ways, which lead from town to town; nor yet of common ways, leading from a village into the fields; (19) but of private ways, in which a particular man may

(19) Ways are either public or private. A public way is established either by the dedication of the owner of the land, or by an appropriation of the land for the purpose, by the sovereign authority, under what is called the right of eminent domain. When this right is exercised, it must be in pursuance of some express legislative authority which prescribes the formalities, and compensation must be made to the owner. The constitutions of the United States and of the several states contain declarations that private property shall not be taken for public use without compensation made therefor, but these are only declaratory of the pre-existing principle. Dedication of a way is an appropriation of land to that use by the owner thereof, and requires for its perfection an acceptance by the public. The dedication can only be made by the owner of the fee: Wood v. Veal, 5 B. and Ald. 454; and therefore where land is under lease, the fact that the public are permitted to make use of a way across it will not be evidence of a dedication, unless there be circumstances from which the knowledge and concurrence of the owner of the reversion can be implied. Rex v. Barr, 4 Camp. 16; Daviesv. Stephens, 7 C. and P. 570. No writing is required to establish a dedication, and no particular formality. The mere throwing open the land to the use of the public for a way constitutes ipso facto and instantaneously a dedication, if the public accept it. Hunter v. Trustees of Sandy Hill, 6 Hill, 407. The intent to dedicate, however, must be unequivocal; it will not be implied from any acts of an ambiguous character. The fact that the owner acquiesced in the use and enjoyment of the way by the public for twenty years would be sufficient evidence of such intent in any case: Smith v. State, 3 Zab. 130; State v. Marble, 4 Ired. 318; but it might also be inferred from an uninterrupted use for a much less time. The question is one of fact, to be passed upon by jury. See Angell and Durfee on Highways, c. 3; Hobbs v. Lowell, 19 Pick. 405; Pritchard v. Atkinson, 4 N. H. 1; Stacy v. Miller, 4 Mo. 478; Morrison v. Marquardt, 24 Iowa, 35; Noyes v. Ward, 19 Conn. 250. A common mode, by which a party who temporarily allows the public to pass over his land negatives an intent to dedicate, is by fencing up the passage one day in the year, or doing some other unequivocal act in assertion of his paramount right. Cook v. Hillsdale, 7 Mich. 115. Acceptance by the public may either be by some formal resolution or other action by the proper authorities, or it may be inferred from circumstances. The mere fact that any number of individuals pass through a passage left open to them does not constitute an acceptance, but if the proper highway authorities treat it as a public way, either by expending public moneys upon it, or by setting it off into some road district for supervision and repair, they thereby accept it. See Kelly's Case, 8 Grat. 632; Hobbs v. Lowell, 19 Pick. 405; Wright v. Tukey, 3 Cush. 290; People v. Jones, 6 Mich. 176. And long continued user by the public is important evidence bearing on the question of dedication, and may in some cases be sufficient to warrant its being found. See Angell and Durfee on highways, § 161, and cases cited. A dedication may be of a part of a road only, as well as of the whole of it. Valentine v. Boston, 22 Pick. 75.

Ways are also often dedicated by laying out plats upon which streets and roads are marked, and selling lots in reference thereto. There are statutes in the several states which prescribe the effect of such plats, when duly acknowledged and recorded. If, however, the plat is not so executed as to comply with the statute, it will still be regarded, when acted upon, as an offer to the public of the streets marked upon it, and they become public ways when accepted as in other cases. And if there be no act of acceptance on the part of the public, there is nevertheless a right in those who have bought lots upon the plat with reference thereto to have all the ways laid down thereon kept open for their use with reference to the enjoyment of their purchases. Matter of Lewis street, 2 Wend. 472; Smyles v. Hastings, 22 N. Y. 217; Smith v. Lock, 18 Mich. 56; see O'Linda v. Lothrop, 21 Pick. 292.

Prescription which presupposes a grant is not properly applicable to highways.

Highways are for the use of all the public, though the mode of use may be restricted, as to foot passengers, &c. Restricted highways, however, are very rare. Turnpikes and other roads, which are constructed and controlled by corporations created for the purpose, are nevertheless public highways; the whole public having an equal right to use them on complying with the prescribed terms. Railroads are sometimes called public highways, though persons can pass along them only in the vehicles which the proprietors provide.

As a general rule the owner of land bounded on a highway owns to the center, subject to the public easement, and he may make any use thereof not inconsistent with the public occupancy, and maintain ejectment against any one who makes a permanent appropriation of any portion to the exclusion of himself and the public. Goodtitle v. Alker, Burr. 133; Gardiner v. Tisdale, 2 Wis. 153.

A private way is either a right in gross, which is purely a personal right and cannot be assigned, or it is appurtenant or annexed to an estate and passes with a conveyance of the estate. It may exist of necessity or by grant. A way of necessity exists where land is granted which is either wholly surrounded by land of the grantor, or partially by such land, and elsewhere by land of strangers. In such a case if there be no other way to the land, the law presumes that it was the intention of the parties that the grantee should have access to it over the land of the grantor, and he has a way across such last mentioned land in order to make his grant available. Washburn on Easements, ch. 2

have an interest and a right, though another be owner of the soil. This may be grounded on a special permission; as when the owner of the land grants to another a liberty of passing over his grounds, to go to church, to market, or the like in which case the gift or grant is particular, and confined to the grantee alone: it dies with the person; and, if the grantee leaves the country, he cannot assign over his right to any other; nor can he justify taking another *person in his company. (0) A way may be also by prescription; as if all the inhabitants of such a hamlet, or all the owners and occupiers of [*36]

such a farm, have immemorially used to cross such a ground for such a particular purpose: for this immemorial usage supposes an original grant, whereby a right of way thus appurtenant to land or houses may clearly be created. Ă right of way may also arise by act and operation of law; for, if a man grants me

(0) Finch, Law, 31.

$2; Lawton v. Rivers, 2 McCord, 445; Wissler v. Hershey, 23 Penn. St. 333; Nichols v. Luce, 24 Pick. 102; Pheysey v. Vicary, 16 M. and W. 484; Underwood v. Carney, 1 Cush. 285; Thomas v. Bertram, 4 Bush. 317. If, however, the grantee has a way of access to the land granted, but not so convenient as the one over the grantor's land, a way of necessity will not exist over the latter, for mere convenience is not sufficient to raise the implication of an intent to give it. Turnbull v. Rivers, 3 McCord, 131; Screven v. Gregorie, 8 Rich. 158; McDonald v. Lindall, 3 Rawle, 492. If a grantor conveys land entirely surrounding a parcel which he retains, he has a way of necessity over the land conveyed, which likewise rests upon the supposed intention of the parties. Brigham v. Smith, 4 Gray, 297; Pinnington v. Galland, 20 E. L. and Eq. 561; Id. 22 Law J. Rep. (N. S.) Exch. 348.

If, however, in any case a way of necessity would be inconsistent with a grant, it cannot exist, because the intent to create it cannot be implied. As, where land is conveyed for a specific purpose, and a way across it would defeat that purpose. Seeley v. Bishop, 19 Conn. 134.

Wherever a right of way of necessity exists, the owner of the estate over which it is to pass has the right to locate it, but if he shall fail to do so within a reasonable time after request, the person entitled to it may select a suitable route therefor, having reasonable regard to the interest and convenience of the owner of the estate. When once selected by the party entitled to do so, it is fixed, and cannot afterwards be changed except by consent. Holmes v. Seely, 19 Wend. 507; Nichols v. Luce, 24 Pick. 102, A right of way of necessity is limited to the necessity, and ceases whenever the owner thereof, by purchase or otherwise, acquires a way of access over his own land to the land in respect to which it existed. Pierce v. Selleck, 18 Conn. 321; Viall v. Carpenter, 14 Gray, 126; Holmes v. Seely, 19 Wend. 507; Abbott v. Stewartstown, 47 Ń. H. 228. Ways by grant are either granted separately, or as appendant or appurtenant to an estate which is conveyed. Their location is either defined by the grant, or it becomes fixed by the use of one party and the acquiescence of the other, or, in the case of ways appurtenant to an estate granted, it has been defined by previous use. A right of way may also be created by the grantor reserving it in the grant which he makes of the land.

In the case of a private way, the land owner has a general right to make use of the land in any manner he may please, not interfering with the easement. Atkins v. Bordman, 2 Met. 457. He is under no obligation to keep the way in repair unless he has bound himself to do so, nor is he obliged to suffer the party entitled to the easement to pass over the land elsewhere, if the way has become impassable. Miller v. Bristol, 12 Pick. 550; see also, Capers v. McKee, 1 Strobh. 164. The rule is different in the case of public ways, for if a highway be out of repair and impassable, the traveller may go upon the adjoining premises, doing no unnecessary damage. Williams v. Safford, 7 Barb. 309; Campbell v. Race, 7 Cush. 403; Holmes v. Seely, 19 Wend. 507. And in the case of a private way, if the owner of the estate obstructs it, the person entitled to the easement may pass around the obstruction upon other lands of the owner, without rendering himself liable. Farnum v. Platt, 8 Pick. 339.

Ways may also exist by custom; as that every inhabitant of a borough shall have a right of way over a parcel of land to mill or to market; but these are not frequent in America. When they exist they must rest on a user of at least twenty years.

The doctrine of dedication has no application to private ways. A private way may, however, be established by prescription. If a person has used a way over the land of another for twenty years, it will be presumad that the use had its origin in a grant, provided the following things concur: 1. The use must have been definite, both as to manner and as to locality. 2. It must have continued for the whole period without interruption. 3. It must have been accompanied by a claim of right adverse to the owner of the land, and not have been under leave and license of the owner; for if the claim has been in subordination to the right of the owner, a grant could not be presumed, since that would be inconsistent with the claim. The law of prescription is one of quiet, and is based upon the presumption that a long-continued use of land adverse to the interest of the owner would not have been acquiesced in, unless it had its origin in right. See Wallace v. Fletcher, 10 Fost. 434.

a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come at it; and I may cross his land for that purpose without trespass. (p) For when the law doth give any thing to one, it giveth impliedly whatsoever is necessary for enjoying the same. (4) By the law of the twelve tables at Rome, where a man had the right of way over another's land, and the road was out of repair, he who had the right of way might go over any part of the land he pleased: which was the established rule in public as well as private ways. And the law of England, in both cases, seems to correspond with the Roman. (r) (20)

(p) Ibid. 63. (q) Co. Litt. 56.

(r) Lord Raym. 725. 1 Brownl. 212. 2 Show. 28. 1 Jon. 297.

(20) This statement is erroneous. He would only have that right where the owner of the land was bound by grant or prescription to repair the way. See Taylor v. Whitehead, Doug. 746. See also the preceding note.

It will be observed that the subject of easements receives very little attention from our author, and indeed the subject then was of very little consequence as compared with its importance at the present time. For a full discussion the reader is referred to the special treatises, and espe cially that by Mr. Washburn, as the latest and most complete.

An easement exists when the owner of one tenement, called the dominant tenement, has a right to compel the owner of another, called the servient tenement, to permit something to be done, or to refrain from doing something, which, as owner of his tenement, he would otherwise have been entitled to restrain or to do. An easement must be limited in extent, and must be in some way for the benefit of the dominant tenement, and not for some general benefit of its owner. Clayton v. Corby, 5 Q. B. 415; Ackroyd v. Smith, 10 C. B. 164; Bailey v. Stephens, 12 C. B. N. S. 94.

Among the principal easements, besides the right of way already mentioned, are the right to water, the right to light and air, the right to the natural support of the land, the right to the support of buildings by adjacent land or adjacent buildings, the right to have party walls and fences kept in repair, and the right to carry drains and gutters across adjoining land. A deed is necessary to create an easement by grant or reservation; and, where one is thus created, the grant gives to the owner of the dominant tenement the right to go upon the servient tenement, and do thereon whatever may be necessary to enable him to enjoy the easement. An easement may also exist by prescription, where the enjoyment has been for such a period of time that the law will presume a grant. And, upon this point, reference is again made to the preceding note.

The right to the flow of water in its natural course we have considered elsewhere, and need not do further here than to refer to the excellent treatise on water-courses by Mr. Angell. This right, however, is to be distinguished broadly from that to receive or to carry off water through an artificial channel, for it is inseparably annexed to the soil, and passes with it, not as an easement, nor as an appurtenance, but as a parcel. Johnson v. Jordan, 2 Metc. 239. The other right referred to is strictly an easement, and may be created in the same manner as a private way, and is governed by substantially the same rules. One who has a right to receive water for the use of any species of manufacture may do whatever is necessary for its enjoyment, but he has no right to foul the water by turning the refuse of the manufactory into it. Howell v. McCoy, 3 Rawle, 256. And an easement to drain water through the land of another for one purpose cannot be changed and enlarged by putting it to use for another purpose. Carter v. Page, 8 Ired. 190. Upon this subject, in general, see Pyer v. Carter, 1 H. and N. 922; White v. Leeson, 5 id. 53; Pheysey v. Vicary, 16 M. and W. 484; Alston v. Grant, 3 El. and Bl. 128; Ferguson v. Witsell, 5 Rich. 280.

The right to enjoy, in favor of one tenement, the right to light and air which naturally reaches it in coming laterally from and across the land of an adjacent proprietor, is an important right in the civil law, and in the law of England, but is relatively of little consequence in America, where the English doctrine, that a prescriptive right to light and air may be gained by mere length of enjoyment, has generally been discarded. See Washb. on Easements, 498 et seq., where the cases are collected.

Every man has a right to the natural support of his land by the adjacent land of another, so that, if the owner of the latter shall make excavations within his own boundaries, into which the land of the first shall fall, an action will lie for the injury. Harris v. Ryding, 5 M. and W. 60; Bibby v. Carter, 4 H. & N. 153; Thurston v. Hancock, 12 Mass. 226; Lasala v. Holbrook, 4 Paige, 169; Foley v. Wyeth, 2 Allen, 131; Richardson v. Vt. Cen. R. R. Co., 25 Vt. 465. But it seems that this right is limited to injuries caused to the land itself, and does not afford relief for damages by the same means to artificial structures. Foley v. Wyeth, 2 Allen, 131; Charless v. Rankin, 22 Mo. 571. If, however, an injury is caused to a building by a negligent excavation on adjacent land, an action will lie for the injury. Farrand v. Marshall, 19 Barb. 330. And the unqualified right to lateral support for buildings may be acquired in the same way as any other easement.

Easements may be lost by ceasing to enjoy the right for such time and under such circum stances as to indicate an intention to abandon the same. Luttrel's Case, 4 Rep. 86; Hale v

V. Offices, which are a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, are also incorporeal hereditaments; whether public, as those of magistrates; or private, as of bailiffs, receivers, and the like. For a man may have an estate in them, either to him and his heirs, or for life, or for a term of years, or during pleasure only save only that offices of public trust cannot be granted for a term of years, especially if they concern the administration of justice, for then they might perhaps vest in executors or administrators. (s) (21) Neither can any judicial office be granted in reversion: because though the grantee may be able to perform it at the time of the grant, yet before the office falls he may become unable and insufficient: but ministerial offices may be so granted; (t) for those may be executed by deputy. (22) Also, by statute 5 and 6 Edw. VI, c. 16, no public office (a few only excepted) shall be sold, under pain of disability to dispose of or hold it. For the law presumes that he who buys an office will, by bribery, extortion, or other unlawful means, make his purchase good, to the manifest detriment [*37] of the public. (23).

VI. Dignities bear a near relation to offices. Of the nature of these we treated at large in a former book; (u) it will therefore be here sufficient to mention them as a species of incorporeal hereditaments, wherein a man may have a property or

estate.

VII. Franchises are a seventh species. Franchise and liberty are used as synonymous terms; and their definition is (v) a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject. Being therefore derived from the crown, they must arise from the king's grant; or in some cases may be held by prescription, which, as has been frequently said, presupposes a grant. (24) The kinds of them are various, and almost infinite: I will here briefly touch upon some of the principal; premising only, that they may be vested in either natural persons or bodies politic; in one man or in many; but the same identical franchise, that has before been granted to one, cannot be bestowed on another, for that would prejudice the former grant. (w)

To be a county palatine is a franchise, vested in a number of persons. It is likewise a franchise, for a number of persons to be incorporated, and subsist as a body politic; with a power to maintain perpetual succession, and do other corporate acts and each individual member of such corporation is also said to have a franchise or freedom. Other franchises are to hold a court leet: to have a manor or lordship; or, at least, to have a lordship paramount; to have waifs, wrecks, estrays, treasure-trove, royal fish, forfeitures, and deodands: to have a court of one's own, or liberty of holding pleas, and trying causes; to have the

(8) 9 Rep. 97.
(t) 11 Rep. 4.
(w) 2 Roll. Abr. 191. Keilw. 196.

(u) See book 1, ch. 12.

(v) Finch, L, 164.

Oldroyd, 14 M. and W.789; Ward v. Ward, 7 Exch. 838; Carr v. Foster, 3 Q. B. 581. And, where the same party becomes owner of both the dominant and servient tenement, the easement is extinguished. Washb. on Easements, 517-522. And an easement may be discharged by release to the owner of the servient tenement; but the release must be by deed. Dyer v. Sanford, 9 Met. 395.

(21) The term of office in the United States is never longer than during good behavior, and even then, unless the term is fixed by the constitution, it is subject to change by law, and may be shortened or abolished at the will of the legislature. By choosing a person to an office, the term of which is prescribed by law, the state does not contract with him that he may enjoy it during the term, or preclude itself from repealing or amending the law under which the office exists. Butler v. Pennsylvania, 10 How. 402; Conner v. New York, 2 Sandf. 355, and 5 N. Y. 285.

Offices in private corporations and companies are employments of a private character, in the nature of agencies only.

(22) [See R. v. Farrand, 3 B. and A. 260; R. v. Gravesend, 2 B. and C. 602; R. v. Roberts, 3 A. and E. 771. If two offices are incompatible, by the acceptance of the latter, the first is relinquished and vhcant, even if it should be a superior office. 2 T. R. 81.]

(23) [See statute 6 Geo. IV, cc. 82, 83; 11 id. c. 20. § 47; 2 B. and Cr. 674; 4 Ves. 815; 3 You, and J. 136; 3 T. R. 681; 6 J. B. Moore, 28; 8 Cl. and Fin. 295.]

(24) [See Trotter v. Harris, 2 Y. and J. 285; R. v. Marsden, 3 Burr. 1812.]

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cognizance of pleas; which is a still greater liberty, being an exclusive right, so that no other court shall try causes arising within that jurisdiction: to have [*38] a bailiwick, or liberty exempt from the sheriff of the county; *wherein the grantée only, and his officers, are to execute all process; to have a fair or market: with the right of taking toll, either there or at any other public places, as at bridges, wharfs, or the like; which tolls must have a reasonable cause of commencement (as in consideration of repairs, or the like), else the franchise is illegal and void: (x) or, lastly, to have a forest, chase, park, warren, or fishery, endowed with privileges of royalty; which species of franchise may require a more minute discussion.

As to a forest; this, in the hands of a subject, is properly the same thing with a chase; being subject to the common law, and not to the forest laws. (y) But a chase differs from a park, in that it is not enclosed, and also in that a man may have a chase in another man's ground as well as in his own, being indeed the liberty of keeping beasts of chase or royal game therein, protected even from the owner of the land, with a power of hunting them thereon. A park is an enclosed chase, extending only over a man's own grounds. The word park indeed properly signifies an enclosure; but yet it is not every field or common, which a gentleman pleases to surround with a wall or paling, and to stock with a herd of deer, that is thereby constituted a legal park: for the king's grant, or at least immemorial prescription, is necessary to make it so. (2) Though now the difference between a real park, and such enclosed grounds, is in many respects not very material: only that it is unlawful at common law for any person to kill any beasts of park or chase, (a) except such as possess these franchises of forest, chase or park. Free-warren is a similar franchise, erected for preservation or custody (which the word signifies) of beasts and fowls of warren; (b) which, being fera [*39] naturæ, every one had a natural right to kill as he could; but upon the introduction of the forest laws, at the Norman conquest, as will be shewn hereafter, these animals being looked upon as royal game and the sole property of our savage monarchs, this franchise of free-warren was invented to protect them; by giving the grantee a sole and exclusive power of killing such game so far as his warren extended, on condition of his preventing other persons. A man therefore, that has the franchise of warren, is in reality no more than a royal gamekeeper; but no man, not even a lord of a manor, could by common law justify sporting on another's soil, or even on his own, unless he had the liberty of free-warren. (c) (25) This franchise is almost fallen into disregard, since the new statutes for preserving the game; the name being now chiefly preserved in grounds that are set apart for breeding hares and rabbits. There are many instances of keen sportsmen in ancient times who have sold their estates, and reserved the free-warren, or right of killing game, to themselves; by which means it comes to pass that a man and his heirs have sometimes free-warren over another's ground. (d) A free fishery, or exclusive right of fishing in a public river, is also a royal franchise; and is considered as such in all countries where the feudal polity has prevailed; (e) though the making such grants, and by that means appropriating what seems to be unnatural to restrain, the use of running water, was prohibited for the future by King John's great charter; and the rivers that were fenced in his time were directed to be laid open, as well as the forests to be disafforested. (f) This opening was extended by the second (g) and third (h) charters of Henry III, to those also that were fenced under Richard I; so that

(x) 2 Inst. 220.

(y) 4 Inst. 314.

(z) Co. Litt. 233. 2 Inst. 199 11 Rep. 86.

(a) These are properly buck, doe, fox, martin, and roe; but in a common and legal sense extend likewise to all the beasts of the forest; which besides the other, are reckoned to be hart, hind, hare, boar, and wolf and in a word, all wild beasts of venary or hunting. (Co. Litt. 233.)

(b) The beasts are hares, conies, and roes; the fowls are either campestres, as partridges, rails. and quails; or sylvestres, as woodcocks and pheasants; or aquatiles, as mallards and herons. (Co. Litt. 233.) (c) Salk, 637.

(e) Seld. Mar. Claus. I. 24. Dufresne, V, 50%. Crag. de Jur. feod. II, 8, 15.

(g) Cap 20.

(d) Bro. Abr. tit. Warren, 3.

(h) 9 Hen. III, c. 16.

(f) Cap. 47, edit. Oxon.

(25) [A free warren may be granted at this day, though such a grant is not usual. Cruise Dig tit. 34, § 4.]