327 
 
 Lebeaume v. Poctlington (21 Mo. 36) 379 
 
 Lecomte v. Toudouze (Tex.) (17 S. W. 
 
 Rep. 1047) 497, 498 
 
 Lee v. Lake (14 Mich. 12) 704 
 
 v. McLeod (12 Nev. 280) 662 
 
 Leeper y. Baker (68 Mo. 400, 407) 521 
 
 Leffler y. Burlington (18 Iowa 361) 705 
 
 Lehigh C. & W. Co. v. Scranton G. & W. 
 
 Co. (Com. PI.) (6 Pa. Dist. Rep. 291). .57, 62 
 Lehigh V. Ry. Co. v. McFarlan (43 N. J. 
 
 Law 605 [1875]) 674,676,678 
 
 Leidlein v. Meyer (Mich.) (55 N. W. Rep. 
 
 367) 107, 185 
 
 Leigh v. Jack (Eng.) (3 Ex. Div. 264). .453, 454 
 
 Leigh Co. v. Ind. D. Co. (8 Cal. 323) 74 
 
 Leland v. Portland (2 Qreg. 46) 704 
 
 Lembeck v. Nye (47 Ohio St. 336) 421,423 
 
 Lemrnon v. Hartrook (80 Mo. 13) 499 
 
 Lenning's Ex'rs 'y. White (Va.) (20 S. E. 
 
 Rep. 831) 554 
 
 Lente v. Clark (Fla.) (i So. Rep. 149 
 
 [1887]) 553 
 
 Leon & H. Blum Land Co. v. Dunlap 
 
 (Tex. Civ. App.) (23 S. W. Rep. 473)---- 5QO 
 Leonard v. Detroit (Mich.) (66 N. W. Rep. 
 
 488) 683 
 
 v. Shatzer (Mont.) (28 Pac. Rep. 457), 
 
 no, 254 
 Lepreel v. Kleinschmidt (N. Y.) (19 N. 
 
 E. Rep. 812 [1889]) 336 
 
 Lerned y. Morrill (2 N. H. 197) 499 
 
 Lessee y. Caruthers (3 Yeates 527 [1803]).. 628 
 
 Letts v. Kessler (Ohio) (42 
 765) 
 
 34i 
 
 Levaroni v. Miller (34 Cal. 231) 75 
 
 Levis v. Newton (C. C. S. D. Iowa) (75 
 
 Fed. Rep. 884) 816 
 
 Levy y. Samuel (Super.) (23 N. Y. Supp. 
 
 825) 308, 341 
 
 v. Verga (25 Neb. 764) 517 
 
 Lewis v. Johnson (D. C.) (76 Fed. Rep. 
 
 476) 241 
 
 v. Lewis (4 Oregon 177) 573 
 
 v. Prien (Wis.) (73 N. W. Rep. 654 
 
 1897]) -. . 631 
 
 v. Roper L. Co. (N. C.) (18 S. E. Rep. 
 
 52) 625 
 
 v. Springfield W. Co. (Pa. Sup.) (35 
 
 Atl. Rep. 187) 58 
 
 Lewiston v. Booth (Idaho) (34 Pac. Rep. 
 
 809) 442 
 
 Light H. & W. Co. y. Jackson (Miss.) 
 
 (19 So. Rep. 771) 148 
 
 Lillywhite v. Trimmer (16 L. T. N. S. 
 
 318) 207 
 
 Lincoln v. Commonwealth (164 Mass. 350) 334 
 
 v. Davis (53 Mich. 375) 421 
 
 v. Wilder (29 Me. 169) 571 
 
 Lincoln St. Ry. Co. v. Adams (Neb.) (60 
 
 N. W. .Rep. 83) 178 
 
 Lind v. San Luis Obispo (Cal.) (42 Pac. 
 
 Rep. 437) 209 
 
 Linen v. Maxwell (N. H.) (40 Atl. Rep. 
 
 184 [1803]) 521 
 
 Lingwood v. Stowmarket Co. (Eng.) (i Eq. 
 
 77, 336) 206, 216 
 
 
 Linnartz v. McCulloch (Tex.) (27 S. W. 
 
 Rep. 279) ................................... 559 
 
 Lipscomb y. Underwood (Tex.) (27 S. 
 
 W. Rep. 155) ............................... 5 8a 
 
 Litchfield v. Scituate (136 Mass. 39, 48 
 
 - v. Sewell (la.) (66 N. W. Rep. 104).... 530- 
 
 - y. Southworth (67 111. App. 398 [1896]) 215 
 
 y. Whitenack (78 111. App. 364) ---- 212,223 
 
 Little -v. Newton (9 Dowl. 437) ............ 475 
 
 Littlefield v. Boston & A. R. Co. (15 N. E. ' 
 
 Rep. 648 (Sup. Ct. Mass.) [1888]) ....... 685 
 
 v. Littlefield (28 Me. 184) ............... 373 
 
 Little Schuylkill Nav. Co. v. Richards (57 
 
 Pa. St. 142) ............... ................. 214 
 
 Livingston v. Pippin (31 Ala. 542) ......... 142: 
 
 Llano, City of, v. County of Llano (5 Tex. 
 
 Civ. App. 133) ............................. 205, 
 
 Lobdell v. Simpson (2 Nev. 274) .......... 71, 7c. 
 
 Lobit v. McClave (Tex.) (28 S. W. Rep. 
 
 726) .................................... 588, 593 
 
 Lochte y. Austin (69 Miss. 271) ............ 633- 
 
 Locks and Canals y. Lowell (Mass.) (7 
 
 Gray 223) ................................... 205, 
 
 Lockie v. Mut. Un. Tel. Co. (103 111. 401) 825 
 Lockwood v. N. Y. & N. H. R. R. Co. (37 
 
 Conn. 387 [1870]) ....................... 381,382 
 
 Lockwood Co. v. Lawrence (77 Me. 297 
 
 [1885]) .............................. 207, 214, 222 
 
 Lode v. Shepherd (2 Strange 1004 [1735]), 
 
 701, 703 
 Lodge y. Barnett (46 Pa. St. 480) .......... 573, 
 
 v. Lee (6 Cranch 237) .................. 572 
 
 Logan v. Driscoll (19 Cal. 623) ............. 75 
 
 V. Evans (Ky.) (29 S. W. Rep. 636)... 573: 
 Logansport v. Uhl (99 Ind. 531) ........... 143 
 
 Lohr v. Met. Ct. R. Co. (New York) (10 
 
 N. E. Rep. 528 [1887]) .................... 794. 
 
 London & San Francisco Bank v. City of 
 
 Oakland (U. S. C. C.) (86 Fed. Rep. 30 
 
 [1898]) .................................. 682, 716 
 
 Long v. Duluth (Minn.) (51 N. W. Rep. 
 
 913) ........................................ 147 
 
 v. Hall (Tenn.) (46 S. W. Rep. 343 
 [1898]) ..................................... 516- 
 
 v. Mayberry (Tenn.) (36 S. W. Rep. 
 1040) ....................................... 712 
 
 Long Island Water-supply Co. v. City of 
 Brooklyn (17 Supp. Ct. Rep. 718) ........ 147 
 
 Longworth v. City of Cincinnati (Ohio) (29 
 N. E. Rep, 274) ........................... 703. 
 
 Lonsdale v. Nelson (2 B. & C. 302) ........ 316. 
 
 Lord v. Carbon Mfg. Co. (42 N. J. Eq. 157 
 [1886]) ................................. 284, 334 
 
 - v. Meadville W. Co. (135 Pa. St. 122, 
 
 26 W. N. C. no) ........................ 62,100 
 
 Loring v. Newton (8 Greenl. 61, 68 [1831]).. 586 
 Lorman y. Benson (8 Mich. 18) ........... 164 
 
 Los Angeles F. & M. Co. v. Thompson 
 
 (Cal.) (49 Pac. Rep. 714) ................. 573 
 
 Losey v. Buchanan (51 N. Y. 477) ......... 208 
 
 Loughran v. Des Moines (72 la. 384) ...... 223; 
 
 Louisville & N. R. Co. v. Beauchamp 
 
 (Ky.) (40 S. W. Rep. 679) ........... 82,83,84 
 
 - v. Bonhays (Ky.) (21 S. W. Rep. 526), 
 
 - v. Johnson (Ky.) (37 S. W. Rep. 844) 742 
 Louisville & N. C. Rv Co. v. Philyaw 
 
 (Ala.) (6 So. Rep. 837) .................... 529, 
 
 Louisville, etc., R. Co. v. Postal Tel. Cab 
 Co. (68 Miss. 806) .......................... 825 
 
 v. Thompson (18 B. Mon. 735) ......... 740 
 
 Louks v. Kenniston (50 Vt. 1 16) ............ 499- 
 
 Louth v. Thompson (Del.) (39 Atl. Rep. 
 
 iioo [1897]) .............................. 716, 71$ 
 
 Low v. Rizor (Oreg.) (37 Pac. Rep. 82), 
 
 62, 75, 76 
 
 - v. Schaffer (Oreg.) (33 Pac. Rep. 678), 
 
 54, 58, 62, 71, 75 
 
 - v. Tibbetts (72 Me. 92) .............. 448,451 
 
 Lowe v. Harris (N. C.) (17 S. E. Rep. 
 
 539) ........................................ 559> 
 
 Lower Kings D. Co. y. L. K. R. & F. C. 
 Co. (60 Cal. 408) ............................ 77 
 
xlvi 
 
 TABLE OF CASES. 
 
 Lowndes v. Wicks (Conn.) (36 Atl. Rep. 
 
 1072) 500, 501 
 
 Luce v. Carley (N. Y.) (24 Wend. 451 
 
 [1840]) 401, 402, 406 
 
 Lucot v. Rodgers (Pa. Sup.) (28 Atl. Rep. 
 
 242) 193 
 
 Ludlow v. Hudson Riv. R. Co. (4 Hun 
 
 239, 6 Lans. 128) 331 
 
 v. New York, etc., R. Co. (12 Barb. 
 
 (N. Y.) 440) 735 
 
 v. Troste (Ky.) (45 S. W. Rep. 661 
 
 [1898]) 323 
 
 Lulay v. Barnes (Pa.) (34 Atl. Rep. 52) 526 
 
 Lumpkin v. Draper (Tex.) (18 S. W. Rep. 
 
 1058) 630 
 
 Lunt v. Holland (14 Mass. 149) .99, 171, 573, 598 
 
 Lush v. Druse (4 Wend. 313) 573 
 
 Lux v. Haggin (69 Cal. 255) 71,74,75 
 
 Lyle v. Little (Sup.) (33 N. Y. Sup. 8).... 336 
 
 Lyman r. Gedney (114 111. 388) 573 
 
 v. Hale (n Conn. 177) 313,315 
 
 Lynch v. Livingston (8 Barb. 463) 46 
 
 v. Mayor (76 N. Y. 60) 187 
 
 Lynde v. Williams (68 Mo. 365) 528 
 
 Lyon v. Fishmongers Co. (L. R. i App. 
 
 Cas. 682) 51 
 
 v. Green Bay & Min. Ry. GO. (42 
 
 Wis. 544 [1887]) 353,755 
 
 v. Waldo (36 Mich. 345) 48 
 
 Lyttle Creek W. Co. v. Perdew (65 Cal. 
 
 447) 77 
 
 M. 
 
 Macauley v. Cunningham (60 111. App. 28) 611 
 
 Mace v. Philcox (15 C. B. N. S. 600) 237 
 
 Macomber v. Godfrey (108 Mass. 219 
 
 [1871]) 1720 
 
 Macon v. Franklin (12 Ga. 239) 703, 704, 705 
 
 Macris v. Bicknell (7 Cal. 261) 75 
 
 Madden v. Mayers (Wis.) (73 N. W. Rep. 
 
 43 
 
 [1897]).-. 
 den v. Tu 
 
 Madden v. Tucker (46 Me. 367 [1857]) 558 
 
 Magee v. Overshiner (Ind.) (49 N. E. Rep. 
 
 951 [1898]) 815 
 
 Magoun v. Lapham (21 Pick. 135 [1838]), 
 
 573, 598 
 
 Mahan v. Brown (13 Wend. 261) 271 
 
 Mahasha Co. R. Co. v. Des Moines V. R. 
 
 Co. (28 la. 437) 749 
 
 Mahill v. Torrence (163 111. 277) 516 
 
 Mahler v. Brunder (Wis.) (66 N. W. Rep. 
 
 502) 714 
 
 Mahon v. Richardson (50 Cal. 333 [1875]).. 410 
 
 Mailhot v. Pugh (30 La. Ann. 1350) 134 
 
 Mairs v. Manh. R. E. Assn. (89 N. Y. 
 
 506) 274 
 
 Major v. Watson (73 Mo. 661 [1881]), 
 
 577, 578, 617 
 
 Makepiece v. Bancroft (12 Mass. 469) 499 
 
 Malad Val. Irr. Co. v. Campbell (Idaho) 
 
 (18 Pac. Rep. 52 [1888]) no 
 
 Malcott v. Price (109 Ind. 22) 662 
 
 Manderschild v. Dubuque (29 Iowa 73) 706 
 
 Mandlebaum y. Russell (4 Nev. 551) 240 
 
 Mpngam v. Sing Sing (n App. Div. 212, 42 
 
 N. "Y. Supp. 950) 449 
 
 Manistee Mfg. Co. v. Cogswell (Mich.) (61 
 
 N. W. Rep. 884) 497 
 
 Mankato v. Willard (13 Minn. 23) 702 
 
 Manners v. Havershill (135 Mass. 165 
 
 [1883]) 352 
 
 Manning v. Port Reading R. Co. (N. J. 
 
 Ch.) (33 Atl. Rep. 802) 650,665 
 
 Manufacturers' Natural Gas Co. v. Leslie 
 
 (49 N. E. Rep. 946) 850 
 
 Manufacturing Co. v. Atty.-Gen'l (124 U. 
 
 S. 581, 8 Sup. Ct. Rep. 631) 255 
 
 Marcy v, Taylor (19 111. 634) 703 
 
 Marden v. Chase (32 Me. 229) 46 
 
 Marsh v. Ne-Ha-Sa-Ne Park Assn. (Sup.) 
 
 (42 N. Y. Supp. 996) 603 
 
 Marshall v. Hershey (Pa.) (39 Atl. Rep. 
 887 [1898]) ............................... .60, 75 
 
 - v. Peters (N. Y.) (12 How. Pr. 218).... 166 
 
 - v. Reed (48 N. H. 36) ................ 463 
 
 - v. Wenninger (Sup.) (46 N. Y. Supp. 
 670) ........................................ 6 50 
 
 - v. Niles (8 Conn. 369) .................. e^ 
 
 Martin v. Bliss (5 Blackf. (Ind.) 35) ...... 234 
 
 v. Gleason (139 Mass. 183) ..... 143,212,220 
 
 - v. Simpson (Mass.) (6 Allen 102) ...... 180 
 
 Martyn v. Curtis (Vt.) (35 Atl. Rep. 333), 
 
 626, 620 
 Marvin v. Elliot (Mo.) (12 S. W. Rep 
 
 899) ...................................... .. S50 
 
 Mason v. Ammon (Pa.) (11 Atl. Rep. 499 
 
 [1888]) ..................................... 520 
 
 - v. Brooklyn, etc., R. Co. (N. Y.) (35 
 Barb. 373) ............................... 749) 79S 
 
 - v. Hoyle (56 Com. 255 [1888]) ........ 81,84 
 
 Masonic Temple Ass'n v. Banks (Va.) (27 
 
 S. E. Rep. 490) ..................... 86,112,116 
 
 Massey v. Goyder (4 C. & P. 161) ...... 322,327 
 
 - v. Ruimer (69 Miss. 667) .............. 516 
 
 Mastenbrook v. Alger (Mich.) (68 N. W. 
 
 Rep. 213) .............................. 60, 71, 107 
 
 Masterson v. Munro (Cal.) (38 Pac. Rep. 
 1106) ....................................... 600 
 
 - v. West End. R. Co. (72 Mo. 342) ..... 741 
 Mathews v. Central U. Tel. Co. (14 Ohio 
 
 C. C. 273) .................................. 813 
 
 - - v. St. Paul, etc., R. Co. (18 Minn. 434) 740 
 Mathewson v. Hoffman (77 Ore. 420) ...... 107 
 
 Mathis v. Board of Assessors (La.) (16 So. 
 
 Rep. 454) ................................... 376 
 
 Matthews v. Metcalf (Iowa) (66 N. W. 
 Rep. 189) .................................. 85, 86 
 
 - v. Stillwater Co. (Minn.) (65 N. W. 
 Rep. 947) ................................... 212 
 
 Mauser i'. Blake (62 Me. 38) ............. 421,422 
 
 May v. Slade (24 Tex. 205) .................. 353 
 
 Maybin v. Conlon (4 Dall. (U. S.) 298) ____ 486 
 
 Mayo v. Turner (Vt.) (i Munf. 405) ...... 86 
 
 Mayor's Heirs v. Rice (57 Mo. 485 [1874]) 504 
 Maywood Co. et al. v. Village of Maywood 
 
 (111.) (5 N. E. Rep. 866) .................. 704 
 
 McAfee v. Arline (Ga.) (10 S. E. Rep. 
 
 441) ........................................ 555 
 
 McAllen v. Raphael (Tex.) (32 S. W. Rep. 
 
 44Q) ........ ^^^ 
 
 McAulay v. Western Vt. R. Co. to Vt 
 
 3") ................................ 665, 735, 741 
 
 McBroom v. Thompson (Ore.) (37 Pac. 
 
 Rep. 57) .................................... 662 
 
 McBurney v. Young (Vt.) (32 Atl. Rep. 
 
 492) ........................................ 421 
 
 McCabe v. Hood (Cir. Ct.) (i O. C. D. 
 
 292) ........................................ 712 
 
 McCaman v. Stagg (Kan. App.) (43 Pac. 
 
 Rep. 86) .................................... 387 
 
 McCann v. Strang (Wis.) (72 N. W. Rep. 
 
 1117 [1897]) ................................. 305 
 
 McCarney v. Higdon (50 Ga. 629) .......... 533 
 
 McCartney v. Dennison (Cal.) (^35 Pac. Rep. 
 
 766) ........................................ 554 
 
 - v. Chicago, etc., R. Co. (112 111. 6n)... 795 
 61 1) ........................................ 795 
 
 McClafferty v. Fisher (Pa.) (2 Atl. Rep. 610 
 
 [1885]) 
 
 McClellan v. ure 3 o. pp. 430 
 McCleneghan v. Omaha, etc., R. Co. (25 
 
 Neb. 523) ................................... 119 
 
 McCleod v. Bishop (Ala.) (20 So. Rep. 130) 528 
 McClintock v. Rogers (n Ills. 279) ........ 577 
 
 McConnell v. Lexington (12 Wheat. (U. 
 
 S.) 582) .................................... 703 
 
 - v. Rathbun (46 Mich. 305) .............. 545 
 
 McCormack v. Silsby (Cal.) (22 Pa. Rep. 
 
 874) .................................. , ..... 516 
 
 McCormick v. Barnum (10 Wend. 104) ..... 502 
 
 - v. Horan (81 N. Y. 86) ............. 184,205 
 
 - v. Kans. C., etc., R. Co. (57 Mo. 433 
 [1874]) ........... . ....................... 191, 192 
 
 McCoy v. Danley (20 Pa. St. 85) .......... 85 
 
 McCrary v. Beaudry (67 Cal. 120) .......... 73 
 
TABLE OF CASES. 
 
 xlvii 
 
 McCruden v. Rochester Ry. Co. (Cir. Ct.) 
 
 25 N. Y. Supp. 114) 448 
 
 McCulloch v. Aten (2 Ohio 308) 423 
 
 McCullough v. Nail (N. C.) (4 Rich. 68)... 431 
 
 v. Olds (Cal.) (41 Pac. Rep. 420) 613 
 
 v. St. Paul, M. & M. Ry. Co. (Minn.) 
 
 53 N. W. Rep. 802) 333 
 
 v. Wall (N. C.) (4 Rich. 68) 431 
 
 v. Wainwright (14 Pa. St. 171) 235 
 
 McDonald v. Askew (29 Cal. 200) 77 
 
 v. Bayne Ind.) (16 N. E. Rep. 795 
 
 [1888]) 544 
 
 v. B. R., etc., Co. (13 Cal. 220) 75,76,77 
 
 v. Lannen (Mont.) (47 Pac. Rep. 648), 
 
 McGee Irr. D. Co. v. Hudson (Tex. Sup.) 
 
 (22 S. W. Rep. 967) 74 
 
 McGettigan v. Potts (Pa. Sup.) (24 Atl. 
 
 Rep. 193) 330 
 
 McGuire v. Brown (Cal.) (39 Pac. Rep. 
 
 1060) i 75 
 
 v. Grant (i Dutch. (N. J.) 356). 325, 327, 33Q 
 
 Mclntosh v. Rankin (Mo. Sup.) (35 S. W. 
 
 Rep. 995) 86 
 
 Mclntyre v. Mich. State Ins. Co. (52 Mich. 
 
 188) 688 
 
 Mclver v. Walker (9 Cranch 173) 574,598 
 
 McKay v. Huggan (24 Nova Scotia 514) .. 390 
 
 McKee v. Griffin (23 La. Ann. 417) 35 
 
 McKelway v. Seymour (29 N. J. Law 
 
 321) 736 
 
 McKenzie v. Gilmore (Cal.) (33 Pac. Rep. 
 
 262) 703 
 
 v. Miss. Boom Co. (29 Minn. 288) 85 
 
 McKeon v. See (51 N. Y. 300) 214 
 
 McKey v. Hyde Park (10 Sup. Ct. Rep. 
 
 512) 612, 703 
 
 McKilvert's Trusts (Eng.) (7 Ch. 170) 556 
 
 McKinley v. Chosen Freeholders (29 N. 
 
 J. Eq. 171) 1720 
 
 McKinney v, McKinney (8 Ohio St. 423 
 
 [1858]) 604 
 
 v. Settles (31 Mo. 541) 46 
 
 -v. Smith (21 Cal. 374) 75 
 
 McLaughlin v. Bishop (35 N. J. Law 512 
 
 [1872]) 542, 549 
 
 McManus v. Carmichael (3 la. i) 231,237 
 
 McMaugh v. Burke (12 R. I. 499) 329,330 
 
 McNab v. Robertson (Eng.) (App. Cas. 
 
 129 [1896]) 261 
 
 McNamara v. Seaton (32 111. 500 [1876]) 
 
 McNeely v. Langan (22 Ohio St. 32).. 514, 
 
 546 
 
 McRoberts v. McArthur (Minn.) (34 
 
 Rep. 903) 
 
 McVey v. Durkin (Pa.) (20 Atl. Rep. 541 
 
 [1890]) 624 
 
 McWilliams v. Samuel (Mo.) (27 S. W. 
 
 Rep. 550) 502 
 
 Meacham v. Bunting (111.) (41 N. E. Rep. 
 
 175) 516 
 
 Mead v. Parker (115 Mass. 413 [1874]), 
 
 Meade v. Jones (Tex.) (35 S. W. Rep. '310)' 590 
 v. Leon, etc., Co. (Tex.) (22 S W. 
 
 Rep. 298) 586 
 
 Meagher v. Hardenbrook (Mont.) (28 Pac. 
 
 Rep. 451) 76 
 
 Mears r. Dole (135 Mass. 508 [1883]) 272 
 
 Medway Nav. Co. v. Romney (9 C. B. N. 
 
 S. 575) 62 
 
 Mee v. Benedict (Mich.) (57 N. W. Rep. 
 
 175) 546 
 
 Meister r. Lang (28 111. App. 624) 181 
 
 Meixell v. Morga.n (Pa.) (24 Atl. Rep. 216) 178 
 
 Melvin r. Proprietors, etc. (5 Met. 15) 598 
 
 Memphis, etc., Ry. Co. v. Humphreys 
 
 (Ark.) (48 S. W. Rep. 86 [1898]) 751 
 
 Mendel v. Whiting (111.) (31 N. E. Rep. 
 
 431) 597 
 
 Menzies v. Beedlebane (2 Wils. 235) 109 
 
 Mercantile Trust Co. v. Atlantic & Pac. R. 
 
 Co. (C. C.) (63 Fed. Rep. 910) 731 
 
 Meredith v. Frank (Ohio) (47 N. E. Rep. 
 
 656) 711, 715 
 
 Merrick Water Co. v. City of Brooklyn 
 
 
 
 (Sup.) (53 N. Y. Supp 10 [1898]).... 254, 257 
 
 Mernneld v. Worcester (no Mass. 219) 57 
 
 Merritt v. Brinkerhoff (17 Johns. (N. Y.) 
 
 306) in 
 
 v. Parker (i N. J. L. 460) 135 
 
 Merwin v. Camp (3 Conn. 35) 45 
 
 v. Wheeler (41 Conn. 14) 373 
 
 Metcalf v. McCutchen (60 Miss. 145) 518 
 
 Metropolitan W. S. El. R. Co. v. Springer 
 
 (49 N. E. Rep. 416, 171 111. 170 [1897])... 721 
 Mexia v. Lewis (Tex.) (21 S. W. Rep. 
 
 1016) 533 
 
 Meydenbauer v. Stevens (D. C.) (78 Fed. 
 
 Rep. 787) 573, 579 
 
 Meyer v. Covington (Ky.) (45 S. W. Rep. 
 
 769 [1898]) 546 
 
 v. Harris (N. J. Sup.) (38 Atl. Rep. 
 
 690 [1897]) 88 
 
 v. Phillips et al. (97 N. Y. 485 [1884]).. 243 
 
 v. Tacoma Lt. & W. Co. (Wash.) (35 
 
 Pac. Rep. 601) 257,259 
 
 Meyers v. Hudson Co. E. Co. (N. J.) (37 
 
 Atl. Rep. 618) 812 
 
 Michigan Tel. Co. v. Charlotte (U. S. C. 
 
 C.) (93 Fed. Rep. 11 [1899]) 869 
 
 Mickel v. York (66 111. App. 464) 338,343 
 
 Middlesex Co. v. McCue (149 Mass. 103).. 184 
 Middlestadt v. Waupaca S. & P. Co. 
 
 (Wis.) (66 N. W. Rep. 713) 208 
 
 Middleton v. Flat River B. Co. (27 Mich. 
 
 533) 243 
 
 v. Pritchard (4 111. 510) 431 
 
 Midgett v. Twiford (N. C.) (26 S. E. Rep. 
 
 626) 615 
 
 Miesen v. Canfield (Minn.) (67 N. W. Rep. 
 
 632) 526 
 
 Miles v. Barrows (122 Mass. 579) 491 
 
 v. Sherwood (Tex.) (19 S. W. Rep. 
 
 613) 630, 632 
 
 Miller v. Craig (83 Ky. 623) 590 
 
 v. Fawdrye (Popham 163) 315 
 
 v. Goodwin (8 Gray (Mass.) 542) 44 
 
 v. Hare (W. Va.) (28 S. E. Rep. 722 
 
 [1897]) 240 
 
 v. Hepburn (8 Bush (Ky.) 326) 387 
 
 v. Miller (68 Pa. St. 486) 48 
 
 v. Milwaukee (14 Wis. 642) 134 
 
 v. Richards (Ind.) (38 N. E. Rep. 
 854) 715 
 
 v. Vaughn (8 Oreg. 333) 77 
 
 v. White (Fla.) (2 So. Rep. 614 [1887]) 577 
 
 v. Windsor W. Co. (Pa. Sup.) (23 Atl. 
 Rep. 1132) 104 
 
 Millett v. Fowle (8 Cush. 150 [1851]) 605 
 
 v. Lagomarsino (Cal.) (40 Pac. Rep. 
 
 25) '. . 516 
 
 Millington v. Richards G. Co. (25 Gas J. 
 
 215) 264 
 
 Mill River Co. y. Smith (34 Conn. 462) 164 
 
 Mills v. Cambridge (117 Mass. 396) 242 
 
 v. Hall (N. Y.) (9 Wend. 315) 86 
 
 v. Osawatomie (Kan.) (53 Pac. Rep. 
 
 470 [1898]) .. 664 
 
 v. Waltham (126 Mass. 422) 62 
 
 Mills & Allen v. Evans (Iowa) (69 N. W. 
 
 Rep. 1043) 381, 683 
 
 Mills Co. v. B. & M. R. R. Co. (47 la. 
 
 66) 751 
 
 Millvale v. Evergreen R. Co. (131 Pa. 
 
 St.) 793 
 
 Milwaukee Gas Light Co. v. Gamecock 
 
 (23 Wis. 144) 240,242 
 
 Milwaukeef etc., R. Co. v. Strange (63 
 
 Wis. 178) 741 
 
 Mima Queer v. Hepburn (7 Cranch 290).. 620 
 Mine Hill, etc., R. Co. v. Lippincott (86 
 
 Pa. St. 486) : 749 
 
 Miner v. N. Y. Cent., etc., R. Co. (123 N. 
 
 Y. 242) 736 
 
 Mineral Springs Mfg. Co. v. McCarty (67 
 
 Conn. 279) 545 
 
 Minneapolis W. Co. v, Amer. S. Co. (53 
 
 Fed. Rep. 970) 51 
 
xlviii 
 
 TABLE OF CASES. 
 
 Minneapolis W. Ry. Co. v. Minneapolis & 
 
 St. L. Ry. Co. (Minn.) (59 N. W. Rep. 983) 665 
 Minor v. Kirkland (Tex.) (20 S. W. Rep. 
 
 M 9 mton' 'v. ' Steel'e ' (Mo'.' ' Sup'.) ' '(28 ' S." W.' 5 
 
 Rep. 746) 378, 380 
 
 Mission v. Cronin (N. Y. App.) (38 N. E. 
 
 Rep. 964) 521, 522 
 
 Mississippi Cent. R. Co. v. Mason (51 
 
 Miss. 234) 115 
 
 Mississippi Mills Co. v. Smith (Miss.) (n 
 
 So. Rep. 26) 212,216,223 
 
 Missouri, K. & T. Ry. Co. v. Bishop (Tex.) 
 
 (34 S. W. Rep. 323) i...... _:, 178 
 
 T. CO. V. 
 
 Missouri, etc., Ry. 
 
 Graham (Tex.) 
 
 (33 S. W. Rep. 576) 194 
 
 Missouri Pacific Ry. Co. v. Keys (Kan. 
 
 Sup.) (40 Pac. Rep. 275) . . : 105, 173 
 
 v. Renfro (Kan.) (34 Pac. Rep. 802).. 192 
 
 Mitchell v. Bain (Ind.) (42 N. E. Rep. 
 
 230) 1 10, 12.20, 178 
 
 v. Bass (33 Tex. 259) 707 
 
 v. Bellingsley (17 Ala. 391) 320 
 
 v. Haws (20 How. 29-32) 687 
 
 v. Mayor of Rome (49 Ga. 19) 326 
 
 v. New York, L. E. & W. R. R. Co. 
 
 (36 Hun 177 [1885]) 178,179 
 
 Mixer v. Reed (25 Vt. 254) 261 
 
 Mizell -v. McGowan (N. C.) (26 S. E. Rep. 
 
 783) 184 
 
 v. Ruffin (N. C.) (18 S. E. Rep. 72)..-. 559 
 Moberly, City of, v. McShane (7 Am. & 
 
 Eng. Corp. Cases 405) 704 
 
 Moffitt v. Lytle (Pa. Sup.) (30 Atl. Rep. 
 
 Mohr v. Gault (10 Wis. 513) 103 
 
 Molony v. Dixbn (65 Iowa 136) 337 
 
 Monongahela Nav. Co. v. Coon (6 Pa. St. 
 
 379) 62, 85 
 
 v. United States (13 S. Ct. 622). 242, .-45, 873 
 
 Monroe v. Conn. R. L. Co. (N. H.) (39 
 
 Atl. Rep. 1019 [1897]) 88 
 
 v. Ivie (2 Utah 535) 75 
 
 Monroe, City of, v. Police Jury (La ) (17 
 
 So. Rep. 498) 445 
 
 Montana Cent. Ry. Co. v. Helena & R. M. 
 
 R. Co. (Mont.) (12 Pac. Rep. 916 [1887]) 75* 
 Montana Co. v. Gehring (C. C. A.) (75 
 
 Fed. Rep. 384) 217 
 
 Monteleone v. Harding (La.) (23 So. Rep. 
 
 900) 336 
 
 Montezuma v. Minor (73 Ga. 484) 86 
 
 Montgomery v. Hinds (Ind. Sup.) (33 N. 
 
 E. Rep. uoo) 606 
 
 Moody v. Palmer (50 Cal. 31 [1875]). .. -447, 449 
 Moon v. Chicago, etc., Ry. Co. (la.) (39 
 
 N. W. Rep. 390 [1888]). 
 Moore v. Chicago, B. & ( 
 
 173 
 
 . Ry. Co. (Iowa) 
 
 (39 N. W. Rep. 390 [1888]) 173 
 
 v. Clear Lake W. (Cal.) (5 Pac. Rep. 
 
 494 [1885]) ioi 
 
 z-. Hinkle (Ind.) (50 N. E. Rep. 822 
 
 [1898]) 521 
 
 v. Los Angeles (72 Cal. 287) 144 
 
 v. McCown (Tex. Civ. App.) (20 S. 
 
 W. Rep. 1112) 530 
 
 r. Owen (46 S. W. Rep. 1005) 343 
 
 v. Sanborne (2 Mich. 519) 233 
 
 v. Shoemaker (D. C. App.) (25 Wash. 
 
 L. Rep. 72, 29 Chic. Leg. News 207). .337, 339 
 v. Webb (Eng.) (i C. B. N. S. 673). 222 
 
 v. Wilder (Vt.) (28 Atl. Rep. 320) 75 
 
 Moorhead v. Little Miami R. Co. (17 Ohio 
 
 340) 747 
 
 More v. Massini (37 Cal. 432) 407 
 
 Moreland v. Moreland (Pa.) (15 Atl. Rep. 
 
 655 [1888]) 526 
 
 Morgan v. Bowes (Sup.) (17 N. Y. Supp. 
 
 22) 322 
 
 v. Danbury (67 Conn. 484) 210,216 
 
 v. King (18 Barb. (N. Y.) 227, 35 N. 
 
 Y. 454) 232, 234, 240, 243 
 
 v. Moore (3 Gray 319 [1855])... 447 
 
 v. Railroad Co. (96 
 
 716). 
 
 703 
 
 Morris v. Beardsley (Conn.) (8 Atl. Rep. 
 
 139 [1887]) 383 
 
 v. Brook (Del. C. P.) (53 Am. Rep. 
 
 215) 431 
 
 v. Callanan (105 Mass. 129 [1870]). .521, 623: 
 
 v. Graham (Wash.) (47 Pac. Rep. 752) 240 
 
 v. Hill (i Mich. 202) 401 
 
 v. Receivers of R. Co. (C. C.) (65 Fed. 
 
 Rep. 584) 120 
 
 1>. Ward (36 N. Y. 587, 592) 572 
 
 Morris & E. R. Co. v. Hud. Tun. R. Co. 
 
 (10 C. E. Greene 384) 353 
 
 Morrisey v. Chicago, B. & Q. R. Co 
 
 (Neb.) (56 N. W. Rep. 946) 119,1723 
 
 Morrison v. First Nat'l Bk. (Me.) (33 Atl. 
 
 Rep. 782) 407 
 
 v. Seamons (183 Pa. St. 74) 579 
 
 Morrow v. Willard (30 Vt. 118 [1857]) . .447, 548 
 Morse v, Copeland (Mass.) (2 Gray 302), 
 
 643, 662, 669 
 v. Rollins (121 Pa. St. 537 [1888]), 
 
 v. Stockman (Wis.) (40 N. W. Rep.' ? 
 
 679 [1889]) 546 
 
 Mosier v. Caldwell (7 Nev. 363) 252 
 
 Moss v. Rose (Oreg.) (41 Pac. Rep. 666). 76, 77 
 Motley v. Sargent (119 Mass. 231 [1875]), 
 
 Mott v. Cherryvale W. & Mfg. Co. (Kan.)' 
 
 (28 Pac. Rep. 989) 148 
 
 v. Clayton (N. Y.) (9 App. Div. 181, 
 
 41 N. Y. Supp. 87) 44i,45i 
 
 v. Mott (68 N. Y. 246 [1877])-... 448, 450,453 
 
 v. Oppenheimer (N. Y. App.) (31 N. 
 
 E. Rep. 1097) 337 
 
 v. Palmer (i N. Y. 564) 8 
 
 Mowry v. Providence (10 R. I. 52) 702 
 
 Moyer v. Preston (Wyo.) (44 Pac. Rep. 
 
 Movie v. Connolly (50 Cal. 295 [1875]). .494, 500 
 Muhlker v. Ruppert (124 N. Y. 627 [1891]) 573 
 Muir v. Meredith (Cal.) (22 Pac. Rep. 
 
 1080) 544 
 
 Mullaney v. Duffy (111. Sup.) (33 N. E. 
 
 Rep. 750) 620 
 
 Mullen v. Penobscot Log-driving Co. (Me.) 
 
 54 
 
 (38 Atl. Rep. 557 [1897]). 
 
 v. St. John (57 N. Y. 
 
 Mulry v. Norton (100 
 
 v. St. John (57 N. Y. fer)....._.. A .i.i.. 331 
 Mumford v. Whiting (N. Y.) "(15 Wend. 
 
 424 [1885]), 
 376, 378, 380, 383 
 
 380) 663, 712, 719, 740 
 
 Mundell v. Hugh (2 Gill & J. 193) 352 
 
 Mundy v. N. Y., etc., R. Co. (N. Y.) (75 
 
 Hun 479) 87 
 
 Municipality No. 2 v. Cotton Press (18 La. 
 
 122) 379, 381, 382- 
 
 Munson v. Hungerford (6 Barb. N. Y. 265) 232 
 Murchie v. Black (19 C. B. N. S. 190).... 325 
 Murdock v. Gilchrist (52 N. Y. 246) 44 
 
 v. Prospect Park R. Co. (73 N. Y. 
 
 Murphy"^-." Bul'lodc (R. L) (37 Ati. ' Rep. 
 
 v. Doyle (33 N. W. Rep. 220, 37 Minn. 
 
 113) 526 
 
 v. Paynter (i Dill. 333) 48 
 
 v. Reynaud (Tex. Civ. App.) (21 S. W. 
 
 Rep. 991) 5i6 
 
 v. Wilmington (5 Del. Ch. 281). ..1720, 205 
 
 Murry v. Sermon (i Hawks' R. 56) 424 
 
 Muse v. Richards (Miss.) (12 So. Rep. 
 
 821) 551 
 
 Muskett v. Hill (5 Bing. N. C. 694) 667 
 
 Musser v. Fairmont, etc., Str. R. Co. (7 
 
 Amer. Law Reg. 284) 797 
 
 Mutual B. & L. Assn. v. Wyeth (Ala.) (17 
 
 So. Rep. 45) 554 
 
 Muzzey v. Davis (54 Me. 361) 706 
 
 Myer v. Whittaker (N. Y.) (55 How. Pr. 
 
 576) 164 
 
 Myers v. Schemp (67 111. 469) 8 
 
 v. Ladd (26 111. 414) 571.573 
 
 v. Nelson (Cal.) (44 Pac. Rep. 801).... 190 
 
TABLE OF CASES. 
 
 xlix 
 
 Myers v. Phila., J. & C. Pass. Ry. Co. 
 (Com. PI.) (12 Montg. Co. Law Rep. 46) 57 
 
 N. 
 
 Nally v. Penn. R. Co. (117 Pa. 117) 447 
 
 Napier v. Bulwinkle (S. C.) (5 Rich. 311), 
 
 326, 327 
 
 v. Simpson (i Tenn. 453) 518 
 
 Narron v. Wilmington & W. R. Co (N 
 
 C.) (29 S. E. Rep. 356 [1898]) 685 
 
 Nash v. El Dorado Co. (Cal.) (24 Fed. 
 
 Rep. 252) 688 
 
 Nashville, etc., Ry. Co. v. Hammond (15 
 
 So. Rep. 935) 535 
 
 v. Reynolds (Tenn.) (48 S. W. Rep. 
 
 258 [1898]) 685 
 
 National Bell Teleph. Co. v. Baker (Eng.) 
 
 (2 Ch. 186 [1893]) I 292,296 
 
 National Com. Bank v. Gray (Sup.) (24 N. 
 
 Y. Supp. 997) 342 
 
 Nat. Life Ins. Co. v. Lee (Minn.) (77 N. 
 
 343 
 
 W. Rep. 794 [1899]) 
 
 Nat. Tube Wks. Co. v. 
 
 Chamberlain (5 
 
 Dak. 54) 142 
 
 National W. W. Co. v. Kansas City (C. C.) 
 
 (65 Fed. Rep. 691) 147,661,848 
 
 Natoma W. & Min. Co. v. Hancock (Cal.) 
 
 75 
 
 (35 Pac. Rep 334) ..... 
 - v. McCoy (23 Cal. 491) .................. 75 
 
 Naylor v. Cox (Mo. Sup.) (21 S. W. Rep. 
 
 ' 3 ' 
 
 N 5 C. & 'S.' *C.' Co. v idd (37 Cal. 282) .. 
 Neal v. Hopkins (Md.) (39 Atl. Rep. 322 
 [1898]) ............................. 451, 452, 709 
 
 - v. Pittsburg & C. R. Co. (31 Pa. St. 
 
 19) ....................................... 353 
 
 Neary v. Phila., etc., R. Co. (Del.) (9 Atl. 
 
 Rep. 405 [1887]) ........................... 5 
 
 Nebraska v. Iowa (12 Sup. Ct. Rep. 396), 
 
 Nebraska Ry. Co. v. Culver (Nev.) (52 N.' 
 W. Rep. 886) .............................. 536 
 
 Nebraska Teleph. Co. v. N. Y. Gas Light 
 Co., 27 Neb. 284) .......................... 828 
 
 - v. York Gas & Elec. Co. (17 Neb. 
 284 [1889]) .................................. 295 
 
 Needles v. Smith (U. S. C. C. A.) (87 Fed. 
 
 Rep. 316 [1898]) ............................ 
 
 Negus v. Becker (Sup.) (22 N. Y. Supp. 
 
 986) ........................................ 340 
 
 Neilson v. Grignon (Wis.) (55 N. W. Rep. 
 
 890) ........................................ 523 
 
 Nellis v. Munson (N. Y.) (15 N. E. Rep. 
 
 739 [1888]) .................................. 847 
 
 Nelson v. Abernethy (Miss.) (21 So. Rep. 
 
 150) ........................................ 5540 
 
 - v. Butterfield (21 Me. 220) ............. 421 
 
 - v. Nelson (Mass.) (3 Gray 85) ........ 667 
 
 Nemasket Mills v. Taunton (Mass.) (44 
 
 N. E. Rep. 609) .......... .................. 57 
 
 Ne-Pee-Nauk Club v. Wilson (Wis.) (71 
 
 N. W. Rep. 661).. .................... 1720,421 
 
 Nettleton v. Sikes (Mass.) (8 Met. 34) ..... 667 
 
 Nevada Ditch Co. v. Bennett (Oreg.) (45 
 
 Pac. Rep. 472) ........................... 75,77 
 
 Nevada Water Co. v. Powell (34 Cal. 109).. 75 
 Nevins v. Peoria (41 111. 502) ............... 180 
 
 New Albany v. Lines (Ind. App.) (51 N. 
 
 E. Rep. 346 [1898]) ........................ 215 
 
 New Albany, City of, v. Slider (Ind. App.) 
 
 (52 N. E. Rep. 626 [1899]) ................. 303 
 
 New Albany, etc., R. Co. v. Peterson (14 
 
 Ind. 112) ............................ ....... 255 
 
 Newark v. Newark W. Co. (4 Ohio N. P. 
 
 341 [1897]) .................................. 151 
 
 New Brighton, etc., R. Co. v. Pittsburg, 
 
 etc., R. Co. (105 Pa. St. 13) .............. 751 
 
 Newcastle,' etc., R. Co. v. Peru, etc., R. 
 
 Co. (3 Ind. 464) ........................... 745 
 
 Newell v. Leathers (La.) (23 So. Rep. 243 
 
 [1897]) ............................... ....:. 383 
 
 Newhall v. Ireson (Mass.) (8 Cush. 595 
 
 Newhoff v.' Mayo' (N! ' j.' 'c'h.')' '(36 
 
 265) 7I2 
 
 New Jersey, etc., R. Co. v. Van Syckle (37 
 
 N. J. Law 496) 74I 
 
 New Jersey Z. & I. Co. v. Morris C.'& 
 
 B. Co. (N. Y.) (15 Atl. Rep. 227) 424 
 
 Newkirk v. Sabler (N. Y.) (9 Barb. 655).. 315 
 Newland v. Hudson R. Co. (Sup.) (16 N. 
 
 Y. Supp. 654) 85,86 
 
 New London W. Bd. v. Perry (69 Conn. 
 
 461) 83 
 
 New Orleans v. United States (10 Pet. 
 
 (U. S.) 662) 703,708 
 
 New Orleans & N. E, R. Co. v. McEwen 
 
 & Murray (22 So. Rep. 675) 121 
 
 New Orleans Water Co. v. Rivers (115 U. 
 
 S. 674) ! 47 
 
 Newport v. Commonwealth (Ky.) (50 S. W. 
 
 Rep. 845 [1899]) 871 
 
 Newson v. Anderson (2 Ired. 42) 352 
 
 News River Co. v. Johnson (2 El. & El. 
 
 445) 252, 254 
 
 Newton v. Louisville & N. R. Co. (Ala.) 
 
 (19 So. Rep. 19) 544 
 
 New York v. Bailey (N. Y.) (2 Den. 
 
 433) 87 
 
 v. New York Cent., etc., R. Co. (Sup.) 
 
 (23 N. Y. Supp. 562) ...441 
 
 v. Speelman (Ind. App.) (40 N. E. 
 
 Rep. 541) 136, 1720, 173 
 
 v. Stuyvesant (17 N. Y. 34) 702 
 
 N. Y. Cent. & H. R. R. Co. v. Aldridge 
 
 (Sup.) (16 N. Y. Supp. 674) 413 
 
 N. Y. C. & St. L. R. Co. v. Hamlet Hay 
 
 Co. (Ind.) (47 N. E. Rep. 1060 [1897]), 
 
 N. Y. Mail & Newspaper Transp. Co. v'. 
 
 Shea (Sup.) (5! N. Y. sSupp. 563 [1898]). 877 
 N. Y., etc., R. Co. v. N. Y., etc., R. Co. ' 
 
 (N. Y.) (u Abb. N. Cas. 386) 751 
 
 N. Y., etc., R. Co. v. South Amboy (N. J. 
 
 Sup.) (30 Atl. Rep. 628) 709 
 
 N. Y., O. & W. R. Co. v. Western U. T. 
 
 Co. (36 Hun 205 [1885]) 5 
 
 Co. v. ' -"A"-""! 
 
 N. Y. Rubber 
 
 othery (Sup.) (23 
 
 N. Y. Supp. 247) 54, 104, 115 
 
 N. Y. State, etc., R. Co. v. Cent. Onion 
 
 Tel. Co. (N. Y.) (21 Hun 261) 818 
 
 N. Y., etc., Teleph. Co. v. East Orange Tp. 
 
 (42 N. J. Eq. 490) 811 
 
 N. Y. & T. Land Co. v. Gardner (Tex. 
 
 Civ. Ap.) (25 S. W. Rep. 737) 467, 492 
 
 v. Thomson (Tex. Sup.) (17 S. W. 
 
 Rep. 920) 600 
 
 v. Votaw (14 Sup. Ct. Rep. i) 571 
 
 N. Y. U. T. Co. v. Cuppy (26 Kan. 754).. 117 
 Nichlas v. Keller (Sup.) (41 N. Y. Supp. 
 
 172) 714 
 
 Nicholasville W. Co. v. Board (Ky.) (36 S. 
 
 W. Rep. 549) 148 
 
 Nichols v, Lantz (Colo. App.) (47 Pac. 
 
 Rep. 70) 76 
 
 v. Marsland (L. R. 10 Exch. 255) 272 
 
 v. Peck (Conn.) (39 Atl. Rep. 803 
 
 [1898]) 713, 716 
 
 Nicld v. London, etc., R. Co. (L. R.) (10 
 
 Exch. 4) 134 
 
 Niles v. Cedar Point Club (U. S. C. C.) 
 
 (85 Fed. Rep. 45 [1898]) 234,410,421 
 
 Nippoit v. Kammon (Mich.) (40 N. W. 
 
 Rep. 266 [1889]) 554 
 
 Nivette v. New Orleans, etc., R. Co. (42 
 
 La. Ann. 1153) 794 
 
 Nolan v. New Britain (Conn.) (38 Atl. Rep. 
 
 703 [1897]) 204, 205, 209, 212 
 
 Nolon v. Harned (N. Y.) (13 App. Div. 
 
 155) SOT 
 
 Noonan v. Albany (79 N. Y. 470) 184 
 
 v. Lee (2 Black 504) 613 
 
 Norbury v. Kitchin (7 L. T. N. S. 685) 63 
 
 Norfolk & W. R. Co. v. Carter (Va.) (22 
 
 S. E. Rep. 517) 114, 120 
 
TABLE OF CASES. 
 
 I 
 
 Northeastern R. Co. v. Payne (S. C.) (8 
 
 Rich. 177) 753. 795 
 
 Northern Pac. Ry. Co. v. Doherty (Wis.)' 
 
 (75 N. W. Rep. 1079) 745, 752 
 
 _ V Scott, etc., Co. (Minn.) (75 N. VV. 
 
 Rep. 737) 613 
 
 Northern Pine-land Co. v. Bigelow (84 Wis. 
 
 157) 3/8, 383, 409 
 
 North Point C. Irr. Co. v. Utah & S. L. 
 
 Canal Co. (52 Pac. Rep. 168) 75 
 
 North Powder Mill Co. v. Caughanour 
 
 (Oreg.) (54 Pac. Rep. 223 [1898]) 75 
 
 Northumberland Coal Co. v. Clement (95 
 
 Pa. St. 126) 628 
 
 North Vernon v. Voegler (103 Ind. 316) 189 
 
 Norton v. Elwert (Oreg.) (41 Pac. Rep. 
 
 926) 336 
 
 v. Scholefield (9 M. & W. 665) 202,269 
 
 Norvell v. Thompson (S. C.) (2 Hill 470) 352 
 Norwich G. Co. v. Norwich G. Co. (25 
 
 Conn. 24) 846 
 
 Novotny v. Danforth (S. D.) (68 N. W. 
 
 Rep. 749) 322,323,549,600 
 
 Nowlin v. Whippel (79 Ala. 481) 666 
 
 Noyes v. Board of Sup. (la.) (73 N. W. 
 
 Rep. 480) 421, 424 
 
 v. Collins (la.) (61 N. W. Rep. 250), 
 
 390, 421, 424 
 
 v. Ward (19 Conn. 250) 706 
 
 Nunamaker v. Columbia W.-p. Co. (S. C.) 
 
 (25 S. E. Rep. 75i) 662 
 
 Nunnelly v. Southern Iron Co. (Tenn.) (29 
 
 S. W. Rep. 361) 212,712 
 
 Nuttal v. Bracewell (L. R. 2 Ex. i) 61 
 
 Nutter v. Gallagher (Ore.) (24 Pac. Rep. 
 
 Nye J/ AHter '(Mo/ Sup.)' '('30" S.' W."Rep. ^ 
 186) 52i 
 
 O. 
 
 Oakes v. De Lancey (N. Y. App.) (30 
 
 N. E. Rep. 974) 407, 4" 
 
 Oakland v. Oakland W. F. Co. (Cal.) (50 
 
 Pac. Rep. 277) 406, 409 
 
 Oakley v. Anderson (93 N. C. 108) 475 
 
 Obernalta v. Edgar (44 N. W. Rep. 82)... 517 
 Obert v. Dunn (Mo.) (41 S. W. Rep. 901), 
 
 323, 328,-333 
 O'Boyle ?s McHugh (Minn.) (69 N. W. 
 
 Rep. 37) 516 
 
 O'Brien v. Flynn (Mass.) (33 N. E. Rep. 
 
 500) 613, 616 
 
 v. King (N. J.) (7 Atl. Rep. 33 [1887]) 445 
 
 Ocean Grove C. M. Assn. v. AsbUry Pk. 
 
 Comm'rs (40 N. J. Eq. 447) 257 
 
 O'Connell v. Bryant (121 Mass. 557 [1877]) 447 
 Odd Fellows' Hall v. Hegele (Oreg.) (32 
 
 Pac. Rep. 679) 339 
 
 Odell v. Nyack Waterworks Co. (Sup.) 
 
 (36 N. Y. Supp. 206) 274 
 
 O'Dell v. Swaggerty (Tenn.) (42 S. W. Rep. 
 
 175 [1897]) 583 
 
 O'Donnell v. Kelsey (10 N. Y. 412) 383 
 
 Ogden City v. Grossman (Utah) (53 Pac. 
 
 Rep. 985 [1898]) 833,834 
 
 Ogilvie v. Copeland (111. Sup.) (33 N. E. 
 
 Rep. 1085) 573 
 
 O'Hara v. O'Brien (Cal.) (40 Pac. Rep. 423) 631 
 
 -v. Stark (90 Pa. St. 477) 2 
 
 O'Herrin v. Brooks (Miss.) (6 So. Rep. 844) 
 
 590, 600 
 Ohio & B. S. R. Co. v. Wooten (Ky.) (46 
 
 S. W. Rep. 681) 521 
 
 Ohio & M. R. Co. v. Thillman (111. Sup.) 
 
 (32 N. E. Rep. 529) 112, 114, 115, 117, 120 
 
 v. Webb (111. Sup.) (32 N. E. Rep. 
 
 Ohio River'R.''c'o.'^.''Sch'on''(W.''Va.')''(ii 
 
 S. E. Rep. 18) 544 
 
 Okeson v. Paterson (29 Pa. St. 22 [1857]).. 678 
 Olive v. State (86 Ala. 88) 241, 243 
 
 p. 309 [1897]) 501 
 
 laer v. Philadelphia Co. (31 Fed. Rep. 
 
 Oliver v. Brown (Me.) (15 Atl. Rep. 599 
 
 [1888]) ....TV. 612 
 
 v. Olmstead (Mich.) (70 N. W. Rep. 
 
 1036) 164 
 
 Olney v. Fenner (2 R. I. 211, 214) 407 
 
 Olson v. Huntamer (S. D.) (61 N. W. 
 
 Rep. 479) 421, 424 
 
 v. Keith (Mass.) (39 N. E. Rep. 410).. 573 
 
 Olwine v. Holman (23 Pa. St. 279) 529 
 
 Omaha & R. V. Ry. Co. v. Richards 
 
 (Neb.) (57 N. W. Rep. 739) 681 
 
 Omensetter v. Kemper (6 Pa. Super. Ct. 
 
 Re 
 Oms 
 
 O'Neill' 'v.' Bree'se' '(Super.)' '('23' N'.' Y! 'Supp. 
 
 526) 307 
 
 Onstott v. Murray (22 Iowa 457) 703 
 
 Opdyke v. Stephens (4 Dutch. 89) 542,612 
 
 Ophir S. Mfg. Co. v. Carpenter (4 Nev. 
 
 O'Reiley' v.' McCnesn'e'y"(N.' Y'.)"(3 'Lan'sl 
 
 278) 222 
 
 Orena v. Santa Barbara (Cal.) (28 Pac. 
 
 Rep. 268) 630 
 
 Ormered v. N. Y., etc., Co. (13 Fed. Rep. 
 
 370) 241 
 
 Ormorod v. Todmorden Mill Co. (Eng.) 
 
 (n Q. B. Div. 155) 61 
 
 Orr v. Quimby (54 N. H. 590 [1874]). . -353, 354 
 Orriel v. Ft. Worth (Tex.) (32 S. W. Rep. 
 
 443) 7o6 
 
 Ortman v. Dixon (13 Cal. 33) 75 
 
 Orvis v. Elmira,. etc., R. Co. (Sup.) (45 
 
 N. Y. Supp. 367) 114, 117 
 
 Osborn v. Wise (Eng.) (7 Cor. & P. 761) 715 
 Osgood v. El Dorado W. & M. Co. (56 
 
 Cal. 571) 73,75 
 
 Oswald v. Grenet (22 Tex. 94) 703 
 
 Oswego v. Canal Co. (6 N. Y. 257) 706 
 
 Ottawa Gas Lt. Co. v. Graham (28 111. 74) 264 
 
 Otto v. Specht (n Cent. Rep. 244) 8 
 
 Ousby v. Jones (73 N. Y. 621) 572 
 
 Overton v. Davisson (i Gratt. 211) 521 
 
 Owen i\ Bartholomew (Mass.) (9 -Pick. 520 
 
 [1830]) 597 
 
 v. Henderson (Wash.) (47 Pac. Rep. 
 
 215) 554 
 
 Owens v. Lancaster (Pa.) (37 Atl. Rep. 
 
 858) 201, 207, 212 
 
 Owensboro, etc., R. Co. v. Barker (Ky.) 
 (37 S. W. Rep. 848) 544,745 
 
 Owings v. Freeman (Minn.) (51 N. W. 
 Rep. 476 [1892]) 633 
 
 P. 
 
 Pac. Mut. Tel. Co.' v. Chicago, etc., Bridge 
 
 Co. (36 Kan. 113) , 824 
 
 Pac. Post. Tel. Cab. Co. v. Irvine (49 Fed. 
 
 Rep. 113) 815 
 
 V. West. Un. Tel. Co. (Cir. Ct.) (50 
 
 Fed. Rep. 493) 819 
 
 Packscher v. Fuller (Wash.) (33 Pac. Rep. 
 
 8 75 ) 631 
 
 Paducah, City of, v. Allen (Ky.) (49 S. 
 
 W. Rep. 343) 303 
 
 Paine v. Chandler (134 N. Y. 385) 260 
 
 v. Consumers Co. (C. C. A.) (71 Fed. 
 
 Rep. 626) 447 
 
 v. Edsell (19 Pa. St. 180) 47 
 
 v. Upton (87 N. Y. 327 [1882]).. 552, 588, 590 
 
 v. Woods (108 Mass. 160, 172, 173), 
 
 167, 169, 407, 421, 422 
 Paine Lumb. Co. v. United States (C. C.) 
 
 (55 Fed. Rep. 854) 373,374 
 
 Palatine v. Krueger (111.) (12 N. E. Rep. 
 
 Palestine 7 w! ' &' P." ' Co.' 'v. ' Palestine ' (Tex. 
 
 Civ. App.) (41 S. W. Rep. 659) v ... 148 
 
 Palmer v. Angel (Sup.) (23 N. Y. Supp. 
 
 397) 75 
 
TABLE OF CASES. 
 
 li 
 
 Palmer v. Clark (106 Mass. 373) 477 
 
 v. Cuyahoga Co. (U. S.) (3 McLean 
 
 226) 245 
 
 v. Evangelico Soc. (Mass.) (43 N. E. 
 
 Rep. 1028) 340 
 
 v. Farrell (Pa.) (18 Atl. Rep. 761).... 557 
 
 v. Fleshees (i Sid. 167) 325 
 
 v. Larchmont Elec. Co. (158 N. Y. 
 
 235) 794 
 
 v. Mulligan (N. Y.) (3 Cai. 307) 1720 
 
 v. Palmer (N. Y. App.) (44 N. E. Rep. 
 
 966) 715 
 
 Palms v. Shawans Co. (61 Wis. 211 [1884]) 586 
 Panton v. Holland (17 Johns. 92.). .323, 327, 331 
 Para Rubber Shoe Co. v. Boston (139 
 
 Mass. 155) 60 
 
 Paris v. Allred (Tex.) (43 S. W. Rep. 62 
 
 [1897]) 204 
 
 Parish v. Jones (Mass.) (8 Cush. 184) 6 
 
 v. Kaspere (109 Ind. 585) 662 
 
 Parke v. Kilham (8 Cal. 77) 75 
 
 Parker v. Atchison (Kan.) (48 Pac. Rep. 
 
 631) 132, 134 
 
 v. Boston R. Co. (3 Cush. 114) 255 
 
 v. Co. of N. (150 Mass. 489) 352 
 
 v. Foote (19 Wend. 309) 674,676 
 
 v. Larsen (86 Cal. 236) 274 
 
 v. Norfolk & C. R. Co. (N. C.) (25 
 
 S. E. Rep. 722) 194 
 
 v. Salmons (Ga.) (28 S. E. Rep. 681 
 
 [1897]) 516, 611 
 
 Parkersburg Ind. Co. v. Schultz (W. Va.) 
 
 (27 S. E. Rep. 255) 522 
 
 Parks v. Barnett (Ala.) (17 So. Rep. 354).. 516 
 
 v. Loomis (6 Gray 467) 573,598 
 
 Parks C. & M. Co. v. Hoyt (57 Cal. 44).... 77 
 
 Parsons i>. Trustees (42 Ga. 529) 706 
 
 Partridge v. Scott (3 Mee. & W. 220) 326 
 
 Pasley v. Richardson (N. C.) (26 S. E. 
 
 Rep. 32) 523 
 
 Patch v. White (117 U. S. 210) 552 
 
 Patrick v. Spradlin (Ky.) (42 S. W. Rep. 
 
 919 [1897]) 558 
 
 Patten v. Findley (Sup.) (18 N. Y. Supp. 
 
 683) 498 
 
 Patterson v. Hubbard (30 111. 201) 19 
 
 v. M'Causland (3 Eland's Ch. Repts. 
 
 69 [1841]) 580 
 
 v. Pease (5 Ohio 119) 45 
 
 Patterson, etc., R. Co. v. Patterson (24 N. 
 
 J. Eq. 158) 789 
 
 Pattison v. Dryer (Mich.) 57 N. W. Rep. 
 
 814) 528 
 
 Paul v. Carver (26 Pa. St. 223) 446,447,449 
 
 Pawlet, Town of, v. Clark (U. S.) (9 
 
 Cranch 292) 703 
 
 Paxton v. Yazoo & M. V. R. Co. (Miss.) 
 
 (24 So. Rep. 536 [1899]) 685,731 
 
 Payne v. Crawford (Ala.) (14 So. Rep. 
 
 854) ' 625 
 
 v. Kansas City, etc., R. Co. (112 Mo. 
 
 6) 85, 112, 117 
 
 Peabody Hts. Co. v.'Sadtler (63 Md. 533).. 451 
 v. Westerly W.-w. Co. (R. I.) (37 Atl. 
 
 Rep. 807) 146 
 
 Pearne v. Coal Creek Min. & Manfg. Co. 
 
 (Tenn.) (18 S. W. Rep. 402) 715 
 
 Pearsall v. Post (N. Y.) (20 Wend. 425).... 702 
 v. Westcott (51 N. Y. Supp. 663 
 
 [1898]) 338, 501 
 
 Pearson v. Barringer (N. C.) (13 S. E. 
 
 Rep. 942) 462 
 
 v. Dryden (Oreg.) (43 Pac. Rep. 166), 
 
 502, 503 
 
 Peart v. Meeker (La.) (12 So. Rep. 490) 241 
 
 Peay v. Salt Lake City (Utah) (40 Pac. 
 
 Rep. 206) 52,662 
 
 Peck v. Denniston (121 Mass. 17 [1876]), 
 
 447, 448, 451 
 Pellishier v. Corker (Cal.) (37 Pac. Rep. 
 
 465) 713 
 
 Pendleton v. Snyder (Tex.) (24 S. W. Rep. 
 
 363) 521 
 
 v. Stuart (Va.) (5 Call, i) 590 
 
 Pennington v. Brinsop Hall Co. (Eng.) 
 
 (5 Ch. Div. 769) 216,210 
 
 Penn. Coal Co. v. Ayres (N. J.) (14 Atl.) 
 
 Rep. 901 [1888]) 447 
 
 v. Sanderson (113 Pa. St. 126) 184,269 
 
 Penn. R. Co. v. Breckenridge (38 Atl. Rep. 
 
 74o) 535 
 
 v. Bruner (55 Pa. St. 318) 753 
 
 v. Miller (112 Pa. St. 34) 63 
 
 Penn. Teleph. S. Co. v. Wilkesbarre & S. 
 
 W. Ry. Co. (u Pa. Co. Ct. Rep. 417)... 296 
 Pensacola Gas Co. v. Pebley (5 So. Rep. 
 
 593 [1889]) 264 
 
 Pensacola Tel. Co. v. West. Un. Tel. Co. 
 
 (96 U. S. i). 819,821 
 
 People v. Auditor-General (7 Mich. 96) 573 
 
 v. Barnard (no N. Y. 548) 787,788 
 
 v. Board (111.) (17 N. E. Rep. 147 
 
 [1888]) 407 
 
 v. Bd. of Assess. (39 N. Y. 81) 847 
 
 v. Bd. of R. Commrs. (52 N. Y. Supp. 
 
 908) 756, 798 
 
 v. Bd. Supervisors (125 111. 9 [1888]), 
 
 373, 403, 406, 407, 447, 451 
 
 v. Borda (Cal.) (38 Pac. Rep. mo)... 208 
 
 v. Broadway R. Co. (126 N. Y. 29)... 787 
 
 v. Brooklyn, etc., R. Co. (89 N. Y. 75 
 
 [1882]) 752 
 
 v. Canal Apprs. (33 N. Y. 461) 413 
 
 v. Cassity (46 N. Y. 46) 5 
 
 v. Chicago, etc., R. Co. (118 111. 113) 789 
 
 v. Chic. W. Div. R. Co. (118 111. 113) 787 
 
 v. Commrs. of Texas (101 N. Y. 322 
 
 [1885]) 5 
 
 v. Elk. R. M. & L. Co. (Cal.) (40 
 
 Pac. Rep. 486) 208 
 
 v. General Electric Ry. Co. (172 111. 
 
 129 [1898]) 797 
 
 v. Gold Run, etc., Co. (66 Col. 138)... 242 
 
 v. Jessup (Sup.) (51 N. Y. Supp. 228 
 
 [1898]) 238, 240, 242 
 
 v. Jones (112 N. Y. 597 [1889]) 573,589 
 
 v. Kellogg (22 N. Y. Supp. 490) 705 
 
 v. Kirk (111.) (45 N. E. Rep. 830).... 421 
 
 -v. Lambier (N. Y.) (5 Denio 9) 379 
 
 v. Lewis (86 Mich. 273) 304 
 
 v. Mariposa Co. (31 Cal. 196 [1866]), 
 
 v. McCune (Utah) (46 Pac. Rep. 658),' 
 
 205, 207 
 v. N. Y. G. Co. (N. Y.) (64 Barb. 
 
 v. ' 'O'Brien* '(i 1 1 ' N.' ' Y." ' j '.'. '. '. '. '. .' *'.*'.'! .' 84! 
 v. Osborn (Sup.) (32 N. Y. Supp. 
 
 358) 683 
 
 v. Park & O. N. Co. (Cal.) (18 Pac. 
 
 Rep. 141 [1888]) 797 
 
 v. Reed (81 Cal. 70) 706 
 
 ?. Revell (111. C. C.) (29 Chic. Leg. 
 
 News 345) 241 , 242 
 
 v. Rogers (12 Col. 278) 222 
 
 v. San Luis Obispo (Cal.) (48 Pac. 
 
 Rep. 723) 209 
 
 v. Silberwood (Mich.) (67 N. W. Rep. 
 
 1087) 421 
 
 v. Sperry (Cal.) (48 Pac. Rep. 723) 709 
 
 v. Squire (N. Y.) (14 N. E. Rep. 820 
 
 [1888]) 833 
 
 v. Storms (97 N. Y. 364 [1884]) 554 
 
 -v. Underbill (23 N. Y. Supp. 388).... 706 
 
 v. Utica Cement Co. (22 111. App. 159) 90, 
 
 v. Warner (Mich.) (74 N. W. Rep. 
 
 705 [1898]) 410, 432 
 
 v. Woodruff (Sup.) (51 N. Y. Supp. 
 
 515 [1898]) .241, 383 
 
 People ex rel. Ackerman v. True (N. Y. 
 
 Sup. Ct. [1900]) 308 
 
 People ex rel. 3d Ave. v. Newton (112 N. 
 
 Y. 404) 846 
 
 People's Ice Co. v. Steamer Excelsior (44 
 
 Mich. 229) 164, 169, 319 
 
 People's Pass. R. Co. v. Baldwin (Pa.) (37 
 
 Leg. Int. 424) 747 
 
 Peoria v. Ballance (61 111. App. 369) 241 
 
lii 
 
 TABLE OF CASES 
 
 Peoria W. Co. v. Cent. Ry. and P. & P. 
 
 Hts. Ry. (111. Courts 1900) 293 
 
 Perkins v. Adams (Mo. Sup.) (33 S. W. 
 
 Rep. 778) 414, 43i 
 
 v. Blood (36 Vt. 273) 530 
 
 v. Bulkley (111. Sup.) (46 N. E. Rep. 
 
 Perry v. Lawson (Ala.) (20 So. Rep. 
 61 1) 530 
 
 v. Scott (N. C.) (14 S. E. Rep. 294).. 555 
 
 Peter v. Caswell (38 Ohio St. 518) 107 
 
 Peters v. Gracia (Cal.) (42 Pac. Rep. 455) 580 
 
 v. Little (Ga.) (22 S. E. Rep. 44) 716 
 
 Petersen v. Santa Rosa (Cal.) (51 Pac. Rep. 
 
 557 [1897!) 204,206,209,210,219,223 
 
 Peterson v. Skjelver (Neb.) (62 N. W. Rep. 
 
 43) 577, 579 
 
 Petrie v. Hamilton College (Sup.) (40 N. 
 
 Y. Supp. 781) 62 
 
 Pettibone v. Smith (37 Mich. 579) 101 
 
 Peyton v. Mayor of London (9 B. & C. 
 
 v. Shaw (15 111. App. 192) 703 
 
 Pfaff v. Terre Haute, etc., R. Co. (106 
 
 Ind. 144) 731 
 
 Pfeiffer v. Brown (Pa. Sup.) (30 Atl. Rep. 
 
 844) 216, 220 
 
 v. Grossman (15 111. 53) 352 
 
 v. Lindsay (Tex.) (i S. W. Rep. 265) 555 
 
 v. Matthews (Mass.) (37 N. E. Rep. 
 
 e 7 1 ) \ 343 
 
 Pharis v.' Jones (Mo. Sup.) (26 S. W. Rep. 
 
 1032) 517 
 
 Philadelphia v. Scott (81 Pa. St. 85 [1886]) 453 
 Phila., etc., R. Co. v. Davis (Md.) (u Atl. 
 
 Rep. 822 [1888]) 114,118 
 
 v. Maryland (U. S.) (10 How. 393)... 5 
 
 v. Phila., etc., Ry. Co. (6 Pa. Dist. 
 
 Rep. 269, 487) 7 1 7, 759 
 
 v. Pottsville W. Co. (Com. PI.) (18 Pa. 
 
 Co. Ct. Rep. 501) 57,60,62,63 
 
 v. Williams (54 Pa. St. 103) 747 
 
 v. Wilmington City Ry. Co. (38 Atl. 
 
 Rep. 1067) 876 
 
 Phila. Pass. R. Co. v. Phila. (Pa.) (10 
 
 Phila. 70) 846 
 
 Phillips v. Philadelphia & R. T. R. Co. 
 
 (Pa.) (39 Atl. Rep. 298 [1898]) 764 
 
 v. Ritter (N. Y.) (20 App. Div. 34) 587 
 
 v. Sherman (64 Me. 171) 169 
 
 v. Waterhouse (69 la. 199) 183, 184 
 
 Phillipson v. Gibbon (L. R. 6 Ch. 428) 529 
 
 Phinney v. Campbell (Wash.) (47 Pac. Rep. 
 
 502) 467 
 
 v. Watts (Mass.) (9 Gray 269) 422 
 
 Phipps v. State (Ind.) (7 Blackf. 312) 703 
 
 Phoenix Water Co. v. Fletcher (23 Cal. 
 
 482) 75 
 
 Pierce v. Brew (43 Vt. 295) 44 
 
 24 Vt. ii" 
 
 v. Brown (24 
 
 165 [185*]).... 557, 576, 
 
 v. Dyer (109 Mass. 374) 325 
 
 it. Kinny (N. Y.) (59 Barb. 56) 133 
 
 Pierpont v. Loveless (72 N. Y. 211) 241 
 
 Pierson v. Armstrong (i Iowa 292) 46 
 
 v. Conley (Mich.) (55 N. W. Rep. 387) 516 
 Pile v Pedrick (Pa. Sup.) (31 Atl. Rep. 
 
 647) 336, 337 
 
 Pillsbury v. Morris (Minn.) (56 N. W. 
 
 Rep. 170) 343 
 
 Pine v. New York (C. C.) (76 Fed. Rep. 
 
 418) 54, 58, 104 
 
 N. W. 
 
 Pinkum v. Eau Claire (Wis.) (51 
 
 Rep. 550) 
 
 Piper v. Connolly (108 111. 646 [1884]), 
 407, 4i3, SSo, 582, 
 
 
 613, 616 
 Pitcher v. Dove (99 Ind. 175) ............... 499 
 
 Pitney v. Heusted (Sup.) (40 N. Y. Supp. 
 
 407) ........................................ 447 
 
 Pittsburg, etc., R. Co. v. Birmingham (51 
 
 Pa. St. 41) ................................. 788 
 
 - v. Gilleland (56 Pa. St. 445) ........... 90 
 
 - v. Point Bridge Co. (Pa.) (22 Pittsb. 
 
 L. J. N. S. 367) ........................ 720,784 
 
 Pixley v. Clark (35 N. Y. 520) .............. 90 
 
 Rep. 365, 170 111. 513), 
 v. Norfolk, etc., R. Co. 
 
 
 Platt v. Bente (N. J.) (10 Atl. Rep. 283 
 
 [1887]) . ......: ss? 
 
 v. Johnson (N. Y.) (15 Johns. 213).. 83, in 
 
 Platte Val. Irr. Co. v. Buckers (Colo.) (53 
 
 Pac. Rep. 334 [1898]) 108 
 
 Pleas v. Thomas (Miss.) (22 So. Rep. 820 
 
 [1897]) 715 
 
 Plummer v. Gloversville Elec. Co. (N. Y.) 
 
 (20 App. Div. 527 [1897]) 817 
 
 Pocantico W.-w. Co. v. Bird (N. Y. App.) 
 
 (29 N. E. Rep. 246) 143 
 
 Pollitt v. Long (N. Y.) (58 Barb. 20) m 
 
 Pollock v. Cleveland Shipbuilding Co. 
 
 (Sup.) (47 N. E. Rep. 582) 238,244 
 
 Polly v. Saratoga & W. R. Co. (9 Barb. 
 
 449) 353, 755 
 
 Poison v. Ingram (22 S. C. 541) 642 
 
 Pomeroy v. Mills (3 Vt. 279) 705 
 
 Pomroy v. Granger (R. I.) (29 Atl. Rep. 
 
 690) 32 1 , 334 
 
 Pond v. Minnesota I. Co. (C. C.) (58 Fed. 
 
 Rep. 448) 410 
 
 Ponet v. Wills (Cal.) (48 Pac. Rep. 483).. 611 
 
 Pope v. Kinman (54 Cal. 3) 71 
 
 Porter v. Carpenter (Fla.) (21 So. Rep. 788) 703 
 
 v. Durham (74 N. C. 767) 101,271 
 
 v. Pittsburg Steel Co. (122 U. S. 267).. 8 
 
 Port Huron v. Chadwick (52 Mich. 320) 705 
 
 Portis v. Hill (14 Tex. 69) 530 
 
 Port Jervis W. Co. v. Port Jervis (N. Y. 
 
 App.) (45 N. E. Rep. 388) 148 
 
 Portland, etc., R. Co. v. York Co. (65 
 
 Me. 293) 752 
 
 Post v. Pearsall (N. Y.) (22 Wend. 425). 702, 704 
 Postal Tel. Cable Co. v. Eaton (49 N. E. 
 
 815 
 
 Va. 920).. 818 
 v. Norwalk, etc., R. Co. (87 Va. 
 
 349) 825 
 
 Potomac Steamboat Co. v. Upper P. L. 
 
 Co. (109 U. S. 672) 53 
 
 Potter v. Froment (47 Cal. 165) 222 
 
 v. Ind., etc., R. Co. (95 Mich. 389), 
 
 Potts v. Gilbert (3 Wash. C. C. 475).. W 687 
 Pottstown Gas. Co. v. Murphy (39 Pa. St. 
 
 257) 264 
 
 Poughkeepsie G. Co. v. Citizens' G. Co. 
 
 (27 N. Y. Super. Ct. 214) 844 
 
 Power v. Harlow (57 Mich, in) 2 
 
 Powers v. Dennison (30 Vt. 752) 8 
 
 v. St. Louis Ry. Co. (71 Mo. App. 540 
 
 [1897]) 105 
 
 Prairie State v. Sharp (67 111. App. 477).. 223 
 Pratt v. Brown (Mich.) (64 N. W. Rep. 
 
 v. Lamson (Mass.) (2 Allen 284).. 406, 431 
 
 v. Woodward (32 Cal. 227) 603 
 
 Prefontaine v. McMicken (Wash.) (36 
 
 Pac. Rep. 1048) 343 
 
 Prentice v. Duluth S. & F. Co. (C. C. A.) 
 
 (58 Fed. Rep. 437) 410 
 
 Presnell v. Garrison (N. C.) (29 S. E. Rep. 
 
 839 [1898]) 495 
 
 v. Headley (Mo.) (43 S. W. Rep. 378 
 
 [1897]) 552 
 
 Preston v. Bowman (6 Wheat. 580 [1821]). 586 
 Prewitt v. Graves (Ky.) (35 S. W. Rep. 
 
 263) 677 
 
 Price v. Case (10 Conn. 375) 8 
 
 v. Church (4 Ohio 515) 708 
 
 v. Hallett (Mo.) (38 S. W. Rep. 451), 
 
 377, 380 
 
 v. Riverside L. & I. Co. (56 Cal. 431) 73 
 
 v. Thompson (48 Mo. 363) 702,708 
 
 Priestly v. Johnson (67 Mo. 632) 8 
 
 Priewe v. Wis., St. L. Imp. Co. (Wis.) (67 
 
 N. W. Rep. 918) 54,424 
 
 Prince v. Case (10 Conn. 375) 8 
 
 Prior v. Comstock (17 R. I. i) 53 
 
 Probett v. Jenkinson (Mich.) (63 N. W. 
 
 Rep. 648) 583 
 
 Proctor v. Jennings (6 Nev. 83) 75, 90 
 
 v. Lewiston (25 111. 153) 703 
 
TABLE OF CASES. 
 
 liii 
 
 Prompelly v. Green Bay C. Co. (U. S.) 
 
 . 
 
 ipelly 
 
 (13 Wall. 166) 143 
 
 Proprietors v. Inhabitants (Mass.) (32 N. 
 
 E. Rep. 153) in 
 
 v. Nashua, etc., R. Co. (104 Mass, i) 754 
 
 v. Ransom (14 Mass. 144) 573 
 
 Proprietors Me. Wharf v. Proprietors of 
 
 C. H. Whf. (27 Atl. Rep. 93, 85 Me. 
 
 175) 387 
 
 Prouty v. Tilden (164 111. 163) 445 
 
 Providence Bank v. Billings (U. S.) (4 Pet. 
 
 Providence G. Co. v. Thurber (2 R. I. 15), 
 
 844, 847 
 Provins v. Lovi (Okl.) (50 Pac. Rep. 81 
 
 [1891]) 407 
 
 Provolt v. Chicago, etc., R. Co. (57 Mo. 
 
 256) 74i 
 
 Prudden v, Lindsley (29 N. J. Eq. 615)... 704 
 Pry v. Mankedic (Pa.) (34 Atl. Rep. 46)... 703 
 P. S. & P. R. Co. v. Saco (60 Me. 196)... 5 
 Purington v. Northern 111. R. Co. (46 111. 
 
 297) 735 
 
 Putnam v. Bond (100 Mass. 58) 550, 551 
 
 Pyle v. Richards (17 Neb. 180) 1720 
 
 Q. 
 
 Buicksall v. Philadelphia (177 Pa. 301) 709 
 uigley v. Birdseye (Mont.) (28 Pac. Rep. 
 
 741) 57 
 
 Quillen v. Betts (Del.) (39 Atl. Rep. 595 
 [1897]) 3 I2 > 573. 588, 601 
 
 Buincy v. Jones (76 111. 231) 325 
 uincy, etc., R. Co. v. Kellogg (54 Mo. 
 
 334) 752 
 
 Quinn v. Chicago, B. & Q. Ry. Co. (63 
 
 Iowa 510 [1884]) 269,272 
 
 v. Egleston (108 111. 248 [1883]) 620 
 
 Buinton v. Burton (61 Iowa 471) 319 
 uirk v. Falk (47 Cal. 453) 77 
 
 R. 
 
 Railroad v. Goodwin (in 111. 273) 6 
 
 Railroad Co. v. Carr (38 Ohio St. 448).... 106 
 v. Cleary (17 Atl. Rep. 468, 125 Pa. St. 
 
 442) 850 
 
 v Houghton (126 111. 232) 535 
 
 v. Patch (28 Kan. 470) 707 
 
 v. Schurmeir (7 Wallace 272 [1868]), 
 
 164, 378, 410 
 
 v. Ramsey (53 Ark. 314) 414 
 
 Rains v. Rains (Ky.) (20 S. W. Rep. 1099) 408 
 Ramelli v. Irish (Cal.) (31 Pac. Rep. 41), 
 
 74. 105 
 Ramgren v. McDermott (Minn.) (76 N. 
 
 W. Rep. 47) 243 
 
 Ramsey v. Ogden (Oreg.) (31 Pac. Rep. 
 
 778) .. 
 
 Rand v. Cartwright (Tex.) (18 S. W. Rep. 
 794) 
 
 502 
 587 
 
 Randall v. Burk Tp. (S. D.) (70 N. W. 
 
 Rep. 837) 579 
 
 v. Sanderson (in Mass. 114 [1872])... 522 
 
 Randolph v. Bloomfield (77 la. 50) 223 
 
 v. Casey (W. Va.) (27 S. E. Rep. 231) 688 
 
 v. Dobson (Com. PI.) (u Montg. Co. 
 
 Law Reptr. 197) 202 
 
 .Rapley v. Klugh (S. C.) (18 S. E. Rep. 
 
 680) 556 
 
 Rapp v. City, etc., R. Co. (12 Wkly. L. 
 
 Bull. 119) 790 
 
 Rarick v. Smith (Com. PI.) (17 Pa. Co. Ct. 
 
 Rep. 627) 218 
 
 Rasdell v. Shumway (Kan. App.) (49 Pac. 
 
 Rep. 631, 51 Pac. Rep. 285 [1897]) 502,504 
 
 Ratcliff v. Burleson (Tex.) (25 S. W. Rep. 
 
 983, 26 S. W. Rep. 1003) 573,579586,588 
 
 Rath v. Zimbleman (Neb.) (68 N. W. Rep. 
 
 488) 179 
 
 Rathbun v, Geer (64 Conn. 421) 499, 60 1 
 
 Rawson v. Ward (128 Mass. 552) 311 
 
 Ray v. Pease (Ga.) (22 S. E. Rep. '190) 633 
 
 Rayburn v. Winant '(Ore.) (18 Pac. Rep. 
 
 588 [1888]) 408 
 
 Raymond v, Coffey (5 Ore. 132 [1873]), 
 
 S3, 550, 571, 573. 588, 612 
 (31 Pac. Rep. 
 
 537) 108 
 
 Raynor v. Timerson (N. Y.) (51 Barb. 
 
 517) 499 
 
 Razzo v. Varni (Cal.) (22 Pac. Rep. 848).. 1720 
 Reast v. Donald (Tex. Sup.) (19 S. W. 
 
 Rep. 795) 612 
 
 Redd -v. Murry (Cal.) (30 Pac. Rep. 132).. 613 
 Redfield v. Parks (132 U. S. 239 [1889]). .533, 682 
 Redlands Water Co. v. Redlands (Cal.) 
 
 (53 Pac. Rep. 843 [1898]) 151 
 
 Redmond v. Mullenax (N. C.) (18 S. E. 
 
 Rep. 708) 618 
 
 Red River R. Mills v. Wright (30 Minn. 
 
 249) 208 
 
 Reed v. Knights (87 Me. 181) 587,603 
 
 v. McCourt (35 N. Y. 113, 41 N. Y. 
 
 435 [1869]) 449, 501 
 
 v. Phillips (Tex.) (33 S. W. Rep. 986) 597 
 
 v. Reed (93 N. C. 462 [1885]) 546 
 
 v. Spicer (27 Cal. 57) 77 
 
 v. State (108 N. Y. 407 [1888]) 274 
 
 Reformed Church v. Schoolcraft (65 N. Y. 
 
 134 [1875]) 687 
 
 Regina v. Betts (Eng.) (44 Cox (C. C.) 211) 233 
 
 v. Met. Bd. Wks. (3 B. & S. 710) 255 
 
 v. Patrie (30 Eng. Law & Eq. 207).... 706 
 
 v. United Kingdom Tel. Co. (9 Cox 
 
 (C. C.) 171) 812 
 
 Reid v. Bd. of Ed. of Edina (73 Mo. 295 
 
 [1880]) 706 
 
 v. Reid (Cal.) (44 Pac. Rep. 564) 252 
 
 Reimer v. Stuber (20 Pa. St. 458) 528,703 
 
 Reiner v. Young (N. Y.) (16 N. E. Rep. 
 
 368 [1888]) 676 
 
 Reinhar,t v. Mautasti (61 L. T. N. S. 328) 302 
 Reisback v. Carson (Wash.) (13 Pac. Rep. 
 
 618 [1887]) 551 
 
 Reiter v. Mcjunkin (Pa. Sup.) (33 Atl. 
 
 Rep. 1012) 501 
 
 Relyea v. Bacon (34 Barb. 547) 314 
 
 Remington v. Millerd (i R. I. 93) 703 
 
 Rend v. Venture Oil Co. (Cir. Ct.) (48 
 
 Fed. Rep. 248) 284 
 
 Renier v. Slater (20 Pa. St. 458) 688 
 
 Reno S. M. & R. v. Stevenson (Nev.) (4 
 
 Law Rep. 60 [1889]) 72,75 
 
 Requa v. Rochester (45 N. Y. 129) 706 
 
 Rerick v. Kern (Pa.) (14 S. & R. 267) 662 
 
 Resser v. Davis (Iowa) (69 N. W. Rep. 
 
 524) 178 
 
 Reusens v. Lawson (Va.) (21 S. E. Rep. 
 
 347) 516, 628 
 
 Rex v. Gunder (2 Camp. 89) 237 
 
 v. Hudson (2 Strange 909 [1732]) 701 
 
 v. Leake (5 B. & Adolph. 469) 704,706 
 
 v. Lyon (5 Dow. & Ry. 499) 706 
 
 Reynolds v. Boston Rub. Co. (Mass.) (35 
 
 N. E. Rep. 677) 542 
 
 v. Clark (2 Ld. Raym. 1399) 183 
 
 Reysen v. Roote (Wis.) (66 N. W. Rep. 
 
 599) 166 
 
 Rhea v. Newport Co. (Cir. Ct.) (50 Fed. 
 
 Rep. 16) 116 
 
 Rhodes v. Otis (33 Ala. 578) 234,666 
 
 Ribordy v. Murray (70 111. App. 527 [1897]) 178 
 
 Rice v. Munroe (36 Me. 309) 401 
 
 v. Ruddiman (10 Mich. $25) 424 
 
 Rich v. Keshena Imp. Co. (56 Wis. 287)... 87 
 v. Minneapolis (37 Alb. Law Jour. 58 
 
 Richard v. ' ' Hupp' ' (Cal.)' ' (37 Pac'. ' ' Rep'. 
 
 920) 675 
 
 Richards v. Rose (24 E. L. & Eq. 406; s.c., 
 
 9 Exch. 218) 327 
 
 Richardson v. Kier (34 Cal. 63, 263; 37 Cal. 
 
 263) 75, 85 
 
 v. Pavell (Tex.) (19 S. W. Rep. 262).. 559 
 
liv 
 
 TABLE OF CASES. 
 
 Richardson v. V. C. R. Co. (25 Vt. 465, 471) 327 
 
 Richart % Scott (Pa.) (7 Watts 460) 327 
 
 Richer v. Barry (34 Me. 116) 545 
 
 v. Hubbard (73 Me. 105) 518 
 
 Richmond, City of, v. Test (Ind.) (48 N. E. 
 
 Rep. 610 [1897]) 205 
 
 Richmond Mfg. Co. v. Atl. De Laine Co. 
 
 (10 R. I. 106) 216 
 
 Richmond, etc., R. Co. v. Durham (104 N. 
 
 C. 658) 741 
 
 Richwine v. Jones (Ind.) (39 N. E. Rep. 
 
 460) 590 
 
 v. Presby. Ch. (Ind.) (34 N. E. Rep. 
 
 737) 621 
 
 Ricker v. Hubbard (73 Me. 105) 518 
 
 Riddle's Ex'rs v. Delaware County (Pa. 
 
 Sup.) (27 Atl. Rep. 569) "4 
 
 Ridgeway v. Ludlow (58 Ind. 248) 421 
 
 Rieman v. Baltimore, etc., Co. (Md.) (31 
 
 Atl. Rep. 444) 45i 
 
 Rigby v. Bennett (21 Ch. D. 559; s.c., 40 
 
 L. T. 47) 325 
 
 Rigdon v. Temple W.-w. Co. (Tex.) (32 S. 
 
 W. Rep. 828) 88,144 
 
 Riggs v. Myers (20 Mo. 439) S5 8 
 
 v. Riggs (135 Mass. 240 [1883]) 408 
 
 v. Riley (Ind.) (15 N. E. Rep. 253 
 
 [1888]) 503 
 
 ' v. Tacoma Lt. & W. Co. (Wash.) 
 
 fffc 
 
 (38 Pac. Rep. 147) 104, 1720 
 
 Riley v. Griffin (16 Ga. 141) 518 
 
 Rioux v. Cormier (Wis.) (44 N. W. Rep. 
 
 654) , 587, 590 
 
 Riseden v. Harrison (Tenn.) (42 S. W. 
 
 Rep. 884) 631 
 
 Risiem v. Brown (Tex.) (10 S. W. Rep. 
 
 661) 662 
 
 Ritchey v. Welsh (Ind.) (48 N. E. Rep. 
 
 1031 [1898]) 715 
 
 Ritger v. Parker (8 Cush. 145) 645 
 
 Riverside Water Co. v. Sargent (Cal.) (44 
 
 Pac. Rep. 560) : 75 
 
 Roake v. Amer. Tel. Co. (41- N. J. Eq. 35), 
 
 814, 
 
 817 
 
 Roanoke I. Co. v. Kansas City, etc., R. 
 
 Co. (Mo. Sup.) (17 S. W. Rep. 1000).... 650 
 
 Roarty v. Mitchell (7 Gray 243) 45 
 
 Roath v. Driscoll (20 Conn. 533) 262 
 
 Robb v. Village of La Grange (111. Sup.) 
 
 (42 N. E. Rep. 77) 205 
 
 Robbins v. Dewhurst (C. C. A.) (68 Fed. 
 
 Rep. 336) 629 
 
 Robert v. Powell (52 N. Y. Supp. 918).... 306 
 Roberts v. Baumgarten (N. Y.) (18 N. E. 
 
 Rep. 96 [1889]) 422 
 
 v. Brooks (C. C.) (71 Fed. Rep. 914) 7 
 
 v. Easton (19 Ohio St. 78) 7^9,797 
 
 v. Helms (Tex.) (20 S. W. Rep. 
 
 1004) 572 
 
 v. Preston (N. C.) (10 S. E. Rep. 983) 612 
 
 v. Sadler (104 N. Y. 229 [1887]) 442 
 
 v. West. Un. Tel. Co. (77 Wis. 589)... 826 
 
 Robertson v. Commonwealth (Ky.) (40 S. 
 
 W. Rep. 920) 242 
 
 v. Mooney (Tex.) (21 S. W. Rep. 143) 572 
 
 Robinson v. Allison (Ala.) (12 So. Rep. 
 
 382, 19 So. Rep. 837) 5i6,547 
 
 v. Black D. C. Co. (57 Cal. 412) 217 
 
 v. Clapp (65 Conn. 365) 308,314,341 
 
 v. Grave (27 L. T. 248, affirming 29 L. 
 
 ' v. imperial Silver Mfg. Co. (5 Nev. 
 
 44) 75, 77 
 
 v. Laurer (Or.) (40 Pac. Rep. 1012). 573, 579 
 
 v. Stewart (n MacPh. (Sc.) 189) 202 
 
 Roby v. Yates (Sup.) (23 N. Y. Supp. 
 
 1108) 754 
 
 Rochester Sav. Assn. v. Gorman (Sup.) (47 
 
 N. Y. Supp. 81 [1897]) 442 
 
 Rockland W. Co. v. Adams (84 Me. 472)..- 151 
 
 Rockwell v. Baldwin (53 111. 19) 406 
 
 Rocky Mt. Teleph. Co. v. Salt Lake City 
 
 Ry. Co. (Utah) (3 Amer. El. Cas. 350, 
 
 356) 285,831 
 
 Roe v. Strong (N. Y.) (14 N. E. Rep. ' 
 
 294 [1888]) 623: 
 
 Roecker v. Haperla (Mo.) (39 S.' W. Rep. 
 
 454) 504 
 
 Roeder v. Stein (Nev.) (42 Pac. Rep. 867) 75 
 Roehl v. Haumier (Ind.) (37 S. W. Rep. 
 
 345 [1888]) 555 
 
 Rogers v. Carrothers (26 W. Va. 238, 246) 485 
 v. Coal R. B. & D. Co. (W. Va.) (23 
 
 S. E. Rep. 919) 85, 137 
 
 v. Gillinger (Penn.) (6 Amer. Law 
 
 Reg. 430 [1858]) 8 
 
 v. Concho C. Co. (Tex.) (38 S. W. 
 
 Rep. 656) 600 
 
 v. Mexis (Tex.) (36 S. E. Rep. 825)... 617 
 
 v. Taylor (2 H. & M. 828) 334 
 
 Rogerson v. Shepherd (10 S. E. Rep. 632).. 715 
 
 Rome v. Cabot (28 Ga. 50) 142 
 
 v. Portsmouth (56 N. H. 291) 215 
 
 Rome G. L. Co. v. Meyerhardt (61 Ga. 287) 844 
 Rook v. Greenwalt (Com. PI.) (17 Pa. Co. 
 
 Ct. Rep. 642) 576 
 
 Root v. Cincinnati (la.) (54 N. W. Rep. 
 
 206) 467, 492, 573 
 
 v. Johnson (26 Vt. 64 [1853]) 63,75,382 
 
 Rose v. St. Charles (49 Mo. 509) 85 
 
 Rosenberger v. Miller (i Mo. App. Rep. 
 
 640) 706 
 
 Ross v. Butler (19 N. J. Eq. 294) 267 
 
 v. Faust (54 Ind. 471) 421,423. 
 
 v. McCain (Mo.) (46 S. W. Rep. 955) 533 
 
 Roswand v. Anderson (33 Kan. 264) 8- 
 
 Rotch v. Livingston (Me.) (40 Atl. Rep. 426 
 
 [1898]) 716 
 
 Rothery v. N. Y. Rubber Co. (N. Y.) (24 
 
 Hun 172) 86 
 
 Roushlange v. Chicago, etc., R. Co. (Ind.) 
 
 (17 N. E. Rep. 198 [1888]) 334 
 
 Rowe v. Granite Bdge. Co. (Mass.) (21 
 
 Pick. 344) 113 
 
 Rowell v. Doyle (131 Mass. 474) 165 
 
 Rowland v. Miller (Super.) (18 N. Y. Supp. 
 
 205) 633 
 
 Roxbury v. Stoddard (Mass.) (7 Allen 158) 240 
 Rucker v. Athens Mfg. Co. (54 Ga. 84).... 85 
 Rudel v. Los Angeles Co. (50 Pac. Rep. 
 
 400) 136, 184 
 
 Rugg v. Ward (Vt.) (23 Atl. Rep. 726).... '631 
 Rumsey v. New York, etc., R. Co. (N. Y. 
 
 App.) (30 N. E. Rep. 654) 195 
 
 v. Railroad Co. (114 N. Y. 423) 413 
 
 Runion v. Alley (Ky.) (39 S. W. Rep. 849) -406 
 Rupert v. Penner (Neb.) (53 N. W. Rep. 
 
 598) 555 
 
 Rupley v. Welch (23 Cal. 452) 77 
 
 Russell v. Hubbard (59 HI. 335) 666 
 
 v. State (3 Coldw. (Tenn.) 119) 703 
 
 Rutherford v. Holly (N. Y.) (n N. E. 
 
 Rep. 818 [1887]) 190 
 
 v. Taylor (38 Mo. 415) 708 
 
 Rutz v. Kehr (111. Sup.) (29 N. E. Rep. 
 
 553) <. 378 
 
 Ryan v. M. V. & S. I. R. Co. (62 Miss. 162 
 
 [1884]) 681, 685 
 
 v. Wilson (9 Mich. 262) 553 
 
 Ryckman v. Gillis (157 N. Y. 68) 334 
 
 Ryder v. Dodge (N. Y.) (14 Wk. Dig/ 84 
 
 [1882]) 469 
 
 v. Loomis (Mass.) (36 N. E. Rep. 836) 552 
 
 Rylands v. Fletcher (L. R. 3 H. L. Cas. 
 330) 2 ? 2 
 
 Sabine v. Johnson (35 Wis. 185)............ 90 
 
 Sachs v. Cordes (u Ohio Cir. Ct. Rep. 
 
 I45 ) 646, 711 
 
 Saddler v. Lee (66 Ga. 45) 2 59 
 
 Sadtler v. Peabody Co. (66 Md. i [1886]).. 521 
 Sage v. City of New York (41 N. Y. Supp. 
 
 938, 154 N. Y. 61 [1897]) 381,413 
 
 -. Larson (Minn.) (71 N. W. Rep. 923) 521 
 
TABLE OF CASES. 
 
 Iv 
 
 v. Morosick (Minn.) (71 N. W. Rep. 
 
 930 ) 521 
 
 Saint v. Guerrerio (Colo. Sup.) (30 Pac. 
 
 Saint C., County of, v. Livingston (23 Wall. 
 
 46) 377 
 
 St. Anthony Falls Water-power Co. v. 
 
 Board of Water Commrs. (18 Sup. Ct. 
 
 Rep. 157, 158 U. S. 349) 147,231,234,243 
 
 St. Bede College v. Weber (168 111. 324), 
 
 497, 498, 500 
 St. Joseph Co. v. South Bend, etc., R. Co. 
 
 (118 Ind. 68) 787 
 
 St. Julian v. Morgan, etc., R. Co. (35 La. 
 
 Ann. 924) 665 
 
 St. Helens S. Co. v. Tipping (11 H. L. 
 
 Cas. 642) 214 
 
 St. Louis v. Gorman (29 Mo. 593) 526 
 
 v. Heitzeberg Packing & Provision Co. 
 
 (4* S. W. Rep. 954) 34 
 
 -u. Mo. Pac. R. Co. (Mo.) (21 S. W. 
 
 Rep. 202) 372,379,613 
 
 v. Rutz (138 U. S. 245) 431 
 
 St. Louis, etc., Ry. Co. v. Craigo (Tex.) 
 
 (31 S. W. Rep. 207) 192 
 
 v. Ellis (58 111. App. no) 114 
 
 v. Harris (47 Ark. 340) 115 
 
 v. Schneider (30 Mo. App. 820) 172 
 
 St. L. University v. McCune (28 Mo. 481) 518 
 St. Paul v. Chicago, etc., Ry. Co. (Minn.) 
 
 (63 N. W. Rep. 267) 756 
 
 St. Paul & D. R. Co. v. Duluth (Minn.) 
 
 (58 N. W. Rep. 159, 76 N. W. Rep. 35), 
 
 178, 186, 536 
 St. Paul, etc., R. Co. v. Schurmeir (7 Wall. 
 
 (U. S.) 272, 288) 238 
 
 St. Tammany W. W. v. New Orleans W. 
 
 W. (120 U. S. 64) 147 
 
 St. Vincent Asy. v. Troy (76 N. Y. in) 721 
 
 Salazer v. New York & H. R. Co. (49 N. 
 
 Y. Supp. 1065 [1897]) 72i 
 
 Salter v. Jones (39 N. J. Law 469) 447,449 
 
 v. Sample (71 111. 430) 6 
 
 San Antonio, etc., Ry. Co. v. Mohl (Tex.) 
 
 (37 S. W. Rep. 22) 194 
 
 Sanchez v. Grace M. E. Church (Cal.) (46 
 
 Pac. Rep. 2) 545 
 
 Sanders v. Logue (12 S>W. Rep. 722).... 687 
 v. Riedinger (Sup.) (43 N. Y. Supp. 
 
 127); s.c., 51 N. Y. Supp. 937 [1898]). 522, 529 
 Sanderson v. Penn. Coal (86 Pa. St. 401) . . 202 
 San Diego W. Co. v. San Diego (Cal.) (50 
 
 Pac. Rep. 633, 693 [1897]) 151 
 
 Sands v. Manistee River Imp. Co. (123 U. 
 
 S. 288) 245 
 
 San Francisco v. Calderwood (91 Am. Dec. 
 
 542) 70S 
 
 v. Fulde (37 Cal. 349) 687 
 
 San Luis W. Co. v. Estrada (Cal.) (48 
 
 Pac. Rep. 1075) 75 
 
 Santa Cruz v. Enright (Cal.) (30 Pac. Rep. 
 
 197) '143 
 
 Santa Paula Water-works v. Peralta (Cal.) 
 
 (45 Pac. Rep. 168) 75 
 
 Sargeant v. Bank (12 How. (U. S.) 371) 701 
 
 Sargent v. Adams (3 Gray 72) 550,554 
 
 Saunders v. Bluefield W. & I. Co. (C. C.) 
 
 (58 Fed. Rep. 133) 54, 58 
 
 - v. New York Cent. & H. R. R. Co. 
 
 (N. Y. App.) (38 N. E. Rep. 992) 381 
 
 v. Simpson (Tenn.) (37 S. W. Rep. 
 
 195) 688 
 
 Savannah, etc., R. Co. v. Lawton (75 Ga. 
 
 192) 131 
 
 v. Shiels (33 Ga. 601) 745 
 
 Sawyer v. Kendall (10 Cush. 241).. 573,687 
 
 Saxton v. Hunt (20 N. J. Law 487) 533 
 
 Sayers v. Lyons (no Iowa 249 [1859]) 582 
 
 Scates v. Henderson (S. C.) (22 S. E. Rep. 
 
 Schaeffer 'v. ' Mi'ehling' '(Super.') ' (34' N'.' S Y.' 33 
 
 Supp. 693) 339 
 
 Schaffer v. Hauser (Mich.) (70 N. W. Rep. 
 
 136) 
 
 533 
 
 Schall v. Wins. R. R. (35 Pa. St. 191) 514 
 
 Scheible v. Hart (Ky.) (12 S. W. Rep. 628) 504 
 
 Schenely v. Com. (36 Pa. St. 29) 704 
 
 Schilling v. Rominger (4 Colo. 100) 75, 
 
 Schlag v. Jones (131 Pa. St. 62) 51 
 
 Schky v. Blum (Tex. Civ. App.) (22 S. 
 
 W. Rep. 264) 628 
 
 Schlichter v. Phillipy (67 Ind. 201) 136, 
 
 Schlosser v. Crookshank (Iowa) (65 N. W. 
 
 Rep. 344) 410, 421 
 
 Schoen v. Kansas City (65 Mo. App. 134), 
 
 101, 116 
 
 School Dist. v. Benson (31 Me. 381) 514 
 
 School Dist. of Johnson Co. v. Hart (28 
 Pac. Rep. 741) 707 
 
 School Trustees v. Schroll (120 111. 59, 509), 
 
 235, 421 
 
 Schrack v. Zubler (34 Pa. St. 38) 687 
 
 Schriver v, Johnston (N. J.) (71 Hun 232) 220 
 Schultz v. Bower (Minn.) (66 N. W. Rep. 
 
 139) 321, 330 
 
 Schulz v. Sweeny (19 Nev. 359) 75,76- 
 
 Schuman v. Homestead (i Cent. Rep. 914) 705 
 Schuster v. Albrecht (Wis.) (73 N. W. Rep. 
 
 990) 274 
 
 Scott v. Chicago (U. S.) (i Biss. 510) 240 
 
 v. Des Moines (64 Iowa 438) 7O& 
 
 v. Means & Russell Iron Co. (Ky.) (19 
 
 S. W. Rep. 189) 493,628 
 
 v. Weisburg (Tex. Civ. App.) (21 S. 
 
 W. Rep. 769) 633. 
 
 v. Wilson (3 N. H. 321) 243, 
 
 Scranton v. Wheeler (C. C. A.) (57 Fed. 
 
 Rep. 803) 412, 414, 
 
 v. (Mich.) (71 N. W. Rep. 1091).. 241 
 
 1091) 241 
 
 Scrivner v. Smith (100 N. Y. 471) 55. 
 
 Scudder v. Detroit (Mich.) (75 N. W. 
 
 Rep. 286 [1898]) 455 
 
 Scull v. United States (98 U. S. 410 
 
 [1878]) 546 
 
 Seaman v. Hogeboom (N. Y.) (21 Barb. 
 
 298, 404) 603. 
 
 v. Lee (N. Y.) (10 Hun 607) 20^ 
 
 [1888]) 166- 
 
 v. Smith (24 111. 521) 421 
 
 Scarce v. Gardner (Pa.) (13 Atl. Rep. 835 
 
 [1888]) 166 
 
 Sears v. Stinson (Wash.) (29 Pac. Rep. 
 
 205) 590 
 
 Sebastian v. Reeion (Ky.) (29 S. W. Rep. 
 
 23) 49S 
 
 Seebolt v. Shitler (34 Pa. St. 133) 708 
 
 Seely v, Alden (61 Pa. St. 302) 214,222,223 
 
 Sen v. Rehling (Tex.) (29 S. W. Rep. 
 
 1114) 573 
 
 Senior v. Anderson (Cal.) (47 Pac. Rep. 
 
 Settegast "v." CharpioV ' (Tex*.) " (28 ' s! ' W. 
 
 Rep. 580) 622 
 
 Settlers' Ditch Co. v. Hayes (Cal.) (22 Pac. 
 
 Rep. 1152) 75 
 
 Sewall Cord. Co. v. Bolton W. P. Co. 
 
 (Mass.) (16 N. E. Rep. 782, 147 Mass. 61 
 
 [1888]) 376 
 
 Sexton v. Hollis (26 S. E. Rep. 236) 620 
 
 Shaffer v. Hahn (N. C.) (15 S. E. Rep. 
 
 1033) 498 
 
 Shahan v. Alabama R. Co. (Ala.) (22 So. 
 
 Rep. 449, 509) 114,119,137 
 
 Shane v. Kansas City, etc., R. Co. (71 Mo. 
 
 237 [1879]) 173, 176, i77 178, 192 
 
 Sharp v. Blankenship (Cal.) (21 Pac. Rep. 
 
 842) 625 
 
 Sharrock v. Ritter (Tex.) (45 S. W. Rep. 
 
 156 [1898]) 522 
 
 Shaughnessey v. Leary (Mass.) (38 N. E. 
 
 Rep. 197) 681 
 
 Shaw v. San Diego W. Co. (Cal.) (50 Pac. 
 
 Rep. 693) 151 
 
 v. Susq. Boom Co. (125 Pa. St. 324).... 85 
 
 Sheffield v. Cent. Un. Tel. Co. (36 Fed. 
 
 Rep. 164) 817,826 
 
 Shelbyville Tpk. Co. v. Green (99 Ind. 205) 134 
 
Ivi 
 
 TABLE OF CASES. 
 
 Sheldon v. Atkinson (Kan.) (16 Pac. Rep. 
 
 68 [1888]) ................................ 499, 502 
 
 Sheldon Bank v. Royce (Iowa) (50 N. W. 
 
 Rep. 986) ........................... . ....... 338 
 
 Shellhouse v. State (Ind.) (n N. E. Rep. 
 
 484 [1887]) ..... ........................ 684,703 
 
 Shenango, etc., R. Co. v. Braham (79 Pa. 
 
 St. 447) ... ................................. 194 
 
 Shepard v. Galveston, H. & H. R. Co. 
 
 (Tex. Civ. App.) (22 S. W. Rep. 267).... 526 
 Sheppard v. Galveston, H. & H. R. Co. 
 
 (Tex.) (22 S. W. Rep. 267) ................ 533 
 
 Sherman v. Fall River Co. (Mass.) (5 Allen 
 
 213) ..................................... 264, 849 
 
 - v. State (Ala.) (17 So. Rep. 103) ..... 498 
 
 - v. Williams (ii3*Mass. 481) ............. 336 
 
 Sherwood v. Commissioner (Mich.) (71 N. 
 
 W. Rep. 532) .............................. 431 
 
 - v. Seaman (2 Bosw. 127 [1857]) ........ 324 
 
 - v. Whiting (Conn.) (8 Atl. Rep. 80 
 [1887]) ..................................... 550 
 
 Shields v. Arndt (4 N. J. Eq. 246) ........ 1720 
 
 - w.'Horback (Neb.) (68 N. W. Rep. 524) 516 
 524) ........................................ 516 
 
 - v. Orr Ex. Ditch Co. (Nev.) (47 Pac. 
 Rep. 194) ................................... 274 
 
 Shiveley v. Cedar Rapids, etc., R. Co. (74 
 la. 170) ..................................... 223 
 
 Shively v. Hume (10 Oreg. 76) .......... 71,259 
 
 Shoemaker v. Hatch (13 Nev. 261) ...... 73,77 
 
 Shook v. Colohan (12 Oreg. 239) .......... 71 
 
 Shotwell v. Dodge (8 Wash. 337) ............ 81 
 
 Show v. Whitehead (27 Ch. Div. 588)....,. 272 
 
 Shrieve v. Stokes (8 B. Mon. 453) ...... 527,333 
 
 Shriver v. Shriver (86 N. Y. 57) ............ 529 
 
 [1858]) ....... 221 
 
 Sibley v. Holden (Mass.) (10 Pick. 249), 
 
 . . . 
 
 Shutter v. City (3 Phila. 228 
 
 Sieber v. Frink (7 Colo. 
 Siebrecht v. East River Gas 
 
 447. 
 
 148) ............ 75, 
 
 s Co. (47 N. Y 
 Supp. 262, 21 App. Div. 10). 
 
 76 
 
 Silver Creek Cem. Co. v. Union Lime & 
 Cem. Co. (Ind.) (35 N. E. Rep. 125).... 588 
 
 Silverer v. Hansen (Cal.) (20 Pac. Rep. 136 
 [1889]) 494, 495 
 
 Silver Peak Mines v. Valcada (C. C.) (79 
 Fed. Rep. 886) .' no 
 
 Simmons v. Cornell (i R. I. 519) 706 
 
 v. Toledo (s Ohio C. Ct. 124) 790 
 
 Simpkins' Admr. v. Wells (Ky.) (42 S. W. 
 
 Rep. 348 [1897]) 633 
 
 Simpson v. Blaisdell (85 Me. 199) 553 
 
 v. Downing (23 Wend. 316) 532, 686 
 
 v. Stillwater W. Co. (Minn.) (64 N. W. 
 
 Rep. 1144) 119 
 
 v. Williams (18 Nev. 432) 75 
 
 v. Wright (21 111. App. 67) 669 
 
 Sims v. Smith (7 Cal. 149) 86 
 
 Sinai v. Railway Co. (71 Miss. 547) 192 
 
 Single v. Schneider (24 Wis. 299) 320 
 
 Singleton v. Whitside (5 Yerg. (Tenn.) 36) 499 
 
 Sioux City Co. v. Wilson (50 la. 422) 735 
 
 Sioux City, etc., R. Co. v. Chicago, etc., 
 
 R. Co. (27 Fed. Rep. 770) 751, 754 
 
 Siskiyou Lumb. & Mer. Co. v. Rostel 
 
 (Cal.) (53 Pac. Rep. 1118) 303,308 
 
 Sisson v. Cummings (35 Hun 22, 106 N. Y. 
 
 56) 374 
 
 v. Hibbard (75 N. Y. 542) 8 
 
 Sizer v. Quinlan (Wis.) (52 N. W. Rep. 
 
 590) 711 
 
 Sizor v. Logansport (50 N. E. Rep. 377) 410 
 
 Skinker v. Hagsma (Mo.) (12 S. W. Rep. 
 
 659) 504 
 
 Skinner v. Wilder (38 Vt. Rep. 115), 
 
 313, 315, 316 
 Skull v. Glenister (16 C. B. (N. S.) 81 
 
 [1862]) 681 
 
 Slack v. Dawes (Tex.) (22 S. W. Rep. 
 
 io53> 5540 
 
 Slauson v. Goodrich T. Co. (75 N. E. Rep. 
 
 574) 613 
 
 v. Goodrich Transp. Co. (Wis.) (69 
 
 N. W. Rep. 990) 374,407,421 
 
 Sleeper v. Laconia (60 N. H. 201) 402^407 
 
 Sleight v. Kingston (N. Y.) (n Hun 594) 208 
 Sloan v. Thompson (Tex.) (23 S. W. Rep. 
 
 613) 562 
 
 Sloane v. Biemiller (34 Ohio State 492) 421 
 
 Smeberg v. Cunningham (Mich.) (56 N. 
 
 W. Rep. 73) 517 
 
 Smith v. Boone (Tex.) (19 S. W. Rep. 702), 
 
 v. Brooklyn (Sup.) (18 App. Div. '340,' 
 
 46 N. Y. Supp. 141) 62,254,255,272,275 
 
 v. Buffalo, City of (35 N. Y. Supp, 635) 706 
 
 v. Bullock (16 Vt. 592 [1844]) 469,501 
 
 v. Carlow (Mich.) (72 N, W. Rep. 22).. 243 
 
 v. Catlin Ld. & Imp. Co. (Mo.) (22 
 
 S. W. Rep. 1083) 583 
 
 v. Corbit (Cal.) (48 Pac. Rep. 725)... 61, 105 
 
 v. Cornett (Ky.) (38 S. W. Rep. 689), 
 
 620* 625 
 v. Cranford (Sup.) (32 N. Y. Supp. 
 
 375) 204 
 
 v. Fonds (64 Miss. 551) 243 
 
 v. Greene (Cal.) (41 Pac. Rep. 1022), 
 
 76, 143, 662 
 v. Hall (Iowa) (72 N. W. Rep. 427 
 
 [1897]) 731 
 
 v. Hamilton (20 Mich. 433 [1870]). . .492, 500 
 
 v. Hawkins (Cal,) (52 Pac. Rep. 139 
 
 [1898]) 75 
 
 v. Headeick (93 N. C. 210) 584,625 
 
 v. Horn (Pa.) (31 Atl. Rep. 1078) 572 
 
 v. Improvement Co. (Mo. Sup.) (22 
 
 S. W. Rep. 1084) 587 
 
 v. Inhabitants of Lincoln (Mass.) (49 
 
 N. E. Rep. 743 [1898]) 149 
 
 v. Johnson (C. C.) (71 Fed. Rep. 647) 383 
 
 v. Kinrick (7 Com. Bench 515) 515 
 
 v. Logan (18 Nev. 149) 76,77 
 
 v. McConathy (11 Mo. 518) 208 
 
 v. McDowell (111. Supp.) (35 N. E. 
 
 Rep. 141) 442 
 
 v. Metropolitan G. Co. (N. Y.) (12 
 
 How. Pr. 187) 846 
 
 v. Newell (U. S.) (86 Fed. Rep. 56 
 
 [1898]) 544, 55i, 601 
 
 v. North Canyon Water Co. (Utah) (52 
 
 77 
 
 Pac. Rep. 283 [i _. 
 
 v. O'Hara (43 Cal. 371)'. 75,77 
 
 v. Phila., etc., R. Co. (57 Fed. Rep. 
 
 903) 112 
 
 v. Public Schools (30 Mo. 294) 379 
 
 v. Rochester (92 N. Y. 463 [1883]), 
 
 143, 401, 406, 413, 421 
 
 v. (104 N. Y. 674) 108,241 
 
 v. Slocum (Mass.) (9 Gray 36) 447,45^ 
 
 v. Smith (34 Kans. 293) 704 
 
 v. State (N. Y.) (3 Zab. 130, 712) 703 
 
 v. Sweat (Me.) (38 Atl. Rep. 554 [1897]) 555 
 
 v. Wagoner (50 Wis. 155) 8 
 
 v. Youmans (Wis.) (70 N. W. Rep. 
 
 1115) 407, 424 
 
 v. Young (160 111. 163) 613 
 
 Smitzgabel v. Morseldine (Utah) (16 Pac. 
 
 Rep. 400 [1888]) 504 
 
 Snarr v. Granite C. & S. Co. (i Ont. 102) 323 
 
 Snodgrass v. Smith (13 Ind. 393 [1859]) 469 
 
 Snow v. Mt. Desert I. R. E. Co. (84 Me. 
 
 14) 406 
 
 v. Parsons (28 Vt. 459) 222 
 
 v. Williams (N. Y.) (16 Hun 458) 208 
 
 Snyder v. Ft. Madison St. Ry. Co. (Iowa) 
 
 (75 N. W. Rep. 179 [1898]) 814 
 
 v. Morris (Tex.) (38 S. W. Rep. 219) 601 
 
 Soape v. Doss (Tex.) (45 S. W. Rep. 387) 520 
 
 Solliday v. Johnson (38 Pa. St. 380) 237 
 
 Solomon v. Vintner Co. (4 H. & N. 585, 
 
 598) 325, 327 
 
 Sonder v. Jeffries (8 N. E. Rep. 288) 518 
 
 Sonnek v. Minnesota Lake (Minn.) (52 N. 
 
 W. Rep. 961) 546 
 
 Soukup v. Union Inv. Co. (Iowa) (51 N. 
 
 W. Rep. 167). 5540 
 
 Southern M. Co. v. Darnell (Ga.) (21 S. E. 
 
 Rep. 530 IQ 4 
 
TABLE OF CASES. 
 
 Ivii 
 
 Southern Minn. R. Co. v. Stoddard (6 
 
 Minn. 150) - . 745 
 
 So. Pac. Railroad Co. v. Dufour (95 Cal. 
 
 615) 254, 261 
 
 So. West. R. Co. v. So. Tel. Co. (46 Ga. 
 
 43) 812 
 
 Spacy v. Evans (Ind.) (48 N. E. Rep. 355 
 
 [1897]) 467 
 
 Spangler v, San Francisco (84 Cal. 17) 188 
 
 Sparhawk v. Bullard (Mass.) (i Mete. 95) 623 
 Sparlin v. Gotcher (Or.) (31 Pac. Rep. 
 
 399) 83, no 
 
 Spear v. Cook (8 Oreg. 380) 77 
 
 Spencer v. Hartford, etc., R. Co. (10 R. 1. 
 
 v'. Kilmer '(N.' Y.' App.' "(45 *N.' E. ' Rep. 
 
 865) in 
 
 Sperry v. Wesco (Oreg.) (38 Pac. Rep. 
 
 623) 598 
 
 Spofford v. Bennett (55 Tex. 293) 529 
 
 Spohn v. JDives (Pa. Sup.) (34 Atl. Rep. 
 
 192) 321 , 327 
 
 Spokane Mill Co. v. Bost (C. C.) (50 Fed. 
 
 Rep. 429) 243 
 
 Spottiswood v. Morris & E. R. Co. (N. J.) 
 
 (40 Atl. Rep. 505 [1898]) 685 
 
 Spradlin v. Spradlin (Ky.) (18 S. W. Rep. 
 
 14) 533 
 
 Sprague v. Worcester (Mass.) (13 Gray 193) 114 
 Spratt v. Livingston (Fla.) (14 So. Rep. 
 
 160) 5i6 
 
 Spring v. Hewston (52 Cal. 442) 499 
 
 Springfield v. Harris (Mass.) (4 Allen 496) 59 
 Springfield Water-works Co. v. Jenkins (i 
 
 Mo. App. Rep. 699) 271 
 
 Springfield, West, v. W. Springfield Aq. 
 
 Co. (Mass.) (44 N. E. Rep. 1063) 876 
 
 Spring Valley Water-works v. San Mateo 
 
 Water-works (28 Pac. Rep. 447, 64 Cal. 
 
 1 123) 143 
 
 Stamford v. Felt (Cal.) (16 Pac. Rep. 900 
 
 [1888]) 59 
 
 v. Stamford Horse R.' Co. (56 Conn. 
 
 381) - 797 
 
 Standart v. Round Val. W. Co. (77 Cal. 
 
 Standen v. New Rochelle W. Co. (Sup.) (36 
 N. Y. Supp. 92) 62 
 
 Stanley v. Weston Ins. Co. (L. R. 3 Ex. 
 71) 283 
 
 Stanus v. Smith (Tex.) (30 S. W. Rep. 262), 
 
 597, 617 
 
 Staples v. Dickson (88 Me. 362) 52, 145 
 
 Stark v. Coffin (105 Mass. 328 [1870]) 453 
 
 v. Homuth (Tex.) (45 S. W. Rep. 761 
 
 - v. Miller ' (Mich'.) ' (71 ' N! ' W. ' Rep'.' 876)', 
 
 378, 387 
 
 v. Spaulding (Ky.) (39 S. W. Rep. 234) 547 
 
 Wend. 149), 
 
 235, 373, 374, 407, 605 
 
 State v. Atkinson (24 Vt. 448) 702 
 
 v. Bell (34 Ohio St. 194) 789 
 
 v. Brown (27 N. J. Law 13) 736,871 
 
 v. Buck (La.) (15 So. Rep. 531)- -378, 388 
 
 v. Carpenter (2 N. H. 513) 702 
 
 v. Company (49 N. H. 240, 250) 421 
 
 v. Croker (S. C.) (27 S. E. Rep. 49).- 629 
 
 v. Davenport, etc., R. Co. (47 Iowa 507 
 
 8 v. 7] Eason '(N.' C.)' (19 S.' K Rep.' 
 
 v. Eau Claire (40 Wis. 533) X 43 
 
 v. Flad (23 Mo. App. 185) 813 
 
 v. Forrest (Mass.) (43 Pac. Rep. 51) . . . 618 
 
 v Freiberg (Ohio Sup.) (31 N. E. Rep. 
 
 v. Gillman (14 N. H. 476) 235 
 
 v. Gilmanton (9 N. H. 461,. 463) 421 
 
 881) 2 4, 209 
 
 v. Gilmarton (14 N. H. 467) 1720 
 
 v. Griffin (N. H.) (39 Atl. Rep. 260 
 
 J-t^Hoff (Tex.) ' (29" S.' W.' 'Rep.' '672) ! '. '. . 626 
 
 v. Horn (Kan.) (12 Pac. Rep. 148 
 
 [1887]) 68 3 
 
 . 
 Starr v. Child (20 
 
 721 
 234,411 
 
 State v. Hudson, etc., R. Co. (46 N. J. Law 
 
 289) 739 
 
 v. Indiana, etc., Gas, Oil, and Min. Co. 
 
 120 Ind. 579) 283 
 
 v. Kronert (Wash.) (43 Pac. Rep. 76) 222 
 
 v, Morris Eq. (26 N. J. L. 495) .. 143 
 
 v. Newark (N. J.) (40 Amer. & Eug. 
 
 Corp. Cas. 33 [1891]) 
 
 v. Newark (N. J.) (8 
 
 [1887]) 
 
 Atl. Rep. 128 
 
 v. Tichenor (51 N. J. L. 345). 
 v. Trask (6 Vt. 
 
 143 
 
 812 
 i;."busatonic W. Co. (51 Conn. 137).. 85 
 
 v. Pottmeyer (33 Ind. 402) 163, 164,166 
 
 v. Ramsey Co. (Minn.) (51 N. W. R.;p. 
 
 112 [1892]) 304 
 
 v. Schilb (47 la. 611) 680 
 
 v. Seymour (6 Vroom 47) 352 
 
 v. Strong (25 Me. 297) 703 
 
 v. Suttle (N. C.) (20 S. E. Rep. 725)... 521 
 
 v. Telephone Co. (36 Ohio St. 296).... 869 
 
 v. Thomas (Del.)_ (4_ Harr. 568) 703 
 
 Vt. 355) 706 
 
 v. Wilkinson (2 Vt. 480) 704 
 
 v. Wilson (42 Me. 9) .. 240 
 
 v. Wolfe (N. C.) (17 S. E. Rep. 528).. 683 
 
 v. Woodward (23 Vt. 92) 704 
 
 State Sav. Bank v. Stewart (Va.) (25 S. 
 
 E. Rep. 543) 545 
 
 State Trust Co. v. Duluth (Minn.) (73 N. 
 
 W. Rep. 249 [1897]) 147,148 
 
 Steamboat Globe v. Kutz (la.) (4 G. Green 
 
 433) 240 
 
 Stearns' Ex'r v. City of Richmond (Va.) 
 
 (14 S. E. Rep. 847) 333 
 
 Stedjnan v. Smith (8 E. & B. i [1857]).... 527 
 Steele v. Todd {.Pa. Sup.) (27 Atl. Rep. 
 
 942) 269 
 
 Steelman v. Atl. City Sew. Co. (38 Atl. 
 
 Rep. 742) 555, 559 
 
 Steers v. Brooklyn (101 N. Y. 51) 379,382 
 
 Steigleder v. Marshall (Pa. Sup.) (28 Atl. 
 
 Rep. 240) 611 
 
 Stein v. Bienville U. S. Co. (141 U. S. 
 
 67) 147 
 
 v. Burden (29 Ala. 127) 105 
 
 v. Dahm (Ala.) (u So. Rep. 597). .649, 650 
 
 Steinbuchel v. Lane (Kan.) (51 Pac. Rep. 
 
 886 [1898]) 406, 410 
 
 Stein Canal Co. v. Kern Island Irr. Co. 
 
 53 Cal. 563) 75 
 
 Steinke v. Bently (Ind.) (34 N. E. Rep. 97) 661 
 Steinmer v. Scottish Union & National Ins. 
 
 Co. (53 Pac. Rep. 498) 479 
 
 Stephens & Co. Transp. Co. v. West. 
 
 Union Tel. Co. (8 Ben. 50) 242 
 
 Stephenson v. Goff (La.) (10 Rob. 99) 378 
 
 v. Wilson (50 Wis. 95, 37 Wis. 482, 
 
 40 Wis. 594) 527 
 
 Sterling Hyd. Co. v. Williams (66 111. 393) 87 
 Stetson v. Adams (Me.) (39 Atl. Rep. 575 
 
 [1898]) 573,599 
 
 v. Patton (2 Me. 358) 45 
 
 Stevens v. Erie R. Co. (21 N. J. Eq. 259) 745 
 
 v. Hampton (46 Mo. 408) 45 
 
 v. Kelly (78 Me. 445) 166 
 
 v. Muskegon (Mich.) (69 N. W. Rep. 
 
 227) 661, 664 
 
 v. Rose (Mich.) (13 West Rep. 765)... 8 
 
 v. Wait (112 111. 544) 542,547,588 
 
 Stevenson v. Chattanooga (4 Am. & Eng. 
 
 Corp. Cases 503) 75 
 
 v. Wallace (27 Gratt. (Va.) 77) 325 
 
 Stewart v. Carlton (31 Mich. 270, 381). .580, 6n 
 
 v. Cass (16 Vt. 663) 465 
 
 v. Chicago G. St. Ry. Co. (58 111. App. 
 
 446) 786 
 
 v. Mayor (7 Md. 515) 755 
 
 v. Ohio River R. Co. (W. Va.) (18 S. 
 
 E. Rep. 604) 721 
 
 v. Patrick (68 N. Y. 450 [1877!) 606 
 
 Stiles v. Estabrooks (Vt.) (29 Atl. Rep. 
 
 961) 617 
 
 Stillman v. Burfeind (N. Y.) (21 App. Div. 
 
 13) 373, 376 
 
Iviii 
 
 TABLE OF CASES. 
 
 Stimmel v. Brown (Del.) (7 Houst. 219), 
 
 330 
 
 Stinchfield v. Gillis (Cal.) (40 Pac. Rep. 
 
 98) ......................................... 573 
 
 Stock v. Jefferson Tp. (Mich.) (72 N. W. 
 
 Rep. 132 [1897]) .......................... 54, 61 
 
 Stockman v. Riverside L. & I. Co. (64 Cal. 
 
 57) ......................................... 75 
 
 Stoll v. Beecher (Cal.) (29 Pac. Rep. 327), 
 
 Stolp v. Hoyt (44 111. 220) .................. '387 
 
 Stone v. Augusta (46 Me. 127 [1858]) ...... 407 
 
 Stoner v. Hunsicker (47 Pa. St. 514) ...... 311 
 
 v. Rice (Ind.) (22 N. E. Rep. 968), 
 
 410, 421 
 
 - v. Texas, etc., R. Co. (45 La. Ann. 
 115) ........................................ 320 
 
 Stonewall Phosphate Co. v. Peyton (Fla.) 
 (23 So. Rep. 440 [1897]) .................. 579 
 
 ) Mass. 63 [1868]), 
 
 550, SSi, 554 
 
 Stoops v. Smith (100 
 
 Storer v. Freeman (6 Mass. 435) .......... 374 
 
 Story v. N. Y. El. R. Co. (90 N. Y. 122). 781, 794 
 
 - v. Odin (12 Mass. 157) ....... . .......... 325 
 
 Stoughton v. Rice (Ky.) (32 S. W. Rep. 
 
 1083) ....................................... 578 
 
 Stout -v. McAdams (2 Scam. 67) ............ 180 
 
 Stowers v. Gilbert (Sup.) (33 N. Y. Supp. 
 
 101) ---- . ................................... 579 
 
 - y. Postal Tel. Co. (68 Miss. 559) ....... 812 
 
 Strait v. Brown (16 Nev. 317) ............ 75,110 
 
 Strange v. Spalding (Ky.) (29 S. W. Rep. 
 
 137) ................................ 431, 432, 521 
 
 Strickler v. Colorado Springs (16 Colo. 61), 
 
 77, no 
 
 Strong v. Powell (Ga.) (20 S. E. Rep. 6).. 521 
 Stroupe v. McClaskey (Pa.) (10 Atl. Rep. 
 
 42, 481 [1887]) .............................. 584 
 
 Stuart v. Baltimore (7 Md. 500) ............ 353 
 
 Studstill v. Willcox (Ga.) (20 S. E. Rep. 
 
 120) ........................................ 526 
 
 Stump v. McNairy (Tenn.) (5 Humph. 363) 234 
 Stuyvesant v. Dunham (9 111. 61) .......... 501 
 
 Succession of Delachaise v. Maginnis (La.) 
 
 (n So. Rep. 715) 
 
 p. 715 
 d Mini 
 
 379 
 
 Suffolk Gold Mining Co. v. San Miguel 
 Mining Co. (Col. App.) (48 Pac. Rep. 
 828) ..................................... 208, 220 
 
 Sullens v. Railway Co. (38 N. W. Rep. 545) 173 
 Sullivan v. Collins (Col. Sup.) (39 Pac. 
 Rep. 334) ................................... 547 
 
 - v. Eddy (111. Sup.) (45 N. E. Rep. 
 837) ........................................ 521 
 
 - v. Zeiner (Cal.) (33 Pac. Rep. 209), 
 
 322, 323, 326, 327 
 Sullivan, Town of, v. Phillips (Ind.) (11 N. 
 
 E. Rep. 300 [1887]) .................... 188, 190 
 
 Sulphur Mines Co. v. Thompson's Heirs 
 
 (Va.) (25 S. E. Rep. 232) .............. 555,559 
 
 Sumner v. Conant (10 Vt. 9) .............. 45 
 
 - ?'. Stevens (6 Met. 337) ................. 533 
 
 Susquehanna & Wy. Val. R. & C. Co. v. 
 
 Quick (68 Pa. St. 189) .................... 529 
 
 Sutherland v. Jackson (32 Mo. 80) .......... 454 
 
 Sutton r. Groll (42 N. J. 213 [1886]) ........ 442 
 
 - v. Nicholaisen (Cal.) (44 Pac. Rep. 
 805) ........................................ 683 
 
 Suydan v. Dunton (Sup.) (32 N. Y. Supp. 
 
 Swan v. Munch (Minn.)' ' (67 ' N! ' W.' ' Rep. 
 
 1022) ....................................... 243 
 
 Sweatman v. Holbrook (Ky.) (38 S. W. 
 
 Rep. 691) ................................... 390 
 
 Sweeney v. Mont. Cent. Ry. Co. (Mont.) 
 
 (47 Pac. Rep. 791) ...................... 105,138 
 
 Swenson v. Willsford (Tex.) (19 S. W. Rep. 
 
 613) ........................................ 632 
 
 Swett v. Cutts (50 N. H. 439) ........... 271,275 
 
 Swift v. Goodrich (70 Cal. 103) ....... ....63,71 
 
 - v. Mulkey (Oreg.) (21 Pac. Rep. 871). 526 
 Swindon W. Co. v. Wilts, etc., Co. (Eng.) 
 
 (L. R. 7 H. L. Cas. 697) .................. 62 
 
 Syracuse S. S. Co. v. Rome, etc., R. Co. 
 (67 Hun 161) .............................. 759 
 
 T. 
 
 
 
 Tacoma Hotel Co. v. Tacoma L. & W. Co. 
 
 (Wash.) (28 Pac. Rep. 516) 150 
 
 Taft v. Commonwealth (Mass.) (33 N. E. 
 
 Rep. 1046) 683 
 
 Taggart v. Newport St. R. C> (iu R. I. 
 
 688) 8i8> 
 
 Talbot v. Grace (30 Ind. 389) 703 
 
 v. N. Y. & H. R. Co. (151 N. Y. 155, 
 
 45 N. E. Rep. 382) 721 
 
 Tampa W. Co. v. Cline (Fla.) (20 So. Rep. 
 
 780) 54, 257, 258 
 
 Tanbert v. St. Paul (Minn.) (71 N. W. Rep. 
 
 664) 120 
 
 Tanner v. Valentine (75 111. 624 [1874])... 180 
 
 Tapley v. Smith (18 Me. 12) 8 
 
 Tappan v. Boston W. P. Co. (Mass.) (31 
 
 N. E. Rep. 703) .' 376,383 
 
 Tappendorf v. Downing (Cal.) (18 Pac. 
 
 Rep. 247 [1888]) 378 
 
 Taraldson v. Lime Springs (Iowa)*(6o N.' 
 
 W. Rep. 658) 706 
 
 Tarbell v. Bowman (103 Mass. 341) 590 
 
 Tartar v. Spring Creek M. & Mfg. Co. (5 
 
 Cal. 395) 75 
 
 Tatum v. St. Louis (Mo. Sup.) (28 S. W. 
 
 Rep. 1002) 382 
 
 Taylor v. Abbott (Cal.) (37 Pac. Rep, 408) no 
 v. Baltimore, etc., R. Co. (33 W. Va. 
 
 39) 117 
 
 v. Blake (N. H.) (10 Atl. Rep. 698 
 
 [1887]) 107 
 
 v. Cedar Rapids, etc., R. Co. (25 la. 
 
 v. Fickas (64 Ind. 167) 136 
 
 v. Fomby Ala.) (22 So. Rep. 910 
 
 [1897]) 502, 573, 577, 580, 605 
 
 v. Hampton (S. C.) (4 McCord 61).... 64^ 
 
 v. McConigle (52 Pac. Rep. 159), 
 
 615, 623, 624, 629 
 
 v. Millard (118 N. Y. 244 [1890]) 495 
 
 v. Slingerland (Minn.) (40 N. W. Rep. 
 
 575) 5 2 o 
 
 v. Welch (6 Oreg. 198, 200) 71,259 
 
 v. Wright (111.) (13 N. E. Rep. 529 
 
 [1887]) 560 
 
 Teass v. St. Albans (W. Va.) (17 S. E. 
 
 Rep. 400) 498, 573 
 
 Tenant v. Goldwin (6 Wood 311) 263 
 
 Tennessee & C. R. Co. v. Danforth (Ala.) 
 
 (20 So. Rep. 502) 121 
 
 Tennessee Coal, Iron & R. Co. v. Hamilton 
 
 (Ala.) (14 So. Rep. 167 [1893]), 
 
 213, 214, 217, 220 
 
 Terre Haute & I. R. Co. v. Zehner (Ind. 
 App.) (42 N. E. Rep. 756) 107,644 
 
 Terre Haute El. L. & P. Co. v. Citizens' 
 El. L. & P. Co. (Ind. Super. Ct.) (6 
 Amer. El. Cas. 193 [1895]) 296 
 
 Terry v. New York (N. Y.) (80 Bosw. 504) 145 
 
 Tewksbury v. French (44 Mich. 102) 545 
 
 Texarkana & Ft. S. Ry. Co. v. Parsons 
 
 .) (74 Fed. Rep. . . 
 Texas & P. Ry Co. v. Gaines Tex. Civ. 
 
 (C. C. A.) (74 Fed. 
 
 .JtI9, 121 
 
 685 
 
 App.) (27 S. W. Rep. 266). 
 Texas, etc., Ry. Co. v. Padgett (Tex.) (37 
 
 S. W. Rep. 92) 192 
 
 Texas Town-site Co. v. Hunnicutt (Tex.) 
 
 31 S. W. Rep. 520) 633 
 
 Thames Bank v. Lovell (18 Conn. 500) 245 
 
 Thatcher v. Gottleib (C. C. A.) (59 Fed. 
 
 Rep. 872) 523 
 
 Thayer v. Boston (19 Pick. (Mass.) 511)... 703 
 
 v. Finton (108 N. Y. 394), 
 
 546, 548, 550, 57i, 572, 588, 591, 615 
 
 Thomas v. Babb (45 Mo. 384) 518 
 
 v. Brackney (N. Y.) (17 Barb. 654) 222 
 
 v. Calhoun (58 Miss. 80) 86 
 
 v. Concordia Cannery Co. (68 Mo. App. 
 
 350) 272 
 
 v. Guirand (6 Colo. 530) 75 
 
 v. Petersen (Texas) (24 S. W. Rep. 
 
 1125) 151 
 
TABLE OF CASES. 
 
 lix 
 
 Thomas v. Thomas (2 C. M. & R. 34) 183 
 
 Thomasson v. Hanna (Ky.) (18 S. W. Rep. 
 
 227) 576 
 
 Thompson v. Burhans (61 N. Y. 70) 521 
 
 v. Ladd (169 111. 73) 590 
 
 -v. Lee (8 Cal. 275) 75 
 
 v. Noble (Pittsb. (Pa.) 201, n Min. 
 
 Rep. 137) 283 
 
 v. Sheppard (Ala.) (5 So. Rep. 334 
 
 [1889]) 562, 588 
 
 v. Southern Cal. M. R. Co. (Cal.) (23 
 
 Pac. Rep. 130) 544 
 
 v. Thompson (Ky.) (20 S. W. Rep. 
 
 Thorp v. Cole (2 C. M. & R. 367) 477 
 
 Threadgill v. Bickerstaff (Tex.) (29 S. 
 
 W. Rep. 757) 555 
 
 Thunder Bay B. Co. v. Speechly (31 Mich. 
 
 533) 243 
 
 Thurber v. Martin (Mass.) (2 Gray 394) 59 
 
 Thurston v. Hancock (12 Mass. 221) 323 
 
 Tibbetts v. Estes (52 Me. 566) 578 
 
 Tiede v. Schneidt (VVis.) (74 N. W. Rep. 
 
 798 [1898]) 209,213,214 
 
 Tierney i 1 . Brown (Miss.) (5 So. Rep. 104 
 
 .[1889]) 546, 5540, 560 
 
 Tiffany v. Commonwealth (121 Pa. St. 165) 351 
 
 Tilly v. Slough G. Co. (17 Gas J. 331) 305 
 
 Timm v. Bear (29 Wis. 254) 59 
 
 Tinker v. Metropolitan El. R. Co. (Sup.) 
 
 (30 N. Y. Supp. 1014) 448 
 
 Tinner v. United States (C. C. A.) (66 Fed. 
 
 Rep. 280-289) 624 
 
 Tinsman v. Belvedere, etc., Co. (26 N. J. 
 
 L. 148) 131 
 
 Tissot v. Gt. So. Tel. Co. (39 La. Ann. 
 
 996) 316, 318 
 
 Titcomb v. Kirk (51 Cal. 288) 73 
 
 Titus v. Morse (40 Me. 348 [1855]) 597 
 
 Tobey v. Moore (130 Mass. 448 [1881]) 445 
 
 v. Secor (60 Wis. 310, 500) 519 
 
 Todd v. Pittsburg, etc., R. Co. (19 Ohio 
 
 St. 514) 738 
 
 v. Railroad Co. (19 Ohio St. 514) 704 
 
 Tognazzini v. Morganti (Cal.) (23 Pac. 
 
 Rep. 138) 627 
 
 Toledo v. Crasser (12 Ohio C. C. 520), 
 
 184, 194, 272 
 
 Toledo, etc., R. Co. v. Green (67 111. 199).. 742 
 Tolkin v. Anderson (Tex. Sup.) (19 S. W. 
 
 Rep. 350) 586 
 
 Tolle v. Correth (31 Tex. 362) 72 
 
 Tolleston Club t'. Clough (Ind. Sup.) (43 
 
 N. E. Rep. 647) 410 
 
 v. State (Ind. Sup.) (38 N. E. Rep. 
 
 214) 410 
 
 Tolman v. Sparhawk (5 Mete. 469) 500 
 
 Topeka z\ Cowee (Kans.) (29 Pac. Rep. 
 
 560) 683 
 
 Topeka W. Co. v. Whiting (50 Pac. Rep. 
 
 877) 145 
 
 Totel v. Bonnefoy (111.) (14 N. E. Rep. 
 
 687 [1888]) 669 
 
 Towle v. Remsen (70 N. Y. 303 [1877]) 413 
 
 Town v. Salentine (Wis.) (66 N. W. Rep. 
 
 395) 44i 
 
 Townes v. Augusta (S. C.) (23 S. E. Rep. 
 
 984) * 85 
 
 Townsend v. Bell (Sup.) (24 N. Y. Supp. 
 
 193, 17 N. Y. Supp. 210). .207, 213, 214, 216, 219 
 Tracy v. Atherton (36 Vt. 503). .672, 673, 674, 675 
 Transportation Co. v. Chicago (99 U. S. 
 
 635 [1878]) 721 
 
 Travellers' Ins. Co. v. Yount (98 Ind. 454 
 
 [1884]) 406 
 
 Treak v, Joslyn (139 Mass. 94) 547 
 
 v. B; ; . 
 
 Barteau (5 
 Trindle v. Edwards (Tex.) (19" S: W. Rep. 
 
 Treat 
 Trerice 
 
 Sates (27 Mich. 390;..... 
 Barteau (54 Wis. 99).. 
 
 86 
 70S 
 
 772) 617 
 
 Trinity, etc., R. Co. v. Schofield (72 Tex. 
 
 400) f B IQ3 
 
 Triplett v. Jackson (Kan.) (48 Pac. Rep. 
 
 93i) 341 
 
 Tritt v. Hoover (Mich.) (74 N. W. Rep. 
 
 117 [1898]) S oi 
 
 Trowbridge v. Brookline (144 Mass. 139).. 255 
 
 v. True (52 Conn. 190) 329,^0 
 
 Truby v. Palmer '(Pa.) (4 Cent. Rep. 925, 
 
 6 Atl. Rep. 74 [1886]) 2 8 3 
 
 Trudeau v. Field (Vt.) (38 Atl. Rep. 162 
 
 [1897]) 88 
 
 Trull v. Fuller (28 Me. 545) 8 
 
 Trustees v. Jessup (Sup.) (42 N. Y. Supp. 
 
 4) 
 
 665 
 
 - v. Schroll (111.) (12 N. E. Rep. 243 
 [1887] ) ................................. 1720, 410 
 
 Tucker v. Chicago & A. R. Co. (2 Mo. 
 App. Rep. 1328) ............................ 195 
 
 - v. Jones (Mont.) (19 Pac. Rep. 571 
 [1889]) ..................................... 76 
 
 - v. Salem Mills (Oreg.) (16 Pac. Rep. 
 426 [1888]) ............................. 105,107 
 
 Tuffts v. Spring (15 Mass. 135) ............ 352 
 
 Tunstall v. Christian (80 Va. i) ............ 326 
 
 Turner v. Cole (49 Pac. Rep. 971) ......... 77 
 
 - v. Fitchburg Ry. Co. (Mass.) (14 N. 
 
 E. Rep. 627 [1888]) ........................ 685 
 
 - v. Holland (54 Mich. 300, 65 Mich. 
 453) ........................................ 234 
 
 - v. Mirfield (34 Beav. 390) .............. 270 
 
 v. Parker (Oreg.) (12 Pac. Rep. 495 
 
 8 7 j) .............................. :...::: s 
 
 v. Union Pac. Ry. Co. (Mo. Sup.) (20 
 
 Rep. 673) 
 v. Warren (Pa. Sup.) (28 Atl. ep. 
 
 S. W. Rep. 673) ....................... 5540,600 
 
 v. Warren (Pa. Sup.) (28 Atl. R 
 781) ................ . ....................... 45 
 
 Turnpike Co. v. American, etc., News Co. 
 
 (43 N. J. Law 381) ......................... 842 
 
 Turnpike R. Co. v. Coventry (N. Y.) (10 
 
 Johns. 389) ................................. 795 
 
 Tutwiler v. Kendall (Ala.) (21 So. Rep. 
 
 332) ..................................... 701, 709 
 
 Tyler v. Hammond (Mass.) (n Pick. 193) 645 
 
 Tynon v. Despain (43 Pac. Rep. 1039). . .77, 844 
 Tyson v. Post (N. Y.) (15 N. E. Rep. 316) 8 
 Tytus Gardner Paper Co. v. Middletown 
 Hyd. Co. (15 Ohio Cir. Ct. Rep. 118).... 677 
 
 U. 
 
 U. B. Ground v. Robinson (5 Wharton 18). 453 
 Ulmer v. Farnsworth (Me.) (15 Atl. Rep. 
 
 65 [1888]) 272 
 
 Ulrick v. Dakota Loan & Trust Co. (S. D.) 
 
 (51 N. W. Rep. 1023) 332 
 
 Underwood v. Waldron (33 Mich. 232 
 
 [1878]) 183 
 
 Unger v. Mooney (63 Cal. 586) 528 
 
 Union Mill & Min. Co. v. Dangberg (C. 
 
 C. D. Nev.) (81 Fed. Rep. 73,. 2 Sawy. 
 
 45o) Si, 55. 61, 71, 75, 81, 82, 104, 107, 108 
 
 -v. Ferris (2 Sawy. 176) 53,71.73 
 
 Union Pac. R. Co. v. Dyche (31 Kans. 120), 
 
 1720 
 Union Water Co. v. Crary (25 Cal. 504), 
 
 United N. J. R. and Canal Co. v. Starid- ' 
 
 ard Oil Co. (33 N. J. Eq. 123) 242 
 
 United States v. Alexander (13 Sup. Ct. 
 
 Rep. 529, 532) 255 
 
 v. Andres Castillero (2 Bl. 20, 21) 644 
 
 v. Appleton (U. S.) (i Sumn. 492).... 325 
 
 v. Burns (C. C.) (54 Fed. Rep. 351)... 243 
 
 -* v. Chicago (7 How. (U. S.) 185). ..703, 704 
 
 v. Estudillo (i Hoffm. L. Cas. 204) 595 
 
 v. Fossat (U. S.) (2 How. 413) 595 
 
 v. Harris (i Sumner 21) 707 
 
 v. Huckabee (16 Wall. (U. S.) 423).-.. 4 
 
 v. Linn (i How. (U. S.) 104) 47 
 
 v. Moline (U. S. D. C.) (82 Fed. Rep. 
 
 592) 242 
 
 v. N. B. Gravel Win. Co. (C. C. Cal.) 
 
 (81 Fed. Rep. 243) 218,242 
 
 v. Pacheco (2 Wall. 587) 407 
 
 v. Pellingham Bay B. Co. (C. C. App.) 
 
 (81 Fed. Rep. 658 [1897]) 239,242 
 
Ix 
 
 TABLE OF CASES. 
 
 United States v. Rider (Dist. Ct.) (50 Fed. 
 
 Rep. 406) 121 
 
 v. Rio Grande D. & Irr. Co. (N. M.) 
 
 (51 Pac. Rep. 674 [1898]) 232,242 
 
 f. Union Pac. R. (45 Fed. Rep. 221).. 820 
 
 United States Pipe-line Co. v. Del., L. & W. 
 
 R. Co. (N. J.) (41 Atl. Rep. 759 [1898]). 535, 7iS 
 Utley v. Smith (Tex.) (32 S. W. Rep. 906) 573 
 
 Valantine v. Sloss (Cal.) (37 Pac. Rep. 
 
 326-329) 407 
 
 Valentine v. Schreiber (Sup.) (38 N. Y. 
 
 Supp. 417) 650, 711, 712 
 
 v. Valentine (2 Barb. Ch. (N. Y.) 430) 465 
 
 Van Amberg v. Hitt (Mo. Sup.) (22 S. VV. 
 
 Rep. 636) 601 
 
 Van Brunt v. Day (81 N. Y. 251 [1880]).... 551 
 Van Der Groef v. Jones (Mich.) (65 N. W. 
 
 Rep. 602) 501 
 
 Van Dusen -v. Shiveley (Ore.) (39 Pac. 
 
 Rep. 76) 619 
 
 Van Hoeson v. Coventry (N. Y.) (10 Barb. 
 
 518) 75 
 
 Van Orsdal v. Burlington, etc., R. Co. (56 
 
 Iowa 470) 117, 1720 
 
 Van Witson v. Gutman (Md.) (29 Atl. Rep. 
 
 608) 703 
 
 Van Wyck v. Wright (18 Wend. 57) 502 
 
 Vance v. Fore (24 Cal. 436 [1864]), 
 
 57i, 573, 598, 599 
 Vandenberg v. Van Bergen (13 Johns. (N. 
 
 Y.) 212) 56 
 
 Vansickle v. Haines (7 Nev. 249) 73 
 
 Vass v. King (W. Va.) (10 S. E. Rep. 402) 516 
 
 Vaughan v. Rupple (69 Mo. App. 583) 676 
 
 Veghte v. Raritan Water-power Co. (N. J.) 
 
 (4 C. E. Greene 142-159) 66t> 
 
 Vermilye v. Chicago, etc., R. Coy (66 la. 
 
 606) 731 
 
 Vernon Ir. Co. v. Los Angeles (Cal.) (39 
 
 Pac. Rep. 762) 61,62 
 
 Vernum v. Wheeler (N. Y.) (35 Hun 53), 
 
 101, 179 
 
 Verplank v. Hall (37 Mich. 79) 424 
 
 Vicksburg, etc., R. Co. v. Monroe (La.) 
 
 (20 So. Rep. 664) 709 
 
 Victoria v. Schott (Tex. Civ. App.) (29 S. 
 
 W. Rep. 681) 43i 
 
 Vineyard v. Brundrett (Tex.) (42 S. W. 
 
 Rep. 232) 521,522 
 
 v. O'Connor (Tex.) (35 S. W. Rep. 
 
 1084) 555 
 
 Visalia, City of, v. Jacob (6 Am. & Eng. 
 
 Corp. Cases 115) 75 
 
 Voight v. Raby (Va.) (20 S. E. Rep. 824), 
 
 496, 498 
 Von Rosenberg v. Haynes (Tex.) (20 S. W. 
 
 Rep. 143) 617 
 
 Voorhees v. McGinnis (48 N. Y. 278) 8 
 
 Voorheis v. Eiting (Ky.) (22 S. W. Rep. 
 
 80) 554 
 
 Vosen v. Dantel (Mo.) (22 S. W. Rep. 734), 
 
 5*6, 715 
 Vroman v. Dewey (23 Wis. 530 [1868]) 577 
 
 Wabash R. Co. v. Sanders (58 111. App. 
 
 213) 117, 137, 218 
 
 Wade v. Deray (59 Cal. 376 [1875]) 550 
 
 Wadsworth v. Smith (11 Me. 278) 1720,233 
 
 Waffle v. N. Y. Central R. Co. (53 N. Y. 
 
 ii [1873]) 184, 205 
 
 v. Porter (N. Y.) (61 Barb. 130) 106 
 
 Waggoner v. Daniels (Tex.) (44 S. W. 
 
 Rep. 946 [1898]) 578 
 
 Wagner v. L. I. R. Co. (N. Y.) (5 Thomp. 
 
 & C. 163) 1720 
 
 v. Met. El. R. Co. (N. Y.) (io N. E. 
 
 Rep. 535) 794 
 
 Wahle v. Reinbach (76 Ga. 423) 267 
 
 Wait v. May (Minn.) (51 N. W. Rep. 471) 379 
 
 Walbrun v. Ballen (68 Mo. 164) 518 
 
 Waldin v. Smith (la.) (39 N. W. Rep. 
 
 82 [1888]) 600 
 
 Walker v. Allen (72 Ala. 456) 234 
 
 v. Board of P. W. (16 Ohio 540) 241,401 
 
 v. Boynton (120 Mass. 349 [1876]).... 606 
 
 v. Moses (N. C.) (18 S. E. Rep. 339) 555 
 
 v. New Mexico, etc., R. Co. (17 Sup. 
 
 Ct. Rep. 421) 176 
 
 v. Schindel (58 Md. 360) 8 
 
 v. Simpson (Me.) (13 Atl. Rep. 580 
 
 [1888]) 474, 485, 502, 503 
 
 Walla Walla v. Walla Walla Water Co. (19 
 
 Sup. Ct. Rep. 77 [1898]) 848 
 
 Wallace v. Columbia & G. R. Co. (S. C.) 
 
 (16 S. E. Rep. 35) 114 
 
 v. Driver (Ark.) (33 S. W. Rep. 641), 
 
 378, 380, 390, 414 
 
 v. Musketine (La.) (4 Green. 373")....".. 196 
 
 667) . .' 62 
 
 Waller v. Manchester (Eng.) (6 
 
 Walrod v. Flanigan (Ga.) (39 N. W. Rep. 
 
 645 [1888]) 580 
 
 Walter v. Selfe (4 Eng. Law & Eq. 15).... 301 
 Walters v. Pfeil (Eng.) (i Mood. & Elk. 
 
 362) 327 
 
 Walther v. Warner (25 Mo. 289) 353,755 
 
 Ward v. Albemarle R. Co. (N. C.) (16 ' 
 
 S. E. Rep. 921) 114 
 
 v. Atlantic, etc., Tel. Co. (71 N. Y. 81) 826 
 
 v. Cockran (C. C. A.) (71 Fed. Rep. 
 
 127) 516 
 
 v. Davis (N. Y.) (3 Sandf. 502) 704 
 
 v. Ihler (Mo.) (34 S. W. Rep. 251)... 492 
 
 v. People (N. Y.) (6 Hill 140) 163 
 
 v. Toledo, etc., R. Co. (io West L. 
 
 Jour. 365 [1853)]. ..-_:.;:..: 353 
 
 Warden v. He 
 
 [arris (Tex.) (47 S. W. Rep. 
 
 834) 55i, 57> 
 
 Wardens v. Lavezzolo (Mass.) (30 N. E. 
 
 Rep. 471) 341 
 
 Wardlow v. Harmon (Tex. Civ. App.) (45 
 
 S. W. Rep. 828) 497,624 
 
 Ware v. Allen (140 Mass. 513) 82,219 
 
 v. Chew (N. J.) (i Atl. Rep. 746 [1889]) 307 
 
 v. Walker (70 Cal. 591) 
 
 75, 77 
 
 Waring v. Ayers (40 N.""Y. 357) 556 
 
 Warr v. Honeck (Utah) (29 Pa. Rep. 1117) 516 
 Warren r. Bowdran (Mass.) (31 N. E. Rep. 
 
 300) *.. S3 
 
 v. Grand Haven (30 Mich. 24) 708 
 
 v. Lyons (22 Iowa 351) 702,708 
 
 v. Thomaston (75 Me. 329 [1883]). .401, 447 
 
 Washburn v. Cutler (17 Minn. 361) 521 
 
 v. Gilman (64 Me. 163) 222 
 
 Washburn, etc., Mfg. Co. v. Worcester 
 
 (116 Mass. 458) 242 
 
 Washington Ice Co. v. Shortall (101 111. 46), 
 
 163, 168 
 Wason v. Pilz (Or.) (48 Pac. Rep. 701).... 712. 
 
 Waterman v. Buck (58 Vt. 519) 222 
 
 v. Johnson (13 Pick. 261) 421,550,612 
 
 Waters v. Bay View (61 Wis. 642 [1884]).. 186 
 Water-sup. & Stor. Co. v. Larimer & Weld 
 
 Irr. Co. (Colo.) (51 Pac. Rep. 496 [1897]) 75 
 v. Larimer & W. Res. Co. (53 Pac. 
 
 Rep. 386) 76 
 
 Watervliet v. Colonie (Sup.) (50 N. Y. 
 
 Supp. 487) 546 
 
 Watervliet Tpk. & R. Co. v. Hudson Riv. 
 
 Teleph. Co. (61 Hun 141 [1891]), 135 
 
 N. Y. 393 [1892]) 292,295,296 
 
 Watkins v. Baird (6 Mass. 506) 48 
 
 v. Holman (U. S.) (16 Pet. 25)........ 53 
 
 Watrous v. Morrison (Fla.) (14 So. Rep. 
 
 805) 472, 498, 502, 575 
 
 Watson v. Crutcher (Ark.) (19 S. W. Rep. 
 
 gg\ 554fl 
 
 v'. " Horoe ' (N*. H-) (J3 Atl. Rep. 789 
 
 [1888]) 382, 383 
 
 v. Toronto, etc., Water Co. (4 U. C. 
 
 O. B. 158) 204 
 
 Watson Lodge v. Drake (Ky.) (29 S. W. 
 Rep. 332) 327 
 
TABLE OF CASES. 
 
 Ixi 
 
 Watterson v. Saldunbehere (Cal.) (35 Pac. 
 
 Rep. 432) 86 
 
 Waugh v. Leech (28 111. 488) 701 
 
 Wayzata v. Gt. N. Ry. Co. (Minn.) (52 
 
 N. W. Rep. 913) 421,536 
 
 Wead v. St. Johnsbury Co. (Vt.) (24 Atl. 
 
 Rep. 361) 445, 449 
 
 Weare v. Weare (59 N. H. 293) 603 
 
 Weaver v. Conger (10 Cal. 233) 75 
 
 v. Eureka Lake Co. (15 Cal. 271) 75 
 
 M 
 
 v. Miss. Boom Co. (28 
 
 Webb v. Demopolis (Ala.) (13 So. 
 
 inn. 534) 88 
 
 Rep. 289), 
 
 412, 414 
 
 v. Laird (Vt.) (7 Atl. Rep. 465 [1887]) 88 
 
 v. Portland Mfg. Co. (3 Sumn. (U. S.) 
 
 189) 209 
 
 Weber v. Anderson (73 111. 439) 686, 68> 
 
 v. Miller (9 Ohio Cir. Ct. Rep. 674).... 719 
 
 v. Pere Marquette Co. (62 Mich. 626) . . 421 
 Webster v. Stevens (5 Duer 553) 327 
 
 v. White (S. D.) (66 N. W. Rep. 1145) 352 
 Weed v. Keenan (Vt.) (13 Atl. Rep. 804 
 
 1888]) 185, 674 
 
 Weeks v. Trask (Me.) (16 Atl. Rep. 413 
 
 [1889]) 463 
 
 Weichselbaum v. Curlett (20 Kan. 709) 516 
 
 Weidekind v. Tuolumne W. Co. (Cal.) (12 
 
 Pac. Rep. 387 [1887]) 88 
 
 Weir v. Bell's App. (81 Pa. St. 203). ...321, 323 
 
 Weis v. Maddeson (75 Ind. 241) 188 
 
 Weisbrod v. Chicago, etc., R. Co. (18 Wis. 
 
 41) 45, 578 
 
 Weiss v. Oreg. I. & T. Co. (13 Oreg. 496) 71 
 Welch v. Oregon Ry. & Nav. Co. (Oreg.) 
 
 (56 Pac. Rep. 417 [1899]) 381 
 
 Weller v. McCormick (52 N. J. Law 470).. 319 
 Welles v. Bailey (Conn.) (10 Atl. Rep. 
 
 565 [1887]) 377, 380 
 
 Wells v. Co. (47 N. H. 235 [1866]). .603, 604, 605 
 v. Heddenberg (Tex.) (30 S. W. Rep. 
 
 702) 633 
 
 v. Kreyenhagen (Cal.) (49 Pac. Rep. 
 
 128) 75 
 
 v. Rhodes (Ind.) (16 N. E. Rep. 830 
 
 [1889]) 549 
 
 v. Tollman (Slip.) (34 N. Y. Supp. 840) 71-1 
 Welsh v. Beaver Falls (Pa.) (40 Atl. Rep. 
 
 784 [1898]) 664 
 
 v. Taylor (N. Y.) (50 Hun 137 [1888]), 
 
 648, 650 
 Welton v. Poynter (Wis.) (71 N. W. Rep. 
 
 597) 501 
 
 Wendt v. Craig (67 Pa. St. 424) 243 
 
 Wenger v. Hippie (Pa.) (13 Atl. Rep. 81 
 
 [1888]) 683 
 
 West v. Bretell (Mo. Sup.) (22 S. W. Rep. 
 
 705) 550 
 
 v. Fox River Paper Co. (Wis.) (52 N. 
 
 W. Rep. 803) 432 
 
 v. Louisville, etc., R. Co. (Ky.) (8 
 
 Bush 404) 119 
 
 Westbrook v. Guderian (Tex.) (22 S. W. 
 
 Rep. 59) 627 
 
 Westcott v. Middleton (43 N. J. Eq. 478).. 303 
 Westenfelder v. Green (C. C.) (76 Fed. 
 
 Rep. 925) 516 
 
 v. (Oreg.) (34 Pac. Rep. 23) 516 
 
 Westerly Water-works v. Town of Westerly 
 
 (R. I. C. C.) (75 Fed. Rep. 131, 80 Fed. 
 
 Rep. 611) 147, 664 
 
 Western Union R. Co. v. Smith (75 111. 
 
 496 [1874]) 745, 747, 753 
 
 Western Union Tel. Co. v. Amer. Un. Tel. 
 
 Co. (U. S.) (9 Biss. 72) 819,821 
 
 v. Ann Arbor R. Co. (90 Fed. Rep. 
 
 379) 821 
 
 v. Atlantic, etc., Tel. Co. (7 Biss. 
 
 (U. S.) 367) ." 819 
 
 v. Baltimore, etc., R. Co. (67 Md. 211), 
 
 818, 821 
 
 v. Bullard (Vt.) (31 Atl. Rep. 286).... 817 
 
 v. Champion Elec. Ltg. Co. (14 Cin. , 
 
 Week. Bull. 327) 295,828 
 
 v. Chicago, etc., R. Co. (86 111. 246).. 819 
 
 Western Union Tel. Co. v. Guernsey, etc., 
 
 Co. (46 Mo. App. 120) 295 
 
 v. Los Angeles E. L. (76 Fed. Rep. 
 
 Wilkins v. Nicolai (74 N. W. Rep. 103).... 677 
 
 178) 296 
 
 v. Rich (19 Kan. 517) 818 
 
 v. Williams (86 Va. 696) 822 
 
 Westmoreland & C. Nat. Gas Co. v. 
 
 De Witt (130 Pa. St. 235) 281 
 
 Wethersfield v. Humphrey (20 Conn. 217). 23^. 
 Wetmore v. Atlantic White Lead Co. (37 
 
 Barb. 70, 139) 379, 382 
 
 Whalley v. Lancashire & Yorkshire Ry. 
 
 Co. (Law Rep. 13 Q. B. Diy. 131 [1884]). 120 
 Wharf Compy. v. Portland (46 Me. 42 
 
 [1858]) 449, 451 
 
 Wharton v. Brick (N. J.) (8 Atl. Rep. 
 
 529 [1887]) 408, 548 
 
 v. Bunting (73 111. 16) 526 
 
 Wheatfield v. Grundman (164 111. 250) 706 
 
 Wheatley v. Baugh (25 Pa. St. 528), 
 
 259, 269, 271, 275 
 Wheeler v. Northern Colo Irr. Co. (10 
 
 Colo. 582) 73, 75 
 
 v. Spinola (54 N. Y. 377) 421 
 
 v. State (Ala.) (19 So. Rep. 993) 492,497 
 
 v. Winn (53 Pa. St. 122) 521 
 
 Wheelock v. Jacobs (Vt.) (40 Atl. Rep. 
 
 41 [1897]) 252, 262 
 
 Whetstone v. Bowser (29 Pa. St. 60).... 259 
 Whilcher v. Holland W. Co. (142 N. Y. 
 
 626, 48 St. Rep. 196) 841 
 
 Whipperman v. Dunn (Ind.) (24 N. E. 
 
 Rep. 1045 [1890]) 558 
 
 Whisler v. Wilkinson (22 Wis. 572 [1868]), 
 
 233, 243 
 Whitbeck v. N. Y. Cent. R. Co. (36 Barb. 
 
 (N. Y.) 644) 320 
 
 Whitcher v. Whitcher (49 N. H. 176) 46? 
 
 Whitcomb v. Dutton (Me.) (36 Atl. Rep. 
 
 67) 502, 577 
 
 White v. Blum (C. C. A.) (79 Fed. Rep. 
 
 271) 632 
 
 v. Denman (i Ohio St. no) 45 
 
 v. Dresser (135 Mass. 150) 330 
 
 v. East Lake L. Co. (Ga.) (23 S. E. 
 
 Rep. 393) na 
 
 v. Godfrey (97 Mass. 472 [1867]) 447,448 
 
 v. Hapeman (43 Mich. 267) 518- 
 
 v. Hass (32 Ala. 432) 47 
 
 v. Meadville (Pa.) (35 Atl. Rep. 695).- 664 
 
 v. Peabody (Mich.) (64 N. W. Rep. 
 
 41) 500 
 
 v. Phillips (15 C. B. N. S. 245) 242 
 
 v. Spreckles (75 Cal. 610 [1888]). 494, 498, 502 
 
 v. Tide-water Oil' Co. (N. J. Ch.) (33 
 
 Atl. Rep. 47) 
 
 v. Todds Valley W. Co. (8 Cal. 443).. '75 
 
 v. Ward (W. Va.) (14 S. E. Rep. 22).. 498 
 
 Whitehall v. Jacobs (75 Wis. 479) 2 
 
 Whitehead v. Atchison (Mo.) (37 S. W. 
 
 Rep. 938) 599 
 
 Whitehurst v. McDonald (C. C. A.) (52 
 
 Fed. Rep. 633) 406 
 
 v. Pettipher (87 N. C. 179 [1882]) 620 
 
 White's Bank v. Nichols (64 N. Y. 65 
 
 [1876]) i 445, 45i, 45 2 , 578 
 
 Whitman v. Shaw (Mass.) (44 N. E. Rep. 
 
 . . 'hitney 'v." Edmunds "(94 N. Y. 309 [1884]) 516 
 Wholey v. Caldwell (Col.) (41 Pac. Rep. 31) 103 
 Whyte v. Builders' League (52 N. Y. Supp. 
 
 65, 23 Misc. Rep. 385) 335 
 
 Wickham v. Kawker (7 Mees. & W. 63).. 667 
 Wiggins ,v. Kirby (Ala.) (17 So. Rep. 354) 516 
 v. Muscupiabe Land & Water Co. 
 
 (Cal.) (45 Pac. Rep. 160) 75 
 
 Wigmann v. Jefferson (61 Mo. 55) 105 
 
 Wilcox v. Bread (92 Hun 9) 411 
 
 v. Hausch (64 Cal. 461) 75,102- 
 
 Wiley v. Sanders (36 Mich. 60) 545 
 
 Wilgus v. Bd. of Comm'rs (Kan.) (38 Pac. 
 
 Rep. 787) 707 
 
 v. Gettings (21 la. 177) 8 
 
 70Q 
 
Ixii 
 
 TABLE OF CASES. 
 
 Wilhelm v. Burley,son (106 N. C. 381) 135 
 
 Wilkerson v. Webb (Miss.) (23 So. Rep. 
 
 180 [1898]) 554 
 
 Wilkins v. Nicolai (74 N. W. Rep. 103).... 677 
 v. Pensacola City Co. (Fla.) (18 So. 
 
 Rep. 20) 516 
 
 v. Town Council (S. C.) (32 S. E. Rep. 
 
 299 [1899]) 756 
 
 Wilkinson Coal & Coke Co. v. Driver 
 
 (Wash.) (43 Pac. Rep. 889) 544 
 
 Willard v. Pike (Vt.) (9 Atl. Rep. 907 
 
 [1887]) 5 
 
 Willett v. St. Albans (Vt.) (38 Atl. Rep. 
 
 72 [1897]) 3o6 
 
 Willets Mfg. Co. -v. Board (N. J.) (40 Atl. 
 
 Rep. 782) 720 
 
 Willetts v. 'Brown (N. Y.) (42 Hun 140).. 283 
 Willey v. Thwing (Vt.) (34 Atl. Rep. 428) 715 
 Williams v. Camden & R. W. Co. (Me.) 
 
 (n Atl. Rep. 600 [1888]) 194 
 
 v. Cunningham (Mass.) (18 Pick. 312). 702 
 
 v. Flood (63 Mich. 487) 667 
 
 v. Fulmer (Pa. Sup.) (25 Atl. Rep. 
 
 103) 101 
 
 -v. Harter (53 Pac. Rep. 405) 77 
 
 v. Hughes (N. C.) (32 S. E. Rep. 325 
 
 1899]) 611 
 
 v. Kenney (14 Barb. 629) 330 
 
 v. James (L. R. 2 C. P. 577 [1867])... 681 
 
 v. McAliley (Cheeves 200) 687 
 
 v. Rand (Tex.) (45 S. W. Rep. 156).... 522 
 
 v. Schantz (la.) (55 N. W. Rep. 202).. 501 
 
 v. Society (i Ohio St. 478) 704 
 
 v. Wadsworth (51 Conn. 277) 61 
 
 v. Warren (21 111. 541) 485 
 
 v. Wilcox (8 A. & E. 314) 242 
 
 v. Winslow (Tex.) (19 S. W. Rep. 513) 580 
 
 Williamson v. N. J. So. Rep. Co. (6 Cent. 
 
 L. J. 381 [1878]). 
 Willis v. Perry (la.) (60 N. W. Rep. 727) 258 
 Wilmot v. Yazoo & M. V. R. Co. (Miss.) 
 
 (24 So. Rep. 701 [1899]) 685 
 
 Wilson v. Acree (Tenn. Sup.) (37 S. W. 
 
 Rep. 90) 703. 709 
 
 v. Blake (53 Vt. 305) 521 
 
 v. Charlotte fN. C.) (14 S. E. Rep. 961) 148 
 
 v. Equitable Gas Co. (Pa. Sup.) (25 
 
 Atl. Rep. 635) 850 
 
 v. Getty (57 Pa. St. 266) 465 
 
 v. Higbee (C. C.) (62 Fed. Rep. 723). 75 
 
 v. Homer (59 Pa. St. 155) 618 
 
 v. Hunter (Ark.) (28 S. W. Rep. 419). 336 
 
 v. Johnson (Ind. Sup.) (38 N. E. Rep. 
 
 38) 546 
 
 v. Lynn (119 Mass. 174) 752 
 
 v. Morris (Pa. Sup.) (33 Atl. Rep. 275) 611 
 
 v. New Bedford (108 Mass. 261 [1871]), 
 
 272, 274 
 
 v. Newberry (L. R. 7 O. B. 31) -17 
 
 v. N. Y. El. R. Co. (Super.) (30 N. 
 
 Y. Supp. 547) 644 
 
 v. Riddick (Iowa) (69 N. W. Rep. 
 
 1039) 547 
 
 v. Shiveley (n Oregon 215) 377 
 
 v. Ward (Colo.) (56 Pac. Rep. 573 
 
 1899]) 254 
 
 lts Canal Co. v. Swindon Water Co. 
 
 (L. R. 9 Ch. 455) 60,71 
 
 Wimbledon Conservators v. Dixon (i 
 
 Ch. D. 362) 681 
 
 Wimer v. Simmons (Oreg.) (39 Pac. Rep. 
 
 6) 75, 76 
 
 Winchester v. Osborne (61 N. Y. 555) 22*. 
 
 Winfield W. Co. v. Winfield (51 Kan. 104) 147 
 Winkley v. Salisbury Mfg. Co. (Mass.) (14 
 
 Gray 443) 374 
 
 Winn v. Abeles (35 Kan. 85) 518 
 
 v. Ulster Co. Sav. Inst. (N. Y.) (37 
 
 Hun 349) 669 
 
 Winnipisiogee Paper Co. v. New Hamp- 
 shire Land Co. (C. C.) (59 Fed. Rep. 542), 
 
 521, 576, 583 
 
 Winona v. Huff (n Minn. 114) 703 
 
 Winslow v. Cincinnati (6 Ohio N. P. 47) 706 
 
 Wi! 
 
 Winslow v. Gifford (6 Cush. 327) 352,354 
 
 Winter v. Peterson (24 N. J. Law 524).... 319 
 
 v. Stephens (9 Allen 526) 532 
 
 Wirt v. McEnery (6 Am. & Eng. Corp. 
 
 Cases 105) 704 
 
 Wisconsin Cent. R. Co. v. Cornell Univ. 
 
 (52 Wis. 537) 739 
 
 Wisconsin Imp. Co. v. Manson (43 Wis. 
 
 255) 24* 
 
 Wisconsin Teleph. Co. v. Eau Claire St. 
 
 Ry. Co. (3 Amer. El. Cas. 383 [1890]), 
 
 295, 296, 831 
 Wise v. Burton (Cal.) (14 Pac. Rep. 678, 
 
 683 [1887]) 605, 630 
 
 Wisher v. N. Y. & N. E. R. Co. (135 
 
 Mass. 197 [1883]) 685 
 
 Witheral v. Muskegon B. Co. (68 Mich. 
 
 48) 243 
 
 Withers v. Buckley (U. S.) (20 How. 84) 241 
 Wixon v. Bear River, etc., Co. (24 Cal. 367) 75 
 Wolf v. St. Louis I. W. Co. (10 Col. 541).. 87 
 Wollman v. Ruehle (75 N. W. Rep. 425)... 467 
 Womerslev v. Church (17 L. T. N. S. 190) 269 
 Wood v. "Armour (Wis.) (60 N. W. Rep. 
 
 791) 528 
 
 v. Edes (2 Allen (Mass.) (580) 83 
 
 v. Fowler (26 Kan. 682) 164 
 
 v. Kelly (30 Me. 47) 421 
 
 v. Sutcliffe (2 Sum. U. S. 163) 202 
 
 v. Wand (3 Exch. 748) 1720 
 
 v. Willard (37 Vt. 377) 629 
 
 Woodbury v. Evans (N. C.) (30 S. E. Rep. 
 
 2 [1898]) 601 
 
 v. Short (17 Vt. 387) 107 
 
 v. Venia (Mich.) (72 N. W. Rep. 189 
 
 [1897]) 553, 579, 612, 620 
 
 Wood Co. Pet. Co. v. West Va. Trans. Co. 
 
 (28 West Va. 210) 283 
 
 Wooden v. Mt. Pleasant L. & Mfg. Co. 
 
 (Mich.) (64 N. W. Rep. 329) 84,85 
 
 Woodman v. Pitman (79 Me. 456). .164, 168, 240 
 
 v. Spenser (54 N. H. 507) 449 
 
 Woodruff v. Paddock (N. Y. App.) (29 
 
 N. E. Rep. 1021) 650 
 
 Woodruff, etc., I. Wks. v. Adams (37 Conn. 
 
 233) 8 
 
 Woodruff Place, Town of, v. Raschig 
 
 (Ind.) (46 N. E. Rep. 990) 455 
 
 Woods v. Hull (Tex.) (38 S. W. Rep. 
 
 165) 528 
 
 v. Miller (52 N. Y. Supp. 217) 308 
 
 v. Moulevatto C. & T. Co. (Ala.) (3 
 
 So. Rep. 475 [1888]) 627 
 
 Woodward v. Aborn (35 Me. 271) 263 
 
 v. Atwater (3 Iowa 61) 465 
 
 v. Nims (130 Mass. 70 [1881]), 
 
 547, 550, 552, 576 
 Woodworth v. Genesee P. Co. (N. Y.) (18 
 
 App. Div. 510) 105,212 
 
 Woodyear v. Schaefer (57 Md. i). ..202, 204, 209 
 
 Woolman v. Garringer (i Mont. 535) 75,76 
 
 Worcester Gas Lt. Co. v. Co. Comm'rs 
 
 138 Mass. 289 [1885]) 101 
 
 Wormser v. Brown (Sup.) (25 N. Y. Supp. 
 
 553) 308 
 
 Worsham v. Morgan (Tex.) (28 S. E. Rep. 
 
 918) 601 
 
 Worth v. Dawson (i Sneed (Tenn.) 59) 703 
 
 Worthington v. Hylyer (4 Marr. R. 196), 
 
 547, 557 
 Worthley v. Burbanks (Ind. Sup.) (45 N. E. 
 
 Rep. 779) 521 
 
 Wren v. Parker (Conn.) (18 Atl. Rep. 790) 523 
 Wright v. Syracuse, etc., Ry. Co. (Sup.) 
 
 (36 N. Y. Supp. 901) 759 
 
 v. Victoria (4 Tex. 375) 704 
 
 v. Woodcock (86 Me. 113) 62 
 
 Wyandotte Club Co. v. Sells (Com. PI.) (3 
 
 Ohio N. P. 210). 271 
 
 Wyatt v. Gt. W. Ry. (6 Best & Smith 709) 318 
 v. Larimer & Weld Irr. Co. (Colo. 
 
 App.) (29 Pac. Rep. 906, 33 Pac. Rep. 
 
 144) 75. 77 
 
 Wyman v. State (13 Wis. 663) 703 
 
TABLE OF CASES. 
 
 Ixin 
 
 Y. 
 
 Vanish v. Tarbox (Minn.) (51 N. W. Rep. ' 
 
 1051 [1892]) 573, 578 
 
 Yates v. Milwaukee (U. S.) (10 Wall. 497) 421 
 
 v. Shaw (24 111. 367) 500 
 
 Yazoo, etc., R. Co. v. Davis (Miss.) (19 
 
 So. Rep. 487) 191 
 
 Yeamans v. Yeamans (99 Mass. 585 [1868]) 486 
 Yelverton v. Steele (40 Mich. 538 [1879]).. 528 
 
 Yetzer v. Thoman (17 Ohio St. 130) 518 
 
 York Teleph. Co. v. Keesey (Com. PI.) (5 
 
 Pa. Dist. Rep. 366) 8r, 
 
 Young v. Conrad (Ky.) (38 S. W. Rep. 497) 677 
 
 v. Reubin (U. S.) (i Ball. 119) 486 
 
 v. Starkey (i Cal. 426 [1851]) 482 
 
 v. Yarmouth (Mass.) (9 Gray 386) 812 
 
 Yunker v. Nichols (i Colo. 551) 77 
 
 Z. 
 
 Zabraski v, Jersey City, etc., R. Co. (13 N. 
 
 J. Eq. 314) 797 
 
 Zehren v. Milwaukee Elec. Ry. & L. Co. 
 
 (74 N. W. Rep. 538 [1898]) 798 
 
 Zeibold v. Foster (Mo. Sup.) (24 S. W. 
 
 Rep. 155) 579 
 
 Zeilin v. Rogers (21 Fed. Rep. 103) 522 
 
 Zeller v. Southern Yacht Club (34 La. 
 
 Ann. 837) 381 
 
 Ziegele v. Richelieu & O. Nav. Co. (Sup.) 
 
 (38 N. Y. Supp. 1022) 668 
 
 Ziegler v. Chapin (126 N. Y. 342) 142 
 
 Zimmler, Adm'r, v. San Luis W. Co. (57 
 
 Cal. 221) 75 
 
 Zirngibl v. Calumet & C. Canal & Dock 
 
 Co. (111. Sup.) (42 N. E. Rep. 431) 528 
 
 Zundel v. Baldwin (Ala.) (21 So. Rep. 420) 546 
 
 
 
THE LAW OF OPERATIONS PRELIMINARY TO 
 
 CONSTRUCTION IN ENGINEERING 
 
 AND ARCHITECTURE. 
 
 PART I. 
 
 ( 
 
 PROPERTY. ESTATES IN, AND TITLE TO, 
 REAL PROPERTY. 
 
 CHAPTER I. 
 INTRODUCTION. PROPERTY DEFINED. 
 
 1. Introduction. Before beginning the construction of an engineering or 
 architectural structure or plant, it is essential to secure the land for a site or 
 a right of way and those natural features incident to, or contained in, the 
 land the purpose of which it is the prime object to utilize. Whether the 
 object be the appropriation of wealth contained in Mother Earth, or the 
 harnessing and utilization of Nature's forces, or the development and 
 enjoyment of the industrial, commercial, and traffic privileges necessary to 
 the comfort of mankind, the first step is to secure such rights and privileges. 
 
 Nothing of construction should be done until these rights have been 
 secured and their ownership or control determined positively. The success, 
 of an enterprise cannot be assured until these questions are passed upon and 
 settled, and it is determined by the far-sightedness and prophetic discernment 
 of men of close observation and study. Such questions are usually left to,, 
 and determined by, promoters, bankers, business men, and lawyers, and it is 
 the legitimate business of the last-named class. These men are controlled 
 chiefly by the strictly legal, commercial, and revenue-paying features of the 
 enterprise without regard to the construction and operation features of which 
 they know and realize so little. The requirements of the structure itself, 
 the effects of its operation, or its very existence even, the things which affect 
 its stability, preservation, and life, what changes and additions will be 
 
I. OPERATIONS PRELIMINARY TO CONSTRUCTION. 2 
 
 necessary to its gro>vih, development, and expansion, are considerations which 
 are too often overlooked and neglected. 
 
 These are legitimate things for the lawyer to consider if he can be 
 brought to realize the importance of them, which he does not, but " Sufficient 
 unto the day is the evil thereof " is too often his motto. 
 
 Without practical experience in engineering and architectural operations, 
 or in the management of estates where large building operations have been 
 carried on, the average lawyer has little opportunity to study or observe what 
 are the results and requirements that attend these operations. Moreover, 
 lawyers are a very busy class of men, absorbed in many different cases, with 
 varying conditions and circumstances, and they do not, and cannot, give to 
 one case the close study and observation that an engineer in charge of work 
 can devote to it. The erection of the structure is the one and perhaps the 
 only case in hand with the engineer in charge of the work. It receives his 
 careful inspection by day and his thoughtful study by night. It is his work, 
 becomes a part of his daily life and of himself. How can a lawyer upon a 
 meagre statement of facts about a subject (a structure) of which he has only a 
 most superficial knowledge, or upon a cursory examination of matters and 
 phenomena of which he is equally ignorant, be expected to give judgment 
 that will square with that of an engineer who, with a general knowledge of 
 law, has had time and opportunity to study the case and look up the law 
 in regard to it ? 
 
 "Be sure you are right and then go ahead" is a good motto for the 
 engineering profession as it is for business men, and it is applicable in many 
 more instances in the daily practice of engineers and architects, contractors 
 and builders, than in any other vocation. " But how are we to know before- 
 hand that we are right ? " ask these fabriarchs of the nation's weal. 
 
 The successful undertaking and operation of an enterprise require the 
 thoughtful consideration of many questions. In the usual course of business 
 there is a preliminary examination and report of the engineer upon the 
 feasibility of the project and the difficulties attending its construction, an 
 estimate of the probable cost of construction and operation, and the com- 
 parison of these with the anticipated revenues, and the clear presentation of 
 these subject-matters to probable investors. This is the scope of the usual 
 investigation as embodied in the report, but the lawyer and engineer or 
 architect should have in their private memoranda much that is not embodied 
 in the report submitted. Their investigation must include much more. It 
 should contain a review not only of present actualities, but of future possi- 
 bilities and probable consequences. It should foresee the probable invasion 
 of, or the interference with, tjie rights of others. It should anticipate the 
 growth and expansion of the works, the increased traffic likely to result, the 
 growing demands that may be made upon the structure, alterations rendered 
 necessary by change in the motive power or means employed, connections 
 
3 INTRODUCTION. PROPERTY DEFINED. 2. 
 
 and terminal facilities, the necessity of auxiliary plans or ways to supply~or 
 promote traffic, the possibility of rival competition, and the thousand and 
 one questions which arise in connection with these questions. 
 
 The first and fundamental acquisition to the government is property, 
 land, or territory, and the first essential thing to an engineering enterprise is 
 property (land), the foundation upon which the structure may stand, namely, 
 a site a site free from defects of soil and impervious to influences that may 
 undermine and destroy the works; a site unclouded with defects of title, 
 unencumbered with easements and burdens which provoke expensive and 
 ruinous litigation; a site free from the dangers of injunction and the em- 
 barrassments of competition. 
 
 These are considerations which do not always enter into the determination 
 of a site, right of way, or location for engineering works, yet when brought 
 to the attention of business men their importance is fully appreciated, and 
 the professional man or employee who shows a due and proper consideration 
 for such questions is pretty certain also to be appreciated. 
 
 To understand and realize the importance of these questions requires a 
 fundamental knowledge of the law of property, of the rights incident thereto, 
 and of the burdens attendant thereon. 
 
 Almost all, if indeed not all, of the operations in engineering and archi- 
 tectural construction have for their object the improvement or utilization of 
 property. Sometimes such operations require the destruction of property or 
 of rights in property, but this is seldom the object of the operation. At all 
 times they involve the use of property, not only for the site of the structure, 
 but as materials of construction. These questions must always be considered 
 before construction work is begun, and it is apparent that in treating the 
 subject of the Law of Operations Preliminary to Construction the first con- 
 sideration is that of property itself and of property rights. A large part of 
 the book will be devoted to the law of those property rights which must be 
 considered in projecting new enterprises and in carrying out and completing 
 works. It will be necessary, therefore, to define briefly many of the terms 
 which the reader will meet, such as property in its various characters and 
 conditions, and the kinds of property, together with the means by which it- is 
 conveyed, and the estates therein created. 
 
 2. Definition of Property. Property, in the strict legal sense, is that 
 right to the use and disposition of a thing which one may lawfully exercise to 
 the exclusion of all other persons. The term is often used to indicate the 
 thing itself which is the subject of the property, rather than the intrinsic right 
 itself. The word extends to every species of valuable right and interest, 
 including real and personal property, easements, franchises, and other incor- 
 poreal interests. It includes everything that is the subject of owner- 
 ship. 
 
 Property has been defined as being the right to possess, use, acknowledge, 
 
3- OPERATIONS PRELIMINARY TO CONSTRUCTION. 4 
 
 and dispose of a thing. Labor has been held to be property. A person's 
 knowledge which is the result of training, education, and application upon 
 the part of the possessor has been held to be property. The profession of a 
 priest has been held to be his property, and the prohibition of the exercise of 
 that profession without a hearing is contrary to the law of the land. 1 A 
 prospective patent has been held to be property under the law authorizing the 
 issue of stock in consideration of labor or property. 2 A right of action has 
 been held to be property as much as a corporeal possession. 3 
 
 A mistaken belief frequently entertained by laymen is that because one 
 owns a thing he can make whatever use of that thing he may choose. One 
 seldom can say that he absolutely owns anything. Land is subject to taxa- 
 tion, easements, and other burdens too numerous to mention. Streams are 
 subject to water privileges, water rights, and easements not only of riparian 
 owners, but of the public in general. Streets, though owned by abutting 
 owners, are subject to easements of the public for travel, and in some juris- 
 dictions to numerous other burdens and easements. The owner of land may 
 improve it, but frequently he is required to conform to certain ordinances or 
 police requirements, and to maintain it in such a manner as shall not injure 
 or threaten injury to other persons or to other estates. He may be the 
 creator of a new thing, but he must protect it and be reasonably careful that 
 it does no harm to others. The laws require of him that he shall treat his 
 own offspring with such discretion and consideration as are in keeping with 
 good morals and public policy. One can hardly be said to be the absolute 
 owner of anything in the sense that he may make whatever use of the object 
 of the ownership he may see fit. Property in anything is not absolute, and 
 one has not an unqualified control of anything he may own and possess. It 
 is the proper and consistent use and enjoyment of the thing so as to not 
 prejudice the privileges, enjoyment, and rights of others. 
 
 3. Real and Personal Property. Property is divided into two classes, 
 real and personal Real property is property in real things, and real things 
 are such as include lands, tenements, and hereditaments. An accurate 
 definition includes such things as descend to the heir. The visible object 
 which lies at the foundation of all real property is land, but all rights in land 
 are not included in real property. Tenements do not refer to the physical 
 nature, but to the peculiar manner in which they are held, the term being, 
 however, not coincident with the word " land," but (i) they include lands in 
 so far as the interests therein are real property, and (2) larger than lands, in- 
 cluding certain other rights capable of tenure, such as offices. Hereditaments 
 (such things as descend to an heir) is a larger term, but it does not include 
 all of the former, since there are certain estates in tenements which are in 
 their nature incapable of inheritance, such as an estate for life, yet they have 
 
 1 O'Hara v. Stark. 90 Pa. St. 477. 2 Whitehall v. Jacobs, 75 Wis. 479. 
 
 3 Power v. Harlow, 57 Mich. in. 
 
5 INTRODUCTION. PROPERTY DEFINED. $. 
 
 all incidents of real property. In this country, both by statute and common 
 law, the term real estate is generally used for the words lands, tenements, and 
 hereditaments. In different States the definition may vary slightly, and the 
 fine distinctions are hardly worth going into for the purpose of this book. 
 
 Hereditaments include everything which may descend to the heir at the 
 death of the owner. They are usually divided into corporeal and in- 
 corporeal, or, in other words, into two classes, one of which has a material 
 existence, and the other only an existence in effect, as the right to some profit 
 or use in land. Tenements properly means all things that can be held in 
 tenure at the common law. It includes more than the word " lands," com- 
 prising lands and the rights issuing out of, and concerning, lands. 
 
 4. Land. Land is the surface of the earth, with whatever is attached to it 
 by nature or by the hand of man, and all that is contained within or below 
 it. Land comprehends all things of a permanent, substantial nature, being a 
 word of very extensive signification. As defined by Sir Edward Coke, 1 
 <; Land comprehends in its legal signification any ground, soil, or earth what- 
 soever, as arable meadows, pastures, woods, moors, waters, marshes, furzes, 
 and heath. It legally includes also houses, castles, and other buildings; for 
 they consist, ' ' said he, ' ' of two things : land, which is the foundation, and 
 structure thereupon, so that if I convey the land or ground, the structures 
 and buildings pass therewith. Land hath also, in its legal signification, an 
 indefinite extent, upwards as well as downwards. It includes not only the 
 face of the earth, but everything under it or over it. If a man grants all his 
 lands, he grants thereby all his mines of metal and other fossils, his woods, 
 his waters, and his houses, as well as his fields and his meadows." 
 
 In like manner the owner bf land is held to be entitled to the possession 
 and ownership of what naturally falls upon his land, such as rain, hailstones, 
 etc. In the Supreme Court of Iowa it was held that an aerolite or meteor 
 which fell from the sky was the property of the owner of the land on which it 
 fell, rather than of the person who first found it and took it up. 2 
 
 5. Use of the Word "Land." The word " land " is sometimes restricted 
 in its application, as in mechanics' lien laws, where certain priorities are 
 given and preferred to the extent of the value of the land at the time of the 
 making of the contract with the mechanic or materialman. Land in such a 
 case has been held to mean only the ground with such improvements upon it 
 as existed at the time of the execution of the contract or mortgage. 3 
 
 In a statute, under a strict construction, the word " land " has been held 
 not to include an easement. An incorporated waterworks company which was 
 empowered to lay pipes in the streets, roads, etc., and did lay pipes accord- 
 ingly, was assessed with the land tax as holders of land in a district within 
 which it had laid pipes down, but in which it had no other property. It was 
 
 1 2 Bl. 16. 2 See Chicago Law Jour., Nov. 24, 1892. 
 
 3 12 Amer. & Eng. Ency. Law 655. 
 
6. OPERATIONS PRELIMINARY TO CONSTRUCTION. 6 
 
 held that it was improperly assessed with the tax. 1 The word " land " will 
 include an easement if such construction appears to be in accordance with 
 the intention of the legislature. 8 
 
 A bridge has been held to be land within the meaning of the charter of a 
 turnpike company which was required to pay to the owners of the land over 
 which the road should pass all damages sustained, whether the county owned 
 the fee of the land in the bed of the river over which it was erected or only 
 the easement to maintain a bridge there. 3 The track of a railroad company 
 affixed to the land is " land," and is liable to taxation even though the fee 
 of the land on which the track is laid is not included in the conveyance. 4 
 So are the pipes and mains of an aqueduct company which are laid through 
 fields and highways. 5 Telegraph-wires strung upon the poles of a railroad 
 company on its right of way, under an agreement by which the telegraph 
 company was to operate the line and the railroad company to purchase the 
 wires upon the termination of the agreement, pass under a sale of judgment of 
 foreclosure as real estate, and the purchaser may restrain the telegraph com- 
 pany from removing the wires by an injunction. 6 
 
 Land, within the meaning of the word as used in the statute in reference 
 to property being liable to taxation and assessable as such, has been held to 
 include the tunnels, track, substructure, superstructure, stations, viaducts, 
 and masonry of the New York and Harlem Railroad, situated on and under 
 Fourth Avenue, in the city of New York. 7 The court held that, as regards 
 taxation, it is immaterial whether a railroad is laid upon the surface, placed 
 upon pillars, or carried through a covered way or tunnel. The structure 
 adopted to sustain it or facilitate or protect its use is, within the meaning of 
 the term, " land," and for it the company is liable to be taxecl. 
 
 Under a statute relieving the track of a railroad and the land on which it 
 was constructed from taxation, and declaring that they shall not be deemed 
 real estate, it was held that this release from taxation was limited to the 
 franchise or right of way, and did not include the depots, engine-house, turn- 
 tables, car-house, and other buildings or erections. 8 
 
 6, Personal Property, Personal property embraces all objects and rights 
 which are capable of ownership, except freehold estates, lands, and incor- 
 poreal hereditaments issuing therefrom or exercisable within the same. 
 There are certain kinds of personal property which are intimately identified 
 
 Governor v. Bowley, 17 Q. B. 360. 5 Willard v. Pike(Vt.), 9 Atl. Rep. 907 
 
 2 Gr. Western R. v. Swindon R. Co., 52 [1887]. 
 
 L. J. R. Ch. 306; s. c., 53 L. J. R. Ch. 1075. 6 N. Y. O. & W. R. Co. v. Western U. T. 
 
 3 Freeholders v. Redbank Tpk. Co. Co., 36 Hun 205 [1885]. 
 
 (N- J-X 3 C. E. Green 91. And see States. 7 People v. Commrs. of Taxes, 101 N. 
 
 Tichenor, 51 N. J. L. 345, and Cleveland, Y. 322 [1885]. 
 
 etc., Ry. Co. v. Knickerbocker Trust 8 P. S. & P. R. Co. v. Saco, 60 Me. 
 
 Co., 86 Fed. Rep. 73. 196. 6V,? .Providence Bank v. Billings, 4 
 
 4 People v. Cassity,-46 N. Y. 46; Neary Pet. (U. S.) 563, and Phila. & Wilmington 
 v. Philadelphia, etc., R. Co. (Del.), 9 R. Co. v. Maryland, 10 How. (U. S.) 
 Atl. Rep. 405 [1887]. 393. 
 
7 INTRODUCTION. PROPERTY DEFINED. 6. 
 
 with real property and are subject to some of the rules governing the latter. 
 These are: (i) heirlooms, which are personal chattels, and descend to the heir 
 together with the inheritance in accordance with custom; (2) growing crops, 
 which pass to the executor and not to the heir; (3) emblements, which are 
 the right of the tenant to the profit of his crops; (4) fixtures, which are per- 
 sonal chattels that a temporary possessor has annexed to the land and that 
 by law he may take with him when he leaves; (5) several kinds of personal 
 property, such as domestic animals and wild animals under certain qualified 
 rights; (6) property in ships, governed by special laws of registry; (7) moneys 
 and special kinds of securities, such as negotiable paper, insurance policies 
 and annuities, patents, copyrights and trade-marks, seats in exchanges, debts, 
 and demands, including those of guaranty and suretyship, shares of stock, . 
 good-will, names, and proprietary secrets. 
 
 The term ' ' personal property ' ' includes the same kind of property as the 
 word "chattels," and chattels are divided into two classes: chattels real and 
 chattels personal. Chattels real are interests which issue out of, or are annexed 
 to, real estate, and which cannot be moved from place to place. Such is a 
 lease of land for a term of years. It' is a chattel though the rent be only 
 nominal and the term be ninety or a thousand years. Any interest in land 
 that is less than a freehold is a chattel real. 
 
 A house built upon blocks or pillars for permanency, and not to serve a. 
 temporary purpose, becomes part of the land ; but if it be sold and removed, 
 it then becomes a chattel. 1 If a person enters upon the land of another 
 without his permission and builds a structure thereon in a permanent 
 manner, the structure will become a part and parcel of the land. When a 
 building has been erected upon land, with the consent of the owner, for the 
 benefit of the builder, it will be the personal property of the builder, and it 
 will remain so though the land and building be sold to different persons. 2 
 
 Chattels personal are things movable which may be annexed to or are 
 attendant on the person of the owner, and may be carried about with him. 
 Such are animals, household goods, money, jewels, corn, garments, etc. 
 The term includes every kind of property which lacks the two essentials of 
 real estate, viz., immobility and indeterminate duration as to time, and also- 
 such things as are not attached to real estate. Chattels personal are also 
 divided into corporeal and incorporeal things. Corporeal things include all 
 things being in themselves capable of motion or of being moved, and that 
 may be perceived by the senses, and may be seen, touched, and taken posses- 
 sion of. Animals, alive or dead, manufactured goods or materials, and every- 
 thing capable of being attached and not affixed to the soil are included in 
 this class. Incorporeal things are such as a man has not the occupation of, 
 
 Walter v. Sample, 71 111. 430; Railroad 2 3 Amer. & Eng. Ency. Law 166, 
 
 v. Goodwin, in 111. 273; Parish v. Jones, citing New England cases. 
 8 Cush. (Mass.) 184. 
 
7- OPERATIONS PRELIMINARY TO CONSTRUCTION. 8 
 
 but merely has the right to occupy, the possession of which, however, he 
 may recover by an action at law, whence it is called a chose in action* 
 
 7. Fixtures. The subject of fixtures is one that is of special interest to 
 persons contemplating construction work. Many structures erected and 
 many improvements undertaken, are placed upon land not owned absolutely 
 by the builder or owner of the improvement. Such structures may be built 
 only for temporary uses or with a view to being removed, and it is therefore 
 important that the property in them be understood and determined. 
 
 A fixture is an article which was a. chattel, but which, by being annexed or 
 .affixed to real property by some one having an interest in the soil, becomes 
 a part and parcel of it. The annexation may be actual or constructive. 
 Removable fixtures are those which the person annexing them to the land 
 may legally remove against the will of the owner of the land. ; In ascertain- 
 ing whether or not a particular thing is a fixture, the courts have agreed 
 upon certain rules to be applied to decide if the article in question be a 
 fixture. These rules have been reduced to three, which require (i) that 
 the thing in question shall be actually annexed to the realty or to something 
 pertaining thereto; (2) that it should be appropriate to the use or purpose of 
 that part of the realty with which it is connected ; and (3) that there should 
 have been an intention on the part of the one making the annexation that it 
 should be a permanent accession to the freehold. The intention to make the 
 annexation may be inferred from the following facts : (a) The nature of the 
 article annexed ; (b) the relation of the party making the annexation ; (c) the 
 structure and mode of annexation; (d) the purpose and use for which the 
 annexation was made. 
 
 In many cases the question as to whether or not the chattel could be 
 removed without injury to the freehold or to itself has been held important in 
 deciding whether a certain article was a fixture or not. 1 This rule is not all- 
 controlling. Many cases hold that the intention of the party making the 
 annexation is the chief element to be considered in determining w r hat are 
 fixtures, others that it depends upon the expressed or implied under- 
 standing of the party concerned, and other cases hold that the test is 
 the adaptation of the article to the uses and purposes to which the realty 
 is applied. 2 
 
 Whether or not a particular article is a fixture is a mixed question of law 
 and fact. There is great conflict both in the text-books and adjudged cases 
 as to what is such an annexation of chattels to realty as to make them a part 
 of the realty and to pass them by a conveyance of the realty. Any attempt 
 to reconcile the authorities of the different states on the subject would be futile, 
 and to review them would be an endless task. Some instances are given which 
 will benefit engineers, architects, and surveyors, and guide them in the con- 
 *8 Amer. & Eng. Ency. Law 43. 2 8 Amer. & Eng. Ency. Law 44. 
 
 * See Part IV, Sees. 641-861, infra. 
 
9 INTRODUCTION. PROPERTY DEFINED. 8, 
 
 sideration of other cases which may come up in their practice, but these same 
 cases might be decided differently in different states. 
 
 Some chattels are held to be fixtures though they are not annexed to the 
 realty. Articles, whether fast or loose, necessary or convenient for the con- 
 struction of one kind of business and which would be useless in another, if 
 they be indispensable in carrying on a specific business become a part of the 
 realty. Such reasoning, however, is not to be applied to live stock as upon 
 a farm. Articles which have been needed for use in connection with the 
 premises, and which are more or less necessary to their enjoyment, are some- 
 times held to be annexed constructively. A millstone detached from a mill 
 for repairs, or by accident, has been held a fixture. Title-deeds, deer in 
 a park, and fish in a pond have been held to belong to. and to pass with the 
 estate. Windows, doors, blinds, Venetian blinds, fences, etc., belong to the 
 land as being constructively annexed to it. An engine actually affixed to 
 and in the soil, and which cannot be removed without tearing down the 
 masonwork and house which cover it, is a fixture. A steam-engine and 
 boiler bought by the owner of a mill and left upon the ground with an inten- 
 tion of placing them in the mill were held to become a part of the realty. 
 Wood-working machinery in a sawmill was held to pass on the sale of the 
 real estate. Engines and machinery for a sawmill erected by lessees under 
 agreement with the landlord that they should have the right to remove them 
 at the end of their term are held as fixtures by the purchaser of their interests 
 in the real estate under the lease. Machinery, though generally regarded 
 as personal property, will, when erected by the owner of land for the better 
 enjoyment of the freehold, pass to his heir, and does not belong to the 
 executor. When machinery goes to the heir, all parts that belong to that 
 machinery, although capable of being detached and of being used in a de- 
 tached state, go with it. Looms, cards, spinning-frames, etc., fastened to 
 the floor in a cotton-mill to steady them, have been held not fixtures. 
 Machinery annexed in a substantial manner to the building has been held 
 not a fixture, tinless there was a unity of title to the realty. Electric-light 
 wires fastened to poles in the street and connecting with the plant have been 
 held a part of the machinery, and to pass in a mortgage upon the lot upon 
 which the plant is situated. 
 
 8, Agreements in Regard to Fixtures, In construction work, materials 
 and machinery are sometimes purchased and delivered with the express 
 understanding and agreement that the title therein shall not pass until the 
 goods are paid for; and the effect of such an agreement upon the rights of 
 other parties is a matter of interest, as well as the effect upon the ownership 
 of the materials themselves. 1 Rails and other property purchased and affixed 
 to a part of the railroad were held by the lien of the mortgagee in favor of a 
 good-faith creditor as against any contract, between the furnisher of the 
 
 1 See Wait's Engin. & Arch. Jurisp., Sees. 27^1-273. 
 
8. OPERATIONS PRELIMINARY TO CONSTRUCTION IO 
 
 materials and the railroad company, containing stipulations that the title to 
 the property should not pass until paid for. 1 However, if this contract 
 between the materialman and the railroad company had been registered in 
 the town or county clerk's office, so that the mortgagees or their representa- 
 tives had constructive notice thereof, the case might have been decided 
 differently. 
 
 It has been held that intention of alteration will not convert a chattel into 
 a fixture. It is not the intention to make a thing annexed to or placed upon 
 the freehold personal property that alters its legal character as a fixture, but 
 the intention to make a permanent or temporary annexation. Erections 
 made by the owner of real estate are presumed to be permanent. Machinery 
 may remain chattels for all purposes even though attached to the freehold by 
 the owner, if the mode of attachment indicates that it is set up for more con- 
 venient uses, and not to make it an adjunct of the building or soil. 
 
 Tapestries, pictures on panels, frames filled with satin and attached to the 
 walls, statues, figures, vases, and stone garden-seats have been held in Eng- 
 land to be fixtures. The conveyance of a sawmill and appurtenances passed 
 title to the chains, dogs, and bars which were in place when the conveyance 
 was made. An organ in a church affixed in a recess made on purpose for it, 
 was held a fixture. 
 
 A house, mill, and machinery sold to the owner of land on condition that 
 they should remain personal property, with title in seller until paid for, do 
 not become incorporated in the realty until the conditions are fulfilled. 2 
 
 A mortgagee is entitled to buildings which are on the premises of the 
 mortgagor at the time that the mortgage was given, notwithstanding the fact 
 that the life-tenant and mortgagor had agreed that the buildings should 
 remain personal property; and the purchaser at sale on foreclosure is entitled 
 to the same forever. 3 
 
 In New York it has been held that the fixtures must be of such a nature 
 as to be capable of becoming personal property in order to subject them to 
 an agreement of this kind. Thus, a house or building that from its size or 
 the materials of which it is built or the manner in which it is attached to the 
 land could not be removed without practically destroying it, would not 
 become a mere chattel by means of any agreement that might have been made 
 concerning it. So it has been held of the separate materials of a building, 
 and of things fixed into the wall which were essential to its support. It 
 was held impossible that they should be subject to an arrangement between 
 the owners by which they should become chattels. 4 Buildings erected by the 
 
 1 Porter v. Pittsburg Steel Co. 122 U. S. 2 Harkey v. Cain (Tex.), 6 S. W. Rep. 
 
 267; Dunham v. Railroad Co., i Wall. 637. 
 
 (U. S.) 254; Fosdick v. Schall, 99 U. S. 3 Stevens v. Rose (Mich.), 13 West Rep. 
 
 235-251; Dillons. Barnard, 21 Wall. 430; 765. 
 
 Hunt v. Bay State Iron Co., 97 Mass. 4 Ford v. Cobb, 20 N. Y. 344. And see 
 
 279. Fortman v. Gupper, 14 Ohio St. 558. 
 
II INTRODUCTION. PROPERTY DEFINED. 8. 
 
 license of an owner of the land by another person upon the land of the 
 licensor pass to the good-faith purchaser of the land who has no knowledge 
 of the license. 1 When personal property is wrongfully annexed to the realty 
 by the owner of the land, the remedy for the wrong is against the wrong- 
 doer, and not against an innocent purchaser of the land. 2 A building con- 
 structed upon land is real property, and it is not converted into personal 
 property by being blown down by a tempest. The fragments still belong to 
 the realty. 3 
 
 Railroad ties wrongfully annexed to the right of way by a subcontractor 
 become a part of the railroad, and trover will not lie against the railroad 
 company for their conversion. 4 Fixtures erected by one person upon the 
 land of another, by license or agreement, pass under conveyance of the land 
 to the purchaser in good faith. 5 
 
 Agreements are frequently made 'between the parties who may lay claim 
 to the fixtures to determine the character of annexations to real estate. Such 
 contracts frequently make personalty what the law regards as realty, and 
 what the law regards as personalty they seek to make realty, and it is often 
 held that such agreements will be enforced. This purpose is subject, how- 
 ever, to several modifications. An agreement between an owner of land and 
 the owner of fixtures that the latter shall remain personal property cannot 
 affect the rights of a bona-fide purchaser of the land. 6 In general, it may be 
 said that fixtures pass to the purchaser in good faith of real estate, notwith- 
 standing an agreement between the owner of the land and the seller of the 
 fixtures that they shall remain personal property. A purchaser in good faith 
 must not, of course, have had notice of such an agreement, because with such 
 notice he is not a bona-fide purchaser. Such agreements are valid between 
 the parties making them when the rights of third persons are not affected. 7 
 Such an agreement generally will be governed by the statute of frauds, 8 but 
 some cases have held that the agreement may be proven by parol evidence. 9 
 
 Where a purchase-money mortgagee verbally agreed with the grantee of the 
 mortgagor that, on payment to him of a sum sufficient to entitle the grantor 
 to the conveyance, he might remove the plant of a marine railway on the 
 
 1 Price v. Case, 10 Conn. 375. And see derson, 33 Kan. 264; Hoax v. Seat, 26 
 Priestly v. Johnson, 67 Mo. 632. A/soTap- ^ Mo. 178; Havana. Emery, 33 N. H. 66; 
 ley v. Smith, 18 Me. 12. * Powers v. Dennison, 30 Vt. 752. 
 
 2 Voorhees v. McGinnis, 48 N. Y. 278. 6 Roswand v. Anderson, 33 Kan. 264; 
 See also Fryatt v. Sullivan Co. (N. Y.), Bartholomew v. Hamilton, 105 Mass. 
 5 Hill. 116; Frankland v. Moulton, 5 Wis. 239; Lacustrine Fer. Co. v. L. G. & Fer. 
 i; Woodruff, etc., I. Wks. v. Adams, Co., 82 N. Y. 476; Smith v. Wagoner, 50 
 37 Conn. 233; Mott v. Palmer, i N. Y. Wis. 155. 
 
 564, Knowlton v. Johnson, 37 Mich. 7 Badger v. Batavia Paper Co., 70 111. 
 
 47. 302; Sisson v. Hibbard, 75 N. Y. 542; 
 
 3 Rogers v. Gillinger (Penn.), 6 Amer. Eaves v. Estes, 10 Kan. 314; Otto v. 
 Law Reg. 430 [1858]. Specht, n Cent. Rep. 244. 
 
 4 Detroit & B. C. R. Co. v. Bush, 43 8 Myers v. Schemp, 67 111. 469; Trulls. 
 Mich. 571. Fuller, 28 Me. 545. 
 
 5 Prince v. Case, 10 Conn. 375; Wilgus 9 Frederick v. Devol, 15 Ind. 357; 
 . Gettings, 21 la. 177; Roswand v. An- Walker v. Schindel, 58 Md. 360. 
 
8. OPERATIONS PRELIMINARY TO CONSTRUCTION. 12 
 
 premises, it was held that the agreement was binding. 1 Fixtures erected by a 
 person in possession of land under a contract of purchase from the owner 
 become a part of the realty. * 
 
 Without an expressed agreement or a stipulation which permits the 
 removal of fixtures after the expiration of the term, fixtures must be removed 
 during the time for which premises are rented and while the relation of land- 
 lord and tenant exists under the original lease. It does not matter whether 
 the lease expires or is terminated by re-entry on forfeiture. When the 
 tenancy is uncertain as to length of time, as when it depends upon a con- 
 tingency such as tenancy for life or at will, the law allows a reasonable time 
 for the removal of fixtures. A tenant who goes upon the premises after his 
 lease is terminated is a trespasser. If a new lease is taken for the same 
 premises, which is to date from the expiration of the old lease, without stipu- 
 lating for the removal of fixtures erected by him during the tenancy which 
 has expired, he cannot remove them at the end of the renewed lease. 3 The 
 act of leaving fixtures on the premises after the expiration of the term leads to 
 the presumption that they are abandoned to the landlord. This presumption 
 may be rebutted by proof of an oral agreement to remove them after the 
 expiration of the term. 
 
 If a tenant is prevented by the owner of the land from removing his 
 fixtures within the time allowed by law for their removal, trover will lie in 
 favor of the tenant. If, however, fixtures are allowed to remain after the 
 expiration of the lease and the time allowed by law, it has been held that the 
 tenant could not maintain an action. The action will also lie in favor of the 
 owner of the land after the unlawful removal of fixtures by the tenant. If 
 not permanently annexed to land, the owner may bring an action for 
 replevin. An action of ejectment has been allowed to enforce the agreement 
 for the common use of fixtures erected at the joint expense of tenants in 
 common. An injunction will be granted to restrain a mortgagor or his 
 grantee from removing fixtures that are permanently annexed to the freehold. 4 
 
 The courts and text-book writers are not agreed on the question as to 
 whether or not railroad rolling-stock is personal property or a fixture. The 
 tendency seems to be to regard them as property fixtures. 5 In Arkansas, 
 Missouri, Nebraska, New Hampshire, New York, Ohio, Texas, and West 
 Virginia, railway rolling-stock is regarded as personalty. In Illinois, Ken- 
 tucky, and Georgia it is covered by a mortgage on the railroad; in Wisconsin 
 it is by statute a fixture. 6 
 
 *: Tyson v. Post (N. Y.), 15 N. E. Rep. * See 8 Amer. & Eng. Ency. Law 65. 
 
 316 5 Williamson v. N. J. So. Rep. Co., 6 
 
 2 8 Amer. & Eng. Ency. Law 57. Cent. L. J. 381 [1878], many cases cited. 
 
 8 8 Amer. & Eng. Ency. Law 63. 6 8 Amer. & Eng. Ency. Law 64. 
 
CHAPTER II. 
 OWNERSHIP OF LANDS. ESTATES. 
 
 11. Estates. For the purposes of this book, an estate in land may be 
 divided into two general classes, viz., (i) exclusive or entire, and (2) special 
 or limited, and without reference to the period of holding. If one has the 
 exclusive enjoyment of all the rights, interests, and profits of an estate he i& 
 the owner in fee simple, and then his ownership is exclusive and entire. If, 
 on the other hand, he has only a special or limited right to the enjoyment of 
 an estate, then it belongs to the second class. This book will have largely to- 
 do with the second general class of estates. Such are rights to certain profits, 
 interests, and rights in land, as those of the soil, minerals, water, oil, gas, or 
 vegetable growths; or of any rights of way upon, over, or through the lands.* 
 
 Real property or real things are owned, held, or possessed by one or 
 several persons or parties in varying degrees, natures, extents, and interests, 
 which are called estates. These are classified as follows : estate of freehold ; 
 estate of inheritance; estate in fee; estate tail; estate for life : estate for the 
 life of another, curtesy, dower, homestead; estate for years, estate at will,, 
 estate from year to year; joint estates, joint tenancy, tenancy in common, 
 coparcenary, estate by entirety, estate in severalty; estate on condition 
 mortgage; estate in remainder; estate in reversion; estate in possession, and 
 estate in expectancy. 1 
 
 For the purposes of this book, it is not required to go into an exhaustive 
 treatment of the subject of estates. A general explanation of those usually 
 met by promoters and constructors of works should suffice. If the estates in 
 lands upon which it is proposed to erect works is anything but the simplest 
 estates, the questions involved, or likely to arise, should be referred to 
 counsel for advice. 
 
 12. Estate of Freehold. An estate of freehold is an estate of inheritance 
 or for life or for some indeterminate period in real property. It is an estate 
 supposed to be that of a free man, and nothing less than a life estate falls 
 within that class. The peculiar feature of such an estate is that it lasts for an 
 uncertain length of time. A term for a certain number of years, therefore, is 
 
 1 6 Amer. & Eng. Ency. Law 875. 
 * See Part II, Sees. 51-360, infra. 
 
 13 
 
I3 OPERA 7'IONS PRELIMINARY TO CONSTRUCTION. 14 
 
 not an estate of freehold. The word is used to designate the quantity of an 
 estate rather than the quality of the ownership. 
 
 13. Estate of Inheritance. Such an estate is an estate in lands that may 
 descend to the heirs of the owner. They include estates in fee and estates in 
 tail. 
 
 14. Estate in Fee Simple. This is the largest estate in land known to 
 the law. It is an estate of inheritance unlimited in duration. The owner of 
 an estate in fee simple is often said to possess the fee of the property. One 
 who owns the fee of a piece of land has full power to dispose of it at any time 
 during his life. If not disposed of, at his death, it goes to his heirs. To-day 
 an estate in fee cannot be created anew, but the rules formerly applied to the 
 creation of such estates are now applied to their transfer. It is absolutely 
 essential to the creation or transfer of an estate in fee by deed that the con- 
 veyance be expressed to the grantee and his heirs. Without the word 
 * ' heirs ' ' the estate conveyed will be merely an estate for the life of the 
 grantee. This rule is not strictly applied in wills, however, and any words 
 which show an intention to mean heirs will pass the fee. 
 
 In America the rule forbidding the transfer of property in fee without 
 the use of the word ' ' heirs ' ' has been frequently ignored in deeds and leases 
 by statute. A conveyance to a corporation does not require the word 
 * * htiirs, ' ' and a conveyance to a trustee does not require any particular form 
 to create the trust. A trustee may take the fee without the word ' ' heirs, ' ' 
 where a less estate would not satisfy the purpose of the trust; and vice versa, 
 the trust estate does not continue in equity any longer than is necessary to 
 accomplish the trust. If a devise of lands be personal and with the payment 
 of money, the devisee takes the fee, whatever the expression used. A court of 
 equity will sometimes dispense with the use of the word "heir." By the 
 rule in Shelly 's case, an estate given to a man for life, with the remainder to 
 his heirs, becomes an estate in fee directly in the ancestor. The rule applies 
 only where the word " heirs " or its equivalent is used, and the intention of 
 the grantor must be ascertained by the ordinary rules of construction. In 
 some states this rule is abolished and the heirs take a contingent remainder. 
 
 An estate is sometimes said to be in fee which is determinable when it is 
 liable to be determined by some act or event. In such case it is deemed a 
 fee because there is a possibility, if not a probability, that it may last forever. 
 
 15. Estates Tail. If an estate of inheritance be limited to a usual or 
 particular class of the issue (offspring) of a grantee, it is a conditional fee and 
 is called an "estate tail." If the issue fail, the estate reverts to the grantor. 
 Such an estate is inalienable, but has all the other characteristics of a fee 
 simple. The proper words of limitation in the creation of an estate tail are 
 that it shall go to the heirs of the body, and the word ' ' heirs ' ' is necessary 
 in a deed, while an equivalent expression is allowed in a will. An estate tail 
 is either general or special. It is general when it is limited to the heirs of 
 
15 OWNERSHIP OF LANDS. ESTATES. 1 6. 
 
 the body, and special when the limitation is to a special class of such heirs, 
 i.e., the heirs by a certain wife or to the male or female heirs of the body. 
 In many states of this country estates tail are abolished, and fines and 
 recoveries by which the restrictions against alienation were defeated have been 
 abolished or have never existed in this country. An estate tail, however, 
 may be barred by deed. All fees in tail have been either abolished or seriously 
 modified in this country, and it is doubtful if they would be recognized in 
 jurisdictions where the statutes are silent upon the subject. 
 
 An estate tail in personal property cannot exist, and an attempt to create 
 such an estate carries an absolute property. 
 
 16. Estates for Life. An estate for life, as the words indicate, is an 
 interest whose extent is limited for the life or lives of certain persons. The 
 term, includes all estates that may last during the life of the tenant, although 
 they may be determined at an early time. Determination is in such case 
 uncertain, as the contingency may never happen. An estate for life in its 
 broadest sense is every estate not of inheritance, without a fixed limit. 
 Estates for life are divided into two classes, those created by the act of law 
 and those created by the act of the parties. In the first class are those of 
 dower, curtesy, and homestead. These will be described in a later section, 
 to which the reader is referred. * In the second class, estates are either for 
 the life of the grantee or for the life of some other person. Estates of the 
 latter kind are known as estates pur autre vie. 
 
 Estates pur autre vie are not common in this country, but they sometimes 
 occur where a tenant for his own life conveys his estate to third persons. He 
 cannot convey more than he has, and his grantee therefore takes the estate 
 during the life of the grantor. If the tenant died during the life of the grantor 
 at common law, the balance of the estate went to the first person who took it, 
 who was termed a general occupant. If the original gift were made to the 
 tenant and his heirs, the heirs took the estate as special occupants. In 
 England, if there be no special occupant, the estate went to the executors as 
 personal property, unless it has been disposed of by will. This rule has been 
 adopted in this country except in a few states, where the life estate descends 
 as real estate. At common law no words of limitation were necessary to 
 create an estate for life, but now, in those states whereby the statute passes 
 without the words of inheritance, the intention to create an estate for life 
 must be clearly expressed. A tenant for life may convey his interest unless 
 restrained, and can grant his whole estate, or he may grant any number of 
 smaller estates, all together not to exceed his own estate. He cannot convey 
 more than his own interest unless he resorts to the old common-law feoff- 
 ment, in which case he can convey a fee, but he works a forfeiture of his own 
 estate by so doing. A tenant for life cannot gain a title by adverse posses- 
 sion, nor can a stranger during the tenancy for life acquire rights by adverse 
 
 * See Sec. 17, infra. 
 
I/. OPERATIONS PRELIMINARY TO CONSTRUCTION. 1 6 
 
 possession, because the remainderman has not the right to possession until the 
 death of the tenant for life, and he then has a statutory period of twenty years 
 (more or less) in which to bring his action to recover possession of the 
 estate. 1 
 
 A life estate may be created in personal property. If the articles be 
 specified, the donee is entitled to the possession on signing an inventory and 
 receipt to the executors acknowledging the right of the remainderman. If 
 there be danger of waste of goods, security may be required of the tenant for 
 life. If the bequest be of money or stocks, the executor may hold the same 
 invested, and will pay the income to the tenant for life. If, however, the 
 things bequeathed be such as are consumed by use, tne bequest is an absolute 
 gift. 
 
 17. Dower, Curtesy, and Homestead. Dower is a certain estate of a wife 
 in the real property of her husband. At common law it was a life estate in 
 one-third of all the legal estates of inheritance which the husband owned at 
 any time during the wife's marriage to him. Dower in the several States of 
 the United States has been changed by statute, and in some States it is an 
 estate only in name. It attaches to all hereditaments, corporeal and incor- 
 poreal, which savor of realty. They attach to franchises, as a market, a mill, 
 a ferry, and to mines already opened, to land covered by water, to turpentine- 
 trees boxed by husband, etc. There is no dower in shares of stock in 
 corporations generally, nor in fruits, grass, and spontaneous productions of 
 the soil growing at time of husband's death. 2 
 
 Curtesy is an estate for life created by law which a husband holds in an 
 estate of inheritance in severalty, in coparcenary, or in common, of which the 
 wife was seized at any time during their marriage, provided the wife has had 
 children born alive who could possibly have inherited the same estate as heir 
 to the wife. Four requisites must exist, viz.: (i) there must have been a 
 legal marriage; (2) the wife must have been seized of the estate during her 
 married life; (3) there must have been issue capable of inheriting the- estate; 
 (4) the wife must be dead. 
 
 Homestead, generally speaking, is the house and land constituting a family 
 residence, but in law it is a family residence, exempt from forced sale by 
 statutory law. The estate to which the homestead is exempt from forced sale 
 varies in different states, as it is a protection created by statute. It is a 
 measure to abridge the right of creditors to take a certain interest reserved to 
 the debtor or his family. It confers no right of property upon the debtor, for 
 such a law would be unconstitutional. 
 
 In making conveyances care must be taken to consider dower, curtesy, and 
 
 homestead interests, and to secure such a release of these life interests as shall 
 
 give to the grantee a clear title or one which shall answer the purposes to 
 
 which the estate is to be employed. This is done by having the wife of 
 
 1 6 Amir. & Eng. Ency. Law 880-882. 2 5 Amer. & Eng. Ency. Law 890-892. 
 
17 OWNERSHIP OF LANDS. ESTATES. 19. 
 
 husband execute the conveyance one with the other, and to effect a release of 
 homestead rights by a deed or by a clause inserted in the deed of conveyance. 
 
 18. An Estate for Years. This is an interest in the land granted for a 
 definite, fixed time on certain agreed conditions. The interest is created by a 
 contract called a lease, and originally the tenant's right was merely a right of 
 action on the contract. This was later changed into an actual estate, in the 
 land. The lease is a chattel, and passes to the personal representatives of the 
 tenant and not to his heirs. The term * ' years ' ' is merely descriptive, and the 
 estate may be for any time, i.e., a month. 
 
 The duration of an estate must be fixed and certain, and the term may 
 begin at any time in the future not beyond the limit laid down by the rule 
 against perpetuities. No especial words are necessary to create an estate for 
 years. ''Demise," "grant," and "let" are the most common, but any 
 form of words showing the intention to transfer the possession for a certain 
 length of time is sufficient. 
 
 An estate for years may be terminated by the eviction of the tenant by the 
 lessor, or by a release or a surrender of the premises by the lessee to the 
 lessor. If the premises are destroyed by fire or otherwise rendered untenant- 
 able, that in itself is no reason for terminating the tenancy. The covenant to 
 pay rent holds unless the rule has been modified by statute, as is the case in 
 many states. A surrender of the premises to the landlord extinguishes the 
 rent, but the abandonment by the tenant does not amount to a surrender 
 unless the landlord assents to it. A surrender io accomplished by operation 
 of law when the tenant takes a new lease the enjoyment of which is incom- 
 patible with the existence of a prior lease, or when the landlord's assent to 
 the abandonment of the tenant is shown by some act inconsistent with the 
 prior tenancy. x 
 
 19. Description of Premises in a Lease. A proper description of leased 
 premises should be inserted in a lease in order to pass all the premises 
 intended to give effect to the instrument. If the lease does not describe the 
 premises with a reasonable certainty, it is void. A lease of ten acres of land 
 in a certain section was held not to designate what ten acres was intended, 
 and it was therefore void for uncertainty. 2 * 
 
 The description of the leased premises need not specify all the particulars 
 of the subject-matter. What is accessory to the part described will be 
 included, as, for example, the general description of a farm will include the 
 buildings appertaining to it. 
 
 In determining what is included under the lease, all parts of it must be 
 considered. 3 
 
 *6 Amer. & Eng. Ency. Law 886. 3 12 Amer. & Eng. Ency. Law 983, and 
 
 2 Patterson v. Hubbard, 30 111. 201; cases cited. 
 Dingman v. Kelley, 7 Ind. 717. 
 
 * See Sees. 541-570, infra. 
 
2O. OPERATIONS PRELIMINARY TO CONSTRUCTION. 1 8 
 
 20. Estate at Will. An estate at will is an estate in land which may be 
 determined by either party at will, and it arises only on the actual possession 
 of the tenant. It may be ended by either party showing an intention to 
 terminate the tenancy or doing any act that is inconsistent with the relation of 
 landlord and tenant. Under an estate at will a tenant has no interest that he 
 can convey. In fact, what interest he has is terminated by a conveyance 
 either by himself or his landlord; it is ended by the death of either party. 
 When a tenancy at will is terminated by the landlord the tenant may have a 
 reasonable time to remove his goods, crops, and stock, but the tenant is not 
 entitled to a formal notice to leave. A demand for possession ends the 
 tenancy. 
 
 On account of the hardships arising to the lessee under such laws, the 
 courts, by process of judicial legislation, have refused to recognize the deter- 
 mination of the estate at will where the rent was reserved and paid without 
 due notice being given by the landlord who desired to end the tenancy. 
 
 A class of estates called " estates from year to year" has been created in 
 this way, and they continue for an uncertain number of fixed periods which 
 may be terminated only by giving due notice. The length of these periods of 
 time is regulated by the manner of reservation and rent. If the rent is annual, 
 the term continues for a year; if quarterly, for a quarter, etc. This law has 
 been generally adopted in America, except in the states of Maine and 
 Massachusetts, where tenancies at will still exist. Leases by the month are 
 also included in the definition from year to year, and in all cases of such 
 estates notice for a reasonable time is required before the termination of the 
 tenancy. The length of time for such notice is frequently fixed by the 
 statute. If the rent is paid monthly, a month's notice is usually required, 
 and if no notice be given, the tenancy continues for another term, and so on. 
 The courts are likely to construe all general or doubtful tenancies as estates 
 from year to year, and under the statutes of frauds parol leases are construed 
 to be estates from year to year by the payment of rent or by other circum- 
 stances which indicate that such was the intention of the parties. 
 
 21. Estate at Sufferance. This is an estate which a tenant holds where 
 he has come lawfully into possession of the land and holds over, after his lease 
 has terminated, without the assent of his landlord either expressed or implied. 
 The original possession must have rested on an agreement of the parties or by 
 permission of the landlord, or it becomes an estate at will or an estate from 
 year to year. The payment of rent may confer a tenancy at will or from 
 year to year. The estate is created by implication of law and by the courts 
 to prevent an adverse possession when the original tenancy is terminated 
 without the knowledge of the owner. The tenant cannot deny his landlord's 
 title nor hold adversely to him. He is not liable for rents. 
 
 22. Estate in Possession Estate in Expectancy. In regard to the time 
 of their enjoyment, estates are either in possession or in expectancy. An 
 
19 OWNERSHIP OF LANDS. ESTATES. 24. 
 
 estate in possession gives a person a right of present enjoyment, while an 
 estate in expectancy is one which cannot be had until a future time. An 
 estate of freehold is said to be in possession although it be subject to an 
 existing prior chattel interest. Estates in expectancy include reversions, 
 remainders, and future interests. 
 
 23. Estate in Reversion. A reversion is the interest of a grantor of land 
 who has conveyed an interest which is less than his whole interest. It is a 
 right to land after a particular estate that has been conveyed is determined. 
 It is a present vested interest in land although the time of possession is post- 
 poned. A grant of a fee simply conveys an absolute interest, and therefore 
 there can be no reversion in the grantor. A reversion may be assigned or 
 devised, or it may descend to the heirs of the grantor. There is no curtesy 
 or dower in a reversion unless the particular estate is less than a freehold, or 
 unless the owner of the reversion comes into possession before his death. 
 
 24. Estate in Remainder. A remainder is a future estate, in lands of any 
 degree, which is preceded and supported by a particular estate in possession. 
 A remainderman must have possession immediately upon the determination 
 of a prior estate and which is created at the same time and by the same con- 
 veyance. The remainder is distinguished from the reversion because the 
 former is always granted to a third person and is not an estate in the grantor. 
 The remainder of a particular estate must pass from the grantor at the same 
 time that the particular estate is granted. The remainder must also vest in the 
 remainderman during the existence of the particular estate or at the moment 
 it comes to an end. There may be a succession of remainders as often as 
 the particular estate ends, and the remainder then vests in possession and 
 becomes in turn a particular estate to support the succeeding remainders. 
 There can be no remainder without a particular estate to support it. 
 
 Remainders are of two kinds, vested and contingent. A vested remainder 
 is one that is ready to take effect on the determination of a particular estate 
 at any time or in any manner. A contingent remainder is one that is 
 vested subject to a condition precedent. That condition may be the 
 happening of a certain event, or it may depend upon the existence of persons 
 who are not ascertained or in being at the time of the grant. The law favors 
 the vesting of estates; and if a limitation may be considered either as an 
 executory devise or a remainder, it will be held to be the latter; and if it can 
 be construed -either as a vested or a contingent remainder, the law will consider 
 it as vested if the words creating it are capable of that construction. A 
 vested remainder will pass to heirs, and it may be alienated or devised. It 
 may be taken on execution ; in which case it passes to the assignee in bank- 
 ruptcy. A contingent remainder is uncertain; that is, the right itself to the 
 remainder is uncertain. There are two classes of . contingent remainders. One 
 class includes all cases where the persons that are to take are, at the time of 
 the gift, uncertain or are not in existence; the other class includes cases where 
 
25. OPERATIONS PRELIMINARY TO CONSTRUCTION. 2O 
 
 the vesting of the remainder is made to depend on the happening of some 
 collateral event. It may be that this event is certain to occur, but it may be 
 uncertain whether it will happen before the termination of a preceding par- 
 ticular estate; or it may be doubtful if the event will ever happen at all. 
 The particular estate required to support a contingent remainder must be a 
 freehold interest. 
 
 25. Joint Estate. A joint estate is one in which the title is vested in two 
 or more persons. The law recognizes four such joint estates, viz., a joint 
 tenancy, a tenancy in common, a coparcenary, and a tenancy by entirety. 
 
 An estate in joint tenancy is an estate held by two or more persons jointly, 
 with an equal right in either to share in the enjoyment of the lands during 
 their lives. When one of the tenants dies his share goes to the survivors until 
 only one is left, who then takes the estate to himself entirely. The land then 
 descends to the heirs of the sole survivor. There may be a joint tenancy in 
 any of the estates in land. The estate must possess four essential elements, 
 viz. : (i) the tenants must have one and the same interest, i.e., all the tenants 
 must hold either in fee or for life, etc. ; (2) estates must have accrued by one 
 and the same conveyance; (3) the tenancy must commence at one and the 
 same time; (4) it must hold by one and the same undivided possession. 1 
 
 A joint tenancy is created only by purchase. The main feature of a joint 
 tenancy is that of survivorship, and the American law is opposed to estates 
 which depend solely upon this principle. Joint tenancies cannot exist 
 between corporations, because there can be no survivorship. 2 
 
 An estate called a tenancy in common exists where two or more persons hold 
 together the possession of land, each holding by a separate title. The tenants 
 may hold by different titles which may have vested at different times, and the 
 periods of holding may be different. There is no right of survivorship; but, 
 each tenant may alienate his share by will or deed, or if not disposed of, it 
 will descend to his heirs or next of kin. Each tenant in common has a right 
 to the entire, but not to the sole, possession of the estate. His estate is 
 separate, and he cannot bind his cotenant by any agreement or conveyance. 
 
 An estate in coparcenary is a joint estate going to the heirs of one who 
 dies without making a will. Each heir holds his share as an entire estate, and 
 the shares may be unequal though all the heirs take the whole estate as one 
 heir. When one heir dies his estate does not go to those who survive him; 
 yet the estate is not to be broken up for the purpose of transmitting to the 
 heirs of one of the deceased tenants, but it remains entire until turned into a 
 tenancy in common by some one of the tenants selling or transferring his 
 interest in the estate. Estates in coparcenary do not exist in America except 
 in Maryland, and the heirs of one who has not made a will or otherwise dis- 
 posed of his property take as tenants in common. 
 
 1 6 Amer. & Eng. Ency. Law 891. 
 
 2 6 Amer. & Eng. Ency. Law 892, and cases cited. 
 
21 OWNERSHIP OF LANDS. ESTATES. 2Q. 
 
 An estate by entirety is created by a conveyance to the husband and wife 
 jointly. Each is possessed of the whole estate, and not of a share. Therefore, 
 on the death of either of the parties the property goes to the survivor, and this 
 right of the survivor to the whole property cannot be destroyed by either 
 party. There are no rights of partition. During the lives of the husband 
 and wife the husband has the control of the estate. He may receive the 
 rents or profits and may mortgage or alienate the property. But such a con- 
 veyance is absolute only when the husband survives the wife. If the wife 
 outlives the husband, she acquires the entire interest in the land, and may 
 bring an action to recover it. If a conveyance be made to the husband and 
 wife and a third person, they become joint tenants, the husband and wife 
 taking only one-half of the land, and the other person named the other half. 
 Tenancies by entirety do not exist in some states, and they have been 
 abolished or modified by statute in other states. 
 
 26. Estate in Severalty. This is an estate held by one person in his own 
 right exclusive of any other person being joined with him in point of interest. 
 It is opposed to joint ownership where tenants hold in undivided shares. 
 
 27. Estates on Condition Mortgages. An estate on condition is one 
 that may be created, enlarged, or defeated upon the happening or failure to 
 happen of a particular event. Such an estate is, strictly speaking, a qualifi- 
 cation of some other estate rather than a distinct estate of itself. Conditions 
 may be either precedent or subsequent. Conditions precedent are such as 
 must happen or be proved before the estate can vest or be enlarged. A 
 condition subsequent is one that defeats an estate already vested. Conditions 
 may be expressed or implied. Further discussion of the subject of estates on 
 condition, including that of mortgages, is beyond the scope of this work, and 
 for fuller information upon this head the reader is referred to special treatises. 
 
 28. Partial Estates. The author adopts this term to indicate an owner- 
 ship that, though it may not rise to the dignity of an estate in the technical 
 sense of the word, is frequently met with in industrial improvements and 
 developments, and should always be kept in mind by those engaged in such 
 work. It applies to the ownership of particular interests in lands, such as the 
 minerals and metals of the soil, the liquids and gases which permeate it, and 
 the natural vegetable products which it yields. These may be the subject of a 
 special grant or conveyance, and may represent the chief interest of value in 
 an estate. The interest may also be merely a right to occupy or use for 
 certain specific purposes, as when rights of way are held for railroad, tele- 
 graph, and pipe-line systems. Where such rights or interests have been 
 granted, they must be kept in mind whenever an estate is the subject of 
 conveyance, as they are a cloud upon the title. 
 
 29. Incorporeal Property. Corporeal property includes things which may 
 always be seen and handled: physical objects, such as land, animals, and 
 materials. Incorporeal property consists of certain rights or privileges con 
 
29. OPERATIONS PRELIMINARY TO CONSTRUCTION. 22 
 
 nected with or issuing out of corporeal things, as rents from houses and 
 lands, or a right of way over land, or a privilege to hunt or fish on the estate 
 of another, etc. The existence of incorporeal property is merely an idea or 
 contemplation, though the effects and results, as the benefit and profits, may 
 be objects of our bodily senses. An incorporeal hereditament is anything the 
 subject of property which is inheritable and not tangible or visible. Incor- 
 poreal property in the United States comprises (a) rents, (b) commons, (c) 
 annuities, (d) easements, (e) franchises. 
 
 Rent is a certain profit issuing periodically (annually) out of lands or 
 corporeal tenements. It may be properly classed with incorporeal heredita- 
 ments when regarded as a fixed, permanent charge upon the land, as it was in 
 early English history. Rent in its ordinary acceptation of the present day is 
 a sum of money paid for the occupation of land, and in this sense is not an 
 incorporeal hereditament though it does come strictly within the definition. 
 
 A common is a profit which a man has in the hands of another, such as 
 pasturage for his stock, the right to catch fish or to cut wood, etc. They 
 were usual in early English history, but are rarely met with in this country, 
 except when acquired by prescription. 
 
 An annuity is a yearly sum stipulated to be paid to a person in fee, for 
 life or for years, and chargeable on the person of the grantor. If payable to 
 a person and his heirs, it is a personal fee, and forfeitable for treasure as an 
 hereditament, and for that reason it belongs to the class of incorporeal 
 hereditaments. 
 
 An easement is a privilege without profit which one landowner has in a 
 neighbor's estate, and existing in respect to the estate, by which the servient 
 owner is obliged to surfer or not do something on his own land, for or to the 
 advantage of the dominant owner. * From its very nature il is an incorporeal 
 hereditament. It is not tangible, is inheritable, and issues out of, is annexed 
 to, and concerns corporeal things. 
 
 A franchise is a special privilege conferred by the government on indi- 
 viduals and which does not belong to citizens by common right. In the 
 United States franchises are derived from the state, such as ferries, railroad 
 charters, etc.f Patent rights and copyrights are also forms of government 
 franchises, and they are incorporeal property. 
 
 *See Sees. 641-859, infra. fSee Sees. 861 et seq. t infra. 
 
CHAPTER III. 
 TITLE TO PROPERTY. HOW ACQUIRED. 
 
 31. Acquisition of Real Property. Real property may be acquired in 
 three ways: (i) by original occupation, (2) by operation of law, and (3) by- 
 purchase. 
 
 One acquires land by original occupation when it is taken by conquest or 
 by virtue of discovery, or when the prior owner cannot be determined, as. 
 where it is reclaimed or added to other lands by the action of a stream or 
 body of water, as by the waters receding or by deposits due to action of the 
 waters. * 
 
 Real property is acquired by operation of law when it passes by descent to- 
 the heir. The estate descends to the heir whether he will have it or not: he 
 cannot refuse it nor reject it. In the United States the laws of descent are 
 statutory, and they differ in the different states, though the same general 
 principles prevail. 
 
 Land acquired by purchase includes all other means of acquiring property, 
 except by original occupation and by descent. It means simply that there is 
 some act of a person or party that takes the property. It embraces two 
 kinds or classes, depending upon the relation of the former owner to the new 
 owner, viz., whether the property is taken without the consent of the former 
 owner or with his assistance. The former class includes title to property 
 acquired by escheat, by forfeiture, by eminent domain, by estoppel, by pre- 
 scription, or by adverse possession under statute of limitations. The latter 
 class includes estates created by livery of seisin, by special custom, by public 
 grant, by office grant, by private grant, or by devise. 
 
 32, Title Acquired without Consent of Former Owner. When land was 
 acquired by escheat it ascended to the heir at law. The heir was not required 
 to take it; it required some effort on his part. It took place when the blood 
 of the owner became extinct and there was no one to whom it could descend. 
 In modern times escheat denotes the acquisition of an estate by a state, 
 either because the tenant is an alien or because he has died intestate, with- 
 out lawful heirs to take his estate by succession. Escheat, on account of 
 
 * See Sees. 376-390, infra. 
 
 23 
 
3 2 - OPERATIONS PRELIMINARY TO CONSTRUCTION. 24 
 
 alienage, is largely done away with in the United States, and the most 
 important cause of escheat at the present time is the want of heirs. 
 
 In early common law forfeiture was the result of the acts of the owner or 
 tenant against the interest of his lord. If a tenant for life sought to make a 
 feoffment of his land, his estate was forfeited. This has been abolished. 
 Forfeiture now ocfcurs only on condition broken, where a lessee denies the title 
 of the lessor by attorning to a stranger, by refusing to pay rent, or by paying 
 rent to a stranger. 
 
 Eminent domain is that sovereign power vested in the people by which 
 they can, for any public purpose, take possession of the property of any indi- 
 vidual upon paying him a just compensation. The power to take private 
 property for public uses belongs to every independent government. It is an 
 incident to sovereignty and requires no constitutional recognition. The 
 power of eminent domain is vested in the several states of the United States, 
 and the power cannot be divested by the legislature. The Federal Govern- 
 ment has also the right to condemn lands for any purposes necessary to the 
 exercise of the powers delegated to the Federal Government by the states.* 
 
 Title inures to a person by estoppel when he is a grantee of a grantor who 
 had not title to the land when he made the conveyance with covenants of 
 warranty, but who has subsequently acquired title to the property. The 
 doctrine also applies to personal property. 
 
 An estate may be acquired by occupation, as when one dies who has bought 
 the estate for the life of another person, and he dies before his grantor. The 
 person who first takes possession of the estate is called a general occupant, 
 and he holds the estate by virtue of his occupation. To be an occupant 
 a person must have actual use and possession of the land. 
 
 Prescription is where an estate or thing is claimed by a person because he, 
 his ancestors, or predecessors have had or used it from time immemorial. 
 Anciently it was required that the use and enjoyment should have been 
 beyond the memory of man, but in the eighteenth century the English courts 
 adopted a fiction which presumed a grant after twenty years' possession and 
 use.f 
 
 Adverse possession is a possession inconsistent with the rights of the true 
 owner and with the intention of excluding the rightful owner. The posses- 
 sion with regard to the owner must be hostile or adverse, actual, visible, 
 notorious, exclusive, continuous, and under a claim or color of title. If a 
 person hold land as the owner thereof adversely for the full period of limita- 
 tions as fixe*d by statute and without interruption, the law gives him a defense 
 against all others who attempt to disturb him in his possession, under the 
 statute of limitations. J 
 
 * See Sees. 864-876, infra. \ See Sees. 671-688, infra. 
 
 \See Sees. 511-540, infra. 
 
2$ TITLE TO PROPERTY. HOW ACQUIRED. 34. 
 
 33. Title Acquired with Assistance of Former Owner, Livery of seisin 
 was a common-law ceremony of conveying land, where the grantor and 
 grantee went upon the land alone and in a more or less ceremonious manner 
 declared their intention to convey and to receive the possession and ownership 
 of the land. It was often accompanied by acts on the part of the grantor 
 such as the delivery of the title-deeds and of a minute part of the estate. 
 Such a livery of seisin was commonly called a feoffment. 
 
 In early English history land descended or passed between persons by 
 certain special customs existing in certain localities and places, but they have 
 for the greater part been destroyed by statute laws or have become extinct. 
 They are scarcely known in this country. 
 
 The term public grant denotes the mode or act of creating a title in any 
 person, corporation, or body politic to lands which had previously belonged 
 to the government of the state or nation making the grant. It includes the 
 conferring of franchises. 
 
 An office grant is a conveyance made by an officer of the law to effect 
 certain purposes where the owner is either unable or unwilling to execute the 
 requisite deeds to pass the title. 
 
 A private grant is a grant by a private person or corporation. This is 
 by far the most common form of conveying titles. The law in regard thereto 
 is a system of principles of the construction of an agreement to transfer real 
 property, and the most popular mode is that of bargain and sale by deed. * 
 
 A disposition of real estate by last will and testament is called in 
 technical language a devise. At common law it was considered not so much 
 in the nature of a testament as of a conveyance by way of an appointment 
 of particular lands to a particular person. The person benefited is called a 
 devisee. A testamentary disposition of personal property is called a legacy or 
 bequest, and the person who takes it is called a legatee. 
 
 Land may also be acquired by dedication and by agreement and acquiescence. 
 These rights are acquired by the consent of the owner; and while cases 
 where persons have acquired title by these methods are not frequent, yet 
 they are recognized methods of conveyancing. They are more fully treated 
 in another part of this work.f 
 
 34. Who May Hold and Own Lands. The capacity of a person to take, 
 hold, or transfer real estate is determined and controlled by the local law of 
 the place where the land or property is situated, and not by the law of the 
 person's domicile. If a person has power to convey or take by the law of the 
 place where the land lies, he will make or take a valid title notwithstanding 
 the law of his domicile incapacitates him from making such a transfer or 
 holding real property. 
 
 In the United States generally, any person can take and hold real 
 property, be the person man, woman, or child, a married woman, an idiot, 
 * See Sees. 41-50, infra. \ See Sees. 491-510, 701-710, infra. 
 
35- OPERATIONS PRELIMINARY TO CONSTRUCTION. 26 
 
 an inebriate, a lunatic, or an alien, the one requirement being that the person 
 shall be living. 
 
 An alien friend, or one who is the subject of a country which is at peace 
 with our country, may take an estate in lands by purchase, devise, or 
 bequest. At common law he could not take lands by descent, but by statute 
 in every state, so far as the author has knowledge, an alien takes land as a 
 citizen. 1 If an alien dies without heirs, his estate goes to the state. 1 In some 
 states it is required that the alien shall take steps to become a citizen of the 
 state. '* Civilized countries give to an alien enemy protection of person and 
 property until ordered out of the country. A person who has an interest in 
 real estate, such as a right to all the rents, profits, and even the possession of 
 the property, held by another as a trustee, is not the owner or holder thereof, 
 but merely a beneficiary. The trustee is the owner and holder of the land, 
 though he may not be entitled to the benefits thereof. 
 
 A person may not hold property by or through agents or representatives. 
 When under guardianship he may not convey what he does hold. 
 
 35. Partnership's Interest in Realty. A copartnership firm, independent 
 of the members thereof, is not a legal person, either natural or artificial, and 
 cannot therefore take or hold real property. A conveyance in the firm name 
 is therefore insufficient to convey the legal title; but it has been held valid as 
 a contract to convey and to vest such an equitable title in the partnership as 
 will defeat an after-acquired title. A conveyance to Jarrett, Moon & Company 
 was held to vest title in the member or m'embers of the firm in trust for the 
 partnership, and that parol evidence was admissible to explain the uncertainty 
 arising from the omission of the Christian names of the members. Convey- 
 ances of real property for firm purposes are usually made to the members of 
 the firm as tenants in common. 
 
 The laws of Louisiana prohibit a commercial partnership from owning 
 immovable property; therefore a firm is incapable of acquiring title to real 
 property. 3 In the United States the right of survivorship in joint tenancy has 
 generally been destroyed by statute, and therefore the legal title to the interest 
 of a partner in the lands held by himself and his associates for the purpose of a 
 partnership descends, upon his death, to his heirs at law, subject to the claims 
 of his partners and the creditors of his firm. The share remaining after the 
 discharge of all demands against the firm and the complete adjustment of its 
 affairs goes to his heirs, subject to the partner's widow's dower, and not to his 
 executor or administrator. 4 
 
 In England and Canada partnership real estate is considered as personal 
 estate for all purposes, and after the settlement of the firm affairs it is not 
 
 1 1 Amer. & Eng. Ency. Law 458. 3 McKee v. Griffin, 23 La. Ann. 417. 
 
 2 See the Laws of New York, Texas, 4 Lindley's Law Partnership (Bl'kstone 
 
 So. Carolina. And see I Amer. & Eng. Ed. 1888)341. 
 Ency. Law 458. 
 
2? TITLE TO PROPERTY. HOW ACQUIRED. 36. 
 
 subject to dower, and is distributable as personal property. In the United 
 States the rule is almost universal to regard it as personal property as far only 
 as may be necessary for the payment of debts and the adjustment of firm 
 accounts, the balance retaining all the incidents of real property. When real 
 estate is purchased by partners with firm funds for partnership use, the legaJ 
 title is held by the members of the firm, usually as tenants-in-common, 
 subject in equity to be used in settling the liabilities of the firm. When the 
 debts of the firm are paid, the incidents and qualities of real estate revive and 
 the real estate becomes subject to dower and homestead rights. The wife of 
 a partner of the firm should therefore join in the conveyance of land as a 
 matter of precaution, if it be the intention to convey a clear title. In some 
 jurisdictions the partnership property is held to be personalty until the part- 
 nership is wound up either by decree, judgment, or agreement, when it is 
 determined to be no longer partnership stock nor required for firm purposes. 1 
 
 Real property purchased with firm money inures to the benefit of the firm, 
 and is part of its assets though the legal title is held by one or more partners 
 of the firm. Such property is subject to an implied trust in favor of the firm, 
 and is liable for debts to creditors. The manner in which property is treated 
 on the books of the firm is usually cogent evidence as to its partnership 
 character. If the value of land held by one partner be credited to him, or 
 one-half be charged to the other partner, or the deed be made to the members 
 of the firm, describing them as partners, or the taxes have been paid by the 
 firm with firm funds, such facts may be held sufficient to raise an inference 
 that the land is firm property. 2 
 
 36, Interest of Corporation in Realty, A corporation is a mere creature 
 of the law (legislature), and it can hold and convey property only when the 
 power has been conferred by statute and for the purposes for which the cor- 
 poration was created. In many states the power is regulated by general 
 statutes, and in others by the special charters granted. The power of a 
 domestic corporation to acquire, hold, and dispose of real estate is implied 
 from the purposes for which the corporation was created, unless such power 
 is restricted by its charter. A corporation may be a tenant-in-common with 
 a natural person, but it has been held that it cannot take an estate in joint 
 tenancy if survivorship be an incident thereto. The right of religious and 
 charitable corporations or associations to hold real estate in any territory of 
 the United States is limited by statute to $5O,ooo. 3 In Pennsylvania also the 
 power of corporations to hold real estate is limited, in that they prohibit the 
 dedication of property to superstitious uses and to corporations without 
 statutory licenses. 4 A general right to own and dispose of land includes a 
 power to mortgage the property. In some states the power to mortgage is 
 restricted; it may be by charter, by general statute, or by a duty to the 
 
 1 i7 Amer. & Eng. Ency, Law 950. 3 United States Rev. Stat. 1880. 
 
 2 17 Amer. & Eng. Ency. Law 945-948. 4 4 Amer. & Eng. Ency. Law 2^3. 
 
36. OPERATIONS PRELIMINARY TO CONSTRUCTION. 28 
 
 public, the fulfillment of which it could not perform if it made the mortgage. 
 In New York State manufacturing corporations must have the written consent 
 of at least two-thirds of the corporate stock, which consent must be recorded 
 in the county where the land is situated. 
 
 The power of corporations to take property by devise is regulated by the 
 statutes of the several states, and no general rule can be given. If a corpora- 
 tion be incapable of taking real estate by devise under the laws of its domicile, 
 it cannot take such property in another state. The want of power of a cor- 
 poration to take by devise must be distinguished from a lack of capacity of a 
 testator to devise to a corporation. If a corporation be competent under the 
 laws of the state which created it to take by devise, it may take a devise from 
 a citizen of another state though the state incorporating the company has a 
 statute prohibiting all devises of lands to corporations. In some states there 
 are statutes which deny or limit the power of foreign corporations to acquire 
 real estate, and under such statutes a foreign corporation cannot take title. 
 A conveyance to a foreign corporation, however, is usually held not void, but 
 voidable, only when attacked by the state itself. If there be no local law 
 established by statute or by decisions which forbids a foreign corporation from 
 acquiring or holding real estate in the state, and the company is not forbidden 
 by the law of its existence, it may exercise in any state the general powers 
 conferred by its own charter. 
 
CHAPTER IV. 
 CONVEYANCES OF LAND. ESSENTIAL ELEMENTS OF DEEDS. 
 
 41. Necessary Elements of a Deed, A deed to convey an interest in 
 land must have the following elements: (i) there must be two parties, a 
 grantor and a grantee; (2) there must be a consideration; (3) there must be 
 a subject-matter capable of being conveyed; (4) the deed must be executed in 
 writing, signed, sealed, attested, acknowledged, and delivered. 
 
 42. Proper Parties The Grantor. The grantbr must own the same 
 interest as is conveyed by the deed, and have the capacity to convey it. All 
 persons owning the subject-matter of the conveyance have the power to 
 convey such interest, except those under a legal disability, such as infants, 
 married women, and those of unsound mind. 
 
 The deed of an infant is held to be voidable at the election of the infant, 
 and not absolutely void. l The infant may, at his option, either repudiate the 
 deed or ratify it after attaining legal age. The deed of a person of unsound 
 mind is held to be void if the state of his mind is such that he cannot com- 
 prehend the character of the transaction. Any impairment of the mental 
 faculties short of complete disability to understand the character and nature 
 of the transaction, is held to make the deed voidable and not absolutely 
 void. 2 The deed of an habitual drunkard is not invalid unless his mind is so 
 impaired by the use of liquor that he cannot understand the nature of the 
 act. 3 
 
 At early common law the deed of a married woman was absolutely invalid, 
 as a married woman had no power to grant by deed. This, however, has 
 been generally changed by statutes in nearly all the states, so that now a 
 married woman has full power to make a valid deed. In some states the 
 deeds of married women must be executed in a peculiar manner, and unless 
 the statute is strictly complied with the deed is void. 
 
 The Granlee. All persons, including corporations and those under a 
 legal disability, may take as grantee by deed. In most of the states there 
 
 1 Irvine v. Irvine, 9 Wall. (U. S.)626; Burgess v. Pollock, 53 Iowa 273. 
 Hovey v. Hobson, 53 Me. 451; Howe v. 3 Gardner v. Gardner, 22 Wend. (N. Y.) 
 Howe, 99 Mass. 98. 526; Eaton v. Perry, 29 Mo. 96; Donel- 
 
 2 Dennett v. Dennett, 44 N. H. 538; son v. Posey, 13 Ala. 752. 
 Doe v. Prettyman, I Houst. (Del.) 339; 
 
 29 
 
43- OPERATIONS PRELIMINARY TO CONSTRUCTION. 30 
 
 are statutes limiting the amount of land a corporation may hold. At early 
 common law aliens could not take by deed, but this has been changed in all 
 but a few states, so that now an alien may be the grantee of a deed. 
 
 Parties Named in the Deed. The parties named in the deed must be so 
 described as to be easily identified. The usual method is to give the names 
 of the grantor and grantee in full.* 
 
 In some states a conveyance in fee simple must be made to the grantee, 
 "his heirs and assigns forever." If these words are not used the deed is 
 invalid. In other states this has been changed by statute. 
 
 In a deed to a corporation the word " successors " must be used in con- 
 nection with the name of the corporation. 
 
 To make a clear title it is important that the wife or husband of the 
 grantor execute the conveyance as grantor to avoid dower and curtesy 
 interests, t 
 
 43. Subject-matter, or Thing to be Conveyed, The grantor must have 
 some interest in the land that may be conveyed. The conveyance of any 
 freehold interest in land requires an instrument under seal, that is, a deed. 
 All incorporeal interests, such as easements, rights of way, rights of common, 
 water rights, mineral deposits, etc. , also must be conveyed by deed. 
 
 The interest conveyed must be so sufficiently described as to be easily 
 identified. 
 
 44. The Consideration, The consideration need not actually pass to the 
 grantor if the receipt of the consideration is acknowledged in the deed, but it 
 must either be acknowledged in the deed, or it must be proved by other 
 evidence, that it actually passed to the grantor. Parol evidence is inadmissi- 
 ble to contradict the acknowledgment of the consideration to invalidate the 
 deed between the grantor and grantee, but the acknowledgment in the deed 
 is only prima facie evidence of the amount and kind of the consideration. In 
 an action to recover the consideration, parol evidence is admissible to show 
 that a different amount and kind of consideration had been agreed upon. 1 
 
 45. Execution. A deed may be executed by the grantor himself or by an 
 agent duly authorized for that purpose. The agent, however, must have a 
 power of attorney under seal. 2 In some of the states it is a settled rule 
 that a woman cannot give a valid power of attorney authorizing the convey- 
 ance of an interest in land. 3 In other states, however, a married woman may 
 give a valid power of attorney. 4 It is generally held that the power of 
 
 1 Pierce v. Brew, 43 Vt. 295; Miller v. day v. Daily, 19 Wall. 609; Sumner v. 
 Goodwin, 8 Gray (Mass.) 542; Murdock Conant, 10 Vt. 9; Earle v. Earle, i Spen. 
 v. Gilchrist, 52 N. Y. 246; Irvine v. Me- 347. 
 
 Keen, 23 Cal. 475. 4 R^arty v. Mitchell, 7 Gray 243; Grid- 
 
 2 Han ford v. McNair, 9 Wend. (N. Y.) ley v. Wynant, 23 How. 503; Weisbrod 
 54; Stetson v. Patton, 2 Me. 358. z/. Chicago, etc., R. Co., 18 Wis. 41. 
 
 3 Allen v. Hooper, 50 Me. 373; Holla- 
 
 * See Sees. 31-36, supra. \ See Sec. 17, supra. 
 
3 1 CONVEYANCES OF LAND. 45- 
 
 attorney of an unmarried woman to grant by deed is revoked by a subsequent 
 marriage. l 
 
 A deed must be in writing to satisfy the statute of frauds, which requires 
 all grants of all interest in -land to be in writing. It must also be in writing 
 in order that it may be proved, as parol proof is not admissible to establish a 
 grant of an interest in land. Nearly all the states have registration laws for 
 the recording of deeds. In order that a deed may be recorded it is necessary 
 that the deed be in writing. 
 
 The generally accepted rule is that a deed must be written on either paper 
 or parchment, as these materials are considered more durable than others, 
 and alterations and erasures cannot be so easily made by those intending to 
 commit a fraud. 
 
 Signing. In most if not all of the states the signature of the grantor is 
 necessary to the validity of the deed. The statute of frauds requires every 
 instrument of conveyance coming within its operation to be signed. If the 
 statute requires the instrument to be subscribed, it must be signed at the 
 end. Otherwise the signature may appear anywhere in the instrument. 
 
 The effect of a deed cannot be destroyed by the grantor's erasure of his 
 signature after the grantee's death. The deed takes effect immediately upon 
 delivery to the grantee. 2 
 
 Sealing. In all but a few of the states a seal is necessary to the validity 
 of a deed. In Louisiana, Kentucky, Iowa, Alabama, Kansas, and Texas 
 seals have been abolished by statute. 
 
 At common law the seal had to be an impression on wax or some other 
 tenacious substance. In some states this is still required, but generally a 
 wafer seal is used. In a few states placing the letters " L.S. " in a scroll is 
 sufficient. 
 
 The seal of a corporation should be attached by the officer having charge 
 of the seal. 
 
 Attestation. Generally in the United States a deed must be executed in 
 the presence of two or more witnesses. 3 The grantor may subsequently 
 acknowledge the execution of the deed before two or more witnesses, when 
 they may unite their names in attestation of the execution. 
 
 Acknowledgment. As a general rule it is not necessary to the validity of a 
 deed that it have a certificate of acknowledgment attached to it. 4 But in 
 most of the states, in order that the deed may be recorded, it is necessary that 
 the deed be acknowledged before an officer duly authorized for that purpose, 
 
 1 3Washb. Real Prop. 259; Judson v. Pease, 5 Ohio 119; Chandler -v. Kent 
 
 Sierra, 22 Tex. 365. 8 Minn. 525; Day v. Adams, 42 Vt. 
 
 ' 2 Turner v. Warren (Pa. Sup.), 28 Atl. 520. 
 Rep. 781. 4 Gibbs v. Senft, 12 Cush. 393; Blane 
 
 8 Clark v. Graham, 6 Wheat. 577; Mer- v- Stewart, 2 Iowa 383; Stevens y. 
 
 win v. Camp, 3 Conn. 35; Patterson v. Hampton, 46 Mo. 408. 
 
46. OPERATIONS PRELIMINARY TO CONSTRUCTION. $2 
 
 and the deed must contain a certificate to that effect. 1 The officer who takes 
 the acknowledgment must not be interested in^the conveyance. 
 
 It has been held that the grantor must be known personally to the officer 
 taking the acknowledgment of the deed, and that a simple introduction of the 
 grantor to such officer taking the acknowledgment is not sufficient. 
 
 In some states it is required by statute that a married woman acknowledg- 
 ing a deed must be examined by the officer taking the acknowledgment, apart 
 from her husband, as to whether she knows the contents of the deed, whether 
 it is "her voluntary act and without any duress. The statute must be 
 followed exactly. 
 
 Delivery and Acceptance. In order that a deed maybe valid it must be 
 delivered and accepted. The delivery must be unconditional, except in the 
 case of an escrow. The grantor cannot retain any control whatever over the 
 deed. When the delivery is made, the title passes from the grantor to the 
 grantee. The deed must be complete before delivery, and the delivery must 
 be made during the lifetime of the grantor. The deed must be accepted by 
 the grantee in order that the title may pass to the grantee. 
 
 An escrow is a deed delivered to a third person to be delivered to the 
 grantee on the happening of some event or condition. The grantor must 
 give up all control over the deed, or, in other words, there must be a complete 
 delivery to the third person. Unless the event takes place or the condition 
 happens, the deed is void. The title does not pass to the grantee until the 
 second delivery by the third person to the grantee on the happening of the 
 condition. 
 
 46. Operative Words of Conveyance. It is necessary that an effective 
 deed of conveyance contain what are termed operative words of conveyance, 
 i.e., words which indicate the intention of the grantor to transfer his estate 
 or interest in the land in whole or in part. The deed generally used in the 
 United States contains the words " give, grant, bargain, arid sell." It is not 
 absolutely necessary that these technical operative words be used, but it is 
 advisable to do so in order to remove any doubt as to the validity of the 
 conveyance. Any words will be sufficient to convey the title in fee if they 
 clearly manifest the intention of the grantor to convey the estate. 2 In like 
 manner it would not be fatal to the deed if the operative words are in the past 
 instead of the present tense; for example, "has given and granted" for 
 " do give and grant "; but it is the prevailing custom in most of the United 
 States to use both tenses, viz. , ' ' have given and granted, and do hereby give 
 and grant." The past tense, however, is considered merely as surplusage. 3 
 
 J 3Washb. Real Prop. 314; Clark v. v. Livingston, 8 Barb. 463; Ivory zv 
 
 Troy, 20 Cal. 219; White v. Denman, i Burns, 56 Pa. St. 300; McKinney v 
 
 Ohio St. no; Chamberlin v. Spargus, 22 Settles, 31 Mo. 541; Folk v. Varn, 9 Rich, 
 
 Hun 437. Eq. 303. 
 
 2 Harden v. Chase, 32 Me. 229; Lynch 5 Pierson v. Armstrong, i Iowa 292. 
 
33 
 
 CONVEYANCES OF LAND. 
 
 4 8. 
 
 47. Alterations. An alteration or erasure made after the delivery of the 
 deed makes the deed invalid. Some authorities hold that it is a presump- 
 tion of law that the alteration was made after delivery. 1 Other authorities 
 hold that there is no presumption of law in respect to this matter, and that 
 the burden of proof to show when the alteration was made is on the person 
 relying on the deed. 2 
 
 The safer plan is to note the alteration or erasure on the deed to show 
 that it was made before delivery, and have the notary initial the correction in 
 the margin at the place where the correction was made. 
 
 48. Fraud and Duress. The deed must be the voluntary act of the 
 grantor. If, therefore, he has been induced by fraud or compelled by threats 
 to make the deed, he may avoid it by restoring the consideration within a 
 reasonable time. The courts differ as to the amount of duress necessary to 
 enable the grantor to avoid the deed. 3 The rule laid down by the Supreme 
 Court of the United States is as follows: ',' Unlawful duress is a goad defense 
 if it includes such a degree of restraint or danger, either actually inflicted or 
 threatened and impending, as is sufficient in severity or apprehension to over- 
 come the mind and will of a person of ordinary firmness. " 4 
 
 Delay in avoiding the deed may affect the rights of the grantor because of 
 the possible intervening rights of third parties. 5 
 
 1 United States v. Linn, I How. (U. S.) 
 104; Hill v. Barnes, II N. H. 395; Gal- 
 land v. Jackman, 26 Cal. 85; Paine v. 
 Edsell, 19 Pa. St. 180; White z/. Hass, 32 
 Ala. 432. 
 
 2 Ely v. Ely, 6 Gray (Mass.) 439; Bea- 
 man v. Russell, 20 Vt. 205; Jackson v. 
 Osborn, 2 Wend. (N. Y.) 555; Comstock 
 z/. Smith, 26 Mich. 306. 
 
 3 Evans v. Gale, 18 N. H. 401; Baker 
 v. Morton, 12 Wall. (U. S.) 150; Watkins 
 v. Baird, 6 Mass. 506; Miller v. Miller, 
 68 Pa. St. 486. 
 
 4 United States v. Huckabee, 16 Wall. 
 (U.S.) 423- 
 
 5 Doolittle v. McCullogh, 7 Ohio St. 
 299; Murphy v. Paynter, I Dill. 333* 
 Lyon v t Waldo, 36 Mich. 345. 
 
PART II. 
 
 RIGHTS AND PRIVILEGES INCIDENT TO 
 OWNERSPIIP OF REAL PROPERTY. PRO- 
 TECTION OF, AND INTERFERENCE WITH, 
 RIGHTS IN FLUIDS. THE SUPPLY AND 
 USE OF WATER, OIL, GAS, AND ELECTRIC- 
 ITY. RIGHTS IN NAVIGABLE WATERS. 
 INTERFERENCE WITH PROPERTY RIGHTS 
 BY SURVEYORS. TRESPASS. 
 
 CHAPTER V. 
 
 WATER. RIPARIAN OWNERS. APPROPRIATION OF WATER. 
 
 51. Riparian Owners. A riparian owner is one who owns land which 
 touches a stream of flowing water. His rights are incident to the ownership 
 of the banks of the watercourse, and it is necessary to the existence of a 
 riparian right that the land should be in contact with the flow of the stream. 1 
 A canal company owning a strip of land along the banks of a stream and 
 which touches the flow of the stream is a riparian owner. 2 Lateral contact 
 has been held as good as vertical contact so far as concerns the rights of the 
 riparian owner. 3 
 
 An owner of land in the neighborhood of a stream but not upon the line 
 of it has not the rights of a riparian owner in that stream. 4 He cannot 
 maintain an action for damages for the obstruction of a viaduct unless he 
 has sustained some special damage distinct from the public at large. 5 
 
 1 Jones v. Johnston, 18 How. (U. S.) Fed. Rep. 974; Lyon -v. Fishmongers Co., 
 150; Johnston v. Jones, i Black (U. S.) L. R. i App. Cas. 682. 
 
 209; Lake Sup. Ld. Co. v. Emerson, 38 4 Schlag z/. Jones, 131 Pa. St. 62; Union 
 
 Minn. 406. Mill. & Min. Co. v. Dangberg (C. C.), 81 
 
 2 Minneapolis W. Co. v. Amer. S. Co , Fed. Rep. 73; Gould v. Stafford, 77 Cal. 66. 
 53 Fed. Rep. 970. 5 Potter v. Ind., etc., Ry. Co. (Mich.), 
 
 3 Ind. Water Co. v. Amer. S. Co., 53 54 N. W. Rep. 956. 
 
 34 
 
5$ WATER. RIPARIAN OWNERS. 53- 
 
 52. Rights and Liabilities of Persons Holding under Riparian Owners. 
 
 A riparian owner need not own the fee of the land. It is sufficient if he 
 be entitled to the exclusive possession of the land abutting on the stream. 1 
 It is not required that a lower riparian owner be in possession of his lands 
 in order to maintain trespass against an upper owner to recover damages for 
 diverting the water of the stream. ' z 
 
 It seems that a riparian owner is not responsible for the diversion of 
 waters by his tenants. 3 A contractor is not liable for acts undertaken for 
 a riparian landowner or a city where such acts obstructed and diverted <.< 
 stream. 4 A licensee* of plaintiff may not be held in damages for wrongfully 
 erecting and maintaining dams across a river, as it violates the defendant's 
 rights under his license. 5 
 
 A grantee railroad company is not liable for injuries due to structures 
 (jetties) erected by its grantor, not upon its right of way, to protect its bridge, 
 the grantee company not having assumed the control or tried to maintain the 
 said structures. 6 A grantee of an abutting owner on a street is not liable for 
 injuries due to the cover of a water-box having become displaced, when the 
 box had been erected in the street by his grantor and he had, on taking 
 possession of the lot, discontinued the use of the box and constructed another 
 in another place. The grantee of a creator of a common nuisance is liable 
 in damages for special injury only after request to abate the nuisance. 7 
 
 53. Riparian Rights Belong Only to Persons Entitled to Possession. A 
 person who is merely in possession of unsurveyed government land has no 
 riparian rights to the use of the stream flowing through it. 8 A mere squatter 
 is limited to his actual possession, and has no riparian rights. 9 
 
 As proprietor of the land through which a stream flows, the government 
 has the same property and right in the stream that any other proprietor would 
 have. 10 The grant of a right of way along the banks of a stream will not 
 make the grantee a riparian owner. 11 The laying out of a street in front of 
 uplands does not deprive the owner of his riparian rights; 12 but the dedication 
 of a strip of land along the banks of a watercourse for a street or public high- 
 way has been held to confer upon the public equal rights with the owner of 
 
 !Hanford v. St. Paul, etc., R. Co., 43 6 Fordyce v. Russell (Ark.), 27 S. W. 
 
 Minn. 104. A tenant may recover for Rep. 82. 
 
 injury to his crops by overflow of lands. 7 Staples v. Dickson, 88 Me. 362. 
 
 Indiana, etc., R. Co. v. Patchette, 59 111. 8 Lake v. Tolls, 8 Nev. 285; Covington 
 
 App. 251. v. Becker, 5 Nev. 281. 
 
 2 Hogg v. Connellsville W. Co. (Pa.), 9 Watkins v. Holman, 16 Pet. (U. S.) 25. 
 
 31 Atl. Rep. 1010. 10 Union M. & M. Co. v. Ferris, 2 Saw. 
 
 , 3 Gould v. Stafford (Cal.), 35 Pac. Rep. 176. 
 
 429. 11 Indianapolis W. Co. v. Amer. S. Co., 
 
 4 De Baker v. So. Cal. Ry. Co. (Cal.), 53 Fed. Rep. 974; Hagan v. Campbell 
 39 Pac. Rep. 610. (Ala.), 8 Port. 9; Potter v. Ind., etc., R. 
 
 5 Peay v. Salt Lake City (Utah), 40 Pac. Co., 95 Mich. 389. 
 
 Rep. 206. 12 Prior v. Comstock, 17 R. I. i. 
 
 * See Sees. 661-671, infra. 
 
54- OPERATIONS PRELIMINARY TO CONSTRUCTION. 36 
 
 the soil. 1 A street bordering on a stream was held to be intended for use of 
 the public to get to the river, in contradiction to the exclusive use of one 
 claiming riparian rights as the owner of the soil. 2 
 
 54. Rights of the Public and of Riparian Owners to Waters. The state 
 has no power to arbitrarily destroy the rights of a riparian owner without his 
 consent, and without compensation and due process of law, for the sole 
 purpose of benefiting some other riparian owner, or for any other merely 
 private purpose; and a law relinquishing to a person all its right, title, and 
 interest in and to all lands lying within the limits of a lake, and authorizing 
 the drainage of such lake without the consent of riparian owners, is void, 3 
 A mill-owner's right to the waters of a stream cannot be defeated on the 
 ground that the head waters should be diverted for the consequent improve- 
 ment of public highways and marsh lands. 4 
 
 Under the colonial ordinance of 1641-47, all great ponds (ponds contain- 
 ing more than 10 acres) in Maine are owned by the state; and the legislature 
 may permit towns and cities to take water therefrom for the domestic use of 
 their inhabitants without paying damages to those who have been using the 
 water for mill power. 5 The state of Maine has the constitutional power to 
 grant superior or even exclusive privileges in the use of its public rivers 
 either to persons or corporations. 6 
 
 The fact that a water company was chartered for the purpose of supplying 
 a certain city and its inhabitants with water and has entered into a contract 
 to fulfill that purpose does not give the water company any additional rights 
 to use or appropriate the waters of a stream. 7 The fact that a dam is 
 authorized by the legislature does not relieve a city from liability for the 
 permanent submersion of land by the construction of the dam for the pur- 
 poses of a water-supply. 8 The acts of incorporation of water companies, or 
 the general laws governing them, usually give powers of condemnation, by 
 which they may take water rights and privileges by making just compensa- 
 tion. 9 
 
 A city that has diverted the waters of a stream for public use without 
 process of law, and not long enough to acquire a prescriptive right, may be 
 restrained and compelled to pay damages by a recent purchaser of land, further 
 down the stream, though he bought with knowledge of the diversion. 10 
 
 1 28 Amer. & Eng. Ency. Law 948, and 6 Mullen v. Penobscot Log-Driving Co. 
 cases cited. (Me.), 38 Atl. Rep. 557 [1897]. 
 
 2 Barney v. Keokuk, 94 U. S. 324. But 7 Tampa W. Co. v. Cline (Fla.), 20 So. 
 see Potomac Steamboat Co. v. Upper P. Rep. 780; Saunders v. Bluefield W. & I. 
 S. Co., 109 U. S. 672, where the fee of the Co. (C. C.), 58 Fed. Rep. 133. 
 
 street was in the United States. 8 Baltimore v. Merryman, 39 Atl. Rep. 
 
 3 Priewe v. Wis. St. L. & Imp. Co. 98; Carl v. W. Aberdeen Co. (Wash.), 
 
 (Wis.), 67 N. W. Rep. 918. 43 Pac. Rep. 890. 
 
 4 Stock v. Jefferson Tp. (Mich.), 72 N. 9 Laws of New York 1873, chap. 737; 
 W. Rep. 132 [1897]. 1876, chap. 415. 
 
 5 City of Auburn v. Union Water-Power 10 Duesler v. Johnstown, 48 N. Y. Supp. 
 Co. (Me.), 38 Atl. Rep. 561 [1897]. 683. 
 
37 WATER. RIPARIAN OWNERS. 56. 
 
 A water company cannot resist a riparian owner's application for an 
 injunction compelling it to restore the natural flow of a stream, by an answer 
 that he has enough water left for all his uses and purposes, or would have 
 enough if he properly controlled or secured it. l 
 
 55. Riparian Rights Incident to Ownership of Land. The rights of 
 riparian owners in streams are rights which are incident and belong to the 
 land through which the water flows. They do not exist by reason of a pre- . 
 sumed grant or long acquiescence. They exist from the moment that the 
 land is acquired, whether they have been exercised before or not. They 
 cannot therefore be lost by long user, though they may be lost by the adverse 
 enjoyment by another, which destroys the right. 2 The right to the natural 
 flow of water of a stream is a right guaranteed by law. A riparian owner 
 cannot be divested of this right except by voluntary relinquishment on his 
 part, or by condemnation for public purposes. 3 
 
 A purchaser of riparian land takes his full rights in the waters of a stream 
 without special words conveying the same. If the grantor or vendor will 
 reserve any rights to himself, he must do so in express words in the convey- 
 ance. 4 The right to have a stream-flow unobstructed is a corporeal right, it 
 is a natural right, an incident of the property in land. 5 Each owner may 
 insist that a stream shall flow to his land in the usual quantity, at its natural 
 place and height, and that it shall flow off his land to his neighbor below in 
 its accustomed place and at its usual level. 4 A lease of the surplus water of 
 a canal, not required for the purposes of navigation, does not convey any 
 right to the corpus of the water, and when the canal is abandoned the water 
 may be altogether withdrawn. 6 
 
 56. Rights in Streams are Common and Not Divisible, The rights of a 
 riparian owner to the use of the waters of a stream are not exclusive nor 
 absolute, but are subject to the rights of other riparian owners along the 
 stream, except when expressly qualified by grant or prescription, or by the 
 right of the prior appropriation, such as is recognized in some of the western 
 states, where irrigation is practiced. There is a popular sentiment among 
 the people that water is public .property and free as the air we breathe, but 
 this contention cannot be supported unless the stream be a navigable stream, 
 in which the public have special rights. The property of water in running 
 streams is indivisible, and all the proprietors of the land bordering on the 
 stream are entitled to an equality of rights therein. The stream must be 
 
 1 Gilzinger v. Saugerties W. Co. (Sup.), Ency. Law 949. 
 
 21 N. Y. Supp. T2I. Andsee Low v. Schaf- 3 Gilzinger v. Saugerties W. Co. (Sup.), 
 
 fer (Oreg.), 33 Pac. Rep. 678. ButseeP'me 21 N. Y. Supp. 121; Union Mill. & Min. 
 
 v. New York (C. C.), 76 Fed. Rep. 418, Co. v. Dangberg (C. C. D. Nev.), 81 Fed. 
 
 and New York R. Co. v. Rothery (N. Y.), Rep. 73. 
 
 14 N. E. Rep. 269 [1888]. 4 Gould on Waters, 204, 208. 
 
 2 Clinton G. Lt. Co. v. Fuller (Mass.), 5 Scrivner v. Smith, 100 N. Y. 471. 
 
 48 N. E. Rep. 1024; Duesler v. Johns- 6 Hoagland v. N. Y., Chicago & St. L. 
 town, 48 N. Y. Supp. 683 [1898] ; Eddy v. Ry. Co. (Ind.), 13 N. E. Rep. 572 [1887]. 
 Chace, 140 Mass. 471; 28 Amer. & Eng. 
 
57' OPERATIONS PRELIMINARY TO CONSTRUCTION. 38 
 
 used as an entire stream in its natural channel. There can be no dividing it 
 into parts without mutual consent. 1 
 
 57. Appropriation of Waters by Riparian Owners Extent of Use. 
 There is a general rule that no riparian owner has a right to use the water to 
 the prejudice of another. He may make use of his right to a reasonable 
 extent. He may use what is reasonable for domestic and agricultural pur- 
 poses, and the reasonableness of the use is a question of fact for a jury to be 
 determined by the particular circumstances of each case, having regard for 
 the diminution in quantity, the retardation or acceleration of the current, 
 and any extraordinary uses, 2 considering the width and depth of the stream, 
 the fall, the volume of water, and the state of improvements in manufactures 
 and useful arts. 3 
 
 It is reasonable to make use of the force of a stream, and to make limited and 
 temporary appropriation of its waters; but the rights of a riparian owner are 
 such as his location and opportunity afford him, and are prior to other owners 
 below him and subsequent to those above him on the stream. 4 So much as 
 will not materially and sensibly diminish the quantity may be diverted for 
 manufacturing purposes, 5 , and more water may be taken at times of high 
 water and flood. 6 At such times a water company which is a riparian owner 
 may store and pump the surplus or flood waters, provided such diversion and 
 appropriation cause no actual injury to riparian owners nor impair the rights 
 of another water company. 7 
 
 ' ' Natural flow ' ' means the quantity of water ordinarily flowing in the 
 stream at times when its volume is not increased by unusual freshets or rains. 8 
 
 58. Regard Must be Paid to Use of Waters by Other Riparian Owners. 
 The use must be reasonable, conformable to the usages and wants of the 
 community, with proper regard for the progress of improvement in hydraulic 
 works, not inconsistent with a like reasonable use by the other proprietors of 
 land on the same stream, both above and below. 9 One riparian mill-owner 
 may not alternately use his water-power in connection with steam-power to 
 the annoyance and injury of a lower mill-owner, as by so operating it that 
 when he was using the steam-power he would allow the water to accumulate 
 in his dam during working days, so that the flow was cut off from plaintiff's 
 mill, and then during the night-time and on Sundays, when plaintiffs could 
 
 1 28 Amer. & Eng. Ency. Law 950; (Com. PI.), 12 Montg. Co. Law Repr. 
 
 Vandenberg v. Van Bergen, 13 Johns. 46. 
 
 (N. Y.) 212. 6 Heilbron . 76 Ld. & Water Co. (Cal.), 
 
 3 9 Amer. & Eng. Ency. Law 854; 28 30 Pac. Rep. 802; Lehigh C. & N. Co. v. 
 
 Amer. & Eng. Ency. Law 951, cases cited; Scranton G. &. W. Co. (Com. PI.), 6 Pa. 
 
 Gillis v. Chase (N. H.), 31 Atl. Rep. 18; Dist. Rep. 291. 
 
 Quigley v. Birdseye (Mont.), 28 Pac, 7 Lehigh C. & N. Co. v. Scranton G. & 
 
 Rep. 741. W. Co. (Com. PL), 6 Pa. Dist. Rep. 291. 
 
 3 Gould on Waters, 204, 208. 8 Nemasket Mills v. Taunton (Mass.), 
 
 *Merrifieldz'. Worcester, no Mass. 219 44 N. E. Rep. 609. 
 
 5 Phila. & R. R. Co. v. Pottsville W. 9 Cary v. Daniels (Mass.), 8 Met. 466; 
 
 Co. (Com. PI.), 18 Pa. Co. Ct. Rep. 501; Lewis v. Springfield W. Co. (Pa. Sup.), 
 
 Myers v. Phila. J. & C. Pass. Ry. Co. 35 Atl. Rep. 186. 
 
39 WATER. RIPARIAN OWNERS. 60. 
 
 not use the water, allowing it to run off. An injunction may be obtained 
 perpetually restraining defendant from retaining the water except for the 
 proper use of his mill, or from discharging it except for the purpose of 
 running his mill, or so as to relieve his dam, and from holding back the 
 water in order to accommodate his steam-power. 1 
 
 It is not a question of what is a reasonable use for business or other pur- 
 poses, but what is reasonable with respect to the rights of others. Every 
 condition which affects those rights must be considered, such as the character 
 and size of the stream, the quality of the water, and the uses to which it can 
 be applied. 2 The appropriation of the water of an unnavigable stream by a 
 riparian owner in such quantities as to unreasonably diminish the supply of 
 other riparian owners is a private nuisance, for which an injunction will lie. 3 
 
 When the needs of a riparian proprietor are satisfied, he cannot take the 
 excess flow of the stream. 4 Therefore, when a decree in partition adjudged 
 that certain parties should have the use of the waters of a stream the source 
 of which is on the land of another party, the fact that, after the decree was 
 made, the volume of water at the source of the stream increased does not 
 entitle the owner of the land to appropriate the increase, there being no 
 evidence of its cause. 5 
 
 59. Reasonable Use of Waters How Determined, To determine the 
 reasonable use of water by a mill-owner, it has been held necessary to con- 
 sider the nature, necessity, and extent of the use, the manner in which the 
 water is applied, previous usage, the nature and condition of the improve- 
 ments upon the stream, the volume and velocity of the water, his prescriptive 
 rights and their nature, the situation of lower mills and ponds, and the 
 capacity of the latter, and the practicability of enlarging them. 6 The 
 quantity of water used is limited by, and must not exceed, what is reasonably 
 required for the operation and propulsion of works of such character and 
 magnitude as are adapted and appropriate to the size and capacity of the 
 stream. 7 The general usage of the country in similar cases may be considered 
 by the jury in deciding what is a reasonable use. 8 The question cannot be 
 determined by the requirements of the defendant's business or the use which 
 was previously made of the stream, as in the case of a purchase of a mill privi- 
 lege from an owner of a lower privilege. 9 
 
 60. Water for Domestic Purposes. A riparian owner may appropriate 
 
 1 Hoyt v. Cline (N. Y. App.), 31 N. E. 5 Glassell v. Verdugo (Cal.), 41 Pac. 
 Rep. 623; Lewis v. Springfield W. Co. Rep. 403. 
 
 (Pa. Sup.), 35 Atl. Rep. 187. 6 Timm v. Bear, 29 Wis. 254; Dumont 
 
 2 Hayes v. Waldron, 44 N. H. 580. And v. Kellogg, 29 Mich. 420; Stamford v. 
 see Pine v. New York (C. C.), 76 Fed. Felt (Cal.), 16 Pac. Rep. 900 [1888]. 
 Rep. 418. 7 Springfield v. Harris (Mass.), 4 Allen 
 
 3 Saunders v. Bluefield W. & Imp. Co. 496; Thurber v. Martin (Mass.), 2 Gray 
 
 (C. C.), 58 Fed. Rep. 133; Carpenter v. 394. 
 
 Gold (Va.), 14 S. E. Rep. 329. 8 Dumont v. Kellogg, 29 Mich. 420. 
 
 4 Low v. Schaffer (Oreg.), 33 Pac. Rep. 9 Gould on Waters, 208. 
 678. 
 
' 6 1. OPERATIONS PRELIMINARY TO CONSTRUCTION. 40 
 
 and consume so much of the water flowing through his land as is necessary 
 to satisfy his natural wants, even though it consume all the water of the 
 stream. General domestic wants include such as are necessary to his house- 
 hold uses and for watering stock. 1 Natural wants (or ordinary use) have 
 been defined as those absolutely necessary to be supplied to maintain a man's 
 existence; artificial wants, as those which conduce to his comfort and pros- 
 perity. Among his natural wants are the uses of water to quench thirst, 
 keep clean, water stock, as these wants must be supplied or both man and 
 beast will perish. The supply of artificial wants (or extraordinary use) 
 properly includes those that are not indispensable, such as water-powers, 
 steam-plants, and irrigation in a fertile country. Manufactories promote the 
 prosperity and comforts of man, but are not absolutely essential to his exist- 
 ence. 2 The appropriation of waters required for domestic purposes has 
 always been held a reasonable use. 3 
 
 The reasonable use does not permit the riparian owner to dam up a 
 .stream and spread the water over a large surface, causing much of it to be 
 .lost by absorption and evaporation. 4 The grinding, washing, and cooling of 
 rubber have been held not purposes for which the inhabitants had the right to 
 appropriate and use the waters of a stream. 5 It has been held that the 
 appropriation of water for watering' a garden is a domestic use, 6 but not when 
 there is scarcely sufficient for the natural wants of other riparian owners, for 
 domestic use and for stock. 7 
 
 The right of a riparian owner to the use of water in a stream, it should be 
 remembered, is not an absolute right to a given quantity, but a right to a 
 reasonable use. He may not take an equivalent amount for another and a 
 different purpose. 8 A stream rising on one's land, it has been held, could 
 not be diverted from its natural channel, though the supply of water was 
 barely sufficient for the owner's domestic purposes. 9 
 
 61. Appropriation of Waters by Non-riparian Owners or for Non- 
 riparian Purposes. A person who is not a riparian owner cannot for any 
 purposes take or divert waters of a non-navigable watercourse, if such taking 
 shall injure lower riparian owners ; 10 as for irrigation, 11 not until after other 
 
 1 Gould on Waters, 205; 28 Amer. & 7 Mastenbrook v. Alger (Mich.), 68 N. 
 Eng. Ency. Law 953. W. Rep. 213. 
 
 2 Evans v. Merriweather, 4 111. 495; 8 Atty.-Gen'l v. Gt. Eastern R. Co., 23 
 City of Auburn v. Union W. P. Co. (Me.), L. T. 344. But see Marshall v. Hershey 
 38 Atl. Rep. 561; Gould on Waters, (Pa.), 39 Atl. Rep. 887 [1898]. 
 
 205. 9 Arnold v. Foot (N. Y.), 12 Wend. 330. 
 
 3 City of Auburn v. Union W. P. Co, Btit see Evans v, Merriweather, 4 111. 495. 
 (Me.), 38 Atl. Rep. 561 [1897]; Philadel- 10 Hayden v. Long, 8 Ore. 244; Devon- 
 phia & R. R. Co. v. Pottsville W. Co., shires. Eglin(Eng.), 14 Beav. 530; Gould 
 182 Pa. St. 418. v. Eaton (Cal.), 49 Pac. Rep. 577; Gould 
 
 4 Ferrea v. Knipe, 28 Cal. 344. on Waters, 224. 
 
 5 Para Rubber Shoe Co. v. Boston, 139 "Union M. & M. Co. v. Dangberg (C. 
 Mass. 155. C.), 81 Fed. Rep. 73; Vernon Ir. Co. v. 
 
 6 Wilts Canal Co. v. Swindon Water Los Angeles (Cal.), 39 Pac. Rep. 762. 
 Co., L. R. 9 Ch. 455. 
 
41 WATER. RIPARIAN OWNERS. 62. 
 
 owners have been supplied with what is required for tneir domestic purposes, 
 in California, where special irrigation laws prevail. 1 It has been held, how- 
 ever, that the taking of waters from a river by a non-riparian owner, and the 
 returning of it to the river unpolluted and undiminished after it has been 
 used to cool certain apparatus, was not a ground for an injunction against the 
 taking of the water, or against the riparian owner through whose lands it was 
 taken. 2 
 
 If two neighboring riparian owners divert a part of a stream, for their 
 mutual use and benefit, into a new channel, as a raceway, they may be held 
 to have riparian rights in the raceway as part of the stream, same as in a 
 natural stream, and may therefore prevent an upper riparian owner from 
 diverting more than his share of the waters. 3 
 
 A non-riparian owner has been held to have such a right to running water 
 as will enable him to prevent an upper proprietor from interfering with such 
 right by using or granting the water for purposes which were not riparian. 4 
 
 The owner of a mill site on a stream fed by lakes and surrounding marsh 
 may enjoin a township, not a riparian .owner, from diverting the head waters 
 by cutting a ditch along the highway, even though his resulting loss would 
 be small in comparison with benefits accruing to the public and owners of 
 lowlands. 5 
 
 62, Appropriation of Waters for Municipal Water-supply. A company 
 may not collect the waters of a stream into a reservoir to supply the inhab- 
 itants of a distant town. 6 This is true even though the city own's land on the 
 stream and its inhabitants have from time immemorial used the water for 
 domestic purposes. 7 It may take water and sell it, if it be within its right to 
 a reasonable use. 8 
 
 A water company authorized by its charter to take certain land and a 
 stream flowing through it is entitled to all the rights of a riparian owner. 9 
 
 As against lower owners a riparian owner cannot sell the waters of the 
 stream, 10 as to a railroad company for use of its locomotives. n A water-works 
 
 1 Smith v. Corbit (Cal.), 48 Pac. Rep. Pa. St. 211, and Broadmoor Dairy v. 
 725. Brookside Co. (Colo.), 52 Pac. Rep. 792 
 
 2 Kensit v. Grand E. R. Co. (Eng.), 27 [1897]. 
 
 Ch. Div. 122; Ormorod v. Todmorden 7 ^Etna Mills v. Waltham, 126 Mass. 
 
 Mill Co. (Eng.), ii Q. B. Div. 155. See 422; Waller v. Manchester (Eng.), 6 H. 
 
 Bristol Hydraulic Co. v. Boyer, 67 Ind. & N. 667; Standen v. New Rochelle W. 
 
 236. Co. (Sup.), 36 N. Y. Supp. 92. 
 
 3 Nuttal v. Bracewell, L. R. 2 Ex. i. 8 Gillis v. Chase (N. H.) ( 31 Atl. Rep. 
 
 4 Heilbron v. Fowler Canal Co., 75 18; Lehigh C. & N. Co. v. Scranton G. & 
 Cal. 426; Williams v. Wadsworth, 51 W. Co., 6 Pa. Dist. Rep. 291. 
 
 Conn. 277. 9 Wright v. Woodcock, 86 Me. 113. 
 
 5 Stock v. Jefferson Tp. (Mich.), 72 N. 10 Higgins ^.Flemington W. Co., 36 N. 
 W. Rep. 132 [1897]. J. Eq. 538; Swindon W. Co. v. Wilts, 
 
 6 Swindon W. Co. v. Wilts, etc., Co., 7 etc., Co. (Eng.), L. R. 7 H. L. Cas. 697; 
 
 H. L. Cas. 697; Higgins v. Flemington Heilbron v. Fowler S. Canal Co., 75 Cal. 
 
 W. Co., 36 N. J. Eq. 538; Standen v. 426. 
 
 New Rochelle W. Co. (Sup.), 36 N. Y. n Phila. & R. R. Co. v. Pottsville W. 
 
 Supp. 92; Smith v. Brooklyn (Sup.), 46 Co. (Com. PL), 18 Pa. Co. Ct. Rep. 501. 
 
 N. Y. Supp. 141. See Haupts App., 120 But see 182 Pa. St. 418. 
 
63. OPERATIONS PRELIMINARY TO CONSTRUCTION. 42 
 
 company which supplies water to cities and public institutions, in so doing, 
 is not exercising the rights of the riparian owner, 1 not if the taking affects 
 injuriously the rights of other riparian owners. 2 
 
 A company authorized to make a lock navigation in a public stream has 
 not the privilege of a riparian owner, and may not swell the waters of the 
 stream without being liable for damages suffered by riparian owners. 3 
 
 A grant of the right to divert the waters of a brook ' ' running over the 
 grantor's land" does not confer the right to divert the two streams that by 
 their junction form the brook, though they do not unite until after leaving the 
 grantor's land; 4 but an appropriation of the waters of a stream to a beneficial 
 use has been held an appropriation of its tributaries 5 above the point of 
 diversion. 6 
 
 63. Appropriations for Industrial Purposes. The extent to which water 
 may be appropriated ior industrial purposes by a riparian owner will depend 
 upon a reasonable use, having regard for the rights of other riparian owners, 
 and depending not a little upon the good and indulgent neighbors above 
 and below him upon the stream. Appropriation of waters for steam-boilers 
 has been held reasonable if not excessive, but such a use has been held not 
 to be a natural want. 7 It has been held that a riparian owner has a right to 
 pump water from a stream to a reservoir, and to convey it thence by pipes to 
 his dwelling-house upon any estate at a distance from a stream. This water 
 may be applied to his domestic and all other necessary purposes, provided he 
 takes only a" reasonable quantity with reference to the size of the stream and 
 the rights of his neighbors. He must not take more water by means of 
 machinery than he otherwise would have a right to take. 8 
 
 A railroad company owning riparian lands, or holding them by lease, and 
 diverting water for the purpose of supplying its locomotives, does not thereby 
 exercise its right of eminent domain, and consequently its right to the water 
 is the same as that of any other riparian owner. Therefore, regardless of the 
 needs of its business, it cannot enjoin the taking of the water by a water 
 company .duly proceeding under the power of eminent domain. 9 The fact 
 
 1 Harding v. Stamford W. Co., 41 Conn. N. Y. Supp. 781. 
 
 87; Emporia v. Soden, 25 Kan. 588; Med- 5 Low v. Rizor (Oreg.), 37 Pac. Rep. 82. 
 
 way Nav'. Co. v. Romney, 9 C. B. N. S. 6 Low v. Schaffer (Oreg. , 33 Pac. Rep. 
 
 575; Mills v. Waltham, 126 Mass. 422. 678. 
 
 But see Gillis v. Chase (N. H.), 31 All. 7 28 Amer. & Eng. Ency. Law 954; El- 
 Rep. 18; Vernon Irrig. Co. v. Los Ange- liott v. Fitchburg R. Co. (Mass.), loCush. 
 les (Cal.), 39 Pac. Rep. 762. 191. 
 
 2 Lord v. Meadville W. Co. (Pa.), 26 8 Norbury77. Kitchin, 7 L. T. N. 8.685. 
 W. N. C. no. See Ingraham v. Camden But see Broadmoor Dairy v. Brooksidq 
 W. Co., 82 Me. 335; Re Barre W. Co., 62 W. & I. Co. (Colo.), 52 Pac. Rep. 792 
 Vt. 27. [1897]. 
 
 3 Monongahela Nav. Co. v. Coon, 6 Pa. 9 Philadelphia & R. R. Co. v. Pottsville 
 St. 379. Water Co., 38 Atl. Rep. 404, 182 Pa. St. 
 
 4 Petrie v. Hamilton College (Sup.), 40 418. 
 
43 WATER. RIPARIAN OWNERS. 63. 
 
 that the railroad does not need the water for domestic purposes does not 
 entitle it to use it for other purposes. 1 
 
 A mill-owner, having the subordinate right, must take notice when he is 
 infringing on the right of his superior, and not reduce the water so low as to 
 interfere with that right; and if he does so reduce it, he is liable for all the 
 damages sustained by the owner of the superior right by delay through wait- 
 ing for the water to accumulate. 2 
 
 1 Atty.-Gen'l v. Great Eastern Ry. Co. Garwood v. N. Y. Central R. Co., 83 N. 
 
 (Erig.j, 23 L. T. N. S. 344; Elliott v. .400; Swift v. Goodrich, 70 Cal. 103. 
 
 Fitchburg R. Co., 10 Cush. 195; Penn- a Root v. Johnson, 26 Vt. 64 [1853], 
 sylvania R. Co. v. Miller, 112 Pa. St. 34;- 
 
CHAPTER VI. 
 WATERS FOR IRRIGATION IN ARID COUNTRIES. 
 
 71. Irrigation under the Common Law. Irrigation, generally, is the 
 operation of watering lands by artificial means for agricultural purposes. It 
 is also defined as the act of wetting or moistening the ground by artificial 
 means. While the strict definition is the application or use of waters to 
 the soil for purposes of agriculture, yet most of the statute laws providing for 
 irrigation expressly make mining, manufacturing, and other industrial uses 
 of water lawful. 
 
 At common law irrigation was not a natural want which authorized an 
 exclusive or undue appropriation by a riparian owner. The right to irrigate 
 for the simple purposes of increasing the products of the soil was subordinate 
 to the natural wants of other riparian owners, such as were necessary for their 
 families, tenants, and stock ; i.e., their uses for necessary domestic purposes. 1 * 
 The use of water for watering the soil was not a natural want when there was 
 a scarcity of water for the domestic uses of other riparian owners, and the 
 right to divert the waters of a stream for purposes of irrigating lands of a ripa- 
 rian owner was always subject to the use of other riparian owners for natural 
 wants, and was permissible only when there was no excessive diminution of 
 waters. 2 
 
 Under the common law, therefore, the appropriation of water by a riparian 
 proprietor was to be determined, as has been set forth in the preceding chapter, 
 by the reasonableness of the use, which depended upon the amount of water 
 and the use to which it was put by other riparian owners, and with a proper 
 regard for their rights and privileges to a reasonable use of the waters of the 
 same stream. It permitted only a reasonable use of the waters of a stream 
 for irrigating purposes, and the question of reasonable use was one of fact 
 and depended upon the circumstances of each particular case. 3 
 
 To-day it is a general law, based upon the common law, that the right to 
 
 1 ii Amer. & Eng. Encyclopaedia of 9 Ch. 455; Mastenbrook v. Aiger (Mich.), 
 
 Law 846. 68 N. W. Rep. 213. 
 
 2 Embry v. Owen, 6 Exch. 353; Wilts 3 See n Amer. & Eng. Ency. of Law 
 
 Canal Co. v. Swindon Water Co., L. R. 846, 847. 
 
 * See Sees. 51-69, supra. 
 
45 WATERS FOR IRRIGATION IN ARID COUNTRIES. 72V 
 
 use water for irrigation of lands is subordinate to the right of a coproprietor 
 to supply his family, tenants, etc., their natural wants for necessary and 
 domestic purposes. 1 A riparian owner may take as much water from a 
 stream as is necessary for watering his cattle and for domestic purposes, even 
 though it consume all the water of the stream. 2 
 
 If the domestic wants and necessities of other riparian owners are sup- 
 plied, a reasonable use of the water for purposes of irrigation may be had. 3 
 Its use must be shared equitably with other riparian proprietors. 4 
 
 A riparian proprietor is entitled to a reasonable use of the waters of a 
 stream, which has been denned as any use that does not work actual, 
 material, and substantial damage to the common right which each proprietor 
 has as limited and qualified by the precisely equal right of every other pro- 
 prietor. 5 He has no rights in the corpus of the water. 6 He may not obstruct 
 the stream, as by a dam, so as to prevent the water running substantially as it 
 was accustomed to run in its natural state. 7 He may not exhaust a head 
 spring upon his land to the injury of lower owners. 8 
 
 72. Local Irrigation Laws. In England there was little need of laws for 
 the irrigation of lands in comparison with the great necessity for irrigation by 
 artificial means in America and Australia, where there are broad tracts of arid 
 and unproductive lands which can be made fruitful only by irrigation. It 
 may therefore be expected that the English common law affords but few 
 decisions upon the subject of irrigation, and those cases that have come before 
 the courts have been determined upon the same principles as have been explained 
 by, and described in, the foregoing and succeeding chapters upon the diversion, 
 detention, and appropriation of waters. In the early history of the United States, 
 when only the eastern part of the country was inhabited, developed, and im~ 
 proved, there was little more necessity for laws upon the subject of irrigation 
 than had existed in England ; but as the march of civilization ' ' wended its 
 westward way, " and was met by the broad, arid expanse of desert which covers, 
 parts of the western and Pacific states, and the development and cultivation 
 of the lands of these states became dependent upon the economical use and 
 application of water, special laws had to be enacted which should encourage 
 
 1 Baker v. Brown, 55 Tex. 377. 5 Union M. & M. Co. v. Dangberg, 
 
 2 Union M. & M. Co. v. Dangberg, 2 2 Sawyer 450; Lux v. Haggin, 69 Cal. 
 Saw. 450; Ferrea v. Knipe, 28 Cal. 340; 255. 
 
 Hale v McLea, 53 Cal. 578; Lux v. Hag- 6 Union M. & M. Co. v. Dangberg, 2 
 
 gin, 69 Cal. 255. " Saw. 450; Eddy v. Simpson, 3 Cal. 249; 
 
 3 Union M. & M. Co. v. Ferris, 2 Saw. Hale v. Lea, 53 Cal. 578; Pope v. Kin- 
 176; Ellis v. Tone, 58 Cal 289; Anaheim man, 54 Cal. 3; Weiss v. Oreg. I. & S. 
 W. Co. v. Semi-Tropic W. Co., 64 Cal. Co., 13 Oreg. 496. 
 
 185; Swift v. Goodrich, 70 Cal. 103; Hale 7 Ferrea v. Knipe, 28 Cal. 341; Lobdell 
 
 v. McLea, 53 Cal. 578; Larned v. Tange- v. Simpson, 2 Nev. 274; Bliss v. Johnson, 
 
 man, 65 Cal. 334; Gould v. Stafford, 77 76 Cal. 597; Taylor v. Welch, 6 Oreg. 
 
 Cal. 66; Coffman v. Robbins, 8 Oreg. 198; Hayden v. Long, 8 Oreg. 244; Coff- 
 
 278. man v. Robbins, 8 O/eg. 278; Shively v- 
 
 4 Shook v. Colphan, 12 Oreg. 239. See Hume, 10 Oreg. 76. 
 
 Low v. Schaffer (Oreg.), 33 Pac. Rep. 678. 8 Heming v. Davis, 37 Tex. 183. 
 
7 2 - OPERATIONS PRELIMINARY TO . CONSTRUCTION. 46 
 
 the irrigation of the arid lands of these states, and which should secure to those 
 parties who should design, develop, and construct irrigation works the assur- 
 ance that their investments should be protected, and that they should have 
 the benefit of prior appropriation of water and of prior occupation of the 
 fields. To accomplish this several of the states have incorporated into their 
 constitutions, provisions which in effect make the waters of springs and 
 streams public property, and which expressly provide that the common-law 
 doctrine of riparian rights shall not obtain or be in force in that particular 
 state or territory. l 
 
 This desired effect is usually obtained by provisions in the constitutions 
 of the states containing arid lands by which " the water of every natural 
 stream in the state or territory is declared to be the property of the public 
 and to be subject to the regulation, control, and appropriation of the state in 
 the manner prescribed by the statute laws of the state. ' ' 2 
 
 The common-law doctrine of water rights thereby has been superseded, 3 
 and these constitutional provisions have usually been supplemented by special 
 legislative acts providing for the formation, organization, and government of 
 irrigation districts or companies, with privileges and restrictions which are 
 calculated to confer the greatest benefit to the largest area and to the greatest 
 number of residents in the arid district, affording protection to the money 
 invested in the improvement. In some states, as California and Colorado, 
 these laws provide for the creation and government of such districts or com- 
 panies in considerable detail, but they are altogether too voluminous to be 
 included in a book of this character. They provide for the construction of 
 irrigating canals or ditches, define the rights and liabilities of the persons who 
 build the irrigating channels, determine the relative rights of the different irri- 
 gating companies or associations, their priorities, and the amount of water which 
 each may appropriate under the conditions of its creation and organization. 
 They also usually provide for the taxing or assessing of the district which is 
 to be benefited, and for the relative rights of the persons who demand water 
 for irrigating or other beneficial purposes from such companies or associations. 
 In some states such companies are made common carriers, and as such do 
 not and cannot have any property in the water itself, but are permitted only 
 
 1 Reno S. M. & R. v. Stevenson (Nev.), the United States Senate, in 1890, on 
 4 Law Rep. 60 [1889]. Irrigation and Reclamation of Arid 
 
 2 See subject of "Waters or Water Lands," Public Documents, in 4 vols. 
 Rights" in the constitutions -of the 3 The courts of the state of Nevada and 
 several states of California, Colorado, Washington have declared that the corn- 
 Idaho, Montana, North Dakota, Wash- mon-law doctrine of riparian rights was 
 ington, and Wyoming, and the special unsuited to the conditions there existing, 
 irrigation laws enacted by the legisla- Reno S. M. & R. v. Stevenson (Nev.), 4 
 tures of Arizona, California, Colorado, Law Rep. 60 [1889]; Benton v. Johncox 
 North and South Dakota, Idaho, Kan- (Wash.), 49 Pac. Rep. 495. 
 
 sas, Montana. Nebraska, Oregon, New The colonization law of Texas and 
 
 Mexico, Texas, Utah, and Wyoming, the statutes of the state recognize the 
 
 which are collected and published in a right to use water for irrigation pur- 
 
 " Report of the Special Committee of poses. Tolle v. Correth, 31 Tex. 362. 
 
47 WATERS FOR IRRIGATION IN ARID COUNTRIES. 73. 
 
 to charge for the transportation or conduct of the water from place to place 
 and the delivery of the same to the parties who have the right, under the 
 laws, to demand a reasonable and proportionate use of the water so carried. 
 This right to demand the use of waters depends largely upon the priority of 
 application for water, the location of the land with respect to the ditch or to 
 the stream from which the water is taken, and in some cases it depends upon 
 the benefit to be derived from the use of such water. 
 
 The different methods of enforcing these regulations, whether by commis- 
 sioners, or by boards representing irrigation districts, or by the courts, are 
 matters with which the engineer usually has not to concern himself, and 
 which are matters of procedure in different jurisdictions or states where litiga- 
 tion may arise. To prepare a thorough digest and exposition of the law 
 upon the subject of irrigation in the different states would make too large a 
 book, and therefore the reader must be content with a general exposition of. 
 the subject, such as may be contained in a chapter of a few pages. 
 
 Any engineer who is engaged in the subject of irrigation is recommended 
 to secure from the Federal Government a copy of an excellent work, Report 
 of the Special Committee of the U. S. Senate on the Irrigation and Reclama- 
 tion of Arid Lands, in four volumes, published by the Government in 1890, 
 which contains the constitutional and statute laws of all the states as they 
 existed at that time, and in addition thereto many decisions. 
 
 It must be understood that what is herein contained is the law as it has 
 been determined by the courts under the constitutions or statutes of the 
 several states, and that while it has a general application throughout the 
 states which contain arid districts, it cannot be taken literally for any partic- 
 ular state or jurisdiction. 
 
 73. Irrigation Rights by Prior Appropriation. The early settlement 
 and development of the arid districts of the western and Pacific states was 
 owing to mining operations, the successful conduct of which required large 
 supplies of water. The country being wild and uninhabited, the question of 
 riparian rights did not then arise, because riparian owners did not exist; nor 
 was there conflict between mining and the various industrial uses of agricul- 
 ture, milling, and manufacture, because the latter were not developed. The 
 operations of mining having the prior right of possession and use, and being 
 the chief industry, the courts upheld such prior rights to water as para- 
 mount, upon the ground of local customs and local laws, and in order to 
 foster and encourage the greatest industry of the country. 
 
 After the courts of the territories and states had accepted this doctrine 
 of the right of prior appropriation and use for some years, it was recognized 
 by act of Congress, July 26, 1866, l and became, either by original adoption 
 
 1 Atchison v. Peterson, 20 Wall. 507: v. Crafts. 53 Cal. 135; Osgood v. El 
 Basey v. Gallagher, 20 Wall. 670; Union Dorado W. & M. Co., 56 Cal. 571. 
 M. & M. Co. v. Ferris, 2 Saw. 176; Cave 
 
73- OPERATIONS PRELIMINARY TO CONSTRUCTION. 48 
 
 or by amendment, an important feature in the constitution of those states 
 having large arid districts. 
 
 The act of Congress not only recognized the right of prior appropriation, 
 but it also confirmed rights already held under the local customs, laws, and 
 court decisions; it did not introduce any new or different policy on the part 
 of the Government, but it recognized, sanctioned, protected, and confirmed the 
 system already established, and provided for its continuance. 1 The act con- 
 ferred upon appropriators of water from a natural stream the right to 
 construct ditches across the public lands, subject only to the liability of 
 paying for any damages to the possession of a settler on such lands. 2 
 
 These rights of prior appropriation were afterwards extended to other 
 beneficial uses, and particularly to that of irrigation for agricultural purposes. 
 Colorado is said to be the first state to recognize the miner's law of prior 
 appropriation of water as applicable, with restraining interpretation, to bene- 
 ficial use in agriculture. The state, by its courts as well as by legislation, 
 recognized as fundamental the principle of the public nature and property of 
 all natural waters lying within a region so arid that agriculture cannot be 
 carried on without the artificial conservation and distribution of the same. 
 The state applied two qualifying interpretations to the doctrine of prior 
 appropriation: one that the beneficial use which is the basis of such appro- 
 priation of water must necessarily be limited in its application by the wants 
 of all other subsequent users that is, that an appropriation made in days 
 when necessity was unknown could not be construed to deprive the members 
 of a growing community of their pro rata share after the first or prior appro- 
 priator had received his portion ; the other, that, water being public property, 
 the carriers of the same by means of ditches or other methods can claim no 
 ownership or possession in the water itself. Their remuneration was to be 
 derived from the transportation and distribution of the water through the 
 channels which they have constructed to the lands on which it is needed. 
 The water companies were and are common carriers, and their legal status is 
 the same as that of railroads or other transportation companies. 3 As public 
 carriers and guast-public servants, they are charged with certain duties and 
 subject to the reasonable control of the state in consideration of the privileges 
 awarded to them. 4 They must furnish water at the established rate to the 
 persons using it, as required by law, and by the articles of incorporation if 
 the owner be a company. 5 
 
 1 Jennison v. Kirk', 98 U. S. 453; of Arid Lands by Special Committee of 
 Broder v. Natoma W. Co., 101 U. S. U. S. Senate, supra. 
 
 274; Vansickle v. Haines, 7 Nev. 249; 4 Price v. Riverside L. & I. Co., 56 
 
 Titcomb v. Kirk, 51 Cal. 288; Jone^s v. Cal. 431; McCrary v. Beaudry, 67 Cal. 
 
 Adams, 19 Nev. 78. 120; Wheeler v. Northern Colo. Irr. Co., 
 
 2 Hobart v. Ford, 6 Nev. 77; Shoe- 10 Colo. 582. 
 
 maker v. Hatch, 13 Nev. 261. 5 Golden Canal Co. v. Bright, 8 Colo. 
 
 3 Hinton's Report, vol. iv, page 72. 144; Wheeler v. Northern Colo. Irr. Co., 
 Report on Irrigation and Reclamation 10 Colo. 582. 
 
49 WATERS FOR IRRIGATION IN ARID COUNTRIES. ?4- 
 
 74. Prior Appropriator vs. Riparian Owners. In arid districts the 
 waters of natural streams may be appropriated by an upper riparian owner for 
 irrigation of land, to the exclusion of the use thereof by a lower riparian 
 owner for such purpose. 1 A valid appropriation of the waters of a stream, to 
 the exclusion of a riparian owner, may be made for the purpose of irrigation, 
 though the lands to be irrigated are not located on the banks or in the 
 neighborhood of the stream. 2 In case of conflict between the appropriators of 
 water in a given stream, that appropriation that is first in time is first in right. 3 
 
 A right acquired by appropriation of water flowing through public land 
 will be protected as against a subsequent purchaser of such land. 4 A prior 
 appropriator of water from a natural stream flowing through state lands has 
 such a vested right to the use of the water, and to the ditch in which it 
 flows, also constructed on said lands, as will defeat the claim of one who, 
 with notice of such diversion and existence of the ditch, obtains from the 
 state a deed for the premises without reservation of any water rights. 5 
 
 Miners and others, in a i gion where the artificial use of water is an 
 absolute necessity, have the right, though not riparian proprietors, to appro- 
 priate for mining, irrigation, etc, the waters of non-navigable streams flowing 
 through the public lands, so far as not already appropriated by others. The 
 previous establishment of a government reservation below the point of appro- 
 priation does not affect the right, except so far as the waters of the stream 
 have been previously appropriated for the use of such reservation. 6 
 
 A law which gives unappropriated waters of a natural stream to the public, 
 which may appropriate them for irrigation, cannot operate on the rights of 
 riparian owners existing when the law was passed, but is intended to operate 
 only on such interest as the state had by reason of its ownership of land 
 bordering on natural streams. 7 One who has appropriated public land 
 acquires a right to the use of water flowing through it, and this right is good 
 as against every one except the Government and those who may have 
 acquired prior rights thereto. 8 
 
 The Civil Code of California, which provides that " the rights of riparian 
 proprietors are not affected by the provisions of this title, ' ' declares in effect 
 that those appropriating water under previous sections shall not acquire the 
 right to deprive of the flow of the stream those who shall have obtained from 
 the state the title to or right of possession in riparian lands, before proceedings 
 leading to appropriation were taken. 9 
 
 1 Barrett v. Metcalfe (Tex. Civ. App.), 5 Carson v. Centner (Oreg.), 52 Pac. 
 33 S. W. Rep. 758. Rep. 506 [1898]. 
 
 2 Hammonds. Rose (Colo.), 19 Pac. Rep. 6 Krall v. United States (C. C. A.), 79 
 466 [1889]; Moyer v. Preston (Wyo.). 44 Fed. Rep. 241. 
 
 Pac. Rep. 845. Semble Hillman v. Hard- 7 McGee Irr. D. Co. v. Hudson (Tex. 
 
 wick (Idaho), 28 Pac. Rep. 438. Sup.). 22 S. W. Rep. 967. 
 
 8 Dunniway v. Lawson (Idaho), 51 Pac. 8 Crandall v. Woods, 8 Cal. 136; Leigh 
 
 Rep. 1032 [1898]. Co. v. Ind. D. Co., 8 Cal. 323; Huston v. 
 
 * Ramelli v. Irish (Cal.), 31 Pac. Rep. Byhee (Oreg.), 2 Saw. Rep. 568 [1889]. 
 I 9 Lux v. Haggin, 69 Cal. 255. 
 
75- 
 
 OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 The use of water for irrigation of a district has been held to be a public use 
 even though the residents of the district did not have the right to use the water; 
 and an assessment imposed to pay for such a public improvement has been 
 held not to be a depriving of a landowner of his property without due process 
 of law. If each landowner has the right to use a proportionate share upon 
 the same terms as all the others, the use is a public, and not a private, one. 1 
 
 75. Priority in Appropriation. When the right to the waters of a stream 
 depends upon the first appropriation of the waters thereof, promoters, 
 engineers, and contractors will understand that it means " a hustle " between 
 rival companies and their servants, who aim to secure first the right of prior 
 appropriator. It is important, therefore, to know w r hat constitutes an appro- 
 priation in the matter of time, as much as in the act itself. 
 
 The first appropriator of water from a natural stream upon the public 
 lands is held to have a prior right thereto to the extent of such appropriation, 
 if it was for a beneficial purpose, 8 and so long as the water is applied to a 
 beneficial use. 3 
 
 An appropriator acquires only the right of possession and use of the water, 
 qualified by the rights of others to its use, in such manner as shall not materi- 
 ally diminish or deteriorate it, at the place of his appropriation in quantity or 
 quality. 4 . The persons above must allow the water to flow down to the point 
 of diversion, so that the quantity and quality ot the water appropriated shall 
 not be diminished, and subsequent appropriators have the right to use water 
 from said stream only in such manner as shall not cause any positive or sensi- 
 ble injury to former appropriators. 5 
 
 1 Fallbrook Irrigation Dist. v. Bradley, 
 17 Sup. Ct. Rep. 56; reversing 68 Fed. 
 Rep. 948. 
 
 2 Atchison v. Peterson, 20 Wall. 507; 
 Basey v. Gallagher, 20 Wall. 670; Irvvin 
 v. Phillips, 5 Cal. 140; Tartar v. Spring 
 Creek M. & Mg. Co., 5 Cal. 395; Hill v. 
 Newman, .5 Cal. 445 ; Conger v. Weaver, 6 
 Cal. 548; Hoffman v. Stone, 7 Cal. 47; 
 B. R. & A. W. & M. Co. v. N. Y. Mg. 
 Co., 8 Cal. 327; Hill v. King, 8 Cal. 336; 
 Butte Canal & Ditch Co. v. Vaughn, n 
 Cal. 143; Ortman v. Dixon, 13 Cal. 33; 
 McKinney v. Smith, 21 Cal. 374; Union 
 Water Co. v. Crary, 25 Cal. 504; Davis v. 
 Gale, 32 Cal. 26; Osgood v. El Dorado 
 W. & M. Co., 56 Cal. 571; Himes v. 
 Johnson, 61 Cal. 259; Brown v. Mullin, 
 65 Cal. 89; Junkans v. Bergin, 67 Cal. 
 267; Ware v. Walker, 70 Cal. 591; Schil- 
 ling v. Rominger, 4 Colo. 100; Coffin v. 
 Left Hand Ditch Co., 6 Colo. 443; Wheel- 
 er v. Northern Colo. Irr. Co., 10 Colo. 
 582; Golden Canal Co. v. Bright. 8 Colo. 
 144; Hammond v. Rose, n Colo. 524; 
 Lobdell v. Simpson, 2 Nev. 274; Ophir 
 Silver Mg. Co. v. Carpenter, 4 Nev. 534; 
 
 Dalton v. Bowker, 8 Nev. 180; Barnes v. 
 Sabron, 10 Nev. 217; Strait v. Brown, 16 
 Nev. 317; Jones v. Adams, 19 Nev. 78; 
 Atchison v. Peterson, i Mont. 561; Bark- 
 ley v. Tieleke, 2 Mont. 59; Keeney v. 
 Carillo, 2 N. M. 480; Farmers' High- 
 line Canal v. Southworth (Colo.), 4 Law- 
 yers' Rep. 767 [1889] ; Crane v. Winsor, 
 2 Utah 248; Monroe v. Ivie, 2 Utah 535; 
 Kaler v. Campbell, 13 Oreg. 596. 
 
 3 Wyatt v. Larimer & W. Irr. Co. (Colo. 
 App.), 29 Pac. Rep. 906; distinguish- 
 ing Wheeler v. Irrigation Co., 10 Colo. 
 582. 
 
 4 Columbia Min. Co. v. Halter, i Mont. 
 296; Alder Gulch Con. Mg. Co. v. Hayes, 
 6 Mont. 31; Gassert z>. Noyes (Mont.), 
 44 Pac. Rep. 959. 
 
 5 Bear River & Auburn W. & M. Co. v. 
 N. Y. Mg. Co., 8 Cal. 327; Hill v. King, 
 8 Cal. 336; Butte Canal & Ditch Co. v. 
 Vaughn, n Cal. 143; Phoenix Water Co. 
 v. Fletcher, 23 Cal. 482; Natoma W. & 
 M. Co. v. McCoy, 23 Cal. 491; Nevada 
 Water Co. v. Powell, 34 Cal. 109; Stein 
 Canal Co. v. Kern Island Irr. Co., 53 
 Cal. 563; Lobdell v. Simpson, 2 Nev. 274; 
 
$1 WATERS FOR IRRIGATION IN ARID COUNTRIES. 75. 
 
 Unless the prior appropriates is entitled to all the water of a natural 
 stream, he cannot, in the nature of things, identify certain specific water as 
 belonging to himself while the same remains in the natural channel. So long 
 as he is able to secure the full amount of water to which he is entitled, he 
 will not be heard to complain that others are diverting its waters. 1 
 
 On the other hand, a prior appropriator may not extend his use of the 
 waters to the prejudice or injury of subsequent appropriators. 2 His rights 
 are fixed by his appropriation, and when others locate on the stream or 
 appropriate the water, he cannot enlarge his original appropriation, or make 
 any change in the channel to their injury. Each subsequent locator or 
 appropriator is entitled to have the water flow in the same manner as when 
 he located. 3 
 
 Under a statute providing that, "as between appropriators, the one first 
 in time is the first in right," the court must determine the date and amount 
 of each appropriation, and from these facts determine the priority of right. 4 
 
 Priority of right has been held to apply not only to the original appro- 
 priators of the waters from the stream, but to the consumers or water-takers 
 from the ditch, 5 but not as against the company itself that has built the 
 ditch. 6 
 
 Notice of Appropriation. It is sometimes required that notice of the 
 appropriation be given and posted, after which a reasonable time is given to 
 complete the canal and works. 7 The notice must be sufficient to put a 
 prudent man on inquiry. 8 A notice of intention to appropriate water is 
 evidence of possession, but of itself alone it is not sufficient. Taken with 
 other acts it amounts to sufficient evidence. It forms one of a series of acts 
 which taken together perfect the right. 9 
 
 A notice duly posted is not affected or postponed by a second notice to 
 take the same water, made while prosecuting the work. The claimant does 
 not thereby abandon his rights under the first notice. Notices of intention to 
 
 Crane v. Win.sor, 2 Utah 248; Reno 4 Kirk v. Bartholomew (Idaho), 29 Pac. 
 
 Smelting M. <& R. Works v. Stevenson Rep. 40 and 42; Riverside Water Co. v. 
 
 (Nev.), 4 Lawyers' Rep. 60 [1889]; Coker Sargent (Cal.), 44 Pac. Rep. 560. 
 
 v. Simpson, 7 Cal. 340; Kleinschmidt v. 5 Farmers' High-line Canal v. South- 
 
 Greiser (Mont.), 37 Pac. Rep. 5. worth (Colo.), 4 Law Rep. 767 [1889]. 
 
 1 Saint v. Guerrerio (Colo. Supp.), 30 But see Wyatt v. Larimer & W. Irr. Co. 
 Pac. Rep. 335. (Colo. App.), post. 
 
 2 McKinney v. Smith, 21 Cal. 374; 6 Wyatt v. Larimer & W. Irr. Co 
 Nevada Water Co. v. Powell, 34 Cal. 109; (Colo. App.), 29 Pac. Rep. 906. 
 Higgins v. Barker, 42 Cal. 233; Stein 7 Dyke v. Caldwell (Ariz.), 18 Pac. 
 Canal Co. v. Kern Island Irr. Co., 53 Rep. 276. 
 
 Cal. 563; Brown v. Mullin, 65 Cal. 89; 8 Kimball v. Gearhart, 12 Cal. 27; Rob' 
 
 Junkans v. Bergin, 67 Cal. 267; Lobdell inson v. Imperial Silver Mg. Co., 5 Nev. 
 
 v. Simpson, 2 Nev. 274; Proctor v. Jen- 44. See Moyer v, Preston (Wyo.), 44 
 
 nings, 6 Nev. 83; Sieber v. Frink, 7 Colo. Pac Rep. 845. 
 
 148; Larimer County R. Co. v. People ex 9 Conger v. Weaver, 6 Cal. 548; Thomp- 
 
 rel., 8 Colo. 614. son v. Lee, 8 Cal. 275; Columbia Mining 
 
 3 Union Mill & Mining Co. v. Dang- Co. v. Holton, I Mont. 296. 
 berg (C. C.), 81 Fed. Rep. 73. 
 
75- OPERATIONS PRELIMINARY TO CONSTRUCTION. ' $2 
 
 appropriate water are to be liberally construed. 1 The notice should state the 
 time and place of diversion, the purposes for which it is taken, the amount 
 appropriated, and the place where it is to be used, 2 and it must be followed 
 by an actual appropriation within a reasonable time. - 
 
 Time or Date of Appropriation. The right to waters of a natural stream is 
 determined by priority of appropriation, but the water is not "appropriated " 
 until it is applied to some beneficial use * For certain purposes many cases 
 have held the date of an appropriation of waters to be carried back to the 
 time when the first steps were taken to secure it, if reasonable diligence had 
 been exercised in prosecuting the work, although the appropriation was not 
 deemed complete until the actual diversion and use of the waters. 4 
 
 The waters diverted must be utilized for the purposes intended within a 
 reasonable time, and the question as to what is a reasonable time is a question 
 of fact depending upon the circumstances of each case. 5 The law does not 
 require unusual or extraordinary effort, but only such diligence, constancy, 
 or steadiness of purpose or labor as is usual with men engaged in like enter- 
 prises who desire a speedy accomplishment of their design such progress as 
 will manifest a good-faith intention to complete the works within a reasonable 
 time. 6 It has been held that due diligence was exercised when an appro- 
 priator had posted a notice of appropriation and dug a ditch 15 or 20 feet in 
 length, letting water into it on or about the middle of December, made a 
 survey in January following, and did no more work until the latter part of 
 February, because he was building a house on the land. 7 The fact that 
 defendant's ditch broke before the water reached the land intended to be 
 irrigated, and thus enabled another to first apply the water on his land, was 
 held not to affect the prior appropriation. 8 
 
 In determining whether the work has been prosecuted with diligence it is 
 proper to take into consideration the circumstances surrounding the parties 
 
 1 Osgood v. El Dorado Co., 56 Cal. 571. nett (Oreg.), 45 Pac. Rep. 472. 
 
 2 Floyd v. Boulder F. & M. Co. (Mont.), 5 Conger v. Weaver, 6 Cal. 548; Maeris 
 28 Pac. Rep. 450. v. Bicknell, 7 Cal. 261; Parke v. Kilham, 
 
 3 Farmers' High-line Canal v. South- 8 Cal. 77; Cardoza v. Calkins (Cal.), 48 
 worth (Colo.), 4 Law. Rep. Ann. 767; Pac. Rep. 1010; Kimball v. Gearhart, 12 
 Bear Lake & R. W. & Irr. Co. v. Gar- Cal. 27; Weaver v. Eureka Lake Co., 15 
 land, 17 Sup. Ct. Rep. 7. Cal. 271; Sieber v. Frink, 7 Colo. 148; 
 
 4 Kelley v. Natoma Water Co., 6 Cal. Wheeler v. Northern Colo. Irr. Co., 10 
 105; Maeris v. Bicknell, 7 Cal. 261; Kim- Colo. 582; Atchison v. Peterson, i Mont, 
 ball v. Gearhart, 12 Cal. 27; N. C. & S. 561; Keeney v. Carillo, 2 N. M. 480; 
 C. Co. v. Kidd, 37 Cal. 282; Osgood v. Ophir S. Mg. Co. v. Carpenter, 4 Nev. 
 Water & Mining Co., 56 Cal. 571; Ophir 534. 
 
 :S. Mining Co. v. Carpenter, 4 Nev. 534; 6 Kimball v. Gearhart, 12 Cal. 27; 
 
 Irvvin v. Strait, 18 Nev. 436; Sieber v. Ophir S. Mg. Co. v. Carpenter, 4 Nev. 
 
 Frink, 7 Colo. 148; Wheeler v. Northern 534; Water-supply & S. Co. v. Larimer & 
 
 Colo. Irr. Co., 10 Colo. 582; Columbia W. Irr. Co. (Colo.), 51 Pac. Rep. 496 
 
 Mg. Co. v. Holter, I Mont. 296; Union [1897]. 
 
 M. & M. Co. v. Dangberg (C. C.), 81 Fed. 7 Dyke v. Caldwell (Ariz.), 18 Pac. Rep. 
 
 Rep. 73; Water-sup. Stor. Co. v. Lari- 276 [1888]. 
 
 mer & Weld Irr. Co. (Colo.), 51 Pac. Rep. 8 Wells v. Kreyenhagen (Cal.), 49 Pac. 
 
 496 [1897]; Nevada Ditch Co. v. Ben- Rep. 128. 
 
53 WATERS FOR IRRIGATION IN ARID COUNTRIES. 75- 
 
 which would affect the undertaking, such as the nature and climate of the 
 country, the conditions of the weather, and the difficulty in procuring labor 
 and materials. 1 The matters to be considered are those incident to the 
 enterprise and not those incident to the person, such as illness of the appro- 
 priator or his want of pecuniary means to prosecute the work. 2 
 
 During construction of the works so much water may be taken as is 
 necessary to save them from injury, though the arrangements for diverting and 
 using of the waters are not complete and the appropriation is not perfected. 3 
 
 The fact that one of three originators of the project dropped out does not 
 affect the extent of the appropriation claimed, but it all inures to the benefit 
 of those who carried on and completed the construction of the ditch. 4 
 
 To become an appropriator of water it is not necessary to construct 
 canals, ditches, flumes, or other works. If land is so situated that it is 
 rendered productive by the natural overflow of water, .the cultivation of such 
 land by means of the water so naturally moistening the same is a sufficient 
 appropriation of such water to the amount necessary for such use. 5 The 
 method of diversion is immaterial ; a riparian owner may pump water from a 
 stream for irrigation purposes, provided he takes no more than his propor- 
 tionate share. The amount he may take is not limited to that necessary for 
 land to which the water may be led in ditches by the force of gravity, but 
 extends to the taking, by pumps or otherwise, of water necessary to irrigate 
 lands above the level of the stream. 6 
 
 In connection with the subject of prior appropriation and the competition 
 between appropriators to first acquire water rights in a stream, the attention 
 of engineers and promoters should be called to the effect of estoppel upon the 
 rights of competing companies or persons. If a person who has a right by 
 prior appropriation to the use of the waters of a stream stands by and allows 
 another to purchase from a third party wrongfully claiming to have the right 
 to said water, without asserting or making known his claim, he may be 
 estopped from afterwards asserting that claim. 7 A prior appropriator may 
 not stand by and see another person or company appropriate the water of the 
 same stream at great expense and under a mistaken idea that he was thereby 
 acquiring a prior right to the waters thereof, and not inform him of his mis- 
 take. 8 Some courts hold that there must be some degree of turpitude in the 
 conduct of the party before a court of equity will estop him from asserting 
 his title, and that the mere fact that the true owners knew that a ditch was 
 constructed at heavy cost, and that it was maintained and used without any 
 
 1 Kimball v. Gearhart, 12 Cal. 27; 45 Pac. Rep. 472. 
 
 Ophir S. Mg. Co. v. Carpenter, 4 Nev. 534. 5 Thomas v. Guiraud, 6 Colo. 530. 
 
 2 Ophir S. Mg. Co. v. Carpenter, 4 Nev. 6 Charnock v. Higuerra (Cal.), 44 Pac. 
 534; Keeney v. Carillo, 2 N. M. 480; Cole Rep. 171. 
 
 v. Logan (Oreg.), 33 Pac. Rep. 568. 7 Fabian v. Collins, 3 Mont. 215. % 
 
 'Weaver v. Conger, 10 Cal. 233. 8 Parke v. Kilham, 8 Cal. 78; Dalton v. 
 
 4 Nevada Ditch Co. v. Bennett (Oreg.), Rentaria (Ariz.), 15 Pac. Rep. 37 [1888]. 
 
75- OPERATIONS PRELIMINARY TO CONSTRUCTION. 54 
 
 objection or opposition on their part, was not sufficient to operate as an 
 estoppel. 1 
 
 Beneficial Use of Appropriation. To constitute a legal appropriation 
 under the irrigation laws, the waters must be applied to some beneficial use or 
 purpose. 2 The true test is the successful application of the waters to the 
 beneficial use designed. The method of diverting or carrying the water or of 
 making the application is immaterial. 3 
 
 The right of appropriation of water for irrigation depends on the applica- 
 tion of the water to the intended use, and not on the capacity of the irrigating 
 ditch. 4 An appropriator is required to make an economic use of the water 
 appropriated. If the capacity of his ditches is greater than is necessary to 
 provide for such use, he should be confined to the amount necessary for such 
 economic use, though less than the capacity of his ditches; 5 but if a settler 
 construct a ditch of sufficient capacity only to irrigate his entire tract of 
 irrigable lands, and convey the water to only a small portion thereof, it is an 
 appropriation to the extent of the capacity of the ditch entitling the owner to 
 construct and maintain ditches to other portions of his land, provided the 
 total amount of water taken does not exceed the capacity of his original 
 ditch. 6 It is the amount of irrigable lands each proprietor owns that is the 
 controlling element, and not the amount actually under cultivation at the time. 7 
 
 Appropriation consists of diversion and use for a beneficial purpose and 
 within a reasonable time after diversion. 8 A proprietor of a water right is 
 entitled to so much water as he can put to a useful purpose on his lands 
 within a reasonable time by the use of reasonable diligence; but after ten 
 years from the date of the diversion it will be presumed that he has brought 
 under cultivation all the land intended by him for cultivation by the use of the 
 water. 9 As against one subsequent in right a prior appropriator can hold 
 only the maximum quantity which he has devoted to a beneficial use at some 
 time within the period by which his right would otherwise be barred for non- 
 user. 10 He may afterwards re-enter if intervening rights have not attached. n 
 
 Middle Boggs v. Merced Mg. Co., 14 berg (C. C.), 81 Fed. Rep. 73. 
 
 Cal. 279; Anaheim W. Co. v. Semi-tropic 6 McDonald v. Lannen (Mont.), 47 Pac. 
 
 W. Co., 64 Cal. 185; Stockman v. River- Rep. 648. 
 
 side L. & I. Co., 64 Cal. 57; Lux v. Hag- 7 Wiggins v. Muscupiabe Land & Water 
 
 gin, 69 Cal. 255. And see Zimmler, Admr., Co. (Cal.), 45 Pac. Rep. 160. 
 
 v. San Luis W. Co., 57 Cal. 221. 8 Justice Helm of Sup. Ct. Colorado 
 
 2 Maeris v. Bicknell, 7 Cal. 261 ; Weaver before U. S. Senate Committee Vol. Ill, 
 v. Eureka Lake Co., 15 Cal. 271; Davis Public Documents, Irrigation and Rec- 
 v. Gale, 32 Cal. 26; Sieber v. Frink, 7 lamation of lands, 1890; Union M. & M. 
 Colo. 148; Larimer R. Co. v. People Co. v. Dangberg (C. C.), 81 Fed. Rep. 73. 
 ex rd. Luthe, 8 Colo. 614; Wheeler v. 9 Senior v. Anderson (Cal.), 47 Pac. 
 Northern Colo. Irr. Co., 10 Colo. 582; Rep. 454; Cole v. Logan (Oreg.), 33 Pac. 
 Dick v. Caldwell, 14 Nev. 167; Farmers' Rep. 568. 
 
 High-line Canal v. Southworth (Colo.), 10 Smith v. Hawkins (Cal.), 52 Pac. Rep. 
 
 4 Lawyers' Rep. 767 [1889]. 139 [1898]. 
 
 3 Thojmas v. Guiraud, 6 Colo. 530. n Beaver Brook Res. & C. Co. z/. St. 
 *Lowv. Rizor (Oreg.), 37 Pac. Rep. 82. Vrain Res. & Fish Co. (Colo. App.) 40 
 5 Union Mill & Mining Co. v. Dang- Pac. Rep. 1066. 
 
55 WATERS FOR IRRIGATION IN ARID COUNTRIES. 75-, 
 
 Any beneficial use will sustain a right acquired by appropriation, but the 
 nature of a use may determine the extent of the appropriation. When water 
 is appropriated from a stream, the rights secured are limited to so much water 
 only as is necessary for that purpose. If there be any surplus, it may be 
 taken by others, 1 and at such times as it is not needed or not used by the 
 prior appropriator. 2 The prior appropriation gives only so much water as 
 was appropriated for the purpose or purposes for which it was taken. In 
 subordination to that amount, the remainder of the water in the stream may 
 be taken by others. 3 
 
 Water taken for a mill is not taken as an article of merchandise, to be 
 sold in the market. The water having been taken for use as a motive power 
 and having subserved that purpose, it may thereafter be taken by others. 4 A 
 diversion for the purpose of drainage simply, and not to apply to some useful 
 purpose, is not an appropriation within the laws of California, Colorado, and 
 Nevada. 5 
 
 Reasonable Use. In ascertaining whether irrigation is reasonable, its 
 effect, in depriving lower owners of natural irrigation, is to be considered with, 
 other circumstances. 6 A reasonable use has been stated to be " not so much 
 whether the water below has been diminished thereby as whether the lower 
 owner is materially injured by diminution, injured by not receiving the 
 benefit in due proportion to which he and other owners are entitled." 7 
 
 Mining, Agricultural, and Industrial Uses. Both the Federal Government 
 and the Western states recognize and protect the use of water for mining 
 purposes, and an appropriator of the water of a natural stream cannot recover 
 damages, it seems, for the pollution of his water by mining operations, so long 
 as the quantity is undiminished. 8 * 
 
 1 Ortman v. Dixon, 13 Cal. 33; McKin- v. Brown, 16 Nev. 317; Chiatovich v. 
 
 ney v. Smith, 21 Cal. 374; Davis v. Gale, Davis, 17 Nev. 133; Thomas v. Gutraud, 
 
 32 Cal. 26; Nevada Water Co. v. Powell, 6 Colo. 530. 
 
 34 Cal. 109; N. C. & S. C. Co. v. Kidd, 4 McDonald v. Bear River, etc., Co., 
 
 37 Cal. 282; Edgar v. Stevenson. 70 Cal. 13 Cal. 220. 
 
 286; Butte Canal & Ditch Co. v. Vaughn, 5 Maeris v. Bicknell, 7 Cal. 261; Weaver 
 n Cal. 143; Barnes v. Sabron, 10 Nev. v. Eureka Lake Co., 15 Cal. 271; Davis 
 217; Simpson v. Williams, 18 Nev. 432; v. Gale, 32 Cal. 26; Sieber v. Frink, 7 
 Lobdell v. Simpson, 2 Nev. 274; Sieber Colo. 148; Larimer R. Co. v. People ex 
 v. Frink, 7 Colo. 148; Union M. & M. rel. Luthe, 8 Colo. 614; Wheeler v. North- 
 Co, v. Dangberg (C. C.), 81 Fed. Rep. 73. ern Colo. Irr. Co., 10 Colo. 582; Dick v. 
 
 2 Smith v. O'Hara, 43 Cal. 371; Barnes Caldwell, 14 Nev. 167; Farmers' High- 
 v. Sabron, 10 Nev. 217; Becker v. Mar- line Canal v. Southworth (Colo.), 4 
 ble'Cr. Irr. Co. (Utah), 49 Pac. Rep. 892 Lawyers' Rep. 767 [1889]; Thomas v. 
 [1897]. ' Guiraud, 6 Colo. 530; Wilsons. Higbee 
 
 3 Butte Canal & Ditch Co. v. Vaughn, (C. C.), 62 Fed. Rfep. 723. See North 
 ii Cal. 143; Ortman v. Dixon, 13 Cal. Powder Mill Co. v. Caughanour (Oreg.), 
 33; McKinney v. Smith, 21 Cal. 374: 54 Pac. Rep. 223 [1898], defining uses' 
 Nevada Wate'r Co. v. Powell, 34 Cal. under a grant. 
 
 109; Higgins v. Barker, 42 Cal. 233; 6 Lux v. Haggin, 69 Cal. 255, 396. 
 
 Brown v. Mullin, 65 Cal. 89; Junkans v. 7 Lux v. Haggin, supra; Van Hoeson 
 
 Bergin, 67 Cal. 267; Lobdell v. Simpson, v. Coventry (N. Y.), 10 Barb. 518. 
 
 2 Nev. 274; Proctor v. Jennings, 6 Nev. 8 Bear Riv. W. Co. v. N. Y. Mg. Co.,. 
 
 83; Barnes v. Sabron, 10 Nev. 217; Strait 8 Cal. 327. 
 
 * But see Sees. 201-229 and 217, infra. 
 
75- OPERATIONS PRELIMINARY TO CONSTRUCTION. 56 
 
 In California the rule that governs the rights of several miners located on 
 the same stream is that each is entitled to use in a proper and reasonable 
 manner both the channel of the stream and the water flowing therein ; and 
 where, from the situation of the claims, the natural and necessary consequence 
 of the working of some claims will result in injury to others, the latter must 
 endure it, for it will furnish no cause of action to the party injured. 1 In 
 California 2 and Utah 3 the appropriation of water for mining purposes is open 
 to all persons. The legislature may not enact laws that will permit an 
 irrigating company to control the waters of any part of the territory in 
 disregard of the rights of individual claimants. 4 
 
 However, the superior right of miners to waters depends upon priority of 
 appropriation ; and the waters of a stream must be taken and used in such a 
 manner as not to interfere with or injure the property rights of others pre- 
 viously acquired. 5 The rights to work mines and to divert the water from 
 natural channels stand upon an equal footing, and when they conflict they 
 will be decided by the priorities. 6 If both rights can be enjoyed without 
 interference with or material impairment of each other, the enjoyment of both 
 will be allowed. 7 
 
 Extent of Use. An appropriation of all the water of a stream means all 
 the water as it ordinarily flows. Another person may take the surplus in 
 times of high water and freshets. 8 An appropriation for a beneficial use is an 
 appropriation of all the tributaries thereof above the point of original diver- 
 sion. 9 If a person or company be entitled to all the waters of a stream, he 
 may enlarge the capacity of his ditch without considering other ditch-owners. 10 
 
 By the erection of a dam across a natural waterway there is an actual 
 appropriation of the waters of the stream down to that point, but no farther. 
 What water flows over or through the dam any one may appropriate. 11 If the 
 dam and ditch are sufficient for the purposes for which the appropriation was 
 made in the natural condition of the stream as it then existed, the owner 
 may not afterwards raise his dam higher to obviate obstructions to its use 
 created by physical changes in the stream, whether natural or artificial, if 
 such action would work injury to subsequent appropriators who were not 
 responsible for the changes in the stream. 12 
 
 In determining the quantity of water appropriated, it is proper to consider 
 the acts of the person or company, the manner in which the ditch was con- 
 
 1 Esmond v. Chew, 15 Cal. 137. v. Willett, 35 Cal. 534. 
 
 2 Bear Riv. W. Co. v. N. Y. Mg. Co., 8 Edgar v. Stevenson, 70 Cal. 286. 
 
 8 Cal. 327. 9 Low v. Schaffer (Oreg.), 33 Pac. Rep. 
 
 3 Monroe v. Ivie, 2 Utah 535. 678. 
 
 4 Monroe v. Ivie, 2 Utah 535. lo James v. Williams, 31 Cal. 211. 
 
 5 Wixon v. Bear River, etc., Co., 24 n Kelly v. Natoma W. Co. ,6 Cal. 105. 
 Cal. 367; Hill v. Smith, 27 Cal. 476; Le- But see Natoma W. & Min. Co. v. Han- 
 varoni v. Miller, 34 Cal. 231; Logan v. cock (Cal.), 35 Pac. Rep. 334. 
 Driscoll, 19 Cal. 623. 12 Nevada Water Co. v. Powell, 34 Cal. 
 
 6 Irwin v. Phillips, 5 Cal. 140. 109. 
 
 7 Jennison v. Kirk, 98 U. S. 453; Clark 
 
57 WATERS -FOR IRRIGATION IN ARID COUNTRIES. 75- 
 
 structed, the general size, etc. The quantity is not limited to the amount 
 first turned into the ditch, unless, by the general pla/i, size, and grade of the 
 ditch, it was not capable of carrying more than was first diverted. If 
 obstructions or irregularities in the grade of the ditch diminished the amount 
 that its general size would indicate, the appropriator will be allowed a 
 reasonable time to remove such obstructions or change the grade, and to then 
 fill the ditch. 1 
 
 The quantity appropriated is to be measured by the carrying capacity of 
 the ditch or flume at its smallest point, where least water will pass through. 2 
 The capacity of a ditch, making due allowance for evaporation, seepage, etc., 
 is the amount of water that it will carry from the point of diversion to the 
 point of use. 3 
 
 The grantee of a fixed supply of water is not required to reduce the 
 quantity to which he is entitled by the grant, because modern appliances give 
 equal efficiency of power to a smaller volume of water. 4 
 
 Measurement of Water. The measurement of a ditch to determine its 
 carrying capacity, though ordinarily a question for engineers, has been made 
 the subject of judicial determination. It has even been held not a question 
 to be determined by an expert witness. 5 
 
 Water in arid countries is usually measured by the inch (" miner's inch " 
 or " water-inch "), which is that quantity of water that will flow during twenty- 
 four hours through a circular opening one inch in diameter just below the 
 surface of the water. It is about 500 cubic feet. The words " inch of water " 
 have been held not to have acquired such an arbitrary meaning that will 
 control when used in a grant. Evidence of the surrounding circumstances 
 may be considered. 6 
 
 A grant of so much water " out of a pond as would pass through a hole 
 10 inches square " was held not to call for any head of water. 7 A convey- 
 ance of the right " to tap a raceway at a certain point, and to build a race to 
 a mill, and to use from the raceway " a certain number of inches of water for 
 the purpose of running a mill was held to be a grant of a. certain quantity of 
 water to be measured at the grantor's raceway, and not of power to be 
 measured at the mill. 8 A grant of so much water as can be pumped by a 
 certain horse-power, 9 " except sufficient to operate the mills, which is limited 
 
 1 Whiie v. Todds Valley W. Co., 8 Cal. Cot. M. v. Ford (Wis.), 52 N. W. Rep. 
 443. 764. See Barrows v. Fox (Cal.), 32 Pac. 
 
 2 Higgins v. Barker, 42 Cal. 233; At- Rep. 8n. and Marshall v. Hershey 
 chison v. Peterson, 20 Wall. 507; Ophir (Pa.), 39 Atl. Rep. 887 [1898], and Gray 
 Mining Co. v. Carpenter, 6 Nev. 393; v. Saco W.-P. Co., 85 Me. 526. 
 Caruthers v. Pemberton, I Mont. in. 7 Gray v. Saco W.-P. Co., 85 Me. 526. 
 
 3 Union Mill & Mining Co. v. Dang- But see Forrest Mill. Co. v. Cedar Falls 
 berg (C. C.), 81 Fed. Rep. 73. M. Co. (la.), 72 N. W. Rep. 1076. 
 
 4 Hartwell v. Mutual L. I. Co. (N. Y.), 8 Palmer v. Angel (Sup.), 23 N. Y. 
 50 Hun 497 [1888]. Supp. 397. 
 
 5 Frey v. Lowden, 70 Cal. 550. 9 City Power Co. v. Fergus F. W. Co. 
 
 6 Jackson Milling Co. v. Chandos (Minn.), 56 N. W. Rep. 685. 
 (Wis.), 52 N. W. Rep. 759; Janesville 
 
75- OPERATIONS PRELIMINARY TO CONSTRUCTION. $8 
 
 to ioo horse-power," was held to reserve only so much as was required, not 
 exceeding ioo horse-power. 1 
 
 The following rule has been approved as supported by expert evidence, and 
 as justifying its adoption in measuring the flow of water: " Multiply the 
 square root of the number of feet in the head by 8.025, an< 3 multiply this 
 result by the square feet of the area of the discharge, and the result is the 
 cubic feet of discharge per second." Engineers will recognize in this rule 
 the familiar formula of discharge: vol. = V 2gh . A. In this same case it was 
 held that a rule to determine the head by measuring from the crest of a dam 
 to the middle of the tub-wheel the center of the discharge from the spouts 
 being several inches higher was not justified by the weight of expert evidence 
 and authority introduced, but that the nature of the case required the 
 measure to be taken from the center of the orifice of discharge ; and the court 
 was also strongly inclined, for the same reason, to the opinion that the area of 
 the orifice of discharge should be reduced by some coefficient of contraction. * 
 The grant of a water privilege to an owner of a sawmill made an exception 
 or reservation as follows: " Except, in times of low water, when it is wanted 
 for the carding of cloth, dressing, and grist-mill." The grantee has no right 
 to use the water when it is wanted for the purpose named in the exception. 
 If he use the water when it is wanted for the purpose named, he will be liable 
 for the damages occasioned by such use. The land may be conveyed and 
 all water rights reserved to the grantor, or the use of all or a part of 
 the water of the stream may be granted as a mere hereditament of the fee of 
 the land retained. This is true notwithstanding that one cannot convey the 
 water separate from the land. The reservation of water in a deed will 
 ordinarily be construed as a reservation of a measure of the water, and not for 
 a mere use. A change in the site of the mill by a mill-owner has been held 
 not to change his rights to take as much water as before. 3 
 
 The findings of a referee or court should state the quantity of water the 
 plaintiff is entitled to have flow past the defendant's ditch in inches or 
 gallons, and not merely by fixing the width, depth, and grade of the ditch. 4 
 A decree enjoining an appropriator of water against diverting from -a stream 
 any greater quantity of water than will flow through an iron pipe, of a certain 
 size, which is found to be the amount required by him, is erroneous where 
 the water is conducted in an open ditch or flume; as in such case the amount 
 which reaches the place of use is not the same as that diverted, and the 
 appropriator is entitled to such an amount, allowing for waste, as will yield 
 the amount required at the place of use, and he is not obliged to substitute 
 iron pipes. 5 
 
 1 Moore v. Wilder (Vt.), 28 Atl. Rep. * Settlers' Ditch Co. v. Hayes (Cal.), 
 320. 22 Pac. Rep. 1152. 
 
 2 Hartwell v. Mutual L. I. Co., 50 Hun 5 Barrows v. Fox (Cal.), 32 Pac. Rep. 
 497 [1888]. 811. 
 
 3 Root v. Johnson, 26 Vt. 64 [1853]. 
 
59 WATERS FOR IRRIGATION IN ARID COUNTRIES. 75 
 
 Where there was no mill or penstock on the premises at the time a deed 
 was executed granting a right to the quantity of water which would pass 
 through a given aperture under 15 feet head, it will be inferred that the 
 parties meant that the 1 5 feet head should be measured with the water at rest 
 at the bulkhead. 1 
 
 The grantee of a right to take from a bulkhead and flume ' ' the quantity 
 of water which shall be discharged therefrom through an aperture of 200 
 square inches at the gate under 1 5 feet head ' ' is entitled to a constant power 
 equivalent to a stream of water discharged through such an aperture with such 
 a head. 1 
 
 Point of Diversion or Use. The point of diversion of the water to which 
 an appropriator is entitled may be changed so long as the quantity taken is 
 the same and the rights of others are not injuriously affected by the change, 8 
 but it cannot be changed if the rights of other appropriators are invaded. 3 
 The first appropriator cannot, to the detriment of subsequent appropriators, 
 change the method by which he conveys water to his land, so as to increase 
 the waste that naturally occurs in such conveyances. 4 
 
 The right to change the point of diversion does not depend upon whether 
 it was acquired by express grant or by prescription. Whether such right rests 
 in the parole license or the presumed consent of the proprietor, he may 
 change the point of diversion at pleasure if the rights of others are not 
 injuriously affected by the change. The manner in which a right was secured 
 relates to the mode of determining the existence and extent of a right, and not 
 to the manner of its exercise and enjoyment. 5 
 
 It has likewise been held that the point or place of application to the 
 beneficial use designed or to the particular use to which it was first applied 
 does not in any way affect the right acquired by prior appropriation. 6 
 
 A natural watercourse may be utilized to conduct water that has been 
 appropriated, and when a person or company avails himself (itself) of such 
 stream to convey the water appropriated to the place where it is to be used 
 or recaptured, he (it) does not abandon the water or lose acquired rights 
 therein, but may divert the same quantity wherever he (it) desires to use it. 7 
 
 1 Cummings v. Blanchard (N. H.), 36 i Mont. 296; Gassert v. Noyes (Mont.), 
 All. Rep. 556. 44 Pac. Rep. 959. And see Wimer v. 
 
 2 Union M. & M. Co. v. Dangberg Simmons (Oreg.), 39 Pac. Rep. 6. 
 
 (C. C.), 8 1 Fed. Rep. 73; McGuire v. * Roeder v. Stein (Nev.), 42 Pac. Rep. 
 
 Brown (Cal.), 39 Pac. Rep. 1060; Kidd v. 867. 
 
 Laird, 15 Cal. 151; Butte Table Mg. Co. 5 Kidd v. Laird, 15 Cal. 161. 
 
 v. Morgan, 19 Cal. 609; Junkans v. Ber- 6 Atchison v. Peterson, 20 Wall. 507; 
 
 gin, 67 Cal. 267; Sieber v'. Frink, 7 Colo. Maeris v. Bicknell, 5 Cal. 261; McDon- 
 
 148; Hobart v. Wicks, 15 Nev. 418; Santa aid v. B. R. & A. W. & Mg. Co., 13 Cal. 
 
 Paula Waterworks v. Peralta (Cal.), 45 220; Davis v. Gale, 32 Cal. 26; Coffin 
 
 Pac. Rep. 168; San Luis W. Co. v. Es- v. Left-Hand Ditch Co., 6 Colo. 443; 
 
 trada (Cal.), 48 Pac. Rep. 1075. Thomas v. Guiraud, 6 Colo. 530; Wool- 
 
 3 Butle Table Mg. Co. v. Morgan, 19 man v. Garringer, I Mont. 535. 
 
 Cal. 609; Nevada Water Co. v. Powell, 7 Hoffman v. Stone, 7 Cal. 46; Butte 
 
 34 Cal. 109; Columbia Mg. Co. v. Holler, Canal & D. Co. v. Vaughn, n Cal. 143; 
 
OPERATIONS PRELIMINARY TO CONSTRUCTION. 60 
 
 In reclaiming his (its) water, care must be taken not to diminish the quantity 
 to which prior locators or appropriators are entitled. 1 The burden is upon 
 him (it) to show that he (it) has not taken more water from the stream than 
 he (it) turned into it. 2 
 
 In California and Colorado depressions or ravines on the public lands 
 which include the bed of a stream may be utilized as reservoirs for storing 
 waters by a person, but he must see to it that no legal rights of prior appro- 
 priators or other persons are in any way interfered with by his acts. 3 The 
 owner of land has no right to construct a reservoir for the storage of water to 
 be disposed of for irrigation purposes unless he appropriates the water in 
 accordance with the provisions of the constitution and the statutes. 4 
 
 It has been held, however, that an irrigation company cannot lawfully 
 conduct seepage or surplus water from lands irrigated by it, through drains 
 and lakes, into a canal from which others have a right to take water for 
 irrigation and domestic purposes, to their injury. The owners of higher 
 irrigated lands are not entitled to the benefit of the natural flow of seepage 
 water therefrom onto lower lands owned by others. 5 
 
 When a natural watercourse, as a ravine, is utilized as part of a ditch, the 
 one diverting the water into the watercourse is liable for injuries to lands 
 resulting from an overflow caused by his failure to have it properly cleared 
 from obstruction, or by reason of his turning into it a quantity of water 
 which, added to the natural waters flowing in it, exceeded its carrying 
 capacity. 6 
 
 76. Abandonment of Irrigation Eights, When the waters of a stream 
 have left the possession of a party, all his right to, and interest in, them are 
 gone. 7 If, after using the water, he allows it to return to the stream without 
 the intention of using it again, the water becomes a part of the stream and is 
 subject to appropriation by another. 8 Even though he be a prior appropriator 
 he cannot claim water after it has been abandoned by him and appropriated 
 by another. 9 Waste waters which are returned to the main stream or its 
 tributaries become a part of the waters of the main stream and tributaries, as 
 though never diverted, and inure to the benefit of the appropriators, in the 
 order of their appropriations. 10 After abandonment a prior right cannot, by 
 
 Davis v. Gale, 32 Cal. 26; Ellis v. Tone, 5 North Point C. Irr. Co. v. Utah & S. 
 
 58 Cal. 289; Schulz v. Sweeny, 19 Nev. L. Canal Co. (Utah), 52 Pac. Rep. 168 
 
 359. See Gassert v. Noyes (Mont.), 44 [1898]. But see Austin v. Chandler 
 
 Pac. Rep. 959. (Ariz.;, 42 Pac. Rep. 483. 
 
 1 Butte Canal & D. Co. v. Vaughn, II 6 Richardson v. Kier, 34 Cal. 63, 263. 
 Cal. 143; Burnett v. Whitesides, 15 Cal. 7 Eddy v. Simpson, 3 Cal. 249. 
 
 35; Wilcox v. Hausch, 64 Cal. 461. 8 Schulz v. Sweeny, 19 Nev. 359; Smith 
 
 2 Butte Canal & D. Co. v. Vaughn, n v. Green (Cal.), 41 Pac. Rep. 1022; Wool- 
 Cal. 143; Wilcox v. Hausch, 64 Cal. 461. man v. Garringer, I Mont. 535. 
 
 3 Larimer Co. R. Co. v. People ex rel., 9 Eddy v. Simpson, 3 Cal. 249; Barkley 
 8 Colo. 614. v. Tieleke, 2 Mont. 59. 
 
 4 Beaver Brook Res. & C. Co. v. St. 10 Water Sup. & Stor. Co. v. Larimer & 
 Vrain Res. & F. Co. (Colo. App.), 40 Pac. W. Res. Co., 53 Pac. Rep. 386. 
 
 Rep. 1066. 
 
6l WATERS FOR IRRIGATION IN ARID COUNTRIES. 76. 
 
 making a sale of the same, be revived in favor of a grantee, even if the same 
 is made in good faith. 1 
 
 An attempt to convey a water right by an imperfect conveyance, while it 
 may not operate as an absolute transfer, does clearly operate as an abandon- 
 ment by the grantor of his right acquired by appropriation, and the right of 
 the buyer relates to the date of his taking possession as an original appropria- 
 tion by him. 2 
 
 A failure to use water for a time is competent evidence on the question 
 of abandonment. If nonuse be continued for an unreasonable period, it may 
 fairly create 'a presumption of indention to abandon. This presumption is 
 not conclusive and may be overcome by other satisfactory proofs. 3 The 
 rights of a prior appropriator may be lost by his acquiescence in an adverse 
 use by another during the period fixed by the statute of limitations. 4 
 
 The facts that water was appropriated for a particular purpose, that the 
 purpose has been fully accomplished, and that when accomplished the appro- 
 priators dispersed and allowed a long time to elapse without using the ditch 
 and then sold it for a nominal sum, may be received in evidence as tending 
 to shown an abandonment. 5 Evidence of nonuser of a water-ditch and right 
 to appropriate water for three years was held not to show an abandonment 
 where the owners testified that they did not intend to abandon their right, 
 and it appeared that one of them, during the nonuser, purchased the other's 
 interest. 6 An appropriator who for many years makes no use of the water, 
 allows his ditch to become obliterated, and interposes no objections to the 
 diversion of the water by a subsequent appropriator, will be presumed to- 
 have abandoned his right of priority. 7 
 
 On an issue as to whether defendant manifested an intention to abandon 
 a water appropriation, the evidence showed that defendant faithfully prose- 
 cuted improvements on his land, adding each year to the area in cultivation, 
 and provided for the irrigation thereof from other and more convenient 
 sources, but that he did not put the water in controversy to use until seven 
 years after it was first appropriated. It was held that defendant's intention to 
 abandon had not been established. 8 
 
 The burden of proof is on the party claiming an abandonment of a water 
 right. 9 
 
 When water has been appropriated and used for one purpose, as mining 
 
 1 Davis v. Gale, 32 Cal. 26. 5 Davis v. Gale, 32 Cal. 26. 
 
 2 Barkley v. Tieleke, 2 Mont. 59; Nich- 6 Gassert v. Noyes (Mont.), 44 Pac. 
 ols v. Lantz (Colo. App.), 47 Pac. Rep. 70. Rep. 959. 
 
 3 Davis v. Gale, 32 Cal. 26; Wimer v. 7 Dorr v. Hammond, 7 Colo. 79; Low 
 Simmons (Oreg.), 39 Pac. Rep. 6; Sieber v. Rizor (Oreg.), 37 Pac. Rep. 82 (thir- 
 v. Frink, 7 Colo. 148; Tucker v. Jones teen years). 
 
 (Mont.), 19 Pac. Rep. 571 [1889]. 8 Moss v. Rose (Or.), 41 Pac. Rep. 666. 
 
 * Union Water Co. v. Crary, 25 Cal. 9 Beaver Brook Res. & C. Co. v. St. 
 
 504; Davis v. Gale, 32 Cal. 26; Smith v. Vrain Res. & Fish Co. (Colo. App.), 40 
 
 Logan, 18 Nev. 149. But see Wimer v. Pac. Rep. 1066. 
 Simmons (Oreg.), 39 Pac. Rep. 6. 
 
77- OPERATIONS PRELIMINARY TO CONSTRUCTION. 62 
 
 operations, it seems it does not become public property unless it has been 
 turned back into its original channel without any intention of recapture. 
 One who has used it as it flowed from the mine does not, it seems, acquire 
 any rights in the wasted water unless it has been abandoned. 1 
 
 One of several original appropriators (tenants in common) may recapture 
 water that was abandoned and use it for irrigating his own fields or other 
 lawful purposes. 2 
 
 77. Nature of Irrigation Rights. An irrigating-ditch and the water right 
 appurtenant thereto are real property, 3 but courts of equity have expressed 
 some doubt as to whether they would go so far to protect such property as 
 they do to protect land held and cherished for itself. 4 
 
 A water right acquired by a user of water under a contract with an irriga- 
 tion company, being an easement in the ditch, is an incorporeal hereditament 
 -descendible by inheritance to the owner's heirs, and constitutes a freehold 
 estate. 5 
 
 An appropriator of water, so long as it continues to flow in its natural 
 course, acquires no specific property in the water itself. His rights, like those 
 of a riparian owner, are strictly usufructuary, i.e., an enjoyment of the profit 
 .and advantage of a thing which belongs to another, like a tenant. 6 
 
 The water itself is not personal property, but a part of the realty; and 
 although an appropriator be entitled to the flow of the water undiminished at 
 the head of his ditch, he cannot maintain an action for the value of the water, 
 .as for personal property sold and delivered, against one who has wrongfully 
 -diverted the waters of said stream. 7 The right to running water may exist 
 without private ownership of the soil, as when acquired by prior appropria- 
 tion. That right must be treated as a right running with land, and as a cor- 
 poreal privilege bestowed upon the occupier or appropriator of the soil. As 
 such it has none of the characteristics of personalty. 8 
 
 When water has been collected and stored in a pond or reservoir, the one 
 who built the reservoir acquires a vested right of property in the reservoir and 
 water, of which he cannot be divested for mining or other private purposes, 
 and a court of equity will enjoin miners from injuring the reservoir or divert- 
 ing the water therefrom. 9 It is only when water has been separated from the 
 
 1 Woolman v. Garringer, I Mont. 535. 4 Clark v. Willett, 35 Cal. 534. 
 
 See Davis v. Gale, 32 Cal. 26. But see 5 Wyatt v. Larimer & Weld Irrigation 
 
 McDonald r. Bear Riv., etc., Co., 13 Co. (Colo. Sup.), 33 Pac. Rep. 144. 
 
 Cal. 220, and Last Chance Min. Co. v. 6 Eddy v. Simpson, 3 Cal. 243; Kidd v. 
 
 Bunker Hill Co. (C. C. Idaho), 49 Fed. Laird, 15 Cal. 161; McDonald v. Askew, 
 
 Rep. 430. 29 Cal. 200; Alder G. C. Mg. Co. v. 
 
 2 Meagher v. Hardenbrook (Mont.), 28 Hayes, 6 Mont. 31. 
 
 Pac. Rep. 451. 7 Parks C. & M. Co. v. Hoyt, 57 Cal. 44. 
 
 3 Hill v. Newman, 5 Cal. 445; Lower 8 Hill v. Newman, 5 Cal. 445. 
 
 Kings D. Co. v. L. K. R. & F. C. Co., 60 9 Rupley v. Welch, 23 Cal. 452; Jacob 
 
 Cal. 408; Dodge v. Marten, 7 Oreg. 456. v. Lorenz (Cal.), 33 Pac. Rep. 119. See 
 
 But see Tynon v. Despain (Colo. Sup.), Butte Table M. Co. v. Morgan, 19 Cal. 
 
 43 Pac. Rep. 1039. 609. 
 
63 WATERS FOR IRRIGATION IN ARID COUNTRIES. ?/. 
 
 original or natural source of supply and has been collected in reservoirs, 
 pipes, or conduits that it becomes personal property. It is then as much the 
 subject of sale as ordinary goods and merchandise. 1 
 
 When several persons separately appropriate the waters of a stream and 
 are severally using the same under certain regulations, as to the time and 
 manner of such use, they are tenants in common, and each of them may 
 maintain an action to enjoin a trespasser from diverting any portion of the 
 water thus appropriated. 2 
 
 Owners of land along a stream associated under the irrigation laws, as a 
 water company, become tenants in common of the water of the stream, and 
 each landowner in the district is entitled to his share on paying his propor- 
 tion of the expense. 3 As tenants in common, one joint owner cannot hold 
 adversely to the others without expressly repudiating their rights. 4 
 
 Transfer of Wafer Rights. The right to water being a species of realty, it 
 requires for its transfer the same form and solemnity as is required for the 
 conveyance of any other real estate. 5 The right to the use of a watercourse 
 in the public mineral lands, and the right to divert and use the water taken 
 therefrom acquired by appropriation, may be held, granted,- abandoned, or lost 
 by the same means as a right of the same character issuing out of lands to 
 which a private title exists. 6 
 
 A sale of a water right separate from the land, whereby the water is applied 
 to other lands, may be made if the rights of others are not infringed. 7 . 
 
 Irrigaiion Rights Appurtenant to Land. A right which secures to the 
 owner of a tract of land water for irrigating or other purposes necessary to the 
 beneficial enjoyment of the land becomes appurtenant to said land and passes 
 by a conveyance of the land. 8 
 
 Under the Civil Code of California, which provides that "a thing is 
 deemed to be incidental or appurtenant to land when it is by right used with 
 the land for its benefit, as in the case of a way or watercourse, or of a passage 
 for light, air, or heat from or across the land of another," it was held that 
 when a landowner appropriated water and brought it on his land, and the 
 land could not be advantageously used without the water, the fact that the 
 license to convey the water over the premises of another was revocable did 
 not prevent the water right from passing as appurtenant to the land. 9 
 
 1 Heyneman v. Blake, 19 Cal. 579. 6 Union Water Co. v. Crary, 25 Cal. 504. 
 
 2 Lyttle Creek W. Co. v. Perdew, 65 'Cache La Poudre Irr. Co. v. Larimer 
 Cal. 447. & Weld Reservoir Co. (Colo.), 53 Pac. 
 
 3 Smith v. North Canyon Water Co. Rep. 318 [1898]. 
 
 (Utah), 52 Pac. Rep. 283 [1898]. 8 Cave v. Crafts, 53 Cal. 135; Farmer 
 
 4 Moss v. Rose (Oreg.), 41 Pac. Rep. v. Ukiah W. Co., 56 Cal. u; Standart v. 
 
 666. Round Val. W. Co., 77 Cal. 399. But see 
 
 5 Barkley v. Tieleke,2 Mont. 59; Smith Strickler v. Colorado Springs, 16 Colo. 
 
 v. O'Hara, 43 Cal. 371. And see Me- 61; Bloom v. West (Colo. App.), 32 Pac. 
 
 Donald v. B. R. , etc., Co., 13 Cal. 220; Rep. 846. 
 
 Union Water Co. v. Crary, 25 Cal. 504; 9 Crocker v. Benton (Cal.), 28 Pac. 
 
 Dalton v.- Bowker, 8 Nev.'igo. Rep. 953. 
 
77- OPERATIONS PRELIMINARY TO CONSTRUCTION. 64 
 
 I 
 
 The right to the use of water for the irrigation of land, together with the 
 ditch making such right available, was held to become so attached to the 
 land, as part and parcel thereof, as to pass by a conveyance of the land with- 
 out mentioning the water right, and to be subject to the liens and liabilities 
 which attach to the land, and entitled to the same exemptions as the land. 1 
 
 If the water right be appurtenant to land, it will pass with a grant of the 
 land without mention being made thereof, and even though the grantor is not 
 aware of the existence of the right. 2 A transfer by parole of a settler's right 
 of entry of lands carries with it a water right appurtenant thereto, entitling 
 the transferee to the benefits of the priority of the appropriation. a 
 
 A public use of water from a public stream by the government does not 
 become appurtenant to the soil, so as to pass with it in a grant to private 
 individuals; but such use is thereby abandoned, unless a like use is, by 
 special and competent stipulations, passed to the grantee. One who derives 
 title through a patent from the government, " subject to any vested and 
 accrued water rights," is estopped from claiming as an appurtenance an 
 appropriation of water from a public stream which had been used by the 
 government, as against any persons who acquired rights, as appropriators, 
 prior to the issuance of the patent. 4 . - 
 
 Where a water right has been acquired by means of a ditch used in carry- 
 ing it, a conveyance of the ditch is a conveyance of the water right. 5 A right 
 acquired by appropriation for the purpose of operating a mill on the stream 
 passes by the transfer of the mill property. 6 This is not true, however, if the 
 water rights be not the property of the grantor. 7 The converse is not true, 
 for it has been held that the conveyance of the right to use the water of a river 
 between certain points did not convey the land of a mill-site on the river;* 
 and when one has built a mill upon a stream and appropriated the water- 
 power at that point, he does not by the conveyance of the water at a point 
 above his mill lose his prior right over one who has claimed the water below 
 the mill for mining purposes. 9 The purchase by a mining company of a water- 
 ditch and rights appertaining thereto was held not to make the ditch and 
 water rights appurtenant to the mining claim. 10 
 
 The rights to water of a trespasser do not become appurtenant to land 
 which he occupies, and do not pass to a purchaser of the land from its true 
 owner. 11 For a person to succeed in an action of ejectment he must show 
 that he is entitled to possession of the premises, but he is not required to 
 
 1 Franks. Hicks (Wyo.), 35 Pac. Rep. 6 McDonald v. B. R., etc., Co., 13 Cal. 
 475- 220. 
 
 2 Turner v. Cole, 49 Pac. Rep. 971. 7 Ginocchio v. Amador C. & M. Co., 67 
 
 3 McDonald v. Lannen (Mont.), 47 Pac. Cal. 493. 
 
 Rep. 648. 8 Robinson v. Imp. S. Mg. Co., 5 Nev. 
 
 4 Nevada Ditch Co. v. Bennett (Oreg.), 44. 
 
 45 Pac. Rep. 472. 9 McDonald v. Askew, 29 Cal. 200. 
 
 5 Williams v. Harter (Cal.), 53 Pac. 10 Quirk v. Falk, 47 Cal. 453. 
 Rep. 405 [1898]. "Smith v. Logan, 18 Nev. 149. 
 
65 WATERS FOR IRRIGATION IN ARID COUNTRIES. 77 
 
 show that he is entitled to the enjoyment of a stream of water running through 
 his land, or that he was damaged by the diversion of its waters. l 
 
 Right of Way for Irrigation Canal or Ditch. Under an act of Congress 
 July 26, 1866, an appropriate! of water from a natural stream has a right to 
 construct a ditch across public lands of the United States, subject only to the 
 liability of paying for any damage to the possession of a settler on the land. 2 
 This act operated as a grant of such rights of way, and of such ditches through 
 which the water was running at the date thereof, as had been constructed over 
 public lands prior to July 26, 1866, and in which rights had been acquired 
 and recognized by the local customs, laws, and decisions of the courts. 3 
 
 An appropriator, as against subsequent purchasers from the United States, 
 has the right to go upon the land of such purchasers higher up the stream 
 than the point of diversion of the water, and remove obstructions in the bed 
 of the stream so as to cause its waters to flow in their natural channel to the 
 point of diversion. 4 
 
 The grant of the right of way for a ditch over a tract of land is an ease- 
 ment only, and not a grant of the land or the water flowing over it. When an 
 easement is granted, nothing passes as an incident to such grant but what is 
 necessary for its reasonable and proper enjoyment. 5 However, in California 
 it has been held that a deed which conveys the right of way for an existing 
 ditch is in effect a conveyance of the ditch itself. 6 In Colorado all lands are 
 held to be subordinate to the dominant right of others who must necessarily 
 pass over. them to obtain the supply of water to irrigate their lands. It is 
 not, therefore, necessary that there should be a conveyance in writing to 
 establish an easement for right of way for an irrigating-ditch. 7 
 
 A grant of the right to all water in a stream^ and of the right to enter on 
 the land of the grantor and construct and maintain all dams, ditches, pipes, 
 or flumes necessary and proper for conveying such water over said land to 
 the place of its use, vests in the grantee the right to convey said water at 
 different times and places, or change or enlarge his ditch, and to use it in the 
 manner he pleases if the grantor is not injured by such use. 8 
 
 Public land is appropriated by one character of act, and water by another. 
 The digging of a ditch on public land is not an appropriation of land for a 
 mill-site nor a dam-site, nor is the mere appropriation of a mill-site an 
 appropriation of water for milling purposes. 9 
 
 1 Dilley v. Sherman, 2 Nev. 67. 6 Reed v. Spicer, 27 Cal. 57. 
 
 2 Hobart v. Ford, 6 Nev. 77; Shoe- 7 Yunkerz'. Nichols, i Colo. 551. 
 maker v. Hatch, 13 Nev. 261. 8 Spear v. Cook, 8 Oreg. 380; Conger 
 
 3 Broder v. Natoma W. Co., 50 Cal. v. Weaver, 6 Cal. 548. 
 
 621, and 101 U. S. 274. 9 Robinson v. Imperial Silrer Mg. Co., 
 
 4 Ware v. Walker, 70 Cal. 591. 5 Nev. 44. 
 
 5 Miller v. Vaughn, 8 Oreg. 333. 
 
CHAPTER VII. 
 
 DETENTION OF WATERS OF STREAMS. MILLS AND MILL 
 
 RIGHTS. 
 
 81. The Detention and Obstruction of Streams. A riparian owner may 
 detain the waters of a stream to a reasonable extent; but if the use which 
 he exercises be not a reasonable use, he is guilty of a nuisance to any other 
 riparian owner who is injured thereby. 1 An excessive diversion of water for 
 any purpose cannot be regarded as a diversion to a beneficial use. 2 The 
 reasonableness of the use to which a riparian owner is entitled is a question 
 of fact to be determined by the jury, and will depend upon the capacity of 
 the stream, the number of people entitled to its use, the adaptation of the 
 machinery, and all attending circumstances. 3 
 
 All the attending and conflicting interests and uses of households, mills, 
 and other manufacturing and industrial purposes may be considered. It has 
 been held that water might be detained twice a year for six days at a time in 
 order to flood cranberry-meadows, even though such detention affected the 
 operations of a grist-mill. 4 
 
 82. The Use Must Be Beneficial and Reasonable. If water in its natural 
 state be useful both for domestic uses and for watering stock, and the latter 
 use is more valuable or beneficial for all the owners along the stream than for 
 domestic purposes, then the less valuable must yield to the more valuable 
 use, but its reasonable use for all purposes should be preferred if possible. 5 
 The use of water for the operation of a mill has been held to be superior to 
 the water-supply of a railroad company. 6 It has been held that there is. no 
 superiority of rights acquired in the water of a stream for the purpose of 
 irrigating arable land over rights acquired therein for mining or milling 
 purposes. 7 
 
 1 28 Amer. & Eng. Ency. Law 955, and 4 Hinchley v. Nickerson, 117 Mass. 
 cases cited; Mason v. Hoyle, 56 Conn. 213; Hetrich v. Deachler, 6 Pa. St. 32. 
 255 [1888]. And see Denison Paper Co. v. Robinson 
 
 2 Union Mill & Min. Co. v. Dang- Mfg. Co., 74 Me. 116, as to the uses of 
 berg (C. C. D. Nev.), 81 Fed. Rep. 73, water by a mill during drought. 
 
 citing Combs v. Agricultural Ditch Co., 5 Hazeltine v. Case, 46 Wis. 391. 
 
 17 Colo. 146; Ferrea v. Knipe, 28 Cal. 6 Louisville & N. R. Co. v, Beauchamp 
 
 340; Gibson v. Puchta, 33 Cal. 310; __ (Ky.), 40 S. W. Rep. 679. 
 
 Shotwell v. Dodga, 8 Wash. 337. 7 Union Mill & Mining Co. v. Dang- 
 
 3 Mason v. Hoyle, 56 Conn. 255 [1888]. berg (C. C.), 81 Fed. Rep. 73. 
 
 66 
 
6/ DETENTION OF WATERS OF STREAMS. 83. 
 
 The fact that the party detaining the water has tapped or collected new 
 sources of supply, and that the lower owner is receiving more water than 
 theretofore, is not a justification of the detention of water. The justification 
 must be a reasonable use, and no one whose rights are injured by such a use 
 has a right of action without showing actual damage. 1 
 
 A wanton, vexatious, or unnecessary detention of waters will render the 
 owner liable in damages to those injured thereby, 2 but parties whose rights 
 are not affected cannot complain of the nuisance. 3 The fact that the lower 
 owner himself partially obstructs the stream will not prevent his recovery 
 against one who obstructs it to his injury. 4 
 
 83, Detention of Waters by Dams. Rights of a riparian owner to the 
 reasonable use of the water of a stream include the right to confine and 
 obstruct its flow by dams, in order to utilize its power, and to use it for 
 other purposes. He may hold the water for a reasonable length of time for 
 such use, even though it interfere with the rights of lower owners to a reason- 
 able use of the stream in its natural state. 5 The purpose for which the water 
 is collected must be one that is reasonably adapted to the stream in its normal 
 condition. The water may not be accumulated for any purpose, as the opera- 
 tion of machinery, which requires more than the usual flow. Waters may 
 be detained for the purpose of making a fish-pond, 6 or to make a pond from 
 which to harvest ice. 7 
 
 A landowner may detain the water of a stream passing through his land 
 long enough for the proper and profitable enjoyment of it. 8 It has been held 
 that a cotton-mill could shut off the water at night notwithstanding that it 
 was to the disadvantage of paper-mills below it, which required water day and 
 night. 9 The use of the water of a stream for power purposes is not a nuisance 
 if it does hot obstruct the flow of water above the proprietor's lands and he 
 restores the water to its natural course before it leaves his lands. 10 The 
 natural flow of water may be stopped until a mill-pond is full, it being kept 
 full thereafter, although a lower mill-owner may suffer an impairment of his 
 privilege. 1 
 
 A coffer-dam was held not a dam in the ordinary acceptation of the term, 
 
 1 Warez/. Allen, 140 Mass. 513. And see 8 Platt v. Johnson (N. Y.), 15 Johns. 
 
 Glassell v. Verdugo (Cal.), 41 Pac. Rep. 213. 
 
 403. 9 Bullard v. Saratoga Mfg. Co., 77 N. 
 
 2 28 Amer. & Eng. Ency. Law 957, and Y. 525; Louisville & N. R. Co. v. Beau- 
 
 cases cited. champ (Ky.), 40 S. W. Rep. 679. 
 
 3 Groat v. Moak, 26 Hun 380. 10 Ewing v. Colquhoun (Eng.), L. R. 2 
 
 4 Clarke v. French, 122 Mass. 419; App. Cas. 839; Green Bay Co. v. Kau- 
 
 Brown v. Dean, 123 Mass. 254. kauna W. P. Co. (Wis.), 61 N. W. Rep. 
 
 5 28 Amer. & Eng. Ency. Law 957. 1121. 
 
 6 Wood v. Edes, 2 Allen (Mass.) 580. n Gehlen v. Knorr (la.), 70 N. W. Rep. 
 7 Gehlen v. Knorr (la.), 70 N. W. Rep. 757; Caldwell v. Sanderson, 69 Wis. 62; 
 
 757; De Baum v. Bean (N. Y.), 29 Hun Sparlin v. Gotcher (Oreg.), 31 Pac. Rep. 
 
 236; New London W. Bd. v. Perry, 69 399. 
 Conn. 461. 
 
84. OPERATIONS PRELIMINARY TO CONSTRUCTION. 68 
 
 in a statute requiring claims for damages caused by overflow of water by the 
 erection of dams and other canal improvements to be made within a year. 1 
 
 84. Alternate Obstruction and Release of Waters. The use must be 
 adapted to the capacity of the stream. In determining its capacity, its con- 
 dition throughout the year is to be- considered. Where there is an ample 
 supply for nine months and a scarcity for three, this scarcity, if it occurs so 
 regularly that it can be anticipated, is to be treated as a fixed quantity in the 
 estimate, and as so far reducing the capacity of the stream. A reasonable use 
 must permit the water to flow in its accustomed way, so far as it can be done, 
 and a beneficial use, though a limited one, be made of the reduced stream. 
 The capacity of the reservoir of the upper mill does riot determine its right to 
 the detention of the water nor the capacity of the mill. It is for the public 
 interest that water-power be used so far as it can be, if the majority of mill- 
 owners are small ones. They should be protected against such a use of the 
 stream, by mills disproportioned to its capacity, as would practically deprive 
 them of water and ruin their privileges. 2 
 
 A reasonable use of waters entitles a landowner to release and discharge 
 the waters in order to employ them beneficially. He is not liable for injuries 
 necessarily caused to others in regard to the rise of the stream. 3 If the with- 
 drawal of the water deprives another from the use of waters to which he is 
 justly entitled, or needlessly deprives him of the beneficial use of the water, 
 or if it injures or destroys another's property, a case for damages arises. 4 A 
 mill-owner may not open his gates and let water run to waste when an owner 
 on the opposite side of the stream takes water from the same dam, and is 
 entitled to all the water not needed by the former. 5 A riparian owner may 
 not collect large quantities of water in the wet season and then draw it off 
 in summer so as to cause a flood, washing away banks and drowning the 
 land of other riparian owners. 6 It has been held that for such an act an 
 action for trespass vi et armis would lie. 7 
 
 The owner of a mill-dam may not complain because an upper riparian 
 owner uses the water so as to expose his dam to the sun, the operation of the 
 mill not being impeded. 8 The owner of a water-power right is not liable for 
 allowing the water to run through his wheel at night to prevent it from 
 becoming frozen. 9 
 
 The fact that a riparian owner who has a right to a certain number of 
 cubic feet of water per minute constantly wastes part of the water so pur- 
 chased does not entitle an upper owner, who took subject to the purchase, to 
 
 Peacock v. State (N. Y.), n N. E. N. H. 478. 
 
 Rep. 638 [1887]. 7 Kelly v. Lett (N. C.), 13 Ired. 50. 
 
 2 Mason v. Hoyle, 56 Conn. 255 [1888]. 8 Louisville & N. R. Co. v. Beauchamp 
 
 3 Drake v. Hamilton W. Co., 99 Mass. (Ky.), 40 S. W. Rep. 679. Cattle treading 
 574. and tramping a dam, see Keller v. 
 
 4 28 Amer. & Eng. Ency. Law 959. Fink (Cal.), 37 Pac. Rep. 411. 
 
 5 Fuller v. Daniels, 63 N. H. 395. 9 Cummings v. Blanchard (N. H.), 36 
 6 Gerrish v. Newmarket Mfg. Co., 30 All. Rep. 556. 
 
<?9 DETENTION OF WATERS OF STREAMS. 85. 
 
 withhold a part of the other's water equal to the amount which the other 
 wastes. l 
 
 One not injured by the maintenance of a dam by which a mill is operated 
 cannot, when sued by the mill-owner for obstructing the natural flow of the 
 stream to the mill, defend by setting up that the dam was constructed by 
 plaintiff without proper authority. 2 
 
 85. Backing Up and Overflow of Waters Dammed. In raising the level 
 of waters of a stream on one's land, he must be careful not to raise the natural 
 surface of the water on or against others' lands. If he do so, he is liable for 
 the injury, which is a question for the jury to decide, whether or not the 
 alleged obstruction caused the injuries. 3 If another's lands are overflowed by 
 a, backing up of the water and damages ensue, the one causing the injury is 
 liable for the damages thereof; but no action, it seems, lies unless some actual 
 injury is sustained. 4 If the dam be built so as to cause the overflowing of 
 another's land at an ordinary or expected freshet, the owner of the dam will 
 be liable for the injuries. 5 
 
 The ordinary stage of water has been held to include its stage or level in 
 such rises as are usual, ordinary, and reasonably to be expected, but not to 
 include such stages or levels in extraordinary freshets as could not reasonably 
 be anticipated at particular periods of the year. 6 Unusual freshets occurring 
 once in several years must be provided against. 7 
 
 The fact that water is set back, it seems, is not determined arbitrarily by 
 instrumental measurements, such as leveling. If the actual facts show a 
 turning back of the water upon an adjoining owner's land, the owner of the 
 dam may be liable, 8 even though field operations of leveling show more fall 
 on his land than he has height at his dam. 9 
 
 When land has been overflowing above a bridge, and the evidence showed 
 that below the bridge the water was caused to rise several feet by a dam, and 
 that above the bridge the water was two feet higher than below it, it was error 
 to rule that no recovery could be had on account of the dam, because the water 
 
 1 Home Elec. L. & P. Co. v. Globe Ames v. Cannon R. Mfg. Co., 27 Minn. 
 
 Tissue-Paper Co. (Ind. Sup.), 45 N. E. 245; Richardson v. Kier, 37 Cal. 263. As 
 
 Rep. 1108. to what is the ordinary stage of the 
 
 2 Wooden v. Mt. Pleasant L. & Mfg. water, and its relation to the freshet stage 
 
 Co. (Mich.), 64 N. W. Rep. 329. of the stream, see McCoy v. Danley, 20 
 
 3 Townesz>. Augusta (S. C.), 23 S. E. Pa. St. 85; Monongahela Nav. Co. v. 
 
 Rep. 984. See Matthews v. Metcalf (la.), Coon, 6 Pa. St. 379. 
 
 66 N. W. Rep. 189. 6 Ames v. Cannon R. Mfg. Co., 27 
 
 4 Cooper v. Hall, 5 Ohio 321; Irwin v. Minn. 245. 
 
 Janesville. Cot. Mills (Wis.), 60 N. W. 7 Gray v. Harris, 107 Mass. 492. 
 
 Rep. 786. 'Browne. Bush, 45 Pa. St. 61. 
 
 5 Casebeer v. Mowry, 55 Pa. St. 419; 9 Brown v. Bush, 45 Pa. St. 61. But 
 
 Bell v. McCHntock (Pa.), 9 Watts 119; see Newland v. Hudson R. Co. (Sup.), 
 
 State v. Ousatonic W. Co., 51 Conn. 137; 16 N. Y. Supp. 654, and Clement Mfg. 
 
 Coloneyz/. Farrow (Sup.), 36 N. Y. Supp. Co. v. Wood (Mass.), 38 N. E. Rep. 444, 
 
 164; Allen v. Chippewa Falls, 52 Wis. and Esson v* Wattier (Oreg.), 34 Pac. 
 
 430; Bristol Hy. Co. v. Boyer, 67 Ind. Rep. 756. 
 236; Dorman v. Ames, 12 Minn. 451; 
 
85. OPERATIONS PRELIMINARY TO CONSTRUCTION. ?O 
 
 was higher above than below the bridge, since, but for the dam, the water 
 below the bridge would have passed off and increased the flow under it, thus 
 relieving the backwater above. 1 If the banks of the stream were high and 
 contracted below the dam, so that the water was as high below as above the 
 dam, such a condition of things might be shown. 2 
 
 A landowner may recover for injury to his land resulting proximately 
 from the maintenance of a dam on his neighbor's premises, though such 
 injury was aggravated by other causes not within defendant's control; 3 but 
 not, it seems, if the same injuries would have resulted without the negligent 
 act of providing insufficient outlet for the waters. 4 The negligence of the 
 defendant must have caused the injury. 
 
 If a dam cause an ice-jam which dams up the waters of a stream, it seems 
 that the company owning the dam may be held responsible for injuries 
 resulting. 5 The opinions of witnesses as to the cause of the ice-jam are held 
 inadmissible, even though they live in the neighborhood and knew the condi- 
 tion of the river before the boom was built. 5 
 
 If a river-boom cause the overflow of land and crops, the owners may be 
 required to pay damages. 6 That a defective boom was remedied as soon as 
 possible, and that the conditions as to high water, floating ice, and the 
 number of logs in the boom were unusual, does not relieve the owner from 
 liability to a riparian owner for damage occasioned by water being backed 
 upon his land. 7 Evidence that a logging boom was so constructed as to 
 require "protection," and a ."cushion" of logs to "strengthen" it, is 
 sufficient to sustain a finding of a defect in the boom. 8 Where a riparian 
 owner seeks to recover for injuries to his land from an overflow alleged to 
 have been caused by a dam constructed by a booming company, the burden 
 is on him to show that the waters which caused the injury were raised by the 
 dam above ordinary high-water mark and out of the well-defined channels of 
 the stream. 9 
 
 The liability depends upon whether there was negligence. When logs 
 form a gorge and are suddenly released, causing the stream to overflow, the 
 plaintiff, in order to recover for the damage done, must show a want, of 
 ordinary care. 10 
 
 A mill-owner has a cause of action against one who, by piling logs on the 
 
 1 Payne v. Kansas City R. Co (Mo. 6 McKenzie v. Miss. Boom Co., 29 
 Sup.), 20 S. W. Rep. 322. But see Hodge Minn. 288. 
 
 v. Lehigh Val. R. Co. (C. C.), 56 Fed. 7 Doucette v. Little Falls Imp. & Nav. 
 
 Rep. 195. Co. (Minn.), 73 N. W. Rep. 847 [1898]; 
 
 2 Rucker v. Athens Mfg. Co., 54 Ga. Rogers v. Coal R. B. & D. Co. (W. Va.), 
 84. 23 S. E. Rep. 919. 
 
 'Cline v. Baker (N. C.), 24 S. E. Rep. 8 Doucette v. Little Falls Imp. & Nav. 
 
 516. Co., supra. 
 
 * James v. Kansas City, etc., R. Co., 9 Gniadck v. Northwestern Imp. & 
 
 69 Mo. App. 431. Boom Co., 75 N. W. Rep. 894. 
 
 5 Shaw v. Susq. Boom Co., 125 Pa. St. 10 Hopkins v. Butte & M. Com. Co. 
 
 324. (Mont.), 33 Pac. Rep. 817. 
 
71 DETENTION OF WATERS OF STREAMS. 8/. 
 
 ice above the mill when the stream is frozen over, interrupts the natural flow 
 of the stream to the mill. 1 
 
 Actual possession by one who is not the owner of the fee is sufficient to 
 give him a right to damages. 2 ' The fact that the watercourse is not a 
 permanent stream, or that the party doing the act is a city, makes no differ- 
 ence. The liability for flooding the lands of another remains. 3 
 
 86. Injunction to Prevent the Detention or Obstruction of Waters. 
 Damming of waters of a stream so that they set back and interfere with the 
 operation of a mill 4 may be enjoined by injunction. The raising of the level of 
 the water must not be so as to interfere with the drainage of another's land. 5 
 The detention and collection of water by a dam which becomes stagnant and 
 injurious to the health of the community will be prohibited by injunction. 6 
 If the mill be a great public convenience and it is proposed to rebuild the 
 dam so that the owner's land will be flooded and the health of his family 
 injured, an injunction may be denied and the plaintiff required to bring action 
 for his damages. 7 * In such cases it has been held that the expense of sickness 
 and loss of time could be recovered. 8 f 
 
 One may in the same action seek damages for injury to water rights and 
 injunction. 9 
 
 Where plaintiff's land was overflowed during the winter freshets, his appli- 
 cation for an injunction to restrain the building of a dam on the stream 
 should be denied, since it cannot be inferred that the damage from overflow 
 would be augmented by its existence. 10 
 
 87. Liability for Defective Construction of Dam or Barrier. To avoid 
 liability, the owner must have built his dam so as to be free from defects, or 
 as free as reasonable care, forethought, and judgment could devise. If built 
 with that reasonable care which prudent men would use, and no negligence 
 is shown in its care or management, the owner will not be liable for damages 
 caused by its breaking. 11 A dam must be able to resist not merely ordinary 
 
 1 Wooden v. Mt. Pleasant L. & Mfg. Rep. 490; 28 Amer. & Eng. Ency. Law 
 Co. (Mich.), 64 N. W. Rep. 329. 960, and cases cited. 
 
 2 Allen v. McCorkle (Tenn.). 3 Head 7 Daugherty v. Warren, 85 N. C. 136, 
 181. 8 Mills v. Hall (N. Y.), 9 Wend. 315- 
 
 3 Rose v. St. Charles, 49 Mo. 509. 28 Amer. & Eng. Ency. Law 960, many 
 4 McIntosh v. Rankin (Mo. Sup.), 35 S. cases cited. 
 
 W. Rep. 995; Newland v. Hudson R. 9 Watterson v. Saldunbehere (Cal.)i 3S 
 
 Co. (Sup.), 16 N. Y. Supp. 654; Rothery Pac. Rep. 432. 
 
 v. N. Y. Rubber Co. (N. Y.), 24 Hun 10 Esson v. Wattier (Or.), 34 Pac. Rep. 
 
 172; Matthews v. Metcalf (Iowa), 66 N. 756. 
 
 W. Rep. 189; 28 Amer. & Eng. Ency. ll New York v. Bailey (N. Y.), 2 Den. 
 
 Law 960. 433. Darling v. Thompson (Mich.), 65. 
 
 5 Sims v. Smith, 7 Cal. 149; Treat v. N. W. Rep. 754; Sterling Hyd. Co. v. 
 
 Bates, 27 Mich. 390; Bassett v. Salisbury Williams, 66 111. 393; Rich v. Keshena 
 
 -Mfg. Co., 43 N. H. 569. Imp. Co., 56 Wis. 287; Hoffman v. Tuo- 
 
 6 Montezuma v. Minor, 73 Ga. 484; lumne Co. W. Co., 10 Cal. 413; Wolf v~ 
 
 Thomas v. Calhoun, 58 Miss. 80; Mayo St. Louis I. W. Co., 10 Cal. 541; Everett 
 
 v. Turner (Va.), I Munf. 405; Masonic v. Hyd. F. T. Co., 23 Cal. 225, Arave v. 
 
 Temp. Assn. v. Banks (Va.), 27 S. E. Idaho C. Co. (Idaho), 46 Pac. Rep. 1024. 
 
 * See Sees. 209, 219, infra. \ See Sec. 223, infra. 
 
88. OPERATIONS PRELIMINARY TO CONSTRUCTION. / '2 
 
 freshets, but such extraordinary floods as might reasonably be expected. 1 
 The fact that a flood which overflowed a person's land was higher than had 
 ever before been known will not relieve the owner thereof from liability, if 
 the river was one subject to sudden rises and increased volume. 2 
 
 Where a dam was washed away by a phenomenal flood that no one could 
 expect, the owner was held not liable. Where a dam was washed away which 
 had no waste-weir or flagging over the dirt filling between the walls of the 
 dam, and experts testified that it was not safe to build a dam without a waste- 
 weir, and another witness testified that he would not build such a dam with- 
 out a waste-weir, the question of negligence in its construction is properly for 
 the jury. 3 
 
 88. Maintenance and Repair of Dam. The owner of a dam must use 
 proper care in repairing and protecting it. 4 A purchaser of an unsafe dam 
 who fails to make it safe, and to so maintain it as not unnecessarily to 
 endanger life or property, is liable for injuries caused thereby. 5 
 
 One to whom a reservoir is leased in consideration of his completing its 
 construction and maintaining it is an "owner" within the meaning of an 
 act providing that the owners of reservoirs shall be liable for floods from the 
 breaking of the embankments. 6 
 
 When a state has granted a public work to a corporation, the grantee 
 corporation is discharged from those duties to the public growing out of the 
 work which the state had provided before the grant was made, unless there 
 are express words in the grant which impose such duties upon the corpora- 
 tion. 7 
 
 Where one owns a dam and pond, and another a right to draw water 
 therefrom, there being no contract to maintain the dam, either may abandon 
 the power and free himself from its maintenance ; but either has the right to 
 maintain the power, and to have the other, till such abandonment, contribute 
 his share of the expense. One such owner cannot recover from the other for 
 damages caused by unnecessary delay in repairing the dam, since he has the 
 right to prevent such damage by making the repairs himself and compelling 
 contribution. 8 A deed granting merely the right of drawing water from a 
 dam imposes no obligation upon the grantor or his assignee to rebuild the 
 dam when swept away. 9 
 
 1 New York v. Bailey (N. Y.), 2 Den. Lumber Co. (N. H.), 39 All. Rep. 1019 
 433; Lapham v. Curtis, 5 Vt. 379. [1897]. See Chicago R. I. & P. R. v. 
 
 2 Mundy v. N. Y., etc.. R. Co. (N. Y.), Moffit, 75 HI. 524 [1874]. 
 
 75 Hun 479. 6 Larimer County Ditch Co. v. Zimmer- 
 
 3 Cottrell v. Marshall Infirmary (Sup.), man (Colo. App.)< 34 Pac. Rep. mi; 
 24 N. Y. Supp. 381. Meyer v. Harris (N. J.), 38 Atl. Rep. 690 
 
 4 Weidekind v.. Tuolumne Co. W. Co. [1897]. 
 
 (Cal.), 12 Pac. Rep. 387 [1887]; Darling ' 7 Erie v. Erie Canal Co., 59 Pa. St. 
 
 v. Thompson (Mich.), 65 N. W. Rep. 754; 174. 
 
 Arave v. Idaho C. Co. (Idaho), 46 Pac. 8 Webb v. Laird (Vt.), 7 Atl. Rep. 465 
 
 Rep. 1024; Rigdon v. Temple W.-w. Co. [1887]. 
 
 (Tex.), 32 S. W. Rep. 828. 9 Trudeau v. Field (Vt.), 38 Atl. Rep. 
 
 5 Town of Monroe v. Connecticut River 162 [1897]. 
 
73 DETENTION OF WATERS OF STREAMS*.. ^ ,, , 90. 
 
 If a dam became choked or obstructed with ice, the proprietor may be 
 held liable for damages occasioned by such obstruction. 1 
 
 89. Liability for Injuries to Dam. Where a person has maintained a 
 dam for over fifty years on a navigable river used for the floatage of logs, 
 persons injuring the dam, by reason of their negligence in handling the logs, 
 are liable to the owner of the dam for the injuries. a The mill-owner cannot 
 recover for damages to his mill property caused by logs floated over his dam 
 without negligence, where the injuries could have been avoided by his build- 
 ing an apron on the dam. 8 
 
 When one has maintained a dam at a certain height, 4 or has flowed certain 
 lands without interruption, 5 or has diverted certain waters by an aqueduct 
 over defendant's lands, 6 for a period of years equal to the statutory limit, he 
 will have a good defense to a suit to prevent a continuance of such acts or 
 for damages resulting therefrom. 
 
 90. Injuries ^Due to Floods that might have been Expected, Foreseen, 
 and Guarded Against. The flood which caused the damage must have been 
 an extraordinary one which could not reasonably have been expected and 
 foreseen, or it must have been the result of unforeseen causes, or the 
 proprietor of the dam causing it will be liable. 7 
 
 An extraordinary rainfall or an unusual spring freshet which might be 
 expected to occur once in a series of years, and which persons of ordinary 
 prudence and discretion would not think of guarding against, was held not 
 such a flood as a city was required to guard against. 8 An overflow caused 
 by the spontaneous growth of a particular kind of grass in a dam was held 
 not to make the dam-owner liable for injuries resulting. 9 The flood or 
 freshet need not necessarily have been unprecedented; as where three floods 
 come in rapid succession. The question is whether the flood which caused 
 the damage was extraordinary and such as would not reasonably have been 
 expected or anticipated. 10 This question as to whether the flood or freshet 
 was of such unusual or extraordinary character as to excuse the dam-owner 
 is for the jury under proper instruction. 11 
 
 If the obstruction of a stream by a dam is unlawful in the first instance, 
 the owner will be liable in damages without regard to whether it is reason- 
 able or whether provisions were made against freshets and floods. 12 
 
 1 Cowles v. Kidder, 24 N. H. 364; 38 Wis. 21; Sabine v. Johnson, 35 Wis. 
 Weaver v. Miss. Boom Co., 28 Minn. 534. 185; Proctor v. Jennings, 6 Nev. 83. 
 
 2 James v. Carter (Ky.), 29 S. W. Rep. 8 Alexander v. Milwaukee, 16 Wis. 247. 
 19. 9 Knoll v. Light, 76 Pa. St. 268. 
 
 ' 3 Huff v. Kentucky Lumber Co. (Ky.), 10 Pittsburg, etc., R. Co. v. Gilleland, 
 
 45 S. W. Rep. 84 [1898]. 56 Pa. St. 445. And see People v. Utica 
 
 4 Ballard v. Struckman (111.), 14 N. E. Cement Co., 22 111. App. 159. 
 
 Rep. 682 [1888]. See A. P. Cook Co. v. "Gray v. Harris, 107 Mass. 492; Bor- 
 
 Beard (Mich.), 65 N. W. Rep. 518. chardt v. Wausaw B. Co., 54 Wis. 107; 
 
 5 Gleason v. Tuttle, 46 Me. 288 [1858]. Higgins v. New York, etc., R. Co. (Sup.), 
 
 6 Emerson v. Bergin (Cal.), 18 Pac. 29 N. Y. Supp. 563. 
 
 Rep. 264 [1888]. 12 Hartshorn v. Chaddock (Super. Ct.), 
 
 7 China v. Southwick, 12 Me. 238; Pix- 40 N. Y. St. Rep. 953. 
 ley v. Clark, 35 N. Y. 520; Cobb v. Smith, 
 
CHAPTER VIII. 
 
 DIVERSION AND OBSTRUCTION OF WATERS. STREAMS. 
 
 101. Diversion of Watercourses. A riparian owner may change the 
 course of a stream flowing through his land if he returns it to the original 
 channel at the point where it leaves his land, ancl does not unreasonably 
 diminish the flow of the. stream. l A stream may be diverted for the purpose 
 of irrigating the lands of the owner if there be no excessive diminution of the 
 waters. 2 The diversion of a moderate quantity of water for the use of steam- 
 engines may be made without liability to the lower riparian owner unless he 
 has suffered perceptible damage. 3 
 
 One who has acquired a right to divert the waters of a stream may 
 change the point of diversion and the place of use without losing his right of 
 priority, when the rights of others are not injuriously affected. 4 To divert 
 the waters of a stream into one's own land without license, grant, or lawful 
 right is a nuisance. 5 The construction of a sewer in the bed of a stream and 
 the discharge of the stream through the sewer has been held a taking of the 
 water of the stream, even though the water is returned to the natural 
 channel. 6 
 
 102. The Quantity Must Not be Materially Diminished. Water may 
 not be diverted so as to lessen the supply to other riparian owners to which 
 they are entitled. 7 
 
 One who digs a ditch which diverts water from a stream, to the damage 
 of the owner of a pond fed by such stream, is liable for the loss occasioned 
 thereby even after he has ceased to work on the ditch, since the effect of the 
 wrongful act is continuous. 8 The diversion of water from a creek by a rail- 
 
 1 Garwood v. N. Y. Cent. R. Co., 83 53; Porter v. Durham, 74 N. C. 767; 
 N. Y. 400; Pettibone v. Smith, 37 Mich. Williams v. Fulmer (Pa. Sup.), 25 Atl. 
 579; Creighton v. Kaweah Canal Co., 67 Rep. 103; Learned v. Castle, 78 Cal. 454; 
 Cal. 221; Moore v. Clear Lake W. (Cal.), Hocutt v. Wilmington & W. R. Co. (N. 
 5 Pac. Rep. 494 [1885]; Earl of S. v. Gt. C.), 32 S. E. Rep. 681 [1899]. 
 
 N. R. Co., L. R. 10 Ch. Div. 707. 6 Worcester Gas Lt. Co. v. Co. Comm'rs, 
 
 2 Embry v. Owen, 6 Exch. 353. 138 Mass. 289 [1885!. See Schoen v. 
 
 3 Elliott v. Fitchburg R. Co. (Mass.), Kansas City, 65 Mo. App. 134. 
 
 10 Cush. 191. 7 28 Amer. & Eng. Ency. Law 979, and 
 
 4 Fuller v. Swan R. P. Min. Co. (Colo.), cases cited. 
 
 19 Pac. Rep. 836 [1889]. 8 Covert v. Valentine (Sup.), 21 N. Y. 
 
 5 Vernum v. Wheeler, 35 Hun (N. Y.) Supp. 219. 
 
 74 
 
75 DIVERSION AND OBSTRUCTION OF WATERS. 104. 
 
 road company and its conveyance in'pipes to reservoirs for the supply of their 
 locomotives, and in such a quantity as to perceptibly reduce the volume of 
 the stream and diminish the grinding power of a mill, will render the railroad 
 company liable to damages and to an injunction to stop such diversion. 1 A 
 diversion that is not continuous, but for certain periods, may be restrained if 
 it be unlawful. 2 .If a person conduct as much water to the stream as he has 
 taken therefrom, it seems that he will not be restrained from so doing. 3 If 
 there are two mill-owners upon opposite sides of a stream, and one has the 
 exclusive right to the whole of the water, it seems that when there is not 
 enough for both mills he has not a legal right to erect a permanent dam to 
 turn all the water to his own mill, but must rely on his legal remedies if his 
 rights are infringed by the opposite mill -owner. 4 
 
 103. Obstruction of Outlet to Pond. If the owner of the outlet of a 
 pond or lake has allowed it to become obstructed so as to raise the water on 
 the land of another, the latter may not cut a drain to discharge such water, 
 but should remove the' obstruction to the original outlet. 5 If, however, a 
 diversion has resulted from natural causes, a lower riparian owner has no right 
 to go upon the land of an upper proprietor to restore a stream to its original 
 channel independent of a contract or without a license. 6 A ditch may not 
 be dug to drain away waters of a lake, in times of high water, to the injury 
 of the owner of the water-power at the natural outlet of the lake. 7 * 
 
 104. Diversion Not Excused by Fact that Sufficient Water Remains. It 
 is not necessary that the diversion should cause actual injury to the plaintiff. 
 It is an infringement of his right, and damages may be recovered because of 
 acts of the defendant, for he could after long user furnish evidence which 
 would destroy the plaintiff's rights. 8 A wrongful diversion will be restrained 
 even though sufficient water is left after the use for all purposes to which the 
 lower riparian owner puts the stream at the time of the wrongful acts. 9 Any 
 diversion of waters to which the party making the diversion is not justly and 
 lawfully entitled will be restrained. If the diversion be wrongful, it is a 
 continuing injury to other persons, and successive actions may be brought in 
 the courts as long as the diversion is continued. 10 
 
 ^arwood v. N. Y. Cent. R. Co., 83 N. Rothery (N. Y. App.), 30 N. E. Rep. 841; 
 
 Y. 400. Southern M. Co. v. Darnell (Ga.), 21 S. 
 
 2 Carron v. Wood, 10 Mont. 500. E. Rep. 531; Chatfield v. Wilson, 27 Vt. 
 
 3 Wilcox v. Hausch, 64 Cal. 461. 670 [1854]. 
 
 4 Curtis v. Jackson, 13 Mass. 507. 9 Gilzinger v. Saugerties W. Co. (Sup.), 
 5 Mohr v. Gault, 10 Wis. 513. 49 N. Y. St. Rep. 308; Miller v. Windsor 
 6 Wholey v. Caldwell (Cal.), 41 Pac. W. Co. (Pa. Sup.), 23 Atl. Rep. ^32; 
 
 Rep. 31. semble, Gallagher v. Kingston W. Co. 
 
 7 Bennett v. Murtaugh, 20 Minn. 151. (N. Y.), 25 App. Div. 82. But see Pine 
 See Underground Waters, 27 Amer. & v. New York (C. C.), 76 Fed. Rep. 418. 
 Eng. Ency. Law 423. 10 Bare v. Hoffman. 79 Pa. St. 71; Gal- 
 
 8 28 Amer. & Eng. Ency. Law 981; Rig- lagher v. Kingston W. Co, (N. Y.), 25 
 ney v. Tacoma Lt. & W. Co. (Wash.). 38 App. Div. 82 [1898]. But see Pine v. 
 Pac. Rep. 147; New York R. Co. v. New York (C. C.), 76 Fed. Rep. 418. 
 
 * See Sees. '251-280, infra. 
 
105^ OPERATIONS PRELIMINARY 7'O CONSTRUCTION. 76 
 
 In arid districts where irrigation laws have been passed, under the principles 
 of prior appropriation the right to water flowing in public streams may be 
 acquired by actual appropriation for a beneficial use to an extent necessary 
 for the purposes for which the appropriation is made, when reasonably used 
 with reference to the general condition of the country and the necessities of 
 the community; and the surplus may be appropriated, subject to the rights 
 of prior appropriators. l * 
 
 105. Diversion of Stream into New Channel. Within the limits of one's 
 own land the course of the stream may be changed provided it be restored 
 practically undiminished to the original channel before leaving his premises. 2 
 The failure to restore the waters to their original channel constitutes an 
 unlawful diversion. 3 It is no excuse that the unauthorized interference of a 
 stranger rendered the means provided for restoring the 'water unavailable, 
 though otherwise adequate. 4 A person entitled to the use of water may 
 change the place of diversion, the place where it is used, or the use to which 
 it is applied, if others are not injured by such change 5 and no more than he 
 is entitled to is diverted. 6 
 
 One who makes a new channel for a stream impliedly authorizes the 
 public to use the new channel as they had previously used the original 
 channel. This is so if he has obstructed the old channel ; but if the obstruc- 
 tion of the old channel has arisen not from the making of the new one, but 
 from the consequent stoppage of the flow of the stream at a distant point, the 
 public acquires no right to use the new channel. 7 In making a new channel 
 for a stream, reasonable care and foresight must be exercised. If this has 
 been done, there will be no liabilities for injuries resulting from unforeseen 
 causes. 8 
 
 In the matter of obstruction the new channel will be governed by the 
 same rules as a natural watercourse. & Care must be taken to make the new 
 channel adequate to carry off the waters, 10 even though the change is made 
 under power conferred by charter of the city. 11 At least it must be equally 
 adequate to carry off the flow at all times and in all cases that may be 
 
 1 Union Mill & Min. Co. v. Dangberg 7 Dwinel v. Barnard, 28 Me. 554. 
 
 (C. C. D. Nev.), 81 Fed. Rep. 73, citing 8 Hargraves v. Kimberly, 26 W. Va. 
 
 many cases. 787; Brown v. Best, I Wils. 174. 
 
 2 Mo. Pac. Ry. Co. v. Keys (Kan.), 40 9 Mo. Pac. Ry. Co. v. Keys (Kan. 
 Pac. Rep. 275; Gould v. Eaton (Cal.), 49 Supp.), 40 Pac. Rep. 275. And see 
 Pac. Rep. 577; 28 Amer. & Eng. Ency. Sweeney v. Mont. Cent. Ry. Co. (Mont.), 
 Law 982. 47 Pac. Rep. 791. 
 
 3 Woodworth v. Genesee P. Co. (N. Y.), 10 Tucker v. Salem Mills (Oreg.), 16 
 18 App. Div. 510. Pac. Rep. 426 [1888]. 
 
 4 Stein v. Burden, 29 Ala. 127. n Barus v. Hannibal, 71 Mo. 449; Imler 
 
 5 Ramelli v. Irish (Cal.), 31 Pac. Rep. v. Springfield, 55 Mo. 119; Wigmann v. 
 41- Jefferson, 61 Mo. 55; Carl v. W. Aber- 
 
 6 Smith v. Corbit (Cal.), 48 Pac. Rep. deen Ld. & Imp. Co. (Wash.), 43 Pac. 
 725. But see Hague v. Nephi Irr. Co. Rep. 890. 
 
 (Utah), 52 Pac. Rep. 765. 
 
 * Set Sees. 71-80, supra. 
 
77 DIVERSION AND OBSTRUCTION OF WATERS. 107. 
 
 reasonably anticipated. The person diverting the stream is liable for injuries, 
 caused by any defects in regard to these requirements. 1 
 
 A landowner is not entitled to recover damages from overflow, under an. 
 allegation that a canal was too small to carry off the waters accumulated " in 
 time of heavy rains and freshets," where it is not shown that the former bed 
 of the river was adequate for that purpose. 2 
 
 The owner of a piece of land through which a stream of water runs may 
 change the course ot the stream on his own land to any extent, if he does not 
 thereby diminish, in any material degree, the beneficial use of the stream to 
 other proprietors either above or below. Where such diversion affects those 
 above or below unfavorably, it requires fifteen years (in Vermont) to give the 
 right to continue the stream in the new channel. If the diversion affects- 
 other proprietors favorably, and the party on whose land the diversion is 
 made acquiesces in the stream running in the new channel for so long a time 
 that new rights may be presumed to have accrued, or have in fact accrued, in 
 faith of the new state of the stream, the party is bound by such acquiescence, 
 and cannot return the stream to its former channel. 3 * 
 
 Evidence of diversions by persons other than defendant is inadmissible, it 
 not appearing whether such diversions were lawful or with plaintiff's consent. 4 
 
 106. Excavating and Deepening the Channel of a Stream, A riparian 
 owner may excavate the bed of a stream, although he thereby increases the 
 quantity of water. This is often done to increase the flow of springs which 
 are the sources of creeks. 5 One must have more than a prescriptive right to 
 the waters, to be entitled to so excavate. 6 Care must be taken not to injure the 
 property of other riparian owners, nor their rights in the stream. 7 One may 
 not change the natural course of a stream to protect his meadow, where such 
 change will so increase the current of the stream as to damage the mill-dam 
 of the owner of the lower land by washing the banks and filling the dam with 
 sediment. 7 To protect one's own land, it has been held that one might, as 
 against the proprietors on the opposite side of the river, change the channel 
 and mouth of the creek upon his own land, if in doing so he exercised 
 reasonable care and caution not to injure others. This could not be done if 
 it increased the danger of overflow on the opposite side of the stream. 8 
 
 107. New Channel Fixed by Prescription. If the water has flowed in a 
 new channel for the period of twenty-one years, i.e., for the period of limita- 
 tions, it cannot be diverted and returned to its old course to the injury of 
 those who have acquired prescriptive rights in the stream. 9 Where water has. 
 
 1 Fletcher v. Smith, L. R. 7 Exch. 305. 6 Colman v. State (N. Y. App.), 31 N. 
 
 2 Powers v. St. Louis Ry. Co., 71 Mo. E. Rep. 902. 
 
 App. 540 [1897]. 7 Ka y v - Kirk - 76 Md. 41, 24 All. Rep. 
 
 3 Ford v. Whitlock, 27 Vt. 265 [1855]- 326. 
 Heliborn v. Kings River & Faco Co. ' 8 Railroad Co. v. Carr, 38 Ohio St. 448. 
 
 Ford v. Whitlock, 27 Vt. 265 [1855]- 326. 
 
 iver & Faco Co. x 
 
 j [1888]. 9 I 
 
 .), 6 1 Barb. 130. Rep 
 
 * See Sees. 107 and 661-670. infra. 
 
 (Kans.), 17 Pac. Rep. 933 [1888]. 9 Leidlein v. Meyer (Mich.), 55 N. W. 
 
 Waffle v. Porter (N.Y.), 61 Barb. 130. Rep. 367; Mathewson v. Hoffman, 77 
 
IO/. OPERATIONS PRELIMINARY TO CONSTRUCTION. ?8 
 
 flowed for twenty-one years from springs on defendant's land through a 
 natural channel to plaintiff's land, the former has no right to divert it. 1 
 
 No prescriptive right to the use of the water of a stream can be acquired 
 by one riparian proprietor, as against another, by a use of the water at times 
 when such use does not interfere with the latter's use of the water, and when, 
 as often as there is interference, the latter has protested and sought to 
 prevent the use. 2 
 
 Parties failing to connect themselves by title with prior occupants who 
 had appropriated the water of a stream for the cultivation of the land cannot 
 avail themselves of such prior appropriation of the water. Their own appro- 
 priation of the water must be treated as the inception of their rights. 2 The 
 use of the water must have been hostile and not under a license. 3 
 
 The fact that one who owns and controls a dam and canal for the purpose 
 of navigation diverts an inconsiderable amount of water from the stream to 
 create a water-power is not per se notice of an adverse claim of right to so 
 use said water. 4 The acquiescence of a riparian owner does not give to a 
 person diverting water to a useful purpose a prescriptive right therein against 
 the owner by operation of the statute of limitations. 5 The right of a riparian 
 owner to put to a legitimate use the water of a stream flowing through or 
 along his land is not lost by nonuser. 5 
 
 A right acquired by the state, through adverse user, to divert water from 
 a river into a stream flowing through plaintiff's land gives the state no title 
 by adverse possession to land under the stream, and hence no right to broaden 
 and deepen its bed. 6 
 
 If the new channel was caused by sudden floods, and has continued in 
 that course for the full period of prescription, it cannot be restored to its old 
 channel. 7 A mill -owner may prevent the restoration of a stream to its 
 original channel if he has acquired by prescription the right to discharge the 
 water from his mill into an artificial channel. 8 
 
 If water has been conducted to a mill-race, but has occasionally been 
 turned into its old channel in order that the race might be cleaned and 
 repaired, a recent purchaser of land cannot complain if the water is turned 
 back into its original channel permanently. 9 
 
 Greg 420; Woodbury v. Short. 17 Vt. berg (C. C.), 81 Fed. Rep. 73. 
 
 387; Eshleman v. Martic (Pa. Sup.), 25 3 Huston v. Bybee (Oreg.), 20 Pac. 
 
 Atl. Rep. 178; Tucker v. Salem F. Mills Rep. 51 [1889]. 
 
 (Oreg.), 16 Pac. Rep. 426 [1888]. * Green Bay Canal Co. v. Kaukauna 
 
 1 Adam v. Moll, 6 Pa. Super. Ct. 380 W. P. Co. (Wis.), 61 N. W. Rep. 1121. 
 [1898]; Eshleman v. Martic (Pa. Sup.). 5 Hargrave v. Cook (Cal.), 41 Pac. 
 25 Atl. Rep. 178; Mastenbrook v. Alger Rep. 18. 
 
 <Mich.), 68 N. W. Rep. 213; Taylor v. 6 Colman v. State (N. Y. App.). 31 N. 
 
 Blake (N. H.), 10 Atl. 698 [1887] ; Huston E. Rep. 902; Terre Haute & I. R. Co. v. 
 
 v Bybee (Oreg.), 20 Pac. Rep. 51 [1889]; Zehner (Ind. App.), 42 N. E. Rep. 756. 
 
 Knights of P. v. Leadbeter (Pa.), 39 W. 7 Woodbury v'. Short, 17 Vt. 387. 
 
 N. Cas. 188. 8 Delaney v. Boston (Del.), 3 Harr. 489. 
 
 2 Union Mill & Mining Co v. Dang- 9 Peter v. Caswell, 38 Ohio St. 518. 
 
79 DIVERSION AND OBSTRUCTION OF WATERS. I IO. 
 
 108. Riparian Owners whose Rights are Not Affected Cannot Complain. 
 
 One whose rights are not in any way affected by such wrongful diversion 
 may not complain of the wrongful act. The owner of land upon another 
 stream into which the stream diverted occasionally empties has no just cause 
 to complain unless he shows that the quantity that would have emptied into* 
 his watercourse has been lessened. 1 An upper riparian owner cannot com- 
 plain about what a neighbor lower down on the stream is doing if it does not 
 affect him injuriously. 2 It is no excuse for the diversion of the waters of a 
 lake that the plaintiff supplied water by certain acts, and the defendant will 
 be supplied with sufficient water to furnish a more uniform supply for his 
 mill than he had previously had from the lake. 3 
 
 A riparian owner is not estopped from maintaining an action against a 
 water company for wrongfully diverting water from a stream because he is a 
 water-taker from the company. 4 
 
 It has been held that if the uninterrupted flow of a stream would be 
 insufficient to afford one, having rights in its waters, any beneficial use of it, 
 he is not entitled to interfere with the use of such waters by others. 5 
 
 The owner of land who has appropriated the waters of a stream for irriga- 
 tion purposes cannot enjoin the diversion of waters from the stream by the- 
 owner of land fifteen miles above him, which water cannot reach plaintiff's 
 land because of the drying up of the stream between his land and defendant's, 
 on the ground that the volume of water diverted might, in the event of 
 an unusual flow of water, cause some to flow to plaintiff's land. 6 
 
 109. Mode of Diverting Waters. It does not matter by what methods 
 waters are diverted, whether by damming or by erecting a bulwark or pier 
 either in a stream or upon the banks of a stream. A bulkhead erected upon 
 the banks of a stream, in times of flood, which has the effect of diverting 
 the stream from its accustomed course, and causing an unusual overflow of 
 the lands of neighbors, is a nuisance. 7 
 
 110. Diversion of Waters by Percolation or Subterranean Channels. 
 Any diversion of the watercourse, by whatever act or means, is equally wrong- 
 ful whether it be the diverting of the waters of a stream or of a spring which 
 is the source of a running stream. 8 A riparian proprietor cannot dam a 
 stream so that the water accumulates in an artificial pond and by percolation 
 
 ^reighton v. Raweah C. Co., 67 Cal. 7 Lord v. Meadville W. Co., 135 Pa. St. 
 
 2-^1 ; Platte Val. Irr. Co. v. Backers 122; Colrick v. Swineburne, 105 N. Y. 
 
 (Colo.), 53 Pac. Rep. 334 % [i898]. 503; Menzies v. Beedlebane, 2 Wils. 235; 
 
 2 Larimer & W. Res. Co. v. Water S. & Ewing v. Colquhoun, L. R. 2 App. Cas.. 
 
 S. Co. (Colo. App.), 42 Pac. Rep. 1020. 839; Bickett v. Morris, i H. L. Cas. 47. 
 
 8 Smith v. Rochester, 104 N. Y. 674. 8 Boynton v. Oilman, 53 Vt. 17; Strait 
 
 4 Chace v. Warsaw W. Co. (Sup.), 29 v. Brown, 16 Nev. 317; Springfield W.- 
 
 N. Y. Supp. 729. w. Co. v. Jenkins, i Mo. App. Repr. 
 
 5 Union M. & M. Co. v. Dangberg (C. 699; Leavenworth- v. Prospect R. W. Co. 
 C.), 81 Fed. Rep. 73. (Com. PL), 8 Kulp 310; Colrick v. Swin- 
 
 6 Raymond v. Wimsette (Mont.), 31 bure (N. Y.), 12 N. E. Rep. 427 [1887]. 
 Pac. Rep. 537. 
 
III. OPERATIONS PRELIMINARY TO CONSTRUCTION. 80 
 
 and evaporation is diminished in quantity so as to deprive the lower 
 proprietor of a reasonable amount of water. 1 It is wrongful to draw off the 
 waters of a stream by subterranean percolations. The waters of the stream 
 cannot be diverted from their natural course, except for the natural wants of 
 a riparian owner, 2 Springs that are the source of a creek or brook may not 
 be diverted to unknown subterranean channels though they do find their way 
 back to the creek. 3 
 
 A grant of the waters of a designated spring does not carry with it the 
 right to excavate and so get water from neighboring springs to the full 
 capacity of a pipe laid, but only the right to take such water as may flow 
 from the spring designated. 4 
 
 In some states the right to the use of a spring depends upon discovery 
 and an express declaration of location and a claim of ownership of the spring 
 and the waters flowing from it. 5 An appropriator of water in United States 
 public lands is entitled to the use of the same, as against one who subse- 
 quently acquires title to the land from the government. 6 
 
 111. Measure of Damages for Diversion of Waters. As before stated, a 
 riparian owner may recover nominal damages for the invasion of his rights 
 even though he sustained no actual injury. If a diversion of water results in 
 actual injury, the measure of damages will be estimated by the actual loss 
 which has been sustained and the expense he has been put to by reason of 
 the diversion of the flow and the use of the water during the time of the 
 diversion. 7 
 
 It has been held that damages for diversion of a stream from a manufac- 
 tory was the diminished rental value of the works during the period of 
 diversion. 8 Another case held that the measure of damages was the actual 
 value of the use of the water during the time that it was diverted. 9 
 
 In arriving at an estimate of the value of certain water-powers, of which 
 the owner was deprived by reason of the appropriation of the stream as a 
 supply for a neighboring town, the stream being torrential, the commissioners 
 properly estimated its average capacity, exclusive of seasons of flood and 
 
 1 White v. East Lake L. Co. (Ga.), 23 13 N. Y. Supp. 12 reversed. 
 
 S. E. Rep. 393; Mitchell v. Bain (Ind.), 5 Silver Peak Mines v. Valcada (C. C.), 
 
 42 N. E. Rep. 230; Bruening v. Dorr 79 Fed. Rep. 886; Taylor v. Abbott (Cal.), 
 
 (Colo. Sup.), 47 Pac. Rep. 290; Hopper 37 Pac. Rep. 408. 'And see Malad Val. 
 
 v. Hopper (Pa. Sup.), 23 Atl. Rep. 321. Irr. Co. v. Campbell (Idaho), 18 Pac. 
 
 See Sparlin v. Gotcher (Or.), 31 Pac. Rep. Rep. 52 [1888]. 
 
 399- 6 Judkins *. Elliott (Cal.), 12 Pac. Rep. 
 
 2 Boynton v. Oilman, 53 Vt. 17; Hop- 116 [1887]. 
 
 per v. Hopper (Pa. Sup.), 23 Atl. Rep. 7 Merritt v. Brinkerhoff, 17 Johns. (N. 
 
 321. Y.) 306; Platt v. Johnson, 15 Johns. (N. 
 
 'Strait v. Brown, 16 Nev. 317; Strick- Y.)2i3; Hart v. Evans, 8 Pa. St. 13. 
 'ler v. Colorado Spgs. (Colo. Sup.), 26 8 Colrick v. Swinburne, 105 N. Y. 503. 
 
 Pac. Rep. 313. But see Leonard v. See Honsee v. Hammond (N. Y.), 39 
 
 Shatzer (Mont.), 28 Pac. Rep. 457. Barb. 89. 
 
 4 Furner v. Seabury (N. Y. App.), 31 Pollitt v. Long (N. Y.), 58 Barb. 20. 
 
 N. E. Rep. 1004; 69 N. Y. ^distinguished, 
 
8 1 DIVERSION AND OBSTRUCTION OF WATERS. I I 3. 
 
 freshet. 1 For diverting the waters of springs that fed a fish-pond, plaintiff 
 recovered only what he lost in the diminished value of the use of the pond, 
 without reference to his particular business or the special use to which the 
 fish were applied. 2 
 
 Under a conveyance of land with the right to use the water from another 
 tract, evidence of the value of plaintiff's lot at the time of the conveyance, 
 without such water right, is not admissible to prove the damages caused by 
 defendant's subsequent interference with the easement. 2 Towns taking water 
 to the injury of mill-owners cannot show,, in reduction of damages, that a 
 certain amount of the water would necessarily be returned after use by 
 percolation to the river below, and there become available for mill purposes. 3 
 
 In an action to enjoin an upper riparian proprietor from diverting waters 
 from a creek, evidence that persons other than defendant have also diverted 
 water from the stream is admissible on the question of the amount of 
 damages. 4 
 
 112. Obstruction by Bridges, Culverts, and Embankments. Streams are 
 often obstructed by the owners of land,, or by companies which own rights of 
 ways which traverse the land, to the detriment and injury of riparian owners 
 both above and below the structure. There can be no doubt but that a bridge 
 or structure may be built over or under a stream if it be so constructed and 
 maintained that it does not change the natural flow of the stream and inter- 
 fere with the rights of other riparian owners, and of the public in navigable 
 streams. 5 If the structure does interfere with the rights of riparian owners, 
 the one causing the injury will be liable in damages. 6 
 
 If the abutments of a bridge set back the waters of a stream upon the land 
 of others, the persons owning or building the bridge will be liable in damages. 
 It does not matter that the abutments of an old bridge, immediately above 
 the site of the present structure, extend equally far into the stream. 7 
 
 A railroad company that maintains a dam on its right of way over a water- 
 way, which constitutes a nuisance in causing the water to overflow adjacent 
 land, is liable though the dam was originally constructed by the county under 
 legislative authority. 8 * 
 
 113. Diversions Made to Lessen the Cost of Structures. A person or 
 company erecting a bridge may, if it seems necessary, divert the watercourse 
 
 1 In re Tracy (Sup.), 16 N. Y. Supp. 491; Fick z/. Penna. R. Co., 157 Pa. St. 
 606. 622; Ohio & M. Ry. Co. v. Thillman 
 
 2 Spencer v. Kilmer (N. Y. App.), 45 N. (111.), 32 N. E. Rep. 529; Smith v. Phila., 
 E. Rep. 865. etc., R. Co., 57 Fed. Rep. 903. 
 
 3 Proprietors v. Inhabitants (Mass.), 7 Gillespie z/. Forest (N. Y.), 18 Hun 
 32 N. E. Rep. 153. no; Masonic Temp. Assn. v. Banks 
 
 4 Gould v. Stafford (Cal.), 18 Pac. Rep. (Va.), 27 S. E. Rep. 490 
 
 879 [1888]. 8 Payne v. Kansas City R. Co. (Mo. 
 
 5 28 Amer. & Eng. Ency. Law 966. Sup.), 20 S. W. Rep. 322. 
 Bryant v. Bigelow C. Co., 131 Mass. 
 
 * See Sec. 719 infra, Obstructions of Streets by Bridges and Viaducts. 
 
114- OPERATIONS PRELIMINARY TO CONSTRUCTION. 82 
 
 to a reasonable extent from its natural channel if he (it) makes such channels, 
 bridges, culverts, or drains as may be necessary to carry off the water in the 
 direction which they may give it. He (it) is bound as part of his (its) public 
 duty to keep such public channel, bridge, or culvert in suitable and sufficient 
 repair to carry out the purpose for which it was made. l The company may 
 not be required to go to any unreasonable expense, as where a stream is a 
 broad, shallow watercourse which may be reduced in width and deepened so 
 as to carry off the water. The company may do so instead of bridging the 
 entire original width. A natural bed in a watercourse may be changed where 
 the bottom or substratum is of such a character that it makes it very difficult 
 and expensive to build the foundations, care being taken that the new 
 channel should be equally beneficial with the old one. 54 Railroad and other 
 companies constructing roads across streams are required to exercise the 
 same care in erecting bridges, viaducts, and culverts. 3 
 
 114. Structures must Provide for Ordinary Floods and Freshets. A 
 bridge, aqueduct, or culvert must be so constructed that it carries off the 
 water of the stream over which it is built under any circumstances likely to 
 occur in the usual course of nature, and including such heavy floods and 
 freshets as are ordinarily expected, although not of common occurrence. 4 It 
 is frequently held that a company is not liable for damages resulting from its 
 culverts or bridges, being insufficient to carry off the overflow caused by 
 extraordinary and unusual rainfalls. 5 
 
 If a larger span in the bridge would have obviated the flooding of 
 plaintiff's mill property, he is entitled to recover for the injury, though such 
 flooding would not have occurred if he had not raised the dam or built the 
 wall. The company erecting the structure must provide for existing circum- 
 stances. 6 Damages from the diversion of streams by such structures are not, 
 it seems, covered by the general laws providing for the acquirement of the 
 right of way. 7 If, to save expense in the construction of a railroad, the 
 
 iKoch v. Del., L. & W. R. Co. (N. J. Civ. App.), 40 S. W. Rep. 1031; Phila., 
 
 Sup.), 24 Atl. Rep. 442. etc., R. Co. v. Davis (Md.), n Atl. Rep. 
 
 2 Rowez/. Granite Edge. Co. (Mass.), 822 [1888]. 
 
 21 Pick. 344. 5 Emery v. Raleigh, etc., R. Co., 102 
 
 3 28 Amer. & Eng. Ency. Law 967. N. C. 209; Knight v Albemarle, etc., R. 
 
 4 Pick v. Penna. R. Co. (Pa. Sup.), 27 Co., in N. C. 80; Shahan v. Alabama, 
 
 Atl. Rep. 783; Norfolk & W. R. Co. v. etc., R. Co. (Ala.), 22 So. Rep. 449; 
 
 Carter (Va.), 22 S. E. Rep. 517; Cleve- Sprague v. Worcester (Mass.), 13 Gray 
 
 land, etc., Ry. Co. v. Nuttall, 59 111. App. 193: Fick v. Penna. R. Co. (Pa. Sup.), 
 
 639; St. Louis, etc., R. Co. v. Ellis, 58 27 Atl. Rep. 783; Orvis v. Elmira, etc., 
 
 111. App. no; Riddle's Ex'rs v. Dela- R. Co. (Sup.), 45 N. Y. Supp. 367. And 
 
 ware Co. (Pa. Sup.), 27 Atl. Rep. 569; see Hunter v. Pelham Mills (S. C.), 29 S. 
 
 Wallace v. Columbia & G. R. Co. (S. C.), E. Rep. 727 [1898], where the negligence 
 
 16 S. E. Rep. 35; N. Y. C. & St. L. R. Co. of the owner and act of God were coin- 
 
 v. Hamlet Hay Co. (Ind.), 47 N. E. Rep. cident. 
 
 1060 [1897]; Fleming v. Wilmington, etc., 6 Riddle's Ex'rs v. Delaware Co. (Pa.), 
 
 R. Co. (N. C.), 20 S. E. Rep. 714; Ohio & 27 Atl. Rep. 569. 
 
 M. Ry. Co. v. Thillman (111.), 32 N. E. 7 Ward v. Albemarle R. Co. (N. C.), 16 
 
 Rep. 529; Bierer v. Hurst (Pa. Sup.), 26 S. E. Rep. 921. 
 Atl. Rep. 742; Booker v. McBride (Tex. 
 
8$ DIVERSION AND OBSTRUCTION OF WATERS. 1 15- 
 
 company diverts a stream from its natural course under a bridge over the 
 channel of another stream, it will be liable in damages for overflows both 
 above and below the bridge caused by such diversion, even though the 
 waterway under the bridge was sufficient for the passage of the waters in times 
 of freshets. l 
 
 115. What was an Extraordinary Flood Is a Question for the Jury. 
 A charge that if extraordinary overflows had occurred within the memory of 
 man prior to the overflow in question, the recurrence thereof should have 
 been anticipated and the probable danger provided for, is error, for it is the 
 province of the jury to determine whether or not, under the particular 
 circumstances of the case, defendant should have anticipated the recurrence 
 of such floods as had previously occurred. 2 Whether a flood was extraor- 
 dinary on a particular stream is a question for the jury, there being evidence 
 that within forty-two years there had occurred four other floods of almost 
 equal force and volume of water. 3 The jury must determine whether a 
 bridge has an opening for the flow of water of sufficient capacity to meet all 
 the ordinary exigencies of the climate and the situation of the stream, dnd 
 also such extraordinary exigencies as experience would lead the residents in 
 that vicinity to believe might sometimes occur. 4 It is for the jury to say 
 whether an owner has, by the erection of a dam or other structure, materially 
 diminished the natural flow of water. 5 In determining what is an extraordi- 
 nary flood on a particular stream, the jury must consider what should be 
 expected in such stream from its character, the adjacent territory, and the fact 
 that there had been several previous floods of equal force and volume. 6 
 
 If the flood complained of could have been avoided, the company will 
 not be relieved from damages, though it has the right ' ' to change the water- 
 course and take water." 7 
 
 The act of a landowner in diverting a stream of water to a new channel 
 Mhen a railroad crossing has obstructed the flow of the water does not lose 
 his right to have the water flow in the old channel, unless it be shown that 
 he intended permanently to abandon it, and this question of intention is a 
 question for the jury. 8 If a bridge be erected and its abutments so placed as- 
 
 1 Adams v. Durham & N. R. Co. (N. 4 Higgins v. New York. L. E. & W. R. 
 C), 14 S. E. Rep. 857; Koch v. Del. L. Co. (Sup.), 29 N. Y. Supp. 563: Illinois. 
 & W. R. Co. (N. J. Sup.), 24 All. Rep. Cent. R. Co. v. Wilbourn (Miss.), 21 So. 
 442. Re P- i- 
 
 2 Gulf, C. & S. F. Ry. Co. v. Calhoun 5 N. Y. Rubber Co. v. Rothery (Sup.), 
 (Tex.), 24 S. W. Rep. 362; Hunter v. 23 N. Y. Supp. 247. 
 
 Pelham Mills (S. C.), 29 S. E. Rep. 727 6 Brown v. Pine Creek Ry. Co., 182 
 
 [jggg]. P a - St. 38. See Hunter v. Pelham Mills 
 
 3 Brown v. Pine Creek Ry. Co , 183 (S. C.), 29 S. E. Rep. 727 [1898], 
 
 Pa. St. 38, the Johnstown Flood of 1889; 7 St. Louis, etc., R. Co. v. Harris, 47 
 
 Ohio & M. R. Co. v. Thillman (111. Sup ), Ark. 340. 
 
 32 N. E. Rep. 529, two such floods in five 8 Mississippi Cent. R. Co. v. Mason, 
 
 years; Hunter v. Pelham Mills (S. C.), 51 Miss. 234. 
 
 29 S. E. Rep. 727 [1898]. 
 
I 1 6. OPERATIONS PRELIMINARY TO CONSTRUCTION. 84 
 
 to discharge the water in times of flood, the owner of the bridge is not liable 
 for the obstruction of surface-water flowing on his land. 1 
 
 116. Liability for Obstruction During Erection Authorized by Law. 
 One who of his own authority interferes with a watercourse, even upon his 
 own land, does so at his peril as respects other riparian owners above or 
 below; but when one acts under the authority of the law, as for the purpose 
 of constructing public works upon making compensation, he has the sanction 
 of the state in what he does, and unless he commits a fault in the manner of 
 doing it he is completely justified. For obstructing a stream he is then 
 liable only for such injury as results from the want of due skill and care in so 
 arranging necessary works as to avoid any danger reasonably to be anticipated 
 from the habits of the stream. 2 If the erection of a bridge by a railroad com- 
 pany is duly authorized by law, the company is not responsible for damages 
 arising from the temporary obstruction of the stream, or by the construction 
 of a temporary stationary bridge, or by any unavoidable delay in the comple- 
 tion of the bridge. 3 The obstruction of a navigable stream while building 
 the bridge over it is not in violation of the law, where such obstruction 
 extended over no more of the stream at any one time, and was continued for 
 no longer period, than was absolutely required. 4 
 
 Where it is necessary for a commissioner of highways, in the discharge of 
 his public duty, to shut off the water from a mill in order to repair a culvert 
 forming part of an artificial watercourse or tailrace passing under a public 
 street, and the repairs are prosecuted with diligence and reasonable care, the 
 commissioner is not liable for damages for the loss of power to the mill 
 pending such repairs. 5 Damages for permanent injury cannot be awarded for 
 a nuisance created by the temporary cessation of the work of converting a 
 creek into a sewer, caused by litigation over city bonds designed for its 
 payment. 6 Whether the extent and duration of the obstruction renders such 
 obstruction unlawful is for the jury. 7 
 
 Where a railroad company, empowered by its charter to erect and maintain 
 a bridge " so as not unreasonably to obstruct navigation," erected a temporary 
 bridge which interfered with navigation, but arranged to transfer all freight 
 without extra charge to shippers and public convenience was in fact subserved 
 by the plan pursued by the railroad company, this was held not an unreason- 
 able obstruction of navigation, and a shipper is not entitled to recover the 
 extra freight paid for transportation by rail. 8 
 
 When defendant obstructed a stream for the purpose of doing certain work, 
 
 1 Conhocton S. R. Co. v. Buffalo, etc. 6 Kerr v. Joslin (Sup.), 20 N. Y. Supp. 
 Co. (N. Y.), 3 Hun 523. 929. 
 
 2 Bellinger v. N. Y. Central R. Co., 23 6 Schoen z/. Kansas City, 65 Mo. App. 
 N.Y. 4 2[i86i]. 134 
 
 3 Hamilton v. Vicksburg, etc., R. Co., 7 Cantwell v. Knoxville, C. G. & L. R. 
 34 La. Ann. 970. Co. (Tenn.), 18 S. W. Rep. 271. 
 
 4 Cantwell v. Knoxville, C. G. & L. R. 8 Rhea v. Newport R. Co. (Cir. Ct.). 
 Co. (Tenn.), 18 S. W. Rep. 271. 50 Fed. Rep. 16. 
 
8$ DIVERSION AND OBSTRUCTION OF WATERS. 1 1 8. 
 
 under contract with a city, which would require from four days to three 
 months to do, and which might be accomplished at a little added expense in 
 another way without obstructing the stream, and an overflow filled cellars of 
 a building with offensive and filthy water, productive of disease to the tenants 
 in the building, it was held that the further obstruction of the stream might 
 be enjoined, though at his own expense the plaintiff might possibly have 
 warded off disease. 1 
 
 It is error for the court to charge the jury that " plaintiff had the right to 
 have the waters, whether rain-water or spring-water, flow as they naturally 
 would have flowed without any obstruction by the railroad," since the com- 
 pany is not liable for an obstruction incident to ^a proper construction and 
 use of its property. 2 
 
 117. Stream Contracted by Structure and Consequent Overflow. Con- 
 tracting a natural stream between two abutments from 150 feet apart to 92 
 feet apart, so that the surface of the water up-stream at a mill-dam is raised 
 five feet and the premises are injured in a freshet, was held an actionable 
 nuisance. 3 If, however, the bridge were constructed so that it would take 
 care of all waters except upon the occasion of an extraordinary flood, no 
 liability would have attached. 4 
 
 The same law is applicable to the construction and maintenance of 
 bridges by municipal corporations. 5 Bridges must be so constructed and 
 maintained as not to interfere with the natural flow of streams not only when 
 at ordinary heights, but also when swollen with floods to which they are 
 subject. A sufficient opening for the discharge of waters in times of flood as 
 well as at other times must be left, and the city or village will be liable for 
 any failure to so design their structures if land is flooded or damaged. 6 
 Culverts, aqueducts, and drains must be constructed of sufficient length and 
 cross-section to carry away waters of occasional extraordinary floods. 7 When 
 injuries have resulted, it is no defense that the culvert was constructed in the 
 usual manner. 8 Any structure maintained by a railroad company in such a 
 manner as to constitute a nuisance will make the company liable for the 
 damages resulting, notwithstanding it was originally erected by the county 
 under legislative authority. 9 
 
 118. Injunction to Restrain Obstruction of Stream, Without Proof of 
 Damages. It is not necessary to wait until the injury has been done if it can 
 
 1 Masonic Temple Ass'n v. Banks App. 213; New York Union T. Co. v. 
 (Va.), 27 S. E. Rep. 490. Cuppy, 26 Kan. 754; 28 Amer. & Eng. 
 
 2 Illinois Cent. R. Co. z/. Wilbourn Ency. Law 968, and cases cited. 
 (Miss.), 21 So. Rep. I. 7 Carriger v. E. Tennessee R. Co. 
 
 3 Taylor v. Baltimore, etc., R. Co., 33 (Tenn.), 7 Lea 388. 
 
 W. Va. 39. See Orvis v. Elmira C. & N. 8 Van Orsdol v. Burlington, etc., R. 
 
 R. Co. (Sup.), 45 N. Y. Supp. 367. Co., 56 la. 470. 
 
 4 Wabash R. Co. v. Sanders, 58 111. 9 Payne v. Kansas City, etc., R. Co.. 
 App. 213. 112 Mo. 6; Ohio & M. Ry. Co. v. Thill- 
 
 5 Haynes v. Burlington, 38 Vt. 350. man (111.;, 32 N. E. Rep. 529. 
 
 6 Wabash R. Co. v. Sanders, 58 111. 
 
119- OPERATIONS PRELIMINARY TO CONSTRUCTION. 86 
 
 be shown that damages will result. An action will lie to restrain a railroad 
 company from flooding plaintiff's land by the construction of an embankment 
 across a stream, with an insufficient culvert to permit the passage of the 
 water, even though no damages have as yet accrued, where no money judg- 
 ment is asked. 1 If there be a reasonable doubt whether the work, as the filling 
 in under a bridge, will obstruct the natural flow of water, an injunction will 
 be denied until the question is determined by the actual use of the property. 2 
 
 119. Structures must be Kept Free of Obstructions, It is the duty of a 
 railroad company to keep its culverts unobstructed. 3 It is not liable for 
 injuries if it has exercised ordinary care in keeping the opening to the culvert 
 unobstructed and has constructed it of sufficient capacity originally. 4 
 
 An owner of land which is drained of surface-water by a ditch of defend- 
 ants, whose duty it is to keep the ditch unobstructed, need not enter on the 
 premises of defendant and remove the obstructions in order to recover 
 damages resulting to his crops by an overflow occurring afterwards because of 
 such obstructions. 3 If the structure might have been expected to prevent the 
 flow under such conditions, and if such conditions were likely to arise, and 
 could have been provided for, it is no defense that the conditions arose by 
 the negligence of third persons in throwing rubbish into the water. 6 
 
 A riparian owner is not in duty bound to keep his land (a ravine) free 
 from accumulations and debris, so that it shall not be carried by high waters 
 and obstruct a culvert or passageway. 7 A town has been held not to be 
 required to keep open a culvert opposite the premises of an adjoining owner 
 merely to discharge surface-waters. 8 
 
 If a bridge cause the water and ice to gorge and overflow adjacent 
 lands, the company will be liable for damages from the overflow. For this 
 to be true, it is submitted that the gorging must have been proved to have 
 been the result of the design or character of the bridge built, 9 and in the 
 absence of proof to the contrary it is proper to presume that the structure was 
 properly constructed. 10 
 
 120. Culverts in Railroad Embankments. For a railroad company to 
 build a solid embankment for its track over a depression forming a natural 
 channel, wherein surface-water was accustomed to flow, when it was prac- 
 
 1 Lake Erie & W. R. Co. v. Young (Ind. All. Rep. 783. 
 
 Sup.), 35 N. E. Rep. 177; Phila. W. & B. 5 Baltimore & S. P. R. Co. v. Hackett 
 
 R. Co. v. Davis (Md.), n Atl. Rep. 822 (Md.), 39 Atl. Rep. 510 [1898]. 
 
 [1888]. 6 Babbitt v. Safety Fund Nat. Bank 
 
 2 Barnard v. Commissioners, 71 111. (Mass.), 47 N. E. Rep. 1018 [1897]. 
 App. 187 [1897]. 7 Simpson v. Stillwater W. Co. (Minn.), 
 
 3 West v. Louisville, etc., R. Co. (Ky.), 64 N. W. Rep. 1144. 
 
 8 Bush 404; Shahan v. Alabama R. Co. 8 Byrne v. Farmington, 64 Conn. 367. 
 
 (Ala.), 22 So. Rep 449, 509; Texarkana And see Gardiner v. Camden, 86 Me. 376. 
 
 & Ft. S Ry. Co. v. Parsons (C. C. A.), 74 9 McCleneghan v. Omaha, etc., R. Co., 
 
 Fed. Rep. 408; semblc Henry v. Ohio R. 25 Neb. 523. 
 
 R. Co. (W. Va.), 21 S. E. Rep. 863. 10 Morrisey v. Chicago. B. & Q. R. Co. 
 
 4 Fick v. Penn R. Co. (Pa. Sup.\ 27 (Neb.), 56 N. W. Rep. 946. 
 
 \ 
 
87 DIVERSION AND OBSTRUCTION OF WATERS. 121. 
 
 ticable to construct a culvert through the embankment, is negligence. 1 Such 
 openings must be provided, by bridges and culverts, as will discharge surface- 
 waters in their natural channels. a However, the mere absence of culverts or 
 drains in a railroad roadbed to permit the passage of water under the roadbed 
 does not of itself render the railroad company liable for damage to land on 
 the higher side by an overflow, unless the water might have been discharged 
 through such culverts in such manner as not to injure the owners of land on 
 the lower side by its discharge. 3 As a general rule, the obstruction of the 
 flow of mere surface-water from land by the construction of a railroad does 
 not constitute a cause of action in favor of the landowner. 4 * 
 
 When, after an unprecedented rainfall, a quantity of water was accumulated 
 against one of the sides of the defendants' railway embankment, to such an 
 extent as to endanger the embankment, and, in order to protect the embank- 
 ment, the defendants cut trenches in it by which the water flowed through 
 and went ultimately on the land of the plaintiff, which was on the opposite 
 side of the embankment and at a lower level, and flooded and injured it to a. 
 greater extent than it would have done had the trenches not been cut, and 
 the jury found that the cutting of the trenches was reasonably necessary for 
 the protection of the defendants' property, and that it was not done negli- 
 gently, it was held that, though the defendants had not brought the water on 
 their land, they had no right to protect their property by transferring the mis- 
 chief from their own land to that of the plaintiff, and that they were therefore 
 liable. 5 
 
 To recover damages against the bridge or railroad company it must be 
 shown that the damages would not have occurred if the embankment had not 
 been located where it was. 6 
 
 A city in building an embankment across a watercourse within its limits, 
 leaving thereunder a culvert to discharge the waters, does not insure the 
 sufficiency of the culvert at all times, as after an unusual rain. It must have 
 exercised due and proper care. It is only liable where, in the construction of 
 the embankment and culvert, it has failed to employ and follow the reasonably 
 justified and honestly given advice of competent, engineers. 7 j" 
 
 121. Openings in the Clear for Navigation. Where a company has been 
 authorized to construct a bridge by an act which requires, among other 
 
 ^ungblum v. Minneapolis, N. U. & S. 61 Wis. 515 [1884]. And see 62 Wis. 
 W. R. Co., 72 N. W. Rep. 971. 116; 63 Wis. 183, 232, and 329; 69 Wis. 
 
 2 Norfolk & W. R. Co. v. Carter (Va.), 561; 70 Wis. 444. 
 
 22 S. E. Rep. 517; Borchsenius v. Chi- 5 Whalley v. Lancashire & Yorkshire 
 
 cago, etc., Ry. Co. (Wis.), 71 N. W. Ry. Co., L. R. 13 Q. B. Div. 131 [1884]. 
 Rep. 884; Ohio & M. Ry. Co. v. Thill- 6 Morris v. Receivers of R. Co. (C. C.), 
 
 man (111.), 32 N. E. Rep. '529. 65 Fed. Rep. 584. 
 
 3 Borchsenius v Chicago, St. P. M. & ' Taubert v. St. Paul (Minn.), 71 N. W.. 
 O. R. Co.(Wis.), 7i N. W. Rep. 884. Rep. 664. 
 
 *Hanlin v. Chicago & N. W. Ry. Co., 
 
 * See Sees. 176-179, infra. f See Wait's Engin. & Arch. Jurisp., 245-248.. 
 
121. OPERATIONS PRELIMINARY TO CONSTRUCTION. 88 
 
 things, that the openings of the draw of such bridge shall be 130 feet in the 
 clear, and that the plans shall be approved by the Secretary of War, and 
 which provides that the bridge shall not be built until such plans have been 
 approved, and the bridge has been built with openings of the draw only 125 
 feet in the clear, and no evidence is offered to show that the plans had ever 
 been submitted to, or approved by, the Secretary of War, it was held that the 
 bridge was an illegal structure and a public nuisance, and the company is 
 liable for any damages resulting therefrom. * 
 
 If it be stipulated that there should be "a draw in said bridge in the 
 channel of the river in such place as the same is deepest and most easily 
 navigable, not less than thirty feet wide, for the passage of vessels through 
 said bridge," and if the bridge be not built directly across the current, per- 
 pendicular to it, then it must leave a clear width of thirty feet open across 
 the channel, estimating with reference to its curve and the obliquity of the 
 bridge. 2 
 
 The public is entitled to the unobstructed use of every part of a navigable 
 river, from bank to bank, which at the ordinary stage of the water is of such 
 depth and accessibility, with respect to the main body of the stream, as to be 
 capable of navigation by boat, or of valuable floatage, whether such part has 
 ever been so used or whether there is any present or anticipated necessity for 
 so using it. 3 
 
 Where a railroad company, under authority from the state, constructed its 
 bridge across the inlet of a navigable river, over land owned by the state, in 
 such a way that the riparian owners above the inlet had reasonable means of 
 access to the channel of the river for boats which the inlet in its natural state 
 would float, it was held that the bridge was not an illegal obstruction, as 
 regards a riparian owner desiring to secure access to the river channel by an 
 artificial channel for use by large boats, so as to entitle such owner to 
 damages for such obstruction. 4 
 
 The person obstructing a stream may be liable to persons using it for 
 navigation, as when plaintiff was prevented from floating lumber, to market 
 for delivery, which he had already sold. 5 
 
 A large raft of saw-logs, belonging to the defendant, while being towed 
 across a navigable lake was broken up, and the logs scattered in many direc- 
 
 x Texarkana & Ft. S. Ry. Co. v. .Par- 3 Tennessee & C. R. Co. v. Danforth 
 
 sons (C. C. A.), 74 Fed. Rep. 408. See (Ala.), 20 So. Rep. 502. See Hedges v. 
 
 Gildersleeve v. N. Y., N. H. & H. R. West Shore R. Co. (N. Y. App.), 44 N. 
 
 Co., 82 Fed. Rep. 763 [1897], where the E. Rep. 691. 
 
 channel had a sloping rip-rap below low 4 Hedges v. West Shore R. Co. (N. Y. 
 
 water. App.), 44 N. E. Rep. 691; 30 N. Y. Supp. 
 
 2 Alsante v. Charlestown Bridge Co., ^reversed. And see Potter v. Ind., etc., 
 
 41 Fed. Rep. 365. See United States v. R. Co. (Mich.), 54 N. W. Rep. 956. 
 
 Rider (Dist.'Ct.). 5 Fed. Rep. 406, as to 5 Glick v. Weatherwax (Wash.), 45 Pac. 
 
 what is not a reasonable time to erect a Rep. 156. 
 drawbridge. 
 
89 DIVERSION AND OBSTRUCTION OF WATERS. 121. 
 
 tions, by an unexpected storm. Many of the logs were afterwards recovered, 
 and reasonable efforts made to recover the others, which were still floating on 
 the lake about six months afterwards, when a storm of unprecedented severity 
 and fury arose and drove some of the logs with great force against a break- 
 water constructed to protect plaintiff's railroad tracks and embankment, 
 breaking it, and letting in the water, greatly damaging plaintiff's property. 
 It was held that the defendants were not liable for such damage, though they 
 claimed the logs. 1 
 
 J New Orleans & N. E. R. Co. v. McEwen & Murray, 22 So. Rep. 675. 
 
CHAPTER IX. 
 PROTECTION OF BANKS AND STRUCTURES FROM WATERS. 
 
 131. In Protecting Bank or Structures Care and Skill must be Exer- 
 cised. A riparian owner must exercise reasonable care and skill and avoid 
 defects in the erection of a barrier to his own land, and is liable for injuries 
 to others for the want of such care and skill. 1 These cases of protection of 
 one's property from the encroachments of a stream frequently come up in 
 the protection of railroad embankments and other railroad structures. If a 
 railroad embankment be constructed in a creek's mouth so as to prevent 
 the water from flowing in its accustomed channel to the injury of another, 
 the company will be liable for such injury if it be from the direct and 
 immediate consequences of the act. 2 
 
 A riparian proprietor has no right to construct a levee which will raise the 
 water flowing in the stream at times of ordinary floods so as to endanger the 
 bridge and other structures of the railway, and will also throw such water 
 upon lands on the opposite side of the river, thereby subjecting the railway 
 company to suits for damages. 3 The fact that a riparian owner has altered a 
 bank, embankment, or structure does not in itself show a cause of action ; 
 the complaint must allege and disclose some tortious act. 4 
 
 132. Must Exercise Prudence, Foresight, and Good Judgment, A 
 riparian owner has no right to divert a stream, from any part of its accustomed 
 course, to the injury of other owners. His efforts to protect his property 
 must be confined to the protection of his land from overflow by any change 
 from the natural state of the stream, and to prevent any change in its old 
 course. He has not the right, for his own greater convenience and benefit, to 
 build anything w r hich in times of ordinary flood will throw the water on to 
 the grounds of another owner so as to overflow and injure them. 5 That a 
 dam was erected to protect one's land from an increased volume of water is 
 
 1 Grant v. McDonogh, 7 La. Ann. 447; * Koch v. Del., L. & W. R. Co. (N. J.), 
 
 Savannah, etc., R. Co. z/. Lawton, 75 24 Atl. Rep. 442. 
 
 Ga. 192. 5 Parker v. Atchison (Kan.), 48 Pac. 
 
 2 Tinsman v. Belvedere, etc., Co., 26 Rep. 631; Burwell v. Hobson (Va.), 12. 
 
 N. J. Law, 148. Gratt. 322; Koch v. Delaware, L. & W, 
 
 'Cairo, V. & C. Ry. Co. v. Brevoort R. Co. (N. J. Sup.), 24 Atl. Rep. 442. 
 (C, C.), 62 Fed. Rep. 129. 
 
 90 
 
9* PROTECTION OF BANKS AND STRUCTURES. 133- 
 
 no defense to an action by one riparian owner against another for obstructing 
 a stream by the dam. 1 
 
 The owner of land situated upon a stream of water has the right to con- 
 struct embankments thereon for the purpose of protecting it from the currents 
 of the stream or otherwise benefiting it, subject to the duty of so construct- 
 ing the same as not to occasion material injury to the land of others situated 
 upon the stream, where the same may be avoided by the exercise of ordinary 
 care, intelligence, and foresight. It is his duty, in the first instance, to 
 exercise such prudence and care as an ordinarily careful and intelligent man 
 might have exercised, to determine whether his proposed embankments would 
 cause material injury to the lands of his neighbor at the time of such floods as 
 might reasonably be anticipated at any season of the year. By material 
 injury must be understood an injury resulting in damages of a substantial 
 nature, not merely nominal, and which are, in some cases, awarded to 
 prevent a wrong from ripening into a right by a lapse of time. The use of 
 streams and their water is, among riparian proprietors, a matter of common 
 right, and an invasion of the individual right of one cannot be appreciated 
 until some act is done by another in excess of the common right. 2 
 
 Where an owner constructs an embankment for the protection of his own 
 lands, and the same occasioned substantial injury to the lands of his 
 neighbor, and it might have been reasonably anticipated as one of the probable 
 results of its action upon the currents of the stream at the time it was con- 
 structed, and would have been anticipated by a man of ordinary prudence 
 and intelligence, the owner is liable in damages for the injury so occasioned; 
 otherwise not. Where it appears, from the subsequent action upon the current 
 of a flood that might reasonably be expected to recur in the course of the 
 seasons, that it causes, and will continue at the time of such floods to 
 occasion, substantial injury to his neighbor, it then becomes his duty to 
 abate or so modify it as to avoid such injury; and if he fails to do so, he 
 must, from the time its tendency to do injury became apparent, respond in 
 damages awarded for the injury occasioned for the time just stated. 8 
 
 133. Return of Stream to its Old Channel. If, during times of flood, the 
 stream breaks from its natural course and encroaches upon the land of a 
 riparian owner, he may, by embankments, piling, and cribwork, return the 
 stream to its old channel. During freshets streams often cut through the 
 banks and make new channels where they would continue to run if not 
 prevented. In such cases the owner through whose land it has cut may for 
 "his own protection erect a barrier across the new channel in order to confine 
 the waters to their original course. He should not build such a barrier into 
 the stream so as to interfere with its original flow, nor should he build it 
 
 1 Bliss v. Johnson (Cal.), 18 Pac. Rep. 529 [1886]; Hunter v. Pelham Mills (S. 
 785 [1888] " C.j, 29 S. E. Rep. 727 [1898]. 
 
 2 Cranford v. Rambo (Ohio), 22 Reptr. 
 
134- OPERATIONS PRELIMINARY TO CONSTRUCTION. Q2 
 
 higher than the original bank if such extra height will cause damage to his 
 neighbors. l 
 
 Piling, cribwork, or a dam across the newly made channel should be 
 built before the right has been lost by acquiescence in the flow in the new 
 channel. * * 
 
 134. Protection of Land from Encroachment of Stream. Embankments 
 or barriers may be erected by a riparian owner to protect his land from an 
 overflow, or to /prevent a change in the natural course of the stream, or 
 the making of the channel. He may take such steps for the protection of 
 his land and for the keeping of the channel in its old course, if he does not 
 thereby throw the waters upon another's land. He must take care not to 
 do injury to his neighbor even in the case of freshets and ordinary floods. 3 
 
 If a change in the course of a stream be threatened, he may build a bulk- 
 head as high as the original bank was before it was washed away. 4 Each 
 riparian owner has a right to the enjoyment of the waters of a stream as it 
 flows by his premises, and a right also to modify and limit the current upon 
 the property as will best subserve his own notions of propriety. He may 
 construct and maintain embankments to protect any part of his land from 
 being injured by overflowing of the stream in times of high water. His right 
 to deal with the stream and control its current must be exercised, however, 
 with a just regard to the rights of others. He may not divert the waters of 
 the river from his lands and cause them to flow over, upon, or against those 
 of his neighbor to the latter' s substantial injury, no matter how beneficial it 
 may be to his own lands. 5 
 
 To what extent a riparian owner may go to protect himself will depend of 
 course upon the peculiar circumstances of each case. It has been held that 
 he was not answerable for damages caused by protecting himself from extraor- 
 dinary or unusual floods. It has been held that a canal company, fearing a 
 flood and overflow of a river into the canal, may insert planks in the canal 
 embankment to keep the overflowing water out of the canal. In a case 
 where a canal company had adopted such a means of protection and the 
 water found its way into the canal and by reason of the planking rose to a 
 greater height than it would otherwise have done, to the injury of the owner, 
 it was held that the canal company was not liable, as it had done nothing to 
 
 1 Pierce v. Kinny (N. Y.), 59 Barb. 56; (111. Sup.), 32 N. E. Rep. 527; Collins v. 
 Parker v. Atchison (Kan.), 48 Pac. Rep. Macon, 69 Ga. 542; Knight v. Albemarle 
 631. R. Co. (N. C.), 15 S. E. Rep. 929; Die- 
 
 2 Woodbury v. Short, 17 Vt. 387. drich v. N. W. Union R. Co., 42 Wis. 248; 
 
 3 Parker v. Atchison (Kan.), 48 Pac. Miller v. Milwaukee, 14 Wis. 642. 
 Rep. 631; Barnes v. Marshall, 68 Cal. 4 Barnes v. Marshall, 68 Cal. 569. 
 569; Boston Mfg. Co. v. Burgin, 114 5 Cranford v. Rambo, 44 Ohio St. 279; 
 Mass. 340; Shelbyville Tpk. Co. v. Green, Parker v. Atchison (Kans.), 48 Pac. Rep. 
 99 Ind. 205; Cairo, etc., Co. v. Stevens, 631. 
 
 73 Ind. 278; Ohio & M. Ry. Co. v. Webb 
 
 * As to what length of time will be considered an acquiescence, see Sees. 500, 
 661-681. 
 
93 PROTECTION OF BANKS AND STRUCTURES. 136. 
 
 affect the natural channel of the river, but had only tried to protect itself 
 against a threatening disaster which was common to both. 1 
 
 135. Riparian Owners Have Equal Rights to Protect their Lands. 
 When a riparian owner has sought to protect his land by an embankment 
 which causes more than the natural flow upon the land of a neighbor, he 
 cannot complain if his neighbor also protects himself by embankments and 
 dams and throws water back upon him. 2 To what extent two opposite 
 riparian owners could carry this warfare would probably depend upon its 
 effect upon up-stream riparian owners. Such a warfare should not be 
 encouraged by the courts, for it could not be persisted in without serious- 
 injury to other interests. 3 
 
 136. Protection Against Overflow in Times of Flood. In wide valleys 
 where flood-waters cover large tracts of land, the water of such overflowing 
 may be considered as surface-water, and a landowner incurs no liability in 
 protecting his land from such waters by throwing them back upon an upper 
 riparian owner. 4 * 
 
 The owner of a railroad right of way may protect it by embankments from 
 surface-water which would otherwise flow on it from adjoining lands. 5 If a 
 landowner has erected barriers to keep the overflow upon others' lands from 
 coming upon his lands, he must also take care of the waters from rain and 1 
 snow and surface drainage which come upon his lands. If he cannot within 
 the limits of his lands turn them into a natural watercourse, it may be a 
 problem to get rid of them. He may not collect them in a well-defined 
 watercourse and discharge them upon the land of his neighbor, 6 nor against 
 the land of a lower riparian owner. 7 The overflow of flooded lands is 
 regarded as a common enemy which each proprietor may protect himself 
 against as he will. 8 
 
 A railway company is not liable for damage caused by water thrown back 
 upon land, by the construction of its embankments, from depressions in the 
 ground, in which water flows only when a neighboring river overflows its 
 banks. 9 
 
 An owner of flat lands in a valley has a right to protect himself from 
 overflow from the river in times of flood, even though by so doing he deepens 
 the water over the lands of his neighbors. A city may protect itself from 
 
 1 Nield v. London, etc., R. Co., L. R. 5 Jean v. Pennsylvania Co. (Ind. App.), 
 10 Exch. 4; Mailhot v. Pugh, 30 La. 36 N. E. Rep. 159. 
 
 Ann. 1359. 6 Cairo, etc., R. Co. v. Stevens, 73 Ind. 
 
 2 Merritt v. Parker, i N. J. L. 460; Wil- 278. 
 
 helm v. Burleyson, 106 N. C. 381. 7 See Rudel v. Los Angeles Co., 50 Pac. 
 
 3 Avery v. Empire W. Co., 82 N. Y. Rep. 400. 
 
 582; Harding v. Whitney, 40 Ind. 379 8 Cairo, etc., R. Co. v. Stevens, supra. 
 
 4 Schlichter v. Phillipy, 67 Ind. 201; 9 New York, C. & St. L. R. Co. v. Speel- 
 Benthal v. Seifert, 77 Ind. 302: Abbott man (Ind. App.), 40 N. E. Rep. 541. 
 
 v. Kansas City, etc., R. Co., 83 Mo. 271. 
 
 * Set Sees. 171-200, Surface-waters, infra. 
 
137- OPERATIONS PRELIMINARY TO CONSTRUCTION. 94 
 
 overflows by building levees. 1 One who plants trees which prevent large 
 quantities of Driftwood and other materials from being carried down-stream 
 is not liable to an up-stream riparian owner for the increased flooding of his 
 land nor the floating of driftwood upon it. a 
 
 137. Deflection of Stream Against Lower Kiparian Owner. If the size 
 and capacity of the culverts is insufficient to carry off and properly discharge 
 the waters of a creek in times of flood, a railroad company will be liable if the 
 abutments of the structure are placed obliquely to the course of the stream 
 in such a manner as to turn the water upon the banks. If floods erode and 
 wash away the same, the company will be liable, especially where it appears 
 that the bridge could have been erected with safety to the railroad company, 
 so as not to injure the same lands, at an additional expense. 3 Abutments 
 should be so placed as not to deflect the currents of the stream against other 
 structures or against lands subject to errosion. 4 If an embankment built in 
 front of one's premises and extending somewhat into a stream's channel 
 forces water during an unusual freshet on to the land of the opposite shore, 
 wearing away the land, the owner of the embankment is liable. 5 
 
 The law applicable to a case where an owner of land on one side of a 
 navigable river, which forms the boundary between two states, has by artificial 
 structures turned the waters upon or against the land of an owner on the 
 opposite side of the river is that based upon the general principles of the 
 Jaw. The decisions of the state courts are not binding on the federal courts 
 in such a case. 6 
 
 138. Measure of Damages for Deflection of Waters. The measure oi 
 damages for injuries to land by the washing of the soil is held to be the differ- 
 ence in value of the land before, and after the overflow, and of the improve- 
 ments, their actual cash value, or such sum as would, if properly expended, 
 restore the premises to their former condition; and if the beneficial enjoyment 
 of the premises has been interfered with by the destruction of the improve- 
 ments, the rental value for the time necessary to restore the improvements 
 should be added to the value of the property destroyed. 7 
 
 A judgment for consequent damages will not bar a subsequent action for 
 damages caused by keeping the structure in bad condition. 8 It may be 
 
 1 Hoard z/. Des Moines, 62 Iowa 326; 31 N. E. Rep. 997; Rogers 2/. Coal R. B. 
 Gray v. McWilliams, 98 Cal. 157. And & D. Co. (W. Va.), 23 S. E. Rep. 919, a 
 see Lamb v. Reclamation Dist., 73 Cal. boom; Koch v. Del. L. & W. R. Co. 
 125. (N. J.), 24 All. Rep. 442. 
 
 2 Taylor v. Fickas, 64 Ind. 167. 6 Cairo, etc., R. Co. v. Brevoort (C. C.), 
 
 3 Spencer v. Hartford, etc., R. Co., 10 62 Fed. Rep. 129. 
 
 R. I. 14; Wabash R. Co. v. Sanders, 58 7 Graves v. Kansas City, P. & G. R. 
 
 111. App. 213; Shahan v. Alabama, etc., Co., 69 Mo. App. 574; Gallagher v. 
 
 R. Co. (Ala.), 22 So. Rep. 449, 509. Kingston W. Co. (N. Y.), 25 App. Div. 
 
 4 Hartman v. Pittsburg I. P. Co. (Pa. 82; Sweeney v. Montana Cent. Ry. Co. 
 Sup.), 28 Atl. Rep. 145; De Baker v. (Mont.), 47 Pac. Rep. 791. 
 
 Southern Cal. Ry. Co. (Cal.), 39 Pac. Rep. 8 Cleveland, etc., Ry. Co. v. Nuttall, 
 
 610. 59 HI. App. 639. 
 
 Hartshorn v. Chaddock (N. Y. App.), 
 
95 PROTECTION OF BANKS AND STRUCTURES. 138. 
 
 shown that, at small expense for rip-rap, the injury could have been avoided 
 or materially diminished. 1 The situation of the property, as of a mill with 
 respect to custom and trade and the productiveness of the neighborhood in 
 grain crops, may be shown. 2 
 
 Another source of injury to riparian property owners caused by obstruc- 
 tions is the filling up of the channel with sand and silt where the water set 
 back is dead and still. If such injury result from the maintenance of a dam 
 or other obstruction, the owner thereof will be liable. 3 
 
 1 Sweeney v. Mont. Cent. Ry. Co. Y.), 25 App. Div. 82. 
 
 (Mont.), 47 Pac. Rep. 791; but see Austin, 3 Cline v. Baker (N. C.), 24 S. E. Rep. 
 
 etc., R. Co. v. Anderson (Tex.), 19 S. W. 516; Cooley v. McKinney (Ga.), 14 S. E. 
 
 Rep. 1025. Rep. 190; and see Jones v. DeCoursey 
 
 * Gallagher v. Kingston W. Co. (N. (Sup.), 42 N. Y. Supp. 578. 
 
CHAPTER X. 
 
 SUPPLY OF WATER AND ICE. WATER COMPANIES AND 
 WATER-WORKS. 
 
 141. Ownership and Control by Municipal Corporations. A municipal 
 corporation has no right to incur expenditures for public water-works unless 
 the power is conferred by legislative authority. Like any corporation it is a 
 creature of statutory existence. It can exercise no powers or rights other 
 than those conferred by statute either expressly or by fair implication. 
 Water-works for supplying cities and towns with water are for public municipal 
 purposes, and the legislature may confer authority upon municipalities to 
 erect, operate, or purchase such works, and to incur expenditures, levy taxes, 
 and issue bonds for the payment thereof. A power to make all contracts 
 which may be deemed necessary for the general welfare of the city has been 
 held to include the power to provide water- works. l 
 
 142. Authority Conferred by Certain Statutory Provisions. A power 
 to construct a system of water-works has been held to authorize the contract 
 to be made without passing ordinances authorizing the works to be 
 constructed. 2 Power to provide for the ordinary expenses of a town authorizes 
 it to procure a supply of water in a public square, and the city council may 
 constitute themselves the judges of the mode best calculated to accomplish 
 that object. 3 Power to provide for maintenance of fire-engines for the 
 extinguishment of fires has been held to confer incidental power to make 
 provisions by reservoirs or other means for the supply of water, without 
 which the engines would be useless. 4 The time in which a city may purchase 
 a franchise of a water-works company must be exercised within the limit of 
 time fixed by the statute. 5 
 
 On the other hand it has been held that a charter which contained a 
 general -welfare clause conferred no power upon the city to grant a franchise 
 to the water company. It was held that even though a city had power, by 
 
 I 2g Amer. & Eng. Ency. Law 2, and 163. For powers under general au- 
 
 cases cited. thority to make contracts for the con- 
 
 2 The Nat. Tube Wks. Co. v. Chamber- struction of water-works, see Rome z>. 
 
 lain, 5 Dak. M Cabot, 28 Ga. 50. 
 
 'Livingston v. Pippin, 31 Ala. 542. 5 Ziegler z/. Chapin, 126 N. Y. 342. 
 
 *Hardy v. Waltham (Mass.), 3 Met. 
 
97 SUPPLY OF WATER AND ICE. H3- 
 
 virtue of its duty to care for the public welfare and safety, to contract for the 
 supply of water, yet it could not without express legislative authority 
 construct, maintain, or operate water-works. Under authority to provide for 
 a supply of water, a city may contract with a water company for that purpose; 
 but the reverse of this is not true, namely, that authority to enter into a con- 
 tract with a party to supply the city with water did not authorize the erection 
 of water-works owned by the city. A general statute conferring the power 
 upon all cities and incorporated towns to construct water-works has been held 
 to apply to cities acting under special charters as well as under the general 
 corporation law. 1 
 
 143. Powers Conferred by the Legislature upon Water Companies. 
 The legislature may confer upon a city or a company organized for that pur- 
 pose the right to condemn private property for a water-supply. It may 
 authorize the erection of a dam in a navigable river, provided such a dam does 
 not materially obstruct navigation. a Not only may lands be condemned, but 
 water may be taken from public streams or ponds, provided just compensation 
 is made to riparian owners. If the city is a riparian owner upon the stream, 
 it may take only a reasonable amount of the water, the same as any riparian 
 owner, and will be liable to those injured for any excess taken. 3 If a water- 
 works supply a greater quantity than is needed for the present public use, the 
 city may, it seems, dispose of the surplus to outsiders without destroying the 
 public character of the works. 4 * 
 
 A statute giving the city authority to provide water and so forth, authorizing 
 the city council to make sucn ordinances as might be deemed necessary, was- 
 held to give the city power to acquire all water rights necessary to supply the 
 inhabitants with water. If a riparian owner stands by and permits a city to 
 erect works for a water-supply without first paying him damages, and, by 
 taking water from the stream, diminish his mill-power, it creates an equitable 
 estoppel which will prevent him from securing the protection of an injunction, 
 but will leave him to assert his rights at law. 5 f 
 
 When, however, water from springs has been appropriated under an act 
 authorizing the trustees of a village to supply the village with water, and no 
 provisions for indemnifying riparian owners have been made, it was held that 
 an injunction might be granted to prevent any proceeding to divert the 
 stream until provision was made for compensation to those injured. 6 
 
 The diversion of waters of a stream or spring will not, it seems, be 
 
 I 2g Amer. & Eng. Ency. Laws. En S- Corp. Cas. 33 [1891]. And see Po- 
 
 2 States. Eau Claire, 40 Wis. 533; Pom- cantico W.-w. Co. v. Bird (N. Y. App.), 
 
 pelly v. Green Bay C. Co., 13 Wall. (U. 29 N. E, Rep. 246. 
 
 S.) 166; 29 Amer. & Eng. Ency. Law 5. 5 Logansport^,, Uhl, 99 Ind. 531. 
 
 3 ^Etna Mills v. Waltham, 126 Mass. 6 Gardner v. NewT5trrg^^JYM 2 Johns. 
 
 422> Ch. 162. And see Smith 
 
 4 State v. Newark (N. ].), 40 Amer. & 92 N. Y. 463- 
 
 * See Sees. 60-63, supra. t See Secs - 661-670, infra. 
 
144- OPERATIONS PRELIMINARY TO CONSTRUCTION. 98 
 
 allowed unless it is clearly necessary for the public good, and the question of 
 necessity should be controlled by the court. There should be satisfactory 
 evidence of the need. 1 Where the waters of the creeks from which a water 
 company receives its supply are insufficient in the summer-time to supply the 
 present wants of the inhabitants of a growing city to whom the company 
 furnishes water, the city shows a necessity for condemning the waters of a 
 stream sufficient in quantity and superior in quality, all other streams nearer 
 the city being used by the water company. 2 
 
 The open, notori'ous, exclusive, uninterrupted, and adverse use of waters 
 from a pond, stream, canal, or aqueduct for the prescriptive or statutory 
 period creates a right to the enjoyment of such waters to the extent of such 
 use. 3 * One cannot acquire a prescriptive right to pollute a stream after it 
 has been appropriated for the purpose of supplying a city with pure water. 4 } 
 
 144. Negligent Construction of Water-works. In the operation of water- 
 works by a city, a municipal corporation is regarded as a private corporation, 
 and therefore is liable for injuries resulting from the negligent construction and 
 operation of its works. The city does not, however, insure its inhabitants 
 against damages from the construction and operation of its works. Liability 
 can only arise from a failure to exercise reasonable care and vigilance. 5 
 
 The owner of the bed of a river, who also had the right to divert its waters 
 and sell them to citizens, has been held not liable for damages caused to 
 private property due to the sudden overflow of the waters of the river. 6 
 
 145. Negligence in Laying and Maintaining Pipes, etc. A city has 
 been held liable for injuries to travelers resulting from negligence in laying 
 and maintaining water-pipes in its streets. Such liability doubtless grows out 
 of the fundamental principle of the law, that a city is bound to maintain its 
 streets in a reasonable and safe condition. If the street is undermined by 
 water escaping from the pipes laid therein, and a traveler sustains injury, the 
 city may be held liable. 7 
 
 Where water-plugs, boxes, and covers project above the grade of the 
 street, causing persons or horses to stumble and fall over them, or vehicles to 
 be upset, if such projections are due to negligence or want of ordinary care 
 in construction, the company is liable for the injury sustained. 8 It was so 
 held when the projection was due to the highway being worn away. 9 If 
 
 1 State v. Morris Eq., 26 N. J. L. 495. 5 2Q Amer. & Eng. Ency. Law 8; Rigdon 
 
 2 Santa Cruz v. Enright (Cal ), 30 Pac. v. Temple W.-w. Co. (Tex.), 22 S. W. 
 
 "Rep- 197; Pocantico W. Co. v. Bird (N. Rep. 828, where a water-tower collapsed. 
 
 Y. App.) 2 9 N. E. Rep. 246; Spring Val. See Wait's Engin. & Arch. Jurisp., Sees. 
 
 W. Co. v. San Mateo W., 64 Cal. 123. 641-646. 
 
 3 Smith v. Green (Cal.), 41 Pac. Rep. 6 Moore v. Los Angeles, 72 Cal. 287. 
 1022; Bucklin v. Truell, 54 N. H. 122 7 Hand v. Brookline, 126 Mass. 324. 
 [1873]; Cole v. Bradbury, 86 Me. 380; 8 2g Amer. & Eng. Ency. Law 9. 
 Alhambra W. Co. v.' Richardson (Cal.), 9 Kent v. Worthing, L R. 10 Q. B. Div. 
 14 Pac. Rep. 379. 118. 
 
 4 Martin v. Gleason, 139 Mass. 183. 
 
 * See Sees. 682-690, infra. f See Sees. 201-230 and 682-^85, infra. 
 
99 SUPPLY OF WATER AND ICE. 14,7. 
 
 reasonable care and diligence have been exercised in laying and maintaining 
 the pipes, valves, boxes, etc., the water company will not be liable for injuries 
 resulting from their projection. 1 For injuries due to the frightening of a 
 horse by a stream of water thrown from a city hydrant across the highway, 
 the city was held liable. 2 
 
 146. Private Water Companies. Power to supply water to any particular 
 locality may be delegated by the legislature to an individual or a corporation 
 unless such delegation is expressly forbidden by the constitution. The powers 
 conferred must be within the provisions of the general laws of the state. 
 Such a corporation cannot in general become active or exercise the powers 
 contemplated by its organization, except on special and direct authority 
 conferred by the state. To condemn and appropriate sources of water- 
 supply, and to enter upon public streets or roads for the laying of pipes 
 or mains therein, requires express permission from the state or the muni- 
 cipality. 3 
 
 Water companies being the beneficiaries of important and valuable 
 franchises and privileges from the state, and the purpose for which they were 
 created being for public purposes, they are called public corporations and are 
 subject in their operations to the limitations and regulations which the legis- 
 lature may impose upon such bodies in order to protect public interests. 
 
 A water company may own and exercise franchises in other states than 
 that in which it is incorporated, although not expressly authorized so to do 
 in its charter. 4 
 
 147. Exclusive Franchises to Water Companies. Unless prohibited by 
 the constitution of the state, the legislature may grant to a private corporation 
 the exclusive right to lay pipes and mains through the streets of the city, and 
 to supply it and its inhabitants with water both for general use and for fire 
 protection. A constitutional inhibition against the creation of perpetuities 
 and monopolies has been held to forbid the grant of such an exclusive 
 privilege even for a term of years. 5 The city has no power to grant an 
 exclusive right of this character, unless authorized to do so in express terms 
 by the legislature. The validity of an ordinance conferring such an exclusive 
 right may be contested by any company or individual claiming a similar 
 right, but, it seems, not by a taxpayer. 6 
 
 Under an act 7 which authorized a city to grant a right to construct and 
 maintain water-works therefor, and also to construct and maintain pipes 
 
 1 Terry v. New York, 80 Bosw. (N. Y.) 5 Brenham v. Brenham W. Co., 67 Tex. 
 504; Staples v. Dickson, 88 Me. 362^- _542; Long v. Duluth (Minn.), 51 N.. W. 
 
 2 Aldrich v. Tripp, IT R. I. 141. See Rep^i^^w/ see Bartholomew v. Aus- 
 Topeka W. Co. v. Whiting, 50 Pac Rep. tin (Tex. 177~S^C^C.A.), 85 Fed. Rep. 
 877 359 [1898]. ~ ~ 
 
 s 29 Amer. & Eng. Ency. Law, n. 6 Grant v. Davenport, 36 la. 39 
 
 * Dodge v. Council Bluffs, 57 la. 560; v. Council Bluffs, 57 la. 560 
 
 Peabody v. Westerly W.-w. Co. (R. I.), 7 Laws Kan. 1891, p. 126, 3. 
 
 37 All. Rep. 807. 
 
148. OPERATIONS PRELIMINARY TO CONSTRUCTION. IOO 
 
 under the streets to convey water to other cities, and which provided by 
 another section that no grant under the preceding section should continue 
 more than twenty years, that any such grant might be revoked at any time 
 after ten years, and that the city might acquire the water-works property, 
 it was held that the first section contemplated two distinct matters 
 construction of water- works in the city, and laying pipes across the city; 
 that the latter section related only to the former, and placed no limit to the 
 duration of a grant under the latter; hence an accepted grant under the 
 latter could not be revoked. 1 * Exclusive rights granted by a government 
 in which the public are interested are not in favor with the courts, and 
 any act of the legislature which has the effect to impair future action on 
 the part of the legislature or city council will be construed most favorably 
 to the state. 2 If any ambiguity exists, or if there be any reasonable doubt 
 as to the power granted, or as to whether a privilege be exclusive, it will 
 be construed against the corporation or individual claiming such exclusive 
 privilege. A contract granting to a water company the privilege of laying 
 its mains in the streets, with a covenant by the town to pay hydrant rentals, 
 is to be strictly construed in favor of the public, and therefore should not be 
 taken as an exclusive grant. 3 When a right has been granted and the grantee 
 has accepted it and acted upon it, it constitutes a contract protected by the 
 federal constitution against impairment by a state legislature. 4 
 
 An exclusive franchise granted to a corporation to furnish water to a city 
 has been held to be violated by a grant to an individual in the city of a right 
 to supply his own premises with water in a like manner. 5 A grant of the 
 exclusive right to supply a municipality from a designated source for a term 
 of years was held not impaired by grant to another party to supply it with 
 water from a different source. 6 
 
 148, Quantity and Quality of Water-supply. Under a contract to supply 
 ''well-settled and wholesome water," a city need not accept and pay for 
 water unless it is of the quality called for by contract. Occasional use by a 
 city of water actually furnished does not necessarily constitute an acceptance. 
 There must be a fair opportunity for examination and objection before 
 acceptance can be inferred. 7 To recover for water furnished, a water company 
 must prove substantial compliance with its contracts, not only with reference 
 to the quantity of water furnished, but as to the quality. 8 
 
 1 National W. Co. v. Kansas City (C. 5 New Orleans Water Co. v. Rivers, 
 C.). 65 Fed. Rep. 691. 115 U. S. 674; St. Tammany W.-w. v. 
 
 2 St. Anthony Falls W. P. Co. v. Board, New Orleans W.-w., 120 U. S. 64. 
 
 1.68 U. S. 349. fi Stein v. Bienville W. S. Co., 141 U. S. 
 
 8 Long Island Water-supply Co. v. City 67. 
 
 of Brooklyn, 17 Sup. Ct. Rep. 718; Wes- 7 Winfield W. Co. v. Winfield, 51 Kan. 
 
 terly W.-w Co. v. Westerly (C. C.), 80 104. 
 
 Fed. Kep. 611. 8 See Adrian W.-w. v. Adrian, 64 Mich. 
 
 4 29 Amer. & Eng. Ency. Law 13. See 584; State Trust Co. v. Duluth (Minn.), 
 
 Wait's Engin. and Arch. Jurisp., Sec. 144. 73 N. W. Rep. 249 [1897], 
 
 * See Sees. 841-860, infra. 
 
101 SUPPLY OF WATER AND ICE. 148. 
 
 A resolution of the common council reciting that water-works satisfy the ' 
 test required by the ordinance does not prevent the city that has granted the 
 privilege for a specific time to construct water-works and furnish water from 
 maintaining an action to rescind the contract, the works having proved 
 inadequate, and the water-supply deficient both in quality and quantity. 1 
 If, however, a city has accepted and used water for nearly a year without 
 objection, and the water appears to be good and is believed to be good, the 
 city cannot then claim as a defense that the water was not good, and refuse 
 to pay anything for it. 2 
 
 A contract for water-supplies entered into by a city at the same time 
 an invalid franchise was granted is not separable from the grant, but both 
 are invalid ; the city, however, is bound to pay for the amount of water actually 
 received and used, though the contract is invalid. 3 The invalidity of the 
 exclusive grant by a city of the right to use its streets to conduct water to its 
 inhabitants is no defense to an action for rents the city promised to pay for 
 the use of the hydrants after the works have been constructed according to 
 the contract and have been accepted by the city. 4 
 
 When a company has undertaken to furnish a city with filtered water, 
 equity may decree a specific performance of the contract, as an action for 
 damages would not afford adequate relief, and the decree and forfeiture of the 
 franchise would be futile, as it would require the erection of new works. 5 It 
 is the duty of a city in its corporate capacity to enforce the terms of the 
 contract as to the quality of the water to be supplied not only to the city but 
 to private consumers. Pure water has been held to be water that is whole- 
 some and ordinarily pure, and not pure in the chemical or abstract sense. 6 
 
 A contract for artesian-well water is not satisfied by supplying water from 
 other sources, although it may be equally good or better. 7 
 
 Where the water furnished for the use of inhabitants is utterly unfit for 
 domestic use or for use by domestic animals, and is so destructive to pipes 
 and boiler-flues as to be unsafe for use for steam purposes, it is proper to 
 enjoin the company from collecting water-rents for other purposes than the 
 extinguishing of fires and the flushing of pipes and sewers. 8 
 
 The fact that a water company, under its contract with a city, has the 
 
 1 Galesburg v. Galesburg W. Co., 34 6 Commissioners v. Towanda W.-w. 
 Fed. Rep. 675; Farmer's L. & T. Co. v. Co. (Pa.), 15 All. Rep. 440 [1888]. See 
 Galesburg, 133 U. S. 156. Palestine W. & P. Co. v. Palestine (Tex.), 
 
 2 Burlington Water-works Co. v. Bur- 41 S. W. Rep. 659; State Trust Co. v. 
 lington, 43 Kan. 275; Wilson v. Charlotte Duluth (Minn.), 73 N. W. Rep. 249 [1897]. 
 (N. C.), 14 S. E. Rep. 961. 7 Foster v. Joliet, 27 Fed. Rep 899. 
 
 3 Nicholasville W. Co. v. Board (Ky.), 8 Brymer v. Butler Water Co. (Pa. 
 36 S. W. Rep. 549; Port Jervis W. Co. v. Sup.), 33 All. Rep. 707; State Trust Co. 
 Port Jervis (N. Y. App.), 45 N. E. Rep. v. Duluth (Minn.), 73 N. W. Rep. 249 
 388. [1897]; Brace v. Pa. Water Co., 7 Pa. 
 
 4 Illinois T. & Sav. Bank v. Arkansas Dist. Rep. 71 [1897]. But see Wilson v. 
 City (C. C. A.), 76 Fed. Rep. 271. Charlotte (N. C.), 14 S. E. Rep. 961; and 
 
 5 Burlington v. Burlington W. Co., 86 Du Bois v. Du Bois W. Co. (Pa. Sup.), 
 la. 266. 35 All. Rep. 248. 
 
149- OPERATIONS PRELIMINARY TO CONSTRUCTION. IO2 
 
 right in case of fire to pump unfiltered water through its pipes, does not 
 excuse it from its failure to filter the water at other times, according to the 
 contract. The fact that a filter put in by the company was adequate wher 
 its works were constructed does not excuse it from putting in a new one after 
 the old one has become inadequate by reason of the city's growth and the 
 consequent increase in the demand for water. 1 
 
 A contract between a city and a water company whereby the latt'er agrees 
 to furnish water for the extinguishment of fires does not give a private 
 person whose property is burned up through failure to furnish water any 
 right of action against the company, since he is no party to the contract. 2 
 This is so even though the company has expressly agreed / to be liable for 
 damages for injuries caused by its failing to furnish water adequate to ex- 
 tinguish all fires. 3 
 
 Under a contract to supply water in sufficient quantity and force to afford 
 protection against fires, the pumps to be capable of working against a specified 
 pressure when necessary for fire protection, and to be so arranged as to work 
 singly or together as required, furnishing direct pressure, etc., the company 
 is bound to take notice of such fires as it would be negligence not to know 
 of in view of its opportunity of information and the nature of its business, no 
 fomal demand for direct pressure being necessary. An acceptance by the 
 city of mains smaller than the maximum size specified will not relieve the 
 company from its obligation to supply the stipulated quantity and force of 
 water. 4 
 
 149. Public Character o Water Companies. A water company which has 
 been authorized by the state, through its legislature, to take water in which 
 the public has rights and interests, and which has been authorized to occupy 
 public streets and ways, is a ^on-public corporation, 5 and the operation of its 
 water-works is a public one. Every inhabitant of the town along the lines of 
 its pipes can obtain water if he desires it. The fact that the town does not 
 use the water in its public buildings or to supply hydrants does not alter its 
 public character. 6 
 
 A company incorporated for the purpose of supplying a city and its 
 inhabitants with water, and which by ordinance has been granted the privilege 
 of laying its pipes through the streets, with no conditions imposed except 
 that its pipes shall be laid in a certain manner, and that it shall in no case 
 
 1 Burlington v. Burlington Water Co. Greensboro W. -supply Co. (N. C.), 32 S. 
 
 (la.), 53 N. W. Rep. 246. E. Rep. 720 [1899]. 
 
 Ilouee ti Houston W. Co. (Tex.), 22 3 Howsmon v. Trenton W. Co. (Mo. 
 
 S. W. Rep. 277; Mott v. Cherryvale W. Sup.), 24 S. W. Rep. 784. 
 
 & Mfg. Co. (Kan.), 28 Pac. Rep. 989; 4 Light, H. & W. Co. v. Jackson (Miss.), 
 
 Bush v. Artesian Hot & Cold W. Co. 19 So. Rep. 771. 
 
 (Idaho), 43 Pac. Rep. 69; Fitch v. Sey- 5 City W. Co. v. State (Tex.), 33 S. W. 
 
 mour W. Co. (Ind.), 37 N. E. Rep. 982; Rep. 259. 
 
 Akron W. Co. v. Brownless, 10 Ohio Cir. 6 Smith v. Inhabitants of Lincoln 
 
 Ct. R. 620. But, see contra, Garrell v. (Mass.), 49 N. E. Rep. 743 [1898]. 
 
103 SUPPLY OF WATER AND ICE. 1 5 1. 
 
 charge more than a certain amount for water, must furnish water to any person 
 on a street along which it has a pipe, though that pipe was laid for certain 
 persons, who paid therefor under an agreement that if it was used for supply- 
 ing water to any one else, it should be paid for by the company. 1 
 
 The question whether an applicant for water living outside the city is 
 within a reasonable distance from the main pipes is one for the courts, and 
 cannot be determined by an arbitrary rule adopted by one party alone. 2 
 
 150. Rules and Regulations of Water Company. A water company 
 must conduct its business in a manner that shall be equitable and just to its 
 patrons. It cannot adopt and enforce unjust and unreasonable rules to the 
 detriment of the public or to individual members of a community. There 
 should be no discrimination. Parties requiring or desiring water should be 
 governed by equitable and reasonable rules and requirements. 
 
 A rule that permitted the water commissioners to shut off the supply of 
 water to a building when the occupant refuses to pay, at the rates fixed by 
 their rules, for water used in excess of the quantity thereby allowed, has been 
 held to be reasonable, when a contract exists between them and one who 
 has been made aware of their rules by seeing the same printed on his bills. 
 An injunction cannot be issued to restrain them from doing so. 3 A rule 
 which requires water-rates to be paid quarterly, adds a penalty of five per 
 cent in case of default of payment for ten days, and provides that after a 
 default for fifteen days the water shall be shut off from the premises, has been 
 held a reasonable regulation. 4 
 
 Some states give liens against the house and lot for water-rents not paid. 5 
 Regulations, under such acts, which require the house-owner to pay the water- 
 tax, instead of the tenant who uses the water, have been held reasonable. 6 
 
 151. Regulation of Rates or Rents for Water. The legislature may by 
 enactment, or cities, if so empowered by it (or if such power has been 
 reserved by a city in consideration of a right of way, etc.), may by ordinance 
 fix the rates to be charged by water companies. 7 Such laws or ordinances 
 have been held not unconstitutional in depriving the company of its property 
 without due process of law, if the rates fixed be reasonable and allow a just 
 compensation which may be inquired into by the court. 8 
 
 When the rates have been fixed by the governing body of a municipality, 
 it is within the province of the courts to review such action to the extent, at 
 
 1 Haugen v. Albina L. & W.Co. (Oreg.), 243. 
 
 28 Pac. Rep. 244. 6 Kelsey v. Board Marquette (Mich.), 
 
 2 West Hartford v. Board (Conn.), 36 71 N. W. Rep. 589. 
 
 Atl. Rep. 786. 7 San Diego W. Co. v. San Diego (Gal ), 
 
 3 Brass v, Rathbone, 153 N. Y. 435; Al- 50 Pac. Rep. 633, 693^1897]; Bancroft v. 
 toona v. Shellenberger, 6 Pa. Dist. Rep. Wall. (Com. PI.), 6 Ohio Dec. 22. 
 
 544 [1897]. 8 San Diego W. Co. v. San Diego (Cal.). 
 
 4 Tacoma Hotel Co. v. Tacoma L. & 50 Pac. Rep. 633; Shaw v. San Diego 
 
 W. Co. (Wash.), 28 Pac. Rep. 516. W. Co. (Cal.), 50 Pac. Rep. 6q^; Brymer 
 
 5 Laws of Pennsylvania, Act May 22, v. Butler W. Co. (Pa.), 36 Atl. Rep. 249. 
 1889; Laws of Michigan 1869, Act No. 
 
l6l. OPERATIONS PRELIMINARY TO CONSTRUCTION. 1 04 
 
 least, of ascertaining whether the rates so fixed will furnish some reward for 
 the property used and the services furnished. 1 However, an act that gives a 
 court visitorial powers as to water companies, and provides that any customer 
 may complain by petition of the charges for water, and which authorizes the 
 court to determine the reasonableness of the charges and decree that they be 
 decreased, does not give the court jurisdiction to prepare a general tariff of 
 water-rates, and require companies to furnish water at such rates. 2 
 
 On an issue as to the reasonableness of water-rates established by 
 ordinance, the items of necessary expenditure by the water company should 
 not include interest on the company's indebtedness, nor the sum the plant 
 will depreciate annually, aside from the sum requisite for its maintenance and 
 repairs. The value of the property which is necessarily used in furnishing 
 the water is the basis for determining the reasonableness of rates, and not its 
 liabilities. Their reasonableness cannot be determined in the absence of 
 evidence of such value. 3 
 
 The power of a water company, under its charter, to establish prices and 
 rents to be paid for water, subject to the control of the legislature, does not 
 deprive the court of its jurisdiction to adjudicate between it and a taker of 
 water as to the reasonableness of a regulation. A regulation of a water com~ 
 pany requiring takers of water to pay rent for the whole year, whether they 
 actually use it for that length of time or not, and to make payment yearly in 
 .advance, without special agreement, is unreasonable and not binding. 4 
 
 Violation of an injunction to restrain enforcement of unreasonable rules 
 by a water company does not involve forfeiture of franchise, but a proceeding 
 in contempt of court against the proper officer or employee of the company. 5 
 
 If a person would avail himself of the unreasonableness of rules regulating 
 the supplying of water, he should complain to the company of them. 6 
 
 161. Ice and the Ice Industry, In connection with the appropriation of 
 water from watercourses to the many domestic and industrial uses to which it 
 is put, not the least important is that of the appropriation of ice. It is less 
 than a century (1805) since ice became a marketable product, when a Boston 
 merchant named Tudor first conceived the idea of dealing in ice. In a few 
 years the ice business had grown to such proportions that it was imported to 
 foreign countries, American ice in 1833 having been transported as far as 
 Calcutta. It is estimated in the Encyclopaedia Britannica (vol. 12, p. 614) 
 that in America more than two million tons of ice are annually harvested and 
 stored by companies to supply the middle states. The city of "New York is 
 said to consume over five hundred thousand tons per year. Large quantities 
 
 1 San Diego W. Co. v. San Diego, supra. 472. 
 
 2 Brymer v. Butler W. Co. (Pa. Sup.), 5 Newark v. Newark W. Co., 4 Ohio N. 
 36 All. Rep. 249. P. 34i [1897]- 
 
 3 Redlands Water Co. v. Redlands 6 Thomas v. Peterson (Tex.), 24 S. W. 
 
 (CaL), 53 Pac. Rep. 843 [1898]. Rep. 1125. 
 
 4 Rockland W. Co. v. Adams, 84 Me. 
 
105 SUPPLY OF WATER AND ICE. 163. 
 
 of ice are also produced by artificial means by the evaporation of ammonia 
 and other kindred processes. It is believed that, with the increased growth 
 of cities and the many new uses and comforts obtained from ice, at the 
 present day the quantities consumed are much larger. 
 
 162. Character of Property in Ice. Ice, as the term is used, is water 
 congealed, a solid, brittle substance formed by the freezing of waters by 
 abstracting the heat necessary to preserve its fluidity. In water it has been 
 shown that riparian owners have a limited and reasonable use; in the 
 appropriation of it they must consider the wants and rights of lower 
 riparian owners, being protected in the same manner from the extravagant 
 use or wants of upper riparian owners. Water, being mobile in character, is 
 not easily confined nor preserved. When this movable, wandering substance 
 is congealed and becomes attached to the soil, it, like any other accession or 
 accretion thereto, becomes a part of the realty. It does not differ materially 
 from alluvion or accretion, which is but the imperceptible deposit or addi- 
 tions of earth, sand, gravel, and other matters made by rivers, flood, and 
 other causes upon the land. 1 As Patterson, an English justice, has said in 
 discussing the subject of accretions, " I am, however, of the opinion that 
 where anything in the nature of soil is blown or lodged upon a man's close, 
 it is part of the close, and he has a right to it against all the world. If 
 water in a pool upon one's land be a part of the realty because fixed and 
 stationary, why is it not when congealed over the bed of a stream to the 
 thread of which his title extends ? True, nature will in time, if it be not 
 removed, again change the ice to fluid, and it will pass away from the posses- 
 sion ; but not more certainly than the sweeping winds and the rising tide will 
 sweep away the shifting sands. ' ' 2 
 
 163, Eeal or Personal Property in Ice. Ice when formed upon private 
 waters or unnavigable streams has been held to be real estate, and the property 
 of the owner of the soil over which it is formed. 3 It has been held an 
 indictable offense to remove ice without the consent of the owner of the land 
 over which it is formed. 4 
 
 If ice be real property, the question arises whether it may be sold or 
 rights granted to appropriate it without a deed, duly acknowledged and 
 recorded, the same as is necessary in the conveyance of land. In general, 
 every easement being an interest therein can be acquired only by grant or 
 what is deemed to be evidence of an original grant. In this class of easements 
 are embraced the right of one to take water, the soil, or parts of the soil of 
 another, if such rights be of the freehold or inheritable character. In the 
 matter of water, the owner of a stream may grant a certain quantity of water 
 
 1 Angel on Watercourses, 53; Patter- 3 State v. Pottmeyer, 33 Ind. 402; Wash- 
 son, Justice, in Blewett v. Tregonning, ington Ice Co. v. Shortall, 101 111. 46. 
 
 3 Al. & El. 554. * State v, Pottmeyer, 33 Ind. 402; Bates 
 
 2 Blewett v. Tregonning, 3 Al. & El. v. State, 31 Ind. 72. 
 554- 
 
164. OPERATIONS PRELIMINARY TO CONSTRUCTION. IO6 
 
 to be taken out of it or a certain amount of water-power, measured and 
 ascertained. l 
 
 In Michigan ice has been held to be of such an ephemeral character as 
 to render it incapable of any permanent or beneficial use as part of the soil, 
 and that the sale of ice actually formed was a sale of personal property. 2 
 When cut and removed from where it was formed it is personal property in 
 any case. The Michigan law is without doubt the exception to the general 
 rule that ice formed upon a stream is real property. Ice cut and packed in 
 an ice-house .ias been held the subject of larceny. 3 
 
 164. Ice Formed on Navigable Streams, Ice formed upon navigable 
 streams does not as a rule belong to the adjacent owners of the land: cer- 
 tainly not in those states where such streams are held to be public property. 
 The ice is held to belong to him who first appropriates it. 4 
 
 Ice formed upon public waters is public property, and the person who 
 first takes possession of it is entitled to it without interference. If disturbed, 
 he may maintain an action of trespass against the parties who interfere with 
 him. After ice-fields have been staked and fenced and scraped they have been 
 held to become the property of the appropriator, and that an action would lie 
 against any one who attempted to disturb the possession thereof. 5 When such 
 an ice-field was injured by running a steamer back and forth unnecessarily 
 near the boom inclosing it, it was held that an action for damages would lie. 6 
 One who is merely the owner of an easement in water has not the right to the 
 ice formed on that water. 7 An appropriation of ice on a navigable stream is 
 made by surveying, marking, and staking the ice which has not been appro- 
 priated by others, and by taking such steps as are necessary to preserve it. 
 Such acts give sufficient possession to support an action of trespass. 8 At 
 common law navigable waters are those in which the tide ebbed and flowed, 
 and their ownership was limited to the high-water mark, except in those states 
 where the law has been modified by statute or custom, as in the states of 
 Maine and Massachusetts. 9 
 
 In rivers above the ebb and flow of the tide, but navigable in fact, the 
 authorities are not agreed. At common law a riparian owner had title in a 
 stream to the center thereof, and this rule has been held to apply to such 
 rivers as the Mississippi, Detroit, Delaware, Connecticut, Milwaukee, Sault 
 Ste. Marie, Saginaw, Sandusky, and others. 10 In some states, as Iowa, North 
 
 1 See Washburn's Real Property (3d 6 People's Ice Co. v. Steamer, 44 Mich. 
 Ed.), ch. 4, 3. See Piper v. Connelly, 229. 
 
 108 111. 646 [1884] ; 109 111. 672; 115 111. 7 Brookville, etc., v. Butler, 91 Ind. 
 
 195; 120 111. 522. 134. But see, contra, Mill River, etc., Co. 
 
 2 Higgins v. Kusterer 41 Mich. 318. v. Smith, 34 Conn. 462; Myer v. Whitta- 
 
 3 Ward v. People (N. Y.), 6 Hill 140. ker (N. Y.), 55 How. Pr. 376. 
 
 4 Briggs v. Knickerbocker Ice Co. 8 Hickey v. Hazard, 3 Mo. App. 480; 
 (Sup.), 32 N. Y. Supp. 95. Wood v. Fowler, 26 Kan. 682. 
 
 5 Woodman v. Pitman, 79 Me. 456. 9 Cooley on Torts 321. 
 
 And see People's Ice Co. v. Steamer, 44 10 9 Amer. & Eng. Ency. Law 858, and 
 
 Mich. 229. cases cited. 
 
IO/ SUPPLY OF WATER AND ICE. l66. 
 
 Carolina, Missouri, and Pennsylvania, the soil under navigable rivers, though 
 not subject to ebb and flow of the tide, does not belong to the riparian owners, 
 but to the state. 1 The United States Supreme Court has held to the same 
 effect. 2 
 
 If the bed of a stream of water, navigable or unnavigable, belongs to the 
 riparian owner, the ice formed thereover belongs to him and it may not be 
 removed by another without his being liable in trespass, even though the 
 removal of the ice improve the navigation. The ice of private fresh-water 
 Teams, the soil beneath which belongs exclusively to the riparian owner, is his, 
 and he may enjoin others from removing it, or maintain an action of trespass 
 against them. 3 The owner of the land on the side of a meandered stream has 
 the right to cut all the ice which forms on that portion of the stream owned 
 by him, and he may lease the privilege to another. 4 
 
 Sometimes the right to take ice from navigable streams is made the 
 subject of statute law. Under Laws of New York 1879 chap. 388, riparian 
 owners on the Hudson River have title to the ice to the center of the channel, 
 and it is provided that any person trespassing on or taking the same shall 
 be liable for the value of the ice taken or for injury done to it. This, how- 
 ever, does not authorize an injunction against cutting or interfering with such 
 ice, as the remedy given by the statute is exclusive. 5 
 
 165, Ice Formed on Lakes and Ponds. The right to gather ice upon 
 natural lakes and ponds that are public waters is a common right. 6 The 
 owner or lessee of land, including an ice-house, upon the shore of a lake or 
 pond has the same right as others to cut and take ice, but he cannot exclude 
 the public by occupying any particular part of the land. 7 When a lessee 
 has marked and erected stakes he does not acquire such a right to the ice 
 thus inclosed that he can exclude an ice company which, previous to the 
 formation of the ice, had removed the lily-pads, scraped off the snow, bored 
 holes in the ice. and let off the surface-water. 8 
 
 166. Ice Formed on Artificial Ponds. Ice formed upon an artificial 
 pond in which another than the riparian owner has a right to the water 
 belongs primarily to the riparian owner who owns the soil beneath the pond. 
 He must not take ice in such quantities as will deprive the mill-owner of so 
 much water as he is entitled to for the use of his mill. 9 If a mill-owner's 
 
 J 9 Amer. & Eng. Ency. Law 858, and (Sup.), 32 N. Y. Supp. 95. 
 
 cases cited. 6 9 Amer. & Eng. Ency. Law 859. citing 
 
 2 Barney v. Keokuk, 94 U. S. 324; Rail- Massachusetts cases; 12 Amer. & Eng. 
 road Co. v. Shurmeir, 7 Wall. (U. S.)272. Ency. Law 626; Barrett v. Rockport Ice 
 
 3 Mills River, etc., v. Smith, 34 Conn. Co., 84 Me. 155. 
 
 462; State v. Pottmeyer, 30 Ind. 287; 7 Hittinger v. Ames, 121 Mass. 539, 
 
 Lorman v. Benson, 8 Mich. 18; Paine v. Rowell v. Doyle, 131 Mass. 474. 
 
 Woods, 108 Mass. 160; Higgins z/. Kus- 8 Barrett v. Rockport Ice Co., 84 Me. 
 
 terer, 41 Mich. 318. 155- 
 
 4 Oliver v. Olmstead (Mich.), 70 N. W. 9 Eidemiller Ice Co. v. Guthrie (Neb.), . 
 Rep. 1036. 60 N. W. Rep. 717; 12 Amer. & Eng. 
 
 5 Briggs v. Knickerbocker Ice Co. Ency. Law 626. 
 
l6/. OPERATIONS PRELIMINARY TO CONSTRUCTION. IO8 
 
 flowage or water-power is not lessened materially, he cannot sue a riparian 
 owner for the removal of ice from the pond. 1 There are numerous cases 
 which hold that the owner of an artificial mill-pond is entitled to the water 
 of the pond, and is also entitled to the ice which is formed thereon, even as 
 against the riparian owner. This, however, is but a repetition of what has 
 just been said, and is no doubt true if the appropriation of the ice by the 
 riparian owner materially diminishes or injures the water-power of the mill. 2 
 An owner of a mill, and a dam subservient thereto, who has wantonly drawn 
 the water from a pond and thus injured the ice privileges of the owner of land 
 bordering on the pond, was held liable in damages to such owner. 3 
 
 167. Owners of Water and Ice are the Same. In every case the right to 
 take ice from a stream or body of water depends solely upon, and grows out 
 of, the title to the bed of the stream and such right to the use of the waters as 
 results therefrom. This is well settled by authority as well as by practice. 4 
 In some cases it is held that the title to the ice is in the person who was 
 entitled to the use of the water before it was congealed. 5 The owner of a 
 dam has no right unreasonably to detain the water, for the same reason that he 
 has no right wantonly to accelerate it to the injury of the owner above or 
 below. 6 
 
 The property in ice on a pond or a canal depends upon the same rules and 
 principles. If the state has appropriated the fee of the land for the construc- 
 tion of canals, the former owner has no exclusive right to take ice therefrom. 7 
 If the state has condemned and taken only a right of way, making it a 
 servitude of the property of the original owner, the owner of the fee may take 
 ice when its removal will not interfere with navigation or the use of the water 
 for hydraulic or any other purposes for which it was taken. 8 
 
 168. Travel upon Ice Rights of Public. In navigable streams the 
 public has a common right of travel, and this extends to driving, yachting, 
 and skating over the ice of such stream. Few cases have been decided by 
 the courts upon this question, but there can be no doubt of the common-law 
 right of the public to travel upon the ice of a navigable stream. Persons and 
 companies engaged in the cutting and appropriating of ice must so protect 
 their fields and the openings so made as not to expose to danger persons who 
 
 1 Hazelton v. Webster (Sup.), 46 N. Y. 4 Gould on Waters, 191 and 336; 
 
 Supp. 922 [1897]; Reysen v. Roate Piper v. Connolly, 108 111. 646; Ham v. 
 
 (Wis.), 66 N. W. Rep. 599; Scarce v. Salem, 100 Mass. 350; Paine v. Woods, 
 
 Gardner (Pa.), 13 Atl. Rep. 835 [1888]. 108 Mass. 172. 
 
 2 Brookville & M., etc., Co. v. Butler, 5 Elliot v. Fitchburg R. Co. (Mass.), 10 
 
 91 Ind. 134; State v. Pottmeyer, 33 Ind. Cush. 191; Cummings v. Barrett (Mass.), 
 
 402; Edgerton v. Hoff, 26 Ind. 35; Julian 10 Cush. 186. 
 
 v. Woodsmall, 82 Ind. 568; Goodlittle v. 6 Phillips v. Sherman, 64 Me. 171. See 
 
 Alker, i Burr. 133; Marshall v. Peters Frye v. Moore, 53 Me. 583. 
 
 (N. Y.), 12 How. Pr. 218; Dodger/. Berry 7 Cromie v. Board, 71 Ind. 208; Indian- 
 
 (N. Y.), 25 Alb. L. Jour. 303. apolis, etc., v. Burkhart, 41 Ind. 364. 
 
 3 Eidemiller Ice Co. v. Guthrie (Neb.), And set Card, v. McCaleb, 69 111. 314. 
 
 60 N. W. Rep. 717; Stevens v. Kelley, 78 8 Edgerton v. Hoff, 26 Ind. 35. 
 Me. 445. 
 
IO9 SUPPLY OF WATER AND ICE. 169, 
 
 venture upon the ice. If a traveler is injured by an unguarded hole cut in 
 the ice, without negligence on his part, he may recover from the persons who. 
 are responsible for the unguarded condition of the hole. 1 
 
 Frozen, navigable rivers are public highways, and a traveler ordinarily 
 has the right of passage as necessarily incident to the reasonable enjoyment 
 of his right, but it must be exercised in common with such other uses as the 
 frozen condition and surface of the river are adapted to. One such use is the 
 harvesting of ice, a use that may impede travel. Both are common-law 
 rights and both must be equally exercised, but both cannot be enjoyed at the 
 same spot at the same time. It is reasonable, therefore, to give the choice to- 
 public benefit, and to restrict their uses to the narrower compass, but neither 
 can monopolize the whole right to the destruction of all other rights. 
 
 If the public has appropriated a particular part of the ice of a stream or 
 pond, and has worn a well-beaten track upon the same, it would be 
 unreasonable for the ice-gatherer to obstruct such track; and if the ice-gatherer 
 has appropriated and marked his ice-field, leaving the traveler room for 
 passage, it would be unreasonable and unjust for the traveler to go upon it 
 and defile it. Both uses of the ice are lawful, but neither may wholly exclude 
 the other. Courts may declare the relative rights of persons, but they cannot 
 extinguish them. 2 
 
 169. Measure of Damages for Taking Ice. The measure of damages for 
 cutting and removing ice has been held to be the value of the ice as soon as 
 it exists as a chattel; that is, as soon as it has been scraped, plowed, cut, 
 severed, and is ready for removal, 3 and not with reference to the particular 
 situation or convenience of one person or another. 4 The damages for 
 destroying wantonly a field of forming ice is the profit that would have been 
 made, deducting the expense of storing it from the market price. 5 
 
 When riparian estates are taken away and the water rights pertaining thereto 
 are destroyed, the value of the ice privileges connected therewith may be 
 considered as an element of damages. 6 
 
 1 Woodman v. Pitman, 79 Me. 456; 5 People's Ice Co. v. Steamer, 44 Mich. 
 French v. Camp, 18 Me. 433. 229. 
 
 2 Woodman v. Pitman, 79 Me. 456. 6 Ham v. Salem, 100 Mass. 350; Paine 
 
 3 Washington Ice Co. v. Shortall, 101 v. Woods, 108 Mass. 173; Cromie v. 
 111. 46. Board, 71 Ind. 208; Card v. McCaleb, 69 
 
 * Piper v. Connolly, 108 111. 646. 111. 314. And see Indianapolis Water- 
 
 works v. Burkhart, 41 Ind. 364. 
 
CHAPTER XL 
 
 i 
 
 WATER. RIGHTS IN REGARD TO SURFACE-WATERS. 
 
 171. Surface-waters Defined. " Surface-waters are waters of a casual 
 and vagrant character which ooze through the soil or diffuse or lose them- 
 selves over the surface, following no definite course." Though usual and 
 natural, flowing in a known direction and course, they have nevertheless no 
 banks or channels. They include waters which are diffused over the surface 
 of the ground, and are derived from rains, melting snows, occasional out- 
 bursts of water which in time of freshet descend from the mountains and 
 inundate the country, and the moisture of wet, spongy, springy, and boggy 
 grounds. When surface-waters reach and become a part of a natural water- 
 course they lose their character as surface-waters, and then come under the 
 rules governing watercourses. l 
 
 Surface-waters have been described as water which comes from no one 
 knows exactly whence, and flows no one knows exactly how, through or under 
 ground or on the surface, unconfined in any channel, either as rainfall which 
 may fall from day to day, or springs that come from beneath the surface, in a 
 direction which no one knows. 2 Natural depressions in the land through 
 which surface-waters from adjoining lands naturally flow are not water- 
 courses. 
 
 172. Surface-waters Distinguished from Watercourses. The determina- 
 tion of the character of waters is often important, as the laws governing their 
 use, disposition, and appropriation often depend upon their character. This 
 is especially true of surface-waters, as distinguished from watercourses, in the 
 liability of landowners for damages due to their action or to their drainage, 
 diversion, and detention, as will be seen in the sections which follow. 
 
 A slough or bayou extending at right angles to the river, and about one 
 hundred and fifty feet wide at the river, having a well-defined channel, and 
 banks tor a distance of trom tour to six hundred feet and no more, not shown 
 to be formed by any living springs, but in high waters to have an outlet into 
 the river through its defined channel for the distance stated, and spreading 
 through forests and over the surrounding country without any defined 
 
 1 24 Amer. & Eng. Ency. Law 896, and Gd. June. C. Co v. Shugar, L. R. fc 
 
 cases cited. Ch. 486. 
 
 no 
 
Ill RIGHTS IN REGARD TO SURFACE-WATERS. \J2a. 
 
 channel, was held not to be a natural watercourse, and the construction of a 
 solid embankment across it at its junction with the river was not to be 
 enjoined. 1 
 
 Water gathered in a reservoir formed by the bed of a creek and the con- 
 struction of streets across it, where the bed of the creek has long since been 
 abandoned and streets, roads, railroad-tracks, and buildings have been con- 
 structed across it in places, is to be regarded as surface-water. 2 
 
 A lake formed by several streams whose waters in times of flood find an 
 outlet by percolation through a bed of gravel so rapidly that there is an 
 apparent current towards the gravel-bed is a watercourse, and not merely 
 surface-water. 3 Water which is mere surface-water from rain or melted snow, 
 flowing in hollows and ravines of land, which are at no time destitute of 
 water, is usually held not a watercourse. If, however, such ravines and 
 gorges have a well-defined channel which the water has made for itself, and 
 which is the accustomed channel through which it flows, such channel is held 
 a watercourse. 1 Whether or not such a pass for water is a watercourse is a 
 question to be determined by a jury under proper instructions from the 
 court. 4 
 
 Where the law provided that an occupier of any land covered with water 
 shall be assessed at one fourth of 'the amount to be imposed on other 
 property, it was held that canals and filter-beds, the latter supported on 
 brick arches and covered with water at times, were lands covered with water. 5 
 
 172a, Watercourse Defined and Distinguished. A watercourse is a 
 stream of water flowing in a defined channel, having a bed and sides or 
 tanks, and discharging itself into some other stream or body of water. 
 According to Mr. Angel in his book on Watercourses, 6 a watercourse consists 
 of a bed, banks, and water, though the water need not flow continually, 
 as there are many watercourses which are sometimes dry. He distinguishes 
 between regular flowing streams of water which at certain seasons are dried 
 up, and waters which in times of freshets or as melted ice descend from 
 the hills and inundate the country. To maintain a right to a watercourse or 
 brook it must appear that the water usually flows in a certain direction and 
 by a regular channel with sides or banks. It need not flow continually, 
 and may at times be dried up. It must have a well-defined and substantial 
 existence. The mere right of drainage over the general surface of land 
 is very different from the right of the flow of a stream or brook. 7 
 
 The word "watercourse" is applied to all the inland waters which are 
 
 1 St. Louis, etc., R. Co. v. Schneider, 5 East London W.-w. Co. v. Leyton 
 30 Mo. App. 620. Sewer Auth. (Eng.), L. R. 6 Q. B. 669 
 
 2 Kansas City v. Swope, 79 Mo. 446. [1871]. 
 
 3 Hebron G. Rd. Co. v. Harvey, 90 6 Angel on Watercourses, 7th ed., 4. 
 Ind. 192. 7 Hoyt v. Hudson, 27 Wis. 656; 28 
 
 * Eulri'ch v. Richter, 37 Wis. 230. Amer. & Eng. Ency. Law 944, and case* 
 
 cited. 
 
1/20. OPERATIONS PRELIMINARY TO CONSTRUCTION. 112 
 
 commonly called rivers, brooks, creeks, rivulets, etc., according to their 
 magnitude. As defined in law, "watercourse" means a living stream with 
 banks and channels, not necessarily running at all times, but coming from 
 more permanent sources than mere surface-waters. l A river is a considerable 
 stream of water with a current of its own, flowing from a higher level, its 
 source, to its mouth. 2 It is a watercourse from the point where the water 
 comes to the surface and begins to flow in a well-defined channel until it 
 mixes with the water of the sea, lake, or other body of water into which it 
 flows. 3 
 
 To constitute a watercourse it is not necessary that there should be 
 spring-water. 4 But where water, owing to hills and mountains, accumulates 
 in large quantities from rain and melting snow, and at regular seasons 
 descends through long gullies or ravines, carving a distinct and well-defined 
 channel, and which bears unmistakable signs of the action of running water, 
 and in which channels the stream has flowed from time immemorial, it will 
 be considered a watercourse. 5 
 
 A ditch excavated for the purpose of diverting the water from its natural 
 channel, or to carry it from low lands from which it will not flow in conse- 
 quence of the natural formation of the surrounding land, may be a water- 
 course. 6 In Wisconsin it has been held that surface or percolating water 
 gathered into a ditch and led away does not make a watercourse. 7 
 
 A body of water five miles long by one mile wide, fed by springs which 
 had no current or connection with any other stream except that, during a 
 portion of the year, water flowed from it to the Illinois River by way of a 
 slough, and it did not appear whether or not it was navigable, was held a lake 
 or pond, and that therefore in Illinois adjoining owners took only to water's 
 edge. 8 
 
 The fact that a stream may spread out, making a piece of marshy ground 
 where the flow is not sufficient to break the turf, does not destroy its character 
 as a watercourse. 9 If there be characteristics of a flowing stream with visible 
 
 1 Joliet, etc., R. Co. v. Healy, 94 111. 5 28 Amer. & Eng. Ency. Law 946, and 
 416; Gillett v. Johnson, 30 Conn. 180; cases cited. 
 
 Hill v. Cincinnati, etc., Ry. Co. (Ind.), 6 Earl v. DeHart, 12 N. J. Eq. 280. 
 
 '10 N. E. Rep. 410 [1887] ; Morrisey v. See McKinley v. Chosen Freeholders, 
 
 Chicago, etc., Ry. Co. (Neb.), 56 N. W. 29 N. J. Eq. 171; Bowlsby v. Speer, 31 
 
 Rep. 946; Pyle v. Richards, 17 Neb. 180. N. J. L. 351. 
 
 2 The Garden City, 26 Fed. Rep. 766. 7 Case v. Hoffman (Wis.), 72 N. W. 
 
 3 Dudden v. Glutton Union, I H. & N. Rep. 390 [1897]. But see contra. Cross 
 627; Jeffers v. Jeffers, 107 N. Y. 651; v. Kitts (Cal.), 22 The Reptr. 361 [1886]. 
 Hinkle v. Avery (la.), 55 N. W. Rep. 77; 8 Trustees v. Schroll (111.), 12 N. E. 
 Razzo v. Varni (Cal.), 22 Pac. Rep. 848; Rep. 243 [1887]. 
 
 New York C. & St. L. R. Co. v. Speel- 9 Gillett v. Johnson, 30 Conn. 180; 
 
 man (Ind. App.), 40 N. E. Rep. 541; Hill Hinkley v. Avery (la.), 55 N. W. Rep. 
 
 v. Cincinnati, etc., Ry. Co. (Ind.), 10 N. 77; Mitchell v. Bain (Ind. Sup.), 42 N. E. 
 
 E. Rep. 410 [1887]; Ne-Pee-Nauk Club Rep. 230; Macomber v. Godfrey, 108 
 
 v. Wilson (Wis.), 71 N. W. Rep. 661. Mass. 219 [1871]; Rigney v. Tacoma Lt. 
 
 4 Kelly v. Dunning, 39 N. J. Eq. 482; & W. Co. (Wash.), 38 Pac. Rep. 147. 
 Eulrich v. Richter, 41 Wis. 320. 
 
113 RIGHTS IN REGARD TO SURFACE-WATERS. 
 
 current, it is a watercourse; ! otherwise it is not. 2 
 
 The fact that a stream having a bed, banks, and current has been 
 deepened artificially for drainage purposes, or that it is at times dry, does not 
 deprive it of the character of a watercourse. 3 Depressions in the ground to 
 which surface-water from adjacent land finds its way and is discharged into 
 some natural outlet, are not watercourses. 4 A ravine upon which grasses 
 grow and hay is cut, through which surface-water is discharged during a 
 portion of the year, or during rains or when snow melts, but which has not a 
 Dank, is not a watercourse. 5 A small stream passing through a city in an 
 adverse course, collecting foul matter from dwellings and manufactories and 
 which is therefore prejudicial to health and comfort, is not a natural water- 
 course in which people have such rights as to prevent the city from changing 
 the course of such stream and conducting it in a covered culvert. 6 A sluice- 
 way between the piers of a bridge extending above, below, and between the 
 filling by which flats have been reclaimed, but which has no water in it at 
 low tide, is not a watercourse which can be the basis of riparian rights. 7 
 
 A stream of water which is not susceptible of use as a highway in its 
 natural state, is absolutely private and, though made capable of floating com- 
 mercial products by artificial means, is not a subject of public use. 8 * If 
 such streams are sufficiently large to be of public use in transporting property, 
 they are highways over which the public has a common right. 9 
 
 If the water takes a defined course, as from a spring, and makes a defined 
 channel, it is a watercourse, whatever its size or length. 10 A creek one-half 
 mile long, with a defined bed and banks over which water is conveyed and 
 discharged into lowlands adjacent to the running stream, is a watercourse, 
 though it be dry most of the time. 11 However small, it is a watercourse from 
 its source, if that source be a spring; and the owner of the land on which it 
 rises cannot monopolize all the waters at its source so as to prevent their 
 reaching the land of other proprietors lower down. 12 The fact that a creek or 
 outlet from a lake spreads out into a body of water does not. make it a stream 
 
 1 Hinkle v. Avery (la.), 55 N. W. Rep. 6 Murphy v. Wilmington, 5 Del. Ch. 
 77. 281. 
 
 2 Case v. Hoffman (Wis.), 72 N. W. 7 Chamberlain v. Hemmingway (Conn.), 
 Rep. 390 [1897], See Ne-Fee-Nauk Club 22 Law Rep. Ann. 45. 
 
 v. Wilson (Wis.), 71 N. W. Rep. 661. 8 Wadsworth v. -Smith, u Me. 278; 
 
 3 Rigney v. Tacoma Light & Water Co. Hubbard v. Bell, 54 111. 121. 
 
 Wash.), 38 Pac. Rep. 147. And see 9 Palmer v. Mulligan (N. Y.), 3 Cai. 
 
 Jrady v. Hayward (Mich.), 72 N. W. 37; Hooker v. Cummings (N. Y.), 20 
 
 Rep. 233 [1897]. Johns. 90. 
 
 * Barkley v. Wilcox, 86 N. Y. 140; Chi- 10 Van Orsdal z/. Burlington, etc., R. 
 
 cago, etc., Railroad Co. v. Morrow, 42 Co., 56 Iowa 470; Union Pac. R. Co. v. 
 
 Kan. 339; Trustees v. Schroll (111.), 12 Dyche, 31 Kan. 120; Pyle v. Richards, 17 
 
 N. E. Rep. 243 [1887]. Neb. 180; Chauvet v. Hill, 93 Cal. 407. 
 
 5 Shields v. Arndt, 4 N. J. Eq. 246; " Ferris v. Wellborn, 64 Miss. 29. 
 
 Wagner v. L. I. R. Co. (N. Y.), 5 Thomp. 12 Dudden v. Glutton Union, i H. & N. 
 
 & C. 163. And see Hoyt v. Hudson, 627: Wood v. Wand, 3 Exch. 748; Chauvet 
 
 27 Wis. 656. v. Hill (Cal.), 28 Pac. Rep. 1066. 
 
 * Set Sees. 231-250, infra. 
 
173- C+'ERATWNS PRELIMINARY 70 CONSTRUCTION. 114 
 
 of a different character. It is still a stream if there is a set and uniform 
 current. 1 Its character is not lost though it for a time spreads out over a 
 meadow or is lost in a swamp or lake, if it emerges therefrom and can be 
 identified as the same stream. 
 
 173. Overflow of Watercourses. Waters which have overflowed the 
 banks of a stream in times of freshet because of the insufficiency of the 
 natural channel, are surface-waters within the meaning and rules of law 
 relative to such waters. 2 The moment, however, such waters return to the 
 channel they are not surface-waters. Water which seeps through an embank- 
 ment or levee is deemed surface-water, and is governed by the laws applicable 
 to surface-waters. 
 
 It is difficult to distinguish between the surface-water coming from the 
 clouds and that which rises in a spring, especially in the case where the 
 surface-water comes from the mountains, a thousand miles from where the 
 overflow of the river occurs, occasioned as it is, not by rains or snows in its 
 vicinity, but by the melting of snows upon the mountains and by the accession 
 of a thousand tributary streams. It has been held that the overflow of the 
 Missouri River is what in law is termed surface-water. 3 
 
 The waters of a stream which, during the rainy season, was so swollen 
 by the freshets that it flowed in high-water channels, having well-defined beds 
 and banks, are not surface-waters against which a railroad company may place 
 solid embankments across the high-water channels. 4 Where surface-water 
 habitually flows off over a fixed and determinate course, having reasonable 
 limits as to width, so as to be uniformly discharged at a definite point, though 
 without having 'worn out a channel having definite and well-marked banks, 
 the line of flow is a watercourse within the meaning of Revised Statutes, 
 which declare that owners of land may drain the same " into any natural 
 watercourse." 5 The flood-water of the Nemaha River is held not to oe sur- 
 face-water, but a constituent part of such stream a natural watercourse. 6 
 
 Water which in flood-time leaves the channel of a well-defined river and 
 overflows adjoining lowlands, the current of the river widening to the whole 
 width of the water, has been held not surface-water so as to relieve a railroad 
 company from liability for its obstruction. 7 
 
 1 State v. Gilmarton, 14 N. H. 467; 3 Shane v. Kansas City, etc., R. Co., 
 Hinkle v. Avery (Iowa), 55 N. W. Rep. 71 Mo. 237 [1879]; Kauffman v. Greise- 
 77. mer, 26 Pa. St. 408. 
 
 2 24 Amer. & Eng. Ency. Law 903; 4 New York, C. & St. L. R. Co. v. Ham- 
 Shane v. Kansas City, etc!, R. Co., 71 let Hay Co. (Ind.), 47 N. E. Rep. 1060 
 Mo. 237 [1879] ; Jean v. Penna. Co. (Ind. [1897]. 
 
 App.), 36 N. E. Rep. 159; Cass v. Dicks 5 Lambert v. Alcorn (111. Sup.), 33 N. E. 
 
 (Wash.). 44 Pac. Rep. 113; Mo. Pac. Ry. Rep. 53. 
 
 Co. v. Keys (Kan.), 40 Pac. Rep. 275; 6 Chicago, B. & Q. R. Co. v. Emmert, 
 
 New York, etc., R. Co. v. Speelman (Ind. 73 N. W. Rep. 540. 
 
 App.), 40 N. E. Rep. 541. But see Craw- 7 Moore v. Chicago, B. & Q. R. Co. 
 
 ford v. Rambo, 44 Ohio St. 282, contra, (Iowa), 39 N. W. Rep. 390 [1888], fo lloiv- 
 
 and Moore v. Chicago, etc., Ry. Co. (la.), ing Sullens v. Railway Co., 38 N. W. 
 
 39 N. W. Rep. 390 [1888]. Rep. 545. 
 
ITS RIGHTS IN REGARD TO SURFACE-WATERS. 1 75- 
 
 174. Property in Surface-waters. Surface-water, as well as percolating 
 water, is owned by the person or party who owns the property upon which it 
 lies or through which it passes. Wild water that flows upon the surface of 
 the earth, or temporarily flows over it as the natural or artificial elevations or 
 depressions may guide or invite it, but without a channel, and which may be 
 caused by the falling of rain or the melting of snow and ice, or the overflow- 
 ing of contiguous streams or rivers, is absolutely the property of the owner 
 of the land as much as the land itself. Such waters are not in a watercourse 
 or in a multitude of minute watercourses, but in the eye of the law they are 
 the moisture and a part of the soil with which it mingles, and the person who 
 owns the soil may apply all that is found therein to his own purposes and at 
 his own free will. l 
 
 175. Obstruction and Repulsion of Surface-waters. The law governing 
 the obstruction and repulsion of surface-waters is in a very unsatisfactory 
 condition, and it arises from the adoption of two rules one, known as the 
 civil-law rule, which subjects the lower estate to an easement or servitude of 
 receiving the flow of surface-waters from the upper estate, and another 
 which is known as the common-law rule, which permits the lower proprietor 
 to do as he pleases with his land and to receive or repel or divert surface- 
 waters flowing upon his land as he pleases. One or two states seem to have 
 adopted a modified rule, depending upon the circumstances of the case and 
 the reasonableness of the use of the lower estate. In those states which have 
 adopted the civil-law rule the lower estate is necessarily subject to the 
 natural flow of the surface-water from the upper one. The owner of the 
 lower land has no right to erect embankments and prevent the natural flow 
 of the water from the higher ground, nor has the owner of the higher ground 
 a right to make excavations from drains and divert the water from its natural 
 channel to the new channel made on the lower ground; nor can the owner 
 of the higher land collect into one channel waters usually flowing off his 
 neighbor's land by several channels, and thus increase the flow upon the 
 lower estate. The owner of the higher land, when good farming requires it, 
 may cover up and conceal drains through his own land if he keep the place 
 of discharge unchanged. The civil law created an easement or servitude and 
 drainage over lower lands and waters from the necessity of affording an 
 escape for the flow of surface-waters. The rule does not apply to the over- 
 flowing of waters from large streams in times of flood, and the owners of land 
 along such streams may construct levees or embankments to protect their 
 lands from flood-waters, even though the effect be to prevent the full passage 
 of such flood-waters in as large and full a manner as they would otherwise 
 pass, and even though they increase the flow of flood-water upon lands not 
 similarly protected. If the owner of higher land is subject to overflow, he 
 may protect himself in the same manner by erecting levees or embankments, 
 
 1 24 Amer. & Eng. Ency. Law 906. 
 
1/6. OPERATIONS PRELIMINARY TO CONSTRUCTION. I 1 6 
 
 even though it increases the flood-waters on higher lands bounding upon the 
 river. 
 
 The seepage through a levee or embankment in time of flood is surface- 
 water, and the lower proprietor is bound to permit it to flow through his 
 lands in the same manner as surface-water usually flows over them. 1 
 
 176. Different Laws in Different States. The principles of the civil law 
 have been adopted in Alabama, California, Georgia, Illinois, Pennsylvania, 
 and Tennessee. The laws of Iowa, Kentucky, Louisiana, Maryland, 
 Michigan, Nevada, North Carolina, and Ohio have a leaning towards the 
 civil-law rules. North and South Dakota and Oregon do not appear to have 
 decided the question whether the civil- or common-law rules shall be applied. 
 
 In some states the courts distinguish between city and country property, 
 and the opinion has been expressed that the civil law does not apply to city 
 and village lots. 2 
 
 The common-law doctrine is recognized and followed in England and in 
 the states of Connecticut, Indiana, Kansas, Maine, Massachusetts, Minnesota, 
 Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, 
 New York, South Carolina, Texas, Vermont, Washington, and Wisconsin. 3 
 Arkansas has adopted what seems to be a modified rule, under which the 
 right to obstruct surface-water depends upon whether the obstruction is the 
 necessary result of the reasonable use of the land. If it be reasonably 
 necessary to obstruct or divert the natural flow of surface-water, the right 
 may be exercised if it be done with proper regard for the welfare and rights 
 of adjoining owners. 4 A justice of a Missouri court 5 has characterized the 
 common-law rule as the doctrine of sauve qui peuf, popularly known as 
 that of " the devil take the hindermost. " To an engineer it would seem he 
 had divulged the real grounds of the contention when he said: " Nor do we 
 think that equitable and just principles, as we understand it, will materially 
 retard agricultural operations or improvements. The facts in the present case 
 show that the defendant could have built a rock culvert at the crossing of this 
 hollow at about the same cost as the dirt embankment. The engineer seems 
 to have been misled by the dry and rich soil, which extended to the very 
 bottom or the lowest part of the swale, portions of which were in cultivation; 
 and although the road was equally strong and safe with a rock culvert or a 
 dirt embankment, the engineer preferred the latter, as ' not so liable to wash 
 out when floods came, and that driftwood and other debris fill the culvert 
 and injure it or the bank adjoining it/' Without doubt in agricultural 
 districts the civil-law rule is most equitable, but in cities and districts where 
 large and expensive improvements are. undertaken the common-law rule is 
 
 1 24 Amer. & Eng. Ency. Law 907-911. and many cases reviewed and cited. 
 
 2 24 Amer. & Eng. Ency. Law 915. * 24 Amer. & Eng. Ency. Law 923. 
 
 8 Walker v. New Mexico, etc., R. Co., 6 Justice Lawrence in Shane v. Kansas 
 
 17 Sup. Ct. Rep. 421. See Shane v. Kan- City, etc., R. Co., 71 Mo. 237 [1879]. 
 sas City, etc., R. Co., 71 Mo. 237 [1879], 
 
117 RIGHTS IN REGARD TO SURFACE-WATERS. i;8. 
 
 more equitable and is better calculated to encourage the development and 
 fulfillment of engineering and architectural enterprises. 
 
 177, Improvements on Land under the Common and Civil Law Rules, 
 The common-law doctrine holds that the owner of land has the right to 
 
 occupy and improve it in such a manner and for such purposes as he sees fit, 
 either by altering the conditions of the surface or by the erection of buildings 
 or other structures, and that such right is not restricted or modified by the 
 fact that his land is so situated with reference to that of adjoining owners that 
 the alteration in the mode of its improvement or occupation will cause 
 surface-water to stand in unusual quantities on adjacent lands, or prevent 
 such waters from passing onto and over such lands in greater quantities and 
 in different direction than they are accustomed to flow. 1 The common-law 
 rule is founded upon the principle that a property owner has a right to the 
 free and unfettered control of his own land both upon and beneath the 
 surface, and that it cannot be interfered with or restrained by any considera- 
 tions of injury to other lands which may be occasioned by the flow of mere 
 surface-water. 
 
 It is held not material in the application of this principle of law whether 
 a party obstructs or changes the direction and flow of surface-waters. He 
 may prevent it from getting within the limits of his land, or may erect barriers 
 or change the level of the soil so as to turn it off into new courses after it has 
 come within his boundaries. Under the common law the obstruction qf 
 surface-water or an alteration in the flow of it affords no cause of action on 
 behalf of the person who may suffer loss or detriment therefrom, as against 
 one who does no act inconsistent with the due exercise of dominion over his 
 own soil. 2 
 
 The doctrine of the common law is that there exists no such natural 
 easement or servitude in favor of the owner of the superior or higher ground 
 or fields as to mere surface-water, or such as falls or accumulates by rain or 
 the melting of snow, and that the proprietor of the inferior or lower tenement 
 or estate may, if he chooses, lawfully obstruct or hinder the natural flow of 
 such water therein, and in so doing may turn the same back upon, or off onto 
 or over, the lands of other proprietors without liability for injuries ensuing 
 from such obstruction or diversion. 3 
 
 178. Drainage of Surface-waters, It is well established that the natural 
 flow of surface-waters from higher to lower grounds will not give a cause of 
 action. In the clearing, improvement, and preparation of land for cultiva- 
 tion, the owner may, in the exercise of good husbandry, drain his soil, although 
 the consequences are that the surface-waters flow from his land with greater 
 rapidity and in greater quantities upon the lower land. 4 
 
 1 Gannon v. Hargadon, 10 Allen 106, R. Co., 71 Mo. 237 [1879]; Johnson v. 
 Bigelow, J. Chicago, etc., Ry. Co. (Wis.j, 50 N. W. 
 
 2 24 Amer. & Eng. Ency. Law 917. Rep. 771. 
 
 3 Ch. Justice Dixon in Hoyt v. Hudson, 4 Meixell v. Morgan (Pa.), 24 Atl. Rep. 
 27 Wis. 656; Shane v. Kansas City, etc., 216; 24 Amer. & Eng. Ency. Law 926. 
 
1/8. OPERATIONS PRELIMINARY TO CONSTRUCTION. Il8 
 
 In the reasonable 'use of one's land one may fill up sag-holes, pools, and 
 basins so that water shall not accumulate or stay in them, even though the 
 flow upon his neighbor's land is increased. The drainage should be main- 
 ained in the direction in which it naturally flows, and it should not bet 
 collected into a ditch or drained and discharged in large volume upon lower 
 lands. 1 
 
 The owner may make such ditches or drains for agricultural purposes on 
 his own land as may be required by good husbandry, although by so doing 
 the flow of water may be increased in the natural channel which carries the 
 water from the upper to the lower field. 2 Substituting an underground tile- 
 drain for natural surface drainage over the same land is not an abandonment 
 of the natural watercourse. 3 
 
 Injunction will not issue to restrain the discharge of water into a drain lead- 
 ing to the land of the servient owner, when it does not appear that the owner 
 is injured by the substitution of a tile-drain for the natural surface drainage. 4 
 
 The defendant must not, by artificial channels, discharge an unnatural 
 quantity of water upon the plaintiff's land. If by reason of negligence in 
 not keeping the channel open and conducting the water, as it had formerly 
 done, away from the plaintiff, upon its own land, it is liable. When a cor- 
 poration or individual attempts by artificial means to interfere with the 
 natural action of water to serve its or his own purposes, he must see to it that 
 it shall be done in such a way as shall not unnecessarily do an injury to his 
 neighbor. 5 
 
 The owner of land adjoining a highway has no right to drain his land into 
 a ditch in such highway by means of a drain which carries the water in a 
 different direction from its natural flow. 6 
 
 In an action for damages for injuries for the unreasonable discharge of 
 surface-waters upon the lands of another, it is no defense that the lower land- 
 owner may have protected his lands and have avoided the damages by making 
 proper improvements. All of the states hold the owner of land liable in 
 damages who collects water in a body and casts it upon the lower premises to 
 their injury. The unlawful discharge of the waters must have caused 
 appreciable damages. 7 
 
 1 Many cases in 24 Amer. & Eng. Ency. 7 24 Amer. & Eng. Ency. Law 931* 
 LawQ28. See Shane v. Kansas City, etc., Mitchell v. New York, etc., R. Co., 36 
 R. Co., 71 Mo. 237 [1879]; Goodale v. Hun (N. Y.) 177 [1885]; Mitchell v. 
 Tuttle, 29 N. Y. 459. Bain (Ind.), 42 N. E. Rep. 230; Jacobson 
 
 2 Ribordy v. Murray, 70 111. App. 527. v. Van Boening (Neb.), 66 N. W. Rep. 
 
 3 Lamberts. Alcorn (111. Sup.), 33 N. 993; Fremont, etc., R. Co. r. Marley 
 E. Rep. 53. (Neb.), 40 N. W. Rep. 948 [1889], 25 Neb. 
 
 4 Resserz/. Davis (Iowa), 69 N. W. Rep. 138; Resser v. Davis (Iowa), 69 N. W. 
 
 524. Rep. 524; Lincoln St. Ry. Co. v. Adams 
 
 5 Mitchell v. New York, L. E. & W. R. (Neb.), 6oN.W. Rep. 83; Drew v. Hicks 
 Co., 36 Hun 177 [1885]. (Cal.), 35 Pac. Rep. 563. And see Mis- 
 
 6 Davis v Commissioners (111. Sup.), 33 souri, K. & T. Ry. Co. v. Bishop (Tex.), 
 N. E. Rep. 58. 34 S. W. Rep. 323. 
 
119 RIGHTS IN REGARD TO SURFACE-WATERS. l8o. 
 
 The county or state, upon making just compensation to the parties 
 injured, may, in constructing a highway, divert waters in a manner which 
 could not be undertaken by an individual. 1 The owner of a swamp, which is 
 the natural place of deposit of surface-water, cannot complain because the 
 city deposits such waters in the swamp by storm-sewers after the swamp has 
 been improved. a 
 
 179. Drainage of Ponds, Stagnant Bodies, etc. When surface-waters 
 reach and become a part of a permanent body of water contained in a natural 
 basin and forming a lake or pond, but having no outlet, and it is situated on 
 
 he lands of two or more persons, they lose their character as surface-waters, 
 and are governed by laws applicable to watercourses. A pond of surface- 
 water may not be drained upon the lands of a neighbor where water would 
 not otherwise go. 3 
 
 If a pond have no outlet except by percolation and evaporation, it is a 
 burden to the estate upon which it is situated, unless the owner can drain it 
 without injury to others. It has even been held that a landowner could not cut 
 through a ridge situated upon his own land and discharge a swamp upon his 
 own land, if such waters by percolation into his land were transmitted upon 
 his neighbor's land to his injury. 4 
 
 Yet it has been frequently held that where natural ponds are merely the 
 collection of surface-waters from rain or melting snow, and where there is. 
 such a descending grade that by filling up the ponds with dirt there would 
 be a flow of water toward and into lower lands, such ponds may for the 
 purposes of husbandry be drained by either tile or other drains into any 
 natural watercourse existing upon the superior estate and which flows over 
 the lower estate, though the flow of water be increased. This would not 
 permit the upper property owner to drain a large body of water upon the 
 lower land of his neighbor to its serious injury. A landowner may drain 
 surface-water directly into an adjoining pond if it formerly flowed there 
 naturally over the surface. 5 
 
 The owner of a marsh or swamp having a natural outlet to a lake cannot 
 drain the marsh by means of a ditch dug in such manner as to drain off the 
 waters of the lake. 6 
 
 180. Water from Roofs. This is an important subject to the architect or 
 engineer in designing and erecting structures. Rain-water and melting snow 
 may not fall from the roof of a building upon a neighbor's premises, either 
 from the eaves or by collecting it in gutters or eaves-troughs, and then 
 turning it in a body upon the adjoining lands. If a building is erected so 
 
 1 Churchill v. Beethe (Neb.), 66 N. W. W. R. Co., 36 Hun 177; Anderson -v. 
 Rep. 992. Henderson (111.), 16 N. E. Rep. 232 
 
 2 St. Paul & D. R. Co. v. City of Du- [1888]. 
 
 luth (Minn.), 58 N. W. Rep. 159. 5 Hoester v. Hemsath, 16 Mo. App. 
 
 3 Davis v. Londgreen, 8 Neb. 43. 485. See Rath v. Zimbleman (Neb.), 68 
 ' *Vernum v. Wheeler (N. Y.), 35 Hun N. W. Rep. 488. 
 
 53. And see Mitchell v. N. Y. L. E. & 6 Bennett v. Murtaugh, 20 Minn. 151.. 
 
l8l. OPERATIONS PRELIMINARY TO CONSTRUCTION. I2O 
 
 that the eaves project over neighboring land, or so that they touch a 
 neighbor's wall, and injury results, the owner of the building causing such 
 injury will be liable in damages. 1 When a slanting roof was built so close to 
 the boundary -line that in heavy storms the water was thrown over the line 
 onto the building-wall of the neighbor, softening and destroying the mortar 
 between the stones to such an extent as to weaken the wall, it was held that 
 the owner of the roof was liable for the damage. 2 The right to flood the 
 land of another, whether from the dripping from the roof of a building or 
 otherwise, is an interest in the land, and a parole license or agreement giving 
 such right is within the statute of frauds, and void. Such a license is 
 revocable at any time; it should be granted by deed. 3 
 
 181. Eaves-troughs, Gutters, and Conductors. Where the eaves of a 
 building project over the boundary-line, and the neighbor, in erecting a 
 wall for a building, saws them off to make room for his wall, and while in 
 this condition a storm occurs which throws large quantities of water upon 
 the wall to its injury, still the owner of the building causing the injury is 
 liable for the damages, and the fact that the eaves of the projecting roof had 
 been provided with a trough to carry away the water from the roof will not 
 relieve him from damages. 4 Buildings must be provided with proper eaves- 
 troughs or gutters, and these must be kept in proper repair to relieve their 
 owner from damages arising from injury to his neighbor. If gutters or eaves- 
 troughs have been constructed and of sufficient capacity to carry off such 
 rains as may reasonably be expected, there will be no liability for injuries 
 caused by extraordinary rains, such as experience and prudent foresight would 
 not have guarded against. 5 Ordinary rains have been denned as all usual and 
 always-to-be-expected rains in various seasons of each year, and "extraordi- 
 nary rains " as those that do not recur nor are reasonably to be expected yearly. 6 
 
 It is no excuse for one who has permitted water from his roof to be dis- 
 charged against the wall of another's building to its injury, that if the said 
 wall had been well built no damage would have been sustained. 5 If the land 
 of two property owners be divided by a party-wall, and its height has been 
 increased by one owner, and a roof erected in such a manner as to turn water 
 upon his neighbor's roof below, and large icycles are formed on the wall as 
 it is carried up, which overhang the neighbor's building and, being detached, 
 fall upon the roof and injure it, he will be held liable for the injuries, and 
 may be restrained from continuing such a nuisance by injunction. 7 
 
 It is not necessary that injury be suffered by the one upon whose roof 
 water is unlawfully discharged. The defendant is entitled to nominal 
 
 1 Tanner v. Valentine, 75 111.624 [1874]. Aurora v. Reed, 57 111. 30. 
 
 2 Copper v. Dolvin, 68 la. 757; accord, * Copper v. Dolvin, 68 la. 757. 
 Martin v. Simpson (Mass.), 6 Allen 102. 5 Gould v. McKenna, 86 Pa. St. 297. 
 
 3 Tanner v. Valentine, 75 111. 624 6 Meister v. Lang, 28 111. App. 624. t 
 [1874]; Stout v. McAdams, 2 Scam. 67; 'Brooks v. Curtis (N. Y.), 4 Lans. 287. 
 Nevins v. Peoria, 41 111. 502; City of 
 
121 RIGHTS IN REGARD TO SURFACE-WATERS. 183. 
 
 damages, at least for the invasion of his rights. 1 The projection of eaves over 
 the boundary-line of one's neighbor is a nuisance for which damages will be 
 awarded without any proof of special damages. 2 
 
 182. Discharge of Eoof-waters, Snow, and Ice into Street. Buildings in 
 villages or cities which are erected on or close to the line of the street must 
 be so designed and erected that snow and ice falling from the roof shall not 
 be precipitated upon persons lawfully using the streets. The roof of the 
 building so constructed as to permit snow to fall into the street is, in the 
 judgment of the law, a nuisance, and the owner liable to persons injured by 
 falling snow or ice. 3 A tenant of such a building may be liable if by the use 
 of ordinary care the accident could have been prevented. 4 
 
 The liability for the consequence of rain dripping from the roof has been 
 held not absolute, but to exist only when the injury arises from some fault or 
 neglect of duty. 5 
 
 Roof-water may be collected and discharged from a water-spout into an 
 alley at grade, without being liable for the flooding it occasions to adjoining 
 lands which are not protected against the grade of the alley. 6 
 
 183. Easement of Eaves-drip. The right to discharge water from roofs 
 upon adjoining lands may be acquired by continued adverse use for the pre- 
 scriptive or statutory period, but an easement of eaves-drip will not justify the 
 erection of troughs and spouts to collect the rain-water and discharge it upon 
 land in a stream. 7 When one has acquired an easement for the drip of his 
 eaves, it has been held that the raising of the roof to a greater height did not 
 destroy his right if the adjoining land was not subjected to any greater 
 burden by the alteration. 8 
 
 Where two buildings are so situated that the water from the roof of one 
 can only be prevented from flowing against and injuring the other by an 
 eaves-trough attached to both, though the consent and cooperation of the 
 owner of the building receiving the injury may be necessary, yet the duty of 
 affirmative action is on the owner of the building which causes the injury, and 
 he may not lie by and see the water from his roof destroy his neighbor's 
 wall, and rely for his protection upon the passiveness of his neighbor. 9 The 
 defendant may be held liable whether he was responsible for all or only a part 
 of the injury. 10 
 
 The respective duties which adjoining proprietors mutually improving 
 their property in a town owe to one another are those only which the 
 
 1 Hooten v. Barnard, 137 Mass. 36. 7 Reynolds v. Clark, 2 Ld. Raym. 1399. 
 
 2 Fay v. Prentice (Eng.), i C. B. 838. Grace M. E. Church v. Dobbins (Pa; 
 
 3 24 Amer. & Eng. Ency. Law 941. Sup.), 25 Atl. Rep. 1120. 
 
 4 Clifford v. Atl. Cot. M., 146 Mass. 47. 8 Harvey v. Walters, L. R. 8 C. P. 162; 
 
 5 Barry v. Peterson, 48 Mich. 263; Thomas v. Thomas, 2 C. M. & R. 34. 
 Chandler v. Lazarus (Ark.), 18 S. W. 9 Underwood v. Waldron, 33 Mich. 232 
 Rep. 181. [1878]. 
 
 6 Phillips v. Waterhouse (Iowa), 22 10 Chandler v. Lazarus (Ark.), 18 S. W. 
 The Reptr. 330. Rep. 181. 
 
184. OPERATIONS PRELIMINARY TO CONSTRUCTION. 122 
 
 requirements of good neighborhood in such a town would impose, i.e., each 
 must use all due care and prudence to protect his neighbor, but is not bound 
 at all events and under all circumstances to protect his neighbor, and any 
 injury that may result notwithstanding the observance of proper caution 
 must be deemed incident to the ownership of town property, and can give na 
 right of action. Injuries from extraordinary or accidental circumstances for 
 which no one is in fault must be left to be borne by those on whom they fall. 1 
 
 184. Drainage of Surface-waters into Watercourses, A property owner 
 may drain waters from his land into streams or natural watercourses, and 
 such a right to drain is not limited to the discharge of surface-waters in the 
 same manner as when the land was in its natural state. The flow of surface- 
 water may be changed and controlled by ditches and in other ways which 
 accelerate the flow or increase the volume of water which reaches the stream. 
 If in doing this he makes only a reasonable use of his premises, he exercises 
 his legal right and incurs no liability to the lower owner. 2 A mine-owner 
 may pump water from his land into a stream although the quantity of water 
 in the stream be increased. 3 The natural capacity of the watercourse must 
 not be overburdened to the injury of lower riparian owners. 4 
 
 A lot flooded with surface-water from another building lot, flowing into 
 an alley or street at the established grade, does not give the lot-owner a 
 cause of action. 5 Surface-water from a garden, carrying solid matter into a 
 mill-pond, does not give the mill-owner a cause of action. 
 
 Surface-water collected in the catch-basins or gutters beneath the surface 
 of the road, and which percolates through the soil into a cellar upon a lot 
 adjoining, gives no cause of action against the town. 7 
 
 The right to have water drained from its property through the natural 
 channel exists in favor of a municipal corporation to the same extent as in 
 favor of a private individual. 8 
 
 The owner of land bounded upon a watercourse has the right to all 
 advantages of drainage which the stream reasonably used affords, and he may 
 drain his land into the stream. 9 
 
 Pits made by excavating for clay or building-stones and which form a 
 natural reservoir into which surface-water collects may be emptied into a 
 stream, even though the quantity be greater than it would otherwise have 
 been, if the natural capacity of the watercourse be not exceeded. When such 
 
 1 Underwood v. Waldron, 33 Mich. 232 6 Middlesex Co. v. McCue, 149 Mass. 
 
 [1876]. 103. 
 
 8 Waffle v. N. Y. Cent. R. Co.. 53 N. Y. 7 Kennfson v. Beverly, 146 Mass. 467. 
 
 II ; McCormick v. Horan, 81 N. Y. 86. But see Toledo v. Grasser, 12 Ohio C. C. 
 
 3 Penn. Coal Co. v. Sanderson, 113 Pa. 520, where water escaped from a sewer. 
 
 St. 126. 8 Keithsburg v. Simpson, 70 111. App. 
 
 *Noonan v. Albany, 79 N. Y. 470; Me- 467 [1896]. 
 
 Cormick v. Horan, 81 N. Y. 86; Rudel v. 9 24 Amer. & Eng. Ency. Law 924, 925; 
 
 Los Angeles Co. (Cal.). 50 Pac. Rep. 400. Waffle v. N. Y. Central R. Co., 53 N. Y. 
 
 5 Phillips v. Waterhouse, 69 la. 199. II [1873], 
 
123 RIGHTS IN REGARD TO SURFACE-WATERS. 185. 
 
 waters are pumped from the ditch into a watercourse, such watercourse may 
 not be obstructed by lower riparian owners to the injury of the owner of the 
 pit or quarry, 1 and although the quantity of water in the stream is thereby 
 increased in time of high water and diminished at other times to the damage 
 of a riparian proprietor below. 2 
 
 The owners of swamps, the waters of which naturally flow into natural 
 watercourses, can make such canals in the swamps as are necessary to drain ' 
 them of the water naturally flowing therein, though in so doing the flow of 
 water in the natural watercourse is increased, whereby the water is discharged 
 on the land of a person abutting on such watercourse. 3 
 
 185. Prescriptive Rights to Drainage of Surface-water. It is a general 
 principle of the law of prescription that there can be no prescriptive right 
 where there is no adverse user, and that there can be no adverse user without 
 such use gives a right of action.* In those states which follow the common- 
 law rule as to obstruction and repulsion of surface-waters f it is held that no 
 lapse of time gives a right to drain surface-water in its natural state upon his 
 neighbor's land. This result necessarily, follows from the fact that the dis- 
 charge of the water in its natural condition, or its obstruction or repulsion, 
 gives no cause of action. 4 In those states where the civil law prevails, f the 
 owner of the lower land may, by obstructing the flow of surface-waters for 
 the necessary period without interruption, acquire a right by prescription to 
 dam back such surface-waters that overflow such higher lands. 
 
 It is an actionable wrong, anywhere, for an owner of upper Uands to 
 collect surface-water in a ditch, drain, or other artificial stream, and cast it 
 in a volume on the lower lands; therefore a right to so collect and discharge 
 surface-waters may be acquired by prescription. In order to establish a pre- 
 scriptive right to discharge waters upon lower lands, the owner of higher 
 ground must have used the same ditch or channel for the full prescriptive 
 period. 5 He cannot change the method of discharge and claim a right to 
 discharge waters in the altered manner or in a different quantity. 
 
 Adverse user does not exist where the discharge of water is under license 
 or by consent or permission of the owner of the low lands; and under siach 
 license no prescriptive right is acquired. \ One who has a license from a town 
 to fish and sail on a reservoir during his natural life cannot, by the use of 
 such license, obtain an absolute title by prescription. 6 A request by a mill- 
 dam owner for permission from riparian landowners to use. a flash-board on 
 
 1 McCormick v. Horan, 81 N. Y. 86. ^24 Amer. & Eng. Ency. Law 937. 
 
 2 Waffle v. New York Central R. Co., 5 Leidlein v. Meyer (Mich.), 55 N. W. 
 53 N. Y. n [1873]. But see Rudel z/. Rep. 367. 
 
 Los Angles Co., 50 Pac. Rep. 400. 6 Dunham v. New Britain (Conn.), II 
 
 3 Mizell v. McGowan (N. C.), 26 S. E. Atl. Rep. 354 [1888]. 
 Rep. 783- 
 
 * See Sees. 326, supra, and 511-540, and 682-690, infra 
 
 \ See Sees. 175-178, supra. 
 
 J See Sees. 682-690, infra, Prescription. 
 
1 86. OPERATIONS PRELIMINARY TO CONSTRUCTION. 124 
 
 his dam, thus raising the water, is a sufficient acknowledgment of a superior 
 right to defeat the subsequent acquisition of a prescriptive right to use a flash- 
 board. 1 
 
 Where surface-water collected in a natural depression, partly on defend- 
 ant's land, but mostly on plaintiff's, has been used by the latter for many 
 years to float logs, his adverse user, for ten years (in Mississippi), of a dam to 
 raise the water gives him a right, as against defendant, to maintain the water 
 at its artificial stage. 2 The measure of prescriptive right has been held not 
 to be the dimensions of the drain, but the quantity of water discharged. 3 
 
 186. Control and Regulation of Surface-waters by Municipal Corpora- 
 tions, In the absence of any constitutional provision or statutory enactment 
 to the contrary, the city incurs no liability to abutting owners on streets for 
 injuries resulting to their property from the improvement, the grading or 
 regrading of the city streets, if the work has been done in pursuance of 
 authority conferred upon the city, and if the work has been executed in a 
 prudent, careful, and skillful manner, so as to cause no unnecessary damage. 
 The construction of drains, sewers, and gutters falls within this rule. 
 
 Such work is within the discretion of the city. For the mere failure or 
 refusal to exercise it the city incurs no responsibility. 4 A city is not liable 
 to the owner of private premises within its boundaries for failing to provide a 
 system of sewerage to carry away from such premises surface-water naturally 
 coming thereon. 5 
 
 There is no obligation upon a city to continue in use a sewer or drain 
 which it has built. It may wholly discontinue or abandon it without incur- 
 ring liability to abutting owners, if the discontinuance or abandonment does 
 not leave them in any worse condition than they would be if the drain or 
 sewer had never been built. 6 If a city has provided a means of draining 
 abutting property by. gutters and sewers in the street, and makes subsequent 
 changes in the grading of said street which destroy the drainage, there is no 
 obligation on the city to provide new means for the same purpose. 7 
 
 No liability arises for injury occasioned to land from being flooded with 
 surface-water of the street which the city has neglected to drain. House-lots 
 flooded with surface-water in consequence of a change of grade or alteration 
 of the contour of the ground by constructing or grading the street are subject 
 to such burdens, the injury from which no damages may be recovered against 
 the city. The city may even prevent such surface-water from flowing into 
 the street from a house-lot without incurring liability. 8 
 
 1 Weed v. Keenan (Vt.), 13 Atl. Rep. Duluth (Minn.), 58 N. W. Rep. 159. 
 804 [1888]. 6 Atchison v. Challis, 9 Kan. 603. See 
 
 2 Alcorn v. Sadler (Miss.), 14 So. Rep. Collins v. Waltham, 151 Mass. 198. 
 
 444; Leidlein v. Myer (Mich.), 55 N. W. 7 Henderson v. Minneapolis, 32 Minn. 
 
 Rep. 367. 319; Waters v. Bay View, 61 Wis. 642 
 
 3 Chappel v. Smith, 80 Mich. 100. [1884], and cases cited. 
 
 4 24 Amer. & Eng. Ency. Law 942. 8 Keith v. Brocton, 136 Mass. 119; 
 
 5 'St. Paul & D. R. Co. v. City of Kehrer v. Richmond (Va.), 22 The Reptr. 
 
125 RIGHTS IN REGARD TO SURFACE-WATERS. 1 88. 
 
 Where a municipal corporation, by grading and paving streets, prevents 
 the absorption of rain, which is consequently discharged on adjoining land in 
 greater quantities than it would otherwise have been, the municipality is not 
 liable for the damages caused thereby, as it cannot be compelled to construct 
 drains to dispose of surface-water. 1 
 
 187. Surface-water Discharged or Detained by Grading Streets, A city 
 incurs no liability by filling up and grading its streets, even though it prevent 
 surface-waters from adjoining lots flowing upon the street, or cause surface- 
 waters to flow from such streets upon such lots, and to flow upon them in a 
 different way and in larger quantities than before. When a city has exercised 
 its discretion as to where it will build a sewer, and what water it will conduct 
 into an existing sewer, and what drains it will connect therewith, its decision 
 is not subject to review or question in the New York courts. 2 Nor is a city 
 bound to furnish drains or sewers to relieve a lot of its surface-water. 3 * 
 
 A city lot-owner has a right to bring his lot to grade and thereby prevent 
 surface-water, which has been turned there by the city in improving its 
 streets, from flowing over it. 4 
 
 188. Liability of City for Defective Plans for Drainage. The adoption 
 of a plan for the grading of a street has been held to involve the exercise of 
 discretionary and judicial powers on the part of municipal officers, and that 
 no liability exists for damages sustained by reason of a defect in the plan. 5 
 
 Authority conferred upon cities to determine where drains and sewers 
 should be built has been held in the nature of judicial powers, and to depend 
 upon considerations affecting the public health and general convenience. 
 For a mere error of judgment in the plan or system adopted the city is 
 frequently held not liable. It has even been declared that " if a municipality 
 adopt a plan however inefficient, and constructs its drains and sewers in con- 
 formity thereto, and injury results in consequence of the plan being defective 
 or of the drains or sewers being deficient in size and inadequate to accommo- 
 date all the waters which, if the drains were larger, would naturally flow 
 through them, there is no resulting liability." 6 
 
 It is submitted that this is not a precise statement of the law. Many 
 cases have held that it was negligence of the officers of a municipal corporation 
 to assume such professional and expert duties as they are not qualified to 
 
 219 [1886]; Phillips v. Waterhouse (la.), Rep. 266. But see Edwards v. Peoria, 
 
 22 The Reptr. 330 [i886|; Churchill v. 66111. App. 68. 
 
 Beeth (Neb.), 66 N. W. Rep. 992; * Cedar Falls v. Hansen (la.), 73 N. W. 
 
 Borough of West Bellevue v. Huddlen Rep. 585 [1897]. But see Davidson v. 
 
 (Pa.), 16 Atl. Rep. 764 [1889]. Sanders, i Pa. Super. Ct. Rep. 432, 
 
 1 Anchor Brew. Co. v. Dobbs Ferry where a landowner negligently changed 
 (Sup.), 32 N. Y. Supp. 371. the grade of his lot. 
 
 2 Lynch v. The Mayor, 76 N. Y. 60; 5 24 Amer. & Eng. Ency. Law 945; 
 Jordan v. Benwood (W. Va.), 26 S. E. Sullivan, Town of v. Phillips (Ind.), u 
 Rep. 266. N. E. Rep. 300 [1887]. 
 
 3 Jordan v. Benwood (W. Va.), 26 S. E. 6 24 Amer. & Eng. Ency. Law 945. 
 
 * See Sec. 186, supra. 
 
189. OPERATIONS PRELIMINARY TO CONSTRUCTION. 126 
 
 undertake ; that for public officers to undertake to pass upon the efficiency 
 and suitableness of a sewer or system of sewers for a city or community was 
 such negligence as would render the city liable for their want of due and 
 ordinary care. As well might city officials undertake the treatment of 
 diseases in the wards of a public hospital, or to defend actions brought against 
 the city in a court, as to undertake to plan a system of drains or sewers or 
 any other important public improvement that the needs of the city require. 
 There can be no doubt but that a city would be liable to a patient confined 
 in a pest-house for treatment furnished him which was not of a professional 
 and reasonably skillful character. A municipal corporation in one case is 
 the guardian of the public health and must guarantee to its citizens over 
 whom or whose property it assumes control that they or their property shall 
 not be neglected, but shall have proper and skillful services of professional 
 men. If property is subject to injuries from sewers or other structures, it is 
 .a want of ordinary care for the agents of such cities to undertake professional 
 duties for which they have no special preparation or skill. 1 Many cases hold 
 that a city must exercise due care and skill in the selection of a plan, and 
 must furnish drains and sewers of sufficient capacity to carry off all the water 
 -which may reasonably be expected to accumulate. 2 
 
 Some of the cases cited are doubtless decided on the ground that the 
 necessity for the sewers or drains was occasioned by the act of the city in 
 collecting the water, and that therefore it were bound to furnish adequate 
 means of drainage; others perhaps on the ground that it was negligence for 
 -officers of a city without special qualifications to select a design for sewers. 
 A plan adopted by a city for a structure must be a reasonable one; and if it is 
 not, inquiry may be made as to how it was adopted ; and if negligence can be 
 shown, or want of ordinary and reasonable care, in its adoption, then the city 
 may be held for negligence. 
 
 189. Liability for Defective Construction or Inferior Materials, After 
 a plan has been adopted, the manner of its execution is, with respect to the 
 rights of citizens, a ministerial duty, and for any negligence or unskillfulness 
 in the execution or construction of the work, whereby injury is inflicted upon 
 private property, the city will be held responsible. 3 If the city cut a gutter 
 and thereby caused the surface-water, which had theretofore flowed by natural 
 outlet, to flow along the gutter, and the said gutter was so negligently con- 
 structed as to cause the water to percolate into plaintiff's basement, and to 
 cause the floor to crack, etc., to plaintiff's damage, the city is liable. 4 
 
 1 Wait's Engin. and Arch. Jurisp., Sec. Ellis v. Iowa City, 29 la. 229. 
 245-247. _ 3 Hitchins v. Frostburg, 68 Md. 100. 
 
 2 Spangler v. San Francisco, 84 Cal. 17; And see North Vernon v, Voegler, 103 
 Aurora v. Lode, 93 111. 521; Dickson v. Ind. 316. 
 
 Baker, 65 111. 518; Indianapolis v. Huffer, 4 Comanche v. Zettlemoyer (Tex.), 40 
 
 30 Ind. 235; Weis v. Maddeson, 75 Ind. S. W. Rep. 641. 
 241; Evansville v. Decker, 84 Ind. 325; 
 
127 RIGHTS IN REGARD TO SURFACE-WATERS. IQI. 
 
 190. Accumulation and Discharge of Waters upon Private Lands. If a 
 
 city change the natural flow of water and divert it into another direction, and 
 cause it to flow in large quantities upon abutting premises, the corporation is 
 liable in damages without regard to the efficiency of the plan and whether the 
 work was negligent or not. 1 
 
 The accumulation of a large volume of water in one channel by the city 
 or a person, imposes a duty to see that suitable provision is made for the 
 escape of waters into a natural watercourse or such other channel as will carry 
 it off without injury. If such accumulated waters therefore are cast upon 
 private property to its injury on account of the insufficiency of a drain or 
 sewer the city must respond in damages. 2 Where surface-water is collected 
 in gutters and conducted to the mouth of a sewer which is insufficient, and 
 which, by reason thereof, flows upon private property, the city will be liable. 
 The construction of public works is a ministerial act and must be performed 
 in a skillful, prudent, and careful manner, so as not to injure private 
 property. A city is liable for the unskillful manner of performing work upon 
 public improvements. It is held liable for negligence in grading a street so 
 as to turn water upon abutting owner's land. 3 * However, it is submitted 
 that in these cases there must have been elements of negligence and a failure 
 to exercise ordinary care. 4 
 
 191. Obstruction, Diversion, and Repulsion of Surface-waters by Rail- 
 roads. One of the most common obstructions of surface-waters is that of 
 railroad embankments. When a railroad passes across or through a valley 
 and over the lowlands, it is essential that the track be elevated upon embank- 
 ments or trestles, so as to escape high waters due to freshets. These long, 
 continuous embankments obstruct the passage of surface- and flood-waters 
 and greatly increase the flow through natural channels of the stream. 
 
 In the application of the law to such obstruction and detention of waters, 
 and in the absence of express statutory enactment, railroads are liable to 
 the same extent and in the same manner as individual landowners in the 
 management and improvement of their land, f In the absence of a special 
 legislative enactment, they are liable under the same rules and laws for the 
 detention, obstruction, and diversion of surface-waters. 5 
 
 In those states which have adopted the rule of the common law J any 
 
 1 24 Amer. & Eng. Ency. Law 946, Rep. 266; Carll v. Northport (Sup.), 42 
 many cases cited. But see Myers v. Nel- N. Y. Supp. 576. 
 
 son (Cal.), 44 Pac. Rep. 801, and see 3 Cotes v. Davenport, 9 la. 227; Ellis 
 
 Rutherford v. Holly (N. Y.), n N. E. v'. Iowa City, 29 la. 229. 
 
 Rep. 818 [1887]. 4 Wallace v. Musketine (la.), 4 Green. 
 
 2 Sullivan v. Phillips (Ind.), n N. E. 373- 
 
 Rep. 300 [1887]; Baltimore Brew. Co. 5 Egener v. New York, etc., Ry. Co. 
 
 v. Ranstead (Md.), 28 All. Rep. 273; (Sup.), 38 N. Y. Sup. 319; Yazoo, etc., R. 
 Jordan v. Benwood (W. Va.), 26 S. E. Co. v. Davis (Miss.), 19 So. Rep. 487. 
 
 * See Sees. 186-188, supra. f See Sees. 112-121, supra. 
 
 \ See Sees. 175-178. infra. 
 
191. OPERATIONS PRELIMINARY TO CONSTRUCTION. 12$ 
 
 injury which results, to the property taken, from the obstruction and holding 
 back of surface-waters by the construction of embankments is usually con- 
 sidered by the jury or commissioners in assessing or awarding damages for 
 the property taken ; but when no part of the property of the plaintiff has been 
 taken, but the railroad has been constructed ' upon adjoining property, then 
 he will not have been awarded damages, and he has been held entitled to 
 compensation for his injuries. 
 
 A landowner whose property is flooded by the obstruction of the flow of 
 surface-waters has no cause of action for injuries suffered in those states 
 which have adopted the common-law rule. The grant of a right of way for a 
 railroad has been held to include a right to make all necessary embankments, 
 ditches, etc. ; and if the flow of surface-water from the remaining lands of the 
 grantor be obstructed by such embankments and structures, the grantor 
 cannot recover damages from the company. A property owner should 
 anticipate such obstruction and stipulate, in his grant of a right of way, for 
 openings, culverts, and trestles which shall provide a discharge for the 
 drainage of his land. l 
 
 In those states which follow the rule of the civil law * there is no pre- 
 sumption that when a railroad acquired its right of way compensation was 
 made for such injuries as would result from the damming back of the surface- 
 water by the embankment or other structures. Railroad rights of way have 
 been held subject to the same easement or servitude of drainage for such 
 surface-waters as naturally flow from the higher ground as are the lands of 
 adjoining owners. Any obstruction or improper interference with such flow 
 of drainage to the damage of higher landowners is an actionable wrong. 
 
 The company must provide adequate drainage of the adjoining lands, by 
 the construction of culverts, ditches, or other means, and such culverts and 
 other openings must be of ample capacity to discharge the ordinary and 
 usual flow of surface-waters. They need not be designed and constructed so 
 as to provide for extraordinary floods and excessive rainfalls which cannot be 
 foreseen by reasonable investigation. 2 They are sometimes required to 
 provide drainage by express statute. 3 
 
 A cause of action for damage to land overflowed by reason of the con- 
 struction of a railroad bed without provision for draining off surface-water 
 accrues at the date of the overflow and not when the railroad is built. 4 
 
 A railroad company which permits the surface-water flowing on other 
 land to accumulate on its right of way is liable for damage done to other 
 
 1 McCormick v. Kansas City, etc., R. (Tex.), 24 S. W. Rep. 306; Galveston, 
 Co., 57 Mo. 433 [1874]. etc., Ry. Co. v. Parr (Tex.), 28 S. W. Rep. 
 
 2 24 Amer. & Eng. Ency. Law 950-953. 264. 
 
 3 Dobbins v. Missouri, etc., R. Co. 4 Bonner v. Wirth (Tex.), 24 S. W. Rep. 
 (Tex.), 41 S. W. Rep. 62; Bonner v. Wirth 306. 
 
 * See Sees. 175-178, supra. 
 
129 RIGHTS IN REGARD TO SURFACE-WATERS. 193. 
 
 persons by allowing it to be discharged on their land in accumulated 
 quantities. l 
 
 192. Liability for Negligent Construction. In general a railroad com- 
 pany must exercise reasonable care in the design and erection of its structures, 
 for it will be liable if the construction is negligent. 2 If without extra expense 
 a culvert or a trestle could have been erected in place of an embankment 
 which has caused the damage, the railroad company will be liable. 3 
 
 Where a railway company, for the purpose of properly constructing its 
 roadbed, takes earth from one part of its premises and uses it upon the road- 
 bed, thus leaving a ditch along each side of it, in the usual way of construct- 
 ing railways in level countries, the company will not be liable to an adjoining 
 landowner through whose premises a right of way has been properly 
 condemned and paid for, on account of injuries caused by surface-water, 
 even though the effect of such ditches and roadbed may be to prevent surface- 
 water, which before flowed upon the land, from coming upon it, or to draw 
 from adjoining land surface-water which would otherwise remain there, or to 
 shed surface-water over land on which it would not otherwise go. 4 
 
 193. Measure of Damages Due to Surface-waters, When lands are 
 flooded and are totally destroyed by the wrongful act of another, the owner is 
 entitled to recover actual and cash value of his land at the time of its destruc- 
 tion, with legal interest thereon to the time of trial. 5 If the land has suffered 
 permanent injury, but is not totally destroyed, the owner may recover the 
 difference between the actual cash value immediately preceding the injury 
 and its value thereafter, with legal interest. If the injury be temporary only, 
 the owner will be entitled to recover the amount necessary to repair the injury 
 and put the land in the condition in which it was immediately preceding the 
 injury, with interest. 
 
 The courts have not invariably followed this rule, but it is without doubt 
 the general measure of damages. Thus when gravel had been washed down 
 on plaintiff's land, it was held that the measure of damages was the deprecia- 
 tion in value of the premises and not the cost of removing the gravel. 6 
 When the injury is temporary, but deprives the owner of the use of his. 
 property or his house, he may recover the value of such use in addition to the 
 cost of repairs. The measure of damages may be the diminished rental of the 
 premises during the continuance of the wrongful act. The probable benefits. 
 
 1 Borchsenius v. Chicago, St. P. M. & 19 So. Rep. 199; Shane v. Kansas City,. 
 O. R. Cc. (Wis.), 71 N. W. Rep. 884, etc., R. Co., 71 Mo. 237; Sinai v. Railway 
 citing Bowlsby v. Speer, 31 N. J. Law Co.. 71 Miss. 547; Henry v. Ohio River 
 351. R. Co. (W. Va.), 21 S. E. Rep. 863. 
 
 2 St. Louis, etc., Ry. Co. v. Craigo 4 Missouri Pac. Ry. Co. v. Renfro 
 (Tex.), 31 S. W. Rep. 207; Galveston, (Kan.), 34 Pac. Rep. 802. 
 
 etc., Ry. Co. v. Parr (Tex.), 28 S. W. Rep. 5 Trinity, etc., R. Co. v. Schofield, 72 
 
 264; Texas, etc., Ry. Co. v. Padgett Tex. 499. 
 
 (Tex.), 37 S. W. Rep. 92; McCormick v. 6 Easterbrook v. Erie R. Co. (N. Y.), 51 
 
 Kans. C., etc., R. Co., 57 Mo. 433 [1874]. Barb. 94. And see 24 Amer. & Eng. 
 
 8 Canton, etc., R. Co. v. Paine (Miss.), Ency. Law 954-956. 
 
IQ4- OPERATIONS PRELIMINARY TO CONSTRUCTION. 130 
 
 \to be derived from the cultivation of the soil are regarded as too speculative 
 and uncertain to afford a criterion of damage, and no recovery can be had 
 therefor. If the owner recover for the injuries sustained to his realty, crops, 
 household goods, and supplies, he may not also recover for the decrease in the 
 rental value of the premises, as such a recovery would be in effect a double 
 recovery for the same damage. 1 
 
 .When plaintiff's wall, supporting the street several feet above his lot, and 
 his house foundation had been shoved out of place and the house destroyed, 
 by defendant's wrongful obstruction of surface-water, it was held no error to 
 charge that the damages cannot be exactly calculated; that they are neces- 
 sarily indefinite, and that plaintiff need only show the facts from which the 
 jury can fairly estimate the injury done; that the cost is some evidence of 
 value, but not conclusive; and that the measure of damages was what the 
 improvements were worth on that particular lot, less the value of the 
 materials remaining. 2 
 
 The owner of the injured premises is entitled to compensation for any 
 diminution in the market value of the land; but if the market value be 
 increased, and the building be damaged, the amount of increase cannot be set 
 off against the damage to the building. 3 
 
 A landlord may not recover damages and inconvenience suffered by his 
 tenants, but only for the recovery to the buildings and premises and for his own 
 actual loss suffered The landlord has no such interest in the growing crops 
 of his tenants as will enable him to maintain an action for the injury to them. 
 If crops are destroyed, the measure of damages is the value of such crops 
 with interest from the time of destruction. As to whether the injury amounts 
 to the total or only the partial destruction of value, whether it be permanent 
 or temporary, as well as the extent of the injury and the damages consequent 
 to it, are all questions for the jury under proper instructions. If the overflow 
 of the premises create sickness and render them unwholesome, this is an 
 element of damage, and evidence of these facts may be properly admitted. 
 If malice or wantonness on the part of the defendant be shown, the party 
 injured may recover exemplary as well as compensatory damages. 
 
 194. Measure of Damage from Diversion of Surface-waters. If per- 
 manent injury to the premises result from diversion, the proper measure^of 
 damages is the difference between the market value of the property before the 
 injury and that after it. 4 In some cases consideration is given to the effect 
 upon its present use and upon its permanent value. 5 
 
 Usually the damages . assessed are the difference in the market value 
 immediately before and immediately after the diversion of the stream, if the 
 
 1 24 Amer. & Eng. Ency. Law 955. 700 [1897]. 
 
 2 Lucot v. Rodgers (Pa. Sup.), 28 Atl. *Shenango, etc., R. Co. v. Braham, 79 
 Rep. 242. Pa. St. 447. 
 
 3 Farkas v. Towns (Ga.), 29 S. E. Rep. 5 Finley v. Hershey, 41 la. 389. 
 
!$! RIGHTS IN REGARD TO SURFACE-WATERS. 1 95- 
 
 injuries are permanent, 1 and not the amount paid for repairs. 2 In an action 
 against a town for turning water from a highway upon abutting land, the 
 measure of damages was held to be the actual damage done, and evidence as 
 to the difference between the market value of the land before and after the 
 injury was held inadmissible. 3 
 
 The measure of permanent damages caused by an .overflow due to a 
 structure has been held to be "the difference in the value of the land in its 
 condition when the right of action accrued and what its value would have 
 been if the structure had been skillfully erected," and not " the difference in 
 value of the land before the road was built and the value after it was built." 4 
 
 Another case makes the measure of damages such a sum as will put the 
 land in as good condition as it was before the flooding, together. with com- 
 pensation for any loss of use during the time it was rendered unfit for occupa- 
 tion. 5 Proof as to the cost of restoring the land, and of the diminution in 
 its market value, is alike admissible in an action for damages, as either measure 
 is likely to obtain according as the one or the other is found to be the less. 6 
 The damages are limited to those sustained prior to the date of the writ. 7 
 
 Where plaintiff's land was overflowed and damaged by reason of a diver- 
 sion of surface-water from its natural outlet, he was entitled to permanent 
 damages. 8 
 
 195. What Damages may be Assessed. The damages assessed must be 
 reasonable and proportionate to the amount suffered. A verdict of $500 for 
 the flowage of land will be set aside on appeal where the land flowed was not 
 more than one thirtieth of an acre, and the rental value was $2.50 per acre, 
 and the land had been overflowed but three years. 9 . 
 
 Evidence of additional expense of shipping bricks to market by reason of 
 the obstruction of plaintiff's water front by a railroad structure (track) was 
 held admissible in proving damages. 10 The plaintiff is entitled to such 
 damages as he has sustained. n 
 
 When land has been overflowed and softened and made muddy, it has been 
 held that the value of stock killed and injured from being mired, and the 
 reasonable expense of guarding and treating the animals, were proper items 
 of damage. 12 
 
 ^ummings v. Toledo, 12 Ohio C. C. App. 467. 
 
 650; Hanover W. Co. v. Ashland I. Co., 6 Hartshorn v. Chaddock (N. Y. App ), 
 
 84 Pa. St. 279; San Antonio, etc., R. Co. 31 N. E. Rep. 997. 
 
 v. Mohl (Tex.), 37 S. W. Rep. 22. But 7 Williams v. Camden R. W. Co. 
 
 see Bare z/. Hoffman, 79 Pa. St. 71- (Me.), n Atl. Rep. 600 [1888]. 
 
 2 Toledo z>. Grasser, 12 Ohio C. C. 520. 8 Parker v. Norfolk & C. R. Co. (N. C. ), 
 
 3 Eshleman v. Township of Martic (Pa. 25 S. E. Rep. 722. 
 
 Sup.), 25 Atl. Rep. 178. 9 Tucker v. Chicago & A. R. Co., 2 Mo. 
 
 4 Parker v. Norfolk & C. R. o. (N. App. Rep. 1328. 
 
 C.I, 25 S. E. Rep 722. But see Missouri, 10 Rumsey v. New York, etc., R. Co. 
 
 etc., Ry. Co. v. Graham (Tex.), 33 S. W. (N. Y. App.), 30 N. E. Rep. 654- 
 
 Rep. =76, andSzn Antonio, etc., R. Co. " Rumsey v. N.Y., etc., R. Co., pr*' 
 
 v. Mohl (Tex.), 37 S. W. Rep. 22. 12 Hughes v. Austin (Tex.), 33 S: W. 
 
 5 City of Keithsburg v. Simpson, 70 111. Rep. 607. 
 
CHAPTER XII. 
 FOULING AND POLLUTION OF SURFACE-WATERS AND STREAMS. 
 
 201. Pollution of Streams and Bodies of Water, An owner of land on a 
 natural stream has a property right in the water, and a right to have it flow 
 in its natural state over and along his land in its usual volume and purity. 
 This right extends to the quality of water as well as to the quantity. 1 If the 
 waters of a stream or pond are fouled by the operation of works, mills, or 
 manufactories, the parties operating them are liable in damages to the parties 
 owning the water rights for the damages suffered, or the operation of the 
 works may be prevented and the pollution stopped by an injunction. 
 
 202, What Constitutes a Fouling of Waters. " It is not every impurity 
 imparted to the water, however small in degree, that will be the subject of an 
 injunction [or of damages]. All running streams are, to a certain extent, 
 polluted; and especially so are they when they flow through populous regions 
 of the country, and the waters are utilized for mechanical and manufacturing 
 purposes. The washings of the manured and cultivated fields, and the 
 natural drainage of the country, of necessity bring many impurities to 
 the stream, but these and like sources of pollution cannot, ordinarily, be 
 restrained by the court. 2 Therefore when we speak of the right of each 
 riparian proprietor to have the water of a natural stream flow through the 
 land in its natural purity, those descriptive terms must be understood in a 
 comparative sense; as no proprietor does receive, nor can he reasonably 
 expect to receive, the water in a state of entire purity. Any use that 
 materially fouls or adulterates the water, or the deposit or discharge therein 
 of any filthy or noxious substance that so far affects the water as to impair 
 its value for the ordinary purposes of life, will be deemed a violation of the 
 rights of the lower riparian proprietor, for which he will be entitled to 
 redress. Anything that renders the water less wholesome than when in its 
 ordinary natural state, or which renders it offensive to taste or smell, or that 
 is naturally calculated to excite disgust in those using the water for the 
 
 1 10 Amer. & Eng Ency. Law 844; 25 macher, 36 Wis. 50; Owens v. Lancaster 
 id. 968; Grey v. Paterson (N. J. Ch.), 42 (Pa.), 37 Atl. Rep. 858. 
 Atl. 'Rep. 749 [1899]; Greene v. Nunne- 3 Woodv. Sutliffe, 2 Sim. N. S. 163. 
 
 132 
 
133 FOULING AND POLLUTION OF SURFACE-WATERS. 203. 
 
 ordinary purposes of life, will constitute a nuisance, for the restraint of which 
 a court of equity will interpose." 1 
 
 "It is not every slight pollution of the waters of a stream, nor every 
 disagreeable odor, that is to be dealt with as a nuisance to be put down by 
 the authority of the law. The abatement of a nuisance does not necessarily 
 mean the entire and absolute removal of all pollution of a stream and all dis- 
 agreeable odor, but such diminution of pollution or smell as to render it such 
 as ought fairly and reasonably to be submitted to." 2 However, any pollution 
 of a natural stream which renders the water unfit for the usual and proper 
 purposes for which it may be used is a nuisance, and will be prevented by 
 the courts, and the party who pollutes or contaminates water may be liable 
 to others who are injured by his acts. 3 
 
 203. Sources of Pollution. Instances of pollution of waters are very 
 common in engineering operations, such as (i) by the discharge of sewers; 
 (2) by the operation of mills, factories, and works; and (3) by the flow of 
 impure waters from mines and tunnels. These will be taken up in the order 
 named. 
 
 204. Pollution by the Discharge of Sewers. An unreasonable discharge 
 of sewage into a stream or pond to the injury and inconvenience of riparian 
 owners will render the parties authorizing or committing the act liable in 
 damages therefor. 4 The owner of a private waterway, as a stream or a mill- 
 race 5 or a fish-pond, 6 may recover damages for injuries to his water rights, 
 as by the discharge of sewage or the drainage of filthy street-water into 
 them. 7 
 
 205. Natural Streams Must Receive Natural Drainage. A riparian 
 owner has a right to drain surface-waters from his land into a natural stream 
 in a reasonable manner. He is not limited to the discharge which existed 
 when the land was in its primitive state, if he does not surcharge the stream 
 beyond its natural capacity. One may change and control the natural flow 
 of surface-water on his lands, as by ditches and reservoirs, and increase the 
 flow of water which reaches a stream if he does so in the reasonable use of 
 
 1 Alvey, Justice, in Baltimore v. War- Woodyear v. Schafer, 57 Md. i; Petersen 
 
 renMfg. Co., 59 Md. 96; Norton z/. Schole- v. Santa Rosa (Cal.), 51 Pac. Rep. 557 
 
 field, 9 M. & W. 665. [1897]: City of Paris v. Allred (Tex.), 43 
 
 2 Lord Armitage, in Robinson v. Stew- S. W. Rep. 62 [1897]; Watson v. Toronto, 
 
 art, ii Macph. (Sc.) 189. etc., Water Co., 4 U. C. Q. B. 158. See 
 
 3 Chipman v. Palmer, 77 N. Y. 51, also State v. Frieberg (Ohio), 31 N. E. 
 
 sewer; Sanderson v. Penn. Coal Co., 86 Rep. 881. 
 
 Pa. St. 401; Woodyear v. Schaefer, 57 5 Columbus v. Hydraulic Woolen Mills 
 
 Md. i; Randolph z'.Dobson (Com. PI.), " Co., 33 Ind. 435. 
 
 Montg.Co. Law Reptr. 197. 6 Smith v. Cranford (Sup.), 32 N. Y. 
 
 4 Boston Rolling Mills v. Cambridge, Supp. 375; Seaman v. Lee, 10 Hun (N. 
 
 117 Mass. 396; Kellogg v. New Britain, 62 Y.) 607; Fitzgerald v. Firbank (C. A.), L. 
 
 Conn. 232; Nolans. New Britain (Conn.), R. 2 Ch. 96 [1897]. 
 
 38 Atl. Rep. 703 [1897]; Smith v. Cran- 7 Columbus v. Hydraulic Woolen MiUs 
 
 ford (Sup.), 32 N. Y. Supp. 375; Good v. Co., supra. 
 Altoona (Pa. Sup.), 29 Atl. Rep. 741; 
 
2O6. OPERATIONS PRELIMINARY TO CONSTRUCTION. 134 
 
 his lands. He may pump unusual quantities of water into a stream, as from 
 a quarry in which it has collected. 1 * 
 
 In some cases this principle of the law seems to have been extended to 
 the discharge of sewers into streams. It has been held that a properly con- 
 structed city sewer may be discharged into a stream which is the natural 
 drainage of the land on which the city is built, and the pollution of the stream 
 gives no right of action to a lower riparian owner whose mill property, 
 constructed and operated before the building of the city, is injured thereby. 2 
 
 In California it has been held that a 720#-riparian appropriator of the 
 water of a stream has no right of action for the pollution of the water of said 
 stream by a prior riparian owner who, in the interest of sanitary conditions, 
 discharges sewage into said stream. 3 
 
 In Texas a city can maintain an action to abate a nuisance caused by the 
 emptying of a private sewer into a creek running through the city, though it 
 has no interest in the land or the creek in question. 4 
 
 A canal company may maintain an action of tort against, a city for con- 
 structing sewers and drains over the company's lands and discharging them 
 into the canal, even though the city be authorized by its charter to build its 
 drains and sewers through private lands, and the canal was constructed in the 
 channel of an ancient, natural watercourse. 5 Some cases hold that it must 
 be proved to be a nuisance. 6 
 
 The use of a stream for the discharge of sewers is sometimes authorized 
 by the state legislatures or by city councils. 7 Such an act, however, does not 
 license a city to create a nuisance by discharging such quantities of sewage as 
 to pollute the river. 8 
 
 In an action by a city to abate a nuisance caused by the emptying of a 
 private sewer into a creek, it is no defense that the city authorities authorized 
 defendant to construct the sewer and empty it into such creek. 9 
 
 206. Degree of Pollution that will be Enjoined. When the pollution of 
 the stream was scarcely perceptible and the injury trifling, the court may 
 refuse an injunction to restrain the discharge of sewage into a river and 
 
 1 McCormick v. Horan, Si N. Y. 86; Llano v. County of Llano, 5 Tex. Civ. 
 Waffle v. N. Y. Cent. R. Co., 53 N. Y. n. App. 133, following City of Belton v. 
 And see Drains, and Sewers, 6 Amer. & Central Hotel Co. (Tex.), 33 S. W. Rep. 
 Eng. Ency. Law 2. 297. 
 
 2 City of Richmond v. Test (Ind.), 48 5 Locks & Canals v. Lowell (Mass.), 7 
 N. E. Rep. 610 [1897]. But see People v. Gray 223. See Nolan v. New Britain 
 McCune (Utah), 46 Pac. Rep. 658, and (Conn.), 38 Atl. Rep. 703 [1897]. 
 Jeanette Borough v. Eschallier, 28 Pittsb. 6 Robb v. Village of LaGrange (111. 
 Leg. J. (N. S.) 383 [1898], and Murphy v. Sup.), 42 N. E. Rep. 77, 57 111. App. 386. 
 Wilmington, 5 Del. Ch. 281. 7 Public Laws New Jersey, Act Feb. 
 
 3 Conrad v. Arrowhead Hotel Co. 26, 1868, p. 126. 
 
 (Cal.), 37 Pac. Rep. 386. See Cone v. 8 Grey v. Paterson (N. J. Ch.), 42 Atl. 
 
 Hartford, 28 Conn. 363. Rep. 749 [1899]. 
 
 4 City of Belton v. Baylor Female Col- 9 City of Belton v. Baylor Female Col- 
 lege (Tex.), 33 S. W. Rep. 680; City of lege (Tex.), 33 S. W. Rep. 680. 
 
 * See Sec. 184, supra. 
 
135 FOULING AND POLLUTION OF SURFACE-WATERS. 2O;. 
 
 dismiss the petition with costs. 1 When, however, an owner of land, on a 
 stream the water of which is naturally p^ure, is found entitled to an injunc- 
 tion against a city to prevent the pollution of the water by discharge of its 
 sewage, and before the findings are prepared the case is opened and the city 
 alleges, by an amended answer, that it has about completed a plant by which 
 the pollution of the waters will be prevented, and shows that the sewage is 
 thereby rendered pure and inodorous, but does not show that it is rendered 
 potable and fit for use, the water will be presumed to still remain unfit for 
 use, and an injunction may be granted to prevent the turning of the sewage 
 into the stream. 2 Likewise when, in an action against a mining company to 
 enjoin discoloration of a stream, it appeared that the discoloration was caused 
 by clay found in a fissure of a rock intersected by the shaft, and that after 
 continuing several months it began to abate, so that defendant was able, by 
 the use of a settling-basin, to deliver the water to the stream in a clear con- 
 dition, and that such was the condition of affairs at the final hearing, six 
 months after the bill was filed, and it also appeared that defendant denied 
 complainant's case throughout, and claimed the right to throw the discolored 
 water into the stream, and that there was some danger of discoloration in the 
 future, it was held that the decree establishing complainant's rights should 
 include a provision for a perpetual injunction against discoloration. 3 
 
 207. Reasonable Use of Waters of a Stream. The reasonableness in 
 such cases depends upon the circumstances of each particular case. In 
 regard to manufacturing purposes there must certainly be more or less refuse 
 matter which, by ordinary care, could be prevented from falling into the 
 stream, in which case the reasonableness of the use of the water must deter- 
 mine the right, and this must be governed by the extent of detriment received 
 by the riparian proprietors below. 4 Another circumstance which may figure 
 prominently in determining the reasonableness of the uses of a stream is the 
 purpose for which the waters of the stream are employed. A stream which 
 flows into a reservoir and supplies drinking-water for a village or city would 
 not permit uses which might be tolerated in a stream used for manufacturing 
 purposes. 5 On the other hand, a manufacturing plant which required soft 
 water, as in the manufacture of woolens, might justly complain about the 
 introduction of chemicals which made the water hard and thereby destroyed 
 the quality of the water which it had enjoyed previously. Water from a 
 limestone-quarry might not injure it for domestic or farming purposes, and 
 yet totally destroy its utility for certain manufacturing purposes. 
 
 ^tty.-Gen'l v. Gee (Eng.), 10 Eq. 131, 297; Townsend v. Bell (Sup.), 24 N. Y. 
 
 See Lingwood v. Stowmarket Co. (Eng.), Supp. 193; Owens v. Lancaster (Pa.), 37 
 
 i Eq. 77, 336. Atl. Rep, 858; People v McCune (Utah), 
 
 2 Peterson v. Santa Rosa(Cal.), 51 Pac. 46 Pac. Rep. 658. 
 
 Rep. 557 [1897]. 5 Commonwealth v. Russell (Pa. Sup.), 
 
 3 Beach v. Sterling I. & Z. Co. (N. J. 33 Atl. Rep. 709; Kelley v. New York 
 Ch.), 33 Atl. Rep. 286. (Sup.), 27 N. Y. Supp. 164. 
 
 4 Lockwood Co. v. Lawrence, 77 Me. 
 
208. OPERATIONS PRELIMINARY TO CONSTRUCTION. 136 
 
 The discharge, into a stream, of water made muddy by the ordinary opera- 
 tions of engineering work has been, held a sufficient pollution of the waters 
 of the stream for an injunction to issue to prevent it. 1 
 
 The discharge of water used in the manufacture of lead has been held a 
 nuisance to the lower manufacturer of paper. a The injury from the discharge 
 of sewers into a river by a town has been held too trifling to warrant the issue 
 of an injunction. 3 It must be presumed that this was a small sewer emptying 
 into a large river, otherwise it cannot be considered in line with many cases 
 decided. In a case where water, though pure and fit for primary use, had 
 never been used for domestic purposes, the court refused an injunction to 
 prevent the discharge of a sewer, no other injury or damage being alleged 
 except that it killed the trout and occasioned an unwholesome smell, which, 
 however, was not proved at the trial. 4 However, the pollution of a river by 
 the discharge of city sewage gathered from a large area, and caused to flow 
 into the stream by artificially constructed grades, cannot be justified as a 
 natural and reasonable use of the river. 5 Whether the use of a stream which 
 contaminates its waters is reasonable or not is a question of fact for the 
 jury. 6 
 
 Evidence of a usage to discharge waste products into streams is not 
 admissible to show a right to do so to the injury of other riparian owners.' 7 
 
 208. Instances of Eeasonable Use. A reasonable use of waters for the 
 discharge of refuse material will be illustrated best by a few instances. It has 
 been held to be a reasonable use to run sawdust and refuse from a sawmill 
 into a stream. 8 A sanitarium has been permitted to discharge waters into a 
 stream which had been used for purposes of bathing patients. 9 
 
 When a' stream in its natural state is more useful to all the owners for 
 stock purposes than for ordinary domestic uses, it has been held that an 
 upper owner might reasonably use it and could maintain a hog-yard. 10 The 
 reasonableness of such a use seems to depend somewhat upon the number of 
 pigs or cattle kept. It has frequently been held that keeping of large cattle- 
 stables or hog-pens in the vicinity of a running stream, of which it caused 
 the pollution, was a nuisance and would be restrained. 11 The use of a stream 
 
 1 Ckowes v. Staffordshire Potteries Mining Co. (Col. App.), 48 Pac. Rep. 
 
 (Eng.), L. R. 8 Ch. 126; Beach v. Ster- 828. 
 
 ling I. & Z. Co. (N. J. Ch.), 33 Atl. Rep. 8 Red River R. Mills v. Wright, 30 
 
 286. Minn. 249; Jacobs v. Allard, 42 Vt. 303. 
 
 2 Hodgkinson v. Ennon (Eng.), 4 B. & 9 Barnard v. Shirley (Ind.), 34 N. E. 
 
 S. 229. Rep. 600 [1893]. 
 
 3 Atty.-Gen'l v. Gee (Eng.), 10 Eq. 131. 10 Hazeltine v. Case, 36 Wis. 391. But 
 
 4 Lillywhite v. Trimmer, 16 L. T. N. S. see People v. Elk R. M. & L. Co. (Cal.), 
 
 318. 40 Pac. Rep. 486. But see, contra, Smith v. 
 
 5 Grey v. Paterson (N. J. Ch.), 42 Atl. McConathy, n Mo. 518, and Baltimore 
 Rep. 749. v. Warren Mfg. Co. 59 Md. 96. 
 
 6 Hayes v. Waldron, 44 N. H. 580; n Green v. Nunnemacher, 36 Wis. 50; 
 Gavigan v. Atl. Ref. Co. (Pa.), 40 Atl. Davis v. Lambertson (N. Y.), 56 Barb. 
 Rep. 834 [1898]. 480; People v. Elk River M. & L. Co. 
 
 7 Hayes v. Waldron, 44 N. H. 580; Suf- (Cal.), 40 Pac. Rep. 486. 
 folk Gold Mining Co. v. San Miguel 
 
137 FOULING AND POLLUTION OF SURFACE-WATERS. 2OQ. 
 
 for general farming purposes and for stock, and a fouling of the water by a 
 stable in which were kept and fed 3750 head of cattle, were prohibited by 
 injunction at the instance of a lower riparian owner. 1 In some states it is a 
 misdemeanor to keep stock housed over, or on the borders of, any stream 
 used for a water-supply. 2 
 
 The discharge, into a stream, of whey from a cheese-factory, 3 or the 
 refuse from a starch -factory, 4 has been held a proper cause for complaint. 
 Though a stream is Contaminated somewhat by natural and unavoidable 
 drainage of surface-water into it, yet it does not justify the discharge of an 
 underdrain through a cemetery. 5 A ferryman who has run a ferry across a 
 stream for forty years may recover damages for injuries due to discharging a 
 sewer just above his slip and which filled it with sand and dirt, preventing 
 him from entering it with his boat. 6 
 
 209. An Injunction or Damages may be Had for Pollution. If the 
 pollution of a stream be a continuing one, or amount to a nuisance, 7 the 
 party injured may proceed either at law or in equity, 8 especially when such 
 use will cause irreparable injury or endanger a landowner's rights by adverse 
 possession if allowed to continue. 9 
 
 Equity cannot restrain the maintenance of a slaughter-house on a stream 
 flowing through a city merely because it is made a misdemeanor by Rev. St. 
 1418, no injury to plaintiff's property or rights being shown. 10 He may 
 have an injunction to prevent the pollution of a stream by the discharge of 
 sewage of a city. 11 The injunction will not fail because it is not limited to a 
 specified part of the stream. 12 
 
 A water company which supplies water to a city and owns land on a non- 
 navigable river, from which a portion of its supply is derived, is a riparian 
 owner in the full sense of the word, and as such may perpetually enjoin a 
 deposit, in the stream, of substances which pollute the water. 13 
 
 1 Barton v. Union C. Co. (Neb.), 7 L. Y. 51. 
 
 R. A. 457 [1889]. And see Losey v. 9 28 Amer. & Eng. Ency. Law 970510 
 
 Buchanan, 51 N. Y. 477. id. 844. 
 
 2 People v. Borda (Cal.), 38 Pac. Rep. 10 Tiede V. Schneidt (Wis.), 74 N. W. 
 niO. Rep. 798 [1898]. 
 
 3 Snow v. Williams (N. Y.), 16 Hun n Peterson v. Santa Rosa (Cal.), 51 Pac. 
 468. Rep. 557 [1897]; People v. San Luis 
 
 4 Middlestadt v. Waupaca S. & P. Co. Obispo (Cal.), 48 Pac. Rep. 723; Nolan 
 
 (Wis.), 66 N. W. Rep. 713. v. New Britain (Conn.), 38 All. Rep. 703; 
 
 5 Barrett v. Mt. Greenwood Cem. Assn. Stater/. Frieberg (Ohio Sup.), 31 N. E. 
 
 (111. Sup.), 42 N. E. Rep. 891, reversing Rep. 881; Woodyear v. Schaefer, 57 Md. 
 
 57 111. App. 401. i; Lind v. San Luis Obispo (Cal.), 42 
 
 6 Sleight v. Kingston (N. Y.), II Hun Pac. Rep. 437. The value of affidavits 
 
 594. in dissolving an injunction is discussed in 
 
 7 Crane v. Windsor, 2 Utah 248. Tiede v. Schneidt (Wis.), 74 N. W. Rep. 
 
 8 Webb v. Portland Mfg. Co., 3 Sumn. 798 [1898]. 
 
 (U. S.), 189; Holsman v. Boiling Sp. Bl. 12 People v. San Luis Obispo (Cal.), 48 
 
 Co., 14 N. J. Eq. 335; Atty.-Gen'l v. Pac. Rep. 723. 
 
 Steward, 20 N. J. Eq. 415; Barton v. 13 Indianapolis W. Co. v. Amer. S. Co. 
 
 Union Cattle Co. (Neb.), 7 L. R. A. 457 (C. C.), 53 Fed. Rep. 970. 
 
 [j9]' See Chipman v. Palmer, 77 N. 
 
210, OPERATIONS PRELIMINARY TO CONSTRUCTION. 138 
 
 210. Purification of Sewage Required, Injunction suits frequently 
 necessitate the erection of sewage-disposal works for the purification of the 
 discharge before it is emptied into streams, and they do not always meet the 
 requirements of the law. A purification plant which renders the sewage 
 clear and inodorous has been held not to answer a complaint by a landowner 
 that his water was pure and fit for use. To avoid an injunction the sewage 
 must be purified so that the waters are potable and fit for use. 1 
 
 The discharge from the purification works, though sterilized, colorless, and 
 odorless, must not contain substances which, by reason of their combination 
 with other substances wrongfully deposited in the stream, make the waters 
 noxious and polluted. 2 
 
 211. Rights of Riparian Owners cannot be Taken Without Compensa- 
 tion. In some states power is given to cities and villages to appropriate the 
 water of a stream or pond, or to utilize streams for the discharge of sewers. 
 Such acts would be illegal unless they provide, either expressly or impliedly, 
 for compensation to riparian owners. 3 Under an act providing that public 
 sewers shall be established along the principal course of drainage to such 
 extent and under such regulations as may be provided by ordinance, a stream 
 may be used for sewer purposes by having a sewer empty into it. 4 
 
 In the absence of legal right acquired by legislative act, grant, or prescrip- 
 tion, a municipal corporation which causes or permits its sewage to pollute a 
 watercourse is guilty of nuisance, for which damages may be recovered by a 
 landowner who is entitled to its use. 5 It is no excuse that the public health 
 and convenience will be best subserved by discharging the sewage into the 
 stream. 6 
 
 Damages may be recovered from a city which constructs its sewers so that 
 they empty into a stream and render unfit for use all the waters on a farm, by 
 reason of part of the stream going underground through seams and fissures in 
 the limestone bed of the stream. 7 
 
 212. Right to Discharge Sewage Acquired by Prescription. Riparian 
 owners are entitled to every ordinary use of the water of their streams, includ- 
 ing the right to apply it in *a reasonable way to purposes of trade and manu- 
 facture. They may not use the water of a stream in an unreasonable manner, 
 and defile the same in such a way or to such an extent as to amount to the 
 invasion of the rights of other riparian owners. The latter are clearly entitled 
 to redress for such acts by a suit at law and, in case the nuisance be continued, 
 
 1 Semble Peterson v. Santa Rosa (Cal.), cases cited. 
 
 51 Pac. Rep. 55 [1897]. 6 Atty.-Gen'l v. Hackney Board (Eng.), 
 
 2 Morgan v. Danbury, 67 Conn. 484. L. R. 20 Eq. 626; Kellogg v. New Britain, 
 3 28 Amer. & Eng. Ency. Law 976, and 62 Conn. 232; semble Indianapolis W. 
 
 cases cited ; Brewster v. Rogers Co. 42, Co. v. Amer. Strawboard Co. (C. C.), 57 
 
 App. Div. 343 [1899], logging in streams. Fed. Rep. 1000. 
 
 4 Joplin Min. Co. v. Joplin (Mo. Sup.), 7 Good v. Altoona (Pa. Sup.), 29 Atl. 
 
 27 S. W. Rep. 406. Rep. 741. 
 
 6 28 Amer. & Eng. Ency. Law 974, and 
 
139 FOULING AND POLLUTION OF SURFACE-WATERS. 212. 
 
 to a summary relief by injunction. This is the law established by a great 
 number of American and English cases. The right of a riparian owner to a 
 natural stream of water flowing by or through his land continues except so 
 far as it may have been granted away or lost by adverse user. No adverse 
 user short of the period required by prescription will confer any exclusive 
 right to the use of running water. If the prior owner has enjoyed the use of 
 water in any particular way, as for manufacture or trade for the prescriptive 
 period (twenty years in some states) so as to have acquired a right thereto, he is 
 then entitled to remain undisturbed in such use, but only in the manner and 
 to the extent defined by the actual enjoyment of the use. If occupation, 
 taking, or using of water has existed for so long a time as may raise the pre- 
 sumption of a grant, other riparian owners must take a stream subject to such 
 diminution of quantity and corruption of the quality as he has enjoyed for 
 the full prescriptive period. 1 
 
 A city or person may acquire a right to the use of a stream, as for the dis- 
 charge of a sewer, by prescription; 2 but not after the waters of the stream have 
 been taken for a water-supply for a city. 3 The amount of sewage that can 
 be discharged will be limited to what it was when the prescriptive period 
 commenced. If, as is usual, the pollution has substantially increased with 
 the growth of the city, either gradually or suddenly, and within the prescrip- 
 tive period, then the right to pollute the stream will be curtailed by the 
 amount of the increase. 4 This increase in the discharge of sewage from a 
 city and consequent pollution of waters may be anticipated and considered 
 by the court in granting an injunction restraining such contamination, even 
 though the pollution at present does not amount to a nuisance. 5 To consti- 
 tute an adverse user sufficient to sustain a right by prescription to maintain a 
 nuisance, it must have been continued in substantially the same way and with 
 equally injurious results for the entire statutory period. 6 
 
 A prescriptive right to pollute a stream will be limited also to the same 
 kind and class of impurities which have been discharged into the stream for 
 the full statutory period. An allegation that defendant had by prescription 
 acquired a right of "causing to flow into the waters . . . factory- and house- 
 sewage, drainage, and storm- and surface-waters from the city's streets," is 
 not a sufficient answer to a complaint that "large quantities of acids, 
 impure matter, sewage, and other noxious and impure substances were caused 
 to flow into a stream so as to render the waters of the said brook filthy." 
 The defense was held not to include the whole use complained of, and that 
 
 ^easley v. Shaw, 6 East 208. Mills Co. v. Smith (Miss.), n So. Rep. 
 
 2 3 Kent's Com. 446; Kranz v. Balti- 26. 
 
 more, 64 Md. 491. 5 Goldsmid v. Tunbridge Commrs. 
 
 3 Martin v. Gleason, 139 Mass. 183. (Eng.), I Eq. 161, i Ch. 349. 
 
 4 Blackburne TJ. Somers, L. R. 5 Ir. i; 6 Matthews v. Stillwater Co. (Minn.), 
 Goldsmid v. Tunbridge Commrs., i Eq. 65 N. W. Rep. 947; Woodworth v. Gene- 
 161; Woodworth v. Genesee Paper Co. see Paper Co. (Sup.), 46 N. Y. Supp. 99. 
 (Sup.), 46 N. Y. Supp. 99; Mississippi 
 
213- OPERATIONS PRELIMINARY TO CONSTRUCTION. 140 
 
 plaintiff could recover for uses alleged in the complaint and not included in 
 the defense. 1 
 
 The pollution of a stream supplying water to a city is a public nuisance, 
 and therefore the right to empty a sewer into such stream cannot be acquired 
 by prescription. 2 The rule that a right to maintain a nuisance cannot be 
 acquired by prescription applies only to public, and not to private, nuisances. 3 
 
 Where a city uses a stream as an open sewer, it cannot acquire by pre- 
 scription a right to neglect its duty to keep open the channel and to remove 
 accumulations of refuse therein. 4 
 
 Where a city, under power of eminent domain, takes the waters of a pond 
 and streams and the land about the pond for the supply of pure water, it may 
 take also the prescriptive right of landowners to pollute the waters of the 
 streams flowing into the lake and through the lands taken. The city can even 
 take the prescriptive right to pollute the waters of one of the streams without 
 taking the land through which it flows. An instrument that recites that a city 
 took all the waters of a pond, "and other brooks and streams, whether 
 permanent or temporary, entering into the same, . . . and all the water rights 
 thereunto belonging or in any wise appertaining, for the sole use and benefit 
 of the city," takes the right to foul the waters of any of the streams existing 
 at the time of filing the instrument. 5 
 
 An instrument granting permission "for all future time" to a manufac- 
 turing company to flow obnoxious matter into a certain stream, which 
 describes the land through which the stream flows as in a certain county, 
 adjacent to the manufacturing company's works, and is supported by a 
 valuable consideration, is sufficient to create an easement. 6 
 
 213. Parties to Suit to Prevent Pollution, The facts that the riparian 
 owner purchased the land after the nuisance was established, and that his 
 motives were bad, or that his object in making the purchase was to prevent 
 the defendant from discharging its waste into "the stream, to his great injury, 
 are not material to the case. One has a perfect right to buy land, and takes 
 all the vendor's rights in a stream appurtenant to the land and is entitled to 
 enforce them. 7 Even when the defendant was the vendor and had a prescrip- 
 tive right to discharge impurities into the stream, it was held that the 
 purchaser could restrain the further contamination of the waters; that the 
 vendor must have reserved an express right to foul the stream, and not having 
 done so, it would be prohibited. 8 
 
 1 Nolan v. New Britain (Conn.), 38 5 Martin v. Gleason, 29 N. E. Rep. 664, 
 Atl. Rep. 703. 139 Mass. 183. 
 
 2 Kelley v. City of New York (Sup.), 27 6 Nunnellyz/. Southern Iron Co. (Tenn.), 
 N. Y. Supp. 164; Litchfield v. Whitenack, 29 S. W. Rep. 361. 
 
 78 111. App. 364. 7 Townsend v. Bell (Sup.), 17 N. Y. 
 
 3 Drew v. Hicks (Cal.), 35 Pac. Rep. Supp. 210. 
 
 563. 8 Crossley & Sons v. Lightowler, 3 Eq. 
 
 * Owens v. City of Lancaster (Pa. Sup.), 279, 2 Ch. 478. 
 37 Atl. Rep. 858. 
 
141 FOULING AND POLLUTION OF SURFACE-WATEJRS. 
 
 In a suit by riparian owners to enjoin the discharge of city sewage into a 
 river, the owners of the houses connected with the sewers are not necessary 
 parties. Owners of different parcels of land on the banks of a river may join 
 as plaintiffs to enjoin the discharge of sewage polluting the river. l 
 
 The defendant having denied all the allegations that he was polluting or 
 had polluted a stream, it is error to put the burden of proof upon him with- 
 out any inquiry as to whether the waters were polluted by him. 2 
 
 214. Pollution of Stream by Joint Wrongdoers. When several parties 
 or persons acting independently of one another discharge or deposit refuse 
 matter and debris into a stream, fouling the same, they all may be joined as. 
 defendants in an action to restrain the nuisance. 3 It is error to hold in such 
 case that any one person is liable for the combined results of all the deposits, 
 or fouling. If others on the stream have contributed to the pollution, the 
 defendant should not be held liable for the injury done by them. His part 
 of the wrong done must be determined by the best proof the nature of the 
 case affords. 4 It may be shown that other persons were making deposits in 
 the stream above plaintiff's property, defendant not being liable for the 
 separate wrong of another. 5 If the plaintiff himself contributes to the pollu- 
 tion and injuries of which he complains, he cannot recover from an upper 
 riparian owner for his part in the wrong. 6 
 
 In a suit by a riparian owner to enjoin the pollution of a stream, the fact 
 that part of the stream is in a measure polluted by others besides the defend- 
 ant, 7 or that the stream was always more or less polluted from other mines, 
 and from the washing of plowed fields, public roads, and railroad embank- 
 ments, 8 is no reason why a particular cause or source shall not be restrained. 9 
 
 215. Liability for Defective Sewers. A city must construct its sewers so 
 that they shall not become nuisances, 10 and is liable if they be so unskillfully 
 built that they become obstructed and cause water to set back and flow 
 plaintiff's lands or cellars. 11 
 
 The pollution of a stream may be the necessary result of the construction 
 of a sewer, and may have been anticipated; or it may arise from defects in 
 the design of the system or the faulty construction of the sewer itself. In 
 
 1 Grey v. City of Paterson (N. J. Ch.), 7 Townsend v. Bell (Sup.), 17 N. Y. 
 42 Atl. Rep. 749 Supp. 210; McKeon v. See, 51 N. Y. 300. 
 
 2 Tennessee C. I. & R. Co. v, Hamil- 8 Beach v. Sterling I. & Z. Co. (N. J. 
 ton (Ala.), 14 So. Rep. 167. See also Ch.), 33 Atl. Rep. 286; Hill v. Smith, 32 
 Tiede v. Schneidt (Wis.), 74 N. W.Rep.7Q8. Cal. 166. 
 
 3 Lockwood v. Lawrence, 77 Me. 297. 9 Blair v. Deakin (Eng.), 57 L. T. N. S. 
 4 Blaisdell v. Stephens, 14 Nev. 17; 522; Crossley v. Lightowler (Eng.), L. 
 
 Gould v. Stafford (Cal.), 18 Pac. Rep. R. 2 Ch. 478; St. Helens S. Co. v. Tip- 
 
 879; Little Schuylkill Nav. Co. v. Rich- ping, n H. L. Cas. 642. See Tiede v. 
 
 ards, 57 Pa. St. '142; Seely v. Alden, 61 Schneidt (Wis.), 74 N. W. Rep. 798. 
 
 Pa. St. 306; Chipman v. Palmer, 77N.Y. 10 Conrad v. Ithaca, 16 N. Y. 161. 
 
 51 [1879]. n Rome v. Portsmouth, 56 N. H. 291; 
 
 5 Tennessee Coal, Iron & R. Co. v. Jacksonville v. Lambert, 62 III. 519; New 
 Hamilton (Ala.), 1480. Rep. 167. Albany v. Lines (Ind. App.), 51 N. E. 
 
 6 Ferguson v. Firmenich Mfg. Co., 77 Rep. 346 [1898]. And see Cohen v. Belle- 
 Iowa 576. not (Va.), 32 S. E. Rep. 455 [1899]. 
 
2 1 6. OPERATIONS PRELIMINARY TO CONSTRUCTION. 1^2 
 
 either case the city or owner of the sewer is liable for the unlawful fouling of 
 the stream, and even when the discharge of a sewer into a stream is authorized 
 by act of legislature it or he may be held responsible if the pollution complained 
 of is caused by the faulty construction or unreasonable use of the sewer. 1 
 
 216. Pollution of Watercourses by Mills, Factories, and Works, The 
 pollution of streams by the operation of large industrial plants is one of the 
 most frequent causes of litigation. The large amount of capital invested, and 
 the great benefit which such manufacturing establishments are to a com- 
 munity, make such acts seem tolerable when they would not otherwise be so. 
 To have a mill, employing thousands of men and women, shut down and a 
 great industry closed because some small farmer or fisherman, owning perhaps 
 a few acres of wild land, has suffered an imaginary loss in drinking-water for 
 his small herd of cattle, or in his enjoyment of fishing a few times a year, 
 seems the rankest injustice. Yet these cases are made the subject of suits for 
 blood-money by short-sighted landowners and lawyers wanting practice. Still, 
 however much money may have been invested, or however much the com- 
 munity may suffer as against the right of a riparian proprietor to have water 
 flow in its natural purity, there is no public policy in favor of industrial 
 development which will justify the erection and operation of a factory that 
 pollutes the water of a stream, unless the most modern appliances are used 
 to prevent it.' 4 It is no defense to a bill by a riparian proprietor to restrain 
 the pollution of a stream by discoloration, that the discoloration was the 
 natural and necessary result of mining operations prosecuted in the ordinary 
 way. 3 It is a principle of the common law that the erection of anything in 
 the upper part of a stream of water which poisons, corrupts, or renders it 
 offensive and unwholesome is actionable; and this principle not only stands 
 with reason, but is supported by unquestionable authority, ancient and 
 modern. 
 
 Mills and factories using drugs and chemicals, as dyestuffs, are a very 
 common and dangerous source of contamination, 4 which may be restrained 
 by injunction. 5 
 
 With respect to the discharge of chemicals into a stream, it has been held 
 that the one who is the proximate or immediate cause of the pollution of the 
 waters may be enjoined where the obnoxious effect is caused by the combina- 
 tion of the stuff discharged, which is harmless and inoffensive alone, with other 
 
 *28 Amer. & Eng. Ency. Law 976, and 4 Holsman v. Boiling Springs B. Co., 
 
 Massachusetts cases cited ; Grey v. Pater- 14 N. J. Eq. 335; Crossley v. Lightowler 
 
 son (N. J. Ch.), 42 Atl. Rep. 749 [1899]. (Eng.), L. R. 2 Ch. 478. Set also (Eng.) 
 
 See Litchfield v. Southworth, 67 111. App. 9 Rep. 59; (Eng.) Co. Litt. 200 b. 
 
 398 [1896]. 5 Richmond Mfg. Co. v. Atl. De Laine 
 
 2 Indianapolis Water Co. v, American Co., loR. I. 106; Townsend v Bell (Sup.), 
 Strawboard Co. (C. C.), 57 Fed. Rep. 17 N. Y. Supp. 210; Mississippi Mills Co. 
 1000; Mississippi Mills Co. v. Smith v. Smith (Miss.), n So. Rep. 26; Howell v. 
 (Miss.) n So. Rep. 26. McCoy (Pa.), 3 Rawle 268; Cushman v. 
 
 3 Beach v. Sterling Iron & Zinc Co. Highland Ditch Co. (Colo. App.), 33 Pac. 
 (N. J. Ch.), 33 Atl. Rep. 286. Rep. 344. 
 
143 FO ULING A ND POLLU TION OF S URFA CE- WA 7'ERS. 2 1 8 . 
 
 substances wrongfully deposited in the stream by other persons. 1 Poisonous 
 and corrosive substances which injure the machinery of a lower riparian owner 
 may not be discharged into a stream ; z nor those that render it unfit for 
 special processes of manufacture, such as carpet-weaving and dyeing 3 or 
 paper-making. 4 
 
 An upper landowner, who, by drilling a well and pumping, has increased 
 the aggregate quantity of water discharged, and changed its character from 
 fresh to salt, whereby it became more injurious to the lower land, is liable to 
 the owner of the latter for such injuries, though such water is discharged 
 in the lawful use of his land, unless he could not prevent the injury by 
 reasonable care and expenditure. 5 But one who sinks an artesian well on his 
 own land and uses the water to bathe the patients in a sanitarium erected by 
 him on said premises was held not liable to injunction and damages for 
 allowing the water, after such use, to flow into a stream which crosses the 
 land of an adjoining owner and is the only natural and available outlet. 6 
 
 217. Pollution from Mining Operations. Mining operations usually 
 furnish large quantities of refuse material in the form of screenings, tailings, 
 and discoloration. Such refuse cannot be discharged into running streams, 
 destroying their usefulness to other riparian owners, 7 as in filling up the channel 
 and causing the debris to be deposited on land. 8 If such refuse be carried upon 
 others' lands by the natural flow of the stream, though in times of high water 
 during rainy seasons, the mine-owner will be held liable for the injury. 9 It 
 is no excuse that the refuse was deposited in the stream to make room for a 
 retaining-wall to prevent a large bulk of the refuse from being washed down 
 on the land of the owners below. 10 
 
 218. Instances in Befouling a Stream. Water made muddy by the 
 construction of a water-works reservoir and dam, to the injury of the owner 
 of dye-works, may be a nuisance. 11 Deposits of materials (coal-slack) which 
 constituted a railroad embankment have been held to be nuisances. la Sand 
 and silt contained in surface-water discharged into streams have been held 
 not deleterious matter within the English Public Health Act 1875, 17, pro- 
 
 1 M-organ v. Danbury, 67 Conn. 484. Fed. Rep. 384. 
 
 2 Pennington v. Brinsop H. C. Co., 5 9 Robinson v. Black D. C. Co., 57 Cal. 
 Ch. Div. 769; Lingwood v. Stowmarket 412; Tennessee Coal I. & R. Co. v. Ham- 
 Co. (Eng.), L. R. i Eq. 77. ilton (Ala.), 14 So. Rep. 167; Hindson v. 
 
 3 Carhart v. Auburn Gas. Lt. Co. (N. Markle (Pa. Sup.), 33 Atl. Rep. 74; Hill 
 Y ), 22 Barb. 297; Richmond Mfg. Co. v. v. Smith, 32 Cal. 166. 
 
 Atl. De Laine Co., 10 R. I. 106. 10 Elder v. Lykens Val. Coal Co. (Pa. 
 
 4 Hodgkinson v. Ennon, 4 B. & S. 229. Sup.), 27 Atl. Rep. 545. 
 
 5 Pfeiffer v. Brown (Pa. Sup.), 30 Atl. " Clowes v. Sterling I. &-Z. Co. (N. J. 
 Rep. 844. Ch.), 33 Atl. Rep. 286; semble Beach v. 
 
 6 Barnard v Shirley (Ind.), 47 N. E. Sterling I. & Z. Co. (N. J. Ch.), 33 Atl. 
 Rep. 671 [1897]; S.C., 34 N. E. Rep. 600 Rep. 286, discolorations from clay. See 
 [1893]. Rarick v. Smith (Com. PL), 17 Pa. Co. 
 
 7 28 Amer. & Eng. Ency. Law 977. Ct. Rep. 627. 
 
 8 Tennessee Coal, Iron & R. Co. v. " Wabash R. Co. v. Sanders, 58 111. 
 Hamilton (Ala.), 14 So. Rep. 167 [1893]; App. 213. 
 
 Montana Co. v. Gehring (C. C. A.), 75 
 
2 1 9- OPERATIONS PRELIMINARY TO CONSTRUCTION. 144 
 
 hibiting the discharge of surface-waters containing foul or noxious matter 
 which will deteriorate the quality and purity of the waters of a stream, where 
 the stream is already charged therewith. 1 Light flocculent matter discharged 
 into navigable waters, and carried in suspension into the ocean, may be a 
 nuisance where Congress has prohibited the putting such matter into such 
 waters. 8 
 
 219. Injunction Granted when No Damages are Suffered. It is fre- 
 quently held that a riparian owner need not have suffered actual damages in 
 order to be entitled to an injunction to prevent the befouling and discoloring 
 of a stream, where such use of a stream, if not stopped, may grow into a 
 right by prescription. 3 Moreover, the rights of a riparian owner are not 
 limited to the present modes of use and enjoyment. It is impossible to 
 foresee what use the owner or his successors in title may resort to, or the 
 extent of damages which would compensate him or them for the injuries which 
 the continued pollution might cause to such new modes of enjoyment. 4 
 
 In determining the right to an injunction to prevent further pollution, 
 the court will consider the consequences of an injunction and the real equities 
 of the case. If the injury is only occasional and the damage is small and 
 accidental rather than a probable and necessary consequence, an injunction 
 will be denied. 5 
 
 A city will not be enjoined from continuing to discharge sewage into a 
 river until it has had a reasonable time to provide other means to dispose 
 thereof. 6 Pending a hearing, an injunction may be granted restraining the 
 city from increasing the discharge, where the potableness of the water is 
 destroyed and noxious smells arise from the polluted water which produce 
 general discomfort to the inhabitants along the river. 6 
 
 220. Person Injured Not Kequired to Prevent Pollution. The lower 
 riparian owner is not without remedy because he has failed to take due pre- 
 cautions to prevent the injury resulting* from the discharge of impurities into 
 the stream, or that he has been guilty of negligence contributing to the 
 injury, where there is no duty imposed upon him to prevent it. 7 Such a plea 
 is no defense to an action. 9 
 
 A city is not bound to maintain structures to preserve the purity of its 
 water-supply. And it is no defense to a bill for an injunction to prevent a 
 person from polluting such a source of water-supply that the city has already 
 built a dam which prevents such pollution. 8 
 
 1 Durant v. Branksome, etc. (C. A.), Eng.), 5 Ch. Div. 769. 
 
 L. R. 2 Ch. 291 [1897]. 5 Peterson v. Santa Rosa, 51 Pac. Rep. 
 
 2 United States v. N. B. Gravel-Min. 557. 
 
 Co. (C. C. Cal'.), 8 1 Fed. Rep. 243. 6 Grey v. City of Paterson (N. J. Ch.) r 
 
 8 Townsend v. Bell (Sup.), 17 N. Y. 42 Atl. Rep. 749 [1899]. 
 
 Supp. 210; Ware v. Allan, 140 Mass. 513. 7 Tennessee Coal, I. & R. Co. v. Ham- 
 
 And see Gould v. Eaton (Cal.), 49 Pac. ilton (Alal), 14 So. Rep. 167. 
 
 Rep. 577. 8 Martin v. Gleason, 139 Mass. 183. 
 * Pennington v. Brinsop Hall Co. 
 
145 FOULING AND POLLUTION OF SURFACE-WATERS. 222. 
 
 If the expense of preventing the damage is small in proportion to the 
 gain to the upper landowner, and the person damaged has taken steps to abate 
 the nuisance, the upper landowner should pay the expense, if it is reasonable 
 in regard to the lower owner's rights, however large it may be m actual 
 amount, or he should respond in damages. 1 An appropriator of water who is 
 being injured by the unlawful acts of another user cannot be compelled to 
 protect himself from such injury at his own cost, on the ground that he can 
 do so at less expense than must be incurred by the wrongdoer for its preven- 
 tion. 2 
 
 A riparian owner has no right to have the sewage of a city turned into the 
 stream above his mill, instead of being diverted elsewhere, although from one 
 third to one half of the stream has been taken by the city without right and 
 has entered the sewerage system ; but the disposal of the sewage is under the 
 control of the city, and the remedy of the riparian owner for wrongfully taking 
 the water is by action for damages or by injunction. 3 
 
 221, Pollution by Refuse from Gas-works. The discharge of tar and oily 
 substances from gas-works to the detriment of other manufactures on the 
 stream, such as carpet-works, 4 will be enjoined and damages assessed. A 
 city has been held liable for damages to a well from the erection of a gas- 
 reservoir. 5 
 
 In an action for damages suffered from pollution of a stream, as by 
 refuse from a gas-works, it is no excuse that the soil is pervious and the waters 
 of the stream percolate it without the agency or fault of the defendant. 6 
 
 222. Pollution of Streams with Refuse from Sawmills and Tanneries. 
 Sawmills and tanneries afford refuse materials which, though not harmful in 
 small quantities, become deleterious when the amount is large. The manifold 
 ways in which wood products are now utilized, and the rigid economy which 
 is practiced to turn every waste material to some profit, does away with much 
 of the fouling of streams by wood waste. The emptying of offensive matter 
 from tan-yards, 7 or the discharge of spent bark from a tannery into a stream 
 so that it lodges on the premises of riparian owners, 8 or of sawdust, slabs, 
 and edgings from a saw-mill, 9 which render the water impure and unfit for 
 
 1 Pfeiffer v. Brown (Pa Sup.), 30 Atl. 7 Honsee v. Hammond (N. Y.), 39 Barb. 
 Rep. 844. 89; Thomas v. Brackney (N. Y.), 17 Barb. 
 
 2 Suffolk Gold Mining Co. v. San 654; Howell v. M'Coy (Pa.), 3 Rawle 256; 
 Miguel Mining Co. (Colo. App.), 48 Pac. Moore v. Webb (Eng.), i C. B. N. S. 673; 
 Rep. 828. Aldred's Case (Eng.), 9 Co. Rep. 58, 59, a 
 
 3 Fisk v. Hartford, 69 Conn. 375; 37 lime-vat. 
 
 Atl. Rep. 983; Schriver v. Johnston (N. 8 Winchester v. Osborne, 61 N. Y. 555, 
 
 Y.), 71 Hun. 232. reversing 62 Barb. 337; Seeley v. Alden, 
 
 * Carhart v. Auburn Gas Lt. Co. (N. 61 Pa. St. 302; Crosby v. Bessey, 49 Me. 
 
 Y.), 22 Barb. 297; Commonwealth v. Rus- 539. And see Washburn v. Oilman, 64 
 
 sell (Pa.), 33 Atl. Rep. 709. Me. 163. 
 
 5 Shutter, v. The City, 3 Phila. 228 9 Lockwood Co. v. Lawrence, 77 Me. 
 [1858]. 297 [1885]; Snow v. Parsons, 28 Vt. 459; 
 
 6 Carhart v. Auburn Gas Lt. Co. (N. Waterman v. Buck, 58 Vt. 519; Hayes 
 Y.), 22 Barb. 297. See Shutter v. The v. Waldron, 44 N. H. 580; Green v. Gil- 
 City, 3 Phila. 228 [1858]. bert, 60 N. H. 144; State v. Griffin (N. 
 
223- OPERATIONS PRELIMINARY TO CONSTRUCTION. 146 
 
 domestic purposes, 1 or dam, obstruct, and set back the waters to the injury of 
 a lower owner, 2 is an act which will be enjoined and for which damages may 
 be recovered. 3 
 
 223. Measure of Damages for Pollution of Waters. Ordinarily a riparian 
 owner may recover from the person or party who pollutes a stream such 
 damages as he has actually suffered and can show. Such damages may 
 include injuries due to bodily sickness and discomfort. 4 He may recover for 
 all the expense incurred by reason of sickness, in addition to loss of rent of 
 the premises. 5 
 
 The value of a spring which was destroyed may be shown. 6 Where a 
 water privilege has been destroyed, the measure of damages has been held to 
 be the difference in value of the land immediately before and after the 
 destruction. 7 When the fouling of water makes it unfit for use and thereby 
 obstructs the full enjoyment of the owner, and it is agreed to compute the 
 damages, an injunction may be held necessary to prevent a multiplicity of 
 costs. 8 
 
 Usually the question of carnages is left to the jury; and the instruction by 
 the court that the cost of cleaning out sediment deposited by water from a 
 mill in the tiles and lateral ditches could not be considered by the jury in 
 assessing damages if such sediment was of. such nature that it would have 
 been washed out of the tiles or ditches by water flowing in them, invades the 
 province of the jury by assuming to control them upon a question of fact. 9 
 
 The jury may consider the use of the property and the plaintiff's health 
 and comfort, and use their best judgment in deciding what amount 
 plaintiff is entitled to, if anything. 10 
 
 In estimating the damages it is not necessary that any witness express an 
 opinion as to the amount of such damages. The jury may themselves make 
 such estimate from the facts and circumstances in proof, and by considering 
 them in connection with their own knowledge, observation, and experience 
 in the business affairs of life. n If land has been injured by reason of deposits 
 upon it, evidence may be given as to the diminished value of the land, and 
 also of the cost of removing the deposits. 12 
 
 H.), 39 Atl. Rep. 260 [1897]; People v. Litchfield v. Whitenack, 78 111. App. 364 
 
 Rogers, 12 Colo. 278; Potters. Froment, [1897]. 
 
 47 Cal. 165; State v. Kronert (Wash.), 43 5 Loughran v. Des Moines, 72 la. 384. 
 
 Pac. Rep. 876. But see Jacobs v. Allard, But see Esson v. Wattier (Oreg.), 34 Pac. 
 
 42 Vt. 303, which held that a mill-owner Rep. 756. 
 
 might discharge sawdust into a stream 6 Mississippi Mills Co. v. Smith (Miss.), 
 
 in a reasonable manner. n So. Rep. 26. 
 
 1 Potter v. Froment, 47 Cal. 165. 7 Galveston, H. & S. A. Ry. Co. v. Haas 
 
 2 Winchester z/. Osborne, 61 N.Y. 555. (Tex.), 37 S. W. Rep. 167. 
 
 3 O'Reiley v. McChesney (N. Y.), 3 8 Peterson v. Santa Rosa, 51 Pac. Rep. 
 Lans. 278; Indianapolis W. Co. v. Amer. 557. 
 
 St. Co., 53 Fed. Rep. 970. 9 Prairie State P. Co. v. Sharp, 67 111. 
 
 4 Ferguson v. Firmenich Mfg. Co., 77 App. 477. 
 
 la. 576; Randolph v. Bloomfield, 77 la. 10 Gavigan v. Atlantic Refining Co. 
 
 50; Shiveley v. Cedar Rapids, etc., R. (Pa.), 40 Atl. Rep. 834 [1898]. 
 
 Co., 74 la. 170; Gladfelter v. Walker, 40 u Litchfield v. Whitenack, 78 111. App. 364. 
 
 Md. i; Eufaula v. Simmons, 86 Ala. 515; 12 Seely v. Alden, 61 Pa. St. 302. 
 
CHAPTER XIII. 
 
 NAVIGABLE WATERS. PUBLIC AND PRIVATE RIGHTS IN 
 NAVIGABLE WATERS. 
 
 231. Navigable Waters. At common law navigable waters were those 
 waters in which the tide ebbs and flows. This is the sense in which the 
 term is still used in England and in the earlier decisions in this country. 
 In America, in the most approved modern sense of the term, navigable waters 
 include those which afford a channel for useful commerce, and such waters 
 are public highways of common right. 1 The common-law definition was a 
 reasonable one in England, where there are no rivers of considerable impor- 
 tance in which the tide does not ebb and flow, but in this country it would be 
 highly unreasonable to apply such a rule to the great rivers, such as the 
 Mississippi, Missouri, Ohio, Allegheny, Delaware, Schuylkill, Susquehanna, 
 etc., and their branches. It has been held that it is the navigability in fact 
 which forms the foundation for navigability in law, and from that fact follows 
 the appropriation to public use, and hence its public character and legal 
 navigability. It would be impossible to attempt to apply a common-law rule 
 to the rivers of this country stretching about three thousand miles in extent, 
 flowing through or between numerous independent states, and bearing com- 
 merce which competes with that of the ocean. A test which was applicable 
 to an island not so large as some of our states, and to streams whose utmost 
 length was less than three hundred miles and whose oultet and source at the 
 same time could be within the same states' jurisdiction, could not be applied 
 to i continent like our America. 2 
 
 The Roman law which has pervaded continental Europe, and which took 
 its rise in a country where there was a tideless sea, recognized all rivers as. 
 navigable which were really so; and this common-sense view has been adopted 
 in this country. A stream is regarded as navigable which is capable of float- 
 ing to market the products of the country through which it passes and upon 
 which commerce may be conducted, and from the fact of its being navigable 
 it becomes in law a public river or highway. 3 The public easement is not 
 
 1 16 Amer. & Eng. Ency. Law 236, v. Carmichael, 3 Iowa i [1856]. 
 many cases. 3 Hichok v. Hine, 23 Ohio St. 523. Sec 
 
 2 See comment by Woodward in McManus also 28 Alb. Law Jour. 4. 
 
 147 
 
232. OPERATIONS PRELIMINARY TO CONSTRUCTION. 148 
 
 founded upon usage, custom, or prescription. Any stream capable of being 
 generally and commonly useful for some purposes of trade and of transporta- 
 tion of property, whether by steamers or sailing-vessels or rowboats or rafts, 
 is a public stream. 1 
 
 The question as to the nature and extent of the rights of riparian owners 
 upon navigable waters, including the right to the continued flowage of the 
 stream, is one to be decided by the courts of the state as a matter of local 
 law, subject to the right of Congress to regulate public navigation and com- 
 merce. 2 However, a provision declaring the Mississippi River a common 
 highway for the inhabitants of the state and all other citizens of the United 
 States does' not impair the title and jurisdiction of the state over the naviga- 
 ble waters within her boundaries, any more than rights of that nature are 
 limited with regard to the thirteen original states. a 
 
 The sovereignty of the state of Wisconsin extends to the middle of Lake 
 Michigan, and its laws, so far as not in conflict with the laws of the United 
 States which are passed in regulation of commerce and navigation, are opera- 
 tive within the boundaries of that state. 3 
 
 232. Uses of Navigable Streams. In order that waters may be navigable 
 in the legal sense, the commerce which is carried over them must be of an 
 essentially valuable character. This language, however, is applied to the 
 capacity of the stream, and is not intended to be a strict enumeration of the 
 uses to which it may be actually applied in order to give it the character of 
 a navigable stream or highway. A traveler for pleasure is as fully entitled 
 to protection in using a public highway, whether by land or by water, as is a 
 traveler for business. 4 However, it has been held that the fact that a river 
 was used for pleasure-boating and fishing after a dam had been erected across 
 it was no proof whatever that it was navigable. 5 
 
 A cove or stream cannot be said to be navigable because at times of 
 freshet a boat or skiff or Indian canoe may be pushed through its waters, or 
 in the winter months occasionally a small boat is hauled up to escape the ice. 
 Those waters are navigable where the public pass and repass upon them with 
 vessels or boats in the prosecution of a useful occupation. There should be 
 some commerce or navigation which is essentially valuable. A hunter or 
 fisherman by drawing his boats through the waters of a brook or shallow creek 
 does not create navigation or constitute them rivers of commerce. 6 It has 
 been held that the property which is the subject of such commerce must be 
 conducted by the agency of man. 7 
 
 1 Carter v. Thurston, 58 N. H. 104. Woods, 108 Mass. 439. 
 
 2 St. Anthony Falls W.-p. Co. v. Board 5 Burrows v. Whitwan, 59 Mich. 279; 
 of Water Comrs., 18 Sup. Ct. Rep. 157; Wethersfield v. Humphrey, 20 Conn. 217. 
 158 U. S. 349 [1897]. 6 Wethersfield v. Humphrey, supra. 
 
 3 Bigelow v. Nickerson (C. C. A.), 70 7 Munson v. Hungerford, 6 Barb. N.Y. 
 Fed. Rep. 113. 265. But see Morgan v. King, 18 Barb. N. 
 
 * Chapman, Ch. _/., in Atty. Genl. v. Y. 227. 
 
149 NAVIGABLE WATERS. PUBLIC AND PRIVATE RIGHTS. 234. 
 
 For a stream to be navigable it is not necessary that commerce should be 
 conducted by means of boats and vessels. If the waters are capable of float- 
 ing rafts and logs, they are public highways for that purpose. Waters need 
 not be fit for navigation at all times, but their navigability should recur with 
 regularity and at known periods. 1 The seasons of navigation must occur 
 regularly and be of sufficient duration and character to subserve a useful public 
 purpose for commercial intercourse. 2 
 
 233. Navigability does Not Depend upon Improvements, The naviga- 
 bility of a stream should not depend upon its susceptibility to improvement by 
 high engineering skill and an expenditure of large sums of money. It should 
 be navigable in its present natural condition. 3 A stream of water which is 
 not susceptible of use as a highway in its natural state is absolutely private, 
 and that made capable of floating commercial products by the owner by 
 artificial means is not a subject of public use. 4 The weight of authority 
 limits the term navigability to waters having a natural and inherent capacity 
 for navigation. A stream which can only be made floatable by artificial 
 means is in no sense a public highway. 5 Streams which are not fit for floating 
 logs do not become public thoroughfares when improved by riparian owners. 6 
 
 If, however, the waters of a stream have been diverted from their natural 
 course into a new channel, the public may use it for floatage, presumably to 
 the same extent that it was useful before the diversion. 7 The same is true of 
 a new channel created by a break in the dam. 8 In South Carolina the court 
 refused to charge that an individual has such an exclusive right to a non- 
 navigable river that the legislature may not declare it to be a public highway, 
 and that when the obstructions are removed it becomes fit for public use. 9 
 
 234. Rule in Several States. North Carolina courts have made the test 
 of navigability the capacity to afford passage for sea-going vessels. This rule 
 has been modified of late, and the tendency seems to be towards the general 
 rule. 10 A Michigan court has made the test of navigability the actual use and 
 not the capacity for use. The existence of a current is not the test of a 
 navigable river. It may be navigable without a current. ll In Tennessee a 
 stream is held not navigable which is not of sufficient depth naturally to float 
 rafts, boats, and small vessels. 12 
 
 1 16 Amer. & Eng. Ency. Law 243. Belts (Eng.), 44 Cox (C. C.) 211. 
 
 2 United States v. Rio Grande D, & I. 8 Whisler v. Wilkinson, 22 Wis. 572 
 Co. (N. M.), 5i Pac. Rep. 674 [1898]. [1868]. 
 
 3 Wadsworth v. Smith, n Me. 278. 9 Gates v. Wadlington (S. C.), I McCord 
 
 4 United States v. Rio Grande D. & I. 583- 
 
 Co.. supra. 10 16 Amer. & Eng. Ency. Law 244. But 
 
 5 Moore v. Sanborne, 2 Mich. 519. see State v. Eason (N. C.), 19 S. E. Rep. 
 
 6 Wadsworth v. Smith, n Me. 278; 88. 
 
 Holden v. Robinson Mfg. Co., 65 Me. !1 Turner v. Holland, 54 Mich. 300; 
 
 215; Nutter v. Gallagher (Ore.), 24 Pac. 65 Mich. 453; Burrows v. Whitwan, 59 
 
 Rep. 250 [1890]. And see Haines v. Hall, Mich. 279. 
 
 17 Ore. 165. 12 Irwin v. Brown (Tenn.),i2 S. W. Rep. 
 
 7 Dwinel v. Barnard, 28 Me. 544; Dwi- 340 [1889]. 
 nel v. Veazie, 44 Me. 167; Regina v. 
 
235- OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 A stream maybe navigable which does not afford a continuous passage 
 for water-craft or logs throughout its entire extent. l The Niagara River is a 
 navigable river notwithstanding the obstruction of the falls. 2 
 
 Whether or not a body of water is navigable is a question of fact for the 
 jury. 3 When determined it becomes a matter of law. 4 The burden of proof 
 is on the party alleging the stream to be navigable, but .all tide-waters are 
 presumed to be navigable. 5 Courts frequently take judicial notice of the fact 
 that a river is navigable or unnavigable. 6 
 
 Where marsh-land bordering on navigable waters is subject only to 
 temporary inundation in times of heavy gales, but at other times the water 
 standing or flowing over or through it is the mere drainage from higher lands 
 adjoining, it does not constitute a part of the navigable waters. 7 
 
 The right to navigate waters is generally held to be an inherent public 
 right needing no legislative sanction which may be the subject of an express- 
 grant by the legislature. If the capacity of the stream is sufficient for actual 
 use as a public highway, the public is entitled to enjoy such use. 8 If a, 
 stream has been used without objection for twenty years as a public thorough- 
 fare, it becomes a navigable stream. 9 
 
 235. Non- tidal Rivers. A river has been held to be a natural body of 
 water with a uniform current ; a running stream of water confined on each 
 side by walls and banks. The name is applied to waters which flow and 
 reflow, as well as to those which have the currents one way. 10 The principal 
 difference between a river and a lake or swamp is the presence of a current in 
 the former, but a lake does not lose its distinctive character because there is 
 a current in it for a certain distance leading toward the outlet. 11 
 
 A river consists of a bed, water, and the banks or shores shores if a tidal 
 stream. 12 The bed is the soil occupied by the stream so as to destroy vegeta- 
 tion. The banks are those elevations which contain the river in its natural 
 channel when there is the greatest flow of water. 13 The bank is that distinguished 
 margin where vegetation ceases, and the shore is the pebbly, sandy, or rocky 
 space between that line and the low-water line. 14 The bank of a river is that 
 
 1 16 Amer. & Eng. Ency. Law* 244. 8 Healy v. Joliet R. Co., 2 111. App. 
 
 2 Re State Reservation Comm., 37 Hun 435; Martin v. Bliss, 5 Blackf. (Ind.) 35. 
 
 (N. Y.) 537; St. Anthony Falls W. P. Co. 9 Stump v. McNairy (Tenn.), 5 Humph. 
 
 v. Board, 158 U. S. 349; '18 Sup. Ct. Rep. 363. 
 
 157. 10 16 Amer. & Eng. Ency. Law 249, 
 
 3 Jones z/. Johnson (Tex.), 25 S. W. And see Woolrych on Waters, 40, and 
 
 Rep. 650; 16 Amer. Eng. Ency. Law 245. Callis on Sewers, 77. 
 
 * Morgan v. King, 18 Barb. (N. Y.) 277; n State v. Gillman, 14 N. H. 476; Trus- 
 
 Rhodes v. Otis, 33 Ala. 578; Walker v. tees and School v. Schroll, 120 111. 59. 
 
 Allen, 72 Ala. 456. 12 Child v. Starr, 4 Hill. (N. Y.) 369; 
 
 5 16 Amer. & Eng. Ency. Law 245. Haight v. Keokuk, 4 la. 199. 
 
 6 Clark v. Cambridge, etc., Co. (Neb.), 13 Howard v. Ingersol, 13 How. (U. S.) 
 64 N. W. Rep. 239; 16 Amer. & Eng. 426. 
 
 Ency. Law 245. 14 McCullough v. Wainwright, 14 Pa. St. 
 
 7 Niles v. Cedar Point Club (C. C. A.) 171. 
 85 Fed. Rep. 45 
 
151 NAVIGABLE WATERS. PUBLIC AND PRIVATE RIGHTS. 237. 
 
 rising ground above the low-water mark which is usually covered by ordinary 
 high water. The exact limits of the bank are indefinite and indeterminate. 
 To limit the boundaries of land by the bank or shore of the stream is to 
 define it in a very undefined and extraordinary manner. It affixes no precise 
 point of locality, for the bank of the river extends, or may extend, over a con- 
 siderable space. 1 The bank and the water are correlative; a person cannot 
 own the one without touching the other. 2 
 
 Neither the line of ordinary high-water mark nor that of-ordinary low-water 
 mark can be assumed as the line dividing the bed from the banks. This line 
 is to be found by examining the bed and banks and ascertaining where the 
 presence and action of water are so common and usual and so long-continued 
 as to mark upon the soil of the bed a character distinct from that of the bank 
 in respect to vegetation as well as in respect to the nature of the soil itself. 
 Whether this line between the bed and the banks will be found above or 
 below or at the middle stage of water must depend upon the character of the 
 stream. 3 * 
 
 236, Rights of Public in Navigable Waters. Navigable waters have 
 been divided into two classes, public and semi-public, the distinction being 
 due to the ownership. Public navigable waters are those the soil beneath 
 which is common property. The public has not only the right of naviga- 
 tion, but all the other rights incident to ownership, such as fishing and 
 gathering ice, seaweed, sand, gravel, etc. To this class belong (i) tide- 
 waters, including the sea and its arms and tidal rivers; (2) in many states all 
 fresh-water rivers and lakes which afford capacity for valuable floatage. The 
 open sea has always been held the common property of all nations. A 
 government is held to have dominion adjacent to its coasts for a distance 
 equal to the range of cannon, or formerly about three miles. The range of 
 cannon is taken as the measure of distance, on the principle that the dominion 
 of the state extends only So far as it may be maintained by force from the 
 coast. The increased range of modern ordnance would doubtless extend 
 this three-mile limit by several fold. 4 When the seashore is indented with 
 bays or coves, the distance is measured from a straight line drawn between 
 the inclosing headlands. 5 The title to all tide-waters and their bays in this 
 country is vested in the several states for the use and benefit of the public. 6 
 
 237, As Regards Bathing, It has been held in England that the public 
 has no common-law right to bathe in the sea, and a person licensed to 
 conduct a bathing establishment is not thereby warranted in placing it on a 
 
 toward v. Ingersol, 17 Ala. 780. Field's International Code, |>d ed.] 28; 
 
 2 Starr v. Child, 20 Wend. (N. Y.) 149. The Maxim Zone, .32 Alb. Law Jour. 104. 
 
 3 Howard v. Ingersol, 13 How. (U. S.) 5 16 Amer. & Eng. Ency. Law 248, and 
 380. cases cited. 
 
 *See Hall's International Law 127; 6 16 Amer. & Eng. Ency. Law 248. 
 
 * See Sees. 371-420, infra. 
 
238. OPERATIONS PRELIMINARY TO CONSTRUCTION. I $2 
 
 beach which is private property. 1 The English decisions against common-law 
 rights to bathe in the sea were probably in reference to the use of private 
 property for such purposes. The only practical restraint upon the privilege 
 of sea-bathing is believed to be that which is imposed by decency and a 
 respect for public morals. 2 Whatever the law may be with regard to bathing, 
 there can be no question as to the rights of parties to go over private property 
 for the purpose of bathing in the sea or catching fish. Such acts are acts of 
 trespass. 3 
 
 238. Navigable Inland Rivers are Usually Public Property. In many 
 of the states navigable inland rivers in the sense of the American decisions 
 are public property. Grants of land bordering upon them will not convey to 
 the middle of the stream as at common law, but are limited by banks either 
 at<high- or low -water mark, and such streams have all the general character 
 of public waters.* In the states of Alabama, Arkansas, California, Indiana, 
 Iowa, Kansas, Minnesota, Missouri, Nevada, Oregon, Pennsylvania, Ten- 
 nessee, Virginia, and West Virginia the ownership of non-tidal navigable 
 rivers is in the public, and is subject to the control of the state. In the states 
 of Kentucky, Michigan, New York, and North Carolina decisions have been 
 made upholding the same doctrine, but later cases have so modified the 
 earlier decisions that it seems justifiable to withdraw them from the group and 
 place them under the head of semi-public streams. 4 In Connecticut, 
 Delaware, Georgia, Illinois, Missouri, Maine, Maryland, Massachusetts, 
 Mississippi, New Hampshire, New Jersey, Ohio, Rhode Island, South 
 Carolina, Vermont, and Wisconsin navigable rivers are held to be private 
 property. 
 
 The question of the ownership of the soil under water is one which each 
 state is at liberty to determine for itself, and if it extend the right of a riparian 
 owner to the center of the stream, it is not for others to raise objection. 5 ! In 
 considering government land-grants the United 'States Supreme Court has 
 held that the court does not hesitate to decide that Congress, in making a dis- 
 tinction between navigable and unnavigable streams, intended to provide that 
 the common laws of riparian ownership should apply to land bordering upon 
 unnavigable streams, but that the title to lands bordering upon navigable 
 streams should stop at the stream, and that all such streams should be deemed 
 to be and remain public property. 6 
 
 In many of the states of the Union the legal status of non-tidal navigable 
 waters is an average between the law governing the tide-waters which are 
 
 1 Mace v. Philcox, 15 C. B. N. S. 600. 8 Hetfield v. Baum, 13 Ired. (N. C.) 394. 
 
 2 Gould on Waters, 26; Rex v. 4 See 16 Amer. & Eng. Ency. Law 250. 
 
 Gunder, 2 Camp. 89; McManus v. Car- 5 Barney v. Keokuk, 94 U. S. 324. 
 
 michael, 3 la. i; Solliday v. Johnson, 38 6 St. Paul, etc., R. Co v Schurmeir, 
 
 Pa. St. 380. 7 Wall. (U. S.) 272, 288 [1868]. 
 
 * See Sees. 401-420, infra. \ See Sees. 412-420, infra. 
 
153 NAVIGABLE WATERS. PUBLIC AND PRIVATE RIGHTS. 240. 
 
 entirely public and those waters which are unfit for navigation or wholly 
 private. Such non-tidal waters and the soil beneath them are held to be 
 private property, but the owner's interest therein is qualified by being subject 
 to a public easement of passage. In other words, the law which is applicable 
 to public roads and highways is made applicable to streams. 
 
 The distinction between waters navigable in law and those merely navi- 
 gable in fact, where the tide does not ebb and flow, practically only affects 
 questions of title to the soil, rights of fishery, and the like, and not the public 
 right of navigation. 1 
 
 The ownership to the middle of a navigable river does not carry with it 
 the right to the exclusive use of the water over land ordinarily covered by 
 water, but is subordinate to the paramount easement of navigation by the 
 public, which includes the right to use such water for navigation and com- 
 merce, and such uses as may be reasonably incident thereto. 2 
 
 239. Waters Between States. By virtue of the commercial powers of 
 Congress a state exercises complete control over navigable waters entirely 
 within its borders. 3 * When the waters of a stream constitute the borders or 
 are between states they are subject to the concurrent jurisdiction of all. The 
 territory of states and nations when bounded by lakes and rivers is held to 
 extend to the center of the stream. Exception is made in the case of the 
 Ohio, the Potomac, the Hudson, and the Chattahoochee; the control of the 
 Ohio belonging to Kentucky, of the Potomac to Maryland, of the Hudson to 
 New York, and of the Chattahoochee to Georgia. The stream belongs to the 
 older state in each case. 4 
 
 240. Public Easement of Passage over Streams is Paramount. The 
 public has a right of passage over all streams which have a capacity for that 
 purpose. 5 This right includes not only navigation for boats and vessels, but 
 also floatage and travel upon ice. 6 Navigation of waters has been held to be 
 paramount to all other rights and interests. It is superior to fishing and to 
 the enjoyment of an oyster-bed, and it has been held in England that it could 
 not be destroyed by a grant. 7 
 
 The right to make improvements for the development of the state or 
 country has been held inferior to the rights of navigation, such as the right to 
 lay pipes in the bed of a stream; 8 or to enjoy a ferry franchise; 9 or to engage 
 
 1 People v. Jessup, 51 N. Y. Supp. 228. 6 French v. Camp, 18 Me. 433; State v. 
 [1898]. Wilson, 42 Me. 9; West Roxbury v. 
 
 2 Pollock v. Cleveland Shipbuilding Co. Stoddard (Mass.), 7 Allen 158; Woodman 
 (Sup.), 47 N. E. Rep. 582. v. Pitman, 79 Me. 456. 
 
 3 i6 Amer. & Eng. Ency. Law 257; see 7 16 Amer. & Eng. Ency. Law 260. 
 
 United States*/. Pellingham Bay B. Co. 8 Milwaukee Gas Light Co. v. Game- 
 
 (C. C. App.) 81 Fed. Rep. 658 [1897]. cock, 23 Wis. 144. 
 
 4 See 16 Amer. & Eng. Ency. Law 258; 9 Steamboat Globe v. Kutz (la.), 4 G. 
 
 Tyler on Boundaries, pp. 78-80. Green 433; Babcock v. Herbert, 3 Ala. 
 
 ' 5 Barnard v. Hinckley, 10 Mich. 459. 39 2 - 
 
 * See Sec. 431, infra. 
 
241. OPERATIONS PRELIMINARY TO CONSTRUCTION. 1 54 
 
 in fishing ; l or to maintain a boom ; 2 or a pipe-line for gas or water, or telegraph 
 lines or cables, or a system of sewerage ;* or the right to use and maintain 
 bridges. 3 . A bridge constructed over a navigable stream without lawful 
 authority constitutes a nuisance. 4 
 
 In Illinois it has been held that the right of navigating a stream and the 
 right to bridge it are coexistent. 5 When a bridge has been built across a 
 navigable stream and a reasonably adequate passageway has been left, it is 
 negligent and unlawful to float down a mass of logs which exceed the capacity 
 of the passageway, to the injury of the bridge. 6 
 
 241. Improvement of Navigation Paramount to Individual Rights. A 
 state may authorize improvements that shall make an unnavigable stream a 
 navigable stream ; 7 or the construction of a railroad on the Hudson River in 
 front of docks and wharves; 8 or the filling up of arms, bayous, and sloughs 
 of the Mississippi River, though formerly used for navigation ; 9 or the taking 
 of the water power of a navigable stream for the purpose of improving the 
 same. 10 The state of Mississippi may improve the navigation of the Mississippi 
 River. n 
 
 Riparian owners are not entitled to compensation for injuries ordinarily 
 incident to navigation or to improvements in streams strictly navigable. 
 They are entitled to compensation for injuries that are not directly incident to 
 such improvement. The public has a paramount right to navigable waters 
 which were in common navigable, and the state has an incidental power to 
 regulate, control, a'nd improve them as against private rights therein. This 
 does not, however, include the authority to take the waters for other purposes, 
 as for supplying a city without making just compensation to those who are 
 injured. 12 Private property must not be taken nor interfered with in the 
 improvement of navigable waters. If, in making an unnavigable stream 
 navigable, the water-power of the riparian owner is destroyed, he is entitled to 
 compensation. 13 It has been held that if a statute declare a river which is not 
 
 1 16 Amer. & Eng. Ency. Law 269. But baum v. Russell, 4 Nev. 551. 
 
 see Morris v. Graham (Wash.), 47 Pac. 7 Carondelet C. Nav. Co. v. Parker, 29 
 
 Rep. 752. La. Ann. 430; Wisconsin Imp. Co. v. 
 
 2 Miller v. Hare (W. Va.), 28 S. E. Rep. Manson, 43 Wis. 255. 
 
 722. 8 Ormerod v. N. Y., etc., Co., 13 Fed. 
 
 3 Scott v. Chicago, i Biss. (U. S.) 510; Rep. 370. 
 
 Castello v. Landwehr, 28 Wis. 522; Gates 9 Ingraham v. Chicago, etc., Co., 34 
 
 v. N. Pac. R. Co., 64 Wis. 64; Farmers' la. 249. 
 
 Coop. Mfg. Co. v. Albemarle, etc., R. 10 Greenbay, etc., & C.Co. v. Kaukauna, 
 
 Co. (N. C.), 23 S. E. Rep. 43. etc., Co., 70 Wis. 635. 
 
 4 People v. Jessup, 51 N. Y. Supp. 228 "Withers v. Buckley, 20 How. (U. S.), 
 [1898]. 84. 
 
 5 111. R. Pac. Co. v. Peoria Bdg. Assn., 12 Smith v. Rochester, 92 N. Y. 463; 
 38 111. 467. And see Chicago v. McGinn, 16 Amer. & Eng. Ency. Law 266. 
 
 51 111. 266. 13 Walker v. Board of P. W., 16 Ohio 
 
 6 Bucki v. Cone, 25 Fla. i; Mandle- 540. 
 
 * See Sec. 242, infra. 
 
155 NAVIGABLE WATERS. PUBLIC AND PRIVATE RIGHTS. 242. 
 
 navigable to be a public highway and does not make any provision for com- 
 pensation to riparian owners, the act does not make it so. l 
 
 A riparian owner on a navigable river has the right of access to the navigable 
 part of the river from the front of his lot, and the right to build a landing. 2 
 The right of access across abutting tide-lands to deep water is an incident to 
 ownership in fee of uplands in Alaska. 3 
 
 The United States has the right to make improvements upon submerged 
 land, necessary for the aid of navigation, without compensation to the owner 
 thereof, and where access to the open water is thereby cut off. 4 Laws, con- 
 stitutional or statutory, concerning expropriation of property, and requiring 
 compensation therefor, have no application to property legitimately taken for 
 levee purposes; and private injury resulting therefrom is damnum absque 
 injuria* The occupancy of submerged lands in a navigable river by a city 
 for an ice-break, bridge-rest, and a draw-span for navigation purposes, and in 
 no way interfering with the use of the lands not submerged, is not such an 
 occupancy in law as will entitle the riparian owner to treat the city as a 
 tenant and maintain an action for rent. 6 The owner of a naked lot bounded 
 by navigable water is not entitled to compensation for being deprived of access 
 thereto if the government utilizes the water-bed up to his shore-line. 7 
 
 242. Obstruction of Navigable Waters. Obstructions in navigable 
 waters are prima facie nuisances. No amount of benefit to an indefinite 
 number of individuals or to the community can excuse the public incon- 
 venience resulting from an obstruction of a navigable river, and evidence of 
 such benefit is not admissible. 8 An erection of an embankment in a port or 
 public river is indictable if it hinder navigation, even though productive of 
 great benefits. Lines or cables stretched across a navigable channel must be 
 so placed as not to obstruct boats passing upon it. Crafts are not required 
 to take precautions to avoid such lines or cables. Whether such cables are a 
 nuisance and therefore unlawful may depend upon the circumstances of th< 
 particular case, as where a wire cable was stretched across for a guy to a ferry- 
 boat. 9 It has been held that gas- and water-pipes stretched across a navigable 
 stream should be buried beneath the bed, or otherwise they constitute an 
 unlawful obstruction. 10 Telegraph cables must not be so laid as to come in 
 
 1 Olive v. State, 86 Ala. 88. And see Leg. News 345. 
 
 Town of Pierpont v. Loveless, 72 N. Y. 8 Gold v. Carter (Tenn.), g Hump. 369. 
 
 211: Morgan v. King, 35 N. Y. 454. 9 The Vancouver, 2 Sawy. (U. S.) Si; 
 
 2 Peoples. Woodruff, 51 N. Y. Supp. 515 Ladd v. Foster, 31 Fed. Rep. 827; The 
 [1898]. Imperial. 38 Fed. Rep. 614; The Echo, 
 
 3 Lewis v. Johnson (D. C.), 76 Fed. Rep. 19 Fed. Rep. 45,3. Other cases cited, 16 
 476. Amer. & Eng. Ency. Law 267. 
 
 * Scranton v. Wheeler (Mich.), 71 N. W. 10 Omslaer v. Philadelph a Co., 31 Fed. 
 
 Rep. 1091. Rep. 354; Milwaukee GasCo. v. Game- 
 
 5 Peart v. Meeker (La.), 12 So. Rep. cock, 23 Wis. 154. And see Buffalo Pipe 
 
 490. Co. v. New York, etc., R. Co., 10 Abb. 
 
 6 City of Peoria v. Ballance, 61 111. N. Cas. (N. Y.) 107; United N. J. R. & 
 
 APP- 309. Canal Co. v. Standard Oil Co., 33 N. J. 
 
 'People v. Revell (111. C. C.), 29 Chic. Eq. 123. 
 
242. OPERATIONS PRELIMINARY TO CONSTRUCTION. 156 
 
 contact with and annoy or delay vessels navigating the stream. Authority 
 from the state or federal government to lay such cables under water will not 
 justify such an interruption of navigation. 1 
 
 The fact that a structure [weir] was erected under proper authority but 
 afterwards becomes an obstruction to navigation makes it unlawful. 2 A 
 wharf-owner may not place a hidden structure between high- and low-water 
 mark if it obstructs navigation. 3 A riparian owner may not construct a jetty 
 upon a navigable tidal river to protect his soil if navigation is or may be 
 impeded. 4 Deposits and sewage which fill 'up a harbor, or a portion of it, to 
 the obstruction of navigation, constitute a nuisance. 5 Deposits of sediment 
 and debris are equally so. 6 Floating-docks, elevators, or storehouses in rivers 
 or harbors have been held public nuisances unless authorized. Impediments 
 which are only slight or temporary or which are incidental to the right of 
 passage are held not actionable. If structures are located so as to afford 
 passage for vessels, they are held not nuisances. 7 The right of navigation 
 must be exercised with due and proper regard to the rights of others. A 
 boat, vessel, raft, or other floating object may constitute an unlawful 
 obstruction. Whatever is reasonably necessary to the exercise of such rights 
 may be done if they are exercised with reasonable care. The right to occupy 
 a highway, such as a navigable river within the jurisdiction of the city, 
 permanently as a home, must be exercised upon such conditions as may be 
 imposed by the state. 8 
 
 Navigable streams are under the control of the federal government, which 
 undertakes to control commerce and especially interstate commerce. Under 
 the provision of the federal constitution giving Congress power " to regulate 
 commerce," the jurisdiction of the United States over navigable waters is 
 paramount to the title of the state to the land under the water, and therefore 
 the ownership of such land does not include the right to erect a structure 
 which interferes with navigation. 9 To bring obstructions and nuisances in 
 navigable waters lying within a state within the cognizance of the federal 
 courts there must be some statute of the United States directly applicable to 
 such streams. 10 
 
 Stephens & Co. Transp. Co. v. West- Bloomfield G. Min. Co. (Cal. C. C.), 81 
 
 ern Union Tel. Co., 8 Ben. 502; Blanch- Fed. Rep. 243. 
 
 ard v. Western Union Tel. Co., 60 N. Y. 6 Garitee v. Baltimore, 53 Md. 422; 
 
 510; City of Richmond, 43 Fed. Rep. 85. People v. Gold Run, etc., Co., 66 Col. 
 
 2 Williams v. Wilcox, 8 A. & E. 314; 138. 
 
 United States v. Moline (U. S. D. C.), 82 7 16 Amer. & Eng. Ency. Law 268. 
 
 Fed. Rep. 592 [1897], a bridge. But see People v. Revell (111. C. C.), 29 
 
 3 White v. Phillips, 15 C. B. N. S. 245. Chic. Leg. News 345, and Illinois C. R. 
 
 4 Atty. Genl. v. Lonsdale, 7 L. R. Eq. Co. v. Illinois, 146 U. S. 387. 
 
 377. 8 Robertson v. Commonwealth (Ky.), 
 
 5 Franklin Wh. v. Portland, 67 Me. 46; 40 S. W. Rep. 920. 
 
 Clark v. Peckham, 10 R. I. 35: Brayton 9 Jencks v. Miller (Sup.), 40 N. Y. 
 
 v. Fall River, 113 Mass. 218; Washburn, Supp. 1088. 
 
 etc., Mfg. Co. v. Worcester, 116 Mass. 10 United States v. Bellingham Bay 
 
 458; Boston Roll. Mills v. Cambridge, Boom Co. (C. C. A.), 81 Fed. Rep. 658. 
 117 Mass. 396; United States v. N. 
 
157 NAVIGABLE WATERS. PUBLIC AND PRIVATE RIGHTS. 243. 
 
 Acts of Congress merely making appropriations for the improvement of a 
 river lying within a state do not operate as an inhibition against state legisla- 
 tion authorizing the construction of booms, dams, piers, etc., so. as to make 
 unlawful such structures when erected under state authority. 1 
 
 The owner either of the adjacent upland or of the soil under a stream 
 navigable in fact, is not authorized to construct over it a bridge which inter- 
 feres with navigation without the authority of the legislature or other public 
 officers .to whom the legislature has delegated the power. 2 Congress has 
 power to order the removal of any obstruction to navigation, as a bridge, even 
 though its construction was authorized by the state within whose boundaries 
 it was; 3 but the jurisdiction of the United States over a navigable stream does 
 not extend several hundred miles above the navigable portion. 4 
 
 Congress usually requires the plan of a structure to be erected in or over 
 a navigable stream to be approved by the Secretary of War. An act of 
 Congress which gives authority to the Secretary of Wai to give notice of the 
 alteration of bridges that he believes to be an unreasonable obstruction to 
 navigation, and which empowers the district attorney to prosecute parties 
 refusing to comply with such notice, is not unconstitutional as vesting the 
 Secretary of War with either judicial or legislative powers. 5 
 
 As Act Congress, Sept. 19, 1890, which prohibits the erection of a bridge 
 in navigable waters without permission of the Secretary of War, excepts from 
 its operation bridges the construction of which has been previously authorized 
 by law, such consent is not necessary for a bridge authorized by the state 
 legislature previous to such act. 6 
 
 When an act of Congress makes it unlawful " to alter or modify the course, 
 location, condition, or capacity of the channel " of any navigable waters of 
 the United States unless such change is approved by the Secretary of War, the 
 city of Chicago has no power to widen the Chicago River without such 
 approval. 7 
 
 243, Streams for Floating Logs and Timber. Rivers and streams when 
 of such size and channel that they may be used for the purpose of floating 
 logs or in the transportation of any article of commerce are public highways. 
 Any obstructions placed in such streams which will prevent such a use are 
 public nuisances, and they may be abated by the action of a private individual 
 who surfers some special damage not common to the community, as where 
 one has logs then floating in. the stream and which cannot pass by reason of 
 the obstruction. 8 The use of a waterway leading from forest lands to navi- 
 
 1 United States z/. Bellingham Bay 6 United States v. Moline (U. S. D. C.), 
 Boom Co., supra. 82 Fed. Rep. 592. 
 
 2 People v. Jessup, 51 N. Y. Supp. 228 ' 6 Adams v. Ulmer (Me.), 39 All. Rep. 
 [1898]. 347 [1897]. 
 
 3 United States v. Moline (U. S. D. C.), 7 City of Chicago v. Law (111. Sup.), 33, 
 82 Fed. Rep. 592 [1897]. bee Mononga- N. E. Rep. 855. 
 
 helaNav. Co. z/.U-S., 13 Sup. Ct. Rep. 622. 8 Spokane Mill Co. v. Post (C. C.), 50 
 
 * United States v. Rio Grange D. & Fed. Rep. 429; Whisler v. Wilkinson, 22. 
 Irr. Co. (N. M.), 51 Pac. Rep. 674. Wis. 527 [1868]. 
 
243- OPERATIONS PRELIMINARY TO CONSTRUCTION. 158 
 
 gable water for the purpose of floating logs, etc., down the stream is a public 
 use within the fair meaning of the constitution, and will justify the exercise 
 of a right of eminent domain, and open it as a highway. 1 
 
 To make waters navigable in a legal sense, the commerce which is carried 
 on over them must be of an essentially valuable character. Such commerce 
 need not be carried on by means of boats and vessels. Waters which are 
 capable only of floating rafts and logs are public highways for that purpose. 2 
 
 In Alabama a stream which is suitable for purposes of navigation only at 
 certain periods of varying duration, and is not connected with tide-water, and 
 will float logs and flat-boats only during the winter seasons, is not necessarily 
 a public highway. The question as to whether such a stream is a public 
 highway is one of fact for a jury. 3 
 
 In order to be a navigable stream it is. not necessary that the waters shall 
 be deep enough to admit the passage of boats at all portions of the stream. 4 * 
 
 A non-navigable river may be used by the public for the purpose of float- 
 ing logs if the stream be sufficient for that purpose in its natural condition, 
 unaided by artificial means. 5 The fact that logs have been driven down a 
 stream by the use of dams does not make it a navigable stream if they cannot 
 be run down in ordinary weather. 6 Streams in which logs cannot be floated 
 without being propelled by persons on the banks are not navigable. 7 The 
 contrary rule prevails in Wisconsin. 
 
 In some decisions the right to float logs in a private stream has been held 
 to be confined to those logs cut near the streams. 8 
 
 The right of floatage of logs has been held not of such importance as to 
 sacrifice the use of water for machinery to the former use. 9 At those times 
 when a stream is not naturally floatable an upper riparian owner has no right 
 to detain the water until a flood can be caused sufficient to float logs to the 
 detriment of the lower riparian owner. 10 
 
 It is held that the waters of a stream need not be fit for navigation at all 
 times, but that their capacity therefor should recur with regularity. 11 The 
 
 1 In re Burns, 155 N. Y. 23, reversing Rep. 22. But see Whisler v. Wilkinson, 
 16 App. Div. 507. ' 22 Wis. 572 [1868], 
 
 2 16 Amer. & Eng. Ency. Law 242, 7 Brown v. Chadbourne, 31 Me. 9; 
 many cases cited; Collins v. Howard (N. Morgan v. King, 35 N. Y. 454. 
 
 H.), 18 Atl. Rep. 794. This rule is some- 8 Kupman v. Blodgett (Mich.), 14 N. 
 
 what qualified in South Carolina. See W. Rep. 109. See Smith v. Fonds, 64 
 
 Gates v. Wadlington (S. C.), I McCord Miss. 551; Morgan v. King, 35 N. Y. 454. 
 
 582; Amer. R. W. Co. v. Amsden, 6 Cal. 9 Middleton v. Flat River B. Co., 27 
 
 443. Mich. 533. But see Collins v. Howard 
 
 3 Olive v. State (Ala.), 5 So. Rep. 653 (N. H.)~ 18 Atl. Rep. 794. 
 
 [1889]. lo Thunder Bay B. Co. v. Speechly, 31 
 
 4 St. Anthony W.-p. Co. v. Board of Mich. 336; Witheral v. Muskegon B. Co., 
 Commrs., 158 U. S. 349. 68 Mich. 48. 
 
 5 DeCamp v. Thompson (Sup.), 44 N. n 16 Amer. & Eng. Ency. Law 243, 244; 
 Y. Supp. 1014; Collins v. Howard (N. Swan v. Munch (Minn.), 67 N. W. Rep. 
 H.), 18 Atl. Rep. 794. 1022. 
 
 6 Smith v. Carlow (Mich.), 72 N. W. 
 
 * See Sec. 234, supra. 
 
159 NAVIGABLE WATERS. PUBLIC AND PRIVATE RIGHTS. 243. 
 
 decisions are not agreed as to the rights of the public to use streams which 
 are capable of floating logs for but a part of the year. In those states where 
 the lumber industry is important such streams are held to be subject to the 
 public use during times when they have sufficient capacity. This is true in 
 the states of Maine, Michigan, Mississippi, Oregon, and Wisconsin. In other 
 states the rule is laid down that small streams capable only of floating logs 
 during a freshet or for a small part of the year are not subject to a public 
 easement of floatage. This was so held in the states of Alabama, Illinois, 
 Massachusetts, and New York. 1 When there was no evidence concerning the 
 character of the forests adjacent, or the number of people engaged in the 
 logging business, or that boats had ever navigated its waters, or that it was 
 exempt from the government survey as a public stream, it was held that the 
 stream, as a matter of law, was not a public stream. 2 
 
 In some states laws have been enacted requiring that logs shall not be 
 floated down certain rivers unless bound together in rafts or inclosed in 
 boats, and providing for the forfeiture of all logs floated in violation of such 
 statutes. Such a law has been held to be constitutional. 3 The law has been 
 held constitutional though the logs came from one state and passed through 
 into another. 4 
 
 The title of the owner, it seems, cannot be divested for the violation of 
 such a statute unless he had notice and an opportunity to show his innocence 
 of the violation of the law. 5 Timber was held not liable to forfeiture after it 
 had come into the custody and control of the owner. 6 
 
 It has been held not a crime to float rafts, logs, timber, boats, and vessels 
 loose and adrift in and upon the navigable waters of the United States. The 
 Kw making it a crime to obstruct navigation applies only to those obstruc- 
 tions which are permanent in their nature. 7 
 
 One driving logs in a navigable stream is liable only for injury to the 
 estates of riparian owners resulting from a lack of ordinary care, and it is 
 therefore improper to charge that one is liable for such injury if it might have 
 been foreseen by an ordinarily prudent man. 8 
 
 When a person has by proper proceedings acquired a right to maintain a 
 dam in a stream navigable for logging purposes, and by accident there is a 
 recent break in the dam, he is entitled to a reasonable time in which to repair 
 the dam, and to the reasonable detention of the logs of a navigator for its 
 protection. 9 The right to float logs in a stream may be acquired by adverse 
 
 1 But see Brown v. Schofield, 8 Barb. Mass. 580. 
 
 (N. Y.), 243; Meyer v. Phillips et at., 97 5 Craig v. Kline, 65 Pa. St. 399; Wendt 
 
 N. Y. 485 [1884]; Haines v. Welch, 14 v. Craig, 67 Pa. St. 424. 
 
 Ore. 319; Haines v. Hall, 17 Ore. 165. 6 Baron v. Davis, 4 N. H. 338. 
 
 2 Bayzer v. McMillan Mill Co. (Ala.), 7 United States v. Burns (C. C.), 54 
 16 So. Rep. 923. Fed. Rep. 351. 
 
 3 Craig v. Kline, 65 Pa. St. 399; Scott 8 Coyne v. Mississippi & R. R. Boom 
 v. Wilson, 3 N. H. 321. See United States Co.. 75 N. W. Rep. 748. 
 
 v. Burns (C. C.), 54 Fed. Rep. 351. 9 Pratt /. Brown (Mich.), 64 N. W. Rep. 
 
 4 Harrigan v. Conn. R. L. Co., 129 583. 
 
244. OPERATIONS PRELIMINARY TO CONSTRUCTION. l6o 
 
 use for the full prescriptive period, especially where the parties have gone 
 upon the servient lands and built dams and overflowed them. 1 
 
 244, Banks and Shores of Navigable Waters and their Use. Under the 
 civil law the public was entitled to the use of the banks and shores of navi- 
 gable waters as appurtenant to the right of passage, and the same law holds in 
 states where the principles of that system of law prevail. This is true in 
 Louisiana. Under the common law it is pretty well settled that the rights of 
 navigators are limited to the shore below high-water mark, and that the ease- 
 ment of passage does not include the use of the banks and shores for general 
 purposes incident to navigation. 2 It has been held that the public have no 
 general rights as against riparian owners to land, embark, load, or unload 
 freight. It has even been held in some cases that a part of the highway could 
 not be used for such purposes, but there are numerous cases in which it has 
 been held that a ferry might be landed at a highway and the same be used for 
 a landing. 3 It has been held that the public cannot acquire a right to the 
 landing by custom or prescription in New York, Indiana, and Wisconsin. 
 A different rule has been established in Massachusetts, North Carolina, 
 Pennsylvania, and Maine. The legislature may, of course, take private 
 property for the use of a landing, but it seems the selectmen of the town, 
 cannot do so unless expressly authorized by their charter. 4 As against all 
 except riparian owners the public have a right to moor or anchor on the 
 banks or shores of navigable waters. 
 
 There is no public right at common law to tow from the banks, nor has- 
 the public a right of access to waters from inlying lands. The owners of 
 stranded property may go upon the banks for the purpose of reclaiming what 
 belongs to them. Persons floating logs down a stream may go upon the 
 banks in cases of necessity. 5 A builder of vessels moored opposite the lands- 
 of a riparian owner for the purpose of repairs or for placing therein engine, 
 boilers, and machinery has no right to carry lines from them across the river- 
 bank of such owner against his objection, and fasten them upon the latter '& 
 land. 6 If he does so against the owner's objection, and fastens them upon 
 the land of such builder, and insists upon the right to continue such acts, the 
 riparian owner may be entitled to an injunction although his land is unim- 
 proved and such acts produce no actual present damage. 6 
 
 Among the rights of the public in a navigable stream is that of mooring 
 vessels for the purpose of repairs, and of putting in engine, boilers, and 
 machinery after such vessels have been launched. Such use, reasonably 
 enjoyed, is not a trespass upon the lands of a riparian owner in front of 
 
 1 Swan v. Munch (Minn.), 67 N. W. 3 16 Amer. & Eng. Ency. Law 262. 
 Rep. 1022 ; Ramgren v. McDermott And see Murphy v. Bullock (R. I.), 37 
 (Minn.), 76 N. W. Rep. 47- But see Atl. Rep. 348. 
 
 Meyer v. Phillips et at., 97 N. Y. 485 4 16 Amer. & Eng. Ency. Law 2^2. 
 
 [1884], and Commrs v. Catawba Lumb. 5 16 Amer. & Eng. Ency. Law 263. 
 
 Co. (N. C.), 20 S. E. Rep. 707. 6 Pollock v. Cleveland" Shipbldg. Co. 
 
 2 16 Amer. & Eng. Ency. Law 261. (Ohio), 47 N. E. Rep. 582 [1897]. 
 
l6l NAVIGABLE WATERS. PUBLIC AND PRIVATE RIGHTS. 245 
 
 whose river-bank, outside of the dock-line, such vessels are moored, and such 
 owner will not be entitled to an injunction forbidding such use unless special 
 injury to his property is shown. 1 
 
 245. Rules and Restrictions Governing the Use of Navigable Waters. 
 The use by the public of navigable waters is subject to rules and restrictions 
 not unlike those which apply to highways in general. The right must be 
 exercised in a reasonable way and with due regard to the rights of riparian 
 owners and other navigators. What is a reasonable use is a question of fact 
 and may be determined by the circumstances of each case. The .subject of 
 navigation is too large for even a brief treatment in this book, and the reader 
 is referred to other works upon the subject. 
 
 The public right of navigation may be restricted or even extinguished by 
 natural causes or by legislative enactment. There are decisions to the con- 
 trary in those states where the ordinance of 1787 was in force. It has been 
 held that highways by water could not be entirely destroyed. 2 
 
 The right to improve navigable waters is subject to government regulation 
 and control. In England it is vested in Parliament, and in the United States 
 the authority of Congress, under the commercial clause of the constitution, 
 has been held to be paramount. In the absence of congressional action 
 the power of the state legislature is held to be supreme. It may direct the 
 improvement of navigable rivers, or may authorize improvements by indi- 
 viduals or private corporations, and may levy tolls to ..eimburse the state 
 for the improvement. The state legislature may authorize the improvement 
 of a river within its own borders, and impose reasonable tolls to compensate 
 it for such improvement. 3 
 
 A property owner affected by an improvement in a navigable stream, as 
 the widening of a navigable river of the United States by a city, may object on 
 the ground of the city's want of power, although the United States makes no 
 complaint. 4 
 
 1 Pollock v. Cleveland Shipbuilding Mich. 628; Sands v. Manistee River Imp. 
 Co., supra. Co., 123 U.S. 288; Monongahela Nav. 
 
 2 16 Amer. & Eng. Ency. Law 264. Co. v. United States, 13 Sup. Ct. Rep. 
 
 3 Thames Bank v. Lovell, 18 Conn. 622. 
 
 500; Palmer v. Cuyahoga Co., 3 McLean 4 City of Chicago v. Law (111. Sup.), 33; 
 
 [U. S.) 226; Huse v. Glover, 19 U. S. 543; N. E. Rep. 855. 
 Benjamin v. Manistee R. Imp. Co., 42 
 
CHAPTER XIV. 
 SUBTERRANEAN OR UNDERGROUND WATERS. 
 
 251, Subterranean Waters Defined. Subterranean waters are of two 
 kinds: first, waters that percolate or flow through the ground beneath the 
 surface, and which have no well-defined channel that is known or ascertain- 
 able; secondly, underground currents of water that flow in defined and known 
 channels. The law with regard to these two kinds of underground waters is 
 quite different; the law of the one partaking of the character of the land, 
 soil, and other characteristics of property, and the second being governed by 
 the same laws that belong to watercourses. l 
 
 252. Percolating Waters. The term ' ' percolating waters, ' ' as applied to 
 underground waters, means any flowage of subsurface waters other than those 
 of a running stream, open, visible, and that may be clearly traced. 2 Such 
 underground percolating waters are as much the property of the owner of the 
 land as are ores, rocks, etc., beneath the surface. 3 The owner of the soil 
 acquires all that lies beneath its surface, whether it is solid rock or porous 
 ground or venous earth, or part soil and part water. The person who owns 
 the fee-simple may take and apply all that is found therein for his own 
 purpose at his own free will and pleasure. If, in the exercise of such rights, 
 he interrupts so as to have the water collected in the underground springs 
 in his neighbor's well, this inconvenience falls within the description of 
 damnum absque injuria which cannot become a cause of action. 4 The only 
 remedy which the owner of the well can adopt to prevent such water from 
 being diverted from his well is to sink his well deeper. 5 
 
 Percolating waters belong absolutely to the owner of the soil. 6 Such 
 
 1 27 Amer. & Eng. Ency. Law 423; Reclamation of Lands, vol. 4, p. 348 
 Gould on Waters (2d ed.), 280; cases [1890]. 
 
 cited in Public Documents, Report of 4 Ashton v. Blundell, 12 M. & W. 324 ; 
 
 Spec. Comm. U. S. Senate on the Irriga- Trustees of Delhi v. Youmans, 50 Barb. 
 
 tion and Reclamation of Arid Lands 316 [1867]. 
 
 {Irrigation in the U. S., by R. J. Hinton, 5 News River Co. v. Johnson. 2 El. & 
 
 p. 355). El. 445; Com. v. Fisher (Pa.), i P. & W. 
 
 2 Mosier v. Caldwell, 7 Nev. 363. 462. But see Forbell v. City of New 
 
 3 27 Amer. & Eng. Ency. Law 427; York. 56 N. Y. Supp. 790 [1899]. 
 
 Reid v. Reid (CaU, 44 Pac. Rep. 564; 6 Gould v. Eaton (Cal.), 44 Pac. Rep. 
 
 Cross v. Kitts (Cal.), 22 The Reptr. 361 319; 27 Amer. & Eng. Ency. Law 425, 
 [1886]; cases cited in Report of Sp. many cases cited ; Brown v, Kistler (Pa.), 
 Comm. U. S. Senate on Irrigation and 42 Atl. Rep. 885. 
 
 162 
 
163 SUBTERRANEAN OR UNDERGROUND WATERS. 253. 
 
 waters are regarded as part of the earth, with the absolute right of use and 
 appropriation by the "owner of the land in which it is. l It is well settled by 
 authority that the owner of land may intercept or impede the natural under- 
 ground percolations of his land even though it destroy the sources of supply 
 of his neighbors' springs or welts. The owner of land may dig wells or 
 drainages upon his land, conduct mining operations, or in any way change 
 its natural condition even though it destroy the percolating waters of other 
 adjacent owners. 2 
 
 The reasoning is briefly this : In the absence of express contract and of 
 positive authorized legislation as between proprietors of adjoining lands, the 
 law recognizes no correlative right in respect to underground waters percolat- 
 ing, oozing, or filtering through the earth, and this mainly from considera- 
 tions of public policy, viz. : (i) because the existence, origin, movement, and 
 course of such waters, and the causes which govern and direct their movement, 
 are so secret, occult, and concealed that an attempt to administer any set of 
 legal rules in respect to them would be involved in hopeless uncertainty, and 
 therefore would be practically impossible; (2) because any such recognition 
 of correlative rights would interfere, to the material detriment of the common- 
 wealth, with drainage and agriculture, mining, the construction of highways 
 and railroads, with sanitary regulations, building, and the general progress of 
 improvement in works of embellishment and utility. 
 
 253. Percolating Waters Distinguished from Surface Currents. The 
 rights of adjoining proprietors in running streams, and the general laws 
 relative thereto, have no application to undefined subterranean waters which 
 are the result of natural and ordinary percolations through the sorl. As 
 Justice Tindall has said in an English case: 3 " There is a marked and sub- 
 stantial difference between watercourses flowing on the surface, and springs 
 beneath the surface of the ground. In the case of a well sunk by a proprietor 
 in his own land, the water which feeds it from the neighboring soil does not 
 flow openly in the sight of the neighboring proprietor, but through the hidden 
 veins of the earth beneath the surface. No man can tell what changes these 
 underground sources have undergone in the progress of time. No proprietor 
 knows what part of the water is taken from beneath his own soil, how much 
 he gives originally, or how much he transmits only, or how much he receives. 
 On the contrary, until the well is sunk and the water collected by draining 
 into it, there cannot properly be said, with reference to the well, to be any 
 flow at all. The difference in the two cases with respect to the consequences, 
 if the same law be applied to both, is apparent to any one. In the case of 
 a running stream, the owner of the soil merely transmits the water over its 
 surface ; he receives as much from the higher neighbor as he sends down to 
 
 1 Wheelock v. Jacobs (Vt.), 40 Atl. Rep. Trustees v. Youmans, 50 Barb. 316 
 41 [1897]; Trustees of Delhi v. Youmans, [1867]; Bloodgood v. Ayers, 108 N. Y. 
 50 Barb. 316 [1867]. 400 [1888]. 
 
 2 27 Amer. & Eng. Ency. Law 425; 3 Acton v. Blundell, 12 M. & W. 324. 
 
253- OPERATIONS PRELIMINARY TO CONSTRUCTION. 164 
 
 his neighbor below; he is neither better nor worse; the level of the water 
 remains the same.' If the man who sinks the well on his own land can 
 acquire by that act an absolute and indefeasible right to the water that 
 collects in it, he has the power of preventing his neighbor from making any 
 use of the springs in his own soil which shall interfere with the enjoyment of 
 the well. He has the power still further of debarring the owner of the land 
 in which the spring is found and through which it is transmitted from drain- 
 ing his land for the proper cultivation of the soil, and thus by an act which 
 is voluntary on his part, and which may be entirely unsuspected by his 
 neighbor, he may impose on such neighbor the necessity of bearing a heavy 
 expense if the latter has erected machinery for the purpose of mining and 
 discovers when too late that the appropriation of the water has already been 
 made. Further, the advantage on one side and the detriment to the other 
 may bear no proportion.' The well may be sunk to supply a cottage or the 
 diinking-place of cattle, while the owner of the adjoining land may be pre- 
 vented from mining metals and minerals of inestimable value; and lastly, 
 there is no limit of space in which the claim of right to an underground spring 
 may be confined. In the present case the nearest coal-pit is at a distance of 
 half a mile from the well, and it is obvious that the law must equally apply if 
 there is an interval of many miles." 
 
 In an American case 1 Justice Strong observes: " A surface stream cannot 
 be diverted without knowledge that the diversion will affect a lower proprietor. 
 Not so with an unknown subterranean percolation or stream. One can 
 hardly have rights in another's lands which are imperceptible, of which 
 neither himself nor the other can have any knowledge. No such rights can 
 be supposed to be taken into consideration when either the upper or lower 
 tract was purchased. The purchaser of lands on which there are unknown 
 subsurface currents must buy in ignorance of any obstacle to the full enjoy- 
 ment of his purchase indefinitely downwards, and the purchaser of land on 
 which a spring rises, ignorant whence and how the water comes, cannot 
 bargain for any right to a secret flow of water in another's land. It would 
 seem, therefore, most unreasonable that the latter should have a right to 
 prevent his neighbor from enjoying his own land in the ordinary way, either 
 by digging wells, cellars, drains, or by quarrying and mining. A further 
 reason for holding that there is no such right is found in the indefinite nature 
 and great extent of the obligation which would be imposed if the right 
 existed. Instances have occurred where excavations have had the effect of 
 draining land, although at the distance of several miles. 2 Even in the case 
 before us, the mining-pit of the defendants is more than three hundred feet 
 distant from the plaintiff's spring. These appear to us very sufficient reasons 
 for distinguishing between surface and subterranean streams, and denying to 
 
 1 Haldeman v. Bruckhart, 45 Pa. St. 2 Gale & Wheatley on Easements 178. 
 
 5U- 
 
165 SUBTERRANEAN OR UNDERGROUND WATERS. 254. 
 
 inferior proprietors any right to control the flow of water in unknown sub- 
 terranean channels upon an adjoiners' land. They are as applicable to 
 unknown subsurface streams as they are to nitrations and percolations through 
 small interstices. Neither can be defined watercourses, though they may be 
 definable." l 
 
 254. Sapping and Diverting Sources of Springs and Wells. The owner 
 of land may lawfully dram the natural percolations from his neighbor's land, 
 and he may prevent the percolations of his own land going into the well of 
 his neighbor. 2 Therefore where a spring was fed solely from percolating 
 waters from a swamp or wet lands surrounding the same and not by a running 
 stream, and one party had collected the water of the spring into a reservoir and 
 transmitted it by pipes for years, it was held that he has no action against 
 another who had diverted the water from the land by means of a tunnel and 
 ditch constructed above the reservoir on his own lands. 3 
 
 As between two corporations pumping water from their respective 
 premises for transportation and sale, one cannot complain of the diversion of 
 percolating water from his own land by the other. Their rights in this respect 
 are equal. 4 
 
 However, the right of an owner of land to divert or consume percolating 
 waters has been held ii6t to extend to authorize the destruction of a stream, 
 spring, or well by cutting off its source of supply, when the acts causing such 
 result are not done for the beneficial use and enjoyment for any purpose of 
 the land itself whereon they are done, but for the sole purpose of gathering 
 water, by pumps as well as by natural means, to be carried to a distant place 
 for the use of strangers having no right to the water as against the owners of 
 neighboring lands. 5 
 
 A spring from which no stream or watercourse runs, but the source of 
 which and the flow of its waste are alike underground, and so matters of 
 speculation and uncertainty, belongs to the owner of the land, and he may 
 divert and use the waters to his own uses. 6 In this case the water came from 
 a spring situated on defendant's land, one hundred and twenty feet from plain- 
 tiff's line, and had for many years been conducted to a trough. The waste 
 water from the trough disappeared into the ground one hundred feet distant, 
 near plaintiff's line, appeared on the surface, sometimes appeared to be in 
 motion toward a sluice, under a fence dividing defendant's land from 
 plaintiff's, where it again disappeared, and came up again to the surface, 
 twenty feet on plaintiff's side of the line, forming a spring or reservoir. 
 
 1 Case v. Hoffman (Wis.), 72 N. W. Cal. 615; Leonard v. Shatzer (Mont.), 28 
 Rep. 390 [1897]. Pac. Rep. 457. 
 
 2 New River Co. v. Johnson, 2 El. & * Merrick Water Co. v. City of Brook- 
 El. 435; Acton v. Blundell, 12 M. & W. lyn (Sup.), 53 N. Y. Supp. 16 [1898]; see 
 327. See also Hodgkinson v. Ennor, 4 Smith v. Brooklyn, 18 App. Div. 340. 
 
 B. & S. 241. Bloodgood v. Ayers, 108 5 Smith v. Brooklyn (Sup.), 46 N. Y. 
 
 N. Y. 400 [1888] ; Wilson v. Ward (Colo.), Supp. 141. 
 
 56 Pac. Rep. 573 [1899]. 6 Bloodgood v. Ayers, 108 N. Y. 400 
 
 8 So. Pac. Railroad Co. v. Dufour, 95 [if"*" 
 
255- OPERATIONS PRELIMINARY TO CONSTRUCTION. 1 66 
 
 Percolating water collected or gathered into a stream in a defined channel 
 by the owner of the land is subject to the same rights of ownership and use 
 as are ordinary waterways. l 
 
 255. Springs and Wells Drained by Construction of Public Works. If, 
 in the appropriation and use of land taken for public purposes, subterranean 
 waters are intercepted or diverted, no action can be had for damages. 2 A 
 city is not liable because, in the construction of a sewer, the water which 
 formerly percolated to a spring or well is drained. 3 It was so held when tjie 
 construction of a water-tunnel rendered a well dry. 4 If a railroad company in 
 the construction of its road renders a well or subterranean stream dry by 
 excavation of the ground, the party owning the well or stream can have no 
 right of action against the company. 5 
 
 It is sometimes held that a railroad or canal company acquires only a 
 right of way or mere usufruct in the land, and, not being the actual owner, that 
 it therefore cannot have the rights of an owner in the land, and cannot there- 
 fore exercise the privileges to the injury of adjoining owners. 6 It may well 
 be doubted if the ownership of a mere right of way is sufficient ownership of 
 land to entitle a railroad company to appropriate the waters under the surface 
 of the right of way. In a Massachusetts case 7 it was held that the railroad 
 company acquired only a special right to the use of the land upon the express 
 condition that it should pay all damages which might be occasioned to others. 
 
 Sometimes it is expressly provided by statute that charter companies 
 should be liable for consequential damages. 8 The doctrine that the draining 
 and destruction of a well by an adjoining owner of land exercising his right 
 to dig therein is damnum absque injuria where the well is not supplied by a 
 distinct vein of water, has no application where such draining and destruction 
 are caused by the construction of a tunnel for the water-supply of a city, under 
 authority of an act of Congress, over land in which a right of way only is 
 acquired, and the act provides a remedy for such an injury. 9 When a statute 
 makes a town liable for "damages occasioned by laying out, making, or 
 maintaining" a sewer, and another statute which applies to sewers provides 
 that, in estimating the damage, " regard shall be had to all the damages 
 done to the party whether by taking his property or injuring it in any 
 manner," a town which lawfully takes land and constructs a common sewer 
 therein, whereby a well upon land not taken, or adjoining land taken, is 
 
 1 Cross, v Kitts (Cal.), 22 The Reptr. Jamaica Pond Aq. Co., 133 Mass. 488. 
 361 [1886]. 7 Parker v. Boston R. Co., 3 Cush. 114. 
 
 2 Reg. v. Metropolitan Bd. Wks., 36. 8 Parker v. Boston, etc., Railroad Co., 
 & S. 710. supra; Trowbridge v. Brookline, 144 
 
 3 Elster v. Springfield, 49 Ohio St. 82, Mass. 139; Aldridge v. Cheshire Rail- 
 30 'N. E. Rep. 274. road Co., 21 N. H. 359. 
 
 4 Alexander v. United States, 25 Ct. of 9 United States v. Alexander, 13 Sup. 
 Q. 87. Ct. Rep. 529, 532; Manufacturing Co. z>. 
 
 s New Albany, etc., R. Co. v. Peterson, Atty. Genl., 124 U. S. 581, 8 Sup. Ct. Rep, 
 14 Ind. 112. 631. 
 
 8 See cases cited supra and Hart v. 
 
1 67 SUBTERRANEAN OR UNDERGROUND WATERS. 256. 
 
 made dry, the well being fed by water percolating through the soil, is liable 
 to pay damages therefor to the owners of the land in which the well is 
 situated. 1 
 
 An Iowa case held that where a railroad company acquired the right of 
 way over and through land for all purposes connected with the use, construc- 
 tion, and occupation of its railroad, it had the legal right to dig a well upon 
 such right of way and to use the water supplied by percolation for railroad 
 purposes, although it did materially diminish a grantor's spring. 2 
 
 A city is not liable to an abutting lot-owner for damages where, by build- 
 ing a sewer in the street or making any other legitimate use 'thereof, it drains 
 a spring on his lot by cutting off the water which for twenty-one years has 
 supplied it by percolation through the soil of the street, since the owner of 
 land cannot by prescription acquire any right to percolating water. 3 
 
 A city was held liable for damages caused by lowering the level of under- 
 ground waters under another's land by the operation of a pumping station 
 connected with its water-works. 4 
 
 256. Subsurface Currents Known and Defined. If subsurface currents 
 or percolations flow in defined and known channels, then they are governed 
 by the laws and principles which apply to watercourses. The word "defined" 
 as used in this description means a constricted and bounded channel, though 
 its course maybe undefined by human knowledge, and "known" refers to 
 knowledge by reasonable inferences. 5 If, in order to determine the existence 
 of subterranean channels, it is necessary to resort to excavations, then it is 
 not considered as " known " within the meaning of the law. 6 Methods fre- 
 quently resorted to to determine if the underground waters have a well- 
 defined and known course is by the introduction of some highly colored or 
 strongly smelling material at the source, and detecting by the sense of sight 
 or smell the presence of it at some point lower down and supposed to be on 
 the watercourse. The mere fact that the quantity of water at a place has 
 been diminished in proportion to that at the source may be some evidence 
 that both are upon the same subsurface current; but when water from a 
 spring disappears upon a person's land, and it is desired to prove that the 
 waters of this spring form part of a stream, it is not sufficient to show that, 
 since the diversion of the waters of the spring, the waters in the stream and 
 in the wells of people near it have perceptibly diminished. Especially is this 
 not conclusive evidence that they have a common source when the defendant 
 or owner of the land upon which the spring is diverted showed that there 
 has been less rainfall, that the timber about certain other springs from which 
 
 1 Trowbridge v. Town of Brookline * Forbell v. City of New York, 56 N. Y. 
 
 (Mass.), 10 N. E. Rep. 796 [1887]. Supp. 790 [1899]; Smith v. Brooklyn, 18 
 
 1 Hougan v. Milwaukee, etc., R. Co., App. Div. 340. 
 
 35 la. 558. 5 Gould on Waters (2d ed.) 81. 
 
 3 Elster v. Springfield (Ohio Sup.), 30 6 Ewart v. Belfast P. L. Guard., 9 L. 
 
 N. E. Rep. 274. R. Ir. 172. 
 
257. OPERATIONS PRELIMINARY TO CONSTRUCTION. 1 68 
 
 water flowed into the stream had been cut, that more land had been plowed 
 and more stock kept along the stream, and that in a canyon located near the 
 point where the water from the spring disappeared water flowed only for a 
 few days during a season of heavy rain; and in addition thereto expert 
 .geologists testified that the formation in the vicinity of the spring was such 
 as to exclude any probability that the waters thereof, after disappearing in the 
 ground, reappeared to form part of said stream. 1 
 
 257. Presumption that Waters are Percolating. If it does not appear 
 that the waters which came to the surface are supplied by a defined and 
 known flowing stream, it will be presumed to be formed by the ordinary 
 percolations of water in the soil, and therefore subject to no legitimate 
 purpose of the owner of the soil, even though, as a result thereof, they are 
 polluted, diminished, or diverted from land to which they would otherwise 
 .naturally have passed. a The onus of proof lies, therefore, upon the plaintiff 
 .claiming that the waters flow in a well-defined and known channel, and it 
 requires him to show that the stream when it emerges into light comes 
 irom, and has flown through, a well-defined subterranean channel, and to 
 show this without opening the ground by excavation or having recourse 
 to abstruse speculations of scientific persons. It should be ascertainable by 
 .men of ordinary powers and attainments exercising reasonable diligence. 3 
 When there is a controversy respecting the use of the waters of a channel, and 
 in the absence of anything to show that it is defined by any flowing water, it 
 will be presumed to be formed from the ordinary percolations of water and of 
 the soil. 4 
 
 Where the waters of a stream gradually disappear and percolate through 
 the sand, within limits not at all defined, except by the valley in which the 
 stream is located, over an impervious substratum, thus finding their way to a 
 lake, a riparian owner on an outlet to the lake has no right to have such 
 underground flow protected. 5 A mere rivulet, in regard to the right of the 
 owner to complain of its diversion by the owner of adjacent land, is to be 
 classed, not with running streams, but with percolating water. 6 
 
 258. Appropriation and Use of Subterranean Currents. When it is 
 determined that water flows in a defined subterranean stream, no one of 
 several persons whose wells tap the same channel can make an artificial use 
 of the water so as entirely to deprive the others of it. 7 When such waters are 
 used for water-supply by a city, and it is also used by an individual for the 
 
 1 Farwell v. Sturgiss W. Co. (S. D.), see Ocean Grove C. M. Assn. v. Asbury 
 73 N. W. Rep. 916 [1898]. Pk. Comrs., 40 N. J. Eq. 447; Meyer v. 
 
 2 Hanson v. McCue, 42 Cal. 303; Tampa Tacoma Co. (Wash.), 35 Pac. Rep. 601. 
 W.-w. Co. v. Cline (Fla.), 20 So. Rep. 5 Meyer v. Tacoma Light & Water Co. 
 780; semble Meyer v.- Tacoma Lt. & W. (Wash.), 35 Pac. Rep. 601. 
 
 Co. (Wash-.), 35 Pac. Rep. 601. 6 Merrick Water Co. v. City of Brook- 
 
 3 Black v. Ballymera Corcmrs., L. R. 17 lyn (Sup.), 53 N. Y. Supp. 10 [1898]. 
 
 Jr. 474. 7 Willis v. Perry (la.), 60 N. W. Rep. 
 
 4 Hanson v. McCue, 42 Cal. 303. And 727. 
 
169 SUBTERRANEAN. OR UNDERGROUND WATERS. 260. 
 
 operation of public bath-houses, the latter use is an artificial use of such 
 waters. 1 The owner of land over a subterranean stream may excavate the soil 
 so as to render the water available for his use, if by doing so he does not 
 pollute the water or diminish its flow perceptibly or divert it from its natural 
 course. 2 
 
 259, Underground Currents Compared with Watercourses. The same 
 general principles of the law which apply to watercourses and streams at the 
 surface of the earth will apply to well-defined and known subterranean 
 streams. No distinction exists between surface and subterranean streams. 
 If the latter are well defined and constitute a regular stream, one cannot 
 divert them or interfere with the rights of the owner below him. 3 If a subter- 
 ranean stream emerges and afterwards sinks and re-emerges, and if it has an 
 exact course that can be traced, the lower riparian owner will be protected 
 against diversion or pollution of the water. 4 If the course be well known, as 
 is often the case where it sinks underground for a short distance and then 
 emerges again, it cannot be contended that the owner of the soil in which the 
 stream flows cannot maintain an action for the diversion of it. 5 
 
 In limestone countries streams of great volume and power flow through 
 subterranean courses for great distances and then emerge from their caverns, 
 furnishing power for machinery of every description, and supply towns and 
 dwellings with water, for domestic and sanitary purposes. To permit these 
 streams to be obstructed or diverted merely because they run through sub- 
 terranean channels would be to forfeit the rights of mankind in relation to 
 flowing water. 6 The growth of certain shrubs and bushes which grow nowhere 
 except where there is water has been held to mark a well-defined channel of a 
 subterranean stream. 7 To constitute a well-defined and regular underground 
 stream it is not necessary that the flow should be continuous. It should, 
 however, be well known. 8 The fact that water fails to flow to a spring when 
 the water was drained from a natural opening on higher ground is not of 
 itself sufficient to show that the water flowed in a well-defined channel. 9 
 
 260. Grants of a Right to Underground Waters. When the owner of 
 land has sold or granted to another certain rights in a water-supply, he may 
 not destroy that water-supply without making himself liable for the interfer- 
 ence therewith. If a grant of water, either express or implied, has been 
 made to secure to the grantee a regular supply of water, the grantor will be 
 liable if by any interference either of well-known watercourses or by under- 
 
 1 Willis v. Perry (la.), 60 N. W. Rep. 6 Wheatley v. Baugh, 25 Pa. St. 528. 
 727. 7 Hale v. McLea, 52 Cal. 581. 
 
 2 Tampa W.-w. Co. v. Cline (Fla.), 20 8 Chase v. Silverstone, 62 Me. 175 ; 
 So. Rep. 780. Shively v. Hume, 10 Ore. 76; Ewart v. 
 
 3 27 Amer. & Eng. Ency. Law 424. Belfast P. L. Guard., L. R. 9 Ir. 172. 
 
 4 Saddler v. Lee, 66 Ga. 45; Whetstone See Meyer v. Tacoma Lt. & W. Co. 
 v. Bowser, 29 Pa. St. 60. (Wash.), 55 Pac. Rep. 601. 
 
 5 Dickinson v. Grand J. Canal Co., 7 9 Taylor v. Welch, 6 Ore. 200. 
 Exch. 282. 
 
26 1. OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 ground operations he diminishes such supply of water. A landowner who 
 has granted to a cheese-factory situated on his land the use of water conducted 
 to the factory from springs on the owner's land, and who has undertaken to 
 warrant and defend the granted premises against himself and all other persons, 
 will be held liable for withdrawing the supply from such springs. 1 
 
 The grantee is not bound to maintain the spring in the exact spot in which 
 it first existed ; and if the water was supplied to grantor from another spot, 
 it could not be said that the grantee had destroyed the spring in the sense of 
 the contract and in violation of it, as when the source has been sapped by 
 quarrying stone. * 
 
 A grant, however, of a right simply to dig and stone up a certain spring, 
 and to conduct the water through the grantor's land, with a covenant of 
 warranty, was held not to preclude the grantor from sinking another spring 
 on h4s land, although the effect of it was to render the spring granted useless, 
 provided such act was not done maliciously. In this case the parties were 
 considered in the same light as adjacent owners, and the law applicable to 
 adjoining owners was applied, which permits the neighbor to dig on his own 
 land, though the effect might be to cut off the water from the plaintiff's 
 spring by percolation. The grant was merely to the right of the spring, and 
 did not secure to him any greater rights than such as he would have had if he 
 had owned the land on which it was situated. 3 In another case, where a man 
 owned two adjoining farms, upon one of which there was a spring from which 
 pipes had been laid conducting the water to the barnyard of another farmer, 
 thus furnishing water for his stock and other domestic purposes, and the 
 common owner of the two farms sold and conveyed the former, so supplied 
 with water, by a deed conveying the land with appurtenances, but made no 
 mention of a spring or pipes, it was held that when the former owner dug a 
 well upon his farm a few feet from the spring, which resulted in lowering the 
 water of the spring below the mouth of the pipes so as to deprive the purchaser 
 of the use of the water, he might restrain the vendor from the use of the 
 well causing the injury. 4 
 
 261. Rights to Waters of Springs and Wells as between Grantor and 
 Grantee. If the grant be merely of the land so as to make the grantee the 
 ownerthereof, he has not any better rights than if he had been the original 
 proprietor of the soil, and his neighbor, even though he may be the grantor, 
 may drain the lands as he sees fit, although such act interfere with the 
 grantee's water-supply. 5 
 
 A grant of certain springs or a fountain of water has been held not to 
 
 1 Johnston Cheese Mfg. Co. v. Veghte, But see Davis v. Spalding (Mass.), 32 
 69 N. Y. 16; Chamberlain v. B. & O. R. N. E. Rep. 650. 
 
 Co. (Md.), 8 Atl. Rep. 267 [1887]. 5 Chessley v. King, 74 Me. 164; Davis 
 
 2 Chamberlain v. B. & O. R. Co. (Md.), v. Spalding, 157 Mass. 431 ; Bliss v. 
 8 Atl. Rep. 267 [1887]. Greeley, 45 N. Y. 671; Brain v. Marfell, 
 
 3 Bliss v. Greeley, 45 N. Y. 671. 41 L. T. N. S. 455; McNab v. Robertson 
 * Paine v. Chandler, 134 N. Y. 385. (Eng.), App. Cas. 129 [1896]. 
 
171 SUBTERRANEAN OR UNDERGROUND WATERS. 262. 
 
 prevent the owner from properly draining his land to make it productive, even 
 though by some unknown means the drainage of the land affects the water- 
 supply. 1 The grant of an easement to draw water from a well by a pipe laid 
 in the ground does not preclude the grantor or a subsequent purchaser from 
 digging another well or reservoir on his land, even though it destroy the form 
 of the easement by diverting the waters which formerly percolated into the 
 well. 2 The purchaser of land subject to the reservation that B. should 
 have the right to conduct water from certain springs thereon to adjoining 
 lands does not prevent the owner of the land on which the spring is located 
 from excavating so as to cut off the supply of water. 3 
 
 One who purchases a well and the right to convey water from it acquires 
 merely a right to water rising in the well, and has no cause of action against 
 one who intercepts the water before it reaches the well. 4 The grant of a well 
 has been held to pass the fee of the land occupied by the well. 5 The grant 
 of a privilege of taking water from springs gives the owner a right to take the 
 water that issues from the ground by natural forces. It does not include 
 wells from which the water does not flow to the surface. 6 
 
 262. Prescriptive Rights in Underground Waters. The use of under- 
 ground percolating waters for a great length of time does not give to the 
 person utilizing such waters a prescriptive right to receive such percolations 
 through the land of another. 7 Each owner of land has an equal and complete 
 right to the use of his land and to the water which is in it. Water combined 
 with earth or passing through it by percolation or filtration has no distinctive 
 character of ownership from the earth itself, not more than the metallic oxides 
 of which the earth is composed. A man may not know that his neighbor's 
 well is supplied by water percolating from his own soil, and 'he should not, 
 therefore, be held to have lost his rights by permitting such continued use of 
 the water. He cannot know that his neighbor's well requires any other than 
 the natural and common use of the water under the surface, nor does he know 
 whence the water comes, nor by what means it appears in one place or the 
 other, or which of the persons who afterwards opened the earth encroaches 
 upon the rights of the other. 8 No prescriptive right can arise against any 
 party unless the privilege exercised interferes in some way with the rights of 
 the party against whom the grant is presumed. In the case of a watercourse 
 the right of the riparian owner is not from the presumed grant, but is a right 
 incident to the property itself. 
 
 1 Buffum v. Harris, 5 R. I. 243. Conroe, 38 Vt. 469. 
 
 2 Davis v. Spalding, 157 Mass. 431; 7 Elster v. Springfield, 49 Ohio St. 82; 
 So. Pac. R. Co. v. Dufour (Cal.), 30 Pac. Dickinson v. Gd. Jc. Canal Co., L. R. 7 
 Rep. 783. Exch. 282; Wheelock v. Jacobs (Vt.), 40 
 
 3 Lybe's Appeal, 106 Pa. St. 626. Atl. Rep. 41 [1897]. 
 
 4 Brain v. Marfell, 41 L. T. N. S. 455. 8 Roath v. Driscoll, 20 Conn. 533 ; 
 And see Huston v. Leach, 53 Cal. 262. Frazier v. Brown, 12 Ohio St. 294; 
 
 8 Johnson v. Rayner (Mass.), 6 Gray Trustees of Delhi v. Youmans. 50 Barb. 
 107. (N. Y.) 316; Cross v. Kitts (Cal.), 22 The 
 
 6 Mixer v. Reed, 25 Vt. 254; Clark v. Reptr. 361 [1886]. 
 
263. OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 263. Pollution of Underground Waters. Although a person may exer- 
 cise his right to take from his neighbor, percolating underground waters to the 
 latter's injury and loss, yet he may not poison, pollute, or contaminate the 
 percolating waters of his own land which percolate from his soil into that of 
 the adjoining landowner. If he permit the seepage of poisoned and polluted 
 waters from his land into that of his neighbor to the injury of the latter, he 
 will be liable for the damages suffered. l Any person who collects or negligently 
 allows deleterious or dangerous substances to remain upon his land, whereby 
 the usefulness and enjoyment of his neighbor's land is destroyed, will be held 
 liable for the injury resulting. If the neighbor's useful waters be corrupted 
 either by the ordinary or extraordinary, yet not very uncommon, action of the 
 elements, he will be liable. 2 He must keep such filth and dangerous sub- 
 stances upon his own premises at his peril. 3 
 
 264. Pollution by Oil, Tar, etc., Soaking into Ground. One who stores 
 oil upon his premises will be liable if he allow it to leak from the cask or tank 
 in which it is stored and pass into the ground and pollute the stream from 
 which the plaintiff's spring is supplied; and this was held to be true even 
 though the defendants were ignorant that the oil was affecting the stream. 4 
 In this case the court said: " An owner has the right to take and appropriate 
 underground water, and thus prevent its use by another, and yet he has no 
 right to poison it, however innocently, or to contaminate it so that when it 
 reaches his neighbor's land it is in such condition as to be unfit for use either 
 by man or beast. The owner of land has the same right to the use and enjoy- 
 ment of the water that is around and through his premises as he has to use and 
 enjoy the water above ground. He is entitled to the use of what is above the 
 ground as well as that below it, and it can scarcely be insisted that he can 
 poison the atmosphere with noxious odors that reach the dwelling of his 
 neighbor to the injury of himself or family. We see no reason why he should 
 be permitted to contaminate the water that flows from his land to his neighbor, 
 producing the same results, and so escape the liabilities of the damages sus- 
 tained. Whether the water escapes one way or the other is immaterial." 5 
 Recovery has been allowed for the contamination of springs or wells by per- 
 mitting gas to escape therein, 6 and by locating and maintaining a cemetery or 
 private burial-ground. 7 
 
 The fluids from gas-works, and the gas itself, when allowed to permeate 
 
 1 27 Amer. & Eng. Ency. Law 436, and 5 Prior, Justice, in Kinnaird v. Stand- 
 many cases cited. ard Oil Co., 89 Ky. 469. 
 
 2 Woodward v. Aborn, 35 Me. 271. 6 Sherman v. Fall River I. Wks. 
 
 3 Tenant v. Goldwin. 6 Wood 311. (Mass.), 5 Allen 213; Shuter v. The City, 
 
 4 Kinnaird v. Standard Oil Co., 89 Ky. 3 Phila. (Pa.) 228; Millington v. Rich- 
 469; Carhart v. Auburn G. L. Co. (N. Y.), ards, 23 Gas J. 215. 
 
 22 Barb. 297; Brown v. Illius, 27 Conn. 7 27 Amer. & Eng. Ency. Law 438, 8 
 
 84; Millington v. Richards G. Co., 25 idem. 1281; Pensacola Gas Co. v. Pebley 
 Gas J. 215. (Fla.), 5 So. Rep. 593 [1889], gas refuse. 
 
173 SUBTERRANEAN OR UNDERGROUND WATERS. 266.. 
 
 soil to the injury of wells and springs, polluting the waters, render the owners 
 liable for the injury. 1 
 
 The fact that other causes have contributed to render the water of the well 
 impure and unfit does not prevent the recovery of damages due to the cause 
 complained of. 2 When sickness was caused by a mixture of illuminating-gas 
 and sewer-gas which had found its way into plaintiff's house through various 
 drains and sewers, the gas company was held liable if the combined gases 
 were carried to the house by the illuminating-gas, which had escaped by the 
 company's negligence. 3 
 
 265. Contamination that Amounts to a Nuisance. The percolation and 
 contamination is frequently required to be so serious as to constitute a. 
 nuisance, and the question whether it is a nuisance, and the damage therefrom 
 substantial, is for the jury. 4 This is always so where the plaintiff has suffered 
 no special damage. To establish the conducting of a lawful business a 
 nuisance, it need not be shown that it was carried on recklessly or was- 
 improperly managed. 4 
 
 266. Fouling or Contaminating the Land of Adjoining Owners. The 
 landowner is liable if he permits sewage from his house to flow into the well 
 of a neighbor. 5 In this case the court said: " The right to foul water is not 
 the same as the right to get it, and does not depend upon the same principles. 
 Prima facie every man has a right to get from his own land water which is 
 naturally found there, but it frequently happens that he cannot do this with- 
 out diminishing his neighbor's supply. In such a case the neighbor must 
 submit to the inconvenience; but no man has a right to use his own land in 
 such a way as to be a nuisance to his neighbor; and whether the nuisance is 
 effected by sending filth into his neighbor's land, or whether the nuisance is 
 effected by poisoning the air which his neighbor breathes or the water he 
 drinks, is wholly immaterial. If a man choose to poison his own well, he 
 must take care not to poison the waters which other persons have a right to 
 use as much as himself. To hold to the contrary on the ground that the 
 water is not the neighbor's property until he gets it, and that it is poisoned 
 before he gets it, would be to take an inadequate view of the subject and to 
 overlook the fact that the law of nuisances is not based exclusively upon 
 rights of property. ' ' 
 
 The ground upon which the landowner who contaminates underground 
 water is made liable is that his acts in polluting the water amount to a 
 nuisance; and in some cases the true cause of action is not based upon con- 
 
 1 Ottawa Gas Lt. Co. z/. Graham, 28 3 Hunt v. Lowell Gas Co. (Mass.), 8- 
 111. 74; Pottstown Gas Co. v. Murphy, Allen 169. 
 
 39 Pa. St. 257 ; Columbus Gas Co. v. 4 Gavigan v. Atlantic Refining Co. 
 
 Freeland, 12 Ohio St. 392; 8 Amer. & (Pa.), 40 Atl. Rep. 834 [1898]. 
 
 Eng. Ency. Law 1281, and cases cited. 5 Ballard v. Tomlinson, 29 Ch. Div. 
 
 2 Sherman v. Fall River Co. (Mass.), 5 125. 
 Allen 213. 
 
26/. OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 tarnination of underground percolating waters, but upon the negligence of the 
 owner in allowing his impure sewage or polluted matter to escape from his 
 premises to those of his neighbor, and the circumstance that it reached there 
 by underground percolations, instead of by a surface stream or conveyance of 
 the water, is quite immaterial. The mode of transmission is unimportant. 1 
 
 267. Negligence an Element in Determining Liability for Fouling Sub- 
 terranean Waters. There are cases to the contrary in which courts have held 
 that a person was not liable for the contamination of underground waters, 
 but it cannot be denied that they are exceptions to the general rule. 2 While 
 the law upon this question appears to be well settled that if a landowner 
 permit a deleterious substance to escape into the ground to the injury of his 
 neighbor's well or spring, he is liable therefor, yet it would appear to the 
 author that there must be shown some element of negligence upon the part 
 of the landowner in order to hold him for the damages suffered by his 
 neighbor. It is hard to distinguish between a damage conveyed to one's 
 neighbor by the medium of the water from an injury conveyed by the medium 
 of air or other common phenomena of nature. If the landowner store casks 
 of oil in his warehouse and by accident they spring leaks permeating the 
 soil and contaminating the waters of his neighbor, it seems he is liable for the 
 injury resulting therefrom. 3 No question of negligence seems to have been 
 raised in the case. If, however, by accident the same casks of oil had taken 
 fire and destroyed the neighbor's buildings, his liability for the injury suffered 
 by his neighbor would depend upon whether he had exercised ordinary care 
 and had not been negligent. To distinguish between the two cases, the 
 ground of liability, it seems to the author, must be that of negligence, and if 
 the owner of the oil that contaminated the spring had exercised due and 
 proper care, it is doubtful if he could have been held liable for the damages 
 to his neighbor. 
 
 The English and Massachusetts courts seem to require that negligence 
 shall be shown. If the defendant has exercised due and proper care and is 
 ignorant of the injury caused, it will defeat a right of action. So where the 
 defendant had dug a well and drawn water from a river after it formed part 
 of a stream, thus preventing the plaintiff from working his mill which was 
 situated on the river, it was held that an action would lie. "But," said 
 justice Pollock, "if it appear that the company was ignorant and could not 
 by any degree of care have ascertained before digging the well that it would 
 have the effect of diverting the water, and when they discovered the effect of 
 digging the well they could not have repaired the mischief, it might raise the 
 question whether the cause was maintainable or not." 
 
 1 Ballard v. Tomlinson, 29 Ch. Div. 115. 8 Kinnaird v. Standard Oil Co., 89 Ky. 
 And see note by Hon. Edmond H. Bennett 469. 
 
 in 24 Amer. Law Reg. 634. * Dickinson v. Gd. June. C. Co., L. R. 
 
 2 See 27 Amer. & Eng. Ency. Law 437, 7 Exch. 282. 
 note. 
 
175 SUBTERRANEAN OR UNDERGROUND WATERS. 268. 
 
 The location and maintenance of cemeteries and burial-grounds are a 
 frequent cause complained of by owners of wells and springs, and reasonably 
 so. The use of such places of burial is not necessarily a nuisance, and it will 
 usually be enjoined only upon clear proof of injury. 1 
 
 One of the most frequent sources of contamination of waters is that by 
 cesspools, sewage, and household wastes. If one surfer filthy water from 
 a vault to percolate or filter through the soil to the injury of an adjoining 
 owner's well and cellar, and it is done habitually and within the knowledge 
 of the owner of the vault, whether it pass above ground or below, it is an 
 actionable tort. The law requires under such circumstances that the owner 
 shall exercise such reasonable precautions as effectually to exclude the filth 
 from his neighbor's land, and not to do so is of itself negligence. 2 If the 
 pollution had been the result of a sudden and unavoidable accident which 
 could not have been foreseen, or guarded against by due care, doubtless the 
 owner of the vault would not have been liable in damages, but the percolations 
 appeared to have been constant and their existence to have been known to the 
 defendant. 3 
 
 If filth percolates from sewers by reason of their faulty construction and 
 finds its way into the cellars of adjoining premises, the owner of the land is 
 liable even when he is the owner of the premises into which the filth perco- 
 lates, and the party complaining is his own tenant. 4 
 
 A court will enjoin the erection and completion of a privy which in all 
 probability will contaminate the well of a neighbor. Such erections are con- 
 sidered prima facie nuisances, and although necessary and indispensable in 
 connection with the use of property for habitation, yet if built and allowed to 
 remain in such a condition as to annoy others in the proper enjoyment of 
 their property to the corruption and pollution of air or water, they are 
 nuisances in fact. 5 The fact that a neighbor appropriates polluted water by 
 artificial means, as by pumping, is immaterial where the right to the water 
 exists. 6 
 
 268, If Acts Amount to Nuisance, There are cases in which the pollut- 
 ing or poisoning of underground waters has been held not to be a ground of 
 action, and these cases, as before stated, may be reconciled by the explanation 
 that the use to which the property has been put and which has caused the 
 injury was a natural and proper one, and that the owner was free from negli- 
 gence. In many cases the question is not one of property rights, but whether 
 or not the defendant is guilty of a nuisance. Thus in a case where the owner 
 
 1 Kingsbury v. Flowers, 65 Ala. 479; * Alston v. Grant, 3 El. & Bl. 128. 
 Clark v. Lawrence (N. C.), 6 Jones Eq. And see 27 Amer. & Eng. Ency. Law 439. 
 53 ; Greencastle v. Hazelett, 23 Ind. 186. 5 Wahle v. Reinbach, 76 111. 322; 
 
 2 Ball v. Nye, 99 Mass. 582. DeGive v. Seltzer, 64 Ga. 423; Ross v. 
 9 See Baird v. Williamson, 15 C. B. N. Butler, 19 N. J. Eq. 294. 
 
 S. 376; Fletcher v. Rylands, L. R. 3 H. 6 Ballard v. Tomlinson, 29 Ch. Div. 
 
 L. Cas. 330. US- 
 
269. OPERATIONS PRELIMINARY TO CONSTRUCTION. 1 76 
 
 of a gas-works has negligently and improperly placed upon the surface of his 
 land and along the line of his neighbor's land and in his land, large quantities 
 of coal-tar, gas-lime, and other offensive and noxious materials, which are 
 washed by the surface-water into the well, and the same soaked and per- 
 meated into the ground and into the soil adjoining the well, whose waters are 
 corrupted, it was held that the negligence in leaving such noxious substances 
 on the land where the rain could wash them along the surface of the ground 
 into the neighbor's well was actionable, and that it made no difference 
 whether the substances were carried along the surface of the ground or were 
 soaked into the soil and by means of water diffused according to natural 
 laws. But the court held further that where* such noxious substances had 
 been buried within the soil, and had affected the subterranean currents of 
 water by which the well was supplied, and had corrupted the water, the party 
 placing the substances on or within his soil was not liable unless he acted 
 maliciously. 1 
 
 269. Negligence may Fix Liability, In such a case, if negligence can 
 be imputed to the owner of property, or the said owner had knowledge as to 
 the existence of subterranean watercourses, there is little doubt but that he 
 would be liable for the injuries; but when the business conducted upon one's 
 land is legitimate and conducted with care and skill, it is sometimes held that 
 there can be no liability if such subterranean waters become contaminated. 
 The distinction is sometimes made between a contamination by soaking or 
 percolation. Thus where an adjoining owner has dug a cesspool within 
 fourteen yards of the plaintiff's well, so near that the liquid of the cesspool 
 percolated through and contaminated the well, it was held that the defendant's 
 use of the cesspool should be restrained. 2 It will be observed, however, that 
 the contamination was by soaking or percolating of the sewage matter from 
 the cesspool, and was not from the contamination of subterranean streams. 
 
 Justice Mitchell, in a case involving the question of pollution of under- 
 ground waters, has said: 3 " The dividing line; between the right to use one's 
 own and a duty not to injure another's is one of great nicety and importance, 
 and frequently a difficult one. The Pennsylvania decisions have endeavored 
 with unusual care to preserve the substance of both rights so far as their 
 sometimes inevitable conflict may permit. With regard to the use and 
 control of flowing water and of watercourses, 4 a case definitely settled 
 the rule that, for unavoidable damages to one's land in the lawful use 
 of one's own, no action can be maintained. No other result seems possible 
 without restricting the use derogating from the full enjoyment and diminish- 
 ing the value of property. The rule does not go beyond proper use and 
 unavoidable damage. Every man has a right to the natural use and enjoy- 
 
 1 Brown v. Illius, 27 Conn. 84. 3 Collins v. Chartiers Val. Gas Co., 131 
 
 2 Womersley v. Church, 17 L. T. N. S. Penn. St. 143. 
 
 190; Norton v. Scholefield, 19 M. & W. * Pennsylvania Coal Co. v. Sanderson, 
 
 665. H3 Pa. St. 126. 
 
177 SUBTERRANEAN OR UNDERGROUND WATERS. 271. 
 
 ment of his own property, and if while lawfully in such use and enjoyment, 
 without negligence or malice on his part, unavoidable loss occurs to his 
 neighbor, it is damnum absque injuria. This is the rule as to surface-streams, 
 but it is contended that as to subterranean streams, or at least percolation of 
 hidden streams, the owner was not bound to pay any attention to the effect 
 of his operations within his own land upon the land of others. . . . The use 
 which inflicts the damage must be natural, proper, and free from negligence, 
 and the damage unavoidable. On the question of negligence the question 
 of knowledge is always important and may be conclusive. Hence the 
 practical inquiry is, first, whether the damage was necessary and unavoidable; 
 secondly, if not, was it sufficiently obvious to have been foreseen, and also to 
 have been prevented by reasonable care and expenditure ? ' ' 
 
 This was a case in which the defendant had drilled a well to a great depth 
 for oil or gas, and with knowledge that salt water would probably rise and 
 would destroy fresh-water springs and wells in the vicinity. It seems that 
 there was no doubt but that precaution could have been taken to prevent this, 
 and it was held that the absence of such care and regard for the rights of 
 others as a prudent and just man would and should have taken in the same 
 situation was negligence. If it were shown that the injury was plainly to 
 be anticipated, and easily prevented with reasonable care and expense, it 
 brought him within the exception of all cases which would excuse him from 
 liability. 1 
 
 If an owner of land by some unlawful or unreasonable use or sufferance 
 allows water to collect upon his land and by percolation through the soil it 
 reaches his neighbor's property and does harm, the former is liable for the 
 damages sustained by the latter. a If the use were reasonable and lawful, it 
 is doubtful if there would be any liability. 
 
 270. Injunction will Issue to Prevent Fouling of Ground-waters. To 
 prevent injury by the percolation of contaminating matter into the ground, a 
 court of equity will grant an injunction. 3 A perpetual injunction was granted 
 to prevent the flow of noxious and unfit refuse from a manufactory onto land, 
 and which percolated into defendant's coal-mines. 4 
 
 271. Motive an Element in the Destruction of Underground Waters. 
 In some jurisdictions the courts have held that the intent or motive prompt- 
 ing the party in his diversion or interference of underground waters was an 
 important factor in determining the liability for the act, though not a con- 
 trolling element. 5 If the motive which prompts a property owner to interfere 
 or destroy the spring or well of his neighbor be one of pure maliciousness, 
 
 1 Collins v. Chartiers Val. Gas Co., 131 2 Quinn v. Chicago, etc., Ry. Co., 63 
 
 Pa. St. 143. And see Pa. Coal Co. v. la. 510 [1884]. 
 
 Sanderson, 113 Pa. St. 126; Wheatley v. 3 27 Amer. & Eng. Ency. Law 438. 
 
 Baugh, 25 Pa. St. 528; Acton v. Blundell, 4 Turner v. Mirfield, 34 Beav. 390. 
 
 12 M. & W. 324; Steele v. Todd (Pa. 6 27 Amer. & Eng. Ency. Law 433. 
 
 Sup.), 27 Atl. Rep. 942. 
 
2/2. OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 the courts have sometimes considered this motive, and have held the party 
 liable for the damages resulting. It has been held that law would not permit 
 a man to deprive another of a well, spring, or stream of water for the mere 
 gratification of malice. 1 
 
 It has been held to present a very different question when one made 
 excavations on his land with the express purpose of diverting the water from 
 his neighbor's spring or to his own well, knowing that this would be a natural 
 result. 2 Where the owner of land on which springs are located obstructed 
 their flow maliciously for the purpose of affecting the supply of one obtaining 
 water therefrom, to compel the purchase of the springs, such obstruction was 
 enjoined. 3 
 
 It must be confessed that a law which requires the court to inquire into 
 the motive of the person in the operations and manipulations of his own land 
 is quite contrary to the general purpose of the law. The law generally deals 
 with the outward acts of the person, and when the use which a landowner 
 makes of his property is lawful in itself, the law will not take cognizance of 
 the motive which prompts that use, even though it results in damage to 
 another. The exercise of the legal right in one's own property should not be 
 affected by the motive which controls it. The weight of authority is in favor 
 of these general principles of the law. 4 The refusal or discontinuance of a 
 favor can give no cause of action. 5 
 
 As has been said in Pennsylvania, malicious motives make a bad act 
 worse, but they cannot make an act which in its own essence is lawful a 
 wrongful act. 6 Attention should not be given to the alleged motives of 
 persons. Their motives are immaterial; the question is only as to their 
 rights. 7 If an act be lawful in itself, resulting in injury to another, whatever 
 may have been the motive with which it was done is in law a matter of 
 indifference. 8 
 
 272. Percolations which are Artificial or Enforced. Percolations which 
 are natural should be distinguished from those which are caused artificially, 
 as by the collection and storage of fluids upon one's land. If a person 
 make a reservoir, pond, or canal upon his land, and bring quantities of 
 water thereon, which by percolation and permeation of the soil injures his 
 neighbor, he is held liable for the damages resulting. 9 A canal constructed 
 by authority of Parliament in such a manner as to leak into and cause injury 
 to a mill has been held a sufficient cause to render the company owning and 
 operating the canal liable for damages if guilty of negligence, and that the 
 
 1 Wheatlcy v. Baugh, 25 Pa. St. 528; Mass. I. 
 
 Wyandotte Club Co. v. Sells (Com. PL), 3 6 Jenkins v. Fowler, 24 Pa. St. 308. 
 
 Ohio N. P. 210. 7 Porter v. Durham, 74 N. C. 767. 
 
 2 Swett v. Cutts, 50 N. H. 439. 8 Frazier v. Brown, 12 Ohio St. 294; 
 
 3 Springfield Water-works Co. v. Jen- 27 Amer. & Eng. Ency. Law 435, and 
 kins, I Mo. App. Reptr. 699. cases cited. 
 
 * 27 Amer. & Eng. Ency. Law 434. 9 Wilson v. New Bedford, 108 Mass. 
 
 5 Mahan v. Brown, 13 Wend, 261. And 261 [1871]. 
 see Old Colony River Co. i>. Miller, 125 
 
179 SUBTERRANEAN OR UNDERGROUND WATERS. 273. 
 
 canal company was guilty of negligence as it might have prevented the 
 damage. The same doctrine has been applied in Massachusetts, 1 where a 
 city was authorized to take water from the Charles River for a water-supply 
 by a statute which also provided that the town should be liable to any person 
 injured by such taking. The city constructed a water-gallery on land near 
 the river, which drew off by percolation the waters of the river through the 
 natural soil between the gallery and the river. The city was held liable for 
 injury by such taking. The court said that a different question was presented 
 where the owner of land constructs his well or other structure in such a 
 manner as to create an artificial underground current of water from a running 
 stream, thus withdrawing water from the stream into his own land, under a 
 claim of right that he is entitled to the water that is found in or coming to 
 his land. 2 It is immaterial, it seems, as to how the city took the water, 
 whether by pipes or by percolation through an artificial or natural embank- 
 ment between the gallery and the river. 3 
 
 A conveyance of land for the purpose of erecting a reservoir thereon is no 
 bar to the recovery of damages by the grantor for injuries resulting to his 
 adjoining land from percolations through the soil caused by the pressure of 
 the water in the reservoir. 4 
 
 It has frequently been held that if one collects and stores large quantities- 
 of water, as in a reservoir, and permits it to escape, he is liable for the conse- 
 quences of the damage to others, however skillfully and carefully the accumu- 
 lation was made. 5 
 
 The owner of a quarry has been held not liable to another quarryman for 
 the cost of pumping water from his quarry which found its way there from 
 another quarry through the defendant's quarry. 6 
 
 Property owners have been held liable for the wet, unwholesome, and 
 unhealthful condition of a dwelling which was caused by packing against a 
 wall large quantities of soil, coal, and limestone refuse through which the 
 rain-water oozed and percolated through the wall and into the house. 7 
 
 When noxious matter from defendant's factory was conveyed by a sewer 
 into a hollow or ravine, and ran down on plaintiff's land, rendering it unfit 
 for occupancy or pasture purposes, it is immaterial whether the ravine con- 
 tained a watercourse, or whether the noxious matter was carried down the 
 ravine by a violent rain-storm, or by water in the ravine. 8 
 
 1 JEtna. Mills v. Brookline, 127 Mass. Cas. 330; Nichols z/. Marsland, L. R. 10 
 69. Exch. 255; Quinn v. Chicago, B. & Q. 
 
 2 See also ^Etna Mills v. Waltham, 126 Ry. Co., 63 Iowa 510 [1884]. See also 
 Mass. 422; Bailey v. Woburn, 126 Mass. Show v. Whitehead, 27 Ch. Div. 588; 
 416; Wilson v. New Bedford, 108 Mass. Humphries v. Cousdns, 2 C. P. Div. 239. 
 261 [1871]; Heacock v. State (N.Y.), n Ulmer v. Farnsworth (Me.), 15 Atl. 
 N. E. Rep. 638 [1887] ; Smith v. Brooklyn, Rep. 65 [1888]. 
 
 46 N.Y. Supp. 141. 7 Hurdman v. N. E. R. Co., 3 C. P. 
 
 3 Cowdrey v. Woburn, 136 Mass. 409. Div. 168. See also Broder v. Saillard, 2 
 * Wilson v. New Bedford, 108 Mass. Ch. Div. 692. 
 
 261 [1871]. 8 Thomas v. Concordia Cannery Co., 
 
 6 Rylands v. Fletcher, L. R. 3 H. L. 68 Mo. App. 350. 
 
274- OPERATIONS PRELIMINARY TO CONSTRUCTION. iSo 
 
 Percolating waters belong to the owner of the land as much as the land 
 itself or the rocks and stones in it; therefore the landowner may dig a large 
 well and draw up the water by machinery or otherwise in such quantities as to 
 supply aqueducts for a large neighborhood. He may thus take the water 
 which would otherwise pass with natural percolation into his neighbor's land, 
 and draw off the water which may come by natural percolation from his 
 neighbor's land; and the neighbor may, by a wall or other obstruction, retain 
 the water which is upon his own land and prevent percolating waters from 
 going from or coming into the soil. The owner may not, however, build 
 embankments or raise a dam or construct a reservoir so as to cause an 
 unnatural artificial pressure of the water through the soil and by its action 
 flood his neighbor's structure (cellar). 1 
 
 If quantities of water are collected in a sewer, the owner of the sewer 
 must see that it is properly constructed and kept in repair, or be liable in 
 damages for waters that escape and, percolating through the ground, cause 
 injury to other property owners, as by injury to the foundations of structures. 2 
 It has even been held that when a landowner made excavations on his land 
 and let in the sea, which undermined and injured the adjoining land, he was 
 held liable for the injury to the well by the percolating salt waters. 3 
 
 274. Negligence to Accumulate Waters under Pressure, and Permit to 
 Escape. This doctrine of the law with regard to artificial and enforced per- 
 colations has been qualified, as in the case of pollution by percolating waters, 
 in many states by imposing the requirement that, in order to make the 
 defendant liable, it must be shown that he has failed to exercise ordinary care 
 and skill, i.e., must have been guilty of negligence. 4 
 
 It has been held to be negligence for one to collect a large body of water 
 into a limited space surrounded with a porous and gravelly soil without taking 
 adequate precautions to confine it. 5 
 
 The owner of a reservoir who shuts up the overflow-pipe, causing the 
 water to overflow and, by means of a subterranean channel, run into the well 
 of another, is guilty of a trespass. 6 
 
 One who drills artesian wells on his lands and carries the water through a 
 ditch for irrigating purposes, and allows the water to percolate through the 
 ditch into his neighbor's land to his injury, is liable for the damages sus- 
 tained. 7 The owner of a ditch is liable for damage caused by seepage oi 
 water from it. 
 
 1 Wilson v. New Bedford, 108 Mass. * 27 Amer. & Eng. Ency. Law 443, 
 
 265; Fuller v. Chicopee Mfg. Co. (Mass.), many cases cited; semble Reed v. State 
 
 16 Gray 46. And see Gorham v. Cross, (N. Y.), 15 N. E. Rep. 735 [1888]. 
 
 125 Mass. 232; But j^cases note 2, p. 179. 5 Reed v. State, 108 N. Y. 407; Schuster 
 
 * Toledo v. Grasser, 12 Ohio C. C. 520; v. Albrecht (Wis.), 73 N. W. Rep. 990. 
 
 Comanche v. Zettlernoyer (Tex.), 40 See Jutte v. Hughes, 67 N. Y. 267; Mairs 
 
 S. W. Rep. 641. And see Cummings v. v. Manh. R. E. Assn., 89 N. Y. 506; 
 
 Toledo, 12 Ohio C. C. 650; Hitchins v. Clements v. State, 105 N. Y. 621. 
 
 Frostburg (Md.), ii Atl. Rep. 826 [1888]. 6 Odell v. Nyack Water-works Co. 
 
 But see Kennison v. Beverly, 146 Mass. 467. (Sup.), 36 N. Y. Supp. 206. 
 
 3 Mears v. Dole, 135 Mass. 508 [1883] . 7 Parker v. Larsen, 86 Cal. 236; Shields 
 
l8l SUBTERRANEAN OR UNDERGROUND WATERS. 2/5- 
 
 The doctrine of contributory negligence does not apply in case of injury 
 to land from the escape of water from a ditch, the owner of the ditch knowing 
 of the defects therein and being able to prevent the injury. 1 If the collec- 
 tion, accumulation, and storage are in the first instance wrongful, the 
 defendant has been held liable, although guilty of no negligence. 2 
 
 275. Diversion and Obstruction of Underground Currents. A land- 
 owner may not divert a well-defined underground stream of water which has 
 a well-defined known channel. The landowner is entitled to take all the 
 percolating waters in his land, but he may not do so if he cannot get at the 
 underground water without diverting a well-defined subterranean stream. 3 A 
 landowner may not dig a well near to the banks of a pond so as to create an 
 artificial underground current of water. The burden of proof is upon the 
 person who alleges the diversion of the waters of the pond, and he may 
 recover damages only to the amount which he is able to prove. 4 Authority 
 to take and hold certain waters and water-rights gives no right to dig wells 
 so as to intercept percolating waters flowing to, or to draw off waters from, 
 plaintiff's artificial pond, which he had the right to maintain, where the 
 land upon which defendant dug its well was taken for a pumping-station and 
 its appurtenances, and it did not thereby appear that the water to be pumped 
 was to come from plaintiff's land. 5 
 
 These cases are to be distinguished from those which have been treated 
 hereinbefore, as in the case where one digs a ditch or works a quarry in 
 the vicinity of a spring and thus intercepts the underground sources of said 
 spring, and for which act the landowner is not liable. 6 The distinction to be 
 made is whether the excavations draw water from the original underground 
 sources by which the spring is supplied, or whether they draw the water 
 directly from the spring or creek flowing therefrom. 
 
 A city which constructs a conduit lower than the surrounding territory, 
 the soil of which is such as to admit of ready percolation of water, with 
 knowledge that it will draw water from the surrounding territory to such 
 conduit, is liable for damages caused by the failure of a brook and pond in 
 such territory which have been in existence for more than fifty years. 7 This 
 is so even though the destruction is caused by the diversion of the water before 
 it reaches the stream. 8 
 
 v. Orr Ex. Ditch Co. (Nev.), 47 Pac. Rep. Rep. 574. 
 
 194; Schuster v. Albrecht (Wis.), 73 6 Ellis v. Duncan (N. Y.), 21 Barb. 230; 
 
 N. W. Rep. 990; Reed v. State (N. Y.), Goodale v. Tuttle, 29 N. Y. 466. 
 
 15 N. E. Rep. 735 [1888]. 7 Smith v. Brooklyn, 18 App. Div. 340, 
 
 1 Shields v. Orr Extension Ditch Co. 46 N. Y. Supp. 141, citing Chasemore 
 
 (Nev.), 47 Pac. Rep. 194. v. Richards, 7 H. L. Cas. 349; Acton v. 
 
 a Frye v. Moor, 53 Me. 583. Blundell, 12 Mees. & W. 324, 350; 
 
 8 Chasemore v. Richards, 7 H. L. Cas. Wheatley v. Baugh, 25 Pa. 528; Frazicr 
 
 349; McClellan v. Hurdle, 3 Col. App. v. Brown, 12 Ohio 294; Bassett v. Salis- 
 
 430; Gd. June. C. Co. v. Shugar, L. R. bury Mfg. Co., 43 N. H.^9: Swett v. 
 
 6 Ch 487. Cutts, 50 N. H. 445. 
 
 4 Emporia v. Soden, 25 Kan. 588. 8 Smith v. Brooklyn, 18 App. Div. 340. 
 
 5 Hollingsworth & V. Co. v. Fox- But see Dickinson v. Grand Junction 
 borough W. S. Dist. (Mass.), 42 N. E. Canal Co., 7 Exch. 282. 
 
CHAPTER XV. 
 
 OIL AND GAS. OWNERSHIP, AND APPROPRIATION OF OIL AND 
 
 GAS. 
 
 281. Oil and Gas Compared to Percolating Water. The author has 
 given a good deal of space and attention to the subject of underground waters 
 for the reason that the law as set forth in those sections devoted to percolat- 
 ing water applies almost without qualification to oil and gas. In the eyes of 
 the law oil, gas, and water are minerals, and while in place are part of the 
 land itself. They belong to the owner of the land, and are a part of it so long 
 as they are on or in it and are under his control ; but when they escape and 
 go on to another's land or come under another's control the title of the 
 former owner is gone. 1 
 
 Whether they percolate through the rock or exist in pools or deposits, 
 they form a part of that tract of real estate in which they tarry for the time 
 being; and when they leave one tract and enter another, they become a part 
 of the realty of the latter. 2 
 
 What has been said of percolating waters can be applied in every case 
 where the subject of ownership of oil and gas is at issue; and what has been 
 said in regard to the polluting of waters would doubtless apply with equal 
 force to oil or gas, the only difference probably being that the damages 
 suffered would be far less in the case of oil and gas, the natural purity not 
 being so essential as in the case of water. 
 
 282. Nature and Character of, Natural Gas. In connection with other 
 carbonaceous deposits, such as coal and petroleum, there is often found 
 inflammable gas. When these gases escape by means of fissures or seams, or 
 pipes sunk into the earth, they may be collected and burned for heating or 
 illuminating purposes, and are designated by the term " natural gas." This 
 gas is a mineral, and is subject to the same laws that govern ordinary 
 minerals, with such qualifications as are necessary by reason of its nature and 
 physical properties. It is governed by rules analogous to those governing 
 water percolating beneath the surface. Water, oil, and gas are sometimes 
 
 1 Westmoreland & C. Nat. Gas Co. v. 55 Pa. St. 164. 
 
 DeWitt, 130 Pa. St. 235; Keir v. Peter- 2 Kelley v. Ohio Oil Co., 57 Ohio St. 
 
 son, 41 Pa. St. 362; Brown v. Vander- 317 [1897], 
 grift, 80 Pa. St. 147; Dark v. Johnson, 
 
 182 
 
1 83 OWNERSHIP, AND APPROPRIATION OF OIL AND GAS. 283. 
 
 placed in a class by themselves, and have been denominated as minerals/mz 
 natures. l 
 
 Natural gas is not subject to absolute ownership. Like percolating water, 
 it belongs to the owner of the land and forms a part of it so long as it is in 
 the land and subject to his control; but when it escapes and goes into other 
 land or comes under the control of another, the title changes. Possession of 
 the land is not necessarily possession of the gas. If an adjoining owner drill 
 a well and draw from his neighbor's land the gas so that it comes under his 
 control, it is no longer his neighbor's, but belongs to him. 
 
 The owner of land which contains oil or gas has the same rights and may 
 employ the same methods to obtain control of such oil or gas as permeates 
 his soil, or to induce it to flow therein from the langl of his neighbor as he 
 has in percolating water. The courts have refused to enjoin the landowner 
 from permitting gas to escape on his premises and go to waste where no other 
 injury is done or shown than the depletion of the gas-basin in which the land 
 of the parties is situated. 2 The drilling of wells by each owner of adjoining 
 oil lands along the division-line, so that each may obtain the amount of oil 
 contained in his lands, affords ample remedy to prevent one operator from 
 obtaining more than his share of oil. 3 
 
 283. Gas and Oil in Grants of Mineral Rights. Oil and gas, being 
 minerals, form part of the land when in place, and are a part of the realty. 
 Whenever a conveyance is made of them it is in effect a grant of a part of the 
 corpus of the estate, and it should be effected in the same manner and by the 
 same ceremonies as real property is conveyed. 4 
 
 Petroleum, rock, or carbon oil has been held not to include natural gas,* 
 and whether or not the words "other valuable volatile substances" includes 
 natural gas is a question for the jury, as the words have no well-defined 
 
 meaning. 6 
 
 A conveyance of " mines and minerals" does not embrace everything in 
 the mineral kingdom as distinguished from what belongs to the animal and 
 vegetable kingdoms. 7 Petroleum is so much a mineral in character that the 
 lands from which it is obtained have been held to be mining lands under an 
 act of the state of Pennsylvania. 8 It is a mineral product within the revenue 
 law. 9 Yet the ordinary meaning of the word " mineral " may overcome the 
 technical meaning when it is the evident intention of the parties not to include 
 petroleum in a reservation of the minerals in a deed. 10 
 
 1 16 Amer. & Eng. Ency. Law 221. 925, 6 All. Rep. 74 [1886]. 
 
 2 Hague v. Wheeler, 157 Pa. St. 524. 6 Ford v. Buchanan, in Pa. St. 31. 
 
 27 Atl. Rep. 714. 7 Hartwell v. Camman, 10 N. J. Eq. 
 
 3 Kelly v. Ohio Oil Co., 57 Ohio St. 128. 
 
 3I - 8 Gill v. Weston, no Pa. St. 313. 
 
 'Stoughton's Appeal, 88 Pa. St. 198; 9 Thompson v. Noble, Pittsb. (Pa.) 
 
 Barker v. Dale, 3 Pittsb. (Pa.) 190. But 201: u Min. Rep 137. . 
 see Willetts v. Brown (N. Y.), 42 Hun 10 Dunham v. Kirkpatnck, 101 Pa. St. 
 
 140. 43- 
 
 5 Truby v. Palmer (Pa.), 4 Cent. Rep. 
 
284. OPERATIONS PRELIMINARY TO CONSTRUCTION. 184 
 
 From the nature of gas and gas operations, the grant of gas-well rights is 
 necessarily exclusive. A lease of the land for the express and sole purpose of 
 mining and taking carbon oil therefrom at a fixed royalty has been held to 
 permit the tenant to appropriate the gas which escaped from the oil-well by 
 its own force. The court argued that, as it was necessary to keep ,the well 
 open in order to obtain the oil, and as the gas escaped of its own natural 
 force into the air, the tenant was entitled to control and appropriate the gas, 
 though he would not be permitted probably to pump it if it required to be 
 pumped. 1 
 
 Natural gas has been held not to be " heat," nor can a company incor- 
 porated to supply " heat " furnish natural gas. 2 It is a fuel, 3 and as much an 
 article of commerce as iron ore, coal, petroleum, or any other of the like 
 products of the earth. A statute forbidding its transportation from the state 
 is void, for it is in conflict with the Constitution of the United States, which 
 provides that the regulation of interstate commerce shall be in Congress. 4 
 
 In an insurance policy which excepted "loss or damage by explosion, 
 except from explosion by gas, " the word was held not to include an inflam- 
 mable and explosive vapor evolved in the process of extracting oil from 
 shoddy. 5 
 
 A grant to sink test-wells for oil and to take all oil raised, reserving one- 
 third to the grantor, with a condition that if operations were abandoned all 
 property rights should revert to the grantor, was held to create an incorporeal 
 hereditament a profit a prendre. 6 
 
 284. Rights Incident to the Operation of Gas- and Oil-wells. An inter- 
 esting case of trespass and the matter of rights of way arose in the case where 
 the owners of a coal-mine sought to enjoin the owners of the surface of the 
 ground from boring a gas-well through their strata of coal, on the ground 
 that it was a trespass attended with great dangers to the lives of the miners 
 and the property of the mine-owners, and the fact that the gas could not be 
 controlled. At first the court denied the injunction upon the ground that 
 the act of the surface owner would be a mere trespass for which an adequate 
 remedy was offered in an action at law. On the following day the court 
 reversed its former ruling, placed its decision principally upon the probable 
 danger of driving a gas-well through a mine, although it was the court's 
 opinion that it would be some day possible to dig such a well in such a place. 
 The court also held that the surface owner had no right of way of necessity 
 through the vein of coal to his land beneath it, a reservation of such a way 
 not having been made. 7 
 
 1 Wood Co. Pet. Co. v. West Va. Trans. Philadelphia Co., 118 Pa. St. 468. 
 
 Co., 28 West Va. 210. 5 Stanley v. Weston Ins. Co., L. R. 3 
 
 2 Emerson v. Com., 108 Pa. St. 126. Ex. 71. 
 
 'Citizens Gas, etc., Min. Co. v. El- 6 Funk v. Haldeman, 53 Pa. St. 243. 
 
 wood, 114 Ind. 338. 7 Jefferson I. Wks. v. Gill Bros., 14 W. 
 
 4 State v. Indiana, etc., Gas, Oil & L. Bull. 2. And see 30 Cent. Law Jour. 
 
 Min. Co., 120 Ind. 579; Carothers v. 503. In the matter cf horizontal divi- 
 
1 85 OWNERSHIP, AND APPROPRIATION OF OIL AND GAS. 286. 
 
 A later case in the United States courts held that the drilling of an oil- or 
 gas-well through a part of a coal-mine from which all the coal has been 
 extracted except what is necessary for the props does not by its mere physical 
 damage to the mine, or its effect as an obstruction, threaten such an injury 
 to one owning the coal and the right to mine it as will warrant the issuance 
 of a preliminary injunction; nor will an injunction issue to restrain interfer- 
 ence with certain deep-lying veins, where on the affidavits it appears doubtful 
 whether those veins extend under the tract. 1 
 
 The owner of mineral land has a right to take away the whole of the 
 minerals in his land, for such is the natural course of the user of such land, 
 and if, in the course of such user, water accumulates on his land, either on 
 the surface or under ground, and then passes off, by the operation of the laws 
 of nature, into the ground of his neighbor, his neighbor has no legal cause 
 of complaint; but where one of the two adjoining mine-owners conducts 
 into his neighbor's mine water which would not otherwise go there, or ca"uses 
 it to go there at different times and in greater quantities than it would go 
 there naturally, he commits a legal wrong. 2 
 
 If a contractor undertake to drill a gas-well to a certain depth and of a 
 certain size, he must comply literally with the contract even though no gas 
 was found, and even though a well of smaller size is just as effective in deter- 
 mining that no gas is to be found at that depth. 3 
 
 When a company has leased and is using natural-gas wells, it may not be 
 interfered with by the lessor if such interference is likely to result in irrepa- 
 rable injury, and the lessee may have an injunction to prevent such interfer- 
 ence. 4 
 
 It has been held contributory negligence to carry a lighted lantern near 
 an oil-well where the escaping gas could be smelled and heard. 5 
 
 285. Gas Companies, their Incorporation, Organization, and Control, 
 Gas companies are subject to the same control and restraint generally as are 
 water companies. They are quasi-public institutions and derive the power to 
 occupy streets, to furnish gas to the public, and to exercise other special 
 privileges, from the legislature either directly or through the municipal cor- 
 poration. By reason of such concessions the companies must serve the public 
 without discrimination, and must adopt reasonable rules and regulations. In 
 fact what has been said of water companies will apply almost without quali- 
 fication to gas companies. 
 
 286, Ownership of Minerals and Metals in Land. The laws pertaining 
 to the baser metals and minerals are based upon the common law that applies 
 
 sions land, see I Amer. Law Reg. (N. S.) St. 19. And see 30 Cent. Law Jour. 503. 
 
 577 [1862!, and cases cited. * Citizens' Nat. Gas. Co. v. Shenango 
 
 'Rend v. Venture Oil Co. (Cir. Ct.). Nat. Gas Co. (Pa.), 20 All. Rep. 947 
 
 48 Fed. Rep. 248. [iSqo]. 
 
 2 Lord v. Carbon Mfg. Co., 42 N. J. 5 McClafferty v. Fisher (Pa.), 2 All. 
 
 Eq. 157 [1886], Rep. 610 [1885]. 
 
 3 Gillespie Tool Co. v. Wilson, 123 Pa. 
 
286. OPERATIONS PRELIMINARY TO CONSTRUCTION. l86 
 
 o property in land. They comprise the mining of coal, iron, and other ores, 
 clay, sulphates, and phosphates, and the quarrying of stone whether for build- 
 ing or manufacturing purposes. These belong strictly to the owner of the 
 land unless they have been separated and granted away by the owner or his 
 grantors. His rights in them will be protected by the courts, and if the acts 
 complained of are irremediable and destroy the substance of the property, 
 as in the case of extracting ores, an injunction will issue in order that the 
 property may be preserved from destruction during such time as may be 
 necessary to try the title at law. 1 
 
 The laws pertaining to the mining of precious metals in the western states 
 and territories, and in fact the laws which determine the property in the 
 precious metals themselves, are largely based upon the custom among the 
 miners, and which prevailed at the mining camps before any government or 
 courts had been established. They do not generally depend upon the common 
 law, and are matters for local study. 
 
 The subject of mining is too broad to treat within the limits of this book. 
 There are excellent works upon the subject, and the reader is referred to 
 them. 
 
 1 Buskirk v. King (C. C. A.), 72 Fed. Rep. 22. 
 
CHAPTER XVI. 
 
 ELECTRICITY. PROPERTY RIGHTS AFFECTED BY THE USE AND 
 DISCHARGE OF ELECTRICITY. 
 
 291. Properties and Character of Electricity. Electricity is not a fluid 
 as is popularly supposed. It is a phenomenon attended by certain disturb- 
 ances, when it acquires a certain intensity, which are known by the effects 
 upon material substances, and is apparent to the senses by the shock it causes 
 to the human system, or by the work performed. In discussing electricity 
 and the various phenomena attending it, it is very convenient to speak of it 
 as a fluid and as being under a certain pressure (potential), designated by 
 volts, instead of pounds per square inch; and* as being a certain measured 
 quantity (amperage), designated by the number of amperes instead of by the 
 number of cubic feet or gallons. Electricity, when confined and transmitted 
 over or through well-defined channels, partakes very much of the character of 
 a fluid, and it is convenient to designate it as such and speak of it as such 
 even in scientific and industrial circles where practical applications of it are 
 made. 
 
 Electricity, however, is not a fluid nor a substance which can be handled 
 in the sense that a material object or substance is handled. It is a vibratory 
 condition of a material substance, and is not confined to any particular sub- 
 stances only to the extent that the electrical condition varies in different sub- 
 stances under the same circumstances and conditions, its effect being usually 
 greatest in the metals and mineral substances. The earth, being largely com- 
 posed of metallic and mineral substances, is therefore readily affected by 
 electricity, and assumes an electrical condition the degree of which will some- 
 what depend upon the metallic substances, naturally inherent to the earth or 
 ground, or placed therein by artificial means. 
 
 292, Electricity Compared with Heat, Light, Sound, and Other Vibratory 
 Conditions, Electricity is as much a condition pervading the receptacle, 
 holder, or conductor which contains or conveys it as are the phenomena of 
 sound, light, or heat when they are transmitted through the air or water or 
 when they (as heat often does) pervade the earth. Very much the same 
 condition exists when an object is charged with electricity as would prevail if 
 it were heated to a high temperature; the intensity of the heat corresponding 
 to the potential of the electricity. Except that electricity travels with more 
 facility and in more direct paths, it is quite as correct to speak of the "flow 
 
 187 
 
292. OPERATIONS PRELIMINARY TO CONSTRUCTION. 1 88 
 
 of heat," or the " current of heat," or the " heat fluid," so far as it implies 
 a material substance called heat, as it is to apply the same words and phrases 
 in connection with electricity. Electricity, like heat, is merely a vibratory con- 
 dition of a substance, which has the power of communicating its phenomena 
 to other material substances brought in contact with, or in its vicinity and 
 within its sphere of susceptible influence. When, therefore, a person or a 
 large power, lighting, or transportation company changes or intensifies the 
 electrical condition of a neighbor's land or structures, it is much the same 
 disturbed condition that would prevail if the temperature of such land and 
 structures had been greatly increased, or if intense light or an unbearable 
 noise had been created. If the public at large suffer, such conditions may be 
 abated as public nuisances, as would be the case with light, noise, or heat; 
 and if an individual suffer in the enjoyment of his estate, he may enjoin the 
 operation of such plants as cause the disturbed condition, or he may recover in 
 an action for damages. 
 
 The phenomena of electricity, being more intense and violent, and per- 
 vading freely almost all substances, are more far-reaching and violent in their 
 effects; and by reason of the tendency of electricity to seek an avenue of least 
 resistance, its effects are more limited to such paths. Therefore only those 
 neighbors suffer whose land or structures lie in such path. Such an electrical 
 condition, therefore, more often creates a private nuisance, so called, and is 
 more likely to present a case for an action for damages than one for an in- 
 junction, and more frequently a nuisance by omission than one by commission. 
 
 When one acquires land with certain deposits or structures or vegetable 
 growths which are a part thereof, he acquires the right to hold, own, and 
 enjoy the land in the condition in which he purchased it, and any one who 
 changes or destroys that condition is liable for the injuries which the land- 
 owner may suffer in consequence. Land contains mineral substances which 
 may constitute the soil thereof as the substrata of clay, sand, gravel, rocks, 
 etc., as the case may be; and in addition thereto valuable minerals, such as 
 coal, precious metals, gems, water, oil, and gas. It also possesses the 
 phenomena of gravitation, of warmth, and of electricity, conditions which 
 are and always will be inherent therein. This electrical condition may 
 change and vary from causes but little understood or not fully accounted for. 
 
 If it were within the power of a neighbor to destroy the attraction of 
 gravitation inherent to one's land, there would be but little doubt that the 
 landowner would, by the laws of our country, have a right to damages for the 
 injuries caused; and for the same reasons a landowner should be indemnified 
 for any damages that he suffers in consequence of a change in the electrical 
 condition of his land by known and determined causes created by another. 
 
 Electricity in its ordinary state is not appreciable to the five senses. It 
 is only when it is collected and stored under pressure (potential) and then 
 suddenly discharged that it is capable of creating mischief or of being used 
 in any of the industrial applications. It is true that when the potential of 
 
189 PROPERTY RIGHTS AFFECTED BY ELECTRICITY. 293. 
 
 the clouds becomes much greater or much less than that of the earth, violent 
 discharges attend in nature, as in the well-known phenomena of lightning 
 and thunder; but these are not within the control of man, and their treat- 
 ment need not be pursued here. It is believed that in every instance where 
 electricity is capable of doing harm or of causing material damage, it is 
 where it has been confined or accumulated in large quantities under pressure 
 (potential) and then allowed to escape in such a manner as to create violent 
 disturbances. When it has been accumulated and discharged in such a 
 manner, and the parties who have caused the injuries can be determined, they 
 should be liable for the consequence resulting from its effects. 1 
 
 The possibilities of the manifold industrial and commercial uses to which 
 electricity may eventually be adapted, and which are even now foreshadowed 
 by the achievements of science, are so great as to make the courts hesitate in 
 declaring the exact liability from electrical disturbances. Responsibility 
 cannot be diminished or avoided because the actor has aided in the accom- 
 plishment of the result of a natural law. The person injured has a right to 
 object to the projection upon his premises, by unnatural and artificial causes, 
 of an electric current in such a manner and with such intensity as to 
 materially injure its property. 
 
 It cannot be questioned that one has the right to accumulate water upon 
 his own property and use it for a motive power; but he cannot discharge it 
 there in such quantities that, by the action of physical forces, it will inun- 
 date his neighbor's land and destroy his property, and shield himself from 
 liability by the plea that it was not his act, but an inexorable law of nature, 
 that caused the damage. If a subtle and imperceptible electric fluid be col- 
 lected for pleasure or profit, the same duty is exacted of the owner who 
 collects and stores it as is required of one who accumulates water, air, or gas 
 under high pressure, namely, that of providing an artificial reservoir or conduit 
 to safely store or transmit the artificial product and to prevent injury to 
 others. 2 
 
 293. Injuries Result from Escaping or Induced Electric Currents. The 
 injuries which result from the use of electricity are those which arise from the 
 escape of the electricity or from the currents induced by the current in other 
 conductors. These escaped or induced currents cause disturbances to other 
 electrical instruments or apparatus owned or controlled by landowners or by 
 other companies; or they may cause the disintegration and gradual destruc. 
 tton of lines of pipes or structures which they traverse, by the phenomenon 
 known as electrolysis; or they may render structures or things which become 
 the path of such currents dangerous to animals that come in contact 
 with them. 
 
 1 Watervliet Tpk. & R. Co. v. Hudson 186 [1893]. 
 
 Riv. Teleph. Co., 61 Hun 141 [1891], 135 2 Hudson Riv. Teleph. Co. v. Water- 
 
 N. Y. 393 [1892], Fletcher v. Rylanders, vliet Tpk. & W. Co., 135 N. Y. 409, 410; 
 
 L. R. i Ex. 265, 3 H. L. 330; 'National Keasbey on Electric Wires 243. 
 Bell Teleph. Co. v. Baker (Eng.), 2 Ch. 
 
2Q3- OPERATIONS PRELIMINARY TO CONSTRUCTION. I9O 
 
 The escaping of currents is usually caused by virtual contact between the 
 conductor of the current and some other line or structure which is of metal 
 and which forms a good conductor for the escaping current. A high current 
 of electricity will select that route or pathway of return to the source where 
 it is generated that requires the least energy, which will be the shortest and 
 quickest and at the same time the path of least resistance. Therefore, 
 currents frequently escape from the conductors which are intended to carry 
 them, and lines of pipe or continuous structures become surcharged with 
 electricity so as to render them dangerous, or disintegrate the line or structure 
 itself over which they travel, if the connection be not such as to afford a short 
 and easy pathway for the electricity. Thus an electric-light wire may come 
 in contact with a telephone wire and ca,use injury to the instruments upon 
 the telephone line and destroy its use as a telephone line, or even render it 
 dangerous to those who may attempt to operate it. Currents of electricity 
 generated by electric-railway and electric-light companies who utilize the 
 ground for the return to the generator, often travel over lines of gas- or water- 
 pipes or a metal structure, instead of returning by the most direct pathway 
 through the earth, the metal pipe of the pipe- lines or the steel frames of the 
 structures affording a better conductor for the currents than do the mineral 
 substances of the earth. Where the current leaves the surface of the metal, 
 as in a damp place underground, chemical action called "electrolysis" fre- 
 quently takes place which causes the slow corrosion of the metal, which in 
 the course of time produces serious injury to the pipes or to the structure. 1 
 In order to cause electrolysis or the burning out and destruction of tele- 
 phones, the current must have escaped from the primary conductor, and in 
 large quantities, at high potential. 
 
 A current may be induced in a line of metal pipes or rails, or in telephone 
 or telegraph lines, by other currents passing in close proximity. It is a well- 
 known phenomenon of electricity that whenever a current is passing near 
 to another conductor a similar current will be induced in the opposite direc- 
 tion in the second conductor, so that if two lines of wire are running close 
 together, a current in one wire will induce an exact counter-current of less 
 intensity in the other wire, and if a telegraph message or even a telephone 
 message is being sent over one wire, the same pulsations and breaks will be 
 created in the second wire, and the conversation going on in the first wire 
 may often be distinctly heard in the telephones connected with the second 
 wire; and if a dynamic current be passing over the first wire, its pulsations will 
 make such a buzzing sound in the telephones connected with the second wire 
 as to entirely drown the sounds of the voice. A telephone requires a delicate 
 pulsating current, and an alternating or discontinuous current passing in a 
 wire alongside of a telephone will frequently utterly destroy its use for pur- 
 
 1 For the principal case on electrolysis and Prospect Hts. Ry. (Illinois courts) 
 see Case Gold on behalf of Peoria Water [1900], not yet reported. 
 Company v. Central Railway and Peoria 
 
PROPERTY RIGHTS AFFECTED BY ELECTRICITY. 294. 
 
 poses of telephoning. If both the dynamic current wire and the telephone 
 wire are connected with the earth and depend upon it for return to the gener- 
 ators or battery, the disturbance will be even greater, rendering the more deli- 
 cate operation of telephoning quite impossible. 
 
 The uses of these currents of different characters and potentials in 
 proximity with one another, and for the several purposes for which electricity 
 is employed, are what give rise to the suits and actions for electrical disturb- 
 ances. Much of the trouble and difficulty can be avoided if one or the other 
 of the parties suffering adopt or use a metallic circuit for return to the battery 
 or generator, instead of using the earth for a return ; and if the currents of 
 varying intensities be kept at respectable distances from one another. The 
 electric-light companies usually employ the metallic return circuit, which re- 
 duces largely the interference with their electrical operations. In electric rail- 
 ways the rails of the track are generally used for a return circuit. Not being 
 insulated, more or less of the current escapes from the track. This is obviated 
 in a large degree by connecting each rail with the succeeding rail by a wire 
 called a bond, and by placing a return copper wire in the ground between 
 and connected to the rails, upon which wire the current returns to the genera- 
 tor. The double trolley system, which consists of a direct and a return metallic 
 circuit insulated from the ground, is the safest and best, but it is so expensive 
 to build and complicated to operate that it has not been generally adopted. 
 
 294. Electrical Litigation is Between Owners of Franchises and Not 
 Landowners, Almost all the litigation over disturbances by electricity has 
 been between those companies or persons using high potential electricity and 
 those using low potential electricity; such are electric-light companies and 
 trolley lines of the former class, and telegraph and telephone companies of the 
 latter class. As these companies are usually corporations which are not land- 
 owners, but which possess franchises or privileges granted by the government 
 to occupy the public ways of the country or the streets of villages and cities, 
 the cases where landowners' rights have been interfered with by electric 
 companies are very few. 
 
 In the case of companies holding franchises the question of priority of 
 occupation of the road or street has an important bearing upon the rights of 
 the parties; also the question as to which use of the streets or roads is a use 
 incident to travel and therefore incident to the proper use of the way, it being 
 frequently held that an electric -trolley line or an electric-light line is such a 
 use, and that telegraph and telephone lines, not being incidental to street 
 purposes, have not the same rights and privileges that an electric light or 
 trolley line has. The determination of such rights, therefore, is not based or 
 dependent upon the ownership of land, nor are the rights to be determined 
 dependent upon or incident to the ownership of land. Being incidental to 
 the right of way, they are treated in a later part of the book, so far as they 
 affect easements of rights of way, telegraph, and telephone lines in public ways.* 
 * See Sees. 798, 799, and 827-832, infra. 
 
295- OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 295. Litigation over Electrical Disturbances between Public Corpora- 
 tions. The law as to the rights of companies to the protection of the courts 
 from disturbances of other companies' lines is by no means definitely settled. 
 Telephone and telegraph companies which, with the consent of the authorities, 
 have spent much money in building up a profitable business of great utility 
 insist that they are entitled to protection against the use of the streets by other 
 companies for other and more powerful currents which injure their business 
 and impair the value of their property. 
 
 In the earlier cases where these companies had built their lines and estab- 
 lished their business prior to the construction and operation of the electric 
 light and electric railways this right was conceded, and it was generally held 
 that the former companies should not be required to adopt new and expensive 
 devices for neutralizing the effects of the new currents if their effects could 
 be prevented by the latter companies using them by any feasible methods and 
 at a reasonable cost. 1 * 
 
 To prevent induction in telephone or telegraph wires, electric-light and 
 electric-railway companies have been enjoined from stringing their wires parallel 
 to telephone or telegraph wires and nearer than a designated number of feet, 
 or for a linear distance greater than that designated. 2 In a number of the 
 cases the element of danger from contact by reason of having wires in such 
 close proximity entered into the case, but to what extent it is impossible to 
 determine. 3 
 
 While no person or company has an exclusive right to the use of any part 
 of a highway, yet when one is first on the ground by permission of the proper 
 authorities the courts will protect him against injurious interference with his 
 property or business if such injuries can be avoided. 4 
 
 In these cases the telephone or telegraph companies had priority in occu- 
 pying the street with their lines, and in some of the cases relief was denied 
 when the electric light or power companies had first erected their lines. 5 
 These earlier cases were followed by decisions to the effect that where the 
 
 Nebraska Teleph. Co. v. York Gas & Elec. Ltg. Co., 14 Cine. Week. Bull. 327, 
 
 Elec. Co., 17 Neb. 284 [1889]; Western where an injunction was refused when 
 
 Un. Teleg. Co. v. Guernsey, etc., Co., the electric-light wires were parallel and 
 
 46 Mo. App. 120. But see Rocky Mt. three or four feet distant from telegraph 
 
 Teleph. Oo. v. Salt Lake City Ry. Co. lines. See also Bell Teleph. Co. v. Belle- 
 
 (Utah), 3 Amer. El. Cas. 350, 356, and ville Elec. L. Co., 12 Ontario Rep. 571 
 
 Wisconsin Teleph. Co. v. Eau Claire St. [1886]. 
 
 Ry. Co., 3 Amer. El. Cas. 383. 3 Bell Teleph. Co. v. Belleville Elec. 
 
 2 Nebraska Teleph. Co. v. York G. & L. Co.. 12 Ont. Rep. 571. 
 
 Elec. Lt. Co., 17 Neb. 284, 43 N. W. Rep. * Bell Teleph. Co, v. Belleville E. L. 
 
 126 [1889], which fixed the minimum dis- Co., 12 Ont. Rep. 330 [1886]; Western 
 
 tance apart of incandescent light and Un. Tel. Co v. Guernsey, etc., Co., 46 
 
 telephone wires at eight feet, or for Mo. App. 120. But see, contra, East Tenn. 
 
 more than three hundred linear feet, and Teleph. Co, v. Knoxville St. Ry. Co. 
 
 prohibited arc lights from 'being strung (Tenn.), 3 Amer. El. Cas. 400 [1890]; 
 
 parallel on same side t>f street; Western Watervliet Tpk. & R. Co. v. Hudson 
 
 Un. Teleg. 1 Co, v. Guernsey & Scudder Riv. Teleph. Co., 135 N. Y. 393 [1895;]. 
 
 Elec. Lt. Co., 46 Mo. App. 120 [1891]; 5 Nebraska Teleph. Co. v. York G. & 
 
 West. Union Teleg. Co. v. Champion E. L. Co., 17 Neb. 284. 
 
 * See Sees. 827-831, infra. 
 
193 PROPERTY RIGHTS AFFECTED BY ELECTRICITY. 296. 
 
 expense of protecting such vested rights was small, if undertaken by the com- 
 pany suffering the disturbance, as compared with what it would have cost the 
 electric light or power company to prevent the injury, an injunction would 
 be, and often has been, refused, and the party suffering left to an action for 
 darriages for the injuries, the measure of which was sometimes held to be the 
 cost of protection. 1 
 
 296, Superior Rights in Streets Determined by Uses Incident to Travel. 
 Another element that has been a strong factor in determining the rights of 
 telephone and telegraph companies in opposition to those of electric light and 
 power companies is that the latter are sometimes held necessary and primary 
 uses of streets for public travel, while the former are not. The Post-road Act 
 expressly provides that the privileges conferred upon a telegraph company 
 shall not interfere with ordinary travel.* 
 
 In accord with this view there is a line of cases that hold that the franchise 
 of a telephone company to use the streets is subservient to the rights of the 
 public to use them for new and improved modes of travel ; that a franchise 
 granted by the legislature for such a purpose confers a right paramount to a 
 telephone or telegraph company; and that if the operation of a street railway 
 under such a franchise disturb a telephone company's apparatus, the latter 
 must meet the new condition. a Therefore where an electric-light company 
 also furnished power to individuals for domestic and manufacturing purposes, 
 it was held that the fact that the electricity was used in part for street pur- 
 poses did not give the light company superior rights that would outweigh a 
 prior occupancy by a telegraph company. 3 In another case in an inferior 
 court it was held that as between two electric-lighting companies each having 
 permission to use the street and each furnishing light for business and domestic 
 purposes, the company which had the contract for lighting the streets and 
 public places had the superior right even though the other company were 
 prior in time of occupation. 4 
 
 Injunctions to prevent the use of the single-trolley system of street rail- 
 ways have frequently been sought, and have sometimes been granted, 5 and at 
 other times been refused. 6 If a telephone company be required to protect 
 
 1 Central Un. Teleg. Co. v. Sprague E. Rep. 417. 
 
 Ry. & M. Co. (Ohio Com. PL), 2 Amer. 3 Western Un. Teleg. Co. v. Los An- 
 
 El. Cas. 307 [1889]. Cases cited in note geles E. L., 76 Fed. Rep. 178. 
 
 i,^. 189. 4 Terre 'Haute El. L. & P. Co. v. Citi- 
 
 >2 Cinc. Inc. Ry. Co. v. City, etc., zens' El. L. & P. Co. (Ind. Super. Ct.), & 
 
 Teleph. Assn., 48 Ohio St. 390 [1891]; Amer. El. Cas. 193 [1895]. 
 
 Watervliet Tpk. & R. Co. v. Hudson 5 East Tenn. Teleph. Co. v. Chatta- 
 
 Riv. Teleph. Co., 135 N. Y. 393. Ac- nooga El. Ry. Co. (Tenn. Ch.), 2 Amer. 
 
 cord, Wisconsin Teleph. Co. v. Eau El. Cas. 323 [1889]; Wichita & Sub. Ry. 
 
 Claire St. Ry. Co. (Wis.), 3 Amer. El. Co. (Kans. Dist. Ct., Sedgwick County) 
 
 Cas. 383 [1890]; Birmingham Trac. Co. [June 29, 1889]. 
 
 v. Bell Teleph. Co. (Ala.), 24 So. Rep. 6 Central Union Teleph. Co. v. Sprague 
 
 731 [1898]; National Bell Teleph. Co. v. E. Ry. & Motor Co., 2 Amer. El. Cas. 
 
 Baker (Eng.), 2 Ch. 186 [1893]. And see 307 [1889]; Wisconsin Teleph. Co. v. 
 
 Pennsylvania Teleph. S. Co. v. Wilkes- Eau Claire St. Ry. Co., 3 Amer. El. Cas. 
 
 barre & S. W. Ry. Co., n Pa. Co. Ct. 383 [1890]. 
 
 * See Sees. 798-841, infra. 
 
29^. OPERATIONS PRELIMINARY TO CONSTRUCTION. 194 
 
 itself by new devices and appliances, it seems that the cost of such remedies 
 may be recovered in an action at law. 1 
 
 Some of the cases refuse any relief to telephone or telegraph companies 
 from earth current, for the reason that to do so would give to them a monopoly 
 for its feeble current of the earth within a considerable radius, against all 
 other forms of electrical energy which might require its use; making the 
 determination of the question of whether an injunction should issue one of 
 comparative degree or extent, and considering the delicate sensibility of the 
 telephone to ordinary dynamic currents, and the small expense at which the 
 telephone company could secure effective relief, compared with what it would 
 cost the railway company. 2 
 
 The English courts have criticised the American courts in one respect 
 in their determination of the rights of companies engaged in the use of 
 electricity, wherein they have excused the owner of land, in using his land for 
 an unnatural or extraordinary purpose, from responsibility for the conse- 
 quences of such user to his neighbor except when they result from his negli- 
 gence. The doctrine of the case of Cumberland Telephone Co. v. United 
 Electric Railway Co., that where a person is making a lawful (?) use of 
 his own property or of a public franchise in such manner as to injure 
 another, his liability depends on the fact that he has made use of the means 
 which, in the progress of science and improvement, have been shown by ex- 
 perience to be the best, and that he is not bound to experiment with recent 
 inventions not generally known, or to adopt expensive devices when it lies in 
 the power of the person injured to adopt an effective and inexpensive method 
 of prevention, is questioned. 3 
 
 The doctrine of negligence or due care and skill is applied to cases where 
 injury results from contact of wires; and it is equally the duty of both com- 
 panies using electricity to protect their lines so that they shall not come in 
 contact. Mandamus will issue to require an electric railway to maintain 
 guard-wires to prevent contact in anticipation of falling wires or poles break- 
 ing. The question of negligence or failure to take proper precautions is a 
 question for the jury under proper instructions. 4 
 
 As the use of electricity for lighting and power purposes extends over but 
 a few years, the cases upon the subject of disturbance, interference, and 
 physical injuries are necessarily few. Such as there are have been collected 
 .and published recently in a book by Mr. Edward Q. Keasbey, of the New 
 Jersey bar, to which the reader is referred. 
 
 Central Un. Teleg. Co. v. Sprague 'Cumberland Teleph. Co. v. United 
 
 E. Ry. & Motor Co. (Ohio Com. PL), 2 Elec. Ry. Co., 42 Fed. Rep. 273. And 
 
 Amer. El. Cas. 307 [1889]; semble, Water- see National Bell Teleph. Co. v. Baker 
 
 vliet Tpk. & R. Co. v. Hudson Riv. (Eng.), 2 Ch. 186 [1893]. 
 
 Teleph. Co., 61 Hun 141; but see 135 'Cumberland Teleph. Co. v. United 
 
 N. Y. 393. Contra, Cumberland Teleph. Elec. Ry. Co., 42 Fed. Rep. 273. 
 
 Co. v. United Elec. Ry. Co., 42 Fed. * Keasbey on Electric Wires 242. 
 Rep. 273. 
 
CHAPTER XVII. 
 LIGHT AND AIR INCIDENT TO LAND. 
 
 301. Free and Uninterrupted Use of Light and Air Incident to Land. 
 
 The owner of land has the right to the enjoyment of the uninterrupted passage 
 of the light over his land, and to the free circulation of the air above it in a 
 reasonably pure and wholesome condition. Anything which deprives him of 
 this enjoyment by charging the air with dust, smoke, and noxious gases and 
 vapors, thus producing injury to property, health, or comfort, is a nuisance. 
 The law will not hesitate to declare such impurities a nuisance when they 
 permeate the atmosphere in unreasonably dense volumes, or when they are so 
 carelessly or unskillfully disposed of as to produce an interruption of the 
 comfortable enjoyment of life or property. 
 
 Certainly some degree of impurity will be permitted, for a man cannot 
 occupy his dwelling and consume fuel in it, for domestic purposes, without 
 its impairing the natural purity of the air to some degree. A building cannot 
 be erected or a tree planted near the house of another without in some degree 
 diminishing the quantity of light which the adjoining owners enjoy, but such 
 small interruptions will not give a right of action, for they are necessary 
 incidents to the common enjoyment, by all, of their rightful possessions. The 
 pollution of air or the obstruction of the light must be to such an extent or 
 degree as causes an inconvenience materially interfering with the ordinary 
 physical comforts of human existence, and not an existence merely according 
 to the elegant and dainty modes and habits of living, but according to the 
 plain, sober, and simple notions that obtain among the people. 1 The degree 
 of smoke permissible in the atmosphere will depend somewhat upon the com- 
 mercial character and the size of the community, as more or less pollution is 
 an unavoidable feature of living in modern times, and especially in cities. It 
 cannot be expected that an atmosphere shall be entirely free from artificial 
 impurities, but only an atmosphere as free and pure as could reasonably be 
 expected in view of the location and the business of the community. 2 
 
 The law recognizes only a tangible or visible injury from smoke, dust, or 
 noxious vapors, and the injury must result from an unreasonable use of the 
 
 1 Walter v. Selfe, 4 Eng. Law & Eq. 486. 
 
 15; Embry v. Owen, 4 Eng. Law & Eq. 2 Wood's Law of Nuisance, 2d ed.,496. 
 
 195 
 
302. OPERATIONS PRELIMINARY TO CONSTRUCTION. 196 
 
 property, that is, an unreasonable use in view of the circumstances relied upon 
 to sustain the charge of nuisance. It has therefore been held that smoke 
 ordinances were wkhin the proper exercise of police power when one kind of 
 fuel will produce a smoke less obnoxious than another kind ; and it has been 
 held the duty of manufacturers to use that kind of fuel which is least annoy- 
 ing. The use of a fuel which created a smoke which left a bad taste in the 
 mouths of those breathing it, or a peculiar, pungent effect, has been held to 
 create a nuisance. 
 
 The degree of personal discomfort required t in order that a lawful business 
 creating dust, smoke, or vapors should be declared a nuisance is one of fact 
 under the peculiar circumstances of the case, and is not a question of law. It 
 has been determined that there must be a sensible diminution of the comfort- 
 able enjoyment of the premises, or such a physical discomfort as to detract 
 sensibly from the ordinary enjoyment of life. Such injuries have been held 
 to include the discoloration of buildings or furniture, or of clothes or goods, 
 injury and destruction to vegetation, or a deposit of cinders or chemical dust. 
 A business that merely impairs the rental value of property or disturbs the 
 fastidious taste or delicate sensibility of neighboring inhabitants has been held 
 not a nuisance, nor such an injury as will warrant enjoining it. 
 
 302. Instances of Interference with Light and Air. The smoke and 
 soot from bituminous coal from a mill, or from a blacksmith-shop, or from a 
 low dwelling-house; or that from a planing-mill that uses shavings, sawdust, 
 and chips as fuel;' or the smoke and acid vapors from a factory, may be 
 injurious to the use and enjoyment of land to such a degree as to warrant the 
 owner in having them abated as nuisances, or to entitle him to damages. 
 
 Any manufacturing plant is likely to be adjudged a nuisance as the land 
 in its vicinity becomes occupied and is used for habitation, and especially 
 one engaged in the manufacture of noxious or acrid chemicals, or one 
 requiring the continuous operation of large' furnaces, as iron- or glass-works, 
 lime-, brick-, or pottery-kilns, or a power-plant. 1 It makes little difference 
 whether the injury be due to smoke, dust, or vapors if the injury be substan- 
 tial and apparent. 
 
 The injury need not be to the material substance of the land or to the 
 vegetable growths or artificial structures which it bears; it is an invasion of 
 the owner's rights if it deprives him of reasonably free and full enjoyment of 
 it, considering his personal comfort and pleasure. He is not expected nor 
 required to endure unpleasant and disturbing noises or noisome, disgusting 
 odors or stenches. Any one who creates such things as are sensibly offensive 
 or as produce physical discomfort is invading the landowner's rights. Such 
 are rolling-mills, shops that work sheet metals, blacksmith and hammer shops, 
 planing- and saw-mills and factories, the operations of which are attended with 
 screeching, grating, rasping noises and heavy thuds; or gas-works, tanneries, 
 
 1 16 Amer. & Eng. Ency. Law 948, 949. 
 
LIGHT AND AIR INCIDENT 7V LAND. 303. 
 
 fat-rendering and soap-making establishments, glue-works, garbage-disposal 
 plants, and many other factories that are offensive and unbearable in an 
 inhabited community. 1 
 
 These and a thousand others much less disagreeable may not be operated 
 to the sensible physical discomfort of landowners in the vicinity; including 
 such common things as slaughter-houses, pig-pens and barn-yards, livery- 
 stables, ponds of stagnant water, etc. 2 Other instances of nuisances to 
 property-owners are the maintenance of such an excessive heat by an adjacent 
 owner as to render the occupation of the premises of the former uncomfortable, 3 
 or the keeping of fires that are threatening, or the storage of explosive and 
 inflammable substances in such a way as to be dangerous to neighboring 
 property. 4 
 
 303. Public and Private Nuisances. Such interferences with the private 
 rights of an individual landowner should be distinguished from public or 
 common nuisances whiclj affect the community at large or a considerable 
 portion of it. Interference with the individual rights of one person or a 
 determinate number of persons is sometimes called a private nuisance and 
 may be the ground of a civil action, while a public nuisance (nuisance 
 proper) is the subject of an action, suit, or an indictment by the people or the 
 state, by a public official, the attorney-general. 
 
 For an individual to maintain a suit to abate a public nuisance he must 
 have a special interest (must have suffered some special damage) beyond that 
 of the general public. 5 The dumping of street-cleanings by a city near 
 plaintiff's house, so as to annoy him by the noxious and unhealthy odors and 
 vapors arising, whereby he and his family were made sick, and his property 
 depreciated, states a special injury. 6 The plaintiff can recover for defendant's 
 wrongful maintenance of a nuisance irrespective of whether or not he himself 
 maintained one on his own land. 7 If several families suffer, their actions 
 should be several and not joint, as where different persons suffer damages from 
 the location of a pest-house near them. 8 
 
 Public or common nuisances are those that affect the community at large 
 or some considerable portion of it, such as the inhabitants of a town, and the 
 person committing such public or common nuisance is liable to criminal 
 prosecution. A public nuisance does not always create a civil cause of action 
 for any person, but it may do so under certain circumstances. A private 
 nuisance affects only one person or a certain number of persons and is a 
 ground for civil proceedings only. Generally a private nuisance affects the 
 
 1 Board v. Lederer (N. J. Ch ), 29 All. (Cal.), 53 Pac. Rep. 1118. 
 
 Rep 444 6 City of New Albany v. Slider (Ind. 
 
 2 16 Amer. & Eng. Ency. Law 953-955- App.), 52 N. E. Rep. 626 [1899]. 
 8 Grady v. Walsner, 46 Ala. 381; Rein- 7 Correll v. City of Cedar Rapids 
 
 hart v. Mantasti, 61 L. T. N. S. 328. (Iowa), 81 N. W. Rep. 724. 
 
 4 i6 Amer. & Eng. Ency. Law Q55.956. 8 Paducah, City of, v. Allen (Ky.), 49 
 
 5 i6 Amer. & Eng. Ency. Law 940, 941 ; S. W. Rep. 343. 
 Sriskiyou Lumb. & Mer. Co. v. Rostel 
 
304. OPERATIONS PRELIMINARY TO CONSTRUCTION. 198 
 
 control, use, and enjoyment of immovable property. 1 A public nuisance at 
 common law was anything offensive to the sight, smell, or hearing, erected or 
 carried on in a public place where people dwell or pass, or have a right to 
 pass, to their annoyance. 2 
 
 Whether or not certain acts or conditions are public nuisances depends 
 frequently upon their locality. Certain acts or structures might be a public 
 nuisance if located in public places or a thickly settled community, when they 
 would not be so if located in remote and unfrequented places, as the outskirts 
 of a village or city. 
 
 Thus a brew-house, a glass-house, a chandler's shop, a pigsty, are public 
 or common nuisances when set up in such a populous neighborhood of a city 
 that they necessarily annoy the neighborhood. A slaughter-house, a soap- 
 works, a tallow factory, a poudrette factory, a livery stable, a tannery, a ceme- 
 tery, a brick-kiln, a blacksmith-shop, a powder-house, and even a wagon-load 
 of offensive material which emits an odor, may each- become a public nuisance 
 in a thickly settled locality. 3 
 
 These same structures and acts may also be private nuisances, and they 
 might be held no nuisance at all in sparsely settled localities. A tree or post 
 on the margin of a crowded street has been held a public nuisance, although 
 it would not be on a retired street. 4 
 
 304, Ordinances to Prevent Smoke Nuisance. To prevent discomforts 
 and the disagreeable effects of smoke, many cities have passed ordinances for- 
 bidding the use of soft coal and other fuels which create dense black smoke, 
 and the constitutionality of these ordinances has been attacked upon the 
 ground that they discriminated between classes of persons residing within the 
 same municipal territory. 
 
 It has been held that smoke is not a nuisance per se unless so declared 
 by statute. 5 A city ordinance forbidding under penalty the emission of dense 
 smoke from a chimney in the city, but exempting dwelling-houses and steam- 
 boats from its operation, was held valid. 6 An ordinance declaring the emis- 
 sion of dense smoke under certain circumstances a nuisance, and prescribing 
 the penalty of each, and also providing that, nothing herein contained shall be 
 construed to apply to manufacturing establishments using the entire product 
 of combustion, and the heat, power, and light produced thereby within the 
 building where they were generated within the radius of three hundred feet 
 therefrom, was held unconstitutional. The court said: "No arbitrary dis- 
 tinction between different kinds or classes of business can be sustained, the 
 conditions being otherwise similar. The statute is directed against this 
 
 1 16 Amer. & Eng. Ency. Law 926. 2 Sneed 263; Commonwealth v. Reed, 34 
 
 2 Hackey v. State, 8 Ind. 494; West- Pa. St. 275. 
 
 cott v. Middleton, 43 N. J. Eq. 478. 5 St. Louis v. Heitzeberg Packing & 
 
 3 16 Amer. & Eng. Ency. Law 927 et Provision Co., 42 S. W. Rep. 954. 
 
 seq. 6 People v. Lewis, 86 Mich. 273, two 
 
 4 Franklin Tpk. Co. v. Crockett (Tenn.), justices dissenting. 
 
199 LIGHT AND AIR INCIDENT TO LAND. 305. 
 
 nuisance occasioned by dense smoke, and it can make no practical difference 
 in what business the owners or occupants of the buildings in which such 
 smoke -is produced are engaged ; whether the heat evolved from the combus- 
 tion of the fuel producing such smoke is applied to the generation of steam 
 or other useful purposes; or, further, whether steam-power is used in manu- 
 facturing or is applied to other purposes, as a grain -elevator or hoisting 
 apparatus in a warehouse." The court held the distinction or classification 
 attempted to be made untenable, and that the act was therefore invalid. 1 
 
 305, Vapors and Odors from Gas-plant. The manufacture of gas neces- 
 sarily involves the production of vapors, odors, and fluids that are offensive 
 and injurious to health; but gas being a necessity to a community, its manu- 
 facture is not regarded as a nuisance of itself. When a gas company is 
 authorized by charter to erect gas-works and operate them for the purpose of 
 manufacturing gas for the public, it is responsible in damages for the ordinary 
 and usual odors emitted if they constitute a nuisance, and the fact that the 
 company is not negligent does not protect it from liability. a 
 
 That which would offend an ordinary man, and not a delicate-nosed 
 person, has been defined as a nuisance. 3 This question must be decided by 
 a jury, and it has been held not a question of the comparison of the condition 
 of one property owner with that of his neighbors, but the question whether 
 a gas company caused the said property owner actual damage. A jury should 
 not be instructed that the owner is entitled to the same degree of comfort as 
 that enjoyed by other persons in the neighborhood. 4 
 
 It has been held that a landowner could not recover damages for injuries 
 caused by the erection of a low chimney on an adjoining lot which sent 
 smoke and cinders upon the premises and damaged the owner's well; 5 but 
 when a gas company creates smells, smoke, and noxious odors so annoying 
 to persons residing near the gas-works as to render his premises uncomfortable 
 for habitation, it was held a private nuisance. 6 If, however, the buildings 
 and processes of the company were of the best description and its servants 
 were careful and the company exercised due care and diligence in its business, 
 it seems that an indictment will not lie against a corporation which has been 
 authorized by the legislature to manufacture gas to be used for lighting the 
 'streets' and buildings of the city. The act of the legislature bars the people 
 from making a public complaint by indictment so long as the gas company 
 conducts its business with skill, care, and science. 7 
 
 An electric-light plant will not be abated as a nuisance where it is 
 operated in a manufacturing district, does not emit offensive smoke or 
 
 1 State v. Ramsey Co. (Minn.), 51 N. 12 Ohio St. 392. 
 
 W. Rep. 112 [1892]. 5 Grange v. Pately Bridge G. & W. 
 
 2 8 Amer. & Eng. Ency. Law 1281, Co.. 14 Gas J. 309. 
 
 1282. 6 8 Amer. & Eng. Ency. Law 1282 and 
 
 3 Bramwell, T., in Tilly v. Slough G. cases cited. 
 
 Co.. 17 Gas J. 331. 7 People z/. N. Y. G. Co. (N. Y.), 64 
 
 4 Columbus G. L. & C. Co. v. Freeland, Barb. 55. 
 
306. OPERATIONS PRELIMINARY TO CONSTRUCTION. 2OO 
 
 cinders, and does no material injury to plaintiff's property, though the 
 machinery makes a buzzing noise till a late hour of the night. 1 
 
 306. Acts that Create Nuisances. A village empowered to maintain and 
 construct sewers is liable for injury resulting from noxious vapors coming 
 upon the premises of abutting owners through it* negligence in the exercise 
 of such p'ower. 2 
 
 The moving of a building through, or the unloading or temporary piling of 
 lumber in, the streets of a village or city without permission of the authorities, 
 is a nuisance. 3 Whether or not a carriage-stone of usual size and shape and in 
 the usual position on the street is a common nuisance is a question of law, 
 not of fact. 4 
 
 The fact that a building is intended to be used for a purpose which will 
 create a nuisance is not sufficient ground for an injunction to restrain the 
 erection thereof, unless it be alleged or proved that the building could not be 
 devoted to other legitimate uses. 5 A grantor who has erected a structure 
 which creates a nuisance is liable for the continuance of the nuisance when 
 he has covenanted in the deed for quiet enjoyment and right to maintain such 
 structure. 6 
 
 307. Easements of Light and Air. Easements are sometimes created 
 which give to one person a right to have light and air come to his windows 
 unobstructed across the land of another. In England this right may be 
 acquired by prescription or adverse user for the full statutory period. In the 
 United States generally this easement cannot be created by prescription, and 
 it is inconsistent with the progress and development of a new country which 
 is growing and changing as rapidly as is the United States. Some states hold 
 that the easement and ancient rights cannot be prescribed for, and these are 
 Alabama, Connecticut, Georgia, Iowa, Indiana, Maine, Maryland, Massa- 
 chusetts, New York, Ohio, Pennsylvania, South Carolina, Texas, West 
 Virginia, and Vermont. The states holding that this easement may be pre- 
 scribed for are Illinois, Louisiana, and New Jersey. 7 
 
 Agreements reserving or creating certain rights of light and air over land 
 will be sustained and enforced by the courts, the same as agreements and 
 grants of other easements. A reservation in a deed of an easement to light 
 and air from premises sold operates as a grant of a newly created easement, 
 and the courts will enjoin the erection of a building which shall interfere 
 substantially with light and air of the windows of the person creating the 
 easement. 8 An intention to create an easement of light and air over a court 
 
 1 McCann v. Strang (Wis.), 72 N. W. [1898]. 
 
 Rep. 1117 [1897]. 5 Dalton v. Cleveland, etc., Ry. Co. 
 
 2 Willett v. St. Albans (Vt.), 38 Atl. (Ind.), 43 N. E. Rep. 130. 
 
 Rep. 72 [1897]. 6 East Jersey W. Co v. Bigelow (N. J.), 
 
 3 Concord v. Burleigh (N. H.), 36 Atl. 38 Atl Rep. 631 [1897]. 
 
 Rep. 606; Johnson Chair Co. v. Agresto, 7 6 Amer. & Eng. Ency. Law 152. 
 
 73 111. App. 384 [18987. 8 Hagerty v. Lee (N. J.), 15 Atl. Rep. 
 
 4 Robert v. Powell, 52 N. Y. Supp. 918 399 [if 
 
2OI LIGHT AND AIR INCIDENT TO LAND. 308. 
 
 cannot be inferred from a reference in an administrator's deed describing the 
 property as bounded " in part on a court called * P. place.' " l 
 
 Such an agreement by a person to surrender to the adjoining owner who 
 is contemplating the erection of a structure of all his rights to light and air 
 over the said owner's lot is within the statute of frauds. 2 A court will take 
 judicial notice that a brick wall built 3 feet 8 inches from certain windows 
 and at least 15 inches above them is an obstruction of light and air. 3 
 
 Carrying on an offensive trade for twenty years in the same place, away 
 from buildings and public roads, does not justify a continuance thereof after 
 the building of houses and laying out of roads, so that it becomes a nuisance. 4 
 In New York state twenty years' adverse possession of part of the air, 
 light, and access appurtenant to a city lot by means of the maintenance of an 
 elevated road in the street in front of such lot is sufficient to give title to such 
 easements by prescription even though the possession is based on no actual 
 adverse title. 5 
 
 Where the basement of a building is lighted from above by a floor-light, 
 the right to the light from such source is an easement which passes with a 
 lease of the basement, in the absence of a restriction in the lease ; and the. 
 tenant of the room above will be enjoined from covering the floor. 6 
 
 The right to discharge smoke and soot on the premises of another is an 
 easement, within Code, 2031, providing that, in suits in which title to an 
 easement in land is claimed through adverse possession, the use of the same 
 shall not be admitted as evidence that the party claimed the easement as his 
 right. 7 
 
 308, Interference of Air and Light by Boundary Walls and Overhang- 
 ing Structures.* In New York state a person may erect a structure on his 
 own lot for the purpose of preventing a view of his premises by a neighbor 
 even though it obstruct the light of the neighbor's windows. 8 He may erect 
 a screen or fence upon a party-wall dividing two buildings; but he is under 
 no obligation to fence the top of the party-walls so as to protect persons who 
 may be on the roof of adjoining buildings from falling over into his yard. 
 There is no exception to this principle in favor of firemen using the roof of 
 the adjoining building in the performance of their duties. 9 
 
 An injunction restraining a person from erecting any building so near as 
 
 1 Baker v. Willard (Mass.), 50 N. E. N. Y. 220, distinguished, and 13 N. Y. 
 Rep. 620 [1898]. Supp. 626, modified. 
 
 2 Ware v. Chew (N. J.), I Atl. Rep. 6 O'Neill v. Breese (Super. Ct.), 23 
 746 [1888]. N. Y. Supp. 526. See Greer v. Van 
 
 3 Ware v. Chew (N. J.), i Atl. Rep. Meter (N. J. Ch.), 33 Atl. Rep. 794- 
 
 746 [1888]. 7 Churchill v. Burlington Water Co. 
 
 * Board v. Lederer (N. J. Ch.), 29 Atl. (Iowa), 62 N. W. Rep. 646. 
 
 Rep. 444. 8 Levy v. Samuel (Super. Ct.), 23 N. Y. 
 
 5 American Bank-Note Co. v. New Supp. 825. 
 
 York El. R. Co. (N. Y. App.), 29 N. E. 9 Woods v. Miller, 52 N. Y. Supp. 217. 
 Rep. 302; Broiestedt v. Railroad Co., 55 
 
 * See Sec. 341, infra. 
 
308. OPERATIONS PRELIMINARY TO CONSTRUCTION. 2O2 
 
 to exclude the light from plaintiff's house is not sufficiently denned, it not 
 appearing whether a building would be permissible under any circumstances, 
 and, if so, how near. 1 An action may not be had for the removal of such a 
 structure as a bay-window, because such windows extend into the street and 
 obstruct the view, where it does not appear that there is any serjous interfer- 
 ence with light, air, or acces.s. 2 
 
 The construction of a building, so that part of it overhangs a street in a 
 to\\n in such a manner that a neighbor's property is rendered more liable to 
 fire than before, thereby increasing the cost of insurance and depreciating the 
 market value of the property, ordinarily gives no right of action to the party 
 aggrieved. 3 
 
 Although private persons may not enjoin projections into the street, they 
 may prevent buildings from being built which overhang the boundary of their 
 respective lots, or recover substantial damages for the trespass. If they have 
 stood by and seen the building erected without notice and protest, they may 
 be denied a writ of mandamus requiring that the encroaching wall or project- 
 ing roof be taken down, but damages will be awarded to compensate the 
 owner for the injury done to his land. 4 
 
 This subject is, however, so closely allied to the chapter following that it 
 will be further treated therein, to which the reader is directed. * 
 
 Robinson v. Clapp, 65 Conn. 365. Rostel (Cal.). 53 Pac. Rep. 1118 [1898]. 
 
 a Wormser v. Brown (Sup.), 25 N. Y. Contra, People ex rel. Ackerman v. True, 
 
 Supp. 553. But see Hess v. Lancaster N. Y. Sup. Ct., June 1900. 
 
 (Com. PI.), 4 Pa. Dist. Rep. 737. 4 Crocker v. Manhattan L. Ins. Co., N. 
 
 3 Siskiyou Lumber & Mercantile Co. v. Y. Sup. Ct., June 1900. 
 
 * See Sec. 366, in/re. 
 
CHAPTER XVIII. 
 
 PROPERTY RIGHTS DEFINED BY BOUNDARY LINES. LATERAL 
 
 SUPPORT. 
 
 311. Rights of Adjoining or Contiguous Owners. Considerable space 
 has been heretofore given to the rights of riparian owners, and more space will 
 be given hereafter to the boundary-lines of contiguous or adjoining owners 
 and to the determination and location of such boundary-lines. Before taking 
 up the determination and location of such lines it is desirable to understand 
 the property rights of adjoining owners upon such a boundary-line. Many 
 of these things will be discussed as directly incident to the determination of 
 the boundary-line, but there are some rights which will not be presented and 
 which are best treated here. 
 
 The boundary-line between two adjoining property owners is frequently 
 denned by barriers which are employed not only to designate the line of 
 separation between two estates, but also to prevent encroachments and tres- 
 pass, by keeping people or animals out of, or off from, the land of the owner. 
 Such obstructions are usually in the form of fences, walls, or hedges, and 
 may be erected or planted upon the line or at the uttermost limit of the 
 dividing-line. When walls, fences, and ditches are built equally upon both 
 sides of the dividing-line they are usually held to belong to the two adjoining 
 landowners, each owning an undivided interest in the structure. 1 By statute 
 it is sometimes provided that the structure or fence may be divided by fence- 
 viewers or commissioners, so that each party shall own and control the whole 
 of a certain length or a definite part of the structure, but in the absence of 
 such statute or any express agreement the two adjoining landowners are joint 
 owners in the said fence or structure. 
 
 312. Trees and Shrubs on Boundary Line Line-trees. In the country 
 it is often the practice to plant hedges or trees directly upon the dividing-line 
 between estates, and where tracts of forests are subdivided by real or imaginary 
 boundary-lines it often happens that trees will stand upon the line, and in 
 such cases they are called "line-trees." The line-tree, it seems, need not 
 center upon the boundary-line. It is a line-tree if the line passes through 
 
 v. Burrell, n Mass. 294; Rawson v. Ward, 128 Mass. 552. 
 Stoner v. Hunsicke.r, 47 Pa. St. 514; 
 
 203 
 
3 T 3- OPERATIONS PRELIMINARY TO CONSTRUCTION. 204 
 
 such a part of the stump of the tree as to lead to the presumption that the 
 tree was started on the line. 
 
 The ownership of a tree whose trunk is cut by the dividing-line of two 
 estates should be determined by deciding the question, ''Upon whose land 
 did the tree start to grow ? " If the tree started upon the land of A and has 
 increased in size until the trunk has encroached upon the land of B, his 
 neighbor, it is submitted that it should always belong to A, who owned the 
 treet when it started, the same as do the overhanging branches. It makes a 
 difference whether the tree grows to the line or the line comes to the tree. 
 Trees that stand upon the line as it is run (surveyed) are usually described 
 as monuments or landmarks, in which case neither party can cut them down. 
 They then become line-trees strictly, and the parties are either tenants 
 in common or each is the owner of an undivided half. 
 
 When trees are planted upon, or near to, the dividing-line of two estates 
 they must necessarily penetrate the soil of the adjoining owner and overhang 
 his land. The roots must therefore take nourishment from the soil, and the 
 branches and leaves shut out the sunlight from that part of the estate which 
 they overhang. If the tree bear fruit, the question arises as to whom that 
 fruit belongs and who may gather it. In the case of a "line-tree," it is 
 pretty well settled, not only in the United States, but in England, and by the 
 civil law, that the two adjoining owners are joint owners of the tree and there- 
 fore of the fruit. They are the common property of both. l 
 
 313. Ownership of Trees Growing Near Boundary -line. The earlier 
 cases held that when a tree growing upon the land of one man, whatever may 
 be its distance from the line, extends any portion of its roots into the land of 
 another, they thereby become tenants in common of the tree. An early 
 Connecticut case questioned such a doctrine, 2 because there were insur- 
 mountable difficulties when the principle was reduced to practice. That case 
 held that it was not a question whether the branches and roots do or do not 
 overhang and penetrate the land of the adjoining owner; that it was the fact 
 alone which creates a tenancy-in-common ; that if such tenancy-in-common 
 existed, it was diffused over the whole tree, and that each owned a propor- 
 tionate share of the whole. The question was, in what proportion did the 
 parties hold, and how were the shares to be determined ? What part of its 
 nourishment did the tree derive from the soil of the adjoining proprietor ? 
 On what principle was the account to be settled between the parties ? If the 
 line should run through a forest or grove, what rule was to apply to those 
 trees growing so near the line as to extend some portion of their roots across 
 it? How would a man know whether he was the exclusive owner of trees 
 growing entirely on his land, but near the line ? And how would he know 
 whether he could safely cut them without subjecting himself to an action ? 
 
 v. Belts (Del.), 39 Atl. Rep. v. Beavr, 25 N. Y. 123. 
 595; Hunt v. Taylor, 22 Vt. 556; Carroll 2 Lyman v. Hale, n Conn. 177, 182. 
 
 v. Smith (Md.), 4 Har. & J. 128; Dubois 
 
2O5 PROPERTY RIGHTS DEFINED BY BOUNDARY LINES. 314. 
 
 Such a doctrine has long since been overthrown, and it is well settled now 
 that a tree is wholly the property of him upon whose land the trunk stands. 1 
 It also seems to be well settled that a tree standing directly upon the line 
 between adjoining owners, so that the line passes through it, is the common 
 property of both parties, whether marked or not, and that trespass will lie if: 
 one cuts or destroys it without the consent of the other. 2 
 
 314. Liability for Destruction of Line-trees. While the liability of an 
 owner who has destroyed a line-tree is universally recognized, yet it is not 
 well settled that the two adjoining owners are tenants in common. The 
 courts frequently evade the question by holding that it is not necessary to 
 determine the matter. 3 The essence of a tenancy-in-common is a joint interest 
 in each and every part of the property, and it is pretty well understood that 
 this principle does not apply to artificial objects placed upon a boundary-line: 
 by the hand of man, such as a wall, a fence, or a building. In regard to 
 natural objects, as trees, it might be inconvenient for the parties to avail 
 themselves of their property unless they were regarded as tenants-in-common. 
 One might desire his part of the timber of the trees, while the other preferred 
 that they should remain standing. If the ownership be a tenancy-in-common, 
 the remedy is clear; a partition or sale of the trees might be ordered. In the 
 country or on a suburban place the destruction or maintenance of the trees 
 presents a different problem from what is presented in the city, where every 
 available foot, or inch even, of ground is required for .improvement. If the 
 property in line-trees be not regarded as a tenancy-in-common, the remedy is. 
 not clear, and in cases where the boundary-line runs through a forest it is 
 more convenient to hold the parties to be tenants-in-common. Whichever 
 rule is held, a remedy exists where the trees are destroyed by either one of the 
 parties ; but if the trees are destroyed by outside trespassers and one only of 
 the adjoining owners wishes to withdraw his interest in the property, the rule 
 applied makes a difference. 4 
 
 Either of the owners of adjoining lots may lop off the branches or roots 
 extending from the trunk of such line-tree over or into his land. 5 Where the 
 restraining of a person from removing a part of the trunk of the tree upon 
 his own land would deprive him of the opportunity to build as he desired, and 
 would produce a greater irreparable injury than would be produced by the 
 removal of such pan and the destruction of the life of the tree, an injunction 
 will be refused and the parties left to settle their rights in an action at law. 
 A person cannot prevent his neighbor from building to the dividing-line of 
 adjoining lots, though such building interfere with a trunk of the tree and the 
 
 1 Lyman v. Hale, n Conn. 177; Skin- 3 Relyea v. Bacon, 34 Barb. 547; Dubois 
 
 ner v. Wilder, 38 Vt. Rep. 115; Dubois v. v. Beaver, 25 N. Y. 123. 
 
 Beaver, 25 N. Y. 123; Hoffman v. Arm- * See Tyler on Boundaries 324. 
 
 strong, 46 Barb. 337. 5 Robinson v. Clapp, 65 Conn. 365; 
 
 2 Griffin v. Bixby, 12 N. H. 454; Hoff- Grandona v. Loodal, 70 Cal. 161. 
 man v. Armstrong, 46 Barb. 337. 
 
3*6. OPERATIONS PRELIMINARY TO CONSTRUCTION. 206 
 
 free access of light and air to the windows of plaintiff's house, nor is it mate- 
 rial that he has offered to buy the land and to pay therefor the sum at which 
 it should be appraised by persons to be selected by the parties. 1 
 
 315. Property in Overhanging Fruit of Trees. When a trunk of a tree 
 stands wholly upon the land of one owner the. tree belongs exclusively to 
 him even though the roots grow into, and the branches overhang, the land of 
 his neighbor. The title to the property is well settled, and the rights of the 
 two neighbors to appropriate the fruit of such trees or to remove any part of 
 such trees is equally well settled. The fruit of a tree is as much a part of a 
 tree as are the leaves and branches, and it is therefore held that the fruit of a 
 tree belongs to the party on whose land the trunk or stump stands. 2 
 
 An adjoining owner will be liable in trespass for gathering the fruit which 
 overhangs his land, or for preventing the owner of the tree from gathering it, 
 provided the latter can do so without committing a trespass. If the owner 
 uses force to prevent the owner of the tree from gathering the fruit which 
 overhangs his land, he may be held liable in damages for any harm done, as 
 for assault and battery. 3 
 
 Whether or not the owner of the tree can pick the fruit from the overhang- 
 ing branches is a question about which there is a difference of opinion. 
 Technically it is an invasion of the adjoining owner's rights, but by allowing 
 the branches and the fruit to remain overhanging his land the latter may be 
 held to have waived his technical rights. The early English cases held that 
 the owner of the fruit might go and take it if he made no longer stay than was 
 convenient and did no apparent damage. 4 The same rule was applied as 
 where a tree is blown down by the wind. The owner may not enter without 
 such special circumstances to justify it, and should not enter without previous 
 request to the one in possession of the land upon which the fruit or tree has 
 fallen. 5 
 
 316. Lopping or Cutting Overhanging Branches. Although such is the 
 law, it does not follow that the owner of land is obliged to have it burdened 
 by the overhanging branches or the penetrating roots of his neighbor's trees. 
 If they prove to be a nuisance, he may have an action for damages and it may 
 be abated. 6 The owner of the adjoining land whose lot is overhung by the 
 branches may lop off or clip the limbs and branches that so overhang to the 
 extent that they overhang and no more ; 7 and he may cut the roots that pene- 
 trate his soil, if they cause damage 8 or are a nuisance. 9 After lopping or 
 
 1 Robinson v. Clapp, 67 Conn. 538. Miller v. Fawdrye, Popham 163; Latch. 
 See also Relyeaz/. Beaver (N.Y.), 34 Barb. 120; Smith v. Kinrick, 7 Com. Bench 515. 
 547. 5 Anthoney v. Haney, 8 Bing. 186; 
 
 2 Lyman v. Hale, n Conn. 177; Skinner Newkirk v. Sabler (N. Y.), 9 Barb. 655. 
 v. Wilder, 38 Vt. 115; Hoffman v. Arm- 6 Aiken v. Ketchum, 39 Barb. 400. 
 strong, 48 N. Y. 201. 7 Grandona v. Loodal, 70 Cal. 112. 
 
 'Hoffman v. Armstrong, 46 Barb. 337, B Lons'dale v. Nelson, 2 B. & C. 302. 
 
 48 N. Y. 201. 9 Tissot v. Gt. So. Tel. Co., 39 La. Ann. 
 
 4 Viner's Abridgment, tit. Trespass; 996. 
 
207 PROPERTY RIGHTS DEFINED BY BOUNDARY LINES. 317- 
 
 trimming off such limbs and branches it seems that he may not carry them, 
 and the fruit they bear, away and convert them to his own use; 1 and if the 
 owner prune his trees, he cannot enter and take away the limbs that fall upon 
 the adjoining land if by using due care their falling might have been prevented. 
 He should plead that he did his best to hinder them from falling. 2 
 
 Whatever unlawfully annoys or injures another may be abated, taken 
 away, or removed by the party injured so long as he commits no riot in doing 
 so. If the branches of a neighbor's trees spread over his land, they may be 
 cut down. They may not be cut in anticipation that they will eventually 
 become a nuisance. The same doctrine applies to roots penetrating neigh- 
 boring soil. A Virginia creeper which extends itself over the side of a house 
 gives the owner a right to cut it down and clear it from his house as a 
 nuisance. He should use no greater force and violence, and do no greater 
 damage, than is necessary. 3 In abating a nuisance such as arises from over- 
 hanging branches care must be taken to cut off only so much as actually 
 overhangs the land of the party injured. 
 
 The permitting of branches to overgrow and overhang a neighbor's land, 
 or the roots to penetrate his soil, is an unequivocal act of negligence, and is 
 a nuisance to the servient estate. It is a nuisance from omission, in distinc- 
 tion from a nuisance by an act of commission. The latter class of nuisances, 
 which are committed in defiance of the person injured, may be abated by the 
 party himself without notice to the person committing them; but in nuisances 
 from omission the party who permits their existence should be given notice of 
 them, that he may have an opportunity to remove the cause himself before 
 another intrudes upon his land to abate it. To justify an entry upon the land 
 of another in such a case notice should be given of the nuisance and a demand 
 that it be abated. The security of lives or the protection of property might 
 sometimes require prompt and immediate action that would excuse a trespass, 
 and that would not allow time to call upon the property owner to remedy it. 
 In such a case the abatement of a nuisance from omission would be justified. 
 In all cases of private nuisance, so called, the injured person may proceed by 
 a suit to have it abated. 4 
 
 Some of the cases hold that to give a person the right to abate a private 
 nuisance he must have suffered injuries to such an extent as to give him a 
 right of action. If he attempts to a'bate it, he acts at his peril, and to justify 
 his act the thing must be a nuisance, and not merely an apprehended 
 nuisance. He must not go beyond what is necessary to protect his rights. 5 
 
 317. Actions for Injuries from Overhanging Trees. To recover in an 
 action against an adjoining owner who allows the limbs of his trees to over- 
 Skinner v. Wilder, 38 Vt. 115. *Tyler on Boundaries 327, 328; 3 
 2 Lambert v. Dessey, Ld. Raym. 422, Blackstone's Comm. 5; 16 Amer. & Eng. 
 467. Ency. Law 989, 990. 
 
 8 Tyler on Boundaries 326, 237. 5 16 Amer. & Eng. Ency. Law 989. 
 
3 ! 9- OPERATIONS PRELIMINARY TO CONSTRUCTION. 2O8 
 
 hang one's lands there must be some real sensible damage shown, as where 
 the tree is noxious or poisonous in its nature. 1 The fact that berry-bushes 
 are shaded and bear less fruit than others that are more exposed will, it seems, 
 not be sufficient injury to sustain an action. The remedy of the injured party 
 is to lop the branches. 3 
 
 318. Trees that Overhang a Public Way. If a landowner permit his 
 trees to overhang a highway so as to inconvenience the public, it is a commcn 
 nuisance and the branches may be lopped off so that they shall not annoy 
 passers-by. Any one may justify the removal of such a common nuisance, 
 because imjuries of this kind, which obstruct and annoy the public and as in- 
 terrupt daily convenience and usdl, require an immediate remedy and cannot 
 wait for the slow machinery of the courts. 3 However, a contractor who has 
 undertaken a public improvement, such as stringing a fire-alarm telegraph for 
 a municipal corporation, has no right to invade the premises of an abutting 
 owner and cut off limbs that overhang the sidewalk and which did not 
 obstruct the use of the sidewalk, and when the posts and wire could have been 
 located elsewhere. 4 
 
 319. Trees Growing in Public Ways. As hereinafter explained,* the 
 title to the soil of a public way is usually in the abutting owner, and he is 
 entitled to the grass, timber, etc., that may grow upon its surface. 5 He may 
 plant shade-trees in the highway if the public uses are not interfered with or 
 the way obstructed. If any person unnecessarily or without authority inter- 
 feres with them or destroys them, such person will be liable to the abutting 
 owner in trespass. 6 He may be restrained by injunction from removing them. 
 The fact that it will cost less to build a bridge upon one side of a street is 
 not sufficient reason to warrant a road commissioner building it there when 
 it will destroy the abutting owner's hedge and trees. Such an act may be 
 enjoined." The right of public officers to trim, remove, or destroy shade-trees 
 on highways against the will of the abutting owner depends upon the neces- 
 sity, which is a question for the jury. 8 Such removal must be demanded by 
 the wants of the public travel and convenience, the determination of which 
 may be reviewed and controlled by the court. 9 A railroad company, however, 
 
 1 Crowhurst v. Amersham Burial Bd., & Norm. 424. 
 
 4 Exch. Div. 5. But see Wilsons. New- * Tissot v. Gt. So. Tel. Co., 39 La. 
 
 berry, L. R. 7 Q. B. 31. Ann. 996; Hodgins v. Toronto, 19 Out. 
 
 2 Countryman v. Lighthill (N. Y.), 24 App. 537. 
 
 Hun 405. 5 26 Amer. & Eng. Ency. Law 560. 
 
 3 In England this rule has not been fol- 6 Clark v. Dasso, 34 Mich. 86; Graves 
 lowed in cases where a fence belonging v. Shattuck, 35 N. H. 257; Weller v. Mc- 
 to a railway company obstructed a Cormick, 52 N. J. Law 470; People's Ice 
 thoroughfare. It was held, there, that Co. v. Steamer Excelsior, 44 Mich. 233. 
 the public had no right to demolish it, 7 Quintont/. Burton, 61 Iowa 471; Crim- 
 but that a mandamus might be applied son v. Deck, 84 Iowa 344. 
 
 for, or some other remedy sought. 8 Winter v. Peterson, 24 N. J. Law 524. 
 
 Wyatt v. Gt. W. Ry., 6 Best & Smith 709; 9 Bills v. Belknap, 36 Iowa 583. But 
 
 Ellis v. Lond. & S. W. Ry. Co., 2 Hurlst. see Chase v. Oshkosh, 81 Wis. 313. 
 
 * See Sees. 441-446, infra. 
 
2O9 PROPERTY RIGHTS DEFINED BY BOUNDARY LINES. 32O. 
 
 was held to be the sole judge of the necessity of removing ornamental trees 
 from its right of way. 1 If the title to the street be in the city, trees growing 
 in front of a lot may be removed by the municipal authorities * without being 
 liable to an action. Such trees may be removed in order to grade the street; 3 
 and the city may grant a .telephone company a license to clip the branches 
 without giving the abutting owner a cause for complaint. 4 Laws passed for 
 the protection of shade-trees in the street and prohibiting their mutilation or 
 removal have been held not to include the owner. 5 
 
 320, Measure of Damages for Destruction of Trees. A landowner 
 may obtain damages for the destruction of his trees, and the measure of such 
 damages is usually the value of the trees. If the trees are specially valuable to 
 an estate, as ornamental, shade, growing, or fruit trees, then the measure of 
 damages is the amount that the value of the land has been diminished. If 
 the land is also injured, such injury may also be considered. 
 
 It does not matter how the trees are destroyed, whether by chopping and 
 sawing, or by fire, or by drainage, or by chemical dust and vapors, or by oil 
 and gas negligently allowed to permeate the soil. 6 The measure of damages 
 is not the cost of replacing the trees, and the care and labor bestowed on the 
 trees destroyed ; 7 nor is it the value of the trees for transplanting, as shade and 
 ornamental trees, 8 but the value of the destroyed trees to- the, owner of the 
 land at the date of their destruction. 9 In cases where timber trees have 
 been cut from forests the measure of damages is usually the value of the 
 trees taken or destroyed, and nothing more. This is so held for the reason 
 that the realty is not damaged, but it may be a benefit to the land to 
 have trees that have reached maturity cut to make room for the younger 
 growth. 10 
 
 To recover full damages for the trees cut and any injury that the land has 
 suffered the action should be for trespass qu&re clausum. In an action for 
 trover, recovery will be limited to the value of the trees. Replevin may also 
 be maintained for trees severed from the land, and the landowner's right to 
 pursue his property is unaffected by any change made in its shape or form if 
 it can be identified. If the trees were cut willfully and wantonly no allow- 
 ance will be made for the increased value of the timber, which resulted from 
 the time, labor, and skill bestowed upon it. 11 
 
 1 Brainard v. Clapp (Mass.), 10 Cush. 6. 7 Stoner v. Texas, etc., R. Co., 45 La. 
 
 2 Gaylordz/. King, 142 Mass. 495. Ann. 115; Whitbeck v. N. Y. Cent. R. 
 
 Castleberry v. Atlanta, 74 Ga. 164. Co., 36 Barb. (N. Y.) 644. 
 
 4 Hodgins v. Toronto, 19 Ont. App. 8 Fremont, etc., R. Co. v. Crum, 30 
 537. But see Clay v. Postal Tel. Co., 70 Neb. 70. 
 
 Miss. 406; Hoyt v. So. N. E. Teleph. Co., 9 Mitchell v. Bellingsley, 17 Ala. 391. 
 
 60 Conn. 385. 10 See 26 Amer. & Eng. Ency. Law 564. 
 
 5 Lancaster v. Richardson, 4 Lans. (N. u Heard v. James, 49 Miss. 236; Single 
 Y.) 136. But see contra in Baker v. Nor- v. Schneider, 24 Wis. 299; Hungerford 
 mal, 81 111. 108, an ordinance prohibiting . v. Redford, 29 Wis. 345; Herdic v. Young, 
 the hitching of horses to shade-trees. 35 Pa. St. 176. 
 
 6 26 Amer. & Eng. Ency. Law 563-567- 
 
321. OPERATIONS PRELIMINARY TO CONSTRUCTION. 2IO 
 
 321. Rights of Landowner to Lateral Support for his Land by the Land 
 of his Neighbor. At common law every person in making earthworks on, 
 or in, his own land, whether by surface excavations or underground pits, is 
 bound so to work as not to cause any subsidence of the original soil of his 
 neighbor. In other words, every man is entitled to have his land in its 
 natural state supported by the adjoining land of his neighbor. It is not a 
 question whether the workings are skillfully or unskillfully conducted; the 
 right to support for the soil itself is an absolute right which the adjoining 
 owner is not entitled to infringe, whether by skillful workings or otherwise. 1 
 
 The fact that the land of two neighbors is higher than the adjoining streei 
 will not justify either in removing the support of the other even though it is 
 made for the purpose of bringing the land to the level of the street.^ Even 
 when adjoining lands are upon a slope or hillside, the higher land is still 
 entitled to the support of the lower. The lower owner may not excavate so 
 near to the boundary-line as when two lots are at the same grade. 3 
 
 Therefore when it was alleged that defendant was possessed of a certain 
 sewer which discharged into and caused to be deposited in the river sewage 
 which it became the city's duty to remove, to prevent it from interfering with 
 navigation, and that, in order to avoid the expense of frequent removals, and 
 to provide a basin in which the same might settle, the defendant city negli- 
 gently dug in and excavated the river-bed around and near the foundations of 
 plaintiff's building in such manner as to deprive the land of plaintiff of its 
 natural support, and to cause it to move outward into the excavation made, 
 carrying with it the piles sunk therein, and causing them to incline and bulge 
 outward, it was held that a good cause of action was stated. 4 
 
 322. Landowner may Make Improvements Owner must Give Notice. 
 The common law guarantees to adjoiners the lateral and subjacent support 
 which his land receives from the adjoining land, but this right is subject to 
 the right of the adjoining owner to make excavations for construction if he 
 use ordinary care to sustain the land of the other and give reasonable previous 
 notice of his intention. 5 One who undertakes improvements on his land 
 which endanger the structures on his neighbor's land is bound to give notice t 
 of the intended improvements, and to use ordinary care and skill in making 
 them. 6 
 
 California, Idaho, Montana, North Dakota, Oklahoma, and South Dakota 
 have statutes which provide that each coterminous owner is entitled to the 
 
 v. Bower (Minn.), 59 N. W. 3 Weir z>. Bell's App., ST Pa. St. 203. 
 
 Rep. 631; Stimmel v. Brown (Del.). 7 4 Pomroy v. Granger (R. I.). 29 Atl. 
 
 Houst. 219; accord, Spohn v. Dives (Pa. Rep. 690. ' 
 
 Sup.), 34 Atl. Rep. 192; Farrand v. Mar- 5 Sullivan v. Zeiner (Cal.). 33 Pac. Rep. 
 
 shall, 21 Barb. 409, reviewing many cases; 209; Washburn on Easements 453; Mas- 
 
 Bohrer v. Dienhart H. Co. (Ind. App.), sev v. Goyder, 4 C. & P. 161. 
 45 N. E. Rep. 668; Bouquois v. Monte- 6 Lasala' v. Holbrook (N. Y.). 4 Paige 
 
 leone (La.). 17 So. Rep. 305. 169; English Cases in 12 Amer. & Eng. 
 
 2 Stimmel v. Brown, 7 Houst. 219. Ency. Law 938. 
 
211 PROPERTY RIGHTS DEFINED BY BOUNDARIES. 323. 
 
 lateral and subjacent support which his land received from the adjoining land, 
 subject to the right of the owner of the adjoining land to make proper and 
 useful excavations for the purposes of construction by using ordinary care and 
 skill and taking reasonable precautions to sustain the land of the other, and 
 by giving previous reasonable notice of intention to make excavation. 
 
 In South Dakota, where the statute laws require an adjoining owner to 
 give previous reasonable notice of his intention to make excavations on his 
 land, it has been held that if the adjoining owner had actual knowledge of the 
 intention of his neighbor to make an excavation on his land in time to allow 
 him to protect his property, such knowledge dispensed with a formal notice. 
 The question might arise whether or not an application and issuing of a 
 license to build would be such actual notice or knowledge. 1 
 
 The rule that a person excavating with due care on his own soil will not 
 be liable for injuries thereby occasioned to an adjoining owner has no applica- 
 tion to a case where the excavation is effected by blasting out rock with an 
 explosive so powerful as to break the windows, loosen the walls, and injure 
 the furniture of adjoining owners by atmospheric concussion. 2 
 
 323. Landowner is Entitled to Support of Land Alone. A landowner is 
 entitled to lateral support from a lot of an adjoining owner only for the soil 
 of his lot in a natural state, and not for a building placed on the land. 3 Such 
 right to lateral support does not extend to the support of any additional 
 weight or structures. 4 
 
 A landowner can require his neighbor to furnish only so much lateral 
 support as is requisite to sustain the land in its natural undisturbed state. If 
 an adjoining owner excavates nearer the boundary than such a limit, he is 
 bound to furnish support to the land by artificial means, as by a retaining 
 wall. If such support is furnished, the excavation may be made up to the 
 dividing-line. The artificial support is then substituted for the natural sup- 
 port of the soil, and it may be of any material provided it be sufficient for the 
 purpose and it is continued so as to maintain the land in its proper position. 5 
 It is not sufficient to escape liability for an injury caused by insufficient sup- 
 port to show that the support furnished was reasonable or customary, or that 
 the excavations were made with care and skill. A support must prove 
 sufficient and effectual. 6 
 
 " If a man builds his house at the extremity of his land, he does not 
 thereby acquire any right of easement for support or otherwise over the land 
 
 *Novotny v. Danforth (S. D.), 68 N. W. 409: Novotny v. Danforth (S. D.), 68 N. 
 
 Rep 749. w - Re P- 749; Bohrer v, Dienhart H. Co. 
 
 2 Morgan z/. Bowes (Sup.), 17 N. Y. (Ind. App.), 45 N. E. Rep. 668; Goddard 
 
 Supp. 22. on Easements 31; Pantoh v. Holland, 17 
 
 'Obert ' v. Dunn (Mo.), 41 S. W. Rep. Johns. 92; Humphrey v. Boyden, 12 Q. 
 
 901. B - J 39- 
 
 4 Sullivan v, Zeiner (Cal.), 33 Pac. Rep. 5 Snarr v. Granite C. & S. Co., I Ont. 
 
 209; Thurston v. Hancock, 12 Mass. 221; 102; Weir v. Bell's App., 81 Pa. St. 203. 
 
 Lasala v. Holbrook (N. Y.), 4 Pai^e 169; 6 Jones on Easements, 591. 
 Ferrand v. Marshall 21 Barb. (N. Y.) 
 
 
324- OPERATIONS PRELIMINARY TO CONSTRUCTION. 212 
 
 of his neighbor. He has no right to load his own soil so as to make it 
 require the support of that of his neighbor, unless he has some grant to that 
 effect." 
 
 One who erects a building on the line of his own land is himself in fault 
 if he has increased the lateral pressure so as to prevent the adjoining owner 
 from excavating upon his own land. " A man who builds a house adjoining 
 his neighbor's land should foresee the probable use of the adjoining land, and 
 by convention with his neighbor, or by a different arrangement of his house, 
 secure himself against further interruption and inconvenience." 
 
 An injury done to a building by reason of an excavation upon the adjoin- 
 ing land made with proper care and skill is damnum absque injuria. " While 
 each owner may build upon and improve his own estate at his pleasure, pro- 
 vided he does not infringe upon the natural right of his neighbor, no one can 
 by his own act enlarge the liability of his neighbor by an interference with 
 this natural right. If a man is not content to enlarge his land in its natural 
 condition, but wishes to build upon or improve it, he must either make an 
 agreement with his neighbor, or dig his foundations so deep, or take such 
 other precautions as to insure the stability of his buildings or improvements, 
 whatever excavations the neighbor may afterwards make upon his own land 
 in the exercise of his right," 1 
 
 When, in bringing a street to grade by rilling, the land of the abutting 
 owner is encumbered by the embankments so that the fences and trees are 
 destroyed, the owner may recover damages from the city unless the filling was 
 made by the owner's consent, in which case nothing can be recovered on that 
 account. 2 
 
 324. Statutory Laws in Large Cities. In the cities of New York and 
 Brooklyn (Greater New York) the common-law rule of lateral support has 
 been modified. In 1855 the legislature of the state of New York interposed 
 to regulate the exerci.se, by owners of land, of the right of excavation, and to 
 afford to owners of buildings a new protection against injuries from excava- 
 tions' on adjoining land. By this act (Chap. 6, Laws 1855) it is declared that 
 whenever excavations on any lot in New York or Brooklyn "shall be intended 
 to be carried to the depth of more than ten feet below the curb, and there 
 shall be any party or other wall wholly or partly on adjoining land, and 
 standing upon or near the boundary-lines of such lot, the person causing such 
 excavations to be made, if afforded the necessary license to enter on the 
 adjoining land, and not otherwise, shall, at all times from the commencement 
 until the completion of such excavation, at his own expense preserve the wall 
 from injury, and so support the same by a proper foundation that it shall 
 remain as stable as before such excavation was commenced." 
 
 Under this act it has been held that in order to subject the person making 
 
 1 Jones on Easements, 604. 2 Ludlow v. Troste (Ky.), 45 S. W.. Rep. 
 
 661 [1898]. 
 
213 PROPERTY RIGHTS DEFINED BY BOUNDARIES. $2' 
 
 the excavation to the expense of protecting the adjoining wall, he must be 
 afforded the necessary license to enter the land; that the license must be 
 explicit and sufficient to protect him, and it should be given by all persons 
 who would be injuriously affected by such acts. 1 The act, however, does not 
 require the owner of the adjoining- land to tender a license in order to receive 
 the benefit of the statute, but it requires the party causing such excavation to 
 be made to request permission to enter and proceed with the excavation 
 without injuring the wall. If he fails so to do, he is liable for the damages. 2 
 The adjoining owner is only required to grant such license to enter his 
 premises when requested. 3 
 
 Practically the same law was embodied in the Consolidation Act, Laws 
 1882, chap. 410, sec. 474, amended by Laws 1887, chap. 566, sec. 3, which 
 provide that where an excavation on any land is to be made to the depth of 
 more than ten feet below the curb, and there shall be any wall on adjoining 
 land and standing near the boundary, the person making such excavation ' ' if 
 afforded the necessary license to enter on the adjoining land, and not other- 
 wise," shall preserve such wall from injury. In an action for damages result- 
 ing from a violation of this section, the court refused to instruct that ' ' if there 
 were any defects in plaintiff's building before defendant began to build, and 
 that while defendants were endeavoring to support this building these defects 
 became enlarged and defendants were not guilty of negligence, plaintiff cannot 
 recover. ' ' 3 
 
 This law does not apply to one excavating in a street of New York City 
 under a contract with the municipal authorities. 4 
 
 After the license to enter and make excavation has been granted and the 
 adjoining owner has excavated below the old wall and has inserted needle- 
 beams to sustain it, his right to proceed to build a new wall to the extent 
 that the old wall had been shored up may not be denied by revoking the 
 license to enter and protect the wall. The adjoining owner may enter upon 
 so much of the adjoining lands as is necessary before he can be required to 
 remove the needle-beams from the premises. Whether or not he has the right 
 to proceed and shore up other portions of the adjoining building after his 
 license to enter has been revoked is a question. 5 
 
 Under the New York statute law it has been held that the duty to pre- 
 serve the wall of the adjoiner's building from injury does not cease with the 
 completion of the excavation. It is necessary so to support the wall that it 
 will remain as stable as before. 6 A jury is justified in concluding that there 
 
 1 Sherwood v. Seaman (N. Y.), 2 Bosw. case, note on duty to. protect adjacent 
 127 [1857! wall, and an amendment of statute N. 
 
 2 Dorrity v. Repp, 72 N. Y. 307, re- Y. Consolidation Act, 473, Laws 1892, 
 versing IT Hun 374. ch. 275, p. 543- 
 
 3 Cohen v. Simmons (Sup.), 21 N. Y. 5 Ketchum v. Newman, 116 N. Y. 422. 
 Supp 385 6 Bernheimer v. Kilpatrick, 6 N. Y. St, 
 
 *Jenks 'v. Kenny (Super.), 19 N. Y. Rep. 858. 
 Supp. 243, 28 Abb. N. C. 154- See this 
 
3 2 5- OPERATIONS PRELIMINARY TO CONSTRUCTION. 214 
 
 was direct connection between the injuries to a wall and the act of excavation 
 where the evidence shows that the wall had stood a number of years without 
 settling, and that when a deep excavation was made beside it cracks appeared 
 in the wall and it settled perceptibly toward the excavation. 1 
 
 The common-law doctrine of lateral support has been abrogated in Ohio 
 by Ohio Rev. Stat., sec. 2677, as amended May 9, 1894. a The depth to 
 which an owner may excavate without liability for damages to an adjoining 
 owner, under the Ohio statute allowing twelve feet of excavation, is deter- 
 mined, in the case of lots extending from a higher to a lower street, by 
 measuring from the middle of a slanting line drawn from the curb of the 
 higher to the curb of the lower street. 3 A wall built along the side of a lot 
 by its owner to protect it against an adjoining lot lying higher, when located 
 entirely on the lo.wer lot and away from the boundary-line thereof, may be 
 torn down by its owner and the earth between the wall and the higher lot 
 removed by him. 4 
 
 325. Easement of Extra Support How Acquired. If any structure or 
 extra burden is placed upon the soil, the right of support must be acquired 
 as in other easements. This right may be acquired by grant, express or 
 implied, but it is doubtful if it may be acquired by prescription. All the 
 different methods of obtaining additional support are reducible to one, that 
 by grant, which may be express, implied, or presumed. When the owner 
 of land acquires by grant an easement of support, in addition to that to which 
 the soil is subject by nature, as when it is enlarged by the additional burden 
 of buildings erected upon the land, if the owner has enjoyed the support of 
 the buildings or additional burdens for twenty years, and both parties had 
 knowledge of that support, it is sometimes held that the owner acquires a 
 right to it as an easement, and that the adjoining owner cannot withdraw the 
 support of the structure without being liable in damages for injuries that 
 accrue. In such a case the grant must be a presumed grant. In the absence 
 of express stipulations the grant is implied. Rights of support in such cases 
 are held to have been mutually granted and reserved from the original owner 
 and first grantee, and the second grantee succeeds to such owner's reserved 
 rights. 
 
 " It is assumed as settled that where two or more houses, so constructed 
 as to require mutual support, are conveyed to different owners, or where 
 separate portions of one dwelling become vested in different owners, right of 
 support as incident to the property passes by the conveyance to each grantee 
 unless excluded by the terms of the grant. Easements of this description are 
 acquired by grant, but in considering the conveyance it is to be presumed 
 
 1 Bernheimer v. Kilpatrick, 6 N. Y. St. 3 Elshoff v. Deremo (C. P.), 3 Ohio N. 
 Rep. 858; 12 Amer. & Eng. Ency. Law P. 273. 
 
 939. and cases cited. * Kilgour v. Wolf (C. P.), 4 Ohio N. P. 
 
 2 Hall v. Kleeman (C. P.), 4 Ohio N. P. 183, 6 Ohio Dec. 343. 
 201, 6 Ohio Dec. 323. 
 
215 PROPERTY RIGHTS DEFINED BY BOUNDARIES. 326. 
 
 that the parties intended to preserve the obviously existing relations and 
 dependencies of an estate, and all those instances necessary to the present 
 enjoyment of the thing granted are held to pass. There is an obligation upon 
 each adjacent proprietor in favor of the other beyond what is implied in the 
 maxim which requires every one to use his own so as not to injure his 
 neighbor. The exclusive dominion of each is so far qualified that neither can 
 take away the support of the other, however prudent and careful on his part 
 the act may be." 1 
 
 An easement for the support of a building can only be acquired by an 
 express or implied grant or covenant. "If, at the time of the severance of the 
 land from that of the adjoining proprietor, it was not in its original state, but 
 had buildings standing on it up to the dividing-line, or if it were conveyed 
 expressly with a view to the erection of such buildings, or to any other use of 
 it which might render increased support necessary, there would then be an 
 implied grant of such support as the actual state or the contemplated use of 
 the land would require, and the artificial would be inseparable from, and (as 
 between the parties to the contract) would be a mere enlargement of, the 
 natural conditions. It is, of course, incumbent upon the party who claims 
 the right of support for buildings to prove the contract or grant by which such 
 right was acquired. The presumption is against any right of support for 
 buildings or other structures upon the land." '* 
 
 " A grant made expressly for the purpose of building a house creates a 
 legal easement over the adjoining land retained by the grantor coextensive 
 with the known uses of the grant; and the circumstances that the grant does 
 not notice the intention of building is immaterial in a case where both grantor 
 and grantee are aware of it, affecting at most the grantee's remedy, not his 
 right, relative to such an easement." 3 
 
 326. Easement to Extra Support Acquired by Prescription, It has 
 frequently been held that " a right to lateral support by adjoining land may 
 be acquired by twenty years' uninterrupted enjoyment, for a building proved 
 to have been newly built or altered so as to increase the lateral pressure, at 
 the beginning of that time, and it is so acquired if the enjoyment is peaceable 
 and without deception in concealment, and so open that it must be known 
 that some support is being enjoyed by the building." 
 
 1 Stevenson v. Wallace, 27 Gratt. (Va.) firming 29 L. T. 7. See also Rigby v. 
 77; Pierce v. Dyer, 109 Mass. 374. See Bennett, 21 Ch. D. 559; s. c., 40 L. T. 47; 
 also Story v. Od'in, 12 Mass. 157; Cassel- Murchie v. Black, 19 C. B. (N. S.) 190; 
 bery v. Ames, 13 Mo. App. 575; Charless Caledonian R. Co. v. Sprot, 2 Macq. H. 
 v. Rankin, 22 Mo. 566; McGuire v. L. Cas. 479; Palmer v. Fleshees, I Sid. 
 Grant. I Dutch. (N. J.) 356. Eno v. Del 167; Cox v. Matthews, i Vent. 237; Brown 
 Vecchio, 4 Duer (N. Y.) 53; Lasala v. v. Windsor, I Crompt. & J. 20. 
 Holbrook, 4 Paige (N. Y.) 169; Kieffer v. * Dalton v. Angus, 6 App. Cas. (Eng.) 
 Imhof, 26 Pa. St. 438; City of Quincy 74O, reversing 3 Q. B. D. 85; Hunt v. 
 v. Jones, 76 111. 231; United States v. Peake, I Johns. (Eng.) 705; s. c., 29 L. J. 
 Appleton, i Sumn. (U. S.) 492. Ch. 785; Partridge v. Scott (Eng.), 3 
 
 2 Jones on Easements, 605. Mee. & W. 220; Brown v. Windsor 
 
 3 Robinson v. Grave, 27 L. T. 248, af- (Eng.), i Crompt. & J. 20; Hide v. Thorn- 
 
327- OPERATIONS PRELIMINARY TO CONSTRUCTION, 2l6 
 
 On the other hand, it has been held ; that the erection and maintenance of 
 a structure wholly on one's own land for a long period, is not the basis of a 
 prescriptive grant to have it supported by soil of the adjoining owner, since 
 no injury is inflicted upon the latter by which he could base an action to 
 secure the removal of the building. 1 It is difficult, if not impossible, to apply 
 the doctrine of prescriptive rights to instances of easements, so called, when 
 there is no possession of anything belonging to another, no encroachment 
 upon another's right, no adverse user, in fact nothing done whatever against 
 which another can complain as the adjoining owner, and for- which no action 
 can be brought, there being no remedy existing whereby to prevent such a 
 presumption from arising; as, for instance, in the case of windows overlooking 
 the premises of the adjacent owner. Such a proprietor of the adjoining land 
 would not have any right of action and no claim for damages for the wrong 
 done. He would be forced to build a structure or construct a wall to 
 obstruct the windows, merely to show that he is lord of his own soil, or he 
 might forever lose the right to the full use of his property. 
 
 Every argument advanced against an easement for light and air may be 
 applied with full force to the claim of right by the owner of the building 
 erected on the line of his lot to the lateral support of the adjacent soil, on the 
 ground that his building has been standing there for a given number of years. 
 Neither in the case of a window nor of a building erected up to the dividing- 
 line has the owner committed an act against which his neighbor can protest. 
 He has not touched his property, nor invaded any right, nor given any cause of 
 action. He has a right to use or build on his lot to the furthest limit of his 
 boundary. He has only done this, and never has had any use or possession 
 or enjoyment of any right, corporeal or incorporeal, belonging to another to 
 which objection could be made in any form, and it would therefore be a mis- 
 use, as well as an abuse, of the terms " license," " grant," and "acquies- 
 cence " to say that he had acquired a right by means thereof from the owner 
 of the adjacent lot. 2 
 
 Neither have the owners of ancient buildings which adjoin each other any 
 reciprocal easement of support from each other's buildings; but either may 
 remove his own building without liability for damage resulting to the other, 
 providing he gives proper notice of the intended removal, and uses reasonable 
 care and caution not to injure the wall of the remaining building. 3 * 
 
 327. In Making Improvements on One's Land the Owner must Exercise 
 Care. An owner of land who excavates to a depth lower than the foundation 
 
 borough (Eng.), 2 Car. & Kir. 250. But 2 Watts 327, 460; i Amer. Law Review 
 
 see Kilgour v. Wolf (Com. PL), 4 Ohio 10; Solomon v. Winters Co. (Eng.), 4 H. 
 
 N. P. 183, an American case. & N. 585. And see Gillmore v. Driscoll, 
 
 Sullivan v. Zeiner (Cal.), 33 Pac. Rep. 122 Mass. 199; Tunstal* v. Christian. 80 
 
 209; Kilgour v. Wolf (Com. PL), 4 Ohio Va. i; Napier v. Bulwinkel (S. C.), 5 Rich. 
 
 N. P. 183. 311; Jones on Easements, 606. 
 
 2 Trippe, Justice, in Mitchell v. Mayor 3 Jones on Easements, 607. 
 of Rome, 49 Ga. 19; Hoy v. Sterrett (Pa. ), 
 
 * See Sec. 335, infra. 
 
2I/ PROPERTY RIGHTS DEFINED BY BOUNDARIES. 327. 
 
 of a building on the adjoining lot, having failed to notify the owner of the 
 building to protect his property, will be liable for the fall of the foundation- 
 wall if it is caused by failure to do anything which ordinary care and diligence 
 in such operations point out as necessary to protect it, but will not be liable 
 if the fall is caused by the wall's own insufficiency. 1 It is necessary that the 
 house and its foundations should have been properly constructed. 2 If not so 
 built, and if, by reason of defective materials or construction, the excavation 
 on adjacent land caused it to fall, the owner of the land making the excava- 
 tion will not be liable. 3 So long as the excavation does not extend beyond 
 the owner's land, and is not negligently or unskillfully made, any injury to 
 adjacent owners must be borne by such owners. The excavation must be 
 such as would not have caused any appreciable damage to the adjacent land 
 in its natural state. 
 
 It is not enough merely to give notice; the law requires the landowner to 
 exercise a reasonable degree of care and skill. If the injury result from the 
 negligent, unskillful, and improper manner of doing the work (making the 
 excavation) the owner will be liable. 4 
 
 In some states it is held that if the structure has been erected and suffered 
 to remain for the full period of time required to create a prescriptive right and 
 to enjoy the support of the soil of the adjacent owner, then the latter may 
 not disturb its foundation by digging within his own lot without adopting 
 reasonable and proper precaution to prevent any injury to such house. These 
 decisions for the most part are in cases where the two adjoining owners have 
 acquired their land from the same grantor, or where both lots were formerly 
 owned by one of the adjoining owners. 5 
 
 Where two houses have been built together in such a manner as obviously 
 to require mutual support, and one of them has been conveyed, there is both 
 an implied grant and an implied reservation of mutual support of the two 
 houses, so that the owner of one cannot remove it without protecting the 
 other by some adequate support. 6 In such cases it is presumed that the 
 grantor conveyed to the adjoining owners the right of lateral support. 
 
 1 Spohn v. Dives (Pa. Suo.), 34 Atl. Rep. G. 761 ; Peyton v. Mayor (Eng.), 9 Barn. 
 192; Clemens v. Speed (Ky.), 19 S. W. & Cress. 725; Walters v. Pfeil (Eng.), I 
 Rep. *6o. But see Cohen v. Simmons Mood & Mlk. 362; Massey v. Gayder, 4 
 
 (Sup.), 21 N. Y. Supp. 385- Car - & P - l61 ' Lasala v ' H ? lb x r T k < N ' 
 
 2 Richart v. Scott (Pal), 7 Watts 460. Y.), 4 Paige 169; Louisville & N. R. Co. 
 3 Richart v. Scott (Pa.), 7 Watts 460. v. Bonhays (Ky.), 21 S. W. Rep. 526; 
 
 But see Cohen v. Simmons (Sup.), 21 N. Watson Lodge v. Drake (Ky.), 29 S. W. 
 
 Y. Supp. 385. Rep. 632: Leavenworth Lodge v. Byers 
 
 4 Dodd v. Holme, I A. & E. 493: Foley (Kan.), 38 Pac Rep. 26r. 
 
 v. Wyeth,2 Allen 131: Pantonr/. Holland, 5 Lasala v. Holbrook (N. Y.), 4 Paige 
 
 17 Johns. 92; Charles v. Rankin, 22 Mo. 169. 
 
 573: Shrieve v. Stokes, 8 B. Mon. 453; 'Jones on Easements. 605; Webster 
 
 McGuire v. Grant, I Dutch. 356: Sullivan v. Stevens, 5 Duer 553; Enor. Del Vecchio, 
 
 v. Zeiner (CaU, 33 Pac. Rep. 209. And 4 Duer 53; Richards v. Rose. 24 E. L. & 
 
 see Richardson v. V. C. R. Co., 25 Vt. 465, Eq. 406; s. c., 9 Exch. 218; Solomon v. 
 
 471; Washburn's Easements, ch. 4. sec. Vintner. Co., 4 H. & N. 598. 
 i; Bradley v. Christ's Hosp., 4 Mann. & 
 
328. OPERATIONS PRELIMINARY TO CONSTRUCTION. 2I& 
 
 These cases must be distinguished from those where one of two persons 
 owning two adjoining vacant lots, built a structure upon his lot. He can 
 acquire no rights to lateral support for such structure in the lot of his 
 neighbor independent of a grant, nor will any length of time furnish evidence 
 of such a grant. l 
 
 328, Notice to Neighbor of Excavation should be Given. A landowner 
 who excavates for a cellar on his land, using ordinary care and skill, after due 
 notice to the adjoining owner, is not liable to the latter, although in digging 
 on his own land he digs so near the foundation of such adjoining owner's 
 house as to cause it to settle or fall. 2 If notice of a contemplated excavation 
 has been given, the owner making the excavation is bound only to a reason- 
 able degree of care and skill. 3 In excavating he has a right to go below an 
 adjacent owner's foundation-wall, even though it is reasonably certain that 
 such foundation-wall will be endangered thereby; and after giving due notice 
 to such adjacent owner, the person excavating is chargeable only with reason- 
 able care; it being the duty of the adjacent owner to use the necessary 
 appliances to protect his building. 4 On the other hand, an adjoining owner 
 will not be restrained from placing his footing-stones on a higher level than 
 his neighbor's. 5 
 
 Where the owner or tenant of a building has knowledge that an adjoining 
 landowner intends and is proceeding to excavate on his land, he must take 
 any precautionary measures necessary to prevent damage to the building by 
 the mere making of such excavation in an ordinarily careful manner, but he 
 need not guard against damages resulting from negligence. 6 
 
 Where one of two adjoining landowners has built a cellar-wall on the line, 
 leaving some rocks projecting over, on notice that the other is to excavate he 
 is bound to shore up and protect his property. Not having done so, he 
 cannot recover for the caving thereof, the other having used ordinary care in 
 excavating and breaking off the projecting rocks. 7 
 
 329, Remedy for Injury to Support, The remedy for violating the right 
 to lateral support is in most cases an action for damages. An injunction will 
 be granted only in cases where a serious injury is imminent. 8 An injunction 
 has been granted where the plaintiff had built a retaining-wall to support the 
 defendant's adjoining lot though the lot was built upon the defendant's land, 
 he having agreed to furnish the grounds if the plaintiff would build a wall. 9 
 
 A person in possession of lands is entitled to an injunction to prevent any 
 
 1 Washburn on Real Property (sd ed.) 5 Graves v. Mattison (Vt.), 32 Atl. Rep. 
 
 334; Peyton v. Mayor of London, 9 B. & 498. 
 
 C. 725; Napier v. Bulwinkle, 5 Rich. 311. 6 Behrer v. Dienhart Harness Co. (Ind. 
 
 2 Obert v. Dunn (Mo.), 41 S. W. Rep. App.), 49 N. E. Rep. 296 [1898]. 
 
 901. See Clemens v. Speed (Ky.), 198. 7 Lapp v. Guttenkunst, 44 S. W. Rep. 
 
 W. Rep. 660. 964. 
 
 3 Block v. Haseltine (Ind. App.), 29 N. 8 McMaugh v. Burke, 12 R. I. 499; 
 E. Rep. 937. Trowbridge v. True, 52 Conn. 190. 
 
 4 City of Covington v. Geylor (Ky.), 19 9 Cronsdale v. Lanigan (Sup.), 13 N. Y. 
 S. W. Rep. 741. Supp. 31 [1891]. 
 
219 PROPERTY RIGHTS DEFINED BY BOUNDARIES. 330. 
 
 excavation on neighboring land which will cause subsidence or destruction 
 of the highway in front of his premises, or take away the lateral support of 
 the soil in its natural state, without the burden of any buildings upon it, and 
 also upon a proper showing to injunctive relief during the pendency of the 
 action. l 
 
 330. Measure of Damages for Loss of Support, The measure of damages 
 for the withdrawal of lateral support of land is the diminution of the value of 
 the land caused by the fall of the soil. 2 It is the actual damage to the land 
 by the loss of and injury to the soil alone, and is neither the cost of restoring 
 the land to its former condition nor its diminished market value. 3 The 
 damages have been confined to the lot alone, independent of the buildings 
 thereon. 4 
 
 In Delaware, where the owner of a city lot excavated along the division- 
 line for the purpose of reducing the level of his lot to the grade of the street, 
 causing plaintiff's lot to cave in, it was held that plaintiff might recover the 
 amount required to restore his property to its former condition, with as good 
 means of lateral support. 5 The measure of damages is not the depreciation 
 in value by reason of the existence of the excavation of the defendant's land, 
 but the diminution in the value of the land by reason of the falling, caving, or 
 washing of the soil as the natural result of removing its lateral support. 6 If 
 the plaintiff would recover special damages, as for the obstruction of drains or 
 destruction of a fence, such injuries must be specially alleged, and their value 
 shown, to entitle plaintiff to recover therefor. 5 The fact that the building 
 had been condemned by the building inspector does not prevent plaintiff from 
 recovering for such injury. 7 
 
 The right to lateral support is not an absolute right irrespective of the 
 element of damages; and if the support be disturbed, it is not a cause of 
 action unless there be appreciable damages. A man may make excavations 
 upon his own land the same as he may exercise any other act of ownership, 
 and it becomes a tort only when it injures his neighbor, which gives rise to a 
 cause of action. There is no right of action unless the soil is disturbed, even 
 though the land presents an unsightly appearance in consequence of the 
 excavation. 8 
 
 To give a good cause of action it is only necessary to show a neglect to 
 furnish proper support to the land so as to prevent its caving in. 9 To make 
 
 1 Finegan v. Eckerson, 52 N. Y. Supp. Rep. 809. But see contra, if defendant 
 993 [1898]. was negligent, Louisville & N. R. Co. v. 
 
 2 Shultz v. Bower (Minn.), 59 N. W. Rep. Bonhayo (Ky.) 21 S. W. Rep. 526. 
 
 631; McGuire v. Grant (N. J.), i Dutch. 5 Stimmel v. Brown (Del.), 7 Houst. 219. 
 
 356; McMaugh v. Burke, 12 R. I. 499; 6 Schultz v. Bower (Minn.), 66 N. W. 
 
 Trowbridge v. True, 52 Conn. 190. Rep. 139. 
 
 3 McGettigan v. Potts (Pa. Sup.), 24 7 Bonquois v. Monteleone (La.), 17 So. 
 
 Atl. Rep. 198; White v. Dresser, 135 Mass. Rep. 305. 
 
 150. 8 Williams v. Kenney, 14 Barb. 629. 
 
 4 Conboy v. Dickinson (Cal.), 28 Pac. 9 Jones on Easements, 588. 
 
33 1 - OPERATIONS PRELIMINARY TO CONSTRUCTION. 22O 
 
 a case, one need show only the making of the excavation, and the subsequent 
 injury to the adjoining land by reason thereof. It is not necessary to show 
 that the excavation was made in a careless, negligent, or unskillful manner. 
 The action ruling in such cases is not the making of the excavation, but the 
 weakening of the support so' as to allow the neighbor's land to fall. It is an 
 incident to the right of property. The measure of damages in such cases is 
 the diminution of the value of land by reason of the falling of the soil, and it 
 is immaterial whether this falling be called caving or washing. It is the 
 natural and approximate result of taking away the lateral support. 1 
 
 Where a lot-owner, in excavating on his lot, injures the wall of the 
 adjacent owner standing three inches back from the line, such adjacent owner 
 cannot recover for injury to his building on account of the displacement of 
 the three inches of ground unless such displacement was both the proximate 
 and independent cause of the damage; and if such displacement was with 
 the consent of the owner, he cannot recover even nominal damages therefor. 2 
 If an excavation causes the soil of neighboring land to give way on account 
 of its gravelly and sandy condition and not because a building has been 
 located upon the neighboring land four and one-half feet from the division- 
 line, the party making the excavation is liable for the damage to the land and 
 building by his failure to protect the plaintiff's building, especially when it 
 could have been done at little expense. Even if the inevitable result of the 
 willful removal of the soil be the fall of the house, the failure of plaintiff to 
 take steps to avoid the injury will not prevent him from recovering the dam- 
 ages to land and building. 3 
 
 331. What Care and Diligence must be Exercised. A rule that requires 
 a landowner having excavation done "to use such care and caution as a 
 prudent and experienced man in such work would have exercised if he had 
 himself been the owner of the injured building " was held wrong, as it tended 
 to mislead. One who was owner of both the lots might very prudently 
 subject himself to expense and inconvenience for the protection of his building 
 that could not justly be imposed upon his neighbor. 4 The question is, " Was 
 there actual negligence in making the excavations?" It is not a good 
 defense to allege "the use of such care as the defendant's builder and super- 
 intendent, a skillful and careful person, deemed necessary." 5 
 
 To be rendered liable the landowner must have failed to take reasonable 
 care to prevent the injury, or malice must be shown. An allegation that 
 defendant did the act maliciously, intending to injure the plaintiff, was held 
 not sufficient. 6 The fact that the excavation was made by a contractor does 
 
 1 Jones on Easements, 588. v. Canal Bd. (N. Y.), 2 Sup. Ct. (T. &C.) 
 
 2 City of Covington v. Geylor(Ky.), 19 275 [1873]. 
 
 S. W. Rep. 741. 5 Charles v. Rankin, 22 Mo. 566; Austin 
 
 3 Gildersleeve v. Hammond (Mich.), 67 v. Hudson R. R., 25 N. Y. 338, 346. 
 N. W. Rep. 519- 6 Panton v. Holland, 17 Johns. 92. 
 
 * Charles v. Rankin, 22 Mo. 566; People 
 
221 PROPERTY RIGHTS DEFINED BY BOUNDARIES. 333. 
 
 not relieve the owner from liability. 1 The general rules as to negligence and 
 what constitutes due care and skill apply. 2 
 
 The distinction between injury to buildings and structures erected on the 
 land, and to the land alone must be kept in mind. It is not a question of 
 negligence in making an excavation when the natural support of the adjoin- 
 ing lot is removed. One is liable without regard to his negligence. 3 
 
 A complaint for damages for caving in of plaintiff's premises, resulting 
 from defendant's excavation on an adjacent lot, which sufficiently avers the 
 negligence, carelessness, and unskillful workmanship of defendant, is sufficient 
 though it fails to aver that plaintiff had no notice of defendant's intention to 
 excavate. 4 
 
 The burden of proof is upon the owner of a building to show that he has 
 exercised reasonable care when the building has fallen into an adjoining street 
 or highway. In the absence of such proof it may be presumed that he was 
 negligent. 5 
 
 332. Liability for Failure to Exercise Care. The landowner must not 
 leave the excavation open to inclement and excessive weather. If he negH- 
 gently leaves the excavation exposed, so that rain-water runs into it and 
 causes the land of an adjoining proprietor to give way, to the injury of the 
 buildings thereon, he is liable for such injuries though the rain may have been 
 an unusual and excessive one; for it would not have run into the excavation 
 except for his negligently leaving it exposed. 6 
 
 When one of two adjoining landowners, on excavating for a cellar up to 
 the division-line, on which the other had built a cellar-wall, undertakes, upon 
 compensation from the other, to remove the parts of the existing wall project- 
 ing over the line, he is responsible for injury to the wall arising from his 
 failure to protect it as persons of ordinary care, skill, and prudence would 
 have done under the same circumstances. 7 If he undertakes to protect an 
 adjacent owner's foundation-wall by underpinning it, he is bound to use 
 reasonable care; and whether the injury resulted from want of such care or 
 from the sandy character of the ground is a question for the jury. 8 
 
 333. Precautions to be Taken to Prevent Injury. It must not be 
 understood from the law of lateral support that a landowner may not improve 
 his land by sinking foundations and making excavations therefor, for that 
 would be almost as unjust to the landowner as the mischief that would result 
 to his neighbor if he were allowed to undermine his property. The possession 
 of land would be of little benefit to the owner if he could not improve it and 
 enjoy the benefits of such improvements. 
 
 1 Dorrity v. Rapp, 72 N. Y. 307. 6 Ulrick v. Dakota Loan & Trust Co. 
 
 2 12 Amer. & Eng. Ency. Law 938. I (S. D.), 51 N. W. Rep. 1023, affirming 49 
 
 3 Ludlow v. Hudson Riv. R. Co., 4 Hun N. W. Rep. 1054. 
 
 239, 6 Lans. 128. 7 Lapp v. Guttenkunst, 44 S. W. Rep. 
 
 * Block v. Haseltine (Ind. App.), 29 N. 964. 
 
 E. Rep. 937. 8 City of Covington v. Geylor (Ky.), 19 
 
 5 Mullen v. St. John, 57 N. Y. 567. S. W. Rep. 741. 
 
334- OPERATIONS PRELIMINARY TO CONSTRUCTION. 222 
 
 A landowner is not required to excavate on his own land for a cellar by 
 piecemeal, or build his wall in sections, to prevent a building on the adjoin- 
 ing owner's land from falling. 1 But if he has told the adjoining landowner 
 that the proposed excavation for a building would be made in the usual 
 manner by removing the dirt " in sections " and walling up one section before 
 another was opened, the latter is entitled to rely upon such representations, 
 at least until a reasonable opportunity has been given him to take measures 
 for the protection of his building; and where, after one section has been built 
 substantially as promised, the remoVal in sections is abandoned, and the dirt 
 is all taken out at once, thereby occasioning the fall of the building only a 
 few hours afterwards, it cannot be said as a matter of law that such oppor- 
 tunity to protect the building was given. 2 
 
 The right of an adjoining owner to lateral support may be asserted as well 
 against a municipal corporation making excavations in changing the grade of 
 a street as against private individuals. 3 * The removal by a railroad company, 
 in excavating for its road, of the lateral support of the soil adjoining its right 
 of way is a taking of property, and the right can only be acquired by pur- 
 chase or condemnation. 4 
 
 It has been held that if the person making the excavation had no reason 
 to suppose that it would occasion the injury which arose from some unfore- 
 seen cause, he was not liable for the damages. 5 
 
 334, Right of Support for Surface of Ground, Where there are two free- 
 holds in the same plot of ground, one in the surface and the other in the 
 mines beneath the surface, as is often the case, the one who excavates for 
 minerals must be careful to supply necessary supports for the surface-soil, if 
 his excavation endangers its natural support. 6 If the owner of the surface 
 has had a house standing thereon for the prescriptive period, the one excavat- 
 ing for minerals is bound to leave or provide support for such house as well 
 as the soil. 7 If the house were a new one, would he also be bound to provide 
 this support ? These cases arise most frequently in coal-mining districts. It 
 is well settled that when a party has conveyed land to another, reserving to 
 himself the right to remove the coal underlying the land, he must exercise 
 ordinary care in removing the coal. If such care requires that pillars or 
 ribs of coal shall be left in order to support the surface and protect the 
 property of the surface owner, their removal will constitute negligence, and 
 the surface owner may recover damages for the loss caused thereby. 8 How- 
 ever, the lessees of a partially worked-out coal-mine are not liable for damages 
 
 1 Obert v. Dunn (Mo.), 41 S.W. Rep. 901. 5 Shrieve v. Stokes, 8 B. Mon. 453. 
 
 2 Larson v. Metropolitan St. Ry. Co. 6 English cases in 2 Washburn on Real 
 (Mo. Sup.), 19 S. W. Rep. 416. Property 333. 
 
 3 Stearns' Ex'r v. City of Richmond 7 Rogers v. Taylor, 2 H. & M. 828. 
 (Va.), 14 S. E. Rep. 847. 8 12 Amer. & Eng. Ency. Law 938, and 
 
 4 McCullough v. St. Paul, M. & M. Ry. American cases; Lord v. Carbon Mfg- 
 Co. (Minn.), 53 N. W. Rep. 802. Co., 42 N. J. Eq. 157 [1886]. 
 
 * See Sec 334, infra. 
 
223 PROPERTY RIGHTS DEFINED BY BOUNDARIES. 334- 
 
 by subsidence caused by excavations made by their predecessors prior to the 
 date of their lease, though they took no measures to arrest the subsidence. 1 
 
 The liability of a city or town for taking away the lateral support of a 
 public street, and for the damages resulting thereby, has not generally been 
 considered. In many of the states, notably those of Minnesota, Massachu- 
 setts, Ohio, Virginia, Illinois, Indiana, Kentucky, and Pennsylvania, cities and 
 towns have been held subject to the same liability as a private owner. In 
 Ohio the removing of lateral support by a city or town is regarded as the 
 taking of land for public purposes, and a compensation is required to be paid 
 for such taking. s lf the land has been improved, and the weight of such 
 improvements has not conduced to the falling of the land, the cost of such 
 improvements may be recovered from the city or town.* 
 
 A city has been held liable for the settlement of a structure by reason 
 of a sewer, built by the city under a street in "made ground," it being 
 shown that the injury was the result of the construction of the sewer and not 
 due to the condition of the ground. No recovery would have been had if 
 the ground upon which the house stood was soft and inadequate to sustain 
 the building under conditions which are usual in the conduct of necessary 
 public works upon highways. 3 Where a sewer commissioner authorized the 
 construction of a sewer through a street, and the excavations therefor induced 
 a flow of quicksand from beneath the surface of abutting land, causing the 
 building thereon to settle and its walls to crack, it was held that the c6m- 
 missioner was liable for the injury. The owner of the buildings did not 
 show that he owned the street where the sewer was constructed. Had he 
 owned the fee in the street, it was said that the taking the land for a sewer 
 imposed no additional servitude upon the highway, 4 and the rights of the 
 owner were not invaded. The commissioner had no right to take the soil 
 (quicksand) of the plaintiffs in land which they had not taken under the 
 statutes, nor to withdraw the support to his land abutting on the street. 5 
 
 A city has been held liable for negligently excavating a river-bottom 
 around and near to piles on which a building rested, whereby the building 
 was undermined ; especially where it appeared that the excavation was made 
 for the purpose of saving expense of frequent removals of sand and sewage 
 deposited by the city in the river by the maintenance of a sewer. It was held 
 that excavation was not a legitimate dredging which the city was entitled to 
 do for the improvement of its harbor in the interests of navigation. 6 
 
 The vendor of land adjoining other land of his own, under which are 
 mines and minerals, and who knows at the time of the sale that the vendee is 
 about to erect upon the land so purchased substantial buildings, impliedly 
 
 ^reenwell v. Low Beechburn C. Co. * Chelsea Dye-house v. Commonwealth, 
 (Eng.), 2 Q. B. 165 [1897]. 164 Mass. 350; Lincoln v. Common- 
 Seating v. Cincinnati, 38 Ohio St. wealth, 164 Mass. i. 
 141. 6 Cabot v. Kingman, 136 Mass. 403- 
 8 Ladd v. Philadelphia, 171 Pa. St. 485. 6 Pomroy v. Granger, 18 R. I. 624. 
 
334- OPERATIONS PRELIMINARY TO CONSTRUCTION. 224 
 
 covenants that he will not use the land retained, or permit it to be used, in 
 such a manner as to derogate from his grant ; and he or his lessee will be 
 enjoined from working the mines within euch a distance from the grantee's 
 land as would be reasonably calculated to endanger its stability. l 
 
 One is not restricted from mining near his neighbor's land because the 
 latter has erected heavy structures near the division-line; but he is bound to 
 observe proper care not to cause the adjoining proprietor more damage than 
 is fairly incident to the prosecution of the work. 
 
 Where, in conducting mining operations, one has omitted to leave the 
 pillars and other supports necessary to insure the absolute safety of the 
 superincumbent surface, on which he has heavy structures and operates 
 machinery, he is not entitled to lateral support from his neighbor's mines, 
 and cannot enjoin such neighbor from mining with ordinary care up to the 
 line between them, where the material is such that a perpendicular wall will 
 sustain its own weight, and the natural pressure thereon, by the power of its 
 own coherence. 2 
 
 If one builds a house on his own land which has previously been excavated 
 for mining purposes, he does not acquire a right of support for the house 
 from the adjoining land of another. Therefore the owner of the adjoining 
 land is not liable to an action if he works mines under his own land, so near 
 its boundary as to cause the excavated land on which the house stands to sink, 
 and the house to be thereby injured. And so one taking coal from his 
 own land is not liable for a subsidence caused in the surface of another's 
 land, which is separated from the colliery by intermediate land from under 
 which the coal had been worked out some years before by a third party, 
 it being admitted that if the intermediate land had been in its natural state 
 no injury would have been caused by the subsequent excavation of the coal. 
 One has a right to work a mine up to the limit of his own land, and this 
 right cannot be diminished by any act done by the owner of the adjoining 
 land, or by the third person, for whose action the owner of the land is not 
 responsible. 3 
 
 The fact that a railroad company has bought and paid for its right of way 
 does not relieve it from paying for an upheaval of adjoining lands caused by 
 the construction of the road in a marshy place, and which has spread out 
 beyond the limit of the right of way. 4 
 
 The support of one's land may be the subject of an agreement wherein 
 for a consideration the removal of support may be consented to. A grantor 
 may reserve the right to enter upon a certain part of the land, to dig and take 
 clay and sand for making brick, or to work minerals. In such case he may 
 remove the lateral support of the land granted, by digging away the part 
 designated in the exercise of the right reserved. 5 
 
 1 Jones on Easements, 605. 4 Roushlange v. Chicago, etc., R. Co. 
 
 2 Jones on Easements, 608. (Ind.). I? N. E. Rep. 198 [1888]. 
 
 8 Jones on Easements, 609. 5 Ryckman v. Gillis, 57 N. Y. 68. 
 
225 PROPERTY RIGHTS DEFINED BY BOUNDARIES. 336. 
 
 When land had been granted for building purposes, and the right to 
 remove the minerals beneath had been reserved, but without the right to enter 
 upon the surface, and it was provided that compensation should be made for 
 all damages suffered from structures on the said plot by the grantor, it was 
 held that he was entitled to take the minerals without leaving any support, 
 subject only to compensation for damage done. 
 
 335. Lateral Support of a Structure. When a boundary-line runs 
 through a building or structure, cutting it in two, it seems that neither party 
 can cut off that portion of the building or barn which is upon his property 
 and leave the rest of the structure without support or shelter. 1 But when 
 plaintiff and defendant respectively owned adjoining lots, obtained from the 
 same original source of title, on which there were three houses, the middle 
 one of which was about half on one side and half on the other side of the 
 division-line, it was held that defendant had a right, where the house had 
 been cut through on the division-line, to remove his half, since the use of the 
 building was not a common servitude for both lots, and that the user of the 
 water-pipes, etc., fell with a separation of the estate in the middle house. 2 
 
 336. Encroachments or Projections upon Adjoining Land.* A person 
 who builds either above or below his soil, adjacent to his neighbor's property, 
 must build in a perpendicular line. He may build as high as he pleases, 
 although it may occasion inconvenience by shutting out light and air, pro- 
 vided the building does not cause damage. 3 
 
 A landowner has a good cause of action in ejectment against the owner 
 of an adjoining lot who has erected, with notice, buildings whose eaves pro- 
 ject several inches over and upon the landowner's lot. 4 One who, by mis- 
 take of the district surveyor in locating the line of his lot, constructs the 
 foundation-wall for a building so that it projects for an inch and a fraction, 
 underground, onto an adjoining lot, may be compelled to remove it so that 
 it shall not encroach. 5 If the foundation be wholly upon the lot of the 
 owner, but a part of the wall or building overhangs an adjoining lot, it may 
 be enjoined and its removal required for so much as it overhangs. 6 
 
 Injunction will lie to compel removal of the wall of a building placed by- 
 defendant on plaintiff's side of a boundary, there being no adequate and plain 
 remedy at law. Injunction to compel removal of a wall will be made per- 
 petual, without resort to law to determine title, where the questions of title 
 and right of possession are only incident to the question of boundary. 7 
 
 1 Adams v. Marshall, 138 Mass. 338 v. Colgen (N. J.), 9 Atl. Rep. 105 [1887]. 
 
 [1885]. 5pile v - Pedrick (Pa. Sup.), 31 Atl. 
 
 2 Whyte v. Builders' League, 52 N. Rep. 647. 
 
 Y. Supp. 65, 23 Misc. Rep. 385. 6 Lyle v. Little (Sup.), 33 N.Y. Sup. 8; 
 
 'Oldstein v. Firemen's Bldg. Assn. Harrington v. McCarthy (Mass.), 48 N. 
 
 (La.), 10 So. Rep. 928, E. Rep. 287 [1897]. 
 
 *Lepreel v. Kleinschmidt (N. Y.), 19 T Norton v. Elwert (Oreg.), 41 Pac. 
 
 N. E. Rep. 812 [1889]. And see Anglecey Rep. 926. 
 
 * See Sees. 455, 608, infra. 
 
336- OPERATIONS PRELIMINARY TO CONSTRUCTION. 226 
 
 The adjoining owner, by utilizing the wall in the construction of a build- 
 ing on his land may lose his right to demand a demolition of the wall. 1 
 
 Where, however, only an occasional stone of the foundation of a house 
 projected a short distance into plaintiff's land below the surface, and this 
 encroachment was unintentional, and the defendant, on discovering it, after 
 the house was nearly completed, " offered to pay plaintiff any sum he might 
 claim," but plaintiff refused anything but removal, and no appreciable damage 
 resulted to plaintiff, while removing of the projecting portions of the stones 
 might be difficult and- expensive, it was held that the plaintiff would be left 
 to his remedy at law. 2 And where a wooden building encroached six inches 
 on a private alley for' more than twenty years, and the owner attempted 
 to veneer it with brick, whereby it would encroach three inches more, and 
 it did not appear that the encroachment would materially injure the right 
 of way, it was held that the adjacent owner was not entitled to remedy by 
 injunction. 3 
 
 Where the encroachment of a building on premises agreed to be con- 
 veyed in an executory contract is not more than one-fourth of an inch 
 upon the adjacent lot, it does not warrant a denial to the vendor of specific 
 performance. 4 
 
 If defendant's building encroach upon the plaintiff's land so as to injure 
 the plaintiff's property, the owner who maintains these encroaching walls is 
 guilty of a trespass and is responsible for any injury sustained thereby. The 
 fact that at the time of the encroachment the defendant's property was in 
 possession of a tenant does not relieve the defendant. from liability. 5 
 
 Exemplary damages should not be allowed for refusal of defendant to 
 remove his building, overhanging plaintiff's lot, under a mistaken belief that 
 plaintiff was responsible for the projection of the building, and that he was 
 not obliged to remove it, though there was considerable delay after decree 
 commanding him to remedy it; this being partly due to efforts to devise 
 means to do the work without taking down the building. 6 
 
 A lease of a building has been held to convey the land under the eaves 
 .and projections of the building if that land is owned by the lessor. 7 
 
 When one of two adjoining lots has a house upon it with the corners pro- 
 jecting over the other lot, and the former is sold to a second person, the 
 purchaser of the other lot cannot question the right to maintain the corners 
 even though the first lot has come back to the original owner. 8 
 
 Where adjoining owners erect buildings with reference to the supposed 
 
 1 Monteleone v, Harding (La.), 23 So. 5 Hefferberth v. Meyers (N. Y.), App. 
 Rep 990. Div. [1896]. 
 
 2 Harrington v. McCarthy (Mass.), 48 6 Burruss v. Hines (Va.), 26 S. E. Rep 
 N. E Rep. 287 [1897]. 875. 
 
 3 Hall v. Rood, 40 Mich. 46 [1879], 7 Sherman v. Williams, 113 Mass. 481. 
 citing 48 Mich. 368 and 65 Mich. 84. 8 Grace M. E. Ch. v. Dobbins (Pa.), 25 
 
 4 Katz v. Kaiser, 10 App. Div. 137,41 Atl. Rep. 1120. 
 N. Y. Supp. 776. 
 
PROPERTY RIGHTS DEFINED BY BOUNDARIES. 338. 
 
 boundary-line between them, there is a practical location of such boundary 
 which may bind the parties. 1 * 
 
 Where a lot-owner has built over the line on the adjoining lot by mistake, 
 and has had open, continuous, and exclusive possession for the statutory 
 period with intention to hold adversely, it is adverse possession. *f 
 
 337. What Constitutes a Party-wall. The original division-wall erected 
 at the time of building two houses by the owner of either is not a party-wall, 
 and does not become such by a sale of the houses to different parties. 3 A 
 brick wall which is used in common, as the wall of two adjacent properties 
 in a city, is a party-wall if erected partly on the soil of each and so used for 
 many years without question /O r complaint by either. 4 A division-wall, built 
 entirely on the land of one person, may by agreement, actual or presumed, 
 become a party-wall. 5 If a neighbor has by mistake extended the founda- 
 tion of a wall slightly onto an adjoining lot, it does not thereby become a 
 party-wall. 6 
 
 338. Property in Party-walls. When a party-wall has been erected 
 upon the division-line between two states, the adjoining landowner owns that 
 part of the wall which stands upon his premises unless there is something to 
 the contrary in the contract under which the building is erected. The fact 
 that the contract provides that before the adjacent owner shall make any use 
 of the wall he must pay to the party erecting it one-half the value thereof 
 does not alter the case. 7 
 
 It has also been held not to be a use of a party-wall where one relies upon 
 it for protection, and so constructs his own wall of such materials as are 
 generally used for outside work, if the wall be not attached ^to the party-wall 
 and does not depend upon it for its support. 8 
 
 An adjoining owner who has used a wall resting wholly on the land of his 
 neighbor for the support of his building for the full statutory period acquires 
 an easement in the wall which cannot be interfered with by the neighbor to 
 the extent of cutting off the floor-beams on a portion of the building, even 
 though it be done for the purpose of straightening the wall. 9 The right to 
 such an easement is limited to the extent of the ancient user. The owner 
 has a right to use it in any way that will not conflict with that right. 10 He 
 
 1 Ford v. Schlosser (Com. PI. N. Y.), 34 6 Pile v. Pedrick (Pa. Sup.), 31 Atl. 
 
 N. Y. Supp. 12. But see Griffiths v. Mor- Rep. 646. 
 
 risen (N. Y.), 12 N. E. Rep. 580 [1887]. 7 Mickel v. York, 66 111. App. 464. 
 
 Wilson v. Hunter (Ark.), 28 S. W. 8 Sheldon Bank v. Royce (Iowa), 50 N. 
 
 Rep. 419. W. Rep. 986 tinder Iowa Code, 2019, 
 
 3 Moore v. Shoemaker (D. C. App.), 25 distinguishing Molony v. Dixon, 65 Iowa 
 Wash. L. Rep. 72, 29 Chicago Leg. News 136, 
 
 207. * Barry v. Edlavicht (Md.), 35 Atl. Rep. 
 
 4 Kelly v. Taylor (La.), 10 So. Rep. 255. 170. 
 
 5 Dorsey v. Habersack (Md.), 35 Atl. 10 Pearsall v. Westcott, 51 N. Y. Supp. 
 
 Rep. 96; Mott v. Oppenheimer (N. Y. 663 [1898]. 
 App.), 31 N. E. Rep. 1097. 
 
 * See Sees. 491-510, infra. \ See Sees. 511-540 and 682-691, infra. 
 
339' OPERATIONS PRELIMINARY TO CONSTRUCTION. 22% 
 
 cannot complain that the neighbor has built his 'wall higher and placed 
 windows therein, since his right to thd use of the wall was limited to the use 
 he enjoyed during the period of prescription. 1 
 
 Such an easement in a party-wall does not deprive the original owner of 
 the possession of it, although the adjoining o-wfler be entitled to the use of the 
 wall. 2 Such an easement becomes appurtenant to the adjoining landowner's 
 estate, and passes to his grantees. 3 
 
 When a party has acquired the right to use a party-wall by complying 
 with the statutes in regard thereto, the owner of the building already erected 
 cannot complain that his neighbor's use of the wall will change a portion of 
 the front of his building, and mar its appearance, if the use is exercised in a 
 proper manner. 4 
 
 339. Destruction or Demolition of Party-walls. Where two houses are 
 built together, the right to mutual lateral support exists only so long as the 
 wall continues to be sufficient for the purpose and the buildings remain in a 
 condition to require support. If the buildings be torn down and be not at 
 once restored, the parties may assert their unqualified ownership and title to 
 the division-line. 5 
 
 When the owner of several houses so built that they require mutual 
 support conveys one of them, he does not thereby lose the lateral support of 
 it, the legal presumption being that the owner reserves to himself such right 
 and at the same time grants to the new owner a like right. 6 
 
 Any easement of an adjoining lot-owner created by a party-wall ceases 
 when the wall becomes unfit for use either from age or accident. 7 A pro- 
 vision that the rights of the parties shall continue "so long as the wall shall 
 stand " does not mean so long as any part of the wall itself shall remain, but 
 so long as the wall shall remain fit for use as a party-wall. 8 
 
 A beam-right in favor of adjoining premises, to continue until the wall of 
 the servient premises is destroyed in any manner or torn down for the purpose 
 of rebuilding, is an encumbrance upon the premises. 9 
 
 340. Right to Build Party-wall Higher. A joint owner of a party-wall 
 has a right to increase its height, but in so doing is liable for any injury to 
 the adjoining building, even though the addition is being built by a con- 
 tractor, and the damage results from a wind-storm which causes the wall to 
 fall. 10 An agreement whereby the right "to place joists to the depth of four 
 inches, and to otherwise build into and against " the wall of plaintiff's house, 
 "and to otherwise use the same as a party- or division-wall," is purchased, 
 
 1 Barry v. Edlavicht, supra. 7 Odd Fellows' Hall v. Hegele (Oreg.), 
 
 2 Pearsall v. Westcott, supra. 32 Pac. Rep. 679. 
 
 3 Barry v. Edlavicht, supra. 8 Odd Fellows' Hall v. Hegele, supra. 
 
 4 Freeman z/. Hairwig (Iowa), 51 N. W. 9 Schaeffer v. Miehling (Super.), 34 N. 
 Rep. 169. Y. Supp. 693. 
 
 6 Moore v. Shoemaker, 10 App. D. C. 10 Brooks v. Curtis, 50 N. Y. 639; Negus 
 
 6 [1897]. v. Becker (Sup.), 22 N. Y. Supp. 986. 
 
 6 Moore v. Shoemaker, supra. 
 
229 PROPERTY RIGHTS DEFINED BY BOUNDARIES. 341. 
 
 includes the right to increase the height of said wall. l When a person has 
 the right to build the wall higher although it may shut off the view from the 
 other party's windows and lessen the light coming thereto, he may do the 
 same thing by the erection of a screen upon such wall, without entitling the 
 other party to relief by injunction. 2 
 
 When one of the joint owners has built the party-wall higher, it seems he 
 cannot recover from his neighbor who uses such addition for the support of 
 his house when he also builds higher, unless there is an express agreement to 
 that effect. 3 
 
 Under an agreement for the construction of a wall in common by joint 
 property owners to the height of three stories on the land of one, there is no 
 presumption that the other may, of his own motion and for his own benefit, 
 extend said wall upward another story without regard to a threatened ease- 
 ment ripening therein, or of an injury likely to result to the property 
 adjacent. 4 
 
 Where it was mutually agreed that a party -wall should be built to a height 
 of one story, and that either party could add to the wall in height, doing work 
 from his own side, and the party who did not build the wall, wishing to go 
 higher, built on top of such wall but on his own side of the line, it was held 
 that such addition was not necessarily a party-wall. 5 A covenant that a 
 building shall not be erected above a certain height is the grant of an ease- 
 ment which can be enforced by injunction pioceedings instituted by adjoining 
 property owners. 6 
 
 341. Erection of Wall or Fence to Obstruct Light and View. A lot- 
 owner has the legal right to erect and maintain a board fence on his lot as 
 high as he will, even to the roof of the house on the adjoining lot standing 
 on the division-line, and even though the fence is buiH for the sole purpose of 
 shutting light and air from the windows of the house, to the injury of its 
 owner. 7 An owner of a house cannot enjoin his neighbor from erecting such 
 a fence on the boundary-line so as to shut off the light and air. 8 He has no 
 remedy even though he has enjoyed the light and air for more than fifty 
 years. 9 
 
 A servitude of light and air through windows in a wall cannot be acquired 
 by prescription against the owner of the adjoining lot, at least not until 
 
 1 Dorsey* v. Habersack (Md.), 35 All. Rep. 195. 
 
 Rep. 9 6. 7 Letts v. Kessler (Ohio), 42 N. E. Rep. 
 
 2 Cagney v. Sweet, 67 111. App. 641 765; Levy v. Samuel (Super.), 23 N. Y. 
 
 [1896]. Supp. 825. 
 
 'Allen v. Evans (Mass.), 37 N. E. Rep. 8 Triplett v. Jackson (Kan.), 48 Pac. 
 
 57I . Rep. 931; Ladd v. Flynn(Mich.), 51 N.W. 
 
 *Calmelet v. Sichl (Neb.), 67 N. W. Rep. 203; contra, Kirkwood v. Finegan 
 
 Rep. 467. (Mich.), 55 N. W. Rep. 457. 
 
 5 Palmer v. Evangelico Soc. (Mass.), 43 9 Kanabe v. Levelle (Super.), 23 N. Y. 
 N. E. Rep. 1028. Supp. 818. 
 
 6 Brown v. O'Brien (Mass.), 47 N. E. 
 
34 2 OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 such owner has made the wall one in common, since until that time he is not 
 able to assert the right to have the windows closed. 1 * 
 
 342. Openings in a Party-wall, It seems that windows cannot be placed 
 in a party-wall owned in part by the adjoining owners. 2 Openings in a wall 
 for the insertion of iron beams have been held in effect to be windows in a 
 party-wall, and as such unlawful. 3 A party -wall is presumably a dead or 
 solid wall, and a builder becomes liable for trespass if he makes openings in 
 it. 4 However, in Minnesota it has been held that holes cut four inches deep 
 in an eighteen-inch wall for the insertion of joists and sleepers did not make 
 a breach of a contract that the wall should be and remain a solid wall. The 
 act of joining and building to a party-wall in a manner that is customary and 
 proper does not violate the terms of the contract. 
 
 To determine whether a wall was improperly built, in that it contained 
 flues which encroached two inches on defendant's portion of the wall, it is 
 proper to ask an architect whether it is customary to build flues in party- 
 walls. 5 Whether an encroachment of two inches by the flues was a substantial 
 defect in the construction of the wall, and whether it prevented defendant 
 from using the wall in the same way that plaintiff did, are questions of fact. 5 
 
 343. Agreement of Adjoining Owner to Pay his Share of Cost of Party- 
 wall. Sometimes agreements are made by which an adjoining owner is to 
 pay for his share of the cost of a party-wall when he shall have occasion to 
 use it. When such is the case, the assignee or heirs of the party who owns 
 the vacant lot take the said lot subject to the covenant, which may be 
 enforced as a charge on the land. 6 An agreement between the owners of 
 adjoining premises, whereby one is to build a party-wall, one-half on the 
 ground of each, and the other is to pay for one-half the cost of its con- 
 struction when he uses the same, will bind a purchaser of the estate of an 
 owner so contracting if he avails himself of its benefits. 7 However, under an 
 agreement on the part of the adjoining owner to pay when the party wall 
 shall be used by himself or his heirs or assigns, one who was a mortgagee 
 when the said adjacent owner built upon his lot is not liable for such 
 payment of one-half- the cost of said wall, nor is he liable because he after- 
 wards became owner of the lot through foreclosure, and occupied the building 
 after its erection ; the occupation and use of the building not being regarded 
 as a use of the wall within the agreement. 8 
 
 1 Oldstein v. Firemen's Bldg. Assn. 5 Hammann v. Jordan (N. V. App.), 29 
 (La.), 10 So. Rep. 928; Wardens v. La- N. E. Rep. 294, reversing 13 N. Y. Supp. 
 vezzolo (Mass.), 30 N. E. Rep. 471; Keat- 228. 
 
 ing v. Springer (111.), 34 N. E. Rep. 805; 6 Pillsbury v. Morris (Minn.), 56 N. 
 
 Robinson z/. Clapp, 65 Conn. 365. W. Rep. 170; King v. Wight (Mass.), 29 
 
 2 National Com. Bank v. Gray (Sup.), N. E. Rep. 644; Jordan v. Kraft (Neb.), 
 24 N. Y. Supp. 997. 51 N. W. Rep. 286. 
 
 3 Bedell v. Rittenhouse Co. (Com. PL), 7 Harris v. Dozier, 72 111. App. 542. 
 
 5 Pa. Dist. Rep. 689. 8 Pfeiffer v. Matthews (Mass.), 37 N. E. 
 
 * Bedell v. Rittenhouse Co., supra. Rep. 571. 
 
 * Set Sees. 185, supra; 682-690, infra. 
 
231 PROPERTY RIGHTS DEFINED BY BOUNDARIES. 343. 
 
 When a statute provides for the tearing down and replacing of an existing 
 party-wall, and that the adjoining owner shall not use the said wall by build- 
 ing into or against it, or by using it for any new building until he shall have 
 paid a portion of the cost, the adjoining owner is not made liable to pay 
 until he begins to make a new use of the wall. The mere replacing of his 
 beams in the wall as they had been in the old wall is not such a use, but a 
 continuation of the old use. 1 
 
 Where an act of legislature gave officers discretionary powers to regulate 
 the thickness of party-walls, subject to a minimum thickness and a maximum 
 encroachment on the adjoining lot, and it was provided that a permit to 
 build as described might be issued in the discretion of the inspectors, 
 it was held that a builder who had erected a party-wall of greater thickness 
 than that prescribed in his permit could not require the adjoining owner to- 
 pay one-half the cost thereof, even though the encroachment was within the 
 maximum limit. 2 
 
 Where a party-wall has been erected by an owner under an agreement that 
 his neighbor shall pay his share of the cost when he shall use the wall, said 
 landowner, it seems, is not liable for the fall of the said wall upon his neigh- 
 bor, where the building erected in connection with the wall has been burned. 
 This was so held even though the adjoining owner had not made any use 
 whatever of the wall. 3 
 
 Under a party-wall agreement, one party was to be liable for half the cost 
 of a wall built by the other whenever he built to such wall. He built a 
 " studded" wall next to the party-wall, touching it and cemented to it, to 
 keep out the moisture, and it was held that this constituted such a use of the 
 wall as to make him liable under the agreement. 4 
 
 Where one in building a house joins it to the wall of another house with- 
 out a written contract, but supposing he had purchased a half-interest in the 
 wall, equity will not compel him to detach his house from the wall, but will 
 ascertain the damage which such use of the wall has been to the owner, and 
 what advantage it has been to the other, and decree payment accordingly. & 
 In determining the cost of a party-wall, the testimony of the architect as to 
 the cost is a sufficient basis for a verdict on the agreement. 6 
 
 1 Hoffstot v. Voigt (Pa.), 23 Atl. Rep. 3 Mickel v. York, 66 111. App. 464 
 351. [1896]. 
 
 2 Kirby v. Fitzpatrick (Pa. Sup.), 32 4 Harris v. Dozier, 72 111. App. 542. 
 Atl. Rep. 53. See Natl. Life Ins. Co. v. 5 Moore v. Owen, 46 S. W. Rep. 1005. 
 Lee (Minn.), 77 N. W. Rep. 794 [1899]; 6 Prefontaine v. McMicken (Wash.), 36 
 Keith v. Ridge (Mo.), 47 S. W. Rep. 904 Pac. Rep. 1048. 
 
 [1898]. 
 
CHAPTER XIX. 
 
 {NTERFERENCE OR INVASION OF PROPERTY RIGHTS BY SUR- 
 VEYORS. 
 
 351. Trespass. Any interference with property rights is a trespass. A 
 forcible disturbance of peaceable possession is a trespass, without regard to 
 the question of title. An entry on land without license and without express or 
 implied permission from the owner is a trespass. Generally the interference 
 must be by direct physical force in order to give the party injured a cause of 
 action. Mere words, as a rule, are not sufficient. 
 
 All persons are liable for the trespass who participate in the wrongful act, 
 by aiding in it, advising it, or assenting to it. If an employer or servant aid, 
 abet, or incite the perpetration of the trespass, he, as well as the person who 
 commits the act, is liable. 
 
 The liability of the trespasser does not depend upon his intention to do 
 the injury. He is liable for the mischievous or careless act, if injury result, 
 even if done with the best intentions. A balloonist has been held liable for 
 the acts of a crowd which broke into a garden to assist him in descending 
 and to prevent him from being entangled in the trees, the crowd having trod- 
 den down the owner's vegetables and flowers. 1 
 
 A trespasser is liable for cutting trees, though he did it under instructions 
 from persons who had no authority in the matter. 2 A trespasser cannot 
 justify himself on the ground of mistake. A person is expected to know the 
 boundaries of his land, and whether his title to it is good and sufficient. 
 
 If the motive in doing an act were bad, that alone could not be made a 
 ground of action if the rights of the property owner were not violated. Nor 
 can a trespass be excused by showing that the plaintiff is a trespasser, a 
 wrong-doer, or a violator of the law. 3 
 
 The spirit in which the wrongful act is committed may be shown in 
 mitigation of damages. 
 
 The owner may resist an entry upon his land, but he is not justified in 
 killing the trespasser unless it is necessary to prevent a felonious destruction 
 
 1 Guille v. Swan, 19 Johns. (N . Y.) 381. 3 Hill v. Morrey, 26 Vt. 178 [1854] ; 26 
 
 2 Allison v. Little, 85 Ala. 512. Amer. & Eng. Ency. Law 579. 
 
 232 
 
233 INVASION OF PROPERTY RIGHTS BY SURVEYORS. 352. 
 
 of his property, or to defend himself against loss of life or great bodily harm, i 
 A property owner has the right to order a trespasser from his premises, but 
 he has no right to follow him up and provoke an attack upon himself so fierce 
 as to require the taking of the trespasser's life in self-defence. 2 
 
 352. Engineers and Surveyors as Trespassers. Surveying and engineer- 
 ing operations often induce and sometimes require those who conduct them 
 to commit trespass. Surveys are conducted on land, and obstacles are met. 
 Rather than clear the line, surveyors sacrifice their safety and run risks by 
 trespassing upon adjoining estates. Surveys must be made for proposed 
 engineering structures, to determine their cost or practicability, before any 
 steps have been taken to secure rights of way, and frequently before any privi- 
 leges are sought. Every surveyor and engineer has had amusing and exciting 
 experiences with obstinate and belligerent landowners. Men, women, dogs, 
 and cattle have played almost as important a part in the protection oi 
 property as have the courts, but there are some cases recorded from which 
 the following suggestions have been obtained. 
 
 There is no reason why a surveyor acting simply in his professional 
 capacity should not be held for trespass the same as any other person ; but 
 the propriety and legitimate object of his work especially recommend him to 
 the mercies of the court, and the damages assessed are usually merely nominal. 
 Because of the trifling injury resulting from the trespass, few cases reach the 
 higher courts, and few therefore are reported. 
 
 When a surveyor enters upon land of another for the purpose of making a 
 survey, he is a trespasser, and is liable for any injury that he may do to the 
 estate. 3 A person who enters with a surveyor for the purpose of making a 
 survey is guilty of a trespass, because every unauthorized entry upon the land 
 of another is a trespass. When one so enters and surveys a part of the land, 
 even if he does not cut or mark trees or shrubs, he is a trespasser. 4 
 
 The fact that the surveyor cut the trees under instructions from persons 
 who had no right to authorize the cutting will not afford him a defense in an 
 action for trespass, though he believed such persons had the necessary 
 authority. 5 A surveyor has no more right to move or change a monument 
 which marks the boundary of a field than has any one else. 6 
 
 As to how far a county is liable for trespass or damages done to private 
 property by its officers in the exercise of powers conferred for the benefit of 
 the locality and its inhabitants, such as those relating to the opening and 
 keeping open of roads, as distinguished from powers relating to the adminis- 
 
 1 Carroll v. State, 23 Ala. 28. ter, 22 N. H. 472; Guille v. Swan, 19 John. 
 
 2 Tiffany v. Commonwealth, 121 Pa. St. 381; Newson v. Anderson, 2 Ired. 42; 
 165. ' Norvell z'. Thompson, 2 Hill (S. C.) 470; 
 
 8 Ames Cases on Torts 82. Carter v. Wallace. 2 Tex. 206, accord ; 
 
 4 Dougherty v. Stepp, i Dev. & Battle Keller v. Masser, Tap. (Ohio) 43, contra. 
 
 3?i L l8 35]: Tuffts v. Spring, 15 Mass. 135; 5 Allison v. Little (Ala.), So. Rep. 221 
 
 Pfeiffer v. Grosman, 15 111. 53; Mundell [1889]. 
 
 v. Hugh, 2 Gill & J. 193; Brown v. Man- 6 Gregory v. Knight, 50 Mich. 61. 
 
35 2 - OPERATIONS PRELIMINARY TO CONSTRUCTION. 2 34 
 
 tration of the general laws and enforcement of the general policy of the state, 
 it has been held that when a member of the county board of supervisors who 
 was also a road commissioner, claiming to act in his official capacity, with the 
 assistance of other citizens repeatedly tore down a gate opening into private 
 grounds, and insisting that the road through such grounds was a public road 
 by prescription or dedication, and such road was thereafter declared a public 
 road by resolution of the board of supervisors, and was surveyed and recorded 
 as such, the county was liable for such trespass, and that the acts of the board 
 of supervisors was an adoption and ratification of the officer's acts. 1 The 
 placing by their engineer of stone bounds upon a line located by commis- 
 sioners has been held not to be taking possession of the land. 2 
 
 Where a superintendent of streets forcibly entered with his men upon 
 another's land in pursuance of a vote of the board of aldermen, but not 
 under vote of the city council, and not in reference to any property which the 
 city claims to own, nor in performance of any work which the city was 
 specifically authorized to do, nor in which the city had a corporate interest 
 distinct from that of the town and the state, the city was held not liable to 
 an action by the owner for the trespass. 3 
 
 An idea of the liability of a surveyor as a trespasser may be derived from a 
 case decided in Vermont in which a third party, who was a mere volunteer, 
 not acting at the request of the defendant and not in his employ, cut a few 
 small trees and poles upon the land of the plaintiff and over the boundary- 
 line between the plaintiff and defendant. The volunteer was somewhat in 
 the same position as a surveyor in the employ of the landowner when he 
 undertakes to survey his land. The volunteer in this case had been requested 
 by the landowner to be careful not to cut over the line. It also appeared 
 that the adjoining landowner, the plaintiff, had told both his adjoining land- 
 owner and the said volunteer when they began to mend the fence that they 
 must not cut upon his side of the fence. It was held that the defendant 
 landowner was liable for the volunteer's acts when they were done in his 
 presence and for his benefit and he had not dissented in any manner to such 
 acts; that the defendant did cut the trees negligently and for want of proper 
 information, and that the defendant was liable for the acts. If, however, the 
 volunteer had been cutting trees by defendant's consent or direction and he 
 knowingly or willfully, without defendant's consent or direction, cut trees 
 upon the plaintiff's land or possession, then the defendant would not have 
 been liable for such acts. 4 
 
 Township officers trespassing upon land in the attempt to locate a section- 
 line highway on a line other than its proper location are personally liable for 
 the trespass. 5 But any conduct on the part of a property owner which 
 
 1 Coburn v. San Mateo Co. (C. C.), 75 [1883]. 
 
 Fed. Rep. 520. 4 Hill v. Morrey, 26 Vt. 178 [1854]. 
 
 2 Parker v. Co. of N., 150 Mass. 489. 5 Webster v. White (S. D. ), 66 N. W. 
 
 3 Manners v. Haverhill, 135 Mass. 165 Rep. 1145. 
 
235 INVASION OF PROPERTY RIGHTS BY SURVEYORS. 353- 
 
 prevents, because of bodily fear, a surveyor in making the survey of lands 
 pursuant to an order from the court has been held an illegal resistance within 
 the Revised Statutes of Louisiana, 865, Act n> I882. 1 
 
 It is sometimes difficult to determine whether certain acts are trespass or 
 not. One question which has been raised in the schools is whether or not it 
 is a trespass to pass over another's land in a balloon. It has been held that 
 to shoot a pheasant which was over another man's land was an act of 
 trespass. 2 
 
 Whether or not the owner of a dog or cat is liable for trespass of the 
 animal on land seems not to be well settled. 3 It may be the subject of 
 statute law. Some cases are distinguished where a dog goes upon land of his 
 own free will or fancy from those where he accompanies his owner or keeper. 4 
 The owner or keeper is held liable in the latter instance. 
 
 353. Trespass Committed by Surveyor or Engineer when a Public 
 Officer. When a surveyor or engineer is an officer of the state or of the 
 Federal Government, or is acting by authority of either, or under powers 
 granted to a corporation by the legislature, he is authorized to enter upon 
 lands and perform his work, and cannot be interfered with, if acting within 
 the scope of his duties. The entry must be for a temporary purpose and be 
 accompanied with no unnecessary damage. Preliminary surveys and explora- 
 tions for determining the route of a canal or railroad may be authorized by 
 the state without compensation being previously paid or secured to an 
 owner. This is so even though the Constitution requires the payment of 
 compensation to precede a taking, on the ground that no estate is thereby 
 taken, the owner not being deprived of the use and enjoyment of his prop- 
 erty. 5 The occupation becomes a taking when it extends to an interference 
 with the owner's use, to the construction of works upon the land, or to acts 
 which are in the nature of waste. 6 
 
 A railroad company must of necessity be permitted to go upon lands for 
 the purpose of surveying and locating the line of its road, for until the line is 
 located condemnation is impossible. 7 The right of examination by making 
 survey is incident to the right of appropriation and necessary to its proper 
 exercise. 8 
 
 1 Armstrong v. Vicksburg, etc., R. Co. 504, 525; Orr v. Quimby, 54 N. H. 590; 
 
 (La.), 16 So. Rep. 468. Lyon v. Green Bay & M. R. Co., 42 Wis. 
 
 a See Kenyon v. Heart, 6 B. & M. 249. 538; Neal v. Pitts'burg & C. R. Co., 31 
 
 3 Ames Cases on Torts 78, note, and cases Pa. St. 19, 2 Grant 137; Walther v. War- 
 cited ; Read v. Edwards, 17 C. B. N. S. ner, 25 Mo. 277; Doughty v. Somerville 
 260. & E. R. Co., 3 Halst. Ch. 51, 63; State v. 
 
 4 Beckwith v. Shordike, 4 Burrow 2092. Seymour, 6 Vroom 47; Stuart v. Balti- 
 
 5 Pierce on Railroads 194, and cases more, 7 Md. 500. 
 
 collected ; Bloodgood v. Mohawk & H. R. 6 Davis v. San Lorenzo R. Co., 47 Cal. 
 Co., 14 Wend. 51, 18 Wend. 9; Polly v. 517; Morris & E. R. Co. v. Hudson Tun- 
 Saratoga & W. R. Co., 9 Barb. 449; nel R. Co., 10 C. E. Greene 384. 
 Bonaparte v. Camden & A. R. Co., Bald- 7 Lyon v. Green Bay & Min. Ry. Co., 
 win 205; Winslow v. Gifford, 6 Cush. 42 Wis. 544 [1887]. 
 
 327; Cushman v. Smith, 34 Me. 247; 8 Ward v. Toledo, etc., R. Co., 10 West. 
 
 Eaton v. Boston, C. & M. R. Co., 51 N. H. L. Jour. 365 [1853]. 
 
353- OPERA TIONS PRELIMINA RY TO CONS TR UCT20N. 236 
 
 As Judge Cooley in his book on Constitutional Limitations : has said : 
 " No constitutional principle is violated by a statute which allows private 
 property to be entered upon and temporarily occupied for the purpose of 
 survey and othej incipient proceedings with a view to judging and determin- 
 ing whether the public needs require the appropriation or not, and if so, what 
 the proper location shall be; and the party acting under this statutory 
 authority would neither be bound to make compensation for the temporary 
 possession, nor be liable to any act of trespass." Sedgwick in his work 
 upon Statutory and Constitutional Law 2 has gone a step further by saying : 
 ' ' In the construction of works of public improvement, as railroads or canals 
 for instance, before it is known that the lands will be wanted preliminary 
 steps, such for instance as surveys, are indispensably necessary. These pre- 
 liminary steps are in themselves a trespass, and may sometimes, as by felling 
 trees, work actual injury to the proprietor. On the other hand, if payment 
 be not made before the work is actually begun, then, if it be discontinued or 
 left in an imperfect state, the owner might be entirely remediless. In such a 
 conflict of interests the current of decisions seems to tend to establish the rule 
 that the preliminary steps in regard to public works may be taken without 
 any compensation, but that before any definite act be done towards the con- 
 struction of the improvement which is in the nature of the assertion of owner- 
 ship, payments must be made or tendered, or a certain and adequate remedy 
 provided." Redfield in his work on Railways 3 expresses a like view when 
 he says: "It is settled that the legislature may authorize railway companies 
 to enter upon lands for the purpose of preliminary surveys, without making 
 any compensation therefor, doing as little damage as possible, and selecting 
 such seasons of the year as will do least damage to the growing crops." 
 
 The proper rule to observe, in this respect, is such as a prudent owner of 
 the land would be likely to adopt in making surveys for his own advantage. 4 
 In some states the party is made liable by statute for damages for temporary 
 occupation. 
 
 In the English statutes, and in many of the special charters and general 
 railway acts in the American states, the companies are bound to make com- 
 pensation for such temporary use of the land where they do not ultimately 
 take the land. In such a case, where the statute authorizes the entry upon 
 land, the companies are not treated as trespassers, and even where the statute 
 provides for no compensation it is not regarded as a taking of private 
 property for public use within the provisions of the American state and 
 United States constitutions. 5 
 
 ^ooley's Const. Lim. (3d ed.) 560. good v. Mohawk & H. R. Co., 14 Wend. 
 
 2 Sedgwick on Statutory and Constitu- 51; s. c., 18 Wend. 9; Mercer v. McWil- 
 
 tional Law (2d ed.) 467. Hams, Wright 132. 
 
 5 Redfield on Railways (5th ed.) 258. 5 Redfield on Railways (6th ed.), 6, 
 
 *Cushman v. Smith, 34 Me. 247; Polly p. 247. 
 v. Saratoga R. Co., 9 Barb. 449; Blood- 
 
237 INVASION OF PROPERTY RIGHTS BY SURVEYORS. 354, 
 
 While a railroad company may be permitted to enter upon lands for the 
 purpose of making preliminary surveys, it must also respond to the owner 
 for any injuries done to his property; and in such case the party who owned 
 or was in possession of the land when the injury was committed is entitled to- 
 damages, and not a subsequent purchaser. 1 In a case of trespass 2 against, 
 the defendant, who was in possession of a railroad as mortgagee, for running 
 engines and cars over the plaintiff's land, this question is discussed byr 
 Shepley, J., and it is held that " to take the real estate of an individual for 
 the public use is to deprive him of his title to it, or of some part of his title, 
 so that the entire dominion over it no longer remains with him," and that 
 1 ' the exclusive occupation of that estate temporarily, as an initiatory proceed- 
 ing to an acquisition of a title to it, cannot amount to a taking of it in that, 
 sense." We are not prepared to hold that a substantial injury to real estate, 
 as by the destruction of trees growing upon it, does not constitute a taking 
 of it within the meaning of the constitution, 3 and the application of this, 
 doctrine to preliminary surveys seems to be settled by the authorities. 
 
 A railway or improvement company may reasonably expect its engineering 
 force to carry on its preliminary and location surveys with as little conflict as. 
 possible with the property owners with whom they are likely afterwards to 
 have to deal for right of way and other privileges and easements. It is an 
 engineer's duty to keep relations with such property owners as pleasant as 
 possible; and if the principle that " discretion is the better part of valor " be 
 adopted, and the engineer seeks to obviate any contention or controversy, 
 endeavoring to act entirely within all his rights, he will probably succeed 
 better than if he act otherwise. He should know that he may make 
 surveys and enter upon property for that purpose, doing no more harm than 
 is reasonably necessary, and not be liable in an action of trespass. 
 
 In the state of New York, the Code of Civil Procedure, 1682, provides, 
 that, in an action relating to real estate, where the court is satisfied that a 
 survey of any property in possession of either party is necessary or expedient 
 to enable either party to appropriate a building or to appropriate a way 
 for travel, it may grant leave to enter on the property to make such a. 
 survey. Such act has been held to apply to an action for entering upon land 
 and removing stone and materials therefrom. It is not limited to surveys of 
 the surface of the land, but also includes underground surveys, as where a 
 tunnel has been run underground arid materials have been removed from it. 4 
 
 354. Trespass by Government Surveyors. " If trespasses of a temporary 
 character may be lawfully committed by a private corporation, in a work 
 preliminary to the construction of a railroad, without compensation, then 
 it would seem that the same acts committed, under the direction of the 
 
 1 Galveston, etc., R. Co. v. Pfeuffer, 56 3 See Eaton v. B. C. & M. Railroad, 51 
 Tex. 66 (1881); Forbish v. Goodwin, 25 N. H. 504. 
 
 N. H. 425; May v. Slade, 24 Tex. 205. * Howe's Cave L. & C. Co. v. Howe's 
 
 2 Cushman v. Smith, 34 Me. 256. Cave Assn. (Sup.), 34 N. Y. Supp. 848. 
 
354- OPERATIONS PRELIMINARY TO CONSTRUCTION. 238 
 
 President of the United States, in executing the provisions of an act of 
 Congress, with ample provision for the assessment of damages, might be 
 authorized without requiring payment or security in advance." May trees be 
 constitutionally cut without any compensation by a private corporation, 
 preparatory to constructing a railroad, which cannot be constitutionally cut 
 by the President of the United States for an important public use without 
 payment or security in advance ? Perhaps the injury done by the latter would 
 originally be greater than that done by the former, but the constitutionality 
 of the acts does not depend upon the extent of the injury done. Whatever 
 reasons may have induced courts to decide that the temporary injuries to 
 which we have referred may be allowed without violating any constitutional 
 rights, a satisfactory ground upon which decisions may be based is that it was 
 simply unavoidable. It is necessity, in a great degree, which justifies the 
 right of eminent domain in all cases. 
 
 In a leading New York case 1 on this subject, which has been cited as 
 decisive in the favor of the plaintiff, the Chancellor, in holding that " before 
 the legislature can authorize the agents of the state, and others, to enter 
 upon and occupy, or destroy, or materially injure the private property of 
 any individual, except in cases of actual necessity which will not admit of 
 any delay, an adequate and certain remedy must be provided whereby the 
 owner of such property may compel the payment of his damages," recognizes 
 that there may be cases of necessity in which the rule he lays down will not 
 apply. A similar exception is recognized in other authorities which sustain 
 the doctrine of the New York case. The settled and fundamental doctrine 
 is that the government has no right to take private property for public pur- 
 poses without giving compensation, and it seems to necessarily imply that the 
 indemnity should, in cases which will admit of it, be previously and equitably 
 ascertained, and be ready for reception, concurrently in point of time with 
 the actual exercise of the right of eminent domain." * " The maxim of law 
 is that a private mischief is to be endured rather than a public inconvenience. 
 Tf. a common highway be out of repair, a traveller may lawfully go through 
 an adjoining private inclosure. " 3 
 
 The inconvenience of procuring an assessment for damages, or of giving 
 security for their payment in advance, of an actual appropriation of land as a 
 site for permanent buildings, or as a reservoir for purposes of flowage, would 
 be serious, or so far impracticable as to render a right to enter, subject to 
 such conditions, of little or no value, and would greatly obstruct, if not 
 altogether defeat, important public improvements. This case presents 
 another instance in which the doctrine of necessity may be properly invoked. 
 v The practical effect of holding that the defendant could not enter upon 
 
 1 Bloodgood v. Mohawk & Hudson Orr v. Quimby, 54 N. H. 590 [1874]. 
 Company, 18 Wend. 9, 17. 3 2 Kent Com. (i2th ed.) 338; Broom's 
 
 * 2 Kent Com. (i2th ed.), note/. See Maxims 2. 
 
239 INVASION OF PROPERTY RIGHTS BY SURVEYORS. 355. 
 
 the plaintiff's land for the necessary purposes of a coast survey, or that he 
 could not do any substantial injury there after he had entered, without pre- 
 voiusly paying or securing plaintiff for the damage to be caused, would be to 
 deny the right altogether. An assessment of the damages previous to the 
 entry, or even previous to the injury, would be absolutely impossible. The 
 damage done to the landowner by an entry upon his land ' ' for the purpose 
 of exploring, surveying, and triangulating the said coast, and for the purpose 
 of leveling the same and doing any and all other necessary acts to effect the 
 objects of the said several acts of Congress," could rarely if ever be ascertained 
 in advance. At what point the agent of the government might need to erect 
 temporary works, or over what lands they might have occasion to construct 
 temporary roads, no human power could tell before entry. What trees or 
 tree-tops or branches it might be necessary for them to remove from the line 
 of sight could not possibly be ascertained, except by an actual experiment 
 upon the ground. Obviously there could be no hearing before the commis- 
 sioners for the assessment of the damages until after the mischief was all or 
 nearly all done. 
 
 An entry upon and a temporary use of private property by the public for 
 a preliminary survey, without compensation, are justified by the authorities. 
 Whether there is any limit to the uncompensated damage that may be done 
 by preparatory steps of that kind; what the limit is, if there is any; and 
 whether such entry and use are an exercise of the police power, 1 are questions 
 that seem not to be settled. 2 
 
 The entry and injury must be reasonably necessary for the purposes of the 
 survey or the trespasser will be liable to an action of tort. And an unneces- 
 sary entry and destruction of property is not excused because the trespasser is 
 an agent of the United States, in the service of the Coast Survey, or is acting 
 under the authority of an act of the legislature specially authorizing the entry 
 and erection of works. 
 
 355. Surveyor's Interference with Travel on Highways, To what 
 extent a surveyor may occupy a road with his instrument, to the delay of 
 travel, must be a question depending upon circumstances. Generally the 
 rights of individuals to the occupation and use of a street or part of a street 
 are equal. A surveyor can delay traffic no longer than a vehicle or a person, 
 which would be determined by what was reasonable. Primarily streets are 
 for travel. To what extent they may be used for surveying purposes is not 
 well settled by the courts. What is a reasonable and proper use of a public or 
 private way depends much upon public usage. The general use and acquies- 
 cence of the public is evidence of right. The owner of land may make such 
 reasonable use of the way adjoining his land as is usually made by others 
 similarly situated. In populous towns, where land is valuable, it is the 
 custom to build to the line of the street. Building materials are placed in 
 1 Winslow v. Gillford, 6 Cush. 327. 2 Orr v. Quimby, 54 N. H. 590 [1874.] 
 
355- OPERATIONS PRELIMINARY TO CONSTRUCTION: 240 
 
 the street to the inconvenience and annoyance of the public, and excavations 
 are made and embankments raised. Streets are blocked for brief intervals of 
 time by trucks delivering materials, and for longer intervals by excavations 
 for conduits to convey gas, water, and electricity. Surveying operations are 
 necessary to these public improvements and to private work, and because of 
 this it is equally reasonable that the public should put up with some incon- 
 venience that they may be conducted. The time that such inconvenience 
 may be imposed upon the public should be short and reasonable; it generally 
 should not exceed three to ten minutes. 
 
PART III. 
 
 DETERMINATION OF THE BOUNDARIES OF 
 LAND. SURVEYS AND SURVEYING. 
 
 CHAPTER XX. 
 
 BOUNDARIES IN GENERAL. HOW DESCRIBED, ESTABLISHED, 
 
 AND MAINTAINED. 
 
 361. Relation of Law and Surveying. In order to understand questions 
 and disputes pertaining to lands, some knowledge of the rights and privileges 
 incident to land is necessary. Yet how few surveyors and engineers have 
 anything but the most superficial knowledge of property, or the rights of the 
 owner in his estates ! As a result, it is not surprising that the courts are full 
 of controversies in regard to their boundaries. The lawyer having little 
 knowledge of surveying, and the surveyor less knowledge of law, mischievous 
 results are brought about by the advice of the one profession, in opposition 
 to the views and teaching of the other profession. The opinions of the 
 lawyer are usually disregarded in the field, and the opinion of the surveyor 
 suffers a like disregard in the law office and court-room, and the result is 
 expensive and needless litigation, which might easily be avoided by a careful 
 study of the rights and privileges of landowners and of the general law of 
 boundaries, and by a proper application to the case of the sound principles 
 of survey and an intelligent consideration of the practices, customs, and 
 usages of surveyors and engineers. 
 
 362. Boundaries Described in Deed of Conveyance. In locating or sur- 
 veying a piece of property, the surveyor's primitive source of information is 
 the contract, warrant, grant, or deed describing the piece of property to be 
 located. There should be found a clear and complete description of the 
 property; it should comprise a careful description of the property with refer- 
 ence to permanent and established monuments, lines, or bounds, and these 
 with reference to one another. As an engineer in construction work finds his 
 
 241 
 
363. OPERATIONS PRELIMINARY TO CONSTRUCTION. 2^2 
 
 relations, duties, powers, and obligations defined and described in the con- 
 tract, so the surveyor must look for his instructions to the grant or deed 
 describing the property to be measured or surveyed. The deed, old maps, 
 field-notes of old surveys, and statements of landowners in the vicinity will 
 assist materially in making out and locating a line in controversy, but the 
 record of the survey should be found in the grant or deed of conveyance. 
 The surveyor's duties are not limited to a careful examination and study of 
 the description by monuments, metes, and bounds, but he should also note 
 carefully the dates, the names of the parties, the grant, and such references 
 as are made to other lands and persons. He should study the case to make 
 himself familiar with its history for as many years as is possible, to the end 
 that he may do justice to the parties interested. 
 
 363. Phraseology of a Description is Important, The phraseology of a 
 description is a very important consideration in describing a survey. If the 
 draftsman be not careful and precise in his language, he may do irreparable 
 injury to his client. The use of simple words such as " shore," " bank," 
 and*" stream," or "by, " "along," "on," and " by the side of," are often 
 important in determining the boundaries of land, for they have particular 
 meanings in the law. The surveyor should also remember that the line he 
 runs out or surveys is not always the one to incorporate in a deed or descrip- 
 tion; but, in describing land, he should include within the deed all the land 
 that his client rightly owns or has just claims to. Old descriptions should 
 not be repeated, but may be incorporated by reference and a declaration in the 
 deed of conveyance that " the survey includes all that tract of land conveyed 
 
 to John Smith by John Doe by deed dated and recorded in , 
 
 and certain other lands acquired by John Smith by descent [or purchase, or 
 adverse possession, or accretion, etc.], and described as follows: ..." 
 
 Such a practice would clear up many old titles and ambiguous descrip- 
 tions, and set at rest once for all a common source of trouble and litigation 
 between neighboring landowners. There should be a clear reference to titles 
 and descriptions of earlier conveyances, so that the chain of title can be fol- 
 lowed, and a careful explanation of the variance between the new and the old 
 descriptions should be included. The universal practice of attorneys to per- 
 petuate old descriptions of estates, drafted from surveys made with, a Jacob 's- 
 staff and from distances that were paced, is to be condemned, and can be 
 excused only by a desire to be extremely cautious and to save themselves or 
 their asociates trouble when they have to search the title at some future day. 
 More good would result if they would correct defective descriptions by having 
 the land surveyed and thus save their clients litigation over boundaries loosely 
 defined and described. 
 
 364. Boundaries Defined. A boundary is the delineation of the limits of 
 a tract of land, or the separation, natural or artificial, which marks the con- 
 fines or lines of division of two adjoining estates. These limits may be 
 
243 BOUNDARIES IN GENERAL. 367. 
 
 pointed out and determined by reference to a variety of things having some 
 connection with the land and indicating its extent. 
 
 365. Government Boundaries. Boundaries of our country and of its 
 numerous subdivisions are fixed and determined in the same manner as are 
 those of private estates. Whether located by natural or artificial lines and 
 monuments, their determination differs from those of private lands only in 
 their size, magnitude, and extent. What may be said of private boundaries 
 will apply for the most part to those of the larger divisions, as towns, counties, 
 and states. When there are material differences they will be pointed out. 
 
 The settlement or adjustment of a disputed boundary-line between states 
 requires not only ratification by the state, but the assent of Congress, before 
 the line as adjusted can be accepted as binding. 1 
 
 A public boundary-line established by authority of the government is bind- 
 ing on all citizens and all private interests, and the grounds or correctness of 
 its establishment cannot be inquired into in a suit between private persons. 2 
 
 366. Boundaries Defined by Monuments. Property is generally described 
 with reference to fixed marks, lines, or stations ; and if these were permanently 
 fixed and definitely described there would be fewer disputes and much less work 
 for both surveyors and lawyers. The great difficulty and expense of erecting 
 permanent monuments has led to the adoption of natural features, such as 
 streams, ponds and lakes, rocks, and trees. These are subject to changes 
 and decay, and their diversions and natural variation have involved this subject 
 in complication and disorder. These changes, together with the universal 
 element of ignorance and carelessness characteristic of the human race, are 
 what create the questions discussed in this work. Natural or artificial marks 
 which indicate the confines or lines of division of contiguous estates are called 
 boundaries. 
 
 The description should not only securely locate the lot, but it should con- 
 tain more than merely enough to secure its location at the present time. The 
 surveyor must look for future changes and transformations to which property 
 may be subjected. Streets and roads are straightened and made wider as 
 traffic increases ; whole districts are burned over, and when rebuilt their plan 
 is changed ; streams are constantly encroaching or receding upon estates which 
 they bound ; neighbors, in their strife for gain, are making changes to benefit 
 themselves even to the loss of adjoiners ; adjacent parcels of land are acquired 
 by one proprietor, bounds destroyed, and again the whole is subdivided. All 
 such changes the surveyor should anticipate, and meet the varying conditions 
 in his description and location. 
 
 367. Boundaries How Established. Boundaries of land are established 
 or defined in different ways, depending largely upon the manner in which 
 titles to estates are acquired, viz., by grant or by law. When land is acquired 
 
 1 New Castle Circle Boundary Case (C. 2 Hitchcock v. Southern Iron & T. Co. 
 
 P.), 6 Pa. Dist. R. 184. (Tenn. Ch. App.), 38 S. W. Rep. 588. 
 
368. OPERATIONS PRELIMINARY TO CONSTRUCTION. 244 
 
 by grant the boundaries are defined in the deed or patent, which description 
 is a very essential part of every grant. The description is the part of the deed 
 with which the surveyor has to deal. Its interpretation, construction, and 
 application are the first things to be considered in the field operations of 
 surveying. 
 
 Land is or should be described by designating a permanent and accessible 
 starting-point, which may be easily found. A well-defined starting-/0z/, in 
 its strict sense, is not a well-defined object, but some particular point on that 
 object, as a cross or crowfoot on a rock or a metal plate, or a metallic plug 
 inserted or securely fastened in a hole, or the center of a monument, be it a 
 tree, stump, wall, or other natural or artificial object. This starting-point 
 should be permanent, fixed, and indestructible, and it should be accessible for 
 all the purposes of surveying, and adapted to the uses of ordinary surveying 
 instruments. It should be a point at which the end of a tape can be held and 
 over which a surveying instrument can be placed ; and if the survey has to do 
 with levels, it should be a point upon which a leveling-rod can be placed. 
 It should be high and dry, that it shall neither be flooded with water nor 
 subject to the action of frost and ice. It should not be in places of public 
 travel where, if occupied, it will interfere with the rights of the public. 
 
 Probably no feature of a description of land is more unsatisfactory to a 
 surveyor than the starting-point. Without a starting-point, properly defined 
 and designated, a description is of little use to a surveyor or to any one else, 
 for if the description fails to define the extent and locality of the land it con- 
 veys, then it is invalid as a conveyance and no estate will pass by the deed. 
 
 368. Boundaries Established by Law. When land has been acquired by 
 eminent domain, by prescription, or by adverse possession, a determination of 
 the boundaries is a mixed question of law and fact, and is determined by the 
 circumstances and conditions existing, which are subjects of proof by the 
 parties. For convenience, boundaries determined in this manner have been 
 designated as those determined by law, because they depend upon the 
 decisions of the court and the application of the statutes of the different 
 states. When land has been acquired by eminent domain its extent is 
 frequently determined by the statute which gave the powers of eminent domain 
 to the company exercising such powers ; and when the extent of land taken 
 has not been designated, it is usually provided in the statute that it shall be 
 designated and defined in the certain manner described, which must be exer- 
 cised strictly in accordance with the terms of the statute. Land acquired by 
 adverse possession will be limited to that actually possessed and occupied for 
 the full period of the statute of limitations. As to just what may be included 
 in such possession and occupation is a matter of law determined by statutes 
 and the decisions of each state, which are discussed in another part of this 
 book.* Boundaries may also be established by the acts of the owners of 
 * See Sees. 511-540 and 671-700, infra. 
 
245 BOUNDARIES IN GENERAL. 370. 
 
 adjoining estates, either by arbitration or by acquiescence and agreement 
 upon the line dividing or separating the lands. The determination of these 
 questions is also a matter of law.* 
 
 369. Boundaries Described by Natural Objects. Boundaries are usually 
 defined or designated by monuments. They may be either natural or artifi- 
 cial. The term monument as ordinarily applied is not a boundary, but a 
 point or object in the line of the boundary; this, however, is merely a 
 technical interpretation of the word. A monument may be a stream, or the 
 dividing-line of a watershed, a fence, or a ledge of rocks, and as such it may 
 constitute the boundary of an estate or tract of land. Natural objects used 
 as monuments include streams, mountains, hills, rocks, trees, stumps, 
 hedges, and other natural features frequently found upon land, and these are 
 most frequently used in the description of estates; but they are not for that 
 reason to be considered the best. A stream is not fixed, and its location may 
 vary many feet from year to year. A mountain or hill is a very indefinite 
 object, and as a means of locating a definite line is utterly useless unless it 
 be used as a far-distant object, merely to give the direction of the line. Trees, 
 marked or described, are the most common objects used to determine the 
 limits of a tract of land, and they are in many localities the best monuments 
 to be found. Hedges are quite as good when consisting of full -growth trees 
 set in a straight line and sufficiently described. Usually when such natural 
 objects are described as monuments the center of such objects is taken as the 
 starting-point, or point through which or to which the boundary-line is 
 carried or measured, f 
 
 370. Boundaries Described by Artificial Monuments. Artificial monu- 
 ments include structures erected by man, either expressly for the purpose of 
 designating points in the boundary or for other purposes, and utilized to 
 describe the limits of an estate. The former- class includes stone monuments, 
 steel rods, or pipes, and the common "stake and stones," also structures 
 erected for inclosures, such as fences, walls, and curbs. The latter class 
 includes buildings, bridges, dams, and other structures, such as embankments, 
 levees, and sea-walls. For permanency and accessibility the ideal monument 
 is an artificial monument. If properly erected, it is in every respect better 
 and more satisfactory to surveyors, and is less likely than a natural monument 
 to lead to disagreements and controversies between the owners of adjoining 
 estates. If misplaced or destroyed, it is more ordinarily subject to detection 
 and may be more certainly restored and fixed. It may or may not be 
 destroyed or misplaced; but it is certain that most forms of natural monu- 
 ments are perishable arid movable. Natural rocks in most localities are 
 moved by frost and water, streams are constantly subject to lateral move- 
 ment, trees decay and are destroyed, and hedges are subject to lateral growth, 
 which make the line indeterminate. Artificial monuments are usually placed 
 
 * See Sees. 491-510, infra. \ See Sees. 602-606, infra. 
 
37- OPERATIONS PRELIMINARY TO CONSTRUCTION. 246 
 
 in fields or on elevations which are least subject to destructive influences, and 
 they may be further protected by suitable drainage and by such artificial 
 treatment as shall make them practically imperishable. A wall may crumble 
 and decay, but, if of considerable length, enough will remain to determine 
 definitely a boundary-line. An iron pipe filled with cement may rust, but the 
 cement will remain practically imperishable. A stake may rot, but the stones 
 piled around it will be enduring witnesses to its location. For these reasons, 
 and because of the additional fact that such artificial monuments are easily 
 accessible, they are to be preferred in almost all instances. 
 
 A monument may be a combination, natural and artificial, as in the case 
 of a copper plug inserted into a hole drilled into a rock. The rock is a 
 natural monument, and the copper plug is an artificial monument designating 
 the precise point of the line or angle of the survey. A tree or several trees 
 may witness the location of an artificial monument if the distances and direc- 
 tions from the former be known. Such a combination monument in which 
 natural objects are used as witnesses, while the actual point is an artificial 
 object which is easily accessible to persons and instruments, represents the 
 ideal monument in a survey. If the artificial monument be destroyed or mis- 
 placed, the natural object affords a witness by which it can be relocated, and 
 the point where the artificial monument was placed will afford a good station 
 for surveying instruments when it becomes necessary to relocate the land at 
 the lines of the survey. A tree, wall, hedge, or rock is anything but a 
 desirable monument when it is required to do instrumental work. The work 
 in getting around such monuments increases the labor and expense of 
 relocating the land, and they are an unnecessary source of annoyance to a 
 surveyor. 
 
CHAPTER XXI. 
 
 BOUNDARIES ON WATERS. SHIFTING CHARACTER. ACCRE- 
 TION, EROSION, RELICTION, AND RECLAMATION. 
 
 371. Boundaries Described by Natural Bodies of Waters. Natural 
 bodies of water and streams are very often designated as boundaries or divid- 
 ing-lines of estates. Water is of inestimable value to land. For purposes of 
 husbandry, manufacture, and commerce its uses are manifold. Lands 
 without streams or bodies of water are barren and unproductive and of little 
 use or value. We therefore find that when land is subdivided both the 
 grantor and the grantee seek to retain to their respective estates the water- 
 rights which are to be had, and the most convenient or natural way to secure 
 them is to make the center of the stream, the dividing-line, thus dividing its 
 uses and benefits between the adjoining owners. 
 
 The benefits thus secured to the estates are considered of such great value 
 to their owners as to offset any losses and damages incident to the unstable 
 character of a living boundary, for,, however much a stream may encroach, 
 and however destructive its action upon the land, generally its inherent value 
 will outweigh the damages resulting. 
 
 372. Boundaries Defined by the Sea are Not Fixed and Permanent. A 
 boundary upon the sea is not a fixed and established line, but is one that is 
 subject to constant change, the encroachments of the sea upon the land, and 
 the accretions that may be gained, rendering it in almost every case ever- 
 changing. The generally poor and unproductive character of low beaches 
 and shores where disputes would arise renders the question of an accurate 
 determination unnecessary as a rule; but at popular resorts on beaches, and 
 in cities where docks and wharves are constructed, .it at times becomes 
 important. A boundary located with the most extreme care might be changed 
 by the first storm and heavy sea. 
 
 By the common law, if by slow, gradual, and imperceptible degrees soil 
 and matter be cast up, deposited, and settled, and land thus slowly and 
 imperceptibly made, it belongs to the shore-owner. The law is a just one 
 whether the result of custom or of privilege or of a presumed law. Such lands 
 being barren and unproductive are of no value generally to the government 
 
 247 
 
373- OPERATIONS PRELIMINARY TO CONSTRUCTION. 248 
 
 or to any one else. The adjoining owner acquires title to them on the same 
 principle by which all titles to lands have been originally acquired, viz., by 
 occupation and improvement. A narrow strip of land, almost imperceptible 
 in breadth, barren, and constantly liable to inundation, would remain perhaps 
 forever barren and uncultivated but for this law. It is the labor of the person 
 who occupies it, who perhaps makes it secure by embankments, who by culti- 
 vation and protection renders it productive, that gives it value. The original 
 deposit constitutes not a tenth part of its value; the other nine-tenths are 
 created by the person who has occupied it, and, in the words of Locke, ' ' The 
 fruits of his labor cannot without injury be taken from him/' Furthermore, 
 the land so acquired is but a reasonable compensation for losses that fre- 
 quently happen from inundation and encroachments by the sea upon the 
 land, and which these owners must suffer. 1 * 
 
 373. Beaches, Shores, and Banks as Boundaries. By these terms is 
 understood the space between high- and low-water mark. 2 The words are 
 synonymous, and with reference to the sea belong to that portion of the land 
 which is alternately covered and left bare by the flux and reflux of the tide. 3 
 This definition is not inflexible. 4 A devise or grant of a beach for driftwood 
 will not include land covered by extraordinary inundations, but is limited to 
 the high-tide marks of ordinary seasons. 5 
 
 The term strand is synonymous with shore, and is that portion of the land 
 lying between ordinary high- and low-water marks. 6 
 
 The bank of a stream has been held to be the elevations of land which 
 confine the waters in their natural channel when they rise to the highest and 
 do not overflow the banks, and not the low-water mark to which the waters 
 recede at their lowest stage. 7 
 
 374. The High- and Low-water Mark. The expression "water-mark" 
 has been held to mean the line in which the surface of the water ordinarily 
 intersects the bank at high or low tide. 8 The low-water mark has been held 
 to be the mark to which the tide at its ebb usually flows. The point or line 
 to which the tide might ebb under an extraordinary combination of influences 
 will not form the boundary of the beach-owner, or enable the owner of flats 
 to ascertain satisfactorily the extent which he owns. Much less would other 
 persons employed in the business of commerce and navigation be able to 
 
 1 Gifford v. Yarborough, 5 Bing. 163; Div. 13. 
 
 St. Louis v. Mo. Pac. Ry. Co. (Mo. Sup.), 7 People v. Bd. of Supervisors, 125 111. 9 
 
 21 S. W. Rep. 202. [1888]; Paine Lumber Co. v. United 
 
 2 Cutts v. Hussy, 15 Me. 241; Dana v. States (C. C.), 55 Fed. Rep. 854. But see 
 Jackson St. Wh. Co., 31 Cal. 118 [1866]. Halsey v. McCormick, 13 N. Y. 296, 
 
 3 Littlefield v. Littlefield, 28 Me. 184; which held "to the bank of a stream" 
 
 Starr v. Child, 20 Wend. 149. to carry the grantee to low water. And 
 
 4 Merwin v. Wheeler, 41 Conn. 14. see Hess v. Cheney (Ala.), 3 So. Rep. 791 
 
 5 Brown v. Lakeman (Mass.), 17 Pick. [1888]. 
 
 447- 8 Gerrish v. Union Wharf Co., 26 Me- 
 
 Stillman v. Burfeind (N. Y.), 21 App. 395. 
 
 * See Sees. 376-384, infra (Accretions). 
 
249 BOUNDARIES ON WATERS. SHIFTING CHARACTER. 374- 
 
 ascertain with ease and accuracy whether they are encroaching upon private 
 rights or not by sinking a pier or placing a monument. It is reasonable that 
 high- and low-water marks should be ascertained by the same rule. The 
 place to which tides ordinarily flow at high water becomes a well-defined line 
 or mark which at all times can be ascertained without difficulty. If the 
 boundaries of land were extended to that place to which the lowest deep tides 
 flowed, no certain mark or boundary could be determined. The same would 
 hold if the high-water mark were regarded as that line to which the highest 
 spring tides might flow. The best authorities therefore hold that the laws 
 have reference to the ordinary high- and low-water marks; that a line or 
 boundary at low-water mark becomes known and can be satisfactorily proved, 
 and that when once ascertained it will remain permanently established. 1 
 
 The high-water mark has been held, as between the riparian proprietors 
 and the public, to be the limit of the river-bed, and the river-bed has been 
 held to be the land which the river occupies long enough to destroy the 
 vegetation and to destroy its value for agricultural purposes. 2 
 
 On the Mississippi River in Iowa the high-water mark has been held to 
 be only the edge of the bank, and not to be the highest point to which the 
 river ordinarily rises in times of high water; and the river-bank is said to be 
 that portion of the earth which confines the water in its channel, which bank 
 in case of navigable streams is in some states held to belong to the public. 
 These banks are frequently overflowed in times of freshet, but in determining 
 the boundary-line between the banks and the bed of the stream freshets are 
 not to be considered. 3 
 
 A grant of a right to flood land to the high-water mark of a dam or pond 
 has been held not to give a right to raise the dam above the designated mark, 
 and to require that the dam be so maintained that the water will not rise 
 above the mark in the ordinary state of the stream. 4 The high- water mark 
 was held to mean the highest point to which the dam will raise the water in 
 the ordinary state of the stream. 5 
 
 High-water mark in respect to fresh-water rivers seems to be undefined 
 and quite uncertain. It may mean any stage of the water above its ordinary 
 height, and the line will change with every freshet or flood that may happen. 6 
 
 The owner of land bordering upon waters where the tide ebbs and flows, 
 or upon inland unnavigable waters where the tide does not ebb and flow, has 
 a legal right to possess and occupy the land between high- and low-water 
 mark, subject to a right of the state to take the land for its own use, or to 
 
 1 Gerrish v. Union Wharf Co., 26 Me. 3 See 29 Amer. & Eng. Ency. Law 826. 
 395; Ex farte Jennings, 6 Cow. (N. Y.) 4 Brady v. Blackington, 113 Mass. 245. 
 536; Storer v. Freeman, 6 Mass. 435, 5 Winkley v. Salisbury Mfg. jCo. 
 Com. v. Charlestown (Mass.), I Pick. (Mass.), 14 Gray 443. 
 
 180. 6 Howard v. Ingersoll, 13 How. (U. S.) 
 
 2 Houghton v. Chicago, etc., R. Co., 47 423. 
 la. 370 [1877]. 
 
37 S- OPERATIONS PRELIMINARY TO CONSTRUCTION. 250 
 
 Authorize it to be taken by a corporation for public use, and also subject to 
 the right of the public to use it in aid of navigation. Such an owner may 
 maintain ejectment against an intruder upon lands along, partly above and 
 partly below high-water mark. l 
 
 Low-water mark is the point to which the river recedes at its lowest stage. 
 High-water mark is the line which the river impresses upon the soil by cover- 
 ing it for sufficient periods to deprive it of vegetation and to destroy its value 
 for agriculture. 2 Low-water mark on the shore of a lake, as a boundary, is 
 ordinary low-water mark, or the level at which the water stands when free 
 from disturbing causes. 3 
 
 A river, therefore, in which the tide does not ebb and flow has no shores 
 in the legal sense of the term. It has ripas, but no litores. The word banks is 
 more properly employed, when speaking of rivers or streams, to designate the 
 land between the margin of the water of the stream at low-water mark and at 
 high-water mark. 4 While the banks are a part of the river, the river does not 
 include lands beyond the banks which are covered in times of freshet or 
 extreme floods, or swamps or low grounds which are liable to overflow but 
 are reclaimable for meadows or agriculture, or which, being too low for 
 reclamation, though not always covered with water, may be used for cattle to 
 range upon, as natural or uninclosed pasture. 5 
 
 The bed of a river is a definite, and commonly a permanent, channel, and 
 is the characteristic which distinguishes the water of the river from mere 
 surface drainage, and from water percolating through the strata of the earth. 5 
 To better understand the law of boundaries on banks and shores, a brief 
 survey of the law in respect to the property in beaches will be necessary. 
 
 375. Property in Beaches, Shores, and Banks, The law of boundaries 
 on beaches and shores does not differ materially from the law of boundaries 
 on other waters and ways, except where modified by the common law, by 
 early English customs, and by restrictions required by the crown or the 
 government. The control of the sea and its shores, of bays and navigable 
 streams, and of large lakes and ponds, is retained by the crown or state, that 
 it may defend its coasts, promote commerce, and encourage the growth and 
 development of its cities and manufactories. Fortifications must be erected 
 to protect it from invasion; lights constructed to assist navigation and 
 promote commerce; harbors must be deepened and inclosed, and made secure 
 for shipping; natural streams deepened and protected for transportation of 
 crops and other products from the interior; great lakes and ponds diverted 
 into vast systems of water-supply for agricultural, manufacturing, and 
 domestic purposes. 
 
 1 Sisson v. Cummings, 35 Hun 22, 106 (Wis.), 69 N. W. Rep. 990. 
 
 N. Y. 56. * Starr v. Child, 20 Wend. 149. 
 
 2 Paine Lumber Co. v. United States 5 Paine Lumber Co. v. United States 
 (C. C.), 55 Fed. Rep. 854. (C. C.), 55 Fed. Rep. 854. 
 
 3 Slauson v. Goodrich Transp. Co. 
 
251 BOUNDARIES ON WATERS. SHIFTING CHARACTER. 376. 
 
 The government must have free access and exclusive control of these im- 
 portant natural features of its domain. Delays and restrictions might bring 
 disaster and ruin to the country, and it is for these probable reasons that we 
 find, at common law, the sea, the shore, and all navigable streams, and the 
 soil beneath them, declared to be the king's. The same necessity requires 
 our own republican government to maintain the same rights that the common 
 law has bequeathed to it. It may therefore be expected that the boundaries 
 of these features will be restricted to such limits as shall not encroach, 
 encumber, or restrain the free public use and enjoyment of such property. 
 We therefore find that the law of boundaries upon bodies of water that are 
 navigable, or of such extent as to be of great public benefit, is different from 
 that upon smaller and less important streams and bodies of water. 
 
 This property is not directly vested in the Federal Government; but 
 generally the state is the exclusive proprietor and owner of all the soil upon 
 its maritime borders ordinarily washed by the tides, subject to any lawful 
 grants of the soil by the state or by the sovereign power which governed its 
 territory before the declaration of independence. * 
 
 376. Beaches and Shores Described as Boundaries. At common law the 
 sea that flows around our coasts and all the land to which no individual has 
 acquired a right by occupation and improvement belongs to the sovereign 
 power, the government. 2 The boundary of land on a common-law navigable 
 stream, i.e., or:e in which the tide ebbs and flows, is the high-water mark on 
 the shore. 3 
 
 As Mr. Tyler hi his book on Boundaries concludes, after an able discus- 
 sion of the authorities on this subject: " It is the settled principle in the laws 
 of this country and of England that exclusive rights of owners of land 
 bounded by the sea, or, which is the same, on navigable rivers where the tide 
 ebbs and flows, extend only to high-water mark, and that the shore below 
 common, but not extraordinary, high-water mark belongs to the state as 
 trustee for the public. In England the crown, and in this country the people, 
 have the absolute proprietary interest in the shore of these waters, though it 
 may by grant or prescription become private property. The grantee of such 
 shore does not take a fixed freehold, but one that shifts as the shore recedes 
 or advances. 4 Whether the sovereign power of the state can grant to indi- 
 viduals a freehold interest in such shore and submerged soil is a question. 
 Franchises for the enjoyment of fishing, wrecking, ferries, and mining are 
 frequent, but to enjoy these does not require an absolute ownership of the 
 soil. 5 They are held by this sovereign power for the erection of public 
 defenses and for the uses of navigation, and for the benefit and enjoyment of 
 the public, as for fishing, bathing, etc. 6 
 
 1 Tyler on Boundaries, 32. Supp. 681; Stillman v. Burfeind (N. Y.), 
 
 2 Gifford v. Yarborough (Eng.), 5 Bing. 21 App. Div. 13. 
 
 163 [1828]. 4 Tyler's Law of Boundaries 39, 40. 
 
 3 2 Amer. & Eng. Ency. Law 504; De 5 See Tyler on Boundaries 36-40. 
 Lancey v. Piepgras (Sup.), 17 N. Y. 6 See Angel on Tide-waters 158. 
 
377- OPERATIONS PRELIMINARY TO CONSTRUCTION. 2 $2 
 
 In Oregon it has been held that the title to land over which the tide ebbs 
 and flows is in the state, and a conveyance thereof vests the absolute title in 
 the grantee. l 
 
 In Maine by statute and in Massachusetts by statute (1647) it is the low- 
 water mark that bounds shore-owners. Therefore, calls in a deed which 
 describe a parcel of land on the seashore as running "to the water," and 
 thence " by the water," carry the grant to low-water mark. 2 The title of an 
 owner of uplands in the adjoining flats extends, under the Massachusetts 
 Colony ordinance of 1647, where the tide ebbs and flows less than 100 rods 
 to the extreme low-water mark. 3 In Louisiana the land between the levee 
 and the river, though submerged at the high stage of the river, is the property 
 of the riparian proprietor, subject to public uses. 4 In New York state on the 
 Harlem River a description of a tract of land naming the river as its boundary 
 does not necessarily include land lying between high- and low-water mark on 
 said river. 5 
 
 377. Streams and Rivers as Boundaries. Effects of Erosion and Accre- 
 tion.* The shifting character of boundaries is not confined to large bodies 
 of water, but is equally characteristic of streams, both large and small. The 
 crooked sinuosities of natural streams make them subject to side currents and 
 consequent eddies that are constantly washing away soil in one place and 
 depositing it in another. The scouring and carrying power of water is little 
 appreciated by persons who do not belong to the scientific professions. If 
 one consider that the erosion of water increases as the square of the velocity, 
 and that the transporting energy increases as the sixth power of the velocity of 
 the current of the stream, he will better appreciate its destructive influence. 
 A simple illustration will explain its power to the untutored. If the ordinary 
 flow of a stream be two miles an hour and in times of flood it be increased to 
 six miles, its power of erosion becomes twice as great and its power of trans- 
 portation becomes seven hundred and twenty-nine times what it was at two 
 miles an hour. 
 
 This erosion is usually accompanied by accretion to the opposite side of 
 the stream, and by the continued action of the water the stream encroaches 
 upon one side and recedes from the other. This sidewise movement, though 
 slow and imperceptible for a day, may amount to considerable in a year, and 
 to many hundred feet in a century. In fact, the fertile flats of most valleys 
 are the result of this action of streams. If a stream is described as a 
 
 1 Bowlby v. Shively (Or.), 30 Pac. Rep. (Mass.), 31 N. E. Rep. 703. 
 
 154-160. ' 3 Sewall Cord Co. v. Boston W. P. Co., 
 
 2 Babson v. Taintor (Me.), 10 All. Rep. 147 Mass. 61 [1888]. 
 
 63 [1887]; Sewall Cord Co. v. Boston W. 4 Mathis v. Board of Assessors (La.), 
 
 P. Co. (Mass.), 16 N. E. Rep. 782, 147 16 So. Rep. 454. 
 
 Mass. 61 [1888]. As to what is low-water 5 Jarvis v. Lynch (Sup.), 36 N. Y. Supp. 
 
 mark, see Tappan v. Boston W. P. Co. 220. 
 
 * See Sec. 372, supra. 
 
253 BOUNDARIES ON WATERS. SHIFTING CHARACTER. 37/. 
 
 boundary, that boundary is shifting and will follow any gradual and imper- 
 ceptible movement of the stream, whether of recession or of encroachment of 
 the water. This is equally true whether the stream be navigable or non- 
 navigable, or whether such movement be solely due to natural causes, or to 
 such causes influenced and assisted by artificial works. 1 
 
 Strictly, accretion is the process of gradual and imperceptible increase of 
 land caused by the deposit of earth, sand, or sediment thereon by contiguous 
 waters. The increase should be so gradual that one cannot judge how much 
 is added in one moment of time. Alluvion is the addition made to land by 
 the washing of the sea or a navigable river or other stream, where the 
 increase is so gradual in its progress that it cannot be perceived how much is 
 added in any moment of time. Alluvion comprises soil and other things, 
 such as marine and water plants, seaweed, etc., which are washed up on the 
 shores of the stream by the action of water. In determining the law of 
 accretion it does not matter whether the waters be navigable or unnavigable, 
 fresh or salt, or whether they be affected by tide or current. Such questions 
 as to whether they are navigable, salt, or affected by the tide are considered 
 only in determining the ownership of the shores, bed, or bottom of streams. 
 Some authors have stated that the accretion or alluvion must be the result of 
 the natural action of the water; but^his is not the law in general, for it is 
 now pretty well settled that the addition by water and alluvion may be due 
 to the combined influence of natural and artificial causes. 2 
 
 The increase or accretion must be slow and imperceptible; and the test 
 as to whether an addition is gradual and imperceptible is that, though the 
 witnesses may see from time to time that progress has been made, they could 
 not perceive it while it was going on. 3 In all cases of gradual accretion which 
 cannot be ascertained from day to day, the land so gained goes to the person 
 to whom the land belongs to which the accretion is added. 4 
 
 In this country, on swiftly flowing streams, especially in times of flood, 
 the laws of accretion apply even when the change made by the force of the 
 current can be noticed while it is going on. 5 The law of accretion applies to 
 the Missouri River notwithstanding that, owing to the swiftness of its current 
 and the softness of its banks, the changes are more rapid and extensive than 
 in most other rivers. 6 Where the middle of a stream is the boundary-line of 
 land, and the water undermines the bank, and the soil caves in and mixes 
 with the water and is washed away, the owner must stand the loss; and the 
 middle of the new channel will be the boundary. 7 The fact that rapid 
 
 1 1 Amer. & Eng. Ency. Law 137; Denny W. 327. 
 
 v. Cotton (Tex.), 22 S. W. Rep. 122. 5 Denny v. Cotton (Tex.), 22 S. W. 
 
 2 1 Amer. & Eng. Ency. Law (2d ed.) Rep. 122. 
 
 467-468. 6 Nebraska v. Iowa, 12 Sup. Ct. Rep. 
 
 3 County of St. C. v. Livingston, 23 396. 
 
 Wall. 46: Mulry v. Norton, 100 N. Y. 7 Bouvier v. Stricklett (Neb.), 59 N. W. 
 
 424 [1885]. Rep. 550. 
 
 ^Matter of Hall & Selby Ry., 5 M. & 
 
378. 
 
 OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 254 
 
 changes in the banks of the Missouri River are constantly going on, and 
 that forty acres of land have been added to an adjoining tract, will not 
 overthrow an averment that the increased territory was due to accretion, 
 and that it was by an imperceptible increase when it was twenty years in 
 forming. 1 
 
 The laws of accretion are so firmly established that it is followed in all 
 cases and gives rise to some curious problems. If land be owned by A, B, 
 and C, as shown in Fig. a, and the 
 stream be named as the boundary 
 between B and C, and the stream 
 encroaches upon B until B's land 
 is entirely worn away and then the 
 stream subsequently works its way 
 back to its former place, the ques- 
 tion arises as to who owns the 
 original estate of B. It is con- 
 tended that C would own it. 2 
 
 If the sea slowly recedes or the 
 
 land is gradually elevated, the same principle applies, and the land belongs 
 to the proprietor to whose land the gain is made; 3 and where the sea, instead 
 of retreating, encroaches upon the land, the property gradually submerged 
 belongs to the state. 4 
 
 378. Accretions go to Riparian Owners. The title to alluvion vests 
 exclusively in riparian proprietors. 5 To claim title to accretions as such, 
 there must be actual contiguity; any separation of the claimant's land from 
 the alluvion by the land of another will defeat his claim. 6 To be a riparian 
 owner, his land must touch the shore of the lake or stream, 7 or he must 
 own the bed of the stream or body of water in which the alluvion is depos- 
 ited. 8 
 
 Where land which formerly fronted upon a river was conveyed by deed by 
 its section number, it passed title to any land which had been added thereto 
 by accretion. 9 When described by lot number, referring to the official plot 
 of the government survey, it passes all accretions to the lot up to the date 
 of the conveyance. 10 
 
 FIG. 
 
 1 East Omaha Ld. Co. v. Jeffries, 40 
 Fed. Rep. 386. 
 
 2 Price v. Hallett (Mo.), 38 S. W. Rep. 
 451; Welles v. Bailey (Conn.), 10 All. 
 Rep. 565 [1887]. 
 
 3 i Amer. & Eng. Ency. Law 137, and 
 fasts cited. 
 
 4 Wilson v. Shiveley, n Oregon 215. 
 
 5 State v. Buck (La.), 15 So. Rep. 531. 
 
 6 1 Amer. & Eng. Ency. Law 138, and 
 gases cited. 
 
 7 Stark v. Miller (Mich.), 71 N. W. 
 
 Rep. 876; semble, Mulry v. Norton, 100 
 N. Y. 424. See Chamberlain v. Heming- 
 way, 63 Conn. i. 
 
 8 On this subject of rights to land made 
 by or resulting from accretions, reliction, 
 and avulsion, see 45 Cent. Law Jour. 
 148. 
 
 9 Tappendorf v. Downing (CaL), 18 Pac. 
 Rep. 247 [1888]. 
 
 10 Jeffries v. E. Omaha Ld. Co., 10 Sup. 
 Ct. Rep. 518. 
 
255 BOUNDARIES ON WATERS. SHIFTING CHARACTER. 3/8. 
 
 A's LAND 
 
 p IG 
 
 By Revised Statutes of the United States, 2396, it is provided that in those 
 portions of a fractional township where intermediate or interior corners have 
 not been fixed the boundary-lines shall be ascertained by running from the 
 established corners to a watercourse, etc. In construing this statute it was 
 held that, in surveying a lot bordering on a river, the watercourse became the 
 boundary, and continued so no matter how much it shifted by accretion, and 
 
 that a conveyance of the lot passed 
 title to all land accreted to such 
 lot. 1 Whether or not accretions 
 to land of one of two adjoining 
 riparian owners and which gradu- 
 ally extends in front of the land of 
 the other (Fig. b) belongs to the 
 former, to whose land it is added, 
 depends largely upon whether it 
 be a navigable or a non-navigable 
 
 stream, i.e., whether the bed of the stream belongs to the riparian owners or 
 to the state or to the public. If the bed belong to the state or the public, 
 then the accreted land will belong to the riparian owner to whose land it is 
 added. 2 * 
 
 When, therefore, land on a navigable stream was gradually and impercept- 
 ibly washed away, and the place where it had been remained for many years 
 the bed of the river, the riparian owner does not acquire title by accretion to 
 new land subsequently formed within his original boundaries, unless its forma- 
 tion began at high-water mark. 3 He cannot claim, as accretion, land beyond 
 a well-defined slough, 40 to 60 yards wide, which was the old channel of the 
 river, and through which water runs at certain seasons deep enough for naviga- 
 tion. 4 Lands made and formed between the shore line and the main channel, 
 whether such lands consisted of gradual accretions or islands formed in the 
 river, do not always belong to a riparian owner because they become attached 
 to his shore line. 5 
 
 If the land were an island formed in the Missouri River, and the river 
 channel ran permanently between said island and plaintiff's land as it was 
 originally surveyed by the government, and afterwards said channel was filled 
 up by overflow and deposit of sand and mud, so that the mainland and said 
 island became united, the island would not be an accretion to plaintiff's 
 land. 6 
 
 1 East Omaha Ld. Co. v. Jeffries, 40 
 Fed. Rep. 386. 
 
 2 Crandall v. Allen (Mo. Sup.), 248. 
 W. Rep. 172; Minton v. Steele (Mo.), 28 
 S. W. Rep. 746. 
 
 3 Wallace v. Driver (Ark.), 33 S. W. 
 Rep. 641. 
 
 *Crandali /. Smith (Mo. Sup.), 36 S. 
 W. Rep. 612. 
 
 5 Hahn v. Dawson (Mo. Sup.), 36 S. 
 W. Rep. 233. 
 
 6 Hahn v. Dawson (Mo. Sup.), 36 S. 
 W. Rep. 233. 
 
 * See Sees 424-426, infra. 
 
379- OPERATIONS PRELIMINARY TO CONSTRUCTION. 2$6 
 
 An island in a lake which existed as such prior to an early survey by the 
 government, but which was not then platted, and which by process of 
 accretion has become joined by a spit to the neighboring lot, is not a portion 
 of that lot. 1 
 
 However, when land was bounded by a stream in which was a sand-bar 
 covered during the greater part of the year with water, this alluvion sand- 
 bar was held to belong to the riparian owner even though the distance from 
 the bar across the water to the land was half a mile when it was uncovered, 
 and that the government surveyor in running the lines of the bank did not 
 survey it. 2 This case must be explained by the fact that the riparian owner 
 was regarded as the owner of the bed of the stream, which is in accord with the 
 civil law. 
 
 The party claiming the accretion must have been the owner of the land 
 when the suit was begun, and the land sued for, or some part of it, must have 
 been formed onto and against the lands owned by plaintiff by the deposit of 
 sand and mud. 3 
 
 An unauthorized agreement by the lessees of one riparian owner with the 
 adjoining riparian owner as to the division-line between the holdings in the 
 shallow waters of a navigable bay is void. 4 A lease of accretions by the lessor 
 in a former lease to another of land bounded by the bank of a river, executed 
 after the first lease and before a grant in fee to the lessee therein, does not 
 give the second lessee a reversion in the accretions, but the fee therein vests- 
 in the first lessee under his grant. 5 A lease for 99 years of land described as 
 bounded by the bank of a river includes future accretions. 6 
 
 379. Accretions to Public Streets and Ways. Accretions to a public 
 highway or land reserved for public use partakes of the same nature, and the 
 city holds title to it subject to the same uses and conditions. The title to it 
 may not be granted to a railroad company, though a right of way may be. 7 
 Accretions at the foot or end of a street are considered a continuation of the 
 street, and adjoining owners cannot close up the space between the river and 
 the end of the street, although by statute they can erect piers and bulwarks. 8 
 
 In Minnesota the rule that abutting owners take to the center of a highway 
 does not seem to hold where there is no abutting owner on the opposite side 
 of the way, as where the road runs along the shore of a navigable lake. Where 
 occupants of government lands had caused the same to be platted as a town 
 
 l Bigelow -v. ~ (la.), 52 N. W. Kehr (111. Sup.), 29 N. E. Rep. 553. 
 
 Rep. 124. 6 Cobb v. Lavalle, 89 111. 331; Rutz v. 
 
 2 Stephenson v. Goff (La.), TO Rob. 99. Kehr (111. Sup ), 29 N. E. Rep. 553. 
 
 But see 63 Tex. 330, and Railroad Com- 7 Cook v. City of Burlington, 30 Iowa 
 
 pany v. Schurmer, 7 Wall. 272 [1868]. 94; St. Louis v. Mo. Pac. Ry. Co. (Mo.), 
 
 3 Hahn v. Dawson (Mo Sup.), 36 S. 21 S. W. Rep. 202. And see Godfrey v. 
 W. Rep. 233 Altoona, 12 111. 29. 
 
 4 Northern Pine-land Co. v. Bigelow 8 People v. Lambier, .5 Denio (N. Y.)9; 
 (Wis.), 54 N. W. Rep. 496. Steers v. Brooklyn, 101 N. Y. 51. And 
 
 5 Haps v. Hewitt, 97 111. 498; Rutz v. see i Amer. & Eng. Ency. Law 139. 
 
2 $7 BOUNDARIES ON WATERS. SHIFTING CHARACTER. 380. 
 
 site, with a street along the shore of a navigable lake, and a lot fronting upon 
 the street before mentioned had been conveyed, describing the same in accord- 
 ance with the town plat, it was held that the fee title to the entire street to 
 low-water mark, including all riparian rights, passed to the grantee, and that 
 on a conveyance by him by the same description it passed to his grantee. 1 
 The soil of public roads belongs to the owner of the land on which they are 
 made ; and in case of roads bordering navigable streams, that ownership is 
 unimpaired except to the extent of the servitude imposed by law, which 
 confines the servitude to uses and works of a public character. 5 * 
 
 The Missouri courts have held differently, and that the owner of a city lot 
 bounded on one side by a street which is located along a river is not entitled, as 
 a riparian proprietor, to land formed by accretions on the opposite side of the 
 street. 3 
 
 Where a riparian owner has dedicated a highway along a river to the public 
 and has not reserved a strip between the highway and the river, the accretions, 
 will become public and be subject to public uses. If the strip were marked on 
 the plan " Quay " or " Dock," or there were other words showing an intent 
 to dedicate it to the public, that fact would defeat the proprietor's claims 
 to accretions. 4 
 
 380. Ownership of Land Re-formed upon a Site Washed Away. If land 
 be washed away and then re-formed upon the same subsoil, it belongs to the 
 former owner if he can re-establish his old boundaries ; but if an island 
 has been washed away and accretions are deposited to and against the mainland, 
 then they belong to the proprietor of the mainland and cannot be claimed by 
 the* former proprietor of the island over whose site they are formed. 5 * If the 
 mainland has been carried away and an island has been formed over the 
 original site of the mainland, it belongs to the owner of the former site, though 
 the mainland was a fractional part of a section. 6 
 
 The title to land that is overflowed and subsequently reappears remains in 
 the original owner, if the original boundaries can be identified, no matter how- 
 long it may have been submerged. The same is held of an island that has dis- 
 appeared and afterwards reappears. For a proprietor to lose his title to land by- 
 erosion or submergence the land must be transported beyond the owner's. 
 boundary. 7 This is true even when the land is washed away by a sudden and 
 
 1 Wait v. May (Minn.), 51 N. W. Rep. chaises. Maginnis (La.), n So. Rep. 715. 
 471; Municipality v. Cotton Press, 18 * Municipality v. Cotton Press, 18 La. 
 
 La. 122; I Amer. & Eng. Ency. Law 139. 122; Wetmore z/. Atlantic, etc\, Co., 37 
 
 3 Bradley v. Pharr (La.), 12 So. Rep. Barb. 70; Banks v. Ogden, 2 Wall. 57. 
 618. 5 Buse v. Russell, 86 Mo 209. 
 
 8 Lebeaume v. Poctlington, 21 Mo. 36; 6 Cox v. Arnold (Mo.), 31 S. W. Rep. 
 
 Smith v. Public Schools, 30 Mo. 294; 592. 
 
 Ellinger v. Missouri Pac. Ry. Co. (Mo. 7 Mulry v. Norton, 100 N. Y. 424 [1885]; 
 
 Sup.), 20 S. W. Rep. 800. But see a Minton v. Steele (Mo. Sup.), 28 S. W. 
 
 Louisiana case Succession of Dela- Rep. 746. 
 
 * See Sec. 377, p. 254, diagram, supra. 
 
OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 2 5 8 
 
 perceptible process. 1 The fact that land is not first made on the shore or bank 
 is not material to the title of the adjacent owner, provided that the deposits 
 ultimately blend with the adjacent land by the action of the river. 2 
 
 When a portion of defendant's land was washed away, and afterwards the 
 land was re-formed within the limits of such land, the land so formed does not 
 become the land of defendant if it consist of accretions to plaintiff's land. Such 
 accretions belong to plaintiff if they began upon his land. 3 
 
 Where the lands of original adjoining upland owners P and D became sub- 
 merged by a change in the bed of the river (Fig. c), after which the river 
 receded from P's land and en- 
 croached on the land of D until it 
 passed the original boundary, it was 
 held that by the submersion the 
 original line ceased to exist, and P 
 became a riparian owner, with all 
 the accompanying rights of accretion 
 and reliction. 
 
 Whether the river was navigable 
 or non-navigable, P was held entitled 
 to all accretion to his land, though 
 it extended in the first case beyond 
 the original high-water mark, or in 
 the second case beyond the original 
 center of the stream. Even though 
 
 a portion of P's original lot last submerged was formerly an upland corner, it 
 was held that nis rights to accretion were not limited to "his original boundaries^ 
 but included all accretions within lines drawn from the termini of his upland 
 boundaries, at right angles with the general course of the stream, although it 
 was thus made to include land originally belonging to D. 4 
 
 Whether or not land formed in the changing bed of a river is an accretion 
 to a tract formerly on the shore of a river, or whether it is newly made land 
 unattached thereto, is a question for the jury. 5 
 
 381. Accretions to Lands upon Lakes, Ponds, and Harbors. The same 
 rules of accretion and reliction apply to lands upon natural lakes and ponds, 
 and for the same reasons, unless the description shows an express intention to 
 the contrary. Owners of land upon lakes, whether navigable or not, have title 
 to land left dry by the gradual and imperceptible recession of the waters. 6 An 
 
 FIG. c. 
 
 1 Wallace v. Driver (Ark.), 33 S. W. 
 Rep. 641. 
 
 2 Minton v. Steele (Mo. Sup.), 28 S. W. 
 Rep. 746. 
 
 3 Naylor v. Cox (Mo. Sup.), 21 S. W. 
 Rep. 589; Price v. Hallett (Mo. Sup.), 
 38 S. W. Rep, 451. 
 
 4 Welles v. Bailey (Conn.), 10 Atl. Rep. 
 565 [1887]; Price v. Hallett (Mo. Sup.), 
 38 S. W. Rep. 451. 
 
 5 Price v. Hallett (Mo ), 38 S. W. Rep. 
 451; Bennett v. Nat. Starch Co. (Iowa), 
 72 N. W. Rep. 507, deposits from sewers. 
 
 6 i Amer. & Eng. Ency. Law 137. 
 
259 BOUNDARIES ON WATERS. SHIFTING CHARACTER. 381. 
 
 exception has been made in Louisiana in the case of Lake Pontchartrain, where 
 it was held that accretions belonged only to lands adjacent to streams and 
 rivers. This is not the universal law, and is believed to be the only exception to 
 the general rule. 1 Land reclaimed from the water of a harbor comes within 
 the same rule and belongs to the owner of the adjoining property. 2 
 
 Property rights in accretions depend upon the common -law right, for reasons 
 before stated ; and for the further reason that a stream, beach, lake, or pond 
 is of so great benefit and value to an estate that encroachments upon one 
 owner and consequent loss of land are regarded by the law as trifling, 
 compared to the loss of a stream or body of water. Hence the rule that a 
 proprietor follows the water however much it recedes or changes, if it be 
 gradual and by imperceptible degrees. He is not, therefore, to be deprived of 
 it "because the land has been added by artificial means. This is true 
 if the land is added by filling, and the title to the land so filled and ac- 
 quired is not from any grantor, but directly from the state. 3 Where harbor 
 lines and limits have been established by the state, it gives an implied 
 permission to all coterminous owners to fill out to such line, but no further. 4 
 It seems from the same cases that natural accretion is limited to the harbor- 
 line. This, when established, defines the line of navigation of the river, and 
 fixes the limit out to which the riparian owners may erect wharves, docks, and 
 other proper structures, and is binding upon the court in apportioning the 
 water front among the parties entitled thereto. 5 
 
 A riparian owner cannot acquire title to land in his front, under the waters 
 of a navigable river and below high-water mark, by filling up and displacing 
 the water with soil from his land. 6 Land made by filling in the space between 
 high- and low-water mark, under the right of the city of New York to 
 improve the tideway for the benefit of commerce, does not becorne the prop- 
 erty of the riparian proprietor, as an accretion, but remains, as dry land, the 
 property of the city, under its grants, as much as when it was still land under 
 water. 7 * 
 
 In the city of San Francisco the owner of a lot upon the water front of the 
 bay has been held not a riparian owner in the sense in which that word is 
 used in the law of tide-waters, because the water front of San Francisco wa s 
 created by a statute. The owner, therefore, of such a lot has no right to enter 
 
 teller v. Southern Yacht Club, 34 La. Co., 31 Cal. 118. 
 
 Ann. 837. See Municipality v. Cotton 5 Gronerz'. Foster (Va.), 27 S. E. Rep. 
 
 Press, 18 La. Rep. 122. 493. See Welch v. Oregon Ry. & Nav. 
 
 2 Lockwood v. N. Y. & H. Ry. Co., 37 Co. (Oreg.), 56 Pac. Rep. 417 [1899]. 
 
 Conn. 387. 6 Saunders v. New York Cent. & H. R. 
 
 8 Bailey v. Burges, n R. I. 330 [1877]. R. Co. (N. Y. App.), 38 N. E. Rep. 902. 
 
 4 Engs v. Peckham, n R. I. 290 [1877] ; 7 Sage v. City of New York, 154 N. 
 
 Bradshaw v. Duluth Mill Co. (Minn.), Y. 61. Many grants in New York State 
 
 53 N. W. Rep. 1066; Bailey v. Burgess, are governed by the Law of Nether- 
 
 ii R. I. 330; Dana v. Jackson St. Wharf lands. 
 
 * See Sec. 401, infra. 
 
382. OPERATIONS PRELIMINARY TO CONSTRUCTION. 260 
 
 on the increase of land by accretion or alluvion to the exclusion of the state, 
 nor can he maintain ejectment against a stranger. 1 
 
 Land outside of the harbor-lines is under navigable water and belongs to 
 the state. Where one, without right, enters on and fills up land under navi- 
 gable water, thereby raising it above the water, he acquires no title to such 
 land, and is not an adjacent owner within the statute. a 
 
 A riparian owner on a navigable lake may construct a pier below high-water 
 mark if ii: does not obstruct navigation; 3 and under an act authorizing the pro- 
 prietors of lots abutting on a river to wharf out and extend such lots, the pro- 
 prietors became owners of such extensions and iu ^rovements. 4 
 
 A city cannot by ordinance, under authority of the legislature, fix an arbi- 
 trary dock-line in a navigable river, in the bed of which the riparian owners 
 have absolute property subject only to the public right of navigation, without 
 notice to such owners. A dock-line cannot be fixed at a point in a navigable 
 river occupied by rapids, and entirely unfitted for navigation proper, and 
 where the center of the stream only is useful for floating logs. Such an act 
 would prevent the riparian owner from building out into the intervening 
 waters. 5 
 
 382. What may be Done to Prevent Encroachments or to Promote 
 Accretions.* The right to accretion depends in no*wayupon the owner main- 
 taining levees, enbankments, or other improvements. 6 The fact that accre- 
 tions are due wholly or in part to obstructions placed in the river by third 
 parties does not prevent the riparian owner from acquiring title thereto. 7 
 
 Any reasonable means may be taken to prevent the wearing away of, and 
 encroachment of streams upon, land. Trees may be planted, the bank may be 
 covered with stones, a wall or embankment may be built. 8 Where an embank- 
 ment is constructed for the protection of one's lands it is the duty of the owner 
 to take care not to direct the currents so as to occasion substantial injury to his 
 neighbor. If one has not been careful, and has not avoided such injuries as 
 could have been reasonably anticipated by a man of ordinary prudence and in- 
 telligence, he will be liable in damages for any injuries occasioned by his act. 9 
 The landowner's efforts must be confined to keeping the channel in its present 
 location, and he may not build a bulkhead and throw the current upon the 
 opposite shore. 10 If, however, a riparian owner shall have himself erected a 
 
 1 Dana v. Jackson St. Wh. Co., 31 Cal. 18 La. 122. 
 
 118 [1866]. ' 7 Tatum v. City of St. Louis (Mo. Sup.), 
 
 2 People v. Commissioners of Land 28 S. W. Rep. 1002. 
 
 Office (N. Y. App.), 32 N. E. Rep. 139. 8 i Amer. & Eng. Ency. Law 139; 
 
 3 Mills & Allen v. Evans (Iowa), 69 N. Wetmore v. Atlantic White Lead Co., 
 
 W. Rep. 1043. 37 Barb. 70. 
 
 4 Jacob Tome Inst. of Port Deposit v. 9 Crawford v. Rambo (Sup. Ct. Ohio), 
 Crothers, 40 Atl. Rep. 261. 22 Reptr. 529 [1886]. 
 
 5 Grand Rapids v. Powers (Mich), 50 10 i Amer. & Eng. Ency. Law 139. See 
 N. W. Rep. 661. also Diedrich v. R. R. Co., 42 Wis. 248. 
 
 6 Municipality No. 2 v. Cotton Press, 
 
 * See Sees. 131-137, supra. 
 
26 1 BOUNDARIES ON WATERS. SHIFTING CHARACTER. 383. 
 
 structure or placed an impediment in a stream, he cannot resist the claims of 
 an opposite owner to accretions acquired in consequence of such structures. 1 
 If filling has been wrongfully added to one's bank by other parties, without his 
 consent, as to the street opposite to proprietor's land, it will be regarded as 
 accretion, and so much as has been added to the owner's half of the street be- 
 comes his, and his boundary-line extends to the water's edge. 2 
 
 The fee in the streets, alleys, commons, and public grounds, lying on the 
 lake front of Chicago, is vested in the city, together with the riparian rights 
 appertaining thereto ; and these rights were not divested by the fact that the 
 Illinois Central Railroad occupied the lands underlying the immediate front, and 
 filled them in for its right of way, under authority of a city ordinance ; and the 
 city still has the right to exercise such riparian rights, subject to the terms of 
 the ordinance and to the authority of the state to prescribe the lines beyond 
 which no structures may be extended, and also subject to such supervision and 
 control as the United States may lawfully exercise. 3 
 
 The reclamation by the Illinois Central Railroad Company from the waters 
 of Lake Michigan of a tract 200 feet wide, extending along the front of the city 
 of Chicago, and the construction of its tracks, crossings, guards, etc., and 
 the erection of the breakwater on the east thereof, and the necessary works 
 for the protection of the shore on the west, all as required by the ordinance 
 under which it was permitted to enter the city, was held not to interfere with 
 any useful freedom in the use of the waters of the lake for commerce, foreign, 
 interstate, or domestic, or constitute such an encroachment upon the domain 
 of the state as to require the interposition of a court for their removal, or for 
 any restraint in their use. 4 
 
 The accumulation of a sand-bar in a stream is ordinarily one of those 
 natural results which neither party has any right to interfere with by direct 
 removal ; but where its accumulation is a common injury to both parties, either 
 would be justified in removing the sand-bar. 5 
 
 In apportioning the lands under the waters of the Elizabeth River among 
 riparian proprietors, no part of the port warden's line of navigation should be 
 excluded, but the whole should be apportioned among the parties. 6 
 
 383. Determination of Boundaries of Land Acquired by Accretion or 
 Beliction, When a new shore is formed on a non-navigable river by deposits 
 and accretion and attendant erosion from the opposite side, as is usually the 
 case, the new land on the new shore is to be divided among the owners 
 entitled to it according to a rule .of apportionment which gives to each owner 
 a share of the new shore line in proportion to what he held in the old shore 
 
 1 Halsey v. McCormick, 18 N. Y. 150. Sup. Ct.' Rep. no. 
 
 See also Lockwood v. N. Y. & N. H. R. 4 Illinois Cent. R. Co. v. State, 13 Sup. 
 
 Co., 37 Conn. 387, and many cases innate Ct. Rep. no, affirming 33 Fed. Rep. 730. 
 
 4, i Amer. & Eng. Ency. Law 137. 5 Root v. Johnson, 26 Vt. 64 [1853]. 
 
 2 Steers v. Brooklyn, "101 N. Y. 51. 6 Groner v. Foster (Va.), 27 S. E. Rep. 
 
 3 Illinois Cent. R. Co. v. State, 13 493. 
 
3 8 3- OPERATIONS PRELIMINARY TO CONSTRUCTION. 262 
 
 line, and the division of the land is completed by running a line from the 
 bound between the parties on the old shore to the point thus ascertained on 
 the new. 1 
 
 This rule has been adopted in Illinois, where land on the Mississippi River 
 had been divided into lots extending to the river front and had become the 
 property of several lot- owners. Accretions having formed along the river 
 front, disputes arose as to the direction of the lines bounding said accretions : 
 as to whether the lines ran perpendicular to the bank or perpendicular to the 
 middle line, or by some other rule. It was decided that the lines should be 
 run so as to give to each lot-owner the same proportion of the middle line of 
 the river as he owned of the shore-line before the accretion was formed ; that 
 the entire river front as it was before the lots were laid out should be measured 
 and the feet frontage of each lot noted ; that measurement should be made of 
 the middle line of so much of the river as lay opposite the shore-line so 
 measured ; and that then the middle line so measured should be divided into 
 as many equal parts as there were lineal feet in the shore-line, giving to each 
 proprietor as many of these parts as his property measured feet on the shore- 
 line, and that then the division should be completed by drawing lines between 
 the points thus established and the termini of the shore bounds. These lines 
 were held to be the boundaries between the coterminous owners. 2 
 
 The Wisconsin courts have adopted a similar rule to determine the division- 
 line between adjoining holdings, in the shallow waters of a navigable bay, of 
 owners of land bordering thereon, and located on a cove. The rule is ( i ) to 
 measure the whole extent of the shore line, and compute how many rods, 
 yards, or feet each riparian proprietor owns thereon ; ( 2 ) to divide the 
 navigable-water line into as many equal parts as such shore-line contains rods, 
 yards, or feet, and then appropriate to each proprietor as many of such parts 
 of such navigable -water line as he owns rods, yards, or feet of the shore- 
 line ; and (3) to draw a line from the point of division on the shore line 
 to the point thus determined as the point of division on the navigable-water 
 line. 3 
 
 The courts of Virginia adopted a like rule in a case where the line of navi- 
 gability formed two sides of a right-angled triangle, of which the shore-line 
 was the hypotenuse (Fig. d), the line of navigability was subdivided and 
 apportioned in the same proportions that the portions of the shore-line owned 
 by each bore to the whole shore-line, and each owner was held entitled to 
 
 J i Amer. & Eng. Ency. Law 138, and Mich. 498; Northern Pine-land Co. v. 
 
 cases cited; Groner v. Foster (Va.), 27 S. Bigelow, 84 Wis. 157. But see Smith v. 
 
 E. Rep, 493; Watson v. Horoe fN. H.), Johnson (C. C.), 71 Fed. Rep. 647. 
 
 13 Atl. Rep. 789 [1888]; Johnson v. 2 Kehy v. Snyder, 114 111. 313. See 
 
 Jones, 66 U. S. i; Black, 222; O'Donnell Classes v. Chesapeake G. Co. (Md.), 31 
 
 v. Kelsey, 10 N. Y. 412; Batchelder v. Atl. Rep. 808, and Mulry v. Norton, 100 
 
 Keniston, 51 N. H. 496; Delaware, L. & N. Y. 424. 
 
 W. R. Co. v. Hannon, 37 N, J. Law 276; 3 Northern Pine-land Co. v. Bigelow 
 
 Blodgett & D. Lumber Co. v. Peters, 87 (Wis.), 54 N. W. Rep. 496. 
 
263 BOUNDARIES ON WATERS. SHIFTING CHARACTER. 383. 
 
 such portion of the flats as would be bounded by lines drawn from the termini 
 of his portion of the line of navigability to the termini of his portion of the 
 shore-line, and that the entire line of navigability, and not merely one side of 
 
 the triangle, must be so apportioned, 
 irrespective of the fact that one part 
 was less valuable than another. l The 
 apportionment is not the partition of 
 a subject held in common, but of a 
 subject in which the interest of each 
 owner is separate and needs only to 
 be determined to prevent encroach- 
 ment upon the rights of one an- 
 other. 1 The shore -line in this case 
 
 was the low-water mark, as the rights and privileges of the owners extended to 
 low-water mark. 
 
 In New Hampshire, where one of two adjoining owners whose lands are 
 bounded on a cove fills in and makes new land extending into the cove oppo- 
 site the premises of the other owner, the new land made will be divided 
 between the two owners as if it were natural alluvion, as follows : by ascer- 
 taining the length of shore-line each owned formerly, and dividing the new 
 shore-line in the same proportion that each one's part bore to the whole and 
 drawing straight lines from the former to the latter boundaries. 2 
 
 The rule is probably the most satisfactory of any yet adopted by the courts, 
 but it gives some interesting results when applied at different periods of time 
 or in different ways. Any rule is a 
 poor rule which defines property rights 
 that are distinctly at variance, depend- 
 ing upon the time they are determined 
 or upon the method of applying the 
 rule. 
 
 What is meant is best shown by 
 illustration. Suppose that A, B, and C 
 own adjoining estates located as shown 
 in the diagram (Fig. e). Suppose that 
 A and C in 1870, '80, '90, and 1900 
 have their land surveyed, and by the 
 
 rule of apportionment their bounds are located successively at m, n, and o, 
 which makes their boundary the broken lines Imno and I'm'n'o'-, and suppose 
 that B makes his survey in 1900 for the first time since 1870; then by the 
 rule his boundary-lines would be lo and I'o', which inclose the parcel Imnol 
 and over which controversies are certain to arise, and, as the diagram shows, 
 
 T-1900 
 
 [-1890 
 
 Li 880 
 
 1 Groner v. Foster (Va.), 27 S. E. Rep. 
 493- 
 
 2 Watson v. Horoe (N. H.), 13 AtL 
 Rep. 789 [1888]. 
 
383- 
 
 OPERATIONS PRELIMINARY TO CONSTRUCTION 1 . 
 
 264 
 
 FIG. /. 
 
 it might make considerable difference to B. Whether the dividing line should 
 be straight, broken, or curved is the question. 
 
 Another feature of the rule that may lead to mischief is its application by 
 the surveyor, as the result will often depend upon the extent or length of shore- 
 line that is taken when the shore-line is very irregular. This also may be shown 
 best by diagram (Fig. /"). It is 
 apparent that if, in subdividing 
 the land to be reclaimed between 
 the old and new shore, only A 
 .and B are considered, the division 
 would be different from what it 
 would be if the division were be- 
 tween A, B, C, D, E, and F. 
 The question is, between what 
 points shall the surveyor measure 
 either the old shore or the new 
 shore ? Shall he measure from a 
 to b, or from a to c, or from a to some other point, zJ First, suppose he 
 measures from a to b and the shore-lines measure, old 15 chains, new 10 chains; 
 and suppose A's old shore-line is 9, and B's 6 ; then A gets 6 and B gets 4 
 chains of new shore. Secondly, suppose the surveyor measures from a to c and 
 the shore-lines measure, old 45 chains, new 20 chains, and that the respective 
 owners' old shore-lines measure, A's 9, B's 6 -f- 4, C's 6, D's 3, E's 
 8, F's 9 ; then the respective shares of each in the new shore-line, by the 
 rule, would be : A 4 ; B 2f -f- i-J ;. C 2f ; D i-J- ; E 3^ ; F 4 chains. While 
 A and B received 10 chains of new shore in the first instance, for the 
 same shore-line in the second instance they received only 6f chains. The 
 case in the diagram would be an interesting one to which to apply the rule. 
 The lines indicated are drawn according to the rule and the statement of facts 
 in the second case. It is apparent that such a rule is not applicable in 
 all cases. 
 
 Had the court instructed what point was to be selected in the shore-line, 
 and between what points to measure, the rule then would be applicable to most 
 cases. It is submitted that the rule is an especially good one for the equitable 
 adjustment of boundary-lines. It may be applied generally to streams that are 
 crooked and irregular, if the sections taken extend from points where the 
 opposite banks of the stream are parallel for some distance, and where perpen- 
 diculars can be drawn to both banks and at the same time be perpendicular to 
 the medium line, and to most cases in bays and harbors. There should be no 
 difficulty in ascertaining what part of one line is opposite to another line, if 
 they are parallel lines ; but even then the length of shore or coast considered 
 will change the result. Many amusing and interesting problems come up, and 
 one may find considerable entertainment trying to adjust the rule to extraordi- 
 
265 BOUNDARIES ON WATERS. SHIFTING CHARACTER. 383. 
 
 nary cases. In a recent case the Supreme Court of the state of New York held 
 that the land under the waters of a navigable river should be apportioned 
 between adjacent owners in proportion to their frontage upon the main 
 channel of the river in a practically straight line, and as such line would be 
 extended by following the line of indentations considered as a part of the 
 river. 1 
 
 Other rules have been adopted by courts which are even more amusing to 
 read about, but which if undertaken in the field as a surveying operation would 
 cause the average engineer or surveyor to sacrifice his natural respect for the 
 courts that made them, and might also endanger his piety. 
 
 In Massachusetts the courts have held that " Flats situated in a tidal river, 
 at a point in its course above the line of low tide, should be divided among the 
 adjoining properties by drawing lines from the termini of the latter on the banks 
 at the ordinary stage of water to and at right angles with the center line of the 
 river. 2 A Louisiana court held that, where alluvion is formed, each proprietor 
 of original tracts fronting on the river took between the lines of his old front- 
 age on the watercourse, measured directly forward towards the new frontage. 3 
 In Connecticut the division of a strip of seashore has been made by running a line 
 from the point of intersection between the division-line of the upland and the 
 high-water mark perpendicular to the low-water mark. 4 Whether the line shall 
 be run perpendicular to the new bank when the case is decided, or perpendicular 
 to successive newly formed shore-lines that have existed for decades of years 
 previous, is not explained. If the terminal bound be at a corner or projecting 
 promontory and land has been accreted, would the rule apply or hold ? (See 
 Figs, d, e, and/.) 
 
 The trouble is that judges upon the bench do not consider the difficulties 
 attending field operations. To direct that a thing be done is quite different 
 from instructing how it may be or shall be done. It is an easy matter for 
 a judge to sit upon the bench and direct how a boundary-line shall be located 
 in the field by drawing in his imagination a line at right angles from bank 
 to bank ; but if his Honor were required to take a transit, placing it upon one 
 bank and selecting some point upon the same bank for an alignment, to deflect 
 a right angle, he would probably find that the line thus given was 'not perpen- 
 dicular to the other bank ; he would find, in short, that in order to draw a line 
 perpendicular to two lines in the same plane they must be parallel. The 
 operation of locating a line at right angles to an imaginary line in the middle 
 of a sinuous stream might tax even a judge's ingenuity. 
 
 These operations might be a comparatively easy matter after the stream 
 was carefully surveyed and plotted, but the parties frequently do not wish to go 
 
 People v. Woodruff, 51 N. Y. Supp. 3 Newell v. Leathers (La.), 23 So. Rep. 
 
 SIS- 2 43 [1897]- 
 
 2 Tappan v. Boston Water-power Co. 4 Morris v. Beardsley (Conn.), 8 All. 
 
 (Mass.), 31 N. E. Rep. Rep. 139 [1887]. 
 
33;. 
 
 OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 266 
 
 to the expense of a careful survey and the making of a map. In such cases the 
 surveyor is left to locate the dividing line as best his skill and patience will 
 permit. 
 
 It has therefore been held that the rule that accretions can be divided by 
 extending the lines of riparian owners at right angles with the middle thread of 
 so much of the river as lies opposite the shore-line is subject to modification by 
 special circumstances, and an instruction which fails to adapt the rule to the 
 conditions of the case at bar is erroneous. 1 
 
 Fortunately in most cases the property in the bed of a stream or in 
 reclaimed land is of little value or importance, and an accurate survey is not 
 required. Occasionally a case comes up where wharves, quays, docks, or piers 
 are to be built, or where oyster-beds or other shell-fish interests are to be deter- 
 mined, or where mining is conducted, or where popular summer resorts make 
 shore or coast privileges valuable and expensive litigation results. 
 
 387. Connection of Monuments with Inaccessible and Imaginary Bounds. 
 If a boundary on land end at a stream, or a stake or post or tree on the bank 
 of a stream, a question arises as to how the thread of the stream, or, the low-water 
 mark of a pond or body of water, shall be connected with those monuments : 
 whether the boundary-line on land shall be produced until it meets the center 
 of a stream, or water's edge of a body of water, or whether it shall be run in 
 the most direct line, or whether it shall be made perpendicular to the new shore- 
 line or to the line of the old 
 bank ; and whether the line shall 
 be made a straight line, a broken 
 line, or a curved line. 
 
 Courts often declare that the 
 land under water of a river or 
 stream is measured by lines at 
 right angles to the bank from the 
 termini, without regard to the 
 course or direction of the line 
 bounding the remainder of the 
 tract, and without regard to the 
 depth of the water. The middle 
 of such lines drawn from bank to 
 
 bank will be the filum aquce, or the middle line of the stream. 2 It does not 
 matter how recently the bank may, have been formed. 3 In the application of 
 this rule the surveyor must not interpret it technically. When the courts say 
 
 FIG. g. 
 
 1 Elgin v. Beckwith (111.), 10 N. E. Rep. 
 558 [1887]. 
 
 2 Hopkins Acad. v. Dickinson, 9 Cush. 
 544. See 75 Ind. 41. 
 
 3 Miller v. Hepburn, 8 Bush (Ky.) 326; 
 Clark v. Campau, 19 Mich. 329; Knight 
 
 v. Wilder, 2 Cush. 202; Bay City G. Lt. 
 Co. v. Industrial Works, 28 Mich. 182; 
 Stolp v. Hoyt, 44 111. 220; Deerfield v. 
 Arms, 17 Pick. 41; Bonewitz v. Wygant, 
 75 Ind. 41. 
 
267 BOUNDARIES ON WATERS. SHIFTING CHARACTER. 388. 
 
 11 perpendicular to the bank " it is submitted that they have in mind a stream 
 whose banks are parallel, and if they are not parallel, then the lines must be 
 drawn perpendicular to the general trend of the stream. 1 (See Fig. g.) 
 
 Where land has been surveyed by the United States Government, and has 
 been laid out into squares called sections, and described by section or quarter- 
 section lines which run due north and south or east and west, it is usually held 
 to go to the original boundary-lines. Therefore, in a case where two irregu- 
 lar pieces of land were separated by a quarter-section line running north and 
 south, and were bounded southerly by a river running southeast, it was held that 
 the accretions formed by the recession of the river to the south applied to the 
 respective tracts lying due north thereof, but that the division-line between the 
 two tracts east and west continued to be the quarter-section line extended. 2 
 
 The judicial settlement of the divisional line between adjoining riparian pro- 
 prietors, so far as the line runs from high- to low-water mark, is at least a prima 
 facie settlement of the relative rights of the parties beyond low-water mark. 3 
 
 388. Subdivision of Lowlands Reclaimed. The same rules are applied to 
 the apportionment of low and submerged lands as are applied to accretions. 
 The rules are not universal. They vary in different states, and are sometimes 
 varied to meet particular cases to do justice to all parties. 4 The law under- 
 takes to apportion the newly acquired land in proportion to the land which 
 the parties hold as riparian owners, and by virtue of which the law attributes 
 to them the ownership of the acquisition. 
 
 Two things are to be kept in view in making such an equitable distribu- 
 tion : one is that each owner shall have a share in the newly formed land in 
 proportion to the acreage of their several estates; the other is to secure to 
 each an access to the water and a share in the river-line in proportion to his 
 share on the original line of the water. Whether the division should be in 
 proportion to the area, or the length of the water-line, of the owner's posses- 
 sions seems to depend upon whether the newly formed land is more valuable 
 for farming and cultivation or whether its value is chiefly due to its being 
 bounded by a stream, and useful for landing-places, docks, quays, and other 
 accommodations. The rule which shall most nearly, in general, accomplish 
 these two conditions will come nearest to doing justice. 
 
 The real value of such accretion and additions is due to their proximity 
 to the stream and not to their usefulness for farming purposes. The author 
 has yet to find any case in which' accretion to a shore or bank has been dis- 
 tributed in proportion to the areas of the adjoining tracts. If a man owned 
 a narrow strip lying upon the bank of a stream, and another man a long 
 narrow strip perpendicular to the stream whose shore-line was but a fractional 
 
 1 i Amer. & Eng.- Ency. Law 189. prietors of Custom-house Wharf, 27 Atl. 
 
 2 McCaman v. Stagg (Kan. App.), 43 Rep. 93, 85 Me. 175. 
 
 Pac. Rep. 86; Stark v. Miller (Mich.), 71 4 Elgin v. Beckwith (111.), 10 N. E. Rep. 
 
 N. W. Rep. 876. 558 [1887]. 
 
 3 Proprietors of Maine Wharf v. Pro- 
 
389. OPERATIONS PRELIMINARY TO CONSTRUCTION. 268 
 
 part of that of the first riparian owner, but whose area was double, a sub- 
 division which gave the second owner double the length of the new shore that 
 was given to the first would hardly be characterized as just; and it is believed 
 that such a principle has never been applied in subdividing or apportioning 
 lands formed upon waters. 
 
 This injustice is avoided by dividing the new shore-line in the same pro- 
 portion that the length of each owner's original line on the shore or water 
 mark bears to the total length of the old shore-line. 1 This rule may require 
 modifications perhaps in particular circumstances. For instance, in applying 
 the rule to the ancient margin of a river, to ascertain the extent of each 
 proprietor's title on that margin, the general line ought to be taken, and not 
 the actual length of the line on that margin if it happens to be elongated by 
 deep indentations or sharp projections. In such a case it should be reduced, 
 by an equitable and judicious estimate, to the general available line of the 
 land upon the river. 1 
 
 389. Submerged Lands the Subject of Sale, Patent, and Lease. An 
 owner of lands underlying a non-navigable inland lake, with an inlet and 
 outlet stream, may lease his interest in such lake for a term of years, reserving 
 to himself the right of fishing therein during such term. 2 
 
 The right of the riparian proprietor on navigable waters to reclaim and 
 occupy the submerged lands out to the point of navigability may be separated 
 from the shore-land, and transferred to one having no interest in the parent 
 riparian estate. 3 
 
 The title to tide-lands in the territories is in the United States, and they 
 may make grants thereof. 4 
 
 A patent for public lands reciting a purchase of all the unsurveyed sea- 
 marsh in a certain township, containing a certain number of acres and 
 extending back to a certain bay according to the official plat of the survey of 
 said lands in the state land office, does not show a sale/^r averswnem. 5 
 
 In the state of Washington a conveyance of the upland passes littoral rights 
 to the abutting tide- or shore-lands patented to grantor by the United States, 
 and in connection with the possession of the same, from the time it was 
 deeded to them. 6 
 
 390. Effect of Sudden Changes on Boundaries. In cases of changes by 
 accretions to the shore or bank, especial notice is directed to the words 
 " slow, gradual, and by imperceptible degrees " ; for the rule is changed if these 
 additions and changes are sudden, perceptible, or the result of one act of 
 nature, as a flood, a storm, a landslide, an earthquake, or upheaval. In such 
 
 1 Chief Justice Shaw in Deefield v. Co. (Minn.), 53 N. W. Rep. 1066. 
 Arms, 17 Pick. 41. 4 Carroll v. Price (D. C.), 81 Fed. Rep. 
 
 2 Bass Lake Co. v. Hollenbeck, n Ohio 137. 
 
 Cir. Ct. Rep. 508. See Jacob Tome Inst. 5 State v. Buck (La.), 15 So. Rep. 531. 
 
 v. Crothers (Md.), 40 Atl. Rep. 261 [1898]. 6 In re Seattle Tide Lands, 53 Pac. 
 
 3 Bradshaw v. Duluth Imperial Mill Rep. 341. 
 
269 BOUNDARIES ON WATERS. SHIFTING CHARACTER. 
 
 cases the land will belong to the original owner whether it be an individual! 
 proprietor or the state. l 
 
 If the change be sudden, leaving large tracts of submerged lands 
 uncovered, dry, and fit for the ordinary purposes for which land is used, it 
 then belongs to the state, unless it has been previously owned by an individual 
 and he can still make out where and what his land was. The original 
 boundaries that existed before the flood or upheaval will remain the true 
 boundary. 
 
 To hold that a change by artificial means would extend the boundaries 
 of a lot would be as unreasonable as to decide that the removal of landmarks, 
 by which the boundaries of a farm are defined would extend or contract its 
 area. 2 
 
 Land detached from one side of a river by a sudden change in the 
 channel, and left connected with the land on the other side, in such manner 
 as to be capable of identification, is not an accretion. 3 Where a creek in 
 time of freshet, breaks through a narrow neck of land, and afterwards con- 
 tinues to flow through the new channel, separating the neck from the tract to- 
 which it originally belonged, such separation is not caused by the " wear of 
 the creek," within the meaning of a deed which conveyed to plaintiff the 
 tract of which such neck was a part, " less the wear of the creek." 4 The 
 middle of the old channel of the stream still constitutes the boundary of the 
 tract, though there may be no water flowing therein. 5 
 
 A diversion of a non-navigable fresh-water stream by artificial means by a, 
 mill-owner does not change a town boundary consisting of the center of the 
 stream before the diversion occurred. 6 
 
 When a lake five miles long and one hundred rods wide was drained in 
 one year by an artificial ditch and by the cutting into it of a river, a riparian 
 owner did not not acquire title to the bed of the lake under the law of accre- 
 tions. 7 
 
 When a sudden action of water takes a considerable quantity of soil from 
 the. land of one proprietor and deposits it upon the land of another, the title 
 to such soil remains in the original owner if he claims it before it is united 
 with the soil of the other owner. 8 The importance of such changes will be 
 better appreciated when we read in the daily papers of floating islands, of 
 between one and two acres in extent and from four to five feet thk^k, coming 
 
 l i Amer. & Eng. Ency. Law 137; Ty- 38 S. W. Rep. 691; McKay v. Huggan, 
 
 ler on Boundries 81-94; Bouvier v. Strick- 24 Nova Scotia 514. 
 
 lett (Neb.), 59 N. W. Rep. 550; Hahn v. 5 Bouvier v. Stricklett (Neb.). 59 N. W. 
 
 Dawson (Mo.), 36 S. W. Rep. 233; Wai- Rep. 550 [1894]; State of Neb. v. State 
 
 lace v. Driver (Ark.), 33 S. W. Rep. 641- of Iowa, 12 Sup. Ct. Rep. 396. 
 
 2 Judge Denio in Halsey v. McCor. 6 In re Town Boundaries (R. I.), 42 
 
 mick, 13 N. Y. 296. Atl. Rep. 870 [1899]. 
 
 3 Coulthard v. Davis (Iowa), 70 N. W. 7 Noyes v. Collins (Iowa), 61 N. W. 
 
 Rep. 716. Rep. 250. 
 
 *Henning v. Bennett (Sup.), 18 N. Y. 8 I Amer. & Eng. Ency. Law 137. 
 Supp. 645; Sweatman v. Holbrook (Ky.), 
 
39- OPERATIONS PRELIMINARY TO CONSTRUCTION. 2?O 
 
 down rivers, colliding with boats, piers, and bridges, and finally stranding 
 upon submerged flatlands. 1 
 
 It is submitted that the same rule would be followed in case of landslides 
 or earthquakes. The party would doubtless be required to remove his land 
 in a reasonable time or forfeit his ownership. Would he be liable for the 
 damages to his neighbor ? A curious question of duties and boundaries must 
 be presented in such a case where the landslide is of great extent; the deter- 
 mination of which is, it is believed, yet to be decided : whether the proprietor 
 of the upper or the owner of the lower stratum would enjoy the benefits of the 
 surface soil. If the submerged tract was open to mining, no doubt the 
 proprietor would be permitted to continue mining operations. If the pro- 
 prietor of the part that has descended were a farmer, and his house, build- 
 ings, and fields had been transported to realms below, would he be allowed 
 to continue to sow his fields and reap his crops ? 
 
 When a tornado passed over a city, in which business buildings were 
 situated, sweeping away hundreds of large houses, and killing and bankrupt- 
 ing many persons; and a large five-story brick building was blown down, and 
 fell on the adjoining lot and house, causing great damage to the house and 
 goods by reason of the fact that the debris of said brick building remained on 
 said house and goods, and it was alleged that the owner of the building 
 willfully, wrongfully, carelessly, and without right refused and neglected to 
 remove it for four days after notice to do so, it was held that there was no 
 cause of action, since it did not appear that defendant owner was able to 
 remove the debris sooner by the use of reasonable diligence after receiving the 
 notice. 2 
 
 Reported from Havana, 111., March 2 Ingallsz/. Hart Hardware Co. (Ky.), 
 17, 1896. 20 S. W. Rep. 387. 
 
CHAPTER XXII. 
 
 BOUNDARIES ON WATERS. LAND BOUNDED BY, ALONG, 
 UPON, OR ON A STREAM OR THE BED, BANK, BEACH, OR 
 SHORE. 
 
 401. Monuments Described as on the Bank or Shore Intention Ex- 
 pressed, Natural monuments, such as trees, rocks, etc., mentioned in a deed 
 as occupying the bank of a stream are not presumed to be the real boundary 
 corners, or to stand on the precise water-line, at its high- or low-water mark. 
 They are used rather to fix the termini of the line described as following the 
 sinuosities of the stream, and to give the direction of lines running -to the 
 stream. The law must determine whether the boundary-line shall be above 
 or below tide-water, and whether the one-half of the river with its islands 
 shall be included. At common law, if the stream at the place in question is 
 not subject to the ebb and flow of tides, and the grant is so framed as to 
 touch the water of the stream, and the parties do not expressly except the 
 stream, one-half of the bed of the stream is included by construction of the 
 law. 1 
 
 Some states make a distinction in the construction of the law for grants 
 on non-navigable streams from those on navigable non-tidal streams. The 
 states of Alabama, Arkansas, California, Indiana, Iowa, Kansas, Minnesota, 
 Missouri, Nevada, Oregon, Pennsylvania, Tennessee, Virginia, and in a few 
 instances Kentucky, Michigan, New York, and North Carolina have held 
 navigable streams and their beds to be public property, and that therefore 
 descriptions touching the water did not by implication convey to the center 
 of such bodies of water (streams). On the other hand, Connecticut, Dela- 
 ware, Georgia, Illinois, Kentucky, Maine, Maryland, Massachusetts, Michigan, 
 Mississippi, New Hampshire, New Jersey, New York, North Carolina, Ohio, 
 Rhode Island, South Carolina, Vermont, Wisconsin, England, and Ireland 
 give title to the beds of navigable non-tidal streams as well as of non-navi- 
 
 l L\icev. Carley, 24 Wend. 451 [1840]; 28 Mich. 181; Morris v. Hill, i Mich. 
 
 Rice v. Munroe, 36 Me. 309; Cold Sp. 202; Gavit v. Chambers, 3 Ohio 496; 
 
 I. W. v. Tolland. 4 Cush. 492; Warren Benner's Lessee v. Platter, 6 Ohio 505; 
 
 v. Thomaston, 75 Me. 329 [1883]; Day Walkerer v. Bd. P. W., 16 Ohio 540; 
 
 *v. Pittsburg, Y. & C. R. Co., 22 Reptr. Kaukauna W.-p. Co. v. Green Bay Co., 
 
 533 [1886]; Gas-It. Co. v. Indus. Works, 12 Sup. Ct. Rep. 173. 
 
 271 
 
402. OPERATIONS PRELIMINARY TO CONSTRUCTION. 2/2 
 
 gable streams to private persons who are riparian owners. 1 There are some 
 exceptions, as the Mohawk and Hudson rivers in New York, which are 
 affected by the doctrine of the civil law which prevailed in the Netherlands, 
 from which government they were derived. 2 The rule does not maintain gen- 
 erally in grants upon large lakes and ponds; on the contrary, the boundary- 
 line is generally the low-water mark. 3 
 
 What follows may therefore be taken as generally true of streams that are 
 not navigable, and are not tidal streams, and it may be true for navigable 
 streams in the list of states given and which recognize private property in the 
 bed of streams that are in fact navigable. 
 
 402. Practical, Common-sense Rule Applied. The law as stated is 
 believed to be the correct rule of construction either from the standpoint of 
 common sense or from the practice and customs of surveyors. Much can 
 be said in favor of this rule, and little against it, except the prestige estab- 
 lished by earlier decisions, and the matter of opinion in each case as to what 
 the grantor's real intentions were. 
 
 To begin with, " a line run to the stream " does not restrict the grant to 
 the bank or shore of the stream. The stream is the monument, and, like a 
 tree, a stake, a stone, or any other monument, controls the distance, and is 
 to be considered as located equally on the land granted and the land of the 
 adjoining owner. The center of the monument should be the boundary, and 
 the grant should extend to that point. 4 
 
 This is believed to be in sympathy with the feelings and practices of sur- 
 veyors generally. Without adhering to such a construction water-gores 
 would be multiplied by thousands along our inland streams small and great, 
 the intention of parties would be continually violated, and litigation become 
 interminable. 5 
 
 403. Water Regarded as an Element and a Natural Appurtenant to 
 Land. Prima facie the proprietor of each bank of a stream is the proprietor 
 of half the land covered by the stream. The bank is the principal object, 
 and when the law once fixes the proprietorship of that, the soil of the river 
 should follow as an incident, or rather as a part of the subject-matter, to the 
 middle of the stream. The law does not stop to criticise the precise words 
 by which a man is made owner. Is he the shore-owner ? If that be so, he 
 touches the water, and the construction of the law does not require express 
 words for the grant of every part of one's estate. Houses, fences, mines, the 
 elements of light, air, and water, all pass by the word land, " usquce ad coelum, 
 et ad infernos." By the same principle it passes the adjoining fresh-water 
 stream to the median line of its margins. The passing of one element may 
 just as well be questioned as another not only in the eye of the law, but in 
 
 1 16 Amer. & Eng. Ency. Law 253-256. 60 N. H. 201. 
 
 2 Smith v. Rochester, 92 N. Y. 463. 5 Cowen, J., in Luce v. Carley, 24 
 
 3 16 Amer. & Eng. Ency. Law 250-256. Wend. 451. And see Gray's Real Prop- 
 justice Stanley in Sleeper v. Laconia, erty Cases 325. 
 
2/3 BOUNDARIES ON WATERS. BED, BANK, OR SHORE. 404. 
 
 common sense and reason. What would be more absurd for the law than to 
 give a man the shore or side of a fresh-water river, and yet, by saving the bed 
 to a grantor, make the grantee of the bank a trespasser every time he should 
 slake his thirst or wash his hands in the stream ? If all the beds of our rivers 
 are treated as being in the grantor, and it is conceded that he may have the 
 right to reserve gores and parts of streams, innumerable pieces will be left, 
 which may have as many owners, or be without any owner. Their practical 
 value would be little or nothing, and access would be difficult without tres- 
 passing upon riparian owners' lands and provoking endless litigation. A 
 door would be open to incalculable mischief. Intruders would fall into end- 
 less broils among themselves and involve the 'adjacent owners in controversies. 
 Stones, soil, gravel, and water rights would be subjects for individual scram- 
 ble, necessarily leading to violence and outrage. 
 
 The law that a grant bounded by a stream goes to its middle line has long 
 been understood. When the grant extends to the shore, but excepts so 
 important a part as the stream, the description should state the exception in 
 terms. 1 Otherwise the allowance of such an exception would operate as a frauc 1 
 gross in its character and dangerous to a very large portion of a community. 
 Anxiety to connect water with the main premises runs through the whole his- 
 tory of law. If it cannot give the land under the water as parcel of the grant, 
 it will save the water as an appurtenance. If a man owns land on both sides 
 of a stream, and also owns the bed of the stream, he may dispose of any part 
 and of so much of it as he pleases. That is a right incident to property. But 
 if he wishes to retain the exclusive property of the stream in himself, the law 
 requires him to make it so plain as to afford no reasonable doubt of his 
 intention. 
 
 404. Effect of Field Operations on Descriptions of Boundaries. In sur- 
 veying it is impracticable to determine or meander the center-line of a stream. 
 Field operations are confined to the bank or shore, and it is the universal 
 practice of surveyors to describe property by the lines run. Courts do not 
 always consider these things in interpreting grants and conveyances, but have 
 attributed the conception and exception of the description to the grantor. It 
 may be that this is necessary on principle in law; but to ascertain the inten- 
 tion of a grantor, it is proper for a court to put itself in the grantor's position 
 and to consider every circumstance surrounding the parties at the time of the 
 conveyance. If then it be the common custom to incorporate the surveyor's 
 notes and description in the grant, it should be no injustice to consider the 
 practice of surveyors in making his survey, and his description made there- 
 from in interpreting a deed of conveyance. 
 
 Few surveyors have been informed of the rules of law with regard to 
 boundaries. Their knowledge has been confined to the mathematical and 
 field operations of surveying, and their duties have been to interpret descrip- 
 
 1 People v. Bd. of Supervisors, 125 111. 9 [1888]. 
 
405- OPERATIONS PRELIMINARY TO CONSTRUCTION. 2/4 
 
 tions prepared by some older and perhaps less-informed surveyor, or to simply 
 run out lines indicated by the grantor, who was equally ignorant of the laws 
 of boundaries. If a surveyor be directed to survey a farm bounded by a 
 river, he -will ordinarily include in that survey the surface land only, and his 
 survey will end at the edge of the stream. To do otherwise would incur 
 considerable expense, time, and discomfort. What then would be more 
 natural than for a surveyor chaining or running along a bank or on the shore 
 than to describe the land surveyed by words and phrases that aptly describe 
 the operations he performed ? This, it is submitted, is an almost universal 
 practice. 
 
 405. Construction of Deed is Largely a Question of Intention. The 
 boundaries of land upon waters are often modified or even changed from what 
 they would be according to law by the expressed intention of the grantor. 
 To determine this intention certain words have acquired definite meanings, 
 and will generally be interpreted in the light of those meanings. Other cir- 
 cumstances may surround the case, other parts of the description may show a 
 different intention, but in the absence of such modifications in the description, 
 or of conflicting testimony,* or conditions that are repugnant to such a con- 
 clusion, it is pretty certain that a like interpretation will be given to the same 
 words by other courts. 
 
 406. Land Bounded At, On, Along, By, or With a Stream or Body of 
 Water. In the absence of ^an expressed reservation limiting a riparian owner 
 to the margin of the stream, he usually own* to the center of the stream. 1 If 
 the calls in the conveyance are for corners on the bank of a stream and there 
 is an intermediate line extending from one such corner to the other, the 
 stream is the boundary of all riparian rights. 2 If a tract of land be bounded 
 by a stream and its meanders and the Imes be described as going to a stake 
 on the bank, yet the owner of the tract follows the stream and is entitled to 
 any accretions to its banks. 3 
 
 A conveyance of platted lots which are situated upon the bank of a navi- 
 gable stream, no part of the bed of the stream being platted, includes all the 
 riparian rights of the grantor in front of said lots to the center of the stream^ 
 although such stream is not mentioned in the conveyance. To exclude such 
 rights they should be reserved or excepted in the deed. 4 
 
 Where the government grants lands on the banks of a fresh -water stream, 
 without reservation, in states where the common law prevails, all unsurveyed 
 
 1 Ingraham v. Wilkinson (Mass.), 4 2 Whitehurst v. McDonald, 52 Fed. 
 
 Pick. 268; Bardwell v. Ames (Mass-.), 22 Rep. 633. 
 
 Pick. 333; Pratt v. Lamson (Mass.), 2 3 Denny v. Cotton (Tex.), 22 S. W. 
 
 Allen 284: Illinois, etc., Canal v. Harris, Rep. 122. 
 
 ii 111. 554; Rockwell v. Baldwin, 53 111. 4 Head v. Chesbrough (Com. PI.), 4 
 
 19; Houck v. Yates, 82 111. 179; Luce v, Ohio N. P. 73. 
 Carley, 24 Wend. (N. Y.) 451 [1840]. 
 
 * See Sees. 611-640, infra. 
 
2/5 BOUNDARIES ON WATERS. BED, BANK, OR SHORE. 46. 
 
 lands between the middle line of the stream and the bank pass by the grant, 
 and the riparian owner cannot be divested by a subsequent survey and grant 
 of the islands. 1 
 
 Calls for two corners, one at high-water mark on the bank of a stream and 
 the other at the stream, were held to make the stream the boundary-line when 
 no contrary intention was shown. 2 
 
 A deed describing the land conveyed as beginning at the sea, on A's line, 
 thence south on the said A's line to the highway, thence west on the high- 
 way ten rods to the stake, thence north to the shore, parallel with said A's 
 line, thence east to the first bounds mentioned, and no intention was 
 expressed to retain the adjoining shore as distinct from the upland, was held 
 to convey the flats, or shore, with the upland. 3 
 
 A boundary running to a monument standing on the bank, and from 
 thence running by the river or along the river, will not restrict the grant to the 
 bank of the stream, for the monuments in such cases are only referred to as 
 giving the directions of the lines to the river, and not for the purpose of 
 restricting the boundary on the river. A deed describing the lines as to a tree 
 on the bank of a river, thence up said river, locates the line at the thread of the 
 stream, and that location is not changed by other words in the same descrip- 
 tion giving the length of lines and quantity of land conveyed. 4 A survey 
 running to a point on a river and thence down said river, and bounding thereon 
 to another point, includes a sand-bar on the same side of the river, between 
 the two points. 5 
 
 A description extending the boundary-line of land from a given point, by 
 certain courses and distances, to the mouth of a certain creek, and thence 
 ascending said creek by certain courses and distances, was held to make the 
 thread of the creek the boundary-line, regardless of the last-named courses 
 and distances, even though the creek was a tidal stream, the grantor having 
 the title to its bed. 6 
 
 A conveyance of lands on a navigable stream by boundary-line coincident 
 with the line of navigation conveys the grantor's title to the central thread of 
 the stream. 7 
 
 A grant of land in New York described by reference to a monument stand- 
 ing on the bank of the river, and by a course given as running from it down the 
 river as it winds and turns to another monument, conveys to the middle of 
 
 1 Grand Rapids & I. R. Co. v. Butler, W. Rep. 849; People v. Bd. Supervisors, 
 15 Sup. Ct. Rep. 991; Fuller v. Shedd 125 111. 9 [1888]. 
 
 (111.), 4 N. E. Rep. 286. But see Stein- 5 Asher Lumber Co. v. Lunsford (Ky.), 
 
 buchel v. Lane (Kans.), 51 Pac. Rep. 30 S. W. Rep. 968. 
 
 886 [1898]. 6 Freeman v. Bellegarde (Cal.), 41 Pac. 
 
 2 Whitehurst v. McDonald (C. C. A.), Rep. 289; Hanlon v. Hobson (Col.), 51 
 52 Fed. Rep. 633, and cases cited. Pac. Rep. 433 [1897]. 
 
 3 Snowz/. Mt. Desert I. R. E. Co., 84 7 Lake Shore & M. S. R. Co. v. Platt 
 
 Me. 14. (Ohio Sup.), 41 N. E. Rep. 243. But set 
 
 4 Kent v. Taylor (N. H.), 13 AtL.Rep. City of Oakland v. Oakland Co., 50 Pac. 
 
 419 [1888]; Runion v. Alley (Ky.), 39 S. Rep. 277. 
 
407- OPERATIONS PRELIMINARY TO CONSTRUCTION. 2?6 
 
 the stream unless the river be expressly excluded from the grant by the terms 
 of the deed. If the description carries the grant to the water of the stream, 
 and the stream is not expressly excepted, one-half of the bed of the stream 
 will be included by construction of the law. 1 
 
 So a grant extends to the center of the river by the description: " That 
 fraction lying on the south side of the A. River, and on each side of ... 
 S. Avenue, and extending from the avenue to the river, east and west." 2 
 
 An instruction which treats as a non-navigable river a boundary indicated 
 in a survey as " the bed of a dry creek " is not materially defective. 3 The 
 same rule in regard to boundaries on streams applies to both natural and arti- 
 ficial streams. 4 
 
 In New York state riparian owners of lands, adjoining fresh-water navigable 
 streams and small lakes within the state where the tide does not ebb and flow, 
 own the stream except that the public has an easement in such waters and for 
 the purpose of travel the same as on a public highway. This easement, as it 
 pertains to the sovereignty of the state, cannot be alienated, and it gives to the 
 state the right to use, regulate, and control the waters for the purpose of 
 navigation. It does not give to the state any right to convert the waters or to 
 authorize their conversion to any otherwise than those for which the easement 
 was created, viz., for the purposes of navigation. 5 
 
 A creek is a monument which may be referred to as a boundary without 
 vitiating the description for uncertainty. After such a description the addi- 
 tion of a more particular description by giving the courses and distances of the 
 boundary-lines will not be regarded as a reformation of the deed, and 
 evidence of extrinsic facts will be admitted to explain the defective descrip- 
 tion. 6 
 
 407, To the Bank or Shore, thence up the Stream. When land is 
 bounded upon a stream and the line is described as running to a creek and up 
 the same to a certain point, or up the same, or up the creek with its meanders, it 
 implies that the line is to follow the creek according to its windings and 
 turnings. If, however, the language of the description be, beginning on the 
 bank of the creek, thence up the creek with its meanders, it is held that the 
 margin of the creek is the boundary, and not the middle of the stream. 7 
 
 In several states, if the land is bounded by the bank of the river, or is 
 described by a line, as running along the bank of the river, or along the margin 
 of the river, it does not convey to the middle of the stream. 8 If the word 
 
 1 Luce v. Carley, 24 Wend. 451 [1840]. 6 Travellers' Ins. Co. v. Yount, 98 Ind. 
 
 2 Hanlon v. Hobson (Col.), 51 Pac. 454 [1884]. 
 
 Rep. 433, 42 Law Rep. Ann. 502 [1897], 7 Starr v. Child, 20 Wend. 149; Stone v. 
 
 3 Barnhart v. Ehrhart (Oreg ), 54 Pac. Augusta, 46 Me. 127 [1858]. But see 
 Rep. 195 [1898]. Buck v. Squires, 22 Vt. 484, and Sleeper 
 
 * Agawam Canal Co. v. Edwards, 36 v. Laconia, 60 N. H. 201. 
 Conn. 476. 8 People v. Bd. of Supervisors, 125 111. 
 
 5 Smith v. Rochester, 92 N. Y. 463 9 [1888]. 
 [1883]. 
 
277 BOUNDARIES ON WATERS. BED, BANK, OR SHORE. 407. 
 
 shore is employed instead of bank, it would be the same (N. Y. rule), and 
 convey to the water's edge at low-water mark. 1 A grant to the seashore, 
 thence by the seashore, does not carry title beyond high-water mark. 2 A 
 line running to the bank of a creek or stream will give title to the low- water 
 mark of the stream at the time, and also to any accretions made to the 
 stream. 3 
 
 A deed conveying land bordering on a stream, and defining its boundaries 
 as commencing at the intersection of a certain ditch with the shore-line and 
 extending by courses and distances named to the shore of the same stream, 
 thence along said shore as it winds and turns, to the commencement, made 
 the shore-line the boundary, and did not convey the land lying between the 
 low-water mark and the thread of the stream. 4 
 
 A description which read, " commencing at a stake and stones on the west 
 bank of a river, " and after running the other sides of the field by certain courses 
 and distances to another stake and stones on the same bank, continued " thence 
 upon the bank at high-water mark to place of beginning, " was held to define the 
 boundary and not to include flats between high- and low-water marks. 5 Land 
 " bounded on the south by C-lake, and meandering along the water's edge east- 
 ward to a stake at the lake's low-water mark," conveyed merely to the water's 
 edge, and the grantee acquired no title to any of the portion covered by 
 water. 6 
 
 When one of the boundaries is substantially coincident with the shore of 
 a lake at low-water mark, the intent to convey to such mark will be presumed, 
 in the absence of language indicating a contrary intent, though the lake is not 
 named as a boundary. 7 
 
 A boundary extending to and on the pond, referring to a natural pond 
 artificially raised at certain seasons of the year by a dam, was held to extend 
 to low- water mark of the pond in its natural state; and the fact that the deeds 
 were made during the season when the pond was temporarily raised by a dam 
 cannot affect the extent of their operation. 8 
 
 If there are other parts of the description that show an intention to convey 
 more than the meaning of the words convey, such parts will hold, as when a 
 deed described the boundary of the land conveyed as beginning at a fixed 
 point, and running a certain course, a distance of "about" 865 feet, to a point 
 on the shore of Long Island Sound, thence running along the shore and sound 
 
 1 Starr v. Child, 20 Wend. 149. 5 Dunlap v. Steison, 4 Mason 349; Car- 
 
 2 Brown v. Heard, 85 Me. 294; Litch- penter v. Board of Commissioners 
 field v. Scituate, 136 Mass. 39, 48 [1883]. (Minn.), 58 N. W. Rep. 295. 
 
 See also Provins v. Lovi (Okl.), 50 Pac. 6 Brophy z/. Richeson (Ind. Sup.), 36 
 
 Rep. 81 [1891]. N. E. Rep. 424; Axline v. Shaw (Fla.), 
 
 8 Halsey v. McCormick, 13 N. Y. 296; 17 So. Rep. 411. 
 
 Cruikshanks v. Wilmer (Ky.), 18 S. W. 7 Slauson v. Goodrich Transp. Co. 
 
 Rep. 1018. (Wis.), 69 N. W. Rep. 990. 
 
 * Freeman z/. Bellegarde (Cal.), 41 Pac. 8 Paine v. Woods, 108 Mass. 160. But 
 
 Rep. 289; Freeman v. Leighton (Me.), see Smith v. Youmans (Wis.), 70 N. W. 
 
 38 Atl. Rep. 542 [1897]. Rep. 1115. 
 
40/. OPERATIONS PRELIMINARY TO CONSTRUCTION. 2?& 
 
 to a certain point, and thence, by a given course, a distance of "about" 
 1288 feet, to the place of beginning, containing a certain number of acres 
 " more or less." To make the distances and acreage agree with the deed, 
 the courses would have to be run to low-water mark and along low-water 
 mark, and it was held that the deed conveyed the land to low-water mark and 
 included the shore, notwithstanding the rule that by the shore as a monument 
 means the line of high water when the boundary is the sea. l 
 
 Where a deed describes the land conveyed as beginning at a certain point 
 and " running thence east, to the top of the bank of the Genesee River, thence 
 southeasterly, along the top of the bank, to a point that a line parallel with the 
 north line will contain ten acres, . . . containing ten acres and no more," 
 the course " along the top of the bank " follows the meanders of the bank. 2 
 
 In the Circuit Court of California, under a Mexican grant which described 
 the land as bounded by the shore of the bay, a description by courses and dis- 
 tances includes the land to ordinary high-tide line, though "shore" under 
 the Mexican law extended only to the extraordinary high-tide line, and the 
 Mexican grant described the land as bounded by the shore, as words used in 
 a common-law court decree must be given the common-law interpretation. a 
 In another case it was held that the expression to the west on the sea, in a 
 Mexican grant, bounds the land granted by high-water mark, and does not 
 extend it to low-water mark; 4 it includes only the lands above high-water 
 mark, and not the tide-lands. 5 The fact that the civil or Roman law has 
 always been the recognized law of Mexico, and that under that law the doc- 
 trine of state ownership of the beach between high- and low-water mark does 
 not obtain, does not make a colonization grant of upland bounded by the sea 
 include the beach or shore. 
 
 In California the title to tide- lands between high- and low-water mark is- 
 in the state, except in cases where grants may have been made by the Mexican 
 government, before the territory was acquired by the United States, expressly 
 covering tide-lands; in which event the United States, under the treaty of 
 Guadalupe Hidalgo, would be bound to protect all private rights to such 
 lands as against the state. 6 Similarly in conveyances whose boundaries are 
 described as running to the shore, and thence by the shore, or where land is 
 bounded by the bank of a stream, it is held that the shore or bank is the 
 boundary, and that the water is excluded. 7 
 
 1 Oakes . De Lancey (N. Y. App.), 30 6 Coburn v. San Mateo Co. (C. C.), 75 
 N. E-. Rep. 974, affirming 15 N. Y. Supp. Fed. Rep. 520. 
 
 561, and 24 N. Y. Supp. 539. 7 Starr v. Child, 20 Wend. 149, and 
 
 2 In re Rochester (Sup.), 40 N. Y. Supp. cases cited; Gouveneur v. National Ice 
 1007. Co. (N. Y. App.), 31 N. E. Rep. 865; Ax- 
 
 3 Valantine 'v. Sloss (Cal.), 37 Pac. Rep. line v. Shaw (Fla.) 17 So. Rep. 411; In 
 326-329. re Rochester (Sup.), 40 N. Y. Supp. 
 
 4 Coburn v. San Mateo Co. (C. C. N. D. 1007; People v. Board '(HI.), 17 N. K, 
 
 Cal. 1 ), 75 Fed. Rep. 520. Rep. 147 [1888]; Morrison v. First Nai_. 
 
 5 More v. Massini, 37 Cal. 432; U. S. v. Bk. (Me.), 33 Atl. Rep. 782. 
 Pacheco, 2 Wall. 587. 
 
279 BOUNDARIES ON WATERS. BED, BANK, OR SHORE. 408. 
 
 In some states it is held that the boundary-line of a non-navigable stream 
 is the middle, whatever language is employed in the description. This seems 
 to be the rule in Connecticut, New Hampshire, and Pennsylvania. In New- 
 Hampshire it was held that a description of a boundary as going to the river, 
 thence northeasterly on the river shore to a street, passed title to the middle 
 of the river. 1 The phraseology of the description must be clear and specific 
 in order to reserve the property in the stream, or to limit the boundary-line 
 to the bank or water-mark. There seems to be a decided tendency towards 
 this rule to hold the boundary of a non-tidal stream to be the middle unless 
 the language is so explicit as to show beyond a doubt that it was the grantor's 
 express intention to reserve the stream from the conveyance. 2 
 
 408, Expressions that do Not Carry Boundary to Water's Edge. Prob- 
 ably not one in ten surveyors even considers or weighs the import or technical 
 meaning of the words he employs in his notes and descriptions, and especially 
 of such small and seemingly insignificant particles. Probably the words up a 
 stream or along a shore or bank would convey to their minds the same meaning* 
 ordinarily as *, by, or along a stream, but the courts have distinguished them, 
 and are likely to again,' and it is well for engineers and surveyors to know 
 these distinctions. 
 
 The words running from thence up a brook have been held not to imply 
 necessarily on or by the brook. "Up a brook due west until it strikes the line 
 of the common land" was therefore construed to mean in a direct line due 
 west, and not following the course of the brook; the court adding that if the 
 intention had been to make the brook the boundary, it would naturally have 
 been stated that the line was run on or by the brook. 3 A call thence north 
 down the stream to a known point described was held to require the line to 
 be run straight to that point. 4 
 
 A call " from a fixed monument on the edge of a creek up the same by a 
 single course to another fixed monument on said creek " has been construed 
 to follow a straight line from monument to monument, and not to follow the 
 windings of the creek. A different construction might have been adopted had 
 it been to follow "the several courses thereof" or "the general course 
 being," or had similar language been employed. 5 
 
 The word meander has been held to mean to follow a winding or flexuous 
 course but when land was described as " beginning at a stake in the Bay of 
 Shallows, . . . thence with the meander of the river, N. 6o CT W. 20 Chs. to 
 Shark Point," it was held that the boundary-line was the line described. 6 
 
 This interpretation is subject to modification, however, where the descrip- 
 
 1 Sleeper v. Laconia, 60 N. H. 201. 3 Bowman v. Farmer, 8 N. H. 402. 
 
 2 And set Hughes v. Providence R. Co., 4 Rains v. Rains (Ky.), 20 S. W. Rep. 
 2 R. I. 508, 512; andOlney v. Fenner, 2 1099. 
 
 R. I. 211, 214; People v. Bd. of Supervi- 5 Wharton v. Brick (N. J.), 8 All. Rep. 
 
 sors, 125 111. 9 [1888]; Piper v. Con- 529 [1887]. 
 
 nolly, 108 111. 646 [1884], and cases cited; 6 Turner v. Parker (Ore.), 12 Pac. Rep. 
 
 Sleeper v. Laconia, 60 N. H. 201. 495 [1887]. 
 
409- 
 
 OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 280 
 
 tion clearly indicates an intention to convey to the water-line. Thus where 
 the moiety of a tract was described in a deed as commencing at a certain 
 stake on the south, and running due north to the stake on the line of said 
 tract, thence west along the said line to the corner, south to the southwest 
 corner, thence east to the place of beginning, and it appeared that the said 
 southwest corner was at the meander-line of the tide-water, it was held that 
 it must be presumed that the beginning line of the boundary was upon said 
 meander-line, and that the course from the southwest corner to that point 
 was intended to be along such meander-line, and not on a direct line between 
 those two points. It was held that in taking distances from one point to 
 another on navigable water the measurement shall be its meanders, and not 
 in a direct line. 1 
 
 409. Middle Line of Streams the Boundary. Streams are designated as 
 boundaries the same as any other natural features. If a boundary be described 
 as a stump or a row of trees, or an embankment, or a ditch, or a wall, with- 
 out any words of restriction, the legal presumption is that the middle of the 
 row of trees, embankment, or wall is intended. There is no reason in logic 
 or practice why the same should not hold for a stream, If a stream bounds 
 a piece of property, one cannot say generally it is the one side more than the 
 other, and the most reasonable conclusion is that it is the middle. This is 
 the law generally on all unnavigable streams; the boundary-line is the middle 
 line of the stream iheflum aquce, as it is called in law. 
 
 This line is independent of the varying depth of the stream. It is the 
 middle line of the water's surface measured in a line perpendicular to the 
 general trend or direction of the 
 stream, the line that is half-way be- 
 tween the two opposite water's edges. 2 
 This, it is submitted, is determined 
 independent of narrow inlets, coves, 
 and bays that do not form a part of 
 the stream proper. It is evident that 
 as the stream may be deep near one 
 bank and then shallow on the opposite 
 side, the stage or height of the water 
 at different seasons will materially 
 change this middle line (see Figs. ^ 
 and/). This indefiniteness of loca- 
 tion is somewhat diminished by mak- 
 
 *Rayburn v. Winant (Ore.), 18 Pac. 
 Rep. 588 [1888]. But see other cases in 
 which the boundary line between two 
 points was presumed to be straight. 
 Burlock v. Taylor, 16 Pick. 335 [1835]; 
 Riggs v. Riggs, 135 Mass. 240 [1883]; 
 Wharton v. Brick (N. J.), 8 All. Rep. 
 
 FIG. A. 
 
 FIG. 
 
 529 [1887]. In re cases where measure- 
 ments have been made from the eaves, 
 see Tyler on Boundaries 205, bottom; and 
 to centre of street on boundaries, see 
 Tvler on Boundaries 206. 
 
 2 See Johnston v. Jones, I Black 209- 
 222 [1861]; and see 23 Vt. 319. 
 
28 1 BOUNDARIES ON WATERS. BED, BANK, OR SHORE. 4-IO. 
 
 ing it the middle of the low-water marks on both sides; but at best it must be 
 indeterminate. It may vary from year to year by accretion and erosion, for 
 it will always be located by taking the middle of a line drawn at right angles 
 to its general direction from bank to bank, no matter how recently the bank 
 may have been formed. l * 
 
 Where the navigable water-line and the shore-line are elongated by deep 
 indentations and sharp projections, the meander-line, as located by the 
 government survey, and the actual navigable water-line, should be discarded, 
 and the general available shore-line and the general trend of the navigable 
 water-line adopted. 2 Where ledges or spits or tongues of land project out 
 beyond the meander-line of a bay, they are included as part of the fractions 
 of sections shown on the government survey, and conveyed by government 
 patent. 3 
 
 Whether the stream is the boundary between the United States and a 
 foreign country or between separate states or private landowners, that 
 boundary follows any changes in the stream which are due to a gradual accre- 
 tion or degradation of its banks. 4 
 
 The expressions " middle of the Mississippi River" and " the center of 
 the main channel of that river," as used respectively in the enabling acts 
 under which the states of Illinois and Wisconsin were admitted into the 
 Union, and " middle of the main channel of the Mississippi River," as used 
 in the enabling acts of Missouri and Iowa, all being descriptive of the 
 boundaries of those states, were held synonymous terms, and to mean the 
 middle of the main navigable channel, or channel most used, and not the 
 middle of the great bed of the stream, as defined by the banks of the river. 5 
 
 410. Meander-lines do Not Always Determine the Boundaries. Many 
 cases hold that a meander-line of a stream is run by government surveyors for 
 the purpose of determining approximately the windings of the stream or shore, 
 and to determine the quantity of land in the survey, not for the purpose of 
 making it a boundary-line; 6 the latter being defined in all cases by the waters 
 themselves. The meander-line merely determines the sinuosities of the stream 
 or body of water, and is not a boundary. 7 In a government survey it does 
 not limit the boundaries of a Mexican grant. 8 
 
 Where an irregular tract of land abuts upon a stream, and a meander-line 
 
 *i Amer. & Eng. Ency. Law 189. * Fuller v. Dauphin, 124 111. 542 [1888]; 
 
 2 Northern Pine-land Co. v. Bigelow Railroad Co. v. Schurmeir, 7 Wallace 
 (Wis.), 54 N. W. Rep. 496. 272 [1868] ; Hardin v. Jordan, u Sup. Ct. 
 
 3 Ex parte Davidson (C. C.), 57 Fed. Rep. 808, 838; s. c., 140 U. S. 371; Co- 
 Rep. 883. burn v. San Mateo Co. (C. C.), 75 Fed. 
 
 * Nebraska v. Iowa, 12 Sup. Ct. Rep. Rep. 520. 
 
 396; Denny v. Cotton (Tex.), 22 S. W. 7 Schlosser v. Crookshank (Iowa), 65 
 
 Rep. 122. N. W. Rep. 344. 
 
 5 Iowa -v. Illinois, 13 Sup. Ct. Rep. 239. 8 Coburn v. San Mateo County (C. C- 
 
 See Oakland v. Oakland W.-f. Co. (Cal.), N. D. Cal.), 75 Fed. Rep. 520. 
 50 Pac. Rep. 277. 
 
 * See Sees. 401-420, supra. 
 
4I- OPERATIONS PRELIMINARY TO CONSTRUCTION. 2%2 
 
 is run ostensibly along this shore-line for the purpose of fixing the area of 
 such tract, the real boundary of the tract is the shore-line, and not the 
 meander-line. 1 The boundary-line is the actual water-line, unless the con- 
 tr^ry clearly appears from the deed itself, * or unless the notice and other pro- 
 ceedings show that such was the purpose of the survey. 3 In the absence of 
 evidence of a reservation in the patent or an assertion of title by the govern- 
 ment to land lying between the meander-line of a lake, as established by its 
 surveyors, and the shore-line of the lake, evidence aliunde is inadmissible to 
 show that the meander-line was intended as the boundary of the adjoining 
 patent. 4 
 
 The fact that a stream was not meandered by United States surveyors 
 raises a presumption that it was not navigable. 5 
 
 A call " thence meandering down the bank of the river " makes the river 
 one of the boundaries of the land. 6 When, in a government survey, a 
 meander-line was run along the east bank of a slough but was not marked on 
 the goverrunent map, and the slough was marked on the map as the west 
 boundary of the land, it was held that the meander-line was not the boundary, 
 and that the description included an island lying between the lines described 
 and the middle of the slough, such island never having been surveyed or 
 platted by the general government. 7 
 
 Where, under a patent from the United States, the state acquires title to 
 a section of land partly within and partly without a meander-line, and the 
 dry land without the meander-line is divided into lots, and there is nothing 
 to indicate that it was intended to bound the lots by such meander-line, a 
 patent from the state of one of the lots, describing it by its number and 
 section, conveys the whole thereof to the opposite section-line. 8 
 
 But where lands are conveyed by reference to the official plat of a survey, 
 which shows a meander-line along marshy lands extending to Lake Erie, the 
 meander-line was held to be the boundary-line; 9 and where a state patent 
 of swamp-lands describes the land conveyed by subdivisions, according to 
 the United States survey, and continues the description by giving the number 
 of the swamp-land survey, and saying that it is more particularly described 
 in the field-notes of the survey, and then recites the field-notes, the land con- 
 
 iHeald v. Yumisko (N. D.), 75 N. W. 917 [1888]; Home v. Smith, 15 Sup. Ct. 
 
 Rep. 806 [1898]. Rep. 988; Bland v. Smith (Tex.), 43 S. 
 
 2 Sizor v. Logansport, 50 N. E. Rep. W. Rep. 49 [1897]. See People v. War- 
 377. ner (Mich.), 74 N. W. Rep. 705 [1898]. 
 
 3 Tolleston Club v. Clough (Ind. Sup.), But see Barnhart v. Ehrhart (Oreg.), 54 
 43 N. E. Rep. 647. Pac. Rep. 195 [1898]. 
 
 4 Schlosser v. Crookshank (Iowa), 65 8 Tolleston Club v. State (Ind. Sup.), 
 
 N. W. Rep. 344. 38 N. E. Rep. 214; Stoner-z/. Rice (Ind.), 
 
 5 Clute v. Briggs, 22 Wis. 607 [1868]. 22 N. E. Rep. 968. 
 
 6 Heilbron v. Kings River, etc., Co. 9 Niles v. Cedar Pt. Club, 85 Fed. Rep. 
 
 (Cal.)i J 7 Pac - Re P- 933 [1888]. And see 45. But see Home v. Smith, 15 Sup. Ct. 
 
 Steinbuchel v. Lane (Kans.), 51 Pac. Rep. 988, and Bland v. Smith (Tex.), 43 
 
 Rep. 886 [1898]. S. W. Rep. 49. 
 
 7 Fuller v. Dauphin (111.). 16 N. E. Rep, 
 
283 BOUNDARIES ON WATERS. BED, BANK, OR SHORE. 411. 
 
 veyed is limited to that actually surveyed in the field and described in the 
 field-notes, even if the survey did not include all the land in the subdivisions. 1 
 
 When, however, the meander-line was not run along a bayou some 
 distance from the river, and the land between the bayou and the river, though 
 in existence at the time that the survey was made, was not surveyed, it was 
 held that such land did not pass by a conveyance from the government of the 
 surveyed tract. 2 If the description in the deed contains no mention or intima- 
 tion that the land borders upon a stream, and it is not shown in the plat from 
 which the deed was made, then the grantees may not introduce evidence 
 relating to the title and ownership of said land to show that they are riparian 
 owners. 3 
 
 411. Should Area Given Include Bank and Bed of Stream? In giving 
 the area of a field or estate the question arises, shall the land covered by 
 water and that of the banks or shores be included ? If the bed and banks be 
 a part of the estate described and clearly within the bounds surveyed, doubt- 
 less the ordinary surveyor would include them, otherwise not. Without the 
 use of stadia measurements or resorting to triangulation the determination of 
 the middle line of a fair-sized stream is a task, and unless authorized to 
 determine it and make a plat thereof a surveyor will not go to such trouble 
 and expense. Indeed, in ordinary cases -the interests at stake are hardly 
 worth the time, trouble, and expense, and it may be doubted if a client would 
 wish to pay for the labor involved in determining the exact area. 
 
 It has been held that under a conveyance of land one side of which was 
 bounded by a public navigable river, the quantity determined as conveyed 
 should include all that land between the top of the bank and the ordinary 
 stage of the water. 4 
 
 In an action, by the grantee in a deed running " to a point" in Long 
 Island Sound, to recover for a deficiency in the acreage of the land conveyed, 
 on the ground that the deed could only convey to the high-water line of the 
 shore, it will not be presumed, in the face of the description in the deed 
 definitely calling for the low-water line as the boundary, that the grantor had 
 no title to the shore, since the common-law rule that the title to the shore is 
 in the state does not exclude the possibility of title in the grantor derived 
 from the state or by prescription. 5 
 
 A deed of land described as " all that tract, being part of lot 4 on which 
 the said B. now lives, beginning at a point on a river, thence up the river, ' ' 
 
 1 Mahon z/. Richardson, 50 Cal. 333 2 Glen v. Jeffrey (la.), 39 N. W. Rep. 
 
 [1875]; The specific description will hold. 160 [1888]. 
 
 Prentice v. Duluth, S. & F. Co. (C. C. 3 Trustees v. Schroll (111.), 12 N. E, 
 
 A.), 58 Fed. Rep. 437; Pond v. Minne- Rep. 243 [1887]. 
 
 sota I. Co. (C. C.), 58 Fed. Rep. 448; 4 Hess v. Cheney (Ala.), 3 So. Rep. 791 
 
 Barnhart v. Ehrhart (Oreg.), 54 Pac. [1888]; semble, State v. Eason (N. C.), 
 
 Rep. 195; Niles v. Cedar Pt. Club (U. S. 19 S. E. Rep. 88. 
 
 C. C.), 85 Fed. Rep. 45; Harrison v. 5 Oakes v. De Lancey (N. Y. App.), 30 
 
 Stipes (Neb.), 51 N. W. Rep. 976 [1892]. N. E. Rep. 974. 
 
412. OPERATIONS PRELIMINARY TO CONSTRUCTION. 284 
 
 etc. , by various courses, ' ' thence north a certain distance to Fish Lake, to 
 the north line of the said lake, thence along the same, etc., to the place of 
 beginning," containing 100 acres and being the number of acres intended 
 to be conveyed, carries the title to the part of the lot under the lake, though 
 this amounted to 40 acres and the land exclusive of this amounts to 103 
 acres. x 
 
 Whether or not the area between the center of a street and the exterior 
 line is to be included as comprising a part of the area mentioned in the deed 
 must be one of intention of the parties. It has been held that where land was 
 described as "commencing on the southeast corner of lot 9 and running 
 thence northeasterly along the Indiana boundary-line, which boundary-line 
 was a highway, . . . intending hereby to convey one acre of land without 
 reference to metes and bounds as above described," the southwest side of 
 the tract conveyed was the center-line of the highway, even though that only 
 gave to the grantee one acre including the strip subject to the easement of 
 the highway. * 
 
 412, The Question of Boundaries is Determined by the Laws of the 
 State. Whether the title of a proprietor of land on the margin of a navigable 
 river extends to high-water mark, low-water mark, or the middle of the 
 stream is not a Federal question, though he claim under a grant from the 
 United States, but is to be determined by the laws of the state in which the 
 land is situated. 3 
 
 Where the law of the state, as an incident to the ownership of riparian 
 lands, attaches thereto the legal title to submerged lands, to the thread of the 
 stream, as in Michigan, such title will accrue to one who receives from the 
 United States a patent to the riparian lands. 4 
 
 413, Law of Boundaries Affected by Early Settlements. The laws of 
 New York in regard to boundaries on waters are affected by the doctrine of 
 the civil law, which prevailed in the Netherlands, from whose government 
 grants for the early-settled parts of the state were derived. This is true 
 especially of the Hudson and Mohawk rivers, upon which the rights of 
 riparian owners are distinguishable from those of owners upon other navigable 
 waters of the state. 5 Louisiana has also laws which are modifications of the 
 civil law existing under French rule; from which government tenures are held, 
 and the laws of Pennsylvania are peculiar in their application to land, and 
 the rights inherent thereto. 
 
 The general rule prevents any disturbance of riparian rights by public 
 authority, past or present, without making compensation. Yet in New York 
 state it is the rule that when the interests of the whole people require an 
 
 1 Wilcoxz/, Bread, 92 Hun 9. 4 Scranton v. Wheeler (C. C. A.), 57 
 
 2 Henderson v. Hatterman (111. Supp.), Fed. Rep. 803. 
 
 34 N. E. Rep. 1041. 5 Smith v. Rochester, 92 N. Y. 463 
 
 3 Webb v. City of Demopolis (Ala.), 13 [1883]; People v. Canal Apprs.. 33 N. Y. 
 So. Rep. 289. 461, distinguished. 
 
285 BOUNDARIES ON WATERS. BED, BANK, OR SHORE. 413. 
 
 improvement of the water-front of a navigable stream for the benefit of com- 
 merce, the state may make such improvements upon the tide-water front 
 without compensating the riparian proprietor, except by giving him a pre- 
 emptive right to purchase in case of a sale. l 
 
 Although, as against individuals, riparian owners have special rights to the 
 tideway between high- and low-water mark which are recognized and pro- 
 tected by law as against the general public, they have no rights that do not 
 yield to commercial necessities, except the right of pre-emption when con- 
 ferred by statute, and the right to wharfage when protected by a grant and 
 covenant on the part of the state; and any grant of land on tide-water^ is 
 subject to an implied reservation of the right to improve the water-front to 
 aid navigation, for the benefit of the general public, without compensation to 
 the riparian owner. l 
 
 A grant to freeholders, by the governor of the colony of New York, of 
 land bounded on one side by a river was held not to carry accretions to the 
 land, where the tideway of the river was granted by royal charter to the city of 
 New York. Where the tideway of a river was granted to New York City by 
 royal charter, and the state afterwards increased the grant to an exterior 
 street, under water, to be laid out by the city, an owner of upland property 
 bounded by the river has no riparian rights for which compensation must be 
 made when the city fills in the tideway in front of the property for the pur- 
 pose of creating the street. 2 
 
 The Hudson River Railroad Company, under its charter authorizing the 
 construction of its road along the east shore of the Hudson River, cannot be 
 regarded as an adjacent owner within Rev. St. (7th ed.), p. 573, 67, for- 
 bidding grants of lands under water " to any person other than the proprietor 
 of the adjacent land," and therefore cannot maintain ejectment against a 
 person claiming under a subsequent state grant of such lands, the use of 
 which does not interfere with the operation of the company's railway. 3 
 
 The construction by the owner of land bounded by navigable tide-water of 
 a marine railway for the purpose of hauling up boats is not an adverse posses- 
 sion of the land below high-water mark, within Code Civil Proc., 368, of 
 New York. 4 
 
 The words ' ' together with all water privileges, rights, and immunities of 
 the said party of the first part therewith connected," taken in connection with 
 the fact that there were no water privileges, etc., connected with the tract 
 save those resulting from the river being the boundary on one side, render it 
 absolutely certain that it was not intended that the purchaser's right should 
 terminate at the water's edge. 3 
 
 J Sage v. City of New York, 154 N. Y. 423; New York Cent. & H. R. R. Co. v- 
 
 61, 41 N. Y. Supp. 939 [1896-7.] Aldridge (Sup.), 16 N. Y. Supp. 674. 
 
 2 Sage v. City of New York (Sup.), 41 * De Lancy v. Piepgras (N. Y. App.), 
 N. Y. Supp. 938; Towle v. Remsen, 70 33 N. E. Rep. 822. 
 
 N. Y. 303 [1877]. 5 Piper v. Connolly, 108 111. 646 [1884], 
 
 3 Rumsey v. Railroad Co., 114 N. Y. 
 
OPERATIONS PRELIMINARY TO CONSTRUCTION. 286 
 
 414. Boundaries on Navigable Waters.* The law of boundaries upon 
 non-tidal navigable waters and streams varies in different states, the courts of 
 some of which hold that the riparian owners own only to the water-mark (high 
 or low), and others hold that they own the bank and bed to the middle line 
 of the stream, subject, however, to an easement of the public to certain 
 reasonable uses of the waters of the stream. Those states in which the courts 
 hold that riparian owners are entitled to the ownership of the banks and bed 
 of a navigable stream to the middle thereof are the following: Connecticut, 
 Delaware, Georgia, Illinois, Kentucky, Maine, Maryland, Massachusetts, 
 Michigan, Mississippi, New Hampshire, New York, North Carolina, Ohio, 
 Rhode Island, South Carolina, Vermont, Wisconsin, and the foreign countries 
 England and Ireland. 1 
 
 In Alabama the title of an owner of land bordering on a navigable stream 
 extends to low-water mark, ending only where the right to the use of the 
 water as a navigable stream begins. 2 In Arkansas title extends to high-water 
 mark, and not to the middle of the stream. 3 In Florida the land below 
 high-water mark does not necessarily pass to a grantee of the upland as 
 appurtenant to the latter. 4 In Missouri title carries only to the water's edge. 5 
 In Montana title extends to ordinary low-water mark. A riparian owner 
 may, in ejectment, recover land lying between high- and low-water marks 
 from one in possession not claiming rights as a navigator or fisherman. 6 
 
 In New York state a riparian owner has the right to construct wharves on 
 his water-front for his own use and benefit, subject to public regulation, and 
 such right cannot be taken for public use except by condemnation proceed- 
 ings as prescribed by law. 7 
 
 The state of Washington, (Const, art. 17, 2), disclaims all title to tide- 
 lands patented by the United States. It cannot, therefore, assert title to land 
 situated below the line of ordinary high tide, but within the meander-line, 
 which was patented to plaintiff by the United States; said land being within 
 the calls of the patent, and described in the official plat, and the survey and 
 field-notes accompanying the same, by courses and distances. 8 
 
 Where the United States has made grants, without reservation or restric- 
 tion, of public lands bounded on streams or other waters, the question 
 whether the lands forming the beds of the waters belong to the state or to 
 the owners of the riparian lands is to be determined entirely by the law of 
 
 1 16 Amer. & Eng. Ency. Law 253-257; 411. 
 
 Day v. Pittsburgh, etc., R. Co. (Ohio), 5 Perkins v. Adams (Mo. Sup.), 33 S. 
 
 22 The Reptr. 533 [1886]. W. Rep. 778. 
 
 2 Webb v. City of Demopolis (Ala.), 13 6 Gibson v. Kelly (Mont.), 39 Pac. Rep. 
 So. Rep. 289. 517. 
 
 'Railway Co. v. Ramsey, 53 Ark. 314; 7 Buffalo v. Delaware, L. & W. R. Co. 
 
 Wallace v. Driver (Ark.), 33 S. W. (Sup.), 39 N. Y. Supp. 4. 
 
 Rep. 641. 8 Cogswell v. Forrest (Wash.), 43 Pac. 
 
 *Axline v. Shaw (Fla.), 17 So. Rep. Rep. 1098. 
 
 * See Sees., 231-250 supra. 
 
28/ BOUNDARIES ON WATERS. BED, BANK, OR SHORE. 414. 
 
 the state in which the lands lie. When it has disposed of the lands bordering 
 on a meandered lake by patent, without reservation or restriction, it has 
 nothing left to convey, and any patent thereafter issued for land forming the 
 bed or former bed of the lake is void and inoperative. 1 
 
 A patent of the United States conveying land lying upon the borders of a 
 navigable river within the boundaries of a state conveys no title to land lying 
 under the stream, since the United States has no title thereto. 2 
 
 lamprey v. Metcalf (Minn.), 53 N. 2 Scranton v. Wheeler (C. C. A.), 57 
 
 W. Rep. 1139. Fed. Rep. 803. 
 
CHAPTER XXIII. 
 
 BOUNDARIES ON LAKES AND PONDS. 
 
 421. Boundaries on Natural Lakes and Ponds. The subject of the 
 boundaries of natural lakes and ponds is a difficult one, and is in confusion 
 at the present time. The various state courts are not yet agreed upon a 
 doctrine on which to base their decisions, and the adoption of different 
 grounds for deciding the cases which have so far come before the courts makes 
 it difficult to lay down any general rule which will apply in all states and in 
 all cases. 
 
 " The common law of England, which presumes the boundary-line of two 
 estates separated by a tideless navigable river to coincide with the middle line 
 of the stream, does not apply to the great fresh-water lakes of this country. 
 Our large fresh -water lakes or inland seas are wholly unprovided for by the 
 laws of England. In these there is neither flow of tide nor thread of the 
 stream; and local laws have assigned the shores, down to the ordinary low- 
 water mark, to the riparian owners, and the beds of the lakes, with the islands 
 therein, to the public." * Upon this the courts are fully agreed; and the rule 
 can be laid down that where land is bounded upon an inland fresh-water lake 
 so large as to be called a " great lake " or " inland sea " the proprietors of 
 such lands hold to ordinary low-water mark, and grants bounded by such 
 waters extend to that line and no further. 2 
 
 It has been held that unless otherwise expressed in the grants, the land 
 lying upon Lake Champlain, which covers nearly 1000 square miles and is 
 navigable for 150 miles, extends to the low-water mark, subject to the servi- 
 tude of the public for the purpose of navigation up to high-water mark. 3 
 
 Failure of a deed, by one owning to low-water mark on a lake, to mention 
 the lake as a boundary will not overcome the presumption of the intent to 
 convey to low-water mark, where the boundary given in the deed is sub- 
 
 1 Canal Commissioners v. People, 5 24 111. 521; Bigelow v. Nickerson (C. C. 
 
 Wend. (N. Y.) 423, 447; Hathorn v. A.), 70 Fed. Rep. 113. 
 
 Stinson, I Fairf. 238. s Commissioners v. Kempshall, 26 
 
 2 Gould on Waters, 203; Smith v. Wend. (N. Y.) 404; Champlain, etc., Ry. 
 
 Rochester, 92 N. Y. 463; Sloane v. Bie- Co. v. Valentine, 19 Barb. (N. Y.) 491; 
 
 miller, 34 Ohio State 492; Lincoln v. 111. Cent. R. Co. v. State, 13 Sup. Ct. 
 
 Davis, 53 Mich. 375; Seaman v. Smith, Rep. no. 
 
 288 
 
289 BOUNDARIES ON' LAKES AND PONDS. 421. 
 
 stantially coincident with the low-water mark, unless a contrary intention is 
 manifest from the language of the deed. l 
 
 In New Hampshire it is held that where a grant runs to and is bounded 
 of a lake or large body of standing fresh water, the grant extends only to 
 the water's edge. 2 Long Pond at Concord, whose bed contains 160 acres, 
 being navigable, under American common law, was held the property of the 
 state and available for public use. 3 In Massachusetts a grant bounded by a 
 great pond or lake which is public property extends to low-water mark. 4 A 
 similar doctrine prevails in Vermont, and the rule applies to a grant bounded 
 by creeks which are substantially arms and inlets of the lake; 5 and in Maine 
 but whether or not a lot of land bounded on a lake is limited to the 
 margin of the lake depends on the manner in which the lake was formed. 6 
 The Supreme Court of Illinois has held that riparian owners on Lake Michigan 
 own to the line where the water usually stands when unaffected by any dis- 
 turbing cause. 7 
 
 In Wisconsin a small stream that spread into a body of water 35 to 65 
 rods wide and 3 miles long, and then reappeared as a stream, its surface being 
 covered with water in the spring and fall, and marshy and partially dry in 
 summer, and which was filled with rushes and wild rice, and was navigable 
 only by small skiffs, but without any defined channel or current during the 
 greater part of the year, and which had been meandered by the government 
 surveyors, was held not a watercourse, but a meandered lake, and hence the 
 riparian proprietors owned only to the water-line. 8 
 
 The common law as to the dominion, sovereignty, and ownership of lands 
 under tide-waters on the borders of the sea applies equally to the lands 
 beneath the navigable waters of the Great Lakes, and in this country such 
 sovereignty and ownership belongs to the states respectively within whose 
 borders such lands are situated, subject always to the right of Congress to- 
 control the navigation so far as may be necessary for the regulation of foreign 
 and interstate commerce. 9 
 
 The confusion arises when questions come before the courts dealing with 
 boundaries on lakes which cannot fairly be called "great lakes/' In such- 
 cases the courts adopt different grounds for deciding the cases before them. 
 Thus the courts of some states decide these questions by applying to lakes; 
 and ponds the same rule that they apply to streams, and base their decisions, 
 upon the navigability or non-navigability of the body of water. In some 
 
 1 Slauson v. Goodrich Transp. Co. Wood v. Kelley, 30 Me. 47. 
 (Wis.), 69 N. W. Rep. 990. 7 Seaman v. Smith, 24 111. 521. 
 
 2 State v. Gilmanton, 9 N. H. 461, 463. 8 Ne-Pee-Nauk Club v. Wilson (Wis.), 
 
 3 Concord Mfg. Co. v. Robertson (N. 71 N. W. Rep. 661; 12 Amer. & Eng. 
 H.), 25 Atl. Rep. 718; State v. Company, Ency. Law 650, 651. 
 
 49 N. H. 240, 250. 9 111. Central R. Co v. State, 13 Sup. Ct. 
 
 4 Paine v. Woods, 108 Mass. 160. Rep. no; People v. Kirk (111.). 45 N. E. 
 
 5 Fletcher v. Phelps, 28 Vt. 257; Jane- Rep. 830; People v. Silberwood (Mich.), 
 way v. Barrett, 38 Vt. 316. 67 N. W. Rep. 1087. 
 
 6 Dillingham v. Smith, 30 Me. 370; 
 
421. OPERATIONS PRELIMINARY TO CONSTRUCTION. 2 90 
 
 states the decisions have been based upon ancient ordinances and statutes in 
 force in those states, and still other courts have decided the cases before them 
 by citing such decisions, although in their own states there were no such 
 ordinances, as formed the bases of the decisions cited. 
 
 Where states in deciding cases brought before them have not considered 
 the question from the point of view of the navigability or non-navigability of 
 the body of water, the weight of -the decisions in this country seems clearly to 
 be that where the monument called for in the grant is a natural lake or pond 
 the boundary-line is the ordinary low-water line of such lake or pond. 1 
 
 In Michigan the settled law is declared to be that the boundaries of 
 riparian owners extend to the middle line of inland waters; 2 and in New 
 Jersey in a case of a lake three miles by one mile. 3 
 
 The strong tendency of modern cases seems to be to base the decision on 
 the navigability or non-navigability of the lake or pond, and to establish the 
 rule that if the body of water is navigable, land bounded on such a lake or 
 pond will extend only to ordinary low-water mark, but if it be not navigable, 
 then it will extend to the middle thread of the lake or pond. 4 
 
 Where lands have been surveyed and laid out originally by the United 
 States Government, riparian owners of 0?z-navigable lakes and ponds whose 
 shores were meandered by the government surveyors do not as a general rule 
 take to the center of the lake or pond, but only to low-water. mark. 5 The 
 contrary rule is held in some states, which makes the boundary the center of 
 the lake or pond. 6 If the lake is navigable in fact, its waters and bed belong 
 to the state in its sovereign capacity, and the patentee takes the fee to the 
 low-water line only. 7 The meander-line is not regarded as the boundary of 
 lot-owners, but to have been run for topography, the courts giving riparian 
 rights to the abutting landowners. 8 The fact that the number of acres recited 
 
 1 Bradley v. Rice, 13 Me. 198; Water- ney v. Young (Vt.), 32 Atl. Rep. 492, or- 
 man v. Johnson, 13 Pick. 261; Payne v. dinary low-water mark. 
 
 Woods, 108 Mass. 160; State v. Oilman- 6 Lamprey v. Metcalf (Minn.), 53 N. W. 
 
 ton, 9 N. H. 461; Fletcher v. Phelps, 28 Rep. 1139; Olson v. Huntamer (S. D.), 
 
 Vt. 257; McBurney v. Young (Vt.), 32 61 N. W. Rep. 4791 Forsythe v. Small, 7 
 
 Atl. Rep. 492; Diedrichz/. N. W. Ry. Co., Biss. (U. S.) 201, 205 [1876]. And see 
 
 42 Wis. 248. See also Noyes v. Board of Kirwan v. Murphy (U. S. C. C. Minn.), 
 
 Sup'rs, 73 N. W. Rep. 48o[i897]; Fullers. 85 Fed. Rep. 275, and 12 Amer. & Eng. 
 
 Shedd,i6i 111. 462; Trustees of Schools v. Ency. Law 649. 
 
 Schroll, 120 111. 509; Olson v. Huntamer 7 Lamprey v. State, 52 Minn. 181; Lam- 
 
 (S. D.), 61 N. W. Rep. 479; Noyes v. Col- prey v. Metcalf (Minn.), 53 N. W. Rep. 
 
 lins (Iowa), 61 N. W. Rep. 250. 1139; Nijes v. Cedar Pt. Club (U. S. C. 
 
 2 Weber v. Pere Marquette Co., 62 C.), 85 Fed. Rep. 45; Wayzata v. Gt. N. 
 Mich. 626. Ry. Co. (Minn.), 52 N. W. Rep. 913, one 
 
 3 Cobb v. Davenport, 32 N. J. Law 369. side of a street; Schlosser v. Crookshank 
 
 4 4 Am. & Eng. Ency. Law 833, 834, and (Iowa), 65 N. W. Rep. 344, to high-water 
 cases cited; Lembeck v. Nye, 47 Ohio St. line. 
 
 336. 8 Kntidson v. Omanson (Utah), 37 Pac. 
 
 5 Fuller v. Shed (111.), 44 N. E. Rep. Rep. 250; Schlosser v. Crookshank 
 286; Edwards v. Ogle, 76 Ind. 302; Noyes (Iowa), 65 N. W. Rep. 344; Kirwan v. 
 v. Collins (Iowa), 61 N. W. Rep. 479; Murphy (U. S. C. C. Minn.), 83 Fed. Rep. 
 Noyes v. Board (Iowa), 73 N. W. Rep. 275; Lally v. Rossman (Wis.), 51 N. W. 
 480'. But see Schlosser v. Crookshank Rep. 1132; Yates v. Milwaukee (U.S.), 
 (Iowa), 65 N. W. Rep. 344, and McBur- 10 Wall. 497. 
 
2QI BOUNDARIES ON LAKES AND PONDS. 421. 
 
 in the government patent corresponds with the quantity within the meander- 
 line will not prevent the patentee from claiming the land between the 
 meander-line and the shore-line. 1 
 
 When land has been surveyed by the government and subdivided without 
 meandering the shores of a lake or pond contained therein, and without res- 
 ervation of the lake or pond, and the section-lines are run straight across 
 from shore to shore, the purchaser of sections or subdivisions acquires title to 
 that portion of the bed of the lake included in the subdivision. 2 
 
 The United States Supreme Court states the rule to v be that by the common 
 law, under a grant of lands bounded on lakes or ponds which are not tide- 
 waters and are not navigable, the grantee takes to the center of the lake or 
 pond ratably with other riparian proprietors, if there be such; 3 and a late case 
 in New York says that the presumption in that state is that lands under the 
 waters of small, inland, non-navigable ponds and lakes belong to the pro- 
 prietors of the adjoining lands, and the same rule applies in the legal con- 
 struction of grants of land bounded on fresh-water streams. 4 
 
 This case substantially overrules an earlier case 5 which decided that a 
 boundary of land upon a fresh-water pond did not go below the low-water 
 mark. The New York courts have not been consistent in deciding cases 
 before them by taking as a basis of their decisions the navigability or non- 
 navigability of the lake or pond. Thus in one case it was shown that the 
 lake was navigable in fact and had been navigated for over thirty years, yet it 
 was held that the riparian owners held title to the center of the bed of the 
 adjoining navigable body of water. 6 
 
 It would seem from a review of the cases on this subject in this -country 
 that no very definite rule has yet been established for their determination, and 
 that each -case must be decided according to the facts of that particular case. 
 
 It should be noted that where an estate is described and bounded on a 
 natural pond it will not be limited by the first water reached, as a creek, 
 inlet, or cove, but will extend to the body of the pond proper. 7 
 
 A lot of land was conveyed and described as bounding on one end upon a 
 pond. It appeared that there was a narrow cove or arm of the pond extend- 
 ing from the pond across the lot, and that if the land conveyed was limited 
 by this cove the lines would not correspond with those of the adjoining lots, 
 and there would remain a portion of the land not conveyed between the cove 
 
 ^chlosser v. Crookshank (Iowa), 65 4 Gouverneur v. National Ice Co., 15 
 
 N. W. Rep. 344. N. Y. 355, reversing IT N. Y. Supp. 87, 
 
 2 Stoner v. Rice (Ind.), 22 N. E. Rep. Crooked Lake Nav. Co. v. Kenha Nav. 
 
 968; Kean v. Roby (Ind.), 42 N. E. Rep. Co., 4 N. Y. St. Rep. 380, affirmed in 115 
 
 ion. See Edwards v. Ogle, 76 Ind. 302; N. Y. 667. 
 
 Ross v. Faust, 54 Ind. 471; Ridgeway v. 5 Wheeler v. Spinola, 54 N. Y. 377. 
 
 Ludlow, 58 Ind. 248; Yates v. Milwaukee 6 Smith v. Rochester, 92 N. Y. 463. 
 
 (U. S.), 10 Wall. 497. 7 Nelson v. Butterfield, 21 Me. 220. 
 
 3 Hardin v. Jordan, 140 U. S. 371. And see Mauser v. Blake, 62 Me. 38. 
 
422. OPERATIONS PRELIMINARY TO CONSTRUCTION. 2$2 
 
 and the pond. It was therefore held that the land extended across the cove 
 to the main body of water called the pond. 1 
 
 An act authorizing the board of commissioners to extend its driveway over 
 and upon the bed of Lake Michigan, and to sell and convey to the adjoining 
 shore-owners the submerged lands which might be reclaimed in extending 
 such driveway, was a valid exercise of legislative discretion, since it did not 
 interfere with the rights of navigation and fishing. 2 
 
 Riparian rights proper are held to rest upon title to the bank of the body 
 of water, and not upon title to the soil under the water, as they are the same 
 whether the riparian owner owns the soil under the water or not. Accretion 
 and reliction are held not to be riparian rights. 3 
 
 A conveyance of land by metes and bounds by the owner of land extend- 
 ing to the low-water mark on a lake does not entitle the grantee to take to 
 such low-water mark if there remains a strip of land between that conveyed 
 and the waters of the lake at low-water mark. 4 
 
 The title to an island situated within 100 rods from the opposite upland, 
 there being no channel between the island and mainland at low water, does 
 not extend, unless by special grant, to a flat circling the island, except on the 
 side towards the sea. Nor is this rule varied by parole proof that there had 
 been anciently a channel at low water between the mainland and the island, 
 which had been filled up by the slow process of accretion. 5 
 
 422. Boundaries on Artificial Lakes and Ponds. Land bounding upon 
 a lake or pond which has been made artificially by backing up the waters of a 
 stream extends prima facie to the middle line of the original stream. 6 A grant 
 bounded on, or by, an artificial pond, and not expressly or by clear implication 
 by the margin of it, extends to the middle thread of the original stream as if 
 no pond existed. This was held even where the pond had 'been in existence 
 two hundred years. 7 Whether or not a deed to land described as " bounded 
 on " an artificial lake conveyed an interest in the lake may be shown by an 
 antecedent contract with the grantor to buy the land under the lake; such 
 agreement being held proof of the intention of the parties to convey only to 
 the margin of the lake. 8 
 
 Where a natural lake or pond has been enlarged artificially and its surface 
 is thereby raised, the boundary-line of land described as bounded by such 
 lake or pond remains the same as if the land were bounded upon the pond in 
 its natural state, unless the pond so created has been so long kept up as to 
 have become permanent and to have acquired another well-defined boundary. 9 
 
 1 Nelson v. Butterfield, 21 Me. 220. 63 [1887]. 
 
 And see Mauser v. Blake, 62 Me. 38. 6 Mauser v. Blake, 62 Me 38; Phinney 
 
 2 People v. Kirk (111. Sup.), 45 N. E. v. Watts ? 9 Gray (Mass.) 269. 
 
 Rep. 830. 7 Mill River Mfg. Co. v. Smith, 34 
 
 3 Diedrich v. N. W. R. Co., 42 Wis. 298. Conn. 462. 
 
 *Slauson v. Goodrich Transp. Co. 8 Fowler v. Veerland (N. J.), 14 All. 
 
 (Wis.), 69 N. W. Rep. 990. Rep. 116 [1888]. 
 
 5 Babson v. Taintor (Me.), 10 Atl. Rep. 9 Payne v. Woods, 108 Mass. 160. 
 
293 BOUNDARIES ON LAKES AND PONDS. 423. 
 
 Most of the cases upon this point have been decided in states which hold that 
 land bounded by a natural pond or lake extends only to the low-water mark, 1 
 and so the rule has been stated that if a natural lake or pond is raised or 
 lowered artificially the boundary-line will remain at the original low-water 
 mark. 2 The question does not seem to have arisen in any state which holds 
 the bed of non-navigable lakes and ponds to belong to the adjoining owners. 
 In those states the consistent rule would be that land bounded on an arti- 
 ficially raised pond will extend to the low-water mark of the pond in its 
 natural state if navigable, and to the middle thread of the pond if, in its 
 natural state, it be non-navigable. A conveyance of " all my estate to the 
 north of the mill-pond, . . . including the mill-stream and mill and mill- 
 pond, with all its privileges and appurtenances, and to shut the mill-dam at 
 the south side of said mill-pond," did not convey any land beyond high-water 
 mark. 3 
 
 Whether or not a deed to land described as " bounded on " an artificial 
 lake conveyed an interest in the lake may be shown by an antecedent contract 
 with the grantor to buy the land under the lake; such agreement being held 
 proof of the intention of the parties to convey only to the margin of the lake. 4 
 
 423. Shore, Beach, Bank, or Water's Edge of Lakes and Ponds. The 
 rules laid down in the preceding sections apply when the call for boundary is 
 a lake or pond, or where the land is said to be bounded by or on or running 
 along the lake or pond. Different rules prevail when shore, bank, or wafer's 
 edge and similar words are used, for these words are generally held to show a 
 presumption that the parties have waived the ordinary rule and that they 
 meant the land to run to the ordinary low-water mark and no further. As 
 said in an Indiana case, 5 " The conveyance to a riparian proprietor may be 
 drawn in terms so restrictive as to limit his title to the bank as a boundary 
 when, but for such restrictions, it would extend to the thread of the 
 stream." * 
 
 Deeds in a chain of title plainly indicating that the boundary of the land 
 is the bank of a pond pass no title to the land under the water, either to- the 
 grantees in such deeds or to their grantees and assigns. A boundary of land 
 on the edge of the pond is not a boundary by a stream which may change by 
 gradual washings and deposits; but the boundary is limited by the definite 
 boundary without regard to the contingent subsidings of the water constitut- 
 ing the pond and thereby leaving the land dry. 6 The term margin of the 
 lake is a term of unequivocal import, meaning the line where the earth and 
 water meet around the lake. By the use of these words the parties have 
 
 1 Payne v. Woods, supra. 4 Fowler v. Veerland (N. J.), 14 Atl. 
 
 2 4 Amer. & Eng. Ency. of Law 837. Rep. 116 [1888]. 
 
 3 Roberts v. Baumgarten (N. Y.), 18 N. 5 Ross v. Faust, 54 Ind. 471. 
 
 E. Rep. 96 [1889]. 6 Holden v. Chandler, 61 Vt. 291. 
 
 * See Sees. 405-7, supra. 
 
424- OPERATIONS PRELIMINARY TO CONSTRUCTION. 294 
 
 declared their intention to make, not the middle, but another part of the lake 
 the edge of the water the boundary-line. No other construction can be 
 given to the words the parties themselves have chosen without doing violence 
 to their meaning; and an intention contrary to the one expressed by the very 
 words selected by the parties themselves cannot be presumed. 1 
 
 The grantee of a deed that conveyed " the western portion" of certain 
 lands " bounded on the south by C. lake, and meandering along the water's 
 edge eastward to a stake at the lake low-water mark, " acquired thereby no 
 title to any of the portion covered by water; 2 and it was held in New York 
 that the boundary on an artificial pond when described " to commence at a 
 stake near the high-water mark of the pond, and to run thence along the 
 high-water mark of the said pond to the upper end of the pond, ' ' was fixed 
 and permanent, and that the boundary did not change in consequence of 
 accretion or of gradual receding of the waters. This decision was doubtless 
 due to the nature of the body of water, the high-water mark of which could 
 be changed by the grantor by adjusting the height of his dam. It was 
 founded on the evident intention of the parties. The court considered the 
 boundary fixed. 3 
 
 When an artificial pond, which had been in existence for more than forty 
 years, and which had thus become a permanent body of water, and was still 
 kept up and maintained as such, and which had a margin of land between its 
 high- and low-water marks, was described as a boundary, it was held that the 
 land so conveyed did not extend to the thread of the stream from whose 
 waters the pond was formed, but only to the low-water mark of the pond at 
 the date of the execution of the deed. 4 
 
 424. Receding of Waters of Lakes and Ponds. This topic is usually 
 considered in the larger treatises on real property under the head of accretion. 
 By the term " accretion " is meant the gradual and imperceptible accumula- 
 tion of land by natural causes, as out of the sea or a river. Accretion of land 
 is of two kinds: (i) by alluvium, which is that increase of the earth on a shore 
 or bank of a river, or on the shore of the sea, by the force of the water, as by 
 a current or by waves, which is so gradual that no one can judge how much is 
 added at each moment of time; (2) by dereliction, which consists in the 
 gaining of land from the water in consequence of the water shrinking back 
 below its usual mark. Most of the additions to the shore of lakes and ponds 
 are caused by the dereliction or receding of the waters of such lakes and 
 ponds.* 
 
 Land formed by dereliction or gradual subsidence of the water belongs to 
 
 1 Lembeck v. Nye, 47 Ohio State 336, 2 Brophy -v. Richeson, 137 Ind. 114. 
 
 citing McCulloch v. Aten, 2 Ohio 308; 3 Cook v. McClure, 58 N. Y. 437. 
 
 Lamb v. Richets, n Ohio 311; Hopkins 4 Boardman v. Scott (Ga.), 30 S. E. 
 
 v. Kent, 9 Ohio 13; Gould on Waters, Rep. 982 [1897]. 
 199. 
 
 * See Sees. 371-400, supra. 
 
295 BOUNDARIES ON LAKES AND PONDS. 424. 
 
 the owner of the land to which it is an addition, and this doctrine is equally 
 applicable to tide-waters and to non-tidal rivers and lakes. If the waters in a 
 navigable lake recede gradually and insensibly, the land gained belongs to the 
 adjacent riparian owners; but if the receding be sudden, the increase belongs 
 to the state. It was so held in a case in North Carolina wherein it was proved 
 that the lake upon which the lands in question were bounded was navigable, 
 and the court said: " If the receding of the lake was sudden and sensible, the 
 land which it had covered and which by its dereliction became dry would not 
 be and ought riot to be included in defendant's grant; 1 but if the waters 
 receded gradually and insensibly, the lake ought to be considered one of the 
 defendant's boundaries." It is necessary that the fact be established whether 
 the water of the lake receded imperceptibly or not from the land in question, 
 because on that question the rights of the parties depend. 2 Gradual recession 
 of the waters of a meandered lake gives riparian proprietors the right to the 
 new land by following the recession of waters to their edge; but a consider- 
 able body of new land suddenly or perceptibly formed by reliction belongs to 
 the state, 3 as by a river cutting into it. 
 
 A timber-culture entryman who has obtained a patent from the govern- 
 ment acquires in reliction to the center of the lake occasioned by its drying 
 up after the day of his entry; 4 and the patentee of a fractional subdivision 
 bordering on a navigable lake which has been meandered in the government 
 surveys takes title to all land beyond the meandered line formed by the 
 gradual subsidence of the lake, since the boundary is not the meandered line, 
 but the water-line. 5 
 
 A railroad company does not, it seems, acquire by such reclamation an 
 absolute fee in the lands reclaimed, or any right of use, disposal, or control, 
 except for a right of way and for railroad purposes; nor does it thereby 
 acquire any rights, as a riparian owner, to reclaim still further lands from the 
 lake for its use, or for the construction of piers, docks, and wharves in further- 
 ance of its business. 6 In respect to lots bordering on the lake, and to which 
 the company acquired the fee by purchase, it does become vested with riparian 
 rights, and is entitled to fill up shallow waters of the lake, and to construct 
 piers, wharves, docks, and slips not extending beyond the point of navi- 
 gability. 7 
 
 When the waters of a lake are lowered by an act of public officers in 
 
 1 Fuller v. Shedd, 161 111. 462; Noyes Rep. 350. But see Hodges v. Williams, 
 v. Collins, 92 Iowa 566. 95 N. C. 331, and Noyes v. Board of Su- 
 
 2 Murry v. Sermon, I Hawks' R. 56. pervisors of Harrison County, 73 N. W. 
 See Noyes v. Board (Iowa), 73 N. W. Rep. 480. 
 
 Rep. 480 [1897]. 6 Illinois Cent. R. Co. v. State, 13 Sup. 
 
 3 Fuller v. Shedd, 161 111. 462 ; Noyes Ct. Rep. no. 
 
 v. Collins, 92 Iowa 566. 7 Illinois Cent. R. Co. v. State, 13 Sup. 
 
 4 Olson v. Huntamer (S. D.), 61 N. W. Ct. Rep. no, affirming 33 Fed. Rep. 730. 
 Rep. 479. See dissenting opinions of Justices 
 
 5 Knudson v. Omanson (Utah), 37 Pac. Shiras, Gray, and Brown. 
 
4 2 4' OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 making an improvement, riparian owners do not lose their rights in the lake, 
 but are entitled to free access to the waters of their lands. 1 * 
 
 After granting land bordering on a meandered non-navigable lake the 
 Federal Government cannot grant the land lying under the water or that formed 
 by a recession of the waters, and thereby deprive the original grantees of their 
 rights as riparian owners. 2 
 
 The shore-owner of a lake may fill in and dock out in front of his land so 
 long or so far as does not interfere with public rights. 3 Such license when 
 acted upon becomes irrevocable. The Supreme Court of the United States 
 shas held that a riparian owner on the Great Lakes, as well as on tide-waters, 
 has by grant, statute, or immemorial usage the right to build out such con- 
 venient wharves as do not obstruct the public rights of navigation. 4 On the 
 little lake Muskegan, in the state of Michigan, the Supreme Court of that 
 state has held that the riparian owners have title to the land under the water 
 so far out into the lake as it can be made beneficial for private and personal 
 use, subject to the paramount public rights of navigation and the incidents 
 thereto. The decision seems to have been based on the assumption that 
 neither the Federal Government nor state governments have ever asserted any 
 right to the small lakes within the boundary-lines of that state. 5 
 
 1 Priewe v. Land & Imp. Co. (Wis.), 2 Fuller v. Shedd (111. Sup.), 44 N. E. 
 
 67 N. W. Rep. 918. See Verplank v. Rep. 286. 
 
 Hall, 37 Mich. 79. As to the right to 3 N. J. Z. & I. Co. v. Morris C. & B. 
 
 draw down the waters of a lake to the Co., (N. J.) 15 Atl. Rep. 227. 
 
 damage and injury of riparian owners, 4 Button v. Strong, i Black 23. 
 
 see Smith v. Youmans (Wis.), 70 N. W. 5 Rice v. Ruddiman, 10 Mich. 125. 
 Rep. 1115. 
 
 * See Sees. 81-140, supra. 
 
CHAPTER XXIV. 
 BOUNDARIES OF ISLANDS. 
 
 431. Ownership of Islands. Questions of ownership and boundaries of 
 islands are determined by the same principles of the law as are applicable to 
 the mainland. These principles have been already discussed,* and the 
 different determinations made in regard to the ownership of lands under 
 water in the various states have been pointed out. These varying decisions 
 regarding ownership and boundaries of islands are largely due to the determi- 
 nation of what is a navigable stream, and it will be well to review here briefly 
 the laws regarding navigability, the divergence in which creates the difficulty. 
 
 The divergence arises from the inadequacy of the old common-law rule 
 prevailing in England to meet the conditions prevailing here. Thus by 
 common law the ownership of the bed or soil of rivers and waters was made 
 to depend on the navigability or non-navigability of the water covering the 
 land, and what waters should be considered navigable and what should not 
 was in England clearly and certainly established, i.e., that navigable waters 
 are those in which the tide ebbs and flows. This^ was a convenient and satis- 
 factory rule for England where waters in which the tide did not flow could 
 not be put to any practical commercial use. When the common law was 
 adopted by the various states this holding became a part of the law of this 
 country; but when questions whose solution depended upon this rule came 
 before the courts of this country it was found that the rule was totally 
 inadequate for the conditions prevailing here, where there are numberless 
 rivers and bodies of water which can be put to great commercial use and 
 which are in fact navigable but in which there is no tide movement. 
 
 It has been shown that the common law recognizes a distinction, as to 
 the property of the soil of rivers or waters navigable and those which are not 
 navigable. The former belong to the public, the latter belong to those whose 
 land borders on the waters ; and they have a property in the bed or soil of the 
 river under the water, subject to an easement or right of passage up and down 
 the stream in boats or other craft for purposes of business, convenience, and 
 pleasure. This is called in the civil law a servitude, which is quite consistent 
 
 * See Sees. 371-420, supra. 
 
 297 
 
43 J - OPERATIONS PRELIMINARY TO CONSTRUCTION. 298 
 
 with the right of property. There is an important difference between the 
 common and the civil law in regard to the rights of the public and individuals 
 upon the subject. By the common law the right of the king or the public 
 was limited to those places, whether bays, coves, inlets, arms of the sea, or 
 rivers, in which the tide ebbed and flowed, this being the common-law defini- 
 tion of navigable waters; whereas by the civil law all rivers, provided they are 
 navigable by ships or boats or perhaps any other floating vehicle, were con- 
 sidered public property. The doctrine of the common law is recognized to 
 the fullest extent in some of the United States, that of the civil law in others; 
 and in still others the doctrine of the common law is received, restricted, 
 and modified. 
 
 According to the rule everywhere adopted in this country and in England, 
 if an island rises in the sea, it belongs to the sovereign or the public, though 
 by the civil law it belongs to the discoverer or first occupant. If an island 
 be formed in a navigable river, the same rule of the common law gives it to 
 the sovereign, while by the civil law it belongs to the owners of the land on 
 each side. 
 
 Should an island, however, arise in an unnavigable river, both the civil 
 and the common law agree in assigning it to the adjoining proprietors. If 
 the middle line of the stream bisects the island equally, each proprietor will 
 take an equal share; but if unequally, then the larger share will belong to him 
 to whose land it is nearest. If the island arise not in the middle but entirely 
 on one side of the stream, then the whole of the island will belong to the 
 owner of the land on that side. This is the general rule upon the subject, 
 and it is usually applied by all the courts of this country because the adjoin- 
 ing landowners own the land under non-navigable waters. l 
 
 Thus where an island not otherwise lawfully appropriated is so formed 
 under the bed of a river not navigable as to divide the channel and lie partly 
 on each side of the thread of the river, it will be divided between the riparian 
 proprietors on the opposite sides of the river according to the original thread 
 of the river. 2 An island in a non-navigable river if all on one side of the 
 dividing-line belongs to him who owns the bank on that side. 3 
 
 In all cases where the title to the soil under the water is in the public, a 
 newly formed island in such body of water belongs to the public, as in the 
 case of the sea, navigable rivers, and the large fresh-water lakes -of this coun- 
 try. And in all cases where the soil under the water belongs to the riparian 
 proprietors bordering upon the water, the newly formed island in such body 
 of water will belong to the riparian owner. That is to say, the doctrine which 
 
 1 Hopkins Academy v. Dickenson, 9 4 Rich. 68; Butler v. G. R. & I. R. Co., 
 
 Cush. (Mass.) 548; Comm. v. Alger, 7 85 Mich. 246. 
 
 Cush. (Mass.) 97; Ingraham v. Wilkin- 2 Deerfield v. Arms, 17 Pick. (Mass.) 
 
 son, 4 Pick. (Mass.) 268; Pratt v. Lam- 41; Strange v. Spalding (Ky.), 29 S. W. 
 
 son, 2 Allen (Mass.) 284; Adams v. Rep. 137. 
 
 Beese, 2 Conn. 481; Bard well v. Ames, 3 Ingraham z/. Wilkinson, 4 Pick. 
 
 22 Pick. 333; McCullough v. Nail (N. C.), (Mass.) 268. 
 
2Q9 BOUNDARIES OF ISLANDS. 431- 
 
 governs in respect to the soil under the water will control in respect to the 
 island formed in such water. The owner of the soil under the water, by the 
 general laws of property, becomes entitled as of right to all accessions. All 
 authorities are agreed that if an island arises in the sea it belongs to the sov- 
 ereign or the public, because in all cases the sovereign is the owner of land 
 under tide- water. 1 
 
 The doctrine upon the subject will be understood by a reference to cases. 
 A leading case of Massachusetts (1826) which involved the right to an island 
 in the river Pawtucket recognized the rule of the common law that the 
 property in the soil of rivers not navigable, subject to public easements, be- 
 longed to those whose lands bordered upon them; and from this right of 
 property in the soil in the bed of the river the court deduced the right of 
 property in an island which gradually arose above the surface and became 
 valuable for use as land. Taking the thread of the river as it was immediately 
 before such island made its appearance, this rule would give the whole 
 island formed in the bed o'f the river, if it were wholly on one side of the 
 thread of the river, to the owner on that side; but if it were situated partly 
 on one and partly on the other side of the thread of the river, it should be 
 divided by such line, and held in severalty by the adjacent proprietors. The 
 dividing-line between the adjacent proprietors was run in the same manner as 
 if there were no island in the river. 2 
 
 The same doctrine was approved in 1852, when it was held that if the 
 course of a river not navigable changes and cuts off a point of land on one 
 side, making an island, such island still belongs to the original owner. In 
 such case, if the old bed of the river, being gradually deserted by the current, 
 had filled up and new land was formed, such newly formed land would have 
 belonged to the opposite riparian proprietors, respectively, to the thread of the 
 old river. And if new land was formed in the river above said island arid not 
 by slow, gradual, and insensible accretion to it, such new land above would 
 belong to the opposite riparian proprietors to the filum aqua or thread of the 
 river. The thread of the river in such case was held to be the median line 
 between the shores or natural water-lines on each side at the time the new 
 land was formed, without regard to the channel or deepest part of the stream. 3 
 The reader must determine in each case whether or not, under the laws of his 
 state, the river in which the land is situated would be held navigable or non- 
 navigable.* The doctrine which governs in respect to the soil under the 
 water will control in respect to the island formed in such water. 
 
 Where a stream or body of water in which an island arises is navigable in 
 
 1 Hale De Jure Marts, ch. 4 and 6; Mor- 3 Adams v. Beese, 2 Conn. 481; Bard- 
 
 ris v. Brook (Del. C. P.), 53 Am. Rep. well v. Ames, 22 Pick. 333; McCullough 
 
 215- v. Wall (N. C.), 4 Rich. 68; Tyler on 
 
 2 Ingraham v. Wilkinson, 4 Pick. 268; Boundaries 74, 75. 
 Deerfield v. Arms, 17 Pick. 41. 
 
 * See Sees 231-250 supra. 
 
43 r - OPERATIONS PRELIMINARY TO CONSTRUCTION. 3OO 
 
 fact but there is no tide movement, there is great divergence in the holdings. 
 In some states such an island belongs to the public, but many states give the 
 ownership of the soil under navigable waters to the riparian owner. The 
 whole question depends upon the construction of the word "navigable"; but 
 w r hen the ownership of the land under the water is once determined the owner- 
 ship of the island in such waters is clear. As stated by the United States 
 Supreme Court it is: "If an island or dry land forms upon that part of the 
 bed of the river which is owned in fee by a riparian proprietor, the same is 
 the property of such riparian proprietor. He retains the title to the land 
 previously owned by him, with the new deposits therein." 1 
 
 The result of the diverging views is curiously shown in the states of Illi- 
 nois and Missouri. The courts of Illinois have held that the Mississippi River 
 is not a navigable stream at common law because there is no tide movement 
 in it, and, applying the common-law rule, hold that riparian proprietors own 
 to the middle of the river or of a navigable slough or arm thereof, and that 
 therefore the riparian owner is entitled to any islands formed upon the bed 
 of the stream. 2 But the courts of Missouri hold that the Missouri and Mis- 
 sissippi rivers are in fact navigable, and then applying the old common-law 
 rule that the state owns soil under navigable waters, they hold that the private 
 ownership of lands bordering on those rivers stops at the water's edge. There- 
 fore it was held that the owner of contiguous lands is not the owner of an 
 island which springs up in the middle of the stream whether the island be 
 on one side or the other of the thread of the river. He goes only to the mar- 
 gin of the river. 3 
 
 Under this conflict of laws the determination of the ownership of an island 
 in the Mississippi River between the states of Illinois and Missouri would be 
 an interesting problem. It might have two different solutions, depending 
 upon the state in which the suit was brought. This same interesting circum- 
 stance might arise on other great rivers such as the Ohio, the Missouri, the 
 Red, or the Wabash River. 
 
 One's ownership of mainland on the shore of one of the Great Lakes does 
 not make him owner of an island lying therein 600 feet from the shore. 4 The 
 
 1 St. Louis v. Rutz, 138 U. S. 245. * Cooley v. Golden, 117 Mo. 33; Benson 
 
 2 Middleton v. Pritchard, 4 111. 510; v. Morrow, 61 Mo. 347; Barney v. 
 
 Fuller v. Dauphin, 124 111. 545 [1888]; Keokuk, 94 U. S. 324; Naylor v. Cox 
 
 Prest. Kaskaski v. McClure (111.). 47 N. (Mo.), 21 S. W. Rep. 589; Buse v. Rus- 
 
 E. Rep. 72; Griffin v. Johnson (111.), 44 sell, 86 Mo. 211; Perkins v. Adams (Mo.), 
 
 N. E. Rep. 206. And ste Fletcher v. 33 S. W. Rep. 778, on Missouri River. 
 
 Thunder Bay Co. (Mich.), citing many And see Victoria v. Schott (Tex.), 29 S. 
 
 cases [1883]; Gas-It. Co. v. Indus. Wks., 28 W. Rep. 681; 16 Am. & Eng. Ency. 
 
 Mich. 181; People v. Warner (Mich.), 74 Law 251. But see Jones v. Soulard, 24 
 
 N. W. Rep. 705 [1898]; Head v. Ches- How. (U. S.) 41. 
 
 brough, 13 Ohio Cir. Ct. Rep. 354; i * Sherwood v. Commissioner (Mich.), 
 
 Amer. & Eng. Ency. Law 139; 16 Amer. 71 N. W. Rep. 532. 
 
 & Eng. Ency. Law 251, 253. 
 
301 BOUNDARIES OF ISLANDS. 432. 
 
 limit of ownership is marked by the tide-line. 1 The title of a riparian owner 
 upon Lake Huron does not extend to an island within the lake. 2 
 
 432. Boundaries of Islands. If land be separated from an island by 
 water, as a slough, at the time of the grant or original survey, and the slough 
 afterward so fills up as to connect the mainland and the island, the question 
 of the dividing-line between the two owners is one depending upon the man- 
 ner in which the newly made land has been formed. If the soil has been 
 added by accretions slowly and imperceptibly, each, respectively, is entitled 
 to the accretion to his bank or shore, and the dividing-line will be the line of 
 contact where the two banks or water-lines come together. 
 
 If the stream or slough gradually fills up as the water recedes, the same 
 principle is applicable, and the new land belongs to the riparian owner from 
 whose shore the water receded ; and it was held to be the same whether the 
 stream was navigable or non-navigable. If, however, the slough simply fills 
 up from the bottom, or by deposits within its bed, and is not formed by accre- 
 tions to the bank, then the center (middle) of the slough between the mainland 
 and the island will be the boundary-line, i.e., the boundary-line will be as it 
 was before the water left it. 3 
 
 Where additions to the shore of an island belonging to a grantee of the 
 government are due to the imperceptible accumulation of soil, they belong to- 
 the owner. 4 
 
 Alluvion deposited against an island in a lake and a neighboring lot, so 
 as to connect them, must be equally divided between the owners of both. 5 
 
 Where the mainland on both sides of a stream and an island dividing the 
 stream have been surveyed and sold by the government as separate parcels, 
 the middle line is established in the center of the channels on both sides of 
 the island, between it and the mainland, as though two distinct streams 
 existed. 6 
 
 People v. Warner (Mich.), 74 N. W. 6 Bigelow v. Hoover (Iowa), 52 N. W. 
 
 Rep. 705 [1898]. Rep. 124. 
 
 2 Sherwood v. Commissioners (Mich.), 6 West v. Fox River Paper Co. (Wis.), 
 71 N. W. Rep. 532. 52 N. W. Rep. 803. See Croker v. Bragg- 
 
 3 Buse v. Russell, 86 Mo. 209. (N. Y.), 10 Wend. 260; Strange v. Spald- 
 * People v. Warner (Mich.), 74 N. W. ing (Ky.), 29 S. W. Rep.. 137. 
 
 Rep. 705 [1898]. 
 
CHAPTER XXV. , 
 BOUNDARIES ON STREETS AND ROADS. 
 
 441, Property in Streets and Ways. A few remarks may not be out of 
 
 place as to the nature of the property which an abutting owner has in a street 
 or way. It is* generally described as a title in fee-simple, subject to an ease- 
 ment of the public to enjoy the use of the land for all purposes of travel and 
 locomotion. In villages and cities in this country it is often subject by 
 statute to a further servitude of water- and gas-pipes, telegraph and telephone 
 lines, and other conveniences, necessaries, and comforts of city life. These 
 burdens upon streets are sometimes acquired without the aid of the statute, 
 by prescription (twenty years' use in some states), if the burdens are permitted 
 by abutting owners. The right may be so acquired as agajnst the abutting 
 owners of the street, but probably not against the public. Custom cannot 
 authorize such a trespass. If property owners would prevent such prescriptive 
 rights from being acquired in the street in front of their property, they should 
 remove them, or have an injunction issued to restrain their erection, under 
 the claim that they are a permanent trespass or a nuisance. * 
 
 In New York state the opinion has been expressed that when land is 
 dedicated for use as a public street it is part of the purpose in view that it 
 shall be used not only for passage, but for all such incidental purposes as 
 may be necessary, appropriate, and usual for the proper enjoyment of such 
 streets, including the building of sewers. 1 In Brooklyn the fee of an old. 
 Dutch road, and not a mere easement therein, was in the public under the 
 Dutch law. 2 
 
 The Indiana courts have held that abutting lot-owners, whose title 
 extended to the middle of a highway forty feet in width, could not maintain 
 an action for damages for an unlawful obstruction, eleven feet wide, caused 
 by the construction of a railroad embankment on the opposite side of the 
 road, the only effect of which was to render access to his property more diffi- 
 cult and inconvenient, and to force travel nearer to his lots, no physical 
 invasion of his rights or pecuniary damage being shown. 3 
 
 1 Matter of City of Yonkers, 117 N. Y. N. Y. Supp. 87. 
 
 564 [1889]. 3 Indiana, B. & W. Ry. Co. v. Eberle 
 
 2 Mott v. Clayton, 9 App. Div. 181, 41 (Ind.), n N. E. Rep. 467 [1887]. 
 
 * See Sees. 671-700, infra. 
 
 302 
 
303 BOUNDARIES ON STREETS AND ROADS. 442. 
 
 A deed in which the description of property is followed by a reservation 
 of a portion of that described to be used for a specific purpose, as an alley, 
 conveys the fee of the part or portion reserved subject only to an easement 
 declared. 1 
 
 In New York, where a deed conveying ' ' all that certain water and vacant 
 land and soil under water" described by metes % and bounds, excepted so 
 much as to form part of a street and certain avenues, " for the use and purpose 
 of public streets, avenues, and highways," it was held that the fee to the 
 parts excepted remained in the grantor though they are never used for the 
 purpose mentioned. 2 
 
 When a city has placed the curb on the opposite side of the street so as to 
 leave a space between the curb and the sidewalk for trees of ornamentation 
 on one side, while upon the other side only a place for a sidewalk was left 
 and of less width than provided by the ordinance, the city is not liable in 
 damages for such acts of its officials. 3 
 
 A right of way created by deed to the abutting owner cannot be defeated 
 by later deeds of other abutting portions giving power to alter and rearrange 
 the driveway in a certain event. 4 
 
 442. Rights of Abutting Owners to the Soil of Streets. Subject to these 
 easements and burdens, the abutting owner has the same general property 
 rights in the street fronting his premises as he has in the lot itself, such rights 
 extending to the middle line of the street. He has the exclusive right to the 
 soil, subject to the right of way of the public. 5 He may not remove it to 
 render the way dangerous or inconvenient. This property is also subject to 
 the reasonable control of the state, county, and village. Villages are incor- 
 porated by act of legislature, with power to keep all their streets and alleys in 
 repair and make such ordinances in relation thereto as may be necessary and 
 expedient, and they may make ordinances imposing a penalty upon persons 
 removing soil from their streets. Owners of the fee of the streets have no 
 right to remove or authorize the removal of gravel or dirt, contrary to such 
 an ordinance, without being liable to its penalty. 6 The city cannot appro- 
 priate it or authorize the removal of the soil, except what is necessary for the 
 purposes of construction and repair of its streets. The rights of the public in 
 the streets are pre-eminent, and when the improvement of the same requires 
 the taking away of material from one part to repair another part, it has been 
 held that probably the public easement would justify the appropriation of so 
 much material only as the process of construction and repair of the streets 
 
 v. Salentine (Wis.), 66 N. W. N. E. Rep. 1035. 
 
 Rep. 395. 5 Columbus & W. Ry. v. Witherow 
 
 2 New York v. New York Cent., etc., (Ala.). 3 So. Rep. 23 [1888]; Bradley v. 
 R. Co. (Sup.), 23 N. Y. Supp. 562. Pharr (La.), 12 So. Rep. 618. 
 
 3 English v. Danville (111.), 48 N. E. 6 Palatine v. Krueger (111.), 12 N. E. 
 Rep. 428 [1897], 99 111. App. 288. Rep. 75 [1887], reversing 20 Brad well 420 
 
 4 Boland v. St. John's Sc. (Mass.), 39 [1885]. 
 
443- OPERATIONS PRELIMINARY TO CONSTRUCTION. 304 
 
 might require. 1 Acting under its general powers to improve streets, a city 
 cannot make a contract by which the contractor is to receive a part of the 
 stone or soil of the streets as compensation for doing the work of grading. 
 The city is responsible for the appropriation of the soil under such a contract 
 as if the contractors were its agents. 2 The city or public authorities may not 
 carry the excavation of the bed of a road or street below grade for the purpose 
 of using the excavated soil, as gravel, on the surface with the intention of 
 filling up the pit thus made with less valuable earth. Such acts are in viola- 
 tion of the abutter's rights, for which he may maintain an action against the 
 contractor. 3 
 
 If one is owner of the fee in soil over which is a right of way, as an alley, 
 he may erect a building over, or an underground passage beneath, the way, if 
 in so doing he does not interfere with the rights of the public. 4 
 
 If, by act of legislature or by purchase or otherwise, the village or city has 
 title in fee to the soil of its streets, then it may make whatever use of the soil 
 it will, so long as it does not interfere unreasonably with the rights of the 
 public* in the street or way. 5 
 
 A city cannot grant a license to an abutting owner to use part of a street 
 as an area way to his building, or as a ditch to carry away Drainage, since such 
 use, being permanent, is inconsistent with the due use of the street by the 
 public. 6 
 
 443. Ownership of Whole Width of Street. Cases may arise where a 
 grantee may claim the whole of a street. If, as some courts hold, the rule is 
 founded on the presumption that the adjoining owners have originally 
 furnished the land in equal proportions for the sole purpose of a highway, it 
 may yield when the evidence shows that this was not the case. It was held 
 that if a grantor divided his estate into house-lots and streets, one street 
 being laid out upon the margin but wholly upon the grantor's estate, when 
 the street was located the entire street belonged to and passed with the 
 abutting lots under a general description in a deed of the original proprietor. 7 
 
 444. Rights of Abutting Owners in Other Ways than Streets, The 
 same rules and laws are applicable to public waterways, canals, and railways. 
 In the absence of an express statute, the owner retains the fee-simple title and 
 the exclusive ownership of the soil, subject only to the proper, reasonable, 
 and legitimate use of the land for the purpose of an aqueduct, a canal, or 
 railroad, as the case may be. 8 It has been held that a railway company could 
 
 1 Rich 77. City of Minneapolis, 37 Alb. [1886]. 
 
 Law Jour. 58 [1887]. *See Wait's Engin. & Arch. Jurisp., 
 
 3 Rich v. City of Minneapolis, 37 Alb. 266. 
 
 Law Jour. 58 [1887], and cases cited. And 6 Smith v. McDowell (111. Sup.), 35 N. 
 
 see Rochester Sav. Assn. v. Gorman E. Rep. 141; Lewiston v. Booth (Idaho), 
 
 (Sup.), 47 N. Y. Supp. 81 [1897]; Roberts 34 Pac. Rep. 809. 
 
 v. Sadler, 104 N. Y. 229 [1887], and cases 7 In re Robbins, 34 Minn. 79. 
 
 cited. 8 Higgins v. Reynolds et at., 31 N. Y. 
 
 3 Roberts v. Sadler, supra. 151 [1865]. 
 
 *Sutton v. Groll, 42 N. J. Law 213 
 
3O5 BOUNDARIES ON STREETS AND ROADS. 445. 
 
 not appropriate the grass growing upon its right of way. l Under the right of 
 a canal company to cross a highway the company does not take the fee to the 
 highway, but simply a right of way. 2 A canal company owning and operating 
 a canal through a stream, as a river, has only a right of way for canal pur- 
 poses. When the canal company is ousted from its corporate franchise, all 
 such rights revert to the abutting owners. 3 It is liable, however, to be taxed 
 though it does not own the subsoil of dams, sluices, etc. 4 
 
 Casting an additional burden upon land already subject to an easement, 
 as by constructing a telegraph line along the right of way of a railroad com- 
 pany, is as much a taking for a public use as was the taking of it for the 
 original easement, and courts of equity have jurisdiction to prevent it by 
 injunction until compensation is paid or tendered; but where a telegraph 
 line is constructed in good faith in connection with a railroad company over 
 its right of way, and for its use and benefit in the operation of its road, and 
 where it is reasonably necessary for that purpose, such use of the right of way 
 is within the scope of the original easement of the company, and the land- 
 owners are not entitled to additional compensation. 5 * 
 
 445. Boundary Affected by Changes in Street or Way. It seems that a 
 boundary upon a street does not change or shift with the street, like that upon 
 a stream, but is confined to its original location. A lot bounded by the side- 
 line or margin of a street was held to be fixed and permanent and not to shift 
 with the change in the line or width of the street. When a street was sixty- 
 three feet in width, but was contracted by twenty feet upon one side of the 
 middle line by the common council upon petition of the landowners fronting 
 upon the street, the court held that the lines of the grant were established in 
 reference to circumstances as they then existed, and could not be changed to 
 conform to any altered condition or circumstance without evidence that such 
 a change was contemplated. 6 Where land conveyed is bounded upon a 
 street the fee of which is in the grantor and the street is subsequently 
 narrowed, leaving a strip between the grantee's land and the new street 
 boundary, the grantee has still an easement and a right of way over said strip 
 to the street. 7 Where the north line of a street running east and west was 
 widened at a certain point and narrowed at another, it in no way changed the 
 south line of the street as shown on the plat under which it was located. 8 
 
 The lines of a street as laid out before the execution of a deed describing 
 
 Bailey v. Sweeney (N. H.), 9 Atl. (Md.), 18 Atl. Rep. 910. 
 
 Rep. 543 [1887]. White's Bank v. Nichols, 64 N. Y. 65 
 
 2 Lehigh Valley R. Co. v. Orange [1876]. See also O'Brien v. King (N. J.), 
 
 Water Co., 42 N. J. Eq. 205 [1886]. 7 Atl. Rep. 33 [1887]. But see Prouty v. 
 
 3 Day v. Railroad Co. (Ohio), 22 Reptr. Tilden, 164 111. 163. 
 
 533 [1886]. 7 White's Bank v. Nichols, 64 N. Y. 65. 
 
 *Flax Pond W. Co. v. Lynn (Mass.), 16 8 City of Madison v. Mayers (Wis.), 73 
 
 N. E. Rep. 742 [1888]. N. W. Rep. 43 [1897]. 
 
 5 American Tel. & Tel. Co. v. Smith 
 
 * See Sees. 811-840, infra. 
 
44^. OPERATIONS PRELIMJNARY TO CONSTRUCTION. 306 
 
 one of the bounding-lines of the property thereby conveyed as being a speci- 
 fied number of feet from the southerly line of such street are not, for the 
 purpose of determining the location of such lot, changed by the fact that the 
 center line of the pavement subsequently laid on such street does not corre- 
 spond with its center line as laid out by the city. 1 Building restrictions 
 imposed upon land with reference to the street refer to the street as it existed 
 at the time the restrictions were imposed, and not as subsequently altered by 
 public authority. 2 
 
 Where the owners of land convey the same, bounding it by the line of a 
 highway, parol evidence is admissible to show whether by such description 
 the parties meant the surveyed line of the highway or the line as actually used 
 and occupied. 3 A conveyance of land bounded by a road should be construed 
 as referring to the actual road as worked and used, and not to, an abstract 
 legal line, invisible and practically unknown. 4 
 
 When an act of the legislature directs the extension of a city to a 
 boundary to be determined by extension of a street, the street must be 
 extended in its orginal direction. 5 
 
 446. Presumption of Law that Abutting Owners Hold Title to Street, 
 AH American and English courts recognize the existence of a rule of pre- 
 sumption that a conveyance of land bounded on a highway passes to the 
 grantee a title to the center of the way. The difference in the opinions arises 
 from the application of the rule. The rule is founded upon a policy which 
 tends to guard against inconveniences of the most alarming character, and it 
 ought not to be frittered away by distinctions founded on differences in 
 phraseology which might readily escape attention. Primarily the question 
 hinges upon the intention of the parties, which is paramount. If the inten- 
 tion be disclosed by a careful consideration of the conveyance, it will prevail. 
 The intention expressed must be so clear as to overcome and refute the legal 
 presumption that the conveyance was to include one-half of the highway. 
 
 The determination of the boundary depends, therefore, upon the reasonable 
 construction of language (that may or may not show the real intention of the 
 parties) on the one hand, and upon public policy on the other. Chancellor 
 Kent treated it as a rule of public policy merely. 6 Little can be said about 
 the construction of language, but it is submitted (i) that the ordinary layman 
 or country surveyor, whose deeds and descriptions bring up these questions, 
 has little regard for technicalities of language (2) that it is not the actual 
 practice of surveyors in general to measure to the center of a street or stream 
 in making a survey, but to confine their operations, and therefore their 
 descriptions, to the land inclosed, exclusive of street or stream; (3) that it is 
 
 1 Hastings v. McDonough (App. Div.), * Blackman v. Riley (N. Y. App.), 34 
 
 43 N. Y. Supp. 628. N. E. Rep. 214. 
 
 2 Tobey v. Moore, 130 Mass. 448 [1881]. 5 City of Monroe v. Police Jury (La.)f 
 
 8 Wead v. St. Johnsbury & L. C. R. Co. 17 So. Rep. 498. 
 
 Vt.), 24 Atl. Rep. 361. 6 3 Kent 433. 
 
307 BOUNDARIES ON STREETS AND ROADS. 446. 
 
 an acknowledged popular belief that the public are owners of the soil of a 
 highway. These three facts should make the language of a description, in 
 such circumstances, extremely uncertain; and it would seem, if there are good 
 sound reasons of public policy why abutting owners should own to the center 
 of the street (or stream) that these reasons should prevail unless the contrary 
 intention appear in clear and explicit terms. 
 
 The chief objects of holding that abutting owners shall own to the center 
 of the street or stream are the following: (i) To prevent the existence of 
 innumerable strips and gores of land along the margin of streams and high- 
 ways, the title to which may remain in abeyance for generations, after which, 
 upon the happening of some unexpected event and one consequently not in 
 express terms provided for in the title-deeds, a bootless, almost objectless 
 litigation may spring up to vex and harass those who in good faith supposed 
 themselves secure from such embarrassment. 1 (2) The abutting owner pays 
 the taxes and is assessed for the improvements of these streets, such as paving, 
 curbing, and sewers, and it were an injustice that another should reap the 
 benefit of such expenditures. (3) The abutting owner is held responsible for 
 the condition of the street, such as the clearing the walks of snow and of 
 other obstructions. (4) Ordinances, statutes, and courts universally hold the 
 abutting owner responsible for all burdens and improvements to his half of the 
 street, which is a good and sound reason why he should be given proprietary 
 interests therein. 2 
 
 This line of argument was employed by Chief Justice Lewis of the Pennsyl- 
 vania court, who maintained that the general understanding of the people, 
 the extensive and immemorial practice of claiming and acquiescing in such 
 rights, ought to have great weight, if there were no other reason in support of 
 this rule. A contrary rule would introduce a flood of unprofitable litigation. 
 The rule had its origin in regard to the nature of the grant. Where land was. 
 laid out in town lots with streets and alleys, the owner received a full consid- 
 eration for all such streets and alleys in the increased value of the land. The 
 object of the purchasers of the lots was to enjoy the usual benefits of the 
 streets, that houses might be erected fronting on the same, with windows, and 
 doors and door-steps for passage in and out, and for the proper enjoyment 
 thereof. If the street belong to another, there would be danger of suits for 
 trespass for each and every act of the abutting owner inconsistent with the 
 rights of the proprietor of the street. 
 
 Other equally practical reasons for the rule exist. Throughout the history 
 of property, one of the prime objects of the English common law and of 
 English and American legislation has been to make secure rights in real 
 property, to render them absolute, and to quiet adverse claims, that the owner 
 
 ^ Red field 1 s dissenting opinion in Buck v. 62; Hamlin v. Pairpoint, 141 Mass. 51; 
 
 Squires, 22 Vt. 484. Kings Co. F. I. Co. v. Stevens, 87 N. Y. 
 
 2 Hughes v. Prov. & W. R. Co., 2 R. I. 287. 
 508; G. R. & I. R. Co. v. Heisel, 38 Mich. 
 
447- OPERATIONS PRELIMINARY TO CONSTRUCTION. 308 
 
 might enjoy in peaceful security the comforts of a landed estate. The law of 
 prescription, the statutes of frauds and of limitations, have all had this common 
 end in view, and it would be strange if we did not find the same efforts to 
 establish permanency and security in the laws of boundaries. To effect this 
 same object, the law of boundaries is so established as to avoid such old and 
 adverse claims. The law is so construed as to avoid miscellaneous parcels, 
 .gores, and pieces the ownership of which is not likely to be asserted or the 
 land itself occupied. 
 
 447. Boundary " On," " By," " Along," " Upon " a Public Way. It is an 
 established inference of law that a conveyance of land bounded on a highway 
 or river carries the fee to the center of the highway or river, provided the 
 grantor at the time owned to the center and there be no words or specific 
 description to show a contrary intent^ or unless it clearly appears that it was 
 intended to make the side-line of the street a boundary, instead of the center. 2 
 
 When a street is called for it is regarded as a single line. The thread of 
 the road is the monument of abuttal. 3 If the land be bounded upon a street, 
 river, or other monument having width, courts incline strongly to such an 
 interpretation of the language as will carry the fee of the land to the center 
 line of such monument, rather than to its edge only. 4 
 
 Generally when land is described by a road or highway as a boundary the 
 presumption is that the line is the middle of the way. The strength of this 
 presumption varies in different states, and in some is modified by the terms or 
 language employed. 5 
 
 Land bounded " on the north by the dugway at the north end of a horse- 
 shed," where the dugway referred to was thirty-one feet long and five and one- 
 half feet wide at the bottom, and apparently been cut by surface-water, but 
 had for many years been used as a footpath and occasionally by horses and 
 wagons, it was held that the dugway was a lane or alley, and that the deed 
 conveyed title to the middle thereof. 6 The tendency of the courts of the 
 Southern and Western states seems to be toward the New York and Massa- 
 chusetts rule of construction. 
 
 In New Jersey the grantee was held to own to the center of an avenue 
 dedicated to the public, where the plat designated thirty-three feet of the 
 center of the one hundred feet in width for railroad purposes. 7 And in 
 
 1 People v. Bd. of Supervisors, 125 111. 71 Fed. Rep. 626. 
 
 9 [1888]; Morrow v. Willard, 30 Vt. 118 5 In Massachusetts the rule is well 
 
 [1857]; Warren v. Thomaston (Me.), settled. Smith v. Slocum (Mass.), 9 Gray 
 
 [1883]; Salter v. Jonas, 10 Vroom 469; 36; Peck v. Denniston, 121 Mass. 17; White 
 
 Paul v. Carver, 26 Pa. St. 223; Columbus v. Godfrey, 97 Mass. 472; Dean v. Lowell, 
 
 & W. Ry. v. Witherow (Ala.), 3 So. Rep. 135 Mass. 55; Chadwick v. Davis, 143 
 
 23 [1888]. Mass. 7; O'Connell v. Bryant, 121 Mass. 
 
 2 Moody v. Palmer, 50 Cal. 31 [1875]; 557; Morgan v. Moore, 3 Gray 319; Sibley 
 Johnson v. Anderson, 18 Me. 76; Paul v. v. Holden (Mass.), 10 Pick. 249. 
 Carver, 26 Pa. 223; Newhall v. Ireson, 6 Pitney v. Heusted (Sup.), 40 N. Y. 
 8 Cush. 598; Buck v. Squires, 22 Vt. 493. Supp. 407. 
 
 3 Newhall v. Ireson, 8 Cush. 595. 7 Penna. R. Co. v. Ayres (N. J.), 14 Atl. 
 * Paine v. Consumers Co. (C. C. A.), Rep 901 [i< 
 
309 BOUNDARIES ON STREETS AND ROADS. 449. 
 
 Pennsylvania a grantee in a deed naming a specified street as an adjoinder on 
 one side takes the conveyance subject to. a right of way on the so-called street 
 previously granted by his grantor and subject to a prior appropriation of a 
 specified width of such street for the building of a lateral railroad. 1 
 
 448, Middle Line of Street the Boundary. The conveyance goes to the 
 center of way 2 if described as on, along, or by said street, or by said road, z or 
 lying on a street f or along the street* and when city lots abutting on a street 
 are conveyed by numbers. 6 The same rule holds when land has been granted 
 by the state and the description calls for a public road as a boundary. 7 
 
 449. Rule is Well Established in Some States that Center Line of Street 
 is Boundary. In Pennsylvania the law is distinctly settled that where a street 
 or a non-navigable stream is called for in a deed as a boundary or monument, 
 the fee passes to the center of it in the absence of an express exception in 
 the grant, or some clear and unequivocal declaration, or some certain and 
 immemorial usage to limit the title of the grantee in such cases to the edge 
 or side. Ordinary every-day language of a deed will not be construed so as 
 to alter the rule, thus producing a result so inconvenient and contrary to the 
 practice of the people. 
 
 In some states this presumption is so strong that only the most clear and 
 explicit terms will avail to prevent the adjoining owner from acquiring title to 
 the middle of the way. In Connecticut it was held that if the land conveyed 
 bounded on a highway it made no difference in the legal construction of the 
 conveyance whether the words upon, by, or along the highway were used or 
 not; the effect is the same to pass title to the middle of the way. 8 
 
 A call for a particular side of a street, and a measurement of a distance set 
 forth in a conveyance, 9 which brings the line only to the side of the street, 10 or 
 if both together are set forth, 11 or if the deed says nothing about a highway, 
 and the south line of the land does not correspond with the north line of the 
 highway as originally laid out, 12 or if the land be described as " beginning 
 on the westerly side of a road, thence northerly, touching the said westerly 
 
 Galley v. Pennsylvania R. Co. ,177 Pa. (Sup.), 30 N. Y. Supp. 1014. 
 
 117, 35 All. Rep. 638. 5 Hammond v. McLachlan, i Sandf. (N. 
 
 2 White v. Godfrey, 97 Mass. 472; Cottle Y.) 323; Hennig v. Fisher, I Sandf. (N. 
 v. Young, 59 Me. 105; Low v. Tibbetts, 72 Y.), 344. 
 
 Me. 92; Peck v. Denniston, 121 Mass. 17; 6 McCruden v. Rochester Ry. Co. (Cir. 
 
 Dean v. Lowell, 135 Mass. 55. Ct.), 25 N. Y. Supp. 114. 
 
 3 Edsall v. Howell (Sup.), 33 N. Y. Supp. 7 Cosgrove v. Kingston C. Co. (Pa.), 40 
 892; Re Cathedral Parkway (N. Y.), 20 All. Rep. 151 [1898]; Cheney v. New 
 App. Div. 404, 46 N. Y. Supp. 832; Gor- York, etc., R. Co. (App. Div.), 40 N. Y. 
 ham v. Eastchester El. Co. (Sup.), 30 N. Supp. 1103. 
 
 Y. Supp. 125; Dean v. Lowell, 135 Mass. 8 Champlin v. Pendleton, 13 Conn. 23; 
 
 55 [1883]; Firmstone v. Sparter (Pa. Hennessy v. Murdock (N. Y. App.), 33 
 
 Sup.), 25 Atl. Rep. 41; Carpenter v. Buck- N. E. Rep. 330; Mangam v. Sing Sing, 
 
 man (Ky.), 41 S. W. Rep. 579; Foreman n App. Div. 212, 42 N. Y. Supp. 950. 
 
 v. Presbyterian Ass'n (Md.), 30 Atl. Rep. 9 Paul v. Carver, 26 Pa. St. 223. 
 
 1114. And see Church v. Stiles (Vt.), 10 10 Newhall v. Iveson (Mass.), 8 Cush. 
 
 Atl. Rep. 674 [1887]; Mott v. Mott, 68 595. 
 
 N. Y. 246 [1877], and cases cited. u Cox v. Friedley, 33 Pa. St. 124. 
 
 * Tinker v. Metropolitan El. R. Co. 12 Champlin z/.Pendleton, 13 Conn. 23. 
 
449' OPERATIONS PRELIMINARY TO CONSTRUCTION. 3IO 
 
 side of said road, " l such calls will be insufficient to control (change) the 
 rule of law which extends the title of abutting owners to the center of the 
 road, in the respective states where cases are cited. 2 
 
 In Pennsylvania, however, when the deed named " the side of a street" 
 and gave the distances to minute fractional parts, and there were stakes or 
 monuments standing or placed upon the side at distances corresponding to 
 those given in the description, it was held that these did not show paramount 
 intention of the parties sufficient to reserve the highway. 3 The court remarked 
 that monuments could not be in the street any more than marked trees or 
 stakes could have stood in the middle of a stream. They would naturally 
 be. found upon the margin, and it is the universal custom to so place them. 4 
 
 The fact that the description in the deed, after stating the number of the 
 lot, gives its dimensions, exclusive of the highways, does not affect such con- 
 struction. 5 
 
 The owner of land on a highway in the country is presumed to own the 
 fee to the middle of the highway. A description " beginning at the corner " 
 of a neighbor's land on the north side of a highway, thence running " along " 
 the highway, thence, after several courses, to the place of beginning, 
 conveys the fee to the middle of the highway. 6 The same doctrine is main- 
 tained in Colorado, where the words to a street or to the side of the street and 
 along the street, carry the grantee to the middle; and the same holds if the 
 description calls for the corner of two intersecting streets as the starting-point. 7 
 
 Where general terms of description are used in a deed, like "to," 
 " upon," or " along" a highway or railroad, and where there is a conflict 
 between courses and distances on the one hand and monuments mentioned 
 in the deed on the other, the description by monuments must control. 8 
 
 If a grantee takes title to the center of a street bounding his conveyance, 
 the question arises whether as a purchaser by the square foot he must pay for 
 the land included in the highway. It has been held, in the absence of any 
 special agreement to that effect, that he need not in the city of Washington, 
 D. C. 9 * 
 
 1 Johnson v. Anderson, 18 Me. 76. Shaubacher, 57 Mo. 582 [1874]. See 
 
 2 Accord, Woodman v. Spenser, 54 N. Wead v. St. Johnsbury Co. (Vt.), 24 All. 
 H. 507; Kneeland v. Van Valkenburg, 46 Rep. 361. 
 
 Wis. 434. 6 Holloway v. Delano (Sup.), 18 N. Y. 
 
 3 Cox v. Friedley, 33 Pa. 124; Oxton v. Supp. 700, reversing 16 N. Y. Supp. 543. 
 Graves, 68 Me. 371. 7 Moody v. Palmer, 50 Cal. 31 [1875]. 
 
 4 See also Salter v. Jones, 39 N. J. Law But see, contra, Alameda Macadamizing 
 469. Co. v. Williams (Cal.), 12 Pac. Rep. 530 
 
 5 Brown v. City of Baraboo (Wis.), 74 N. [1887]. 
 
 W. Rep. 223 [1898]; /V Cathedral Park- 8 Church v. Stiles (Vt.), 10 All. Rep. 
 
 way (N. Y.), 20 App. Div. 404; Grant v. 647 [1887]. 
 
 Moon (Mo. Sup.), 30 S. W. Rep. 328; 9 Brent v. Smith, 5 Cranch C. C. 672 
 
 Moody v. Palmer, 50 Cal. 31 [1875]; [1840]. See Wharf Co. v. Portland, 46- 
 
 Boland v. St. John's School (Mass.), 39 Me. 42 [1858]. 
 
 N. W. Rep. 1035; Hannibal Mtge. Co. v. 
 
 * See Sec. 411, supra. 
 
311 BOUNDARIES ON STREETS AND ROADS. 45^ 
 
 450. The Intention of the Parties must Prevail. In all cases the 
 boundary depends upon the construction of the language used by the parties 
 and upon such surrounding circumstances as are proper to be taken into 
 account to ascertain the intention of the parties, keeping always .in view the 
 legal presumption that the parties intended to include the highway, and that 
 the burden is upon the party who assumes to show that the parties intended 
 to the contrary. 
 
 The rule that the middle of the way is presumed to be the boundary is not 
 absolute, irrespective of manifest intention. Other facts and considerations 
 indicating a different intention may be considered, such as the giving of 
 measurements which exclude the way, a statement that the parcel described 
 is a part of a larger tract, which does not include any part of it, or the fact 
 that the parties acted on a different construction. l The presumption may be 
 rebutted. 2 
 
 In New York the presumption is not so strong and the decisions do not 
 go to the extent of those of Pennsylvania and Connecticut, but limit the title- 
 to the manifest intention of the deed, as can be gathered from the terms 
 employed, and from the circumstances and conditions of the lands and 
 parties. 3 
 
 451. Intention Expressed by Different Phrases and Clauses Side or 
 Line of Street. A description which stated that a boundary commences at 
 the intersection of the side-lines of two streets, and thence by several courses- 
 along the side-lines of the same streets to the place of beginning, was held 
 necessarily to exclude the street. 4 
 
 A description of land as bounded by a .line running " on the easterly side 
 of a highway" certainly does not import " the center line of the highway" 
 so that the easterly side was construed to mean the eastern edge or line of the 
 highway. This construction is in keeping with that adopted in Massachusetts, 
 New Hampshire, Vermont, and New York. In Vermont this rule was 
 adopted after a thorough review of the authorities; and, like the case which 
 decided the law in New York that land bounded by a sh,ore excluded the 
 water, it was not decided without strong dissenting opinion. 5 
 
 When the boundaries of a field start at the side of the road and come back 
 to the road, and thence on the line of the road to the beginning, the conclu- 
 sion is that the road is excluded. 6 The designation in a deed of the place of 
 
 Crocker v. Getting (Mass.), 44 N. E. (Mass.), 10 Pick 249. Accord, English v. 
 
 Rep. 214. Brennan, 60 N. Y. 609; White's Bank v. 
 
 2 Re Rochester (App. Div.), 40 N. Y. Nichols, 64 N. Y. 65; People v. Bd. of 
 Supp. 1007. Supervisors, 125 111. 9 [1888]. And see 
 
 3 Mott v. Mott, 68 N. Y. 246 [1877]. Foley v. McCarthy (Mass.), 32 N. E. Rep. 
 
 4 English v. Brennan, 60 N. Y. 609; 669; Hobson v. Philadelphia (Pa.), 24 Atl. 
 White's Bank v. Nichols, 64 N. Y. 65. Rep. 1048; Mott v. Clayton (N. Y.), 9 App. 
 
 5 Buck v. Squires, 22 Vt. 484, and cases Div. 181; Blackman v. Riley (N. Y. App.), 
 cited. 34 N. E. Rep. 214; Holloway v. Delano 
 
 6 Chief Justice Shaw in Smith v. Slo- (N. Y. App.), 34 N. E. Rep. 1052; Hunt 
 cum (Mass.), 9 Gray 36; Sibley v. Balden* v. Brown (Md.), 23 Atl. Rep. 1029; Pea- 
 
45 2 - OPERATIONS PRELIMINARY TO CONSTRUCTION. $12 
 
 beginning as "on the north side of W. street, beginning, for outbounds, east 
 1 60 feet from L. street, extended to the east corner of lot ... owned by B., 
 and running with W. street," is unambiguous and cannot be varied or 
 explained by testimony as to understanding of the parties. 1 If premises are 
 bounded by the line of the street, the title extends only to that line. 2 When 
 the description was, " beginning at a monument on the south side of the road, 
 thence by various courses to said road, thence by said road to the place of 
 beginning," it was construed to limit the boundary to the south side of the 
 road. " To the road " would ordinarily mean to* the middle of the road, and 
 if the line were run from this middle point to the place of beginning, it would 
 neither be by the side of the road nor in the middle, but by a diagonal line 
 from a point in the center to a point in the side; and this would be incon- 
 sistent with any supposed intent of the parties. 3 
 
 A description of a lot on the east side of a public highway as " beginning 
 at the northwest corner of lot No. 4 opposite the southeast corner of lot 
 No. i on the east side of a highway, running thence . . . along the road," 
 was held to carry the title to the center of the road, especially when the 
 grantor in the same deed has conveyed lot No. i on the west side of the 
 western half of the road. 4 
 
 The words "to and along the road," if not controlled by the starting- 
 point, would, by well-settled construction, carry the boundary to the center, but 
 these words are also consistent with confining the boundary to the side of the 
 road. The words " beginning at the side of a road " would not be consistent 
 with a line through the middle of the road. 5 
 
 452, Intersection of Streets or Roads. A deed by metes and bounds, 
 beginning at "a post planted" at intersection of W. and S. streets, thence 
 northwesterly 500 feet, etc., thence to a "post planted on the line of W. 
 street," conveys no part of the street. 6 
 
 When a deed described premises as " beginning at the intersection of the 
 exterior lines of two streets," the point thus established was held to control 
 the other parts of the description. Lines running along the streets are held 
 confined to the exterior lines of the streets, and the soil of the street is not 
 included in the grant. 7 It seems that the corner of two intersecting streets 
 may be in the middle of such streets. 8 
 
 body Hts. Co. z/. Sadder, 63 Md. 533. * fie Cathedral Parkway (N. Y.), 20 
 
 But see Holloway v. Southmayd (Sup.), App. Div. 404. 
 
 18 N. Y. Supp. 707. 5 Kings Co. Fire Ins. Co. v. Stevens, 
 
 1 Neal v. Hopkins (Md.), 39 Atl. Rep. 87 N. Y. 287; Blackman v. Riley (N. Y. 
 322 [1898]. App.), 34 N. E. Rep. 214. 
 
 2 Wharf Compy. v. Portland, 46 Me. 42 6 Neal v. Hopkins (Md.), 39 Atl. Rep. 
 [1858]. 322. 
 
 8 Sibley v. Holden (Mass.), 10 Pick. 249. 7 White's Bank v. Nichols, 64 N. Y. 65 
 
 See also Low v. Tibbetts, 72 Me. 92; Peck [1876]. 
 
 v. Denniston, 121 Mass. 17; Peabody Hts. 8 Holloway v. Delano (Sup.), 18 N. Y. 
 
 Co. v. Sadtler, 63 Md. 533; Rieman v. Supp. 700; Holloway v. Southmayd (Sup. 
 
 Baltimore, etc., Co. (Md.), 31 Atl. Rep. Ct.), 18 N. Y. Supp. 707. 
 444. 
 
313 BOUNDARIES ON STREETS AND ROADS. 454 
 
 453. Boundaries on Private or Unaccepted Streets, The rules laid 
 down, however, have been held not to apply to intended streets, nor to land 
 intended to be dedicated as a highway, but only to existing or established 
 roads. This rule seems to be applied in England, 1 and in Maine to parks; 2 
 and where an estate has been mapped and house-lots and streets designated 
 upon the map, and the land was bounded " southerly on Center Street, there 
 measuring 120 feet," referring to a map, Center Street having been prepared 
 and used as a street or way. 3 The same law is applied in New York and 
 Massachusetts to private streets. 4 In some cases private streets are held to 
 belong to abutting owners. 5 Private streets do not belong to abutting owners 
 in Maryland. 6 If plat is made and recorded, they do in Illinois. 7 
 
 454. Boundaries on Ways when Land is Described by Reference to a 
 Plat. If land upon a highway is conveyed by a plan on which the tract is 
 colored, excepting the way, and its dimensions ascertained by measurement, 
 the presumption of law is that the soil of the highway to the center of the 
 way passes unless there is evidence upon the face of the conveyance to show 
 that a moiety of the highway was not intended to pass. 8 The presumption is 
 universal, in the absence of express evidence, that the adjoining owners have 
 contributed to the formation of the road, and have dedicated it for the public 
 benefit; it is reasonable, therefore, that when a man has granted all his land 
 or all his fields, he should be held also to have granted the soil of such roads 
 as may form the boundary of his property up to the middle line thereof. 9 A 
 reference to a plan annexed, the measuring and coloring of which would exclude 
 the street, or a description by lines and measurements which would only bring 
 the premises to the exterior line of the highway, will not exclude it nor rebut 
 the presumption. 10 It seems, therefore, that the intention of such a dedication 
 will not be presumed, but must be expressed or shown by some evidence, as a 
 plan or some act of the dedicator. Such cases present a very strong plea for 
 care in surveying and laying out land, when the placing of a word upon a 
 map may forfeit a man's title to his property. It illustrates the evils of 
 garnishing maps, and planning public features, without authority from the 
 proprietor. A map of an estate or town-site should be carefully reviewed and 
 explained by a competent authority before it is published and distributed by 
 
 1 Leigh v. Jack, 3 Ex. Div. 264. 6 B. & O. R. Co. v. Gould (Md.), 8 Atl. 
 
 2 Bangor House v. Brown, 33 Me. 309. Rep. 754 [1887]. 
 
 3 Accord, The U. B. Ground v. Robin- 7 (111.) 15 N. E. Rep. 854 [1888]. 
 
 son, 5 Wharton 18. 8 Berridges v. Ward (Eng.), 10 C. B. 
 
 iSemble, Bissell v. N. Y. Cent. R. Co., (N. S.) 400 [1861]; Re Cathedral Park- 
 
 23 N. Y. 61; Fisher v. Smith, 9 Gray 441; way (N. Y.), 20 App. Div. 404. See 
 
 Stark v. Coffin, 105 Mass. 328; Motley v. also Sutherland v. Jackson, 32 Me. 80; 
 
 Sargent, 119 Mass. 231; Goulds. Eastern Gould v. Eastern R. Co., 142 Mass. 85; 
 
 R. Co., 142 Mass. 85. But see Mott v. Hansom v. Campbell, 20 Md. 223; Bos- 
 
 Mott, 68 N. Y. 246. ton v. Richardson, 13 Allen 146. 
 
 6 Philadelphia v. Scott, 8l Pa. St. 85. 9 Leigh v. Jack (Eng.), 3 Ex. Div. 264. 
 
 But compare English v. Brennan, 60 N. Semblr, Hennessy v. Murdock (N. 
 
 Y. 609. Y. App.), 33 N. E. Rep. 330. 
 
455- OPERATIONS PRELIMINARY TO CONSTRUCTION. 314 
 
 the proprietor, for it involves the consideration of many nice questions of law 
 and engineering.* 
 
 455. Reservation of Narrow Strip of Land as Boundary of a Village. 
 In laying out an estate for a town it is sometimes the practice to reserve to 
 the original owner, or to the promoters, the exclusive ownership and control of 
 a narrow strip of land (say two feet in width) circumscribing and surrounding 
 the entire village-site. This is done to prevent outlying landowners from 
 opening streets and avenues and dividing up their lands into lots, the sale of 
 which would cheapen those in the village laid out. With such a strip sur- 
 rounding the village, any attempt to enter the village from without will be a 
 trespass, and any attempt to connect with the streets, avenues, gas-, water-, 
 or steam-pipes, or to profit by the improvements afforded by the village, is 
 effectually blocked. The promoters of the village may build a wall across 
 any way opened, or about the entire village-site, or they may prevent any 
 outsiders from entering an action of trespass. The width of the strip is 
 immaterial so far as the rights of the parties are defined. 
 
 The one-vigintillionth part off the front end of a lot may be so minute as 
 to be unappredable by the physical senses, yet nevertheless the mind recog- 
 nizes it as a real entity ; and a title obtained to it by a deed under a tax sale 
 would cut the owner off from access to the street, and render him guilty of a 
 technical trespass whenever he passed over it. 1 Yet the courts of the same 
 state have held that a deed which describes so infinitesimal a portion of land 
 that it cannot be identified is void. 2 
 
 The New York courts have held that an encroachment of one-fourth of an 
 inch upon an adjacent lot did not warrant a denial to the vendor of a specific 
 performance of a contract to purchase by the vendee. 3 
 
 A strip two feet wide along the side of lots next to the street, which the 
 plat provides is reserved for location of fence, to be perpetually held as private 
 property of the owners of the several lots in the plat collectively, cannot be 
 separately sold for street assessment, but the owner of each lot owns the fee of 
 it, subject to an easement in favor of the other lot-owners, as he owns the fee 
 to the middle of the street, subject to the easement of the public. 4 
 
 456. Reverting of Abandoned Streets to Abutting Owners. When land 
 is sold described as extending "to the center of the street" and the street is 
 subsequently abandoned and damages paid to the grantee to compensate him 
 for closing the street, he may not lay claim to any land of the street further 
 than to the center. The land of the street opposite to him will revert to the 
 original grantor. 5 
 
 1 Connecticut Mut. Life Ins. Co. v. 4 Town of Woodruff Place v. Raschig- 
 Stinson, 62 111. App. 319. (Ind. Sup.), 46 N. E. Rep. 990. 
 
 2 Gloss v. Furman, 164 111. 585, 45 N. 5 Baltimore & Ohio R. Co. v. Gould 
 E. Rep. 1019, affirming 66 111. App. 127. (Md.), 8 Atl. Rep. 754 [1887]. 
 
 8 Katz v. Kaiser, 10 App. Div. 137. 
 
 * See Sees. 701-710, infra. 
 
315 BOUNDARIES ON STREETS AND ROADS. 4$6. 
 
 By statute in Michigan it is provided that when a street or alley is vacated 
 the same shall be attached to the lots bordering thereon, and the title thereto 
 .shall vest in the person owning the property on each side to the center of such 
 a street or alley. Under this law, in a case where an alley had'been dedicated 
 to the public by a plat reserving to the dedicator, his heirs or assigns the 
 reversionary interest, it was held that the fee belonged to the abutting owners. 1 
 
 ^cudder v. Detroit (Mich.), 75 N. W. Rep. 286 [1898]. 
 
CHAPTER XXVI. 
 BOUNDARIES DETERMINED BY ARBITRATION. 
 
 461. Arbitration a Popular Means of Settling Boundary Disputes, In 
 
 the treatment of the subject of arbitration it is intended to give only so much 
 of the law as will enable a surveyor to intelligently advise his patron as to his 
 boundaries when called upon to determine them, and to enable him to establish 
 them as they should be located, in view of all the facts and circumstances. 
 
 Arbitration is the most frequent and satisfactory method of deciding the 
 location of disputed boundary-lines. The fee's and services of lawyers, the fees 
 of clerks, issuing of writs, the thousand and one delays, vexations, and 
 annoyances of court machinery, are avoided and the question quickly and 
 intelligently decided. A determination of the boundary-line of an estate by 
 one intelligent, disinterested, and conscientious surveyor, or by three such sur- 
 veyors, is much more likely to be true and equitable than a determination by 
 twelve jurymen of average intelligence, who know little more about a problem 
 of surveying, and about surveyors' methods in such a problem, than they do 
 about a case of leprosy or its treatment by the medical profession. Intelligent 
 landowners might as well call on a jury to attend them and prescribe for them 
 when they have a fever as to call on them to solve a difficult problem in engin- 
 eering, and they would get equally as good treatment in one case as in the 
 other. If a man knows he is in the wrong and that he is not justly entitled 
 to what he claims, then one of the best evidences of it, to a surveyor, is his 
 eagerness to take his claim into a court of law. He may have a hopeless case, 
 if in the hands of an intelligent surveyor, and yet -recover through an igno- 
 rant jury. 
 
 What has been said applies generally to the arbitration of most ques- 
 tions in engineering, and the reader is referred to Wait's Engineering and 
 Architectural Jurisprudence in regard to the subject. 1 
 
 462, Submission of Disputes in Regard to Real Estate, There is a pop- 
 ular notion that matters with regard to real estate cannot be submitted to 
 arbitration, but this is not so, and there seems to be no good reason why such 
 
 1 Wait's Engin. and Arch. Jurisp., ors; Johnson's Theory and Practice of 
 Chapter XIX, 519-533- And see Surveying, Appendix A. 
 Cooley's Judicial Functions of Survey- 
 
 316 
 
$17 BOUNDARIES DETERMINED BY ARBITRATION. 464. 
 
 disputes may not be arbitrated. If the award affects the title to the land or 
 real estate, then the submission must be under seal on the principle that the 
 authority to do an act should be of as high an order as the act itself. 1 The 
 award, although conclusive between the parties, cannot pass title. It 
 merely prevents the losing party from denying the superiority of the title of 
 the other party. If arbitrators wish that the property be conveyed, they should 
 specially order the parties to execute and deliver a deed of conveyance. An 
 award fixing the boundary-line will be a good defense to an action of trespass, 
 and it will support an action of ejectment. 2 An award that the dividing- 
 line shall be five feet from the fence and shall cut off A's land to be added to 
 B's land, the expression simply describing the land as established and not 
 showing an unwarranted taking of land, is not in excess of a general authority 
 to establish the true boundary-line between the litigants. 3 
 
 When a statute provides that a controversy concerning the boundaries of 
 land, but not the claim of any person to the estate in fee, may be submitted to 
 arbitration, a dispute as to the ownership of a strip of land which is claimed 
 by the adjoining owner, and which is expressly conveyed to him in fee by his 
 deed, cannot be determined by arbitration. 4 
 
 463. Effect of a Submission to Arbitration. The submission amounts 
 simply to an agreement to await the award. In a bond conditioned " to 
 abide by and perform an award" the words "abide by" do not mean to 
 acquiesce in, but simply to await the award without revoking the submission. 
 It has been held, therefore, that entering on disputed land and erecting a fence 
 several rods from the line found and fixed by arbitrators, to whom the dispute 
 had been referred, was not a breach of the arbitration bond. 
 
 No action can be maintained on the agreement "to abide by and perform 
 the award. ' ' Such an act before the award is made would be a breach of the 
 submission, and would give an action on the bond ; but the award having been 
 made in pursuance of the submission, the parties are left to the ordinary reme- 
 dies at law to settle subsequent controversies, and they afford ample redress. 
 
 The digging up and removing of stone monuments erected by a surveyor 
 as an arbitrator to designate the division-line found and established by his 
 award, by one party, and his denying that to be the true line, is likewise held 
 not to be a breach of his arbitration bond. He is liable for trespass and dam- 
 ages consequent to it. 5 
 
 464. Determination by Arbitrators is Final. A disputed boundary may 
 be conclusively determined by a third person as an arbitrator or an umpire on 
 behalf and by agreement of the adjoining owners. This third party or arbi- 
 trator is usually a civil engineer or surveyor, or an odd number of persons who 
 
 1 1 Amer. & Eng. Ency. Law 655. Rep. 938. 
 
 2 1 Amer. & Eng. Ency. Law 714. 5 Weeks v. Trask (Me.), 16 All. Rep. 
 
 3 Pearson v. Barringer (N. C.), 13 S. E. 413 [1889]; Marshall v. Reed, 48 N. H. 
 Rep. 942. 36. 
 
 4 Lang v. Salliotte (Mich.), 44 N. W. 
 
46 5 OPERA TOON'S PREL IMINA RY TO CO NS TR UCTION. 3 1 8 
 
 are especially qualified to determine the location of the line, and in whose 
 honesty and qualifications the parties have confidence. 
 
 When adjoining owners have mutually agreed to submit to and abide by 
 the decision of a third person in regard to boundaries in dispute between them, 
 and the question has been decided and an award made, the decision is conclu- 
 sive upon both parties and cannot afterwards be questioned or disputed. A 
 valid award has the same effect as a judgment and effectually precludes the 
 parties to the controversy from ever litigating the matters anew. 1 
 
 Surveys are to no purpose in deciding the division-lines, after such a sub- 
 mission and award, except with a view to ascertaining or staking out the lines 
 determined and fixed by the parties to whom the question was referred. Such 
 agreements with regard to boundaries need not be under seal nor in writing ; 
 they may be simple parol agreements ; and in the absence of any provisions 
 to the contrary the award may be by parol, 2 or by the act of the arbitrator, 
 who may himself fix the line according to his award. 3 The fact that the sub- 
 mission is in writing or even under seal does not require that the award be 
 under seal or in writing. 4 Nor is it necessary that it be attested by witnesses. 
 
 If, however, the submission contains instructions in regard to the form ot the 
 award, the instructions must be strictly followed unless waived by the parties ; 
 and a mere intimation that a written award is required will suffice to render it 
 necessary. 4 
 
 465. What Constitutes a Submission. Any form of words will be suf- 
 ficient at common law to constitute a submission to arbitrators, if it expresses 
 the intention to submit to and abide by their decision and award. It has even 
 been held that the intention need not be expressed in words, but the submis- 
 sion may be implied by law from their acts or the circumstances attending the 
 submission. 5 In some states statute laws have been passed requiring certain 
 ceremonies in case of submission to arbitration. The submission must be 
 mutual and definite in its terms and be made by all the parties to the dispute. 
 It should be certain as to the subject-matter or boundary-line that is to be de- 
 termined. If the submission is uncertain, the award may be set aside. 6 
 
 466. Arbitrators Should be Named. The parties to whom the contro- 
 versy is referred must be definitely ascertained and agreed upon both as to 
 number and name, or at least as to how they are to be selected and ascertained. 
 Where an agreement was made to refer the matter in dispute ' 'to two disinterested 
 men, together with a surveyor, with privilege to call in a third party," it was 
 held that the reference was to two arbitrators only, with liberty to call in an- 
 other, and the surveyor was designated to aid and not to act as one of them. 7 
 
 J i Amer. & Eng. Ency. Law 711. Stewart v. Cass, 16 Vt. 663; Valentine v. 
 
 3 1 Amer. & Eng. Ency. Law 692, and Valentine, 2 Barb. Ch. (N. Y.) 430; Wil- 
 
 cases cited. son v. Getty, 57 Pa. St. 266; Evans v. 
 
 8 Jones v. Dewey, 17 N. H. 596. McKinsey/6 Litt. (Ky.) 262. 
 
 4 i Amer. & Eng. Ency. Law 692. 6 Woodward v. Atwater, 3 Iowa 61. 
 
 5 i Amer. & Eng. Ency. Law 656; 7 Crawford z/. Orr, 84 N. C. 246. , 
 Whitcher v. Whitcher, 49 N. H. 176; 
 
319 BOUNDARIES DETERMINED BY ARBITRATION. 467. 
 
 Any one may be an arbitrator, for every person is at liberty to chose whom 
 he likes best for his judge, but he cannot afterwards object to the manifest de- 
 ficiencies of his choice. 1 The only thing that disqualifies a person from acting 
 in the capacity of an arbitrator is a secret interest in the question to be decided. 
 If the interest is known to both parties to the dispute and they do not object, 
 they will be considered to have waiv f ed their objection and the award will be 
 binding upon the parties. Family relationship between parties and any pecu- 
 niary or property interest of the arbitrator in the dispute or award, the recep- 
 tion of favors or gifts by the arbitrator which may have the effect of inducing 
 him to act unfairly, if not known to the other party, may disqualify him, or be 
 sufficient cause for the court to set aside his award. 
 
 The fact, however, that the arbitrator has been counsel in another action 
 for either party, or that one of the parties is indebted to the arbitrator for a 
 small amount the receipt of which does not depend on the award, or that the 
 arbitrator is a debtor to one of the parties, is not sufficient ground for disquali- 
 fication or to give a court jurisdiction. 2 
 
 467. Award is Irrevocable and Binding. It is only after the question 
 submitted has been acted upon and the award has been made that the submis- 
 sion becomes irrevocable. One adjoining owner may regret his act, or learn 
 something to shake his confidence in the arbitrator, and wish to rescind his 
 agreement to submit. This he may do at any time before an award has been 
 made, even though it was entered into for a consideration. The revocation 
 must be express, positive and absolute, and notice be given to the other party 
 and to the arbitrators, in order to have it amount to a revocation of the sub- 
 mission. 
 
 When a landowner has himself assisted in making the survey of a bound- 
 ary-line and has himself marked the line through woods, and a conveyance has 
 been made by such line, he cannot years afterwards deny that the line so 
 marked and recognized was the true boundary-line. 3 So if the purchasers of 
 adjoining land take possession and fence their lots soon after a survey is made, 
 it will be presumed that their possession was taken according to lines estab- 
 lished. 4 So, too, if a fence exist and be pointed out as the boundary, the 
 person so designating it as a boundary may riot thereafter dispute it. 5 
 
 Where a landowner surveys a boundary -line for his land, which is publicly 
 marked, and sells land with reference thereto, he is estopped from denying 
 the correctness of its location as against one locating land with reference 
 thereto. 6 
 
 An agreement for a survey of boundary-lines, if not followed by an actual 
 
 1 i Amer. & Eng. Ency. Law 671. * Root v. Cincinnati (la.), 54 N. W. 
 
 2 Wait's Engin. & Arch. Jurisp., Rep. 206. 
 
 508-518, 523; i Amer. & Eng. Ency. Law 8 Phinney v. Campbell (Wash.), 47 Pac. 
 
 672, 673. Rep. 502. 
 
 'Chadwell v. Chadwell (Tenn.), 23 S. 6 New York & T. Land Co. v. Gardner 
 
 W. Rep. 973; Holland v. Thompson (Tex. Civ. App.), 25 S. W. Rep. 737. 
 (Tex.), 35 S. W. Rep. 19. 
 
468. OPERATIONS PRELIMINARY TO CONSTRUCTION. 32O 
 
 survey, cannot affect established boundaries. 1 After an agreement in regard 
 to a boundary all the persons interested on the lands should be produced.' 4 
 When a boundary-line has been fixed by a surveyor employed by several prop- 
 erty owners, it is not binding on such owners against an adjoining owner who 
 was not a party to the surveying and who never acquiesced in the award. 3 
 
 Where adjoining owners have located a boundary-line with the obvious 
 intention of making it the true line and have acquiesced therein, it raises a 
 presumption that that is the true line which is not overcome by the mere fact 
 that a survey made long before the government monuments had been obliter- 
 ated reveals a different line. 4 
 
 Where adjoining owners submit to arbitration the question as to the true 
 boundary-line between them, the award is sufficient to establish the line as 
 between the parties, their heirs and privies. 5 The conclusive effect of a survey 
 establishing a boundary between adjoining owners, made pursuant to statute, 
 may be waived by the parties by agreement or by a new survey. 6 
 
 468, Before Award is Made, Submission to Arbitration may be Re- 
 voked. If the agreement to submit be in writing, then the revocation should 
 also be in writing, and a submission under seal should be revoked by an instru- 
 ment under seal. The submission may be revoked by change of circumstances, 
 as by the death of either party or one of the arbitrators, unless provisions 
 have been made for such an emergency. The refusal of one of the arbitrators 
 to act may work a revocation, unless the statutes or the submission itself pro- 
 vides for his substitution or release. The bringing of a lawsuit on the same 
 dispute as was referred, before the award has been rendered ; the marriage (if 
 at common law) of one of the parties, who was a single woman ; the failure to* 
 fulfill a condition which by the terms of the submission was to occur before the 
 award, may each and all operate as a revocation. The sale of the tract whose 
 boundary has been submitted revokes the submission, as the submission is not 
 binding upon the purchaser if he bought without notice of the submission. 
 
 If one party revoke without the consent of the other, he renders himself 
 liable to an action of damages for the breach of his contract. The damages 
 will be confined to what the other party has actually suffered, and this is so 
 even though a bond has been given and the penalty named. 7 
 
 469. Award of Arbitrators Held Not to Affect the Title to Land. In 
 New York state there exists a statute which makes awards regarding all matters 
 of real estate absolutely void, but it is held to refer only to cases where a 
 claim to the legal title is involved. 8 
 
 v. Eldridge (Ind.), 36 N. E. Rep. 'Kennedy v. Farley (Sup.), 31 N. Y. 
 
 522. Supp. 274. 
 
 2 Donaldson v. Rail (Tex.), 37 S. W. 6 Spacy v. Evans (Ind.), 48 N. E. Rep* 
 
 Rep. 16. 355 [1897]- 
 
 5 Kempmann v. Heintz (Tex.), 24 S. 7 i Amer. & Eng.Ency. Law 664-666. 
 
 W. Rep. 329. 8 i Amer. & Eng. Ency. Law 660; 2 id 
 
 4 Wollman v. Ruehle, 75 N. W. Rep. (2d ed.) 801. 
 425- 
 
321 BOUNDARIES DETERMINED BY ARBITRATION. 4?2. 
 
 Though awards with regard to boundaries may not change, in general, the 
 ownership of strips or small pieces of land, yet such strips or pieces are 
 subjects for arbitration, their establishment not being regarded as a transfer of 
 property, but rather as the determination of the true boundary. The submis- 
 sion need not, therefore, be under seal nor even in writing. If, however, any 
 question as to title or ownership of real estate is to be determined it must be 
 in writing and under seal. 1 
 
 470; Disputes Should be Submitted to Arbitration. When a surveyor 
 has been engaged to settle a disputed boundary between two parties, and they 
 have agreed to abide by his decision in the matter, it is desirable to make that 
 agreement a submission to arbitration, and he should exercise his persuasion 
 to have it so made in writing and under seal. It gives the surveyor perfect 
 freedom to exercise his free and unprejudiced judgment. He can reprove 
 and resent any urging, pressure,, or tendencies brought by either party to 
 swerve him from the cold mathematical results that his instruments, figures, 
 and good judgment give. Being in the employ of both and neither separately, 
 he is in no way under obligations to them, nor they to him. 
 
 471. Submission Its Form and Contents. Though such a submission 
 is not required by law to be in writing, yet it is, recommended in this as in all 
 other business that it be made of record. If the parties mean business and 
 are not of the over-cautious class, they will not generally hesitate to make 
 their submission under seal, binding it with a bond or penalty. A surveyor 
 must be guided in this by the dispositions of the parties, the interests at 
 stake, and the difficulties attending the solution of the controversy. If titles 
 are likely to be affected or property change hands, it is imperative that the 
 submission shall be under seal, 2 and for this reason it is necessary that there 
 be evidence of the submission. A written contract will best establish such an 
 agreement, and it is therefore recommended. 
 
 The submission should be drawn in acccordance with the suggestions, 
 pointed out in the preceding pages, and should plainly show the intention of 
 the parties as to what they wish to submit, the subject-matter, and to whom 
 they submit it, as arbitrator(s). Frequently the agreement to submit has. 
 been entered into before the surveyor is apprised of it, in which case he has- 
 only to act according to its terms. The surveyor is to look to the agreement 
 of submission for his duties and powers, and if they are not denned or 
 modified by state statutes he will be guided entirely by the submission,, 
 including the papers, maps, and documents to which it refers. 3 
 
 472. Powers of Arbitrator are Sometimes Restricted. His powers may 
 be restricted by the submission; but if they are not and the submission is 
 
 1 A'f ' Jackson v. Gager, 5 Cowen 383; 450; Bowen v. Cooper (Pa.), 7 Watts 311; 
 
 Copeiand v. Wading Riv. Res. Co., 105 Davis v. Harvard (Pa.), 15 S. & R. 162; 
 
 Mass. 397; Smith v. Bullock, 16 Vt. 592, Snodgrass v. Smith, 13 Ind. 393. 
 
 663; Ryder v. Dodge. 14 Wk. Dig. (N. 2 Koon v. Hollingsworth, 97 111. 52. 
 
 Y.) 84; French v. Richardson, 5 Cush. * i Amer. & Eng. Ency. Law 675. 
 
473- OPERATIONS PRELIMINARY TO CONSTRUCTION. $22 
 
 general, he is sole judge of law and facts, and his decision will not be set aside 
 because he has made a mistake as to the law or facts. Frequently submis- 
 sions are restricted to matters of fact only, which gives the court liberty to 
 review or decide as to matters of law. 
 
 The surveyor having ascertained the facts of the case, which would 
 ordinarily be found by a jury, reports them to the court, who upon those 
 facts decides the question as to the law and the rights of the parties to the 
 controversy. 
 
 If a surveyor shows in his award an intention to decide the question 
 according to law, for example by giving reasons for his award, and is mis- 
 taken as to the law, then the award may be set aside. An agreement between 
 contiguous owners to employ a surveyor to establish a boundary-line does not 
 estop either from showing a mistake in line as run. l 
 
 A mistake of facts may render an award void when the mistake is of such 
 a nature as to show that the award is not the result of the true judgment of 
 the arbitrator. 2 
 
 473. Mistakes of Surveyor as an Arbitrator. It must be shown that the 
 mistake has misled or deceived the surveyor, so that he has not exercised his 
 deliberate and fair judgment : some mistake as to facts inadvertently assumed 
 or believed which can be shown to have been contrary to what his judgment 
 was based upon. Good illustrations are the use of false measures : as a tape 
 or chain that is too long or too short, believing them to be correct; the use 
 of a compass to ascertain bearings, when it is afterwards discovered that by 
 accident or fraud the movement of the needle was restrained or disturbed, this 
 being wholly unknown to the surveyor. It must be a pure mistake by which 
 his judgment, as well as the needle, has been swerved from the true direction 
 which it would have taken had it followed the true law understood to govern 
 it. 
 
 The mistake must be of a fact upon which the judgment of the surveyor 
 has not passed as a part of his judicial investigation. It must be of such a 
 nature and so proved as to lead to a reasonable belief that he was misled and 
 deceived by it, and that if he had known the truth he would have come to a 
 different result. Then and only then will a court set aside his. award. If, 
 however, the mistake was due to some unsound or erroneous theory of 
 magnetism adopted and applied by him in regard to the actual variation of 
 the needle, leading to the same errors as before, it would not be such a mis- 
 take as would justify a court in setting aside the award; for it would be an 
 appeal from the surveyor's decision, where he had exercised his judgment. 
 
 Another instance suggested is one of mathematical computations. If the 
 surveyor has used logarithms, believing them to be correct, which are after- 
 wards shown to be erroneous, it would be a mistake by which he was misled, 
 
 1 Watrous v. Morrison (Fla.), 14 So. 2 1 Amer. & Eng. Ency. Law 709. 
 
 Rep. 805. 
 
BOUNDARIES DETERMINED BY ARBITRATION. 476. 
 
 his judgment not being fully exercised; but if the surveyor has purposely and 
 deliberately adopted some process of mathematical reasoning or some method 
 of calculation which he believed to be correct, his award cannot be impugned 
 by the testimony of other mathematicians, tending to show that it was 
 erroneous. 1 It is presumed that it was on account of the surveyor's learning, 
 views, and judgment that he was selected by the parties to decide this ques- 
 tion between them. His award cannot, therefore, be assailed upon points 
 where this judgment and understanding have been exercised. 2 
 
 Mistakes in charging interest, and. errors in computations, which may be 
 corrected and made certain by mathematical calculations, will not avoid an 
 award. 3 
 
 474. Arbitrator must Not Exceed his Powers. 11 a surveyor exceeds the 
 powers given him by the submission, he may thereby render his award void. 4 
 The fact that he has exceeded his power as regards part of the award does 
 not vitiate the remainder of it. 5 It may be valid as to the matters submitted, 
 and void as to matters decided upon but which were not embraced in the 
 submission. 6 
 
 The award must decide all the questions contained in the submission, for 
 material omissions may render it void. 5 To be conclusive it must contain in 
 express terms a distinct determination of the exact points submitted. 7 The 
 surveyor's report or award should be in such language as to show the parties 
 that the matters submitted had been considered and decided by him. 8 
 
 475. Submission to Several Arbitrators. If there are several persons to 
 whom the question is referred, the agreement of all is necessary to an award, 
 unless it is expressly agreed that a less number may make it. 9 Unless so 
 stipulated, an award signed by three of five referees will not settle the question 
 nor conclude the parties. 
 
 476. Arbitrators may Not Delegate their Duties and Powers. Arbi- 
 trators (surveyors) cannpt delegate their duties and powers or appoint a sub- 
 stitute for an absent member. Where provisions are made in their submission 
 for the appointment of a substitute, and where " another or others are to be 
 chosen in the place of those unable or unwilling to act," the right to choose 
 substitutes is in the parties and not in the other arbitrators. The arbitrators 
 may not delegate their powers to each other. The decision of a point of 
 law arising out of the dispute may not be decided by one of their number 
 who is a lawyer. 10 They cannot delegate their powers to the court which 
 appointed them, or provide for a further settlement by some other tribunal ; 
 
 1 Opinion of Chief Justice Shaw in 5 Jackson & Co. z>. Ambler, 14 Johns. 
 Boston Water-power Co. v. Gray, 6 Met. 96 [1817]. 
 
 169 [1843]. 6 Bogan v. Daughdrill, 51 Ala. 312. 
 
 2 See Wait's Engin. & Arch. Jurisp., 7 Walker v. Simpson (Me.), 13 Atl.Rep. 
 429-438. 580 [1888]. 
 
 'Gardner v. Masters (N. C.), 3 Jones 8 Walker v. Simpson, supra. 
 
 Eq. 462; Clement v. Foster, 69 Me. 318. 9 Oakley v. Anderson, 93 N. C. 108. 
 
 *l Amer. & Eng. Ency. Law 675, 676. 10 Little v. Newton, 9 Dowl. 437. 
 
477- OPERATIONS PRELIMINARY TO CONSTRUCTION. 324 
 
 or make their award on the decision of an umpire called in to decide, without 
 exercising their own judgment. 1 They must decide according to their own 
 convictions and judgments to render their award valid. 
 
 477. Ministerial Duties of Arbitrators may be Delegated. Mere minis- 
 terial acts may be delegated, such as holding one end of a chain in measuring 
 distances, reading angles and bearings, acts which the inconvenience and 
 customs of surveying would render impracticable or impossible for the 
 surveyor to undertake himself. a What the parties seek in referring the dispute 
 to arbitration is the surveyor's personal judgment, discretion, and ability, and 
 the exercise of these they can demand. Any acts that are purely ministerial 
 and do not require the surveyor's personal skill, integrity, and judgment may 
 be delegated. 
 
 Technically this would confine the operations of surveying that could be 
 delegated to a very small compass. The simple reading of a tape or of an 
 angle is an act requiring skill and experience, and there is little doubt but 
 that the parties can demand with some justice that these acts be at least under 
 the immediate direction and supervision of the arbitrator if he be a surveyor. 
 The apparent intention of the parties as shown by their submission and the 
 attendant circumstances would have much weight in determining to what 
 extent the surveyor might delegate his duties and powers. Where arbitrators 
 are selected with special reference to their skill, knowledge, and experience, as 
 a surveyor is, he might reasonably be expected to conduct the survey. The 
 extent and magnitude of the survey, the time given for the award, and other 
 similar circumstances may show that no such personal conduct of the work 
 was expected by the parties, but that it was to be accomplished by assistants. 3 
 Custom may authorize the delegation of certain acts. 4 The methods and 
 customs generally employed in surveying would permit a surveyor's assistants 
 to do the chaining or measuring, and frequently all of the field operations. 
 The extent of the surveyor's business, his usual practice in similar cases, the 
 number of assistants employed by him, and similar facts, if known to the 
 parties, would bear upon the case as evidence of the parties' intentions and of 
 the custom. 5 
 
 Though an arbitrator may not delegate his powers and duties, he may call 
 in and consult accountants, appraisers, lawyers, experts, and other surveyors, 
 but may not leave the decision to them. He may use their opinions as a basis 
 for his own decision, when satisfied of their accuracy. He may employ legal 
 counsel to assist him in framing the award, even the counsel of one of the 
 parties. 6 
 
 *i Amer. & Eng. Ency. Law 678. Y. 117; Darling v. Stanwood, 14 Allen 
 
 2 Thorp v. Cole, a C. M. & R. 367; 504. 
 
 Harvey v. Shelton, 7 Beav. 455. 5 Herrick v. Belknap, 27 Vt. 673 
 
 8 Palmer v. Clark, 106 Mass. 373. [1854]. 
 
 * Bodine v. Exch. Fire Ins. Co., 51 N. 6 i Amer. & Eng. Ency. Law 678. 
 
3 2 5 BOUNDARIES DETERMINED BY ARBITRATION. 479' 
 
 478. Powers of Surveyors as Arbitrators to Summon Witnesses and 
 Conduct Investigation, Arbitrators have no power by common law to 
 summon witnesses or administer oaths. It is, however, frequently given to 
 them by statute in different states. When there is no statute bestowing such 
 power, they must call to their assistance some officer who has the power, if 
 the parties desire the testimony to be under oath. Where power is given to 
 compel the attendance of witnesses they are protected from arrest, and the 
 parties and their counsel as well. In conducting a case the arbitrator is sole 
 judge of all questions ordinarily within the power of a court. He is not 
 bound by rules of law or of custom. He may adjourn, recall, and continue 
 the case as he sees fit. He may reopen a case to receive new evidence even 
 after he has prepared his award, and at any time before delivering it, or he 
 may refuse to reopen it, according to his discretion. If he is not an officer 
 of a court, or deciding a question referred to by the court, he may make his 
 own rules as to witnesses and evidence. He may receive evidence that a court 
 would not admit, and permit witnesses to testify who are legally incompetent. 
 Though these arbitrary powers are conceded to arbitrators, it is by no means 
 recommended that they be exercised. They may be evidence of fraud and 
 oppression, which will be fatal to the award rendered. 1 
 
 The arbitrator must hear all the evidence, but he may limit or not, in 
 his discretion, the number of witnesses and the quantity of evidence upon 
 matters which have been particularly submitted to his judgment and in which 
 he has special skill and knowledge. It is within his discretion whether or 
 not he will comply with the request of one of the parties to go and view 
 premises with reference to claims of a builder for work done. 2 - 
 
 In the absence of any arrangement in the submission the arbitrator may 
 name the time and place of hearing, he may postpone the appointment or 
 revoke it. If one party absents himself and the arbiter has reason to believe 
 the absence is intentional and intended to defeat the object of the reference 
 and to prevent justice, he may give that party notice of his intention to 
 proceed with the case at a specified time and place, ex parte, or when either 
 party has failed to appear and has not given reasonable excuse. An arbitrator 
 may properly visit a sick or infirm person at that person's own residence to 
 take testimony. 
 
 479. Arbitrators must Receive Evidence. Under a submission to arbi- 
 trators by which they are to settle the boundary-lines and all matters of differ- 
 ence in relation thereto, a refusal by the arbitrators to receive and consider 
 certain deeds and plats offered for the purpose of showing the lines of one of 
 the parties is sufficient reason for setting aside the award; 3 but not on the 
 ground that the arbitrators refused to hear pertinent testimony, when the party 
 
 1 i Amer. & Eng. Ency. Law 679, 680. 'Hurdle v. Stallings (N. C.), 13 S. E- 
 
 2 Wait's Engin. & Arch. Jurisp., Rep. 720 [1891]. 
 527-532; i Amer. & Eng. Ency. Law 682. 
 
480. OPERATIONS PRELIMINARY TO CONSTRUCTION. 326 
 
 objecting to the award only announced his willingness to introduce testimony 
 without actually offering any. 1 
 
 480, Surveyors as Arbitrators must Act Together, If there are more 
 than one arbitrator, they must all act together; the absence of one, or his 
 refusal to act, puts a stop to proceedings. The disputants are entitled to the 
 exercise of the judgment and discretion and to the benefit of the views, 
 arguments, and influence of each one of the persons whom they have chosen 
 to judge for them; and they are entitled to these not only in the award, but 
 at every stage of the arbitration. This is so even where the submission does 
 empower a majority to decide. This principle is strictly applied. It was 
 applied to a case where an award was determined upon by all together, drawn 
 up by a counselor, and afterwards carried around to each separately for 
 execution. An award by three arbitrators, signed by two of them in each 
 other's presence, and by the third in the presence of one or the other at 
 different times and places, was set aside. All must act together throughout 
 the deliberations which lead to the award, and all must together execute the 
 award at the same time and place and in the presence of each other. a 
 
 481, Notice to Parties of Hearing. The parties must be heard in the 
 presence of each other. At the same time that the surveyor makes the survey 
 it is customary to notify the parties, that they may be present. It is sub- 
 mitted that this latter courtesy to the parties is not necessary, nor even 
 advisable, if the surveyor can make the survey from the deeds alone without 
 the parties' assistance. They are generally a great annoyance, constantly 
 offering assistance, suggestions, and objections, all of which delay the work. 
 Not infrequently their presence renews old quarrels between the parties, 
 which increases the animosity and makes the question more difficult of an 
 amicable settlement. Surveyors are too familiar with these scenes to require 
 a detailed description. 
 
 Notice need be given only when evidence is to be received; and if the sur- 
 veyors or arbitrators can complete their survey without the presence of either 
 party or of parties interested, it is recommended that it be so completed. If 
 either party is to be present, as in cases where the boundary is near or in view 
 of the residence of either adjoining owner, it is deemed better to notify both 
 so that they may be present. If they are not notified, and one should be 
 present and inquiries should be made of persons present, it might prove fatal 
 to the award. 3 Where no evidence is received, no notice need be given to 
 the parties, as, for instance, when the arbitrators meet for the purpose of con- 
 sultation and to draft and sign the award. 
 
 482, Compensation of Surveyors as Arbitrators, An arbitrator is 
 entitled to pay for every day he is necessarily employed, including the delib- 
 
 1 Stemmer v. Scottish Union & Na- 2 i Amer. & Eng. Ency. Law 684. 
 
 tional Ins. Co. (Or.), 53 Pac. Rep. 498 8 i Amer. & Eng. Ency. Law 686. 
 
 [1898]. 
 
327 BO UND A RIES D E TERM1NED BY A RBITRA TION. 485. 
 
 eration; and his compensation will not be defeated by reason of failure to 
 render all the services expected of Him. He is entitled to reasonable com- 
 pensation for all services actually rendered or expenses incurred; even if the 
 submission does not provide for it, and may award fees to himself. He has 
 a lien on the award for the amount of his fees, and may retain it until they 
 are paid. 1 Each party is liable to him for the full amount. a It seems that 
 when there are several arbitrators each must sue for the compensation to 
 which he is entitled. 3 
 
 483. Surveyor's Powers are at an End when Award is Made, An 
 arbitrator's (surveyor's) duties and powers end with the making and delivery 
 of the award according to the terms of the submission. He may not after 
 rendering the award review his decision, exercise afresh judgment on the case, 
 or alter the award in any particular. The boundary once determined and 
 located by the surveyor cannot be changed subsequently. If he attempts an 
 alteration it is without effect, and the original award will stand. His powers 
 are so entirely at an end with the execution and delivery of the award that he 
 cannot even correct a manifest error in the calculation of figures, or in mis- 
 placed words or names.* The award stands as executed and delivered even 
 in the face of apparent mistakes. 4 
 
 484. Form of Award, An award to be valid requires no particular form, 
 but must express an actual decision, something more than mere propositions 
 and suggestions. The award should decide the question at issue and decree 
 the remedy. It must be final and certain, and if expressed in such language 
 as laymen acquainted with the subject can understand, technical precision 
 and certainty are not necessary. 
 
 485. The Award must be Certain and Definite. Awards concerning real 
 estate or boundaries of land are sufficiently certain if they can be located so 
 as to give possession of the premises, and to designate the limits by metes and 
 bounds. Any description sufficient as a conveyance should answer in an 
 award, f An award is certain if it gives directions so that any competent 
 surveyor can find the corners and lines by following those directions. 5 If the 
 terminal points of a disputed line are fixed with accuracy, and the course and 
 distances given, it is not uncertain. 6 An award of three-quarters of the whole 
 section taken from the upper part of said land, 7 or "up to the original claim 
 line, if the line can be ascertained," or "the north line, so called, between A 
 and B" were all held sufficiently certain 8 if they could be located by com- 
 
 1 Clement v. Comstock, 2 Mich. 359. 246; Crawford v. Orr, 84 N. C. 246. 
 
 2 Young v. Starkey, i Cal. 426. 6 Crawford v. Orr, 84 N. C. 246. 
 
 3 See Wait's Engin. & Arch. Jurisp., 7 Duncan v. Duncan, i Ired. (N. C.) 
 533- 466. 
 
 4 1 Amer. & Eng. Ency. Law 689. 8 Caldwell v. Dickinson, 13 Gray 
 
 5 Rogers v. Carrothers, 26 W. Va. 238, (Mass.) 365. 
 
 * See Sees. 467, 473, supra. \ See Sees. 541-559, infra. 
 
\ 
 I 486. OPERATIONS PRELIMINARY TO CONSTRUCTION. 328 
 
 petent surveyors. 1 An award was held to be valid that provided that a subse- 
 quent survey should fix the boundary-line in dispute. 2 The award may refer 
 to field-books, maps, and documents, if sufficiently described and accessible 
 to the parties. 3 
 
 If the award fail to disclose where the boundaries were located by the 
 arbitrators, it is not sufficient to show an agreed boundary. 4 An award 
 stating that the arbitrators did run " the following described line as the 
 dividing-line and do hereby establish the same as the true dividing-line," 
 giving a description of the line, is void where it appears from statements by 
 the arbitrators while running the line that they did not intend to follow the 
 terms of the submission to run the dividing-line between the lands of the 
 parties, but a proposed line. 5 So is a boundary-line uncertain when fixed 
 from one known monument to another by reference to land of one of the 
 parties, 6 or when one of the monuments named in the award is by parol 
 -evidence proved not to exist. 7 But an award ordering a conveyance of real 
 estate up to the original claim-line is not void for uncertainty, as such a line 
 may be ascertained. 8 
 
 486, The Award must be Possible. The award must not require the 
 doing of something that is illegal or impossible in itself; for if it contains 
 such a decree, it will be void for so much at least. Thus a decree in an 
 .award will be void if it require one to do a thing in the past, or to turn the 
 course of a river. The impossibility must be apparent upon the face of the 
 award. To order a person to pay a sum greater than what he may possess 
 is not an impossibility that will avoid the award. 9 
 
 1 But see Clark v. Burt, 4 Cush.(Mass.) 5 Walker v. Simpson (Me.), isAtl. Rep. 
 396; Morse on Arbitration 428; Giddings 580 [1888]. 
 
 v. Hadaway, 28 Vt. 342; 2 Amer. & 6 Clark v. Burt, 4 Cush. (Mass.) 396. 
 
 Eng. Ency. Law (2d ed.) 761. 7 Giddings v. Haddaway, 28 Vt. 342. 
 
 2 2 Hard. (Ky.) 318. 8 Williams v. Warren, 21 111. 541. 
 
 3 Darge v. Haricon I. Mfg. Co., 22 9 Russell on Arbitration 305; Young v. 
 Wis. 691; Jackson v. Ambler, 14 Johns. Renbin, I Dall. (U. S.) 119; Yeamans v. 
 <N. Y.) 96. Yeamans, 99 Mass. 585; Maybin v. Con- 
 
 4 Hayden v. Brown (Ore.), 53 Pac. Rep. Ion, 4 Dall. (U. S.) 298; 2 Amer. & Eng. 
 490 [1898]. Ency. Law (2d ed.) 772. 
 
CHAPTER XXVII. 
 BOUNDARIES ESTABLISHED BY AGREEMENT OR ACQUIESCENCE. 
 
 491. Settlement of Controversies is Encouraged by the Courts. It is a 
 
 policy of the courts and of the law, and presumably of .the legal profession, 
 to settle disputes by amicable adjustments, and to do all within their power 
 to quiet titles. The exclusion of evidence of parties offering to settle before 
 or after a suit is brought, the passing of statutes of limitations and of frauds, 
 both show this effort on the part of the law to quiet titles and make secure 
 the rights of citizens. Likewise it is the policy of the courts to encourage 
 parties themselves to settle their disputes as to boundaries, and to adjust 
 them between themselves; and when this has been done and the parties have 
 agreed to a certain location of their boundaries, they are so bound, and 
 courts will not relieve them from their agreement, even though they do not 
 conform to the description in the deed, and include more or less land than is 
 mentioned in the deed. 1 Under certain conditions it is not necessary even 
 that there be a covenant or agreement, but mere acquiescence is sufficient to 
 establish the boundary conclusively and finally. 2 
 
 492. Determination of Boundaries by Mutual Consent. -Location of the 
 boundary by the grantor who made the survey and marked it by stakes, when 
 coupled with evidence of an acceptance by the grantee of such location, by 
 setting his fence by the stakes, is competent evidence of a location by mutual 
 consent, which, when once made, will be conclusive upon both parties. 3 
 
 By agreement landowners may establish a final 5 and decisive boundary 
 without reference to the line of the government survey. 4 Where parties 
 acquiesce for the -statutory period in a line between two quarter sections 
 owned by them respectively, though the line may vary from the government 
 survey, it becomes the boundary-line between the quarters. 5 
 
 A boundary-line supposed to be the true boundary, and long acquiesced 
 
 1 Emery v. Fowler, 38 Me. 99; Culbert- cinnati (Iowa) 54 N. W. Rep. 206. 
 
 son v. Duncan (Pa.), 13 All. Rep. 966 *Cox v. Daugherty (Ark.), 36 S. W. 
 
 [1888]; Kellogg z/. Smith (Mass.), 7 Cush. Rep. 184. 
 
 375- 5 Husted v. Willoughby (Mich.), 75 N. 
 
 2 Miles t/. Barrows, 122 Mass. 579. W. Rep. 279 [1898]; Stark v. Homuth 
 
 3 Jackson v. Perrine, 35 N. J. Law 137; (Tex.), 45 S. W. Rep. 761 [1898]. But see 
 New York & T. Land Co. v. Gardner Ward v. Ihler (Mo.), 34 S. W. Rep. 251. 
 (Tex.), 25 S. W. Rep. 737; Root v. Cin- 
 
 329 
 
493- OPERATIONS PRELIMINARY TO CONSTRUCTION. 330 
 
 in as such, affords better evidence of the location of the true line than a 
 survey made after the original monuments have disappeared. l 
 
 Where landowners agree to select men to run a dividing-line, and, having 
 run the line from one terminal point to the other, the men rerun and retrace 
 it to the beginning point, the retraced line forms a substantial part of the 
 agreement and cannot be dispensed with except by consent of the owners.'' 2 
 
 Long practical acquiescence of the parties concerned in a supposed 
 boundary-line should be regarded as such an agreement between them as to 
 be conclusive even if the line were originally located erroneously. 3 
 
 493. Boundaries Designated by Grantor at Time of Transfer, When a 
 person jells part of a tract of land by general description, and himself subse- 
 quently fixes the corners of lines or goes upon the land with the grantee and 
 designates or points. out the monuments or lines of fences which bound it, 
 and permits the grantee to make improvements with reference to lines thus 
 fixed or designated, he will be bound by such boundaries. 4 A statement by 
 an owner to the purchaser of an adjoining tract that the boundary-line is at 
 a specified place does not of itself constitute a binding agreement that the 
 line shall be there, where the one making such statement was mistaken as to 
 its location. 5 
 
 Where a dividing-line has been established before purchases are made of 
 land on each side of it, and the deeds have been made, and are known by the 
 parties to have been made, with reference to that line, they, and all the persons 
 claiming through them, are bound by it. 6 Where a boundary-line was fixed 
 as the utmost extent of a designated piece of land, and the question whether 
 or not it was bounded by high- or low-water mark depended on the date of 
 that conveyance, which was not definitely established, it was held that the 
 boundary fixed by general repute at high-water mark, and which has been 
 recognized for many years as the true line, will be adopted by the courts. 7 
 
 Where a certain line was pointed out to a purchaser by the grantor as the 
 boundary-line, the fact that an adjoining landowner admitted such line to be 
 the true boundary does not estop him to deny its location, the purchaser not 
 having bought on his representation. 8 
 
 Where, in a contract for the purchase of a piece of land enclosed by a 
 fence which extended beyond the southern line and enclosed a strip of one 
 and a half acres, belonging to a railroad company, on which were trees and 
 through which was the only passage from the dwelling to the public road, and 
 
 1 Hoffman v. City of Port Huron (Mich.), Beckman v. Davidson (Mass.), 39 N. E. 
 60 N. W. Rep. 831. Rep. 38. 
 
 2 Wheeler v. State (Ala.), 19 So. Rep. , 5 Davidson v. Pickard (Tex.), 37 S. W. 
 993- Rep. 374. 
 
 3 Smith v. Hamilton, 20 Mich. 433; 6 Briscoe v. Puckett (Tex.), 12 S. W. 
 Joyce v. Williams, 26 Mich. 332, cases Rep. 978. 
 
 cited in foot-note to Stoddard' s ed. 7 Forest R. Lead Co. v. Salem (Mass. ) r 
 
 * Gallagher v. Riley (Tenn.), 35 S. W. 42 N. E. Rep. 802. 
 
 Rep. 451; Scott v. Means & Russell Iron 8 Davidson v. Pickard (Tex.), 37 S. W. 
 
 Co. (Ky.), 19 S. W. Rep. 189. See also Rep. 374. 
 
33 l BOUNDARIES BY AGREEMENT AND ACQUIESCENCE. 494- 
 
 no information was given as to the location of the boundary-lines, a court 
 will not decree a specific performance of the contract of purchase on proof 
 that the defendant was mistaken as to a material fact by the omission of the 
 plaintiff to point out the trees, and that this was so whether the omission was 
 intentional or otherwise. l 
 
 Where after the execution of a deed, a controversy arises as to which 
 one of two branches is meant by a clause in the deed which states " thence 
 with that line to a stake on the west bank of the branch," though there be 
 evidence that the parties agreed by parol where the true boundary ran, it is 
 proper for the court to refuse to instruct the jury that by such verbal agree- 
 ment the parties could alter the boundaries as fixed in the deed, and would 
 be estopped from disputing the new location so agreed upon. 2 
 
 494. Surveyors may Not Change Boundaries that Parties have Them- 
 selves Fixed. Surveyors are often called upon to make surveys and determine 
 boundary-lines that have already been irrevocably settled- by the parties them- 
 selves. It is a waste of time and patronage for a surveyor to undertake such 
 a survey, when he knows, or should know, that it cannot avail either party. 
 A few pointed inquiries by the surveyor, when called upon to determine a 
 boundary-line, will reveal the true state of affairs; and good sound advice to 
 the disputing parties will, if they profit by it, save them much trouble and 
 expense. A surveyor should know when he is working to some purpose and 
 when it is useless to undertake a task, or when, if undertaken, his determina- 
 tion may be overruled and declared unavailing by a court of law. Knowing 
 that his services are in vain and to no purpose, can he honestly render them 
 without advising his patrons of the fact ? By such a course he may sacrifice 
 a professional engagement to another who is not so conscientious or who is 
 less enlightened, but he will not be the loser in the end. A conscientious, 
 well-informed engineer or lawyer will never surfer by rendering sound advice 
 to his client, though an unscrupulous and ignorant professional man may 
 profit by making the most out of alT who come to him; and a good engineer, 
 who knows that a boundary is already settled in law, will not employ his time 
 in attempting to establish a boundary or survey which the courts will not 
 sustain. 
 
 The object of a survey is frequently to establish a boundary between 
 coterminous owners, but the boundary may be definitely and conclusively 
 determined by the adjoining landowners themselves, without assistance of 
 surveyors and without recourse to the courts. A simple agreement upon any 
 reasonable line as the boundary-line, followed by a possession and an occupa- 
 tion according to that line, may preclude either party from ever afterwards 
 disputing that the line agreed upon is the true boundary-line. Courts have 
 repeatedly refused to change such a line, and surveyors cannot make it other- 
 
 1 Campbell v. Durham (Ala.), 5 So. Rep. 2 Buckner v. Anderson (N. C.), 16 S. E. 
 
 507 [1889]. Rep. 424. 
 
495- OPERATIONS PRELIMINARY TO CONSTRUCTION. 332 
 
 wise. The parties themselves could perhaps mutually agree to rescind the 
 agreement and submit it to a surveyor or to the court, but one of them could 
 not. The agreement need not be under seal or in writing even ; l but a 
 simple parol agreement accompanied by possession thereto will suffice. Such 
 agreements are not, therefore, within the statute of frauds, 2 because they are 
 not considered as extending to titles. They do not operate as conveyances 
 so as to pass title from one to another, but proceed upon the theory that the 
 true line of separation is in dispute and to some extent unknown, and in such 
 case the agreement serves to fix the line to which the title of each extends. 3 
 It is not necessary even that there should have been a previous dispute about 
 the line to give validity to such an agreement. 4 
 
 Where title by adverse possession is complete, it is not affected by a 
 parol promise of the person holding the title to join with an adjacent owner 
 in a survey to determine the true line between their respective lands. 5 
 
 495, The Agreement and Acquiescence does Not Effect a Conveyance.* 
 Land cannot be granted except by written instrument duly signed, sealed, 
 acknowledged, and recorded; and therefore tenants-in-common of an estate 
 cannot terminate the unity of their possession, or create a right in the nature 
 of an easement, by a parol agreement for the partition of lands. 
 
 It seems a parol partition may be made by such co-owners, provided each 
 party takes and retains exclusive possession of the portion allotted to him 
 for the period required by the statute of limitations to give title to adverse 
 possession. 6 f However, this device cannot be resorted to to convey land, and 
 thus avoid the requirements of the statute to convey under seal and record 
 the conveyance; and if the true line is known, then any change in the 
 boundary-line which requires the transfer of any portion of the land on one 
 side of the line from the one to the other must be in writing and according 
 to the manner prescribed by law, to be valid. 7 
 
 Adjoining owners need not have title in fee-simple to become a party to 
 an agreement as to boundaries, but possession and assertion of ownership 
 under a contract to purchase are sufficient to constitute the occupant an 
 adjoining owner for the purpose, and to enable him to make a valid agreement 
 for the establishment of division-lines. 8 The contract is founded upon 
 mutual promises and concessions, and will be upheld the same as any con- 
 
 1 White -v. Spreckles, 75 Cal. 610 [1888]; 604 [1888]; Silverer v. Hansen (Cal.), 20 
 Movie v. Connolly, 50 Cal. 295 [1875]. Pac. Rep. 136 [1889]. 
 
 2 Ferguson v. Crick (Ky.), 23 S. W. 5 Lamoreaux v. Creveling (Mich.), 61 
 Rep. 668; semblt, Brown v. Bailey (Pa.), N. W. Rep. 783. 
 
 28 Atl. Rep. 245. 6 Taylor v. Millard. 118 N. Y. 244 
 
 3 Whiter. Spreckles, 75 Cal. 610 [1888]. [1890]. 
 
 See Helm v. Wilson, 76 Cal. 476; Gwynn 7 Jenkins v. Trager, 40 Fed. Rep. 726. 
 
 v. Swartz, 40 Alb. L. J. 374 [1889], and 8 Silverer v. Hansen (Cal.), 20 Pac. 
 
 cases cited. Rep. 136 [1889]. 
 *Helm v. Wilson (Cal.), 18 Pac. Rep. 
 
 *See Sees. 41-50, supra. \ But see Sec. 516, infra. 
 
333 BOUNDARIES BY AGREEMENT AND ACQUIESCENCE. 49/. 
 
 tract. 1 Not being in writing it cannot convey any direct interest or title in 
 land, nor can title to land be established by parol evidence of a verbal agree- 
 ment establishing boundaries between coterminous owners. 2 
 
 Only those landowners (their heirs, successors, or assigns) who are parties- 
 to the agreement are bound by the agreement, 3 and it is incompetent to 
 prove that an adjoining landowner who claims under the same grant does not 
 elaim beyond the line in controversy, if none of the parties claim through him 
 and he is not interested in the suit. 4 
 
 496, Parol Agreements to Settle Disputed Boundaries, It is quite well 
 settled by decisions that where the owners of adjoining lots of land agree upon 
 and establish a division-line between them by express parol agreement, and. 
 their agreement is immediately executed, and is accompanied by actual pos- 
 session according to such line, the agreement is binding and conclusive, and 
 
 >such division-line may not be disturbed though it may afterwards appear that 
 it is not the true line according to the paper title. 5 * 
 
 497. Proof of Agreement and Acquiescence. Some cases hold that an 
 agreement must be shown by a preponderance of evidence, and that the fact 
 that the land was occupied according to the agreement by acquiescence 
 merely is not sufficient to establish it. 6 If no express agreement is shown, 
 long acquiescence by one proprietor in the line assumed by the other is 
 evidence from which an agreement may be inferred. 7 Acquiescence for ten 
 years by an adjoining proprietor in a boundary established by the other is- 
 evidence, at least, of a parol argeement so fixing the boundary-line. 8 
 
 Whether or not a person who stands by and sees a division-line rum 
 between his land and the land of another without making any objection; 
 thereby assents to it, 9 or whether or not the boundary-line was established 
 by acquiescence, is sometimes held a question for the jury. 10 
 
 A Missouri case holds that direct evidence of the agreement is not neces- 
 sary, but that it may be shown by facts and circumstances, including long" 
 acquiescence and recognition. n 
 
 1 Finley v. Funk (Kan.), 12 Pac. Rep. Hildebrandt (Mich.), 68 N. W. Rep. 145. 
 15 [1887]. 7 Kellogg v. Smith, 7 Gush. 375; Jones 
 
 2 Presnell v. Garrison (N. C.), 29 S. E. v. Smith, 64 N. Y. 180 [1876]. But see- 
 Rep. 839 [1898]. Heinz v. Cramer (Iowa), 51 N. W. Rep. 
 
 3 Donaldson v. Rail (Tex.), 37 S. W. 173, which held that a mere pointing out 
 Rep. 16. of boundaries was not sufficient. And see 
 
 4 Bailey v. Baker (Tex.), 42 S. W. Rep. Coleman v. Drane (Mo.), 22 S. W. Rep. 
 124. 801. 
 
 5 Voight v. Raby (Va.), 20 S. E. Rep. 8 Gwynn v. Schwartz, 40 Alb. L. J. 374 
 
 824; Kellogg v. Smith, 7 Gush. (Mass.) [1889]. 
 375. 9 Wheeler v. State (Ala.), 19 So. Rep. 
 
 6 St. Bede College v. Weber, 168 111. 993. 
 
 324; Heinz v. Cramer (Iowa), 51 N. W. 10 Manistee Mfg. Co. v. Cogswell- 
 Rep. 173; Iverson v. Swan (Mass.), 48 (Mich.), 61 N. W. Rep. 884. 
 N. E. Rep. 282; Lecomte v. Toudouze u Ernsting z/.Gleason (Mo. Sup.), 39 S. 
 (Tex.), 17 S. W. Rep. 1047; Horton v. W. Rep. 70. 
 Brown (Ind.), 29 N. E. Rep. 414; Dauer v. 
 
 * See Sec. 492, supra. 
 
49 8 ' OPERATIONS PRELIMINARY TO CONSTRUCTION. 334 
 
 A boundary-line may be established by agreement or by acquiescence in 
 and acceptance and recognition of a line as a boundary. 1 
 
 498. Agreements in Regard to Boundaries Not in Dispute. In some 
 cases it is also held that there must have been a dispute in regard to the line. 2 
 If there has not been sufficient adverse possession (for the full statutory period) 
 to make a title, the decisions depend on the force of the parol agreement and 
 on the occupation of the land according to such agreement. 
 
 An agreement fixing upon a permanent line when both parties are ignorant 
 of the true line, followed by possession in accordance therewith, will bind the 
 parties and persons claiming under them. 3 It has been held not binding on 
 subsequent purchasers if it were an oral agreement and changed the legal 
 construction of the title-deed. 4 When, however, the parties have attempted 
 to survey and mark the true division-line, and in doing so have made a mis- 
 take, there being no dispute in regard to it, neither they nor those claiming 
 under them are stopped from claiming to the true line. 5 The same was held 
 when one of the landowners had built a fence on what he supposed to be the 
 true boundary-line without any agreement. 6 
 
 The acquiescence or admission of the owner of land, made under a mis- 
 take as to his rights, will neither estop nor prejudice him from subsequently 
 enlarging his possession to the limits of his deed, provided no actual adverse 
 possession has intervened to defeat his title. 7 
 
 The rule will not fix the boundary if it afterwards appears that the adjust- 
 ment is not in accordance with the true paper title, where the boundary is 
 clearly located by the deed, and the grantee either through mistake or fraud 
 has not received a conveyance of the full quantity of the land bargained for. 8 
 
 499. Parties and Grantees may be Bound by Agreements. The fact that 
 a description refers to monuments not actually in existence at the time, but 
 to be erected by the parties, does not render the conveyance void if the parties 
 have since been upon the land and deliberately erected the monuments. 
 They will be bound by them as if they had been erected before the deed was 
 made, and it is immaterial that the monuments so erected do give one party 
 
 1 Wardlow v. Harmon (Tex. Civ. 904; Chadwell v. Chadwell (Term.), 23 S. 
 
 App.), 45 S. W. Rep. 828 [1898]. W. Rep. 973; Sherman v. State (Ala.), 
 
 2 Gayhart v. Cornett (Ky.), 42 S. W. 17 So. Rep. 103. 
 
 Rep 730 [1897]; St. Bede College v. 4 Shaffer v. Hahn (N. C.), 15 S. E. 
 
 Weber, supra; sernble, Teass v. St. Albans Rep. 1033.. 
 
 (W. Va.), 17 S. E. Rep. 400. 5 Hatfield v. Workman (W. Va.) 14 S. 
 
 3 Ernsting v. Gleason (Mo.), 39 S. W. E. Rep. 153. But see Lecomte v. Tou- 
 
 Rep. 70, Watrous v. Morrison (Fla), 14 douze (Tex.), 17 S. W. Rep. 1047. 
 
 So. Rep. 805; Voight v. Raby (Va.), 20 6 Iverson v. Swan (Mass.), 48 N. E. 
 
 S. E. Rep. 824; Benson v. Daly (Neb.), Rep. 282; White v. Spreckles, 75 Cal. 
 
 56 N. W. Rep. 788; Sebastian v. Keeton 610 [1888]. 
 
 (Ky.), 29 S. W. Rep. 23; Patten v. Find- 7 White v. Ward (W. Va.), 148. E. Rep. 
 
 ley (Sup.), 18 N. V. Supp. 683; Lecomte 22. 
 
 v. Toudouze (Tex.), 17 S. W. Rep. 1047; 8 Delong v. Baldwin (Mich.), 69 N. W. 
 
 Carstarphen v. Holt (Ga.), 23 S. E. Rep. Rep. 831. 
 
335 BOUNDARIES BY AGREEMENT AND ACQUIESCENCE. 499. 
 
 more than the quantity described in the deed, 1 or do not comport with thi 
 lines specified in the deed. 2 
 
 If a grantor has agreed to a certain fence as the bounding-line, thoug 
 located and built after the conveyance, and he has acquiesced therein, and 
 subsequently transfers his holdings, describing the line as bounded by the 
 land of the adjoining party or by the line bounding his lot, it will confine the 
 transferee and his subsequent grantees to the fence agreed upon and acquiesced 
 in even though it does not conform to the original line as described in the 
 deeds. 3 
 
 This has been held true even when the acquiescence has not been for the 
 prescriptive or statutory period required by law to secure title by adverse 
 possession. 4 
 
 The line so established is not only binding upon the parties alone, but 
 upon their heirs and assigns and all others claiming under them, even though 
 it does not agree exactly with the metes and bounds called for in the deeds. 5 
 
 The dividing-line must have been acquiesced in by the parties with knowl- 
 edge of the facts of its situation and marking; but it need not appear that 
 they knew of the terms, or even existence, of the distribution which first 
 divided their land. 6 In such cases the party is prevented from disputing and 
 denying the boundary-line adopted, under the doctrine of estoppel, which 
 requires that there should have been actual, constructive, or implied knowl- 
 edge on the part of the party estopped, and ignorance of the other acting upon 
 the incorrect settlement, to estop the former from asserting his claim within 
 the period of limitation. 7 It makes no difference that the settlement is in 
 writing if it does not amount to a conveyance. 8 A party may be estopped on 
 the ground that he should have known the correct line. 9 
 
 There is no estoppel unless there has been an actual or implied agree- 
 ment. 10 A mere survey by adjoining owners without any agreement creates 
 no estoppel; n but a survey and marking of lines may estop the party making 
 it. 12 A verbal agreement made with knowledge of the facts and acted upon is 
 sufficient. 13 
 
 In Wisconsin there is no estoppel with regard to boundaries if the true 
 line can be ascertained by the survey. 14 The estoppel as to boundaries where 
 
 kerned v. Merrill, 2 N. H. 197. Miss. 120; Kirchner v. Miller, 39 N. J. 
 
 2 Makepeace v. Bancroft, 12 Mass. 469. Eq. 355; Raynor v. Timerson, 51 Barb. 
 
 3 Knowles v. Toothaker, 58 Me. 172; (N. Y.) 517; Reed v. McCourt, 35 N. Y. 
 
 Anderson v. Jackson (Tex.), 13 S. W. 113; Hass v. Plantz, 56 Wis. 105. 
 
 Rep. 30. 8 Bradbury v. Corry, 59 Me. 494. 
 
 * Emery v. Fowler, 38 Me. 102. 9 Greene v. Smith, 57 Vt. 268;-Louks v. 
 
 5 Culbertson v. Duncan (Pa.), 13 Atl. Kenniston, 50 Vt. 116. 
 
 Rep. 966 [1888]; Sheldon v. Atkinson 10 Chapman v. Crooks, 41 Mich. 595, 
 
 (Kan.), 16 Pac. Rep. 68 [1888]. "Spring v. Hewston, 52 Cal. 442. 
 
 6 Rathbun v. Geer, 64 Conn. 421. 12 Singleton v. Whiteside, 5 Yerg. 
 
 7 Davenport v. Tarpin, 43 Cal. 598; (Tenn.), 36. 
 
 Pitcher v. Dove, 99 Ind 175; Lemmon v. 13 Keer v. Hitt, 75 111. 51. 
 
 Hartrook, 80 Mo. 13; Evans v. Miller, 58 u Hartung v. Witte, 59 Wis. 285. 
 
500. OPERATIONS PRELIMINARY TO CONSTRUCTION. 336 
 
 there has been no conveyance does not operate to preclude a party from 
 claiming under rights subsequently acquired. l 
 
 The estoppel should be pleaded or evidence of the settlement of the 
 boundary between the parties may be refused. 2 In any case, if the estoppel 
 be pleaded, it should be pleaded with certainty, and enough should be given 
 to show clearly the facts upon which the estoppel is to be founded. If there 
 has been no opportunity to plead the facts, they may be available as an 
 estoppel. 3 
 
 500. Acquiescence and Occupation Required for What Period. No 
 particular time appears to have been settled as necessary during which the 
 occupancy, after mutual agreement, should have continued; and the length 
 of time has been different in the different cases. It has been held that the 
 rule may be regarded as well settled, in a number of states at least (Illinois, 
 Michigan, Massachusetts, Maine, New Hampshire), that the period need not 
 be equal to the full period prescribed by the statute of limitations. 4 This rule 
 seems to apply equally to agreements between governments and between indi- 
 viduals. 5 Some periods which have been held sufficient to preclude parties 
 to such agreements are here collected to show the uncertain condition of the 
 law. 
 
 501. Length of Time Required to Occupy and Acquiesce. Parol assent 
 by one of two adjoining owners to the location of a boundary-fence between 
 them, and the actual erection of the fence by the other in accordance with 
 such assent, followed by mutual occupation and acquiescence for a long time, 
 will preclude the parties from denying it to be the true line. 6 What is meant 
 in this case by occupation and acquiescence for a long time is not definitely 
 settled in the decisions. 
 
 A few months was held not sufficient to change the true line, or to pre- 
 clude the assenting party from asserting his rights in accordance with the true 
 line. Such an assent has been declared at most to be but a license, so as to 
 prevent an action of trespass until revoked, which revocation may be made 
 at any time before the period mentioned, as a long time has elapsed. 7 Some- 
 
 1 Donaldson v. Hibner, 55 Mo. 492; Corp., 5 Mete. 478; Moyle v. Connolly, 
 Dillett v. Kemble, 10 C. E. Greene, (N. J.) 50 Cal. 295 [1875] ; Smith v. Hamilton, 20 
 66. Mich. 433 [1870]; Beardsley v. Crane 
 
 2 Knudson v. Omanson (Utah), 37 Pac. (Minn.), 54 N. W. Rep. 740; Benson v. 
 Rep. 250. Daly (Neb.), 56 N. W. Rep. 788; White 
 
 3 Bigelow on Estoppel (6th ed.), 671, v. Peabody (Mich.), 64 N. W. Rep. 41; 
 and cases cited. Lowndes v. Wicks (Conn.), 36 Atl. Rep. 
 
 4 St. Bede Colleges/. Weber, 168 111. 324 1072; Elmore v. Davis (S. C.), 26 S. E. 
 [1897]; McNamara v. Seaton, 32 111. 500 Rep. 680; Tyler's Law of Boundaries 334, 
 [1876]; Yates v. Shaw, 24 111. 367; Bauer 335. 
 
 v. Gottmanhausen, 65 111. 499. But see 5 Jenkins v. Trager, 40 Fed. Rep. 726. 
 
 Carleton v. Reddington, i Fost. 291; 6 Reed v. McCourt. 41 N. Y. 435 
 
 Fahey v. Marsh, 40 Mich. 236 [1879], anci [1869]; Lowndes v. Wicks (Conn.), 36 
 
 many cases cited by counsel; Crowell v. Atl. Rep. 1072. 
 
 Manges, 2 Gilm. 419; Tolman v. Spar- 7 James, J., in Reed v. McCourt, 41 N. 
 
 hawk, 5 Mete. 469; Brewer v. R. R. Y. 435 [1869]. 
 
337 BOUNDARIES BY AGREEMENT AND ACQUIESCENCE. 5OI. 
 
 thing more than a few years' occupation is necessary to confer title and estop 
 the party who has merely assented. l A period of four or five years was held 
 insufficient; 2 as also eight ye'ars, and even eleven years. 8 In New York it 
 was held that scarcely less than twenty years' acquiescence and mutual occu- 
 pation would conclude the parties 4 and prevent their denying it to be the 
 true line. 5 
 
 This it is submitted is good law. A mere acquiescence in a boundary for 
 any length of time less than the full statutory period of limitations should not 
 preclude the owner from asserting the true boundary. 6 The decisions of the 
 New York courts are founded upon the Code of Civil Procedure, 368, which 
 provides that, " In an action to recover real property, . . . the person who 
 establishes a legal title to the premises is presumed to have been possessed 
 thereof within the time required by law, and the occupation of the premises 
 by another person is deemed to have been under and in subordination to the 
 legal title, unless the premises have been held and possessed adversely to the 
 legal title for twenty years before the commencement of the action. ' ' 7 
 
 Without an agreement between the parties there can be no doubt but that 
 the acquiescence and occupation must have been for the full statutory period. 8 
 An instruction " that acquiescence in a line, without an agreement as to its 
 correctness, does not bind a party" unless extending for more than twenty 
 years, is not misleading as tending to tell the jury that parties could not settle 
 a disputed line without an agreement that it was the correct line. 9 
 
 The maintenance by owners of adjoining lands of a line-fence up to which 
 each claims and occupies is a concession by each of the open and adverse 
 possession by the other of that which is on his side of such fence, which, after 
 twenty-one years, will give title. 10 
 
 The agreement and acquiescence should be clearly shown, and it should 
 be executed or concluded. If in an action of ejectment an order be entered 
 by consent that a certain line described is the true line, and that the surveyor 
 should go on the land and establish it, and the order is never carried into 
 
 1 Kipp v. Norton, 12 Wend. 127, and Rep. 831: Nolan v. Harned (N. Y.), 13 
 cases cited; Stuyvesant v, Dunham, 9 111. App. Div. 155. See Butler v. Vicksburg 
 61; Baldwin v. Brown, 16 N. Y. 363. See (Miss.), 17 So. Rep. 605. Accord, Doo- 
 Lowndes v. Wicks (Conn.), 36 Atl. Rep. little v. Bailey (la.), 52 N. W. Rep. 337; 
 1072. Omensetter v. Kemper, 6 Pa. Super. Ct. 
 
 2 Jackson v. Douglass, 8 111. 367. Rep. 309 [1897]; Tritt v. Hoover (Mich.), 
 
 3 Adams v. Haskell, 16 Wend. 285; Reed 74 N. W. Rep. 177 [1898]; Dyer v. El- 
 v. McCourt, 41 N. Y. 435, and cases cited. dridge (Ind.), 36 N. E. Rep. 522. 
 
 4 Reed v. McCourt, 41 N. Y. 435. 7 Clark v. Davis (Super. N. Y.), 19 N. 
 5 Stuyvesant v. Dunham. 9 111. 61; Y. Supp. 191, 28 Abb. N. C. 135; semble, 
 
 Smith v. Bullock, 16 Vt. 592 [1844]. Kennedy v. Erdman (Pa.), 28 Atl. Rep. 
 
 6 Hinckley v. Grouse, 125 N. Y. 730; 643. 
 
 Pearsall v. Westcott, 51 N. Y. Supp. 663 8 Beardsley v. Crane (Minn.), 54 N. W. 
 
 [1898!; Clark v. Davis (Super. Ct.), 19 N. Rep. 740. 
 
 Y. Supp. 191, 28 Abb. N. C. 135; Williams 9 Henderson v. Dennis, 177 111. 547 
 
 v. Schantz (Iowa), 55 N. W. Rep. 202, ten [1898]. 
 
 years; Welton v. Poynter (Wis.), 71 N.W. 10 Reiter v. Mcjunkin (Pa. Sup.), 33 
 
 'Rep. 597; Delong v. Baldwin, 69 N. W. Atl. Rep. 1012. 
 
50C. OPERATIONS PRELIMINARY TO CONSTRUCTION. 338 
 
 effect, and the case is dismissed without any line being established, the parties 
 remaining in possession as they were before, the agreement will be abandoned, 
 and the order will not be conclusive as to the rights of the parties. 1 
 
 If, where the fence is removed from the line claimed by plaintiff and is 
 rebuilt on the boundary-line as claimed by the defendant, the plaintiff stated 
 that he would have a resurvey to determine the boundary, and would not 
 abide by the survey which defendant caused to be made, the plaintiff is not 
 precluded from setting up a claim to the land between the disputed boundary- 
 lines by adverse possession. 2 
 
 502. Period of Occupation and Acquiescence Dependent on Express 
 Agreement. The difference in the lengths of periods of occupation required 
 to establish a boundary is believed to be largely due to the proof on the one 
 hand of an actual agreement, and on the other of mere assent and occupation, 
 with no evidence whatever of an agreement. Greater lengths of time would 
 naturally and reasonably be required to establish an agreement by evidence of 
 occupation than if the agreement was proven independent of the occupation 
 by a written instrument or by witnesses. Therefore a case where direct 
 evidence or proof of assent is furnished would probably require less time to 
 establish a boundary than where there was no agreement or assent proven, 
 and more time than where a contract had been entered into. Such a rule 
 would require three different periods to establish three different cases, with 
 different facts and circumstances. 
 
 This is an unsatisfactory condition of the law and leaves the matter in a 
 very unsettled condition. A New York judge concluded that "The better 
 opinion is that the consideration mentioned in the cases must at least equal 
 the length of time prescribed by the statute of limitations to bar a right of 
 entry." The period as established in the older states is usually twenty or 
 twenty-one years, but it varies in the different states, from only five in Cali- 
 fornia to twenty-one in Pennsylvania. The period is usually the same as is 
 required to acquire title to land, or the right to an easement, by adverse pos- 
 session or by prescription. 
 
 The length of time which must elapse before an agreement fixing a 
 division-line can be inferred from acquiescence alone is something about which 
 there has been much speculation and controversy. No clear and distinct 
 conclusion has been reached, but, as Judge Rhodes of California said in 
 delivering the opinion of the court: " The better opinion is that the consider- 
 able time mentioned in the cases must at least equal the length of time 
 prescribed by the statute of limitations to bar a right of entry" (twenty years 
 usually). 3 
 
 1 Four-mile L. & C. Co. v. Gibson (Ky.), son v. Freer, 17 Johns. 29; McCormick v. 
 49 S. W. Rep. 954 [1899]. Barnum, 10 Wend. 104; Dibbles. Rogers, 
 
 2 Van Der Groef v. Jones (Mich.), 65 13 Wend. 536; Adams v. Rockwell, 16 
 N. W. Rep. 602. Wend. 285; Van Wyck v. Wright, 18 
 
 3 Jackson v. Ogden, 7 Johns. 238; Jack- Wend. 57; Boyd's Lessee v. Graves, 4 
 
339 BOUNDARIES BY AGREEMENT AND ACQUIESCENCE. 5O2. 
 
 A Minnesota case makes one of three alternative conditions essential, 
 viz.: where there is no doubt as to how premises shall be located according 
 to certain and known boundaries described in a deed, in order to establish a 
 practical location, different therefrom,, which shall deprive the party claiming 
 under the deed of his legal rights, there must be a location which has been 
 acquiesced in for sufficient time to bar a right of entry under the statute of 
 limitations; or the erroneous line must have been agreed upon between the 
 parties claiming the land on both sides, and afterwards acquiesced in for a 
 considerable time; or the party whose right is to be barred must have so 
 conducted himself as to be estopped from ascertaining the true line. x 
 
 The decisions do not indicate in what way acquiescence by one adjoining 
 proprietor in a division fixed by another adjoining proprietor is to be proven. 
 It is clear that one mode of acquiescence is by actual occupation and cultiva- 
 tion up to such line so fixed without objection by the other adjoining owner. 
 This is not the only mode by which this acquiescence can be shown. If it 
 were, all these decisions and this controversy would be idle, for the party 
 cultivating up to a line so fixed would acquire this land so claimed and 
 cultivated by adverse possession. This acquiescence in a boundary-line which 
 has been fixed and marked can be proved by any evidence that would satisfy a 
 jury that such a division-line had been accepted by both parties; for example, 
 by the cutting of timber habitually up to such division-line by one party with 
 the knowledge of the other, who, knowing by these acts that the first party 
 claims to this marked line as a division-line, makes no objection to such 
 cutting. 2 
 
 Mere occupancy of the land of another up to a fence which incloses it 
 with the land of the occupant, believing such fence to be on the true 
 boundary-line between the latter and the land of such other, without any 
 claim of ownership up to the fence, or agreement that such fence or line 
 should be the dividing-line, does not constitute adverse possession. 3 
 
 However, when one has held possession of land for over twenty years, 
 claiming up to a certain fence, which was supposed to be on the dividing- 
 line, he acquires title by adverse possession even though he claimed to the 
 fence only because he thought it was the true line. 4 
 
 Proof that the adjoining owners established a dividing-line, as by the 
 building of a wall or fence by both parties, may be good evidence of an agree- 
 ment, and of adverse possession, which would change the rule. 5 
 
 Wheat. 513. And see Jones v. Smith, 64 Rep. 550; Davis v. Caldwell (Ala.), 18 
 
 N. Y. 180 [1876]; Culbertson v. Duncan So. Rep. 103; Greer v. Powell (la.), 56 N. 
 
 (Pa.), 13 All. Rep. 966 [1888], twenty-one W. Rep. 440; Taylor v. Fomby (Ala.), 22 
 
 years ; Walker v. Simpson (Me.), 13 Atl. So. Rep. 910 [1897] ; Rasdell v. Shumway 
 
 Rep. 580 [1888], twenty years. (Kan. App.). 49 Pac. Rep. 631. 
 
 1 Beardsley v. Crane (Minn.), 54 N. W. 4 Battner v. Baker (Mo.), 18 S. W. Rep. 
 Rep. 740. 911; Taylor v. Fomby (Ala.), 22 So Rep. 
 
 2 W. Va. Sup. Ct. App., June 26, 1889; 910 [1897], See Watrous v. Morrison 
 
 Riggs v. Riley (Ind.), 15 N. E. Rep. 253 (Fla ), 14 So. Rep. 805. 
 
 [1888]. 5 Idaho Land Co. v. Parsons (Idaho), 31 
 
 3 Me Williams v. Samuel (Mo.), 27 S. W. Pac. Rep. 791; Pearson v. Dryden (Oreg.), 
 
53- OPERATIONS PRELIMINARY TO CONSTRUCTION. 340 
 
 In conclusion it may be said that it is impossible to state just how many 
 years of acquiescence in a dividing-line and occupation thereto are the least 
 number that will establish that line irrevocably. It is unquestionably 
 decided and settled that acquiescence and occupation for the full period 
 established by the statute of limitations will fix the line, and preclude the 
 owners from ever denying it afterwards. This is established by a long list of 
 cases and has never been doubted. l 
 
 503. Occupation by License is Not Acquiescence or Proof of Agreement. 
 A privilege or license by the grantor of one adjoining owner to the other 
 owner, when applied to on the subject of a division-fence, to "build the 
 fence wherever he desired to build it " is not sufficient to establish the fence 
 as a boundary when it appears by the evidence that the fence was not built 
 on a certain line of stakes that the two owners had always recognized as the 
 true dividing-line, and when it further appears that a surveyor had established 
 the same line of stakes as the true line. It is not waived by a subsequent 
 reference to arbitrators which results in a void award. 2 
 
 However, where adjoining owners have adopted a division-line, and each 
 has taken possession of his respective tract as of right, and one of them subse- 
 quently, claiming another line as correct, brings ejectment for the land 
 included between the two lines, and defendant sets up adverse possession as 
 a defense, it is error to instruct that adverse possession cannot be based on a 
 possession having its inception in license. 3 
 
 504. Acquiescence under a Mistake. If a continuous and uninterrupted 
 possession to the line of a division-fence under claim of ownership has been 
 unintentional or under a mistaken belief that the fence was on the correct 
 line, and without intention of claiming beyond the true line, then it will not 
 give title nor bar the adjoining owner from demanding a correct location of 
 the line. 4 * This principle is further stated in a case which held that " If one 
 holds land up to a certain boundary as the true one, with the understanding, 
 however, that he claims only to the extent of his paper title, he can never 
 acquire any rights further than the line called for in his 'conveyance, no 
 matter how long he may hold to that boundary; but if he claims absolutely 
 and holds adversely to the line against all others, the line becomes so estab- 
 lished after the statutory period of limitations, even though his claims are 
 
 43 Pac. Rep. 166; Whitcomb v. Dutton 2 Walker v. Simpson (Me.), 13 Atl. Rep. 
 
 (Me.), 36 Atl. Rep. 67; Butler v. Drake 580 [1888]. See Bloomington v. B. Cem. 
 
 (Minn.), 64 N. W. Rep. 559; Ramsey v. Ass'n (111.), 18 N. E. Rep. 298 [1889]. 
 
 Ogden (Oreg.), 31 Pac. Rep. 778. But see 3 Pearson v. Dryden(Oreg.), 43 Pac. Rep. 
 
 Kurz v. Miller (Wis.), 62 N. W. Rep. 166; Idaho Ld. Co. v. Parsons (Idaho), 
 
 182. 31 Pac. Rep. 791. 
 
 1 White z/. Spreckles, 75 Cal. 610 [1888]; 4 E. Tenn. I. & C. Co. v. Ferguson 
 
 Sheldon v. Atkinson (Kan ), 16 Pac. Rep. (Tenn.), 35 S. W. Rep. 900; King v. Brig- 
 
 68 [1888]; Burris v. Fitch (Cal.), 18 Pac. ham (Oreg.), 31 Pac. Rep. 601; Skinker 
 
 Rep. 864 [1888], sixteen years', Dale v. v. Hagsma (Mo.), 128. W. Rep. 659. 
 Jackson, 8 N. Y. Supp. 715. 
 
 * See Sec 498, supra. 
 
34 1 BOUNDARIES BY AGREEMENT AND ACQUIESCENCE. 504. 
 
 based upon a mistake touching the survey. " l It was so held when the claim- 
 ant had stated, on several occasions after a:u erroneous survey had been made, 
 that he did not claim more than the numbe.T of acres he had purchased. 2 
 
 Where one of two adjoining landowners places a fence, without opposition 
 from the other, on what is erroneously supposed by both to be the proper 
 boundary-line, the other is not thereafter estopped to set up the error. 3 
 
 If parties agree upon boundary-lines, and buildings or permanent improve- 
 ments are erected to conform to those lines, they may not afterwards be 
 changed to the prejudice and damage of either party. 4 This is under the 
 doctrine of estoppel.* 
 
 1 Mayor's Heirs v. Rice, 57 Mo. 485 (Mo.), 39 S. W. Rep. 454; Rasdell v. 
 
 [1874]. Accord, Smitzgabel v. Worsel- Shumway (Kan.), 51 Pac. Rep. 285 [1897]. 
 dine (Utah), 16 Pac. Rep. 400 [1888]; ^ But see City of Bloomington v. B. Cem. 
 
 Scheible v. Hart (Ky.), 12 S. W. Rep. Ass'n (111.), 18 N. E. Rep. 298 [1889]; 
 
 628. Graza v. Brown (Tex.), n S. W. Rep. 
 
 2 Kahl v. Schmidt (Iowa), 78 N. W. 920; Mayor's Heirs v. Rice, 57 Mo. 485 
 
 Rep. 204 [1899]. L l8 74]j Idaho Ld. Co. v. Parsons (Idaho), 
 
 3 Golterman v. Schiermeier (Mo. Sup.), 31 Pac. Rep 791. 
 28 S. W. Rep. 616; Roecker v. Haperla 
 
 * See Sees. 661-670, infra. 
 
CHAPTER XXVIII. 
 
 ADVERSE POSSESSION. TITLE AND BOUNDARIES TO LAND 
 
 AFFECTED BY IT. 
 
 511. Land Acquired and Boundaries Determined by Adverse Possession 
 
 -By early English law a person acquired by long use the right to hold and 
 enjoy under two laws, the law of prescription and that of limitations. The 
 right acquired by prescription was a positive right of ownership; the right 
 given by the statute of limitations was a right to be let alone in the quiet 
 possession of land so acquired. The latter barred the previous owner from 
 asserting his rights or maintaining any suit for the recovery of his land. In 
 this country there is little if any difference between the two as regards real 
 property. The same period is required by both, and the way consistently and 
 logically to apply the law is to give the possessor title to the land as owner 
 after an adverse user for the statutory period. 1 
 
 512. Surveyor should Take Cognizance of his Client's Rights, To 
 render good service to his client a surveyor will not merely discover and locate 
 the paper title to an estate, but will include all that legally and properly 
 belongs to it. If, in making the survey by the description in the comeyance, 
 he finds an existing line that differs from his line and includes more than 's 
 called for by the paper titles, he should make inquiries whether a division- 
 line has ever been mutually agreed upon and established by the parties or 
 their grantors; whether the line has ever been submitted to arbitration and 
 thus determined, and how long it has existed in its present state. Answers 
 to these inquiries will enable him to make a complete report and thus to put 
 on record facts and evidence that may prove valuable to the proprietor in 
 years to come. 
 
 The subjects of "Agreements and Acquiescence as to Boundaries" and 
 " Arbitration of Boundaries " have already been considered. 
 
 In determining the boundary-lines of land over which a proprietor may 
 assert ownership and maintain possession, a surveyor's first duty is to consult 
 the records, or to call for copies of the title-deeds, which the owner generally 
 has in his possession and under which he claims. These usually contain 
 descriptions by boundaries (fixed monuments, courses, and distances) which 
 
 1 Langdell's Eq. Pleading, 119-127. 
 
 342 
 
343 ADVERSE POSSESSION. 5^4- 
 
 are sufficient to establish the precise boundary-lines of the estate. While these 
 may be sufficient to locate and inclose the land claimed under the deed or by 
 the grant or devise, yet other lands may be owned which may rightfully and 
 properly be included in the survey. 
 
 It has been shown how one owning lands bounded upon streams and 
 bodies of water may acquire lands by accretion, and that these should be 
 included in the survey of a man's estate. It is now proposed to explain other 
 conditions and circumstances, the long-continued existence of which will 
 enable a person to acquire title to land formerly held and claimed by others. 
 Such land if it has certainly become the property of the proprietor should be 
 included in the survey and included as part of the estate, and a surveyor 
 should know with some reasonable degree of certainty w.hat can be claimed 
 and what may not be included. To understand this fully he must know some 
 of the reasons for this peculiar phase of the law which permits one man to lay 
 claim to, and eventually acquire, title to another man's lands. 
 
 513. Brief History of Rights by Adverse Possession. The law governing 
 adverse claims to land is the result of a desire on the part of the members of 
 civilized society to secure their estates to themselves, free from vexatious suits 
 and controversies; to insure themselves the quiet and peaceful enjoyment of 
 their possessions, and to bury litigation in the grave of the past. The present 
 law is not the result of a first attempt, but is the outcome of a number of 
 legislative acts. Its history begins in 1275; when an act was passed which 
 limited suits for possession of land to claims acquired since 1189, the time of 
 Richard I. Any man who had held possession since 1189 had the title to the 
 land. In 1540 a statute was passed which forbade any suit or claim to land 
 not held within sixty years by the party himself, his grantor or predecessor 
 under whom he claimed. This statute was followed in 1623 by another which 
 reduced the statutory period to twenty years, which statute denies any person 
 who may have had right and title to land to enter after the lapse of twenty 
 years after the right accrued to him. It requires him to bring any suit or 
 action at law to recover the land within twenty years after the title descended 
 to him or cause of action accrued, and precludes him from bringing any action 
 at any time after twenty years. This period has been retained by many of the 
 older states of this country, and substantially the same or similar statutes have 
 been enacted. In the Western and Southern states the period varies from five 
 to twenty-one years. 
 
 514. Possession as Evidence of Title, Possession itself is a species of 
 title, of lower grade it is true, yet it is good as against all who cannot show a 
 better title, and by lapse of time may become, under the statute of limitations, 
 perfect and indefeasible. 1 This possession when under a claim of ownership 
 is called adverse possession, and when open, adverse, and uninterrupted for 
 the period fixed by statute gives to the owner so claiming and holding an 
 
 1 McNeely v. Langan. 22 Ohio St. 32. 
 
515- OPERATIONS PRELIMINARY TO CONSTRUCTION. 344 
 
 indisputable ownership of the land so held and claimed. The claim of 
 ownership must be open, notorious, and for the entire period ; it may not be 
 quiet, in secret, or relinquished for a single moment during the whole time. 
 Possession, ordinary acts asserting ownership, such as cultivation, occupation, 
 and use, are sufficient to show a claim of ownership. The possession must 
 be open and notorious and not by stealth; it must be adverse to everybody; 
 it must be exclusive and uninterrupted. When such a possession has con- 
 tinued for the period established by statute (twenty years in many states) it 
 establishes a complete title to the lands in the one who has had possession, 
 which title cannot be reconveyed, abandoned, or relinquished to the former 
 owner except by a deed, duly attested, acknowledged, and recorded, as 
 required by law in ordinary conveyances of title. 1 After the lapse of the 
 statutory period the adverse possession ripens into a title, and this cannot be 
 waited by an agreement. It gives a perfect title, one that will satisfy a 
 guarantee of a perfect title. 2 
 
 The law giving a person title to land after possession for a certain number 
 of years is a statutory law, and every engineer or surveyor must make himself 
 acquainted with the peculiarities of the law of his own state. They do not 
 differ much in general principle. All are modifications of the English statutes 
 or of those of the older states which have themselves been framed after the 
 English laws. The chief differences are in the periods required, and in the 
 disabilities which are permitted* to prevent the operation of the law. It is 
 only intended to give here the general principles of the law as found laid down 
 in the decisions of the courts, leaving it imperative that every engineer or 
 surveyor must read the statutes of the state in which he proposes to prac- 
 tice his profession. What constitutes adverse possession is a question of law 
 and for the 'court to say ; whether the facts and circumstances attending any 
 particular case are sufficient to make a possession adverse is a question for a 
 jury under proper instructions by the court. 
 
 515. Essential Elements of Adverse Possession to Give Title. Adverse 
 possession must consist of six elements, or coexisting circumstances, viz. : 
 (i) it must be adverse and hostile; (2) it must be actual; (3) it must be 
 visible, open, and notorious; (4) it must be exclusive; (5) it must be con- 
 tinuous and uninterrupted; (6) it must be under claim or color of title or 
 right. 
 
 51?. Possession must be Adverse and Hostile. By "adverse and 
 hostile " is understood that the possession must not be by permission, license, 
 or agreement of the owner. The possession of a tenant, a licensee, or one 
 who enters land under contract of sale is not adverse or hostile to the land- 
 lord or licensor. It is not necessary that the party personally occupy the 
 
 School Dist. v. Benson, 31 Me. 381. 849 [1889]. 
 
 Sfe also Armstrong v. Ristian, 5 Md. * Hughes v. Graves, 39 Vt. 359; Faloon 
 
 256; schall v. Wins. R.^R., 35 Pa. St. v. Simshauer (111.), 22 N. E. Rep. 835. 
 191; Jones v. Hughes (Pa.), 16 All. Rep. 
 
345 ADVERSE POSSES* A A T . 5l6. 
 
 land. The possession may be by or through the party's agent, steward, or 
 tenant, or under a contract of purchase. However, the party should have 
 taken and at some time have had actual possession, i except, it seems, in case 
 of a trust deed. 2 
 
 No length of possession by those who hold by permission of the owner 
 will cause limitations to run against the title of the owner; 3 but consent of 
 the owner of land to its occupancy by another does not of itself prevent such 
 occupancy from being adverse, if the other essentials of an adverse holding 
 appear. 4 
 
 A tenant or subtenant must terminate his tenancy with, or surrender his 
 lease to, the legal owner; to whom also he must declare his adverse possession 
 or claim. A denial of the title of his landlord at the expiration of his lease, 3 
 a purchase of a tax-title 6 and a claim of ownership under it, a surrender of 
 possession and subsequent taking adversely, 7 will set the statute running and 
 form an adverse possession. 
 
 A mere holding over after the lease has expired is not adverse; 8 but a dis- 
 claimer and notice to the owner after the term has expired will set up adverse 
 title without surrendering the possession of the premises, 9 and notice of such 
 adverse holding need not be shown by evidence so convincing as to preclude 
 all doubt. 10 In California a tenant who holds under one who is not the real 
 owner will hold adversely to the real owner without a surrender to his land- 
 lord and a reentry. 11 
 
 Generally possession will have to be surrendered unless the disclaimer is 
 equivalent to a surrender, or is so apparent that there can be no doubt of the 
 tenant's hostile claims. 12 
 
 What has been said of tenants may in general be said of a licensee/ 3 or 
 of a trustee, 14 or of tenants in common, 13 or of a life-tenant as against the 
 
 1 Wiggins v. Kirby (Ala.), 17 So. Rep. Rep. 347. 
 
 354; Parks v. Barnett (Ala.), 16 So. Rep. u Millett v. Lagomarsino (Cal.), 40 
 
 136. Pac. Rep. 25. 
 
 2 Ivy v. Yancey (Mo.), 31 S. W. Rep. 12 Bedlow v. New York Dry-dock Co. 
 937- " (N. Y.), 19 N. E. Rep. 800 [1889]; Vosen 
 
 3 Long v. Hall (Tenn.), 46 S. W. Rep. v. Dantel (Mo.), 22 S. W. Rep. 734; 
 343 [1898], Harrison v. Caswell (Sup.), Whitney v. Edmunds, 94 N. Y. 309 
 45 N. Y. Supp. 560. [1884]. 
 
 4 Murphy v. Reynaud (Tex. Civ. App.), 13 Haggard v. Martin (Tex. Civ. App.), 
 21 S. W. Rep. 991. 34 S. W. Rep. 660; Downing v. Dinwid- 
 
 5 Catalino v. Decker, 38 Conn. 362; die (Mo. Sup.), 33 S. W. Rep. 470; Cole- 
 Butler v. Bertrand (Mich.), 56 N. W. man v. Pickett (Sup.), 31 N. Y. Supp. 
 Rep. 342, a subtenant; Wilkins v. Pensa- 480; Jacob Tome Inst. v. Crothers (Md.), 
 cola City Co. (Fla.), 18 So. Rep. 20. 40 Atl Rep. 261 [1898]. 
 
 6 Weichselbaum v. Curlett, 20 Kan. u Gardner v. Holland (S. C.), 19 S. E. 
 
 709. Rep. 997; Kansas C. Inv. Co. v. Fulton 
 
 7 1 Amer. & Eng. Ency. Law 240. (Kans. App.), 46 Pac. Rep. 188; Meacharn 
 
 8 Learned v. Talmadge, 26 Barb. (N. v. Bunting (111.), 41 N. E. Rep. 175; Cam- 
 
 Y.) 444; Shields v. Horbach (Neb.), 68 eron v. Chicago, M. & St. P. Ry. Co. 
 
 N. W. Rep. 524. (Minn.), 61 N. W. Rep. 814. 
 
 9 Vass v. King (W. Va.), 10 S. E. Rep. 15 Garcia v. Illig (Tex.). 37 S. W. Rep. 
 
 402; Shields v. Horbach (Neb.), 68 N. 47*; Mahill v. Torrence, 163 111. 277; 
 
 W. Rep. 524. Pierson v f Conley (Mich.), 55 N. W. Rep. 
 
 10 Reusens v. Lawson (Va.), 21 S. E. 387. 
 
5 1 6. OPERATIONS PRELIMINARY TO CONSTRUCTION. 346 
 
 remainderman entitled to a reversion. 1 
 
 -If, however, a trustee holding title to land for the use of one during life, 
 with remainder to others, to be ascertained at the termination of the life- 
 estate, allows a prescriptive title to ripen against him during the life-estate, 
 the remaindermen are also barred. 2 When the lessee or tenant has held 
 under a void lease it seems that his holding is adverse. 3 In the state of New 
 York by statute a tenant's possession does not become adverse until twenty 
 years after he has ceased to pay rent or after the lease has expired. 
 
 One who enters into possession under contract of sale cannot be adverse 
 unless his hostility has been manifest by pronounced acts brought expressly, 
 or by legal implication, to the vendor's notice. 4 A purchaser of land under 
 a parol contract who has paid only part of the purchase-price and who was 
 put in possession by vendor does not hold adversely. 5 Possession becomes 
 adverse on compliance by the purchaser with all conditions, 6 including the 
 payment of the purchase-price. 7 However, it seems that the possession of 
 the purchaser is not the possession of the vendor, so that a subsequent pur- 
 chaser can have the benefit of the time during which the earlier purchaser 
 held. The possession by the vendor was held subordinate and not adverse to 
 the purchaser. 8 
 
 Possession by either husband or wife under a void deed of the land occu- 
 pied is not adverse one to the other if they are living in marital relations. But 
 if the wife die 9 or separate from the husband, then it seems adverse possession 
 begins. 10 
 
 Where a grantee in a deed erases his name and inserts that of his wife, 
 with intent to vest title in her, and she holds the land as owner thereof, the 
 statute of limitations begins to run in her favor during the life of her husband, 
 and continues uninterrupted by his death. n 
 
 As between parties sustaining parental and filial relations, the possession 
 of land of the one by the other is presumed to be permissive and not adverse, 
 and to overcome such presumption there must be some open assertion of 
 hostile title other than mere possession, and knowledge thereof brought home 
 to the owner. 12 The possession of land acquired by a father under a convey- 
 ance made to his infant daughter by her grandfather, and delivered to such 
 
 Austin v. Brown (W. Va.), 17 S. E. 6 Doe v. Roe (Del. Super.), 32 Atl. Rep. 
 
 Rep. 207. 39 1 ' 7 Houst 386. 
 
 2 Cushman v. Coleman (Ga.), 19 S. E. T Ward v. Cochran (C. C. A.), 71 Fed. 
 
 Rep. 46. Rep. 127. 
 
 3 Jones v. Madison County (Miss.), 8 8 Jaff. Ry. Co. v. Ogler, 82 Tnd. 394; 
 So. Rep. 87. McCormack v. Silsby (Cal.), 22 Pac. Rep. 
 
 4 Kerns v. Dean (Cal.), 19 Pac. Rep. 874. 
 
 817 [1889]; Spratt v. Livingston (Fla.), 9 Berkowitz z/. Brown, 23 N. Y. Supp. 
 
 14 So. Rep. 160; Roe v. Bundy's Heirs 792. 
 
 (La.), 12 So. Rep. 759; Clark v. Comford 10 Warr v. Honeck (Utah),2g Pac. Rep. 
 
 (La.), 12 So. Rep. 763. 1117. See I Amer. & Eng. Ency. Law 250. 
 
 5 Gamble v. Hamilton (Fla.), 1280. u Massey v. Rimmer, 69 Miss. 667. 
 Rep. 229; Bird v. N. J. & N.Y. R. (Sup.), 12 O'Boyle v. McHugh (Minn.),6 9 N.W. 
 38 N. Y. Supp. 281. Rep. 37- 
 
347 ADVERSE POSSESSION. 5 I/- 
 
 father, can never ripen into a title by prescription; and if he conceals the 
 facts from her, he cannot obtain title by adverse possession, although for 
 twenty years after she became of age he retained the land and rented it to 
 her. 1 
 
 Where the children of a decedent take possession of his land, their holding 
 is adverse to persons who claim to be his children by another woman, his 
 lawful wife, and that those in possession are illegitimate. 2 A holding by right 
 of dower is not adverse. 3 
 
 517. Adverse and Hostile Character of Possession a Question of Inten- 
 tion. This element of hostility to the true owner is an indispensable element 
 of adverse possession. It must be continuous and notorious, and cannot be 
 inferred, as the presumption is in favor of the true owner. If lands are 
 inclosed by mistake and claimed by the party as his own, it will work 
 a disseisin; but if a fence is built for the purpose of husbandry and with no 
 intention of building it on the true dividing-line, and no claim is made to the 
 land to the fence, but only to the true line, wherever that may be, to be 
 subsequently ascertained, this possession is not adverse. The question is, did 
 the party claim to the fence or did he not ? a question of intent. 
 
 This inquiry into the intention of parties is a matter for the jury, and one 
 burdened with difficulties. The natural selfishness of mankind prompts a 
 man to say that of course he claimed to the fence, if by so swearing (doing) 
 he can hold that which he otherwise would lose. There are strong opinions 
 and decisions that it is only necessary for a person to enter and take posses- 
 sion as his own, to take rents and profits to himself, and to manage the 
 property as an owner would manage his own, as if he were the true owner 
 and accountable to no person. 
 
 The motives of the possessor cannot be inquired into; whether he intends 
 a wrongful disseisin or whether he occupies what he sincerely believes to be 
 his own, a possession for the statutory period gives him title. Into the 
 recesses of his mind, his motives or purposes, his guilt or innocence, no 
 inquiry will be made. It is the visible and the adverse possession with an 
 intention to possess that constitutes its adverse character, and not the remote 
 views or belief of the possessor. 4 The intention to claim adversely is an 
 essential ingredient. It matters not that the possessor was mistaken, and that 
 had he been better informed he would not have entered on the land. If by 
 mistake he has inclosed the land of another and claimed it as his own to 
 certain fixed monuments or boundaries, his actual and uninterrupted posses- 
 
 1 Parker v. Salmons (Ga.), 28 S. E. Rep. Rep. 382; Westenfelder v. Green (C. C.), 
 681 [1897]; Lawrence v. Lawrence 76 Fed. Rep. 925. See, contra, Edwards 
 (Oreg.), 12 Pac. Rep. 186; Jester v. v. Humphreys (Tex.), 36 S. W. Rep, 333, 
 Francis (Tex.), 31 S. W. Rep. 245. and Eldridge v. Parish (Tex.), 25 S. W. 
 
 2 Westenfelder v. Green (Oreg.), 34 Rep. 49, a homestead. 
 
 Pac. Rep. .23. * Humphreys v. Hoffman, 33 Ohio 395; 
 
 8 Robinson v. Allison (Ala.), 12 So. French v. Pearce, 8 Conn. 430. 
 
5 I 7- OPERATIONS PRELIMINARY TO CONSTRUCTION. 348 
 
 sion as owner for the statutory period will work a disseisin, and his title will 
 be perfect. 1 
 
 It is impossible to explain the invisible motives of the mind, or to inquire 
 whether the possessor of land acted under his best knowledge and belief. If 
 one take possession of land and retain it under claim of ownership, it does 
 not matter whether in conscience he believes he was taking it wrongfully or 
 rightfully; the question is, has he possessed for the period required, unin- 
 terruptedly and exclusively, under a claim and belief of right, and has he 
 appropriated to his own use, without account, the rents and profits ? 
 
 An essential ingredient is the claim of right hostile to the owner. The 
 quo animo (intention) with which the possession was taken and held is the 
 test. An inquiry as to the intention of the possessor is therefore essential, in 
 order to determine the nature of his possession. The adverse possession must 
 be strictly proved, it will not be presumed. The presumption is in favor of 
 the owner, that he holds possession under the regular legal title. 
 
 Where one goes into a house, knowing that no one is looking after the 
 rent thereof, with the intention of keeping it so long as he can do so without 
 paying rent, his possession is not adverse. 2 If he does not intend to claim 
 as his own a small tract of land included within the inclosure, his possession 
 is not adverse. 3 
 
 What will prove an intention to possess adversely, under claim of right, is 
 a question about which much controversy exists. Whether mere possession 
 is sufficient to assert the claim of right, or whether there must be other acts 
 and declarations, is not perfectly settled. The doctrine that exclusive posses- 
 sion, occupation, cultivation, etc., under belief that the premises are rightfully 
 possessed, are not sufficient unless accompanied by a claim of title to the 
 premises, has prevailed in some states. They maintain that belief alone is 
 not sufficient, but that the claim of right, asserted and demanded, is indis- 
 pensable. 
 
 Land held under a mistake as to description is held adversely, and such 
 holding gives title by limitation. 4 The element of intention is important, and 
 at the same time one almost impossible to ascertain. 
 
 Although the cases setting forth this doctrine have not as yet been over- 
 ruled in their respective states, subsequent decisions in Maine, Alabama, and 
 Missouri seem to have left but little authority in them except in the local 
 jurisdiction where they were decided. 5 The decisions stand and should 
 have some consideration in Iowa, Vermont, Alabama, Maine, Missouri, and 
 Georgia. 
 
 1 Levy v. Verga, 25 Neb. 764; Obernalta * Pharis v. Jones (Mo. Sup.), 26 S. W. 
 
 v, Edgar, 44 N. W. Rep. 82; 41 N. W. 1032. 
 
 Rep. 773. *i Amer. & Eng. Ency. Law 282. 
 
 'Smeberg v. Cunningham (Mich.), 56 5 Gray's Real Property Cases 85, 86. 
 N. W. Rep. 73. 
 
349 ADVERSE POSSESSION. 518. 
 
 518, Possession Held under a Mistake may be Adverse and Hostile 
 Color of Title, The rule seems to be general that if a person enters upon 
 land under some show or pretense of title, called "color of title," and takes 
 possession of lands not embraced therein, with the intention of possessing the 
 whole, he is treated as being in possession of the whole; but if it were his 
 intention to possess a part only, and his actual possession is confined to that 
 part, then he cannot claim the whole. This rule is not universally followed, 
 and in Mississippi it was held that possession by an adjoining owner, without 
 any intention of claiming any more than what belonged to him, was adverse 
 and gave title. 1 
 
 A mistake in the description does not prevent the grantee from acquiring 
 title by adverse possession. 2 A mistake, either in the deed or in taking of 
 possession, by which the occupant had possession of the wrong lot, will not 
 deprive him of title acquired by limitation. 3 If, however, the entry is by 
 mistake upon land not covered by his title, he acquires possession only of 
 what he actually occupies. 4 
 
 If a line has been erroneously run, and the parties, ignorant of the mis- 
 take, occupy according to it for the statutory period, believing and relying 
 upon it as the true boundary, it cannot afterwards be changed or disturbed. 
 The title thus acquired cannot be transferred by a mere oral agreement to 
 run a new line. 5 If the parties did not rely upon the first survey, but intended 
 or expected to make a subsequent survey to settle the division-line, then the 
 possession will not give title. The question of what were the parties' inten- 
 tions, their claims, and the nature of their possession, is a question for the 
 jury exclusively. 6 
 
 A purchaser whose lot was described as sixty feet frontage, but who took 
 possession of sixty-six feet to a fence, under belief that his lot ran to the 
 fence, and actually occupied to the fence for the full period required to give 
 title, was held to have absolute title even though he was mistaken. 7 If, how- 
 ever, such a mistake is made by inadvertence or ignorance of the true line, 
 and with no intention to claim any portion of the adjoining lot, it is not 
 adverse. 8 
 
 An agreement that one of two adjoining owners should keep up a division- 
 fence, but should keep it entirely within his own bounds, will not preclude 
 the one erecting the fence from claiming to the original boundary; the agree- 
 
 1 Metcalf v. McCutchen, 60 Miss. 145. 5 Beckman v. Davidson (Mass.), 39 N. 
 But see Grube v. Wells, 34 Iowa 148; E. Rep. 38. 
 
 Napier v. Simpson, i Tenn. 453. 6 Yetzer v. Thoman, 17 Ohio St. 130. 
 
 2 Bean v. Bachelder, 74 Me. 202; Sou- 7 Hitchins v. Morrison, 72 Me. 331. 
 der v. Jeffries, 8 N. E. Rep. 288. . 8 Riley v. Griffin, 16 Ga. 141; Brown v. 
 
 3 Richer v. Hubbard, 73 Me. 105; Can- Gray, 3 Greenl. (Me.) 126; Walbrun v. 
 field v. Clark (Oreg.), 21 Pac. Rep. 443 Ballen, 68 Mo. 164; Winn v. Abeles, 35 
 [1889]. Kan. 85; Thomas v. Babb, 45 Mo. 384; 
 
 4 Napier v. Simpson, i Tenn. 453; St. Parish v. Coon, 40 Cal. 33; Abbott v. 
 L. University t/. McCune, 28 Mo. 481; Abbott, 51 Me. 575; St. Louis University 
 Holton v. Whitney, 30 Vt. 410. v. McCune, 28 Mo. 481. 
 
519- OPERATIONS PRELIMINARY TO CONSTRUCTION. 35O 
 
 ment having recognized that the fence was not on the true line, and the 
 agreement not being good as a conveyance or color of title. l 
 
 The question is, has the occupant claimed title to the land in his posses- 
 sion, or has he believed that the land belongs to him ? If he has, then the 
 fact that he has been mistaken will not prevent his holding adversely. 2 It 
 should be occupied under color of title. A lost deed, an unrecorded deed, a 
 void tax-deed, may each constitute color of title. 
 
 It appears that if one deliberately take possession of land, or if he inten- 
 tionally encroach his fence beyond his true line, or if he build his building 
 knowing it to be upon the land of his neighbor, then he will acquire a good 
 title to the property so occupied; but if he be conscientious and honest, 
 intending only to take what properly belongs to him, then he gets only what 
 is clearly his, no matter how lo*ig he has had possession. It must be con- 
 ceded that this is unfortunate law, and a strong bid for dishonesty, that the 
 court itself holds out to its subjects. 
 
 519. Possession by Agreement and Acquiescence is Adverse, It must 
 follow that if two adjoining owners agree upon and establish a dividing-line 
 between their estates, and occupy according to that line, it will preclude them 
 from ever denying it to be the true line after such continued possession for 
 the statutory period. 3 The maintenance of a division-fence, each keeping up 
 one-half, and occupation to the fence each on his own side, is sufficient to 
 submit the question of an adverse possession to the jury. 4 An agreement may 
 be inferred after long acquiescence, and, as before stated, in some states the 
 long acquiescence need not be for the full statutory period required to give 
 title by adverse possession. 5 * If the boundaries are indefinite and cannot be 
 ascertained, and a division-line is agreed upon as the boundary-line, the line 
 thus established will control their deeds and should be taken as the true 
 
 line. 6 f 
 
 520. The Possession must be Actual. By " actual " possession is meant 
 an actual entry, a foothold upon the land, a possession in fact, a standing 
 upon it, an occupation of it as a real demonstrative act done. It should be 
 accompanied with the real and effectual enjoyment of the estate, with the 
 occupation of its fruits and profits. Such actual possession is usually evidenced 
 by occupation, by a substantial inclosure, by cultivation and appropriate 
 use according to the customs of the locality. What is necessary to constitute 
 an actual possession may vary in different jurisdictions and is frequently 
 
 1 White v. Hapeman, 43 Mich. 267; 3 i Amer. & Eng. Ency. Law 249, and 
 
 Hagey v. Detweiler, 35 Pa. St. 409; cases cited ; Bader v. Zeise, 44 Wis. 
 
 Hitchins v. Morrison, 72 Me. 331; Ricker Tobey v. Secor, 60 Wis. 310, 500. 
 
 v. Hubbard, 73 Me. 105; Brown v. Cock- * Jones v. Smith, 64 N. Y. 180. 
 
 erel, 33 Ala. 38; Enfield v. Day, 7 N. H. 5 i Amer. & Eng. Ency. Law 250. 
 
 459. 6 See Tyler on Boundaries 335~337- 
 
 3 i Amer. & Eng. Ency. Law 283. 
 
 * See Sees. 500-503, supra. \ See Sees. 491-510, supra. 
 
351 ADVERSE POSSESSION. 5 2I 
 
 defined in the statutes of the states. Occupation, residence, inclosure, culti- 
 vation, and improvement suitable to the character of the land are all acts 
 evidencing an actual possession. 
 
 It is evident that the same rule cannot be applied equally to all tracts. 
 An actual possession of wild lands, of a farm, or of a city lot must essentially 
 be of different character; and what constitutes .an actual possession must be 
 governed by the facts of each case. It is not necessary that the land be 
 fenced or otherwise inclosed; cutting of grass and of timber to a definite line, 
 the cultivation of the soil, and similar improvements and evidence of owner- 
 ship will extend the possession to the portion actually cut over or cultivated. 
 
 The jury may take into consideration the nature of the land, 1 and neither 
 actual possession, cultivation, nor residence is necessary when the property is 
 put to the use for which it is suited and the only use of which it is suscepti- 
 ble. 2 Whether a party claiming title by adverse user has such continuous, 
 notorious, and hostile possession as would give him title under the statute of 
 limitation is a question for the jury. 3 
 
 521. What Constitutes Adverse Use. An occasional use of the land, to 
 cut grass, 4 firewood or timber, or for stripping bark 5 or taking stone, or for 
 pasturage and cutting hay, 6 though accompanied with the payment of taxes,? 
 will not constitute adverse possession. 
 
 When lands are partly or periodically submerged, the occasional digging 
 and hauling of sand, 8 or of muck and stones, 9 the erection of temporary 
 structures, 10 mere fugitive, disconnected trespasses, however long continued, 
 will not give title. 11 
 
 Payment of taxes, cutting timber, and grazing and watering one's cattle 
 on 1 60 acres of unfenced pasture and timber lands, capable of being inclosed, 
 and a part of which was suitable for cultivation, and the burning of a limekiln 
 on the land, do not constitute adverse possession. 12 
 
 If the land be not fit for any immediate or permanent improvement, actual 
 occupancy, cultivation, or residence may not be necessary. 13 The occupation 
 of pine land by annually making turpentine from the trees 14 has been held 
 
 J Gayner v. Hall, 60 Mo. 271. 8 Strange v. Spaulding (Ky.), 298. W. 
 
 2 Dorr v. School Dist., 40 Ark. 237. Rep. 137. 
 
 3 Mason v. Ammon (Pa.), n Atl. Rep. 9 Linen v. Maxwell (N. H.), 40 Atl. 
 449 [1888]. Rep. 184 [1893]. 
 
 4 Sage v. Larson (Minn.), 71 N. W. Rep. 10 Fuller v. Dauphin (111.), 16 N.E. Rep. 
 923. 917 [1888]; Dubuque v. Coman, 64 Conn. 
 
 5 Lantry v. Parker (Neb.), 55 N. W. Rep. 475. 
 
 962; Taylor v. Slingerland (Minn.), 40 N. n Strong v. Powell (Ga.), 20 S. E. Rep. 
 
 W. Rep. 575; Soapez/. Doss(Tex.),45 S.W. 6. But see Fin v. Wis. Land Co. (Wis.), 
 
 Rep. 387; Ohio & B. S. R. Co. v. Wooten 40 N. W. Rep. 209; Mission v. Cronin 
 
 (Ky.) 46 S. W. Rep. 681; Harms v. (N. Y. App.), 38 N. E. Rep. 964; Judson 
 
 Kranz (111.), 47 N. E. Rep. 746. v. Duffy (Mich.), 55 N. W. Rep. 837. 
 
 6 Sage v. Larson (Minn.), 71 N. W. Rep. 12 Nye v. Alfter (Mo. Sup.), 30 S. W. 
 923; Vineyard v. Brundrett (Tex.), 42 S. Rep. 186. 
 
 W. Rep. 232. 13 Leeper v. Baker, 68 Mo. 400,407; 
 
 7 Herbst v. Merrifield (Mo.), 34 S. W. Washburn v. Cutler, 17 Minn 361. 
 Rep. 571. 14 Bynum v. Carter, 4 Ired. (N-C.)3*o. 
 
422. OPERATIONS PRELIMINARY TO CONSTRUCTION. 352 
 
 a sufficient adverse possession. 1 
 
 The use of a pond for canal and mill purposes, flowing and emptying at 
 convenience, using soil from the bottom to repair a dam, and exercising such 
 general acts, constituted an actual possession that in time would give title to 
 the land under the pond; 2 but the mere cultivation of land upon which the 
 owner of a mill-dam has the right to back water is not an act of possession 
 adverse to such owner. 3 
 
 Adverse possession of unproductive lands, consisting of barren sand-hills 
 cut up by sloughs, is shown by recording the deed, cutting all the timber of 
 any value thereon, having the land surveyed and boundary-lines grubbed out 
 and staked, going upon the land at intervals, claiming absolute ownership, 
 clearing a small portion, building a brush fence around the portion cleared, 
 employing agents in the neighborhood of the land to look after it, and paying 
 taxes, without proof of actual occupation. 4 
 
 Adverse possession was held not shown where the purchaser of land in 
 Texas which was covered with timber, and suitable for a stock-ranch, erected 
 a house suitable for ranching purposes and two stock-pens, and carried a stock 
 of cattle to the premises, and turned them loose on the range, going on the 
 land from time to time to mark and sell the stock, at such times occupying 
 the house for less than two weeks, but never for more than four months in a 
 year. There was some furniture in the house, and, when not occupied, it 
 was locked, and defendant's son carried the key. 5 
 
 Peaceful possession and proof that claimant paid the taxes, cut valuable 
 timber, erected shanties, burned charcoal, cleared and cultivated portions, 
 run lines, made roads, and prevented trespass, will establish title by limita- 
 tion. 6 
 
 Evidence that plaintiff surveyed the land when he purchased it, visited it 
 thereafter nearly every Sunday, pastured horses on it, set out trees, dug a 
 well, dictated the erection of a small house, and every year for twenty years 
 mowed the land or let it out to mow, is sufficient to sustain a verdict that he 
 had been in actual, open, visible, notorious, exclusive, uninterrupted, and 
 adverse possession of the land for twenty years. 7 
 
 Evidence that defendants and their predecessors claimed to be the owners, 
 and exercised acts of ownership by driving stakes to mark boundaries,' by 
 fishing, hunting, and trapping, by leasing to others, by the erection of signs 
 warning off trespassers, and by building a dike around the land, is sufficient 
 to establish adverse possession. 8 
 
 ^lannery v. Hightower (Ga.), 25 S. E. 5 Pendleton v. Snyder (Tex.), 24 S. W. 
 
 Rep. 371. ' Rep. 363- 
 
 'Eastern R. v. Allen, 135 Mass. 13. 6 Deer Lake Co. v. Mich. L. & I. Co. 
 
 'State v. Suttle (N. C.), 20 S. E. Rep. (Mich.), 50 N. W. Rep. 807. 
 725. 7 Sullivan v. Eddy (111. Sup.), 45 .N. E. 
 
 4 Worthley v. Burbanks (Ind. Sup.), 45 Rep. 837; Winnipisiogee Paper Co. v. N. 
 
 N. E. Rep. 779. Accord, Guinn v. Spill- H. Land Co. (C. C.), 59 Fed. Rep. 542. 
 man (Kan.), 35 Pac. Rep. 13; Moore v. 8 Chabert v. Russell (Mich.), 67 N. W.. 
 
 Hinkle (Jnd.), 50 N. E. Rep. 822 [1898]. Rep. 902. 
 
353 AD VERSE POSSESSION. 521. 
 
 It is sufficient that the occupant went into occupation under a claim of 
 ownership, erected buildings thereon, and denned the boundaries thereof by 
 plowing furrows around them, according to the custom in the neighborhood, 
 and afterwards remained in possession with the. lands so inclosed. 1 
 
 Occupying a place from year to year, in the spring, to make sugar from 
 the trees upon a tract of land; having a woodpile and burying potatoes in the 
 ground; digging sand from time to time, are regarded as mere acts of tres- 
 pass if done in a settled country. 2 One can scarcely distinguish between 
 making sugar from a maple orchard, and turpentine from a pine forest; but 
 the one act committed in a settled community in Vermont might not be an 
 adverse possession, while if committed on wild lands in North Carolina, 
 whose only use was that of making turpentine, it would constitute an actual 
 possession. 3 Surveying of the land and paying taxes will not constitute actual 
 possession in New York. 4 Going upon the wild land, digging and hunting 
 for a corner and boundary-lines, driving cattle thereon and employing a man 
 to plow in the following spring, are not such acts as alone will create title by 
 adverse possession. 5 Acts of ownership in a highway, such as cutting grass, 
 setting out shade-trees, building a sidewalk, and piling lumber and stones in 
 the highway against the fence, do not establish a claim by adverse possession. 6 
 Possession of an unfenced lot for the purpose of marble- and stone-cutting, 
 involving the scattering of stone all over the lot, is sufficient. 7 
 
 If used in the manner adapted to the condition and location of the land, 
 a residence thereon is not essential. 8 The land must be used in the ordinary 
 way, be put to the same uses, and employed in the same manner and for the 
 same purposes as other property in the locality. 9 If its character or location 
 be such as does not permit of improvements of a permanent character, then 
 such improvements will not be necessary to adverse possession. If it is not 
 fit for residence, or its soil is not susceptible of cultivation, then the occupa- 
 tion will be regulated accordingly. 10 If an adverse owner claims cultivation 
 as an evidence of his claims, his cultivation must be such as is usual in the 
 neighborhood, it must be continuous and not merely an occasional negligent 
 effort. 11 It is not necessary that uninclosed and uncultivated land be inclosed 
 and cultivated merely because it can be. 12 It is quite essential that the nature 
 
 1 Sage v. Morosick (Minn.), 71 N. W. Rep. 65, 168 U. S. 278. 
 
 Rep. 930. 8 Anderson v. Burnham (Kan.), 34 Pac. 
 
 2 Wilson v. Blake, 53 Vt. 305. Rep. 1056. 
 
 3 Bynum v. Carter, 4 Ired. (N. C.) 310. 9 Booth v. Small, 25 Iowa 177; Backus 
 
 4 Douglass v. Irvine, 126 Pa. St. 643 v. Burke (Minn.), 65 N. W. Rep. 459; 
 [1889]; Thompson v. Burhans, 61 N. Y. Hook v. Joyce (Ky ), 22 S.W. Rep. 651, a 
 70. burial lot: Sadtler v. The Peabody Co., 
 
 6 Brown v. Rose, 55 Iowa 734; Morris 66 Md. i [1886]. 
 
 v. Callanan, 105 Mass. 129; Wheeler v. w Clancy v. Hondlett, 39 Me. 451; I 
 
 Winn, 53 Pa. St. 122; Thompson v. Bur- Amer. & Eng. Ency. Law 255. 
 
 bans, 61 N. Y. 52; Overton v. Davisson, n i Amer. and Eng. Ency. Law 259. 
 
 i Gratt. 211. 12 Goodson v. Brothers (Ala.), 20 So. 
 
 "Bliss v. Johnson, 94 N. Y. 235 [1883]. Rep. 443. 
 
 7 Holtzman v. Douglas, 18 Sup. Ct. I 
 
522. OPERATIONS PRELIMINARY TO CONSTRUCTION. 354 
 
 of the land be shown. 1 
 
 The possession must be confined to one spot during the whole period pre- 
 scribed by statute, and must not be a roving possession from one part to 
 another of the land, which has not been held adversely for the full period. 
 The different periods of possession of the separate parcels cannot be united to 
 make the number of years required. 2 
 
 522, Land should be Inclosed. If the property is used openly and ex- 
 clusively for the purposes for which it is ordinarily fit or adapted, accompanied 
 with a claim of ownership, no fence or other artificial boundary is necessary 
 to indicate the limits; 3 but if the occupant relies on inclosures, they must be 
 substantial and their nature be governed by the lands inclosed. A mere 
 brush fence, or one made by falling and lopping trees, has been held to be 
 insufficient. 4 A log boom built by driving piles and connecting them by 
 boom-sticks, completely surrounding a tract of submerged land, has been held 
 a sufficient inclosure of the land. 5 
 
 The land claimed should be inclosed on all sides. Two sides fenced, a 
 highway on the third, and marked trees on the fourth side has been held to 
 be insufficient. 6 A lot fenced on three sides was held not to be inclosed, to 
 give adverse possession. The fence must be erected by the party claiming, 
 and for the purpose of marking the boundaries, though the fence of an adjoin- 
 ing owner, if on the boundary-line claimed to, may suffice. 7 A lot fenced on 
 three sides and bounded by a stream (river) is inclosed. 8 If the adjoining 
 tract of property be owned by the party making the adverse claim, and the 
 two parcels are fenced together, then there is no necessity for maintaining a 
 fence between them. 9 Temporary breaks in a fence or an inclosure will not 
 interrupt the adverse possession; 10 neither will breaks caused by a flood. 11 If 
 the fence be built to water's edge of navigable waters, it need not be extended 
 as the waters recede to give title to accretions. 12 The fences should be main- 
 tained. 13 If a fence cannot be maintained owing to violent waters or shifting 
 sands, it will be sufficient if the plat of land be marked by monuments. 14 
 
 Natural boundaries will answer the purpose if of a definite and substantial 
 character. Whether they are so or not is a question for the jury under proper 
 
 1 Goff v. Cole (Miss.), 13 So. Rep. 870. 9 Sanders v. Riedinger, 51 N. Y. Supp. 
 
 2 Potts v. Gilbert, 3 Wash. C. C. 475. 937- 
 
 Griffith v. Schwenderman, 27 Mo. 412; 10 Sharrock v. Ritter (Tex.), 45 S. W. 
 
 i Amer. & Eng. Ency. Law (2d ed.) 835. Rep. 156; Williams v. Rand (Tex.), 30 S. 
 
 3 Zeilin v. Rogers, 21 Fed. Rep. 103. W. Rep. 509; Hillman v. White (Ky.), 44 
 *Sharrock v. Ritter (Tex.), 45 S. W. S. W. Rep. in [1898]. 
 
 Rep. 156 [1898]; Vineyard v. Brundrett n Baldwin v. Durfee (CaL), 48 Pac. 
 
 (Tex.), 42 S. W. Rep. 232. Rep. 724. 
 
 5 Allen v. McKay (Cal.), 52 Pac. Rep. 12 Chicago, etc., R. Co. v. Groh (Wis.), 
 828, 120 Cal. 332 [1898]. 55 N. W. Rep. 714. 
 
 6 Parkersburg Ind. Co. v. Schultz (W. 13 Sharrock v. Ritter (Tex.), 45 S. W. 
 Va.), 27 S. E. Rep. 255. Rep. 156; Duke v. Helms (Tcnn.), 45 S. 
 
 7 i Amer. & Eng. Ency. Law 260. W. Rep. 465. 
 
 8 Sanders v. Riedinger (Sup.), 43 N. Y. "Mission v. Cronin (Sup.), 36 N. Y. 
 Supp. 127; s. c., 51 N. Y. Supp. 937 Supp. 77. 
 
 [1898]. 
 
355 ADVERSE POSSESSION. 524. 
 
 instructions. If there is sufficient evidence to go to the jury upon the ques- 
 tion, it is error to refuse an instruction that if the jury believe that plaintiff's 
 fences, together with natural barriers, formed an inclosure sufficient to turn 
 cattle, it was sufficient for the purpose of possession. 1 The sea, a lake, a 
 river, a slough, a ledge of rocks on one side of a field will constitute an 
 inclosure for that side sufficient to give adverse possession. 2 A title adverse 
 to the owner of a house may be acquired by prescription in a strip of land 
 adjacent thereto, although the eaves of the house project and discharge water 
 over the strip. 3 The whole essence of the occupation and the acts evidencing 
 it may be embodied in the answer to the question, " Were the acts such as 
 would bring to any one who claimed title to the land notice of the fact that 
 the possessor claimed, and was exercising, an ownership over it adversely to 
 his claims ? " If answered in the affirmative, the possession will be actual. 
 
 523. Payment of Taxes. Payment of taxes is not an occupation; it is 
 merely evidence of an adverse claim of title. 4 It alone Confers no right to 
 land. 5 The possession should be corporeal. 6 Payment of taxes for twenty- 
 five years is strong evidence of a claim of title, and the failure to make claim 
 or to pay the taxes is some evidence of an abandonment of any rights in the 
 property. 7 To make such an act evidence of adverse possession the person 
 paying taxes must have an interest in the claim of title to the land. 8 The 
 books of the assessor of the town in which the land lies are admissible as 
 evidence, to show to whom the land was assessed during the statutory period. 9 
 
 Where the taxes for a year do not become due and payable until after the 
 period, necessary to perfect title under the five years' statute of limitations, 
 ends, title becomes perfect under the statute without payment of the taxes for 
 that year. 10 
 
 524, Adverse Possession under Color of Title. Thus far we have treated 
 only of the cases where the owner-ship was claimed entirely as a result of the 
 adverse possession. No deed or equivalent muniment is necessary when 
 actual possession has been maintained under adverse claim. 11 
 
 A party who claims against the legal owner, who has entered without color 
 of title, and who relies wholly on his adverse possession must show an actual 
 
 Goodwin v. McCabe, 75 Cal. 584 Rep. 574; Gage v. Smith (111.), 31 N. E. 
 
 [1887]. Rep. 430. 
 
 2 Flint v. Long (Wash.), 41 Pac. Rep. 7 Holtzman v. Douglas, 18 Sup. Ct. Rep. 
 49. 65. 168 U. S. 278 [1897]. 
 
 3 Randall v. Sanderson, in Mass. 114 8 Thatcher v. Gottleib(C. C. A.), 59 Fed. 
 [1872]. Rep. 872. 
 
 4 Wren v. Parker (Conn.), 18 All. Rep. 9 Elwell v. Hinckley, 138 Mass. 225 
 790; Cashman v. Cashman's Heirs (Mo.), [1885]; Wren v. Parker (Conn.), 18 Atl. 
 27 S. W. Rep. 549; Langdon v. Templeton Rep. 790; Pasley v. Richardson (N. C.), 
 (Vt.), 28 Atl. Rep. 866; Whitman v. Shaw 26 S. E. Rep. 32. 
 
 (Mass.), 44 N. E. Rep. 333. 10 Halbert v. Brown (Tex.), 31 S. W. 
 
 5 Durfee v. Peoria, etc., Ry. Co. (111.), Rep. 535. But see Neilson z/. Grignon 
 
 30 N. E. Rep. 686; Hilburn v. Harris (Wis.), 55 N. W. Rep. 890. 
 
 (Tex.), 298. W. Rep. 923. n Humbert v. Trinity Church, 24 Wend. 
 
 6 Chamberlain v. Abadie (La.), 19 So. (N. Y.) 604. 
 
5 2 5 OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 occupation to a definite line or a substantial inclosure, and to defeat the legal 
 title the possession must have been definite, positive, and notorious. 
 
 When land is claimed under the right of possession only, its extent is con- 
 fined to the limits actually occupied, inclosed, and cultivated under claim of 
 ownership; but when the land has been entered upon, occupied, and 
 improved under a deed or other written document, usually spoken of as 
 color of title, the possessor acquires a good title to all that his dee4 or instru- 
 ment of title describes or professes to convey. 1 And this is true even though 
 his deed or instrument of conveyance be good for nothing. He must, how- 
 ever, have had the possession of the land entirely to himself; for if the true 
 owner has had possession of any part of the tract, the disseizor's claim will be 
 confined to the part he has had inclosed and has actually occupied or pos- 
 sessed. His possession of a part cannot be extended to the whole if the true 
 owner has had possession of any part of the land. The real owner, having the 
 better claim, is better entitled to the land to which both may equally claim 
 possession. 2 
 
 525, Adverse Possession must be Open, Visible, and Notorious. For the 
 disseizor to claim adverse possession to anything at all, the occupation must 
 have been open, visible, notorious, and exclusive of the part claimed. 3 There 
 must be no stealthiness or secretiveness in the occupation. It must be open 
 and notorious, and if held under color of title it seems the instrument of title 
 should be registered. A secret deed which is not recorded, given to a party 
 who occupies or has occupied under recorded leases recently expired, will not 
 amount to an entry under color of title, and to an adverse possession, unless 
 the true owner is given notice. 4 If A is entitled to a conveyance of land, and 
 by an agreement between A and B, in order to defraud A's creditors, the 
 land is conveyed to B, a title to the land by adverse possession of more than 
 twenty years is acquired by A against B if B knows that A is holding the 
 land adversely and under a claim of right during his possession, although A 
 is without means to pay his debts during such possession. 5 
 
 526. What is Color of Title. Color of title has been defined to be that 
 which has the appearance of title, but which is in reality no title; 6 a deed not 
 executed in proper manner; a conveyance from one who does not own the 
 land, or who has no authority from the real owner to execute a conveyance; 
 in fact any instrument purporting to be a conveyance, but that does not for 
 some reason have that effect. Such color of title might be a bequest under 
 will by descent, a deed not recorded, an invalid or void bond for title, an 
 ancient deed, a mortgagee's deed, a deed without seal, an administrator's 
 deed, a guardian's deed, a void patent, a deed from one having no title if 
 
 1 Kendrick v. Latham (Fla.), 6 So. Rep. * See I Amer. & Eng. Ency. Law 276. 
 871. 5 Elwell v. Hinckley, 138 Mass. 225 
 
 2 Jackson v. Woodruff, I Cowen 276. [1885]. 
 
 3 i Amer. & Eng. Ency. Law 262; De- 6 Swift v. Mulkey (Oreg.), 21 Pac. Rep. 
 long v. Mulcher, 47 Iowa 445 [1877]. 8 7i- 
 
357 ADVERSE POSSESSION. 526. 
 
 grantee is ignorant, an infant's deed, a deed with but one witness when two 
 are required. 
 
 The claimant who enters under a color of title may claim and hold to the 
 boundaries described, after adverse possession for the statutory period. As 
 to what is color of title is a question of law for the court. The question of 
 occupancy under it is one of fact for the jury. 1 
 
 An absolute nullity, as a void deed, judgment, etc., will not constitute 
 color of title 2 if the invalidity be apparent on the face of the deed. 3 
 
 The record of a survey does not of itself constitute color of title, nor does 
 an executory contract, nor a deed signed by one as "agent," nor a void 
 judgment of a court, a tax certificate, nor an instrument in which the grantor 
 admits title in another. Possession taken under a mortgage before foreclosure 
 is not adverse possession under such claim and color of title, with payment 
 of taxes. 4 
 
 Possession by a railroad, under a verbal gift, of a right of way is suf- 
 ficiently adverse to set in motion the statute of limitations, 5 as is a parol gift 
 of land made by a father-in-law to his son-in-law, who entered, made valuable 
 improvements, continued in possession, claiming the land as his own, and 
 then conveyed it to a purchaser for value. 6 In determining the character of 
 the possession of one claiming title to land by gift, the real question is not so 
 much what was intended by the donor as what was the donee's understand- 
 ing, what he claimed and did. If it be found that he believed the gift to be 
 absolute, and went into possession under that belief and held adversely to the 
 donor for twenty-one years, the verdict must be for him. 7 
 
 To constitute a color of title the instrument (deed) by which the convey- 
 ance is attempted must define the extent of the claim. Such a deed is one 
 whose description fails; as, e.g., a description starting at a corner named, 
 " thence east 27 chains 50 links to John Farwell's patent," etc., which gave 
 only a line, and no area whatever, when applied to the ground. It was not 
 competent to give color of title, because no definite boundaries were described 
 and no land included by them. 
 
 A bad title will answer for color of title; but if no lands are described, 
 nothing can pass. If the deed under which constructive possession is claimed 
 contains no description that can be located upon the ground, then there is 
 nothing to limit his claims of possession except what has actually been 
 occupied. 8 
 
 1 1 Amer. & Eng. Ency. Law 276, 277. Rep. 499. 
 
 2 i Amer. & Eng. Ency. Law 288; Curdy 5 Shepard v. Galveston, H. & H. R. Co. 
 v. Stafford (Tex.), 27 S. W. Rep. 823. But (Tex. Civ. App.), 22 S. W. Rep. 267. 
 
 see Murphy v. Doyle, 33 N. W. Rep 220, 6 Studstill v. Willcox (Ga.), 20 S. E. 
 
 37 Minn. 113; Miesen v. Canfield (Minn.), Rep. 120. 
 
 67 N. W. Rep. 632. 7 Moreland v. Moreland (Pa.), 15 All. 
 
 3 Bartlett v. Ambrose, 78 Fed. Rep. Rep. 655 [1888]. 
 
 839. 8 Jackson v. Woodruff, i Cowen 276. 
 
 4 Johnson v. Davidson (111.), 44 N. E. See Goodwin z>. McCabe, 75 Cal. 584. 
 
527. OPERATIONS PRELIMINARY TO CONSTRUCTION. 358 
 
 By the same rule, a person who took possession of lot No. 5 under a deed 
 for the adjoining lot No. 4, believing it to be his lot and claiming it as such, 
 was held to have acquired adverse possession of only so much of lot No. 5 as 
 he actually had occupied and improved, because no part of lot No. 5 was 
 described in his deed. The general statement that the occupation of part of 
 a tract will give title to all that the color of title covers or describes should 
 be accepted with some discretion. While it is reasonable and just enough in 
 case of a single farm or lot of land where cultivation, improvement, and 
 husbandry' are carried on, it would be mischievous indeed if a person produc- 
 ing a worthless title, perhaps from one who had not the slightest claim, could 
 acquire title to a thousand acres described by the ocupation and improvement 
 of one acre only. No such doctrine was ever intended to be sanctioned by 
 the courts. 1 
 
 When a man has occupied under color of title adversely and exclusively, 
 he may hold to the boundaries described in the instrument under which he 
 claims. He must have the full constructive possession entirely to himself, 
 exclusive of the true owner, or he will be confined to his actual possession. 2 
 
 The occupant under color of title is confined to the boundary-line 
 described in his deed and cannot claim outside that line. He may acquire 
 title outside by actual possession only. A plat or survey may be used in 
 connection with other evidence to fix the origin, date, and limits of the pos- 
 session. 3 
 
 But in Missouri there seems to exist a different rule where the boundaries 
 of the lot claimed are given on a town map, in which case the claim must be 
 under such map to make it available. 4 The extent of the possession is con- 
 fined to the limits claimed at the time of entry. The fact that the titles have 
 been obtained from different sources makes no material difference if the tracts 
 covered by the titles adjoin each other and are all in one inclosure, and no 
 one but the claimant is residing upon them. 5 
 
 527. Adverse Possession of Mines. Adverse possession may be acquired 
 of a mine, a mining claim, a quarry, or a vault. When the minerals below 
 the surface have been severed by deed, no interest is acquired in them by 
 adverse possession of the surface. To lay claim to a mine below the surface, 
 the occupant must prove possession of the mine independently. 6 Similarly 
 the possession of a vault beneath the surface was held not to be a possession 
 of the surface. 7 
 
 The same general principles apply to the adverse use of a mining claim as 
 
 1 Woodworth, J., in Jackson v. Wood- 5 Wharton v. Bunting, 73 111. 16. 
 
 ruff, i Cowen 276. 6 i Amer. & Eng. Ency. Law 296; Lulay 
 
 2 1 Amer. & Eng. Ency. Law 290. v. Barnes (Pa.), 34 All. Rep. 52; Kingsley 
 
 3 Dorr v. School Dist., 40 Ark. 237; v. Hillside C. & I. Co. (Pa.), 23 All. Rep. 
 
 Heaver v. Morgan (W. Va.), 23 S. E. Rep. 250. 
 
 874; Fullam v. Foster (Vt.), 35 Atl. Rep. 7 Keoningsz/. Jung (Wis.), 40 N.W. Rep. 
 
 484. Soi [1889]. 
 
 * St. Louis v. Gorman, 29 Mo. 593. 
 
359 ADVERSE POSSESSION. 528. 
 
 to that of land. The possession must be open, adverse, actual, continuous, 
 exclusive, etc., the same as to acquire title to land. The mining, to consti- 
 tute actual possession, must be prosecuted as continuously as the nature of 
 the business and the custom and convenience of the country will permit. 1 
 
 The mere digging for coal in the winter, the property being abandoned the 
 rest of the year, is a mere act of trespass and will not constitute adverse pos- 
 session. 2 
 
 528. Owner must have had Notice of Adverse Possession. The adverse 
 nature of the possession must be manifest to the owner, who must have 
 notice, by some means, that his land is held adversely to him and hostile to 
 his claim. To give this notice it is not necessary that the occupant should 
 prepare and deliver a manuscript declaration of his claims, nor go to the 
 owner to declare in person that he holds it as his own. Mere acts of owner- 
 ship, such as are usually exercised over land, are, at law, notice to all the 
 world. If their hostile character be such that an owner who is reasonably 
 careful of his interests would discover the adverse possession, they will 
 be deemed sufficient to give notice. 3 It has been held that the owner of the 
 land should know of it. 4 The recording of a deed of conveyance in the 
 county registry is a notice to the world and therefore to the party. 5 
 
 Any act which is sufficient to put a person on inquiry is sufficient for ad- 
 verse possession, such as visible and notorious ownership under a claim of 
 right. 6 Mere acts of trespass will not be notice of adverse possession; the 
 occupation must be of such a character that if the owner visited the land he 
 might see visible signs of hostile possession: habitations, inclosures, cultiva- 
 tion something to show him that some one is disputing his title. 
 
 A mere notice posted on the land declaring an intention to hold property 
 is insufficient. 7 Yet where one of two tenants-in- common of a party-wall 
 bi^ilt the wall to an increased height, and on one of the stones was placed 
 an inscription stating that the wall and the land on which it stood belonged 
 to him, it was held that on these facts a jury might find an actual ouster upon 
 which plaintiff might maintain an action against defendant. 8 Such an inscrip- 
 tion on a wall will prevent an adverse possession arising even though the 
 person has not asserted his claims of ownership for thirty years. 9 
 
 Operating a railroad over land, even though there is nothing recorded 
 showing the extent claimed. Building a shed, cutting wood, quarrying and 
 burning limestone, and the ordinary operations of farming, if carried to a 
 reasonable extent, have been held to give notice. Actual inclosure is not 
 
 1 Stephenson v. Wilson, 50 Wis. 95; 37 5 Forest v. Jackson, 56 N. H. 357; 
 Wis. 482; 40 Wis. 594. Bracken v. Jones, 63 Tex. 184. 
 
 2 Jackson v. Stoetzel, 87 Pa. St. 302. 6 Yelverton v. Steele, 40 Mich. 538 
 3 Graydon v. Hurd (C. C. A.), 55 Fed. [1879]. 
 
 Rep. 724; Goodson v. Brothers (Ala.), 7 Lynde v. Williams, 68 Mo. 365. 
 
 20 So. Rep. 443; Unger v. Mooney, 63 8 Stedman v. Smith, 8 E. & B. I [1857]. 
 
 Cal. 586. 9 Phillipson v. Gibbon, L. R. 6 Ch. 428. 
 
 4 Reimer v. Stuber, 20 Pa. St. 458. 
 i 
 
5 2 9- OPERATIONS PRELIMINARY TO CONSTRUCTION. 360 
 
 .sufficient, nor is cutting timber, marking of trees, and making an entry or 
 .survey. l 
 
 An owner of land is supposed to know the locality and the boundaries of 
 his property, and he is chargeable with notice of the meaning and locality of 
 every settlement made upon it by another without his authority. 2 He cannot 
 plead his ignorance of others' possessions and adverse claims to his land, nor 
 does the fact that he lives apart from the land, or even at a great distance, 
 relieve him from the notice. Though expected to know the boundaries of his 
 land, he would not be chargeable with notice that an adjoining owner had 
 encroached upon him a few feet by building his fence over the line. 3 
 
 It has been held that if a person pass over the corner of a farm for twenty 
 years unknown to the owner, not secretly, he has a prescriptive right. 
 However, evidence of ignorance of the owner is admissible. 4 
 
 The personal presence of an adverse claimant is not required. He may 
 occupy by his agent or tenants, or by a purchaser under contract, 5 or a 
 woman by her husband. 6 The possession of one's agent is, for the purpose 
 of the statute of limitations, the possession of the principal. 7 Possession by a 
 husband or wife after the death of either is adverse to the heirs. 8 Possession 
 of land by one who acts as bailiff or tenant both for the rightful owner and 
 for an adverse claimant is the possession of the rightful owner. 9 
 
 529. The Possession must be Continuous and not Interrupted, If the 
 true owner succeeds in depriving the occupant of possession, the time already 
 occupied by the latter goes for naught, and he must begin anew. An 
 ^abandonment of the premises even with the intention of returning shortly will 
 deprive the occupant of the benefit of the time he has held, unless he has held 
 for the full period. 10 And this is true even though the taxes are assessed 
 against him. 11 Every discontinuance of possession restores the possession to 
 the rightful owner, and causes the occupant to forfeit any and every claim 
 that he may have acquired. If he re-enter, it is a new entry and cannot be 
 added to the time occupied previous to the abandonment. 12 
 
 An interruption for one day only is sufficient to destroy the occupant's 
 adverse possession, and to require him to continuously hold for the full 
 statutory period after the date of the interruption; 13 but if title has been 
 
 1 Yelverton v. Steele, 40 Mich. 538 Rep. 814; Berkowitz v. Brown, 23 N. Y. 
 
 [1879]. Supp. 792. See Everett v. Newton (N. C.), 
 
 2 Brownson v. Scanlan, 59 Tex. 222. 23 S. E. Rep. 961. 
 
 3 Bracken v. Jones, 63 Tex. 184. 9 Zirngibl v. Calumet & C. Canal & 
 4 Hennefin v. Blake, 102 Mass. 297. Dock Co. (111. Sup.), 42 N. E. Rep. 431; 
 
 5 Cox v. Daugherty (Ark.), 36 S. W. Harper v. Morse (Mo.), 21 S. W. Rep. 
 Rep. 184. 517. 
 
 6 Wood v Armour (Wis.), 60 N. W. 10 Susquehanna R. Co. v. Quick, 68 Pa. 
 Rep. 791; McCleod v. Bishop (Ala.), 20 St. 189. 
 
 So. Rep. 130; Brown v. Bocquin (Ark.), n Louisville & N C. Ry. Co. v. Philyaw 
 
 20 S. W. Rep. 813. (Ala.), 6 So. Rep. 837. 
 
 7 Lantry v. Parker (Neb.), 55 N. W. 12 1 Amer. & Eng. Ency. Law 272. 
 
 Rep. 962. 13 Olwine v. Holman, 23 Pa. St. 279. 
 
 8 Pattison v. Dryer (Mich.), 57 N. W. 
 
361 ADVERSE POSSESSION. 530. 
 
 acquired by possession for the full period, it cannot be lost by absence, 
 abandonment, or interruption, but only by the same adverse possession for 
 the full period by which the person secured it himself. 1 Whether the posses- 
 sion has been continuous or interrupted is a question ,of fact, and therefore 
 one for the jury. 2 What constitutes possession, interruption, or abandon- 
 ment is a question for the court. 3 
 
 No presumption arises that an adverse possession of land shown to have 
 existed for a time continues for a sufficient period to give title by adverse pos- 
 session; 4 but its continuance for the statutory period under a claim or color 
 of title must be proved. 5 The presumption is that the possession of land is 
 in subordination to the legal title. 6 Possession must be proven for the full 
 period required by statute. Proof that a person took adverse possession of 
 land " about " May i, 1866, and remained in possession until " about " May 
 i, 1886, is not sufficient to prove title by adverse possession, the statute of 
 limitations being twenty years. 7 
 
 The possession must have been adverse throughout the whole period. 
 Uninterrupted possession when it has been in subordination to the true owner 
 for a part of the time cannot be counted and added on to make the full 
 period required. The same applies to occupation under color of title. There 
 must have been an actual continuous possession of a part, and a claim of the 
 whole, without interruption, for the whole period. 8 
 
 530. What is an Abandonment or Interruption. A recovery by the 
 owner in an action of ejectment and the enforcement of the writ of possession 
 will interrupt adverse possession; 9 but an action brought by the owner and 
 afterwards dismissed will not interrupt the adverse holding. 10 An order of the 
 court requiring the conveyance of the land will interrupt the occupation. 11 
 
 An agreement to arbitrate between the occupant and the owner will cause 
 an interruption. 12 An effort by the occupant to purchase the property from 
 the true owner is a recognition of the latter' s title, and if made within the 
 statutory period, and not to settle any real or threatened litigation, is such an 
 admission of the^wner's title as will interrupt the running of the statute. 13 
 Such an offer is not, however, conclusive of the want of title. 14 An effort to 
 buy, or the actual buying, of outstanding claims is not an abandonment of 
 possession, or an acknowledgment that such claims are valid. 15 
 
 1 Shriver v. Shriver, 86 N. Y. 571 Spof- 7 Allis v. Field (Wis.), 62 N. W. Rep. 85. 
 ford v. Bennett, 55 Tex. 293. 8 I Amer. & Eng. Ency. Law 269. 
 
 2 r Amer. & Eng. Ency. Law 272. 9 Dun v. Miller, 75 Mo. 260. 
 
 3 Banks v. Collins (Ky.), 39 S. W. Rep. 10 i Amer. & Eng. Ency. Law 275. 
 519. n Gower v. Quinlan,4O Mich. 572 [1879]. 
 
 * Woods v. Hull (Tex.), 38 S. W. Rep. 12 Perkins v. Blood, 36 Vt. 273. 
 
 165. 13 Litchfield v. Sewell (la.), 66 N. W. 
 
 6 Atkinson v. Smith (Va.), 24 S. E. Rep. 104. 
 
 Rep. 901. But see Hollingsworth v. u Warren v. Bowdran (Mass.), 31 N.E. 
 
 Walker (Ala.), 13 So. Rep. 6. Rep. 300. 
 
 6 Sanders v. Riedinger (Sup.), 43 N. Y. 15 i Amer. & Eng Ency. Law 275; Cha- 
 
 Supp. 127. But see Alexander v. Gibbon pin v. Hunt, 40 Mich. 595 [18.79]. 
 (N. C.), 24 S. E. Rep. 748. 
 
53- OPERATIONS PRELIMINARY TO CONSTRUCTION. 362 
 
 The recording of a conveyance of underlying coal is not an entry inter- 
 rupting adverse possession of the surface of the land. 1 The continuity of 
 possession is not broken by a sheriff's sale, and deeds of the land during such 
 possession. 2 
 
 If the claimant yield his possession when threatened with legal proceedings 
 by the owner, or if he accept a lease from him, or make an agreement for a 
 consideration that the owner will not bring suit to recover possession of the 
 land, these acts anlount to an acknowledgment by the claimant of the owner's 
 superior title and may destroy his adverse holding. 
 
 The paying of rent to one who is not the owner and whose title is imper- 
 fect will not amount to an interruption, 3 for the occupant may hold adversely 
 to certain persons and not as regards others. 4 However, his actual possession 
 must be adverse to all the world, not merely to one who sues for the land. 5 
 
 Mere acts of trespass, such as tearing down a fence by an adjoining owner, 
 violent acts by strangers, as tearing down the house and making the premises 
 uninhabitable, interference and occupation by an army in times of war, will 
 not arrest the possession, or stop the running of the statute in the claimant's 
 favor. 6 
 
 Adverse possession may be interrupted by abandonment of premises for a 
 sufficient period to interrupt the continuity. Neglect and abandonment by 
 the claimant will work a forfeiture; as, e.g., by beginning the erection of a 
 house and, after leaving it partly built, returning some months later to finish 
 and occupy it, 7 or by permitting the fences that inclose the land to decay and 
 become insufficient to protect the land. 8 But when a fence was maintained 
 intact for a number of years, when gaps were cut in it, and left down for two 
 or three years, but the posts remained standing, with the wires thereon, and 
 it could be seen that a fence was around the land, though there were gaps in 
 it, it was held that such fence was sufficient to give notice of adverse posses- 
 sion, and that plaintiffs were entitled to the land. 9 The posts should not be 
 any considerable distance apart. 10 
 
 The fact that a purchaser does not take possession b> tenant until two 
 months after purchase does not break a continuity of possession unless there 
 be evidence of an intention to abandon. 11 Vacancy for two years because the 
 claimant was unable to find a tenant will not destroy the continuity of 
 possession. 12 
 
 ^innegan v. Penna. Trust Co., 5 Pa. clair, 22 S. C. 361. 
 
 Super. Ct. 124 [1897]. 'Byrne v. Lowry, 19 Ga. 27. 
 
 2 Goodsen v. Brothers (Ala.), 20 So. 8 Borel v. Rollins, 30 Cal. 408. 
 
 Rep. 443. 9 Moore v. McCown (Tex. Civ. App.), 
 
 'Donahue v. Oleonor, 45 N. Y. Sup. 20 S. W. Rep. 1112. 
 
 Ct. 278. 10 Freedman v. Bonner (Tex. Civ. 
 
 4 Portis v. Hill, 14 Tex. 69. App.), 46 S. W. Rep. 47. 
 
 5 Bracken v. Union Pac. Ry. Co. (C. C. "Gary v. Woodham (Ala.), 15 So. Rep. 
 A:), 75 Fed. Rep. 347. 840. 
 
 6 1 Amer. & Eng. Ency. Law 273; Ford 12 Downing v. Mayes (111.), 38 N. E. 
 
 v. Wilson, 35 Miss. 490; Duren v. Sin- Rep. 620. 
 
363 ADVERSE POSSESSION. 532. 
 
 Absence from the land at times, leaving them vacant, but with no inten- 
 tion of abandoning possession, will not amount to an interruption; e.g., a 
 short absence on business. If one member of the family remains, it will 
 prevent interruption, as will an agent or tenant who is left in possession. 1 
 Where a person enters on land under color of title, and cultivates the land, 
 except for one year, during which he pastured it, and keeps up the farm 
 fences, he cannot because no one actually resided on the land, be said, as a 
 matter of law, to have abandoned the possession. 2 
 
 531, Exclusive Possession and Interruption Determined by Location 
 and Character of Land. What is an adverse and exclusive possession, and 
 what is an interruption of such possession, depends very much upon the 
 character of the land, and the purposes to which it is adapted and for which 
 it is used. The adverse possession of an outlying lot of small value, remote 
 from the dwellings of people, suitable for pasturing or for the growth of wood 
 or for other purposes of husbandry, requires a very different proof from that 
 which establishes the exclusive occupation of a residence or a shop or a store- 
 house within the limits of a city. The rule of law is the same in each case, 
 but the evidence necessary to prove the fact is very different. In either case 
 the question is. " Has the adverse possession, considering the nature, situa- 
 tion, and uses of the land, been exclusive and continuous?" This is a 
 question for the jury; and although there may be cases of such a nature and 
 so plain that it would be the duty of the court to rule as a matter of law that 
 the adverse possession has been interrupted, yet the general principle is that 
 it is a question for the jury.* 
 
 532. Interference or Overlapping of Title. When the descriptions of 
 lands in the deeds of two claimants cover or include a piece or strip of the 
 same land there is said to be an interference of title. If either actually 
 occupies and improves the overlapping piece for the statutory period openly, 
 adversely, continuously, and exclusively, he will have obtained exclusive 
 ownership. If neither owner has actual possession of the land or strip in 
 conflict, the constructive possession will be in the one who has the older 
 grant. 3 A constructive possession to the unimproved part of a tract which 
 two adverse claimants have claim to will remain in him who made the first 
 entry under claim of title and who improved a part of the tract. 4 
 
 For the junior grantee to acquire title by adverse possession to the dis- 
 puted piece, his occupation must extend to the land in controversy. If the 
 junior claimant occupy but a part of the land covered by his title, an entry 
 and occupation by the owner of the older title will oust him from the posses- 
 sion of all the land covered by the older title except what is actually 
 in possession of the junior claimant. 5 
 
 : i Amer. & Eng. Ency. Law 274. 3 i Amer. & Eng. Ency. Law 288, 289. 
 
 2 Perry v. Lawson (Ala.), 20 So. Rep. * Jackson v. Vermilyea, 6 Cowen 677. 
 
 611. 5 i Amer. & Eng. Ency. Law 289. 
 
 * See Sec. 521, stipra. 
 
533- OPERA TIONS PREL1MINA RY TO CONS TR UCTION. 364 
 
 If two persons are in possession, each claiming under color of title, the 
 benefit of the possession will be given to the one having the better title. 1 
 Other things being equal, the legal right will claim the benefit of the posses- 
 sion. It will be a rare case that presents identically the same circumstances, 
 precisely coeval and concurrent. Priority of time will in general close the 
 door against the later title and occupancy. 2 
 
 533. Color of Title and Good Faith. It is often said that good faith is 
 necessary to acquire land under color of title. By good faith is not to be 
 understood honest belief by the claimant that he has the best title or even any 
 title at all. It is good faith in claiming possession and title: the real and 
 persistent intention to claim the possession as his own, distinct from and 
 hostile to the owner. It is not necessary that the claim of the title should be 
 good or even believed to be good. 3 It is enough if there be a real intention 
 to assert and rely on it as hostile to the true owner. Some courts go so far 
 as to declare that, however wrongful or fraudulent the possession, or defective 
 the title, an entry under claim of exclusive title, founding such claim upon 
 color of title, accompanied by the continued statutory possession, constitutes 
 an effective adverse possession. 4 This seems to x bethe rule in New York, 
 Kansas, and Georgia. The claimant may know his color of title is good for 
 nothing, and that he has not the remotest right to the land ; but if he assert 
 and maintain his possession under his worthless color of title, it will ripen 
 into a good title. There is some conflict as to how innocent the occupant 
 must have been when he accepted the conveyance or color of title. Fraud 
 will not be presumed, but if proven it may destroy the color of title. It has 
 been held that no color of title was obtained when the occupant knew his 
 grantor was a mere squatter. 5 His claim may be invalid if he knew the 
 grantor had no title to convey, or if he obtained his deed by fraud. 6 
 
 What is good faith is a question for the jury, but each particular case with 
 its different circumstances may receive a different finding, depending upon the 
 intelligence and impartiality of each jury. A parol agreement may give color 
 of title Where heirs verbally agree between themselves for a division, or 
 neighbors exchange farms, or a father gives to one of his children a certain 
 tract, these acts have been y held to give good color of title, sufficient to extend 
 the possession of a part to the whole. For such a verbal agreement to 
 amount to color of title, the whole tract must be definite and its limits deter- 
 mined by some visible acts, signs, marks, or indications which are apparent 
 to all. 7 
 
 It is doubtless this element of definite boundaries, showing the extent 
 
 1 Bellis v. Bellis, 122 Mass. 414; Win- 5 McCarney v. Higdon, 50 Ga. 629. 
 
 ter v. Stevens, 9 Allen 526; Crispin v. See Redfield v. Parks, 132 U. S. 239 
 
 Hannovan, 50 Mo. 536. [1889]. 
 
 3 Simpson v. Downing, 23 Wend. 316. 6 Saxton v. Hunt, 20 N. J. Law 487. But 
 3 Lantry v. Wolff (Neb.), 68 N.W. Rep. see Cornelius v. Giberson, 25 N. J. Law I. 
 
 494. 7 1 Amer. & Eng. Ency. Law 280. 
 
 4 i Amer. & Eng. Ency. Law 288. 
 
ADVERSE POSSESSION. S34- 
 
 claimed, that gives an occupant title to the whole when he has occupied a part 
 under color of title. Without something to show how much he intended to 
 claim when he took possession, he might, when his title had ripened, lay claim 
 to the whole county. A parol gift, accompanied by possession and a claim 
 of ownership, may constitute color of title, and if the donee holds adversely 
 and as his own, the possession will ripen into title. 
 
 Where an absolute gift of land is made by a father' to his son, or by 
 a divorced husband to his wife, and the donee takes and holds possession 
 under such gift, his (or her) possession is adverse and continues so, and the 
 father or husband is presumed to have notice of such possession. 1 And one 
 in possession of land under a verbal gift from a person claiming adversely is- 
 likewise in adverse possession under the same claim by which his donor held 
 it. 2 Parol evidence of a former owner showing a verbal gift of land to a rail- 
 road for right of way, although not admissible to establish an easement there- 
 in, is admissible for the purpose of showing that the possession of the railroad 
 was adverse. 3 
 
 Such a parol gift conveys no title and may be revoked at any time before 
 the full period has elapsed, but it may be the beginning of an adverse posses- 
 sion by the donee, which can be repelled only by proof of a subsequent 
 recognition of the donor's better title. 4 
 
 534. There can be No Adverse Possession against the Public nor the 
 Representative Government.* Adverse possession cannot be held against 
 United States, nor against the state unless the state is especially included in 
 the operation of the statute of limitations, which gives right or title under 
 adverse possession. Individuals cannot in many states acquire rights against 
 the public by adverse user of the public highways, public parks, navigable 
 streams, or other things in which the public has inherent rights and privileges. 
 
 The reason for this is that if individuals were allowed to acquire adverse 
 or prescriptive rights against the public or the representative government, the 
 public and the state would be required to watch their innumerable posses- 
 sions, public ways, and rights to protect them. This they cannot do. The 
 business of the government and public being transmitted entirely through 
 agents who are numerous and scattered, the utmost vigilance would not pro- 
 tect the public from losses and from combinations to defraud the government. 
 The government is therefore exempt from the operation of the statute which 
 gives rights by adverse possession upon the grounds of public policy and not 
 upon the notion of extraordinary prerogative. 
 
 No adverse possession can be had in lands owned by the United States or 
 
 1 Thompson v. Thompson (Ky.). 20 S. 2 Mexia v. Lewis (Tex.), 21 S. W. Rep. 
 
 W. Rep. 373; Ross v. McCain (Mo.), 46 1016. 
 
 S. W. Rep 955; Spradlin v. Spradlin 3 Shepard v. Galveston, H. & H. R. 
 
 (Ky.), 18 S. W. Rep. 14; Schafer v. Co. (Tex.), 22 S.W. Rep. 267. 
 
 Hauser (Mich.), 70 N. W. Rep. 136. * Sumner v. Stevens, 6 Met. 337. 
 
 * See Sees. 682-685, infra. 
 
534' OPERATIONS PRELIMINARY TO CONSTRUCTION. 366 
 
 in state lands unless by the terms of the statute of limitations the state is 
 expressly included within its terms. However, the person in possession may 
 hold adversely against another individual claimant. 1 In some states statutes 
 have been enacted limiting the time within which the state may assert its right 
 to land which has been held adversely. These states are Massachusetts, 
 Mississippi, New York, North Carolina, and South Carolina. In other states 
 there is the presumption of a grant after one has had adverse possession for a 
 long time, the period varying in different states. a 
 
 In North Carolina, Texas, and Pennsylvania the law as to whether title to 
 highways, streets, parks, and other public property can be acquired against a 
 municipal or guast -municipal corporation by adverse possession is not 
 settled. Each side of the question has in its support a long list of authorities. 
 The courts of Arkansas, Connecticut, Illinois, Kentucky, Maryland, Massa- 
 chusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New York, 
 North Carolina, Ohio, Texas, Vermont, and West Virginia have held that title 
 can be acquired against municipalities. In some of these states it has been 
 held that rights could be acquired by adverse possession in streets, alleys, 
 public squares, and highways owned by the municipality. On the other hand 
 it has becn / held in Alabama, California, Illinois, Indiana, Louisiana, 
 Mississippi, Missouri, New Jersey, New York, Pennsylvania, Rhode Island, 
 South Carolina, and Virginia that title cannot be acquired against a munici- 
 pality. These courts maintain that no encroachment by an individual, 
 however long continued, upon property held on a public trust and dedicated 
 to the public can confer any title on the adverse occupant, but is a public 
 nuisance and may be abated as such. Yet some of them hold that as to 
 property of which the legal title is in the municipality and which may be 
 alienated by it, the municipality is subject to limitation laws to the same 
 extent as private individuals. 3 In those states which deny rights acquired by 
 adverse possession it has been held that no parts of the streets or highway or 
 public road or a navigable river could be acquired by adverse possession. 
 
 The law is so unsettled in regard to rights acquired by an individual by 
 adverse possession in public lands and ways that rf is impossible to make any 
 statement that would have general application. Before passing upon such a 
 question it will be necessary to study the cases of the particular jurisdiction 
 in which the case arises. The law has had application not only to public 
 ways on land and water, but also to schoolhouse, fire-engine house, and 
 hospital sites, to burying-grounds, poorhouse tracts, and similar public in- 
 terests. 4 
 
 Adverse possession may be held of, and rights acquired in, land, water, 
 
 *i Amer. & Eng. Ency. Law (2d ed.) * See California, Indiana, Louisiana, and 
 
 876. See Franceour v. Newhouse, 14 Rhode Island cases cited in I Amer. & 
 
 Sawy. (U. S.) 600. Eng. Ency. Law (2d ed.) 882. 
 
 2 See i Amer. & Eng. Ency. Law (2d * See i Amer. & Eng. Ency. Law (2d 
 
 ed.) 878. ed.) 875-882, and cases collected. 
 
367 ADVERSE POSSESSION. 536. 
 
 mines, quarries, and anything which is subject or incident to property in land, 
 the possession and use of which infringes the rights of the owner and gives 
 him a just cause of action against the occupant or user for trespass or in- 
 fringement of his rights. l * 
 
 535, Adverse Possession of Railroad Right of Way.f Railroads have 
 not as a rule been held to be such guast-public corporations as to except 
 them from the statutes of limitations. Individuals may obtain vested and 
 prescriptive rights in railroad companies' rights of way by adverse and con- 
 tinued use for the full period of the statute of limitations. 2 
 
 A farmer may acquire title to a strip of land adjoining a railroad track and 
 owned by the railroad if he cultivate said strip for the full statutory period. 3 
 Possession and cultivation of such strip will not be an adverse holding if the 
 farmer has at all times urged the railroad company to complete the road 
 through his farm, and has not, to the knowledge of the officers of the com- 
 pany, asserted a claim of title to the right of way. 4 
 
 What constitutes adverse possession is frequently held to be a question for 
 a jury, and it has been held that a charge that " running a fence across rail- 
 road company's roadbed not then in use, or cultivating the same at broken 
 intervals, does not constitute adverse possession," is erroneous as invading 
 the province of a jury. 5 
 
 The act of laying pipe-lines for oil in an undergrade private right of way, 
 for wagon travel only, across the lands of a railroad company is a trespass, 
 even though such pipes do not injure the company's ownership of the fee, 6 
 and equity has jurisdiction to enjoin the use of such pipe-lines where the 
 pipes extend underneath the tracks without the owner's consent. 7 
 
 However, the right of a railroad company to build, maintain, and use a 
 bridge over a highway was held consistent with, and not inherently adverse to, 
 the right of other persons to possess the land, and to subject it to a public 
 use, as to lay a pipe beneath the surface of a highway. 8 
 
 536. Adverse Possession by Railroad Companies. A railroad company 
 may hold adverse possession of the lands of an individual or of another com- 
 pany, but the possession of a street by a railroad company under authority 
 given by its charter is not adverse to the public unless the public be excluded 
 from the street. 9 
 
 1 See i Amer. & Eng. Ency. Law(2d ed.) 15 So. Rep. 935. 
 
 874- 6 United States Pipe-line Co. v. Dela- 
 
 2 Railroad Co. v. Houghton, 126 111. ware, L .& W. R. Co. (N. J.), 41 Atl. Rep. 
 233- 759 [1898]. 
 
 3 111. Cent. Ry. Co. v. O Connor, 39 N. 7 Delaware, L. & W. R. Co. v. Breck- 
 E. Rep. 563; Railroad Co. v.- Houghton, enridge (N. J.), 41 Atl. Rep. 966. 
 
 126 111. 233. s penna. R. Co. v. Breckenridge, 38 
 
 *Halbert v. Mayesville, etc., R. Co. Atl. Rep. 740. 
 
 (Ky.), 33 S. W. Rep. 1121. 9 Wayzata v. Gt. Northern Ry. Co. 
 
 6 Nashville, etc., Ry. Co. v. Hammond, (Minn.), 52 N. W. Rep. 913. 
 
 * See Sees. 107, 185, 212, 262, and 326, supra, and 671-700, and 726, infra. 
 f See Sec. 685, infra. 
 
53 6 - OPERATIONS PRELIMINARY TO CONSTRUCTION. 368 
 
 A railroad company claiming adverse title to a right of way lawfully in the 
 possession of a rival company by virtue of condemnatory proceedings, cannot 
 enjoin the latter company from proceeding to construct its road until just 
 compensation is paid to the former company; it being necessary that the dis- 
 puted right and title be first settled at law. l 
 
 The mere construction, maintenance, and occasional use by a railroad 
 company (which has no conveyance of the land) of an ordinary railroad track 
 across a platted street while it still remains unimproved and unfit for public 
 use, and before public convenience or necessity requires it to be opened and 
 improved for use as a street, does not constitute adverse possession, as against 
 the public. Such occupancy must be presumed to be subject to the para- 
 mount right of the public. 2 
 
 The act of a railroad in attempting to condemn land has been held a 
 recognition of the owner's title. 3 
 
 ^anawha, G. J. & E. R. Co. v. Glen luth, 76 N. W Rep. 35. 
 
 Jean, L. L. & D. W. R. Co., 308. E. 3 Nebraska Ry. Co. v. Culver (Neb.), 
 
 Rep. 86. 52 N. W. Rep. 886. 
 
 2 St. Paul & D. R. Co. v. City of Du- 
 
CHAPTER XXIX. 
 
 CONSTRUCTION, INTERPRETATION, AND APPLICATION OF 
 
 DESCRIPTIONS. 
 I 
 
 541. Descriptions in Deeds and Conveyances. Probably the most puz- 
 zling of a surveyor's duties are those of understanding and interpreting 
 descriptions of deeds. Frequently drawn up by members of the legal profes- 
 sion or by ignorant grantors, and copied by careless clerks, they come to his 
 hands in a condition that sometimes provokes exasperation. He often finds 
 particular and general descriptions in conflict, parts omitted, "north" written 
 for "south", figures misplaced, and many other mistakes and misconstructions 
 peculiar to the vagaries of man. What parts shall a surveyor regard under 
 certain circumstances; how much shall he require; what shall he consider and 
 accept of evidence offered by outsiders or by the parties themselves ? These 
 are questions which should be of interest to a surveyor. He should also 
 know how a court regards them, and what it will receive and consider. 
 
 542. Parol Proof of Deeds and Descriptions. Mistakes are made in 
 surveys and in descriptions of surveys and in the copying of deeds, and it is 
 often a question of importance as to how far these mistakes may be explained 
 or co-rected in the courts. It is a general rule that parol evidence is not 
 admissible to alter, vary, or contradict a written instrument, but when there 
 is uncertainty or ambiguity this rule is not to be construed in the strictest 
 sense. Courts have made a distinction between what they term a latent 
 and a patent ambiguity. If the description is so blind that the court is 
 unable to ascertain the intention of the grantor, aided by the evidence of all 
 the material circumstances of the case, then it is designated as a patent 
 ambiguity, and the court will declare the instrument inoperative and void, 
 because to hold otherwise would be to make a new instrument ; but if, on the 
 contrary, the court finds by inquiry into the surrounding circumstances that 
 the description shows clearly and conclusively the intention of the grantor, 
 then the ambiguity is latent, though the identity of the persons or property is 
 doubtful and uncertain. In such a case, for the purpose of determining the 
 parties, the subject-matter, or the quantity, the court may inquire into every 
 material fact pertaining to the persons or the property. 1 
 
 1 Best (Chamb.) on Evidence 232, 233. 
 
 369 
 
54 2 - OPERATIONS PRELIMINARY TO CONSTRUCTION. 3/0 
 
 If an inslrument fairly and fully represents the intent of the parties at the 
 time of its execution, the duty of the court becomes merely one of interpreta- 
 tion and construction of the language employed, the object being to ascertain 
 the express meaning of the parties. If that meaning can be ascertained, it 
 cannot be controverted by any outside evidence. No new words can be 
 added, and the court will not travel out of the four corners of the paper to 
 determine the intention. l Parol evidence cannot be given to show that the 
 grantor of a deed intended a different boundary-line from that actually desig- 
 nated as the division-line. 2 
 
 Exceptions are made where parol evidence is admitted to explain or even 
 to contradict a written contract or deed. Thus evidence "may be introduced 
 to show (i) that the instrument was procured by fraud or misrepresentation, 
 or (2) by duress, or (3) was executed for purposes forbidden by law, or (4) 
 was executed by some person legally incompetent, or (5) was founded upon 
 a mistake of material facts, or (6) that the instrument was always inchoate or 
 conditional, or (7) that it has been in part or wholly discharged or modified 
 by subsequent agreement, or (8) that a new agreement has been substituted 
 by consent of the parties." To enable a jury to decide these questions any 
 evidence of surrounding circumstances, or that partakes of the nature of expla- 
 nation, or is reasonably calculated to place them in the situation of the parties 
 at the time of execution of the deed will, in general, be received. The instru- 
 ment itself must contain the intention of the parties or it will be void and 
 inoperative; the intention must be determined from the contract, deed, or 
 will ; no direct evidence of expression of intention can be introduced. 
 Evidence such as explains the meaning of words, of signs, abbreviations, 
 figures, and diagrams, such as shows whether any person or property exists 
 that answers the description of the instrument, or shows if the grantor or 
 testator possessed any such estate, is explanatory evidence, and is admissible 
 in all cases where any ambiguity or uncertainty exists. Evidence that shows 
 outside relations of the parties or that will place the court in the position of 
 the parties will be admitted. Where part of a contract is written and part 
 unwritten, the part unwritten may be shown by evidence if it be not repugnant 
 to, or inconsistent with, what is written. 3 Parol evidence may be introduced 
 to explain an ambiguity in a deed, but not to enlarge or vary its terms. If 
 the description identifies the premises intended to be conveyed, it is sufficient. 
 For the purpose of sustaining a grant extrinsic evidence may be introduced to 
 identify and establish the objects and calls in a deed. 4 
 
 Parol evidence is admissible to fix a boundary which is variable, to show 
 the location of a stake or stones referred to in the deed as a monument, or to 
 locate the boundaries where an ambiguity exists on the face of a deed. 5 Such 
 
 1 Best (Chamb.) on Evidence 231, 232. 3 Brown v. Byne, 3 El. & Bl. 703. 
 
 2 Fuller v. Weaver (Pa. Sup.), 34 Atl. 4 Stevens v. Wait, 112 111. 544. 
 
 Rep. 634. 5 Opdyke v. Stephens, 4 Dutcher 89; 
 
371 APPLICATION OF DESCRIPTIONS. 543. 
 
 evidence is not objectionable on the ground that it alters, varies, or contra- 
 dicts the written instrument. 1 
 
 The record of a survey by a county surveyor, though it was not legally 
 made, is competent evidence, as tending to show the location of the line in 
 dispute; 2 though such return and map are not admissible to vary the clear 
 terms of a survey, they are admissible to shed such light on the true location 
 as they afford. 3 
 
 543, Sufficiency of Description. Land is described in five ways: (i) by 
 natural boundaries, as streams, ponds, and natural objects; (2) by artificial 
 boundaries, as walls, fences, and monuments; (3) by geometrical lines and 
 angles, called metes and bounds, or distances and courses; (4) by lines and 
 corners of adjoining or abutting estates; (5) by the numbers of lots, sections, 
 ranges, townships, and other designated subdivisions of a city, county, or 
 state. Frequently two or more of these methods of describing land are 
 employed, for greater clearness and precision or for different parts of the field. 
 Descriptions are not confined to any particular class. Regard should be had 
 for the natural features of the estate, the earlier descriptions, and sometimes 
 the wishes and even the whims of the parties. Many questions arise as to 
 the meaning of the terms "adjoining," "abutting," "appurtenant" ; as to 
 what calls govern when two descriptions of the same tract are in conflict; and 
 as to the sufficiency of the description. 
 
 It may seem that almost any description is sufficient in a conveyance of 
 land, yet it is an unfortunate circumstance to have any ambiguity in the 
 description of the subject-matter of the deed. Witnesses die or move away, 
 facts are forgotten, maps and manuscripts destroyed, and the land itself is 
 subject to change by erosion, accretion, subsidence, and disintegration. 
 The drafting of a description is^a task that demands scrupulous care and 
 certainty. It should not be done in haste, and should be read and reread 
 and every part verified and made complete. 
 
 Of the several methods of describing, that by monuments checked by 
 courses and distances is without doubt the most certain and satisfactory. 4 
 The main thing to be considered is certainty. A lack of care in describing 
 boundaries is usually the chief cause of trouble in determining them. Prob- 
 ably there are few surveyors and engineers who have not met in their practice 
 descriptions which have been ridiculous as descriptions, but which as a 
 means of determining the boundaries of an estate have been found far from 
 amusing, or even interesting. One that shows an utter lack of foresight, 
 as well as of after-thought, is the following: " Beginning at an iron pin set 
 in the ground about eighteen inches from the northeast corner of where 
 
 Brown v. Willey, 42 Penn. St. 205; Gree- [1873]. 
 
 ley v. Weaver (Me.), 13 Atl. Rep. 575 2 Holliday v. Maddox (Kan.), 18 Pac. 
 
 [1888]; Reynolds v. Boston Rub. Co. Rep. 290 [1888].. 
 
 (Mass.), 35 N. E. Rep. 677. 3 Curtis v. Aronson, 7 Atl. Rep. 886. 
 
 1 Raymond v. Coffey, 5 Oregon 132 4 2 Amer. & Eng. Ency. Law 499. 
 
544- OPERATIONS PRELIMINARY TO CONSTRUCTION. 372 
 
 Sidney Huntington's coal-house formerly stood," etc.; or the following: 
 " Thence, S. 45 degrees E., ninety feet, to a stake and stones in range of a 
 large rock near the bow of the schooners Peru and Avenger, when building; 
 thence," etc. These might perhaps be preserved as precedents in conveyanc- 
 ing when it is necessary to be certain to a common intent only. 1 
 
 5-14. A Description is Sufficient if the Land can be Located. Where the 
 words employed to describe a tract of land fail to do so in such a manner as 
 to show what tract was intended, the deed will be void for uncertainty of 
 description. If the description include a number of particulars, all of which 
 are essential to ascertain the identity of the tract, no estate will pass except 
 such as will agree with every part of the description; but if the tract intended 
 to be conveyed is indicated with reasonable certainty, it will pass by the con- 
 veyance. The intention of the parties will prevail. 2 If the description be so 
 definite and certain that a competent surveyor, with the records before him, 
 can locate the land, it is sufficient. 3 The points or monuments of the 
 boundary must be capable of being located with certainty. A stake must be 
 fixed more definitely than when it was determined as somewhere within a 
 space covered by a circle the radius of which was fifty feet or more. 4 
 
 Property is often located by reference to a railroad line or to the right of 
 way of a railroad, and this has been repeatedly declared a good description. 5 
 A deed to a railroad company of a right of way " along the line as surveyed 
 and laid out" by the company's engineer is sufficiently certain, the line 
 having been surveyed and distinctly marked by stakes stuck in the ground. 6 
 This was so held even when the survey consisted merely of walking over the 
 land and suggesting a line, and marking the line on the fences with a knife. 7 
 A deed conveying the land south of a "railway cut" was held to convey 
 only the land south of the upper and outer edge of the cut. 8 
 
 Land was held sufficiently described when the deed called for a well- 
 ascertained beginning point, whence the line was to be run to a designated 
 monument, and then gave the course of every other call in the description. 9 
 
 545. Conflicting Parts of Description will be Reconciled if Possible. A 
 deed is to be construed so as to make it effectual if it be possible. When one 
 part of the description is false or impossible it will be rejected if what remains 
 
 1 39 Alb. Law Jour. 199, 219. 6 Thompson v. Southern Cal. M. R. Co. 
 
 2 McLaughlin v. Bishop, 35 N. J. Law (Cal.), 23 Pac. Rep. 130; Owensboro, 
 512 [1872]; Holmes v. Strautman, 35 Mo. etc., R. Co. v. Barker (Ky.) ( 37 S. W. 
 29^ [1864]. Rep. 848; Denver, etc., Ry. Co. v. Lock- 
 
 3 Dunstan v. Jamestown, 72 N. W. Rep. wood (Kans.), 38 Pac. Rep. 794;, Joplin 
 
 899; Carter v. Chavalier (Ala.), 19 So. C. M. Co. v. Joplin (Mo. Sup.), 27 S. W. 
 
 Rep. 798; Campbell v, Carruth (Fla.), 13 Rep. 406. 
 
 Se. Rep. 432; Smith v. Newell (U. S. C. 7 Ohio River R Co. v. Schon (W. Va.), 
 
 C.), 86 Fed. Rep. 56. n S. E. Rep. 18. 
 
 4 Wilkeson Coal & Coke Co. v. Driver 8 Newton v. Louisville & N. R. Co. 
 
 (Wash ). 43 Pac. Rep. 889. (Ala.), 19 So. Rep. 19. 
 
 5 McDonald v, Bayne (Ind.), 16 N. E. 9 Muir v. Meredith (Cal.), 22 Pac. Rep< 
 
 Rep. 795 [1888]. 1080. 
 
373 APPLICATION OF DESCRIPTIONS. 546. 
 
 will make a complete description. 1 That part which is certain must prevail 
 over what is uncertain. 2 If the boundaries mentioned be inconsistent with 
 each other, those will be retained which best describe the intention manifested 
 on the face of the deed. 3 
 
 A deed to land which gives an incorrect description thereof by metes and 
 bounds, and also a correct description by lot numbers as shown on a map 
 referred to, is sufficient to pass the title, the incorrect description being 
 rejected. 4 
 
 Where a description of land in an execution levy was, ' ' the undivided ^ 
 of the following described land, to wit, the S. E. of the N. W. , and the 
 S. W. ^ of the N. E. , " while in subsequent proceedings the description 
 was, " the undivided | of the S. E. of the N. W. , and the S. W. J of 
 the N. E. ^, " it was held that the latter description meant the undivided ^ 
 of the S. W. of the N. E. , as well as the undivided of the S. E. \ of 
 the N. W. i, and that both descriptions were therefore identical and could 
 not mislead any one. 5 
 
 Every call in a description must be answered if it can be done, and none 
 is to be rejected if all the parts can stand consistently together; 6 but a deed 
 will always be construed according to the condition of things at the date 
 thereof, and in the light of facts known to and in the minds of the parties at 
 the time. 7 
 
 A deed describing the premises as certain lots as laid down upon a map 
 does not carry title to land the title of which became vested in the owner of 
 the lots, after the filing of the map, by the vacation of the street upon which 
 they abutted. 8 
 
 546. Insufficient, Imperfect, and Ambiguous Descriptions. A deed will 
 be void for uncertainty of description when the words employed to describe 
 a tract of land fail to show what tract was intended. 9 Premises upon which 
 a grant is to operate must be so described therein that they can be identified 
 and located. 10 ;< They must be so described therein," for it is well settled 
 that if a description is complete nothing will pass by a deed except what is 
 described in it, whatever the intention of the parties may have been. n 
 
 A description, "14 acres of land, a part of the northeast quarter of the 
 southwest quarter of a certain section, town, range, county, and state, ' ' was 
 
 1 Anderson v. Baughman, 7 Mich. 79; 7 Grogan v. Burling Mills, 124 Mass. 
 Johnston v. Scott, n Mich. 232. 390; Wiley v. Sanders, 36 Mich. 60; Mc- 
 
 2 Richer v. Barry, 34 Me. 116; Tewks- Connell v. Rathbun, 46 Mich. 305; Min. 
 bury ?'. French, 44 Mich. 102. eral Spgs. Mfg. Co. v. McCarty, 67 Conn- 
 
 s Gates v. Lewis, 7 Vt. 511. 279. 
 
 * State Sav. Bank v. Stewart (Va.), 25 S. 8 Sanchez v. Grace M. E. Church (Cal.), 
 
 E. Rep. 543. 46 Pac. Rep. 2. 
 
 5 Hoffman v. Buschman (Mich.), 55 N. 9 Holmes v. Straitman, 35 Mo. 293. 
 
 W. Rep. 458. 10 Coleman v. Manhattan Beach Imp- 
 derrick v. Hopkins, 10 Shep. (Me.) Co., 94 N. Y. 229. 
 
 217. u Thayer v. Fenton, 108 N. Y. 394, 
 
54-6. OPERATIONS PRELIMINARY TO CONSTRUCTION. 374 
 
 held insufficient, the particular part not being designated. 1 Land described 
 as ' ' lying on Laurel, reference being had to a deed from J. R. to me for a 
 more definite description," is too vague and uncertain without the introduc- 
 tion of the deed referred to. a 
 
 A conveyance of certain lands excepting 30 acres, where there is nothing 
 to show what particular acres were excepted, 3 or one which gives the metes 
 and bounds of the tract conveyed less certain lots already sold, without giving 
 the location and boundaries of the lots sold, is defective and insufficient. 4 
 The description must be such that one can, from and by it, go upon the land 
 and identify the premises as those conveyed by the deed. 5 
 
 A description which is defective will not be cured by reference to another 
 deed in which the description is no more definite. 6 A line described as 
 * ' beginning by the mouth of B. creek and running straight to the white oak 
 at the southwest corner of the lo-acre survey owned by plaintiff" was held 
 insufficient to identify the land. 7 
 
 A description of a road which makes it follow a specific line "as near as 
 practicable" does not locate a road anywhere; nor is the defect cured by 
 subsequent survey upon a definite line. 8 
 
 Where the map and description show that the calls for the boundary of the 
 grant are impossible calls; that the surveyor was not on the ground, and was 
 mistaken as to the locality of the natural objects on which he relied for 
 description; and that no surveyor can by those calls locate or identify the 
 land, the conveyance is insufficient. 9 
 
 Where the metes and bounds describing the land of a corporation utterly 
 fail to inclose any area whatever and are so uncertain as to make it impossible 
 to determine the territory of such corporation, an organization of municipal 
 government incorporated under such a description will be a nullity. 10 A judg- 
 ment ordering the sale of real estate " beginning at Pike street, on the east 
 side of York street, in this city, running thence N. 296^ feet, more or less," 
 does not sufficiently describe the property. 11 Deeds purporting to convey 
 land, but containing no description or designation thereof, are invalid, and 
 cannot be read in evidence. 12 
 
 If the description does not show the state and county in which the land 
 
 1 McRoberts v. McArthur (Minn.), 34 7 Harris v. Johnson (Ky.). 44 S. W 
 
 N. W. Rep. 903. Rep. 948 [1898]. 
 
 2 Reed v. Reed, 93 N. C. 462 [1885]. 8 Sonnek v. Minnesota Lake (Minn.), 
 
 3 Zundel v. Baldwin (Ala.), 21 So. Rep. 52 N. W. Rep. 961. 
 
 420; Halley v. Fontaine (Tex.), 33 S. W. 9 Scull v. United States, 98 U. S. 410 
 
 Rep. 260; Blakey v. Morris (Va.), 17 S. [1878]. 
 
 E. Rep. 126. 10 Enterprise v. State (Fla.).ioSo. Rep. 
 
 4 People v. Mariposa Co., 31 Cal. 196 740; Watervliet v. Colonie (Sup.), 50 N. 
 
 [1866]. Y. Supp. 487. 
 
 5 Daugherty v. Gates (Tex.), 35 S. W. "Meyer v. Covington (Ky.), 45 S. W. 
 
 Rep. 937. Rep. 769 [1898]. 
 
 6 Halley v. Fontaine (Tex.), 33 S. W. 12 Wilson v. Johnson (Ind. Sup.), 38 N. 
 
 Rep. 260. E. Rep. 38. 
 
375 APPLICATION OF DESCRIPTIONS. 
 
 is situated, the meridian to which the range should be referred, or whether 
 the township named in the description is north or south, it is insufficient for 
 title; 1 but a deed which describes land by section, township, and range, 
 without mentioning the meridian, county, or state, but which describes the 
 grantor as being of a county and state wherein he owned land answering the 
 description in the deed, has been held sufficient to pass title thereto. 2 A 
 deed purporting to convey "the southeastern corner" of a certain quarter- 
 section, or "the southwestern fractional part of the north one-half" of a 
 specified quarter-section, without any dimensions, quantity, or locations, is 
 void for uncertainty. 3 
 
 547. Surplusage in a Description will be Rejected. If the description 
 contain surplusage or more calls than are necessary for the proper location of 
 the land, or if it be duplicated, part of the calls may be ignored if the descrip- 
 tion will be complete without them. 4 When one of the courses of a survey is- 
 given wrongly, yet from the correct courses and distances which are given it 
 is possible to complete the description by metes and bounds, the deed will 
 not be void for uncertainty. 5 When, in a deed, land is described by metes 
 and bounds, one of the boundaries being given as "east 200 feet by other 
 land of said grantor on the passageway," and it appears that no passageway 
 in fact exists, the clause in respect thereto may be omitted. 6 
 
 If a part of a description is senseless and unmeaning, it will be rejected as: 
 surplusage if what remains will make the description certain. Thus where a 
 tract is described by metes and bounds giving the courses and distances, and 
 the southeast and west bounds of a tract are given with certainty, but the 
 closing line is given in a direction which would not close at all, the bearing 
 of the said line should be rejected, leaving the description to read, " thence to 
 the point of beginning." 1 
 
 If the description in a deed comprehends several particulars, all of which 
 are necessary to ascertain the land conveyed, they must all be proved; and if 
 unnecessary particulars are added which are not true, they will not vitiate the 
 deed. 8 
 
 548. A Particular Description will Control a General Reference or 
 General Description. If the land conveyed is described by reference to 
 
 x Hartigan v. Hoffman (Wash.), 47 4 Sullivan v. Collins (Col. Sup.), 39 Pac. 
 
 Pac. Rep. 217; Halliday v. Hess (111.), Rep. 334; Bray v. Adams (Mo. Sup.), 21 
 
 35 N. E. Rep. 380. S. W. Rep. 853; Stark v. Spaulding 
 
 2 Garden City S. Co. v. Miller (111. (Ky.), 39 S. W. Rep. 234. 
 
 Sup.), 41 N. E. Rep. 753. AnafsesMeev. 5 Robinson v. Allison (Ala.), 19 So. 
 
 Benedict (Mich.), 57 N. W. Rep. 175; Rep. 837. 
 
 Hitchcock v. Southern 1. & T. Co. (Tenn. 6 Treak v. Joslyn, 139 Mass. 94. 
 
 Ch. App.), 38 S. W. Rep. 588. 'Stevens v. Wait, 112 111. 544; Wood- 
 
 3 Morse v. Stockman (Wis.), 40 N. W. ward v. Nims, 130 Mass. 70 [1881]. 
 Rep. 679 [1889]; Tierney v. Brown 8 Worthington v. Hylyer, 4 Marr. R. 
 (Miss.), 5 So. Rep. 104 [1889]; Jones v. 196; Jackson v. Clark, 7 Johns. R. 217; 
 Brinkley (N. C.), 29 S. E. Rep. ,221 Wilson v. Riddick (Iowa), 69 N. W. Rep. 
 [1898]. 1039. 
 
549- OPERATIONS PRELIMINARY TO CONSTRUCTION. 3/6 
 
 known boundaries and monuments, the land so described cannot be restricted 
 or enlarged by a subsequent (general) reference to the title-deeds under which 
 the grantor holds, even if such reference is in the same deed. l An accurate 
 description of permanent boundaries capable of being ascertained will limit 
 the conveyance; and general references implying an addition to the premises 
 in possession of the grantor or grantee will not pass title to land outside of 
 the particular description. 2 * 
 
 It is a well-known rule of construction that a precedent particular descrip- 
 tion shall not be impaired by a subsequent general description. All parts 
 should be made to harmonize if possible, but if they cannot be made to accord 
 then the general description must give way to the particular one. 3 If the pre- 
 cedent particular description fails, if it is unintelligible and inapplicable, then 
 there is another rule of law; a rule that what is most material and most cer- 
 tain will control that which is less material and less certain. 4 That which is 
 clear and certain should always control that which is uncertain and senseless. 
 
 A clause at the end of a particular description by metes and bounds, 
 " meaning and intending to convey the same premises conveyed to me," is 
 merely a help to trace the title, and does not enlarge the grant. 5 
 
 549. A General Description will Answer if the Particular Description 
 Fail. If the whole description is sufficient to ascertain the estate intended to 
 be conveyed, and if the intention to convey that particular tract is clear 
 although an incorrect specific or particular description has been given, and 
 although this fails to agree with some other particulars in the description, yet 
 title to the tract shall pass in order that the intent of the parties may be 
 effected. 6 Thus a manifestly erroneous statement of a monument will not 
 defeat the deed if the remaining description will locate the land. 7 
 
 Where a line was described as ' * beginning at the sign -board on the north 
 line of the N. E. quarter of section 17, in township i, north, range 2, west, 
 where two roads described intersect, running thence," etc., such description 
 was held to be sufficient under the rule that the line need not be described 
 with technical certainty, but only so as to enable a surveyor, with the assist- 
 ance of points definitely named, to trace and designate it. 8 
 
 Where land is described by a general description, which is followed by 
 metes and bounds, and it is clear from the circumstances that the general 
 description is correct and that the description by metes and bounds includes 
 
 1 Morrow v. Will^rd, 30 Vt. 118. Laughlin v. Bishop, 35 N. J. Law 512 
 
 2 Thayer v. Fenton, 108 N. Y. 394. [1872]. 
 
 3 Wheaton v. Brick (N. J.), 8 Atl. Rep. 7 Benton v. Mclntire (N. H.), 15 Atl. 
 529 [1887]; Carter v. Chevalier (Ala.), 19 Rep. 413 [1888]. 
 
 So. Rep. 798. 8 Wells v. Rhodes (Ind.), 16 N. E. Rep. 
 
 4 Colter v. Mann, 18 Minn. 96. 830 [1889]; Adams v. Harrington, 14 N. 
 
 5 Brown v. Heard, 85 Me. 294. E. Rep. 603. 
 
 6 Colter v. Mann, 18 Minn. 96; Mc- 
 
 * See Sees. 611-615, infra. 
 
377 APPLICATION OF DESCRIPTIONS. 55O. 
 
 property not owned by the grantor and evidently not intended to be conveyed 
 by him, the general description will hold and control. 1 
 
 In tracing county lines the general rule is that " monuments control 
 courses, and a specific course will control a general course"; but where a 
 monument is uncertain a general course may be taken into consideration, in 
 connection with other facts and circumstances, for the purpose of ascertaining 
 and identifying such monument. 2 
 
 If a deed describe the land conveyed by courses and monuments and 
 boundary-lines of other tracts, and then declares that the description given is 
 to be according to a survey theretofore made by a person named, such survey 
 is incorporated into the deed and becomes a part of it, and the grantee 
 acquires title only to the land contained within the exterior boundaries of 
 such survey. 3 * 
 
 Under a conveyance of certain premises described (without specifying the 
 quantity or dimensions) as lying in an angle formed by certain streets, but 
 designated by a number not corresponding with the number of either of the 
 two lots in such angle, it will be presumed that the number 6i the lot was 
 misdescribed ; but such conveyance will not include both lots even though 
 they are annexed together. 4 
 
 550. Effect of Omissions in a Description. In a description by metes 
 and bounds the omission of one boundary-line is unimportant if there be 
 sufficient data in other parts of the deed to show the extent and limits of the 
 land conveyed. 5 The erroneous mention of an incident in the history of the 
 title to a piece of land is held to have no force, as against the mention of 
 metes, bounds, courses, distances, and visible monuments, when the question 
 is whether the deed is sufficient in form to convey the land intended. 6 
 
 Where parties claim through a deed which describes the property as a 
 certain part of a block, and also by the lot numbers, they are bound to take 
 notice of the contents of the deed, and of the fact that the property was known 
 by the lot numbers, even though no plat was recorded at the time of the con- 
 veyance. 7 
 
 For the purpose of locating land conveyed by metes and bounds resort 
 may always be had to extrinsic evidence; and when uncertainty or ambiguity 
 arises in the application of the description to the subject-matter of the con- 
 veyance, evidence of all the facts and circumstances of the transaction will be 
 received for the purpose of ascertaining the intention of the parties. The 
 
 1 Novotny v. Danforth (S. D.), 68 N. 5 Woodward v. Nims, 130 Mass. 70 
 
 W. Rep. 749. [1881]. 
 
 2 Hollenbeck TJ. Sykes (Colo. Sup.), 29 6 Sherwood v. Whiting (Conn.), 8 Atl. 
 
 Pac. Rep. 380. Rep. 80 [1887]. 
 
 3 Hudson v. Irwin, 50 Cal. 450 [1875]. 7 Marvin v. Elliot (Mo.), 12 S. W. Rep. 
 
 * Gordon v. Trimmier (Ga.), 18 S. E. 899. 
 Rep. 404. 
 
 * See Sees. 611-615, infra. 
 
55- OPERATIONS PRELIMINARY TO CONSTRUCTION. 3/8 
 
 sense in which the parties used the ambiguous term may be ascertained from 
 their declared intention. The bounds and monuments which prove to be 
 indistinctly or inaccurately set out in the deed may be established by proof 
 that they were recognized as such by the parties. It is only when the terms 
 of the deed as applied to the land conveyed create no ambiguity that evidence 
 of intention is excluded. l 
 
 If ambiguity or imperfections exist in the description so as to render it 
 doubtful or incapable of interpretation, reference to the general language as 
 well as to all parts of the deed will be competent to identify the property 
 intended to be conveyed. 2 What has been granted, the quantity specified, the 
 boundaries named, the survey, the surrounding circumstances, the situation 
 of the parties, and the object they had in view, are all competent evidence and 
 are to be considered in order to ascertain the true intention of the parties.* 
 No direct evidence of intention can be given to contradict a description in a 
 deed, but the court may allow any evidence that will put the court in the 
 position of the parties, so as to better understand the written description. If 
 a description can be interpreted with the aid of such testimony, it will stand 
 and the conveyance be good; if not, the deed will be void for uncertainty. 
 The courts have allowed evidence of surrounding facts and circumstances, 
 where there was a clear repugnance between two descriptions of the same 
 premises in the same deed, in order to ascertain which is most definite and 
 certain. 4 
 
 Where the parts of a description in a deed are inconsistent with each 
 other, effect should be given to those consistent and intelligible portions 
 which carry out the intentions of the parties, and what is repugnant thereto 
 may be rejected. 5 The decisions have gone so far as to hold that it was 
 not necessary to describe by boundaries, courses, or distances, or by refer- 
 ence to monuments, but to describe it only so that the property might be 
 identified. 
 
 In an action involving the location of a boundary-line between two city 
 lots, evidence that all the lots in the block are of uniform width, and that the 
 boundary claimed by defendant would render plaintiff's lot six feet narrower 
 than any other lot in the block, was held to sustain a verdict in plaintiff's 
 favor. 6 
 
 Chester Emery Co. v. Lucas, 112 382 [1887]; Piper v. Connolly, 108 111. 
 
 Mass. 424 [1873]; Waterman v. Johnson, 646 [1884]. 
 
 23 Pick. 261; Sargent v. Adams, 3 Gray *Wade v. Deray, 50 Cal. 376 [1875]; 
 
 72; Putnam v. Bond, 100 Mass. 58; Cook Cassidy v. Charlestown Savings Bank, 
 
 v. Babcock, 7 Cush. 526; Stoops v. Smith, 149 Mass. 325. 
 
 100 Mass. 63. 5 Raymond v. Coffey, 5 Oregon 132 
 
 2 Thayer v. Fenton, 108 N. Y. 394 [1873]; West v. Bretell (Mo.), 22 S. W. 
 
 [1888]. See Tyler on Boundaries 124, Rep. 705. Semblf, Johnson v. Williams 
 
 284, 285. (Sup.), 22 N. Y. Supp. 247. 
 
 3 Cavazos v. Trevino, 6 Wallace 773; 6 Goldsborough v. Pidduck (Iowa), 54, 
 
 Elliott v. Gilchrist (N. H.), 9 Atl. Rep. N. W. Rep. 431. 
 
379 APPLICATION OF DESCRIPTIONS. 551* 
 
 551. Certain Parts of Description Omitted may be Supplied. A descrip- 
 tion is not insufficient because it fails to state the locality, as the county or 
 state, if it contains some identifying circumstances or fact, or some connecting 
 link, to show where the land in question is situated. A description of prop- 
 erty as " all that part of the west half of the northwest quarter, section 19, 
 township 17, range 3 west, that lies south of Black Creek," neglecting to state 
 the county and state, was held to be sufficiently clear, and that Black Creek 
 introduced such a landmark as to create a latent ambiguity and therefore to 
 admit of evidence to show in what county and state Black Creek crossed the 
 section, range, and township named, and to show that the grantor claimed 
 and cultivated the same tract. l 
 
 The courts take judicial notice of the United States Government surveys, 2 
 as of the fact that there is but one range 5 in the survey of the United States 
 Government in what is known as the " Columbus Land District," and that 
 such range is east. 3 If the township and range be not designated in the 
 description and there be several sections in the county of the number given, 
 parol evidence may be introduced to show what section was intended, since 
 the ambiguity is latent. 4 The omission of the words " quarter of " in a deed 
 describing the land as "known as the northwest quarter of the northwest 
 
 , section 8, township 29, south of range 16 E., containing 40 acres," 
 
 will be supplied by construction, as a palpable omission. 5 
 
 Where a description that gave the street, the lot and block numbers, 
 and the county, omitted to state the town or city, it was held sufficient, proof 
 being allowed that there was no other street of the same name in any other 
 city or town in the county named, and that the grantor was, at the time of 
 the grant, owner of the lot demised. 6 A description, as the " west half of 
 lot i, N. E. (N. W. N. E.) sec. i F. 6 N. R. 6 ", is sufficient to identify the 
 land as the W. one-half of lot i in the N. E. one-fourth of said section, 
 though such lot is in fact the S. W. one-fourth of the N. E. one-fourth; the 
 letters in the parenthesis being immaterial to the description. 7 
 
 A course described as " 4i|- E. " instead of " N. 4i|- E. " was held 
 immaterial error when there was no uncertainty in the other courses, 
 distances, and monuments. 8 
 
 1 Black v. Pratt Coal & Coke Co. [1874]; Bird v. Perkins, 33 Mich. 28 
 (Ala.), 5 So. Rep. 89; Reisback v. Carson [1875]; Kile v. Town of Yellowhead, 80 
 (Wash.), 13 Pac. Rep. 618 [1887]; Co- 111. 208. But see People v. Mariposa Co., 
 lumbian Oil Co. v, Blake (Ind. App.), 31- Cal. 196 [1866]. And see Hurley v. 
 42 N. E. Rep. 234. See also Dorgan v. Brown, 98 Mass. 545; Stoops v. Smith, 
 Weeks (Ala.), 5 So. Rep. 581 [1889]. 100 Mass. 63; Chester Emery Co. v. 
 
 2 Reisback v. Carson (Wash.), 13 Pac. Lucas, 112 Mass. 435; Mead v. Parker, 
 Rep. 618 [1887]. 115 Mass. 413; Van Brunt v. Day, 81 
 
 3 Muse v. Richards (Miss.), 12 So. Rep. N. Y. 251. 
 
 821. 7 Perkins v. Bulklev (111. Sup.), 46 N. 
 
 *Halliday v. Hess (111. Sup.), 35 N. E. E. Rep. 733. 
 
 Rep. 380. 8 Carr v. Berkley (Mass.), 14 N. E. 
 
 5 Campbell v. Carruth (Fla.), 13 So. Rep. 746 [1888]; Warden v. Harris 
 Rep. 432. (Tex.), 47 S. W. Rep. 834. 
 
 6 Austrian z/. Davidson, 21 Minn. 117 
 
55 2 - OPERATIONS PRELIMINARY TO CONSTRUCTION. 380 
 
 Where a recorded notice of location, in its description of a claim, 
 erroneously referred to the " southeasterly" end of another claim, when the 
 claim had no such boundary, and described a distance of 400 feet as "4," 
 and gave the courses of a certain boundary-line as "northerly" and 
 " southerly," when the courses of such line were not true north and south, 
 and the notice correctly described the location with reference to a well-estab- 
 lished line of another claim, and with the aid of the location stakes the lines 
 of the claim could be easily ascertained by applying the description of the 
 record to the stakes and monuments, it was held that the recorded description 
 was sufficient. 1 
 
 If, in a deed, a line is described by reference to a rock with "a vein of iron- 
 ore, ' ' and if, where the deed was made, there was not a vein in the rock on 
 the line universally or generally known as "a vein of iron ore," (though not 
 in truth such a vein,) there was no such latent ambiguity in the deed as to 
 admit parol evidence to explain its meaning and give it a construction. It 
 is inoperative and void because the monument, without which the land 
 described cannot be found, does not exist. a 
 
 552, Land Described may be Shown to have Belonged to Grantor, In 
 a conveyance, a description of lands by section, township, and range, with- 
 out mention of the state, county, land-district, or government survey in which 
 the lands lie, may be aided by oral testimony showing that, when the convey- 
 ance was made, the grantor owned and resided on lands, in a given county and 
 in a certain state, which were known by the same numbers as those employed 
 in the conveyance. Aided by such proof, and in the absence of proof that 
 the grantor owned or claimed other lands falling within the same description, 
 it becomes the duty of the court to pronounce the conveyance valid. 3 A 
 memorandum of sale of " my right in B. 's (my father) estate" sufficiently 
 describes the property ; it being shown that B. owned only a homestead, which 
 he devised in equal shares to the vendor and vendee. 4 "All the land owned 
 by me " in a conveyance was construed to mean "all the land now owned by 
 me." 5 
 
 To determine the quantity, location, or identity of land, the court may 
 inquire into x all extrinsic facts that bear upon the subject when there is 
 ambiguity. 6 A mistake in the lot number may not render a deed void if it 
 can be shown that the grantor owned a lot designated by another number 
 which otherwise answers the description, and that he did not own the lot 
 named. Thus when he devised lot 6 in a certain section and township, when 
 he did not own lot 6, but did own lot 3, evidence thereof was admitted to 
 
 1 Smith v. Newell (C. C.), 86 Fed. Rep. 8 Chambers v. Ringstaff, 60 Ala. 140. 
 56 [1898]. * Ryder v. Loomis (Mass.), 36 N. E. 
 
 2 Cook v. Babcock. 7 Cush. 526; Cleve- Rep. '836. 
 
 land v. Flagg, 4 Cush. 76, 81; Cornell zv 5 Fitzgerald v. Libby (Mass.), 22 Reptr. 
 
 Jackson, 9 Met. 150; Putnam v. Bond, 613 [1886]. 
 
 100 Mass. 58; Chester Emery Co. v. 6 Paine v. Upton, 87 N. Y. 337. 
 Lucas, 112 Mass. 424 [1873]. 
 
38 1 APPLICATION OF DESCRIPTIONS. 553- 
 
 show that the testator had made a mistake and that lot 3 was intended 
 instead of lot 6. 1 A similar case is reported where the conveyance called for 
 lot 403 when the grantor did not own lot 403, but did own lot 406. It was 
 held a plain case of error on the face of the instrument, a tripping of the pen. 2 
 Another case holds that if the description applies to a certain tract of land the 
 deed cannot be reformed, so as to make it convey a different piece, on the 
 mere fact that the grantor at the time owned the latter and not the former 
 tract. 3 
 
 Courts have supplied an entire call apparently omitted, as where the 
 description read, " thence west 900 poles to county line, and with the same, 
 to point of beginning." The 9OO-pole line being parallel to the county line, 
 which was an east-and-west line, the court supplied the call " thence south to 
 the county line," and had it inserted after the words "900 poles." 4 An 
 apparent mistake in writing a description wherein "60 rods" was written for 
 " 1 60 rods" will not prevent the court from interpreting the deed as intended 
 by the grantor, where it is shown that such a construction is necessary 
 to make the description apply to the only land owned by the grantor in that 
 vicinity. 5 
 
 553, When Description Applies to Two Estates. A grant that applies 
 equally to two tracts may not fail for want of certainty if the evident inten- 
 tion of the parties can be ascertained by evidence. 6 The location may be 
 determined by evidence of the circumstances surrounding and connected with 
 the parties and the land at the time of the conveyance. 7 It seems that the 
 grantee may elect as to the one to which he will claim title, and the burden 
 is upon the grantor to show his ownership of two such tracts, and to show 
 that the instrument was intended to convey this or that particular one. 8 This 
 comes from a rule of construction that the language of an instrument is to be 
 construed most strongly against the person who first used the language, which 
 is usually the grantor. 9 
 
 Where the monuments established by a plat are those fixed by the govern- 
 ment survey, and those making the dedication in the actual location of the 
 lines of the plat included within the lines of private property a strip of land 
 
 1 Patch v. White, 117 U. S. 210. [1887]; Hurley v. Brown, 98 Mass. 545; 
 
 2 Kertz v. Hibner, 55 111. 514; Crooks Mead v. Parker, 115 Mass. 413. 
 
 v. Whitford, 47 Mich. 383, 8 East 149, 7 7 Scales v. Henderson (S. C.), 22 S E. 
 
 H. L. 364, 36 la. 674, 10 Amer. Law Reg. Rep. 724; Fudickar v. East Riverside 
 
 (N. S.) 93, 353- I". Dist. (Cal.), 41 Pac. Rep. 1024; 
 
 3 Kellogg v. Hastings, 70 111. 598 [1873]. Simpson v. Blaisdell, 85 Me. 199. 
 
 4 Hitchcock v. Southern I. & T. Co. 8 Lente v. Clark, supra. 
 
 (Tenn.), 38 S. W. Rep. 588; Woodward "Marshall v. Niles, 8 Conn. 369; Ryan 
 
 v. Nims, 130 Mass. 7o[i88i]. v. Wilson, 9 Mich. 262. For a case 
 
 5 Presnell v. Headley (Mo.), 43 S. W. where the contention was as to which 
 Rep. 378 [1897). See also Blount v. Ble- fork or branch of a stream was intended, 
 ker (Tex.), 35 S. W. Rep. 863. or which bore the name employed, in a 
 
 6 Clark v. Powers. 45 111. 283 [1867]. description, see Bassett v. Martin (Tex.), 
 
 See Lente v. Clark (Fla.), I So. Rep. 149 18 S. W. Rep. 587. 
 
554- OPERATIONS PRELIMINARY TO CONSTRUCTION. 382 
 
 which, according to the true location, is within the boundaries of the street, 
 the government monuments prevail. 1 
 
 A call "thence ... to a stake on the top of Looney's Ridge," followed 
 by a call "and with the same N. 88, E. 422 poles to a stake," was held to 
 require the last line to run with the top of the ridge, such natural boundary 
 prevailing over the courses and distances in case of conflict. 2 
 
 In an action in which the question was the correct location of the north- 
 east corner of section 3, it appeared that B., a surveyor, found what he 
 considered the corner-stone in a public road, which defendant contended was 
 on the section-line between sections 2 and 3, and that plaintiff contended 
 .such corner was about 25 rods fast of such stone. There was evidence that 
 .such road was not, and no evidence that it was, located on the section-line. 
 Held not error to refuse to charge that a long-established road is better evi- 
 dence of actual boundary settled by practical location than any survey made 
 after the monuments of the original survey have disappeared. 3 
 
 A description of a tract in a deed as composed of the parcels conveyed in 
 six different deeds of land lying on a certain creek cannot be aided by parol 
 vidence as to the identity of the parcels referred to, even if it would be com- 
 petent to offer six grants and prove that they were located on the creek 
 mentioned. 4 
 
 Parol evidence is admissible to locate a tree called for by a grant as the 
 beginning corner, at the northeast corner of the lot referred to in the grant, 
 instead of the southeast corner described therein, although it is not permissible 
 to contradict and change the call itself, but only the description of its 
 location. 5 
 
 A description of land in proceedings for its sale in an action by a creditor, 
 as ' ' running from the N. E. corner of the S. E. \ of section 2 1 due west to 
 the N. W. corner of the S. E. of section 21 to a stake, and from thence 
 south," is not ambiguous so as to authorize the admission of parol evidence 
 that there was no stake at the northwest corner of such quarter-section, but 
 that the stake intended was at the northwest corner of the east half of such 
 quarter-section . 6 
 
 Parol evidence is admissible to show what was really conveyed by a deed, 
 under the rule of law that courses and distances must yield to known objects. 7 
 
 554. Land Described by Familiar Name in Community. An estate or 
 building described by some name well known and notorious will be sufficient 
 if its limits can be exactly defined; e.g., a building described as "On the 
 
 1 Brown v. City of Carthage (Mo. Rep. 152. 
 
 Sup.), 30 S. W. Rep. 312. 5 Davidson v. Shuler (N.C.), 26 S. E. 
 
 2 Clarkston v. Va. C. & I. Co. (Va.), Rep. 340. 
 
 24 S. E. Rep. 937. See Gentile v. 6 ^Donehoo v. Johnson (Ala.), 21 So. 
 
 Crossan (N. M.), 38 Pac. Rep. 247. Rep. 70. 
 
 3 Woodbury v. Venia (Mich.), 72 N. W. 7 Broaddus v. Eubanks, 18 Ky. L. Rep. 
 
 Rep. [1897]. 742, 38 S. W. Rep. 134. 
 
 *Hemphill v. Annis (N. C.), 26 S. E. 
 
383 A P PLICA TION OF D E SCRIP TIONS. 
 
 corner of Main and Monroe streets in Peoria, known as Post-office Corner"; 1 
 or premises designated as "Pelican Beach near Barren Island " ; 2 or described 
 as " lot 36 in the town of Webb," in a deed dated at Webb, Miss., describing 
 the grantor as being of Tallahatchie County. 3 
 
 A description by metes and bounds is not necessary where the premises 
 are well known by name. 4 If the property be described by numbers or by 
 metes and bounds, extraneous and parol evidence may be admitted to ascer- 
 tain whether a particular piece of property,- definitely described and ascer- 
 tained, constitutes a "margin " or " basin." 5 
 
 To determine whether or not the renting of a house included the ground- 
 floor, which was a store, 6 evidence of extrinsic facts should be admissible to 
 ascertain whether the parties intended to include the store in the term 
 " house." If knowledge of intention will aid in interpreting the words used, 
 it should be admitted. 7 
 
 Parol evidence is admissible to show that at the time of the conveyance a 
 particular line referred to in a deed was generally recognized by the name 
 used in the deed and in the community. 8 
 
 554a. Land Described as a Part of a Whole.* In an agreement to 
 convey a piece of land described as " five acres, lot 3, section 23," etc., there 
 being nothing to show which five acres were intended, it was held to be a 
 case in which evidence could not be introduced to supply the defect in the 
 description. 9 
 
 A deed describing the land conveyed merely as so many acres to be taken 
 by the grantee from a larger tract, wherever he may select, is not void for 
 uncertainty; 10 but one describing land as " two-thirds " of certain lots, with- 
 out identifying what particular two-thirds was intended, is void. 11 
 
 A description of "1377 acres of land, situated in the county of Young, 
 in the state of Texas, surveyed and patented by virtue of my head-right 
 certificate," is not void for uncertainty on its face, as, so far as the deed dis- 
 closes, the entire tract may have contained only 1377 acres. 12 A description 
 in a deed as the "west part, N. E. quarter, N. W. quarter, twenty acres," 
 of a certain section, is sufficiently definite, the words "twenty acres" show- 
 
 v. Puterbaugh, 108 111. 602. 58 N. W. Rep. 590; Grier v. Puterbaugh, 
 
 'Coleman v. Manhattan Beach Imp. 108 111. 602 [1884]. 
 
 Co., 94 N. Y. 229 [1883]. 9 Nippolt v. Kammon (Mich.), 40 N. W. 
 
 3 Wilkerson v. Webb (Miss.), 23 So. Rep. 266 [1889]. 
 
 Rep. 1 80 [1898]. 10 Dohoney v. Womack (Tex.), 20 S. W. 
 
 *Lenning's Ex'rs v. White (Va.), 20 S. Rep. 950, affirming 19 S. W. Rep. 883. 
 
 E. Rep. 831. "Mutual B. & L. Assn. v. Wyeth 
 
 5 Indiana Cent. Canal Co. v. State, 53 (Ala.), 17 So. Rep. 45; Voorheis v. 
 Ind. 575 [1876]. Eiting (Ky.), 22 S. W. Rep. 80; Nelson v. 
 
 6 Sargent z/. Adams, 3 Gray 72; Chester Abernethy (Miss.), 21 So. Rep. 150; 
 Emery Co. v. Lucas, 112 Mass. 435; Mead George v. Bates (Va.), 20 S. E. Rep. 828. 
 v. Parker, 115 Mass. 413; i T. R. 791. "Slack v. Dawes (Tex.), 22 S.W. Rep. 
 
 7 Stoops v. Smith, 100 Mass. 63. 1053. 
 
 8 Hanlon v. Union Pac. Ry. Co. (Neb.), 
 
 * See Sec. 546, supra, and Sec. 558, infra. 
 
555- OPERATIONS PRELIMINARY 7^0 CONSTRUCTION. 384 
 
 ing the words " west part " to mean " west half." l There is no objection to 
 a description of land as the " south one-fourth " or " the south 10 acres " of 
 a government subdivision. 2 A description by metes and bounds less 25 acres 
 off the south side was held to require that a parallelogram with the south line 
 as the base be deducted. 3 A deed which conveys "78 rods off the south 
 side of the northwest quarter " of a section describes a certain fractional part 
 of the quarter, 78 rods wide, on the south side, extending along the entire 
 length. 4 
 
 A description reading, "a lot 60 feet wide on M. street and 128.90 feet 
 deep, being the north end of lot 293 in the village of M.," is sufficient. 5 
 
 In a deed of the "east half" of a fractional quarter-section, the words 
 " east half" refer to the government subdivision of the quarter-section, and 
 not to a subdivision of the quarter-section by a line dividing it into two equal 
 parts. 6 
 
 If a conveyance of an undivided half of a tract of land, identified as coming 
 from a particular conveyance, be made, the grantee cannot by this description 
 take the other half even though the half so identified proves to be subject to 
 a mortgage. 7 
 
 " Parcels " as applied to land was held to mean "portions." 8 
 
 555. Insufficient Description Cured by Reference to a Map or Deed. 
 Descriptions that would be insufficient are frequently rendered certain by 
 reference to some other deed, map, or instrument of record ; but such refer- 
 ence should be explicit, and if the conveyance is to be according to the map 
 or description contained in some earlier record, the deed should make that fact 
 clear. A general reference after a particular description goes for naught. 
 Conveyances are frequently made certain by reference to the land as being the 
 same as was conveyed to the grantor by some prior conveyance. Such refer- 
 ences frequently correct mistakes made in transcribing the title-deeds. A 
 deed describing property conveyed as " all that certain interest in the landed 
 estates of H. and M., deceased, to which we may be entitled by gift, devise, 
 or descent, or otherwise," is sufficient. 9 
 
 When the land in controversy, described in a sheriff's deed, was incapable 
 of identification without reference to a map, and there were two maps which 
 
 1 Soukup v. Union Inv. Co. (Iowa), 51 Rep. 615. And see People v. Storms, 
 
 N. W. Rep. 167. 97 N. Y. 364 [1884]. 
 
 2 McCartney v. Dennison (Cal.), 35 5 H9ban v. Cable (Mich.), 60 N. W. 
 Pac. Rep. 766; Owen -v. Henderson Rep. 466. 
 
 (Wash.), 47 Pac. Rep. 215; Bassett v. 6 Turner v. Union Pac. Ry. Co. (Mo. 
 
 Sherrod (Tex.), 35 S. W. Rep. 312. But Sup.), 20 S. W. Rep. 673. 
 
 see Nelson z>. Abernethy (Miss.), 21 So. 7 Bailey v. Knapp (Me.), 9 Atl. Rep. 
 
 Rep. 150. 356 [1887]. 
 
 3 Watson v. Crutcher (Ark.), 19 S. W. 8 Johnson v. Sirret (Sup.), 31 N. Y. 
 Rep. 98; Gress Lumb. Co. v. Coody (Ga.), Supp. 917. 
 
 21 S. E. Rep. 217; Tierney v. Brown 9 Harrisz/. Broiles (Tex.), 22 S. W. Rep. 
 
 (Miss.), 5 So. Rep. 104 [1889]. 421. 
 
 *Cobb . Taylor (Ind. Sup.), 33 N. E. . 
 
385 A PPL ICA TION OF DESCRIP TIONS. 5 5 5 
 
 answered the description equally well, neither of which was ever filed with the 
 county recorder, testimony of the sheriff as to which map he referred to in 
 the deed was held inadmissible. 1 An erroneous or uncertain description in a 
 notice of a judicial sale, or in a deed given pursuant thereto, will avoid the 
 sale. 2 An exception, in a deed, which reads, " Except the dower of fifty acres, 
 as fully described in a deed given to C. B. Co." was held not void, as refer- 
 ence could be had to the deed of C. B. Co. 3 A deed describing the land 
 conveyed as all the land which the grantor owned, or in which he had an 
 interest, in a particular county, is sufficient, as to description, as to all land 
 of the grantor in such county. 4 * 
 
 The words, "all my right, title, and interest in and to all real estate 
 situated in Hope, Warren, and Union," convey the grantor's whole estate 
 situated in the towns named; and a clause following, "meaning to convey 
 all my right, title, and interest in the real estate formerly occupied by me," 
 does not limit the grant to such premises as the grantor had occupied, but 
 only insures their inclusion in the grant. 5 
 
 Land is sufficiently described in a conveyance if the deed refers for identi- 
 fication to another deed, map, or other instrument^ specifically mentioned 
 therein, which contains an accurate description of the property sold. 6 j" An 
 imperfect description is often cured by reference to another deed in which the 
 land is correctly described. 7 
 
 A deed describing land as the grantor's " right, title, and interest in the 
 estate of J. W. B., purchased by me at administrator's sale," was held not 
 void for want of sufficient description when read in connection with the deed 
 from the administrator to the grantor. 8 Nor was a deed held void for want 
 of sufficient description when it described a conveyance as "ot all the right, 
 title, and interest in and to all the lands purchased from R. as may more fully 
 appear by the legal transfer of the sale " ; 9 or as " the tract left me by P. and 
 adjoining lands of H. S. and others containing 180 acres more or less " ; 10 or 
 
 ^adwalder v. Nash (Cal.), 14 Pac. Allen v. Raphael (Tex.), 31 5. W. Rep. 
 
 Rep. 385 [1887]. 449. And see Knowles v. Bean. 87 Me. 
 
 2 See Herrich v. Merritt (Minn.), 33 N. 331; Steelman v. Atl. City Sew. Co., 3$ 
 
 W. Rep. ; Helmer v. Rehm (Neb.), 15 Atl. Rep. 742; Perry v. Scott (N. C.), 14 
 
 N. W. Rep. 344; Burrows v. Gibson S. E. Rep. 294. 
 
 (Mich.), 3 N. W. Rep. 293; Chalmers v. 5 Hobbs v. Payson, 85 Me. 498. 
 
 Brown (Tex.), 2 S. W. Rep. 518; Allday 6 Rupert v. Penner (Neb.), 53 N. W- 
 
 v. Whittaker (Tex.), I S. W. Rep. 794; Rep. 598; Jay v. Michael (Md.), 35 Atl 
 
 Pfeiffer v. Lindsay (Tex.), I S. W. Rep. Rep. 322; Campbell v. Morgan (Sup.). 
 
 265. 22 N. Y. Supp. IOGI. 
 
 'McAfee v. Arline (Ga.), 10 S. E. Rep. 7 Leake v. Caffey (Miss.), 19 So. Rep- 
 
 441; Sulphur Mines Co. v. Thompson's 716. 
 
 Heirs (Va.), 25 S. E. Rep. 232. 8 Vineyard v. O'Connor (Tex.), 35 S- W- 
 
 4 Brigham v. Thompson (Tex.), 34 S. Rep. 1084. 
 
 W. Rep. 358; Curdy v. Stafford (Tex.), 30 9 Clipper v. Sage (Tex.), 37 S. W. kep 
 
 S. W. Rep. 551; Cox v. Hart, is Sup. Ct. 363; Graham v. Botner (Ky.), 37 S. W. 
 
 Rep. 962; * Threadgill v. Bickerstaff Rep. 583. 
 
 (Tex.), 29 S. W. Rep. 757: Hermann v. 10 Walker v. Moses (N.C.), 18 S. E. Rtp. 
 
 Likens (Tex.), 39 S. W. Rep. 282; Me- 339. 
 
 * See Sec. 552, supra. \ See Sec. 549, supra. 
 
55^. OPERATIONS PRELIMINARY TO CONSTRUCTION-. 386 
 
 as " acres out of the S. W. side of the C. N. Bassett survey of 292 and 
 
 640 acres in Brown County " ; * or as " being the land that was willed to me 
 ,by my father " ; 2 or as "one-half of all one's estate " ; 3 or as a patent of all 
 the land within certain boundaries, "excluding all those surveys to which 
 there is now a lawful title." 4 
 
 A clause in a deed, at the end of a particular description of the premises 
 by metes and bounds, "meaning and intending to convey the same premises 
 conveyed to me," etc., does not either enlarge or limit the grant. 5 * 
 
 Where the description in a deed refers to a map, and describes the property 
 by metes and bounds, starting from a certain stake, and where it is shown 
 that the map is inaccurate and not made from an actual survey, that it has 
 no scale or starting-point, and does not represent the territory which it pur- 
 ports to include, the true location of the land which the grantor intended to 
 convey and the grantee to purchase may be shown by parol evidence; the 
 reference to the map being treated as surplusage. 6 
 
 Where a deed for the transfer of land misdescribes the tract intended to 
 be conveyed, and the grantors execute a second deed to correct the descrip- 
 tion of the first, both instruments are admissible to show the ownership of the 
 land in the grantee. 7 
 
 556. Grantee or Devisee Uncertain. If there be uncertainty as to which 
 of the persons is the grantee or devisee, testimony may be given as to the 
 grantor's acquaintance, relationship, etc., to the parties to ascertain which of 
 the parties was intended. 8 This is true only when the description applies 
 equally to both persons; if it applies exactly to one person and imperfectly 
 to another, then no evidence will be admissible. The grant will go to the 
 party who answers best the description. 9 If a devise be a gift to a society for 
 charitable purposes and the description apply to two different societies equally, 
 it may be divided between the two, since the gift was for a certain object and 
 that object will be accomplished thereby. 10 
 
 A deed of land known as the " W. Homestead/' 200 acres, more or less, 
 bounded by the lands of certain persons named, "and of others," maybe 
 explained by the grantor so as to identify the :and and show the names of 
 the " others," adjoining owners. 11 
 
 Bassett v. Sherrod (Tex.), 35 S. W. 6 Cleveland v. Choate (Cal.), 18 Pac. 
 
 Rep. 312. But see Edens v. Miller (Ind.), Rep. 875 [1888]. 
 
 46 N. E. Rep. 526. 7 Arn v. Mathews (Kan.), 18 Pac. Rep. 
 
 2 Beaty v. Dozier (Ky.), 34 S. W. Rep. [1888]. 
 
 524; Blakely v. Quinlan (Ky.), 39 S. W. 8 Grant v. Grant, 5 C. P. 727. 
 
 Rep. 513. 9 McKilvert's Trusts (Eng.), 7 Ch. 170; 
 
 3 Roehl v. Haumeier (Ind.), 15 N. E. Waring v. Ayers, 40 N. Y. 357. And see 
 
 Rep. 345 [1888]. 27 W. Rep. 392. 
 
 4 Ballowe v. Hillman (Ky.), 37 S. W. 10 McKilvert's Trusts (Eng.), 7 Ch. 170. 
 
 Rep. 950. n Rapley v. Klugh (S. C.),i8 S. E. Rep. 
 
 6 Smith v. Sweat (Me.), 38 Atl. Rep. 554 680. 
 [1897]- 
 
 * See Sees. 547-549, supra. 
 
387 APPLICATION OF DESCRIPTIONS. 558. 
 
 557. Intention of Parties will Prevail if it can be Ascertained from 
 D ee ci $ In interpreting descriptions of land conveyed, it should be borne in 
 mind that it is the intention of the parties as expressed in the conveyance that 
 will prevail. If the intention be clear, it will hold even though the parties 
 have given an incorrect specific description. 1 If the description be sufficient 
 to ascertain the estate intended to be conveyed, although the estate does not 
 agree with some of the particulars in the description, yet it will pass by the 
 conveyance, that the intent of the parties may be effected. 2 
 
 No mistake in the description of the land conveyed will vitiate the deed 
 if the description be sufficient to ascertain the land intended to be conveyed, 
 although the land does not agree with some of the particulars in the descrip- 
 tion. 3 Thus it frequently happens that courses and distances do not agree 
 with the monuments referred to, and that mistakes occur as to the ownership 
 of the land on which the granted premises abut. In all such cases the courses 
 and distances will be controlled by the monuments, and other mistakes will 
 be disregarded if the whole description be such as to ascertain the intention 
 of the parties with reasonable certainty. 4 
 
 Where a deed conveying land " bounded and described according to " a 
 certain survey does not call for a river, but calls for a line run between certain 
 points designated by the surveyor, as on the bank of a navigable river, but 
 where it appears that the lines of such survey excluded flats between high- 
 water and low-water marks, evidence aliunde is admissible that the bank 
 referred to was an artificiardike; that the grantee had notice that the grantors 
 reserved the flats; that the grantors refused to execute a deed expressly con- 
 veying the flats; and that the sale was expressly subject to a survey, such 
 evidence tending to show that the flats were excluded, whatever may be the 
 presumption from the deed. 5 
 
 558. When Evidence of Intention of Parties is Admissible. In general 
 no direct evidence of intention will be admitted to render a description 
 certain; and if extrinsic evidence of the attendant circumstances of the grant 
 or devise, of the relations of the parties, and of the object in view will not 
 render the description certain, then it must fail for insufficiency. If ambiguity 
 exists, the court will inquire into all extrinsic facts that bear upon the subject 
 to determine' the parties, or the quality, quantity, location, or identity of the 
 subject-matter. If the uncertainty be so evident as to render the interpreta- 
 tion and understanding of the description hopeless, then the court will declare 
 it void for uncertainty. Where there is a manifest mistake in the calls of a 
 deed or patent, the plat and certificate of survey may be referred to to deter- 
 mine the boundary. 6 
 
 1 Worthington v. Hilyer, 4 Mass. 196. 410 [1839]. 
 
 2 Bosworth v. Sturtevant (Mass.), 2 5 Palmer v. Farrell (Pa.), 18 All. Rep. 
 Cush. 392; Pierce v. Brown, 24 Vt. 165 761. 
 
 [1852]. Patrick v. Spradlin (Ky.), 42 S. W. 
 
 8 Worthington v. Hilyer, 4 Mass. 196. Rep. 919 [1897]. 
 
 * Clark v. Munyan (Mass.), 22 Pick. 
 
559- OPERATIONS PRELIMINARY TO CONSTRUCTION. 388 
 
 In another case, in which a piece of land was described as the N. W. 
 quarter, section 32, which should have read the S. E. quarter, section 33, 
 evidence was offered by the scrivener that the testator told him to write it 
 N. W. quarter, section 33, and that he had made the mistake, and it was held 
 that this was direct evidence of intention and was not admissible. You may 
 omit certain parts if it leaves the description complete, but you may not add 
 to or change the written instrument. 1 Statements of the scrivener of the 
 deed, as to what the parties directed* him to do at the time of drawing the 
 deed, are not admissible to show which of two lots of land was intended by 
 the description. 2 A mistake in a description which is common to the parties 
 and to the scrivener, by reason of which land intended to be mortgaged was 
 imperfectly described, was held to be a mistake of fact and not of law. 3 
 Extrinsic evidence is always admissible to explain a deed or sealed instrument, 
 but extrinsic evience to vary or change a deed is not admissible. In a descrip- 
 tion of land by monuments as "to the mountain, or parallel with the moun- 
 tain," where several lines could be located, the court said it was impossible 
 to explain the deed acceptably. It was admitted that if the shortest distance 
 between the two points were adopted, only one point could be determined. 
 The higher court held the line to a mountain to be the shortest line. It was 
 decided upon a principle of construction in this case and not upon the 
 evidence. The document had a clear meaning, and therefore no amount of 
 evidence could change it. 4 
 
 559, Conveyances Not Located Give Undivided Interest, The Sescrip- 
 tion must be so certain that the property conveyed can be identified without 
 the aid of extrinsic evidence. 5 A deed of a certain number of acres of a tract 
 described is not void for uncertainty, but conveys a proportionate undivided 
 interest; 6 but a conveyance in fee of " the undivided fourth" of certain lands 
 was held uncertain. 7 A deed describing the land as all the undivided interest 
 which the grantor had in 30 acres out of a certain survey was held 
 insufficient. 8 
 
 A sheriff's deed describing the land as "426! acres of land out of the 
 S. W. side of the C. N. Bassett survey, No. 292, of 640 acres, in Brown 
 county," was held void for want of sufficient description. 9 If no attempt be 
 
 T KurtS v. Hibner, 55 111. 514. But see 5 Sulphur Mines Co. v.' Thompson's 
 
 Guardhous v. Blackburn, L. R. I P. & Heirs (Va.), 25 S. E. Rep. 232; Lowe v. 
 
 D. 109; Drew v. Smith, 46 N. Y. 204-210. Harris (N. C.). 17 S. E. Rep. 539; Rich- 
 
 2 Madden v. Tucker, 46 Me. 367 [1857]; ardson v. Pavell (Tex.), 198. W. Rep. 
 
 Riggs v. Myers, 20 Mo. 439. leading case. 262; Mizell v. Ruffin (N. C.), 18 S. E. 
 
 Contra, Creasey v. Alvprson, 43 Mo. 13- Rep. 72. 
 
 21, where evidence was admitted to show 6 Linnartz v. McCulloch (Tex.), 27 S. 
 
 what land the testator owned, and as to W. Rep. 279. 
 
 what testator intended. See Fitzgerald 7 Ford v. Unity Ch. Soc. (Mo.), 25 S. 
 
 v. Libby (Mass.), 22 Reptr. 613 [1886]. W. Rep. 394. 
 
 8 Whipperman v. Dunn (Ind.), 24 N. E. 8 Gallagher v. Rahm (Tex.), 31 S. W. 
 
 Rep. 1045 [1890!. Rep. 327. And see Steelman v. Atl. City 
 
 *Best v. Hammond, 55 Pa. St. 409. S. Co. (N. J.), 38 Atl. Rep. 742. 
 
 And see Black v. Bachelder, 120 Mass. 9 Bassett v. Sherrod (Tex.), 35 S. W. 
 
 171. Rep. 312. 
 
389 APPLICATION OF DESCRIPTIONS. 5^1. 
 
 made to locate the land, but the conveyance be a deed or devise of a certain 
 number of acres out of a larger tract, it may pass an undivided interest in the 
 entire tract. 1 
 
 Where a deed describes the land conveyed as all of a certain league, 
 excepting therefrom certain tracts, and the tracts excepted cannot be located, 
 the deed is void for uncertainty. If it convey a certain number of acres of 
 the unsold part of a certain league, to be a square form, or as near thereto as 
 practicable, beginning at a certain place, and it is impossible to locate a tract 
 of such shape without including therein tracts previously sold, the deed is 
 void for uncertainty. 2 
 
 560. Signs, Symbols, and Abbreviations in Descriptions. Descriptions 
 that are in language and signs peculiar to engineers and surveyors, and which 
 have been incorporated into a deed, are not void for uncertainty if they can 
 be identified and located by a competent surveyor with reasonable certainty, 
 either with or without extrinsic evidence. 3 
 
 If the language employed in the instrument be technical, evidence may be 
 introduced to interpret or explain the meaning of the words, signs, abbrevia- 
 tions, or diagrams employed. 4 Evidence of custom and usage is also 
 .explanatory evidence and will be admitted, as, e.g., the customs of surveyors 
 or of localities. 5 Thus a description of land as " S. %, ex. W. 12 rods of 
 E. 40 rods, of N. -^ and N. 10 rods, S. 13 rods, of E. 28 rods of N. -j- of 
 N. W. of sec. 23, etc., 74 T Vfr acres," was held sufficient, and one as 
 " N. side N. S. E., N. W. 10 acres sec 8. T. 23 R. 10, quantity sold 10 
 acres," was held not void for uncertainty. 6 The introduction of evidence to 
 show that "degrees" should have been written "perches" in a deed has been 
 denied. 7 
 
 Figures printed across a street on a map, without any sign to indicate 
 what the numbers stand for, sufficiently designate the width of the street if the 
 scale of the map shows that the number was intended to represent feet. 8 
 
 561. Judicial Notice of Meaning of Abbreviations, etc. Courts will 
 often take judicial notice of the meaning of such initials and the abbreviations 
 used, without proof; and of lines and subdivisions, their position and loca- 
 tion with reference to other lots, subdivisions, and lines; and of the fact that 
 the south line of a section and the south line of a township are one and the 
 same line, that there is no township of a certain number south in the county, 
 and that therefore the township referred to is north. 9 They have also taken 
 
 1 Byrn v. Kleas (Tex.), 39 S. W. Rep. 529 [1887], And see Tierney v. Brown 
 980. (Miss.), 5 So. Rep. 104 [1889]; Adams v. 
 
 2 Dwyre z/. Speer (Tex.), 27 S. W. Rep. Harrington (Ind.), 14 N. E. Rep. 603 
 585. [1888]. 
 
 'Lawt/. People ex ret., 268. 7 Clarke v. Lancaster, 36 Md. 196 [1872]. 
 
 4 Best's (Chamb.)on Evidence 231. 8 Gaffney v. City of S. F., 72 Cal. 146 
 
 5 Best's (Chamb.) on Evidence 231. See [1887]. 
 
 Black v. Bachelder, 120 Mass. 171. 9 Kile v. Town of Yellowhead, 80 111. 208 
 
 6 Taylor v. Wright (111.), 13 N. E. Rep. [1875]. 
 
5^2. OPERATIONS PRELIMINARY TO CONSTRUCTION. 3QO 
 
 notice of the fact that the magnetic needle varies from the true north. 1 
 
 Judicial notice has been taken of facts in connection with boundaries, 
 geographical subdivisions, names of counties, cities, etc., and in connection 
 with navigable waters. 2 
 
 562. Poor Spelling and Grammatical Errors in Description. Poor 
 spelling and grammatical inaccuracies cannot render a description insufficient 
 if the clear and evident understanding of the parties can be ascertained. 
 Thus where a deed described the land conveyed as " a biece of land aboot 100 
 feet long or wide," and further described it by metes and bounds, and the 
 land was at the date of conveyance fenced and known to the purchaser, the 
 description as to metes and bounds controls the statement as to quantity. 3 
 
 Parol evidence is admissible to show that the name " Henry Pulling," 
 designating the beneficiary in a grant of land, and the name " Henry Pullen," 
 designating the grantor in a deed of the same land, described one and the 
 same person. 4 
 
 1 Bryan v. Beckley, Litt. Sel. Cas. Arch. Jurlsp., 8g2a; Best's Evidence 
 
 (Ky.) 91. (Chamb.-Ed.) 262. 
 
 2 'i2 Amer. & Eng. Ency. Law 174. See 'Thompson v. Sheppard (Ala.), 5 So. 
 
 judicial notice as to differences of time, Rep. 334 [1889]; Sloan v. Thompson 
 
 navigability of streams, variations of (Tex.), 23 S. W. Rep. 613. 
 
 needle, telephones, etc., 12 Amer. & * Hicks v. Ivey (Ga.), 26 S. E. Rep. 68. 
 Eng. Ency. Law 196, a</Wait's Engin. & 
 
CHAPTER XXX. 
 DESCRIPTION. CONFLICT OF CALLS. 
 
 571. Governing Factors in Description That which is Most Certain 
 will Control. Different parts of a description are sometimes in conflict and 
 irreconcilable, and it becomes a question of law as to which shall predomi- 
 nate. Numerous rules of construction have been laid down, but probably 
 none is more firmly established than that monuments control all other parts. 
 This rule is founded upon the general rule of construction that "that which 
 is most certain should control " ; or in other words, " When there is conflict 
 between descriptions in a deed, that description is to be adopted which is the 
 least likely to be affected by mistakes." l If both descriptions of the deed 
 are of equal authority, that one which is most favorable to the grantee must 
 be adopted. 2 The reason and justice of this rule are explained in the numer- 
 ous opinions delivered from the bench and which have been handed down 
 from the earliest records. The rule that what is most material and certain 
 shall control that which is less material and uncertain is supported by 
 common sense. 3 
 
 The ordinary variations of the needle by local attraction, the imperfec- 
 tions of the instruments used in surveying, or unskillful ness in their use, the 
 inequalities of the ground, the expansion and contraction of tapes and chains 
 due to heat and cold, the wearing and stretching of the joints of chains, are 
 all elements of error and uncertainty which do not belong to monuments and 
 which in the estimation of courts make courses and distances secondary to 
 fixed monuments. If to these considerations we add the ignorance or care- 
 lessness of the scrivener in expressing the meaning of the parties, which is 
 often apparent on the face of a deed, we shall find that the acts of the parties 
 in pointing out, running, marking, or locating a line are more likely to dis- 
 
 l Vance v. Fore, 2 4 Cal. 437 [1864]; New Me. 169; Benedict v. Gaylord, II Conn. 
 
 York&T. Land Co. v. Votaw, 14 Sup. 333; Jackson v. Camp, i Cowen 605; 
 
 Ct. Rep. i. Jackson v. Wendell, 5 Wend. 142; Fen- 
 
 | Vance v. Fore, 24 Cal. 436 [1864]. ley v. Flowers (Tex.), 23 S. W. Rep. 
 Bowman v. Farmer, 8 N. H. 402; Doe 749; Raymond v. Coffey, 5 Oregon 132; 
 v. Thompson, 5 Cowen 371; Colter v. i Greenleaf on Evidence, 301; 3 Wash- 
 Mann, 18 Minn. 96 [1871]; Myers v. burn on Real Property 344-353. 
 Ladd, 26 111. 414; Lincoln v. Wilder, 29 
 
 391 
 
; 57 2 ' OPERATIONS PRELIMINARY TO CONSTRUCTION. 392 
 
 close their intention as to where the line should be, when the deed was given, 
 than courses or distances put down on paper. l 
 
 When the boundaries of land are fixed, known, and unquestionable, the 
 monuments must govern although neither courses nor distances, nor the com- 
 puted area, correspond. Because of errors in surveying instruments, varia- 
 tions of the needle, and other causes surveyors often disagree with respect to 
 courses. The same observations apply to disagreements arising from the 
 inaccuracies of measures or of the party measuring; and computations made 
 from the field operations are often erroneous. Fixed monuments remain; 
 about them there should be no uncertainty, and what may be uncertain must 
 be governed by that which is fixed. 
 
 In all cases of contradiction between the parts of a description, that 
 'element will control about which there is the least likelihood of mistake. 2 
 
 572. The Intention of Parties will Prevail. Though the rule that 
 monuments govern courses, distances, and acres is generally the accepted prin- 
 ciple of construction and is almost universal, yet it is modified and controlled 
 by the evident intention of the parties. If the facts gathered from the instru- 
 ment show conclusively that the parties intended some particular or inferior ele- 
 ment to control, the rule must give way, that such intention may be carried 
 out. 3 The first inquiry, then, in construing a deed is, "What was the intention 
 of the parties? " This is to be ascertained primarily from the language of the 
 deed. The court will not travel out of the four corners of the paper, if the 
 instrument affords a clear and certain interpretation; but if the intention be 
 doubtful, then the judge may at his discretion admit extrinsic evidence to 
 assist ir* the full understanding of the parties' relations. 4 If a description is 
 so clear, unambiguous, and certain that the intention of the parties may be 
 gathered from its terms, it will control. The object of the law is to ascertain 
 and discover the intention of the parties, and, when this can be done, to carry 
 the intention into effect. 5 It is the intention, when ascertained, which 
 governs, and all the language must be considered. 6 
 
 The question of what was the grantor's intention should be submitted to 
 the jury without abstract instructions as to rules and presumptions which 
 determine whether calls for course and distance, or calls for unmarked lines 
 and corners of adjacent surveys, shall control. The intention is to be 
 gathered from all the facts and circumstances in evidence. 7 An instruction 
 
 1 Knowles v. Toothaker, 58 Me. 172. Grandin v. Hernandez, 29 Hun 399, 203; 
 
 2 2Amer. & Eng. Ency. Law 499, and Bridges v. Pierson, 45 N. Y. 601,604; 
 
 cases cited. Morris v. Ward, 36 N. Y. 587, 592; Keith 
 
 Thayer v. Finton, 108 N. Y. 394; v. Reynolds, 3 Grenl. 393; Lodge v. Lee, 
 
 Holland v. Thompson (Tex.), 35 S. W. 6 Cranch 237; Ousby v. Jones, 73 N. Y. 
 
 Rep. 19; Cadeau v. Elliott (Wash.), 34 621. 
 
 Pac. Rep. 916; Robertson v. Mooney 6 Grandin v. Hernandez, 29 Hun 403; 
 
 (Tex.), 21 S. W. Rep. 143; Roberts v. Smith v. Horn (Pa.), 31 Atl. Rep. 1078. 
 
 Helms (Tex.), 20 S. W. Rep. 1004. 7 Holland v. Thompson (Tex.), 35 S. 
 
 *Kock v. Dunkel, 9 Pa. St. 264 [1879]. W. Rep. 19. 
 
 6 Thayer v. Finton, 108 N. Y. 394; 
 
393 
 
 CONFLICT OF CALLS IN DESCRIPTION. 
 
 573- 
 
 merely defining the dignity of the different calls in the patent, namely, 
 artificial and natural objects, calls, and distances, should not be given, as it 
 becomes a charge on the weight of the evidence. 1 
 
 573. Controlling Factors when Intention is Not Clear Monuments 
 Control. As Chief Justice Cooley of Michigan has said : ' ' No rule in real- 
 estate law is more inflexible than that monuments control courses and 
 distances a rule frequently applied in case of public surveys, where its 
 propriety, justice, and necessity are never questioned." 2 Fixed and known 
 monuments or objects, called for in a description of a deed, must prevail over 
 given courses and distances; the order of application being, first, to natural 
 objects; second, to artificial marks; and, third, to courses and distances. 3 
 
 The highest and best evidence of the location of a tract of land is that 
 furnished by the monuments found on the ground and which have been made 
 for that particular tract. If found or located on the ground, that is the best 
 evidence of the location of the tract, and then it matters not what the calls 
 are, what the lengths of the lines are, or what their courses. The boundary- 
 lines go from one monument to another if they can be found. When monu- 
 ments cannot be found, the calls should be resorted to, and it is the duty of 
 the surveyor to go upon the ground and run the lines according to these 
 calls. 4 The line originally run, fixed, and marked is the true boundary-line 
 that will control irrespective of any mistakes or errors in running and marking 
 the line; and this is true of boundaries between states and nations as well as 
 of those of estates. 5 Monuments and lines, actually run, control boundaries 
 shown upon a map or plat when lots have been sold according to the num- 
 
 1 Huff v. Crawford (Tex.), 34 S. W. 
 Rep. 606. 
 
 2 Diehl v. Zanger, 39 Mich. 6or [1880]. 
 Monuments govern courses and dis- 
 tances. Taylor v. Fomby (Ala.), 22 So. 
 Rep. 910; Hurlbutt v. Butenop, 27 Cal. 57; 
 Stinchfield v. Gillis (Cal.), 40 Pac. Rep. 
 98; Stoll v. Beecher (Cal.), 29 Pac. Rep. 
 327; Los Angeles F. & M. Co. v. Thomp- 
 son (Cal.), 49 Pac. Rep. 714; Quillen v. 
 Betts (Del.), 39 Atl. Rep. 595 [1897]; 
 Meydenbauer v. Stevens (D. C.), 78 Fed. 
 Rep. 787; Myers v. Ladd, 26 111. 415; 
 England v. Va'ndermark (111. Sup.), 35 N. 
 E. Rep. 465; Logan v. Evans (Ky.), 298. 
 W. Rep. 636; Sawyer v. Kendall, roCush. 
 241; Pejepscut Proprietors v. Ransom, 
 14 Mass. 144; Olson v. Keith (Mass.), 39 
 N. E. Rep. 410; People v. Auditor-Gen- 
 eral, 7 Mich. 96; Brown v. Morrill (Mich.), 
 51 N. W. Rep. 700; Vanish v. Tarbox 
 (Minn.), 51 N. W. Rep. 1051; Burnham's 
 Heirs v. Hitt (Mo.), 45 S. W. Rep. 368 
 [1898]; Greenleaf v. Brooklyn E. R. 
 Qo., 8 N. Y. Supp. 30, a ditch; Muhlker 
 v. Ruppert, 124 N. Y. 627 [1891]; People 
 v. Jones, 112 N. Y. 597 [1889]; Lush v. 
 Druse, 4 Wend. 313; Curtis v. Aronson 
 
 (N. J.). 7 Atl. Rep. 886; Hopper v. Justice 
 (N. C.), 16 S. E. Rep. 626; Anderson v. 
 McCormick (Oreg.), 22 Pac. Rep. 1062; 
 Lewis v. Lewis, 4 Oregon 177; Raymond 
 v. Coffey. 5 Oregon 132 [1873]; Cross v. 
 Tyrone M. & M. Co., 121 Pa. St. 394; 
 Morse v. Rollins, 121 Pa. St. 537 [1888]; 
 Lodge v. Barnett, 46 Pa. St. 480; Davis 
 v. Baylor (Tex.), 19 S. W. Rep. 523; Sen 
 v. Rehling (Tex.), 29 S. W. Rep. 1114; 
 Church v. Stiles (Vt.), 10 Atl. Rep. 674 
 [1887]; Graves v. Mattison (Vt.), 38 Atl. 
 Rep. 498; Teass v. City of St. Albans (W. 
 Va.), 17 S. E. Rep. 400; Lampe v. Ken- 
 nedy. 49 Wis. 601 [1880]; Borkenhagen 
 v. Vranden (Wis.), 52 N. W. Rep. 260; 
 Garrard v. Silver Pk. Mines, 82 Fed. Rep. 
 578. And see Lyman v. Gedney 114 111. 388; 
 Tyler on Boundaries, Chaps. X to XIII. 
 3 Gray's Cases on Real Property, 2, p. 
 285; 2 Amer. & Eng. Ency. Law 499. 
 And see Id. (2d ed.), Boundaries. 
 
 3 Vanish v. Tarbox (Minn.), 51 N. W. 
 Rep. 1051. 
 
 4 Cross v. Tyrone M. & M. Co., 121 
 Pa. St. 390. 
 
 5 Jenkins v. Trager, 40 Fed. Rep. 726- 
 
574- OPERATIONS PRELIMINARY TO CONSTRUCTION. 394 
 
 bers of the plat. 1 Dimensions or lengths of lines laid down upon a plat made 
 by a surveyor must give way to proved or admitted facts conflicting there- 
 with. 2 The monuments govern the field-notes; 3 but where the calls in a 
 surveyor's field-notes can be ascertained, they control an ascertainable object 
 not called for. 4 
 
 574. It is the Policy of the Law to Maintain Existing Boundaries, 
 Judge Cooley of Michigan in one of his able opinions 5 has presented this 
 subject in the following words, which is a lesson to surveyors and engineers: 
 "The surveyor testifies with positiveness and apparently without hesitation 
 that the fences and buildings on all the lots are not correctly located, and that 
 therefore there is of course an opportunity for forty-eight suits at law, and 
 probably many more than that. When an officer proposes thus dogmatically 
 to unsettle the landmarks of a whole community, it becomes of the highest 
 importance to know what has been the basis of his opinion. The record in 
 this case fails to give any explanation, but the reasonable inference is that the 
 surveyor has reached his conclusion by satisfying himself of the initial point 
 of the survey, and then proceeding to survey out the plat anew with that as 
 his starting-point. Of course by this method, if no mistake is made, there is 
 no difficulty in ascertaining with positive certainty where, according to the 
 plat, the original street and lot lines ought to have been located, and 
 apparently the surveyor has assumed that that was all he had to do. Nothing 
 is better understood than that few of our early plats will stand the test of a 
 careful and accurate survey, without disclosing errors. This is as true of 
 government surveys as of any others, and if all the lines were now subject to 
 correction on new surveys, the confusion of lines and titles that would follow 
 would cause consternation in many communities. Indeed the mischief that 
 would follow would be simply incalculable, and the visitation of the surveyor 
 might well be set down as a great public calamity. No law can sanction this 
 course. The surveyor has mistaken entirely the point to which his attention 
 should have been directed. The question is not how an entirely accurate 
 survey would locate these lots, but how the original stakes located them. 
 
 " No rule in real-estate law is more inflexible than that monuments con- 
 trol courses and distances a rule that is frequently applied in case of public 
 
 1 Rootz/. Cincinnati (Iowa), 54 N.W. Rep. Dec. 63. 
 
 206; Burke v. McCowen (Cal.). 47 Pac. 3 Robinson v. Laurer (Oreg.), 40 Pac. 
 
 Rep 367; City of Decaturz/. Niedermeyer, Rep. 1012; Layton v. N. Y. & T. Land 
 
 168 111. 68; Stetson v. Adams (Me.), 39 Co - (Tex.), 29 S. W. Rep. 1120; Ogilvie 
 
 Atl. Rep. 575 [1898]; Smith v. Boone v. Copeland (111.), 33 N. E. Rep. 1085; 
 
 (Tex.), 19 S. W. Rep. 702; Parks v. Utley v. Smith (Tex.), 32 S. W. Rep. 906; 
 
 Loomis, 6 Gray 467; Lunt v. Holland, 14 Hopper v. Justice (N. C.), 16 S. E. Rep. 
 
 Mass. 149; Vance v. Fore, 24 Cal. 443; 626; Busk v. Manghum (Tex.), 37 S. W. 
 
 Buchanan v. Roy's Lessee, 2 Ohio St. Rep. 459. But see Cadeau v. Elliott 
 
 263; Magoun v. Lapham, 21 Pick. 135; (Wash.), 34 Pac. Rep. 916. 
 
 Mclver v. Walker, 9 Cranch 173; Vanish 4 Ratliff v. Burleson (Tex.), 26 S. W. 
 
 v. Tarbox (Minn.), 51 N. W. Rep. 1051 Rep. 1003. 
 
 [!8g2]. 5 Diehl v. Zanger, 39 Mich, 601 [li 
 
 2 C. S. & C. R. R. Co. v. Tuttle, 7 Ohio 
 
395 CONFLICT OF CALLS IN DESCRIPTION. 5/6, 
 
 surveys, where its propriety, justice, and necessity are never questioned. But 
 its application in other cases is quite as proper, and quite as necessary to the 
 protection of substantial rights. The surveyor should therefore have directed 
 his attention to the ascertainment of the actual location of the original land- 
 marks set, and if those were discovered, they must govern. If they are no- 
 longer to be discovered, the question is, 'Where were they located ?' and upon 
 that question the best possible evidence is usually to be found in the practical 
 location of the lines, made^at a time when the original monuments were pre- 
 sumably in existence and probably well known." 1 
 
 The rule is always applicable when it affects the intent of the grantor as 
 shown in the conveyance. a 
 
 575, Relative Importance of Different Calls in a Description. To carry 
 out this policy the courts have recognized and given precedence and promi- 
 nence to certain calls in a description to determine the boundaries of an 
 estate. The calls as generally adopted to locate a survey are in the following 
 order, viz. : (i) monuments or marks upon the ground; (2) calls for 
 adjoiners; (3) courses and distances; (4) quantity or area. If the marks 
 found upon the ground conflict with the calls for adjoiners, with the courses 
 and distances, and with the area, the marks upon the ground, i.e., the monu- 
 ments, must still govern. 3 
 
 576. Monuments, if Identified, Control all Other Calls. Where monu- 
 ments mentioned in a deed are identified, they control both courses and 
 distances given, whether they were seen by the parties to the deed or not. 4 
 It is not necessary even that the grantee shall have actual knowledge of the 
 monuments. 5 
 
 Where the evidence shows that courses and distances in a deed differ from 
 the monuments on the ground, or the true line as agreed upon and indorsed 
 by landmarks, the monuments govern. 6 The marks on the ground of an 
 old survey, indicating the lines originally run, are the best evidence of the 
 location of the survey, and if any evidence of such lines exist, it should be 
 referred to the jury. 7 
 
 A striking case of the preference for monuments over calls for adjoiners 
 was shown in a Massachusetts case. 'Wild land was described as bounded 
 '* westerly on the county road, northerly and southerly by land owned by 
 
 1 See also an address by Justice Cooley Zanger, 39 Mich. 601 [1880] 
 
 before the Michigan Association of Sur- 4 Anderson v. Richardson (Cal.), 28 
 
 veyors and Civil Engineers reported in Pac. Rep. 679. 
 
 Hodgman's Manual of Land Surveying, 6 Foley v. McCarthy (Mass.), 32 N. E. 
 
 p. 314, and in Johnson's Theory and Rep. 669. Accord, Smith v. Boone 
 
 Practice of Surveying, p. 579. (Tex.), 19 S. W. Rep. 702. 
 
 2 Fullam v. Foster, 68 Vt. 590. 6 Rook v. Greenwalt (Com. PL), 17 Pa. 
 
 "Jackson v. Lambert, 121 Pa. St. 187; Co. Ct. Rep. 642; Bowen v. Gaylord (N. 
 
 Morse v. Rollins, 121 Pa. St. 537, and C.), 29 S. E. Rep, 340 [1898]. 
 
 cases cited sufra. This is equally true of 7 Gratz v. Hoover, 16 Pa. St. 232 
 
 government surveys. Watrous v. Mor- [1851]. 
 rison (Fla.), 14 So. Rep. 805; Diehl v. 
 
577- OPERATIONS PRELIMINARY TO CONSTRUCTION. 396 
 
 ' E. ' and running easterly to Sheldon's corner, and containing twelve and 
 one-half acres more or less." Sheldon's corner was at the easterly termination 
 of the southerly line, and it was held that the northerly line must also be 
 deemed to extend as far east as Sheldon's corner, although the lot would 
 thereby be bounded on the north in part by land of another than "E.," 
 which was not mentioned in the deed, and although the contents of the lot 
 would thereby exceed 39 acres. 1 
 
 Another case reported is where a line was described as running south to 
 the "northwest corner of Burton; thence westerly along the northern line of 
 Waterville, ' ' both parties assuming that the northeast corner of Waterville was 
 at the northwest corner of Burton. It afterwards turned out that the Water- 
 ville corner and north line were a substantial distance further south. The 
 grant was held to go to the Burton corner, and the southern boundary was 
 run westerly therefrom, and parallel with the north line of Waterville, thus 
 excluding the intervening territory. 2 
 
 Where parties have stuck stakes to mark the corners of land conveyed, 
 these stakes will govern, even though they are 627 feet apart, when the 
 description has given the distance as 250 feet. 3 
 
 577. Monuments Control in Government Surveys, Where titles to lands 
 have come directly from the government, and such lands have been surveyed 
 by government surveyors or agents, their survey will be presumed to be correct 
 and the burden of proving it wrong will be upon the one who impeaches its 
 correctness. 4 If monuments have been established and erected, they must 
 govern if their location can be ascertained. 5 The line actually run by the 
 original 'government surveyors is the true line. Courses and distances, as 
 contained in the field-notes and plats, are descriptions which serve only to 
 assist in ascertaining where the line was actually run. 6 
 
 If the lines established by the United States survey are obvious, they 
 must be followed, though made on an assumed or wrong magnetic variation; 
 and it is only when lost lines and corners are to be renewed that due allow- 
 ance should be made for the variation of the magnetic needle from the true 
 meridian. 7 
 
 Where objects, natural or artificial, are called for in the field-notes of 
 
 1 Clark v. Munyan, 22 Pick. 410 [1839]; * Miller v. White (Fla.), 2 So. Rep. 614 
 Warden v. Harris (Tex.), 47 S. W. Rep. [1887!; Breen v. Donnelly (Cal.), 15 Pac. 
 834 [1898], But see Pierce v. Brown, 24 Rep. 845 [1888] ; Greer v. Squire (Wash.), 
 Vt. 165 [1852]. And see Woodward v. 37 Pac. Rep. 545. 
 
 Nims, 130 Mass. 70 [1881]; Thomasson v. 5 Vroman v. Dewey, 23 Wis. 530 [1868]; 
 
 Hanna (Ky.), 18 S. W. Rep. 227. Foley v. McCarthy (Mass.), 32 N. E. 
 
 2 Winnipisiogee Paper Co. v. New Rep. 669; Knight v. Elliott, 57 Mo. 317 
 Hampshire Land Co. (C. C.), 59 Fed. [1874]. 
 
 Rep. 542; Land Co. v. Saunders, 103 U. 6 Beltz v. Mathiowitz (Minn.), 75 N.W. 
 
 S. 316, distinguished. Rep. 699; Busk v. Manghum (Tex.), 37 
 
 8 Cooper v. Deal (Mo.), 22 S. W. Rep. S. W. Rep. 459. 
 
 31; Warden v. Harris (Tex.), 47 S. W. 7 Taylor v. Fomby (Ala.), 22 So. Rep. 
 
 Rep, 834 [1898]. 910 [1897]. 
 
397 CONFLICT OF CALLS IN DESCRIPTION. 578. 
 
 official surveyors, the presumption is that such objects actually existed * and: 
 were established at the places indicated by the field-notes. The burden of 
 proving otherwise is on him who disputes their correctness. 2 
 
 Courses, distances, and area as given by the field-notes of a government 
 survey will control in ascertaining the corners of a survey where the monu- 
 ments established by the government surveyors cannot be found. 3 The 
 course must yield whenever the monuments are certain or are capable of 
 being made certain. If the monuments cannot be found or their locations 
 established, then resort must be had to the courses and distances. 4 
 
 All disputes as to the boundaries of land are to be governed by the United 
 States surveys unless there is some statute to the contrary. 5 A corner called 
 for in the field-notes of an original survey marked on the ground by the: 
 surveyor at the time of the survey, so that it can be identified, controls a claim 
 for another object, as another corner, when it is shown that the surveyor did 
 not go on the ground and establish such other corner, but merely supposed, 
 that course and distance from the other corner would reach it. 6 
 
 The section corner located by the government surveyors will control 
 though it be in a place different from that given in the field-notes and plat. 7 
 It is none the less a government corner because it is not in ihe township line, 
 and must be observed and regarded in the location of other corners lost or 
 destroyed. 8 
 
 578, When Monuments are Lost or Destroyed. The monuments them- 
 selves need not exist, for where they are gone they may be supplied by proofs- 
 of their former existence. 9 Their former site or location must be established 
 with reasonable certainty, in order that they shall prevail over the lines estab- 
 lished by explicitly given courses and distances, or to govern an evident error 
 of description by courses and distances. 10 
 
 Where field-notes call for unmarked lines of surrounding older surveys, 
 the position of which can be actually ascertained, and there is no evidence as ' 
 to how the survey was actually made, it will be presumed that the surveyor 
 
 iKuechler v. Wilson (Tex. Sup.), 18 7 Peterson v. Skjelver (Neb.), 62 N. W. 
 
 S. W. Rep. 317. Rep. 43, Lampe v. Kennedy, 49 Wis. 601; 
 
 2 Greer v. Squire (Wash.), 37 Pac. Rep. Stoll v. Beecher (Cat.), 29 Pac. Rep. 327. 
 
 545- 8 McClintock v. Rogers, n 111. 279; 
 
 3 Carter v. Hornback (Mo.), 40 S. W. Major v. Watson, 73 Mo. 661 [1881]. 
 Rep. 893; Beardsley ?. Crane (Minn.), 9 Major v. Watson, 73 Mo. 661 [1881]; 
 54 N. W. Rep 740; Deaver v. Jones (N. Morse v. Rollins, 121 Pa. St. 537; Beltz 
 C.), 26 S. E. Rep. 156; Blair v. Brown v. Mathiowitz (Minn.), 75 N. W. Rep. 
 (Wash.), 50 Pac. Rep. 483 [1897]. See 699. Parol proof is admissible. Broad- 
 Holler v. Emerson (Cal.), 44 Pac. Rep. dus v. Eubanks (Ky.), 388. W. Rep. 134; 
 1073. Greely v. Weaver (Me.), 13 Atl. Rep. 575 
 
 *Whitcomb v. Dutton (Me.), 36 Atl. [1888]. 
 
 Rep. 67; Major v. Watson, 73 Mo. 661 10 Vanish z/. Tarbox (Minn.), 51 N. W. 
 
 [1881]. Rep. 1051; Stoughton v. Rice (Ky.), 32^ 
 
 6 Taylor v. Fomby (Ala.), 22 So. Rep. S. W. Rep. 1083. See Black v. Walker 
 
 910 [1897]. (N. D.), 75 N. W. Rep. 787. 
 
 *Cox v. Finks (Tex.), 41 S.W. Rep. 95. 
 
579- OPERATIONS PRELIMINARY TO CONSTRUCTION. 398 
 
 actually made the survey on the ground, and such unmarked lines will prevail 
 over calls for courses and distances in case of conflict, 1 
 
 A grant is always to be interpreted with reference to monuments and cir- 
 cumstances existing at the time of the conveyance, and cannot be extended 
 so as to include other lands by an implication or by a conjecture that 
 possibly, had the parties foreseen changes in matters affecting the grant, they 
 might have made it in other and different terms. 2 
 
 579. In Government Surveys it is the Original Monuments that 
 Control. In the rule that monuments control courses and distances, and that 
 when monuments and measurements vary the monuments always control, 
 the reference is to monuments and measurements made by the original survey. 3 
 
 The object of a survey should be to locate the original monuments; and a 
 later survey made by an official surveyor, and monuments erected in accord- 
 ance with it, are not alone sufficient to overcome the evidence afforded by 
 monuments already existing. It must be shown that the new monuments 
 were in fact correct and that the earlier ones were not correct. 4 
 
 Where there are two conflicting monuments, one of which corresponds 
 with the courses and distances, that one should be taken, and the other 
 rejected as surplusage. 5 If the boundary be not known and fixed, the courses 
 and distances will determine it. 6 
 
 In the absence of calls for artificial or natural objects, the lines of a survey 
 are controlled by courses and distances; 7 and where a surveyor makes a mis- 
 take in supposing that he has reached the western lines of an older survey 
 when running the course and distance called for, the calls for course and 
 distance should control in locating boundaries. 8 
 
 The true corner of a governmental subdivision of land is where the United 
 States surveyors in fact established it. 9 The resurvey must follow the 
 boundaries and monuments as run by the original survey, if the monuments 
 can be found, or the places where they were originally placed identified. 10 If 
 
 1 Waggoner v. Daniels (Tex.), 44 S. W. 6 Hanson v. Red Rock Tp. (S. D.), 57 
 
 Rep. 046 ri8o81. N. W. Rep. n; Aransas Pass Col. Co. v. 
 
 8 White's Bank v. Nichols, 64 N. Y. 65; Flippen (Tex.), 29 S. W. Rep. 813. 
 
 Falls Village W%-p. Co. v. Tibbetts, 31 7 Ratliff v. Burleson (Tex.), 25 S. W. 
 
 Conn. 165; Banks v. Ogden, 2 Wall. 57: Rep. 983. 
 
 Tibbetts v. Estes, 52 Me. 566; Weisbrod 8 Aransas Pass Colonization Co. v. 
 
 v. C. & N. W. R. Co., 18 Wis. 35; Kirk- Flippen (Tex. Civ. App.), 298. W. Rep. 
 
 bam v. Sharp, I Whart. 323; Cook v. 813. 
 
 McClure 58 N. Y. 437; Minor v. Kirk- 9 Beardsley v. Crane (Minn.), 54 N. W. 
 
 land (Tex.), 20- S. W. Rep. 932. And see Rep. 740. Semble, Blair v. Brown( Wash.), 
 
 Holland w. Thompson (Tex.), 35 S. W. 50 Pac. Rep. 483; Deaver v. Jones (N. C.), 
 
 R PO T9- 26 S. E. Rep. 156; Briton v. Ferry, 14 
 
 3 Woodbury v. Venia (Mich.), 72 N.W. Mich. 53: Johnson v. Simerly (Ga.), 16 S. 
 
 Rep 180 [1897!; Morrison v. Seamans, E. Rep. 9?!. 
 
 ?8s Pa? St. 74 10 Randall v. Burk Tp. (S. D.). 70 N.W. 
 
 *Stowers v. Gilbert (Sup.), 33 N. Y. Rep 837; Peterson v. Skjelver (Neb.), 62 
 
 Supp. TOI; Knippa v. Umlang (Tex.), 27 N. W. Rep. 43; Diehl v. Zanger, 39 Mich. 
 
 S. W Rep. 91?. 601 I Meydenbauer v. Stevens (D. C.), 78 
 
 5 Zeibold v. Foster (Mo. Sup.), 24 S. W. Fed. Rep. 787; Dowdle v. Cornue (S. D.), 
 
 Rep. 155. 68 N.W. Rep. 194. 
 
399 CONFLICT OF CALLS IN DESCRIPTION. 580. 
 
 there is a conflict between the quantity expressed in the patent and that shown 
 by the survey, the latter will control. 1 
 
 Where the stakes found conflict with the field-notes, the burden of show- 
 ing that the stakes were monuments of the original survey is on the party 
 claiming to the stakes. 2 
 
 580, Identification of Monuments Evidence Admissible.* In the proof 
 of bounds and monuments almost any evidence is admissible to identify 
 those named in a description. Trees and stumps are frequently referred to as 
 monuments in a new country and in farm surveying, and it is frequently 
 necessary or desirable to prove the age of certain trees, or the number of years 
 which have elapsed since certain marks or blazings were made. To this end, 
 efforts have been made on several occasions to introduce blocks cut from 
 trees showing the rings of growth, one of which is supposed to be added each 
 year in deciduous trees. Such blocks were admitted and the rings of growth 
 counted to prove the date at which an early survey had been made. 3 
 
 In another case where there was no proof offered that the number of 
 annual concentric layers or rings in the trunk of a tree did correspond with 
 the years of its age, the court held that the hypothesis about the formation of 
 each one of such concentric layers could not be judicially received as evidence 
 to show the period which ha'd elapsed. The point to be determined was 
 whether in the growth of trees a concentric layer of wood under the bark was 
 a ring of invariable formation or not. The opinion of the court contains a 
 most interesting discussion upon the subject of forestry and the growth of 
 vegetation. 4 
 
 Where the best evidence of the location of a displaced monument in the 
 boundary between two surveys is not introduced, but other evidence thereof 
 is admitted without objection, a finding in accordance therewith is not with- 
 out support. 5 
 
 On an issue as to the location of the lines of several surveys, field-notes 
 of one of the earlier ones are admissible where they would aid in the location 
 of the lines of any of the others, and show that one of the lines therein, being 
 a marked boundary, would be recognized by the same surveyor when subse- 
 quently making another of the surveys. 6 
 
 Old mounds with pits and stakes, having the appearance of government 
 mounds, found at points distant from the points indicated by the government 
 field-notes by courses and distances, afford but slight evidence that they are 
 the original government mounds, unless they have existed for a long time, 
 
 1 Stonewall Phosphate Co. v. Peyton * Patterson v. M'Causland, 3 Eland's 
 (Fla.), 23 So. Rep. 440 [1897]. Ch. Repts. 69 [1841]. 
 
 2 Robinson v. Laurer (Oreg.), 40 Pac. 6 Peters v. Gracia (Cal.), 42 Pac. Rep. 
 Rep. 1012. 455. 
 
 'Cross v. Tyrone M. & M. Co., 121 Pa. 6 Daniels v. Fitzhugh (Tex.), 35 S. W. 
 
 St. 394. Rep. 38. 
 
 * See Sees. 617-640, infra. 
 
S^ 1 - OPERATIONS PRELIMINARY TO CONSTRUCTION. 4CO 
 
 and have been generally recognized as the undisputed government corners. 1 
 
 A river will not control metes and bounds when it is not clear that such 
 was the intention, when another natural monument could more properly be 
 adopted as a boundary, and when the identity of the land can be sufficiently 
 established from the distances given in connection with the acreage. 2 
 
 If the evidence shows that a half section corner was located at a certain 
 point, the court should establish the corner at that point even though such 
 point is not equidistant from the section corners on either side of it. 3 
 
 Oral evidence is admissible to establish the boundaries of land conveyed. 4 
 Where there is a conflict in the calls of a railroad survey, parol testimony is 
 admissible to show where the metes and bounds of the surveys were actually 
 run and marked upon the ground. 5 
 
 Where the evidence is conflicting as to the identity of a corner forming a 
 boundary, the question is for the jury. 6 
 
 Where there is no evidence as to how a survey was made, the presumption 
 of law is that it was actually made on the ground as the law requires, and 
 this presumption cannot be silenced by the mere opinion of a surveyor who 
 testifies that it was not so made. 7 
 
 581. Fences as Monuments. Fences not referred to in a deed cannot 
 control the distances stated in the deed. 8 The position of old fences may be 
 considered in ascertaining disputed boundaries. 9 As between the old 
 boundary fences and any survey made for the monuments after dispute, the 
 fences are by far the better evidence of what the lines of the lot actually were. 10 
 A fixed, visible monument can never be rejected as false or mistaken in favor 
 of mere courses and distances, as a starting-point, when there is nothing else 
 in the terms of the grant to control and override the fixed and visible call. 11 
 
 582. Natural Monuments, as Roads, Streams, and Ways.* Fixed monu- 
 ments control courses and distances in a description of land in a deed. 
 Where a river or highway or railroad is made a boundary-line, it is a fixed 
 monument the same as the starting-point in a survey, and the distances 
 between such monuments have little weight in the interpretation or determina- 
 tion of the survey. 12 
 
 1 Hanson v. Red Rock(S. D.), 57 N. W. 910 [1897]. 
 
 Rep. ii. 7 Aransas Pass Col. Co. v. Flippen 
 
 3 Hostetter v. Los Angeles Terminal (Tex.), 29 S. W. Rep. 813. 
 
 Ry. Co. (Cal.), 41 Pac. Rep. 330. 8 Kashman v. Parsons (Conn.), 39 Atl. 
 
 3 Doolittle v. Bailey (Iowa), 52 N. W. Rep. 179 [1898]. 
 
 Rep. 337; Walrod v. Flanigan (la.), 39 9 Hoffman v. City of Port Huron 
 
 N. W. Rep. 645 [1888]. But see Williams (Mich.), 60 N. W. Rep. 831. 
 
 v. Winslow (Tex.), 19 S. W. Rep. 513. 10 Stewart v. Carlton, 31 Mich. 270. 
 
 4 Broaddus v. Eubanks (Ky.), 38 S. W. "Gerrard v. Silver Peak Mines (U. S. 
 
 Rep. 134. C. C.), 82 Fed. Rep. 5?8 [1897]. 
 
 6 Minor v. Kirkland (Tex.), 20 S. W. 12 Piper v. Connolly, 108 111. 646 [1884]; 
 
 Rep. 932. Church v. Stiles (Vt.), 10 Atl. Rep. 674 
 
 6 Deaver v. Jones (N. C.), 26 S. E. Rep. [1887]. 
 156; Taylor v. Fomby (Ala.), 22 So. Rep. 
 
 *See Sees. 401-460, supra. 
 
|OI CONFLICT OF CALLS IN DESCRIPTION. 583. 
 
 A call for a river as a boundary-line overcomes distance and quantity in 
 the absence of any ambiguity in the description. 1 
 
 Where a call was a corner, of a lot in an incorporated town, and the other 
 call was the low-water line of a navigable stream, it was held that both monu- 
 ments must be considered to determine the location of the land even if they 
 did not correspond with the courses, distances, or quantity given in the 
 description. The courses and distances were made to conform to the natural 
 and artificial monuments named as boundaries. 2 
 
 Where the description of land is by metes and bounds, and it is complete 
 
 in itself, and it excludes a certain road and reference to said road for the 
 
 purpose of designating the point from which the description starts and the 
 
 course of a line therefrom, it has been held not to show an intention to make 
 
 "the road a boundary of the land except as it coincides with the description. 3 
 
 583. Calls for Adjoiners against Courses and Distances. The second 
 factor of importance in the calls of a description is that of adjoining estates. 
 It is submitted that this may be a mere reference to other elements contained 
 in the description of the adjoining estate. A reference in a description to 
 an adjoining tract which is itself located by courses and distances would be a 
 reference to courses and distances, and it will be difficult to understand how 
 a reference to courses and distances in the deed of an adjoining estate can 
 govern the same elements of the deed of land to be located. 
 
 If the adjoining premises are definitely located by monuments or by 
 boundaries that have been long acquiesced in and agreed upon, and have been 
 generally known, then no doubt this will be a governing element. It is pre- 
 sumed that a reference in a description to an adjoining estate the description 
 of which was clear and certain might control a confused and uncertain 
 description; 4 but it cannot be believed that an estate bounded by an adjoin- 
 ing estate would be controlled thereby unless the adjoining estate was more 
 definitely and certainly located than the one described by it. 5 
 
 Calls in a deed fixing the boundaries of the land conveyed by lands of 
 adjacent owners will control, when these boundaries are well defined, though 
 there is a deficiency in the number of acres. 6 
 
 Under the rule that that is certain which can be made certain, a descrip- 
 tion bounding a grant by the northern line of a prior grant is sufficiently 
 definite if referred to under circumstances making it a controlling call, 
 although said northern line has never been marked upon the ground. 7 It is, 
 for all the practical purposes of defining the lands embraced in it, the same as 
 to say "go to, and run with, the lines of such grant." 8 
 
 1 Lampman v. Van Alstyne (Wis.), 69 W. Rep. 19. 
 N. W. Rep. 171. e Gugliemi v. Geismar (La.), 14 So. Rep. 
 
 a Sayers v. Lyons, no Iowa 249 [1859]. 501. 
 
 3 Lankin v. Terwilliger (Oreg.), 29 Pac. 7 Winnipisiogee Paper Co. v. New 
 
 Re P- 268 - Hampshire Land Co. (C. C.), 59 Fed. 
 
 Chesley v. Holmes. 40 Me. 536. Rep. 542. 
 
 5 Fullam v. Foster (Vt.), 35 Atl. Rep. 8 O'Dell v. Swaggerty (Tenn.), 428. W 
 
 484; Holland v. Thompson (Tex.), 35 S. Rep. 175 [1897]. 
 
5 8 4- OPERATIONS PRELIMINARY TO CONSTRUCTION. 4O2 
 
 However, where a call for a line read, " south 360 chains to a stake 
 supposed to be in D. 's line, thence with his line 390 chains to his N. E. 
 corner," and 360 chains south did not reach D. 's line, the call for the stake 
 being indefinite and uncertain, the call for course and distance was held to 
 control, especially where D. 's line was not established by fixed monuments. 1 
 
 The rule is well established that where land is described by courses and 
 distances, and also by calls for adjoiners, the latter will govern if there be a 
 discrepancy and there are no monuments. 2 
 
 The adjoining land so referred to becomes a monument which will control 
 distances; and a grantee who accepts such a deed bounding him by another's 
 land can hold no portion of the other's land even though the latter 's deed 
 was from the same grantor and was not legally, though actually, recorded. 3 
 If the adjoiner's land is described by metes and bounds, the grantee is limited 
 to the tract described in his deed by metes and bounds, though the area be 
 less than it was the intention of the parties to convey. 4 
 
 The official survey and plat of any town site located on government lands, 
 and the lots and blocks thereof, are permanent landmarks, which may be con- 
 sidered in establishing the location of adjoining lands outside the town-site. 5 
 
 584. Calls for Adjoiners against Points of Compass. Where a descrip- 
 tion was confused as to the points of the compass, and land was described as 
 bounded on the east by a road, when the road was on the south, on the south 
 by land of M., instead of on the west, it was held to be a question of fact, to 
 be ascertained by the language used and the adjoiners called for, and that for 
 the purposes of that construction the points of the compass specified should 
 yield to the adjoiners actually intended and called for. 6 
 
 Where a southern boundary is described as beginning at a certain corner, 
 and running " thence east to the southwest corner of the land of C.," such 
 corner becomes a monument of description; and if its location is definitely 
 ascertained, the boundary will be indicated by a straight line running from 
 the point named to the southwest corner of C. 's land, though the line would 
 run in a southeasterly direction, and the quantity of land conveyed would be 
 about 35 acres, instead of 30 acres, more or less, as given in the conveyance. 7 
 But where a call for another survey, if followed, will necessitate a total 
 disregard of course and distance, and cause the remaining bounds both to 
 conflict with several other surveys and to end so far from the starting-point as 
 
 1 Brown v. House (N. C.), 248. E. Rep. 9 Atl Rep. 354 [1887]. 
 
 786, A very and Clark, JJ., dissenting. * Probett v. Jenkinson (Mich.), 63 N. 
 
 2 Koch v. Dunkel, 90 Pa. St. 264 [1879]; W. Rep. 648; Gugliemi v. Geismar (La.), 
 Langerman v. Nichols (Tex.), 32 S. W. 1480. Rep. 501. 
 
 Rep. 124; Smith v. Headrick. 93 N. C. 5 Carroll v. Price (D. C.), 81 Fed. Rep. 
 
 2TO [1885]; Connor v. Johnson (S. C.), 30 137. 
 
 S E. Rep. 833 [1898]; Fullam v. Foster 6 Stroupe v. McCloskey (Pa.), 10 Atl. 
 
 (Vt.) f 35 Atl. Rep. 484; Smith v. Catlin Rep. 42,481 [1887]. 
 
 Ld. & Imp. Co. (Mo.), 22 S W. Rep. 1083. 7 Abbey v. McPherson (Kan. App.), 41 
 
 .3 Bryant v. Maine Cent. R. Co. (Me.), Pac. Rep. 978. 
 
403 CONFLICT OF CALLS IN* DESCRIPTION. 586. 
 
 to exclude about 1000 acres from the survey, 1 it is properly ignored. Where 
 the boundaries of a survey cannot be located by its own calls and field-notes, 
 they may be established by the field-notes of adjacent surveys. 2 
 
 In a case where the surveyor's field-notes showed actual surveys on the 
 ground, and the lines and corners thereof were called for as contiguous, and 
 evidence of such surveys was found which reasonably indicated an excess in 
 the distance of the lines of 260 varas in 7116 varas, at the date of the survey 
 (1856) considered trifling, and a slight variance of 75 varas in the course, 
 these discrepancies were held insufficient to overcome the other evidence 
 pointing to the fact that the surveys were contiguous. 3 
 
 Where the description in a deed, after following the line of another tract 
 to a certain point, contains a clause, "thence with that line to a stake on the 
 west bank of the branch," it should be construed as intending to follow the 
 boundaries of such tract, though the courses change before reaching the 
 branch, and though the branch would be reached at a less distance by follow- 
 ing an extension of the first course from the point in question. 4 
 
 585. Adjoining and Cornering Estates. As to whether a tract of land 
 must lie alongside of another to be " adjoining " has been determined by the 
 courts, which have held that if two tracts of land touch each other at a corner 
 but do not lie alongside, they are adjoining. It was so held when it was 
 agreed that a railroad company would erect a depot upon a certain tract of 
 land that was adjoining another tract of land. 5 
 
 A call for land contiguous to another tract has been held to require actual 
 contact or a touching of the estates, in the absence of anything in the deed 
 to show that the word was used in any other sense. 6 
 
 586. Calls for Courses against Distances. The third factor in order of 
 importance is the course, which is usually held to govern the distance. Such 
 a rule of construction has been maintained for generations, but for what 
 reason is not apparent to surveyors of to-day. With modern instruments and 
 the skill with which the more enlightened surveyor of to-day handles them, 
 there can be no just reason for a preference of the call for courses over a call 
 for distances. If one is preferred to the other, it must be due to attendant 
 circumstances. The courts in many cases have acknowledged this and 
 modified their rules accordingly. The better law of to-day is that there is no 
 fast and firm rule that obliges a court or surveyor to prefer the one or the 
 other. If any preference is given, it must depend upon the circumstances of 
 each particular case. 7 There is no arbitrary rule that the courses or the dis- 
 
 1 Gregg v. Hill (Tex.), 17 S. W. Rep. 5 Fitzgerald v. Britt,43la. 498. 
 
 8 38. Holston S. & P. Co. v. Campbell 
 
 2 Kuechler v. Wilson (Tex. Sup.), 18 S. (Va.), 16 S. E. Rep. 274. 
 
 W -Rep. 317. 'Justice Story in Preston v. Bowman, 
 
 'Graham v. Dewees (Tex. Sup.), 20 S. 6 Wheat. 580 [1821]; Ratliff v. Burleson 
 
 W. Rep. 127. (Tex.). 26 S. W. Rep. 1003. And see 
 
 4 Buckner v. Anderson (N. C.), i6S. E. Loring v. Newton, 8 Greenl. 61 68 
 
 Rep. 424. [ T 8 3 i] 
 
53;. 
 
 OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 404 
 
 tances shall govern. It must depend upon the circumstances of each 
 particular case. If marked lines and corners are established, they will govern, 
 and other descriptions must yield to them. 1 
 
 If the description contains no patent ambiguity, but, on its application to 
 the land described, it results in a lot of the most singular shape, plainly never 
 intended by the parties, there is no error in ignoring the calls for courses and 
 applying only the calls for distance. 2 
 
 587. Courses Held to Govern Distances, 3 It is well to remember, how- 
 ever, that there has been a rule that courses shall govern distances, and that 
 courts are likely to adhere to such precedents. Whether due to their con- 
 servatism or to their ignorance of modern methods of surveying, they are 
 likely to favor courses and give them the greater weight when in conflict with 
 distances. In a comparatively recent case (1887) it was held that a line 
 described as running at right angles to a street was not varied because the 
 next call of 30 feet was in fact 33^- feet. The angle was held to control. 4 
 
 A Massachusetts case prominently brings out the features of this ancient 
 rule. 5 A lot occupying an acute-angled corner was described as * ' beginning 
 at the corner, thence northerly by W. St. 134 feet, to land of G., thence 
 running westerly by land of G. 60 feet, thence running southerly by land of 
 said G. at right angles, to Dix St. , thence 6 1 feet more or less to the first- 
 mentioned bound (corner) containing 7770 feet more or less." Here was a 
 conflict between a distance and area on one hand and a course (right angle) 
 on the other hand. The actual distance from the corner when the line was 
 drawn at right angles was 8o|- feet, against 61 feet called for in the description; 
 and the area 9100 square feet, against 7770 square feet mentioned in the con- 
 veyance. If the line were run southerly parallel to W. street, the distance 
 actually measured would be 60^ feet and the area exactly 7770 square feet as 
 required, and the angle would be 81 degrees instead of a right angle 
 (90 degrees). 6 
 
 Such a check could not fail to satisfy a most exacting and cautious 
 surveyor, but the court held* that as a matter of law the line should be run at 
 right angles notwithstanding the checks afforded by the distance and area. 
 The court refused to admit evidence of the fact that the adjoining lots had been 
 conveyed by the same common grantors according to 'a plan, which plan 
 showed the lines parallel to W. street and the distance to be 6o feet on Dix 
 
 1 Goodman v. Myrick, 5 Oregon 65; 
 Palms v. Shawano Co., 61 Wis. 211 [1884]; 
 Meade v. Leon, etc., Co. (Tex.), 22 S.W. 
 Rep. 298. 
 
 2 Tolkin v. Anderson (Tex.), 19 S. W. 
 Rep. 350. 
 
 3 Courses were held to govern dis- 
 tances in the following cases: Hall v. 
 Eaton, 139 Mass. 217: Platt v. Bente (N. 
 J.), 10 Atl. Rep. 283 [1887]; Smith v. Im- 
 provement Co. (Mo. Sup.), 22 S.W. Rep. 
 
 1084; Harding v. Wright (Mo. Sup.), 24 
 S. W. Rep. 211; Duncan v. Hall (N. C.), 
 23 S. E. Rep. 362; Rand z>. Cartwright 
 (Tex.), 18 S. W. Rep. 794- 
 
 4 Platt v. Bente (N. J.), 10 Atl. Rep. 
 283 [1887]. 
 
 5 Hall v. Eaton, 139 Mass. 217. 
 
 6 Hall v. Eaton, 139 Mass. 217 [1885]: 
 Platt v. Bente (N. J.), 10 Atl. Rep. 283 
 [1887]; Iverson v Swan (Mass.), 48 N. 
 E. Rep. 282. 
 
4O5 CONFLICT OF CALLS IN DESCRIPTION. 587, 
 
 street, that the line did not make a right angle with Dix street, and that the 
 grantors of the grantees saw the plan before they took the deed ; and it also 
 refused evidence that a fence had been erected upon the line parallel to W. 
 street with the parties' consent, and had remained there several years. The 
 matter of law maintained by the court seems to have been that the descrip- 
 tion was complete, clear, and certain in itself, and that therefore no extrinsic 
 evidence could be admitted ; that as the plan was not mentioned in the deed 
 it could not be referred to ; and that to the court it appeared that the intention 
 of the parties was that the third line be perpendicular to Dix street, and not 
 parallel to W. street. 
 
 It may be said that generally areas are a direct function of the distances, 
 and therefore when compared with courses they should not be given much 
 weight in deciding which should control; but in such a case as the one just 
 considered it seems that the area affords, to say the least, sufficient evidence 
 to show that the angle could not be a right angle, and to create an uncer- 
 tainty sufficient to allow evidence outside of the deed. This case is cited to 
 prove that courses may be taken as governing distances. It was not decided 
 on that ground, but rather upon the ground mentioned, that it best carried 
 out the evident intention of the parties. 1 
 
 A similar but plainer case came up in the New York courts for construc- 
 tion. Land situated in a city block near an obtuse-angled corner was 
 described as " Beginning at ... running thence northeasterly, along Grove 
 Street, 25 feet; and thence northwesterly and parallel with Woodruff Avenue, 
 1 08 feet 9 inches, to lot No. 80 on said map; thence southwesterly, along lot 
 No. 80, 25 feet; and thence southeasterly parallel with Woodruff Avenue, 
 1 08 feet 9 inches, to the westerly side of Grove Street, the point or place of 
 beginning." Lines drawn from Grove Street, 108 feet 9 inches, parallel to 
 Woodruff Avenue, would not reach lot No. 80 by 5 inches, and it was held 
 that there was a mistake in describing the length of the lines parallel to Wood- 
 ruff Avenue, and that it was intended that they should extend 109 feet 2 
 inches, and not that they should run in. such a direction that thej' would reach 
 lot 80 at a distance of 108 feet 9 inches from Grove Street. It being clearly 
 stated in the deed that the lines of the lot were parallel to Woodruff Avenue, 
 the court held that the fact that the corresponding lines in the conveyances 
 of neighboring property were at right angles to Grove Street, instead of being 
 parallel to Woodruff Avenue, was immaterial. 2 The effect of such a decision 
 upon the adjoining property owners will be appreciated by surveyors, if other 
 lots had been laid out perpendicular to Grove Street. 
 
 A specific grant of land by courses and monuments cannot be enlarged so 
 as to change a line described as running " south " to " southeast," by the 
 
 1 Hall v. Eaton, 139 Mass. 217. App. Div. 34. But see Airey v. Kunkle 
 
 a Casey v. Dunn, 8 N. Y. Supp. 305 (C. P.), 6 Pa. Dist. Rep. i, 18 Pa. Co. 
 
 [1890]; Airey v. Kimble, 42 Atl. Rep. Ct. 620. 
 
 533. See Phillips v. Ritter (N. Y ), 20 
 
5^8. OPERATIONS PRELIMINARY TO CONSTRUC7^ION. 406 
 
 words " meaning to convey the north half of" the farm of which the land- 
 conveyed was a part. 1 
 
 588, Calls for Courses and Distances against Area or Acreage, Courses 
 and distances will always control quantity where the intention is not 
 definitely ascertained. As quantity or area is directly dependent on courses 
 and distances, being calculated from them, it should be controlled by them. 
 If the distances and angles of a survey are wrong, the area is likely to be 
 erroneous, and therefore area is held the last and the least important ele- 
 ment of a description. This is the universal law. Metes and bounds and 
 other descriptive calls in a deed will control the call for quantity unless it 
 clearly appears to have been the intent of the grantor to give only a definite 
 quantity. 2 
 
 The metes and bounds govern the quantity unless it appears beyond con- 
 troversy that the quantity was one of the principal conditions of the contract. a 
 
 The mention of the acreage or area of a field after a description is not a 
 warranty of quantity, unless the warranty is expressed. Thus the following 
 clause inserted after a description by metes and bounds, ' ' and containing by 
 survey 250 acres," is descriptive merely and not a warranty of quantity; and 
 although the same deed describes and conveys another tract in less definite 
 and more cautious language, e.g., "the exact number of acres being 
 unknown, but containing by estimate 120 acres, be the same more or less," 
 this difference of phraseology does not show that a warranty was intended as 
 to the quantity in the tract. 4 
 
 A deed conveying land by metes and bounds, and further describing it as 
 containing a certain number of acres, more or less, which was more than was 
 actually included in the description, and as being the premises now in the 
 possession of the grantor and formerly conveyed to him by a third person, will 
 not be held to include a tract of wild land situated some distance from the 
 other, though the amount of land in such tract would make up the amount 
 described in the deed, and though it was purchased from such third party. 5 * 
 
 589. Quantity of Land a Factor in a Description, Little importance is 
 attached to the acreage named in a description, as "34.69 of an acre, half of 
 the south side of the southeast side of section 14," when this is immediately 
 
 1 Reed v. Knights, 87 Me. 181. 173 [1865]; Farbell v. Bowman, 103 Mass. 
 
 J Evans' Adm'r v. Temple, 35 Mo. 494; 341 [1869!; Hodges v. Denny (Ala.), 5 So. 
 
 Colter z/. Mann, 18 Minn. 96; Rioux v. Rep. 492 [1889]. 
 
 Cormier (Wis.), 44 N. W. Rep. 654; * Thayerz/. Finton, 108 N. Y. 394 [1888] ; 
 
 Hodges v. Denney (Ala.), .5 So. Rep. Paine v. Upton, 87 N. Y. 327 [1882]; 
 
 492; Doe v. Vallejo, 29 Cal. 386; Quillen Lobit v. McClave (Tex.), 28 S. \V. Rep. 
 
 v. Betts (Del ), 39 All. Rep. 595 [1897]; 726; Silver Creek Cem. Co. v. Union 
 
 Ratliff v. Burleson (Tex.), 26 S. W. Rep. Lime & Cem. Co. (Ind.), 35 N. E. Rep. 
 
 1003: Raymond v. Coffey, 5 Oreg. 132 125; Lipscomb v. Underwood (Tex.), 27 
 
 [1873]; Hess -v. Cheney (Ala.), 3 So. Rep. S. W. Rep. 155. 
 
 791 [1888]; Thompsons. Sheppard (Ala.), 5 Thayer v. Finton, 108 N. Y. 394. 
 
 5 So. Rep. [1889]. [1888]. But see Pierce v. Brown, 24 Vt, 
 
 3 Bd. of Commrs. v. Younger, 29 Cal. 165 [1852]. 
 
 * See Sees. 596, 597, infra, More or Less. 
 
407 CONFLICT OF CALLS IN DESCRIPTION. 
 
 followed by a description giving the corners and boundaries of the land. 1 A 
 phrase in a deed following the description, "containing 111.7 acres," is a 
 representation only and not a warranty of quantity. Oral evidence is 
 inadmissible to show that there was such a warranty of quantity. 2 
 
 When there is ambiguity in a description the quantity of land specified 
 should be considered by the jury in connection with the boundaries named 
 and other data, to determine what the true boundary is. 3 
 
 The rule that monuments or objects mentioned in the deed control metes, 
 and bounds is not an inflexible one. It applies only when the intention of 
 the parties has been left in doubt by the language of the conveyance. 4 The 
 distances and quantity are entitled to some weight in getting at the intention, 
 of the parties, especially where they more nearly harmonize with one theory 
 than with the other. Where a description applied to two tracts of land one 
 of which went down the meanders of a stream about three-quarters of a mile, 
 and the other a mile and a quarter, the one making about twenty-five acres, 
 and the other three hundred and forty acres, and where the description called 
 for twelve acres more or less, it was held that the court could come to but 
 one rational conclusion, and that was that the nearer monument was properly 
 taken. 5 
 
 A patent is not invalid because embracing 10,000 acres while calling for 
 only 8000. 6 A mistake in a mortgage by which "2000 acres more or less" 
 is written "200 acres more or less," but where the boundaries are correctly 
 described, is sufficient notwithstanding the mistake in quantity; it is sufficient 
 to give notice to the subsequent mortgagor. 7 Any excess in the quantity of 
 land in the survey will not be considered unless it will assist in determining 
 the original location of the disputed line. 8 
 
 A grantor may be bound by the express terms of his contract of sale in 
 respect to quantity. 9 
 
 590. Effect of Representations as to Quantity. With every contract of 
 sale there is annexed a warranty that the thing bought or sold shall correspond 
 with the representation made at the time of concluding the contract of sale 
 between the parties. Especially is this true with regard to quantity, though 
 it is largely overlooked with regard to quality. Such a warranty is neither 
 waived nor destroyed by the use of the words "more or less" when the 
 number of acres has been specified, and if the error, afterwards discovered, is 
 
 1 Stevens v. Wait, 112 111. 544. v. Smith (Sup.), 26 N., Y. Supp. 103. 
 
 2 Hobein v. Frick, 69 Mo. App. 262 6 Ballowe v. Hillman (Ky.), 37 S. W. 
 [1897]. Rep. 950. 
 
 3 Cavazos v. Trevino, 6 Wall. 773 7 Kennedy v. Boykin (S. C.), 14 S. E. 
 
 [1867]; Campbell v. Carruth (Fla.), 13 Rep. 809. 
 
 So. Rep. 432; Hoffman v. Port Huron 8 Branch v. Simons (Tex.), 48 S. W. 
 
 (Mich.), 60 N. W. Rep. 831. Rep. 40. 
 
 4 People i>. Jones, 112 N. Y. 597 [1889]. 9 Heyer v. Lee, 40 Mich. 353 [1879]. 
 
 5 Doe v. Vallejo, 29 Cal. 386; Cochran 
 
59 a OPERATIONS PRELIMINARY TO CONSTRUCTION. 408 
 
 greater than what might reasonably be expected from the variation of instru- 
 ments and similar causes. 1 
 
 Where one who buys a piece of land at a price per square foot, paying for 
 a certain number of feet, represented by a plan having metes and bounds and 
 dimensions, and the number of square feet of the lot is considerably less than 
 what he has paid for, he may recover back the amount paid for it in excess 
 of the actual area. This was so held where the mistake was not discovered 
 until six months after the sale, the purchaser not having been guilty of laches. 2 
 If the buyer had the means of ascertaining the quantity of the land bought 
 and did not do so, it seems that equity will afford him no relief on the ground 
 that the seller misrepresented the quantity. 3 
 
 Where an qwner of property innocently but incorrectly states the quantity 
 of land contained in his farm, and a purchaser, in reliance upon his statement, 
 enters into a contract and takes a deed, the purchase-price being estimated at 
 a price per acre, and where it is subsequently discovered that the quantity 
 stated is materially less, he is entitled to the assistance of the courts to correct 
 the mistake. The purchaser is not deprived of his remedy by the addition of 
 the words " more or less " to the statement of the quantity contained in the 
 deed. The words "more or less" were held not to import a special agree- 
 ment that the purchaser takes the risk of the quantity, nor are they equivalent 
 to a stipulation that, if a mistake be discovered, there shall be no relief. 4 
 
 If there was neither fraud, nor mutual mistakes, nor representations as to 
 the number of acres, and there was no particular purpose mentioned which 
 required that the contract should contain a certain number of acres, then no 
 allowance can be made tor any deficiency in the acreage. 5 If the intention 
 of the parties was to make a sale of a quantity of land specified, and the price 
 paid was computed at a fixed rate on the quantity named, and the deed was 
 made and accepted and the business transacted under a mutual mistake of 
 fact, and there is nothing in the terms of the deed which manifests an inten- 
 tion to waive or change the original terms of the sale, the purchaser may 
 recover for a deficiency in quantity. 6 
 
 Some courts hold that considerable variance should be allowed even where 
 it results from mistake only, in the absence of fraud or deception. 7 If the 
 contract be not executed and there be actual misrepresentation as to the 
 quantity of the land, even though not fraudulent, and the mistake be so 
 essential that the contract would not otherwise have been entered into had 
 the parties known, then equity will grant relief. The same doctrine has been 
 applied to executed contracts. 8 In patents for land granted by the state 
 
 ^endleton v. Stuart (Va.), 5 Call i; * Paine v. Upton, 87 N. Y. 327 [1882]. 
 
 Caldwell v. Craig (Va.), 21 Gratt. 137; 5 15 Amer. & Eng. Ency. Law 721. 
 
 Jollife v. Hite (Va.), i Call 301. 6 Paine v. Upton, 87 N. Y. 327; Tarbell 
 
 a Farbell v. Bowman, 103 Mass. 341 v. Bowman, 103 Mass. 341; Miller v. 
 
 [1869]. Craig, 83 Ky. 623. 
 
 8 Bd. of Commrs. v. Younger, 29 Cal. 7 Hill v. Buckley, 17 Ves. 401. 
 
 173 [1857]. 8 I5 Amer. & Eng. Ency. Law 721. 
 
409 CONFLICT OF CALLS IN DESCRIPTION. 5QO. 
 
 there is an undertaking on the part of the state that the land described shall 
 contain the number of acres specified, and the excess or deficiency permitted 
 by the use of the words "more or less " is restricted to the reasonable amount 
 due to small errors in surveying and to variations in instruments. The 
 remedy for a deficiency in such a case has been held to lie, not in making good 
 the pecuniary loss, but in the addition to the contract patent of adjoining 
 vacant land under a warrant of a resurvey. 1 
 
 If it be clear that the intention was to convey only the quantity 
 mentioned, then the conveyance must include that quantity and need contain 
 no more. Parol evidence may be allowed to show that the sale was in fact 
 by the acre, if there be any uncertainty in the description by metes and 
 bounds. 2 
 
 If, however, the intention to convey a particular tract or a particular 
 quantity is clear although the parties have given an incorrect specific 
 description of it, the tract or quantity will pass. 3 A call for a lot by the 
 name or number which it bears on a plat of the land was held to prevail over 
 courses and distances, and ordinarily over calls for monuments, 4 it being 
 evident that it was the intention to convey the lot by the plat. A party 
 purchasing lots on the margin of a town- site purchases only the land 
 contained within said lots, and cannot recover from a grantor a sufficient 
 amount of land owned by said grantor adjoining said lots outside the limits 
 of said town-site to make up a deficiency in the size thereof. 5 
 
 Where, however, a block consisting of twenty-two lots had been purchased 
 and a warranty deed received, and where, at the time of the purchase, a plat 
 was exhibited to the purchaser which showed that the lots were 25 feet wide 
 by 100 feet deep, it was held that the purchaser had a cause of action for 
 damages when it was discovered that part of the lots were only 60 feet deep 
 because of some mistake in the original plat, and that this was so regardless of 
 whether the representations were made knowingly or by mistake. 6 And where 
 a tract of land was located by a surveyor and the corners marked by stones, 
 and the lines by furrows plowed to and from the corners, and the owner in 
 offering it for sale stated the boundaries as they had been thus established, 
 and represented to the purchaser that they were the true boundaries, and that 
 the tract was the east 174 acres of survey No. 2, and the tract was conveyed 
 and described as the " east 174 acres of survey No. 2," giving no field-notes, 
 the tract as marked by the boundaries overlapping an adjacent survey on the 
 south some 72 varas, this fact being unknown to the parties at the time of the 
 
 1 Hoffman v. Johnson (Md.), I Bland * O'Herrin v. Brooks (Miss.), 6 So. Rep. 
 Ch. 103. 844. But $ee Thompson v. Ladd, 169 
 
 2 Hodges v. Denny (Ala.), 5 So. Rep. 111. 73- 
 
 492 [1889]; Doe v. Vallejo, 29 Cal. 386. 5 Clark v. Farnsworth (Kan.), 53 Pac. 
 
 3 Colter v. Mann, 18 Minn. 96; Rioux Rep. 93 [1898]: Leon, etc., Co. v. Dun- 
 v. Cormier (Wis.), 44 N. W. Rep. 654; lap (Tex.), 23 S. W. Rep. 473. 
 Richwine v. Jones (Ind.), 39 N. E. Rep. 6 SeaiSt/. Stinson (Wash.), 29 Pac. Rep. 
 460. 205. 
 
5 9 1 - OPERA TIONS PRELIM IN A RY TO CONS TR UCT20N. 4 1 
 
 sale, it was held that the grantor's warranty applied to the land pointed out 
 by him at the time of the sale, though the description in his deed did not 
 include the strip from which the grantee had been ejected. 1 
 
 591. " More or Less " Meaning of Words when Quantity is Stated. 
 The cases given in the last section can hardly be reconciled with a large num- 
 ber, unless it be on the ground that the element of misrepresentation, of fraud, 
 or of mutual mistake did not exist in the cases here presented, or that the 
 purchaser or grantee had the means and opportunity to determine the quan- 
 tity and did not take pains to do so. These cases hold that the use of the 
 words " more or less " in a deed, after enumerating the number of acres in a 
 tract of land, implies a waiver, on the part of the buyer, of a warranty as to 
 the specific quantity in a contract, and an agreement on the part of the seller 
 not to demand more than the fixed price. If, on the one hand, there should 
 be an excess or, on the other, a deficiency in the quantity named, it is under- 
 stood that both parties are willing to abide by such presumptive or probable 
 evidence of the quantity, but of which quantity neither pretends to have an 
 accurate and perfect knowledge. The use of these words in a statement of 
 the number of acres makes that statement descriptive merely, and it is not 
 of the essence of the contract. 2 
 
 The risk as to the quantity of land described is mutual; and if such 
 quantity exceed or be less than that named, there can be no recovery on either 
 side for the excess or deficiency, even though it be large. 3 
 
 Where land is sold by the acre at a public auction, the vendor saying that 
 he will sell it as a specific number of acres more or less, and that it shall be 
 measured, the vendee is required to take it though the quantity be largely in 
 excess of that specified at the sale and in the public advertisement. 4 
 
 The addition of the words " more or less " to the description makes a sale 
 of land one in gross, and not by the acre, even where the amount named is 
 an exact multiple of the number of acres named. This has not been the 
 universal construction, however, for the courts have sometimes held that the 
 words did not imply a special agreement that the purchaser took the risk of 
 the quantity, being held to cover ^ only a reasonable excess or deficiency such 
 as might be caused by differences in surveys or variations in instruments, or 
 similar reasonable causes. 
 
 592. " More or Less "Variation in Quantity Stated Permissible. Some 
 courts have taken an intermediate position and have held that a reasonable 
 variance was permissible. As instances the words " more or less " have been 
 held in the different states to cover a conveyance of real estate in which the 
 amount of variation was as follows: In Kentucky an excess of 56 over 425, 
 
 iMeade v. Tones (Tex.), 35 S. W. Rep. 8 15 Amer. & Eng. Ency. Law 717- 
 
 3I0 . * Ashcorn v. Smith (Penn.), 2 P. & W. 
 
 2*15 Amer. & Eng. Ency. Law 717; 211. And see Delaware v. Smith, i Del. 
 
 Thayer v. Finton, 108 N. Y. 394 [1888]; Ch. I. 
 Coleman v. M. B. Ins. Co., 94 N. Y. 229. 
 
411 CONFLICT OF CALLS IN DESCRIPTION. $93. 
 
 or of 283 over 2000 acres, or a deficiency of n under 98 acres was permitted; 
 but an excess of 33 over 72 acres, or a deficiency of 67 under 610 (in the 
 presence of fraud), was held to exceed the reasonable limit covered by the 
 words * ' more or less. ' ' 
 
 In New York the courts have allowed a deficiency of 10 in 96, or of 5823 
 in 17,466, or of 5 in 75 feet; but the reasonable limit was held to have been 
 exceeded when the deficiency was 9 in 98, 1 6 in 222, or 3 in 8 acres. New 
 Jersey permitted a variation of 3 in 39, but refused to recognize a variation 
 of 20 in 135 when there was a mistake, or of 3 in 15 in case of mistake. 
 
 In Maryland the words " more or less" have been held to include a 
 deficiency of 28 in 173, 55 in 998, 104 ki 482, 53 in 187, 14 in 100 acres; 
 but a deficiency of 22 acres in 424 was held to exceed the limit. The state 
 of Indiana has permitted a deficiency of 54 'acres in 451, or of 12 in 42, but 
 has refused to include in the expression a deficiency of 7 in 320 (in the pres- 
 ence of fraud), or of 37 in 140 (in the presence of fraud). 
 
 Massachusetts has upheld a conveyance when there was an excess of 3 in 
 85 or a deficiency of 50 in 220 acres, and Virginia permitted a deficiency of 
 1 60 out of 1 1 oo, but refused to permit a deficiency of 115 in 552, or of 135 
 in 900, when the vendor knew of the deficiency. 
 
 Alabama has permitted the words to include a deficiency of 3 1 in 500, but 
 not of 25 in 100 acres; while the courts of Arkansas granted relief for a 
 deficiency of 84 in 1 80, on the ground of gross mistake. 
 
 The courts of Minnesota allowed a deficiency of 2.85 in 20 acres; 
 Mississippi, 20 in 100 acres. 
 
 Iowa has held the limit to be unreasonable when the deficiency was 8 in 
 30; Texas, 115 in 500; and North Carolina, i in 5. 1 
 
 It has been held that such excess or deficiency ought not to exceed ten or 
 fifteen per cent. 2 Another case held that twenty per cent was too great. 3 
 
 593. " More or Less " when Land is Described by Metes and Bounds. 
 When the boundaries are defined by metes and bounds the grant will not be 
 enlarged by the words "more or less." It is neither limited nor extended by 
 the words, which are supposed to have been used, in the absence of positive 
 knowledge of the boundaries or of the acreage, for the very purpose of avoiding 
 a statement which should be conclusive on the parties. 4 
 
 If, in a contract of sale, land is described by metes and bounds or by the 
 insertion of the words " more or less " or equivalent words, the statement of 
 the quantity of land, if found to exceed or be less than the amount named, 
 will not entitle the purchaser or the seller to relief when it is discovered that 
 the quantity stated is not correct, unless the difference be so great as to raise 
 
 1 See 15 Amer. & Eng. Ency. Law 719, Eq. 376. 
 
 and many cases cited. 4 15 Amer. & Eng. Ency. Law 720. See 
 
 2 Fannin v. Bellamy (Ky.), 5 Bush 663. Lobit v. McClave (Tex.), 28 S. W. Rep. 
 
 3 Gentry v. Hamilton (N. C.), 3 Ired. 726. 
 
595- OPERATIONS PRELIMINARY TO CONSTRUCTION. 412 
 
 a presumption of fraud or of a gross mistake in some matter which has been 
 made the essence of the contract. 
 
 595. "More or Less" Applied to Linear Distances. When applied to 
 distances the words " more or less " have the same significance. A distance 
 designated as between two points described and as being "350 feet more or 
 less" includes all between the points or monuments named though it be more 
 than 350 feet. 1 The words " a little more or less " seem to have no special 
 significance when compared with " more or less." 2 
 
 596. "More or Less" in Trade or Commerce. In the sale of personal 
 property the words "more or less" are held to have no such meaning 
 ordinarily as in the sale of land. Goods, wares, and merchandise are usually 
 sold at the unit weight or measure, and the words "more or less" are 
 inserted in order to cover variations of estimate due to differences in weight, 
 errrors in counting, and diminution by shrinkage and other similar causes. 
 Parol evidence will not be admitted to show that the parties intended to buy 
 or to sell a different amount from that stated in their written contract. 3 
 
 597. Excess or Deficiency How Distributed. When the distance 
 between two corners is in excess of that called for by the field-notes, the 
 boundary should be determined by apportioning such excess to the two 
 surveys whose corners are found. 4 
 
 Where the description of land in a deed calls for a legal subdivision of a 
 section of surveyed land, the quarter-section corners being lost, and the 
 section exceeding 640 acres in area, the division-lines of the fractions of the 
 section are determined by a division pro rata of the lines of the section as they 
 appear upon the ground. 5 
 
 Where one purchases from the state the east half of a certain surveyed 
 section, and another purchases the west half, and it afterwards appears that 
 all of the east half except 67 acres is covered by a prior survey, of which fact 
 the land commissioner has no knowledge, and all parties believe each 
 purchaser has a full half-section, then there is a mutual mistake, and the 
 purchaser whose land is short cannot recover any portion to make up the 
 deficiency in his east half. 6 
 
 The regulations of the United States General Land Office require that 
 where the quarter section corners of exterior sections bounded on the north 
 or west by township or range lines cannot- be found, the interior corner of any 
 such section shall first be found and established ; from which exactly forty 
 chains shall be measured along the line in the direction of the township or 
 range line, and at that point the quarter-section corner is to be placed: this 
 
 1 Gonzales v. Leon, 31 Cal. 98 [1866]. *Knippa v. Umlang (Tex.), 27 S. W. 
 
 * United States v. Fossat (U. S.), 2 Rep. 915. 
 
 How. 413; United States v. Estudillo, I 5 Eshleman v. Malter (Cal.), 35 Pac. 
 
 Hoffm. L. Cas. 204; 15 Amer. & Eng. Rep. 860. 
 
 Ency. Law 722. 6 Creech v. Davidson (Tex.), 238. W. 
 
 3 15 Amer. & Eng. Ency. Law 722. Rep. 995. 
 
413 CONFLICT OF CALLS IN DESCRIPTION. $98. 
 
 always leaves the excess or deficiency to the quarter directly on the township 
 or range line. And it makes no difference whether the fraction contains 
 more or less than the number of acres shown by the government field-notes. 
 Where the statute of a state conflicts with the regulations of the United States 
 Land Office on this subject, the latter must govern. Where the original 
 quarter-section corners of interior sections cannot be found or proved, they 
 are to be established at a point equidistant from the corresponding corners of 
 the section. 1 
 
 Where two surveys made by the same surveyor at about the same time call 
 for a common division-line, and are mapped as adjoining, the fact that an 
 excess exists in the amount of land included in one or both along the line of 
 junction is not sufficient reason for separating them in favor of one subse- 
 quently locating on such excess; 2 but if a tract of land be described by metes 
 and bounds, the monuments described or designated, or the lines bounding 
 the" tract located by a surveyor, and the boundaries or survey so located or 
 designated as to leave a gore or strip of land intervening between the tract 
 described and the adjoining estate, the limits of the tract conveyed will be 
 confined to the monuments and lines described or located, and the gore or 
 strip between the estates will not pass by the deed. 3 
 
 A custom of surveyors of land to overrun the exact measures is admissible 
 to show that the boundaries of an ancient grant described by courses and dis- 
 tances exceeded the distances given in the deed. 4 But the proof of such a 
 custom must be certain and undoubted, 5 
 
 598. Description by Lot Number of Map or Plan Referred to.* Boun- 
 daries of land sold by plan with a brief description or memorandum, such as is 
 used in real-estate offices, are generally controlled by the plan, and by monu- 
 ments and lines marked upon it, even though the area be given. In a con- 
 veyance, a lot was described by reference to a schedule annexed, and the 
 schedule consisted of four columns: in the first was the number of the lot on 
 the plan of the estate, the number being "153^"; in the second column, 
 headed "Description of premises," the lot was described as "a small piece 
 marked on plan," in the third column noted as being "occupied by J. E.," 
 and in the fourth column as containing "34 perches." At the time of 
 making the contract of purchase a line had been drawn upon a plan, which 
 was to scale, dividing the lot " I53< " from the remainder of a larger lot. 
 
 The quantity called for in the schedule, and that included by the line so 
 drawn upon the plan, by scale, and the area found by actual measurement of 
 
 knight v. Elliott, 57 Mo. 317 [1874]. E. Rep. 431. But see Titus v. Morse, 40 
 
 2 Stanus v. Smith (Tex.), 30 S. W. Rep. Me. 348 [1855], 
 
 262. * Owen v, Bartholomew, 9 Pick. 
 
 3 Frost v. Spaulding, 19 Pick. 445 (Mass.) 520 [1830]. 
 
 [1837]; Reed v. Phillips (Tex.), 338. W. 6 Lawson on Usage 35; Wait's Engiru 
 
 Fep. 986; Mendel v. Whiting (111.), 31 N. and Arch. Jurisp., 609. 
 
 * See Sees. 613-618, infra. 
 
' 599- OPERATIONS PRELIMINARY TO CONSTRUCTION. 414 
 
 the land itself, were found to differ. The court held that the statement that 
 the land conveyed contained 34 perches was merely a false demonstration, 
 that the prior description was sufficient to convey it, and that the deed passed 
 only the portion actually marked off and shown on the plan as measured by 
 scale. 
 
 Where the boundary-lines of lots conveyed by lot-numbers are incorrect 
 or are wrongfully stated as to length, it will not prevent the whole of the lot 
 as shown upon the plat from passing; and if there is a shortage on the plat 
 in which the owner intended to convey all his property, such shortage will be 
 divided as nearly as possible pro rata between the grantees of the respective 
 lots. 1 
 
 Where the monuments of the original survey of a town-site have been 
 destroyed, the descriptive words in a plat of the town site are controlling as 
 to the location of the town-site. 2 The map or plan referred to in a descrip- 
 tion stands upon the same footing as a monument, and if the map be a public 
 record it is of even higher authority. 3 
 
 If there be two descriptions of the land conveyed which do not coincide 
 ;and are not of equal weight, the grantee is entitled to hold by that which is 
 most beneficial to him. 4 
 
 Where a fractional lot is conveyed, the grantee is bound by the distances 
 given, even if reference is made to an official map. 5 
 
 599. Monuments Designated on Map against Monuments on Land. 
 That which is most certain should control. A map or plat of an addition 
 implies a previous survey and marking upon the ground so as to render 
 admissible evidence of the existence and location of the stakes marking such 
 .survey. 6 
 
 Where reference had been made to a map and also to a deed, which latter 
 did not fix any monument at the starting-point which could be determined 
 with accuracy, and where the line was described as terminating at "the base 
 of the mountain " and then turning down at right angles and following down 
 the base of the mountain, and the character of the country was such that wit- 
 nesses might differ as to the location of these lines, but the map referred to 
 represented all the natural and artificial objects found upon the land, such as 
 streams, buildings, and roads, and there was conflict between the description 
 as found in the deed and the boundaries laid down upon the map, it was held 
 
 1 C. S. & C. R. R. Co. v. Tuttle, 7 Ohio * Melvin v. Proprietors, etc., 5 Met. 15 ; 
 
 Dec. 63. Estey v. Baker, 50 Me. 325, 525; Vance 
 
 2 Sperry v. Wesco (Oreg.), 38 Pac. Rep. v. Fore, 24 Cal. 443; Lunt v. Holland. 14 
 
 623. Mass. 149; Glover v. Shields, 32 Barb. 
 
 3 Parks v. Loomis, 6 Gray 467; Lunt v. 380; Willard on Real Estate, 403; 3 Wash- 
 Holland, 14 Mass. 149; Vance v. Fore, 24 burn's Real Prop. 333, 343; Colter v. 
 Cal. 443; Buchanan v. Roy's Lessee, 2 Mann, 18 Minn. 96 [1871]. 
 Ohio St. 263; Magoun v. Lapham, 21 5 Hostetter v. Los Angeles Terminal 
 Pick. 135; Mclver v. Walker, 9 Cranch Ry. Co. (Cal.), 41 Pac. Rep. 330. 
 173; Fuller v. Dauphin (111.), 16 N. E. ' 6 Burke v. McCowen (Cal.), 47 Pac. 
 Rep. 917 [1888]. Rep. 367. 
 
415 CONFLICT OF CALLS IN DESCRIPTION. $99. 
 
 that the description presented by the map must be adopted as the one most 
 stable and the least likely to be affected by mistakes. 1 
 
 Maps equally with descriptions, in a deed, must be interpreted with regard 
 to the monuments found on the ground. Where the lines of a street on a 
 map referred to in a deed differ from those laid out by the city before the 
 platting of the land, the latter prevail. 2 The boundaries are determined by 
 lines as actually run on the ground as shown by the surveyor's stakes, rather 
 than the lot-lines as shown by the plat. 3 
 
 A survey once placed upon the face of the earth must control a plan that 
 is made from it, although the plan, when placed upon the earth, would locate 
 the line elsewhere, 4 even though the grantee has not seen the line on the 
 ground. 5 But if the boundary be between the grantor and the grantee, and 
 the monuments are hidden and private and the grantee had no notice of 
 them, then the courses and distances named in a plat to which a deed refers 
 must govern rather than the line as actually located upon the land. 6 
 
 A description of a deed conveying a lot and house thereon was referred to 
 by lot and block numbers of a map of record. By the map the lot was only 
 twenty-three feet four inches wide, and the house, erected long before the sale, 
 was twenty-five feet wide and lapped upon the adjoining lot. The reference 
 to the map was held so important that it was permitted to control in spite of 
 the fact that the house itself constituted a monument in the field. The 
 owner of the adjoining lot having succeeded in an ejectment suit, the courts 
 refused an injunction restraining execution, and held that the house-owner had 
 no equity although it was alleged that his grantor, who had formerly owned 
 both lots, had represented that he was the owner of the house and lot, but 
 had failed to state that he was at the time the owner of the next lot. It was 
 held that the house-owner was put upon inquiry as to the width of his house- 
 lot by the reference to the map in his deed. 7 
 
 In like manner in the following description, a parcel of land was described 
 as follows: " Commencing at a point on J. St. 100 feet from the corner of 
 J. and F. Sts., thence S. along J. St. 50 feet, thence at right angles eastward 
 119 feet, thence northward 50 feet, thence westward toward place of beginning 
 119 feet, the same being the south \ of lots 6 and 7 in block 16 of the town 
 of St. P. proper/' The town plat showed the line on J. St. to be 150 feet, 
 but in fact it was only 145^ f ee t. One-third of the lots would give 48^ feet 
 on J. St., while according to the survey 100 feet south of the corner would 
 
 1 Vance v. Fore, 24 Cal. 436 [1864]; W. Rep. 702. Semble, Butler v. Vicks- 
 
 Jeffries v. E. Omaha Land Co., 10 Sup. bur? (Miss.), 17 So. Rep. 605. 
 
 Ct. Rep. 518. 5 Smith v. Boone (Tex.), 19 S.W. Rep. 
 
 Hastings v. McDonough (App. Div.), 702. 
 
 43 N. Y. Supp. 628. 6 Whhehead v. Atchison (Mo.), 37 S. 
 
 City of Decatur v, Niedermeyer, 16*8 W. Rep. 928. 
 
 HI. 68. i Anglecey v. Colgen (N. J.), 9 AtL 
 
 * Stetson v. Adams (Me.), 30 Atl. Rep. Rep. 105 [1887]. 
 575 [1898]; Smith v. Boone (Tex ), 19 S- 
 
600. OPERATIONS PRELIMINARY TO CONSTRUCTION. 416 
 
 give but 45 1 feet on J. St. It was held that the south \ of the said lots 6 and 
 7 passed by the deed. 1 
 
 600. Conflict Between Plat and Field-notes of Public Land. When the 
 plat and the field-notes of the original survey of public land do not agree, the 
 former must control since it represents the lines and corners as fixed by the 
 surveyor-general and by which the land was sold. 2 In the absence of original 
 monuments the plat will control. 3 
 
 The return of a tract of land from the board of proprietors prevails over a 
 map on file in the surveyor's office attached to the original survey, in case of 
 an inconsistency between the two in defining the boundaries of the tract. 4 
 
 Where land is bought at public auction, the purchaser having before him 
 an official map showing the size of each parcel sold, and where the deed 
 describes the land as a certain numbered lot shown on the map, and also by 
 metes and bounds, and the descriptions do not agree as to the size of the lot, 
 the dimensions on the map control. 5 
 
 Where officers of a corporation were authorized to convey "the W. -J- of the 
 E. -J- of lots 10 and n" and the officers, after so describing the land, added 
 without authority a specific description by metes and bounds, which they 
 supposed covered the same property, it was held that the first description 
 prevailed. 6 
 
 If land be described by giving the number of the certificate of survey and 
 not by metes and bounds, such number becomes an essential part of the 
 description. 7 Where a surveyor establishes two initial points on the ground 
 itself, and from these the remaining surveys are plotted in on a map, and in 
 the plot calls are made for a river, the true course of which the surveyor ha& 
 mistaken, the surveys must be run out as plotted, the calls for the river yield- 
 ing to course and distance. 8 
 
 Where lots are conveyed by numbers according to a plat and also as one 
 piece of land bounded by "the Philadelphia and Morristown Railroad," 
 which appeared on the said plan of streets as a platted street 120 feet wide, 
 the center of which was a railroad right of way 66 feet wide, with a strip 27 
 feet wide on each side thereof intended by the city as a public street, it was 
 held that the grantee's title as against the grantor extended to the middle of 
 the street, subject to the existing rights of the railroad, the city, and other 
 owners of lots. 9 
 
 1 Colter v. Mann, 18 Minn. 96 [1871]. So. Rep. 844. See Chaflin v. Gantz 
 
 2 Beaty v. Robertson (Ind.), 30 N. E. (Sup.), 39 N. Y. Supp. 712. 
 
 Rep. 706 [1892], many cases cited ; Elliott 6 Novotny v. Danforth (S. D.), 68 N. 
 
 v. Gibson (Ky.), 29 S. W. Rep. 620; W. Rep. 749- But see Waldin v. Smith 
 
 Turner v. Union Pac. Ry. Co. (Mo.), 20 (la.), 39 N. W. Rep. 82 [1888]. 
 
 S. W. Rep. 673. 7 Rogers v. Concho C. Co. (Tex.), 38 
 
 8 Lampe v. Kennedy, 49 Wis. 601 S. W. Rep. 656. 
 
 [1880]. 8 New York & T. Land Co. v. Thom- 
 
 * Allaire v. Ketcham (N. J. Ch.), 35 son (Tex.). 17 S. W. Rep. 920. 
 
 Atl. Rep. 900. 9 Dobson v. Hohenadel (Pa. Sup.), 23 
 
 5 Masterson v. Munro (Cat.), 38 Pac. Atl. Rep. 1128. 
 Rep. 1106; O'Herrin v. Brooks (Miss.), 6 
 
417 CONFLICT OF CALLS IN DESCRIPTION. 603. 
 
 601. Older and Later Surveys and Grants Their Relative Value. In 
 case of conflict an older grant will prevail over a later grant founded on an 
 older entry; the entry not being in evidence and nothing else appearing. 1 
 Where a junior suney was located between the lines of two older surveys, 
 east of one and west of another, the older surveys must be determined by 
 their field-notes, and, when ascertained, they fix the location and quantity of 
 the junior dependent survey. 2 When the surveys overlap one another, the 
 one first made will have the priority, especially when the second survey is 
 bounded by express reference to the first. Calls of a second sufrvey conflicting 
 with monuments and calls of a first survey must yield thereto. 3 
 
 In ascertaining boundaries from title-papers, he who has the oldest title is 
 entitled to take his courses and distances, go where they may. 4 A call for 
 the lines of the older survey, as that of an adjoiner, will control a call for a 
 distance. 5 
 
 Parol evidence is not competent to prove the existence of older and 
 superior titles to land, since the grants and titles themselves are the best 
 evidence. 6 Proof of a record of a prior location, and the marking of it on 
 the ground, will not defeat a subsequent location, in the absence of proof of 
 a discovery by the prior locators. The record and the marking are not suffi- 
 cient to authorize the court to presume a discovery. 7 
 
 There is no rule that if clauses in a description of land are repugnant, 
 the first necessarily prevails over the last. 8 
 
 603. Azimuths, Bearings, and Points of Compass Meaning of Words. 
 ''North" and "northerly" in a description in a deed have been held not to 
 be synonymous. 9 The words " northerly and easterly" maybe held more 
 comprehensive in significance than " north and east," depending largely for 
 their meaning upon the circumstances to which they are applied. If there be 
 no object to which the course is directed, they must, at least in a description 
 in the deed, be taken to indicate a direction due north or east; but when there 
 are monuments to which they are applicable they may have their ordinary 
 meaning in full force and yet the line or course may incline either way to any 
 distance, so long as it tends toward the north and east; and in connection 
 with these facts the words retain a definite and unmistakable meaning. The 
 course will maintain its characteristic as northerly or easterly or both. 10 If 
 there be. no object mentioned to incline the course toward "east" or 
 
 1 Hitchcock v. So. I. & T. Co. 6 Woodbury v. Evans (N. C.), 30 S. E- 
 (Tenn.), 38 S. W. Rep. 588. Rep. 2 [1898]. 
 
 2 Bennett v. Latham (Tex.), 45 S. W; 'Smith v. Newell (U. S.), 86 Fed. Rep. 
 Rep. 934 [1898]. 5 6 [1898]. 
 
 Van Amburgh v. Hitt (Mo. Sup.), 22 8 Rathbun v. Geer, 86 Conn. 421. 
 
 S. W. Rep. 636. But see Snyderr/. Morris 9 Garvin v. Dean, 115 Mass. 577- How- 
 
 (Tex.) 38 S. W. Rep. 219. ard v. College, 116 Mass. 117. 
 
 Guillen v. Belts (Del.), 39 Atl. Rep. 10 Foster v. Foss, 77 Me. 280; Irwin v. 
 
 595 [1897]- Towne, 42 Cal. 329; Abbey v. McPher- 
 
 Worsham v. Morgan (Tex.), 28 S. W. son (Kan.), 41 Pac. Rep. 978. 
 Rep. 918. 
 
604. OPERATIONS PRELIMINARY TO CONSTRUCTION. 418 
 
 " west, " the word " northerly " is considered to mean due north. 1 " North " 
 and "northward" have been held to mean due north. 2 "Northwardly," 
 " westwardly," etc., in a description are held to mean due north, due west, 
 etc. 3 
 
 In naming one of the courses of a boundary of a county in the state of 
 Ohio the words " thence north to the Great Miami " were held to refer to the 
 originally surveyed section-line, although not running a true course. 4 The 
 words " due west," " due east," etc., are held to mean exactly* west, exactly 
 east, etc., and to apply with equal propriety to those points whether the 
 magnetic or the sidereal meridian is referred to. 5 
 
 It frequently happens in descriptions that mistakes are made and the word 
 " north " is used for the word " south." In such case the deed is not void 
 for uncertainty if the intention of the parties is plain, as where the description 
 reads, * ' south to the place of beginning, ' ' and it is necessary to go north to 
 reach the place of beginning. 6 
 
 Where boundaries called for as the north, south, east, and west bounda- 
 ries are taken as the northeast, southeast, etc., boundaries, and describe a 
 tract of five times the area the deed calls for, such deed will not be held void 
 for uncertainty as a question of law, but the identity of the land is a mixed 
 question of law and fact for the jury. 7 
 
 604. Meridians, True or Magnetic. Whether the line is to be run by the 
 magnetic or the sidereal meridian must be determined by the circumstances 
 of each case. In some states it may be determined by the statute or fprmer 
 decisions of the courts. In New Hampshire it was held to be part of the 
 common law that when the meridian was not specially designated as the 
 sidereal meridian, the courses in deeds of private land are to be run according 
 to the magnetic meridian [of the year when the original survey was made]. 8 
 
 When the surveys of the state have been made by different meridians, some 
 by the true and others by the magnetic meridian, a call "due west," made 
 in a contract for the subdivision of the original section, has not a determinate 
 meaning even by judicial determination. If the original survey were made 
 by the magnetic meridian and subdivisions have been made, there arises a 
 strong and conclusive presumption that such subdivision-lines were intended 
 to be run by the magnetic meridian; and even when the original survey was 
 made according to the true meridian in a subdivision, unless so made, in 
 reference to the original courses, as to manifest an intention to be controlled 
 
 1 Brandt v. Ogden (N. Y.), I Johns. 4 Commrs. of Warren Co. v. Commrs. 
 I5 6 of Butler Co., 4 Ohio N. P. 349 [1897]. 
 
 2 Jackson v. Reeves, 3 N. Y. 293; Cur- 5 Wells v. Co. , 4 7 N. H. 235 [1866]. 
 rler v. Nelson (CaL), 31 Pac. Rep. 531; 6 Marsh v. Ne-Ha-Sa-Ne Park Assn. 
 Reed v. Knight, 87 Me. 181. But see (Sup.), 42 N. Y. Supp. 996. See Dunlop 
 Weare v. Weare 59 N. H. 293. v. Kennedy (CaL), 34 Pac. Rep. 92. 
 
 8 Seaman v. Hogeboom (N. Y.), 21 7 Dwyre v. Speer (Tex.), 27 S. W. Rep. 
 
 Barb. 298, 404; Craig v. Hawkins (Ky.), 585. 
 
 I Bibb. 53; Pratt */. Woodward, 32 Cal. 8 Wells v. Co., 47 N. H. 235 [1866], 
 
 227. and cases cited. 
 
4 1 9 CONFLICT OF CALLS IN DESCRIPTION. 605. 
 
 by the original courses, they would in general be run by the magnetic 
 meridian, as that is the general usage in running lines. The question is in 
 general a mixed one of law and fact to be determined by the terms of the calls 
 and the extraneous circumstances attending each case. 1 
 
 605. Measurements to and from Objects Described as Monuments, In 
 general, when premises are bounded on or by a monument, whether a stream, 
 roadway, ditch, wall, fence, rock, or stake, the description is construed as 
 meaning to the middle or center of that monument, 2 and therefore it would 
 seem that, in general, distances should be measured to the center or middle 
 of such boundaries. This, however, is not the universal practice, and little 
 definite law can be cited to govern the cases. 
 
 The acknowledged practice of surveyors, the local custom and usage of 
 the place, the particular circumstances surrounding each survey, the applica- 
 tion and the adjustment of the description of the land by courses and distances 
 to the property, may each and all have weight in determining how to apply 
 such distances to the monuments described. 
 
 By the law of property, ownership is that which gives one the exclusive 
 and free enjoyment of his possessions. Therefore if a man would erect a wall 
 or fence, or dig a ditch, or set a hedge, he must confine his operations to his 
 own land or possessions. He cannot encumber his neighbor's land with his 
 fence any more than with his building. If, however, he has built a fence or 
 dug a ditch upon his own land and then sells or grants away a part of it, 
 bounding it on or by the fence or ditch without reservation, the center line 
 will be the boundary. The actual point measured to, as recorded or proved, 
 will govern. 
 
 In some localities it has become the custom for property owners to set the 
 center of the posts of a fence upon the dividing-line, to which place, therefore, 
 surveyors should conform in their measurements. In others the posts are 
 kept wholly upon the soil of the builder, and the face of the rails to which the 
 pickets or boards are nailed is considered the line; or if the boards are nailed 
 directly to the posts, then the face of the posts to which the boards are fastened 
 is taken as the line. In cities it is the usual custom for the one who builds 
 and maintains the fence to keep the posts upon his .own land. This is 
 because every available inch or fraction of land is valuable and may be utilized 
 for building. Fences erected upon a street-line are generally kept entirely 
 within the lot. The extreme outside face of the wall or fence is taken as the 
 line. This is because cities are very particular to prevent any encroachment 
 upon the sidewalks, and parties who build out over or upon them may be 
 required to take down and rebuild if they project their fences or buildings 
 into the street. 
 
 1 McKinney v. McKinney, 8 Ohio St. Fomby (Ala.), 22 So. Rep. 910 [1897]. 
 423 [1858]; Wells v. Co.., 47 N. H. 235 2 Starr v. Child, 20 Wend. 149, ana 
 
 [1866], and many cases cited; Taylor v. cases cited. 
 
606. OPERATIONS PRELIMINARY TO CONSTRUCTION. 42O 
 
 In walls and blocks in cities, the water-table or underpinning courses 
 are generally taken as the limit of the street-line. This will be a matter of 
 custom or ordinance in different cities, and may be wholly at variance. A 
 newcomer in a community should inform himself as to the usages in vogue 
 at the city engineer's office or from the established engineers of the place. 
 
 In the country, in farm surveying, where land is cheaper, the fences are 
 frequently placed upon the line, so that its middle line is the boundary-line, 
 and the fence is equally upon both property owners. 
 
 The general rule as to monuments undoubtedly is that the center of such 
 monument, stake, stone, tree, rock, etc., is intended when lands are so de- 
 fined. Even when highways and streams are referred to in deeds as the limits 
 of the grant or conveyance, the middle is presumed to be the limit unless the 
 contrary be clearly expressed. The real boundary, then, is the belt of land 
 extending along the highway or stream between the margin and the center. 1 
 
 Measurements from structures when designated in a description must be 
 made in accordance with the intention of the parties, if that can be ascer- 
 tained. Circumstances and conditions attending each case will lend their 
 weight in determining that intention, as will the construction of the same 
 language adopted in other and earlier cases decided. 
 
 A line described as "four feet north from the northerly side " of a build- 
 ing was held to mean four feet from the edge of the eaves, 2 but "eight feet 
 four inches from the south side of a building was held to be measured from 
 the corner board and not from the outer edge of the eaves. 3 
 
 Where a boundary-line was described as "commencing twelve and one- 
 half feet east of [the grantee's] house," it was measured from the foundation 
 of the house. 4 
 
 Where, in an action to determine the true boundary-line between two city 
 lots which are entirely covered by buildings erected many years ago, the court 
 adopts a crack or seam between the buildings as the true line, the finding will 
 not be disturbed. 5 
 
 606. Measurements " to or along " a Road, Whether measurements to a 
 road or way are to the center or to the nearer side is a question that is not 
 settled, but depends upon the particular circumstances of each case. 
 Numerous cases have come before the courts, but no definite or satisfactory 
 rule has yet been established. It was intimated in a recent Massachusetts 
 case that where the boundary is a stream or way there was a reasonable pre- 
 sumption that measurements were made from the bank of the stream or from 
 the side of the way, and that such a rule of presumption was well established 
 
 1 Redfield, J., in Buck v. Squires, 22 Co., 51 Me. 413 [1864]. And see Wise v. 
 Vt. 484. Burton (Cal.), 14 Pac. Rep. 678 [1887]. 
 
 2 Millett v. Fowle, 8 Cush. 150 [1851]; * Kendall v. Green (N. H.), 42 All. 
 Dickinson v. Amherst Water Co., 139 Rep. 178 [1894]. 
 
 Mass. 212. 5 Greer v. Powell (Iowa), 56 N. W. Rep. 
 
 3 Center St. Church v. Machias Hotel 440. 
 
421 CONFLICT OF CALLS IN DESCRIPTION. 6o/ 
 
 in measuring to a stream or way, but that there was little or no authority 
 when the measurement was from the stream or way. The presumption is 
 founded upon the common method and custom of measurement among sur- 
 veyors, and it is believed to be correct. It may be controlled by evidence 
 that the parties at the time established monuments, and such extrinsic 
 evidence is admissible to aid in the construction of the deed. 1 
 
 Where a highway is mentioned as the boundary-line and a piece of land is 
 to be measured along said highway, there is no presumption that the chain 
 was carried along the center of the highway in making the original measure- 
 ments. 2 
 
 A description of premises as extending west 72 feet from the northeast 
 corner of the lot fixes the beginning point not at the center of the street on 
 which the lot abuts, but at that portion of the platted territory set apart for 
 individual and separate use, even though the plat in giving the sizes of the 
 lots designates the measures to the center of the street. 3 
 
 Land-line and boundary have been held to be synonymous and interchange- 
 able terms. 4 
 
 607. Measurements to Adjoining Tracts or Structures. If land be 
 bounded as extending to other land of the grantor or along another strip of 
 land, ever so narrow, owned by the grantor, the margin of the land will be 
 taken as the boundary. There is no reason to suppose 'that a party while 
 describing one piece of land intended to convey half of another piece, as 
 appurtenant to it. Land cannot be conveyed as appurtenant to other land; 
 if conveyed at all, it must be as parcel of the land conveyed. Appurtenances 
 are incorporeal. 5 
 
 Chief Justice Gray has expressed it thus : ' ' When land is described as 
 bounded by other land, or by a building or structure the name of which, 
 according to its legal and ordinary meaning, includes the title in the land of 
 which it has been made a part, as a house, a mill, a wharf, or the like, the 
 side of the land or structure referred to as a boundary is the limit of the 
 grant. But when the boundary-line is simply an object, whether natural or 
 artificial, the name of which is used in the ordinary speech as defining a 
 boundary, and not as describing a title in fee, and which does not in its 
 description or nature include the earth as far down as the grantor owns, and 
 yet which has width, as in the case of a way, a river, a ditch or wall, a fence, 
 a tree, or a stake and stones, then the center of the thing so running over or 
 standing on the land is the boundary of the lot granted. " 6 
 
 1 Dodd v. Witt, 139 Mass. 63; Newhall Mass. 212. 
 
 v. Ireson, 8 Cush. 595; Motley v, Sar- 2 Commrs. v. Morgan (Kan.), 52 Pac. 
 
 gent, 119 Mass. 231; Hoar v. Goulding, Rep. 896 [1898]. 
 
 116 Mass. 132; Blaney v. Rice, 20 Pick. 'Montgomery v. Hinds (Ind. Sup.), 33 
 
 62; Stewart v. Patrick, 68 N. Y. 450; N. E. Rep. noo. 
 
 Hamm v. San Francisco, 17 Fed. Rep. * Henderson v. Dennis, 177 111. 547. 
 
 119 See Walker v. Boynton, 120 Mass. 5 Buck v. Squires, 22 Vt. 484. 
 
 349; Dunham v. Gannett, 124 Mass. 151; * Boston v. Richardson, 13 Allen 146. 
 Dickinson v. Amherst Water Co., 139 
 
CHAPTER XXXI. 
 
 DETERMINATION AND PROOF OF BOUNDARIES. 
 
 611. Determination of Boundaries is Usually for Jury. When property 
 owners appeal to the decision of a court to settle their disputes and determine 
 the boundaries of their land, the court will first inquire as to whether the deed 
 or contract is complete and if the intention of the grantor is clear and con- 
 clusive. If it be so, the judge has but to interpret the language of the deed 
 and render his judgment accordingly. 
 
 If there be any doubt as to what the grantor intended to convey, or if 
 monuments and lines cannot be established, or disputes arise as to the location 
 of those lines or lot corners, then it becomes a question for a jury. In such 
 cases it is for the jury to determine which is the correct line, or what was the 
 evident intention of the grantor. When the question is one of fact, the court 
 will not decide it; for, however well satisfied the judge may be of the truth- 
 fulness and reliability of a surveyor's or any other witness's evidence, if it is 
 disputed and disputable it cannot be taken* from the jury. 1 Though it is the 
 duty of the court to construe written instruments, yet it is the province of 
 the jury to determine the boundaries of land in controversy from all the 
 evidence, including the description in the deeds. 2 
 
 The question as to which of two boundary-lines fixed by different surveys 
 is the true line is for the jury. 3 If the description is capable of interpretation 
 in two senses, one broader than the other, it may be interpreted by the jury 
 from a survey carefully made on the ground by lines and monuments, from 
 the specification of the quantity granted, and from a practical interpretation, 
 by occupancy and otherwise, by the interested parties. In settling such a 
 case the quantity of land specified, the boundaries named, and the survey as 
 made are all to be considered, and by their united light the proper conclu- 
 sion is to be reached. 4 
 
 1 Chief Justice Cooley in Herpel v. Morris (Pa. Sup.), 33 Atl. Rep. 275- 
 
 Malone, 56 Mich. 199 [1885]; Steigleder 2 Cochran v. Smith (Sup.), 26 N. Y. 
 
 v. Marshall (Pa. Sup.), 28 Atl. Rep. 240; Supp. 103. 
 
 Dwyre v. Speer (Tex.), 27 S. W. Rep. 3 Macauley v. Cunningham 60 111. 
 
 585; Humphrey v. Cooper, 183 Pa. St. App. 28; Ponet v. Wills (Cal.), 48 Pac. 
 
 432 [1898]; Parker v. Salmons (Ga.), 28 Rep. 483. . 
 
 S. E. Rep. 681; Williams v. Hughes (N. *Cavazos v. Trevmo, 6 Wall. 773 
 
 C.), 32 s - E - Re P- 3 2 5 [1899]; Wilson v. [1867]. 
 
 422 
 
423 DETERMINATION AND PROOF OF BOUNDARIES. 6 1 2. 
 
 The true location of disputed lines is a question of fact for a jury where 
 the testimony of the original surveyor and that of a subsequent one are in 
 conflict, 1 and the location of such lines is not a question for a surveyor's 
 opinion. 2 
 
 612. Court should Leave Jury Unbiased to Determine Boundary. The 
 determination of the boundaries being a question for the jury, it is wrong for 
 the court when a case rests upon the testimony of surveyors, though the trees 
 originally marked or some of them are on the ground and have been examined 
 by such jury, to charge that, owing to the length of time since the survey was 
 made, "it is not to be expected that the monuments then made upon the 
 ground are now to be found," because it tends to discredit the defendant's 
 testimony. 3 Thus, in a controversy as to which of two trees marked the 
 corner of a lot, it was held that it was for the jury to decide which tree was 
 the corner, and that it was error for the judge to charge the jury that it was 
 one or the other tree. 4 When, however, no testimony has been offered locat- 
 ing the monuments referred to in a deed, the judge may say to the jury that 
 " by the record title the plaintiff has not fixed the boundary of the line . . . 
 the line in dispute." 5 
 
 Where land was conveyed as bounded on a certain street and running 
 back a certain distance, it was held a question for the jury to determine 
 whether the grantor referred to the street-line which was then apparent or the 
 line of the highway as laid out and recorded. 6 It was held wrong to instruct 
 a jury that they must satisfy themselves as to one disputed point, and that 
 only in case that they could not satisfy themselves as to that point could they 
 resort to any other point in the description. The jury should be left free to 
 consider all the calls of the description, and to locate the disputed lines by all 
 the evidence before them. 7 
 
 When an ancient deed described land as " beginning on the sound at a 
 ditch" which had become obliterated, it was held to be a question for the 
 jury, aided by all the evidence of the facts; and this was so even though the 
 starting-point had been settled as the corner of adjacent tracts, and there was 
 still a ditch which if continued would meet the point in controversy. 8 The 
 question being one of fact, it lies entirely within the province of the jury. If 
 the judge make an equal division between claimants of a quarter-section which 
 does not contain the full acreage, such division will not hold even though 
 
 1 Herpel v. Malone, 56 Mich. 199 [1885]. 438 [1898]. And see Adams v. Half 
 
 2 Stewart v. Carleton, 31 Mich. 270; (Tex.), 24 S. W. Rep. 334. 
 
 Cronin v. Gore, 38 Mich. 381; Wilson -v. 5 Chase v. Martin (Me.), 15 Atl. Rep. 
 
 Morris (Pa. Sup.), 33 Atl. Rep. 275. 68 [1888]. 
 
 'Cross v. Tyrone M. & N. Co. (Pa.), 6 Brown v. Fishel (Sup.), 31 N. Y. 
 
 15 Atl. Rep. 643 [1888]. Supp. 361. 
 
 4 Berry v. Watson, 15 Atl. Rep. 618 7 Blum v. Bowman (C. C. A.), 66 Fed. 
 
 [1888]; Davidson v. Shuler's Heirs (N. Rep. 883. 
 
 C.), 26 S. E. Rep. 340; Oliver v. Brown 8 Roberts v. Preston (N. C.), 10 S. E. 
 
 (Me.), 15 Atl. Rep. 599 [1888]; Grief v. Rep. 983. 
 Norfolk & W. R. Co. (Va.), 30 S. E. Rep. 
 
6l2. OPERATIONS PRELIMINARY TO CONSTRUCTION. 424 
 
 the tract has never been divided by a government surveyor, and though expert 
 .surveyors testified that such was the proper method of dividing it. It was 
 maintained that the question as to location of the dividing-line was for the 
 jury. 1 
 
 If identity is the only question to be decided by the jury, and if it is 
 .satisfied as to the land which was granted, no further testimony should be 
 required. 2 
 
 The judge should not only leave it to the jury but he should leave it to 
 their unprejudiced decision. If the instructions by the court to the jury are 
 calculated to weaken the effect of either party's testimony or to mislead the 
 jury, it will be an error which will give a new trial. Thus a remark by a 
 judge, in referring to testimony of a surveyor, that " It would be a marvel in 
 surveying if they found right at the end of the distance called for in the 
 original survey the stump of the identical tree," was held not only to be 
 inaccurate as to general proposition, but was calculated to unduly weaken the 
 effect of the surveyor's evidence, and was error. 3 
 
 However clearly, conclusively, and absolutely a surveyor's evidence may 
 determine the boundaries of an estate, the question will not be taken from 
 the jury unless the court can determine the parties, the tract, and its 
 boundaries from the instrument itself. If they be disputed, the court will 
 submit the determination of these questions to a jury. In a recent case a 
 surveyor testified that two corners were found upon the ground, and that the 
 line should be half-way between; that he ran a line dividing the distances 
 equally, and that the distances checked; that it followed a line of blazed trees 
 which were original line-trees, and that at about the right distance were the 
 remains of a pine stump, the bearing-tree. Yet, with this most satisfactory 
 survey, the question was given to the jury. 4 It will be seen that facts and 
 conditions which might leave no doubt in the minds of surveyors will not be 
 conclusive with a judge. However well satisfied he may be of the true loca- 
 tion, he must leave it to the opinions of jurymen who may or may not have 
 more than ordinary intelligence, 5 
 
 The legal proposition that what constitutes a boundary in a deed is a fact 
 for the jury is too well founded to be controverted, and the boundary may be 
 proved by any kind of evidence which is competent to prove any fact. 6 
 
 From what has been said it cannot but be evident that success in disputes 
 
 1 McKey v. Hyde Park, 10 Sup. Ct. Rep. 316; Reast v. Donald (Tex. Sup.). 
 
 Rep. 512. 19 S. W. Rep. 795. 
 
 2 Blake v. Doherty, 5 Wheat. 359. And 5 Note. A plea for special juries on 
 see also Raymond v. Coffey, 5 Oreg. 132 special subjects. A jury of twelve ordi- 
 [1873]; Brown & Rockwell v. Willey, 42 nary men is no more competent to judge 
 Pa. St. 205; Waterman v. Johnson, 13 technical questions of surveying than of 
 Pick. 261. medicine or of law. 
 
 3 bughman v. Byers(Pa.), 12 Atl. Rep. 6 Brown & Rockwell v. Willey, 42 Pa. 
 357 [1888]; Woodbury v. Venia (Mich.), St. 205; Opdyke v. Stephens, 4 Butcher 
 72 N. W. Rep. 189 [1897]. 89. 
 
 - Higgins v. Ragsdale (Cal.), 23 Pac. 
 
425 DETERMINATION AND PROOF OF BOUNDARIES. 614. 
 
 of boundaries depends chiefly upon knowing what to present and how to 
 present the case strongly and plainly before the jury. A. case will be best 
 handled by an attorney well versed in the law of boundaries and with a com- 
 prehensive knowledge of surveying methods and practical experience in the 
 field, since so much depends upon the practical application of the description 
 in the deed to the subject-matter, the estate. 
 
 613. Maps and Plans Referred to in a Deed Become a Part Thereof.* 
 When a deed refers to another deed, map, survey, or record of judgment, the 
 instrument referred to becomes a part of the deed, and both should be con- 
 strued together. 1 When a plat is referred to as descriptive of the natural 
 boundaries of land conveyed, it must be considered as giving the true descrip- 
 tion as much as if it were embodied in the deed. 2 When a deed, after giving 
 the description of the premises conveyed, states that all the premises are 
 situated in a certain section, township, etc., " according to the map drawn 
 on back hereof, ' ' such a plat becomes a part of the deed and a descriptive 
 part of the subject of the conveyance. 3 A reference to a recorded plat for 
 description makes the plat a part of the deed, so far as it affects the location 
 of the lot with respect to surrounding lots. 4 
 
 The plat referred to cannot be presumed to be inaccurate, and it may be 
 regarded as more fully representing the intention of the parties than the lan- 
 guage of the deed so far as fixed monuments are concerned. Where such 
 plat shows a single line for the stream as a boundary, it will be taken as 
 representing the y center of the stream, and not the banks, as it would if 
 another line were drawn for the margin. 5 If the map does not contain the 
 number by which the lot was designated and does not furnish sufficient data 
 for locating the lot, parol evidence may be admitted to identify the lot on the 
 map. 6 
 
 614. Description Complete, and General Reference to Maps and Deeds. 
 If the description in the deed be clear and complete and there be no 
 apparent ambiguity on the face of it, the fact that there is added a statement 
 that land conveyed is the same described in a certain recorded agreement 
 between the grantor and another party will not justify a reference to such 
 agreement to show that a less amount of land was conveyed than was 
 
 1 Heffeman v. Otsego W. P. Co. (Mich.), 2 Slauson v. Goodrich T. Co., 75 N. W. 
 
 43 N.W. Rep. 1096; Blum v. Rice (Tex.), Rep. 574; Northern Pac. R. Co. v. Scott, 
 
 32 S W Rep. 1056; St. Louis v. Mo. Pac. etc., Co. (Minn.), 75 N. W. Rep. 737. 
 
 R. Co. (Mo.), 21 S. W. Rep. 202; McCul- 'Piper v. Connolly, 108 111. 646 [1884]. 
 
 lough v. Olds (Cal.)i 41 Pac. Rep. 420; * Smith v. Young, 160 111. 163. 
 
 Green v. Doane, 15 Cal. 304; Davis v. 6 Piper v. Connolly, 108 111. 646 [1884]. 
 
 Rainsford, 17 Mass. 207; Glover v. See Jefferies v. East Omaha Co., 10 Sup. 
 
 Shields, 32 Barb. 374; Birmingham v. Ct. Rep. 518; O'Brien v. Flynn (Mass.), 
 
 Anderson, 48 Pa. St. 253; Noonan v. Lee, 33 N. E. Rep. 500. 
 
 2 Black 504; Wait's Engin. & Arch. Redd v. Mum- (Cal.), 30 Pac. Rep. 
 
 Jurisp., Sees. 213-233. 132. 
 
 *See Sees. 598, 599, supra. 
 
615. OPERATIONS PRELIMINARY TO CONSTRUCTION. 426 
 
 described in the deed ; l and where the description by metes and bounds is 
 followed by the words "or the one-fourth part of all the land that my father 
 M. died seized and possessed of," the clause will not control the description 
 by metes and bounds so as to include other land willed by the deceased. 2 * 
 
 It is equally well settled that nothing will pass by a deed except what is 
 described in it, whatever the intention of the parties may have been. The 
 r.ule in such cases is that " When a deed contains an accurate description of 
 permanent boundaries capable of being ascertained, a general reference, in 
 addition, to the premises as in the possession of the grantor or grantee will 
 not pass title to land outside of the boundaries given." But little weight 
 can be ascribed to a statement of the quantity of land in the deed, as that is 
 followed by the words " be the same more or less," and according to settled 
 rules cannot be held to affect the quantity of land included within specified 
 boundaries, when those are clearly and certainly ascertainable. 3 f 
 
 615. Maps and Plans Referred to are Evidence of Boundaries, A map, 
 plat, or document referred to in a deed for the description of the boundary 
 and land conveyed is admissible in evidence of such boundaries. 4 A sketch 
 or a plat not marked with courses and distances, made by a non-expert 
 grantor and annexed to his deed, is admissible with the deed as an illustra- 
 tion. 5 A prior bond for a conveyance which has been made in exchange for 
 a deed may be referred to, in construing the deed, to show the intention of 
 the parties as respects the sale, in connection with other circumstances. 6 
 
 Where plats and maps have been made of property, as where an estate has 
 been divided 'up into building-lots, and conveyances have been made by the 
 lot-number and a mere reference to the map, the grantee takes only so much 
 as is shown on the plat. 7 
 
 616. Copies of Maps and Records as Evidence. To make copies of maps 
 and records evidence in court they should be accompanied by the certificate 
 of the public officer to whose custody such maps and records have been legally 
 consigned. A true copy of such documents must be made and furnished. 
 A certificate of a public officer that certain facts appear of record in his office, 8 
 or a certificate by the surveyor that "the courses and distances are correctly 
 laid down from official surveys made by me," without more, will not be 
 received. 9 Certificates of surveyors attached to the duly certified copy of a 
 
 1 Jones v. Webster W. Co., 85 Me. 210; * Taylor v. McConigle (Cal.), 52 Pac. 
 
 McCullough v. Olds (Cal.), 41 Pac. Rep. Rep. 159. 
 
 420. , 18 S. E. Rep. 680. 
 
 2 Midgett v. Twiford (N. C.), 26 S. E. 6 Piper v. Conolly, 108 111. 646. 
 
 Rep. 626. 'O'Brien v. Flynn (Mass.), 33 N. E. 
 
 3 Jackson v. McConnell, 19 Wend. 174; Rep. 500. 
 
 Jackson v. Moore, 6 Conn. 706; Thayer 8 Francis v. Newark (N. J.), 33 Atl. Rep. 
 
 v. Finton, 108 N. Y. 394; Jones v. Smith, 853; Goodwin v. McCabe, 75 Cal. 584. 
 
 73 N. Y. 205. 9 Major v. Watson, 73 Mo. 661 [1881], 
 
 * See Sec. 548, supra. \ See Sees. 588-597, supra. 
 
4-7 DETERMINATION AND PROOF OF BOUNDARIES. 619. 
 
 map from the archives of the land office are not admissible to prove disputed 
 facts. 1 
 
 A sketch of the survey under which a certificate was issued, taken from a 
 map of the county wherein the land was situated, together with the certificate 
 of the commissioners reciting that the sketch was a true copy from such map, 
 and that the map was made by a certain person, giving the date, and that it 
 had been in the land office in use as the official map of said county between 
 certain dates, is admissible. 2 Where a registered copy of a deed is duly 
 admitted in evidence, the registry is evidence that the deed was executed. 3 
 
 Parol evidence of the contents of a deed is not admissible when the deed 
 has been lost, unless it appear that inquiry for it was made of a person to 
 whom it was last sent, and that it is not in the possession of the party claim- 
 ing under it. 4 
 
 617. Admission of Field-notes as Evidence. The field-notes of a 
 deceased surveyor, showing the boundaries of an old survey which it is proved 
 are identical with some of the boundaries of the tract in dispute, are admissi- 
 ble as evidence to show the original location of such boundaries. 5 When a 
 survey is made without legal authority, copies of the field-notes are not 
 admissible as evidence even though certified from the General Land Office. 6 
 
 When the provisions of an act require deputy surveyors to enter surveys 
 in a survey-book, which requirement is directory only, the neglect of the 
 surveyor to so enter a survey will not deprive an owner of his title. 7 
 
 618. Government Maps as Evidence. Maps and field-notes made by 
 government surveyors (which term includes county surveyors) in obedience 
 to general or special statute laws, and filed in the proper public offices desig- 
 nated, are good evidence of the true shape and location of the land. 8 
 
 Where statutory law requires a plat of a survey of lands applied for, with 
 the field-notes thereof, to be filed with the application for purchase, an appli- 
 cation with the plat, but without the field-notes, is insufficient. 9 
 
 619. Testimony of Old Inhabitants as to Location of Boundary Lines.* 
 The determination of boundaries of land is frequently a question not so 
 much of surveying as it is of proof by witnesses, whether by surveyors or by 
 former owners, or by early inhabitants of the neighborhood. Often a case 
 will go to the jury on the evidence of such witnesses who have s\vorn to the 
 existence of monuments or marks upon the ground, which if established by 
 
 1 Keuchler v. Wilson (Tex.), 18 S. W. 262. See Stiles v. Estabrooks (Vt.), 29 
 Rep. 317. Atl. Rep. 961. 
 
 2 Rogers v. Mexia (Tex.), 36 S. W. Rep. 6 Von Rosenberg v. Haynes (Tex.), 20 
 825. S. W. Rep. 143. 
 
 3 Hathaway v. Spooner, 9 Pick. 23 7 Wilson v. Homer, 59 Pa. St. 155. 
 [1829]. 8 Redmond v. Mullenax (N. C), 18 S. 
 
 4 Trindle v. Edwards (Tex.), 19 S. W. E. Rep 708. 
 
 Rep. 772. 9 State v. Forrest (Wash.). 43 Pac. Rep. 
 
 5 Stanus v. Smith (Tex.), 30 S. W. Rep. 51. 
 
 * See Sec. 630, infra. 
 
620. OPERATIONS PRELIMINARY TO CONSTRUCTION. 428 
 
 such testimony will determine the boundaries of the land independent of any 
 efforts made by surveyors, or of conclusions arrived at by them. If witnesses 
 come into court and swear that in a certain place a monument existed or a 
 certain marked tree was cut down, and that it was regarded by the community 
 as a well-established corner or monument, it may be accepted by the jury and 
 court as the true line no matter how many surveyors testify to the contrary. 1 
 
 620, Traditional Proof of Boundaries. At common law traditional 
 proof was received only when the boundaries in question were public or 
 quasi- public, or when the private line was coincident or dependent on such 
 public boundary or monument. In this country the rule has not been strictly 
 adhered to, and declarations in regard to private boundaries by persons since 
 deceased, who shall appear to have been in a situation to possess the informa- 
 tion and who were not interested, have been admitted in evidence, as, for 
 example, the declarations of the surveyor who originally ran out the lines, of 
 of some members of his party. 2 Some jurisdictions require that the declarant 
 shall have been in possession as owner at the time, and shall have been 
 engaged in pointing out the boundary in question. 3 
 
 This relaxation of the rule and its application to private boundaries is 
 doubtless due to the fact that a single surveyed line is common to a number 
 of estates and thus becomes a matter of general public interest and a quasi- 
 public boundary. 4 Declarations of a deceased person as to the boundaries of 
 his land, though not made on the land, have been admitted as evidence 
 between other parties where it is shown that the deceased had means of knowl- 
 edge of such boundaries and no apparent interest to misrepresent. Such 
 declarations are generally admissible to prove public boundaries and public 
 ways. 5 Declarations of a disinherited person since deceased, made before any 
 controversy has arisen in reference to private boundaries, are admissible as 
 evidence; and this is so even though the declarant was a slave at the time, 
 since, if alive, he would now be competent to testify. 6 The declarations of 
 an owner since deceased, when leaving a strip of land open, explaining his 
 intentions and reasons for so doing, are properly admitted in evidence in 
 behalf of a person claiming under such prior owner. 7 Declarations by 
 persons who have private interests cannot be introduced even though they 
 pertain to matters of general interest. 8 The statements must have been made 
 by persons now dead, and in some states they are confined to ancient bound- 
 aries, and to declarations of deceased owners, made while in the act of pointing 
 out their own boundaries. In such a case the declaration need not be against 
 
 1 James v. Lewis, 50 N. Y. Supp. 230 886. 
 
 [1898]; Van Dusen v. Shiveley (Oreg.), 4 Best's (Chamb.) Evidence 474. 
 
 39 Pac. Rep. 76; Woodbury v. Venia 6 Lawrence v. Tenant (N. H.), 15 All, 
 
 (Mich.\ 72 N. W. Rep. 189 [1897]; Col- Rep. 543 [1888]. 
 lins v. Sutton (Va.), 26 S. E. Rep. 415. 6 Whitehurst v. Pettipher, 87 N. C. 179 
 
 3 Sexton v. Hollis, 26 S. C. 236; Elliott [1882], and cases cited, 
 v. Pearl, 10 Pet. 412. 7 Quinn v. Egleston. 108 111. 248 [1883]. 
 
 8 Curtis v. Aronson (N. J.), 7 Atl. Rep. 8 Best's (Chamb.) Evidence 474. 
 
429 DETERMINATION AND PROOF OF BOUNDARIES. % 62O. 
 
 interest or in disparagement of title. They are received when nothing appears 
 to show an interest to deceive or misrepresent. 1 If declarations have beea 
 made against one's own proprietary or pecuniary interests, they are admissible 
 in some courts if the declarant be dead; but disability, even though equiv- 
 alent to death, does not render such declarations admissible: he must be 
 deceased. 2 
 
 In a recent South Carolina case the opinion was expressed that three 
 things were necessary to admit hearsay reports and declarations of them: 
 (i) that the boundaries must have been ancient; (2) that the declarant must 
 be dead; (3) that he must have been in a position to know the boundary, as 
 the surveyor or one of the chainmen who originally ran the lines. This is an 
 exception to the general rule which excludes " hearsay " evidence, and it has- 
 been extended so as to render such testimony admissible in cases of boundaries 
 between private estates, and to admit the declarations of deceased persons 
 who shall appear to have been in a situation to possess the information, and 
 who were not interested, as, for instance, the declarations of surveyors, chain- 
 carriers, etc. The courts, however, are against extending such exceptions to 
 a well-settled and highly salutary rule of evidence any further. 3 
 
 A subsequent survey and location of a dividing-line will not suffice. Thi& 
 would allow a perversion of the rule against hearsay evidence, and permit any 
 one at any time, without any special information on the subject, and without 
 any responsibility, and in the absence of interested parties, to run a supposed 
 dividing-line at his pleasure and thus make admissible testimony which other- 
 wise would, and should, be excluded. The information of the declarant must 
 be from his own observation and experience and not what has been imparted 
 to him by others. 4 A witness whose only knowledge is derived from the fact 
 that an owner of adjoining land ran the dividing-line in, the presence of the 
 witness, it not being shown that the adjoining owner was a surveyor and who 
 originally located it, nor that he was dead, is incompetent to testify to the 
 location of a boundary-line. 5 Declarations, at the time of making survey, by 
 surveyors who are since deceased have been admitted a spart of the res- 
 gestce.* A witness no doubt has the .right to testify at least as to what he saw, 
 and such testimony is primary and in no sense secondary or "hearsay";, 
 but when a witness seems to have acquired a very full knowledge which must 
 necessarily have been derived from information imparted, as well as from 
 observation, how shall the court distinguish as to how much of the testimony 
 was derived from one source, and how much from the other ? 7 
 
 1 Curtis v. Aronson (N. ].), 7 Atl. Rep. i Greenleaf's Evidence, 145. 
 
 886 [1887]. 6 Alexander v. Gossett (S. C.), Sup. 
 
 2 Best's (Chamb.) Evidence 474. Ct., Oct. 12, 1888. 
 
 8 Mima Queen v. Hepburn, 7 Cranch 6 Barclay v. Howell's Lessee, 6 Pet. 
 
 290. And see 39 Alb. Law Jour. 134 498, referred to by McLean, J., in icx 
 
 [1889]; Smith v. Cornett (Ky.), 38 S. W. Pet. 714; Birmingham v. Anderson, 40 
 
 Rep. 689. Pa. St. 506. 
 
 4 39 Albany Law Journal 134 [1889]. See , 7 Alexander v. Gossett (S. C.), 39 Alb. 
 
 Blythe v. Sutherland, 3 McCord 259, and L. Jour. 134 [1888]. 
 
621. OPERATIONS PRELIMINARY TO CONSTRUCTION. 43<D 
 
 Where the location of a private boundary depends upon showing a 
 section-line, the latter may be shown ,by proof of general reputation. 1 A 
 witness having knowledge may testify whether the lines described in a deed, 
 when applied to the face of the earth, surround the lot. 2 
 
 On an issue of the location of a survey whose boundaries depended on the 
 location of other surveys, opinions of surveyors as to how they would locate 
 the latter, and that if such surveys were located in a certain manner it would 
 be contrary to the field-notes for the same, are inadmissible, since such tes- 
 timony involves a question of law. 3 
 
 Where several witnesses testified that the patentee agreed that the true divi- 
 sion-line should be "the top or' ridge of the mountain between Lot and 
 Second creeks/' and the deeds only called " to the top of the ridge, thence 
 running with the dividing-ridge between Lot creek and Second creek, ' ' such 
 deed was held to establish the division-line as supported by the evidence. 4 
 
 A discrepancy between calls of a plat and marks on the ground may be 
 explained by evidence that the tract is larger than the plat called for, and that 
 the lots as then occupied were of a certain length, corresponding to the 
 -original tract. 5 
 
 621. Testimony of Old Inhabitants against Paper Title, When the 
 dividing-line of two estates fe in controversy and it appears that there is no 
 record of the original monuments or surveys, the testimony of those who 
 remember where the corners of lines were, as shown by a fence erected nearly 
 forty years before the trial and subsequently removed on becoming dilapidated, 
 will control in favor of the party who claims to such fence and who has 
 occupied the premises for more than twenty years prior to the bringing of an 
 action, as against the paper title of the parties and the testimony of many 
 witnesses that they do not remember any such fence and that they have never 
 seen it. 6 
 
 Evidence of marks on trees claimed to be line-trees is admissible. 7 
 
 622. Ancient Maps and Documents. Strictly, an ancient document must 
 be so old as to be beyond living memory, but the idea of an ancient document 
 has been identified with a possession for thirty years. 8 An ancient document, 
 as the term is usually employed in the law of evidence, is a document which 
 is not less than thirty years old. In some cases it has been declared that the 
 map or deed should be more than thirty years old, and in exceptional 
 
 1 Mullaney v. Duffy (111. Sup.), 33 N. 163 [1899]. 
 E. Rep. 750. 6 Richwine v. Presby. Ch. (Ind.), 34 N. 
 
 'Carter v. Clark (Me.), 42 All. Rep. E. Rep. 737. 
 
 398 [1898]. And see Allen v. Worsham, 7 Greif v. Norfolk & W. R. Co. (Va.), 
 
 49 S. W. Rep. 525 [1899]. 30 S. E. Rep. 438 [1898]. 
 
 3 Fulcher v. White (Tex.), 48 S. W. 8 6><r Gilbert on Evidence (2d ed.), pp. 95, 
 
 Rep. 881 [1899]. 102; Greenleaf on Evdce., 507; Taylor 
 
 4 Grigsby v. Combs (Ky.), 21 S. W. on Evdce., 659; Clark v. Owens, 18 N. 
 
 Rep. 37- Y - 437- 
 
 6 Kron v. Daugherty, 9 Pa. Super. Ct. 
 
43 T DETERMINATION AND PROOF OF BOUNDARIES. 623. 
 
 instances documents which are twenty-five, twenty-eight, or nearly thirty 
 years old have been admitted as evidence. 1 
 
 Ancient plottings or plans and field-notes made by a surveyor are inadmis- 
 sible to prove boundaries as an ancient map. 2 The courts distinguish field- 
 notes from recitals in deeds, on the ground that the latter are contained in 
 documents which constitute transactions in reference to the land. A certified 
 copy of the record of a deed has been held not admissible as of an ancient 
 instrument unless the deed was properly of record. 3 
 
 623. Computing the Age of a Document, In computing the age of an 
 ancient document to determine whether or not it is an ancient instrument 
 within the rules of evidence, the time is usually reckoned from the date of the 
 execution. This rule is not universal, but is modified under some circum- 
 stances in reference to wills. The time is reckoned up to the date when the 
 instrument is offered as evidence, and a document which is thirty years old at 
 that time is an ancient document even though it may have been less than 
 thirty years old when the suit was begun. Generally a document will prove 
 itself to be an ancient document, and will be admitted as evidence without 
 proof of its being authentic or of having been executed, as by calling the attest- 
 ing witnesses, or by proving their handwriting, or in any other manner. This 
 rule applies only in the absence of fraud or in the absence of proof that the 
 instrument is invalid, which must appear on the face of the instrument, and 
 only when there is proof that it comes from the proper custody. In some 
 instances the courts have held that it must be shown that possession was held 
 or action taken in accordance with the provisions of the instrument. 
 
 If there are erasures or interlineations or mutilations, the presumption of 
 its genuineness is overcome and it must be proved in the usual way. The 
 instrument should come from a proper custody, such as that in which it might 
 reasonably be expected to be found. ' If it be not proven to have come from 
 such custody, then it must be proven in the usual manner. It has been held 
 that the custody need not be the most proper custody. The ancient docu- 
 ment should be shown to have been in the possession or custody of parties to 
 whom it would naturally or reasonably have come, or some explanations 
 should be offered as to why or wherefore the possession was unusual. 
 Registry offices, church records, public and private libraries and museums, 
 may be proper custodians of deeds and other papers which are offered in 
 evidence. Relatives and descendants of grantors and grantees, into whose 
 possession such papers might reasonably and properly come, may be proper 
 custodians of such documents. 
 
 There is some confusion in the decisions as to how far it is necessary to 
 show some act performed or some possession acknowledged in accordance 
 
 l z Amer. & Eng. Ency. Law (2d ed.) 132 Mass. 483. 
 
 322. 3 Settegast v. Charpiot (Tex.), 28 S. W. 
 
 2 Boston Water-power Co. v. Hanlon, Rep. 580. 
 
023. OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 with the terms of the document. In this country it is pretty well settled that 
 evidence of possession is alone sufficient authentication of the deed to show 
 it to be ancient, but there is a difference of opinion as to whether the proof 
 of possession under the deed is necessary to i ( ts admission in evidence. In 
 some states such proof is absolutely required, while in others the deed is 
 admitted in evidence where no possession is shown, if there be some other 
 evidence to corroborate its genuineness. 
 
 It is the prevailing doctrine that the length of possession necessary, where 
 that alone is relied upon, is thirty years; but where there is other evidence 
 tending to corroborate the testimony, this rule has been relaxed. In New 
 York it has been held that evidence of possession of part of the premises' is 
 sufficient. 
 
 Facts and circumstances must be shown to establish the age of the docu- 
 ment as thirty years or more, in order to make it admissible under the rule. 
 Generally it is not enough that the document purports to be ancient. 
 Ancient documents are most frequently employed to establish boundaries both 
 of public and of private lands, also to identify lines as by an ancient deed. 
 
 If an ancient document be not accounted for, so that some proof of its 
 genuineness is necessary, or if the document, while not ancient, be yet suffi- 
 ciently old to make such proof difficult, very slight proof will be sufficient in 
 comparison with what will be required of very recent transactions. l 
 
 In some states old documents containing information as to the location 
 of private boundaries, although not constituting deeds of ownership, are 
 admissible. a 
 
 The words " ancient documents" have been held to include deeds, maps, 
 wills, leases, bonds, powers of attorney, receipts, letters, and in fact almost 
 any document which from its nature is evidence of the matter of fact in issue 
 in any particular case. ' One of the most frequent instances of ancient docu- 
 ments is that of maps and surveys introduced for the purpose of showing" 
 boundary-lines of the government subdivisions and of private estates. In such 
 cases it may include the map or plat of the survey, the field-book or notes 
 kept by the surveyor in making the survey, or letters and reports made by the 
 surveyor upon the subject of the survey. 3 
 
 An old map which is well known and accepted as such has been held 
 admissible in evidence in an action involving boundary-lines. 4 Where a 
 description contains the phrase " to and along the line," the true location of 
 of which line is uncertain, maps in common use at the time are admissible to 
 show the location and name of the line. 5 An old map was admitted to show 
 
 1 2 Amer. & Eng. Ency. Law (zd ed.) 3 2 Amer. & Eng. Ency. Law (2d ed.) 
 
 330-332. 323. But see Boston Water-power Co. v. 
 
 2 Hathaway v. Evans, 113 Mass. 264; Hanlon, 132 Mass. 483. 
 
 Morris z/. Cullanan, 105 Mass. 129; Spar- * Taylor v. McConigle, 52 Pac. Rep. 
 
 hawk v. Bullard (Mass.), i Mete. 95; 159. 
 
 Dobson v. Finley *(N. C.), 8 Jones 495, 5 Hanlon v. Union Pac. Ry. Co. (Neb.), 
 
 all cases of recitals in old deeds. 58 N. W. Rep. 590. 
 
433 DETERMINATION AND PROOF OF BOUNDARIES. 625. 
 
 the boundaries of a tidal creek, since filled in, in a suit between private parties. l 
 Streams mentioned in an old survey, no longer capable of being located by the 
 names given, may be identified from maps of contemporaneous surveys. 2 
 
 624. Maps and Documents Not Received as Evidence. Deeds and maps 
 which may be used by a surveyor to assist him in refreshing his memory and 
 as data from which to testify, and which when sworn to as correct are admissible 
 as testimony, should be distinguished from maps and plans which may be 
 introduced directly as evidence of what they contain. In the one case it is the 
 testimony of the surveyor which is received, based upon or strengthened by 
 the map, while in the other the map alone is received for what it may contain. 3 
 
 An unofficial plat made by a surveyor may be admitted in evidence to 
 explain and illustrate his testimony in regard to the surveys and measurements 
 he has made. 4 It may be admitted only in connection with his testimony and 
 not as independent evidence. 5 
 
 It is proper to permit the jury, when it retires, to take with it the report of 
 the surveyor and a map of the premises attached to the report, to which refer- 
 ences had been made to explain testimony. 6 
 
 A county map, filed in the state comptroller's office, when it is not shown 
 when, and by whom, and for what purpose it was made or how long it had 
 been on the public files, and where there was no statute which required the 
 comptroller to cause such maps to be made and filed in his office, will not be 
 received as evidence. 7 A map recently made for the use of the assessors of 
 the town, but not verified as to its correctness, is not admissible as evidence 
 to prove the location of boundary-lines. 8 In California a plat of a survey 
 made by a county surveyor is not admissible as evidence unless it is made out 
 and certified to as provided by statute. 9 
 
 625. Evidence of Declarations by Deceased Persons.* The declarations 
 of a deceased person in relation to the location of a particular corner or 
 marked boundary-line dividing his lands from those of another are admissible 
 in evidence in a trial to determine the boundaries between subsequent owners 
 or claimants. 10 The declarations should not be subject to suspicion of bias 
 
 !Drury v. Midland R. Co., 127 Mass. 5 Tinner v. United States (C. C. A.), 66 
 
 571. See also Adams v. Stanyan, 24 N. Fed. Rep. 280-289; McVey v. Durkin 
 
 H. 405. (Pa.)- 20 Atl. Rep. 541 [1890]; Taylor 
 
 2 Kain v. Young (W. Va.), 24 S. E. v. McConigle (Cal.), 52 Pac. Rep. 159 
 
 Rep. 554; Taylor v. McConigle, 52 Pac. [1898]. 
 
 Rep. 159; Hanlon v. Union Pac. Ry. Co. 6 Wardlow v. Harmon (Tex.), 45 S. W. 
 
 (Neb.), 53 N. W. Rep. 590. Rep. 828. 
 
 , As to how far the history of a county 7 Donohue v. Whitney (N. Y. App .), 30 
 
 or community is admissible as evidence N. E. Rep. 848. 
 
 to establish boundaries or title to lands in 8 Donohue v. Whitney (N. Y. App.), 30 
 
 dispute, see Roe v. Strong (N. Y.), 14 N. N. E. Rep. 848. 
 
 E. Rep. 294 [1888]. 9 Doherty v. Thayer, 31 Cal. 140 
 
 'Wardlow v. Harmon (Tex.), 45 S. W. [1866]. 
 
 Rep. 828 [1898!. 10 Halstead v. Mullen, 93 N. C. 252 
 
 4 Goldsborough z/. Pidduck (la.), 54 N. [1885]; Smith v. Headeick, 93 N. C. 210. 
 W. Rep. 431. 
 
 * See Sec. 620, supra. 
 
625. OPERATIONS PRELIMINARY TO CONSTRUCTION. 434 
 
 from interest of the deceased owner, and a mere general statement or 'claim 
 that certain land was in his boundary, or statements as to where the lines 
 would run, or that he owned the land, without referring to any corners or 
 marked lines, is inadmissible. 1 A witness cannot testify as to statements 
 made to him as to the location of boundaries by persons who are alive and 
 can testify. 2 
 
 It is not necessary to show the knowledge or means of information of such 
 deceased person in order to make his declarations admissible. If such 
 knowledge or means of information are not shown, it only goes against the 
 weight of evidence and does not determine its admissibility. 3 
 
 Declarations of the plaintiff's grantors, since deceased, made when in 
 possession of a lot, as to its location and as to what the true line of a 
 street was, are admissible in evidence. 4 Declarations of a borough regulator 
 who had run the lines of lots in question are admissible to prove where the 
 dividing-line was actually located, 5 as are the declarations of the common 
 grantor, made while the owner of both tracts, as to the location of the lines 
 between them, 6 or declarations made at the time he sold the land to subse- 
 quent purchasers. 7 A sheriff cannot testify as to which one of two maps, that 
 equally answer his description, he referred to in a deed executed by him, the 
 land being incapable of identification. 8 
 
 Parol evidence that the grantor, soon after the conveyance, ran out the 
 line and marked the trees on it, and that the grantees cut trees up to 
 such line, is admissible to aid in the construction of the deed. 9 Evidence 
 that corner trees were marked on the boundaries of the land in dispute, and 
 that, when one marked tree had disappeared, witness marked another to show 
 where it had stood, was competent. 10 
 
 The declarations should have been made when the deceased person was 
 pointing out or marking the boundaries or discharging some duty relating 
 thereto. n A witness cannot testify to what a deceased surveyor told him as 
 to where he had located a certificate. 12 
 
 The fact that the deceased person was a son-in-law of the former owner 
 and carried the chain when such owner had some lines run, but the lines were 
 not shown to be the lines in question, will not render his declarations 
 admissible as evidence in regard to the boundaries. 13 
 
 1 High v. Pancake (W. Va.), 26 S. E. Rep. 546 [1888]. 
 
 Rep. 536. 8 Cadwaller v. Nash (Cal)., 14 Pac. 
 
 2 Smith v. Cornett (Ky.), 38 S. W. Rep. Rep. 385. 
 
 689. 9 Clark v, Munyan, 22 Pick. 410 [1839]. 
 
 3 Payne v. Crawford (Ala.), 14 So. Rep. 10 Lewis v. Roper L. Co. (N. C.), 18 S. 
 854- E. Rep. 52. 
 
 4 Elgin v. Beckwith (111.), 10 N. E. Rep. "Clay Co. L. & C. Co. v. Montague 
 558 [1887]. Co. (Tex.), 28 S. W. Rep. 704. 
 
 3 Haupt v. Haupt, 15 Atl. Rep. 700 12 Hill v. Smith (Tex. Civ. App.), 25 S. 
 
 [1888]. W, Rep. 1079. 
 
 6 Sharp v. Blankenship (Cal.), 21 Pac. n Fry v. Stowers (Va.), 22 S. E. Rep. 
 Rep. 842. 500. 
 
 7 Austin v. Andrews (Cal.), 16 Pac. 
 
435 DETERMINATION AND PROOF OF BOUNDARIES. 627. 
 
 626. Person Making Declarations must have had Peculiar Means of 
 Knowing- Boundaries.* Declarations as to boundaries made by a grantor, 
 since deceased, while on the land and in possession of it may be introduced. 
 The declarations of any deceased person as to a corner tree or boundary are 
 admissible if it be shown that he had peculiar means of knowledge. 1 What a 
 former owner of an older survey who was one of the original surveyors of a 
 tract, and who helped to locate the corners, and who has since died, has 
 pointed out to witnesses as the corner, is admissible. 2 
 
 Declarations of a deceased surveyor made while he was surveying a differ- 
 ent tract of land, the survey of which was not originally made by himself and 
 of which he had no previous knowledge, are not admissible to identify the 
 corners and lines of the survey in dispute. 3 Yet when a deceased surveyor 
 has surveyed another tract of land and in so doing has located the line in 
 dispute and the tract in question, his declarations in regard thereto are 
 admissible whether such other surveys are legal or not. 4 Admission of testi- 
 mony of a surveyor as to a boundary cannot be held error though in running" 
 the line he began his survey outside the land in controversy, the circumstances 
 and facts relative to the lines and adjoining lots not appearing. 5 
 
 Whatever a surveyor knows or learns in regard to the boundary while 
 making a survey he may testify to in a trial to determine the boundary. He 
 may testify that he ran the line, that a certain map was made of the survey, 
 and that the map is correct. 6 He may testify that he found trees of the same 
 species as were designated in the description at about the proper course and 
 distance from the corners, and explain how there might be a slight discrepancy 
 between the bearing and the trees as shown in the original surveys and as he 
 found them on the grant, owing to the variation of the needle. 7 
 
 The surveyor should not be interested. 8 A statutory law which provides, 
 that no survey or resurvey thereafter made by any person except the county 
 surveyor shall be considered legal evidence, does not render any surveyor 
 incompetent to testify as to a survey or the correctness of a plat thereof made 
 by him. 9 
 
 627. Opinions of Witnesses Not Admissible. The opinions, speculations, 
 or conjectures of a witness as to the location of lines and monuments cannot 
 be admitted in evidence to explain a description in a patent or deed. Wit- 
 nesses can testify only as to the existence of facts and of condition on the 
 
 l ry v. Stowers (Va.), 22 S. E. Rep. Gunn v. Harriss (Ga.), 14 S. E. Rep. 
 
 500. 593; State v. Hoff (Tex.), 29 S. W. Rep. 
 
 2 Beal v. Asberry (Tex.), 20 S. W. Rep. 672. 
 
 115. 7 Angle v. Young (Tex.), 25 S. W. Rep. 
 
 'Cable v. Jackson (Tex.), 42 S. W. Rep. 798; Busse v. Covington (Ky.), 38 S. W. 
 
 136. Rep. 865. 
 
 *Cottingham v. Seward (Tex.), 25 S. 8 Cross v. Tyrone Min. & Manfg. Co., 
 
 W. Rep. 797. 121 Pa. St. 390. 
 
 6 Martyn v. Curtis (Vt.), 35 All. Rep. 9 Hopper v. Hickman (Mo.), 46 S. W. 
 
 333. Rep. 973 [1898]. 
 
 * Set Sec. 620, supra. 
 
628. OPERATIONS PRELIMINARY TO CONSTRUCTION. 436 
 
 ground to explain what is called for in the writing. The lines described must 
 be located according to the description in the instrument. 1 It is wrong to 
 admit testimony as to what a witness supposed, or what was generally supposed, 
 to be the boundary-line, though the witness had been long and intimately 
 acquainted with the premises; 2 although, in an effort to establish adverse 
 possession, it is admissible to ask a witness whether it was generally known in 
 the vicinity of the land that defendant's grantor claimed title. 3 The state- 
 ments of a witness that a ditch was acquiesced in as the dividing-line, and 
 was tacitly consented to by all parties for the reason that no one ever 
 obstructed or put a fence in the ditch, are not admissible, being the witness's 
 conclusion. 4 
 
 Where a surveyor, appointed, in an action of trespass to try title, to survey 
 the land and determine the true location of a boundary-line that is in dispute, 
 makes a report in which he attempts to determine questions of fact and to 
 gather up and report evidence, it is proper to quash his report. 5 
 
 628. Surveyor's Opinion as Evidence when Based npon Knowledge of 
 Facts. Abstract opinion is not evidence, but a surveyor, or any other person 
 conversant in the subject may state facts, and his opinion on those facts, to 
 enable the jury to form a correct judgment of the matter in dispute. This is 
 information, on a question of science, which others unacquainted with the 
 subject must necessarily lack. A surveyor who has not seen the tract of land 
 may after hearing the evidence of others be called to prove on his oath the 
 general condition or effect of the case and its probable result. 6 The conclu- 
 sions of a surveyor (who is properly instructed) derived from his knowledge 
 of lines and corners found on the ground, may always be given. His opinion 
 upon such questions regarding the location of boundaries is admissible, it 
 being a conclusion of fact and not a legal conclusion. 7 
 
 Where in a case a surveyor who was acquainted with the surveys in ques- 
 tion was not permitted to give his conclusions as to the location of a 
 neighboring tract because it was somehow supposed he could not be allowed 
 to give his opinion as to its location, and this for the singular reason that it 
 would ue a legal conclusion, it was held that the conclusion of a surveyor 
 derived from his knowledge of lines and corners found on the ground was 
 certainly one of fact and not of law. The question regarding the location 
 is always one of fact, hence one about which a surveyor who is properly 
 instructed concerning the facts may always give his opinion. 8 
 
 1 Tognazzini v. Morganti (Cal.), 23 Pac. 6 Peak on Evidence 137; Lessee v. Ca- 
 
 Rep. 138. ruthers, 3 Yeates 527 [1803]. 
 
 3 Beecher v. Galvin (Mich.), 39 N. W. 7 Jackson v. Lambert, 121 Pa. St. 190 
 
 Rep. 469 [1889]. [1888]; N. Coal Co. v. Clement, 95 Pa. St. 
 
 'Woods v. Moulevatto C. & T. Co. 126 
 
 (Ala.), 3 So. Rep. 475 [1888]. 8 Farr v. Swan, 2 Pa. 245; Northum- 
 
 * Beecher v. Galvin (Mich.), 39 N W. berland Coal Co. v. Clement, 95 Pa. 126; 
 
 Rep. 469. Jackson v. Lambert, 121 Pa. St. 190 
 
 6 Westbrook v. Guderian (Tex.), 22 S. [1888]; Knox v. Clark, 123 Mass. 216 
 
 W. Rep. 59- [1877]. 
 
 
437 DETERMINATION AND PROOF OF BOUNDARIES. 630. 
 
 However, the question as to how a deed should be construed with refer- 
 ence to a proper location of it, or what was the proper location of a particular 
 deed having reference to other deeds in the case, is a question of law, for the 
 court ; and it is not competent for a surveyor to give an opinion concerning 
 such a question. 1 
 
 Testimony of the surveyor who located the line has been received to 
 establish an agreement between the parties as to the location of a boundary,* 
 and to disprove such an agreement ; 3 or to prove that a certain line was 
 pointed out. 4 
 
 Where the field-notes of a survey are inconsistent, the true description of 
 the survey may be shown by the evidence of the surveyor who made it. 5 A 
 surveyor's declarations are not admissible to contradict his official report on 
 which the commonwealth has issued a grant. 6 
 
 629. Person must Not have had an Interest in Making such Declara- 
 tions. An owner of land who is not a surveyor may not testify in a suit 
 between other parties as to the meaning of boundary-lines on the map of the 
 land, put there by his direction when the map was made, the surveyor being 
 dead, since such lines are the declarations of an interested party. 7 
 
 Declarations of a deceased owner made to the son while hunting on the 
 land, a long while before the controversy arose, are competent to prove the 
 location of a boundary which was pointed out when the declarations were 
 made. 8 Declarations by a person after he had ceased to be an owner are not 
 admissible unless they are declarations of a deceased person as to the location 
 of ancient boundaries made on the ground before the controversy arose, and 
 unless such person is shown to have had knowledge but no interest in the 
 case. 9 A declaration of a grantor as to boundaries is not admissible in favor 
 of his grantee and as against persons not claiming under the grantor. 10 
 
 The declarations of a testator explaining the terms of his will setting forth 
 the boundaries, where both parties claim title under such will, are admissible. 11 
 
 630. Starting-point in Making a Survey. When two deeds describe land 
 as starting from points directly opposite, the distances between the calls, the 
 monuments, and lengths of the lines run being exactly the same, the presump- 
 tion will be conclusive that both surveys are of the same line, and that it is 
 the true boundary-line. 12 
 
 v Kelso v. Steiger (Md.), 24 Atl. Rep. 49. 
 
 18. 8 Robbins z>. Dewhurst (C. C. A.), 68 
 
 " 2 Scott v. Means & R. I. Co. (Ky.), 19 Fed. Rep. 336. 
 
 S. W. Rep. 189. 9 Martyn v. Curtis (Vt.), 35 Atl. Rep. 
 
 8 Archer v. Helm (Miss.), 12 So. Rep. 333; Wood v. Willard, 37 Vt. 377. 
 
 702. 10 Taylors. McConigle (Cal.), 52 Pac. 
 
 4 Scott v. Means & R. I. Co., supra. Rep. 159. 
 
 5 Schley v. Blum (Tex. Civ. App.), 22 "Franklin v. Woolridge (Ky.), 45 S. 
 
 S. W. Rep. 264. W. Rep. 98 [1898]. 
 
 6 Reusens v. Lawson (Va.), 21 S. E. 12 Wise v. Burton (Cal.), 14 Pac. Rep. 
 
 Rep. 347. 678, 683 [1887]. 
 
 7 State v. Croker (S. C.), 27 S. E. Rep. 
 
631. OPERATIONS PRELIMINARY TO CONSTRUCTION. 43& 
 
 In determining the boundaries of a survey, the beginning corner as given 
 in the field-notes is of no more dignity or importance than any other corner 
 found upon the ground. 1 The initial point and base-line of a survey may not 
 necessarily be more controlling or even so much so as other points in the 
 survey which are ascertained. a Evidence that in making the survey on the 
 ground the surveyor started at the northeast corner is not contradictory of the 
 field-notes, which in describing it commence at another corner. 3 
 
 An ordinance declaring that certain stakes are the initial points of a survey 
 already made, and which attempts to locate lines therein, is void. 4 
 
 631. Evidence to Establish Starting-point of Survey. Frequently the 
 starting-point of the survey is not described sufficiently to be conclusive as to- 
 what is the exact location, and in such a case the determination of the point 
 of beginning may depend upon the evidence of old residents or of surveyors- 
 who have made the earlier surveys. 5 
 
 Where several old residents had testified to having seen a certain pine-tree 
 with an "X" marked upon it, and to having heard such tree spoken of as a 
 corner of a certain tract of land and as a corner from which surveys were 
 commonly run, and had testified that such trees were rare in the vicinity, and 
 one surveyor testified to having run surveys from the same tree, it was held 
 that the evidence showed that such tree was a well-known and easily ascer- 
 tained point at a time long since passed. 6 
 
 ' When, however, such a tree was pointed out by an aged resident as a 
 corner of a certain survey, and a survey run out from that tree as a starting- 
 point failed to locate the corners as described in the description, it was held 
 that the evidence was insufficient to locate the beginning-point and was there- 
 tore insufficient to locate the line. 7 
 
 If, by commencing at the point specified and running either as claimed 
 by plaintiff or by defendant, some of the distances, where no monuments were 
 specified in the description, must be disregarded in order to return to the 
 point started from, a latent ambiguity arises to solve which oral testimony will 
 be admissible. 8 
 
 Where a witness a civil engineer testified to the location of the southeast 
 corner of a block (the facts being disputed as to the place where that corner 
 was originally established) as established by him, by measuring from original 
 stakes still in existence, and that he measured from such stakes on the west 
 
 1 Cox v. Finks (Tex.), 41 S. W. Rep. 95; been tampered with or removed, see 
 
 , Miles v. Sherwood (Tex.), 19 S. W. Rep. Woods v. West (Neb.), 56 N. W. Rep. 30, 
 
 853. 5 Hartsell v. Coleman (N. C.), 21 S. E. 
 
 2 Orena v. Santa Barbara (Cal.), 28 Rep. 392. 
 
 Pac. Rep 268. 6 Riseden v. Harrison (Tenn.), 42 S. 
 
 3 Lumpkin v. Draper (Tex.), 18 S. W. W. Rep. 884. 
 
 Rep. 1058. 7 Holmes v. Sapphire Val. Co. (N. C.) r 
 
 *Orena v. Santa Barbara (Cal.), 28 28 S. E. Rep. 545; Graves v. Texas, etc. ,. 
 
 Pac. Rep. 268. R. Co. (Tex.), 31 S. W. Rep. 87. 
 
 As to the best manner of locating an 8 Rugg v. Ward (Vt.), 23 Atl. Rep. 726, 
 original government corner which has 
 
439 DETERMINATION AND PROOF OF BOUNDARIES. 632. 
 
 and south exterior boundaries of the block, and by that means established the 
 .southeast corner, and from the point so established made his final measure- 
 ments as testified to on the trial, this was held to be a proper method of 
 establishing such lost corner. 1 
 
 In Wisconsin the unvarying rule to be followed in establishing a lost 
 corner is to start at the nearest known point on one side of the lost corner 
 on the line on which it was originally established; then to measure to the 
 nearest known corner on the other side, on the same line; then, if the length 
 of the line is in excess of that called for by the original survey, to divide it 
 between the tracts connecting such two known points, in proportion to the 
 lengths of the boundaries of such tracts on such line as given in such survey. 2 
 However, in locating a northwest corner of a section of which the northeast 
 corner can be located, it was held wrong to start from a subsection corner in 
 an adjoining township subdivided under a different survey and requiring the 
 surveyor to run a mile and a half to connect the subdivision surveys of the 
 two townships. He should instead merely have followed the calls of the 
 division survey of the township in which the section is located. 3 
 
 When a description designates the beginning corner as a wild China-tree 
 and none of the other corners or lines has been marked upon the ground, it 
 is error for the court to instruct that the beginning corner is of no higher 
 dignity or importance than any other corner of the survey, since the true 
 location of the beginning corner is controlling. 4 On the other hand, when 
 the surveyor abandons a call in the deed for the beginning corner which is- 
 to him clearly wrong, and adopts a new call by which a substantial compli- 
 ance is made with the other calls in the deed, the land conveyed by the field- 
 notes of the surveyor with such changes will hold, especially when the 
 question is not raised for many years thereafter. 5 
 
 In locating the inner corner (center) of quarter-sections it has been held 
 that it should be placed at a point midway between two section-lines rather 
 than at a point 1320 feet from one of the corners. 6 Another case holds that 
 the interior quarter-section corners should be located by intersection, i.e., by 
 running lines from the quarter corner on the east to the quarter corner on the 
 west, and from the quarter corner on the north to the quarter corner on the 
 south. 7 
 
 632. Survey made by Direct or Reverse Calls, Sometimes it is held 
 that, in order to locate a monument or boundary of land which was run by 
 courses and distances, the footsteps of the surveyor should be followed instead 
 
 1 Lewis v. Prien (Wis.), 73 N. W. Rep. 366. 
 
 654 [1897]. 6 Blackburn v. Norman (Tex.), 30 S. 
 
 2 Lewis v. Prien (Wis.), 73 N. W. Rep. W. Rep. 718. 
 
 654 [1897]. Packscher v. Fuller (Wash.), 33 Pac. 
 
 O'Hara v. O'Brien (Cal.), 40 Pac. Rep. 875. 
 
 Rep. 423. 7 Gerke v, Lucas (la.), 60 N. W. Rep. 
 
 4 Ayers v. Beaty (Tex.), 24 S. W. Rep. 538. 
 
633- OPERATIONS PRELIMINARY TO CONSTRUCTION. 440 
 
 of taking a reverse course. 1 However, the calls of the survey may be reversed 
 under a recognized rule that the beginning corner of a survey is of no higher 
 dignity than any other corner, if by so doing it is found that the discrepancy 
 in the area of the survey is lessened, and that the line falls along the line of 
 the alleged conflicting survey. 2 
 
 The fact that the lines of the survey as laid down in the field-notes include 
 more land than the state was authorized to grant for the purpose intended 
 does not furnish any reason for reversing the calls of the survey and altering 
 one of the lines so as to diminish the quantity of land. Especially is this 
 true when such a change would result in extending the titles of other persons 
 who had paid for their land and had held it for many years. 3 
 
 633. Methods of Closing a Survey in Certain Cases of Error. To make 
 a survey close, when all the other lines and corners disclose no error or incon- 
 sistency, the course and distance of the last line should be rejected as 
 erroneous, and effect be given to the more certain designation, ' * thence to 
 the place of beginning." 4 Where the last call in the boundary of a patent is 
 " north 20 poles, to the beginning," the line must be run to the beginning 
 though the course is N. 5 10" E. , and the distance is 141 poles, as the call 
 to 'the beginning must prevail regardless of course and distance. 5 * The 
 courses in a deed must yield to distances when such was the evident intention 
 of the parties. 6 
 
 Where land conveyed forms a triangle, and two sides and the acreage are 
 given, a straight line from point to point will be adopted as the third side, 
 when the boundary thus formed will inclose the number of acres called for. 7 
 
 So, also, when a deed describes land as containing a certain amount and 
 gives its north, south, and west boundaries; an eastern boundary added 
 thereto, which is shown to be erroneous, may be rejected. 8 If the east and 
 west lines of a part of a lot correspond with each other within a fraction of a 
 foot and with the known and fixed boundaries called for by all prior deeds, 
 the identity of the premises is not affected by the fact that the north and south 
 lines are inconsistent and one must, and both may, be wrong. 9 
 
 If there be an obvious mistake in the description and the intention of the 
 parties can be determined from such description, the court will interpret the 
 
 1 Blackburn v. Nelson (Cal.), 34 Pac. S. W. Rep. 348 [1897]. 
 
 Rep. 775; Duncan v. Hall (N. C.), 23 S. 6 Scott v Weisburg (Tex. Civ. App.), 
 
 E. Rep. 362. 21 S. W. Rep. 769. 
 
 2 Miles v. Sherwood (Tex.), 19 S. W. 7 Hostetter v. Los Angeles Ry. Co. 
 Rep. 853; Swenson v. Willsford (Tex.), (Cal.), 41 Pac. Rep. 330; Wells v. Hed- 
 19 S. W. Rep. 613. denberg (Tex.), 30 S. W. Rep. 702. 
 
 3 White v. Bum (C. C. A.), 79 Fed. 8 Scates v. Henderson (S. C.), 22 S. E. 
 Rep. 271. Rep. 724; Ray v. Pease (Ga.), 22 S. E. 
 
 4 Owings v. Freeman (Minn.), 51 N. W. Rep. 190. 
 
 Rep. 476 [1892]; Fullam v. Foster (Vt.), 9 Blumenthal Co. z/. Broock (Mo. Sup.), 
 
 59 Atl. Rep. 484. 29 S. W. Rep. 836. 
 
 5 Sirapkins' Adm'r v. Wells (Ky.), 42 
 
 * See Sees. 547-550, supra. 
 
44 I DETERMINATION AND PROOF OF BOUNDARIES. 633. 
 
 deed so as to give effect to such intention. An impossible or senseless course 
 given in a deed will be disregarded if the other calls of the description are 
 sufficient to identify the land. 1 If certain calls are given and one of them be 
 such that if followed no land whatever would be described, the description 
 will not be insufficient, but the manifest intention of the parties will prevail. 2 
 However where land was described as " Commencing at a point in the 
 easterly line of said premises, 3^ inches southerly from the northerly line, and 
 running thence westerly to a point in the said northerly line distant 19 feet 
 westerly from the easterly line thereof, ' ' it was held to be a description of a 
 straight line only, by which possession could not be delivered. 3 
 
 If land be described as to its boundaries on three sides, the misnomer of 
 the street on the fourth side will be immaterial. 4 A mistake which designates 
 the starting-point as the northwest corner of certain streets when the plans 
 and the description show that the southwest corner was intended will not 
 affect the validity of the deed. 5 
 
 When, in order to make two surveys connect as required by one of the 
 calls of the description, it would change the location of three out of four 
 surveys, and would disregard a corner marked by bearing-trees, and would 
 require that the north and south lines of the surveys be increased 10 per cent., 
 it was held that, rather than make such marked changes in other surveys, the 
 call for the surveys to connect should be disregarded. 6 
 
 Under a description as that lot situated on a certain corner of two 
 streets, having a front on one of 108 feet " more or less," and running back 
 on the other street 126 feet " more or less," " constituting the only realty of 
 said estate, ' ' it was held that, though intestate (grantor) died seized of a lot 
 1 60 by 126 feet, situate on said corner, it did not all pass by the deed. 7 
 
 Where three sides and the number of acres are known and it is disputed 
 whether the fourth side is a straight or a meandering line, the straight line will 
 be adopted when the tract thus inclosed contains the niimber of acres called 
 for, and when the acreage would be largely increased if the meandering line 
 were adopted. 8 
 
 If all the calls made by the locating surveyor cannot be strictly 
 observed, as few should be disregarded as possible. If the beginning point 
 be established, lines should be run in both directions as far as possible, and 
 the gap closed as seems most consistent with all the calls. 9 Incidental calls, 
 noted in field-notes as such in passing, unless specially designated in such 
 
 1 Brose v. Boise City P. Co. (la.), 51 'Texas Town-site Co. v. Hunnicutt 
 
 Pac. Rep. 753 [1897]. (Tex.), 31 S. W. Rep. 520. 
 
 'Hobanz/. Cable (Mich.), 60 N. W. Rep. 7 Bromberg v. Yukers (Ala.), 19 So. 
 
 466. Rep. 49. 
 
 8 Rowland v. Miller (Super. N. Y.), 18 8 Hostetter v. Los Angeles Terminal 
 
 N.Y. 5.205; Code Civil Proc.N. Y.,i5ii. Ry. Co. (Cal.), 41 Pac. Rep. 330. 
 
 *Lochte v. Austin, 69 Miss. 271. 9 Hill v. Smith (Tex.), 25 S. W. Rep. 
 
 5 Heller v.Cohen (Sup.), 41 N. Y Supp. 1079. 
 214. 
 
633- OPERATIONS PRELIMINARY TO CONSTRUCTION. 442 
 
 manner as to show an intention to make them locative, will not ordinarily 
 have precedence over calls for courses and distances. 1 
 
 Where the field-notes returned by a government surveyor show that section 
 and quarter- section corners were established on a straight line between town- 
 ship corners, and their location is fixed by courses and distances, they will be 
 accepted as presumptively correct, and can be overcome only by the most 
 clear and satisfactory evidence. 1 
 
 1 Hanson v. Township of Red Rock in Minnehaha County (S. D.), 57 N. W. Rep. n. 
 
PART IV. 
 
 EASEMENTS. INCORPOREAL RIGHTS. 
 
 CHAPTER XXXII. 
 
 EASEMENTS IN GENERAL. 
 
 641. Easement Defined. Operations frequently arise in the practice of 
 civil engineers and surveyors concerning certain incorporeal rights and interests 
 acquired by, or belonging to, their clients or employers not treated in the 
 foregoing chapters. By incorporeal rights are understood those rights in 
 things that can neither be seen nor handled, that are creatures of the mind 
 and exist only in contemplation. 1 They are generally rights and interests 
 acquired by one person in and over the land of another, and include rights 
 of way, rights to water, support, air, light, view, and a multitude of similar 
 interests -that are appurtenant to and constitute the enjoyment of land. They 
 are called easements. These rights and interests arise and are met with in 
 surveying and in establishing roads, streets, and railways; in the location of 
 bridges, water-works, and sewers; in selecting sites for structures requiring 
 extra lateral support, light, air, and prospect; in fact, in all engineering 
 projects where questions of water rights and privileges may arise, or where ways 
 may be obstructed, and similar injuries to which damages are a consequence. 
 
 An easement or servitude has been defined to be a privilege without profit 
 which the owner of one neighboring tenement has of another, or a right to 
 some profit, benefit, or beneficial use out of, in, or over the estate of another 
 proprietor, which right; compels the servient owner to suffer, or prevents him 
 from doing, on his own land, something which is to the advantage of a 
 dominant owner. 2 Easements are of two kinds, appurtenant and in gross. 
 The former run with the land and pass by a deed of conveyance, while the 
 latter are personal and will not pass by conveyance of the land. Easements 
 in gross belong to the person using them and cannot be assigned to another 
 nor transmitted by descent. Such easements die with the person and have 
 
 1 Blackstone. J 6 Amer. & Eng. Ency. Law 139. 
 
 443 
 
642. OPERATIONS PRELIMINARY TO CONSTRUCTION. 444 
 
 been held to be so exclusively personal that the owner of the right cannot 
 admit another person to share it with him. 
 
 An easenient created by a deed is never presumed to be personal or in 
 gross when it can fairly be construed to be appurtenant to some other estate. 
 If the easement naturally enhances the value of other adjoining lands of the 
 grantor, it is a strong circumstance to indicate that it was intended to be 
 appurtenant to the estate and not merely personal. 1 There is another class 
 of servitudes, known as ^^-easements, which includes two subclasses of 
 easements: (i) where there has been an easement proper, with a dominant 
 and servient tenement, and the ownership of such tenements has been joined 
 in one person in which case, when the ownership is again severed by a con- 
 veyance of the dominant estate, the easement does not pass by the general 
 word "appurtenances," but there may be particular or general words indicat- 
 ing an express intention to grant the easement; (2) where the owner of a 
 tenement has imposed a servitude upon one portion of it for the benefit of 
 another portion and there has never been a separate ownership of the two 
 estates. This second subclass is again subdivided into continuous and discon- 
 tinuous easements. A continuous easement is one in which the enjoyment is 
 or may be continuous without the necessity of any actual interference by man. 
 Such would be a drain or a sewer. A discontinuous easement is one which 
 can be enjoyed only by the interference of man, and among such may be 
 mentioned rights of way or the right to draw water. 
 
 Easements are distinguished from a right of profit, as when a person is 
 entitled to remove and appropriate for his own use anything growing on, or 
 attached to or subsisting upon, the land of another. Such a right is a privi- 
 lege, and it is an easement ; but an easement is or may be a privilege without 
 profit, and merely an accessory to rights of property in land. Such a right 
 to take profits from an estate is called a profit a prendre. 
 
 An easement may have the following essential qualities: (i) there must 
 be two tenements, the dominant and the servient, owned by two or more pro- 
 prietors; (2) the rights are incorporeal and, strictly considered, they exist 
 only in favor of, and are imposed only upon, corporeal property; (3) strictly 
 an easement confers no rights to any profits arising from a servient estate; 
 (4) it must have a character of permanency and continuity; (5) an easement 
 appurtenant cannot be assigned separately from the dominant estate; (6) an 
 easement in gross is not assignable at all, nor is it inheritable. 2 
 
 642. How Easements are Acquired or Created. All easements are 
 created by grant, either express or implied. The latter include those 
 acquired by prescription, since the law presumes the existence of a grant at 
 some former time. An easement being an interest in land, if created by a 
 parol contract it is void under the statute of frauds unless there is shown such 
 a performance as to take it out of the statute. The party asserting a claim 
 *6 Amer. & Eng. Ency. Law 140, 148. 2 6 Amer. & Eng. Ency. Law 140, 142. 
 
445 EASEMENTS IN GENERAL. 645. 
 
 to an easement must prove his right to it clearly. It cannot be established 
 by intendment or presumption. l * 
 
 643. How an Easement may be Lost or Extinguished. An easement 
 may be lost or extinguished (i) by release from the owner of the dominant 
 estate; (2) by merger of the estates under one and the same title; (3) by 
 abandonment. The easement, whether acquired by grant or prescription, may 
 be released, extinguished, renounced, or modified by a parol license granted 
 by the owner of the dominant estate, and executed by the owner of the 
 servient estate. 2 No deed of writing is required to show the abandonment 
 and extinguishment of an easement in the land of another. The act or acts 
 relied on to effect such a result must be of a decisive character. A mere 
 declaration of an intention to abandon will not be sufficient, and the question 
 whether the act amounts to an agreement or not depends upon the intention 
 with which it was done, and that is a question for the jury. 3 
 
 644. Character of Easement Not an Interest in the Fee. A fee simple 
 in land cannot be acquired by prescription by overflowing the land and using 
 the water therefrom; the most that can be thus acquired is an easement. 4 
 However, when a water-works company had occupied land, in connection 
 with its franchise, for eighty years, its possession was held to have ripened 
 into a perfect title as against a village which injured the water-works. It was 
 no defense to an action for trespass that said company did not pay for said 
 land as required by its charter. 5 
 
 When an owner has constructed an addition to his buildings, using the 
 exterior wall thereof as the outside wall of the partition, and conveys that part 
 of the lot on which the addition stands, describing it as the * 'south 26 feet 
 more or less " of the lot with the undivided one-half of the wall, the grantee 
 will take only an easement in the wall and not any part of the land on which 
 it stands. 6 The easement in a street appurtenant to lots is not confined to 
 the steps immediately in front of such lots. 7 
 
 An incorporeal hereditament is a right issuing out of a thing corporate 
 (whether real or personal) or concerning or annexed to or exercisable within 
 the same. It is not the thing corporate itself, which may consist of lands, 
 houses, etc., but something collateral thereto, as a rent issuing out of those 
 lands or houses. 8 
 
 645. Easements Extinguished by Merger of Estates. An easement of 
 way created in deeds from the owner of two adjoining lots to different persons, 
 
 1 Poison v. Ingram, 22 S. C. 541. 5 Boyert/. Village of Little Falls (Sup.), 
 
 2 Morses. Copeland (Mass.), 2 Gray 302. 27 N. Y. Supp. 1114. 
 
 And see Dyer v. Sanford (Mass.), 9 Met. 6 Duncan v. Rodecker (Wis.), 62 N. W. 
 
 395- Rep. 533- 
 
 3 6 Amer. & Eng. Ency. Law 146, 147. 7 Wilson v. N. Y. El. R. Co. (Super.), 
 4 Terre Haute & I. R. Co. v. Zehner 30 N. Y. Supp. 547. 
 
 (Ind. App.), 42 N. E. Rep. 756; Costello 8 United States v. Andres Castillero, 
 
 v. Harris (Pa. Sup.), 29 Atl. Rep. 874. 2 Bl. 20, 21. 
 
 * See Sees. 671-690, infra. 
 
646. OPERATIONS PRELIMINARY TO CONSTRUCTION. 44$ 
 
 in favor of one of them over the other, is extinguished by the subsequent 
 acquirement of the title and possession of both lots by one person. A right 
 of way does not revive and pass by the word ''appurtenances" where a person 
 purchases land formerly a dominant tenement, but having its easement 
 extinguished by the union of the dominant and servient tenements in the 
 grantor. : 
 
 When a mortgagor of a dominant tenement becomes owner in fee of 
 the servient estate, the unity of the two estates does not extinguish the ease- 
 ment so as to affect the rights of one claiming an interest in the easement 
 \inder a foreclosure of a mortgage on the dominant tenement and in which 
 the easement was expressly included. 2 The joining of two estates in the same 
 person, as a mortgagee, will not extinguish a right of way appurtenant to one 
 of the estates until both mortgages are foreclosed. 3 If the title to the land 
 be defective and the title to an easement in it be valid, the easement is not 
 extinguished by unity of possession. 4 
 
 646. Parties Entitled to Enjoy Easement. Where an easement in a 
 private road is granted to the abutting landowner, his heirs or assigns, it 
 means for the benefit of all his heirs or assigns however numerous and into 
 however many parcels the abutting land may be subdivided or assigned. 5 In 
 Utah and other communities where families are large it would seem that the 
 words "heirs or assigns" might be the means of creating a very large 
 burden upon an estate. 
 
 647. Rights and Liabilities of the Parties to the Easement Mainte- 
 nance of Easement. The owner of the dominant estate has a right, as well as 
 a duty, as a part of the servitude, to perform at his own expense all such 
 works as are necessary to preserve and make use of a servitude, and he is 
 therefore entitled to have access to such servient estate to make the necessary 
 repairs. The owner of the servient estate can do nothing to diminish the 
 use, convenience, or benefit of an easement; nor can the owner of the domi- 
 nant estate enlarge his use so as to increase the burden upon the servient 
 estate, except in so far as such change and use may be necessary to make the 
 easement effectual. Both parties have the right to insist that the easement 
 .shall remain substantially as it was at the time of its creation. When a person 
 had an easement in another's land which permitted him to discharge water 
 into a stream by means of a ditch, it was held that if the ditch got out of 
 repair by reason of floods or washing away of its banks or otherwise, it was 
 the legal right of the plaintiff to repair it so as to restore it to its original con- 
 dition and make it subserve the purpose for which it was originally intended, 
 that of carrying off the water. It was held that he was entitled to have the 
 
 1 Fritz v. Tompkins (Sup.), 41 N. Y. 4 Tyler v. Hammond (Mass.), n Pick. 
 
 Supp. 985. 193- ' 
 
 3 Duval v. Becker (Md.), 32 Atl. Rep. 5 Sachs v. Cordes, n Ohio Cir. Ct. 
 
 308. Rep. 145. 
 
 3 Ritger v. Parker, 8 Cush. 145. 
 
447 EASEMENTS IN GENERAL. 648. 
 
 ditch kept up as it was when he purchased his land, and to keep it in that 
 condition, and if necessary to enter upon the defendant's land to make 
 repairs, doing no unnecessary damage. He would have no right to substan- 
 tially change the condition of a ditch to the injury of the defendant's land. 
 He would have no right to change its character by the construction of barriers 
 or embankments and cause greater quantities of water to flow upon the 
 defendant's land in times of freshets or floods. The owner of the servient 
 estate in such a case would have a legal right to reduce such embankments 
 and barriers to the proper standard and size, but would not be justified in 
 destroying the structure. 1 
 
 648. Destruction and Restoration of Easement. In the absence of any 
 express agreement between the parties, the one whose premises are burdened 
 by an easement is bound to offer reasonable facilities for its enjoyment. 2 
 Therefore when an easement was created by reservation in a deed, and con- 
 sisted of a right to take water from a well, there was imposed upon the owners 
 of the servient estate the obligation to keep the well in repair or in a condi- 
 tion to be used. If the owner of the well erected buildings of a permanent 
 character over and upon it and thus destroyed the easement, he is liable for 
 damages for such willful destruction of the easement. If an old right of way 
 be closed and a new one opened up for the use of those having rights in the 
 use of the old one, and if they assent to the change and use the new way for 
 a period less than the statutory period of limitations, the owner cannot close 
 such new way without first restoring the old one to its former condition. If, 
 without restoring the old way, the owner of the land removes the bridge over 
 a stream crossed by the new way, those having a prescriptive right to the old 
 way may rebuild the bridge or fill in the stream where such bridge stood, 
 doing as little damage as possible to the owner of the land, and continuing 
 the use of the way until the old one is restored. 3 
 
 Any one in possession of the dominant estate may have an action for the 
 unlawful obstruction or disturbance of an easement ; and if there be permanent 
 injury to the inheritance, one entitled to the reversion may also have an 
 action. The person injured may seek relief in a court of law or a court of 
 equity. At law the remedy is in damages for the injury already done, and in 
 equity the remedy may be for the injuries done and an injunction to restrain 
 further injury. 
 
 The destruction of the buildings of a servient estate through no fault of 
 the owner does not extinguish the easement where the enjoyment thereof is 
 not dependent entirely on such buildings. On the rebuilding of a mill, by 
 means of which an easement was enjoyed, the easement itself is revived even 
 though there was no obligation on the servient owner to rebuild. 4 
 
 *6 Amer. & Eng. Ency. Law, and many see Kraut's Appeal, 71 Pa. St. 64. 
 
 eases. * Hottell v. Farmers' Protective Ass'a 
 
 1 Bakeman v. Talbot, 31 N. Y. 366. (Colo.), 53 Pac. Rep. 327 [1898]. 
 * Hamilton v. White, 5 N. Y. 9. And 
 
649* OPERATIONS PRELIMINARY TO CONSTRUCTION. 448 
 
 If an adjoining owner who has an easement in a right of way has notice 
 that a building is being erected over his right of way by a person who is 
 chargeable with notice of his rights, he is not estopped from an action to 
 remove it. A court will require the removal of such an obstruction, or that 
 adequate compensation be made giving damages. 1 
 
 649. Abandonment of Easements, The abandonment of an easement 
 may be presumed from various acts of the dominant owner, as, for example, 
 where the holder of a right does or permits to be done any act inconsistent 
 with the future enjoyment of the right. Abandonment may be presumed 
 from non-user for a length of time sufficient to create the right by prescription 
 where such right was originally acquired by prescription. Extinguishment of 
 a right to an easement means its total annihilation, and not its suspension. 
 If extinguished for a moment, it is gone forever. Servitude may be extin- 
 guished by the act of God, by the operation of the law, or by an act of the 
 party. It may be extinguished by a renunciation of the party, either express 
 or implied, as by permitting the party from whom the servitude is due to 
 build upon the property such works as would presuppose an abandonment of 
 the right. An act incompatible with the nature or exercise of a servitude is 
 sufficient to extinguish it. The creation of a new inconsistent right by the 
 party himself will extinguish his former right. 2 
 
 If one who owns an easement in a wall which forms a side of his building 
 erect a new building on a different foundation after the destruction of the old 
 wall and building, he thereby loses his easement. 3 So where a deed conveys 
 the right to use a stairway in a building which is necessary to reach the upper 
 floor of the dominant building, the easement continues only so long as the 
 building of which the stairway is a part exists, and it ceases with the destruc- 
 tion of the building. 4 
 
 Growing a grape-arbor in an alley and allowing a tree to grow therein does 
 not abandon the alley or justify other abutting owners in closing it, the 
 obstructions not being serious and the other lot-owners not having requested 
 that they be removed. 5 An abandonment of a right of way by consenting to 
 its obstruction does not constitute a surrender of the right to maintain a 
 sewer-pipe under the way, provided such pipe has not been obstructed or 
 discontinued. 6 
 
 Land covered by a party-wall remains severally the property of the owner 
 of each half, but the title of each is qualified by the easement to which the 
 other is entitled. The only proper easement in such a case is the easement 
 
 1 Welsh v. Taylor (N. Y.), 50 Hun 137 4 Douglass v. Coonley (Sup.), 32 N. Y. 
 
 [1888]. Supp. 444. 
 
 'Taylors. Hampton (S. C.), 4 McCord 5 Ermentraut v. Stitzel (Pa.), 33 Atl. 
 
 61. Rep. 103. 
 
 3 Duncan v. Rodecker (Wis.), 62 N. W. 6 Stein v. Dahm (Ala.), n So. Rep. 
 
 Rep. 533- 597- 
 
449 EASEMENTS IN GENERAL. 650. 
 
 of support, and it does not include a right to an unobstructed use of a flue 
 by one party which is upon the land of another party. 1 
 
 Where a private lane between two lots was abandoned by the owners, and 
 a line-fence was built in the center thereof, a subsequent purchaser of one of 
 the lots cannot revive the easement in such lane.* Acceptance of a deed 
 making no mention of an alley, but including land on which it is located, 
 is not an abandonment of it by the acceptor, he having actual as well as con- 
 structive notice and knowledge of its existence and location. 3 
 
 Where an abandonment of an easement is relied on, it is for the one 
 claiming such abandonment clearly to prove it. 4 
 
 650. Easements Lost by Non-user. For an easement to become extin- 
 guished by non-user it must have been acquired by user. The doctrine of 
 extinguishment by non-user does not apply to the servitudes or easements 
 created by a deed. An easement acquired by actual grant is not lost by non- 
 user. 5 In the former cases mere disuse is sufficient; but in the latter there 
 must not only be a disuse by the dominant owner, but there must be an 
 actual adverse user by the owner of the land servient. 6 
 
 A permanent obstruction by one party, insisted on by the other, operates 
 to extinguish all right to a use of a common way wherever such obstruction 
 has existed for a period less than the full statutory period. Non-user for 
 twenty years should be accompanied by acts which show an intention to 
 abandon in order that the easement should be extinguished. Otherwise it 
 requires adverse possession as well as non-user to effect the extinguishment. 
 It seems well settled in many of the older states that the owner of a right of 
 way or other easement may, without deed, abandon his right so as to relieve 
 the servient estate of the incumbrance. 7 
 
 Mere non-user is not sufficient to extinguish a right of way unless there 
 has been an actual abandonment of it, or there have been acts, by those in 
 possession of the land over which it exists, not merely inconsistent with the 
 user of the way, but hostile to the right, and constituting some element of 
 adverse possession. 8 
 
 Abandonment is simply non-user of an easement. The enjoyment of the 
 right must have totally ceased for the same length of time as was necessary to- 
 create the original presumption of a grant. Non-user for the full period 
 affords a presumption either that the former presumptive right was extin- 
 guished in favor of some other adverse right, or, if no such adverse right 
 
 1 Ingals v. Plamondon, 75 111. 218 Rep. 1128; Many v. Port Reading R. 
 [1874]. Co. (N. J. Ch.), 33 Atl. Rep. 802; Fird v. 
 
 3 Hennessy v. Murdock (Sup.), 17 N. Y. Harris (Ga.), 2 S. E. Rep. 144. 
 
 Supp. 276. 6 6 Amer. & Eng. Ency. Law 148, cases 
 
 'Ermentrout v. Stitzel (Pa.), 33 Atl. cited. 
 Rep. 103. 7 6 Amer. & Eng. Ency. Law 146-149. 
 
 4 Hennessy v, Murdock (N. Y. App.), 8 Marshall r. Wenninger (Sup. ), 46 N. 
 33 N. E. Rep. 330. Y. Supp. 670; Lathrop v. Eisner (Mich.), 
 
 5 Butterfield v. Reed (Mass.), 35 N. E. 53 N. W. Rep. 791. 
 
651. OPERATIONS PRELIMINARY TO CONSTRUCTION. 450 
 
 appears, that it has been surrendered or never had any existence. Non-user 
 of land, it seems, is sufficient to produce this effect without showing the 
 erection of, or permission to erect, a permanent obstruction. 
 
 When a public way is closed up and held by open and notorious possession 
 for more than twenty years, the abutting property owners lose their private 
 rights in it. 1 But a mere non-user of a street or alley of a town for the period 
 necessary, to give title by adverse possession will not amount to an abandon- 
 ment obstructing the rights of the public. 2 
 
 A mere non-user of a right of way granted to a railroad company will not 
 extinguish the right in the absence of adverse possession by the servient 
 owner, or of some acts which show a clear intention to abandon the right of 
 way. 3 Evidence that a railroad was taken up, the rails and ties removed, the 
 fences taken away, and the bridge across an intersecting river torn down, and 
 all with a view of abandonment, is sufficient to show an abandonment of the 
 easement of the right of way. 4 
 
 An easement of a right of way when once acquired is not extinguished by 
 an omission to use it. 5 A mere non-user without an attempt to abandon will 
 not operate as an abandonment of an easement. 6 The non-user must be 
 attended by an act indicating an attempt to abandon the right of way, to give 
 it the effect of a release. 7 
 
 If an abutting owner conveys all his interest in the street and consents to 
 the closing of the street, his grantee cannot thereafter prevent the streets being 
 closed. 8 If a person have a right of way over a neighbor's lot, and if he con- 
 sent to an enlargement or extension of a building on said lot so as to close 
 the way, he will have surrendered his easement. 9 
 
 651. Extent and Mode of Use of an Easement. The use of an easement 
 is limited strictly to the purpose for which it was created, but its use may be 
 enjoyed in such a manner as will secure all the advantages contemplated by 
 the grant. It has been held that a dominant estate may be divided, and the 
 privileges belonging to the whole will attach to each of the parts. However, 
 the burden upon the servient estate must not be increased thereby. A 
 dominant owner cannot extend privileges which he has in favor of one estate 
 to others that he may acquire. 10 The owner of an easement in the land of 
 another is not bound to use it in the particular manner prescribed by the 
 Instrument which creates it. He may use it in a different manner if he so 
 
 1 Woodruff v. Paddock (N. Y. App.), W. Rep. 342. 
 
 39 N. E. Rep. 1021; Bentley v. Root (R. 5 Welsh v. Taylor (N. Y.), 50 Hun 137 
 
 I.), 32 Atl. Rep. 918. [1888]. 
 
 2 Crocker v. Collins (S. C.), 15 S. E. 6 Valentine v. Schreiber (Sup.), 38 N. 
 Rep. 951; Edgerton v. McMullen (Kan.), Y. Supp. 417. 
 
 39 Pac. Rep. 1021. 7 Suydam v. Dunton (Sup.), 32 N. Y. 
 
 8 Roanoke I. Co. v, Kansas City, etc., Supp. 333. 
 
 R. Co. (Mo. Sup.), 17 S. W. Rep. 1000 8 Comstock v. Sharp (Mich.), 64 N. W. 
 
 And see Kirman v. Hunnewill (Cal.), 29 Rep. 22. 
 
 Pac. Rep. 124. ' Stein v. Dahm (Ala.), II So. Rep. 597. 
 
 4 Jones v. Van Bochove (Mich.), 61 N. l 6 Amer. & Eng. Ency. Law 152. 
 
451 EASEMENTS IN GENERAL. 651. 
 
 desires, provided he does not, in doing so, increase the servitude, nor change 
 it, to the injury of the owner of the servient tenement. l 
 
 So, too, a deed of all the merchantable coal in an open mine under the 
 grantor's land with a right of way over said land to carry the coal away does 
 not authorize the coal mined upon another tract to be carried over the right 
 of way, nor can it be carried over such way by reason of the .practice of a 
 former owner of both tracts. 2 A reservation of a right of way over a farm to 
 a wood lot permits the use of it for hauling stone and other products to the 
 wood lot. 3 * 
 
 1 Tallon v. City of Hoboken (N. J.), 37 226. 
 
 Atl. Rep. 895. 3 Wells v. Tollman (Sup.), 34 N. Y. 
 
 2 Vogel v. Webber (Pa.), 28 Atl. Rep. Supp. 840. 
 
 *Sce Sec. 68 1, infra. 
 
CHAPTER XXXIII. 
 LICENSE, REVOCABLE AND , IRREVOCABLE. 
 
 661. License Distinguished from Easement.* An easement should be 
 distinguished from a license. The former is an incorporeal hereditament and 
 implies an interest in the land upon which it is imposed, and therefore it 
 may be created only by grant, expressed or presumed. A license creates no 
 such interest in the land. A license is authority merely to do some act or 
 acts upon another's land without possessing any estate therein. A license is 
 limited strictly to the original parties and cannot operate for or against third 
 parties. It is founded on personal confidence, is not assignable, and is valid 
 though not in writing. It may be and generally is created by word of mouth, 
 and may ordinarily be revoked at any time by the licensor, though not always. 
 Some courts have held that a parol license when executed may become an 
 easement, but it is submitted that this is a misnomer, and that a better name 
 would be "an irrevocable license " based upon the doctrine of estoppel. 
 
 A proper understanding of the character of a license is very essential to 
 those persons undertaking construction. Works should not be erected and 
 improvements made upon land by permission of the owner thereof without 
 acquiring a right to control or operate such works, in the form of a lease, a 
 grant of an easement, or some interest in the land, that shall be valid and 
 'binding on the owner. Works erected under a mere license from the owner 
 of the land may be required to be removed, or their operation and occupa- 
 tion prevented by the landowner. Such an act on, the part of the landowner 
 might render all the works and improvements abortive and a total loss to the 
 parties who had undertaken them. 
 
 While this is a general proposition of the law, it has not been sustained 
 by the cases in construction work. These cases have uniformly held that 
 when the owner of land has permitted another person to make valuable and 
 permanent improvements upon his land with the expectation and intention of 
 making some use and profit thereby, the owner may not arbitrarily and willfully 
 eject the party without regard to his interests and the profit he might expect 
 to derive from the investment. Parol licenses when executed or acted upon 
 become irrevocable, and after a disclaimer and long user become easements 
 
 * See Sees. 738, 739, infra. 
 
 452 
 
453 LICENSE, REVOCABLE AND IRREVOCABLE. 662. 
 
 in the land of the grantor. It has been so held of a ditch, 1 of sewer- and 
 drain-pipes, 2 of a pipe-line for water, 3 and of a stairway for entrance to upper 
 stories. 4 
 
 662. License to Divert Waters by Dams. Ordinarily an oral permission 
 to divert and use water from a stream is a mere license which is revocable 
 and does not vest any estate in the land. 5 If, however, the licensee has 
 expended money and labor in pursuance of the license, the licensor may be 
 estopped from revoking the license to the detriment and injury of the 
 licensee; 6 as where for eight years riparian owners and their grantors had 
 acquiesced in the diversion of a part of a stream, and a person who was not a 
 riparian owner had yearly aided in keeping the channel of the stream open, 
 and had expended money on his farm which would be useless without the 
 water, a court of equity may refuse to enjoin a further diversion of the water 
 at a suit of such riparian owners. 7 
 
 A license to build a dam, and an undertaking on the part of the licensee, 
 with the licensor's knowledge and assistance, to furnish other persons with 
 water from the dam for a certain period, was held to be irrevocable until after 
 the expiration of that period. 8 
 
 Where the owner of a mill privilege gave the owner of lands which were 
 flowed by the waters impounded by his dam an oral license to erect a dam on 
 the land of the licensee, and also to dig a ditch across the land of the licensor 
 to drain water from a part of the licensee's land, and where under this license 
 the dam was erected and a ditch dug, it was held that the licensor could 
 revoke the license to use the ditch even after the expiration of twenty years, 
 but could not revoke the license to build the dam; and it was further held 
 that, the licensor having undertaken to revoke the whole license, the licensee 
 was justified in making a ditch on his own land to draw off the water so 
 thrown upon it although he thereby diverted the water from the licensor's 
 pond. 9 
 
 Where a landowner had granted a license for the erection of certain dams 
 across a river, a judgment against the licensees for damages caused by 
 improperly maintaining such dams, under a complaint charging them with 
 wrongfully erecting and maintaining the same, was held erroneous as violating 
 the rights of the defendants under the license. 10 
 
 1 Steinke v. Bently (Ind.), 34 N. E. pleadings. Accord, Peay v. Salt Lake 
 
 Rep. 97. (Utah), 40 Pac. Rep. 206. 
 
 2 Atkins v. Thompson (Mass.), 29 N. 6 McBroom v, Thompson (Oreg.), 35 
 E. Rep. 627; Stevens v. Muskegon Pac. Rep. 57; Smith v. Green (Cat.), 41 
 (Mich.), 69 N. W. Rep. 227. Pac. Rep. 1022. 
 
 3 National W. W. Co. v. Kansas City 7 McBroom v. Thompson, supra. 
 
 (C. C.), 65 Fed. Rep. 691. 8 Risiem v. Brown (Tex.), 10 S. W. 
 
 * Joseph v. Wild (Ind. Sup.), 45 N. E. Rep. 661. 
 
 Rep. 467. 9 Morse v. Copeland, 2 Gray (Mass.; 
 
 5 Jensen v. Hunter (Cal.), 41 Pac. Rep. 302. And see Totel v. Bonnefoy, 23 111. 
 
 14. But see Churchill v. Bauman App. 55. . 
 
 (Cal.), 30 Pac. Rep. 770, which held that 10 Peay v. Salt Lake City (Utah), 40 Pac, 
 
 the licensor must withdraw his consent Rep. 206. 
 before bringing action; see also as to 
 
663. * OPERATIONS PRELIMINARY TO CONSTRUCTION. 454 
 
 A simple agreement that one shall have the use of land held and used as 
 his own so long as he keeps a mill running is a mere license; l so is a simple 
 right to pass over land. 2 
 
 Many cases have arisen where mill privileges have been granted by parol, 
 and where attempts have been made to revoke such license after the mill and 
 dam have been erected at large expense and other improvements have been 
 made. It has been held in some cases that such a license is revocable, and 
 in others the contrary. An oral promise that if a person would erect a good 
 custom mill at a certain point he should have the privilege of flowing the land 
 so long as he would maintain the mill -was held a revocable license after 
 having been acted upon. 3 
 
 Parol agreement to allow a party to drain his land through a ditch over 
 the land of another creates a license merely which may be revoked, as by 
 damming the ditch. 4 
 
 663, Licenses held Not Revocable on Ground of Contract and Estoppel. 
 The more modern cases rather tend to the contrary rule where licensee has 
 made expensive improvements of a permanent character, so that a revocation 
 of a license would work great injury and would partake of the character of an 
 onerous or even fraudulent transaction; and equity has frequently enforced 
 the license against the landowner, and has in many cases restrained the revo- 
 cation at least until condemnation proceedings could be had. 5 These cases 
 are placed upon the principles of estoppel, because the parties cannot be 
 placed in statu quo.* 
 
 A valuable consideration may affect the revocability of a license. In the 
 cases cited those which have been held irrevocable are those which have been 
 granted for some consideration either of benefit to the licensor or some detri- 
 ment to the licensee, as in the case where the latter has made improvements 
 and invested money and could not therefore be put in statu quo. The least 
 that can be said is that there was a contract for the breach of which the 
 licensor would be liable in damages; and an undertaking on his part that the 
 licensee should be permitted to enjoy certain rights and privileges for a certain 
 valuable consideration would constitute a complete contract, which, though 
 being within the statute of frauds, 7 would at least give to the licensee an 
 equitable right to the enjoyment of the privilege, or a right to an action for 
 damages for the breach of the contract. 
 
 Encouragement alone by an upper landowner to those owning land below 
 
 1 Malcott v. Price, 109 Ind. 22. 337. See also Cronkhite v. Cronkhite, 94 
 
 2 Parish v. Kaspere, 109 Ind. 585. N. Y. 323 [1884]. 
 
 3 Johnson v. Skillman, 29 Minn. 95; 6 19 Amer. & Eng. Ency. Law 859; 
 Clute v. Carr, 20 Wis. 531. Contra, Lee 13 Amer. & Eng. Ency. Law 551. 
 
 v. McLeod, 12 Nev. 280, and also Rerick 6 Huff v. McAuley, 53 Pa. St. 206; Bal- 
 
 v. Kern (Pa.), 14 S. & R. 267; Nuna- timore, etc., Co. v. Algire, 63 Md. 319. 
 
 maker v. Columbia W.-p. Co. (S. C.), 25 7 Mumford v. Whitney, 13 Wend. 380 
 
 S. E. Rep. 751. [1836]. 
 
 4 Dunham v. Joyce (Mo.), 31 S. W. Rep. 
 
455 LICENSE, REVOCABLE AND IRREVOCABLE. 664. 
 
 him on the stream to build a mill, which would be of great public conven- 
 ience, will not operate as a license to permit the flowage of the upper riparian 
 owner's lands by water backed upon it by the dam of the mill. 1 
 
 664. License to Build Water-works and Sewers. Where a town was 
 authorized by statute to construct water-works or to contract with a water 
 company for its supply, and it had adopted the latter course and granted to a 
 corporation the right to construct water-works and to supply the town on 
 certain conditions, and where, after the water company had constructed 
 adequate water-works and was prepared to comply with its contract, the town 
 passed a resolution to construct its own water-works, it was held that, as 
 such action was taken under authority of the same statute, it was in effect an 
 act of the town itself and one which impaired the obligation of the previous 
 contract with the water company, and that it was contrary to the constitution 
 of the United States. 2 In such a case, the town having exercised its option, 
 and having contracted with a company for a water-supply has no power to 
 build water-works of its own, and hence could not enact a valid ordinance 
 for a contract with a new company to supply it and the citizens with water, 
 since it was an indirect exercise of the power to build water-works of its 
 own. 3 
 
 It seems, however, that a part of the town or city might be supplied by 
 water- works owned by the city, and the remainder by a private water 
 company. 4 
 
 Where a city council, by contract in writing, grants to an individual the 
 right to lay a sewer (for which there is great need) in certain streets, and to 
 connect the same with the premises of such adjoining lot-owners as may con- 
 tract with him therefor, the work to be done under the supervision of the city, 
 but at the expense and for the profit of the grantee, the latter acquires- a 
 vested right which cannot be revoked by the city. But after the sewer is 
 constructed the grantee may not recover damages because the city passes an 
 ordjnance prohibiting persons from connecting with any private sewers laid in 
 the streets without first obtaining permission from the council. If the grantee 
 be arrested for subsequent violation of this ordinance, an action at law for 
 damages will not lie, because the ordinance is an exercise of the city's govern- 
 mental powers. The grantee may proceed to restrain any interference with 
 his vested rights. 5 
 
 A city or village having no sewer system of its own may grant to a citizen, 
 under proper circumstances and restrictions, the right to construct a private 
 
 ^imes v. Jarrett, 26 S. C. 480. [1898]. 
 
 2 Westerly Water-works v. Town of * Welsh v. Borough of Beaver Falls 
 
 Westerly (R. I. C. C.), 75 Fed. Rep. 131. (Pa.), 40 Atl. Rep. 784 [1898]. 
 
 And see White v. Meadville (Pa.), 35 Atl. 4 Donahue v. Morgan (Colo.), 50 Pac, 
 
 Rep. 695; Carlisle Gas & W. Co. v. Car- Rep. 1038 [1897]. 
 
 lisle W. Co., 182 Pa. St. 17; Welsh v. 5 Stevens v. Muskegon (Mich.), 69 N. 
 
 Beaver Falls (Pa.), 40 Atl. Rep. 784 W. Rep. 227. 
 
665. OPERATIONS PRELIMINARY TO CONSl'RUCTION. 456 
 
 sewer at his own expense in the street, which may be used by him without 
 interference by others without his consent. The right to the exclusive use of 
 the sewer is not affected by the fact that the sewer is not upon the side of the 
 street specified in the resolution, where there is obviously a clerical error in 
 the resolution in that respect. l 
 
 Where works that have been erected and operated for a long time under a 
 franchise and agreement by which a city is to take light, heat, or power for a 
 period of years, no right to rescind for non-performance being reserved, and 
 where the works are destroyed without fault of the owner, the city must exer- 
 cise any right it may have to rescind the contract within a reasonable time, 
 and must not wait until a rescission will work a great injury to the owner of 
 the plant. If the city delay in giving notice of such rescission until the works 
 .are practically rebuilt, such rebuilding not having been unreasonably delayed, 
 it may be held to have waived its rights to terminate the contract or to repeal 
 the ordinance granting the franchise. 2 
 
 665. License to Build and Operate Railroad. Where an owner of land 
 -allows a railroad company to occupy and use it for the construction of its 
 road without remonstrance or complaint, a grant may be implied and the 
 landowner may be held to have acquiesced therein and to have waived his 
 right to dispossess the company. 3 As Chief Justice Redfield of Vermont has 
 .said : "In these great public works, the shortest period of clear acquiescence, 
 .so as to fairly lead the company to infer that the party intends to waive his 
 -claim for present payment, will be held to preclude the right to assert the 
 claim, or to stop the company in the progress of the work, and especially to 
 stop the running of the road after it has been put in operation whereby the 
 company acquires important interests in its continuance. " 4 If the owner of 
 a right of way stands by while a railroad company erects an expensive railway 
 embankment over the way, he cannot abate the obstruction until the railroad 
 company shall have a reasonable opportunity to condemn the right of way. 5 
 
 Where a railroad company enters and constructs tracks on land under a 
 mere license from the owner, it acquires no easement in the land. 6 Such 
 permission to a railroad company to enter and construct its road does not give 
 title to the right of way or estop the owner from maintaining an action for 
 ejectment, but the execution would probably be stayed until the company 
 should have had a reasonable time in which to pay for the right. 7 The owner 
 does not waive his right to damages such as would have been recovered in 
 regular condemnation proceedings unless the delay has been so long that the 
 
 1 Boyden v. Walkley (Mich.), 4 Det. L. Vt. 311. 
 
 N. 420, 71 N. W. Rep. 1099. 5 Manning v. Port Reading R. Co. (N. 
 
 2 Mills v. Osawatomie (Kan.), 53 Pac. J. Ch.), 33 Atl. Rep. 802. 
 
 Rep. 470 [1898]. 6 Minneapolis W. Ry. Co. v. Minne- 
 
 3 19 Amer. & Eng. Ency. Law 860; St. apolis & St. L. Ry. Co. (Minn.), 59 N. 
 Julian v. Morgan, etc., R. Co., 35 La. W. Rep. 983. 
 
 Ann. 924. 7 Conger v. Burlington, etc., R. Co., 
 
 4 McAulay v. Western Vt. R. Co., 33 41 la. 419. 
 
457 LICENSE, REVOCABLE AND IRREVOCABLE. 
 
 right is lost by the statute of limitations. 1 A parol license to a railroad com- 
 pany to use a right of way cannot be revoked after the expenditure of money 
 for the completion of the road and after its operation for fourteen years, nor 
 can one claiming under the licensor. 2 
 
 A license to make a roadway is exhausted by the first one built, and the 
 licensee cannot substitute a solid roadway for one originally built by him on 
 piles. 3 
 
 666. Party-walls, Stairways, and Passageways etc. A license to use the 
 wall of a house as a party-wall in consideration that the licensee would erect 
 a brick house instead of a frame one was held irrevocable after the house had 
 been built. 4 But an agreement that if a man's neighbor would deed two extra 
 feet of ground he would put a stairway wholly in his building, and allow it 
 to be used by the neighbors, tenants of the upper stories, may be abrogated 
 and the use of such stairway refused even though the tenants have used it for 
 several years, in the absence of evidence that money had been expended or 
 improvements made on the strength of the license. 5 
 
 A parol license to float spars on a stream for a valuable consideration 
 cannot be revoked after the grantee has acted upon it. 6 Parol grants of a 
 right of way for a valuable consideration followed by use for sixteen years (the 
 statutory period) may not be revoked. 7 A license granted by a city to erect 
 an awning over the sidewalk may not needlessly be revoked until the licensee 
 has enjoyed it sufficiently for his outlay. 8 
 
 667. License of Purchaser to Enter and Take. Ordinarily the purchase 
 of materials or structures located upon land carries with it a license to enter 
 and take and carry away such materials and structures in the way and after 
 the manner contemplated by the parties. Such materials are standing timber, 
 sand, clay, stone and other minerals, including gas and oil. 
 
 A purchaser of standing timber, who had paid in full therefor and who had 
 two years in which to remove it, was given by the seller a parol extension of 
 two years more, and it was held that such extension could not be revoked by 
 the seller or his grantee with notice. 9 
 
 There is little doubt but that the licensee would have the right to enter 
 upon the land and take such timber as he had already cut without being liable 
 to an action for trespass. 10 Such a license to enter upon the land cannot be 
 countermanded after it has been acted upon. n According to the Massa- 
 
 1 iq Amer. &. Eng. Ency. Law 860, 6 Rhoades v. Otis, 33 Ala. 578. 
 861, and cases cited; G. H. & S. A, R. Co. 7 Nowlin v. Whippel, 79 Ala. 481. 
 
 v. Pfuffer, 56 Tex. 66 [1881]. 8 City Council of Augusta v. Burim 
 
 2 Campbell v. Indianapolis, etc., R. (Ga.), 19 S. E. Rep. 820. 
 
 Co., no Ind. 490. See also Buchanan v. 9 Williams v. Flood, 63 Mich. 487. 
 
 Logansport, etc., R. Co., 71 Ind. 265. 10 Claflin v. Carpenter (Mass.), 4 Met. 
 
 'Trustees v. Jessup (Sup.), 42 N. Y. 580. 
 
 Supp. 4. n Claflin z/.Carpenter, supra; Nettleton 
 
 4 Russell v. Hubbard, 59 111. 335. v. Sikes (Mass.), 8 Met. 34; Nelson v. 
 
 5 Baldwin v. Taylor (Pa. Sup.), 31 All. Nelson (Mass.), 3 Gray 85; Douglass v. 
 Rep. 250. See Joseph v. Wild (Ind. Sup.), Shumway (Mass.), 13 Gray 498. 
 
 45 N. E. Rep. 467. 
 
668. OPERATIONS PRELIMINARY TO CONSTRUCTION. 458 
 
 chusetts cases cited it seems that the owner may revoke the license in regard 
 to timber standing, but that he may not revoke the license with regard to 
 timber which has been cut. 1 
 
 An oral sale of a frarne building with a right to remove it was held to 
 create an irrevocable license to enter and remove the building. A grant of 
 an exclusive privilege to take wild fowl on the lakes, sloughs, and waters of 
 the grantor, with the privilege of ingress and egress for the purpose, was held 
 a grant of a profit a prendre. 2 
 
 A license to hunt at pleasure on the land of the licensor was held a justifi- 
 cation for the entry of the servant and companion of the licensee. 3 
 
 668, License the Subject of Transfer. It seems that a license may be the 
 subject of a transfer, and that an assignment of a license will be upheld. 
 Thus where a licensee constructed a dock on lands belonging to the state, 
 under license issued by the superintendent of public works, and afterwards 
 assigned the license and transferred his interest in the dock, it was held that 
 he was estopped from denying his right to make such assignment and transfer 
 in an action brought by his vendees to enjoin the unlawful use of the dock. 4 
 This right seems, however, to be denied where the license partakes of a per- 
 sonal character or preferment. Permission to erect a house and to occupy it 
 without molestation so long as the licensee thought fit or his convenience 
 might require was held a power which could not be transferred to a third 
 person even after the house had been built. 5 
 
 669. Revocation of License. When structures or works which have been 
 erected by license upon another's land are destroyed by the elements, the 
 licensor may then revoke the license and extinguish the right. This was so 
 held when an aqueduct went to decay and became unserviceable. 6 
 
 If the owner of land appropriates it to uses which are inconsistent with 
 the enjoyment of the license which he has granted, or if he, by other acts, 
 indicates an intention to revoke the license, such acts will effect a revocation. 7 
 The locking of a gate through which a person has had a license to pass is a 
 revocation of the license. The commencement of an action for damages may 
 constitute a revocation, and a license of a partnership is revoked by the dis- 
 solution of the partnership. 8 A mere parol license, not founded upon a 
 valuable consideration, permitting water to flow from a gutter onto an 
 
 1 Giles v. Simonds (Mass.), 15 Gray 418. And see other cases, 13 Amer. & 
 
 441; Burton v. Scherpf (Mass.), i Allen Eng. Ency. Law 556. 
 
 135. 6 Allen v. Fisk, 42 Vt. 462. And see 
 
 2 Brigham v. Salene, 15 Oreg. 208. also Veghte v. Raritan Water-power Co. 
 
 3 Muskett v. Hill, 5 Bing. N. .694; (N. J.), 4 C. E Greene 142-159; Morse v. 
 
 Wickham v. Hawker, 7 Mees. & W. 63; Copeland (Mass.), 2 Gray 302; Totel v. 
 
 Doe v. Wood, 2 Barn. & Aid. 724. Bonnefoy, 23 111. App. 55. 
 
 *Ziegele v. Richelieu & O. Nav. Co. 7 Simpson v. Wright, 21 111. App. 67. 
 
 (Sup.), 38 N. Y. Supp. 1022. 8 I3 Amer. & Eng. Ency. Law 557. 
 
 6 Jackson v. Babcock (N. Y.), 4 Johns. 
 
459 LICENSE, REVOCABLE AND IRREVOCABLE. 669. 
 
 adjacent building, is revoked by the conveyance of the adjoining building, 
 without further notice. 1 
 
 When the license granted is of an executory nature and the servient land 
 has been conveyed to another, such conveyance works a revocation of the 
 license; but if the license has already been executed, it does not affect the 
 rights of the parties concerned. Cases of executory licenses of the class 
 named are those where the person has been granted a license to go upon land 
 for the purpose of cutting and taking timber. In case of an oral license for 
 a valuable consideration to cut, within a certain time, the trees standing upon 
 land which is afterwards conveyed by an absolute deed to a third person, the 
 act of conveyance revokes the license to take the timber that is uncut. 2 
 
 1 Winn v. Ulster Co. Sav. Inst. (N. Y.), Cook v. Stearns, n Mass. 533; Jenkins v. 
 37 Hun 349. Sykes, 19 Fla. 148; Coleman v. Foster, I 
 
 2 Drake v. Wells (Mass.), n Allen 141; H. N. 37- 
 
CHAPTER XXXIV. 
 PRESCRIPTION AND PRESCRIPTIVE RIGHTS. 
 
 671. Importance of Easements in Engineering and Architectural Opera- 
 tions. Every project or undertaking in engineering requires the acquisition 
 and appropriation of property, and the assuming of the burdens incident to 
 property. It comprises the erection and maintenance of a new structure, and 
 therefore a change in existing conditions and circumstances. If an important 
 undertaking, it may change the surroundings, the value and character of 
 property in the vicinity, and the uses and purposes for which it may be 
 employed; it may divert the course of trade and traffic, it may be a blessing 
 to the community, or it may prove an intolerable nuisance. Injuries and 
 resulting damages are a certain consequence of every engineering work, and a 
 successful engineer must know what constitutes actionable injuries, and must, 
 if possible, avoid them. The direct injuries to abutting property and estates 
 are usually apparent to a cautious and observing engineer and may be guarded 
 against; but there are other injuries none the less troublesome and frequently 
 more fatal to the rapid progress and completion of works. They are injuries 
 to incorporeal rights, invisible, unobserved, unrecorded, sometimes ancient 
 and far-distant rights that suddenly issue from obscurity in the shape of an 
 exorbitant and extortionate demand, or of a threatened injunction on account 
 of some unthought-of injury. A knowledge of these rights and the anticipa- 
 tion of their infringement would reasonably be expected of the engineer or 
 architect more than from an attorney who frequently ends his labors with an 
 exhausting search of paper titles in the registry office. The engineer's or 
 architect's experience enables him to anticipate future complication the result 
 of installation and operation of works, and to secure to the project privileges 
 and rights that may be the subject of expensive litigation. He knows the 
 effects that result from the use of fuel, steam, electricity, and the conditions 
 that attend the manufacture or use of gas, oil, chemicals, and other explosive 
 agents. 
 
 Many of these rights are incorporeal, and some are not ; but even those that 
 are corporeal have many of the incidents belonging to easements, and they 
 may therefore all be considered together. The right of an owner of land to 
 the natural flow and a reasonable or proportional use of water, light, and air 
 
 460 
 
46 1 PRESCRIPTION AND PRESCRIPTIVE RIGHTS. 6/3. 
 
 is a natural corporeal right incident to property. If any one prevents their 
 natural flow or destroys their native purity, he is transgressing the rights of 
 every landowner through or against whose land they would pass. These 
 rights are separable from the land and may be conveyed by or reserved from * 
 grant, or acquired by prescription. It is with the latter that we have here to 
 deal. What may be said of ways will in general apply to waterways, whether 
 a stream, a canal, a drain, or a sewer. 
 
 672. Easements Acquired by Prescription. These rights are frequently 
 acquired by prescription, which is closely allied and in many respects similar 
 to the law of limitation. Prescription strictly applies only to incorporeal 
 rights; while adverse possession is confined to corporeal property. Both 
 are generally governed by the same law in this country the law of limita- 
 tions. There are few prescription acts in America. The whole doctrine of 
 prescription, like that of adverse possession, is founded upon public policy. 
 It is a matter of public interest that title to property should not long remain 
 uncertain and in dispute. The doctrine of prescription conduces in this, 
 respect to the interests of society, and at the same time is promotive of pri- 
 vate justice by putting an end and fixing a limit to contention and strife. 
 Strictly the statute of limitations, which governs adverse possession, does not 
 apply to these incorporeal rights; but it has become universally settled that 
 an uninterrupted use of a way or other easement, under a claim of right for 
 the period fixed by the statute of limitations as a bar to the recovery of lands 
 held adversely, gives the person so using it a full and absolute right to such 
 easement as much as if it were granted to him. 1 If an adverse possession for 
 the statutory period of limitations will give a possessory title to the land itself, 
 it seems to be only reasonable that it should afford a right to a minor interest 
 arising out of the land. 3 
 
 673. Differences between Prescription and Limitations. There is this 
 difference between the statutes of limitations and the law of prescription. 
 The statutes of limitations declare that if the owner has not had possession 
 during a certain period, he is barred from entering and can have no action 
 against the one in possession; in prescription the claimant must have had the 
 use and enjoyment for the full period in order to have any claims to a con- 
 tinued enjoyment. He is then held to be entitled to the use of the easement 
 as a matter of right, as if holding under a grant which, though implied, will be 
 upheld unless the presumption in its favor be rebutted. In adverse possession 
 the owner is refused the protection of the courts, as having lost his rights; in 
 prescription the one who has acquired the rights may enforce them by the 
 assistance of the courts. In this country it amounts to the same thing, for the 
 owner will succeed as against the trespasser who has not had open, adverse, 
 and continuous possession for the full period, because his paper title is con- 
 structive possession. 
 
 1 Tracy v. Atherton, 36 Vt. 503. a 3 Stark Ev. 1215. 
 
6/5- OPERATIONS PRELIMINARY TO CONSTRUCTION. 462 
 
 In the ordinary transactions of mankind men are not disposed to allow 
 others to exercise dominion over their property. When, therefore, such 
 dominion has been exercised for a long period without objection on the part 
 of the owner, it is reasonable to conclude that such use began in right or 
 there would have been objection. On this ground the doctrine of prescription 
 rests. It is purely a legal fiction. The doctrine proceeds wholly upon the 
 ground of presuming a right after such length of enjoyment, and not upon the 
 ground that a grant was made, which has been lost. The undisturbed enjoy- 
 ment for the full period imposes a duty upon the jury to presume a grant, and 
 they will be so instructed by the court. Not that either the court or the jury 
 believe there ever was a grant, but because public policy and convenience 
 require that long-continued possession and enjoyment should not be dis- 
 turbed. l 
 
 674. Presumption after Use for Statutory Period Not Easily Rebutted, 
 An owner cannot overcome this presumption of right arising from an 
 uninterrupted user for the statutory period by proof that in fact no grant was 
 ever made. The case is not varied though it be shown ever so clearly. 2 The 
 presumption is so strong that, if unrebutted, it becomes a presumption of law, 
 and is such conclusive evidence as to warrant the court in holding that it con- 
 fers a right on the possessor to the full extent of his user. 1 An owner may 
 rebut the presumption by contradicting or explaining the facts upon which it 
 rests; he may show that the right claimed could not have been granted away, 
 or that the owner was incapable of making such a grant. He may explain 
 the user or enjoyment by showing that it was made under permission asked 
 and given, or that it was secret, or that the user was such as to be neither 
 physically capable of prevention nor actionable. 3 
 
 By analogy the courts have made the law of prescription conform in all 
 substantial particulars, and in so far as the differences in the subjects will 
 allow, to the statute of limitations applicable to lands. 4 It may be laid down 
 as a general rule that the use and enjoyment of an easement or incorporeal 
 right affecting the lands of another for the local statutory period is sufficient 
 to establish a good right and title by prescription. 5 The use and enjoyment 
 necessary to acquire an easement by prescription is the same as is required to 
 give the title under the statute of limitations. A prescriptive right once 
 acquired is absolute, and cannot be lost or prejudiced by any acknowledg- 
 ment on the part of the possessor. 6 
 
 675. The Use should be by Acquiescence and Not by Force. The use 
 must be open, adverse, under claim of right, exclusive, continuous, and 
 
 1 Tracy v. Atherton, 36 Vt. 503. * Poland, Ch. J., Tracy v. Atherton, 36 
 
 2 Lehigh V. Ry. Co. v. McFarlan, 43 Vt. 503. 
 
 N. J. Law 605; Tracy v. Atherton, 36 5 Parker v. Foote, 19 Wend. 309. 
 
 Vt. 503. 6 Weed v. Keenan (Vt.). 13 Atl. Rep. 
 
 'Lehigh V. Ry. Co. v. McFarlan, 43 804 [1888]; Hathorn v. Kelly, 86 Me. 
 N. J. Law 605. 487- 
 
463 PRESCRIPTION AND PRESCRIPTIVE RIGHTS. 676. 
 
 uninterrupted. 1 To these sometimes are added the further qualifications that 
 it must be by acquiescence and not by force. Acquiescence as here used is 
 understood to mean that there was knowledge and that there has been no 
 interruption. If the owner does not interrupt the enjoyment in any way, he 
 does acquiesce so far as is needful in order to make the possession effectual 
 against him. 2 
 
 What is understood by force requires no explanation, but what degree of 
 contention or warfare will deprive the claimant of his right is an extremely 
 difficult question. Contention being a usual consequence of interruption, it 
 will perhaps be appropriately discussed in connection with that subject.* 
 
 When one has proved use by the plaintiff and the general public of g 
 passageway over land for forty years, the burden is on the defendant to show 
 that the use was permissive merely. 3 
 
 676. The Prescriptive Use must be Open and Adverse and Not Inter- 
 rupted. \ The general interpretation of the words "open, adverse, under clainv 
 of right," is practically the same as in adverse possession. The use or enjoy- 
 ment must not be in secret or by stealth ; it must not be by leave, favor, o\ 
 license, but under claim or assertion of right. It must not be by force, noi 
 be interrupted for the full period of limitation. 4 There must be neither legal 
 incompetence nor physical incapacity; and finally, the enjoyment or use 
 must be such a burden or injury to the servient estate as to be actionable and 
 capable of being prevented by the owner. If these conditions are claimed 
 and proved by the person claiming the easement, his right to the continued 
 enjoyment of the same rights cannot be defeated. 
 
 Two things are inseparable incidents, viz., possession or user and lime. 
 The user must be long, continuous, and peaceable; long, that is, during the 
 time prescribed by law; continuous, that is, it must not have been interrupted 
 according to the lawful meaning of the word; peaceable, because if it be con- 
 tentious, and the opposition be on good grounds, the party will be in the same 
 position as at the beginning of his use. 5 
 
 The use must be open and notorious. In a recent case it was held that 
 the fact that a building stood partly upon another's land and overhung it so 
 that the water from the eaves dropped upon it was not patent to the owner, 
 and therefore no easement had been acquired by adverse user. 6 J A prescrip- 
 tive right to have water drop from one's eaves upon another's land is not de- 
 stroyed by raising the roof so that the eaves are higher from the ground, in the 
 absence of proof that the burden has been increased. 7 The signs of the servi- 
 
 1 Tracy v. Atherton, 36 Vt. 503. 5 Lehigh Valley R. R. Co. v. McFarlan, 
 
 2 Tracy v. Atherton, 36 Vt. 503; Rich- 43 N. J. Law 605. 
 
 ard v. Hupp(CaL), 37 Pac. Rep. 920. 6 Reiner v. Young (N. Y.), 16 N. E. 
 
 3 Burch v. Blair (Ky.), 41 S. W. Rep. Rep. 368 [1888]. 
 
 547. 7 Harvey v. Walters; L. R. 8 C. P. Cas. 
 
 * Parker v. Foote, 19 Wend. 309; 162 [1872]. 
 Vaughan v. Rupple, 69 Mo. App. 583. 
 
 * See Sees. 529-531, supra. \ See Sees. 515-525, supra. 
 
 \ See Sec. 183, supra. 
 
678. OPERATIONS PRELIMINARY TO CONSTRUCTION. 464 
 
 tilde, the marks of the burden, should be open and visible. 1 * 
 
 677. The Use Must Not be Interrupted. To constitute interruption, the 
 law requires some obstruction to the use of the easement, some act of inter- 
 ference with its enjoyment, which if unjustified would be an actionable wrong 
 and sufficient cause for the claimant to come into court. Mere denials of 
 right, complaints, remonstrances, prohibitions, and threats will not be con- 
 sidered as interruptions of the user, or indicate that the enjoyment of it was 
 contentious; there must be an actual interruption or obstruction of the 
 enjoyment. If the owner interrupt the enjoyment of the easement and the 
 one claiming it really has any right to it, he should assert it by an action at 
 law; and if he chooses to postpone his action until witnesses are dead and 
 the facts have faded from recollection, he has only himself to blame. 
 
 To acquire a right of way over lands by prescription the use must have 
 been adverse for the full statutory period. 2 The use must be continuous for 
 the full statutory period or longer to create an easement of a right of way, 3 or 
 of drainage in a ditch, 4 or of a bridge over a canal. 5 
 
 678. What will Amount to an Interruption. Mere protests and denials 
 by the owner do not interrupt an adverse user because they give the claimant 
 no right to sue and establish his right. If protests and remonstrances could 
 deprive one of his continuous and adverse enjoyment, he could neither assert 
 his right by an action at law, nor have the advantage accorded him by the 
 aw as consequent to such enjoyment. Protests and remonstrances by the 
 owner against the use of the easement rather add strength to the claim of a 
 prescriptive right, for a holding in defiance of such expostulations is demon- 
 strative proof that the enjoyment is under a claim of right, and is hostile and 
 adverse; and if they be not accompanied by acts amounting to a disturbance 
 of the right in a legal sense, they are no interruption or obstruction of the 
 enjoyment. 6 
 
 What degree of force by the owner and counter-resistance by the claimant 
 must be exercised to make an enjoyment contentious or by force must depend 
 upon the particular circumstances of each case. It seems that there must be 
 a pronounced determination on the part of the owner to interrupt the enjoy, 
 ment, and that little short of violence will accomplish it. If the owner has 
 not sought the protection of the courts, but has relied upon himself to inter- 
 
 1 Griffiths v. Morrison, 106 N. Y. 165; 5 Tytus Gardner Paper Co. v. Middle- 
 Rogers v. Sinsheimer, 50 N. Y. 646. town Hyd. Co., 15 Ohio Cir. Ct. Rep. 
 
 a Prewitt v. Graves (Ky.), 35 S. W. 118. 
 
 Rep. 263; Young v. Conrad (Ky.), 38 S. 6 Lehigh V. Ry. Co. v. McFarlan, 43 
 
 W. Rep. 497; Gatewood v. Cooper (Ky.), N. J. Law 605. Accord, Okeson v. Pat- 
 
 38 S. W. Rep. 690. terson, 29 Pa. St. 22 [1857]; Jordan v. 
 
 3 Chicago v. Howes, 169* 111. 260; Lang, 22 S. C. 159 [1884]; Connor v. 
 
 Bushey v. Sautiff (Sup.), 33 N. Y. Supp. Sullivan, 40 Conn. 26 [1873]. Contra^ 
 
 473. Chicago & N. W. R. Co. v. Hoag, 90 111. 
 
 *Wilkins v. Nicolai, 74 N. W. Rep. 339 [1878]. 
 103. 
 
 * See Sec. 183, supra. 
 
465 PRESCRIPTION AND PRESCRIPTIVE RIGHTS. 6bO. 
 
 nipt the adverse use and has failed, he must show an endeavor to repel and 
 expel the claimant by violence, and if unsuccessful he must show a continued 
 diligence and persistence. There must be force, strife, violence, and if the 
 owner fails by these to effect an interruption, he should appeal to the courts. 
 It cannot be said with certainty that perpetual warfare even will relieve the 
 servient estate from the burden of the easement if no actual interruption has 
 been accomplished. This seems to be the doctrine of the English cases, 
 where peacefulness and acquiescence are used indifferently as equivalent to 
 non-interruption. 
 
 679. Instances of Interruption. A few illustrations will serve to give a 
 better idea of the law as to easements acquired by adverse use and enjoyment. 
 Some in respect to rights of way are the following: A sign notice " No tres- 
 passing " will have no effect to interrupt or deprive the claimant of the benefit 
 of his enjoyment. Mere temporary obstructions due to erecting a house, but 
 with no intention of stopping the way, which is subsequently repaired and 
 reopened, will not amount to an interruption. Whether what occurs at the 
 time an interruption is attempted amounts to an interruption depends upon 
 circumstances, upon the conduct of the party when forbidden to enter or 
 when ordered away. If the claimant when ordered away or threatened with 
 expulsion deserts or withdraws, on a well-grounded apprehension that the 
 owner means to enforce obedience to his commands, an action for disturbance 
 will lie. He should therefore bring such action and be put in possession of 
 the enjoyment of his rights. If he does not, it is evident that he has no such 
 right and it amounts to an interruption. If the trespasser turns back when 
 threatened, he may be said to have yielded and to have forfeited his rights 
 acquired by adverse enjoyment up to that time. His adverse use has been 
 relinquished, and he has acknowledged the owner's superior right. The user 
 begins anew and must be adversely and continuously enjoyed for the full 
 period from the interruption, and without subsequent hindrance. 
 
 680. Method or Means of Interruption. The manner of obstruction does 
 not matter; if a house be placed over the way, or a board, or a wire even be 
 placed with an intention to obstruct the way, and it does successfully inter- 
 rupt the use of it, it is sufficient. For this reason one sometimes meets 
 obstruction in streets of cities where private streets are fenced to prevent the 
 public from acquiring rights over them. This is a common occurrence in 
 Massachusetts. The obstruction need remain but a few days, long enough 
 to amount to an assertion of the owner's dominion over the street, and to 
 give the city, or the public, or the individual good cause for an action at law. 
 With this end in view, it is the practice of large corporations and universities 
 to build fences or to otherwise obstruct certain avenues and streets in order 
 to maintain their control over them. If the encroachment by the public has 
 been casual and without claim of right, the owner may move his fence to the 
 
68 1. OPERATIONS PRELIMINARY TO CONSTRUCTION. 466 
 
 boundary-line of the highway when the encroachment is brought to his 
 notice. 1 
 
 681. Prescriptive Rights Limited to the Prescriptive Use. To obtain a 
 prescriptive right, the enjoyment must have been the same as the right which 
 is claimed, and of the same object, throughout the whole period. The adverse 
 user of a way must have been continuously over the same route; it must have 
 been a burden upon the same portion or part of the servient property; the 
 enjoyment must have been for the same purposes and to the same extent; and 
 when acquired the right is still limited to the extent of the enjoyment exer- 
 cised at the beginning. No greater burdens can be claimed than the continued 
 user has created. Prescriptive rights when acquired are confined to the extent 
 and purposes employed to acquire them. Therefore the acquisition of a right 
 of way from a house on one tract of land over another tract will not entitle 
 the person to move his house upon an adjoining estate and claim his right of 
 way over the servient estate from the new location of his house. 2 He is a 
 trespasser if he attempt to use the right of way from the new site. He can 
 come to the original site of his house, and make a new departure over the 
 servient estate, but the burdens must not be increased. 
 
 The same principle applies if he has bought adjoining property for a 
 garden. He may not draw the produce from the garden over the servient 
 estate directly without being a trespasser, but he may bring vegetables to his 
 house, load them into wagons, thus making a new point of departure, which 
 is within his prescriptive right. 3 Hay grown upon an adjoining farm but 
 stacked upon the estate to which a right of way was appurtenant can be 
 carried over the servient estate, since the use was from the dominant estate 
 over the subordinate estate. 4 The use of a right of way to a woodhouse or 
 well cannot be continued and converted into a way to a dwelling-house when 
 the woodhouse is converted into a cottage or dwelling-house. 5 Nor can a 
 way for horses, carts, and carriages be made a right of way for all purposes. 
 The extent of the right is a question for the jury, under all the circumstances 
 of the case. 6 A use acquired for all purposes for which a road was wanted at 
 the time does not establish a right of way for all purposes in an altered con- 
 dition of the property which would impose a greater burden on the servient 
 estate. 
 
 Whether the use is within the rights acquired is a question for a jury, and 
 may therefore vary. 7 Thus where a person has a right of way from one of his 
 lots to another across another man's fields, and, instead of going entirely 
 
 1 The State v. Schilb, 47 la. 611. [1867]. 
 
 2 Skull v. Glenister, 16 C. B. (N. S.) 5 Allan v. Gomme, n A. & E. 759. 
 
 81 [1862]; Williams v. James, L. R. 2 6 Cowling v. Higginson, 4 M. & W. 
 
 C. P. 577 [1867]. 245. 
 
 8 Hoyt v. Kennedy (Mass.), 48 N. E. 7 Skull v. Glenister, i6C. B. (N. S.) 81 
 
 Rep. 1073 [1898]. [1862]; Koons v. McNamee, 6 Pa. Super. 
 
 * Williams v. James, L. R. 2 C. P. 577 Ct. 445. 
 
467 PRESCRIPTION AND PRESCRIPTIVE RIGHTS. 68 1. 
 
 across the servient estate to his own lot, he takes a public road which his 
 right of way crosses, and goes to town, it has been held that he is not liable 
 to an action of trespass, although the right of way is to the other lot and not 
 to the highway. 1 This establishes the principle that the dominant owner may 
 decrease the burdens of the servient estate though he may not increase them. 
 Where a man purchased an adjoining estate with an appurtenant way over a 
 third party's land and drew building materials over the way to the estate 
 bought, but which were eventually used for a house upon his original land, it 
 was held to be a question for the jury to decide whether the use was a bona fide 
 exercise of the right of way or a mere colorable mode of getting to his own 
 estate. 2 Likewise a use for ordinary agricultural purposes does not establish 
 a right of way for carting materials to build a number of new houses. The 
 burdens must not be increased or the nature of the use changed. 3 
 
 In the case of a dam, the easement acquired is not the right of maintain- 
 ing a dam or structure upon the land of the party himself, but the right to 
 flow back the water on the land of his neighbor. His neighbor has no right 
 of action for the mere building of the dam, unless it throws the water back 
 upon his land; his suffering it is no acquiescence in anything from which a 
 grant or permission can be presumed. 
 
 No one is bound to measure the dam of an adjoining proprietor and 
 employ an engineer to calculate whether, if kept tight, it will flood his land. 
 Where it does and he permits it for twenty years, a grant will be presumed, 
 but this only to the extent to which his land was habitually or usually over- 
 flowed. 4 
 
 Where a dam is a permanent structure it is not necessary that the water 
 confined by it should be maintained at the highest level, nor that the dam 
 should always be kept in perfect repair. It is the height of the water ordi- 
 narily behind the dam, when kept in repair as dams are kept for profitable and 
 economical use, that will fix the height acquired by prescription. If a dam is 
 permitted for one or more years to be out of repair, so as to injure the land 
 above it, that time will not be counted in the prescription; the prescription is, 
 interrupted and must commence anew. This rule applies only to such dams 
 as are permanent and to such gates and movable parts as are constantly used 
 and kept in their places to raise the height of the water. Boards or gates that 
 are used only at intervals and in seasons, of low water, so as to increase the 
 water in the mill-pond, without overflowing the lands above, cannot gain the 
 right to keep the dam at the height to which they raise it, if that will make 
 the level of the water upon the lands of the upper proprietor higher than has 
 been maintained for the period of twenty years. 
 
 1 Colchester v. Roberts, 4 M. & W. 769. Ch. D. 362. 
 
 2 Skull v. Glenister, 16 C. B. (N. S.) 81 4 Carlisle v. Cooper, 10 N. J. Eq. 256 
 [1862]. [1868]. 
 
 I Wimbledon Conservators v. Dixon, i 
 
682. OPERATIONS PRELIMINARY TO CONSTRUCTION. 468 
 
 When an easement to flow water is claimed by adverse enjoyment, the 
 whole burden of proof is on the claimant. x 
 
 Where a person has adversely used a wooden drain across another's lot, 
 the laying by him of an earthen drain inside thereof does not interrupt the 
 running of the statute of limitations in favor of his easement therein. The 
 fact that the earthen pipe was laid at the joint expense of the owners of 
 the servient and of the dominant estates does not, as a matter of law, prevent 
 the use of it by the latter from being adverse. The fact that during part of 
 such adverse user he used it for the drainage of additional waters does not 
 affect his prescriptive right to its use for ordinary purposes. 2 
 
 Where a railroad company takes possession of the real estate of another 
 for a right of way without color of title, its rights acquired by prescription 
 are limited to the land actually occupied, as there is no presumption that it 
 appropriated a strip of the usual width, or all that the statute allows it to take 
 for that purpose. 3 
 
 682. Prescriptive Rights against the State or the Public.* At common 
 law there could be no prescriptive right acquired against the crown, and the 
 same principle applies to adverse possession. Adverse possession cannot be 
 held against the United States, or against a state, unless the statute expressly 
 includes the state in its operations. States having such statutes are 
 Alabama, Arizona, Dakota, Kansas, Maryland, Nevada, New York, Pennsyl- 
 vania, South Carolina, and Utah. The public are protected from the action 
 of the statutes, and, generally speaking, adverse possession does not give title 
 to property against the public. Therefore, whether a highway, a park, or a 
 navigable stream be regarded as belonging to the government or to the 
 public, a person can gain no title or adverse claim by encroachments upon 
 such public properties. Such encroachments by private parties may be 
 removed by the government or town authorities. There has been much con- 
 flict in the courts as to how far to apply the doctrine of public interests to 
 property belonging to municipal corporations and as to whether to regard 
 their streets and parks as private property or as being vested in the public. 
 
 If the claim by adverse possession is one against public interests, the best 
 of reasons exist that it should not be permitted. Every member of a com- 
 munity should be interested in preserving the public interests, and no one 
 person can properly be allowed to appropriate the property of the public. 
 
 Nevertheless we find that many of the states give the right of adverse 
 possession to individuals against municipal corporations. Connecticut, 
 Illinois, Iowa, Kentucky, Maryland, Massachusetts, Mississippi, Missouri, 
 
 Carlisle v. Cooper, 19 N. J. Eq. 25 N. E. R'ep. 197. 
 
 [7868]; A. P. Cook Co. v. Beard (Mich.), 'Omaha & R. V. Ry. Co v. Richards 
 
 65 N. W. Rep. 518. (Neb.), 57 N. W. Rep. 739; Ryan v. M. V. 
 
 *Shaughnessey v. Leary (Mass.), 38 & S I. R. Co., 62 Miss. 162 [1884]. 
 
 * See Sec. 534, supra. 
 
469 PRESCRIPTION AND PRESCRIPTIVE RIGHTS. 683. 
 
 North Carolina, New York, Ohio, South Carolina, Texas, Vermont and Vir- 
 ginia are among those granting such adverse claims. California, Indiana, 
 Louisiana, New Jersey, Pennsylvania and Rhode Island hold to the contrary 
 rule. 
 
 While the title to public land is still in the United States no adverse 
 possession of it can, under a state statute of limitations, confer a title which 
 will prevail in an action of ejectment in the courts of the United States against 
 the legal title under a patent from the United States. 1 
 
 It being a rule of property in California that title cannot be acquired to 
 public property by adverse possession, the right of a city to open up a street 
 once dedicated and accepted is not impaired by the fact that it has been fenced 
 for about forty years, and occupied as a residence the greater part of the time, 
 and that valuable buildings have been erected upon it. 2 
 
 683. Prescriptive Rights Acquired by the Public in Ways. There is 
 some question whether mere user by the public of a way can make it a public 
 highway, without any action of the town authorities, such as laying out, 
 recording, improving, or accepting it. It is certain, however, that any use 
 for a period less than that required by the statute of limitations will not estab- 
 lish it as a highway. 3 
 
 To establish a highway by prescription there must be a user by the public, 
 under claim of right, and adverse to the owner's occupancy, and with his 
 knowledge, of some denned track uninterruptedly, without substantial change, 
 for a period sufficient to bar an action to recover the land. 4 
 
 The use for hunting purposes of streams terminating in private lands 
 creates no right in the public when the lands have not been staked nor such 
 trespasses forbidden. 5 
 
 Permission to residents and visitors to pass over land to visit a beach does 
 not of itself constitute such user as will make a highway by prescription. 
 To constitute a highway by prescription, user must be adverse to the owner. 6 
 It is necessary that the public authorities take possession of the road, use, 
 improve, and maintain it for the statutory period, to give it public character. 7 
 
 If the use is shown to have been enjoyed for the full period, and the 
 owner claims it was by license, the burden is upon him to show that the use 
 was by permission and not adverse. The fact that the owner uses the same 
 way does not lessen the claimant's right. 8 A contrary rule is held in Cali- 
 
 1 Redfield v. Parks, 132 U. S. 239 [1889]. Rep. 560. 
 
 2 London & San Francisco Bank v. City 6 Chisolm v. Cains (C. C.), 67 Fed. Rep. 
 of Oakland (C. C.), 86 Fed. Rep. 30 285. 
 
 [1898]. 6 Coburn v. San Mateo County (C. C. 
 
 3 Coakleyz/. Boston, etc., R. Co. (Mass.), N. D. Cal.), 75 Fed. Rep. 520. 
 
 33 N. E. Rep. 930; State v. Wolfe (N. C.), T State v. Horn (Kans.), 12 Pac. Rep. 
 
 17 S. E. Rep. 528; In re a bridge, 100 148 [1887]; Leonard v. Detroit (Mich.), 66 
 
 N. Y. 642 [1885]; Cunningham v. San N. W. Rep. 488. 
 
 Saba Co. (Tex.), 20 S. W. Rep. 941. 8 Wengerz>. Hippie (Pa.), 13 All. Rep. 
 
 *Engle v. Hunt (Neb.), 69 N. W. Rep. 81 [1888]. 
 070; Topeka v. Cowee (Kans.), 29 Pac. 
 
683. OPERATIONS PRELIMINARY TO CONSTRUCTION. 4/O 
 
 fornia, where the fact that a strip of land has been continuously traveled and 
 used by the general public as a highway for twenty years, with the knowledge 
 of the owner of the fee, and without objection by him, does not justify a find- 
 ing that the strip "is a public highway," since such facts are consistent with 
 an absence of intention to dedicate and may indicate merely a license. 1 
 Under revised statutes of Indiana, providing that when a way has been used 
 by the public for twenty years, it shall be deemed a public highway, the 
 uninterrupted use of a road for such time, whether with the -owner's consent 
 or against his objection, constitutes it a public highway. 2 
 
 Laws of New York 1890, c. 568, 100 (General Highway Law) provides 
 that " all roads which shall have been used by the public as a highway for a 
 period of twenty years or more shall be a highway with the same force and 
 effect as if it had been duly laid out and recorded. " This law is of the same 
 purport and meaning as the former statute, which provided that "all roads 
 not recorded which have been or shall have been used as a public highway for 
 twenty years or more shall be deemed public highways "; and use of a road 
 by the public as a highway is necessary to create a highway by prescription.* 
 Where plaintiff's grantor, more than fifty years ago secured from the state by 
 petition, a grant authorizing the extension of a boat-landing on his land for 
 " public convenience," which necessitated the use of a certain road from the 
 boat-landing to the highway, and the road has ever since been used by the 
 public, such road has become a public highway by long user. 4 
 
 In Illinois, where a highway was laid out by the town authorities, and the 
 landowners erected fences so as to make the highway forty feet further east 
 than as laid out, and the public used the highway as so fenced for more than 
 twenty years, the right of the landowners to fence in the forty-foot strip is 
 barred by prescription. 5 
 
 To what extent the public may acquire a prescriptive right of way over 
 land depends in a measure upon the character of the land, its location, and 
 the uses for which it may reasonably be employed. The public acquires no 
 rights by mere user of a way over wild, unimproved, unoccupied, and 
 uninclosed prairie, mountain, or forest lands. 6 
 
 The fact that a landowner has permitted for a long period of years the 
 residents of the neighborhood to pass over his land to an attractive beach on 
 the seashore, 7 especially where the use has been occasional and varying and 
 
 1 Cooper v. Monterey County (Cal.), 38 8 Cunningham v. San Saba Co. (Tex.), 
 Pac. Rep. 106. 20 S. W. Rep. 941; Engle v. Hunt (Neb.), 
 
 2 Brown v. Hines (Ind. App.), 44 N. E. 69 N. W. Rep. 970; People v. Osborn 
 Rep. 655. (Sup.), 32 N. Y. Supp. 358; Kurtz v. Hoke 
 
 'People v. Osborn (Sup.), 32 N. Y. (Pa.), 33 Atl. Rep. 549. 
 
 Supp. 358. 7 Coburn v. San Mateo Co. (C. C.), 75 
 
 * Iselin v. Starin (Sup.), 24 N. Y. Supp. Fed. Rep. 520; Mills & Allen v. Evans 
 
 748. (la.), 69 N. W. Rep. 1043; Borough v. 
 
 5 Lrnders v. Town of Whitefield (111. Alleghany Val. R. (Pa.), 25 Atl. Rep. 
 
 Sup.), 39 N. E. Rep. 656. 518. 
 
471 PRESCRIPTION AND PRESCRIPTIVE RIGHTS. 685. 
 
 only at certain periods or seasons, cannot be held a sufficient use to give the 
 public a right of way by prescription. 1 
 
 A way cannot be established over another's ground by prescription, where 
 it shifts from one place to another as to any part of the route, but the same 
 ground must be occupied all the while, and the way kept in repair on that 
 ground. 2 While the use must be of substantially the same road all the time, 
 the fact that the track, by reason of washing or other causes, by consent of 
 the users of it, changes a few feet, sometimes to one side of the space 
 appropriated, and sometimes to the other, does not destroy the right. 3 
 
 684. Encroachments upon Public Ways. Surveyors and engineers most 
 frequently meet with incorporeal rights in running out old roads and streets, 
 and in the location and maintenance of new ways, whether highways, canals, 
 or railways. A frequent case is when encroachments have been made by 
 abutting owners upon roads, and the surveyor is called upon to relocate the 
 original line. Stony spots, ruts, and channels, wet, soft, and muddy places, 
 cause teamsters to deviate and select Hew routes, and travel thus shifts from 
 side to side, sometimes encroaching upon and at other times receding from 
 opposite property owners, who follow up with their fences. This is no doubt 
 the frequent cause of the sinuosities of roads. Easements cannot in general 
 be acquired against the state or the public, unless expressly permitted by 
 statute. Therefore in general the old line should be re-established and fences 
 replaced when they have encroached upon public roads. 
 
 The public may, however, acquire easements in or over private property 
 by adverse use for the full statutory period. The same circumstances and 
 conditions must characterize the use as are necessary to give an individual the 
 same rights in private property. The use by the public must therefore be 
 adverse and under a claim of right, and not by permission. A gate erected 
 across the way, and maintained and kept closed by the owner at certain times 
 during the period, thus evincing an intention to exclude the public, interrupts 
 the use and destroys any prescriptive rights not already fully acquired. 4 In 
 case of an easement of an alley acquired by an individual, a gate maintained 
 across the alley is of no consequence if the claimant used the way whenever 
 he chose to do so. 5 
 
 685. Prescriptive Rights Acquired over Railways.* The reason that 
 individuals cannot acquire prescriptive rights over or in highways is that it 
 would be allowing adverse rights against the state, which cannot be put to 
 the trouble of watching her innumerable roads and streets. This reason does 
 
 1 State v. Wolfe (N. C.), 17 S. E. Rep. s Kurtz z/. Hoke (Pa.) Sup.), 33 Atl. Rep. 
 528; Sutton v. Nicholaisen (Cal.), 44 Pac. 549. 
 
 Rep. 805. But see Taft v. Commonwealth *Shellhouse v. State (Ind.), n N. E. 
 
 (Mass.), 33 N. E. Rep. 1046. Rep. 484 [1887], 
 
 2 Follendore v. Thomas (Ga.), 20 S. E. 5 Demuth v. Amweg, 90 Pa. St. 181 
 Rep. 329; Hoyt v, Kennedy (Mass.), 48 [1879]. 
 
 N. E. Rep. 1073 [1898]. 
 
 * See Sec. 535, supra. 
 
685. OPERATIONS PRELIMINARY TO CONSTRUCTION. 47 2 
 
 not exist with regard to railroads, and therefore an open, uninterrupted, and 
 adverse use for the statutory period will give a right of way over the location 
 of a railroad although the road is in actual operation. 1 The existence of a 
 statute forbidding walking or riding or driving upon a railroad-track will 
 not defeat the prescriptive rights, as these acts are unlawful only when done 
 without the railroad's consent. 2 
 
 Title by adverse possession may be obtained to land which a railroad 
 company acquired by its charter in fee, and which, though it abutted and 
 paralleled its right of way, the company did not, and was not compelled to, 
 include in nor maintain as such. 3 
 
 Where a railroad company has built its station on lots bounded by two 
 streets, and has left vacant a strip of land parallel to each street, to be used 
 as an approach to the station, which strip was paved by the company, and 
 there was no intention to dedicate this land to the public, it was held that 
 although such land had been so left open for more than twenty years, and 
 had been used by the public as part of the streets, there was neither a 
 common-law dedication nor a prescriptive title in the public. 4 
 
 To support claim of adverse possession by the owner of the servient estate 
 against the easement of a railroad, it must distinctly appear that his occupancy 
 is hostile to that of the railroad and inconsistent therewith. 5 
 
 One who cultivates and raises crops on the right of way of a railroad may 
 acquire title thereto by adverse possession, although the railroad company 
 runs trains over the track laid thereon. 6 
 
 As prescriptive rights may be acquired over railroads, so may railroads 
 acquire right of way over, and user in, private property. Such adverse posses- 
 sion and user of a public street, however, gives no right as against the public, 
 or against individuals who have the right or easement of passing over the 
 street; and though the railroad has purchased the fee of the land in a public 
 street, such act does not authorize it to construct its road upon such street, 
 as against the public, without express authority of law. 7 Adverse and con- 
 tinuous use by a railway company of a strip of land as a right of way creates 
 an easement by prescription. 8 The North Carolina courts have held that a 
 
 iWisher v. N. Y. & N. E. R. Co., 135 HI, 564. 
 
 Mass. 197 [1883]; Hardy v. Alabama & * Chicago v. Chicago, R. I. & P. Ry. Co. 
 
 V. Ry. (Miss.), 19 So. Rep. 661. (111. Sup.), 38 N. E. Rep. 768. 
 
 2 Turner v. Fitchburg Ry. Co. (Mass.), 5 Wilmot v. Yazoo & M. V. R. Co. 
 
 14 N. E. Rep. 627 [i888j; Spottiswood v. (Miss.), 24 So. Rep. 701 [1899]. 
 
 Morris & E. R. Co. (N. J.), 40 All. Rep. 6 Paxton v. Yazoo & M. V. R. Co. 
 
 505 [1898]; Clafflin v. Boston, etc., R. Co. (Miss.), 24 So. Rep. 536 [1899]. See Nash- 
 
 (Mass.), 32 N. E. Rep. 659. But see An- ville, etc., Ry. v. Reynolds (Tenn.), 48 
 
 dries v. Detroit, etc., Ry. Co. (Mich.), S. W. Rep. 258 [1898], and Brayden v. 
 
 63 N. W. Rep. 526; and Massachusetts New York, etc., R. Co. (Mass.), 51 N. E. 
 
 Statutes 1861, ch. 100, preventing the Rep. 1081. 
 
 acquisition of railroad land by adverse 7 Atty. Gen. v. M. & E. Ry. Co., 19 N. 
 
 possession ; and Littlefield v. B. & A. J. Eq. 386 [1869]. 
 
 R. Co. (Mass.), 15 N. E. Rep. 648 [1888]. 8 Texas & P. Ry. Co. v. Gaines (Tex. 
 
 'Illinois Cent. R. Co. v. Wakefield, 173 Civ. App.), 27 S. W. Rep. 266; Johnson 
 
473 PRESCRIPTION AND PRESCRIPTIVE RIGHTS. 686. 
 
 railroad company cannot obtain title to a right of way over land by prescrip- 
 tion, since it can obtain such easement through the exercise of its right of 
 eminent domain without the owner's grant or consent. 1 
 
 686. Tacking the Use of Successive Holders. The same conditions and 
 circumstances that enable a subsequent holder to claim the benefits of his 
 predecessor's adverse possession will enable a successor to claim the benefit 
 of his grantor's adverse user and enjoyment of an easement." Privity of 
 estate is necessary in order that successive holders of land may have the 
 benefit of the possession of those who have held before them. The possession 
 of the successive occupants must be connected by purchase, descent, or 
 devise, in order that the periods of their possession may be added together 
 to make the full statutory period. The relation between the claimants who 
 have successively had possession must be that of ancestor and heir, grantor 
 and grantee, or devisor and devisee. There should be privity either of con- 
 tract, blood, or estate. Some deed or instrument sufficient in form for the 
 purpose of carrying title is an essential ingredient to constructive possession. 
 The connecting link must in general be a valid deed or conveyance. A con- 
 structive possession for less than the statutory period is in the nature of an 
 incorporeal right and cannot be transferred by livery of seisin. The prior 
 possessor may have a right to say who shall have and continue this wrongful 
 possession or inchoate right, and may transfer it by sale or gift, but the 
 transfer must be by deed or by law. 2 
 
 In tacking or uniting the possessions of two or more successive occupants 
 who have held under color of title, the entire possession will be confined to 
 the metes and bounds described in the prior holder's color of title. If more 
 is claimed, it must be shown that the possession of it was delivered as part of 
 the lands sold or conveyed. If one is in possession of a strip of land together 
 with adjoining land, and deeds the adjoining land, giving possession of both, 
 the possession of the strip by the grantor may be tacked to that of the grantee 
 to make the full period necessary to give title. 3 
 
 It is universally admitted that interest acquired by possession will descend 
 to the heir without interrupting the running of the statute, and there is no 
 good reason why the ancestor may not voluntarily dispose of his possessory 
 interest. The mode of transfer may give rise to questions between the parties 
 to the transfer; but as respects the rights of a third person against whom the 
 possession is held adversely, it is immaterial, if the successive transfer of the 
 possession were in fact made, whether it was made by will, by deed, or by 
 mere agreement, either written or verbal. 4 It is necessary that an occupant 
 
 v. Owensboro, etc., Ry. Co. (Ky.), 36 S. "Falcon v. Sunshower, 22 N. E. Rep. 
 
 W. Rep. 8; Ryan v. M. V. & S. I. R. Co., 835. 
 
 62 Miss. 162 [1884]. 4 McNeelyz/. Langan, 22 Ohio St. 32. 
 
 1 Narron v. Wilmington & W. R. Co. See also 50 Mo. 536; Weber v. Anderson, 
 (N. C.), 20 S. E. Rep. 356 [1898]. 73 HI- 439- 
 
 2 Simpson v. Downing, 23 Wend. 316. 
 
687. OPERATIONS PRELIMINARY TO CONSTRUCTION. 4/4 
 
 claim under the prior holder in order to avail himself of the prior holder's 
 adverse possession. 1 
 
 In Connecticut and in some other states continued uninterrupted posses- 
 sion for the full statutory period, whether by one person or more, is sufficient. 
 The possession must be connected and continuous, so that there shall be no 
 time during which the possession of the true owner shall have intervened, and 
 such connection and continuity may be effected by any conveyance, agree- 
 ment, or understanding which has for its object a transfer of the rights of the 
 possessor or of his possession, and which is accompanied by an actual 
 transfer of possession in fact.* 
 
 687. What is Privity of Estates. What will constitute privity, or what 
 will not, is a difficult question; but it is certain that if any moment of time 
 exists after the transfer is made, that the property is not occupied, the legal 
 possession of the real owner asserts itself and is restored, which destroys the 
 continuity of the two successive possessions. The continuity must be proven, 
 it will not be assumed; and testimony that the prior holder merely sold to 
 the subsequent holder is too vague to show privity between them. There 
 must be evidence showing what was sold, good will, title, or possession. It 
 must be shown that the actual possession of an estate was delivered, that the 
 boundaries were denned and limited, and that each successive holder has 
 possessed and claimed the same particular parcel the ownership of which is 
 the subject of dispute. 3 
 
 A widow cannot tack her possession to that of her deceased husband 
 unless by deed or devise, because the seisin went to the heirs of the husband, 
 or the seisin of the true owner revived. Right of dower is not enough. 4 
 This is so even though the widow resided with her husband on the land during 
 his possession. 5 Privity of successive possessors may be shown by parol evi- 
 dence. 6 Nor can a remainderman tack his possession to that of the tenant 
 for life, because the remainderman cannot bring action against the disseizor 
 until he has title 7 or possession, and therefore the disseizor has not had 
 possession for twenty years after the right accrued. 8 
 
 A sheriff's deed is of itself good "color of title" ; but if unaccompanied by 
 judgment or execution, it is not evidence of the sheriff's authority to sell, and 
 is not, therefore, sufficient evidence of privity between the purchaser and the 
 prior adverse occupant. 9 
 
 1 Am. & Eng. Ency. Law 271. 241. 
 
 2 3 Gray's Real Property 114 and cases 5 East Tennessee Iron & Coal Co. v. 
 cited. Walton (Tenn. Ch. App.), 35 S. W. Rep. 
 
 3 Potts v. Gilbert, 3 Wash. C. C. 475. 459. 
 
 See also Clapp v. Birmingham, 9 Cow. 6 Weber v. Anderson, 73 111. 439. 
 
 563; Moore v. Collishaw, 10 Pa. St. 224; 7 Boynton v. Middlesex Mut. Fire Ins. 
 
 Schrack v. Zubler, 34 Pa. St. 38; People Co., 45 Mass. 215. 
 
 ex rel. Mitchell v. Haws, 20 How. 29-32 ; 8 See Haynes v. Boardman, 119 Mass. 
 
 Doe v. Brown, 4 Ind. 143; San Francisco 414. 
 
 v. Fulde, 37 Cal. 349. 9 Kendrick v. Latham (Fla.), 6 So. Rep. 
 
 * Sawyer v. Kendall (Mass.), 10 Cush. 871 
 
475 PRESCRIPTION AND PRESCRIPTIVE RIGHTS. 688. 
 
 An invalid sheriff's deed will not constitute privity between the purchaser 
 .and the person whose property is sold. 1 Where land is sold under a judgment, 
 one in occupation cannot tack the time he held after sheriff's sale to his pos- 
 session had before the sale. 2 A corporation cannot tack its possession to that 
 of the individual members of the corporation even when organized as a 
 voluntary society for furthering the purpose of such members. 3 In South 
 Carolina it has been held that an heir can tack his possession to that of his 
 ancestor, 4 but that a purchaser cannot have the benefit of his vendor's 
 possession. 5 
 
 Courts have gone to great lengths in presuming grants when it conduced 
 to justice and quieted men in their possessions. In a case where the statute 
 operates mere length of time less than that prescribed by statute, can never 
 be a presumptive bar. Length of time accompanied by circumstances which 
 render it probable that a grant was made may be a presumptive bar. 6 No 
 written instrument is necessary to establish privity where the possession is 
 actual ; but if the possession is constructive only, a written contract is essen- 
 tial. 7 Adverse possession of inclosed lands by a donee before deed maybe 
 coupled with possession after the deed is given. 8 
 
 An abandonment or vacating of the premises by the grantor, the premises 
 remaining vacant a short time before the grantee took possession, was held to 
 prevent tacking the grantor's to the grantee's possession. 9 
 
 688. Disabilities to which Owner of Servient Estate is Subject, The 
 grounds on whi^h claims to property were allowed after an adverse possession 
 for a long time were (and are) that a grant or title was presumed to have been 
 given and, that the occupant entered under it. If such a grant were impossi- 
 ble, or if the true owner had no legal right or capacity to make such a grant, 
 then the presumption fails and the possession is not adverse. This incapacity 
 of the grantor is called "disability," and it may arise from infancy, covert- 
 ure, absence, imprisonment, etc., or from any cause that would destroy the 
 presumption of a grant. The same law of disabilities to adverse user is 
 .applied to incorporeal rights as belongs to corporeal rights. The law was 
 very unsettled on these points in its earlier history in this country, but there 
 can be little doubt of the general correctness of the above statements at this 
 date. 10 The presumption of right operates in strict analogy to the statutes of 
 limitation, and whatever disabilities are allowed by them will be recognized in 
 prescription. 11 A second disability cannot be added to one which existed 
 
 1 22 Ga. 46. 7 Kendricks v. Latham (Fla.), 6 So. 
 
 2 53 Ga. 320. Rep. 871. 
 
 3 Reformed Church v. Schoolcraft, 65 8 Sanders v. Logue, 12 S. W. Rep. 722. 
 N. Y. 134. "36 Miss. 504. 
 
 4 Williams v. McAliley, Cheeves 200. 10 Ballard v. Demmon (Mass.), 31 N. E. 
 
 5 King v. Smith, Rice 10. See Haynes Rep. 635. 
 
 v. Boardman, 119 Mass. 414. u Renierz/. Slater, 20 Pa. St. 458; Tracy 
 
 6 Swift, Ch. J., in Bunce v. Wolcott, 2 v. Atherton, 36 Vt. 503. 
 Conn. 27. 
 
688. OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 when the adverse possession began, even though there has been no time when 
 the owner was free. Disabilities cannot be tacked in prescription any more 
 than in adverse possession. To tack successive users or periods of enjoyment 
 there must be privity between the parties either of contract, blood, or estate. 
 
 If there has existed a period, however short, in which the disability was 
 removed or destroyed, it will set the statute running from that time. If a 
 man lives for one day after his cause of action has accrued, and then dies, 
 leaving infant children, their infancy will not prevent the statute from running, 
 though there be no time during the period when they could have sued. 
 Once in motion the statute cannot be interrupted by subsequent disabilities. 
 If the possession remains adverse and continuous until the full period has 
 passed, the right to enter is gone forever. 
 
 Like every other assertion of the law, this statement must be taken with 
 certain qualifications. This is a subject that has received special legislation. 
 In some states it has been enacted that civil war and absence from the state 
 would postpone the operations of the statute. 1 
 
 Outside of these few exceptions it may be said that the universal rule is 
 well settled that, when the statute of limitations has begun, it will not be 
 interrupted by any subsequent disability. The operation of the statute is 
 prevented only so long as that disability continues which existed when the 
 cause of action accrued. A subsequent disability cannot be added to bar the 
 statute. Though the prior disability continues until after the later one has 
 commenced, and though there has been no time during which the person 
 could have brought his action, yet the subsequent disability cannot bar the 
 statute. 2 The statutory period of adverse possession will commence to run 
 the moment the prior disability has ceased to exist. 
 
 If this were otherwise, it is claimed that the objects of the statute would 
 be defeated. If successive disabilities could be united, old claims might be 
 preserved until all evidence respecting them had been obliterated, and might 
 then be used to annoy claimants who might have already enjoyed undisturbed 
 possession for half a century or more. Such a law would be contrary to the 
 spirit, meaning, and express purposes of the statute and to the whole theory 
 of adverse possession. 3 
 
 Statutes also exist which require that the statute begin to run during 
 the disability, as in Connecticut, where the law allows but five years in 
 which to make entry after the disability is removed. In this case either 
 it must be admitted that the period of limitations in such a case is shortened 
 by ten years, or that the statute began to operate against the true owner ten 
 years before the disability was destroyed. Whether by the theory of pre- 
 
 1 13 Amer. & Eng. Ency. Law 732. claim in court, then there has been no 
 2 Note. If this be maintained, it must time in which he could have made aeon- 
 be upon some other theory than that of a veyance, and therefore there can be no 
 presumptive grant. If there has been no presumptive grant. 
 time in which the owner could assert his 3 Bunce v, Wolcott, 2 Ccnn. 27. 
 
477 PRESCRIPTION AND PRESCRIPTIVE RIGHTS. 688. 
 
 sumption or by the arbitrary power of the legislature, the rule is fully 
 established that, when the statute has commenced to run, it runs through all 
 subsequent disabilities and intermediate events and conditions that may sur- 
 round the true owner. l 
 
 When a man who was insane when disseized subsequently recovered his 
 reason for a time, but again relapsed into insanity, it was held that the statute 
 was set in motion by his sanity, and that the relapse did not affect its running. 
 If a person is under more than one disability when his land is taken possession 
 of 'by an adverse claimant, he is not obliged to act until the last disability is 
 removed. The owner may elect whichever disability he may choose to excuse 
 his delay in asserting his rights to the property. 2 Thus an infant woman 
 marries and becomes insane, and is afterwards disseized; she becomes of age 
 at twenty-one, is a widow at forty, and recovers reason at sixty. Here are 
 three disabilities all existing when she is disseized; therefore the statute of 
 limitations will not run until the last disability is removed. If her marriage 
 and insanity had taken place after her disseisin, then the statute would have 
 commenced when she became of age. (at twenty-pne years of age). If the 
 disseisin had taken place while she was under age and married, and she after- 
 wards became insane, then the statute would have begun when she became a 
 widow. 
 
 The burden of proof rests on one claiming an easement by prescriptive 
 right, arising from user for the statutory period, to show that during all of 
 such period the servient estate was owned by persons free from legal dis- 
 ability. 3 
 
 It is a universal rule that exemptions from the operation of the statute are 
 privileges given by the statute itself, and cannot be allowed if not expressly 
 provided for by the statute. The language of the act must prevail; no 
 departure is justified on account of inconvenience or hardships. 4 A remark- 
 able case illustrating this rule in a striking way was decided in the United 
 States courts. A railroad company held bonds of a city, and attempted to 
 sue upon them. The mayor and common council each year as soon as 
 elected met in secret places with locked doors, transacted necessary business 
 for the year, and resigned, which resignation took effect immediately. The 
 city was, in this way, able to evade summons, and for ten years was without 
 officers. The court held that in equity fraudulent concealment might form 
 an exception to the statute, but that for a debtor to evade service of process 
 was not fraudulent in the legal sense of the term, however morally wrong or 
 dishonest it might be. 5 
 
 1 13 Amer. & Eng. Ency. Law 732, 733, cases cited, 
 
 and cases cited. 5 Amy v. Watertown (Wis.), 22 Fed. 
 
 2 1 Amer. & Eng. Ency. Law 735. Rep. 418; affirmed in 130 U. S. 320. 
 
 *Saunders v. Simpson (Tenn.), 37 S. See also Nash v. El Dorado Co. (Cal.) r 
 
 W. Rep. 195. 24 Fed. Rep. 252, and 71 la. 147. 
 
 *l Amer. & Eng. Ency. Law, 735, and 
 
688. OPERATIONS PRELIMINARY TO CONSTRUCTION. 478 
 
 In general, when there is no person to sue or be sued the statute will not 
 begin to run; there must be in existence some one who can sue and somebody 
 who can be sued. When, therefore, an action accrues to the estate of a 
 deceased person, the statute does not run until a representative has been duly 
 qualified. This is understood to be the general rule everywhere. 1 Accord- 
 ingly the statute does not run against a town until it is incorporated and has 
 capacity to sue. 3 In California the statute runs nevertheless, although there 
 be no parties to sue or be sued. 3 
 
 War, fraud, and concealment will in some states suspend the statute. 
 The war must consist of invasion, rebellion, or insurrection, which disturbs 
 or stops the peaceable course of justice, or which closes the doors of the 
 courts. The courst must be closed or interrupted. An occasional invasion 
 by hostile Indians is not enough, unless the business of the court is stopped. 
 An act of Congress to suspend the operation of the statute will bind state as 
 well as federal courts; but it is held to the contrary in Louisiana. 4 Courts 
 will take judicial notice of the beginning and end of a civil war, or of the 
 supervision of the statute, without its being pleaded or proven. 5 
 
 In bringing an action near the end of the period, it is pretty well settled 
 that if the writ is sworn out and delivered for service within the statutory 
 period it will save the suit. It stops the running of the statute, for the statute 
 does not run against a claim while it is in litigation. Complaints are 
 permitted to be amended after the period has elapsed ; and in some states it 
 has been held that the statute does not apply when the suit has been 
 disallowed because it was brought in a wrong court, 6 but does apply when the 
 suit has been dismissed for want of jurisdiction. 7 
 
 Trial need not be had, or judgment obtained, during the statutory period. 
 If the suit is begun, it is sufficient. An action of ejectment brought by the 
 owner and afterwards dismissed will not interrupt or suspend an adverse pos- 
 session; but if it be ^successful and judgment is obtained, the operation of the 
 statute is interrupted from the bringing of the suit. 8 
 
 In computing the time from one event, as an act of disseisin or taking 
 possession, it is a general rule that the day on which the act is coihmitted or 
 instrument is delivered is not counted, but is excluded. This is equally true 
 of contracts. It is not an inflexible rule, but will give way to a manifest 
 contrary intention in a statute or contract . 
 
 Before the married woman's acts were passed, marriage (or coverture, as 
 it is generally spoken of in law) was a disability which denied her any separate 
 recognition in a court; but now that a married woman can sue and be sued 
 as if she were single, that is no longer a disability, nor is there any reason why 
 
 1 13 Amer. & Eng. Ency. Law 737. 6 Bonney v. Stoughton, 122 111. 536. 
 
 * 18 Mo. 220; 2 Lea (Tenn.) 694. 7 Mclntyre v. Mich. State Ins. Co., 52 
 
 3 i Amer. & Eng. Ency. Law 737. Mich. 188. 
 
 4 13 Amer. & Eng Ency. Law 738, 739. 8 i Amer. & Eng. Ency. Law 275. 
 6 13 Amer. & Eng. Ency. Law 744. 
 
4/9 PRESCRIPTION AND PRESCRIPTIVE RIGHTS. 689. 
 
 she should be exempt from the statute. This is the general law, but there 
 are exceptions. 1 
 
 689. Prescriptive Eights in General. Prescriptive rights may be 
 acquired in any incorporeal right or interest the use of which gives to the 
 owner of the servient estate a right of action against the trespasser or person 
 exercising such user. The subject of prescriptive right in the numerous 
 interests incident to land has been discussed in the several chapters treating 
 of these special subjects; it will therefore be a waste of time and space to 
 review the subjects here, and the reader is referred to those sections in the 
 several chapters mentioned for the particular treatment of prescription in 
 regard to those rights.* 
 
 Prescriptive rights to invade and take natural rights incident to property 
 may be acquired in any case, as before stated, if the invasion and appropria- 
 tion of such rights gives the owner a just cause of action against the tres- 
 passer. Therefore rights may be acquired in minerals and fluids pervading 
 the earth, to pollute the air, water, and light, to violate and disturb the quiet 
 and peaceful ness that belongs to nature. 
 
 Prescriptive rights may be acquired to violate the rights of possession 
 either to land or to things incident to land. Essentially prescription is a 
 negative right the right to invade the rights of others. It would be more 
 sensible to call it a prescriptive wrong, which after long use or abuse 
 becomes a right. 
 
 The subject is continued in the succeeding chapters on Rights of Way, 
 and cAer topics of peculiar interest in construction work. 
 
 1 13 Amer. & Eng. Ency. Law 740; Rep. 231. 
 Randolph v. Casey (W. Va.), 27 S. E. 
 
 * See Sees. 107, New Channel of a Stream; 183, Eaves Drip; 185, Surface Waters; 
 212, Polution of Waters; 262, Underground Waters; 325, 326, Lateral Support; 500- 
 503, Boundaries; 511-540, Adverse Possession; 641-660, Easements; 661-670, License; 
 701-710, Dedication; 711-730, Rights of Way. 
 
CHAPTER XXXV. 
 DEDICATION TO PUBLIC OF RIGHTS IN LAND. 
 
 701. Origin and Character of Dedication. The principles of the law of 
 dedication had their origin in the early common law. The earliest recogni- 
 tion of the doctrine of dedication of easements and the public use thereof 
 appears in two comparatively modern decisions, 1 and it has since been fully 
 and generally recognized as a familiar and undoubted principle of the law. 
 
 Dedication has been well defined as "an appropriation of land to some 
 public use made by the owner of the fee, and accepted for such use by or on 
 behalf of the public." 2 It is said that the doctrine of dedication is founded 
 in public convenience. The owner of the fee, however, does not make the 
 dedication primarily for the convenience of the public, but for some advantage 
 which will accrue to him by having the public make use of the easement 
 granted. 
 
 A common-law dedication of land must be made to the public. It cannot 
 be to an association of persons or to a private corporation, as a railroad com- 
 pany. 3 No particular formality is necessary to constitute a good dedication 
 at common law. It may be established by grant or written instrument, or 
 by the acts and declarations of the owner of the premises. The vital principle 
 of dedication is the intention to dedicate, and whenever this is unequivocally 
 manifested the dedication, so far as the owner of the soil is concerned, has 
 been made. 4 
 
 If the dedication be accepted and used by the public in the manner 
 intended, the dedication is complete, precluding the owner and all claiming 
 under him from asserting any ownership inconsistent with the easement 
 granted. A common-law dedication does not pass the legal title to the land, 
 but it is sufficient^to defeat an action at law for the recovery of the possession 
 of the property as against those who are using it in accordance with the object 
 
 1 Rex v. Hudson, 2 Strange 909 [1732]: * Lake Erie, etc., R. Co. v. Whitham 
 
 Lode v. Shepherd, 2 Strange 1004 [1735]. (111.), 4 N. E. Rep. 1014. 
 
 8 Angell or. Highways (3d ed.), chap. 4 De Grilleau v. Frawley (La.), 19 So. 
 
 3, 132. Rep. 151. 
 
 480 
 
48 1 DEDICATION TO PUBLIC OF RIGHTS IN LAND. 7<D2. 
 
 and purpose of the dedication. The mere use, however, of a road over 
 private land by the public will not make it a public road. 1 
 
 Statutory dedications are made, and can only be made, in strict compli- 
 ance with the statute, and compliance with the statute will dispense with the 
 necessity for any assent or acceptance on the part of the public. An accept- 
 ance by the public, however, may cure an incomplete statutory dedication 
 and make it a good common-law dedication. 2 To determine the requisites 
 for a statutory conveyance the statutes of the several states must be consulted. 
 
 702. Purposes of Dedication. The fundamental reason for making a 
 dedication is a selfish one. The dedicator, except in a few cases, does not 
 make the dedication because of his love for mankind, but because he expects, 
 by conferring upon the public some use in his lands, to enhance the value of 
 his estate. When, for instance, a town or city increases in size or population, 
 and land on the outskirts is cut up into building-lots, unless there be some 
 way of reaching these lots they are valueless for the purpose for which they 
 are intended. The owner lays out streets through his land and dedicates 
 them to the public, and thus the lots have a commercial value. The public 
 in such a case benefits, as it has the full use of these streets, but the dedicator 
 of the streets had no thought of benefiting the public except in,so far as he 
 himself might be benefited. The same holds true when the owner of land 
 dedicates a park or square to the public. Of course there are some wealthy 
 people who dedicate parks and squares to the public from purely philanthropic 
 motives, but this class of persons is very small as compared with those who 
 dedicate for strictly commercial reasons. 
 
 By the early common law dedication was confined to highways, as the 
 need for the dedication of public parks, squares, etc., was not then felt. 3 In 
 this country, however, the doctrine has a wider application and its limit has 
 been judicially extended so as to include parks, public squares, school-lots, 
 burying-grounds, lots for church purposes, and other charitable uses gen- 
 erally. 4 The dedication of public squares, parks, school-lots, and lots for 
 charitable purposes is usually made by the public authorities for the benefit of 
 the whole community. The same rules of law apply to the dedication of 
 squares, parks, school -lots, etc., as apply to the dedication of highways. 5 
 
 In the case of the dedication of bridges to the use of the public the same 
 rules also apply, with the exception that unless a bridge is used by the public 
 
 1 Dicken v. Liverpool Salt & Coal Co. 6 Hoadley z>. San Francisco, 50 CaL 
 (W. Va.), 23 S. E. Rep. 582; Tutwiler v. 265; Doe v. Attica, 7 Ind. 641; Warren f. 
 Kendall (Ala.), 21 So. Rep. 332. Lyons, 22 Iowa 351; Mankato z'.Willard, 
 
 2 Fulton v. Mehrenfeld, 8 Ohio St. 440; 13 Minn. 23; Price v. Thompson, 48 Mo. 
 Baker v. Johnson, 21 Mich. 319; Sargeant 363; New York v. Stuyvesant, 17 N. Y. 
 v. Bank, 12 How. (U. S.) 371; Waugh v. 34; Langley v. Gallipolis, 2 Ohio St. 
 Leech, 28 111. 488. 107; Pearsall v. Post, 20 Wend. (N. Y.) 
 
 'Baker v. Johnson, 21 Mich. 319; Post in; Commonwealth v. Alburger. I 
 
 v. Pearsall, 22 Wend. (N. Y.) 425. Whart. (Pa.) 469; State v. Atkinson, 24 
 
 4 Mowry v. City of Providence, 10 R. I. Vt. 448. 
 52. 
 
73- OPERATIONS PRELIMINARY TO CONSTRUCTION. 482 
 
 it may be indicted as a nuisance. In the case of a highway the dedication is 
 complete when the public accepts and uses the way. If, however, after 
 acceptance the public should cease to use the way, this fact would have no 
 effect on the dedication; the question of continued usage, in regard to a 
 highway, is not material. In the case of a bridge, however, it seems that 
 there must be something more than the mere acceptance on the part of the 
 public : there must be some need for the bridge. The fact that the bridge 
 has been used for some time is prima facie evidence that it is not a nuisance. 1 
 
 703. What Constitutes a Dedication. What constitutes dedication is a 
 very important question, not only for the owner of the land, but also for the 
 engineer. A landowner who is ignorant of the law employs an engineer to 
 survey a piece of land and lay it out in town or city lots. To add to the 
 attractiveness of the site for residential purposes, the landowner has the 
 engineer survey and map out a park or a square, and the land is sold from 
 maps and surveys made by the engineer, with the lots abutting on the park 
 or square as designated. After some of the lots have been sold from the map 
 it may seem advisable to the landowner to change the location or abolish the 
 park or square. Then the question arises whether there has not been a 
 dedication to the public of the park or square, and the landowner may be 
 estopped from interfering with it. Such questions as this make it advisable 
 that the engineer have at least a general knowledge of the principles of dedi- 
 cation, so that he may avoid causing his employer needless loss or litigation 
 which was not contemplated by the owner. 
 
 The real test to determine whether there has been a valid dedication is 
 whether the owner of the land intended that the public should have the use of 
 the land. If it can be shown that the owner of the fee intended the public 
 to have an easement in the land, and if it also can be shown that the public 
 used the easement intended, then the dedication is complete and the dedicator 
 is bound by it. No particular form is necessary in making a dedication. 
 No grant is required. 2 
 
 The legal title to the land does not pass from the dedicator, but after the 
 dedication he owns the fee subject to the right or use dedicated. 3 
 
 Dedication may be made by parol and proved by parol, the only necessary 
 elements being that the owner of the premises intend that the public shall 
 have a certain use or right in his land, and that the public accept the use of 
 the land intended. 4 The intention to make a dedication must be clearly 
 
 1 State v. Carpenter, 2 N. 1.513; Wil- 'Lode v. Shepherd, 2 Stra. 1004; Du- 
 
 liams v. Cunningham (Mass.), 18 Pick. buque v. Maloney, 9 Iowa 450; Beatty v. 
 
 312. Kurtz, 2 Pet. (U. S.) 266; Kelsey v. 
 
 2 McConnell v. Lexington, 12 Wheat. King, 33 How. Pr. (N. Y.) 39; New Or- 
 
 (U. S.) 582; Town of Pawlet v. Clark, 9 leans v. U. S., 10 Pet. (U. S.) 662; Han- 
 
 Cranch (U. S.) 292; Winona v. Huff, n bury v. Woodland Lumber Co. (Ga.), 
 
 Minn. 114; Doe v. Jones, II Ala. 63; 26 S. E. Rep. 47^. 
 
 Bryant v. McCandless, 7 Ohio. Pt. II. *Marcy v. Taylor, 19 111. 634; Mayor of 
 
 135; Klinkener v. School District, I Macon v. Franklin, 12 Ga. 239; Hall v. 
 
 Jones (Pa.) 144. McLeod, 2 Mete. (Ky.) 98; Institute v. 
 
4^3 DEDICA TION TO PUBLIC OF RIGH7S IN LAND. 703. 
 
 shown, but the intention may be gathered from acts and declarations of the 
 owner in connection with all the circumstances which surround the subject in 
 each particular case. l 
 
 A dedication may be inferred from a long and uninterrupted use by the 
 public with the knowledge and consent of the owner; a but where the dedica- 
 tion is based on the mere fact alone of user by the public, it has been held 
 that it is necessary to show that the user was adverse, that is, with a claim of 
 right; and that the claim and user were uninterrupted for the period required 
 by the statute of limitations. 8 * 
 
 Where a landowner has an engineer survey his land into lots, streets, and 
 squares, the mere act of surveying and mapping the streets and squares will 
 not, in itself, amount to a dedication; 4 yet a sale of the lots with reference 
 to the engineer's map or plan, whether recorded or not, will amount to an 
 immediate and irrevocable dedication of such streets and squares so far as the 
 owner is concerned. 5 
 
 Where a city unlawfully takes land for street purposes without the owner's 
 knowledge and constructs a street thereon, the fact that the owner afterwards 
 acquiesces in the taking, and tenders the city a deed if it will make com- 
 pensation for the land taken, is not sufficient to imply a dedication of the land 
 so as to deprive the owner of the right to sue for compensation. 6 
 
 There may be a dedication of government lands, but the evidence from 
 which consent to user will be inferred must be more than usually clear to be 
 conclusive in such cases. 7 The reason for the strictness of this rule is that 
 such lands are usually wild and unfenced, free to public access, and therefore 
 it cannot readily be presumed that any special dedication cam be intended. 
 The same rule is applied to waste and unfenced land owned by private indi- 
 viduals. 8 Intention to dedicate will be more readily presumed in the case of 
 city or town land than in the case of country land, and in the case of well- 
 How, 27 Mo. 211; Oswald v. Grenet, 22 * United States v. Chicago, 7 How. (U. 
 Tex. 94; Gentleman v. Soule, 83 Am. S.) 185. 
 
 Dec. 264. 5 Van Witson v. Gutman (Md.), 29 Atl. 
 
 1 Columbus v. Dahn, 36 Ind. 330; Mor- Rep. 608; Pry v. Mankedic (Pa.), 34 Atl. 
 gan v. Railroad Co., 96 U. S. 716. Rep. 46; Harrison County v. Seal 
 
 2 McKey v. Hyde Park Village, 10 (Miss.), 5 So. Rep. 622; Heselton v. 
 Sup. Ct. Rep. 512; Coburn v. San Mateo Harmon (Me.), 14 Atl. Rep. 286; Archer 
 County (C. C.), 75 Fed. Rep. 520; Shell- v. Salinas City (Cal.), 28 Pac. Rep. 839; 
 house v. State (Ind.), n N. E. Rep. 484; Porter v. Carpenter (Fla.), 21 So. Rep. 
 Klenk v. Town of Walnut Lake (Minn.), 788; Bissell v. Railroad Co., 23 N. Y. 
 53 N. W. Rep. 703; McKenzie v. Gilmore or. 
 (Cal.). 33 Pac. Rep. 262. 6 Longworth v. City of Cincinnati 
 
 3 Wilson v. Acree (Tenn. Sup.), 37 S. (Ohio), 29 N. E. Rep. 274. 
 W. Rep. 90; Remington v. Millerd, I R. 7 Boston v. Lecraw, 17 How. (U. S.) 
 
 I. 93; Thayer v. Boston, 19 Pick. 426; Phipps v. State, 7 Blackf. (Ind.) 
 (Mass.) 511; Talbot v. Grace, 30 Ind. 312; Bigelow v. Hilleman, 37 Me. 52; 
 389; Green v. Oakes. 17 111. 249; Smith Russell v. State, 3 Coldw. (Tenn.) 119. 
 v. State, 3 Zab. (N. J.) 130, 712. See also 8 Ely v. Parsons (Conn.), 10 Atl. Rep. 
 
 Onstott v. Murray, 22 Iowa 457, where 499; Peyton v. Shaw, 15 111. App. 192; 
 the conflict in the cases is reviewed. Reiner v. Stuber, 20 Pa. St. 458. 
 
 * See Sees. 511-540 and 671-690, supra. 
 
704- OPERATIONS PRELIMINARY TO CONSTRUCTION. 484 
 
 settled or frequented country than in that of wild, wood, waste, or unfre- 
 quented land. 1 
 
 Since dedication is the joint effect of an intention to appropriate land and 
 an acceptance by the public, no presumption of dedication can be made . 
 where circumstances exist which negative the presumption to dedicate. Any 
 act or course of action adopted by the owner with the evident intention of 
 rebutting the intent to dedicate will be, when established, conclusive to that 
 end. 2 A very common method is to put a gate or bar across the road to show 
 that control over the road is reserved and thus rebut the presumption of intent 
 to dedicate. 3 
 
 704. Who may Dedicate. A mere stranger without authority cannot, of 
 course, dedicate lands to public use any more than he can deed them. 4 The 
 dedication, in order to have any effect, must be made by the owner of the 
 land. 5 A person having a power of attorney to sell and convey lands has no 
 authority to make a dedication. Where an express power to dedicate is given 
 to an agent, the owner is estopped from denying the validity of the dedica- 
 tion. 6 A person occupying government land cannot dedicate a way across 
 these lands, nor can a way across it be acquired by prescription. 7 A mort- 
 gagor cannot make a good dedication as against the mortgagee, although as 
 to all other persons he is regarded as the owner of the mortgaged land. 8 But 
 if the mortgagee assents to the dedication, he will be bound by it, as will those 
 claiming under him. 9 Mere silence of the mortgagee, however, will not 
 prevent him or a purchaser at foreclosure sale from setting up his right to the 
 property dedicated by the mortgagor. 10 There can be no dedication during a 
 tenancy, however long continued, unless from the fact of notice or otherwise 
 of the concurrence by the tenant in the dedication. n A married woman, though 
 she cannot convey her estate, may have a dedication' of a right of way over it 
 presumed against her. 12 A trustee may make a valid dedication of the trust 
 lands unless the dedication be inconsistent with the object of the trust. 13 A 
 
 1 Wyman v. State, 13 Wis. 663; Worth 6 Wirt v. McEnery, 6 Am. & Eng. 
 v. Dawson, i Sneed (Tenn.) 59; Harding Corp. Cases 105; U. S. v. Chicago, 7 
 v. Jasper, 14 Cal. 643; State v. Thomas How. (U. S.) 185; Brown v. Manning, 6 
 (Del.), 4 Harr. 568. Ohio 298. 
 
 2 Herhold et al. v. City of Chicago, 6 7 Smith v. Smith, 34 Kans. 293. 
 
 Am. & Eng. Corp. Cases 119; Batch- 8 2 Smith Lead. Cas. 95; Detroit v. Rail- 
 elder v. Wakefield, 8 Cush. (Mass.) road Co., 23 Mich. 173. 
 243; Knowles v. Nichols, 2 R. I. 198; 9 Gentleman v. Soule, 32 111. 271; Bush- 
 Carpenter v. Gwynn, 35 Barb. (N.Y.) 395. nell v. Scott, 21 Wis. 451. 
 
 3 State v. Strong, 25 Me. 297; Proctor 10 City of Moberly v. McShane, 7 Am. 
 v. Lewiston, 25 111. 153. & Eng. Corp. Cases 405. 
 
 4 Bushnell v. Scott, 21 Wis. 457; Kyle "Davis v. Stephens, 7 Carr. & Payne 
 
 v. Logan, 87 111. 67. 570; Schenely v. Com., 36 Pa. St. 29; 
 
 6 Hoole v. Attorney-General, 22 Ala. State v. Atherton, 16 N. H. 203; 83 Am. 
 
 190; Post v. Pearsall, O Wend. (N. Y.) Dec. 264. 
 
 in; Irwin v. Dixon, 9 How. (U. S.) 10; 12 Schenely v. Com. ,36 Pa. St. 29; Ward 
 
 Lee v. Lake, 14 Mich. 12; Leland v. v. Davis, 3 Sandf. (N. Y.) 50*2; Todd v. 
 
 Portland, 2 Oreg. 46; Baxter v. Taylor, Railroad Co., 19 Ohio St. 514. 
 
 i Nev. & M. 13; Fisk v. Havana, 88 111. 13 Rex v. Leake, 5 B. & Adolph 469; 
 
 208. Prudden v. Lindsley, 29 N. J. Eq. 615. 
 
485 DEDICATION TO PUBLIC OF RIGHTS IN LAND. 705. 
 
 corporation may make a valid dedication unless such act be inconsistent with 
 the charter and objects of the corporation. 1 
 
 The parties to a dedication are the dedicator and the public. The right 
 or easement dedicated inures immediately to the public and is limited and 
 defined only by the wants of the community at large. 2 Where land is dedi- 
 cated by a common-law dedication and there is no municipal body with 
 authority to make a formal acceptance of the same, an acceptance by the 
 public by actual use of the property 'dedicated and for the uses for which the 
 dedication was made will be sufficient. 3 
 
 705. Effect of Dedication. When lands have been dedicated to the public 
 and the public has enjoyed the use of the easement dedicated, and rights have 
 been acquired by individuals- or by the public by virtue of such dedication, 
 the former owners are precluded from revoking the dedication. 4 Dedication 
 will preclude the party making the appropriation from reasserting any right 
 over the land, at least as long as it remains in public use, although there 
 never was a grantee capable of taking the fee. 5 Where a street has been 
 dedicated to the public by the owner of the fee, and where it has been used as 
 a public street for a number of years, the dedicator cannot close the street 
 because of the non-performance of an oral condition imposed at the time the 
 street was opened. 6 Where land is dedicated to the public for a particular 
 use, the dedicator retains all rights not inconsistent with the particular public 
 use granted. 7 After land has been dedicated as a public street usually, the 
 title may not be acquired by adverse possession however long or in what 
 manner the land is held. 8 * 
 
 In a case where there is a variance between the plat and survey of a town- 
 site the lines actually run must control, and these lines are conclusive against 
 the purchaser. 9 A dedication of a portion of land for a private alley is a 
 dedication of it to the use of the persons who shall thereafter become owners 
 of the lots included in the plat, but not to the use of owners of land situated 
 elsewhere. 10 Where an easement in lands is dedicated to public use, the public 
 has no right in the land inconsistent with such use, and cannot convey it 
 away. 11 A bona fide purchaser, without notice, of lands previously dedicated 
 
 1 Macon v. Franklin, 12 Ga. 239; Haynes v. Thomas, 7 Ind. 38; Leffler v. 
 
 Wright v. Victoria, 4 Tex. 375; Green v. Burlington, 18 Iowa 361. 
 
 Canaan, 29 Conn. 157; Canal Co. v. 5 Kennedy v. Jones, n Ala. 63; Adams 
 
 Hull, i Man. & Gr. 392; Boston v. Le v. Saratoga' R. Co., n Barb. (N. Y.) 414. 
 
 Craw, 17 How. (U. S.) 420; State v. 6 Port Huron v. Chadwick, 52 Mich. 
 
 Woodward, 23 Vt. 92. 320. 
 
 'Cincinnati v. White, 6 Pet. (U. S.) 7 Stevenson v. Chattanooga, 4 Am. & 
 
 431; Post v. Pearsall, 22 Wend. (N. Y.) Eng. Corp. Cases 503. 
 
 425; State v. Wilkinson, 2 Vt. 480; Wil- 8 City of Visalia v. Jacob, 6 Am. & 
 
 Hams v. Society, i Ohio St. 478; Ken- Eng. Corp. Cases 115. 
 
 nedy v. Jones, n Ala. 63. 9 Hoist v. Streitz, 16 Neb. 249. 
 
 3 Maywood Co. et al. v. Village of 10 Cihak v. Kleke, 17 111. App. 124. 
 
 Maywood (111.), 5 N. E. Rep. 866. " Pomeroy v. Mills, 3 Vt. 279; Alves v. 
 
 4 Mayor v. Franklin, 12 Ga. 239; Henderson, 16 B. Mon. (Ky.) 131. 
 
 * See Sees. 534 and 682-685, supra. 
 
706. OPERATIONS PRELIMINARY TO CONSTRUCTION. 486 
 
 to public use acquires a good title. 1 Dedication by a city of a portion of 
 water-front for public use, as a free dock, is merely the grant of an easement, 
 and the right of entry and possession, subject to the easement, remains in the 
 city. 2 Where land is dedicated for purposes which are strictly public there 
 cannot be a dedication to a limited portion of the public, but the dedication 
 must be to the public generally. 3 
 
 Where one who has offered to dedicate land for a public street conveys 
 such land before his offer is accepted, the conveyance operates as a revocation 
 of the offer; 4 but where one dedicates land for public streets by platting it 
 into lots and streets and filing map thereof he does not, by acts showing 
 revocation of dedication before acceptance as to some of the streets, revoke 
 the entire original dedication. 5 The death of the owner is a revocation of a 
 proffered dedication of streets, and an acceptance thereafter by the village 
 gives it no rights in the streets. 6 
 
 706. Acceptance of Easement Dedicated. A dedication may be complete 
 so as to conclude the dedicator and those claiming under him, without any 
 acceptance on the part of the public. Where the dedication has been made 
 under a statute and the requirements of the statute complied with, no accept- 
 ance by the public is necessary. 7 In order, however, to charge the muni- 
 cipality or local district with the duty to repair, or make it liable for damages 
 for injuries because it allowed a street or highway to be or remain out of 
 repair, there must be an acceptance of the dedication, which acceptance must 
 be made by the public or the authorized public authorities. 8 The acceptance 
 need not be made immediately upon the offer of the dedicator to give the 
 public a certain use of his lands, but may be made at any time during the 
 continuance of the gift and before the tender is withdrawn. 9 
 
 The decisions are not uniform as to whether the acceptance may be made 
 by the public or whether it must be made by the proper authorities. The 
 English rule seems to be that if there has been an acceptance by the public 
 there need be no acceptance by the parish. 10 In the United States the rule 
 does not seem to be settled, but the weight of authority seems to establish the 
 doctrine that the dedication of a highway must be accepted by the proper 
 
 1 Schuman v. Homestead, I Cent. Rep. 571; Jordan z/.City of Chenoa (111. Sup.), 
 
 914. 47 N. E. Rep. 191; Gedge, etc., v. Com- 
 
 2 San Francisco v. Calderwood, 91 Am. monwealth (Ky.), 9 Bush 61; Kennedy 
 
 Dec. 542. v. City of Cumberland (Md.), 9 Atl. Rep. 
 
 8 Trerice v. Barteau, 54 Wis. 99. 234 [1886]; Cincinnati v. White, 6 Pet. 
 
 4 City of Chicago v. Drexel (111.), 30 (U. S.) 431; Noyes v. Ward, 19 Conn. 
 N. E. Rep. 774. 250:* State v. Trask, 6 Vt. 355. 
 
 5 Eckerson v. Village of Haverstraw, 9 Simmons v. Cornell, I R. I. 519; Baker 
 39 N. Y. Supp. 635. v. Johnson, 21 Mich. 319; Crockett v. 
 
 6 People v. Kellogg, 22 N. Y. Supp. 490. Boston, 5 Cush. (Mass.) 182. 
 
 7 Baker v. St. Paul, 8 Minn. 491. 10 Rex v. Leake, 5 B. & Adolph. 469; 
 8 Brigantine v. Holland Trust Co. (N. Canal Co. v. Hall, i Mam. & Gr. 392; 
 
 J. Ch.), 35 Atl. Rep. 344; Wheatfield Rex v. Lyon, 5 Dow. & Ry. 499; Regina 
 v. Grundman, 164 111. 250; Alton v. v. Patrie, 30 Eng. Law & Eq. 207. 
 Meeuwenberg (Mich.), 66 N. W. Rep. 
 
487 DEDICATION TO PUBLIC OF RIGHTS IN LAND. 7O7. 
 
 authorities charged with its repair. 1 To constitute a dedication of lands to 
 the public there must have been an acceptance thereof by the public, which 
 may be manifested by use or the expenditure of public money in the improve- 
 ment of the land; but a mere occasional user of a highway, mostly by persons 
 traveling on horseback, without any work being done upon the road, on 
 which underbrush is allowed to grow up so as to render the road nearly im- 
 passable, is not sufficient to constitute an acceptance. 3 Evidence that streets 
 dedicated to a city were kept open and used as public passways, and that the 
 city graded and graveled them, is sufficient to establish an acceptance. 3 If 
 the need for a public alley, at the time of its dedication, be small, slight 
 evidence of acceptance by use of the public is sufficient. 4 
 
 Where a landowner files a map of a number of blocks owned by him, on 
 which one block is marked " Central Park," circulates copies of the map, and 
 states in an advertisement, and announces through an auctioneer, while sell- 
 ing the adjacent blocks, that such a block is reserved for a park, actual 
 acceptance is not requisite to complete the dedication, since acceptance will 
 be presumed from the benefit arising from the dedication. 5 
 
 There is no established standard by which the use necessary to determine 
 an acceptance by the public may be measured and declared to be sufficient. 
 A use which would naturally follow from the character of the place and the 
 settlement of the community is sufficient. 6 The principle that acceptance by 
 the required authorities may be presumed from long user by the public has 
 been accepted, in many cases, as one method by which such acceptance may 
 be legally shown. 7 Unless the method of acceptance by the proper local 
 authorities be prescribed by statute no particular or formal proceedings to 
 establish an acceptance are necessary; I he acceptance may be implied in case 
 of a road by any acts which recognize the road as a public highway. 8 
 
 707. Non-user of Right Dedicated. The early doctrine of the common 
 law established the principle that when a dedication had been made there 
 could be no abandonment or loss of the right dedicated by mere non-user on 
 the part of the public. More recent decisions, however, have departed from 
 
 1 Hobbs v. Lowell, 19 Pick. (Mass.) 81 Cal. 70. And see Reid v. Board of Ed. 
 405; Dillon on Mun. Corp., 505; Os- of Edina, 73 Mo. 295 [1880]; Eureka, 
 wego v. Canal Co., 2 Selden (N. Y.) 257; City of, v. Croghan, 19 Pac. Rep. 485 
 Requa v. Rochester, 45 N. Y. 129; [1889]; Buffalo, City of, v. Delaware, L. 
 Kelly's Case, 8 Gratt. (Va.) 632; Blodget & W. R. Co., 39 N. Y. Supp. 4. 
 
 v. Royalton, 14 Vt. 288. 6 Winslow v. City of Cincinnati, 6 Ohio 
 
 2 Ro'senberger v. Miller, I Mo. App. N. P. 47. 
 
 Rep. 640. 7 Curtissz/. Hoyt, 19 Conn. 154; Muz- 
 
 3 Smith v. City of Buffalo, 35 N. Y. zey v. Davis, 54 Me. 361; Oswego v. 
 Supp. 635; City of Abilene v. Wright, 46 Canal Co., 6 N. Y. 257; Hemphill v. Bos- 
 Pac. Rep. 715; Orriel v. City of Ft. ton (Man.), 8 Cush. 195; Manderschild v.. 
 Worth (Tex.), 32 S. W. Rep. 443; People Dubuque, 29 Iowa 73. 
 
 v. Underbill, 23 N. Y. Supp. 388. 8 Green v. Convon, 29 Conn. 157; Gibbs 
 
 * Taraldson v. Town of Lime Springs v. Larrabee, 37 Me. 506; Detroit v. Rail- 
 
 (Iowa),6oN. W. Rep. 658. road Co., 23 Mich. 173; Parsons v. Trus- 
 
 5 Archer v. Salinas City (Cal.), 28 Pac. tees, 42 Ga. 529. 
 
 Rep. 839, distinguishing People v. Reed, 
 
7 8 ' OPERATIONS PRELIMINARY TO CONSTRUCTION. 488 
 
 the strictness of this rule. J Where land has been dedicated to the public, the 
 dedicator holds such land subject to the easement granted; but when the 
 public has not exercised its right for a long space of time and it is evident 
 that the public has abandoned the use of the land, then it is held that the 
 right of the public is extinguished and the owner holds the land free from the 
 easement. 2 
 
 Where land was dedicated ' ' for a city school provi4ed the city or com- 
 munity do, within the time of five years from this date, respectively improve 
 the same/' and no improvements were made during that time, it was held 
 that the title did not pass from the proprietor, and that the land was subject 
 to seizure by creditors of the proprietor. 3 Land dedicated to public use for 
 school purposes reverts to the dedicator upon its abandonment for such 
 purposes. 4 
 
 Where a city acquires rights in a street by dedication, its rights will be 
 barred by non-acceptance and non-user on its part, and by the adverse posses- 
 sion of such premises by private persons and those through whom they claim. 5 
 But where a town-site company filed a plat with a square thereon designated 
 as " Seminary Square/' and sold and conveyed lots from its plat, and, until 
 it went out of existence, never exercised any control over the square, and it 
 was always treated as public ground, and for twenty years was not assessed, 
 the fact that it had been vacant for that time did not bar the board of educa- 
 tion from taking possession when a necessity for its use for educational 
 purposes occurred. 6 
 
 Where land was clearly dedicated for a street, it was not necessary that it 
 should be accepted by the public or used for that purpose within any limited 
 time, in the absence of a condition to that effect; and hence mere lapse of 
 time of twenty-three years, without acceptance or user, was held not to con- 
 stitute, an abandonment. 7 
 
 In Texas it has been held that by the abandonment of a road as a high- 
 way, the land covered by the highway, according to the civil law, became 
 vacant public domain, subject to entry, and did not belong, as at common 
 law, to proprietors whose lands were bounded by the road. 8 
 
 708. Limits and Qualifications, Property dedicated to the use of the 
 public may be said to be restricted to the use for which it was intended to be 
 dedicated. This rule has been construed, however, to include such uses as 
 are consistent with or necessary to the principal use. 9 
 
 5 Knight v. Heaton, 22 Vt. 480; Hillory * School Dist. of Johnson Co. v. Hart, 
 
 v. Walker, 12 Veasey 139; Beardslee v. 28 Pac. Rep. 741. 
 
 French, 7 Conn. 125. 5 City of Edwardsville v. Barnsback,66 
 
 8 Cooper v. Detroit, 42 Mich. 584; Fair- 111. App. 381. 
 
 field v. Williams, 4 Mass. 427; U. S. v. 6 Wilgus v. Board of Com'rs (Kan.), 38 
 
 Harris, i Sumner 21; Railroad Co. v. Pac. Rep. 787. 
 
 Patch, 28 Kan. 470; Neville Road Case, 8 7 Baltimore, City of, v. Frick (Md.), 33 
 
 Watts (Penn.) 172; Barclay v. Howell, Atl. Rep. 435. 
 
 6 Pet. (U. S.) 498. ' 8 Mitchell v. Bass, 33 Tex. 259. 
 
 8 Kemper v. Collins, II S. W. Rep. 245 9 Warren v. Grand Haven, 30 Mich. 24; 
 
 [1889]. Bayard v. Hargrove, 45 Ga. 342; City v. 
 
489 DEDICA TiON TO PUBLIC OF RIGHTS IN LAND. 709. 
 
 Where land was dedicated and marked on a town plat " Market Square/' 
 it was held that this fact did not so conclusively show the intention of the 
 owner that it should be used for market purposes as to defeat the dedication 
 if the town failed to use it for that purpose. 1 A dedication of land to the 
 public for a highway may be made subject to a right to designate a portion 
 thereof for railroad purposes ; and when such portion has been designated and 
 devoted to railroad purposes the public use will be suspended, and remain 
 suspended so long as such portion is devoted to such railroad purposes. 2 
 The presumption in regard to a street, in the absence of direct evidence, is 
 that the public has acquired an easement for highway uses only in the land 
 embraced by the street. A dedication of land for street purposes does not 
 authorize the legislature to permit the construction of a steam railroad with- 
 out making compensation to the owner of the fee. 3 * 
 
 If dedicated property be used for purposes other than those intended by 
 the dedicator and for which the dedication was made, then not only the dedi- 
 cator but any property owner will have a remedy in equity to prevent the 
 wrongful use and to enforce the proper use. 4 
 
 When property is once dedicated to the use of the public a municipal 
 corporation or other trustee for the public cannot extinguish such public use 
 or alienate the land, nor can such property be made liable for the debts of a 
 municipality. 5 
 
 709, Instances of Dedication. Dedication is a subject for consideration 
 with surveyors, engineers, and landscape architects in the performance of 
 their professional duties. The last named especially delight in beautiful 
 parks, beaches, and other public features, and it is a simple matter to sperad 
 their plans and dreams upon paper to the delight of the landowner. No 
 doubt such features are attractive to home-seekers and real-estate prospectors, 
 but all parties should understand that when lots are sold or purchased with 
 such features set forth it is business and not a dream nor remote possibility, 
 but that the owner is irrevocably bound by such plan, and that he may not 
 thereafter use for private purposes the land designated for such features. 6 f 
 
 The use of the proposed streets to describe land conveyed by the land- 
 owner raises a presumption at least of a dedication of the streets so long as 
 the deed stands unreformed. 7 A sale of lots according to a plan showing 
 
 Hinkson; 87 111. 587; Price v. Thompson, Newport (Ky.), 12 B. Mon. 538. 
 
 48 Mo. 361 ; Rutherford v. Taylor, 38 Mo. 5 Price v. Thompson, 48 Mo. 363; Alton 
 
 315; Warren v. Lyons, 22 Iowa 351. v. Co., 12 111. 60; Church v. Hoboken, 33 
 
 1 Scott v. Des Moines. 64 Iowa 438. N. J. L. 13; Board v, Edson, 18 Ohio St. 
 
 2 Avers v. Penn. R. Co. (N. J.), 3 Atl. 221; Seebolt v. Shitler, 34 Pa. St. 133; 
 Rep. 885. Warren v. Lyons, 22 Iowa 351; Brooklyn 
 
 3 Fanning v. Osborne (N. Y.), 3 Cent. Park Comm'rs v. Armstrong, 45 N. Y. 
 Rep. 453. 234; New Orleans v. United States, 10 
 
 * Price v. Church, 4 Ohio 515; Hardy v. Pet. (U. S.) 662. 
 
 Memphis (Tenn.), 10 Heisk. 127; Harris 6 Evans v. Blankenshirm (Ariz.), 39 
 
 v. Elliott, 10 Pet. (U. S.) 25; Carter v. Pac. Rep. 812. 
 
 City of Portland, 4 Oreg. 339; County z/. 'White v. Tide-water Oil Co. (N. J. 
 
 * See Sees. 756-780, infra. \ See Sec. 703, supra. 
 
79- OPERATIONS PRELIMINARY TO CONSTRUCTION. 490 
 
 them to be on a street implies a grant or covenant to the purchaser that the 
 street shall be forever open to the use of the public, and operates as a dedica- 
 tion thereof. 1 It will, as between the grantor and grantee, amount to an 
 irrevocable dedication of the street; 2 and other cases hold it operates not only 
 in favor of those who buy from the donor, but also in favor of all who pur- 
 chase in the general plan of the locality when the way was located. 3 
 
 If, however, in every deed or lease made by the owner a clause be inserted 
 to the effect that the reference to the street is intended solely for the purpose 
 of description, and is not intended to be a dedication of it for the public use 
 or as a public highway, there will be no dedication of the street; 4 and the fact 
 that the street was graded, paved, and curbed, and that lots had been sold 
 and leased bounding on the street, and that houses had been built and leased 
 fronting thereon, and that the gas company ran its pipes through the street to 
 light these houses and erected city gas-lamps, and that various vehicles drove 
 over the street to accommodate the residents of the houses, will not alter the 
 case. If the owners maintain visible obstructions across one end of a street, 
 while the public is using the remainder, and purchasers of abutting lots are 
 told that the street is a private way, though lots be sold according to an 
 unrecorded plat on which the strip involved was designated as a street, it will 
 not, it seems, amount to a dedication. 5 
 
 The mere fact that a public building is set back several feet from the front 
 boundary of the lot, 6 or that a railroad company fails to fence its right of way 
 and permits a portion of the public to cross it at a certain place, 7 or that the 
 public has used its wharves and the city has lighted them, 8 or that an owner 
 of land, in fencing the same, left a strip along a section-line from 8 to 12 feet 
 wide, which he permitted the public to use, does not show an intention to 
 dedicate any land within his inclosure. 9 
 
 Mere permissive user of a way is insufficient to establish a dedication. 10 
 The fact that the owner of vacant and uninclosed land makes no dissent to 
 the public's traveling over it in a certain route does not show an intention to 
 dedicate. 11 
 
 Ch.), 33 Atl. Rep. 47; Gt. Northern Ry. way is evidence tending, in connection 
 
 Co. v. St. Paul (Minn.), 63 N. W. Rep. with other facts, to prove it. Neal v. 
 
 96. Hopkins (Md.), 39 Atl. Rep. 322 [1898]. 
 
 1 Quicksall v. Philadelphia, 177 Pa. 7 Vicksburg. etc., R. Co. v. Monroe 
 301. (La.), 20 So. Rep. 664; Brunswick, etc., 
 
 2 New York, etc., R. Co. v. South Am- R. Co. v. Waycross (Ga.), 17 s - E. Rep. 
 boy (N. J. Sup.), 30 Atl. Rep. 628. 674. 
 
 3 ' Wilson v. Acree (Tenn.), 37 S. W. 8 Buffalo v. D., L. & W. R. Co. (Sup.), 
 
 Rep. 90. 39 N. Y. Supp. 4. 
 
 4 Baltimore v. Fear (Md.), 33 Atl. Rep. 9 Oyler v. Ross (Neb.), 66 N. W. Rep. 
 
 637. 1099. 
 
 6 People v. Sperry (Cal.), 4 Pac. Rep. lo Wils6n v. Acree (Tenn. Sup.), 37 S. 
 
 723. W. Rep. 90. 
 
 6 Baker v. Squire, i Mo. App. Rep. n Tutwiler v. Kendall (Ala.), 21 So. 
 
 683. Yet while not in itself a dedication, Rep. 332. 
 the moving back of a fence from a high- 
 
CHAPTER XXXVI. 
 EASEMENTS. RIGHTS OF WAY IN GENERAL. 
 
 711. Rights ofWay How Created. Rights of way are usually created 
 by deed or grant by the owner of the land. In case of an express grant for a 
 consideration it assumes, of course, the regular form, and there is little that 
 can be said about it except in the interpretation of its terms. Rights of way, 
 however, are also frequently created by reservations of certain rights and 
 privileges to the grantor when he parts with his other interests In the property. 
 A reservation, in a deed, of a right of way ' ' over the east lot to and from the 
 wood lot " was held definite in connection with the fact that a natural and 
 well-defined road existed at the time. 1 
 
 Rights of way created by an agreement between a person and his grantor 
 that they will lay out certain streets and highways, and that each party and his 
 grantees are to have free access to, and the use of, such streets or roads, are 
 not easements personal to such person, but are appurtenant to the land which 
 he owns. 2 
 
 A reservation in a deed of "a reasonable right of way across the land " 
 conveyed does not entitle the owner of the dominant estate to inclose a right 
 of way with fences. 3 A contract providing that the several abutting owners 
 who have an easement in a private road shall keep it private and in good 
 repair does not require them to erect fences along the line of the road in front 
 of their respective estates. 4 
 
 If the owner of a tract of land has built a private way over one part of it 
 to another as a means of egress and ingress to and from a public highway, 
 which private way is apparent, continually used, and reasonably necessary to 
 the use and enjoyment of the lands to which it is constructed, and also adds 
 materially to its value, and if he conveys by deeds of the same date the tracts 
 of land in two parts to his two children, one part being that portion of the 
 tract over which the way'passes, then the one will take his part subject to 
 
 1 Wells v. Tollman (Sup.), 34 N. Y. Rep. 590; Moffitt v. Lytle (Pa.), 30 All. 
 Supp. 840. Rep. 922. 
 
 2 Valentine v. Schreiber (Sup.), 38 4 Sachs v. Cordes, n Ohio Cir. Ct. 
 N. Y. Supp. 417. Rep. 145. 
 
 'Sizer v. Quinlan (Wis.), 52 N. W. 
 
 491 
 
? 1 3- OPERATIONS PRELIMINARY TO CONSTRUCTION. 49 2 
 
 such way as an easement, and the other will enjoy the uninterrupted use of 
 the same. 1 
 
 712. Rights of Way the Subject of a Grant. An easement of a right of 
 way over land, 2 or of a right to maintain a dam over a portion of the land, is 
 an incumbrance upon the land. 3 It is immaterial that the grantee knew when 
 the deed was made that the dam was so maintained. 4 
 
 A right of way over the land of another is an interest in lands, and can 
 only be created by grant, either by deed or by prescription implying a grant. 5 
 A deed of "a parcel of land for the purposes of a road" conveys only an 
 easement. 6 
 
 A grant to A and B, their heirs and assigns, of the right to erect, main- 
 tain, and enjoy a wharf on land under water belonging to the state, conveys 
 a fee in the land under the wharf. 7 
 
 An agreement between plaintiff and his grantor that they should lay out 
 certain roads along and across their adjoining premises, and that each party 
 thereto should have free and unrestricted right of access to the said roads, is- 
 equivalent to an express grant of right of way to plaintiff. 8 An easement 
 cannot be enlarged beyond the terms of the grant. 9 
 
 An instrument which does not describe the land on which the easement is 
 to be imposed is insufficient to create one. 10 If the location and limits of a 
 private way reserved in a deed are not specified, it will be construed to mean 
 a reasonably convenient and suitable way; and parol evidence of the 
 topography of the premises, and of the comparative benefit and injury to each 
 party of routes proposed, is admissible to place the court in the light of the 
 circumstances under which the way was reserved. u A burden analogous to 
 an easement, as a right of way, may be created in an estate for a fixed period 
 by the lessee or owner of the estate, and such right of way will be protected 
 by the courts. 12 
 
 A deed giving the grantee a right to erect bathing-houses on abutting land 
 of the grantor, and to enter thereon and to use such houses undisturbed at 
 any time, creates an easement in the grantee over such abutting land. 13 
 
 713. Maintenance of Right of Way over Another's Land. The owner 
 of land subject to a right of way is not required to keep it in repair, 14 and 
 
 1 Baker v. Rice (Ohio), 47 N. E. Rep. Rep. 914. 
 
 654 [1897]; Meredith v. Frank (Ohio), 47 8 Valentine v. Schreiber (Sup.), 38 
 
 N. E. Rep. 656. N. Y. Supp. 417. 
 
 2 De Roachemont v. Boston, etc., R. 9 McCabe v. Hood (Cir. Ct.), I O. C. D. 
 
 Co. (N. H.), 15 Atl. Rep. 131 [1888]. 292. 
 
 3 Huyck v. Andrews (N. Y.), 20 N. E. 10 Nunnelly v. Southern Iron Co. 
 
 Rep. 581 [1889]. (Tenn.), 29 S. W. Rep. 361. 
 
 * Huyck v. Andrews (N. Y.), 20 N. E. "Gardner v. Webster (N. H.), 15 Atl. 
 
 Rep. 581 [1889]. Rep. 144 [1888]. 
 
 5 Long v. Mayberry (Tenn. Sup.), 36 12 Newhoff z/.'Mayo (N. J.), 23 Atl. Rep. 
 
 S. W. Rep. 1046; Mumford v. Whitney, 265. 
 
 13 Wend. 380 [1836]. 1S Eckert v. Peters (N. J. Ch.), 36 Atl. 
 
 6 Wason v. Pilz (Oreg.), 48 Pac. Rep. Rep. 491. 
 
 701. u Nichols v. Peck (Conn.), 39 Atl. Rep. 
 
 7 Roberts v. Brooks (C. C.), 71 Fed. 803 [1898]. 
 
493 RIGHTS OF WAY IN GENERAL. 7*5- 
 
 whenever an easement is to be enjoyed through artificial means or appliances, 
 the owner of the servient estate is not bound to keep such appliances in order 
 unless that duty is imposed by the contract. 1 
 
 A promise by a grantor that the grantee might have a road over the 
 grantor's premises if he fenced such road was held not a dedication of the land 
 covered by the road, though the grantee did fence it. 2 A deed to a person, 
 his heirs and assigns, for the sole purpose of an alley to be used in common 
 with the owners of other property adjoining, conveys only an easement and 
 dedicates the land for use as an alleyway. 3 , A reservation in the deed of a 
 right of way over land does not destroy the fee in the grantee, but only 
 burdens the land with an easement of a right of way. 4 
 
 714. Rights of Way Appurtenant to Land. A deed conveying land 
 expressly bounded by the side of a highway, the fee of which is in the grantor, 
 impliedly grants an easement of light, air, and access in the adjoining half of 
 the highway, of which the grantor cannot, after the road is discontinued, 
 deprive the grantee. 5 The deed need not include any part of the street, and 
 the grantee's right of way in such street is not affected by the fact that its. 
 lines are changed, by commissioners afterwards appointed to lay out streets, 
 so that a space is left between the lot-lines and the line of the street estab- 
 lished by the commissioners. 6 The grantee has a right to have a street kept 
 open, though it did not previously exist except on maps, and though the 
 grantor, before making the deed, told the grantee that he did not intend to- 
 give him the easement. 7 
 
 When land is platted by the owner into lots, blocks, streets, and alleys, 
 and lots are sold by him with reference to the plat, the purchasers acquire a. 
 right of way in the streets, etc., and may require them to be kept clear of 
 obstructions as appertaining to the lots. 8 
 
 Where a right of way is granted to a company, which has been purchased 
 and acquired from a grantor, the easement of the right of way is appurtenant 
 to the land, and the company has no right to permit any other parties to use 
 such way. 9 
 
 715. Implied Rights of Way by Necessity. Implied grants of right of 
 way across land are looked upon with jealousy, construed with strictness, and 
 
 1 Bryn Mawr Hotel Co. v. Baldwin, 12 6 Nichlas v. Keller (Sup.), 41 N. Y. 
 Montg. Co. Law Rep. 145. Supp. 172. 
 
 2 Cunningham v Hendricks (Wis.), 62 7 Kenyon v. Hookway (Sup.), 41 N. Y. 
 N. W. Rep. 410. Sup. 230, 17 Misc. Rep. 452; Ford v. Har- 
 
 3 Pellishier v. Corker (Cal.), 37 Pac. ris (Ga.), 22 S. E. Rep. 144; Garstang v. 
 
 Rep. 465. City of Davenport (Iowa), 59 N. W. Rep. 
 
 *Moffitt v. Lytle (Pa.), 30 Atl. Rep. 876; Haight v. Littlefield (N. Y. App.), 
 
 922. 41 N. E. Rep. 696. 
 
 6 Holloway v. Delano (Sup.), 18 N. Y. 8 Field v. Barling (111.), 37 N. E. Rep. 
 
 Supp. 704; Holloway v. Southmayd 850. But see Mahler v. Brumder (Wis.), 
 
 (N. Y. App.), 34 N. E. Rep. 1047; Barbour 66 N. W. Rep. 502. 
 
 v. Lyddy (Cir. Ct.), 49 Fed. Rep. 896; * Hoosier Stone Co. v. Malott (Ind.), 
 
 Fitzgerald v. Barbour (C. C. A.), 55 Fed. 29 N. E. Rep. 412. 
 Rep. 440. 
 
7 I 5- OPERATIONS PRELIMINARY TO CONSTRUCTION. 494 
 
 are not favored except in cases of strict necessity. 1 It is not merely a matter 
 of convenience. If the grantor has another mode of access to his land, how- 
 ever inconvenient, he cannot claim a way by implication in the land conveyed, 
 though he may have had the use of a way over it to a public highway at, 
 and a long time before, the conveyance, and of which fact the grantee had 
 notice at the time. 2 
 
 A person who buys land accessible to a public road is not entitled to a 
 way of necessity to another road across other lands of the grantor, although 
 it may be a shorter distance and the first road may be merely a dirt road, while 
 the other is a rock road. 3 No right of way by necessity exists in behalf of land 
 which borders on the sea, over which access to it can be had, the sea being a 
 public way in itself. 4 
 
 When an owner of two adjoining tracts of land has conveyed one of the 
 tracts to another and there is no access to the one which he has kept except 
 over the land so conveyed, a reservation of a right of way will be implied from 
 the necessity of the case. 5 If a grantee has no access to his land except over 
 other lands of the grantor or as an alternative by passing over the lands of a 
 stranger, he has an implied grant of a right of way over the grantor's land as 
 an incident to the purchaser's occupation and enjoyment. 6 A party who ia 
 entitled to a way of necessity over certain land cannot be deprived of his right 
 to it by an offer of a private way over any other lands owned either by himself 
 or others. 7 
 
 A grant of land which has no outlet to the street except over the grantor' & 
 lot carries with it, from necessity, a right of way over such lot. 8 There is 
 an implied reservation of a right of way to the grantor and those claiming 
 under him so long as the necessity for the way exists. 9 
 
 A decree establishing in a grantee a way of necessity over his grantor's 
 land is erroneous so far as it adjudges that the way be opened " for public 
 use and travel." 10 
 
 The way implied from necessity is the nearest way or the way most easily 
 
 ' accessible to the highway over the grantor's land; u but it is confined to the 
 
 surface of the grantor's adjoining land: it does not include a right of way 
 
 iHildreth v. Googins (Me.), 39 Atl. N. E. Rep 854; Pleas v. Thomas (Miss.), 
 
 Rep. 550 [1898]. 22 So. Rep. 820 [1897]. 
 
 2 Meredith v. Frank (Ohio), 47 N. E. 6 Jones on Easements, 298. 
 
 Rep. 656 [1897]. 7 Ritchey v. Welsh (Ind.). 48 N. E. Rep. 
 
 3 Vossen v. Dautel (Mo.), 22 S. W. 1031 [1898]; Palmer v. Palmer, 150 N. Y. 
 
 Rep. 734; Field v. Mark (Mo.), ^28 S. W. 139. 
 
 Rep. 1004; Lankin v. Terwilliger (Oreg.), 8 Kruegel v. Nitschmann (Tex. Civ. 
 
 29 Pac. Rep. 268. App.), 40 S. W. Rep. 68. 
 
 *Hildreth v. Googins (Me.), 39 Atl. 9 Fritz v. Tompkins (Sup.), 41 N. Y. 
 
 Rep. 550 [1898]; Kingsley v. Goulds- Supp. 985. 
 
 borough Ld. Imp. Co., 86 Me. 279. 10 Kruegel v. Nitschmann (Tex. Civ. 
 
 6 Willey v. Thwing (Vt.), 34 Atl. Rep. App.), 40 S. W. Rep. 68. 
 
 428; Boyd v. Woolwine (W. Va.), 21 S. E. u Osborn v. Wise (Eng.), 7 Cor. & P. 
 
 Rep. 1020; Miller v. Richards (Ind.), 38 761. 
 
495 RIGHTS OF WAY IN GENERAL. 716. 
 
 under the surface even where an underground way would be much more 
 convenient for the grantee. 1 
 
 Where a party sells two adjoining tracts of land and one can have access 
 to a public highway only by passing over the other of said tracts, it creates a 
 right of way of necessity. 2 If, in settlement of an estate, a farm was conveyed 
 to one heir, excepting a small piece thereof, which was at the same time con- 
 veyed to two other heirs for use as a private cemetery, the conveyance carries 
 with it by necessity, and as a part of the grant, a right of way to the cemetery 
 lot over the remaining part of the farm. 3 
 
 A right of way by necessity over the land of another ceases when the 
 necessity ceases, and where there is another way than the one in question it 
 cannot be a way of necessity; yet where the occupants of land have from time 
 out of mind used a way over the land of another, under a claim of right, as a 
 way of convenience merely, and not as a way of necessity, their use of the way 
 cannot be disturbed. 4 
 
 The right of way by necessity is confined to the grantor's lands. The fact 
 that one's land is completely surrrounded by the land of another does not of 
 itself give the former a way by necessity over the land of the latter, where 
 there is no unity of ownership. 5 However, the right of a grantee of the state 
 to a way by necessity has been held not to extend over state lands which 
 entirely surround the grant. 6 
 
 A right of way will be limited to such uses as were contemplated in the 
 grant and such as are a benefit to the land to which the way is appurtenant. 
 A reservation of " a suitable wagon road or crossing ' ' under a tract of land 
 granted to a railroad company for its tracks, "so as to enable grantor to travel 
 and cross freely between his land on each side of the granted premises," does 
 not entitle the grantor's privies of estate to lay therein oil-pipe lines for the 
 conveyance of petroleum, since that is no benefit to the lands to which the 
 way is appurtenant. 7 
 
 There are other ways of necessity or privilege, as when one's property has 
 been cast upon the land of another by Providence or an act of God. In some 
 states and under some circumstances rights of way are given as by necessity 
 as right of ingress and egress by a tenant to gather and market crops which he 
 has planted or to which he may be entitled. 8 
 
 716. Change of Location of Right of Way, An owner of land subject 
 to an easement of way cannot without the consent of the person having the 
 
 ^earne v. Coal Creek Min. & Manfg. 41 Atl. Rep. 856 [1898]. 
 Co. (Tenn.), 18 S. W. Rep. 402. 6 Pearne v. Coal Creek Min. & Manfg. 
 
 2 Rogerson v. Shepherd, 10 S. E. Rep. Co. (Tenn.), 18 S. W. Rep. 402. 
 
 632. 7 United States Pipe-line Co. v. Dela- 
 
 3 Palmer v. Palmer, 150 N. Y. 139, 44 ware, L. & W. R. Co. (N. J.), 41 Atl. 
 N. E. Rep. 966, reversing 24 N. Y. Supp. Rep. 759 [1898]. 
 
 613. 8 Brown v. Leath (Tex.), 42 S. W. Rep. 
 
 4 Benedict v. Johnson (Ky.), 42 S. W. 655, lessee of mortgagor v. a purchaser 
 Rep. 335 [1897]. at foreclosure sale. 
 
 5 Ellis v. Blue Mt. Forest Ass'n (N. H.), 
 
?l6. OPERATIONS PRELIMINARY TO CONSTRUCTION. 496 
 
 easement change the location of the way. 1 When the right of way has once 
 been established it is not extinguished by the opening of another way by the 
 owner unless the other party expressly assents to such change. 2 The course 
 of a right of way acquired by prescription is no more subject to variation by 
 parol agreement or by acts and conduct than if created by deed. 3 
 
 Where the owner obstructs the right of way and opens another way 
 instead, which, after some objection by the owner of the right of way, is at last 
 adopted and used by him, only nominal damages can be recovered in the 
 absence of proof of actual damage. 4 Where the parties execute a deed for the 
 declared purpose of changing the location of a right of way, such indenture 
 will not be construed as abridging or enlarging the extent of the easement 
 originally granted unless such purpose clearly appears from the whole 
 instrument. 5 
 
 Under the Georgia code, one who has had a private right of way over 
 another's land for two years and another right of way for five years, and has 
 at the owner's request abandoned the first one, he cannot tack possession of 
 the strips so as to claim an easement for seven years by prescription. 6 A pre- 
 scriptive right of way over another's land cannot be acquired without showing 
 a defined line of travel. 7 
 
 Where a right of way has been used and occupied under a contract and 
 license given to the selectmen of a town by the owner of land, the town 
 cannot acquire a right of way by prescription over the land even though 
 the contract was not authorized by the town. If the selectmen represented 
 that they had authority to enter into the agreement, and license was granted 
 relying upon such representation, no right to the use of such road would be 
 acquired until the owner was notified that the town was not using the right 
 of way by virtue of the license; provided, however, that the town's use of the 
 way was not inconsistent with the agreement, and that the owner believed 
 that the town was using the way in pursuance of the agreement. 8 
 
 A grantee of a way of definite width is not restricted to the mere right of 
 passage over the natural surface of the land within the boundaries of the way, 
 but can construct over the entire width a road suitable for the convenient 
 enjoyment of the grant. 9 Where all the owners of the easement of a way of 
 definite width have constructed through the middle of the way a narrower 
 road of an agreed grade, material, and surface, without stipulating that such 
 road shall not thereafter be widened, a subsequent widening of such road by 
 
 1 Many v. Port Reading R. Co. (N. J. 6 Peters -v. Little (Ga.), 22 S. E. Rep. 
 
 Ch.), 33 Atl. Rep. 802. 44; Totel v. Bonneyfoy (111.), 14 N. E. 
 
 a Palmer v. Palmer, 150 N. Y. 139. Rep. 687 [1888]. 
 
 'Nichols v. Peck (Conn.), 39 Atl. Rep. 7 Bushy v. Santiff (Sup.), 33 N. Y. Supp. 
 
 803 [1898]. 473- 
 
 4 Fitzpatrick v. Boston & M. R. Co., 84 s Deerfield v. Conn. R. Co. (Mass.), n 
 
 Me. 33. N. E. Rep. 105 [1887]. 
 
 5 Rotch v. Livingston (Me.), 40 Atl. 9 Rotch v. Livingston (Me.), 40 Atl. 
 
 , 426 [1898]. Rep. 426 [1898]. 
 
497 RIGHTS OF WAY IN GENERAL. 
 
 any easement owner to the full width of the way, with the same grade, 
 material, etc., is a reasonable exercise of his right. 1 
 
 That only a portion of a street which has been dedicated and accepted as 
 a public street is opened up does not divest or impair the right of the public 
 to open and use the remaining parts whenever the exigencies of public travel 
 and wants require it. 2 The traveling public has a right to use every portion 
 of the pavement, and to presume that there are no dangerous impediments 
 unprotected, and that the street is in a reasonably safe condition. 3 
 
 717. Obstructing a Right of Way, To maintain an action for obstruct- 
 ing a way, actual damages need not be proven, nor is it necessary to prove 
 that the plaintiff wished or attempted to use the way while it was obstructed. 
 Such an action may be maintained without first demanding that the obstruc- 
 tion be removed. 4 
 
 In Pennsylvania, in the absence of special damages equity will not inter- 
 vene to abate a nuisance arising from the obstruction of a highway. 5 
 
 The owner of the servient tenement has a right to maintain movable bars 
 or a swinging gate in a right of way over his land possessed by another if they 
 do not unreasonably interfere with the enjoyment of the easement. The 
 usual and necessary inconvenience involved in descending from a wagon and 
 opening a gate and closing it after driving through is not an unreasonable 
 obstruction of or a hindrance to the free use of a right of way over land. 6 
 
 Where a right of way had been created and described as 'the way as then 
 established, which was sixteen feet wide and had been used for a long time 
 and was well marked, it was held that the owner of the servient estate could 
 not build his fences inclosing the path in a straight line so as to change the 
 course of the way. Such a fence was held to be an obstruction of the right 
 of way. 7 
 
 Though an owner of even a fractional part of a way may object to 
 a partial obstruction thereof, he. is not entitled to relief in equity where it 
 does not appear that such obstruction interfered with his use of the way. 8 
 
 Where a plaintiff has without serious objection permitted a neighbor to 
 erect a building which encroaches upon his easement in a private way and has 
 for nine years acquiesced in such encroachment together with other parties 
 interested, a court may properly refuse to order the removal of a portion of 
 the building to remove such encroachment. 9 
 
 If an abutting owner set a post on the edge of the highway, though it be 
 
 1 Rotchz/. Livingston, supra. 6 Kohler z/. Smith, 3 Super. Ct. (Pa.) 
 
 2 London & S. F. Bank v. Oakland (C. 176, 39 W. N. C. 359. 
 
 C.) f 86 Fed. Rep. 30. 7 Calvert v. Weddle (Ky.), 44 S. W. 
 
 ' Louth v. Thompson (Del.), 39 Atl. Rep. 648 [1898]. 
 
 Rep. noo [1897]. 8 Bentleyz/. Root(R. I.), 32 Atl. Rep. 
 
 4 Collins v. St. Peters (Vt.), 27 Atl. Rep. 918. 
 
 425- 9 Green v. Richmond (Mass.), 29 N. E. 
 
 6 Phila., etc., R. Co. v. Phila., etc., Ry. Rep. 770; Duer v. Doherty, 26 Pittsb. 
 
 Co., 6 Pa. Dist. Rep. 487. Leg. J. (N. S.) 104. 
 
OPERATIONS PRELIMINARY TO CONSTRUCTION. 498 
 
 put there to protect the public from an insecure sewer which he had con- 
 structed in the street at that point, he is liable to a traveler who is injured by 
 such obstruction. 1 
 
 An owner of land abutting upon a public highway, who has set out a 
 hedge and shade-trees which encroach some five feet within the line of the high- 
 way, may have an injunction to restrain a supervisor of roads from removing 
 the shade-trees and hedge if it appear that they do not obstruct the road or 
 prevent its necessary improvement. 2 
 
 A grantor loses the right of way he has reserved over land in common with 
 the grantee when he has been excluded by the grantee by a structure of a 
 permanent character on most of the granted premises and fencing the rest, 
 this being acquiesced in by the grantor. 3 
 
 If a person construct a ditch across a public highway, he is bound to 
 restore the highway at his own expense, and to keep it in good repair whether 
 the ditch cuts the highway or street within or without the city limits. The 
 building of a culvert by an authorized officer in a highway which is traveled 
 more or less and which he has authority to work is sufficient to show an 
 acceptance of such a highway. 4 
 
 718. Erection of Awnings, etc,, in a Street. Frequently in cities there 
 are ordinances prohibiting the erection of awnings and other constructions 
 over or under the sidewalks or other parts of the street. Such ordinances have 
 been held valid and have been upheld by the courts even to the extent of deny- 
 ing a contractor who has erected such an awning the right to recover for his 
 la.bor and materials. 5 
 
 In some cities the erection of awnings is permitted by license of the city 
 council or board of aldermen; and if an awning be erected without such 
 license and in violation of the ordinances of the city, the fact that the awning 
 does no injury will not prevail if the awning is a purpresture. 6 A city council 
 has not the power to grant any part of a street to any person for a private use 
 to the exclusion of the public, and a permanent structure for a private use 
 upon the street is a nuisance. Authority to a person to erect an awning in a 
 street by a city council is a mere license which may be revoked at any time by 
 the city. 6 
 
 Without express legislative authority a city has not the right or power to 
 grant a right to erect and perpetually maintain awnings, etc., over the side- 
 walks and the streets, and no lapse of time will render the license to erect 
 
 1 Gunther v. Draubauer, 38 All. Rep. Rep. 287. 
 
 33. 5 Wait's Engin. and Arch Jurisp., 76; 
 
 2 Crismon v. Deck (la.), 51 N. W. Hibbard v. Chicago (111.), 5o N. E. Rep. 
 
 Rep. 55- 256. 
 
 3 Botsford v. Wallace (Conn.), 37 Atl. 6 Hibbard v. Chicago, supra. 
 Rep. 902. 
 
 *Devoe v. Smeltzer (la.), 53 N. W. 
 
499 RIGHTS OF WAY IN GENERAL. 721. 
 
 such awnings irrevocable. 1 A Delaware case held that abutting property 
 owners have a right to place upon the streets of a city doorsteps, stepping- 
 stones, hitching-posts, and awning-posts, which every one is bound to take 
 notice of at his peril. 2 
 
 719. Easement of Drain over or through Land. A water-pipe leading 
 from a driven well in the yard to a sink in the kitchen and ending in a pump, 
 by which water is habitually drawn for domestic purposes, the well and pipe 
 being completely hidden from view, forms an apparent and continuous ease- 
 ment which passes with the dwelling when it alone is conveyed by the owner 
 of both the yard and the house. 3 A reservation by the grantor, his heirs or 
 assigns, of the right to use a certain drain across the premises creates an 
 easement of drainage over the land conveyed, which is not nullified because 
 the drain in fact ends in a cesspool on the land. 4 
 
 When a drain is enlarged by joint expense of the dominant and servient 
 estate, this act does not so destroy its identity as to destroy the easement. 5 
 
 One who owns land subject to a right of way over a part thereof may plow 
 that part of the land over which the right of way is located if by so doing he 
 does not interfere with the use of the right of way. 6 
 
 A parol agreement that a party may erect a dam upon the lands of another, 
 not for temporary but for permanent purposes, as for water-power for the use 
 of mills and other hydraulic works, is void, being within the statute of frauds. 7 
 
 720. Bridges a Part of Highway. Public bridges are usually held to be 
 a part of the highway. The terms are not convertible; therefore an indictment 
 for neglect to repair a bridge must be by the term " bridge " and not " high- 
 way." A bridge over a stream crossing a city street is a part of the street. 8 
 
 A bridge constructed by a private corporation whose charter authorizes it 
 to build and maintain a toll-bridge and approaches thereto for public travel 
 and accommodation is, from the time it is open to the public, a portion of the 
 highway, subject only to a right to take tolls for its use. 9 
 
 The approaches to a bridge built by a board of chosen freeholders for the 
 purpose of continuing a highway across a stream, if built within the lines of 
 the highway, is a part of the highway. 10 
 
 721. When Occupation of Public Ways may be Authorized. City 
 authorities have no right or power to give public property to a private person 
 to inclose and occupy as his own. An interesting case arose in the city of 
 
 1 Augusta v. Burum (Ga.), 19 S. E. Rep. 437. 
 
 Rep. 820. See Fields/. Barling (III.), 37 6 Moffitt v. Lytle (Pa. Sup.), 30 Atl. 
 
 N. E. Rep. 850. Rep. 922. 
 
 2 Louth v. Thompson (Del.), 39 Atl. 7 Mumford v. Whitney, 13 Wend. 380 
 
 Rep. noo [1897]. [1836]. 
 
 3 Larsen v. Peterson (N. J. Ch.), 30 8 Chicago v. Powers, Adm'r., 42 111. 169. 
 Atl. Rep. 1094; Weber v. Miller, 9 Ohio 9 Pittsburg, etc., Ry. Co. v. Point 
 Cir. Ct. Rep. 674. Bridge Co. (Pa.), 30 Atl. Rep. 511. 
 
 4 Jones v. Adams (Mass.), 38 N. E. 10 Willets Mfg. Co. v. Board (N. J.), 40 
 Rep. 437. Atl. Rep. 782. 
 
 5 Jones v. Adams (Mass.), 38 N. E. 
 
721. OPERATIONS PRELIMINARY TO CONSTRUCTION. 5<X> 
 
 Troy, N. Y., where the common council passed a resolution the effect of 
 which was that H. Street in that city was reduced to a width of forty feet by 
 taking a strip from the east side of the street and by giving the owner of the 
 adjoining premises permission to inclose this strip within his grounds. This 
 strip was inclosed by a permanent wall in 1853 an d so remained until 1874, 
 when the city authorities, under resolution of the common council, revoked 
 the former resolution and directed the opening of the street to its original 
 width. The courts held that the common council had no authority to give 
 the adjoining owner permission to inclose a part of the street for his private 
 use, and that it could not transfer any title or extinguish the public easement 
 in the part of the street so inclosed. It was also held that the easement of 
 ^he public in the street had not been extinguished by adverse possession, 
 because the adjoining owner had held it under a license and his holding was 
 not, therefore, within the statute of limitations; and this was so held even 
 though the license was invalid. Furthermore, it was held that such an 
 encroachment upon a public highway could not destroy the public right or 
 take away the authority of the public officers to remove it. 1 
 
 Municipal authorities have no power to grant the use of a public highway 
 for the erection of private scales, such purpose not being a public purpose. 2 
 A building permit, issued by municipal authority, which authorizes the occu- 
 pation of a part of a public street as a depository for building materials, and 
 requires that proper lights be placed at night to indicate their location, does 
 not relieve the city from the duty of exercising a reasonable diligence to 
 prevent the holders of such a permit from occupying the street in such a way 
 as to endanger passers-by in their proper use of such street. 3 
 
 Acts done in the proper exercise of governmental powers and not directly 
 encroaching upon private property, although their consequences may impair 
 its use, are not a taking within the meaning of the constitutional provision 
 which forbids the taking of such property for public use without just com- 
 pensation therefor. 4 
 
 The construction of a bridge on one side of a street over a railroad cross- 
 ing, and the erection of a wall on the remaining street and sidewalk to 
 prevent a crossing at grade, do not constitute a taking of private property for 
 public use so as to entitle the owner of property abutting on such street out- 
 side of, but next to, the wall to recover for damages caused thereby. 5 
 
 A municipal corporation authorized by law to improve a street by 
 building on the line thereof a bridge over, or a tunnel under, a navigable 
 river incurs no liability for the damages unavoidably caused to adjoining 
 
 1 St. Vincent Asylum v. Troy, 76 N. Y. 635 [1878]. This was a case of a struc- 
 in. ture occupying a street and interfering 
 
 2 Berry-Horn Coal Co. v. Scruggs-Mc- with its use. 
 
 Clure Coal Co., 62 Mo. App. 93. 5 Talbot v. New York & H. R. Co., 151 
 
 'Cleveland v. King, 132 U. S. 295. N. Y. 155, 45 N. E. Rep. 382. 
 
 4 Transportion Co. v. Chicago, 99 U. S. 
 
501 RIGHTS OF WAY IN GENERAL. 7 21. 
 
 property by obstructing the street or the river, unless such liability be imposed 
 by statute. If the fee of the street is in the adjoining lot-owners, the state 
 has an easement to adapt the street to easy and safe passage over its entire 
 length and breadth. When making or improving the streets within its limits, 
 in the exercise of an authority conferred by statute, a city is the agent of the 
 state, and if it acts within that authority, and with due care, despatch, and 
 skill, is not at common law answerable for consequential damages. That 
 which the law authorizes cannot be a nuisance such as to give a common-law 
 right of action. 1 
 
 Under the laws of some states, subject to proper control and police regu- 
 lation, a railway company may occupy and pass over a street of a city without 
 the consent of the city authorities. 2 * 
 
 As the title of one owning land bounded upon a stream not navigable ex- 
 tends, under the common law, to the center of the stream, and as the state can 
 not take or damage such owner's property so situated without compensation, it 
 follows that the state cannot grant a charter to a railroad company to do the 
 same thing. Therefore if such a company, under its charter, erects a bridge 
 across such a stream, and the property of another bounded by the stream is 
 either taken or damaged thereby, a right of action exists in his favor; but such 
 party can only recover for damages which -are special to his property and not 
 for such as are identical to and shared by the public at large. 3 Where the 
 erection of a railroad bridge across a river in a city causes a permanent injury 
 or depreciation in the value of a lot in the immediate vicinity which is used 
 for dock purposes, such injury is a proper element of damages in a suit by the 
 owner against the company, and it is proper to allow the lot-owner to show 
 such damages by proving the value of his property before the erection of the 
 bridge and its value after, or, in other words, to prove how much less the 
 property would sell for in consequence of the building of the bridge. 3 
 
 The measure of damages to abutting property caused by the construction 
 of a railroad in a public street is the depreciation of the market value of the 
 property. 4 
 
 Where railroad companies which had rightfully maintained a railroad in 
 a street in front of plaintiff's premises were, in consequence of certain river 
 improvements, required by act of Congress to replace their bridge over said 
 river by a higher bridge, thus necessitating building an elevated railway struc- 
 ture in front of plaintiff's premises, which was provided for by state legislation 
 placing the matter under the supervision of certain public authorities, it was 
 held that the companies were liable to make compensation for injuries 
 
 1 Transportation Co. v. Chicago, 99 U. 'Chicago & P. R. Co. v. Stein, 75 111. 
 S. 635 [1878]. 41 [1874]- 
 
 2 State v. Davenport, etc., R. Co., 47 * Stewart v. Ohio River R. Co. (W. Va.), 
 Iowa 507 [1877]. 18 S. E. Rep. 604. 
 
 * See Sees. 756-770, infra. 
 
721. OPERATIONS PRELIMINARY TO CONSTRUCTION. $02 
 
 inflicted on plaintiff's property by reason of these changes in so far as they 
 involved an inconsistent and excessive street use over and above the user which 
 the companies had theretofore had in the street. 1 Where work is done by a 
 railroad company in a street under authority from the city, the company and 
 not the city is liable to lot-owners for injuries to their lots, and the fact that 
 city officers supervised the work is immaterial. 2 
 
 One who has a perpetual easement in one-half of an alley for the use of 
 its surface and the light and air above, and owns the title to the other half, 
 is entitled to compensation from a railway company that has built its elevated 
 tracks over and placed the pillars on the half of the alley, and projected the 
 superstructure over the entire portion of such half and a portion of the other 
 half. Such construction constitutes a taking of property to the extent of the 
 projection. 3 
 
 Where a complaint alleged that plaintiff owned the fee in certain land, 
 subject to an easement for street purposes; that, without his consent, one of 
 the defendants had built, and both were maintaining, a bridge and railroad 
 thereon, and just north of other land owned by plaintiff adjoining thereto; 
 that by so doing defendants were guilty of continuous trespass on plaintiff's 
 land; that to recover therefor would require a multiplicity of suits, and that 
 plaintiff had no adequate remedy at law, it was held that the complaint stated 
 facts authorizing an injunction. 4 
 
 In New Jersey it has been held that where an abutting owner owns the soil 
 in the street upon which his house is built he is entitled to bring an action 
 against a railroad company for building a depot in the street in front of his 
 land, and that suit should be brought in his own name; that the fact of his 
 owning lands bounded upon the street raises a presumption that he owns the 
 fee to the center of the street; and that while an individual cannot maintain 
 a suit to restrain a nuisance where he is injured only in such rights as are 
 enjoyed by him as one of the public, even though he is inconvenienced more 
 than other individual members of the community by the nuisance, yet in such 
 a case he can bring suit in his own name without 'an information being filed 
 for the public in the name of the attorney-general on behalf of the state. 5 
 
 ^alazar v. New York & H. R. Co. (N. Springer, 171 111. 170 [1897]. 
 Y. Sup.), 49 N. Y. Supp. 1065 [1897]. 4 Coatsworth v. Lehigh Val. Ry. Co., 48 
 
 2 Jordan z/. City of Benwood (W. Va.), N. Y. Supp. 511. 
 26 S. E. Rep. 266. 5 Higbee v. Camden, etc., Co., 19 N. J. 
 
 8 Metropolitan W. S. El. R. Co. v. Eq. 276 [1868]. 
 
CHAPTER XXXVII. 
 / 
 
 RIGHT OF WAY OF RAILROAD. 
 
 731. Character of Railroad Right of Way. A right of way is a right 
 held by a railroad company for railroad purposes in the land over which its 
 road is built. It sometimes denotes the land itself. The rights which a rail- 
 road may have in the land over which its right of way passes depend upon the 
 manner in which the right of way was acquired, whether by purchase, or by 
 grant, or by the exercise of the power of eminent domain. If acquired by 
 purchase or grant, they will be determined by the terms of the deed; if by 
 eminent domain (unless specially provided for otherwise by statute), the road 
 has only an easement, the fee remaining in the original landowner. 
 
 The property which a railroad takes in its right of way is usually deter- 
 mined by the charter or legislative act giving it the power of eminent domain. 1 
 It is competent for the state to appropriate the fee for the use of a railroad 
 upon payment of proper compensation. The legislature is the sole judge as 
 to what extent the owner's title should be extinguished for the public use. 
 The constitution of the state of Illinois forbids the condemnation of lands for 
 railroad right of way except to the extent of an easement. If not specified 
 in the grant or deed, the interest in a railroad right of way is the same whether 
 granted or condemned. 1 It is usually an easement in the land of others. As 
 such it is an incumbrance upon land and may constitute a breach of covenant 
 against incumbrances contained in the deed. The covenant is not released 
 by knowledge of both parties of the easement of a railroad company. 2 When 
 the charter provides that the company shall be seized and possessed of the 
 land, etc., it gives only the Tight of way, a power to acquire lands for its own 
 corporate purposes, and gives only such an estate as is necessary for the uses 
 of the railroad ; and in general a railroad company has no authority whatever 
 to use its right of way acquired by condemnation proceedings for any other 
 purpose than that connected with the proper construction, maintenance, and 
 operation of its road. 3 It has been held, therefore, that a road has no right 
 to take ice from a pond on its way; 4 nor to cut the grass growing thereon; 
 
 1 Smith v. Hall (la.), 72 N. W. Rep. cases cited. 
 
 427 [1897]. 3 19 Amer. & Eng. Ency. Law 840. 
 
 2 19 Amer. & Eng. Ency. Law 839, and 4 Julien v. Woodsmall, 82 Ind. 568. 
 
 503 
 
73 2 - OPERATIONS PRELIMINARY TO CONSTRUCTION. $04 
 
 nor to take sand for building a round-house; 1 nor to sell materials removed 
 while grading the road, though it may sell the road itself; 2 nor to build struc- 
 tures, machinery, etc., upon its way which are not necessary to the exercise 
 of the franchise. 3 However, the occupancy of a right of way by a railroad is 
 practically exclusive, and the owner of the servient estate can cultivate it only 
 by the company's consent. 4 
 
 Grants and charters of railroad companies are in the nature of public 
 franchises, and are for the public weal, and will receive a reasonable interpre- 
 tation, due regard being had to the magnitude, character, and general public 
 utility of the enterprise. 
 
 The term "right of way" has been held to embrace the land used as a 
 way for the road, and not such other grants as might be used for the con- 
 venience of the railroad, but not as a part of its way. 5 It usually includes 
 lands required for necessary side-tracks and turn-outs, and the improvements 
 thereon. 6 It is sometimes used to designate a mere right of crossing, but in 
 its application to a railroad company it is used to describe a strip of land 
 which the company appropriates for its roadbed. 7 
 
 A right of way for all purposes connected with the construction, use, and 
 occupation of a railway has been held not to give the right to take sand from 
 the way for use in building a round-house. 8 
 
 A railroad bridge becomes a part of the permanent structure of a railroad, 
 so much so that a mechanic's lien cannot be maintained for work performed 
 and material furnished fora bridge, as against liens created by prior mortgages 
 on the railroad. 9 
 
 732. Right of Way How Acquired. A legal right of way may be 
 acquired in three ways: (i) by deed or patent; (2) by condemnation proceed- 
 ings and payment of damages; (3) by prescription.* If a railroad company 
 enters upon land over which it has not acquired a right of way, it is a 
 trespasser, and an action of ejectment or a suit for damages may be main- 
 tained. The fact that a railroad company was permitted to enter and build 
 its road does not give it a right of way by estoppel. The owner may maintain 
 an action for damages, though he might be prevented from maintaining an 
 action of ejectment. When a company has secured the fee in the lands over 
 which its road is built, it has all the property rights of a natural person, and 
 therefore an exclusive right to its possession and enjoyment. In such case 
 
 1 Vermilye v. Chicago, etc., R. Co., 66 N. W. Rep. 550. 
 
 la. 606. 6 Pfaff v. Terre Haute, etc., R. Co., 106 
 
 2 Aldrich v. Drury, 8 R. I. 554. Ind. 144. 
 
 3 Lance's Appeal, 55 Pa. St. 16. 7 Keener z/. Union Pac. R. Co., 31 Fed. 
 
 4 Paxton v. Yazoo & M. V. R. Co. Rep. 128. 
 
 (Miss.), 24 So. Rep. 536 [1899]. 8 Vermilye v. Chicago, etc., R. Co., 66 
 
 5 Chicago Railroad Co. v. Paddock, 75 la. 606. 
 
 111. 616; Mercantile Trust Co. v. Atlantic 9 Cleveland C. & S. Ry. Co. v. Knicker- 
 
 & Pac. R. Co. (C. C.), 63 Fed. Rep. 910. bocker Trust Co. of New York, 86 Fed. 
 See Pinkum v. Eau Claire (Wis.), 51 Rep. 73. 
 
 * See Sec. 685, supra. 
 
$05 RIGHT OF WA Y OF RAILROAD. 733. 
 
 neither the original owner nor the public authorities have any right to build 
 below or above the railroad, as when it runs through a tunnel. 1 Having 
 acquired the fee the company may alienate the title. It may build upon the 
 land even though there are statutes prohibiting buildings on the right of way. 
 In short, the company enjoys the same right to exclusive possession as an 
 individual who owns the fee. If the right of way obtained by purchase or 
 otherwise be defective, and if the road be built and in operation, the act of 
 building and operating does not prevent title by condemnation proceedings. a 
 
 A deed which conveys " the right of way for a railroad, . . . and described 
 as follows: ' A strip of land forty feet wide, . . . and being nine hundred and 
 fifty-two feet in length/ " though in the usual form of a full warranty deed, 
 conveys an easement only, and not a fee. 3 A deed of railroad land "reserv- 
 ing and excepting " a strip four hundred feet wide, to be used for a right of 
 way or other railroad purposes, in case the line of said road, or any of its 
 branches shall be located on or over the same, does not operate as an excep- 
 tion of the strip from the grant, but merely as a reservation of a right of way 
 or easement in the land, and the title to the whole tract vests in the grantee 
 by virtue of the deed. 4 
 
 The ownership of a right of way is in the railroad company and not in the 
 owner of all its stocks and bonds. The latter may not maintain an action in 
 relation to the right of way. 5 A corporation created only for a limited time 
 may acquire the fee for its right of way. 
 
 733. Right of Way Secured by Purchase. A railroad company may 
 acquire its right of way by other means than by the assistance of the govern- 
 ment. It may by purchase from the landowner acquire all the rights neces- 
 sary to its operation. In some states the refusal of a landowner to sell for a 
 reasonable price is a necessary condition precedent to condemnation proceed- 
 ings. In some states foreign railroads will not be permitted to acquire a right 
 of way either by condemnation or by purchase. 6 
 
 The power to purchase land necessary to carry out the objects of a 
 corporation is always considered to be authorized unless such powers are 
 specially restrained by the charter or by statutory law. A right secured by 
 purchase carries with it the same rights, privileges, and exemptions which 
 attach when the right of way is secured by eminent domain. 
 
 Generally, all the obligations, duties, rights, and privileges which are 
 incident to the right of way obtained by condemnation proceedings are 
 acquired by a railroad company when it purchases its right of way and takes 
 a deed therefor. The same obligations exist as to fencing the line and as to 
 
 1 Junction R. Co. z>, Boyd, 8 Phila. * Biles v. Tacoma, O. & G. H. R. Co. 
 (Pa.) 224. And see Kellogg v. Malin, 50 (Wash.), 32 Pac. Rep. 211. 
 
 Mo.. 496. 5 Fitzgerald v. Mo. & Pac. R. Co., 35 
 
 2 19 Amer. & Eng. Ency. Law 844,845. Fed. Rep. 812. 
 
 3 Jones v. Van Bochove (Mich.), 61 N. 6 iq Amer. & Eng. Ency. Law 842. 
 W. Rep. 342. 
 
735- OPERATIONS PRELIMINARY TO CONSTRUCTION. 506 
 
 the construction of its road and the necessary culverts, embankments, etc., 
 and liability for damages due to negligent construction. Also the same 
 privileges exist, such as the right to cast smoke, cinders, etc., upon other parts 
 of the way, the removal of timber and -other obstructions, the right to lay 
 side-tracks, and all other rights which by implication are necessary to the 
 enjoyment of the right of way. 1 
 
 734. Grantor of Right of Way. If one convey a right of way, he should 
 be the owner of a fee. A mere equitable owner of an undivided interest in a. 
 possible reversion, or the holder of a contingent interest, has no power t^ 
 create a right of way. Attempts by the husband to grant rights of way with- 
 out the co-operation of the wife, and vice versa, and where there are dower and 
 homestead interests, require care and advice in regard to the law in the >i,u 
 or jurisdiction in which the conveyance is undertaken. Without doubt, if it 
 may be done, a husband or wife should join one with the other in executing 
 such deeds for right of way. It has been held that a life-tenant can grant a 
 right of way during his life. A tenant for a term of years is the owner of the 
 leased premises during the time of his tenancy. If a railroad company enter 
 upon leased premises under authority from the landowner, it is a trespass, and 
 he is liable to the tenants for damage to his rights, crops, etc. 
 
 735. Right of Way on Condition. Rights of way are frequently granted 
 upon a condition that certain things shall be done either precedent or subse- 
 quent to the conveyance. In such cases, if the conveyance be subject to a 
 condition precedent, as that certain structures shall be erected or certain 
 improvements made, the title to the land may be defeated by failure to 
 comply with such conditions. 2 If, however, the conditions named be illegal, 
 a reconveyance of the premises will not be decreed on account of a violation of 
 them. Whether a condition is precedent or subsequent to a vesting of title will 
 depend upon the intention of the parties, and that intention is to be gathered 
 f rom the terms of the conveyance and the nature of the whole transaction. 
 
 If the performance of a condition does not necessarily precede the vesting 
 of the estate, but may accompany or follow it, the condition will be considered 
 as subsequent. The law favors conditions subsequent rather than precedent 
 in all cases of doubt. For that reason, if a condition may be either a condi- 
 tion subsequent or a covenant, it will be treated as a covenant, and whether 
 or not a covenant runs with the land will depend upon its character and upon 
 well-known rules. Very frequent covenants in deeds of right of way for a 
 railroad are those concerning the location and erection of depots, build- 
 ings, fences, cattle-guards, and other structures. Such stipulations, in the 
 absence of a clear and express condition, are construed as mere covenants for 
 a breach of which the grantor may have a remedy in damages or a suit in 
 equity for specific performance. 3 
 
 1 19 Amer. & Eng. Ency. Law 842, 843. s 19 Amer. & Eng. Ency. Law 851. 
 
 2 19 Amer. & Eng. Ency. Law 847, 848. 
 
5O7 RIGHT OF WAY OF RAILROAD. 735- 
 
 Where a right of way was given, but on condition that a depot be located 
 at a certain point, an action for damages for the appropriation of land under 
 false pretences may be sustained when the depot and road have not been 
 located as agreed. 1 A covenant to build a side-track was held to have been 
 performed by the construction of a double main track. 2 
 
 If the condition precedent of a deed transferring a right of way be not per- 
 formed, the estate does not vest if the deed was placed in escrow to be delivered 
 when a depot should have been erected at a point designated, and if the depot 
 is not erected until a long time afterwards, and then by another company. 
 The first company to whom the deed was made out acquires no title to the 
 land either by deed or by adverse possession. 3 
 
 If a condition subsequent be broken, the grantor or his heirs may enter 
 and maintain ejectment against the company, or he may maintain an action 
 for damages or a suit to obtain specific performance. The right of re-entry 
 belongs only to the grantor or his heirs, and not to his assignees. 4 The 
 grantor may avail himself of the failure of the company to perform conditions 
 in a seasonable time, but if he allow the company to continue to make 
 improvements and expenditures permanent in character without protest or 
 objection, he may be estopped from taking advantage of such failure. 5 Thus 
 where a deed of a right of way was given on condition that the company 
 should, within a given time after completing the road, construct fences and 
 cattle-guards, which condition was not performed, and where the grantor did 
 not object when the company made extensive and permanent improvements 
 on the land, it was held that he was estopped from maintaining an action of 
 ejectment after having permitted the improvements to be made, though he 
 might have insisted upon the payment of damages as a condition precedent to 
 the building of the road. 6 
 
 If a landowner permit a railroad company to construct its road under an 
 understanding or contract for future payment therefor, he may not rraintain 
 either ejectment or trespass against the company after the road is built and 
 put in operation, though the price has not been paid. 7 
 
 Upon the facts shown, these cases would be unfair to the landowner. 
 In the former case cited, the railroad company was not to build fences and 
 cattle-guards until after the road was built, and therefore a breach of the 
 undertaking could not be claimed until after the improvements had been 
 made. In either case the landowner should have damages, if he could not 
 maintain an action of ejectment, unless he was guilty of such laches as would 
 
 1 Hubbard z/. Kansas City, etc., Co., 63 Rapids, etc., R. Co., 25 la. 371; Goodin v. 
 
 Mo. 68. Cine., etc., C. Co., 18 Ohio St. 169; Wash- 
 
 3 Purington v. Northern 111. R. Co., 46 burn on Real Property (4th ed.) 21. 
 
 111. 297. 6 Baker v. Chicago, etc., R. Co., 57 Mo. 
 
 3 Sioux City Co. v. Wilson. 50 la. 422. 265. 
 
 4 19 Amer. & Eng. Ency. Law 852. 7 McAulay v. Western Vt. R. Co., 33 Vt. 
 6 Ludlow v. New York, etc., R. Co., 12 311. 
 
 Barb. (N. Y.) 440; Taylor v. Cedar 
 
736- OPERATIONS PRELIMINARY TO CONSTRUCTION. $O8 
 
 make it unreasonable for him to recover. If the grant of a right of way be 
 absolute, it will not be defeated by a failure to comply with certain covenants 
 which form the consideration on which the grant was obtained, if no fault be 
 charged. A grant in consideration of one dollar and the further consideration 
 that the company will locate its road on the grantor's land was held not to 
 be a condition, but only a contract. 1 
 
 Where a railroad company succeeds to the right of another person or cor- 
 poration who has taken without license or process of law the land of an 
 individual for a right of way, and such company continues to use and occupy 
 the land, it must pay to the owner such damages as will fairly compensate 
 him. 
 
 The act of a contractor in seizing and using land for the purpose of con- 
 structing a railroad thereon cannot be considered as the act of an independent 
 contractor in a case where the company subsequently occupies and uses the 
 land so seized in operating its railroad. 2 
 
 736. Restrictions on Use of Right of Way. If the deed restricts the 
 time that the land shall be used for railroad purposes, the title reverts to the 
 grantor when it is no longer used for such purposes. 3 No forfeiture can be 
 claimed in such a case because the land is used for additional purposes, if it 
 be also used for the purpose stipulated. 4 
 
 A deed of land providing that if it be used for other purposes a certain 
 sum shall be paid in addition to the original price, upon which event the title 
 shall be absolute, does not create a qualified or determinable fee, but only a 
 condition subsequent. 5 If the conveyance do not restrict the use of the right 
 of way, there will be no reversion in the grantor. If the company be consoli- 
 dated with or merged into another company, which succeeds to all its rights, 
 franchises, etc., and which continues to operate the road, the right of way 
 does not determine and revert to the landowner at the end of the time for 
 which the original company was chartered. 6 
 
 The use of tracks for the storing of cars is not a use and operation as a 
 railroad, and a conveyance based upon the latter condition is of no further 
 effect when the track is used merely for storing cars. 7 
 
 The loss of a road to a company under a mortgage sale has been held not 
 an abandonment by the company. A railroad company may purchase its 
 right of way, and such contracts are like any other contracts, and in proper 
 cases a specific performance will be decreed. The damages for the breach of 
 such a contract may be recovered, and the measure is the difference between 
 the price agreed upon and that assessed in condemnation proceedings. A 
 
 1 East Line R. Co. v. Garrett, 52 Tex. 5 Bd. of Ed. v. Trustees, etc., 63 111. 
 
 133- 2 4- 
 
 2 Bloomfield R. Co. v. Grace (Ind.), 13 6 Miner v. N. Y. Cent., etc., R. Co., 123 
 N. E. Rep. 680 [1887]. N. Y. 242. 
 
 3 State v. Brown, 27 N. J. Law 13. 7 Hickox v. Chicago, etc., R. Co.. 78 
 4 McKelway v. Seymour, 29 N. J. Law Mich. 615. 
 
 321. 
 
509 RIGHT OF WAY OF RAILROAD. 739- 
 
 contract to convey a right of way confers no right to enter upon the land 
 against the owner's will. If entry be opposed, the company may resort to 
 equitable remedies to obtain possession of title. If there be a breach of con- 
 tract by a company, a landowner has a remedy in an action for damages. If 
 the company fail to comply with the provisions of its contract, the landowner 
 may have a lien on the portion of the roadway which the contract covers. A 
 contract for the exclusive right of way of a railroad has been held contrary to 
 the policy of the law and will not be upheld. 1 
 
 737. Rights of Way by Condemnation. The method of acquiring a right 
 of way by condemnation or by power of eminent domain is purely a statutory 
 process given by the sovereign power of the state through its legislature. It 
 may differ in the different states not only as to the ceremonies to be observed, 
 but also as to the powers granted. In every case the statute must be followed 
 strictly not only in the form and manner of making the application, but as to 
 all the preliminaries required by the act.* 
 
 738. Railroad Right of Way Acquired by Dedication and Prescription.-)* 
 A railroad right of way may be acquired, it seems, by dedication, but it 
 must be shown that the occupation or use was with the knowledge and 
 acquiescence of the landowner for the full period of time fixed by the law of 
 prescription or the statute of limitations. When a plat was executed and put 
 upon record explaining a railroad track and the words "depot of O. & R. 
 Railroad," it was held not to constitute a dedication of a lot to a railroad 
 company or to the public use. 2 
 
 A permit by a landowner to a railroad company to build upon his land 
 without charge on condition that it should construct ditches to carry off the 
 water was held to constitute a dedication of the water, and that the owner 
 could not declare the permit forfeited because the company failed to construct 
 proper ditches. \ 
 
 739. Widths of the Right of Way. The width of a right of way which 
 may be acquired by a railroad or other company by the exercise of its right 
 of eminent domain is usually fixed by statute. Proceedings in which more 
 land has been condemned than was authorized by the legislature have been 
 set aside entirely. 3 If a company seeks to condemn a right of way of greater 
 width than the statute has authorized, the necessity for such greater width 
 must be proven by the company who seeks to condemn it. 4 
 
 If the right of way be purchased, its wJdth will be determined by the terms 
 of the conveyance, and there seems to be no limit to the area which may be 
 acquired except when the limit is fixed by the charter powers to acquire lands. 
 
 1 19 Amer. & Eng. Ency. Law 858. Law 289. 
 
 2 Todd v. Pittsburg, etc., R. Co., 19 * Wisconsin Cent. R. Co. v. Cornell 
 
 Ohio St. 514; Daniels v. Chicago, etc.,R. Univ., 52 Wis. 537; Childs v. Cent. R. 
 
 Co.. 35 la. 129. Co., 33 N. J. Law 323. 
 
 State v, Hudson, etc., R. Co.,46N. J. 
 
 * See Sees. 825, 864, infra. \ See Sees. 683-686, supra. \ See Sees. 701-710, supra. 
 
74- OPERATIONS PRELIMINARY TO CONSTRUCTION. $10 
 
 In the absence of a specific description as to the width, it will be presumed 
 that the company may take the same width as is allowed by charter or statute 
 under which the road is built. 1 
 
 740. Rights of Way by License Implied Grants.* A landowner may 
 authorize entry upon his land for the purpose of constructing a line of rail- 
 road, or other way, or a telegraph line, or a gas-, oil-, or water-conduit, by 
 a, mere parol license, and until it is revoked this license affords to the grantee 
 the same protection which he or it would enjoy under a deed or after the 
 regular condemnation proceedings. When a person consents that a company 
 engaged in the construction of such lines may pass through his land, it is no 
 trespass for such company to enter for the purpose mentioned. 2 
 
 Such a license to do a particular act or series of acts upon another's land 
 is an authority which does not create any estate in the land. 3 It is simply a 
 privilege to be exercised upon the land, and therefore the statute of frauds is 
 held not to apply in such cases. 4 Such a parol license would therefore be 
 void as a grant of an easement or incorporeal hereditament. 5 
 
 A license to a railroad company to enter and lay its tracks gives the com- 
 pany permission to occupy the full width of the right of way authorized by 
 law. 6 A railroad company which constructs and operates its road by license 
 of a landowner is liable for negligence in the operation of its road, as for 
 injury to cattle. 7 
 
 741. Revocable Character of License.* Such a license is revocable, and 
 cannot protect a company from an entry by the landowner. 8 Generally a 
 license is revocable at the will of the licensor. Especially is this true in cases 
 where it was granted in ignorance or under a misrepresentation of the effect 
 of its exercise. 9 When a railroad company has entered upon land under a 
 license from the owner, and constructed its road, it has been held that it 
 cannot plead such license to an action for trespass for running its trains over 
 said land after the license has been revoked. The right of way is such an 
 interest in the land as cannot be acquired by license, but only in the manner 
 provided by the statute, that is, by deed duly executed and recorded. 10 
 
 A license may be revoked by a subsequent as well as an original owner, n 
 
 1 19 Amer. & Eng. Ency. Law 861. etc., Co., no Ind. 490. 
 
 2 Louisville, etc., R. Co. v. Thompson 7 Mathews v. St. Paul, etc., R. Co., 18 
 (Ky.). 18 B. Mon. 735. Minn. 434. 
 
 3 Cook v. Sterns, n Mass. 533. 8 Eggleston v. N. Y., etc., R. Co., 35 
 
 4 Houston v. Laffee, 46 N. H. 507; Barb. (N. Y.) 162 See Murdock v. Pros- 
 Mumford v. Whiting (N. Y.), 15 Wend. pect Park R. Co., 73 N. Y. 579, as to what 
 380; Blaisdell z/. Portsmouth, etc., R. Co., constitutes a parol license. 
 
 51 N. H. 483. 9 19 Amer. & Eng. Ency. Law 859. 
 
 5 Fort -v. New Haven, etc., Co., 23 10 Baltimore, etc., R. Co. v. Algire, 63 
 Conn. 214; Pierce on Railroads 131; 8 Md. 319; Hayes v. Richardson, I Gill & 
 Amer. & Eng. Ency. Law 694. J. (Md.), 366. 
 
 6 Hargiss v. Kansas City, etc., R. Co., n Foot v. New Haven, etc., Co., 23 
 
 loo Mo. 210; Campbell v. Indianapolis, Conn. 214. 
 
 * See Sees. 661-670, supra. 
 
$11 RIGHT OF WAY OF RAILROAD. 741. 
 
 unless such subsequent owner had notice of the license. 1 
 
 The courts have distinguished between an executory license and one that 
 is executed. The former, which has been created by parol, is revocable at the 
 will of the licensor. In some jurisdictions, after a license has been executed, 
 money expended, as when improvements have been made, and the parties 
 cannot be put in statu quo, then the license may not be revoked, and any 
 attempt to revoke it will be enjoined by a court of equity. The decisions do 
 not agree as to their policy in regard to the revocation of licenses, such as 
 arise in construction work. There seems to be a hopeless conflict, and the 
 best impressions will be obtained from cases decided. A number have been 
 given heretofore.* 
 
 If the license be to do a single act, it will be irrevocable after the act is 
 done, doubtless upon the ground that the act performed is frequently of 'such 
 a nature that it may not be undone. Licenses to do a particular act do not 
 in any degree touch upon the policy of the law which requires that bargains 
 respecting the titles of things in real estate shall be in deed or in writing. 
 There can be nothing more than an excuse for the act, which would otherwise 
 be a trespass. 2 
 
 A parol license to enter and connect the tracks of railroad companies 8 is 
 revocable even though valuable improvements have been made. A permit 
 to build a railroad over land was held not to have been revoked by the fact 
 that an agent of the owner from time to time claimed that the railroad com- 
 pany were trespassers. 4 Some of these cases are based upon the presumption 
 that when a man assents to the doing of an act his consent is contingent upon 
 its being done so as not to injure him. 5 
 
 Permission to build a road on one's land implies authority to use it after- 
 wards; and when a landowner allows the construction of the road on his land, 
 he is chargeable with knowledge that the road is of such a permanent charac- 
 ter that it cannot be well removed or abandoned. 6 One who has permitted a 
 railroad company to enter upon his land and construct its roadbed, track, 
 etc., has waived his remedy by injunction or action for the trespass, and is 
 confined to the statutory mode of obtaining compensation. 7 
 
 An owner who has not insisted on payment as a condition precedent to 
 the surrender of his land, nor attempted to impede the progress of the road- 
 making, thus inducing a railroad company to expend large sums therein, 
 cannot maintain ejectment on the ground of failure to prepay. 8 The owner 
 
 1 Campbell v. Indianapolis, etc., R. 425; Woods Railway Law 611. 
 
 Co., no Ind. 490; Masterson v. West End 6 Harlow z/. Marquette, etc., R. Co., 41 
 
 R. Co., 72 Mo. 342. Mich. 336. 
 
 2 Cook v. Stearns, n Mass. 536. 7 Milwaukee, etc., R. Co. v. Strange, 
 3 Richmond, etc., R. Co. v. Durham. 63 Wis. 178; Cassidy.^. Chicago, etc., R. 
 
 104 N. C. 658. Co.. 70 Wis. 441. 
 
 4 Harlow v. Marquette, etc., R. Co., 31 8 Provolt v. Chicago, etc., R. Co., 57 
 Mich. 346. Mo. 256; McAulay v. Western Vt. R. Co,, 
 
 5 Bankhardt v. Houghton, 27 Beav. 33 Vt. 311. 
 
 * See Sees. 661-670, supra. 
 
74 2 - OPERATIONS PRELIMINARY TO CONSTRUCTION. $12 
 
 is confined to an action for damages, or a suit for specific performance. 1 
 
 742. Obstructions to the Right of Way. A railroad company may cut 
 and trim trees or a hedge whose branches extend over its right of way. 2 A 
 suit will lie at the instance of a railway company for the removal of timber 
 standing in such proximity to its right of way as to endanger the safety of 
 passengers. 3 There can be no doubt as to these rights when the railroad 
 company owns the fee of its right of way ; and this is also true when it has only 
 a right of way, if the trimming of trees and hedge is desirable for the better 
 protection and operation of the railroad, as when they occasion dampness or 
 obstruct the view. 
 
 A railroad company is not bound to remove from its right of way a natural 
 growth of trees which shade and injure the crops upon the land of an adjoin- 
 ing owner, and also sap such land of its fertility, it not appearing that the 
 roots or branches of the trees penetrate or overhang said land. 4 
 
 Whenever property is needed by a railroad company to increase the safety 
 of its roadbed at points where it is unsafe at a particular time of the year, a 
 legal necessity arises for condemning the property. 5 
 
 743. Location of Railroad. By the act of incorporation of a railroad the 
 powers of the company to locate the route or to locate the railroad are defined 
 in diverse ways which may be classified under four headings, viz. : (i) where 
 the exact location of a railroad is prescribed by the charter or ordinance, as 
 in street railways; (2) where only the termini and general route are pre- 
 scribed, the details being left to the discretion of the company; (3) where 
 the determination of the general and particular location is left entirely to the 
 company, subject, however, to the approval of certain public authorities. 
 
 When discretion is allowed it must not be abused, and cannot be exercised 
 to build a road which differs entirely from that intended by the charter. The 
 exercise of the discretion granted will not be disturbed unless it is a plain case 
 of abuse or error. When it has been once exercised the power is exhausted, 
 and the location may not be changed without specific legislative authority. 
 The authority of a company to make changes will be construed strictly. The 
 rule, however, has not always been strictly enforced. It has been modified and 
 restricted and m some cases even denied. 6 
 
 744. Elements to Determine the Location of a Railroad. In determin- 
 ing the location of a railroad many things are to be considered. There is the 
 necessity of keeping strictly within the powers conferred by the charter. A 
 corporation being the creation of the law has no powers whatever except such 
 as are conferred or may be reasonably inferred in order to carry out powers 
 
 1 Provolt v. Chicago, etc., R. Co., supra. * Galveston H. & S. A. R. Co. /. 
 
 And see New Jersey, etc., R. Co. v. Van Spinks (Tex. Civ. App.), 36 S. W. Rep. 
 
 Syckle, 37 N. J. Law 496. 780. 
 
 ''Toledo, etc., R. Co. v. Green, 67 111. 5 Bigelow v. Draper (N. D.), 69 N. W, 
 
 199. Rep. 570 
 
 Louisville & N. R. Co. v. Johnson 6 19 Amer. & Eng. Ency. Law 826, 827. 
 (Ky.), 37 S. W. Rep. 844- 
 
513 RIGHT OF WAY OF RAILROAD. 745. 
 
 bestowed under the charter. Then there are the obligations and relations of 
 the company itself to the stockholders and bondholders. The company owes 
 certain contract obligations to the subscribers to its capital stock, which 
 would be affected if important departure from the location of the road were 
 made. Furthermore, a railroad company is a guasi-public corporation and 
 owes to the public certain duties, in the location and operation of the road, 
 which the laws have declared must be respected. 
 
 745, Discretion in Selecting a Route Not Definitely Fixed by Charter. 
 The interpretation of the language of charters in regard to the location of 
 railroads under the several clauses employed is interesting in that it suggests 
 what may be expected in the construction of charters using similar language. 
 A charter to construct a railroad in or near a city, thence to any part of a 
 town, authorizes the road to be located in such manner and time as may be 
 deemed convenient. 1 A general railroad act authorizing changes in the route 
 of railroads was held to be confined to the change of route, not of the termini. 2 
 Authority to construct a road beginning at a point on Lake Superior in the 
 state of Minnesota or Wisconsin westward to some point on Puget Sound was 
 held to give the company its choice as to a starting-point on Lake Superior. 3 
 
 Railroad charters that do not express anything to the contrary will be taken 
 to allow an exercise of discretion in the location of the route, so far as it is 
 incident to the ordinary, practical problems of surveying and to the nature 
 of the country, etc. 4 If only the two terminal points are designated and 
 there are several routes equally feasible, the most direct will be deemed to 
 have been contemplated; but if there is a difference in the feasibility of the 
 routes, a reasonable discretion will be allowed in the selection. 5 Authority 
 to extend a road fixes one terminus of the same and does not authorize the 
 construction of an independent road. 6 
 
 Authority to build a road by the most direct and least expensive route 
 will not permit a private individual to question the location after the road has 
 been located and built. 7 If the charter does not provide for the location of 
 the road, the company may locate it and its stations at such points as will 
 best serve public interest. 8 
 
 Authority to connect a road with any railroad constructed or to be 
 constructed at any point in the northern boundary of two counties was held 
 not to limit the terminus of the road to some point reached by one of the 
 other roads. 9 
 
 1 Boston W. P. Co. v. Boston, etc., R. R. Co., 3 Ind. 464. 
 
 Co. (Mass.), 23 Pick. 360. 6 Savannah, etc., R. Co. v. Shiels, 33 
 
 a 19 Amer. & Eng. Ency. Law 926, and Ga. 601; Bellville R. Co. v. Gregory, 15 
 
 cases cited. 111. 20. 
 
 3 Northern Pac. Ry. Co. v. Doherty 7 Cleveland, etc., R. Co. v. Speer, 56 Pa. 
 
 (Wis.), 75 N. W. Rep. 1079; Western St. 326. 
 
 Union R. Co. v. Smith, 75 111. 496 [1874]. 8 Frankfort, etc., T. Co. v. Phila., etc., 
 
 * Southern Minn. R. Co. v. Stoddard, R. Co. r 54 Pa. St. 345. 
 
 6 Minn. 150. 'Com. v. Crosscut R. Co., 53 Pa. St. 
 
 5 Newcastle, etc., R. Co. v. Peru, etc., 62. 
 
74-6. OPERATIONS PRELIMINARY TO CONSTRUCTION. 514 
 
 Where a railroad company has surveyed and marked its line through 
 plaintiff's land and he has conveyed to it a strip of ground " lying along and 
 including the established line of railway to be constructed by said company," 
 the deed refers only to the line as then surveyed, and not to a line that may 
 be thereafter established. 1 
 
 Authority to construct a railroad along a river does not authorize its con- 
 struction in or upon the river. 2 A mere enumeration of certain places in 
 designating the route of a road does not require it to be located through them 
 in the order named. 3 
 
 746. Discretion must be Honestly Exercised in Locating Road, In the 
 location of a railroad between points named, the company must have regard 
 for the advantage of the route as a route between the points prescribed, even 
 though the charter specified that the road be built " by such route as a special 
 company shall deem most expedient and advantageous." The interests of 
 the road and the public are to be considered, and not the personal aims and 
 advantage of individuals or of other corporations. An injunction will lie to 
 prevent the abuse of the discretion conferred by the charter. 4 
 
 747. Charter Authorizes but One Location of the Road. Authority "to 
 enter upon any land to survey, lay down, and construct its road," to appro- 
 priate land for "necessary side-tracks and a right of way over adjacent lands 
 sufficient to enable it'to construct and repair its road," has been held not to 
 authorize the company to appropriate a temporary right of way to be used as 
 a substitute for the main line while the latter was in course of construction. 5 
 
 When the location has once been decided upon it is usually held to be 
 fixed so that no change of location can be made without a special act of 
 legislature. Even when express authority was given "to vary the route and 
 change the location, after the first selection had been made, whenever a better 
 and cheaper route could be had, or whenever any obstacle to the continuation 
 of said location was found either by difficult construction or by difficulty in 
 procuring a right of way at a reasonable cost," it was held that authority was 
 not conferred upon the corporation to relocate its road after it had been com- 
 pleted, or to take private property for the uses of the road. 6 
 
 After the maps and plans have been filed as required by law and the land 
 has been viewed and damages assessed, the location may not be changed 
 except upon a new petition. 7 The power to lay double tracks is not exhausted 
 by the laying of one track, but may be exercised subsequently. 8 
 
 1 Owensboro, etc., R. Co. v. Barker 5 Currier v. Marietta, etc., R. Co., n 
 (Ky.), 37 S. W. Rep. 848. Ohio St. 228. 
 
 2 Stevens v. Erie R. Co., 21 N. J. Eq. ' v~* rhead v- .Little Miami R. Co., 17 
 259. Ohio 340. 
 
 3 Commonwealth v. Fitchburg R. Co. 7 Lance's App-al, 55 Pa. St. 16. 
 (Mass.), 8 Cush. 240. 8 Philadelphia, e:~ R. Co. v. Williams, 
 
 * 19 Amer. & Eng. Ency. Law 827, and 54 Pa. St. 103; Peopi^ Pass. R. Co. v. 
 cases cited; Wait's Engin. & Arch. Baldwin (Pa.), 37 Leg. Int. 424. 
 Jurisp., 84. 
 
515 RIGHT OF WAY OF RAILROAD. 75O. 
 
 Authority to construct a railroad from an incorporated city to a certain 
 point where freight and passenger depots are built does not preclude the com- 
 pany from extending its lines to a point beyond where the depots are located. 1 
 
 748. Effect of Change in Location on Subscriptions Paid or Pledged. 
 When a railroad company has received donations or other assistance from a 
 Tillage or its inhabitants and has engaged to locate its road through certain 
 places and to grant certain privileges in connection with the road, it cannot 
 afterwards change its location without making compensation to such parties. 2 
 Where subscriptions have been made to secure the location of a road through 
 a certain place, they are invalid if the location be changed. A note given to 
 aid the construction of a road cannot be recovered upon if the road be built 
 upon a different route without the consent of the maker of the note. 3 
 
 749. Exercise of Authority to Change Route of Road. Authority to 
 change the route of a road does not permit a change of the terminal points. 4 
 Permission to vary the route and change the location after selection does not 
 permit the relocation of a road and condemnation of land after the road has 
 been built. Power to change the location of tracks on account of difficult 
 construction and other causes should be exercised before the track is built. 5 
 
 The power to change is at an end when the change has once been made. 6 
 In some cases the power to make changes has been permitted where the com- 
 pany purchased the right of way instead of condemning it by eminent 
 domain. 7 Changes have been permitted by reason of the necessities of the 
 case, when no detriment accrued to the public 8 and before the road is 
 actually built. 9 
 
 750. Power to Change Location Limited to Necessities of Case. A close 
 study of the cases shows that the right to change a location has not been 
 denied where there was sufficient reason for the change. The court may 
 inquire into the necessities for the change, and if such necessities do not exist, 
 the change will be forbidden in justice to the stockholders of the company 
 and to the public. A railroad company should not be allowed to change its 
 location from motives of caprice or for the sake of private gain or convenience, 
 but it may be expected that changes will be permitted whenever the interests 
 and the convenience of the public are to be subserved, and where the accom- 
 plishment of the ends for which the road was built will be realized and a better 
 and more economical location can be selected. 10 Authority of a company to 
 
 of W. Pa. R. Co., 99 Pa. St. 6 Mason v. Brooklyn, etc., R. Co. (N. 
 
 155; Western Union R. Co. v. Smith, 75 Y.\ 35 Barb. 373. 
 
 111. 496 [1874]. 7 Mine Hill, etc., R. Co. v. Lippincott, 
 
 2 Chapman v. Mad River, etc., Co., 6 86 Pa. St. 486. 
 
 Ohio St. 119. 8 Atkinson v. Marietta, etc., R. Co. ,15 
 
 3 19 Amer. & Eng. Ency. Law 829. Ohio St. 21. 
 
 4 Atty.-Gen. v. West. Wis. R. Co., 36 9 Mahasha Co. R. Co. v. Des Moines V. 
 
 Wis. 466; Brigham v. Agr. Br. R. Co. R. Co., 28 la. 437. 
 
 (Mass.), I Allen 316. 10 19 Amer. & Eng. Ency. Law 830, and 
 
 5 Atkinson v. Marietta, etc., R. Co., 15 many cases cited. 
 Ohio St. 21. 
 
75 1 - OPERATIONS PRELIMINARY TO CONSTRUCTION. 516 
 
 select lands for its location is exhausted when the time limited in its charter 
 for the completion of the road has expired. A company is not required to 
 place its track in the center of its right of way, but may locate it in its dis- 
 cretion upon any part thereof. 
 
 751. Frier Location and Occupation of Right of Way. Lands already 
 appropriated or taken under public grants for one purpose may not be occu- 
 pied or taken for other purposes inconsistent with the use to which they have 
 first been put. This is true even though they be not specially excepted from 
 such subsequent grant or appropriation. Land acquired by one railroad 
 company under the right of eminent domain cannot, in absence of express or 
 necessarily implied statutory permission, be taken by another railroad com- 
 pany to which it would be convenient but not necessary. 1 
 
 Where one railroad company, duly authorized, has built its roadbed and 
 obtained its right of way and grounds for station-buildings, machine-shops, 
 side-tracks, etc., through a defile or canyon, the court will grant an injunc- 
 tion in its favor restraining another railroad corporation, authorized to build 
 to the same point, from going upon or interfering with the track or right of 
 way of the corporation first in possession until an adjudgment of rights can 
 be made by the court under the general railroad law of Montana. 2 One rail- 
 road corporation is not empowered to be the judge of the necessity of the 
 taking or using the roadbed or right of way built or secured by the other rail- 
 road company, but the necessity is a question for decision in the court of the 
 county in which the road is located. 3 
 
 When grants of a definite location are inconsistent one with the other, the 
 earlier one will prevail ; and if the selection of the route has been left to the 
 companies, the right to certain lines will be in the company which made the 
 location first. A railroad company is not bound to construct its road or lay 
 its track so as to be the least possible inconvenience to the owner of the land 
 over which the right of way passes. 4 
 
 A prior location prevails, and one company cannot by purchasing the land 
 and proceeding to lay its track deprive of its land another company which had 
 previously surveyed and staked out the line. 5 
 
 Where the conditions and circumstances attending the case are such that 
 but one location can be made, a court of equity may compel the locator and 
 owner of the route to allow another company the use of such location. Such 
 cases arise in ravines or canyons where the cost of constructing a parallel line 
 
 1 Barre R. Co.?/. Montpelier & W. R. 5 Sioux City, etc., R. Co. v. Chicago, 
 Co. (Vt.), 17 Atl. Rep. 923. etc., R. Co., 27 Fed. Rep. 770; Kanawha, 
 
 2 Revised Statutes Montana, p. 461, etc., R. Co. v. Glen Jean, etc., R. Co. 
 div. 5, art. 3, c. 15, sec. 309. (W. Va.), 30 S. E. Rep. 86 [1898]. And 
 
 3 Montana Cent. Ry. Co. v. Helena & see Coe v. N. J. Mid. R. Co. ,31 N. J. Eq. 
 R M R. Co. (Mont.), 12 Pac. Rep. 916 105. But see Joplin & W. Ry. Co. v. 
 fj887l. Kansas City, etc., Ry. Co. (Mo.), 37 S. 
 
 4 International, etc., R. Co. v. Pope, 62 W. Rep. 540. 
 Tex. 313- 
 
$17 RIGHT OF WAY OF RAILROAD. 75 2 
 
 would be so great as to forbid it. A third railroad along the Hudson River 
 would be, without doubt, a similar case. 1 
 
 The knowledge that these rights depend upon prior location of the line 
 induces rival companies to great activity to outstrip one another in the loca- 
 tion of their lines, and it frequently is the cause of sending surveying parties 
 into the field in midwinter and under the most arduous and expensive con- 
 ditions. A survey followed by occupation for the purpose of building a rail- 
 road will determine the location so as to give priority over other companies 
 seeking to appropriate the land covered by it. 2 
 
 The running of ' * scare-lines ' ' has been held not to constitute such a fraud 
 as will invalidate a settlement with a rival company unless the lines were run 
 where the company had not a legal right to locate its lines. 3 A location before 
 the company was incorporated will not hold as against another corporation 
 making and adopting the same location at a later day. 4 
 
 Where a railroad company has acquired and paid for its right of way and 
 has abandoned it, a second company may acquire it by condemnation ; but 
 unless the landowner has refunded the compensation received by him from 
 the first company, he is not entitled to the compensation awarded upon the 
 condemnation by the second company. Such compensation is to be awarded 
 to the first company or its legal representatives. 5 
 
 Where a highway is laid out across a railroad the railroad company is 
 entitled to compensation for the fair value of the land taken, subject to its 
 use for railroad purposes. 6 
 
 752. Maps, Plans, etc,, Describing the Location, Maps, plans, and 
 profiles of the location or survey of road are usually required to be made, 
 verified, and recorded before proceedings for condemnation, etc., can be 
 commenced. When this is done it determines the exact property taken for 
 the location, and constitutes the record of the lands taken. Generally the 
 location is not complete until this description has been filed for registry. 
 Such record is called a description, and is accompanied by maps, plans, and 
 profiles with suitable references. Such record must be so exact and definite 
 as clearly to identify the property taken and to define its precise limits. 7 
 When ambiguity arises in a description it may be explained after the same 
 manner as other descriptions or by the actual possession by the company.* 
 
 Under the laws of New York the map required to be filed by a railroad 
 
 J i9 Amer. & Eng. Ency. Law 832. Co. (N. Y.), n Abb. N. Cas. 386. 
 
 2 Pierce on Railroads 257; Atchison, 6 Dubuque & Dak. R. Co. v. Diehl 
 
 etc., R. Co. v. Mecklin, 23 Kan. 167; et al. t 64 Iowa. As to what is not an 
 
 Denver, etc., R. Co. z/. Canon City, etc., abandonment, see Memphis, etc., Ry. 
 
 R. Co., 99 U. S. 463. Co. v. Humphreys (Ark.), 48 S. W. Rep. 
 
 'Mills Co. v. Th B. & M. R. Co., 47 86 [1898]. 
 
 Iowa 66. 6 Boston & A. R. Co. v. City of Cam- 
 
 *New Brighton, etc., R. Co. v. Pitts- bridge (Mass.), 34 N. E. Rep. 382. 
 
 burg, etc., R. Co., 105 Pa. St. 13. But 7 19 Amer. & Eng. Ency. Law 833. 
 see N. Y., etc., R. Co. v. N. Y., etc., R. 
 
 * See Sees. 541-570, supra. 
 
753- OPERATIONS PRELIMINARY TO CONSTRUCTION. 518 
 
 company is sufficient if it shows the alignment and profile. It is not essential 
 that it should show all the connections, turnouts, and switches. 1 
 
 Maps, plans, and profiles filed with a description of a railroad line must 
 be intelligible without thfc aid of parol evidence, and should be connected 
 with the description of the land. 2 A map filed with the location of a road 
 and referred to as a part of the said location will explain, but not modify or 
 control, a written description of the location. 3 If the location can be fixed by 
 a comparison of the plan and the description, that is enough. 4 * 
 
 Where the president of a railroad company filed with the Secretary of the 
 Interior a map showing the proposed route of the road, as provided in the act 
 of incorporation, without authority of the board of directors, and the map was 
 rejected by the Secretary, it is a nullity. 5 
 
 753. Terminals of a Railroad. The terminals of a road are usually given 
 in the articles of incorporation and in the maps and plans filed with them. 
 A slight defect in such description has been held not fatal to the validity of 
 the articles, as where one terminal was given and the other described as being 
 "at or near B. " or as "some convenient point in the county of S., there to 
 connect with" another road. The words " beginning at" or " from " or 
 " between " or " running " to certain places have been held inclusive and to 
 authorize the road to be located within such places. 6 
 
 In case of a road whose terminus was the boundary of the town it was 
 held confined to the town limits at the time when the grant was made, and 
 that it was not extended when the town was enlarged. 7 
 
 754. Property in Location. The term " location" is used to designate 
 the line over which it is proposed to run the road after such line has been 
 surveyed and fixed upon as the route of .the road, but before acquiring the 
 land which it describes. " Locate " has been held to mean to fix or establish 
 the line. It has been held not necessary that the route should have been 
 staked and marked on the ground to fix the liability of subscribers to the 
 stock, and to constitute a location. Location may be completed by resolu- 
 tions or acts of the directors showing a corporate determination to construct 
 the road over a particular route. The word "locate" is synonymous with 
 the words " laying out." 8 
 
 1 People v. Brooklyn, etc., R. Co., 89 R. Co. v. Bruner, 55 Pa. St. 318; In re 
 N. Y. 75 [1882]. Park Commrs., 65 N. Y. 131. 
 
 2 Portland, etc., R. Co. v. York Co. ,65 5 Northern Pac. Ry. Co. v. Doherty, 75 
 Me. 293; Wilson v. Lynn, 119 Mass. 174; N. W. Rep. 1079. 
 
 Gd. June. R. Co. v. Middlesex (Mass.), 6 19 Amer. & Eng. Ency. Law 834; 
 
 14 Gray 553; Hunt v. Smith, 9 Kan. 137; Western Union R. Co. v. Smith, 75 111. 
 
 Quincy, etc., R. Co. v. Kellogg, 54 Mo. 496. But see, contra, North Eastern R. Co. 
 
 334. v. Payne (S. C.), 8 Rich. 177. 
 
 'Hazen v. Boston, etc., R. Co. (Mass.), 7 Com. v. Erie, etc., R. Co., 27 Pa. St. 
 
 2 Gray 574. 33Q; Chope v. Detroit, etc., Pk. Rd. Co., 
 
 *Gd. June., etc., R. Co. v. Middlesex 37 Mich. 195. 
 
 (Mass.), 14 Gray 553. As to quantity 8 19 Amer. & Eng. Ency. Law 835. 
 and description in such cases see Penn. 
 
 * See Sees. 541-640, supra. 
 
519 RIGHT OF WAY OF RAILROAD. 755. 
 
 A company has a right, from the beginning, to its location against all 
 except the owners of the land, but it requires condemnation proceedings or 
 purchase of the land to make the location a right of way and to perfect the 
 company's title thereto. The company's right by location is such that it 
 cannot be deprived of such right by the conveyance of the land to a third 
 party or to another company. 1 The right of a company to its location is not 
 lost or impaired by non-user unless the' non-user be permanent and entire. 
 It is not lost when a company fails to double-track its right of way for ten 
 years, 2 or to construct its road for thirteen years. 3 
 
 But failure of the company for eleven years to exercise a grant in its 
 charter of an optional circuit over another road was held to defeat the right 
 as against other companies. 4 In case a railroad misuses its right of location 
 the original owner may maintain a writ of entry or some equivalent proceed- 
 ing. 5 The misuse does not necessarily operate as a forfeiture. 
 
 Where a railroad company ceases to use as its right of way land which it 
 had appropriated for that purpose, and leases it to a person who takes exclu- 
 sive possession, the company thereby abandons its easement, and the land 
 reverts to the original owner free from the easement. 6 
 
 755. Abandonment of Location or Eight of Way. No general law can 
 be laid down as to what will constitute an abandonment or relocation of a 
 road. It will depend upon the circumstances of each case, and is doubtless 
 a question of intention to be determined by the jury. 
 
 Abandonment has been presumed when there had been a non-user for ten 
 years, when the right of way had been leased without authority, or when 
 another company had been allowed to occupy and use the location. The 
 mere sale or transfer of the right of way to another company before the road 
 was built was held" not an abandonment, especially so long as there was an 
 intention to complete an incompleted part of the road. The failure to run 
 passenger- cars does not operate as an abandonment when the road is regularly 
 hauling freight, and when the company is ready at all times to transport pas- 
 sengers for a reasonable compensation. The erection of a structure for 
 amusement on the land of a railroad has been held not to constitute an 
 abandonment of its right of way. 7 
 
 By abandonment of its location or right of way a company Toses all its 
 rights thereto, and the original owners may take possession. The company 
 may remove its depot building when it abandons that part of its road. If a 
 road has failed to occupy one of several routes, it may not complain because 
 
 1 Sioux City, etc., R. Co. v. Chicago, 620. 
 
 etc., R. Co., 27 Fed. Rep. 770. 5 Proprietors v. Nashua, etc., R. Co., 
 
 2 Hestonville, etc., R. Co. v. Phila., 89 104 Mass. I. 
 
 Pa. St. 210. 6 Roby v. Yates (Sup.), 23 N. Y. Supp. 
 
 3 Barlow v. Chicago, etc., R. Co. 29 la. 1108. 
 
 276. 7 19 Amer. & Eng. Ency. Law 836, and 
 
 4 Girard College, etc., R. Co. v. Thir- cases cited. 
 teenth, etc , R. Co., 7 Phila. (Penn.) 
 
7 5 & OPERATIONS PRELIMINARY TO CONSTRUCTION. $2O 
 
 it is used by another company. If the whole road or material bought has 
 been abandoned, such abandonment may be made the ground for a forfeiture 
 of the company's corporate rights and franchises. Where a road chartered to 
 operate between two places named is built and operated only part of the way, 
 it may have its charter and its corporate existence annulled by proper pro- 
 ceedings. A location which is illegal may be ratified and made perfect by the 
 legislature, and a defective location has been in some cases reformed by a 
 court of equity. 1 
 
 When easements of right of way are no longer needed by a railroad com- 
 pany it may release them to the owner of the land. 2 The fact that a railroad 
 .company has not completed its road within the time limited by its charter 
 -does not, as to third persons, affect its title to land acquired for right of way, 
 since only the state can take advantage of the default. 3 
 
 The surveyors of a company may enter upon land for the purpose of 
 examination, preliminary survey, location, etc., without previously acquiring 
 the land, and the statute authorizing such entrance is not invalid as a taking 
 -of private property without due process of law or without just compensation. 4 
 The only compensation to which the owner is entitled is for the injury which 
 as done to his property. 5 * 
 
 An act providing for the incorporation of railroad companies, giving to 
 such companies the right to enter on and proceed with the survey and con- 
 struction of their roads on private land while proceedings for the condemna- 
 tion of the same are pending, and before the compensation is paid, upon 
 giving security for the damages that may be ascertained, has been held not 
 unconstitutional. 6 
 
 756c Steam Railroads in Streets and Highways. " Steam railroads in 
 a public street or highway are a source of great inconvenience, annoyance, and 
 danger to the public, and nothing less than a plain and express grant will 
 authorize their construction there. Statutes granting such a right must be 
 strictly construed, and authority to construct a railroad longitudinally in a 
 public highway cannot be implied from a general power to condemn land for 
 a right of way, or from a specific power to construct the road to certain points 
 within the city limits." A steam railroad built in a public street or highway 
 without authority of the law constitutes a nuisance. A court of equity will 
 restrain it, and such damages as result may be recovered. The charter of a 
 
 1 19 Amer. & Eng. Ency. Law 837, 838. v. Western Pac. R. Co., 31 Cal. 538;Cush- 
 
 2 Flaten v. City of Moorhead (Minn.), man v. Smith, 34 Me. 247; Stewart v. 
 
 59 N. W. Rep. 1044. Mayor, 7 Md. 515; Walther v. Warner, 
 
 3 Chicago & E. I. R. Co. v. Wright 25 Mo., 289. 
 
 (111. Sup.), 38 N. E. Rep. 1062. 5 Bonaparte v. Camden & A. R. Co., 
 
 4 Polly v. Saratoga, etc., R. Co. (N. Y.), Bald. C. C. 205. 
 
 9 Barb. 449; Bloodgood v. Mohawk, 6 Fox v. Western Pac. R. Co., 31 Cal, 
 
 etc., Co. (N. Y.), 14 Wend. 51; Lyon v. 538 [1867]. 
 Greenbay, etc., R. Co., 42 Wis. 538; Fox 
 
 * See Sees. 351-360, supra. 
 
521 RIGHT OF WA Y OF RAILROAD. 757- 
 
 railroad company which authorizes the company to locate its road and take land 
 necessary therefor does not authorize it to occupy a street longitudinally, 
 though it may cross such street. 1 It must not occupy the street to any greater 
 extent than is necessary for the crossing. Authority to locate a railroad upon 
 or through a street must be specifically conferred in clear and express terms or 
 by implication which is clear and unavoidable. If the constitution does not 
 contain provisions to the contrary, the legislature may authorize the use and 
 occupation of one or more highways by a railway company without the consent 
 of local authorities. 2 The legislature has complete and exclusive control of all 
 highways of the state, and it may directly exercise its power of control or it 
 may delegate such power to a municipality. The right to build a railroad in 
 the streets of a city is not dependent on the consent of the city unless the 
 company's charter expressly so provides, but a right of way may be acquired by 
 condemnation proceedings under the legislative enactment as in other cases. 3 
 A city cannot authorize the construction and operation of a railroad in its 
 streets by reason of its usual and ordinary powers over such streets within its 
 limits. Such authority must have been clearly and explicitly granted to 
 the city by the legislature. It cannot be implied. Such a power may be 
 given to all the municipalities of the state by a general law subject to certain 
 conditions. When a city is given complete and exclusive control over its 
 streets it has been held to be authorized to grant the construction of railroads 
 thereon. 4 
 
 A kinetic motor, operated by steam generated from water heated in a 
 stationary boiler and transferred to a reservoir under the car and the motor, 
 is not the locomotive steam-power contemplated by Laws of New York 1890, c. 
 565, 100, providing that a street surface railway may not operate its road by 
 locomotive steam-power. 5 
 
 Where a company is authorized to construct and operate a railroad-track in 
 a street, a court cannot restrict the number of trains to be operated as a con- 
 dition precedent to the construction of the track. 6 
 
 757. Liability of Municipality for Trongful Acts of Railroad Com- 
 pany. Where a city has granted authority to a railroad company to occupy 
 the streets with its road, the city itself does not become liable to abutting 
 owners for the injuries caused by such occupation even though the grant was 
 made without authority. The company may not be regarded as an agent of 
 the city in the wrong-doing, and the grant will be presumed to have been 
 made on condition that the company should assume the responsibility for all 
 
 1 Atty. -General v. Morris & Essex Ry. Council (S. C.), 32 S. E. Rep. 299 [1899]; 
 Co., 19 N. J. Eq. 386 [1869]. St. Paul v. Chicago, etc., Ry. Co. (Minn.), 
 
 2 Chicago v. Illinois Steel Co., 66 111. 63 N. W. Rep. 267. 
 
 App. 561. 5 People v. Board of Railroad Com'rs, 
 
 8 Millvale, Appeal of (Pa.), 18 Atl. Rep. 52 N. Y. Supp. 908 [1898]. 
 
 993- 6 Kentucky & I. Bridge Co. v. Kreiger 
 
 * 23 Amer. & Eng. Ency. Law 1092- (Ky.), 198. W. Rep. 738. 
 
 1096, and cases cited ; Wilkins v. Town 
 
758. OPERATIONS PRELIMINARY TO CONSTRUCTION. $22 
 
 damages caused by its use and occupation of the streets. Unless the wrongful 
 acts are done by direction of the city, it does not become liable for the damages 
 resulting. If the city itself owns the fee of the streets, it has been held to be 
 entitled to compensation for the use of them by the railroad company. In 
 granting authority to construct tracks of a railroad in the streets, a city may 
 exact certain requirements and conditions precedent to its consent, as that the 
 company shall conform to the regulations of the city authorities as to the manner 
 of constructing the track or of operating its trains. Such requirements may 
 not be imposed if the .railroad company has express authority from the legisla- 
 ture to occupy the streets without the consent of the city. 1 
 
 758. Railroad Company's Liability. After a railroad company has 
 acquired a right to construct its road upon the street, it has complete 
 discretion as to the arrangement of matters of detail, such as the exact location 
 of a track, the gauge to be used, and such similar details. In the absence of 
 abuse of such discretion it will not be interfered with by the courts. A grant 
 by the legislature to a railroad company of the right to occupy streets or 
 highways is always subject to a constitutional provision protecting private 
 property, though just compensation shall be made for any property taken or 
 damaged; and such grant cannot be relied upon as affording the company any 
 relief from liability to abutting owners for injuries caused by the use of the 
 streets. This rule was not strictly applied in the earlier cases, some of which 
 held that the use of the streets of a city by a steam railroad was a legitimate 
 and ordinary use of the highway, and that, like street railways, it was merely an 
 improved means of travel which was contemplated when the street was origi- 
 nally laid out, and that therefore no compensation should be allowed to abut- 
 ting owners for injuries caused by constructing the railroad in the street. 
 This unjust rule has been abandoned and a later and better doctrine adopted 
 in most states that steam railroads are an additional burden upon a highway, 
 and that the occupation of a street by a railroad is a taking of the property of 
 the owner of the fee of such street. If the company has paid for the right to 
 complete one track along the street, it must pay further compensation when it 
 builds another track, which is held to constitute an additional burden upon 
 theftreet. 2 * 
 
 759. Abutting Owners have Right to Unobstructed Street. One who 
 purchases a railway located upon the street acquires no rights except those 
 possessed by the original company, and such purchaser becomes liable for 
 injuries to abutting property which arise from the unlawful occupation of the 
 street. The earlier cases held, also, that where the abutting owners did not 
 own the fee of the street, but it was vested in the public or in the city in trust 
 for the public use, no recovery could be had for the occupation of the street 
 
 *23 Amer. & Eng. Ency. Law 1098. 2 23 Amer. & Eng. Ency. Law noo- 
 
 1105. 
 
 * See Sec. 717, supra. 
 
523 RIGHT OF WA Y OF RAILROAD. 
 
 by the railroad. 1 Under such ruling it was held that an abutting owner whose 
 title extended over to the middle of the street had no cause of action against 
 a railroad company whose road was built wholly upon the opposite side. In 
 numerous jurisdictions this rule is still recognized and applied. Such a rule 
 could not be based upon well-defined principles of the common law. The 
 rights of private parties in public streets are upheld by the common law. 
 
 The weight of later authorities seems to repudiate such a doctrine as un- 
 sound. The best decisions of to-day protect an abutting property owner 
 against the appropriation of the street by railroad companies, without regard to 
 whether the fee is owned by him or not. Even if the fee be in the city, 
 county, or state, it is merely held in trust for the public use as a street and 
 for no other purpose ; and if the proper use of the street is diverted to any 
 other use, whereby a landowner is deprived of his right of access over the 
 street, then the constitutional provision against the taking of private property 
 without compensation is violated. Upon this ground it has been held that 
 where the state owns the fee of the street its consent that the railway company 
 may use such street merely relieves the company from liability for a public 
 nuisance, but that the company is liable to abutting owners for injuries caused 
 by the construction and operation of the railroad. This law is supported also 
 by the rights of the abutting owner to an easement of access and egress over 
 the street, which rights are pertinent to his property. If these easements are 
 interrupted by the construction and operation of the railroad, damages may 
 be recovered therefor. 2 
 
 The owner of the fee in lands abutting upon or constituting a part of a 
 public country road is entitled to equitable relief for injuries or obstructions of 
 a special or distinct character from those sustained by the general public, aris- 
 ing from the use of any part of it for an unanticipated purpose, and where 
 access to and use of the way are made dangerous or inconvenient by a trespass 
 of a continuing and permanent character. 3 
 
 A railroad company whose road ran across plaintiff's lots and permanently 
 obstructed a public street upon which the property abuts, at a distance of several 
 hundred feet from the premises, was held liable to the owner for the damages 
 sustained by reason of the closing of the street, notwithstanding the condemna- 
 tion proceedings to condemn the lots for a right of way. 4 
 
 The decided weight of authority of the recent cases, as collected in the 
 American and English Encyclopaedia of Law, is in support of this doctrine. 
 The correct rule, as therein declared, is " that whether or not an owner of 
 abutting property is the owner of the fee of the street, he nevertheless has the 
 
 1 Case v. Cayuga Co. (Sup.), 34 N. Y. Dist. R. 269. 
 
 Supp. 595. *Atchison & N. R. Co. v. Boerner 
 
 '23 Amer. & Eng. Ency. Law 1105- (Neb.), 51 N. W. Rep. 842; Syracuse S. S. 
 
 1108. Co. v. Rome, etc., R. Co.. 67 Hun 161; 
 
 'Philadelphia & T. R. Co. v. Philadel- Wright v. Syracuse, etc., Ry. Co. (Sup.), 
 
 phia & B. Pass. Ry. Co. (Corp. PL), 6 Pa. 36 N. Y. Supp. 901. 
 
7^0. OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 right to insist that he be not deprived of his rights of light, air, and of access 
 over the street, or materially injured in his use of them ; that, since a road con- 
 structed along a street is an additional burden thereon and a new use thereof, 
 and the operation of fast and heavy trains with their annoying accompaniments 
 of smoke, cinders, and gases, together with the impediment of free access 
 caused by the track, is a detriment to property, each owner has the right to 
 recover of the railroad company damages for injuries caused by such structure 
 and operation." 
 
 Such rights of abutting owners may be assigned to the railroad company or 
 may be expressly or impliedly waived, and in such case the abutting owner has 
 no cause of action except when the company has been guilty of an unlawful or 
 negligent exercise of its authority. 
 
 In determining the proper and legitimate use of the street or highway by a 
 railroad company and the general rights of abutting owners to compensation, 
 the ownership of the fee may very properly be considered in determining the 
 amount of damages to be assessed. If the abutter does not own the fee, then 
 he suffers no injury except the interference with his easement of light, air, and 
 access; but if he own the fee, then he surfers in addition the extra burden which 
 is imposed upon his land. 
 
 760. Statutes in Regard to Steam Railroads on Streets. In New York 
 it is held that where the fee of the street is in the public, the legislature may 
 authorize the construction of a steam railroad upon the street, and that the 
 abutting owner has no right of recovery for damages which result from the 
 proper exercise of this lawful authority. If the fee be in the abutting owner, 
 the occupation of the street is considered a taking of property for which such 
 owner may recover. In 1874 a constitutional amendment was adopted which 
 forbids the passage of laws authorizing the construction or operation of a street 
 railroad unless the consent of the bwners of one-half the value of the property 
 on the street be first obtained, which constitutional amendment has greatly 
 modified the rule in regard to railroads upon streets and highways in the State 
 of New York. No distinction has been made between street railroads and ordi- 
 nary steam railroads, the question being whether or not the construction and 
 operation of the road actually interferes with the easements of the abutting 
 owners. The New York courts have refused to apply the same doctrine to sur- 
 face roads that it has applied to elevated -rail way cases, and this has been the 
 subject of adverse comment. 1 
 
 There is no well-settled rule applicable in all the States as to whether dam- 
 ages may be recovered by abutting owners when they do not own the fee of 
 the street. In some States the rule has been modified and secondary considera- 
 tions, such as the change of the grade of the street or the excessive or unlawful 
 use of the street, have been made the test. In California, Colorado, Con- 
 necticut, Arkansas, District of Columbia, Florida, Georgia, Illinois, Missis- 
 1 23 Amer. & Eng. Ency. Law 1112, 1113. 
 
525 RIGHT OF WA Y OF KAILKOAD. 762. 
 
 sippi, and Nebraska damages have been allowed the abutting owners, even 
 though they did not own the fee of the street, for the injuries suffered by the 
 use and occupation of the street. 1 
 
 761. Liability for Injury to Abutting Estates. In some states laws have 
 been passed which give to abutting owners the right to recover damages for all 
 injuries sustained by them in relation to their property by reason of the con- 
 struction and operation of a railroad upon the streets. In some cases these 
 statute laws merely give the rights which the courts have established in their 
 jurisdictions. Such statutes have been held to give abutting owners the right 
 of recovery even though enacted when the railroad company had completed 
 the construction of its roadbed but had not laid down its tracks. Recovery 
 is limited in such cases to that provided for by the statute. Such laws do not 
 apply to cases where the railroad merely crosses the street. 
 
 If, in constructing the railroad, the grade of the street is changed, or embank- 
 ments are built, or cuts made in the streets, and if such changes interfere with 
 the abutting owner's easement of access to and from his property, then the 
 company is liable as for a taking of private property. In some cases it has 
 been argued that the city has a right to change the grade of its streets without 
 making compensation for injuries suffered, and that therefore it may delegate 
 such right to a railroad company so that the latter can accept its ordinary lia- 
 bility. Such a contention, however, has not been sustained, because in the 
 one case, where the city has the right to change the grades, the damages suffered 
 are for the public benefit, while in the other case .the changes are made for the 
 advancement of the interest of a private corporation. The right to occupy a 
 street has been held to convey no authority to alter the grade unless such an 
 authority is specially granted. 
 
 762. Measure of Damages to Abutting Property. The measure of 
 damages to abutting property is the actual diminution in the market value of 
 the premises for any use to which they may reasonably be put. Injuries 
 which are occasioned by the construction and operation of the railroad, and 
 which annoy and damage the plaintiff only in common with the rest of the 
 public, are not to be considered unless the occupation of the street is wrongful 
 and without authority of law. The injury sustained must differ in character 
 as well as in degree from that suffered by the public in general. In determin- 
 ing the injury to its use the same considerations may be regarded as in the 
 sale of such property between private parties. In an action by lessee the only 
 damages recoverable will be the difference between the value of the premises 
 before and after the road is built. Where the abutting owner has no right of 
 recovery except in cases where there has been an abuse or unlawful exercise 
 of authority the measure has been held to be the compensation for the injury 
 suffered, and not to embrace the decreased value of the property. In such 
 case it is not presumed that the wrong will continue, and therefore in an 
 
 1 23 Amer. & Eng. Ency. Law 1113-1120. 
 
763. OPERATIONS PRELIMINARY TO CONSTRUCTION. 526 
 
 action at law only such damages as have accrued at the time of the action are 
 recoverable. 
 
 763. Benefits to Property from Railroads. The benefits to a part of a 
 tract of land not taken cannot be considered in determining the compensa- 
 tion to be allowed in ordinary proceedings. In several states statutory or 
 constitutional provisions prohibit any considerations of such benefits. How- 
 ever, in cases arising from the occupation of streets by railroad companies 
 these statutory and constitutional provisions have no application. In these 
 cases there is merely an appropriation of easements appurtenant to the land, 
 and the value of these easements can be determined only by estimating the 
 value of the land with or without them. If the interruption of the easement 
 has resulted in an increased value of the land to which they are appurtenant, 
 or if it has not affected the value at all, then the abutting owner has no right 
 to anything more than nominal damages. The rule has therefore been stated 
 to be that in the cases under consideration benefits to abutting land arising 
 from the existence of the railroad are to be considered in estimating the 
 damages recoverable by the owner. The abutting owner must show that he 
 has suffered special injury from the occupation of the street. When there has 
 been no appropriation of property, but the only injury is the danger, annoy- 
 ance, and inconvenience which everybody who uses the streets surfers in the 
 same degree, then the abutting owner has no cause of action. This rule 
 should not be misapplied, for it relates to the right of the plaintiff as one of 
 the general public having a right of passage over the street, and does not apply 
 to his right as owner of the fee or of an easement in the street. Special 
 damages must differ from that sustained by the general public both in degree 
 and in kind, and the abutting owner must establish injuries different in their 
 legal charater from those suffered by the public generally. 1 
 
 An abutting owner must object to the occupation of the street within a 
 reasonable time. If he stand by without objection until the Yights of third 
 parties or of the public have intervened, he cannot then maintain an ejectment 
 or insist upon an injunction, though it has been held that he might still main- 
 tain an action for damages, his recovery being limited to such damages as had 
 accrued prior to the institution of the action and within the statutory period 
 of limitation, if the injury be of a temporary character; but if the trespass is 
 a permanent one, all damages may be recovered in a single action. 
 
 The right of action for damages is, it seems, in the party owning the 
 abutting lot at the time of the occupation of the street, and it does not pass to 
 subsequent purchasers. One who purchases a lot after the road has been 
 constructed is held to take full notice of the rights acquired by the railroad 
 company and of the injury to the property. An abutting owner of two con- 
 tiguous lots may have damages assessed to both lots together, yet they may 
 not have been so used by the owner in connection with each other. In one 
 1 23 Amer. & Eng. Ency. Law 1123-1128. 
 
RIGHT OF WAY OF RAILROAD. 7^5- 
 
 case it was held that a recovery for damages to one lot was a bar to an action 
 for similar damages to another lot on the same street when the lots were the 
 property of the same person, but were not contiguous. 
 
 764. Injuries to Abutting Owners from Elevated Railways in Streets. 
 The construction and operation of an elevated railroad is a trespass against 
 abutting property owners, and damages are recoverable by such abutters for 
 any injury or inconvenience whatever which results to them from the 
 structure itself or from uses incidental to it. The smoke and gases and the 
 ashes and cinders from an elevated railroad impair the easement of air to the 
 abutting owner. The structure itself and the passage of cars lessen his ease- 
 ment of light, and the dripping of oil and water and the many columns which 
 support the structure interfere with his convenience of access. They are each 
 and all elements of damage, even though they are a necessary phase of the 
 construction and operation of the road and are not the result of negligence. 1 
 
 Mere noise may be a nuisance, and smoke and vibration of machinery 
 aggravate such nuisance, and the fact that others in the same vicinity are in 
 like manner incommoded is no answer to an action by an injured party. 2 
 
 765. Property Rights may Not be Destroyed or Impaired by Legis- 
 lative Action. Direct legislation which would enable the state to take 
 property which was the subject of a grant in a charter of a railroad company 
 or acquired under it would be unconstitutional, and such authority obtained 
 through a reservation would be equally so. 3 Personal and real property 
 acquired during the lawful existence of a corporation, rights of contract or 
 choses in action so acquired, and which in their nature depend upon the 
 general powers conferred by the charter, are not destroyed by repeal, and the 
 courts may, 'if the legislature does not provide some special remedy, enforce 
 such rights by the means in their power. 4 No act of the legislature can 
 impair the obligation of contracts or establish such rules in regard to the 
 enjoyment and disposition of companies' assets as shall divert them or 
 unfairly and unequally divide them among the creditors. 5 When under a 
 charter certain rights have been acquired and have become vested, no amend- 
 ment or alteration of the charter can take away the property or the rights which 
 have become vested under a legitimate exercise of the powers granted. 6 Even 
 when the privilege is revocable the benefits received from it before its repeal 
 are vested rights, and the corporation cannot be deprived of them. 7 
 
 1 Druckerz/. Manhattan Ry. Co. (N. Y.), 4 Greenwood v. Freight Co., 105 U. S. 
 12 N. E. Rep. 568 [1887]; Hinez/. N.Y. El. 13, 
 
 R. Co., 36 Hun 293 [1885]. But see Mat- 5 Sinking Fund Cas., 99 U. S. 700. 
 
 ter of N. Y. El. R. Co., 36 Hun 427 6 Commonwealth v. Essex Co. (Mass.), 
 
 [1885]. 13 Gray 239. 
 
 2 Curran v. McGrath, 67 111. App. 566. 7 Covington, etc., R. Co. v. Kenton Co. 
 But see Philips v. Phila. & R. T. R. Co. Ct. (Ky.), 12 B. Mon. 144; Baltimore, 
 <Pa.), 39 Atl. Rep. 298 [1898]. etc., R. Co. v. Nesbit, 10 How. (U. S.) 
 
 3 8 Amer. & Eng. Ency. Law 633. 395. 
 
CHAPTER XXXVIII. 
 
 RIGHTS OF WAY OF STREET RAILWAY. 
 
 781. Street Railway Not an Additional Burden upon Streets. It is 
 pretty well established that the building of a street railway on the streets of a 
 city or village and the running of cars for the transportation of passengers do 
 not constitute an additional burden on the land, but are uses contemplated 
 when the street was located, and that therefore an abutting owner may not 
 maintain an action for damages to his property resulting from the construction 
 and operation of such railway, even though he own the fee of the street, 
 except in cases where he can show that he has suffered some special and 
 material injury. 1 
 
 This doctrine is denied in the state of New York in cases where abut- 
 ting owners own the fee of the street. The courts of that state have held 
 that "the use of a railroad no matter how it is operated, whether by horse- or 
 steam-power, necessarily includes to a certain extent an exclusive occupation 
 of a certain part of the highway for the tracks of the road and the running of 
 its cars, and the permanent occupation of the soil." It also requires that all 
 other parties stand aside and make way for its progress. This is clearty incon- 
 sistent with the legal object and design of a highway, which is entirely free 
 and open to all for the purposes of travel and transportation. 2 
 
 Where a city brought an action to recover compensation it was held that 
 the appropriation of the streets by the legislative authority for the use of a 
 street railway was not a taking of private property which would require com- 
 pensation to the city, though it owned the fee of the streets. If the exclusive 
 ownership of the streets is in the city, the general rule that abutting owners 
 can have no right to compensation is applied even in New York. 3 
 
 This general doctrine of no compensation cannot be applied so rigidly as 
 to exclude all right to claim damages. If the abutting owner can show that 
 he has suffered some special and material injury in the matter of access to his 
 property, he is entitled to recover compensation. A street railway built solely 
 
 1 23 Amer. & Eng. Ency. Law 954. 3 Kellinger v. 42d St. R. Co., 50 N. Y. 
 
 2 Craig v. Rochester City R. Co., 39 N. 206; Kane v. N. Y. El. R. Co., 125 N. Y. 
 Y. 404; Story v. N. Y. El. R. Co., 90 N. Y. 186; 23 Amer. & Eng. Ency. Law 956. 
 
 22. 
 
 528 
 
529 RIGHTS OF WAY OF STREET RAILWAY. 783. 
 
 for the purpose of transferring freight between two steam railroads was held 
 an additional burden to the street. x Embankments raised, or cuts made, or 
 the grade of the street materially changed, may make an additional burden 
 for which compensation to abutting owners will be required. 2 
 
 In Michigan, Massachusetts, and Rhode Island statutory provisions have 
 been made requiring compensation to be made to abutting owners. 
 
 782. The Right to Use Streets for Rights of -Way. The right of any 
 company to use the streets of a city for its tracks, pipe-lines, or telegraph and 
 telephone lines is possessed by virtue of its franchise granted by the legislature 
 or of a license from the city, and this right is subject to the limitations of the 
 grant of the franchise or license, and to the inherent rights of the city to 
 control and regulate its streets so far as it may be necessary to preserve them 
 for the free use of the public. 3 
 
 783. Obligation to Keep Street Unobstructed. A railway company is 
 bound to construct and maintain its road so that the full use of the entire 
 street by the public shall not be materially impaired. If injury result by 
 reason of failure to so construct and repair its tracks, then the company will 
 be held liable for damages suffered. The company, however, is not obliged 
 to keep that part of the street occupied by it in the same state of improve- 
 ment as the city may keep the remainder of the street. The company shares 
 the burden and expense of improving the highway with the rest of the public. 
 
 In many instances, however, the duty is imposed upon the company by its 
 charter or by conditions annexed to the franchise to keep in repair all that 
 part of the street occupied by it, and for a certain distance on each side. 
 Sometimes it is provided that the company shall maintain the whole street. 
 When a railroad company has covenanted with the city as a consideration for 
 its franchise that it will keep the street or any part thereof over which its track 
 passes in repair, it assumes the obligation owing from the city to the public 
 in respect to that part of the street, and is therefore liable for personal injuries 
 arising from defects in such street. In some instances the duty to repair is 
 imposed by ordinances and statutes passed subsequent to the grant of the 
 charter, but the effect of such ordinances and statutes must not be to impair 
 the obligation of the charter contract. Whether or not a requirement by the 
 city as to paving or repairing amounts to an impairment of the obligation of 
 the contract is a question about which the authorities have not laid down an 
 absolute rule, and the same holds true with regard to the exact effect of the 
 reserved right of the legislature or municipality to amend or repeal th^e charter. 
 
 By virtue of the power of police regulation a state may pass ordinances 
 requiring a company to keep in repair a part of the street occupied by it, but 
 such ordinances must be reasonable. When the company is obliged to 
 improve or repair, it has been held that the city should judge of the necessity 
 
 1 Carli v. Stillwater St. R. Co., 28 Minn. 2 23 Amer. & Eng. Ency. Law 957. 
 
 373. 3 23 Amer. & Eng. Ency. Law 947. 
 
784. OPERATIONS PRELIMINARY TO CONSTRUCTION. 5 30 
 
 of repair or improvements in any case. This discretion, however, must be 
 exercised in a reasonable manner. 1 
 
 The usual rules of interpretation are adopted in construing the provisions 
 of the charter or of an ordinance respecting obligations of a street railway 
 company. Since the common-law duty to repair does not require a company 
 to improve the streets, so the provision of its charter requiring it to repair the 
 street does not make it liable for improvements. A company must not only 
 restore the street to the same condition as before the track was laid, but it 
 must maintain the road in such a state that the full use of the highway shall 
 not be interfered with. 
 
 If the company fails or refuses to perform its duty to maintain the street 
 or restore it, the city may after due notice cause such repairs to be made and 
 compel the company to pay for them/ This remedy is most often pursued. 
 Mandamus may lie to enforce the performance of such duties. 
 
 784. Priority in Occupying Streets. In New York it has been held that 
 the construction of a road -in a street gives no exclusive right; that one com- 
 pany cannot prevent another one from first laying its tracks in the street in 
 question ; and that if the acts of the other company amount to a public nui- 
 sance or an obstruction of the way, it is for the public and not for the other 
 company to complain. 
 
 Where there are two or more companies which have a right to lay tracks 
 in a street which can only be occupied by one, the company which in good 
 faith first procures the construction of its road acquires a right of way superior 
 to that of others coming later. 2 
 
 A company must act entirely within the authority of its charter, for it has 
 been held that one authorized to build a cable road only acquires no right by 
 commencing to build a horse- or an electric-road, and that if another company 
 in good faith afterwards begins the construction of a road authorized by its 
 charter, the latter company is entitled to an injunction against the first one. 3 
 
 A bridge over a stream of water, and connecting streets on each side, con- 
 stitutes a part of the street, and authority to operate a railroad over the bridge 
 is not affected by the destruction of the bridge and the erection of a new one 
 in its place. 4 
 
 785. Rights of Street Railway in Street to the Exclusion of Others. 
 A street-railway company has been held to have no such exclusive right to the 
 use of its tracks and the ground covered by them as exists in the case of an 
 ordinary company, but it is entitled to use it only in common with others 
 traveling on the highway. Yet it has some rights which are superior to those 
 of other parties. A street-railway company has the right of way over other 
 
 1 23 Amer. & Eng. Ency. Law 986, 987. 4 Floyd v. Rome St. R. Co., 77 Ga. 614. 
 
 2 23 Amer. & Eng. Ency. Law 947; And see Pittsburg, etc., R. Co. v. Point 
 Elliott on Roads and Streets 570. Bridge Co. (Pa.), 22 Pittsb. L. J. N. S. 
 
 8 Indianapolis St. R. Co. v. Citizen's St. 367. 
 R. Co., 127 Ind, 369. 
 
S3 1 RIGHTS OF WAY OF STREET RAILWAY. 786. 
 
 vehicles on the street and may require them to turn out and make way for its 
 cars, and it may recover damages for injuries caused by the failure to respect 
 this right. It may by injunction restrain dther parties from such a constant 
 use of its tracks as shall materially interfere with the use of its road. At 
 points where a highway crosses the track the rights of the street railway have 
 been held to be in no way superior to those of other parties crossing the high- 
 way, and the rights and duties of both parties are governed by the ordinary 
 law of the road. 1 
 
 Under a power reserved to alter, amend, or repeal the charter of a street- 
 railway company the legislature may authorize another company to use its 
 tracks. In some cases it has been held that a city can do so. One company 
 may acquire the right to use the tracks of another by the exercise of the right 
 of eminent domain. In every such case compensation must be made to the 
 company whose tracks are used or condemned, and the method authorized by 
 the legislature must be pursued in determining that compensation. It may 
 not be arbitrarily fixed by the city. 
 
 In the absence of authority acquired by the means just mentioned one 
 company has no right to use the tracks of another company without its con- 
 sent, and may be prevented from doing so by injunction. A law forbidding 
 a street-railway company to lease its rights or franchises to other companies 
 or to operate parallel lines has been held not to preclude such companies from 
 building tracks for the partial use of their respective routes outside of that 
 zone in which they are parallel. 
 
 786. Power of Municipal Corporations to Grant a Right of Way, A 
 municipal corporation holds the control and use of its streets in trust for the 
 public benefit, and unless clearly authorized by a valid legislative enactment 
 it cannot surrender or delegate these rights to private persons or corporations 
 by contract. 2 An ordinance has been declared void which granted to a com- 
 pany a right to construct a street railway for an unlimited period of time and 
 without reserving the power of revocation. Such an ordinance would be void 
 as a delegation of powers which are a public trust, and which in the absence 
 of expressed authority are not alienable. 
 
 Such an ordinance differs from a mere license, which is in its nature 
 revocable and subject to the regulation and control of the city. A license 
 and a franchise have been distinguished. A franchise has been held to be a. 
 contract which must emanate from the sovereign power of the state, and which 
 cannot be granted by the city unless the power to do so has been clearly and 
 specifically granted. This distinction is made in several leading cases, and 
 the grant of an exclusive right has been held void as being an attempt on the 
 part of the municipality to grant a franchise. 3 
 
 Authority is usually conferred upon cities to grant the use of the streets 
 
 1 23 Amer. & Eng. Ency. Law 992-998. 8 23 Amer. & Eng. Ency. Law 948, and 
 
 2 23 Amer. & Eng. Ency. Law 948. 8 Id. 585. 
 
7 8 7- OPERATIONS PRELIMINARY TO CONSTRUCTION. S3 2 
 
 for purposes of rights of way for public improvements, but such grants must 
 be confined to the reasonable exercise of such a power; and such authority 
 cannot be extended to authorize an individual to construct a private railway 
 across or on the street for his own particular benefit, nor can it grant the use 
 of streets to so many companies that they will be virtually closed to public 
 travel. 
 
 If a special authority to the particular company named to occupy certain 
 streets be invalid on constitutional grounds, it is absolutely void and may not 
 be given a general effect so as to inure to the benefit of another company 
 having a prior charter for the streets named. 1 
 
 When a city has merely exceeded its powers in granting its streets to a 
 company, the legislature may confirm its action and render the privilege 
 granted a valid one, but not if the grant was unconstitutional. 2 
 
 When parks, squares, or grounds have been dedicated to the public for 
 purposes of public enjoyment and recreation, neither the legislature nor the 
 city has power to authorize a right of way over them for a street railway. 
 Such a right of way may be granted if such parks and squares belong exclu- 
 sively to the city. 3 An abutting owner has no such interest in the street as 
 will enable him to enjoin its use for a street railway. 4 
 
 787. Consent of Municipal Authorities to Occupy Streets. In many 
 states it is necessary to obtain the consent of the city whose streets are to be 
 occupied before the legislature may grant a franchise to construct and operate 
 a street railway. In such cases the consent required is absolutely essential. 
 Such conditions imposed by the constitution upon the legislature do not 
 preclude the legislature from imposing other conditions which are not incon- 
 sistent with those stipulated. Therefore, when the consent of the city 
 authorities is necessary, the latter are not limited to merely granting or 
 denying, but they may in their discretion prescribe certain other conditions on 
 which they will give the franchise if such conditions be not repugnant to the 
 grant by the legislature or to the constitutional or statutory provisions on the 
 same general subject. 5 The fact that the company will be subject to great 
 inconvenience and large expense in order to provide the conditions stipulated 
 is not a sufficient excuse for non-performance. 6 A common condition 
 required of companies that desire to occupy the streets is that they shall 
 obtain the consent of the city or the abutting owners, or of both, and that the 
 improvements shall be completed within a specified time. Other conditions 
 imposed and enforced are that the consent of other companies already occupy- 
 ing the street shall be obtained before the new improvements shall be under- 
 
 1 Larimer, etc., St. R. Co. v. Larimer 111. App. 446. 
 
 St. R. Co., 137 Pa. St. 533. 5 2 Dill. Munic. Corp. (4th ed.), 706. 
 
 2 23 Amer. &. Eng. Ency. Law 950. 6 St. Joseph Co. v. South Bend, etc., 
 
 3 17 Amer & Eng. Ency. Law 418, and R. Co., 118 Ind. 68. And see People v. 
 15 Id. 1055; 2 D1H. Munic. Corp., 650, Broadway R. Co , 126 N. Y. 29. See also 
 651. People v. Chic. W. Div. R. Co., 118 111. 
 
 * Stewart v. Chicago G. St. Ry. Co., 58 113. 
 
533 RIGHTS OF WAY OF STREET RAILWAY. 787. 
 
 taken, or that the property of a certain other company which has a franchise 
 for a like business shall be first purchased or acquired. l 
 
 The control of all streets and highways is in the legislature, and it is there- 
 fore competent for it, in the absence of constitutional restrictions, to authorize 
 the occupation of the streets of the city by a street-railway company without 
 the city's consent. 2 The constitutions of some states, however, require the 
 consent of the municipal authorities, and in other states there are general 
 statutes to the same effect. A subsurface railway wholly within the limits of 
 a city is a street railroad within the meaning of the New York constitution. 3 
 The laws of New York (Laws 1880, ch. 582) providing that the determination 
 of commissioners may be taken in lieu of the consent of the said city authori- 
 ties was held unconstitutional. " This provision of the constitution provides 
 that no law shall authorize the construction and operation of a street railway 
 except upon the condition that the consent of the owners of one-half in value 
 of the property be obtained, and that the consent also of the local authorities 
 having the control of that part of the street or highway upon which it is pro- 
 posed to construct and operate such railroad be first obtained ; or, in case the 
 consent of such property owners be not obtained, the general term of the 
 Supreme Court in the district in which the railway is proposed to be con- 
 structed may upon application appoint three commissioners who shall deter- 
 mine, after the hearing of all the parties interested, whether such railroad 
 ought to be constructed or operated, and their determination, confirmed by 
 the court, may be taken in lieu of the consent of the property owners." 
 This provision of the constitution was held not violated by the statute author- 
 izing an existing railroad company to substitute cable-power for horse-power 
 without securing the consent of the local authorities. 4 The consent of local 
 authorities is not necessary to the application for commissioners to determine 
 the expediency of constructing a road. 5 
 
 The local authorities whose consent is necessary under the New York laws 
 (Laws 1884, chap. 252,) are the officers whose duties and powers concern the 
 supervision, maintenance, and care of the highway, and they are the board of 
 high'way commissioners of the town. 6 
 
 Where a constitution requires that the consent of property owners or of the 
 local authorities shall be obtained, such requirement is a condition precedent 
 to the right to the use of such streets; and if consent be not secured and the 
 grant confers an exclusive franchise grounded on the condition that the 
 consent of the city be obtained, the legislature is guilty of no violation of the 
 charter by granting the same privilege to another company. 7 
 
 1 23 Amer. & Eng. Ency. Law 964, 965. * In re Rochester Electric R. Co., 123 
 
 2 23 Amer. & Eng. Ency. Law 965. N. Y. 351. But see the Railroad Law 
 In re Dist. Ry. Co., 107 N. Y. 42. and the Transportation Corporaf ons 
 4 In re 3d Ave. R. Co., 121 N. Y. 536. Law of New York. 
 
 5 / re People's R. Co., 112 N. Y. 578. 7 People v. Barnard, no N Y, J> 
 
788. OPERATIONS PRELIMINARY TO CONSTRUCTION. 534 
 
 788. Obligations and Conditions Imposed upon Street-railway Com- 
 pany. The city itself may make its consent conditional upon a company's 
 undertaking to observe and be subject to all ordinances of the city already in 
 force and thereafter to be passed, provided they are not unreasonable. Cities 
 have required that but one fare should be charged to points beyond their 
 limits; 1 that the company should keep the streets occupied by it clean and in 
 good repair; 2 that the city should receive an annual bonus for the use of 
 the streets; 3 that the roadbed, poles, wire, track, etc., should be approved 
 by the city council. Any condition may be imposed which the city in its dis- 
 cretion may deem proper as the terms upon which its consent shall be given, 
 except such conditions as may be repugnant to the grant of the franchise by 
 the legislature or to constitutional or statutory provisions. 4 
 
 789. Consent Implied, Revoked, or Modified. If abutting owners stand 
 by and see a street-railway company construct and operate its road under a 
 claim of right, such acquiescence will be regarded as evidence of their con- 
 sent. 5 When a lapse of ten years and the acquiescence of property owners 
 and the destruction of all written evidence are shown, very slight evidence 
 will be sufficient to establish the fact that consent was obtained as required 
 by statute. 6 
 
 In obtaining the consent of property holders the city is to be regarded as 
 the owner of an open public square which has been dedicated to the public 
 use forever, no matter who holds the fee. 7 
 
 Where a statute requires that the consent of abutting owners shall be 
 obtained before a valid grant of the use of the street may be made, and also 
 that the right to build the road shall be awarded to the party who offers the 
 best terms to the public, it has been held that the consent need not in terms 
 be given to the person who is the lowest bidder, for the contract can be 
 awarded to him alone, and the consents, no matter by whom obtained or by 
 whom given, are in substance essential to the construction and operation of 
 the road in the designated street, and therefore must inure to the benefit of 
 the best bidder. 8 
 
 It has been suggested by good authority that lot-owners might attach 
 reasonable conditions to their consent. 9 
 
 A single-track street railway constructed with the necessary consent of 
 abutting owners may not be double-tracked without securing the consent to 
 such change. 10 But if the original grant was for a double track, the city may 
 
 v. Barnard, no N. Y. 548. 6 Chicago City R. Co. v. People, 73 111. 
 
 2 Pittsburg, etc., R. Co. v. Birming- 571. 
 
 ham, 51 Pa. St. 41. 7 Patterson, etc., R. Co. v. Patterson, 
 
 8 Covington St. R. Co. v. Covington 24 N. J. Eq. 158. 
 
 (Ky.), 9 Bush 127. 8 State v. Bell, 34 Ohio St. 194. 
 
 *23 Amer. & Eng. Ency. Law 969. 9 People v. Chicago, etc., R. Co., 118 
 
 6 Patterson, etc., R. Co. v. Patterson, 111. 113. 
 
 24 N. J. Eq. 158. 10 Roberts v. Easton, 19 Ohio St. 78. 
 
535 RIGHTS OF WAY OF STREET RAILWAY. 79^ 
 
 not limit it to a single track after expenditures by the company for construc- 
 tion and equipment. 1 
 
 A property owner's consent to the construction and operation of a cable 
 railway "over, along, and upon" the street does not authorize a material 
 change in the grade of the street. 2 It has been held that property owners 
 might revoke their consents at any time before the city had taken final action. 3 
 
 790. Consent of Abutting Owners or of City. As a street railway is not 
 usullay considered as creating an additional burden upon the land, the 
 consent of the abutting owners to its construction and operation is not essen- 
 tial unless such consent is required by the constitution or by statute. The 
 constitution or general statutory provisions of many states require that no 
 street railway shall be constructed or operated without the consent of a 
 majority of the abutting landowners. The constitution of the state of New 
 York and the statutes of Illinois and Ohio require that such consent of the 
 property owners shall be obtained before the road is built. Under such a law 
 it has been held that the term "owners" means those who own at least a 
 freehold estate; and such an owner may be represented by life-tenants, and 
 by tenants by courtesy or by a dower, but that a father cannot consent for 
 his daughter, a husband for his wife, tenants in common for one another, 
 guardians for their wards, an administrator for an executor, or a president of 
 a private corporation without the authority of the board of directors, and 
 doubt has been expressed whether or not a city council can act for a muni- 
 cipal corporation. 4 
 
 It has been held that the consent of property owners need not be under 
 seal, though it is required by statute to be in writing. 5 
 
 When the constitution or the laws require that consent of the owners be 
 obtained, such consent is absolutely essential, and the construction of the 
 railroad may be enjoined unless such consent is obtained. It is not enough 
 that the company intends to apply for consent in the hope or expectation of 
 obtaining it. Persons who are not abutting owners, though they are citizens 
 and taxpayers, have no ground of complaint. 
 
 When application has been made for an injunction to prevent the con- 
 struction of a railroad upon a street, the action of the city council in granting 
 permission to construct such railway is not conclusive against property 
 owners, or proof that a majority consent has been obtained. 6 
 
 The city council has been permitted to allow application for consents as 
 to a part only of the route covered by the petition. 7 
 
 1 Burlington v. Burlington St. T. Co., Rapp v. City, etc., R. Co., 12 Wkly. L. 
 49 Iowa 144. Bull. 119; Bullock v. West Chic. Rap. 
 
 2 Fred v. Kansas City Cable Ry. Co., Trans. R., 23 Chic. L. N. 149. 
 
 2 Mo. App. Reptr. 1173. 5 In re Cortland, etc., R. Co., 31 Hun 
 
 8 Bullock v. W. Chic., etc. , Trans. Co. , (N. Y.) 72. 
 
 23 Chic. L. N. 147; Hayes v. Jones, 27 6 23 Amer. & Eng. Ency. Law 971. 
 
 Ohio St. ai8. 7 Simmons v. Toledo, 5 Ohio C. Ct. 
 
 * Booth on Street Railways, citing 124. % 
 
79*' OPERATIONS PRELIMINARY TO CONSTRUCTION. $36 
 
 791. Time Limit for Completion of Road. When a franchise of a street- 
 railway company requires that the road shall be constructed within a specified 
 time, it is a condition subsequent, failing in which the rights of the company 
 are liable to forfeiture. Whether or not the road is substantially constructed, 
 and what constitutes a completed track, are questions of fact for the jury, and 
 it has been held error for the court to instruct the jury that a road was 
 sufficiently constructed " if the ties were laid and the rails placed and spiked 
 thereon." 1 
 
 If the failure to complete the road be due to extrinsic causes and in no 
 way the fault of the company, as by injunctions or by interference on the part 
 of police officers of the city acting under direction of the mayor, the right of 
 the company has been held not to be lost, and the city may be enjoined from 
 interference with the laying of the tracks after the expiration of the time. If 
 the city allow the company to proceed with the work of construction after the 
 expiration of the time without interposing, it may be estopped from claiming 
 a forfeiture. 2 
 
 792. Exclusive Privileges Not in Favor. Street-railway franchises are 
 never construed to be exclusive if such a construction can be avoided. It is 
 a policy of the law always to discourage monopolies, and the city has not the 
 power to grant exclusive privileges in its streets unless the power has been 
 conferred by the legislature in direct and express terms. It can never exist 
 by implication qr construction, and the question has frequently been raised 
 as to the authority to delegate such a power to a municipality. Such ques. 
 tions arise in the construction of a constitutional provision against the creation 
 of monopolies by the legislature. Some cases maintain that the authority 
 depends upon the length of time through which such privilege is to extend, 
 and uphold such power if the length of time be not unreasonable. Exclusive 
 rights over private property may be acquired by contract with the owners, and 
 such rights will be recognized even though afterwards a highway be laid out 
 over the land occupied. There can be no doubt that the legislature has 
 power to grant an individual or a corporation a franchise to construct and 
 operate a street railway within any city, town, or village in the state unless it 
 is expressly prohibited by the constitution. The control of all highways rests 
 in the legislature, and its right in this regard is not impaired by the fact that 
 it had previously delegated the right to control and regulate certain streets to 
 the city. 
 
 A street railway is not regarded as an additional burden upon the street, 
 and therefore the legislature's act granting a franchise to a company may be 
 valid though there be no provisions made as to compensation to, or as to 
 obtaining the consent of, the owners of the abutting property. 3 
 
 793. Construction of Street Railways. Street railways are built and 
 
 1 Houston v. Houston, etc., R. Co., 84 "23 Amer. & Eng. Ency. Law 975. 
 
 Tex. 581. 3 23 Amer. & Eng. Ency. Law 953. 
 
537 RIGHTS OF WAY OF STREET RAILWAY. 794- 
 
 operated upon streets upon the legal presumption that they do not constitute 
 an additional burden and must therefore be so constructed that the use of the 
 highway shall not be interfered with or the rights of the public infringed. 
 The company must build and keep its road to the established grade of the 
 street, and must make it conform to subsequent changes in the street. The 
 method of construction and the materials employed must be of such shapes 
 and forms that when laid they will not prevent the public from making all 
 proper uses of the streets for vehicles. A street-railway company is liable for 
 all injuries resulting as a proximate consequence of its failure to comply with 
 this duty. 1 A street-railway company may not subject the public to incon- 
 venience by laying a heavy rail suitable for steam railroads. 2 
 
 794. Liability for Defective Track and Structures, The company is not 
 relieved from liability for injuries received by reason of defects in the con- 
 struction of its track by the fact that it has complied with all the require- 
 ments of the ordinances of the city prescribing the manner iri which the track 
 shall be constructed, or by the fact that the construction of the road has been 
 examined and approved and accepted by the agent of the city charged with 
 the duty of such examination. 3 The complainant has the burden of proof to 
 show negligence on the part of the company, and if the evidence fails to show- 
 that the injury resulted from any neglect of duty on the part of the company, 
 there can be no recovery. 4 
 
 The defects of construction which most often are a cause of injury are 
 those of defective switches or turntables, contracted or expanded cable-slots, 
 broken or improperly hung electric wires, and raised or projecting rails. 5 
 
 There can be no action for damages arising from the proper exercise of a 
 lawful authority, and therefore street-railway companies are not liable for 
 damages necessarily occasioned by the construction of the road. 
 
 When the authorities have the power to decide on what streets a railway 
 shall be constructed, the charter of the company under a general law confers 
 simply a corporate existence and does not of itself give any right to the use 
 of any street. To acquire such a right, the consent of the city government 
 must be obtained. If the location be fixed by statute or ordinance, the com- 
 pany may not vary from the lines prescribed, though it seems that a slight de- 
 flection may be made, such as a slight departure from the center of the street, 
 in order to reach the company's own property. A material departure from 
 an authorized route is a public nuisance for which the company may be in- 
 dicted or be enjoined from operating its road. 
 
 Where authority to use the street has been conferred and there remains 
 
 1 23 Amer. & Eng. Ency. Law 978-981. 32 Ind. 45. 
 
 2 Com. v. Cent. Pass. R. Co., 52 Pa. * Eagan v. 42d St. R. Co., 19 N. Y. St. 
 St. 519. But see Millvale v. Evergreen Rep. 676. And see Nivette v. New Or- 
 R. Co., 131 Pa. St. i; Easton, etc., v. leans, etc., R. Co.. 42 La. Ann. 1153. 
 Easton, 133 Pa. St. 505. 5 See 23 Amer. & Eng. Ency. Law 979- 
 
 3 Dalzell v. Indianapolis, etc., R. Co., 983, and cases cited. 
 
795- OPERATIONS PRELIMINARY TO CONSTRUCTION. 538 
 
 only a ministerial duty to be performed by the officers of the city before the 
 street railway can be put in possession, the court may compel the performance 
 of the necessary act by mandamus. 
 
 The extension of a street railway may be authorized by the legislature 
 only or its duly empowered agents. If this power has been delegated to the 
 common council of the city, the courts will not interfere with its exercise 
 except in a plain case of fraud or abuse. 
 
 Abutters upon public streets in cities are entitled to damages sustained by 
 them by reason of a diversion of the street from the purposes for which it was 
 originally taken and its appropriation to other inconsistent uses. 1 Whatever 
 is utilized for street purposes may occupy a street. Those things that are 
 merely used for municipal purposes and are not for street purposes are an 
 additional burden upon the streets. Street railways are for travel; sewers 
 drain surface-waters of highways; water-pipes supply water to sprinkle and 
 wash streets; electric-light wires or conduits and gas-pipes furnish light for 
 the streets and aid the public in their use. All these are therefore for street 
 purposes, in part at least. With telegraph and telephone wires it is not 
 so. They in no way preserve or improve the streets. 2 
 
 795. Construction of Street-railway Franchises. In the construction 
 of the charters of a corporation it is a well-established rule that they shall be 
 construed most favorably to the public and strictly against the incorporators. 
 This rule is not carried so far as to defeat the very purpose for which the 
 charter was given, but nothing will be included unless plainly within the scope 
 of its meaning. The grant of an exclusive right to construct and operate 
 horse railways has been held not to include authority to construct and operate 
 a cable road, notwithstanding that at the time of the grant the horse railway 
 was the only street railway in practical use and the latter was practically 
 unknown. A power to make connections with other roads is referred to such 
 roads only as existed at the time of the grant. 
 
 A power to construct a road on, over, and along certain streets or alleys 
 has been held not a power to construct the tracks on the side of the streets or 
 alleys mentioned. A right to construct and operate a road is authority to 
 construct such switches and turnouts as are necessary for the operation of the 
 road. 
 
 It has generally been held that authority to construct and operate a road 
 to a town or place authorizes the construction and operation of such road 
 within that place to its depot, though that be centrally located in the place. 3 
 
 1 Story v. New York El. R. Co., 90 35 Barb. (N. Y.) 373; Western Pa. R. 
 N. Y. 122; Lohr v. Met. El. R. Co. (N. Y.), Co.'s App., 99 Pa. St. 155; Turnpike R. 
 10 N. E. Rep. 528 [18^7]; Wagner v. Met. Co. v. Coventry, 10 Johns (N. Y.) 389; 
 El. R. Co. (N. Y.), 10 N. E. Rep. 535. McCartney v. Chicago, etc., R. Co., 112 
 
 2 Palmer v. Larchmont Elec. Co., 158 111. 611. But see, contra, Northeastern 
 N. Y. 235. R. Co. v. Payne, 8 Rich. (S. C.) 177. 
 
 3 Mason v. Brooklyn St., etc., R. Co., 
 
539 RIGHTS OF WAY OF STREET RAILWAY. 797' 
 
 796. Forfeiture of Street-railway Franchise. A franchise of a street 
 railway may be lost either by voluntary act of transfer, or by the expiration of 
 the period prescribed for its existence, or from non-user or misuser. The 
 rights of a company may be transferred only when authority has been con- 
 ferred to do so. If a franchise be granted for a certain period of time, it 
 expires at the end of that period and no judicial proceeding is necessary to 
 declare it at an end. Failure of a city conferring the franchise to fulfill any 
 collateral contract obligations will not prolong its existence. 
 
 However, the courts exercise great care in deciding suits whose object is 
 to work the forfeiture of corporate franchises, and not every instance of non- 
 performance of the acts of incorporation or every misuser will forfeit the 
 franchise. The substantial performance according to the intent of the charter 
 is all that will be required. 1 
 
 To work a forfeiture it is necessary to bring direct proceedings against the 
 -corporation for that purpose, and the government which created the corpora- 
 tion must institute such proceedings. If, however, the acts of incorporation 
 provide that for the non-performance of certain conditions "corporate exist- 
 ence and power shall cease," or "that this act of the powers, rights, and 
 franchises herein and hereby granted shall be deemed forfeited and terminated, " 
 or that "the franchises and privileges herein granted shall truly cease and be 
 forfeited," then the forfeiture is self-executed and requires no action or 
 judicial proceedings to declare it so. 
 
 When the act provides that in case of default the company shall " forfeit 
 the rights " held by it under the act of incorporation, that alone does not put 
 an end to the corporate existence, but simply gives the state a right to enforce 
 the forfeiture. 
 
 Street-railway franchises granted by the legislature have been distinguished 
 from the mere license of the city to occupy its streets. As before explained, 
 the latter is not a franchise, but simply a license which, if not acted upon by 
 the grantee within the time fixed by the ordinance, or if attempted but subse- 
 quently abandoned, may be granted by the city to another company without 
 first securing a decree of forfeiture from the courts. 
 
 797. Unauthorized Use of Streets and Ways. The unauthorized use of 
 public highways by a street railway in the construction and operation of its 
 road is a nuisance of itself, being an invasion of the public rights therein. 
 For maintaining such a nuisance a street-railway company may be indicted, 
 or it may be enjoined by the public authorities, or by a private citizen who 
 makes out a case of special damages to himself. The fact that a city has the 
 right to remove the track by force is no objection to the granting of an 
 injunction against the wrongful laying of such track. This is upon the 
 ground that when a party has the remedy by his own act, involving the use of 
 force, it does not constitute an adequate remedy at law which will exclude the 
 
 1 23 Amer. & Eng. Ency. Law 976. 
 
798- OPERATIONS* PRELIMINARY TO CONSTRUCTION. 54<D 
 
 equitable relief. 1 If a road be constructed in a manner which is not author- 
 ized by the statute under which the corporation was organized, and if the 
 grade do not conform to the grade of the street, the road may be adjudged a 
 public nuisance. 2 
 
 A street-railway company is confined strictly to the streets which it is 
 authorized to occupy, and a track built where the company has no authority 
 to place it is a nuisance which may be enjoined. 3 
 
 The erection without competent legal authority of a wall of masonry and 
 an iron structure along the middle of a highway by a surface-railroad com- 
 pany, to connect its tracks with those of an elevated -rail road company, con- 
 stitutes a nuisance. 4 The use of the tracks of a street-railway company for 
 private purposes has been held to constitute a nuisance. 5 
 
 If the nuisance be purely a public one, it can be restrained only by public 
 authority. In order that a private citizen or corporation may enjoin the 
 unauthorized use of a public street by a railway company, special damages, 
 must be shown to have been suffered by such party. 6 
 
 Where a bill to enjoin defendant from constructing an electric street rail- 
 road in certain streets in a city, though filed in form by the attorney-general 
 in behalf of the people of the state, was not filed for the purpose of asserting 
 any public right or protecting any public interest in the streets, but was filed 
 at the instance of rival railway companies, it was held to have been properly 
 dismissed. 7 
 
 A grant by a city to a street railway of a right of way for its track over a 
 remote portion of a public park which does not interfere with the free passage 
 or use thereof in the customary manner has been held not to create such a 
 nuisance as will enable an individual to maintain an action in behalf of the 
 public to abate and enjoin the same. 8 
 
 798. Electric Trolley Lines upon Streets and Ways, A contention that 
 an electric trolley system with its poles and wires and its track constituted a 
 new servitude upon the street was not sustained, and the electric railway was 
 considered to be no different from other street railroads in this regard, it 
 being held that the question whether or not an additional burden was imposed 
 could not be determined from the motive power employed. 9 
 
 The wires of an electric railway have been distinguished from telegraph- 
 wires. Telegraph- and telephone-wires have been held not to be for the pur- 
 pose of facilitating the use of the streets, whereas the poles and wires of an 
 
 1 23 Amer. & Eng. Ency. Law 959. 6 23 Amer. & Eng. Ency. Law 959. See 
 
 2 Denver, etc., R. Co. v. Denver City also Musser z/. Fairmont, etc., St. R. 
 R. Co., 2 Col. 673. Co., 7 Amer. Law Reg. 284; Roberts v. 
 
 3 Stamford v. Stamford Horse R. Co., Easton, 19 Ohio St. 78. 
 
 56 Conn. 381; Com. v. Erie, etc., R. Co., 7 People v. General Electric Ry. Co., 50 
 
 27 Pa. St. 339. And see Zabriskie v. Jer- N. E. Rep. 158, 172 111. 129 [1898]. 
 
 sev City, etc., R. Co., 13 N. J. Eq. 314. 8 People v. Park & O. N. Co. (Cal.), 18 
 
 4 Eldert v. Long Island Electric Ry. Pac. Rep. 141 [1888]. 
 
 Co., 51 N. Y. Supp. 186. 9 23 Amer. & Eng. Ency. Law 957 and 
 
 5 Fanning v. Osborne, 192 N. Y. 441. many cases cited. 
 
54 ! RIGHTS OF WAY OF S 'TREE 7' RAILWAY. 799- 
 
 electric trolley system are directly auxiliary to the uses of the street in that 
 they communicate the power by which the street cars are propelled. 1 
 
 When, however, an electric passenger railway, running on the highways 
 through country towns, proposes to grade down the highways to such an 
 extent as to impair the right of access of abutting owners, it imposes an 
 additional burden on such highways. 2 
 
 Ordinary railroads are not to be distinguished from street railways in this 
 respect by the motive power employed, but in the character of the use. A 
 street railway is auxiliary to the use of the street. It is a mode of travel, and 
 is closely allied to those vehicles in common use upon the highway, and as a 
 matter of fact and common knowledge is very much less of an obstruction 
 than an ordinary railroad. 
 
 The fact that a kinetic motor is still in its experimental stages, or that the 
 company operating a street railroad is controlled by persons interested in the 
 motor system, is no ground upon which to withhold the consent of the rail- 
 road commissioners for the operation of the street railroad with such motors. a 
 
 799. Change of Motive Power on Street Railway. Where street-railway 
 charters were granted when horse power was the only motive power utilized, 
 the courts have shown some reluctance in construing them so as to author- 
 ize the substitution of steam, cable, compressed air, or electricity to the 
 possible detriment to public traffic. A change from horse to mechanical 
 power may not change the character of the railway, though it might be an 
 additional burden upon the street. Nowadays the motive power contem- 
 plated is usually specified in the charter. 4 
 
 Under the general power of police regulation a city may forbid the use of 
 a mechanical power where the safety of the public demands it. This is so 
 even though the charter may have authorized the use of such a power. The 
 use of steam in the streets of a city has been declared a nuisance and its use 
 enjoined. It has also been held within the powers of the city to authorize a 
 change of power or the use of a particular power. The legislature may, of 
 course, authorize an adoption of the motive power not allowed by the com- 
 pany's charter. The motive power adopted or implied does not change the 
 character of the railway. It remains a street railway, and the rules of law and 
 the requirements of statutes or ordinances relative to street railways apply. 
 
 1 Judge Dillon, z Dill. Munic. Corp. Co., 74 N. W. Rep. 538 [1898]. 
 
 (4th ed.), 734. But see, contra, Jaynes 'People v. Board of Railroad Com'rs, 
 
 v. Omaha St. Ry. Co. (Neb.), 74 N. W. 52 N. Y. Supp. 908 [1898]. 
 
 Rep. 67. * 23 Amer. & Eng. Ency. Law 996 and 
 
 2 Zehren v. Milwaukee Elec. Ry. & L. cases cited. 
 
CHAPTER XXXIX. 
 RIGHT OF WAY FOR TELEGRAPH AND TELEPHONE LINES. 
 
 811. Telegraph and Telephone Lines in Public Ways. The laws and 
 rules governing rights and ways for telegraph and telephone lines do not differ 
 materially from those governing railroads and street railways. The former are 
 usually built upon country roads, highways, or in the streets of a village or 
 city; and it is necessary that authority shall be granted such companies for the 
 construction of their lines upon public ways, as such rights cannot exist from 
 implication. 1 The laws and statutes applicable to " telegraph " companies and 
 giving certain powers to them, as the power to exercise the right of eminent 
 domain, apply equally to "telephone" companies. 2 
 
 812. Authority to Occupy Streets must Come from Legislature. To 
 authorize the use of streets for telegraph-poles, it is necessary that legislative 
 sanction should be directly given or immediately conferred through proper 
 municipal action. If such poles be erected within the limits of the street or 
 highway without such sanction, they are nuisances; but if the erection be 
 authorized, they are not nuisances. 3 The ultimate authority to grant such 
 privileges rests in the legislature by virtue of its power of control over all streets 
 and highways. 4 
 
 Such power of the legislature may be delegated to cities and villages, and in 
 general a city or village has the power to grant to a telephone or telegraph 
 company the right to construct a line upon its streets, provided such construc- 
 tion does not interfere with the free use of the streets by the public. 5 In the 
 state of New Jersey it is required by statute that the consent of town authori- 
 ties shall be obtained before the telegraph lines may be built. 6 In many states 
 
 1 New York, etc., Teleph. Co. v. East 4 Hudson Teleph. Co. v. Jersey City, 
 Orange Tp., 42 N. J. Eq. 490; Atty.- 49 N. J. Law 303; Irwin v. Gt. So! 
 Gen 1 v. United Kingdom Tel. Co. Teleph. Co., 37 La. Ann. 63. 
 
 (Eng.), 30 Beav. 287. * 25 Amer & Eng- Ency Law 753; 2 
 
 2 Gulf, etc., Ry. Co. v. Southwestern Dillon on Municipal Corp. (4th ed.) 710. 
 Teleg. & Teleph. Co. (Tex.), 45 S. W. Broome v. N. Y., etc., Teleph. Co!, 
 R ep- 151. c 49 N. J. Law 624; State v. Newark (N. 
 
 'Com. v. Boston, 97 Mass. 555; Young J.), 8 Atl. Rep. 128 [1887]. And see 
 
 v. Yarmouth (Mass.), 9 Gray 386; Reg. State, Meyers v. Hudson Co. E. Co. (N. 
 
 v. United Kingdom Tel. Co., 9 Cox C. J.), 37 Atl. Rep. 618; King v. Poor Laws 
 
 C. 171. And see 2 Dillon on Munic. Com'rs, 6 Ad. & El. 7. 
 Corp. (3d ed.) 698. 
 
 542 
 
543 TELEGRAPH AND TELEPHONE LINES. 814. 
 
 it is held that a legislative act or municipal ordinance which authorized the 
 construction of a line upon a street is void if it fail to provide for compensation 
 to abutting owners. 1 
 
 813. Restrictions Imposed by Legislature. Frequently the legislative 
 grant to occupy city streets is conditioned upon obtaining the consent of the 
 city, and power is given to the city to impose restrictions and conditions. 2 If 
 no such conditions are imposed by the legislature, it seems the city cannot 
 impose restrictions, nor can village authorities interfere with the exercise of a 
 company's rights. 3 A charter authorizing a license-tax for regular telephone 
 companies has been held to confer power to grant to such companies the right 
 to erect poles in the streets. 4 
 
 814. Telegraph Lines a Burden upon Streets. Occupation of a street by 
 a telegraph or telephone line and poles constitutes a new use of the street and 
 an additional burden upon it. Owners of abutting property are entitled to 
 compensation for such a use; but the erection and maintenance of electric street- 
 railway poles in the street if properly placed is not an additional burden. 5 
 The right to use the street for telegraph and telephone lines must be acquired 
 by condemnation proceedings, or by voluntary consent of the abutting land- 
 owners. Where the only injury shown was that which would result from wires 
 passing over the street in front of premises, the court held that the case did not 
 authorize an injunction against the erection of the poles and wires. 6 Courts are, 
 as a rule, slow to require the removal of a public work or a suspension of its 
 operations after it has been erected and completed. If an injunction be 
 granted at all in such a case, it is usually on condition that it shall be inopera- 
 tive if the company shall make proper compensation within a reasonable time. 
 Such a case is one in which a court might be justified in refusing an injunction 
 which would prevent the completion of a work of great public benefit, and is 
 one in which the rights of the public might suffer if an injunction were granted. 
 The court might say to the plaintiff who sought an injunction in such a case 
 that he had a remedy at law for damages which he had suffered. It is insisted 
 on the other hand that the proprietary rights of the landowner would be 
 interfered with in a manner detrimental to his interest as owner of the fee, 
 and that the action of a telephone company in taking possession of his land 
 forcibly and against his will comes within the constitutional inhibition that 
 private property shall not be taken or damaged without just compensation. 
 
 1 Stowers v. Postal Tel. Co., 68 Miss. v. Warwick (Pa.), 40 Atl. Rep. 93 [1898]. 
 559; Chesp., etc., Teleph. Co. v. Mac- * Hershfield v. Rocky Mt. Bell Teleph. 
 Kenzie, 74 Md. 36; So. West. R. Co. v. Co., 12 Mont. 102. 
 
 So. Tel. Co., 46 Ga. 43; State, Meyers v. 5 Snyder v. Ft. Madison St. Ry. Co. 
 
 Hudson Co. E. Co. (N. J.), 37 Atl. Rep. (Iowa), 75 N. W. Rep. 179; 25 Amer. & 
 
 618. Eng. Ency. Law 753, mahy cases cited; 
 
 2 2 Dillon on Municipal Corp. (4th ed.), Eels v. Amer. Teleg. & Teleph. Co. 
 -06. (Sup.), 20 N. Y. Supp. 600. 
 
 3 State v. Flad, 23 Mo. App. 185. See 6 Roake v. Amer. Tel. Co., 41 N. J. 
 State, Mathews v. Central U. Tel. Co., Eq. 35. 
 
 14 Ohio C. C. 273, and Commonwealth 
 
8 1 5. OPERATIONS PRELIMINARY TO CONSTRUCTION. 544 
 
 This position is without doubt the one sustained by the best authority, and it 
 rests upon sound principles of law. The construction and maintenance of a 
 telegraph or telephone line upon a highway is a new and additional burden 
 upon the fee and one to which it was. not contemplated that the highway should 
 be subjected, and for this reason the owner is entitled to additional compensa- 
 tion. 1 The same has been held true of the poles and wires of an electric rail- 
 way. 2 
 
 Where a telephone company, through its employees, had been placed in 
 possession of a line of way and of telephone-posts on the property of another 
 without legal right, a prayer by the owner for the removal of the posts will not 
 be granted where the evidence shows that the company would be entitled to 
 have the same line re-established as its right of way, and its posts immediately 
 replaced in the same position. The company, however, will be compelled to 
 pay the value of the right of way, and damages for the illegal invasion of the 
 owner's right of property. 3 
 
 815. Owner of Street Entitled to Compensation for Additional Burden. 
 Where, however, the absolute ownership of the highway is vested in the 
 public, there can be no legal objection to a grant by the public of the right to 
 erect such poles and wires without regarding the adjacent property owners. 
 Usually, however, as we have seen,* the property in the street belongs to 
 adjacent owners, and only those uses of a st reet have been permitted which 
 are incident to public travel. It is clear that every use of the highway which 
 is not incident to travel is an additional burden for which the owner of the 
 soil of the street is entitled to additional compensation; and this right cannot 
 be taken from him without his consent except by proceedings regularly insti- 
 tuted and prosecuted according to law. 4 A county board has no power to 
 permit a telegraph company to erect poles in a highway without compensation 
 to the owner of the fee therein, in view of the constitutional declaration 
 that "private property shall not be taken or damaged without just compen- 
 sation." 5 
 
 As Judge Dillon has said in his book on municipal corporations: "The 
 author considers the true doctrine to be that the rights of an abutter as between 
 himself and the public are substantially the same whether the fee is in him 
 subject to the public use, or in the city in trust for the street use proper. On 
 the whole," he says, "the safer and perhaps sounder view is that such a use 
 of a street or highway, attended as it may be, especially in cities, with serious 
 damage and not being a convenience to the abutting owner, is not a street or 
 
 1 25 Amer. & Eng. Ency. Law 754, and 8 Fuselier v. Great So. Teleg. & Tcleph. 
 
 cases cited. Co., 24 So. Rep. 274. 
 
 "Jaynest/. Omaha St. Ry. Co. (Neb.), * Pac. Post. Tel. Cab. Co. v. Irvine, 
 
 74 N. W. Rep. 67. Contra, Snyder v. 49 Fed. Rep. 113. 
 
 Ft. Madison St. Ry. Co. (Iowa), 75 N. W. 5 Const., art. 2, 13; Postal Tel. Cable 
 
 Rep. 179 [1898]. Co. v. Eaton, 170 111. 513 [1897]. 
 
 * See Sees. 441-460, supra. 
 
545 TELEGRAPH AND TELEPHONE LINES. 8l6. 
 
 highway use proper, and hence entitles the owner to compensation for such use 
 or for any actual injury to his property caused by poles and lines and wires 
 placed in front thereof." l 
 
 The legal consent of the state to the erection of poles in highways is only 
 intended to protect the telegraph company from indictment for maintaining a 
 public nuisance by so doing. It gives the company no right to erect such poles 
 unless the owner consents or receives compensation. 2 
 
 The law as expressed in the text of the last paragraph is not universally 
 recognized. The Massachusetts courts have held that an act authorizing the 
 construction of telegraph lines in highways did not provide for compensation 
 to abutting owners, and that nevertheless the statute was constitutional and 
 valid since no additional servitude was imposed by the erection of poles and 
 wires along the highway. This Massachusetts doctrine has found some favor 
 in other courts, among them those of Indiana, 3 Louisiana, Missouri, and the' 
 District of Columbia, but the decisions have not been without strong dissent- 
 ing opinion in many of the cases. 4 
 
 816. Measure of Damages for Use of Street for Telegraph Lines. 
 Abutting owners are not only entitled to compensation for the use of a street, 
 but also to damages for any material injury to their easement of access to, or 
 passage over, the street. Ownership of the fee of the soil of the street occupied 
 does not affect their rights. 5 
 
 The measure of damages to the abutting owner is the amount which the 
 value of the property has been diminished either in rents or in its market price > 
 or the difference in the value of the property before and after the construction 
 of the line. 6 
 
 Under an ordinance authorizing a telephone company "to run and main- 
 tain its wires over and through the streets of the city . . . for the purpose of 
 establishing telephonic communication between its patrons and between its 
 exchange office and the subscribers thereto," and imposing as a condition 
 only that it comply with all ordinances "regulating or in any manner con- 
 trolling . . . telephone companies in the use of the streets for ... telephone 
 purposes," the determination of what streets shall be occupied is for the com- 
 pany, except possibly in the case of some street exceptionally situated. 7 
 
 The original grant to a telephone company to occupy any streets is not 
 affected by the mode of use being changed, by the concurrent act of the city 
 and company, from the overhead to the underground system, and it cannot 
 afterwards be limited by the city. 7 
 
 The authority retained by a city to regulate the manner of occupation of its 
 
 1 2 Dill.on Munic. Corp. (4th ed.), 698. 74 N. W. Rep. 67; 25 Amer. & Eng. 
 
 2 Eels v. Amer. Teleg. & Teleph. Co. Ency. Law 755. 
 
 (Sup.), 20 N. Y. Supp. 600. 6 Chesp., etc., Teleph. Co. v. McKen- 
 
 3 Magee v. Overshiner (Ind.), 49 N. E. zie, 74 Md. 36. 
 
 Rep. 951 [1898]. 7 Commonwealth v. Warwick (Pa.), 40 
 
 4 25 Amer. & Eng. Ency. Law 754, 755. A. Rep. 93 [1898]. 
 6 Jaynes v. Omaha St. Ry. Co. (.Neb.), 
 
817. OPERATIONS PRELIMINARY TO CONSTRUCTION. 546 
 
 streets by a telephone company includes the power to compel adoption from 
 time to time of all reasonable and generally accepted improvements which tend 
 to decrease the obstruction of the streets or to increase the safety or conven- 
 ience of the public. 1 
 
 The Laws of New York 1886, chap. 40, sec. i, provide as follows: 
 " Whenever any wire or cable used for any telegraph, telephone, electric light, 
 or other electric purpose, or for the purpose of communication otherwise than 
 by the aid of electricity, is or shall be attached to or does or shall extend upon 
 or over any building or land, no lapse of time whatever shall raise a presump- 
 tion of any grant of, or justify a prescription of any perpetual right to such 
 attachment or extension." The furnishing of light to citizens is a sufficient 
 public use to sustain the grant by a city of the right to erect wires and poles 
 in the streets for furnishing electric light. An ordinance granting such a right 
 cannot be repealed or changed in the absence of a reservation therein of the 
 right so to do. 2 ' But in New York such wires and poles constitute unlawful 
 obstructions, which the corporation may remove after they cease to be used. 3 
 
 817. Telegraph Company's Liability for Injuries by Lines and Poles. 
 Where the company has acquired no right to occupy the street with its lines, 
 its occupation thereof is unlawful and amounts to a public nuisance, and 
 abutting "owners may have an injunction against it or they may bring an 
 action for damages. 4 
 
 Where a company acted upon the assumption -that it had the legal right of 
 constructing its line on a road without asking or obtaining the consent of 
 abutting owners, or seeking to acquire its rights by negotiation or condem- 
 nation, such abutting owners are not estopped on the ground of acquiescence 
 from maintaining an action. 5 
 
 A grant of a right of way along the street confers upon a telegraph or tele- 
 phone company no right to trespass upon private property abutting, as to cut 
 the limbs of trees projecting over the sidewalk, or so to place its poles as to 
 incommode or injure the public in the use of the street. For such trespasses 
 the company is liable in damages. 6 However, it has been held that a tele- 
 phone company cannot be required to locate its poles so as to provide against 
 all possible injury that might happen under extraordinary circumstances. 7 
 
 Where a telephone or telegraph company occupies private property with 
 its poles and wires, the owner of such property is entitled to compensation for 
 the injuries which he surfers. A right to occupy one's land with such poles 
 
 Commonwealth v. Warwick (Pa.), 40 roth v. Manhattan R. Co., 122 N. Y. I. 
 
 Atl. Rep. 93 [1898]. But see Western Union Tel. Co. v. Bul- 
 
 2 Levis v. Newton (C. C. S. D. Iowa), lard (Vt.), 31 Atl. Rep. 286. and York 
 
 75 Fed. Rep. 884. Teleph. Co. v. Keesey (Com. PL), 5 Pa. 
 
 8 Hempstead v. Ball Electric Light Co. Dist. Rep. 366. 
 
 (N. Y.), 9 App. Div. 48. 25 Amer. & Eng. Ency. Law 755, and 
 
 * 25 Amer. & Eng. Ency. Law 755. cases cited. 
 
 5 Blashfield v. Empire State Teleph. 7 Sheffield v. Cent. Union Teleph. Co., 
 
 Co. (Sup.), 18 N. Y. Supp. 250; Abend- 36 F-d. Rep. 164. 
 
547 TELEGRAPH AND TELEPHONE LINES. 8l8. 
 
 and wires can be acquired only by contract or by condemnation proceedings. 
 If the wires extend over one's land, even without any actual occupation of the 
 soil, the owner thereof is entitled to compensation. Doubtless in such a case 
 the damages assessed would be merely nominal, and it may even be doubted if 
 the courts would recognize such an injury. 1 
 
 In the present day, when telephone and telegraph wires are so likely to 
 become crossed with transmission-wires of high potential, a telephone or tele- 
 graph wire strung above or over a man's house or estate is a much more serious, 
 if not dangerous, matter than it was ten years ago, and damages .might be 
 assessed to compensate for the risk assumed by having such a wire over one's 
 possessions. 2 
 
 818. Telegraph and Telephone Line on Railroad Right of Way. _ A 
 telegraph or telephone line upon a railroad right of way is an additional 
 burden upon the land for which the original owner of the land, if he retain the 
 fee, may recover additional compensation. 3 
 
 Where a railroad company condemns or purchases a right of way it takes 
 that right of way for the purpose of location, construction, and operation of 
 its road and for other purposes incident thereto. If, therefore, in the opera- 
 tion of the railroad it require the use of a telegraph line, it may erect such a 
 line upon its right of way without being subject to claims for additional com- 
 pensation, if the line be reasonably necessary for the proper operation of the 
 road. 4 
 
 A telegraph line subjects the easement of a right of way of a railroad com- 
 pany to an additional servitude for which the company itself is entitled to 
 compensation under constitutional provision against the taking of private prop- 
 erty. When a legislative act provides that telegraph companies may construct 
 their lines " along and parallel to any of the railroads of the state," it does not 
 authorize the condemnation of a right of way by a telegraph company along 
 and upon the right of way of any railroad company. 5 
 
 Where the lines of a telegraph company have been erected upon the right 
 of way of a railroad company under a contract which provides that, the railroad 
 company shall become entitled to the property, upon dissolution or discontinu- 
 ance of operations by the telegraph company, the right of way of the telegraph 
 company is lost by the surrender of its charter just prior to the expiration of 
 the same and a reincorporation under a subsequent statute, even though such 
 statute provides that the new company shall take all the property of the old 
 company. 6 
 
 v. American Teleph. Co., 41 R. I. 688. 
 
 N. J. Eq. 35. 5 Postal Tel. Cab. Co. v. Norfolk, etc., 
 
 1 See Plummer v. Gloversville Elec. R. Co., 88 Va. 920; New York State, etc., 
 
 Co. (N. Y.), 20 App. Div. 527 [1897!. R. Co. v. Cent. Union Tel. Co., 21 Hun 
 
 3 25 Amer. & Eng. Ency. Law 756 and (N. Y:) 261. 
 
 cases cited. 6 Latrobe v. Western Tel. Co., 74 Md. 
 
 4 Western Tel. Co. v. Rich, 19 Kan. 232; Western Telegraph Co. v. Balti- 
 517; Taggart v. Newport St. R. Co., 16 more, etc., R. Co., 67 Md. 211. 
 
819. OPERATIONS PRELIMINARY TO CONSTRUCTION. 548 
 
 A license by a railroad company to maintain a telegraph line along its road 
 so long as the licensee exists as a telegraph company expires with the expira- 
 tion of the telegraph patents held by the licensee, and a reincorporation does 
 not affect the case. 1 
 
 819. No Exclusive Rights for Telegraph Lines on Railroads. There is 
 nothing to prevent a telegraph company from acquiring a right of way by con- 
 tract with a railroad company over its right of way, though it cannot contract 
 for an exclusive right. Such exclusive rights are not favored in law, and a 
 railroad company, usually having nothing more than an easement in the land 
 over which its right of way passes, has no power to grant exclusive privileges 
 as to it. 2 
 
 A railroad company cannot grant to a telegraph company the sole right to 
 construct a line over its right of way so as to exclude other companies whose 
 lines would not interfere with those of the first company. 3 There are a few 
 decisions to the contrary where contracts for the exclusive right to occupy the 
 right of way of a railroad company have been upheld. 4 Such a contract is not 
 void so far as it excludes other telegraph companies from poles erected upon 
 the right of way and occupied by one telegraph company. 5 
 
 A contract by a railroad company not to construct or allow to be con- 
 structed another telegraph line along or upon its right of way was held not void 
 as against public policy. 6 Since the passage of an act of Congress 7 a state can- 
 not grant to a telegraph company exclusive rights in a right of way of a rail- 
 road within the state. The statute is a prohibition of all state monopolies in 
 this particular. 8 
 
 820. Government Grants of Rights of Way. By statute of the United 
 States a right of way is granted over the public lands and the military or post 
 roads to all telegraph companies complying with certain conditions. Any com- 
 pany organized under the laws of any state, under these statutes, has the right to 
 construct, maintain, and operate its telegraph lines over any part of the public 
 domain, under or across any of its navigable streams or waters, provided such 
 lines are not placed so as to obstruct navigation or interfere with the proper 
 use of military or post roads. 9 Stone, timber, and other materials for its poles, 
 stations, and other necessary uses in constructing its line maybe taken from the 
 public lands through which the line passes, and the company may pre-empt 
 such portions of the public lands as may be necessary for its stations, not exceed- 
 ing forty acres for each station, such stations not to be within fifteen miles of 
 
 1 Western Union Tel. Co. v. Balti- Un. Tel. Co., 17 Sup. Ct. Can. 151. 
 more, etc., R. Co., 20 Fed. Rep. 572. 5 Western Un. Tel. Co. v. Chicago, 
 
 2 Pacific Post. Tel. Cab. Co. v. West. etc.,- R. Co., 86 111. 246. 
 
 Union Tel. Co. (Cir. Ct.), 50 Fed. Rep. 6 Western Un. Tel. Co. v. Atlantic, 
 
 493; 25 Amer. & Eng. Ency. Law 757. etc., Tel. Co., 7 Biss. (U. S.) 367. 
 
 3 United States Rev. Stat., 5263; 7 Rev. Statutes U. S. 5263-5268. 
 Western Union Tel. Co. v. Amer. Un. 8 Pensacola Tel. Co. v. Western Un. 
 Tel. Co. (U. S.), 9 Biss. 72. Tel. Co., 96 U. S. I. 
 
 4 Canadian Pac. R. Co. v. Western 9 United States Rev. Statutes, 5263. 
 
549 TELEGRAPH AND TELEPHONE LINES. 821. 
 
 each other. 1 These rights and privileges, however, are not to be transferred 
 by any company acting thereunder to any other corporation, association, or 
 person. 2 
 
 For these privileges and grants, telegrams between the several departments 
 of the government and their officers and agents have priority over all other 
 business, and at such rates as the Postmaster-General may fix. Any company 
 refusing to comply with the provisions of this statute may not be paid any part 
 of the appropriations of the several departments of the government. 3 
 
 In these statutes the United States reserves the right to purchase all tele- 
 graph lines and other property at an appraised value to be ascertained by five 
 competent disinterested persons, two to be chosen by the Postmaster-General, 
 two by the company, and one by these four, and before any telegraph com- 
 pany may exercise any of the powers and privileges conferred it must file with 
 the Postmaster-General its written acceptance of the restrictions and obliga- 
 tions required. 4 A penalty is provided of not less than one hundred dollars 
 nor more than one thousand dollars for every refusal or neglect to transmit any 
 proper message offered by the government or its officers or agents concerning 
 government affairs. 5 , 
 
 821, Ways that are Post-roads. Another United States statute declares 
 all railroads to be post-roads. 6 
 
 A railroad being a post-road, it cannot, therefore, grant any telegraph 
 company an exclusive right of way. 7 
 
 These United States statutes were enacted under the congressional powers 
 of control over interstate commerce, and their constitutionality may not be 
 doubted; they have superseded all conflicting state legislation on the subject. 8 
 A statute, however, has been held not to authorize telegraph companies to 
 occupy a railroad company's right of way without compensation, but the privi- 
 leges under the act are subject to the prior rights of other companies. 9 
 
 Revised Statutes 1866, 5263, 5268, 5269, authorizing telegraph com- 
 panies complying with its terms to construct and maintain their lines along 
 and over all post-roads of the United States, and Revised Statutes, 3964, 
 making all railroads post-roads, do not empower a telegraph company to 
 occupy the right of way of a railroad with its line without the consent of the 
 railroad company, or a contract with a prior owner which is binding upon it. 10 
 
 A court of equity has no power, on the ground of public necessity, to effect 
 
 1 United States Rev. Statutes, 5264. etc., R. Co., 19 Fed. Rep. 660; Union Trust 
 
 2 United States Rev. Statutes, 5265. Co. v. Atchison, etc., R. Co. (N. M.), 43 
 8 United States Rev. Statutes, 5266. Pac. Rep. 701; Pensacola Tel. Co. v. 
 
 And see United States v. Union Pac. R., Western Un. Tel. Co., 96 U. S. I. 
 
 45 Fed. Rep. 221. 8 25 Amer. & Eng. Ency. Law 759. 
 
 4 United States Rev. Statutes, 5267, 9 Atlantic, etc., Tel. Co. v. Chicago, 
 
 5268. etc., R. Co., 6 Biss. (U. S.) 158; Western 
 
 5 United States Rev. Statutes, 5269. Un. Tel. Co. v. Amer. Un. Tel. Co., 9 
 
 6 United States Rev. Statutes, 3964. Biss. (U. S.) 72. 
 
 And see Postal Laws, vol. 18, page 865. 10 Western Un. Tel. Co. v. Ann Arbor 
 
 7 Western Un. Tel. Co. v. Baltimore, R. Co., 90 Fed. Rep. 379. 
 
822. OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 an equitable condemnation of an easement of way for a telegraph line over the 
 right of way of a railroad on which it was built and operated under a contract 
 with a prior owner of the road, which contract has been terminated by the 
 sale of the road on foreclosure of a mortgage antedating such contract. 1 
 
 The telegraph company must obtain the consent of the owners of the right 
 of way or condemn it for telegraph purposes and make compensation therefor. 2 
 
 The streets of the District of Columbia have been declared to be post-roads 
 within the meaning of the statute, and telegraph companies may construct their 
 lines on sueh streets without compensation to abutting owners. 3 
 
 822. State Statutes Superseded by United States Laws. There are state 
 statutes which grant rights of way to telegraph companies under certain con- 
 ditions and restrictions, but, as before stated, they are in certain particulars 
 superseded by the United States statutes. Some of the state statutes also^ 
 determine the rights of the telegraph and telephone companies to place their 
 poles along city streets, as well as the proceedings necessary for the determi- 
 nation of such a right of way and for the determination of the compensation 
 to be paid to the owners or abutting owners of the property over which the 
 line passes. 4 It has been declared that such statutes authorizing the construc- 
 tion of telegraph lines on state or county roads do not authorize the occupa- 
 tion of the highway without compensation to the abutting owners who have 
 retained the fee of the soil of the highway. 5 
 
 Though a state may grant exclusive privileges between certain points to a 
 telegraph company, yet such a grant should be held subject to prior acquired 
 rights of other companies. 6 
 
 823. Restrictions and Conditions Imposed by Laws and Ordinances. 
 In general the law applicable to rights of way of railroad companies, pipe lines, 
 and other guasi-public institutions applies to rights of way of telegraph com- 
 panies; and it has been held that the law, or a statute, applicable to a telegraph 
 company is equally applicable to a telephone company at least so far as the right 
 of way or the construction of its lines are concerned. This statement, of course, 
 is subject to the modifications which arise from the difference in the construction 
 demanded, the uses to which the lines are put, 7 or the special statutes which 
 have been passed by the state and the federal government in regard to tele- 
 graph and telephone companies. Thus in the state of New Jersey the law 
 requires that the size of the poles as well as the positions in which they are 
 to be placed should be indicated. 8 
 
 1 Western Union Tel. Co. v. Ann Arbor 5 Western Un. Tel. Co. v. Williams, 
 
 R. Co., 90 Fed. Rep. 379 [1898]. 86 Va. 696; Postal Tel. Cable Co. v. Nor- 
 
 2 Amer. Teleph. Co. v. Pearce, 71 Md. folk, etc., R. Co., 88 Va. 920. 
 
 535- 8 California, etc., Tel. Co. v. Alta Tel. 
 
 3 Hewett v. Western Un. Tel. Co., 4 Co., 22 Cal. 398. 
 
 Mackey (D. C.) 424. 7 25 Amer. & Eng. Ency. Law 760. 
 
 * See 25 Amer. & Eng. Ency. Law 760 8 Broome v. N. Y., etc., Teleph. Co. ,49 
 
 and cases cited. N. J. Law 624. 
 
55* TELEGRAPH AND TELEPHONE LINES. 826. 
 
 824. Telegraph Lines across Navigable Waters. In order for a tele- 
 graph company to secure a right to construct its right of way across navigable 
 waters under United States statutes it will be required to file with the Post- 
 master-General its written acceptance of the obligation imposed by the statutes. 1 
 And the company must not interfere with the opening of drawbridges or other- 
 wise obstruct navigation in the construction of its line over navigable waters. * 
 Such telegraph lines when laid in the bottom of a navigable river must be laid 
 with due care and foresight. A company has been held liable for injuries to 
 vessels by having their anchors caught in a submarine cable. 3 
 
 825. Proceedings to Condemn a Right of Way. In some states the laws 
 require that a company shall make an effort to contract with the landowners 
 before resorting to condemnation proceedings. In such cases the company, it 
 seems, need only make a proposition to the landowners and wait a reasonable 
 time for a reply, in the absence of which it may condemn a right of way. 4 
 The determination of the compensation due to a railroad company for a right 
 of way of a telegraph line fixed by the commissioners appointed is not neces- 
 sarily final. 5 
 
 In condemning a right of way . for 'a telegraph line the company does 
 not acquire the fee of the soil and use of the land except for the purpose of 
 erecting and maintaining its telegraph poles and wires. 6 A landowner is not 
 to be deprived of his use of the land except so far as such use is inconsistent 
 with the rights of the company, nor is he bound to fence his land from the 
 strip condemned for a right of way. 6 A grant to a telephone company to run 
 and maintain wires " over and through " the streets does not include permis- 
 sion to lay them underground. 7 
 
 826. Liability for Negligence in Erecting and Maintaining Telegraph 
 Lines. In the construction of its line a telegraph company must exercise 
 proper care to prevent injuries to persons using the street, and it is responsible 
 for all injuries which result by reason of improper construction or maintenance. 
 If a pole be located and maintained so that it is a dangerous obstruction 
 in a street, and a frightened horse run against it to the injury of a person driv- 
 ing, the company is not relieved from liability because the city authorized its 
 erection. 8 
 
 Wires may not be permitted to swing down so low as to obstruct 
 travel without explaining and showing that it was not negligence on the 
 part of the company. If guilty of negligence, the company is liable for 
 
 Chicago, etc., Bridge Co. v. Pac. R. Co., 87 Va. 349; Louisville, etc., R. Co. 
 
 Mut. Tel. Co., 36 Kan. 113. v. Postal Tel. Cab. Co., 68 Miss. 806. 
 
 2 Pac. Mut. Tel. Co. v. Chicago, etc., 6 Lockie v. Mut. Un. Tel. Co., 103 111. 
 Bridge Co., 36 Kan. 113. 401. 
 
 3 City of Richmond, 43 Fed. Rep. 85. 7 Commonwealth v. Warwick (Pa.), 40 
 
 4 Louisville, etc., R. Co. v. Postal Tel. Atl. Rep. 93 [1898]. 
 
 Cab. Co., 68 Miss. 806. 8 25 Amer. & Eng. Ency. Law 761. 
 
 5 Postal Tel. Cab. Co. v. Norwalk, etc., 
 
82/. OPERATIONS PRELIMINARY TO CONSTRUCTION. - 552 
 
 injuries sustained by persons from being thrown down or out of moving 
 vehicles, or for injuries from shocks from electricity due to the wires being 
 charged either from natural or artificial sources. 1 Such companies are not 
 liable unless the proximate cause of the injury is due to its negligence. A 
 company may not be required to anticipate and provide against extraordinary 
 and unexpected storms. 2 A company is not relieved from liability by the 
 abandonment of its property. 3 
 
 If the city authorized the erection of poles in such manner and place that 
 they constitute a nuisance, the city as well as the company is liable x for the in- 
 juries resulting. The city has no right to authorize the erection of poles which 
 are dangerous to people properly using a street, and the company may not 
 claim freedom from liability on the ground that its act was authorized by the 
 city. 4 
 
 The danger attending the location is to be determined by the jury. It 
 must be clearly proved that the location of poles is dangerous, for it is not 
 sufficient to show the objects of danger. Poles erected upon a highway as close 
 as possible to the side, so as not to have the cross-bars extend over private prop- 
 erty, were held not to constitute such a dangerous location as would entitle 
 a person to recover for injuries to a runaway horse. 5 
 
 The ground of liability is the negligence of the company in constructing 
 and maintaining its lines. It is not liable merely because of the presence of 
 its lines which contribute to the injury, as where poles and wires interfere with 
 the operations of a fire company and prevent the extinguishment of a fire. 6 
 
 An electric-light pole in a village street has been adjudged to be a nuisance, 
 in an action against the village for damages occasioned thereby. The village, 
 having affirmatively assented to the location of the pole, had no recourse 
 against the electric-light company. It was held that as it was adjudged that 
 the pole was a nuisance because of its location, and not because of the use to 
 which it was put, the plaintiff and the electric-light company were in the posi- 
 tion of joint wrong-doers, and were in pari delicto, and the village was therefore 
 held not entitled to claim indemnity or contribution from the electric-light 
 company. 7 
 
 Ih the proof of improper or negligent construction of telegraph lines, the 
 general rules and laws of negligence prevail in matters of evidence, burden and 
 proof, etc. 
 
 827. Rights Attending a Prior Occupation of Right of Way. In the 
 many applications of electricity which have recently been made many nice 
 
 *25 Amer. & Eng. Ency. Law 761, 762, Tel. Co., 21 Hun (N. Y.) 22; Sheffield v. 
 
 .and cases cited. Cent. Un. Tel. Co.. 36 Fed. Rep. 164. 
 
 2 Ward v. Atlantic, etc., Tel. Co., 71 6 See Cheffee v. Telephone, etc., Con- 
 .N. Y. 81. struction Co., 77 Mich. 625, and see the 
 
 3 Nichols v. Minneapolis, 33 Minn. 430. Dissenting Opinion; and see Thompson 
 
 4 25 Amer. & Eng. Ency. Law 762. on Electricity, 25. 
 
 5 Roberts v. Western Un. Tel. Co., 77 7 Geneva, Trustees of, v. Brush E. Co. 
 Wis. 589. And see Allen v. Atlantic, etc., (N. Y. ), 50 Hun 581 [i! 
 
553 TELEGRAPH AND TELEPHONE LINES. 828. 
 
 questions of law have been presented to the courts which have not been defi- 
 nitely settled, and many more are destined to arise which have not yet been 
 adjudicated. In the application of electricity as a motive power on street rail- 
 ways and the thousand and one applications to domestic purposes there is a 
 constant source of danger to many other structures. This is due to the leakage 
 and return of the electric currents to its source. From every electric motor 
 driven by electricity generated at a station there is a return current which may 
 or may not traverse the conductor provided for it on its return to the generator. 
 If this current escape from the return conductor provided, it may traverse steel 
 and iron structures in which the connections are not perfect, and this results in 
 corrosion of the material of the structure, and frequently ends in the destruction 
 of its usefulness. 
 
 The creation of a powerful current of electricity in a conductor has a con- 
 siderable and sometimes injurious effect upon other conductors and currents of 
 electricity in the vicinity. A current of electricity of high potential traversing 
 a trolley wire, or conductor, suspended from poles along a street may induce 
 such currents in the telegraph or telephone wires in the vicinity as to destroy 
 their usefulness for the purpose for which they were erected; and if by accident 
 such conductor charged with a heavy current of electricity shall come in con- 
 tact with a telephone or telegraph wire which was not intended to convey such 
 a powerful current, it may cause a destruction of the delicate and valuable 
 apparatus attached to the telephone or telegraph wire or may lead to accidents 
 resulting in death of persons coming in contact with such wires. These condi- 
 tions raise important questions as to the rights of telegraph and telephone com- 
 panies to enjoy the rights of way upon which they have erected their lines, and 
 questions as to what damages may be recovered for such injuries caused by 
 other companies occupying rights of way in the immediate vicinity of their 
 lines. Suits have been brought to enjoin other companies from placing their 
 wires charged with heavy currents of electricity in close proximity to telegraph 
 and telephone wires, and from using the earth as a return circuit for such cur- 
 rents. As street railways using electric motive power have their rails for a 
 return conductor, and since such rails are reasonably suitable for the purpose, 
 the burden of erecting a return current circuit has usually been imposed upon 
 the telephone companies. 1 
 
 828. Interference with Telephone Lines by Induction. Interference with 
 telephone lines due to induction from the proximity of parallel wires convey- 
 ing a stronger current is easily prevented, and a court of equity will grant relief 
 against it upon proper showing by the telephone company. The right to such 
 relief may depend upon whether the company complaining has a prior right of 
 way over the space covered by its wires, and as against the defendant company. 
 
 1 See Keasbey on Electric Wires 139; vliet Tpk. Co., 135 N. Y. 393, 61 Hun 
 Thompson on Electricity ( 43, 50), (N. Y.) 141; Cumberland Teleph. Co. v. 
 etc.; Hudson Riv. Teleph. Co. v. Water- United Elec. R. Co., 42 Fed. Rep. 273. 
 
829. OPERATIONS PRELIMINARY TO CONSTRUCTION. 554 
 
 A company which owns a prior right of way will not be enjoined from its bene- 
 ficial use in favor of a subsequent occupant. 1 
 
 A telephone company which has a prior right of way upon a street has been 
 granted an injunction against an electric-light company from constructing its 
 lines within such a distance as should interfere with the effective and successful 
 use of the telephone wires, and from erecting its lines in such way as to be a 
 source of danger to such telephone lines in case of accident from breakage or 
 other accidents which might bring the two lines in contact.^ 
 
 In another case an injunction was denied because it appeared from the testi- 
 mony that there would be no sensible diminution in the current of a telegraph 
 line due to or caused by induction from close proximity of the wires, and that 
 the danger to linemen engaged in repairing the telegraph lines could be 
 avoided by having the electric-light current so that it could be shut off on 
 notice, which would only be required during the daytime ; and, further, that 
 the danger from falling wires in storms was too uncertain to be considered. 
 A circumstance of the case was that an injunction was granted with the 
 limitations just stated, with the reserved right to modify its decisions after 
 experiment. 3 
 
 829, Protection of Wires from Contact with Other Wires. It has been 
 held a duty of the telephone company so to construct its line as not to inter- 
 fere with the free use of the street by the public for purposes of travel and 
 transportation, and that this duty includes operations necessary to keep its 
 wires from coming in contact with those of the street railway subsequently 
 occupying the street. 4 
 
 830. Disturbance and Damage from Conduction. In the matter of dis- 
 turbance from conduction or leakage of electricity and which results from 
 the use of an imperfect return circuit or from the use of the earth as a return 
 conductor, the question as to the prior right of way and occupation has been 
 considered as material, and injunctions against* railroad companies 'have been 
 denied in all cases. The decisions have rested on the ground that when a 
 person or corporation makes a lawful use of his own property or of a public 
 franchise, anql in so doing injury results to another, the question of liability 
 will depend upon whether use has been made of the best known means. It is 
 not required that one should adopt exclusive devices or the most recent inven- 
 tions when the party injured could protect himself by the use of an effective and 
 inexpensive device. When the use of a metallic circuit by either party to the 
 suit would prevent interference between the two currents, and when the tele- 
 phone company could use such a circuit by adopting a safe and inexpensive 
 device, while the railroad company could do so only at a very great expense, 
 
 1 25 Amer. & Eng. Ency. Law 765. L. Co., 14 Cin. Wkly. Bull. 327. 
 
 2 Nebraska Teleph. Co. v. N. Y. Gas- * Cent. Pa. Teleph. Co. v. Wilkes- 
 light Co., 27 Neb. 284. And see Keasbey Barre, etc., R. Co., II Pa. Co. Ct. Rep. 
 on Electric Wires 142. 417. 
 
 3 West. Un. Tel. Co. v. Champion Elec. 
 
555 TELEGRAPH AND TELEPHONE LINES. 831. 
 
 and the question was practically as to which company should undergo the 
 expense of such a circuit, the court denied the prayer for an injunction against 
 the railroad company upon the following grounds: (i) that the railroad 
 company was making a lawful use of its franchise in the manner contem- 
 plated* by the statute granting it, and that such use cannot be considered as a 
 nuisance in itself; (2) that in the exercise of such a franchise no negligence 
 was shown, no wanton or unnecessary disregard of the rights of the telephone 
 company; (3) that the damages occasioned to the telephone company were 
 not the direct consequences of the construction of the electirc road, but were 
 accidental damages resulting from its operation and were not recoverable. 1 In 
 another case, where the line of a telephone company had been erected six 
 years prior to the adoption by a street-railway company of electricity as the 
 motive power under a single-trolley system, and where, in consequence of the 
 trolley system, the telephone line was injured by the more powerful current of 
 the electric railway escaping in large quantities and passing through the earth 
 and the telephone lines, it was held that an injunction would lie against the 
 electric-railway company, and that, as it appeared that the injury to the tele- 
 phone company's lines could be prevented by the use of the double-trolley 
 system, the injunction would hold. It was also held that the electric-railway 
 company, though it had adopted a system which was the most efficient and 
 economical, would not be permitted to employ it to the injury of the telephone 
 company, particularly if such injury could be remedied by the electric com- 
 pany at less expense than the cost of changing the telephone company's 
 system, and that, if both parties stood equal at law, the telephone company 
 had the better equity by priority of time, because of the fact that it had 
 employed electricity some six years earlier than the railway company. 2 
 
 The use of terminal poles by a telephone company being the system here- 
 tofore adopted, the burden of showing that there is a better in general accept- 
 ance and reasonably adoptable by the company, so as to authorize the refusal 
 of permits for further poles, is on the city. 3 
 
 831. Electric-railway Lines and Telegraph and Telephone Circuits. 
 The foregoing case was practically overruled by the Court of Appeals, which 
 held that when a company was authorized to construct and operate its lines 
 upon streets and highways upon the express condition that they should not be 
 so constructed as to incommode the public use, it was part of the company's 
 compact with the State that the maintenance of its lines should not prevent the 
 adoption of any safe, convenient*, and expeditious mode of travel, such as the 
 electric-railway system was shown to be ; that the railway was occupying 
 the streets in such a manner as to expedite public travel and permit the public 
 use to which the streets were devoted; that the telephone company's franchise 
 
 Cumberland Teleph.. etc., Co. v. vliet Tpk. & R. Co., 56 Hun (N. Y.) 68, 
 
 United Elec. R. Co., 42 Fed. Rep. 273. 121 N. Y. 397, 61 Hun (N. Y.) 141. 
 
 And see Hoyt v. Jeffers, 30 Mich. 181. 'Commonwealth v. Warwick (Pa.), ^o 
 
 2 Hudson Riv. Teleph. Co. v. Water- Atl. Rep. 93 [1898]. 
 
831- 
 
 OPERATIONS PRELIMINARY TO COXS7*RUCTION. 
 
 556 
 
 was of a subordinate character, and that it could not complain that the electric- 
 railway system adopted interfered with the operation of its lines ; and it was 
 therefore held, as in the decision of the United States court last cited, that 
 the electric railway might operate its road by the single-trolley system, and 
 the telephone company was left to protect itself from the ill effects "of that 
 system. 1 
 
 It should be noted that herein was a circumstance itot always existing in 
 such cases, viz., that the telephone company was so to construct and operate 
 its lines as not to incommode the public use; and it would seem that the case 
 was reversed upon this condition. In this case both parties were making use 
 of the earth as a return circuit, and the electric-railway company contended 
 that it had an equal right with the telephone company to make use of its own 
 property and of the laws of nature in the conducting of its business, just as all 
 are entitled to the common use of air and light, which in a certain sense is 
 undoubtedly true. The court, however, went on and said further that the 
 electric-railway company "does not leave the natural forces of nature free to 
 act, unaffected by any interference on its part. It generates and accumulates 
 electricity in large and turbulent quantities, and then allows it to escape upon 
 the premises occupied by the plaintiff, to its damage. We are not prepared 
 to hold that a person even in the prosecution of a lawful trade or business, 
 upon his own land, can gather there by artificial means electricity and dis- 
 charge it in such volume that, owing to the conductive properties of the earth, 
 it will be conveyed upon the grounds of his neighbor with such force and to 
 such an extent as to break up his business, or impair the value of his property, 
 and not be held for the resulting injury. ' ' 2 
 
 An injunction by a telephone company against an electric-railway company 
 was denied by the court of Tennessee, but the latter company was required to 
 execute a bond to indemnify the telephone company for any damages awarded 
 against it. 3 
 
 Where a telephone company had acquired a prior right to the use of the 
 streets and had expended money on the strength of such right, the Ohio courts 
 held that an electric -rail way company had no right to disturb it unless it could 
 be shown that there was no other way in which the latter company could 
 enjoy its franchise to locate and operate an electric road. 4 The Superior 
 Court reversed this decision for the reason explained in the preceding cases. 5 
 
 1 Hudson Riv. Teleph. Co. v. Water- 
 vliet Tpk. & R. Co., 135 N. Y. 393. 
 
 2 Hudson Riv. Teleph. Co. v. Water- 
 vliet Tpk. & R. Co., 135 N. Y. 409, 410. 
 
 3 E. Tenn. Teleph. Co.' v. Chatta- 
 nooga Elec. St. R. Co. (Tenn.), 3oAmer. 
 & Eng. Corp. Cas. 562. 
 
 * City, etc., Tel. Co. v. Cincinnati, 
 etc., R. Co. (Ohio), 23 Wkly. L. Bull. 
 165. 
 
 6 Cincinnati, etc., R. Co. v. City, etc., 
 Teleph. Assn., 48 Ohio St. 390. And see 
 Wisconsin Teleph. Co. v. Eau Claire St. 
 R. Co. (Wis.), Cir. Ct. of Eau Claire Co. 
 [1890]; Rocky Mt. Bell Teleph. Co. v. 
 Salt Lake City R. Co. (Utah), Dist. Ct. 
 for 3d Dist. [1889]; East Tenn. Teleph. 
 Co. v. Knoxville St. R. Co. (Tenn.), Ch. 
 Ct. of Knox Co. [1890].; 
 
557 TELEGRAPH AND TELEPHONE LINES. 834. 
 
 832. Complainant must have Exercised Care, To be entitled to damages 
 or to an injunction. to prevent injury the complainant will be required to show 
 that he has exercised reasonable care to protect himself and to prevent the 
 injury, or that it could not have been prevented by exercise of reasonable 
 effort on his part. 1 
 
 In consequence of the development of electrical appliances and inventions 
 the decisions upon questions of electricity and its control cannot be considered 
 as even fairly well settled, and the development of electrical appliances and the 
 effect upon the thousands of interests which prevail may require changes in 
 the statements of the law as maintained and applied by the courts thus far and 
 as set forth in the text.'^ 
 
 833. Telegraph Lines are Avenues of Interstate Commerce. Like rail- 
 road and telegraph companies whose lines extend from one state to another, 
 telegraph companies afford avenues of interstate commerce and are agents of 
 the general government, in which capacity they are not subject to the jurisdic- 
 tion of the state. The rule with respect to such lines is the same as that ap- 
 plied to interstate railroads. The state may not pass laws which interfere 
 with the exclusive power of Congress over interstate commerce. This control 
 which the Federal Government has assumed over telephone and telegraph lines,, 
 such as authority to operate such lines and to occupy military or post-roads, 
 does not deprive a state of the power to require that in large cities all such 
 lines should be placed underground in proper subways. Such a statute is a 
 valid and proper exercise of the state's power of police regulation and cannot 
 be allowed to conflict with the powers of Congress. 3 
 
 A city council has no authority to pass an ordinance levying a license-fee 
 for telephone instruments in the city which are used by a telephone company 
 for the purpose of carrying on interstate business of the company. 4 
 
 Laws in some states have been passed requiring that all electric wires and 
 conductors in cities shall be placed underground in the streets, and be subject 
 to the control of local municipal authorities. Such an act has been held con- 
 stitutional and within police regulation, and as not impairing the rights of a 
 corporation which had previously received permission from the city council to 
 erect its wires. 5 
 
 834. Telegraph and Telephone Companies Taxed. By its power of police 
 regulation and control over persons and property within its limits the state may 
 impose taxes upon telegraph and telephone companies, and provide for the 
 proper conduct of their business. It may determine the manner in which 
 their lines shall be constructed and maintained, and exercise such general con- 
 trol as the public interests may require. 
 
 1 Cumberland, etc., Teleph. Co. v. '25 Amer. & Eng. E-ncy. Law 768. 
 United Electric Co., 42 Fed. Rep. 273. 4 City of Ogden City v. Grossman 
 
 2 See Keasbey on Electric Wires 152; (Utah), 53 Pac. Rep. 985 [1898]. 
 
 Dill, on Munic. Corp. (4th ed.), 734, 5 People v. _Squire (N. Y.), 14 N. E. 
 
 note. Rep, 820 [i 
 
834- OPERATIONS PRELIMINARY TO CONSTRUCTION. 558 
 
 Under statute laws authorizing cities to collect a license-fee on various 
 occupations, etc., a city council is authorized to pass an ordinance levying 
 a license-fee of five dollars on each telephone instrument operated by a telephone 
 company and used exclusively within the limits of the city for local business 
 and for which a rental charge is made. 1 
 
 of Ogden City v. Crossman (Utah), 53 Pac. Rep. 985 [1898]. 
 
CHAPTER XL. 
 
 RIGHTS OF WAY IN CONDUITS, PIPE-LINES, ETC., FOR WATER, 
 OIL, AIR, GAS, AND ELECTRICITY. 
 
 841. Rights of Way for Subways and Underground Conduits, Much 
 that has been said in previous chapters of rights of way and of the interest of 
 the public and of abutting owners in public ways could be repeated here under 
 this subject of subways. In fact, if the reader has not read what precedes, or 
 has not a fair knowledge of the principles of the law of property and of easements, 
 he should make it his first business to inform himself in those particulars.* 
 
 Much that has been written on the subject of rights of way of roads, rail- 
 roads, street railways, telegraph- and telephone-lines will shed light upon the 
 subject of rights of subways. The reader should also review the subject of 
 boundaries of ways and property in ways,f and what has been said with refer- 
 ence to the substances or materials which are conveyed or carried in subways. 
 
 The questions which arise most frequently in the construction and use of 
 subways are those which arise from the occupation and use of public ways for 
 a right of way ; and the determination of these questions depends largely upon 
 three conditions, which may vary in different localities. They are : (i) the 
 purpose for which the subway is to be used, and whether or not it is a purpose 
 incident to travel ; (2) the ownership of the public way whether the fee is in 
 the abutting owner or in the state or municipality ; (3) the powers granted to 
 the party by the legislature either generally, as in a company's charter, or by 
 the franchises conferred and acquired. These questions have been discussed at 
 considerable length in preceding chapters. The courts of different states are 
 not agreed upon any of them except, perhaps, the legislative powers conferred, 
 which must be express. 
 
 In some states, if the purposes for which the subway is to be used render 
 the street safer, better, and more healthful, it is held not an additional burden 
 upon the highway, but a use incident to travel. Such subways are those for 
 gas and electricity (and possibly oil) available or employed to light the streets ; 
 water-pipes from which water may be taken to sprinkle and clean the streets ; 
 sewers that may afford street-drainage, etc. These uses and purposes are held 
 incident to travel even though they be also used for municipal purposes, as for 
 
 * See CONTENTS preceding chapters. \ See Sees. 441-460, supra. 
 
 55Q 
 
842. OPERATIONS PRELIMINARY TO CONSTRUCTION. 560 
 
 / 
 the benefit and use of householders. A telephone and telegraph subway has 
 
 been held not incident to street purposes even though it be used for police 
 and fire service and incidentally for the maintenance of good order of the 
 streets. 1 
 
 A right to lay and maintain underground lines of pipe for the transporta- 
 tion of oil, gas, air, or water may exist in corporations created for public pur- 
 poses, or such a right may be acquired by private persons or corporations by 
 grant from landowners. Usually such rights of way are acquired and exer- 
 cised by guasi-public corporations chartered for the purpose. The right to 
 appropriate private property for the purpose -of a right of way is a right con- 
 ferred by the legislature, and the right to use public streets of a city for laying 
 such pipe-lines must be exercised under authority of the legislature. To 
 obtain such authority from the legislature the pipe-lines must partake of the 
 character of a public use, and the determination of what is a public use rests 
 with the legislature, subject to a limited review by the courts. 2 
 
 The right of a gas company to use public highways for the laying down 
 and operation of a gas-pipe requires a franchise which can be granted only 
 by the legislature or by some local or municipal authority empowered to 
 confer it. The right to lay gas-pipes in a country highway is not such a use 
 of the highway as was contemplated at the time of its condemnation. There 
 is a greater variety in cities of the uses to which such streets are put than in 
 those to which country roads are put; and in cities the use of the streets for the 
 laying down of gas-pipes is considered a legitimate use, subject, of course, to 
 municipal regulation. 3 
 
 842. Pipe-lines, Corporations created for the transportation of fluids 
 (petroleum, etc.) by means of pumping them through pipe-lines have been held 
 to be engaged in a business of such a public nature as to have the right of emi- 
 nent domain conferred upon them. 4 Some of the uses to which such pipe-lines 
 have been put and which have been considered public uses are the following : 
 the conduction of gas manufactured by a gas company ; 5 the transportation 
 and supply of natural gas ; the transportation of oil in a pipe-line ; the con- 
 veyance and supply of water ; the use of electric conduits for the transmission 
 of currents of electricity ; and the use of pipes for conveying compressed air. 6 
 
 The cases which do not regard such uses as public uses are where the 
 companies have not been authorized to take private property. A private gas 
 company has been held under no obligation to continue to supply its cus- 
 tomers any more than are those who supply any other articles. 
 
 843. Pipe-lines in Public Ways How Authorized. Without express 
 
 1 Whilcher v. Holland W. Co., 142 N. Barb. 410; Mill's Eminent Domain, 55. 
 Y. 626, 48 St. Rep. 196. See 29 Amer. & 4 Lewis's Eminent Domain (1888), 
 Eng. Ency. Law 16, 24 idem 46, 114. 172. And see Turnpike Co. v. American, 
 
 2 Jersey City Gas Co. v. Dwight, 29 etc.. News Co., 43 N. J. Law 381. 
 
 N. J. Eq. 242; 18 Amer. & Eng. Ency. 5 Bloomfield, etc., Nat, Gas. Co. v. 
 
 Law 457, 458. Richardson (N. Y.), 63 Barb. 437. 
 
 3 See Bloomfield G. Co. v. Calkins, 62 6 i8 Amer. & Eng. Ency. Law 458. 
 N. Y. 386; Kelsey v. King (N. Y.), 32 
 
56 1 RIGHTS OF WAY IN CONDUITS, PIPE-LINES, ETC. 844. 
 
 authority a municipal corporation cannot grant exclusive rights of its streets 
 for purposes of pipe-lines, and it is not settled in the courts as to how far a 
 highway may be appropriated for the use of pipe-lines and other burdens 
 without any compensation to the owner of the soil in the street. There are 
 numerous cases which seem to hold that at least a country highway may not 
 be used for the laying of pipes without the consent of the owner of the land. 1 
 Other cases hold that the owner of the fee in a highway is not entitled to 
 compensation for the subjection of the highway to the additional public use of 
 laying water-pipes under it. 2 
 
 The laying out of an alley by the owners of adjoining lots along the rear 
 of the lots, for the use of the several lots, has been held to make it subject to 
 the same uses as a city alley, and the owners of the lots have the right to lay 
 water-, gas-, 1 and sewer-pipes along it. 3 
 
 Injunction will issue at the instance of a -township to prevent the laying of 
 water-pipes in the township streets without its consent. 4 
 
 The general authority given by public statutes to towns to lay out ways 
 will warrant the construction by a town of a way along a strip already con- 
 demned by a city for the laying of its water-pipes, there being no act pro- 
 hibiting it, and the use of the land for laying water-pipes being in no way 
 inconsistent with the use for a way, and there being no material interference 
 between such uses, and no probability that there will be any such interference. 5 
 An ordinance authorizing the construction of water-works by a city may pro- 
 vide for the laying of mains on streets in which a private water company has 
 already laid mains. 6 
 
 844. Subways Constructed under License.* In Rhode Island it has 
 been decided that the right of a gas company to lay pipes was an easement, not 
 a license merely. Where a license was given to lay pipes it was held good 
 until revoked by the owner of the land or his grantees ; and that the employ- 
 ment, by such grantees, of another gas company to furnish gas through the 
 pipes thus laid was not a revocation of such license even though such other 
 gas company disconnected the pipes from the first company's main and con. 
 nected its own main with them. 7 In Georgia a license to lay pipes on land has 
 been held irrevocable after they are laid and expenses are incurred thereby ; 
 and a subsequent grantee of the land with notice is bound thereby. 8 
 
 1 Bloomfield, etc., Co. v. Calkins, 62 5 City of Boston v. Town of Brookline 
 N. Y. 386. And see Boston v. Richard- (Mass.), 30 N. E. Rep. 611. 
 
 son, 13 Allen (Mass.) 160. 6 Hughes v. Momence (111.). 45 N. E. 
 
 2 Bishop v. North Adams Fire Dist. Rep. 300. 
 
 (Mass.), 45 N. E. Rep. 925. And see 7 Providence G. Co. v. Thurber, 2 R. I. 
 
 Boyer v. Little Falls (Sup.), 38 N. Y. 15; Poughkeepsie G. Co. v. Citizens' G. 
 
 Supp. 1114. Co., 27 N. Y. Super. Ct. 214. 
 
 'Foran v. Mclntyre (Pa. Com. PL), 8 Rome G. L. Co. v. Meyerhardt, 61 
 
 26 Pittsb. Leg. J. (N. S.) 468. Ga. 287; 8 Amer. & Eng. Ency. Law 
 
 Inhabitants of Township of Franklin 1280, 1281; Tynon v. Despain (Colo.) 
 
 v. Nutley Water Co. (N. J. Ch.), 32 All. 43 Pac. Rep. 1039. 
 Rep. 381. 
 
 * See Sees. 661-670, supra. 
 
845- OPERATIONS PRELIMINARY TO CONSTRUCTION. 562 
 
 An abutting lot-owner who, under a license from a city, puts pipes under 
 the surface of a street to conduct water from a spring on his land to his build- 
 ings on other land, and so maintains the same for 21 years, does not thereby 
 acquire an easement by prescription, since his occupation of the street, being 
 under license from the city, has not been adverse and, the pipes being under 
 ground, has not been open and notorious as to the public. 1 When, however, 
 the water company's right to convey water in pipes buried in the highway 
 antedated the incorporation of the village and it did not appear that the fee 
 of the streets was in the village, it was held that the principle that no pre- 
 scriptive right in a highway could be obtained as against the public could not 
 be invoked. 2 
 
 845. Right to Enter and Open and Occupy Streets, Municipalities can- 
 not prohibit or prevent entry upon streets by water companies having the ex- 
 press and absolute right of entry by statute, but may only regulate the work 
 with regard to grades and convenience of public travel. Such right will not be 
 subject to the permission of the borough council unless specifically provided 
 for in the creative act. 3 
 
 If the franchise or charter be granted upon condition .that the consent of 
 the municipal authorities be obtained, it is not a perfected franchise until such 
 consent has been obtained, and the right to occupy and open the streets is 
 vested only when the consents required are obtained. 4 The question fre- 
 quently arises as to who are the municipal authorities whose consent must be 
 obtained when it is not expressed in the act. 
 
 846. The Act of Granting the Consent is Discretionary. The city 
 authorities may grant or refuse their consent, or may grant it upon such terms 
 and conditions as they choose to impose. 5 The commissioner of public works 
 cannot, by mandamus, be compelled to give permit to open street unless 
 party has well-defined rights thereto. The exercise of such care and authority 
 is discretionary. 6 
 
 A gas company inhibited by its charter from digging up the streets of the 
 city until the consent of the city government is obtained cannot be enjoined 
 by a taxpayer of the city on the ground that the act of incorporation is void, 
 that the right to grant permission to lay down pipes in the streets is vested in 
 the city and is of great value, and if sold would realize a large pecuniary 
 benefit to the city. The corporation of a city has an undoubted right to give 
 permission to a company to lay down their pipes beneath the surface of the 
 streets as a means of supplying citizens with an increased supply of gas. 7 
 They are not obliged to sell such permission or treat it as a part of the city 
 
 1 Elster v. City of Springfield (Ohio 351. 
 
 Sup.), 30 N. E. Rep. 274. 5 People v. O'Brien, in N. Y. i. 
 
 2 Boyer v. Little Falls (Sup.), 38 N. Y. 6 People ex rel. 3d Ave. v. Newton, 
 Supp. 1114. 112 N. Y. 404. 
 
 3 Forty Fort v. Forty Fort Water Co. 7 Smith v. Metropolitan G. Co., 12 
 (Pa.), 9 kul P 24i [1897]. How. Pr. (N. Y.) 187; Norwich G. Co. 
 
 4 Matter of Rochester R. Co., 123 N. Y. v. Norwich G. Co., 25 Conn. 24. 
 
563 RIGHTS OF WAY IN CONDUITS, PIPE-LINES, ETC. 847. 
 
 property which is to be used for purposes of city revenue. Nor is this power 
 to authorize the laying down of gas-pipes a part of city property to which the 
 corporate authority of the city is to resort for purposes of revenue. 1 
 
 When necessary, a city may, in order to make improvements, disturb or 
 remove railway tracks, pipes, and poles temporarily, although the use of the 
 franchises be seriously interrupted for the time being. Such companies, like 
 all others using the highways, may be required to submit to temporary incon- 
 venience and delays for the sake of public advantage. It has been held that 
 the construction of an underground street railway is not such a public work 
 as will justify the tearing up of a railway already laid. 2 
 
 The grant of a right to use the streets of a city on condition that the 
 consent of the local authorities be obtained, which consent has been obtained, 
 vests the company with the right to use the street as a franchise conferred by 
 the state. 3 
 
 When a franchise which is, in its nature, a contract and which does not 
 reserve to the legislature the power of repeal is once acquired under statute, 
 it cannot be divested by subsequent legislation. 4 
 
 847. Property in Pipe- lines. A company which owns a franchise to lay 
 pipes for the purpose of transporting oil, gas, or water has two kinds of 
 property therein, viz., (i) an incorporeal hereditament and easement in the 
 land through which the pipes are laid, and (2) the property in the pipes, which 
 is regarded differently in the several states. Some states regard the property 
 in pipes as a fixture to the land by reason of the easement therein, and others 
 as real estate pertaining to the main plant, and in yet others as personal 
 property, and in Massachusetts, by statute, as machinery. In Rhode Island 
 the nature of the property was likened to the right of a railroad company to 
 build and occupy its road, or a canal company its canal under the provisions 
 of its charter, which grants the power to take the land upon paying compen- 
 sation to the owners. 5 
 
 In England gas companies have, in different parishes, been held ratable 
 as occupants of the land by their apparatus, pipes, etc. , under statute, but a 
 water company was held not liable to land-tax for the land occupied by its- 
 pipes. 6 
 
 In a Rhode Island case 7 the question was thoroughly discussed, and in 
 the New England states, Pennsylvania, and New York the pipes seem to be 
 held to be fixtures, especially where the right of way has been granted by 
 
 1 Smith v. Metropolitan G. Co. (N. Y.), 5 Providence Gas. Co. v. Thurber, 2 
 12 How. Pr. 187. R. I. 15. See also Binney's Case (Md.), 
 
 2 West Phila. Pass. R. Co. v. Phila. 2 Bland 145; Boston W. P. Co. v. Boston 
 (Pa.), 10 Phila. 70. (Mass.), 29 Met. 202; Bishop v. North 
 
 8 Brooklyn v. Jourdon, 7 Abb. (N. C.) Adams F. D. (Mass.), 45 N. E. Rep. 925. 
 23; Jersey City G. Co. v. Dwight, 29 6 i8 Amer. & Eng. Ency. Law 459. 
 
 N. J. Eq. 242. 'Providence Gas Co. v. Thurber, 2 
 
 4 Brooklyn Cent. R. Co. v. Brooklyn R. I. 15. 
 C. R. Co., 32 Barb. 358. 
 
848. OPERATIONS PRELIMINARY TO CONSTRUCTION. 564 
 
 deed in fee. The pipes being annexed to the freehold, and a gas company 
 having an easement in fee, the pipes are held to be fixtures, and therefore they 
 may be rightfully assessed as real estate. 1 ' 
 
 In Iowa the land, machinery, and water-mains of a water company were 
 held to be real estate and appurtenant to the water-works or main structure 
 even though the pipe-lines were not laid upon the lots owned by the 
 company, and even though they extended into other townships. It was 
 argued that the pipe-lines acquired their real-estate character by being 
 appurtenant to the water-works, and that they would pass as incident to the 
 principal thing in a conveyance of the works without any conveyance of the 
 land where they were located; and that no easement was required except in 
 the place where the water-works and lots were situated. 3 
 
 In New York state the pipes of a gas company running under the streets 
 of a city, not being erected upon or affixed to the company's land, were held 
 not real estate under the statutes for the purpose of taxation, 3 but since May, 
 1899, they are, by special act of legislature, to be taxed as real estate. It 
 was also held in another case that incorporeal hereditaments were not subject 
 to taxation as land or real estate. 4 These are cases involving a question as to 
 whether such pipe-lines should be taxed, and to-day the law does not seem 
 to be well settled. 5 
 
 The right to bring v/ater through pipes across the grantor's lands is such 
 an interest in lands as requires the deed of grant to be subscribed, sealed, and 
 acknowledged or attested. 6 
 
 848. Grants of Exclusive Use of Streets for Subways.* A city may not 
 grant exclusive use of the streets for laying gas-pipes without direct authority 
 from the legislature. 7 The legislature may, however, in effect grant the 
 exclusive privilege to a gas company to furnish gas to a city for a term of 
 years by a general grant of power to cause such city to be lighted with gas. 
 While the grant carries with it by implication all such powers as are necessary 
 for the proper and convenient exercise of the authority expressly conferred, 
 it does not authorize the city council to grant an exclusive right to use the 
 streets of the city for the purpose of laying down gas-pipes for a term of years 
 or thereafter until the works shall be purchased from the grantee by the city. 
 A power to a city to light the city would authorize a contract for gas, and 
 would give the city power to grant the contracting party the use of the streets, 
 but not authority to give exclusive use for a definite period. 8 
 
 1 18 Amer. & Eng. Ency. Law 460. See 5 18 Amer. & Eng. Ency. Law 461 and 
 Franchise Tax Law, Laws of New York, references. 
 
 Extraordinary Legislature, May, 1899. 6 Nellis v. Munson (N. Y.), 15 N. E. 
 
 2 App. of Des Moines W. Co., 48 la. Rep. 739 [1888]. 
 
 324. And see Capitol City G. Co. v. 7 8 Amer. & Eng. Ency. Law 1277 and 
 
 Charter Oak Ins. Co., 51 la. 31. cases cited. 
 
 8 People v. Bd. of Assess., 39 N. Y. 81. 8 8 Amer. & Eng. Ency. Law 1278- 
 
 *Borrell v. Mayor (N. Y.), 2 Sandf. 1280. 
 552. 
 
 * See Sees. 792, 795, 8i'9, supra. 
 
565 RIGHTS OF WAY IN CONDUITS, PIPE-LINES, ETC. 849. 
 
 Neither is such contract objectionable or invalid by reason of the stipula- 
 tion that the city would not during its term erect water-works of its own; 
 there being no attempt thereby to create a monopoly, and the city reserving 
 the right therein to take, condemn, and pay for the works of the company at 
 any time. Taking into consideration the nature of the contract, the large 
 expenditure which it involved on the part of the company, and the ruinous 
 effect on its property which the direct competition of the city would neces- 
 sarily have, such provision is a lawful incident to the principal contract, and 
 amounts to little more than an agreement that the city would carry out the 
 contract on its part in good faith, and, if it should desire to establish water- 
 works of its own, would not enter into such competition. 1 
 
 Under an act of the legislature 2 empowering a city to grant the right to 
 erect and operate water- works for the use of the city, provided that at" the 
 expiration of the twenty years the city should purchase the works, if the grant 
 should not be renewed, and, if the price could not be fixed by agreement, 
 pay therefor the fair and equitable value, an ordinance was passed by the 
 city and a contract was made under which the works were erected by a water 
 company, which provided that on a failure to renew the grant, at the expira- 
 tion of twenty years, the city should purchase the works. It was held that 
 the provision for purchase was mandatory if the grant was not renewed. 3 
 
 A right to carry and conduct under lands, and therein to construct, 
 operate, and forever maintain, an underground main sewer and connecting 
 sewers, drains, manholes, and underground appurtenances, and to repair and 
 renew the same, does not include the right to remove the soil from one part 
 of the system to another in repairing and renewing such sewer. 4 
 
 849. Care of Subways. Negligence. Plaintiff owned greenhouses 
 situated on the westerly side of a street. Defendant gas company's main pipe 
 lay along the easterly side, and a service pipe, crossing the street under the 
 rails of an electric street railway, connected it with a street-lamp in front of 
 the greenhouses. The service-pipe was corroded by natural causes, or eaten 
 away by electrolytical action, and allowed gas to escape; but, the ground 
 being frozen, the gas percolated through the soil under the frozen crust till it 
 reached the greenhouses, and then came to the surface and destroyed 'the 
 growing plants within. There was a conflict of evidence on the question 
 whether the time since the pipe was laid was in itself long enough, under the 
 circumstances, to call for an inspection of its condition. It also appeared, 
 without contradiction, that prior to the freezing of the ground there had been 
 a strong smell of gas in the street at that point. It was held that the evi- 
 dence warranted a finding of negligence on the part of defendant in failing to 
 examine the pipe. 5 
 
 City of Walla Walla v. Walla Walla (C. C. A.), 62 Fed. Rep. 853. 
 
 Water Co., 19 Sup. Ct. Rep. 77 [1898]. 4 Butchers' Ass'n v. Commonwealth 
 
 2 Laws of Missouri. March 24, 1873. (Mass.), 47 N. E. Rep. 599 [1897]. 
 
 3 National W.-w. Co. v. Kansas City 5 Siebrecht v. East River Gas Co., 47 
 
850. OPERATIONS PRELIMINARY TO CONSTRUCTION. 566 
 
 850. Measure of Damages. On an appeal from an award of damages for 
 the appropriation of an easement in land for the laying of natural-gas mains, 
 the jury should consider the relation of the remainder of the farm affected to 
 the part condemned, the fact that the owners were deprived of the privilege 
 of improving certain portions of their land, and the liability of the soil and 
 crops to injury by leakage. 1 
 
 In an action for damages to land used for farming purposes, resulting from 
 the construction over it of a pipe-line, it is competent, in estimating the 
 injury to the property as a whole, to show that part of the land is ripe for 
 building improvements. 2 
 
 851. Other Rights of Way. There are perhaps other rights of way or uses 
 that may be met in construction work which have not been specially con- 
 sidered in this book, but the author feels that the discussion of those that are 
 treated will enable the reader to determine safely the rights and liabilities 
 existing under such rights so far as may reasonably be expected of him. In 
 case large interests are involved the engineer or architect or contractor or 
 builder or public officer would of course consult competent counsel at law. 
 It is out of the question in this short work to undertake to go very far into 
 the law upon the topics herein treated, which is almost boundless in its 
 extent and embraces so many different subjects. 
 
 N. Y. Supp. 262, 21 App. Div. 10. And 'Railroad Co. v. Cleary, 17 Atl. Rep. 
 
 see Sherman v. Fall River (Mass.), 2 Allen 468, 125 Pa. St. 442, distinguished; Wil- 
 
 524; Jutte v. Hughes, 67 N. Y. 267. son v. Equitable Gas Co. (Pa. Sup.) 25 
 
 1 Manufacturers' Natural Gas Co. v. Atl. Rep. 635. 
 Leslie, 49 N. E. Rep. 946. 
 
PART V. 
 
 FRANCHISES. 
 
 CHAPTER XLI. 
 CHARACTER AND KINDS OF FRANCHISES. 
 
 861. Character of a Franchise. A franchise is a special privilege granted 
 by the government to individuals and one which does not apply to the citizens 
 of a country in general and by common right. A franchise must have been 
 granted by the sovereign authority, and no franchise can be held which is not 
 derived from a law of the state. At common law a franchise was made a 
 branch of the king's prerogative subsisting in the hands of a subject; but this 
 idea of a franchise has been modified to agree with the modern prerogatives 
 of constitutional government. 
 
 It is a duty of a government to provide and maintain highways, bridges, 
 and ferries, to supply water and gas, and to make in various other ways pro- 
 vision for the comfort and convenience of the public. These duties are not 
 always assumed by the government, but are sometimes delegated to its citizens. 
 As an inducement for the latter to undertake such duties, more or less exclu- 
 sive privileges are granted. These privileges are the most common form of 
 modern franchises, and they are usually granted to corporations for good busi- 
 ness reasons. The power and duty of a government in granting a franchise 
 does not end with the mere matter of business policy; and while the corpora- 
 tions created for public purposes may constitute a minority in the many 
 corporate enterprises of to-day, yet the objects for which corporations are 
 created are universally such as the government wishes to permit. They are 
 deemed beneficial to the country, and this benefit constitutes in most cases the 
 sole consideration of the grant. 
 
 862. Public Character of Corporations. The tendency of to-day is to 
 lose sight of the public character of a corporation, and the result is to obscure 
 and render difficult of application the principles of corporation law. A 
 
 567 
 
862. OPERATIONS PRELIMINARY TO CONSTRUCTION. $68 
 
 powerful railroad corporation endowed with valuable franchises and subject to 
 important public duties is not likely to be regarded in the same light as an 
 ordinary manufacturing company. Early legislation regulated the formation 
 and control of corporations in a liberal manner. The aggregations of capital 
 materially aided in developing the resources of a new and growing country. 
 Special charters were granted which conferred valuable franchises in generous 
 terms, and the immediate and future interests of the state were not foreseen 
 and guarded as might have been expected under other circumstances. Tne 
 law of earlier decisions reflects this influence. The law of the present day 
 shows a new and conservative policy, which in some states reaches the 
 opposite extreme. Constitutional provisions in many states now prohibit the 
 incorporation of companies by special acts, but the general laws regulating 
 the formation of corporations admit of their creation for almost any lawful 
 purpose. Almost all of the early liberality of legislatures has disappeared 
 from the later statutes affecting corporations. This change has brought about 
 more or less conflict in the law of corporations, and much of this conflict may 
 be explained by this change of relation of corporations to the state creating 
 them. Certain corporations having been invested with such powers and fran- 
 chises as the right of eminent domain, and having received state or municipal 
 aid or having been created for public purposes, they have become agents or 
 trustees of the state as to the property secured by the exercise of their 
 powers conferred. 
 
 There is a distinction between a franchise of a corporation and the powers 
 of such corporation. To be a franchise the right possessed must be such 
 as cannot be exercised without the express permission of the sovereign power; 
 that is to say, a privilege or immunity of a public nature which cannot be 
 legally exercised without legislative grant. The right to carry on any par- 
 ticular business, whether belonging to a natural or an artificial person, is not 
 necessarily or even usually a franchise. The right to carry on a particular 
 business by a corporation organized under a special charter or general law is 
 not afrancfa'sebut it is a power, provided that such business may be conducted 
 by any citizen, who chooses to engage in it. 
 
 The right to build, own, manage, and run a railroad, and take tolls 
 thereon, is not, of necessity, of corporate character or dependent upon cor- 
 porate rights. It may belong to, and be enjoyed by, natural persons. A 
 distinction is made between the franchise and other property acquired by it. 
 A franchise is incorporeal. 
 
 The fact that a corporation is charged with certain public duties which 
 are not imposed upon all does not change its character as a private corpora- 
 tion. Private and public or guasi-pubYic corporations are distinguished in 
 several ways. The former should be distinguished from corporations having 
 certain franchises or engaged in business in which the public have an interest. 
 The public relations of private corporations arise from the acceptance of the 
 
569 CHARACTER AND KINDS OF FRANCHISES. 863. 
 
 franchises, the grant of which constitutes a contract binding them to the per- 
 formance of various public duties for which the franchise itself is the consid- 
 eration. Another class includes those which have engaged in business of such 
 a nature as to require regulation by law. 
 
 Corporations which are required to perform various public duties are rail- 
 road, telegraph, telephone, turnpike, canal, railway, water, gas, and electric 
 companies, which have received their franchises with the right of eminent 
 domain, municipal aid, exemption of taxation, the monopoly of carrying 
 on their business to the exclusion of others, or other grants which amount 
 to the legal permission to assume certain public relations from which the 
 public in general is debarred. In such companies the public has more or 
 less interest, which justifies laws regulating rates of freight and fares, charges 
 for service, prices of water, gas, etc., the fixing of tolls, and otherwise provid- 
 ing for the comfort and safety of passengers and patrons. 1 
 
 Corporations are frequently subject to certain other regulations for public 
 safety, morals, and convenience, by the police power of the state. Instances 
 where corporations have been incorporated and subsequently subjected to 
 police regulation are those regulating the manufacture and sale of intoxicating 
 liquors, the maintenance of lotteries, fertilizer maufacturing companies, etc. 
 
 863. Franchise of a Corporation. Subject to the restrictions of its con- 
 stitution, the state legislature alone has power to create corporations and to 
 endow them with franchises. A state may confer upon a corporation any 
 privileges it pleases excepting those which the constitution prohibits. The 
 charter of a corporation is itself a franchise, though it include very valuable 
 privileges. If granted unconditionally, it constitutes a contract and prevents 
 further legislative interference with the privileges conferred, and possesses a 
 value which is seldom attached to a franchise of to-day. In most of the 
 states the constitution prohibits the legislature from creating corporations by 
 special charter and state constitutions, or general laws reserve to the state the 
 right to amend or repeal all charters of private corporations. 
 
 Corporations may be formed by general incorporation laws to engage in 
 almost every variety of business enterprises, and the process required by these 
 statutes is so simple as to enable a corporation to be created with little trouble 
 and expense. The corporation of to-day has therefore lost its chief element 
 of value in the fact that a corporate charter is not an exclusive privilege, but 
 may be acquired by anybody with little difficulty. The right to be a corpora- 
 tion is a franchise because it is a grant from the government and a special 
 privilege to do that which would be unlawful otherwise. 
 
 All powers and privileges which a corporation possesses are derived from 
 
 this franchise or charter, and whether they be named in the charter, or held 
 
 by judicial construction of its terms, or read into its charter, or implied by 
 
 law from the grant of the charter franchise, the charter is nevertheless the 
 
 1 8 Amer. & Eng. Ency. Law 591. 
 
864. OPERATIONS PRELIMINARY TO CONSTRUCTION. 57O 
 
 measure of the power of authority of the corporation. If the charter creating 
 a corporation be right itself, and all the powers of the company be derived 
 from it, then it follows that all the lawful acts of the corporation must be 
 within the meaning of its terms. This principle is well established by the 
 cases; and however vague an idea may be conveyed, the ordinary use of the 
 word "franchise," as applied to a corporation, is in reference to the right 
 given by law to be a corporation, and, also, to the numerous and often ill- 
 defined powers derived from the same source. The first-named franchise, 
 i.e., the right to exist as a corporation, has usually little or no value and there- 
 fore many of the powers which depend upon it are no longer franchises of 
 consequence. The powers which are granted to corporations and which con- 
 stitute the chief value of the charter have been affected but little by changes 
 in the law. These are certain extraordinary privileges sometimes granted to 
 corporations, which stand in a peculiar relation of duty to the public, and 
 which are of much prominence and importance as franchises. Some of these 
 powers are the following, viz., eminent domain, exemption from taxation, 
 municipal aid, and a right to a monopoly. 
 
 864, Power of Eminent Domain. The right of eminent domain would 
 be a franchise of no value to a corporation unless it was formed for public 
 purposes, because it is a power of the government which could not be dele- 
 gated except for public purposes. In every franchise there is an implied 
 reservation to the state of the right of eminent domain. It is regarded as so 
 important and essential an element of sovereignty that no legislation can bind 
 the state to an agreement that it shall not be exercised. Franchises of cor- 
 porations, like other contracts or property, are subject to appropriation by 
 the state by right of eminent domain, and with no further restrictions than 
 apply in all cases, i.e., that the condemnation shall be for public use, and 
 that it is only authorized upon making just compensation to the owner. 
 
 865. Right of Exemption from Taxation. Other franchises which are 
 limited strictly to public purposes are those which exempt property from taxa- 
 tion. This exemption from taxation can never be implied, but must be 
 granted by clear, unequivocal, and valid contract. If the franchise of ex- 
 emption from taxation be lawfully granted, it becomes a contract the obliga- 
 tion of which cannot be impaired by future legislation. 1 
 
 It has been declared that the exemption of a corporation from taxation is 
 not a corporate franchise, but such a statement involves a serious contradic- 
 tion of all the best authorities in the definition of a franchise. If such an 
 exemption do not constitute a franchise, it is not easy to see what would come 
 within the terms of the accepted definition. A writer upon the subject in the 
 American and English Encyclopaedia of Law expresses the belief that those 
 decisions which declare that it is not a franchise are upon the doctrine that 
 in the creation of such franchises the strict rule of construction applies to all 
 1 8 Amer. & Eng. Ency. Law 596. 
 
571 CHARACTER AND K2NLS OF FRANCHISES. 868. 
 
 grants in derogation of common rights, according to which only those rights 
 may be included as are essential to the existence and purpose of the cor- 
 poration. 
 
 866. Right to Municipal Aid. Another grant of a franchise to corpora- 
 tions is that of municipal aid. This is sometimes in the form of a donation 
 of property, but is usually granted by authorizing subscriptions to the stock 
 and bonds of the railroad by the state or the counties, cities, or towns through 
 which the grantee of the franchise is to operate its lines or works, and which 
 are to be directly benefited by such works. 
 
 The only ground upon which such franchises are held to be ^constitutional 
 is that the taxation by which the money is raised is for a public purpose 
 because it is used to accomplish public ends. The constitutions of a number 
 of states, as amended, now expressly prohibit the grant of such franchises. 
 
 867. Right to a Monopoly. The most valuable and most common of 
 modern franchises are those which give exclusive privileges or monopolies. 
 Such franchises are common even though the constitutions of many of the 
 states prohibit the grant of such franchises except for purposes which are 
 strictly public. There are many things of such importance to the develop- 
 ment, comfort, and general welfare of communities that a grant to corpora- 
 tions formed for public purposes is not objectionable even though such 
 privileges are exclusive. Such are electric, gas, and water companies to 
 which is given the exclusive right to supply cities and towns; and such also 
 are other corporations endowed with like franchises or with such others as 
 more or less exclude competition by the very nature of the franchise bestowed. 
 
 A large number of corporations are brought into no such relations to the 
 public as require the discharge of public duties, because the obligations of the 
 company usually come from an acceptance of the franchise granting corporate 
 rights or from those obligations to exercise the ordinary powers or franchises 
 which accompany it. Unless the business in which the corporation is engaged 
 be such that the public interests require its regulation, such a company is free 
 to conduct its affairs in practically the same manner as individuals or partner- 
 ships. The same principles do not apply to those corporations which have 
 accepted the unusual and valuable franchises already referred to in detail, and 
 which may, like individuals under the same circumstances, select a business 
 which, from its nature, subjects them to a further responsibility to the public. 
 
 868. Contract Obligations of a Franchise. It is well established that the 
 grant of a franchise, in the charter of a corporation, constitutes a contract 
 the obligation of which cannot be impaired by subsequent legislation. The 
 law has been the subject of much criticism, but the force of the objection to 
 it is grounded chiefly upon theory. The rule has withstood all attacks, but 
 the force of the law has been changed by explanation and by legislation. 
 There are two other equally well-settled principles of the law which have had 
 the effect to almost nullify the rule stated. The first of these principles is 
 
869. OPERATIONS PRELIMINARY TO CONSTRUCTION. 
 
 that every grant of a franchise that is in derogation of common right will 
 receive a strict construction ; and the second, that every charter and the grants 
 it contains is accepted subject to the police power of the state, which may rrot 
 be granted away. In addition to these two rules or principles of construction 
 the state constitutions and general laws, or even the charters themselves, 
 usually reserve the power to amend or repeal the charters of all private 
 corporations. 
 
 However, the rule of law is as stated, that a franchise constitutes a 
 contract which may not be impaired by subsequent legislation, and it has 
 protected many franchises of corporations, of which the following are some 
 examples, viz. : lawfully granted monopolies; donation of an annual sum to 
 a college; exemption from taxation-; right to charge more than the usual rate 
 of interest ; the right of eminent domain ; the right to fix a tariff of charges 
 on a public road; the right to form a new corporation by consolidation with 
 another company; and the exemption of a company's servants from the duty 
 of serving upon juries or of working upon roads. 1 
 
 Most charters contain various provisions which are matters of general law 
 and not of contract, and are therefore subject to modification and repeal. 
 The legislature may validate a contract not within the company's franchise. 
 There are numerous ways in which questions arise as to how far individual 
 rights of stockholders can be affected by the legislature without impairing the 
 obligations of contracts. 
 
 869. Franchises ai*e Granted Subject to Police Power. The doctrine 
 that a grant or franchise is a contract has been frequently raised in efforts to 
 protect corporations from the operations of law passed in pursuance of the 
 police power of the states. It is well settled that the legislature cannot bar- 
 gain away the police power of the state; and while irrevocable grants of prop- 
 erty and franchises may be met with, they do not impair the supreme author- 
 ity to make laws for the right government of the state. No legislature can 
 curtail the power of its successors to make such laws as they may deem proper 
 in police matters. Therefore corporations are subject generally to remedial 
 legislation, like individuals. The state may impose penalties upon corpora- 
 tions for not performing their public duties. A railroad company may be 
 controlled in the matter of freight rates and fares; or as to the operation of 
 its trains; as to its liability to laborers and contractors constructing the road; 
 as to negligence causing death; as to fences, cattle-guards, and other improve- 
 ments; as to stopping before crossing a drawbridge; as to viaducts at cross- 
 ings; or as to sign-boards, flagmen, speed, whistling, and bell-ringing, and 
 numerous other matters of a similar character. 
 
 When the public safety or public morals require it, the legislature may 
 abolish or discontinue a business, and corporations formed for the purpose 
 
 1 8 Amer. & Eng. Ency. Law 620. 
 
573 CHARACTER AND KINDS OF FRANCHISES. 870. 
 
 of carrying on such business may be required to discontinue the objectionable 
 operations. 
 
 A city cannot, by a contract which permits a telephone company to con- 
 struct and maintain its line upon a certain street, deprive itself of the power 
 to enact such legislation as is necessary for the general welfare; and an 
 ordinance modifying such permission, or requiring the removal of the line to 
 another location, cannot be held unconstitutional, as an impairment of the 
 obligation of the contract, where it is designed for the public safety and 
 convenience. 1 The same applies to a business the continuation of which may 
 become a nuisance. So, too, the monopoly secured to the inventor in the 
 patent of an article does not prevent the operation of such police laws. 2 
 
 It has been held that the obligation of corporate contracts in grants or 
 franchises was not impaired by legislation which regulated the working-hours 
 of minors and women, or punished neglect or misconduct in the management 
 of a ferry, or regulated the price to be charged for water and gas, or inter- 
 rupted the business of a corporation which had become injurious to public 
 interests. 3 
 
 870. Franchises which are Subject to Legislation Affecting Remedies. 
 Another class of legislation which has been attacked as unconstitutional is 
 that which alters the legal remedies by or against corporations; the constitu- 
 tionality being attacked upon the ground that the grant of franchise consti- 
 tutes a contract. It is well settled that the remedies for the security of this 
 right and those by which liabilities are enforced as to the mode, the time 
 when, and the courts in which they should be enforced are not placed 
 beyond legislative control, but that they are inalienable. This principle has 
 been held where a three years' limitation in a railroad charter as the time 
 within which suit for damages for land taken might be brought was extended ; 
 also where a summary remedy against defaulting stockholders was given by 
 charter and was subsequently altered, and where a charter provision against 
 summary process by execution in the nature of an attachment against debtors 
 upon notes is no part of the corporate franchise and may be repealed or 
 altered. 4 
 
 It has been held that a different rule for service of process against a cor- 
 poration from that in force at its creation may be prescribed. A special 
 remedy given to a railroad company for condemnation of land may be 
 repealed in a general statute applying to all railroads. There is no element 
 of contract in the special remedy. 5 
 
 The word " person " has been held to include artificial as well as natural 
 persons unless the language indicates that it is used in a more restricted 
 sense. Statutes referring to persons may also apply, it seems, to corporations, 
 
 1 Michigan Tel. Co. v. Charlotte (U. S. 3 8 Amer. & Eng. Ency. Law 623, 624. 
 
 C. C.), 93 Fed. Rep. n [1899]. *8 Amer. & Eng. Ency. Law 624, 625. 
 
 -State v. Telephone Co., 36 Ohio St. 5 8 Amer. & Eng. Ency. Law 625. 
 296. 
 
8/1. OPERATIONS PRELIMINARY TO CONSTRUCTION. S74 
 
 and the question is one of proper construction of statutes. Corporations have 
 been held to be included within the terms and statutes which apply to the 
 following subjects: promissory notes; tax laws; statutes protecting lands of 
 persons from trespass or giving remedy lor damages caused by the exercise 
 and power of eminent domain; laws prohibiting persons from doing banking 
 business, or imposing liability in damages for injuries causing death, or pro- 
 hibiting contracts between municipalities and persons as to supplying gas. 
 On the other hand, corporations have been held not to be included within 
 the terms of United States confiscation acts or of statutes applying to the 
 formation of corporations. Under the statute of Anne a state is a corpora- 
 tion which may be the payee of a promissory note. Corporations have been 
 held not to be within certain tax laws or statutes to prevent nuisances, or 
 prescribing penalties for fraudulent claims against the government, or pre- 
 scribing penalties for employing minors more than a certain number of work- 
 ing-hours, or as being liable for larceny for taking the logs of another. 1 
 
 871. The Right to Amend or Repeal Charters Reserved, One of the 
 most important subjects to consider in the study of franchises is the right of 
 the state to amend or repeal them. It has been held that unless such a right 
 has been reserved in the grant of the charter, or unless the right to grant 
 franchises unconditionally has been denied by the constitution of the state, 
 when a franchise has been granted it may not be amended or the rights there- 
 under taken away without impairing the obligations of the contract, which is 
 contrary to the constitution of the United States and of many of the states. 
 At the time that the earliest franchises were granted in this country the com- 
 plications which have arisen from the grant of franchises and the exclusive 
 and vested rights under them were not anticipated. It was not until the 
 famous Dartmouth College case was decided that the attention of the courts 
 and legislatures was brought to the monopolies which might be created by the 
 grant of franchises if the right was not reserved to amend or repeal* them. 
 Judge Story, in his opinion in that case, suggested the desirability of reserving 
 such a right to amend and repeal charters. This right is now reserved in 
 almost all charters and franchises, and in many states the power of legislatures 
 to grant franchises which cannot be amended or repealed has been taken away 
 by constitutional amendment. The evident purpose of such reservations is 
 to prevent corporations from acquiring contract rights which may not be 
 amended or modified when the interests of the public seem to require it. 
 The doctrine which aims to prevent the acquisition of such rights has been 
 criticised and its scope and bearing have not been fully appreciated. The 
 reasoning upon the reserved power is likewise often obscure. The decision 
 of many questions which arise in the construction and determination of the 
 powers and rights of corporations which are quasi-public, such as railroads, 
 water companies, etc. , must depend upon the interpretation of rights of the 
 
 *8 Amer. & Eng. Ency. Law 626,627. 
 
575 CHARACTER AND KINDS OF FRANCHISES. 8? 1. 
 
 companies under their franchises or charters. It therefore becomes an 
 important question to the company which has invested large sums of money 
 under a charter or franchise whether or not the money invested under such 
 a charter or franchise is safely invested, and whether the rights acquired, 
 which rights may have been the chief inducement for the investment of such 
 large sums of money, are safe, or whether the legislature can at its own will 
 make such changes in the charter or franchise as will render the property 
 valueless or as will largely depreciate the stocks and bonds of the com- 
 pany. 
 
 It will not require special effort on the part of engineers, contractors, or 
 business men who are engaged in promoting enterprises to recall instances 
 in their own experience in which large sums of money have been invested 
 under the charter or franchise of a company, which investment would be 
 rendered well-nigh valueless if the legislature were permitted to amend or 
 alter the charter of the company so as to destroy important features of the 
 franchise. 
 
 In some jurisdictions it has been held that when the power to amend or 
 repeal a charter or a franchise has been reserved, the effect of it is to reserve 
 to the legislature exactly the same power of control over other charters that 
 it would have had if the constitutional provisions protecting the obligation of 
 contracts had not existed ; l and that such a reservation prevents the powers 
 of franchises conferred in the charter from becoming contracts, though they do 
 constitute grants by the legislature. 
 
 Other provisions of the federal and state constitutions may protect and 
 secure from legislative interference many valuable features of such grants; and 
 a right to amend or repeal franchises' and charters granted cannot be con- 
 strued so as to permit the legislature to change them. Constitutional limita- 
 tions upon legislative authority would prevent any attempts made in this way 
 to alter or amend vested rights the same as in any other case. Without 
 regard to any question of the obligation of contracts contained in charters, 
 the right of legislative interference with the rights of corporations should be 
 measured by the public interest in those affairs. If judged from this stand- 
 point, quasi public corporations must come in for the largest share of control. 
 In many acts of other classes of private corporations the public has no 
 interest whatever, and an attempted legislative interference which would be 
 valjd in the first case would be invalid in the second. 2 
 
 The effect of such a reservation of power to the legislature to amend or 
 repeal the charter of a company is shown in a case decided in Rhode Island. 
 The legislature passed a law which required employers to pay their employees 
 on the day of their discharge all wages earned by them without abatement or 
 reduction, and providing a penalty for their failure to pay as the statute 
 required. The court held that so far as natural persons were concerned the 
 
 1 See Sinking Fund Cases, 99 U. S. 700. 3 8 Amer. & Eng. Ency. Law 628. 
 
8/1. OPERATIONS PRELIMINARY TO CONSTRUCTION. 576 
 
 law was unconstitutional because it had the effect of impairing the obligation 
 of contracts and of limiting the right to contract, but that in respect to a 
 corporation, whose charter the legislature reserved the power to alter and 
 repeal, the constitution was not violated; that all the powers a corporation 
 has are created and granted by the legislative authority, and that by accepting 
 the charter the company agreed that they might be amended according to law. 
 The Rhode Island court even went further and held that the power of a cor- 
 poration to contract, granted by its charter, was not such a property that the 
 act of the legislature in modifying or limiting it could be called a taking away 
 of the company's property without compensation. 1 
 
 An act exempting city water-works from taxation so long as they should 
 be unproductive was held not to give a contract right, so as to prevent its 
 repeal by the constitution. 2 
 
 If the power to amend, alter, or repeal the charter be reserved, it is 
 evident that there was no intention to make the grant of certain franchises an 
 irrevocable gift. Belonging to this class are those franchises which exempt 
 the company's property from taxation, or which confer the right to fix such 
 charges as a railroad company shall deem reasonable, and in general all rights, 
 privileges, and immunities derived by the company's charter directly from the 
 state. 3 
 
 Whatever rights, franchises, or powers owe their existence to the granting 
 clause of the charter are lost when it is repealed. Therefore the legislature 
 may make any alterations or amendments of a charter granted which will not 
 defeat or substantially impair the object of the grant or any rights which are 
 vested under it and which the legislature shall deem necessary to secure either 
 that object or any public right. 
 
 There are many things relating to the public duties of corporations, such 
 as transportation companies, telegraph and telephone companies, water, gas, 
 and electric companies, and other companies, which, by reason of the right 
 to amend or repeal being reserved, are made peculiarly subject to legislative 
 control and are freed from any question of an obligation of contract contained 
 in their charters. It is not, however, necessary that the right to amend be 
 reserved in order that such right may be exercised and sustained. The doc- 
 trine that the police powers of a state cannot be bargained away is so 
 universally accepted that the legislature may exercise such a control over such 
 corporations in many cases. Where such a reservation has been made, it has 
 been held that a railroad company might be required to build a double track 
 and station-house, or to change its grade and alter its bridges for purposes 
 of safety and convenience. It may be compelled by general or special laws 
 to make changes in the level, grade, and surface of the roadbed, or to erect 
 
 1 State v. Brown, etc., Mfg. Co. (R. I.), 2 City of Newport v. Commonwealth 
 
 39 Amer. & Eng. Corp. Cas. 190 [1892]. (Ky.), 50 S. W. Rep. 845 [1899"]. 
 
 And see Wait's Engin. and Arch. Jurisp., S 8 Amer. & Eng. Ency. Law 628. 
 ec. 144. 
 
5/7 CHARACTER AND KINDS OF FRANCHISES. 873. 
 
 new structures and crossings over another railroad or of highways, or to build 
 station-houses at particular places and in a particular manner. It has be^n 
 held that the legislature may prescribe by whom, in what manner, and under 
 whose supervision the work required to make changes of grade, roadbed, etc., 
 should be accomplished, and in what proportion, according to their respective 
 interests, it should be paid for by the parties affected. Railroad companies 
 have also been required to make extensions of their lines, to make new con- 
 nections, and to consolidate with other companies; provided, however, that 
 in none of these instances a material change in the purpose of the corporation 
 or an interference with the rights of individual stockholders is- effected. 1 
 
 Under such a reserved power it has been held that the legislature may vary 
 the measure and thus enlarge the proportion of the profits which a mutual 
 life-insurance company is required by the terms of its charter to pay to a 
 charitable institution. Likewise various legislative acts have been sustained 
 which have increased the liability of the stockholders. 
 
 872. Power to Amend and Repeal Limited. It is well settled that the 
 power of the legislature to amend and repeal franchises of charters is limited. 
 Such a power is not arbitrary and does not authorize a material change in the 
 corporate enterprise so as to work a wrong under the guise of an amendment. 
 The legislature cannot impair the vested rights of stockholders. Their 
 interest in the corporate property may not be annihilated by the repeal of the 
 charter. Power is vested in the courts to protect those interests. Though 
 the consent of the corporation may not be necessary to the repeal, yet under 
 the power reserved to the legislature an alteration cannot be enforced upon it 
 until accepted by the corporation, or at least by a majority of its stockholders. 
 
 873. Limitation as to Property and Contracts. When rights under 
 a charter have been acquired and become vested, no amendment or alteration 
 of the charter can take away the property or rights which have become vested 
 in the legitimate exercise of the powers granted. Direct legislation by which 
 a state could appropriate property which was the subject of the grant in the 
 charter or acquired under it would be unconstitutional, and such an authority 
 obtained through a reservation in the charter would be equally so. Personal 
 and real property accumulated by a corporation during its lawful existence, 
 rights secured under contracts, or choses in action so acquired and which do- 
 not from their nature depend upon the general powers conferred by the 
 charter, may not be destroyed by such ' a repeal. The courts may, if the 
 legislature does not, provide some special remedy and enforce such rights by 
 the means in their power. Mortgages made under powers originally granted 
 cannot be vacated; debts contracted cannot be released. The reserved power 
 authorizes the state to provide for the due performance of contracts already 
 entered into. The legislature may not establish rules in regard to the manage- 
 ment and disposal of the assets of a corporation so that they shall be diverted 
 
 1 8 Amer. & Eng. Ency. Law 630. 
 
8/4- OPERATIONS PRELIMINARY TO CONSTRUCTION. 578 
 
 from, or divided unfairly and unequally among, the creditors and thus impair 
 the obligation of contracts, nor so that a part of such assets which properly 
 belong to the stockholders shall be diverted and thus injure vested rights. 
 
 Thus while the power of Congress over waterways connected with the 
 great rivers of the country is supreme whenever it chooses to exercise the 
 same, yet, before it has acted, the legislative power of the state within whose 
 borders the stream flows is competent to charter a corporation to improve the 
 same, and to give it a franchise to collect tolls. A franchise thus granted is 
 a vested right, and if Congress thereafter, by condemnation, takes such im- 
 provements, it is bound to make just compensation for the value of the fran- 
 chise, as well as for the physical property taken. l 
 
 A reserved right to amend or repeal when once exercised is not exhausted. 
 It may prevent the grant itself from becoming what it otherwise would 
 become, i.e., a contract with the state. A charter with such a provision 
 becomes a mere privilege subject at any time to be withdrawn or modified at 
 the will of the legislature. Sometimes this right to repeal or alter is reserved 
 by a constitutional provision, and at other times by general statute in force 
 at the time the corporation was created. The question as to whether under 
 the reserved power the reservation is wise, or one consistent with public in- 
 terest or the interest of the company, is for the legislature, and not to be 
 determined by the courts. It cannot be presumed that the legislature exer- 
 cised the power arbitrarily or unjustly. When the right to repeal the charter 
 on the happening of a certain event is reserved to the legislature it may enact 
 the repeal whenever the event happens without first invoking the judgment of 
 the court. If the exercise of a reserved right depend upon the misuse or the 
 abuse of the franchise, the authorities are not decided as to whether the legis- 
 lature shall determine the fact or whether it shall first be determined by the 
 courts. 
 
 874. Mortgage Sale and Transfer of Franchises, The franchises of 
 many corporations are practically of no value, and therefore the question as 
 to the power of selling and mortgaging such franchises does not often arise. 
 If the franchise of a corporation be valuable in itself or be conferred with 
 subordinate franchises having more or less the character of monopolies, it will 
 usually be found to have been granted for public purposes, and to require 
 the performance of certain public duties for which the corporation will be 
 held responsible. The cases which involve the right to transfer franchises 
 relate chiefly to matters similar to the foreclosure of railroad mortgages, which 
 mortgages cover not only the corporeal property, but also the franchise of the 
 company. The right to alienate franchises refers to such mortgages as cover 
 not only tangible property, but the franchises, and to other means of transfer 
 of the franchises of railroads and other corporations of a guasi-public charac- 
 
 1 Monongahela Navigation Co. v. Bridge Co. v. U. S., 105 U. S. 470, dis- 
 United States, 13 Sup. Ct. Rep. 622; tinguishcd. 
 
5/9 CHARACTER AND KINDS OF FRANCHISES. 8/4. 
 
 ter. Whether or not the doctrine will be confined to this class of guasi-public 
 corporations is not fully determined, but it is a settled rule supported by the 
 weight of authority that a corporation cannot mortgage, sell, or transfer its 
 franchises unless expressly authorized by the legislature to do so. The rule 
 is not universal, but it is generally held that when a franchise is conferred 
 upon a corporation the legislature considers the character of the grantee and 
 the restrictions which it places upon the corporation, and that therefore such 
 corporation cannot do anything which shall amount to a renunciation of its 
 duty to the public, or directly and necessarily disable itself from performing 
 it ; that it cannot, therefore, convey away its franchise and corporate rights. 
 If a company be granted a charter or franchise intended in a large measure 
 to be for the public good, the due and proper performance of its duties is the 
 consideration of the grant, and therefore any contract which disables the cor- 
 poration from discharging its functions by seeking without the consent of the 
 state to transfer its rights and powers to others, and to relieve itself of the 
 burdens which the charter imposes, is a violation of the contract with the 
 state, and is therefore void as against public policy. 1 
 
 In determining the right to alienate a franchise the terms in which the 
 authority is given must be regarded, and the vital part of the transaction is 
 the law under which it is made. Sometimes the charter or general laws con- 
 tain express authority to mortgage or alienate franchises as well as other 
 property, but even in such cases the literal transfer of a franchise is never 
 executed. Depending upon the power conferred, such a sale may amount to 
 a complete or partial surrender of a franchise and to the investing of the 
 transferee with corporate powers, such as the terms of the grant indicate shall 
 be conferred. Thus when a special statute undertook, upon a sale of a mort- 
 gage given by a railroad company, to invest the purchasers with corporate 
 capacity and to authorize them to reorganize, create new stock, and elect a 
 new board of directors, this was held to be in effect an original act of incor- 
 poration. Even though the transaction be declared to be a transfer, sale, or 
 conveyance of a franchise to be a corporation, it only amounts to a surrender 
 of the old charter and a new grant to the transferees with similar privileges, 
 as when general statutes provide that the purchaser of a railroad under fore- 
 closure of the mortgage may create a new corporation and thus practically 
 succeed to all the franchises of the old company, including the right to be a 
 corporation. 2 
 
 A transfer of a franchise by a corporation if made without legislative 
 authority may be ratified by subsequent enactment of the legislature, and 
 such ratification is held to constitute a grant of the franchise. Under the 
 terms of a power to transfer, an alienation of certain franchises under legis- 
 lative authority, as, for example, the foreclosure of a railroad mortgage which 
 covers the company's franchises, may not necessarily deprive the company of 
 
 *8 Amer. & Eng. Ency. Law 634, 634^. J 8 Amer. & Eng. Ency. Law 634*:. 
 
8/5- OPERATIONS PRELIMINARY TO CONSTRUCTION. 580 
 
 all its franchises, including that of its corporate existence, for the surrender of 
 this is not always a necessary part of the transaction. The legislative grant 
 of power to sell, mortgage, and transfer property and franchises, while it 
 includes generally the alienation of such franchises as are essential to the 
 property, will not imply any more. The franchise to build, own, or manage 
 a railroad is not necessarily a corporate right, but may be enjoyed by a natural 
 person. Therefore, under a power to sell or mortgage the property and fran- 
 chises of a company, it was held that the mortgagee, bondholders, or pur- 
 chasers at the mortgage-foreclosure sale did not acquire as part of the sub- 
 stantial rights intended to be secured the franchise of corporate existence. 
 
 A right to mortgage franchises would be of little value could the mortgage 
 only pass the corporeal property without the franchise. The necessary and 
 just construction is that on the foreclosure of a railroad mortgage the pur- 
 chaser acquires the right to operate the railroad; or he may exercise the 
 franchise of using streets and of supplying a city with gas, where the mortgage 
 foreclosed is that of the franchise of a gas company. When the power con- 
 ferred is to mortgage effects, contracts, etc., the right would be useless did it 
 not imply the right to mortgage the franchise, not, as already explained, the 
 franchise to be a corporation, but those franchises which are appropriate to 
 the nature of the property mortgaged. 
 
 Where a water company mortgaged, with covenants of warranty, f< all the 
 right, privileges, immunities, franchises, and powers which were granted in 
 and by " a certain city ordinance, it was held that the mortgage covered all 
 franchises owned by the company and enumerated in said ordinance, whether 
 the same were in fact granted by the city or by the state. 1 
 
 In Washington state a franchise granted by a city to an electric company 
 and its assigns, authorizing it to erect and maintain in the streets poles with 
 suitable cross-arms on which to string wires for transmitting electric currents, 
 is a local easement, and therefore assignable without the consent of the city.* 
 
 875. Transfer of Franchise of Eminent Domain. The transfer of this 
 franchise cannot be made without legislative authority. A power given to a 
 telegraph company to lease lines, fixtures, and apparatus has been held not a 
 power to build new lines. So, too, a power authorizing a railroad to lease 
 roads does not authorize the leasing of unfinished roads, or give to the lessee 
 any power of eminent domain, but this right remains in the lessor, and the 
 legislature may deal exclusively with the latter in amending charter provisions 
 respecting it. On the other hand, one who purchases, at a judicial sale, an 
 unfinished railroad, and who by the charter succeeds to all the estate and 
 property of the original company, and to all its contracts, franchises, rights, 
 privileges, and immunities, does thereby acquire the power of eminent 
 domain. The right of a company to have the damages for the appropriation 
 
 1 Andrews v. National F. & P. Works 2 Commercial E. L. & P. Co. v. Tacoma, 
 
 (C. C. A.), 61 Fed. Rep. 782. 50 Pac. Rep. 592. 
 
58 1 CHARACTER AND KINDS OF FRANCHISES. 876. 
 
 of land to its uses assessed in a particular mode is not a franchise which 
 passes to the purchaser of its property. It has been held to be a personal 
 privilege of the company and not transferable. 
 
 876, Transfer of Franchises of Exemption from Taxation. When a 
 statute authorizes the sale of a railroad with all the rights, franchises, privi- 
 leges, and immunities enjoyed by the defaulting company, it does not transfer 
 an exemption from taxation because a new constitution prohibits such a 
 grant. A foreclosure of a railroad mortgage executed under a power to 
 operate "on the credit of a company and on the mortgage of its charter and 
 works" confers on the purchaser only those franchises which have been 
 granted as appropriate to the construction, maintenance, operation, and use 
 of the railroad as a public highway, and to the right to make profit therefrom, 
 and it does not include an exemption from taxation. The earlier decisions 
 wherein the franchise of exemption from taxation has been held to be trans- 
 ferred by mortgage and sale were so decided because the terms of the statute 
 and the surrounding circumstances indicated such an intention on the part of 
 the legislature, and the same construction would be applied to-day where 
 property is exempted without reference to its ownership. 
 
 When the exemption from taxation is not a corporate franchise in the 
 sense that it is not necessary to the operation of the company's business, it is 
 then to be classed with franchises, and has therefore been held to be included 
 in the reservation, by the state, of power to withdraw the franchise of the 
 corporation. 1 
 
 An authority to mortgage the franchise of a corporation necessarily implies 
 the power to bring the franchise so mortgaged to a sale. It has been held 
 that authority to one company to purchase the franchise and property of 
 another was implied authority to any corporation which was willing to sell. 
 If a railroad company has authority to purchase and to sell all kinds 
 of property of every nature and quality, and to incorporate its stock with that 
 of another company, it may be held to have the power to sell the railroad to 
 another company just authorized to purchase it. A mortgage which includes 
 the franchise of a company does not invalidate its effect upon the property 
 which the company has power to mortgage. 
 
 The question whether the authority permits a conveyance of franchise 
 seems to be merely one between the state and the corporation, and a question 
 with which third persons have nothing to do. Where the act of an electric 
 street railway in crossing a railroad company's tracks on a public highway 
 does not take property of the complainant, and does not work some damage 
 to it, differing in kind from the damage which the complainant would suffer 
 in common with the rest of the community, the railroad company has no 
 right to an injunction merely because the respondent proceeds ultra vires or 
 usurps a franchise. 2 
 
 *8 Amer. & Eng. Ency. Law 634/fc. 2 Philadelphia R. Co. v. Wilmington 
 
 Ry. Co., 38 Atl. Rep. 1067. 
 
8/7. OPERATIONS PRELIMINARY TO CONSTRUCTION. $82 
 
 A provision in an act incorporating a water company that the act shall be 
 void unless the work is completed in one year does not prevent the company 
 from extending its works, after the expiration of the year, to meet the neces- 
 sities of the town to which the water is furnished. 1 
 
 877. Sale of Franchises on Execution. At common law the franchise of 
 a corporation cannot be seized and sold on execution, the reason being that 
 franchises are intangible and incapable of delivery by the sheriff to the pur- 
 chaser. Another reason often stated is that where franchises are granted for 
 the furtherance of public- purposes, creditors by enforcing their claims would 
 render the corporation incapable of fulfilling its public duties. The latter 
 reason is widely accepted as correct, but it need not apply to such property 
 as is not necessary to the proper performance of those duties; nor need it be 
 extended to the franchise of corporations as owe no such duties. Such ques- 
 tions may arise where a mortgage has been made which Covers both the 
 property and the franchise of the corporation. The cases show great confu- 
 sion on the subject. 
 
 The common law has been changed by general and special statutes. By 
 the constitutions of Illinois, Nebraska-, West Virginia, Missouri, Arkansas, 
 and Texas the rolling stock and movable property of railroads are declared to 
 be personal property, and the legislatures can pass no laws exempting it from 
 execution. When the sale of franchises is authorized by statutes, the 
 authority to sell is derived solely from those statutes, and the sale can be made 
 in no other manner than that pointed out therein. 
 
 Prior to the consolidation of the two cities a board of trustees held exclu- 
 sive control and management of the New York and Brooklyn Bridge, and, by 
 contract, had conferred upon plaintiff the privilege of maintaining its tube 
 line across the bridge. It was held that this action was within the scope of 
 their authority, and was binding on the commissioner who succeeded them, 
 subject to his continuing power to regulate, manage, and maintain the bridge, 
 and to his approval and reasonable regulations in respect to plaintiff's plans 
 and manner of construction. 2 
 
 By its act of incorporation plaintiff had received authority to construct 
 and operate its pneumatic tubes within and between cities. It was held that 
 this did not by itself authorize it to lay the tubes along the New York and 
 Brooklyn Bridge without further authority from the officers in control thereof. 2 
 
 878. Remedies against Corporations for the Enforcement of Public 
 Duties There are three remedies to be had for the enforcement of the public 
 duties of a corporation. They are mandamus, quo warranto, and indictment. 
 The action of mandamus against a railroad corporation to compel it to exer- 
 cise its duties as a public carrier of goods and passengers is brought by the 
 people through the attorney-general. It is also a proper remedy to compel a 
 
 I West Springfield v. West Springfield 'New York Mail & Newspaper Transp. 
 
 Aq. Co. (Mass.), 44 N. E. Rep. 1063. Co. v. Shea, 51 N. Y. Supp. 563. 
 
583 CHARACTER AND KINDS OF FRANCHISES. 88 1. 
 
 railroad company to deliver to a particular elevator whatever grain in bulk 
 may be consigned to it upon the line of its road, or to compel the operation 
 of a railroad notwithstanding there is a strike of its employees, and to operate 
 its road when it threatens to abandon it. In order for a court to issue a 
 mandamus the reciprocal right and obligation must be complete, legal, and 
 perfect. If a company fails to use or atfuses a public trust and the powers 
 vested in it by the state, it is within the sound discretion of the attorney- 
 general to determine whether to apply for a mandamus or to have the charter 
 of the company annulled. 1 
 
 A private person may, without the intervention of the attorney-general, 
 move for a mandamus to enforce the performance of a public duty not due to 
 the government as such. But the fact that an injured person has private 
 remedies for the damages which he has suffered by neglect of the corporation 
 to perform its duties precludes the state from its remedy by mandamus. 
 
 879. Extinguishment of Corporate Franchises. The extinguishment of 
 a corporate franchise, or the dissolution of the corporation, as it is often 
 spoken of, may happen in several ways, viz: (i) by the expiration of the 
 time limited in the charter; (2) upon the happening of a contingency pre- 
 scribed by the charter; (3) by the surrender of the franchise to the state; 
 (4) by act of the legislature; (5) by failure of an integral part of the corpora- 
 tion; (6) by forfeiture of the franchise in a proper judicial proceeding. 
 
 When the period of time during which a corporate existence was to con- 
 tinue has expired the corporation ceases to exist, and it cannot be continued 
 even by the unanimous consent of the shareholders. The legislature cannot, 
 by renewing the charter, revive the debts and liabilities owing to the original 
 corporation. If it is expressly provided in the charter that the corporation 
 shall exist for a definite period of time, and that its business shall be con- 
 ducted throughout that period, a majority of the shareholders cannot shorten 
 the period even with the consent of the state. If, however, the intention 
 expressed in the charter be merely to provide a limitation upon the duration 
 of the franchise, the majority of the shareholders may wind up the business of 
 the corporation whenever they deem it expedient so to do. 2 
 
 880. Extinguishment of Franchise on Contingency. A franchise is 
 sometimes granted where the charter requires that the existence of the corpora- 
 tion shall depend upon its performing or complying with certain requirements, 
 which if they be not performed and complied with, the franchise is in express 
 terms declared forfeited and terminated. In such case the non-performance 
 or fulfillment of the requirements of the statute will cause an actual termina- 
 tion and dissolution of the company without any act on the part of the state. 
 
 881. Extinguishment by Surrender. A private corporation may terminate 
 its corporate existence by surrender of its franchises to the state. To effect 
 
 1 8 Amer. & Eng. Ency. Law 617. 2 4 Amer. & Eng. Ency. Law 295. 
 
883. OPERATIONS PRELIMINARY TO CONSTRUCTION. 584 
 
 -such a termination the surrender must be accepted by the state in order that 
 the rights of creditors, and the possible right of taxation which the state itself 
 may have, shall be protected. Many of the states provide by statute a means 
 of voluntary dissolution. Non-user by a corporation of its franchise for a long 
 period of time may raise a presumption that the franchise has been surrendered 
 to the state. Neglect to elect officers and to perform corporate acts has been 
 held not of itself to put an end to corporate existence. The disposal of all 
 the property of a corporation or the ownership of all its shares by one person 
 will not work a dissolution. 
 
 882. Extinguishment by Act of Legislature. Under a clause of the 
 Constitution of the United States which provides that no state shall pass any 
 law impairing the obligation of contracts, the charter of a private corporation 
 has been construed to be an executed contract between the state and the 
 incorporators. The legislature cannot repeal, impair, or alter it against the 
 consent or without the default of the corporation. By reason of such con- 
 .structton it is customary to provide in special charters of corporations or in 
 the general corporation laws that the state shall have the right to repeal, alter, 
 or amend the charter in its discretion. If the power be reserved conditionally, 
 .as in the case of a certain event, the legislature may pass the repeal whenever 
 the event comes to pass. Under a reservation permitting the legislature to 
 alter the charter of a corporation the alteration must be reasonable and within 
 the scope and object of the corporation as it was originally chartered. In 
 determining whether an act of the legislature repeals a charter, the ordinary 
 rules of construction are applied. 
 
 883. Extinguishment by Failure of an Integral Part. A corporate 
 franchise may become extinguished when it has lost an integral part of its 
 organization, which the corporation itself has no means of supplying, and 
 without which the corporate powers cannot be exercised. Such an extinguish- 
 ment might occur. in the case of a municipal or ecclesiastical corporation, and 
 in the case of clubs and other societies where all of the members are dead or 
 departed. It has been held that if the corporation refused to elect officers 
 until all are dead who could make an election, the corporation is dissolved. 
 Whenever a corporation is reduced to such a state as to be incapable of acting 
 and continuing itself it is at an end. 
 
 Such an extinguishment could not occur in the case of a private corpora- 
 tion with transferable shares and whose officers are elected by the stockholders. 
 In such a corporation the membership is always continued by the gift, sale, 
 bequest, or descent of shares of stock. The shares of stock must belong to 
 some person or persons, and those persons are the members of the corpora- 
 tion. Property is held not to be an essential or integral part of a corporation, 
 .and its existence is not terminated, therefore, by the insolvency of the corpora- 
 tion, nor by the appointment of a receiver, nor by proceedings in bankruptcy. 1 
 
 *4 Amer. & Eng. Ency. Law 302. 
 
$85 CHARACTER AND KINDS OF FRANCHISES. 886. 
 
 884. Extinguishment by Forfeiture. A franchise of a company may be 
 extinguished by forfeiture of its charter in a judicial proceeding where the 
 cause of forfeiture is judicially ascertained and adjudged. The suit to deter- 
 mine the forfeiture must be at the instance and under the authority of the 
 state. There are two modes of procedure at common law to enforce such a 
 forfeiture : one by scire facias, the' other by a writ of quo warranto or by in- 
 formation in the nature of quo warranto. Such suits are instituted when a 
 corporation has been guilty of misuser or non-user of its franchise, or when it 
 has departed from the objects for which it was created, or when it has been 
 guilty of abreach of trust, and is therefore liable to have its franchise forfeited. 
 If a corporation neglect to perform duties which it has assumed for the benefit 
 of the public, or which have been imposed upon it by reason of public policy, 
 it renders itself liable to forfeiture. Such duties have been required to be 
 performed as a condition subsequent to the granting of the charter. 
 
 When a private corporation has become wholly insolvent and is prevented 
 from carrying on its business with safety to its creditors and to the public, its 
 affairs should be wound up. A failure on the part of the corporation to per- 
 form its duties in this respect may be punished by a dissolution at the suit of 
 the state. It is not every wrongful act committed by a corporation that will 
 revoke its charter, though a single act may be a ground for forfeiture. 
 Repeated failures to act, which are not omitted willfully or negligently and 
 which do not injure any one and are not expressly forbidden by the charter, 
 will not be sufficient reason for a revocation of the charter. 
 
 885. Effect of Extinguishment. When a corporation has lost its franchise 
 by forfeiture, surrender, or otherwise, it wholly ceases to exist in the eyes of 
 the law and will no longer be recognized as a corporate body. Debts either 
 due to or from the corporation are extinguished, and suits which are brought 
 by or against it are abated. In this country when a corporation is dissolved 
 it is a rule that the capital or property and debts due to an ordinary trading 
 and manufacturing corporation constitute a trust fund for the payment of 
 creditors and stockholders. The courts will lay hold of such a fund wherever 
 it may be found and apply it to the purposes of the trust, and they will never 
 allow a trust to fail for want of a trustee. Many of the states have passed 
 statutes providing methods whereby the affairs of corporations that have been 
 dissolved may be wound up. They provide in some states that the company 
 shall continue as a corporate body for the purpose of prosecuting and defend- 
 ing suits and winding up its affairs. In other states trustees or receivers are 
 appointed for settling up the affairs of the company. 1 
 
 886. Taxation of Franchises. A franchise of a corporation is deemed to 
 be property, and unless it is granted by act of Congress or expressly exempted 
 it is taxable either as property or under the principle of excise. It has 
 frequently been held that franchises, such as those of a water company, or of 
 
 1 4 Amer. & Eng. Ency. Law 308. 
 
8 8 /. OPERATIONS PRELIMINARY TO CONSTRUCTION. $86 
 
 a bridge company, or of a railroad company, are property, and are as proper 
 subjects of taxation as any other property. 1 
 
 The United States courts have held many times that the charter of a cor- 
 poration does not open to the state any source of revenue; that it creates a 
 valuable property which, like all other property, the state may require to con- 
 tribute to the support of the government. 2 The franchises of telegraph 
 companies, water-works companies, steamboat and railway and other trans- 
 portation companies have been held subject to tax. A company engaged in 
 collecting, storing, and selling ice has been held not a manufacturing concern 
 and therefore within the exception of companies subject to taxation. 3 The 
 only limitation upon the exercise of the power to tax a franchise is in the dis- 
 cretion of the legislature. 
 
 Franchise taxes are^ measured or determined in a variety of ways : some- 
 times of the dividends earned, at other times by the capital stock issued, and 
 in still others by the extent of business transacted. It may also depend on 
 the net earnings or the gross receipts, or on the average amount of deposits, 
 on the market value of the shares of stock, or on the amount of original stock 
 actually paid in. 
 
 It is sometimes quite essential that franchise taxes should be distinguished 
 from property taxes, but no satisfactory rule for making such a distinction has 
 yet been established. One that is often adopted is that a tax according to 
 valuation is a tax on property, while a tax imposed according to nominal value 
 or measured by some standard of mere calculation may be a franchise tax. 
 The distinction arises in cases of taxation of capital stock and of bank 
 deposits, because if the tax be a franchise tax, then it cannot be avoided on 
 the ground that the property of the corporation is otherwise taxed or that it 
 is non-taxable. 
 
 887. Corporate Charters and Franchises. The subject of franchises, if it 
 be made to include charters of incorporated companies, is a broad one, and it 
 would require a book of considerable size to undertake to treat it fully or in 
 anything like a comprehensive manner for the use of lawyers. There are good 
 books upon the subject of corporations to which the reader is referred if he 
 desires to go technically into the law upon the subject. The purpose of this 
 book is, and will be, to give to the reader a general knowledge of the law of 
 real property and of franchises, and a particular and detailed knowledge of 
 those subjects with which an engineer, architect, or surveyor has most to do 
 and to deal. The subject of estates and of titles, and the transferring of prop- 
 erty, or the interpretation, construction, and application of franchises, is the 
 legitimate business of a lawyer and should not be undertaken by an engineer. 
 The object of treating the subjects at all in this book is to give to the 
 engineer, architect, or promoter such a general knowledge of the subjects 
 
 1 25 Amer. & Eng. Ency. Law 631, 632. 3 25 Amer. & Eng. Ency. Law 634. 
 
 2 Burroughs on Taxation 168. 
 
CHARACTER AND KINDS OF FRANCHISES. 887. 
 
 treated as shall enable him intelligently to understand the situation and to 
 gather together such facts and conditions as will present a case fairly and 
 clearly to the attorney of the project, that the latter may determine the ques- 
 tions of law without being required personally to inspect or investigate the site 
 of the proposed works. If that object has been accomplished, the author may 
 congratulate himself and will feel that he has done a good service. 
 
INDEX. 
 
 References are to sections. 
 
 See also CONTENTS. 
 
 ABANDONMENT : 
 
 Of easement, 642-650 
 
 Of possession, what is, 530 
 
 Of irrigation rights, 76 
 
 By tenant, is not a surrender, 18 
 
 Of right of way : 
 
 Does not occur, when, 755 
 
 Presumed, by non-user, 755 
 
 May forfeit rights, 755 
 
 Reversion to abutting owner, 456 
 Evidence tending to show, 76 
 Loss or railroad by mortgage sale, is not, 
 
 736 
 
 ABBREVIATIONS : 
 
 Used in a description, 560, 561 
 Judicial notice of, 561 
 
 ABUTTING OWNER: 
 
 (See also OWNER, LANDOWNER.) 
 Property in streets and ways, 441-446 
 Sometimes owns private streets, 453 
 Eights of private parties in public streets, 
 
 759 
 
 Fee of street, belongs to, 456 . 
 Rights of, to soil in street, 442 
 Should own to center of street or stream, 
 
 446 
 
 Who owns beyond middle of street, 759 
 Reversion of streets to, 456 
 All rights of canal company revert to, 444 
 On railway, canal, etc., 444 
 Contribute to formation of public ways, 454 
 Rights pertinent to property, 759 
 Retains fee-simple title and exclusive own- 
 ership of soil in rights of way, 444 
 Rights of, how violated, 442 
 Rights of, not affected by changes in street, 
 
 445 
 
 Has right to unobstructed street, 759 
 Action by, for obstruction of streets, 441 
 Measure of damages for obstructing 
 
 streets, 762 
 Must make objections within reasonable 
 
 time when rights are interfered with, 
 
 763 
 Entitled to damages for diversion of street, 
 
 Injured by public improvements, 186 
 
 May prevent erection of telegraph lines in 
 
 street, 814-816 
 
 Causing injury by post set on highway, 717 
 Protected against appropriation of street 
 
 by railroads, 759 
 
 ABUTTING OWNER Continued. 
 Action against company erecting depot in 
 
 street, 721 
 
 Injuries from elevated roads, 764 
 Injured by construction of street railway 
 
 781 
 
 May not enjoin use of street by railway, 786 
 Rights of, assigned to railroad company, 
 
 759 
 
 Consent of, required to use streets, 787 
 Consent to operation of cable railway, 789 
 Consent to operation of railway in street, 
 
 789, 790 
 
 Suffering special injury, 762, 763, 781 
 Who sets out shade-trees, 319, 717 
 ABUTMENTS : 
 
 (See also BRIDGES; HIGHWAYS; PIERS ; 
 
 RIPARIAN OWNERS ; STREAMS.) 
 Should not deflect stream against other 
 
 structures, 137 
 
 ACCEPTANCE: 
 
 Of dedication, 701-706 
 
 ACCRETION : 
 
 Defined and described, 371-377, 424 
 
 Of laud by action of water, 371-400 
 
 Accompanies erosion, 377 
 
 Must be slow and imperceptible, 371-379 
 
 Value of, due to proximity to stream, 388 
 
 Conditions necessary to, 371-379 
 
 Land is not, when, 378 
 
 Land goes to whom, 371-379 
 
 Property rights in, depend upon what, 371- 
 
 390 
 
 Becomes public property, when, 379 
 To public streets and ways, 378, 379 
 At foot or end of street, 379 
 To right of way of railroad, 379 
 Effect of, on boundaries, 377 
 Changes boundary, 372, 423 
 Boundary follows changes in stream due 
 
 to, 371-420 
 
 Upon lakes, ponds, and harbors, 381 
 To shore of island, 432 
 Deposited on site of island washed away,, 
 
 380 
 
 Island joined to mainland by, 378 
 Inside of line belongs to whom, 381 
 Railroad's right to, 382 
 Owned by riparian owners, 378 
 -Value of, 388 
 Division of, depends on value, 388 
 
 589 
 
590 
 
 INDEX. 
 References are to sections. 
 
 ACCRETION Continued. 
 How divided, 383 
 
 Boundaries of land acquired by, 383 
 Determination of lines bounding, 383 
 Title to, is from state, 381 
 Filling regarded as, 382 
 Lease of, includes what, 378 
 Caused artificially, 382 
 Acts to increase, 382 
 Bights in, when created artificially, 382 
 
 ACQUIESCENCE : 
 
 (See also AGREEMENT AND ACQUIESCENCE ; 
 ADVERSE POSSESSION ; ARBITRATION ; 
 BOUNDARIES; SURVEYING.) 
 Means of establishing boundaries, 368, 491- 
 
 510 
 
 In boundary by mistake, 504 
 May amount to a license, 661-670 
 
 ACREAGE : 
 
 (See also AREA; BOUNDARIES; CONFLICT OF 
 
 CALLS; SURVEYS.) 
 
 Against courses and distances, 588-597 
 Given, includes bed and bank of stream, 
 
 when, 411 
 Action for deficiency in, 411 
 
 ACT: 
 
 (See CONGRESS; LEGISLATURE; STATUTE.) 
 
 ACT OP GOD : 
 
 Easement extinguished by, 648, 649 
 ACTION OF: 
 
 See TOPIC OF ACTION. 
 ACTUAL POSSESSION: 
 
 Defined, 520 
 
 Acts evidencing, 520 
 
 To constitute, mining must be prosecuted, 
 
 how, 527 
 Surveying of land and paying taxes is not, 
 
 Title to land outside of line described in 
 deed may be acquired by, 526 
 
 ADDITIONAL BURDEN : 
 
 (See also LAND; LATERAL SUPPORT; 
 
 STREET.) 
 
 Lateral support required for, 324 
 Telegraph lines in streets are, 814 
 Steam railroad on street is, 756 
 
 ADJOINING OWNERS . 
 
 Bights of, against one another, 311-350 
 In a description of land, 583-585 
 Against courses and distances, 583-585 
 Against points of compass, 584 
 Land described by, and excess, 597 
 Boundary located by agreement, 467, 495 
 Can demand a correct location of boundary 
 
 line, 504 
 
 Adverse possession will fix fence as bound- 
 ary, 501 
 Cannot prevent neighbor from building to 
 
 dividing line, 314 
 
 May be required to remove projections, 336 
 In excavating must furnish artificial sup- 
 port to neighbor's land, 323 
 Own what part of party-wall, 338 
 To pay cost of party-wall, when, 343 
 Must give notice of intention to make ex- 
 cavations, 322 
 
 Light and air of, diminished by erection of 
 building, 301 
 
 ADJOINING OWNERS Continued. 
 Are joint owners of fence on dividing line 
 311 
 
 Becovery for overhanging branches, 317 
 Either may lop off branches of line-trees 
 
 314 
 To prevent damage may cut branches and 
 
 roots of neighbor's tree, 316 
 Liable for trespass for gathering overhang- 
 ing fruit, 315 
 
 Liable for preventing tee-owner from gath- 
 ering fruit, 315 
 One may not destroy tree without consent 
 
 of the other, 313 
 Bequired to grant license to enter premises 
 
 to protect buildings, when, 324 
 Duties to care for roof-water, 183 
 Bights to air, light, and view, 301-310 
 Bights in underground waters, 251-280 
 Drawing gas from neighbor's land, 282 
 
 ADJOINING TRACT: 
 
 Measurement to, 607 
 
 A cornering estate is, 585 
 
 ADVERSE POSSESSION: 
 
 (See also AGREEMENT AND ACQUIES- 
 CENCE ; ADVERSE USE ; COLOR OF TITLE ; 
 POSSESSION ; PRESCRIPTION.) 
 Defined, 32, 514, 516, 521, 533 
 Brief history of, 513 
 
 And prescription distinguished, 672-674 
 Consists of six elements, 715 
 Character of use necessary to, 521 
 Must be actual, 520 
 Must be open, notorious, and hostile, 514, 
 
 524, 528 
 
 Adverse and hostile, explained, 516, 517, 675 
 Must be continuous and uninterrupted, 
 
 529 
 
 Continuity of, not destroyed, when, 530 
 Must be strictly proved, 517 
 Must be intention to claim and hold, 517, 
 
 518 
 
 What constitutes notice of, 528 
 Owner must have notice of, 528 
 Ignorance of owner, 528 
 Ignorance of occupant and its effect, 518 
 Bights by, in land, 511-540 
 What is sufficient inclosure, 522 
 Sufficient evidence that one has had, 521 
 Neglect and abandonment will work for- 
 feiture of, 530 
 
 Owner building over line by mistake, 336 
 Determined by location and character of 
 
 land, 521, 531 
 
 Of wild, uninhabited lands, 521 
 Of mines, quarries, vaults, subways, 527 
 Of part of light and air, 307 
 By tenant, licensee, purchaser, trustee, and 
 
 members of owner's family, 516 
 Tenant for life cannot gain title by, 16 
 Surrender and disclaimer necessary, when. 
 
 516 
 
 By vendor, 516 
 Of several occupants may be united, when, 
 
 686, 687 
 
 By railroad companies, 536 
 By a railroad under verbal gift, 526 
 Permitted by trustee, 516 
 Must be confined to one spot, 521, 526 
 Occupation must be exclusive of part 
 
 claimed, 525 
 
INDEX. 
 
 ^References are to sections. 
 
 .ADVERSE POSSESSION Continued. 
 
 Different periods of, of separate parcels, 
 cannot be united, 521 
 
 Owner acquires title by, when, 502 
 
 Ripened into a title, cannot be waived by 
 agreement, 514 
 
 Benefit of, will go to person having better 
 title, 532 
 
 Required to fix boundary when no agree- 
 ment, 502 
 
 Fixes boundaries, when, 368, 502 
 
 Land acquired and boundaries determined 
 by, 511 
 
 Interference of claims, 532 
 
 Overlapping claims, 532 
 
 Against the public or the state, 534, 682-685 
 
 Under agreement and acquiescence, 501, 
 502, 519 
 
 Disabilities that prevent, 688 
 
 Tacking husband's and widow's, 687 
 
 Under color of title, 524 
 And good faith, 533 
 Occupant is confined to land described, 
 
 526 / 
 
 When nothing to limit claims of, 526 
 Should be registered, when, 525 
 Acquires title to all that his instrument 
 of title describes, 524 
 
 ADVERSE USE : 
 
 (See also ADVEESE POSSESSION ; PRESCRIP- 
 TION.) 
 
 What constitutes, 185, 521, 675-682 
 
 Must be open, adverse, exclusive, and un- 
 interrupted, 675-682 
 
 Must be open, not by stealth, 528 
 
 Interruption of, 186, 676-680 
 
 Methods or means of interrupting, 680 
 
 Limits prescriptive rights, 681 
 
 Sufficient to sustain prescriptive right to 
 maintain nuisance, 212 
 
 Does not exist, when, 185 
 
 Disabilities that prevent, 688 
 
 Instances of, 521 
 
 Of dam to raise water, 185 
 
 Will not confer exclusive right to use of 
 water, when, 212 
 
 By several occupants, 686, 687 
 
 Connected by privity of contract, blood, or 
 estate, 686 
 
 Tacking corporations and individuals, 687 
 
 Against the state or the public, 534, 682-685 
 
 AGREEMENT : 
 
 (See also ARBITRATION; BOUNDARIES; 
 DEEDS ; GRANTS.) 
 
 Boundaries established by, 368 
 
 Landowners may establish boundary by, 
 491-510 
 
 Effect of survey establishing boundary may 
 be waived by, 467 
 
 To await an award is a submission to arbi- 
 tration, 463 
 
 Of boundary, a submission to arbitration, 
 470 
 
 Between riparian owners as to boundaries, 
 378, 491-510 
 
 To revoke submission it should be in writ- 
 ing, when, 468 
 
 Fora survey not followed by possession, 
 
 In regard to fixtures, 8 
 
 AGREEMENT Continued. 
 Between landowner and owner of fixtures, 
 
 governed by, 8 
 Cannot affect rights of land purchaser, 
 
 when, 8 
 
 Reserving rights of light and air, 307 
 For party-wall, 343 
 
 AGREEMENT AND ACQUIES- 
 CENCE : 
 
 (See also ADVERSE POSSESSION; ARBITRA- 
 TION ; BOUNDARIES.) 
 As to boundaries, 491-510 
 Proof of, must be shown, 497 
 Parties to, are bound by, 495-510 
 Is founded on mutual promises and con- 
 cessions, 495 
 Of boundary between parties is bindincr 
 
 496-510 
 
 With knowledge of facts makes an estop- 
 pel, 499 
 No estoppel unless an agreement express 
 
 or implied, 499 
 
 Possession is adverse, when, 519 
 Time of occupation required, 501 
 Period of possession depends upon express 
 
 agreement, 502 
 
 Acquiescence and occupation must be for 
 full statutory period, if no agreement, 
 501 
 
 Title depends on force of parol and on oc- 
 cupation, 498 
 
 AIR: 
 
 (See also EASEMENTS ; GAS ; LIGHT AND 
 .AiR; SMOKE.) 
 Prescriptive right to, 326 
 Conduits for, 341-860 
 
 ALLEYS : 
 
 See BOUNDARIES; HIGHWAYS; STREETS. 
 
 ALLUVION ; 
 
 (See also ACCRETION ; BANKS; RELICTION; 
 
 SHORES; STREAMS.) 
 Defined and described, 377, 424 
 Formed on riparian owner's lands, 383 
 Deposits against an island, 432 
 Title to, vests in whom, 378-383 
 "ALONG" : 
 In a description, 363, 406, 407 
 
 AMBIGUITY : 
 
 (See also DESCRIPTION.) 
 In a description, 543, 546, 550, 613 
 Patent and latent, 542 
 Conflict between parts of a description, 571- 
 
 610 
 
 Intention of parties will prevail, 572 
 In case of, monuments control, 573 
 Area helps to determine the boundary, 589 
 
 AMEND : 
 
 Right of legislature to amend charters, 871 
 
 ANCIENT DOCUMENTS : 
 
 (See also ?DEEDS ; DESCRIPTIONS ; MAPS ; 
 
 PLANS : PLATS'; SURVEYS.) 
 Defined, 622-624 
 Computing the age of, 623 
 From whose custody must they come, 623 
 Ancient maps and deeds, 622-624 
 Maps to show boundary lines, 623 
 
592 
 
 INDEX. 
 References are to sections* 
 
 APPROPRIATION : 
 
 (See also PEIOB APPROPRIATION ; IRRIGA- 
 TION; STREAM; WATER.) 
 Of ice 011 navigable stream, 164 
 Of land under false pretense by railroad, 735 
 Of streets for railway by legislature, 781 
 Of water ; 
 
 Consists of what, 75 
 
 Inception of rights, 107 
 
 Time or date of, how fixed, 75 
 
 Of all, means what, 75 
 
 Is not an appurtenance, 77 
 
 Of subterranean currents, 258 
 
 For beneficial use, 62, 75 
 
 By riparian owner determined by reason- 
 able use, 71, 82 
 
 A reasonable use, when, 60 
 
 Artificially, 267 
 
 By erection of dam, 75 
 
 For mining purposes, 75 
 
 For steam-boilers, 63 
 
 APPROPRIATORS OF WATER : 
 
 (See also PRIOR APPROPRIATION; WA- 
 TERS.) 
 
 Entitled to how much, 75, 110 
 Are tenants in common, 77 
 How affected by diversion, 105 
 Cannot maintain an action for the value of 
 
 water, 77 
 Cannot change method of conveying water, 
 
 75 
 
 Have no specific property in water, 77 
 Injured by unlawful acts of another, 220 
 Rights of : 
 
 Begin with appropriation, 107 . 
 
 Are usufructuary, 77 
 
 To construct ditches, 73, 77 
 
 To remove obstructions, 75, 77 
 
 To change point of diversion, 75 
 
 To recapture and use abandoned water, 
 76 
 
 Not lost by conveyance of water above 
 mill, 77 
 
 To ice-fields, 164 
 
 Abandonment of right of priority, 76 
 
 ARBITRATION : 
 
 (See also AWARD ; BOUNDARIES ; DESCRIP- 
 TIONS ; SURVEYS.) 
 Disputed boundaries determined by, 368, 
 
 461-490 
 Effect of submission of boundary disputes, 
 
 463 
 
 Submission to, may be revoked, 468 
 Agreement of boundary should be made a 
 
 submission to, 470 
 Ownership of land determined by, 462 
 
 ARBITRATORS : 
 
 Should be named, 466 
 
 Surveyors as, must act together, 480 
 
 Must receive evidence, 479 
 
 Must decide by their own convictions and 
 
 judgments, 476 
 
 Judge of questions ordinarily within power 
 
 of court, 478 
 May consult others, 477 
 Compensation of, 482 
 Disqualified if interested, 466 
 Should order a conveyance executed, 
 
 when, 462 
 Award of, does not affect title, 469 
 
 ARBITRATORS Continued. 
 Powers of: 
 
 Bestricted, 472 
 
 At an end when award is made, 483 
 
 To summon witnesses and admi niste 
 oaths, 478 
 
 And duties may not be delegated, 476 
 AREA: 
 
 (See also BOUNDARIES ; DESCRIPTION ; 
 
 MORE OR LESS ; SURVEYS.) 
 Deficiency in, of land, 411 
 Should include land under water, when, 411 
 Of street to be considered, 411 
 Bepresentations as to, 590 
 What is not a warranty as to, 588-597 
 To be considered in case of ambiguity, 
 
 589-597 
 
 None inclosed by description, 546 
 Against courses and distances, 588 
 Computed from distances and angles, 588 
 Are a function of distances, 587 
 
 ARID COUNTRIES 
 
 (See also APPROPRIATION ; IRRIGATION ; 
 
 STREAMS ; WATERS.) 
 Irrigation in, 71-77 
 
 ARTIFICIAL POND : 
 
 (See also CANALS : DAMS ; DITCHES ; 
 
 LAKES ; PONDS ; STREAMS.) 
 Described as a boundary, 423 
 Property in ice on, 166 
 
 ARTIFICIAL WANTS: 
 
 Of water defined, 60 
 
 AUTHORITY : 
 
 To grant use of streets, 786 
 
 To occupy streets is void, when, 786 
 
 To occupy public street with building 
 
 materials, 721 
 
 To locate railroad upon street, 756, 757 
 To relocate railroad, 743, 747, 749 
 To operate railroad in street cannot be 
 
 implied, 756 
 
 To select lands for railroad, 750 
 To connect railroad, 745 
 To extend railroad, 745 
 To build road by most direct route, 745 
 To construct railroad along river, 745 
 To erect water-works, 142 
 To contract for a supply of water not 
 
 authority to erect water- works, 142 
 To take certain waters and rights, 275 
 To erect awning is a license, 718 
 Of Congress and Parliament is paramount, 
 
 245 
 
 AWARD OF ARBITRATORS : 
 
 (See also ARBITRATION : BOUNDARIES ; 
 
 SURVEYORS.) 
 
 On disputed boundaries, 461-490 
 Is certain, when, 485 
 Irrevocable and binding, 467' 
 Proper form of, 484 
 Must decide all questions, 474 
 Must express an actual decision, 484 
 Need not be under seal, or in writing, or 
 
 attested by witnesses, 464 
 Reasons for setting aside, 465, 479 
 Avoided by surveyor exceeding powers, 474 
 Mistake of facts may render it void, 472 
 Will establish boundary dispute, 467 
 
INDEX, 
 References are to sections. 
 
 593 
 
 AWARD OF ARBITRATORS Cont'd. 
 Providing that a subsequent survey 
 
 ^should fix boundaries held valid, 485 
 Fixing boundary-line a defense to an action 
 
 of trespass, 462-490 
 Affecting title to land, 4G2, 469, 484 
 
 AWNINGS : 
 
 Erection of, in a street, 718 
 
 City may not grant right to erect, 718 
 
 AZIMUTHS : 
 
 (See also BEAEINGS ; NORTH, ETC.; POINTS 
 
 OF COMPASS; STJKVEYS.) 
 Mistakes of recording, 541-570 
 
 BANK: 
 
 (See also BEACH ; SHOKE ; STKEAM.) 
 Proper use of word, 374 
 Described as a boundary, 373 
 "At," "by," "on," "along," "with," or 
 
 " by the side of" the bank, 363, 406 
 Law determines ownership, 403 
 Care must be exercised in protecting, 131 
 Owners of stranded property mav O and 
 
 reclaim it, 244 
 General use of, not included in easement of 
 
 passage, 244 
 
 Of navigable waters and their use, 244 
 Public may anchor on banks of navigable 
 
 waters, 244 
 
 BANK, BEACH OR SHORE : 
 
 In a description of land, 401-414, 423 
 BARRIERS . 
 
 Between estates, 311 
 
 Built equally on both sides of boundary- 
 line, 311 
 
 Sometimes divided by fence-viewers, 311 
 
 To make an enclosure for adverse posses- 
 sion, 522 
 
 Liability for defective construction, 87 
 
 Riparian owner may protect his land from 
 overflow, 134 
 
 Riparian owner must exercise care in erect- 
 
 BATHING : 
 
 In navigable waters, 237 
 Restraint upon sea-bathing, 237 
 Establishment may not be conducted on 
 
 private property, 237 
 Trespassing for purpose of bathing, 237 
 BEACH : 
 
 (See also BANK; SHOKE; STKEAM.) 
 Defined as a boundary, 373 
 As a boundary, 371-376 
 Changes in, affect boundary, 372 
 Property in state, 375 
 Right to exclude public from, 683 
 BEARING : 
 
 (See also COURSES; MAGNETIC BEARING- 
 
 NORTH, ETC.; SURVEY.) 
 Mistakes in, in deeds, 541-570 
 Meaning of words used in describing, 603, 
 
 True or magnetic, which, 604 
 BED : 
 
 Of stream described, 374 
 Of stream owned by whom, 377-379, 401-420 
 Of stream may be changed, when 113 
 Title to bed of lake, 421, 422 
 
 BED Continued. 
 Of great lake belongs to state, 421 
 Owner of, owns alluvion, 378 
 
 BEGINNING : 
 
 See STARTING-POINT ; SURVEY. 
 
 BENEFICIAL USE : 
 
 (See also RIPARIAN OWNER ; USE; WATERS.) 
 Of water appropriated, 75 
 Of water of a stream, 75 
 May be made of reduced stream, 84 
 
 BLAZINGS : 
 
 To estimate date of, 580 
 BOTTOM : 
 
 Of stream owned by whom, 377-379 401-420 
 BOUNDARIES : 
 
 (See also COURSES; DESCRIPTIONS; DIS- 
 TANCES ; LAND ; MAPS ; MONUMENTS ; 
 SURVEYS.) 
 In general, 361-370 
 
 Defined and described, 363, 366, 369 372 
 Depend upon what, 367 
 Depend on language of deed, 446 
 Value of small words, 406-408 
 May depend on circumstances, 450 
 Existing, will be maintained, 390, 574 
 Defined by reference to map or plan 598 
 Described in deed, 367 
 How established, 367 
 How designated, 369 
 Defined by monuments, 364 
 Described by artificial monuments, 370 
 Center of monument should be 402 
 How fenced, 605 
 
 By adjoiners, 311-350, 503, 504, 607 
 Between riparian owners, 387 
 Private, compared with government, 365 
 As established by government, 365 
 Government controls private, when, 365, 410 
 Of a township ascertained, 378 
 Descriptions by, sufficient to establish, 512 
 
 526 
 
 Importance of different methods in describ- 
 ing, 575 
 
 Controlling elements in, 571-610 
 Established by acts of owners, 368 
 Submission of disputed, to arbitration, 461- 
 
 4:OO 
 
 When not binding on landowners, 467 
 Rule for adjustment of, 383 
 Causes of litigation over, 361 
 Projections overhanging, 308-314 
 Trees planted on, 312-320 
 Ownership of trees growing near, 313 
 Running through forest, 314-320 
 Determination of : 
 
 How determined, 368 
 
 And proof of, 611-640 
 
 By field-notes as evidence, 617 
 
 By traditional proof, 620 
 
 By parol proof, 542 
 
 By declarations of persons since de- 
 ceased, 620, 625 
 
 By testimony of old inhabitants, 619-621, 
 625-629 
 
 By hearsay evidence, 620 
 
 By third person, 464 
 
 By adverse possession, 511-540 
 
 Established by law, 368 
 
 By state laws, 401, 412 
 
594 
 
 INDEX. 
 References are to sections. 
 
 BOUND ARIE S (Ion tinned. 
 Determination of: 
 Vary in different states, 414 
 Is for jury, 611-613 
 Left to jury unbiassed, 612 
 Of starting-point, 630, 631 
 By direct or reverse calls, 632 
 When one line is omitted, 550 
 Is a mixed question of law arid fact, 368 
 Effect of field operations on, 404 
 Affected by doctrine of civil law, 413 
 When land was submerged, 380 
 Of reclaimed lands, 383 
 Shifting character of, 371-400 
 When stream changes, 377-420 
 Affected by accretion or receding waters, 
 
 383, 423 
 
 Affected by sudden changes, 377, 390 
 Changed by storm, 372 
 Effect of landslides on, 390 
 Diversion by artificial means does not 
 
 change, 390 
 
 Unaffected by change in street, 445 
 On waters, 371-400 
 
 Depends on navigability of waters, 421 
 On beaches and shores, 371-376 
 On lakes and ponds, 421-430 
 Of land on pond, 421, 423 
 On artificial lakes and ponds, 422 
 On artificially enlarged lake, 422 
 Coincident with the shore of a lake, 407 
 Of islands, 431, 432 
 On streets and roads, 441-456 
 On a stream : 
 
 Stream described as, 377-379, 401-420 
 Will follow changes, 377-420 
 Middle line of streams, 409 
 Ending at stream, 387 
 Connecting lines across or to middle of 
 
 streams, 383, 387-390 
 Non-navigable, 407-420, 449 
 Of navigable, 401 
 
 Where tide ebbs and flows, 374, 376 
 Upon non-tidal navigable waters varies,414 
 Meaning of certain phrases used with 
 
 ways and streams, 406-410, 451 
 "At," "along," "by," "on," and "with" 
 
 a stream, 406, 447 
 Meaning of "to bank," "to beach," "to 
 
 shore " of body of water, 405-410 
 Limited by the bank, 235, 371-376, 401-414 
 Mississippi Kiver as a, 409 
 On a new channel, 377 
 By agreement and acquiescence : 
 Established by, 461-510 
 Time required to establish, 502 
 Change by agreement is valid, 495 
 Early settlements are, when, 365, 413 
 Settled by parol agreements, 496, 501 
 Location of, conclusive, when, 461-510 
 Settlement of, may be refused, 499 
 Surveyed, that are settled, 494 
 Determined by surveyor not to be de- 
 nied, when, 467 
 
 Survey of, not followed by possession, 467 
 Few surveyors informed of laws of, 404 
 Agreed upon may control deeds, 519 
 Designated by grantor at transfer, 493 
 By grantor will bind transferee and 
 
 grantee, 499 
 Parties must have had knowledge of 
 
 facts of its situation and marking, 499 
 
 BOUNDARIES Continued. 
 
 By agreement and acquiescence : 
 
 A submission to arbitration, when, 470 
 
 Award will establish, 467 
 
 Mistake in the location not a binding 
 agreement, 493 
 
 Natural, to inclose for adverse posses- 
 sion, 522 
 
 Mistake as to, does not destroy adverse 
 holding, 517, 518 
 
 BRIDGE : 
 
 A part of highway, 720 
 
 Is land, when, 5 
 
 Over stream connecting streets, 784 
 
 May be built over stream, when, 112 
 
 An illegal structure, when, 121 
 
 Must not interfere with flow of stream, 117 
 
 Waters of stream set back, by, 112 
 
 Contracting stream and causing overflow, 
 
 Constructed over navigable stream without 
 
 authority, 240, 242 
 
 Across navigable stream, injured by float- 
 ing logs, 240, 242 
 Which interferes with navigation not an 
 
 obstruction, when, 116 
 Causing permanent injury, 721 
 Obstruction of surface-water by, 115 
 Not used by the public may be a nuisance, 
 702 
 
 BROOK : 
 
 See STREAM ; WATERS. 
 
 BUILDING : 
 
 (See also BOUNDARIES; EXCAVATIONS; 
 
 LATERAL SUPPORT ; PROJECTIONS.) 
 Lateral support for, 321-335 
 On adjoining lot must be protected, when, 
 
 O.24: 
 
 From what point to measure, 605-607 
 Is personal property of builder, when, 6 
 Blown down is not personal property, 8 
 Erected without landowner's consent, 6 
 Erected by landowner's license, 8 
 License of purchaser to enter and take, 667 
 Projecting upon adjoining lands, 336 
 Overhanging neighbor's land, 308 
 Injuries from, when close to line of street, 
 
 182 
 
 Wall injured by roof-water, 180, 181 
 Snow from roof of into street, 182 
 Must bo provided with eaves-troughs, 181 
 Restrictions refer to street as it existed at 
 
 the time restrictions were imposed, 445 
 Basement of, lighted from above by floor- 
 light, 307 
 
 BULKHEAD : 
 
 To confine stream, 382 
 
 BURDEN : 
 
 Additional, upon streets, 721, 756, 781, 814, 
 
 841 
 
 Eailroad on a street, 758 
 Telegraph and telephone line on land, 818 
 Street railway is not additional, 781 
 Of buildings on land which require extra 
 
 lateral support, 324 
 
 BURDEN OF PROOF : 
 
 As to monuments in a survey, 579. 611-633 
 When monument has been displaced, 577 
 
INDEX. 
 
 595 
 
 "References are to sections* 
 
 BUYER : 
 
 (See also PURCHASER; VENDEE.) 
 His license to enter and take, 667 
 
 BY THE BANK, ETC.: 
 
 In a description of land, 405-410 
 
 CABLES : 
 
 Must not interfere with navigation, 242 
 
 CALLS IN A DEED : 
 
 (See also BOUNDARIES ; CONFLICT OP 
 
 CALLS; DEED; DESCRIPTION.) 
 In a description, 545 
 In a survey, rule as to, 573-576 
 Relative importance of, 575 
 Incidental calls noted, 633 
 Direct and reverse, 632 
 Omitted calls supplied, 550-552 
 Some disregarded, when, 633 
 For section corners, 631 
 For adjoiners in a deed, 583-585 
 
 CANAL COMPANY : 
 
 May be a riparian owner, 51 
 
 Acquires only right of way in land, 255 
 
 Has only a right of way for canal purposes, 
 
 444 
 
 Liable for damages to mill, 272 
 May sheet-pile embankment to keep out 
 
 water, 134 
 
 CANALS : 
 
 Ownership of, 444 
 
 To drain swamps, 184 
 
 Causing injury to mill by leakage, 272 
 
 Discharge of sewers into, 205 
 
 CARE: 
 
 Required in making excavations, 331 
 Taken in making new channel, 105 
 Must be exercised in protecting bank or 
 structures, 131 
 
 CENTER LINE : 
 
 (See also MIDDLE LINE ; STREAM ; STREET.) 
 Of stream in a description, 409, 422 
 Of street or way as boundary, 441-456 
 
 CERTAINTY : 
 
 Of location of monuments, 544, 545 
 
 CERTIFICATES : 
 
 Of copies of maps, etc., 616-618 
 
 CHAIN : 
 
 See BOUNDARIES; MEASUREMENTS; SUR- 
 VEY. 
 
 CHANGE : 
 
 In location of a boundary, 371-440, 543 
 
 Effect of, on boundaries, 371-400 
 
 In nature disturbs boundaries, 366 
 
 Of streams and shores, 381-440 
 
 In street does not affect boundaries, 445 
 
 Parol evidence to change deed, 542-562 
 
 CHANNEL : 
 
 Is a watercourse, 172 
 
 Made by break in dam used by public, 233 
 
 Excavated and deepened, 106 
 
 CHARTERS : 
 
 (See also CORPORATION ; FRANCHISE.) 
 Of corporations and franchises, 862, 863 
 Forfeiture of, 884 
 Legislative right to amend or repeal, 870- 
 
 872, 879-883 
 
 Renewal of, by legislature, 879-881 
 Granting lawful monopolies, 868 
 Limitations a3 to property and contracts, 
 
 871-873 ' 
 
 Of corporations lost, 879-885 
 Railroad, rights acquired under, 765 
 Of railroad companies are public fran- 
 chises, 731 
 
 Authorize one location of railroad, 747 
 Do not authorize occupation of street by 
 railroad, 756 
 
 CHATTELS : 
 
 Real and personal, denned and described, 6 
 
 Are sometimes fixtures, 7 
 
 Not changed to fixtures by intention of 
 
 alteration, 8 
 
 A house is, when sold and removed, 6 
 A house is not, when blown down, 8 
 
 CHECKS : 
 
 In a survey, 587 
 
 CITY: 
 
 Adverse use against, 534 
 
 Adverse and prescriptive rights against, 
 
 534, 682-685 
 
 Its boundary a railroad terminal, 753 
 Rights of, in Waters : 
 
 To appropriate streams, 211 
 
 To acquire right to use stream by pre- 
 scription, 212 
 
 As riparian owner to take water, 143 
 
 To dispose of surplus water, when, 143 
 
 To acquire all rights necessary to supply 
 water, 142, 143 
 
 To contract for water to extinguish fires, 
 148 
 
 To refuse water if not of quality agreed 
 upon, 148 
 
 To require stipulated quantity of water 
 though mains are small, 148 
 
 To an action to rescind contract with 
 water company, 148 
 
 To fix water rates, when, 151 
 
 To purchase quasi-public works, 848 
 
 To construct water-works, when, 142 
 
 To purchase franchise of water company,, 
 when, 142 
 
 To grant franchise to water company,, 
 when, 142 
 
 To take prescriptive right of landowners, 
 to pollute water, when, 212 
 
 To control surface-waters, 186, 187 
 
 To drain water from property, 184 
 
 To locate drains, 188 
 
 To neglect culvert that discharges sur- 
 face-waters, 119 
 
 To protect itself by building levees, 136 
 
 To construct conduit lower than sur- 
 roundings, 275 
 
 To control sewage disposal, 220 
 
 To abandon a sewer, 186 
 
 To discharge sewage into river, 205, 219 
 
 To prevent pollution of water-supply, 220 
 
 To what accretions, 379 
 
59 6 
 
 INDEX. 
 
 References are to sections. 
 
 CITY Con tinned. 
 Rights of, in Waters : 
 
 Land made by filling, 381 
 Rights of, in streets : 
 
 To control streets, 756, 786 
 
 To lateral support for its streets and 
 structures, 333, 321-335 
 
 To make or improve streets as an agent 
 of the state, 721 
 
 To take land for streets, 703 
 
 To authorize removal of soil from streets, 
 442 
 
 To excavate road below grade, 442 
 
 To change grade of streets without mak- 
 ing compensation, 761 
 
 To fill up and grade streets, 187 
 
 To pave streets and prevent absorption of 
 rain, 186 
 
 To remove trees if title to street is in 
 city, 319 
 
 To grant telephone company license to 
 clip branches of trees, 319 
 
 To erect awning in street, 718 
 
 To grant license to occupy streets, 664, 
 844-848 
 
 To grant right of way, 786 
 
 To grant use of streets if it has title, 442 
 
 To grant exclusive privileges in streets,792 
 
 To grant street for private purposes, 442, 
 718, 721 
 
 To permit occupation of streets, 787-790 
 
 To make its consent to use streets condi- 
 tional, 788 
 
 To exact requirements of street railway, 
 
 To authorize operation of steam railroad 
 
 in street, 756 
 To forbid change of motive power by 
 
 street railway, 799 
 To interfere with construction of railway, 
 
 791 
 To regulate telephone construction, 816, 
 
 817 
 To assent to location of electric-light pole, 
 
 To acquire rights in street by dedication, 
 
 707 
 
 Is required : 
 
 To exercise care in selecting a plan, 188 
 To guard against extraordinary rainfall, 
 
 90 
 
 To keep streets safe, 145 
 To exercise proper care in building an 
 
 improvement, 120 
 To exercise discretion in constructing 
 
 sewer, 186 
 To keep a channel used for a sewer open, 
 
 212 
 
 Liability of: 
 For acts of officials, 441 
 For trespass of its officers, 352 
 For wrongful acts of railroad company, 
 
 757 
 For injuries from street improvements, 
 
 186 
 For performing public work unskilfully, 
 
 190 
 For settlement of structure by reason of 
 
 a sewer, 334 
 For excavating river-bottom and loss of 
 
 lateral support, 334 
 
 CITY Continued. 
 Liability of : 
 
 For defective water-pipes, 145 
 
 For damages by maintaining sewer, 255 
 
 For defective sewers, 215 
 
 For renuering waters unfit for farm use, 
 
 211 
 
 For fouling of stream, 215 
 For damages to a well by erection of 
 
 gas-reservoir, 221 
 For damages to well, when, 255 
 For draining percolations, when, 255 
 For constructing water-gallery which 
 
 drains river, 272 
 For destruction of a spring from sewer, 
 
 For defective drainage plans, 188 
 
 For injury from defective drain, 189 
 
 For neglecting to drain street, 186 
 
 For injuries from hydrant, 145 
 
 For injury from water escaping, 145 
 
 For submersion of laud, 54 
 
 For diverting waters, 54 
 
 When riparian owner, for excess of water 
 
 taken, 143 
 For obstructing street, 721 
 
 CLOSING LINE : 
 
 In a survey, 547, 633 
 
 COLOR OF TITLE: 
 
 (See also ADVEKSE POSSESSION. ) 
 
 What may constitute, 518, 526, 533 
 
 Deed must define land, 526 
 
 A void deed will not constitute it, 526 
 
 A bad title will answer for, 526 
 
 Adverse possession under, 524 
 
 Occupant is confined to boundary-line de- 
 scribed, 526 
 
 Good faith necessary to acquire land 
 under, 533 
 
 In tacking adverse possessions, 686, 687 
 
 COMMERCE : 
 
 " More or less " in, 596 
 
 COMMON : 
 
 Defined, 29 
 
 COMMON LAW: 
 
 Rights under, to improve land, 177 
 Compared with civil law as applied to 
 
 surface-waters, 176 
 Irrigation under, 71 
 
 COMPANIES : 
 
 (See also CHARTER ; CORPORATION ; FRAN- 
 CHISE.) 
 
 Telegraph and telephone, 811-840 
 Not trespassers when authorized by state 
 
 to build public improvements, 353 
 Erecting bridge may divert watercourse, 
 
 when, 113 
 May change watercourse to carry off 
 
 water, 113 
 
 COMPRESSED AIR : 
 
 Conduits for, 281-290, 841-860, 877 
 
 CONDEMNATION : 
 
 (See also LAND ; EIGHT OF WAY.) 
 Of right of way for telegraph lines, 825 
 Of land for railroad right of way, 731 
 
INDEX. 
 References are to sections. 
 
 597 
 
 CONDITIONS : 
 
 Eights of way on, 735 
 
 That eity may impose on railroad, 788 
 
 Imposed upon street-railway companies. 
 
 787, 788 
 Imposed upon telegraph companies, 823 
 
 CONDUCTION : 
 
 Disturbance and damage from electricity, 
 830 
 
 CONDUITS : 
 
 (See also GAS-PIPES; PIPE-LINES; SUB- 
 WAYS ; WATER-PIPES.) 
 Eights of way in, 841-860 
 
 CONFLICT : 
 
 Of calls in a description, 571-610 
 
 Parts of a description in, 545 
 
 Between parts ot deed, 550 
 
 Between monuments located and those 
 described, 599 
 
 Between general and particular descrip- 
 tion, 548, 549 
 
 Between field-notes and map, 600 
 
 CONGRESS : 
 
 Franchises b'y, 873 
 
 May remove obstructions to navigation, 242 
 
 CONNECTION : 
 
 Of monuments on shore, with boundaries 
 described, 383, 387-390 
 
 CONSENT : 
 
 Implied, revoked, or modified, 789 
 
 Of abutting owners to operation of railway 
 
 in street, 789, 790 
 
 Of abutting owners may be revoked, 788 
 Obtained before road is built, 790 
 Of local authorities to occupy street, 846 
 Of city to occupation of street by railway, 
 
 787-790 
 Of city *to use streets may be conditional, 
 
 788 
 
 CONSTRUCTION : 
 
 Not regarded by lawyers and business 
 
 men, 1 
 
 Of public works a ministerial act, 190 
 Of street railways, 793 
 Of tunnel, draining land, 255 
 Should not be begun until right of way is 
 
 secured, 1 
 
 Incorporeal rights met in, 641 
 Of a description of land, 405-410 
 Of deed is to determine intention, 405, 542 
 
 CONSTRUCTION WORKS : 
 
 Importance of license, 661 
 Importance of prescription in, 671 
 
 CONTAMINATION : 
 
 See FOULING ; POLLUTION. 
 
 CONTIGUOUS : 
 
 Means adjoining, 585 
 
 CONTINUOUS : 
 
 Adverse possession must be, 529 
 In prescription, 675-682, 686, 687 
 
 CONTRACT : 
 
 License by, for a consideration, 663 
 Obligation of, in franchises, 868, 871 
 When is a corporate franchise, a, 863-887 
 Limitations of corporations as to, 873 
 Legislature cannot impair obligation of, 765 
 For monopoly to telegraph company, 819 
 As to party walls, 343 
 Providing that abutting owners keep a road 
 
 private, 711 
 
 To supply city with water, 54, 148 
 For water to extinguish fires, 148 
 Water company's, construed in favor of 
 
 public, 147 
 For artesian-well water not satisfied by 
 
 other water, 148 
 
 COPIES : 
 
 Of maps and records as evidence, 615-618 
 
 CONVEYANCE : 
 
 (See also DEED; DESCKIPTION; GRANTOR 
 
 and GRANTEE.) 
 Statutory, 701 
 
 Operative words in a deed, 46 
 To a corporation and to a trustee, 14 
 To a foreign corporation is voidable, 36 
 Construction of, not affected by words 
 
 "upon, by, or along " the highway, 449 
 Of interest in land requires a deed, 43 
 Of lauds conveys grantor's title, 406 
 Of lands under tide- waters, 376 
 Of land by metes and bounds, 421 
 Of land not located gives an undivided in- 
 terest, 559 
 Not void if parties erected monuments at 
 
 time of transfer, 499 
 Of land bounded by a road, 445, 446 
 Bounded on highway or stream carries fee 
 
 to center thereof, 447 
 Boundary restricted to bank, 423 
 By reference to another deed or map, 555 
 Of sawmill and appurtenances, 77 
 Of mines and minerals, 283 
 Of gas and oil, 283 
 Made to husband and wife, and third 
 
 party, 25 
 
 Of land for firm purposes, 35 
 Dower, c\irtesy, and homestead interests 
 
 must be considered, 17 
 Not necessary to establish easement of 
 
 irrigating ditch, 77 
 
 COPARCENARY : 
 
 See ESTATE-IN-COPARCENARY. 
 
 CORNERS : 
 
 (See also AD JOINERS ; BOUNDARIES ; 
 
 MONUMENTS.) 
 Is adjoining, 585 
 Of tracts, how established, 631 
 True corner \& where government surveyor 
 
 established it, 579 
 Half-section lines need not be equidistant, 
 
 580 
 
 CORPORATION : 
 
 (See also FRANCHISE.) 
 Bights of, limited, 862 
 Franchises of, 861-887 
 Public character, 862 
 Exclusive franchise of, how violated, 147 
 Capital invested in franchises, 871 
 
59 8 
 
 INDEX. 
 References are to sections. 
 
 CORPORATION Continued. 
 Taxation of its franchises, 865, 886 
 Sale or mortgage of its franchise, 874-878 
 Extinguishment of franchise, 879-885 
 Making lawful use of public franchise, 830 
 Dissolution of, 879-885 
 Effect of dissolution, 885 
 Win ding-up of, 879-885 
 Insolvent wound up, 884 
 Laws as to insolvent, 873 
 Held subject to what laws, 870 
 Statutes affecting remedies of, 870 
 Quasi-public, what are, 149, 861-863 
 Quasi, and valuable franchises, 871 
 Remedies against, to enforce public duties, 
 
 878 
 
 Subject to police power, 862, 871, 887 
 Fixing of rates, tolls, etc., 862 
 Owning pipe-lines and other subways, 841- 
 
 860 
 
 Its interest in realty, 36 
 To acquire and dispose of real estate, 36 
 Its seal should be attached by officer hav- 
 ing charge of it, 45 
 To take property by devise, 36 
 Religious, to hold real estate, 36 
 To interfere with natural action of water, 
 
 178 
 
 Pumping water from their land to sell, 254 
 , May make valid dedication, 704 
 Litigation between, over electrical disturb- 
 ances, 295 
 May be a tenant in common with a person, 
 
 36' 
 
 May exercise its general powers in any state, 
 when, 36 
 
 CORPOREAL PROPERTY : 
 
 Includes what, 29 
 
 CORRECTION : 
 
 Errors not subject to, 574 
 
 COUNTY : 
 
 Omitted in describing land, 546 
 Liable for trespass of its officers, 352 
 
 COURSES : 
 
 Calls for, against distance, 586-589 
 Specific, control generally, 549 
 Errors in, due to what, 571 
 Controlled by monuments, 576-588 
 Against adjoiners, 583-585 
 Against area- or acreage, 588-597 
 " More or less " when land is described by, 
 593 
 
 COURTS : 
 
 State and Federal, 137 
 
 May enjoin revocation of license, 663 
 
 Should leave boundary to jury, when, 611, 
 
 612 
 Order to allow surveyor to make survey, 
 
 352, 353 
 
 COVERTURE : 
 
 See MARRIED WOMAN. 
 
 CREEK : 
 
 See SPUING; STKEAM ; WATERS. 
 
 CROWN : 
 
 In England owns shores and beaches, 376 
 Retains control of navigable waters, 375-390 
 
 CULVERTS : 
 
 In railroad embankments, 119, 120 
 Provided by railroad company for drainage,. 
 
 191 
 
 Not erected in embankment, 192 
 Must carry off extraordinary flood waters, 
 
 117 
 Building of, shows acceptance of highway, 
 
 717 
 
 CURRENTS : 
 
 Cause streams to change, 377 
 Landowner may not throw, upon opposite 
 shore, 382 
 
 CUSTODY : 
 
 Of ancient document, 623 
 
 CURTESY : 
 
 Defined, 17 
 
 Requisites which must exist, 17 
 
 CUSTOM : 
 
 Of surveyors in making measurements, 605- 
 607 
 
 DAM: 
 
 (See also DETENTION OF WATEKS ; MILLS ; 
 OBSTKUCTION or STREAMS ; OWNER OF 
 DAM; STREAMS; WATERS.) 
 Detention of waters by, 83-100 
 Backing up of water, 85 
 Rights acquired by prescription limited to 
 
 user, 681 
 
 Erection of, may be authorized by legisla- 
 ture, 143 
 
 Built under a mere license, 662 
 Maintenance and repair, 88 
 Liability for defective construction, 87 
 Must resist extraordinary floods, 87 
 If it breaks, the owner may have a reason- 
 able time in which to repair it, 243 
 Liabilities for injuries to, 89 
 Obstructing new channel by, 133 
 To protect land should not obstruct stream. 
 
 132 
 Choked with ice, proprietor liable, 88 
 
 DAMAGES : 
 
 (See also MEASURE or DAMAGES.) 
 Question of, usually left to jury, 223 
 Witness's opinion as to amount of, 223 
 For disturbing lateral support, confined 
 
 to lot, 330 
 
 From conduction of electricity, 830 
 Caused by electricity, when, 292 
 From percolating gas, 849 
 Caused by failure of a brook, 275 
 Caused by city lowering underground 
 
 waters, 255 
 Caused by unlawful discharge of waters, 
 
 178 
 
 From overflow caused by obstructions, 119 
 To land from water of reservoir, 272 
 May be had for pollution of waters, 201, 
 
 209, 211, 223 
 Need not be suffered to prevent fouling of 
 
 stream, 219 
 From city rendering waters unfit for use 
 
 on farm, 211 
 
 Caused by maintenance of sewer, 255 
 Recovery by ferryman for discharge of 
 
 sewer, 208 
 
INDEX. 
 References are to sections. 
 
 599 
 
 DAMAGE S Con tinned. 
 Not recovered when surface-water floods 
 
 house-lots, 186 
 When land, overflowed and made muddy, 
 
 injures stock, 195 
 
 From illegal structure obstructing navi- 
 gation, 121 
 
 Recovered for injuries to water rights, 204 
 For telegraph lines over land, 817 
 Measure of, due to subways, 850 
 For steam railroad in street, 756 
 For injuries from elevated roads, 764 
 For overhanging structure, 336 
 For projecting eaves, 181 
 Awarded owner for injury to k his land by 
 
 projections, 308 
 To recover for trees cut, 320 
 Caused by overhanging branches, 316 
 For injury to abutting estates, 761 
 Special, to property may be recovered by 
 
 owner, 721 
 
 Against licensee for maintaining a dam, 662 
 Recovered by one maliciously injured, 193 
 Landlord cannot recover for tenant's in- 
 juries, 190 
 
 Assessed, must be reasonable, 195 
 Which may compensate riparian owner for 
 
 injuries cannot be foreseen, 219 
 Not suffered from one cause, 267 
 
 DECEASED PERSONS : 
 
 Declarations of, as to boundaries, 620, 625 
 
 DECISION : 
 
 (See also AWARD.) 
 Of arbitrator is conclusive, 464 
 
 DECLARATIONS : 
 
 Person making, must have knowledge, 620, 
 
 626 
 
 Of persons since deceased, 620, 625 
 Of disinterested persons, 620, 629 
 
 DEDICATION: 
 
 (See also BOUNDAEIES; PARKS; PUBLIC 
 
 STREETS; WAYS.) 
 Of rights in land, 701-710 
 Engineer should be familiar with principles 
 
 of, 703 
 
 Defined, 701-703 
 Origin and character, 701 
 Limits and qualifications of, 708 
 Effect of, 705 
 By common law, 704 
 Purposes of, 702 
 Rules of law applying to, 702 
 Application of the doctrine of, 702 
 Must be accepted, 701, 706 
 May be complete without acceptance, when, 
 
 706 
 
 Instances of, 709 
 Of a highway is complete, when, 441, 702, 
 
 705 
 Of land for highway subject to what right, 
 
 708 
 Of land along a stream for a highway, 53, 
 
 705 
 
 Of government lands, 703 
 Of land for a particular use, 705 
 Of land for school purposes, 707 
 Railroad right of way acquired by, 685, 
 
 701-710,738 
 Of piece of land for private alley, 705 
 
 DEDICATION Continued. 
 Property used for other purposes than 
 
 intended, 708 
 Intention is a vital element of, 454, 701, 703, 
 
 709 
 
 To determine whether there has been, 703 
 May be inferred from long use by public,, 
 
 70o 
 
 Not established by permissive user, 709 
 Presumption of, cannot exist, when, 703 
 May be made and proved by parol, 703 
 In making, no particular form is neces- 
 sary, 703 
 Parties to, 704 
 
 Power to, given to an agent, 704 
 Of trust lands may be made by trustee, 704 
 Cannot be made during tenancy without 
 
 consent of tenant, 704 
 Made in strict compliance with the statute,. 
 
 Will preclude appropriator from reassert- 
 ing his right over land, 705 
 
 Title to land does not pass from dedicator 
 703 
 
 Not revoked, when, 705 
 
 Revoked by death of dedicator, 705 
 
 May not be revoked by former owners 
 when, 705 
 
 Rights to accretion lost by, 379 
 
 DEED: 
 
 (See also DESCRIPTION.) . 
 Necessary elements of, 41 
 Its execution, 45 
 May be executed by an agent having power 
 
 of attorney, 45 
 
 Takes effect upon delivery to grantee, 45 
 Must be written on paper or parchment, 45 
 To a corporation must contain the word 
 
 "successors," 42 
 Seal necessary to its validity, 45 
 What is necessary to have recorded, 45 
 States have registration laws for recording 
 
 of, 45 
 
 Operative words of conveyance, 46 
 Void for uncertainty, when, 544, 546, 547, 
 
 558 
 Made invalid by omission of certain words. 
 
 42 
 
 Avoided for duress of grantor, 48 
 Must be accepted by grantee, 45 
 Alien may be the grantee, 42 
 Description in, should contain what, 362 
 Construction of the description, 405-410, 
 
 541 
 
 Insufficient, description in, 546 
 Surplusage in description, 547 
 County or township omitted from descrip- 
 tion, 546 
 Containing no description of land is not 
 
 color of title, 526 
 Description saved by reference to map 
 
 454, 555 
 
 Maps and plans a part of, 613 
 Construed with reference to date, 545 
 Computing age of an ancient, 623 
 Incorporeal interests conveyed by, 43 
 Interest conveyed must be sufficiently de- 
 scribed, 43 
 
 Thing to be conveyed, 43 
 Grants an easement of light and air, when. 
 307. 714 
 
6oo 
 
 INDEX. 
 
 References are to sections. 
 
 DEED Continued. 
 Conveying right of way for ditch, 77 
 Conveying railroad right of way, 732 
 To change location of right of way, 716 
 Granting right to draw water from dam, 88 
 Land formerly fronting on river conveyed 
 
 by passes accretion, 378 
 Gives an undivided interest when land is 
 
 not located, 559 
 
 Of land on lakes and ponds, 421-430 
 Passes title to land under water, when, 423 
 Eeservations in deeds of streets, 441 
 Reference to a street is not a dedication, 709 
 Parol proof of, 542 
 Of a married woman, 42 
 May be ratified by infant after attaining 
 
 legal age, 42 
 
 Of an habitual drunkard, 42 
 Of a person of unsound mind, 42 
 Parts of, inconsistent, 550 
 Conflict between parts of, 571-610 
 Intention of parties will prevail, 557 
 Construction of, is a question of intention, 
 
 405 
 
 Of conveyance should be ordered by arbi- 
 trators, 462, 484 
 
 DEFICIENCY : 
 
 Of acreage in a deed, 591 
 How made up, 597 
 To be considered, when, 588-597 
 Allowable in a deed, 592 
 
 DEFLECTION : 
 
 Of stream against bank, 137 
 
 DELEGATION : 
 
 Of acts, custom may authorize, 477 
 
 DERELICTION : 
 
 See RELICTION. 
 
 DESCRIPTION : 
 
 (See also BOUNDAKY ; DEED ; LAND ; SUK- 
 VEY; and object described.) 
 
 Conveys only what is described, 546 
 
 Should contain what, 19, 362, 366 
 
 Found in deed, 362 
 
 Best methods^ 543 
 
 Importance of phraseology, 363, 406-408 
 
 Interpretation of, in deeds and convey- 
 ances, 541 
 
 Interpreted in light of circumstances at its 
 date, 578 
 
 Duty of surveyor to interpret, 404 
 
 Construction of, 541-570 
 
 Sufficiency of, 543-562 
 
 Sufficient if land can be identified, 512, 550 
 
 The intention prevails, 557 
 
 When invalid as a conveyance, 367 
 
 Must be sufficient to effect a conveyance, 43 
 
 If accurate will limit conveyance, 548 
 
 Sufficient as a conveyance should answer 
 in an award, 485, 543-562 
 
 Imperfect, 550 
 
 Void for uncertainty, 544 
 
 Insufficient, imperfect, and ambiguous, 
 543-547 
 
 When of little use, 367 
 
 Failed to include any land, 546, 559 
 
 Location not designated by, 559 
 
 Instances of insufficient, 546 
 
 DESCRIPTION Continued. 
 Senseless and unmeaning, 547 
 Some ridiculous ones given, 543 
 County or town omitted, 546, 551 
 Applies to two estates, 553 
 Grantee or devisee uncertain, 556 
 Applies equally well to two grantees, 556 
 Surplusage in, 547 
 False part rejected; 545 
 Incidental calls ignored, 633 
 All calls retained if possible, 545 
 Parts omitted may be supplied, when, 551 
 Effect of omission in, 550 
 A tract, excepting ten acres not desig- 
 nated, 559 
 Meaning and intending to convey lands 
 
 conveyed to me by , 555 
 
 Of land as what belongs to grantor, 552-555 
 
 " Land willed to me," 555 
 
 " Of all my right, title," etc., 555 
 
 Of land by familiar name, 554 
 
 Land described as part of a whole, 554a 
 
 Land as "south one-fourth" or as "north 
 
 ten acres," 554a 
 Signs, symbols, and abbreviations in, 560, 
 
 561 
 
 True or magnetic bearings, 604 
 Meaning of northerly, etc., in, 603, 604 
 Poor spelling and grammar, 562 
 Omitted from deed, 546 
 Maps or plans referred to in, 454 
 Insufficient, cured by reference to map or 
 
 deed, 555,'613-618 
 
 Complete, and reference to map, 614 
 By reference to old deed, 363, 548 
 Mistake in lot numbers, 552 
 By reference to field-notes, 410 
 Construed with reference to the date of, 
 
 545 
 
 Effect of correcting defective, 363 
 Relative importance of calls in, 575 
 Conflict of calls in, 571-610 
 Interference of two, 532 
 What is most certain will control, 545, 556, 
 
 571-576 
 That part holds which is least affected by 
 
 mistakes, 571-583 
 Conflicting' parts reconciled, 545 
 Correct prevails over incorrect, 545 
 Particular governs general, 548, 549 
 Monuments against courses and distances, 
 
 571-589 
 
 Monuments control all other calls, 571-589 
 Adjoiners vs. courses and distances, 583 
 By adjoiners and excess, 597 
 Area against courses and distances, 588 
 More or less in a, 588-597 
 Meaning of " more or less," 591-597 
 Certain number of acres of a tract, 559 
 Closing of a survey in, 633 
 Of land by a railroad, 544 
 By water-mark, 376 
 
 Touching water of navigable streams, 401 
 "At," "along," "by," "on," and "with" 
 
 a, stream, 406 
 As "to," "with," "along," "up," or 
 
 " down " a stream, 406 
 Carrying grant to water of stream, includes 
 
 half of bed, when, 406 
 " By the bank," beach, or shore, 405-410 
 "To the "or "along the top of a bank," 
 
 etc., 405-410 
 
INDEX. 
 
 60 1 
 
 References are to sections. 
 
 DESCRIPTION Continued. 
 Starting "at intersection of stream with 
 
 shore-line," etc., 407 
 "Shore," "bank," and "water's edge "in, 
 
 Failure to mention lake as boundary, 421 
 
 "To a street" or "to the side" and 
 "along the street," 449, 451 
 
 " On," " along," " by," " street," with " up," 
 " down," " lying on" or " along a street," 
 in a, 448 
 
 Excludes street, when, 451 
 
 Call for corner of two intersecting streets, 
 449 
 
 Mistake in, does not prevent adverse pos- 
 session, 517, 518 
 
 Extending boundary-line of land, 406 
 
 Most favorable to grantee, adopted when, 
 571 
 
 Oldest grant prevails, 602 
 
 Essential part of grant, 367 
 
 Elements of error in, 571 
 
 Mistakes in, corrected, how, 633 
 
 Parol proof of, 550 
 
 Evidence to explain, 550 
 
 Hearsay evidence to apply, 620 
 
 Judicial notice in, 551 
 
 Of premises in a lease, 19 
 
 DETENTION OF WATER: 
 
 (See also DAMS ; WATEES.) 
 Of streams, 81-100 
 
 DISCHARGE : 
 
 Of waters, opening for, 117 
 Of water in natural condition, 185 
 Of water muddy by engineering opera- 
 tions, 207 
 
 Of waters upon private lands, 190 
 Of roof-waters into street, 182 
 Of city sewage into a river, 207 
 From sewage-purification works into 
 
 waters, 210 
 
 Of factory refuse into stream, 208 
 Of tar, etc., from gas-works, 221 
 
 DIRECTION : 
 
 More important than distance, when, 586- 
 589 
 
 DISABILITIES : 
 
 That prevent adverse user and possession, 
 
 Coverture, idiocy, insanity, war, etc., 688 
 Law when there are several, 688 
 
 DISSOLUTION : 
 
 Of corporation, 879-885 
 
 DISTANCES : 
 
 (See also MEASUKEMENTS ; SURVEY.) 
 Governed by courses, 586-589 
 Determine the area, 587 
 To what part of a road or way, 606 
 To a building, 605 
 
 DISTURBANCE : 
 
 . (See AIR; ELECTRICITY; LIGHT; NOISE; 
 WATERS.) 
 
 DITCH : 
 
 (See also IRRIGATION; POND; STREAM; 
 
 WATERS.) 
 
 May be a watercourse, 172 a 
 Diverting water by, 102, 172a 
 
 DITCH Continued. 
 Constructed across public highway, 717 
 Purchaser must repair, 88 
 To drain lake in times of high water, 103 
 Capacity of, 75 
 Dug under a license, 661-670 
 Owner liable for damage caused by seep- 
 age, 274 
 
 DIVERSION OP WATERS : 
 
 (See also DAMS; DETENTION OF WATERS; 
 
 MILLS; PONDS; STREAMS; WATERS.) 
 Mode of, 109 
 Point of, how fixed, 75 
 Riparian rights not affected by, 108 
 Affecting proprietors favorably, 105 
 Will be allowed, when, 143 
 To supply riparian owner's wants, 110 
 Must not lessen supply to others, 102, 105, 
 
 Cannot be enjoined, when, 108 
 
 By riparian owner to injury of others, 132 
 
 Restrained when wrongful, 104 
 
 Wrongful, by company, 108 
 
 Unauthorized, a nuisance, 101 
 
 Not excused because sufficient water re- 
 mains, 104 
 
 Need not cause actual injury, 104 
 
 Riparian owner not responsible for diver- 
 sion by tenants, 52 
 
 For irrigation, 101 
 
 For use of steam-engines, 101 
 
 Railroad company reducing volume of 
 stream, 102 
 
 Into new channel, 105, 115 
 
 By state, 178 
 
 Caused by bulkhead, 109 
 
 To lessen cost of structures, 113, 114 
 
 By use of land for public purposes, 255 
 
 Of underground currents, 275 
 
 Of underground waters-due to some motive, 
 
 Of percolating waters, 110, 254 
 
 By water company by pumping from well, 
 254 
 
 Of surface-water, 176, 191 
 
 Of sources of springs and wells -254 
 
 Of rivulet. 257 
 
 Of water for drainage not an appropriation, 
 75 
 
 Burden of proof is upon person who al- 
 leges it, 275 
 
 Measure of damages for, 111 
 
 Measure of damages for diversion of sur- 
 face-Water, 194 
 
 DIVIDING LINES : 
 
 See BOUNDARIES: FENCES; MONUMENTS; 
 TREES; WALLS. 
 
 DIVISION : 
 
 Of reclaimed lands, 383-390 
 
 DOCK-LINE : 
 
 See HARBOR-LINE. 
 DOCUMENTS : 
 
 See ANCIENT DOCUMENTS ; DEEDS ; FIELD 
 NOTES ; MAP; PLAN ; PLAT. 
 
 DOG: 
 
 Trespass of, keeper or owner liable, 353 
 DOMESTIC USE : 
 Of water of a stream, 60 
 
602 
 
 INDEX. 
 
 References are to sections. 
 
 DOMINANT : 
 
 (See also EASEMENTS ; ESTATES.) 
 Of an easement, 643 
 
 DONEE : 
 
 Tacking possession of, to donor, 687 
 
 DOWER : 
 
 Defined, 17 
 
 Attaches to hereditaments relating to realty, 
 
 17 
 
 Not in shares of stock of corporations, 17 
 Holding by, not adverse possession, 516 
 
 DRAIN : 
 
 Constructed under license, 661-670 
 
 Prescriptive rights in, 671-700 
 
 Authority of city to locate, 188 
 
 Enlarged at joint expense, 719 
 
 Must carry away waters of extraordinary 
 floods, 117 
 
 Made by landowner for agricultural pur- 
 poses, 178 
 
 DRAINAGE : 
 
 Of surface-waters, 178 
 
 Natural streams must receive natural drain- 
 age, 184, 205 
 Biparian owner's right to advantages of, 
 
 184 
 
 Obstruction of, an actionable wrong, 191 
 Prescriptive rights to, of surface-waters, 
 
 185 
 
 Of street destroyed by change of grade, 186 
 City liable for defective plans, when, 188 
 Of adjoining lands provided by railroad 
 
 company, 191 
 Of ponds, stagnant bodies, etc., 179 
 
 DUTIES : 
 
 Of surveyor in field-work, 404 
 Of surveyor at certain times, 512 
 Surveyor should look to submission to ar- 
 bitration, 471 
 
 Of adjoining owners as to roof-waters, 183 
 Of riparian owner to avoid injury toothers, 
 
 Of local authorities in cities, 787 
 Of street railway company, 793 
 
 EASEMENTS : 
 
 (See also BIGHTS or WAY.) 
 Defined and described, 29, 641-660 
 Appurtenant and in gross, 641 
 Essential qualities of, 641 
 Are incorporeal hereditaments, 29 
 Who may enjoy, 646 
 How acquired or created, 642 
 Acquired by adverse user, 671-700 
 Acquired by prescription, when 183 185 
 
 212, 262, 325, 500-503, 661-670, 671-700, 711- 
 
 Maintenance of, 647 
 
 How lost or extinguished, 643-660 
 
 Lost by non-user, 650, 651 
 
 Extinguished by merger, 645 
 
 Extinguished by act of God, 648, 649 
 
 Destroyed and restored, 647, 648 
 
 Abandonment of, 642-650 
 
 Extent and mode of use, 651 
 
 Bights and liabilities of parties, 647 
 
 Cannot be enlarged beyond terms of grant, 
 
 EASEMENTS Continued. 
 By instrument which does not describe 
 
 the land, 712 
 
 Facilities for enjoyment of, 648 
 Injunction to prevent interference with. 
 
 648 
 
 Enjoyed through artificial means, 713 
 Continuous and discontinuous, 641 
 Duty to maintain, 647 
 Distinguished from license, 661 
 An interest in land, 642 
 Not an interest in the fee, 644 
 Separable from land, 671 
 To draw water from well by pipe, 261 
 Of drain over or through land, 719 
 Of drain created by reservation, 719 
 Of eaves-drip, 183 
 Of light and air, 307, 714 
 To light and air reserved in a deed, 307 
 Of light and air cannot be created by pre- 
 scription, 307 
 Of air, light, and extra support discussed, 
 
 326 
 
 Of lateral siipport acquired by grant, 325 
 To lateral support acquired by prescrip- 
 tion, 326 
 
 Of access to street obstructed, 816 
 Of grantee over abutting land, 712 
 Interruption of, of abutting owner, 763 
 Bights of way in general, 711-721 
 Of right of way no longer needed, 755 
 Of right of way is an incumbrance, 712 
 By individuals in public ways, 682-685 
 Of right of way granted to a company, 714 
 To which railroad rights of way are sub- 
 ject, 191 
 
 Abandoned of right of way by railroad, 754 
 Of right of way for telegraph line, 818 
 Of subways and pipe-lines, 841-860 
 Of state, to control all navigable waters, 
 
 406 
 
 By public, include what, 238 
 Passage of public over streams is para- 
 mount, 240, 241 
 
 To manufacturing company to flow ob- 
 noxious matter into stream, 212 
 Of an adjoining landowner -in party- wall 
 
 ceases when wall becomes unfit, 339 
 Bight to, in party- wall limited, 338 
 In party-wall resting wholly on land of 
 
 neighbor, 338 
 
 In party- wall becomes appurtenant, 338 
 In land dedicated to public use, 705 
 Dedication of, to public, 701-710 
 Dedicated, acceptance of, 706 
 Dedicated, inure immediately to public, 
 704 
 
 EAVES : 
 
 Prescriptive right to drip, 676 
 
 Easement of drip, 183 
 
 Building should be provided with trough, 
 
 181 
 
 Land under, held to be conveyed, 836 
 Measurements to or from, 605 
 
 EASTERLY : 
 
 Meaning of word, 603 
 
 EJECTMENT: 
 
 Award fixing boundary-line will support, 
 
 462 
 To succeed in, must be entitled to posses* 
 
 sion, 77 
 
INDEX. 
 
 60 3 
 
 ^References are to sections. 
 
 ELECTRICITY : 
 
 (See also TELEGRAPH AND TELEPHONE 
 
 LINES; SUBWAYS.) 
 Defined, 291 
 
 Properties and character of, 291 
 Compared to other vibratory conditions, 
 
 292 
 Potential of, corresponds to intensity of 
 
 heat, 292 
 
 Spoken of as a fluid, 291 
 Capable of causing damage, when, 292 
 Collected for pleasure or profit, 292 
 Injuries resulting from escape of, 293 
 Property rights affected by, 291-300 
 Its effect upon the earth, 291 
 What give rise to suits for electrical dis- 
 turbances, 293 
 
 Litigation is between companies, 294 
 Companies using it, should prevent wires 
 
 from coining in contact, 296 
 Of electric-light company, used partly for 
 
 public purposes, 296 
 Telephone company refused relief from 
 
 earth currant, 296 
 Electric-light plant not a nuisance, when, 
 
 305 
 Causing public to suffer, may be abated as 
 
 a nuisance, 292 
 
 Created a private nuisance, when, 292 
 Impairing a person's enjoyment of his 
 
 estate, 292 
 
 Conduits for, 841-860 
 Sale of company's franchise, 874-878 
 
 ELECTRIC LIGHT: 
 
 Poles and wires in street, 811-840 
 
 ELECTRIC RAILWAY : 
 
 Lines and telegraph circuits, 831 
 
 Using earth as return circuit, 831 
 
 Wires of, distinguished from telegraph- 
 wires, 798 
 
 May not employ system to injury of tele- 
 phone company, 830 
 
 Injunction at suit of telephone company 
 refused, 830 
 
 Required by mandamus to prevent contact 
 of wires, 296 
 
 Bights in streets, 781-800 
 
 Changing grade of street, 798 
 
 ELECTROLYSIS : 
 
 Injury to pipes from, 293 
 
 ELEVATED RAILWAY : 
 
 In streets, 756-800 
 
 Injuries to abutting owners, from, 764 
 
 An element of danger, 764 
 
 Smoke, etc., from, impairs easement of air, 
 
 764 
 EMBANKMENTS : 
 
 May be erected to protect land from over- 
 flow, 132-134 
 
 Erected in public river, indictable, when, 242 
 
 Obstruct surface waters, 191 
 
 Water seeping through, 173, 175 
 
 EMINENT DOMAIN : 
 
 Defined, 32 
 
 A corporate franchise, 864, 875 
 Sale of franchise, 875 
 Power of, vested in the states, 32 
 :Not exercised by railroad company, when, 
 63 
 
 ENCROACHMENTS : 
 
 Upon public ways, 684 
 
 Upon adjoining land, 336 
 
 Of sea upon land, 372 
 
 Boundary will follow stream, 377 
 
 Means taken to prevent that of streams 
 
 upon land, 382 
 Of a building does not warrant a denial of 
 
 specific performance, 336 
 
 ENGINEER : 
 
 His advice and that of a lawyer, 361 
 Should know peculiarities of law in his 
 
 own state, 514 
 
 Should have general knowledge of the prin- 
 ciples of dedication, 703 
 
 ENGINEERING OPERATIONS : 
 
 Knowledge of law required to undertake, 
 
 1 and Preface. 
 
 Importance of prescription in, 671 
 Polluting stream, 207 
 
 ENTER AND TAKE : 
 
 License of purchaser, 667 
 
 ENTIRETY : 
 
 (See ESTATE-BY-ENTIRETY.) 
 
 EROSION : 
 
 Effect of, 377 
 
 Accompanied by accretion, 377 
 
 Of land by water, 371-400 
 
 Of water is as square of its velocity, 377 
 
 ERRORS : 
 
 (See also MISTAKE ; SURVEYING.) 
 In descriptions, 543-570 
 How overcome, 578 
 In stating area, 588-590 
 Elements of, in surveying, 571 
 In old surveys not to be corrected, 574 
 Grammatical and orthographical in deed, 
 
 562 
 
 ESCROW : 
 
 What is an escrow, 45 
 
 ESTATES : 
 
 Classified, 11 
 
 In land defined, 11-30 
 
 How acquired, 367 
 
 Owner in fee simple, 11 
 
 Acquired by occupation, 32 
 
 Party first taking possession, is a general 
 occupant, 32 
 
 Taken by heirs as special occupants, 16 
 
 Taken by grantee, during grantor's life, 16 
 
 To create it for life, 16 
 
 Pur autre vie occur, when, 16 
 
 Taken by executors as personal property, 
 when, 16 
 
 In Lands : 
 
 May be taken by an alien friend, 34 
 Of deceased alien, 34 
 What is privity of, 687 
 Merged and resubdivided, 366 
 Where none passes by deed, 376 
 Merger of, extinguishes easement, 645 
 Adverse user, over, 676-680 
 Description applies to more than one, 553 
 Map of, should be reviewed and revised, 
 454 
 
INDEX. 
 
 References are to sections. 
 
 ESTATES Continued. 
 On Condition : 
 
 Defined, 27 
 
 Conditions may be expressed or implied, 
 27 
 
 Conditions precedent or subsequent, 27 
 In Coparcenary : 
 
 Defined, 25 
 By Entirety : 
 
 Possessed by, 25 
 
 Controlled by, 25 
 
 Created by, 25 
 
 No rights of partition, 25 
 In Expectancy : 
 
 Cannot be had until a future time, 22 
 In Fee Simple : 
 
 Defined, 14 
 
 In a transfer, the conveyance must be to 
 
 grantee and heirs, 14 
 In Possession : 
 
 Gives right of present enjoyment, 22 
 In Reversion : 
 
 Defined, 23 
 In Severalty : 
 
 Defined, 26 
 
 Opposed to joint ownership, 26 
 At Sufferance : 
 
 Defined, 21 
 
 How created, 21 
 
 Becomes an estate at will, when, 21 
 In Tail : 
 
 Defined, 15 
 
 Words of limitation in its creation, 15 
 
 General and special, 15 
 
 Is inalienable, 15 
 
 May be barred by deed, 14 
 
 Reverts to grantor, when, 15 
 
 Cannot exist in personal property, 15 
 At Will : 
 
 Defined, 20 
 
 Ended by intention to terminate tenancy, 
 20 
 
 Tenant has no interest that he can con- 
 vey, 20 
 
 When terminated by landlord, 20 
 
 Determination of, not recognized by 
 
 courts, 20 
 For Years : 
 
 Defined, 18 
 
 ESTOPPEL : 
 
 Title acquired by, 32 
 
 Applied to agreements as to location of 
 
 boundaries, 499, 504 
 
 None, if true line can be determined, 499 
 License irrevocable by, 662, 663 
 Should be pleaded, 499 
 
 EVIDENCE : 
 
 (See also HEARSAY; PAROL EVIDENCE; 
 
 SURVEYOR; TESTIMONY.) 
 To establish boundaries, 611-633 
 Admissible to establish starting-point, 630, 
 
 631 
 
 Maps and plans as, 613-624 
 Copies of old maps and records, 615-618 
 Field-notes as, 617 
 Of person since deceased, 625-629 
 Hearsay of boundaries, when admissible, 
 
 620 
 Trees or stumps as, 580 
 
 EVIDENCE Continued. 
 Old mounds and pits as, 580 
 Fences of monuments, 581 
 To identify monuments, 580, 617-640 
 Should go to jury as presented, 572 
 When are opinions, 627, 628 
 Possession is, of title, 514 
 Of possession is shown by notice of appro- 
 priation, 75 
 
 Of the need of water for public, 143 
 Of diversion admissible, when, 105, 111 
 Of benefit from obstruction in navigable 
 
 waters, not admissible, 242 
 Of non-user of water-ditch, 76 
 To show abandonment, 76 
 
 EXCAVATIONS : 
 
 (See also ADJOINING OWNERS ; BOUNDA- 
 RIES; LAND; LATERAL SUPPORT.) 
 On one's land must afford lateral support 
 
 to neighbor, 321-335 
 Must not cause damage to adjacent land, 
 
 327 
 
 Bight of, on one's land, 324 
 Care and diligence required, 331 
 Person making, not liable for damages, 
 
 when, 333 
 
 Notice of, should be given to neighbor, 328 
 Which draw underground waters, 275 
 
 EXCESS : 
 
 (See also ACREAGE; DEFICIENCY.) 
 Of acreage in survey, 591 
 In acreage, how distributed, 597 
 Area not considered, when, 588-590 
 Allowed in a deed, 592 
 When land is described by adjoiners, 597 
 
 EXCLUSIVE FRANCHISE : 
 
 (See also CORPORATION ; FRANCHISE ; MO- 
 NOPOLY; BIGHTS or WAY.) 
 Not in favor, with courts, 147, 792 
 Granted to water company, violated, how, 
 
 147 
 
 Telegraph company cannot contract for, 819 
 Not granted by railroad company to tele- 
 graph company, 819 
 To operate horse railways, 795 
 Granted telephone company by state, 822 
 
 EXECUTION : 
 
 Sale of franchise on, 877 
 
 EXEMPTION : 
 
 From taxation, a franchise, 865, 876 
 
 EXISTENCE : 
 
 Of corporation terminated, 879-885 
 
 EXTENT OF USE : 
 
 Of water for irrigation, 75 
 
 EXTINGUISHMENT : 
 
 Of corporate franchise, 879-885 
 
 EXTRAORDINARY : 
 
 Flood, is a question lor jury, 115 
 Bains, liability determined by, 181 
 Use of waters includes what, 60 
 
 FACT: 
 
 Questions of law and fact, 628 
 Questions of, are for the jury, 611-613 
 Surveyor's knowledge of, 627, 628 
 
INDEX. 
 References are to sections. 
 
 605 
 
 FAILURE : 
 
 Of corporate franchise, 879-883 
 
 FAMILIAR NAME : 
 
 Land described by, 554 
 
 FEE- SIMPLE : 
 
 Estate of, defined, 11, 14 
 Cannot be created anew, 14 
 Owner may dispose of it, 14 
 
 FENCE : 
 
 On boundary-line, 605 
 As a monument in a survey, 581 
 Evidence of boundary-line, 581 
 Measurements made to what part of, 605 
 To inclose for adverse possession, 522 
 To obstruct light of neighbor, 341 
 
 FIELD-NOTES : 
 
 Lands described by, 410 
 As evidence of boundaries, 617 
 Are records from which to determine orig- 
 inal line and stakes, 574-580 
 Governed by monuments, 573 
 Against map, 600 
 
 FIELD OPERATIONS : 
 
 Effect on descriptions, 404 
 
 FIGURES : 
 
 Mistakes in a description, 552 
 
 FILLING : 
 
 Wrongful, to another's land on a stream, 
 382 
 
 FIRE : 
 
 Want of water and house destroyed by, 148 
 
 FIXTURES : 
 
 Defined, 7 
 
 Chief elements in determining, 7 
 
 Some chattels are, 7 
 
 Must be capable of becoming personal prop- 
 erty, 8 
 
 Whether an article is or not, a question of 
 law and fact, 7 
 
 Annexation of, may be actual or construc- 
 tive, 7 
 
 Leaving them upon premises is abandon- 
 ment, 8 
 
 Law allows reasonable time for removal of, 
 8 
 
 May be removed, when, 8 
 
 Agreements in regard to, 8 
 
 Engines and machinery are, when, 7 
 
 An organ in a church is, 8 
 
 Looms, etc., in cotton-mill are not, 7 
 
 When are pipe-lines, 847 
 
 Pass to good-faith purchaser, 8 
 
 FLAT-LANDS : 
 
 Subdivision of those acquired by reliction 
 383-390 
 
 FLOODS : 
 
 (See also STREAMS ; WATERS.) 
 Injuries due to, 90 
 Protection against, 131-140 
 Structures must provide for, 85, 113 
 Question whether unusual is for the jury, 
 
 Are surface-waters, when, 136 
 
 FORCE : 
 
 In prescription, 675-682 
 
 FORFEITURE : 
 
 Defined, 32 
 
 . Of charter or franchise, 796, 884 
 Of street-railway franchise, 796 
 Of landed interest by words on map, 454 
 
 FOULING : 
 
 ' SIEEAMS; 
 
 FRANCHISE . 
 
 i KIOHT 
 
 Character and kind, 861-863 
 
 Granted by the state, 861-863 
 
 Value of, consists in what, 861-867 
 
 By Federal government. 873 
 
 Held by sovereign power, 376 
 
 Distinguished from a mere license, 661-670 
 
 <oo 
 
 For term of years, 848 
 On condition, 871-877 
 Which constitutes a contract, 862 
 When a contract obligation, 868 
 Eights of state in, to be protected 862 
 Legislative control of, 862 
 Legislation affecting remedies of, 870 
 Modified by ordinance, 869 
 Power of legislature to amend, limited, 868 
 
 o71 o7o 
 
 Effect of power to amend, 871 
 Protection of capital invested in 871 
 Value destroyed by adverse legislation, 871 
 Subject to police power, 869 
 And the labor law, 871 
 Exclusive rights in, 867 
 Eight to a monopoly, 867 
 Constitutions prohibit unconditional 871 
 Not irrevocable gifts, 871 
 Of eminent domain, 864, 875 
 Exemption from taxation, 865, 876 
 Municipal aid is a, 866 
 A railroad charter is, 731 
 Of water company to be purchased by city, 
 
 May be granted to water company by city, 
 
 Of public to use streets for improved 
 
 modes of travel, 296 
 For street railway defined, 786 
 Of telephone company to use streets is 
 
 subservient to rights of public, 296 
 To build and operate pipe-line, 841-860 
 For fishing, wrecking, ferries, and mining, 
 
 376 
 
 In shores held for defenses 376 
 Taxation of, 886 
 Taxes, how measured, 886 
 Forfeiture of, 884 
 
 Eevocation of, for certain causes, 873 
 Surrender of, to state, 879-881 
 Extinguishment of corporate, 879-885 
 Effect of extinguishment, 885 
 Sale of, on execution, 877 
 Not forfeited by violation of injunction 151 
 Mortgage and sale of, 874-878 
 Not destroyed by erecting new structure, 
 
6o6 
 
 INDEX. 
 
 References are to sections. 
 
 FRAUD : 
 
 Prevents running of statute of limitation, 
 when, 688 
 
 FREEHOLD : 
 
 Defined, 12 
 
 FRESHET : 
 
 See FLOOD ; STREAMS ; WATER. 
 
 FRUIT : 
 
 On trees near boundary-line, 313 
 
 GAS AND OIL : 
 
 (See also PEKCOLATING WATERS; PIPE- 
 LINES ; SUBWAYS.) 
 
 Nature arid character of, 282 
 
 Compared to percolating waters, 281 
 
 Ownership of, in land, 281-290 
 
 Are part of land in which they are con- 
 tained, 281, 282 
 
 Are part of the realty, 283 
 
 Not subject to absolute ownership, 282 
 
 Drawn from land by adjoining owner, 282 
 
 Escaping and going upon another's land, 
 282 
 
 Conveyance of, 283 
 
 In grants of mineral rights, 283 
 
 Grant of gas-well rights is exclusive, when, 
 283 
 
 Gas is not included in petroleum or car- 
 bon oil, 283 
 
 Natural gas is not heat, 283 
 
 Petroleum a mineral, 283 
 
 Eights incident to their appropriation, 284 
 
 Wells drilled through a coal-mine, 284 
 
 Allowed to escape and go to waste, 282 
 
 Escaping, appropriated by tenant, 283 
 
 Escape of, and destruction of vegetable 
 life, 849 
 
 Transportation of, 841-860 
 
 Pipe-lines for, 841-860 
 
 Statute forbidding transportation from 
 state is void, 283 
 
 Leased to company may not be interfered 
 with by lessor, 284 
 
 GAS COMPANY : 
 
 (See also CORPORATIONS ; FRANCHISES.) 
 
 Its incorporation, organization, and con- 
 trol, 285 
 
 Is a quasi-public, institution, 285 
 
 Franchise for pipes for a limited term, 848 
 
 Sale of franchise, 874-878 
 
 Property in pipes and plant, 847 
 
 Creating unwholesome odors is a nui- 
 sance, 305 
 
 Pollution of waters by refuse from works, 
 221 
 
 Not a nuisance when business is conducted 
 carefully, 305 
 
 Liable when sewer-gas mixes with illu- 
 minating-gas, 264 
 
 Its pipes must not obstruct navigable 
 stream, 242 
 
 City liable for damages caused by its gas- 
 reservoir, 221 
 
 Leasing and using natural-gas well, 284 
 GATES : 
 
 Across ways to prevent adverse user, 183, 
 676-680, 684 
 
 GEOGRAPHICAL FEATURES : 
 
 Judicial notice of, 551, 561 
 
 GOOD FAITH: 
 
 In adverse possession to make color of 
 title, 533 
 
 GOVERNING : 
 
 Factors in a description, 571-610 
 
 GOVERNMENT : 
 
 (See also BOUNDARIES; CROWN; MONU, 
 
 MENTS; PUBLIC; STATE.) 
 Its duty to make public improvements, 861 
 Controls navigable waters, 375-400 
 May authorize surveyors to operate on prk 
 
 vate property, 353-355 
 Telegrams of, have priority over all busu 
 
 ness, 820 
 
 Has same property and right as any pro- 
 prietor, when, 53 
 
 Interest of persons in government bound- 
 ary, 363 
 
 Section corner not in township line, 577 
 Monuments control in government surveys, 
 
 577 
 
 GRAMMAR : 
 
 In a deed, 562 
 
 GRANT : 
 
 (See also DEED ; DESCRIPTION ; GRANTOR.) 
 Description is essential to, 367 
 To be interpreted in light of its date, 578 
 Oldest will prevail, 602 
 Inconsistent one with another, 751 
 Of railroad charters are public franchises, 
 
 731 
 To a railroad by legislature of right to 
 
 occupy streets, 758 
 Soil of street included, when, 452 
 One half of bed of stream included in, 406 
 Bounded by non-navigable stream goes to 
 
 its middle line, 403 
 
 Extends to middle of stream, when, 422 
 To high-water mark, 374 
 "To," "at," "along," "by," "on," "with," 
 "up," or "down" a stream or body of 
 water, 405-410 
 On lakes and ponds, 421-430 
 Method of obtaining additional support, 325 
 Shore of waters may become private prop- 
 erty by, 376 
 
 Of waters of spring, 110 
 Of right to divert waters, 62 
 Of right to underground waters, 260 
 Of exclusive right to supply city from one 
 
 source, 147 
 
 Of land, forbidden, except to riparian own- 
 er, 413 
 
 Of land on water, comprises what, 406 
 Co_nveys fee to land under a wharf, when, 
 
 Of land with no outlet to street except over 
 
 grantor's lot, 715 
 Eights of way, the subject of, 712 
 Of rights of way, implied, when, 740 
 Of right of way, if absolute, when, 735 
 Of right of way for ditch, an easement, 77 
 Of right of way along a stream does not 
 
 make grantee a riparian owner, 53 
 Of gas-well rights is exclusive, when, 283 
 To sink test-wells created an incorporeal 
 
 hereditament, when, 283 
 
INDEX. 
 References are to sections. 
 
 6o 7 
 
 GRANTEE : 
 
 Of a deed, 42, 556 
 
 May elect between two tracts, when, 553 
 
 Conveyance of land bounded on a highway. 
 
 446 
 
 Taking title to center of street, 447, 449 
 May claim whole of street, when, 443 
 Has right to have street kept open, 714 
 Takes to center of lake, when, 421 
 May not take to low-water mark, when, 421 
 Of right of way along a stream not a ripa- 
 rian owner, 53 
 
 Water, a consideration with, 371 
 May not be deprived of riparian rights, 424 
 Of all water of stream, 77 
 Of water right is entitled to take, how much, 
 
 75 
 
 May use water, when, 75 
 Not required to reduce quantity, 75 
 Not bound to maintain spring in same 
 place, 260 
 
 GRANTOR : 
 
 Must own interest conveyed, 42 
 
 Cannot retain any control over a deed, 45 
 
 May acknowledge execution of deed before 
 
 two or more witnesses, 45 
 Must be known by person taking acknowl- 
 edgment, 45 
 
 Induced by fraud to make deed, 48 
 Title to shore derived from state or by pre- 
 scription, 411 
 Entitled to mine without leaving support, 
 
 334 
 
 Boundaries determined by intention of, 405 
 His intention to be determined, 404, 572 
 Conception and exception of description 
 
 attributed to, 404 
 
 Describes land as belonging to him, 552 
 Of railroad right of way, 734 
 May maintain ejectment against railroad, 
 
 when, 735 
 Loses right of way in common with grantee, 
 
 when, 717 
 
 Erecting structure which creates a nui- 
 sance, 306 
 
 GROUND- WATER : 
 
 (See also PEBCOLATING and UNDER- 
 GROUND WATERS.) 
 Pollution of, prevented by injunction, 270 
 
 HALF: 
 
 Land described " east half," 554 a 
 
 HARBOR LINES : 
 
 Must be fixed with reference to navigation, 
 
 381 
 Establishment of, by state, gives privileges, 
 
 381 
 
 Lands reclaimed within, 381-390 
 Natural accretion limited to, 381 
 Land outside of, belongs to whom, 381 
 HEAT: 
 
 Excessive, is a nuisance, 302 
 Electricity and heat, 292 
 Natural gas is not, 283 
 
 HEDGE : 
 
 Not a good monument, 370 
 HEREDITAMENTS : 
 
 Corporeal and incorporeal, 3 
 Include what, 3 
 
 HIGH- WATER MARK: 
 
 (See also BOUNDARIES ; LAKES ; PONDS ; 
 
 SEA ; STREAM ; WATERS.) 
 Denned, 374 
 Descriptions by, 376 
 Of fresh-water rivers, 374 
 Freshets not considered, 374 
 Limits riparian owner's rights, when, 381 
 
 HIGHWAY : 
 
 (See also ALLEY ; EOAD ; STREETS ; WAYS.) 
 Measurements to or from, 606 
 Bridges a part of, 720 
 Established by adverse use, 683 
 Acceptance of, shown by construction ot" 
 
 culvert, 717 
 Dedication of, is complete when public 
 
 uses the way, 702 
 
 Travel on, interfered with by surveyor, 355 
 Bight to occupy it permanently, 242 
 Person using it first will be protected 
 
 against injurious interference, 295 
 Laid out across railroad, 751 
 Crossing street-railway tracks, 785 
 Steam railroads in, 756-760 
 Telegraph lines in, 811-840 
 Subways in, 841-860 
 Accretions to a public, 379 
 
 HOMESTEAD : 
 
 Defined, 17 
 HOSTILE : 
 
 As applied to possession, 517 
 HOUSE-LOTS : 
 
 Described by lot number, 541-552, 598 
 
 Accretions to, on stream, 406 
 
 HUSBAND : 
 
 Adverse possession of, 516 
 
 HUSBANDRY : 
 
 Uses of water for, 71-80, 371 
 
 ICE: 
 
 (See also APPROPRIATION; RIPARIAN 
 OWNERS ; STREAMS ; WATERS.) 
 
 Defined, 162 
 
 Character of property in, 162 
 
 Beal or personal property in, 163 
 
 Its likeness to alluvion, 162 
 
 Supply of, to cities, 161-170 
 
 Of private or unnavigable streams belongs 
 to riparian owner, 163 
 
 In taking it, mill-owner must not be de- 
 prived of water, 166 
 
 Biparian owner sued for removing it, 166 
 
 Title to, in person entitled to use of water, 
 167 
 
 Of lake or pond, 165, 167 
 
 Of navigable streams belongs to public, 164, 
 168 
 
 Belongs to person taking possession, 164 
 
 Harvesting may impede travel, 168 
 
 Bight to take it, depends upon what, 164, 
 167 
 
 Cut and packed is subject of larceny, 163 
 
 Measure of damages for taking, 169 
 
 IDENTITY : 
 
 Of land in a description, 550 
 
 Of land fixed by reference to maps, etc., 
 
 555 
 
 Of a corner is for the jury, 580 
 Evidence of, of monuments, 580, 617-640 
 
6o8 
 
 INDEX. 
 References are to sections. 
 
 IDIOCY : 
 
 Disability under law of limitations, 688 
 
 IGNORANCE : 
 
 Cause of trouble over boundaries, 366 
 Of occupant as to true line, its effect on 
 adverse possession, 517, 518 
 
 IMPERFECT : 
 
 Description of land, 546 
 
 IMPROVEMENT : 
 
 Of laud the object of engineering opera- 
 tions, 1 
 
 Made under a mere license. 661 
 
 On land under rules of law, 177 
 
 In making must not destroy lateral support 
 of adjoiners, 321-335 
 
 Of land gives title, when, 372 
 
 Made upon submerged land without com- 
 pensating owner, 241 
 
 Of navigable waters must not interfere 
 with private property, 241 
 
 Of navigation superior to individual rights, 
 241 
 
 Navigability does not depend upon, 233 
 
 INCLOSURE : 
 
 To constitute adverse possession, 522 
 
 INCORPOREAL RIGHTS : 
 
 (See also EASEMENTS ; EIGHTS OF WAT.) 
 Comprise what, 29 
 Must be conveyed by deed, 43 
 Acquired by prescription, 671-700 
 Acquired by adverse user, 671-700 
 Affected by public improvement, 671 
 Met in engineering, etc., 641 
 
 INCREASE : 
 
 Of land by accretion, etc., 371-390 
 
 INDUCTION : 
 
 (See also ELECTRICITY ; EIGHTS OF WAT ; 
 
 TELEGRAPH-LINES.) 
 In telephone wires prevented, 295 
 Interference with telephone lines by, 828 
 
 INDUSTRIAL USES : 
 
 Of water of a stream, 59, 63, 75 
 
 INHERITANCE : 
 
 Denned, 13 
 
 INJUNCTION : 
 To Prevent : 
 
 An act when no damage is suffered, 219 
 
 What will be considered, 219 
 
 Wrongful taking of water, 220 
 
 Wasteful use of water, 58 
 
 Pollution of stream, 61, 209 
 
 Pollution of stream will be denied, when, 
 
 219 
 Operation of works which pollute stream, 
 
 201 
 
 Fouling of ground- waters, 270 
 Pollution of waters by chemicals, 216 
 Increased discharge of sewage, 219 
 Use of stream for stock-farming, 208 
 Obstruction of stream, 118 
 Detention of waters, 86, 150 
 Shutting off water, 150 
 Enforcement of unreasonable rules, 151 
 Discharge of water into drain, 178 
 
 INJUNCTION Continued. 
 To Prevent : 
 Person from removing trees in public 
 
 ways, 319 
 
 Eemoval of shade-trees, 717 
 Erection of telegraph line, 814-816 
 Use of single-trolley system of street 
 
 railways, 296 
 Electric railway from interfering with 
 
 operation of telephone line, 830 
 One railroad from interfering with an- 
 other, 751 
 
 Gas company from laying pipes, 846 
 Destruction of lateral support, 329 
 An overhanging projection, 336 
 Erection of building excluding light from 
 
 neighbor's house, 308 
 Mortgagor from removing permanent 
 
 fixtures, 8 
 Multiplicity of suits, when, 223 
 
 INJURIES : 
 
 (See also DAMAGES ; MEASURE OF DAM- 
 AGES.) 
 
 Defined and described, 132 
 
 To an easement, only danger and inconven- 
 ience, 763 
 
 Temporarily depriving owner of use of 
 
 ' property, 193 
 
 Eesultiug from expropriation of property, 
 241 
 
 To abutting estates, 761, 762 
 
 To abutting owners from elevated roads, 
 764 
 
 To a lot by railroad bridge, 721 
 
 Caused by defective railroads, 794 
 
 Eesulting from escaping or induced elec- 
 tricity,' 293 
 
 Eesultiug from contact of electric wires, 
 296, 827 
 
 To pipes by electrolysis, 293 
 
 Caused by discharges from gas-works, 221 
 
 To lateral support, 329 
 
 From overhanging trees, 317 
 
 By smoke must result from unreasonable 
 
 use of property, 301 
 
 N Caused by smoke, etc., from a low chimney, 
 305 
 
 To vessels by submarine cable, 824 
 
 To dam, 89 
 
 To riparian owner by diverting waters, 61 
 
 Due to floods, 90 
 
 To property from water by accidents, 183 
 
 From roof-water, 180, 181 
 
 From snow, etc., from roof, 182 
 
 Failure to guard against injuries from pol- 
 lution of waters, 220 
 
 INSANITY : 
 
 Disability under law of limitations, 688 
 
 INSUFFICIENT : 
 
 Description of land, 546 
 
 INTENTION : 
 
 (See also BOUNDARIES ; DEED ; DESCRIP- 
 TION; GRANT.) 
 Of parties, if ascertained, will prevail, 405- 
 
 410, 450, 542, 544, 550, 557, 572, 633 
 In a deed, how shown, 557, 558 
 Must be gathered from deed, 542 
 Determines limit of title, of deed, 450 
 Is the vital element in a description or 
 
 dedication, 701 
 
INDEX. 
 References are to sections. 
 
 6o 9 
 
 INTENTION Continued. 
 
 Of grantor ascertained by rules of con- 
 struction, 14 
 
 To claim and hold, essential to adverse 
 possession, 517, 518 
 
 Adverse and hostile character of posses- 
 sion a question of, 517 
 
 Best evidence of, 571 
 
 Evidence to explain, 550 
 
 Of parties should be shown in submission 
 to arbitration, 471 
 
 Of party making annexation the chief ele- 
 ment in determining fixtures, 7 
 
 Of alteration will not change chattel to 
 fixture, 8 
 
 Of landowner to dedicate, 701-703 
 
 Of dedicator must be expressed, 454, 709 
 
 To make excavations must be made known 
 to adjoining owner, 322 
 
 To convey a certain area, 588-597 
 
 Not to make a road a boundary, 582 
 
 Does not determine trespass, 351 
 
 Presumption of abandonment created by 
 non-use, 76 
 
 To create an easement of light and air, 307 
 
 INTEREST : 
 
 Of a witness in boundary case, 619, 625 
 Private interest in government boundary. 
 365 
 
 INTERFERENCE : 
 
 With light and air, 302, 308 
 Of claims to land, 532 
 Of surveyor with travel on street, 355 
 With trees growing in public ways, 319 
 With telephone lines by induction, 828 
 Between currents, prevented by metallic 
 circuit, 830 
 
 INTERPRETATION : 
 
 Of descriptions in deeds, 541 
 
 Of deeds when parts conflict, 571-610 
 
 INTERRUPTION : 
 
 What amounts to an, 676-680 
 
 Method or means of, 680 
 
 Instances of, 679 
 
 In prescription, 183, 676-680 
 
 Of rights of way, 676-680 
 
 Of adverse possession, 529 
 
 Of adverse user and disabilities of land- 
 owner, 688 
 
 Determined by location and character of 
 land, 531 
 
 INTERSECTION : 
 
 Of streets and roads in descriptions, 452 
 
 INVASION : 
 
 Of property rights and prescription, 671- 
 700 
 
 IRON PIPE : 
 
 As a monument, 370 
 
 IRREVOCABLE : 
 
 See GRANTS ; LICENSE ; EEVOCABLE. 
 
 IRRIGATION : 
 
 (See also APPROPRIATION : PRIOR APPRO- 
 PRIATION: STREAMS; WATERS.) 
 Defined and described, 71 
 Nature of rights, 77 
 
 IRRIGATION Con tinned. 
 Under common law, 71 
 Local laws of states, 72 
 A natural want, when, 71 
 Riparian owners share equally, when, 71 
 Use of water for, is public, 74 
 In arid countries, 71-77 
 Eights, abandonment of, 76 
 Failure to use, evidence of abandonment 
 
 76 
 
 Eight to divert water for, 71 
 Eights by prior appropriation, 73 
 May not conduct surplus water, 75 
 
 ISLANDS : 
 
 Ownership of , 431 
 
 Ownership by civil and common law, 431 
 
 Boundaries of, 431, 432 
 
 Made by accretion, 378 
 
 Washed away, and reformed by accretion, 
 
 belong, 380 
 
 Alluvion deposited against, 432 
 Title to does not include flats, 421 
 Property in, when joined to land, 378, 431. 
 
 432 
 
 Formed by sudden change, 431 
 Formed over site of mainland, 380 
 Eising in sea or navigable river, 431 
 In Lake Huron, 431 
 
 JOINT OWNERS : 
 
 Defined, 25 
 
 Of party-wall has right to increase its 
 
 height, 340 
 Cannot hold adversely, 77 
 
 JOINT TENANCY : 
 
 Defined, 25 ' 
 
 Must possess four essential elements, 25 
 
 Main feature is survivorship, 25 
 
 Created by purchase, 25 
 
 Cannot exist between corporations, 25 
 
 In line trees and shrubs, 311-314 
 
 JUDGE : 
 
 See ARBITRATOR; COURT; JURY. 
 
 JUDICIAL NOTICE : 
 
 Of abbreviations, 561 
 
 Of geographical features, 551, 561 
 
 Of variation of magnetic needle, 561 
 
 JURY: 
 
 Determines questions of facts, 611, 612 
 Decides question of damages, 223 
 Decides whether an- odor is a nuisance, 305- 
 Determines whether pollution is a nui- 
 sance, 264 
 
 Determines whether stream is public high- 
 way, 243 
 In determining damages, may consider 
 
 what, 223 
 
 Determines boundaries, when, 611-613 
 Will consider what in determining bound- 
 ary, 611-640 
 
 Court should leave it unbiassed, 612 
 Should 'decide on evidence, without com- 
 ments by court, 572 
 
 JUSTICE : 
 
 See COURT. 
 LABOR LAWS: 
 
 Constitutionality of. 869 
 Corporations subject to, 871 
 
6io 
 
 INDEX. 
 
 References are to sections. 
 
 LAKES AND PONDS : 
 
 (See also BOUNDARIES; NAVIGABLE 
 
 STREAMS; WATERS.) 
 Boundaries on, 421-430 
 Accretions to, 361-390 
 Differ from rivers, 235 
 Boundaries on, depend on navigability, 421 
 Prescriptive rights to waters of, 671-700 
 Shore beach, bank, or water's edge, 423 
 Title to bed of, 421 
 Receding waters of, 424 
 Waters of, lowered for improvement, 424 
 Natural, enlarged artificially, 422 
 Lauds reclaimed from, 381-390 
 Title to island in Lake Huron, 431 
 Eight to ice of, 165 
 
 LAND: 
 
 (See also ACREAGE; AREA; BOUNDARIES; 
 DEED ; DESCRIPTION ; EASEMENTS ; ES- 
 TATES ; MORE OR LESS ; EIGHTS OF 
 WAY ; SURVEYS.) 
 Use of the word, 5 
 Includes an easement, when, 5 
 Who may hold and own, 34 
 Reserved to original owner, 455, 456 
 Estates merged and subdivided, 366 
 If devise of, is personal, the devisee takes 
 
 the fee, 14 
 
 Descended by special customs, 33 
 A house becomes a part of it, when, 6 
 Things annexed constructively belong to it, 
 
 Various estates in, described, 11-30 
 Held by a trustee, 34 
 
 Right to own and dispose of, includes pow- 
 er to mortgage it, 36 
 Rights incident to : 
 Conditions existing naturally, 292 
 Substances which constitute the soil, 292 
 Minerals, including water, 55, 281-290, 371 
 Riparian rights, 55 
 Lateral support, 321-340 
 Ownership of gas and oil in, 281-290 
 Light and air incident, 301 
 Title Acquired or Transferred : 
 Title to, determined by state laws, 412 
 Acquired by operation of law, 31 
 Acquired by purchase, 31 
 Acquired by original occupation, 31 
 By grant or by law, 367 
 Title to, cannot be shown by parol evi- 
 dence, 495 
 Award of arbitrators does not affect title 
 
 to, 469 
 Ownership of, determined by arbitration, 
 
 when, 462 
 
 Islands belong to whom, 378, 431, 432 
 By the unit measure, 590 
 Formed by Accretion : 
 Increase of, called accretion, 371-379 
 Owners of, upon lakes have accretion and 
 
 reliction, 381 
 Between levee and river belongs to whom, 
 
 376 
 
 Made by filling navigable stream, 381 
 Conveyance of, includes accretions, 378 
 Accretions to, extending in front of an- 
 other's land, 378 
 Reserved for public^ use, who holds title 
 
 to accretions, 379 
 When not an accretion, 378-390 
 
 LAND Continued. 
 
 Formed by Accretion : 
 
 Loss of, by erosion or submergence, 371- 
 
 390 
 
 Washed away and reformed, 380 
 Inside of harbor-lines belongs to whom, 
 
 381 
 Means to prevent encroachment of 
 
 streams upon, 382 
 Reclaimed and Reformed: 
 Formed by reliction, 424 
 Reformed on site washed away, 380 
 Title to, which reappears after being 
 
 submerged, 380 
 From receding waters belongs to whom, 
 
 432 
 
 Reclaimed, how subdivided, 383 
 Division of lowlands among abutting 
 
 owners, 383-390 
 Under ponds belongs to riparian owners, 
 
 382, 421, 422, 424 
 
 Under water, how measured, 387 
 Under navigable stream, how divided, 
 
 383 
 
 Gradually submerged, 377-390 
 Submerged, improved without compen- 
 sation to owner, 241 
 Title to, when bed of lake, 421 
 Title to, situated within meander-line, 
 
 414 
 
 Upland owner takes to, where, 414 
 Newly formed in old bed of river, 431 
 Reclaimed from water of a harbor, 381 
 Projecting into water, part of quarter 
 
 section, 409 
 How Described : 
 Boundary of, defined, 364 
 Ways of describing, 361-370, 543 
 Extent of, how determined, 368 
 As part of a whole, 554 a 
 As belonging to grantor, 552 
 Description applies to more than one 
 
 parcel, 553 
 
 Sufficiency of description, 543, 544 
 Failure of description, 367 
 Conveyance void for uncertain descrip- 
 tion, 544 
 
 Result of correcting descriptions, 363 
 Defined by the sea, 372 
 Described by lake or pond, 421-430 
 " By," " on," or " running along" lake or 
 
 pond, 423 
 
 By an inland navigable river, 238 
 By non-navigable stream, 371, 406, 421 
 "At," "along," "by," "on," and "with" 
 
 a stream, 406-408 
 Under water as part of area, 411 
 By a street or way, 406, 445, 446, 709 
 By line of a railroad, 544 
 By lot number, 377 
 By reference to a map, 410, 599, 600 
 Determined by arbitration, 461-490 
 Possession of : 
 
 Title to, established by possession, 514 
 Adverse possession of, 511-540 
 Possession must be by claimant, 524 
 To be an occupant, a person must use 
 
 and possess, 32 
 Acquired by adverse possession, how 
 
 limited, 368 
 Extent limited to that occupied, 368 
 
INDEX. 
 
 "References are to sections. 
 
 LAND Continued. 
 Possession of : 
 Held adversely should be inclosed on all 
 
 sides, 522 
 Hold uiider mistake as to boundaries is 
 
 held adversely, 517 
 
 Location aud character determine ad- 
 verse possession, 531 
 Right of way over wild and unimproved, 
 
 521, 683 
 
 Payment of taxes not possession, 523 
 Public's right of way over, acquired by 
 
 user, 683 
 
 Prescriptive rights in, 671-700 
 Prescriptive rights over, acquired by 
 
 railway, 535, 684, 685 
 Disturbance of possession is a trespass, 
 
 351 
 After dedication title cannot be acquired 
 
 by adverse possession, 705 
 Good faith necessary to acquire title 
 
 under color of title, 533 
 Casements in : 
 
 Subordinate to dominant right, 77 
 Cannot create an easement in land not 
 
 described, 712 
 Bight of way when surrounded by land 
 
 of another, 715 
 
 Eights in, by dedication, 701-710 
 Dedicated for strictly public purposes, 
 
 705 
 
 Dedicated for a particular use, 705 
 Dedicated for highway subject to what 
 
 right, 708 
 
 Bight to land dedicated to public extin- 
 guished by non-user, 707 
 Improvements on : 
 Essential to a site for public works, 1 
 Under rules of law, 177 
 Condemned by government for public 
 
 purposes, 32 
 Structure erected upon, without owner's 
 
 permission, 6 
 Taken under public grants, by a railroad, 
 
 751 
 Taken by city for street purposes without 
 
 owner's consent, 703 
 Telegraph lines strung over, 817 
 Leased for mining purposes, 283 
 Conveyance of, for erection of reservoir, 
 
 272 
 
 Future changes and transformations, 366 
 Injuries to : 
 By a neighbor's acts, 193 
 By surface- water not drained by city, 186 
 By obstruction of surface-water, 191 
 By diversion of surface-waters, 194 
 By refuse from factory, 272 
 By manufacturing plant, 302 
 By destruction of trees, 320 
 By percolations from ditch, 274 
 By deposits on land, 223 
 
 LANDMARKS : 
 
 Not to be upset by surveyors, 574 
 
 LANDOWNER : 
 
 (See also ABUTTING, ADJOINING, and RI- 
 PARIAN OWNERS; BOUNDARIES; EASE- 
 MENTS.) 
 Rights of: 
 
 To improve his own land, 2, 177 
 
 LANDOWNER Continued. 
 Rights of : 
 
 To make improvements by giving neigh- 
 bor notice, 322 
 
 To divert waters in making improve- 
 ments, 271 
 
 To drain soil in making improvements, 
 178 
 
 To license another to make improve- 
 ments, 661-670 
 
 To change natural condition of his land, 
 252 
 
 To lateral support for his land, 321, 323 
 
 To recover for injury to land, 193, 194 
 
 To be compensated for injury from pro- 
 jections, 308 
 
 To recover for injuries from a low chim- 
 ney, 305 
 
 To enjoin unpleasant noises and odors, 
 302 
 
 Whose land contains oil or gas, 282 
 
 To make excavations ; must care for 
 neighbor's lateral support, 321-335 
 
 To make excavations and let in the sea 
 272 
 
 To excavate soil over subterranean 
 stream, 258 
 
 When adjoining building falls, 327 
 
 To enjoin overhanging building, when, 
 336 
 
 To build party- wall higher, 340 
 
 For building over line by mistake and ad- 
 verse possession. 336 
 
 To reserve a strip around town-site, 455 
 
 Of access to street, 759 
 
 To soil of a highway, owns to the middle, 
 449 
 
 To prevent telephone lines in street, 814- 
 816 
 
 To obstruct right right of way and open- 
 ing another, 716 
 
 In a block reserved for a park, 706 
 
 To revoke consents made, 789 
 
 To establish boundary by agreement, 461- 
 510 
 
 To deny boundary-line after consenting 
 to a survey, 467 
 
 To authorize entry by license, 740 
 
 To exclude the public from way or beach, 
 683 
 
 To take away minerals, 284 
 
 To enter and take when a purchaser, 
 667 
 
 To enjoy light and air, 301 
 
 To light and air obstructed, 301 
 
 To build fence to shut off light and air 
 from neighbor, 341 
 
 To permit trees to overhang a public way, 
 318 
 
 To recover damages for destruction of 
 his trees, 820 
 
 To destroy line-trees and build to line, 
 314 
 
 By adverse use of successive owners, 686, 
 687 
 
 By adverse possession injured by pollu- 
 tion of stream, 209 
 
 Lost by interruption of adverse user by, 
 676-680 
 
 Acquired by dedication, 701-710 
 
 Acquired by prescription, 671-700 
 
 To take ice, 167 
 
612 
 
 INDEX. 
 
 References are to sections. 
 
 LANDOWNER Continued. 
 Rights of : 
 To exclude public from taking ice from 
 
 lake, 165 
 
 To enjoin diversion of water, 108 
 To seek benefits of stream, 371 
 To riparian rights in a stream near by, 51 
 To equal rights to waters with others, 262 
 To store water, when, 75 
 To sell rights in water-supply, 260 
 To collect water and allowing it to escape, 
 
 272, 274 
 To take water which would pass into 
 
 neighbor's land, 272 
 To beds of waters determined by laws of 
 
 state, 414 
 
 To dig well and draw water, 272 
 To water flowing over land, 174 
 To prevent accumulation of water, 178 
 To surface-water, 174 
 To protect land from surface-waters, 177 
 To drain surface-water into adjoining 
 
 pond, 179 
 To damages for flooding by obstruction 
 
 of surface-waters, 191, 192 
 To pollute underground waters, 263 
 To enjoin discharge of sewage polluting 
 
 river, 213 
 To percolating waters beneath surface, 
 
 252 
 To collect percolating water into stream, 
 
 254 
 To prevent water percolating from his 
 
 land, 254 
 
 To intercept natural underground per- 
 colations, 252, 254, 261 
 To drain natural percolations from 
 
 neighbor, 254 
 To maintain action for diversion of 
 
 underground water, when, 259 
 To drain his land though he grants 
 
 springs, 261 
 
 To drain waters into watercourses, 184 
 To make ditches for agricultural pur- 
 poses, 178 
 To a spring from which no stream flows, 
 
 254 
 
 To usa waters of spring, when, 254 
 To damages from overflow, when, 105 
 To erect barriers to avoid overflow, 136 
 To maintain action for obstruction of 
 
 viaduct, when, 51 
 To machinery erected by, 7 
 To bring action for replevin, when, 8 
 To maintain ejectment or trespass 
 
 against railroad, when, 735 
 
 Liability of: 
 
 For diverting underground stream, 275 
 Not for polluting water, when, 267 
 For polluting underground water, 266 
 For creating artificial underground cur- 
 rent from stream, 272 
 For causing artificial percolation, 272, 
 
 275 
 For sewage percolations into neighbors' 
 
 cellars, 267 
 For allowing water to collect, to injury 
 
 of neighbor, 269 
 
 For discharging collected waters, 178 
 For changing quantity and character of 
 water, 216 
 
 LANDOWNER Continued. 
 Liability of : 
 
 For increased flooding of land, caused by 
 trees, 136 
 
 Liable for injuries caused to opposite 
 shore, when, 137 
 
 For injury to another by protecting land 
 from water, 178 
 
 For intercepting source of spring, when, 
 275 
 
 For maliciously obstructing flow of 
 springs, 271 
 
 For taking all the waters of a creek, 172a 
 
 For poisoning his well, 266 
 
 For fouling neighbor's well, 266 
 
 For permitting gas to /escape and go to 
 waste, 282 
 
 For injury from escaping oil, 267 
 
 For obstructing a street, 709 
 
 For selling property laid out in streets, 
 703 
 
 For allowing dangerous substances to 
 remain upon his land, 263 
 
 For using land as a nuisance to neigh- 
 bor, 266 
 
 For injury to neighbor by extraordinary 
 use, 296 
 
 For leaving excavation open to excessive 
 weather, 332 
 
 For fall of party-wall on his neighbor, 
 when, 343 
 
 Of upper owner to pay expense of pre- 
 venting damage, 220 
 
 Not for injury to neighbor, when, 269 
 
 By contract to keep road private, 711 
 
 For preventing tenant from removing fix- 
 tures, 8 
 
 LANDSLIDES : 
 
 Effect on boundaries, 390 
 
 LATENT : 
 
 Ambiguity in a deed, 542 
 
 LATERAL SUPPORT: 
 
 (See also EASEMENTS ; EXCAVATIONS ; 
 
 PARTY- WALL.) 
 
 Common-law doctrine of, 324 
 Must prove sufficient, 323 
 Precautions to be taken, 333 
 Extra support not inherent to land, 325 
 Additional, how obtained, 325 
 Prescriptive right to extra support treated, 
 
 326 
 
 Eight to additional, must be acquired, 325 
 Kemoval of, may be agreed upon, 334 
 Bern oval of, by city or town, 334 
 Eemoval of, by railroad company is a tak- 
 ing of property, 333 
 Grantor of land may remove, 334 
 One not entitled to, from neighbor's mines, 
 
 334 
 
 Upheaval of neighbor's lands, 334 
 Right of, passes by conveyance, 325 
 Exists only so long as party-wall continues 
 
 to be sufficient, 339 
 Of ancient adjoining structures, 326 
 Must be provided for surface-soil, 334 
 Loss of, from excavation for sewer or 
 
 dredging, 334 
 
 Of adjoiuer's land and buildings, 321-335 
 Mutually granted and reserved, 325 
 
INDEX. 
 
 References are to sections. 
 
 LAW: 
 
 (See also LEGISLATURE ; ORDINANCES; 
 STATUTES.) 
 
 Fundamental knowledge of, required, 1 
 
 Questions of fact and law, 628 
 
 Object of, .is to ascertain intention of par- 
 ties, 572 
 
 Of U. S. supersede state statutes, when, 822 
 
 In regard to private grants, 33 
 
 Favors vesting of estates, 24 
 
 Relations of law and surveying, 361 
 
 Boundaries established by, 368, 401 
 
 Of boundaries on beaches, shores, and 
 banks, 371-420 
 
 Of boundaries upon navigable waters, 375 
 
 Of accretion in this country, 371-420 
 
 Corporations are subject to what, 870 
 
 Allows reasonable time for removal of fix- 
 tures, when, 8 
 
 Requires owner to exclude filth from neigh- 
 bor's land, when, 267 
 
 Protecting owners of buildings against in- 
 juries from excavations, 324 
 
 Efforts of, to quiet titles and make secure 
 rights of citizens, 491 
 
 Of adverse possession, 511-540 
 
 Pertaining to metals and minerals, 286 
 
 Will not permit a person to take another's 
 waters, when, 271 
 
 Of ownership of sea, 375, 376 
 
 Making it a crime to obstruct navigation 
 applies to permanent structures, 243 
 
 That logs shall not be floated down rivers 
 unless bound together, 243 
 
 In different states regarding surface- 
 waters, 176 
 
 Regarding subterranean waters, 251, 259 
 
 Pertaining to destruction of underground 
 waters, 251-280 
 
 Recognizes no correlative right in regard 
 to percolating waters, 252 
 
 Regarding artificial percolations, 274 
 
 Authorizing drainage of lake without ripa- 
 rian owners' consent is void, 54 
 
 Applicable to public roads is applicable to 
 streams, 238 
 
 Protecting shade-trees, 319 
 
 Impose restrictions on telegraph com- 
 panies, 823 
 
 Regarding company's right to protection 
 from disturbances of other companies, 295 
 
 Depriving water company of property with- 
 out process of law, 151 
 
 LEASE : 
 
 Description of premises in, 19 
 
 Not describing premises with certainty is 
 
 void, 19 
 
 Of accretions includes what, 378 
 Of a building held to convey land under 
 
 eaves and projections, 336 
 Of submerged lauds, 389 
 Of surplus water of a canal, 55 
 
 LEGISLATURE : 
 
 Controls all public ways, 756, 787, 812-824 
 
 Control over franchises, 862 
 
 Powers of: 
 
 To impair obligation of contracts, 765 
 To impair or destroy property rights, 765 
 To alter, amend, or repeal corporate 
 
 charter, 870-872, 879-885 
 To revoke franchises, 873, 882 
 
 LEGISLATURE Continued. 
 Powers of: 
 
 To impair franchise obligations, 868 
 
 To subject corporations to police power, 
 869 
 
 To dissolve a corporation by, 879-885 
 
 To enact laws affecting remedies, 870 
 
 To control highways, 792 
 
 To appropriate street for railway, 781 
 
 To grant right to occupy streets, 758 
 
 To authorize use of highway by railroad, 
 756 
 
 To permit a street-railway company to 
 use another's tracks, 785 
 
 To judge amount of owner's title to be 
 taken for public use, 731 
 
 To authorize erection and operation of 
 water-works, 141 
 
 To authorize extension of railroad, 794 
 
 To permit construction of steam railroad, 
 when, 708 ' 
 
 To grant monopoly to water company, 
 when, 147 
 
 To permit cities to take water from ponds 
 for domestic use, 54 
 
 To fix rates of water companies, 151 
 
 To confer right to condemn private prop- 
 erty, 143 
 
 To take private property for a landing, 
 244 
 
 To grant same privilege to two com- 
 panies, 787 
 
 To authorize erection of dam in a navi- 
 gable river, 143 
 
 To authorize improvement of navigable 
 rivers, 245 
 
 LIABILITY : 
 
 Fixed by negligence, 269 
 
 Not incurred by trespasser making neces- 
 sary survey, 354 
 
 Of persons holding under riparian owners, 
 52 
 
 For unnecessary detention of waters, 81 
 
 For diverting stream, 131 
 
 For diverting water into a watercourse, 75 
 
 For constructing embankment on a stream, 
 132 
 
 For carelessly erecting barrier of a stream, 
 62, 131, 137 
 
 For overflowing land, 85 
 
 Of grantee using water, 75 
 
 Of mill-owner injuring ice privileges, 166 
 
 Of subordinate mill-owner who reduces 
 water, 63 
 
 For collecting water to neighbor's injury, 
 269 
 
 For defective dam, 87 
 
 For injuries to dam, 89 
 
 Owner must build dam free from defects, 
 87 
 
 For refuse carried upon others' land, 217 
 
 For fouling underground streams, how de- 
 termined, 267 
 
 Of person corrupting neighbor's water, 263 
 
 Of sewer-owner when waters escape, 272 
 
 Of gas company when sewer-gas causes in- 
 jury, 264 
 
 Of landowner injuring neighbor by artificial 
 percolations, 272 
 
 Not incurred by any one person when sev- 
 eral caused pollution, 214 
 
 Of person committing public nuisance, 303 
 
614 
 
 INDEX. 
 
 'References are to sections. 
 
 LIABILITY Continued. 
 Of property owners for unhealthful dwell- 
 ing, 272 
 
 For defective construction of drain, 189 
 Of person driving logs in stream to injury 
 
 of riparian owner, 243 
 For destruction of line-trees, 314 
 Of persons causing injury by discharge of 
 
 electricity, 292 
 Of water company for projections above 
 
 grade of street, 145 
 Of a City: 
 
 For taking excess of water, 143 
 
 For negligent construction and operation 
 of works, 14 
 
 For defective plans for drainage, 188 
 
 For defective sewers, 215 
 
 For draining well by public works, 255 
 
 For damages to a well by erection of gas- 
 ; reservoir, 241 
 
 For injury from defective water-pipes, 
 145 
 
 For lowering underground waters, 255 
 
 For fouling a stream, 215 
 
 For obstructing street, 721 
 
 LICENSE : 
 
 Denned, 661 
 
 Distinguished from easement, 661 
 
 Distinguished from a franchise, 661-670, 
 786 
 
 Importance of, in construction work, 661 
 
 Consideration paid for, 663 
 
 Executory and executed, 661-669, 741 
 
 Revocable and irrevocable, 661-670 
 
 Revocable character of, 669, 741 
 
 Irrevocable by estoppel, 663 
 
 Exhausted by one act, 665 
 
 By acquiescence owner may have compen- 
 sation, 665 
 
 The subject of transfer, 668 
 
 Adverse possession by, 516 
 
 To make improvements on land, 661-670 
 
 To build and operate a railroad, 665, 741 
 
 To build water-works and sewers irrevo- 
 cable, 664 
 
 To enter and connect railroad tracks, 741 
 
 To enter premises and protect structures 
 during excavation, 324 
 
 Person making excavation must have li- 
 cense to enter neighbor's land, 324 
 
 To hunt and fish, 667 
 
 To maintain telegraph line by railroad 
 company, 818 
 
 To railroad to lay tracks, 740 
 
 Subways and pipe-lines built under, 661- 
 670, 844 
 
 To use party- wall, 666 
 
 To occupy streets not a franchise, 796 
 
 Railroad right of way acquired by, 661-670, 
 740 
 
 Of purchaser to enter and take, 667 
 
 By grantor to adjoining owner is not suffi- 
 cient to establish boundary, 503 
 
 LIFE ESTATE: 
 
 Defined and described, 16 
 
 Divided into two classes, 16 
 
 May be created in personal property, 16 
 
 LIGHT AND AIR: 
 
 (See also EASEMENT ; GEANTS ; PEESCBIP- 
 
 TION.) 
 Easements of, 307 
 
 LIGHT AND AIR Continued. 
 Instances of interference with, 302 
 Interfered with by boundary walls, 308 
 Obstructed and polluted, 301 
 Free, uninterrupted use incident to land, 
 
 301 
 
 Adverse possession of part of it, 307 
 Prescriptive right to, 326 
 Rights to, surrendered to adjoining owner, 
 o07 
 
 LIMITATIONS : 
 
 (See also ADVEESE POSSESSION ; ACQUIES- 
 CENCE; USEE; PEESCBIPTION.) 
 Right to be let alone in quiet possession. 
 
 511 
 
 Title established by, 521 
 Distinguished from prescription, 673 
 Applied to prescription, 672, 673 
 Presumptions under the statute of, 688 
 Statute of, gives title under adverse pos- 
 session, 534 
 
 Laud held under mistake, 517 
 Disabilities that prevent the running of 
 
 the statute, 688 
 
 Begins to operate as soon as first dis- 
 ability is removed, 688 
 
 LINE: 
 
 (See also BOUNDAEY-LINE ; DESCEIPTION j 
 
 SUEVEY.) 
 
 Definitely described, 366 
 
 Run not always line described, 363 
 
 Perpendicular to shore or bank, 383, 387- 
 
 390 
 How joined with monuments on streams, 
 
 387-390 
 
 Described with reference to street, 452 
 Of a street not changed by alterations, 445 
 Of pipe in streets, 841-860 
 
 LINEAR DISTANCES: 
 
 " More or less " applied to, 595 
 
 LINE-TREES : 
 
 Defined and described, 312 
 Liability for destruction of, 314 
 And fruit the common property of adjoin- 
 ing owners, 312 
 
 LOCAL AUTHORITIES : 
 
 Consent of, to occupy street, 846 
 
 LOCATION : 
 
 (See also EASEMENT ; RIGHT OF WAT.) 
 Defined and described, 752, 754 
 Of boundary in description, 366 
 Of boundary is conclusive, when, 492 
 Of land not designated in deed, 559 
 Of street railway fixed by statute, 794 
 And maintenance of cemeteries, 267 
 Of Steam Railroad : 
 
 Right of way, 734-747 
 
 Property in, 754 
 
 Secured by subscriptions, 748 
 
 Prior, prevails, 751 
 
 When only one can be made, 751 
 
 Before company was incorporated, 751 
 
 Completed by acts of directors, 754 
 
 Right of, misused, 754 
 
 Effect of change in, 748 
 
 Changes in, limited to necessities, 750 
 
 Change in, of right of way, 716 
 
INDEX. 
 
 6i 5 
 
 References are to sections. 
 
 LOSS: 
 
 Of lateral support, recovery for, 330 
 
 Of land by erosion or submergence, 371-390 
 
 LOTS: 
 
 (See also BOUNDABIES; HOUSE-LOTS; 
 
 LANDS. ) 
 
 Lateral support for, 321-335 
 Bordering a stream which shifted, 378 
 " Upon bank " of stream includes riparian 
 
 rights of grantor, 406 
 An island joined to it by accretion, 378 
 Bounded by margin of a street held to be 
 
 fixed and permanent, 445 
 Evidence that all were same width, 550 
 
 LOT NUMBERS: 
 
 Description by, 598 
 Mistake in, 549, 552 
 In conflict with other parts of description, 
 
 550 
 
 Conveyance by, and acreage wrong, 590 
 Reference to map for, 613 
 
 LOT-OWNER : 
 
 May grade it and prevent surface-water, 187 
 Attach conditions to consent to occupa- 
 tion of street, 788 
 Action by, for obstruction of street, 441 
 
 LOWLANDS : 
 
 Subdivision of, that are reclaimed, 383-390 
 
 LOW- WATER MARK: 
 
 Defined, 374 
 
 Of lakes and ponds, 421-430 
 
 Is boundary-line of navigable streams, 
 
 where, 401 
 Bights of the owners extend to, when, 383 
 
 LUMBER : 
 
 Piling of, in street is a nuisance, 306 
 
 MAGNETIC BEARING : 
 
 (See also AZIMUTHS ; BEARINGS ; COMPASS ; 
 
 COURSES; SURVEYS.) 
 Or meridian bearings, 604 
 Mistakes in recording, 541-570 
 
 MAGNETIC VARIATION : 
 
 Judicial notice of, 561 
 
 Error in, not to be corrected, 577 
 
 MAP OR PLAT : 
 
 (See also BOUNDARY; DEED; DESCRIPTION; 
 SURVEY.) 
 
 Official and otherwise, 624 
 
 Admissible as evidence, 542 
 
 Copies of, as evidence, 616 
 
 Reference to, in a description, 455, 549 
 
 Reference to official, 410 
 
 Referred to for lot numbers, 598 
 
 Description saved by reference to, 555 
 
 Reference to two maps, 555 
 
 Referred to when description is complete, 
 614 
 
 Treated as surplusage, 555 
 
 Monuments designated on, 599 
 
 Boundaries on, against monuments on land, 
 573 
 
 Controlled by monuments located, 574 
 
 Against field-notes, 600 
 
 Sufficient for registration, when, 752 
 
 Used to fix origin, date, limits of posses- 
 sion, 526 
 
 MAP OR Pi AT -Continued. 
 Use of scale on, 560 
 
 Of an estate or town-site should be review- 
 ed and revised, 454 
 Effect of garnishment, 454, 703, 709 
 Describing location of railroad, 752 
 Of railroad route is a nullity, when, 752 
 
 " MARGIN OF THE LAKE " : 
 
 Described, 423 
 
 MARK: 
 
 See HIGH- WATER and Low- WATER MARK, 
 374. 
 
 MARRIED WOMAN : 
 
 Her disability under law of limitations, 688 
 Her possession and that of her husband, 516 
 
 MAINS : 
 
 See PIPE-LINES ; SUBWAYS. 
 
 MEANDERED LINE: 
 
 Defined, 408-410 
 
 Import of words in a description, 408-410 
 
 Run by government surveyors, 410 
 
 Not always to determine boundaries, 410 
 
 Determines sinuosities of stream or body 
 
 of water, 410 
 
 Follows stream, when, 408-410 
 Description by, discarded, when, 409, 410 
 Title to land within, 414 
 
 MEANING : 
 
 " More or less " in a deed, 591 
 
 Of words " northerly," etc., 603, 604= 
 
 Of parties to a deed controls, 542 
 
 MEASUREMENTS : 
 
 To and from objects, 605-607 
 
 To or from a stream, 606 
 
 To a road or way, 606 
 
 To a building, 605 
 
 To adjoining tracts or structures, 607 
 
 When seashore is indented, 236 
 
 Custom of surveyors in making, 605-607 
 
 Custom to overrun, 597 
 
 Of lines against angles, 586 
 
 Of water for irrigation, 75 
 
 Of ditch is for the court, 75 
 
 MEASURE OF DAMAGES : 
 
 For lateral support destroyed, 330 
 
 For use of street for telegraph lines, 816 
 
 For injury to vested rights by electricity, 
 
 295 
 To abutting property by construction of 
 
 railroad, 721 
 
 To abutting owner for obstructing way, 762 
 For destruction of trees, 320 
 When gravel washes down on person's 
 
 land, 193 
 
 For injuries by washing of soil, 138 
 For cutting and taking ice, 169 
 For destroying ice-field, 169 
 For diversion of stream, 111 
 For diversion of surface-waters, 194 
 Due to surface-waters, 193 
 For crops destroyed by surface-waters, 193 
 For deflection of waters, 138 
 When an overflow is caused by a structure, 
 
 194 
 
 - For water-right destroyed, 223 
 For pollution of waters, 223 
 From defective subways, 850 
 
INDEX. 
 
 References are to sections. 
 
 MERGER OF ESTATES: 
 
 Easement extinguished by, 645 
 
 MERIDIANS : 
 
 True or magnetic, 604 
 Omitted in a deed, 546 
 
 METALS : 
 
 See LAND ; MINING ; MINERALS. 
 
 METES AND BOUNDS: 
 
 (See also BOUNDARIES ; COURSES AND 
 DISTANCES ; DESCRIPTION; MONUMENTS ; 
 SURVEYS.) 
 
 Description by, corrected by general ref- 
 erence, 549 
 
 " More or less," when land is described by. 
 593 
 
 MIDDLE LINE: 
 
 Of a stream described, 409-420 
 
 How connected with monuments on shore 
 
 387-390 
 Trouble to determine, 411 
 
 MILL-OWNER : 
 
 Whose right is infringed, 63, 102 
 Has cause of action for interrupting natu- 
 ral flow of stream, 85 
 Having subordinate right may reduce 
 
 water, when, 63 
 
 May prevent restoration of stream to origi- 
 nal channel, when, 107 
 Rights of, not changed by change in site, 
 
 75 
 
 Protected against unreasonable use, 84 
 Must not be deprived of water by taking 
 
 ice, 166 
 
 May not let water run to waste, 84 
 Must not overflow others' lands, 85 
 Cannot recover damages from logs to dam, 
 89 
 
 MILL-RIGHTS : 
 
 In a stream, 81-100 
 Determined by size of stream, 84 
 Infringed upon by opposite owner, 102 
 Passes by transfer of mill property, 77 
 To allow water to run to prevent freezing, 
 
 o4: 
 
 Water shut off to repair culvert, 116 
 Acquired by prescription limited, 681 
 MILLS : 
 
 Detention of waters for, 81-100 
 Built under a mere license, 662 
 Chemicals a source of pollution, 216 
 Injured by canal leakage, 272 
 Millstone detached is a fixture, 7 
 
 MINERALS: 
 
 Ownership of, 286 
 Gas and oil are, 283 
 
 Landowner's rights in, will be protected, 286 
 Right of owner of mineral land to take 
 away, 284 
 
 MINER'S INCH : 
 
 Defined and described, 75 
 MINES : 
 
 Conveyance of, 283 
 
 Right to work, up to limit of one's own 
 
 lands, 334 
 
 Support for ground-surface, 334 
 Adverse possession may be acquired of, 
 
 MINE S Continued. 
 Possession of, not a possession of surface, 
 
 527 
 Owner of, may pump water into a stream, 
 
 Refuse from, carried upon others' land, 217 
 
 MINISTERIAL ACTS : 
 
 May be delegated, 477 
 
 MISPLACED : 
 
 Monuments relocated, when, 577-580 
 
 MISSISSIPPI RIVER : 
 
 Land described on, 409 
 
 Laws of accretion applied to, 377, 431 
 
 MISTAKES : 
 
 In a description, 517, 541, 557, 570, 633 
 In boundary acquiesced in, 504 
 In stating quantity of land, 588-590 
 In spelling and grammar, 562 
 Possession under, is adverse, 517 
 Not to be c6rrected, when, 574 
 
 MONOPOLY : 
 
 Right to, a franchise, 867 
 Some lawfully granted, 869 
 Of streets for subways, 843, 848 
 Of street railway of its tracks, 785 
 MONUMENTS : 
 
 (See also ARTIFICIAL, AND NATURAL MONU- 
 MENTS ; BOUNDARIES ; STAKES AND 
 STONES; SURVEYS.) 
 Boundaries defined by, 366 
 Description by, holds, when, 449 
 What they include, 369 
 What is an ideal, 370 
 Expense of erecting permanent, 366 
 Natural features as, 401 
 Mountains, hills, hedges, and trees as, 369 
 Water described as, 371-420 
 Roads, streams, and ways, 582 
 Streets or non-navigable streams as, 449 
 Not found in streets, 449 
 Fences as such, 581 
 Adjoiners as, 583-585 
 Designated on map and on land, 599 
 On ground against those on map, 573 
 Wrongly described, 551 
 Control all other parts of a description, 
 
 571-585 
 
 Control courses and distances, 557 
 Original, control in government surveys, 
 
 579 
 
 Natural vs. artificial, 370 
 Selection 'of artificial, 370 
 Two named for same corner, 582 
 Measurements to and from, 605-607 
 Must be identified, 576 
 Evidence to identify, 580, 617-640 
 When they cannot be found, 573, 580 
 Lost or destroyed, 577-580 
 When destroyed to be relocated, 578 
 Relocation of, destroyed, 370 
 Burden of proving displacement, 577 
 Removal of not a breach of arbitration 
 
 bond, 463 
 
 Opinions as to location of, 627, 628 
 Location shown by parol evidence, 542 
 Center of, should be boundary, 402 
 Of abuttal is thread of road, way, or stream, 
 
 447 
 
INDEX. 
 
 617 
 
 'References are to sections. 
 
 MONUMENTS Continued. 
 
 On shore joined with inaccessible lines and 
 
 points, 383, 387-390 
 Parties bound by, erected before deed was 
 
 made, 499 
 
 MORE OR LESS : 
 
 Meaning of words, 591-597 
 
 A little more or less, 595 
 
 In a description of land, 588-597 
 
 In linear distances, 595 
 
 In trade or commerce, 596 
 
 MORTGAGE : 
 
 Of franchises, 874-878 
 
 MORTGAGOR : 
 
 Entitled to buildings on premises, when, 8 
 Cannot make good dedication as against 
 mortgagee, 704 
 
 MOUNDS : 
 
 Evidence of monuments, 580 
 
 MOUNTAIN : 
 
 Used as a monument, 369 
 MOUTH : 
 
 Of a stream, 406 
 MUNICIPALITY : 
 
 See CITY j COKPOEATION ; FRANCHISE. 
 
 MUNICIPAL AID : 
 
 A franchise, when, 866 
 
 NAME : 
 
 Land described by familiar name, 554 
 
 NATURAL GAS : 
 
 See GAS AND OIL. 
 
 NAVIGABILITY : 
 
 Does not depend upon improvements, 233 
 In fact forms navigability in law, 231 
 Bules in different states, 234 
 Of stream depends upon what, 232, 233 
 Of water is question for jury, 234 
 Existence of current is not the test, 234 
 
 NAVIGABLE STREAMS: 
 
 (See also BOUNDARIES ; EASEMENTS; 
 
 STREAMS; WATERS.) 
 Uses of, 232 
 
 Controlled by government, 375 
 Improvement in. affects property owner, 
 
 245 
 Must not be obstructed by pipes and cables, 
 
 242 
 
 Public entitle to free use of, 121, 168 
 Inland, are public property, 238 
 Lands submerged in, used by city, 241 
 Public may moor vessels in, for repairs, 244 
 Frozen, are public highways, 168 
 Bight to take ice subject of statute law, 164 
 The Niagara is, 234 
 
 NAVIGABLE WATERS: 
 
 Defined, 231, 236, 431 
 
 Bules governing the use of, 245 
 
 Controlled by state, 239, 241 
 
 Interstate, controlled by Federal Govern- 
 ment, when, 239, 241 
 
 Bight to improve, subject to government 
 regulation, 245 
 
 At common law, 164 
 
 Divided into two classes, 236 
 
 Banks and shores of, and their use, 244 
 
 Ob struction of, 242 
 
 NAVIGABLE WATERS Continued. 
 To float boats, logs, etc., loose not a crime, 
 
 243 
 
 Marsh-land not a part of, when, 234 
 Flocculent matter discharged into, a nui- 
 sance, 218 
 
 Telegraph lines across, 824 
 Cables stretched across must not obstruct 
 
 boats, 242 
 
 Public and private rights in, 231-245 
 Are public highways of common right, 231 
 Public may anchor on shores of, 244 
 NAVIGATION : 
 Line of, defined, how, 381 
 Not created, when, 232 
 Franchises held for uses of public, 376 
 Improvement of, superior to individual 
 
 rights, 241 
 
 Paramount to all other rights, 240 
 Seasons of, must occur regularly, 232, 243 
 Openings in the clear, 121 
 On stream should be valuable, 232 
 Waters need not be fit for at all times, 232, 
 
 243 
 Obstruction of: 
 
 Congress may remove, 242 
 
 By riparian owner's jetty, 242 
 
 By bridge, 116 
 
 By embankment in public river, 242 
 
 By sewage, 242 
 
 Criminal only when permanent, 243 
 
 NEGLIGENCE : 
 
 May fix liability, 269 
 
 An element in determining liability for 
 fouling underground waters, 267 
 
 In care of subways 849 
 
 In construction of water-works, 144 
 
 In erecting telegraph lines, 826 
 
 In laying and maintaining pipes, 144 
 
 To take precaution to prevent contact of 
 wires, 296 
 
 To permit branches to overhang a neigh- 
 bor's land, 316 
 
 To accumulate waters under pressure, 274 
 
 To carry lighted lantern near escaping gas, 
 284 ' 
 
 To leave projections in street above grade, 
 145 
 
 NEIGHBOR : 
 
 View and light obstructed by fence, 341 
 NEW CHANNEL: 
 
 Caused by sudden floods, 107 
 
 Stream diverted into, 105 
 
 Care must be taken in making, 105 
 
 Fixed by prescription, 107 
 NON-NAVIGABLE STREAM: 
 
 (See also NAVIGABLE STREAMS ; STREAMS ; 
 WATERS.) 
 
 Legislature may not declare it a public 
 highway, 233, 241 
 
 Called for as a boundary or monument, 449 
 
 Used by public to float logs, 243 
 NON-USER : 
 
 Easement lost by, 650 
 
 Of right dedicated, 707 
 
 Of land dedicated to public, 707 
 
 Of a right of way, 650 
 NORTH : 
 
 Meaning of word, 603, 604 
 
 And along a stream, 408 
 
6i8 
 
 INDEX. 
 
 References are to sections. 
 
 NOTICE : 
 
 Of appropriation of water, 75 
 
 Duly posted, not affected by second notice, 
 75 
 
 Of excavation should be given to neigh- 
 bor, 328 
 
 Owner must have, of adverse use, 528 
 
 NUISANCE : 
 
 (See also PUBLIC AND PRIVATE NUISANCE.) 
 Acts that create, 306 
 Public and private, 303 
 Public, restrained by public authority, 797 
 Unauthorized use of street, 797 
 Bridge unlawfully built over navigable 
 
 stream, 240 
 
 Unauthorized diversion of stream, 101 
 Bulkhead causing diversion of waters, 109 
 Pollution of water, 202-208 
 Dam causing overflow, 112 
 Water made muddy by construction, 218 
 A permanent structure for a private use 
 
 upon street is, 718 
 Use of steam in street, 799 
 Steam -rail road in street, 756 
 Unauthorized erection of wall, 797 
 Obstruction of street is, 306 
 Departure from authorized route of street 
 
 railway, 794 
 
 Occupation of street by railroad, 757 
 Bailroad structure is, when, 117, 121, 764 
 Deposits of materials which constitute 
 
 railroad embankment, 218 
 Snow from roof into street, 182 
 Projecting eaves, 181 
 Electric-light pole, 826 
 Telegraph pole may be, 812 
 Electricity is, when it causes public to 
 
 suffer, 292 
 That which deprives landowner from light 
 
 and air is a nuisance, 301 
 Lawful business creating smoke, 301 
 A manufacturing plant is, when, 302 
 Odors from gas-works, 305 
 Carrying on of an offensive trade, 307 
 Maintenance of excessive heat is, 302 
 Trees overhanging public way, 318 
 To permit branches to overhang a neigh- 
 bor's land, 316 
 Notice of should be given and a demand to 
 
 stop it, 316 
 
 Private, right to abate it, 316 
 May be abated by person injured, 316 
 Abatement of by omission justified, when, 
 
 316 
 
 In abating it, care should be taken, 316 
 Business merely impairing rental value of 
 
 property is not, 301 
 
 That which law authorizes cannot be, 721 
 Created by erection of structure by 
 
 grantor, 306 
 Excused by prescription, 671-700 
 
 OBJECTS : 
 
 Measurements to and from, 605-607 
 
 OBLIGATIONS : 
 
 (See also CONDITIONS ; CONTRACTS ; DEEDS ; 
 
 RIGHTS or WAY.) 
 
 Incident to right of way by condemnation, 
 733 
 
 To keep street unobstructed, 783 
 
 OBSTRUCTIONS : 
 
 During adverse user, 676-680 
 
 To adverse use, period of, 680 
 
 Of waters of streams, 81-100, 112 
 
 Of stream, whether lawful or not, jury de- 
 cides, 116 
 
 Of stream during erection of structure, 116 
 
 In streams used for floating logs, 243 
 
 Of surface-waters, 175, 177, 191 
 
 Of navigable waters, 242 
 
 Of navigation is criminal only when ob- 
 structions are permanent, 243 
 
 Of drainage an actionable wrong, 191 
 
 Of outlet to pond, 103 
 
 Of light, air, and view, 301, 341 
 
 OCCUPANT : 
 
 Special and general, defined, 32 
 Of land under adverse possession, 511-540, 
 671-700 
 
 OCCUPATION : 
 
 (See also ACQUIESCENCE ; POSSESSION : 
 
 USE.) 
 
 Land acquired by, 32, 372 
 No particular time for, after agreement as 
 
 to boundary, 500 
 By license is not acquiescence or proof of 
 
 agreement as to boundary, 503 
 Is a taking when it interferes with owner's 
 
 use, 353 
 
 ODORS : 
 
 See LIGHT AND AIR ; NUISANCES ; SMELLS ; 
 VAPORS. 
 
 OFFICE GRANT: 
 
 Defined, 33 
 
 OFFICIALS : 
 
 City not liable for acts of, 441 
 Liability for trespass of, 352 
 
 OIL: 
 
 See GAS AND OIL. 
 OLD CHANNEL: 
 
 Return of stream to, 133 
 
 OMISSIONS : 
 
 In a description, 550 
 
 From a description in a deed, 546 
 
 Supplied in deed, 552 
 
 Of parts in case of surplusage, 547 
 
 "ON" : 
 
 In a description, 363, 406 
 
 OPENINGS : 
 
 In party-wall, 342 
 
 OPERATIONS : 
 
 Object of, in engineering, 1 
 
 Engineering, sometimes require destruction 
 of property, 1 
 
 Not considered in promoting enterprises, 1 
 
 Telegraph line necessary to that of a rail- 
 road, 818 
 
 OPINIONS : 
 
 As evidence of boundaries, 627, 62-8 
 Of witnesses as to cause of ice-jam, 85 
 
 ORDINANCES : 
 
 To prevent smoke nuisance, 304 
 Declaring dense smoke a nuisance are un- 
 constitutional, when, 304 
 Prohibiting erection of awnings, etc., 718 
 
INDEX. 
 References are to sections. 
 
 619 
 
 ORIGINAL GRANTOR : 
 
 Reversion of street to, 456 
 
 OVERHANGING : 
 
 Trees and shrubs, 315-320 
 Wall may be enjoined, when, 336 
 Wall obstructing light and air, 308 
 
 OVERLAPPING : 
 
 Surveys, which prevails, 602 
 
 OWNER : 
 
 (See also ABUTTING and ADJOINING OWN- 
 ER ; LANDOWNER ; RIPARIAN OWNER.) 
 Estates of, in land, 11-30 
 Rights created by harbor-lines, 381 
 Maintaining encroaching walls is guilty of 
 
 trespass, 336 
 Not justified in killing to prevent trespass, 
 
 351 
 Each has proportionate share in new-made 
 
 land, 388 
 May establish boundaries by possession, 
 
 368 
 
 Must have notice of adverse possession, 528 
 Ignorance of, of adverse use, 528 
 Illegal resistance to molest a surveyor act- 
 ing under a court's order, 352 
 Depth to which he may excavate is deter- 
 mined, how, 324 
 Of an easement in water has no right to the 
 
 ice, 164 
 Of house to pay water-tax, instead of tenant, 
 
 150 
 Of flat lands may protect himself from 
 
 overflow, 136 
 
 Of land submerged and reappearing, 380 
 Of artificial mill-pond entitled to water and 
 ' ice, 166 
 
 Of irrigated lands not entitled to seepage, 75 
 Of railroad right of way may protect it from 
 
 surface-water, 136 
 
 Of reservoir guilty of trespass, when, 274 
 Of river-bed not liable for damages caused 
 
 by overflow, 144 
 
 Is entitled to damages for eaves-drip, 181 
 Of swamps may build canals to drain them, 
 
 184 
 
 Of water and ice of stream are the same, 167 
 Of water liable for unnecessary detention, 81 
 Of works fouling stream, is liable, 201 
 Of land formed by slow degrees, 372 
 Of accretion created artificially, 382 
 Of accretions upon lakes, 381 
 Liable for injuries from his roof, 181, 183 
 Of building which discharges roof-water 
 
 against another's wall, 181 
 Of building must provide it with proper 
 
 eaves-troughs, 181 
 Of buildings protected against injuries 
 
 from excavations, 324 
 
 Of a dam in a stream, his rights and lia- 
 bilities, 85-90 
 Overflow caused by growth of grass in 
 
 dam, 90 
 
 Liable for overflow of another's land, 85 
 Is liable if dam becomes choked with ice, 88 
 Is liable if dam obstructs stream unlaw- 
 fully, 90 
 
 OWNERSHIP : 
 
 Possession under claim of, is adverse, 314 
 Of property is not absolute, 2 
 
 OWNERSHIP Continued. 
 Of land determined by arbitration, when. 
 
 462 
 
 Of overlapping claims, 532 
 Of minerals and metals in land, 286 
 Of oil and gas in land, 281-290 
 Of streets and highways, 441-446 
 Of whole street, when, 443 
 Of streets when exclusively in city, 781 
 Of railroad right of way, 255, 732 
 Of trees, if a tenancy in common, 314 
 Of trees growing near boundary-line, 313 
 Of tree whose trunk is cut by dividing-liae, 
 
 312 
 
 Of roads bordering navigable streams 379 
 Of islands, 431 
 Of lands re-formed upon site washed away, 
 
 Of the soil under water, 238 
 
 Of shores, bed, or bottom of streams, 
 
 377-379, 401-420, 431 
 Of non-tidal navigable rivers, 238 
 Of lands bordering upon navigable streams, 
 
 Of navigable waters limited to high-water 
 
 mark, 164 
 To middle of navigable river subordinate 
 
 to easement of navigation, 238 
 
 OVERFLOW : 
 
 Of land, protection against, 131-140 
 Of flooded lands, how regarded, 136 
 Of surface-water rendering premises un- 
 wholesome, 193 
 
 PAPER TITLE : 
 
 Testimony of old inhabitants against, 621 
 
 PARCEL : 
 
 Means " portion," 554a 
 
 PAROL AGREEMENTS : 
 
 To settle disputed boundaries, 496 
 May give color of title, 533 
 
 PAROL EVIDENCE : 
 
 Is admissible, when, 542 
 
 To explain description in a deed, 541-570 
 
 To explain ambiguity in a description, 553 
 
 To identify tract, 553 
 
 Of what belonged to grantor, 552 
 
 Of intention of parties, 558, 572 
 
 To show a warranty of quantity, 589 
 
 Of maps referred to in a description, 613- 
 
 618 
 Cannot prove title to land by, 495 
 
 PART: 
 
 Described in terms of whole, 554a 
 
 PARTIES : 
 
 (See also ARBITRATION ; DEED ; SUIT.) 
 Encouraged to settle disputes among them- 
 selves, 491 
 
 Intention of, will prevail, 450, 572 
 Intention of, explained by parol evidence, 
 
 541-570 
 To an arbitration must be heard in presence 
 
 of each other, 481 
 Notified of hearing before arbitrator, 481 
 
 PARTICULAR : 
 
 Particular description vs. general, 548, 549 
 
620 
 
 INDEX. 
 
 References are to sections. 
 
 PARTNERSHIP : 
 
 Interest in real property, 35 
 
 PARTY- WALL : 
 
 (See also ABUTTING and ADJOINING OWN- 
 ER; LATERAL-SUPPORT WALL.) 
 Described, 337 
 Easoment acquired in, 644 
 By license merely, 666 
 May be built higher, when, 340 
 Windows cannot be placed in, 342 
 Overhanging neighbor's lot, 308 
 Agreements in regard to, 343 
 
 PATENT : 
 
 (See also GRANT; DEED; DESCRIPTION; 
 
 SURVEY.) 
 
 Ambiguity in a deed, 542 
 From state conveys land to section-line, 410 
 Of U. S. includes land under water, when, 
 
 414 
 
 PATENTEE : 
 
 (Of land ; see GRANTEE.) 
 
 PERCOLATING WATERS : 
 
 (See also GAS AND OIL; SUBTERRANEAN 
 and UNDERGROUND WATERS ; WATERS.) 
 Defined, 252 
 
 Distinguished from surface currents, 253 
 Are part of tiie earth, 252 
 Of a stream or spring, 110 
 Oil and gas compared to, 281 
 Artificial or enforced, 272 
 Of well takei. by city, 255 
 Law recognizes no correlative right in, 252 
 Prevented from going into neighbor's well, 
 
 254 
 
 Belong to landowner, 252, 272 
 May be intercepted by landowner, 252 
 May be drained from neighbor's laud, 254 
 Bight of landowner to divert, 254 
 Collected into stream by landowner, 254 
 Of sewage into cellars, 267 
 
 FERK>D : 
 
 Of existence of corporation, 879-883 
 
 Of acquiescence to establish boundary, 501 
 
 PERIOD OF LIMITATIONS : 
 
 (See ADVERSE POSSESSION ; LIMITATIONS ; 
 PRESCRIPTION.) 
 
 PERSONAL PROPERTY: 
 
 Includes what, 6 
 Identified with real property, 6 
 Wrongfully annexed to realty, 8 
 Of builder erecting structure with land- 
 owner's consent, 6 
 A building blown down is not, 8 
 An estate for life may be created in, 16 
 A testamentary disposition of, is a legacy, 
 
 OO * 
 
 PETROLEUM : 
 
 (See GAS AND OIL ; PERCOLATING WATERS.) 
 
 PHRASES AND CLAUSES : 
 
 In a description, 406-410, 447-452 ' 
 
 PIPE-LINES : 
 
 Property in, 847 
 Taxation of, 847, 886 
 Damages from, 850 
 
 PIPE-LINES Continued. 
 
 Are fixtures, when, 847 
 
 Temporary removal of, 846 
 
 Easement for an interest in land, 847 
 
 For conducting water, 141-160 
 
 Negligence in laying, 145 
 
 Bight to lay comes from whom, 841-860 
 
 Bights of way in, 841-860 
 
 In streets, without consent, 843-845 
 
 Monopoly for in streets, 843 
 
 PLAN, PLAT, OR PLOT : 
 
 (See FIELD-NOTES ; MAP ; SURVEY.) 
 
 POINTS OF COMPASS: 
 
 (See also BEARINGS; COURSES AND DIS- 
 TANCES; NORTH.) 
 How described, 603, 604 
 
 POLES : 
 
 Telegraph on streets and ways, 811-840 
 
 POLICE POWER: 
 
 Instances of, 869 
 
 Corporations subject to, 862, 871, 887 
 
 Franchises the subject of, 869 
 
 POLLUTION OF WATERS : 
 
 (See also PERCOLATING- AND SURFACE- 
 WATERS ; STREAMS ; WATERS ; WATER- 
 SUPPLY.) 
 
 Described, 202 
 
 Of streams and surface-water, 201-223 
 
 Sources of, 203 
 
 Of river by city sewage, 207 
 
 Of stream increased with growth of city 
 212 
 
 Of stream a nuisance, when, 202, 209 
 
 Necessary result of construction of sewer. 
 215 
 
 By discharge of sewers, 204 
 
 By household wastes, 267 
 
 Of stream by maintaining stables, 208 
 
 Of watercourses by factories, etc., 216 
 
 Of streams by mining operations, 217 
 
 Of stream by engineering operations, 207 
 
 By gas-works, 264 
 
 Of underground waters, 263 
 
 Of underground waters, amounting to nui- 
 sance, 264 
 
 By oil soaking into ground, 264 
 
 Of ground-waters, prevented by injunction, 
 270 
 
 Degree that will be enjoined, 206 
 
 Injunction or damages may be had for, 209 
 
 Chemicals are source of, 216 
 
 By refuse from sawmills and tanneries, 222 
 
 By refuse from gas-works, 221 
 
 Measure of damages for, 223 
 
 Of springs may be recovered for, 264 
 
 Of water-supply of a city is a nuisance, 212 
 
 Of water may be enjoined by water com- 
 pany, 209 
 
 Parties to suit, to prevent it, 213 
 
 Person injured not required to prevent it, 
 220 
 
 Caused by unavoidable accident, 267 
 
 Of stream by joint wrong-doers, 214 
 
 Of stream denied by riparian owner, 213 
 
 Contributed to, by plaintiff, 214 
 
 Of air, 301 
 
INDEX. 
 
 621 
 
 References are to sections. 
 
 PONDS : 
 
 (See also LAKES AND PONDS ; MILL-PONDS ; 
 
 STREAMS ; WATERS.) 
 Prescriptive rights acquired in, 681 
 Drainage of, 179 
 Of surface-waters may not be drained, 
 
 where, 179 
 
 Drained into watercourse, 179 
 Obstruction of outlet, 103 
 A burden to land, when, 179 
 
 POSSESSION : 
 
 (See also ADVERSE POSSESSION ; ADVERSE 
 
 USE : PRESCRIPTION.) 
 Elements of, to be adverse, 515-536, 500- 
 
 502, 675-689 
 Must be actual, 520 
 Must be continuous, 529 
 Under claim of ownership is adverse, 514 
 Interruption of, during adverse user, 676- 
 
 680 
 
 Under a mistake may be adverse, 517 
 Plat or survey used to fix origin, date, and 
 
 limits of, 526 
 Is a species of title and may become perfect 
 
 and indefeasible, 511-540, 514 
 Of land not necessarily possession of gas, 
 
 282 
 Of mining claim same as to acquire title to 
 
 land, 527 
 
 Of squatter will give him a right to dam- 
 ages, 85 
 Required to establish boundary, under 
 
 agreement and acquiescence, 501 
 By successive occupants taken together to 
 
 make prescriptive period, 686, 687 
 
 POST-ROADS : 
 
 Eailroads are, 821 
 
 POWERS : 
 
 Of corporations limited, 861-863 
 
 Of corporation to acquire and dispose of 
 
 real estate, 36 
 Of corporations to take property by devise, 
 
 QU 
 
 Conferred by legislature upon water com- 
 panies, 141-143 
 To construct water- works, authorizes what, 
 
 142 
 To supply water delegated by legislature, 
 
 146 
 
 Of water company to fix rents for water, 151 
 Of city to provide water-works, when, 141 
 Of city to provide for maintenance of fire- 
 engines, 142 
 
 To mortgage restricted in some states, 36 
 To provide expenses of town authorizes 
 
 what, 142 
 
 Of a railroad to purchase land, 733 
 Of surveyor as arbritrator restricted, 472 
 
 PRELIMINARY SURVEYS : 
 
 Trespass on land in making, 351-360 
 
 PREMISES : 
 
 (See also LAND; DEED; DESCRIPTION.) 
 Bounded by line of street, 451 
 Description of, in a lease, 19 
 Surrendered to landlord, 78 
 
 PRESCRIPTION : 
 
 (See also ADVERSE USER ; ADVERSE POSSES- 
 SION; LIMITATIONS.) 
 Denned, 32 
 
 Subject treated, 671-700 
 Presumption of a grant, 672-674 
 In acquiring easements, 642 
 Under statute of limitations, 672, 673 
 Importance of, in construction work, 671 
 Positive right of ownership, acquired by. 
 
 511 
 What amounts to interruption of user, 
 
 676-680 
 There must be privity of estate between 
 
 successive holders, 686, 687 
 What is privity of estate, 687 
 Possession of several holders united, when. 
 
 686, 687 
 
 PRESCRIPTIVE RIGHTS : 
 
 (See also EASEMENTS; INCORPOREAL 
 
 BIGHTS; BIGHTS OF WAY.) 
 How acquired, 671-680 
 Limited to adverse use, 681 
 Character of user to acquire, 689 
 Acquired by open, adverse, exclusive, and 
 
 continuous use, 675-682 
 Use must be notorious, 528 
 Burden of proof, 688 
 Cannot be acquired, when, 185 
 Against the state or the public, 534, 682-685 
 Acquired by public, 683 
 Impossible to apply doctrine of, when, 326 
 Of grantor belong to grantee, 686, 687 
 Allowed to ripen by trustee, 516 
 In right of way limited to adverse user, 681 
 Bight of way not acquired by, when, 716 
 Bailroad right of way acquired by, 535, 536, 
 
 685, 738 
 
 Shore of waters may be acquired by, 376 
 Over railways, 534-536, 684, 685 . 
 Over wild and unimproved land, 683 
 Acquired by riparian owners, 107 
 Not given to person diverting water by- 
 acquiescence of riparian owner, 107 
 New channel fixed by, 107 
 To drainage of surface-waters, 185 
 To cast surface-water upon lower land, 185 
 Of lower owner to dam surface-waters, 186 
 To maintain nuisance sustained by ad- 
 verse user, 212 
 To empty sewer into stream supplying 
 
 water to city cannot be acquired,J.212 
 To pollute stream is limited, 212 
 In underground waters, 262 
 Extra support not the basis of, 326 
 Does not entitle one to excavate, 106 
 Of light and air, 307 
 
 Servitude of light and air through win- 
 dows acquired, when, 341 
 Disabilities that prevent the acquisition 
 of, 688 
 
 PRESUMPTION : 
 
 That fixtures are abandoned may be re- 
 butted, 8 
 
 Of grant by prescription, 671-674 
 After long-continued possession, 674 
 Of abandonment of easement from non- 
 user, 650 
 That survey was made on ground, 578, 580 
 
622 
 
 INDEX. 
 
 References are to sections* 
 
 PRESSURE : 
 
 Collecting water under, 274 
 
 PRIOR APPROPRIATION OP 
 
 WATER : 
 
 (See also APPROPRIATION ; IBBIGATION; 
 RIPARIAN OWNEES ; STREAMS ; WATERS.) 
 History of, 73-75 
 In arid countries, 105 
 Bight acquired by, protected, 74 
 Irrigation rights by, 73 
 Date and amount determined, 75 
 Against riparian owner, 74* 
 Use must be limited, 73 
 By upper owner, to exclusion of others, 74 
 By miners, 74, 75 
 Gives how much, 75 
 Bight acquired is not affected by place of 
 
 application, 75 
 
 PRIOR APPROPRIATOR : 
 
 Bights acquired by, 75 
 
 Bights of, fixed by his appropriation, 75 
 
 Has vested right to use, 74 
 
 Bights of, may be lost, 76 
 
 Not entitled to all of water, 75 
 
 Cannot claim water after abandonment, 76 
 
 May not use water to injury of others, 75 
 
 PRIOR OCCUPATION: 
 
 Of right of way, rights attending, 827 
 Of streets for traffic, 784 
 Of street, in case of companies holding 
 franchises, 294 
 
 PRIVATE NUISANCE: 
 
 (See also NUISANCE.) 
 Is ground for civil proceedings, 303 
 Generally affects enjoyment of immovable 
 
 property, 303 
 Gas company creating unwholesome odors 
 
 etc., 305 
 
 Appropriation of waters is, when, 58 
 Party injured may bring suit to abate it, 
 
 316 
 
 PRIVATE PROPERTY: 
 
 (See also LANDS; PROPERTY; PUBLIC 
 
 PROPERTY.) 
 
 Must not be injured by public works, 190 
 Taking of, for public use, 721 
 May be taken by legislature for a landing, 
 
 Injured by accumulated water cast upon it, 
 
 Must not be interfered with in improving 
 navigable waters, 241 
 
 PRIVATE STREETS : 
 
 (See also HIGHWAYS: BOADS; STREETS; 
 
 WAYS.) 
 Boundaries on, 453 
 
 PRIVITY : 
 
 What is privity of estate, 687 
 
 PROFESSIONS : 
 
 Advice of legal and scientific, 361 
 
 PROFIT-A-PRENDRE : 
 
 In land, 641 
 
 PROJECTIONS : 
 
 Upon adjoining land, 336 
 
 PROOF : 
 
 Of boundaries, 611-640 
 
 Of agreement as to boundary, what is not 
 
 503 
 Of starting-point, 630, 631 
 
 PROPERTY : 
 
 (See also LAND; LANDOWNER; PERSONAL 
 
 and REAL ESTATE.) 
 Beal and personal, defined, 2, 3 
 In anything is not absolute, 2 
 First essential to an engineering enter- 
 prise, 1 
 
 Destruction of, required by engineering op- 
 erations, 1 
 
 Of city and country distinguished, 176 
 Sold on condition that it remain personal 
 
 property, 8 
 
 Limitation of corporations, 873 
 Described in general by boundaries, 361- 
 
 370 
 
 Boundary necessary to indicate limits, 522 
 Description of, should contain what, 362 
 Accurate survey of, not required, when, 383 
 Entry and destruction of, bv survevors 
 
 351 360 
 
 Word on map may forfeit man's title to, 454 
 Used for other than dedication purposes, 
 
 May not be held through agents, 34 
 
 In overhanging fruit of trees, 315 
 
 In line-trees, if not a tenancy in common 
 
 314 
 
 In streets and ways, 441-443 
 Streets under control of government, 442 
 In location of a railroad, 754 
 Taken by railroad in its right of way, 731 
 Bights incident to, on streams, 403 
 In sea and its shores, 375, 376 
 In beaches, shores, and banks, 375, 376 
 In maritime border is in state, 375-378 
 Between levee and water belongs to whom, 
 
 In land made by filling, 371, 381, 390 
 Submerged by sea belongs to whom, 377- 
 
 390 
 
 In streams is indivisible, 56 
 Subject to injuries from sewers, 188 
 In ice on pond or canal, 167 
 In surface-waters, 174 
 In pipe-lines, etc., 847 
 Failure to make claim or pay taxes evidence 
 
 of abandonment, 523 
 
 PROTECTION : 
 
 Of lands against floods, 131-140 
 Of property by riparian owner, 132 
 Against injuries from excavations, 324 
 
 PROTESTS : 
 
 Not sufficient to interrupt adverse user, 
 677-680 
 
 PUBLIC : 
 
 (See also CITY; GOVERNMENT; STATE.) 
 Shores, etc., held by sovereign for benefit 
 
 of, 376 
 May acquire right of way by adverse user, 
 
 683 
 
 No adverse use against, 534, 682-685 
 May acquire prescriptive rights, 683 
 Prescriptive rights against, 534, 682, 685 
 
INDEX. 
 References are to sections. 
 
 PUBLIC Continued. 
 
 Prescriptive rights by, over railways, 535, 
 685, 686 
 
 May not acquire a right to a landing by 
 prescription, 244 
 
 Has no general rights as against riparian 
 owners, 244 
 
 Benefiting by dedications, 702 
 
 Trustee for, cannot extinguish use of dedi- 
 cated property, 708 
 
 Use of streets, 812-840 
 
 Rights of: 
 
 To free use of navigable river, 121, 168 
 To navigable waters is paramount, 241 
 Of passage over all streams, 240 
 To travel on ice, 168 
 To appropriate ice, 168 
 To anchor on shores of navigable waters, 
 
 244 
 
 Of navigation may be restricted, 245 
 To use non-navigable river for floating 
 
 logs, 243 
 
 To bathe in sea, 237 
 In street are pre-eminent, 442 
 To use every part of pavement, 716 
 In land by dedication, 701-711 
 To use only part of dedicated street, 716 
 To be protected from monopolies, 861, 
 867 
 
 PUBLIC CALAMITY: 
 
 When is a surveyor's visit, 574 
 
 PUBLIC DUTIES : 
 
 Of corporations, 861-887 
 
 PUBLIC HIGHWAY : 
 
 Traveler using it entitled to protection, 232 
 Waters capable of floating logs, 232 
 Ditch constructed across, 717 
 
 PUBLIC IMPROVEMENTS : 
 
 Franchises for, 861-887 
 
 PUBLIC LANDS : 
 
 Bight of way over, for telegraph, 820 
 Conflict between field-notes and map, 600 
 PUBLIC NUISANCE: 
 
 (See also NUISANCE.) 
 Defined, 303 
 
 Affect community at large, 303 
 Whether acts are, depends upon locality, 303 
 Does not always create civil cause of action, 
 
 303 
 Actions of different families suffering 
 
 should be several, 303 
 
 Individual maintaining suit to abate it, 303 
 May also be private, 303 
 
 PUBLIC PROPERTY : 
 
 May not be acquired by adverse possession, 
 
 534, 682-685 
 
 Inland navigable rivers are, 238 
 PUBLIC USE : 
 
 (See also USB, and topic of the use.) 
 PUBLIC WAYS : 
 When occupation of, may be authorized, 721 
 
 PUBLIC WORKS : 
 
 (See also CONSTRUCTION WORK ; WORKS.) 
 Municipal aid for, 566 
 Must not injure private property, 190 
 Springs and wells drained by, 255 
 
 PUR AUTRE VIE: 
 
 Estate of, defined, 16 
 
 PURCHASER : 
 
 Adverse possession of, 516 
 
 License to enter and take, 667 
 
 Of railroad liable for injuries to abutting 
 
 owner, 759 
 
 Of land after railroad has been built, 763 
 Of unsafe ditch is liable for injuries 
 
 caused, 88 
 
 QUANTITY : 
 
 Of land in a description, 588-597 
 Representations as to, of land, 590 
 " More or less," 591-596 
 Variation in that named, 592 
 
 QUARRY : 
 
 Adverse possession of, 527 
 Owner of, not liable for cost of pumping 
 water, when, 272 
 
 RAILROAD : 
 
 (See also ELECTRIC RAILWAY ; RIGHTS OP 
 
 WAY ; STREET RAILWAY.) 
 Franchise of, includes what, 861-887 
 Land described by, 544 
 Above or below ground immaterial, as re- 
 gards taxation, 5 
 Benefits to land from, 763 
 Ownership of, 444 
 Terminals of, 753 
 
 Distinguished from street railway, 798 
 Location of, 743-747 
 Map filed is sufficient, when, 752 
 Elements to determine location of, 744 
 Discretion must be used in locating it, 745 
 Route not fixed by charter, 745 
 Are post-roads, 821 
 Bight of way, 731-765 
 Bight of way cultivated, 685 
 Bight of way along a river, 745 
 Abandonment forfeits rights of way, 755 
 Cannot grant exclusive right of way to 
 
 telegraph company, 821 
 Ties of, wrongfully annexed to right of 
 
 way, 8 
 
 Use of tracks for storing cars, 736 
 Subsurface, is street railroad, 787 
 Structure sustaining it is land, 5 
 Highway laid out across, 751 
 License to build and operate, 665 
 Liability for obstructing waters, 191 
 Obstructing and diverting surface-waters, 
 
 lt/1 
 
 Structure deflecting water, 137 
 Prescriptive rights over, 534-536, 684, 685 
 RAILROAD COMPANY : 
 
 (See also CORPORATIONS ; FRANCHISES.) 
 
 A gwast-public corporation, 744 
 
 Grants and charters of, are public fran- 
 chises, 731 
 
 Its failure to exercise grant, 754 
 
 Not a landowner, 255 
 
 Its track is land, 5 
 
 Telegraph-wires strung on its poles are 
 land, 5 
 
 Which receives donations, 748 
 
 Owes obligations to stockholders, 744 
 
 Adverse possession by, 536 
 
 Bight by location, 754 
 
 Prior location prevails, when, 751 
 
624 
 
 INDEX. 
 
 References are to sections. 
 
 RAILROAD COMPANY Continued. 
 Misusing its right of location, 754 
 Authority to make changes, 743 
 Its map a nullity, when, 752 
 Does not trespass when authorized to en- 
 ter, 740 
 
 Responds for injuries done by surveyors,353 
 Title to reclaimed lands not a fee, 424 
 Upheaval of adjoining lands, 334 
 Erecting depot in front of abutting owner's 
 
 land, 721 
 
 Eights of abutting owners assigned to, 759 
 Must not obstruct street, 783 
 Failing to repair street, 783 
 Required to build higher bridge, 721 
 Water-supply of, inferior to use of water 
 
 for mill, 81 
 
 Failure to build culvert in embankment, 192 
 Must keep culverts unobstructed, 119 
 Right of Way of : 
 Breach of contract for, 736 
 By estoppel, 732 
 
 Earth from one part used on another, 192 
 Ornamental trees growing in, 319 
 Trees need not be removed from, 742 
 Surface-water accumulating on, 191 
 For negligent construction, 192 
 If structure is a nuisance, 117 
 Compensation for telegraph upon, 825 
 Liability of: 
 For wrongful acts, 757, 758 
 To lot-owners for injuries, 721 
 As grantee, not liable for injuries due to 
 
 structures erected by grantor, 52 
 For injury from diverting a stream, 131 
 For injuries from overflow, 119, 136, 137 
 For obstructing stream, 116 
 Rights of : 
 Has property rights of natural person, 
 
 when, 732 
 
 Over its right of way, 731 
 To enter land for surveys, 755 
 To survey line of proposed road, 353 
 To locate road, 745 
 To land over which it has no right of 
 
 way, 732 
 
 To abandon right of way, 751, 754, 755 
 To clear obstructions from right of way, 
 
 742 
 To appropriate grass growing on its right 
 
 of way, 444 
 
 To use right of way for telegraph, 818 
 To grant exclusive right to telegraph 
 
 company, 819 
 Rights to accretions, 382 
 To occupy street without city's consent, 
 
 721 
 
 To operate its road by license, 740 
 To construct roads across streams, 113 
 To maintain dam on right of way, 112 
 To render stream dry, in constructing its 
 
 road, 255 
 
 To remove depot, 755 
 To transfer cause of injury to another's 
 
 land, 120 
 To reduce volume of stream by diversion, 
 
 102 
 To enjoin water company from taking 
 
 water, 63 
 To divert water for supply of locomotives, 
 
 63 
 To dig well and use water, 255 
 
 REAL ESTATE : 
 
 (See also LAND ; PEOPEETY.) 
 
 Defined, 3 
 
 How acquired, 31 
 
 May be held by any person, 34 
 
 Person who has an interest in, is a bene- 
 ficiary, when, 34 
 
 Title-deeds must' be in writing and under 
 seal, 469 
 
 Partnership's interest in, 35 
 
 Cannot be held by copartnership firm, 35 
 
 When purchased by partnership, title is 
 held by members, 35 
 
 REALTY : 
 
 Interest of corporation in, 36 
 
 Personal property wrongfully annexed to, 8 
 
 Distributable as personal property, when, 
 
 35 
 
 Steam-engine and boiler a part, when, 7 
 Indispensable articles become a part of, 7 
 
 REASONABLE CARE : 
 
 Must be exercised by riparian owner erect- 
 ing a barrier, 131 
 
 REASONABLENESS : 
 
 Of water rates, how determined, 150, 151 
 
 REASONABLE TIME : 
 
 In which to complete appropriation of 
 water, 75 
 
 REASONABLE USE : 
 
 (See also APPKOPBIATION ; DIVERSION; 
 
 RIPAEIAN OWNERS; STREAMS; USE; 
 
 WATERS.) 
 Of Waters: 
 
 Defined and described, 71, 75 
 Of a stream, 207 
 How determined, 59, 207 
 Depends upon what, 71, 82 
 Question of fact, 245 
 Must permit natural flow of stream, 84 
 Will not permit damming, 60 
 Instances of, 208 
 By manufacturers, 207 
 For stock purposes, 208 
 
 RECESSION OF WATERS : 
 
 (See also ACCRETION; RELICTION; RE- 
 CLAIMED and SUBMERGED LANDS.) 
 Land uncovered by, belongs to whom, 432 
 Boundary will follow, 377 
 
 RECLAMATION : 
 
 Of land from water, 371-400 
 
 Does not interfere with use of waters, 382 
 
 RECORDS : 
 
 Copies of, as evidence, 616 
 Destroyed or lost, 543 
 
 REFERENCE : 
 
 (See also DEEDS ; DESCRIPTION ; MAP ; 
 
 PLAN ; PLAT.) 
 
 To map or plan in a description, 454, 555 
 To old deeds in description, 363 
 To official plot, 410 
 
 RELICTION : 
 
 (See also ACCRETION ; ALLUVION ; RE- 
 CLAIMED LANDS.) 
 Defined, 424 
 
 Of land from water, 371-400 
 Boundaries of land acquired by, 363 
 
INDEX. 
 References are to sections. 
 
 625 
 
 REMAINDER : 
 
 (See also ESTATES-TAIL ; KEVEKSION.) 
 Vested and contingent, defined, 24 
 Vests iu remainderman during existence of 
 
 particular estate, 24 
 Of particular estate passes from grantor, 
 
 when, 24 
 
 REMEDIES : 
 
 For injury to lateral support, 329 
 - Legislation affecting, 870 
 Against corporations to enforce public 
 duties, 878 
 
 RENT : 
 
 Defined, 29 
 
 Classed with incorporeal hereditaments, 29 
 
 REPRESENTATIONS : 
 
 As to area of a conveyance, 590 
 
 RESERVATION : 
 
 In a deed of a right of way, 711 
 
 In a deed of an easement to light and air, 
 
 307 
 Of right to use certain drain, 719 
 
 RESTRICTIONS : 
 
 Imposed on use of streets for telegraph 
 
 lines, 813-840 
 On use of right of way, 736 
 
 REVERSION : 
 
 Not in grantor, 23 
 
 May be assigned or devised, 23 
 
 When is there curtesy or dower in, 23 
 REVOCATION : 
 
 Of a license, what constitutes, 661-670 
 
 Of license estopped, 663 
 
 Of submission to arbitration must be ex- 
 press, positive, and absolute, 467 
 
 Must be in writing if agreement for arbi- 
 tration be, 468 
 
 Of submission to arbitration, what will 
 work a, 468 
 
 RIGHTS : 
 
 (See also EASEMENTS ; INCORPOREAL 
 
 EIGHTS; LAND; PROPERTY EIGHTS.) 
 Legislature may not destroy, 765 
 Interference with, is trespass, 351-355 
 To fixtures, 7, 8 
 In various estates, 11-30 
 Of partnership in land, 35 
 Of a corporation in land, 36 
 In accretion depend upon what, 371-390 
 In line-trees, 311-320 
 Of riparian owners, 51-63 
 To appropriate waters, 51 63 
 In waters for irrigation, 71-77 
 To detain waters, 81-90 
 To operate mills by water, 81-90 
 To divert waters, 101-121 
 To protect land from streams, 131-138 
 To supply of water and ice, 141-169 
 Of water companies, 141-169 
 In surface-waters, 171-195 
 To pollute waters, 201-223 
 In navigable waters, 231-245 
 In underground waters, 251-275 
 To waters of wells and springs, 201-223, 
 
 251-275 
 
 To gas and oil, 281-286 
 Affected by electricity, 291-300 
 
 RIGHTS Continued. 
 To easement of light and air, 301-308 
 Defined by boundary-lines, 311-343 
 To lateral support, 311-343 
 Of surveyors when trespassers, 351-355 
 To reclaim and occupy submerged lands, 
 
 731-390 
 
 As established by boundaries, 361-460 
 Determined by arbitration, 46l"-490 
 Determined by agreement followed by 
 
 acquiescence. 491-505 
 By adverse possession, 511-536 
 Described by boundaries construed, 541- 
 
 562 
 
 In easements, 641-660 
 By license, 661-670 
 By prescription, 671-689 
 By dedication, 701-709 
 Eights of way, 711-851 
 Of telegraph and telephone companies, 291- 
 
 296, 811-834 
 
 Eailroad company, 731-765 
 In public streets or ways, 756-851 
 Of a street-railway company, 781-799 
 In subways, 841-851 
 In franchises, 861-890 
 Vested, may not be impaired, 868-878 
 Of corporation extinguished, 879-885 
 
 RIGHTS OF WAY : 
 
 (See also EASEMENTS ; LOCATION ; Name 
 
 of company using way.) 
 Land essential to, 1 
 First step for a structure, 1 
 In general, 711-721 
 Includes what, 731 
 How acquired, 732-740 
 Extent and mode of use, 651 
 Of railroad secured by purchase, 733, 736 
 On condition, 735 
 Of definite width, 716 
 Control of, by state or federal government, 
 
 873 
 
 Change of location, 716 
 
 Prior location and occupation of, 751, 827 , 
 Not fixed by charter, 745 
 The subject of a grant, 712, 735 
 Limited to uses contemplated, 715 
 Eestrictions on use of, 736 
 Grant of, for ditch, an easement, 77 
 Are appurtenant to land, when, 711, 714 
 Not extinguished by opening of another, 
 
 716 
 
 Interruption of, 676-680 
 Obstruction of, 650, 676-680, 717, 742 
 Encroachments upon, by abutting owners, 
 
 684 
 
 Encroached upon by a building, 717 
 Lost by non-user, 650 
 In common with grantee lost by grantor, 
 
 when, 717 
 
 By necessity over land, 714, 715 
 By condemnation, 731, 737, 751 
 By estoppel, not given, when, 732 
 By dedication and prescription, 535, 536, 
 
 685, 738 
 
 By prescription limited to use during pre- 
 scriptive period, 681 
 Over railways by prescription, 534-536, 684, 
 
 685 
 
 Acquired by the public by prescription, 683 
 By license only, 661-670 
 
626 
 
 INDEX. 
 
 References are to sections. 
 
 RIGHTS OF WAY Continued. 
 
 Used under license of landowner, 716 
 Across navigable waters, 824 
 Of telegraph or telephone company, 811-840 
 Of telegraph company on a railroad right of 
 
 way, 444 
 Exclusive rights not granted to telegraph 
 
 company, 819 
 
 In conduits and pipes, 841-860 
 Of canal in a public stream, 4*44 
 Of street railways, 781-800 
 Of railroad, 731-765 
 Over public park for railroad, 786 
 Abandonment of, of railroad, 751, 755 
 Ownership of abutting owner in railroad, 
 
 444 
 
 RINGS : 
 
 Of a tree or stump to tell age, 580 
 
 RIPARIAN OWNER: 
 
 (See also BANKS ; BOUNDAEIES ; DESCRIP- 
 TION ; SHOEES ; STREAMS ; SURVEYS ; 
 WATERS.) 
 
 Defined and described, 51, 55, 378 
 
 Appropriation of waters by, 57, 60 
 
 Against prior appropriator, 74 
 
 Use of waters by, against one who is not, 61 
 
 Kemedy of, for wrongfully taking water, 220 
 
 When a city is, it may take water, 143 
 
 Permitting city to erect works for water- 
 supply without protest, 143 
 
 Uses to which he may apply water cannot 
 be foreseen, 219 
 
 Need not own fee of land, 52 
 
 A canal company owning land along a 
 stream is, 51 
 
 Loss by erosion, 371-379 
 
 Lowlands, how divided between, 383 
 
 Not compensated for injuries incident to 
 navigation, 241 
 
 State may make improvements without 
 compensating, 413 
 
 Improving streams unfit for floating logs, 
 
 233 
 Injunction to prevent fouling of stream, 219 
 
 Failing to guard against injuries from pol- 
 lution of stream, 220 
 
 Cannot recover from upper owner if he 
 contributes tp pollution, 214 
 
 Denying that he polluted stream, 213 
 
 Must take stream subject to diminution 
 and corruption, when, 212 
 
 Purchasing land after nuisance is estab- 
 lished, 213 
 
 Rights of : 
 
 To enjoy waters of stream, .60, 71, 134, 201 
 To natural flow of water undiminished in 
 
 quantity or purity, 55, 57 
 To deal with stream, 134 
 To take as much water as is necessary, 71 
 To reasonable use of water, 56, 57, 71, 81. 
 
 83, 212 
 
 On navigable streams, 414 
 On lakes and ponds, 421-430 
 To high- or low-water mark, 374, 382, 
 
 401-414 
 
 To increase volume of water, 58 
 To his share of water for irrigation, 71 
 In waters, limited by what, 381 
 To water continues, how far, 84, 212 
 To enforce all vendor's rights in stream. 
 213 
 
 ! RIPARIAN OWNER Continued. 
 Rights of : 
 
 To limit stream on his property, 134 
 To acquire right to dam surface-waters, 
 
 60, 185 
 
 To dam new channel for protection dur- 
 ing freshets, 133 
 
 To obstruct stream, 60, 71, 81, 83-88 
 To build structure which will cause 
 
 floods, 132 
 To detain waters to a reasonable extent, 
 
 81-83 
 
 To detain water for log" floating, 243 
 Extend to low-water mark, when, 383 
 To pump water from stream to reservoir, 
 
 To pump water for irrigation, 75 
 
 To take water for industrial purposes, 63 
 
 To use stream for stock purposes, 208 
 
 To take ice, 162, 164 
 
 To ice of artificial pond, 166 
 
 To take ice to center of channel, 164 
 
 To prevent removal of ice from his land, 
 
 163 
 
 To advantages of drainage, 184 
 To drain his land into stream, 184 
 To drain surface-waters into stream, 205 
 To change method of discharging waters, 
 
 185 
 To enjoin discharge of sewage into river, 
 
 213 
 To prevent sewage discharge above his 
 
 mill, 220 
 
 To discharge large quantities of water, 84 
 To release and discharge waters if use 
 
 be reasonable, 84 
 To divert stream, 101-121 
 To divert water to supply wants, 110 
 To lesson water-supply by diversion, 102, 
 
 105, 110 
 To divert stream into new channel, 106, 
 
 115 
 To return stream to old channel, when. 
 
 54, 133 
 
 To interfere with watercourse, when, 116 
 To divert w r ater to protect land, 106 
 To divert waters to neighbor's injury, 
 
 132, 134 
 To maintain an action for wrongful 
 
 diversion, 108 
 To build bulkhead when change of stream 
 
 is threatened, 134 
 
 To protection from diversion or pollu- 
 tion of underground water, 259 
 To protect underground flow, 257 
 To protect property, 132 
 To protect his land from floods, 134, 136 
 To protect himself by embankments, 132, 
 
 134 
 To complain of others protecting their 
 
 land, 108, 135 
 
 To compensation for water taken, 143 
 To compensation for injuries that cannot 
 
 be foreseen, 219 
 
 Not limited to present modes of use, 219 
 To restrain contamination of waters, 213 
 To damages by pollution of stream, 223 
 To excavate bed of stream, 106 
 To deprive others of their water-rights, 
 
 84 
 To recover damages for invasion of 
 
 rights, 111, 204, 212 
 
INDEX. 
 References are to sections. 
 
 627 
 
 RIPARIAN OWNER Continued. 
 Rights of : 
 
 Cannot be taken without compensation, 
 211 
 
 Acquired by prescription, 107 
 
 Not lost by non-user, 107 
 
 In surface-waters, 175 
 
 To change flow of surface-waters, 205 
 
 To access to navigable river, 241 
 
 Destroyed in making unnavigable stream 
 navigable, 241 
 
 Against prior appropriator, 75 
 
 Determined by laws of state, 412 
 
 May not be destroyed by harbor-line, 381 
 
 To construct wharves, 414 
 
 To construct pier if navigation be not 
 obstructed, 381 
 
 To river-banks, 376 
 
 To alter bank or structure, 131 
 
 To recover land between high- and low- 
 water marks, 374, 414 
 
 To land under water, 383 
 
 To center of stream, when, 164, 406 
 
 To land under pond, 421, 422, 424 
 
 To bed of lake by law of accretion, 390 
 
 To accretions, 378-383, 406, 424 
 
 To accretion lost by dedication, 379 
 
 Filling to a stream, 381, 382 
 
 To new-made land, 383 
 
 To reclaim and occupy submerged lands, 
 389 
 
 To lease his interest in submerged lands. 
 
 389 
 
 , To property in islands, 378, 431, 432 
 May not : 
 
 Injure others, 132, 134, 382 
 
 Sell waters of stream, 62 
 
 Remove ice, when, 166 
 
 Use water-power to injury of lower mill- 
 owner, 58 
 
 Take so much ice as to deprive mill- 
 owner of water, 166 
 
 Discharge corrosive substances into 
 stream to injure machinery, 216 
 
 Injure others by his embankment, 132 
 
 Change channel, when, 106 
 
 Raise water by levee, 131 
 
 Be divested by subsequent survey and 
 grant, 406 
 
 Close up end of street, 379 
 Injured by : 
 
 Embankments or barriers of neighbors, 
 132, 134 
 
 Barrier in stream that interferes with 
 flow, 131, 133 
 
 Bridge obstructing stream, 112, 721 
 
 Jetty in a navigable river, 242 
 
 Filling up channel with sand, 138 
 
 Discharge of sewers, 205 
 
 Person driving logs in navigable stream, 
 243 
 
 Wood waste lodging on premises, 222 
 
 Diversion of waters by non-riparian own- 
 er, 61 
 
 Diversion of waters by tenants, not re- 
 sponsible, 52 
 
 Shipbuilder fastening lines upon his lands, 
 244 
 
 Mooring vessels on bank for repairs, 244 
 
 RIPARIAN RIGHTS : 
 
 Incident to land, 55 
 
 RIPARIAN RIGHTS Continued. 
 Incident to ownership, 51 
 Belong to persons entitled to possession, 53 
 Rest upon title to bank, 421 
 Are common and not divisible, 56 
 Vested in city, 382 
 Exercised by water-works company, when, 
 
 Grantees may not be deprived of, when, 424 
 Not affected by wrongful diversion, 108 
 May not be destroyed by state without 
 
 owner's consent, 54 
 Of landowner not destroyed by laying out 
 
 of street, 53 
 
 Not lost by non-user, 107 
 In navigable waters is question for courts, 
 
 231 
 
 RIVERS : 
 
 (See also BANK ; BED ; RIPARIAN OWNEBS ; 
 
 SHORES; STREAMS; WATERS.) 
 Defined, 235 
 
 Difference from a bank, 235 
 As boundaries, 377-379, 401-420 
 Harbor-line fixed arbitrarily, 381 
 Dividing line between bed and banks, 235 
 Water and bank correlative, 235 
 Includes what at flood, 374 
 Non-tidal, 235, 238 
 Has no shore if no tide, 374 
 Location of railroad along, 745 
 Flats divided among adjoining proprietors, 
 
 383 
 Soil of, incident to ownership of bank, 403 
 
 RIVER-BANK : 
 
 Defined, 235, 374 
 
 Are elevations which contain the river, 235 
 
 Limits of, are indefinite, 235 
 
 Limiting boundaries of land, 235 
 
 RIVER-BED : 
 
 Defined and described, 374 
 What are the limits of, 374 
 Is soil occupied by stream, 235 
 
 RIVULET : 
 
 Diversion of, 257 
 
 ROAD: 
 
 (See also HIGHWAY ; STREET : WAT.) 
 Ownership of those bordering streams, 379- 
 By prescription limited to actual user, 681 
 Future changes in, 366 
 A fixed monument, 582 
 Measurements to, 606 
 
 ROCK: 
 
 When a good monument, 370 
 
 ROOF-WATER : 
 
 Causing injury, 180 
 
 Must not injure neighbor, 18S 
 
 Discharged 'into alley, 182 
 
 Discharged into street, 182 
 
 Discharged against another's wall, 181 
 
 Right to discharge upon adjoining lands. 
 
 183 
 RULE : 
 
 Extending title of abutting owners to center 
 of road, 449 
 
 That middle of way is boundary not abso- 
 lute, 450 
 
628 
 
 INDEX. 
 
 References are to sections. 
 
 RULE! Continued 
 
 In regard to boundaries to natural and 
 artificial streams, 406 
 
 Regarding boundaries of accretions, 383 
 
 Of dividing accretions subject to modifica- 
 tion, 383 
 . To determine division-line of low lands, 383 
 
 Applied to divide to low and submerged 
 lands, 388 
 
 Governing the use of navigable waters, 245 
 
 For determining whether a particular thing 
 is a fixture, 7 
 
 Of water company must be reasonable, 150 
 
 RULE OF MEASUREMENT : 
 
 For measuring flow of water, 75 
 
 SEAL: 
 
 Necessary to a deed, 45 
 
 SEA-SHORE : 
 
 Land "at," "along," "by," "on," and 
 
 " with " the sea, 406 
 Control retained by government, 375 
 Division of, among riparian owners, 383 
 
 SECTION CORNERS : 
 
 How re-located, 631 
 
 Half-section corners need not be equidis- 
 tant, 580 
 
 SEEPAGE : 
 
 Owners of irrigated lands not entitled to,75 
 
 SERVIENT ESTATE : 
 
 (See also EASEMENT; ESTATES; LAND.) 
 Burdened with easement, 643 
 
 SERVITUDE : 
 
 (See also EASEMENTS ; ESTATES.) 
 Explained, 431 
 
 SETTLEMENT : 
 
 (See also AKBITEATION ; BOUNDARIES ; 
 
 SURVEYS.) 
 
 Of controversies encouraged by courts, 491 
 Of boundary-line, 365, 461-504 
 
 SEWAGE : 
 
 (See also POLLUTION: STREAMS; WATERS.) 
 Required to be purified, 210 
 Disposal of city's, 220 
 Disposal discharged into stream, 210 
 Amount discharged is limited, 212 
 Discharged in large quantities in river, 207 
 Discharge of, enjoined by landowners, 213 
 Discharged by right acquired by prescrip- 
 tion, 212 
 
 SEWERS : 
 
 In streets and ways, 841-860 
 
 License to build, irrevocable, 664 
 
 Over private land, right to repair, 848 
 
 Built and abandoned by city, 186 
 
 Public officers determining efficiency of 
 
 proposed, 188 
 
 Constructed in bed of stream, 101 
 Obstructing navigation a nuisance. 242 
 May be drained into river, when, 205 
 Discharged into canal, 205 
 Discharged into water not used for domes- 
 tic purposes, 207 
 Riparian owner may prevent its discharge 
 
 above his mill, 220 
 Discharge of, and injury to ferry, 208 
 
 SEWERS Continued. 
 
 Liability for draining wells and springs, 
 255 
 
 Polluting stream, 204 
 
 Faulty construction which caused pollu- 
 tion, 215 
 
 In which water is collected must be taken 
 care of, 272 
 
 Settlement of buildings from, liability, 334 
 
 SHIFTING : 
 
 Of boundaries, 371-400 
 
 SHORE : 
 
 (See also BANK; BEACH; BOUNDARY; 
 RIPARIAN OWNER ; SEASHORE; STREAM.) 
 In a description, 423 
 Defined as a boundary, 373 
 Boundary on, limited, 376 
 "At," "along," "by," "on," and "with" 
 
 the shore, 363, 406 
 Conveys same idea as "bank," 407 
 Formed by accretions, 383 
 As boundary changes, 372 
 Changes in length of, 383 
 Below high- water mark, 376 
 Of navigable waters and their use, 244 
 Public may anchor on shores of navigable 
 
 waters, 244 
 
 Determining ownership of, 371-420 
 Right to exclude public from, 683 
 
 SHORTAGE : 
 
 Of area considered, when, 588-590 
 Of area of house-lots, 598 
 
 SIDE : 
 
 Of a way, in a description, 452 
 Measurement to or from the side of a 
 structure, 605 
 
 SIGNS : 
 
 In a description, 560, 561 
 
 SITE: 
 
 First essential of an engineering enter- 
 prise, 1 
 
 SMOKE : 
 
 (See also GAS AND OIL; EASEMENTS; 
 
 LIGHT AND AIR.) 
 Injury from, must be visible, 301 
 Which is unwholesome, 301 
 Created by lawful business, 301 
 Degree permissible in the atmosphere, 301 
 Right to discharge it upon another's land, 
 
 307 
 Smoke ordinances are within exercise of 
 
 police power, when, 301 
 Ordinances to prevent nuisance, 304 
 
 SOIL: 
 
 Ownership of, in streets and ways, 379, 
 
 441-446, 454 
 Not included in grant of right of way, 452 
 
 SPELLING : 
 
 Poor spelling in a deed, 562 
 
 SQUARE FOOT: 
 
 Land purchased by, 590-597 
 
INDEX. 
 "References are to sections. 
 
 629 
 
 SPRINGS : 
 
 Drained by construction of public works, 
 
 255 
 From which no stream runs belongs to 
 
 owner of the land, 254 
 Eight to use waters of, 110 
 Bights of grantor and grantee, 261 
 May not be diverted to unknown subterra- 
 nean channels, 110 
 
 STAIRWAY : 
 
 License to use, 666 
 
 STAKES AND STONES : 
 
 (See also BOUNDAEIES ; MONUMENTS ; DE- 
 
 SCBIPTIONS ; SOBVEY.) 
 
 As a monument, 370 
 
 Location shown by parol evidence, 542 
 
 STARTING-POINT : 
 
 Denned, 367 
 
 In making survey, 630, 631 
 Must be definite, 367 
 Monument as a, 581 
 
 When natural objects are taken as monu- 
 ments, 369 
 Keferred to bodies of water, 405-410 
 
 STATE : 
 
 Laws of, determine boundaries, 412 
 
 Boundaries of, how determined, 365 
 
 May not destroy rights of riparian owner 
 without his consent, 54 
 
 Prescriptive rights against, 534, 682-685 
 
 Is original landowner, 375 
 
 Title to land added by filling a stream is ac- 
 quired from, 381 
 
 Owns accretion inside of harbor-line, when. 
 381 
 
 Owns submerged land, when, 377-390 
 
 Owns land gained by sudden receding of 
 waters, 424 
 
 Bounded by stream owns to the center, 239 
 
 Owns fee of street, when, 759 
 
 Proprietor of its maritime border, 375-378 
 
 Cannot grant exclusive rights, 819 
 
 Controls navigable waters within its bor- 
 ders, 239, 241, 375 
 
 May grant exclusive privileges to a tele- 
 phone company, 822 
 
 May require telephone lines to be placed 
 underground, 833 
 
 May not interfere with power of Congress 
 over interstate commerce, 833 
 
 STATUTES : 
 
 General statute limiting power to grant 
 
 franchises, 871 
 
 Affecting remedies of corporations, 870 
 Limiting amount of land a corporation may 
 
 hold, 42 
 Limiting power of foreign corporations to 
 
 acquire real estate, 36 
 Prohibiting state monopolies, 819 
 In regard to steam railroads on streets, 760 
 Making railroads post-roads, 821 
 Empowering cities to erect water-works 
 
 apply to what, 142 
 
 Making town liable for damages by main- 
 taining sewer, 255 
 
 Of the state superseded by U. S. laws, 822 
 STATUTE OF FRAUDS : 
 Kequires all instruments of conveyances to 
 be signed, 45 
 
 STATUTE OF LIMITATIONS : 
 
 See LIMITATIONS ; PRESCRIPTION. 
 STEAM RAILROAD : 
 
 In streets and highways, 756-760 
 Additional burden upon highways, 758 
 On streets, statutes regarding, 760 
 An improved means of travel, 758 
 STREAM : 
 
 (See also ACCRETIONS: KIPARIAN OWNERS; 
 
 WATERSCOURSE ; WATERS.) 
 Defined and described, 377 
 Artificially deepened is a watercourse, 172a 
 Spreading out is still a watercourse, 172a 
 Ownership of bed or bottom of, 377-379, 
 
 401-420 
 Accumulation in, may not be interfered 
 
 with, 382 
 
 Is private, when, 172a 
 Non-navigable, is private, 233 
 Navigable, when, 231, 232 
 Distinction between navigable and non- 
 navigable, 238 
 
 May be navigable without current, 234 
 Is legally navigable, when, 232, 234 
 Is public, if navigable, 231 
 Whether public highway is question for 
 
 jury, 243 
 'ublic 
 
 Public easement of passage over, is para- 
 mount, 240, 241 
 
 Should be navigable in its natural condi- 
 tion, 233 
 
 Made floatable artificially is not public, 233 
 Logs driven down, by use of dams, 243, 
 Becomes navigable if used twenty years as 
 
 public thoroughfare, 234 
 For floating logs and timber, 243 
 Eight to float logs in, acquired by adverse 
 
 use, 243 
 
 Diversion and obstruction of, 101-121 
 Cannot be diverted, when, 60 
 May be diverted for irrigation, 101 
 Diverted under a mere license, 662 
 May be diverted by riparian owner, 101-121, 
 
 132 
 Current of, may be limited by riparian 
 
 owner, 134 
 
 Excavated and deepened, 106 
 Unfit for floating logs, but improved by 
 
 riparian owners, 233 
 Diversion into new channel, 105, 115 
 Construction of sewer in bed of, 101 
 Eeturn of, to old channel, 133 
 Eesto ration to old channel prevented, 107 
 Deflection of, against lower owner, 137 
 Should not be deflected, 137 
 Current may not be deflected against 
 
 other's land, when, 382 
 Encroachments of, how prevented, 382 
 Natural flow increased by embankments, 
 
 191 
 
 Overflow by contraction of bridge, 117 
 Protection against, 131-140 
 Detention and obstruction of, 81-100 
 Obstruction of, not in violation of law, 
 
 when, 116 
 
 Eiparian owner may not obstruct, 71 
 Obstruction of bridges, etc., 112 
 Obstructed during erection of structure, 
 
 116 
 
 Injunction to restrain obstruction of, 118 
 Used for navigation obstructed, 121 
 
630 
 
 INDEX. 
 ^References are to sections. 
 
 STREAM Continued. 
 
 In confining, must not injure other land- 
 owners, 382 
 
 Bight to take ice from, depends upon what, 
 167 
 
 Determination of its capacity and uses, 84 
 
 Reasonable use of, 207 
 
 Used for stock purposes, when, 208 
 
 Bight to use acquired by prescription, 212 
 
 Prejudicial to health, 172a 
 
 Waters of, gradually disappearing and per- 
 colating through soil. 257 
 
 No distinction between surface and sub- 
 terranean, 259 
 
 Of great volume flowing through under- 
 ground courses, 259 
 
 May not be destroyed by landowner having 
 right to divert percolating waters, 254 
 
 Maliciously destroyed, 271 
 
 Pollution of, 201-223 
 
 Pollution of, a nuisance, 202, 209 
 
 Pollution of, increasing with growth of 
 city, 212 
 
 Instances in befouling, 218 
 
 Polluted by oil soaking into ground, 264 
 
 Polluted by refuse from sawmills and tan- 
 neries, 222 
 
 Polluted by stables, 208 
 
 Prescriptive right to pollute it is limited, 
 212 
 
 Supplying a city with pure water may not 
 be polluted, 143, 207 
 
 City is liable for fouling, 215 
 
 Contaminated by drainage of surface- 
 waters, 208 
 
 Waters fouled by operation of manufac- 
 tories, 201 
 
 Corrosive substances of, injuring riparian 
 owner's machinery, 216 
 
 Discolored by clay, 206 
 
 Usefulness destroyed by refuse being dis- 
 charged, 217 
 
 May be used for sewer purposes, how, 211 
 
 Sewer may be discharged into it, when, 205 
 
 Factory refuse discharged into, 208 
 
 Befuse deposited to make room for retain- 
 ihg-wall, 217 
 
 Must receive natural drainage, 184, 205 
 
 Pollution of, by joint wrong-doers, 214 
 
 Described as a boundary of land, 377-379, 
 401-420 
 
 Is boundary, though it move, 377 
 
 Becomes a boundary, when, 378 
 
 A fixed monument, 582 
 
 As a monument controls distance, 402 
 
 Forming borders of states, 239 
 
 Belongs to the older state, 239 
 
 Bule for settling boundary-lines of, 383 
 
 Bules applicable to natural and artificial, 
 406 
 
 Land "at," "along," "by," "on," and 
 " with " a stream, 406 
 
 Connecting lines across, 383, 387-390 
 
 Biparian owner has title to its center, 164 
 
 Center or middle of, described, 387 
 
 Middle line of, does not depend upon its 
 depth, 409 
 
 Determination of middle line of, 411 
 
 Middle of, lines perpendicular to, 387-390 
 
 Changes in, 366, 371-390 
 
 Value of, outweighs losses by erosion, 371 
 
 Sinuosities of natural, 377 
 
 STREAM Continued. 
 Loss of, by landowner, 371-390 
 Gain to laud by deposits, 378-390 
 Laws of accretion apply, when, 371-399 
 Measurements to or from, 606 
 Meander of, means what, 408-410 
 Bed and banks of, make up area of lot, 
 when, 411 
 
 STREET : 
 
 (See also ABUTTING OWNER; HIGHWAY; 
 BOAD; WAY.) 
 
 Property in, of abutting owoers, 442-446, 
 759 
 
 Though private, may belong to abutting 
 owners, 453 
 
 Beverts to original owner, when, 456 
 
 Grantee owns all, when, 443 
 
 City cannot order removal of soil from, 442 
 
 Superior rights in, determined by uses in- 
 cident to travel, 296 
 
 Subject to easements for travel, 2 
 
 Public rights in, are pre-eminent, 442 
 
 Unauthorized use of, 797 
 
 Bight to use for right of way, 782 
 
 Exclusive ownership in city, 781 
 
 Fee of, owned by state, 759 
 
 Priority of occupation, 784 
 
 Accretions to, 379 
 
 Accretion to, belongs to whom, 379 
 
 What is an additional burden on, 721, 756 T 
 781, 794, 814, 841 
 
 In making find improving, a city is the 
 agent of the state, 721 
 
 Diversion of, to other uses, 794 
 
 Proper use of, diverted, 759 
 
 Obligation to keep it unobstructed, 783 
 
 Obstruction of, a nuisance, 306 
 
 Obstructed by landowner, 709 
 
 Used to described land conveyed implies 
 dedication, 709 
 
 Dedicated to public cannot be closed by 
 dedicator, 705 
 
 City's rights in, acquired by dedication, 707 
 
 Discharge of roof-waters into, 182 
 
 Boundaries on, 421-460 
 
 Boundaries on private or unaccepted, 453 
 
 Intersection of, in boundaries, 452 
 
 What is the street-line, 605 
 
 Center line a boundary, 449 
 
 Called for as a boundary or monument, 449 
 
 Future changes of, 366 
 
 Boundary unaffected by changes, 445 
 
 Measurements to or from, 606 
 
 Extension of, must be in its original direc- 
 tion, 445 
 
 Area of, to be included, when, 411 
 
 Adoption of a plan for its grading, 188 
 
 Filled up and graded by city, 187 
 
 Graded so as to turn water upon abutting 
 land, 190 
 
 Surface-water discharged or detained by 
 grading of, 187 
 
 Grade mast not be changed by cable rail- 
 way, 789 
 
 Grade of, changed in constructing railroad, 
 761, 781 
 
 Street railway not an additional burden, 781 
 
 Consent of city to use, by railway, 787 
 
 Trolley lines upon, 798 
 
 Exclusive right of railway in, 785 
 
 Steam railroads in, 756-760 
 
INDEX. 
 References are to sections. 
 
 63 r 
 
 STREET Continued. 
 Steam railroad a burden upon, 758 
 Statutes regarding steam railroads on, 760 
 Determination of proper use by steam 
 
 railroad, 759 
 
 Telegraph lino a burden on, 814 
 Authority to occupy with telegraph line, 812 
 Telegraph lines not incident to travel, 794 
 Damages for use of, for telegraph line, 816 
 Of municipal corporation for telegraph 
 
 lines, 814-816 
 Subways iu, 841-860 
 Water- and sewer-pipes in streets by license, 
 
 664, 844 
 Monopoly of, for subways, 848 
 
 STREET RAILWAY : 
 
 (See also ELECTRIC RAILWAY ; RAILROAD ; 
 
 RIGHTS OF WAY.) 
 
 Charter confers corporate existence, 794 
 Distinguished from ordinary railroad, 798 
 Subsurface railway is, 787 
 Must act within authority of charter, 784 
 Conditions imposed upon, 787, 788 
 Location fixed by statute, 794 
 Exclusive right in street, 785 
 Extension of, authorized by legislature, 794 
 Construction of, in street, 793 
 Right of way of, 781-800 
 Consent of abutting owners, 790 
 Abutting owner may not enjoin use of 
 
 street for, 786 
 
 Not an additional burden upon streets, 781 
 Subway for, 846 
 Time limit for completion, 791 
 Not completing road on time, 791 
 Having priority of occupation, 784 
 Tracks may be used by another company, 
 
 when, 785 
 
 May prevent others from using tracks, 785 
 Single-track, may not be double-tracked, 
 
 when, 789 
 Completion delayed by city's interference, 
 
 791 
 
 Leaving authorized route, 794 
 Using streets without authority, 797 
 Confined to streets authorized to occupy, 
 
 797 . 
 Has right of way for cars over other 
 
 vehicles, 785 
 
 Franchise is granted by legislature, 796 
 Construction of, franchise, 795 
 Forfeiture of, franchise, 796 
 Prevented from leasing rights or fran- 
 chises, 785 
 
 What are proper uses, 721, 781, 814, 841-843 
 Operated for freight purposes, 781 
 Change of motive power, 799 
 City's requirements of, 788 
 Duties of, 793 
 
 Liable for defective structures, 794 
 Not liable for necessary damages, 794 
 To enjoin use of electricity, complainant 
 
 must have used care, 832 
 Character not changed by motive power, 799 
 
 STRIP: 
 
 Of land reserved about town-site, 455 
 STRUCTURE : 
 
 (See also BRIDGES; BUILDINGS; EASE- 
 MENTS ; LATERAL SUPPORT.) 
 Stability, preservation, etc., overlooked, 1 
 
 STRUCTURE Continued. 
 
 Care must be taken in protecting from 
 water, 131 
 
 Lateral support for, 321-335 
 
 Overhanging neighbor's land, 336 
 
 May not be placed between high- and low- 
 water mark, when, 242 
 
 Cost lessened by diversion of stream 113 
 114 
 
 Over stream must provide for ordinary 
 floods, 113 
 
 Built to carry off extraordinary floods, 117 
 
 Must be kept free of obstructions, 119 
 
 Of railroad company must be erected with 
 care, 192 
 
 Defectively built, 189 
 
 A nuisance, when, 117, 121 
 
 Erected by grantor and which creates a. 
 nuisance, 306 
 
 In stream not a nuisance, when, 242 
 
 Erected as monuments, 370 
 
 Utilized to describe estate, 370 
 
 STUMPS : 
 
 Cross-section of, to prove age, 580 
 
 SUBMERGED LANDS : 
 
 Reappearing, how divided, 883-390 
 
 The subject of salo, patent, and lease, 389 
 
 SUBMISSION : 
 
 (See also ACQUIESCENCE ; AGREEMENT ; 
 ARBITRATION ; BOUNDARIES ; SUR- 
 VEYOR.) 
 To arbitration may be revoked by change of 
 
 circumstances, 468 
 
 To arbitration under seal should be re- 
 voked by like instrument, 468 
 To arbitration must express intention to 
 submit and abide by award, 465 
 
 SUBSCRIPTIONS : 
 
 For public work, 748 
 
 SUBSURFACE CURRENTS: 
 
 (See also PERCOLATING and UNDERGROUND 
 
 WATERS.) 
 
 " Known " and " defined," 256 
 Flowing in defined channels, 256 
 Appropriation and use of, 258 
 Need not flow continuously, 259 
 Channel of, marked by plants, 259 
 Diverted by use of land for public purposes, 
 
 255 
 
 SUBTERRANEAN WATERS : 
 
 See PERCOLATING and UNDERGROUND WA- 
 TERS. 
 
 SUBWAYS : 
 
 (See also PIPE-LINES.) 
 Rights in, 841-860 
 For water, oil, gas, etc., 841-860 
 Negligence in care of, 849 
 In streets by act of legislature, 841-860 
 Use of streets for, 792, 795, 819, 848 
 Built under license, 844 
 For street railway, 846 
 
 SUFFERANCE, ESTATE AT: 
 
 See ESTATE-AT-SUFFERANCE, 21. 
 
 SUFFICIENCY : 
 
 Of a description, 543, 550, 544 
 
INDEX. 
 References are to sections. 
 
 SUPPORT : 
 
 See LATERAL SUPPORT; VERTICAL SUP- 
 PORT. 
 
 SURFACE-WATERS : 
 
 Defined and described, 171, 172a 
 A lake is more than, when, 172 
 Bights in, defined, 171-195 
 Bights of riparian owners in, 175 
 Distinguished from watercourses, 172, 173 
 Waters overflowing banks are, 173 
 Cease to be such, when, 171, 179 
 Have no banks or channels, 171 
 Control of, by cities, 186, 187 
 . Drainage of, 178 
 
 Discharged or detained by grading streets, 
 
 187 
 
 Injuring land by flooding street, 186 
 Flooding lot, 184 
 On private property from insufficiency of 
 
 sewer, 190 
 
 Distinguished from percolating waters, 253 
 Percolating through soil into cellar, 184, 189 
 Collected and cast upon lower land, 184, 185 
 Drained into adjoining pond, 179 
 Water gathered in reservoir is, when, 172 
 Accumulated on railroad right of way, 191 
 Flow of, may be changed, 184 , 
 Obstruction and diversion of, 120, 175-177, 
 
 191 
 
 Prevented from coming upon land, 177 
 Measure of damages due to, 193 
 Measure of damages for diversion of, 193, 
 
 194 
 
 Lower owner may dam them, when, 185 
 Drained into stream by riparian owner, 
 
 184, 205 
 
 Prescriptive rights to drainage of, 185 
 Pond of, may not be drained, where, 179 
 Pollution of, 201-223 
 
 Sand and silt not deleterious matter, 218 
 Drainage contaminating stream, 208 
 Carrying solid matter into mill-pond, 184 
 Water seeping through embankment, 173, 
 
 175 
 Discharged by culverts, 120 
 
 SURPLUSAGE : 
 
 In a description of land, 547 
 Map treated as, 555 
 
 SURRENDER : 
 
 Of corporate franchise, 879-881 
 
 SURROUNDING CIRCUMSTANCES : 
 
 May be shown, when, 542 
 
 SURVEY : 
 
 (See also AWARD : BOUNDARIES ; DEED ; 
 
 DESCRIPTION; MONUMENTS.) 
 Object of, to establish monuments, 494 
 Are to determine original line, 574-580 
 Should establish old landmarks, not upset 
 
 them, 574 
 Courses and distances are to determine 
 
 where original lines were run, 574-580 
 Presumption that it was made on ground, 
 
 578, 580 
 
 Line run not always line described, 363 
 Older and later, 602 
 Hearsay evidence of old, 620 
 Date of, determined from a tree, 580 
 Beferred to in a deed, 549 
 
 SURVEY Continued. 
 Admissible as evidence, 542 
 Starting-point in making, 630, 631 
 Methods of closing. 633 
 Closing line, how run, 547 
 Measurements to and from objects, 605-607 
 Custom to overrun measurements, 597 
 Dignity of calls, 632 
 Importance of calls in, 575 
 Direct and reverse calls in, 632 
 Calls that govern, 571-610 
 Calls for adjoiners, 583-585 
 Conflict between field-notes and map, 600 
 Bule as to what controls in descriptions, 
 
 573-576 
 
 Warranty as to acreage, 588-597 
 Includes bed and bank, when, 411 
 Excess, how distributed, 597 
 Which overlaps another, 602 
 Ideal monuments in a, 370 
 Monuments in government, 577 
 Should anticipate changes, 366, 371-390 
 Of lines joining monuments on shore with 
 
 inaccessible lines, 383, 387-390 
 Of middle of stream, 411 
 Impracticable to determine center line of 
 
 stream, 404 
 "To," "by," "at," "along," "on," "with," 
 
 "up," or "down" a stream, 405-410 
 Trespass in making, 351-360 
 Court may give right to enter and make, 
 
 May be authorized by state without com- 
 pensation to landowners, 353 
 Establishing a boundary may be waived by 
 
 both parties, 467 
 
 Agreed to may not be denied, 467 
 May estop party from disputing line, 499 
 By adjoining owners, without any agree- 
 ment, creates no estoppel, 499 
 
 SURVEYING : 
 
 Not an exact science, 383 
 
 Not purely a science of mathematics, 574 
 
 Belation of law to, 361 
 
 Value of, varies, 383, 494 
 
 Elements of error in, 571 
 
 Value of checks in, 587 
 
 SURVEYOR : 
 
 (See also ARBITRATOR.) 
 His advice vs. a lawyer's, 361 
 His views and the court's, 587 
 Questions for his determination, 541 
 Duties, what are they, 362, 512 
 Sources of annoyance to, 370 
 His visit a public calamity, when, 574 
 His duty to locate monuments, 574 
 Must anticipate changes iu topography, 366 
 Deals with description, 367 
 Notes and descriptions of, incorporated in 
 
 grant, 404 
 
 Property described by lines run, 404 
 Certificates of maps and notes, 616-618 
 Value of Ms testimony, 611-613, 626-633 
 Knowledge acquired while surveying, 626- 
 
 628 
 
 Opinions, when possessed of the facts, 628 
 Opinions as evidence, 627, 628 
 Opinions with jurymen, 611-633 
 Determinations of, us. old inhabitant's tes- 
 timony, 619-621 
 
INDEX. 
 References are to sections. 
 
 633 
 
 SURVEYOR Continued. 
 Judgment, discretion, and ability of, 
 
 sought, 477 
 
 Operations on land, 446 
 Determination of boundary-line by, 461-464 
 Called upon to determine boundary-lines 
 
 that are already settled, 494 
 Few, informed of rules of law with regard 
 
 to boundaries, 404 
 Cognizance of client's rights, 512 
 Should include all that legally and properly 
 
 belongs to an estate, 512 
 May include bed and banks of stream in 
 
 survey, when, 411 
 May not change a monument, 352 
 Monument satisfactory to, 370 
 Trespass by, on lands, 351-360 
 Is liable for trespass, 352 
 Unauthorized person may not justify his 
 
 trespass, 352 
 
 May enter upon land, when, 755 
 Trespass by, when under orders of govern- 
 ment, 353-355 
 As an Arbitrator : 
 
 Powers are restricted, 472, 478 
 
 Must not exceed powers, 474 
 
 Effect of mistakes of, 473 
 
 Must act with others, 480 
 
 Compensation of, 482 
 
 Looks to submission for his duties and 
 power, 471 
 
 SYMBOLS : 
 
 Used in a description, 560, 561 
 
 TACKING : 
 
 Of adverse possession of several holders, 
 
 686, 687 
 Of husband's and widow's possession, 687 
 
 TAXATION : 
 
 Of franchises and other property, 886 
 Of corporate franchises, 865, 886 
 Exemption from, a franchise, 865, 876 
 Sale of franchise of exemption, 876 
 Of incorporeal property, 847 
 Of pipe-lines, 847, 865, 886 
 Of telegraph companies, 834 
 
 TAXES : 
 
 Payment of, evidence of an adverse claim, 
 523 
 
 TELEGRAPH AND TELEPHONE 
 COMPANIES : 
 
 (See also ELECTRICITY ; ELECTRIC and 
 STREET RAILWAYS ; EIGHTS OF WAY.) 
 
 Conditions imposed upon, 823 
 
 Bights of way, 811-840 
 
 Can contract for right of way, 819 
 
 Eight of way over public lands and military 
 roads, 820 
 
 Expending money on strength of prior 
 right of way, 831 
 
 Lines on railroad right of way, rights of 
 abutting owner, 444 
 
 Eight of way lost, 818 
 
 State cannot grant exclusive rights to, 819 
 
 Exclusive privileges granted by state, when, 
 822 
 
 Franchises of, 861-887 
 
 Charter to erect lines and permit their op- 
 eration, 816, 817 
 
 TELEGRAPH AND TELEPHONE 
 
 COMPANIES Continued. 
 Franchises to use streets are subservient 
 
 to rights of public, 296 
 Eight to place poles along street, 822 
 Grant to run wires through streets, 825 
 Wires must not obstruct travel, 826 
 Subways in streets, 841-860 
 Wires over one's laud, 817 
 Injuries from lines and poles, 817 
 Cutting shade-trees, 817 
 Licensed to clip branches, 319 
 Guilty of negligence,- 826 
 Liability for injuries, 817 
 Need not provide against unexpected 
 
 storms, 826 
 
 Abandoning its property, 826 
 Taxed by state, 834 
 
 TELEGRAPH AND TELEPHONE 
 LINES : 
 
 Circuits, and electric-railway lines, 831 
 Using earth as return circuit, 831 
 Belief for, from earth current, 296 
 Terminal poles used to carry, 830 
 Injured by electric-railway system, 296, 830 
 Entitled to protection against use of street 
 
 by other companies, 295 
 To enjoin interference with the company 
 
 must have used due care, 832 
 Must be protected by new devices, 296 
 New means of neutralizing effects of other 
 
 currents must be adopted, when, 295 
 In contact with those of street railway, 829 
 Injured by subsequent electric-railway 
 
 company, 830 
 
 Interference by induction, 828 
 A burden on streets, 814, 818 
 Eemoved from street by the court, 814-816 
 Are easements in land, 818 
 License to maintain, 818 
 Neglect in erecting, 826 
 Manner of construction determined by 
 
 state, 834 
 
 Are avenues of interstate commerce, 833 
 On state roads, 822 
 
 May occupy railroad right of way, 818 
 On street gives abutting right to damages, 
 
 815 
 
 Measure of damages for use of street for, 816 
 Across navigable waters, 824 
 Controlled by Federal Government, 833 
 
 TELEGRAPH POLES : 
 
 On streets and ways, 811-840 
 
 TELEPHONE : 
 
 See ELECTRICITY; TELEGRAPH, etc. 
 
 TEN ANCY-IN- COMMON : 
 
 Denned and described, 25, 31.4 
 
 No right of survivorship, 25 
 
 Tenants may 'hold by different title, 25 
 
 Tenant may alienate his share, 25 
 
 Each tenant has right to entire, not sole, 
 
 possession of estate, 25 
 Adverse possession vs. cotenants, 516 
 In line-trees, 311-314 
 
 TENANT : 
 
 Cannot deny landlord's title, 21 
 Prevented by landowner from removing 
 fixtures, 8 
 
634 
 
 INDEX. 
 References are to sections. 
 
 TENANT Continued. 
 His possession not adverse to landlord, 516 
 Adverse possession under a void lease, 516 
 Must terminate tenancy, etc., to hold ad- 
 verse to owner, 516 
 Going upon premises after termination of 
 
 lease, is a trespasser, 8 
 Under estate at will has no interest to 
 convey, 20 
 
 TENANT FOR LIFE : 
 
 Jlights of, 16 
 
 Adverse possession of, 516 
 May not convey more than his own inter- 
 est, 16 
 
 TENEMENTS : 
 Defined, 3 
 
 TERMINI : 
 
 Of railroad route, 745-750 
 
 TESTIMONY : 
 
 (See also DECEASED PEESON; DECLARA- 
 TION ; EVIDENCE ; HEARSAY ; PAROL 
 PROOF; SURVEYOR.) 
 Of old inhabitants, as to boundaries, 619- 
 
 621, 625-629 
 Of architect as to cost of party- wall, 343 
 
 THREAD OF STREAM : 
 
 As a boundary described, 409-420 
 
 TIDE-LANDS : 
 
 Title to, is in states, 389, 407 
 
 TIMBER : 
 
 License of purchaser to enter and take, 667 
 Streams for floating, 243 
 
 TIME: 
 
 Of appropriation of water, 75 
 
 Eequired to occupy and acquiesce, 501 
 
 In which city may purchase a franchise, 
 
 142 
 TITLE TO LAND : 
 
 (See also DEED; DESCRIPTION; ESTATE; 
 
 LAND; OWNERSHIP; PROPERTY.) 
 Acquired without consent of former owner, 
 
 32 
 Acquired Avith assistance of former owner, 
 
 33 
 
 Inures to a person by estoppel, when, 32 
 Limited to intention expressed in deed, 450 
 Of deed delivered to third person, 45 
 Of deed passes from grantor to grantee 
 
 when delivery is made, 45 
 Cannot be established by parol evidence, 
 
 495 
 
 To an infinitesimal strip of land, 455 
 Interference of, explained, 532 
 To street in city, 319 
 To street vests in abutting owner, 456 
 Efforts of courts to quiet and secure, 491 
 To land affected by adverse possession, 
 
 511-540 
 By adverse possession not affected, when, 
 
 495 
 
 Established by limitation, 521 
 Acquired when possession held by mis- 
 take, 517 
 
 Does not pass from dedicator, 703 
 Of riparian owners fixed by laws of state, 
 
 412 
 
 TITLE TO LAND Continued. 
 Under tide-waters, 236, 376, 389, 414 
 To bed of lake, 421 
 
 To an island does not include flats, 421 
 To accretions, 378-383 
 Added by filling, 381 
 To alluvion vests in whom, 378-383 
 Of upland owner in low lands, 376-390 
 Submerged, when it reappears, 380, 412 
 To ice is in person entitled to use of water,. 
 167 
 
 "TO THE BANK, BEACH, OR 
 SHORE": 
 
 In a description of land, 405-410 
 
 "TO THE TOP OF": 
 
 "To the top of" or "along the top of" a 
 bank, etc., 407-410 
 
 "TO' THE WAY": 
 
 In a description, 451 
 
 TOWN: 
 
 See CITY ; VILLAGE. 
 
 TOWNSHIP LINES: 
 
 Ascertained how, 378 
 
 TOWN-SITES : 
 
 Garnishments of maps of, 454 
 
 Map of. should be reviewed and revised, 454 
 
 Narrow strip around about, reserved, 455 
 
 TRADE : 
 
 " More or less " in, 596 
 
 TRANSFER : 
 
 Of franchise, 874-878 
 License the subject of, 668 
 
 TRANSPORTATION : 
 
 Of water, gas, and other fluids, 71-80, 101- 
 130, 251-300, 841-860 . 
 
 TRANSPORTATION COMPANIES : 
 
 Franchises of, 861-887, 871 
 
 TRAVEL : 
 
 See HIGHWAYS ; ICE ; NAVIGABLE WATERS ; 
 STREAMS; STREETS. 
 
 TREES : 
 
 (See also BOUNDARY ; MONUMENTS ; EIGHTS 
 OF WAY.) 
 
 As boundaries, 611, 612 
 
 Not desirable as monuments, 370 
 
 Identity of corner trees, 631 
 
 Means of locating, 369 
 
 Cross-section of, to prove age, 580 
 
 To protect banks, 382 
 
 Planted upon boundary-line, 312 
 
 Ownership of, near boundary-line, 313, 315 
 
 Timber trees cut from forests, 320 
 
 Growing in railroad company's right of way, 
 319 
 
 Growing in public ways, 319 
 
 Overhanging public way, 318 
 
 Whose overhanging branches are a nui- 
 sance, 316 
 
 Maintenance and destruction of, 314 
 
 Cutting for telegraph lines, 817 
 
 Destruction of, by gas, 849 
 
 Measure of damages for destruction of, 320 
 
INDEX. 
 
 635 
 
 References are to sections. 
 
 TRESPASS : 
 
 (See also ADJOINING OWNEB; BOUNDARY; 
 LAKD; SURVEYOR.) 
 
 Defined, 351, 353 
 
 Does not depend upon intention or mis- 
 take, 351 
 
 By one who aids, advises, or assents, 351 
 
 License of purchaser to enter and take, 667 
 
 Not excused by showing plaintiff a tres- 
 passer, 351 
 
 Award may be a defense to an action of, 462 
 
 Not authorized by custom, 441 
 
 Act of employer or servant, 351 
 
 By surveyors on land, 351-360 
 
 By surveyor under instruction of stranger, 
 352 
 
 Trespasser liable though acting under in- 
 structions of another, 351 
 
 Court may grant leave to enter and survey, 
 353 
 
 County liable for that of its officers, 352 
 
 Encroaching wall is, 336 
 
 To make openings in party-wall, 342 
 
 By gunning and hunting, 352 
 
 Balloouists liable for acts of trespassers, 
 351 
 
 Upon narrow strip of land, 455 
 
 Prescriptive rights under, 671-700 
 
 TRUSTEE : 
 
 Adverse possession by, 516 
 
 May take fee without word " heirs," 14 
 
 May dedicate trust lands, 704 
 
 UNDERGROUND CONDUITS : 
 
 Eights in, 841-860 
 
 UNDERGROUND CURRENTS : 
 
 Compared with watercourses, 259 
 May not be diverted, 259 
 Diversion and obstruction of, 275 
 Method of determining their courses, 256 
 
 UNDERGROUND WATERS : 
 
 (See also PERCOLATING WATERS.) 
 Grant of right to, 260 
 Prescriptive rights in, 262 
 Pollution of, 263 
 Destroyed for some motive, 271 
 
 UNDERGROUND WAYS: 
 
 See CONDUITS ; PIPE-LINES ; SUBWAYS. 
 
 UNDIVIDED INTEREST : 
 
 Held when land is not located by descrip- 
 tion, 559 
 UNINTERRUPTED : 
 
 In prescription, 675-682 
 
 UNITING : 
 Of successive adverse users, 686, 687 
 
 UPHEAVAL : 
 
 Of lands from overloading adjoiner*s lands, 
 
 334 
 
 UPLANDS : 
 Title of owner in lowlands, 376-390 
 
 USE: 
 
 (See also ADVERSE USE : ADVERSE POSSES- 
 SION ; BENEFICIAL USE ; DOMESTIC USE ; 
 EXTENT OF USE; POSSESSION; PRE- 
 SCRIPTION; REASONABLE USE; STREAMS; 
 WATERS.) 
 
 Proper, for streets, 721. 781, 814, 841-843 
 
 Of streets unauthorized, 797 
 
 USE Continued. 
 Of street incident to travel, 294 
 Incident to travel determines superior 
 
 rights in streets, 296 
 Of street railway includes what, 781 
 Of railroad tracks for private purposes, 797 
 Of right of way of railroad restricted, 736 
 Of a way does not establish a dedication, 
 
 709 
 Of public highway may not be granted for 
 
 private purposes, 721 
 Of light and air incident to land, 301 
 Of steam in street a nuisance, 799 
 Of fuel creating unwholesome smoke, 301 
 Of electricity affecting property rights. 
 
 291-300 
 
 Of earth as return circuit for electricity, 831 
 Of metallic circuit prevents interference of 
 
 electrical currents, 830 
 Of terminal telegraph poles, 830 
 Actual, limits prescriptive rights, 681 
 Extent of use of easement, 651 
 Of property for other than dedication pur- 
 poses, 708 
 
 Is sufficient to establish acceptance, 706 
 Of banks and shores of navigable waters, 
 
 244 
 Of banks for general purposes not included 
 
 in easement of passage, 244 
 
 USE OF WATER : 
 
 A common right among riparian proprie- 
 tors, 132 
 
 Eeasgnable uses of a riparian owner, 81 
 
 Reasonableness depends upon what, 81 
 
 Whether reasonable or not is for the jury, 
 207 
 
 Extent of, determined, 75 
 
 Must be limited, 73 
 
 Ordinary and extraordinary, 60 
 
 When a natural want, 71 
 
 Is an artificial want, when, 258 
 
 Must be adapted to stream, 84 
 
 A public use, when, 243 
 
 Rules governing use of navigable waters, 
 245 
 
 That may be resorted to cannot be fore- 
 seen, 2i9 
 
 By government does not become appur- 
 tenant to soil, 77 
 
 Supplying city with drinking-water, 207 
 
 For discharge of sewer, 205 
 
 For power purposes, 83, 243 
 
 Landowner may release and discharge 
 waters, 84 
 
 For operation of mill is superior to water- 
 supply of railroad, 81 
 
 For mining, agriculture, etc., 75 
 
 For irrigation a public use, 74 
 
 Extent of, for irrigation, 57, 75 
 
 For irrigation shared by riparian owners, 
 71 
 
 By subsequent appropriators, 75 
 
 Point of diversion, 75 
 
 Of subterranean currents, 258 
 
 Of percolating waters for long time, 262 
 
 VAPORS AND ODORS: 
 
 From sewers are nuisances, 306 
 From gas-plant, 305 
 VARIATION OF NEEDLE : 
 Judicial notice of, 561 
 
636 
 
 INDEX. 
 References are to sections. 
 
 VARY : 
 
 Parol evidence to vary deed, 542-562 
 
 VAULT : 
 
 Adverse possession of, 527 
 
 VERTICAL SUPPORT: 
 
 In coal-mining, 334 
 
 VILLAGE : 
 
 (See also CITY; CORPORATION ; FKANCHISE ; 
 
 STREETS.) 
 Narrow strip around about, reserved, 455 
 
 WALL: 
 
 Used as a boundary-line, 370 
 
 Not a good monument, 370 
 
 Overhanging adjoining lot, 336 
 
 To obstruct view of neighbor, 341 
 
 To prevent encroachment of streams, 382 
 
 WAR: 
 
 Prevents adverse possession, when, 688 
 
 WARRANTY : 
 
 As to area of a survey, 588-597 
 WATER : 
 
 (See also APPROPRIATION ; BOUNDARIES; 
 ICE ; IRRIGATION ; LAKES AND PONDS ; 
 BIPARIAN OWNERS ; SEA ; STREAMS ; 
 SURFACE-WATERS ; UNDERGROUND 
 WATERS ; WATER COMPANIES ; WATER- 
 SUPPLY.) 
 
 Value of, to land, 371 
 Bequires what for its transfer, 77 
 Appurtenant to land, 403 
 Determination of character, 172 
 Quantity increased and character changed, 
 
 216 
 Having defined course is a watercourse, 
 
 172a 
 Waters which flow and reflow are streams, 
 
 235 
 Capacity of, should recur with regularity, 
 
 243 
 
 Between states, 239 
 Loss of body of, to landowner, 371-390 
 Of a great lake belong to state, 421 
 License to fish and hunt in, 667 
 Of lake lowered for improvement, 424 
 Taken during construction of works, 75 
 Of Riparian Owners in Streams : 
 Bight of riparian owners to enjoy, 134 
 Bights in, sold by landowner, 260 
 Extent of use of, 75 
 Use of, must be adapted to stream, 84 
 Bight of riparian owner to use, 58, 60 
 May not be used unreasonably by riparian 
 
 owners, 212 
 May be used for industrial purposes, 63, 
 
 75 
 Use of, for power purposes, 59, 75, 83, 
 
 243 
 Moderate diversion of, may be made for 
 
 use of steam-engines, 101 
 Sold by riparian owner to railroad com- 
 pany, 62 
 
 Use of, for mining purposes, 75 
 Use of, for gardening purposes, 60 
 For domestic purposes, 60 
 Fit for primary use but not domestic, 207 
 When a natural want, 71 
 Seasonable use of. should be preferred, 
 57, 58, 81 
 
 WATER Continued. 
 
 Of Riparian Owners in Streams : 
 
 Beneficial use of, 75 
 
 Wasteful use of, prevented, 58 
 
 Less valuable must yield to more valuable 
 
 use, 81 
 Non-use for public purposes does not 
 
 alter public use, 149 
 Use of, is artificial, when, 258 
 Compensation for, must be made to ripa- 
 rian owners, when, 143 
 Of stream may not be diverted to injury 
 
 of another, 134 
 Diverted, must be used within reasonable 
 
 time, 75 
 
 Bight to divert, for irrigation, 71 
 Diverted under a mere license, 101, 662 
 Mode of diverting, 109 
 Diversion must not reduce volume, 102, 
 
 105,110 
 
 Not returned to original channel, 105 
 Point of diversion, 75 
 Detention and obstruction of, 81-100 
 May be detained for what purposes, 81-83, 
 
 243 
 
 May not be unreasonably detained, 167 
 Obstructed by sawmill to injury of lower 
 
 owner, 222 
 
 Damming of, may be enjoined, 85, 86 
 Of stream set back by bridge, 112 
 Baising of, must not obstruct drainage, 
 
 86 
 
 Belease and discharge, 84-86, 190 
 Opening for discharge of, 117 
 Discharge of, not restrained, when, 178 
 Discharged in natural condition, 185 
 Appropriation of, by non-riparian owner, 
 
 57-61 
 
 Extent of appropriation by riparian own- 
 er, 57, 58 
 
 Not personal property until captured, 77 
 Collection must be reasonable, 83 
 
 Of Navigable Streams : 
 
 When public property, 56 
 Title to navigable, is in state, 381 
 Bights in, to harbor-lines, 381 
 Bight to navigate, is public, 234 
 Its navigability is a question for jury, 234 
 Navigable in law and in fact' distin- 
 guished, 238 
 Having natural capacity for navigation 
 
 are navigable, 233 
 Need not be fit for navigation at all 
 
 times, 232, 243 
 Public highways for floating logs, when, 
 
 243 
 
 Capable of floating logs, are public high- 
 ways, 232 
 
 Surface-waters : 
 
 Bights regarding surface-waters, 171-195 
 Gathered in reservoir is surface-water, 
 
 when, 172 
 Overflowing banks are surface-waters, 
 
 173 
 Passing to neighbor's land may be taken 
 
 by landowner, 272 
 From roofs, 180 
 Conducted into mine by adjoining owner, 
 
 284 
 Seeping through embankment, 173, 175 
 
INDEX. 
 
 637 
 
 References are to sections* 
 
 WATER Continued. 
 Underground Waters : 
 
 Subterranean or underground, 251-275 
 Presumption that they are percolating, 
 
 257 
 Quantity of diminished, is evidence of 
 
 subsurface current, 256 
 Failing to flow to a spring, 259 
 Disappearing upon person's land, 256 
 Of stream gradually disappearing and 
 
 percolating through sand, 257 
 Escaping from subways, 145 
 Drawn off by percolations, 110 
 Drawn from well by pipes, 261 
 
 Pure and Foul : 
 
 Is pure when wholesome and ordinarily 
 pure, 148 
 
 Kequired to be made potable, 210 
 
 To preserve its purity city is not bound 
 to maintain structures, 220 
 
 Pollution of, 201-223, 263-270 
 
 Taken from river and returned unpol- 
 luted, 61 
 
 Source of, must not be polluted, 143 
 
 Of well impure, 264 
 
 Muddy by engineering operations, 207, 
 218 
 
 Polluted by factories, etc., 201, 216 
 
 Made hard by chemicals, 207 
 
 Polluted by city sewage, 211 
 
 Polluted by discharge from purification- 
 works, 210 
 
 Eendered impure by refuse from saw- 
 mills, 222 
 
 Polluted by gas-works, 264 
 
 Measure of damages for pollution, 223 
 For Irrigation: 
 
 For irrigation in arid countries, 71-77 
 
 Taken for irrigation limited, 75 
 
 Use for irrigation a public use, 74 
 
 Unappropriated, given to public, 74 
 
 For irrigation, shared how by riparian 
 owners, 71 
 
 What constitutes a legal appropriation, 
 75 
 
 Appropriation of all, means what, 75 
 
 Appropriation for beneficial use, 75 
 
 Not "appropriated" until used, 75 
 
 Eight of first appropriator to, 75 
 
 Appropriators of, may construct ditches, 
 73 
 
 When returned to main stream, become 
 part of it, 76 
 
 How measured in arid countries, 75 
 For Water-supply : 
 
 By city or company, 141-170, 143 
 
 Scarcity of, how treated, 84 
 
 Collected under pressure and not con- 
 fined, 272, 274 
 
 Quantity and quality of, 148 
 
 Furnished to inhabitants unfit for use, 
 148 
 
 Not filtered as required, 148 
 
 Pipe-lines for, 841-860 
 
 Carriers of, cannot claim ownership, 73 
 
 Separated, collected in reservoirs becomes 
 personal property, 62, 77 
 
 Must supply to inhabitants, 149 
 
 Question whether applicant for, is within 
 reasonable distance is one for the 
 courts, 149 
 
 WATER Continued. 
 For Water-supply : 
 
 Patrons may be governed by reasonable 
 
 rules, 150 
 
 Power of company to fix rents, 151 
 Boundaries on, affected by : 
 Bodies of, as boundaries, 371 
 Boundaries not confined to large bodies, 
 
 377 
 Land described by, will follow its 
 
 changes, 381 
 
 Action of. on banks of stream, 377 
 Erosion of, depends on velocity, 377 
 Scouring and carrying power of, 377 
 Receding gradually or suddenly, 424 
 Lands submerged by, 383-390 
 Recession of, title to land exposed, 381-390 
 Of lake receding, 424 
 Land under, included in acreage, 411 
 
 WATER COMPANIES : 
 
 (See also CORPORATIONS; FRANCHISES; 
 
 RIPARIAN OWNERS; WATERS.) 
 Public corporations, when, 146 
 Qttasi-public corporations, when, 149 
 Franchises, purchase or transfer of, 142, 
 
 874-878 
 
 Franchises of, exclusive, when, 147 
 Powers of, construed, 141-143 
 As public carriers, 73 
 Contracts construed in favor of public, 54, 
 
 147 
 
 Operation and control, 141-160 
 Rules and regulations of, 150, 151 
 Regulations imposed by legislature, 146 
 Power to fix rents for water, 151 
 Entitled to rights of riparian owners, 
 
 when, 62 
 
 Not enjoined from taking water, when,63, 148 
 To store and sell flood-waters, 57, 62, 75 
 Right to take works, 848 
 Property in pipes and plant, 847 
 Must supply all on street where pipe is, 
 
 148, 149 
 
 Contract for water to extinguish fires, 148 
 Right to pump unflltered water at a fire, 148 
 May enjoin pollution, 209 
 
 WATERCOURSES : 
 
 (See also APPROPRIATION ; IRRIGATION ; 
 RIPARIAN OWNERS ; STREAMS.) 
 
 Defined and distinguished, 172a 
 
 Surface-waters distinguished from, 171, 172, 
 172a 
 
 Underground currents compared with, 259 
 
 Lakes are, when, 172 
 
 Ditches may be, 172a 
 
 Artificially deepened streams are, 172a 
 
 Springs are, when, 172a 
 
 Streams spreading out remain, 172a, 173 
 
 Water need not flow continually, 172a. 
 
 Flow increased by draining of swamps, 184 
 
 Capacity must not be overburdened, 184 
 
 Drainage of surface-waters into, 184 
 
 Ponds drained into, 179 
 
 Riparian owners may interfere with, when, 
 116 
 
 Diverted by companies building bridges, 
 113 
 
 May be used to conduct appropriated wa- 
 ters, 75 
 
 Becomes boundary, when, 378 
 
638 
 
 INDEX. 
 References are to section 
 
 WATER MARK : 
 
 See HIGH- and LOW-WATER MARK. 
 
 WATER-PIPES : 
 
 (See also CONDUITS; PIPE-LINES; SUB- 
 WAYS.) 
 
 On streets and ways, 841-860 
 .Negligence in laying, etc., 145 
 Too small and accepted by city, 148 
 Are " land," when, 5 
 Must not obstruct navigable stream, 242 
 
 WATER RATES: 
 
 Must be reasonable and fixed, 151 
 
 Begulation of, 151 
 
 Fixed by government reviewed by courts, 
 
 151 
 
 How determined and fixed, 151 
 Reasonableness of, how determined, 151 
 
 WATER-INCH : 
 
 Defined or described, 75 
 
 WATER RIGHTS : 
 
 Are incorporeal hereditaments, when, 77 
 
 Of riparian owners, 54, 55, 56, 83 
 
 Of appropriator are strictly usufructuary, 
 
 77 
 Appurtenant to land will pass with grant, 
 
 77 
 
 Acquired by prescription, 671-700 
 Of miners in arid countries, 75 
 For irrigation not superior to rights for 
 
 mining or milling, 81 
 Conveyance of, does not convey land of 
 
 mill-site, 77 
 Conveyance of, is conveyance of the ditch, 
 
 when, 77 
 Destroyed in making unnavigable stream 
 
 navigable, 241 
 
 When destroyed, what is measure of dam- 
 ages, 223 
 
 WATERWAYS : 
 
 (See also HIGHWAYS; ROADS; STREAMS; 
 
 STREETS.) 
 Ownership of, 444 
 
 WATER- WORKS : 
 
 Easement in land, 644 
 License to build, 664 
 Negligent construction of, 144 
 
 WATER-WORKS Continued. 
 For supplying cities are for municipal pur- 
 
 poses, 141 
 In operating, a city is regarded, how, 144 
 
 WAY: 
 
 Acquired by the public across private es- 
 
 tates, 683 
 
 Prescriptive rights in, 671-700 
 Measurements to, 606 
 Rights in subways, 841-860 
 Telegraph and telephones in public, 811- 
 
 840 
 Over ice of streams and ponds, 168 
 
 WELL: 
 
 (See also UNDERGROUND WATER.) 
 Impure waters in, 264 
 Destroyed by sewer, 255 
 
 WIDOW : 
 
 Cannot tack possession to that of husband. 
 
 687 
 
 WILL, ESTATE AT: 
 
 See ESTATE AT 
 
 WITNESSES : 
 
 Opinions of, as evidence, 627, 628 
 To determine boundary, 611-640 
 Opinions of, as to ice-jam, 85 
 
 WORDS : 
 
 Value of small, in descriptions, 406-408 
 Meaning of " north," " northerly," etc., 603, 
 604 
 
 WORKS : 
 
 Franchises for public, 861-887 
 
 Erected and operated under license, 661- 
 
 670 
 
 For water and ice, 141-170 
 Operation of, may be prevented and pollu- 
 
 tion of stream stopped by injunction, 201 
 
 YEARS : 
 
 Franchise for a term of, 848 
 YEARS, ESTATE FOR : 
 
 Defined, 18 
 
 No special words necessary to create, 18 
 
 Duration fixed and certain, 18 
 
 " Years " is merely descriptive, 18 
 
 How terminated, 18 
 

UNIVERSITY OF CALIFORNIA LIBRARY 
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