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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<iht, mere force ol" icinvily. MtMcly plai'iii;; a
lieavy article upon the ground does not annex it, l)ut if the
«;round is in any way prepared to receive tiie chattel, as
wiicM a slone doorstep is placed in position, I hat is siilli-
cient to constitute actual annexation.
Sullivan v. Toole, 126 Hun.,20:{.
Bishop V. Bishop, 1 Kernan, 123.
Walker v. Sheriuan, '20 WtMid., (Wd.
As to the manner and evient that a real fixture must
be attached the rulini;- in the did'eriMit states is not uiii
form. It is held in some of the states that it must be at-
tached in such a manner that it cannot be removed with-
out serious injury to the realty. For instance, the supreme
court of Vermont holds that machinery used in a factory
in order to become a real fixture must be permancMitly
attached to the buildini;; that ifis not suiricient, if it is
merely so attached as to make it steady in operation and
to enable the owner to use it as a nnichine; that the tiaie
character of the article as to whether it is a chattel or real
estate must plainly appear from an inspection of the prop-
erty itself, its nature, the mode and extent of the annexa-
tion and its object and purpose, from all of which the in-
tent of such annexation is indicated.
Hill V. Went worth, 2S Vt., 428.
Sweetzer v. Jones, .% Vt., 317.
To the same elfect are the following cases,
Lacy V. Giboney, 3G Mo., 320.
Swift V. Tlionipsoii, t) Conn., 63.
Wade V. Johnson, 25 Geo., 331.
Gale V. Ward., 14 Mass., 3r,2.
Buruside v. Twichell, 43 N. H., 30(1.
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'I'lic (•(lints ill some (»r llie slates have regarded the
slijrhtest aiiiK'xalioii as sullicieiit, while a few have gone
nearly to the exteiil of holding that a chattel could be
come a part of the realty without being in any manner
attached.
Walker v. Sherman, 20 Wend., 636.
Farrar v. Stackpole, 6 Me., 154.
Strickland v. Parker, 54 Me., 263.
Smith P;ii)er Co. v. Serviii, 130 Mass., 511,
Farrar vs. Stackpole and Strickland vs. Parker are
authorities for the construction of a deed rather than for
the definition of a real fixture. The wording of an agree-
ment made by the parties often determines the true char-
acter of a fixture. It is well settled that parties by their
agreement may impress upon a fixture, or a chattel even,
whatever character they choose. They may agree that
real fixtures shall be regarded as chattel fixtures, or that a
chattel fixture or mere chattels, shall be regarded as a p^rt
of the realty, and the courts will give full force and effect
to their agreement.
Smith V. Wagoner, 50 Wis., 155.
Hunt V. Bay St. &e., 97 Mass., 279.
Titrt V. H(Mt()n, 53 X. Y., 377.
Fratt vs. Whittier, 58 Cal., 126.
Crippin v. M(Mris()n, 13 Mich., 23.
For instance, if the grant describes the property as
having a particular character, as "a Saw Mill," the court
will construe the deed as clearly indicating an intent on
the part of the grantor to convey a saw mill, a particular
saw mill therein designated, and everything in and about
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tlic mill, necossary to its coiiiplelc (Miiiii»iiiciil as a saw
mill, will pass lo the grantee.
Shelton v. Ficklin, 82 Gratt., Til.
Bigler v. Nat'l Jik. 6cv., 2(1 lluii., 520.
McRac V. Central Nat'l Bk., m N. Y., 4S!».
Voorheis v. Freeman, 2 W. & S., IK).
Pyle V, Pennoch, 2 do, 890.
United States v. Appleton, 1 Sum., 4fl2.
On tlie other hand if the grant simply conveys certain
lands and there is nothing in the language used to indicate
that the grantor intended to impress upon the tcnouKMit
•or any part of it a special character, nothing will i);is> 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.
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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 an<l intent nestling;
in his own breast and known only to liinisell", but what
his surroundin«:;s, his conduct and ids acts, declare and an-
nounce to (lie public to be his intention. The manner in
which a fixture is annexed and its adaptability to use are
therefore really tests of the intent of the party niakiufi;
the annexation and only indirectly of the character of the
lixture. And so inllexible is the rule that the intent is
shown by the surrounding circumstances and by the acts
and conduct of the party, that the person making the an-
nexation will not be permitted to testify what his unex-
pressed mental intention in fact was,
Treudway v. Sharon, 7 Nev., o7.
Tate V. Blackburn, 48 Miss., 1,
Manwaring v. Jenison, 61 Mich., 117.
Wlieeler v. Bedell, 40 Mich., 603.
Beiikley v. Forkner, 117 lud., 176.
The intent however is a question of fact for the jury
to lind and not a ([uestion of law for the court.
Seeger v. Pettit, 77 Pa. St., 437, 441.
Although the intent with which a party annexes a
chattel is so important in determining whether or not it
is a real lixture, still a mere intent to make a chattel a
permanent addition to the realty is alone insufficient. The
intent must not only be clearly expressed but there must
be some positive act tending to give effect to such intent
by partially at least annexing the chattel. Materials col-
lected for the purpose of erecting a permanent building,
continue personal property until wholly or in part con-
structed into such building.
—14—
Cook V. Whiting, 10 111., 480.
Woodinun v. Pease, 17 N. H., 282.
Huriisi.le v. Twit<'lu'll, 4:5 N. H., 390,
Joliiisori V. MeliHlly, 4.S Ta. St., 308.
Exparta Astbury L. R. 4 Ch. App., 030.
Miller v. Wilson, 71 Iowa, GIO.
Contra.
Conklin v. Parsons, 2 Plnney, 264.
Ripley v. Paige, 12 Vt., 353.
Spruhen v. Stout, 62 Wis., 617.
The converse of the above rule holds true. When a
chattel has been made a real fixture, a mere intent to sever
it and reconvert it into a chattel is of no force or effect.
The intent must be evidenced by an actual severence.
Rogers v. Brokaw, 2-5 N. J. Eq., 496.
Tate v. Blackburn, 48 Miss., 1.
Henainway v. Cutler, ol Me., 407.
In the absence of proof to the contrary, courts will
presume that property, real or personal, retains its char-
acter unchanged. Therefore, when the contention is the
character of a fixture, it being conceded that it was once
personal property, t!ie burden of proof is upon the party
claiming that it has lost its character as a chattel and has
become real estate, to show, by a prei)onderance of evi-
dence, tliat such is the fact.
Capeu V. Peck ham, 3o Conn., 88.
Hill V. Wentwortb, 28 Vt., 42S, 437.
LECTURE II.
FIXTUKES CONTINUKD.
When the owner of realty annexes a chattel thereto
and continnes to be the absolute owner ol' the realty it is
ol" no iini)ortance, as a matter of course, wliether such fix-
ture is a chattel or a real fixture, since in either case the
title remains in the same person. If such owner, however,
sells the real estate, or mortgages it, or dies, then the
character of the fixture becomes at once important, since
in case it is a real fixture, it belongs to the vendee, or the
mortgagee, or the heir, while if it is a chattel fixture, it
belongs to the vendor, the mortgagor, the executor or
administrator. Again, if the fixture is annexed by a ten-
ant for years or for life, its character is at once important
since upon tlial will depend its ownership. If it is a real
fixture it belongs to the landlord or the remainder man, if
a chattel, it belongs to the tenant or his executor or
administrator. The character of a fixture is also important
in dclcnnining the rights of two other classes of persons:
the vendor of the chattel, who claims a lien for the pur-
chase i)rice, or the mortgagee of the chattel and the mort-
gagee of the realty, and the vendor and vendee of the
realty where it has been sold under contract and default
has been made by the vendee.
—16—
It will he more satisfactory to consider those coiiflict-
iiiii interests separately, hut since the relation between
the vendor and vendee, niortgaf:;or antl mortgagee, heir
and executor and the vendee in default under a hind con-
tract and the vendor, is substantially the same, we shall
group them together.
As we have seen, the important test, to which all
others are subordinate, is the intent of the party annexing
the fixture at the time he annexed it. And since every
man is [)resumed to be inlluenced by those motives which
would intliience other men under like circumstances the
relation which the i)erson bore to the title of the realty at
the time he annexed the fixture is a very important and
often the controlling factor, in determining the character
of the fixture. It goes without saying that the absolute
owner of realty in adding betterments thereto, would do
so with a very different purpose and intent than he would
have, if he was a mere leaseholder of the premises for a
short term of years.
It may be stated as a general rule, that when the
owner of the realty annexes a chattel and after such an-
nexation it is to the interest of the owner, that it should
remain affixed, and it would be to his detriment as the
owner of both the realty and the fixture to remove the
fixture, that it will be presumed he intended to make such
fixture a permanent addition to the realty, that he intended
it to l)e a real fixture.
Fisher v. Dixon, 12 CI. and Finl., 312.
Cliraie v. Wood, L. R., 4 Ex., 328.
Holland v, Hodgson, L. R., 7 C. P., 328.
Meux V. Jacobs, L. R., 7 Eng. & Irish App., 481, 490.
Dudley v. Foote, G3 N. H., 57.
Oliver v. Brown, SO Me., 542.
When tiie owner of realty constructs a building for
—17—
iiiaiiiiractiirin^c i»nri)oses aiul it is so occupied, all the ma-
chinery and appliances used in conneclion with the busi-
ness of inanuracturiiiji, whether attached in any way to the
building or not, become a jjart of the realty and a sale or
mGrt«!;aj5e of the realty and such factory carries with it
such machinery and appliances without any mention
bein<:; made thereof.
Voorhees v. MeGinnis, 4.S N. Y., 27.S.
Pierce v. George, 108 Mass., 78.
Parsons v. Copelaiid, 38 Me., oST.
Otuniwa Mill Co. v. Hawley, 44 Iowa, oT.
.Stockwell V. Campbell, 3!» Conn., 3G2.
Hoskin v. AVoociward, 45 Pa. St., 42.
Voorlieis v. Freeman, 2 W. A: S., 116.
And wdien machinery of a permanent character and
essential to the business for which a buildinji is used are
placed in such building by the owner of the realty, and
the machinery is used therein, it will pass bj'^ a convei^ance
of the building, although it may be severed and removed
without material injury to the machinery or to the building.
Winslow V. Merchants Ins. Co., 4 Mete, 306.
Greeu v. Ptiillips, 26 Gratt., 752.
Hart V. Sheldon, 34 Hun., 38.
Lyle V. Palmer, 42 Mich., 214.
Parsons v. Copeland, 38 Me., 537.
Foote V. Gooch, !>6 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., <i55.
Kimball v. Adams, 52 do, 554.
Hunt V. M. P. R. R., 76 Mo., 115.
Graliam v. R. R. Co., 36 Ind., 463.
Preston v. R. R. Co., 70 Tex., 375.
—21—
This is llie rule alllioiigh the attachments were made
by one in possession under a claim of title.
Graham v. Coiinersville R. R., 36 Irul., 4()3.
Stilluian v. Hamer, 8 Miss., 421.
Hunt V. M. P. R. R., 76 Mo., 115.
Contra.
Atchison R. R., (fee. v. Morgan, Kan., (1889).
In case the annexation is rightl'ully made by a
stranger under an agreement with the owner of the soil,
the fixture will remain personal property, unless so an-
nexed as to make the removal an injury to the realty.
Memphis Gas Liglit Co. v. State, 6 Cald., 310.
Ashman v. Williams, 8 Pick., 402.
Yater v. Mullen, 23 Tnd., o62.
Yater v. Mullen, 24 Ind., 277.
Raddin v. Kidder, 111 Mass., 44.
Fuller V. Tabor, 39 Me., 519.
Ingalls V. St. Paul's M. & M. R. Co., 39 Minn., 479.
When a chattel is annexed by a part owner of the
realty, it continues personal property. The following is
the rule governing this class of cases as laid down by the
supreme court of this state : Where the ownership of the
land is in one person and the thing affixed in another, and
in its nature it can be moved without injury to the land,
it cannot in contemplation of law l)ecome a part of the
realty, but must necessarily remain personal property;
and the fact that the owner of the thing annexed is the
owner of an undivided interest in the land, does not
change the rule, a thing cannot as to an undivided
interest, be personal property and as to another undivided
3
—22—
idtcrcsl. Iti' ii'iil t^slalc, it must, be wholly one or the otlier.
AdaiUH V. Lee, HI Mich., 440.
Robertson v. Coi-viett, .'50 Mich., 777.
Scinlder v. AiHh'r.soii, "iJ Mjcli., l'2'2.
OKN A.MKNTAI, AND IIOUSKIIOI.I) l-I.\TURES.
Aiul in this coiinectioii we call your attention to that
class of fi.xtures known as ornamental and household.
It is a <.jeneral rule that articles of household use, such as
1:11111)-;, '"handeliers aii<l other contrivanees for lighting
houses, and aj»i)aratus for heating houses, which are
all ached by their mere weight, or are fastened by hooks,
or by being screwed upon gas pipes, are regarded as furni-
ture and are personal property.
Vaughn v. Haldeman, 33 Pa. St., 522.
Jarechi v. Philharnioiiie Scy., 79 Pa. St., 403.
Roj^ers v. Crow, 40 Mo., 91.
Towne v. Fiske, 127 Mass., 12o.
There are, however, cases which hold that such
li.xtures are to be regarded as permanent parts of the house,
unless the contrary intention of the person making the
annexation is made to appear.
Johnson v. Wiseman, 4 Mete. (Ky.), 357.
Keeler v. Keeler, 31 N. J. Eq., 181.
Fratt V. Whittier, 58 Cal., 12G.
DEEDS.
In England where they have no registration laws it
has always been held, that charters and deeds and other
—2:3—
evidence of title in the liaiids oi" the grantor, or devisor,
l)ass with the estate to the grantee or legatee.
Lord Buckliurst's Case, 1 Co., 1.
The reason for the rule is, that such deeds are neces-
sary evidences of title and are valuable to the owner of the
estate and to no other person, and raay be regarded as
essential to the quiet and undisturbed enjoyment of the
estate, as Lord Coke expresses it, they are " the sinnews
of the land/'
There are no adjudicated cases upon this subject in
the United States. Registry laws are universal and they
make a certified copy of the record evidence. It is prob-
able, however, that if the grantor should have in his
possession an unrecorded deed that the grantee could
compel him to surrender it up or place it on record. And
it has been held in Alabama that a land warrant author-
izing the location of a certain amount of government
land is real estate, and goes to the heir and not to the
executor.
Atwood v. Beck, 21 Ala., 590.
The English courts have gone so far as to hold that
the box in which title deeds are kept is real estate, and is
not subject to larceny.
1 Hale 5, 10.
Deeds, however, do not go to the heir strictly because
they are allixed to the realty, they are not allixed, but
because they are essential to the enjoyment of the estate
and are therefore regarded as a part of it.
LECTURE III.
FIXTUHKS AS 1!P:T\VEKN LANDLORD AXD TENANT.
Iir consideriiij; the character of a fixture annexed to
the leasehold estate by the tenant, it is important to bear
in mind the contract relations existing between the tenant
and his landlord, as to the estate. The consideration
which the tenant is to render to the landlord in the way
of rent we do not consider, since it has nothing to do with
the question we are examining. In the absence of an
express agreement there is an implied covenant on the
part of the tenant, that he will commit no waste and that
he will at the end of the term surrender up the premises
in the like condition in which he received them. He
must in short do nothing during the term which will work
a detriment to the estate, but on the other hand he is
under no obligation to enhance its value; therefore, in
most cases, the character of a fixture annexed by a tenant
is determined by the answer given to the question, can it
be removed and leave the premises in the condition in
whicli they were received? If that question is answered
in the aliirmative, it is a chattel fixture, if in the negative,
it is a real fixture.
Heffuer v. Lewis, lli Pa. St., 302.
Lemar v. Miles, 4 Watts, 330.
Dist. Town of C. v. Morebeail, 43 Iowa, 466.
—25—
Walton V. Wray, 'A Iowa, 't'M.
Melhoj) V. ISIienhart, 70 Iowa, <i85.
Ilarkey v. Cain, (59 Texas, 140.
It does not follow, however, that every betterment
made by the tenant can be removed when such removal
would leave the premises in no worse condition than he
received them. When tiiere are buildings upon the
premises all repairs made to such ])uildiiiirs become a
part thereof and cannot be removed. Such repairs are
not separate fixtures but a part of the building considered
as a fixture.
Murry v. Moross, 27 Mich., 203.
State V. Elliot, 11 N. H., o40.
Leach v. Thomas, 7 C. P., o27.
Gaffield v. Hapgood, 17 Pick, 192.
Repairs to a building do not include additions which
can be considered and treated as separate structures, nor
partitions dividing rooms in the building, providing such
additions and partitions can be removed and leave the
building in the same condition it was originally''.
Aside from additions to a building and temporary
partitions which can be removed and leave the building
in its original condition, the tenant cannot make additions
or change the interior arrangements of a building with-
out the consent of the lessor, and if he erects such addi-
tions and makes such changes with his consent, they are
regarded as repairs or real fixtures and cannot i)e removed
by the teiumt.
O'lJrien v. Kusterer, 27 Mich., 289.
Bucklaud v. Buttei field, 2 B. & B., 54.
— 2G -
JenkhiK-s v. CJethorey, 2 John «fe Hem., 520.
Stockwell V. Murks, 17 Me., 4-j").
Powell V. McAshan, 28 Mo., 70.
Siiiidi V. Whitney, 147 Mass., 479,
To show liow hroiid the rule is in favor of the tenant,
we ([iiote tlio following language from a recent decision of
the supreme court of this state:
''Engines and boilers erected b}'^ the tenant of a min-
ing lease on brick and stone foundations, and l)olted down
solidly to the ground, and walled in with brick arches;
and dwellings erected by the tenant for miners to dwell
in, standing on posts or dry stone walls, — when such
machinery and building were intended to be merely
accessory to the mining operations under the lease, and
when they can be removed without material disturbance
to the land are trade fixtures, and may be removed at or
before the termination of the lease."
Conrad v. Saginaw ^Mining Co., 55 Mich., 249.
Tiie rule in other states is similar, the tenant may, in
short, remove all improvements made by him, the re-
moval of which will not materially injure the premises or
put them in a worse plight than they were when he took
l)Ossession.
\V lilting V. Brastow, 4 Pick., 810.
WHKX FIXTURES ARE TO I!E REMOVED BY TENANT.
The tenant must remove the fixtures annexed by him
before or at the expiration of his lease, and if he surren-
ders up possession of the premises before such removal,
It will l)e construed as conclusive proof of his intent to
—27—
inala' such li\hirr ;i itcniiaiicnl acression Id tlic frally.
ami lie will not he ixTiiiillcd al'tci'wanl to n-iiiovc I hem,
even il" the owner ol" tlie premises shoiihl sever tlii-m ami
convert tliem into personal property.
Stokce V. Upton, 40 Midi., 5sl.
Ericksoii v. Jones, 37 JMiiui., 459.
When iixtiires are not removed by tlie tenant diirini;
his term and he takes from liis landlord a new lease for a
Cnrther term, it is held by some of the courts that the
new lease is virtually a new lettin<i; of the premises in
their then condition and that if there is no reservation of
the (ixlures maile by the tenant he abandons them and
cannot during his second terra remove them.
Marks v. Ryan, 63 Cal., 107.
AVutri.ss V. Nat'i B'k, 124 Mass., 571.
Lough ran v. Koss, 45 N. Y., 702.
Hedderich v. Smith, 103 Ind., 203.
Other courts hold that the new lease is in fact an
extension of the first term, and the two terms are to be
considered as one holding, so far as the tenant's right to
the iixtures are concerned, and therefore the time within
which the tenant may remove the fixtures erected by him
has simply been extended by the second lease.
Kerry. Kingsbury, 39 Mich., 150.
Second Nat'l B'k v. Merrill (Wis.), 34 N. W., 514.
Davis v. Moss, 4S Pa. St., 340.
If, however, the tenant holds over with tho consi>nt of
the landloi'd and his lease I hei'ebv Ix'comes a lease from
—28—
year (o year, liis ri<j;hL to remove fixtures annexed during
the original term is continued during tlie time he holds.
Weeton v. Woodcock, 7 M. W., 12.
Allen V. Kennedy, 40 Ind., 142.
The rule tliat the tenant must remove fixtures during
his term is subject to this exception, that if the term is
uncertain, depending upon the happening of an uncertain
or contingent event, or upon the will of the lessor as in
a tenancy at will, that in such a case, where the term is
terminated by the happening of such contingent event or
by the act of the lessor, the tenant will have a reasonable
time thereafter to remove his fixtures.
Antoni v. Belknap, 102 Mass., 193.
Haflick V. Stober, 11 Ohio St., 482.
But a tenant at will, not having an assignable estate,
cannot confer upon his assignee a right to remove fixtures.
His assignment terminates the estate and is an abandon-
ment of the fixtures to the lessor.
Dingly v. Buffum, 57 Me., 381.
It is only, however, such fixtures that the tenant has
rightfully annexed to the premises that he can remove,
buildings, additions and chattels wrongfully annexed be-
come accessions to the realty and cannot be removed.
Again, when at the execution of the lease there was an
existing mortgage upon the premises, the rights of the
tenant are subject to the rights of the mortgagee and the
mortgagor or lessor cannot confer upon the lessee any
greater rights than he himself possessed, and if the tenant
annexes fixtures to the leased premises and does not
—29—
remove them before foreclosure, he thereby looses his
right U) remove them.
Stafford v. Adair, .57 Vt., 63.
Griffin v. Marine Co. 5ii 111., 130.
Wight V. Gray, 73 Me., 297.
Pierce v. George, 108 Mass., 78.
Haflick V. Stober, 11 Ohio St., 482.
In case the tenant does not remove a fixture during
his term, those fixtures which would have been real fix-
tures if tliey had been annexed by the owner of the soil
become such when abandoned. AVere they during the
term real fixtures or were they chattel fixtures? In other
words were they from the time of annexation real fixtures,
a part of the realty, or did they continue to be chattels up
to the moment of abandonment and by that act become
real fixtures? The courts in the difierent states have not
given the same answer to these questions. Some courts
hold them to be real fixtures.
McNally v. Connelly, 70 Cal., 3.
Griffin v. Marine Co. &c., 52 111., 130.
Others that they are chattel fixtures and may be
levied upon as such.
Melhop V. Meinhart, 70 Iowa, 685.
HefTner v. Lewis, 73 Pa. St., 302.
Leiuar v. Mills, 4 Watts, 330.
Tills question becomes of some importance between
landlord and tenant when considered with reference to
the proportion wliich each should pay of the taxes assessed
upon the land and upon the improvements made by the
tenant. It is well settled, that in the absence of any
—30—
special asi'oomeni, (he landlord is liable for all the taxes
assessed upon the land and the tenant for those assessed
upon the improvements, and if only one assessment is
made and the taxes are paid by the tenant, he can charge
the landlord with his equitable proportion only.
Yeo V. Leaman, 2 Sir., 1190.
Hyde v. Hill, 3 Durnf & East, 211.
Watson V. Home, 7 B. &. C, 285.
Smith V. Humble, lo C. B., 321.
Mavo V. Carrington, 19 Grat., 74.
When the statute provides that property shall be
taxed as real and i)ersonal without designating what shall
be considered as belonging to either class, then of course,
the character of any particular property must be deter-
mined correctly by the rules of the common law, for real
estate cannot be taxed as personal property nor personal
property as real estate.
Richards v. Wapello Co., 48 la., 507.
It is competent for the legislature, however, to pro-
vide that any particular class of real estate, for instance
machinery, shall be assessed and taxed as personal prop-
erty, and a building as real estate.
Johnson v. Roberts, 102 111., 655.
Milligan v. Drury, 130 Mass., 428.
When, however, a building is personal property be-
longing to one, and the land upon which it stands belongs
to another, it should be listed and taxed separately, and a
tax upon the land in such a case would not be a lien upon
the building.
31
Russell V. City of New Haven, ol Conn., 2-50.
Parker v. Red field, 10 Conn., 490.
Gllkerson v. Brown, (51 111., 486.
Witherspoon v. Nichols. 27 Ark., 332.
The rule as to the character of fixtures between tenant
for life and the remainder man is not as favorable to the
tenant as that between landlord and tenant for years.
The reason given for the distinction is the fact that the
remainder man is usually near of kin to the tenant for
life, who is, as a rule, tenant by courtesy, or tenant in
dower. The reason applies only to a class and is there-
fore of little value. Indeed it does not apply to all of
that class. There are many tenants in dower who are not
of kin to the remainder man, widows who were during
marriage step-mothers to the heir-at-law, second wives.
And a tenant by courtesy may have children, heirs by a
former marriage, and no living heirs to the estate. The
true reason we are inclined to think is found not in his
relationship to the heir to the estate, but rather in his in-
terest in the estate itself. We have seen that the princi-
pal test in determining the character of a fixture is the
intent with which it was annexed to the realty. It is to
be presumed that when the owner of realty annexes a
fixture which it is to his pecuniary interest should be a
permanent addition to the realty, that he intends to make
it a permanent addition. That on the other hand it is not
to be presumed that a tenant for a term of years intends
to part with the title to valuable personal property for the
sole benefit of the landlord, and that although chattels
may be injured in the removal and be less valuable after
removal than in position, as between obtaining a little
something or nothing, it is to be presumed that the tenant
intended when the annexation was made, to remove them
—32—
and save for himself what lie could. The position of the
tenant for life is different. So far as he individually is
concerned, his estate lasts forever, it is only terminated
l)y liis death. He can have no personal interest in the
removal of fixtures at the end of his term. The only in-
terest he can possible take in the matter is the welfare of
his heirs. Whatever addition he makes to the permanent
betterment of the estate he will be permitted to enjoy all
his life and therefore there is the same reason for findinti;
that he intended such betterment to last and continue
throuii;!! his term as there is in case of the owner in fee.
And if for life, why not permanently?
Cannon v. Hare, 1 Tenii., ch. 22.
Lawton v. Lawton, 3 Atlc, 13.
Dudly V. Ward, 1 Ambl., 113.
An examination of Lawton v. Laioton, and Dudley/
V. Ward, shows that the exception to the general rule in
those cases is based substantially ui)on the princijile that
it is good public policy to encourage trade and manu-
facture by giving to the tenant or his representative
whatever has been annexed to the land as a trade fixture.
It is evident, however, that the rule is not as liberal as
that between huidlord and tenant, and the right to remove
buildings is limited to buildings erected for purposes of
trade and does not extend to other buildings.
Haflick V. Stober, U Ohio St., 482.
McCullough V. Ivine, 13 Pa. St., 438.
aiidden v. Bennett, 43 N. H., 30G.
ORN.\MENTAL AND DOMESTIC FIXTURES.
When the tenant for life annexes fixtures merely for
—33—
(jnuuMcnt, and it (Iocs not appear that he intended to
make them a part of the freehold, they retain the (diarac-
ter of personal proi)erty, but when such lixtnres are an-
nexed because tliey are a part of the architectural design
of the house, they cannot be removed after such annexa-
tion by the tenant or his representative.
C'Et?i't?«<^urt V. (Jre-rory, L. R. 3 Ecj., 381.
Suedeker v. Warriiit?, 12 N. Y., 170.
Rogers v. Crow, 49 Mo., 91.
The tenant for life cannot remove buildings of a
permanent character which are erected to enhance the in-
come of the estate merely and are evidently designed as
permanent additions to the realty.
Doak V. Wiswell, 38 Me., 5G9.
Gliddeu v. Bennett, 43 N. H.. 306.
Clemence v. Sture, 1 R. I., 272.
RAILROAD ROLLING STOCK.
The question whether rolling stock is to be regarded
as real estate or personal property has frequently been
before the courts, and the rule is far from being uniform
in the several states. In Maryland, Pennsylvania, Geor-
gia and Kentucky it is held to be real estate.
Gue V. Tide Water, Canal Co., 24 How., 257.
Younguian v. Klinira R. R., 65 Pa. St., 278.
Mapon R. R. v. Parker, 9 Ga., 377.
PhillipH V. Winslow, 28 B. Mon., 431.
In New York, New Hampshire, New Jersey and Ohio
it is held to be personal property.
Randall v. Elwell, 62 N. Y., 521.
—34—
Hoyle V. ritt.sbiug 11. 11., 54 N. Y., 314.
Williamson v. N. J. H. II. R., 29 N. J. Eq., 311.
Hoston R. R. v. Gilmore, 37 N. H., 410.
Coe V. Columbus R. R,, 10 Ohio St., 372.
Ill Arkansas, Illinois, Missouri, Nebraska, Texas and
West Virginia the subject is governed by statute.
LECTURE IV.
EASEMENTS.
An easement is a liberty, privilege or advantage with-
out profit which the owner of one tenement has, as such
owner, in a neighboring tenement, existing distinct from
the ownership of the soil.
The essential qualities of easments are :
1. They are incorporeal,
2. They are imposed upon corporeal property.
3. They confer no right to a participation in the
profits arising from such property.
4. They are imposed for the benefit of corporeal
property.
5. There must be two distinct tenements, the dom-
inant, to which the right belongs and the servient, upon
which the obligation rests.
Wolfe V. Frost, 4 Sand. Ch., 77-95.
Huyck V. Andrews, 118 N. Y., SI.
Huyck V. Andrews, 3 L, R. A., 789. ^
Clark V. Glidden, GO Vt., ^02. ---
This definition does not include the rigiit of the pub-
lic in a highway, also called an easement, and easements
attached to a person, called easements in gross. These
—36—
are (lesi{;iiiito(l easements for llie want of a better term,
but they are not true easements. Tliey are imposed upon
corporeal property, for the benefit of the public and not
for tlie use and advantage of the owner or owners of
some particuhir estate. ,
. A right of way across one tenement, for the use and
benefit of another tenement, is an example of an ease-
ment.
EASEMENTS, HOW CREATED.
Being an interest in land an easement can only be
acquired, by grant, prescription or custom.
"When created by deed it may be created by an ex-
press reservation in the deed conveying the tenement.
Thus where A owning two estates conveys one to B, he,
may reserve a right of way across such estate for the
benefit of the estate not conveyed ; or it may be created
by a grant in the deed, as where A and B own separate
tenements A may grant a right of way across his tene-
ment for the benefit of B's tenement.
Cayle v. Parker, 97 N. C, 271.
2 Wash R. P., 303.
Whether an easement is created or not by the ex-
press terms of a deed, that is by express grant or by an
express reservation, depends in each case upon the con-
struction which the court gives to the terms used in the
deed. (Questions of this kind frequently arise but they
are solved in each instance by an application of the rules
governing the construction of written instruments, by
which the court ascertains the purpose and intent of the
parties to the grant. The fact that the question involved
is the creation ol" an eii><enieii( does not vary or inoilify
those rules.
Hammoii,! v. Sohiff, 100 X. C, IGl.
Easements may, however, be created by deed when
there is no express grant and no express reservation ; they
may be granted or reserved b}'^ i?npUcation.
It is a general rule that when a person grants an
estate there is conveyed with the estate as appurtenant
thereto any right necessary to the enjoyment of the
estate granted. For instance if A owns lots 1 and 2, and
conveys lot 2 to B and there is no public or private way
to lot 2 except over lot 1 or other private property, the
grant conveys to B a right of way over lot 1, called in
such case a way of necessity.
2 Wash. R. P., 302.
Boiul V. Willis, 84 Va., 7!>6.
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, .■{<!4.
The general rule as toimi)lied grants ami reservations
of easements is, that a grant by the owner of a tiMiement
—40—
as it i-- tlicn used and enjoyed, will pass to the grantee all
those apii ireul and (M)ntiniioiis easements wiii(di are
necessary I (» the rciisoMable (Mijoyinent of the property
iriMiilcd. and which at the tini" of the ii;rant have been,
and arc then used by the owner of the entirety, for the
henedl of the part i^ranted, but in order to f:;ive rise to a
reservation of an cxistinir; easement or (jnasi easement,
where the deed is silent, the snrronndiiii^ (;ircnmstances
and the situation of the property and the necessity for the
existence of the easement must be such, as to leave no
reason to doubt that the parties intended that the ease-
ment should exist and the property be used and enjoyed
with reference to the continued use of such easement, and
that in all other cases, if the grantor intends to reserve
any right over the tenement granted, he mu^t reserve it
expressly in the grant.
Wheeldon v. Burrows, 12 Cli. Div., .'^1.
Shoemaker v. .Shoemaker, 11 Abbott N. S., 80.
Burns v. Gallagher, 62 Md., 4(>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, <! Mod., 11*5.
Cromptou v. Riehardg, I Price, '11.
—41—
Rrakely v. Sharp, 10 N. J. E<i., 2(M>.
(^ will 1:111 V. Nuble, 75 ('hI., i")<l.,
Easements are sometimes designated as continnons
and disfontinuous, A continnons easement is one that is
enjoyed witliont any act on the part of an individual, as a
water course, a sewer, and the like, while a discontinuous
easement is one the use and enjoyment of wiiich de[)ends
upon the act of an individual, such as a rij^ht of way.
.laiuiiica, S:c. v. Chandler, U Allen, 15!», 16-1.^
Lapiiiaii V. Milks. 21 N. Y., 505. y.
Morgan v. Meuth, 00 Mich., 23S.
It is held tiiat a continuous easement, if not described,
will pass with the dominent estate by an implied j^rant.
The reason lor this rule is found in the supposition that
such easements must have been known to the vendor and
vendee at tlie time of the sale which must have been made
with reference to liiem, while a discontinuous easement
ni'ed not have been known to the vendee and he nee<l not
have made the purchase having; that advantaire in mind.
The reason fails and with it the rule it the discontinuous
easement is of the same open and notorious character as a
continuous easement.
Watts V. Kelsom, Ch. App. Cas., 165.
Lauyley v. Hainnioiul, L. R., 3 Exeh., 102.
Glave v. Harding, .{ H. & N., 937.
rhillips v. Phillips, 48 Pa., St., 178.
Cannon v. IJoyd, 7;{ Pa. St., 17!».
Howell V. Estes, 71 Tex., 0!M>.
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 <i;rant,
the evidence of which, thinimh lajise oC time, has been
lost. The court inters I'rom I he surrounding circumstances
and the acts of the i)arties, from the oi)en, notorious, ad-
verse and continuous enjovnienl ol" the rifrht for the
re(piisite period, thai th(; riiilil, originally, was created by
grant. Anciently a person claiming an easement by pre-
scription was required to show that he or his grantors had
used and enjoj'ed it from a time " whereof the memory of
man runneth not to the contrary." Now, however, in this
country, the nature, ([ualities and the duration of the use,*
which will establish an easement by prescription, are pre-
cisely the same as are necessary to give title to land by
adverse possession.
Haag V. Delorme, 30 Wis., 591, 598,
Ward V. Warren, 82 N. Y., ^fi'). ^
The period of adverse user necessary to establish the
right by prescription varies in the different states.
When the right is once established by prescription
the weight of authority seems to be that the presumption
of a former grant is conclusive and cannot be overthrown
l)y showing that in fact there was no grant, although there
are authorities to the contrary.
Ward v. Warren, 82 N. Y., 265, 268. -^
Garrett v. Jaclcsou, 20 Pa. St., 331.
Cont7'a.
See cases cited by Wasbburu on Easement, p. Ill, 113.
RV CUSTOM.
No true easement can be acquired by custom l)ut cer-
♦
— 4:i-
laiii ri;:;lils Imloii^iiijr to llic iiili iltituiits ol" ;i purliciilar
locality, villaiic or mM';;lil)orlioo(l may We thus acquired.
Tlio niaiuier iti wliicli a ri^ht is a«'<iuiri'<l by custom ami
an oasi'MUMit hy pr(>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 an<l extent of the j;rant, and
whether reasonable or unreasonable is of no moment,
since the [)arties were at liberty to bari^ain with their own
as they saw proper. But in the case of custom there being
no grant and therefore no limit fixed l)y the parties
alfected, the court determines the limit and rejects the
custom, altogether if unreasonable.
Locliwood V. Wood, (; Q. Ji., o()-(;4.
Jones V. Robin, Hi Q. li., (iiiO.
Cortelyoii v. ViinBurnt, li Jolin.s, 3')7.
Donell V. Clark, 19 Me., 174.
Nudil V. Hobb.s, 17 N. H., 524.
Roger.s v. Brentoii, 10 il. B., 2(1-60.
Fetcli V. Rawling.s, 2 H. Bhick, 8!«.
Sownby v. Coleman, L. R., 2 Exch., f)o.
There are easemenL wliicii a municipal C(»rp(>ralion
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<e.
Whoeler v. Wilder, 01 N. 11., 2.
Prt'scott V. VViute 21 Pick., 341.
Durfee v. Garvoy, Ciil., (1H89).
The use of ;iii ('mscimciiI iiiiisl he confined strictly to
the purposes for which it was granted.
Noyes V. Hemphill, o8 N. H., r,30.-^
Kichanlsoii v. Pond, lo riray, .'587. >
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<l to each ineniher of liie public, includin;:; the owner of
the servient estate. The dominant estate may l)e re-
«!;ardetl as any estate, which the corporation holds for the
use and ijenefit of the public, such as a public square, any
public building, and the like, or the easement may be re-
garded as held in gross by the corporation. The distinc-
tion is of no practical importance. It is well established,
that for any interference with the use of a public way,
atl'ecting the pnbli(t at larixe, that a riirlit of action belongs
to the public in its corporate capacity, and equally well
established, that if su<-h interference injuriously allects in
a special and exceptional manner any particular person,
such person has a rii^ht of action to recover the special
and personal damage sullered by him.
firigsiiy V. Cleur Luke Co., 40 Cal., 406. -^
Taylor v. Boston Water Power, lli Gray, 41o, 4l!J.
PliiladelpJiia v. Collins, f,s Pa. St., Itt7, 122. ^
PiMiiLsylvjiiiia V. Wheeling liridj^e Co., 13 How.,olS, oG4.
Ro.ss V. TlioMipsoii, 7S Iiid., !)(».
In a pul)lic way, therefore, each member of the com-
munity has a twofold interest. He is interested as a
member of the public to the same e.\tent as every other
member, and for violation of his rights as such member
action'must i)e maintaine(l l)y the corporation. Hut he is
also interested as an individual separate and apart from
the public. Ill' has a private and individual right to use
Iho piihlic way aiil for an iiitui IcrcMici' witli or 'ItMual of
this rii:li( lit' «'an maiiifaiii a privni." a<-lioi. iMnvidfil he
ha>< siiU'cnMl any adiial damauc
A imlilir way may bo created. 1. liy <lcf<l. 2. liy
(U'dicalioti. ."J. I)y user or proscription. \. Hy the oxer-
ciso of thi» ritrht ofoiniiioiil domain.
The owner may hy (h'c(l to the proper jtnhlic cor[>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 <dass of cases. /
Gowan v. Philadelphia Ex. Co., o W. & S., 141./
At common law, land could not be dedicated to the
I)iil)li<- iisi' lor any otluT |)iir|)()s«' than a piiMic way.
riiltlic parks, coiiimons, and suoli anala;r<)Ms ri;;lits wiTc
licld t(» rest in liranl. I!ul it i^ now \\r\\ settled in lliis
fOMiitry, that lan<l can Itr dcdicalcd to tlif public for uses
and purposes oilier than hiirhways.
Hiikcr V. Joliii>,(>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 inainlainin<i and keeping such a way in
suitable repair at the piil)lic expense, it may easily happen
that some particular way is of little or no biMielit to tlu^
public at large, and that it has been laid out for the pur-
pose of enhanciiiLj the value of private property. In such
a case it would be iinjiisf to compel the public to open
and maintain such a way at the public; expense. P'or
that reason the statutes in most, if not all the states, pro-
vide specifically what -leps the proprietor shall lake who
desires to deilicate lan<l for a jiublic way and in what
manner such dedication on his part shall be accepted by
the public. These statutes usually have particular refer-
ence to village plats, and additions to villages and cities.
In this state they re(piire that the proprietor of the land
plated shall make a plat drawn upon a certain scale which
shall -liow the Incalion and widlli ol all -^l r«'i'ls. and the
location and area of all public grounds, and it provides
also, that such plat >liall 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
<ells such lands with reference to such dedication, he can-
not afterwards withdraw his offer.
Ahbott V. Mills, 3 Vt., 521.
Abbott V, Mills, 23 Am. Dec, 222.
There must in every case be an acceptam-e on the
part of the public.
White V. Smith, ;{7 Mich., 2'Jl.
Niagara Fulls Bridge Co. v. Bachmau, 6(i N. V., 2(J1.>'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., <i32.
But the ;;eneral rule is, liiat when the dedication is of
evident a(lvantai:;e to the public, tnere user on the part of
the i)ublic, is sullicient evidence (»f an acceptance.
Guthrie v. New liuveii, :'A Conn., 3(t8.
4
—54—
And it, may he staled as a j:;eiieral rule, except in
those states where a formal act of acceptance is requisite,
that any act on the part of the public treating the way as
a pui)lic way, as by improving; or repairinj;, will be re-
iianled as sullicient evidence of an acceptance,
Ross V. Thorn psou, TS I ml., 90.
LECTURE VI.
1!V rSKK OK PRESCUII'TIOX.
Strictly sj)oakiiij; lIuM'o could he no cslahlisliinciit of
a highway at coimnon law by i)re.scriptioii, since the term
implies that the hij^iiway was orij:;inally established by
grant, and as we have seen there could be no i^rant. The
proper term is user. When there has been an open, ad-
verse and continuous user by the public for the statutory
perio<l, the court will presume that there was originally
not a grant of the public way, but a dedication. As the
result is precisely the same, courts have sometimes u-^ed
the term prescription, and not user.
Odiorne v. Wade, 5 Pick., 4'JI. ^
Reed v. Northfleld, l;} Pick., U\. ^
Miirtiii V. People, U.5 III., .S42.
Hurt V. Trustees, 15 Ind., ilid.*^
Jirownell v. Palmer, liii Conn., 107. ^
And in such casi' the user must havi' been conlimMl
during the entire period to i)ractically the same road bed.
And this rule is based upon the theory that if there was a
dedication, it was a dedication of a particular way which
was made certain by the act of the parties making the
dedication, and that to establish such a way by user, the
user must indicate clearlv the wav originallv deilicated :
nc)—
liril il cannot bo prosiiined tli il Iti'caiiso a person is vvill-
ini: to (IcMliciito a i)arli(;iilar way lie is willinj; that snch
way should he a(laii(h)ne(l and tliat the jiuhlic he permitted
to (dioosc any way th'sircd. IJiil when there has been
only a sliirht deviation, I he ri^ht of the pul)li«- will not be
cUccted thereby.
liuinpus V. Miller, 4 Mich., \-V.K
riiltlic ways created by user, or prescrij)tion, or by
dedication, rest upon precisely the same foundation, l^ut
the nature and kind of proof required to establish the one
dill'ers entirely from that which is necessary to establish
the other. The tirst is established b}-^ proof of adverse
user by the public for the statutory period, from which
the fact is found inferentially, that there was a prior
dedication by the owner of the soil, the evidence of which
is now lost, or that it was laid out by the proper authori-
ties and such records are now lost. The second is estab-
lished by proof showing actual dedication made by the
owner and acceptance thereof by the public.
Commonwealth v. Coupe, 12.S Mass., G:',, G5. ^
Jeniiinj^s v. Tisbury, 5 Gray., 73.*^
Zigefoose v. Zigefoose, G9 Iowa, 3!il.
ESTABLISHMENT OF PUBLIC WAYS BY THE EXERCISE OF THE
KIGHT OF EMINENT DOMAIN.
The legislatures of all the states jiave enacted laws
specifying the manner in which private land may be taken
for the public use for highways an<l streets. These
statutes are based ui)on the jjower of the government to
take private property for public use when such taking is
necessary for the public welfare, called tiie right of em-
—57—
iiuMit tloMKiiii. riic citi/cMi is fi;iiarik"tl and pndccictl
ajjjainsl a uaiilon cxcrcisi' of this power hy the r(iii»tilii
tioii, wliicli provides that no one ''shall Itc deprived of
property without due process of law; nor shall private
property I )e takfMi lor public use without just coinpensa-
tion."
5 Amdt., ir. S. Const.
Sec. :i-2, An. <i, Mic'h. (.'inist.
Due process of law means, the law ol" the land, the
common law, which so Car as judicial process and deter-
mination is concernet], re(|uires that Iho person -"hall he
duly summoned and have a day in court, and that he shall
not be deprived of his pi-op(Mly unlil after such hearini::
and judicial determination.
Sears v. Cotrell, 5 Midi., i50.
Mutter of JoJin Cherry Streets, lit Wfiid , 6">!).
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'a<l in
one tlirci'tion nowhere, was a private way, and coiiM not
be regarded as a i>iiblic 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 <loes not
exist, for the reason that he lias merely obtained under
the grant creating the way, a right to use the way granted,
and it follows, that if lie has been deprived for any rea-
son of th(> 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 ;ni<l positive necessity,
wliitli aiiioiiMts, mu^cr (Ih- circmnslunces, to an absolute
necessity. Mere inconvenience is not siillicient. There
must be no other way practicable:
Carey v. Rae, 5S Ciil., l">i).*^ y
McDonald v. Lindall,.'{ Uawie., 492. ^
Turiibull V. Rivers, 3McCor<l, 131.
Cooper V. Man pin, 6 Mo., 6LM.
Anderson v. Budianan, S Ind., 1.32.
Ogdeu V. Grove, .'{8 Pa. St., 487.
Gayetty v. Bethune, 14 Mass., 49.
Trask v. Paterson, 29 Me., 499,
Nichols V. Luce, 24 Pick., 102.
Burns v. Gallagher, (32 Md., 462.
P>ancies'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<l and al)snrdly contused statement ot"
fact.
There are several kinds of jjrivate ways, l)nt Hie rii^lit
to use and enjoy either one of them is jioverned by th(>
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<je yiMst opiviy^and (dose when u-inu the way.
FcndHT, 47 N. H., :{()1, :wi.
Al(l«/rs<)n, '2-2 Iowa, 1»!0, Dili,
V. Jarret, (i'.t Wis., Ol.;.
0-.
Rut when a way has been hiid out and constructed
and its character fixed and determined, at the time the
grant is made, and the terms of the grant clearly indicate
that the particuhir way, as then established and main-
tained, has been conveyed, the grantor will not be per-
mitted to derogate from his grant l)y making any change
in the way to the deti'iment of the grantee.
Welcli V. Wilcox, 101 Mass., 102, 163. "^
Dickersoii v. Wliituey, 141 Mass., 414.
Nasii V. New Knj;. Ins. Co., 127 Mass., 91.
The use of the wa^' is restricted to the purpose for
which it was granted.* If tlie way granted is one to go to
a particular jdace for a particle purpose, the grantee can-
not use the way to go to any other place than the one
designated, nor to that particular place except for the
purpose specilied. And the reason for this stringent rule
is, that the grantee niav not increase the burden of the
—71 —
oasomoiit upon fhc servient c^l.ilc Iu'VoikI tli.ii iiii|».)s,..|
Ity the i^iaiii .
Diivciijiort V. L:uiis(ui, lil I'ick., 7:^
Frciii'li V. Marstiii, I Fustfr. Uo, \\:>.
^
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 win<lows.
U. S. V. Appleton, 1 Sum., 4!t2.
James v. Jenkins, 34 Md., 1.
Robeson v. Pittinjjer, 2 N. .!., Kt|., .57.
Such is the English rule.
—80—
ruliuer V. Flulcher, 1 Lev., IJ'J.
Allen V. Taylor, L. R., 16 Ch. D., Hoo.
In Burke v. Smit/i, cited above, the (juestion pre-
sented to tlie court was the riji^Iit of an adjoinin<i owner to
niulicionsly and wantonly obstruct the air and li^ht from
passing into liis neifjhbor's windows, with the sole purpose
and intent of iujurinii: and annoyinf;; his neij^hljor. Upon
that question the court were e(|ually divided. Vcju will
liiid the discussion, however, a valuable one upon the
(piestion under consideration.
It is not necessary to add that easements in both air
and light may be created by express grant, and when so
created, that they are subject to the general rules govern-
ing the use and enjo^'ment of similar easements,
RIGHT TO LATERAL SUPPORT.
The soil of each parcel of land in its natural con-
dition, is held in place by the natural pressure or resist-
ance of the adjoining soil. This pressure or resistance is
called lateral support. The rii;ht to this lateral support is
incident to the ownershii) of every parcel of land, however
small, since tlu^ owiu'r is entitled to its use and enjoyment
in its natural condition. The right to lateral support is
usually denominated an easement, each parcel of land
being regarded as the dominant estate as to each of the
surrounding parcels and also a servient estate as to each
of those parcels, the right being a cross easement, or a cross
servitude. It does not. however, owe its existence to cus-
tom, usage or grant. It is not a true easement, but a
right incidiMit to theownershii) of tlie land. The distinction
is important, not simi)ly l)ecause definitions should always
be correct and free from all ambiguity', but lor the reason
that the rides .md principles governing the rights of
—81—
parties to ;iii ciisniiiuit are iiioililictl, wlit-n applied to Ji
right ill tlie property itself.
Wo have alrea<ly called yctiir altcntiou to the general
rules ^overiiiiiir Ihe use and enjoy uient of an easement,
applical)le to the owners of tlu' dominant and servient
estates. Tlie itiiiuiples api)lieal»I<' to the enjoyment of the
right to lateral supj)ort are drawn from the maxim, "That
a person must so use and enjoy his own as not to injure
the properly of his neighbor." And it will be necessary
to examine somewhat the application of this maxim to
the use of real estate generally, before considering its
application to the right of lateral support.
The various uses to which land may be put may be
classified under one of these heads:
1. Natural use.
2. Artificial use.
3. Use authorized by the statute.
I. 2. NATURAL AND ARTIFICIAL USE.
It would l)e very dillicult, if not impossible, to frame
definitions that would furnish any aid in enabling one to
classify any particular use of land as belonging to the
first or second division not allbrded by the terms natural
and artificial. As a practical illustration of the distinc-
tion, suppose A and B are owners of separate estates and
that each erects a water-power mill upon his own estate,
A's mill is supplied with i)ower from a mill pond fed by a
stream crossing his estate, while the power for H's mill
comes from a mill pond on his estate, fed with water
brought artificially to it. In such a case A has made a
natural use of his land, while B has made an artificial use
of his. The one estate had a natural mill site, upon the
other an artificial mill site has been created.
When a person in the natural use of his land takes
—82—
roasoiial)lo oaro iu)t to iiijiirt' others, he is not responsible
for any (lainajj;e rosulfini: iVotn such use not duo to liis
fanlt or noj^Iij^onci*.
Smitli V. K.-n.lri.-k, i\'2 K. C. L., 51.5.^"
Rockwoo.l V. Wilson. U Cusli., 221.
Btirry v. Peterson, 48 Midi., 2<;.S.
Wlu'ii a jtcrson makes an arlilicial use of lanti, he is
liable lor all daniai^es resulting from such use, without
reference to the dej^ree of care and precaution which he
may have exercised to prevent injury. Under such cir-
cumstances he is an insurer against loss or damage to
others.
Rylands v. Fletc-lier, L. R., .3 Exch., 352.^
Ry lands v. Fletcher, L. R., 1 Exch., 265.
Tenant v. GoMwin, 2 Ld. Raym., 10S9.
Smith V. Fletcher, L. R., 7 Exch., 305.
Bouomi V. Backhouse, 96 E. C. L., 622.
Stroyan v. Knowles, 6 H. & N., 454..
Lossee v. Buchanan, ."j1 N. Y., 476.
Brown v. Robbins, 4 H. & N., 185.
Pixley V. Clark, 35 N. Y., 520.
Tremain v, Cohoes Co., 2 N. Y., 163.
Uutlerwood v. WaMron, 33 Mich., 2.32.
Mears v. Dole, 135 Ma.s3., 508.
Ball V. Nye, 99 Mass., 582.
Baird v. Williamson, IdO E. C. L. R., 376.
Buckingham v. Elliott, 62 Miss., 296.
When a person, however, makes an artificial use of
hind, for instance, by storing water on his premises, using
reasonable precautions to prevent its escape, and by an
act of God it escapes, he is not liai)le for damages caused
thereby. Wiien the law imposes a duty upon a person
—83—
tlu' law excuses liiiii from tlie [jeilormanct? of siirh duly il"
he is pn'venteil hy the |)iil)lic enemy or the act of (Jod.
NicliolH V. .MhihIuii.I, I.. K., J lv\. I)., 1.
3, I'SK Al'TII()IU/.i;i) HY STATUTE.
W'lifii the use is aiitliorizi'd by an ad of tlie legisla-
ture, onlinaiy eaie and prudence on the part of the person
authorized to do the work will relieve him from all re-
>ponsil»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 <loes interfere willi I he
natural (low (if the water, he is responsihle.
Smitli V. Ivfii(lrii-k, <i2 K. (\ L., 515.
Il:iirii V. Williniusoii, Ki'.t h). C. L., aTG.
—84—
It would scoin llial while llic removal of iniiierals is
tlie nuliiral use of (he uiiiie, it is not the natural use of
the land rdidaiiiin;: the nnne. That while an adjoiniuf;
mine owner cannot complain of any dama;:;e which he
may sustain from the working; of the mine in the usual
mannei-, the owneidfihe surface adjoining the mine may,
and that in the latter case tlu^ mine owner is an insurer of
the safety of the surface in its natural condition, and also
of improvements thereon which do not contribute to the
injury.
Stroyan v. Knowles, H. & N., 4.54.
Brown v. Bobbins, 4 H. & N., 187.
It would seem also that any use which necessitates a
material change in the surface of the soil, or the raising
of water above its natural level, subjects the person mak-
ing such use to liability for all damages caused thereby
naturally resulting therefrom.
Smith V. P'letcher, L. R., 7 Excb., 305.
Mears v. Dole, 135 Mass., 508.
Pixley V. Clark, ^5 N, Y., 520.
LECTURE IX.
i-\ii:kal sriM'oin- coxi intki).
Since l.nitl I'xU'MiK IVoiii tlif ct'iilcr ol' the fiirlli up
wards to the /cnilli, mikI iIh' owner lias a right to make
any nse of it he may desire, consislent with the maxim
I hat he sliall <(» n^f his own as not t(» injure the property
III" annlhei', it lullow-^ th;it he may make an excavation in
hi-- own lan'l ii|i to the very l)onn<hiry line and to any
deplh, pi()\ idiuL: -iicii e\ca\ ;il ion (h»es not injure his
neiiihhor.
Makinii an excavation, however, is not the natural
use of the land, although it may he a usual ami necessary
use. it necessarily causes a change to he made in the
naluial londition ol' the --oil, and since the adjoininic
owner has a right to the lateral support ol' the soil in its
natural ccuidition. the |)eison makinii the excavation is
lialtie if damage re--ulis from ihe e\ca\ation. The extent
of his liahility is often a perplexing (juestion.
It i> 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 uii<l(>iil>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 situate<l
thereon, which arc due to negligiMu-e and want of skill on
his part.it becomes important to consider what is regarded
as reasonable care and skill in this class of cases.
1. The i)erson making the excavation must, if neces-
sary to tiie safely of the adjoining soil, make use ol some
support that shall br sullicient to maintain it in its natural
condition. If one should dig down below the foundation
of an adjoining building, without shoring it up to the ex-
tent at least of the lateral support re(piir('(l by the land in
its natural condil inn, such comluct on his part wnuld be
li(>ld lo be gross negligence.
Aston V. Nolen, <i3 Cal., litiH.
Hrowii V. Werner, 40 M(i., lo.
—88 —
2. Ilf iiiiisl 'Xw(' rcasonahlc notice tn t lie adjoiniiiL;
owner of llu* oxicnl and cliaraclcr oC the excavation he is
about to make, and he nuisl permit such owner to iro
n]>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<lJoining
building. For instance, he should excavate at the adjoin-
ing wall in sections and replace the dirt tlius removed
with sections of the new wall to be erected by him, or
adopt some other equally effective measures against acci-
dent and damage.
LiiSala V. Holbrook, 4 Paige. Ch., 109.
At one time the opinion prevailed that a right to
lateral support for a building could be acquired by pre-
scription. Lord EUenborough made certain obiter dicta
to that effect.
Stansell v. Jollard, Selw., X. P., 444.
But it is now well settled in England that this right
cannot be acquired by prescription. The right by pre-
scription is based upon the supposition that there was a
grant at some remote period, all evidence of which is now
lost, and the court infers such grant from proof that the
assumed grantee has used and asserted the right adverselv
-89—
I'or lilt" re<|iiiNii»' |tt'iioi|. lint in the case of a building
erected upon a man's own premises, the owner exercises
no riijlits adverse to tiiose of any other owner, and conse-
quently there is no adverse possession, or user, on his
pari.
AuKiis V. Ihilton, L. II., .{ (^ B. IJiv., Ho.
Such is the rule also in this count i\v, supported l»y the
weii;ht of authority.
Gilmore v. Driscoll, 122 Muss., 1U!>. 2<t7.
Mitchell V. Rome, 49 Ga., Ht.
Wliiii V. Abeles, .'5") Kan., S.l.
Taiistall V. (!Urislian, SO Va., 1.
There is an intimation, in many of the cases, that
when the owner of two parcels of land sells one with a
buildiny; thereon, situated so near the boundary line that
the lateral support of the soil in its natural condition is
not sulTicient to sustain it. thai the vendor has burdened
the land not sold, with the support of the additional
burden caused by the building, for the reason that when
he i)arled with the land there went with the ;zrant as
incident thereto, a rii^ht to have the surface of the soil
supported in its then condition.
Humphries v. Broaden, 04 E. C. L., 7;>9.
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<is are erected by tlie same owniT in
such a manner that each is supported and kept in position
by the other, and such owner al'terwai'ds sells one of the
l)uildin^s, the ^raut conveys, as ap|)urtenant to tlie estate,
an easement of support for the buildin*; conveyed in the
building retained.
Richards v. Rose, i> 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)ouii<larv line or even a con-
siderable distance therefrom.
Field V. Leiter, lis 111., 17.
Such wall may; 1. lielong to the adjoining pro-
prietors as tenants in common. '_*. It may be ilivided
—92—
l()ii<rihi(liM;illy into two strips, eudi slrij) l)('l()ii<;iii«j; to the
adjoiiiini:; owner in severalty. •".. It may Ix'loiii: wholly to
one proprietor, siihjec't to a ri^lit held l»y tlic otiicr to have
it maintained as a i)ai'ty wall. I. It may l)e divided
lon;;itudinally into two moities, each moiety subject to a
cross easement, a riijht of support in favor of the otlier.
Eitlier of tlicsr conditions of ownership may i-csult from
express contract.
When a wall has been used as a pirlv' wall for more
than twenty years, such user raisins the presumption, in
the absence of rebuttin^j; evidence, that it is a party wall,
made so by an agreement l)etween the parties, or was
l)uilt by the parties for thai purj)ose. even if such wall is
wholly upon the land of one of the parties.
Scliile V. Urokaiuis, 80 N. Y., 'il4.
Brown v. Werner, 40 Md., lo.
Dowling V. Hennings, 20 Md., 179. 184.
Montgomery v. Masonic Hall, 70 Ga., .'iS.
Koenig v. Haddix, 21 111., App., o.S.
When the fact is established by u>er. 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<lini2;s may be siudi that one of the
parties may desire to erect a building <>!' 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. <k W. India, <Jtc., 1:.' K. L. & E., 520.
Tlllett V. Ward, L. R., 10 Q. IJ. J)iv., 17.
Detroit v. Beeclier, 75 Mich., 454.
As was said in Star v. Rookeshy^ " the law bounds
every man's property and is liis fence " when a trespass is
committed it is not necessary to show that the owner of
the animals had notice of their propensity to roam and do
mischief. Tliis disposition is so natural and so notorious
tiiat the owner is conclusively presumed to have knowl-
edge of it. And the fact that they escaped against the
owners will does not relieve him from responsibility.
Page V. Hollingsworth, 7 Ind., 317.
Gresham v. Taylor, 51 Ala., 505.
Forsythe v. Price, 8 Watts, 282.
The common law rule that the owner of domestic ani-
mals must keep them on his own premises or be responsi-
ble for their trespass, is recognized as in force in many of
the states, except in so far as it has been modified by
statute.
Pittsburg R. R. v. Stuart, 71 Ind., 500.
Baker v. Robbins, 9 Kan., 303.
Louisville R. R. v. Ballard, 2 Mete. Ky., 177.
Williams v. M. C. R. R, 2 Mich., 259.
Maynard v. Boston, &c., 115 Mass., 458.
Lock v. First Div., &c., 15 Minn,, 350.
Van Degrift v. Rediker, 22 N. J. L., 185.
Giles v. Boston, «&c., 55 N. H., 552.
Keenan v. Cavanaugh, 44 Vt., 268.
Harrison v. Brown, 5 Wis., 27.
Spinner v. N. Y. C. R. R., 67 N. Y., 153.
Sturtevant v. Merrill, 33 Me., 62.
Milligen v. Wehinger, 68 Pa. St., 235.
—105—
Tlio origin of tliis common law rule is found in the
early En;:;lisli custom ol" coninninity farming. The fields
were divided into acre strips and at first no one person
owned two adjoining strips. The fields thus divided up
into acre parcels were not separated from each other by
fences or hedges. As a result of this system the sheep,
cattle or swine, while grazing, had to be under the charge
of a shepherd, herdsman or swineherder, and at night
each owner secured his own animals upon his own prem-
ises. Had the courts of this country always enforced the
rule that when the reason fails the rule ceases, ttie com-
mon law rule in regard to fences would no! have been rec-
ognized as in force in an}" part (jf this country, because
the condition of agriculture here has always been entirely
different. It has been the custom in this country from the
earliest settlements, to inclose lands as soon as they were
reclaimed from the wilderness and to use the wild and un-
cultivated lands as comraons. And for this reason the
courts of many of the states have held that this common
law rule was not in force in this country.
Little Rock, &c., v. Finley, 37 Ark., 5G2.
Logan V. Giduey, 38 Cai,, 579.
Morris v. Fraker, 5 Colo., 425.
Studwell V. Ritcli, 14 Conn., 291.
Macon, &c., v. Lester, 30 Ga., 911.
Headen v. Rust, 38 111., 186.
New Orleans, v. Field, 4G Miss., 573.
Gorman v. P. R. R., 2(j Mo., 441.
Marietta, &c., v. Stephenson, 24 Ohio St., 48.
Caniphell v. Bridwell, 5 Or., 311.
Blaine v. Railroad, 9 W. Va., 252.
In those states where the common law rule is not in
force, uninclosed lands are held to be «/'/'/.?/ commons, and
not fencing is regarded as a license on the part of the
—106—
owner to permit cattle at their own will to pasture there-
on, but not as giving the owner of such cattle the right to
drive his animals upon such lands for the purpose of pas-
turing them there. The owner of the land is still regarded
as having a right to the exclusive use of his lands, pro-
vided he can keep his neighbors cattle that run at large
from trespassing thereon.
Bedden v. Clark, 7G III., 338.
Delany v. Erickson, 11 Neb. 5.33.
Hallock V. Hughes, 42 la , 516.
Little V, McGuire, 38 la., 560.
Little V. McGuire, 43 la., 447.
As an illustration of the maxim "that when the rea-
son for a rule fails the rule fails," the courts of Colorado
hold that the owner of lands must fence against cattle,
but need not fence against sheep, because cattle are per-
mitted to run at large unattended, while sheep, although
they run at large, are under the charge of a shepherd.
Morris v. Fraker, 5 Colo., 425.
Willard v. Mathesus, 7 Colo., 76.
There are two ways in which the rule of the common
law in regard to partition fences may be changed. The
parties may themselves, by agreement, or prescription
obligate themselves to maintain partition fences, or the
statute may provide for such fences.'
Star v. Rookesby, 1 Salk., 335.
Binney v. Proprietors, 5 Pick., 305.
Adams v. Van Alstyne, 25 N. Y., 232.
And where an obligation exists to maintain a partition
fence of a particular description, it is a general rule that
—107—
when a proprietor whose duty il is to niaiiitiiiii siicii fence,
neglects to perform that duty, and cattle trespass upon
his lands without any fault on the part of tlie owner of
such cattle, the owner is not lialde.
Moouey v. Maynurd, 1 Vt., 470.
Hiue V. Muuson, 32 Conu., 210.
Westgate v, Carr, 4.'5 Fll., 450.
Mann v. Williamson, 70 i\Io., 661.
Cowles V, Balzar, 47 Barb., 5G2.
Gregg V. Gregg, 55 Pa. St., 227.
Hurd V. R. & B. R. R., 25 Vt., 116.
It seldom happens that in tiiis country a partition
fence owes its origin to either covenant or prescription
In nearly every state tiie subject is regulated by statute.
As early as 1785 the commonwealth of Massachusetts
passed a general statute upon the subject of building and
maintaining division fences, the provisions of wiiich have
been closely followed in other states and have become the
basis of the statute law in this country upon that subject.
The statute of tiiis state— Howell, Chap. 21 — defines what
shall be a legal and sufficient division fence, and how the
proportion, or part, that each adjoining proprietor shall
Iniild and maintain shall be ascertained and determ-
ined. This is to be done by the parties themselves, or,
by fence viewers. Under similar statutes it has been held
that a verbal agreement between the parties is binding
upon themselves, but does not run witli tiie land and is
not, therefore, binding upon their grantees.
Tupper V. Clark 43 Vt., 200.
Guyer v. Stratton, 2!) Conn., 421.
Pitzner v. Sliitiiiiclv, 41 Wis., 67G.
Glidden v. Towle, 31 N. H., 147.
—108—
WluMi the lands uro unimproved the staliile does not
apply, and in case one of the projuietors desires to improve
his lands, he must inclose them at liis own expense.
Stafford v. lnj?erHoll, .{ Hill, 38.
Aylesworth v. Herriugton, 17 Mich., 427.
Bechtel v. Neilson, 19 Wis., r^d.
Hazard v. Wolfniiu, 31 Wis., 104.
The statute is merely directory, points out simply a
method by which division fences may be established and
maintained, and is not mandatory. Adjoining proprietors
may, if they choose, agree not to maintain division fences,
and in such a case they relieve themselves from the pro-
visions of the statutes and subject themselves to the rule
of the common law.
Johnson v. Wing, 3 Mich., 103.
Aylesworth v. I^errington, 17 Mich., 417.
Milligan v. Wehinger, 68 Pa. St., 235.
Baker v. Robbiiis, 9 Kan., 303.
Moore, v. Levert, 24 Ala. 130.
Tumlin v. Parrott, Ga., 1889.
One, ordinarilj', is not bound to fence against cattle
not ri-ihtfully on adjoining premises, and therefore if cat-
tle which are trespassing break into an inclosure the
owner is liable, although the division fences of such in-
closure are insulFicient.
Wilder v. Wilder. 38 Vt. 678.
Rust V. Low, t! Mass., 90.
Lyon v. Merrick, lOo Mass. 71.
If, however, cattle are by statute permitted to run at
—109—
larj^o, llu' above ■rule docs not apply, and in that, caso, in
order to enable a land owner to rcfdver, he must maintain
a lawful fence.
Westgate v. Carr, 43 111., 450.
Frazior v. Nortinu.s, 34 la., S2.
When tliere is a division fence which both i)arties are
bound to maintain, and neither party is bound to main-
tain any specilied part, the common law rule prevails, and
each is liable for the trespass of his cattle due to the de-
fects in such fence, for the reason tliat it was his duty to
keep the whole fence in rei>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<l, ■')') Iiul.. 411.
When, however, thi' duty of maintaining a division
fence has been divided and a trespass occurs through a
defect in a part of the fence which the plaintilfis recpiired
to maintain, he cannot recover damages for the trespass.
East v. Cain, l!» Midi. 173.
—110—
WHAT CONSTrn'TKS A THKSI'ASS,
Kvcrv wn)ii;xl'iil (Mihy of oiu^'s caftlo upon llu' lands
of aiiollior ('((Mslitiik's a trespass, and imports daiiia;;es,
and il' no acltial damaj^es are shown, nominal damages
may be recovered.
Pierce v. Hosuilt, (iU limb., 34o.
McMannus v. Fiimn, 4 la.. 283.
To constitute a trespass it is not necessary that tlie
animal should step across the boundary and tread upon
another's land. lie may stand upon his owner's land and
commit a trespass l)y kicking or biting through or over the
division fence.
p:ilis V. Loftus Iron Co., L. R., 10 C. P., 1<».
Petti t V. May, 34 Wis., 66(j.
Not every entry, however, by an animal upon the
lands of another will constitute a trespass. Tne owner of
lands adjoining a highway is not obliged to fence against
animals wrongfully in the highway.
Cliambers v. Mathew.s, 18 N. J. L., 368.
Dovastou V. Payne, 2 H. Blk., 528.
But since the public have the right to use the high-
way to drive animals from one place to another, the owner
of animals so driven is only reijuired to use reasonable care
to prevent thom from trespassing upon adjoining lands,
and he is not liable if they casually stray from the road as
they are driven along, if he makes reasonable efforts to
capture them and prevent their doing damage. It is held
— Ill—
tliiit such «lam:ii;i' is an iin-iilciit iliir to tlu' -iiualioii of
the laiul, for wliiili the owner has no rciiUMly.
HurtfnnI v. UriKly. Ill Mass., 400.
McDoiiuM V. PittsM.I.l, .tc. ITj Mhhh.. Wi.
Tillftt V. Wani. L. U. lo Q. B. Dv., 17.
Cool V. Cromniet, 1.*} Me., 2Ji().
Ooddwyn v. Cheveley, I H. & N,, 031.
LECTURE XII.
WATERS.
Tlie law does not, with certain exceptions, recognize
a right of private ownershij) in water itself. One has no
title to the water of a stream flowing across his land; he
possesses merely a right to use the water in a manner that
shall not interfere with the right of user possessed by other
persons having similar interests in such water course.
In considering the legal rules governing the right to
use water, it is desirable to classify waters and to consider
separately the rules applicable to each class.
Water mingled with the soil, or percolating through
it in no well-defined channel, is called surface water.
AVhen water, by percolating through the soil or other-
wise, has collected into and formed a considerable body of
water, it is called a pond or lake.
When water flows in a particular channel between
well-defined banks, it is called a water course or river.
AVhen such stream is beneath the surface of the soil,
it is called a subterranean water course, and the point
where it comes to the surface of the ground, a spring.
When a pond, lake or spring is situated wholly upon
a persons own land, and such pond or spring has no outlet,
or one that is wholly upon such person's land, the water
of such pond or spring is practically the property of such
land owner, for the reason that no other person possesses
— lln—
the riji;ht to uso such walcr, or iiiiy port ion of it. The
ownor may, tlieivrorc. use I he whoh' ol" the wafer in such
pond or sprinj;, or he may convert the pond oi- sprinir in-
to dry land.
If sueh pond or sprinir lias a natural outlet which
crosses the lands of an adjoining; proprietor, such proprie-
tor has the rifiht to have such outlet maintained in its nat-
ural condition, and the use of the water in such sprinir and
pond, by the owner of the land upon which they are
located, is "governed hy the same rules which govern the
use of water in streams and rivers by adjoininjj; ])roprie-
tors. These pr()[)ositions, and the authorities supporting
them, will l)e commented on hereafter.
RIGHTS IN SURFACE WATER.
So long as the surface ol' fhc land is left in its natural
condition, water from rain-fall an<i the melting of snow
and ice Hows over the surface or percolates through the
soil until it reaches a natural water course. We will first
consider the rights of adjacent land owners to use and dis-
pose of this water before it reaches a natural water course,
during the time it is known as surface water.
It is a general rule that the owner of land has a right
to get rid of surface water in order that he may use and
enjoy such land. It frcMpiently happens that the land is
absolutely worthless until it is imi)roved by drainage, but
how the owner may riil himself of this "common enemy "
is a question answered in one way by one court, an<l in
quite another way by another court.
The better rule seems to be that adjoining owners of
land must iniprove their lands with reference to their nat-
ural situation and the probable elfecl upon lands l)elong-
ing to their neighbors; and that the owner of lower land
may not prevent water from higher land flowing ui)on, or
—114—
percolating through the soil of his land, and that if he
desires to improve such lower land, he must not damn up
the water ilowing from a higher level. On the other
hand, the owner of the higher land must not by artificial
means increase the How of water upon the lower land to
the damage of the other proprietor.
Martin v. Riddle, 2fi Pa. St., 41').''
KuufFman v. Griesemer, 26 Pa. St., AOlf
Gillham v. Madison, etc., 4(» 111., 484,
Gormley v. Sanford, 52 111., 158.
Oj?burn v. Connor, 46 Cal., .S46.
Hays V. Hays, in La., 351.
Butler V. Peck, 16 Ohio St., 334. ^
Launiier v. Francis, 26 Mo., 181.
Conklin v. Boyd, 46 Mich., 56.^
Earl V. DeHart, 12 N. J. Eq., 280.
Cagle V. Parker, 97 N. C, 271.
Railroad v. Marley, 25 Neb., 138.
Olsen V. Railroad, 38 Minn., 419.
It has been held, however, and there is a goodly
array of authorities sustaining that view, that there is no
legal right appertaining to land to have surface water
discharged over contiguous land, no matter what the con-
formation of the surface may be, and that the right to
receive and discharge surface water has no legal existence,
except from a grant, express or implied.
Bowleby v. Speer, 31 N. J. L., 351.
Parks V. Newburyport, 10 Gray., 28.
Dickenson v. Worcester, 7 Allen, 19.
Gaiinow v. Harj^'adon, 10 Allen, 106.
Morrison v. Biicksport, 67 Me., 353.
Wheatley v. Baugh, 2-1 Pa. St., 528.
Bark ley v. Wilcox, 86 N. Y., 140.^
Pettigrew v. Evansville, 25 Wis., 223.
—115—
Thr rule adopted in New Hampshire gives the owner
of land tiic rijiht, in the use and improvciiieni of his land,
to make roa^oiiahle niodilicalions in the Ihnv of surface
and iicrcolat iwj; waters.
.Swft V. Cutis, oO N. H., 4:51».
Biissett V. SaliHbury, etc., 4;{ X. H., -'iiiU.
It is a ixenoral rule, thai in m'tlinj:; rid of surface
watci, lonncd on tlic land drained, the owner must con-
struct liis drains wifii reference to the initural How of the
water, and if he increases the natural How of the water,
he is liable for the damage caused thereby.
Pettigrew v. Evansville, 2o Wis., 223.
Noonaii v. City of Albany, 79 X. Y., 470.
Miller v. Laubacii, 47 Pa. St., I'A.
Cubit V. O'Dett, 51 Mich., 347.
WatHe V. X. Y. C R. K., 53 N. Y., 11.
These questions sometimes arise when the public
authorities construct drains for tiie benefit of iii<:;hways or
streets. It is well setthMl that i)idjlic auliiorities have no
rigid to cid drains that will injure private persons.
Cubit V. O'Dett, 51 :\rich., 347.
VanPelt v. City of Davenport, 42 la., 30S.
Ashley v. Port Huron, 35 Mieli^ 29(5./'
S. C. :!(), Am. Rep., 629, note. ^
Ryehlicke v. .St. Ijouis, (Mo.), 4 I.. R. A., 5!»4.
A land owner, however, in draining his land has a
right to construct whatever drains are necessary, open or
covered, which discharge into natural channels, although
he thereby increases the natural tlow of tjie water at cer-
tain times and seasons.
— IIG—
/
Martin V. Kid.lU', 20 Pu. St., 410. '
Wood V. Waiid, ;; Kxch., 748.
Williiiius V. (}ale, ,'{ JI. & J., 2.'?!.
IJellowH V. Sackett, 15 IJarb., 90, lOU.
And it is also llie }j;eneral rule, that the url)an owiut
may impfDVi' his land l)y liliiii.ii in the same, even if
thereby lie (lanses water lo How and remain npon otlier
lands to their dama<;e.
Flog}? V. Worcester, 13 Gray, 001.
Ut-ntz V. Armstrong, 8 W. & S. (Pa.), 40.
Bowlesby v. Speer, 31 N. J. L., 351.
A contrary rnle, however, prevails in Illinois. The
nrban owner is not permitted to till in low land and tinis
throw surface water upon the lands of an ailjoinin^ pro-
prietor.
Gorinley v. Saiifonl, Wl 111 , I'jS.
Gillham v. Madison, etc., 49 111., 484.
While there is considerable contlict of authority upon
this subject, nearly all the courts are agreed, that if the
acts complained of and which have caused the damage
were not done in good faith by the defendant, and for the
purpose of improving his property, he will be held liable.
He is not permitted wantonly and miscluevonsly to tlood
his neighl)or\s land.
This contlict in the decisiojis of this country upon
his suljject, is due in part to the fact that some of tlie
states have adoi)ted the rule of the civil law, that the
upper tenement has an ea<ennMit of drainage in the lower
tenement, while others follow the common law rule that
—117—
surface water ininjj;kMl with the soil and percolating
tlirou;;li it, is in the eye of the law real estate.
In BarHci/ r. HV/m/-, S«; N. Y., 140, these two rules
arc discussed, and t\\v slal('> 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<M).
And tlic rijilit to a natural stream ll()\vin<i; in a natural
channel is not confmod to streams upon the surface of the
land, but extends as well to streams llowin-:; in a known
and definite channel beneath the surface.
Wood V. Waud, 3 Kxch., 748.
Wbeatley v. Baugh, 25 Pa. St., 528.
A watercourse is defined to be "a stream of water
usually fiowing in a definite channel having a bed and
banks, and usually disQJiarging itself into some other
stream or body of water." To constitute a water course
the size of the stream is not important. It may be very
small and the flow of the water need not be constant ; but
whether constant or not, it must be something more than
the mere surface drainage of a tract oi" land occasioned by
freshets or other extraordinary causes. It is often a ques-
tion of fact for the jury to find whether in a given case, a
water course exists or not.
Luther v. Winnisiinmet Co., 9 Cush., 171.
Duddeu v. (tuardians of Poor, etc., 1 Hurist. & N., G27.
While one may not, to the prejudice of the rights of
another, interfere with a water course on the surface, or
one which is known to exist beneath the surface, still,
since the owner of land has the right to the use and en-
joyment of such land below the surface, if in the exercise
of his rights, and for the purpose of enjoying his premises,
he makes excavations and thus cuts olf, diverts or destroys,
the use of an underground spring or unknown channel of
— 119--
water, w InCli lia-- no kiinwii or definite course, hut wliicli,
in fact, lias been accuslouuMl to make tlirouirli the ^^rouiid
and llow into the hind of his n('ij:;hh(jr heh)\v the surface,
he is not liahh; for the stoi)paf:;e or diversion of such
water.
Frnzior v. Hrowii, 12 Ohio St., 2t»4, .304.
Dfilii V. Youinaiis, oO Barb., ."{Ki.
8. C, 4,5 N. Y., m2.
Acton V. Blundell, 12 M. .V W., 324.^
A distinction is made between a water course and a
well or spriiii:; not rising; to the surface and haviii;:; an
overllow. The rule in regard to the latter is as stated
above, that if one in the rifrhtful u.se and enjoyment of
his premises cuts oil" the hidden source of supply he is not
liable. Thus it was licld that when one liad j^ranted to
another the rijiht to box up a sprin>i and lay a pii)e in the
grantor's land for the purpose of conveying water from
the spring to the grantee's premises, the grantor was not
liable lor damages for digging a well twenty seven feet
distant from the spring on higher ground which had the
elfect to lower the water in the spring and destroy its
value to the grantee.
Tiliss V. fJreeley, 45 N. Y., (>7I.
Jloiith V. Driscoll, 20 Conu., 532.
When a spring comes to the surface and forms a rivu-
let or stream which Hows on the surface through the lands
of an adjacent owner, such adjacent owner is entitled to
the usufruct of the water in such stream for all reasonable
purposes, to drink. !(• waier his cattle or drive his ma-
chinery, according to the size and situation of the stream.
The owner of the land ui)on which the spriiiir comes to
—120—
I lie siii-nice first msiy not divert the water from it, although
it is so near the boundary line that tiie water does not
form for itself a defined ciiannel belore reaching such
!ioiilid:irv.
Eunor v. Baucree, 2 GifF. , 410,
Dickinson v. Canal Co., 7 Exch., Zs2, 301.
Hut one may not in digjjcing in his own land divert
the water that loruis part of a surface stream. It i-^ held
that if the owner cannot utilize the underground water
without destroying the water in a surface channel he
must not do so at all.
Delhi V. Youmans, 45 N. Y., 362.'^
Grand Junction Can. Co. v. Sbugar, 6 L. R. Ch., 483.
The above rule has been questioned, and it is some-
what difficult to harmonize it with the following rule, viz.:
One may sink a well upon his own land and collect
water which percolates through the soil and which other-
wise would reach a water course and may thus diminish
the flow of such water course to the detriment of a
riparian owner, and that, while water is mixed with the
soil, is not collected into definite and well-defined chan-
nels and is merely oozing through the soil, the owner of
the land may collect it and prevent its reaching the land
of his neighbor.
Chasemore v. Richards, 7 H. L., Cas., 349,
Action V. Blundel, 12 M. & W., 324,
Questions as to rights in subterranean waters fre-
quently arise between adjacent mine owners, water under
such circumstances having been termed a common enemy.
—121—
The <;eiieral rule is thai a iniiic owner may allow (he
wah'r which collects in his iniiu', from percohitiuij; through
the soil, to llow into an adjoining:; mine if that result is
accomplished fntiii working; the luinc in a proper ami in
(ho usual method, lie must not use any artidcial mcaus,
iiowevcr, to accouiplish that result, lie would not, lor
instance, be permitted to raise the water hy (he use of
machinery to a hi;:;her level in his mine, and from such a
level peruiK it to (low into another's mine
*5mltlj V. Kendiielv, 7 C. B., 51o.
AVe have called your allciitioii to tiie fact that the
puri)()sc and intent with which the act was done had
much to do in determinini; (he liabilKy of one whose acts
have interfered with the rijiht of another (o (he enjoy-
ment of a well or spring. We return to liie subject for
the purpose of calling your attention to a contlict of
authority upon this (iuesdon.
The rule of (he civil law may be translated into
English as follows: " If a man digs a well jn his own
held, and (hereby drains his neighl)ors, he may do so
unless he does it maliciously."
Acton V. Bluiulell, 12 M. & \V., 324.
A man's sense of natural justice ai»proves this rule.
No one should be permittetl wantonly and gratuitously (o
injure his neighbor, and the fact that the act complaine(l
of was one which he was authorized to do, having a legiti-
mate object in view, should not change the rule. If the
object and sole purpose of the act was to injure another,
he should be compelled to make such injury good, lint a
dillerent rule has been adopted by some of the courts.
—122—
It is said, if one liml authority to do the acts com-
plained of, and acted within that authority, ho is not a
lr('sj)asser, hocausc his motives or purposes with rej^ard to
the plaintiir were unkind or malicious.
Bonjiuiiin v. Wlu'elor, 4 (tray, 414.
Clmttk'Id V. Wilson, 2.S Vt., 49.
Contra,
Burke v. Smith, 69 Mich., 380.
llojitii V. Driscoll, 2(1 Conn., 533.
Wlieatley v. IJaugli, 2-5 Pa. St., 528.
Greenleaf V. Francis, 18 Pick., 117.
Panton v. Holland, 17 Johns, 92.
When one does an act upon the land of another,
whicii he is not authorized to do, and thereby injures that
other in the use of a well or spring fed by surface water
he is liable.
Parker v. Boston & M. R. R., 3 Cush., 107.
While the general principle stated above is unques-
tionably correct, it may be doubted whether the principle
was applicable to the facts in the case referred to. See.
New Albany R. R. v. PetersoD, 14 Ind., 112.
One may not collect water in a reservoir upon his
own lands and allow it to escape and percolate through
the soil to the injury of the land of his neighbor.
Wilson V. New Bedford, 108 Mass., 261.
RylandH v. P^letcher, L. R., 3 H. L., 3.30.
—V2^-
Thert' aro sovcial dicta in llu- »:i<«'-« ({((mI that a rij^lit
to the iis«' of siihtcirancan \vat»M's iniirlit lie aiMjiiin-tl Ijy
prcscriiilioiH, liiit it i> now Wfll si'tlU'tl tlmt it caniiot l»e
tliiK ac(jiiii(M|.
CuHemon' v. Uicluinls, 7 H. !> , Ciis , M'K
KHi!ITS OF KAVKS KHII'.
No out- may huilil liis lious.; so near llic line ol" liis
nt>ij:hl)or's land that the eaves will project over; such a
projection will constitnte a trespass. Neither may he
Itnild his honso and the eaves wholly on his own i)remises
in such a manner that the drip of the eaves will fall on
his nei|ihl)or's land.
If. however, the <lrip of the eaves fall npon an a<lja-
cent owners land, and continnes for a siillicient leni^th of
time, the owni'r of the house acquires a rij^hf to have it
continue hy prescription.
Curbri-y v. Willis, 7 AiU-n, ;ir,4.
Where such an easenient exists either by j;rant or
prescription, the owiipr of the dominant estate may not
increase the l)urilen of the servitude. He will not be
permitted to in<-rease the heii^ht of his buildinir, or collect
the drip and discharge it all at one point l)y means of a
spout or L'Utlel'.
Hi-y Ileitis V. Chirk, l! \M. Uayiu., 1309.
LECTURE XIII.
WATKH COURSES.
A water course usually has a continuous flow of water,
but such continuous flow is not essential to constitute a
water course. The flow may be intermittent, or periodi-
cal, provided it is somethinfi; more than the surface drain-
age from rain fall, or mere surface water. Althoujrh the
bed of the stream is dry most of the time, the riparian
owner has the right to have it maintained in its natural
condition, that he may have the use of the water when it
does flow and the channel as a drain at all times.
Ferris v. Wellborn, 64 Miss., 29.
Taylor v. Fickas, 64 Ind., 167.
Schlichter v. Phillipy, 67 Ind., 1201.
Eulrich v. Ricker, 37 Wis., 226.
Eulrich v. Kicker, 41 Wis., 318.
liobison v. Shanks, US Ind., 126.
West V. Taylor, 16 Or., 1<>j.
Moore v. Railroad, 7.") Iowa, 263.
Water courses are diviiled into two classes, navigable
and non navi-iable. Formerly navigable rivers were de-
fined to be rivers in which the tide ebbed and flowed,
indeed the term was re-tricted f<> so much- of such rivers
—125—
as wore ellbctcHl Ity llic liilc: Now tin- term iiavi^iablo
waters means,
1. All tide waters.
2. Such tide waters as can Ix' used for tin- i)iir]i<»se of
commercial navigation.
.'>. Any \vater which can be made available for the
transj>ortalion of merchandise by vessel, rafts or any other
means.
('I'liiUKiMWfiiltli V. Vini'trit, 108 Maus., 441.
Hlckok V. Hine, 2;J Oliio St., 523.
We shall recur to the distinction between navigable
and non-navigable streams hereafter.
Streams are often the natural boundary of private
lanils. In those streams where the tide ebbs and Hows
the soil beneath the water belongs to the state.
Rex V. Tiniity House, 1 Sid., SO.
Trasy v. Norich R. R., 39 Conn., 382.
A riparian owner whose land is bounded upon a non-
navigable water course owns to the thread of the stream,
and this is true whether the grant be made by a private
person or the state.
JciiniiiKs e.\ pare 6 Cow. 51vS-536 note.
The thread of the stream is usually regarded as the
center of the stream, foun'l \vith(»iil icLranl (o tlie llow of
water.
Knight V. Wilder, li CuhIi , in<,».
If the channel of the river is divided equally by a
—150—
niiddlo j:;romi(l or island, then the Ixmiidary line of each
l)n)i)rio(or is a liiu' riiiniiii;; parallel with the course of
the river and dividin":; the island into two etiiial i)arts: If
the channel is divided uneiiually, ( hen the smaller chan-
nel is ij:;iiore(l and the houndary line is the thread of the
main channel.
Ciooker v. BroKg, 10 Wend., 2(>0.
Trustees v. Dickinson, 9 Cusb., o44.
Watson V. Peters, 26 Mich., 50S.
Fletcher v. Tliunder Bay Boom Co., 51 Mich., 277.
If such middle ground is owned by a third person,
such person is a riparian owner as to each of the proprie-
tors upon the river, and the boundary line between his
lantl and the land of each of them is the thread of the
channel between the middle ground and the main land.
People V. Canal Appraisers, 13 Wend., 355.
When a description in a deed mentions the bank of
a river as the boundary line, bank and water are, in such
connection, considered as synonymous terms and the
grantee takes to the middle of the stream.
Gavit V. Chambers, 3 Ohio, 496.
St. Clair Co. v. Livingston, 23 Wal., 62.
When land is bounded upon an artilicial pond, like a
mill-pond caused by tiie overflow of a natural water
course, the grantee takes to the middle of the pond, or
rather to the thread of the stream, but when land is
liounded upon a natural pond or lake, the grant extends
only to the water's edge.
Wheeler v. Spinola, 54 N. Y., 377.
Seaman v. Smith, 24 111., 521.
—127-
ISI.ANDS.
W'lii-ii ;i projirirtor owns both Wanks of ;i stream, ho is
the owner of the initldle <;roiiim and all ishinds situated
ill the channel, not surveyed by the ^overntni'iit, or other-
wise excepted from its <;runt of the main hmd.
Uranger v. Avery, 04 Me., 292.
Jones V. Pettibone, 2 Wia., 308.
ALLUVION.
Alluvion is the addition made to land by the wasliini;
of tlie sea or rivers. It is defined to be an addition to
riparian land, j^radually and imperceptibly made by the
water to which the land is coiiti<;ii()iis. The test as to
what is gradual and iinperceptii)le in the sense of the rule
is, that, though the witnesses may see from time to time,
that progress has been made, they could not see it while
the process was going on. Whether it is the effect of
natural or artificial causes makes no difference. There-
suit as to ownership in either case is the same. The
riparian right to future alluvion is a vested right. It is
an essential and inherent attriljute of the original
property.
County of St. C'luir v. LovinRston, 2.'} Wul., 4»;, 02.
Tuppt'iulorfr V. DowiiiiiK. Tti ChI., iOit.
Rutz V. Seeger, 3") Fetl. llep., ISS.
Fllfniore v. Jennings, 7S Ciil., 034.
Wiggenhorn v. Kountz, 23 Neb., 6!»0.
Land t'oiiiKMl by alluvion is to be divided among the
shore owners so that each shall secure sucdi a share as he
is entitled to as indicated by the shore line of his land.
-128—
Deerfielii v. Anns, 17 IMck., 41.
Clark V. Canipau, 19 Mich., 325.
EmerHon v. Taylor, 9 Greene, 44.
Newton v. K.ldy, 2.S Vt., 319.
Hubbard v. Man well, (iO Vt., 235.
HELICTION.
If the course of ;i river is suddenly changed and it
forms a new channel, the land lying between the old and
the new channel is said to be relicted. When a river
suddenly changes its course, such change does not affect
the pre-existing boundary lines of riparian owners. For
instance, if the river X, the boundary line between the
lands of A and B, should suddenly ciiange the course of
its channel at the boundary line of A and B, and run
wholly through the lands of B, B would thereafter own
the entire river an 1 would not lose his right to the soil
relicted.
Woodbury v. Siiort, 17 Vt., 387.
Lynch v. Allen, 4 Dev. & Bat., (N. C), 62.
Rutz V. Seeger, 35 Fed. Rep., 188.
When, however, a river changes its main channel
merely, shifting it from one bank to the other, and the
old channel gradually tills up and becomes dry ground,
such made land belongs to tiie adjacent owner.
Trustees v. Dickinson, 9 Cusli., 544.
PROPERTY IN WATER COURSES.
A water course is a part of the freehold. While it is
said that there can be no ownership in the water of a
running stream, but only ownership in the right to use
- 129—
\ho water, such ownership is not fonfiiKMl to a mere ri;:ht
ill the nature ol" a license ami is not (lepeiuh'iil on lands
to which it nia\- he ai)pnrlenant, hut the ownership in the
use o(" the water may l)e separat(» and distinct rntiii owner-
-hip of the land.
ilall V. Ionia, .Is Mich., 4!i;{.
Knight V. Wilder, l! Cusli., lUit.
And. since a natiiial water course is a suhject of
property of which a freehold iiiay he ])redicated, it cannot
he coiiliscate(l hy the puhlic. If necessary for the puhlic
use, it inii>l he lakeii throuiih a proper exercise of the
rijrht of eminent domain.
McConl V. HiKh, 24 Towa, ;j;l6, :548.
Emery v. Lowell, 104 Mass., 13.
Every person throuirh whose lands a natural water
course runs, has a riiiht to the Ijenefit of it for all useful
purposes to which it may he applied, and no proprietor
may unreasonahly divert it from llowinj; onto his premises,
or ohstruct it in passing therefrom, or pollute it.
Joliiison V. Jordan, 2 Mete, 2.'U, 2:«).
Ulbrielit v. Water Work.s, Sfi Ala., .").S7.
Thi-^ rii^ht of user iiiiplics thai each proprietor may do
such acts as are reasonalde and re<juisite to enal)le him to
use the stream, and also that what one pro[)rietor is
authorized to do each aii«l eviTV one of the proprietors
may do. No accurate rule can he given which will meas-
ure the rights of owners under all circumstances. This
general rule may he taken as a guide : Each riparian
owner may make any rt'asonahle use of tlie water upon
—130—
liis premises, i)rovi(le(l ho does not there)>y deprive an-
other proprietor of a I'air and reasonable participation in
the use and benefits of a stream. Wiielher a given use is
reasonable, under all the eireumstances, takins:; into con-
sideration cspfcially its elfect upon the rijihts of Other
owners, is usually a question of fact for the jury to find.
Davis V. Getchell, 50 Me., 002.
Ferera v. Knii)e, 2S Cal., .341.
Anderson v. Railroad, 86 Ky., 44.
If such reasonable use injures one of the riparian
owners, he has no right of action, but if he is damaged
by an unreasonable use, he has a right of action. As
illustrating what has been held in this state to be an
unreasonable use, it has been decided, that one could not
dam up and retain the waters of a stream for the purpose
of flooding, so as to enable log owners to run out their
logs, to the detriment of a mill owner on the stream.
Woodin V. AVentworth, 57 Mich., 278.
One is entitled to the reasonable use of a stream
flowing through his jaml for domestic, agricultural and
manufacturing purposes. And if the use is reasonable,
one may deposit saw-dust and other refuse and waste
matter in a stream, and whether such use is reasonable or
not will depend upon a variety of circumstances — the
size of the stream, the force of the current and the dis-
tance to and the situation of the adjoining proprietors
who may be injured thereb\'.
Hayes v. Waldroii, 44 X. H., 58(».
Miner v. Gilinore, 12 Moore, P. C, 131, 156.
Oremerod v. Todinoriien, L. R., 11 Q,. B. D., 155.
—131—
One is not ]icniiiM('(l Id diviTt tlir wnlcrs of ;i stream,
except ill small (luaiililies ami lor purposes for wliieh the
riparian owner has a rijrht to ii<e the water. The diver-
sion must l>e to enal)le the owner to make a rightful ami
reasonable use of the water, and must not occasion an
unnecessary loss of the water lo the damajre of other
riparian owners.
Wailsworth v. Tillo.ston. 15 Conn., .'{GG.
MessiUjULTH Appeal, 10!) Ph. St., i!S").
Weis.s V. Orr^coii, etf., l.> Ort'^ori, 4!)G.
Colrick V. Swinbunii*, Id") N. Y., 503.
When the course of the stream, or the llow of a por-
ion of the water, is chani^ed within the limits of one.s
own land and the water is returned to its oriirinal channel
before leavin*:!; the lan<l, its llow n )t h iviui:; l)een materi-
ally diminished, such chani;e is not regarded as a diver-
sion and is rightful.
Pettiljone v. Smith, .'>7 Mich., 570.
It sometimes happens that the water in a stream is
insullicient to supply the legitimate wants of all the
riparian owners. In >uch a case, how shall the water l»i'
api)ortioned among them ^ Who is entitleil to have his
wants (irst supplied:' And what wants are entitled to
preference^ It seems to be well settled,
1. Tliat a riparian owner may freely use all the
water necessary for donu'slic imrposes and for watering
his stock. That the upper proprietor has the first right to
u-e I he waler for iho^i' pur[)oses, and if he should use the
whole of it, the other proprietor- would l»e without
remedv.
—132—
2. That the riparian owner may use a reasonable
amount for agricultural purposes, irrigation, but not an
unreasonable quantity.
These wants are given the preference over others for
very obvious reasons. Use of water for domestic pur-
poses is of primary importance, and there is almost a like
necessity for its use in watering stock. The right to use
water for irrigation is not so evident, but is based upon
the principle, that the harvest field is a primary necessity.
Evans v. Meriweather, 3 Scamm., 492.
Bliss v. Kennedy, 43 111., 67.
Stein V. Burden, 2<J Ala., 127.
Spence v. McDonough, Iowa, (1889).
The use of water must be such as will not corrupt it
and make it unwholesome.
Crossley v. Lightowler, L. R., 2 Ch., Ap., 478.
Crossley v. Lightowler, 36 L. J., Ch., 584.
Fergersou v. Mfg. Co., — Iowa, (1889).
LECTURE XIV.
TIIK USE OF WATER AS A MOTIVE POWER.
When tlie water of a stream is used to propel ma-
chinery, the conllicting interests of riparian owners often
presents many didienlt and perplexing qnestions. Tiiese
questions may arise between dillerent riparian owners
who are using the stream for the same purpose, or Ije-
tween a mill owner and a riparian owner, who is using
the water of the stream for some purpose other tiian pro-
pelling machinery.
In some of the states, there are special statutes which
provide that private property may be taken for mill pur-
poses. Decisions arising under tliose local statutes we
shall not examine.
In entering ujxju a consideration of this topic it is
necessary to deliiie what in the hiw is understood by the
terms '' mill site," " mill seat," or *' water power." These
several terms are practically synonymous in meaning. A
water power is usually described as consisting of so many
feet, which indicates the fall of the stream on the pro-
prietor's premises, being the difference between tiie level
of the surface of the water of the stream at tlie point
where it enters the land owner's [)r('niis('s ;ind the level of
the surface at the point where it leaves those premises.
:McCaIin()nt v. Wliittaker, :i Ruwie 84.
PluiukMii^h V. Dawson, 1 (Jiha., 544.
— 1:34—
A riparian proprietor luis a right to utilize a water
])o\ver l)y erectiiif^ a dam and temporarily impedinj; the
natural llow of tiie water of a stream. Such user of the
water is a natural user, and altliou^^h the natural and con-
tinuous llow of the water is thus temi)orarily impeded to
llie injury of a lower riparian owner he is not permitted
to complain.
Durnont v. Kellogg, 29 Micti., 420, 423.
Hoxie V. Hoxie, 38 Mich., 77.
Patten v. Marden, 14 Wis., 473.
With reference to the amount of water [)ower which
the riparian owner must huve in order to confer upon
him the rij^ht to pen up the waters of a stream, this is the
general rule. The power must be sufficient in amount to
enable the owner to apply it to some useful purpose. A
riparian owner may never wantonly, for no good and use-
ful' purpose, interfere with the natural flow of a running
stream, llis right to interfere with such flow at all is
merely incident to his right to use the waler. He has a
right to pen up the water to enable him to use it. U he
cannot use the water, he may not pen it up.
Wood V. Eden, 2 Allen, 578.
Burke v. Smith, 69 Mich., 330.
An owner of a mill site has a right to build a dam
across the stream which will raise the water at his own
upper line as high as the water was in the bottom of the
stream at the time he buihls his dam. In other words, he
has the right to so pen up the waters that when they
leave his premises he shall have the full beneflt of the
entire fall at one point.
—135—
McCalnioiit v. Whittaker, 3 Rawle, .S4.
Doiiiiaii V. Ames, 12 Minn., l")l.
In constructing his dam so as to obain the lull ad-
vantage of his mill site, the natural fall of tlie waters
upon his lands, the owner must not interfere with the
condition of the water in the stream above his premises.
He must not force the water hack upon those premises.
And at this point difficult questions are often presented
for solution. For instance, an upper owner claims that
his lands are flooded by reason of a dam erected on the
stream below him. The owner of the dam insists that
such flooding is not due to the dam, for the reason that
the height of the dam is considerably less than the fall of
the water, as ascertained by accurate measurements.
When a controversy of this kind arises, science must yield
to actual facts. The upper owner is not required to
explain how. (when there is a fall say of twelve feet
between his premises and the dam, and the dam is only
ten feet high), the dam causes the water to overflow his
premises, but if such is the fact, he can recover.
Alexander v. Busb, 45 Pa., Gl.
Fincli V. Green, 10 Minn., ."too.
Perry v. Biuney, lo.} Mass., 156.
The right which tlu' riparian owner has to a reason-
able use of the water in a stream is a right incident to
the ownership of the lami, ami is not aojuiri'd by grant
or prescription or liccnsi', and therefore, it may be stated
as an UM(]naliiit'(l proposition that no priority of (KH'Ui)a-
tion or use of water Ity a mill (»WM«'r upon a stream within
the limits of his own land i an atl'cct tlu' right of a riparian
—136—
owner ;il»()VO to croct ;iii<l opcralc a mill in a siiitaljle and
reasonalilc manner.
TIhiiIkt v. Mill-till. 2 CSniy, ;V.)4.
McDoimM V. Askew, 29 Ciil., 201, 207.
Duinoiit V. Kellogj,', 2!t Mich., 420.
Hut while one may not rightfully use the water upon
his own premises so as to interfere with the flow of water
upon another's premises, yet as a matter of fact in actual
life, it very often happens that the erection of a dam sets
water back for a considerable distance beyond the bound-
ary of the owner's land. When any such adverse user
continues for the statutory period, the owner acquires the
right to continue such user by prescription.
Townsend v. McDonaKl, 14 Barb., 4G0.
As we have seen, an easement cannot be acquired by
prescription, unless the user has been open, adverse and
continuous for the entire period. In case of a mill dam,
it is not the height of the dam which determines the ex-
tent of the easement, but the heii^ht at which the water
in the pond has been maintained.
Russell V. Scott, 9 Cow., 279.
Smith V. Hush, 17 Wis., 2.'?4.
(irisby v. Clear Lake Co., 40 ("al., 407.
Postlethwaite v. Payne, S Iiid., 104.
Flash boards are frequently used to increase the
height of a dam. When such boards are used for l)rief
periods and with little damage to third parties, such tiser
does not satisfy the requirements of the statute. The
~1H7—
l»<>anls must lie ii<t*(l so fonlimmiisly as lo make llnru in
liu't a pt'iiuamMit part of the darn.
Pierce v. TraviTHe, 1I7 Mutw., 3(Mi.
Marcly v. Sliults, Lll N. Y.. .iVi.
CurliHlc V. (•..(. ptT, '21 N. J. Kq., 570, ."ilX),
Hall V. Aiij,'sl.iiry, 4ti N. Y., filili.
Sonu'tinics a mill owMcr, for tlic pmposo of obtaining
a contiiinons supi»ly of water, imvcIs auxiliary dams on
the stream al)ovt' liis nniiti dajn. During; liij;li water all
the dams are lillt'd. and durini: l«>w water the lower, or
main dam, can he snpplied with water from the auxiliary
dams. By the erection of such auxiliary dams and their
continuous use for twenty years, the mill owner accpiires
an easement in the stream l>etween his main dam and
such upper dam to have the water tlow without harmfid
interruption, from the upper pond to the lower.
Hrace v. Yali-, 10 .Vlk-ii, 441.
Brace v. Yale. i»7 Mass.. 18.
Brace v. Yale, 9!) Ma.ss., 488.
The rij^ht to pollute water in a stream as aj^ainst other
riparian owners may he ac(|uire(l hy prescription.
Cro.ssley v. LIkIiIowUt, L. II., li t'h., 47S.
Crosslej" V. Lij^hlowltT. L. U., .'i lOij., Cas., 271).
Jones V. (!r(»\v', :\2 Vn. St., [VM.
McC'alluin v. Uerinaritowii, etc., ")4 Pa. 8t., 4<).
H(.ltiiiaii V. B-)ilint,' S. Bl. Co., 14 N. J., F:<i., 3.1"), M^.
Hut no one can hy irrant or prescription ac(piire the
rij;ht to maintain a i)uhlic nuisanc**. And, if hy the llow-
ai;e of lamls, or the polliit ion (tl' water, t he i)ul)lic health is
—138—
eiulaiigored, the Iciiiitli of liiiu; diiriiii: which the public
health has been eii(huiii;er('(l is wholy immaterial.
Wright V. Moore, 3S Ala., •V.i.'^.
State V. liaiikiii, .'} S. C, 438.
When a mill owner has acquired l)y j^rant, or pre-
scription, the right to maintain through the lands of an-
other, a tail race by means of which the water from his
mill is discharged, he may, when necessary, go upon such
lands to make repairs to the race.
Prescott V. Williams, 2 Mete, 429.
Fessendeu v. Morrisou, 19 N. H., 226.
The mill owner must not only make a reasonable use
of the water of the stream, both as to the quantity of wa-
ter used and the manner of its use, but the means which
he employs to use the water must also be reasonable and
suitable under all the surrounding circumstances. In
constructing his dam he must take into account the na-
ture of the stream. If freshets occur at stated periods,
or are liable to occur, he must make suitable provision
for tiie safety of his dam at such times. If the tlow of
water is limited, he must not erect a mill that will re-
quire him to retain the water for an unreasonable time.
Casebeer v. Mowrey, oo Pa. St., 418, 423.
Bell V. McClintoek. 9 Watts, 119.
Fatten v. Marden, 14 Wise, 513.
Merritt v. Brinkerhoff, 17 Johns, 30').
The use of a stream to furnish motive power being
a natural use, the mill owner is only required to use rea-
—139—
soiuil)K' ciirt' and prudence in iruunlinj; afrainst accidents,
ir damage rosnlts from vis major, he is not liable.
H.-ll V. Mc("Iiiit(.<-k, i) WattB, 119.
McCoy V. Dimly, L'n Pa. St., S").
Orinerod v. Totlinorden Mill C<»., L. 11. 11 l^. li. 1),, l.'w,
168.
The rule recjuires him not only to use reasonable care
and prudence in the constrnction of the dam in the iirst
instance, but also to maintain it in a safe condition. If he
sulfers it to become unsafe for want of repair, or for any
other reason under his control, and (hiniai^e is hereby
caused, he is liable.
Laphain v. Curtis, ") Vt., 371.
Soule V. Russell, 1;{ Mete, 436.
The mill owner, owninii both l)anks of the stream, has
a rifrht tf) an unobstructed llow of the water below his mill
for the [)urpitse of ventirif/, as it is calleil, the waters of his
pond, according to the natural course and descent of the
stream. A subsequent occupant of a mill site below can-
not back the water so as to deprive the Iirst proprietor of
this natural descent and llow. Ibit iti order to set up this
priority of riirht, the up[)er pr(»i»rie!(»r must own or con-
trol both baidvs of the stream.
Delaiiy v. linston, _' HHrrin^t, (Del.), 48!).
Hliss V. Rice, 17 Pick., 23.
When the land ui)()n opposite sides of a stream be-
longs to diU'erent rip:iriaii owners, they may unite and
erect a dam in common. In such c i-.e they become ten-
ants in common of the water power, although each must
—140—
apply it upon liis own premises. If either uses the water
in an iinreasonal)le manner, he is liable to tiie other for
the injury caused thereby. Neither can waste the water
to the prejudice of the other. Kach owner is bound to
keep his part of the dam in repair, so long as he uses the
water of the pond, and in case either ceases to use it, the
other may maintain and keep the dam in repair.
Runnels v. Bullen, 2 N. H., 532.
Converse v. Ferre, 11 Mass, 32o.
When two persons draw water for tlieir mills from
the same dam, and neither has anj'^ special right, by grant
or i)rescription, each may continue to use the water with-
out reference to its effects upon tiie other.
Brown v. Boweu, 30 N. Y. 519, 538.
At common law there is no process for dividing incor-
poreal hereditaments, like a joint water power, by what
answers to metes and bounds. But a partition may be
made by mutual arrangements, wliich shall determine the
quantity of water which each shall use, or tlie time or
manner of its use, and such arrangements will be enforced
by the courts.
Bard well v. Ames, 22 Pick., .333.
BliHS V. Rice, 17 Pick., 23.
Webb V. Mfg. Co., 13 Johns, 215.
Webb V. Mfg. Co., 17 Johns, 306.
Organ v. Railroad, Ark., 18S9.
Questions sometimes arise in regard to the proper
construction of a grant of water, for instance, whether*
tlie grant of sufficient water to run a mill of a certain
—141 —
kind, as a saw mill, jurist mill &c.. is a j^rant of water for
that particular kiii<l of mill exclusively, or whetiier those
words are descriptive of the amount of power granted,
whifh may he usimI for any lej^itimate purpose. As a
general rule, the court construes the language in such a
deed, to deline 11. e (pianlity of power granted, and not the
purposes to which it must be exclusively applied.
Biglow V. Buttle, lo Mass., 313.
Pratt V. Lanison, 2 Allen, 275.
A riparian owner cannot, except as against iiimself,
confer upon another, who is not a riparian owner, the
right to use the water of a stream. Any use of water by a
non-riparian owner, even under a grant from a riparian
owner, which diminishes the value of a strean to another
riparian owner, is wrongful.
Ormerod v. Todmorden «&c, L. R., 11 Q. B. D., loo.
Nuttall V. Bracewill, L. -R., 2 Ex., 1.
Holker v. Porritt, L. R., 8 Ex., 107.
Swinden Water Works Co. v. Wilts & Buks. Canal Nav.
Co., L. R., 7 H. L., G97.
Heilbron v. Forolu &c., 7o Cal., 420.
Haupt's Appeal, 125 Pa. St., 211.
While a non-riparian owner cannot by license or
grant acquire the rights of a rii>arian owner, still if his
use of the water does not in any way injure the other
riparian owners, by polluting the water or diminishing its
How, they have no reason to complain.
Kensit v. The G. E. R. R.. L, R., 27 Cli. 1)., 122.
Heilbron v. F. !S. and C. Co., 75 Cal, 420
LECTURE XV.
NAVIGABLE RIVERS.
At common law those rivers only are subject to the
servitude of the public interests, which are of common or
public use for the carriage of ]>oats and lighters in the
transportation of property. But in this country the pub-
lic right does not depend upon common or general use,
and it is generally held that all streams, which in the nat-
ural state have a capacity for valuable llotage, are navi-
gable.
Moore v. Sanborn, 2 Mich., 519.
Brown v. Chadbourne, 31 Me., 9.
Smith V. Fonda; 64 Miss., 551.
Commonwealth v. Vincent, 108 Mass., 441.
The courts of this state hold that if a stream is capa-
ble of being used for valuable llotage, either of boats,
rafts, shingle bolts, staves, poles, or other products of the
forest, then it is to be considered as navigable, and that
whether it has or has not heretofore been used for either
of those purposes, is immaterial.
Burroughs v. Wliitwan, 59 Mich., 279-285.
Thunder Bay River Booming Co. v. Speechly, 31 Mich.,
336.
—143-
Naviiiiihk* waters are public liii;li\vays at common
law.
La Plaisaiice Bay Harbor Co. v. Monroe., Walk. Cli., l.>j.
When a stream is valuable for the floating of vessels,
boats, rafts or logs, the owners of the bed are restricted in
the use of such stream to those uses wiiicii are not unrea-
sonably inconsistent with the enjoyment of that easement
by the public.
Brown v. Chadbourne, .'U Me.,, 9, 21.
Peters v. New Orleans R. R., .56 Ala., .528.
Tyrrell v. Lockhart, 3 Blaekf., 1.3fJ.
Hubbard v. Bell, 54 111., 110.
The use of a navii;al)le stream is open to everyone
equally, and no one has a rii;ht to occupy the channel for
a lon<!;er time than is reasonable, but when several persons
have filled the stream for a long distance with their logs,
the person first in has a right to claim the use of the cur-
rent first.
Butterfield v. Gilolirist, 5:5 Mich., 22.
Sullivan v. Jeinigan, 21 Fla., 2(54.
But when a boom c()m[)any needlessly or willfully
obstructs a stream, it is liable in damages to the persons
injured.
Watts V. Tittabawassee Boom Co., 55 Mich., 2o2.
The right of the public to use the waters of a navi-
gable stream is not subordinate to, but is concurrent with
thatoflh<} riparian owners, and conse<pientl3', if a boom
—144—
company in using the waters of u stream to lloat logs, use
reasonable care and skill, they are not responsible for
damages caused by the stream overllowing its banks, due
to tlie logs in the waters.
White River Log & B. Co. v. Nelson, 4-3 Mich., 578.
In all navigable streams the public have a right to
the use of the water for the purposes of free navigation.
And this right must not be interfered witli by any one to
the detriment of others. Usage and custom will not give
any one a rigiit to unreasonably interfere with the rights
of the public to use the waters of a navigable stream.
Gifford v. McAithur, 55 Mich., 535.
Field V. Apple River Log Driving Co., 67 Wis., 569.
Haines v. Welch, 14 Oregon 319
Fulmer v. Williams, 122 Pa. St., 191.
Orr Ewing v. Colquhouu, L. R., 2 App. Cas., 839,
Subject fo this right of the public to use the waters of
a navigable stream for the purposes of navigation, the
riparian owner's rights are not effected. He may erect
wharves near tiie shore, and persons navigating the waters
of the stream will not be permitted to land, except in
cases of necessity, without the permission of the owner,
and he has the right to make a reasonable charge for the
privilege of landing.
Brainbridge v. Shirlock, 29 Ind., 364, 369.
Estuiuger v. People, 47 111,, 384.
la England, under recent decisions, the riparian
owner owns the bed of the stream ad medium Mium aquoe
in all non-tidal rivers.
—145—
Orr Ewing v. Cohiuhoun. 2 App. Cas., 839.
Bristow V. Corniican, 3 App. Cas. 641.
Hargreavesv. Diddaius, L. R., 10 Q. B., 582.
The riij;ht of tlie public to use such stream for the
purposes of navigation depends, according to the English
courts, upon whether or not such right has been acipiired
by prescription.
King V. Montague, 4. B. C, oS'J.
Orr Pawing v. Colquhoun, 2 App. Cas., 839.
And such was \\\v rule as established by the early
decisions in this country.
Berry v. Carle, 3 Greene, 209.
But it is now iirnily established here that those rivers
are navigable in law which are navigable in fact.
Lorman v. Ben.son, 8 Mich., 18.
Cox V. State, 3 Blckf., 183.
Healy v. Joliet R. R., 2 111. App.. 435.
Hickok V. Hine, 23 Ohio St., 523.
Barnard v. Hinckley, 10 Mieli., 458.
Barnard v. Keokuk, 84 U. S., 324.
The ordinance of 17^T for the governtnent of the
Northwest territory provided (Art. 4) that ''the navigable
waters leading into the Mississippi and St. Lawrence, and
the carryi!ig places between the same, shall be common
highways and forever free, as well to the inhabitants of
said territory as to the citizens ol the United States, and
those of any other states that may l)e admitted into the
confederacy, without any ta.K, impost or duty therefor."
—146—
This provision has been construed by the supreme court
to vest in the several states the ownership of the l)ed of
navigable waters.
R. K. Co. V. Schuniu'ir, 7 Wall, 272.
Schunueir v. R. R. Co., 10 Minn, 5!t.
Under tiie common law, the ownership of the soil
under navigable rivers, vested in the sovereign and the
jurisdiction of the court of admiralty, extended over such
waters and was limited to them, and navigable waters
were held to be those in which the tide ebbed and flowed.
Constable's Case, o Coke, 106,
This definition would exclude from the jurisdiction
of the court of admiralty in this country, the inland
lakes and the great rivers above the tide limit. But our
courts have disregarded this definition of navigable waters
as wholly inapplicable to the waters of this continent.
Genesse Chief, 12 How., 443, 454.
Since the soil under navigable waters belongs to the
sovereign, it is held that land bounded by navigable water
and sold by the United States, is bounded by high water
mark; that the United States government, in all the ter-
ritories, holds the soil under such waters in trust tor the
future state, and that upon the admission of such terri-
tory into the union as a state, the title to such soil vests
in the new state.
Martin v. Waddle, 16 Pet., 367,
Pollard's Lessee v. Hagau, 3 How., 212.
Attorney Gen. v. City of Eau Claire, 37 Wis., 400-447.
Fulmer v. Williams, 122 Pa. St., 191.
-147—
Tlic owiici-liiit of the soil under iKivii^able waters,
bein^ in the state. Nvitliin whoso territory such lands are
situated, the decision of" the several state courts must he
consulted to determine whether or not in any j»articular
instance the rijiai'ian owner on a navifjjable stream owns
to the thread ol" the channel.
Gould on Waters, i,i,m-7U.
But the decisions of ail the i-()urls are unilorm in
holding that tin' lines run l>y the Tnited States surveyors
alonji the river hank are not the boundary lines of tlie
riparian owner; that he owns at least to the water's edge,
and that therefore all accretions belong to the riparian
owner.
lierison v. Morrow, HI Mo., 34").
Koss V. Faust, ")4 I ml., 471.
Rice V. Rucldinian, 10 Mich., 125.
Railroad Co. v. Scliuriaeier, 10 Minn., 59.
LAKES.
At common law thi' crown did not own the soil under
the waters of a fresh water lake.
Bristow V. Cormican, H App. Cas., <j41.
Marsliall v. Uileswater .tc, L. R., 7 Q. IJ., IGtl.
Marshall v. IJIlswater &c., .'{ B. & S. 732-742.
In this country a distinction is made between puldic
and private lakes, depending upon their size and value
for |»iir|ioses of navigal ion.
Verplaiik v. Hall. 27 Mich., 70.
State V. Franklin, A:c., 4!t N. H., 240, 250.
Rice V. Ruddinian, 10 Mich., 125.
Jakcway v. Barntt, 3S Vt., 31(5, 323.
LECTURE XVI.
RIGHTS OF FISHERY.
Wlien a person owns both banks of a water course, he
has the exclusive right of the use of the water within the
limits of his land, and when he owns one bank only such
right extends to the thread of the channel. Concomitant
with his ownership in the soil is an exclusive right of fish-
er}'. Tlie riparian owner has the exclusive right to take
iish irom any part of the stream witiiin his territorial
limits.
Gould V. James, -5 Cowan, 369.
It would seem that this rule was modified somewhat
in this state. The supreme court says that " such fishing
as is done with lines from boats, even in niirrow streams,
cannot be complained of by riparian owners. The fish
are like any other animals ferae natune^ and in this re-
gion have always been regarded as open to capture by
those having a riglit to l)e where they are captured."
Lincoln v. Davis, "iS Mich., 375-391.
liurroughs v. Wliitwam, 49 Mich., 270.
Our state court has also hoM tliat when the public
have not been notified and warned not to fish in lakes,
—140—
ponds and water courses, any one niuy understand that he
is licensed so to do.
Marsh v. Colby, 5!t Mich., (5i'<).
A license dilFers materially from a ri^lit, and the ques-
tion may he considered as still an open question in this
state.
At common law the riparian owner on a stream not
affected by the tide had an exclusive ri<;ht to fish in front
of his land to the middle of the stream.
Miilconison v. O'Keii, 10 H. L. Gas., 591-618.
Hargreaves v. Diddaais, 10 Q,. B., 5«2.
A similar rule exists in most of the states.
Com. V. Chapin,5 Pick., 19!J.
Com. V. Vincent, 108 Mass., 441-440.
Moulton V. Libbey, 37 Me., 472.
At common law all [xtsohs have a common and gen-
eral ri;j;ht to lish in the sea and in all rivers affected by
the ebb and flow of the tide, and the law makes no dis-
tinction in this respect between shell fish and swimming
and floating fish.
Weston V. Sampson, 8 Cush., 347, 355.
Lincoln v. Davis, 5.'5 Mich., 375.
It must be understood, however, that the right to take
lish from i)rivate or public waters may be regulated by the
legislatures of the several states. The legislature, as rep-
resenting the people, has a right to regulate the individual
and common rights of fishing in the interests of the state.
11
—150—
Within a few years the attention of the public has been
especially called to this subject, and in many of the states
oflicial boards exist whose duty it is to see that the stat-
utes are strictly enforced which have been enacted for the
purpose of preserving game fish. The extent of these
interests in many of the states fully justifies this action.
In this state, according to the census of 1880, there was
over (jne-half million of money invested in tli*^ business of
fishing, giving employment to nearly two thousand men,
and the value of the catch was about $3,250,000.
Howell Statute, Chap. 68.
The riparian owner has tiie sole right to fish with nets
or seines in connection with his own land, even in those
waters where the the public have a common fishery. The
right of the public to fish in the water gives them no right
to the use of the soil of the riparian owner.
Hart v. Hill, 1 Wharton, 138.
Lay v. King, 5 Day (Conn.), 72.
Under the statutes of this state, persons are prohib-
ited from driving stakes or erecting platforms in front of
the lands of a riparian owner, between the bank and
thread of the stream, or within one mile of the shore on
the great lakes.
Howell, §2172.
Our courts have construed this statute to give the
shore owner an exclusive right to fish with such appli-
ances as require that they should be fastened to the soil.
They say the riparian owner on the great lakes owns to
low water mark but has the right to erect wharves and
— IT)! —
other structures in iVoiit ol' his picniisps wliir-h will not
interfere with navij^iition.
Lincoln V. Davis, o3 Mich., 37o-38o.
AinoiifT other ri»!;hts which he has under the statute
is the exclusive rijL!:iit to tiike fish within one mile of the
shore.
Howell, ?2172.
But this right to fish is a right belonging to all the
citizens of the state in coninion, which must l)e exercised
subject to the right of navigation, and is under the control
of the legislature.
Lincoln v. Davis, 5;{ Mich., 37o-38.5.
But this does not prohibit the people from fishing
from Ijoats with lines or in any other manner.
Lincoln V. Davis, 53 Mich., 37.">.
At common law the owner of lands bounded by waters
where the tide ebbed and flowed, owned to high water
mark only, and in many places the land between high and
low water mark became valuable lisheries for shell fish.
Such fisheries were held to belong to the public, subject
to the pul)lic control.
Moulton V. Libby, 37 Me., 47li.
A SEVERAL FISHERY.
A\'hen (here is an exclusive right of fishery it is called
a several fishery. The owner of both Itanks of a private
—152—
water course has a several fisliery. It was for some time
a mooted question whether a several fishery could be
granted separate and distinct from the soil, but it is now
established by judicial decisions that one may have a
grant of a fishery and have no other distinct interest in the
freehold.
Marshall v. Steam Nav. Co., 11.3 E. C. L., 7;53, 747.
Beckmau v. Kraemer, 43 111., 447.
FREE FISHERY AND COMMON OF FISHERY.
Some text writers have sought to make a distinction
between a free fishery and a common of fishery, defining
the first to be one in which several persons have a right to
fish, but not the public at large, and that the latter is one
where the public generally have the right to fish. They
are practically treated as syonymous terms. A several
fishery is not necessarily confined to one single person, but
a free fishery implies, as the nan.e would indicate, that it
is open and free to the public, a common of fishery.
Angell oa Water Courses, §§75, 76, 77.
PROFIT A PRENDRE.
KproM a prendre is the right which the owner of one
tenement has, as appurtenant to such tenement, to enter
upon and enjoy some privilege in another tenement of
some pecuniary value amounting to a profit in the soil.
Hill V. Lord, 48 Me., 83, 96.
There is a plain distinction between an easement and
a profit a prendre. An easement is a right appurtenant
—153—
to tlu' tlomiiiMiit c'stiite to inako soiml' u^c oI" I lie sjTvitMjt
estate, (lie wluilt' .idvantajje of which is fouml in the in-
creased value of tlie dominant estate, due to his ri«^ht to
use the servient estate and not to anythinfi taken out of
or from the servient estate, wiiile 'A. profit a prendre is, as
the term implies, a rigiit to take a profit I'roni I lie servient
estate.
The distin<:;uisliinn characteristics of an easement and
a proiit a prendre are lud always on the surface. For in-
stance, the ri;i;ht to enter upon the close of another, and
erect booths upon certain public days, or to play at any
lawful frames or sports, and to derive a profit therefrom is
an easement,
Abbott V. Weekly, 1 Lev., 176.
Fitch V. Rawliiig, '1 H. BIk., 393.
So the right to enter upon the land of another and
take water from a running stream is an easement. Hut a
right to enter upon the land of atiother and take water
from a well or cistern is a jirotit a j)rendre.
MjiiiiiiiiK V. \Viis(i;ile, 81 E C. L., 758.
Ruce V. Want, 82 E. C. L., 700.
The right to enter upon the lands of another Id hunt,
to fish in an unnavigal)le stream, to take sand from the
beach, or to take seaweed deposited by the tide, is \\ profit
a prendre..
WaterH v. Lilly, 4 Pick., 14o.
Tiiiicuni Fishing Co. v. Carter., (il Pa. .St., 21, 39.
Pickering v. Noyes, 10 E. C. L., 4liit.
Jilewett V. Trigonnirig, ;{(t E. C. L., lo.
ilill V. Lord, 48 Me., 83, 99.
LECTURE XVII.
LICENSE.
You must distinguish an easement from a license.
This is not always an easy task, for the distinction be-
tween the two, in a certain class of cases, is exceedingly
subtle,
A license is an authority or power to do a particular
act, or series of acts, upon another's land, without possess-
ing an estate therein, amounting to a mere personal right,
determinable at the will of him who gives it, not transfer-
able to another person and not within the statute of frauds.
Morrill v. Mackman, 24 Mich., 279.
Prince v. Case, 10 Coun., 375.
Wood V. Leadbitter, 13 M. & W., 838.
Fletcher v. Evans, 140 Mass., 241.
Being essentially a power, it does not matter whether
it is created by a parol or by an instrument under seal ; in
either case it is revocable at the will of the licensor.
Simpkins v. Rogers, lo III., 397.
Mumford v. Whitney. 15 Wend., 380.
Pittman v. Poor, 38 Me., 237.
Wood V. Leadbitter, 13 M. & W., 838.
A license is revoked bv the death of the licensor or
-155-
hy his sale of the property to which the license pertains.
Ruj?);les v, LcHure, 54 Pick., 187.
I)e Huro v. Uiiitetl Stiitess, .'> Wall., 29!i, Gl!7.
Coke. Lilt., 52, b.
Rust V. Conrad, 47 Mich., 44!l.
Foote V. New Haven, «fec., 2;i Coon., 214.
Simpson v. "Wright, 21 111., Aj)p., (17.
Biirksdale v. Hariston, St Va., 704.
liarry v. Worcester, 14.'i Mass., 47fj.
Cox V. Leviston, 63 N. H., 283.
Winne v. Ulster, &c., 37 Hun., 340.
A license is limited to the person to whom it is given
and cannot be transferred by him to a third person. Li-
censes are strictly conlinecl to the original parties.
Desloge v. Pearce, MS Mo., oSS.
Cowles V. Kendall, 4 Foster, 364.
Although a license created by deed is revocable at
the will ol the licensor, it is not always easy to determine
whether the deed creates a mere i)Ower or an interest in
land. If the instrument, considered as a whole, discloses
an intent mi the part of the grantor to convey an interest
in land, it is not a license.
Dodge V. McClintock, 47 N. H., 383.
MeCrea v. Marsh, 12 Gray, 211.
Hunt V. Romania, S Wheat., 174.
Muskett V. Hill, 35 E. C. L., 272.
The Johnson Iron Co. v. The Cambria, &o., 8 Casey, 241.
When a license is an incident to a grant, and neces-
sary to the enjoyment of the grant, it is !iot to be consid
ered as having an existence apart from the grant. It is
—156—
then not a mere license and is not revocable at will.
While the grant continues the license exists. For in-
stance, if a man sells a stack of hay in his field, there
passes to the purchaser, as incident to the title and right
of possession, a license to go upon the land and remove the
hay within a reasonable time.
Wood V. Leadbitter, 13 M. & W., 838.
Parish v. Kaapare, 109 Ind., 586.
Wood V. Manly, 39 E. C L., 19.
Patrick v. Cvlerick, 3 M. & W., 482.
Heath v. Randall, 4 Cush., 195.
It may be stated generally that where a license is nec-
essary in order that a person may enjoy an interest given
him, such license cannot be revoked by the grantor while
the interest continues.
Brown v. Harlow, 53 Mich., 507.
Rogers v. Cox, 96 Ind., 157.
Such interest must, however, be a valid interest. If
the interest claimed is an interest in lands created by
parol, and such large sums have not been expended as will
induce the court to treat it ;is an executed contract, the
license is revocable.
Taylor v. Gerrish, 59 N. H., 5G9.
Croukhite v. Cronkhite, 94 N. Y., 323.
So that, in examining the question whether a particu-
lar license or power is or is not revocable, you are first to
determine whether it stands alone, independent and by
itself, or whether it is incident to a grant. If it stands
solitary and alone, it is revokable at will, no matter how
— ir>7—
it may have been created, wliethei- by parol or Ijy an in-
strument under seal.
Siujpkiiis V. K()>,'ers, lo III., 307.
Mumfoni v. Whitney, lo Weiul., 380.
When a license is incident t(^ a j^rant, it is important
to ascertain if the j^rant is a valid grant. If the grantee
claims an interest in real estate, it must be created by an
instrument in writing, or it will be void under the statute
of frauds. For instance, a parol sale of standing timber
is void under the statute, but is a good license to enter
upon the lands and cut timber until revoked, but it is re-
vocable at pleasure. If, however, there is a valid sale of
the (iml)er, the license to go upon the land and cut and
remove the timber is incident to the grant and irrevocable.
Combe v. Burke, 2 Hill's, (S. C.) 534.
Desloge v. Pearce, 38 Mo., 588.
Houston V. Laffee, 4G N. H., 505.
As we have seen, when the vendee has purchased
property, a stack of hay for instance, situated on the land
of the vendor, he has an irrevocable license to enter and
remove the hay ; but suppose, on the other hand, he has
received permission to^ enter u[)on the land of another
and stack his hay there. This is a very diflerent case.
To enter \\\>()n land and remove hay gives no interest in
the land, but to enter mton land for the i)urpose of placing
hay there, and keeping it there, is an interest in land.
Desloge v. Pearce, 38 Mo., 588.
MeCrea v. Marwh, 12 Gray, 211.
Although a license is revocable at will, it is a defence
—158—
for :ill ;i(fs done in imrsiiance of il, while it remains in
lone. Inilcfd, when the license empowers another to
enter upon lands and erect strnctiires there, the licensee is
not only not a trespasser in ;j:oini: upon tlie land and erect-
iufx, the structures, hut upon revocation of sucdi a license
he will still have, lor a reasonable time, the rijLdit to go
ui)on the land ami lemove his property.
Pierre|)()iit v. iiarnard, 2 8el., 271).
Riddle v. Brown, 20 Alti., 412.
Bogert V. Haight, 20 Barb., 251.
Smith V. Goulding, 6 Cush., 154.
Spalding., v. Archabald, 52 Mich. 3G5.
As a corrollary to the last proposition, after the license
has been revoked, the licensee cannot be compelled to re-
store the licensor's land to the condition it was in before
the acts done under the license. For instance, if he was
authorized to dis a ditch and did so before the license was
revoked, he cannot be compelled to fill it up. For the
same reason, it is held that when the licensee erects a
buildini!; upon his own premises which interfere with some
rig;ht of the licensor, he cannot be compelled afterwards
to remove it.
Morse v. Copeland, 2 Gray, 302.
Woodward v. Seeley, 11 111., 1">7.
There is anotlier "-lass ol cases in which the rights of
parties are uncertain and shifting. A mere naked license
may, through the conduct and acts of the parties, bud and
blossom into an irrevocable contract. It is a license to-
day, an easement to-morrow.
This may be due to an estopel en pais^ as where the
licensor permits the licensee to do some act upon the
-159—
li(MMise«*N promises wliidi ilestroys or interferes witli some
ri;,'lit w lii<li tlif licensor had in tlutse premises ao appur-
tenant lo liis own.
Winter v. Hrockwtll. H Kast/dm.
LiggiuH V. Inge, et al., 12 E. C L., 2n7.
Wiien the lifense is in ell^'ct an oiler to sell, and there
has been an aci-eptance hy a pari performance, the license
cannot l»e revoked. l*'or inslaiK-e, if a jx'rson iiives a rail-
road comi)any j»ennission to enter upon his lands and con-
struct a road, such license, after the road is constructed
cannot l»e revoked.
IJuker V. Cluc'iigo, R. I. & P. R. U., '.T Mo,, lit).'').
R. U. V. liuttle, W N. C, 540.
Horiiback v. It. It., 20 Ohio St., 81.
Earl of Jersy v. H. V i\: 1)., Co., L. It., 7 E<i., 409.
Curiipl.illa-. I. it V. R. R., 1H> Iiid., 4!mi.
Harlow V. n..iijr|,t„ii ,S: o. R. R., \\ Midi., .(.'jt;.
-S. It. R. V. Mit.-liell, 0'.( (ia., 114.
T. & St. L. It. R. V. .Jarrell, tlO Te.x., l.'G7.
Siiiiiiion.s V. Morehousi', S.s Intl., ;{!»!.
Where the licensee has, on the strength <tf' the license
and with the licensor's kno\vledj;e, expended larji;e sums
of money, and he would sulFer j^reat and irreparable loss
if the license were revoked, many of the courts have held
that the licen.se was in elfect a contract, and the e.xpendi-
ture of money was an execution of such contract which
to<d\ it out of the statute of frauds.
Rerick v. Kern, 14 S. & R., 207.
Snowden v. Wllji.s, l!t I ml., to.
WickersliaiM v. Orr, Iowa, 2").'{.
Russell V. lluhbani, .V.i 111., ',i:i'>.
Lee V. McLeotl, 12 Nev., 2.S0.
Itaritan v. Veghte, 21 N. .J. E<i., 4G3.
—160—
It is lu'ld, liowoviT, in othor states, that a mere license
cannot l)y tlie expendilure ot money by tlie licensee be
developed into a contract.
Janiieson v. Millenian, 3 Duer, 2.55.
Prince v. Case, 10 Conn., 375.
Haya v. Richardson, 1 Gill. & J. (Md.), 3GG.
Stevens v. Fitch, 11 Mete, 248.
Cook V. Stearns, 11 Mass., 533.
In this state the qnestion is K^lt in donl)t.
Maxwell v. Bay City, &c., 41 Mich., 453, 407.
When, however, both parties can Ije placed in statu
quo without serious detriment to either, what was a license
in its inception will not be treated as a contract when ex-
ecuted, and may be revoked at any time.
Druse v, Wheeler, 22 Mich., 439.
Weinenian v. Lucksinger, 84 N. Y., 31.
Maxwell v. Bay City, 41 Mich., 453.
St. Louis V. Wiggins, 112 111., 384.
Rayner v. Nugent, 60 Md., 515.
Courts have sometimes been disposed to regard acts
done under a license as constituting a basis for a claim to
an easement l)y adverse user.
House V. Mongomery, 10 Mo. App., 170.
Nichols V. Wentworth, 100 N. Y., 455.
CONTENTS.
LECTURE I.
FixTURKS.— Definition. Wiiiit constitutt'?* a Jixture. Actual
Hiinexation. Constructive unuexation. Ailaptatioa to use. In-
tention to make tlie lixtnri' a ptMinaiiciit addition to the realty.
LECTURE IL
Fixtures, Contcnued. — Fixtures annexed by owner of
realty. Character of fixtures as between vendor of cliattle and
mortgagee of realty. Fixtures wrongfully annexed to realty.
Ornamental and iionsehold lixtures.
LECTURIO III.
Fixtures, Continued.— Charaeter of, as between liandlord
and Tenant. What fixtures may be removed by tenant. Wiien
tliey may lie removed. Riiilroail rolling,' stock.
LECTUKK IV.
Easement.— Delinition. Kssential nualities. Continuous
and discountinuous ea.Hemenls. How createtl- by express grant,
im|>lied grant and imitlied reservation in grant, by prescription,
by custom.
—102—
LECTURE V.
Easemknts, Continued.— Dominent and servient estates.
Rights and duties of the owners of dominent and servient estates.
Classification of easements. Public ways. How established,
LECTURE Vr.
Easements, Continued. — Public ways. Established by
user or prescription, or by dedication, or exercise of right of emi-
nent domain. Duty of public to keep public ways in repair
LECTURE VII.
Easements, Continued.— Private ways. Created by grant,
or reservation, by prescription. Ways of necessity.
LECTURE Vril.
Easements, Continued.— Ways now extinguised— by re-
lease, by non-user, by exercise of right of eminent domain, by
unity of title. Remedy for obstruction to private ways. Ease-
ments in light ami air. Right to lateral support. Natural and
artificial use of land.
LECTURE IX.
Easements, Continued.— Lateral support. Rules govern-
ing liability of persons making excavations for damages caused
thereby. Subjacent support of land. Party walls, liow owned.
LECTURE X.
Easements, Continued.— Who required to repair party
walls. When party wall may be rebuilt and when not. Con-
tracts with reference to party walls. Easements of support when
several i)ersons own same tenement.
— 1C3—
LECTURE Xr.
EaSKMKNTS, CONTINUKI*. — Purtitioii fcllceH.
LECTURE XII.
Easkmknts, C'ontinuki).— Surfat-e water. Conuiioii and
(•ivil law rule U8 tori|^h( of drainage of surlace water. Subterru-
iiean waters. Wells and spriii^a. Eaves <lri|».
LECTURE XIII.
Easemicnts, Contixukd.— Water courseH. Navigable rivers,
their claasiticution, Riparian owners. Islands. Allnvion. Re-
liction. Property in water courses.
LECTURE XIV.
Easkments, Continued. — The use of water as a motive
power. Rigiits of mill owners. Pulution of water, etc.
LECTURES XV.
Easements, Continued, — Definition of navigable rivers in
this country. Rights of the public in navigable rivers. Rights
ofrii)arian owner. Ownership of the bed of the stream. Lakes.
LECTURE XVI.
#]asements, Continued. — Rights of Jishing. Several fish-
ery. Free fishery and common of fishery. Pro/it a jtrendre.
LECTURK XVII.
Easements, Continued.— License. Distinction between
liceuse and easement. License coupled with an interest. License
may become an easement.
UC SOUTHERN REGIONAL LIBRARY FACILITY
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UNIVERSITY OF CAUFORNIA LIBRARY
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This book is DUE on the last date stamped below.
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