A A 8 2 5 5 8 2 >!!T! ni'i (-.:■:« T37l9f (590 3'. I ' ! ' SYNOPSIS OF LECTURES ON FIXTURES AND EASEMENTS FOR THE JUNIOR CLASS— LAW DEPARTMENT UNIVERSITY OF MICHIGAN. BY B. M. THOMPSON, JAY PROFESSOR OF LAW. ANN ARBOR: COURIER HOOK AND ,I01! I'KINTIXG IIOUSE. isno. COI'VBIOIITKIi Hy U. ]M. THOMI*HO:X, ISS9. PREFACE. TIh' l'oIl(Kviii^ syiiDp.sirt of lectures ii|«>ii fixtures and ease- ineiits eoiitains a mere outline of the lectures aetuiilly delivered. This outline is designed to assist the student in uhtaining full and satisfactory notes upon the various topics treated. It is ex- pected tiial lie will take individual notes in the cities room and will, as far as possilde, examine and study the cases cited. 15. M. TIIOMTSON. I'-NIVKItSI rv OK Mil IIIIi.VN, Mari-ti I, INHi. , LECTURE I. 1 iXTURES. A (ixture is a personal chattel attached to real estate. Fixtures are divided iiilo two classes. 1. Chattel fixtures. 2, Real fixtures. A chattel fixture is a fixture which retains the char- acter of personal property, is still a personal chattel. A real fixture is a fixture which has become a part of the real estate to which it is attached, is no longer a personal chattel but has become real estate. This classification is not given l)y text writers but we believe the terms more satisfactory than viocable and im- Diovahle fixtures. The mere definitiou of a fixture is of no value whatever in solving any legal controversy over this class of property. The very kernel of all such con- troversies is not, as to whether the property in question is or is not a fixture, but whether or not, it is personal property or real estate, or, as we have classified fixtures, whether that particular fixture is a chattel fixture or a real fixture. Wallcer v. Sherman, 20 Wend., 03(5. Teaff v. Hewitt, 1 Oliio .St., .")11. The term fixture is (|uite moilern and is not found in the old books of the law. At first whatever was affixed — G— to till' rciilty lor tlu' purpose of VuMiiji used in coMnection will) it. hecaiue ri'al estate and could not he det,aclied witliout tlieconstMit ol the owner of tiic land. Slieeii V. llickie, •) Mi & W., 175. Eiwes V. Maw, .'{ East, 37. Climie v. Wood, L. R., 4 Exch., 327. ]\Ieiix V. Jaooljs, L. R., 7 Eng. & Irish App., 481. Conse(piently at the lirst the term was used to desig- nate a particular description of real estate, that portion which had been added to the naked land in the way of im- provement. Fixture then meant a particular part of the real estate. But after a time the rule that a fixture was necessarily real estate was relaxed in favor of the tenant manulacturer. When such a tenant had erected buildings upon the leased land, or annexed personal cjiattels thereto for tlie purpose of enabling him to engage in trade and manufacture, he was permitted to remove sucii fixtures during his term if he could do so without material injury to the realty. Prescott V. Wells, 3 Nev., 82. Elwes V. Maw., 3 East, 37. Perkerill v. Carson, 8 Iowa, 544. State V. Bonham, 18 Ind., 231. These exceptions to the general rule were gradually extended in England in favor of all tenants except the agricultural tenant. In his case it is still held in England that agricultural fixtures become a part of the realty and cannot be removed by the tenant without the consent of the landlord. Elwes V. Maw, 3 p]ast, 37. — 7— L'iul()ul)l('(lly the reason for the distinction made be- tween the tenant fanner and the tenant niannlactiirer is I'ound in the fact that a hu'ii^e class of a<;ric'iiltiiral tenants was at the first composed of serfs, wlio were themselves regarded as real fixtnres. Tlie serf could not leave the manor without permission, he was ad scrij^ta glehae and passed with a i:ranl of the estate. It followed as a matter of course that all improvements to the land made by the serf were regarded as constituting a part of the realty and made for the benefit of the lord. Thus the rule became so firmly established that it could not well be disregarded by the courts. On the other hand the manufacturer was from the first a free man. In his case there was no prece- dent in favor of the landlord, no judicial obstacles to be overcome in doing him simple justice and the courts could rightly hold that personal property used )>y the tenant to enable him to carry on his business successfully, although lie might necessarily be obliged to attach it to the land or even construct with it a building, was still his personal property and might be removed by him, provided he could do s without material injury to the realty. The reason given by the courts for making a distinction between one class of tenants and another was that manufacture and trade ought to be encouraged. A better reason is, tliat to permit a tenant to remove fixtures, which he is under no obligations to put upon the land, does the landlord no wrong and gives the tenant his own. It is true that man- ufacture and trade should be encouraged, so should every man, in any legitimate business, be encouraged to make that business successful. The rule that compels the farm tenant to work his farm in the very condition lie received it, or give all the improvements he makes in the way of buildings and other fixtures to the landlord, is a great out- rage. In this country it is not the policy of the law to — 8— r.ivor ;iiiy piirliciilar class. The blacksmith who leases a l>i('C(' of ground ami erects thereon a shop for the purpose (iT his (rade, is not re!j;ar(led as beiiii; entitled to any more (•nii-i(lci;itii>ii Ih.iii the farmer who leases a farm and erects I hereon a cider mill for the purposes of increasing the jtrolils of his i'arni. The courts of this country have re- pi'iiliMlly cri'icised the rule laid down in Elwes vs. Maw^ hut have never directly disregarded it. The books are full of cases where a destinction is made between trade fix- tures and others, although the strong current of authority is against making any such distinction. Van Ness v. Packard, 2 Pet., 137. Holmes v. Tremper, 20 John., 29. Hatttick V. Stober, 11 Ohio St., 482. Wing v. Gray, 30 Vt., 261. Dubois v. Kelly, 10 Barb., 406. As we have said, any chattel annexed to tiie realty is a fixture, but to constitute a real fixture by which means personal property is converted into real estate there must be: 1. Actual or constructive annexation of the chattel to the realty. 2. Adaptation of the chattel annexed to the use or purpose for which that part of the realty to which it is annexed is designed. 3. The intention of the party making such annexation to make such chattel a permanent addition to the realty. Tealf V. Hewitt, 1 Ohio St., 511. Fillnian v. De Lacy, 80 Ala., 103. ACTUAL ANNEXATION. What is meant by actual annexation is, that the chat- — — tel must be attached to tlie realty by somcl liiii^i inori' llian its own \vei ex- cept the land and real lixtnres. Case cited above. CONSTRUCTIVE ANNEXATION. In many machines there are certain parts which are never attached or affixed to the machine itself and other parts which are sometimes attaclied and at other times de- tached, belts, chains, saws, levers, mill stones, etc., etc., for example. It is well settled that a machine or machinery is to be treated as a whole, and that if a machine, or a quantity of machinery, is so attached as to become a real fixture, every part of such machine or machinery, wliether individually attached or not, is a part of such real lixture. It is said to be constructively attached. Fisher v. Dixon, 12 CI. & Fin., 812. Deal V. Palmer, 72 N. C, 58?.. No chattel can be a lixture unless it is cajtaMc of be- ing permanently attached to the realty. Scudder v. Anderson, 54 Mich., 122. —12— AD APT ATI ox TO I'SE. A real fixture must he adupted to the use or purpose of tljiit part of the realty to which it is annexed. Campbell v. O'Xeii, CA Pa. St., 290. Kortiiiaii V. (i(i>i)|)i'i-, 14 Ohio St., 5.J8. The supreme court of Minnesota speaking of the two essentials of a real fixture, attachment to the realty and adaptal)ility to use, says: ''To make a chattel a fixture, it must not be merely essential to the business of the struc- ture, but it must be attached to it in some way, or at least, it must be mechanically fitted so as, in ordinary under- standiniT, to constitute a part of the structure itself. It must be permanently attached to, or be the component part of some erection, structure or machine which is at- tached to the freehold, and without which the erection, structure or machine would be imperfect and incomplete." The same court defines constructive attachment as ex- isting when a chattel has been actually attached and then tempoiarily removed for repair, or where it is a compo- nent part of a machine which is permanently attached. Walford v. Baxter, 33 Minn., 12. Farmers Loan, &c., Minn. &c. v. 35 Minn., 5-13. INTKNTION TO MAKE TUE CUATTEL A PERMANENT ADDITION TO THE REALTY. To convert a chattel into a real fixture the person making the annexation must intend to make such chattel thereby a permanent addition to the realt3^ The inten- tion with which the annexation is made is often the essen- tial test which determines its character as a lixture. And —13— what is licrc mciiiit by intent ion, is not the secret will and purpose ()(■ I lie party, not the thon«:;lit an6 N. C, 265. The Massachusetts rule on this subject contains an important exception to this general proposition. In JIc- Connell v. Blood, 1'2.'> Mass., 47, the genc^ral rule is given that "whatever is placed in a building b}^ the owner or mortgagor to carry out the purpose for which the building was erected and permancMitly to increase the value for —18— occupation or use, allliou^li it may ho removed without injury lot lie build in*; or itself, iiecomes a [)artof the realty.'' It would appear, however, that the /^M/y>o«e for loh'ich the huildiiui iDas erected is an iiiiporlaiil factor in determining the character of a fixture; that, for instance, if a huilding was erected for a flouring mill, all machinery adapted for llouriiii: mill puri>()ses placed therein for use, would be- couu' ri\d lixtures, but that if afterward the owner of such building, after it was erected, should convert it into a boot and shoe factory, machinery adapted to that purpose placed in the building would be chattel lixtures. McCoiinell v. Blood, 128 Mass., 47. Soutlibridge v. Massoii, 147 Mass., 500. Or if lie converted it into a planing mill, machinery adapted to that business would be chattel fixtures. Carpenter v. Walker, 140 Mass., 416. Maguire v. Park, 140 Mass., 21. VKNDOFi OR MORTGAGEE OF THE CHATTEL. The (juestion of the character of a lixture frequently arises between the mortgagee of the land, and a third party (daiming title to or a lien upon the fixture, as for instance, where the owner of the realty purchases machinery under a contract l)y the terms of wliicli the seller is to have a lien thereon until paid for, or title is not to pass until paid for, and such machinery is annexed to the realty. In such a case as between the owner of the realtj^ and the vendor of the chattel the fixture is a chattel fixture, but as l>etween such vendor and a subsequent mortgagee without notice it is a real fixture, and if it is so attached^ ~1\)- thiit it cuiiiKtl 1)1' removed witliout injury lo the really it is a real fixture as l)etvveen the vendor and a ]>rior mort- gagee. Hemly v. Dijikerholf, oT Cal., .'!. Eiives V. Estes, 10 Kan., MA. Haven v. Emery, 33 N. H., GG. Davenport v. Sliants, 43 Vt., 546. K^nowiton v. Jolmson, 37 Mich., 47. Inj^er.soll v. liarnes, 47 Mich., I(i4. Bass Foundery &.c. v. Gallentine, OiJ Ind., o25. Hamilton v. Huntley, 78 Ind., 521. Foote V. Gooch, 96 N. C, 265. Rowand v. Anderson, 33 Kan., 2(>4. Freeman v. Leonard, 99 N. C, 274. Grand Island &c. v. Frey, 25 Neb., 66. Boston &c. V. Bankers Tel. Co., 3G Fed. Rep., 288, If the owner has expressed, at the time he annexed the machinery, a clear and unequivocal intent not to make such machinery a part of the realty, as when he gives a chattel mortgage upon it, or at^rees in writing that it shall not become a permanent fixture, it will remain personal property, unless so attached as to make its removal im- possible without considerable injury to the realty. Tifft v. Horton, 53 N. Y., 377. Stokoe V. Upton, 40 Mich., 581. Burrill v. Wilcox Lumber Co., (Mich.), 1887. Walker v. Grand Rapids, &c., 70 Wis., 92. The reason for the above rule governing the interest of the vendor of the chattel and the mortgagee of the realty would seem to be this: In case of a prior mortgagee, it is the vendor's fault if the chattel is so annexed that its •removal will injure Ihe real estate, the mortgagees secur- —20— ity, and tlierefore the vendor, the party in fault, and not the niorti;agee, an innocent party, must suffer; and in case of a sul)se(|uiMit inorti;a<;ee without notice, the vendor is lilvewise at fault, in suflerini^ the owner of the land to he the apparent owner oi' the fixture, thus enabling- him to obtain a loan n[)on the land thus apparantly enhanced in value. FIXTURES WRONGFULLY ANNEXED TO THE REALTY. Chattels are sometimes annexed to the soil without any contract or agreement i^etween the owner of the land and the owner of the chattel. When the owner of the soil erects a structure with the materials of another, it is held that so long as the identity of the original materials can be shown, the right of the original owner to his property continues and that he may follow and take it: When, however, the property has lost its identity, it ceases to exist as a cliattel and belongs to the owner of the land. Cress v. Mar.ston, 17 Vt., 533. White v. Twitcliell, 25 Vt., 620, Pierce v. Goddard, 22 Pick., 559. Shoemalver v. Simpson, IG Kati., 43. If a stranger erects a building, with his own materials upon the land of another, without the owners consent, such building belongs to the owner of the soil and cannot be removed against his will. Tread way v. Sharon, 7 Nev., 34. Madij^an v. MeCarthy, 108 Mass., 376. Heubcliaiaiin v. McHenry, 29 Wis., nt of the landloi'd and his lease I hei'ebv Ix'comes a lease from —28— year (o year, liis ri6. s The rule is broader than the instance given would indicate. When a tenement is granted there will pass as appurtenant to the grant any easement necessary for the use and enjoyment of the property in the condition in which it was granted, unless it appears from the terms of the grant that such was not the intention of the parties. To appropriate a term of the jeweler, the grantor sells the jem, the estate, with its setting. When land has been platted for instance and lots are sold bounded on a street shown on such plat and such street and the connecting streets add to the value, or to the convenience for use, of the lot sold, there is an implied grant to tlie vendee of an easement in such street and the connecting streets. Bell V. Todd, 51 Mich., 21. Smith V. Lock, 18 Mich., 5(i. 4 - 88— Fox V. Siij^or Ut'llriery, I(»i» Muss, 2!)2. liiirtlett V, Buiigor, 07 Me., 4(i0. WiK'^riiis V. McCIeury, 4U N. V., .34(). liiimur Co. V. ("KMneiitH, 4i» Tex., 347. Mead V. Anderson, 4(1 Kan., 2(I.S. I'.ouiin;; v. I'.uitun, 101 N. (J., 17(j. If tlic street."^, however, do not add to the vahie or make the use of the land more convenient no easement passes. IJ.'ll V. Todd, ol Mich , 21. Asiiiin, when the owner ol' an estate or ol" two or more tenements, has so arr;mi:;e(l for the nse and enjoy- ment of snch estate or tenements, tliat one portion of the estate or one tenement, derives a benefit and advantage from another portion of the estati or another tenement, of a permanent open and continnous character, and then sells one tenement or a portion of the estate, the vendee takes the part sold subject to the benefits which openly and visably appear to belon*!; to it at the time of the sale. Clark V. Klekh, 117 111., 643, Jones V. Jenkins, 34 Md., 1.- — ' Diiiiklee v. Wilton R. R., 24 N. H., 481*. Lan»])honi v. Milks, 21 N. Y.,505. Cannon v. Boyd, 73 Pa. St., 17!t. • Lennig v. Ocean City Asso., 41 N. J., Kcj. OOfi. Morgan v. Meuth, 60 Mich., 238. "^ Howell v. Eates, 71 Tex., 6!)0. The foreiioinc: rule applies to implied grants of ease- ments, not to implied reservations of easements in deeds. There are courts, however, which have made the broad — :i9— stiiloinont I liut ;i like rule prevails u>; l<> iiiiplie.I reserva tioiis alliniiiii^ that when one part of ati estate is depen- dent, of necessity, lor eii.joyinent on some use in tin- iiatiii'o of an easement in some other part, and the owner conveys either part without any express ai;reement on that sul)ject, that in that case the dominant estate, whetlier conveyed or not, carries or reserves with it, an easement of such necessary use. Galloway v. Bonesteele, Ho Wis., 7!t.-^ Dilliuaii V. Hoffiuaii. 38 Wis., 559. Nicliolas V. CliHinl)er!aiii, Cro. Ja.s., 121. Pyer v. Carter, 1 H. & N., 910. McIMierson v. Aclver, 48 Aiu. Rep., 74!i. Goodale v. Godfrey, 53 Vt., 21!). + Crossley v. Lightowler, L. R., '2 Cliy. App., 478. Sutfleid V. Brown, 10 Jur. N. S., 111. Leibert v. Levon, .8 Barr., o8.i. Sanderlin v. Baxter, 7() Va., 2!>!». "^ 1-Jut there is a marked dillerence in the length and breadth of the rule in the two casas owing to the applica- tion and enforcement of certain other rules. It is a fun- damental principle that tiie grantor will not be permitted to derogate from his grant, and tiiat tlie grant will be con- strued most strongly against the grantor. These two prin- ciples so far modify that rule that when it is applied to reservation-^ all implied reservations are exclude.!, except those where a paramount ne<-essity make--' an exception necessary. Burns v. Gallajjher, 62 Md., 462. Carbrey v. Willes, 7 Allen, .■{2. Mitchell v. Seipel, 53 Md., 251. Mitchell V. Seipel, 3(5 Am. Rep., 404. When there are simultaneous sales of parts of the entire property, privately or at auction, or under a decree or judgment, or when parts of the estate are devised to dilFcrent persons, or there his been a partition among parceners or tenants in common, or an admeasurement of dower, and in all similar cases, the entire transaction is regarded as iiaving taken place at the same moment, and there is an implied grant to each under the first rule of all easements or quasi easements. Cox v. Matthews, 1 Vpntr., 237. Rosewell v. Prior, . (^ will 1:111 V. Nuble, 75 ('hI., i"). HY PRESCRIPTION. Easements may i)e acipiired by prescription. As the —42— lorin iiiii»Ii(»s llic v\'^\\l to the casciiKMil rosls upon the pre- suii)i)li<)n tluit there IkkI been in the lirst instance a scrii)lioM. is praftically the same hi prescription a i^raiil i> iiifcrrLMl because an easement l>e- lonj^s to an individual as the owner or oc(;ui)ant of a |)ar ticular tenement. There is a pLM-son to whom the <;rant could have been made. In the case of custom there is no such presumption. The persons who claim a riijht ])y custom are incapal)le of takin<; by g;rant, they are simply the inhal)itants of a i)articular locality. Hence the cus- tom relied upon to establisii the rii:;!it, must, in ord(M- to be a i;ood .custom, be reasonable. In the case of pre- scription, where a former grant is assumed the user determines the nature anralion can hold in its corporate cai)acity, and when that is the case, such corporation can ac(iiiir<> an e iseinent by pre- scription. —44— Dt'iTfii'ld V. Conn i{. II., 144 Muhs., .Si"), rcople V. Jackson, 7 Mieh., 432. Tlie distiiiclion between ri}>;lits acquired by prescrip- tion and custom is thus stated l)y the supreme court of New IIanij)shire: "It those rights are common to any manor, district, hundred, parish or county, as a local right, they are holden as a custom. If the same rights are limited to an individual and his decendants, to a body politic and its successors, or one attached to a particular estate, and are only exercised by those who have the ownership oC such estate, they are holden as a prescrip- tion, which prescription is either personal in its character or is a prescription in a que estate.'''' Perley v. Langley, 7 N. H., 233. "^ LECTURE V. DOMINENT AND SERVIENT ESTATES. The estate havin^^ the easement and theiv])y having a certain command and dominion, over another estate, whereby the owner of the estate having such easement, can use for certain purposes the other estate for the benefit and advantage of his"estate, is called the dominant estate, and the estate which is thus obliged to serve the dominant estate in some particular for its use, benefit and advan- tage, is called the servient estate. Hence it comes, that this particular class of rights and interests, when consid- ered with reference to the dominant estate, are called easements, and when considered with reference to the servient estate are called servitudes. There are certain general principles applicable alike to all easements due to their nature and the purposes for which this class of rights are created. 1. An easement proper belongs to an estate and not to an individual, is appurtenant to such estate and passes by a grant of the estate, although it is not described in the grant, and the grant does not in terms convey the appur- tenances. Ross v. Thompson, 78 In d., 00. «^ Dority v. Duuninjj:, 7S :\[e., 381. ^ De Rochemeut v. Boston, etc., 04 N. H., 500. —40— •2. If tlio (^iscmciil is liiiiitc(l l)y tlu- express terms of lli(> uraiil, 11(1 lircatcr easciiH'iil lliaii llic one described passes, alt li(>iij;li it maybe insiillicient lor the full and per- fect enjoymeiil of the dominant estate in that regard. For instance, if A., the owner of Whiteacre, gives B., the owner of Blackacre, a right of way eight feet in width across Whiteacre, for the use of Blackacre as a farm, the width is lixed by the grant and B. cannot claim a wider way, although it nuiy be altogether too narrow to permit wagons loaded with hay, as it is customary, usual and benelicial to load them, to pass and repass. B. must ac- commodate his loads to the way, he cannot have the way widened to accommodate his loads. Atlviiis V. Board man, 2 Mete, 457, 469. 3. If the grant mentions tiie purpose of the easement and does not specifically describe and limit its extent, an easement which is reasonably sufficient to accomplish the purpose passes. For instance, in the case last supposed, if A's. grant to B. had been a right of way across Whiteacre for the use of Blackacre as a farm, witiiout limiting its width, a right of way would have passed of such a width as to accommodate wagons loaded in the ordinary and usual manner. Wheeler v. Wilder, 61 N, H., 2. ^' Brown v. Stone, 10 Gray., 61. Prescott V. White, 21 Pick., 341. ^ 4. The owner of the servient estate has only so far abridged the use and enjoyment of that estate as is re- quisite and necessary to enable the owner of the dominent estate to have a reasonable use of tlie easement. He -47— m;iy iiiiilc*' any use of the s-'i'viiMil estate which does ii(»t interfere witli the reiisonable use ol" the easement. Indeed, he may advance one st((p further than that, he may make any use of the servient estate which does not make the use of the easement more inconvient than is reasonable uii(h'r the circumstanctes. The easement heh)n;;s to the (h)minant estate al)solutely, bat its use nevertheless is simply a reasonable use, haviii;j; rei^ard to the rights of the servient estate. Olcott V. Thompson, o9 N. 11. , VA. Sutton V. (Jriill, 4ii N. J., Eq., 213. Atkins V. liourdnmii, 2 Mete, 457. H"^ 5. If, however, the grant spi'cihcally describes the easement, the easement described cannot be abridged by the owner of the servient estate, although such abrigd- ment would, were it not thus specilically described, be deemed reasonable and proper. Thus if a right of way is granted, as it is then estab- lished, such right of way cannot be changed, modified or interfered with without the consent of the owner of the dominant estate. Dickinson v. Wiiiliiey, 141 Ma-^s., 414. Williams v. Clark, 140 Mass. 248. Patton V. Western Carolina Co., 101 N. C.+TtT^' ^'^l (). If there is nothing in the grant to the contrary, the owner of the easement must maintain and keep it in repair, and for that purpose he may go upon the servient estate and make all necessar\'^ and reasonable repairs in the proper manner and at the proper time. The 'grant of the easement is also a grant of such rights as are incident and necessarv to its reasonable u Loach V. HastingH, 147 Mass., -'Ao. 8. An easement is appurtenant to every part of the dominant estate, and wiien such estate is divided it be- longs to each part, provided tlie burden is not increased. Hills v. Miller, 3 Paige Ch., 254. "^ S. C. 24 Am., Dec, 218 note. Watson V. Bioien, 1 S. & R., 227. '' CLASSIFICATIONS OF EAS?:MENTS. The most common easements are: 1. Rights of way. 2. Rights of lateral support in land. 3. Rights incident to party walls. 4. Rights of light and air. 5. Rights incident to the use of flowing water. We shall consider each of these easements separately and ascertain in what respect the use and enjoyment of each is enlarged, curtailed or modilied by the general principles already given. RIOnTS OF WAV. Rights of way are either, 1, Public; or 2, Private. Public ways, are usually designated, wiien located in the — 40— (•(tiiiit tv, piihlic idails or liiirliwuys 1<» distinguish flu'rii rrom priv.itc romN; wIumi locatcil in a city, as public streets, toilislin^iiisli IIkmh (Votii piiviite streets and alleys. In the case of a pulilic way, the servient estate is easily designated, since it !-; the estate upon which the way is locatcil, hut the (Iniiijiiaiit <'state is not as readily des- crihefl. Till' use (»l" the easement l>el()iiy:s to the public an< siiU'cnMl any adiial damauc A imlilir way may bo created. 1. liy o- ration and an acceptanco of tho ^rant on the part of the corporation, estahli>li a jtuhiic way across Ids hinds, when empowered so to (h> hy tho statute. Post V. Pearsall, 22 Wend., 424, 444. Post V. Pearsall, 21 Wend., 111. Baker v. Johnston, 21 Midi., .Sl», 340. To create a public way l)y dedication, there must be such acts on the part of the owner of tlie hmd over which the way passes as to clearly indicate an int«'nlion on his part to estal)lish the way and to dedicate it to the public use, and also such acts on the i)art of tho public as to clearly indicate an acceptance of such dedication on its part. Augell on Higlnvays, i; 142. Dedication of public ways has its origin in the com- mon law, but it has assumed jxreat importance in this country within very recent times. 8o late as ls43 the supreme court ot' Pennsylvania i:ave a history of the de- cisions upon tho subject, and declared that the law was not well dolined ^overnin;; this ,(>ii, i!l Mich.. .H'.'. Hoaillcv V. Sail l''iaiicisc(), odCal., J'i'i. Since a public way not only confers u benefit upon (he public, that is a ri<:ht of use, but also imposes a Ijur- den, the duty of inainlaininliall not be recorded until it has been approved by the proper local body, which, in cities, is the common council, and in villages is the village board. These statutes seldom if ever, however, provide that a public way shall not be created in any manner dillerent from that pointed out. They ilo not abrogate the comnu)n —52— law, but loavo its provision^ still in force. Tlicy simply croalo a new method of dedication. When statutory re- iiuircincnls have been complied with it is called a statu- tory dedication. Detroit v. Detroit A M. II. II, i! Mich., 17.;. "* The statutory I'orniality is not, necessary to constitute a good dedication. Tiie vif:il princijde which ijives life to a dedication, is an intention on the part of the pro- prietor to dedicate land to the public for a definite and particular purpose, and an intent on the part of the public to accept the dedication for the i)urpose intended. Harding v. Jasper, 14 Ciil., '14;;. And since >uch intention on the part of the public and the proprietor is inferred from the acts and declara- tions of the parties and the surrounding circumstances, and is a question of fact for the jury to find, public ways have been dedicated in nearly every conceivable manner. Fisk V. Havana, S8 III., 208. Morgan v. R. R. Co., 00 U. S., 71(3. The dedication must be made by the owner of the fee. A mortgagor or tenant for years cannot make a dedication for a longer period than the term of his estate. The mortgagee or owner of the fee is not bouml by such an act. Kyle v. Logan, 87 111., •>4. The dedication need not be accepted hy the ptd)lic imnietiialclv, l)ut must be within a reasonable time. — r)3— I iilil ;icc('|itcil ilu! (l(Mlic;it ion is iKtl Wiiidiiiii ii|i'Mi llic pro- prietor. Mild I lie oiler iii;iy l)e wit luli-a wii. Hriel v. Natch.'-, Is Miss., 12.;. Wliite V. Siiiitli, ;;7 Mich., li'tj. ^ Bridges v. Wyckoir, fi7 N. Y., I.IO. If. however, a proprietor has made a dedication of huid to the i)iihlic on his part which niaterially eidiances the value of surronndini; land.s owned hy him, and then 'C In some of the states it is held that such acceptance on the part of the public must be evidenced by some formal act oti the part of the publi(r authorities, on the «i;roun(l tiiat in no other way can the interests of the i)ub- lic be [irotected, since any other inethoil would \)o liable to j^reat abtise. Maybury v. Staiitlish, "jO Me., 42. Com. V. Kelly, S (iratt., !). Weinier v. IJunlmry, 'M) Mich., liol. Taylor v. I'oitcr. I Hill, 14(i, 147. I'ar.sons v. Russell, II Mich., 113. Ames V. Port Huron, »fec., 11 Mich., 130. Ray City v. State Treasurer, 23 Mich. 4n!». Hurtttbo V. California, 110 U. S., ''ACk The statutes of the several states providiii'j; for the takin<; of private property for pui)lic use dilFer as to de- tails, but agree in tiieir main features, and there are cer- tain general requisites which all ol them recogni/e. 1. The property to be taken must be definitely de- scribed, and the purpose for which it is to be used lor the public, .specitically mentioned. 2. TIk' owner mu-^l Itc not ilied ol' I he pi'oceedings and —58- :;iv(Mi ;m opport unity lo sliou' caii^t' why tlic property slioiild not 1)0 faUcii. .'I. Tlic person (Pi- ])orsons who are aiif liorizetl to ascer- tain and del ermine whethei' the ])roperty should be taken act judicially, they must not be interested, and their find- iuirs must be supported by competent evidence, or if they are autliorized to act upon their own judgment, the pro- cee(linj:;s must show that they have informed themselves and exercised their jud;Lr;ment. 4. The value of the property and tiiejnst compensa- tion to wliich the owner is entitled must be found. 5. As a general rule, ever}'' requirement of the statute for the i)i'otection of the owner must be substan- tially complied with, and any deviation from a literal compliance which might work the owner a detriment, will be a fatal defect and avoid the proceedings. 0. It must appear from the proceedings tliat it has been judicially determined that the public interest or safety has created a necessity for taking the property, for the right of eminent domain, is based solely upon the theory that the nation, or the people, have reserved the right to reassert title to any property for the necessary use of the public, l)ut for no other purpose, Beekman v. Saratoga & S. R. R., 3 Page Ch., 4o. Beeknian v. Saratoga & S. R. R., 22 Am. Dec, 67r». Note. Paul v. City of Detroit, .32 Mich., 108. TIIK PURPOSES I'OH WHICH PIUVATK PKoPEllTV MAY HE TAKEN. At one time it was held tiiat private property could not 1)6 taken for a public way, unless the proposed way was one that the public generally would use for the pur- poses of trade and travel between dillerent parts of the country; that a public way was necessarily one that led —59— from some niarkot to some other market, or from one pub lie way to another, and that a nil de sar. which h'aiiblic way. Haldone v. Trustees, Ac, 2:i Barb., K).!. ^ It is now well settled, however, that the term pul)li(; use does not mean that all the iidiabitants of the state, or county, or town, or city even, are interested personally in such use, but that if (piite a limited number of people, a very limited number indeed, compared with all the inhab- itants, require the establishment of a public way that that is sutTicient to create a ])ublic necessity. Indeed, it has been declared that the pioneer settler, whose cabin marks the farthest point to which civilization has penetrated the wilderness, is entitltMl to have a public way established up to his very door. Sheaffv. People, ST 111., 189. Bartlett v. Bangor, 07 Me., 460. People v. Kingman, 24 N. Y., ooO. Bateman v. Black, 14 E. L. & Eq., (lit. At common law the ownership of the soil in a public way was in the owner of the estate over which it passed. The public had simply a right of user. In many city charters, however, it is provided that the corporation shall own the fee of all public streets. Matter of John ami Cherry Streets, 19 Wend.. ti.');i. y^ Unless there is a special statutory i)rovision. the owner of the estate retains the fee of the soil under the highwav and niav exercise anv and all rights of owner- — (10— ship over it not, inconsistent with (he ri^ht of user in the piil)lic which is limited to passinjj; aloni; it for hiisiness or pleasnri'. Tho taking of the hind for the i)urposes of a liij^hway is Indd to ])e also a taking of so much of the soil, or other material found within its limits, as can be advantageously used in inaking and keeping in repair the road bod. Pearley v. Clmiuller, Mass., 454.'' Goodtitle v. Allter, 1 JJurr, 13.3. Angell on Highways, (2 Ed.), ? 301. Jackson v. Hatliaway, 15 Jolnis., 447. The public cannot use a higliway except for the natural and usual purposes of a liighway. They may not pasture cattle in it, erect private or public booths in it, convert it into a race track, or an arena for public sports. Stack pole v. Healey, 10 Mass., 33. '^ Cuiiiliaii V. Koiiaii, S'i Micb., .'iG2. Tiie adjoining owner is not obliged to fence against animals upon the highways. Still since the public have a right to use the highway to drive animals from one place to anotiier, and the person making such use of the way, is only required to use reasonable care and diligence to prevent such animals from doing damage, if one of them, without the owner's fault, should break away and do damage upon adjacent unenclosed lands, the owner of the land would be without remedy, Hartford v. lirady, 114 Mass., 4t»t;. j The owner of the fee may use the highway to orna m Mit and b-autify his premises, and for that purpose may —01 — plant sliadt' tivos iijtoii I In lii;;li\vay, provided tliey do not interfere with piil)lic travel, and such trees remain the private projuTty of such owrjor, and should the proper authorities decide that they interfere with the puhlic user of the street, they cannot he cut down and destroyed until the owner lias been notified of such decision and he has been i^iveu a reasoiuible time to remove them. (Mark v. Dasso et al., :'A Mich., Sd. ^ It is the duty of the public authorities to keep the highways in repair, and a traveler has a right to presume that they are in such condition that he may pass along them. When a highway is made temporarily' impassible by snow drifts, washouts, or other obstructions, a traveler is justified, in order to avoid such obstructions, to pass over private lands if necessary. He may for that purpose tlirow down a private fence and cross enclosed fields. lie must, however, use that care which a rea'sona])le and prudent man would exercise under the circumstances to do no needles damage. Campbell v. Race, 7 Cusli., 408. S, C. .54 Am. Dec. 72.S. The reason for the above rule is based upon public necessity. It would seem, therelbre, upon principle, that the traveler must not himself create the necessity by consulting his own convenience, and that if the existence of the ()l)st ruction was known to him, and he might have pursued his journey by taking some other route, although such route would not have been as direct, or otherwise as desirable, he would not be justilied i!i going outside the —02— liiiilnvay upon j)rivato land, ami thai iiiidor ^iicli circiim- staiK'os he would l»o a trespasser. Morey v. Fitzj^erald, o7 Vt., 4S7. 'i'he rule in the adjudicated oases has l)een restricted to sudden tenii)oraryol)st ructions. There seems, however, no reason lor such restriction. The rij^lit to i^ass upon adjoininj:; land is based upon ttie necessity of the case. If the obstructions have existed for a lonu; time it would of course be known to all persons havini:; frequent occa- sion to use that way, and to such persons the necessity would not exist, if there was some other way that could be taken. But if a traveler from a distance, wholly i*j:no- rant of the condition of the way and without having re- ceive! any warnini;' from any source, should rome to a place where the way was im[)assil)le, for any reason, and it had been in that state for more than a year, wiiy does not the necessity, so far as he is concerned exists' Taylor v. Whitehead, 2 Doug., (Eng.), 745, 741*. Farnuni v. Piatt, 8 Pick., 339. .^ Leonard v. Leonard, 2 Allen, 543. Williams v. Sanford, 7 Barb., .309. If, however, it is the duty of the owner of the dominent estate to keep the way in repair, the right to pass upon private property, when such way is impassible use f)f tiuil particular way, lu' has no more right to use another way th.in he would have, if he had jiiircluisod u horse Lliiit should hocomc disaljled, to lake and use another horse owned by liis vendor, Biilliird V. Hurrisori, 4 Muule & Sel., 387, 'Ml.'^ Holmes V. StH'k'y, lit Weml.. .'>{)!. There is a cla-^s of ways, like alleys in a ciiy, which are (jua.'ii puhlic. The puiilic have an interest in them, since they enable the occupants of adjoiniiifz; premises to handle goods and merchandise without impedin;:; the use of the street in front of such premises. On account of that and other henelits, their creation under the right of emi- nent domain has been sustained. I5ut Ihey are principally beneficial to adjoining i)roperty owners, and therefore, when property is taken for an alley, the statutes usually provide that the compensation for such property ami the cost of maintaining the alley, shall ))e borne exclusively by the ])rivate property benelited, Paul V. Detroit, :V1 Mich., 108. LECTURE VII. PRIVATE -SVAYS. I'riviite ways are created: 1. By an express or implied grant, or by an express or implied reservation; 2. By prescription. We have treated of these subjects in treat- ing of easements generally. BY GRANT AND RESERVATION. As illustrating the rule that an easement is created by an implied grant, see ; Cihak V. Klekr, 117 111., G43. ^ and by an implied reservation. Gallaway v. Bouesteel, 65 Wis., ~9.^ BY PRESCRIPTION.! It is a general rule that there can be no adverse user when the acts of user were done under the authority of the owner of the servient estate. It does not follow, however, that, since the user commenced uuder authority, it must necessarily have continued under the same authority. It has been iield that user under a license may be converted aud changed into adverse user, and that if such adverse —05— usiT coiitiiiiu's the ivqiiisite period. :im (•.i-ciiiciil may he thus acquired by proscription. Eckerman v, Crippiu, .3!» Hun., Hit. House V. Montgomery, 10 Mo., Ajt])., 170. The user must he strictly adverse, contiiuutus and not under a license, during the entire statutory period. Eckerman v. Crippin, '>!• Hun., 419. Cronkliite v. Cronkliite, !»4 N. Y., 323. Wiseman v. LucksitiKer, H4 N. Y., .31. Nichols V. \Ventworth, loO N. Y., 4-"). A right of way can be acquired by prescription in another rijiiht of way. Thus, where tlie owner of A, the doniinent estate, has a rijj;lit of way across B, the servient estate, the owner of ( -, an estate abutting on such right of way, can, l)y prescript i(»n, make sucii way a way appurte- nant to the estate C\ althoui^h tiie user estal>lishing such prescription was of tiie same character as that for which the way was established, and in no manner interfered with the use of the way by the original grantee. Webster v. Lowell, 142 Mass., 324. Fitcbburg R. R. v. Page, 131 Mass., 391. A right of way cannot be acquired by prescription over an estate which cannot be alienated. Wootiworth V. Paymand, ol Conn., 70. %-- When a private way is a|)purtenant to an estate, the point or place from \\hi<'h the owner of the estate is to start, in order to use the way, is called the termhiua a — C6— tjaoi ''■"' •''*' p<»'iil vvln'ic llu- \v;iy cuds, i> callccl the tcr- viinus ad quern. It is one ol' the cssciitial (|iiulities of a private way tlial the owner has an irrevocalile rif^ht to start Iroin the terminus a quo and to go over the way to the iermimis ad qttem, not a mere permission or license so to do. 2 Blk. Com., :55 3 Kent. Com., 420. When a way is incident to an estate, one terminus being thereon, and contributes to the lull enjoyment of the estate, it is said to be ai>pendaMt or appurtenant to the land and passes with a grant of the land as an appurte- nant without being expressly named. It has been held to pass with a grant that did not in terms convey appurte- nances. 3 Kent. Com., 420. Garrison v. Rudd., 19 111., 5o8. Ackroyd v. Smith, 70 E. C. L., 164. When a right of way is appendant to land, it is ap- purtenant to every part of it. If such land be subdivided into several i^arcels and the several i)arcels sold to as many dilferent qrantees, such way attaches to each parcel and each owner may use and enjoy it. Watson V. Brown, 1 S. & R., 227. A right of way may be held by an individual and not be appurtenant to any estate. Such a way is said to be a way in gross. It is not a true easement, but rather a license coupled with an interest and irrevocable. —67— A way ;i[>i)urlt'ii;iiil to I.iikI (miimoI l>e severed there- from and coverted into a way in gross, neither can a way in ^ross he made appurtenant to an estate, (furrison v. Itucld, 1!» II1.,ooM. WAYS OH NECESSITY. There is one das^ of \v:iy> that deserve particular mention, termed ways ol necessity. They are always created by an implied grant or an implied reservation in a grant. For instance, if A is the owner of lots X and Y and they are so situated tliat Y cannot he used or enjoyed without the use of a way over X, and A sells Y and re- tains X, the vendee takes a right of way of necessity over X. The express grant of Y conveys by implication any right incident thereto necessary for its reasonable enjoy- ment. On the other hand, if X is sold and Y retained there is an imi)lied reservation of a way ol necessity, based on the presumption that the purchase was made with the understanding that this necessary reservation was made. Perntun v. Wead, li Mass., 203. Wiswell v, Mhnjijue, 57 Vt., 61(3. Ponifret v. Ricroft, 1 Saud., 321. Alley V. Carlton, J'.* Tex., 74.-^ Since a way of necessity can alone be created by an implied grant, or implied reservation in a grant, it follows that botii the dominant and servient estate must have been once owned, at the same time by the same person. There is never a way of necessity over a stranger's land. Wiswell v. Minogue, 57 Vt., 016. Tracy v. Atberton, 35 Vt., 52. Woodwortli V. Raymond, 51 Couu., 7U. —08— A way of iiocessiLy caii only arise whiMi i\ievv. is a pci- luniiont necessity, a real, actual ;nii).*^ y McDonald v. Lindall,.'{ Uawie., 492. ^ Turiibull V. Rivers, 3McCorancies's Appeal, 96 Pa. St., 200. Galloway v. Bonesteel, 65 Wis., 79. A way of necessity continues while the necessity re- mains, but when the necessity is removed the right of way is thereby extinguished. Carey v. Rae, ')8 Cal., 159. Hancock v. Weutworth, 5 Mete, 446. Abbott v. Stewartstowu, 47 N. H., 228. N. Y. Ins. & Trust Co. v. Milnor, 1 Barb. Ch., 353. Linkenlioker v. ( Jraybill, Sn Va., S.'io. When a way of necessity is created, the owner of the servient estate has the right in the first instance to locate the way, and if he nei:lect so to do, the owner of the domi- nant estate may make llic location. In either case the interest of both owners must l>e considered and the loca- —09— lion must he a rcasoiialjlc kih'. ( )I" coiirsc tlio parlies may a;;iTr miiliially upiiM a location. Smith V. Lff. 11 Ciniy, 47.{, 480. Powt'is V. Harlow, •').'{ Mich., 507. Hmiiill V. lloljhiiis, 77 Me., l!»:{. In this lattor case there is a plain statement of the law based upon a sa same principles that apply to the use and enjoyment of the others. They liave, however, for the sake of conve- nience in the matter of description, l)een divided into four classes, viz.: Foot ways, foot and horse ways, foot, horse and carriage ways, and drift ways. These names, with perhaps the e.\cei)lion of drift way, sulliciently indicate the character of these several ways. A drift way is a way for drivinji cattle, and the f^rant of such a way has been held to include a right to drive teams. Smith V. I.add, 11 Me., .{14, 320. The manner and extent of the use of a private way is designated and limited by the grant. The owner of a foot way, may not lead a horse, much less drive a team over it. In short, the owner is restricte(l to the use of >uch a way as has been granted. Brunton v. Hall, 1 Q. B., 702. *" McDonald v. Lindall, 3 Uawle, 402. In the use of the way the convenience of the owner of the dominant estate is nol alone to be consulted. The 6 -70— owner of the servient eslule has a rij:;lit to the reasonalde use ai»(l enjoyment of his estate, and in snch reasonable use he may inlerfevt^-tomevvhal with the ease and comfort with which the (tWiiyiV)!' thc,(h»Miinant estate may use the way. As ;tn illii^iraDOniVt' this princiijlo, it has been hehl that, when the fira\ji isVs'X'nt upon the subject, the j^ranlor may maintain ijai^ / a\y*oss a private way which the j;rant. ^ It has ht'cii hchl, lh;tt wIhtc the piir|)()><(' ;iih1 (thject lor which the way was civaleil have ilisappeaivd, the way ceases; that, lor instance, a rifjht of way lo an open sfjacc wouhl cease when the space was tilled with a huildini;. Heniiiiig v. Burnett, H Exch., IST. Alifii V. Goiuiiu', 11 A. ifc E., 7.'i!(. lint thechaiific in the situation and tlie surrondiniis iniisl he of such a nature as to permanent!}' destroy the ori«;inal purpo-i' l«>r which the way was established. Wliat amounts to a temporary suspension of the use of the way is not sullicient. Thus a private riiiht of way created for the use and honelit of certain buildiuf^s is not destroyed Ity a loss (tf the l)Mililini:;s hy liri*. Chew V. Cook, .!!) N. J., p:(|., .{9(5. Banga v. Parker, 71 Me., 458. Where a rii^ht of way is .iijpurtenant (o an estate, the family t)f the owner may use such way. I'owt'i-^ V. Iliirlow, W,\ Midi., .5(17. When a rii,dil of way is •granted I'or a particul.ir jtur- |)ose mentioned in the deed, or is (h'si^nated as a partic- ular kind of way, hut the w.iy is not described by nn«tes and Iciun Is,and is not .iftually in existence at the lime of —72— j^ranf, a way reasonably sullicient for the use and purposes iudicatod passes. If it is dcscrihed as a foot way, it con- voys a way of roasonal)le width and hciirht to acconiinodate foot ])assenjj;cM-s carryinjr; the ordinary l)urdens of foot l)ass(Miii;('is. If it is described as a foot and carriage way in the (U'ed, there is conveyed a way of sullicient width and height to accommodate carriages of the largest size in common use when loaded as wagons are ordinarily loaded with produce or merchandise. Atkins V. Boarduian, 2 Mete, 457. LECTURE VIII. EXTINCJUISHMENT OF HIOIIT OK WAY. A rij;hl ol" way may be extinguished by: 1. A release. 2. By non-user or abandonment. .'>. By unity of possession. 4. By the exercise of the right of eminent domain. I. hkleasp:. Since a riirht of way may be created by grant it may be, as a matter of course, by a like formality, regranted, released and surrendered up to the servient estate. II. NON-I'SKK OR AI!ANI>oN.MKNT. User being sullicient to establish a right of way mere non-user for the same period is sufficient to raise a pre- sumption in law of a release, but since the right can only be established by adverse user, when it is so established, it must be shown that the non-user is owing to some ad- verse act of thi' owner of the servient estate in order to bar the right. lU'iiiiislee V. Fiencli, TCoiiii., lliS. Kmcrson v. Wiley, 1(» Pick., 31(i, 31(>. Eddy V. VhiiHii, 14<) Ma.ss., 171.*^ Wanl V. Ward, 11 K. ('. L., 11.;. —74— 1 1. Iin\v('\ cr, t lie rii;lit of way lias hccii ai(|iiir('(l l)y (It'fil, MH'ic mm iisci" alone, and Ity ilM-lf. I'<»r any length of time, will not impair or (Ideat llic ri;;lit. In that case the noil-user must be shown to have been the result of a use of the servient estate Ijy its owner, adverse to tlie exercise of the riiilit of way. Wit,'Kin.s V. McCleary, 40 N. Y., 34G. Siiell V. Levitt, 30 Hun., 227./ Siiell V. Levitt, 110 N. Y., oi».5. Siiell V. Levitt, 1 L. R. A., 414. The fact as to whether an easement lias or has not been abandoned depends frequently upon the intention of the grantee. Poison V. Ingram, 22 S. C, ")4I. Cro89ley v. Lightowler, L, R., 2 Ch., Api)., 478. There is sometimes an abandonment of an easement by an estoppel en pais. For instance, if the owner of the dominant estate authorizes the owner of the servient estate to erect permanent and valualde improvements upon the servient estate, which make the further exercise of the ri;i;ht of way impossible, he will be held to have abandoned the easement and will be estoppeil from assert- ine; anv riirht thereto. Dyer v. Sandford, 9 Mete, 395. ^ When a rii^ht of way is owned by several persons in common it may be abandoned by either one as to himself, and if so abandoned he cannot afterward^ maintain a riirht —75— ol" action aj^aiiist the others or either ol" t liem, lor oljsl riirt- iii;; such way. Steere v. Timiriy, V.i K. 1., otiS. -^ Bellas V. ranluf, Pa. St., (ISSK). III. TNITV OF TITr.K. Unity of tlMe ami pos.session ol" the doininanl and servient estate in the same person, necessarily e.\tin- <;uishes an easement. No person can he said to have a private right ol' way over any part ol" his own land since he has an absolnte ri«;ht to use any and every part of it as he may desire. But in order that such unity of title and possession ?nay extinguish an easement, the ownersliip of the two estates must he co extensive, ecpial in validity, i|uality and all other circunistaiices of right. Doritv V. Dininiiif^, 7S Mi-., .'isl. -^ Ritger v. Parker, s Cifeii, 14.-), 117.^ Tbouias V. Thomas, 2 C M. & R., ;^4. -^ Morgan v. Meutli, (iO Mich., 2;i8. -A^ When a right of way lias been extinguished l)y unity of title and possession in the same owner, it is not revived l)y such owner reconveying such dominant estate. Clements v. Laniht-it, 1 'raiiiit., liiiS. Morgan v. Meutli, iit» Midi., li.'W. If the grantor in such a case wishes to revive or create such a right, he must do so by express words do- scril)ing the way or other easement, l)y introducing the term in the granting pari: "Appurtenances therewith used and enjoyecl," in which case easements existing in -70— poiiil of fact, l)iil, mtl in p;)iiil of law, will v<*~;l in the j^rantcc. I'laiil V. .hiiii.'s, I AM. iV: l-'Jl., Till. AtUiiis V. HoanliiKiii, l! Mrti;., l")7, 107. A distinction must be noted, however, between ways of necessity and ways of mere convenience. In the former case, although there is a merger during the joint owiuMshii) of the two estates, the way revives upon their severence. Grant v. Chase, 17 Mass., 44i2, 447. Buckley v. Coles, 5 Tauut., 311. Brown v. Alabaster, L. K., 37 Cli. Dlv., 490. When the two estates are held by the same person, but not in the same right, there is merely a suspension cf. the easement while that condition continues. When tht condition changes the easement revives. Thus when A, the owner of a dominant estate in fee, ol)tains a leasehold or life estate in the servient estate, there is a suspension of the right of way so long as the two estates are held by A, l)ut the moment the ownership is severed the right revives. Manning v. Siuitb, »J Conn., 289. Ritger v. Parker, 8 Cash., 14o. IV. EMINENT DOMAIN. A right of way may be extinguished by the exercise of the right of eminent domain. If the use for which the servient estate is taken is incom pat able with a further exercise of the riglit of w;iy, >urli right of wa^' is incident- —77— ally taken also. 'Ihv owiiur ol" the way i'^ rut it led lo riill compensation lor such taking;. Stevenson v. Cliuttuiiooga, 20 Fed. Rei»., oSG. Ross V. Ttionipstjn, 7S Intl., 90. HaktT V. .Johnson, lil Midi., 319. City of Peoria v. Jolinson, oti III., 4."). Ashby V. Hall, 119 U. S., .Jiifj. Webster v. Lowell, 142 Mass., 324. At common law there could 1)6 no extinctioh of a highway. Once a hij;hway, always a highway. But in all of the states there are statutes empowering cities, towns and counties to vacate streets and highways. These statutes prescribe the steps to be taken in order to vacate a street, or highway, and also provide that any damage which an adjoining owner may suH'er by reason thereof" shall be ascertained and paid. The owner of the dominant estate, in the absence of an express or implied agreement, must keep the way in repair, and for that purpose he may go upon the servient estate if necessary. And when the want of repair inju- riously ellects the owner of the servient estate, it becomes the duty of the owner of the dominant estate to make repairs, and for his neglect of duty he is liabli'. Bell V. Twentynmn, 41 E. C. L., 76(5. REMEDY FOR OBSTRUCTION TO PRIVATE WAYS. In case the owner of the servient estate obstructs a private way, the owner of the dominant estate has a remedy at law or in ('(piity, but in addition to these renuMlies he has also a light to go ujjou the servient estate and remove the ol)sl ruftion, if he can do so ;ind not com- mit a breach of the peace. —78— MrC.nl V. Iliuli, lil luwa, XUi, ."Ms. ConipMiiy V. (Joddull, M N. II., ■').'t, ■'><>. v Joyci' V. (Junliii, 7li WiH., tiOT. "^ Stallunl V. CuHhiiJ^, 7(i Cal,, 472. ■^ TUo i»;ut y <'X«'r<'isinj; llic ri^lil of alciliim a nuisance to his projjerty must, liowover, see to it, that, he does no more than is necessary to protect his own rij^hts. If any- tliinj;; is done beyond that, to the injury of the o\yner of the servient estate, he is liable therefor in damages. Heaili V. Williains. 2-') Me., 20!>. It has been held, that in order to justify one in going upon the land of another to aljate a nuisance, he must do so within a reasonable time after the nuisance was created, an«I tliat if he fail to exercise tiiat right within such reasonable time, lie coidd not do so afterwards, but must resort to legal proceedings. Moffett V. Brewer, 1 Green, (la.), 348, 351. In abating a nuisance life must not be endangered, nor must there be a breach of the public peace. Davis V. Williams, 71 E. C. L., 546. LIGHT AND AIU. It is well settled in Kaiilaml that when thcrr has been an uninterrui)ted use of air or light from <»r across tiie premises of another for the n'liui-jic period, an ease- ment therein has been acquin'd. Cross V. Lewis, 2 B. & C, 686, M(«)k V. Miilk, 22 E. C. L., 40). —70— Moort' V. llaWMoi), :; U. & C, .iai', U. S. V. Appl»'t<«ii, 1 Shim., \\)-2. This doctrine dot^s iiol prevail in this coiiiilry Parker v. Foote, ll» Wend., .{OK. Pierre v. Fernald, 26 Me., 4.S(». Miivcrstick V. Sipe, .•{;! Pa. St., .'{tW. Mull. Ml V. Sticker, lit Ohio, St., 1;J."j, 11:.'. In^raliani v. Hutchinson, 2 Conn., .5^4. Hul.hani v. Town, .'W Vt., LWi. Burke v. Siuitli. Git Mich., .•JSii.'^ Ami decisions in this counli'v have i:one to the extent of Ijohlinj;, that when the owner of a house sold the house and retaine(l the adjoining ground, that the grantee did not obtain by an implied grant an easement of light and air over such surrounding lands, and that the vendor could buiUl and wholly obstruct the light from entering the windows that were in the house at the time of the sale. Keata v. IIu^o. 11.5 Mass., 2()t.J(' Haverstick v. Sipe, :>;{ Pa. St., .'JtiS. ^ Burke v. Smith, tilt Mich,, 3S0.-J'-*' Some of tilt' courts in this country, however, hold that when there arc windows in tlu> house sold, fronting upon land retained, that the grantor cannot by building upon tiie land retained darken such winponsil»ility for damaj^es resulting therefrom. RttdfliflH Kxes. v. Hiooklyii, 4 N. Y., lH.j. S, C. 0.5 Am. Dec, 357. I'oiitiac V. Carter, .32 Mich., 1(J4, IMU. CurHon V. Centrul K. R., 35 Cat., 32-5, 333. nrooklyii, etc., v. AmiMtmnf?, t', x. Y., 234, 24'». These authorities make a clear distinction between the natural, usual and ordinary use of laml and an arti- ticial use, hut give no dctinitc rules under which dilfercnt uses are to he cla>^si(ied. It would seem that the natural use to which a mine was to he put was to remove the Miiiierals, and consequently, it is ludd that where the mine owner works his mine in the usual manner and does noth- ing, for instance, to interfere with the natural tlow of the water, thai he is not responsihle for any resulting damage. Smith V. ivfiniiicii, &2 K. C. L., 51.-). Hair.l v. \Viiniiins..ii, lOi) E. C. L., 37G. If on the other hand he well settle(l that the owner of land is entitled to have il supp«trt»'d in its natural condition l)y the adjoin- ing soil, and that all damage resulting to the soil in it> natural condilir»n I'rom an ex<-avation. the jierson makini: I he excavation is liahle. Dyor v. SI. Paul, J7 Minn., t.57. K:irr:in(l v. Miirslicll. .■■,.) .\ . V., 520. 7 — {SO— Mcfiuin' V. Grant, 'J") N. J. L., ;$■")(>. Thurston v. Hjiricook, lli Mass.. lilid. When the fXcaviilioM is tlic s(»lc> ciii'-c ol' the daiuage to the soil ill its natiiial coiidil ion, tlu* ])('ison inakiiiji the excavation is liable for sucii dainai^e without reference to the skill and care with which the excavation is made. And this liability extends to all damage to any right in the soil in its natural condition, smdi as a right ol "way. Foley V. Wyctli, L' Allen, 131, 133. If the excavation is made without due care and rea- sonable skill the person making it is also liable for all damage to improvements upon the land caused l)y his negligence and want of care. City of Quincy v. Joues, 70 111., 231. The right to lateral support is, however, limited to the support required to maintain the soil in its natural condition, and consequently when the pressure upon the soil has been increased by the erection of l)uildings, or other structures, the owner has no right to lateral sui)port against such additional pressure, and if such increased pressure contributes to the damage, the person making the excavation is not liable. Charles v. Rankin, 22 Mo., 560. Wiun V. Abeles, 35 Kan., 85. -a Tunstall v. Christein, 80 Va., 1.^ Suppose damage results to improvements and the im provements have in no way contributed to the cause of —87— tiic (laiiia^o, ill such a case, what is the rule:' It woiihl seem, that in this country, the party makiiif^ the excava- tion is not lial)le for damage to such improvements. Such is uiiiil>tiMlIy the iiilc in Massachusetts. ( Jiliiioic V. Diiscoll, 1132 Muss., !!»!». ^ We do not (•()n>i(l('r that rule, liowever, firmly estab- lished and certainly the Kn<:;lish rule, whicii holds that in such case the i)arty making the e.xcavation is liable for damages to the improvements, commends itself to the reason. Stroyan v. Ivnowles, U H. «& N., 454. Brown V. Kol)l)iiis, 4 H. & N., 18(5. "^ Aurora v. Fox, 78 Iiid., 1. Since a person who makes an excavation upon his own premises is liable for all damages, not only to the soil in its natural condition. i)ul to ini[)royements situateld lo be gross negligence. Aston V. Nolen, on his prenii-es and there shore up his l>uildiui:. or taice any other proper and reasonabh* steps and precautions to l)reveiit injury to such Ituildin;;. Shafer v. Wilson. 44 Md., 20S. Aston V. Xoliiri, t;:5 Cal., 269, 3. He must use such skill and care in the prosecution of the work as a reasonably prudent and careful man would exercise to guard ai^ainst damage to the a. 29. Rowbothom v. Wilson, 8 H. L. Cas., :^4S. Montgomery v. Masonic Hull, 70 Ga., 38. SUB.J.VCKNT SUri'OKT OF LAND. There may be two separate and distinct freehold estates in the same i)arcel of land. One person may own the surface and another the iiiineraN underneath the -ur —90— {'ace. In such a case llio surface owner is still llie owner from the center of tlie earth to the zenith, except aa to the minerals. Zinc Co. V. KraiiUliiiite Co., Hi N. J. Eq., 3iJli, :{41. The mine owner lias, as incident U) his estate, a ri^ht to go upon the hind for the purpose of sinking a shaft, re- moving the minerals and also to make such erections as are necessary for that purpose. Erickson v. Midi. Iron & Land Co., oo Midi., H04. In working the mine suflicient penuauenl support must be left to sustain the surface, au'l if the mine owner fails to provide such support and the surface sul)sides, or caves in solely from the want of such support, he is liable for all damages to the surface and to improvements thereon and erected at the time the minerals were con- veyed. Humphries v. Brogden, M E. C. L., 7.Sf). Erickson v. Midi. Iron & Land Co., .")(• Midi.. <>04. If the subsidence is due in part to the weight and increased pressure of l^uildings erected on the surface, which have been placed thereon since the grant of the minerals, the owner of the mine is not liable. If such buildings were on at the date of the grant he is liai)le, for the reason that he is required to furnish the surface suffi- cient support to sustain it in its nalural coudition in any event, and also to sustain any buildings thereon at the time of the creation of the estate, such support being an easement of necessity reserved by implication in the grant of the mine. -91— Backhouse v. Honoini, U H. Ij. ('as., ")(».'{. Partridge v. Scott, .> M. it \V., Ulio. Anahigous to lutoral and >ul)ja('C'nt support ol' the soil is the rifi;ht of support wliicli the owner of one build- inj; ha-^ in atmlhtT under certain circumstances. For in- stance, il" two l)uildiM Exch., 218. United States v. Api)leton, 1 Suininer, 4i<-. l!iil no servitude for the su|»porl of one biiildin:: by another arises from mere juxtaposition, however l<»n;^ continued. Peyton v. Mayor, etc., 9 B. «& C, 72o. Napin v. Bulhvinlile,.J Rich., 311, 324. PARTY WALLS. A party wall is a wall, which by grant or prescription, is used to support contiguous structures belonging to dif- ferent proprietors. The center line of such wall is usually the boundary line of Ihe .Hljoining lots. Ixit the wall may be wholly on one side of tiic l)ouiier. that a particular wall is a party wall, and there is no cvideiu-e as to the ownership of the soil upon which it rests, such user is prima facie evidence, that the wall and the land upon whicli it rests, are owned in common and that the adjoining owners are tenants in common of sucii wall. Wiltshire v. Sidford, 1 M. & R., 404. Cubitt V. Porter, S B. C, 2o7. Wolfe V. Frost, 4 Saiidf., 72. Weynian v. Ringold, 1 Bradf., ♦U. When, however, it ap[)ears that su(di wall was erected one halt' upon the laml of each adjoining owner, then each —93— owns that [tMi. of tlit' wall staiitliii^ upon hi- own lain and has an easement of snpport in the other half. Matt V. Hawkhis, o Taunt., lio Peyton v. Mayor of London, '.» B. iV- < '., Tl'l'. Slierred v. ('Ihco, 4 Sandf. 4.sn. lUirtoM V. MofViK, ;] Oregon, I'n. In case ea<'h proprietor owns one-half of the wall divided lonptndinally, with no easement of support in the other half, either may pare away, or indeed wholly re- move his half, althouj^h this would leave the remaining; half of little or no value to its owner. Cubitt V. Porter, S B. C, 2.57. When a party wall is owned in coinnion and has he- come so ruinous as to l)e uniit lor use, either owner may tear it down and rebuild it of the same thickness, lenirth and height that it was originally, and the other owner must contribute his share of the cost of the new wall. Stedinan v. Smith, 8 E. & B., 1. Cam|)l)ell v. Meiser, 4 Jolin CMi., 334. LECTURE X. I'AKTY WALLS CONTINUED. When each ])i()|)iietor owns one-half of the wall, with an easement of sui)poil in the other half, each owes to the other the duty of keepiiii;' his half in repair, and neither may do anything that will endanger or weaken it. Either one may rightiiilly, when it is for his interest so to do, lower the foundation or increase the lieight of the wall, and he may also increase its thickness by adding to it on his side. But the owner making any such changes in a party wall, on his own motion, is liable for all dam- ages which may result to the other party therefrom. This is true no matter with what skill and care he per- forms the work. Eno V. Del Vechio, 4 Duer., 53. Brooks V. Curtis, 50 N. Y., 639, 6-44. Aiidne v. Hazeltiiie, 58 Wis., 395. Bradbee v. Christ's Hospital, 4 M. & G., 714, 7(JI. Webster v. Stevens, 5 Duer., 553, 556. Dowliiitr V. Heiinini::, 20 Mil., 179 The change made must not alter essentially the char- acter of (he wall, for instance, must not convert a solid into a hollow wall, or convert a solid wall into one having windows. —95— Phillips V. Bourdinun, 4 Allen, 147. Diiuenlmuer v. Devine, 51 Tex., 480, Volhuers Appeiil, (U Pa. St., 118. It' such a party wall — wiieu each owns one-half with n cross easenieiit of support — is destroyed by the elements suddenly, or through natural causes it falls into such decay and ruin as to make it unfit for use, neither party is obliged to repair or rebuild. Its lej^al existence as a party wall under siudi circumstances may be terminated by either party givini:; the other reasonable notice to tliat etlect. This would be the case, althou<;ii the a£;reement under which it was built, provided that it should continue a party w.ill forever, in the aijseuce ot a covenant to rebuild, in case of its destruction by tJie elements. '' For- ever"" is construed to mean, forever with reference to the continuance of that wall, in other words that it shall con- tinue a party wall durinii its entire existence. Antomarchi v. Russell, G.S Ala., 'JoG. Sherred v. Cisco, 4 Sandf., 480, 48!». Orman v. Day, 5 Florida, 3a"), 392. Partridge v. Gilbert, 1") N. Y., (ioi. The reason i,Mven fur the above ride is that the parties to the a<2;reement have made it with reference to the present value of the property for particular puri)osos and to its present surroundinjrs, and not with reference to a future period beyond the natural life of the wall; that at the end of the natural life of the wall, the value of the property and its surroun!' another (duiracter and description. —96— Tliis const ruction, it would seem, is si ill an ojxmi (|ues- ion in the slate ol" New York. Campbell v. Mesier, 4 Joliii Cii., li'.'A. Schile V. Brokhahus, 80 N. Y., 614. Sherred v. Cisco, 4 Sand., 480. Partridge v. Gilbert, 15 N. Y., 601. Brondage v. Warner, 2 Hill, 145. Tlie supreme court of Mississippi have carried this doctrine to the extent of holding, that when either ol the buildings separated by a party wall is destroyed, such destruction extinguishes the easement of the other pro- prietor in the wall as a party wall. Hoffman v. Kubn, 57 Miss., 746. And the supreme court of Ohio has gone still further and held, that when A and B erected dwelling houses, using a party wall, and owing to the growth of the cit}"- (Cincinnati), the land upon which the houses were built became more valuable for business purposes than dwelling house purposes, that either party upon giving the other timely notice, could tear down such wall, although in good condition and safe for the purposes for whicii it was erected. Hiatt V. Morris, 10 Ohio St., 528. The better opinion seems to l)e, that where a party wall is erected, that there is an implied covenant that it shall be maintained so long as the buildings, or either one of them, is. capable oi" safe and l)eneficial enjoyment and occupation, and that neither party without the consent of -97— IIk' other, can iiilcrrcrc willi -^iidi wall- lo iIm- ollicrs injury. Dowliii^r V. Mi'iiiiiri;,', l!(i .M«i., 17!t. Hradht-e v. Cliiist's Hospital, 4:{ E. C. L., .W8. BroiiilaL'e v. Wariu-r, 2 Hill, 14'). When oiR' ol' lilt' owiu'i- ul' a |)aity wall has iiicrca-tMl its Icniith, or heiirhl, for his own licndil, he caiiiiol coiiipcl tlie other party to contribute to the cost until lie makes use of such addition. The other party must then pay one half the value, not exceedini? one half the cost of such iniprovenient. Sanders v. Martin, i* Lea., (Teiiii.), 213. As we liave seen, when a party wall is owned in common, either may repair and compel the other to con- trihute; whenever the wall is owned in severalty, with a cross easement, it is not so evident how repairs may be enforced. It is very desirable, therefore, that in all party wall contracts, the covenants in regard to repairs should be very full and delinite. A party wall can only be created by deeil, prescrip- tion, or under the statute. A person catinot by merely building a wall one-half u[)on his own land and one-half upon that of a neighbor, create a party wall. List V. Hornbrook, 2 W. Va., .UO. McCord V. Herrick, Is 111., A pp.. 4J.{. When the wall is (treated by deed, the deed should be executed with tlu^ same formalities as a diu'd of real estate and recorded, and thus the rights of all i)arties in interest will be fully protected. This is not necessary, however. —98— A iiu'nioi;in(liiiri in wii ting, signed li.v tlic imilics or their agents lawfully aiilliori/ed, is sufTicient, and indceil if the wall is i)nilt nndcr a i)ar(»l airrecnient, it Itccoincs a l)arty wall. And it lias iiccti held, tiiiil when a parly wall was partially hiult under a i)ar()l ai^reenient, such agreement l)ecaine an irrevocable license under which tlie wall might be completed. Riiidf^e V. Baker, 57 N. Y., 2n9. When a person erects a block of buildings and then conveys them separately to different persons, the walls separating each from the other become party walls. Brooks V. Curti.s, ")<) N. Y., fi3!». And it has been held that when two buildings were supported by a party wall and were afterwards sold to different grantees by metes and bounds, and the boundary line between the parcels was Aoe feet distant from the division wall, such wall was nevertheless a i)arly wall for the support of both buildings. lietiry v. Kock, SO Ky., 391. Iteiner.s v. Y^ouiig, 3S Hun., 33-3. Hanoook L. Ins. Co. v. Patterson, 1(I3 Ind., oSiJ. Tliere are statutes in Iowa and Pennsylvania wliitdi provide that when an adjoining- owner desires to improve his property by erecting a l)uilding thereon, he may l)uild a party wall one-half of which may rest upon the adjoin- ing owners land and thai if such wall is afterwards used — yi» — by siR'Ii ad.joiiiiiiir owner, lie sIimII i»;iy oiu' li:ilf tlif value to thf other owiier. Bertram v. Curtis, .Jl lowu, Ifl. Hart V. Kiuther, 5 S. I'i II., 1. Vnlltiu'r Appeal, •;! Pa. St., lis. Massacliiisetts had a (•()h)iiial statute coiitainiii^ sub- stantially the same provisions. In the ease of Quinn v. Morse, 130 Mass.,317, the siipreiue «<>iirt ol" Massachusetts held that this law was still in force, but the sanie ques- tion arose a second time, and it was held that the statute practically deprived a person of his property without his consent and without due jtrocess of law, and was therefore unconstitutional. Wilkins v. Jewett, Vi\) Mass., 29. It frequently hapi>ens that one of the owners of adjoining lots is anxious to improve his lot by building thereon before I he (.ther owner is ready to improve his, and is willing to be to the entire expense, in the iirst instance, of erecting a i)arty wall and to wait until such wall is used by the other owner to lie ri'iinl»ur--etl tor one- half of the cost of the wall. In case one parly builds a party wall under an agreement embodying such an arrangement, and the wall is afterwards used by the other party bctore there has been any change in the ownership of either lot, no dilliculfy arises as to the rights of both l)arties. But in case either party sells his lot before such wall is u■^(Ml Ity both, the (piestion ari^t's, whether the agreement to pay one half of the cost when the wall is used is a covenant running with the land or a niere per- sonal contract between the parties. This question has —100— 1)0011 raisod in ;i lariK- numlior of t-asos, and this seems to l)o tlio nil«'. Whoii A and 15 a.i;n'«' thai A -hall l)iiild a party wall (>ne-li;iir of wiiicdi shall rosi upon \Vs «;n)iiMd and bolon;:; to H and l)o paid for wlion used \>y hit!i,snch afi;reeineiit is a moro personal proiniso on the pari of l> and is not a covenunt ninuini:' with the land. Wlion tho atifoenionl is in oirocf I hat A shall huild a parly wall, one-half to rest upon H's land, and that H shall have the i)i'ivile^:e of huyinj: and u-iiit: such hall' upon payinj: one half of the cost, such covenants run with the land and bind the vendee of B. Su(di an agreement, iiuw- ever, must be recorded or it will not bind a purchaser without notice. Cole V. Hughes, 54 N. Y., 444. Gibson V. Holden, 115 111., 19!t. Bolph V. Ishaiii, 28 lud., 37. Weld V. Nichols, 17 Pick., 538, 543. Maine v. Cuiuston, 98 Mass., 317. Richardson v. Toby. 121 Mass., 457. Burlock V. Peck, 2 Diier., 90. Piatt V. E<,'fj;leston, 20 Ohio St., 414. Roche V. Ullnian, 104 111., 11. Sharp V. Cliedham, 88 Mo., 498. Keating v. Korf hage, 88 Mo., 524. Toinbliii V. Fish, 18 III., App. 439. Hart V. LyoM, 90 N. Y., 003. Nalle V. Paggi, 72 Tex., Nalle V. Paggi, 1 L. H. A., 3.3 and note. If the agreement rests in ]»arol, it constitutes a mere personal contract, no matter what were its terms or how they were expressed. List V. IIurnl)n..)U. 2 W. Va.. .Ilu. —10] — EASEMENTS OP SUIM'OK^ KTC, WIIKN SEVERAL FEHSOXS OWN SEPARATE TENEMh^S COVERED UY THE SAME ROOF. There may l)e separate owners of diflferent parts of the same Imildin*!;, and in contemplation of hiw, each is the owner of a separate tenement. Such tenement may con- sist of the whoh; of one story or simply of a single room. The rights, (Iiilics and oldigations to each other of parties holding <\\r]\ interests in real estate are by no means clearly delined by the common law. In case A is the owner of the foundation and first story, and B is the owner of the second story and roof, A has an easement in tiie roof of shelter, and 13 has an easement in the foundation of support, and it is well settled that neither may do any overt act which will injure or destroy the easement of the other. But it is by no means certain that either can be compelled to make needed repairs, A in the foundation 'and be in the roof, or that, if A makes repairs in the roof, or B in the t'ouudation, that tlie one making the repairs can compel the other to reimburse him for the cost. Ottuinwa Lodge v. Lewis, 34 Iowa, 67. Pierce v. Dyer, 109 Mass., 374. Lorinj^ v. Bacon, 4 M;iss., 575. Nor is either party liable to the other for damages caused by want of repairs to his tenement. Cheesborough v. Green, 10 Conn., 318. Tenant v. GoUhvin, 1 Salk., 360. The supreme court of Massachusetts holds that while each owner has an easement in the other tenement, which the owner of such tenement may not destroy directl}--, he may by inaction indirectly permit it to be destroyed, for —102— tlie reason, as given by the oou^^that neitlier party is under any obligation to maintain iho l>uilding beyond the period in vvhicii it would naturally fall to decay. Pierce v. Dyer, 109 Mass., 374. In Cheesborough v. Green the court suggests that while the owner of a tenement of this class, injured by the will- ful neglect of tiie owner of another tenement to keep his tenement in repair, has no remedy at law, a court of equity can give full and adequate relief. If the tenements stand to each other in the relation of dominant and servi- ent estates, the lower story of a house having an easement in the roof of the upper story of shelter, for instance, then under the general rule, in the absence of any special agreement, it would be the duty of the owner of the lower story to keep the roof in repair. The cases of Cheesbor- ough V, Green and Pierce v. Dger were based upon the theory that it was the duty of the servient estate to main- tain the easement for the benefit of the dominant estate. This is not. the rule. When separate tenements of this class are created, the agreement under which they are brought into exist- ence, should clearly and fully set forth the duties of all the parties in every emergency that can be foreseen. Whenever parties are about to assume property relations which are not well understood by the community at large, their duties, rights and obligations under such relations should be fully explained to them, so that they may, if they desire, enter into special covenants. Thorn v. Wilson, 110 Ind., 325. Galloway v. Bonesteel, 65 Wis., 70. LECTURE XI. PARTITION FENCES. The rights of adjoining owners in a line, or partition fence are analagons to those of adjoining owners in a party wall, and may, therefore, properly he considered in con- nection with the latter subject. At common law it was the duty of every man to fence in his own animals. He was required to keep them upon his own land at ids peril, and was. liable for their tres- passes upon the lands of others whether such lands were fenced or unfenced, unless it was the duty of the owner of sucii lands to enclose them and the trespass was due to his not having properly performed that duty. Such duty, however, is not a common law duty. 3 Blk. Com. 211. Cooley on Torts, 337. McBride v. Lynd, 55 111., 411. Iii(liatmi)olis R. R. v. Harter, 38 Tnd., 5r)7. Wells V. Belli, 9 Kans., 597. Webber v. Clossoii, 35 Me., 20. Richardson v. Milburn, U Md., 340. Lyons v. Merrick, 105 Mass., 71. Avery v. Maxwell, 4 N. H., 36. Chambers v. Mathews, 18 N. J. L., 368. Tonawanda R. R. v. Monger, 5 Denio 355. Gregg V. Gregg, 55 Pa. St., 227. Star V. Rokesby, 1 Salk., 335. —104- Ricketts v. E. air, or rather to keep his cattle ui>on his own premises. Kn(»x V. Tucker, 48 Me., 37.}. Aylesworlh v. Herrington, 17 Mich., 417. In order that either party may relieve himself from the responsibility of keeping the whole of such fence in repair, there must be a legal division and the part desig- nated, whicii each must maintain. On the other hand, when the entire fence is owned by one proprietor and he is under no obligation, by agreement or statute, to keep it in repair, he can maintain tresi)ass, although occasioned l)y defi'cts in such fence. McJJride v. Lyu that have adoptiMl ihc one <>r the other pointed out. It is due also in part to the tact that some of the courts have not always recognized and followed the rules whicli determine the lial>ility of a land owner when dam- ages result from a natural use of the land, and when thcN^ arise from an artificial use. >^ While one may api)ropriate and use, as we ha^^en, all the surface water to the damage of a- thii^^'rson because such use and appropriation's a natural use of his land, he may not, on the other li^d, add any foul or nox- ious element to the surface w^R and then permit it to <'v;cape from his premises upon those of his neighbor. Mears v. Dole, 135 Mass., 508. IJal! V. Nye, 9!) Mass., 582. Pixley V. Clark, 35 N. Y., 520. Ballard v. Toinliiisoii, L. R., 29 Ch. D., Ilo. Sanderson v. Peiiu, II.'J Pa. St., 120. SUBTERRANEAN WATERS. It is well settled that the right to a natural stream of water on the surface belongs to the proprietor of the ad- joining lands, as a natural incident to the right to the soil it.self, and that he is entitled to the benelit of it as he is to all the other natural rights of the soil of which he is the owner. lie has the right to have it come to him in its natural state, both in (luantity, quality and How, and to pass from his land without obstruction. His rights to sucii a stream in no way depend ui)on grant or iirescrij)- tion. 9 —118— MuHoii V. Hill, r, H. it A(i.. 1. TyltT V. Wilkinson, I Nfason, '.V.n, 4