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cases which depend upon particular facts illustrating the admissibility of parol evidence to aid in construction of descriptions, see Lulay v. Barnes, 172 Pa. St. 331 (34 Atl. Rep. 52).

EASEMENTS.

EPITOME OF CASES.

Sec. 201. Creation of by prescription. One who uses a crossing over a railroad track for the prescriptive period acquires an easement in the way. Hardy v. Alabama & V. Ry. Co., 73 Miss. 719 (19 So. Rep. 661). If the public, with the knowledge of an owner of land, claims and continuously exercises the right of using the same for a public street or highway for a period equal to that fixed by the statute for the limitation of real actions, the highway thereby becomes established, unless it appears that such use was by fear, leave or mistake. Waring v. City of Little Rock, 62 Ark. 408 (36 S. W. Rep. 24). Citing, Howard v. State, 47 Ark. 431 (2 S.W. Rep. 331); Patton v. State, 50 Ark. 53 (6 S. W. Rep. 227); Onstott v. Murray, 22 Iowa 458. For case which depends upon particlar facts and illustrate the creation of an easement by a reservation in a deed, see Russell v. Heublein, 66 Conn. 486 (34 Atl. Rep. 486). For case depending upon particular facts and which illustrate when an easement may be acquired by user or prescription, see Leonard v. City of Detroit, 108 Mich. 599 (66 N. W. Rep. 488). The basis of an easement by prescription is the presumption of a grant and thi presumption does not arise as against one under legal disabilities. Saunders v. Simpson, 97 Tenn. 382 (37 S. W. Rep. 195). In Illinois it is held that the use of private property in order to ripen into a prescriptive right, must be adverse to the owner, that mere prescriptive use is never sufficient, and that in order to establish a public highway by prescription over uninclosed lands there must be something more than mere travel over it by the public. Travel over a way claimed by prescription may slightly deviate from the

thread of the road to avoid obstruction and still not change the road itself, but a prescriptive right cannot be acquired to pass over a tract of land generally, but must be confined to a specific line or way-to a definite, certain and precise line. City of Ottawa v. Yentzer, 160 Ill. 509 (43 N. E. Rep. 601). In order to establish a prescriptive right, the use must be of substantially the same road, but temporary changes from a given line will not destroy the right. Under the Pennsylvania statute Act April 12, 1859, which provides that such a way cannot be acquired by user where it passes through uninclosed woodland, it is held that the fact that a portion of the way passed through improved land would not create the right over that portion which passed through woodland. Kurtz v. Hoke, 172 Pa. St. 165 (33 Atl. Rep. 549). Where the plaintiff's use of a way was at its inception permissive, its mere continuance for the statutory period will not ripen into a hostile right. Pennsylvania R. Co. v. Hulse, 59 N. J. L. 54 (35 Atl. Rep. 790). An easement in the nature of a private way is not acquired by prescription where the user by the claimant is conjointly with the true owner. Long v. Mayberry, 96 Tenn. 378 (36 S. W. Rep. 1040).

Sec. 202. Creation of a highway by adverse useConstruction of statutes-Creation of municipality. The Iowa Code, § 2031, provides, "In all suits hereafter brought, in which title to any easement in real estate shall be claimed by virtue of adverse possession of the same for the period of ten years or by prescription, the use of the same shall not be admitted as evidence that the party claimed the easement as his right, but the fact of adverse possession shall be proved by evidence distinct from and independent of the use, and that the party against whom the claim is made had express notice thereof; and these provisions shall apply to public as well as private claims." Construing and applying this statute the supreme court of that state say: To establish a highway by prescription, under this statute, the fact of adverse possession must be established by evidence distinct from and independent of the use, and by evidence that the party against whom the claim of adverse user and possession is made had express notice of such user and claim of possession. It follows

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that it is not enough, to establish a highway by prescription, to show mere use of the land as a highway, even though the owner had actual knowledge of such use. He must have 'express notice that a claim was made, based thereon, independent of or additional to the mere use.' State v. Mitchell, 58 Ia. 568 (12 N. W. Rep. 598); Zigefoose v. Zigefoose, 69 Ia. 392 (28 N. W. Rep. 654). The adverse possession must be actual, continued, visible, notorious, distinct, and hostile, and commenced under a claim or color of title.' Booth v. Small, 25 Ia. 177." Gray v. Haas, 98 Ia. 502 (67 N. W. Rep. 394). If there is a common law dedication of a public highway or street to public use prior to the existence of a municipal corporation, then upon such corporation coming into being, the use of the highway or street in trust for the public at once vests in such municipality. v. North Peoria, 160 Ill. 277 (43 N. E. Rep. 347).

Waggeman

Sec. 203. Creation by grant. A deed providing that the grantor, as part consideration, "agrees to open and use as a private alley" a specifically described strip of land, across other land belonging to him, to the land conveyed, "to be used as a private alley" as long as the grantee required it, and reserving title to the strip in the grantor, conveys an easement of a private alley way. Shannon v. Timm, 22 Colo. 167 (43 Pac. Rep. 1021). A grant of "an alley in common for the purpose of passing and repassing," means that the alley may be used for the passage of teams and vehicles as well as for foot travelers. Gillespie v. Weinberg, 148 N. Y. 238 (42 N. E. Rep. 676). A court of equity will give effect to a parol grant of an easement where there has been a valid consideration, where the grant is certain in its terms, and where there has been such a performance on the part of the grantee, as would, in the case of a contract for the sale of the fee, take the case out of the statute of frauds. Gilmore v. Armstrong, 48 Neb. 92 (66 N. W. Rep. 998). A vendor, in selling different portions of his property to others, may impress upon it by private contract rights analagous to the public rights of highway, and yet those rights be confined to the owners and representatives of the land forming the subject of the compact; and the fact that such a way opens upon

a public street does not make it a public highway. De Gril eau v. Frawley, 48 La. 184 (19 So. Rep. 151). Where from all the circumstances surrounding the grant of a right of way to one and his heirs and assigns forever" show that it was for the purpose of enabling him to have access to his lands, it will be construed as appurtenant to such lands and not as a grant in gross. Hopper v. Barnes, 113 Cal. 636 (45 Pac. Rep. 874).

Sec. 204.

Construction of grants of easements. It is held that the grant of " the privilege of the main alley leading to the Palace Stables,' so called as an easement for ingress and egress along the north line or alley line of the premises hereby deeded, for the distance of 98 feet west from Franklin street, and no more, and for no other purpose," should not be restricted to any particular mode of ingress or egress, but that the right should extend to whatever use was necessary for any business which the grantee might take on the premises, and that a change of use in the premises did not destroy the easement. Arnold v. Fee, 148 N. Y. 214 (42 N. E. Rep. 588). In the construction of a grant of an easement, the surrounding circumstances are to be considered for the purpose of explaining any ambiguity or uncertainty in the instrument, but not for the purpose of creating a new and different contract in the place of that made by the parties. Mineral Springs. Mfg. Co. v. McCarthy, 67 Conn. 279 (34 Atl. Rep. 1043). In the grant of a way, it will be presumed to be the intention of the parties, that the grantee shall have all the things necessary to the use and enjoyment of the way granted, which the grantor had the power to convey. White v. Eagle & Phoenix Hotel Co., N. H. (34 Atl. Rep. 672).

Sec. 205. Way of necessity-Implied grant of. In a recent case it is said: "Where a person conveys to another a piece of land surrounded by lands of the grantor, the grantee and those claiming under him have a right of way by necessity through the lands of the grantor, as an incident of the grant. This principle applies where the land conveyed is surrounded in part by the lands of the grantor, and

in part by the lands of a third person. The grantor in such a case has the right to designate the track or way, having due regard to the rights of both parties; but if he declines or omits to exercise that right, the grantee may select for himself, and will be supported in his selection unless chargeable with palpable abuse. A right of way of necessity over the lands of a grantor in favor of a grantee and those subsequently claiming under him, is not, however, a perpetual right of way, but continues only so long as the necessity exists." Palmer v. Palmer, 150 N. Y. 139 (44 N. E. Rep. 966; 55 Am. St. Rep. 653). Where the owner of adjoining tracts of land conveys one and retains the other, and there is no access to the land retained except by a way over the land conveyed, the reservavation of such way will be implied from the necessity of the Willey v. Thwing, 68 Vt. 128 (34 Atl. Rep. 428).

case.

Sec. 206. Abandonment or vacation of an easement. An easement appurtenant to a mill for the use of water is not abandoned by the mere nonuser of the mill under such circumstances as do not clearly show an intention to abandon the easement. Smith v. Hope Min. Co., 18 Mont. 432 (45 Pac. Rep. 632). A temporary nonuser of the easement will not work its abandonment. Manning v. Port Reading R. Co., 54 N. J. Eq. 46 (33 Atl. Rep. 802). When the dedication of an easement is once complete it is irrevocable. No obstruction of the subject of the dedication or encroachment upon it by the original owner of the soil or by any one else will affect the dedication or impair the right of the public to its benefits, unless the land so dedicated has been abandoned by the public or by the proper authority. Buntin v. Danville, 93 Va. 200 (24 S. E. Rep. 830). Citing Harris' Case, 20 Grat. 833; Skeen v. Lynch, 1 Rob. (Va.) 186; City of Cincinnati v. Lessee of White, 6 Pet. 431; Adams v. Railroad Co., 11 Barb. 414; Cook v. Harris, 61 N. Y. 448: City of Dubuque v. Maloney, 9 Iowa 455 (74 Am. Dec. 358); Washb. Easem. 188, and cases there cited; and Elliott, Roads & Sts. 152. The vacation of a highway when duly and legally effected, involves something more than mere constructive closing. It involves a physical closing as well, which entitles the owners of the soil once occupied by the highway to take

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