657 J77 (Jflrtif U Ham i>rljnnl IGihtarg Cornell University Library KF 657.J77 A treatise on the law of easementsin con 3 1924 018 769 871 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018769871 Cegal ffljaorks of ilronarlf a. gonrs. A TREATISE ON THE LAW OF MORTGAGES OF REAL PROPERTY, Fifth edition, Revised and Enlarged. Two vol- umes, 8vo, pages 983, 1006. Price, $12.00. A TREATISE ON THE LAW OF CORPORATE BONDS AND MORTGAGES. Being the Second Edition of Railroad securities revised. One volume, 8vo, 680 pages. Price, $6.00. A TREATISE ON THE LAW OF MORTGAGES OF PER- SONAL PROPERTY. Fourth Edition, Revised and Enlarged. One volume 8vo, 900 pages. Price. $6.00. A TREATISE ON THE LAW OF PLEDGES, INCLUDING COLLATERAL SECURITIES. One volume, 8 vo, 634 pages. Price, 6.00. A TREATISE ON THE LAW OF LIENS, COMMON LAW, STATUTORY, EQUITABLE AND MARITIME. Second Edition. Two volumes, 8vo, 800 pages each. Price, $12.00. These works, treating of the three forms of security upon prop- erty, — Mortgages, Pledges and Liens, — while separately com- plete, have been prepared with a view to the relations of the subjects to each other ; and each treatise contains references to the others, so that all together constitute one work upon the subject of Property Securities. FORMS IN CONVEYANCING. Comprising Precedents for Ordinary use and Clauses adapted to Special and Unusual Cases, With Practical Notes. Fourth Edition. One volume, 8vo, 975 pages. Price, $5. 00 AN INDEX TO LEGAL PERIODICAL LITERATURE. One volume, large. 8vo, 654 pages. Price, half turkey morocco or half calf, $10.00. A TREATISE ON THE LAW OF REAL PROPERTY, as ied between Vendor and Purchaser in Modern Coveyancing, or Estates in Fee and their transfer by Deed. Two volumes, Bvo, 850, i,Si8 pages. Price, $12.00. A TREATISE ON THE LAW OF EASEMENTS. In con- tinuation of the Author's Treatise on the Law of Real Property. One volume, 8vo, 850 pages. Price, $6.00. The above works in the latest editions for sale by BAKER, VOORHIS, & CO., 66 Nassau St., New ITork. A TREATISE ON THE LAW OF EASEMENTS IN CONTINUATION" OF THE AUTHOE'S TEEATISE ON THE LAW OF REAL PROPERTY BT LEONARD A^ JONES, A. B., LL. B. [Harv.] NEW YORK BAKEE, VOOEHIS & COMPANY 1898 Sopyright, 1898 Bt LEONARD A. JONES. All rights reserved. TEED-PARSONS PRINTING COMPANY, PRINTERS AND ELECTROTYPERS, ALBANY, N. Y. TO THE HONOEABLB JAMES TYNDALE MITCHELL JUSTICE OF THB SXJPRBMB COTJKT OF PENNSYLVANIA AS A TOKEN OF FRIENDSHIP 50R A HARVARD CLASSMATE AND IN APPRECIATION OF THE ESTEEM IN WHICH HK IS HELD AS A JURIST AND JUDGE THIS WORK IS DEDICATED BY THE AUTHOR PREFACE. In this volume I take up the consideration of those incorporeal hereditaments which are called Easements, or nses and profits in the land of another. It is a continuation of my work upon the Law of Heal Property, and is written, as that was, with the intention of stating the law of the subject with such completeness as to make the treatise valuable to the courts and to practising lawyers. The sub- ject is one that presents many difficult questions, and to such of these as seemed to be of practical importance I have given much attention; but have not sought out or dwelt upon those that seemed to be for the most part theoretical. In fact, all through the volume I have given my attention to those parts of the subject that are of general and every-day use, more fully than to others not of such practical importance. Thus, I have devoted seven chapters to the subject of Private "Ways and one to Public "Ways, embracing together about one-third of the volume, because rights of way are of greater practical importance than any other division of the sub- ject of Easements. I have cited a great number of cases, about five thousand, and beheve that they will generally be found to fully support the propo- sitions to which they are cited. It should, however, be kept in mind that the writer of a legal text-book often cites cases which are not decisions sustaining the statement in his text, but only contain dicta, or, perhaps, a discussion of the matter in hand, or a reference to it, without any expression of opinion by the court. A writer who undertakes to make a reasonably full citation of authorities would be considered much in fault if he merely cited those decisions which squarely meet and sustain his text. vii PBEFACE. It is quite possible that I may hereafter write upon some other important divisions of the Law of Keal Property; and if I do, the volumes will be published under specific titles, as a continuation, and not as an inseparable part of my work upon Real Property. L. A. J. Boston, January 1, 1898. viii TABLE OF CONTENTS. PART I. EASEMENTS IN GENERAL AND THEIR CREATION. CHAPTER I. EASEMENTS DEFINED AND DISTIN&UI3HED. SECTIONS I. In general ... 1-17 II. Appurtenant to land 18-32 III. In gross 33-48 IV. Profit h prendre 49-62 V. License 63-79 CHAPTER IL CHEATED RY GRANT. I. In general 80-88 II. By exception or reservation 89-103 III. By covenant or condition 104-117 IV. Notice to purchaser . . . . . 118-125 CHAPTER IIL BY IMPLIED GRANT UPON SEVERANCE. I. By implied grant . . .... 126-135 II. By implied reservation 136-142 III. "When continuous and apparent . . , . . 143-153 IV. The element of necessity 154-157 ix TABLE OF CONTENTS. CHAPTER IV. CREATED BY PRESCRIPTION. I. Period requisite to establish II. What adverse uses is requisite III. Use by license or permission IV. Interruption of use and resistance to it V. Extent of right acquired SECTIONS 158-163 164-178 179-186 187-199 200-20a PAET II. SPECIFIC EASEMENTS. CHAPTER V. WAYS BY GRANT. I. "W hether of fee or only of an easement II. Easement implied from boundary by way III. Easement implied from map or plan IV. Grantor estopped to deny existence of way V. Dedication to private or public use VI. Extent of the right granted . 204-226 227-230 231-236 237-242 243-246 247-253 CHAPTER VI. WAYS BY IMPLIED GRANT. Implied grant of a way upon severance of an estate 254-265- CHAPTER VII. WAYS BY PRESCRIPTION. I. How established .... II. "W hen the use is permissive only III. Extent of right acquired 266-281 282-289' 290-297 TABLE OF CONTENTS. CHAPTER VIII. WAYS OF NECESSITY. I. Founded on Implied grant or reservation II. "What necessity is requisite III. Extent of the way implied . IV. Location and change of the way V. Duration of the right .... SECTIONS 298-314 315-322 323-326 327-333 334-336 CHAPTER IX. LOCATION OF WAYS. Location of ways 387-354 CHAPTER X. LIMITATION OF WATS. I. By express terms of grant . II. Appurtenant to particular land III. As to width, extent and time IV. To previous use V. Unrestricted grants . VI. Implied limitation . VII. Construed by acts of parties 355-359 360-363 364-370 371-372 373-381 382-388 389-390 CHAPTER XL OBSTRUCTION OF WATS. I. Use in general II. Covering over with building III. Erecting gates and bars 391-394 395-399 400-419 CHAPTER XII. PUBLIC RIGHTS OF WAT. I. Dedication at common law II. Statutory dedication 420-445 446-448 XI TABLE OF CONTENTS. III. Acceptance of dedication .... IV. Public rights of way by prescription V. Extent of the public easement VI. Telegraph and telephone lines in highways VII. Street railroads in highways VIII. Elevated and steam railroads in highways . IX. Abandonment and destruction of public ways SECTIONS 449-456 457-477 478-493 494-498 499-505 506-528 529-552 CHAPTER XIII. LIGHT AND AIR. I. Express grant or covenant . II. By implied grant or reservation III. By implied grant in case of lease IV. By prescription 553-556 557-569 570-572 573-584 CHAPTER XIV. SUPPORT. I. Nature and application of the easement of lateral sup- port to land . 585-596 II. The easement of subjacent support .... 597-603 III. Application of the easement of lateral support as regards buildings 604-609 IV. Care and skill in excavating 610-619 V. The damages recoverable 620-631 CHAPTER XV. PARTY - WALLS. I. Definition and statutory provisions . II. Party -wall agreements, express and implied III. Using a party-wall ..... IV. Whether the agreement runs with the land V. "Windows and other openings in VI. Right to build higher . . . . Vn. Removing and rebuilding xii 632-640 641-662 663-667 668-686 687-695 696-705 706-724 TABLE OF CONTENTS. CHAPTER XVI. WATER. SECnOMS I. Flowing streams and surface water distinguished . 725-736 II. Ownership and use of flowing water . . . 737-754 III. Pollution of streams 755-758 rV. Rights as to surface water 759-779 V. Rights as to percolating and subterranean water . . 780-786 VI. Rights acquired by grant 787-793 VII. Rights acquired by prescription .... 794-810 PAET III. REPAIRS, EXTINCTION, AND REMEDIES. CHAPTER XVII. REPAIRS AND ALTERATIONS. I. Repairs and renewals in general . . . . II. Alterations by the owner of the dominant estate III. Alterations by the owners of the servient estate 811-825 826-829 830-833 CHAPTER XVIII. EXTINCTION; I. By unity of the dominant and servient tenements . 834-837 II. By destruction of that upon which the easement, depends 838-844 III. By voluntary abandonment or incompatible acts . . 845-862 IV. By non-user and adverse possession .... 863-871 CHAPTER XIX. REMEDIES AT LAW. 872-877 CHAPTER XX. REMEDIES IN EQUITY. I. Injunctions to prevent injuries . II. Injunctions for the removal of obstructions III. Abatement of obstructions . . . . 878-888 889-890 891 yii^ TABLE OF CASES. References are to Sections. Aaron v. Gunnels 160, 164, 370, Abbott V. Butler 355, V. Cottage City V. Kansas City, St. Jo. & C. B. R. Co. 759, V. Mills V. New York & N. E. E. Co. T. Stewartson 331, 384, Abendroth v. Manhattan R. Co. Abernathy v. Dennis Absor V. French , 833, 481, Academy of Music v. Weldon Acker v. New Castle Ackroyd v. Smith 2, 13, 28, 39, Acquackanonk Water Co. v. Wat- son 737, Acton V. Blundell 781, Adam v. Briggs Iron Co. Adams v. Andrews V. Barney V. Chicago, B. & N. R. Co. 488, 489, 515, 517, 518, Y. Conover 130, Y. Durham & N. R. Co. V. Emerson 391, 478, Y. Harrison Y. Hastings & Dak. R. Co. V. Iron Cliffs Co. V. Manning Y. Marshall 306, V. Patrick Y. Pease 60, V. Saratoga Y. Van Alstyne V. Walker 759, 766, Addison Y. Hack ^tna Mills y. Brookline 782, V. Waltham Agawam Canal Co. y. Edwards Ague Y. Seitsinger 121, Akron y. Chamberlain Co. Alabama & V. R. Co. y. Bloom 515, Albee y. Huntlv 5; Brice v. Randall 298, 303, 3'J9 Bridger v. Pierson li 1 Bridges v. Purcell 63, (i.i V. WyckofiE 430, 454 Briel v. Natchez 454 Briggs V. Klosse 606, 717, 730, 731 V. Lewiston & Auburn H. R. Co. 499, 503 Brigham v Smith 398, 303, 305, 306 Bright V. Dunn 284 V. Walker 158, 159, 166, 167, 835 Brightman v. Chapin 159, 360 V. Fairhaven 544 v. Hicks 84 Brill V. Brill 407, 409, 412, 823 Brinck v. Collier 425, 437, 438 Brisbine v. St. Paul & Sioux City R. Co. 518 Briscoe v. Drought 729 Broadbent v. Eamsbotham 726, 731, 759, 783, 786 Brockhausen v. Bochland 535, 538. 541 Brondage v. Warner 641, 712, 822, 840 Bronson v. Coffin 175, 555, 669, 823, 863 v. Curtis 106 Brook V. Horton 540 Brooke v. Connery 405 TABLE OF CASES. References are to Sections. Biookline v. Mackintosh 785, 794 Brooklyn v. Smith 447 Brooklyn & North Thirteenth St., Matter of 430 Brooklyn Cent. & J. R. Co. v. Brooklyn City R. Co. 499 Brooklyn Oitv R. Co. v. Coney Isl. R. Co. " 515 Brooklyn Park Com'rs v. Arm- strong 540 Brooklyn Street, Opening of in re 433 Brooks V. Cedar Brook R. I. Co. 881 V. Curtis 646, 649, C51, 661, 687, 696, 697, 719, 720 V. Reynolds 113, 898, 553, 557, 566, 577 V. Riding 539 V. Topeka 444 Broome v. New York & N. J. Tel. Co. 494 Brossart v. Corlett 369 Broussard v. Sabine & E. T. R. Co. 773 Brown v. Alabaster 137, 129, 136, 143, 154, 254, 263, 365, 338 V. Bank 90 V. Berry 147, 231, 298, 336, 837 V. Bowen 737,738, 873 V. Burkenmeyer 398 V. Carthage 447, 531 V. Duplessis 499 V. Hines 457 V. lUius 783 V. McKee 647, 668 V. Maiming 432, 433 V. Pentz 653, 683 V. Robins 588, 620 V. Stark 430 V. Stein 435, 427 V. Stone 817 V. Thissell 22, 48, 93 V. Volkening 511 V. Werner 633, 645, 653, 654, 713, 721 V. Winona & S. W. R. Co. 768 Brownell v. Palmer 458, 539, 533 Bruce v. Saline County 535 Bruening v. Dorr 728 Brumfield v. Carson 80 Bruning v. New Orleans Canal Co. 22, 682 Brunton v. Hall 355 Brushy Mound v. McClintock 489, 461, 470 Bryan v. Whistler 69 V. East St. Louis 294, 465 Bryant v. Lefever 567, 576, 577 V. McCandless 422, 447 Buchanan v. Curtis 435, 450, 457 V. Duluth 776 XX Buchanan v. Logansport 78 Buckley v. Coles 298 Budd V. Collins 180 Buddington v. Bradley 794 Buffalo V. Del. L. & W. R. Co. 430, 437, 473, 535 V. Harling 444 Buffum V. Harris 759, 781 Buhl T. Fort Street U. D. Co. 518, 550 Bulcholz V. New York, L. E. & W. R. Co. 518 Bull, In re 887 Bullard v. Harrison 303, 314, 333, 348, 482, 484 V. Saratoga Manuf . Co. 749, 751 BuUen v. Runnels 741 Bump V. Sanner 369 Bumpus V. Miller 457 Bunderson v. Burlington & M. R. Co. 773 Burback v. Schweinler 552 Burbank v. Fay 531 Burden v. Stein 877 Burgner v. Humphrey 597 Burkam v. Ohio & M. R. Co. 515 Burke v. Missouri Pac. R. Co. 759 V. Smith 579, 582 Burlington v. B. & M. R. Co. 529 Burlington & C. R. Co. v. Schwei- kart 80 Burlington & M. R. Co. v. Rein- hackle 515, 521, 548 Burlock V. Peck 683 Burnham v. Kempton 165, 794, 801 V. McQueston 382, 285 V. NcTins 891, 394, 395, 397, 398, 399, 566 Burns v. Gallagher 136, 142 Burr V. Lamaster 661, 681, 683 T. Leicester 593 V. Mills 21, ff3, 102, 136, 154 Burris v. People & Ditch Co. 837 Burroughs \'. Satei-lee 786 Burton v. Martz 446 V. Moffitt 642, 651, 652, 885 Burwell v. Hobson 140, 729, 734, 881 Busby V. Holthaus 585, 604, 615 Buschmann v. St. Louis 227, 430, 432, 434, 440, 450 Bush V. Johnston 457 V. Portland 776 V. Sullivan 78 V. Westei-n 883 Bushey v. SantifE 160, 1C4, 269, 379, 294 Bushnell v. Scott 425, 444 Buskirk v. Strickland 585^ 595 Buss V. Dyer 143, 154, 298, 305 Buszard v. Capel 14 Butler V. Hunter 6 19 TABLE OF CASES. References are to Sections. Butler V. Peck 763, 764, 766 Butman v. Hussey, 743 Butt V. Imperial Gas Co. 584 V. Napier 159 Butterfleld v. Reed 863, 868, 869 Butterworth v. Bartlett 542, 549 V. Crawford 131, 134, 147, 148, 150 Butz V. Ihrie 863, 867 Byrne v. Minneapolis & St. L. R. Co. 739, 734 V. Farmington 759, 776 Byrnes v. Cohoes 764, 775 Cabot V. Kingman 593, 594, 603, 619 Cadigan v. Brown 889 Cadwalader v. Bailey 3, 33, 38, 39, 41, 47, 53 Cady V. Springfield "Water Works Co. 5 V. Springville Water Works Co. 5, 22, 787 Cagle V. Parker 80 Cahill V. Layton 435 Cairo & V. R. Co. v. Stevens 732, 759, 764, 769 Cairo, V. & C. R. Co. v. Brevoort 729, 732 734 Caldwell v. Copeland is! 161 V. Fulton 15, 57 Caledonian Railway Co. v. Sprot 586, 601, 605 V. Walker 485 California v. Howard 430 California Acad, of Science v. San Francisco 443 Callaway County V. NoUey 531,533 Callender v. Marsh 595 Callison v. Hedrick 478 Calmelet v. Sichl 701, 703 Camp V. Whitman 324 Campau v. Detroit 457, 459, 477 Campbell v. Indianapolis & V. R. Co. 71, 78 V. Kansas City 424 V. Kuhlmann 379 V. Mesier 644, 707 V. Met. Street R. Co. 499 V. Race 483, 483 Y. Seaman 883 V. Smith 737 V. West 164 V. Wilson 163 Campbell County v. Newport 487 Campton's Petition 457 Canal Company v. Hill 790 Canal Trustees v. Havens 447, 553 Canedy v. Marcy 101 Canfleid v. Andrews 746, 754, 755 Cannon v. Boyd 141, 147, 157, 365 Cannon v. Villars 385, 387 Canny v. Andrews 843, 845, 847, 853, 863, 870 Capers v. M'Kee 348, 819 V. Wilson 337, 337 Capron v. Greenway 835 Carbrey v. Willis 136, 128, 129, 136, 142, 154, 165, 170, 306 Carey v. Rae 303, 310, 315, 318, 334, 481, 483 Cargar v. Fee 160, 383 Carl V. Sheboygan & F. Du. L. R. Co. 515 Carleton v. Redington 69 Carleton MiUs Co. v. Silver 791 Carli V, Stillwater Street R. Co. 515 V. Union Depot St. R. & Tr. Co. 531 Carlin v. Chappel 585, 597, 600 V. Paul 855 Carhsle v. Cooper 160, 187, 800 Carlton v. Blake 649, 696 Carmody v, Mulrooney 160, 164, 185, 186, 373, 376 Carnahau v. Brown 15 Carothers v. Philadelphia Co. 359 Carpenter v. Gold 749, 890 V. Gwynn 433 V. Mann 543, 546 V. Oswego & S. R. Co. 515, 516 Carpenteria School Dist. v. Heath 447, 450 Carr v. Foster 189, 863 Carrig v. Dee 573 Carriger v. East Tenn. V. & G. R. Co. 738, 729, 734, 762, 774 Carson v. Central R. Co. 499, 531 Carter & Clark 478 V. Harlan 63, 69, 73 V. La Grange 539 v. Murcot 60 V. Portland 331, 343, 433, 430, 436 V. Thurston 764 Cartwright v. Maplesden 870 Gary v. Daniels 737, 743, 799, 836, 828 Case V. Favier 441, 443 V. Haight 93 V. Hoffman 738, 739 V. Minot 139, 570 easier v. Shipman 790, 863 Cass V. Dicks 759 Cass County v. Banks 449, 454 Casselberry v. Ames 606 Cassidy v. Old Colony R. Co. 759, 764, 773 Castalia Trout Club Co. v. Castalia Sporting Cluli 751, 786 Castle V. Berkshire County 550 Castner v. Riegel 160, 175 xxi TABLE OF CASES. References are to Sections. Catlin V. Valentine 755 Cauble v. Hultz 777 Cave V. Crafts 129, 154 Cayuga R. Co. v. Niles 80 Cecconi v. Rodden 661 Cedar Lake Hotel Co. v. Cedar Creek Hydraulic Co. 810 Central Branch U. P. R. Co. v. Andrews 515, 526, 548 V. Twine 524, 548 Central Wharf v. India Wharf 843 Cerf v.Pfleging 432 Chadeayne v. Robinson 759, 776 Chadwick v. Trower 610, 613 Chagrin Falls & C. PI. Road Co. v. Cave 478 Chalker v. Dickinson 60, 61 Challis V. Atchison Union Depot R. Co, 552 Chamber Colliery Co. v. Hopwood 166, 183 Chamberlain v. Ahrens 533 V. Baltimore & O. R. Co. 784 V. Elizabethport Steam Cord- age Co. 515 V. Hemingway 727, 736 Champion V. Crandon 778 V. Munday 86 Champlin v. Morgan 538 Chandler v. Goodridge 310 Chandler v. Jamaica Pond Aque- duct Co, 352, 828, 830, 863, 866, 867, 868 V. Thompson 578 Chapel V. Smith 160, 187, 764 Chapin v. Brown 231, 247 Chapman v. Copeland 754 V. Gray 836 ChappeU v. New York, N. H. & H. R. Co. 93, 94, 95, 215 Charles Countv v. PoweU 533 Charless v. Rankin 585, 604, 612, 613, 614, 630, 621 Charlotte v. Penbrooke Iron Works 531, 534 Chase v. Hall 298 V. Oshkosh 479 V. Perry 295, 329, 337 V. Silverstone 783 V. Walker 555 Chasemore v. Richards 567, 781, 783, 785, 805 Chastey v. Ackland 574, 576, 885 Chatfleld v. Wilson 744, 759, 780, 781, 782, 783, 805 Chatham v. Brainerd 210 Chauvet v. Hill 728 Cheek v. Aurora 531 Cheetham v. Muhlenberg 209 Cheever v. Pearson 179 xxii Cheever v. Shedd 595, 596 Chelsea Dye House & L. Co. v. Commonwealth 594 Cheney v. O'Brien 295, 299 Cherry v. Stein 561, 573, 881 Chesapeake & O. R. Co. v. Kobs 519 Chesapeake & P. Tel. Co. v. Mac- kenzie 494, 496 Chesley v. King 783, 783 Chester v. Chapman 310 Chestnut Hill Turnpike Co. v. Piper 469 Cheswell v. Chapman 337, 343 Chetham v. Williamson 15, 57 Chew V. Cook 841, 855 Chicago V. Chicago R. I. & P. R. Co. 160, 269, 425, 426, 449, 457, 460, 477 V. Drexel 430, 446, 449, 454 V. Hill 437 V. McDonough 515 V. Rumsey 447 V. Sawyer 546 V. Stinson 425, 439 V. Taylor 593 V. Wright 434 Chicago & Alton R. Co. v. Maher 526 V. Willi 774 Chicago & N. W. R. Co. v. Elgin 529 V. Hoag 164, 194 Cihcago & W. I. R. Co. v. Ay res 515 593 Chicago, B. & Q. R. Co. v. Mc- Ginnis 515 V. Quincy 523 Chicago, Kan. & N. R. Co. v. Hazels ,528 V. Steck 759, 77a Chicago, Kan. & W. R. Co. v. Mor- row 727 V. Willits 621 V. Union Inv. Co. 523, 537 V. Woodward 515 Chicago, N. & S. W. R. Co. v. Mayor 521 Chicago, R. I. & P. R. Co. v. Joliet 447,521, 52» Chicago, Santa Fe & Cal. R. Co. v. Ward 23 Chichester v. Lethbridge 54(> Child V. ChappeU 227, 241 Childs V. Napheys 639 V. Nelson 531, 587 Choate V. Burnham 389, 390 Chollar v. Potosi M. Co. v. Ken- nedy 160, 164 Christ Church v. Lavezzolo 557, 573 V. Mack 553, 858 Christian Moerlein Brewing Co. v. Fasse 119 TABLE OF CASES. References are to Sections. Church V. Meeker 56 V. Portland 444, 487 Churchill v. Burlington Water Co. 8, 160, 268, 569 V. Lauer 727 Cihakv. Klehr 141, 154, 157, 231, 334, 356, 880, 886 Cincinnati v. Evans 533 V. First Presby. Church 529 V. Penny 493, 593, 604 V. White 335, 433, 433, 434, 443, 444, 487, 543, 549 Cincinnati & S. G. Av. St. R. Co. V. Cumminsville 499, 515, 531, 548 Cincinnati H. & D. R. Co. v. Ahr 774 Cincinnati I. St. L. & C. E. Co. v. Geisel 311 Citizens' Coach Co. v. Camden H. R. Co. 499, 515, 516, 884 City of Yonkers, Matter of 493 Claflin V. Boston & Albany R. Co. 89, 90. 91, 159, 313, 315, 367 V. Carpenter 69 Clap V. M'Neil 237 Clapp V. Herriok 746 Clark V. Cogge 398, 306 V. Conroe 783 V. Debaugh 140 V. Devoe 117 V. Elizabeth 337, 430 V. Glidden 64, 78, 79 V. Hannibal & St. J. R. Co. 773 V. Henckel 377 V. Martin 109 V. Paquetto 269, 270, 283, 394 V. Parker 226 T. PennsvlvaniaR. Co. 737, 746, 749, 751, 754 V. Saybrook 546 V. Way 57 Clarke v. Clark 885 Clauser v. Jones 78 Claverings's Case 85 Clawson v. Primrose 160, 573, 885 Clayton v. Corby 166 Cleland's Appeal 77 Clelland's Appeal 77, 121, 319 Clemens v. Speed 585, 604. 606, 607, 610, 613, 614 Clement v. Durgin 69 V. Gould 791 Clements v. Anderson 581, 533 Cleris v. Tieman 254, 265, 561 Cleveland v. Ware 165 Cliflford V. Hoare 13, 866, 391 Clinton v. Myers 787, 746, 783 V. Railroad Co. 499 Close V. Saram 164 Clowes V. Staffordshire Potteries W. W. Co. 754, 756, 882 Cobb V. Davenport 54, 58 Coberly v. Butler 288 Coburn v. Coxeter 310 v. Middlesex Co. 791 V. San Mateo County 455, 460, 470 Cocker v. Cowper 80, 83, 84 Codling V. Johnson 30 Coe V. Wiunepisiogee 879 V. WolcottvilleManuf. Co. 160 Coffin V. Talman 674 Coffman v. Robbins 737 Cohen v. Simmons 587, 723 Cohoes V. Delavsrare & H. C. Co. 449, 454, 457 Coit V. Lewiston E. Co. 737 Colburn v. Marsh 23, 186, 269, 297 V. Richards 753 Colchester v. Roberts 390, 360 Coldvs?ell V. Sanderson 751 Cole -v. Bradbury 32, 23, 24, 160, 197, 799 V. Drew 875 V. Hadley 204, 237, 329, 337 V. Hughes 653, 668, 673, 674, 675, 676, 679 V. Irvine 841 Coles V. Sims 106, 118 Colebeck v. Girdlers' Co. 814, 832 Coleman's Appeal 298 Coleman v. Chadwick 597, 783, 784 V. Flint & P. M. E. Co. 457, 539 V. Kansas City, St. J. & C. B. E. Co. 774 V. Thurmond 529 CoUam V Hocker 205 Collett V. Vanderburgh County 531 Collier v. Pierce 557, 559 Collins V. Chartiers Valley Gas Co. 757, 766 V. Keokuk 764 V. Patterson 438 -V. Prentice 234, 298, 303, 304, 306, 314, 315, 334 V. St. Peters 846, 875 V. Waltham 778 Collins Co. V. Marcy 69 Collis V. Laugher 574 Colorado Cent. R. Co. v. Mollandin 521 Colrick V. Swinburne 737, 786 Colt V. Redfield 341, 343, 390 Columbus & I. Coal & S. Co. v. Tucker 756 Columbus & W. R. Co. v. Withe- row 515 Columbus Gas Light Co. v. Free- land 751, 757 Columbus H. & G. E. Co. v. Braden 73 Columbus, H. V. & T. R. Co. v. Gardner 528 xxiii TABLE OF CASES. References are to Sections. Colvin V. Burnet 164, 180, Commonwealth v. Alburger V. Allen V. Barker V. Bea\^er Borough Y. Belding V. Blalsdell V. Chapin V. Cole V. Coupe V. Holliston T. Kelly V. Low V. McNaugher V. Matthews V. Moorhead V. Newbury V. Railroad Co. 457, 440, 450, 457, 440, 453, 534, V. Royce V. Rush V. Taunton V. Upton V. West Chester V. Wilkinson Compton V. Richards Comstock V. Johnson V. Sharp V. Van Deusen Conan v. Kemire Conboy v. Dickinson 531, 537, 433 425, 487, 453, 440 178, 185 583 515 438 430 457 534 60 458 462 463 449 457 537 462 539 457 451, 457 480 430 462 534 503 421 555 791 388 351 30 604, 617 493 21, 231, 355, 347, 587, 538, 611, Cone V. Hartford Coney Island & B. R. Co. v. Brook- lyn C. Co. 68 Conklin v. Boyd 800, 805 Connehan v. Ford 449 Conner v. WoodfiU 164, 180, 268, 771. 806 Connery v. Brooke 405, 407, 411 Connor v. Sullivan 193 Constable v. Nicholson 54 Conyers v. Scott 186, 269, 283, 286, 472 Cook V. Chicago, M. & St. P. R. Co. 515 V. Chicago, B, & Q. R. Co. 1, 63, 65, 131 V. FaiTington V. Gammon V. Harris V. Hillsdale V. Hull V. Mayor V. Pridgeon V. Quick V. Stearns 101 270 437, 440, 449, 456 433 752 868 78 549 63, 64, 69, 80 V. Wardens of St. Paul's Church V. Whiting xxiv 841 21 & L. Co. Cook County v. Chicago, B. & Q R. Co. Cooke V. Ingram Cool V. Peters Box Coolidge V. Hager V. Learned Cooper V. Barber V. Carlisle V. Crabtree V. Detroit T. Louanstein V. Maupin V. Smith Corbitt V. Porter Corcoran v. Benicia V. Nailor Corey v. Wrentham Corliss V. Dunning Cornell v. Bickley Corning v. Gould V. Head Lowerre 105 350 75 23, 645 160, 161, 163, 269 803 85, 800 873 540 93 398, 803, 314, 315, 317, 318 160, 164, 849 633 776 687, 691 449 337, 848, 820 686 160, 585, 852, 855, 861, 863, 863 457 546 754, 879 774 V. Troy I. & N. Factory Cornish v. Chicago, B. & Q. R. Co. Cornwall v. Louisville & N. R. Co. 529 Corn well v. Thurston 101 Cornwell Manuf. Co. v. Swift 800 Cortelyou v. Van Brundt 161 Cosby V. Owensville & R. R. Co. 542 Costa V. Whitehead 637 Costello V. Harris 803 Coster V. Albany 550 V, New York 540 Cotcbing V. Bassett 85 Cotton V. Pocasset Manuf. Co. 33, 201, 801 93, 106 574 563 790 23, 160, 182, 197, 283, 787 785 785 585, 604, 610, Coudert v. Sayre Courtauld v. Legh Coutts V. Gorham Covel V. Hart Coventon v. Seufert Covert V. Brooklyn V. Crawford Covington v. Geyler 612, 613, 617, 717, 719 V. McDonald 432 Cowdrey v. Woburn 785 Co%vell V. Thayer 300, 791, 801, 803 Cowlam V. Slack 53 Cowles V. Kidder 68, 79, 787. 741, 746 Cowling V. Higginson 393, 385, 400 Cox V. Forrest 160, 186, 269, 273, 289 V. Fi-eedley 552 V. James 26, 237, 331 V. Leviston 123 TABLE OF CASES. References are to Sections. Cox V. Louisville, N. A. & C. R. Co. Crabtree v. Baker 763, Craig V. People V. Rochester City & B. R. Co. Crain v. Fox 841, 845, 847, 853, 863, 863, Crandall v. Woods Crane v. Winsor Crapo V. Cameron Craven v. Rose Crawford v. Delaware 531, 548, V. Ram Co. 738, Crawfordsville v. Bond Crawshaw v. Sumner Creely v. Bay State Brickies Creighton v. Evans Crippen v. Morss 81, 334, Crismon v. Deck Crittenton v. Alger Crocket v. Boston 454, Cromwell v. Selden Cronkhite v. Cronkhite 63, 69, 76, 83, Crooke v. Flatbush "Water Works Co. Crooker v. Bragg Crosby v. Montgomery Crosdale v. Lanigan 6£ Crosland v. Rogers 138, 129, 141, 156, 157 164, Cross V. Kitts V. Lewis V. Morristown V. Pike V. St. Louis, K. City & N. R. Co. Crossley v. Lightowler 127, 136, 756, 794, 841, 868 877, Crounse v. Wemple Crow v. Wolbert Crumble v. Wallsend Local Board Crump V. Lambert Cubitt V. Maxse V. Porter 644, 653, Cumberland v. Willison Cumberland T. & T. Co. v. United Eleo. R. Co. Cumberland Valley R. Co. v. Mc- Lanahan 77, Cummins v. Seymour Cunningham v. Dorsey V. Fitzgerald 337, 381, 341, V. Hendricks V. San Saba Co. Curran v. Louisville 586, 537, 854, 864, 865, Currier v. Gale 515 764 431 499 854, 870 160 758 646 855 593 739 775 715 889 875 314 479 799 456 791 80, 179 492 737 101 ), 70 154, 166 22 578 531 13 534 143, 871 179 337 623 569 449 711 767 503 383 543 573 353 425 470 863, 869 199 Currier v. Howes 30, 365, 369 Curriers' Co. v. Corbett 836, 890 Curtis V. Angler 373 V. Eastern R. Co. 764, 774 V. Gardner 91, 315 V. Keesler 269, 457, 863 V. La Grande Hydraulic Water Co. 64,78,164,179 V. Noonan 847, 870 Curtiss V. Ayrault 126, 139, 130, 7^1, 759 V. White 6)4 Cutler V. Smith (i6 Cutter V. Cambridge 539, 534 V. Wilhams 655, 683, 723 Cutting V. Stokes 651, 687, 689 Curvin v. Rochester R. Co. 859 Gyr V. Dufour 476 V. Madore 469 Daily v. State 479, 495 Daltonv. Angus 161, 163, 165, 553, 586, 589, 601, 604, 605, 606, 619 Daly V. Georgia, S. & F. R. Co. 515 Damour v. Lyons City 776 Dana v. Valentine 178, 189, 878, 884 Dand V. Kingscote Danforth v. Bangor V. Durell Daniels v. Almy V. People Dann v. Spurrier Dannaker v. Riley Dantzer v. Indianapolis Union R. Co. 518, 547 Danville & W. R. Co. v. Comm^on- wealth 506 Dare v. Heathcote 293 Dark v. Johnston 3, 68, 77 Darker v. Beck 346 Darley Maia Colliery Co. v. Mitchell 591, 628 Darlington v. Painter 826 Darwin v. Upton 573 Dauenhauer v. Devine 651, 687, 691, 696, 724 Davenport v. Lamson 32, 86, 355, 360 Davids v. Harris 639, 666, 673, 674 Davidson v. Nicholson 22, 80, 198 V. Sanders 770 Da vies v. Huebner 539, 580, 535, 536 374, 375, 377, 815 480 434 434, 425 457 85 639 Sear V. Williams Davis V. Brigham 265, 806, 826 891 164 Cleveland C. C.& St. L.R. Co. 160, 269 V. Clinton 464 V. Crawfordsville 764, 775 V. Fuller 737, 743 V. Gale 863 XXV TABLE OF CASES. References are to Sections. Davis V. Getctiell 737 V. Hampshire County Com'rs 550 V. Judge 430 V. Lambertson 889 T. Londgreen 759, 764, 766, 767, 878, 881, 884 V. Ramsey 449 V. Spaulding 782, 784 V. Treharne 589, 591, 597, 599 V. Wlnslow 746 Davison v. Hutchinson 759 Dawes v. Hawkins 439, 531 Dawson v. Kemper 687, 693 V. St. Paul, F. &M. Ins. Co. 30, 327, 333, 337, 543 Day V. AUender 370, 374, 457 V. Caton 647, 648 V. New York Cent. R. Co. 80, 112 V. Philbrook 209 V. Sciiroeder 553 V. Walden 841, 863, 865 Dayton v. Rutherford 764 Dean v. Ann Arbor St. R. Co. 494, 503 Decker v. Evansville Sub. & N. Ry. Co. 244, 547 Decorah Woolen Mill Co. v. Greer 2.5 Deere v. Weis-Shugart Co. 664 Deerfield v. Connecticut Riv. R. Co. 165, 380, 468 De Gilleau v. Frawley 435 De Haro v. United States 63, 73 Deigleman v. New York, L. E. & W. R. Co. 764 Delaney v. Boston 808 Delaware & H. Canal Co. v. Torrey 751 Delaware & Md. R. Co. v. Stump 60, 61 Delhi V. Youmans 782, 805 Delphi V. Evans 593, 595 De Luze v. Bradbury 121 Demapolis v. Webb 430 Demartini v. San Fi'ancisco 441 Dempsey v. Kipp 28, 73 Dempster v. Cleghorn 303 Demuth v. Amweg 180, 193 Denken v. Canavan 618 Dennis v. Wilson 18, 19, 34, 36, 44, 47, 48, 90, 93, 95, 315, 362 Dent V. Auction Mart Co. 569,575, 88.1, 889 Denton v. Leddell 141, 143, 147, 150 164, 835 Denver v. Bayer 515 V. Clements 433, 425, 436, 435 V. Denver & S. F. R. Co. 449. 454 Denver & R. G, R. Co. v. Bourne 515 Denver & S. F. R. Co. v. Domke 515 xxvi Depriest v. Jones 449, 531 Derby v. Ailing 430, 456, 537 Deringer v. Augusta Hotel Co. 639 Deshon v. Porter 790, 791 Desloge v. Pearce 69 Des Moines v. Hall 449 Detroit v. Detroit & M. R. Co. 435, 446, 451, 457 Detroit City Railway v. Mills 490, 499, 503, 504 Deraux v. Detroit 535 Devenpeck v. Lambert 457, 458, 459, 460 Devoe v. Smeltzer 453 Dewey v. Bellows 836 V. Williams 791 DeWitt V. Harvey 791 V. Ithaca 281, 237, 343, 243 Dexter v. Beard HO, 889 V. Tree 164, 366. 269, 270, 282, 477, 565, 566, 573 Diamond Match Co. v. Ontonagon 454 Dicken v. Liverpool Salt & Coal Co. 435, 437, 449 Dickerson v. Detroit 464 Dickinson v. Whiting 404 V. Grand Junction Canal Co. 735, 7^7, 781, 785, 786, 838 V. Worcester 759, 764, 778, 805 Dickson v. Kewanee Elec. L. & M. Co. 487, 498 Diedrich v. Northwestern R. Co. 430 Dill V. Camden Board of Education 331.337. 241, 488, 565, 863, 866, 889 Dillman v. Hoffman 141, 154, 157, 363, 306, 312, 650, 855, 861 Dillon V. Acme Oil Co. 757 V. Hunt 721 Directors v. Goerges 533 Dixon V. Baker 762 V. White 589, 597 V. Wilkinson 613 Doane v. Badger 814, 817, 821, 822, 823. 831 Dodd V. Burchell 152, 315, 318, 331 V. Holme 606, 610, 613, 623 Dodge V. County Commissioners 596 V. McClintock 69 V. Marden 866, 870 V. Pennsylvania R. Co. 227. 341, 543 V. Stacy 278, 449, 464, 855 Doe V. Butler 863 V. Pearsey 479 V. Wood 15, 57, 64, 74 Doerbaum v. Fischer 759, 769 Dolan V. Trelevan 101 DolliflE V. Boston & M. R. Co. 184, 136, 150 TABLE OF CASES References are to Sections. Donnell v. Humphreys 18, 20, 33 Dooly Block v. Salt Lake Rap. T. Co. 515, 521 Dority v. Dunning 32, 23, 27, 799, 835, 836 Dorman v. Bates Manuf. Co. 331, 237, 331, 337, 243. 449 Dorrity v. Eapp 587, 604, 613, 616, 619, 620, 730 Dorsey v. Habersack 653, 654, 698, 701 V. St. Louis, A. & T. H. R. Co. 668 Douglas V. Coonley 839 Douglass V. Road Co. 478 Dovaston v. Payne 420, 423 Dow V. Edes 791 Dowglass V. Kendal 50 Dowlings V. Hennings 645 Downer v. St. Paul & Cliicago R. Co. 446 Doyle V. Lord 557, 570 V. Ritter 619 V. Wade 187, 199 Drake v. Hudson Riv. R. Co. 521, 565 V. Lady Ensley Coal & I. Co. 756 V. Wells 73 Drda v. Schmidt 334, 370, 373 Drew V. Hicks 763, 764 Drewett v. Sheard 867 Driggs V. Phillips 531, 539 Druoker v. Manhattan R. Co. 488. 506, 538 Druley v. Adam 737, 737 Drury v. Kent 49 Dubach v. Hannibal & St. Jo. R. Co. 534 Dubois Cemetery Co. v. Griffin 435, 453 Dubuque v. Maloney 1, 331, 430, 455 478, 479 Dudden v. Guardians of Clutton Union 738, 786 Dudley v. Frankfort 539, 533 Duffy V. Norwood 457 Duinneen v. Rich 63, 69 Duke of Devonshire v. Bglin 85 Dumont v. Kellogg 737, 741 Duncan v. Hanbest 639 V. Louoh 814, 821 V. Eodecker 650, 710, 840, 853 Duncomb's Case 481 Dunham v. Joyce 787, 799 V. New Britain 887 V. Pitkin 337 V. WiUiams 552 Dunklee v. Wilton R. Co. 141, 164, 314 Dunton v. Niles 587 Durel V. Boisblanc 680 Durfee v. Garvey 814, 833 Durham & Sunderland Ry. Co. v. Walker 89, 91, 363 Dusenbury v. Mut. Tel. Co. 494 Duval V. Becker 835, 857 Dwenger v. Chicago & Grand Tr. R. Co. 244 Dwight V, Hayes 755 Dwight Printing Co. v. Boston 755 Dwinel v. Barnard 531 Dyce V. Hay 303 Dyer v. St. Paul 593 V. Sanford 94, 845, 846, 847, 851, 853, 853, 869, 870 Dygert v. Schenck 533 Dynevor v. Tennant 835 Eadon v. Jeff cock 597 Eads V. Gains 585, G04, 613, 613 Eames v. Worcester & N. R. Co. 313 Earl V. Beadleston 731 V. De Hart 727, 730, 731, 759, 805 Earl De La Warr v. Miles 188 Earley's Appeal 886 Earll V. Chicago 430, 444, 446 East End St. R. Co. v. Doyle 502 East India Company v. Vincent 85 East Jersey Iron Co. v. Wright 64, 65, 69. 73 East St. Louis v. O'Flynn 546, 550 East St. Louis & C R. Co. v. Eisentraut 774 East Tenn. V. & G. R. Co. v. Tel- ford 394 Eastern Cemetery Co. v. Louisville 433 Eastband v. Fogo 449 Eastman v. Amoskeag Manuf . Co. 164 Easton v. Richmond Highway Board 480 V. Rinek 425 Easton Borough v. Rinek 227, 432 Eaton V. Evans 806 V. Swansea Water Works 193, 195 Eau Claire v. Matzke 889 Eberly v. Behrend 680 Ebner v. Stichter 77, 855 Eckerson v. Crippen 73, 76, 160, 180, 181, 284 Eckhart v. Irons 333, 243, 425 Eckleman v. MUler 643 Eddy V. Chace 863, 869 Edgerton v. McMullan 863, 865 Edgett V. Douglass 814 Edson V. Munsell 198, 199, 460 Edwards v. Charlotte, C. & A. R. Co 759 Ed wards ville v. Barnsback 444 xxvii TABLE OF CASES. References are to Sections. Eels V. American T. &T. Co. 494 Egerer v. N. Y. 0. & H. River R. Co. 548 Eggleston v. New York & H. R. Co. 69, 71, 73 Ehmen v. Gothenburg 447 Ehret v. Gunn 30, 323 Eiclielsv. Evansville Street R. Co. 499 Elder v. Lykens 756 Electric Constr. Co. v. HeflEernan 498 Elevated R. Co., In re 488 Eleventh Avenue, In re 237, 331, 242 Elfelt V. Stm-water St. R. Co. 499 Elgin V. Eaton 593, 595 V. Kimball 775 Eliason v. Grove 799 Elizabethtown, L. & B. S. R. Co. V. Combs 489, 531, 538, 543 Elizabethtown & P. R. Co. v. Thompson 533 ElHot v. Fitchburg R. Co. 737, 750, 751, 753, 754, 879 V. North Eastern Ry. 591, 602, 631 V. Shepherd 790 Elliott V. Fair Haven & W. R. Co. 499, 515 V. Rhett 141, 143, 154, 156, 254, 836, 863 V. Sallee 129 Ellis V. American Academy of Music 381, 400 V. Bassett 133,140, 398, 309, 314 V. Clemens 737, 751 V. Duncan 781 V. Tone 745 EUiston V. Morrison 666 Ellsworth V. Chickasaw County 546, 549 V. Grand Rapids 434, 457, 459 V. Southern Minn. R. Co. 78 Elmhirst v. Spencer Elson V. Comstock Elster V. Springfield Emans v. Turnball Embrey v. Owen Emerson v. Fisk v. Mooney V. Wiley Emery v. Lowell V. Raleigh&G. R. Co. 885 444, 447 180, 805 56 737 68 90 237, 536 776, 778 183, 774, 867 886 785 726 Emperor of Austria v. Day Emporia v. Soden Ennor v. Barwell Eno V. Del Vecohio 158, 645, 649, 653, 682,' 696, 705, 711,717,720 Enos V. Chicago, St. P. & K. R. Co. 515 xxviii Enos V. Hamilton 543 Erb V. Brown 846, 863 Erickson v. Mich. L. &T. Co. 597 Ermentrout v. Stizel 848, 853 Krving v. Phelps & B. Wind Mill Co. 515 Erwin v. Central Union Tel. Co. 494 Eslingv. Williams 162, 164, 165, 186, 371, 794 Espleyv. Wilkes 337,231,337,241,298 Essex ville V. Emery 529 Estes V, Long 180 Eufalia v. Simmons 775, 776 Eulrich v. Richter 727, 728, 759 Eureka v. Armstrong 430, 432 V. Croghan 430, 454 V. Fay 425 Evangelical Luth. St. J. & O. Home V. Buffalo H. Asso. 88, 826 Evans v. Blankenship 425, 427. 430, 455 V. Chicago, St. P., M. & O. R Co. 515, 546, 547 V. Dana 29, 143, 147, 154, 159, 164 V.Erie County 531,533 V. Gulf, C. & S. F. Ry. Co. 86 V. Merriweather 737, 741, 747 V. Savannah & W. R. Co. 430 Evansville v. Decker 764, 775, 776, 778 v. Evans 430, 443 Everett v. Dockery 787 v. Edwards 633, 649, 696, 697 V. Marquette 519 Ewart V. Cochrane 150 157 814 V. Graham 58 Ewell V. Greenwood 515 Ewert V. Burtis 321 Fairfield v. Morey 429 455 V. Williams 553 Fall River Iron Works Co . V. Old Colony & Fall River R. Co. 544 Fankboner v. Corder 120, 160, 198, 269, 276 407 415 Fanning v. Osborne 515 Farnsworth v. Taylor 227, 237, 365 Farnum v. Piatt 15, 333 Farrand v. Chicago & N . W . R. Co. 515 V. Marshall 585, 604 620 625 629 Farrar v. Cooper 869 Farrell v. Richards 752 Farrington v. Bundy 367 Farris v. Dudley 762 881 Fassion v. Landrey 425 547 Faulkner v. Duff 853 Fearing v. Irwin 540, 550 TABLE OF OASES. Fellowes v. New Haven Felton V. Simpson Fentiman v. Smith Ferguson's Appeal Ferguson v. Fallons V. Spencer V. Witsell 129, 154, 156, 837 Ferrell v. Ferrell 80, 159, 160, 164, 304 Ferrenbach v. Turner, 546, 549 Ferris v. Brown 161 Fetters v. Humphreys 141, 143, 147, 154, 157, 164, 254, 265 Fettretch v. Leamy 633, 651, 653, 688, 694 Fidelity Lodge v. Bond 633, 697 Field V. Barling 565 V. Brown 164, 194 V. Chicago, R. I. & P. R. Co. 773 V. Leiter 633, 687, 703 V. Manchester 449, 454, 455, 456 V. Mark 327, 815, 318, 432, 437, 438 V. West Orange 759, 764, 775, 776 Fields V. Colby 430 Fifth Nat. Bank v. New York El. R. Co. 531, 565 Fifty Associates v. Tudor 573 Finch V. Great Western R. Co. 360. 377 V. Resbridger 883 V. Riverside & A. R. Co. 499, 500 Finley v. Stuebing 647 First Nat. Bank v. ViUegia 587, 610, 616 First Parish in Gloucester v. Beach 376 Fischer v. Laack 317, 425 Fisher v. Beard 334, 235, 425, 440 V. Fair 33, 35, 39, 46 V. Farley 268 V. Harrisburgh 493 V. Smith 98 Fisk V. Haber 354 V. Havana 435, 436 Fiske v. Wetmore 755 Fitchburg R. Co. v. Frost 211, 280 V. Page 280, 457, 458, 472 Fitzgerald v. Barbour 231, 251 V. Faunce 312 Fitzpatrick v. Boston & M. R. Co. 830 V. Mik 29 Flack V. Green Island 435, 437, 435, 440, 442 Flagg V. Worcester 736, 737, 759, 776, 778 Flaherty v. Moran 582 References are to Sections. 595 179 69, 80 234 722 78 Fleten v. Moorhead 211 Fleming's Appeal 808 Fleming v. Davis 737 Fletcher v. Bealey 885, 886 v. Evans 66 V. Smith 756 Flick's Estate 531, 538 553 Flickinger v. Shaw 78 Flint V. Bacon 146 Flora V. Carbean 164 283 Florida Southern R. Co. v. Brown 515, 521, 535, 536 Flynn v. Detroit 539 Fobes V. Rome W. & O. R. Co. 531 Fold V. Harris 863 Foley V. Goodchaux 763 V. Wyeth 585, 588, 604, 613, 615, 620, 626. 873 Folger V. Worth 457 Follendore v. Thomas 191, 395 Follman v. Mankato 775 Folsom V. Underbill 429, 453 Foot V. Bronson 764 V. New Haven & N. R. Co. 69 Foote V. Manhattan R. Co. 23, 119, 224 V. Met. El. R. Co. 511, 845, 849 Forbes v. Balenseifer 63, 80, 84. 449 Forbush v. Lombard 101 Ford V. Chicago & N. W. R. Co. 515, .552 V. Harris 231, 232, 341, 343. 249. 430 V. Knapp 890 V. Metropolitan R. Co. 127, 136, 36+ 265 V. Whitlock 423, 746, 754, 808 Forney v. Calhoun County 433 Forsyth v. Dunnagan 453 Forsythe v. Baltimore & O. Tel. Co. 494 Fort Edward Water Works v. Mc- Intyre 787 Fort Smith v. McKibbin 539, 533 Fort Wayne v. Coombs 457 V. Lake Shore & M. S. R. Co. 358 Foster v. Browning 69, 80 V. Buffalo 337 Fowlo V. New Haven & N. R. Co. 526 Fowler v. Saks 696, 720 V. Sanders 178 Fox V. Balto. & O. R. Co. 535. 536 V. Clarke 605 V. Hart 529, 535, 539 V. Mis.sion Free School 651, 663 V. Pierce 354. 880, 884 V. Union Sugar Refinery 227 337, 347, 348, 362, 365 xxix TABLE OF CASES. References are to Sections. Fox V. Virgin 476 Fiailey v. Waters 814 Fraley v. Brown 783 Fiancies's Appeal 146, 147, 154, 315 Frank v. Benesch 366, 408 Frankf ord & S . P. Citv P. E. Co. v. Philadelphia " 487 Frankhn v. Fisk 759, 777 V. Pollard Mill Co. 86 Franklin Ins. Co. v. Cousens 227, 228, 237 Frazier v. Brown 780, 805 V. Myers 407, 411 Freburg v. Davenport 776 Freedom v. Norris 424, 531. 843 Freeman v. Herwig 636, 695 V. Sayre 829 V. Weeks 808 Fremont v. June 847 Fremont E. & M. V. E. Co. v. Marley 764, 774 French v. Hayes 337, 346 V. Marstin 82, 159, 160, 164, 186, 290, 855, 360 V. Morris 22, 30, 42 V. Owen 65 V. Scheuber 449 V. Williams 23, 47 French Hoek v. Hugo 786 Freshour v. Hihn 460 Friedlander v. Del. & H. Canal Co. 835 Friel v. People 465, 470 Frink v. Lawrence 879 Fritcher t. Anthony 831 Fritsche v. Fritsche 845 Fritz V. Hobson 546 V. Tompkins 24, 298, 306, 827, 834, 345, 835 Frohman v. Dickinson 674 Fuhr V. Dean 68, 69, 73 Fullam V. Stearns 875 Fuller V. Chicopee Manuf . Co. 743 V. Arms 109, 111, 558 V. Grand Rapids 429 V. Swan River Placer Min. Co. 756 Fulton V. Dover 430, 451 V. Mehrenfeld 447 V. Short Route R. T. R. Co. 515, 516, 521, 523 Gage V. Mobile & O. R. Co. 427, 438 Gaines v. Hot Springs County 533 Galbraith v. Littiech 638 Gale V. Abbot 575 Galloway v. Bonesteel [141, 154, 157, 263, 312, 650 Gait v. Chicago & N. W. R. Co. 513, 515 Galveston v. Luffkin 866 V. Menard 529 V. Williams 449, 454, 866 Galveston, H. & S. A. R. Co. v. Tait 764, 774 Galway v. Met. El. R. Co. 514, 519 Gannon v. Hargadon 759, 760, 767, 769 Gardner v. Boston 208 V. Newburgh 748, 787, 883 V. Stroever 889 V. Webster 337, 388, 342, 354, 417 Gargan v. Louisville, N. A. & C. R. Co. 546, 547 Garland v. Furber 400, 407, 417, 816 V. Hodsdon 791 Garmire v. Willy 678, 679, 681, 683 Garnett v. Slater 294 Garraty v. Duflfy 343 Garrett v. Jackson 159, 160, 186, 269, 289, 457 Garrison v. Rudd 30, 83, 84, 35, 39, 93 Garstang v. Davenport 227 Garwood v. N. Y. Cent. & Hudson River R. Co. 737, 746, 750 Gaskin v. Balls 889 Gates V. Chicago, St. P. & K. C. R. Co. 519 Gatewood's Case 54 Gatewood v. Cooper 160 Gaus & Sons Manuf. Co. v. St. Louis, K. & N. W. R. Co. 523 Gaved v. Martyn 799, 807, 808 Gaw V. Hughes 227 Gawtry v. Leland 106, 757, 889 Gay, Petitioner 836 Gay V. Baker 11 V. Boston & A. E. Co. 280 V. Mut. Union Tel. Co. 494 Gavetty v. Bethune 159, 164, 166, 369, 314, 815, 317, 384, 835 Gayford v. Moffatt 166, 284, 298, 300, 306, 326, 334 V. NichoUs 604, 619, 620 Gebhardt v. Eeeves 446, 447, 549, 553 Geer v. Fleming 544 Geible v. Smith 141, 147, 268 Gentleman v. Soule 81, 234, 449, 459, 461,465,483 George v. Cox 337, 343, 366, 867 Georgetown v. Taylor 529 Gerber v. Grabel 573 Gerberling v. Wunnenberg 450, 453 Gerenger v. Summers 190 Gerhard v. Bridge Commissioners 550 V. Seekonk River Bridge 540 Com'rs Gerrard v. Cooke Gerring v. Barfield 814 581 TABLE OF CASES. References are to Sections. Gerrish v. Clough 734, 737 V. Shattuck 365, 395, 396, 397, 566, 880 Gest V. Kenner 425 Getchell v. Benedict 434 Gettworth v. Hedden 711, 713 Gibbs V. Williams 726, 737, 759 Gibertv. Peteler 118 Gibson v. Durham 387 V. Fischer 741 V. Holden 641, 651, 653, 670, 674, 686, 687 V. Porter 118, 407 V. St. Louis, A. & M. Asso. 69 Giess T. Schadt 647 GiflFen v. Olathe 446 Gilbert Y. Drew 674 V. Emerson 455 V. Greeley 543 V. Savannah, G. & N. A. R. Co. 773 V. Woodrufe 655, 733 Gilbert El. B. Co., In re 536 Gilder V. Brenham 435, 487, 449, 476 Gildersleeve v. Hammond 585, 588, 591, 604, 613, 615, 616 Giles V. Dugro 661, 668 V. Simonds 75 Gilford V. Winnepiseogee Lake Co. 165, 798, 800 Gillespie v Weinberg 374, 381, 391 Gillett V. Johnson 727, 728, 739, 737, 746 Gillham v. Madison Co. E. Co. 763 Gillis V. Nelson 814 Gillison v. Charleston 764, 775 Gilmau v. Tilton 741 Gilmore v. Armstrong 78, 86 V. Driscoll 165, 585, 588, 604, 606, 620, 621, 641 Gilpin V. Ansonia 517 Gilzinger v. Saugerties Water Co. 754 Glasby v. Morris 493 Glasgow V. St. Louis 550 Glave V. Harding 332 Glaze V. Western & Atlantic E. Co. 163, 374 Glenn v. Baltimore 435 V. Davis 706, 863, 869, 870 Glidden v. Towle 175 Gloninger v. Franklin Coal Co. 15, 53, 57 Gloucester First Parish v. Beach 164 285 Glover v. Manhattan E. Co. 508, 513 V. Mersman 632, 680, 721 V. Shields 334 Golding V. Williams 394 Goldsclimid v. Starring 649 Goldsmid v. Turnbridge Wells Imp. Com'rs 883 Goldsmith v. Elsas 762, 764 Good V. Altoona 755 Goodale v. Tuttle 759, 769 Goodall V. Godfrey 140, 154, 157, 803, 304, 806, 316, 384 V. Milwaukee 553 Goode V. St. Louis 436 Goodhart v. Hyett 812, 834, 883, 886 Goodrich v. Burbank 43, 49, 53, 59 V. Lincohi 653 Goodwin v. Marblehead 538 Googins V. Boston & Albany R. Co. 307 Gordon v. Milne 653, 687 V. Taunton 457 Gorham v. Eastohester Elen. Co. 495 V. Gross 731 Gormley v. Sanford 762, 807 Goss V. Calhane 284, 362, 365, 379 V. Highway Commissioner 546 Gosselin v. Chicago 446, 447 Goszler v. Georgetown 595 Gould v. Booth 759, 776 V. Boston 457 V. Boston Duck Co. 743, 746, 751 V. Stafford 753, 793 Gowen v. Phila. Exch. Co. 437, 438, 470 Grace Methodist Epis. Church v. Dobbins 130, 147, 170 Grady v. Dundou 457 Grafton v. Moir 308, 339, 356, 868, 374, 387, 394, 395, 397 Graham v. Hartnett 435, 443, 449 Grand Junction Canal Co. v. Petty 445 V. Shugar 785, 786 Grand Rapids & I. R. Co. v. Heisel 499 515 521 Grand Rapids St. R. Co. v. West Side St. R. Co. 504 Grand Surrey Canal Co. v. Hall 445 . Grand Trunk R. Co. v. Richardson 383 Grandville v. Jenison 446, 454, 456 Grant v. Allen 759, 761 V. Chase 126, 134, 166, 254, 315, 557, 835, 837 Graver v. Sholl 754 Graves v. Berdan 601 v. Mattison 585, 604, 630 V. Smith 633, 645, 653, 687, 696, 734 Gray v. Bond 163 V. Iowa Land Co 540 V. Knoxville 764 V. McWilliams 735, 787. 763 V. Saco Water Power Co. 790 V. Schriber 737, 759, 765 xxxi TABLE OF CASES. References are to Sections. Great FaUs Co. v. Worster 224, 314 Great Northern R. Co. v. St. Paul 430, 435, 455 Great WestR. Co. v. Cefn Cribbwr Br. Co. 597 Greatrex v. Hayward 805, 807 Greeley v . Maine Cent. R. Co. 759, 773 Green v. Berge 585, 583, 619 V. Bethea 438 V. City & Suburban E. Co. 503 V. Canaan 445, 450 V. Carotta 807 V. Chelsea 5(i V. Collins 31, 24, 39, 133 V. GofE 343, 407, 413, 416 Green Bay & M. Canal Co. v. Kau- kauna Water Power Co. 798 Greene v. Canny 360 V. Crelghton 113 V. New York Cent. & H. R. Co. 565 V. O'Connor 420, 423 Greenleaf t. Francis 781, 783, 783 Greenwald v. Kappes 665 Greenwood v. Hornsey 890 V. Met. El. R. Co. 509 Greenwood Lake & Port J. R. Co. V. New York & G. L. R. Co. 1, 63, 67, 72, 353 Greer v. Van Meter 141,153, 561, 562, 885 Gregory v. Bush 764, 799, 800 V. Knight 529 V, Lincoln 430 V. Nelson 828, 830 Gridley v. Hopkins 81 Griffin's Appeal 425, 437, 438 Griffin v. Bartlett 800 V. Sanbornton 543 Griffith Y. Rigg 101 Griffiths V. Galindo 425, 430, 431, 454 V. Morrison 20, 29, 153, 154, 164 Grigsby v. Clear LakeW. Co. 160, 804 Grimley v. Davidson 690 Grimstead v. Marlowe 54 Groat V. Moak 791 Groff V. Aukenbrandt 762 Grogan v. Hayward 331, 342, 243, 442, 455 531 Grose v. West 478,' 479 Gross V. Lampasas 759, 776 V. McNutt 439, 457 Grove v. Allen 549 V. Hodges 15 Grubb V. Bayard 15, 57 V. Grubb 49, 53, 57 V. Guilford 15. 29 Grube v. Nichols 435, 449, 538 Guentzer v. Juch 668 Guesnard v Bird 764 xxxii Guest V. Reynolds 573 578 , 579 ,604: Gulf C. & S. R. Co. V. Donahoo 764, 774 521 V. Eddins 515, V. Helsley 774 V. Montgomery 476 V. Richards 386 Gunson v. Healy 32, 360, 375 Gurney v. Ford 10, 13, 889 Gustaf son v. Hamm 515 Gutlirie v. New Haven 430, 449 Haag V. Delorme 160 190 Hacke's Appeal 855 Hadden v. Shoritz 38 Hagaman v. Dittmar 444 Hagerty v. Lee 93, 553, 884 Hahn v. Baker Lodge 839, 843 V. Thornberry 881 Haight V. Littlefield 337, 339, 341 , 3 J 3, 365, 43l> v. Price 160 V. State 431 Haines v. Drips 639 V. Hall 881 V. Taylor 886 Hair v. Downing 141, 153, 814 Haldeman v. Bruckhart 781, 783, 783, 786 Hale v. McLea 786 V. Oldroyd 853, 870 Haley v. Colcord 333 Hall V. Armstrong 34, B» V. Augsbury 801, 804 V. Baltimore 433 V. Chaffee 78 V. Ionia 55 V. Kauffman 435 V. Lawrence 298 V. Lichfield Brewerj- Co. 575 V. McCaughey 855, 863 V. McLeod 80, 269, 283, 289, 315, 425, 449, 472 V. Meriden 44S> V. Sterling Iron & R. Co. 791 V. Swift 189, 806 Halsey v. Rapid T. St. R. Co. 494, 503 Ham V. Common Council 531 V. Dadeville 430 Hamilton v. Chicago, B. & Q. R. Co. 446, 449, 552 V. Dennison 873 V. Farrar 845, 860' V. Icard 868 V. St. George's Vestry 823 v. State 535, 539 V. Wainwright 775, 778 V. White 429 Hamlin v. New York & N. E. R. Co. 313 TABLE OF CASES. References are to Sections. Hamlin v. New York, N. H. . R. Co. Hammann v. Jordan Hammond y. ScbiflE V. Woodman v.Zehner 159,163, !;H. 307, 164, 269 353 688 642 790 186, , 289 457 431 843 439 606 , 859 Hamson '^ Taylor Hancock v. Philadelphia V. Wentworth 334, 835, Hand Street, Matter of Handlan v. McManus 604, Hankey v. Clark 28, 42, 43, 93, Hanliu v. Chicago & N. W. R. Co. 515, 773 Hanna v. Clarke 791 Hannaher v. St. Paul M, & M. R. ■ Co. 773 Hannefin v. Blake 120, 164, 165 Hannibal v. Draper 434, 444 Hansen v. Southern Pac. R. Co. 473 Hansford v. Berry 160, 273, 286 Hanson v. Eastman 430 V. McCue 159, 165, 782, 786, 867 V. Taylor 449, 457, 476 Hapgood V. Brown 788 Harber v Evans 633, 651, 687, 688 6!)6, 724 Harbridge v. Warwick 166 Hardaker v. Idle Dist. Council 619 Harding v. Cowgar 160, 269, 547 V. Hale 81, 324, 435 V. Jasper 435 V. Wilson 227 Hardy v. Ala. & Y. R. Co. 160, 280 V. McCuUough 128, 134, 148 V. Memphis 454 Hargis v, Kansas City C. & S. R. Co. 290 Hargrave V, Cook 737,746,811 Hargreaves v. Kimberly Hargro v. Hodgdon Harkness v. Burton V. Woodmansee 160, 164, 764 546 78 180, 288 175 135 694 537 593 Harlow v. Stinson V. Whitcher Harmann v. Jordan Harmon v. L. N. O. &T. R. Co. V. Omaha Harper v. Advent Parish 270, 285, 288 V. State 439, 455 Harriman v. Howe 457, 463, 470, 476 Harrington v. St. Paul & S. C. R, Co. 515, 537 Harris v. Chicago 313 V. De Pinna 567, 576. 771 V. Prewe 11 V. Elliott 20, 24, 553 V. Jenkins 880 Harris v. Johnson 13, 207 V. Mackintosh 882 V. Ryding 589, 597, 601, 604 Harris County v. Taylor 487 Harrison v. Augusta Factory 337, 430 V. Boring ], 78, 86 v. New Orleans & P. R. Co. 521 v. Parker 478 Harrison County v. Seal 450 Harrop v. Hirst 875 Harsha v. Reid 117, 674 Hart v. Connor 337 V. Evans 754 V. Jamaica Pond Aqueduct Corp 785 V. Kucher 674 V. Leonard 889 V, Lyon 668, 674 V. Ked Cedar 459 V. Vose 164, 800 Hartford v. Hartford County 169 V. New York & N. E. R. Co. 535, 538 Hartman v. Pick 407 Hartshorn v. Chaddock 734 V. South Reading 544 Hartwell v. Mut. L. Ins. Co. 791 Hartz V. St. Paul & S. C. R. Co. 515 Hartzall v. Sill 743 Harvey v. Crane 394, 831 V. Walters 806 Harwood v. Benton 141, 783 V. Tompkins 583 V. West Randolph 780 Haskell v. New Bedford 775 Haslett v. Shepherd 830 Hastings v. Livermore 873 Hastings & G. I. R. Co. v. Ingalls 515 Hatch V. Tacoma, O. & G. H. R Co. V. Vermont Cent. R. Co. Hathaway v. Hathaway Haupt's Appeal 744, Havens v. Klein Haverford Electric L. Co. v. Hart Haverstick v. Sipe 557, 570, Hawkins v. Berkshire County V. Carbines Hawley v. Baltimore V. Mayor V. Sheldon Hawthorn v. Myers Hay V. Cohoes Co. V. Weber Hay den v. Attleboro V. Dutcher V. Stone Hayes v. Chicago, St. P., R. Co. xxxiii 366, 376, 585, 588, 561, 425, M. &0. 515 585, 767 104 747 557 498 573 543 385 430 231 729 444 620 546 462 573 449 547 TABLE OF CASES. References are to Sections. Hayford v. Spokesfield 851, 852, 855, 863, 870 Haynes v. Burlington 816 V. King 572 V. Thomas 231 244 548 Hays V. Hinkleman 762 764 V. Richardson 69 Hazard v. Eobinson 23 160 535 883 Hazeltine v. Case 744 Hazlett V. Powell 573 Heald v. Moore 581 Healey v. Batley 433 V. New Haven 595 Heard v. Brooklyn 549 553 Heartt v. Kruger 646, 649, 706, 709, 840 Heath v. Barman 515 V. Bucknall 806, 826, 878 V. Eicker 175 v. Williams 741 Hebron Gravel Road Co. v. Har- vey 728, 729 Heddleston v. Hendricks 529 Hegar v. Chic. & N. W. R. Co. 552 Heiland v. Cooper 663, 664 Heilbron v. Fowler Switch Canal Co. 749 Heimbach's Appeal 658, 659 Heine v. Merrick 637, 696 Heitz V. St. Louis 327, 231, 425, 430, 433, 440, 446 Held V. McBride 845 Heller v. Atchison T. & S. F. R. Co. 540 Helm V. McClure 425, 426, 427, 419, 546 V. Webster 552 Hemphill v. Boston 385, 400, 424 Henderson v. Central Pass. R. Co. 856 V. Hatterman 331, 234 V. Minneapolis 773 V. New York Cent. R. Co. 515. 525 Henderson Belt R. Co. v. Dechamp 515 Hendricks v. Johnson 737 V. Stark 651, 652, 661 V. Spring Valley M. Co. 632 Henn's Case 333, 483 Hennessey v. Old Colony & N. R. Co. 239 Hennessy v. Murdock 337, 331, 241 855, 861, 862, 863, 869 Henning v. Burnet 355, 856, 360, 372, 841 Henry v. Koch 126, 153, 154, 164, 649, 855 Henshaw v. Hunting 529, 537 Herhold v. Chicago 433, 487, 476 xxxiv Hermann v. Roberts 357, 879, 385, 386, 389, 391, 893, 394, 814, 815, 831 Herrick v. Marshall 22, 93, 110, 113, 118 Herrington v. Peck 763 Hershfield v. Rocky Mt. Bell Tel. Co. 494 Heselton v. Harmon 337, 343 Hesperia Land & W. Co. v. Rogers 187, 188 Hestonville M. & F. Pass R. Co. v. Philadelphia 856 Hetfield v. Baum 303 V. Central R. Co. 69, 71 Heth V. Fond du Lac 778 Hetrich v. Deachler 746 Hewett V. Western U. Tel. Co. 494 Hewitt V. Pulaski 327, 424, 425 Hewlins v. Shippam 1, 69, 73, 80, 83, Hext V. Gill 597, 600, 631 Hibberd v. Mellville 425, 439, 433 Hicklin v. McClear 430 Hickox V. Chic. & C. S. E. Co. 856 V. Parmelee 166 Hicks V. Silliman 762, 764, 881 Hide V. Thornborough 606, 631 Hieatt v. Morris 166, 573, 645, 649, 709, 717,840 Higgins V. Flemington Water Co. 748 Hill V. Chicago, St. L. & N. O. R. Co. 523 V. Cincinnati, W. & M. R. Co. 731, 759, 769, 772 V. Crosby 159, 197 V. Cutting 75 V. Grange 253 V. Hagaman 269, 282, 283, 384 V. Hill 75 V. Lord 53, 54, 55, 56, 57, 78, 457 V. Shorey 55 V. Smith 758 Hillary v. Walker 535 Hilliard v. Gas Coal Co. 570 Hilliker v. Coleman 728 Hills V. Miller 1, 32, 36, 80, 104, 106, 388, 551 Hinchcliffe v. Earl of Kinnoul 360 Hinchman v. Paterson H. R. Co. 499 515 Hinckley v. Nickerson 746, 751 Hinde v. Charlton 11 Hindson v. Markle 756 Hine v. New York El. R. Co. 488, 513 Hines v. Hamburger 330, 344 V. Johnston 544 V. Robinson 791 Hinkle v. Avery 733 Hinks V. Hinks 4(14 Hiss V. Baltimore H. Pass. R. Co. 499 Hoadley v. San Francisco 430, 436, 531 TABLE OF CASES. References are to Sections. Hoagv. Place 88,160,164,174,186, 800 Hobai-t V. Milwaukee R. Co. 499 V. Plymouth County 538 Hobbs T. Lowell 425, 440, 443, 449 Hoboken Land Co. v. Hoboken 450 Hobson V. Cartwright 556 T. Philadelphia 337, 543 Hodges T, Baltimore Union Pass. R. Co. 499 V. Seaboard & R. Co. 515 Hodgkins v. Farrington 63, 65, 73, 160, 643, 643, 645 Hodgkinson v. Ennor 756, 783 Hodgson V. Jeffries 78 Hoehl V. Muscatine 769 Hoffman v. Kuhn 706, 709, 840 V. Savage 44 160, 843, 867 Hoffstot V. Yoight 639, 708 Hogan V. Barry 33, 45, 105, 106, 110, 113, 554 V. Cent. Pac. R. Co. 531 Hogenson v. St. Paul, M. & M. R. Co. 764, 768 Hogg V. Gill 476 Hoggatt V. Vicksburg S. & P. R. Co. 854 Hogue V. Albina 435, 437, 430 Holbrook v. McBride 464 Holdane v. Cold Spring 427, 444, 449, 454 Holdenv. Gibson 670 T. Lake Co. 751 Hole V. Railway Co. 619 Holker v. Porritt 799, 808 Holland v. Brown 511 HoUenbeck v. McDonald 33, 836 HoUins V. Demorest 396 V. Verney 271 Hollister v. Union Co. 595 HoUoway v. Delano 337 T. Southmayd 327, 24S, 246 Hollv Grove v. Smith 430 Holmes v. Bellingham 380, 478 V. Buckley 831 V. Goring 298, 306, 315, 384 V. Seely 394, 398, 314, 337, 338, 333, 334, 337, 483, 484 Holsman v. Boiling Spring B. Co. 165, 737, 794 Holt V. Sargent 375, 457, 461, 539, 535, 541 Home V. Richards 307 Home Building & C. Co. v. Roanoke 530 Homer v. Riker 438 Honsel v. Conant 579, 581 Hook V. Joyce 176 Hooker v. Cummings . 60 V. Utica & M. Turnp. R. Co. 553 Hoole V. Attorney-General 437, 444 Hoosier Stone Co. v. Malott 33, 39, 360 Hooten v. Barnard 806 Hope V. Barnett 440 Hopper V. Barnes 18, 19, 36, 47 Horey v. Haverstraw 337, 536, 538 HornlDaok v. Cincinnati & Z. R. Co. 71, 78 Hornbeck v. Westbrook 91 Horner v. Stillwell 160, 200, 800, 863, 865, 867, 869 V. Watson 597 Horton v. Williams 337, 546 Hortsman v. Covington & L. R. Co. 596 Hosher v. Kansas City, St. J. & C. B. R. Co. 773 Hougan v. Milwaukee & St. P. R. Co. 784 Houghtaling v. Houghtaling 63, 69 Houghton V. Mendenhall 657 Houpes V. Alderson 400, 403, 407 House V. Montgomery 69, 160, 164, 179 Houston V. Laffee 64, 69 Houston & T. C. R. Co. v. Odum 531 Howard v. State 453, 457, 458, 461, 465, 48? Howe V. Alger 337, 238, 329, 237 V. Bell 230 T. West End St. R. Co 503 Howell V. Estes 139, 153, 157, 835 V. King 390, 360 V. McCoy 737, 755 Howes V. Ball 64 Howtou V. Frearson 398, 308 Hot v. Sterrett 743 Hoyle V. New York & N. E. R. Co. 183 Hoyt & Hudson 727, 759, 775, 776 Hubbard v. Town 573, 630 V. Webster 776 Huber v. Gazley 430 Hubert v. Groves 244 Huck V. Flentye 642, 707, 709 Hudson River Telep. Co. v. Water- vliet T. & R. Co. 497, 503 Huff V. McCauley 49, 52, 57, 77, 78, 80 Huffman v. Hall 425, 433, 443 Huggins V. McGregor 160, 164 V. Manhattan R. Co. 510 Hughes V. Anderson 746, 763, 764, 765, 767 V. Met. El. R. Co. 506 V. Peroival 619 Hulett V. Hulett 426 Huling V. Chester 673, 674 Hull V. Babcock 68 HuUey v. Security Trust Co 573, 885 Humbolt County v. Dinsmore 464 XXXV TABLE OF CASES. References are to Sections. Humphreys v. Blasingame 289, V. Woodstown 531, Humphries v. Brogden 585, 588, 600, 601, 606, v. Cousins Hunt V. Ambruster V. Peaks 630, V. Eousmanier Hunter v. Carroll V. Manhattan E. Co. V. Middleton V. Sandy Hill Huntington v. Asher 33, 49, 53, 814, Hurd V. Curtis 43, 791, Hurdman v. North Eastern E. Co. 764, Hurlburt v. Firth 145, Hurley v. Boom Co. Hursh V. First Div. R. Co. Huson V. Young 385, 387, 400, 403, Hussner v. Brooklyn City E. Co. 499, 503, Huston V. Bybee 164, T. Leach Hutchinson v. Ulrich Huttemeier v. Albro Hutto V. Tindall Hutton V. Hamboro Huyck V. Andrews Hyde v. Jamaica Hyde Park v. Borden Hynds v. Shults 19, 31, 33, 38, 98,- 140, 337, 439, 449, 366, 315, 867 539 597, 613 755 631 639 74 890 510 553 443 174, 833 863 771 887 455 527 407 519 180 783 116 26, 835 476 393 1 318 553 803 Illinois Cent. E. Co. v. Chicago 213 V. Houghton 863 V. Miller 764, 773, 774 V. Wilbourn 771 Illinois Ins. Co. v. Littlefield 449 Imlay v. Union Branch E. Co. 486, 515, 525 Imlerv. Springfield 776 Immaculate Conception Church v. Sheflfer 386, 389 Indiana, B. & W. E. Co. v. Eberle 518, 547 Indianapolis v. Croas 331 V.Kingsbury 231,480,433,441, 549 Indianapolis, B. & W. E. Co. v. Hartley 447, 449, 499, 515, 542 V. Smith 774 Indianapolis Cable St. E. Co. v. Citizens' Street E. Co. 501 Ingals V. Plamondon 139, 148, 153. 649, 651, 687, 694 Ingles V. Bringhurst 639 Ingraham, Matter of 243 V. Camden W. Co. 748 xxxvi Ingraham y. Bunnell V. Hough V. Hutchinson Ingi'am v. Police Jury Inman t. Tripp Innes v. Ferguson 884 164, 269, 283 164, 741, 794 531 775 166 Investment Co. v. Ohio & N. W. Ey. Co. 20, 34 Irwin V. Dixion 435, 430, 437, 470, 473 V. Great Southern Tel. Co. 494 V. Phillips 758 Iselin V. Starin 269, 450 Iverson v. Dubose 583 Ives V. Van Auken 101 Ivimey v. Stooker 808 Ivins V. Ackerson 175 Jackman v. Arlington Mills 755, 764, 767 68, 64 85 20, 478, 479 11 291, 355 1 Jackson v. Babcock V. Cator V. Hathaway V. Eounseville V. Stacey V. Trullinger Jackson & S. Co. v. Philadelphia, W. & B. E. Co. 69, 71, 80, 88 Jacksonville v. Jacksonville E. Co. 487 Jacksonville, North W. & S. E. E. Co. v. Cox 774 Jacksonville, T. & K. W. E. Co. V. Lockwood 536 V. Thompson 543, 550 Jamaica Pond Aqueduct Co. v. Chandler 44, 91, 308, 849, 869 James v. Plant 835 V. Stevenson 866 Janes v. Jenkins 129, 157, 164, 561 Janesville v. Milwaukee & M. E. Co. 515 Jaqui V. Johnson 828 Jarstadt v. Smith 141, 154, 298, 306, 313, 333 Jarvis v. Dean 420, 442 Jean v. Pennsylvania Co. 727 Jeannin v. De Blanc 689 Jeffers v. Jeffers 727, 764 Jeffersonville, M. & I. E. Co. v. Esterle 521, 525, 538, 548 & T. E. Co. V. Jeffersonville, M. O'Connor Jeffries v. Williams Jencks v. Kenny Jenkins v. Lykes 535, 553 613 587 73, 75 Jenkins v. Wilmington & W. E. Co. 767 Jennings v. Tisbury 440, 457, 458 461. 463 Jennison v. Walker 160, 343, 344, 352, 793, 836, 838, 863, 866, 867, 870 TABLE OF CASES. References are to Sections. Jersey City v. Gardner 878 V. Morris Canal & B. Co. 531 Jersey City & B. R. Co. v. Jersey City & H. Horse E. Co. 499, 531 Jewett V, Hussey 179, 183 V. Jewett 863, 864 Jolm Hancock Mut. L. Ins. Co. V. Patterson 129, 146, 154, 157 John Mouat Lumber Co. v. Denver 430, 453, 454 Johnson v. Borson 833, 366, 407, 456 V. Chicago, St. P. M. & O. R. Co. 726, 759, 773 V. Jaqui 826 V. Jordan 136, 129, 136, 139, 106, 737 V. Kinnicutt 337, 343, 366, 387, 414 V. Knapp 22, 124, 130 T. Lewis 1, 86, 160, 164, 267, 294, 295 V. Rand 791 V. Rayner 31 V. Shelter Island O. & C. M. Asso. 115, 228, 331, 247, 523, 391 V. Skillman 63, 69, 73, 84 V. Thompson-Houston Elec. Co. 498 Johnston v. Hyde 8i8 Johnstone Iron Co. v. Cambria Iron Co. 15, 57 Joliet & C. R. Co. V. Healy 7i7 Jones V. Adams 22, 89, 90, 788, 820, 829, 886 V. Bangor 593, 595 V. Crow 7!)4 V.Davis 461,467 V. Erie & W. Val. R. Co. 515, 520 V. Gooday 621 V. Hannovan 737, 734, 759 V. Jones 163 V. Peroival 294, 395, 337, 343, 814, 821, 828, 831 V. Phillips 425, 469 V. St. Louis, I. M. & S. R. Co. 732. 759, 772 V. Van Bochove 211, 312, 843, 856, 863, 864, 870 V. Wabash, St. L. & P. R. Co. 726, 737 V. Wagner 597, 600 V. Williams 177 Jones Fertilizing Co. v. Cleveland C. C. & St. L. R. Co. 298 Jordan v. Kraft 681 V. St. Paul, M. & M. R. Co. 768, 773 Joseph V. Ager 795, 811 Joseph County v. South Bend & M. St. R. Co. 353 Joslin V. Sones 823 Joy V. St. Louis 106, 118 V. Boston Penny Sav. Bank 647, 652, 670 Joyce V. Conlin 393 Judson V. MaUoy 869 Julia Build. Asso. & Bell Tel. Co. 494 Kaler v. Beaman 383, 392, 791 , 814, 831 V. Campbell 744 Kamphouse v. Gaffner 69, 73, 74 Kana v. Bolton 289, 395 Kane v. New York El. R. Co. 488, 499. 508, 512, 521, 548 Kankakee Drainage Dist. v. Lake Fork Special Drainage Dist. 760 Kansas v. Adkins 437 V. Swops 737 Kansas Cent. R. Co. v. Allen 394 Kansas City & E. R. Co. v. Riley 759 Kansas City, C. & S. R. Co. v. Woolard 388, 438 Kansas City, M. & B. R. Co. v. Lackey 764, 773 V. Smith 739, 733 Kansas City Milling Co. v. Riley 435, 440, 444, 449, 450 Kansas, N. & D. R. Co. v. Cuyken- dall 521 KarmuUer v. Krotz 1, 33, 33, 36, 38, 45, 92, 93, 94, 215, 343 Karst V. St. Paul, S. & T. F. R. Co. 621 Kaufman v. Tacoma, O. & G. H. R. Co. 515 Kaufifman v. Griesemer 763, 764, 770 Kay V. Kirk 766 V. Oxley 356, 359, 300 V. Pennsylvania R. Co. 66 Kearney v. Met. El. R. Co. 513, 519 Kearr v. Sossan 674 Keating v. Cincinnati 587, 593 V. Hayden 352, 412 V. Korfhage 683 V. Springer 553, 557, 572, 573 Keats V. Hugo 170, 553, 557. 570, 573, 693 Keenev & W. Manuf . Co. v. Union Manuf. Co. 741 Keiper v. Klein 557, 573, 573 Keith V. Brocton 770 Keller v. Abrahams n9 Kellett V. Clayton 4 Kelley v. Saltmarsh 220. 829, 830 Kellinger v. Forty-second & G. S. F. R. Co. 499, 500, 521 Kelsey v. King 493, 515 Kells V. Helm 058 xxxvii TABLE OF CASES. References are to Sections. Kelly V. Chicago 459 V. Dunning 141, 143, 145, 147, 150, 154, 157, 254, 727, 764, 889 V. New York 794 V. Taj-lor 645 Kelly Nail & I. Co. v. Lawrence Furnace Co. 536, 538 Kemper v, Louisville 776 Kennedy v. Jones 479, 531 V. Le Van 449, 450, 453 V. McCollam's Succeseion 799 V. Scovil 94 Kennelly v. Jersey City 503 Kennison v. Beverly 778 Kensit v. Great Eastern Ry. 746, 753, 754, 876, 885 Kent V. Judkins 383 T, Waite 22, 23, 29, 34, 197, 273 Kent Furniture Manuf. Co. v. Long 47 Kentucky Cent. R. Co. v. Paris 475 Kenworthy v. TuUis 21 Kenyon v. Nichols 129, 143, 147, 257 Keppell V. Bailey 40, 107 Kernochan v. New York El. R. Co. 513 Kessler v. Letts 581 Ketchum v. Newman 587, 604, 723 Keteltas v. Penfold 641, 668, 682 Keyser v. Mann 160 Kidgill V. Moor 873 Kiefifer v. Imhoflf 3, 145, 147, 254, 265, 835, 837 Kilburn v. Adams 187, 270, 274, 276, 385, 388 Kilgore v. Grevemberg 765 Kilgour V. Ashcom 129, 140, Killion V. Kelley 829, 830 Kilmer v. Wilson 207 Kimball v. Cocheco R. Co. 398, 315 V. Homan 546 V. Kenosha 435, 540, 552 V. Ladd 193 Kimm v. Griffln 668 Kincaid v. Indianapolis Nat. Gas Co 491 King v. Barr 444 v. Chicago, B. & Q. R. Co. 807 V. Flecknow 481 V. Large 573 V. Leake 450, 453 V. Marquis of Downshire 420 V. Miller 561, 573 V. Murphy 209, 845, 847, 849, 851, 852, 855, 863, 870 V. Trafford 739 V. Wight 668, 669, 679 King's County F. Ins. Co. v. Stev- ens 550 Kingsland v. Mayor 88 xxxviii Kingsland v. Tucker 665, 665 Kingstou-upon-Hull v. Horner 83S Kinnaird v. Standard Oil Co. 757 Kinney v. Hooker 337, 354 Kino V. Rudkiu 885 Kingsley v. Gouldsborough Land Imp. Co. 398, 304, 315, 330- Kirby v. Fitzpatrick 639 Kirkham v. Sharp 360, 379 Kirkpatrick v. Brown 855 V. Peshine 106, 1 IS Kirkwood v. Finegan 583 Kirschner v. Western & Atl. R. Co. 191 Kittaning Academy v. Brown 539 Kittle V. PfeifEer 430 Kivett V. McKeithan 69 Klauder v. McGrath 653 Klein v. Gehrung 165, 573 Klenk v. Walnut Lake 441 Knabe v. Levelle 242, 474, 557, 575 Knapp V. St. Louis Transfer R. Co. 523, 534 Knight V. Beenken 689 V. Brown 764 V. Kansas City, St. Jo. & C. B. R. Co. 533 V. Heaton 529, 533, 549 V. Pursell 633 Knights of Pythias v. Leadbeter 185 Knoblock v. HoUiuger 417 Knowles v. Ott 678, 679 Knox V. Chaloner 531, 534 V. New York 478, 485, 486, 515, 520, 531, 546 V, Tucker 174 Kobs V. Minneapolis 775 Koch V. Delaware, L. & W. R. Co. 766 V. North Avenue R. Co. 503 Koelle V. Knecht 33, 39, 90, 93 Koenig v. Haddix 647 Koenigs v. Jung 300 Kopf V. Utter 539 Kopp V. Northern Pac. R. Co. 585, 619, 631 Korn V. New York El. R. Co. 510 Kramer v. KnaufE 34, 38, 47 Kraut's Appeal 343, 344 Krehl v. Burrell 855, 889, 890 Kreigh v. Chicago 538 Krier's Private Road 159 Kripp V. Curtis 123, 160, 186, 290, 298, 318, 327, 334 Krug V. St. Mary's Borough 775 Kruger v. Le Blanc 457 Kucheman v. Chicago, C. & D. R. Co. 515, .525 Kuecken v. Voltz 18, 23, 34, 38, 47, 93, 93, 86a TABLE OF CASES. References are to Sections. Kuhlman v. Hecht 22, 160, 283, 284, 298, 315 Kupt V. Utter 531 Kurtz V. Hoke 268, 294, 295, 296, 483 Kyle V. Logan 81, 425, 437, 439, 444, 459, 461, 470 Lacy V. Arnett Lackland v. N. M. E. Co. 77, 86, 800 523, 546, 548 Ladd V. Boston 106, 113, 554, 555 V. Philadelphia 594 Lade v. Shepherd 422, 479 Ladue, Matter of 242 Ladytnanv. Grave 166 Lahr v. Metropolitan Elev. R. Co. 8, 17, 488, 489, 506, 507, 526, 554, 565 Laing v. United N. J. R. & C. Co. 531 Lake Erie & W. R. Co. v. Boswell, 445 T. "Whitham 443 Lake Roland El. R. Co. v. Web- ster 519 Lake 'shore & M. S. R. Co. v. Cleveland 425, 535 Lakeside Ditch Co. v. Crane 165, 606. 867 Lake View v. Le Bahn 434, 455 Lamar County v. Clements 231, 425, 478, 487 Lamb v. Walker 628 Lambert v. Alcorn 727, 730, 767 Lamm v. Chicago, St. P.. M. & O. By. Co. 71, 488, 489, 511, 515, 517, Lampman v. Milks 128, 129, 133, 'l34, 143, 147, 154, 157, 557, 605, 649 Lance's Appeal 383 Landell v. Hamilton 556 Landers v. Whitefield 457 Landis v. Hamilton 425, 437, 438, 449 Lane v. Capsey 891 V. Kennedy 529, 530, 539 V. Miller 78 Laney V. Jasper 763 Lanfranchi v. McKenzie 885 Langfoi-d v. Poppe 195 Langley v. Hammond 254, 359, 265 Langmaid v. Higgins 349 Lanier v. Booth 80, 160, 163, 164, 179, 180, 283, 470 Lankin v. Terwilliger 227, 238, 304, 479 Lansburgh v. Diat. of Columbia 425, 453 Lansing v. Wiswall 30, 1,59, 160 Lapere v. Luokey 570, 573, 579 Larned v. Lamed 439 Larsen v. Peterson 135, 138, 136. 143, 149, 365 Larson v. Fitzgerald 535, 536, 541 V. Met. Street R. Co. 604, 610, 612, 613, 614, 619 Lasala v. Holbrook 585, 604, 606, 610, 613, 613, 630, 633, 680 Latham v. Los Angeles 425 Lathrop v. Central Iowa R. Co. 535, 541 V. Eisner 18, 33, 85, 48, 93, 95, 315, 863 V. Haley 749 Latimore v. Davis 765 Littimer v. Livermore 554, 556, 853, 855 Lavergne v. Lacoste 689 Lavillebeuvre v. Cosgrove 680, 683, 687 Lawe V. Kaukauna 485 Lawrence v. Great North R. Co. 729 V. Jenkins 175 V. Springer 65, 69, 80, 85 Lawrence Railroad Co. v. Williams 515 Lawson v. Langley 189 Lawton v. Rivers 398, 815, 320, 334 V. Ward 390, 860 Leach v. Hastings 31 Learned v. Castle 764 V. Tangeman 753 Leavenworth Lodge V. Byers 613,660, 715, 858 Leavenworth, N. & S. R. Co. v. Curtan 515, 518, 536, 547 Lebanon Light, H. & P. Co. v. Leap 491 Lee V. Bumgardner 15 V. Lake 425 V. Minneapolis 775 V. McLeod 78 V. Mound Station 454, 530 V . Pembroke Iron Co. 737 V. Sandy Hill 454 Leech v. Sohweder 555, 563 Leeds v. Richmond 493 Lefavour v. McNulty 80, 337, 379 Le Fevre v. Le Fevre 77 Legg V, Horn 183 Lehigh Valley R. Co. v. McFarlan 158, 159, 160, 161, 163, 164, 179, 192, 193, 194 Lehigh Zinc & Iron Co. v. Trotter 889 Leidlein v. Meyer 762, 799 Leland University v. New Orleans 425, 430 Lemaitre v. Davis 605, 606, 619 Lembeck v. Nye 737 Lemmon v. Webb 177 Lemon v. Hayden 457 Lennig v. Ocean City Asso. 331, 336, 387, 341 xxxix TABLE OF CASES. References are to Sections. Lentz V. Carnegie 756 Leonard v. Baton Eouge 423 V. Leonard 197, 255, yi8, 333, 816 V. White 20,126 Lessard v. Stram 727, 759, 773 Letts V. Kessler 581 Levaroni v. Miller 756 Levasser v. Washburn 533 Levet V. Lapeyrollerie 798 Levy V. Brothers 578, 580 Lewis V. Balder 529 V. Beattie 98, 226, 227, 236 v. Carstairs 360 V. Chapman 889 T. New York, L. E. & W. R. Co. 468, 470 V. Portland 425, 438, 487, 473 V. Stein 531 Lewis Street, In re 247 Lewiston v. Proctor 457, 587, 538 Lexington Avenue, In re 530 Lexington & O. E. Co. v. Apple- gate 489, 521 Lexington City Nat. Bank v. Guynn 878 Leyman v. Abeel 52 Lide V. Hadley 19, 315 Liford's Case 812 Liggins V. Inge 847, 853, 870 Lincoln v. Chadbourne 743 V. Commonwealth 493, 594 V. Lincoln 791 v.- Rodgers 756 T. Taunton Copper Manuf. Co. 756 Lincoln & B. H. R. Co. v. Sutter- land 767, 772 Lincoln Rapid Transit Co. v. Rundle 488 Lincoln St. R. Co. v. Adams 764 Lindeman v. Lindsey 863 Lindsay v. Jones 98, 227, 237 V. Lynch 85 Linkenhoker v. GraybOl 33, 30, 298 Linnehan v. Rollins 619 Lippincott v. Harvey 430 List V. Hornbrook 641, 647, 648, 708, 709 Litchfield v. Wilmot 529 Littlefield v. Maxwell 53, 54, 57 Little Miami R. Co. v. Hambleton 521 Little Rock v. W^right 452 Little Rock R. Co. v. Chapman 774 Littler v. Lincoln 447, 449, 454 Livett v. Wilson 158, 163, 192 Livingston v. McDonald 726, 727, 759 764 V. Moingona Coal Co. 597 V. New York 337, 331, 243, 343 xl Livingston v. Ten Broeck 10 Llano V. Llano County 433, 455, 487 Locke V.Hale 114 Lockhart v. Geir 63, 65, 73 V. Street R. Co. 499, 503 Lockland v. Smiley 430 Lockwood V. Wabash E. Co. 533, 524, 525 Lockwood Co. v. Lawrence 755, 880, 833 Logan V. Rose 430, 444, 449 V. Stogsdale 398, 303, 314, 322, 448 Logansport v. Dunn 430 London v. Riggs 298, 303, 305, 315, 325 London & N. W. R. Co. v. Evans 597 London Brewery Co. v. Tennant 890 Long V. Battle Creek 423 v. Fewer 93, 94, 227 V. Gill 338, 385, 387 V. Mayberry 80, 204. 818 V. Weller 23 Long Island R. Co. v. Conklin 207 V. Garvey 17 Longendyck v. Anderson 845, 884 Longendyke v. Anderson 254, 257 Lonsdale Co. v. Moies 43 Lord V. Atkins 327, 241 V. Carbon Iron Manuf. Co. 884 V. Meadville Water Co. 737, 748 Lore V. Stiles 298 Lorie v. North Chicago R. Co. 501 Loring v. Otis 327, 229 Los Angeles Cemetery Asso. v. Los Angeles 430, 445, 450 Louisiana Ice Mfg Co. v. New Orleans 539 Louisville v. Louisville Rolling Mill Co. ^ 593 Louisville & N. E. Co. v. Bonhayo 585, 604. 623 V. Covington 856 V. Hays 762, 774 V. Koelle 18, 34, 36, 38, 39, 47, 118, 331, 284, 554 V. Mossman 808 Louisville Bagging M. Co. v. Cen- tral Pass. E. Co. 503 Louisville, N. A. & C. E. Co. v. Etzler 457 V. Malott 363, 368 V. White 535 Louisville, St. L. & T. R. Co. v. Stephens 443 Love V. Bell 597 T.ovell V. Smith 429, 845, 852 Low V. Innes 890 V. Streeter 207, 208 Lowell V. Boston 743 Lowell Inst, for Savings v. Lowell 114 TABLE OF CASES. References are to Sections. Lounsdale v. Portland 425, 427, 444 Lucas V. Smithfield, etc., Turn- pike Co. 160, 17.3 Lucev. Carley 164, 180 Ludeling v. Stubbs 762, 767 Ludlovr V. Hudson River E. Co. 596 Luecken v. Wuest 379 Luther v. Winnisimmet Co. 727, 737, 759 769 Lutterloh v. Cedar Keys 486,' 487 Luttrel's Case 826 Lux V. Haggin 737, 793 Lybe's Appeal 784 Lyle V. Lesia 538 V. Little 718 Lyman v. Arnold 391, 817 Lynch v. New York 764, 776 V. Union Inst, for Savings 890 Lynn v. Turner 823 Lyon V. Fishmongers' Co. 485 V. Lea 353 V. McDonald 312, 383, 583 V. McLaughlin 755, 881 Mabie v. Matteson 33, 166 McCaU V. Davis 231, 234 McAllister v. Devane 835, 845 V. Pickup 160, 164, 180, 283, 457, 475 McBryde v. Sayre 889 McCallum v. Germantown Water Co. 755, 794 McCann v. Day 133, 880 McCardle v. Barricklow 268, 269 McCarthy v. Mut. Relief Asso. 78, 651 McCartney v. C. & E. R. Co. 498, 503 McCarty v. Eatchenman 147, 254, 364, 837 McClelland v. MiUer 539 McCleneghan v. Omaha & R. V. R. Co. 774 Macomber v. Godfrey 738, 729, 787 Macon v. Franklin 78, 335 McConnel v. Kibbe 601 McConnell v. Rathbun 237, 338, 369, 385 MoCord V. Herrick 647 V. High 737, 748 McCormack v. Crow 346 McCormick v. Baltimore 435, 437, 438, 453 V. Dist. Columbia 494 V. Horan 781, 746, 764, 767 V. Kansas City, St. Jo. & C. B. R. Co. 737, 733, 759, 764, 774 McCoy V. Danley 737 McCracken v. McCracken 69 McCready v. Thomson 573 McCreary v. Boston & M. R. Co. 164, 179, 369, 380, 382, 471, 473 McCullough v. St. Paul, M. & M. R. Co. 596 V. San Francisco 487 McDaniel v. Cummings 734, 763 V. Walker 44 McDonald v. Askew 737 Macdonald v. Ferdais 123 M'Donald v. Lindall 315, 318 McElhone's Appeal 384 McElroy v. Goble 744, 754 McEwen v. Nelson 663 McFarlane v. Kerr 530 McFerren v. Mont. Alto Iron Co. 338 Mcflee's Appeal 540, 549 McGettigan v. Potts 585, 604, 630, 621 McGittigan v. Evans 680 McGregor v. Wait 460 McGuire v. Grant 585, 588, 604, 617, 619, 630, 621 Mclntyre v. Storey 425, 426 McKee v. Delaware & H. Canal Co. 746, 751, 766 V. Perchment 337, 281, 234, ,437 McKenna v. Boston 457, 463 McKenzie v. Elliott 160, 372, 383 V. Gilmore 439 Mackey v. Harmon 661, 668, 683 McKey v. Hyde Park 425, 487, 440 McKillip v. Mollhenny 77 McLauchlin v. Charlotte & S. C. R. Co. 533 McLaughlin v. Ceoconi 645, 646 McLarney v. Pettigrew 643 McLemore v. McNeley 435, 457 McMahon v. Williams 47, 94 McMakin v. Magee 80, 32 McManus v. Cooke 85 McMaugh V. Burke 629, 680, 886 McMillan v. Cronin 413, 814, 818, 819, 831, 822, 831 V. Lauer 21 McMiUen v. Watt 587, 616 McNeal v. Rebman 223 Macomber v. Nichols 533 McPherson v. Acker 150, 154, 854 Macpherson v. Scottish Rights of Way 466, 474 McQuaid v. Portland & V. E. Co. 523, 524 McShane v. Moberly 444 McTavish v. Carroll 154, 166, 298, 306, 838, 385, 393, 835 McVev V. Durkin 689, 645, 658 McWhorter v. State 453 Macy V. Met. Elev. R. Co. 873 Madison v. Booth 435 Madison v. Gallagher 457, 459, 461, 467, 587 Magistrates of Linlithgow v. Elphinstone 737 xli TABLE OF CASES. References are to Sections. Mahady v. Bushwick R. Co. 499 Mahan v. Brown 578, 579 Mahler v. Brumder 249, 420, 449, 454, 457, 546 Mahon V. New York Cent. R. Co. 515, 516 Mahonning County t. Young 550 Maine v. Cumston 666, 668, 680, 681, 683 Maire v. Kruse 587 Mairs v. Manhattan Real Est. Assoc. 615 Malcolm v. New York El. R. Co. 510 Mallett V. Uncle Sam G. & S. M. Co. 870 Manchester v. Hoag 425 Manchester Cotton Mills v. Man- chester 529 Manderbach v. Orphan's Home 23 Manderschid v. Dubuque 435, 440, 449, 453 Manier v. Myers 164 Maukato t. Willard 436 Mann v. Brodie 443 V. Elgin 449 Manning v. Port Reading R. Co. 353, 830, 863, 889 V. Smith 25, 29, 166. 885 V. Wasdale 55, 57 Manrose v. Parker 461, 464, 477 Mansfield v. Shepard 418, 825 Mansur v. Blake 166 V. Haughey 449 V. State 449 Marble v. Price 530 Marcly v. Shults 800, 804 Marcy v. Taylor 435 Marigny v. Poritchartrian R. Co. 856 Marion v. Johnson 653 V. SkiUman 441, 457 Mark v. West Troy 435, 437, 454 Market Street R. Co. v. Cent. R. Co, 499 Marsh v. Fairbury 446, 447 V. Haverhill Aqueduct Co. 343 Marshall v. Trumbull 324, 314 V. Ulleswater Co. 485 Marston v. Gale 69 Martin v. Benoist 764 V. Bigelow 743 V. Gainsville Jeflf. «fc So. R. Co. 764, 874 V. Gleason 794 V. Headon 885 V. Houghton 66 V. Jett 763 V. Patin 314, 315 V. Riddle 762, 764, 770 Mai'vin v. Brewster Iron M. Co. 313, 597, 604 xlii Mason V. Brooklyn City & N. R.Co. 499 V. Chicago 430, 446 V. Davison 187, 191 V. HiU 741, 795 V. Horton 140, 863, 865 V. Hoyle 746 V. Shrewsbury & H. R. Co. 6, 725, 739, 795, 807, 810 V. Sioux Falls 443 Masonic Asso. v. Harris 854 Massey v. Goyder 610, 612, 613, 616 Masson's Appeal 643, 680 Masury v. Southworth 670 Mather v. Chapman 94 Mathewson v. Hoffman 808 Matt V. Hawkins 633, 644, 653 Matthews v. Delaware & Hudson Canal Co. 108, 387 V. Dixey 696, 697 Mattlage v. New York El. R. Co. 489, 514 Mauck V. State 441 Maxwell v. East River Bank 713 V. McAtee 379, 387, 393, 400, 403, 407, 416 May V, Cass County School Dist. 533 V. Prendergast 643 Mayberry v. Standish 449 Mayer's Appeal 639, 734 Mayhew v. Norton 479 Maynard v. Esher 557, 573 Mayo V. Newhoff 3, 7, 313 Mayor v. Jones 763 Mayor of New York v. Law 4, 33 Maypole v. Forsyth 715 Maysville v. Wilcox 164 Maysville, B. & S. R. Co. v. Ingram 489 Maywood Co. v. Maywood 432, 446, 447, 455 Mead v. Anderson 298 Meares v. Wilmington 593 Mebane v. Patrick 199, 269 Medford First Parish v. Pratt 164, 180 Medway Nav. Co. v. Romney 787, 749, 751 Meehan v. Barry 829 Meek v. Breckenridge 23 Meeker v. Puyallup 423 Meier v. Portland C. R. Co. 430, 455 Meinersv. St. Louis 449, 453 Meixell v. Morgan 767, 770 Mellen v. Western R. Co. 774 Mellor v. Pilgrim 763, 764 V. Spateman 637 Melvin v. Locks & Canals 197 V. Whiting 197, 198, 460 Memphis v. Lenore 531, 533 Mendell v. Delano 84, 48, 93, 94 TABLE OF CASES. References are to Sections. Mendenhall v. Klinck 63, 68 Mercer v. Pittsburg F. W. & C. E. Co. 549 Mercer Street, In re ^27 Merchants' U. Barb Wire Co. v. Chic, B. & Q. R. Co. 515 Mercy Docks Trustees v. Gibbs 596 Merrifield v. Cobleigh 114 V. Lombard 746, 756, 883 V. Worcester 737 Merritt v. Brinkerhofi 741 V. Parker 838 Mertz V. Dorney 165, 800 Merwinv. Wheeler 53, 54, 57 Meserve v. Meserve 101 Messenger v. Manhattan R. Co. 511, 513 Messick v. Midland R. Co. 71, 78 Messinger's Appeal 752 Metcalf V. Hart 63, 66, 74 Methodist Epis. Church v. Penn- sylvania R. Co. 365 Methodist Prot. Cliurch v. Laws 30 Metropolitan Asso. v. Fetch 873 Metropolitan Tel. & Tel. Co. v. Colwell Lead Co. 494 Metzger v. Holwick 18, 86, 39, 47 Meyer v. Lincoln 529, 530 V. Tacoma, L. & W. Co. 786 V. Tentopolis 540, 549, 552 Michel V. State 453 Michener v. Philadelphia 493 Mickel V. York 653, 715 Mickle V. Douglas 597 Middlefield v. Church MUls Knit- ting Co. 823 Middlesex Company v. McCue 769 Middleton v. Flat River Booming Co. 746 V. Gregorie 808 Middletown v. Newport Hospital 106 Mikesell v. Durkee 515 Milburn v. Cedar Rapids 521 Milhan v. Sharp 493 Miller v. Aubm-n & S. R. Co. 69 v. Brown 643 V. Corinna 540 V. Elliot 635 V. Garlock 160, 186 V. Lapham 788, 793, 835, 837 V. Laubach 763, 764, 766, 767 V. Miller 751, 754 V. Morristown 775 776, 778 V. Richards 160, 398 V. Scolfield 25 V. State 74 V. Washburn 30, 886, 403 Mills V. Hall 178, 531 Milne's Appeal 658, 687 Milwaukee v. Davis 449 Milwaukee v. Milwaukee & B. R. Co. 553 Milwaukee & St. P. R. Co. v. Arms 624 Miner v. Gilmour 745 Mineral Springs Manuf . Co. v. Mc- Carthy 400, 403 Minke v. Hopeman 755 Minneapolis Mill Co. v. Minne- apolis & St. L. R. Co. 69, 71 Minneapolis Western Ry. Co. v. Minneapolis & St. L. Ry. Co. 71, 72, 73, 76 Minor v. Deland 175 V. Wright 762 Mississippi & T. R. Co. v. Archi- bald 727, 746, 773 Mississippi Cent. R. Co. v. Mason 737 Mississippi Mills Co. v. Smith 755, 794 Missouri Inst. v. How 425 Missouri Pac. R. Co. v. Keys 732, 759 v. Renfro 773 MitcheU v. Bain 727, 738, 737 V. Bass 553 V. Dailey Main Colliery Co. 638 V. Met. El. R. Co. 511, 513 V. Mayor 606 V. New York 764 V. New York, L. E. & W. R. So. 774 V. Parks 164 V. Prepont 206 V. Rome 165, 573 V. Seipal 138, 139, 136, 139, 143, 154, 166, 354, 398, 835 Mithoff V. Hughes 673, 678, 680 Mittuaoht v. Slevin 696, 698 Moellering v. Evans 585, 604, 613, 630. 631 MoflEatt V. South Park Commis- sioners 425, 437 Moffitt V. Lytle 893 Mohr V. Parmelee 661 Moll V. McCauley 19, 33, 97 Molony v. Dixon 663, 665 Monaghan v. Memphis Fair Co. 845, 861 Monmouth Canal Co. v. Harford 179 Montgomery v. Gilmer 778 V. Santa Ana W. R. Co. 503, 515, 523, 524 V. Trustees 053 Moody V. McClelland 585, 604, 613, 620, 631, 633 V. Steggles 173 Moon V, KoUins 869 Mooney v. New York El. R. Co. 509 Moor V. Cary 54 Moore v. Chicago, B. & Q. R. Co. 739 xliii TABLE OF CASES. References are to Sections. Moore v. Crose 18, 28, 33, 33, 297 V. Hawk 425, 453 V. New York El. E. Co. 512 V. Payne 853 V. Rawsou 851, 853, 869, 870 ■V. Ray nor 645, 054 V. Roberts 420 V. Shoemaker 632, 649, 706 Moose V. Carson 237, 443, 549 Moran v. McClearns 775 Morgan v. Bowes 618 V. Des Moines & St. L. R. Co. 518 V. Railroad Co. 434, 425, 440 V. Mason 22, 23 V. Meuth 143, 147, 254, 315, 318, 835, 850 V. Moore 226 Morrell v. Chicago M. & St. P. R. Co. 515 Morrill T. Hurley 759 Morris v. Council Bluffs 732, 759, 776 V. Edgington 298, 315 V. Graham 60 Morris & E. R. Co. v. Newark 515 V. Prudden 547 Morrison v. Bucksport & B. R. Co. 759, 773 v. First Nat. Bank 209 V. Hinkson 490 V. King 31, 22, 30, 129, 141, 157, 263, 313 V. Marquardt 1, 435, 553, 057, 558, 560 Morrissey v. Chicago, B. & Q. R. Co. 759. 773 Morrow t. St. L. A. & T. R. Co. 525 Morse v. Aldricli 669 V. Benson 245, 332 V. Carson 531 V. Copeland 63, 69, 79, 80, 204, 847, 870 V. WilKams 164, 180 V. Ranno 438, 464 Mortimer v. Manhattan R. Co. 510, 513 Morton v. Moore 534 Morton Brewing Co. v. Morton 69 Moses V. Pittsburgh, Ft. W. & C. R. Co. 531 V. St. Louis Dock Co. 227 V. Sanford 78 V. Sectional Dock Co. 433 Mosier v. Caldwell 782 V. Vincent 457 Moss V. St. Louis, I. M. & S. R. Co. 773 Motes V. Bates 63, 315, 318 Mott V. Oppenheimer 668 Moulton V. Faught 101 V. Trafton 101 xliv Moulton V. Newburyport Water Co. 'J'SS, 748 Mounsey v. Ismay 178 Mount Adams & Eden Park Inc. R. Co. V. Winslow 503 Mowry v. Providence 486, 531 V. Sheldon 8^0 Moyer v. New York Cent. & H. R. Co. 550 Mudge V. Salisbury 88, 791 Mueller v. Fruen 160 V. St. St. Louis & Iron M. R. Co. 631 Mullen V. Strieker 557, 570, 573 Muller T. So. Pac. B. E. Co. 515 Mulligan v. Fitzpatrick 639 Mumford t. Oxford, W. & W. E. Co. 178 V. Whitney 69, 73 Mundy v. Duke of Rutland 598, 631 Munkres v. Kansas City St. J. & C. B. R. Co. 728, 729 Munn V. Worrall 101 Munsion v. Reid 124, 150, 153 Murchie v. Gates 808 Murdock v. Prospect Park & C. I. R. Co. 69, 71 Murly V, McDermott 644, 653 Murphv V. Chicago 521 V. Kelley 759 \. Lee 101, 230 V. Lincoln 304, 339 V. Welch 135, 166 Murray v. Commissioners 490 V. Gibson 493 Murrell v. Boisblanc 683 V. Fowler 680 Musgrave v. Sherwood 633, 696. 698 Muskett V. Hill 52, 57, 64, 68 Mussey v. Union Wharf 25, 843 Muzzarelli v. Hulshizer 556 Myer v. Hobbs 585, 604, 618, 619, 628 Myers v. Birkey oO V. Catterson 563 V. Dunn 215, 298, 314, 315, 819, 324, 355 V. Gemmel 557, 570, 572, 573, 693 Nalle V. Paggi 661, 667, 674, 679 Napa V. Ho-wiand 444 Napier v. Bulwinkle 578, 604, 606 Nash V. Kemp 687, 691, 696 V. New England L. Ins. Co. 865, 889 V. Paden 287 National Commercial Bank v. Gray 651, 687, 691, 697 National Exch. Bank v. Cunning- ham 263, 313 TABLE 01? CASES. References are to Sections. National Prov. Plate Glass Ins. Co. V. Prudential Asso. Co. 890 Neale v. Seeley 806 Nealley v. Bradford 775 Negus V. Becker C51, 696, 697, 699, 719 Nellis V. Munson 1, 16, 80, 120 Nelson v. Jenkins 395, 457, 465 V. MoEwen 686 V. Madison 444 V. Nelson 180, 283 Nettle V. New York El. R. Co. 510 Nettleton v. Sikes 69 Xevins v. Peoria 766, 775 New Albany v. Williams 427 New Albany & S. R. Co. v. Peter- son 782 New Brighton v. Piersol 593 V. United Pres. Church 593 Newcomb v. Royce 86 Newcomen v. Coulson 877, 815 Newell V. Minneapolis, L. & M. R. Co. 503, 516 V. Sass 880, 886 Newhall v. Ireson 754 Newhoff V. Mayo 93, 216, 217 335 New Ipswich Factory t. Batch- elder 136 Neiv Jersey Zinc & Iron Co. v. Morris Canal & B. Co. 311, 313 V. New Jersey Franklinite Co. 597 Newkirk v. Sabler 482 Newman v. Met. El. R. Co. 510 V. NelUs 22, 23, 328 New Orleans v. United States 430 New Orleans, S. F. & L. R. Co. v. Delamore 515 Newport & Cincinnati Bridge Co. V. Foote 596 New River Co. v. Johnson 783 New Salem v. Eagle Mill Co. 534 New Westminster v. Brighouse 593 New Windsor v. Stowell 301 New York v. Mapes 878 New York & H. River R. Co. v. New York 515 New York & N. E. R. Co. v. Board of Railroad Com'rs 306, 307 New York & N. J. Tel. Co. v. Dexheimer 487 New York Cent. & H. R. Co.. In re 383, 515 New York, C. & St. L. R. Co. v. Randall 65 V. Speelman 737 New York Elevated Co. , In re 519, 536 New York El. R. Co. v. Fifth Nat. Bank 510, 513, 536 New York L. Ins. Co. v. Milnor 298, 384 New York Nat. Bank v. Met. El. R. Co. 506, 508 New York Rubber Co. v. Rothery 751, 754 Niagara FaUs & W. R. Co., In re 16 Niagara Falls Suspension B. Co. V. Bachman 248, 444, 449 Nicholas v. Chamberlain 125, 137, 149, 151, 15.), 811 NiohoUs V. Wentworth 160, 164, 186, 269, 377 Nichols V. Ann Arbor & Y. R. Co. 499, 503, 508, 504, 515 V. Aylor 194 V. Chamberlain 133 V. Duluth 585, 593 V. Luce 154, 395, 298, 803, 804, 314, 315 317, 337, 338, 339, 331 384 V. New England Furniture Co. 313 Nicholson v. Gitchell 889 V. New York & N. H. R. Co. 515, 517 V. Stockett 553 Nicklas v. Keller 227, 229 Nicklin v. Williams 627, 628, 876 Nicks V. Chicago, St. P. & K. C. R. Co. 515 Nicoll V. New York & E. R. Co. 841 Nield V. London & N. W. Ry. 729 Nininger v. Norwood 762, 880 NitzelJ V. Paschell 863, 864 Noble V. St. Albans 776 Noblesville v. Lake Erie & W. R. Co. 455 Nolan V. Mendere 664 Noonan v. Albany 764, 775 V. Lee 334 Norcross v. James 23, 669 Norfolk City v. Chamberlaine 531 Normille v. Gill 687, 691 Norris v. Baker 177 Norton v. London & N. W. R. Co. 579 V. Volentine 797, 808 Northam Bridge Co. v. London Ry. 421 North Beach & M. R. Co.'s Ap- peal 80, 515 North Eastern Ry. Co. v. Cross- land 605 North Eastern R. Co. v. Elliot 602, fi05 Northern Pao. R. Co. v. Spokane 445 North Vernon v. Voegler 775 Norway Plains Co. v. Bradley 741, 754 Novotny v. Danforth 610, 613 Nowlin v. Whipple 78, 160, 180, 269, 283 xlv TABLE OF CASES. References are to Sections. Noyes v. Hemphill 99, 873 V. Ward 433, 446 Nudd V. Hobbs 54 Nunnelly t. Southern Iron Co. 65, 6^ 68, 80, 87, 204 Nute V. Boston Co-Op. Build. Co. 829, 830 Nuttall V. BraoeweU 745, 753, 799, 808 Nye V. Clark 457, 880 Oakley v. Stanley 21 Oat V. Middleton 647 O'Brien's Appeal 282, 284 O'Brien v. Flynn 251 V. Norwich & W. R. Co. 543 7. Philadelphia 593, 595 V. St. Paul 593, 764, 765, 769, 775 V. Schayer 338 Ocean Grove C. M. Asso. v. Asbury Park 782, 786 O'Connell t. Bowman 427, 433, 449, 454, 467 V. East Tenn., V. & G. R. Co. 729, 732, 734 O'Connor v. Fond du Lac 759 V. Nova Scotia Tel. Co. 494 V. Pittsburg 593, 595 O'Daniel v. Baker's Union 645 V. O'Daniel 160, 186, 286, 296 Odd Fellows' Hall Asso. v. Hegele 632, 651, 706 Odiorne v. Lyford 741 V. Wade 457 Ogburn v. Connor 762, 764 Ogden V. Grove 306, 315, 318 V. Jennings 29, 840 V. Philadelphia 593, 595 Ogg V. Lansing 533 Ogle V. Phila. W. & B. R. Co. 440 Ohio & Miss. R. Co. v. Elliott 201, 800 V. "Wachter 772 Okeson v. Patterson 268, 269, 282 Olcott V. Thompson 832 Old Colony R. Co. v. Miller 307 Oldstein v. Fireman's Build. Asso. 573, 637, 647, 687, 689, 696 O'Linda v. Lothrop 327, 237, 241, 419. 431 Olive V. State 531 Oliver v. Dickinson 22, 298 V. Hook 24, 147, 166, 185, 354, 265, 257, 398, 303, 314, 334 V. Lockle 807 V. Pitman 154, 221, 354, 316, 318 Olmstead v. Abbott 78 Olmsted v. Loomis 791, 884 Olney V. Fenner 163,186 V. Wharf 521 xlvi Olson V. St. Paul, Minn. & Man. R. Co. 63, 69, 764, 768, 774 Omaha & N. P. R. Co. v. Janecek 515, 538 Omaha & R. V. R. Co. v. Rickards 160, 390 V. Rogers 515 Omaha So. R. Co, v. Beeson 553 Omerod v. Todmorden Joint Stock Mill Co. 746, 753, 754 O'Neal V. Sherman 313, 383, 384, 486 One Hundred and Sixteenth Street, Matter of 306, 337, 435, 433 O'Neil V. Blodgett 185 Oneil V. Harkins 585, 604, 613, 615 O'Neill V. Breese 104, 571 Onley v. Gardiner 165 Onset St. R. Co. v. County Com- missioners 488, 499, 515 Onstott V. Murrav 439, 453, 457 Onthank v. Lake Shore & M. S. R. Co. 83, 337, 342, 344, 793, 836, 828 Opening of Beach Avenue, Matter of 437, 449,451 Opening of Brooklyn St. , In re 433 Ojjening One Hundred and Six- teenth Street, In re 206, 237, 425, 433 Opening Eleventh Avenue, Matter of 227,331,242 Opening Pearl St. , In re 430 Ordway v. Canisteo Village 714 Orena v. Santa Barbara 531 Orleans v. United States 432 Orman v. Day 647, 652, 708, 709 Ormsby v. Pinkerton 141, 799 O'Rorke v. Smith 126, 143, 147, 154, 355, 315, 316 Orr V. O'Brien 535, 536 Orr Ewing v. Colquhoun 885 Osborn v. Wise 398, 399, 300, 346, 347, 816, 831 Osborne v. Johnston 868 Oshkosh V. Mil. & L. W. R. Co. 889 Osten V. Jerome 301, 764, 799 Ostrom V. San Antonio 529 Oswald V. Grenet 331, 243 V. Wolf 16, 33, 47, 80, 398 Ottawa V. Yentzer 4j5, 433, 434, 438, 439, 465, 483 Ottawa Gas Light Co. v. Graham 782 Ottumwa Lodge v. Lewis 601 Outerbridge v. Phelps 30, 102, 136. 141, 143, 151, 354, 693 Outram v. Maude 166 Overdeer v. Updegraff 141, 147 365 Overton v. Sawyer 763 Owen V. Field 1, 14, 34, 43, 49, 63, 863. 865, 866 TABLE OF OASES. References are to Sections. Owena v. Crossett 294, 395, 457, 465 Pacific P. Tel. Cable Co. v. Irvine 494 Paddock v. Somes 764 Page V. Waring 511 Paige V. Rocky Ford Canal & S. Co. 735 Paine v. Boston 573 V. Chandler 126, 138, 139, 130. 157, 316, 693, 784 V. Partrich 543 V. Woods 753 Palatine v. Kreuger 490 Palfrey v. Foster 853 Palmer's Case 52 Palmer v. Angel 791 V. Evang. Bap. Benev. Soc. 704 V. Fletcher 137, 155, 555, 563 V. O'Donnell 775 V. Palmer 334, 298, 309, 315, 327, 330, 334, 335 V. Silverthorn 619 V. Waddell 727, 730. 766 T. Wetmore 557, 570, 573, 573 V. Wright 164, 198, 269 Palmers' Private Road 448 Panton v. Holland 585, 604, 613, 620, 633 Panton Turnpike Co. v. Bishop 478 Pappenheim v. Met. El. R. Co. 514, 537 Paquet v. Mt. Tabor St. R. Co. 533, 524 Para Rubber Shoe Co. v. Boston 745 Parish v. Kaspare 22, 63, 78, 86, 160, 164, 179, 368, 369 Parke v. Seattle 593 Parker v. Atchison 734, 777 V. Bennett 23, 35, 315 V. Boston & Maine R. Co. 596, 783 V. Foote 160, 164, 165, 186, 369, 557, 570, 573, 863 V. Framingham 337, 245, 246, 529 55^ V. Griswold 754^ 877 V. Hotchkiss 165, 741 V. Mitchell 371 V. Nightingale 94, 106, 108, 109 V. St. Paul 536, 537 V. Smith 337, 337, 341 V. Winnipiseogee 884 Parkins v. Dunham 849, 863 Parks v. Bishop 391, 292, 293 V. Newburyport 759, 805 Parrot v. Cincinnati 515 Parsons v. Johnson 24, 129, 150, 228. 354, 357, 815, 835 V. Spencer 264 Patridge v. Gilbert 649, 651, 687, 696 708, 709, 713, 715, 840 V. Lyon 712 V. Scott 604, 606, 609, 620, 625 Paterson & P. H. R. Co. v. Grundy 488, 493, 503 Patneaud v. Claire 763 Patoka Tup. v. Hopkins 775 Patten v. New York El. R. Co. 531 Patterson v. People's Nat. Gas Co. 435 V. Phil. & R. Co. 391 Pattison v. Gilford 886 Patton V. State 463 V. Western Carolina Educ. Co. 389 Paul V. Carver 540, 549, 553 Pawlet v. Clark 423 Payne v. Kansas & A. Val. R. Co. 486 Pearl Street, In re 430 Pearne v. Coal Creek, M. Co. 301, 303, 304, 313, 314, 315, 338 Pearsall v. Eaton County 543, 549 V. Post 54 Pearson v. Allen 347, 349, 544 V. Spencer 354, 263, 398, 303, 327, 330, 331, 384 Peck V. Conway 2, 34, 93, 110, 118 V. Goodberlett 746, 759, 764, 767 V. Herrington 730, 762, 767 V. Roe 582 Peddicord v. Baltimore, C. & E. Pass. R. Co. 499 Peers v. Lucy 58 Pegram v. N. Y. Elev. R. Co. 888 Peirce v. Boston & L. R. Co. 383 Pella V. Scholte 529, 533 Pellissier v. Corker 210 Pelton V. East Cleveland R. Co. 503 Pennington v. Brinsop Hall Coal Co. 754, 755, 756 V. Willard 435 Pennoyer v. Saginaw 775 Pennsylvania Coal Co. v. Sander- son 756, 766, 770 Pennsylvania Company v. Plotz 438, 449 V. Stanley 518, 519, 530 Pennsylvania R. Co. v. Angel 756 V. Braddock Elev. R. Co. 503 v. Duncan 506, 515 V. Freeport 381, 473 V. Hulse 283 V. Jones 141, 364, 365 V. Miller 746, 750, 751 V. Montgomery County P. R. Co. 486, 499, 505 V. National Docks, etc., Ry. Co. 884 xlvii TABLE OF CASES. Referenees are to Sections. Pennsylvania R. Co. v. Thompson 515 Pennsylvania S. V. R. Co. v. Walsh 515 V. Zeimer 515 Penny & S. E. R. Co., In re 578 Penny Pot Landing v. Philadel- phia 531 Penruddock's Case 771 Pensacola & A. R. Co. v. Jackson 526 Pentland v. Keep 119, 160, 470 People V. Canal Board 804, 610, 613 V. Cunningham 178 V. Dreher 423, 425, 432, 454 V. Eel River & E. R. Co. 433, 445 V. Fort Wayne & E. R. Co. 499 v. Kellogg 454 V. Kerr 499, 515, 531 V. Kingman 430 V. Livingston 470 V. Loehf elm 449, 453 V. Marin Countv 424, 435, 453, 455, 464, 552 V. Osborn 438, 468 V. Pope 531 V. Reed 425, 430, 449, 454 V. Thompson 498 V. UnderhiU 237, 241, 243, 430 449, 463 Peoria v. Johnston 456, 539, 535, 538 Percival v. Hughes 730 Perkins v. Moorestown & C. T. Co. 487 Perley v. Chandler 478, 492 V. Langley 54, 82 V. Marshall 746 Pernam v. Wead 398, 311 Perrin v. Garfield 5, 31, 164, 796 Perry v. New Orleans, M. & C. R. Co. 515 V. Snow 369 Peter v. CasweU 807, 808 Peters v. Little 191, 295 Peterson v. Machado 308 V. MoCuUough 369 Petition of Third Avenue R. Co., Matter of 501 Pettee v. Hawes 101 Pettibone v. Hamilton 435 V. Purdy 552 Pettigrew v. Evansville 759, 764, 766, 775, 881 Pettingill v. Porter 32, 29, 354, 255, 308, 316 Pew V. Buchanan 678, 680 Peyton v. London 610, 613, 616 V. Mayer 633, 652 V. St. Thomas's Hospital 612 V. Shaw 437 Pfeiffer v. Brown 766 xlviii Pffeifer v. Matthews 666 Phelan v. Brady 511 Phelps V. Nowlen 579, 759, 783, 783 Pheysey v. Vicary 166, 254, 315, 831 Philadelphia v. Philadelphia & R. K. Go. 531 V. Springarden 737, 740, 747 V. Thomas 453 V. Wright 593 Philadelphia & R. R. Co. v. Potts- ville Water Co. 737, 750 Philadelphia, W. & B. R. Co. v. Davis 762, 774, Philbrick v. Evving 23, 25 Phillips v. Bordman 718 V. Day 438 V. Dressier 406, 407, 413 V. Dunkirk, W. & P. R. Co. 515 V. Halliday 11 V. Phillips 141, 148, 157, 265 V. Rhodes 5, 10, 28, 87 V. Sherman 746 V. Thompson 85 Phinizy v. Augusta 775 Phipps V. Johnson 825 V. State 60 V. West Maryland R. Co. 515 Phoenix Ins. Co. v. Continential Ins. Co. 110 Piokard v. Colhns 579 V. Smith 619 Pickering v. Noyes 57 V. Rudd 177 Pico V. Colimas 814 Pierce v. Cleland 141, 263, 312 V. Cloud 162, 186 V. Drew 490, 494, 499 V. Dyer 601, 709, 840, 841 V. Keator 1, 3, 18, 49, 51, 52, 80 V. Kinney 735 V. Lemon 687, 695, 724 V. Musson 717 V. Selleck 398, 806, 315, 384, 885 V. Travers 804 Pierpoint v. Harrisville 430 Pierre v. Fernald 165, 573 Pierrepont v. Barnard 63, 75 Piggott V. Shatton 235 Pile V. Pedrick 657 Pillsbury v. Alexander 480, 446 V. Augusta 540 V. Brown 464, 589 V. Moore 787, 863 V. Morris 668, 674 Pingree v. McDuffie 398, 806, 314 Pinkum v. Eau Claire 38, 106, 109 Pinnington v. GaUand 398, 304, 806 Piper V. Connelly . 334 Pitkin V. Long Island R. Co. 80, 113 Pitts V. Baltimore 228, 425, 427 TABLE OF CASES. Referenees are to Sections. Pitts V. Lancaster Mills Pittsburg, Ft. W. & C. R. Co. v. Reich Pittsburgh, M. & Y. R. Co. v. Common wealth Pitzman v. Boyce Pixley V. Clark Plant V. James Piatt V. Eggleston V. Johnson V. Milford Plimmer v. Wellington Plimpton V. Converse Pollard V. Barnes Polly V. McCall Poison V. Ingram Pomeroy v. Mills Pomfret v. Ricroft 738 530 531 69, 181 783 24. 259 648, 668, 678, 680 741 517 85 163, 185, 186, 254, 279, 288, 289, 294, 835 putt V. Cox 245 Plumb V. Grand Rapids 455 Plummer v. Sheldon 440 V. Sturtevant 775 Polden V. Bastard 143, 144, 154, 254, 259 187, 189 160, 164 849, 865, 867 457, 478, 487 300, 306, 348, 483 821, 822 Pomfrey v. Saratoga Springs 425 Pomroy v. Granger 594 Pond V. Met. El. R. Co. 506, 526, 565 Pontiac v.Carter 775 Pool V. Lewis 737 Poole V. Huskinson 434, 443 Pope V. Devereux 374, 395, 538, 541, 845, 846, 847, 863, 869, 870 V. Henry 78 V. O'Hara 840, 863 V. Union 449 Popplewell V. Hodkinson 603 Porter v. Durham 763, 764, 799 V. North Missouri R. Co. 523 Post V. PearsaU 1, 89, 41, 49, 52 54, 58, 80, 343 Postlethwaite v. Payne 160, 163, 195 Potter V. Chicago & N. W. R. Co. 63,69 V. Howe 785 V. Iselin 231, 237 V. White 647, 711 Pottstown Gas Co. v. Murphy 757 ~ 43 642 586 164, 193, 193, 194 244, 547 557, 560, 573 85 537 398, 300, 343 Pratt V. Buffalo City R. Co. 335, 565 V. Des Moines N. W. R. Co. 73 PouU V. Mockley Poultney v. Depkin Pountney V. Clayton Powell V. Bagg V. Bunger V. Sims V. Thomas Power V. Watklns Powers V. Harlow Pratt T. Lamson V. Sweetser Preble v. Reed Preissv. Parker Prentice v. Geiger Prescott V. White V. Williams Preston v. Hull V. Navasota Prewittv. Graves Price V. Bayless V. Lien V. McConneU V. Plainfield 738, 743, 791 863, 869 31, 123, 129, 186 647 160, 751, 755, 794 799, 808, 814, 822, 831 814 759 430 160 354 636 697 331, 430, 486, 440, 449, 454, 457, 531 374 64, 68, 69 775 435, 426, 442, 449 487 597 443 47 303, 814, 315 435, 433 V. Wilbourn Prince v. Case Princeton v. Gieske V. Templeton Princeville v. Auten Pringle v. Vesta Coal Co, Pritohard v. Atkinson Private Road, Case of Proctor V. Hodgson V. Lewiston Proprietors of Locks & Canals v. Nashua & L. R. Co. 212, 854 Proprietors of Mills v. Braintree Water Supply Co. 785, 881 Providence Tool Co. v. Corliss Steam Engine Co. 143, 147, 148, 154, 164, 265 Prowattain v. Philadelphia 303, 306, 308 Prouty V. Bell 429 Prudden v. Morris & E. R. Co. 243 Publicans' Signboards 172 Pugh V. Wheeler 741 Purdy V. Chandler 391 Puryear v. Clements 160, 832, 881 Putnam v. Bowker 289 Putzel V. Drover's & Mech. Nat. Bank 646, 696, 702, 713 Pye V. Mankato 775 Pyer v. Carter 125, 127, 142, 149, 150, 157 Pyle v. Richards 728, 737, 764 Quarman v. Burnett 619 Queen v. Chorley 870 Queen v. United Kingdom T. Co. 480 Quicksale v. Philadelphia 430 Quincy v. Jones 270, 283, 523, 595, 604, 615, 620 Quinn v. Anderson 433 V. Morse 641, 647, 649, 696, 697 Race V. Ward Radcliff V. Mayor w xlix 55 585, 595, 604 TABLE OF CASES. References are to Sections. Radcliffe v. Brooklyn 550 Eafferty v. Cent. Traction Co. 499, 500, 501, 503 Railroad Co. v. Bingham 499, 503, 515, 531 V. Schurmeier 446, 486, 515 Railway v. Mossman 160, 774 Railway Company v. Laurence 515 V. Telegraph Asso. 497 Raleigh & A. A. L. R. Co. v. Wiclrer 769 Ramirez v. McCormick 315 Ramsden v. Dyson 85 Ramthun v. Halfman 437, 451 Randall v. Chase 19, 38, 304, 365 V. Jacksonville Street R. Co. 499 V. Latham 93 V. McLaughlin 138, 136, 139, 143 V. Sanderson 557, 559, 573 V. Silverthorn 132 Eangeley v. Midland R. Co. 3, 33, 81, 158, 423 Ranscht v. Wright 237, 228 Ransom v. Citizens' R. Co. 499 Rarick v. Smith 737 Raritan Water Power Co. v. Veghte 69, 869 Rathke v. Gardner 764, 775 Rathman v. Norenberg 476 Rauenstein v. New York, L. & W. R, Co. 519, 520 Rawson v. Bell 78, 643, 667 Rawstron v. Taylor 726, 781, 782, 805, 807 Ray V. Fletcher 200, 803 V. Lynes 573 V. Sweeney 573 Reading v. Althouse 808 Rector v. Keech 656 Redemptorists v. Wenig 98, 360 Redman v. Forman 783 Redwood County v. Winona & St. Peter L. Co. 529 Reed v. Birmingham 430, 531, 544 V. Cheney 764 V. Northfield 457 Reformed Church v. Schoolcraft 543 Regan v. Boston Gas Light Co. 30, 333, 337, 247 Regina v. Met. Board 783 Reichenbach v. Washington Short Line Ry. Co. 212, 844, 856 Eeichert "v. St. Louis & S. F. R. Co. 515 Raid V. Board of Education 430, 447 Reilly v. Booth 14, 378 V. Racine 530, 535, 536, 537 Reimer v. Stuber 198, 199, 268, 287 Reiners v. Young 148, 153 1 Reining v. New York, L. & W. R. Co. 521 Raise v. Enos 32, 47, 860 Rensselaer v. Leopold 519, 548 Rennyson's Appeal 557, 560, 573 Requa v. Rochester 439 Rerick v. Kern 7 7, 78 Rex V. Cross 17S V. Leake 445 Rexf ord v. Marquis 390, 360, 885, 387, 389 Reynolds v. Fargo 708 Rhea v. Forsyth 304, 884 Rhoads v. Davidheiser 763, 764 Rhodes v. Cleveland 775 V. McCormick 601 V. Otis 78 V. Whitehead 164, 178, 737, 870 Ribordy v. Pellachaud 160 Ricard v. Williams 160 Rice V. Evansville 775, 778 V. Flint 775 V. Roberts 73, 80, 643 Richard v. Hupp 164, 165 V. Scott 625 Richards v. Attleborough Branch R. Co. 304, 314, 321, 335 V. County Commissioners 463 v. Rose 306, 601, 605, 607, 649 V. Northwest Prot. Dutch Church 11 Richardson v. Bigelow 829, 873 V. Clements 837 V. Dallas 453 V. Levee Commissioners 773 V. McNulty 850 V. Palmer 101, 209 V. Pond 10, 200, 291, 293, 415, 573 V. Tobev 668, 673, 680, 681, 683, 683 V. Vermont Cent. R. Co. 585, 588, 596, 630 Richart v. Scott 604, 606, 630, 625 Richmond v. Poe 539 Richmond & D. R. Co. v. Durham & N. R. Co. 69, 71, 74 Richter v. Irwin 80 Ricker v. Kelly 69 Rider v. Smith 831 Riehle v. Heulings 863 Rigby V. Bennett 585 Righ'tsell V. Hale 141, 264, 837 Rigney v. Chicago 515, 519, 593 V. Tacoma L. & W. Co. 729 737, 748, 881 Riley v. Stein 327, 237 Rindge v. Baker 642,' 668 Risien v. Brown 78, 86 Ritchie v. Kansas, N. & D. R. Co. 444 TABLE OF CASES. References are to Sections. Ritger v. Parker 1, 32, 23, 49, 645, 836 Riverdale Park Co. v. Westcott 814 Riviere v. Bower 584 R. J. Gunning Co. v. Cusack 10 Roake v. Amer Tel. Co. 494 Roanoke Inr. Co. v. Kansas City & S. E. R. Co. 842, 856, 863, 864 Roath V. DriscoU 781, 782, 783, 803 Robb V. Carnegie 756 V. Hannah 885 V. Lagrange Village 730, 755 Robbins v. Borman 391 Robert v. Thompson 18, 26 Roberts v. Columbia G. & S. T. Turnpike Co. 444 V. Haines 589, 591, 597 V. Hunt 453 Y. Karr 327, 231, 237, 241, 433 V. Read 627 V. Roberts 814, 817, 821, 837, 828, 839 V. Stephens 344 Robertson y. Coal Co. 316, 597, 598, 599 Robeson v. Pettenger 573 Robinson v. Black Diamond Coal Co. 756 V. Clapp 177, 304, 557, 558, 560, 573 Y. Crescent City Mill Co. 370 Y. Kilvert 568 V. Lord Byron 794 V. Missisquoi R. Co. 211, 385 Y. Raih-oad Co. 424 Y. Shanks 727, 729, 746 v. Thrailkill 22, 78, 80, 86, 119, 120, 123, 398 Robson Y. Whittingham 885 Roby Y. New York C. & H. R. Co. 854, 869 Rochdale Canal Co. v. King 85 V. Radcliffe 281 Roche Y. Ullman 668, 677, 686 Rochester Electric Light Co, v. Rochester Power Co. 160, 171, 385 Rochette v. Chic. M. & St. P. R. Co. 518, 543 Rodgers v. Parker 237, 237, 247, 249, 365 Roe Y. Siddons 228, 258, 365 Rogers v. Bancroft 791, 794 Y. Brenton 54 Y. Cox 63, 66, 78 V. Duncan 395 Y. Jones 60 Y. Sawin 557, 573 Y. Sinsheimer 147, 153, 649, 654 Y. Taylor 604, 606 Rogers' Locomotive & Mach. Works V. Erie Ry. Co. 889 Rogerson v. Shepherd 160, 164, 298, 415 Roll V. Augusta 515, 776 Roman v. Strauss 886 Rome T. Omberg 595 Rome Gas Light Co. v. Meyerhardt 125 Roodv. Johnson 791 Root V. Commonwealth 458, 470 v. Wadhams 29, 65, 69, 164 Rose v. Bunn 10 Rosenberger v. MiUer 435, 453, 454 Ross Y. Mackeney 805 Y. Thompson 32, 295, 449, 457, 546 Roudet V. BedeU 687 Roundtree v. Brantley 104 Rowan v. Portland 227, 331, 335, 430, 539, 537 Rowbotham v. Wilson 597 Rowe v. Nally 833 Y. St. Paul, M. &M. R. Co. 759, 773 Rowell Y. Doggett 334, 389, 390 Rowland v. Bangs 435 Royal Bank v. Grand Junction R. Co. 889 Royce v. Guggenheim 570 Rozell v. Andrews 439 Ruch Y. Rock Island 841 Ruddiman v. Taylor 430, 455 Rude Y. St. Louis 518, 543, 546 Ruggles v. Lesure 69, 73 Rumill Y. Robbins 338, 331 Rummel v. New York, L. & W. R. Co. 231, 343, 344 Rummell v. I^amb 738 Rumsey v. New York & N. E. R. Co. 510 Rung v. Shoneberger 531 Russell V. Burlington 775 Y. Harford 143 Y. Heublein 34, 44, 94, 96 Y. Hubbard 69, 84 Y. Jackson 311, 317, 337, 337 Y. Napier 86, 294, 318, 334, 880 v. Shenton 755 V. Watts 85, 127, 129, 136, 138, 139, 154, 555, 564, 579 Rust Y. Low 175 Rutherford v. HoUey 764, 775 Ryan v. Mississippi Valley & S. I. R. Co. 160, 291 Rychlicki v. St. Louis 764, 775 Ryckman v. Gillis 589 Rylands v. Fletcher 755 Sabine v. Johnson Sachs Y. Cordes 800 30, 408 TABLE OF CASES. References are to Sections, Sadler v. Lee 786 St. Anthony Falls Water-Power Co. V. Minneapolis 753, 813 St. Charles County v. Powell 531 St. Helen's Smelting Co. v. Tipping 569 St. John V. Quitzow 553 St. John V. Sweeney 687, 691, 734 St. Louis V. Bell Tel. Co. 494 V. Gorman 434 V. Missouri Pac. R. Co. 531 St. Louis Nat. Stock Yards v. Wiggins Ferry Co. 69, 70, 71 St. Louis Transfer Co. v. St. Louis Merchants' Bridge Co. 515 St. Mary, Newington v. Jacobs 479, 485 St. Paul V. Chicago, M. & St. P. E. Co. 539 St. Paul, M. & M. R. Co. v. Minne- apolis 443 St. Vincent's Orphan Asvlum v. Troy 531 Salev. Pratt 56 Salida v. McKinna 453 Salisbury v. Andrews 340, 364, 398, 404, 566 Salvin v. North Brancepeth Coal Co. 569 Sampson v. Hoddinott 741, 746, 753, 877 Samuels v. Blanchard 790 San Antonio v. Sullivan 435, 437 San Antonio Rap. Tr. St. R. Co. t. Limburger 503 Sanborn v. Minneapolis 434 V. Rice 649 Sanderlin v. Baxter 139, 134, 147, 148, 150, 153, 154, 157, 880 Sanders v . Martin 648, 651, 703 Sanderson v. Pennsylvania Coal Co. 599, 755 Sanfordv. Covington 433 Sandwich v. Great Northern E. Co. 745, 750, 885 Sanfordv. Meridian 430 San Francisco v. Bradbury 531 V. Burr 430 V. Canavan 449, 450, 454 V. Scott 440, 450 San Leandro v. Le Breton 484, 531 Sanxay V. Hunger 35, 47, 398 Sapp V. Northern C. R. Co. 281 Sarcoxie v. Wild 437, 444 Sargent v. Ballard 164, 187, 197 V. Hubbard 372 V. Stark 800 Satterfield v. Rowan 755 Saucer v. Keller 78 Saunders v. Bluefield Water Works &Imp. Co. 748 lii Saunders v. Simpson 198 Savage v. Mason 661, 668, 669, 671, 683 Savannah A. & G. R. Co. v. Shiels 515 Savannah, Americus & M. R. Co. v. Buford 763, 774 Savannah & T. R. Co. v. Savannah 499 Sawyer v. Coolidge 101 Saxton V. New York El. R. Co. 510 Schaefer v. Marthaler 737, 731 Sohenley v. Commonwealth 242, 430 Scheuber v. Held 160 Schile V. Brokhahus 644, 645, 711, 715, 716, 720 Schlag V. Jones 729 Schlichter v. PhiUipy 737, 759 Schmidt v. Draper 531, 539 V. Quinn 306, 311, 316, 337, 334 Sohmitt V. San Francisco 430, 454 Sohmitzius v. Bailey 881 Schook V. Falls City 529 School Directors v. Goerges 531 School District v. Lindsay 69 V. Lynch 164, 186, 193, 289 Sohopp V. St. Louis 525 Schrymser v. Phelps 102 Schulenberg v. Harriman 841 Schulte V. North. Pac. T. Co. 547 Schultz V. Bower 585, 588, 604, 621 V. Byers 604, 610, 612, 613, Schurmeir v. St. Paul & P. R. Co. 515, 521 Schuylkill Nav. Co. v. Stoever 161 Schwerdtle v. Placer County 433, 434, 440, 442, 457, 459, 460 Schwoerer v. Boylston Market Asso. 106, 398, 566 Scioto Val. R. Co. v. Lawrence 521 Scott V. Beutel 131, 136, 153, 154, 166 V. Cheatham 449 V. McMillan 641, 661, 668, 674, 675 Scranton v. Phillips 597, 599 Scratton v. Brown 210 Screven v. Gregorie 315, 334 Sorives v. Smith 737 Scrymser v. Phelps 135, 136, 254, 257, 693, 835, 858 Searby v. Tottenham R. Co. 530 Sears v. Marshalltown R. Co. 499 Seavev v. Jones 22 Sebald v. Mulholland 661, 674, 696, 734 Secongast v. Missouri Pac. R. Co. 585, 874 Seegar v. Harrison 104 Seeger v. Mueller 237 238 Seeley v. Bishop 315, 334, 543 V. Brush 749 Seibert v. Levan 141 TABLE OF CASES. References are to Sections. Seidensparger v. Spear 69 Seifert v. Brooklyn 775 Selby V. Nettleford 349 Selden v. Delaware & H. Canal Co. 6i V. Jacksonville 547 Sellers v. Texas Cent. Ry. Co. 133, 139 Senhouse v. Christian 351, 875, 815 Sentoner v. Tees 770 Serff V. Acton Local Board 836 Sessengut v. Posey 721 Seymour v. Lewis 135, 141, 143, 166, 306 Shafer v. Wilson 610, 612, 616, 623 Shaffer v. StuU 465, 476 Shamleffer v. Council Grove P. Mill Co. 737 Shane v. Kansas City & C. B. R. Co. 759 Shanklin v. Evansville 430 Shannon v. Timm 105, 118, 120, 310 Shapine v. Shaw 305 Sharp V. Cheatham 676, 677 Sharp V. Mynatt 457 V. Ropes 94 Shaubut V. St. PaijI & Sioux City R. Co. 518, 543, 550 Shaughnessey v. Leary 184, 301, 303 Shaw V. Beveridge 11 V. Etheridge 141 V. Hitchcock 663 V. Oswego Iron Co. 737 Shawneetown V. Mason 776 Shea V. Ottumwa 456 Shearer v. Middleton 800 Shears v. Wood -746 Shed V. Leslie 791 Sheehan v. Flynn 759, 765, 768 Sheeks v. Erwin 160 Sheen v. Stothart 531, 537 Sheets v. Selden 21 Sheffield v. Collier 78 Shelby v. State 538 ShelbyviUe & B. Turnp. Co. v. Green 783, 734, 759 Sheldon v. Cole 763 Sheldon Bank v. Royce 665 Shell v. Kemmerer 578 SheUhouse v. State 383, 435, 438, 467, 469 Shepard v. Galveston, H. & H. R. Co. 86 Shepardson v. Perkins 808 Shepherd v. Watson 205, 346 Sherer v. Jasper 430, 531 Sherman v. Congdon 831 V. Hastings 464 Sherred v. Cisco 647, 653, 706, 709, 840 Shields V. Arnett 867 V. Ross 444, 449 V. Titus 33, 28, 30, 86, 104, 880 Shipman v. Beers 557 Shirk V. Can-oil County 457 Shirley v. Crabb 1, 838, 839 Shivers v. Shivers 415 Shoemaker v. Cedar Rapids, I. F. & N. W. Ry. Co. 368 v. Shoemaker 136, 143, 354, 693 Short V. Devine 406, 407, 414 V. Walton 160, 294, 295 Shotwell V. Dodge 754 Showalter v. Southern Kan. R. Co. 552 Shreveport v. Drouin 425 V. Walpole 531 Shrieve v. Stokes 604, 610, 612, 613, 614, 617, 620, 621 Shroder v. Brenneman 82, 390, 355, 860 Sibley v. Ellis 160, 288 V. Hoar 791 Siddons v. Short 605, 620 Sidwell V. Greig 60, 845 Silver Spring B. & D. Co. v. Wan- struck Co. 755 Simmons v. Church 123 V. Cloonan 126, 129, 157 V. CorneU 454, 581 V. Mumford 420 V. Sines 103, 398, 800, 334 V. Winters 22, 23 Simons v. Morehouse 78 Simpkins v. Rogers 69 Simplot V. Chicago, M. & St. P. R. Co. 531 V. Dubuique 535, 536 Simpson v. Mayor of Godmanches- ter 8 V. Wright 63, 73, 81, 164 Sims V. Chattanooga 581 V. Davis 287, 476 V. Frankfort 531 Sinai v. Louisville, N. O. & T. R. Co. 765, 772 Sixth Ave. R. Co. v. Met. El. R. Co. 510 Sizer v. Quinlan 409, 410 Skull V. Glenister 290, 360 Slack V. Lawrence 775 Slater v. Fox 735 Slatten v. Des Moines Valley R. Co. 531 Sleight V. Kingston 775 Sloat V. McDougall 31, 103, 131, 138, 139, 186 Smart v. Morton 589, 597 Smiles v. Hastings 837 Smith V. Adams 780, 878 V. Agawam Canal Co. 743 V. Alexandria 775, 776 V. Archibald 823 V. Bangs 529 liii TABLE OF OASES. Smith V. Bennett V. Blanpied V. Boston 544, V. Cent. Diet. P. & T. Co. V. City Council V. Cushing V. Darby V. East End St. E. Co. V. Flora Floyd 269 1.50 550 494 479 869 599 537 435, 436, 450 54 539, 340, 316, 604, V. GorreU 539, 535 V. Griffin 340, 316, 317 V. Hardesty 604, 625 V. Kenrick 756 V. Kinard 287 T. Ladd 90, 93, 215 V. Langewold 866 373, 296, 338, 330, 353, 830 227 163, 164, 179, 180, 193, 194, 799 V. Musgrove 160 T. New York & N. E. R. Co. 380, 307 434, 536 584 32, 47, 390, 360 V. Lee V. Lock V. Miller V. Osage V. Owen T. Porter V. Putnam 160, 164, V. Euss 165, V. San Luis Obispo 438, V. Simmons V. Smith 29 V. State T. Street R. Co. V. Tarbox V. Thackerah V. Upper Appomatox Co, V. Washington V. Wiggin V. Worn 19, 546 800 425 492 444 V. Youmans V. Young 281 Smithers v. Fitch Smyles v. Hastings 315, 337, 851, 863, Snarr v. Granite Curling & Skat- 150, 348 457, 470, 531 499 303, 310 590, 620 269 595 342, 855 87,400,401,851, 863 898, 810 233, 234, 880, 886 433 337, 331, 398, 314, 864, 865, 867, 870 Soule V. Passaic South Branch E. Co. v. Parker References are to Sections. 775 294, 465 South Carolina E. Co. v. Steiner 499, 515. 548 South Metropolitan Cem Co. v. Eden 355. 369, Southern Bell Tel. & T. Co v. Con. stantine Southern Pac. E. Co. v. Ferris V. Eeed Southwestern E. Co. v. Mitchell Sowers v. ShiflE Spackman v. Steidel Spalding v. Bemiss Spaulding v. Abbot V. Bradley V. Wesson Speir V. New Utrecht 449, 453, Spence v. McDonough Spencer's Case Spencer v. Kilmer 129 495 539 515 78 764 431 894 24, 25 449 453 165, 270, 388, 463, 470, 473 744, 747, 755 673 131, 133, 1.57 33, ing Co. Snell V. Levitt 118, 160, Snowden v. Wilas Snyder v. Penn. E. Co. V. Warford Sohn V. Cambern Solberg v. Decorah Solomon v. Vintner's Co, Solson V. Ingram Sorkin t. Sentman Souch V. East London E. liv 591, 631, 638 849, 854, 863, 863, 869, 870 78, 86, 506 208, 398, 303 244 537 649 863 169 420 606, Co. V. Metropolitan St. Ey. Co. 478 V. Point Pleasant & O. E. Co. 515, 521 T. Weaver 368, 387 Spensley v. Valentine 18, 39, 47, 55 Sperb v. Met. El. E. Co. 510 Spero V. Schultz 654 Split Eock Cable Eoad Co., In re 506 Spohn V. Dives 610, 618 Spokane Street E. Co. v. Spokane Falls 501 Spi-ague V. Snow 101 Springer v. Mclntyre 360 Springfield v. Connecticut Eiver E. Co. 515 V. Harris 879 Springfield Water Works Co. v. Jenkins 781, 783, 786 Sprow V. Boston & A. E. Co. 380, 457 Squier v. Townshend 674 Squire v. Campbell 333 Squires v. Pinkney 674, 675 Stacey v. Miller 288, 438 Stack V. East St. Louis 775, 776 Stafford v. Coyney 434 Staffordshire & W. Canal Nav. v. Birmingham Canal Nav. 381, 807 Stallard v. Cushing 880 Standard Bank v. Stokes 705, 713 Standen v. New Eochelle W. Co. 737 Standiford v. Goudy Standish v. Lawrence Stanford v. Lyon V. San Francisco Stange v. Dubuque Sanley v. Davenport V. New York El. : 166, 254 668, 681, 683 166 775 515 499 502 Co. 528 TABLE OF CASES. References are to Sections. Stanwood v. Maiden Staple V. Heydon Star V. Rookesby Stark V. Coffin V. Wilder Starkie v. Richmond 518, 550 318 175 98 78 395, 889 Starr V Camden & A. R. Co. 515, 516 V. People 425, 441, 465 State T. Atherton 539 V. Bayonne 445 V. Berdetta 531, 534, 539, 549 V. Birmingham 160, 440, 450 V. Bishop 466 V. Bradley 457 V. Brown 214 V. Bunker 457 T. Catlin 487 V. Crawford 60 V. Culver 531 V. Eisele 453 V. Elizabeth 518, 550 V. Fisher 438, 449, 453, 554 V. Green 437, 433, 457, 458, 461, 469 V. Gross 438 V. Hannibal & R. C. Gravel Road Co. 431, 478 V. Horn 476 V. Huggins 540 V. Hunter 457 V. Jacksonville Street R. Co. 499 V. Kansas City St. J. & C. B. R. Co. 450, 453, 457, 476 V. Keeland 457 V. Kent County 470 V. Laverack 486, 487 V. McCabe 42.5 V. McGee 465 V. Minneapolis & M. R. Co. 446 V. Mitchell 450, 457, 469 V. Morse 539, 536, 540 V. Nudd 425, 441 V. O'Laughlin 457 V. Peckham 539 V. Pettis 539 V. Proctor 457 V. Reesa 429 V. South Amboy 449 V. Strong 433 V. Suttle 866, 867, 868 V. Trask 430 V. Travis County 436 V. Tucker 283, 457 V. Walters 457 V. Walls 457 V. Welpton 457 V. Wilson 57 V. Wilkinson 335, 457 V. Young 438, 535 Stearns v. Janes 164, 179, 186, 383 V. MuUen 33, 34, 310, 290, 360 V. Richmond 585, 593, 604, 620 V. Richmond Paper M. Co. 200 Steel V. Grigsby 298 V. Portland 436 Steere v. Tiffany 855, 863, 870 Steffy V. Carpenter 163 Stehr V. Raben 681, 683, 686 Stein V. Burden 877 V. Dahm 852 V. Hauck 573 Steinaur v. Tell City 435, 449 Steinke v. Bentley 86, 141 Stephens v. Benson 86 V. Gordon 337 V. Hockemeyer 110, 160 Sterling's Appeal 478, 491, 505 Sterling Hydraulic Co. v. Williams 668 Sterricker v. McBride 255 Stetson V. Bangor 337, 342, 430, 531 V. Chicago & E. R. Co, 515 V. Curtis 106, 338, 340 V. Dow 337, 237 V. Faxon 543 Stevens v. Dennett 80, 119, 166, 179 V. Kelley 737 V. Nashua 457 V. New York El. R. Co. 509, 511 V. Orr 136, 254, 357, 265, 315 V. Shannon 529, 530, 553 V. Stevens 69, 787 V. Whistler 420, 479 Stevenson v. Chattanooga 478, 479, 487 V. Missouri Pac. R. Co. 533, 535 V. Stewart 391, 395 V. Wallace 1, 585, 604, 605, 606, 619, 840 Stewart v. Aldrich 663 V. Clinton 776 V. Frink 196, 470 V. Hartman 298, 303, 414, 448 V. Ohio River R. Co. 515, 525, 536 V. Stevens 69, 71, 80, 83, 84 Stickley v. Chesapeake & O. R. Co. 515, 526, 538 Stiles V, Hooker 800 Stillman v. White Rock Manuf. Co. 193, 194 Stniwell V. Foster 136, 139, 313, 315 Stilwell V. St. Louis & H. R. Co. 32, 109 Stimmel v. Brown 593, 604, 606, 613, 621 Stinson v, Fishel 764 Stockbridge Iron Co. v. Hudson 15 Iv TABLE OF CASES. References are to Sections. Stockport Highway Board v. Grant 823 Stocks V. Booth 11 Stockwell V. Couillard 101 Stoddard v. Filgur 78, 775, 799 Stokes V. Upper Appomattox Co. 164 Stokoe V. Singers 574 Stone V. Brooks 430, 439, 444, 450 V. Roscommon Lumber Co. 746 Storck V. Met. El. E. C. 511 Storm V. Barger 536, 543 Story V. N. Y. Elev. R. Co. 8, 17, 337, 242, 388, 488, 489, 506, 536, 565 V. Odin 557, 578 Stoudinger v. Newark 493 Stoughton V. Baker 533 Stout V. NoblesviUe & E. G. Road Co. 543, 546 Stowell V. Johnson 743 V. Lincoln 754 Stowers v. Postal T. Cable Co. 494 Strang v. Ryan 869 Street R. Co. v. Doyle 499, 515 Streyer v. Georgia So. R. Co. 525 Strickler v. Todd 162 Strohmeir v. Leahy 835 Strong V. Benedict 791 V. Brooklyn 343, 430 V. Makeever 443, 459 Stroyan v. Knowles 020 Stuber's Road 159 Sturges V. Bridgman 178 Sturr V. Beck 737 Stuyvesant v. Woodruff 147, 160, 254, 31.^), 317, 318 Suburban Light & P. Co. v. Boston 498 Suffield V. Brown 127, 136, 143, 148, 154 Sullivan v. Graffort 687, 688 V. Phillips 775 V. Ryan 136, 137 V. Zeiner 165, 587, 604, 606, 867 Summers v. State 441 Sumner v. Stevens 179, 182 V. Tilcston 179, 804 Sury V. Pigot 175 Susquehanna County v. Deans 531 Susquehanna Depot v. Simmons 492 Sutherland v. Jackson 227, 237, 242, 244, 431 Sutphen v. Therkelson 561 Sutro V. Manhatton R. Co. 510 Sutton V. GroU 395, .566 V. Montford 878', 885 Suydam v. Dunton 870 Swan V. Burlington 879 Swansborough v. Coventry 127. 139. 555, 559, 563 Ivi Swartz V. Swartz 77 Swazey v. Brooks 34 Sweatmau v. Deadwood 429 Sweeney v. St. John 573, 687, 691 Sweetlaud v. Olsen 22 Svvettv. Cutts 759,781,799 Swick V. Sears 101 Swift V. Coker 396 V. Goodrich 744 Swindon Water Works v. Wilts Canal 744, 748, 749, 751 Switzer v. Davis 636 Symmes v. Drew 310, 334 Tabor v. Bradley 149 Taggart v. Newport Street R. Co. 497, 503 V. Warner 78, 133 Talbott V. Thorn 80, 160, 383, 384, 386, 296 Tallmadge v. East River Bank 104, 440, 478 Tallman v. Met. El. R. Co. 510 Tampa Water Works Co. v. Cline 726, 737, 787, 786 Tanner v. Volentine 63, 69 Tapert v. Detroit G. H. & M. R. Co. 224, 244 Tapling v. Jones 574, 826 Taralilson v. Lime Springs 448 Tardy v. Creasy 1, 3, 107 Tarry v. Ashtoh 619 Tate V. Fratt 653, 696 V. Greensboro 479 V. M. K. & T. R. Co. 523 V. Ohio & Miss. R. Co. 331, 244 Tatumv. St. Louis 331 Taws V. Knowles 858 Tayler v. Waters 69 Taylor v. Bay City, St. R. Co. 515 v. Boulware 141 v. Brookman 886 V. Chic, M. & St. P. R. Co. 515 V. Commonwealth 531, 533 V. Dyches 47 V. Fickas 727, 732, 759 V. Gerrish 69, 73, 183 V. Hampton 187, 853, 855, 863 V. Hopper 231 V. Millard 49, 53, 64, 80 V. New York & Long Branch R. Co. 211 V. Philippi 430, 449, 529, 536 V. Townsend 311 V. Warnaky 298, 314, 322 V. Water Power Co. 461 V. Welch 783 V. Whitehead 383, 348, 481 , 483, 833, 831 Templeton v. Voshloe 764 TABLE OF CASES. References are to Sections. Tenant v. Goldwin 137, 563, 564 Tennessee & A. R. Co. v. Adams 521 Tennessee Coal, Iron & R. Co. v. Hamilton 755, 756 Terre Haute & L. R. Co. v. Bissell 344 Tei-ry v. Smith 791 Texas & N. O. R. Co. v. Sutor 86 Texas & Pac. R. Co. v. Durrett 75, 80 V. Rosedale St. R. Co. 499 Texas St. L. R. Co. v. Jari-eU 86 Texas West. R. Co. v. Wilson .160, 185 Thayer v. Arnold 175 V. Jar vis 66 V. New Bedford Railroad 544 V. Payne 129, 136, 150, 154. 814 Theohold v. Louisville, N. O. & T. R. Co. 515, 548 Thoemke v. Fiedler 63, 65, 68, 69, 80, 181, 304 Thomas v. Bertram 186 V. England 160, 164, 382, 389 V. Evans 890 V. Hill 743 V. Inter-County Street R. Co. 500 V. Junction City Irr. Co. 78 ■V. Marshfield 10 v. Owen 358, 365 V. Poole 339, 237, 249 V. SorreU 64, 74 V. Thomas 835, 836 Thompson v. Curtis 683 V. Easley 377 V. Gregory 69, 80 V. MoElarney 77 V. Manhattan R. Co. 514 V. Miner 355, 363, 298, 313, 315, 316 V. Uglow 814, 817, 830 Thomsen t. McCormick 446, 453 Thomson v. Curtis 680 V. Watcrlow 254, 259 Thorn v. Wilson 839 Thorndike v. WeUs Memorial Asso. 684 Thornton v. Louisville & N. R. Co. 472 V. Royce 685 Thorpe v. Brumfitt 35, 48, 383 Thurston v. Hancock 585, 604, 606, 615, 620 V. St. Joseph 446 Tibbetts v. Tibbetts 80, 101, 110 Tickle v. Brown 179, 389 Tiffany v. U. S. lUum. Co. 498 Tilbury v. Silva 62 Tillotson V. Smith 767, 875 Timm v. Bear 751 Tinges v. Baltimore 435 Tinicum Fishing Co. v. Carter 38, 39, 53, 58, 61 Tinker v. Forbes 16, 23, 80, 99, 111. 113, 553, 573, 580 Tinkham v. Arnold 799 Tipping V. Eckersley 886 Titus V. Boston 493 Tobey V. Moore 113 554 V. Taunton 337, 337, 347 Todd V. Pittsburg F. W. & C. R. Co. 443 V. Stokes 674 Toledo W. & W. R. Co, v. Morrison 774 Tolman v. Casey 160 Tomblin v. Fish 680 Toof V. Decatur 457, 467, 477 Toothe T. Bryce 125, 138, 129, 133, 136, 141, 143, 149, 151, 154, 155, 811 Tootle v. Clifton 160, 763 Topeka v. Cowee 457, 461 Torrance v. Conger 790 Torrey v. Scranton 775 Totel V. Bounefoy 191, 762, 809 Tourtellot v. Phelpa 790, 791 Town V. Faulkner 800 Towne v. Salentine 209 Townsend v. Bissell 160, 377 V. McDonald 800, 808, 863, 866, 879 Tracy v. Atherton 160, 161, 163, 163, 186, 199, 269, 389, 398, 303, 304, 314 Trafford v. The King 739 Traute v. White 634, 687, 691 Transylvania University v. Lexing- ington 543, 549 Transportation Company v. Chi- cago 488, 585, 588, 595, 604, 621 Transue v. Sell 234, 430 Traphagen v. Jersey City 493 Trask v. Ford 164 V. Patterson 398, 315 V. State 464 Treadwell v. Inslee 134, 164, 165, 798 Treat v. Bates 767 Trine v. Pueblo 449, 454 Troe V. Larson 889 Trout V. McDonald 783, 784 Trowbridge v. Brookline 596, 783 V. True 639, 878, 884, 886 Trower v. Chadwick 613, 616 Troy V. Cheshire R. Co. 536 V. Coleman 775 Trustees v. Hoboken 531 T. Lynch 106, 108, 110, 318 V. National State Bank 556 V. Youmans 759 Trutt V. Spotts 337, 234 Tucker V. Conrad 425, 437, 437. 449, 470 Ivii TABLE OF CASES. References are to Sections. Tucker v. Howard 365, 890 V. Jewett 166 V. Jones 23 v. Newman 771 Tudor Ice Company v. Cunning- ham 365 Tufts V. Charlestown 237, 337 Tunstall v. Christian 573, 588, 604, 605, 606 Turnbull v. Rivers 315, 317, 318, 320 Turner v. Dartmouth 775, 776, 778, 779 V. Fitchburg R. Co. 280 V. Hart 160, 164, 165, 201 V. Hebron 60, 61, 62 V. Reynolds 599 V. Ringwood Highway Board 479, 531 V. Spooner 578 V. Thompson 557, •'560, 578 V. Williams 289, 543 Turpin v. Dennis 880 Tuthill V. Scott 735, 737, 766 Tuttle V. Walker 93 Tutwiler v. KendaU 439 Twenty-ninth Street, Matter of 247, 430 Twibill V. Lombard & S. P. R. Co. 863 Tye V. Catching 743 Tyler v. Cooper 387, 389, 391, 853, 863. 869 V. Hammond 836 V. Wilkinson 186, 737, 741, 746, 879 Tyrringham's Case 53 Ulbricht v. Eufaula W. Co. 737, 745, 877, 885 Uline V. New York, C. & H. R. Co. 537, 550 Ulrick V. Dakota L. & T. Co. 585, 587, 588, 604. 610, 613, 620, 631, 623 Underwood v. Carney 18, 19, 32, 30, 385, 419 V. Stuyvesant 237, 246 Union v. Durkes 776, 778 Union Co. v. Peckham 430, 435, 455 Union Depot Co. v. Brunswick 518 Union Mill Co. v. Ferris 744 Union Pac. R. Co. v. Dyche 727, 737 Union Water Co. v. Crary 163, 186 United Land Co. v. Great Eastern R. Co. 373, 377, 385 United States v. Appleton 23, 33, 136, 129, 148, 327 V. Baltimore & O. R. Co. 74 V. Hoar 533 V. 111. Cent. R. Co. 447 V. Peachy 587, 615 Iviii Upper Ten Mile PI. R. Co. v. Braden 391 Vail V. Mix 160 Valentine v. Schreiber 23, 28, 36, 47, 81, 106, 863, 870 VaUey Falls Co. v. Dolan 806, 310, 815, 855 Van Amringe v. Barnett 553 Vanatta v. Jones 430 Vanderbeck v. Rochester 536 Vanderwiele v. Taylor 759, 764, 769 Van Home v. Newark P. R. Co. 499 50O Vannest v. Fleming 768 Van Rensselaer v. Albany & W. S. R. Co. 8, 105, 106 Van Sickle v. Haines 754 Vansyokel v. Tryon 687 Vanwinkle v. Curtis 880 Van Wycklen v. Brooklyn 785 VarwigT. Cleveland, C, C. & St. L. R. Co. 119, 132 Veale v. Boston 463 Veeder v. Relvea 366 Veghte v. Raritan W. P. Co. 863, 864, 865 Vermont Cent. R. Co. v. Hills 875 Vermont Village v. MiUer 446, 456 Vernon v. St. James 569 Vernum v. Wheeler 764 Verona Borough v. Allegheny Val. R. Co. 427 Viall v. Carpenter 303, 309, 810, 318, 884 Vicksburg v. Marshall 581, 538 Victor Min. Co. v. Morning Star Min. Co. 585, 604, 608, 613 Viliski V. Minneapolis 479 Vincennes v. Richards 775 Vinton v. Greene 830, 853 Virginia Canon T. R. Co. v. Peo- ple 431 Visalia v. Jacob 531 Vliet v. Sherwood 746, 798 Vogler V. Geiss 845, 846, 848, 849, 855 863, 869, 870 VoUmer's Appeal 687, 691, 734 Voorhees v. Burchard 10, 31, 27, Vossen v. Dautel 284, 298, 306, 317, 440, 465, 470 Wabash & E. Canal v. Spears 781 Wadsworth v. Tillotson 787, 744 749, 754, 794 Waffle V. New York Cent. R. Co. 759 767 Wager v. Troy Union R. Co. 503, 515, 516, 543 Waggeman v. North Peoria 437, 433 TABLE OF CASES. References are to Sections. Wagner v. Hanna 3, 3, 33, 39, 47, 48 V. Long 1. R. Co. 737, 759, 7«9 Wagnon v. Fairbanks 533 Wahle V. Reinbaoh 757 Wakefield v, Duke of Buccleuch GOO V. Newell 759, 776 Wakely v. Davidson 791 Walker v. Cavwood 478, 531 V. Cronin 783 V. Gerhard 30, 360 V. Gunner 11 V. Moses 533 V. Pierce 364, 375, 821, 823, 831 V. Stetson 683, 696, 700 V. Worcester 366 Wallace v. Drew 734, 881 V. Fee 552 V.Fletcher 160,164,199, 457, 460 V. Townsend 454 Waller v. Lasher 712 Wallis v. Harrison 69, 73, 80 Walsh V. Luburg 724 Walter v, Selfe 569 Walters v. Pfeil 610, 612, 613, 616 Waltman v. Rund 464 Walz V. Walz 33, 217 Wanger v. Hippie 272, 289 Ward V. Davis 443, 444 V. Farwell 24, 69, 80, 425 432, 485 V. Met. El. R. Co. 511, 845 V. Neal 573 V. Robertson 315,318 V. Warren 160, 164, 165, 186 269, 853, 863, 870 Wardle v. Brocklehurst 151 Ware v. Allen 746 v. Chew 570 V. Walker 814, 822 Warfel v. Knott 649 Waring v. Crow 850 V. Little Rock 439, 449, 457 463, 477 Warmack v. Brownlee 737 Warner v. Cushman 790, 791 v. Holyoke 538 v. Railroad Co. 837, 343 V. Rogers 647 V. Southworth 644 Warren v. Blake 136, 139, 142, 154, 337, 254, 255, 257, 298, 815, 885 V. Brown 444, 449 V. Grand Haven 490, 493 v. Jacksonville 164, 433, 439 449, 476, 477 V. Syine 108 V. Westbrook Manuf . Co. 789 Warshauer v. Randall 847, 851, 869 Washburn & Moen Co. v. Salis- bury 31 Washington Cemetery v. Prospect Park & C. I. R. Co. 531 Wason V. Pilz 434 Waterloo v. Union Mill Co. 539, 533 Waterman v. Conn. & Pass. Riv. R. Co. 767, 774 Waters v. Bay View 776 V. Lilley 53, 54, 57, 58, 60 Watertown v. Cowen 106, 235, 241 243, 551 Watkins v. Lynch 539 V. Reddin 533 V. Peck 159, 160, 163, 164, 179 185, 198, 460, 799 Watrous v, Blair 334 Watson V. Bioren 30 V. Chicago, M. & St. P. R. Co. 71, 73, 432, 443 V. Gray 632, 644, 652 V. Tripp 522 Watson Lodge v. Drake 613, 619 Watt V. Trapp 187, 371, 387 Watts V. Kelson 135, 137, 149, 154, 354, 260, 265, 315, 875 Waugh V, Leech 424 Wayne County v. Miller 454 Wayzata Village v. Great Northern R. Co. 530 Wead V. St. Johnsbury & L. C. R. Co. 764, 774 Weatherby v. Meiklejohn 808 Webb V. Bird 165, 576 V. Butler County 531, 539 V. Demopolis 531 V. Portland Manuf. Co. 737, 741 , 875, 879 V. Russell 673 Webber v. Chapman 162, 164, 460, 539 V. Gage 879, 880 V. Lee 58 V. Vogel 261, 362 Webster v. Holland 179 V. LoweU 273,461,467 V. Stevens 641,645, 649,651, 696, 711 Weddell v. Hapner 764 Weed V. Keenan 846 Weekly v. Wildman 55 Weeks v. McMillan 674, 675 Weeping Water v. Reed 480 Weidekin v. Snelson 764 Weigmann v. Jones 553, 690 Weill V. Baker 644, 651, 653 Weis V. Bell's Appeal 591, 592 V. Plymouth 775 V. Madison 737, 775, 776, 778 V. Meyer 843 lix TABLE OF CASES. References are to Sections. Weisbrod v. Chic. & N. W. E. Co. 430, 435 552 Weiss V. Oregon I. & S. Co. 73?', 746 V. South Bethlehem 425, 438, 457 "Welch V. Wilcox 371, 391, 404 Welcome v. Upton 52 Weld V. Brooks 279, 280, 457 V. Hornby 178 V. Nichols 661 Weller v. Smeaton 883 Wellman v. Dickey 209 Wells V. Garbutt 128, 136, 154, 157, 693, 789 V. Tolman 22, 223, 298, 343, 370, 376, 814 Welsh V. Taylor 855,861,863,865, 867, 870, 884 Wentlandt v. Cavanaugh 764 Wentworth v. Philpot 315 V. Poor 743 Werfelman v. Manhattan R. Co. 513 West V. Bancroft 490, 493 V. Fox River Paper Co. 738 V. Taylor 737, 729, 734 West Bellevue v. Huddleston 775 West Covington v. Freking 430, 552 West Cumberland I. & S. Co. v. Kenyon 771 West Jersey R. Co. v. Camden G. & W. R. Co. 503 Western v. MacDermott 104, 106 Western Granite Co. v. Knicker- bocker 573, 578 Western Lunatic Asylum v. Miller 539, 533 Western Nat. Bank's Appeal 153, 639, 645, 653 Western R. Co. v. Alabama Grand Tr. R. Co. 430, 464, 496, 515 Western Union T. Co. v. Guernsey & Scudder L. Co. 494, 498 V. Williams 494 Westlake v. Koch 543 Weston V. Arnold 632, 633, 687, 690, 703 Wetherell v. Brobst 23, 113, 554, 645 Wetmore v. Bruce 106, 108 V. Fiske 147, 813 V. McDougaU 454 Wetuppa Reservoir Co. v. Fall River 787 Weyl V. Sonoma Valley R. Co. 515 Weyman v. Ringold 644, 668 Weynand v. Lutz 331, 236 Whaler v.Ahl 743,740 Whaley v. Jarrett 866, 402, 406, 407 V. Stevens 33, 39, 33, 35, 39, 297 Whalley v. Lancashire &T. R. Co. 731, 774 Ix Whalley v. Tompson 354, 358, 885 Wharton v. Hannon 343 V. Stevens 731, 734, 764, 889- Wheatfield v. Grundmaim 435, 444, 457, 458, 461 Wheatley v. Baugh 573, 736, 781, 782, 783, 786, 805 V. Chrisman 787, 745, 746, 751, 799 Wheaton v. Maple 167, 225 Wheeldon v. Burrows 137, 186, 143, 154, 254, 264, 365 Wheeler v. Bedford 551 V. Black 834, 890 V. Clark 246, 374, 553 V. Gilsey 298, 315, 334 V. West 63 V. Wilder 793, 815 V. Reynolds 76 V. Worcester 767 Wheeling v. CampbeU 539, 538 Wheelock v. Noonan 880 Whetstone v. Bowser 781, 786 Whipple V. Fairhaven 775, 777 Whitaker v. Brown 90 White V. Bass 137, 306 V. Bradley 315, 339, 448, 557, 560, 573 V. Chapin 159, 161, 168, 186, 764, 799, 805 V. Chicago, St. L. & P. R. Co. 515 V. Crawford 34, 38, 43, 47, 90, 215, 868 V. Dresser 624 V. Eagle & P. Hotel Co. 3.54, 816 V. East Lake Land Co. 745 V. Flannigan 51& V. Manhattan R. Co. 63, 69, 73, 80, 511, 845, 868, 870 V. Metropolitan R. Co. 869 V. New York & N. E. E. Co. 48, 90, 218, 315 V. North Western N. C. R. Co. 515 V. Sheldon 728, 759, 799, 805. V. Smith 327, 337 V. Spencer 382 V. Story 810 V. Tide-water Oil Co. 237, 341, 248, 365, 863, 88& V. Wiley 444, 461, 484 V. Yazoo 493 White's Bank v. Nichols 337, 430, 554, 852, 854, 868, 869, 870 White Bear v. Stewart 427 Whitehead v. Garris 787 Whitehouse v. Cummings 298, 804, 314, 815, 334 V. Fellows 638' TABLE OF CASES. References are to Sections. Whiting V. Gaylord 25, 29, 154, 165, 166, 641, 644, 730 Whitney v. Lee 30 V. Richardson 45, 787 V. Union E . Co. 92, 94, 106, 108, 110, 118 V. Wheeler Cotton MiUs 746 V. Willamette Bridge E Co. 767 Whitsett V. Union Depot & E. Co. 540 Whittenton Manuf . Co. v. Staples 823 Whittier v. Cooheco Manuf Co. 828 V. Winkley 308, 306, 324 Whit worth v. Berry 430 Wholey v. Caldwell 735 Wichita & C. E. Co. v. Smith 531 Wickersham v. Orr 78, 642, 648, 678 Wickham v. Hawker 52, 55, 57, 58, 59 Wiokliflfe v. Magruder 348, 442 Wjcks V. Thompson 425 Wier & Bell's Appeal 585, 680, 631 Wiggins V. Kirby 583 V. McCleary 327, 243, 863, 869, 370 V. Tallmadge 457 Wild V. Deig 448 WUder v. St. Paul 425, 428, 455, 863 V. Wheeler 39 WUkes V. Hungerford Market Co. 546 Wilkes-Barre's Appeal 457 Wilkes-Barre Gas Co. v. Turner 220 Wilkins v. Jewett 647 Wilkinson V. Proud 15 WUlard v. Cambridge 544, 546 Wille V. Bartz 407 Willey V. Norfolk So. R. Co. 159, 279, 535 V. People 449 Y. Thwing 803, 304, 306 Williamette Iron Works v. Oregon 488 Williams v. Barber 800 V. Boston Water Power Co. 235 V. Clark 403 V. City Electric St. R. Co. 502, 516 V. Hay 597, 599, 600 V. James 201, 292, 360, 362, 376 V. Kenney 590 V. Missouri Furnace Co. 631, 628 V. Morland 875, 885 V. Natural Bridge PI. Road Co. 478, 486 V. Nelson 160, 168, 164, 186 197, 863. 867, 870 V. N. Y. &. N. H. R. Co. 445 V. N. Y. Cent. R. Co. 479, 515, 516, 517, 889 V. Richards 727, 759 V. St. Louis 531 Williams v. Safford 298, 833, 348, 482' 484, 814, 822, 831 V. Smith 435 V. Street R. Co. 503 V. Wadsworth 35,744, 753, 753, 794, 797 V. Western Union R. Co. 211 V. Union Improvement Co. 756 Williamson v. Oleson 764 V. Lock's Creek Canal Co. 737 V. Yingling 63, 78 Willis V. Erie Tel. & T. Co. 494 V. Winona City 520 Willitts V. Chicago, B. & K. C. R. Co. 767 Willoughby v. Lawrence 3, 10, 33, 118, 120, 133 Wilmarth v. Woodcock 880 Wilmington Water Power Co. v. Evans 787 Wilmurt v. McGrane 670, 693 Wilson v. Acree 480, 457 V. Chalfant 78 V. Cohen 573 V. Duncan 759 V. Mayor 595 V. Mineral Point 515 V. New Bedford 781 V. New York EL R. Co. 519 V. St. Paul, M. &. M. R. Co. 69,78 V. Sexon 449, 453 V. Waddell 600, 75C V. Wilson 163 WUtshire v. Sidford 632, 653 Wimbledon & Putney Commons V. Dixcn 392, 298, 396, 826 Wimer v. Simmons 866, 870 Winhamv. McQuire 78 Winn V. Abeles 585, 604, 610, 618, 630 Winne v. Ulster Co. Sav. Inst. 78 Winnetka v. Prouty 535 Winnipiscogee Co. v. Young 162, 803 Winona v. Huff 446 Winslow V. King 25, 226 V. Nayson 534 Winston v. Johnson 34, 86, 47, 89, 90, 93, 94, 98, 206, 209, 874 Winter v. BrockweU 847 v. New York &N. J. Tel. Co. 494 V. Payne 430 Winterbottom v. Lord Derby 548 Winthrop v. Fairbanks 90, 93, 93, 315 Wirt V. McEnery 553 Wiseman v. Lucksinger 68, 69, 76, 83, 179, 183 Wissler v. Hershey 298, 384 WisweU V. Minogue 398, 308, 306, 814, 315 Ixi TABLE OF CASES. References are to Sections. Witt V. JeflEerson 5, 93 V. Van Schoyk 889 Witter V. Damitz 439, 440, 531, 538 Wixon V. Bear River & A. W. & M. Co. 75G Woburn v. Henshaw 457 Wolf V. Brass 86, 435, 480 Wolfe V. Frost 1, 3, 63, 64, 69, 80, 697 V. Sullivan 531, 534 Wood V. Boyd 90 V. Kelley 190 V. Lake 69 V. Leadbitter 64, 69, 73, 80, 180 V. Manley 74 V. Michigan Air Line E. Co. 69 71, 353 V. Reed 370, 388 V. Sutclifife 794, 883 T. Truckee Turnpike Co. 4 V. "Veal 444 V. Waud 741, 753, 755, 794, 805, 807 Woodbury v. Parshley 69 V. Short 808 Woodin V. Wentvporth 751 Woodruff V. Neal 479 V. North Bloom field Gravel Co. 756 V. Paddock 160, 585, 536, 539, 866 Woodward v. Seely 63, 69, 74 V. Worcester 755, 883 Woodworthv. Raymond 303, 314, 315 Woodyear v. Shaefer 755 Woodyer v. Hadden 430, 430 Woolard v. Chymer 443 Wooley V. Groton 101 Woolsey v. New York El. R. Co. 510 Worcester v. Green 14, 57 Workman v. Curran 159, 194, 195 Worne v. Marsh 837 Worrall v. Rhoads 163, 887 Worth V. Dawson 457 Worthington v. Gimson 166, 354, 255 V. Wade 437 Wright v. Boston & A. R. Co. 280 V. Carter 478 V. Freeman 867 V. Howard 741, 794, 795 Ixii Wright V. Moore 531 V. Tukey 444 V. Williams 794, 799 V. Wright 175 Wyandot Club v. Sells 783 Wyatt V. Harrison 585, 604, 606, 613, 620 V. Larimer & W. Irrigation Co. 16 Wyman v. New York 237, 235, 242, 343 V. State 434, 457 Wynkoop v. Burger 337, 343, 353, 831 Wynn v. Garland 1, 78, 86 Wynstanley v. Lee 885 Wysor v. Lake Erie & W. E. Co. 353 Yankee Jim's Union Water Co. v. Crary 866 Yandes v. Wright 597 Yates V. Jack 885 V. Judd 430 V. Warrenton 531 V. West Grafton 439, 463 Yazoo & Miss. Val. R. Co. v. Davis 772, 774 Yeakle v. Nace 867 Yerex v. Eineder 764 Yooco V. Conroy 793 Yolo County v. Barney 531 York V. Briggs 367, 387 Youghiogheny River Coal Co. v. Pierce 46 Young, petitioner 101 Young V. 482 V. Bankier Distillery Co. 737, 756 V. Conrad 160 V. Highw. Com'rs 775 V. Leedom 770 Zeasing v. Raber 227, 331, 243, 446 Zeininger v. Schnitzler 643, 653 Zell V. First Universalist Society 39, 141, 335 Zettel V. West Bend 546 Zigefoose v. Zigefoose 450 Zimmerman v. Snowden 457 Zinc Company v. La Salle 447, 553 Zugenbuhler v. Gilliam 636, 647, 663 PART I. EASEMENTS IN GENERAL AND THEIR CREATION. CHAPTER I. DEFINED AND DISTINGUISHED. II. CREATED BY GRANT. III. CREATED BY IMPLIED GRANT UPON SEVERANCE. IV. CREATED BY PRESCRIPTION. PART I. EASEMENTS IN GENERAL AND THEIE CREATION. CHAPTEE I. EASEMENTS DEFINED AND DISTINGUISHED. I. In general, 1-17. II. Appurtenant to land, 18-32. III. In gross, 33-48. IV. Profit h prendre, 49-62. V. License, 63-79. I. In General. i . An easement is a privilege without profit which one has for the benefit of his land in the land of another.' An easement has also been defined in more ample terms to be " a privilege without profit, which the owner of one tenement has a right to enjoy in respect to that tenement in or over the tenement of another person whereof the latter is obliged to suffer or refrain from doing some- thing on his own tenement for the advantage of the former. ' ' ^ Again it is said to be "a right which one proprietor has to some ' Washb. Easem. 2; Goddard's Easem. 452; Hewlins v. Shippam, 5 B. & C. 221, 229; Wynn v. Garland, 19 Ark. 23, 68 Am. Dec. 190; Johnson v. Lewis, 47 Ark. 66, 71, 14 S. W. Rep. 466; Dubuque V. Maloney, g Iowa, 450, 74 Am. Dec. 358; KarmuUer v. Krotz, 18 Iowa, 352, 356, per Dillon, J.; Morrison v. Mar- quardt, 24 Iowa, 35, 61, 92 Am. Dec. 444; Cook V. Chicago, B. & Q. R. Co., 40 Iowa, 451; Ritger v. Parker, 8 Cush. 145, 147, 54 Am. Dec. 744; Greenwood Lake & Port J. R. Co. v. New York & G. L. R. Co., 134 N. Y. 435, 31 N. E. Rep. 874, 47 N. Y.St. 550; Huyck v. An- drews, 113 N. Y. 81, 20 N. E. Rep. 581, 3 L. R. A. 785; Nellis v. Munson, 108 N. Y. 453, 459, 15 N. E. Rep. 739; Hills V. Miller, 3 Paige, 254, 257, 24 Am. Dec. 218; Pierce v. Keator, 70 N. Y. 419, 421, 26 Am. Rep. 612; Wolfe v. Frost, 4 Sandf. Ch. 72; Post v. Pearsall, 22 Wend. 425, 438; Jackson v. Trullin- ger, 9 Oreg. 393, 397; Big Mountain Imp. Co. 's Appeal, 54 Pa. St. 361. " Goddard on Easem. 2; approved in Stevenson v. Wallace, 27 Gratt. 77, 87, and Tardy v. Creasy, 81 Va. 553, 556, 59 Am. Rep. 676; Ritger v. Parker, 3 Cush. 145, 54 Am. Dec. 744, per Shaw, C. J.; Owen v. Field, 102 Mass. 90, 103, per Ames, J. 3 §§ 2, 3. J EASEMENTS DEFI^'ED AND DISTINGUISHED. profit, benefit or lawful use, out of or over tlie estate of another proprietor. ' ' This latter definition is exceptional. Almost all the definitions exclude those privileges which include rights to profits out of the soil. These are called rights to profits a frcndo-e, and are regarded as a peculiar species of easements, and are treated of under that title. The essential qualities of easements as stated in almost the same terms by the courts in many cases, and by distinguished authors, are these: First, they are incorporeal; second, they are imposed on corporeal property ; third, they confer no right to a participation in the profits arising from such property ; fourth, they are imposed for the benefit of corporeal projjerty ; fifth, there must be two distinct tenements, — the dominant, to which the right belongs, and the ser- vient, upon which the obligation rests.' 2. An easement aside from an easement in gross can exist only as it is appurtenant to land.^ It cannot exist unconnected with the land, to the enjoyment and occupation of which it is incident. A right in the land granted for the personal use and benefit of an individual is a personal privilege, which is called an easement in gross, as distinguished from the privilege usually termed an ease- ment, which is a privilege incident to particular land. Whether a privilege is a personal right, or is appurtenant to some estate, and therefore an easement, is determined by a fair interpretation of the instrument creating it, aided, if necessary, by the situation of the property and the surrounding circumstances.' 3. The land in favor of which the privilege exists is called the dominant tenement, and that upon which the burden or servitude is imposed is called the servient tenement. Both have reference to the land, and not to the person, of its owner.'' It is essential to an I easement that there should be both a dominant and servient estate. 'Washb. Easem. 3; Wolfe v. Frost, 4 Morton, J.; substantially in his lan- Sandf. Ch. 72, 89; Pierce v. Keator, 70 guage. N. Y. 419,421, 26 Am. Rep. 612; Shirley ■'Mayo v. Newhoff,47 N. J. Eq. 31, 19 V. Crabb, 138 Ind. 200, 203; Harrison Atl. Rep. 837; Pierce v. Keator, 70 N. V. Boring, 44 Tex. 255, 267. Y. 419, 421; 26 Am. Rep. 612; Wolfe v. 'Ackroyd v. Smith, 10 C. B. 164; Frost, 4 Sandf. Ch. 72; Willoughby v. Wagner v. Hanna, 38 Cal. 116, 99 Am. Lawrence, 116 111. 11, 16, 4 N. E. Rep. Dec. 354; Peck v. Conway, iig Mass. 356; Kieffer v. Imhoff, 26 Pa. St. 438; 546; Tardy v. Creasy, 81 Va. 553, 59 Wagner v. Hanna, 38 Cal. lii, 116, 99 Am. Rep. 676. Am. Dec. 354. *Peck V. Conway, 119 Mass. 546, per 4 IN GENERAL. [§§ 4, 5. A priyilege to use the land of another, which has no reference to the land of the person to whom the privilege is given, is not an easement.^ It is as essential that an easement should be connected with a dominant tenement, as it is that there should be a tenement over which the right is exercised.^ But while, as a general rule, there must be a dominant estate to which an easement may appertain, and a servient estate upon which it is imposed, "there may be easements in gross, which are not appurtenant to any land, and which the owner may enjoy, although he does not own or possess a dominant estate or any land whatever. " ' 4. A right of exemption from paying toll to a turnpike company- is not an easement. The right of the turnpike company to collect tolls, when this right is conferred upon it in consideration of its building the road, is itself an easement. The road belongs to the public and every one has the right to use it upon paying the tolls established by law. An exemption from such payment, conferred upon the owner of land through which the road is built, is not an easement, because there is no servient estate. Such person has the right to use the road as one of the public. This agreement with the turnpike company simply relieves him from the payment of tolls.* 5. It is not essential that the dom.inant and servient estates shall be contiguous, except that in the case of a right of way, it is said to be essential that one terminus of the way shall be in the domi- nant estate. ° Thus a pew in a church may be appurtenant to a house quite distant from the church.* The owner of a spring in a village laid an aqueduct along the village street. By a deed, duly acknowledged and recorded, he granted to the owner of a house and land upon a street which intersected that on which the pipe was laid, the right of taking from the aqueduct through a half -inch pipe, water, sufBcient for the use of the householder's family, or his heirs and assigns owning and occupying his land, " to have and to hold the said right and privilege forever. ' ' The owner of the spring 'Rangeley v. Midland R. Co., L. R., 'Wagner v. Hanna, 38 Cal. iii, 99 3 Ch. App. 306, 310, per Lord Carnes; Am. Dec. 354. Wolfe V. Frost, 4 Sandf. Ch. 72; Dark ^ Mayor of New York v. Law, 125 N.Y. V. Johnston, 55 Pa. St. 164; 93 Am. Dec. 380, 392, 26 N. E. Rep. 471, per Earl, J. 732; Cadwalader v. Bailey, 17 R. L 495, ■* Kellett v. Clayton, 99 Cal. 210, 33 23 Atl. Rep. 20, 14 L. R. A. 300; Wagner Pac. Rep. 885; Wood v. Truckee Turn- V. Hanna, 38 Cal. iii, 116, 99 Am. Dec. pike Co., 24 Cal. 474. 354- "8 36. '§11. 5 § 5.] EASEMENTS DEFINED AND DISTINGUISHED. conveyed his interest, and his gfantee ctit off the honseholder's sup- ply of water. In an action by him against the grantee, it was held that the right of the plaintiff to take the water was not personal or in gross, but was connected with his house-lot, and amounted to an easement, and would pass with the land to whomsoever that might come.' A dam or reservoir may be appiirtenant to a mill though situated at a considerable distance therefrom.- The dam or reservoir is incident to the mill and necessary to its beneticial enjoyment. It passes with the mill upon a conveyance without special mention. " It is said this dam or easement, " in the case just cited, "is too far distant to pass by a conveyance of the mill. But the idea and defi- nition of an easement incident to real estate granted, is a privilege off and beyond the local boundaries of the land or tenement con- veyed. There is always a dominant and a servient tenement. It is not necessary that they should be contiguous to each other. The proximity of the one to the other is of little comparative importance in determining the question whether the easement passes by a convey- ance of the dominant tenement. It depends rather upon the nature, character and purpose of the easement, its relation to the subject matter of the grant, its accustomed use in connection with it, and its necessity to the value, and to the beneficial and convenient use of the premises granted. There is a necessary connection between the mill and the stream and fountain of water which supply it, and which had long been used in connection with it. The value of the mill depended mainly upon this privilege, so that without it the mill was almost worthless. The easement or privilege in question was necessary, if not indispensable, to the use of the mill, was of great value to the grantee, and of no value apparently to the grantor after he had parted with the mill. Under these circumstances it is clear that the easement passed with the mill. ' ' A reservation of a half interest in a well with a right of way to it, is an easement appurtenant to other land of the grantor although the dominant and servient estates are not in contiguity, being sepa- rated by a highway. The right reserved is not a mere personal right or license for the benefit of the grantor alone, but is for the benefit of the grantor's estate and passes to his grantee.' ' Cady V. Springfield Water Works' ' Perrin v. Garfield, 37 Vt. 304, 312. Co., 134 N. Y. 118, 31 N. E. Rep. 245; ^Witt v. Jefferson (Ky.), 18 S. W. Phillips V. Rhodes, 7 Met. 322. Rep. 229. IN GENERAL. [§ 6. 6. An easement exists for the benefit of the dominant owner alone, and the servient owner acquires no right to insist upon its con- tinuance, or to claim damages upon its abandonment.^ Thus a canal company under legislative authority diverted for the purposes of the canal a considerable part of the water of a brook, the residue of the waters of the brook, much diminished in quantity, continuing to flow in its original channel. After the lapse of about half a cen- tury the canal was purchased by a railway company, and subse- quently filled up and a cut made which restored the water to the brook. The bed of the stream, owing to the diminished scour of the water, had been filled iip, so that it was insufficient to carry ofl^ the water coming down in extraordinary floods. Such a flood occurring, and the water overflowing and damaging the crops of one who owned land on the stream below the point where the water was diverted to the canal, and where the water was afterwards restored to it, this landowner brought an action against the railway company for damages ; and it was held that he had no right of action, because no obligation was imposed upon the canal company or its grantee to continue the diversion. The enjoyment by the landowner of a relief from the water for many years gave him no legal right to a continuation of that relief. On the other hand, when the canal company ceased to use the water for the purposes aiithorized, the riparian owners below had a right to insist that the water should be allowed to flow in its natural course for their benefit. Chief Justice Cockburn delivering judgment said: " Now, it is of the essence of such an easement that it exists for the benefit of the dominant tenement alone. Being in its very nature a right created for the benefit of the dominant owner, its exercise by him cannot operate to create a new right for the benefit of the servient owner. Like any other right, its exercise may be discon- tinued, if it becomes onerous, or ceases to be beneficial, to the party entitled. An easement like the present, while it subjects the owner of the servient tenement to disadvantage by taking from him the use of the water, for the watering of his cattle, the irrigation of his land, the turning of his mill, or other beneficial use to which water may be applied, may, on the other hand, no doubt, be attended inci- dentally with equal or greater advantage to him, as, for instance, by rendering him safe from the danger of immdation. But this will ' Mason v. Shrewsbury & H. Ry. Co., L. R. 6 Q. B. 578, 585, 10 Eng. Rul. Cas. 22. Y §§ 7, 8.] EASEMENTS DEFINED AND DISTINGUISHED. give him no right to insist on the exercise of the easement on the part of the dominant owner, if the latter finds it expedient to aban- don his right. In like manner, where the easement consists in the right to discharge water over the land of another, though the water may be advantageous to the servient tenement, the owner of the latter cannot acquire a right to have it discharged on to his land, if the dominant owner chooses to send the water elsewhere, or to apply it to another purpose." ■* 7. The law of easements and servitudes relates exclusively to land and has no application to chattels.^ But the owner of a building disassociated in title from the land whereon it stands, may, when he sells part of it, reserve rights in the part sold, for the benefit of the part retained, which the law will maintain and protect.' 8. The owner in fee of land may impose upon it any burden however injurious or destructive, not inconsistent with his general right of ownership, if such burden is not in violation of public policy, and does not injuriously affect the rights or property of others.* Anything that is for the advantage of the dominant owner, and to the disadvantage of the servient owner is an ease- ment. Thus a right to the free passage of light and air over and through a street to and from the adjoining land is an easement.^ The right to discharge smoke and soot on the premises of another is an easement within the meaning of a statute enacted to prevent or regulate the acquisition of easements by prescription. ° The right to discharge in the air over another's land, cinders, ashes or noxious vapors may be acquired as an easement ; and the exercise of this right in a public street, interrupting the free passage of light and air to and from the adjoining premises, constitutes the taking of the easement which an abutting owner has in the street.' "Ease- ments," says Lord Herschell, "may be of various characters, and it is a fallacy to suppose that every easement must be brought within some particular class which has been recognized, such as the class 'Mason V.Shrewsbury & H. Ry. Co., R. Co., i Hun, 507, 509, per Boarcl- L. R. 6 Q. B. 578, 587, 10 Eng. Rul. Cas. man, J. 22, 30, per Blackburn, J. = Lahr v. Metropolitan Elev. R. Co., ' Mayo V. Newhoff, 47 N. J. Eq. 31, 104 N. Y. 268, 10 N. E. Rep. 528. ig Atl. Rep. 837. 'Churchill v. Burlington Water Co., 3 Mayo V. Newhoff, 47 N. J. Eq. 31, (Iowa), 62 N. W. Rep. 646. 19 Atl. Rep. 837. 'Story v. Railroad Co., go N. Y. ^Van Rensselaer v. Albany & S. 122, 43 Am. Rep. 146. IN GENEEAL. [§ 9. relating to water-courses, or light or air or otherwise. If a right is granted by the owner of land to another person to enter and to do something on the grantor's land for the benefit of the land of that other person that ])nina facie is an easement. And I do not see any reason why there should not be a perfectly valid easement in this right to go upon the land of the owner of locks or slnices, and in times of flood raise those locks or slnices to let the water down for the benefit of the land of the person who exercises the right." ' 9. In several States the various easements are enumerated by- statute Law. In California, Montana, North Dakota, Oklahoma, South Dakota ^ the following land burdens or servitudes upon land, may be attached to other land as incidents or appurtenances, and are then called easements. 1. The right of pasture; 2, The right of fishing; 3, The right of taking game; 4, The light of way; 5, The right of taking water, wood, minerals and other things; 6, The right of transacting business upon land; T, The right of conducting lawful sports upon land; 8, The right of receiving air, light, or heat from or over, or discharging the same upon or over land; 9, The right of receiving water from or dis- charging the same upon land; 10, The right of flooding land; 11, The right of having water flow without diminution or disturb- ance of any kind; 12, The right of using a wall as a party -wall; 13, The right of receiving more than natural support from adjacent land or things affixed thereto ; 14, The right of having the whole of a division fence maintained by a coterminous owner; 15, The right of having public conveyances stopped, or of stopping the same on land; 16, The right of a seat in church; lY, The right of burial. The following land burdens or servitudes upon land, may be granted and held, though not attached to land: 1, The right to pasture, and of fishing and taking game ; 2, The right of a seat in ' Simpson v. Mayor of Godman- owner affected by the exercise of the Chester [1896], I Ch. 214, 219. In this right. case the owners of a mill had for up- ^California: Civ. Code, §§ 801-811. wards of 200 years exercised an unin- Montana: Civ. Code 1895, § 1250- terrupted right to open in times of 1260. flood, certain river locks, and it was North Dakota: R. Codes 1895, §§ held that the present owner of the mill 3351-3361. was entitled to the right as an ease- Oklahoma: Comp. Stats. 1893, §§ ment, and that such easement would 3724-3734. be presumed to have been granted in South Dakota: Comp. Laws, 1887, respect of the lands of the present §§ 2760-2770. 9 §§ 10, 11. J BASEMENTS DEFINED AND DISTINGUISHED. church; 3, The right of burial; 4, The right of taking rents and tolls; 5, The right of way; 6, The right of taking water, wood, mineral, or other things. The enumeration given above includes not onlj easements prop- erly so called, h^i profits d prendre as well. 10. There are many easements besides the principal ones named in these statutes. There may be an easement of piling articles of merchandise in boxes and bales, of hoisting them into a building, and of swinging shutters over a passage way.* There may be an easement to pile logs and lumber upon land used as a mill yard for the accommodation of a saw-mill.^ A right of pasturage is an easement. Thus a reservation of the grass, herbage, feeding and pasturage creates an easement in the grantor to enter and depasture the granted land.' A right of common pasturage is an easement either appurtenant or in gross.'' A right to take sea weed from a beach is a profit a prendre in the nature of an easement, which is either appurtenant or in gross according to the terms of the grant and the attendant circum- stances.' Some others of the easements named are of the species called pi'ofits d prendre. The right to use the wall of a building as a sign space is an ease- ment that carries with it the right of such access to the wall as is necessary to make the right of value. A contract for such use of the wall for a stipulated term is not a lease, and the use of the wall under the contract is not a possession under a lease.^ 1 1 . The right to use a pew in a church may be appurtenant to a house as an easement.''' In such case the general property in the pew is in some religious society, and the use of it only in the owner of the house. The right may be acquired by grant or prescription. 'Richardson v. Pond, 15 Gray, 387. 'Phillips v. Halliday [i8gi], App. 'Gurney v. Ford, 2 Allen, 576; Cas. 228, per Lord Hershell; Harris v. Voorhees v. Burchard, 6 Lans. 176. Drewe, 2 Barn. & Ad. 164; Hinde v. ' Rose V. Bunn, 21 N. Y. 275. Chorlton, L. R. 2 C. P. 104; Stocks v. ■•Thomas v. Marshfield, 10 Pick. Booth, i T. R.428, 430, per Buller, J — ; 364; Livingston v. Ten Broeck, 16 Walker v. Gunner, i Hagg. Const.' Johns. 14, 25, 8 Am. Dec. 287. 314, 319, 322 per Lord Stowell; Shaw '' Phillips V. Rhodes, 7 Met. 322. v. Beveridge, 3 Hill, 26, 38 Am. Dec ' R. J. Gurning Co, v Cusack, 50 5i6. 111. App. 2go; Willoughby v. Lawrence, n6 111. ir, 56 Am. Rep. 758. 10 IN GENEEAL. [§§ 12, 13. The pewholder has an exchisive right to occupy his pew, and may maintain trespass against any one who disturbs him in this riglit. But he does not own the soil over which his pew is built; nor the space above it; for there may be other pews in a gallery above him.^ His right is an easement only, being the right to use the pew for special purposes.^ A right of burial, when confined to a churchyard, as distinguished from a separate independent cemetery, although conveyed with the common formula of " heirs and assigns forever," must, it seems, stand upon the same footing as the right of public worship in a par- tieidar pew of the church. It is an easement in, and not a title to the freehold ; and must be understood as granted and taken, subject to such changes as the altered circumstances of the congregation or the neighborhood may render necessary. Like the sale of a church pew, which gives the mere right to worship in the particular place while the church stands and is occupied for religious purposes, the sale of a church vault gives, it seems, the mere right of interment in the particular plat of ground, so long as that and the contiguous ground continues to be occupied as a church yard.* 12. There may be an easement of ventilation and courts of equity will protect it by injunction. The cellar of a public house was ventilated by means of a shaft cut through the rock into a dis- used well situated upon land belonging to the owner of the adjoin- ing estate, the air from the cellar passing through the shaft and out at the top of the well. The cellar had been so ventilated for more than forty years, without interruption, and with the knowledge of the owner of the land upon which the well was situated. It was held that an easement of the free passage of air from the cellar had been acquired and that a lost grant of the right ought to be inferred.* 13. An easement is not a right to the soil of the land or to any- corporeal interest in it. Thus a right of way is a right to the rea- sonable enjoyment of the land in which the right exists, as a road or way. It is not a right to use the land for any other purpose, nor is it a right to use every square inch of the surface of the land for that purpose. An easement in a carriage-road forty feet wide is not 'Gay V. Baker, 17 Mass. 435, 9 Am. ' Hinde v. Chorlton, L. R. 2 C. P. Dec. I5q; Jackson v. Rounseville, 5 104. Met. 127; Shaw v. Beveridge, 3 Hill, ^ Richards v. Northwest Prot. Dutch 26, 38 Am. Dec. 6l6. Church, 32 Barb. 42. ■I Bass V. Gregory, 25 Q. B. D. 481. 11 § 1-1. J EASEMENTS DEFINED AND DISTINGUISHED. interfered with by the building of a portico, the columns of which project two feet into the road, there being ample space left for the convenient enjoyment of the easement conveyed to the grantee. "The road is not his, the exclusive use of it is not granted to him; what was granted to him was an easement and nothing more. The soil has not been conveyed to him, but he has the right to use a road forty feet wide. If the soil of the road had been granted to the plaintiff, any interference with it would have been actionable; but where an easement over a road is granted, only the reasonable enjoyment of the road passes ; this seems to be the result of the authorities as to the difference between the right to the soil and to an easement over it. " ' A conveyance of the ' ' free use of the undivided half part of a wagon way ' ' described, "to be used only for passing in and out at all proper times, but without unnecessary delay or destruction to the said passageway, thereby causing annoyance and damage ' ' to the grantor, with a habendum to the grantee, his heirs and assigns, with the usual covenants of warranty conveys only a right of way or easement.^ A conveyance of a saw -mill ' ' with the privilege of occupjdng land in front of said mill and below the same, sufficient for a tim- , ber yard, adjacent to said saw-mill ' ' creates only an easement in the mill -yard.' J 14. A grant of the exclusive use of land is not an easement, ~for such a grant excludes the grantor, and is in practical effect a grant of the soil itself.^ A grant of the exclusive use of a gateway is a grant not merely of a right of way through the gateway but to the use of tlie gateway for all lawful purposes.^ But this rule does not apply where the grant is exclusive of the use of some particular right in the land. The owner of land on which there were springs ^sold and conveyed to another and his heirs " the whole use " of the springs, with the right of laying an aqueduct 'Clifford V. Hoare, 43 L. J. Com. ■• Buszard v. Capel, 8 B. & C. 141, Pleas, 225, 230, per Brett, J.; L. R. 9 Lord Tenterden, C. J., saying, "it is C, P. 362. difficult to understand how the exclu- ' Harris V. Johnson, 31 N. J. Eq. 174. sive use could be demised and land ^ Cross V. Pike, 59 Vt. 324, 10 Atl. not." Rep. 526, and see Gurney v. Ford, 2 * Reilly v. Booth, 44 Ch. D. 12. Allen, 576. 12 JN (iENEEAL. [§ 15. to supply water to a town, and also the right to enter upon the land for the purpose of constructing and repairing the aqueduct, the grantee covenanting to supply the grantor's house with water. It was also provided that the indenture should be void if water should not be delivered in the aqueduct for the space of a year at one time. It was held that no title to the soil was conveyed, but only an ease- ment in it. The court said there was no more reason for saying that the fee simple of the soil, under and around the springs was vested by the terms of the indenture than for saying that the soil under and inclosing the aqueduct was so vested. " The use of the springs, ' ' taken in connection with the rest of the instrument, could only mean the right to appropriate the water, wholly or in part, by conducting it by means of an aqueduct to the places where it is to be distributed.^ A vote of the proprietors of a township " that one hundred acres of the poorest land on Millstone hill be left common for the use of the town for building stones," does not pass the land itself, but only a limited use of it for a particular purpose, or an easement for the inhabitants of the town.^ 15. A right to take minerals from the land of another is an incorporeal privilege ; but a right to all the coal in certain lands or to a certain vein of coal is a right to a part of the land, and cannot be the subject of a claim by prescription as an easement.^ A reser- vation of the exclusive right of mining in the granted land may be held to operate as an exception from the grant of the property in the mines ; * but a reservation of the right of mining a certain quantity of ore annually at a certain duty per ton does not save to the grantor any interest in the land, but is a mere personal privi- lege.' 'Owen V. Field, 102 Mass. 90. gardner, 86 Va. 315; 10 S. E. Rep. 3, 'Worcester v. Green, 2 Pick. 425. and see Grubb v. Bayard, 2 Wall. Jr. 'Wilkinson v. Proud, II M. & W. 81; Farnum v. Piatt, 8 Pick. 339, 19 33; Chetham v. Williamson, 4 East, Am. Dec. 330. 469, 476; Doe V. Wood, 2 B.& Aid. 724; ''Benson v. Miners' Bank, 20 Pa. St. Carnahan V. Brown, 60 Pa. St. 23; Cald- 370; Stockbridge Iron Co. v. Hudson well V. Fulton, 31 Pa. St. 475, 72 Am. Iron Co. 107 Mass. 2go. Dec. 760; Caldwell V. Copeland, 37 Pa. 'Stockbridge Iron Co. v. Hudson St. 427, 78 Am. Dec. 436; Gloninger v. Iron Co., 107 Mass. 290, 322; Grove v. Franklin Coal Co., 55 Pa. St. g, 93 Am. Hodges, 55 Pa. St. 504; Johnstone Iron Dec. 720; Barksdale v. Parker, 87 Va. Co. v. Cambria Iron Co., 32 Pa. St. 241, 141, 12 S. E. Rep. 344; Lee v. Bum- 72 Am. Dec. 783. 13 § 16.] EASEMENTS DEFINED AMD DISTIMUUISHED. Au agreement in a deed conveying twenty-two acres of land that the grantee should have the right and privilege to take all the iron ore he found upon the grantor's remaining land, which was a large tract, upon the pajanent of a certain price per ton for the ore taken, was held not to create an easement appurtenant to the land con- veyed, but to be a distinct and independent covenant having no relation to the land conveyed; and, therefore, that the right did not •pass as appurtenant to such land upon a subsequent sale of it under an execution.* 16. A perpetual easement appurtenant to an estate in fee is a freehold interest, and a siiit to recover the enjoyment of it is a suit involving a freehold.* An easement may be held in fee, " nor is there anything novel or strange in the doctrine that there may be a fee in an easement, for an easement is an estate in land. All ease- ments are estates in land. A fee may exist in all estates in land; therefore, a fee may exist in an easement. ' ' ^ An easement is an interest in land ' ' in fee or of a freehold estate ' ' within the meaning of the statute declaring that a conveyance of such an estate shall be acknowledged or attested by a witness; and that a grant not so attested or acknowledged shall not take eiiect as against a purchaser or encumbrancer. Under such a statute the fact that a subsequent purchaser had notice at the tuxie of his pur- chase of the conveyance of the easement by a deed not attested or acknowledged does not affect his right to treat the conveyance as inoperative.* It is an interest in land under a statute which pro- vides that a petition seeking to acqiiire lands for a right of way for a railroad must set out the parties who have an interest in the land, so that those who have easements only must be made parties.^ A water right acquired by a user of water under a contract with an irrigation company, being an easement in the ditch, is an incor- poreal hereditament descendible by inheritance to the owner and lieirs, and constitutes a freehold estate.* ' Grubb V. Guilford, 4 Watts. 223, 28 ■* Nellis v. Munson, io8 N. Y. 453, 15 Am. Dec. 700. N. E. Rep. 739, reversing 24 Hun, 'Tinker v. Forbes, 136 111. 221, 26 575. N. E. Rep. 503; Oswald v. Wolf, 126 'In re Niagara Falls & W. R. Co., 111. 542, 19 N. E. Rep. 28, 25 111. App. 48 Hun, 616, 15 N. Y. St. 546. 501. 'Wyatt V. Larimer & W. Irrigation ''Branson v. Studabaker, 133 Ind. Co., 18 Colo. 298, 33 Pac. Rep. 144. 147, 164, 33 N. E. Rep. 98. 14 APPURTENANT TO LAND. ( §§ 17, 18. 17. An easement constitutes property, of which its owner can- not lawfully be deprived without his consent, and of which the State cannot deprive him under the right of eminent domain with- out requiring compensation to be made therefor. ^ Thus an owner of land abutting upon a public street has an easement in the bed of the street, which entitles him to have it kept open and continued as a public street for the benefit of his property. This easement constitutes private property of which he cannot be deprived without compensation.^ A corporation taking property under the right of eminent domain should obtain a condemnation of easements appurtenant to land as well as of the land itself; and if easements alone are interfered with, there should be a condemnation of these.' II. Appurtenant to Land. 18. An easement is appurtenant when it is for the benefit of the grantee's estate, and in that ease it passes with the estate to all subsequent grantees.^ It is an inheritable estate and passes with the grantee's estate to his heirs and to the heirs of subsequent grantees dying possessed of the tenement to which the easement is appurtenant. The principal thing to which another is appurtenant must be a thing more worthy and of perpetual continuance.^ "It follows that things in their nature equal, and of like character and grade, can never be appurtenant to each other, for the common as well as the legal meaning of the word implies inferiority and dependence, so that a water ditch could never become appurtenant to another ' Lahr v. Metropolitan Elev. R. Co., Mass. 22g; Lathrop v. Eisner, 93 Mich. 104 N. Y. 268, 10 N. E. Rep. 528; Story 5gg, 53 N. W. Rep. 791; Borst v. V. N. Y. Elev. R. Co., 90 N. Y. 122, 43 Empie, 5 N. Y. 33; Robert v. Thomp- Am. Rep. 146. son, 16 Misc. (N. Y.) 638, 40 N. Y. ''Story V. N. Y. Elev. R. Co., 90 N. Y. Supp. 754; Pierce v. Keator, 70 N. Y. 122, 43 Am. Rep. 146. 419, 26 Am. Rep 612; Boatman v. 'Long Island R. Co. v. Garvey, 42 Lasley, 23 Ohio St. 614; Metzger v. N. Y. Supp. 155. Holwick (Ohio), 31 W. L. Bui. 241; ''Ackroyd v. Smith, 10 C. B. 164; Kuecken v. Voltz, iro 111. 264; Louis- Bailey V. Stephens, 12 C. B. N. S. 91; ville & N. R. Co v. Koelle, 104 111 455; Hopper v. Barnes, 113 Cal. 636, 45 Pac. Moore v. Crose, 43 Ind. 30; Spensley Rep. 874; Dennis v. Wilson, 107 Mass. v. Valentine, 34 Wis. 154. 591; Underwood v. Carney, i Cush. 'Co. Litt. ii\ b, 122 a. 285; Boland v. St. John's Schools, 163 15 §§ 19, 20.] EASEMENTS DEFINED AND DISTINGUISHED. ditch of like character, and pass as an incident thereto, for the same reason that one farm will not pass as an appurtenance to another."" 19. A right of way is appurtenant to the land of the grantee if so in fact, although not declared to be so in the deed.^ If the way leads to the grantee's land and is useless except for use in connec- tion with it, and both before and after the grant was used solely for access to such land, it is appurtenant to it. Though the way be granted by separate deed to one and " his heirs and assigns forever" it sufficiently appears that the way was intended to be appurtenant to the grantee's adjoining land, when such intent is in accord with all the attendant circumstances. A granted right of way which leads to the grantee's land confers an easement appurtenant to such land and not merely a personal right. ^ It is not essential that the grant of a way should be made by the same deed by which the land is conveyed in order to make the way appurtenant to such land ; nor is it essential that the way be declared by the deed conveying it as appurtenant to the grantee's land. Thus where one conveyed certain land by metes and bounds without including any right of way, and upon the same day con- veyed to the grantee ' ' his heirs and assigns, and tenants and occu- piers," a right of way over a strip of land adjoining the land already conveyed to him, it was held that the way was appurtenant to such land.^ Under an entry in a public land office of a portion of the public lands occupied as a town site, the occupant of a lot, in a town which had been surveyed and platted into streets, alleys, blocks and lots, continues to possess after such entry the same right of way over an adjoining alley which he had previously possessed as appurtenant to his lot.^ SO. Only incorporeal rights pass as appurtenant to land or under the description of "appurtenances." Land cannot pass as appurtenant, nor can the actual and exclusive possession of land ' Donnell v. Humphreys, i Mont. Smith v. Worn, 93 Cal. 206, 28 Pac. 51S, 525, per Wade, C. J. Rep. 944; Lide v. Hadley, 36 Ala. 627, ' Hopper V. Barnes, 113 Cal. 636, 45 76 Am. Dec. 338. Pac. Rep. 874; and see Dennis v. Wil- " Moll v. McCauley, 83 Iowa 677, 50 son, 107 Mass. 591; Huttemeier v. N. W. Rep. 216. Albro, 18N. Y. 48. "Ashley v. Hall, 119 U. S. 526, 7 ^ Randall v. Chase, 133 Mass. 210; Sup. Ct. 308. Underwood v. Carney, i Cush. 285; 16 APPUETKNANT TO LAND. [§ ^1- pass as appiirtenant, for such possession does not differ in effect from a title in fee.^ Lord Coke states the rule saying: "A thing corporeal cannot properly be appendant to a thing corporeal, nor a thing incorporeal to a thing incorporeal. ' ' ^ By a grant of a mill with _ its appurtenances, the soil of a way, iramemorially used for the purpose of access to the mill from a highway does not pass.^ The Supreme Court of the United States holding that the soil and freehold of streets would not pass as appurtenances to land adjacent to such streets when taken by the United States by right of emi- nent domain for the purpose of a navy yard, though the soil and freehold of the streets belonged to the owner of the land taken, say : ' 'A mere easement may, without express words, pass as an incident to the principal object of the grant; but it would be absurd to allow the fee of one piece of land, not mentioned in the deed, to pass as appurtenant to another distinct parcel, which is expressly granted by precise and definite boundaries. ' ' ^ 2 1 . A conveyance of a mill or mill site carries as a necessary incident to the grant the water privileges necessary for its use.' By the grant of a house the curtilage and garden belonging to it pass with it as part of it. In the one case the water privilege, and in the other the curtilage passes not as appurtenant or incident to the thing granted but as parcel of the thing itself.^ "This is because, in the absence of anything to show the contrary, the grantor ' Harris v. Elliott, lo Pet. 25, 54; 5 Wend. 523; Burr v. Mills, 21 Wend. Investment Co. v. Ohio & N. W.- Ry. 2go; Sloat v. McDougal, g N. Y. Supp. Co., 41 Fed. Rep. 378; GriiBths v. 631; Branson v. Studabaker, 133 Ind. Morrison, 106 N. Y. 165, 12 N. E. Rep. 147, 165, 33 N. E. Rep. 98; Blaine v. 580; Jackson v. Hathaway, 15 Johns Chambers, i Serg. & R. i6g; Perrin v. 447, 8 Am. Dec. 263; Leonard v. White, Garfield, 37 Vt. 304, 312. In thiscase the 7 Mass. 6, 5 Am. Dec. ig; Donnel! v. pond upon which the mill was depend- Humphreys, i Mont. 518, 525. ent for water was about a mile from ' I Co. Litt. 121 b. the mill; but it was held that the ease- ' Leonard v. White, 7 Mass. 6, 5 mentpassed with the mill notwithstand- Am. Dec. ig. ing its distance from the mill. * Harris V. Elliott, 10 Pet. 25, 54. ^Sheets v. Selden, 2 Wall. 177; 'Jones on Real Property, §§ 1652- Bonelli v. Blakemore, 66 Miss. 136, 5 1656; Preble V. Reed, 17 Me. l6g; Green So. Rep. 228; Johnson v. Rayner, 6 V. Collins, 86 N. Y. 246, 253, 40 Am. Gray, 107; Branson v. Studabaker, 133 Rep. 531, per Miller, J.; Voorhees v. Ind. 147, 165, 33 N. E. Rep. 98; Ken- Burchard, 55 N. Y. 98; Comstock worthy v. TuUis, 3 Ind. g6; Morrison V. Johnson, 46 N. Y. 615; McMillan v. v. King, 62 111. 30; Cook v. Whiting, 16 Lauer, 24 N. Y. Supp. 951; Huttemeier 111. 480. V. Albro, 18 N. Y. 48; Oakley v. Stanley, [2] 17 § 22. J EASEMENTS DEFINED AND DISTINGUISHED. will be presumed to have so intended; but if in the instnunent he negatives such an intention, the rule does not apply." Thus, where the owner of a mill and pond conveyed the mill lot, describ- ing it by metes and bounds, excluding the pond, but giving the grantee the right to draw water through a six-inch pipe so long as the pond should be continued, and on the same day leased to the grantee for the term of twenty years at a stipulated rent all the water of the pond, subject to certain reservations, " the two instru- ments taken together," say the court, "show plainly tliat the grantor did not intend to give the plaintiff a right to have the pond permanently maintained. The right expressly given to draw water through the six-inch pipe was limited to the tune that the pond should be continued, thus implying that the grantor might at any time discontinue it. But as a part of the bargain, the grantor was vrilling, by the lease, to give the grantee a right to xise the pond for twenty years. At the expiration of that time the plaintiff's rights in it would cease if it should be discontinued, and would be limited to the flow through the six-inch pipe if it should be maintained." ^ But if the owner of a mill and dam sells the land flowed by the dam, making no reservation of the right to continue to flow the land, he cannot set up an implied reservation of the right of flowage. He loses the right to flow such land.^ "A man makes a lane across one farm to another which he is accustomed to use as a way; he then conveys the former, without reserving a right of way ; it is clearly gone. A man cannot, after he has absolutely conveyed away his land, still retain the use of it for any purpose without an express reservation. The flowing or the way are but modes of use, and a grantor might as well claim to plough and crop his land. " ^ 22. An easement which by grant, reservation or prescription is appurtenant to land is not a mere privilege to be enjoyed by the person to whom it is granted or by whom it is reserved. It passes by a deed of such person to his grantee and follows the land with- out any mention whatever.* 'Washburn & Moen Co. v. Salis- ■* United States v. Appleton, i Sumn. bury, 152 Mass. 346, 352, 25 N. E. Rep. 492, 503, per Story, J.; Hazard v. 724, per Knowlton, J. Robinson, 3 Mason, 272, 279. -Preble v. Reed, 17 Me. 169; Burr California: Cross v. Kitts, 69 Cal. V. Mills, 21 Wend. 290. 217, 10 Pac. Rep. 409. 3 Burr V. Mills, 21 Wend. 290, 292, Illinois : Chicago, Santa Fe & Cal. R. per Cowen, J. Co. v. Ward, 128 111. 349, 18 N. E. Rep 18 APPHETEKANT TO LAXD. [§23. 23. The term "appurtenances" is an apt one for passing an easement, such as a right of way/ but it is not essential to the 828, 21 N. E. Rep. 562; Tinker V. Forbes, 136 111. 221, 26 N. E. Rep. 503; Kuecken V. Voltz, no 111. 264, 268; Morrison v. King, 62 111. 30; Kuhlman v. Hecht, 77 111. 570; Oswald V. Wolf, 126 111. 542, ig N. E. Rep. 28. Indiana: Parish v. Kaspare, 109 Ind. 586, 10 N. E. Rep. 109; Ross v. Thomp- son, 78 Ind. go; Robinson v. Thrailkill, no Ind. 117, 10 N. E. Rep. 647; David- son V. Nicholson, 59 Ind. 411. Iowa: KarmuUer v. Krotz, 18 Iowa, 352; Wetherell v. Brobst, 23 Iowa, 586; Moll V. McCauley, 83 Iowa, 677, 50 N. W. Rep. 216. Louisiana : Bruning v. New Orleans Canal Co., 12 La. Ann. 541. Maine : Cole v. Bradbury, 86 Me. 380, 29 Atl. Rep. 1097; Dority v. Dunning, 78 Me. 381; Herrick v. Marshall, 66 Me. 435. Maryland : Barry v. Eldavich (Md.), 35 Atl. Rep. 170. Massachusetts : Brown v. Thissell, 6 Cush. 254; French v. Morris, 101 Mass. 68; Jones v. Adams, 162 Mass. 224, 38 N. E. Rep. 437; HoUenbeck v. McDonald, 112 Mass. 247; Barnes v. Lloyd, 112 Mass. 224; Norcross v. James, 140 Mass. 188, 2 N. E. Rep. 946; Hogan v. Barry, 143 Mass. 538, 10 N. E. Rep. 253; Johnson v. Knapp, 146 Mass. 70, 15 N. E. Rep. 134; Underwood v. Car- ney, I Cush. 285; Ritger v. Parker, 8 Cush. 145; Philbrick V. Ewing, 97 Mass. 133; Oliver v. Dickinson, 100 Mass. 114; Parker v. Bennett, 11 Allen, 388, Pettingill v. Porter, 8 Allen, i, 85 Am. Dec. 671; Kent v. Waite, 10 Pick. 138, 141. Michigan: Walz v. Walz. loi Mich. 167, 59 N. W. Rep. 431; Lathrop v. Eisner, 93 Mich, sgg, 53 N. W. Rep. 791. Missouri: Stilwell v. St. Louis & H. Ry. Co., 39 Mo. App. 221. Montana: Sweetland v. Olsen, 11 Mont. 27, 27 Pac. Rep. 339; Tucker v. Jones, 8 Mont. 225, 19 Pac. Rep. 571; Donnell V. Humphreys i Mont. 518. New Hampshire: Spaulding v. Ab- bot, 55 N. H. 423; Seavey v. Jones, 43 N. H. 441, 443. New Jersey : Brakely v. Sharp, 9 N. J Eq. g. New York ; Cady v. Springville Water Works Co., 10 N. Y. Supp. 570; Hutte- meier v. Albro, 18 N. Y. 48; Hills v. Miller, 3 Paige, 254, 24 Am. Dec. 218; Newman \ . Nellis, 97 N. Y. 285; Valen- tine v; Schreiber, 3 N. Y. App. D. 235, 73 N. Y. St. 838, 38 N. Y. Supp. 417; Wells v. Tolman, 34 N. Y. Supp. 840. Ohio: Shields V. Titus, 46 Ohio St. 528, 22 N. E. Rep. 717; Boatman v. Lasley, 23 Ohio St. 614; Morgan v. Mason, 20 Ohio, 401, 55 Am. Dec. 464; Meek v. Breckenridge, 29 Ohio St. 642. Oregon : Coventon v. Seufert, 23 Oreg. 548, 32 Pac. Rep. 508; Simmons v. Winters, 21 Oreg. 35, 44, 27 Pac. Rep. 7. Pennsylvania; Manderbach v. Or- phan's Home, log Pa. St. 231, 2 Atl. Rep. 422. Rhode Island: Cadwalader v. Bailey, 17 R. I. 495; 23 Atl. Rep. 20, 14 L. R. A. 300. South Carolina: Whaley v. Stevens, 27 S. C. 549, 4 S. E. Rep. 145, 21 S. C. 221, 223. ' Colburn v. Marsh, 68 Hun, 269, 22 478, 12 N. Y. Supp. 516; Simmons N. Y. Supp. 990; Huttemeier v. Albro, i8 N. Y. 48; Newman v. Nellis, 97 N. Y. 285; Mayor of New York v. Law, 125 N. Y. 380, 392, 26 N. E. Rep. 471; Foote v. Manhattan R. Co., 58 Hun, Winters, 21 Oreg. 35, 44, 27 Pac. Rep. 7; Valentine v. Schreiber, 3 N. Y. App. D. 235, 73 N. Y. St. 838, 38 N. Y. Supp. 417. 19 24. J EASEMENTS DEFINED AND DISTINGUISHED. passing of an existing easement, which is in fact appurtenant to the land conveyed. But when an easement, although not originally belonging to an estate, has become appurtenant to it, either by grant or prescription, a conyeyance of that estate will carry with it such easement, whether mentioned in the deed or not, and whether the word "appurtenances" be mentioned or not, although it may net be necessary to the enjoyment of the estate by the grantee.^ 24. The word " appurtenance " conveys only what is legally appurtenant to the land in the hands of the grantor.^ It does not convey an easement in the land of another, which, not having ripened into a legal right, has not become legally attached to the premises conveyed, unless accompanied by proper words describing it, and showing the intention of the grantor to pass it. " Nothing is more clear than that under the word ' appurtenances, ' according Vermont: Coolidge v, Hager, 43 Vt. 9, 5 Am. Rep. 256. Virginia: Long v. Weller, 29 Gratt. 347; Linkenhoker v, Graybill, 80 Va. 835, 839; French v. Williams, 82 Va. 462. Wisconsin: Mabie v. Matteson, 17 Wis. I. In California, Montana, Nortli Dakota and South Dakota a transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is trans- ferred, in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed. Cal. Civ. Code, § iro4; Mont. Civ. Code, 1895, § 1510; N. Dak. R. Codes, 1895, § 3538; So. Dak. Comp. Laws, 1887, § 3248. In Idaho a transfer of real property passes all easements attached thereto, and creates in favor thereof an ease- ment to use other real property of the person whose estate is transferred, in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or com- pleted. R. S. 1887, § 2926, 860. ' United States v. Appleton, I Sumn. 492, 502; Alexander v. Tolleston Club, no 111, 65; Karmuller v. Krotz, 18 Iowa, 352; Dority v. Dunning, 78 Me. 381, 6 Atl. Rep. 6; Cole v. Bradbury, 86 Me. 380, 29 Atl. Rep. 1097, per Waterhouse, J.; Barry v. Edlavitch (Md.) 35 Atl. Rep. 170; Kent v. Waite, 10 Pick. 138; Ritger v. Parker, 8 Cush. 145, 148, 54 Am. Dec. 744, per Shaw, C. J.; Atkins v. Bordman, 2 Met. 457, 467, 37 Am. Dec. 100; Morgan v. 20 Mason, 20 Ohio, 401, 55 Am. Dec. 464; Shields v. Titus, 46 Ohio St. 528, 22 N. E. Rep. 717. ''Harris v. Elliott, 10 Pet. 25, 54; In- vestment Co. V. Ohio & N. W. Ry. Co., 41 Fed. Rep. 378; Cole v. Bradbury, 86 Me. 380, 29 Atl. Rep. 1097, Oliver V. Hook, 47 Md. 301; Spaulding v. Abbot, 55 N. H. 423; Green v. Collins, 86 N. Y. 246, 40 Am. Rep. 531; Swazey v. Brooks, 34 Vt. 451; Ward v. Far- well, 6 Colo. 66. APPURTENANT TO LAND. [| 25. to its legal sense, an easement which has become extinct, or which does not exist in point of law by reason of unity of ownership, does not pass. If the grantor wishes to revive or create such a right he must do it by express words, or introduce the terms ' therewith used and enjoyed, ' in which case easements existing in point of fact, though not existing in point of law, would be transferred to the grantee." ' Thus a conveyance of land with buildings which are supplied with water from a spring on the land of another, without any men- tion of the easement, which had not at the time ripened into a legal right so as to have become attached to the premises, does not con- vey the easement though the word ' ' appurtenances ' ' is used in the habendum.^ Where there has been a dominant and servient tenement, and the ownership of such tenements has been unified, the easement becomes merged and extinguished. When the ownership is again severed, the easement does not revive and pass by a conveyance of the domi- nant tenement though the word " appurtenances " is used.^ 25. A right of easement does not pass as appurtenant without mention unless it is an existing easement actually appurtenant by use and enjoyment at the time of the conveyance. It must actually belong to the estate conveyed in order to pass by implication.* If at the time of the conveyance the existence of the easement has been suspended it cannot pass as appurtenant to the land.^ Where, at the time of the conveyance of a house and land, water was supplied to the house through a pipe laid under an oral license across the land of a third person to a highway, where it joined a pipe leading from the mam pipe of an aqueduct company, it was held that no easement to maintain the pipes across the land of such third person passed by the deed. This right did not belong to the tenement conveyed, and the grantor had no power to convey it as an easement appurtenant. The right at any rate would not pass by implication.* ' Plant V. James, 5 Barn. & Ad. 791, Smith, 6 Conn. 289; Miller v. Scolfield, 794, per Lord Denman. 12 Conn. 335, 343; Williams v. Wads- ''Spaulding v. Abbot, 55 N. H. 423. worth, 51 Conn. 277; Decorah Woolen ^ Fritz V. Tompkins, 41 N. Y. Supp. Mill Co. v. Greer. 49 Iowa, 490; Barker 985; Parsons v. Johnson, 68 N. Y. 62. v. Clark, 4 N. H. 380, 17 Am. Dec. 428; ■•Philbrick v. Ewing, 97 Mass. 133; Spaulding v. Abbot, 55 N. H. 423. Winslow V. King, 14 Gray 321; Parker 'Mussey v. Union Wharf, 41 Me. 34. V. Bennett, loi Mass. 388; Whiting v. ^ Philbrick v. Ewing, 97 Mass. 133. Gaylord, 66 Conn. 337; Manning v. 21 §§ 26-28.] EASEMENTS DEFINED AND DISTINUUiSHEI). 26. An easement in the grantor's other land will pass as appur- tenant to land conveyed if the deed shows an intention that it shall pass, though it is not legally attached to the land conveyed and is not necessary for its enjoyment. BuUdings on several adjoining lots covered the entire fronts of the lots, but left a space in the rear of each. The ground floors were for business purposes, and the floors above were flats. The space in the rear of the buildings was used by the tenants of the flats as an alleyway in carrying in supplies of various kinds and carrying out ashes and garbage, which could have been done through the front of the buildings only with great difiiculty. The owner of the buildings leased them ' ' together with all * * * lanes, alleyways, * * '" and advantages to the said grounds belonging or in anywise appertaining. ' ' It was held that the lease to the lessee created a right of way over the rear of the lots in favor of each of the separate lots, and that such ease- ment could not be released by the lessee. The easement created was not an easement in gross or a personal j)rivilege granted to the lessee which he could release without the consent of the lessor who was a party to its creation, and whose interest in the continuance of such easement is manifest under the terms of said leases.^ 27. An easement acquired by prescription passes by a subse- quent conveyance as appurtenant to the land for the benefit of which it has been used.^ Where an easement in a mill yard adjacent to a saw-mill has been acquired by prescription, and the owner conveys the mill with its appurtenances, evidence of the intention of the parties to the con- veyance that the grantee should not acquire the easement cannot prevail over the rights of the grantee as determined by the deed.' 28. An appurtenant easement cannot be conveyed by the party entitled to it separate from the land to which it is appurtenant. It can be conveyed only by a conveyance of such land. It inlieres in the land and cannot exist separate from it.* It cannot be con- verted into an easement in gross. ^ 'Robert v. Thompson, 40 N. Y. Supp. v. Rhodes, 7 Met. 322; Cadwalader v. 754; Hills V. Miller, 3 Paige, 254, 24 Bailey, 17 R. I. 495, 23 Atl. Rep. 20, 14 Am. Dec. 218; Huttemeier v. Albro, 18 L. R. A. 300. N. Y. 48; Cox V. James, 45 N. Y. 557. » Ackroyd v. Smith, 10 C. & B. 164, ''Voorhees v. Burchard, 6 Lans. 176. 187; Moore v. Crose, 43 Ind. 30; Boat- 'Voorhees v. Burchard, 6 Lans. 176. man v. Lasley, 23 Ohio St. 614; Tini- * Moore v. Crose,43 Ind. 30; Hankey cum Fishing Co. v. Carter, 6r Pa. St. V. Clark, no Mass, 262, 265; Phillips 21, 100 Am. Dec. 597. 22 APPURTENANT TO LAITD. [| 20. A permanent easement acquired by a tenant, as appurtenant to the demised land, enures to the benefit of the landlord, at the expi- ration of the tenancy.^ 29. When an easement passes by implication as appurtenant to land conveyed, it is upon the ground that it is a valuable adjunct to the land, and not because it is necessary to the beneficial use of that land.- A right of way passes with the land though it is not strictly necessary to the enjo)Tnent of the granted estate by the pur- chaser. Thus, where one having land fronting upon a public street purchases land in the rear of his land, which at the time had appur- tenant to it an easement of way over a private alley, he is not bound to relieve the alley from the servitude and impose it upon the land he already owned in front of that which he purchased.^ But upon the severance of an estate an easement in land retained to pass as appurtenant without mention must be essentially necessary to the proper enjoyment of the estate granted.* Thus the Court of Appeals of New York say : ' ' Nothing passes by the word ' appurtenances ' except such incorporeal easements or privileges as are strictly necessary and essential to the proper enjoyment of the estate granted. A mere convenience is not sufficient to thus create such a right or easement. ' ' ^ The Supreme Court of Con- necticut, in a recent decision, say : ' ' Implied grants of land, or of easements, or of any interest in land, are allowed here, when allo-\\ed at all, to a very much more limited degree than in the other States. These decisions are in accordance with what has always been the policy of our recording system, that the title to all interests in land shall appear on the land records, so that they may be easily and accurately traced. We think this plain policy should be adhered to, so that men will know what they have to trust, and 'Dempsey v. Kipp, 6i N. Y. 462. v. Mik, 24 Mo. App. 435, the necessity ■^ Dority v. Dunning, 78 Me. 381, 6 need not be absolute. Ogden v. Jen- Ati. Rep. 6; Pettingill v. Porter, 8 nings, 62 N. Y. 526; Green v. Collins, Allen, I, 85 Am. Dec. 671; Kent v. 86 N. Y. 246, 40 Am. Rep. 531; Griffiths Waite, 10 Pick. 138. v. Morrison, 106 N. Y. 165; Grubb v. °Zell V. First Universalist Society, Guilford, 4 Watts, 223, 245, 28 Am. 119 Pa. St. 390, 13 Atl. Rep. 447. Dec. 700; Evans v. Dana, 7 R. I. 306; ■•Manning v. Smith, 6 Conn. 289; Smith v. Smith, 62 N. H. 429, Brakely Whiting V. Gaylord, 66 Conn. 337; v. Sharp, 9 N. J. Eq. 9. Whaley v. Stevens, 27 S. C. 549, 4 S. 'Root v. Wadhams, 107 N. Y. 384, E. Rep. 145, 21 S. C. 223; Fitzpatrick 394, 14 N. E. Rep. 28:, per Peckham, J. 33 §§ 30-32. j EASEMENTS DEFINED AND DISTINGUISHED. can place confidence in the language of all conveyances as they find them recorded. " ' 30. A right of way appurtenant to land is appurtenant to every part of it. It inures to the benefit of all the owners' heirs, however many there may be, and, if the owner divides it into several lots, the grantee of each lot, however small, has an equal right over the servient land, so far as applicable to his part of the property, pro- vided the right can be enjoyed as to the separate parcels, without unduly increasing the burden upon the servient estate.^ Easements, like covenants that run with the land, " stick so fast to the thing on which they wait, that they follow every particle of it."^ 3 1 . But a reservation may be made in such terms that the right is not appurtenant to the whole of the remaining land of the grantor. Thus if a way is reserved for the benefit of a parcel of the grantor's remaining land particularly described or indicated, the way is appurtenant to that parcel only.^ 32. An easement cannot be extended or made to attach to land other than that for the benefit of which it was created.^ It can- ' Whiting V. Gaylord, 66 Conn. 337, 349, per Andrews, C. J. The ease- ment in the case was an easement of support, and inasmuch as it was not an open and a visible one and was not necessary to the enjoyment of the grantee's property, although conve- nient, it did not pass by the conveyance. 'Codling V. Johnson, 9 B. & C. 933; Miller v. Washburn, 117 Mass. 371; French v. Morris, loi Mass. 68; Whit- ney V. Lee, I Allen, 198, 79 Am. Dec. 727; Underwood v. Carney, i Cush. 285; Boland v. St. John's Schools, 163 Mass. 229; Lefavour v. McNulty, 158 Mass. 413, 33 N. E. Rep. 610; Regan v. Boston Gas Light Co., 137 Mass. 37; Ehret v. Gunn, 166 Pa. St. 384, 31 Atl. Rep. 200; Watson v. Bioren, i Serg. & R. 227, 7 Am. Dec. 617; Myers V. Birkey, 5 Phila. 167; Walker v. Gerhard, 9 Phila. 116; McMakin v. Magee, 13 Phila. 105; Morrison v. King, 62 III. 30; Garrison v. Rudd, 19 111. 558, 564; Dawson v. St. Paul F. & M. 24 Ins. Co., 15 Minn. 136, 2 Am. Rep. 109; Shields v. Titus, 46 Ohio St. 523, 22 N. E. Rep. 717; Sachs v. Cordes, n Ohio C. C. 145; Methodist Prot. Church v. Laws, 7 Ohio C. C. 2ir; Hills v. Miller, 3 Paige, 254, 24 Am. Dec. 218; Lansing v. Wiswall, 5 Denio, 213; Outerbridge v. Phelps, 13 Abb. N. C. 117; Currier v. Howes, 103 Cal. 4-3I, 37 Pac. Rep. 521, per Searls, C; Linkenhoker v. Graybill, 80 Va. S35. ^ Conan v. Kemire, Sir W. Jones' Rep. 245. ^ Leach v. Hastings, 147 Mass. 515, 18 N. E. Rep. 405. 'Stearns v. Mullen, 4 Gray, 151; Smith V. Porter, 10 Gray, 66; Cotton v. Pocasset Manuf. Co., 13 Met. 429, 433; Davenport v. Lamson, 21 Pick. 72: Gunson v. Healy, too Pa. St. 42; Shroder v. Brenneman, 23 Pa. St. 34?; McMakin v. Magee, 13 Phila. loq; French v. Marstin, 24 N. H. 440, 57 Am. Dec. 294; Reise v. Enos, 76 Wis. 634, 45 N. W. Rep. 414, 8 L. R. A. 617. IN GROSS. [§ 33. not be made to attach to other land which the owner of a dominant estate may subsequently acquire. One having a right of way appurtenant to certain land cannot upon a grant of that land reserve such right of way so as to make it apply to other land owned by the grantor. He cannot enlarge the right by reserving the right of way separate and distinct from the lot to which it belongs, to use in con- nection with another lot.' A land-owner conveyed part of his land to a stone company, together with a right to construct a line of railway over the remain- ing part to connect the land granted with a public railroad. It was held that this easement was appurtenant to the land granted, and the stone company had no right to permit its use by third persons to convey stone quarried on lands owned by them.^ III. In Gross. 33. An easement not appurtenant to any land is an easement in gross. In fact, the real distinction between an easement in gross and an ordinary easement is that in the one there is, and in the other there is not, a dominant tenement to which it is attached.^ It has sometimes been said that there is no such thing as an ease- ment in gross; that a privilege not appurtenant to land is not an easement.* The term " easement in gross " is used because it is a term in general use by legal writers, by judges and by the profes- sion; and as against such usage of the term it is useless to attempt to establish a refinement of definition intended to do away with the term. A right to profits a prendre may be either appurtenant to the grantee's land, or personal to him, and therefore in gross.' Easements in gross have some of the characteristics of appurte- nant easements, but they are attached to the person of the grantee rather than to his land. The burden of such easements rests upon ' Reise v. Enos, 76 Wis. 634, 45 N. Garrison v. Rudd, ig 111. 558, 564; W. Rep. 414, 8 L. R. A. 617. Koelle v. Knecht, 99 111. 396, 403; Wil- "Hoosier Stone Co. v. Malott, 130 loughby v. Lawrence, 116 111. 11, 4 N. Ind. 21, 29 N. E. Rep. 412. E. Rep. 356. 'Wagner v. Hanna, 38 Cal. 111,99 ''Goddard on Easem. (5th ed.) 9; Am. Dec. 354; Randall v. Chase, 133 Rangeley v. Midland R. Co., L. R. 3 JMass. 210; Whaley v. Stevens, 21 S. C. Ch. 306. 221, 27 S. C. 549, 4 S. E. Rep. 145; ' Huntington V. Asher, 96 N. Y. 604, Fisher v. Fair, 34 S. C. 203, 10 S. E. 48 Am. Rep. 652. Rep. 470; Moore v. Crose, 43 Ind. 30; 25 § 34. ] EASEMENTS DEFINED AND DISTINGUISHED. the land of the grantor in favor of the person of the grantee. There is a servient tenement, but no dominant tenement. These personal rights are somethino- more than mere revocable licenses. They confer an interest in the servient tenement which is at least an equitable charge or burden in favor of the grantee. ' 34, Whether a grant of an easement is in gross, or appurtenant to some other estate, may be determined by the relation of the ease- ment to such estate, or by the absence of any such relation. ^ In case the easement is a right of way, the terminus of the way is of especial significance, in the absence of any declaration in the deed of the intention of the parties in regard to the nature of the way.' A reservation of a right of way " so long as the grantor may Avish to use the same," is not a reservation in gross by reason of the terms of the reserving clause. In the light of the surrounding cir- cumstances, it was held to be the intention of the parties that the right of way should be appurtenant to the grantor's remaining estate.* But a deed to lessees of a right of way from the street to the rear of the store demised to them, to hold so long as they should occupy the building for the business then carried on by them, was held to create merely an easement in gross which terminated when they ceased to carry on the business as owners. The lessees having failed, a corporation was formed to carry on the business and the lessees were employed to assist in conducting it, one of them being chief manager, but it was held that the right of way did not pass to the corporation.^ The o^vner of land on which were springs, by indenture granted to another and his heirs the whole use of the springs, the latter covenanting to furnish the owner with a supply of water for liis ' Willoughby v. Lawrence, 116III. II, v. Knauff, 12 111. App. 115, iiS; Garri- 4 N. E. Rep. 356. son v. Rudd, 19 111. 55S. In this case -Dennis v. Wilson, 107 Mass. 591; the reservation was of the joint use of Russell V. Heublein, 66 Conn. 486, 34 a certain alley from a public highway Atl. Rep. 486. to a river. Neither terminus was on 'Peck V. Conway, 119 Mass. 546; the land of the party claiming the right. Dennis V. Wilson, 107 Mass. 591; Stearns It was properly held that the grant was V.Mullen, 4 Gray, 151, 155; Mendell v. in gross. Kuecken \. Voltz, no 111. Delano, 7 Met. 176; Kent v. Waite, 10 264, 270, per Craig, J. Pick. 138; White V. Crawford, 10 Mass, ''Kramer v. Knauff, 12 111. App. 115. 1S3, 187; Winston v. Johnson, 42 Minn. ' Hall v. Armstrong, 53 Conn. 554, 4 398, 45 N. W. Rep. 958; Louisville & N. Atl. Rep. 113. R. Co. V. Koelle, 104 111. 455; Kramer 2U IN GROSS. [§§ 35, 36. house, and it was provided that if water should not be supplied in the main aqueduct pipe for the space of a whole year at one time, the indenture should be void. It was held that the indenture created an easement in gross, which was terminated by its own limitation on a failure to supply water for a whole year.^ 35. If a right of way has neither of its termini on the land of the grantee, it is not appurtenant, but a way in gross. ^ A right of way appm-tenant is a right which inheres in the land to which it is appm"tenant, is necessary to its enjoyment, and passes with the land; while a right of way in gross is a mere personal privilege, which dies with the person who may have acquired it. Hence, a,lthough one has acquired such a right of way by deed to hun, his heirs and assigns, the same not being appurtenant to any land then owned by him, the right is merely a right in gross, and he cannot assign it to a purchaser of his land to which the way is not incident. Accordingly, where one alleged a i-ight of way from a pubhc road, bounding his plantation, across the defendants' land to a boat land- ing, and that the light of way was for the use of the plaintiff's plan- tation, it was held that this was an allegation of a right of way in gross. ^ An alleyway reserved by the grantor, both termini of which were disconnected from the land retained by the grantor, is not presumed to be appurtenant to such land, and is therefore a way in gross which does not pass by a conveyance of such retained land.^ A right of way not connected with the enjoyment or occupation of land is not annexed as an incident to it. If it is not so connected with the land, it is a way in gross and a personal right merely. It is not in the power of a grantor to create a right unconnected with the use and enjoyment of the land, and annex such right to the land. If he grants a right of way not connected with the use and occupation of the land conveyed, but for purposes wholly uncon- nected with it, the way is in gross, personal to the grantee, and wlU. not pass with the land to a subsequent purchaser.^ 36. The right is appurtenant and not in gross ivhen it appears that it was granted for the benefit of the grantee's land. Tlie owner 'Owen V. Field, I02 Mass. go. ' Whaley v. Stevens, 2i S. C. 221. -Fisher v. Fair, 34 S. C. 203, 13 S. E. ■'Garrison v. Rudd, 19 III. 558, 560; Rep. 470; Whaley v. Stevens, 21 S. C. Lathrop v. Eisner, 93 Mich. 599, 53 N. 221, 27 S. C. 549, 4 S. E. Rep. 145; W. Rep. 791. Garrison v. Rudd, 19 111. 558, 564; "Ackroyd v. Smith, 10 C. B. 164; Sanxay v. Hunger, 42 Ind. 44. Thorpe v. Brumfitt, L. R. 8 Ch. 650. 2r § 37.] EASEMENTS DEFINED AND DISTINGUISHED. of a spring executed an instrument, which declared that he did lease and let to his grantee, the right and privilege to him and his heirs and assigns forever to lay a pipe from the spring to his dwelling- house and farm. It was held that the instrument conveyed a right appurtenant to the grantee's land, and not a right in gross, for such seems to have been the intention of the parties to the deed, having reference to its language, and the surroimding circumstances.' In a partition of land, a right of way set to one over the land of another is to be taken as appurtenant as a matter of course.^ Where it appears by a fair interpretation of a reservation in a deed, in connection with surrounding circumstances, that it was the intention to reserve a right in the nature of an easement in the land conveyed, for the benefit of the grantor's other land, such right will be deemed appurtenant to such land, and not a right in gross. ^ The same principle applies in case of a grant of an ease- ment, and the easement so created will be construed to be appurte- nant to the grantee's land if the language of the deed and other surrounding conditions will allow of such a construction.* 37- The privilege of taking seaweed from a beach may be granted as appurtenant to a parcel of land not bounded by the beach, and in such case the easement is not in gross. The heirs of an owner of real estate Ts-hich was bounded in part by a sea beach, divided the estate by deed, and assigned to some of them parcels of land bounded by the beach, and to others different parcels. The deeds assigning the latter parcels granted the privilege of getting sea weed from the beach, below the lands granted by the deeds of the parcels on the beach. It was held that the privilege created was annexed to the land of the heirs and was not a right in gross. The court, in giving judgment, say: "Asa right or common in gross i^asses by deed, it is necessary to consider the terms of the grant, to ascertain the nature of the estate intended to be conveyed. And we think it is obvious, from the language of the deed, that the object of the grant was to benefit the owner of the particular estate, ' Bissell V. Grant, 35 Conn. 288. 'Winston v. Johnson, 42 Minn. 3gS, 'Bowen v. Conner, G Cush. 132; 45 N. \V. Rep. 958; Louisville & K. R. Davenport V. Lamson, 21 Pick. 72; Den- Co. v. Koelle, 104 111. 455; Metzger v. nis V. Wilson, 107 Mass. 591, 592, per Holwick, 31 W. Law Bui. 241. Wells, J.; Karmullerv. Krotz, 18 Iowa, ''Valentine v. Schreiber, 3 N. Y. App. 352; Hopper V. Barnes, 113 Cal. 636, D. 235, 73 N. Y. St. 838, 38 N. Y. Supp. 45 Pac. Rep. 874, approving Dennis v. 417. Wilson, supra. 28 IN GROSS. [§ 38. by furnishing her with a valuable dressing for her land, and not to give a personal right to her and all her heirs and their assigns, as many as there might be. The privilege, thus subdivided, would be of no personal use or advantage ; but, as appurtenant to the par- ticular estate, so that it might be used thereon, it would always enhance its value. "We are, therefore, of opinion that the grant created by this deed is an incorporeal hereditament, appurtenant to the estate to which it is annexed, and passes with it; and conse- quently it is a right which cannot be severed and sold separate from the estate, and thus subdivided ad, infinitum. Such a sale of the right to a stranger would either be a void grant or would extinguish the right."' 38. The rule that the rights of parties to a deed must be ascer- tained from its words is subject to the modification that sur- rounding circumstances may be taken into consideration, in order to ascertain the intention of the parties. Thus, where one granted a right of way across his land to three persons, who were owners of coal mines, to the land of one of them as located by an engineer of a railway company, to be used by the grantees and others for rail- road and switch purposes, although the land of one of the grantees alone was mentioned in the deed, yet as the switch was located across the lands of the other grantees, it was held that the right of way was appurtenant to their lands, as well as to the land of the other grantee, which was alone described.^ One owning four lots of land, over the rear of which he had laid out an alleyway ten feet wide, conveyed two of them nearest the street from which the alleyway entered, "excepting and reserving therefrom ten feet across the rear end of said premises for an alley. " At the time of the sale the owner did not occupy any part of the land but was a non-resident of the State. It was held that the situation and location of the property and the manner in which it was used, in connection vsdth the reservation of the deed, clearly indicated an intention to create an alley for a right of way, in the nature of an easement in the land so conveyed, for the benefit of the grantor's other adjoining land. It was doubtless the intention -of the grantor to sell his remaining lots, and the reservation of an 'Phillips V. Rhodes, 7 Met. 322, 324, 15 111. 581; Kramer v. Knaiift", 12 111. per Hubbard, J. App. 115; Karmuller v. Krotz, 18 Iowa, 'Louisville & N. R. Co. v. Koelle, 352, per Dillon, J.; White v. Crawford, 104111. 455; and see Hadden v. Shoutz, 10 Mass. 183, 188. 29 §§ 39, 40. j EASEMENTS DEFINED AND DISTINGUISHED. alley in the conveyance made was intended as an appurtenant to the remaining lots, which would be beneficial to any future pui'chaser and would enhance the price he might obtain. ^ 39. An easement in gross is neither assignable nor inheritable. ^ It is a mere personal interest in the land of another ; and it is so exclusively personal that the owner of the right cannot permit another person to enjoy it with him. Afl easement in gross cannot be made assignable or inheritable by any words in the deed by which it was granted. It is attached to the person to whom it is granted and cannot exist except as so attached.^ A grant of the right to lay down an aqueduct and to draw water therefrom for the use of the grantee, without words of inheritance and without language showing an intent to convey an assignable interest, does not convey such an interest.* 40. An appurtenant easement cannot be severed ftom the land, and made a right in gross assignable and inheritable. If a way be granted, as incident to land conveyed by the same deed, for all purposes connected with the occupation of the land, the way is^ appurtenant to the land ; but if in such deed a way be granted to the owner of the land conveyed ' ' for all purposes, ' ' the grant of the way is more amj^le and extended than in the first instance, and the way may be used for purposes unconnected with the enjoyment of the land. Such a way is granted in gross, is personal only, does not pass as incident to the land and cannot be assigned. " It is not in the power of a vendor to create any rights not connected with the use or enjoyment of the land, and annex them to it, nor can the owner of land render it subject to a new species of burden, so as to bind it in the hands of an assignee. ' Incidents of a novel kind can- not be devised and attached to property at the fancy or caprice of ' Kuecken v. Voltz, no 111. 264. Whaley v. Stevens, 27 S. C. 549, 4 S. 'Ackroyd v. Smith, 10 C. B. 164; E. Rep. 145; Spensley v. Valentine, Wagner v. Hanna, 38 Cal. in, gg Am. 34 Wis. 154; Post v. Pearsall, 22 Wend. Dec. 354; Louisville & \. R. Co. v. 425, 432; Hall v. Armstrong, 53 Conn. Koelle, 104 111. 455; Garrison v. Rudd, 554, 4 Atl. Rep. 113. 19 111. 558; Koelle V. Knecht, gg 111. ^Boatman v. Lasley, 23 Ohio St. 396; Boatman v. Lasley, 23 Ohio St. 614; Metzger v. Holwick (Ohio) 31 W. 614; Tinicum Fishing Co. v. Carter, L. Bui. 241; Moore v. Crose, 43 Ind. 61 Pa. St. 21, 38, 100 Am. Dec. 5g7; 30; Hoosier Stone Co. v. Malott, 130 Cadwalader v. Bailey, 17 R. I. 495, 23 Ind. 21, 24, 29 N. E. Rep. 412, see Atl. Rep. 20; Fisher v. Fair, 34 S. C. § 42. 203, 13 S. E. Rep. 470, 14 L. R. A. 333; * Wilder v. Wheeler, 60 N. H. '^ci. 30 IN GROSS. [§§ 41, 42. any owner. ' ' This principle is sufficient to dispose of the present case. It would be a novel incident attached to land, that the owner aiHi occupier should for pui-poses wholly unconnected with that land, and merely because he is the owner and occupier, have a right of road over other land ; and it seems to us that a grant of such privi- lege or easement can no more be annexed so as to pass with the land than a covenant for any collateral matter. ' ' ^ 4 1 . But a right to profits a prendre though in gross is assignable. "A very marked distinction also exists between a way in gross and an easement of profit d prendre ; such as the right to enter upon the lands of another, and remove gravel or other materials therefrom. The latter so far partakes of the nature of an estate in the land itself, as to be treated as an inheritable and assignable interest. ' ' ' Such a right is an estate in the land itself and it has been ques- tioned whether such a right can properly be called an easement. "If, however, a right to take soil, gravel, minerals, water from a spring, and the Hke, from another's land may properly be denomi- nated an easement, then it is proper to say that an easement in gross, for such it might doubtless be constituted, might be both assignable and inheritable. " * 43. Insogie.States, however, an easement in gross may be created by grant so as to be assignable or inheritable as when the language of the grant shows unmistakably that the intention is that the right shall be enjoyed by the grantee, his heirs and assigns. " The law is settled in Massachusetts, by a series of decisions, that a right of way may be as well created by a reservation or exception, in the deed of the grantor, reserving or retaining to himself and his heirs a right of way, either in gross, or as annexed to lands owned by him, so as to charge the lands granted with such easement and ser- vitude, as by a deed from the owner of the land to be charged, granting such way, either in gross or as appurtenant to other estate of the grantee." ' ^ I^eppell V. Bailey, 2 Myl. & K. 517, '• Bowen v. Conner, 6 Cush. 132, 137, per Lord Brougham. per Shaw, C. J.; citing White v. Craw- '^Ackroyd v. Smith, 10 C. B. 164, ford, 10 Mass. 183, and other Massa- 188, per Cresswell, J. chusetts cases in which the rule has '§52. Boatman v. Lasley, 23 Ohio been rather assumed and taken for St. 614, 618, per Mcllvaine, J.; see, also, granted than discussed and formally Post V. Pearsall, 22 Wend. 425, 432. decided; approved in Goodrich v. Bur- *Cadwalader v. Bailey, 17 R. I. 495, bank, 12 Allen, 459, 90 Am. Dec. 161; 500, 23 Atl. Rep. 20, per Tillinghast, J. French v. Morris, loi Mass. 68; Owen 31 § 42.] EASEMENTS DEFINED AND DISTINGFISHED. Where the owners of several mills and mill privileges on the same waterfall apportioned the water among themselves, and a certain part was assigned to the owner of a fulling mill, for the use of that mill, or for other machinery requiring equal power, it was held that the right was not inseparably annexed to the biiilding or site at which the water was then used, but that it might be used and enjoyed at any convenient site, at which a mill could be so placed as to take an equal quantity of water, without any greater injury to the other mill owners ; and, therefore, that the sale by the owner of the fullinff mill, of the land across which the water used to run to the fulling mill, in an artificial channel, did not extinguish the full- ing mill right, but that the owner of the fulling mill might convey the right to another mill owner for the use of the fulling mill or for any other machinery.* The right to take water from a well or spring is an interest in land though not & profit a 2yr'endre. " The water itself may not be the subject of property, but the right to take it and to have pipes laid in the soil of another for that purpose, and to enter upon the land of another to lay, rejjair and renew such pipes, is an interest in the realty, assignable, descendible and devisable."^ To like effect Judge Curtis said: " I know of no rule of the common law which prohibits grants of the incorporeal right to divert water from being made in gross. If I have a spring, I may sell the right to take water from it by pipes, to one who does not own the land across which the pipes are to be carried, and I may either restrict the use to a particular house, or not, as I please. * * * Incorporeal rights may be inseparably annexed to a particular messuage or tract of land, by the grant which creates them, and makes them incapable of separate existence. But they may also be granted in gross, and afterwards, for piu-poses of enjoyment, be annexed to a messuage or land, and again severed therefrom by a conveyance of the mes- suage or land, without the right or a conveyance of the right with- out the land. " ^ V. Field, 102 Mass. 90, 108; Hankey v. ' Hurd v. Curtis, 7 Met. 94. Clark, no Mass. 262; followed in Wis- -Goodrich v. Burbank, 12 Allen, 459, consin, Poull V. Mockley, 33 Wis. 482, 461, go Am. Dec. i6i; approved in the court saying: " We cannot see any French v. Morris, loi Mass. 68. substantial reason for holding that an * Lonsdale Co. v. Moies, 21 Law Rep. easement in gross cannot be assigned 658, 664. or transferred." 32 IN GROSS. [§ 43. 43. An easement in gross may be in perpetuity, if so expressly made. An easement granted to a city, ' ' its snccessors and assigns, ' ' is capable of assignment, and is, therefore, in perpetuity, though not technically in fee, because an easement in fee must be appurte- nant to land held in fee.* A water right granted in gross does not become technically ajjpurtenant to land and a mill, upon and for which it is subse- quently used by the grantee thereof ; but where such water power is taken and applied to run a mill afterwards acquired by the owner of the power, and afterwards, while the water power is so being used, the owner conveys the premises by raetes and bounds without mentioning the water right, the right may pass therewith as parcel thereof, if such appears to have been the intention of the parties. " This water right was created and existed as a substantive and inde- pendent right, in gross, before the acquisition by the owners thereof of the lots mentioned in the mortgages. It was an easement with- out any fixed or limited dominant estate, whatever property it might be used with or upon, being such estate for the time being; and although it has since been taken to said lots, and there applied to run a mill and machinery thereon, and thereby become, so to speak, in fact appurtenant to such property, still it may be again separated therefrom and taken and applied elsewhere. The water right was granted without any restriction or limitation as to the nature or place of its use, and therefore the power may be applied as and where the circumstances vnll permit, and such application may be changed from time to time, both as to use and place at the pleasure of the owner. ' ' ^ The owner of a spring and aqueduct leading therefrom entered into an indenture with the occupant of a house as a life tenant, which provided that the latter, his heirs and assigns, might draw from the aqueduct as much water as should be necessary for the supply of the families resident in the house, so long as water should run from the spring through the aqueduct. After the death of the life tenant, his heirs conveyed this right to his widow, who con- tinued to reside in the house. It was held that the indenture con- veyed an easement in gross, which could be conveyed by the heirs of the life tenant, and enforced by an assignee residing in the house. ^ ' Pinkum v. Eau Claire, Si Wis. 301, 'Amidon v. Harris, 113 Mass. 59, 51 N. W. Rep. 550. and see Hankey v. Clark, no Mass. ^ Bank v. Miller, 6 Fed. Rep. 545, 550. 262. [3] 33 §§ 44, 45. J EASEMENTS DEFINED AND DISTINGUISHED. 44, An easement is personal when it is expressly or by implica- tion limited to the life of the person who is to enjoy it. Thus where two persons held land in partnership under agreement that mills thereon should be kept up during their joint lives and the life of the survivor, at their joint expense, and, on one of them dying, the mill site was partitioned to the survivor, and the rest of the tract to heirs of the deceased, any easement ^iiich the survivor might have, under the agreement, to overflow the lands of the heirs, was personal, and terminated at his death. ^ But an easement such as right of way may be appurtenant to a life estate in land, for instance, a dower estate, and will then expire with the estate.^ In such case the easement is appurtenant and not in gross. " Whether a way is appurtenant to land depends upon its relation to the land in respect of use, and not upon any correspond- ence with the title of the owner in respect of duration. A way of necessity which rests upon implied grant is always appurtenant, although limited by the continuance of the necessity to which it owes its existence. The limitation of a right in express terms, to the life of a person, may afEord some ground of inference that it was intended as a personal right; but that ground of inference would be overcome if the nature of the right and its apparent use were such as to indicate that it related to the convenience or occu- pation of real estate. When, however, the limitation results from omitting words of inheritance by an inartificial reservation, the inference in that direction, if any can be drawn therefrom, must be very slight. ' ' ^ An easement is personal or in gross in case it is reserved by a grantor for the benefit of a lessee to whom the easement was neces- sary, or to whom the grantor had given it ; but in such case the easement would last only during the continuance of the lease.* 45. In those States in which the word " heirs " is not necessary to the granting of an estate in fee, an easement is not personal because such word is not used, if it appears from the deed that the right to the use of the easement was not to be limited to the lifetime of the party who was to enjoy it. Thus, where one granted to the ' McDaniel v. Walker (S. C), 24 S. E. 'Dennis v. Wilson, 107 Mass. 591, Rep. 378, and see Jamaica Pond Aque- 594, per Wells, J. duct Co. V. Chandler, 9 Allen, 159, 170. ■'Russell v. Heublein, 66 Conn. 486, ^ Hoffman v. Savage, 15 Mass. 130; 34 Atl. Rep. 486. Dennis v. Wilson, 107 Mass. 591, 594. 34 IN GROSS. [§ 46. owner of a cheese factory the right to use the waters of a spring in carrying it on, ' ' so long ' ' as the same shall be used for running a cheese factory, the instrument was declared to create an easement which was not personal to the grantee, but might be enjoyed by a successor in title. The purpose of the instrument was to secure water for the factory, and notwithstanding it was in the form of a lease, and contained no words of inheritance, a subsequent pur- chaser of the factory was entitled to enjoy the easement.^ A clause in the granting part of a deed creating an easement by the word ' ' agree, ' ' without the use of the word ' ' heirs, ' ' is con- trolled by the habendum which follows in which the limitation is in fee, and consequently the easement is in fee.^ 46. A way is in gross when the use of it is granted to one, and certain other persons designated, to whom he may grant an ease- ment over the same way. Thus, where the owner of a lot grants the use of a private alleyway, entirely upon his lot, to an adjoining property owner, his heirs and assigns, and provides that the grantee shall have the right to convey the privilege granted to certain persons named, the grant is one in gross, and does not become appurtenant to the land of the grantee, and he cannot convey the easement thereby obtained to persons other than those named in the grant, and he cannot invest others with the powers conferred upon him by deed of indenture.^ A devise by a father to his son, his heirs and assigns, of a portion of his farm, " with free privilege of taking what coal he wants for his own use or plantation off the home plantation," on which there was an open mine, was held to confer a personal privilege upon the son, which did not pass to his successors in title to the land devised to him. " The language which is descriptive of the privilege limits 'Whitney v. Richardson, 59 Hun, coupled with an interest, does not sur- 601, 13 N. Y. Supp. 85i, and see Kar- vive, nor can it be exercised after the muller v. Krotz, i8 Iowa, 352. donor of the power parts with his title ' Hogan V. Barry, 143 Mass. 538, 10 to the land to be subjected to such N. E. Rep. 253. easement. In such a case the donee ^Fisher v. Fair, 34 S. C. 203, 210, 13 of the power acts as a mere attorney in S. E. Rep. 470. Mclves, J., delivering fact, and must convey in the name of the opinion said; "Assuming that the his principal. Hence when the prin- owner of land having the right to con- cipal is dead, or has parted with his vey to another a right of way in gross title to the land, neither he nor his over his land, may invest a third per- attorney in fact can fix any burden or son with power to make such convey- servitude upon the land." ance, yet such a power when not 35 §47.] E iS!EJIE>.TS DEFINED AXD DISTINGUISHED. the exercise and enjoyment of it to the person on whom it was bestowed, and negatives any impHcation tliat it is appurtenant to the land devised to him. It is the coal he might want for his own use, etc. , that could be taken from the home plantation by -virtue of this privilege, and not the coal which his heirs or assigns might want for their ' use or plantation. ' The inclusion of heirs and assigns in the designation of the persons who were to enjoy the land devised, and the exclusion of them from the enjoyment of the coal privilege were not accidental, but intentional. The failure to expressly charge the home plantation with a permanent servitude in favor of the land devised to the son is confirmatory of this view. A plain distinction exists between such a ser-^dtude and a personal privilege to one devisee to take coal for his own use from the land of another." * 47. An easement is never presumed to be in gross when it can fairly be construed to be appurtenant to some estate. "If it be in its nature an appropriate and useful adjunct of the land conveyed, having in view the intention of the grantee as to its use, and there being nothing to show that the parties intended it to be a mere per- sonal right, it should be held to be an easement appurtenant to the land, and not an easement in gross, the rule for the construction of such grants being more favorable to the former than to the latter class." - ' Youghiogheny River Coal Co. v. a Private Road, i Ashm. 417, 421; Hop- Pierce, 153 Pa. St. 74, 77, 25 Atl. Rep. per v. Barnes, 113 Cal. 636, 41 Pac. 1026, per McCoUum, J. Rep. 874; Boatman v. Lasley, 23 Ohio ' Cadwalader v. Bailey, 17 R. I. 495, St. 614; Metzger v. Holwick, 31 W. L. 499, 23 Atl. Rep. 20, 14 L. R. A. 300, Bui. 241; Winston v. Johnson, 42 Minn, per Tillinghast, J.; to like effect, Mc- 398, 45 N. W. Rep. 958; Valentine v. Mahonv. Williams, 79 Ala. 288; Dennis Schreiber, 3 N, Y. App. D. 235, 240, 73 V. Wilson, 107 Mess. 591; Smith v. N. Y. St. 838; 38 N. Y. Supp. 417; Kent Porter, 10 Gray, 66; Louisville & N. R. Furniture Manuf. Co. v. Long (Mich.), Co. V. Keolle, 104 111. 455; White v. 69 N. W. Rep. 657. In McMahon \-. Crawford, 10 Mass. 183; Kuecken v. Williams, 79 Ala. 288, 2gi, it was said: Voltz, no 111. 264; Kramer v. Knauff, "The inquiry in these cases has gener- 12 111. App. 115; Oswald v. Wolf, 126 ally been whether the servitude or re- 111. 542, 19 N. E. Rep. 28, 25 111. App. striction imposed vpas of such a nature 501; French v. Williams, 82 Va. 462; as to operate as an inducement to pur- Sanxay v. Hunger, 42 Ind. 44; Reise chasers, and, if so, the inclination of V. Enos, 76 Wis. 634, 45 N. W. Rep. the courts has been to construe them 414, 8 L. R. A. 617; Spensley v. as appurtenant to the estate, and in- Valentine, 34 Wis. 154; Wagner v. tended for its protection, rather than as Hanna, 38 Cal. in, 99 Am. Dec. 354; personal to the grantor." Taylor v. Dyches, 69 Ga. 455; Case of 36 IN GROSS. [g 48. A contract reciting that in consideration that the grantees were erecting a saw mill near defendants' mill, and a payment of cash, the defendants do " grant, bargain, sell, etc., to the parties of the second part, their heirs and assigns, forever," the undivided one- half of a railroad side track, " to the sole and only proper use, benefit, and behoof of the said parties of the second part, their heirs and assigns, forever, " is a conveyance of a right of way appurte- nant to the grantees' mill, and not a mere license.' 48. A right of way, whether granted or reserved, is not in gross when there is anything in the deed or the situation of the property which indicates that it was intended to be appurtenant to the land retained by the grantor or granted by him.' Thus, where a person conveys a part of his land by a deed, ' ' reserving from said grant the perpetual right of way for a private way through on the south side of said lot," the right of way thus reserved is appurtenant to that portion of the land retained by the grantor, the word " heirs " not being necessary in such a reservation to create an easement run- ning with the land.^ And so a reservation in the words, " except- ing and reserving a right of way to pass and repass over said land with teams and otherwise, on the northerly side of said premises, not exceeding eight rods from old Worcester road," created an easement appurtenant to the land remaining in the grantor.^ When in the deed itself there is no declaration of the intention of the parties in regard to the nature of the way, whether it is a per- sonal privilege or is appiu*tenant to the land of the person upon whom the privilege is conferred, this may be determined by the relation of the way to such land or its want of any relation.^ In a deed to a railroad of a right of way, a reservation of a pass- way at grade over the railroad, for the purpose of connecting two tracts of land belonging to the grantor which were separated by the railroad, is a perpetual easement annexed to the land which was made accessible by the passway. The right of way is not a per- sonal one to the grantor limited to his lifetime.^ Where the owner of a tract of land sells a part of it reserving a ' Kent Furniture Manuf. Co. v. Long * Dennis v. Wilson, 107 Mass. 591. (Mich.), 6g N. W. Rep. 657. 'Dennis v. Wilson, 107 Mass. 591; ' Lathrop v. Eisner, 93 Mich. 599, 53 Mendell v. Delano, 7 Met. 176; Brown N. W. Rep. 7gi; Thorpe v. Brumfitt, L. v. Thissell, 6 Cush. 254. R. 8 Ch. 650, 657. 'White v. New York & N. E. R. Co., 'Lathrop v. Eisner, 93 Mich. 599, 53 156 Mass. 181, 30 N. E. Rep. 612. N. W. Rep. 791. 37 § 49.] EASEMENTS DEFINED AND DISTINGUISHED. right of way across it, and in the same deed grants to the purchaser a right of way across the unsold half, these rights are annexed and appurtenant to the respective parcels, each becoming the dominant parcel in respect to the right of way secured across the other. ^ lY. Profit a prendre. 49. A right to profit a prendre is a right to take something which is the produce of the land, and is in its nature an incorporeal right incapable of livery, though it is imposed upon corporeal or tangible property. It may be appurtenant to a dominant tenement in the nature of an easement; or it may be, and perhaps more fre- quently is, a right in gross. When this right is appurtenant, it passes by any conveyance that is sufficient to convey the dominant tenement; and it passes with that by descent. Like an easement it is inseparable from the dominant tenement.^ It is not an easement within the usual definition of that right, as being a privilege with- out profit,' but it is within the definition of that right as stated by some authorities.^ " A right of profit a prendre, which may be held apart from the possession of land, differs therein from an ease- ment, which requires a dominant tenement for its existence. But a right oi profit a prendre, if enjoyed by reason of holding another estate, is regarded in the light of an easement appurtenant to such other estate. And, says Mr. Justice Strong,' some modem deci- sions have called it an easement, though it was a privilege on another man's land with profit. It is immaterial, however, whether we call it an easement or a right of profit d prendre annexed to land. It is 'Wagner v. Hanna, 38 Cal. in, gg ent if his remaining land had not been Am. Dec. 354, per Crocliett, J., dissent- connected with the land conveyed, ing. The majority of the court in this "^ Drury v. Kent, Cro. Jac. 14; Bailey case held that inasmuch as the grantor v. Stephens, 12 C. B. N. S. 91; Goodrich made no mention of the estate to which v. Burbank, 12 Allen, 459, 461, 90 Am. the right of way reserved was to be ap- Dec. i6i ; Pierce v. Keator, 70 N. Y. 419, purtenant the right reserved was a 421, 26 Am. Rep. 612. right in gross and not appurtenant to ^§1. the grantor's remaining land. This de- ''Ritger v. Parker, 8 Cush. 145, 54 cision seems to be wrong and the dis- Am. Dec. 744, per Shaw, C. J.; Owen senting opinion right. It seems to be v. Field, 102 Mass. 90, 103, per Ames, obvious that the right reserved was J.; Post v. Pearsall, 22 Wend. 425. intended to be annexed to the grantor's 'Huff v. McCauley, 53 Pa. St. 206, remaining land and to become appur- 209, 91 Am. Dec. 203, tenant to it. It would have been differ- 38 PROFIT A PEENDEE. [§ 50. the same in nature, and is siicli a right as can be annexed to other land by express grant, and will pass as appurtenant to it. " ^ A right to profits a prendve, when attached to other land, as an appurtenance, is in the nature of an easement, but when not attached to other land is a right in gross. When such a right to the pro- ducts or proceeds of land is not granted in favor of some dominant tenement it cannot properly be said to be an easement but an interest or estate in the land itself.^ Thus, where one conveyed land border- ing on a mill pond belonging to him, and also as an incident to the conveyance granted the exclusive right to take ice from the pond, it was held, that the right was an appropriate adjunct of the land conveyed, and became an appurtenance thereto, in the nature of an easement, and upon a conveyance by the grantee passed with the land withoiit particular mention as an appurtenance.' 50. A right to profits a prendre, acqtiired. by grant or prescrip- tion, as appurtenant to certain lands, cannot be used as a right in gross, wholly unconnected with that land. Thus a claim of a right by the owners or occupiers of a certain close, as appurtenant to such close, to enter upon the land of another and cut and carry away all the wood growing there, does not justify their cutting down the wood and selling it at their pleasure, wholly irrespective of the close to which the right is appurtenant. A prescriptive right in the owner of an estate to take, as appurtenant to that estate, all the thorns growing upon the land of another, to be used at the house of such owner, is a right appurtenant to that estate, a profit to be taken in the land of another, to be used upon the land of the party claiming the profit.* Such a right must be used for the benefit of the estate to which it is appurtenant. It cannot be used for the benefit of the individual owner of that estate, as it might in cases where the grant is in gross. The owner of the dominant tenement cannot claim as appurtenant to it a profit wholly unconnected with the enjoyment of it.' ' Grubb V. Grubb, 74 Pa. St. 25, 33, McCauley, 53 Pa. St. 206, 209, 91 Am. per Agnew, J. Dec. 203; Grubb v. Grubb, 74 Pa. St. 'Huntington v. Asher, 96 N. Y. 604, 25, 33. reversing 26 Hun, 496; Taylor v. Mil- ^ Huntington v. Asher, 96 N. Y. 604; lard, 118 N. Y. 244, 23 N. E. Rep. 376, 48 Am. Rep. 652. 6 L. R. A. 667; Post V. Pearsall, 22 *Dowglass v. Kendal, Cro. Jac. 256. Wend. 425; Pierce v. Keator, 70 N. Y. ^Bailey v. Stephens, 12 C. B. N. S. 419, 421, 26 Am. Rep. 612; Huff v. 91, 109. 39 §§ 51, 52.] EASEMENTS DEFINED AND DISTINGUISHED. 51. On the other hand, if the right is not appurtenant but in gross, it does not pass by a conveyance of the land. A deed con- veying a strip of land through a farm to a railroad company for a right of way, contained a reservation of ' ' the privilege of mowing and cultivating the surplus ground of said strip of land, not required for railroad purposes." At the time of the conveyance there was a mortgage on the farm, which was subsequently foreclosed. One who succeeded to the title of the purchaser at the foreclosure sale entered upon the railroad land and cut and removed the wheat growing thereon. In an action of trespass for such entry it was held, that the reservation in the deed to the railroad company was not an easement appurtenant to the remaining portion of the farm, but a right to proiits in the land conveyed, reserved to the grantors personally, not as owners of or for the benefit of the farm; and such right therefore, did not pass by the deed on foreclosure sale. " From the nature of the right," say the Court of Appeals of New York, " we can see no connection between it and the ownership of the farm. The right to mow and cultivate this strip was in no way necessary to, or even useful, to the remainder of the farm, and it was not, therefore, appurtenant. It might have been regarded in the nature of an easement if the reservation had been made to the grantor as owner of the farm, or on account of being the owner, but the language reserves the right to the parties of the first part, not to their heirs and assigns, nor to the owners of the farm, nor for the benefit of the farm or such owners. As the terms of the reservation indicate a personal privilege, and as there is nothing in the nature of the right reserved connecting it in any manner with the ownership or use of the remainder of the farm, there seems no alternative but to apply the established rules and recognized legal distinctions to the transaction. ' ' ^ 53. A right of profit a prendre when in gross is an inheritable and assignable interest, partaking of the nature of an estate in the land itself.^ It may be an estate for the life of the person having ' Pierce V. Keator, 70 N. Y. 419, 422, Post v. Pearsall, 22 Wend. 425, 432; 26 Am. Rep. 612, per Church, C. J. Leyman v. Abeel, 16 Johns. 30; Taylor ^Palmer's Case, 5 Coke, 24*/ Wick- v. Millard, 118 N. Y. 244, 23 N. E. Rep. ham V. Hawker, 7M. &W. 63; Muskett 376, 6 L. R. A. 667; Pierce v. Keator, V. Hill, 5 Bing. N. C. 694; Bailey v. 70 N. Y. 419, 421, 26 Am. Rep. 612; Stephens, 12 C. B. N. S. 91; Goodrich v. Huntington v. Asher, 96 N. Y. 604, 610, Burbank, 12 Allen, 459, 461, 90 Am. 48 Am. Rep. 652; Huff v. McCauley, 53 Dec. 161; Hill V. Lord, 48 Me. 83, 96; Pa. St. 206, 209, 91 Am Dec 203- 40 PEOFIT A PEENDEE. [§ 53. the right, or for the lives of the occupants of certain land, or an estate for a definite or indefinite term. It is always assignable and in proper cases inheritable. The right may in terms be granted or reserved to one, his heirs and assigns, and then it is in terms in- heritable and assignable.* 53. Profits a prendre can be acquired only by grant or pre- scription. When acquired by prescription they are most generally, thotigh not universally, prescribed for, not in gross, but as incident to land, for the benefit of which and in connection with which, the rights are to be exercised.^ In other words, if one would pre- scribe for such a right in another's land, as authorizes the taking or having what is, by legal intendment, a profit therein, he should allege it as pertaining to some particular land, owned by himself, and that he and all those whose estate he has in the land, have from tune immemorial, or for the prescriptive period, exercised the right which he now claims.^ Common appurtenant and in gross may arise either by grant or by prescription.* Common appendant always implies prescription, , but in pleading common appendant it is not necessary to add the usual form of prescribing. Common appendant, usually consisting of common of pasture, is essentially part and parcel of an ancient tenement. ^ There is a distinction between a common appendant and a com- mon appurtenant, in this, that if the commoner purchases part of the land in which he has common appendant, the right is not extin- guished, but will be apportioned.' But a common appurtenant cannot be extinct in part and be m esse for part, by act of the par- Gloninger v. Franklin Coal Co., 55 Pa. der v. Bailey, 17 R. I. 495, 500, 23 St. I, 14, 93 Am. Dec. 720; Grubb v. Atl. Rep. 20. Grubb, 74 Pa. St. 25, 33; Boatman v. ' Merwin v. Wheeler, 41 Conn. 14, Lasley, 23 Ohio St. 614, 618; Cadwala- 25; Waters v. Lilley, 4 Pick. 145, 16 der V. Bailey, 17 R. I. 495, 501; 23 Am. Dec. 333. All. Rep. 20. 'Littlefield v. Maxwell, 31 Me. 134, 'Welcome v. Upton, 6 M. & W. 536; 50 Am. Dec. 653. Goodrich v. Burbank, 12 Allen, 459, ■'Cowlam v. Slack, 15 East, 108, 10 461, 90 Am. Dec. 161, per Foster, J.; Eng. Rul. Cas. 265. Post V. Pearsall, 22 Wend. 425; Leyman 'Co. Litt. 122a, Hargrave's ny Tyr- V. Abeel, 16 Johns. 30; Pierce V. Keator, ringham's Case, 4 Coke Rep. 361^, 10 70 N. Y. 419, 421, 26 Am. Rep. 612; Eng. Rul. Cas. 252. Tinicum Fishing Co. v. Carter, 61 Pa. ' Tyrringham's Case, 4 Coke Rep. , St. 21, 39, 100 Am. Dec. 597; Cadwala- supra. 41 §§ 54, 55. J EASEMENTS DEFINED AND DISTINGUISHED. ties. If a commoner purchases a part of tlie common appurtenant, liis right of common is extinct.' 54. A profit & prendre in the soil of another cannot be claimed by custom.^ Thus a claim to enter upon the land of another and take gravel, stones, and sand from the seashore, made in behalf of the inhabitants of a township, is without foundation. "A claim by the inhabitants of the township is a claim by persons who are incapable of taking a grant, not being a corporation; neither do they claim in a que estate — alleging the right to be in the owners of an estate of wliich they are the occupiers. " ^ In the case from which the quotation is made, Willes, J., also said: " I am of the same opinion ; as far as the right is claimed by custom, if any such exist, it is clearly bad. The distinction is well established, that by custom you may claim an easement to be enjoyed over the land of another, but you cannot claim a profit out of the land. The only difficulty in these cases is, to ascertain what is a profit d prendre, and what an easement. All the authorities which have a tendency to show that there may be a custom for a profit d prendre in alieno solo must be considered as overruled. ' ' In like manner it was held in New Hampshire that the inhabit- ants of a town or village cannot claim to take sand for the purpose of making mortar from the land of another, by right of custom.* 55. Water is not considered as produce of the soil, so as to make the right to take it a profit ^ prendre in alieno solo ; ^ whether it 'Bell V. Ohio & P. Ry. Co., 25 Pa. ^ Constable v. Nicholson, 14 C. B. St. 161, 64 Am. Dec. 687. N. S. 230, 240, per Erie, C. J. ^ Gateward's Case, 6 Coke, 591^, Cro. ■* Perley v. Langley, 7 N. H. 233; Jac. 152, 10 Eng. Rul. Cas. 245; Grim- Nudd v. Hobbs, 17 N. H. 524. steady. Marlowe, 4 T. R. 717; Consta- 'Manning v. Wasdale, 5 Ad. & El. ble V. Nicholson, 14 C. B. N. S. 230; 758, 763, where Lord Denman said, "it Blewett V. Tregonning, 3 Ad. & El. 554; is not consistent with ordinary language Rogers v. Brenton, 10 Q. B. 26, 60; to call the taking of water a projit Waters v. Lilley, 4 Pick. 145. 16 Am. a prendre" and "Williams, J., said: "I Dec. 333; Perley v. Langley, 7 N. H. think the right claimed is a mere ease- 233; Pearsall v. Post, 20 Wend, iii; ment." In Weekly v. Wildman, i Ld. Post V. Pearsall, 22 Wend. 425; Smith Raym. 405, 407, Blencowe, J. said: V. Floyd, 18 Barb. 522, 529; Hill v. "Inhabitants may have a custom to Lord, 48 Me. 83; Moor v. Gary, 42 Me. have pot water which is an interest and 29; Littlefield v. Maxwell, 31 Me. 134. 50 not barely an easement; but Powell, J., Am. Dec. 653; Merwin v. Wheeler, 41 denied that and said that is only an Conn. 14; Cobb v. Davenport, 33 N. J. easement." See, alpo, Wickham v. L. 223, 97 Am. Dec. 718; Nudd V. Hobbs, Hawker, 7 M. & W. 63; Race v. Ward 17 N. H. 524; see § 82. 4 El. & Bl. 702; Bissell v. Grant •^^ 42 PEOFIT A PEENDEE. [§ 56. be water in an open running stream, or water in a spring or well; *' for water," says Blackstone,' " is a movable wandering thing and must of necessity continue common by the law of nature. ' ' Such a right is an easement only and may be claimed by custom. " The spring of water is supplied and renewed by nature ; it must have ilowed from a distance by an underground channel; and, when it issues from the ground, till appropriated for use, it flows onward by the law of gravitation. " It is no part of the soil, like sand or clay or stones; nor the produce of the soil, like grass or trees. ^ " Thus, the right to enter upon the close of another, and take water for domestic purposes from any natural fountain, as a pond,^ or a run- ning spring,* has been held to be an easement only, sustainable by proof of custom by the inhabitants. The groimds upon which these decisions rest, are that running water is not a product of the soil, whether above or below the surface ; and that it does not remain for any appreciable period of time in any one place. The courts, in these eases, expressly affirm that the right to water in wells, or cis- terns, would be an interest in the land, or a right to a profit a prendre. ' ' ^ The privilege of watering cattle at a pond or brook or of taking the water for domestic purposes is a mere easement and not & profit a prendre.^ But in case water is made the subject of sale in gross, as a thing of value, or it is stored in wells or cisterns, it may be regarded as a species of profit d prendre, and may be the subject of a separate transfer.' 56. The right to take seaweed from, the shore is a right to a profit In the soil. This right may be conveyed by the owner of an estate, without conveying the soil, or the right may be acquired by pre- scription. A town in its corporate capacity might acquire such a right by grant, but not by prescription unless corporate acts are shown. A lost grant to the town can be presumed only from cor- Conn. 288; Goodrich v. Burbank, 12 * Race v. Ward, 4 El. & Bl. 702. Allen, 459, 461, 90 Am. Dec. 161; Hill 'Hill v. Lord, 48 Me. 83, 99, per V. Lord, 48 Me. 83, 100; Borst v. Empie, Davis, J. 5 N. Y. 33; Spensley v. Valentine, 34 * Manning v. Wasdale, 5 Ad. & El. Wis. 154. 758. '2 Blackst. Com. 18. 'Hall v. Ionia, 38 Mich. 493; Good- ' Race V. Ward, 4 El. & Bl. 702, 709, rich v. Burbank, 12 Allen, 459, 461, 90 per Lord Campbell, C. J. Am. Dec. 161; Hill v. Shorey, 42 Vt. ^Manning v. Wasdale, 5 Ad. & El. 614; Hill v. Lord, 48 Me. 83, 100. 758. 43 § 57.] EASEMENTS DEFINED AND DISTINGUISHED. porate acts. A use of the riglit by the inhabitants of the town is no sufficient basis for clauning a corporate right in the town. The inhabitants of a town cannot acquire by prescription a right to take seaweed, for there could be no presumption of a grant, as an inliab- itant cannot purchase for liimself and his successors.^ Tlie inhabit- ants of a town may by custom acquire an easement, but not an interest in tlie land, or a right to take a profit in it, such as a right to take seaweed from the land of another. In reply to the objec- tion that seaweed is not a product of the soil where it is deposited and that if not taken away much of it is washed away by the same tides that brought it to the shore, the Supreme Court of Maine say : " So far as any general rule can be deduced from these cases, they tend to the conclusion that the right to take seaweed is a right to take a profit in the soU. It does not come within the principles applied to aquatic rights. The subject of it is, in part, a product of the soil where it is found. And, in regard to that j)ortion which is washed ashore by the tides, though not permanently remaining, the right which the owner of the flats has to it is much more anala- gous to the Jus alluvionls of riparian proprietors, than to the right of appropriating waifs or derelict goods, to which it is compared by the counsel for the defendant. ' ' ^ 57. The right to take coal or any mineral from the land of another is a right of profit ^ prendre, and is an incorporeal riglit incapable of creation except by grant or prescription.' The grantee of the right acquires no property in the land itself, but only in the coal or ore that he may take from the land ; though a grant of the mine or of all the coal or ore in the land is a grant of part of the land.^ A grant of the exclusive right to take all the coal in certain land is in efEeet a sale of the coal itself. It is not an incor- poreal right but a right to part of the land itself.'^ 'Hill V. Lord, 48 Me. 83; Sale v. "Muskett v. Hill, 5 Bing. N. C. 694, Pratt, ig Pick. 191; Green v. Chelsea, 706; Doe v. Wood, 2 B. & Aid. 724, 738; 24 Pick. 71. Chetham v. Williamson, 4 East, 469; 2 Hill V. Lord, 48 Me. 83, 100, per Grubb v. Bayard, 2 Wall. Jr. 81; Grubb Davis, J. See, also, Emans v. Turn- v. Grubb, 74 Pa. St. 25; Gloninger v. bull, 2 Johns. 313, 3 Am. Dec. 427; Sale Franklin Coal Co., 55 Pa. St. 9, 93 Am. V. Pratt, 19 Pick. 191; Church v. Dec. 720; Johnstown Iron Co. v. Cam- Meeker, 34 Conn. 421. bria Iron Co., 32 Pa. St. 241, 72 Am. '§64; Manning v. Wasdale, 5 Ad. Dec. 783; Worcester v. Green, 2 Pick. & El. 758; Huff V. McCauley, 53 Pa. 425, 429, per Wilde, J. St. 206, 209, 91 Am. Dec. 203; Clark v. 'Caldwell v. Fulton, 31 Pa. St. 475, Way, II Rich. 621. 72 Am. Dec. 760. PEOFIT A PEENDEE. [§ 58. The right to enter upon lands of another for any of the following purposes has been held to be a right to take a profit in the soil : — to cut grass/ for pasturage,^ for the purpose of hunting,' or for fishing in an unnavigable stream.'' So, also, to take away drifting sand from the beach,'' or to pile wood and lumber thereon for the purpose of sale and shipment,^ or to use the wood, timber, soil, gravel or stone on certain land.' 58. A grant of a right to take and kill game on land or waters belonging to the grantor is a grant of an interest in the land itself within the statute of frauds.^ It is a grant of a profit a prendre} " The property in animals y«?'CB naturw, while they are on the soil, lielongs to the owner of the soil, and he may grant a right to others to come and take them, by a grant of hunting, shooting, fowling and so forth. That right may be granted by the owner of the fee simple and such a grant is a license of a profit a prendre.'''' ^^ The right to take fish in waters upon another's land is not an easement. In an old ease the court said: " The word ' easement ' is known in law, but here the thing itself is set forth, namely, to catch fish, and certainly no instance can be given of a prescription for such a liberty by such a word or name. " " A privilege to shoot, take and kill wild fowl on the lakes and waters of the grantor is strictly confined to the lakes and waters and cannot be exercised upon the grantor's lands. '^ A grant of such right to persons named, their heirs and assigns, is a grant to the individuals named and their assigns ; but it does not authorize them to grant indiscriminately to others the right to exercise the same privilege.^' ' Viner, Tit. Prescription. "Webber v. Lee, g Q. B. D. 315; 'Cro. Eliz. 180, 363. Wickhiam v. Hawker, 7 M. & W. 63; ^Pickering v. Noyes, 4 B. & C. 639; Waters v. Lilley, 4 Pick. 145, 16 Am. Wickham v. Hawker, 7 M. & W. 63. Dec. 333; Bingham v. Salene, 15 Oreg. '' Waters v. Lilley, 4 Pick. 145, 16 208, 14 Pac. Rep. 523; Tinicum Fishing Am, Dec. 333. Co. v. Carter, 61 Pa. St. 21, 37, 100 ' Blewett V. Tregonning, 3 Ad. & El. Am. Dec. 597; Cobb v. Davenport, 33 554; Merwin v. Wheeler, 41 Conn. 14. N. J. L. 223, 97 Am. Dec. 71B. ' Littlefield v. Maxwell, 31 Me, 134, '" Ewart v. Graham, 7 H. L. Cas. 331, 50 Am. Dec. 653; State v. Wilson, 42 344, per Campbell, L. C, Me. 9, 28. The foregoing enumeration '' Peers v. Lucy, 4 Mod. 362, 366. is in the language of the court in Hill "Bingham v, Salene, 15 Oreg, 208, V. Lord, 48 Me. 83. 100. 14 Pac, Rep. 523. ■■ Texas & P. R. Co. v. Durrett, 57 "Bingham v. Salene, 15 Oreg. 208, Tex. 48, 52. 14 Pac. Rep, 523, 'Webber v, Lee, 9 Q. B. D, 315; Post V, Pearsall, 22 Wend, 425. 45 §§ 59, 00. J EASEMENTS DEFINED AND DISTINGUISHED. 59. A right to hunt, fish and fowl, granted to one, his heirs and assigns, is a profit k prendre in gross, and may be exercised by the servants of the grantee. The addition of the words " with servants, or otherwise " does not in legal effect add anything to the grant, nor does it limit the privilege and exclude the exercise of it by the servants in the master's absence. Baron Parke, so deciding, said : " The authorities upon this subject take this distinction: that if there be a personal license of pleasure, it extends only to the indi- vidual, and it cannot be exercised with or by servants; but if there is license of profit, and not for pleasure, it may. This will be found so laid down in the Duchess of Norfolk's case,' which was this : The Duchess brought an action for chasing in her park, against Wiseman and others. They pleaded that the Duchess licensed the Earl of Suffolk to hunt at his pleasure in the park, and they shewed at the time of the trespass the Earl came into the park, and the defendants with him, to hunt: and it was moved that the plea was bad, for by the license given to the Earl, which was only for pleasure and extended only to him, and no other could justify by that license; for if I give license to a man to eat with me none of his servants can justify the entry into my house by reason of that license, for it is a license of pleasure ; and so if I give leave to another to go at his pleasure into my orchard, none of his serv- ants can justify by that license ; but if it is a license of profit, and not of pleasure, it is otherwise ; for if one give leave to me to carry over his land with my cart, my servants can justify by his license ; and so if one gives me license to have a tree in his wood, my serv- ants may justify the cutting of the wood, and the entry, for I shall have profit by that: and so was the opinion of the court: and then the defendants said the Duchess gave license to the Earl to hunt, kill, and take with him the deer at his pleasure, and then they said that the Earl came there and they with him, and by his command, hunted and took away and that was held good. " ^ 60. The right to take fish in any water not navigable prima facie belongs to the owner of the soil over which the water flows or stands ; for the ownership of the soil in ordinary cases carries with it the ownership of the water. But when the ownership of the water is in one person and the ownership of the soil under the water 'Year Book, I2 Hen. 7, 25, and 13 ' Wickham v. Hawker, 7 Mees. & Hen. 7, 13, pi. 2. W. 63, 77. 46 PEOFIT A PRENDRE. [§ 61. is in another the right of fishing in the water belongs to the former, for he owns the element in which alone the fish can exist.' The mere fact that one owns land along the shore of a pond which belongs to another gives him no right to fish in the pond.^ A custom to take fish m alieno solo is not a good custom.^ The right of fishing in navigable waters is common to all, except when an exclusive right has been acquired by grant or prescription.'' But the owner of the soil which is flowed by the water of a pond has no right to fish in such water, when he has released all ease- ments, privileges, and rights in the pond except the right to iise a certain quantity of water from it for a mill. Such a release cuts off the right to fish and the releasor cannot thereafter claim such right as incident to his ownership of the soil under the pond.^ 61. A several or exclusive right of fishing on the land of another may be gained by an adverse and uninterrupted enjoyment of it for the period required by the statute of limitations. The right so acquired is good against all the world and can be maintained even against the owner of the soil.^ To acquire such right by use in any case, the possession and use must be exclusive as well as uninter- rupted.'' No right to a several fishery in a public navigable river can be presumed from the mere uninterrupted use and enjoyment of the right for more than twenty years in common with others. If a presumption of a grant of such a right in a public navigable river ' Turner v. Hebron, 6i Conn. 175, 22 Dec, 654. A license to fish, issued by Atl. Rep. 951; Adams v. Pease, 2 Conn, the state fish commissioner, under the 481; Waters v. Lilley, 4 Pick. 145, 16 provisions of Laws 1893, p. 15, cannot Am. Dec. 333; Commonwealth v. give the licensee the exclusive right to Chapin, 5 Pick. 199, 16 Am. Dec. 386; fish at any designated place. State v. Hooker v. Cummings, 20 Johns, go, 11 Crawford, 44 Pac. 876, 14 Wash. 373, Am. Dec. 249. followed in Morris v. Graham (Wash.) ' Baylor v. Decker, 133 Pa. St. 168, 47 Pac. Rep. 752. 19 Atl. Rep. 351. ' Sidwell v. Greig, 40 N. Y. Supp. 'Waters v. Lilley, 4 Pick. 145, 16 968. Am. Dec. 333. 'Turner v. Hebron, 61 Conn. 175, ■•Carter v. Murcot, 4 Burr. 2162; 22 Atl. Rep. 951; Chalker v. Dickinson, Hooker v. Cummings, 20 Johns. 90, 11 i Conn. 382, 6 Am. Dec. 250; Adams v. Am. Dec. 249; Rogers v. Jones, i Pease, 2 Conn. 481; Delaware & Md. Wend. 237, 19 Am. Dec. 493; Delaware R. Co. v. Stump, 8 Gill. & J. 479; Tini- & Md. R. Co. V. Stump, 8 Gill. & J cum Fishing Co. v. Carter, 61 Pa. St. 479, 29 Am. Dec. 561; Chalker v. Dick- 21, 100 Am. Dec. 597. inson, i Conn. 382, 6 Am. Dec. 250; 'Chalker v. Dickinson, i Conn. 382, Phipps St. State, 22 Md. 380, 85 Am. 6 Am. Dec. 250. 47 §§ 62, 63.] EASEMENTS DEFINED AND DISTINGUISHED can arise in any case, it must be shown that the use and enjoyment have been in exchision of tlie right of others.* A right to fish in a pond acquired by long use is a right in the nature of a profit a prendre in alieno solo, and is a right in gross belonging only to the individnals ^vho acquired it. It is a mere personal right which cannot be assigned and does not descend to heirs. - 62. The public, as an unorganized body, cannot acquire a right of fishing in a pond owned by an individual, either by grant or prescription, though any individual of the public might obtain the right of fishing in such pond in either of the ways mentioned. A grant to tlie unorganized public would be void for uncertainty.^ Nor can a large and indefinite class such as " owners and occupiers " claim such right by prescription.^ V. License. 63. A license is a personal and revocable privilege to do some act or series of acts upon the land of another without possessing any estate therein.^ A parol agreement whereby one landowner has the right to maintain a ditch across the land of another, for the pur- ' Delaware & Md. R. Co. v. Stump, ii Mass. 533, 537; Owen v. Field, 12 8 GJ!1. & J. 479. Allen, 457. ■'Turner v. Hebron, 61 Conn. 175,22 Minnesota : Johnson v. Skillman, 2q Atl. Rep. 951. Minn. 95, 12 N. W. Rep. 149. 'Turner v. Hebron, 5i Conn. 175, 22 New Hampshire : Batchelder v. Hib- Atl. Rep. 951. bard, 58 N. H. 269. ^Tilbury v. Silva, 45 Ch. D., 98. New York: Greenwool Lake & Port- 's Kent's Com. 452; De Haro v. J. R. Co. v. New York & G. L. R. Co., United States, 5 Wall. 599. 134 N. Y. 435, 31 N. E. Rep. S74; Alabama: Motes v. Bates, 74 Ala. 374. Cronkhite v. Cronkhite, 94 N. Y. 323; California: Wheeler v. West, 71 Cal. Wiseman v. Lucksinger, 84 N. Y. 31, 126, II Pac. Rep. 871. 38 Am. Rep. 479; Mendenhall v. Illinois: Forbes v. Balenseifer, 74 111. Klinck, 51 N. Y. 246; Pierrepont v. 183; Simpson V. Wright, 21 111. App. 67. Barnard, 6 N. Y. 279; Wolfe v. Frost, Indiana: Parish v. Kaspare, 109 Ind. 4 Sandf. Ch. 72; Houghtaling v. 586, 10 N. E. Rep. 109; Williamson v. Houghtaling, 5 Barb. 379; Jackson v. Yingling, 93 Ind. 42; Rogers v. Cox, Babcock, 4 Johns. 418. 96 Ind. 157, 49 Am. Rep. 152. Wisconsin: Lockhart v. Geir, 54 Wis. Iowa: Cook v. Chicago, B. & Q. R. 133, 11 N. W. Rep. 245; Thoeinke v. Co., 40 Iowa, 451, 455. Fiedler, gi Wis. 386, 64 N. W. Rep. 1030. Massachusetts : Hodgkins v. Farring- Wyoming ; Metcalf v. Hart, 3 Vv'yo, ton, 150 Mass. 19, 22 N. E. Rep. 73, 513, 27 Pac. Rep. 900, 31 Pac. Rep. 407, 15 Am. St. Rep. 168; Cook v. Stearns, 31 Am. St. Rep. 122, 138. 48 LICENSE. [§ 64. pose of draining his land, does not create an easement, but a license only whicli is revocable although the licensee has expended money upon the faith of the agreement; for if the agreement is irrevocable an interest or estate in land is created by it without a written con- veyance, " in the teeth of the statute of frauds." * If the owner of land erects a building thereon and inserts its tim- bers into a wall on land of an abutter with his oral permission, this is a license only, which may be revoked at any time before it has grown into a prescriptive right. ^ An oral agreement by a landowner permitting another to draw logs across his land for a consideration, is a mere license, revocable at will. It is not a right of way, as this is an interest in the land and can only be created by writing.^ The right to maintain a pond or reservoir upon the land of another is an easement which can only be acquired by grant or prescription.* A permanent right to ilow land by the erection and maintenance of a mill-dam cannot be created by parol, for such a right is an interest in the land, and therefore an easement which can only be created by grant. ^ A permanent right to maintain a drain through the land of another cannot be created by a license even if this be in writing and be made upon a good consideration. It can only be created by a deed or conveyance operating as a grant, and when so created, the right is an easement.^ 64. A license passes no property in land and no interest in it. It confers a right, for instance, to go upon one's land when it would be unlawful to do so without a license. " But a license to hunt in a man's park, and carry away the deer killed to his own use; to cut down a tree in a man's ground and to carry it away the next day to his own use, are licenses as to the acts of hunting and cutting down the tree, but as to carrying away of the deer killed and tree cut ' Thoemke v. Fielder, 91 Wis. 386, 64 Potter v. Chicago & N. W. R. Co., 20 N. W. Rep. 1030. Wis. 533, 91 Am. Dec. 444. And see ' Hodgkins v. Farrington, 150 Mass. Carter v. Harlan, 6 Md. 20; Olson v. 19, 21, 22 N. E. Rep. 73, 15 Am. St. St. Paul, Min. & Man. R. Co., 38 Minn_ Rep. 168. 479, 38 N. W. Rep. 490; Woodward v. ^Duinneen v. Rich, 22 Wis. 550. Seely, n 111. 157, 50 Am. Dec. 445; Tan- * Bridges v. Purcell, i Dev. & B. 492; ner v. Volentine, 75 111. 624. Johnson v. Skillman, 29 Minn. 95, 12 'White v. Manhattan R. Co., 139 N. W. Rep. 149. N. Y. 19, 34 N. E. Rep. 887. 'Morse v. Copeland, 2 Gray, 302; [4] 49 § 65. j EASEMENTS DEFINED AND DISTINGUISHED. down they are grants. " ^ A license is a mere autliority to do certain acts upon the land of another. " A license properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful. " ^ It is dis- tinguished in this respect from an easement.' If the owner in fee of land grants to another for a term of years " a liberty, license power and authority, to dig, work, mine and search for metals and minerals " in lands described, and to dispose of the ore, metals and minerals that should within that term be there found, paying to the grantor a certain share of such ore, the deed does not amount to a lease but to a license merely, and the grantee is entitled only to such ore as he should find and get, the grantor parting with no estate or interest in the rest. The grantee acquires no interest in the land or in the ore or metals therein, but only a right of property in such ore or metals as he should dig and get out. " That is no more than a mere right to a personal chattel, when obtained in pursuance of incorporeal privileges granted for the purpose of obtaining it, being very different from a grant or demise of the mines or metals or minerals, in the land. ' ' ^ Where upon a parol partition of land held in common, it was orally agreed that one co-tenant after the division should have the right to enter an orchard set off to the other, and gather one-half of the apples that might grow therein, such agreement was held to amount to a mere license revocable at pleasure, and was revoked by a conveyance of the land upon which was the orchard.^ 65. An easement is distinguished from a license, though it is often difficult to make out whether a particular case is the one or the other. ^ There are, however, certain fundamental principles ' Thomas v. Sorrell, Vaughan, 344, Frost, 4 Sandf. Ch. 72; Selden v. Dela- 351, per Vaughan, C. J., quoted in Wood ware & H. Canal Co., 29 N. Y. 634; V. Leadbitter, 13 M. & W. 838, 844, per Jackson v. Babcock, 4 Johns. 418; Cur- Alderson, B. tis v. La Grande Hydraulic Water Co., ' Thomas v. Sorrell, Vaughan's Rep. 20 Oreg. 34, 23 Pac. Rep. 808, 25 Pac. 351, per Vaughan, C. J. Rep. 378. 8 Howes V. Ball, 7 B. & C. 481; '•Doe v. Wood, 2 B. & Aid. 724, 739, Muskett V. Hill, 5 Bing. N. C. 694; per Abbott, C. J. See, also, § 59. Cook V. Stearns, 11 Mass. 533, 537; ^ Taylor v. Millard, 118 N. Y. 244, 23 Clark V. Glidden, 60 Vt. 702, 15 Atl. N. E. Rep. 376. Rep. 358; Prince v. Case, 10 Conn. 375, « 3 Kent's Com. 592. In East Jersey 27 Am. Dec. 675; Houston v. Laffee, Iron Co. v. Wright, 32 N. J. Eq. 248, 46 N. H. 505; East Jersey Iron Co. v. 254, the vice-chancellor said: " The Wright, 32 N. J. Eq. 248; Wolfe v. adjudications upon this subject are 50 LICENSE. [§ 60. underlying most of the cases, which enable courts to distiuguish an easement from a license, when construed in the light of surround- ing circumstances.' An easement implies an interest in the land, which a license does not. An easement must be created by a writ- ing or by prescription, while a license may be by parol. An ease- ment is a permanent interest in the realty, while a license, at least so long as it is executory, may be revoked at pleasure.^ " An oral license to do any act on the land of another does not trench upon the policy of the law, which requires that contracts respecting any title or interest in real estate shall be by deed or in writing. It gives the licensee no estate or interest in the land. It excuses acts done which would be trespass, or otherwise unlawful." ^ A parol license may be shown in evidence as a defence to an action of trespass against the licensee, or to an action for damages for acts which are within the terms of the license.* An instrument which conveys an interest in land for a definite term is not a license but a lease. ^ 66. A license may be lm.plied from, circumstances. It may be implied from the acquiescence of a landowner in certain acts or in a series of acts done by another upon his land.^ A license to enter upon land and erect buildings is implied in case the person having a possessory right to the land, his title not having been perfected, causes it to be generally understood that he is glad to see buildings and other arrangements put upon the land, numerous and discordant. Taken in Thoemke v. Fiedler, gi Wis. 386, 64 their aggregate, they cannot be recon- N. W. Rep. 1030; Cook v. Chicago, B. ciled; and, if an attempt should be & Q. R. Co., 40 Iowa, 451. made to arrange them into harmonious ' Hodgkins v. Farrington, 150 Mass. groups, some of them would be found 19, 21, 22 N. E. Rep. 73, per Devens. J. to be so eccentric in their application of ' French v. Owen. 2 Wis. 250; Lock- legal principles, as well as in their logi- hart V. Geir, 54 Wis. 133, 11 N. W. cal deductions, as to be impossible of Rep. 245. classification." ^ New York, C. & St. L. R. Co. v. ' Nunnelly v. Southern Iron Co., 94 Randall, 102 Ind. 453, 26 N. E. Rep. Tenn. 397, 29 S. W. Rep. 361. 122. '^ I Washburn's Real Prop. 629; 'Martin v. Houghton, 45 Barb. 258; Washburn's Easements, 6; Hodgkins Cutler v. Smith, 57 111. 252; Rogers v. V. Farrington, 150 Mass. 19, 22 N. E. Cox. 96 Ind. 157, 49 Am. Rep. 152; Rep. 73; Root V. Wadhams, 107 N. Y. Thayer v. Jarvis, 44 Wis. 388; Fletcher 384, 14 N. E. Rep. 281, reversing v. Evans, 140 Mass. 241, 2 N. E. Rep. 35 Hun, 57; Lawrence v. Springer, 237; Kay v. Pennsylvania R. Co., 65 49 N. J. Eq. 289, 24 Atl. Rep. 933; Pa. St. 269, 3 Am. Rep. 628. 51 § 67.] EASEMENTS DEFINED AND DISTINGUISHED. and that he will not treat as trespassers those who erect them and occupy his land.' 67. A right in the land of another, which ia in terms assignable, is intended to be permanent and is annexed to the land of the gran- tee, is an easement rather than a license. Thus, a grant of the right to use a strip of land for the purposes of " ingress, egress and regress, ' ' and on which the grantee, an ice company, could pass and repass railroad cars containing ice and materials, the only Imiitation in the grant being that it was not exclusive, and that the right could not be assigned, except to the successors of the grantee in the ice busi- ness, is an easement, and not a mere license. " The right in ques- tion was created by deed, and is made assignable, because it runs to the ' ice company, and to their assigns and successors, ' with a lunitation upon the power of assignment, restricting it ' to the successors in, and assigns of, said ice business.' It was without profit, as nothing was to be taken from the land of the grantor. It was not personal, because succession in title was provided for. Its nature indicates that the parties intended it to be a permanent inter- est in the land of the grantor, for it was a right of way over a rail- road for the purpose of enabling a corporation to carry on a business requiring transportation upon an extensive scale. The business was of such a character that a revocable right might result in irreparable injury to the grantee. The express mention of successors and assigns of the business shows that the parties had in contemplation something more than a temporary expedient, or a merely revocable user. Moreover, the right of way was the only means of communi- cation by land with the railroad upon which the ice company depended for the transportation of its ice to market, and of sup- plies to its ice-house. The track was laid upon the strip of land leading to the railroad, the right to use it granted, and the ice-house built, all at about the same time, and apparently for the same pur- pose, as there was no other use for the track. While it is true that no dominant estate is expressly named in the grant, yet one in fact existed, and was named by implication. The grant was to an ice company, for use in its ice business of the right to use a railroad track for the purpose of ingress and egress. Ingress to what, and egress from what ? Obviously, the adjoining land on which the ice company had constructed an ice-house and was conducting its ice ' Metcalf V. Hart, 3 Wyo. 513, 27 Pac. Rep. 900, 31 Pac. Rep. 407, 31 Am. St. Rep. 122. 52 LICENSE. [§ 68. business at the date of the grant, and to which it acquired title only three days after the original conveyance of the strip of land in ques- tion. * * * That land, therefore, was designed to be, and is, indirectly referred to as the dominant estate, or that to which the right belongs, while the servient estate, or that upon which the burden rests, is directly mentioned. ' ' ^ An instrument granting permission ' ' for all future time " to a manufacturing company to flow obnoxious matter into a certain stream, which describes the land through which the stream flows, as in a certain county, adjacent to the manufacturing company's works, and is supported by a valuable consideration, is suflacient to create an easement.^ 68. A license is a personal privilege and is not assignable. ^ An assignment by the licensee does not pass his right. * " If a license ' be granted to me ' " says Sheppard, " to walk in another man's garden, or to go through another man's ground, I may not give or grant this to another." ^ A license is almost always induced by confidence in the character of the licensee. ' ' A man may well accord a privilege upon his lands to one person, which he would refuse to all others. Hence it is held that a personal license is not assignable, and that an assign- ment by a licensee determines his right. Though a licensor may be estopped from recalling a privilege granted, the licensee may destroy it. He may abandon or release. He cannot substitute another to his right. " * A writing signed by the owner of a farm, reciting that for a certain consideration he agrees to allow a mining company to pass the muddy water from its ore waters through a stream on his farm so long as the company may wish, is merely a personal license which is not assignable.' 'Greenwood L. & P. J. R. Co. v. ton, 55 Pa. St. 164, 93 Am. Dec. 732; New York & G. L. R. Co., 134 N. Y. Fuhr v. Dean, 26 Mo. 116, iig, 69 Am. 435, 440, 31 N. E. Rep. 874, 47 N. Y. St. Dec. 484; Thoemke v. Fiedler, 91 Wis. Rep. 550, affi'g 28 N. Y. St. Rep. 739, 386, 64 N. W. Rep. 1030; Cowles v 8 N. Y. Supp. 26, per Vann, J. Kidder, 24 N. H. 364, 57 Am. Dec. 287. ^ Nunnelly v. Southern Iron Co., 94 ■'Dark v. Johnston, 55 Pa. St. 164, Tenn. 397, 29 S. W. Rep. 361. 171, 93 Am. Dec. 732. ^ Prince v. Case, 10 Conn. 375, 27 ' Touchstone, 239. Am. Dec. 675; Emerson v. Fisk, 6 Me. 'Dark v. Johnston, 55 Pa. St. 164, 200; Coney Island & B. R. Co. v. 93 Am. Dec. 732, per Strong, J. Brooklyn C. Co., 53 Hun, 169; Hull v. ' Nunnelly v. Southern Iron Co., 94 Babcock, 4 Johns. 418; Mendenhall v. Tenn. 397, 29 S. W. Rep. 361. Klinck, 51 N. Y. 246; Dark v. Johns- 53 §69.] EASEMENTS DEFINED AND DISTINGUISHED. A license may, however, be made assignable by express permis- sion; as where a license by indenture was given to one, his execu- tors, administrators and assigns, to search for and raise metals and convert them to the licensee's own use, and there was an express provision that the licensee should have authority to assign by deed.* 69. At law, and in many States at equity, as well, a parol license is revocable though a consideration has been paid, or expenditures have been made on the faith of it.^ Although there are numerous ' Muskett V. Hill, 5 Bing. N. C. 964 ' Wood V. Leadbitter, 13 M. & W, 838 ; Wallis v. Harrison, 4 M, & W. 538 Hewlins v. Shippam, 5 Barn. & C 221; Bryan v. Whistler, 8 Barn. & C 288; Fentiman v. Smith, 4 East, 107 The earlier cases to the contrary. Wood V. Lake, Sayers, 3; Tayler v. Waters, 7 Taunt, 374, 384, are overruled. Colorado ; Stewart v. Stevens, 10 Colo. 440, 15 Pac. Rep. 786; Ward v. Farwell, 6 Colo. 66. Connecticut ; Foot v. New Haven & N. R. Co., 23 Conn. 214; Collins Co. v. Marcy, 25 Conn. 239; Prince v. Case, 10 Conn. 375, 27 Am. Dec. 675. Delaware: Jackson & S. Co. v. Phila- delphia, W. & B. R. Co., 4 Del. Ch. 180. Illinois : St. Louis Nat. Stock Yards V. Wiggins Ferry Co., 112 111. 384, 54 Am. Rep. 243; Tanner v. Volentine, 75 111. 628; Kamphouse v. Gaffner, 73 111. 453, 461, overruling Russell v. Hub- bard, 59 111. 335; Simpkins v. Rogers, 15 111. 397; Woodward v. Seely, 11 111. 157, 50 Am. Dec. 445. Maine: Seidensparger v. Spear, 17 Me. 123, 35 Am. Dec. 234. The earlier deci- sions, Ricker v. Kelly, i Me. 117, 10 Am. Dec. 38; Clement v. Durgin, 5 Me. 9, are overruled. Maryland : Carter v. Harlan, 6 Md. 20; Hays v. Richardson, i Gill & J. 366, Massachusetts ; Morse v. Copeland, 2 Gray, 302; Cook v. Stearns, 11 Mass. 533; Ruggles v. Lesure, 24 Pick. 187'; Stevens v. Stevens, 11 Met. 251, 45 Am. Dec. 203; Claflin v. Carpenter, 4 Met. 54 381; Nettleton v. Wood V. Michigan Air 90 Mich. 334, 51 N. W. 583, 38 Am. Dec. Sikes, 8 Met. 34. Michigan : Line R. Co Rep. 263. Minnesota : Minneapolis Mill Co. v. Minneapolis & St. L. R. Co., 51 Minn. 304, 53 N. W. Rep. 639; Wilson v. St. Paul, M. & M. R. Co., 41 Minn. 56, 42 N. W. Rep. 600; Johnson v. Skillman, 29 Minn. 95, 43 Am. Rep. 192, 12 N. W. Rep. 149; Olson v. St. Paul, M. & M. R. Co., 38 Minn. 479, 38 N. W. Rep. 490. Mississippi : Beck v. Louisville, N. O. & T. R. Co., 65 Miss. 172, 3 So. Rep, 252. Missouri: Pitzman v. Boyce, 11 1 Mo. 387, ig S. W. Rep. 1104; Desloge v. Pearce, 38 Mo. 588. The cases of Fuhr V. Dean, 26 Mo. 116, and Baker v. Chi- cago, etc., R. Co., 57 Mo. 265, it is believed do not declare a different rule. The latter case was more than a license. Under the decisions of the Supreme Court, the decisions in School District v. Lindsay, 47 Mo. App. 134; Gibson v. St. Louis, A. & M. Asso, 33 'Mo. App. 165, and House v. Montgomery, 19 Mo. App. 170, cannot be considered as ex- pressing the law in this State. New Hampshire: Batchelder v. Hib- bard, 58 N. H. 269; Taylor v. Gerrish, 59 N. H. 569; Houston v. Laffee, 46 N. H. 505; Dodge v. McClintock, 47 N. H. 383, 386; Carleton v. Redington, 21 N. H. 291; Marston v. Gale, 24 N. H. 176. The earliest decisions to the con- trary, Woodbury v. Parshley, 7 N. Y. LICENSE. [§69. decisions which hold that in equity a parol license becomes irrevoca- ble after the licensee has expended money on the faith of it, these de- cisions seem opposed to sound law and to the weight of authorit}', both in America and in England. In a recent decision in ISTew Jersey, Chief Justice Beasley, for the Court of Errors and Appeals, says: " If the principle that licenses of this character are to be, under the conditions in question, treated as irrevocable, the same principle, if logical reasoning is to be maintained, would, of necessity, have to be extended so as to control most of the regulations of the statute of frauds. If a parol license, inefficacious by force of the act, should be rendered efficacious by reason of a losing part performance on the side of the licensee, it would be difficult to refuse, on a like ground, to apply a similar quality to a sale of goods equally within the statutory condemnation. Suppose A, a merchant, should by parol purchase a cargo of merchandise of B, to be delivered at a cer- tain day, and, trusting in such agreement of sale, should, to the knowledge of B, proceed at great expense to procure a vessel and prepare it for the voyage, would such sale be enforcible either at law or in equity ? In such case it would not be pretended that by reason of part performance and great loss a practicable equity would arise, and yet how, in point of principle, is such supposed case dis- tinguishable from that of one of these licenses after part perform- ance by the licensee ? The fact is, that a statute that renders legal the revocation of certain classes of contracts is founded on the theory 237, 26 Am. Dec. 739; Ameriscoggin R. Co., 139 N. Y. 19,34 N. E. Rep. 887; Bridge v. Bragg, 11 N. H. 102, are Murdock v. Prospect Park R. Co., 73 overruled. N. Y. 579; Eggleston v. New York & New Jersey : Hetfield v. Central R. H. R. Co. 35 Barb. 162; Hough tal- Co., 29 N. J. L. 571 ; Lawrence v. ing v. Houghtaling, 5 Barb. 379. Springer, 49 N. J. Eq. 289, 24 Atl. Rep. North Carolina; Richmond & D. R. 933, 31 Am„ St. Rep. 702; East Jersey Co. v. Durham & N. P.. Co., 104 N. C. Iron Co. V. Wright, 32 N. J. Eq. 248. 658, 10 S. E. Rep. 659; Bridges v. Pur- New York: Root v. Wadhams, 107 cell, i Dev. & B. 492; Kivett v. Mc- N. Y. 384, 14 N. E. Rep. 281; Crosdale Keithan, go N. C. 106; McCracken v. V. Lanigan, 129 N. Y. 604, 29 N. E. McCracken, 88 N. C. 272. Rep. 824; Miller v. Auburn & S. R. Rhode Island: Foster v. Browning, 4 Co., 6 Hill, 61; Thompson v. Gregory, R. I. 47, 53, 67 Am. Dec. 505. 4 Johns. 81, 4 Am. Dec. 255; Mumford Wisconsin: Thoemke v. Fiedler, 91 V. Whitney, 15 Wend. 381, 30 Am. Dec. Wis. 386, 64 N. W. Rep. 1030; Duin- 60; Wolfe V. Frost, 4 Sandf. Ch. 72, 90; neen v. Rich, 22 Wis. 550, where the Cronkhite v. Cronkhite, 94 N. Y. 323; question was left undecided; Potter v. Wiseman v. Lucksinger, 84 N. Y. 31, Chicago & N. W. R. Co., 20 Wis. 533, 38 Am. Rep. 479; White v. Manhattan 91 Am. Dec. 444. 55 § 70] EASEMENTS DEFINED AND DISTINGUISHED. that while, by its force, great losses will many times fall upon promisees, nevertheless snch losses must be endured by such sufferers in order that the mass of the community shall be protected against worse disaster. ' ' ' 70. The policy of the rule that a license is revocable although the licensee has acted upon it, and has expended money upon the faith of it, is declared by the Court of Appeals of New York in a recent decision. " There has been much contrariety of decision in the courts of different States and jurisdictions. But the courts in this State have upheld with great steadiness the general rule that a parol license to do an act on the land of the licensor, while it justi- fies anything done by the licensee before revocation, is nevertheless revocable at the option of the licensor, and this although the inten- tion was to confer a continuing right, and money had been expended by the licensee upon the faith of the licensor. This is plainly the rule of the statute. I: is also, we believe, tlie rule required by public polic}'. It prevents the burdening of lands with restrictions founded upon oral agreements easily misunderstood. It gives secu- rity and certainty to titles, which are most important to be pre- served against defects and qualifications not founded upon solemn instruments. The jurisdiction of courts to enforce oral contracts for the sale of land is clearly defined and well understood, and is indisputable. But to change what commenced in a license into an irrevocable right, on the ground of equitable estoppel, is another and quite a different matter. It is far better, we think, that the la-n- requiring interests in land to be e'sddenced by deed should be observed, than to leave it to the chancellor to construe an executed license as a grant depending upon what, in his view, may be equity in the special case." Accordingly, it was held that a mere verbal license given to an adjoining owner to erect a retaining wall on the licensor's land is revocable after the erection of the wall.^ ' Lawrence v. Springer, 49 N. J. Eq. ton, 47 X. J. Eq. 15S, 20 Atl. Rep. 286, 289, 296, 24 Atl. Rep. 933, 31 Am. St. the vice-chancellor follows Raritan Rep. 702. The case of Raritan Water Water Power Co. \. Veghte, sufra. Power Co. V. Veghte, 21 N. J. Eq. 463, '' Crosdale v. Lanigan, 129 N. Y. 604. 19 N. J. Eq. 142, is referred to, but its 610, 29 N. E. Rep. 824, per Earl, J. See applicability to the case before the similar statements as to the policy ot court was not perceived, for in that the rule in St. Louis Nat. Stock Yards case the license was in writing, not by v. Wiggins Ferry Co., 112 111. 384, 54 parol. In Morton Brewing Co. v. Mor- Am. Rep. 243. 66 LICENSE. [§§ 71, 72. 71. A railroad company does not acquire any easement upon land by entering under a mere license from the owner and con- structing its road ; and a purchaser from the licensor after the road had been constructed does not take the land subject to an easement, on the ground that at the time of his purchase the land was subject to a visible incumbrance. The conveyance does not convert the license into an easement ; on the contrary the conveyance is a revo- cation of the license. The owner of the land may revoke the license, and bring ejectment, which the railroad company may, under the statute, convert into condemnation proceedings.^ In some States, — notably Wisconsin and Illinois, — either by statute or judicial decision, founded on supposed consideration of public policy, a rail- road company acquires a permanent easement in the land by virtue of a license to enter, acted upon by the building of its road ; and any action by the landowner therefor is in eifect an action to recover compensation for the permanent appropriation of the land for rail- road purposes. 72. There is no exception to the general rule in favor of a rail- road company that a license is revocable at the pleasure of the licensor where it has entered upon land under a parol license and built its road, on the ground that considerations of public policy forbid that the continuous operation of the road should be inter- rupted.^ A common law dedication of land cannot be made to a railroad company for public use for railroad purposes.' 'Minneapolis Western Ry. Co. v. Miss. 172, 3 So. Rep. 252; Murdock v. Minneapolis & St. L. Ry. Co., 58 Prospect Park & C. I. R. Co., 73 N. Y. Minn. 128, 59 N. W. Rep. 983, per 579; Eggleston v. New York & H. R. Mitchell, J.; Watson v. Chicago, M, & Co., 35 Barb. 162; Stewart v. Stevens, St. P. Ry. Co., 46 Minn. 321, 48 N. W. 10 Colo. 440, 15 Pac. Rep. 786; see § 83. Rep. 1129; Lamm v. Chicago, St. P., That the license cannot be revoked M, & O. Ry. Co., 45 Minn. 71, 47 N. W. after the railroad company has ex- Rep. 455; Minneapolis Mill Co. v. pended money in the construction of Minneapolis, etc., Ry. Co., 51 Minn, its road, see Messick v. Midland, R. 304, 53 N. W. Rep. 639; Wood V. Michi- Co., 128 Ind. 81, 27 N. E. Rep. 419; gan Air Line R. Co., 90 Mich. 334, 51 Campbell v. Indianapolis & V. R. Co., N. W. Rep. 263; St. Louis Nat. Stock no Ind. 490, 11 N. E. Rep. 482; Horn- Yards V. Wiggins Ferry Co., 112 111. back v. Cincinnati & Z. R. Co., 20 Ohio 384, 54 Am. Rep. 243; Richmond & D. St. 81. R. Co. V. Durham & N. R. Co., 104 'Minneapolis Mill Co. v. Minneapo- N. C. 658, 10 S. E. Rep. 659; Jackson lis & St. L. R. Co., 51 Minn. 304, 313, & S. Co. V. Philadelphia, W. & B. R. 53 N. W. Rep. 639, per Mitchell, J.. Co., 4 Del. Ch. 180; Hatfield v. Cen- 'Watson v. Chicago, M. St. P. R. tral R. Co., 29 N. J. L. 571; Beck v. Co., 46 Minn. 321, 48 N. W. Rep. 1129. Louisville, N. 0. & Tex. R. Co.. 65 57 73. j EASEMENTS DEFINED AND DISTINGUISHED. The owner of land abutting upon a street may by parol waive his claim to damages against a railroad company wliich occupies the street for its road. If the road is constructed under the consent of the owner, he cannot afterwards claim damages.' Such abutting owner who has no title to the land of the street may, however, be regarded as abandoning his easement in the street, by executing a written license to an elevated railroad com- pany to construct and operate its road through the street.^ A conveyance, however, of a right of way to a railroad company creates an easement or an interest in the land which passes to a grantee or mortgagee of the company, and is not a mere license which is revocable.' 73. A license is revoked ipso facto by the licensor's conveyance of the land,* or by his doing any act which is inconsistent with or prevents the exercise of the license.^ It is revoked by the death of the licensor.^ A license to a partnership is revoked by its dis- solution.' A license is revoked by the commencement of an action for damages by the licensor.^ 1 Pratt V. Des Moines N. W. R. Co., 72 Iowa, 249, 33 N. W. Rep. 666, 32 Am. & Eng. R. Cas. 236. 'White \. Manhattan R. Co., 139 N. Y, 19, 34 N. E. Rep. 887. 3 Columbus, H. & G. R. Co. v. Bra- den, no Ind. 558, II S. E. Rep. 357; Greenwood Lake & P.J. R. Co. v. New York & G. L. R. Co., 134 N. Y. 435, 47 N. Y. St. Rep. 550, affi'g 55 Hun, 606, 8 N. Y. Supp. 26. ■•Wallis V. Harrison, 4 M. & W. 538; Hill V. Lord, 48 Me. 83; Carter v. Har- lan, 6 Md. 20; Eckerson v. Crippen, no N. Y. 585, 18 N. E. Rep. 443; Winne v. Ulster Co. Sav. Inst., 37 Hun, 349; Tag- gart V. Warner, 83 Wis. i, 53 N. W. Rep. 33; Rice V. Roberts, 24 Wis. 461; Jen- kins V. Lykes, ig Fla. 148, 45 Am. Rep. 19; Kamphouse i'. Gaffner, 73 111. 453; Drake v. Wells, 11 Allen, 141; Hodg- kins V. Farrington, 150 Mass. 19, 15 Am. St. Rep. 168; East Jersey Iron Co. V. Wright, 32 N. J. Eq. 248; Min- 58 neapolis Western Ry. Co. v. Minneapo- lis & St. L. Ry. Co., 58 Minn. 128, 59 N. W. Rep. 983; Johnson v. Skillman, 29 Minn. 95, 12 N. W. Rep. 149; Wil- son V. St. Paul, M. & M. R. Co., 41 Minn. 56, 42 N. W. Rep. 600. * Wood V. Leadbitter, 13 M. & W. 838; Hodgkins V. Farrington, 150 Mass. 19, 21, 15 Am. St. Rep. 168, 5 L. R. A. 209; Simpson v. Wright, 21 III. App. 67; Taylor v. Gerrish, 59 N. H. 569. ^De Haro v. United States, 5 Wall, 599; Hodgkins V. Farrington, 150 Mass. 19, 21, 15 Am. St. Rep. 168, 5 L. R. A. 209; Eggleston v. New York & H. R. Co., 35 Barb. 162; East Jersey Iron Co- V. Wright, 32 N. J. Eq. 248; Ruggles V. Lesure, 24 Pick. 187. ' Barksdale v. Hairston, 81 Va. 764. ' Hewlins v. Shippam, 5 B. & C. 221, per Bailey, J.; Lockhart v. Geir, 54 Wis. 133, II N. W. Rep. 245; Branch V. Doane, 17 Conn. 412; Mumford v. Whitney, 15 Wend. 380, 30 Am. Dec. 60. LICENSE. [§ Y4. A license cannot be revoked so that tlie licensee will be liable in trespass for his acts done in pursuance of it.' Where, under a parol consent, given for a sufficient consideration by one of two adjoining proprietors, a private road is laid out and opened, one -half upon the lands of each, for the benefit of a third party, the fact that the other proprietor closes up that portion of the road passing over his land does not annul the consent, but it is still operative and effectual to give a right of way over the land appro- priated in pursuance thereof, precisely the same as if the other pro- prietor had left the portion of the road upon his land undisturbed.^ 74. A license is irrevocable ■when it is coupled with a grant ; ' but even in that case it confers no interest in the land. " It may further be observed," says Baron Alderson, " that a license under seal (provided it be a mere license), is as revocable as a license by parol; and, on the other hand, a license by parol, coupled with a grant, is as irrevocable as a license by deed, provided only that the grant is of a nature capable of being made by parol. But where there is a license by parol, coupled with a parol grant, or pretended grant, of something which is incapable of being granted otherwise than by deed, there the license is a mere license, it is not an incident to a valid grant, and it is therefore revocable. Thus, a license by A. to hunt in his park, whether given by deed or by parol, is revo- cable ; it merely renders the act of hunting lawful, which, without the license, would have been unlawfid. If the license be, as put by Chief Justice Vaughan,'' a license not only to hunt, but also to take away the deer when killed to his own use, this is in truth a grant of the deer, with a license annexed to come on the land ; and supposing the grant of the deer to be good, then the license would be irrevocable by the party who had given it ; he would be estopped from defeating his own grant, or act in the nature of a grant. But suppose the ease of a parol license to come on my lands, and there to make a water-course, to flow on the land of the licensee. In ' Fuhr V. Dean, 26 Mo. 116. 39 Ind. 267; Richmond R. Co. v. Dur- ' Dempsey v. Kipp, 61 N. Y. 462. ham & N. R. Co., 104 N. C. 658, 10 'Wood V. Manley, 11 Ad. & El. 34; S. E. Rep. 659, per Shepherd, J.; Doe V. Wood, 2 B. & Aid. 724; Hunt Kamphouse, \. Gaffner, 73 111. 453, V. Rousmanier, 8 Wheat. 174, 203; 461; Woodward v. Seely, 11 111. 157, United States v. Baltimore & O, R. Co., i Am. Rep. 445. 1 Hughes, 138; Metcalf V. Hart, 3 Wyo. ■'Thomas v. Sorrell, Vaughan 330 513, 27 Pac. Rep. 900, 31 Pac. Rep. 407, 351. 31 Am. St. Rep. 122; Miller v. State, 59 §§ 75-77.] EASEMENTS DEFINED AND DISTINGUISHED. such a case there is no valid grant of the water-course, and the license remains a mere license, and therefore capable of being revoked. On the other hand, if such a license were granted by deed, then the question would be on the construction of the deed, whether it amounted to a grant of the water-course ; and if it did, then the license would be irrevocable. ' ' * 75. An oral license to cut and remove trees, may be revoked by the licensor at any time before the trees are cut; but such revoca- tion does not affect the right of the licensee to remove the trees already cut, but it terminates the license as to the trees then left standing.^ As to the trees already severed the license is coupled with and supported by an interest in the jDroperty, and to that extent it is not revocable.^ 76. A parol license is irrevocable wlien the conduct of the licen- sor has been such that the assertion of the legal title would operate as a fraud upon the licensee. Under such condition a license will be held to be irrevocable, even by those courts which adopt the general rule that a parol license is always revocable, though a con- sideration had been paid or there has been an expenditure of money by the licensee on the faith of the license.* To enforce an oral license in a court of equity there must be a complete and sufficient contract founded not only on a valuable con- sideration, but its terms must be defined by satisfactory proof accompanied by acts of part performance unequivocally referable to the supposed agreement. The acts of performance must be so clear, definite and certain in their object and design as to refer exclusively to a complete agreement of which they are a part execution.^ 77. The doctrine that executed licenses become irrevocable was adopted in Pennsylvania at an early day and has been adhered to 'Wood V. Leadbitter, 13 M. & W. "Minneapolis Mill Co. v. Minneapo- 838, 845. lis & St. Louis R. Co., 51 Minn. 304, ''2 Jones, Real Property, 1606-1609; 313, 53 N. W. Rep. 639, per Mitchell, J. Giles V. Simonds, 15 Gray, 441, 77 Am. ' Cronkhite v. Cronkhite, 94 N. Y. Dec. 373; Cool V. Peters Box & L. Co., 323, 327, per Miller, J., partly in his 87 Ind. 531; Pierrepont v. Barnard, 6 language; Wheeler v. Reynolds, 66 N. Y. 279; Jenkins V. Lykes, 19 Fla. 148. N. Y. 227; Wiseman v. Lucksinger, 84 8 Giles V. Simonds, 15 Gray, 441, 77 N. Y. 31, 38 Am. Rep. 479; Eckerson Am. Dec. 373; Hill v. Hill, 113 Mass. v. Crippen, no N. Y. 585, 18 N. E. 103, 18 Am. Rep. 455; Hill v. Cutting, Rep. 443. 113 Mass. 107. 60 LICENSE. [§78. ever since.' A right of way over an alley was sustained as an irrevocable license, where one party had made alterations and improvements on his adjoining property, upon the faith of a mutual understanding as to the use of such alley with the adjoining owner. ^ Where a license to cast sawdust into a stream was shown to have induced the licensee to build his mill where it was, and in a difl'ei'- cnt place from what he had intended, it was held that the license was irrevocable.' Where the owners of adjoining lots built a single building covering both lots and the only access to the upper stories was by stairs which were altogether on one lot, it was held that the erection of such building constituted an executed license, in the nature of an easement, on the part of the owner of said lot, allowing- the owner of the other lot to use such stairs.* 78. In other States also a license for a valuable consideration is regarded as irrevocable when the licensee has incurred expense under it or there is a mutual agreement to do certain acts, and this has bsen fully performed on one side.^ " A license may become ' It first appears in Le Fevre v. Le Fevre, 4 Serg. & R. 241, 8 Am. Dec. 696, and was followed in Rerick v. Kern, 14 Serg. & R. 267, a leading case; McKillip v. Mcllhenny, 4 Watts, 317, 28 Am. Dec. 711, and Swartz v. Swartz, 4 Pa. St. 353, 45 Am. Dec. 697, being possibly carried to its extreme in the latter case; Ebner v. Stichter, tg Pa. St. ig; Cumberland Valley R. Co. V. McLanahan, 59 Pa. St. 23; Thomp- son V. McElarney, 82 Pa. St. 174; Clel- and's App., 133 Pa. St. i8g, ig Atl. Rep. 352; Lacy v. Arnett, 33 Pa. St. 169; Huff V. McCauley, 53 Pa. St. 206. 91 Am. Dec. 203; Dark v. Johnston, 55 Pa. St. 164, 93 Am. Dec. 732. '' Ebner v. Stichter, 19 Pa. St. 19. ^ Thompson v. McElarney, 82 Pa. St. 174. ■■Cleland's App., 133 Pa. St. 189, 19 Atl. Rep. 352. ' Alabama : Rhodes v. Otis, 33 Ala. 578, 73 Am. Dec. 439. Arkansas : Wynn v. Garland, ig Ark. 23, 68 Am. Dec. 190. California: McCarthy v. Mut. Relief Asso., 81 Cal. 584, 22 Pac. Rep. 933; Flickinger v. Shaw, 87 Cal. 126, 25 Pac. Rep. 258, 22 Am. St. Rep. 234. Georgia ; Winham v. McGuire, 51 Ga. 578; Rawson v. Bell, 46 Ga. 19; Cook V. Pridgeon, 45 Ga. 331, 12 Am. Rep. 582; Sheffield v. Collier, 3 Kelley, 82; Southwestern R. Co. v. Mitchell, 69 Ga. ti4; Macon v, Franklin, 12 Ga. 239. Indiana: Robinson v. Thrailkill, no Ind. 117, 10 N. E. Rep. 647; Buchanan V. Logansport, C. & S. R. Co., 71 Ind. 265; Messick v. Midland R. Co., 128 Tnd. 81, 27 N. E. Rep. 4ig; Campbell V. Indianapolis & V. R. Co., no Ind. 490, II N. E. Rep. 482; Saucer v. Kel- ler, 129 Ind. 475, 28 N. E. Rep. 1117; Ferguson v. Spencer, 127 Ind. 66, 25 N, E. Rep. 1035; Lane v. Miller. 27 Ind. 534; Williamson v. Yingling, 93 Ind. 42; Clauser v. Jones, 100 Ind. 123; Simons v. Morehouse, 88 Ind. 3gi; Nowlin v. Whipple, 120 Ind. 5g6, 22 N. E. Rep. 669, 79 Ind. 481; Rogers V. Cox, 96 Ind. 157, 49 Am. Rep. 152; Hodgson V. Jeffries, 52 Ind. 334. ; Snow- den V, Wilas, 19 Ind. 10, 81 Am. Dec. 370. Iowa: Harkness V. Burton, 39 Iowa, 61 § 79. J EASEMENTS DEFINED AND DISTINGUISHED. an agreement on valuable consideration; as, where the enjoyment of it must necessarily be preceded by the expenditure of money; and when the grantee has made improvements or invested capital in consequence of it, he has become a purchaser for a valuable con- sideration. Such a grant is a direct encouragement to expend money, and it would be against all conscience to annul it, as soon as the benefit expected from the expenditure is beginning to be per- ceived. Why should not such an agreement be decreed in specie ? * * * A right under a license when not specially i-estricted, is commensurate with the thing of which the license is an accessory. Permission to use water for a mill or anything else that was viewed by the pai-ties as a permanent erection, will be of unlimited duration, and survive the erection itself, if it should be destroyed or fall into a state of dilapidation; in which case the parties might perhaps be thought to be remitted to their former rights." ^ Of course this equitable doctrine does not apply in case a licenseCj^ without consideration, has not acted upon the license, and has incurred no material expense under it; and the license is in such case revocable at the will of the licensor.^ 79. A license may be revoked after the licensee has enjoyed the full benefit of his expenditure.^ Thus where one, by permission, loi; Anderson v. Simpson, 21 Iowa, Rep. 661; Harrison v. Boring, 44 Tex. 399; Beatty v. Gregory, 17 Iowa, 109 85 255. Am. Dec. 546, Wiclcersham v. Orr, 9 Vermont: Clark v. Glidden, 60 Vt. Iowa, 253, 74 Am. Dec. 348; Bush v. 702, 15 Atl. Rep. 358; Olmstead v. Sullivan, 3 G. Greene, 344, 54 Am. Abbott, 61 Vt. 2B1, 18 Atl. Rep. 315; Dec. 506. Hall v. Chaffee, 13 Vt. 150; Adams v. Nebraska: Gilmore v. Armstrong, Patrick, 30 Vt. 516; Stark v. Wilder, 36 (Neb.), 66 N. W. Rep. 998. Vt. 752; Pope v. Henry, 24 Vt. 560. Nevada : Lee v. McLeod, 12 Nev. 280. ■ Rerick v. Kern, 14 Serg. & R. 267, Ohio: Hornback v. Cincinnati & Z. 271, 16 Am. Dec. 497, per Gibson, J. R. Co., 20 Ohio St. 81; Wilson v. Chal- '' Parish v. Kaspare, log Ind. 586, 10 fant, 15 Ohio, 248, 45 Am. Dec. 574. N. E. Rep. 109; Williamson v. Ying- Oregon: Baldock v. Atwood, 21 ling, 93 Ind. 42; Nowlin v. Whipple, Oreg. 73, 26 Pac. Rep. 1058; Curtis v. 79 Ind. 481; Ellsworth v. Southern La Grande Hydraulic Water Co., 20 Minn. R. Co., 31 Minn. 543, 18 N. W. Oreg. 24, 23 Pac. Rep. 808, 25 Pac. Rep. 822; Huff v. McCauley, 53 Pa. Rep. 378. St. 206, gi Am. Dec. 203; Stoddard v. Tennessee ; Moses v. Sanford, 2 Lea, Filgur, 21 111. App. 560. 655. 'Allen V. Fiske, 42 Vt. 462; Morse Texas: Thomas v. Junction City Irr. v. Copeland, 2 Gray, 302; Cowles \. Co., 80 Tex. 550, 16 S. W. Rep. 324; Kidder, 24 N. H. 364, 57 Am. Dec. 287. Risien v. Brown, 73 Tex. 135, 10 S. W. 62 LICENSE. [§ 79. laid an aqueduct to a spring on the licensor's land, and the aqueduct had decayed and required to be rebxiilt to be of any value, the licensor had the right to revoke the license, because the licensee had enjoyed the full benefit of his expenditure, and the revocation would not deprive him of any right. ^ ' Allen V. Fiske, 42 Vt. 462, and see Clark v. Glidden, 60 Vt. 702, 710, 15 Atl. Rep. 358. 63 CHAPTEE 11. CREATED BY GRANT. I. In general, 80-88. II. By exceition or reservation, 8g- 103. III. By covenant or condition, 104-117. IV. Notice to purchaser, 118-125. I. In General. 80. An easement can be created only by a grant, express or implied, or by prescription, from wliich a grant is presumed. It is an interest in land within the statute of frauds a,nd cannot be created by parol.* Though an oral grant of an easement is within Gray, 302, 305; Cook v. Stearns, li Mass. 533. Mississippi : Lanier v. Booth, 50 Miss. 410; Bonelli v. Blakemore, 66 Miss. 136, 5 So. Rep. 228. New Hampshire : Tibbetts v. Tibbetts, 66 N. H. 360, 20 Atl. Rep. 979; Ste- vens V. Dennett, 51 N. H. 324. New Jersey : Lawrence v. Springer, 49 N. J. Eq. 289, 292, 24 Atl. Rep. 933. New York: White v. Manhattan R. Co., 139 N. Y. 19; Taylor v. Millard, 118 N. Y. 244, 23 N. E. Rep. 376; Pierce v. Keator, 70 N.Y. 419, 422, 26 Am. Rep. 612; Post v. Pearsall, 22 Wend. 425, 433; Cronkhite v. Cronk- hite, 94 N. Y. 323; Nellis v. Munson, 108 N. Y. 453, 15 N. E. Rep. 739; Thompson v. Gregory, 4 Johns. 81, 4 Am. Dec. 255; Cayuga R. Co. v. Niles, 13 Hun, 170, 173; Day v. New York Cent. R. Co., 31 Barb. 548; Wolfe v. Frost, 4 Sandf. Ch. 72; Pitkin v. Long Island R. Co., 2 Barb. Ch. 221, 47 Am. Dec. 320. North Carolina: Cagle v. Parker, 97 N.C. 271, 2 S. E. Rep. 76. Pennsylvania: Huff v. McCauley, 53 Pa. St. 206, 91 Am. Dec. 203. ' Fentiman v. Smith, 4 East, 107; Wallis V. Harrison, 4 M. & W. 538; Hewlins v. Shippam, 5 B. & C. 221; Wood V. Leadbitter, 13 M. & W. 838; Adams v. Andrews, 15 Q. B. 284, 296; Cocker v. Cowper, i Cr. M. & R. 418. California: North Branch & M. R. Co. 's App., 32 Cal. 499, 506. Colorado ; Burlington & C. R. Co. ■!. Schweikart, 10 Colo. 178, 183, 14 Pac. Rep. 329; Ward v. Farwell, 6 Colo. 66; Stewart v. Stevens, 10 Colo. 440, 15 Pac. Rep. 786. Delaware ; Jackson & Sharp Co. v. Phil. W. & B. R. Co., 4 Del. Ch. 180. Illinois: Forbes v. Balenseifer, 74 111. 183; Tinker v. Forbes, 136 111. 221, 26 N. E. Rep. 503; Oswald v. Wolf, 126 111. 542, 19 N. E. Rep. 28. Indiana: Robinson v. Thrailkill, no Ind. 117, 10 N. E. Rep. 647; Davidson V. Nicholson, 59 Ind. 411, 413; Brum- field V. Carson, 33 Ind. 94, 5 Am. Rep. 184; Richter v. Irwin, 28 Ind. 26. Kentucky: Talbott v. Thorn, 91 Ky. 417, 16 S. W. Rep. 88; Hall v. McLeod, 2 Met. 98, 74 Am. Dec. 400. HasBachusetts ; Morse v. Copeland, 2 64 IN GENEEAL. [§ 81. the statute of frauds, such a grant may be used to rebut the idea that the user was permissive.^ An easement can only be created by a deed or by a conveyance operating as a deed. A writing, though executed upon a valuable consideration, is not effectual to create an easement unless it operates as a grant. ^ " But this is, in effect, merely sa}'ing that an easement, being an iaterest in land, can be created only by grant, the existence of which may be established by production of a deed expressly de- claring it, or may be inferred, by construction, from the terms and effect of an existing deed, or evidence of the grant may be derived from its having been so long enjoyed as to be regarded as proof that a grant was originally made, though no deed is produced which contains it. In case of an express grant, the fact of the creation of the easement as well as its nature and extent, is determined by the language of the deed, taken in connection with the circumstances existing at the timeof making it.'" 81. The only person who can grant a permanent easement is the owner of the land in fee. One who owns an estate less than the fee, such as an equitable estate or an estate for years, cannot, of course, grant a permanent easement, but only an easement to continue dm-- ing the time his estate may contiaue. Thus a railroad company holding an agreement under which it may take land for its works during a certain period at a price named, cannot grant a right of way over such land until it has become the proprietor of it. It must own the servient tenement in order to give an easement over it.* A life tenant can create an easement which will continue during his life ; but one tenant in common cannot grant an easement which will be binding even as to his interest as against a subsequent grantee ♦ Ehode Island: Foster v. Browning, 4 -White v. Manhattan R. Co., 139 N. R. I. 47, 51, 67 Am. Dec. 505. Y. 19. Tennessee : Long v, Mayberry, 96 ' Lanier v. Booth, 50 Miss. 410, 413, Tenn. 378, 36 S. W. Rep. 1040; Nun- per Peyton, C. J. nelly v. Southern Iron Co., 94 Tenn. "i Rangeley v. Midland R. Co., L, R. 397,413,29 S. W. Rep. 361; Ferrell V. 3 Ch. 306, 310; Gentleman v. Soule, Ferrell, i Baxt. 329. . 32 III. 271, 83 Am. Dec. 264; Hard- Texas: Texas & P. R. Co. v. Dur- ing v. Hale, 83 111. 501; Gridley v, rett, 57 Tex. 4S. Hopkins, 84 111. 528; Kyle v. Logan, Wisconsin: Thoemke v. Fiedler, 91 87 111. 64; Simpson v. Wright, 21 111. Wis. 386; Rice v. Roberts, 24 Wis. App. 67, 74. 461, 465, I Am. Rep. 195. In Wisconsin a guardian may grant ' Talbott V. Thorn, 91 Ky. 417, 16 S. easement upon land of his wards, W. Rep. 88. 2 Annot. Stats. 1889, § 3991. [5] 65 §§ 82, 83. J CKEATED BY GRANT. of all the tenants in common.^ The trvistees of an active trust who have the legal title may grant an easement over lands belonging to the trust estate, which will be valid diu-ing the life of the trust.^ 82. An easement may also be acquired by custom. Custom rests upon local usage, while prescription is an indi^ddual claun. " The same rights and privileges which may be claimed as a custom, may also be claimed as a prescription. An easement upon another man's land, such as a right of way, a right to tiu-n a plough upon another man's land, or for a fisherman to mend his nets there, aright to have a gateway, or to pass quit of toll, may be sustained as a custom, or as a prescription. If these rights are coumion to any manor, dis- trict, 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 descendants, to a body politic and its successors, or are attached to a particular estate, and are only exercised by those who have the ownership of such estate they are holden, as a prescription, which pre- scription is either personal in its character, or is a prescription in a que estate. In order, therefore, to determine whether rights are holden as a custom, or as a prescription, it is necessary to advei"t merely to the manner in which they are holden, whether as a local usage, or as a personal claim, or dependent on a particular estate. At the same time, there are certain rights that can be holden but in one way and as a prescription.'" 83. An easement is not created, by an equitable estoppel except in cases of fraud.'' A railroad company, a water company, or an irrigation company, does not gain an easement of way through land by making large expenditures preparatory to entering upon it, while the land owner remained silent. " A land owner may be aware that a railroad company has surveyed the route for a railroad over his land, and has expended large sums of money ia grading up to his line, intending to enter his premises and build its road; but he may with impujaity remain silent until the attempt is made to enter upon his land, and prevent such attempt by injunction. It would be an anomalous defense on the part of the railroad company that, by his silence, while he saw its survey across his land, and the ' Crippen v. Morss, 49 N. Y. 63. ^ Perley v. Langley, 7 N. H. 233, 235, ' Valentine v. Schreiber, 3 N. Y. per Upham, J. See § 54. App. Div. 235, 73 N. Y. St. 838, 38 N. "Jackson & S. Co. v. Philadelphia Y. Supp. 417. W. & B. R. Co., 4 Del. Ch. 180. See §§ 69-76. 66 IN GENERAL. [§ 84. great expenditures made in grading to his line, lie should be estopped to assert liis right to protect himself against invasion. * * * Estoppels in- pais are the creations of courts uf equity, invented to prevent irreparable injury to a party who has been led into a course of conduct in reHanee upon the representations of another, whicli it is inequitable to allow that other to retract ; but these rules of equity are not resorted to if other rules of law can be invoked for the relief of the sufferer. Without intending to decide the question here, it is very doubtful if a right will ever be enforced against a party upon the ground of eqiutable estoppel, where the party claim- ing the benefit of it can enforce such rig] it under a statutory power independent of estoppel." ' A parol contract for an easement, which equity will regard as equivalent to a grant, must be a complete contract for a valuable consideration accompanied by acts of part performance, unequivo- cally referable to the contract. " There are, no doubt, many cases icL which courts recognize an equitable right to an easement without a deed; but there will be found in them either an express agreement for an easement or an acquiescence or consent by con- duct which has led to the erecting of permanent works or valuable and lasting improvements, or some other fact which would make the assertion of a legal title operate as a fraud upon the persons setting up the equitable right." ^ 84. An oral promise to grant an easement is not suflloient to raise an estoppel in favor of one who has acted upon it. In a case not relating to easements Mr. Justice G-ray states a principle which is applicable to this subject: ' "A promise, upon which the statute of frauds declares that no action shall be maintained, cannot be made effectual by estoppel merely because it has been acted upon by the promisee and not performed by the promisor." To create an easement by estoppel there must be something more than a promise to grant it, even if there was a consideration for the promise, and the promisee has acted upon the promise.* ' Stewart v. Stevens, lo Colo. 440, ' Brightman v. Hicks, 108 Mass. 445, 15 Pac. Rep. 786, per Macon, C. 246. Quoted and approved in Stewart "Wiseman v. Lucksinger, 84 N. Y. v. Stevens, 10 Colo. 440, 15 Pac. Rep. 31, 41, 38 Am. Rep. 479, per Danforth, 786, a case relating to easements. J. Approved in Cronkhite v. Cronk- *§§ 69-79; Cocker v. Cowper, i hite, 94 N. Y. 323. See also Hewlins Cromp. M. & R. 41S; Johnson v. Skill- V. Shippam, 5 B. & C. 221; Cocker v. man, 29 Minn. 95, 12 N. W. Rep. 149. Cowper, I C. M. & R. 418. 67 § 85. J OEEATED BY GEANT. A parol grant of an easement does not become irrevocable merely because the person entitled to the privilege has entered upon its enjoyment. It is only in case such person has changed his position by the expenditure of money or otherwise so that it -^rould be a fraud on the part of the person who granted the privilege to revoke it that the latter is estopped to do so and the privilege becomes executed and irrevocable.^ 85. Under the equitable doctrine of part performance a verbal agreement for an easem.ent has been enforced by some courts. The owners of adjoining houses being about to rebuild, entered into a verbal agreement, that one of them should pull down a party-wall and rebuild it lower and thinner, and that each party should be at liberty to make a lean-to skylight with the lower end resting on the party-wall. That owner accordingly piiUed down and rebuilt the party -wall and erected a lean-to skylight on his side of it as agreed. The other owner also erected a skylight on his side, but instead of a lean-to, so shaped it as to obstruct the access of light to the other's jjremises more than the agreed lean-to skylight would have done. It was held that the effect of the agreement was to give to each party an easement of light over the other's land; and that one party having performed the agreement on his part was entitled to have it enforced on the part of the other. Mr. Justice Kay, after citing many authorities applicable to cases of easements obtained imder parol agreements partly performed, says : ^ " These authorities seem to me to establish the following propositions: 1. The doctrine of part-performance of a parol agreement, which enables proof of it to be given notwithstanding the statute of frauds, though principally applied in the case of contracts for the sale or purchase of land, or for the acqtusition of an interest in land, has not been confined to those cases. 2. Probably it would be more accurate to say it applies to all cases in which a Court of Equity would entertain a suit for specific performance if the alleged con- tract had been in writing. 3. The most obvious case of part-per- formance is where the defendant is in possession of land of the 'Forbes v. Balenseifer, 74 111. 183; 300; Duke of Devonshire v. Eglin, 14 Russell V. Hubbard, 59 111. 335. Beav. 530; Rochdale Canal Co. v. '' East India Company v. Vincent, 2 King, 16 Beav. 630; Cotching v. Bas- Atk. 83; Anon., 3 Eq. Cas. Abr. 522; sett, 32 Beav. loi; Ramsden v. Dyson, Clavering's Case, in Jackson v. Cator, L. R. i H. L. 129; Plimmer v. Welling- 5 Ves. 688, 690; Dann v. Spurrier, 7 ton, 9 App. Cas. 699; Russell v. Ves. 231 ; Powell v. Thomas, 6 Hare, Watts, 10 App. Cas. 590. IN GENERAL. [| 86. plaintiff under tlie parol agreement. 4. The reason for tlie rule is that where the defendant has stood by and allowed the plaintiff to fulfil his part of the contract, it would be fraudulent to set up tlie statute. .5. But this reason applies where^'er the defendant has obtained and is in possession of some substantial advantage imder a parol agreement which, if in writing, would be such as the court would direct to be specifically perfonned. 6. The doctrine applies to a parol agreement for an easement, though no interest in land is intended to be acquired."' It is to be observed that eminent judges have regretted the in- troduction of this equitable doctrine, and have declared that it should not be carried farther than it has been carried by well recog- nized authorities.^ 86. In some States a parol grant of an easement is readily regarded as effectual in equity if it is made upon a valid considera- tion and 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.' Thus if one owning land traversed by a stream sells a portion thereof to another, and at the same time gives such other person by parol the right to overflow the remainder of the land by erecting a dam on the land so con- veyed, and the purchaser, relying on such parol agreement, erects such a dam, and a mill operated b}^ water, and maintains the same, the parol agreement becomes enforceable. If ^sdewed as a license, the acts of the purchaser render the license irrevocable. If viewed as an easement, they take the grant out of the statute of frauds.* ' McManus v. Cooke, 35 Ch. D. 681, Benson, 19 Ind. 367; Steinke v. Bent- 697. See §§ 77-79. ley, 6 Ind. App. 663, 34 N. E. Rep. 97; ^2 Story's Eq. Jur. § 766; Phillips Robinson v. Thrailkill, no Ind. 117, 10 V.Thompson, i Johns. Ch. 131, Chan- N. E. Rep. 647; Parish v. Kaspare, cellor Kent; Lindsay v. Lynch, 2 Sch. 109 Ind. 586, 10 N. E. Rep. 109; Lacy & L. I, 4, Lord Redesdale, L. Ch. ; v. Arnett, 33 Pa. St. 169; Beatty v. Cooper V. Carlisle, 17 N. J. Eq. 525, Gregory, 17 Iowa, 109, 85 Am. Dec. Chancellor Zabriskie; Lawrence v. 546; Franklin v. Pollard Mill Co., 88 Springer, 49 N. J. Eq. 289, 24 Atl. Rep. Ala. 318, 6 So. Rep. 685; Shields %'. 933, Beasley, C. J. Titus, 46 Ohio St. 528, 22 N. E. Rep. 2|§ 77-79; Gilmore v. Armstrong, 717; Champion v. Munday, 85 Ky. 31, 48 Neb. 92, 66 N. W. Rep. 998; Wynn 2 S. W. Rep. 546; Harrison v. Boring, V. Garland, 19 Ark. 23, 68 Am. Dec. 44 Tex. 255. 190; Johnson v. Lewis, 47 Ark. 66, 14 ^ Newcomb v. Royce, 42 Neb. 323, 60 S. W. Rep. 466; Snowden v. Wilas, 19 N. W. Rep. 552. Ind. 10, 81 Am. Dec. 370; Stephens v. 69 §§ 87, 88. J CREATED BY GRANT. If a land owner verbally agrees to convey a railroad company, without charge, a right of way across his land, and the company, relying on his promise, and with his acquiescence, builds across the land, he is estopped to claim damages for the building of the road.^ One bought a tract of land with a right of way to a public road through other lands of the vendor, and went into possession, but when a deed was tendered to him he refused to receive it because it did not cover the right of way. He finally accepted it, because the vendor stated that if the purchaser would accept the deed, he would make another of the right of way. The vendor afterwards refused to make such other deed. It was held that the vendee was entitled to maintain a bill in ecpiity for specific performance and to enjoin the vendor who had interfered with the use of the right of way.^ 87. A grant of an easeraent must contain a sufficient description of the land which is to be subjected to the servitude.'^ If the ser- vitude is a right of way, the land over which it is to extend or the way itself must be defined mth precision; but when this is done the acceptance of the deed conveying such right of way is an accept- ance of the way, and no act is required of him to show his accept- ance of it as owner of the dominant tenement.* 88. An easement granted in indefinite terms, may be construed in accordance with the uniform acts of the parties continued for many years. Such acts gi^dng a practical construction to the grant will be deemed to express the intention of the parties, and the courts will give it the construction that the parties themselves have put upon it 5 'Evans v. Gulf, C. & S. F. Ry. Co., ^ Nunnelly v. Southern Iron Co., 94 9 Tex. Civ. App. 124, 28 S. W. Rep. Tenn. 397, 29 S. W. Rep. 361. 903; Texas & N. O. R. Co. v. Sutor, * Smith v. Worn, 93 Cal. 206, 28 Pac. 56 Tex. 496, 59 Tex. 29; Texas St. L. Rep. 944. R. Co. V. Jarrell, 60 Tex. 267; Harrison ' Hoag v. Place, 93 Mich. 450, 18 L. V. Boring, 44 Tex. 255; Risien v. R. A. 39, 53 N. W. Rep. 617; Mudge v. Brown, 73 Tex. 135, 10 S, W. Rep. 661; Salisbury, no N. Y. 413, 417, 18 N. E. Shepard v. Galveston, H. & H. R. Co., Rep. 249; Onthank v. Lake Shore & 2 Tex. Civ. App. 535, 22 S. W. Rep. M. S. R. Co., 71 N. Y. 194,8 Hun, 131, 267; Wolf V. Brass, 72 Tex. 133, 12 S. 27 Am. Rep. 35; Evangelical Lutheran W. Rep. 159. Home v. Buffalo Hydraulic Asso., 64 'Russell V. Napier, 80 Ga. 77,4 S. N. Y. 561; Kingsland v. Mayor, 45 E. Rep. 857 Hun, 198. 70 BY EXCEPTION OK EESEEVATION. [§§ 89, 90. II. By Exception or Reservation. 89. An easement may be created by an exception or reservation in the grantor's deed; ' tliougli, according to the strict rule of law, an easement, such as a right of way newly created, cannot be made the subject of an exception or reservation because " it is neither parcel of the thing granted, nor is it issuing out of the thing granted, the former being essential to an exception, and the latter to a reservation. " ^ A reservation, according to strict law, oper- ates by way of an implied grant from the grantee to the grantor. Tlie word ' ' heirs ' ' must, therefore, be used to create an easement in fee.' 90. An easement created by way of exception is not personal, though, the word " heirs " be not used, because an exception simply withholds from the grant the estate or rights excepted ; and if the grantor owned an estate in fee at the time of the conveyance he continues to own in fee the estate or rights excepted.* An exception, however, may be created by words of reservation, and in detennining whether a right is by way of exception or by way of reservation, little reliance can be placed upon the language used; but it is to be considered whether the right is a part of the thing which would have passed by the description, if it were not withheld from the operation of the deed, or whether it is a new right issuing out of the thing granted.^ Thus where a grantor reserves the privilege of passing with teams over the granted land to other land of his, and there was a road whicli he had prepared and used for that purpose, the reservation may be regarded as conferring the benefit of an exception, so that no words of inheritance are necessary.^ 'Jones V. Adams, 162 Mass. 224, 38 Co., 157 Mass. 489, 32 N. E. Rep. 659; N. E. Rep. 437; Claflin v. Boston & Bean v. French, 140 Mass. 229, 3 N. E. Albany R. Co., 157 Mass. 489, 32 N. E. Rep. 206; White v. Crawford, 10 Mass. Rep. 659; Bowen v. Conner, 6 Cush. 183; Winthrop v. Fairbanks, 41 Me. 132; Winston v. Johnson, 42 Minn. 307; Smith v. Ladd, 41 Me. 314; Wins- 398, 45 N. W. Rep. 958. ton v. Johnson, 42 Minn. 398, 45 N. W. ^Durham & Sunderland Ry. Co. v. Rep. 958; Babcock v. Latterner, 30 Walker, 2 Q. B. 940, 967, per Tindal, Minn. 417, 15 N. W. Rep. 689; Koelle C. J. V. Knecht, 99 111. 396; Emerson v. ^Jones, Real Properly, §§ 548, 554, Mooney, 50 N. H. 315. 555- ^ Jones on Real Property, §§ 503-510. ^ Wood V. Boyd, 145 Mass. 176, 13 ' Winthrop v. Fairbanks, 41 Me. 307. N. E. Rep. 476; White v. New York & To like effect, see Smith v. Ladd, 41 N. E. R. Co., 156 Mass. 181, 30 N. E. Me. 314; Borst v. Empie, 5 N. Y. 33. Rep. 6i2; Claflin v. Boston & A. R. 71 § 91. J CEEATED BY GRANT. If the plain purpose of the parties to a convejaace is to preserve to the grantor an existing right, and not to create a new one, the fact that the word " reserving " is used, wlien tlie word " excepting " should have been used, is of very little importance. The reserva- tion must be construed to be an exception or the provision would be without effect. ^ " Whether, in a given case, the language shall be construed to create an exception or a reservation will depend upon the situation of the property and the surrounding circumstances in the absence of a declaration in the deed by the parties of their intention as to the nature of the right. ' ' ^ Where there is a reservation of an easement in the land conveyed, the grantor's covenants of freedom from incumbrances and of war- ranty apply to the estate granted, that is, to the estate subject to the easement reserved.^ 9 1 . According to the strict rule of law a reservation by the gran- tor without the use of the word " heirs " gives him a life estate only.'' A reservation vests in the grantor some new right or inter- est which did not exist in him before, and is in legal effect a regrant from the grantee. Wliere one (■onve;\'ing a part of his land reserved to himself the privilege of a bridle road in front of his hoiise, this was held to be a reservation and not an exception, because the effect of the clause was to create an easement not before existing. The right which the grantor had to pass over any part of his estate, while he owned the w] lole of it, was held not to be an existing right of way over the part of the land conveyed.^ In a deed to a railroad company of a strip of land for a right of way, a reservation of " the right of passing and repassing and repairing my aqueduct logs forever, through a culvert six feet wide, ' Wood V. Boyd, 145 Mass. 176, 13 ^ Durham & S. R, Co. v. Walker, 2 N. E. Rep. 476; White v. New York & Q. B. 940, 967; Claflin v. B. & A. R. N. E. R. Co., 156 Mass. 181, 30 N. E. Co., 157 Mass. 489, 32 N. E. Rep. 659; Rep. 612; Whitaker v. Brown, 46 Pa. Ashcroft v. Eastern R. Co., 126 Mass. St. 197. 196, 30 Am. Rep. 672; Bean v. French, * White V. New York & N. E. R. Co., 140 Mass. 229, 3 N. E. Rep. 206; 156 Mass. 181, 185, 30 N. E. Rep. 612, Jamaica Pond Aqueduct Co. v. Chand- per Morton, J.; Dennis v. Wilson, 107 ler, 9 Allen, 159; Curtis v. Gardner, 13 Mass. 591, 592. Met. 457; Hornbeck v. Westbrook, 9 'Jones V. Adams, 162 Mass. 224, 38 Johns. 73. N. E. Rep. 437; Wood v. Boyd, 145 ^^ Bean v. French 140 Mass. 229, 3 Mass. 176, 13 N. E. Rep. 476. And see N. E. Rep. 206 Brown v. Bank, 148 Mass. 300, 304, 19 N. E. Rep. 382. 72 BY EXCEPTION OE KESEEVATION. [§ 92. and rising in height to the superstructure of the railroad, to be built and kept in repair by said company, ' ' operates as a reservation, and not as an exception, and vests in the grantor an estate for life only. Such a provision clearly indicates that the intention of the parties was to confer upon the grantor a new right not previously vested in him, and which, therefore, could not be the subject of an exception.^ 92. A permanent easement appurtenant to land may be acquired toy a grantor by a clause of reservation, when it appears that such was the intention. It is immaterial whether the easement is techni- cally considered as founded on an exception, or reservation, or an implied grant. " "When by the construction of a grant it appears that it was the intention of the parties to create or reserve a right in the nature of a servitude in the land granted, for the benefit of other land owned by the grantor, no matter in what form such intention may be expressed, such right, if not against public policy, will be held to be appurtenant to the land of the grantor, and binding on that conveyed to the grantee, and the right and burden thus created and imposed will pass with the lands to all subsequent grantees. ' ' ^ Similar language was used by Mr. Jus- tice Bigelow of the Supreme Court of Massachusetts, saying: " When therefore it appears by a fair interpretation of the words of a grant that it was the intent of the parties to create or reserve a right, in the nature of a servitude or easement in the prop- erty granted, for the benefit of other land owned by the grantor, and originally forming with the land conveyed one parcel, such right will be deemed appurtenant to the land of the grantor and binding on that conveyed to the grantee, and the right and burden thus created will respectively pass to and be binding on all subse- quent grantees of the respective lots of land. Cases have arisen where the owner of a large tract of land, for the purpose of provid- ing an area in front of it, to be kept forever open, or securing its permanent use and enjoyment for dwellings and excluding all offensive and noxious trades from the premises, has inserted cove- ' Ashcrof t V. Eastern R. Co., 126 37 N. J. Eq. 284; Newhoff v. Mayo, 48 Mass. ig6, 30 Am. Rep. 672. N. J. Eq. 619, 624, 23 Atl. Rep. 265; ' Coudert v. Sayre, 46 N. J. Eq. Bowen v. Conner, 6 Cush. 132; Men- 386, 395, 19 Atl. Rep. igo, per Van dell v. Delano, 7 Met. 176; Winthrop Fleet, V. C. ; Hagerty v. Lee, 54 N. v. Fairbanks, 41 Me. 307; KarmuUer J. L. 580, 25 Atl. Rep. 319, affi'g 26 v. Krotz, 18 Iowa, 352. Atl. Rep. 537; Cooper v. Louanstein 73 § 93. J OEEATED ET GEANT. nants or conditions in his grants, restricting the use of the land con- veyed so as to effect these objects. It has been held in such cases, on the grounds just stated, that each grantee of a part of the land subject to such restrictions is bound to observe the stipulations in favor of other grantees of a part of the same land, and is entitled to claim a like observance in his own favor as against them." ^ The owner of the land on the south side of the lower falls in the outlet of Lake George, and also the bed of the stream, conveyed the bed of the stream to the owners of the land on the north side, reserving to himself, his heirs and assigns, the right to abut a dam on both sides of the stream. The deed was construed as a covenant, as it could have no effect as an exception. " The deed of Schuyler [the owner] did not convey, or profess to convey, any part of the north shore ; he could not therefore reserve a right to build a dam against it. But, though void as an exception, the reservation is binding upon the grantees and their assigns, and becomes operative either as an implied covenant or by way of estoppel. The deed is to be construed as though the parties had mutually covenanted that each should have a right to butt a dam upon the shore of the other. ' ' ^ 93. A reservation of an easement which is intended to be appur- tenant to the land retained by the grantor is not within the rule that the word " heirs " must be used to create an estate which will extend beyond the party making the reservation.^ " The question whether such an easement is a personal right, or is to be construed to be appurtenant to some other estate, must be determined by the fair interpretation of the grant or reservation creating the easement, aided, if necessary, by the situation of the property and the sur- rounding circumstances. ' ' * ' Whitney V. Union R. Co., ii Gray, 435; Bangs v. Parker, 71 Me. 4.58; 359. 365, 71 Am. Dec. 715, per Bige- Winthrop v. Fairbanks, 41 Me. 307; low, J. Approved in Kuecken v. Smith v. Ladd, 41 Me. 314; Karmuller Voltz, no 111. 264. V. Krotz, 18 Iowa, 352; Kuecken v. 'Case V. Haight, 3 Wend. 632, 635, Voltz, no 111 264; Koelle v. Knecht, Arthur V. Case, i Paige, 447, per Suth- gg 111. 396; Garrison v. Rudd, 19 111. erland, J. 558; Lathrop v. Eisner, 93 Mich. 5gg, ^Jones on Real Property, § 551; 53 N. W. Rep. 791; Winston v. John- Chappell V. New York, N. H. & H. R. son, 42 Minn. 398, 45 N. W. Rep. 958; Co., 62 Conn. ig5, 207, 17 L. R. A. 420; Long v. Fewer, 53 Minn. 156, 54 N. W. Peck V. Conway, 119 Mass. 546; Han- Rep. 1071; Burr v. Mills, 21 Wend, key V. Clark, no Mass. 262; Bo wen v. 290; Borst v. Empie, 5 N. Y. 33; Witt Conner, 6 Cush. 132; Dennis v. Wil- v. Jefferson, 13 Ky. L. Rep. 746. son, 107 Mass. 591; Brown v. Thissell, ■'Peck v. Conway, 119 Mass. 546, 6 Cush. 254; Tuttle v. Walker, 46 549, per Morton, J. Me. 280; Herrick v. Marshall, 66 Me. 74 BY EXCEPTION OE EESEEVATION. [§■ 94. Thus wliere a grantor reserved the privilege of a right of way and the privilege of drawing water from a ditch which supplied tlie grantee's mill for the accommodation of the grantor's mill below, the point was made, that the latter stipulation was a bare license to the grantor so long as he might continue to own the mill ; but it was held that it was an easement permanently attached to the grant- or's mill. The court on this point said: " This claim is in conflict with all the facts of the case. The right to the water is resei-ved without limitation as to time. It was made for the benefit of the mill below, and manifestly was designed to be appurtenant to it. It would not only be beneficial so long as the grantor should own the mill, but would enhance its vahie to some extent when sold. ' ' ' 94. Whether a right reserved in a deed is a personal right, an easement in gross, or a permanent easement appurtenant to other estate of the grantor, is a question to be determined from the intent of the parties as gathered from the language employed to express it, read in the light of the surrounding circumstances, in case the reservation is without words of inheritance.^ Where one owning two mills on a stream convej'ed the upper one, reserving the right to take water from the dam of the upper mill for the necessary accommodation and use of the old shop below, it was objected that the reservation was personal to the grantor and not assignable, the reservation not being to the grantor and his assigns. "Let us for a moment," say the court, "examine the language of the reservation, and see what are the rights of the grantors under that. It is true that the right is reserved to them, without words of inheritance, and without naming their assigns. But it becomes material to enquire for what purpose the reservation was made. It was ' for the necessary accommodation and use of the old shop.' Of this they were the owners in fee simple; and can it be supposed that they meant to limit the use of the water, without which the establishment was of no value, to their own per- sonal occupancy ? And can it be believed that such was the inten- tion of the parties to this deed? The idea is opposed to every pre- ' Randall v. Latham, 36 Conn. 48, 401, 16 Am. Rep. 46; Winston v. John- 53. son, 42 Minn. 398, 45 N. W. Rep. 958; 'Russell V. Heublein, 66 Conn. 486, KarmuUer v. Krotz, 18 Iowa, 352; 34 Atl. Rep. 486; Chappell v. New Bowen v. Conner, 6 Gush. 132; Dyer York, N. H. & H. R. Co., 62 Conn. v. Sanford, 9 Met. 395, 43 Am. Dec. 195, 24 Atl. Rep. 997. 17 L. R. A. 420; 399; Mendall v. Delano, 7 Met. 176; Mather v. Chapman, 40 Conn. 382, Borst v. Empie, 5 N, Y. 33. 75 § 95. ] CEEATBD BY GEANT. sumption and to all probability. Are we, then, prevented, by any rigid rule of construction, from giving effect to the intention of the parties ? We know of none, and we think this part of the case entirely free from doubt. ' ' ' "Where one conveyed land fronting upon a street and running back to an alley "reserved" by the grantor, but describing the alley and declaring that it was to be used as such and for no other purpose, it was held that the grantee had an easement in the alley as appurtenant to the land conveyed to him. The word ' ' reserved ' ' was regarded as merely descriptive of the alley and as an assurance that the strip of land described as an alley had been set apart by the grantor for alley purposes as appurtenant to, and for the benefit of, the abutting lots into which he was dividing the land.^ That a reservation naturally operates to enhance the value of the grantor's other lands is a strong indication of his intention that it should be appurtenant to his estate and not merely personal to himself.^ Thus where the owner of lands fronting on a river on which he had a warehouse and landing, conveyed a part to a steam mill company as a site for their mill, reserving to himself, his heirs and assigns, the right to erect and have a warehouse and landing on any part of the granted land, and prohibiting such use of the prop- erty by the grantee, it was held that the easement was not personal to the grantor, but appiirtenant to the lands he retained and passed to a subsequent pui-chaser.^ 95. In case of a reservation of an easement of way without words of inheritance, it does not follow that it is personal merely. " Its character must be determined by the purposes for which the way was intended to be used. Those purposes being ascertained from the terms of the deed, aided, if necessary, by the situation of the property and the surrounding circumstances, the deed is to be con- strued accordingly. If the apparent purpose was for ingress and egress to and from the grantor's other land, that stamps the char- acter of the way ; and the grantor cannot use it for other purposes, not connected with the occupation of such other land. A way is a means of passage from some place to some other place. A road- ' Kennedy v. Scovil, 12 Conn. 317, 341, 83 Am. Dec. 632; Whitney v. 326, per Bissel, J. Union R. Co., 11 Gray, 359, 71 Am. ''Long V. Fewer, 53 Minn. 156, 54 Dec. 715; Sharp v. Ropes, no Mass. N. W. Rep. 1071, per Mitchell, J. 381. ' Parker v. Nightingale, 6 Allen, ■* McMahon v. Williams, 79 Ala. 288. Y6 BY EXCEPTION OR EESEEVATION. [g 0(i. way or path, wliicli leads to no place or object to wliicli a person has an interest or right to go, is not a ^vay. The rights of the grantor in the way in qnestion here, after lie sold his other land and had no right to enter upon it, were reduced to mere nonentity, if they were only personal rights when reserved. Unless appurte- nant to the land, his way was a useless cul de sac.^^ ^ Where the owners of a piece of land and a valuable wharf on a navigable river conveyed to a railroad company a right of way for its track through the land, separating the wharf from the land on the other side, they reserved to themselves without words of limi- tation, the privilege of crossing and recrossing the strip of land con- veyed, and afterwards conveyed their remaining land to others who claimed the right of way across the railroad track as indispensable to the use of the wharf. It was held, that the right of way reserved was not an easement in the grantors alone, but was for the benefit of the owners of the wharf lot whoever they might be. " If, in construing the ' reservation ' in question," say the com't, " "We lay out of view the technical rule above mentioned, it is difficult to believe that the parties to the deed intended that the right to cross was only to exist during the lives of the grantors. The situation and needs of the grantor's premises seem to forbid such a belief. The way at the date of the deed was an existing one, plainly visible, and necessary, and in almost constant use. * * * Then again, if the deed had been silent as to the right to cross, the law would have given an adequate ' way of necessity ' in favor of the owners of the premises. In the absence of any relinquishment of such a way of necessity in the deed, it is hard to believe that the parties intended, by an express reservation, made under these circumstances, to give to the grantors or allow them to retain a less extensive right than the law would have given if nothing had been said in the deed about the right to cross. ' ' ^ 96. On the other hand the surrounding circumstances may show that a right of way reserved was a personal, and not a permanent right. Thus where the owners of adjoining lots, called the north and south lot, had recently leased certain sheds on the north side of the south lot for a term of years, and the only access to the street 'Dennis v. Wilson, 107 Mass. 591, ' Chappell v. New York, N. H. & 593, per Wells, J. And see Lathrop v. H. E.. Co., 62 Conn. 195, 202, 24 Atl. Eisner, 93 Mich. 599, 53 N. W. Rep. Rep. 997, 17 L. R. A. 420, per Tor- 791. ranee, J. 77 §§ 97, 98. J CEEATED BY GEANT. from the sheds was across the rear from the house lot, they, ia a sub- sequent deed of the south lot, subject to said lease, made the follow- ing reservation, " reserving a passway for ourselves across said lot herein conveyed. ' ' This passway, if appurtenant to the north lot, would seriously injure the value of the south lot. Such a passway was, moreover^ unnecessary for the accoinmodation of the north lot which had a sufficient access to the street in other ways. More- over, it would be practically impossible to use a passway over the south lot from the north lot except by taking down a brick wall and removing the sheds, and there was no suggestion that the wall was to be taken down or the sheds removed, and they, in fact, had remained ever since. It was held that this reservation, under the circumstances, was to be construed as a reservation of the rights of passway contained by implication in the lease, and not of a per- manent right of way appurtenant to the north lot.* 97. A right of way appurtenant to land conveyed may be granted by a separate deed, notwithstanding the general rule that a right of way does not so jDass, unless the grantor in the conveyance uses lan- guage sufficient to create an easement anew, or unless the easement is absolutely necessary to the enjoyment of the permises. The rule is to be applied within its spirit, and not upon such a technical con- struction or application as to defeat the real intent of parties and do injustice. Thus a deed granting a right of way to the owner of a certain lot, " his heirs, assigns, and the tenants and occupiers thereof, at all times, forever," executed on the same day as the deed conveying the lot to him by metes and bounds, creates an easement appurtenant to such lot. " We attach great importance, " say the court, " to the fact that the conveyance of the lot and the easement were transactions between the same parties on the same day, and in a way to justify a conclusion that the easement was intended as an appurtenance to the lot. ' ' ^ 98. Whether a reservation of road or way is a reservation of the fee or of an easement depends upon the intention of the parties as shown by the deed in connection with the subject-matter of the deed. Regard may be had in such case to the rule that a deed is always construed in favor of the grantee and against the grantor, ' Russell V. Heublein, 66 Conn. 486, ' Moll v. McCauley, 83 Iowa, 677, 34 Atl. Rep. 486. 50 N. W. Rep. 216. 78 BY EXCEPTION OR EESEEVATION. [§ 99. and a reservation in behalf of the latter will not be enlarged beyond the fair and natural import of the language used.^ A conveyance of a city lot described by metes and botmds " excepting and reserving therefrom a strip of land ten feet wide * * * across the rear or inner end * * * ^qj. ^j^ alley " passes to the grantee the title to the fee of that part of the lot excepted and reserved, the grantor retaining only an easement of way over the strip. ^ A conveyance of a parcel of land, described as bounding on one side on a way of a certain width, passes the title to the center of the way, with an easement of way over the other half of the strip described as a way, and subject to a like easement reserved to the grantor over the half of the way conveyed, in case he is the owner of the land on the opposite side of the way; and subject as well to whatever rights of way existed in others at the time.^ And so where one conveyed land bounded upon one side by a private way " reserving that the said driveway between said houses as now laid out shall remain open and common to all parties having the right to enter thereon," the grantee took title in fee to the center of the driveway, with a right of way over the other half, the half belonging to him being subject to a similar right of way on the part of all parties having the right to enter upon the driveway.* 99. The extent of the easement reserved is to be ascertained from a reasonable interpretation of the language of the deed. The use of the easement mi^st be confined strictly to the purposes for which it was created. Thus where one conveyed land reserving the right to draw water by means of a pipe from a well on the land conveyed for the family occupying the grantor's remaining premises, the right reserved is to draw water for the ordinary purposes of a family, but not for the additional use of a bakery.^ The extent of the restriction depends not only upon the language of the restriction but upon the intent of it, and for this purpose all the clauses of the deed are to be construed together. A deed of ' The Redemptorists v. Wenig, 79 Boston v. Richardson, 13 Allen, 146, Md. 348, 29 Atl. Rep. 667; Winston v. 153; Fisher v. Smith, 9 Gray, 441; Johnson, 42 Minn. 398, 45 N. W. Rep. Lindsay v. Jones, 21 Nev. 72, 25 Pac. 958; Huttemeier V. Albro, 18 N. Y. 48. Rep. 297. 'Winston v. Johnson, 42 Minn. 398, ■• Boland v. St. John's Schools, 163 45 N. W. Rep. 958. Mass. 229. ^ Lewis V. Beattie, 105 Mass. 410; ^ Noyes v. Hemphill, 58 N. H. 536. Stark V. Coffin, 105 Mass. 328, 330; 79 CREATED Br GEANT. [§§ 100, lOl land ' ' for the purpose of creating proper water wheel and races, ' ' containing a provision that " no building is to be erected on said lot that shall materially increase the fire exposure of the building on either side, also no building that shall darken any light within three feet of the west line of said lot, ' ' does not restrain the use of the lot to the purposes of a water wheel and races. ^ 100. The purpose of a reservation of an easement may deter- mine the rights under it. A reservation in a deed executed by a boom company of a free and unobstructed passage along the banks of said river, and across the land conveyed, for the employes of the grantor, with teams and men, in carrying on said business, a con- siderable portion of which consisted in removing logs which had floated from the river on which it operated onto adjacent lands, and returning them to the river to be run to their place of destina- tion, is construed to give to the company the right to go upon said land with teams and men and remove the saw-logs which had floated thereon, and place them in said river for the purpose of running them to their destination.^ 101. A reservation in a deed cannot create an easem.ent in a stranger to it.^ Thus one cannot reserve a portion of the granted land which he had already conveyed to another ; but the reservation may operate as an exception. An exception of a particular lot, or of the rights of a particular person therein, is not repugnant to the grant. An exception is not considered inconsistent with a grant, unless it is so repugnant to it that the grant would be practically inoperative.'* "It has been repeatedly held, " say the court in Stockwell V. Couillard, " that a conveyance of land, reserving or excepting the dower set off to a Avidow, was a good exception of her interest therein.^ The interest set off to the widow is capable of being made certain. So an exception of land taken for a highway, 'Tinker v. Forbes, 136 111. 221, 26 Ives v. Van Auken, 34 Barb. 566; N. E. Rep. 503. Young, Petitioner, 11 R. I. 636. 'Bradley v. Tittabawassee Boom * Jones on Real Property, § 529; Co., 82 Mich, g, 46 N. W. Rep. 24. Stockwell v. Couillard, 129 Mass. 231; 'Jones on Real Property, § 528; Sprague v. Snow, 4 Pick. 54; Bridger Murphy v. Lee, 144 Mass. 371, 374, v. Pierson, 45 N. Y. 601. II N. E. Rep. 550; Stockwell V. Couil- ' Canedy v. Marcy, 13 Gray, 373 lard, 129 Mass. 231, 233; Moulton v. Meserve v. Meserve, 19 N. H. 240 Faught, 41 Me. 298; Bridger v. Pier- Crosby v. Montgomery, 38 Vt. 238 son, 45 N. Y. 601; Nellis v. Munson, Swick v. Sears, i Hill, 17. 108 N. Y. 453, 461, 15 N. E. Rep. 739; 80 BY EXCEPTION OB EESEKVATKiX. [§ 102. or for a railroad, is a valid exception.' And wliere a tract of land was granted, ' except what I have heretofore conveyed to divers persons, ' it was held that it conveyed only the lands not pre-viously granted. ' ' ^ Where the owner of several lots of land conveys one of them with the statement that there is a passageway on the south-easterly side of the said premises which is to be nsed in common with the abi^tter,-^ thereon, this does not confer any right uj^on a stranger who owned land on the other side of the passageway from the grantor's land.'' An easement cannot be created by reservation in favor of other land which the grantor had previously conveyed to another and on which he then held a mortgage as security for the purchase-money. The estate of a mortgagee is not one in favor of which an easement can be reserved. The mortgagee holds the legal estate merely for the protection of his interests and when the debt is paid the mort- gage is discharged.* 102. One can impose no servitude on land he conveys in favor of other land retained by him in derogation of his grant without an express reservation to that effect.^ " If a man convey land which is covered by his mill-pond, without any reservation, he loses his right to flow it. There is no room for implied reservation. A man makes a lane across one farm to another which he is accustomed to use as a way; he then conveys the former, without reserving a right of way ; it is clearly gone. A man cannot, after he has abso- lutely conveyed away his land, still retain the use of it for any pur- ' Richardson v. Palmer, 38 N. H. life or [till] she sells." It was held 212; Munn V. Worrall, 53 N. Y. 44, 13 that R. had the right to use the pass- Am. Rep. 470. way during her life, or till she should ' Cornwell v. Thurston, 59 Mo. 156. sell the land occupied by her; and that See also Wooley v. Groton, 2 Cush. 305 ; the privilege extended to the members Forbush v. Lombard, 13 Met. 109; of her family residing with her, in. Sawyer v. Coolidge, 34 Vt. 303; Moul- eluding her husband, ton V. Trafton, 64 Me. zi8; Young, 'Murphy v. Lee, 144 Mass. 371, 11 Petitioner, ir R. L 636; Dolan v. Trele- N. E. Rep. 550. van, 31 Wis. 147; Pettee v. Hawes, 13 ''Tibbetts v. Tibbetts, 66 N. H. 360, Pick. 323; Cjok V. Farrington, loGray, 20 Atl. Rep. 979. 70. * Sloat V. McDougal, 9 N. Y. Supp. In Griffith v. Rigg (Ky.) 37 S. W. 631; Simmons v. Sines, 4 Abb. Dec. Rep. 58, a grantor reserved a passway 246, 248; Outerbridge v. Phelps, 13 to a third person, an adjoining owner, Abb. N. C. 117, 124, 58 How. Pr. 77, in terms: " Be it known that R. is to 13 J. & S. 555; Schrymser v. Phelps, have the privilege of a passway from 62 How Pr. i. R.'s orchard round to a gate during her [6] 81 §§ 103, 104. J CEEATED BY GEANT. pose, witliout an express reservation. The flowing or the way are but modes of use, and a grantor might as well claim to plough and crop his land." ' 103. The grantee of land subject to an easement reserved may- use the land in such a manner as not to interfere unnecessarily with the enjoyment of the easement, Thus, where the owner of a farm conveyed, to a railroad company, a portion of it, upon which was a spring which he had been accustomed to use for the supply of water for his farm, and in the conveyance he reserved the spring as before used by him, it was held that the title to the land passed to the rail- road company subject to the easement, and that it was entitled to use and enjoy the land in all lawful ways not inconsistent with the light reserved to the grantor, and that it was entitled to lay its tracks over the spring on protecting its waters from injury, so as not unnecessarily to interfere with the enjoyment of the easement reserved by the grantor.^ For a small consideration the owner of a farm granted to another the right to dig out and stone up a spring and conduct water therefrom through the grantor's land by a pipe of a specified size to the grantee's house. He warranted this right. This did not render the grantor's whole farm servient to the easement; and it was therefore held that the grantor might lawfully sink another spring only twenty seven feet distant from the granted spring although the effect was to render that spring useless.' III. By Covenant or Condition. 104. While easements are generally acquired by grant or pre- scription it is also true that they may be acquired by contract, where from the nature of the subject-matter it is evident that the parties intended that privileges designed for the permanent use of the property should form an incident of the principal contract. Thus, a tenant has the right to the enjoyment of such light and air as the building demised was intended to afford as an incident of the hiring, in the nature of an easement.^ "Where the owners of adja- ' Burr V. Mills, 2i Wend. 2go, 292, Dec. 157; Atkins v. Bordman, 2 Met. per Cowen, J. 457, 467, 37 Am. Dec. 100. 'Matthews v. Delaware & Hudson 'Bliss v. Greeley, 45 N. Y. 671. 6 Canal Co., 20 Hun, 427. And see also Am. Rep. 157. Bliss V. Greeley, 45 N. Y. 671, 6 Am. * O'Neill v. Breese, 3 Misc. Rep. 219, 23 N. Y. Supp. 526. 82 BY COVENANT OR CONDITION. [§ 105. cent parcels of land lay out a way upon the boundary line for the benefit of their lands by mutual agreement, the way is annexed as an easement to their lands, and by a subsequent conveyance by either, his grantee takes the benefit of the right of way which his grantor had, and holds his land subject to the burden imposed by the agreement of the original owners.' The agreement may be enforced in equity by a purchaser from one of sucli owners, against a purchaser from the other with notice.^ The acceptance of a deed of land containing a recital that, as a part of the consideration, the grantee agreed to open and construct a public way to lead in a certain direction across his land and the land therein conveyed, and to prepare and keep the same open for travel until accepted by the city, operates, by way of reservation or implied grant, to create an easement over the land then conveyed for the benefit of the grantor's remaining land.' Where the proprietors of adjacent lands by deed agreed that each would appropriate from his land a strip to be used in common for a public street, and conveyances and improvements have been made on the faith that the street would be opened, the agreement may be enforced in equity, whether the public authorities accept the street as dedicated to public use or not.* 105. An easement may be created by the word "agree;" as where a deed contained a clause by which the grantors agree that no building shall be erected on their adjoining lot nearer than four feet from the division line, and this right was conferred for the benefit of the land conveyed.' An easement of a private way is created where a grantor " agrees " to open and use as a private alley a specified strip of land across other land belonging to him." A con- tract giving one the right to pass over the lands of another is an easement, extending only to a temporary disturbance of the owner's possession.' 'Shields v. Titus, 46 Ohio St. 528, 'Hathaway v. Hathaway, 159 Mass. 22 N. E. Rep. 717. 584, 35 N. E. Rep. 85, ''Jones on Real Property, §§ 744-747, ■• Seegar v. Harrison, 25 Ohio St. 14. 780-782, Western v. MacDermott, L. R. ^ Hogan v. Barry, 143 Mass. 538, 10 2 Ch. 72; Hills V. Miller, 3 Paige, N. E. Rep. 253. 254; Barrow V. Richard, 8 Paige, 351, 35 * Shannon v. Timm, 22 Colo. 167, 43 Am. Dec. 713; Tallmadge v. East River Pac. Rep. 1021. Bank, 26 N. Y. St. 105; Shields v. 'Cook County v. Chicago, B. & Q. Titus, 46 Ohio 528, 22 N. E. Rep. R. Co., 35 111. 460. 717; Seegarv. Harrison, 25 Ohio St. 14. 83 § 106.] CREATED BY GEANT. The owner of land through which a railroad was built released the railroad company for a consideration from damages occasioned by a land slide, and at the same time by writing, imder seal, agreed, that if further land slides should tliereafter occur, he and his heirs and legal representatives would consider the sum paid as full com- pensation for all future damages. Another land slide having occurred the heir-at-law of such owner sought to recover damages for the injury thereby occasioned. It was held that by virtue of the covenant contained in the agreement the railroad company acquired an easement in the land ; and that the heir inherited the land sub- ject to the servitude and could not recover.' The instrument was not a grant or a conveyance, but in effect an agreement or covenant not to sue for any damages thereafter occur- ring; biit no reason is apparent why the bui-den should not be imposed by a covenant, since by its nature it could have been given by grant. The covenant ran with the land and subjected the same, in the hands of the son, to all the burden that it imposed against the father. 106. An easement or servitude may be created by a covenant or condition, if it appears that it was the intention of the parties to create such a right for the benefit of the grantor's other land and the covenant is such that it may be made appurtenant. The doc- trine is clearly stated by Vice Chancellor Van Fleet of Xew Jersey in a recent case : ^ " That when it appears by the true construction of the terms of a grant that it was the well understood pui-pose of the parties to create or reserve a right, in the nature of a seiwitude or easement, in the property granted, for the benefit of other land owned by the grantor, no matter in what form such purpose may be expressed, whether it be in the form of a condition, or covenant, or reservation, or exception, such right, if not against public policy, will be held to be appurtenant to the land of the grantor, and bind- ing on that conveyed to the grantee, and the right and burthen thus created and imposed will pass with the lands to all subsequent gran- tees. And any grantee of the land to which such x-ight is appurte- nant acquires, by his grant, a right to have the servitude or ease- ment, or right of amenity, as it is sometimes called, protected in equity, notwithstanding that his right may not rest on a covenant which, as a matter of law runs with the title to his land, and not- ' Van Rensselaer v. Albany & W. S. ^ Coudert v. Sayre, 46 N. J. Eq. 386, R. Co., 62 N. Y. 65, 3 T. & C. 620, affi'g 395. I Hun, 507. 84 BY COVENANT OR CONDITION. [§ 107. •withstanding that it may also be true that he may not be able to maintain an action at law for the vindication of his right. ' ' * 107. Covenants in restraint of trade cannot be annexed as appur- tenant to land, or be regarded as an easement in favor of one tene- ment imposing a servitude upon another. Such a covenant is per- sonal merely. Thus a covenant by a grantor that neither he nor his assigns will sell any marl from his adjoining land will not be enforced against a purchaser of such land intended to be burdened by such covehant.^ "Where one conveyed a few acres of land situated at a railroad junction and covenanted with his grantee that the latter should have exclusive mercantUe privileges, and that neither the grantor nor his heirs or assigns would carry on any mercantile business upon the grantor's remaining land — a large tract of nearly four hundred acres — it was held that these covenants did not attach to the grant- or's remaining land as running with the land, or as servitudes upon it in favor of the land conveyed to the grantee. Accordingly, the grantor having conveyed a parcel of his remaining land to another, restricting the grantee from any mercantile privileges, and this grantee having conveyed the parcel to another by a general war- rauty deed without restrictions, it was held that this last grantee could not be restrained from establishing a mercantile business on his land. The court regarded the covenants as purely personal, — not touching the land. " The exclusive right of carrying on a trade upon any 'Joy V. St. Louis, 138 U. S. i, 11 S. & S. R. Co., 62 N. Y. 65, affi'g i Hun, Ct. Rep. 243; Coles V. Sims, 5 De G. M. 507, 3 T. & C. 620; Trustees v. Lynch, & G. I; Western v. MacDermott, L. 70 N. Y. 440, 26 Am. Rep. 615; Valen- R. I Eq. 499, L. R. 2 Ch. 72; Whitney tine v. Schreiber, 3 N. Y. App. D., 235, V. Union Ry. Co., 11 Gray, 359, 71 73 N. Y. St. 838, 38 N. Y. Supp. 417; Am. Dec. 715; Parker v. Niglitin- Wetmore v. Bruce, 118 N. Y. 319, 23 gale, 6 Allen, 341, 83 Am. Dec. 632; N. E. Rep. 303; Hills v. Miller, 3 Paige, Hogan V. Barry, 143 Mass. 538, 10 N. 254, 24 Am. Dec. 218; Watertovvn v. E. Rep. 253; Ladd v. Boston, 151 Cowen, 4 Paige, 510, 27 Am. Dec. 80; Mass. 585, 24 N. E. Rep. 858; Schwoe- Middletovvn v. Newport Hospital, 16 rer v. Boylston Market Asso., 99 Mass. R. L 319, 15 Atl. Rep. 800; Pinkum v. 285; Stetson V. Curtis, iig Mass. 266; Eau Claire, 81 Wis. 301, 51 N. W. Rep. Bronson v. Coffin, 108 Mass. 175, 180, 550. II Am, Rep. 335; Barr v. Lamaster, 48 ''Brewer v. Marshall, 19 N. J. Eq. Neb. H4, 66 N. W. Rep. mo; Coudert 537, 97 Am. Dec. 679. See Jones on V. Sayre, 46 N. J. Eq. 386, 395, ig Atl. Real Property, § 737, and cases cited. Rep. 190; Kirkpatrick v. Peshine, 24 particularly Keppell v. Bailey, 2 Myl. N. J. Eq. 206; Gawtry v. Leland, 31 N. & K. 517, 535 J. Eq. 385; Van Rensselaer v. Albany 85 § 108, 109.J CEEATED BY GRANT. lot is not an easement; and although a covenant not to carry on such trade upon his adjoining property may bind the covenantor, he cannot make it a servitude upon that property so as to burthen it in the hands of purchasers. ' ' ' 108. The covenant or condition may be enforced in equity as a restriction upon the use of the property. " A covenant, though in gross at law, may nevertheless be binding in equity, even to the extent of fastening a servitude or easement on real property, or of securing to the owner of one parcel of land a privilege, or, as it is sometimes called, ' a right to an amenity ' in the use of an adjoin- ing parcel by which his own estate may be enhanced in value or rendered more agreeable as a place of residence. ' ' ^ An agreement under seal between the owners of adjacent land;-', that one shall sink a well in the land of another, and shall have access' to it and the right to take water from it at all times, creates an ease- ment appurtenant to his land.^ Any restriction of the use of land, not against public policy, and beneficial to the adjacent land of the grantoj', whether in the form of a condition, covenant or agreement, may be enforced in equity against the grantee or his assigns with notice.'' When adjoining owners of land by grant or mutual covenants impose mutual and corresponding restrictions upon the lands of each, such restric- tions are reciprocal easements, the enjoyment of which passes as appurtenant to the land, and the enforcement of which is within the jurisdiction of a court of equity.^ 109. The Twords " on condition " do not necessarily create a con- ditional estate, but as applied to a right of way may be construed as making a reservation of a mere easement of a way. Thus where a deed, conveying for a pecuniary consideration a right of way to a railway company, contains a condition that the railway company shall establish and maintain a reasonable passway and wagon-road across its railroad, but there is nothing further in the deed which is indicative of an intention to make the compliance ' Tardy v. Creasy, 8i Va. 553, 563. ^ Warren v. Syme, 7 W. Va. 4.75. 2 Parker v. Nightingale, 6 Allen, 341, " Whitney v. Union R. Co., 11 Gray, 344, 83 Am. Dec. 632, per Bigelow, C. 359. J. To like effect, Whitney v. Union * Wetmore v. Bruce, iiS N. Y. 31Q R. Co., II Gray, 359, 71 Am. Dec. 715; 322, 23 N. E. Rep. 303; Trustees v'. Barrow v. Richard, S Paige, 351, 35 Lynch, 70 N. Y. 440, 26 Am. Rep. 615. Am. Dec. 713. 86 BY COVENANT OE CONDITION. [§ 110. with such provision a condition subsequent to the grant, such pro- vision may be construed as a part of the consideration for the deed and as the reservation of a mere easement right.' A deed given upon condition that no buildings shall be erected upon the land conveyed other than dwelling-houses, may be enforced in equity as a restriction. If the condition was for the benefit of other land of the grantor, the purchasers of lots out of such land whose property will be injured by a violation of the condition, may maintain a bill in equity without joining the grantor who imposed the condition to prevent a violation of it. " The restriction on the use of the premises contained in the deed operated as a qualification of the fee, and was in the nature of a reservation or exception out of the estate granted. ' ' ^ 110. A covenant by the owner of land to use it or refrain from using it, in a particular manner for the benefit of the owner, of other land is in effect the grant of an easement, and the right to the enjoy- ment of it will pass as appurtenant to the land for the benefit of which the covenant was made.' Thus under a covenant not to use certain land for a livery stable the open and notorious use of the premises for such purpose under claim of right for the time suffi- cient to give title by prescription perfects the right to use the land in violation of the covenant.* An agreement by the grantor in a deed that no building shall be erected on a lot belonging to him adjoining the land conveyed ' Stilwell V. St. Louis & H. Ry. Co., hum v. Eau Claire, 8i Wis. 301, 51 N. 39 Mo. App. 221, 228. " The purpose W. Rep. 550; Clark v. Martin, 49 Pa. of the railroad company was to secure St. 289. the right of way for its road over the ' Parker v. Nightingale, 6 Allen, grantor's land; the latter was willing 341, 83 Am. Dec. 632, per Bigelow, C. to grant this right, provided a private J.; Ayling v. Kramer, 133 Mass. 12; road across the right of way was re- Fuller v. Arms, 45 Vt. 400. served, and arrangements made for its ^ Jones on Real Property, §§ 742, future maintenance. It is quite evi- 743, and cases cited; Trustees v. dent that neither party intended or Lynch, 70 N. Y. 440, 447, 26 Am. Rep. expected to make the title to the ease- »6i5, per Allen, J.; Stephens v. Hocke- ment granted depend upon the main- meyer, 19 N. Y. Supp. 666; Phoenix Ins. tenance of the private road. Such a Co. v. Continental Ins. Co., 87 N. Y. contract would have been against the 400; Peck v. Conway, 119 Mass. 546; interests of the company; and its en- Whitney v. Union R. Co., 11 Gray, 359, forcement, in case of violation, would 365, 71 Am. Dec. 715; Herrick v. Mar- by no means have restored to the shall, 66 Me. 435. grantor his property in its original con- ■* Stephens v. Hockemeyer, ig N. Y. dition." PerBiggs.J. See also Pink- S. 666, 46 N. Y. St. 329. 87 § 111. J CEEATED BY GKAJ^T. nearer to that land than a specified distance, creates an easement in the grantee over such land of the grantor. " If the seeming cove- nant," say, the court, " is for a present enjoyment of a nature recog- nized by the law as capable of being conveyed and made an ease- ment; — capable, that is to say, of being treated as a, jus in rem, and as not merely the subject of a personal undertaking, — and if the deed discloses that the covenant is for the benefit of adjoining land con- veyed at the same time, the covenant must be construed as a grant, and in the language of Plowden,* 'the phrase of speech amounts to the effect to vest a present property in you. ' An easement will be created and attached to the land conveyed, and will pass with it to assigns whether mentioned in the grant or not. ' ' ^ Such an ease- ment, however, cannot be made to attach to land which the grantor has already conveyed, although he then holds a mortgage upon it as security for the purchase -money. ^ A grantor in conveying certain laud in fee granted a right of way in a strip of land adjoining, sixteen feet in width, " to be used by the grantee in common with the grantor, said lane not to be encumbered or built upon by either party. ' ' A subsequent pur- chaser from the grantee erected a building which occupied four feet of the lane. In an action by the owner of the land on the opposite side of the lane it was contended that the easement was not intended to bind other than the immediate parties to the instrument, because the words, ' ' either party, ' ' used with reference to encumbering or building upon the lane, referred only to the parties to the deed. It was held, however, that the provision in regard to encumbering the lane, was one running Avith the land ; and that the words ' ' either party ' ' were not used in a restrictive sense, but as including all persons whom the party undertook to represent and bind with him- self, that is " his heirs, executors, administrators and assigns." ■* 111. Some easements of this class, which arise from re- strictions as to the use of land are termed equitable ease- ments, inasmuch as courts of equity recognize and enforce them. But there are many easements of this class, some of which are herein mentioned, of the enforcement of which, as of easements in general, courts of law have jurisdiction. All the easements here re- ' Plowd. 308. "Tibbetts v. Tibbetts, 60 N. H. 360, ' Hogan V. Barry, 143 Mass. 538, lo 20 Atl. Rep. 979. N. E. Rep. 253, per Holmes, J. " Dexter v. Beard, 130 N. Y. 549, 29 N. E. Rep. 983. BY COVENANT OE CONDITION. [§ 112. ferred to arise out of covenants and conditions restrictive of tlie ordinary rights of ownership, and such covenants are termed negative covenants and the easements created are termed nega- tive easements. They have been discussed at length by the author in the chapter of his work on "Real Property relating to Restric- tions as to the Use of Land, and therefore he does not take them up for further consideration here. Such restrictions generally create easements in favor of the estates for the benefit of which they are made. They run with the land in equity if they are for the permanent benefit of the land, and they are binding upon all who take the servient estate with notice of the restrictions.^ A limitation in a deed as to the character of the building that may be erected thereon, when made for the benefit of the grantor's adjoining land, creates an easement which wdl pass as an aj)purte- nance in a deed of such adjoining land, though not expressly mentioned in the deed. The limitation is in the nature of an exception ur reservation to the grantor of an incorporeal right in the land granted, and, the reservation being made for the benefit of the adjoining haK lot, such right is in the nature of an equitable ease- ment appurtenant to that lot.^ 112. An easement is called negative when the owner of the ser- vient tenement is restricted in the exercise of his natural rights of property for the use and benefit of the owner of adjacent land, as the dominant tenement. Such an easement is binding upon the servient tenement for the benefit of the dominant tenement, and passes with it.^ It is an incorporeal hereditament, which like any other easement can be created only by grant or prescription, and not by parol. Thus in a conveyance of land a limitation as to the char- acter of the buildings that may be erected thereon, made for the benefit of the grantor's adjoining land, creates an easement which will pass as appurtenant to such adjoining land.* The owner of land adjoining a railroad conveyed a strip to the company and agreed to erect and did erect on his own lands cattle yards for shipping cattle and he claimed that the company agreed to construct a railroad tract along his land and to run cars over it 'Jones on Real Property, §§ 784- ^ Herrick v. Marshall, 66 Me. 435; 801. Pitkin V. Long Island R. Co., 2 Barb. '' Tinker v. Forbes, 136 111. 221. 26 N. Ch. 221, 231, 47 Am. Dec. 320. E. Rep. 503; Fuller v. Arms, 45 Vt. ■• Tinker v. Forbes, 136 111. 221, 26 400; Ayling v. Kramer, 133 Mass. 12. N. E. Rep. 503. § 113. CEEATED BY GEANT. and to deliver and load cars from his cattle yards, to the end that he might enjoy the profits arisiag from keeping and feeding the stock. The railroad company laid down tracks on the land so con- veyed, and performed the agreement for a time, but afterwards refnsiag to do so, the land owner brought suit. It was held that the contract, if valid, m effect created an easement or servitude, which was to be binding upon the real property of the railroad com- pany, as tlie servient tenement, for the benefit of the plaintiff and his land, and those who should succeed the plaintiff in his real estate ; but that the negative easement acquired by the plaintiS ia the lands of the railroad company by virtue of the agreement, was an incorpo- real hereditament, the right or title to which could only pass by grant, or deed under seal, or be acquired by prescription; and that the contract on the part of the railroad company being by parol only, was void.^ An agreement made by a railroad company, with a person own- ing lands adjacent to the railroad, to establish and maintain a per- manent turnout track, and stopping place, at a particular point in the neighborhood of his property, and to stop there with the freight trains and passenger cars of the company, is, in substance, the grant of an easement which is binding upon the property of the raUroad company, as the servient tenement, for the benefit of the owner of such adjacent property, and of all those who shall succeed him, in his estate, as owners thereof. And such an agreement, to be valid, must be in writing.^ 113. Owners of adjoining'lots of land may impose mutual restric- tions upon the land of each, and the mutuality of their covenants is a sufficient consideration for their respective grants. Their cove- nants in such a case are construed as grants of reciprocal easements which may be enforced in equity when the remedy at law is insuffi- cient. Thus, where owners in severalty in adjoining lots, pursuant to an agreement between them, erected thereon buildings, correspond- ing in size, having the stairs, hallways, skylight and heating appa- ratus in common, it was held that the agreement was in effect a grant to each of an easement in so much of the stairs, halls and sky- light as was situated upon the lot of the other. The easement of each in the property of the other is owned in severalty, and the ' Day V. New York Cent. R. Co., 31 ^ Pitkin v. Long Island R. Co., 2 Barb, 548. Barb. Ch. 221, 47 Am. Dec. 320. 90 BY COVENAXT OR CONDITION. [§ 114. mere existence of such cross easements does not authorize the par- tition of such lots at the suit of either party.' The owners of lots bounding on Pemberton Square in Boston mutually covenanted that portions of some of the lots should not be built upon, or should not be built upon above a certain height. Afterwards the city took such lots for a site for the new court house. It was held that easements of light, air and prospect were created by the covenant, and that the city was liable in damages to the owner of another lot entitled to the benefit of such easements for their extinguishment.^ Mr. Justice Holmes, delivering the opinion, said : ' ' The right to have land not built upon, for the benefit of the light, air, etc. , of neighboring land, may be made an easement, within reasonable limits, by deed.^ And such an ease- ment may be created by words of covenant, as well as by words of grant.* In order to attach the easement to the dominant estate, it is not necessary that it should be created at the moment when either the dominant or the servient estate is conveyed, if the pur- port of the deed is to create an easement for the benefit of the domi- nant estate.^ Of course it does not matter that by the same deed numerous parties grant similar or reciprocal easements over, or in favor of, many parcels of land.* Neither is it material that the indenture provides that a majority of three-fourths of the owners of the lots concerned may terminate the rights which it creates." Where tenants in common of a parcel of land, laid out in build- ing lots, conveying to a city a strip of land running through it for a highway, covenanted for themselves, their heirs and assigns, that no building should be erected within eight feet of said street, it was held, that the clause was a mutual covenant between the tenants in common, and should be construed as a grant in fee to each of a negative easement in the lands of all, restricting the right to build within the specified limits, which could be enforced between the tenants in common, their heirs and assigns, at law and in equity.' 114. A condition that no building shall ever be erected on the granted land does not create 'a servitude upon it or easement for the ' Barr v, Lamaster, 48 Neb. 114, 66 ^Louisville & Nashville R. Co. v. N. W. Rep. mo. Koelle, 104 111. 455; Wetherell v. ' Ladd V. Boston, 151 Mass. 585, 24 Brobst, 23 Iowa, 586, 591. N. E. Rep. 858. *Tobey v. Moore, 130 Mass. 448; ^ Brooks V. Reynolds, 106 Mass. 31. Beals v. Case, 138 Mass. 138, 140. * Hogan V. Barry, 143 Mass. 538, 10 ' Greene v. Creighton, 7 R. I. i. N. E. Rep. 253. 91 § 11 5. J CREATED BY GRANT. benefit of adjoining land, unless so intended, and the burden is upon the party claiming that the right is annexed as an appurtenance to his land, to show it. " An easement or ser-s-i- tude of this description ought not to be held to be imposed for the benefit of an adjacent lot of land, in the absence of any words in the grant itself implying it, unless the circumstances and situation at the time of the grant were such as to make it mani- fest that the condition or restriction or reservation was intended to be for the benefit of such adjacent lot, and to be annexed to it as an appurtenance. ' ' - In a deed by one having other land and a residence on the same street, a provision that only buildings of a certain class should be built on the granted laud, and that they should be set back a certain distance from the street, ' ' with reversion to the grantor, his heirs and assigns, in case of any breach of such condition," is to be regarded as a condition or restriction, which creates an incumbrance on the grantee's land for which he would be liable upon a subsequent conveyance with covenants of warranty and against inciimbrances in an action for a breach of the latter covenant. The incumbrance is not in the nature of an easement or ser\'itude in favor of the premises owned and occupied l)y the original grantor on the same street. The restrictions or conditions inserted in his deed were undoubtedly an advantage to his other land; but for that reason alone these provisions cannot be construed as subjecting the land conveyed to an easement or servitude in favor of such other land. Wliether a condition or a restriction, it constitutes an incumbrance.^ 115. A purchaser may acquire an easement by an im.plied cove- nant, as where a plan by which the land was sold designates the adjoining land of the grantor for certain uses which are an advan- tage to the land sold. jVn association owning a large tract of land caused the greater part of it to be laid out and mapped in accord- ance with a plan of improvement, into lots, streets, avenues and parks. At a sale of lots a lithographic eo])y of the map was dis- tributed, upon which a portion of the land was marked as " The Ramble, ' ' and in this portion ground was marked as a site for a chapel. Purchasers of lots laid