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Full text of "Introduction to the law of real property : Rights in land"

THE LIBRARY 

OF 

THE UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 

SCHOOL OF LAW 
GIFT OF 

Harold E. Ives 



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CASES ON THE LAW OF PROPERTY 


VOL. I. 


PERSONAL PROPERTY. 




By Harry A. Bigelow, Professor of Law in the 
University of Chicago. 


VOL. IL 


RIGHTS IN LAND. 




By Harry A. Bigelow. 


VOL. in. 


TITLES TO REAL PROPERTY. 




By Ralph W. Aigler, Professor of L&w in the 
University of Michigan. 


VOL. IV. 


FUTURE INTERESTS. - 




By Albert M. Kales, of the Chicago Bar, former- 
ly Professor of Law in Harvard University. 


VOL. V. 


WILLS, DESCENT, AND ADMINISTRA- 




TION. 




By George P. Gostigan, Jr., Professor of Law in 
Northwestern University. 



2 Bio.Pbof. (il) 



CASES ON THE LAW OF PROPERTY 
VOLUME 2 

INTRODUCTION TO THE LAW OF 
REAL PROPERTY 



RIGHTS IN LAND 



BY HARRY A. BIGELOW 

PBOFESSOB OF LAW IN THE UNIVEBSITT OF CHICAGO 



AMERICAN CASEBOOK SERIES 

WILLIAM R. VANCE 

GENERAL EDITOB 



ST. PAUL 

WEST PUBLISHING COMPANY 
1919 






Copyright, 1919 

BT 

WEST PUBLISHING COMPANY 

(2BIG.PR0P.) 



^ ■//■// >v^..^^/i; >..-, 



f D 



THE AMERICAN CASEBOOK SERIES 



The first of the American Casebook Series, Mikell's Cases on Crim- 
inal Law, issued in December, 1908, contained in its preface an able 
argument by Mr. James Brown Scott, the General Editor of the Se- 
ries, in favor of the case method of law teaching. Until 1915 this 
preface appeared in each of the volumes published in the series. 
But the teachers of law have moved onward, and the argument 
that was necessary in 1908 has now become needless. That such 
is the case becomes strikingly manifest to one examining three im- 
portant documents that fittingly mark the progress of legal education 
in America. In 1893 the United States Bureau of Education pub- 
lished a report on Legal Education prepared by the American Bar As- 
sociation's Committee on Legal Education, and manifestly the work 
of that Committee's accomplished chairman, William G. Hammond, 
in which the three methods of teaching law then in vogue — that is, by 
lectures, by text-book, and by selected cases — were described and com- 
mented upon, but without indication of preference. The next report 
of the Bureau of Education dealing with legal education, published 
in 1914, contains these unequivocal statements: 

"To-day the case method forms the principal, if not the exclusive, 
method of teaching in nearly all of the stronger law schools of the 
country. Lectures on special subjects are of course still delivered in 
all law schools, and this doubtless always will be the case. But for 
staple instruction in the important branches of common law the case 
has proved itself as the best available material for use practically ev- 
erywhere. * * * The case method is to-day the principal method 
of instruction in the great majority of the schools of this country." 

But the most striking evidence of the present stage of development 
of legal instruction in American Law Schools is to be found in the 
special report, made by Professor Redlich to the Carnegie Foundation 
for the Advancement of Teaching, on "The Case Method in American 
Law Schools." Professor Redlich. of the Faculty of Law in the Uni- 
versity of Vienna, was brought to this country to make a special study 
of methods of legal instruction in the United States from the stand- 
point of one free from those prejudices necessarily engendered in 
American teachers through their relation to the struggle for supremacy 
so long, and at one time so vehemently, waged among the rival sys- 
tems. From this masterly report, so replete with brilliant, analysis 
and discriminating comment, the following brief extracts are taken. 
Speaking of the text-book method Professor Redlich says : 

"The principles are laid down in the text-book and in the profes- 
sor's lectures, ready made and neatly rounded, the predigested essence 

(V) 



Vi PREFACE 

of many judicial decisions. The pupil has simply to accept them and 
to inscribe them so far as possible in his memory. In this way the 
scientific element of instruction is apparently excluded from the very 
first. Even though the representatives of this instruction certainly do 
regard law as a science — that is to say, as a system of thought, a group- 
ing of concepts to be satisfactorily explained by historical research and 
logical deduction — they are not willing to teach this science, but only 
its results. The inevitable danger which appears to accompany this 
method of teaching is that of developing a mechanical, superficial in- 
struction in abstract maxims, instead of a genuine intellectual probing 
of the subject-matter of the law, fulfilling the requirements of a 
science." 

Turning to the case method Professor Redlich comments as follows : 

"It emphasizes the scientific character of legal thought; it goes now 
a step further, however, and demands that law, just because it is a 
science, must also be taught scientifically. From this point of view it 
very properly rejects the elementary school type of existing legal edu- 
cation as inadequate to develop the specific legal mode of thinking, as 
inadequate to make the basis, the logical foundation, of the separate 
legal principles really intelligible to the students. Consequently, as the 
method was developed, it laid the main emphasis upon precisely that 
aspect of the training which the older text-book school entirely neg- 
lected — the training of the student in intellectual independence, in in- 
dividual thinking, in digging out the principles through penetrating 
analysis of the material found within separate cases ; material which 
contains, all mixed in with one another, both the facts, as life creates 
them, which generate the law, and at the same time rules of the law 
itself, component parts of the general system. In the fact that, as has 
been said before, it has actually accomplished" this purpose, lies the 
great success of the case method. For it really teaches the pupil to 
think in the way that any practical lawyer — whether dealing with writ- 
ten or with unwritten law — ought to and has to think. It prepares the 
student in precisely the way which, in a country of case law, leads to 
full powers of legal understanding and legal acumen ; that is to say, 
by making the law pupil familiar with the law through incessant prac- 
tice in the analysis of law cases, where the concepts, principles, and 
rules of Anglo-American law are recorded, not as dry abstractions, but 
as cardinal realities in the inexhaustibly rich, ceaselessly fluctuating, 
social and economic life of man. Thus in the modern American law 
school professional practice is preceded by a genuine course of study, 
the methods of which are perfectly adapted to the nature of the com- 
mon law." 

The general purpose and scope of this series were clearly stated in 
the original announcement: 

"The General Editor takes pleasure in announcing a series of schol- 
arly casebooks, prepared with special reference to the needs and limi- 



PREFACE Vll 

tations of the classroom, on the fundamental subjects of legal educa- 
tion, which, through a judicious rearrangement of emphasis, shall pro- 
vide adequate training combined with a thorough knowledge of the 
general principles of the subject. The collection will develop the law 
historically and scientifically; English cases will give the origin and 
development of the law in England; American cases will trace its ex- 
pansion and modification in America ; notes and annotations will sug- 
gest phases omitted in the printed case. Cumulative references will be 
avoided, for the footnote may not hope to rival the digest. The law 
will thus be presented as an organic growth, and the necessary con- 
nection between the past and the present will be obvious. 

''The importance and difficulty of the subject as well as the time that 
can properly be devoted to it will be carefully considered so that each 
book may be completed within the time allotted to the particular sub- 
ject. * * * If it be granted that all, or nearly all, the studies re- 
quired for admission to the bar should be studied in course by every 
student — and the soundness oi this contention can hardly be seriously 
doubted — it follows necessarily that the preparation and publication of 
collections of cases exactly adapted to the purpose woul,d be a genuine 
and by no means unimportant service to the cause of legal education. 
And this result can best be obtained by the preparation of a systematic 
series of casebooks constructed upon a uniform plan under the super- 
vision of an editor in chief. * * * 

"The preparation of the casebooks has been intrusted to experienced 
and well-known teachers of the various subjects included, so that the 
experience of the classroom and the needs of the students will furnish 
a sound basis of selection." 

Since this announcement of the Series was first made there have 
been published books on the following subjects: 

Administrative Lazv. By Ernst Freund, Professor of Law in the 

University of Chicago. 
Agency. By Edwin C. Goddard, Professor of Law in the University 

of Michigan. 
Bills and Notes. Second Edition. By Howard L. Smiih, Professor of 

Law in the University of Wisconsin, and Underbill Moore, Pro- 
fessor of Law in Columbia University. 
Carriers. By Frederick Green, Professor of Law in the University of 

Illinois. 
Conflict of Lazvs. By Ernest G. Lorenzen, Professor of Law in 

Yale University. 
Constitutional Law. By James Parker Hall, Dean of the Faculty of 

Law in the University of Chicago. 
Contracts. By Arthur L- Corbin, Professor of Law in Yale University. 



VIU PREFACE 

Corporations. By Harry S. Richards, Dean of the Faculty of Law in 
the University of Wisconsin. 

Criminal Law. By William E. Mikell, Dean of the Faculty of Law in 
the University of Pennsylvania. 

Criminal Procedure. By William E. Mikell, Dean of the Faculty of 
Law in the University of Pennsylvania. 

Damages. By Floyd R. Mechem, Professor of Law in the University 
of Chicago, and Barry Gilbert, of the Chicago Bar. 

Equity. By George H. Boke, formerly Professor of Law in the Uni- 
versity of California. 

Equity. By Walter Wheeler Cook, Professor of Law in Yale Uni- 
versity. Volume L Volumes 2 and 3 in preparation. 

Evidence. By Edward W. Hinton, Professor of Law in the Universi- 
ty of Chicago. 

Insurance. By William R. Vance, Professor of Law in Yale Uni- 
versity. 

International Law. By James Brown Scott, Lecturer on International 
Law and the Foreign Relations of the United States in the School 
of Foreign Service, Georgetown University. 

Legal Ethics, Cases and Other Authorities on. By George P. Costigan, 
Jr., Professor of Law in the University of California. 

Partnership. By Eugene A. Gilmore, Professor of Law in the Uni- 
versity of Wisconsin. 

Persons (including Marriage and Divorce). By Albert M. Kales, late of 
the Chicago Bar, and Chester G. Vernier, Professor of Law in 
Stanford University. 

Pleading (Common Law). By Clarke B. Whittier, Professor of Law 
in Stanford University, and Edmund M. Morgan, Professor, of 
Law in Yale University. 

Property (Future Interests). By Albert M. Kales, late of the Chicago 
Bar. 

Property (Personal). By Harry A. Bigelow, Professor of Law in the 
University of Chicago. 

Property (Rights in Land). By Harry A. Bigelow, Professor of 
Law in the University of Chicago. 

Property (Titles to Real Property). By Ralph W. Aigler, Professor 
of Law in the University of Michigan, 

Property (Wills, Descent, and Administration) . By George P. Costi- 
gan, Jr., Professor of Law in the University of California. 

Quasi Contracts. By Edward S. Thurston, Professor of Law in Yale 
University. 

Sales. By Frederic C. Woodward, Professor of Law in the University 
of Chicago. 



PREFACB IX 

Suretyship. By Crawford D. Hening, formerly Professor of Law 
in the University of Pennsylvania. 

Torts. By Charles M. Hepburn, Dean of the Faculty of Law in the 
University of Indiana. 

Trade Regulation. By Herman OHphant, Professor of Law in Colum- 
bia University. 

Trjtsts. By Thaddeus D, Kenneson, Professor of Law in the Univer- 
sity of New York. 

It is earnestly hoped and believed that the books thus far published 
in this series, with the sincere purpose of furthering scientific training 
in the law, have not been without their influence in bringing about a 
fuller understanding and a wider use of the case method. 

William R. Vance, 

General Editor. 

t 



T> 



•i^J JiS^ 



INTRODUCTION 

TO 

THE LAW OF REAL PROPERTY 



BY HARRY A. BIGELOW 

PROFESSOR OF LAW IN THE UNIVERSITY OF CHICAGO 



AMERICAN CASEBOOK SERIES 

WILLIAM R.VANCE 

GENERAL EDITOR 



ST. PAUL 

WEST PUBLISHING COMPANY 
1919 



COPTBIGHT, 1919 
BT 

WEST PUBLISHING COMPANY 
(Big. Int.) 



TO 

THE SILENT PARTNER 

(ili) 



AUTHOR'S PREFATORY NOTE 



This treatise has been written with the thought constantly in mind 
that it is to serve as the medium by which students, either wholly ig- 
norant of law or at best with a slight knowledge of it, are to begin 
the study of one of its most difficult branches. Such students re- 
quire above all else simplicity of statement and an easily understand- 
able outline, that will furnish a background against which the instruc- 
tor can fill in details and refinements as tlie capacity of the class per- 
mits. Consequently the doctrines of the older law have been stated 
simply, and as far as possible in nontechnical language. The extent 
to which they are to be expanded is a matter that the instructor will 
settle for himself. 

The treatise is only an introduction to the law of real property in 
another sense, viz., it stops substantially with the 18th century law. 
No attempt has been made to do more than hint at the modern develop- 
ments of the law of property. To go further would be to encroach 
upon the function of the various volumes that make up the series to 
which this is a preface. 

Harry A. Bigki,ow. 
The Univebsity of Chicago Law School, 
July 17, 1919. 

(iv) 



TABLE OF CONTENTS 



CHAPTER I 



The FteuDAL System 

Section Page 

1. Introduction 1 

2. Military Tenure. ^ * 4 

3. Socage Tenure Qla,'\\v;^^^',<^). 8 

4. Frankalmoyn Tenure.' . . . . KiJ<<r^^,-ti^^^. 10 



5. Copyhold Tenure u 10 

6. Statutory Changes in the Feudal System 11 

7. Tenure In the United States 17 

CHAPTER II 

Estates 

Introduction 19 

Fees Simple ■ 19 

Fees Conditional and Fees Tail 22 

Determinable Fees 25 

Estates for Life 26 

Estates Less than Freehold , 30 

Seisin and Possession 32 

Transfer on Seisin and Possession 34 



CHAPTER III 

NONPOSSESSOKY INTERESTS IN LaND 

1. Introduction 36 

2. Reversions and Remainders 38 

3. Conditional Limitations and Rights of Entry 43 

4. Incorporeal Hereditaments 44 

5. Conveyance of Incorporeal Interest 44 

6. Other Species of Conveyances 46 

CHAPTER IV 
Joint Owneeship 49 

CHAPTER y 

DiSSEMSIN AND THE REMEDIES ThEREFOB 58 

CHAPTER VI 
Uses and Tbusts 66 

BlO.lNT. (v) 



TABLE OF STATUTES 



Page 

Magna Carta (1217), sec. 39 12 

sec. 43 65 

13 Edw. I, c. 1, De Bonis (1285) 22 

18 Edw. I, c. 1, 3, Quia Emptores (1290) 12 

15 Rich. II, c. 5, Mortmain Statute (1391) 66 

1 Rich. Ill, c. 1, Statute of Uses (1483) 71 

27 Hen. VIII, c. 10, Statute of Uses (1536) 72 

27 Hen. VIII, c. 16, Statute of Enrollments (1536) 76 

12 Car. II, c. 24, Statute Abolishing the Court of Wards and Liv- 
eries (1660) 14 

29 Car. II, c. 3, Statute of Frauds (1676) sees. 1, 2 35 

sec. 7 76 

4 Anne, c. 16, sec. 9, Statute of Attornment' (1705) 45 

8 & 9 Vict. Statute Regulating Conveyances (1845) 35 

BiG.lNT. (Vi) 



TABLE OF CASES 



[titles of cases cited in footnotes are indicated by italics, where small 
capitals are used, the case is referred to in the text] 



Page 

Abraham v. Tioigg 79 

BrougJiton v. Langley 79 

Callard v. Callard 77 

Callard v. Callard 78 

Cooper v. Franklin 82 

Doe d. Lloyd v. Passhighum 82 

Egcrton, Case of 79 

Lloyd V. Passingham 82 



Page 
LUTWITCn V. MiTTON.... 78 

Nevil V. Saunders : . 82 

Satnme, Case of 82 

SlIARINGTON V. StROTTON 77 

Shelley, Case of 21 

Shelley, Case of 21 

Shortridge y. Lampuigh 79 

Taltarum, Case of 24 

Tyirel, Case of 82 

Y. B 21. 24 



Big.Int. 



(vii)j 



2 THE FEUDAL SYSTEM (Ch. ] 

ious to the new ruling classes, were probably for the most part not at 
all affected so far as their physical occupation of the soil was con- 
cerned. At the same time it is true that as a result of the Conquest, 
with the killing off of a considerable part of the higher English land- 
owning classes, large blocks of land came into the immediate posses- 
sion of the king. Furthermore, he succeeded by right of conquest to 
all the lands owned by the Saxon king, and other large amounts came 
into his possession by forfeiture, following the unsuccessful rebellions 
of the English nobility. These lands aggregated an amount which it 
was clearly impossible for the king to keep in his immediate personal 
possession. It was also desirable that such an organization should be 
put on foot as would enable him to retain the conquest that he had 
made. As a consequence of these facts the king parceled out large 
tracts of land among his immediate personal followers. These men, 
in turn, parceled out the large tracts so allotted to them, in smaller 
tracts, 'among their immediate personal followers ; and this process 
was repeated in a descending scale. Naturally these holdings would 
be allotted upon terms, the most needful provisions in which would be 
that the one to whom the allotment was made would assist the one 
from whom the allotment was received in keeping control of his other 
j2roperty, or render him some other service therefor. The allotter in 
turn would promise to help the allottee in retaining his land so long as 
he kept faith, and to give him other lands if he were ousted from 
those given. These reciprocal relations of help and service culmi- 
nated, as has been already said, in the king. The allotments thus made 
in the manner above outlined were technically known as fiefs^ or 
_feuds. 

Another element that entered into the formation of the English 
feudal system was the fact that in a state of society where life and 
property were none too secure the small landholder would find it 
almost imperative to put himself under the protection of some more 
powerful individual. Consequently, where there was no forfeiture of 
land, it is probable that in many cases the small landowner would "com- 
mend" himself to some neighboring lord. This involved the acknowl- 
edgment of the fact that the person so commending himself became 
"the man" of the lord and that he held his lands under him. 

The effect of these two forces- was that by the time of Henry II 
(1154-1189) the system of landholding in England was fairly definitely 
established. It may, roughly, be compared to a pyramid : At the sum- 
mit of the pyramid was the king, who was, in legal theory, the owner of 
all land in England. Immediately under him were the great lords of 
the kingdom, holding the large tracts of land in the manner already 
mentioned. These tenants immediately under the king later received 
the name of "tenants in capite." Under the tenants in capite were 
various grades of intermediate or mesne tenants, and at the bottom of 
the pyramid may be said to be the tenants who were in actual occu- 



Sec. 1) INTRODUCTION 3 

pation of the land, either personally or by their servants. Just what 
the relation was between these tenants in occupation and the actual till- 
ers of the soil will be considered more in detail subsequently. Thus it 
may be said that, except for the highest and lowest grades, each per- 
son occupied a double relation. With respect to the person below him 
he \\as a lord; \vit;h_resjpect to the person under whom he was holding 
he was a tenan t, owing fealty and faith and feudal services, and enti- 
tled to receive protection from his lord. 

The creation of this relation of lord and tenant was accompanied 
by certain formalities which seem to have been regarded as of great 
significance, viz., the doing of homage and the swearing of fealty. 
In the former ceremony the tenant knelt unarmed, ungirt, and bare- 
headed before his lord, put his hands in the hands of his lord, and ac- 
knowledged that he became the lord's man, and that he held his land 
of him and would faithfully perform his obligations as such tenant. 
Swearing fealty was a less ceremonious performance. The tenant stood 
before his lord and solemnly swore that he would bear faith and per- 
form his obligations as a loyal tenant. Turning from the formalities 
of the creation of lord and tenant to the nature of the rights created 
diereby in the land which the tenant received from his lord, it is to be 
n otice d, and this is one of the striking peculiarities of the feudal sys- 
tem_ of landholdingj that each tenant and lord, although there might 
be with respect to any given piece of land four or five individuals in an 
ascending scale from the tenant to the king, was regarded as having a 
proper tA- interest in the land. The one in possession was said to be 
^ised in his demesne. The others under whom he held were said to 
be ^sed. in service. This relation between the lord and the tenant 
with respect to the land was technically known as tenure. There were 
various species of tenure, and these it is now necessary to examine. 
The first distinction that is to be noticed in this regard is the distinc- 
tion^ between free tenure and villain or servile tenure. The free *ten • 
ures were of three sorts: Military; socage; frankalmoyn.^ 

1 On the iutroduction of the feudal system into England, see 2 Blackstoue, 
Commentaries, ch. IV; 1 Pollock & Maitland, History of the English Law 
(2d Ed.) pp. 66-73; 2 Id. pp. 232-240; Digby, Hist, of the Law. of Real Prop. 
(5th Ed.) pp. 29-38. 



THE FEUDAL SYSTEM ' (Ch. 1 



SECTION 2.— MILITARY TENURE 



Military tenure was considered to be at once the most onerous 
and the most honorable form of tenure. The most common form of 
military tenure was tenure, by knight service. It could exist only if 
the tenant held at least a minimum amount of land, called a knight's 
fee, and the holding involved the obligation upon the part of the 
tenant to serve the king in battle for a certain number of days per 
year, dependent upon the extent of his holding. The funda mental 
characteristic of knight service, and indeed of all military tenures, 
was the uncertainty of the obligation. In practice, this obligation of 
personal service by the tenant in knight service was, after a com- 
paratively short time, found to be unsatisfactory from a military point 
of view, and in the time of Henry II the obligation was commuted 
into a money payment, called scutage, proportioned to the amount of 
land held. The tenure is sometimes referred' to as scutage tenure for 
this reason. 

In addition to this fundamental obligation of military service, there 
were a number of other obligations, or incidents, as they were tech- 
nically called, which belonged to military tenure. These various in- 
cidents are well described by Blackstone:* 

"This tenure of knight service * ♦ ♦ was perfected by homage 
and fealty. It also drew after it these seven fruits and consequences, 
as inseparably incident to the tenure in chivalry, viz. aids, relief, 
primer seisin, wardship, marriage, fines for alienation, and escheat: 
All which I shall endeavour to explain, and to shew to be of feodal 
original. 

"1. Aids were originally mere benevolences granted by the tenant 
to his lord, in times of difficulty and distress ; but in process of time 
they grew to be considered as a matter of right, and not of discretion. 
These aids were principally three: f'^i'rs t, to ran som the lord's per- 
son, if taken prisoner; a necessar}^ consequence of the feodal attach- 
ment and fidelity : insomuch that the neglect of doing it, whenever it 
was in the vassal's power, was by the strict rigour of the feodal law 
an absolute forfeiture of his estate. Secondly, to make the lord's 
ejdest son a knight ; a matter that was formerly attended with great 
ceremony, pomp, and expense. This aid could not be demanded un- 
til the heir was fifteen years old, or capable of bearing arms : the in- 
tention of it being to breed up the eldest son and heir apparent of 
the seignory, to deeds of arms and chivalry, for the better defence 
of the nation. Thirdly, to marry the lord's eldest daughter, by giv- 
ing her a suitable portion. * ♦ ♦ 

a II Bl. op. cit. ch. V. 



Sec. 2) MILITARY TKNDRE 5 

"2. Relief, relevium, was before mentioned as incident to every 
feodal tenure, by way of fin« or composition with the lord for taking 
up the estate which was lapsed or fallen in by the death of the last 
tenant. _ But though reliefs had their original while feuds were only 
life estates, yet they continued after feuds became hereditary; and 
were therefore looked upon, very justly, as one of the greatest griev- 
ances of tenure: especially when, at the first, they were merely ar- 
bitrary and at the will of the lord; so that, if he pleased to demand 
an exorbitant relief it_was in effect to disinherit the heir. * * * 
But afterwards * * * ^-j-^g composition was universally accepted 
of 100s. for every knight's fee; as we find it ever after established. 
But it must be remembered, that this relief was only then payable, 
jf^the heir at the death of his ancestor had attained his full age of 
one-and-twenty years. 

"3. Primer seisin was a feodal burthen, only incident to the king's 
tenants in capite, and not to those who held of inferior or mesne lords. 
It was a right which the king had, when any of his tenants in capite 
died seised of a knight's fee, to receive of the heir (provided he were 
of full age) one whole year's profits of the lands, if they were in 
immediate possession : and half a year's profits, if the lands were in 
reversion expectant on an estate for life. This seems to be little 
more than an^ additional relief, but grounded upon this feodal rea- 
son : That by the ancient law of feuds, immediately upon the death 
of a vassal, the superior was entitled to enter and take seisin or pos- 
session of the land, by way of protection against intruders, till the 
heir appeared to claim it, and receive investiture: during which in- 
terval the lord was entitled to take the profits; and unless the heir 
claimed within a year and a day, it was by the strict law a forfeiture. 
This practice however seems not to have long obtained in England, 
if ever, with regard to tenure under inferior lords ; but as to the 
king's tenures in capite, the prima seisina was expressly declared, un- 
der Henry III and Edward II, to belong to the king by prerogative, 
in contradistinction to other lords. The king was entitled to enter and 
receive the whole profits of the land, till livery was sued; which suit 
being commonly made within a year and day next after the death of 
the tenant, in pursuance of the strict feodal rule, therefore the king 
used to take as an average the first fruits, that is to say, one year's 
profits of the land. ♦ * * 

"4. These payments were only due if the heir was of full age; but 
if he was under the age of twenty-one, being a male, or fourteen, be- 
ing a female, the lord was entitled to the wardship of the heir, and 
was called the guardian in chivalry. This wardship consisted in hav- 
ing the custody of the body and lands of such heir, without any ac- 
count of the profits, till the age of twenty-one in males, and sixteen 
in females. For the law supposed the heir male unable to perform 
knight service till twenty-one; but as for the female, she was sup- 
posed capable at fourteen to marry, and then her husband might per- 



6 THE FEUDAL SYSTEM (Ch. 1 

form the service. The lord therefore had no. wardship, if at the 
death of the ancestor the heir male wa^ of the full age of twenty- 
one, or the heir female of fourteen ; yet, if she was then under four- 
teen, and the lord once had her in ward, he might keep her so till six- 
teen, by virtue of the statute of Westm. I, Edw. I, c. 22, the two ad- 
ditional being given by the legislature for no other reason but merely 
to benefit the lord. 

"This wardship, so far as it related to land, though it was not nor 
could be part of the law of feuds, so long as they were arbitrary, 
temporary, or for life only; yet when they became hereditary, and 
did consequently often descend upon infants, who by reason of their 
age could neither perform nor stipulate for the services of the feud, 
does not seem upon feodal principles to have been unreasonable. For 
the wardship of the land, or custody of the feud, was retained by the 
lord, that he might out of the profits thereof provide a fit person to 
supply the infant's services, till he should be of age to perform them 
himself. And if we consider the feud in its original import, as a 
stipend, fee, or reward for actual service, it could not be thought 
hard that the lord should withhold the stipend, so long as the service 
was suspended. * * * 

"When the male heir arrived to the age of twenty-one, or the heir 
female to that of sixteen, they might sue out their livery or ousterle- 
main ; that is the delivery of their lands out of their guardian's hands. 
For this they were obliged to pay a fine, namely, one half a year's 
profit of the land ; though this seems expressly contrary to Magna 
Carta. However, in consideration of their lands having been so long 
in ward, they were excused all reliefs, and the king's tenants also aU 
primer seisins. * * * 

"5. But, before they came of age, there was still another piece of 
authority, which the guardian was at liberty to exercise over his in- 
fant wards; I mean the right of marriage (maritagium, as contra- 
distinguished from matrimony), which in its feodal sense signifies the 
power, which the lord or guardian in chivalry had of disposing of his 
infant ward in matrimony. For, while the infant was in ward, the 
"guardian had the power of tendering him or her a suitable match, 
without disparagement or inequality ; which if the infants refused, 
they forfeited the value of the marriage, valorem maritagii, to their 
guardian; that is, so much as a jury would assess, or any one would 
bona fide give to the guardian for such an alliance; and, if the in- 
fants married themselves without the guardian's consent, they for- 
feited double the value, duplicem valorem maritagii. This seems to 
have been one of the greatest hardships of our ancient tenures. There 
were indeed substantial reasons why the lord should have the re- 
straint and control of the ward's marriage, especially of his female 
ward ; because of their tender years, and the danger of such female 
ward's intermarrying with the lord's enemy; but no tolerable pre- 



Sec. 2) MILITARY TENURE 7 

tence could be assigned why tlie lord should have the sale or value of 
the marriage. * * * 

"6. Another attendant or consequence of tenure by knight service 
was that of fines due to the lord for every alienation, whenever the 
tenant had occasion to make over his land to another. This de- 
pended on the nature of the f eodal connexion ; it not being rea- 
sonable or allowed, as we have before seen, that a feudatory should 
transfer his lord's gift to another, and substitute a new tenant to do 
the service in his own stead, without the consent of the lord : and, 
as the feodal obligation was considered as reciprocal, the lord also 
could not alienate his seignory without the consent of his tenant, 
which consent of his was called an attornment. This restraint upon 

the lords soon wore away; that upon the tenants continued longer. 
* * * 

"7. The last consequence of tenure in chivalry was escheat ; which 
is the determination of the tenure, or dissolution of the mutual bond 
between the lord and tenant from the extinction of the blood of the 
latter by either natural or civil means: if he died without heirs of his 
blood, or if his blood was corrupted and stained by commission of 
treason or felony ; whereby every inheritable quality was entirely 
blotted out and abolished. In such cases the lands escheated, or fell 
back to the lord of the fee; that is, the tenure was determined by 
breach of the original condition expressed or implied in the feodal 
donation. In the one case there were no heirs subsisting of the blood 
of the first feudatory or purchaser, to which heirs alone the grant of 
the feud extended ; in the other, the tenant, by perpetrating an 
atrocious crime, shewed that he was no longer to be trusted as a 
vassal, having forgotten his duty as a subject; and therefore for- 
feited his feud, which he held under the implied condition that he 
should not be a traitor or a felon. The consequence of which in both 
cases was, that the gift, being determined, resulted back to the lord 
who gave it." 

Another species of military tenure was tenure by grand serjeanty. 
The tenant so holding was bound to attend personally upon the king 
for some service, such as carrying his banner or bearing his sword.^ 

3 On railitarv tenures ?ee 2 Poll. & Mait. op. cit. pp. 252-290. 307-329 ; 
Williams, Real Prop. (20th Ed.) pp. 45-50 ; Coke's Littleton, 74b-85a. 



THE FEUDAL SYSTEM (Ch. 1 



SECTION 3.— SOCAGE /TENURE 

1 ^ 

Just as the tenure already discussed was a military tenure, based 
on the rendering of military services and existent chiefly among the 
nobility, or what would in later years have been called the landed 
gentry, so it may be said, broadly speaking, that socage tenure was an 
agricultural tenure, and was, for the most part confined to the lower 
grades of society. The term "socage tenure" has been variously de- 
rived from the old French "soc," meaning a plow, or from the Anglo- 
Saxon "socn," meaning jurisdiction. 

For a better understanding of the scope and nature of the socage 
tenure it will be necessary to consider briefly the place occupied in 
the feudal law by the institution of the manor. The manorial organi- 
zation in substance, if not under that name, was undoubtedly very 
much older than the Norman Conquest. In a simple and largely agri- 
cultural organization of society, where means of communication were 
few and imperfect, and where a large part of the population lived and 
died in the same place in which it was born, the natural unit, outside 
of the family, would tend to be the village or township center, ordi- 
narily controlled and protected by some lord. It was these units to 
which the name "manor" was subsequently given, and the legal as- 
pects of which were worked out by the Anglo-Norman lawyers. 

A complete manor in the technical sense of the word may be said 
to have two aspects : A territorial, and a jurisdictional. On the ter- 
ritorial side it may be said that the lands embraced in a given manor 
were of various sorts. There was, first, the demesne, upon which 
dwelt the lord of the manor or his bailiff. The demesne land also 
embraced a certain portion of arable land upon which were raised 
the crops for the lord's own use and profit. Next, there were large 
tracts of land upon which dwelt the tenants of the manor. These 
^t^nants were freemen. They held their tracts under the lord of the 
manor and owed him services and fealty therefor; but only in the 
same sense that their lord in turn held from his overlord in the 
way that has already been described. In some cases these tenants 
held by military tenure. In others the services or returns that the 
freeholders had to render to their lord for the lands so held under 
him consisted of agricultural services of a fixed character, on the 
demesne land; in other cases of a payment in kind; and in others, 
of a money payment, the former not infrequently being commuted 
into the latter. These are the origins and fundamental characteristics 
of tenancy in socage, and the distinguishing feature of this tenancy, 
as contrasted with military tenancy,._is the certainty of the services 
which had to be rendered as a return for the land held. 

A third portion of the manor consisted of the so-called common 



Sec. 3) SOCAGE TENURE 9 

land. In these the tenants of the manor had certain rights of pastur- 
ing their cattle, of cutting firewood, and the like. It is in this aspect 
of manorial life that we find the beginnings of the modem law of 
easements and profits. 

In addition to the freehold tenants above described, there were 
also, upon many manors, a class of unfree, or servile, tenants. The 
characteristics of their holding will be referred to subsequently in 
another connection. ' 

Turning to the jurisdictional aspect of the manorial organization, 
it should be noticed that there were two manorial courts. There 
was, first, the^ court baron. This was presided over by the lord of the 
manor and attended by the freeholders of the manor, whose duty it 
was to act as jurors and judges in the cases brought before them. 
The activities of the court were concerned mainly with the settle- 
rnent_of disputes relating to the land of the freeholders comprised in 
th&. manor. In the manors on which were found the serv ile ten- 
ants, to which reference has already been made, there existed a second 
and lower branch of the court baron. This is ordinarily called the 
custo mary court baron, to distinguish it from the freeholders' court. 
The functions of the customary court were t£ settle the land rights 
of the servile tenants and other similar questions. In addition to what 
may be called these civil manorial courts, there was also the court leet, 
which had a jurisdiction over crimes committed within the manor.'* 

After this digression into the subject of the manor we may return 
to a consideration of socage tenure. As regards the feudal incidents 
attendant upon socage tenure, only this need be said. The tenant 
owed fealty to the lord; homage was rarely an incident of socage 
t^iure. Aids and relief were incidents, but their amount was fixed 
at one year's rent of the land. Tenants in capite in socage were also 
subject to primer seisin; and the incident of escheat also obtained in 
this tenure. The most important difference in this regard between 
military and socage tenure, and the one that made socage tenure dis- 
tinctly more advantageous to the tenant, was that the incident of 
niarriage did not exist at all. The incident of wardship existed, but 
the guardian was accountable to the ward for all the profits derived 
from the land. 

While socage tenure was largely an agricultural tenure, there were 
nevertheless other socage tenures, so classified because of the certain- 
ty of the services to be rendered. These should be briefly noticed : 

In many of the towns in England the tenants held from their lord 
by a species of socage tenure called "burgage tenure," or "borough 
English." The characteristic feature of borough English was that 
the lands descended to the youngest son, instead of either to the oldest 
or to all the sons equally. Another species of socage tenure was the 
so-called "gavelkind tenure." The characteristics of this tenure are 

' ■* On the manor see Dlgby, op. cit. pp. 43-45, 49-56 ; 1 Poll. & Mait. op. cit. 
pp. 594-634. 



10 THE FEUDAL SYSTEM (Ch. 1 

four: The lands (1) descended to all the sons equally; (2) were 
devisable by will ; (3) did not escheat in case of attainder for felony ; 
(4) could be aliened by the tenant when he reached fifteen. 

Another form of socage tenure was "petty serjeanty." The holder 
under this form of tenure had the obligation to render annually to the 
king some article, such as a horse or a spear, in return for the land 
held by him.* 



SECTION 4.— FRANKALMOYN TENURE 



6^//--- - ^ 



This tenure was a religious tenure. It antedates the Conquest, and 
was the tenure upon which many of the monasteries and religious 
houses in England held their lands. There were no feudal incidents 
attached thereto. As a result of the statute of Quia Emptores, re- 
ferred to later, no tenancy in frankalmoyn could be created after the 
date of that statute, except by the king.* 



SECTION 5.— COPYHOLD TENURE 



In the discussion of the manor it was mentioned that, in addi- 
tion to the free tenants upon the manors, there was another class of 
tenants. This other class of tenants held by a servile tenure. The 
essence of the tenure seems to have been that the extent of their 
obligation was originally undefined and largely dependent upon the 
will of the lord. Another characteristic was that originally their 
lands were held at the will of the lord and they could be at any time 
turned out of them. In the course of time, however, the extent 
of their obligation became more or less exactly defined by custom, and 
their rights to retain possession of the land so long as they fulfilled 
their obligations also became recognized. The only evidence, how- 
ever, of the nature of their obligations or the extent of their interest 
in their land, was in the copy of the rolls of the manor. Hence the 
origin of the term "copyhold," which is applied to this species of ten- 
ure. The only method whereby the copyhold tenant could transfer 
his land was to surrender his land to his lord, with the request that 
his purchaser be inducted into the land. A certain amount of land is 

5 On socage tenure see 2 Bl. op. cit. pp. 79-92 ; Digby, op. cit. pp. 47-49 ; 
2 Poll. & Mait. 291-307; Williams, op. cit. pp. 49-53; Coke, Littleton, S5b-93b. 

8 On frankalmoyn see Co. Lit., 93b-100b ; 2 Poll. & Mait. op. cit. pp. 240- 
251; 2 Bl. op. cit. pp. 101, 102. 



Sec. 6) STATUTORY CHANGES IN THE FEUDAL SYSTEM 11 

Still held in England by copyhold tenure, although at the present time 
all servile incidents or uncertainties of obligation in respect tliereto 
have long since passed awa}'.^ 



SECTION 6.— STATUTORY CHANGES IN THE FEUDAL 

SYSTEM 



The earlier history of the growth of the law with respect to the pow- 
er of the tenant to alien his lands is a matter with respect to which con- 
siderable doubt exists. It is by no means certain whether for the 
first two hundred years after the Norman Conquest the growth was 
toward a restriction of the power of alienation, or toward a devel- 
opment of freedom in the power of alienation. It seems reasonably 
certain that by the time of Henry II the power of the tenant to alien 
his lands, subject to the payment of the ordinary fines, was definitely 
^established. 

Land may be alienated in one of two ways : For example, if A. is 
the lord and B. is the tenant, B. may alienate his complete interest 
to C. This may be called alienation by substitution. Since the serv- 
ices were regarded as being due from the land, an alienation of this 
sort would not deprive A., as overlord, of any of his feudal dues. 
At the same time, however, he might be prejudiced in the personality 
of the tenant by the change from one favorably disposed to him to 
one not so favorably disposed. More than this, if B. alienated his 
land to several different persons, instead of to one person, there would 
be more difficulty on the part of A. in collecting his feudal dues. 

In comparison with the case just above put, B., the feudal tenant 
of A., instead of conveying to C. all his possible interests in the land, 
and thereby substituting C. in his place, might convey the land to C. 
in perpetuity, but at the same time reserve from C. certain obligations 
to himself; B. thereby interposing himself as a mesne lord between 
A. and C, so that C. would hold his lands and be in a tenure relation, 
not to A., but to B. This is known as ahenation by subinfeudation. It 
would not affect the personal relations between A. and B., nor would 
it cut oft' the feudal obligations owed to A. by the land. But it never- 
theless might seriously prejudice A. in the most valuable of his feudal 
rights. Suppose, for example, that B. should convey the land to C, 
subject only to the obligation to pay one penny yearly. If, now, B. 
should die, leaving only a minor heir, A. would have his right of 
wardship. But, instead of being entitled under it to take possession 
of the land and get what he could from it, all he would be entitled 

1 On copvhold see 1 Poll. & Mait. op. cit. pp. 35G-oS3 ; Digby, op. cit. pp. 
152, 153, 2S8-295 ; 2 Bl. op. cit. pp. 90-101. 



12 THE FEUDAL SYSTEM (Ch. 1 

to would be the one penny per annum. So, again, if B. died without 
heirs, so that his interest would escheat to A., the only subject-matter 
of the escheat would be the reservation of one penny per annum. 

The first legislation that seems to have been passed directed against 
this state of affairs is found in Magna Carta (1217), which provides 
(section xxxix) : "No freeman from henceforth shall give or sell 
any more of his land, but so that of the residue of the lands the lord 
of the fee may have the services due to him which belong to the fee." 

Apparently this provision was not regarded as an adequate settle- 
ment of the matter. The subject was definitely settled by legislation 
in the reign of Edward I. -In the year 1290 was passed the statute 
of Quia Emptores. It read as follows: 
/ "Forasmuch as purchasers of lands and tenements of the fees of 
great men and other lords have many times heretofore entered into 
their fees, to the prejudice of the lords, to whom the freeholders of 
such great men have sold their lands and tenements to be holden in 
fee of their feoffors and not of the chief lords of the fees, whereby 
the same chief lords have many times lost their escheates, marriages, 
and wardships of lands and tenements belonging to their fees, which 
thing seems very hard and extreme unto those lords and other great 
men, and moreover in this case manifest disheritance, our lord the 
king in his parliament at Westminster after Easter the eighteenth year 
of his reign, that is to wit in the quinzine of Saint John Baptist, at 
the instance of the great men of the realm granted, provided, and or- 
dained, that from henceforth it should be lawful to every freeman 
to sell at his own pleasure' his lands and tenements or part of them, 
so that the feoffee shall hold the same lands or tenements of the 
chief lord of the same fee, by such service and customs as his feoffor 
held before. ] 

"c. 2. And if he sell any part of such lands or tenements to any, 
the feoft'ee shall immediately hold it of the chief lord, and shall be 
forthwith charged with the services for so much as pertaineth or ought 
to pertain to the said chief lord, for the same parcel, according to 
the quantity of the land or tenement so sold ; and so in this case the 
same part of the service shall remain to the lord, to be taken by the 
hands of the feoffee, for the which he ought to be attendant and 
answerable to the same chief lord according to the quantity of the 
land or tenement sold for the parcel of the service so due. 

"c. 3. And it is to be understood that'by the said sales or pur- 
chases of lands or tenements, or any parcel of them, such lands or 
tenements shall in no wise come into mortmain, either in part or in 
whole, neither by policy ne craft, contrary to the form of the stat- 
ute made thereupon of late. And it is to wit that this statute ex- 
tendeth but only to lands holden in fee simple, and that it extendeth 
to the time coming. And it shall begin to take effect at the Feast of 
Saint Andrew the Apostle next coming." 



Sec. 6) 



STATUTORY CHANGES IN THE FEUDAL SYSTEM 



13 



The effects of this statute may be briefly summarized as follows : 

1. It allowed complete alienation bj^ way of substitution upon the 
payment of a fine, even though the lands were thereby divided. 

2. It abolished subinfeudation, making the feoffee hold of the feof- 
for's overlord upon the same terms upon which the feoffor had held 
of the feoffor's overlord. 

3. It. did not .affect the rights of the king against the tenants in 
capite, because of the general principle that the rights of the king 
are not affected by a statute unless he is specially named therein. 

4. It applied only to conveyances in fee simple. 

So long as English society continued on what might fairly be called 
a military basis, so long as protection to property and life through 
legal process was not very direct and adequate, and the need for pro- 
tection and assistance between the lord and the tenant was immediate 
and close, the feudal organization of society, with its onerous inci- 
dents, might nevertheless be regarded as a not unfair working ar- 
rangement. In the course of time, however, the feudal element in 
English economic life ceased to have any real value, the agricultural 
element became more pronounced, and then gradually a commercial 
aspect developed. The king's courts asserted their jurisdiction over 
all the country, and life and property became secure. With this 
growth of society the justification for the feudal incidents disappear- 
ed. They became a mer^ source of profit upon the part of the lord, 
with no corresponding benefit to the tenant. An element that operat- 
ed to make this burden all the more heavy was the fact that, with 
the breaking down of the feudal system, the relation of lord and 
tenant was no longer kept sharply in mind, and the doctrine grad- 
ually arose that every tenant was presumed to be a tenant in capite, 
unless it appeared that he was a mesne tenant. It has already been 
pointed out that the feudal burdens of the tenants in capite were 
distinctly more onerous than those of the mesne tenants. The effect 
of Quia Emptores was also to work the holding of any given tenant 
toward the top of the feudal pyramid. When feudalism was definite- 
ly terminated as a real factor in English economic organization by 
the War of the Roses, and the establishment of the Tudors, the ob- 
jection to these burdensome incidents became constantly stronger. 
_Blackstone thus describes the situation.* 

"For the present I have only to observe, that by the degenerating 
of knight service, or personal military duty, in escuage, or pecuniary 
assessments, all the advantages (either promised or real) of the feudal 
constitution were destroyed, and nothing but the hardships remained. 
Instead of forming a national militia composed of barons, knights, and 
gentlemen, bound by their interest, their honor, and their oaths, to 
defend their king and country, the whole of this system of tenures 
now tended to nothing else but a wretched means of raising money to 



« 2 Bl. op. cit. p. 75. 



14 THE FEUDAL SYSTEM (Ch. 1 

pay an army of occasional mercenaries. In the meantime the fam- 
ihes of all our nobility and gentry groaned under the intolerable 
burthens, which (in consequence of the fiction adopted after the Con- 
quest) were introduced and laid upon them by the subtlety and finesse 
of the Norman lawyers. For, besides the scutages to which they were 
liable in defect of personal attendance, which however were assessed 
by themselves in parliament, they might be called upon by the king or 
lord paramount for aids, whenever his eldest son was to be knighted, 
or his eldest daughter married; not to forget the ransom of his own 
person. The heir on the death of his ancestor, if of full age, was 
plundered of his first emoluments arising from his inheritance, by 
way of relief and primer seisin ; and if under age, of whole of his 
estate during his infancy. And then, as Sir Thomas Smith® very feel- 
ingly complains, 'when he came to his own, after he was out of 
warship, his woods decayed, houses fallen down, stock wasted and 
gone, lands let forth and ploughed to be a barren,' to reduce him 
still farther, he was yet to pay half a year's profits as a fine for suing 
out his livery; and also the price or value of his marriage, if he 
refused such a wife as his lord and guardian had bartered for, and 
imposed upon him ; or twice that value if he married another woman. 
Add to this, the untimely and expensive honour of knighthood, to 
make his proverty more completely splendid, And when by these de- 
ductions his fortune was so shattered and ruined, that perhaps he was 
obliged to sell his patrimony, he had not even that poor privilege al- 
lowed him without paying an exorbitant fine for a license of aliena- 
tion." 

In the reign of James I a proposal was made to abolish all these 
incidents, but this proposal was defeated. On the overthrow of 
Charles I, steps were taken to do away with these feudal obligations, 
and a statute to that effect was enacted in 1656. On the restoration 
of Charles II, in 1660, the statute was re-enacted in order to put its 
validity beyond question. The statute provides as follows : 

St. 12 Car. II (1660) c. 2^1 — "An Act taking away the Court of 
Wards and Liveries and Tenures in Capite, and by Knight Service, 
and Purveyance, and for settling a Revenue upon his Majesty in lieu 
thereof. 

"Whereas it hath been found by former experience that the Court 
of Wards and Liveries and tenures by knight service either of the 
king or others, or by knight service in capite, or socage in capite of 
the king, and the consequents upon the same, have been much more 
burthensome, grievous and prejudicial to the kingdom than they havfe 
been beneficial to the king ; and whereas since the intermission of the 
said court, which hath been from the four and twentieth day of Feb- 
ruary, which was in the year of our Lord one thousand six hundred 
forty and five, many persons have by will and otherwise made dis- 

» Commonwealth of England, bk. 3, ch. 5. 



Sec. G) STATUTORY CHANGES IN THE FEUDAL SYSTEM 15 

posal of their lands held by knight service, whereupon divers questions 
might possibly arise unless some seasonable remedy be taken to pre- 
vent the same; be it therefore enacted by the King our Sovereign 
Lord, with the assent of the Lords and Commons in Parliament as- 
sembled, and by the authority of the same, and it is hereby enacted, 
That the Court of Wards and Liveries, and all Wardships, liveries, 
primer seisins and ousterlemains, values and forfeitures of marriages, 
by reason of any tenure of the King's Majesty, or of any other by 
knight service, and all mean rates, and all other gifts, grants, and 
charges, incident or arising for or by reason of wardships, liveries, 
primer seisins, or ousterlemains be taken away and discharged, and 
are hereby enacted to be taken away and discharged, from the said 
twenty-fourth day of February one thousand six hundred forty-five ; 
any law, statute, custom, or usage to the contrary hereof in any wise 
notwithstanding: And tliat all fines for alienations, seizures, and 
pardons for alienations, tenure by homage, and all charges incident 
or arising for or by reason of wardship, livery, primer seisin, or ous- 
terlemain, or tenure by knight service, escuage, and also aide pur file 
marrier, et pur faire fitz chivalier, and all other charges incident there- 
unto, be likewise taken away and discharged from the said twenty- 
fourth day of February one thousand six hundred forty and five: 
any law, statute, custom, or usage to the contrary hereof in any wise 
notwithstanding; And that all tenures by knight service of the king, 
or of any other person, arid by knight service in capite, and by socage 
in capite of the king, and the fruits and consequence thereof, hap- 
pened or which shall or may hereafter happen or arise thereupon or 
thereby, be taken away and discharged; any law, statute, custom, or 
usage to the contrary hereof in any wise notwithstanding. And all 
tenures of any honours, manors, lands, tenements, or hereditaments, 
of any estate of inheritance at the common law, held either of the 
king or of any other person or persons, bodies politick or corporate, 
are hereby enacted to be turned into free and common socage, to 
all intents and purposes, from the said twenty-fourth day of Feb- 
ruary one thousand six hundred forty-five, and shall be so construed, 
adjudged and deemed to be from the said twenty- fourth day of Feb- 
ruary one thousand six hundred forty-five, and forever hereafter, 
turned into free and common socage; any law, statute, custom, or 
usage to the contrary hereof in any wise notwithstanding. 

"2. And that the same shall forever hereafter stand and be dis- 
charged of all tenure by homage, escuage, voyages royal, and charges 
for the same, wardships incident to tenure by knight's service, and 
values and forfeitures of marriage, and all other charges incident to 
tenure by knight service, and of and from aide pur file marrier, and 
aide pur faire fitz chivalier ; any law, statute, usage, or custom to the 
contrary in any wise notwithstanding. And that all conveyances and 
devises of any manors, lands, tenements, and hereditaments, made 
since the said twenty-fourth day of February, shall be expounded to 



i6 THE FEUDAL SYSTEM (Ch, 1 

be of such effect as if the same manors, lands, tenements, and here- 
ditaments had been then held and continued to be holden in free and 
common socage only; any law, statute, custom or usage to the con- 
trary hereof in any wise notwithstanding, 

"3. And be i^ further ordained and enacted by the authority of this 
present Parliament, That an Act made in the reign of King Henry 
the Eighth, intituled An Act for the Estabhshment of the Court of 
the King's Wards ; and also one Act of Parliament made in the thirty- 
third year of the reign of the said King Henry the Eighth, concerning 
the officers of the Courts of Wards and Liveries, and every clause, 
article, and matter in the said Acts contained, shall from henceforth 
be repealed and utterly void. 

"4. And be it further enacted by the authority aforesaid, That all 
tenures hereafter to be created by the King's Majesty, his heirs or 
successors, upon any gifts or grants of any manors, lands, tenements, 
or hereditaments, of any estate of inheritance at the common law, 
shall be in free and common socage, and shall be adjudged to be in 
free and common socage only, and not by knight service, or in capite, 
and shall be discharged of all wardship, value and forfeiture of mar- 
riage, livery, primer seisin, ousterlemain, aide pur faire fitz chivalier 
and pur file marrier; any law, statute or reservation of the contrary 
thereof in any wise notwithstanding. 

"5. Provided nevertheless, and be it enacted. That this Act, or any- 
thing herein contained, shall not take away, nor be construed to take 
away, any rents certain, heriots, or suits of court, belonging or inci- 
dent to any former tenure now taken away or altered by virtue of 
this Act, or other services incident or belonging *to tenure in common 
socage due or to grow due to the King's Majesty, or mean lords, or 
other private person, or the fealty and distresses incident thereunto ; 
and that such relief shall be paid in respect of such rents as is paid 
in case of a death of a tenant in common socage. * * * 

"7. Provided also, and be it further enacted. That this Act, or 
anything herein contained, shall not take away, or be construed to 
take away, tenures in frankalmoign, or to subject them to any greater 
or other service than they now are ; .nor to alter or change any tenure 
by copy of court roll, or any services incident thereunto ; nor to take 
away the honorary services of grand serjeanty, other than of ward- 
ship, marriage, and value of forfeiture of marriage, escuage, voy- 
ages royal, and other charges incident to tenure by knight service; 
and other than aide pur faire fitz chivalier, and aide pur file marrier." 

The result of this statute, although the language of it is con- 
fusing, and the statute is poorly drawn, is clear. It abolished mili- 
tary tenure. It turned all tenure into free and common socage apd 
discharged most of even the slight burdens incident to that tenure. 

It is to be noticed that neither Quia Emptores nor the statute abolish- 
ing the court of wards and liveries affected the doctrine of tenure as 
such. The theory of English law is to-day what it was eight hun- 



Sec. 7) TENURE IN THE UNITED STATES 17 

dred years ago, namely, that the owner, even when he has the largest 
possible rights in his land that the law recognizes, is not the owner 
of his land in the same sense that he is, for example, the owner of 
his watch. He holds his land in tenure under the sovereign. 



SECTION 7.— TENURE IN THE UNITED STATES 



The question now remains for consideration as to the nature of 
land ownership in the United States. Does a man own his land, to 
use the illustration just given, in the same completeness of ownership 
that he owns his watch? This species of ownership as applied to 
land is termed allodial. Or, on the other hand, does tenure still pre- 
vail, at least in legal theory, in the states in this country ? This ques- 
tion may be of importance in two aspects : First, as to the right of 
esche at ; second, as involving the possibility of subin feudation. 

The doctrine of escheat, strictly speaking, depends on tenure. If 
the owner of land owned allodially dies without having disposed of his 
land and without leaving heirs, unless the sovereign has made provi- 
sion by statute for disposing of the title to it, it would seem that any 
person who obtained possession of the land could retain it simply 
because no one could show a right to put him out. If the owner of 
land held in tenure dies under the same state of facts, the land will 
^scheat to the overlord. 

The question of subinfeudation is, of course, closely associated with , , 
the question as to whether Quia Emptores is law in this country. J~ , 
If the land is owned allodially, of course, there can be no question of ^^^"^ J!**^ 
subinfeudation. If tenure exists in this country, then subinfeudation ^ ~<-JiL^\jL* 
is possible unless the doctrine of Quia Emptores is to be deemed a itKf >.^* . ; 
part of our law. 

When the charters were granted by the British crown for the 
various settlements in the United States, most of them contained pro- 
visions 'that the land should be held in socage tenure. Upon the Revo- 
lution, it would seem that the various state governments succeeded to 
the r ights of the sovereign, and that consequently there would be a 
tenure relation between the owner of the land and the sovereign, in 
the character of the state. In a considerable number of the states, the 
matter has been settled, either by a constitutional provision or by leg- 
islative enactment. Closely allied with this question is the question 
as to whether or not Quia Emptores is in force in the United States. 
Professor Gray ^° states the matter thus: 

"In this condition [i. e, with tenure no longer obtaining] are at 

xo The Rule against Perpetuities (3d Kd.) p. 23. 
Big. Int. — 2 



18 THE TEDDAL SYSTEM (Ch. 1 

least Connecticut, New York, Maryland, Virginia, Ohio, Wisconsin, 
West Virginia, Kentucky, Minnesota, and Arkansas. * * * j^ 
all of the United States, with the exception of South Carolina and 
perhaps Pennsylvania, land, if held, at all, can be held of none but the 
state ; for in all the States, with the two exceptions, either there is 
no tenure, or, if there is tenure, the statute of Quia Emptores is 
in force." ^^ 

11 On tenure in the United States see Gray, op. cit. §§ 22-28; 3 Kent, Com- 
mentaries, pp. 509-514. 



Sec. 2) ESTATES Ift 

CHAPTER II 
ESTATES 



SECTION 1.— INTRODUCTION 



Up to the present time we have be^n considering the English law 
so far as it related to the framework or skeleton upon which the gen- 
eral system of landholding was constructed. We now take-up the ques- 
tion as to the extent of the interest that might be had by any particu- 
lar individual in a given piece of land, or, as it is technically called, the 
extent of_his estate in the land. , 

The English law divides estates in land into freehold, and nonfree- 
hold^ This distinction is historical rather than logical, and the reason 
for it will be pointed out later. The freehold estates are the fee simple, 
the^eejajl^ other qualified, fees, and the life estate. The nonfreehold 
_estates are the estate for years, from year to year, at will, and at suf- 
ferance. 



SECTION 2.— FEES SIMPLE 



Without an attempt at an exact definition, it may be said that a per- 
son who holds land in fee simple possesses the totality of rights that a 
man may have with respect to a piece of land. Among these rights 
he has the privileges of doing as he sees fit with his land and the right 
to be protected in the exercise of these various privileges ; the limit of 
these rights and privileges being the point where the exercise of them 
is regarded as being socially unjustifiable*. Just where the law draws 
the line as to the privileges that a man may exercise with respect to the 
soil is a question of policy and expediency that need not at present be 
considered. The owner in fee simple further has the fullest powers 
of disposition over his land that the law recognizes, and complete im- 
munity from any control by a third person, subject to the legislative 
and constitutional powers of the state. 

While the exact nature of the right that the tenant had in his 
land immediately after the Norman Conquest is not entirely clear, it 
is probab le that the land was given to him by his overlord only for his 
life. The personal relation and confidence that existed between the 
lord~and the tenant would make this likely and this conclusion is corrob- 



20 ESTATES (Ch. 2 

orated by the existence of some of the feudal incidents. If, however, 
the heir of the tenant was a person in whom the lord could repose con- 
fidence, it would be natural that upon the death of the original tenant 
the land should be continued by the lord in the possession of the heir. 
Where the tenure was agricultural, and lacking the personal element 
that existed in military tenure, such -would be even more hkely to be 
the case. As the practice became confirmed, and partly as tending to 
confirm it, the custom gradually grew up of indicating in the gift of the 
land to the first tenant that it should go on his death to his heirs. It is 
at this point that we see the beginnings of an interesting and technical. 

.doctrine of our laws. If the lord by such a conveyance gave the land 
expressly to B. and his heirs, and if B. during his life aliened the land 
to C, the natural construction to be put upon the terms of the gift 
would be that B. had an interest in the land only for liis pwn life. This 
interest he might conceivably enough transfer to C, but C.'s interest 
could be no larger than B.'s, and consequently, after the death of B., 
B.'s heirs would be able to regain the land from C. Such was appar- 
ently the earlier law. Later, however (that is, by the 13th century), we 
find the rule of law to be pretty definitely established otherwise. This 
result is expressed in a doctrine and formula of a highly technical na- 
ture, but of so much importance in the law of real property as to re- 
quire some consideration. 

As has already been said, it would seem that the natural construc- 
tion of the phrase "to B. and his heirs" would be that the subject-mat- 
ter of the conveyance was given to B. for his life and after his death 
to his heir; in other words, that the heir would take the land after 
B.'s death, not as taking something coming to him from B., but be- 
cause he was the person intended by the original lord to be the next one 
to have the land. To state this idea in technical language, it is neces- 
sary to call attention to the precise meaning of two legal terms, "de- 
scent" and "purchase." A person is said to take land by descent when 

^Jitle to the land passes to him by operation of law ; he is said to take 
by purchase when the title passes to him by act of the partfes. • TSTow, 
to state technically the natural construction to be put upon the phrase 
under consideration, it would seem that the heir after the death of B. 
would take the property by purchase ; that is, because he is indicated 
by A. as the person to take it. As has already been said, however, by 
the 13th century, the doctrine seems to have been definitely established 
that, if B. conveyed the estate during his life, the heir would get no 
interest in it after B.'s death ; that is, the function of the phrase "to 
his heirs" was construed as being, not to indicate the person who would 
take the land after B.'s death, but to mark out or delimit the size of the 
estate that B. had, as the largest possible estate that could be given. In 
other words, to put it technically, the phrase "to his heirs" was treated 
as a phrase of limitation, and not of purchase. 

Once this construction of the phrase in question had been definitely 



Sec. 2) FEKS SIMPLE 21 

established as a part of the law of fees simple, it led to consequences 
far-reaching and important. Suppose the terms of the gift, instead of 
being to B. and his heirs, are to B. for life and on B.'s death to B.'s 
heirs. This limitation, though longer, in fact says nothing more than 
would the shorter phrase already considered, if the shorter phrase were 
to receive its natural construction. Since the two phrases were in nat- 
ural construction identical, and since it had been definitely established 
with respect to the shorter phrase that the phrase "to his heirs" was a 
jphrase^ of limitation, and not of purchase,, the same reasoning was ap- 
plied to the longer phrase ; that is, it was construed to vest a fee simple 
in B. Of course, if B. died without having aliened the land, it would 
go to B.'s heirs ; but it would go to them by descent, and not by pur- 
chase. The doctrine just outlined was first established by a decision 
in 1324,^ and illustrates the simplest form of the Ru le in Shelley's 



Case, so called after a decision in Lord Coke's time in which the doc- 
trine was reasserted.^ The rule may be formulated thus : Where an 
estate is given to the ancestor for life, and by the same instrument an 
immediate estate is given to his heir in fee, the result is to give the 
ancestor a fee simple. The artificial character of this reasoning is 
clear,- and of course the application of it will frequently operate to 
defeat the intention of the person making the conveyance. At the same 
time the idea that is worked out in it seems to represent a fundamental 
princ iple, of the policy of the English law with respect to ownership 
of la nd, namely, that the owner of it should be able freely to alienate 
rt The struggle in English law between the two conflicting princi- 
ples of freedom of alienation and restriction of alienation still con- 
tinues. 

One other consequence that should be noticed in respect to the doc- 
trine which we have been considering is this : Since a conveyance to B. 
and his heirs gives B. a fee simple, the converse is also true. With a 
few rare exceptions, the only method under English law whereby an 
estate in fee simple could be created was by a conveyance in terms to 
B. and "his heirs." No other phrase would take the place of this magic 
formula." 

1 Y. B. 18 Edw. II, 577. See 7 Man. & G. 941, note. It has been .suggested 
(see Tiedeman, Real Prop. [2d Ed.] § 433) that the origin of the doctrine is 
to be accounted for thus: In the 14th century it would not have been pos- 
sible to regard the phrase "to the heirs" as creating any legal interest in 
them, for the reason that since the heirs of the grantee could not be known 
until his death, this would be a contingent remainder, (see post, p. 39). and 
in the 14th century such a remainder was not recognized as a legally pos- 
sible interest. Consequently, to give any effect at all to these words of the 
grantor, it was necessary to put upon them the construction that was adopted. 

- Shelley's Case, 1 Co. 93a (1581). 

3 On the fee simple see Litt. §§ 1, 2; 2 Bl. op. eit. 104-109; 2 Poll. & Mait. 
op. cit. pp. 13-16; Williams, op. cit. ch. II; Leake, Digest of the Law of 
Property in Land (2d Ed.) pp. 22-24. 



^.^ 



22 ESTATES (Ch. 2 



SECTION 3.— FEES CONDITIONAL AND FEES TAIL 



Another very old form of limiting the size of the estate which was 
given to the tenant was this : "To B. and the heirs of his body." After 
the courts had held that the tenant in fee simple, had complete powers 
of alienation and had adopted the construction of the phrase "to B. and 
his heirs" as stated in the preceding section, it might still be possibl-e to 
limit the freedom of alienation of B. and to keep the estate in a definite 
line of descent by using the narrower form of limitation above given. 
The same liberalizing tendencies, however, on the part of the courts, 
were at work also in regard to this narrower limitation. By the middle 
of the 13th century the construction that was put upon the phrase was 
that the conveyance was to B. upon condition that he should have heirs 
to his body. Once the condition was satisfied by the birth of an heir, 
B. then had the power to create a fee simple in a third person by con- 
veying the estate to him. This construction, of course, defeated the 
aim of the overlord to keep the estate in a particular line of descent. 
It was to check this tendency, and force the retention of an estate given 
to a man and the heirs of his body in the line of descent marked out 
by the terms of the gift, that there was passed in the year 1285 the 
statute De Donis Conditionalibus. The statute is as follows : 

St. 13 Edw. I— St. of Westm. II (1285) c. 1, De Donis Condition- 
alibus : 

"First, concerning lands that many times are given upon condition, 
that is, to wit, where any giveth his land to any man and his wife, 
and to the heirs begotten of the bodies of the same man and his wife, 
with such condition expressed that if the same man and his wife die 
without heir of their bodies between them begotten, the land so given 
shall revert to the giver or his heir ; in case also where one giveth lands 
in free marriage, which gift hath a condition annexed, though it be 
not expressed in the deed of gift, which is this, that if the husband 
and wife die without heirs of their bodies begotten, the land so given 
shall revert to the giver or his heir; in case also where one giveth 
land to another and the heirs of his body issuing, it seemed very hard 
and yet seemeth to the givers and their heirs, that their will being 
expressed in the gift was not heretofore nor yet observed. In all the 
cases aforesaid after issue begotten and born between them, to whom 
the lands were given under such condition, heretofore such feoffees 
had power to aliene the land so given, and to disinherit their issue of 
the land, contrary to the minds of the givers, and contrary to the form 
expressed in the gift: and further, when the issue of such feoffee is 
failing, the land so given ought to return to the giver or his heir by 
form of gift expressed in the deed, though the issue, if any were, had 



Sec. 3) FEES CONDITIONAL AND FEES TAIL 23 

died; yet by the deed and feoffment of them to whom land was so 
given upon condition, the donors have heretofore been barred of their 
reversion of the same tenements which was directly repugTiant to the 
form of the gift : wherefore our lord the king, perceiving how neces- 
sary and expedient it should be to provide remedy in the 'aforesaid cas- 
es, hath ordained, that the will of the giver according to the form in the 
deed of gift manifestly expressed shall be from henceforth observed, so 
that t"Eey to whom the land was given under such condition shall have 
no power to aliene the land so given, but that it shall remain unto the 
issue of them to whom it was given after their death, or shall revert 
unto the giver or his heirs if issue fail either by reason that there is no 
issue at all, or if any issue be, it fail by death, the heir of such issue 
failing. Neidier shall the second husband of any such woman from 
henceforth have anything in the land so given upon condition after the 
death of his wife, by the land of England, nor the issue of the second 
husband and wife shall succeed in the inheritance, but immediately 
after the death of the husband and wife, to whom the land was so 
given, it shall come to their issue or return unto the giver or his heir as 
before is said. * * * /^^d it is to wit that this statute shall hold 
place touching alienation of land contrary to the form of gift here- 
after to be made, and shall not extend to gifts made before. And if a 
fine be levied hereafter upon such lands it shall be void in the law, nei- 
ther shall the heirs or such as the reversion belongeth unto, though they 
be of full age, within England, and out of prison, need to make their 
claim." 

The language of the statute requires no extended comment. The re- 
sult of it was that the old common-law conditional fee could no longer 
be created and in the place of it there came into being, as a result of 
the statute, the fees_tail, from the old French, "talliare," meaning to ^T^ 
cut or limit. Estates tail are classified as general or special tail. An 
estate tail general is to^A. and the heirs of his body. An estate tail 
_s2ecial may be to A. and the heirs male of his body, or to A. and the 
heirs fe male of his body, or to A. and the heirs of his body by a par- 
ticujar wife. With regard to any of the estates tail the property will 
continue in the line of the descent indicated by the terms of the gift so 
long as that line continues. If the line runs out, the property will then 
pass to the next person legally entitled to it according to the terms of 
the original grant, such person being known as a remainderman, or if 
there is no legal estate in remainder the property will then return to 
the original creator of the estate, or to his heirs. Estates in remainder 
and cognate matters will be considered in detail subsequently. 

The policy of thus restraining alienation in estates of this character, 
as established by De Donis, continued to be effective for about 200 
years. There were, however, numerous objections to it, and these ob- 
jections constantly grew in force. It was unsafe for a person to buy 
land, or to take a long-term lease of it, since there was always the pos- 



^^ 



24 ESTATES (Ch. 2 

sibility that the land was entailed, and, if such was the case, the pur- 
chaser, regardless of his good faith, would be ousted at the end of the 
life of the tenant from whom he purchased. The king also objected 
to this sort of estate, for the reason that the treason of a tenant in tail 
would result merely in forfeiting his life interest in the premises. 

The result of these various objections against the estate tail was that 
in 1472 (12 Edw. IV) the judges sanctioned a method of evading the 
effect of the statute, by means of fictitious litigation. The fictional 
character of the whole proceeding is so obvious that it is clear that 
there must have been strong feeling of policy to have induced the 
judges to permit it. The case in which this possibility was first recog- 
nized is Taltarum's Case.* The common recovery was a very old form 
of action, used, as its name would indicate, to recover the possession of 
land. The steps by which it was allowed to bar the entail were these : 
The principle had already become established that a tenant in tail could 
convey a fee simple and so bar his heirs, providing he left assets equal 
in value to the land. This was then enlarged into the proposition that 
he could so convey if he left for his heirs a judgment for the value of 
the land so conveyed. These principles were combined in the common 
recovery in this fashion. If B., the tenant in tail, wished to convey the 
land to C. in fee, C. would bring by agreement a common recovery 
against B. B. would allege that he had derived title in the land from 
X., and would ask that X. be called in to defend the case. X., upon 
being called in, would, in accordance with the agreement between him- 
self and B., admit that he had conveyed the land to B., but that he had 
no defense to C.'s action. Judgment would thereupon be given that C. 
should recover the land in accordance with the terms of his allegation 
that he was entitled to it in fee simple. B. and B.'s heirs would be given 
what in legal theory was an adequate recompense in the shape of a 
judgment against X. for other lands of equal value in respect of which 
A.'s interest as reversioner would also theoretically attach. Since, 
however, X. was always chosen for the part that he played, for the 
very reason that he was entirely irresponsible financially, the judgment 
against him, although adequate on the face of it, was, as was intended 
from the beginning, in fact worthless, and the net result of the trans- 
action was that C. obtained the land in fee simple and that the entailed 
line and the rights of the origmal donor of the land were barred. 

It will be noted that in De Donis it is provided that the rights of 
the heirs in tail or of the donor shall not be prejudiced by the levying 
of a fine. The fine was another form of lawsuit frequently used in 
order to transfer title to land. After the doctrine had been estab- 
lished that an estate tail could be transformed into a fee simple by a 
common recovery, a somewhat similar effect was given by statute to 
the levying of a fine. The difference was that a common recovery bar- 
red both the entail and the donor, whereas a fine barred only the entail. 

* Y. B. 12 Edw. IV, 19 (1472). 



Sec. 4) DETERMINABLE FEES 25 

Estates tail may now be barred in England by a deed in ordinary 
form, and a fee simple thereby vested in the grantee. 

In the United States fees, tail are possible, although rare. Roughly 
speaking, it may be said that three different methods have been adopted 
in dealing with them : In some of the states a conveyance to A. and 
the heirs of his body gives A. a life estate, followed by an estate in 
fee to the first heir who at common law would take under the entail. 
In some states such a limitation operates merely to create a fee simple 
in A. In other states the result is to create a true estate tail, but any 
tenant in tail may destroy it by an ordinary deed conveying the prem- 
ises in fee simple."* 



SECTION 4.— DETERMINABLE FEES 



A question which is too difficult to do more than touch on in the 
present treatise should be briefly mentioned. That is whether it is pos- 
sible to create a fee (that is, an estate which may last forever) with a 
limitation other than as a fee tail. It seems clear that at least one fee of 
this character can be created. In referring to the possibilities of con- 
veying an estate in fee simple by the levying of a fine by the tenant in 
tail, attention was called to the fact that the fee so created would last 
only as long as the entailed line lasted. This fee is what is technically 
known as a "base fee." 

The following situation raises a more doubtful question : A. conveys 
land to B. and his heirs for so long as they continue to occupy it in per- 
son. If at any time they cease so to do, may A. then re-enter into the 
land ? If this conveyance is covered by Quia Emptores, it is clear that 
A. cannot do so. His right can exist only if there is a relation of tenure 
between him and B., and the eflfect of the statute would be to cut off 
any such relation between himself and B., and B. would seem conse- 
quently to have a fee simple absolute in the land. If, on the other hand, 
the statute applies only to the case of a fee simple absolute, then A. 
would still retam such an interest in the land as would authorize h'im to 
enter upon the violation of the terms on which it was held. Some de- 
cisions seem to indicate that the statute does not apply to this case, and 
that consequently that it is still possible to create this fee which is tech- 
nically called a determinable fee. The matter, however, cannot be 
deemed free from doubt.' 

B On fees conditional and tail see 2 Bl. op. cit. pp. 100-120; 2 Poll. & Mait. 
op. cit. pp. 16-20; Co. JAtt. §§'13-19, 21-24; Williams, op. cit. cb. Ill; 
Leake, op. cit. pp. 24-28; Challis, Keal Property (3d Ed.) eb. XVIII. 

6 On determinable fees see Cballis, op. cit chs. XVII, XIX, App. IV ; 
Gray, op. cit. §§ 31-^1, App. E. 



26 ESTATES (Ch. 2 

SECTION 5.— ESTATES FOR LIFE 



With the estate for Hfe we take up the most limited of the freehold 
estates. The owner of a fee simple or a fee tail, convertible either by a 
common recovery or otherwise into a fee simple, has the utmost priv- 
ileges that can be exercised by any person in respect to land. He may 
cut down the timber, destroy the houses, or in any other manner deal 
with the property as he pleases. This is not true of the tenant for life. 
His privileges of user and his powers of disposal of the property are 
limited. 

Estates for life are ordinarily divided into two sorts, yiz. : Estates 
created by act of the party, and estates created by operation of law. 
We shall deal with each in turn. 

Estates for life created by act of the parties may be either an estate 
for the life of the tenant, or an estate for the life of some third person 
or persons. The simplest case is where A., owning in fee, grants to B. 
for B.'s life. When B. dies, his estate naturally comes to an end. 
If the estate is granted to B. for any indeterminate period, so that the 
earliest possible moment at which the estate must terminate is B.'s 
death, this is also a Hfe estate; as, for example, where the estate is 
given to B. so long as he remains unmarried. 

If A. grants to B. to hold during the hfe of C, this is what is tech- 
nically known as an estate d'autre vie. If C. dies while B. is still alive, 
B.'s estate, of course, comes to an end, and A. is entitled to re-enter 
the land, A more difficult problem arises if B. dies first. Suppose that, 
after the death of B., X,, a stranger, takes possession of the land. A. 
cannot evict him because, by the terms of his grant to B.,.A. would have 
no right to enter until the death of C. A.'s overlord cannot claim it on 
the ground of escheat, because there is no escheat, except in the case of 
a fee simple. C. cannot claim it, because his life is used merely as a 
means of measuring the duration of the estate, and not to confer any 
beneficial interest. B.'s heir cannot enter, because B.'s estate was not 
an estate of inheritance. The result is that X. is enabled to hold the 
land as long as C. -Uves, merely because there is no one legally able 
to put him out. C. is technically known as a general occupant. This 
common-law doctrine has now been changed by statutes. B. may 
leave the land by will, and, if he does not do so, it goes under some 
statutes as his real property, and under other statutes as his personal 
property. If the land is conveyed by A. to B. and his heirs for the life 
of C., the heir would take in that case after B.'s death as special occu- 
pant, taking by purchase and not by descent.'' 

The life estates created by operation of law are of three sorts: 

T See Co. Litt. 41b-42b ; Leake, op. cit, 144-149 ; Williams, op. cit. 110-116. 



Sec. 5) ESTATES FOR LIFE 27 

Curtesy, dower, and tenant in special tail with possibility of issue 
extinct. The estates of dower and curtesy and their various incidents 
are well described by Blackstone.^ 

"Tenant by the curtesy of England, is where a man marries a 
woman seised of an estate of inheritance, that is, of lands and tene- 
ments in fee simple or fee tail; and has by her issue, born alive, 
which was capable of inheriting her estate. In this case he shall, on 
the death of his wife hold the lands for his life, as tenant by the 
curtesy of England. * * * 

"There are four requisites necessary to make a tenancy by the 
curtesy: Marriage, seisin of the wife, issue, and death of the wife. 
1. The marriage must be canonical and legal. 2. The seisin of the 
wife must be an actual seisin, or possession of the lands ; not a bare 
right to possess, which is a seisin in law, but an actual possession, 
which is a seisin in deed. And therefore a man shall not be tenant 
by the curtesy of a remainder or reversion. * * * jf t^g ^{fe be 
an idiot, the husband shall not be tenant by the curtesy of her lands; 
for the king by prerogative is entitled to them, the instant she her- 
self has any title; and since she could never be rightfully seised of 
the lands, and the husband's title depends entirely upon her seisin, the 
husband can have no title as tenant by the curtesy. 3. The issue must 
be born alive. Some have had a notion that it must be heard to cry; 
but that is a mistake. Crying indeed is the strongest evidence of its 
being born alive ; but it is not the only evidence. The issue also must 
be born during the life of the mother: for if the mother dies in labour, 
and the Caesarean operation is performed, the husband in this case 
shall not be tenant by the curtesy; because at the instant of the 
mother's death he was not clearly entitled, as having had no issue 
born, but the land descended to the child while he was yet in his 
mother's womb; and the estate being once so vested, shall not after- 
wards be taken from him. In gavelkind lands, a husband may be 
tenant by the curtesy, without having any issue. But in general there 
must be issue bom: and such issue as is also capable of inheriting 
the mother's estate. Therefore, if a woman be tenant in tail male, 
and hath only a daughter born, the husband is not thereby entitled to 
be tenant by the curtesy; because such issue female can nc.^er inherit 
the estate in tail male. And this seems to be the principal reason why 
the husband cannot be tenant by the curtesy of any lands of which the 
wife was not actually seised ; because, in order to entitle himself to 
such estate, he must have begotten issue that may be heir to the 
wife: but no one, by the standing rule of law, can be heir to the 
ancestor of any land whereof the ancestor was not actually seised; 
and therefore, as the husband hath never begotten any issue that can 
be heir to those lands, he shall not be tenant of them by the curtesy. 
And hence we may observe, with how must nice'y and consideration 

8 2 Com. 126 et seq. See, also, Co. Lit. 29a-30a, 31u-33b= 




28 ESTATES ' (Ch. 2 

the old rules of law were framed ; and how closely they are connected 
and interwoven together, supporting, illustrating, and demonstrating 
one another. The time when the issue was born is immaterial, pro- 
vided it were born during the coverture: for, whether it were born 
before or after the wife's seisin of the lands, whether it be living or 
dead at the time of the seisin, or at the time of the wife's decease, 
the husband shall be tenant by the curtesy. The husband by the birth 
of the child becomes (as was before observed) tenant by curtesy 
initiate and may do many acts to charge the lands ; but hij estate is 
not consummate till the death of the wife; which is the fourth and 
last requisite to make a complete tenant by the curtesy. 

"Tenant in dower is where the husband of a woman is seised of 
an estate of inheritance, and dies; in this case, the wife shall have 
the third part of all the lands and tenements whereof he was seised 
at any time during the coverture, to hold to herself for the term of her 
natural life. ♦ * * 

"In treating of this estate, let us, first, consider who may be en- 
dowed; secondly, of what she may be endowed; thirdly, the manner 
how she shall be endowed; and fourthly, how the dower may be 
barred or prevented. 

"1. Who may be endowed? She must be the actual wife of the 
party at the time of his decease. If she be divorced a vinculo matri- 
monii, she shall not be endowed; for ubi nullum matrimonium ibi 
nulla dos. But a divorce a mensa et thoro only, does not destroy the 
dower; no, not even for adultery itself by the common law.' Yet 
now by the statute Westm. 2, if a woman voluntarily leaves (which 
the law calls eloping from) her husband, and lives with an adulterer, 
she shall lose her dower, unless her husband be voluntarily reconciled 
to her. It was formerly held, that the wife of an idiot might be en- 
dowed, though the husband of an idiot could not be tenant by the 
curtesy; but as it seems to be at present agreed, upon principles of 
sound sense and reason, that an idiot cannot marry, being incapable of 
consenting to any contract, this doctrine cannot now take place. * * * 

"2. We are next to inquire, of what may a wife be endowed? 
And she is now by law entitled to be endowed of all lands and tene- 
ments, of which her husband was seised in fee simple or fee tail, 
at any time during the coverture; and of which issue, which she 
might have had, might by possibility have been heir. Therefore, if a 
man seised in fee simple, hath a son by his first wife, and after mar- 
ries a second wife, she shall be endowed of his lands ; for her issue 
might by possibility have been heir, on the death of the son by the 
former wife. But if there be a donee in special tail who holds lands 
to him and the heirs of his body begotten on Jane his wife; though 
Jane may be endowed of these lands, yet if Tane dies, and he marries 
a second wife, that second wife shall never oe endowed of the lands 
entailed ; for no issue that she could have, could by any possibility 
inherit them. A seisin in law of the husband will be as effectual as a 



Sec. 5) ESTATES FOB LIFE 29 

seisin in deed, in order to render the wife dowable ; for it is not in 
the wife's power lo bring the husband's title to an actual seisin, as 
it is in the husband's power to do with regard to the wife's lands: 
which is one reason why he shall not be tenant by the curtesy, but 
of such lands whereof the wife, or he himself in her right, was ac- 
tually seised in deed. The seisin of the husband, for a transitory 
instant only, when the same act which gives him the estate conveys it 
also out of him again (as where, by a fine, land is granted to a man, 
and he immediately renders it back by the same fine), such a seisin 
will not entitle the wife to dower ; for the land was merely in transitu, 
and never rested in the husband, the grant and render being one con- 
tinued act. But if the land abides in him for the interval of but a 

single moment, it seems that the wife shall be endowed thereof. 

* * * 

"3. Next, as to the manner in which a woman is to be endowed. 

♦ * * 

"By the old law, grounded on the feudal exactions, a woman could 
not be endowed without a fine paid to the lord; neither could she 
marry again without his license: lest she should contract herself, and 
so convey part of the feud, to the lord's enemy. This license the lords 
took care to be well paid for ; and, as it seems, would sometimes force 
the dowager to a second marriage, in order to gain the fine. But, 
to remedy these oppressions, jt was provided, first by the charter of 
Henry I, and afterwards by Magna Carta, that the widow shall pay 
nothing for her marriage, nor shall be distrained to marry afresh, if 
she chooses to live without a husband ; but shall not however marry 
against the consent of the lord ; and farther, that nothing shall be 
taken for assignment of the widow's dower, but that she shall remain 
in her husband's ^capital mansion house for forty days after his 
death, during which time her dower shall be assigned. These forty 
days are called the widow's quarantine, a term made use of in law 
to signify the number of forty days, whether applied to this occasion, 
or any other. The particular lands, to be held in dower, must be 
assigned by the heir of the husband, or his guardian ; not only for the 
sake of notoriety, but also to entitle the lord of the fee to demand 
his services of the heir, in respect of the lands so holden. For the 
heir by this entry becomes tenant thereof to the lord, and the widow 
is immediate tenant to the heir, by a kind of subinfeudation, or under- 
tenancy .completed by this investiture or assignment; which tenure 
may still be created, notwithstanding the statute of Quia Emptores, 
because the heir parts not with the fee simple, but only with an es- 
tate for life. If the heir or his guardian do not assign her dower 
within the term of quarantine, or do assign it unfairly, she has her 
remedy at law, and the sheriff is appointed to assign it. Or if the 
heir (being under age) or his guardian assign more than she ought to 
have, it may be afterwards remedied by writ of admeasurement of 
do?ver. If the thing of which she is endowed be divisible, her dower 



30 ESTATES (Ch. 2 

must be set out by metes and bounds; but if it be indivisible, she 
must be endowed specially; as the third presentation to a church, 
the third toll dish of a mill, the third part of the profits of an office, 
the third sheaf of tithe, and the like. * * * 

"4. How dower may be barred or prevented. A widow may be 
barred of her dower * * * by elopement, divorce, being an alien, 
the treason of her husband. * * * ^ woman may also be barred 
of her dower by levying a fine, or suffering a recovery of the lands, 
during her coverture. But the most usual method of barring dowers 
is by jointures. * * * 

"But then these four requisites must be punctually observed: 1. 
The jointure must take effect immediately on the death of the husband. 
2. It must be for her own life at least, and not pur autre vie, or for 
any term of years, or other smaller estate. 3. It must be made to 
herself, and no other in trust for her. 4. It must be made, and so in 
the deed particularly expressed to be, in satisfaction of her whole dow- 
er, and not of any particular part of it. If the jointure be made to 
her after marriage, she has her election after husband's death, as in 
dower ad ostium ecclesise, and may either accept it, or refuse it and 
betake herself to her dower at common law ; for she was not capable 
of consenting to it during coverture. And if, by any fraud or acci- 
dent, a jointure made before marriage proves to be on a bad title, 
and the jointress is evicted, or turned out of possession, she shall then 
(by the provisions of the same statute) have her dower pro tanto at 
the common law." 

The tenancy in special tail with possibility of issue extinct is of 
rare occurrence. This estate may arise in this fashion. A. grants 
land to B. and the heirs of his body by his wife C. C. dies, not hav- 
ing had issue. It is obvious that this estate, since, the special limita- 
tion, can no longer be satisfied, must necessarily terminate with the 
Hfe of B.» 



SECTION 6.— ESTATES LESS THAN FREEHOLD 



Before entering into a consideration of nonfreehold estates, at- 
tention should be called to the various meanings of the term freehold. 
The term has at least three distinct meanings : It may be used to de- 
scribe the quantity of the estate, the sense in which it is being used 
in this present discussion; the term may be used to indicate the 
character of the tenure upon which land is held, thus contrasting a 
freehold tenure with a servile tenure ; the term may be used to indi- 
cate possession of the land, as distinguished from an interest that 
is not possession, as where one speaks of the freeholders, meaning 

» 2 Bl. op. cit. 124-126 ; Co. Lit. 27b-28b. 



Sec. 6) ESTATES LESS THAN FREEHOLD 31 

thereby, the ones in actual possession of the soil, with or without a 
freehold estate, and irrespective of the nature of the tenure. 

The distinction between the estates that are classified as freehold 
in the sense in which we are at present using the term and the non- 
freehold estates is one that is historical in its nature rather than logical. 
If we go back to the centuries immediately following the Norman 
Conquest, we find that at that time the normal method of holding 
land was either by estates for life^ or by larger estates of the sort 
already described ; the putting out of land on leases for years, al- 
though not unknown, was rare. It is possible, although not certain, 
that at a very early date a lease for more than forty years was void. 
In any event, the person having a lease for years was regarded as 
having a right that was in the nature of a contract right against the 
lessor rather than in the nature of a property right in the land. 
If he was ejected from the land by the lessor, his remedy against the 
lessor was more analogous to an action of contract than to an action 
to assert a property right in the land. If the eviction was by a third 
person, the only recourse of the lessee so evicted was through his 
lessor, by virtue of the obligation of his lessor to see that he should 
quietly enjoy the leased lands, or, if that could not be done, to pro- 
vide him with other lands. As a corollary of the conception of the 
j:igllt_Qijthe^_lessee for years as being essentially contractual, it was 
treated as persona lty^ and not as realty, and it therefore had the inci- 
dents of personal_property ; that is, it could be left by will, which 
was not true of real property until a much later date, and in the event 
of intestacy the transmission of the title would be governed by the 
laws relating to personal property. 

During the 13th century the precarious position of the lessee for 
years, so far as the nature of his interest in the land was concerned, 
was amehorated. In the year 1235 the action of quare ejecit was 
created, by which the lessee was allowed to assert his possessory right 
in the land as against the lessor or a purchaser from the lessor who 
wrongfully ejected him, by a judgment which restored him to pos- 
session'. By the end of the 13th century the action of trespass quare 
clausum fregit was definitely established, so that the lessee for years 
could recover damages against anyone interfering with his possession. 
Later a specialized form of trespass, de ejectione firmae, was devel- 
oped, by which the termor was enabled to regain possession of the 
land from any person wrongfully evicting him. This latter action 
gradually became the accepted form of action for determining the 
right to the possession of the land, not only in case of tenancies for 
years, but generally. 

Despite these developments in the protection of the property as- 
pect of the interest of the lessee for years, with the result that for the 
last 500 years he has been just as completely protected in the pos- 
session and enjoyment of the land for the duration of his term as is 



32 ESTATES (Ch. 2 

the tenant in fee, the interest is still treated as personal property,, anjd__ 
js technically kriown as a chattel real. In some jurisdictions the in- 
congruity of treating leases for long terms of years as chattels has 
been recognized and done away with by. statutes, which provide that 
leases for more than a specified period shall be treated as realty. 

Another species of nonfreehold estate is the tenancy at will, as 
where the land is leased by A. to B., to hold at the will of A. As 
the name implies, the lease may be terminated by A. at any time. 
In the event of such termination, B. has a reasonable time to remove 
his property and is entitled to the annual crops then growing on the 
land. A correlative of the right of termination by the lessor is that 
the lease is also terminable at the will of the lessee. It should be no- 
ticed, however, -that a lease which is to terminate solely at the will_oX 
B. is a tenancy, not at will, but for life. 

For a long time the undesirability of the strict tenancy at will, its 
unfairness to both lessee and lessor, has been recognized, and from 
the strict tenancy at will has developed the tenancy from year tq^ 
year. This is a tenancy which can be terminated by either party only 
upon the giving of a half year's notice of the desire to terminate. 

The tenancy at sufferance, so called, is, properly speaking, not a 
tenancy at all. The situation to which the term is applied is where 
the lessee, whose estate has terminated, nevertheless continues to re- 
main in the possession of the land. He cannot properly be classified 
as a trespasser, because his entry was lawful, and to that slight ex- 
tent he has the characteristic of a tenant. His retention of possession, 
however, since it is not with the consent of the landlord, either ex- 
press or implied, is unlawful, and makes the application of the term 
"tenant" to him a misnomer. The landlord may at any time turn 
him into a tenant by treating him as such.^** , 



SECTION 7 —SEISIN AND POSSESSION 

The distinction that the law makes between freehold and nonfree- 
hold estates, which has already been referred to, is of importance in 
another regard, namely, in the distinction between seisin and posses- 
sion. The word "seisin" is a very old one in the EngUsh law. In 
the first one or two centuries after the Conquest, it was used merely 
to indicate possession, either of land or of chattels. Thus the old 
writers speak indifferently of a man being seised of land or of a 
horse. Gradually, however, the term "seisin" began to take on a 

10 On estates less than freehold see 2 Bl. op. cit. cli. IX; Lit. § 58; 2 Poll. 
& Malt. op. cit. 106-117; Digby, op. cit. 176, 177. 



Sec. 7) SEISIN AND POSSESSION 33 

more technical meaning, and to be distinguished from the word "pos- 
session."^^ 

In discussing the origin of the nonfreehold estates it has been 
pointed out that the estate for years was in the beginning regarded as 
giving the lessee for years only a contract right . against his lessor, 
that his occupation of the land was merely in tlie nature of a servant 
or bailee to the lessor, and that for the purposes of determining feudal 
relations and obligations the freehold lessor of the tenant for years 
was the only one looked to by the overlord. Gradually the term 
"seisin" was applied only to denote the possession of a tenant holding 
a freehold estate, and the interest of a tenant holding a nonfreehold 
estate was designated as possession, and this difference in the terms 
is now definitely established. Consequently, if A., owning in fee, leas- 
es to B. for years, B. has the possession, but A, still retains the 
seisin, even though, of course, the de facto occupant of the land is B. 

The next step in the development of the doctrine of seisin may he 
illustrated by the following case: Suppose A., the owner in fee, 
grants to B. for life. B., now having a frieehold estate, has the 
seisin. B., however, owes A. the feudal obligations of homage, fealty, 
and the like. Consequently the feudal lawyers said that A. also was 
seised in respect of these rights. They distinguished between the 
two by saying that B. was jeised in his demesne and that A. was 
seisedjn jiis^sfiXYices, This idea of a seisin that was not in fact ac- 
companied by an actual possession was applied in another type of 
case. Thus, if A. had a right to rent from B.'s land, and A.'s estate 
in the rent was a freehold (i. e., in fee or for life), A. was said to be 
seised of the rent to which he is thus entitled ; and if A. was deprived 
of the rent by the tortious act of B. or of a third person, A. was 
said to be disseised of the rent, and he could bring an action to recover 
the rent that was almost identical with the action that he would bring 
to recover the seisin of land from which he had been tortiously ousted. 
It is not necessary to follow further these interesting questions of the 
somewhat refined doctrines of seisin. Our concern at present is only 
with the seis in of the demesne ; that is, with the actual possession of 
the_land under a freehold title. In connection with the idea of seisin 
in this most elementary sense one other aspect of the doctrine, of ex- 
treme importance in the law of conveyances of interests in land and 
of the creation of future estates in land which are next to be consid- 
. ered, requires to be specifically stated. The purpose of the feudal 
organization of society and the whole theory upon which it was con- 
structed were that all land should always be in the possession of some 
tenant having a freehold interest therein — that is, a seisin — who should 
be responsible for the performance of the feudal obligations. From 
this principle follows 'the doctrine that the seisin of land can never 

11 See 1 Maitlaud, Coll. Pap. 329-384. 

BiQ.lNT.— 3 



34 ESTATES (Ch. 2 

be in abeyance, or, to state the same thing in a different form, that 
some one must always be seised of any given piece of land. There" 
were a few minor exceptions to this rule, but they are of so slight im- 
portance as not to require further mention.^* 



SECTION 8.— TRANSFER OF SEISIN AND POSSESSION 



The most natural and obvious way of transferring rights in any 
tangible object is by delivering that object to the person to whom it 
is desired to transfer the rights in it. Indeed, if the rights are con- 
ceived of as inhering in the object, this would seem to be almost the 
only way by which the rights could be transferred. One of the oldest 
and the most commonly used methods of conveying estates in land 
was based upon this conception. To be sure, the land could not be 
physically picked up like a book and handed to the grantee. But the 
nearest approximation to that would be equally satisfactory, namely, 
to put the grantee physically into the possession of the land, under 
such circumstances as would make it manifest that the intent was 
thereby to transfer to him a freehold interest in the land. This 
was in fact, as has already been said, the most common way of trans- 
ferring seisin of land under the early English law. It was technical- 
ly called livery of seisin, or feoffment. It was done by A., the feoffor, 
taking B~the feoffee, to the land in question and there handing him 
a branch or a piece of turf as a symbolical delivery of the land. 
No deed was required ; the physical act of delivery was the operative 
act to transfer the title. As a matter of security this always took 
place in the presence of witnesses, and,, if the transaction was of any 
importance, a formal document was ordinarily drawn up, stating the 
fact of the livery, and what land was given, and for what estates. 
This document was called the char ter of feoffment From the na- 
ture of livery of seisin it follows that it was a present act — that is, 
the seisin could be passed out of the feoffor only by an act of present 
delivery ; an attempt to make a livery of seisin to take effect at some 
future date was a nullity. This doctrine appears to have been qual- 
ified somewhat by the so-called livery in law. Under this latter doc- 
trine the feoffor could take the feoffee to the neighborhood of the 
land, point it out to him, and declare to him that he thereby gave him 
livery. This was effectual if the feoffee entered into the land during 
the life of the feoffor. 

The method adopted for the transfer or creation of nonfreehold 
interests was analogous to livery of seisin. Of course, since the ten- 
ant for years had only a possession, and not seisin, the transaction 

12 On seisin and possession see 2 Toll. & Mait. op. pit. 29-40. 



Sec. 8) TRANSFER OF SEISIN AND POSSESSION 35 

was not technically a livery of seisin. But the same fundamental 
idea of a physical installation on the land prevailed. It was a less 
ceremonious affair, partly, doubtless, for the reason that the estate 
created was of not so long a duration. There was one important dif- 
ference between the creation of a freehold estate and a nonfreehold 
estate. Since the nonf reehold estatewas in its origin a co ntract rather 
than a property right, the doctrine that the estate could not be cre- 
ated to begin in futuro had no application. Consequently, A. could 
make a lease to B. of Blackacre to begin at a specified future date. 
On that date it was merely necessary for B. to entfer into possession. 
He was not regarded as having a leasehold interest in the interval, 
but he was regarded as having a right to the lease, and this right was 
technically called an mteresse termini. 

If A., the owner in fee, wished to convey his land to B. in fee, 
subject to a contemporaneous tliree-year lease in favor of C, this re- 
quired a combination of livery of seisin and possession ; the seisin 
clearly could not be delivered directly to B., for that would mean 
putting him into the land to the exclusion of C.'s leasehold interest. 
On the other hand, C. could not take a livery of seisin to himself, 
since he had a nonfreehold interest. The creation of these estates 
was accomplished by putting C. into the possession of the land and 
delivering seisin to him for B., who was thus considered as having 
been vested with the seisin subject to C.'s three-year possessory in- 
terest. 

These methods of creating freehold and nonfreehold estates con- 
tinued in England unchanged by statute until the latter part of the 
17th centuiy. In the Statute of Frauds it was provided, among other 
things that "all leases, estates, interests of freehold, or terms of 
years, or any uncertain interest of, in, to or out of any messuages, 
manors, lands, tenements or hereditaments made or created by' livery 
and seisin only, or by parol, and not put in writing and signed by the 
parties so making or creating the same, or their agents thereunto law- 
fully authorized by writing, shall have the effect of leases or estates 
at will only, and shall not, either in law or equity be deemed or taken 
to have any other or greater force or effect ; * ♦ ♦ except never- 
theless all leases not exceeding the term of three years from the mak- 
ing thereof." * * *^' 

The law as thus outlined continued substantially unchanged until 
the 19th century, at which time, after various pieces of legislation, it 
was finally provided in 1845 (8 & 9 Vict. c. 106, § 2) that after Oc- 
tober 1, 1845, all corporeal tenements and hereditaments should, as 
regards the conveyance of the immediate freehold thereof, be deemed 
to lie in grant as well as in Uvery. 



13 29 Car. II (1676) c. 3, §§ 1, 2. 

On livery of seisiu and possession see Co. Lit. 4Sa, 4Sl); 2 Bl. op. cit 
RlO-316. 



36 NONPOSSESSOET INTERESTS IN LAND (Cll. 3 

CHAPTER III 
NONPOSSESSORY INTERESTS IN LAND 



SECTION 1.— INTRODUCTION 



Up to the present time, in discussing the nature of the interests or 
estates that might be created in land, the discussion has been confined 
to a consideration of the larger or smaller group of rights that might 
be had by the person in the occupation of the land, whether this 
occupation be technically described as seisin of a freehold estate or 
possession of a nonfreehold estate, and whether the group of rights 
was the complete group embraced in the term fee simple or the com- 
^ paratively limited group of rights embraced in the idea of a tenancy for 

years. Regardless of these variations, the rights have always b een 
' " "' ■ those relating to the physical occupation of the land. Rights of this 
nature are technically classified under the English law as corporeal 

U English law, however, has always recognized that there may be 

5^-^ rights in land held by those who are not entitled to the actual occu- 

pation thereof. These have to a certain extent already appeared by 
inference in the matters that have been considered. Thus, where A. 
grants to B. for life or for years, the seisin or possession of the land 
is in B., but it is clear that A. nevertheless retains rights in the land 
which may be of as great or even greater importance than those of B. 
So, again, B. may own land in fee simple, but A. may have a right to 
rent from tlie land, or a right of going over the land. In tliese cases, 
also, it is clear that A. has some legal interests in the land, although 
they are not of a possessory nature. Interests of this second sort are 
termed jncorporeal rights^ 

It is worth while to pause for a moment to point out that this ter- 
minology, "corporeal" and" "incorporeal" rights, is not a scientifically 
sound one. The law is never concerned with a physical object as such. 
The sole subject-matter of law is rights, and rights are in all cases re- 
lations between individuals. The relation may be purely between in- 
dividuals, or it may be between individuals with respect to physical 
objects, such as chattels or land. But rights as such in every case are 
merely intellectual concepts. It would seem that the distinction be- 
tween corporeal and incorporeal rights would be more accurately ex- 
' pressed as a distinction between possessory and nonpossessory rights. 

The difficulty has been explained by Digby as follows : ^ 

1 Op. cit. p. 306, note 2. Compare Challis, op. cit. p. 49 et seq. 



Sec. 1) INTRODUCTION 37 

"The division of hereditaments into corporeal and incorporeal, 
though deeply rooted in our legal phraseology, is most unfortunate and 
misleading. The confusion is inherited from the Roman lawyers (see 
Justinian, Inst, ii, tit. 2), but has been made worse confounded by our 
own authorities. The Romans, misled by the double sense of res, un- 
happily distinguished res corporales and res incorporales ; the former 
being things 'quae tangi possunt, veluti aurum, vestis,' the latter mere 
rights, 'quae in jure, consistunt.' It is obvious that this is mere con- 
fusion ; the two ideas not being in pari materia, or capable of being 
brought under one class, or of forming opposite members of a division. 
Following the Romans, our lawyers distinguished between heredita- 
ments as meaning the actual corporeal land itself, and another kind of 
hereditaments as not being the land itself, but 'the rights annexed to or 
issuing out of the land.' A moment's reflection is sufficient to show 
that the distinction is untenable. The lawyer has notliing whatever to 
do with the material corporeal land, except so far as it is tlie subject of 
rights. It is the distinction between diflferent classes of rights, and not 
between land on the one side and rights on the other, that he is con- 
cerned with. In such phrases as 'the land descends to the heir,' what 
is meant is, not that something happens to the land itself, but that a 
particular class of the ancestor's rights in relation to tlie land descends 
to the heir. The names 'corporeal' and 'incorporeal' are most unfor- 
tunate, because, if by 'corporeal' is meant 'related to land,' then a large 
class of incorporeal hereditaments are also entitled to the name ; if by 
'incorporeal' is meant that they are mere rights, then all hereditaments 
are incorporeal, because the lawyer is only concerned with different 
classes of rights. * * * " 

While the justice of this criticism seems clear, the phrases in ques- 
tion are firmly established as a part of the English legal vocabulary, 
and so long as their meaning is understood their inexactness is no se- 
rious bar to their usefulness. 

Incorporeal rights may be divided into two different classes. There 
are, first, those that may ultimately develop into corporeal or complete 
possessory interests. Such is the nature of A.'s interest where he has 
leased to B. for a term of years. During the continuance of B.'s lease, 
A.'s interest is incorporeal or nonpossessory. At tlae end of the term 
his interest will once more become possessory The second group of 
nonpossessory rights is those which do not have this characteristic. 
The right of way or the right to rent mentioned above are sufficient 
illustrations of this species of incorporeal rights. Rights of this second 
sort are grouped by Blackstone under the head of incorporeal heredita- 
ments, and will be discussed in detail later on. For the present we 
shall confine ourselves to the first group of incorporeal rights. 



38 NONPOSSESSORY INTERESTS IN LAND (Ch. 3 



SECTION 2.— REVERSIONS AND REMAINDERS 



If A., owning land in fee simple, conveys to B. in fee simple, A. 
thereby disposes of his entire interest in the land. Under Quia Emp- 
tores B. now holds the land, not under A., but under A.'s overlord. If 
B. dies, not having disposed of the land and leaving no heirs, the land 
will escheat to the overlord by virtue of the fact that the estate has 
terminated and that there is a tenure relation between the overlord and 
B. If, on the other hand. A., being seised in fee, conveys to B. for 
life, B. has not acquired all of A.'s interest in the property. The re- 
lation between A. and B. in this case is not affected by Quia Emptores. 
A. still owns the fee of the land, subject to the life estate which he 
has created in B., and after B.'s death or the other earlier termination 
of the life estate, the land will revert to A., and he will be entitled to 
resume possession thereof. The same thing is true if A. conveys land 
to B. in tail, and the entailed line runs out, or the estate is otherwise 
terminated; A.'s right, of course, being subject to the possibility of be- 
ing barred by B.'s suffering a common recovery. This undisposed-of 
interest that remains in A. after the creation in B. of what is technical- 
ly called the particular estate, is the reversion. It is to be noted that it 
is not created by any act of A., but is merely the undisposed of resi- 
due of his estate. If B.'s estate is for years, instead of for life or in 
fail, the same general relation is created; but, since B.'s interest is now 
a nonfreehold interest, A.'s interest is not technically a reversion, 
although the term is frequently used somewhat loosely to cover this 
case. The same general situation may exist, even though A. does not 
have a fee sintple. Thus, a person who has a life estate may carve out 
of it a smaller estate in another person for years, and the interest thus 
left in the tenant for life may again loosely be described as a reversion. 

Suppose A., owning in fee, conveys the land to B. for life, and 
after B.'s death to go to C. for life. Several questions may arise in 
connection with a conveyance of this sort. First, as to how this con- 
veyance would be made. A. would make a livery of seisin to B. for 
his life, which would operate to put the seisin in B., at the same time 
declaring by his charter of feoffment or otherwise the extent of the 
interests that B. and C. respectively were to have in the land. Then, 
after B.'s death, the seisin would pass to C. for life, and after C.'s death 
would revert to A. The passage of the seisin from B. to C. is not a 
violation of the doctrine that there can he no livery of seisin to begin in 
futuro, because of the fact that the seisin is put out of A. once for all 
for the entire set of limitations at the time of the original livery to B. 
Notice the dift'erence between C.'s interest in this case, and A.'s rever- 
sionary interest. C.'s interest, like B.'s is created by the act of A., and 



Sec. 2) . REVERSIOxNS AND REMAINDERS 39 

js^otjrnerely an undisposed-of residue of the estate of the original 
creator. C.'s interest is what is technically called a remaind er. 

The principle illustrated by the case just given is capable of many 
applications. For example. A., owning in fee, may enfeoff B. for life, 
remainder to C. for life, remainder to D. in tail. In this case, as in 
the one just cited, C. and D. have remainders, and back of them is a 
reversion in fee in A. It is to be noticed that the particular tenant and 
the remaindermen have no relation of tenure between themselves. 
They all derive their title from A., and all stand in a relation of tenure 
to him. If now, A. by a later conveyance transfers his reversion to X., 
X. is not a remainderman, but an assignee of the reversion, and now oc- 
cupies the same tenure relation toward B., C, and D. that was formerly 
occupied by A. A. may also execute this series of limitations : To B. 
for life, remainder to C. for life, remainder to D. in fee. This will 
dispose of all of A.'s interest in the land, since he can give no greater 
estate than a fee. This is expressed in the doctrine that there can be 
no rem ainder after a remainder in fee. Another consequence of creat- 
ing the remainder in fee in D. is that, since A. has now disposed of all 
his interest in the land, there can be no tenure between him and B., 
C, and D. It is equally clear, however, that B., C, and D. have no 
tenure relation between themselves. Quia Emptores applies in this 
case, with the result that all three of them hold under A.'s overlord. 

In all the cases hitherto discussed the estate of the remainderman 
was of such a sort that, whenever the preceding estate terminated, the 
estate in remainder was ready to take up the seisin. It is true, of 
course, that in the Hmitation last given C, the tenant for life, may die 
before B. dies. ■ If that happens, it merely means that on the death of 
B. the seisin will pass to D. The fact that D. himself may have died 
before B. is immaterial, since his estate is one of inheritance, and his 
right to the seisin will pass to his heir. We now, however, have to 
consider a different species of remainder. Suppose that A., being 
seised in fee, enfeoffs B. for life, remainder to C. for life if C. shall 
pay A. £100. The feudal rule requiring that the seisin should always 
be vested in some definite person is satisfied, at least for the time being, 
since B. has a freehold estate. This case, however, differs from those 
hitherto considered, in that in the present case it is impossible, at the 
time of the creation of these limitations, to say where the seisin will 
go upon B.'s death. It may or may not go to C, depending upon 
whether he has or has not paid the ilOO. The remainder to C. in this 
case is what is technically called a contingent remainder, as contrasted 
with the vested remainders in the limitations hitherto given. Under 
the older law contingent remainders were not recognized. By the 15th 
century, however, the possibility of creating them, subject to certain 
limitations now to be discussed, was definitely established. If, there- 
fore, in the example given, C. shall pay the ilOO. at or before the ter- 
mination of B.'s life estate, the seisin will, upon the termination of such 



40 NONPOSSESSOEY INTERESTS IN LAND (Ch. 3 

life estate, pass to C. If C. has not paid, the seisin will revert to A. or 
to A.'s heirs. The general principle is that a contingent remainder is 
good, if it becomes vested at or before tlie termination of the precJcF" 
"ing estate. If, in the illustration given, the contingent remainder in 
TThad been followed by a remainder to D., and C. had not satisfied the 
contingency at or before the termination of B.'s estate, the seisin 
would then have passed to the next vested estate in remainder, that is, 
D.'s, and C.'s contingent remainder would have been destroyed. The 
same result follows if, through the nonperformance of the contingency, 
the seisin reverts to A. , 

There are various kinds of contingent remainders. Mr. Fearne, 
in his work on Contingent Remainders,^ divides them as follows : 

"1. Where the remainder depends entirely on a contingent determi- 
nation of the preceding estate itself — 

"As if A. makes a feoffment to the use of B. till C. returns from 
Rome, and after such return of C. then to remain over in fee ; here the 
particular estate is limited to determine on the return of C, and only 
on that determination of it is the remainder to take effect; but that is 
an event which possibly may never happen, and therefore the remain- 
der, which depends entirely upon the ^determination of the preceding 
estate by it, is dubious and contingent. So where a fine was levied to 
the use of A. and the heirs male of his body, until he, the said A., 
should do such a thing, and after such a thing done by the said A. to 
the use of B. in tail: A. died without issue, and without performing 
the condition; and it was adjudged the remainder was contingent, and 
never took place. 

"2. Where some uncertain event, unconnected with and collateral 
to the determination of the preceding estate, is, by the nature of the 
limitation, to precede the remainder-rr 

"As if a lease be made to A. for life, remainder to B. for life, and if 
B. die before A. to C. for life ; here the event of B.'s dying before A. 
does not in the least affect the determination of the particular estate, 
nevertheless it must precede and give effect to C.'s remainder ; but such 
event is dubious, it may or may not happen, and the remainder depend- 
ing on it is therefore contingent. So if lands be given to A. in tail, and, 
if B. come to Westminster Hall such a day, to B. in fee ; here B.'s com- 
ing to Westminster Hall has no connection with the determination of 
A.'s estate; but as it is an uncertain event, and the remainder to B. is 
not to take place unless it should happen, such remainder is there- 
fore a contingent remainder. 

"3. Where a remainder is limited to take effect upon an event, 
which, though it certainly must happen some time or other yet may not 
happen till after the determination of the particular estate — 

"As if a lease be made to J. S. for life, and after the death of J. D. 
the lands to remain to another in fee ; now it is certain that J. D. must 

2 10th Ed., pp. 8 to 9. 



Sec. 2) REVERSIONS AND REMAINDERS 41 

die some time or other, but his death may not happen till after the de- 
termination of the particular estate by the death of J. S., and therefore 
such remainder is contingent. So in case of a lease for life to A., 
and after the death of A. and M., the remainder to B. in fee, this is 
a contingent remainder; for the particular estate being only for the 
life of A., and the remainder not to commence till after the death of 
A. and M., if A. die before M., the particular estate will end before 
the remainder can commence; which is very possible, and therefore 
such remainder is contingent. So if a feoffment be to the use of A. 
for 21 years if he shall so long live, and after his death to the use of B. 
in fee ; here A. may survive the 21 years ; if he should, the particular 
estate would determine before the remainder could commence, and 
therefore such remainder is contingent, and, being so, is void, for want 
of a preceding freehold to support it, as will appear hereafter. 

"4. Where a remainder is limited to a person not ascertained, or not 
in being at the time when such limitation is made — 

"As if a lease be made to one for life, remainder to the right heirs 
of J. S. ; now there can be no such person as the right heir of J. S., un- 
til the death of J. S. (for nemo est hseres viventis), which may not bap- 
pen till after the determination of the particular estate by the death 
of tenant for life, therefore such remainder is contingent. So where 
a remainder is limited to the first son of B., who has no son then born ; 
here B, may never have a son, or, if he should, the particular estate 
may determine before the birth of such son, therefore this estate is 
contingent. So if an estate be limited to two for life, remainder to the 
survivor of them in fee, the remainder is contingent, for it is uncer- 
tain who will be the survivor." 

These illustrations are given merely as indicating the various pos- 
sibilities in the creation of these estates. 

A., being seised in fee, conveys to B., for ten years, remainder to 
C. in fee if C. pays A. ilOO. This remainder is intrinsically bad. The 
seisin cannot be in B., for the reason that he has a nonfreehold estate. 
It cannot be in C, because he is not yet entitled to it. To say that when 
C. pays the ilOO. the seisin then passes to him is to violate the com- 
mon-law doctrine that there cannot be a livery of seisin operating in 
futuro. The principle exemplified in this case is embodied in the doc- 
mne that a contingent remainder is bad unless supported by a preced- 
ing vested estate of freehold. 

A., being seised in fee, enfeoffs B. for life and one year after B.'s 
death to C. in fee. This limitation to C. is also intrinsically bad. Up- 
on the death of B., the seisin cannot go to C, for such is not the lim- 
itation. It must therefore revert to A., and, once being back in A., it 
cannot thereafter be taken out of him, except by a new conveyance, 
for the reason already stated. 

It has already been mentioned that it was necessary that a contin- 
gent remainder should vest at or before the termination of the pre- 



42 NONPOSSESSORY INTERESTS IN LAND (Ch. 3 

ceding estate, and that if it did not do so by that time it was irretriev- 
ably lost. Thus, if A. was a tenant for life, with a contingent remain- 
der to B. for life, it would be sufficient if B. satisfied the contingency at 
or before A.'s death. At common law it was possible that A.'s estate 
might terminate before the death of A., if A. engaged in a course of 
action that forfeited his estate, as for example, enfeoffing X. of the land 
in fee. Since this was in violation of A.'s feudal obligations with re- 
spect to the land, it resulted in destroying whatever estate he had, with 
the consequence that the next estate must then take the seisin and be 
ready to assume the burdens of feudal tenure. If B.'s estate had not at 
that time become vested by the performance of the contingency, it 
would drop out, the seisin would pass to the next vested estate of 
freehold, and B.'s estate be destroyed. Contingent remainders might 
also be lost in ways other than by the destruction of the particular 
estate. These other methods will be considered in a later connection. 

This easy destructibility of contingent remainders led to a device to 
preserve them for the benefit of the contingent remainderman, by pro- 
viding that after the termination of the tenancy for life for any reason 
the seisin should go to certain specified persons, their heirs and assigns, 
as trustees for the life of the tenant for life and for his benefit. These 
persons, being specified and their estate being therefore ready to come 
into possession on any termination of the particular estate, l2ad_a vest- 
ed remainder. Consequently, if the tenant for life forfeited or other- 
wise terminated his estate, the vested remainder in the trustees for 
the life of the tenant for life would then come in. By thus interpos- 
ing another vested estate until the termination of the natural life of 
the tenant for life, a further chance was given for the contingent re- 
mainderman either to come into being or to satisfy the contingency 
upon which his estate depended, if he was already in being. Of course 
it would have been possible for the trustees, acting in collusion with 
the next vested remainderman, to destroy the contingent remainder; 
but they were prevented from doing this by the orders of the Chan- 
cellor. By later legislation contingent remainders were made indestruct- 
ible, and consequently tlie need for trustees to preserve contingent 
remainders was done away with.' 

3 On reversions and remainders see 2 Bl. op. cit. 163-176 ; Challis, op. cit. 
72-85, 119-151 ; Digbv, op. cit. 262-275 ; Leake, op. cit. 226-246 ; Williams, op. 
cit. 323-365. 



Sec. 3) CONDITIONAL LIMITATIONS AND RIGHTS OF ENTBT 43 



SECTION 3.— CONDITIONAL LIMITATIONS AND RIGHTS 

OF ENTRY 



The next type of nonpossessory interest in land that requires con- 
sideration may be illustrated by the two following limitations : A., be- 
ing seised in fee, enfeoffs B. to hold for B.'s life or until C. pays A. 
ilOO., and thereupon to C. in fee; A., being seised in fee, enfeoffs B. 
for life, subject to the condition that, if C. pays A. ilOO., then C. may 
enter and terminate the estate of B. The limitation to C. contained in 
the first illustration is good. B. has a life estate ; that is, an estate of 
uncertain duration, that may terminate in one of two ways, either by 
his death, or by the payment of the £100. The proviso for the termina- 
tion of his estate in favor of C. by the payment of the ilOO. is a con- 
di tional limitation, and C.'s estate is an ordinary remainder. The lim- 
itation given to C. in the second illustration is bad. It is not couched 
as a conditional limitation upon B.'s estate; that is, B.'s estate does not 
automatically come to an end upon the payment of the ilOO. What 
is attempted is to give C. the power to terminate B.'s estate after C. has 
paid the £100 to A. This power on C.'s part is what is technically 
known as a_ri^ht of entry. A right of entry was not regarded under 
the common law as being in the nature of an estate in the land. It was 
regarded as a personal right or power, and in the type of right of entry 
that is now being considered it could exist only in the person creating 
the estate with respect to which the power was created, or in his 
heirs. It could not be assigned, even as a part of the reversion back 
of the particular estate which was made subject to the right of entry. 
In general, the question as to whether a given phrase is to be regarded 
as a conditional limitation or as a condition with power of entry is one 
of the intent of the parties rather than of the exact language used ; the 
general tendency is to treat it, if possible, as a conditional limitation. 
The doctrine of the common law with respect to conditions was changed 
as regards .certain classes of leases in the tim€ of Henry VIII (32 
Hen. VIII, c. 34), and it has been changed by statute in similar cases 
in all of the states in this country as well.* 

* On conditional limitations and rights of entry see Co. Lit. 214a-21.5b ; 
Challis, op. cit. 219, 253; Lealfe, op. cit. 161-175. 



44 NO>:rossESSOEY interests in land (Ch. 3 

SECTION 4.— INCORPOREAL HEREDITAMENTS 



We pass, now, to the other group of incorporeal interests. Black- 
stone enumerates ten so-called incorporeal hereditaments, namely, ad- 
vowsons, tithes, commons, ways, offices, dignities, franchises, corodies, 
annuities, and rents. Of tjiese'the only ones that possess importance 
for our present purposes are commons, ways, and rents. All three 
of these found their origin in the feudal system, and the first two 
probably go back to the ante-Conquest days, when the manor was in 
its formative stage. Common was the right of pasturage that the ten- 
ants of the manor had upon the waste lands of the manor, and is one 
species of the broader group of rights known as profits. A profit may^ 
be defined as the right which one person has to take some substance 
from the soil of another without being entitled to the possession of 
the soil from which the substance is taken. A_way is one species of the 
broader group of rights known as easements, which may be defined 
as the right to make a limited specified use of the land of another 
without taking any of the substance therefrom or having [>ossession 
thereof. Rent was the return reserved by the grantor of land from the 
grantee thereof.® 



SECTION 5.— CONVEYANCE OF INCORPOREAL INTEREST 



If A. has the reversion of a piece of land in fee, subject to an es- 
tate in B. for years or for hfe or in tail, and A. wishes to convey his 
reversionary interest to C, how is this to be done ? Clearly under these 
circumstances A. cannot give C. livery of seisin. To attempt to do so 
would result in an illegal disturbance of B/s interest in the land. 
Whether B.'s interest be for life or in tail, which would give him a 
seisin, or whether his interest be for years, which would give him 
technically only a possession, any attempt by A. to take C. to the land 
and go through the formality of livery would be an ouster of B. and 
a disturbance of his legal rights. So, also, if B. is tenant for life 
and C. has a remainder for life, which he wishes to convey to D., it 
is equally impossible for C. to give livery of seisin. The same difficulty 
arises if A., the owner of land, wishes to create in B. an easement 
or a profit or a right to a rent. Thes? all, being incorporeal — that is 
to say, nonpossessory — interests, cannot be created by a method the 
essence of which is a dealing witli the physical possession of the land. 

6 On incorporeal hereditaments see 2 Bl. op. ciL ch. Ill ; Digby, op. cit 
181-210. 



Sec. 5) CONVKYANCE OF INCORPOREAL INTEREST 45 

It is in this type of case that we encounter the second main method 
of conveyancing known to the common law ; that is to say, hy deed, 
a formal instrument sealed and delivered by the grantor to the gran- 
tee, describing the interest to be conveyed to the grantee. Conveyance 
by deed was used in all cases at common law where conveyance by liv- 
ery was impossible, owing to the nature of the right to be conveyed. 
Hence the common-law adage that corporeal interests lie in livery and 
incorporeal interests lie in grant. 

In the case where the incorporeal interest to be conveyed was a 
reversion or remainder, another essential step to complete the con- 
veyance was the assent of the particular tenant to the transfer of the 
reversionary or remainder interest to the grantee. This was known as 
the attornment by the tenant. It consisted of a formal acknowledg- 
ment by him of the transfer, and a recognition that the right so trans- 
ferred was vested in the grantee. The reason for requiring the attorn- 
ment of the tenant that is ordinarily given is that in the feudal sys- 
tem the relation of lord and tenant was so personal that it was regarded 
as unfair to the tenant that his lord should be changed, save by his con- 
sent. That this cannot be the sole reason for the requirement is mani- 
fest from the fact that attornment was also necessary in the case of 
the transfer of a remainder, although in that situation there is, of 
course, no relation of tenure between the particular tenant and the 
remainderman. It has been suggested that another explanation for the 
doctrine of attornment is that the incorporeal interest transferred was 
regarded as having one end localized in the soil, and that consequently 
this transfer could not be made except, as the tenant permitted it by 
his formal consent.^ 

This doctrine of attornment on the part of the tenant vvas done away 
with by statute in the time of Anne. The statute provides as follows : 

St. 4 Anne (1705) c. 16, § 9: "And be it further enacted by the au- 
thority aforesaid, That from and after the said first day of Trinity 
term (1706), all grants or conveyances thereafter to be made, by fine 
or otherwise, of any manors or rents, or of the reversion or remainder 
of any messuages or lands, shall be good and efl^ectual, to all intents 
and purposes, without any attornment of the tenants of any such 
manors, or of the land out of which such rent shall be issuing, or of the 
particular tenants upon whose particular estates any such reversions 
or remainders shall and may be expectant or depending, as if their at- 
tornment had been had and made." 

This same statute has in substance been re-enacted in many states 
in this country. In those states where it has not been formally re-en- 
acted, the courts would doubtless hold that the idea of attornment 
was so foreign to present policy as to have no p lacq ii^ p y law/ 

e See 1 Maitland, Coll. Pap. 374-379. 

T On grant and attornment see 2 Bl. op. cit. 317; Co. Lit. 309a-310a, 315l>- 
316b ; Digby, op. clt. 260-262 ; Leake, op. cit. 37-38. 



46 NONPOSSESSOEY INTERESTS IN LAND (Ch. 3 

SECTION 6.— OTHER SPECIES OF CONVEYANCES 



The more important methods of conveyancing, viz., the feoffment 
for freehold, and the lease for nonfreehold, possessory interests, and 
the deed for nonpossessory interests, have already been discussed. In 
addition to these conveyances, there are certain others that require 
mention. 

The release is a special form of conveyance by deed. It could be 
given only by a person out of possession of land to a person in posses- 
sion. There were four kinds of releases : 

1. Per mitter le droit. This was the form of release that was ex- 
ecuted by the disseisee of lands to the one who had disseised him, the 
result being to pass to the disseisor in possession the rights that the 
disseisee still retained. 

2. Per mitter Testate. This was the form of release that was execut- 
ed by one joint tenant or coparcener to another. 

3. Per enlarger Testate. This release was the form used by a re- 
versioner or remainderman in conveying his interest to the tenant of a 
particular estate. 

4. Per extinguishment. This was the form of release used by the 
holder of an incorporeal hereditament, such as a rent' or easement, to 
release to the owner of the land the right to the rent or the ease- 
ment. 

A release per enlarger, in connection with a lease of the land in 
question, was sometimes used as a method of conveying in fee simple, 
instead of a feoffment. Thus, A. would execute a lease of the premises 
to B. fpr one year, and B. would go into possession, whereupon A. 
would execute to him a release, which would operate, of course, to 
vest a fee simple in B.^ 

Surrender is just the reverse of release; the surrender being a giving 
up by the holder of the estate in possession to the next vested estate 
in reversion or remainder. No livery of seisin or deed was necessary. 
The mere expression of the giving up by the particular tenant to the re- 
mainderman or the reversioner and the acceptance by the latter was 
sufficient to operate as a surrender of the particular estate. There 
could not be a technical surrender, except where the legally smaller es- 
tate was surrendered to the larger estate. Thus a tenant for life in 
possession could not technically surrender to a remainderman having 
an estate for years, irrespective of the length of the term. On the 
other hand, a tenant for 100 years in possession could surrender to a 
remainderman for Hfe, and A., a tenant for life in possession, could 

8 On release see 2 Bl. op. cit. 324; Littleton, §§ 444-447, 449^51, 459-4(31, 
46;>-471, 479-480. 



Sec. 6) OTHER SPECIES OF CONVEYANCES 47 

surrender to B., a remainderman for life,. for the reason that A.'s estate 
was from B.'s point of view an estate d'autre vie, and an estate d'autre 
vie was an estate legally smaller than an estate for one's own life. 

Closely associated with the doctrine of surrender is the doctrine of 
jnerger. In the event of a surrender by the particular tenant to the re- 
mainderman or reversioner, the surrenderee did not thereupon have two 
estates. The smaller, or surrendered, estate was held to be lost or 
merged in the larger estate of the surrenderee. This result was due to 
the common-law rule that it was legally impossible for a man, except in 
a few cases, to have at the same time in himself two separate and imme- 
diate estates. If between the estate of the tenant for life in possession 
and the estate of the remainderman or reversioner there was an out- 
standing vested estate in another remainderman, then there could tech- 
nically be no surrender. The conveyance would have to be by livery or 
other corresponding methods, and for the same reason there would be 
no merger of estates in the one to whom the conveyance was made. 

If the outstanding interest was merely a contingent remainder, this 
would not be regarded as sufficient to prevent the doctrine of merger 
from applying, and the necessary result would be that the contingent 
remainder would be destroyed. This destruction of a contingent re- 
mainder followed in any case where the particular estate was convey- 
ed to the person who had the next vested estate in remainder, whether 
by surrender or release or otherwise. This rule of t*he common law has 
now been largely changed by statute, and the contingent remainder 
preserved from destruction by this method.® 

Mention has already been made of the fictitious lawsuits known 
as the fine and the common recovery in discussing the barring of estates 
tail. These two fictitious lawsuits were also used as regular methods 
of conveying interests in land during the older period of English law. 
They had the advantage of publicity, and of establishing a permanent 
record as to the state of the title. 

Another common-law method of conveyance of limited use was the 
method of exchange. This could be utilized only where the estates to 
be exchanged were equal. Neither delivery nor deed was required. It 
was enough if the possession of the exchanged pieces was taken during 
the life of the two persons making the exchange. By the statute of 
frauds, if the estates so exchanged were of more than three years' dura- 
tion, the exchange must be in writing. 

The principles of the feudal law did not admit the power of the hold- 
er of land to transmit it by will. As has already been pointed out, the 
first tendency was to cause the land to go to the heir of the original 
donee under the terms of the original gift from the overlord. When it 
became established that the first grantee took a fee simple, the land 
would nevertheless go to the heir, unless disposed of by the ancestor in 

» On surrender and merger see 2 Bl. op. cit. 326 ; Co. Lit. 337b ; Challls, 
op. cit. 136; Fearne, Couting. Reins. 340-343; Leakp. op. cit. 238. 239. 



48 NONPOSSESSORY INTERESTS IN LAND (Ch. 3 

his lifetime. The right to leave by will existed in the case of gavel- 
kind land and in some of the English boroughs. 

This common-law rule was changed by statute in the reign of Henry 
VIII. By 32 Hen. VIII, chs. 1 and 35, and 35 Hen. VIII, ch. 5, the 
power was given to devise all lands held in socage tenure and two- 
thirds of the land held in knight service. When by the 12 Car. II, ch. 
24, all land was declared to be held in socage, it thereby automatically 
became devisable. 



-^2^/t^r 




InX- 



-..y^ 






/virt.-'V'l-^ , 



r •^' -'■^M^'OL''^ 






..,,J A 



Ch, 4) JOINT OWNERSHIP 49 

CHAPTER IV 
JOINT OWNERSHIP 



Up to the present, as a matter of convenience, questions of the es- 
tates in land have been considered as though the estates were owned by 
a single individual. Such, however, was not necessarily the case under 
English law. All rights, whether corporeal or incorporeal, might be 
owned either by a single person or by two or more persons. There 
were several species of ownership of this nature. They are described 
by Blackstone as follows : ^ 

"An estate in joint tenan cy is where lands or tenements are granted 
to two or more persons to hold in fee simple, fee tail, for life^ for 
years, or at will. In consequence of such grants an estate is called 
an estate in joint tenancy, and sometimes an estate in jointure, which 
word as well as the other signifies an union or co njunction of inter- 
est; though in common speech the term jointure is now usually con- 
fined to that joint estate, which by virtue of Statute 27 Hen. VIII, 
c. 10, is frequently vested in the husband and wife before marriage, 
as a full satisfaction and bar of the woman's dower. 

"In unfolding this title, and the two remaining ones, in the present 
chapter, we will first inquire how these estates may be created; next, 
their properties and respective incidents ; and lastly, how they may 
be severed or destroyed. 

"1. The creation of an estate in joint tenancy depends on the word- 
ing of the deed or devise, by which the tenants claim title; for this 
estate can only arise by purchase or grant, that is, by act of the par- 
ties, and never by the mere act of law. Now, if an estate be given 
to a plurality of persons, without adding any restrictive, exclusive, or 
explanatory words, as if an estate be granted to A. and B. and their 
heirs, this makes them immediately joint tenants in fee of the lands. 
For the law interprets the grant so as to make all parts of it take 
efifect, which can only be done by creating an equal estate in them 
both. As therefore the grantor has thus united their names, the 
law gives them a thorough union in all other respects. For, 

"2. The properties of a joint estate are derived from its unity, which 
is fourfold : The tmity of interest, the unity of title, the unity of 
time, and the unity of possession ; or in other words, joint tenants 
have one and the same interest, accruing by one and the same convey- 
ance, commencing at one and the same time, and held by one and the 
same undivided possession. 

12 Com. 180 et seq. 
Big. Int. — 4 

/ / 



50 JOINT OWNERSHIP (Ch. 4 

"First, they must have one and the same interest. One joint ten- 
ant cannot be entitled to one period of duration or quantity or in- 
terest in lands, and the other to a different; one cannot be tenant 
for life, and the other for years ; one cannot be tenant in fee, and 
the other in tail. But if land be limited to A. and B. for their lives, 
this makes them joint tenants of the freehold; if to A. and B. and 
their heirs, it makes them joint tenants of the inheritance. If the 
land be granted to A. and B. for their lives, and to the heirs of A., 
here A. and B. are joint tenants of the freehold during their re- 
spective lives, and A. has the remainder of the fee in severalty: or 
if land be given to A. and B., and the heirs of the body of A., here 
both have a joint estate for life, and A. hath a several remainder in 
tail. 

"Secondly, joint tenants must also have an unity of title; their es- 
tate must be created by one and the same act, whether legal or illegal ; 
as by one and the same grant, or by one and the same disseisin. Joint 
tenancy cannot arise by descent or act of law ; but merely by purchase 
or acquisition by the act of the party : and unless that act be one and 
the same, the two tenants would have different titles ; and if they 
had different titles, one might prove good and the other bad, which 
would absolutely destroy the jointure. 

"Thirdly, there must also be an unijty of tlrne; their estates must 
be vested at one and the same period, as well as by one and the same 
title. As in case of a present estate made to A. and B., or a re- 
mainder in fee to A. and B. after a particular estate; in either case 
A. and B. are joint tenants of this present estate, or this vested re- 
mainder. But if, after a lease for life, the remainder be limited to 
the heirs of A. and B., and during the continuance of the particular 
estate A. dies, which vests the remainder of one moiety in his heir; 
and then B. dies, whereby the other moiety becomes vested in the 
heir of B. : now A.'s heir and B.'s heir are not joint tenants of this 
remainder, but tenants in common; for one moiety vested at one 
time, and the other moiety vested at another. ♦ * * 

"Lastly, in joint tenancy there must be unity of possession. Joint 
tenants are said to be seised per my et per tout, by the half or moiety, 
and by all; that is, they each of them have the entire possession, as 
well of every parcel as of the whole. They have not, one of them a 
seisin of one-half or moiety, and the other of the other moiety; 
neither can one be exclusively seised of one acre, and his companion 
of another; but each has an undivided moiety of the whole, and not 
the whole of an undivided moiety. * * * 

"Upon these principles, of a thorough and intimate union of in- 
terest and possession, depend many other consequences and incidents 
of the joint tenant's estate. If two joint tenants let a verbal lease of 
their land, reserving rent to be paid to one of them, it shall enure 
to both, in respect of the joint reversion. If their lessee surrenders 
his lease to one of them, it shall also enure to both, because of the 



Ch. 4) JOINT OWNERSHIP 51 

privity or relation of their estate. On the same reason, livery of 
seisin, made to one joint tenant, shall enure to both of them: and 
the entry, or re-entry, of one joint tenant is as effectual in law as 
if it were the act of both. In all actions also relating to their joint 
estate, one joint tenant cannot sue or be sued without joining the 
other. * * * Upon the same ground it is held, that one joint ten- 
ant cannot have an action against another for trespass, in respect 
of his land; for each has an equal right to enter on any part of it. 
But one joint tenant is not capable by himself to do any act which 
may tend to defeat or injure the estate of the other; as to let leases, 
or to grant copyholds: and if any waste be done, which tends to the 
destruction of the inheritance, one joint tenant may have an action of 
waste a gainst the other, by construction of the Statute Westm. II, c. 
2T. So, too, though at common law no action of account lay for one 
joint tenant against another, unless he had constituted him his bailiff 
or receiver, yet now by the Statute 4 Anne, c. 16, joint tenants may 
have actions of account against each other, for receiving more than 
their due share of the profits of the tenements held in joint tenancy. 

"From the same principle also arises the remaining grand incident 
of joint estates ; viz. : The doctrine of survivorship, by v/hich when 
two or more persons are seised of a joint estate, or inheritance, for 
their own lives, or pur auter vie, or are jointly possessed of any 
chattel interest, the entire tenancy, upon the decease of any of them 
remains to the survivors, and at length to the last survivor ; and he 
shall be entitled to the whole estate, whatever it be, whether an in- 
heritance or a common freehold only, or even a less estate. This 
is the natural and regular consequence of the union and entirety of 
their interest. The interest of two joint tenants is not only equal or 
similar, but also is one and the same. One has not originally a dis- 
tinct moiety from the other; but, if by any subsequent act (as by 
alienation or forfeiture of either) the interest becomes separate and 
distinct, the joint tenancy instantly ceases. But, while it continues, 
each_ol tw^jpint tenants has a concurrent interest in the whole ; and 
therefore, oh the death of his companion, the_sole interest in the 
whole remains to the survivor. For the interest which the survivor 
originally had is clearly not divested by the death of his companion ; 
and no other person can now claim to have a joint estate with him, 
for no one can now have an interest in the whole, accruing by the 
same title, and taking effect at the same time with his own ; neither 
can any one claim a separate interest in any part of the tenements; 
for that would be to deprive the survivor of the right which he has 
in all, and every part. As therefore the survivor's original interest 
must now be entire and several, and that he shall alone be entitled 
to the whole estate (whatever it be) that was created by the original 
grant. 

■'This right of survivorship is called by our ancient authors the jus 
accrescendi, because the right upon the death of one joint tenant ac- 



52 JOINT OWNERSHIP (Ch, 4 

cumulates and Increases to the survivors; or, as they themselves ex- 
press it; 'Pars ilia communis accrescit superstitibus, de persona in 
personam, usque ad ultimam superstitem.' And this jus accrescendi 
ought to be mutual ; which I apprehend to be one reason why neither 
the king, nor any corporation, can be a joint tenant with a private 
person. For here is no mutuality ; the private person has not even 
the remotest chance of being seised of the entirety, by benefit of sur- 
vivorship; for the king and the corporation can never die. 

"3. We are, lastly, to inquire how an estate in joint tenancy may be 
severed and destroyed. And this may be done by destroying any _ of 
its constituent unities: 1. That of time, which respects only the 
original commencement of the joint estate, cannot indeed (being now 
past) be affected by any subsequent transactions. But, 2. The joint 
tenants' estate may be destroyed, without any alienation, by merely 
disuniting their possession. For joint tenants being seised per my 
et per tout, every thing that tends to narrow that interest, so that they 
shall not be seised throughout every part, is a severance or destruction 
of the jointure. And therefore, if two joint tenants agree to part 
their lands, and hold them in severalty, they are no longer joint ten- 
ants : for they have now no joint interest in tlie whole, but only a sev- 
eral interest respectively in the several parts. And for that reason, 
also, the right of survivorship is by such separation destroyed: By 
common law all the joint tenants might agree to make partition of 
the lands, but one of them could not compel the other so to do; for 
this being an estate originally created by the act and agreement of the 
parties, the law would not permit any one or more of them to de- 
stroy the united possession without a similar universal consent. But 
now by the Statutes 31 Hen. VIII, c. 1, and 32 Hen. VIII, c. 32, 
joint tenants, either of inheritances or other less estates, are com- 
pellable, by writ of partition to divide their lands. 3. The jointure 
may be destroyed by destroying the unity of title. As if one joint 
tenant ahenes and conveys his estate to a third person: here the joint 
tenancy is severed, and turned into tenancy in common; for the gran- 
tee and the remaining joint tenant hold by different titles (one de- 
rived from the original, the other from the subsequent grantor), 
though, till partition made, the unity of possession continues. But 
a devise of one's share by will is no severance of the jointure: for 
no testament takes effect till after the death of the testator, and by 
such death the right of the survivor (which accrued at the original 
creation of the estate, and has therefore a priority to the other) is 
already vested. 4. It may also be destroyed by destroying the unity 
of interest. And therefore, if there be two joint tenants for life, 
and the inheritance is' purchased by or descends upon either, it is a 
severance of the jointure; though, if an estate is originally limited 
to two for life, and after to the heirs of one of them, the freehold 
1 shall remain in jointure, without merging in the inheritance; be- 
cause, being created by one and the same conveyance, they are not 



Ch. 4) JOINT OWNERSHIP 53 

separate estates (which is requisite in order to a merger), but branches 
of one entire estate. In like manner, if a joint tenant in fee makes 
a lease for life of his share, this defeats the jointure: for it destroys 
the unity both of title and of interest. And, whenever or by what- 
ever means the jointure ceases or is severed, the right of survivorship 
or~jus accrescendi, the same instant ceases with it^ Yet, if one of 
tlTrce joint tenants alienes his share, the two remaining tenants still 
hold their parts by joint tenancy and survivorship: and if one of 
three joint tenants release his share to one of his companions, though 
the joint tenancy is destroyed with regard to that part, yet the two re- 
maining parts are still held in jointure; for they still preserve their 
original constituent unities. But when, by any act or evenj, different 
interests are created in the several parts of the estate, or they are 
held by different titles, or if merely the possession is separated; so 
that the tenants have no longer these four indispensable properties, a 
sameness of interest, and undivided possession, a title vesting at one 
and the same time, and by one and the same act or grant ; the jointure 
is instantly dissolved. * * * 

"An estate held in coparcenary is where lands of inheritance de- ^-^z 
scend from the ancestor to two or more persons. It arises either by 
common law or particular custom. By common law : As where a 
person seised in fee simple or in fee tail dies, and his next heirs are 
two or more females, his daughters, sisters, aunts, cousins, or their 
representatives ; in this case they shall all inherit, as will be more 
fully shown when we treat of descents hereafter; and these co-heirs 
are then called coparceners ; or^ for brevity, parceners only. Parcen- 
ers by particular custom are where lands descend, as in gavelkind, to 
all the males in equal degree, as sons, brothers, yncles, &c. And in 
either of these cases, all the parceners put together make but one heir, 
and have but one estate among them. 

"The properties of parceners are in some respects like those of 
j^oint tenants; they having the same unities of interest, title and 
possession. They may sue and be sued jointly for matters relating 
to their own lands ; and the entry of one of them shall in some cases • 
enure as the entry of them all. They cannot have an action of tres- 
pass against each other; but herein they differ from joint tenants, 
that they are also excluded from maintaining an action of waste; 
for coparceners could at all times put a stop to any waste by writ of 
partition, but till the statute of Henry the Eighth, joint tenants had 
no such power. Parceners also differ materially from joint tenants 
in four other points: 1. They always claim by descent, whereas joint 
tenants always claim by purchase. Therefore, if two sisters pur- 
chase lands, to hold to them and their heirs, they are not parceners, 
but joint tenants; and hence it likewise follows thatjio lands can be 
held in coparcenary, but estates of inheritance, which are of a de- 
scendible~nature ; whereas not only estates in fee and in tail, but for 
life or years, may be held in joint tenancy. 2. There is not unity of 



t^ 



A 




54 JOINT OWNERSHIP (Ch. 4 

time necessary to an estate of coparcenary. For if a man hath two 
daughters, to whom his estate descends in coparcenary, and one dies 
before the other; the surviving daughter and the heir of the other, 
or when both are dead, their two heirs are still parceners; the es- 
tates vesting in each of them at different times, though it be the same 
quantity of interest and held by the same title. 3. Parceners, though 
they have a unity, have not an entirety of interest. They are prop- 
erly entitled each to the whole of a distinct moiety; and of course 
here is no jus accrescendi, or survivorship between them; for each 
part descends severally to their respective heirs, though the unity of 
possession continues. And as long as the lands continue in a course 
of descent,' and united in possession, so long are the tenants therein, 
whether male or female, called parceners. But if the possession be 
once severed by partition, they are no longer parceners, but tenants 
in severalty; or if one parcener alienes her share, though no parti- 
tion be made, then are the lands no longer held in coparcenary, but in 
common. 

"Parceners are so called, saith Littleton, because they may be con- 
strained to make partition. * * * 

"The estate in coparcenary may be dissolved, either by partition, 
which disunites the possession ; by alienation of one parcener, which 
disunites the title, and may disunite the interest; or by the whole at 
last descending to and vesting in one single person, which brings it to 
an estate in severalty. 

"Tenants in common are such as hold by several and distinct titles, 
but by unity of possession ; because none loioweth his own severalty, 
and therefore they all occupy promiscuously. This tenancy, there- 
fore, happens where there is a unity of possession merelVj but per- 
haps an entire disunion of interest, of title and of time. For if there 
be two tenants in common of lands, one may hold his part in fee 
simple, the other in tail, or for life; so that there is no necessary 
-unity of interest; one may hold by descent, the other by purchase-; 
or the one by purchase from A., the other by purchase frQm B. ; 
so that there is no unity of title ; one's estate may have been vested 
fifty years, the other's but yesterday; so that there is no unity of 
time. The only unity there is, is that of possession: and for this 
Littleton gives the true reason, because no man can certainly tell which 
part is his own ; otherwise even this would be soon destroyed. 

"Tenancy in common may be created, either by the destruction of 
the two other estates in joint tenancy and coparcenary, or by special 
limitation in a deed. By the destruction of the two other estates, I 
mean such destruction as does not sever the unity of possession, but 
only the unity of title or interest: As, if one of two joint tenants in 
fee alienes his estate for the life of the alienee, the alienee and the 
other joint tenant are tenants in common ; for they have not several 
titles, the other joint tenant by the original grant, the alienee by the 
new aHenation ; and they also have several interests, the former joint 



Ch. 4) JOINT OWNERSHIP 55 

tenant in fee simple, the alienee for his own life only. So, If one 
joint tenant gives his part to A. in tail, and the other gives his to B. 
in tail, the donees are tenants in common, as holding by different titles 
and conveyances. I'f one of two parceners alienes, the alienee and 
the remaining parcener are tenants in common; because they hold 
by different titles, the parcener by descent, the alienee by purchase. 
So likewise, if there be a grant to two men, or two women, and the 
heirs of their bodies, as might have been the case had the limita- 
tion been to a man and woman, and the heirs of their bodies begotten : 
and in this, and the like cases, their issue shall be tenants in common ; 
because they must claim by different titles, one as heir of A., and the 
other as heir of B. ; and those two not titles by purchase, but de- 
scent. In short, whenever an estate in joint tenancy or coparcenary 
is dissolved, so that there be no partition made, but the unity of pos- 
session continues, it is turned into a tenancy in common. 

"A tenancy in common may also be created by express limitation 
in a deed ; but here care must be taken not to insert words which im- 
ply a joint estate; and then if lands be given to two or more, and 
it be not joint tenancy, it must be a tenancy in common. But the law 
is apt in its constructions to favor joint tenancy rather than tenancy in 
common; because the divisible services issuing from the land (as 
rent, &c) are not divided, nor the entire services (as fealty) multiplied 
by joint tenancy, as they must necessarily be upon a tenancy in comr 
mon. Land given to two, to be holden the one moiety to one, and 
the other moiety to the other, is an estate in common; and, if one 
grants to another half of his land, the grantor and grantee are also 
tenants in common : because, as has been before observed, joint ten- 
ants do not take by distinct halves or moieties; and by such grants 
the division and severalty of the estate is so plainly expressed, that 
it is impossible they should take a joint interest in the whole of the 
tenements. But a devise to two persons to hold jointly and severally, 
is said to be a joint tenancy; because that is necessarily implied in 
the word 'jointly,' the word 'severally' perhaps only implying the 
power of partition; and an estate given to A. and B., equally to be 
divided between them, though in deeds it hath been said to be a joint 
tenancy for it implies no more than the law has annexed to that 
estate, viz., divisibility, yet in wills it is certainly a tenancy in com- 
mon, because the devisor may be presumed to have meant what is 
most beneficial to both the devisees, though his meaning is imper- 
fectly expressed. And this nicety in the wording of grants makes it 
the most usual as well as the safest way, when a tenancy in common 
is meant to be created, to add express words of exclusion as well as 
description, and limit the estate to A. and B., to hold as tenants in 
common, and not as joint tenants. 

"As to the incidents attending a tenancy in common: Tenants in 
common (like joint tenants) are compellable by the statutes of Henry 
VIiI and William III, before mentioned, to make partition of their 



56 JOINT OWNERSHIP (Ch. 4 

lands; which they were not at common law. They properly take 
, by distinct moieties, and have no entirety of interest ; and therefore 
there is no survivorship between tenants in conimpn. Their otlier in- 
cidents are such as merely arise from the unity of possession ; and 
are therefore the same as appertain to joint tenants merely upon that 
account; such as being liable to reciprocal actions of waste, and of 
account, by the statutes of Westm. II, c. 22, and 4 Anne, c. 16. * * * 

"Estates in common can only be dissolved in two ways: 1. By 
uniting all the titles and interests in one tenant, by purchase or other- 
wise; which brings the whole to one severalty. 2. By making par- 
tition between the several tenants in common, which gives them all 
respective severalties. For indeed tenancies in common differ in 
nothing from sole estates but merely in the blending and unity of pos- 
session, * ♦ * " 

Tenancy by entirety, is only incidentally mentioned by Blackstone, 
and then not under that name. It is a species of joint tenancy peculiar 
to the relation of husband and wife. It can be created only by a con- 
veyance and to persons who are at the time of the conveyance hus- 
band and wife. Any conveyance to husband and wife operates to 
vest in them a tenancy by the entirety, unless specified to be otherwise. 
The doctrine of survivorship obtains in tenancy by the entirety as in 
joint tenancy. It differs, in that it cannot be defeated by a convey- 
ance of either one of the tenants. A conveyance to the husband and 
wife and a third person operates to give the husband and wife one 
half the land as tenants by the entirety and to vest the other half in 
the third person as a joint tenant or tenant in common, according to 
the language of the conveyance. 

The rights which the husband had at common law to the control 
and disposition of his wife's real property during their joint lives 
should not be confused with the rights under tenancy by entirety. 
Thus if H. and W., husband and wife, are seised in fee as tenants by 
entirety, and H. conveys to X. in fee, X. may or may not get a fee 
simple. He has the privilege of enjoying the land during the joint 
life of H. and W. because of H.'s power of disposition over W.'s 
undivided interest during coverture. If H. survives W., the Avhole 
title will pass to him by the doctrine of survivorship, and he will be 
estopped to assert his title as against X., who will thus obtain an in- 
defeasible fee simple. On the other hand, should W. survive H., 
then, H.'s power of control being terminated, the doctrine of survivor- 
ship will put the whole fee in W. 

The right of marital control by a husband over his wife's real es- 
tate has been very largely abolished by rhodem statutes; and in m any 
states the doctrine of tenancy by entirety has_also been done away 
with. ~' " ^ 

Another form of joint ownership entirely unknown to the common 
law is that of community property. Under this species of ownership 
all property acquired by husband and wife by their own efforts dur- 



Ch. 4) JOINT OWNERSHIP 57 

ing marriage, as distinguished from gifts to either one of them, be- 
longs to them jointly. Ordinarily the husband is given the manage- 
ment of such property during marriage. On the death of either 
spouse, one half of the property goes to the heirs or devisees of the 
deceased spouse, and the other half to the surviving spouse.* 

2 On joint ownership see Digby, op. dt. 275-281 ; Lltt. §§ 241-248, 250, 2.'54. 
265, 277, 2S0, 281. 283, 285, 287, 288. 290-292, 294, 295, 298, 299, 302-304, 309, 
319, 321, 322; WUUams, op. cit. 134-141. 



58 DISSEISIN AND THE REMEDIES THEREFOR (Ch. 5 

CHAPTER V 
DISSEISIN AND THE REMEDIES THEREFOR 



The importance of the seisin of the land, the freehold possession of 
it, in the earlier law, has already been referred to. This doctrine of 
seisin remains to be considered from still another point of view, viz., 
as to the effect produced upon the rights of persons having an interest 
in land by a wrongful ouster or disseisin^ therefrom. 

Suppose that A. is seised of land in fee simple, and that B. wrong- 
fully enters upon him and puts him out. The effect of this act by 
B., technically called a disseisin, is to divest A. of the seisin of the 
land and to vest a tortious seisin in B. Or, again, suppose that A. 
has a reversion in fee, subject to a life estate in B., and B. wrong- 
fully enfeoft's X. in fee. This also operates as a disseisin of A. The 
same result follows if the tenant for hfe should enfeoff X. in tail. 
This would give X. a tortious seisin in tail, with a tortious reversion 
in fee in B., the tenant for life. The effect of a disseisin, if com- 
mitted against a tenant in fee, was necessarily to deprive him of all 

1 Beside disseisin in tlie narrow sense there are other ousters or dispos- 
sessions of land. Blaclvstone mentions the following: Abatement, intru- 
sion, discontinuance, deforcement. 

"An abatement is where a per.?on dies seised of an Inheritance, axid be- 
fore the heir or devisee enters, a stranger who has no right makes entry, 
and gets possession of the freehold ; this entry of him is called an abate- 
ment, and he himself is denominated an abator. • * • 

"Intrusion is the entry of a stranger, after a particular estate of free- 
hold is determined, before him in remainder or reversion. And it happens 
where a tenant for term of life dieth seised of certain lands and tenements, 
and a stranger entereth thereon, after such death of the tenant, and before 
any entry of him in remainder or reversion. This entry and interposition 
of the stranger differ from an abatement in this; that an abatement is al- 
ways to the prejudice of the heir, or immediate devisee; an intrusion is al- 
ways to the prejudice of him in remainder or reversion. * * • 

"Discontinuance happens when he who hath an estate tail maketh a 
larger estate of land than by law he is entitled to do, in which case the 
estate is good, so far as his power extends who made it, but no farther. 
As if a tenant in tail makes a feoffment in fee simple or for the life of the 
feoffee, or in tail ; all which are beyond his power to make, for that by the 
common law extends no farther than to make a lease for his own life ; in 
such case the entry of the feoffee is lawful during the life of the feoffor, 
but if he retains the possession after the death of the feoffor, it is an in- 
jury, which is termed a discontinuance: the ancient legal estate, which 
ought to have survived to the heir in tail, being gone, or at least suspend- 
ed, and for a while discontinued. • * * 

"Deforcement, in its most extensive sense, is nomen generalissimum ; a 
much larger and more comprehensive expression than any of the former: 
it then signifying the holding of any lands or tenements to which another 
person hath a right." 

3 Bl. Com. 167 et seq. 

See further, on the old law of disseisin. Challis, op. cit. 89, 91. 405; Leake, 
op. cit. 4()-i:;; 1 Maitland, op. cit. 407-^57; 2 Poll. & Mait. op. cit. 40-80. 



Ch. 5) DISSEISIN AND THE REMEDIES THEREFOB 59 

his interest in the land and to vest a tortious seisin in the disseisor, 
which might be divided into smaller tortious estates in the manner 
above indicated. A.'s interest was no longer an estate; after the 
disseisin, all he possessed was a right of entry or a right of action. 
These rights were peculiarly personal to himself. They could descend 
to his heir, but they could not be alienated. 

A.'s remedies after a disseisin of the sort above indicated were 
three : 

He had, first, the right of self-help. If within a short time after his 
disseisin (under the older law, apparently five days) he made a re- 
entry upon the disseisor, he might thereby successfully re-establish 
himself in the seisin of the land. At a later date this period was prob- 
ably somewhat lengthened, but it was always brief, and by the Stat- 
ute 3 Rich. II, ch. 8, it was provided that no entry should be made, 
even by disseisee,' if it involved a breach of the peace. If the cir- 
cumstances were such that A. could not safely make this re-entry up- 
on the land, he could keep alive his right of entry by making once a 
year as near the land as possible a definite assertion of his right there- 
to and a demand for the repossession thereof. This was known as 
keeping alive tlie right of entry by continual claim. Even under these 
circumstances, however, the right of entry was lost if the disseisor 
died in the wrongful seisin of the land, so that the wrongful seisin 
thereof descended to his heirs. In this case the right of entry was 
said to be tolled by descent cast. 

If the disseisee, for one reason or another, lost his right of entry, 
he was then driven to bring his action. Actions for the assertion of 
rights in land were of two sorts : Droitural and possessory. The 
purpose of the droitural action, as the name indicates, was to de- 
termine, as between the plaintiff and the defendant, who had the right 
to the land. The droitural actions, however, were very slow, very 
expensive, and gave a great advantage to the defendant, because of 
the mere fact that he was in the possession of the land with respect 
to which the action was being brought. Consequently in the reign 
of Henry II (1154-1189) the so-called possessory actions first made 
their appearance. The purpose of these actions was to determine, not 
the question of the ultimate right to the land, but who was entitled to 
the immediate possession thereof. That is to say, in the hypothetical 
case under discussion, if A. had lost his right of entry, his next 
step would be to bring a possessory action based upon the fact that 
he had been in possession of the land. In this action neither A. nor 
B. would be allowed to raise the question of the ultimate ownership of 
the land ; the only question that would be decided would be whether 
A. had been in the seisin of the land and B. had put him out with- 
out any judgment justifying B. in so doing. If so, A. would have 
judgment for a restoration to possession and for damages. After A. 
had been thus revested wnth the seisin of the land, B. might, as plain- 
tiff, litigate the question of who was really entitled to the land. The 



60 DISSEISIN AND THE REMEDIES THEREFOR (Ch. 5 

purpose and limited scope of this possessory action made it nec(»«'.sary 
that it should be brought within a short time after the disseisin com- 
plained of. The form of possessory action first devised was the 
novel disseisin; later other forms were invented to meet varying 
situations. 

If the plaintiff, A., delayed too long in the bringing of his posses- 
sory action, so that this method of procedure was no longer open 
to him, or if he was defeated in his possessory action through some 
technical reason, he would still be able to bring his droitural action. 
He would no longer be able to rely upon his right to immediate pos- 
session, but despite the fact that the defendant would have the 
benefit of the actual seisin of the land, the plaintiff would still have 
it open to him to show that he nevertheless had the better right to the 
land than the defendant, and if he ultimately succeeded in obtaining 
a judgment in the droitural action, he would then be restored to the 
land from which he had been disseised. 

By the beginning of the 17th century both the writs of entry and 
writs of right had become practically obsolete, and the action of 
ejectment, of which mention has been made in the discussion of lease- 
hold estates, had become the almost universal method of settling the 
right to both possession and title of land. The use of fictions by which 
this action was enlarged from its original narrow purpose is char- 
acteristic of the method by which the common-law judges accomplish- 
ed desirable results by the adoption of means that were originally 
intended for no such purpose. The development of the old action of 
quare ejecit into the modern action of ejectment is thus described:^ 

"As the plaintiff did not possess a freehold interest, his title to tlie 
lands was only so far acknowledged in this action [quare ejecit] as to 
give him damages for the injury he had sustained, but not to restore 
to him the possession of his term. * * * 

"Whilst the feudal system continued in its vigour, and estates for 
years retained their original character, but little inconvenience re- 
sulted to tenants from this imperfect remedy. But when the feudal 
policy declined, and agriculture became an object of legislative re- 
gard, the value and importance of estates of this nature considerably 
increased, and it was necessary to afford lessees for years a more 
effectual protection. It then became the practice for leaseholders, 
when disturbed in their possessions, to apply to courts of equity for 
redress, and to prosecute suits against the lessor himself, to obtain a 
specific performance of the grant, or against strangers for perpetual 
injunctions to quiet the possession; and these courts would then com- 
pel a restitution of the land itself to the party immediately injured. 

"The courts of common law soon afterwards adopted this method 
of rendering substantial justice; not indeed by the invention of a 
new writ, which perhaps would have been the best and most prudent 

sAclams, Ejectment (Sd Ed.) p. 8 et seq. 



Ch. 5) DISSEISIN AND THE REMEDIES THEREFOR 61 

method, but by adapting the one already in existence to the circum- 
stances of the times ; and introducing, in the prosecution of a writ 
of ejectment, a species of remedy neither warranted by the original 
writ, nor demanded by the declaration, namely, a judgment to recover 
the term, and a writ of possession thereupon. 

"It is singular that neither the causes which led to this important 
change, nor the principles upon which it was founded, are recorded 
in any of the legal authorities of those times. It is difficult, if not 
impossible, to ascertain with accuracy the precise period when the 
alteration itself took place ; although it certainly must have been made 
between the years 1455 and 1499, since in the former year it is said 
by one of the judges that damages only can be recovered in ejectment; 
and an entry of judgment is still extant, given in the latter of those 
years, that the plaintiff in ejectment shall recover both his damages 
and his term. It is said, indeed, in argument as early as the year 
1458, that the term may be recovered in ejectment, but no reason is 
assigned for the assertion, nor is any decision upon the point on rec- 
ord until the time of the entry already mentioned. 

"But, whatever might be the causes which occasioned this alteration, 
the effects they produced were highly important. A new efficacy was 
given to the action of ejectment, the old real actions fell into disuse, 
and in the subsequent periods of our history the action of ejectment 
became the regular mode of proceeding for the trial of possessory 
titles. 

"That an action of ejectment, by means of this alteration in its judg- 
ment, might restore termors to possession who had been actually 
ejected from their lands, is sufficiently obvious; but it is not perhaps 
so evident how the same proceeding could be applicable to a disputed 
title of freehold, or why, as soon after happened, the freeholder should 
have adopted this novel remedy. No report of the case, in which this 
bold experiment was first made, is extant; but from the innumerable 
difficulties which attend real actions, it is not surprising that the free- 
holder should take advantage of a fiction which enabled him to avoid 
them ; and as the Court of Common Pleas possessed an exclusive right 
of judicature in matters of real property, it is probable that the ex- 
periment originated in the Court of King's Bench, as an indirect 
method of giving to that court a concurrent jurisdiction with the 
Common Pleas. But, however this may be, the experiment succeeded, 
and the uses of the action, as well as its nature, were changed. 

"When first the remedy was applied to the trial of disputed titles, 
the proceedings were simple and regular, differing but little from those 
previously in use, when an ejectment was brought to recover the 
damages of an actual trespass. The right to the freehold could only 
be determined in an indirect manner. It was a term which was to be 
recovered by the judgment in the action, and it was therefore neces- 
sary that a term should be created; and as the injury complained of 



62 DISSEISIN AND THE REMEDIES THEREFOE (Ch. 5 

in the writ was the loss of possession, it was also necessary that the 
person to whom the term was given, should be ejected from the lands. 

"In order to obtain the first of these requisites, namely, a term, the 
party claiming title entered upon the disputed premises, accompanied 
by another person, to whom, whilst on the lands, he sealed and de- 
livered a lease for years. This actual entry was absolutely nec- 
essary; for, according to the old law of maintenance, it was a penal 
offence to convey a title to another, when the grantor himself was 
not in possession. And, indeed, it was at first doubted, whether this 
nominal possession, taken ■ only for the purpose of trying the title, 
was sufficient to excuse him from the penalties of that offence. 

"It is from the necessity of this entry, also, that the remedy by 
ejectment is confined to cases in which the claimant has a right to the 
possession. When only a right of property or a right of action re- 
mained to him, the entry would be illegal, and consequently not suf- 
ficient to enable the party making it to convey a title to his lessee; 
and as the principles of the action still remain the same, although its 
proceedings are changed, the right to make an entry continues to be 
requisite, though the entry itself is no longer necessary. 

"The lessee of the claimant, having acquired all right to the pos- 
session, by means of the lease already mentioned, remained upon the 
land, and then the person who came next upon the freehold, animo 
possidendi, or, according to the old authorities, even by chance, was 
accounted an ejector of the lessee, and a trespasser on his possession. 
A writ of trespass and ejectment was then served upon the ejector 
by the lessee. The cause regularly proceeded to trial as in the com- 
mon action of trespass ; and as the lessee's claim could only be found- 
ed upon the title of his lessor, it was necessary to prove the lessor's 
interest in the land, to enable the plaintiff (the lessee) to obtain a 
verdict. The claimant's title was thus indirectly determined; and 
although the writ of possession must of course have been issued in 
the plaintiff's name, and not in his own, yet as the plaintiff had pros- 
ecuted the suit only as the lessor's friend, he would immediately give 
up to him the possession of the lands. 

"In the infancy of the experiment, this mode of proceeding could be 
attended with no ill consequences. As the party previously in posses- 
sion, must in contemplation of law be upon the lands, and certainly, 
animo possidendi, the friend of the claimant was allowed to consider 
him as an ejector, and make him the defendant in the action. When, 
however, the remedy became more generally used, this simple method 
was found to be productive of considerable evil. It was easy for the 
claimant to conceal the proceedings from the person in possession, 
and to procure a second friend to enter upon the lands, and eject his 
lessee immediately after the execution and delivery of the lease. The 
lessee would then commence his suit against this ejector, and the par- 
ty in possession might consequently be ousted of his lands, without any 



Ch. 5) DISSEISIN AND THE REMEDIES THEREFOR 63 

opportunity of defending his title. To check this evil, a rule of the 
court was made, forbidding a plaintiff in ejectment to proceed against 
such third person without giving a previous notice of the proceedings 
to the party in possession; and it was the practice for such party, on 
the receipt of this notice, if he had any title to the lands, to apply 
to the court for permission to defend the action; which application 
was uniformly granted, upon his undertaking to indemnify the de- 
fendant (the third person) from the expenses of the suit. The action 
however proceeded in the name of such defendant, though the person 
in possession was permitted at the trial to give evidence of his own 
title. 

"A considerable alteration in the manner of proceeding in the ac- 
tion was occasioned by this rule, although it was only intended to rem- 
edy a particular evil. It became the general practice to have the lessee 
ejected by some third person, since called the casual ejector, and to 
give the regular notice to the person, instead of making him, as before, 
the trespasser and defendant. A reasonable time was allowed by the 
courts, for tlie person in possession, after the receipt of the notice, 
to make his application for leave to defend the action, and if he 
neglected to do so, the suit proceeded against the casual ejector, as if 
no notice had been necessary. 

"The time when this rule was made is unknown, but as the evil 
it was intended to remove must soon have been discovered, it prob- 
ably was adopted shortly after the remedy grew into general use. It 
seems also to have been the first instance, in which the courts inter- 
fered in the practice of the action, and is therefore remarkable as the 
foundation of the fictitious system, by which it is now conducted. 

"In this state, with the exception of a few practical regulations, 
not necessary to be here noticed, the action of ejectment continued 
until the time of the Commonwealth. Much trouble and inconveni- 
ence, however, attended the observance of the different formalities. 
If several persons were in possession of the disputed lands, it was 
necessary to execute separate leases upon the premises of the different 
tenants, and to commence separate actions upon the several leases. 
Difficulties also attended the making of entries, and the action of 
ejectment had by this time grown into such general use, as to make 
these inconveniences generally felt. A remedy, however, was discov- 
ered for them by Lord Chief Justice Rolle, who presided in the Court 
of Upper Bench during the Protectorate; and a method of proceed- 
ing in ejectment was invented by him, which at once superseded the 
ancient practice, and has by degrees become fully adapted to the 
modern uses of the action. 

"By the new system, all the forms which we have been describing 
are dispensed with. No lease is sealed, no entry or ouster really 
made, the plaintiff and defendant in the suit are merely fictitious 
names, and in fact all those preliminaries are now only feigned, which 
the ancient practice required to be actually complied with. ♦ * * 



64 DISSEISIN AND THE REMEDIES THEREFOR (Ch. 5 

"A. the person claiming title, delivers to B. the person in pos- 
session, a declaration in ejectment, in which C. and D., two fictitious 
persons, aire made respectively plaintiff and defendant; and in which 

C. states a fictitious demise of the lands in question from A. to him- 
self for a term of years, and complains of an ouster from them by 

D, during its continuance. To this declaration is annexed a notice, 
supposed to be written and signed by D., informing B, of the pro- 
ceedings, and advising him to apply to the court for permission to 
be made defendant in his place, as he, having no title, shall leave the 
suit undefended. Upon receipt of this declaration, if B. do not 
apply within a limited time to be made defendant, he is supposed to 
have no title to the premises ; and upon an affidavit that a declaration 
has been regularly served upon him, the court will order judgment 
to be entered against D. the casual ejector, and possession of the 
lands will be given to A. the party claiming title. When, however, 
B. applies, pursuant to the notice, to defend the action, the courts 
annex certain conditions to the privilege. Four things are necessary 
to enable a person to support an ejectment, namely, title, lease, entry, 
and ouster; and as the three latter are only feigned in the modern 
■practice, C. (the plaintiff) would be nonsuited at the trial if he were 
obliged to prove them. The courts therefore compel B. if made de- 
fendant, to enter into a rule, generally known as the consent^ruk^ 
by which he undertakes, that at the trial he will confess the lease, 
entry, and ouster to have been regularly made, and rely solely upon 
the merits of his title; and, lest at the" trial he should break his en- 
gagement, another condition is also added, that in such case, he shall 
pay the costs of the suit, and shall allow judgment to be entered 
against D. the casual ejector. These conditions being complied with, 
the declaration is altered, by making B. the defendant instead of D., 
and the cause proceeds to trial in the same manner as in other ac- 
tions." 



Ch. 6) USES AND TRUSTS 65 

CHAPTER VI 
USES AND TRUSTS 



The system of rights, powers, privileges, and immunities as outlined 
in the preceding chapters constituted the measure of interests in land 
as developed and recognized by the courts of common law. Then, 
however, as now, men for economic or social or religious reasons fre- 
quently desired to engage in courses of action or to achieve results 
which either were actually forbidden by the law or which at least 
the law would not recognize or protect. It was for reasons of this 
sort that the doctrine of uses made its appearance in England. In its 
essence the idea of a use was extremely simple. A. puts the title to 
land in B., with the understanding that C. is to have the enjoyment 
or use of the la nd. B. in such a case is the only one who has any legal 
title ; C. is entirely dependent upon B.'s honesty and good faith for the 
protection of the interest in the land which A. intended that C. should 
have. It is evident therefore, that the desire of A. to achieve the 
result and his trust in B.'s good faith must be strong to induce him 
to engage in such a course of action. 

The historical origin of uses is obscure. There is some reason for 
believing that traces of them can be found as far back as the 12th 
century. One of the eariiest and most potent influences in the creation 
of uses was the desire to evade the mortmain statutes. Within a 
century after the Norman Conquest the large accumulation of land in 
the hands of the religious corporations began to be a source of con- 
siderable trouble in English law and policy. The conveyance of land in 
mortmain was forbidden by Magna Carta, section 43 (1217), which 
provided as follows: 

"It shall not be lawful from henceforth to any to give his lands to any 
religious house, and to take the same land again, to hold of the same 
house. Nor shall it be lawful to any house of religion to take the 
lands of and to lease the same to him of whom they were received to 
be holden. If any from henceforth so give his lands to any religious 
house, and thereupon be convict, the gift shall be utterly void, and the 
land shall accrue to the lord of the fee." 

After the adoption of Magna Carta the broad construction that was 
put upon this section rendered it impossible for a monastery to receive 
the legal title to land. This being the situation, if a person wished to 
convey land to a monastery, some indirect method became inevitable. 
The following device was the one that was resorted to : The grantor 
A., would make a Hvery of seisin of the land in question to B. in fee, 
with a direction to B. to allow the monastery to have the occupation 
Big. Int. — 5 



66 USES AND TRUSTS (Ch. 6 

and use of the land ; B.'s legal title being purely nominal, for the pur- 
pose of evading the statutory provision. In a court of law B. was the 
only person having an interest in the land. But B., in accordance 
with the terms of his understanding, would permit the monastery to 
take possession of the land. Its only standing at law was that of a 
tenant at will, and if B. violated his pledge and turned the monastery 
out it was helpless legally. In such a case some other means must be 
found to coerce B. into performing his obligation. This means was 
found at an early date in the spiritual authorities. If B. refused to 
abide by his agreement, the parish priest or possibly the abbot of the 
monastery or some other religious authority would threatenthe sjgirit- 
ual punishment of interdict, or excommunication, and, in a time when 
the religious influences were as powerful and widespread as they were 
in England in the 12th century, such a threat was potent, and in many 
cases quite sufficient to compel B. to perform his obligation and to pro- 
tect the beneficiary in the enjoyment of the property. This device of 
evading the mortmain statute by means of uses was abolished in 1391 
by 15 Rich. II, ch. 5, which provides as follows: 

"It is agreed and assented, that all they that be possessed by feoff- 
ment or by other manner to the use of religious people, or other spirit- 
ual persons, of "lands and tenements, fees, advowsons, or any man- 
ner of other possessions whatsoever, to amortise them, and whereof the 
said religious and spiritual persons take the profits, that betwixt this 
and the feast of St. Michael next coming they shall cause them to be 
amortised by the licence of the king and of the lords, or else that they 
shall sell and aliene them to some other use, between this and the 
said feast, upon pain to be forfeited to the king and to the lords, ac- 
cording to the form of the said Statute of Religious, as lands purchased 
by religious people; and that from henceforth no such purchase be 
made, so that such religious or other spiritual persons take thereof the 
profits, as afore is said, upon pain aforesaid ; and that the same stat- 
ute extend and be observed of all lands, tenements, fees, advowsons, 
and other possessions purchased or to be purchased to the use of guilds 
or fraternities." 

By this time, however, the desirability of uses for purposes other 
than those of evading the mortmain statute had become so manifest 
that the practice grew in spite of the forbidding of uses for religious 
purposes. One of the most important of the other sources of uses was 
the facility it afforded in evading the onerous feudal obligations. This 
may best be illustrated by a concrete case. Suppose that A., a tenant 
in fee simple, is likely to die within a year or so leaving a minor son as 
his heir. If A. dies seised of the lands, the overlord (the king, if A, is 
a tenant in capite) will be entitled to wardship and marriage in the land, 
with the prejudicial results to the interest of A,'s heir that have already 
been pointed out. If now, A., during his life, enfeoffs B., a young man, 
of the land in fee simple for the benefit of A,'s minor son in fee simple. 



r 



Ch. 6) USES AND TRUSTS 67 

A. will have to pay the customary fine for alienation, which is slight ; 
but the legal title of the land will then be in B., and A.'s later death will 
have no effect upon B.'s legal title. At the same time the heir, for 
whose use the legal title has been put in B., will be protected in the 
enjoyment of the land, and the profit of it will be accumulated for him 
and not go into the pocket of the overlord, and he will also be free 
from the feudal burden of the lord's right of marriage. There are 
certain drawbacks. Against these advantages must be put the fact 
that, since the legal title is in B., the land will be subject to dower in 
favor of B.'s wife, if he has one, and if B. should die seised of the 
lands his overlord would be entitled to whatever feudal incidents might 
accrue as a result of that death. These possibilities can be reduced to 
a minimum if A., instead of enfeoffing B. alone, enfeoffs B., C, and 
D. as joint tenants of the land in fee. In this case the doctrine of sur- 
vivorship will cut out dower rights and any rights on the part of the 
overlord, so long as any of the joint tenants survive. When the title 
becomes vested in a single joint tenant, the process can be repeated by 
a conveyance by him to other joint tenants upon the same uses. The 
technical name that is given to the one who holds the legal title in (t^jc«*- 
the manner above described is feoffe e to uses ; the beneficiary is tech- 
nically known as the cestui que use. 

Another advantage that the doctrine of uses offered was in the 
facility with which equitable titles could be conveyed. The common- 
Taw methods of conveying legal title have already been discussed. 
These common-law doctrines had no application to the interests of the 
beneficiary, and a mere parol transfer or creation of a beneficial in- 
terest was sufficient. Again, as has been pointed out, the legal title to 
land held in knight service could not be left by will. This was evaded 
by the device of A. enfeoffing B. of land in fee simple, to hold to the 
use of such persons as A. should designate by his will. 

Other causes that contributed to the development of the doctrine 
of uses was the desire of debtors to defeat creditors in their rights 
in the debtor's land and to render more difficult the forfeiture of the 
land for treason. The first of these two purposes was prevented by 
statute at a rather early date. 

Whether the doctrine of uses would have grown to the extent that it 
did, if the protection of the cestui que use had been merely the re- 
ligious one that has already been referred to, may perhaps be doubted. 
But in time another coercive power was developed for the protec- 
tion of the beneficiary in the jurisdiction of the King's chancellor. 
I The chancellor, in the 11th and 12th centuries, was known as the 
"keeper of the King's conscience." At a time when the distinction 
between the legislative and executive and judicial powers of the gov- 
ernment was not sharply defined, and the king was regarded as the 
source of all power, it was the common custom for persons who were 
aggrieved and found themselves in a situation where either the courts 



68 USES AND TRUSTS (Ch. C 

of law were powerless to protect them or where there was no right that 
the common law recognized, to petition the king for redress from the 
hardship of their particular case. These petitions were customarily 
referred by the king to the chancellor for his action, and by the mid- 
dle of the 14fh century the jurisdiction of the chancellor to deal with 
such cases as a matter of course was definitely established. The posi- 
tion of the cestui que use would make a particularly strong appeal, since 
the unfairness of allowing the feoffee to uses to take advantage of 
the fact that he had the legal title and to exercise it in violation of the 
terms of his trust was so obvious that the chancellor would not hesi- 
tate to give relief in such a case. By the end of the 14th century peti- 
tions to enforce uses of lands begin to appear in the records, and from 
that time on they grow steadily in number. 

The method by which the chancellor operated is worth noticing. 
The legal title to the land was in the feoffee to uses and that legal title 
could not be directly affected by the chancellor. Indeed, he made 
no attempt to deal with or change the legal title as such. His method 
of procedure was based upon a recognition of the fact that the legal 
title to the land was in the feoffee to uses, and it took the form of 
commanding the feoffee to uses so to deal with the land which he thus 
owned that the cestui que use should be allowed to enjoy it in accord- 
ance with the will of the creator of the use. If the feoffee refused 
to do this, the chancellor would fine him, or, more. commonly, imprison 
him, until he was ready to comply with the order. The writ by which 
the chancellor summoned the feoffee to uses began with the Latin 
words "Sub poena," and consequently the process in chancery to en- 
force a use was frequently referred to as the subpoena. 

Once the general principle had been definitely established of pro- 
tection by the chancellor of the rights of the cestui que use, the law 
of uses began to take definite shape and various questions in connection 
therewith began to arise. Naturally one of the first questions would 
be as to who would be bound by the terms of the use. 

Clearly the original feoffee to uses, B. would be bound to abide by his 
agreement. If B. died, leaving an heir, D., to whom the legal title of 
the land would pass, the chancellor at first refused to enforce the use 
against him. The reason for this was that the right of the cestui was 
regarded as being not so much a property right, a right in the land, 
as a personal right against the feoffee to uses as an individual. Since 
the confidence had been reposed only in B., the original feoffee, it 
seemed that tliere was no good reason for charging the conscience of 
B.'s heir with respect to the land to which he had the legal title, where 
he had personally made no promises with respect thereto. By the mid- 
dle of the 15th century, however, it was established that B.'s heir would 
take the land subject to the use. Since he had paid nothing for the 
land, the justice of this result seems clear. On the same principh, if 
B. during his life enfeoft'ed X. of the land as a gift, the chancellor had 



Ch. 6) USE SAND TEUSTS 69 

no hesitation in enforcing the terms of the use against X. Again, if 
X. paid a consideration for the land, but at the time that he took it 
knew of the fact that it was held subject to a use in favor of C, there 
would seem to be no good reason why X., the purchaser, should com- 
plain if the use was also enforced against him. On the other hand, if 
the purchaser had paid value for the land and took the legal title in 
ignorance of the fact that any third person was supposed to have a 
beneficial interest in the land, it seemed unfair to permit the beneficiary 
to subject X. to his claim. In this situation both the beneficiary and 
the purchaser were equally innocent, and the purchaser had the added 
advantage over the beneficiary that he had the legal title to the land, 
and as such would naturally be entitled to enjoy it as he saw fit, unless 
the beneficiary could successfully sustain the burden of affirmatively 
establishing that he should be allowed to have the beneficial enjoyment 
despite the fact of X.'s legal title. The principle involved in this 
latter type of case is embodied in the proposition that a purchaser in 
good faith and for a valuable consideration of the legal title to land 
cuts off equitable rights therein. 

It will be noticed that in the various situations so far dealt with the 
person who succeeded to the title of the land with respect to which the 
cestui claimed, did so either as heir o~r donee or purchaser of the title 
of the original feoffee to uses ; that is to say, he took through the feoffee, 
and he was subject to the equities that were good against the feoffee, 
except in the case already mentioned of his being a purchaser in good 
faith for a valuable consideration. If the feoffee to uses forfeited his 
estate, so that it went to his overlord by escheat, or if he was disseised 
of the land, or if he died leaving a wife, who was allotted dower in 
the land, the cestui que use lost his right as against the person so tak- 
ing title. The reason for this difference was that in the cases last men- 
tioned the persons taking title took it after the feoffee to uses, but not 
through the feoffee to uses ; their title being considered as being sep- 
arate from and independent of, that of the feoffee. This doctrine is 
technically expressed in the statement that the interest of the cestui 
que use may be enforced against a person taking title in the per, but 
not against a person taking in the post. 

Another problem that has to be considered is as to when a use was 
raised. If A. enfeoffed B. in fee, and declared that the use of the land 
was to be in C, there could be no question. It was not necessary to 
employ any particular terms in order to declare the use ; any language 
that made it clear that a specified person was to have the beneficial in- 
terest in the land was sufficient. Where the use was not expressly 
declared, there was more doubt in the matter; the problem then being 
to ascertain the intent of the feoffor from other circumstances. If 
the feoffee paid a consideration for the land, the inference would seem 
clear that he was not taking the title merely to benefit some one else, 
and the beneficial interest would be regarded as being in him, together 



70 USES AND TRUSTS (Ch. 6 

with the legal title. This doctrine prevailed in the lack of any other 
evidence showing the one entitled to the beneficial interest to be other 
than the feoffee to uses, even where the consideration was a merely 
nominal one. If A. conveyed the land to B. for life or for years, and 
nothing was said as to who should have the use of the land, it was con- 
sidered that the feudal obligations that would be due from B. to A. by 
virtue of the tenure existing between them would be a sufficient con- 
sideration to keep the use of the land in B. In either of these two last 
mentioned cases if the use was expressly declared to be in a third per- 
son, such express declaration would prevail. 

Another situation was this. A. might enfeoff B. of the land in fee 
simple, and there be neither a consideration nor any statement as to 
who was to have the beneficial use of the land. To understand the 
construction that the chancellor put upon this state of affairs, it 
must be remembered that it has been said that by the 15th century in 
England "the use [custom] of the country to deliver land to be safely 
kept has made a mere delivery of possession no evidence of right with- 
out valuable consideration." ^ This being the practice, the chancellor 
would come to the conclusion that the purpose of the conveyance was 
merely to put the legal title in B., but that A. intended to keep the 
beneficial interest in the land in himself. In these circumstances the 
use was technically said to result to A. A similar doctrine would be 
applied in the case of a feoffment to B. in fee, where the use was de- 
clared only for a smaller estate than a fee, as, for example, to C. for 
life. In this case the use after the termination of C.'s life estate would 
result to A. in fee, and this result would follow even though a consid- 
eration was paid; the presumption being that the consideration was 
paid for the use declared. 

So far, as a matter of convenience, we have considered uses raised on 
a feoffment. It should be noticed, however, that a use might be raised 
upon any other form of common-law conveyance, such as a fine, or a 
recovery, or a lease and release. 

Up to here we have been considering cases in which the use was 
raised in connection with a conveyance of the legal title by the creator 
of the use to some third person for the benefit of the cestui que use ; 
that is, the use has always been raised in connection with a change of the 
possession of the land from the original creator of the use to the gran- 
tee of the legal title. It was entirely possible, however, to raise a 
use without such transmutation of possession. Thus A., the owner of 
land in fee simple, might merely sell to B. for a valuable consideration, 
the use of the land either for years or for life or in fee. In such case 
A. would still retain the legal title, but B.'s equity and his right to the 
protection of the chancellor would be just as clear, and the protection 
would be just as freely given, as in the cases which have hitherto been 
considered. The chancellor would by his orders compel A. to permit 

» Gilbert, Uses and Trusts, 125. 



Ch. 6) USES AND TRUSTS 71 

B. to have the use of the land in accordance with the terms of their 
bargain, so that A. would have only the bare legal title, and B. the bene- '^^^^ 
ficial interest. This transaction was technically known as a bargain . '^^--' 
_and_sale. Since it was not a dealing with the legal interest in the land, 
it did not have to satisfy any of the common-law formalities as to con- 
veyances. A mere informal agreement between the parties was suffi- 
cient, if the chancellor was satisfied as to what the terms of the bargain 
were. On the other hand, the chancellor would not assist B., unless B. 
had paid a valuable consideration for the use of the land. While in the 
common-law courts a promise under seal was just as binding on 
A. as though it was supported by a valuable consideration, and, while 
the deed was one of the established methods of conveying common-law 
interests in land, these mere formalities were not regarded by the 
chancellor as being sufficient to entitle B. to enforce against A. a prom- 
ise which was not supported by a valuable consideration. This doc- 
trine was modified in the 16th century in one type of case which will 
be subsequently considered. 

With the growth of uses the possibility of creating in the cestui es- 
tates of various sizes, similar to the legal estates, but with much more 
flexibility in their creation, became recognized. Use estates might be 
created for years, for life, in tail or in fee, in reversion or in remainder, 
and otherwise. This will be considered at greater length subsequently. 

The custom of raising uses in land grew constantly in England, and 
by the end of the 15th century a large part of English lands were held 
subject to uses, so that the legal title to the land was in one person, 
and the beneficial title to the land in another. While this custom had 
the advantages that have been mentioned above, it also had certain 
disadvantages. Titles, for example, were necessarily in an uncertain 
condition. The strongest objection to the prevalence of uses came 
from the crown, because of the serious encroachments that were made 
on the feudal rights of the crown as a result of the creation of equitable 
titles which were entirely free from the common-law feudal obliga- 
tion. Several attempts were made to meet this situation. One of 
them, passed in 1483, was as follows : 

St. 1 Rich. Ill (1483) c. 1 : "Forasmuch as by privy and unknown 
feoffments, great unsurety, trouble, costs, and grievous vexations daily 
grow among the King's subjects, insomuch that no man that buyeth 
any lands, tenements, rents, service, or other hereditaments, nor wo- 
men that have jointures or dowers in any lands, tenements, or other 
hereditaments, nor men's last wills to be performed, nor leases for term 
of life, or of years, no annuities granted to any person or persons for 
their services for term of their lives or otherwise be in perfect surety, 
nor without great trouble and doubt of the same, because of the said 
privy and unknown feoffments: (2) For remedy whereof, be it or- 
dained, established, and enacted, by the advice of the Lords Spiritual 
and Temporal, and by the Commons in this present Parliament assem- 



72 USES AND TEUSTS (Ch. 6 

bled, and by authority of the same, that every estate feoffment, gift, 
release, grant, leases and confirmations of lands, tenements, rents, serv- 
ices, or hereditaments, made or had, or hereafter to be made or had by 
any person or persons being of full age, of whole mind, at large, and 
not in duress, to any person or persons ; and all recoveries and ex- 
ecutions had or made, shall be good and effectual to him to whom it is 
so made, had or given, and to all other to his use, (3) against the seller, 
feoffor, donor, or grantor thereof, (4) and against the sellers, feoffors, 
donors, or grantors, and every of them, his or their heirs, claiming the 
same only as heir or heirs to the sellers, feoffors, donors, or grantors 
and every of them, (5) and against all other having or claiming any title 
or interest in the same, only to the use of the same seller, feoffor, 
donor or grantor, sellers, feoffors, donors or grantors, or his or their 
said heirs at the time of the bargain, sale, covenant, gift, or grant made, 
(6) saving to every person or persons such right, title, action or interest, 
by reason of gift in tail thereof made, as they ought to have had, if 
this Act had not been made." 

The effect of this statute was to give to the cestui que use power to 
pass to his grantee both his own estate and the legal estate of the feoffee 
to uses. But this was merely a privilege, the exercise of which lay in 
the discretion of the cestui. The statute did very little toward doing 
away with what was, from the point of view of the crown, the fun- 
damental evil, viz., the existence of the separate equitable title. Some 
fifty years later, upon the insistence of Henry VIII, the so-called Stat- 
ute of Uses was passed for the purpose of definitely doing away with 
the system of double ownership, legal and equitable.^ 

St. 27 Hen. VIII (1536) c. 10:- "Where by the common laws of this 
realm, lands, tenements and hereditament's be not devisable by testa- 
ment, (2) nor ought to be transferred from one to another, but by sol- 
emn livery and seisin, matter of record, writing sufficient made bona 
fide, without covin or fraud; (3) yet nevertheless divers and sundry 
iniaginations, subtle inventions and practices have been used, whereby 
the hereditaments of this realm have been conveyed from one to an- 
other by fraudulent feoffments, fines, recoveries, and other assur- 
ances craftily made to secret uses, intents and trusts ; (4) and also by 
wills and testaments, some time made by nude parolx and words, 
sometimes by signs and tokens, and sometimes by writing, and for the 
most part made by such persons as be visited with sickness, in their 
extreme agonies and pains, or at such time as they have scantly had 
any good memory or remembrance ; (5) at which times they being pro- 
voked by greedy and covetous persons lying in wait about them, do 
many times dispose indiscreetly and unadvisedly their lands and inher- 
itances; (6) by reason whereof, and by occasion of which fraudulent 

2 On uses prior to the statute of uses see 2 Bl. op. cit. 327-332 ; Challis, op. 
pit. 385, 3S6; Digby, op. cit. cli. VI; Leake, op. cit. 78-S2; Williams, op. cit. 
1G5-170. 



Ch. 6) USES AND TRUSTS 73 

feoffments, fines, recoveries, and other like assurances to uses, con- 
fidences and trusts, divers and many heirs have been unjustly at sun- 
dry times disinherited, the lords have lost their wards, marriages, re- 
liefs, harriots, escheats, aids pur fair fils chivaHer & pur file marier, 
(7) and scantly any person can be certainly assured of any lands by 
them purchased, nor know surely against whom they shall use their 
actions or executions for their rights, titles and duties ; (8) also men 
married have lost their tenancies by the curtesy, (9) women their dow- 
ers, (10) manifest perjuries by trial of such secret wills and uses have 
been committed; (11) the King's Highness hath lost the profits and 
advantages of the lands of the persons attainted, (12) and of the lands 
craftily put in feoffments to the uses of aliens born, (13) and also 
the profits of waste for a year and a day of lands of felons attainted, 
(14) and the lords their escheats thereof; (15) and many other in- 
conveniences have happened and daily do increase among the king's 
subjects, to their great trouble and inquietness, and to the utter sub- 
version of the ancient common laws of this realm ; (16) for the extirp- 
ing and extinguishment of all such subtle practiced feoffments, fines, 
recoveries, abuses and errors heretofore used and accustomed in this 
realm, to the subversion of the good and ancient laws of the same, and 
to the intent that the King's Highness, or any other his subjects of this 
realm, shall not in any wise hereafter by any means or inventions 
be deceived, damaged or hurt, by reason of such trusts, uses or con- 
fidences : (17) it may please the King's most royal majesty, That it 
may be enacted by his Highness, by the assent of the Lords Spiritual 
and Temporal, and the Commons, in this present Parliament assem- 
bled, and by the authority of the same, in manner and form following ; 
that is to say. That where any person or persons stand or be seised, or 
at any time hereafter shall happen to be seised, of and in any honours, 
castles, manors, lands, tenements, rents, services, reversions, remain- 
ders or other hereditaments, to the use, confidence or trust of any other 
person or persons, or of any body politick, by reason of any bargain, 
sale, feoffment, fine, recovery, covenant, contract, agreement, will or 
otherwise, by any manner or means whatsoever it be ; that in every such 
case, all and every such person and persons, and bodies politick that 
have or hereafter shall have any such use, confidence or trust in fee 
simple, fee tail, for term of life or for years or otherwise, or any use, 
confidence or trust in remainder or reverter, shall from henceforth 
stand and be seised, deemed and adjudged in lawful seisin, estate and 
possession of and in the same honours, castles, manors, lands, tene- 
ments, rents, services, reversions, remainders, and hereditaments, with 
their appurtenances, to all intents, constructions and purposes in the 
law, of and in such like estates as they had or shall have in use, trust or 
confidence of or in the same; (19) and that the estate, title, right and 
possession that was in such person or persons that were, or hereafter 
shall be seised of any lands, tenements or hereditaments, to the use, 



74 USES AND TRUSTS (Ch. 6 

confidence, or trust of any such person or persons or of any body pol- 
itick, be from henceforth clearly deemed and adjudged to be in him or 
them that have, or hereafter shall have such use, confidence or trust, 
after such quality, manner, form, and conditions as they had before, 
in or to the use, confidence or trust that was in them. 

"II. And be it further enacted by the authority aforesaid, That 
where divers and many persons be, or hereafter shall happen to be, 
jointly seised of and in any lands, tenements, rents, reversions, re- 
mainders or other hereditaments, to the use, confidence, or trust of any 
of them that be so jointly seised, that in every such case those person 
or persons which have or hereafter shall have any such use, confidence 
or trust in any such lands, tenements, rents, reversions, remainders or 
hereditaments, shall from henceforth have, and be deemed and adjudg- 
ed to have only to him or them that have, or hereafter shall have any 
such use,' confidence or trust, such estate, possession and seisin, of and 
in the same lands, tenements, rents, reversions, remainders and other 
hereditaments, in like nature, manner, form, condition and course, as 
he or they had before in the use, confidence or trust of the same lands, 
tenements, or hereditaments ; (2) saving and reserving to all and singu- 
lar persons and bodies politick, their heirs and successors, other than 
those person or persons which be seised, or hereafter shall be seised, of 
and lands, tenements or hereditaments, to any use, confidence or trust, 
all siich right, title, entry, interest, possession, rents and action, as they 
or any of them had, or might have had before the making of this Act. 

"III. And also saving to all and singular those persons, and to their 
heirs, which be, or hereafter shall be seised to any use, all such for- 
mer right, title entry, interest, possession, rents, customs, services and 
action as they or any of them might have had to his or their own 
proper use, in or to any manors, lands, tenements, rents or heredita- 
ments, whereof they be, or hereafter shall be seised to any other use, 
as if this present Act had never been had nor made ; any thing con- 
tained in this Act to the contrary notwithstanding. 

"IV. And where also divers persons stand and be seised of and in 
any lands, tenements, or hereditaments, in fee simple or otherwise, to 
the use and intent that some other person or persons shall have and 
perceive yearly to them, and to his or their heirs, one annual rent of 
X. li. or more or less, out of the same lands and tenements, and some 
other person one other annual rent, to him and his assigns for term of 
life or years, or for some other special time, according to such intent 
and use as hath been heretofore declared, limited and made thereof : 

"V. Be it therefore enacted by the authority aforesaid, That in every 
such case the same persons, their heirs and assigns, that have such use 
and interest, to have and perceive any such annual rents out of any 
lands, tenements, or hereditaments, that they and every of them, their 
heirs and assigns, be adjudged and deemed to be in possession and sei- 
sin of the same rent, of and in such like estate as they had in the title, 



Ch. 6) USES AND TRUSTS 75 

interest or use of the said rent or profit, and as if a sufficient grant, or 
other lawful conveyance had been made and executed to them, by such 
as were or shall be seised to the use or intent of any such rent to be 
had, made or paid, according to the very trust and intent thereof, 
(2) and that all and every such person and persons as have, or here- 
after shall have, any title, use and interest in or to any such rent or 
profit, shall lawfully distrain for non-payment of the said rent, and in 
their own names make avowries, or by their bailiffs or servants make 
conisances and justifications, (3) and have all other suits, entries and 
remedies for such rents, as if the same rents had been actually and 
really granted to them with sufficient clauses of distress, re-entry, or 
otherwise, according to such conditions, pains, or other things limited 
and appointed, upon the trust and intent for payment or surety of such 
rent." 

Stated in general terms, the effect of the Statute of Uses was that 
in any case where a person was seised of a freehold estate in land to 
the use of another person, the use estate of the second person was 
transformed into a legal estate of the same size as his prior use estate, 
the legal title of that amount being carried from the holder of the legal 
title to the holder of the equitable title, by operation of the statute. The 
more detailed effects of the statute may be considered from three 
points of view. 1. As to its effect on methods of conveying title to 
land. 2. As to its effect on the law relating to the creation of estates in 
land. 3. As to its effect on the modern law of trusts. 

It will be recalled that under the common law a possessory title in 
land could be passed either by livery of seisin, by lease and release, 
by fine , or by recovery. In the first two of tliese methods, the trans- 
action necessarily involved, in the case of the livery, a formal entry 
upon the land and a formal transfer of the freehold interest; in the 
case of a lease and release, the formalities were nol so great, but an 
actual taking of possession by the lessee was necessary before the re- 
lease could be executed. In the case of the fine and recovery, the trans- 
fer of the title was a matter of judicial record. After^ the £assjige of 
tlie_Slatute.QlU.ses, if A. should enfeoff B. in fee, to the use of C. in 
fee, the legal title would pass to B. by virtue of the feoffment. Since 
he stood seised to the use of C. in fee, the statute would operate to 
carry to C. the legal estate in fee, leaving B. no interest in the land ; 
B. being what is technically known as a conduit to uses. No formal- 
ities were necessary, it is to be noticed, in the declaring of the use, and 
consequently the effect of the statute was to create a legal title in C, 
entirely unaccompanied by any formality ; that is, the legal title in C. 
might rest purely upon a parol declaration of the use. This was true, 
not only where the use was raised upon a feoffment; it applied to a 
use raised upon any of the common-law conveyances. This situation 
continued until the last half of the 17th century, when the seventh sec- 
tion of the Statute of Frauds destroyed the possibility of creating by 



76 USES AND TRUSTS (Ch. 6 

parol a legal title by raising a use upon a common-law conveyance. It 
provided as follows : 

St. 29 Car. II (1676) c. 3 : "§ 7. And be it further enacted by the 
authority aforesaid, That from and after the said four and twentieth 
day of June [1677] all declarations of creations of trusts or confidences 
of any lands, tenements, or hereditaments, shall be manifested and 
proved by some writing signed by the party who is by law enabled 
to declare such trust, or by his last will in writing, or else they shall be 
utterly void and of none effect. 

"§ 8. Provided always, That where any conveyance shall be made 
of any lands or tenements by which a trust or confidence shall or miay 
arise or result by the implication or construction of law, or be trans- 
ferred or extinguished by an act or operation of law, then and in every 
such case such trust or confidence shall be of the Hke force and effect 
as the same would have been if this statute had not been made; any- 
thing hereinbefore contained to the contrary notwithstanding." 

In these cases at least one step in the passage of the title, to wit, the 
common-law conveyance, either involved a change in the actual pos- 
session of the land, or was a matter of judicial record. Neither of 
these facts was true in the case where the owner of the land, A., bar- 
gained and sold the use of it to C. In such a case there would be no 
conveyance at all, and the mere informal bargain and sale of the use 
would be sufficient, under the operation of the statute of uses, to vest 
the legal title in C. The possibility of unlimited and secret transfers 
of the legal title by this method became clear shortly after tlie passage 
^—^/j ^ of the Statute of Uses. To remedy this weakness, the same session of 
Parliament that passed the Statute of Uses passed also the Statute of 
Enrollments. This was as follows : ^ 

St. 27'Hen. VIII, c. 16— St. of Enrollments (1536): "Be it enacted 
by the authority of this present Parliament, That from the last day of 
July, which shall be in the year of our Lord God 1536, no manors, lands, 
tenements, or other hereditaments, shall pass, alter or change from 
one to another, whereby any estate of inheritance or freehold shall 
be made or take effect in any person or persons, or any use thereof to 
be made, by reason only of any bargain and sale thereof, except the 
same bargain and sale be made by writing indented, sealed, and in- 
rolled in one of the King's courts of record at Westminster, (2) or else 
within the same county or counties where the same manors, lands, or 
tenements, so bargained and sold, lie or be, before the Custos Rotu- 
lorum and two justices of the peace, and the clerk of the peace of the 
same county or counties, or two of them, at the least, whereof the clerk 
of the peace to be one; (3) and the same enrollment to be had 
and made within six months next after the date of the same writ- 
ings indented; * * * (6) and that the clerk of the peace for 
the time being, within every such county, shall sufficiently enroll and 
ingross in parchment the same deeds or writings indented as is afore- 



(jC^.juJci 



Ch. 6) USES AND TRUSTS 77 

said; (7) and the rolls thereof at the end of every year shall deliver 
unto the said Gustos Rotulorum of th^ same county for the time be- 
ing, amongst other records of every of the same counties where any 
such enrollment shall be so made, to the intent that every party that hath 
to do therewith, may resort and see the effect and tenor of every such 
writing so enrolled. 

"II. Provided always. That this Act, nor any thing therein contained, 
extend to any manor, lands, tenements, or hereditaments, lying or 
being within any city, borough or town corporate within this realm, 
wherein the mayors, recorders, chamberlains, bailiffs or other officer 
or officers have authority, or have lawfully used to enroll any evi- 
dences, deeds, or other writings within their precinct or limits; any 
thing in this act contained to the contrary notwithstanding." 

The requirements of this statute gave a certain degree of publicity 
to the creation of titles by means of a bargain and sale, and thus 
rendered the entirely secret creation of them in this manner impossi- 
ble. It was still possible to create a use on a common-law convey- 
ance by means of a parol declaration which the statute would then 
transform into a legal estate. 

One other method of creating a legal title also received recognition 
as a direct result of the statute of uses. In discussing the creation 
of uses prior to the statute, it was stated that the chancellor would 
not enforce a gratuitous use, and the mere fact that the promise was 
under seal would not alter the situation. Shortly after the passage 
of the statute of uses, this doctrine was modified in the case of Shar- 
ington V. Strotton,^ decided in the Queen's Bench. In that case the 
owner of land in fee executed a deed in which he stated that, in order 
to preserve his family stock and that of his brothers, he covenanted 
for these reasons and for ^he affection that he bore his brothers that 
he would stand seised of the land in question to his own use for his 
own life, then to the use of his brother and his wife for their lives, 
with other similar limitations. The court held that this consideration 
of blood and brotherly love was sufficient. to make the covenant valid, 
and that consequently the uses were executed under the statute into 
corresponding legal estates. This is the so-called covenant to stand, 
seised, and it is limited in its scope to cases of family settlement in 
favor of near relatives. 

About thirty years later, in Callard v. Callard,* the court of Queen's 
Bench held that these limitations for family purposes could be raised 
only by deed, thus for reasons of public policy giving at least a cer- 
tain degree of definiteness in the creation of legal titles. It will 
be noticed that the covenant to stand seised is not embraced within 
the Statute of Enrollments. 

The covenant to stand seised and the bargain and sale may be com- 
bined in one instrument, as where A., in consideration that B. is his 

sPlowd. 298 (1565). « Moore, 687 (1593). 



78 USES AND TRUSTS (Ch. 6 

son and that C. has paid him ilOO., covenants that B. shall have the 
use of his land during his life, and after his death that C. shall have 
it in fee. 

In the 17th century a still further method of conveying title to land 
was worked out, and, once it had been sanctioned by the courts, be- 
came the most popular method of transferring title. It had the ad- 
vantages of requiring neither the formality or publicity of the com- 
mon-law conveyances, nor was it recordable under the Statute of En- 
rollments. This was the method of conveying known as the lease 
and release. The lease and release has already been mentioned as 
one method of conveying used at common law. When so used, how- 
ever, it was necessary that the lessee should enter the land before he 
could take a release. The new method under the statute of uses was 
for A. to execute to B. a bargain and sale for one year of the land 
in question which it was desired to convey. Since the statute of en- 
rollment applied only to bargains and sales of freehold interests, the 
bargain and sale for a year did not require recording. It had been 
held in Lutwitch v. Mitton ^ that a bargain and sale of this kind gave 
the bargainee by virtue of the statute a legal title without his making 
any entry on the land. Thus having a legal title, by operation of 
. law, he could immediately take a common law release in fee of the 
yf grantor's reversionary interest. This became ultimately the commonly 

*'*^'J^ ^/ used method of conveying title; the bargain and sale for a year and 
./-c-yV jfeC^ the release ordinarily being written on the same piece of paper, the 
^ release being dated one day later than the bargain and sale. 

These two methods of conveying — that is, the common-law meth- 
od, with a declaration of the use to the person taking the legal title 
under the conveyance, and conveyances operating either in whole or 
in part under the Statute of Uses — continued to exist side by side 
till the 19th century. For the first few years after the Statute of 
Uses, the courts were extremely narrow in their attitude, and if a 
conveyance was intended to operate as a conveyance at common law 
and was for some reason ineffective as such, they would refuse to 
give it any efficacy under the Statute of Uses even though all the ele- 
ments of a good conveyance under the statute existed.* Later on, 
their attitude changed, and the rule was definitely established that, if 
a conveyance could be made to operate either at common law or un- 
der the Statute of Uses, it would be held effective.'' 

The most far-reaching effect of the Statute of Uses is to be found 
in the changes that were produced in the law relating to estates. It 
is to be borne in mind that the statute operated to transform into legal 
estates those estates which prior thereto the chancellor would have 
protected as equitable estates. In deciding what interests he would 

6 Cro. Jac. 604 (1620). 

« Sep Callard v. Callard, Moore, 687 (1593). 

7 See Roe v. Tranmer, 2 Wils. 75 (1757). Compare Taylor v. Vale, Cro. 
Eliz. 166 (15S9). 



Ch. G) USES AND TRUSTS 79 

SO protect, the chancellor did not feel himself bound by the strict 
common-law rules which have been discussed in considering the meth- 
od of creating estates at common law and the kinds of estates that 
could be created. To a certain extent when, after the Statute of Uses, 
these former equitable estates now became legal estates, and so were 
brought within the cognizance of the common-law courts, these courts 
did apply the stricter common-law principles. Thus the phrase "to 
his heirs" was necessary to create a fee simple. A mere declaration 
of the use to B. would result in giving him only a life estate, and a 
limitation of the use to B. and the heirs of his body, after the Stat- 
ute of Uses, would give him a legal estate in tail.' In general, how- 
ever, the law courts recognized as valid legal estates those limitations 
which, prior to the statute, had been equitable estates. Certain par- 
ticular cases, however, should be noticed. If A. enfeoffed B. in fee 
to the use of A. for life, after the statute A. would clearly have a 
legal estate for life. If the undisposed of residuum of the use was 
allowed to result to A. in fee, this would give him a reversion in fee 
which would swallow up and destroy his life estate by tlie doctrine 
of merger. Consequently, in order to preserve the life estate, in ac- 
cordance with the express terms of the creation of the use, the court 
held that the reversion did not result to A, in fee, but that, after A.'s 
death, B. had a legal remainder in fee. On the other hand, if A. 
enfeoffed B. in fee to the use of A. in tail, which after the statute 
would give him a legal estate in tail, the use was also held to result to 
him in fee; De Donis in this case keeping the two estates apart, so 
that the common-law doctrine of merger had no application. Doubt 
was also raised in the case of Shortridge v. Lamplugh ^ whether or 
not the use would result on a lease and release in fee. It seemed, 
however, finally to be settled that there was no essential difference 
between this method of conveying and any other, and that a use 
would result in this case where it would result in the case of a con- 
veyance by livery. 

It is in the law relating to the creation of future estates that the 
greatest changes in the law were produced by the Statute of Uses. 
The common-law rules with respect to the creation of common-law 
remainders have already been stated. Under the Statute of Uses the 
possibilities in the creation of future estates were greatly enlarged. 
These changes can best be illustrated by examples : 

If A. enfeoffs B. in fee from the 1st of January next, this convey- 
ance would be bad at common law, for the reason that a freehold 
estate of possession cannot be created to begin in futuro. However, 
A. could bargain and sell the use of his land to B. in fee or in tail 
or for life, to begin two years from date, or on A.'s death, or when B, 

8 See Abraham v. Twigg, Cro. Eliz. 478 (159G) ; Egerton's Case, Cro. Juc. 
525 (1619) ; Broughton v. Langley, 2 Salk. 679 (1703). 
»2 Salk. 678 (1702). 



80 USES AND TRUSTS (Ch. G 

paid A. ilOO. The chancellor would have enforced any one of these 
uses before the statute, and after the statute they were all good legal 
estates. Both the use and the complete legal title would remain in A. 
until the contingency happened upon which they were to go to B. ; 
that is, A.'s estate would not be a particular estate, but would be the 
complete fee of the land, subject to the estate over in favor of B. 
This estate in B. is what is technically known as a springing use; 
the use comes into being without there having been created any 
preceding use estate. The same general principle applied to the cre- 
ation of uses raised on transmutation of possession, as where A. 
enfeoffs X. in fee to the use of B. two years from date, etc. 

Another estate which could be created under the Statute of Uses, 
which was impossible at common law, was a limitation after a fee 
to a third person. Thus A. could bargain and sell to B. in fee, and 
if B. died without issue living at his death, or if C. paid B. ilOO., 
then to C. in fee. This case, where the second use estate operates to 
cut off the first use estate, is technically known as a shifting use. 
Here, also, the same set of estates may be created by a use raised on a 
common-law conveyance, as where A. enfeoffs X. in fee to the use of 
B. in fee, with the hmitation over to C. in fee, as well as on a bargain 
and sale. 

In connection with this limitation, mention should be made of the 
highly technical doctrine of scintilla juris. In the case last put, since 
the limitation of the use was to B. in fee, when that was executed by 
the statute that would seem to carry from X., the feoft'ee to uses, 
all his legal estate. If later the contingency was satisfied by C, so 
that the use was shifted to him, the question arose as to what seisin 
that use was based on. The theory was then evolved that, despite 
> the fact that X.'s entire seisin had been carried to B. to serve the 
first use, there still remained in X. a possibility of a right sufficient 
to carry the second use to C. This possibility of right received the 
name "scintilla juris." The only practical aspect of the question lay 
in the possibility of B.'s being able to deal with the scintilla juris in 
such a way as to prejudice C.'s rights. The whole doctrine was abro- 
gated by statute, and C.'s rights definitely put beyond possibility of 
prejudice.^" 

At common law, as has already been pointed out, it was impossible 
to create a contingent remainder unsupported by a preceding vested 
estate of freehold. Under the statute, however, A. might bargain and 
sell to B. for ten years, and then to the son of B. in fee, even though 
B. had no son at the date of the bargain and sale. Although one or 
two old cases intimated that the estate in A.'s son would be bad, it 
is probably good.^* 

10 23 & 24 Vict. c. 38, § 7. 

11 See Gray, Rule against Perpetuities (3a Ed.) §§ 58-60. 



Ch. 6) USES AND TRUSTS 81 

Another possibility in the creation of future estates, that takes its 
origin in the Statute of Uses, is the doctrine of powers. Since the 
legal title is carried to the use estate, when the use estate comes into 
being, it is possible to create tlie following limitation: A. may bar- 
gain and sell to C. for life, and then to such person as X. may ap- 
point, and, when X. does appoint, his appointee will, by virtue of the 
statute, have his use estate executed into a corresponding legal estate. 
Here, as before, the same result may be achieved by the raising of 
'the use upon a common-law conveyance. 

At common law it is impossible for a man to convey to himself. 
Under the Statute of Uses A. may enfeoff B. in fee to the use of 
A. for life, which will result in giving A. a life estate under the con- 
veyance, as a purchaser. 

These are but illustrations of the possibilities of creating future 
estates under the statute. In every case where the use is undisposed 
of, either by declaration or consideration or tenure, it results to the 
creator of the use, and always in fee, although, of course, it may later 
be cut off by some expressly declared use. A case that is not ex- 
pressly covered by the statute is the following: A., a tenant for Hfe, 
bargains and sells to B in fee. In this, case it will be noticed that 
the legal estate, A.'s, out of which the use estate in B. is created, is 
smaller than is the estate in B. The utmost that the statute can do 
is to carry A.'s life estate to B. Consequently B. can get a fee only 
for the life of A. 

Mention has been made in another connection of the destructibil- 
ity of contingent remainders, except where preserved by trustees or 
protected by statutory enactment. In this regard there was a marked, 
difference between contingent remainders and springing or shifting 
uses and executory devises. Regardless of what might be done with 
the particular estate, when the contingency happened upon which the 
declared use was to come into being, the legal estate was thereby 
automatically created by action of the statute. This nondestructibil- 
ity of estates created under the Statute of Uses led to the growth of 
a new doctrine in the law of property, the so-called rule against per- 
petuities. The situation that it was designed to reach can best be 
shown by a concrete illustration: Suppose A. enfeoffs B. in fee to 
the use of C. in fee, but if C.'s direct descendants ever become ex- 
tinct then to the then oldest living descendant of D. in fee. It is 
evident that in this case the estate after C.'s may not vest until the lapse 
of an indefinitely long time. Consequently, since a shifting use is 
indestructible, it is evident that in no way can a clear title be ob- 
tained to this land. Such a situation, and there are many others, 
variations of the same principle, is open to most serious objections 
upon the grounds of public policy. Beginning with the 17th century, 
the doctrine was evolved, and now is definitely recognized which may 
be stated as follows: "No interest is good unless it must vest, if at 
Big.Int. — 6 



82 USES AND TRUSTS (Ch. 6 

all, not later than twenty-one years after some life in being at tlie 
creation of the interest." ^* 

We now come to a consideration of cases not covered by the statute. 

The statute in terms purported to apply only to a case where one 
person was seised to the use of another. Consequently, if A., a ten- ' 
ant for years, bargains and sells to C, or if A., the owner in fee, 
leases to B. for years to the use of C, in neither case is C.'s interest af- '' 
fected by the statute. His rights, after the statute, as before, are 
purely equitable. ' 

A. enfeoffs B. in fee to the use of B. in fee. B.'s estate in this 
case is not created by the statute, but by virtue of the common-law 
conveyance, and the declaration of the use in B. merely prevents the 
use resulting to A.^^ If, on the other hand, A. enfeoffs B. in fee to 
the use of B. and C. in fee, B. as well as C. in this case gets his es- 
tate by operation of the statute.^* 

In Cooper v. Franklin ^^ it was held that it was impossible to raise 
a use on an estate tail; the reason for this being that De Bonis 
definitely fixed the beneficial interest in the tenant in tail, and it was 
impossible to raise a use in contravention to the purpose of that 
statute. 

Another use not executed by the statute is the active use. Thus A. 
enfeoffs B. in fee, to sell the land in question and pay the proceeds 
to C, or to collect the rents and profits and pay them to C. Since 
in these cases the feoffee to uses had active duties to perform, and was 
not merely to serve as a passive conduit to uses to C, the case was 
not regarded as coming within the operation of the statute. Conse- 
quently C.'s rights still remained equitable.^® 

The final case of the use unexecuted by the statute is the use on the 
use, as where A. enfeoffs B. in fee, to the use of C. in fee, to the use 
of D. in fee, or A. bargains and sells to C. in fee, to the use of D. in 
fee. Before the passage of the Statute of Uses the chancellor would 
have enforced only the first use in C. ; the use over to D. being re- 
garded as repugnant to the already declared use in C, and therefore 
void. The same situation obtained after the statute; since C.'s use 
was the only one that the chancellor would have recognized, C. was 
regarded as having the legal estate after the statute, and the use to 
D. was disregarded.^^ Care should be taken to distinguish between 
a use on a use and a shifting use. In the former case the attempt is 
to make the first cestui que use hold contemporaneously for the ben- 
efit of the second cestui que use. In the second case the attempt is 

12 Gray, op. cit. § 201. 

13 See Doe d. Lloyd v. Passingham, 6 Barn. & O. 305 (1827). 
1* See Samme's Case, 13 Co. 54 (1609). 

15 Cro. Jac. 400 (1616). 

18 Nevil V. Saunders, 1 Vern. 415 (1686). 

iiTyriel's Case, Dyer, 155a (1557). 



Ch. 6) USES AND TRUSTS 83 

to make the interest of the second cestui que use come in on a certain 
contingency and cut off the interest of the first cestui que use. 

The interest of the second cestui que use in the case of the use on 
the use was apparently entirely ignored both by the law courts and 
by the chancellor for about 100 years after the passage of the Stat- 
ute of Uses. By the middle of the 17th century, however, the doc- 
trine that a use on a use could not be enforced was regarded as a mere 
legal technicality, and the chancellor began to protect in equity the 
interest of the second cestui. With this recognition by the chancellor 
of the possibility of an equitable estate, distinct from and imposed 
upon the legal estate in tlie land, and protected by equitable processes, 
the situation was brought back in many respects to substantially what 
it was before the passage of the Statute of Uses. The statement of 
the interest of the old cestui que use, the only one, as has been al- 
ready said, that the chancellor would have recognized, having become 
by statute and the passage of time merely a step in the creation of a 
legal estate, this legal estate, in turn, becomes the foundation for a 
new equity. It is in this connection that the statement has been made 
that the total effect of the Statute of Uses was to add three words 
to a common-law conveyance. 

This is the beginning of the modem law of trusts. The only dif- 
ference is that the feoffee to uses, or holder of the legal estate, is now 
called a trustee, and the old cestui que use, or holder of the equitable 
estate, is now called the cestui que trust. The doctrines of tlie 
modern law of trusts, while bearing a general resemblance to those 
of the old law of uses, differ widely therefrom in other regards, and 
form a large and independent branch of modern law.^* 

18 On uses subsequent to the statute of uses see 2 Bl. op. cit. 333-340; 
Challis, op. cit. 386-392; Digby, op. cit. ch. VII. Leake, op. ciL 82-96; Wil- 
liams, op. cit. 170-179, 366-371. 

See, in general, on uses, Ames, 21 Harv. Law Rev. 261, 



INDEX 



[the figures refeb to pages] 



ABATEMENT, 58 n. 

ALIEXATION, 

By subinfeudation, 11, 17, IS. 

By substitution, 11. 

Restricted by De Donis, 22. 23. 

By Quia Emptores, 12, 13. 
Under the statute of uses, 77-79. 

ALLODIAL OWNERSHIP, 17. 

ATTORNMENT, 

Abolition of, 45. 
Requirement of, 7, 45. 

BURGAGE TENURE, 9. 

CONDITIONAL LIMITATIONS, 43. 

CONVEYANCE, 
See Alienation. 

COPYHOLD TENURE, 10. 
See Servile Tenants. 

CORPOREAL AND INCORPOREAL RIGHTS, 36, 31. 

CURTESY, 

See Life Estates. 

DEFORCEMENT, 58 n. 

DESCENT AND PURCHASE, 20. 

DISCONTINUANCE, 58 n. 

DISSEISIN, REMEDIES FOR, 59, 60. 
What is, 58. 

DOWER, 

See Life Estatea 

EJECTMENT, 

Action of, 60-64. 

ENTRY, 

Right of, 43. 
EXCHANGE, 

Conveyance by, 47. 

FEE CONDITIONAL, 22. 

FEB DETERMINABLE, 23. 

FEE SIMPLE, 

How created, 20, 21. 
Origin of, 19, 20. 
Subinfeudation of, 11, 13, 17, 18. 

BiG.lNT. (85) 



86 INDEX 

[The figures refer to pages] 

FEE TAIL, 

Methods of barring, 24, 25. 
Orisin of, 23. 
Uuited States, in, 25. 

FEOFFMENT, 

Charter of, 34. 
Conveyance by, 34, 35. 
See Seisin. 

FINE. 

Conveyance by, 47. 
Entail barred by, 24. 
Feudal incident of, 7. 

FRANKALMOYN TENURE, 10. 

FREEHOLD, 

Meanings of, 30. 



GAVELKIND TENURE, 9. 

INCORPOREAL HEREDITAMENTS. 44. 
• See Corporeal and fncorporeal Rlghta 

INTRUSION, 58 n. 



JOINT OWNERSHIP, 

Communitj' property, 56. 
Coparceny, 53, 54. 
Joint tenancy, 49-53. 
Tenancy by entirety, 56. 
Tenancy in common, 55, 58. 

JOINT TENANCY. 
How created. 49. 
Properties of, 50-62. 
Termination of, 52, 53. 

LEASE. 

How created, 34, 35. 

See Tenant. 

LEASE AND RELEASE, 78. 

LIFE ESTATES, 
Curtesy, 27. 
D'autre vie, 26. 
Dower, 28-30. 
General occupant In, 26w 
Special occupant In, 26. 
Varieties of, 26. 

LIMITATION, 
Words of, 20. 

■ LORD AND TENANT, 3. 



MANOR, 

Divisions of, 8. 
Jurisdiction of, 9. 

MERGER, 47. 



INDEX 8T 

[Tbe figures refer to pagea] 



MILITARY TENURE, 
Abolition of, 14-17. 
Incidents of, 

Aids, 4. 

Esclieat, 7. 

Fines. 6. 

Marriage, 6. 

Primer seisin, 5. 

Relief, 5. 

Wardship, 5. 
In United States, 17. 

NORMAN CONQUEST, 
Effect of, 1, 2. 

PERPETUITIES, 

Rule against, 81, 82. 

POSSESSION. 

Distinguished from seisin, 32, 331 
Transfer of, 34, 35. 

REAL PROPERTY LAW, 
Origin of, 1. 

RECOVERY, 

Common, 

Bars entail, 24. 

Form of conveyance by, 47. 

RELEASES, 46. 

REMAINDERS, 

Contingent, 39-41. 
Destructability of, 41, 42, 47. 
Transfer of, 44, 45. 
Trustees to preserve, 42. 
Vested, 38, 39. 

REVERSIONS, 38, 39. 

SEISIN, 

Distinguished from possession, 32, 3SL 

Meaning of, 32, 33. 

Transfer of, 34, 35, 38, 39, 41, 42. 

SERJEANTY, 7, 10. 

SERVILE TENANTS, 9, 10. 
See Copyhold. 

SOCAGE TENURE, 8, 9. 

STATUTE OF USES, 72-75. 

Conveyances under, 75, 77-79. 
Estates created under, 79-81. 
Relation of, to law of trusts, 83. 
Scintilla juris, under, SO. 
Uses not executed by, 82, S3. 
See Uses. 

SURRENDER, 46. 47. 

TENANT", 

At sufferance, 32. 
At will, 32. 
For years, 31. 
From year to year, 32. 



S8 INDEX 

[The figures refer to pages] 

TENURES, 

Abolition of, 14-17. 
Burgage, 9. 
Copyhold, 10. 
Frnnkaluioyn, 10. 
rTavelkind, 9. 
Military, 4-7. 
Socage, 8, 9. 

United States, in, 17, 18. 
Varieties of, 3. 

TRUSTS, 

Relation of, to uses, 83. 

USES, 

Bargain and sale of, 70. 

Cbancellor's protection of, 67, 68.- 

Consideration, when necessary. 69, 70. 

Donee of feoffee, bound by, G9. 

Feoffee to, bound by, 67, 68. 

Feudal obligations, evaded by, 66, 67. 

Heir of feoffee, bound by, 67. 

Mortmain statutes, evaded by, 65, 66. 

Not executed by the statute, 82. 

On a use, 82, 83. 

Purchaser from feoffee, when bound by, 69. 

Raised by parol. 71, 75, 76. ' 

Resulting, 69, 70. 

Raised without transmutation of possession, 70, 77. 78. 

Statutes affecting, 65, Magna Carta. § 34 : 66. 15 Rich. II, c. 5 : 71. 1 Rich. 

Ill, c. 1 ; 72, 27 Hen. VIII, c. 10; 76, 29 Car. II, c. 3, § 7; 76, 27 

Hen. VIII, c. 16. 
See Statute of Uses. 

WILL OF REAL ESTATE. 

Not allowed at common law, 47. 
Power to make, given by statute, 48. 



WBBT PUBLISHING CO., PRINTERS, ST. PAUL, HIHM. 



CASES 



ON 



RIGHTS IN LAND 



BY HARRY A. BIGELOW 

PEOFESSOE OF LAW IN THE UNIVERSITY OF CHICAGO 



AMERICAN CASEBOOK SERIES 

WILLIAM R. VANCE 

GENERAL EDITOR 



ST. PAUL 

WEST PUBLISHING COMPANY 
1919 



COPYBIGHT, 1919 
BY . 

WEST PUBLISHING COMPANY 

(BiG.RlGHTS) 



TO MY COLLEAGUES 

OF THE 

LAW FACULTY 

(iU)* 



AUTHOR'S PREFATORY NOTE 



The title of this volume is at best an approximation. The powers 
and immunities that form so important a part of rights relating to 
land are touched on only to a slight extent; for the most part those 
aspects of property rights are taken up elsewhere. To attempt to 
catalogue in detail the privileges that the owner of land has, whether 
his ownership be absolute or qualified, would be to attempt a list of 
human activities which tal<e place on the soil ; to attempt to consider 
the relation between these privileges and the right not to be disturbed 
in the enjoyment of them, or the further question as to how far these 
privileges may be abridged, is the proper field for a work on Juris- 
prudence or Constitutional Law. The aim of the present volume is 
more limited. It is to present first, the law of the more important 
rights that are normal incidents of the ownership of soil ; and, sec- 
ond, the law of certain more or less stereotyped forms of rights and 
privileges with respect to land in which a third person has an interest, 
either absolute or qualified. Hence the division of the volume into 
two parts : Rights Incidental to Ownership, and Rights in the Land 
of Another. 

How far cases in equity ought to be included is a question upon 
which reasonable men may well differ. In the present collection the 
aim has been this: Where the courts of equity have developed a 
substantive law peculiar to themselves, as in the enforcement of con- 
tracts aft'ecting the use of land and in waste, the attempt has been 
made to show the development of those doctrines witla the same full- 
ness as any other branch of the law within the scope of the volume. 
Where the courts of equity have merely protected the owner in rights 
that a common-law court would also enforce, the aim has been to 
indicate the peculiarities, if any, of the protection given by a court 
of equity; but not to go into the question of what prerequisites such 
as the establishment of a rigljt at law, or repeated violations of the 
right or similar matters, must exist before a court of equity will act. 
Nor has it seemed necessary, in dealing with the extent to which 
equity would act, to cover all aspects of equitable relief in each topic 
taken up in the volume. The considerations that do or do not affect 
a court of equity in giving relief in some situations (as for example, 
the doctrine of balance of convenience in nuisances), must be under- 
stood as applicable, mutatis mutandis, to other situations covered by 
the volume. 

The traditional and almost universal method of dealing with the 
subject-matter of this volume and that of Professor Aigler is to take 
up the former first. Consequently the numerical order of the volumes 
has naturally and properly been arranged with this custom in mind, 
and in the present volume the attempt has been made to have the 
material in a shape available for first year students. 

(V) 



VI AUTHOR'S PREFATOEY NOTE 

In the statement that the teaching of the subject-matter of Volume 
II before that of Volume III is traditional, there is no implication 
that this order has only tradition to justify it. At the same time 
it is the opinion of the editor of the present volume that, while the 
subject-matter of both Volume II and Volume III, as well as that of 
the other volumes in this series, must of course be taken up at one 
time or another, if the student is to have an adequate understanding 
of the whole field of property law, there is much to be said in favor 
of an order which combines the subject-matter of Volume III, with 
certain introductory material, as a first-year course, and postpones 
the subject-matter of Volume II to the second year. Few teachers 
of Real Property will plunge beginning students at once into the 
cases of either Volume II or Volume III. There must be some intro- 
duction to this general subject. Whichever order is adopted, the 
starting point will he the material covered in this series under the 
title "Introduction to the Law of Real Property," either in the form 
there given or in some other form. The most important topics dealt 
with in this introductory matter are disseisin, feoffments, grants, es- 
tates, and the doctrine of uses. After this material has been dealt 
with, if it is to be really assimilated, and correlated with living law, 
so as to be more than a more or less .nebulous acquaintance with legal 
antiquities, the transition must be to branches of the law Avhere the 
information that has been acquired can be kept alive and steadily 
made use of, either by comparison, or by analogy, or as furnishing a 
historical explanation for modern doctrines. It is the belief of the 
writer that this correlation and vivifying of the law is more likely to 
be accomplished by the use' of a casebook that deals with adverse 
possession, estates and the form and effect of a modern conveyance, 
rather than a casebook that deals with easements, covenants, and 
rents. Furthermore, while one cannot be dogmatic on the point, 
questions of the making of deeds, of the relation of landlord and 
tenant involved in leases and surrenders, and of adverse possession, 
seem to be of a sort more likely to have come within the experience 
of the beginning law student than questions of easements, profits, and 
restrictive covenants. 

'So far as the intrinsic difficulty of the subject-matters of the two 
volumes is concerned, both present problems of law that are not easy. 
If Volume II has covenants and rents. Volume III has reservation 
of easements and title by estoppel. But here, too, on the whole, the 
subject-matter of Volume III seems more adapted to first-year work 
than that of Volume II. 

No person who has had the advantage of Professor Gray's teach- 
ings and writings can fail to acknowledge the influence and help 
that they furnish. The author is glad to make that acknowledgment. 

Harry A. Bigei^ovv. 

The University of Chicago Law ScnooL, 
July 17, 1919. 



TABLE OF CONTENTS 



PART I 
Rights Incidental to Possession 



CHAPTER I Page 

Possession 1 

CHAPTER II 
AlB 11 

CHAPTER III 
La^d 36 

CHAPTER IV 
Stbeaus 54 

CHAPTER V 

SUBFACE WATEBS 93 

CHAPTER VI 
Undebqbound Watebs 121 

CHAPTER VII 
Rights or Revebsionebs 140 



PART ir 
Rights in the Land of Another 

CHAPTER 1 
Pbofixs 153 

CHAPTER II 
Section Easements 

1. General Principles of Easements ISO 

2. Scope of Easements 201 

3. Easements in Structures 232 

4. Easements in Artificial Water Courses 253 

5. Afiirraative Easements 2GS 

6. Extinguishment of Easements 277 

CHAPTER III 
LacENSES 303 

BlQ.RlQHTS (vil) 



Vlll TABLE OF CONTENTS 



CHAPTER IV 

Legal Enforcement of Covenants Running with the Land 

Section Page 

1. As between Landlord and Tenant 338 

I. Before the Statute of 32 Henry VIII 338 

II. Under the Statute of 32 Henry VIII 339 

(A) The Statute 339 

(B) Formalities 341 

(C) What Covenants Run 352 

(a) Covenants by the Lessee 352 

(b) Covenants by the Lessor 373 

(D) Assignments 383 

(a) General Principles 383 

(b) Assignment of Part Interests 395 

IIL Not Under the Statute 32 Henry VIII 410 

2. As between Owners in Fee 427 

I. Agreements under Seal 427 

(A) Formalities 427 

(B) What Covenants Run 446 

(C) Party Wall Covenants 471 

II. Agreements not Under Seal 489 

CHAPTER V 

Equitable Enforcement of Agreements Running with the Land 

1. , General Principles 494 

2. Running of Benefit and Burden 511 

CHAPTER VI 

Rents 

1. General Nature of Rents 549 

2. Suspension and Apportionment of Rents 575 

3. Failure to Obtain Possession 617 

4. What Payments are Rents 632 

CHAPTER VII 
Waste 

1. General Principles of Waste 639 

2. Remedies for Waste 677 

3. Equitable Waste , ■- 688 

CHAPTER VIII 
Public Rights 

1. Streams 701 

2. Highways 718 



TABLE OF STATUTES 



Page 

32 Hen. VIII, c. 34 339 

4 Anne, c. 16, §§ 9, 10 552 

Rev. St. N. Y. p. 747, § 22 558 

52 Hen. Ill, c. 23, § 2 639 

6 Edw. I, c. 5 639 



Big. Eights (ix) 



TABLE OF CASES 

[titles of cases printed hebein are set in ordinary type, cases cited in 

footnotes are indicated by italics. where small capitals 

are used, the case is referred to in the text] 



Page 

V. Coopor 565 

Abbot V. Weekly ISO 

Abbott V. Kansas City, St. J. d C. 

B. R. Co 103 

Ackroyd v. Smith 185 

Acton V. Blundell 121 

Adams v. 'Sable 4S2 

Adams v. Van Alstyne 273 

Albright v. Cortright 717 

Aldritt V. Fleischauer 114 

Allcock V. Moorhouse 415 

Allen V. Culver 420 

Allen V. San Jose Land d Water 

Co 205 

Allen V. Seckham 495 

Ainci'ican Strawboard Co. v. Hal- 

deman Paper Co 355 

Ames V. Kendall 398 

Ames V. Shaic 22S 

Angus v. Dalton 33 

Anonymous G7S 

Anonymous Case ". . 690 

Applegate v. Franklin 99 

Ards V. Watkins 561 

Arnold v. Stecens 295 

Ashby V. Wilsoii 513 

Ashley v. Wolcott 96 

Atkins v. Boedman 223 

Atlanta, K. & N. R, Co. v. McKln- 

ney 455 

Atlantic Coast Line R. Co. v. 

Bunting 230 

' Attoe V. Heminings 404 

Attorncif General t'. Conduit Co.. . 41 

Attorney General v. Williams 222 

Austerbcrry v. Oldham 462 

Avis V. Newman 661 

Bacon v. Sandbcrg 547 

Bagot v. Bagot 650 

Bailey v. Stephens 176 

'Bakeman v. Talbot. 227 

Baker v. Sebright 696 

Ball v. Herbert 705 

Ballard v. Dyson 205 

Ballard v. Titus 220 

Bally v. Wells 359 

Baltimore City v. Fairfield 
Imp. Co 22 



Baltimore & P. R. Co. v. Firru 
Baptist Church 

Bamford v. Turnley 

Bank of British North America v. 
Miller 

Bank of Pennsylvania v. Wise... 

Banning, Case of 

Barber v. Penley 

Barkley v. Wilcox.. 

Barnes v. City of London K. E. 
Co 

Barringer v. Virginia Trust Co.. . 

Barrington, In re 

Barroio v. Richard 

Barry v. EdlavUch 

Barton ik Slifer 

Baskerville v. Mayo 

Bass V. Rollins 

Bassett v. Salisbury Mfg-. Co. . . 

Bateraan v. Hotchkin 

Bates V. Duncan 

Bates v. Inhabitants of West- 
bokough 

Baxter v. Taylor 

Beach v. Barons 

Beach v. Morgan 

Beach V. Sterling Iron d Zinc Co. 

Beal v. Boston Car Spring Co. 

Bennett v. Bittle 

Berry v. Godfrey 

Bickford v. Parson 

Biddlc V. Hussman 

Bidivcll V. H olden 

Bingham v. Salene 

Bish V. Keeling 

Bitello V. Lipson 

Blatchford v. Cole 

Blewett v. Tbegonning 

Bliss V. Hall '. 

Bloeh V. I sham .'.'..*. 

Bly v. Edison Electric Illumi- 
nating Co 148, 

Boatman v. I^asley 

Bonomi v. Backhouse 

Boston Ferrule Co. v. Hills 

Boston d r. R. Corporation v. Do- 
hcrty 

Boichuy V. Richards 

Bowles (LfCwis), Case of 



Pa?e 

19 
15 

197 
552 
184 
723 
103 

373 

464 

698 

525 

236 

547 

556 

610 

126. 

687 

316 



119 
140 
392 
717 

87 
572 
594 
237 
416 
587 
506 
163 
355 
225 
559 
179 

34 
475 

151 

187 

36 

29 

291 
242 
688 



BlG.RlGHTa 



(xi) 



xu 



TABLE OF CASES 



Page 

Bowlsby V. Speer 114 

Bradford v. Pickles 129 

Bradford Oil Co. v. Blair 352 

Brawley v. Wade. 559 

Krett V. Cumberland 383 

Beeweb v. Marshall 448 

Bretcer v. Marshall 510 

Brewster v. Kidgill 566 

Bristol Hydraulic Co. v.Boyer. . . 93 
Beoadbent t. Ramsbotham. .. .96, 98 

Brock v. Dole 657 

Brodeb v. Saillaed 117 

Bronson v. Coffin 270 

Broiison v. Coffin 272 

Brooks V. Curtis 232 

Brown v. Chadbourne 701 

Brown v. Illius 134 

Brown v. Southern Pac. Co 442 

Browne v. Trustees of Methodist 
Episcopal Church in City and 

Precincts of Baltimore 295 

Bruley v. Garvin 316 

Buckworth v. Simpson & Benner 410 

Bulkley v. Dolhearc 686 

Burbank v. Pillsbury 439, 489 

Burr V. Maclay Water Go 129 

Bussman v. Gan-ster 635 

Butler V. Frontier Telephone Co. 3 
BuTLEB V. Kynneesley 697 

Cadwalader v. Bailey i 194 

'Caldwell v. Fulton 158 

Campbell v. Mesier 247 

Campbell v. Race 729 

Campbell v. Seaman 29 

C apron v. Greenway 302 

Carrell v. Read 592 

Cartwright, In re 661 

Castuer v. Riegel 273 

Chalmers v. Smith 667 

Chapman v. Smith 352 

Charless v. Rankin 49 

Chase r. Cram 184 

Chasemore v. Richards 33 

Chatficld v. Wilson 125 

Cheesehorough v. Green 242 

Chester v. Alker & Elmes 718 

Cibel & Hills, Case of 591 

Cincinnati, H. d D. R. Co. v. 

Wackier 232 

City of Canton v. Schock. 79 

City of Emporia v. Soden 83 

City of Mansfield v. Balliett 80 

City of Quincy v. Jones 53 

Claflin v. Carpenter 315 

Clapp V. Boston 337 

Clark V. McGee 525 

Clavebing v. Claveeing 651 

Clegg v. Hands 358 

Clement v. Wheeler 691 

Clinton v. Myers 77 

Clun, Case of 555 



Page 
Clun V. Fisher 558 

Cobb V. Bennett 709 

Cobb V. Johnson 418 

Cockson V. Cock 352 

Codman v. Evans 723 

CoiT V. Owenby 230, 231 

Cole v. Bellasis 557 

Cole V. Foxman 164 

Cole V. Green 642 

Cole v. Hughes 484 

Collins V. Chartiers Valley Gas 

Co 134 

Conduitt V. Ross 475 

Congham v. King 395 

Conner v. Woodfill 119 

Constantine v. Wake 638 

Consumers' Gas Trust Co. v. 

AmeT^an Plate Glass Co 232 

Coolc V. Jones 379 

Cook v. Mayor of Bath 280 

Cook v. Steabns 315 

Cooke v. Chilcott 461 

Cooper V. Crabtree 144 

Copper v. Dolvin 119 

Cornish v. Stubbs 314 

Corporation of Birmingham v. Al- 
len 42 

Cotting v. Boston 243 

Countess of Salop v. Crompton . . 659 

Countryman v. Deck 505 

Crain v. Fox 280 

Crawford v. Krollpfeiffer 482 

Crawford v. RAifBO. 1 100 

Crescent Co. v. Silver King Co. ... 10 

Cronin v. Watkins 343, 420 

Crossley d Sons, Limited, v. 

Ldghtoider 88 

Crowe V. Riley 355 

CuBiTT V. Porter 239 

Damren v. American Light & 

Power Co 559 

Damron v. Justice 228 

Dana v. Valentine 35 

Davis V. Gilliam 646 

Davis V. Niagara Falls Toiccr Co. 120 

Davis V. Tway 328 

Day V. Cato^i 252 

Demarest v. Willard 407 

Denman v. Prince 460 

Derby (Earl of) v. Ttiylor 396 

Devlin v. Snellenburg 143. 

Dewar v. Goodman 380 

Dickinson v. Baltimore 682^ 

Dill V. Board of Education of City 

of Camden 295 

Dillman v. Hoffman 282 

Dix V. Jaquay 676 

Doe V. Spry 355 

Doe v. Wood 100 

Doe V. Wood 157 

Doe d, Bish v. Keeling 355 



TABLE OP CASES 



XUl 



Page 

Doherty v. AUman 682 

Dolph V. Barry 609 

Dooly V. Stringham 658 

Dority v. Dunning 302 

Dorr V. llarkncss 672 

Douglas V. Coonley 243 

Dowslass V. Kendal 154 

Drake v. Hewins 313 

Drake v. Lady Ensley Coal, Iron 

& R. Co 87 

Drake v. Wells 313 

Drake v. Wyiuan 313 

Driiry v. Kent 164 

DiidcGon V. Brouson 218 

Duhain v. Mermod, Jaccard & 

Kiivg Jewelry Co 600 

Duiuont V. Kellogg 61 

Duncan v. Central Pass. R. Co... 546 

Durfee v. Garvey 221 

Duross v: Singer 228 

Duval V. Becker 302 

Dyer V. Sanford 291 

Dyett V. Pendleton 600 

Earl of Derby v. Taylor 396 

Earl of Sandioich v. Great North- 
ern R. Co 69 

Earle v, Arbogast 670 

Edgerton v. Page 606 

Edgett V. Douglass 216 

Edmison v. Lotmy 597 

Eells V. Morse 559 

Elias v. Griffith 650 

Elliot V. Fltchhurg R. Co 75 

Elliston V. Readier 529 

Emans v. Turkbull 166 

Erabrey v. Owen 54 

Emerson v. Shores 316 

Emmott V. Cole 632 

Eno v. Del Vecchio " 234 

Ensminger v. People 715 

Eulrich v. Richter 93 

Farmers' & Merchants' Irr. Co. v. 

Hill 467 

Farner v. Tennessee Copper Cci.. . 29 

Fbntiman v. Smith 304 

Ferguson v. Chase 313 

Filbert v. Decbert 77 

First Nat. Bank of Sioux City v. 

Flynn 637 

Fitch V. Johnson 455 

Fitchburg Cotton Manufactory 

Corporation v. Melven 581 

Fitzpatrick v. Boston & M. R. R. 298 

Fitzpatrick v. Welch 119 

Flaherty v. Fleming 228 

Flamang, Case of 8 

Flanagan v. Philadelphia 703 

Fleet V. Metropolitan Asylum 

Board 23 

Fleeticood v. Hull 355 



Page 

Flint v. Sweeney 610 

Foley V. Wyeth 46 

Ford V. Oregon Electric R. Co 452 

Ford i\ Whitlock 262 

Formby v. Barker 531 

Fowler v. Bott 577 

Fresno Canal Co. v. Rotcell 470 

Friend v. Oil Well Supply Co.... 624 

Frogley v. Earl of Lovelace 31G 

Frogley v. Lovelace (Earl of) 316 

Frye v. Partridge 510 

Fuller V. Wason 648 

Gagnon v. French Lick Springs 

Hotel Co 129 

Gaines v. Green Pond Iron Min- ' 

ing Co 649 

Gallatin v. Corning Irr. Co 102 

Gamlen v. Lyon 698 

Gannon v. Habgadon 96 

Gardiner: v. Williamson 620 

Gardner v. Keteltas 631 

Garner v. Hannah 638 

Garwood v. New York Cent. & H. 

R. R. Co 68 

Gerst V. St. Louis 52 

Gerzebek v. Lord 3S9 

Gibson v. Holdon 471 

Gibson v. Wells 664 

Gilbert v. Showerman 21 

Gildersleeve v. Hammond 53 

GiLLHAM V. Madison County R. 

R. Co lOS 

Gillis V. Chase. 69 

Gilmer v. Mobile & M. R. Co 452 

Gihnore v. Driscoll 40 

Glenn v. Canby 376 

Glidden v. Second Ave. Inv. Co.. . 3S9 

Goodale v. Tuttle 104 

Goodhart v. Hyett 218 

Goodman v. Mayor of Saltash. . . . 176 

Goodson V. Richardson 10 

Goodtitle ex dem. Chester v. Al- 

ker & Elmes , 718 

Gormley v. Sanford 107 

Gower v. Postmaster General..'.. 367 

Graham v. Walker 181 

Graves v. Berdan 579 

Gray v. Cambridge 213 

Green v. Sun Co 143 

Greene v. Canny 225 

Greenleaf v. Francis 124 

Gregory v. Bush Ill 

Grey V. Cuthhertson 343 

Grubb V. Bayard 155 

Gbubb v. Guilford 175 

Hagar v. Buck 378 

Hague V. Wheeler 136 

Hahn v. Baker Lodge 242 

Hahleman v. Bruckluirt 136 

Hale V. Mcl^ea 135 



XIV 



TABLE OF CASES 



Page 

TTcill V. Brewing Co 200 

Hall V. Ewin 498 

Hall V. Lawrence 167 

Hall V. 'Norfolk 40 

Hall V. Sterling Iron & Ry. Go 215 

H anbury v. Jenkins 200 

Hancock v. Austin 636 

H annahalson v. Sessions 3 

H annicJcer v. Lepper 53 

Hansen v. IMeyeb 350 

Harbcr v. Evans 236 

Hard v. Boise City Irrigation d 

Land Co 197 

Harmer v. Bean 558 

Harrison v. Rutl<ind 723 

Harsha v. Reid 442 

IJaricood v. Benton 130 

Hathorn v. Natural Carbonic Oas 

Co 131 

Huicley v. Sheldon 97 

Hayden v. Tucker 23 

Haves V. New York Gold Mining 

Co. of Colorado 423 

Haves v. Waldron 83 

Hay ford v, Spokesficld 282 

Havwood V. Brunswick Perma- 
nent Benefit Bldg. Soc 496 

Heartt v. Kruger 242 

Heflin v. Bingham 316 

Hendricks v. Staek 235 

Hennessy v. Carmony 23 

Herman v. Roberts 222 

Hekne v. Bembow 664 

Hewlins v. Shippam 304 

Heywood v. Fulmer 162 

Hickman v. Maisey 723 

Hill V. Burgess 687 

Hill V. Huron 473 

Hill V. Tupper 197 

Hill v. Tuppee 90 

Hinsdale v. Humphrey 412 

Hoare v. Board of Works 200 

Uodgkins v,. Farrinyton 314 

Hoffman v. Savage 200 

Hole v. Baklow 15 

Holfofd V. Hatch 395 

Hollander v. Central Metal & Sup- 
ply Co 376 

Holmes V. Goring 302 

Home Life Ins. Co. of Brooklyn v. 

Sherman 5S3 

Hope V. Osborn 154 

Horn V. Miller 435 

Hoskins v. Robins 164 

Howell V. King 201 

Hubbard v. Bell 706 

HuBBAED V. Concord 87 

Hudson V. Crippi 524 

Humphries v. lirogden 49 

Hunt V. Gas Co 13 

Huntington v. Asher 173 

Uurd V. Curtis 432 



Page 

Hurdman v. North Eastern E. Co. 116 

Hurst V. Picture Theaters 331 

Hurxthal v. St. Lawrence Boom & 

Lumber Co 438 

Ilo Oil Co. V. Indiana Natural Gas 

d OU Co. 140 

Indiana Natural Gas & Oil Co. v. 

Hinton 426 

Irving v. Turnbull 486 

IVINS V. ACKEBSON 276 

Jackson v. Bruns 242 

Jackson v. Pesked 140 

Jackson <£• Shark v. Philadelphia 

W. d B.R. R. Co 323 

James v. Stevenson 293 

Jenkins v. Lykes 316 

Jennison v. Walker 293 

Johnson v. Barton 331 

Johnson v. Johnson 648 

Johnson v. Sherman 387 

Johnstoion Iron Co. v. Cambria 

Iron Co 163 

Jones V. Chappel 147 

Jones V. Conn 71 

Jones v. Earl of Tankeetville. . 335 

Jones V. Grover 387 

Jones v. Hill 664 

Jones V. Parker 387 

Jones V. Pritchard 218 

Jones v. Tankeeville (Earl of) 335 

Jordeson v. Gas Co 54 

Jourdain v. Wilson 373 

Joyner v. Weeks 405 

Kastner v. Bens; ' 331 

Kavanagh v. Barber 11 

Keepers & Governors of the Pos- 
sessions, etc., of Harrow School 

V. Alderton 643 

Kellogg v. Robinson 443 

Kelly V. Keys 163 

Kennedy v. Owen 490 

Keppell v. Bailey 90 

Keenochan v. New York Ele- 
vated R. R. Co 148 

Kettle River R. Co. v. Eastern R. 

Co. of Minnesota 510 

Kimpton v. Wood, 164 

King v. Allen 316 

King, The, v. Hermitage 302 

Kinnaird v. Standard Oil Co. 132 

Klie V. Von Broock 653, 681 

Knolle, Case of 562 

Knowles v. Dow .'.... 180 

Kray v. Muggli 262 

Lappan v. Glunz 237 

I^awrence v. French 622 

Lawrence v. White 589 

Lawson v. Mowey 716 



TABLE OF CASES 



XV 



Page 

Lawton v. Steele 717 

Leishman v. White 590 

Lemiiion v. Webb 3 

Leprell v. Kleinschmidt 4 

I-ewis V. Gollner 538 

Lev: if v. Janes 723 

I^wis Bowles, Case of 688 

Lexington Bank v. Salling.,.. 470 

Lexington Lodge v. Deal 240 

Lidc V. Eadley 302 

Liggins V. luge 305 

Lincoln v. Burrage 486 

Lincoln v. Davis 718 

Little Rock & Ft. S. R. Co. v. 

Chapman 120 

LiTTLEWooD V. Jackson 408 

London v. R'iggs 209 

London County Council v. Allen. . 535 
LoED Stkaffobd v. Lady Went- 

WORTH 557 

JjOthrop V. Thayer 660 

Loud V. Pendergast 545 

Loyd V. Langf ord 564 

Ludwell v. Newman 623 

Lund V. Neic Bedford 145 

Lushington v. Boldero 694 

LUTHEB V. WiNNISIMMET CO 105 

Lybbe v. Eart 353 

Lydick v. Baltimore £ 0. R. R. Co. 420 
Lyon V. Parker 442 

McAdam v. Benson Logging d 

Lumbering Co 282 

McCartney v. Londonderry, etc., 

R. Co 69 

McClure v. Leaycraf t 541 

McCormick v. Stowell 361 

McCrea v. Marsh 313 

McCullough V. Board Exchange 

Co 287 

McDonald v. May . 574 

McEacharn v. Colt on. 361 

McGhee v. Tennessee Copper Co. 29 

McKenna v. Eaton 242 

Mackin v. Haven 475 

McMurphv v. JNIlnot 569 

McNeil V. Kendall 398 

Macouiber v. Godfrey 95 

McFheters v. Moose River Log 

Driving Co 712 

Madison v. Ducktown Sulphur, 

Copper & Iron Co 29 

Magoon v. Eastman 422 

Mander v. Falcke 540 

Manteuf el v. Wetzel 113 

Manufacturers' Ga^ d- Oil Co. v. 

Indiana Natural Gas & Oil Co.. . 140 

Marshall v. Mosely 55S 

Martin v. Martin 554 

Martyn v. Williams 42G 

Maryland d P. R. Co. v. Silver. . . 445 

Mascal, Case of 391 

' Big. Rig UTS — b 



Page 
Mason v. Shrewsbury & H. R. Co. 256 

Mason v. Smith 389 

Massot V. Moses 162 

Master v. Hansard 511 

Masury v. Southworth 343 

Matheson v. Ward 259 

Matures v. Wcsticood 352 

Mayor, etc., of Congleton v. Patti- 

son 353 

Meeker v. East Orange 125 

Melnis V. Pabst Bi-ewing Co 655 

Meng V. Coffey 64 

Meng v. Coffey 75 

Merrick Water Co. v. Brooklyn. . . 130 

Messinger. Appeal of 73 

Middlcpcld v. Church Knitting 

Mills Co 269 

MiDDLEFIELD V. KNITTING Co 487 

MiDDLETON V. BOOMING CO 708 

Miller v. Clary 45S 

Miller v. Edison Electric Illumi- 
nating Co 147 

Miller v. Greenwich Tp 336 

Miller v. Prescott 502 

Milne, Appeal of 236 

Minnesota Loan d Trust Co. v. St. 
Anthony Falls Water-Power Co. 76 

Mi7isJiull V. Oakes 352 

MOGG V. MOGG 8 

Mooers v. Wait 687 

Moore v. Mansfield 627 

Moore v. Rawson 277 

MooKE V. Sanborne 707 

Morey v. Fitzgerald 729 

Morris v. Cairncross 662 

Harris v. Kennedy 388 

Morrow v. Hassclman 528 

Morse v. Aldrich 429 

Moss Point Lumber Co. v. Harri- 
son County 649 

MoTT V. Oppbnheimek 484 

Mountjoy. Case of 153 

Murphy Chair Co. v. American 
Radiator Co 225 

National Union Bank at Dover v. 

Segur 446 

Nave V. Berry 672 

Neale v. Mackenzie 617 

Negus v. Becker 235 

Newcomb v. Harvey 562 

Neichoff V. Mayo 200 

'Newman v. Anderton 633 

Newton v. Wilson 635 

New York Rubber Co. v. Rothery 75 

Nichols V. Peck 29S 

NiCKLiN V. Williams 38 

Nitzell V. Paschall 287 

Noonan v. Albany 106 

Noonan v. Pardee 39 

Norcrbss v. James 506 



XVI 



TABLE OF CASES 



Pago 

Norman v. Wells 379 

Northern Pac. R. Co. v. McClure. . 369 
yuttal V. Bracewell 92 

O'Gonnetl v. East Tennessee, V. d 

Q.R.Co 103 

O&iLviE V. Hull 608 

Oririinal Hartlepool Co. v. Gibbs. . 715 

ORiiEKOD V. Mill Co 70 

Oster V. Brae 323 

Owen V. Hyde 644 

Packington y. Packington 692 

Page V. Parr 593 

Pakenham, Case of 427 

Palmer v. Edwards 373, 396 

Parish v. Yv'niTNEY 492 

Park v. White 145 

Parker v. Nightingale 521 

Parks V. Bishop 203 

Parks V. Boston 585 

Parrott v. Barney 672 

Partridge v. Gilbert 234 

Partridge v. Scott 51 

Patten v. Deshon 402 

Paul v. Hazelton 336 

Paxton V. Kenned If 638 

Peabody Heights Co. of Baltimore 

City V. Wilson 529 

Pearson v. Rolfe 709 

Peck V. Herrington 113 

Pence v. Carney 129 

Pendleton v. Dyett 600 

Pennsylvania Goal Co. v. Sander- 
son 87 

Pennsylvania S. V. R. Co. v. 

Reading Paper Mills 229 

Percival v. Colonial Inv. Co 486 

Perrot v. Perrot 679 

Peter v. Casioell 261 

Pfeiffer v. Grossman 1 

Phillips V. Rhodes 165 

Picliering v. Rudd 3 

Pierce v. Keator 176 

Pitts V. Lancaster Mills 64 

Pittsburgh, Ft. W. & C. Ry. v. 

Peet 228 

Pixley V. Clark 130 

Pohlman v. Chicago, M. & St. P. 

R. R 113 

Pollock V. Cleveland Ship Bldg. 

Co 712 

Pomfret v. Ricroft 219 

Pope v. Devebeux 299 

Popplewell V. Hodkinson 54 

Post V. Kearney 369 

Potter V. North 154 

Potts V. Clarke 144 

Potts-Thompson Liquor Co. v. 

Capital City Tobacco Go 600 

PouU V. Mockley 193 



Page 

Pratt V. Sweetser 286 

Pridgeon v. Excelsior Boat Club . . 596 

Pue V. Pue 282 

Purvis v. Shuman. . , 349 

Putzel V. Drovers' & Mechanics' 

Nat. Bank 237 

Pynchon v. Stearns 644 

Queen, The, v. Ghorley 280 

R. v. Bucknall (Sir J.) 269 

R, V. Sib J. Bucknall 269 

Race V. Ward 177 

Randall v. Latham 502 

Rawstrom v. Taylor 107 

Rea V. Algren 613 

Red River Roller Mills v. Wright 86 

Reilly v. Booth 230 

Renals v. Cowlishaw 513 

Rerick v. Kern 318 

Reynolds v. Union Sav. Bank 236 

Richards v. Dower 8 

Richardson v. Pond 200 

Ricluirdson v. Tobcy 486 

Ricketts v. Enfield Church War- 
dens 382 

Rider v. Smith 268 

Ri7ig V. Walker 193 

Ritger v. Parker 300 

Roath V. Driscoll 124 

Roberts v. Gicyrfai Dist. Council 76 

Robins v. Cox 562 

Robinson v. Hartopp 165 

Roche v. Ulman 475 

Rockingham v. Penrice 556 

Rogers v. Atlantic, G. & P. Co 672 

Rogers v. Hosegood 521 

Rogers v. Stewart 291 

RoLT V. Lord Somebville. .. .681, 697 

ROLT V. SOMER'VILLE (L0RD)..6S1, 697 

Romer v. St. Paul City R. Co 17 

Ross V. Butler 13 

Rotherham v. Green 163 

Ruddick v. St. Louis, K. & N. W. 

R. Co 464 

Rust v. Low 271 

Rushmer v. Polsue 21 

Russman v. Ganster 635 

Rylands v. Fletcher 130 

St. Helen's Smelting Co. v. 

Tipping 41 

St. Louis, I. M. & S. Ry. v. 

O'Baugh 452 

St. Louis National Stockyards v. 

Wiggins Ferry Co 323 

Salmon v. Matthews 635 

Salop (Countess) v. Crompton 659 

S-\MPSON v. Easterby 382 

Sampson v. Easterby 382 

Sandebs v. Mabtin 251 



TABLE OF CASES 



XVll 



Page 
SandivicTi (Earl) v. Oreat North- 
ern R. Go 69 

Sayres v. Collyer 545 

Schaefer v. Marthaler 97 

Schermerliorn v. Buell 684 

Scholes V. Eargreaves 165 

Schuster v. Alhrecht. Ill 

Seabrook v. Moyer. '. 583 

Selhy V. Graves .' 636 

Sharp v. Ropes 527 

Shaughiicssey v. Leary 205 

Shepardson v. Perlcins 266 

Sherred v. Cisco 246 

Shirley v. Crabb 240 

Simpson v. Godmanchester 200 

Simpson v. Savage 141 

Sk ALLY V. SnuTE 599 

Skelton v. Skelton 693 

Shull V. Glenister 203 

Sloan V. EolUday 205 

Smelting Co. v. Tipping 26 

Smiley v. Van Winkle 571 

Smith V. Andrews 717 

Smith V. Barber 628 

Smith V. Boston & M. E. R 298 

Smith V. Daii 559 

Smith V. Gatewood 176 

Smith V. Giddy 3 

Smith V. McEnany 598 

Smith V. Raleigh 593 

Smith V. Smith 2 

Smith V. Thackerah 40 

Smith v. Youmans 264 

Snow v. Parsons 87 

South Metropolitan R. Co. v. 

Eden 202 

Southworth v. Perring 479 

Spaulding v. Grundy 249 

Spencer's Case 341 

Sposato V. ]\'ew York 152 

Springer v. Darlington 236 

Springer v. Dc Wolf .''.91 

Stackpole v. Healy 719 

Standard Oil Co. v. Buchi 190 

Standen v. Chrismas 414 

Stanislaus Water Co. v. Bachman 268 

Starr v. Jackson 145 

State v. Roberts 716 

Steiner v. Peterman 200 

Stevenson v. Lumbar d 585 

Stewart v. Winters 537 

Stewart v. Childs Co 611 

Stewart v. Pinkelstone 546 

Stockport Waterworks Co. v. Pot- 
ter 88 

Stoddard v. Emery 392 

Stokes V. Cooper 593 

Stokoe V. Singers 280 

Storandt v. Vogel & Binder Co.. . . 373 

Stotler V. Rochelle 21 



Page 

Stbaffoed (Lobd) v. Wentwobth 

(Ladt) 557 

Strong v. Benedict 216 

Sturgeon v. Wing field 373 

Sturges V. Bridgiuan 32 

Sullens V. Chicago, R. I. <£ P. R. 

Co 103 

Susquehanna Fertilizer Co. v. 

Spangler 29 

Stcansea v. Thomas 562 

SWETT V. CUTTS 127 

Swinden W. W. Co. v. Wilts, etc., 
Canal Co S3 

Talbott V. Grace , 179 

Tollman v. Coffin. 343 

TapUng v. Jones 290 

Tatem v. Chaplin 352 

Taylor v. Fickas 103 

Taylor v. Oicen .' 380 

Taylor v. Whiteheard 219 

Teiinant v. Goldmin 134 

Thomas v. Hayward 379 

Thotnas v. Thomas 302 

Thomas v. Wightman 559 

Thompson v. 'Madsen 299 

Thompson v. New Haven Water 

Co 99 

Thompson v. Rose 343, 419 

Thorn v. Wilson 242 

Threer v. Barton 569 

Thunder Bay River Booming Co. 

V. Speedily 706 

Tliurston v. Minke 355 

Tipping v, St. Helen's Smelt- 
ing Co 15 

ToMLiNSON V. Day 621, 624 

Tottle V. Howell 155 

Trinidad Asplmlt Co. v. Ambard. . 54 

Truloek v. iterte 23 

Trustees of Columbia College v. 

Lynch • • 496 

Trustees of Columbia College 

V. Thachek 542 

Tucker v. Eldred. 726 

Tulk v. Moxhay 494 

Timier v. Wright 693 

Twynam v. Pickard 405 

Tyler v. Wilkinson 122 

Tyrringham, Case of ' 170, 171 

Tyrringham, Case of 104 

Udal V. TJdal G7S 

Undericood v. WaJdron 120 

University v. Tucker 653 

University Club of Chicago v. Dea- 

kin ^13 

Upton V. Hosmer 361 

Vane v. Barnard (Lord) 092 



XVlll 



TABLE OP CASES 



Page 

Vane v. Lord Barnard G92 

Van Rensselaer v. Hays 441 

Van Rensselaer v. Radcliff 11?, 

Vail Rensselaer v. Read 566 

Van Sant v. Rose 535 

Veghte v. Raritan Water Power 

Co 309 

Tenniljjn v. Chicago, M. & St. P. 

R. Co 232 

Vernon v. Smith 361 

Verplanck v. Wright 353 

Village of Dicight v. Hayes 309 

Vyvyan v. Arthur 364 

Waite V. O'Neil 581 

Walker's Case 549 

Wall V. Hinds 384 

Wall V. Pittsburgh Harbor Co.... 715 

Wallaks v. Pfeil 51 

Walsh V. Fussel 373 

Walsh V. Packard 424 

Ward V. Edesheimer G32 

Ware v. Allen 75 

Warr V. London County Council.. 313 
Washington Natural Gas Co. v. 

Johnson 384 

Watson V. Bioren 205 

Watson V. Eunkins 562 

Wattles V. South Omaha Ice & 

Coal Co ; 577 

Webb v. Bird 33 

Webb V. Bird 200 

Webb V. Russell 566 

Webb V. Portland Mfg. Co 58 

Weekly v. Wildman. 178 

Weil V. Hill 517 

Welcome v. Upton 163 

West v. Sink 554 

West V. Taylor 95 

Westi)hal v. New York .: 129 

WiiALEY V. Laing 90 

Wheatley v. Chrisman 215 

Wheeler v. Schad 432 

Wheelock v. Jacobs 200 

White V. Grand Hotel, Eastbourne 207 



Page 

White V. Molyneux 575 

White V. Southern Hotel Co 379 

White's Bank of Buffalo v. Nichols 285 

Whitney v. Union R. Co 357 

Whittenton Mfg. Co. v. Staples. . . 

270, 505 

Whittier v. Winkley 209 

WiCKHAM V. Hawker 179 

Wiggins v. Water Co 72 

Wiggins Ferry Co. v. Ohio & M. 

R. Co 462 

Willey V. Laraioay 677 

Williams v. Earle 358 

Williams v. Hayicard 563 

Williams v. James 201 

Willoughby v. Lawrence 194 

Willow River Club v. Wade 716 

Wills V. Summers 393 

WiLMARTU V. Woodcock 5 

Wilmot V. Yazoo & M. V. R. Co. . . 232 

Wilson V. Edmonds 662 

Wilson V. Hart , . . . . 495 

Wilson V. Mackret 163 

Wilston V. Pilkney 563 

Winfield v. Henniug 529 

WinMow V. Vallejo 220 

Winter v. Brockwell 290 

Winterfield v. Stauss 370 

Wiseman v. Lueksinger 328 

Wombell v. Belasyse 693 

Wood V. Lake 303 

Wood V. Leadbitter 309 

Wood V. Saunders 209 

Wood v. Veal 141 

Wood V. Waud 253 

Woodall V. Clifton 374 

Woodin V. Wentworth 63 

Woodward v. Seely 325, 326 

Wooliscroft V. Norton 464 

Wyatt v. Harman 50 

Yellowly v. Gower 664 

Yerex v. Eineder 109 

Young v. Spencer 140 

Young v. Star Co 293 



CASES ON RIGHTS IN LAND 



PART I 
RIGHTS INCIDENTAL TO POSSESSION 



CHAPTER I 
POSSESSION 



PFEIFFER V. GROSSMAN. ' 

(Supreme Court of Illinois, 1853. 15 111. 53.) 

This cause was tried before Underwood, Judge, at the March term, 

1853, of the St. Clair Circuit Court. 

Treat, C. J. This was an action of trespass quare clausum fregit, 
brought in 1853, by Pfeiffer against Grossman. The plea was, not 
guilty. It appeared in evidence, that the plaintiff had title to a certain 
tract of land ; that according to a survey made in 1851, a fence claimed 
by the defendant was on this tract; the fence inclosed about half an 
acre of the tract, part of which was in timber, and the rest in culti- 
vation; the fence was built by McGuire, who was in possession pre- 
vious to the defendant; prior to the survey there was some difficulty 
between the plaintiff and defendant as to the boundary line, the latter 
claiming to the fence; the defendant was dissatisfied with the survey, 
and continued in possession of the ground up to the fence, although 
notified by the plaintiff to remove the fence ; after the suit was brought, 
the defendant caused another survey to be made, which agreed with 
that made in 1851. It was stated by the plaintiff's counsel, that the 
suit was brought for the purpose of establishing the boundary line 
between the parties. The court refused to give these instructions : 
"That the putting a fence or letting it stay on the land of another is 
a trespass in -the eye of the law, for which the aggrieved person is 
entitlp,d to at least nominal damages ; that the ploughing up of an- 
other man's land and cultivating it, although the land may thereby be 
improved, is still a trespass in law, for which the person aggrieved is 

BiG.RlGHTS — 1 



2 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

entitled to at least nominal damages." The jury found the issue for 
the defendant, and the court rendered judgment on the verdict. 

The instructions not only asserted correct legal principles, but 
they were strictly applicable to the case. If a party puts a fence on 
another's land, or plows up the soil, he is liable as a trespasser. Such 
acts are a violation of the owner's right of possession, to redress which 
the law gives him an action. And the action is maintainable, although 
the owner is not substantially injured. He is entitled to nominal dam- 
ages for the intrusion upon his possession. The defendant cannot 
defeat the action, by showing that the plaintiff is not materially preju- 
diced, or even that he is actually benefited. A right is invaded, and a 
wrong committed, and that is a sufficient basis for an action. Every 
unauthorized entry on the land of another is a trespass, for which 
an action will lie. The law implies damage to the owner, and in the 
absence of proof as to the extent of the injury, he is entitled to re- 
cover norninal damages. Especially is this the case, where the suit is 
brought for the purpose of settling a question of right. Dixon v. Clow, 
24 Wend. (N. Y.) 188 ; Pastorius v. Fisher, 1 Rawle (Pa.) 27 ; Bagby 
v. Harris, 9 Ala. 173 ; Plumleigh v. Dawson, 1 Gilman, 544, 41 Am. 
Dec. 199; Bolivar Manuf. Co. v. Neponset Manuf. Co., 16 Pick. 
(Mass.) 241; Whipple v. Cumberland Manuf. Co., 2 Story, 661, Fed. 
Cas. No. 17516. 

The judgment is reversed, and the cause remanded. 

Judgment reversed. 



SMITH V. SMITH. 
(Supreme Judicial Court of Massachusetts, 1872. 110 Mass. 302.) 

Tort. The declaration alleged that the defendant forcibly entered 
the plaintiff's close and broke down a fence, and also built a part of 
a barn upon the close, and thereby expelled and put out the plaintiff 
from possession and occupation of a part of the close, and kept and 
continued him so kept out and expelled from said part of the close. 
Trial in the Superior Court, before Bacon, J., who, after a verdict 
for the defendant, allowed the following bill of exceptions : 

"The plaintiff offered to prove that the eaves or jet of a barn, al- 
leged to have been built and erected upon the plaintiff's close by the 
defendant, extended over on to the close from fifteen to eighteen inch- 
es, but the judge excluded the evidence. * * * 

"The jury returned a verdict for the defendant, and the plaintiff 
alleged exceptions." 

Morton, J.^ This is an action of tprt in the natuf-e of trespass 
quare clausum f regit. . The plaintiff in his declaration, among other 
acts of trespass, alleges that the defendant built a part of his barn 

1 The statement of facts is abridged and part of the opinion is omitted. 



Ch. 1) POSSESSION 3 

upon the plaintiff's close, and thereby put and kept plaintiff out of the 

possession and occupation of a^part of the close. We think it was 

competent for the plaintiff to prove that the eaves of the defendant's 

barn projected over the plaintiff's close. Projecting his eaves over 

the plaintiff's land is a wrongful act on the part of the defendant 

which, if_continued for twenty years, might give him_a_title to the land 

by ad verse occupation. It is a wrongful occupation of the plaintiff's 

land for~wIiIch he niay maintain an action of trespass. Codman v. 

Evans, 7 Allen, 431; Carbrey v. Willis, Id. 364, 83 Am. Dec. 688. 
* * , * 

Exceptions sustained.^ 



BUTLER v. FRONTIER TELEPHONE CO. 

(Court of Appeals of New York, 1906. 186 N. Y. 4S6, 79 N. E. 716, 11 I* H. 
A. [N. S.] 920, 116 Am. St. Rep. 563, 9 Ann. Cas. S58.) 

Appeal from a judgment of the Appellate Division of the Supreme 
Court in the Fourth Judicial Department, entered December 6, 1905, 
affirming a judgment in favor of plaintiff entered upon a decision of 
the court at a Trial Term without a jury. 

This is an action of ejectment, which was tried by consent before 
the court without a jury. The trial judge found as facts that "the 
defendant on or about January 1, 1903, without the consent of the 
plaintiff and without lawful authority, entered upon" his premises 
in the city of Buffalo "and stretched a wire over and across the same 
in the manner described in the complaint and maintained said wire 
upon said premises until January 10, 1903, when the defendant re- 

2 A. thrust his arm over the division fence betn-een his lot and B.'s. Held, 
A. is guilty of a trespass. Hannabalson v. Sessions, 116 Iowa, 457, 90 N. W. 
93, 93 Am. St. Rep. 250 (1902). 

"I recollect a case, where I held that firing a gun loaded with shot into 
a field was a breaking of the close. The learned judge on the circuit with 
me doubted upon the point, but many with whom 1 afterwards conversed on 
the 'subject thought I was right; and the .judge liimself, who at first dif- 
fered from me, was afterwards of the same opinion ; but I never yet heard 
that firing in vacuo could be considered as a trespass. No doubt, if you 
could prove any inconvenience to have been sustained, an action might be 
maintained; but it may be questionable whether an action on the case 
would not be the proper form. Would trespass lie for passing through the 
air in a balloon over the land of another V" Elleuborough, C. J., in Picker- 
ing V. Rudd, 1 Stark. N. P. 56, 58 (1S15). 

Compare Clifton v. tfJury, 4 Times Law Rep. 8 (1SS7) ; Whittaker v. Stang- 
vick, 100 Minn. 386, 111 N. W. 295, 10 L. R. A. (N. S.) 921, 117 Am. St. Rep. 
703, 10 Ann. Cas. 528 (1907). . ^ „ , , . „ 

The branches of trees growing on A.'s land projected over B. s land. B. 
cut the projecting part without notice to A. Hold, A. has no cause of action 
against B. Ijcmmon v. Webb, [1895] A. C. 1. 

' ""If trees projecting over the boundary are not in fact doing any dam- 
a^'e it may be that the plaiutiif's only right is to cut back the overhanging 
portions; but where they are actually doing damage I think there must be 
a right of action." Kennedy, J., iu Smith v. Giddy, [1904] 2 K. B. 448, 451. 
Com])are Fay v. Prentice, 1 C. B. 828 (1845). 



4 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

moved the said wire entirely from plaintiff's said premises." Ac- 
cording to the allegations of the complaint the wire was strung "about 
30 feet from the surface of the ground on the easterly side and slant- 
ing to about 20 feet on the westerly side," reaching "across the en- 
tire width of said premises." The trial judge further found that 
"the plaintiff has been in possession of the premises described in the 
complaint at all times mentioned therein and since, except that por- 
tion tliereof occupied by the defendant with said wire during the 
period specified." The damages sustained b)^ the plaintiff" were as- 
sessed at six cents for "the withholding by the defendant of that por- 
tion of the premises occupied by said wire for the period above speci- 
fied." There was neither allegation nor evidence that the wire was 
Supported by any structure standing upon the plaintiff's lot. The 
action was commenced on the 5th of January, 1903. The court found 
as a conclusion of law that the plaintiff", as the owner in fee of the 
premises in question, "was entitled at the commencement of this ac- 
tion to have said wire removed from said premises, and is entitled 
to judgment against the defendant so declaring, and for six cents 
damages for withholding said property and for the costs of this ac- 
tion. * * * " Xhe judgment entered accordingly was affirmed on 
appeal to the Appellate Division by a divided vote, and the defendant 
now comes here. 

Vann, J, (after stating the facts). The question presented by this 
appeal is whether ejectment will lie when the soil is not touched, Jbut 
j)art of the space a few feet above the soiris"'occupied by a telephone 
wire unlawfully strung by the defendant across the plaintiff's prem- 
ises ? This question has never been passed upon by the Court of Ap- 
peals, nor by the Supreme Court, except in the decision now /before 
as for review. Questions similar, but not identical, as they related 
to overhanging eaves, projecting cornices, or leaning walls, were de- 
cided in favor of the defendant in Aiken v. Benedict, 39 Barb. 400, 
and Vrooman v. Jackson, 6 Hun, 326, and in favor of the plaintiff 
in Sherry v. Frecking, 11 N. Y. Super. Ct. 452. In Leprell v. Klein- 
schmidt, 112 N. Y. 364, 19 N. E. 812, the questxon as to the effect of 
projecting eaves was alluded to, but not decided, because there was in 
that case "a. physical entry by the defendant upon tlie land of the plain- 
tiffs and an unlawful detention of its possession from them." 

The precise question before us does not appear to have been passed 
upon in any other state, and upon the cognate question relating to 
projecting cornices and the like the authorities are divided. Some 
hold that ejectment will lie because there is an actual ouster or dis- 
seisin. Murphy v. Bolger, 60 Vt. 723, 15 Atl. 365, 1 L. R. A. 309 ; Mc- 
Court v. Eckstein, 22 Wis. 153, 94 Am. Dec. 594; Stedman v. Smith, 
92 Eng. C. L. 1. Others hold that there is not such a disturbance of 
possession as to sustain an action in that form. Norwalk H. & L. Co. 
V. Vernam, 75 Conn. 662, 55 Atl. 168, 96 Am. St. Rep. 246; Rasch v. 
Noth. 99 Wis. 285, 74 N. W. 820, 40 L. R. A. 577, 67 Am. St. Rep. 858. 



Ch. 1) POSSESSION 5 

The case last cited does not overrule the earlier' case in Wisconsin, 
but proceeds upon the theory that the aerial space was occupied by 
the projecting eaves of both parties, one above the other, on op- 
posite sides of the boundary line. Some of the cases hold that a court 
of equity may order the removal of a projection without deciding 
whether ejectment will lie or not. Thus, in Wilmarth v. Woodcock, 
58 Mich. 482, 485, 25 N. W. 475, it was decided that equity would 
require the removal of a projecting cornice, because "no remedy at 
law is adequate, owing to the uncertainty of the measure of damages, 
to afford complete compensation." But, as the learned court continu- 
ed : "No person can be permitted to reach out and appropriate the 
property of another, and secure to himself the adverse enjoyment and 
use thereof, which, in a few years, will ripen into an_ absolute, owjierr. 
slTip_by^ adverse possession." See, also, Plummer v. Gloversville Elec- 
^tric CoT; 20Xpp. Div. 527, 47 N. Y. Supp. 228. 

While some of the cases may be harmonized by resort to the dis- 
tinction between "disseisins in spite of the owner and disseisins at his 
election," the main question is open, and must be determined upon prin- 
ciple. The defendant concedes that the plaintiff has a remedy, but 
insists that it is an action for trespass, or to abate a nuisance, while 
the plaintiff claims that ejectment is a proper remedy and one of espe- 
cial value, as it entitles him, if he needs it, to a second trial as a matter 
of right and to costs, even if he recovers less than $50 damages. Code 
Civ. Proc. §§ 1525, 3228. 

An action of ejectment, according to the Code, is "an action to 

recover the immediate possession of real property." Code Civ. Proc. 

""I^l^-S, subd. 20. While the statute to some extent regulates the 
procedure, it did not create the action, and for tlie principles which 
govern it resort must be had to the common law. Code Civ. Proc. §§ 
1496 to 1532; Real Property Law, Laws 1896, pp. 560, 594, c. 547, 
§§ 1, 218; Rev. St. (2d Ed.) p. 303, pt. 3, c. 5, tit. 1, § 3. _ Without en- 
tering into the somewhat involved and perplexing learning upon the 
subject, it is sufficient to say that, as all the authorities agree, the plain- 
tiff must show that he was formerly in possession, that he was ousted 
or deprived of possession, and that he has a right to re-enter and take 
possession. It is admitted by the pleadings that when the wire was 
put up the plaintiff was in possession of the entire premises, and that 
he was entitled to the immediate possession thereof as owner when 
the action was commenced. The serious question is whether he was 
deprived of possession to the extent necessary to authorize ejectment. 
While ouster is essential to the maintenance of the action, it need not 
be entire or absolute; for it is sufficient if the defendant is in partial 
possession of the premises while the plaintiff is in possession of the 
remainder. Sullivan v. Legraves, 2 Str. Cases, 695 ; Doe v. Burt, 
1 T. R. 701; Lady D'Acres Case, 1 Lev. 58; Rowan v. Kelsey, 
18 Barb. 484; Otis v. Smith, 26 Mass. (9 Pick.) 293; Gilliam v. 
Bird, 30 N. C. 280, 49 Am. Dec. 379; Reynolds v. Cook, 83 Va. 817, 



6 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

3 S. E. 710, 5 Am. St. Rep. 317; McDowell v. King, 4 Dana (Ky.) 67; 
Adams on Ejectment, 27; Newell on Ejectment, 38; Warvelle on 
Ejectment, 22. Mines, quarries, mineral oil, and an upper room in a 
house are familiar examples. Is the unauthorized stringing of a wire 
by one person over the land of another an ouster from possession to 
the extent that th'e wire occupies space above the surface as claimed 
by the plaintiff, or a mere trespass or interference with a right inci- 
dental to enjoyment as claimed by the defendant? Was the plaintiff 
in the undisturbed possession of his land when a portion of the space 
above it was occupied by the permanent structure of the defendant, 
however small ? Was the space occupied by the wire part of the land 
in the eye of the law ? 

What is "real property" ? What does the term include so far as the 

action of ejectment is concerned? The answer to these questions is 

found in the ancient principle of law : "Cujus est solum, ejus est usque 

ad coelum et ad inferos." The surface of the ground is a guide, but 

not the full measure; for within reasonable limitations land includes 

not only the surface but also the space above and the part beneath. 

Co. Litt. 4a; 2 Blackstone's Comm. 18; 3 Kent's Com. (14th Ed.) 

*401. "Usque ad coelum" is the upper boundary, and, -while this 

may not be taken too literally, there is no limitation within the bounds 

of any structure yet erected by man. So far as the case before us 

is concerned, the plaintiff as the owner of the soil owned upvr-Hs to 

an indefinite extent. He owned the space occupied by the wuc, and 

Jiad the right to the exclusive possession of that space, which was uo^ 

personal property, but a part of his land. According to fundamental 

principles and within the limitation mentioned, space above land Js 

real estate the same as the land itself. The law regards the empty 

space as if it were a solid, inseparable from the soil, and protects it 

^^ from hostile occupation accordingly. If the wire had touched the 

. surface of the land in permanent and exclusive occupation, it is con- 

^L^ jC4^ ceded that the plaintiff would have been dispossessed pro tanto. A 

''ytMxX4 P^^^ °^* ^^^ premises would not have been in his possession, but in 

/ the possession of another. The extent of the disseisin, however, does 

not control ; for an owner is entitled to the absolute and undisturbed 

* possession of every part of his premises, including the space above, 

as much as a mine beneath. If the wire had been a huge cable, several 

inches thick and but a foot above the ground, there would have been a 

difference in degree, but not in principle. Expand the wire into a 

beam supported by posts standing upon abutting lots without touching 

the surface of plaintiff's land, and the difference would still be one 

of degree only. Enlarge the beam into a bridge, and yet space only 

would be occupied. Erect a house upon the bridge, and the air above 

the surface of the land would alone be disturbed. Where along the 

line of these illustrations would dispossession begin? What rule has 

the law to measure it by? How much of the space above the plaintiff's 

land must be subjected to the dominion of the defendant in order 



C^ y\L^ ~ 



Ch. 1) POSSESSION 7 

to effect a dispossession? To what extent may the owner be dis- 
possessed and kept out of his own before there is a privation of seisin? 
Unless the principle of "usque ad coelum" is abandoned, any physical, 
exclusive, and permanent occupation of space above land is an occu- 
pation of the land itself and a disseisin of the owner to that extent. 

The authorities, both ancient and modern, with some exceptions 
not now important, agree that the ability of the sheriff to deliver pos- 
session is a test of the right to maintain an action of ejectment. Jack- 
son v. Buel, 9 Johns. 298 ; Woodhull v. Rosenthal, 61 N. Y. 382, 389 ; 
Patch V. Keeler, 27 Vt. 252, 255; Warvelle on Ejectment, 34; Crabb 
on Real Property, 710; Butler's Nisi Prius, 99. "The rule now is 
that when the property is tangible, and an entr^' can be made and pos- 
session be delivered to the sheriff, this action will lie." Nichols v. 
Lewis, 15 Conn. 137. The defendant insists that the sheriff cannot 
give possession of space any more than he can deliver water in a 
running stream or "air whirled by the north wind." When the space 
over land is unoccupied, there is no occasion for delivery, because 
there is nothing to exclude the owner from possession. The sheriff, 
however, can deliver occupied space by removing the occupying struc- 
ture. All that he does to deliver possession of the surface of land, 
or of a mine under the surface, is to remove either persons or things 
which keep the owner out. He does not carry the plaintiff upon the 
land and thus put him in possession, but he simply removes obstruc- 
tions which theretofore had prevented him from entering. So, in this 
case, that officer can deliver possession by removing the wire, the 
same as he would if one end happened to be imbedded in the soil,, when 
no question as to the right to bring ejectment could arise. Where 
there is a visible and tangible structure by which possession is with- 
held, to the extent of the space occupied thereby ejectment will lie. 
because there is a disseisin measured by the size of the obstruction, and 
the sheriff can physically remove the structure and thereby restore 
the owner to possession. The smallness of the wire in question does 
not affect the controlling principle, for it was large enough to pre- 
vent the plaintiff from building to a reasonable height upon his lot. 
The prompt removal of the wire after the suit was brought could not 
defeat the action because the rights of the parties to an action at law 
are governed by the facts as they existed when it was commenced. 
Wisner v. Ocumpaugh, 71 N. Y. 113. 

The judgment should be affirmed, with costs. 

Judgment affirmed. 



r 



/- - 



8 EIGHTS INCIDENTAL TO POSSESSION (Pait 1 

RICHARDS V. DOWER. 
(Supreme Court of California, 1883. 64 Cal. 62, 28 Pac. 113.) 

Appeal from a judgment of the Superior Court of Nevada County. 

The action was brought to enjoin the defendant from const ructin g 
a tjjnnel tiirough a lot owned by the plaintiff in the city of Nevada. 
The construction of the tunnel was in progress at the commencement 
of the action, and extended, about fifteen feet into the lot. It was 
twenty feet below the surface, and would pass when completed one 
hundred and fifty feet through the lot. The dimensions of the tunnel 
do not appear, but the court finds that it was being constructed for 
the purpose of working and developing a quartz ledge, and conveying 
away the rock and other matter therefrom. A preliminary injunction 
was granted, but on the final hearing, the injunction was dissolved, 
and a judgment rendered for the defendant. The additional facts are 
sufficiently stated in the opinion of the court. 

Sharpstein, J. The court found that at the time of the commence- 
" ment of this action the defendant had excavated and projected a tun- 
nel under the lot of the plaintiff a distance of 15 feet, and was en- 
gaged in the further extension thereof, and threatened to continue 
the same, but that said tunnel has not affected, and will not, if com- 
pleted, affect, injuriously or otherwise, the surface ground of plain- 
tift''s said lot. There is a further finding "that the driving of the tun- 
nel was not, and will not, if completed, cause the plaintiff irreparable 
injury, or injure said lot in any way." And another "that the defend- 
ant is not insolvent." And, as a conclusii^n of law from the foregoing 
facts, the court found that the defendant was entitled to a dissolution 
of an injunction previously granted, and ordered judgment to be en- 
tered to that effect. From that judgment the plaintiff appealed, and 
the questions which the record presents are: (1) Did the court err in 
'■^ ■ its said conclusion of law? (2) Was the continuation or dissolution of 

the injunction by the court which granted it so much a matter of 
discretion as to preclude any interference here with the action of that 
court in the premises ? 

As late as Mogg v. Mogg, Dick. 670, Lord Thurlow was unable 
to find a precedent for granting an injunction to restrain a mere 
trespasser from cutting timber on another person's land. But in 
Flamang's Case, where a landlord of two closes had let one to a tenant, 
who took coal out of that close, and also out of the other, which was 
not demised, the difficulty was whether the. injunction should go as to 
both, and Lord Thurlow ordered it as to both ; and on the authority 
of that case Lord Eldon, in Mitchell v. Dors, 6 Ves. 147, granted "an 
injunction against the defendant, who, having begun to get coal in 
his own ground, had worked into that of the plaintiff." In Thomas 
V Oakley, 18 Ves. 184, Lord Eldon expressed the opinion that it had 



Ch. 1) POSSESSION ' 9 

then been settled in England that an injunction would be granted to 
restrain a mere trespasser from cutting timber 'or taking coal or lead 
ore from another person's land, and in that case he granted an in- 
junction to restrain the defendant from removing stone from the 
plaintiff's quarry, on the ground that the defendant was taking the 
substance of the inheritance, — removing that which was the plaintiff's 
estate. He said the difference in value between stone and coal or stone 
and lead ore could not be considered in that case. From which we 
infer that in his opinion the right to an injunction in such a case did 
not depend on the value of the substance which was threatened with 
removal, but upon the fact of its constituting the inheritance or estate 
of its owner; and, in that light, the kind or quality of the substance 
would be quite as immaterial as the value of it. 

And such we understand to be the rule in this state. In More v. 
Massini, 32 Cal. 594, the court says : "The gravamen is a threatened 
_trespass_upon land. The trespass is in the nature of waste, and it will 
be committed unless the defendant is restrained. Should the threat 
be fulfilled, the plaintiff would be deprived of a part of the substance 
of his inheritance, which could not specifically be replaced. In the 
class to which this case belongs no allegation of insolvency is neces- 
sary. The injury is irreparable in itself." Citing Mining Co. v. Fre- 
mont, 7 Cal. 322, 68 Am. Dec. 262; Hicks v. Michael, 15 Cal. 116; 
Leach v. Day, 27 Cal. 646 ; People v. Morrill, 26 Cal. 360. The findings 
show that the tunnel which the defendant is constructing through the 
plaintiff's land is of a permanent character. It disturbs the plaintiff's 
possession, and, jj[^ermitted to continue, will ripen into an easement. 
That, of itself, is sufficient to entitle him to an injunction. Poirier v. 
Fetter, 20 Kan. 47; Johnson v. City of Rochester, 13 Hun, 285; Wil- 
liams V. Railroad Co., 16 N. Y. 97, 69 Am. Dec. 651. The finding that 
the injury is not irreparable is inconsistent with the findings which 
describe the character of the work which it is sought to have enjoined. 
"The injury is irreparable in itself," and the solvency of the defendant 
is an immaterial circumstance. 

The findings leave no room for doubt as to the plaintiff's title to 
the premises, and that, coupled with the fact that the threatened in- 
jury is per se irreparable, entitles the plaintiff to the relief demanded 
in his complaint ; and we think the error committed by the court in 
dissolving the injunction should be corrected. Cases of palpable error 
or abuse of discretion are excepted from the rule under which this 
court declines to interfere with the granting, refusing, continuing, or 
dissolving of injunctions; and that rule applies more especially, if not 
exclusively, to preliminary injunctions. We do not think that it 
applies to a case in which an injunction is continued or dissolved after 
trial and findings upon all the material issues. In that case, as in any 
other in which the findings do not support the judgment, it should 
be reversed. Judgment reversed, and cause remanded, with directions 



10 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

to the court below to enter judgment on the findings that the injunc- 
tion issued in the first instance be perpetual, and that the plaintifif 
recover his costs. 

Myrick and Thornton, JJ., concurred.' 

3 See, further, as to equitable relief against trespass, Goodson v. Kichard- 
son, L. R. 9 Oh. App. 221 (1874) ; N. Y., etc., R. Co. v. Scovill, 71 Conn. 136, 
41 Atl. 246, 42 L. R. A. 157, 71 Am. St. Rep. 159 (1898) ; Norwalk Heating 
Co. V. Vernam, 75 Conn. 662, 55 Atl. 168, 96 Am. St. Rep. 246 (1903) ; Council 
Bluffs V. Stewart, 51 Iowa, 385, 1 N. W. 628 (1879) ; Hunter v. Carroll, 64 
N. H. 572, 15 Atl. 17 (1888) ; Crescent Co. v. Silver King Co., 17 Utah, 444, 
54 Pac. 244, 70 Am. St. Rep. 810 (1898). 



Ch. 2) AIB 11 

CHAPTER II 
AIR 



KAVANAGH v. BARBER. 

(Court of Appeals of Ne\v York, 1892. 131 N. Y, 211, 30 N. E. 235, 15 

L. R. A. 689.) 

This was an action to recover damages alleged to have been sus- 
tained by plaintiff by reason of an alleged nuisance created by defend- 
ant in operating a f actory_ for the manufacture of asphalt for paving 
purposes. 

Andrews, J. The trial judge Instructed the jury that, if they found 
that the vapors arising from the manufactory of the defendant con- 
stituted a nuisance, the plaintiff was entitled to recover to the extent 
of the damages sustained by him in the diminished enjoyment of the 
premises he occupied. The evidence justified a finding that the fumes 
arising from the asphalt penetrated the house, and subjected the plain- 
tiff and his family to great annoyance and discomfort. The air of 
the neighborhood was tainted with the odor, and there is some evi- 
dence that the plaintiff's wife and daughter became ill in consequence. 
The main damage, however, sustained by the plaintiff, according to 
the proof, was in the personal discomfort to which he was subjected 
in the occupation of the house. 

The case, in its legal aspects, is novel. The house was owned by 

the plaintiff's wife, and had been occupied for 14 years by the plain- 
tiff and his family, and was so occupied when the manufactory of the 
defendant was built. The plaintiff, so far as appears, had no lease 
or other interest in the realty. The family, as is to be inferred, lived 
in the house by sufferance of the wife. The possession of the house 
followed the* legal title. Both the occupation and the possession, in a 
legal sense, was that of the wife, and not of the husband. Martin 
V. Rector, 101 N. Y. 77, 4 N. E. 183. The husband supported the fam- 
ily. The question presented is whether, under these circumstances, a 
private action can be maintained by the husband for the discomfort 
caused by the offensive vapors. We find no precedent for such an 
action by a person so situated. Mr. Justice Blackstone defines a pri- 
vate nuisance to be "anything done to the hurt and annoyance of the 
lands, tenements or hereditaments of another," (3 Comm. 215), which 
definition, as said by Judge Cooley, (Cooley, Torts, p. 565,) embraces 
not a mere physical injury to the realty, but any injury to the owner 
or possessor as respects his dealing with, possessing, or enjoying it. 
Interferences with public and common rights, creating a public nui- 
sance, when accompanied with special damage to the owner of lands, 
also gives a right of private action. The public nuisance as to the 
person who is specially injured thereby in the enjoyment or value of 



12 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

his lands becomes a private nuisance also. Upon the evidence in 
this case on the part of the plaintiff, the defendant maintained a pub- 
lic nuisance. The air of the neighborhood was, for a long distance, 
infected with the disagreeable odor of the asphalt, and rendered resi- 
dence within the area uncomfortable, and life therein less enjoyable. 
Upon these facts, the plaintiff's wife, who owned and lived in the 
premises, sustained an actionable injury. Mills v. Hall, 9 Wend. 315, 
24 Am. Dec. 160; Francis v. Schoellkopf, 53 N. Y. 152. The trial 
judge charged the jury that the plaintiff could not recover for any 
injury to the premises, or for diminished rental value, for the reason 
that the title Avas in the wife. But the wife, who both owned and oc- 
cupied the realty, had her action for damage for the special injury 
in being deprived of the reasonable enjoyment of her property as her 
dwelling by reason of the nuisance. 

The judgment in this case adjudges that the husband also can 
maintain an action for the interference with his enjoyment of the 
premises. The principle upon which the judgment proceeds, if sus- 
tained, will greatly extend the class of actionable nuisances. We have 
found no case where a private action has been maintained for cor- 
ruption of the air by offensive odors, except by a plaintiff who was 
the owner of, or had some legal interest, as lessee or otherwise, in, 
land, the enjoyment of which was affected by the nuisance. The 
cases are numerous of actions on the case for nuisance created by a 
noxious trade, producing offensive and noisome odors, smoke, or 
noises, but, from the case of Morley v. Pragnell, Cro. Car. 510, down, 
X* -^A^friC ^^y have been brought and maintained (so far as we can discover) 
f^^ Q. by the owner or lessee of the realty affected by them. See Wood, Nuis. 
'fjL . yQ^UL p. 577. AVe perceive no legal distinction -between the plaintiff's situa- 
r / ^ tion and that of a lodger or guest in the house-, or why, if the plaintiff 

^"^■^^ ■^' can maintain an action, each member of the household cannot main- 
^^, j£^^ tain one likewise for her or his separate injury of the same kind. The 
\ plaintiff's situation appeals more strongly, perhaps, than the others 

for an extension of the rule as heretofore understood. But there was 
a public remedy open to him by public prosecution, and we think the 
public interests would not be subserved by opening the door to actions 
of this character, where the claimant has no property right to be pro- 
tected from infringement. The language of Chief Justice Shaw in 
Quincy Canal v. Newcomb, 7 Mete. (Mass.) 276, 39 Am. Dec. 778, is 
appropriate here : "He cannot have an action, because it would l ead 
to such a multiplicity of suits as to be itself an intolerable evil," We 
think the judgment is erroneous. 

Judgment reversed, and new trial granted. All concur, except 
Maynard, J., absent.* 

1 Ace: Ellis v. Kansas City, St. J. & O. B. R. Co., 63 Mo. 131, 21 Am. 
Bep. 436 (1876). 

A. was a visitor in B.'s house and was made seriously ill by gas escaping 
from the defendant's main. In an action by A. against the defendant for 



Ch. 2) AIB 13 

ROSS V. BUTLER. 

(Court of Chancery of New Jersey, ISGS. 19 N. J. Eq. 294, 97 Am. Dec. 654.) 

Argued on a rule to show cause why an injunction should not issue. 

The Chancellor (Zabriskie). * ♦ *2 For the purposes of 
this application, it must be taken as established, that the defendant 
is about to erect upon his lot, on the west side of Burnet street, a 
brick building with a fire proof roof, forty feet front by sixty feet 
deep, and three stories high; that the building is to be placed on 
the line of Burnet street upon the front of the lot, which is one hun- 
dred feet wide and two hundred feet deep, and has on its rear a small 
pottery, which has been used for several years ; that the building will 
be constructed with two kilns, each containing one furnace for burn- 
ing earthenware, having each one chimney; that it is intended when 
the building is finished, to use these kilns and to burn pine wood, 
which will cause large volumes of dense smoke to issue from the 
chimneys, which, with the cinders emitted with It, will fall in the 
yards and upon the houses in the vicinity, and penetrate the dwellings 
of the complainants, injure their goods and make their homes un- 
comfortable. These fires will not be kindled more than twice in each 
month, and after the first twelve hours will not emit large volumes 
of smoke, and in certain states of the atmosphere the smoke will be 
carried off without penetrating the houses of the complainants. 

It must also be taken as established, that Burnet street, in this lo- 
cality, and the adjoining parts of the city, are, if not continuously, 
thickly built up, and have been so built up for years ; that these build- 
ings have been, and now are, used for dwellings ; that the complain- 
ants all occupy dwellings on Burnet street, between New and Oliver 
streets, and that the dwelling house of the complainant, Agnew, is 
on the opposite side of Burnet street, and within forty feet of the 
proposed pottery ; that this part of the city is used for business and 
mechanical purposes, and is in the neighborhood of the canal and 
river, and of the wharves, docks, and coal and lumber yards on it, and 
is not the residence of the more wealthy and luxurious inhabitants, 
but it is occupied by business men and mechanics of moderate means. 

The question is, whether this factory, and the business proposed 
to be carried on in it in the manner stated, will be, in that neighbor- 



the damage so caused, an instruction that A. could recover, If he was in- 
jured by the gas and the defendant was guilty of negligence and A. was 
not, was sustained. Hunt v. Gas Co., 8 Allen (Mass.) 169, 85 Am. Dec. 697 
(1864). 

Compare: Ft. Worth, etc., Co. v. Glenn, 97 Tex. 586, SO S. W. 992. 65 L. 
R. A. 818, 104 Am. St. Rep. 894, 1 Ann. Cas. 270 (1904) ; Herman v. Buffalo, 
214 N. Y. 316, 108 N. E. 451 (1915). 

2 Part of the opinion Is omitted. 



14 RIGHTS INCIDENTAL TO POSSESSION, (Part 1 

hood and to these complainants, a nuisance such as this court ought 
to prevent and restrain. 

The defendant contends that it will not be a nuisance: First, be- 
cause the annoyance will not be great, and only occasional, principally 
in the night, when it will not be much noticed, and will not be in- 
jurious to health; secondly, because it is in an old part of the town, 
now deserted by the better class of residents, and given up principally 
to trade and manufactures, and on which there are not many valuable 
buildings; and, thirdly, because it is near the canal and river, where 
there is an abundant supply of water to extinguish any fires which 
may be occasioned by the business. * * * 

The law takes care that lawful and useful business shall not be put 
a stop to on account of every trifling or imaginary annoyance, such 
as may offend the taste or disturb the nerves of a fastidious or over 
refined person.' But, on the other hand, it does not allow any one, 
whatever his circumstances or condition may be, to be driven from 
his home, or to be compelled to live in it in positive discomfort, al- 
though caused by a lawful and useful business carried on in his vicini- 
ty. The maxim, "Sic utere tuo ut alienum non laedas," expresses the 
well established doctrine of the law. 

It is not necessary, to constitute a nuisance, that the matter com- 
plained of should affect the health or do injury to material property. 
It is sufficient, in the language of Sir Knight Bruce, if it is "an in- 
convenience materially interfering with the ordinary comfort, physical- 
ly, of human existence, not merely according to elegant and dainty 
modes and habits of living, but according to plain and sober and sim- 
ple notions among the English people." * * * 

The law, then, must be regarded as settled, that when the prosecu- 
tion of a business, of itself lawful, in the neighborhood of a dwelling 
house, renders the enjoyment of it materially uncomfortable, by the 
smoke and cinders, or noise or offensive odors produced by such busi- 
ness, although not in any degree injurious to health, the carrying on 
such business there is a nuisance, and it will be restrained by injunction. 

That large quantities of dense smoke produced by burning pine 
wood, with the cinders floating in it, faUing upon the houses and 
yards in the vicinity, and penetrating the dwellings, would cause ma- 
terial discomfort, there can be no doubt. In this case, it is contended 
that as the burning will be but twice in a month, and for twelve hours 
only, and that principally at night, it will be so slight as not to be a 
material discomfort. 

A nuisance of this kind may possibly occur so seldom that it will 
not be held to produce a material discomfort. Where the occurrence 
was only accidental and not produced by the regular course of busi- 

3 See Akers v. Marsh, 19 App. D. C. 28 (1901) ; Wade v. Miller, ISS Mass. 
6, 73 N. E. 849, 69 L. R. A. 820 (1905). 



Ch. 2) AIB 15 

ness, and recurring otjly three or four times a year, and not intended 
to be again permitted, it was held not to be a proper cause for an 
injunction to stop a lawful business, but that the party must be put 
to his action for damages.* 

But I am not aware of any authority or established principle, holding 
' that a clear unmistakable nuisance, which it is intended to commit 
periodically, will be permitted because it does not exist the greater 
portion of the time, but only for a small portion of it. This court will 
not determine that a family shall have their dwelling house made un- 
comfortable to live in for twelve hours, once in two weeks, or that 
they shall protect themselves by closing the house tightly, and re- 
maining indoors for that time. It is surely no justification to a wrong- 
doer, that he takes away only one twenty-eighth of his neighbor's prop- 
erty, comfort, or life. * * * 

Another question raised is, whether this business, although in some 
places it might be a nuisance, is not lawful here, on the ground that 
this is a part of the city devoted to such business, and therefore a 
convenient and proper place for it. The defendant is about to erect 
his pottery in a part of the city where there are no costly dwellings, 
and inhabited by persons in moderate circumstances, some of whom 
are mechanics, and some tradesmen, and carry on their trades and 
business on their own premises, but none of whom cause any annoy- 
ance in kind or degree like the smoke of such a pottery. 

The doctrine that a business which of itself was a nuisance to dwell- 
ings in its vicinity, might be carried on lawfully if in a convenient and 
suitable place, has been applied to justify such business to the dis- 
comfort of the inhabitants in their own dwelling houses, on the ground 
that such trade and business rnust be carried on somewhere, and that 
certain places should be considered proper for, and dedicated to, such 
purposes. This position has been supported by many dicta, and some 
authorities. 

In England, it was founded on a dictum of Baron Comyns in his 
Digest, title, "Action upon the Case for a Nuisance, (C)," in which he 
says: "So it does not lie for a reasonable use of any right, though 
it be to the annoyance of another; as if a butcher, brewer, &c., use 
his trade in a convenient place, though it be to the annoyance of his 
neighbor." And on this authority, the Court of Common Pleas, in 
the case of Hole v. Barlow, 4 C. B. (N. S.) 334, held that it was no mis- 
direction for the judge at Nisi Prius, to submit it to a jury, whether 
the burning of brick, the nuisance there complained of, was in a 
proper and convenient place. 

But this case was expressly overruled in Bamford v. Turnley, first 
in the King's Bench, and then on error in the Exchequer Chamber, 
3 Best & Smith, 62. Afterwards, the question 'was again raised in 
the case of Tipping v. The St. Helen's Smelting Company [11 H. L. 

* See Swain v. G. N. Ey. Co., 4 De G., .T. & S. 211 (1SG4;. 



16 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

C. 642 (1865)], by which the law is considered as finally settled in 
England. * * * 

I find no authority that will warrant the position that the part of 
a town which is occupied by tradesmen and mechanics for residences 
and carrying on their trades and business, and which contains no ele-^ 
gant or costly dwellings, and is not inhabited by the wealthy and lux- 
urious, is a proper and convenient place for carrying on business which 
renders the dwellings there uncomfortable to the owners and their 
families by offensive smells, smoke, cinders, or intolerable noises, 
even if the inhabitants are themselves artisans, who work at trades 
occasioning some degree of nOise, smoke, and cinders. Some pairts of 
a town may, by lapse of time, or prescription, by the continuance of 
a number of factories long enough to have a right as against every 
one, be so dedicated to smells, smoke, noise, and dust, that an addi- 
tional fa,ctory, which adds a little to the common evil, would not be 
considered at law a nuisance, or be restrained in equity. 

There is no principle in law, or the reasons on which its rules are 
founded, which should give protection to the large comforts and en- 
joyments with which the wealthy and luxurious are surrounded, and 
fail to secure to the artisan and laborer, and tlieir families, the fewer 
and more restricted comforts which they enjoy. 

But the question remains, what degree or amount of discomfort is 
necessary to constitute a nuisance. It is clear that every thing that 
renders the air a little less pure, or is to any extent disagreeable, is not 
necessarily a nuisance. The smoke that may, in certain conditions of 
the atmosphere, descend from a neighbor's chimney, the fumes that 
may sometimes be wafted from his kitchen, though not desirable or 
agreeable, are not a nuisance. Between them and the dense smoke 
from a kiln or factory, that renders breathing difficult and painful, and 
smells offensive to the verge of nauseating, there is debatable ground, 
' on which it may be difficult to fix the exact point at which the smoke 
or smell becomes a nuisance in the eye of the law. 

The word "uncomfortable" is not precise, nor does the phrase of 
Vice Chancellor Bruce, "according to plain and sober and simple no- 
tions among the English people," add much to making it definite. In 
fact, no precise definition can be given; each case has to be judged 
of by itself. 

Here the question is, whether a dense smoke laden with cinders, 
caused by the burning of pine wood, and continued for twelve hours, 
twice in each month, falling upon and penetrating the houses and 
premises of the complainants, at distances varying from forty to two 
hundred feet, would cause such injury, annoyance, and discomfort, as 
would constitute a legal nuisance. I am of opinion that it would. The 
Jbuilding of the pottery would be no nuisance. It is possible that the 
burning of earthenware may be conducted with other fuel than pine 
wood, not emitting large quantities of dark, dense smoke or cinders ; 
and equity will not interfere against a nuisance that is only contingent. 



Ch. 2) AIR 17 

The defendant may, if he sees fit, finish his building. But it was proper 
for the complainants, as soon as they knew of his intention to use 
the building for a purpose objectionable to them, to apply in equity 
for relief. This court would be very reluctant to interfere, if they 
had stood by, without objection, and allowed him to expend his money. 
An i njunction must issue against using the building for burning 
earthenware, or any manufacture with pine wood, or any fuel that 
may emit large quantities of dense smoke. The injunction, of course, 
may be removed or modified, if, upon the final hearing of the cause, 
it appears that the consequences on which this decision is founded, 
will not follow from such use of the premises." 



ROMER V. ST. PAUL CITY RY. CO. 

(Supreme Court of Minnesota, 1899. 75 Minn. 211, 77 N. W. 825, 74 Am. 

• St. Kep. 455.) 

Start, C. J.® This was an action for damages against the defend- 
ant for so maintaining and operating its street-car barn, and switching 
the cars in and out of it, as to constitute a nuisance, whereby the rental 
value of the plaintiff's real estate v/as impaired. At the close of the 
evidence the trial court directed a verdict for the defendant, and the 
plaintiff appealed from an order denying his motion for a new trial. 

Competent evidence was introduced on the trial, which was sufifi- 
cient, taking the most favorable view of it for the plaintiff, to estab- 
lish the following facts: Ramsey street and Smith and Thompson 
avenues are public streets within the city of St. Paul. The plaintiff 
has owned for some years, and still owns, the real estate described in 
the complaint, abutting upon the street and avenues named, which is 
occupied by dwelling houses and flats, as stated in the complaint. The 
defendant is a corporation for the purpose of operating street-railway 
lines in the city of St. Paul, and has been so engaged since 1872, and 
for the past nine years it has been engaged in operating a general sys- 
tem of electric street railways in the city, composed of various lines ; 
but each line is practically a part of every other line, so that a passen- 
ger boarding the car on any particular line can, by means of a transfer, 
required by ordinance, on payment of one fare, ride to any point on 
any other line embraced within the system. One of the lines of this 
system is operated along Ramsey street, and is known as the "Grand 

5 Ace: Walter v. Selfe, 4 De G. & S. 315 (1S51) ; Hurlbut v. McKone, 55 
Conn. 31, 10 Atl. 164, 3 Am. St. Rep. 17 (1887) ; Euler v. Sullivan, 75 Md. 616, 
23 Atl. 845, 32 Am. St. Rep. 420 (1892) ; Stevens v. Rockport Granite Co., 
216 Mass. 486, 104 N. E. 371, Ann. Cas. 1915B, 1054 (1914) ; Robinson y. 
Baugh, 31 Mich. 290 (1875). 

6 The statement of facts and part of the opinion are omitted. 

Big. Rights — 2 



IS RIGHTS INCIDENTAL TO POSSESSION (Part 1 

Avenue Line," which connects with or crosses all the other lines of the 
systern. The defendant is the owner of the land bounded by Ramsey 
street and Thompson and Smith avenues, upon which is located the 
car barn in question, which fronts on Ramsey street. It has been the 
owner of this land, and has maintained a car barn thereon, and operat- 
ed its cars in and out of it, for many years. Since 1890 electricity has 
been the motive power used on the defendant's lines, and since that 
date it has operated on Ramsey street its Grand avenue line in front 

of the plaintiff's property, at which point it has used a cross switch. 
* * * 

The location of the barn is practically a residence district, but it is 
within a few blocks of the business part of the city, with a lumber yard 
and several shops and stores in its immediate vicinity. The defendant's 
employes begin about 4 o'clock in the morning to take the cars out of 
the barn with the switching motor, and put them in position on the 
streets around the barn for distribution over the system. The cars 
are brought back in the evening, and are taken into the barn up to 1 
o'clock in the morning. In switching and distributing the cars a great 
noise is made, which is heard every morning from 4 to 6 o'clock, and 
again in the evening to 1 o'clock in the morning. The cars are taken 
out of the barn on Thompson avenue, and around the curves to Ram- 
sey street, and run over the switches in front of the plaintiff's brick 
block. The cars, in running around the curves, produce a sharp, grind- 
ing noise, and in making up the trains and pulling them out there is a 
bumping noise. The alleged nuisance consisted of the loud and dis- 
agreeable noises caused by the defendant so switching its cars in and 
out of the barn, and running them over and across the curves on 
Thompson and Smith avenues, and over the switch in front of the 
plaintiff's block on Ramsey street; also, by the ringing of the gongs on 
the cars, the loud talking of the defendant's employes in charge of 
them, and the hammering in cleaning and repairing of the cars in the 
street. The noises so produced were such as to disturb the rest and 
comfort of the plaintiff, his tenants, and other property owners in the 
vicinity of the car barn, by keeping them awake until late at night, and 
rousing them in the early hours of the morning. And, further, in the 
obstruction of the streets in front of plaintiff's property by permitting 
its cars to stand thereon, and by bringing coal, wood, sand, and other 
material to be used in the operation of its electric line, and unloading 
them upon the street at or near the barn. The rental value of the plain- 
tiff's property has been in some measure reduced by the alleged nui- 
sance. It was substantially admitted by the plaintiff on the argument of 
this appeal that the defendant was not guilty of any negligence in the 
construction, maintenance, and operation of its street-railway tracks, 
curves, switches, cars, and barn at the point in question. It was also 
conceded on the trial that no negligence in the premises had been prov- 
en. As to the repairs of the cars in the street, the evidence shows that 
they were such as were occasionally necessary to put them in a condi- 



Ch.2) AIR 19 

tion to be moved. The obstruction of the streets by the cars was tem- 
porary. * * * 

The real question, then, in this case, isjwhether the loud and disagree- 
able noises necessarily occasioned by the defendant in running its cars 
over its switches and curves in the streets, late at night and early in the 
morning, whereby the plaintiff is disturbed in the enjoyment of his 
property, is an actionable nuisance. The plaintiff', while conceding that 
the defendant has a right to maintain its car barn at the intersection 
of these streets, and to construct side tracks and switches on Ramsey 
street, claims it has no such right on Smith and Thompson avenues, 
and no legal right to switch its cars in and out of its barn over the 
tracks and curves upon the avenues. * * * 

We find in these ordinances no express grant to the defendant to 
maintain the curves and switches in the avenues in question for the 
purpose of taking its cars in and out of its barn, but the right to do 
so was given by necessary implication. * * * 

This conclusion, however, does not dispose of this appeal ; for while 
it is true, as a general proposition, that what is authorized to be done 
by law cannot be a public nuisance, yet it may be a private nuisance, as 
to individuals who are specially injured thereby. 2 Wood, Nuis. 557. 
The question still remains whether the loud and disagreeable noises 
occasioned by the running of the defendant's cars in and out of its 
barn over the curves and switches on the streets at the place and at the 
hours in question, although authorized by the city ordinances, consti- 
tute an actionable nuisance, as to the plaintiff. The answer to this 
question — there being no negligence in the case — depends on whether 
the location of the defendant's car barn was a reasonable and proper 
one, and whether the use of the streets at the times and in the manner 
they were used by the defendant in running its cars over the curves and 
switches, whereby the noises complained of were produced, was one 
of the reasonable uses or purposes for which the streets were acquired. 
The plaintiff cites and relies on a class of cases to the effect that, where 
a party is carrying on a lawful business on his own land without neg- 
ligence, yet if it is a business which is attended with loud and disagree- 
able noises, or produces noisome smells or noxious vapors, whereby 
the property and comfort of those dwelling in the neighborhood are 
materially injured and disturbed, the business is a nuisance per se. 
Such cases, however, are not particularly in point ; for this is not the 
case of carrying on an offensive trade or business on one's own prem- 
ises which may be carried on at places removed from the occupied 
parts of a city, or beyond its limits. 

The case of Baltimore & P. Ry. Co. v. Fifth Baptist Church, 108 
U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739, also relied on by the plaintiff, 
is more nearly in point than any other cited. But that case is clearly 
distinguishable from the one at bar. ' It was a case where a commercial 
railway company, whose motive power was steam, located its enginfe 
house and machine shop tnimediatcly adjoining a then existing churcb 



20 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

edifice, which was, and had been for some years prior to such location, 
continuously used by the church as its house of worship. The ham- 
mering in the shop, the passing of the engines in and out of the round- 
house, the blowing of whistles, the sounding of the bells, and the cin- 
ders and offensive odors, created a constant disturbance of the religious 
exercises of the church. Such acts were held to constitute an actiona- 
ble nuisance, and it was held that the church was entitled to damages 
in the premises. This was clearly a case of an improper and unrea- 
sonable location of its roundhouse and machine shop by the railway 
company, with reference to which the court, in its opinion, said, '"There 
are many places in the city sufficiently distant from the church to avoid 
all cause of complaint, and yet sufficiently near the station of the com- 
pany to answer its purposes." But there is a radical difference between 
an ordinary commercial railway, operated by steam, and a surface 
street railway, operated by electricity, as to the selection of its round- 
houses and machine shops by the one, and its car barns by the other. 
In each case the selection must be made with reference to the rights of 
property owners in the neighborhood ; also, those of the railway com- 
pany and of the public. The rights and convenience of property own- 
ers cannot alone be considered, for one living in a city must necessari- 
ly submit to the annoyances which are incidental to urban life, and in- 
dividual comfort must in many cases yield to the public good. 

Now, the only ground for claiming in this case that the location of 
the defendant's car barn was an improper one is that it is in the resi- 
dence portion of the city. But the exclusive business of the defendant 
is the carrying of passengers within the limits of the city and in its 
streets. Its lines traverse the streets of the residence portion of the 
city. Its business is there. It takes on and discharges passengers in 
all parts of the city. It must have its car barns so located that it can 
promptly get its cars upon its lines for the purpose of enabling the peo- 
ple of the city to seasonably get from their homes to their respective 
places of business or labor. It cannot locate its barns outside of the 
city, because it is only authorized to build and operate its lines within 
the city limits and upon its streets; and, if it had the authority to do 
otherwise, it would be impractical and detrimental to public interests 
to do so. Again, if it locates its barns at points where there are at 
present no dwelling houses, it is only a matter of time when some prop- 
erty owner will be disturbed by the loud and disagreeable noises nec- 
essarily occasioned by taking its cars in and out of the barns. The 
rights of such an owner are the same as those of the plaintiff. The 
barn in question is only one of five barns located and used by the de- 
fendant for the same purpose in different parts of the city, and the 
evidence conclusively shows that its location is not an improper or un- 
reasonable one. 

The further question, whether the maintenance and use by the de- 
fendant of the switches and curves in question are a proper street use, 
is settled adversely to the plaintiff by the purevious decisions of this 



Ch. -2) AIR 21 

court. ^ Such maintenance and use are a necessary incident to the opera- 
tion of its street-car system, which derives its business from the streets, 
is intended for the convenience of the travel therein, and is in aid of 
the identical use for which the streets were acquired ; hence the main- 
tenance and operation of these switches and curves are a proper street 
use, and not an additional burden thereon. Newell v. Railway Co., 
35 Minn. 112, 27 N-. W. 839, 59 Am. Rep. 303. The discomfort and 
injury sustained by the plaintiff from the loud and disagreeable noises 
produced by taking the cars of the defendant in and out of its barn over 
the switches and curves at the place and at the times in question are 
the same, except in a greater degree, as are sustained by property own- 
ers at the street corners where its cars are operated over curves. The 
acts of the defendant complained of do not constitute a private nui- 
sance for which the plaintiff is entitled to recover damages. 
Order affirmed.^ 



STOTLER V. ROCHELLE. 

(Supreme Court of Kansas, 1910. 83 Kan. 86, 109 Pac. 788, 29 L. R. A. 

[N. S.] 49.) 

Mason, J.® A hospital for the treatment of patients afflicted with 
cancer was about to be established in Kansas City, Kan., in a building 
formerly used as a dwelling house. The owner and occupant of ad- 
jacent premises brought an action to enjoin its establishment upon the 
ground that in view of the character of the neighborhood its presence 
there would render it in legal contemplation a nuisance. A permanent 
injunction was granted, and the defendants appeal. 

The home of the plaintiff is 78 feet from the main building which it 
is proposed to use as a hospital. The two houses face in the same 
direction, and each has a number of windows looking toward the other. 
A 15-foot alley runs between them, near which is a small building be- 
longing to the hospital property, formerly used for a billiard room. 

TAcc: Davis v. Wliitney, 68 N. H. 66, 44 Atl. 78 (1894); Ladd v. Brlclc 
Co., 68 N. H. 185, 37 Afl. 1041 (1S94). See Sanders-Clark v. Grovesnor Man- 
sions Co., [1900] 2 Ch. 373. 

A. lived in a neighborhood in which there were several printing estab- 
lishments as well as allied trades. B. had for several years conducted a 
large printing establishment in an adjoining building. He installed addi- 
tional machinery which he ran at night. The day operations added some- 
what to the noise of the neighborhood ; the night operations were an in- 
novation and seriously disturbed A.'s sleep. Held, A. was not entitled to 
enjoin the running of the additional machinery in the daytime; he was en- 
titled to enjoin its running at night. Rushmer v. Polsue, [1906] 1 Ch. D. 
234. Compare Austin v. Converse, 219 Pa. 3, 67 Atl. 921 (1907). 

A. was almost the only resident in a block otherwise devoted to business 
and manufactux'ing purposes. An adjoining building was used as a flour 
mill, causing dust, steam, ashes, and soot to permeate A.'s dwelling, and 
causing marked noise and vibration. Held, A. was not entitled to an in- 
junction. Gilbert v. Showerman, 23 Mich. 448 (1871). 

6 Part of the opinion is omitted. 



22 EIGHTS INCIDENTAL TO POSSESSION (Part 1 

Two Other residences are situated about 90 feet from the hospital 
building, and three others at a distance of about 150 feet. All the 
houses in the vicinity are used solely as dwellings. 

Witnesses for the plaintiff who were familiar with real estate values 
testified that in their judgment the establishment of the hospital would 
cause a material depreciation in the rental and market value of the sur- 
rounding property. Several physicians expressed the opinion that 
there would be some danger of the communication of the disease, 
through transmission by means of insects, and perhaps in other ways. 
There was also evidence that oif ensive odors resulting from the disease 
itself and from disinfectants used on account of it might reach the 
occupants of neighboring dwellings. On behalf of the defendants, 
there was testimony that none of the anticipated evils had resulted 
from a cancer hospital formerly maintained by them under somewhat 
similar conditions ; that under proper management there need be no 
offensive odors about such a place; and that cancer is not contagious 
or infectious. Perhaps the court may take notice of the prevailing 
view in the medical profession upon the last proposition. From the 
current literature of the subject, it appears that while it has not been 
proved to the satisfaction of the profession generally that cancer can 
be communicated from one individual to another, except by the pro- 
cess of grafting or transplanting cancerous tissue, competent investi- 
gators are not lacking who believe that it is of parasitic origin and in 
some degree infectious. * * * 

In Baltimore City v. Fairfield Imp. Co., 87 Md. 352, 364, 365, 39 Atl. 
1081, 1084 (40 L. R. A. 494, 67 Am. St. Rep. 344), an injunction 
against the placing of a leper for care and restraint in a residence neigh- 
borhood was justified in part upon grounds thus stated in the opinion: 
"Leprosy is and always has been, universally regarded with horror and 
loathing. * * * The horror of its contagion is as deep-seated to-day as . 
it was more than 2,000 years ago in Palestine. There are modern the- 
ories and opinions of medical experts that the contagion is remote and 
by no means dangerous ; but the popular belief of its perils founded 
on the Biblical narrative, on the stringent provisions of the Mosaic law 
that show how dreadful were its ravages and how great the terror 
which it excited, and an almost universal sentiment, the result of a 
common concurrence of thought for centuries, cannot in this day be 
shaken or dispelled by mere scientific asseveration or conjecture. It is 
not, in this case, so much a mere academic inquiry as to whether the 
disease is in fact highly or remotely contagious; but the question is 
whether, viewed as it is by the people generally, its introduction into a 
neighborhood is calculated to do a serious injury to the property of the 
plaintiff there located." 

Much the same reasoning may be applied here. The question is not 
whether the establishment of the hospital would place the occupants 
of the adjacent dwellings in actual danger of infection, but whether 
they would have reasonable ground to fear such a result, and whether, 

,., '- ', &J(^S V'- , 

f\i 'n 



Ch.2) 



AIE 23 



in view of the general dread inspired by the disease, the reasonable en- 
joyment of their property would not be materially interfered with by 
the bringing together of a considerable number of cancer patients in 
this place. However carefully the hospital might be conducted, and 
however worthy the institution might be, its_mere_£resence, which 
would necessarily be manifested in various ways, would make the 
neighborhood less desirable for residence purposes, not to the over- 
sensitive alone, but to persons of normal sensibilities. The court con- 
cludes that upon these considerations the injunction was rightfully 
granted.^ * * * — "^^ " "" ^ 



HENNESSY v. CARMONY. 

(Court of Chancery of New Jersey, 1892. 50 N. J. Eq. 616, 25 Atl. 374.) 

Pitney, V. C.^" The object of the bill is to restrain a private nui- 
sance. The complainant is the owner of a small lot of land, about 
18 feet front and rear by about 96 feet deep, in the city of Camden, 
fronting on the west side of South Eighth street, about midway be- 
tween Spruce street on the north and Cherry street on the south. Up- 
on this lot is situated a small dweUing house, composed of a main or 
front part of brick, about 15 feet front by 30 feet deep, two stories 
high, leaving a passageway of 3 feet on the northerly side, and having 
a wooden extension or kitchen about 10 by 35 feet, two stories high, in 

9Acc.: Haggart v. Stehlin, 137 Ind. 43, 35 N. E. 997, 22 L. R. A. 577 
(1892) (licensed saloon) ; Saier v. Joy, 198 Jlich. 295, 164 N. W. 507, L. R. A. 
1918A, 823 (1917) (undertaker); Barth v. Hospital, 196 Mich. 642, 163 N. 
W. 62 (1917) (insane asylum); Everett v. Paschall, 61 Wash. 47, 111 Pac. 
879, 31 L. R. A. (N. S.) 827, Ann. Cas. 1912B, 1128 (1910) (sanitarium) ; Dens- 
more V. Evergreen Camp, 61 Wash. 230, 112 Pac. 255, 31 L. R. A. (N. S.) 608, 
Ann. Cas. 1912B, 1206 (1910) (undertaker). 

A. sought an injunction to prevent B. from establishing a smallpox hospi- 
tal within 2,000 feet of A.'s house. The injunction was refused. "The 
question to be decided was whether there was an appreciable injury to tlie 
healthiness of the plaintiff's property. The plaintiffs must make out that 
there was a real danger, otherwise, however much they might feel the hospi- 
tal to be an annoyance, they could not get an injunction." Fleet v. Metro- 
politan Asylum Board, 2 T. L. R. 361 (1886). Ace: Westcott v. Middleton, 43 
N. J. Eq. 478, 11 Atl. 490 (18S7) (undertaker) ; City of Northheld v. Board, 
etc., 85 N. J. Eq. 47, 95 Atl. 745 (1915) (tuberculosis hospital) ; Heaton v. 
Packer, 131 App. Div. 812. 116 N. Y. Supp. 46 (1909) (insane asylum). 

A. maintained within .50 feet of B.'s house, and in full view irom the 
windows thereof, a breeding place for stallions and jacks, where the animals 
were engaged daily. Held, B. is entitled to enjoin the conduct of this busi- 
ness by A. in this place. Hay den v. Tucker, 37 Mo. 214 (1866) ; Farrell v. 
Cook, 16 Neb. 483, 20 N. W. 720, 49 Am. Rep. 721 (1884). 

A. erected on his land, immediately opposite the windows of B.'s parlor, 
and about 50 feet tlierefrom, a stable, pig sty, and privy, all of which he used. 
Held, B. was not entitled to enjoin their use, e.vcept in so far as the noise 
or smells therefrom amounted to a nuisance. Trulock v. Merte, 72 Iowa 
510, 34 N. W. 307 (1887). See, also, Quintini v. Board of Aldermen 64 
Miss. 483, 1 South. 625, 60 Am. Rep. 62 (18S6) ; Lane v. Concord, 70 N H. 
485, 49 Atl. 687, 85 Am. St. Rep. 643 (1900). 

10 Part of the opinion is omitted. 

. 



] I 



24 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

the rear. The rear of this structure is 3IV2 feet from the rear line of 
the lot. The ground lying to the north and west of this lot is owned by 
the defendants, or one of them, and is used for a dye works for color- 
ing cotton and other materials. In the process of dyeing, it, of course, 
becomes necessary to dry those materials, and in order to hasten this 
process use is made of two machines, called in the evidence "whizzers," 
into which the wet material is placed, and which, by being revolved at 
great speed, drive out the water by centrifugal force. These machines 
are driven by two small engines attached to them directly, without in- 
termediate gearing, so that the engines must make the same number of 
revolutions as do the whizzers, and the more rapid the revolution, the 
more rapid the process of drying. 

The principal subject of htigation was as to the effect upon the com- 
plainant's premises of these machines. There were other matters com- 
plained of, some of which were remedied about the time the bill was 
filed, and such as were not remedied are capable of being remedied 
without serious inconvenience to the defendants. * * * 

Fourth, Complainant contends that the running of the centrifugal 

machines before mentioned has the effect of making a disagreeable 

noise, and also of jarring and shaking the house, so that the windows 

and doors rattle, the pieces of table crockery rattle and move upon 

one another on the shelves, and the walls are more or less cracked. 
* * * 

With regard to the alleged noise and vibration, and the right of the 
complainant to relief on that score if the vibrations be established, more 
troublesome questions arise. The proof is clear that when these ma- 
chines, called in the evidence "whizzers," were first put in, s6me years 
ago, they did produce a serious vibration in the neighboring buildings. 
The factory is situate in the easterly center of the block, which is ob- 
long, and bounded north by Spruce street, east by Eighth street and 
south by Cherry street, and the engines are about equidistant — say 110 
feet to 120 feet — from each of these streets, and about 30 feet from 
the rear of complainant's lot. On the west of the factory is a church 
and a public schoolhouse, and the latter is more than 150 feet distant 
from the machines. So great was the vibration they produced at the 
schoolhouse that complaint was made by the school authorities, and 
the defendants attempted to remedy the nuisance by constructing a 
solid foundation of masonry, extending some six feet below the sur- 
face, and placing the machines upon it. It is also proven by one of 
the defendants' witnesses, who lived in the complainant's house at and 
before the construction of this foundation, that complainant's house 
was seriously shaken by the machines. This solid foundation, put in 
about three years before bill filed, seems to have remedied the difficulty 
so far as the schoolhouse was concerned, and, under ordinary circum- 
stances, one would suppose that the result would be general, and in- 
clude buildings as near as complainant's dwelling. But the evidence 
compels me to come to a contrary conclusion. ♦ * * 



Ch. 2) 



AIR 



The evidence of the complainant and his family is strong as to the 
noise and vibration in his house, and its effect, as above stated, in caus- 
ing the windows to rattle and the dishes to rattle and move upon their 
shelves, the doors to swing open, and the walls to crack. * * * 

The serious and troublesome question in the case is as to whether the 
vibration established is of such a degree as to entitle the complainant 
to the aid of this court. Upon reason and authority I think there is a 
clear distinction between that class of nuisances which aft'ect air and 
light merely, by way of noises and disagreeable gases, and obstruction 
of light, and those which directly affect the land itself, or structures 
upon it. Light and air are elements which mankind enjoy in com- 
mon, and no one person can have an exclusive right in any particular 
portions of either; and, as men are social beings, and by common con- 
sent congregate, and need fires to make them comfortable and to cook 
their food, it follows that we cannot expect to be able to breathe air 
entirely free from contamination, or that our ears shall not be invaded 
by unwelcome sounds. Thus, my neighbor may breathe upon my land 
from his, and the smoke from his house fire and the vapor from his 
kitchen may come onto my land, or he may converse in audible tones 
while standing near the dividing line, and all without giving me any 
right to complain. So my neighbor and I may build our houses on the 
line between our properties, or have a party wall in common, so that 
we are each liable to hear and be more or less disturbed by the noise 
of each other's family, and cannot complain of it. In all these matters 
of the use of the common element air we give and take something of 
injury and annoyance, and it is not easy to draw tlie line between rea- 
sonable and unreasonable use in such cases, affecting, as they do, main- 
ly the comfort, and, in a small degree only, the health, of mankind. In 
attempting to draw this line, we must take into consideration the char- 
acter, vv.hich has been impressed upon the neighborhood by what may be 
called the "common consent" of its inhabitants. But when we come 
to deaf with what is individual property, in which the owner has an 
exclusive right, the case is different. While my neighbor may stand 
by my fence on his own lot, and breathe across it over my land, and 
may permit the smoke and smell of his kitchen to pass over it, and may 
talk, laugh, and sing or cry, so that his conversation and hilarity or 
grief is heard in my yard, he has no right to shake my fence ever so 
little, or to throw sand, earth, or water upon my land in ever so small 
a quan tity. To do so is an invasion of property, and a trespass, and 
to continue to do so constitutes a nuisance ; and, if he may not shake 
my fence or my house by force directed immediately against them, I 
know of no principle by which he may be entitled to do it by indirect 
means. 

I think the distinction between the two classes of injury is clear. At 
the same time it would seem that it has, in appearance at least, been 
frequently overlooked by able and careful judges, and the same rules 
as to the degree of the injury which will justify judicial interference 



26 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

applied to each class. The distinction between the two classes of in- 
juries was pointed out by Lord Westbury in Smelting Co. v. Tipping, 
11 H. L. Cas. 642, 11 Jur. (N. S.) 785, 116 E. C. L. 1093. The charge 
of the judge under review is given in full in the report in the Jurist, 
and in the addenda to 4 Best & S., printed in 116 E. C. L. 1093, while a 
mere abstract is given in the report in the queen's bench, (4 Best & S. 
608), and in the official report in the house of lords, (11 H. L. Cas.) 
One of the headnotes of the official report (11 H. L. Cas.) is this: 
"There is a distinction between an action for a nuisance in respect of 
an act producing a material injury to property and one brought in re-' 
spect of an act producing personal discomfort. As to the latter, a per- 
son must, in the interest of the public generally, submit to the discom- 
fort of the circumstances of the place, and the trades carried on around 
him. As to the former, the same ruling would not apply." 

Lord Westbury, in moving the judgment of affirmance, said: "In 
matters of this description it appears to me that it is a very desirable 
thing to mark the difference between an action brought for a nuisance 
upon the ground that the alleged nuisance produces material injury 
to the property and an action brought for a nuisance on the ground that 
the thing alleged to be a nuisance is productive of sensible personal dis- 
comfort. With regard to the latfer, namely, the personal inconvenience 
and interference with one's enjoyment, one's quiet, one's personal free- 
dom, anything that discomposes or injuriously affects the 'senses or 
the nerves, whether that may or may not be denominated a 'nuisance,' 
must undoubtedly depend greatly on the circumstances of the place 
where the thing complained of actually occurs. If a man lives in a 
town, it is necessary that he should subject himself to the consequences 
of those operations of trade which may be carried on in his immediate 
locality which are actually necessary for trade and commerce, and also 
for the enjoyment of property, and for the benefit of the inhabitants 
of the town and of the public at large. If a man lives in a street where 
there are numerous shops, and a shop is opened next door to him, 
which is carried on in a fair and reasonable way, he has no ground for 
complaint because to himself individually there may arise much dis- 
comfort from the trade carried on in that shop. But when an occupa- 
tion is carried on by one person in the neighborhood Of another, and 
the result of that trade or occupation or business is a material jnjury to 
property, then there unquestionably arises a very different considera- 
tion. I think that in a case of that description the submission wliich is 
required from persons living in society to that amount of discomfort 
which may be necessary for the legitimate and free exercise of the 
trade of their nefghbors would not apply to circumstances the immedi- 
ate result of which is sensible injury to the value of the property." 
This opinion was expressly concurred in by the other judges who sat 
in that case. 

The sole question before the court was whether the defendant below 
Cthe plaintiff in error) had any reason to complain of the charge of the 



Ch.2) AIB 27 

judge, and not whether, if the verdict had been for the defendant, the 
plaintiff below might not have taken exception to it; and the effect of' 
the judgment of Lord Westbury was — as it seems to me — to hold that 
the charge was too favorable to the defendant below, who was plaintiff 
in error. This aspect of the case was noticed and pointed out by Lord 
Cockburn in the queen's bench, who said (4 Best & S. 615) that, if the 
summing up of the judge "was wrong in any respect, the error is one 
of which the other side is the only party entitled to complain." It is not 
quite safe, therefore, as it seems to me, to rely upon the charge of the 
judge there under review as an accurate statement of the law, without 
taking into consideration this circumstance. In my judgment, the dis- 
tinction taken by Lord Westbury in that case is founded in reason, 
and should be observed ; and, in looking at the language used by tlie 
judges in other cases, we ought to observe whether it was used in ref- 
erence to a case of injury through the air by noise or offensive odor, or 
whether it was one affecting the land itself. Thus, in Sturges v. Bridg- 
man, (1879,) 11 Ch. Div. 852, where the injunction was granted, the 
case was one mainly of noise, and, although the element of vibration 
was mentioned, the judges dealt altogether with the matter of noise. 
The same may be said of Gaunt v. Fynney, (1872,) L. R. 8 Ch, App. 9, 
where the injunction was refused. 

The question here, then, is not so much whether the effect of the 
noise and vibration caused by the rapid revolution of the defendants' 
machines is to render complainant's house less comfortable to live in,, 
(though that is a matter to be considered,) but rather whether the com- 
plainant's land and dwelling is sensibly and injuriously affected by the 
vibration. If it be so, then it seems to me he ought, in the absence of 
any equitable defense, to be entitled to relief. The familiar gfound on 
which the extraordinary power of the court is invoked in such cases is 
that it is inequitable and unjust that the injured party should be com- 
pelled to resort to repeated actions at law to recover damages for his 
injury, which, after all, in this class of cases, are incapable of measure- 
ment; and I presume to add the further ground that in this country 
such recovery must result in giving the wrongdoer a power not per- 
mitted by our system of constitutional government, viz., to take the in- 
jured party's property for his private purposes upon making, from time 
to time, such compensation as the whims of a jury may give. This 
ground of equitable action is of itself sufficient in those cases where 
the injury, though not irreparable, promises to be repeated for an in- 
definite period, and so is continuous in the sense that it will be perse- 
vered in indefinitely. See Ross v. Butler, 19 N. J. Eq. 302, 97 Am. 
Dec. 654. 

Several matters have at various times and on various occasions been 
held to stand in the way of granting an injunction in this class of cas- 
es. The principal one is what may be called the "de minimis," "bal- 
ance of injury," and "discretion" doctrine. It has been said and held on 
some occasions that, where the injury to the complainant by the con- 



28 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

tinuance of the nuisance is small, and the injury to the defendant by 
its discontinuance is great, the court will consider that circumstance, 
and, if the balance is greatly against the complainant, will, in the exer- 
cise of a sound discretion, refuse the injunction, and leave the com- 
plainant to his remedy at law. * * * 

I have never been able to see how the question of the right of the 
complainant to an injunction on final hearing could ever be a matter 
properly resting in the "discretion" of the chancellor, as I understand 
the force of that word in that connection. If by "discretion" is here 
meant that the judge must be discreet, and must act with discretion, 
and discriminate, and take into consideration and give weight to each 
circumstance in the case in accordance with its actual value in a court 
of equity, tlien I say that that is just what he must do in every case 
that comes under his consideration ; no more and no less ; and that is 
the sense in which I understand the word is used in Demarest v. Hard- 
ham. But if the word "discretion," in this connection, is used in its 
secondary sense, and by it is meant that the chancellor has the liberty 
and power of acting, in finally settling property rights, at his discretion, 
without the restraint of the legal and equitable rules governing those 
rights, then I deny such power. It seems to me that the true scope of 
the exercise of this latter sort of discretion in the judicial field is found 
in those matters which affect procedure merely, and not the ultimate 

^jprjj^ 11 * * ^ 

The result of a careful review of the evidence upon my mind is to 
lead me to the conclusion that the degree of injury is such as to en- 
title the complainant to damages in an action at law, with the result 
that he is entitled to an injunction in this court. The injury, to be ac- 
tionable," must be sensible and appreciable, as distinguished from one 
merely fanciful, and in a case like this I assume, for present purposes, 
that it must have the effect of rendering the premises less desirable, and 
so less valuable for ordinary use and occupation. Now, it seems to me 
that a vibration that causes the windows and doors of a house to rattle 
in their casings, and dishes on the shelves to rattle and move on one 
another, and the walls to crack, and is distinctly felt by persons in the 
house, would have such effect, and is therefore actionable; while 
smoke and noise might have a similar effect in rendering the house less 
desirable without being actionable, because the degree of discomfort 
would not be sufficiently great to reach the standard (if, indeed, any- 
standard has been established) applied to that class of injuries. See 
Walter v. Selfe, 4 De Gex & S. 318, 20 Law J. Ch. 434, 15 Jur. 416; 
Ross V. Butler, 19 N. J. Eq. 294, 299, 306, 97 Am. Dec. 654. There is> 
evidence tending to show that complainant made little or no complaint 
with regard to this vibration until about the time the bill was filed, when 
the invasion of his property rights by hanging the stay wire over his 
land, by driving the filthy steam from the sewer into his kitchen, and 

iiAcc. Broadbent v. Imperial Gas Co., 7 De G.. M. & G. 4oG (185C). 



Ch. 2) AIR 29 

the sprinkling of spray over his back yard, seemed to combine to exas- 
perate him. This apparent acquiescence can only be, used as evidence 
that the complainant did not consider the vibration as serious, but I 
think that is not sufficient in that regard to overcome the weight of 
the evidence that his house is injured. 

I will advise a decree that the defendant be restrained from so using 
his machines as to cause the complainant's house to vibrate, and also 
from allowing the water and spray from the exhaust of his engines to 
come onto the complainant's lands. ^^ 



MADISON et al. .v. DUCKTOWN SULPHUR, COPPER & IRON 

CO. et al. 

McGHEE et al. v. TENNESSEE COPPER CO. et al. 

EARNER v. TENNESSEE COPPER CO. 

(Supreme Court of Tennessee, 1904. 113 Tenn. 331, 83 S. W. 658.) 

Bill for an injunction. [The defendants were large copper smelting 
companies. The complainants were small farmers.] 

Neil, J.^^ * * * All of the complainants have owned their 
several tracts since a time anterior to the resumption of the copper in- 
dustry at Ducktown in 1891, and have resided on them during this 
period, with the exception of Avery McGhee, who worked for one of 
the defendant companies a considerable time, and Margaret Madison, 
who removed to Snoddy, in Rhea county, two or three years ago. 

The general effect produced by the smoke upon the possessions and 
families of the complainants is as follows, viz.: 

Their timber and crop interests have been badly injured, and they 

12 For other cases, where the damage to property was held to constitute a 
nuisance, see Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562, 39 Atl. 
270, 63 Am. St. Rep. 533 (1898) (action at law) ; Campbell v. Seaman, 63 N. 
T. 568, 20 Am. Kep. 567 (1876) (granting an injunction). 

Compare: Downing v. Elliot, 182 Mass. 28, 64 N. E. 201 (1902). 

"The fair interpretation of the plaintia'^ bill is that the floor above its 
rooms naturally and properly has holes in it, and that the defendants know- 
ingly carry on their business in such a way as to send fumes of acid and 
large quantities of sand through these holes upon the plaintiffs premises, and 
thereby to corrode and spoil its machinery and goods. 

"As between adjoining proprietors, one of thorn has no right as against 
the others to do what is complained of here, and it would be no answer to, 
an action to say that the plaintiff might have shut his windows. There 
would be no need to allege in terms that the business was unsuitable to be 
carried on in that place, or that there was negligence in the mode of carry- 
ing it pn. As the damage was a manifest consequence of the defendants' 
business, the fact that they could not help it if they carried on that business 
would be immaterial. See the form of declaration in Tipping v. St. Helen's 
Smelting Co., 4 B. & S. 608, and St. Helen's Smelting Co. v. Tipping, 11 H. 
L. Cas. 642." Holmes, J., in Boston Ferrule Co. v. Hills, 159 Mass. 147, 149, 
34 N. E. 85, 20 L. R. A. 844 (1893). 

13 Part of the opinion is omitted. 



30 



RIGHTS INCIDENTAL TO POSSESSION 



(Part 1 



have been annoyed and discommoded by the smoke so that the com- 
plainants are prevented from using and enjoying their farms and 
homes as they did prior to the inauguration of these enterprises. The 
smoke makes it impossible for the owners of farms within the area of 
the smoke zone to subsist their families thereon with the degree of 
comfort they enjoyed before. They cannot raise and harvest their cus- 
tomary crops, and their timber is largely destroyed. * * * ■ 

The Court of Chancery Appeals finds that the defendants are con- 
ducting and have been conducting their business in a lawful way, with- 
out any purp>ose or desire to injure any of the complainants ; that they 
have been and are pursuing the only known method by which these 
plants can be operated and their business successfully carried on ; that 
the open-air roast heap is the only method known. to the business or 
to science by means of which copper ore of the character mined by 
the defendants can be reduced; that the defendants have made every 
effort to get rid of the smoke and noxious vapors, one of the defend- 
ants having spent $200,000 in experiments to this end, but without 
result. 

It is to be inferred from the description of the locality that there is 
no place more remote to which the operations referred to could be 
transferred. * * * 

There can be no doubt that the facts stated make out a case of nui- 
sance, for which the complainants in actions at law would be entitled to 
recover damages. * * * 

The following general propositions seem to be established by the au- 
thorities: If the case made out by the pleadings and evidence show 
with sufficient clearness and certainty grounds for equitable relief it 
will not be denied because the persons proceeded against are engaged 



in a lawful business (" 



Tipping V, St. Helens Smelting Co., 11 



H. L. Cas. 642 ; Atty. Gen. v. Colny Hatch Lunatic Asylum, 4 L. R. 
Ch. App. 478; Crossly v. Lightowler, 3 L. R. Eq. 279, 2 L. R. Ch. 
App. 478; * * * Robinson v. Baugh, 31 Mich. 291; Susquehanna 
Fertilizer Co. v. Malone, 73 Md. 268, 282, 20 Atl. 900, 9 L. R. A. 7Z7 , 
25 Am. St. Rep. 595), or because the works complained of are located 
in a convenient place, if that place be one wherein an actionable injury 
is done to another (Susquehanna Fertilizer Co. v. Malone, Th Md. 268, 
277, 278, 20 Atl: 900, 9 L. R. A. 7Z7, 25 Am. St. Rep. 595, and cases 
cited; Tipping v. St. Helens Smelting Co., supra); nor will the exist- 
ence of another nuisance of a similar character at the same place fur- 
nish a ground for denying relief if it appear that the defendant has 
sensibly contributed to the injury complained of (Crossly v. Lightowler, 
supra * * *). 

But there is one other principle which is of controlling influence in 
this department of the law, and in the light of which the foregoing 
principle must be weighed and applied. This is that the granting of 
an injunction is not a matter of absolute right, but rests m the sound 
discretion of the court, to be determined on a consideration of all of 



^h. 2) AIR 31 

the special circumstances of each case, and the situation ^nd surround- 
ings of the parties, with a view to effect the ends of justice. 

A judgment for damages in this class of cases is a matter of absolute 
right, where injury is shown. A decree for an injunction is a matter of 
sound legal discretion, to be granted or withheld as that, discretion 
shall dictate, after a full and careful consideration of every element ap- 
pertaining to the injury. * * * 

The question noAv to be considered is, what is the proper exercise of 
discretion, under the facts appearing in the present case? Shall the 
complainants be granted, in the way of damages, the full measure of re- 
lief to which their injuries entitle them, or shall we go further, and 
grant their request to blot out two great mining and manufacturing 
enterprises, destroy half of the taxable values of a county, and drive 
more than 10,000 people from their homes ? We think there can be no 
doubt as to what the true answer to this question should be. 

In order to protect by injunction several small tracts of land, aggre- 
gating in value less than $1,000, we are asked to destroy other property 
worth nearly $2,000,000, and wreck two great mining and manufac- 
turing enterprises, that are engaged in work of very great importance, 
not only to their owners, but to the state, and to the whole country as 
well, to depopulate a large town, and deprive thousands of working 
people of their homes and livelihood, and scatter them broadcast. The 
j:esult_would^e^j)ractically a confiscation of the property of the de- 
fendants ^or the benefit of the complainants — an appropriation without 
compen sation. The defendants cannot reduce their ores in a manner 
different from that they are now employing, and there is no more re- 
mote place to which they can remove. The decree asked for would de- 
prive them of all of their rights. We appreciate the argument based 
on the fact that the homes of the complainants who live on the small 
tracts of land referred to are not so comfortable and useful to their 
owners as they were before they were affected by the smoke complain- 
ed of, and we are deeply sensible of the truth of the propcfsition that 
no man is entitled to any more rights than another on the ground that 
he has or owns more property than that other. But in a case of con- 
flicting rights, where neither party can enjoy his own without in some 
measure restricting the liberty of the other in the use of property, the 
law must make the best arrangement it can between. the contending 
parties, with a view to preserving to each one the largest measure of 
liberty possible under the circumstances. We see no escape from the 
conclusion in the present case that the only proper decree is to al- 
low the complainants a reference for the ascertainment of damages, 
and that the injunction must be denied to them.** * * * 

14 Ace: Richard's Appeal, 57 Pa. 105, 9S Am. Dec. 202 (1S68) ; Bliss v. 
Anaconda Copper Co. (C. C.) 167 Fed. 342 (1909). Compare Daniels v. Keo- 
liuk Waterworks, 61 Iowa, 549, 16 N. W. 705 (1S83) ; Shelter v. London Electric 
Lighting Co., [1S95] 1 Ch. D. 2S7. 






32 RIGHTS INCIDENTAL TO POSSESSION i^^^ ^ 

STURGES V. BRIDGMAN. 

(Chancery Division, 1879. L. R. 11 Ch. Div. 852.) 

Thi;sige;r, L. J.,^"^ delivered the judgment of the Court (JameSs, 
Baggallay, and Thesiger, L. JJ.) as follows : 

The defendant in this case is the occupier, for the purpose of his 
business as a confectioner, of a house in Wigmore street. In the rear 
of the house is a kitchen, and in that kitchen there are now, and have 
been for over twenty years, two large mortars in which the meat and 
other materials of the confectionery are pounded. The plaintiff, who 
is a physician, is the occupier of a house in Wimpole street, which 
until recently had a garden at the rear, the wall of which garden was 
a party wall between the plaintiff's and the defendant's premises, and 
formed the back wall of the defendant's kitchen. The plaintiff has, 
however, recently built upon the site of the garden a consulting room, 
one of the side walls of which is the wall just described. It has been 
proved that in the case of the mortars, before and at the time of action 
brought, a noise was caused which seriously inconvenienced the plain- 
tiff in the use of his consulting room, and which, unless the defendant 
had acquired a right to impose the inconvenience, would constitute an 
actionable nuisance. The defendant contends that he had acquire d the 
right, either at common law or under the Prescription Act, by uninter- 
rupted user for more than twenty years. 

In deciding this question one more fact is necessary to be stated. 
Prior to the erection of the consulting room no material annoyance or 
inconvenience was caused to the pfaintiff or to any previous occupier 
of the plaintiff's house by what the defendant did. It is true that the 
defendant in the seventh paragraph of his affidavit speaks of an invalid 
lady who occupied the house upon one occasion, about thirty years be- 
fore, requesting him if possible to discontinue the use of the mortars be- 
fore eight o'clock in the morning ; and it is true also that there is some 
evidence of the garden wall having been subjected to vibration, but 
this vibration, even if it existed at all, was so slight, and the complaint, 
if it could be called a complaint, of the invalid lady, and can be looked 
upon as evidence, was of so trifling a character, that, upon the maxim 
"De minimis non curat lex," we arrive at the conclusion that the de- 
fendant's acts would not have given rise to any proceedings either at 
law or in equity. Here then arises the objection to the acquisition by 
the defendant of any easement. That which was done by him was in 
its nature such that it could not be physically interrupted ; it could not 
at the same time be put a stop to by action. Can user which is neither 
preventible nor actionable found an easement? We think not. The 
question, so far as regards this particular easement claimed, is the 
same question whether the defendant endeavours to assert his right by 

15 The .statement of facts is omitted. 



Ch. 2) AiB 33 

common law or under the Prescription Act. That act fixes periods for 
the acquisition of easements, but, except in regard to the particular 
easement of light, or in regard to certain matters which are immaterial 
to the present inquiry, it does not alter the character of easements, or 
of the user or enjoyment by which they are acquired. This being so, 
the laws governing the acquisition of easements by user stands thus : 
Consent or acquiescence of the owner of the servient tenement hes at 
the root of prescription, and of the fiction of a lost grant, and hence the 
acts or user, which go to the proof of either the one or the other, must 
be, in the language of the civil law, "Nee vi nee clam nee precario;" 
for a man cannot, as a general rule, be said to consent to or acquiesce 
in the acquisition by his neighbour of an easement through an enjoy- 
ment of which he has no knowledge, actual or constructive, or which 
he contests and endeavours to interrupt, or which he temporarily licens- 
es. It is a mere extension of the same notion, or rather it is a prin- 
ciple into which by strict analysis it may be resolved, to hold, that an 
enjoyment which a jnan cannot prevent raises no presumption of con- 
sent or acquiescence. 

Upon this principle it was decided in Webb v. Bird, 13 C. B. (N. S.) 
841, that currents of air blowing from a particular quarter of the com- 
pass, and in Chasemore v. Richards, 7 H. L. C. 349, that subterranean 
water percolating through the strata in no known channels, could not 
be acquired as an easement by user ; and in Angus v. Dalton, 4 O. B. 
D. 162, a case of lateral support of buildings by adjacent soil, which 
came on appeal to this court, the principle was in no way impugned, 
although it was held by the majority of the court not to be applicable 
so as to prevent the acquisition of that particular easement. It is a 
principle which must be equally appropriate to the case of affirmative 
as of negative easements ; in other words, it is equally unreasonable to 
imply your consent to your neighbour enjoying something which pass- 
es from your tenement to his, as to his subjecting your tenement to 
something which comes from his, when in both cases you have no pow- 
er of prevention. But the affirmative easement differs from the nega- 
tive easement in this, that the latter can under no circumstances be in- 
terrupted except by acts done upon the servient tenement, but the for- 
mer, constituting, as it does, a direct interference with the enjoyment 
by the servient owner of his tenement, may be the subject of legal 
proceedings as well as of physical interruption. To put concrete cases 
— the passag-e of light and air to your neighbour's windows may be 
physically interrupted by you, but gives you no legal grounds of com- 
plaint against him. The passage of water from his land on to yours 
may be physically interrupted, or may be treated as a trespass and 
made the ground of action for damages, or for an injunction, or both. 
Noise is similar to currents of air and the flow of subterranean and 
uncertain streams in its practical incapability of physical interruption, 
but it differs from them in its capability of grounding an action. Webb 
Big. Rights — 3 



^«^ 



tz^ 



34 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

V. Bird and Chasemore v. Richards are not, therefore, direct authori- 
ties governing the present case. They are, however, illustrations of 
the principle which ought to govern it ; for until the noise, to take this 
case, became an actionable nuisance, which it did not at any time be- 
fore the consulting room was built, the basis of the presumption of 
the consent, viz., the power of prevention physically or by action, was 
never present. 

It is said that if this principle is applied in cases like the present, 
and were carried out to its logical consequences, it would result in the 
most serious practical inconveniences, for a man might go — say into 
the midst of the tanneries of Bemiondsey, or into any other locality 
devoted to a particular trade or manufacture of a noisy or unsavoury 
character, and, by building a private residence upon a vacant piece of 
land, put a stop to such trade or manufacture altogether.^® The case 
also is put of a blacksmith's forge built away from all habitations, but 
to which, in course of time, habitations approach. We do not think 
that either of these hypothetical cases presents any real difficulty. As 
regards the first, it may be answered that whether anything is a nui- 
sance or not is a question to be determined, not merely by an abstract 
consideration of the thing itself, but in reference to its circumstances ; 
what would be a nuisance in Belgrave Square would not necessarily be 
so in Bermondsey ; and where a locality is devoted to a particular trade 
or manufacture carried on by the traders or manufacturers in a par- 
ticular and established manner not constituting a public nuisance, judg- 
es and juries would be justified in finding, and may be trusted to find, 
that the trade or manufacture so carried on in that locality is not a 
private or actionable wrong. As regards the blacksmith's forge, that 
is really an idem per idem case with the present. It would be on the 
one hand in a very high degree unreasonable and undesirable that there 
should be a right of action for acts which are not in the present condi- 
tion of the adjoining land, and possibly never will- be any annoyance 
or inconvenience to either its owner or occupier ; and it would be on 
the other hand in an equal degree unjust, and, from a public point 
of view, inexpedient that the use and value of the adjoining land 
should, for all time and under all circumstances, be restricted and di- 
minished by reason of the continuance of acts incapable of physical 

18 "In this case the declaration alleges that the defendant injuriously car- 
ried on, in messuages contiguous to the messuage of the plaintiff, the trade 
and business of a candlemaker, by which noxious vapors and smells pro- 
ceeded from the messuage of the defendant and diffused themselves over the 
messuage of the plaintiff ; and all that the defendant says in answer is, that 
he carried on the business for three years before the plaintiff became pos- 
sessed of the messuage he inhabits. That is no answer to the complaint in 
the declaration; for the plaintiff came tQ the house he occaipies with all the 
rights which the common law affords, and one of them Is a right to whole- 
some air. Unless the defendant shows a prescriptive right to carry on his 
business in the particular place the plaintiff is entitled to judgment." Tin- 
dal, C. J., in Bliss v. Hall, 4 Bing. N. C. 1S3, 1^6 (1S38). Ace: Hayden v. 
Tucker, 37 Mo. 214 (18GG), ante, p. 23. 



Ch.2) ^iR 35 

interruption, and which the law gives no power to prevent. The smith 
in the case supposed might protect himself by taking a sufficient curti- 
lage to ensure what he does from being at any time an annoyance to 
his neighbour, but the neighbour himself would be powerless in tlie 
matter. 

Individual cases of hardship may occur in the strict carrying out 
of the principle upon which we found our judgment, but the negation 
of the principle would lead even more to individual hardship, and 
would at the" same time produce a prejudicial effect upon the develop- 
ment of land for residential purposes. The Master of the Rolls in the 
court below took substantially the same view of the matter as ourselves 
and granted the relief which the plaintiff prayed for, and we are of 
opinion that his order 'is right and should be affirmed, and that this 
appeal should be dismissed^ with costs.^'' 

IT A. owned a slaughterhouse that for over 20 years had been emitting 
stenches. B. and C. owned adjacent land ; B.'s being unoccupied, and U.'s 
occupied. They sought an injunction against A. A. claimed a prescriptive 
right. Held, the act was of a character to amount to a nuisance. The court 
then said: 

"Another objection to the defendant's title by prescription is, that until 
lately the plaintiffs suffered no damage from the alleged nuisance, and there- 
fore^quld^ot interpose to prevent its continuance. But It is very clear that, 
where a party's riglTt of property is invaded, he may maintain an action for 
the invasion of his right, without proof of actual damage." Dana v. Valen- 
tine. 5 Mete. (Mass.) 8 (1S42). 

Compare Churchill v. Burlington Water Co., 94 Iowa, 89, 62 N. W. 641^ 
(1895) ; Matthews v. Stillwater Gas & Electric Co., 63 Minn. 49.3, 65 N. W. 947 
(1896) ; Mills v. Hall, 9 Wend. (N. Y.) 315, 24 Am. Dec. 160 (1832). 



36 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

CHAPTER III 

LAND 



2 ROLLE'S ABRIDGMENT, 564: If A. be seised in fee of copy- 
hold land next adjoining the land of B., and A. erect a new house upon 
his copyhold land and part of the house is built upon the confines of 
his land next adjoining B.'s land, if B. afterwards excavates his land 
near to the foundation of A.'s house but no part of the land of A., by 
which the foundation of the house and the house itself fall into the 
pit, still no action Hes by A. against B. ; for it was the fault of A. him- 
self that he built his house so close to the land of B., for he cannot by 
his own act prevent B. from making the best use of his own land that 
he can. P. 15 Car. B. R. [1639] between Wilde and Minsterley, by the 
court after a judgment for the plaintiff. 

But, semble, a man who has land next adjoining my land cannot ex- 
cavate his land so close to mine that thereby my land falls in his pit. 
And so if the action had been brought for this, it would lie. 



BONOMI v. BACKHOUSE. 

(Exchequer Chamber, 1859. El., Bl. & El. 646.) 

WiLLES, J, This is a proceeding in error upon a judgment of the 
Court of Queen's Bench, and was brought to question the decision in 
that case and a judgment of the Court of Exchequer in Nicklin v. Wil- 
liams. In the Court of Queen's Bench Mr. Justice Wightman differed 
from the majority of the Court ; some of whom expressed their opinion 
with very great doubt. 

The question argued before us may be stated in a very few^ words. 
The plaintiff was owner of the reversion of an ancient house.. The 
defendant, more than six years before the commencement of the action, 
worked some coal-mines 280 yards distant from it. No actual damage 
occurred until within the six years. 

Question : Is the Statute of Limitations an answer to the action ? 
Or, in other words, did the cause of action accrue within the six years ? 
The majority of the Court of Queen's Bench thought it did not. 

The right to support of land and the right to support of buildings 
stand upon different footings as to the mode of acquiring them, the 
former being prima facie a right of property analogous to the flow of a 
natural river, or of air; Rowbotham v. Wilson, 8 E. & B. 123 (E. C. 
L. R. vol. 92) ; though there may be cases in which it would be sus- 
tained as matter of grant (see The Caledonian Railway Company v. 
Sprot, 2 Macq. Sc. App. 449) ; whilst the latter must be founded upon 



Ch. 3) LAND 37 

prescription or grant, expi-ess or implied : but the character of the 
rights, when acquired, is in each case the same. The quest ion in this 
case depends upon what is the character of the right ; viz., whether the 
support must be afforded by the neighbouring soil itself, or such a por- 
tion of it as would be beyond all question sufficient for present and 
future support, or whether it is competent for the owner to abstract 
the minerals without liability to an action unless and until actual dam- 
age is thereby caused to his-neighbour. The most ordinary case of with- 
drawal of support is in town property, where persons buy small pieces 
of land, frequently by the yard or foot, and occupy the whole of it with 
buildings. They generally excavate for cellars, and in all cases make 
foundations ; and, in lieu of support given to their neighbor's land by 
the natural soil, substitute a wall. We are not aware that it has ever 
been considered that the mere excavation of the land for this purpose 
gives a right of action to the adjoining owner and is itself an unlawful 
act, although it is certain that if damage ensued a right of action would 
accrue. So also we are not aware that, until the case of Nicklin v. Wil- 
liams, 10 Exch. 259, it had ever been supposed that the getting coal 
or minerals, to whatever extent, in a man's own land was an unlawful 
act, although, if he thereby caused damage to his neighbour, he was un- 
doubtedly responsible for it. The right of action was supposed to arise 
from the damage, not from the act of the adjoining owner in his own 
land. The law favours the exercise of dominion by every one upon 
his own land, and his using it for the most beneficial purpose to himself. 
As we have already said, the defendant's proposition is that the ad- 
joining owner is entitled to have the adjacent land remain in its nat- 
ural condition ; he does not and cannot contend that an artificial sub- 
stitute would prevent a cause of action. For, if he did, if he admitted 
that a man might excavate the natural soil to an extent dangerous to 
the adjoining owner, provided he applied a remedy in time to prevent 
damage, as by putting props or a wall, this consequence would follow : 
that he must have time within which to do it ; and that time would be 
any time until damage resulted ; which, in effect, would be to say that 
there was no cause of action till actual damage. If the defendant is 
right, these consequences follow : whenever a mine or quarry is work- 
ed, the worker may be subjected to actions by all surrounding owners ; 
nay, they would in self-defence be compelled to bring them, if there 
was any reasonable ground to suppose that the working would in time 
produce damage to their property. It would be in vain that the worker 
should say: "You will not be injured; the workings are not injuri- 
ous; if they turn out Hkely to be so, I will take means to prevent it; 
at all events wait till you are injured." Vexatious and oppressive ac- 
tions might be brought, on the one hand; and, on the other, an unjust 
immunity obtained for secret workings of the most mischievous char- 
acter, but the result of which did not appear within six years. The in- 
quiry in such cases would be little better than speculative. The charac- 
ter of the soil, the inclination of the strata, the depth and extent of the 



38 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

works, the distance and nature of the land -supposed to be in danger, 
and other considerations, would make the inquiry of such a character 
that the only prudent verdict would be "Not proven." In many cases, 
damages would be given where none could be sustained ; while they 
would, in other cases, be given where they ought to be withheld. 

JThere is no doubt that for an injury to a right an action lies: but 
the question is. What is the plaintiff's right? Is it that his land should 
remain in its natural state, unaffected by any act done in the neighbour- 
ing land, or is it that nothing should be done in the neighbouring land 
from which a jury would find that damage might possibly accrue? 
There is no doubt that in certain cases an action may be maintained, 
although there is no actual damage. The rule laid down by Serjeant 
Williams, in note (2) to Mellor v. Spateman, 1 Wms. Saund. 346 b, is 
that, whenever an act injures another's right, and would be evidence in 
future in favour of the wrongdoer, an action may be maintained for an 
invasion of the right, without proof of any specific damage. This is a 
reasonable and sensible rule ; but it has no application to the present 
case ; for the act of the defendant in getting the coal would be no evi- 
dence in his favour as to any future act: getting the coal was an act 
done by him in his own soil by virtue of his dominion over it. If the 
question were unaffected by decision, we cannot but think that the 
contention on the part of the plaintiffs in error is correct. That on 
behalf of the defendant is, that the action must be brought within six 
years after the excavation is made, and that it is immaterial whether 
any actual damage has occurred or not. The jury, according to this 
view, would have therefore to decide upon the speculative quesBon, 
Whether any damage was likely to arise ; and ft might well be that 
in many cases they would, upon the evidence of mineral surveyors and 
engineers, find that no damage was likely to occur, when the most seri- 
ous injury afterwards might in fact occur, and in others find and 
give large sums of money for apprehended damage, which in point of 
fact never might arise. This is certainly not a state of the law to be 
desired. On the other hand, the plaintiffs in error rely upon the ordi- 
nary rule that dam-num and injuria must concur to confer a right of 
action, and that, although only one action could be maintained for 
damage in respect of such a claim, nevertheless it would be essential 
that some damage should have happened before a defendant was made 
liable for an act done in his own land. Actions upon contract and 
actions of trespass for direct injuries to the land of another are clearly 
distinguishable. 

No authority is cited in Nicklin v. Williams, 10 Exch. 259, for the 
judgment there given: and, although the judgment in that case is 
distinct upon the point, it nevertheless was extrajudicial ; for before 
the former action was commenced it is obvious that actual damage had 
been sustained; in which case another principle applies, viz., that no 
second or fresh action can under such circumstances be brought for 
subsequently accruing damage: all the damage consequent upon the 



Ch. 3) LAND 39 

unlawful act is in contemplation of law satisfied by the one judgment or 
accord. We are not insensible to the consideration that the holding 
damage to be essential to the cause of action may extend the time dur- 
ing which persons working minerals and making excavations may be 
made responsible ; but we think that the right which a man has is to 
enjoy his own land in the state and condition in which nature has 
placed it, and also to use it in such manner as he thinks fit, subject 
always to this : that, if his mode of using it does damage to his neigh- 
bour, he must make compensation. Appl ying these t^v^ 2jinciplgs_to,_ 
the present case, we t hink that no cause of action accrued for the 
jmere excavation by the defendant in his own land, so long as it caused. 
JIG damage to the plaintiff; and that the cause of action did accrue^ 
wh en the actual damage first occurred. 

We should be unwilling to rest our judgment upon mere grounds of 
policy; but we cannot but observe that a rule of law, or rather the 
construction of a Statute of Limitation, which would deprive a man of 
redress after the expiration of six years, when the act causing the 
damage jvas unknown to him, and when in very many instances he 
would be in inevitable ignorance of it, woul d be harsh, and contrary to 
ordinary principles of law. 

The judgment must therefore be reversed, and judgment given for 
th6 plaintiffs. 

Judgment reversed.^ 

3 The judgment of the Court of the Exchequer Cliamber was affirmed in 
the House of Lords. 9 H. of L. 503 (1S61). 

Ace: Smith v. Seattle, IS Wash. 484, 51 Pac. 1057, 63 Am. St. Kep. 910 
(1898). See Darley Main Colliery Co. v. Mitcliell, L. R. 11 A. C. 127-(188(j) ; 
West Leigh Colliery Co. v. Tunnicliffe & Hampson, [1908] A. C. 27 (1907). 

A. was the owner of the surface of a certain piece of land, and B. of the 
underlying adjacent coal strata. B. so mined that later the surface of A.'s 
land subsided. The subsidence took place more than six years after the 
mining. The court held that A. could not recover from B., saying, inter 
alia: 

"The adjacent owner in this case at some time failed in duty to the owner 
of the surface of this lot. The mere fact that it caved in because the coal 
had been mined underneath demonstrates this failure. When the coal was 
removed without leaving sufficient pillars, or without supplying sufficient 
artificial props, was the time when the subjacent owner failed in an abso- 
lute duty he owed to his neighbor above. And from that dates the cause of 
action. Unless, when the coal was mined, the miner left no pillars, or too 
few, or oTtOo small dimensions for such a mine, or did not replace the coal 
with ample artificial durable props, there was no cause of action." 

"The date of the cave-in and partial destruction of the house is not the 
date of the cause of action ; that was only the consequence of a previous 
cause, whether one month or twenty years before. It is argued that in some 
cases the surface owner could not know by the most careful observation 
whether the mine owner had neglected his duty within six years. We an- 
swer, that is only one of the incidents attending the purchase of land over 
coal mines. It is not improbable that this risk enters largely into the com- 
mercial value of all like surface land in that region. But, however this may 
be, we hold that the miner is not forever answerable for even his own de- 
fault. Further, in no case. is he answerable for the default of his predeces- 
sor before his possession." Noonan v. Pardee, 200 Pa. 474, 483, 484, 50 Atl. 
255, 55 L. R. A. 410, 86 Am. St. Rep. 722 (1901). 

A. and B. were adjacent landowners. B. excavated the coal under his 



^^ 



c 



40 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

SMITH V. THACKERAH. 

(Court of Common Pleas, 1866. L. R. 1 C. P. 564.) 

Declaration that the plaintiff was possessed of certain land, and the 
land received lateral support from certain land adjoining thereto, and 
the defendants dug and made on this adjoining land an excavation or 
well near to the land of the plaintiff, and the defendants thereby, and 
for want of ke.eping and continuing the sides of the well shored up, or 
otherwise preventing the consequences hereinafter mentioned, wrong- 
fully deprived the land of the plaintiff of its support, whereby the land 
of the plaintiff sank and gave way, and divers walls, buildings, and 
premises of the plaintiff" on the land sank and were damaged, whereby 
the plaintiff was put to great expense, &c. 

Pleas : Not guilty, and not possessed. 

At the trial before Erie, C. J., at the last Surrey spring assizes, it 
was proved that the plaintiff was possessed of a piece of land on which 
a building had been recently erected, and that the defendants, who 
were neighbouring landowners, dug a well on their own land near to 
that of the plaintiff, and afterwards filled up the well with such loose 
earth that the ground round it sank, and the plaintiff's building was 
injured, causing damage to the amount of £15. 

The jury found, in answer to questions by the Chief Justice, that 
the land of the plaintiff would have sunk if there had been no building 
on it, and that some particles of sand from it would have fallen on to 
the defendants' property, but that the plaintiff would have suffered no 
appreciable damage. 

A verdict was entered for the defendants, with leave to the plaintiff 
to move to enter the verdict for such sum under £15. as the Court 
should direct, on the ground that the facts proved at the trial entitled 
the plaintiff to a verdict without proof of any pecuniary damage. 

Robinson, Serj., obtained a rule nisi pursuant to the leave reserved. 

ErlE, C. J. I am of opinion that this rule should be discharged. 
There is no doubt that a right of action accrues whenever a person 
interferes with his neighbour's rights, as, for example, by stepping on 
his land, or, as in the case of Ashby v. White, 1 Sm. L. C. (5tli Ed.) 
216, interfering with his right to vote, and this though no actual dam- 
age may result. But for a man to dig a hole in his own land is in itself 
_a perfectly lawful act of ownership, andjt only becomes a wrong if it 
injures his neighbour; and since it is the injury itself which gives rise 
to the right of action, there can be no right of action unless the dam- 
age is of an appreciable amount. A person may build a chimney in 
front of your drawing room, and the smoke from it may annoy you, or 

land. Later B. died, devising the land to C. C. did not work the mines. 
Thereafter A.'s land subsided ; this subsidence being caused by the workings 
done by B. Held, A. has no cause of action against C. Hall v. Norfolk, 
[1900J 2 Ch. 493. See, also, Greeuwell v. Coal Co., L1897] 2 Q. B. 165. 



Ch. 3) LAND 41 

he may carry on a trade next door to your house the noise of which 
may be inconvenient ; but unless the smoke or noise be such as to do 
you appreciable damage, you have no right of action against him for 
what is in itself a lawful act. In the case of St. Helen's Smelting Com- 
pah^vTTipping, 11 H. L. C. 642, 35 L. J. (Q. B.) 66, in which the de- 
fendant had set up some chemical works, the House of Lords held that, 
if the noxious vapours did not cause material damage to the plaintiff, 
he had no cause of action. In the present case the digging the well and 
filling it up again were in themselves perfectly lawful acts, and the 
jury have found that they did no sensible damage to the plaintiff, and 
he has therefore no right of action. 

BylSS, J. I am of the same opinion. In actions for a trespass the 
trespass itself is a sufficient cause of action. But in actions for indirect 
injuries like the present, the judgment of the House of Lords in Bon- 
omi V. Backhouse, 9 H. L. C. 503, 34 L. J. (Q. B.) 181, shews that there 
is no cause of action if there be no damage, and I cannot distinguish 
between no appreciable damage to the land in its natural state and no 
damage at all. 

Montague Smith, J. I am of the same opinion. The mere sub- 
sidence of the surface of the soil is not necessarily an injury, and we 
are bound by the verdict of the jury, who found that in fact no appre- 
ciable damage would have occurred if these new buildings had not been 
on the land. 

Rule discharged.* 

2 A coal company so mined as to cause a public highway and adjacent 
land gradually to sink to a depth of 10 feet. No actual damage was done 
to the highway nor was it rendered thereby less convenient. In an action 
against the coal company, Collins, J., said: "I have no doubt whatever that 
such an action, would lie without proof of pecuniary loss. I think the prin- 
ciple at the root of the matter is, that the owner is entitled to have his land 

^■^ "remain in its natural state, unaffected by any act done in the neighbouring 
land": see per Willes, J., delivering the judgment of the Exchequer Cham^ 
ber in Bonomi v. Backhouse, E., B. & E. 622. at page 657, and that as soon 
as the condition of the plaintiffs' land has been in fact changed to a sub- 
stantial extent by the withdrawal of lateral support, the plaintiff has sus- 
tained an injuria for which he may maintain an action without proof of 
pecuniary loss. In the same case, Willes, J., compares the right to that in 
the flow of a natural river — a right which is unquestionably invaded where 
a sensible alteration has been produced in the character of the water where 
it passes the plaintiff's land, although there is no money damage. Another 
source of some confusion is that damage not measurable in money has been 

v_ treated as equivalent to a physical alteration so small as to amount to noth- 
ing in contemplation of law — an observation which may perhaps explain 
.Smith V. Thackerah, Law Rep. 1 C. P. 564, which is the only case, so far as 
I know, which might seem to throw doubt on the principle which I have 
stated." Attorney General v. Conduit Co., [1895] 1 Q. B. 301, 311, 313 (1894). 






^ '^ ^ ^^c^-t'^ C^-^iy€^u^,K^ZZ^a-yC(^ <c^iU^ 






42 



RIGHTS INCIDENTAL TO POSSESSION 



(Part 1 



CORPORATION OF BIRMINGHAM v. ALLEN, 



(Chancery Division, 1877. L. R. 6 Ch. Div. 284.) 

This was an action by the Corporation of Birmingham, who were 
the owners of gasworks called the Swan Village Gasworks, to restrani 
the Defendants, T. H. Allen and T. E. Holden, who were proprietors 
of Swan Farm Colliery, in the neighborhood of the gasworks, from 
working their coal in such a manner as to cause subsidence of thejsur- 
face of the plaintiffs' land. 

The plaintiff's purchased the gasworks from the Birmingham & Staf- 
fordshire Gaslight Company in the year 1875. 

The gas company purchased the land on which the works were erect- 
ed together with the minerals under the same, in the year 1824. They 
afterwards purchased the minerals under various pieces of land ad- 
joining their property, for the purpose of preventing the surface of 
their own land from being shaken or disturbed. Among others they 
purchased, in 1872, the minerals under a piece of land belonging to 
Messrs. Pershore & Gregory which adjoined the western boundary of 
the gasworks. The defendants' colliery lay to the west of this piece 
of land, to which it adjoined, so that the piece of land lay between the 
properties of the plaintiffs and the defendants. 

' The seams of coal under the district were as follows: The brooch 
f^^^'t^^cosX, 3 ft. 9 in. thick, about ninety yards from the surface. 



^. 



^' 




The thick coal, 28 ft. 9 in. thick, about 156 yards from the surface. 

The heathen coal, 3 ft. 6 in. thick, about 156 yards from the surface. 

The new mine coal, 5 ft. 6 in. thick, about 185 yards from the sur- 
face. 

The thick coal under the piece of land purchased by the gas com- 
pany in 1872 had been worked out more than thirty years before they 
purchased it, and the superincumbent earth was propped by pillars in 
the usual way. 

The thick coal under the gasworks had not been vvorked out when 
the company purchased the site in 1824; but in the year 1834 they 
granted the thick coal under a small portion of the surface to Messrs. 
Bagnall & Haynes, who worked it out. Some of the area thus granted 
was exactly under the retorts of the gas company. 

The defendants were now engaged in working the lowest vein, or 
new mine coal, under their land. They worked from west to east, and 
in doing so approached within a few yards of the western boundary of 
land purchased by the gas company in 1872. 

The plaintiffs claimed that the working of the new mine coal by the 
defendants had already caused a subsidence of the surface of their land 
and the buildings thereon erected, and would, if persisted in, cause 
them great injury and they brought this action for an injunction ac- 
cordingly. 



Ch.3) ^ LAND 43 

The defendants pleaded that, if any subsidence of the plaintiffs' land 
had taken place, it had been caused partly by the excavations of thick 
coal under the plaintiffs' own land by the lessees of the gas company, 
and partly by the erection of buildings within the last twenty years 
over such excavated portions; and they denied that they were under 
any Hability to the plaintiffs in respect of any injury they had sus- 
tained. 

Both sides went into evidence at great length. The trial came on be- 
fore the Master of the Rolls on the 15th of March, 1877, and witness- 
es were examined on both sides. 

The result of the evidence is stated in the judgment of the Master of 
the Rolls. 

JessEL, M. R. I am of opinion that the plaintiffs' case entirely fails. 
We have had a most careful and, I think, a most exhaustive investiga- 
tion into the facts, and, as far as I am concerned, I have no doubt upon 
any of the facts necessary to be decided. 

I think it is plain that if the land adjoining the plaintiffs' land had 
not been undermined, the defendants might work the new mine seam 
as well as tlie thick coal seam up to their boundary. [His Lordship 
then referred to the evidence on this point.] 

Now, looking to this evidence, and considering that it is for the plain- 
tiffs to prove their case, I am of opinion that it is proved satisfactorily 
that, supposing the land between the plaintiffs' and the defendants' land 
had remained in its natural state, if the defendants' workings should 
be prosecuted up to the boundary of their property, they would not, as 
far as the new mine is concerned, cause any injury whatever to the 
plaintiffs' works. 

Then there is a second question, which is a question of fact I think 
I ought to give my opinion upon. Has the working of the defendants' 
new mine at all actually injured the plaintiffs' buildings? I am clear 
it has not. [His Lordship then considered the evidence on this part 
of the case, and considered that there was no evidence of injury al- 
ready received.] 

Then comes the question, Will it occasion injury? As to that, the 
evidence is very conflicting. Mr. Cooksey puts the safe distance as 
100 yards, and although there is a little variation, the plaintiff's' experts 
substantially agree in putting the safe distance at 100 yards, or fifty- 
five yards from the defendants' boundary. The defendants' four ex- 
perts also substantially agree, and they put it at sixty yards, or fifteen 
yards from the defendants' boundary. Here, again, it is for the plain- 
tiffs to make out their case, and it seems to me to be mere surmise on 
both sides'. However, I must say, if it were necessary to decide the 
case on that ground, that it is not proved to my satisfaction that more 
than sixty yards is required, that is, more than fifteen yards from the 
boundary. 

[His Lordship, after considering certain subordinate questions of 
fact, continued:] 



44 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

I now come to a point of very great difficulty indeed, on which the 
evidence is in a very singular condition. The plaintiffs themselves, or 
their predecessors in title, had allowed a portion of their land to be un- 
dermined, that is, had allowed coal to be extracted from under that 
land, and the question was, whether the extraction of that coal in any 
way interfered with the support of the retort houses. Now the odd 
part of the matter is, that the experts for the plaintiffs said that it 
would interfere with the support, and increase subsidence; and the 
experts of the defendants said it would not. Under these circumstanc- 
es I think it is only fair to say that, as against the plaintiffs, they can- 
not reject the evidence of their own experts, and therefore I must con- 
sider that it does affect it to some extent, but considering the evidence 
of the defendants' experts, not to a material extent. That is the way 
that matter appears to me. 

Now, having so far dealt with the facts, let me consider the law. 
As I understand, the law was settled by the House of Lords, confirm- 
ing the decision of the Court of Exchequer Chamber in the case of 
Backhouse v. Bonomi, 9 H. L. C. 503, tl^at every landowner in the 
kingdom has a right to the support of his land in its natural state. It 
is not an easement: it is a right of property. That being so, if the 
plaintiffs' land had been in its natural state, no doubt the defendants 
must not do anything to let land slip, or go down, or subside. If they 
were doing an act which it could be proved to me by satisfactory ex- 
pert evidence would necessarily have that effect, I have no doubt this 
court would interfere by injunction on the ground upon which it al- 
ways interferes, namely, to prevent jrreparable damage when the dam- 
age is only threatened. Of course they must have a much clearer and 
much stronger case to call for the interference of this court by injunc- 
tion where the damage is merely threatened and no damage has actual- 
ly occurred, than when some damage has actually occurred, because in 
the one case you have no facts to go by, but only opinion, and in the 
other case you have actual facts to go by. If some damage has oc- 
curred it makes it manifest and certain that further damage will occur 
by reason of the prosecution of the works. 

Now in this case, if it stands at all, it may well stand merely on 
opinion evidence, which would be sufficient ground for interference, 
if all the experts agreed and the court were satisfied that damage had 
occurred ; and I think when I compare the evidence of these various 
experts, I must take it for this purpose as proved that if the defend- 
ants work within fifteen yards of their boundary, and in their new 
mine coal, damage, and serious damage, will accrue to the plaintiffs' 
buildings. But the question I have to decide is whether in law that 
entitles them to an injunction. I think it does not. In this case it 
is true the plaintiffs or their predecessors acquired the mineral area, 
and acquired some of the land after the thick coal had been worked out 
and not before; but for the present purpose I lay out of considera- 
tion the fact of their ownership of anything, and I will treat the case 



Ch. 3) LAND 45 

as if the portions under which they possess the minerals, and the land 
so subsequently acquired, did not belong to them, and it appears as the 
result of the evidence that if that thick coal had not been extracted 
from under these portions of land, the intended operations of the de- 
fendants would certainly not cause any substantial injury. 

But it is said that, inasmuch as these operations have occurred in 
what I will call the intervening land, and have thereby weakened the 
support, it will entitle the plaintiffs to prevent the owners of the land 
on the other side of this intervening land from working their mines in 
the way they could otherwise have worked them. But the first ques- 
tion one asks is, Why ? Why should the act of the intervening owner, 
that is, the owner of the intermediate land, deprive men of their rights 
to their mines ? It strikes one at once as a most extraordinary proposi- 
tion. The act of the intervening owner for this purpose is rightful as 
regards the mine owners whose mines are asked to be confiscated ; for 
that is what it comes to. If they cannot work them they are confiscated. 
The plaintiffs ask for the confiscation of their property, not because 
they have done any wrong, for they have done no wrong — not because 
the intervening owner "has done any wrong, for he only worked his 
mines, and when he worked them he occasioned no injury to the per- 
son who owned the property on the other side ; but it is said that in- 
asmuch as he has taken out his coal first, the defendants are deprived 
of the right of getting their mines. I say it is a startling proposition, 
and one which appears to me so unfounded in reason that I should be 
very loth indeed to believe it was founded in law. 

Now, what is the right of the adjoining owner? As I said before, 
it is to the support of his land in his natural state — support by whom? 
The Judges have said, "Support by his neighbour." What does that 
mean ? Who is his neighbour ? It was contended that all the landown- 
ers in England, however distant, were neighbours for this purpose if 
their operations in any remote degree injured the land. But surely that 
cannot be the meaning of it. The neighbouring landowner to me for 
this purpose must be the owner of that portion of land, whether a wider 
or narrower strip of land, the existence of which in its natural state is 
necessary for the support of my land. As long as that land remains in 
its natural state, and it supports my land, I have no rights beyond it, 
and therefore it seems to me that he is my neighbour for this purpose. 
There might be land of so solid a character consisting of solid stone, 
that a foot of it Avould be enough to support the land. There might be 
other land so friable and of such an unsolid character that you would 
want a quarter of a mile of it. But whatever it is, as long as you have 
got enough land on your boundary, which left untouched will support 
your land, you have got your neighbour's land whose support you are 
entitled to. Beyond that it would appear to me you have no rights. 

Well, that being so, it is clear upon the evidence that the interven- 
ing portions of land between the boundary of the plaintiffs' and the 
boundary of the defendants' land was sufficient in its natural state for 



46 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

the support of the plaintiffs' building. Therefore it a ppears to me jthat 
the plaintiffs have no rights as against the landowners on the oth^_side_ 
of that intervening space, and that they acquire no rights whatever the 
owner of the intervening land may have done; and, if the act of the 
intervening owner has been such as to take away the support to which 
the first landowner who complains is entitled, then, for whatever dam- 
age occurs from the act which he has done, the first owner may have 
an action, but an action against the intervening owner, not an action 
against the owner on the other side ; and it appears to me that it would 
be really a most extraordinary result that the man upon whom no re- 
sponsibility whatever originally rested, who was under no liability what- 
ever to support the plaintiffs' land, should have that liability thrown 
upon him without any default of his own, without any misconduct or 
any misfeasance on his part. I cannot believe that any such law ex- 
ists or ever will exist. It appears to me, therefore, that the plaintiffs 
are not entitled to damages for the acts of the defendants, and that the 
only order I ought to make is to dismiss the action with costs.^ 



FOLEY V. WYETH. 

(Supreme Judicial Court of Massachusetts, 1S61. 2 Allen, 131, 79 Am. Dec. 

771.) 

Merrick, J.* The declaration alleges that the plaintiff was seized 
and possessed of the parcel of land described therein, together with a 
right of way in common with other persons, in two passage ways ad- 
joining and appurtenant thereto ; and that jthe d.ef endant dug a large 
and deep pit in her own land, whereby a considerable portion of his 
land caved in_and was removed, and the said passage ways were made 
useless and impassaHe! 'And, from the statement of facts reported, it 
appears that the plaintiff had contracted in writing to purchase the 
premises for a valuable consideration to be subsequently paid, and that 
in the mean time he was in the possession and occupation of the prem- 
ises by the Hcense of Erastus Hutchinson, the owner with whom the 
contract of sale was made. Proof of the alleged excavation and in- 
jury to his land and passage ways having been adduced by the plain- 
tiff, the presiding judge ruled that this was sufficient to entitle him to 
maintain his action, and t4iat for this purpose it was not incumbent on 
him to show also that the excavation was made by the defendant in a 
careless, negligent and unskilful manner. 

This ruling was correct. If the owner of land makes an excavation 

3 The decision was affirmed by the Court of Appeal. L. R. 6 Ch. Div, 
292 (1877). 

Compare Brown v. Robins, 4 Hurls. & N. 186 (1859), Murray v. Pannaci, 64 
X. J. Eq. 147, 53 Atl. 595 (T902). 

The opinions of James, Ba^gallay, and Brett, L. J., are omitted. 

* Part of the opinion is omitted. 



Ch. 3) LAND 47 

in it so n ear to the adjoining land of another proprietor that the soil 
j)i the la tter breaks away and falls into the pit, he is responsible for all 
the dam age thereby occasioned. Few principles of the law can be trac- 
ed to an earlier or to a more constant recognition, through a long se- 
ries of uniform and consistent decisions, than this. It is distinctly stat- 
ed in 2 Rol. Ab. 564. In Gale & Whatley on Easements, 215, it is said 
that "the right to support from the adjoining soil may be claimed either 
in respect of the land in its natural state, or land subjected to artificial 
pressure by means of buildings or otherwise." In the former case the 
right is not an easement, but is a right of property as being necessarily 
and naturally attached to the soil. Id. 216. And in the recent case of 
Humphries v. Brogden, 12 Ad. & El. (N. S.) 739, where the law upon 
the subject appears to have been fully and carefully investigated and 
considered, it is affirmed that the right to lateral support from the ad- 
joining soil is not like the support of one building upon another, sup- 
posed to be gained by grant, but is a right of property which passes 
with the soil, so that if the owner of two adjoining closes conveys 
away one of them, the alienee, without any grant for that purpose, is 
entitled to the support of the other close the very instant when the con- 
veyance is executed. "And this doctrine," said Lord Campbell, C. J., 
after an examination of the authorities in which it is recognized, and 
by which it is sustained, "stands on natural justice, and is essential to 
the protection and enjoyment of property in the soil." 

The same principle is' asserted by this court in the opinion given by 
Parker, C. J., in the case of Thurston v. Hancock, 12 Mass. 220, 7 Am. 
Dec. 57. The decision in the case of Lasala v. Holbrook, 4 Paige (N. 
Y.) 169, 25 Am. Dec. 524, is to the same effect. Radcliff v. Mayor, 
&c., of Brooklyn, 4 N. Y. 195, 53 Am. Dec. 357; Richardson v. Ver- 
mont Central Railroad, 25 Vt. 465, 60 *Am. Dec. 283 ; Solomon v. The 
Vintners' Company, 4 Hurlst. & Norm. 585. It is a necessary conse- 
quence from this principle that, for any injury fo his soil resulting from 
the removal of the natural support to which it is entitled, by means of 
excavation on an adjoining tract, the owner has a legal remedy in an 
action at law against the party by whom the work has been done and 
Ihe mischief Thereby "occasioned. This does not depend upon negli- 
gence or unskil fulness, but upon the violation of a right of property 
wljich^ has been invaded and disturbed.,^ This unqualified rule is lim- 
ited to injuries caused to the land itself, and does not afford relief for 
damages^By~THe~same means to artificial structures. For an injury to 
buildin gs, which is unavoidably incident to the depression or~slide of 
the soil on which they stand, caused by the excavation of a pit on ad- 
joining land, an action can only be niamtaincd when a want of due 
care or sk ill, or positive negligence, has contributed to produce it. 

The jury were therefore correctly advised that, if the defendant, by 
excavations in her own land, and by carrying away large quantities of 

6 Ace: McOuire v. Grant, 25 N, J. Law, 356, 67 Am. Doc. 49 (iS5G). 



'48 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

earth and clay therefrom, caused the adjoining land to fall and sink 
into the pit which she had dug, she was hable for the injury done to 
the soil of the plaintiff; and that this action might be maintained to 
recover damages for the interruption and disturbance of his right of 
way in the passage ways, as well as for depriving him, or lessening the 
value, of the use of the land to which they were appurtenant. But it 
was erroneous, in the absence of any proof of carelessness, negligence 
or unskilfulness in the execution of the work, to add that they might 
take into consideration as an element of damage for which compensa- 
tion could be recovered, the fact that the foundation of his house had 
been made to crack and settle. * * * a 

The defendant excepts to the refusal of the court to instruct the 
jury, in conformity to his request, that, if the injury complained of was 
in any degree caused by, or would not have occurred but for, the ad- 
ditional weight of buildings erected on their land by persons other than 
the plaintiff, he could not recover in this action. But this instruction 
was properly withheld. Whether, if the pressure of the weight of ar- 
tificial structures which the owner has placed upon his own land for 
a lawful purpose and in its reasonable use, contributes to cause a slide 
or crumbling away of his soil into a pit excavated in an adjoining close 
by another proprietor, this will deprive him of the right to remunera- 
tion for the injury sustained, may be considered to be at least open to 
denial. It may be determined when the precise question arises. It does 
not arise here. 

But as to tlie much broader proposition asserted by the defendant 
in her request, we think there is no room for doubt. The absolute and 
unqualified right of property which vests in the owner of land cannot 
be diminished or lawfully affected by the acts or proceedings of stran- 
gers in the use and appropriation of that which belongs to them; and 
therefore he who, in the execution of an enterprise for his own benefit, 
changes the natural condition of the parcel of territory to which he 
has title, and thereby takes away the lateral support to which the owner 
of the adjoining estate is entitled, cannot exonerate himself from re- 
sponsibility by showing that the particular injury complained of would 
not have occurred if other persons had never made alterations in or 
improvements upon their respective closes. Brown v. Robbins, 4 
Hurlst. & Norm. 186. His right of dominion over his own land is not 
without some limitations. To make a justifiable use of his own, he 
must have a proper respect to the appropriation which has already been 
made by other owners of the surrounding territory. And therefore, 
when one undertakes to make an excavation on his land, he must con^ 

6Acc.: Moellering v. Evans, 121 Ind. 195, 22 N. E. 989, 6 L. R. A. 449 
(1889); Winn v. Abeles, 35 Kan. 85, 10 Fac. 443, 57 Am. Rep. 138 (1886); 
Matulys v. Philadelphia & Reading Coal & Iron Co., 201 Pa. 70, 50 Atl. 823 
(1902). 

Contra: Brown v. Robbins. 4 H. & N. 186 (1859) ; Stearns v. City of Rich- 
mond, 88 Va. 992, 14 S. E. 847, 29 Am. St. Rep. 758 (1892). 



Ch. 3) LAND 49 

sider how it will be likely, in view of the existing and actual occuga- 
tion^oTothers, to affect the soil of his neighbor. 

For the reasons stated, it is apparent that the verdict cannot be af- 
firmed for the sum which the jury have found as the damages sus- 
tained; and accordingly it must be set aside and a new trial granted.^ 



CHARLEvSS V. RANKIN. 
(Supreme Court of Missouri, 1856. 22 Mo. 56G, 66 Am. Dec. 642.) 

This was an action to recover damages for injuries alleged by plain- 
tiff, Joseph Charless, in his petition to have been sustained by him in 
consequence of the "negligent, unskillful and improper manner" in 
which defendant, David Rankin, made certain excavations upon a lot 
adjoining that of plaintiff, which, by undermining the foundations of 
plaintiff's building, caused the walls thereof to fall. 

The defence set up was substantially a denial of the ne^igence aj- 
leged in the petition. * * * 

On motion of the plaintiff, the court gave the following instructions 
to the jury, to the giving of which the defendant excepted: "If the 
jury believe from the evidence that the digging for the foundation 
of defendant's building was performed in a reckless, negligent, or 
improper manner, and that by reason thereof plaintiff's house was 
thrown down, then plaintiff is entitled to recover such damage as he 
has sustained by the throwing down of his house. (2) If the jury 
believe from the evidence, that the fall of plaintiff's building might 
have been prevented by the exercise of reasonable care and skill on 
the part of those who were digging defendant's cellar, and that, owing 
to their failure to exercise such care and skill, damage resulted to 

7 Where A. by excavating caused B.'s land to sink tlie court said, as to 
B.'s measure of damages: 

"It is agreed that the 'damages occasioned to the plaintiff, by loss of and 
injury to her soil alone, caused by the acts of the defendant, amount to 
ninety-five dollars.' We are of opinion that she is entitled to recover that 
sum, and no more. She is clearly not entitled to recover the cost of putting 
her land into and maintaining it in its former condition, because that is no 
test of the amount of the injury. McGuire v. Grant, 1 Dutcher [25 N. J. Law] 
356 [67 Am. Dec. 49]. She cannot recover the difiference in market value, 
because it does not appear that that difference is wholly due to the Injury 
to her natural right in the land ; it may depend upon the present shape of 
the lot. upon the improvements thereon, or upon other artificial circumstances 
which have nothing to do with the natural condition of the soil." Gilmore 
v. Driscoll, 122 Mass. 199, 209, 23 Am. Rep. 312 (1877). Ace: Schultz v. 
Bower, 64 Minn. 123, 66 N. W. 139 (1896). Compare Wednesbury v. The 
Ivodge Holes Co., [1907] 1 K. B. 78. 

The principles of lateral support also apply to subjacent support, where 
the strata are separately owned. See Humjjhries v. Brogden. 12 A. <& K. 
(N. S.) 739 (1848) ; Yandes v. Wright. 66 Ind. 319, 32 Am. Rep. 109 (1879) ; 
Noonan v. Pardee, ante, p. 39. 



Big. Rights — 4 



>j./> 



< 



IL^ ^S. 



50 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

plaintiff's building, then plaintiff is entitled to recover in this action 
such an amount of damages as he may prove he has sustained by the 
fall of his building. (3) In excavating by the side of another's build- 
ing, it is the duty of the person having the excavating done to use such 
care and caution, to prevent injury to such building, as a sensible and 
prudent man, experienced in such work, would exercise, if he were 
the owner of the building; and the omission of such care and caution 
is culpable negligence, and renders the person having the excavating 
done .liable for all the damages resulting therefrom, (6) The measure 
of damages in this case is the amount of money required to rebuild 
plaintiff's house as it was before the fall, and the value of the house 
thrown down to plaintiff during the time necessarily taken to rebuild it, 
with the interest on those amounts from the time when the house was 
completed, after its fall, to the present time." * * * s 

Leonard, Judge. The right to support from the adjoining soil may 
be claimed either for the land in its natural state, or for it subjected to 
an artificial pressure by means of building or otherwise. The right 
in the former case would seem to be a natural servitude or ease- 
ment belonging to contiguous lots, and accordingly it was recognized 
and protected in the Roman law by specified regulations, and similar 
provisions have been introduced into the civil code of France. (Code 
Civil, art. 614.) We are not aware of any express common law deci- 
sion upon this subject; but we find it said of old, in Rolle's Abr. 564, 
tit. Trespass : "It seems that a man who has land closely adjoining my 
land, cannot dig his land so near mine that mine would fall into his 
pit, and an action brought for such an act would lie ;" and in Wyatt v. 
Harman, (3 Bam. & Adol. 874), Lord Tenterden remarked* in deliv- 
ering the judgment of the court of king's bench : "It may be true that, 
if my land adjoins that of another, and I have riot, by building, in- 
creased the weight upon my soil, and my neighbor digs in his land, so 
as to occasion mine to fall in, he may be liable to an action." 

When, however, the lateral pressure has been increased by the 
erection of buildings, it seems to be well settled at common law by 
authorities, that no man has a right to an increased support unless_he 
has acquired such a servitude by gr ant or prescription. It is so laid 
down in the early case of Wilder v. Minsterly (2 Rolle's Abr. 564). 
* * * And Lord Tenterden, in delivering the judgment of the 
court in the case before cited, said : "The question reduces itself to 
this: if a person builds to the utmost extremity of his own land, and 
the owner of the adjoining land digs the ground there, so as to remove 
some part of the soil which formed the support of the building so 
erected, whether an action lies for the injury thereby occasioned. 
Whatever the law might be, if the damage complained of were in 
respect of an ancient messuage, possessed by the plaintiff, at the 
extremity of his own land, which circumstance of contiguity might im- 

8 Parts of the statement of facts and part of the opinion are omitted. 



Ch. ?>) . Land 51 

ply the consent of the adjoining proprietor at a former time to the 
erection of the building in that situation, it is enough to say in this 
case that the building is not alleged to be ancient, but may, as far as 
appears from the declaration, have been recently erected, and if so, 
then, according to the authorities, the plaintiff is not entitled to re- 
cover." In the more recent case of Partridge v. Scott, (3 Mees. & 
Wels. 220,) which involved the same question, it is said: "If a man 
builds his house at the extremity of his land, he does not thereby ac- 
quire any right of easement, for support or otherwise, over the land 
of his neighbor. He has no right to load his own soil so as to make 
it require the support of that of his neighbor, unless he has some grant 
to that effect ;" and the American cases are, it is believed, to the same 
effect. (Thurston v. Hancock, 12 Mass. 221, 7 Am. Dec. 57.) 

Although not altogether in good taste, I repeat, as applicable to the 
present case, what I had occasion to say in a former case. It is a 
logical consequence from legal principles, that to the extent to which 
a person has a right to act, others are bound to suffer; and that any 
damage that may accrue to them, while a person thus exercises his own 
rights, affords no valid ground of complaint. The loss occasioned in 
such cases is "damnum absque injuria." Every person, however, who 
is performing an act is bound to take some care in what he is doing. 
He can not exercise his own indisputable rights without observing 
proper precaution not to cause others more damage than can be deemed 
fairly incident to such exercise. In Wallars v. Pfeil, (Mood. & Alalk. 
364,) the plaintiff had neglected to take any precaution by shoring up 
their own houses within, or in any other way against the effect of 
pulling down the defendant's adjoining house ; and it appeared that 
this might have been so done that the accident would not have hap- 
pened to the same extent. There was also evidence to show that the 
accident was owing to the bad foundation of the plaintiff's house; 
but there was conflicting evidence as to whether, by due care on the 
part of the defendant's workmen, the mischief might have been entirely 
avoided.^ In summing up, the chief justice of the queen's bench stated 
it to be now settled that the owner of premises adjoining those pulled 
down, must shore up his own in the inside, and do every thing proper 
to be done upon them for their preservation ; but, although that had 
not been done, still the omission did not necesscirily defeat the action, 
and that if the_ pulling down \yere irregularly and inigroperly done, 
and an injury were produced thereby, the person so acting would be 
liable, notwithstanding the omission of the plaintiff ; and the jury 
were accordingly charged, that, if the defendant's house was pulled 
down in a wasteful, negligent and improvident manner, so as to occa- 
sion greater risk to the plaintiff than in the ordinary course of doing 
the work he would have incurred, therithe defendant was^ liable to 
make compensation for the consequences of his want of caution; but 

» See Bass v. West, 110 Ga.-69S, 36 S. E. 244 (li)OU). 



52 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

that if they thought fair and proper caution had been exercised, then 
the defendant would be entitled to a verdict. The result of the cases, 
we think, is, (and such would seem to be the reasonable doctrine,) that, 
if a man in the exercise of his own rights of property do damage to his 
neighbor, he is liable, if it might have been- avoided by the use of rea- 
sonable care ; and it seems to be usual in England for a party intending 
to make alterations that may affect his neighbor's premises, to give 
notice of his intention ; but whether any such duty be imposed by 
law (Town v. Chadwick, 8 Scott, 1) need not be inquired into here, as 
the present plaintiff knew of the digging and took measures to pro- 
tect himself against the consequences of it.^*' 

These principles require us, we think, to reverse the judgment, and 
Send the case back for a second trial. We do not think there is any 
erf\.r in the refusal of the defendant's first and fourth instructions. 
A pi;rty may subject himself to responsibility by the want of reasona- 
ble care, although his digging be confined to his own ground and do 
not exceed a reasonable depth; nor is he protected by the fact that 
he used such care as his builder, who was a skillful and careful person, 
deemed necet>i,ary. The question is, as to the fact of negligence, wheth- 
er the work were done in a careless and improvident manner, so as to 
occasion greater risk to the plaintiff than in the reasonable course of 
doing the work he would have incurred, and not whether, in the opin- 
ion of the superiniendent, no matter how skillful he may have been, 
every thing was done that he deemed necessary. His opinion may be 
proper evidence to be considered by the jury, but it does not conclude 
the matter, constituting of itself a bar to the plaintiff's recovery. But 
the error is in plaintiff's third instruction, where an attempt is made 
to define, with precision, the degree of care that must be used in a case 
like the present, in order to exempt a party from liability; and the 
standard there adopted is substantially that care that a prudent man, 
experienced in such work, would have exercised, if he had been him- 
self, the owner of the injured building. Now it is quite evident, we 
chink, that this is going beyond the care that the law exacts upon such 
occasions. It is to be observed that the defendant was upon his own 
ground, and in digging upon it, exercised an undoubted right of prop- 
erty, which the plaintiff had no right, either by express grant or pre- 
scription — by statute or local ordinance — in any way to interfere with 
or prevent; and although, in exercising his rights, it was certainly 

10 "It is the duty of one who makes an excavation on his own land, deeper 
than the foundation of a building on an adjoining lot, and so near to such 
building as to endanger it, to notify the adjoining owner of the proposed ex- 
cavation, and afford him a reasonable opportunity to protect his property, 
and a failure to discharge such duty is negligence, for which an action may 
be maintained for the injury resulting therefrom, unless the adjoining own- 
er had actual knowledge c2 such proposed excavation." Gerst v. St, Louis, 
185 Mo. 191, 209, 84 S. W. 34, 105 Am. St. Rep. 580 (1904). 

Ace: Schultz V. Byers, 53 N. J. Law, 442, 22 Atl. 514, 13 L. R. A. 5G9, 
26 Am. St. Rep. 435 (1891) ; Davis v. Summerfield, 131 N. C. 352, 42 S. E. 818, 
03 L. K, A. 492, 92 Am. St. Rep. 781 (1902). ■ 



Ch. 3) LAND 53 

liis duty to his neighbor to use ordinary care in order to avoid doing 
him harm, he was not bound to observe the same care that he would 
have taken, as a wise and sensible man, if he had been the owner of 
both buildings — the one erected and the one about to be erected. He 
would, of course, in that event, have shored up and would have sub- 
mitted to many inconveniences, and, indeed, would have incurred con- 
siderable additional expense in doing the new work, rather than ex- 
pose the buildings already erected to any risk. Every prudent person, 
in such a situation, would take precautions — subject himself to incon- 
veniences, and forego the exercise of every right that would endanger 
his present building, if he found it for his interest to do so. In the 
present case, if the laying of the new foundation, in very short sec- 
tions, would have been attended with increased expense and with 
danger to the sufficiency of the new wall, and the defendant had been 
the owner of the plaintifif's building, he might have found it for his 
interest to have submitted, and most probably would have submitted, 
to this inconvenience and risk, and even increased expense, to avoid 
all hazard to his own property ; yet the law does not exact of him the 
same forbearance and care and expense for the security of his neigh- 
bor's property that he would have found it for his interest to have 
taken for his own. We do not know that the instruction was intended, 
or indeed understood by the jury in the sense we impute to it. It may, 
however, have been so understood, and if so, could not but have misled 
them; and we shall therefore reverse the judgment, that the case may 
be retried upon a fuller understanding of the facts and of the law 
applicable to them. 
The judgment is reversed, and the cause remanded. ^^ 

1 1 "It is required of the owner of tlie soil, having the right to excavate, 
notwithstanding there are buildings upon adjacent soil, that he shall exer- 
cise his right with reasonable skill and care in view of the character of 
the buildings and the nature of the soil, so as to avoid doing unnecessary in- 
jury to the buildings." City of Quincy v. Jones, 76 111. 2dl, 241, 20 Am. Kep. 
243' (1875). 

"If he [the excavating owner] fails to take such reasonable precautious to 
protect his neighbor's soil and to preserve it in its natural state, he is liable 
for the injury to both the land and the superstructure, if the pressure of the 
superstructure did not cause the land to fall and it fell in consequence of 
the failure to take such reasonable precautions." Gildersleeve v. Hammond, 
109 Mich. 431, 439, 67 N. W. 519, 33 L. R. A. 46 (1896). 

See, also, Covington v. Geyler, 93 Ky. 275, 19 S. W. 741 (1892); Shafer v. 
Wilson, 44 Md. 268 (1876) ; White v. Nassau Trust Co., 168 N, Y. 149, 61 ^•. 
E. 169, 64 L. R. A. 275 (1901) ; Spohn v. Dives, 174 Pa. 474, 34 Atl. 192 (1896). 
For liability under statutes, see Aston v. Nolan, 63 Cal. 269 (1883) ; AlcMillen 
V. Watt, 27 Ohio St. 306 (1875). 

A. excavated on his lot, leaving a strip adjoining B.'s land. B.'s house 
did not fall until, by the action of rain and wind upon the retaining strip, 
brought about by A.'s not finishing his cellar, it was gradually eroded and 
finally became insufficient to retain B.'s land and house. Held, B. has a 
cause of action against A. for the damage caused to the house. Hannicker 
V. Lepper, 20 S. D. 371, 107 N. W. 202, 6 L. R. A. (N. S.) 243, 129 Am. St. Rep. 
938 (1906). See Austin v. Hudson River R. Co., 25 N. Y. 334 (1862). Com- 



54 BIGHTS INCIDENTAL TO POSSESSION (Part 1 

CHAPTER IV 
STREAMS 



EMBREY V. OWEN. 

(Court of Exchequer, 1851. 6 Exch. 353.) 

The plaintiffs were occupiers of a water grist-mill situate on the 
banks of the river "Rhiew," a mountain stream, in the parish of Ber- 
riew, in that county. The defendant Mrs. Owen was the owner of 
land on both sides of that river above the mill ; and this action was 
brought against her for diverting part of the water of the river, for 
the purpose of irrigating certain meadows on the northern bank, 
which were in the occupation of her tenant John Jones. The water 
was diverted by means of an iron trough or aqueduct placed near a 
waste weir, from whence the surplus or waste water was carried into 
the trough or aqueduct, and by it over the river into the main and float- 
ing gutters of the meadows, when required for irrigation ; at other 
times such surplus water was discharged from the trough or aqueduct 
direct into the bed of the river by means of an iron flap or sluice in 
the middle side of the trough, so constructed as to be opened for the 
latter purpose at pleasure. A portion of the water was lost by ab- 
."rorption and evaporation in the process of irrigation; the working 
of the plaintiffs' mill, however, was not in the least impeded ; and tlie 

pare Gilmove v. Driscoll, ante, p. 49 ; Witherow v. Tannehill. 194 Pa. 21, 
44 All. loss (1899) ; compare U. S. v. Peachy (D. C.) 36 Fed. 160 (1S8S). 

A. and B. were adjacent lando.wners. A. started to build ; the land was 
■xX_-<LxO-t>OwM swampy ; and, in excavating a large amount of water worked from B.'s land 
"^^-^-""'^^^^^ ^Q .^ 'g excavation. As a consequence of the withdrawal of this water sup- 
port B.'s house and land sunk and were daniacred. B.'s land would have 



J^L^ <J 



^•£,^,*<**C sunk, even had there been no building on it. Held, B. has no right of action 

^ ^'*-*^**^ against A. Popplewell v. Hodkinson, L. R. 4 Exch. 248 (1869). Ace: New 

York Continental .Tewell Filtration Co. v. Jones, 37 App. D. C. 511, 37 L. K. 

^^^—^-^ A. (N. S.) 193 (1911). Compare Elliot v. N. E. Ry. Co., 10 H. L. Cas. 333 

:^. /f (186.3). 

" A., in excavating on his own land, encountered a stratum of quicksand 

or water-logged soil, which ran from under B.'s land as fast as dug away by 
A. As a consequence B.'« land and house sunk and were damaged. Held, K. 
has a right of action against A. Jordeson v. Gas Co., [1899] 2 Ch. 217. Ace: 
Cabot V. Kingman, 160 Mass. 403, 44 N. E. 344, 33 L. R. A. 45 (1896). 

A. and B. were adjacent owners of lands, the value of which lay in ex- 
tensive substrata of asphalt. B. excavated on his laud immediately up to 
' y^ ,y^ A.'s boundary. The asphalt oozed from A.'s land to B.'s, causing A.'s land 
L^^^ je/<L-C/' and cheap frame buildings thereon to sink. Held, A. may enjoin B. from 
further excavating, and may recover for the damage caused by the subsidence 
-i^/^-J" and the value of the asphalt so obtained by B. Trinidad Asphalt Co. v. Am- 

/ bard, [1899] A. C. 594. See, also, Salt Union v. Brunner, [1906] 2 K. B. 822 ; 

/A J Hendricks v. Spring Valley Miu. & Irr. Co., 58 Cal. 190, 41 Am. iiep. 257 
^'-^^^ (1881). 




Ch. 4) STREAMS 55 

quantity thus lost was differently calculated by scientific .witnesses 
on both sides, a witness for the plaintiffs estimating it at four or live 
per cent., and a witness for the defendant at only one-seventh per 
cent., even in summer. All the witnesses concurred, that there was 
no sensible diminution of the stream by reason of the diversion, that 
is to say, none cognizable by the senses, and that the amount of loss 
was ascertainable only by inference from scientific experiments on 
the absorption and evaporation of water poured out on the soil. 

The learned Judge, with reference to the first issue, left to the 
jury the question, whether there was any sensible diminution of the 
natural flow of the water by means of the diversion; and with refer- 
ence to the other issues, he left it to them to say, in the terms of the 
pleas, whether the quantities of water absorbed and evaporated in the 
process of the defendant's irrigation were small and inappreciable 
quantities ; intimating, however, that he* felt great difficulty in fixing 
a legal meaning on this latter term, but suggesting that it might mean 
"so inconsiderable as to be incapable of price or value." Both the 
questions left to the jury having been answered by them in favour of 
ihe defendant, the former in the negative and the latter in the affirma- 
tive, the learned Judge directed that the verdict should be entered on 
the above issues for the defendant, reserving leave to the plaintiff's to 
move to enter it for them, with nominal damages.^ 

Parke, B. * * * The important question is that which arises 
on the plea of not guilty, the jury having found that no sensible diminu- 
tion of the natural flow of the stream to the plaintiff's mill was caused 
by the abstraction of the water. That the working of the mill was 
not in the least impeded was clear on the evidence. On that finding 
we think the verdict was properly ordered to be entered for the de- 
fendant. 

It was very ably argued before us by the learned counsel for the 
plaintiff, that the plaintiff's had a right to the full flow of the water 
in its natural course and abundance, as an incident to their property in 
the land through which it flowed; and that any abstraction of the wa- 
ter. how ever inconsiderable, by another ripari an pr oprietor, and 
though pro ductive of no actual damage, would be_actionable. be- 
cause it ^yas an injury to a right, and, if continued, ._ would be,. the 
founda tion of a claim of adverse right in that proprietor- 

We byno means dispute the truth of this proposition, with respect 
to every description of right. Actual perceptible damage is not in- 
dispensable as the foundation pf an action ; it is sufficient to show 
the vio lation " of a right, in which case the law will presume damage; 
injuria sine damno is actionable, as was laid down in the case of Ashby 
V. White, 2 Ld. Raym. 938, by Lord Holt, and in many subsequent 
cases, which are all referred to, and the truth of the proposition pow- 
erfully enforced, in a very able judgment of the late Mr. Justice Story 

1 The stateiuont of facts is abridged and part of tlie opiniou is omitted. 



56 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

in Webb v. The Portland Manufacturing Company, 3 Sumn, Rep. 189. 
But in applying this admitted rule to the case of rights to running 
water, and the analogous cases of rights to air and Hght, it must be 
considered what the nature of those rights is, and what is a viola- 
tion of them. * * * 

The right to have the stream to flow in its natural state without 
diminution or alteration is an incident to the property in the land 
through which it passes ; but flowing water is publici juris, not in 
the sense that it is a bonum vacans, to which the first occupant may 
acquire an exclusive right, but that it is public and common in this 
sense only, that all may reasonably use it who have a right of access 
to it, that none can have any property in the water itself, except in 
the particular portion which he may choose to abstract from the stream 
and take into his possession, and that during the time of his possession 
only. See 5 B. & Ad. 24. But each proprietor of the adjacent land has 
the right to the usufruct of the stream which flows through it. 

This right to the benefit and advantage of the water flowing past 
his land is not an absolute and exclusive right to the flow of all the 
water in its natural state; if it were, the argument of the learned 
counsel, that every abstraction of it would give a cause of action, would 
be irrefragable ; but it is a right only to the flow of the water, and 
the enjoyment of it, subject to the similar rights of all the proprietors 
of the banks on each side to the reasonable enjoyment of the same 
gift of Providence. 

It is only therefore for an unreasonable and unauthorized use, of 
this common benefit that an action will lie ; for such an use it will ; 
even, as the case above -cited from the American Reports shows, though 
there may be no actual damage to the plaintiff. In the part of 
Kent's Commentaries to which we have referred, the law on this sub- 
ject is most perspicuously stated, and it will be of advantage to cite it 
at lefigth : "Every proprietor of lands on the banks of a river has 
naturally an equal right to the use of the water which flows in the 
stream adjacent to his lands, as it was wont to run (currere solebat), 
without diminution or alteration. No proprietor has a right to use 
the water to the prejudice of other proprietors, above or below him, 
unless he has a prior right to divert it, or a title to some exclusive 
enjoyment. He has no property in the water itself, but a simple 
usufruct while is passes along. 'Aqua currit et debet currere' is the 
language of the law. Though he may use the water while it runs over 
his land, he cannot unreasonably detain it, or give it another direction, 
and he must return it to its ordinary channel when it leaves his estate. 
Without the consent of the adjoining proprietors, he cannot divert or 
diminish the quantity of water which would otherwise descend to the 
proprietors below, nor throw the water back upon the proprietors 
above, without a grant, or an uninterrupted enjoyment of twenty years, 
which is evidence of it. This is the clear and settled general doctrine 
on the subject, and all the difficulty tliat arises consists in the applica- 



Ch. 4) STREAMS 57 

tion. The owner must so use and apply the water as to work no ma- 
terial injury or annoyance to his neighbour below him, who has an 
equal right to the subsequent use of the same water; nor can he, by 
dams or any obstruction, cause the water injuriously to overflow the 
grounds and springs of his neighbour above him. Streams of water 
are intended for the use and comfort of man; and it would be un- 
reasonable, and ^contrary to the universal sense of mankind, to debar 
every riparian proprietor from the application of the water to do- 
mestic, "agricultural, and manufacturing purposes, provided the use of 
it be made under the limitations which have been mentioned ; and there 
will, no doubt, inevitably be, in the exercise of a perfect right to the 
use of the water, some evaporation and decrease of it, and some varia- 
tions in the weight and velocity of the current. But de minimis non 
_curat lex, and a right of action by the proprietor below would not 
necessarily flow from such consequences, but would depend upon 
the nature and extent of the complaint or injury, and the manner of 
using the water. All that the law requires of the party by or over 
whose land a stream passes, is, that he should use the water in a 
reasonable manner, and so as not to destroy, or render useless, or ma- 
terially diminish or affect the application of the water by the proprie- 
tors above or below on the stream. He must not shut the gates of his 
dams and detain the water unreasonably, or let it off in ynusual quanti- 
ties, to the annoyance of his neighbour. Pothier lays down the rule 
very strictly, that the owner of the upper stream must not raise the 
water by dams, so as to make it fall with more abundance and rapidity 
than it would naturally do, and injure the proprietor below. But this 
rule must not be construed literally, for that would be to deny all val- 
uable use of the water to the riparian proprietors. It must be sub- 
jected to the qualifications which have been mentioned, otherwise riv- 
ers and streams of water would become utterly useless, either for man- 
ufacturing or agricultural purposes. The just and equitable principle 
is given in the Roman law : 'Sic enim debere quem meliorem agrum 
suum facere, ne vicini deteriorem faciat.' " 

_ln^ America, as may be inferred from this extract, and as is stated 
in the jiidgiTient of the Court of Exchequer in Wood v. Waud, a very 
libera l use of the stream for the purposes of irrigation and for carry- 
ing orT manufactures is permitted. * * * It is entirely a question 
of degre e, and it is very difficult, indeed impossible, to define precisely 
the limits which separate the reasonable and permitted use of the 
stream from its wrongful application; but there is often no difficulty 
in deciding whether a particular case falls within the permitted limits 
or not; and in this we think, that as the irrigation took place, not 
continuously, but only at intermittent periods, when the river was 
full, and no damage was done thereby to the working of the mill, 
and the diminution of the water was not perceptible to the eye, it 
was such a reasonable use of the water as not to be prohibited by law. 
If so, it was no infringement of the plaintift's' right at all; it was only 



58 RIGUTS INCIDENTAL TO POSSESSION (Part 1 

the exercise of an equal right which the defendant had to the usufruct 
of the stream. 

We are therefore of opinion that there has been no injury in fact or 
law in this case, and consequently that the verdict for the defendant 
ought not to be disturbed. 

The same law will be found to be applicable to the corresponding 
rights to air and light. These also are bestowed by Providence for the 
common benefit of man ; and so long as the reasonable use by one man 
of this common property does not do actual and perceptible damage 
to the right of another to the similar use of it, no action will lie. A 
man cannot occupy a dwelling and consume fuel in it for domestic 
purposes, without its in some degree impairing the natural purity of 
the air ; he cannot erect a building, or plant a tree, near the house of 
another, without in some degree diminishing the quantity of light he 
enjoys; but such small interruptions give no right of action; for they 
are necessary incidents to the common enjoyment by all. 



WEBB V. PORTLAND MFG. CO. 

(Circuit Court of the United States, D. Maine, 1S38. 3 Sumn. 189, Fed. Cas. 

No. 17,322.) 

Bill in equity for an injunction by the plaintiff to prevent the de- 
fendant from diverting a watercourse from the plaintiff's mill, and 
for further relief. 

The facts admitted on all sides were, that at the Saccarappi Falls, 
on the river Presumpscut, there were two successive falls, upon which 
there are erected certain mills and milldams, the latter being called tlie 
upper and the lower milldams, and the distance between them is about 
forty or fifty rods; and the water therein constituted the mill-pond 
of the lower dam. The plaintiff is the owner of certain mills and mill 
privileges, in severalty, upon the lower dam, and the defendants are 
entitled to certain other mills and mill privileges on the same dam, 
also in severalty. As to a portion of one of the mills, there was a 
controversy between the parties in regard to title ; but that controversy 
in no essential degree affected the question presented to the court. 
The defendants are the owners of a cotton-factory mill near the left 
bank of the river, and opened a canal for the supply of the water 
necessary to work that mill, into the pond immediately below the upper 
dam ; and the water thus withdrawn was returned again into the 
river immediately below the lower dam. The defendants insisted 
upon their right so to divert and withdraw the water, by means of 
their canal, upon the ground, that it was a small part only, (about one 
fourth) of the water, to which, as mill owners on the lower dam, they 
were entitled ; and that there was no damage whatsoever done to the 
plaintiff's mill by this diversion of the water. * ♦ * 



Ch. 4) STREAMS 59 

Story, Circuit Justice.' The question, which has been argued upon 
the suggestion of the court, is of vital importance in the cause; and, 
if decided in favor of the plaintiff, it supersedes many of the inquiries, 
to which our attention must otherwise be directed. It is on this ac- 
count, that we thought it proper to be argued, separately from the gen- 
eral merits of the cause. The argument for the defendants then pre- 
sents two distinct questions. The first is, whether, to maintain the • 
present suit, it is essential for the plaintiff to establish any actual ^ ^ 

djimage. The, second is, whether, in point of law, a mill owner, having 
a right to a certain portion of the water of a stream for the use of 
his mill at a particular dam, has a right to draw off the same portion, 
or any less quantity of the water, at a considerable distance above 
the dam, without the consent of the owners of other mills on the same 
dam. In connection with these questions the point will also incidentally 
arise, whether it makes any difference, that such drawing off of the 
water above, can be shewn to be no sensible injury to the other mill 
owners on the lower dam. [The court answered the first question in 
the negative.]^ 

But I confess myself wholly unable to comprehend, how it can be 
assumed in a case, like the present, that there is not and cannot be an 
actual damage to the right of the plaintiff. What is that right? It 
is the right of having the water flow in its natural current at all times 
of the year to the plaintiff's mills. Now, the value of the mill priv- 
ileges must essentially depend, not merely upon the velocity of the 
stream, but upon the head of water, which is permanently maintained. 
The necessary result of lowering the head of water permanently, would 
seem, therefore, to be a direct diminution of the value of the privileges. 
And if so, to that extent it must be an actual damage. 

Again, it is said, that the defendants are mill-owners on the lower 
dam, and are entitled, as such, to their proportion of the water of 
the stream in its natural flow. Certainly they are. But where are they 
so entitled to take and use it? At the lower dam; for there is the 
place, where their right attaches, and not at any place higher up the 
stream. Suppose, they are entitled to use, for their own mills on the 
lower dam, half the water, which descends to it, what ground is there 
to say, that they have a right to draw off that half at the head of the 
mill-pond? Suppose, the head of water at the lower dam in ordinary 
times is two feet high, is it not obvious, that by withdrawing at the 
head of the pond one half of the water, the water at the dam must 
be proportionally lowered ? It makes no difference, that the defendants 
insist upon drawing off only one fourth of what, they insist, they 
are entitled to; for, pro tanto, it will operate in the same manner; 
and if they have a right to draw off to the extent of one fourth of 
their privilege, they have an equal right to draw off to the full extent 

2 The statement of facts is abridged and part of tlie opinion is omitted. 

3 See post, pp. 75, 76. 



60 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

of it. The privilege, attached to the mills of the plaintiff, is not the 
privilege of using half, or any other proportion merely, of the water 
in the stream, but of having the whole stream, undiminished in its 
natural flow, come to the lower dam with its full power, and there to 
use his full share of the water power. The plaintiff has a title, not to 
a half or other proportion of the water in the pond, but is, if one may 
so say, entitled per my et per tout to his proportion of the whole bulk 
of the stream, undivided, and indivisible, except at the lower dam. 

A suggestion has also been made, that the defendants have fully 
indemnified the plaintiff from any injury, and in truth have conferred 
a benefit on him, by securing the water by means of a raised dam, high- 
er up the stream, at Sebago Pond, in a reservoir, so as to be capable 
of affording a full supply in the stream in the dryest seasons. To this 
suggestion several answers may be given. In the first place, the plain- 
tiff is no party to the contract for raising the new dam, and has no« 
interest therein ; and cannot, as a matter of right, insist upon its being 
kept up, or upon any advantage to be derived therefrom. In the next 
place, the plaintiff is not compellable to exchange one right for anoth- 
er ; or to part with a present interest in favor of the defendants at 
the mere election of the latter. Even a supposed benefit cannot be 
forced upon him against his will ; and, certainly, there is no pretence 
to say, that, in point of law, the defendants have any right to substi- 
tute, for a present existing right of the plaintiff's, any other, which 
they may deem to be an equivalent. The private property of one man 
cannot be taken by another, simply because he can substitute an equiva- 
lent benefit. 

Having made these remarks, upon the points raised in the argument, 
the subject, at least so far as it is at present open for the consideration 
of the court, appears to me to be exhausted. Whether, consistently 
with this opinion, it is practicable for the defendants successfully to es- 
tablish any substantial defence to the bill, it is for the defendants, and 
not for the court, to consider. 

I am authorized to say, that the district judge concurs in this opin- 
ion. Decree accordingly,* 

* See Blue Ridge Interurban R. Co. v. Hendersville Light & Power Co., 
109 N. C. 471, 86 S. E. 296 (1915). 



Ch. 4) STREAMS 61 

DUMONT V. KELLOGG. 
(Supreme Court of Michigan, 1S74. 29 Mich. 420, 18 Am. Rep. 102.) 

CooLEY, J.' The grievance complained of by Kellogg in the court 
below was that Dumont had constructed a dam across a natural wa- 
ter course, and by means thereof wrongfully detained the water in the 
stream to_tlTe_prejudice and injury of the plaintiff, who was proprietor 
of a mill previously erected on the stream below. The reservoir cre- 
ated by defendant's dam was quite a large one, and plaintiff gave evi- 
dence that the flow of water in the stream below was considerably 
diminished by the increased evaporation and percolation resulting from 
the construction of this dam. The plaintiff had judgment in the court 
below, and the case comes here upon exceptions, the errors princi- 
pally relied upon being assigned upon the instructions to the jury, 
and involving the relative rights of riparian proprietors to make use 
of_the_waters of a running stream which is common to both, and to 
delay its flow for that purpose. 

The instructions given were numerous, and the most of them were 
unexceptionable. Others appear to be based upon a view of the law 
which is not to be reconciled with the authorities. Of these are the 
following : 

"Every proprietor of lands on the banks of a stream, and every 
mill owner, has an equal right to the flow of the water in the stream 
as it was wont to run, without diminution or alteration ; no proprietor 
has the right to use the water to the prejudice of the proprietors be- 
low him, without the consent of the proprietors below; he cannot 
divert or diminish the quantity which would otherwise descend to the 
proprietors below. 

"He must so use the water as not materially to affect the application 
of the water below or materially diminish its quantity. 

"If the jury find, from the evidence, that Dumont's dam and pond 
have diminished, by the increased evaporation and soakage occasioned 
by it, the flow of the water in the Dumont creek one-third, or any 
other material amount, and that the plaintiff has sustained damages 
thereby, then the plaintiff is entitled to recover in this action. 

"The rights of a riparian proprietor are not to be measured by the 
reasonable demands of his business. His right extends to the use of 
only so much of the stream as will not materially diminish its quantity, 
so that in this case the question whether defendant needs the water as 
he uses it in his business is entirely immaterial. 

"The defendant had the right to build a dam upon his land, but 
he must so construct the dam and so use the water as not to injure 
the plaintiff below in the enjoyment of the same water, according to 
its natural course." 

B Part of the opinion is omitted. 



62 RlGrHTS INCIDENTAL TO POSSESSION (Part 1 

In endeavoring to determine the soundness of these instructions, 
we may dismiss from the mind the fact that the plaintiff had first put 
the waters of the stream to practical use, since that fact gave him no 
superiority in right over the defendant. The settled d octrin e now 
is that priority of appropriation gives to one proprietor no_superior 
right to that of the others, unless it has been continued for a period, 
of time, and under such circumstances as would be requisite to estal> 
lish rights by prescription. * * * It is not claimed that any ques- 
tion of prescription is involved, and the case is co nsequent ly to b e^ 
regarded as only presenting for adjudication the relative rights of the^ 
parties at the commion law to make use of the flowing waters of th£ 
stream, unaffected by any exceptional circumstances. 

And in considering the case it may be remarked at the outset that 
it differs essentially from a case in which a stream has been diverted 
from its natural course and turned away from a proprietor below. No 
person has a right to cause such a diversion, and it is wholly a v/rongful 
act, for which an action will lie without proof of special damage. It 
dift'ers, also, from the case of an interference by a stranger, who, by 
any means, or for any cause, diminishes the flow of the water; for 
this also is wholly wrongful, and no question of the reasonableness of 
his action in causing the diminution can possibly arise. And had the 
instructions which are excepted to been given with reference to a 
case of diversion, or of obstruction by a stranger, the broad terms 
in which the responsibility of the defendant was laid down to the 
jury might have found abundant justification in the authorities. 

But as betw^ee n Jwo propri etors, neither of whom has acquired 
superior rights to the other, it cannot be said that one "has no right to 
use the water to the prejudice of the proprietor below him," or that 
he cannot lawfully "diminish the quantity which would descend to the 
proprietor below," or that "he must so use the water as not materially 
to affect the application of the water below, or materially to diminish 
its quantity." Such a rule would be in effect this : That the lower pro- 
prietor must be allowed the enjoyment of his full common-law riglits 
as such, not diminished, restrained, or in any manner limited or quali- 
fied by the rights of the upper proprietor, and must receive the water 
in its natural state as if no proprietorship above him existed. Such 
a rule could not be the law so long as equality of right between the 
several proprietors was recognized, for it is manifest it would give 
to the lower proprietor superior advantages over the upper, and in 
many cases give him in effect a monopoly of the stream. 

Cases may unquestionably be found in which the rule of law is laid 
down as broadly as it was given by the circuit judge in this case, but 
an examination of them will show either that the facts were essen- 
tially different, or that the general language was qualified by the con- 
text. Thus the language employed in the first instruction as above 
given seems to have been quoted from Lord Tenterden in Mason v. 
Hill, 3 B. & Adol. 312. But there it had reference to a case of diver- 



Ch. 4) STREAMS 63 

sion of water, and was strictly accurate and appropriate. The same 
language substantially is made use of in Twiss v. Baldwin, 9 Conn. 
291 ; Wadsworth v. Tillotson, 15 Conn. Z7Z, 39 Am. Dec. 391 ; Arnold 
V. Foot, 12 Wend. (N. Y) 331 ; and probably in many other cases, and 
is adopted by Chancellor Kent in his Commentaries (volume 3, p. 439). 
See, also, Bealey v. Shaw, 6 East, 208; Agawam Canal Co. v. Ed- 
wards, 36 Conn. 497; Williams v. Alorland, 2 B. & C. 913; Mason 
V. Hill, 5 B. & Adol. 1 ; Tillotson v. Smith, 32 N. H. 95, 64 Am. Dec. 
355. But as between different proprietors on the same stream the 
right of each qualifies that of the other, and the question always is, 
not merely whether the lower proprietor suffers damage by the use of 
the water above him, nor whether the quantity flowing on is diminished 
by the use, but whether under all the circumstances of the case the 
use of the water by one is reasonable and consistent with a correspond- 
ent enjoyment of right by the other. * * * 

It is therefore not a diminution in the quantity of the water alone, 
or an alteration in its flow, or either or both of these circumstances 
combined with injury, that will give a right of action, if in view of all 
the circumstances, and having regard to equality of right in others, 
that which has been done and which causes the injury is not unrea- 
sonable. In other words, the injury that is incidental t o a re asonable 
enjoyment of the common right can demand no r.edre;ss. 

We think the court erred also in declining to instruct the jury on 
defendant's request that in determining the question of reasonable 
use by the defendant they might consider, among other things, the 
general usage of the country in similar cases. As was said in Gould 
v. Boston Duck Co., 13 Gray (Mass.) 452: "Usage is some proof of 
what is considered a reasonable and proper use of that which is a 
common right, because it affords evidence of the tacit consent of all 
parties interested to the .general convenience of such use." And see 
Thurber v. Martin, 2 Gray (Mass.) 394, 61 Am. Dec. 468 ; Snow v. 
Parsons, 28 Vt. 459, 67 Am. Dec. 723. Indeed in most cases this proof 
is the most satisfactory and conclusive that could be adduced, being 
established by the parties concerned, who understand better than any 
others what is reasonable and convenient, and who would not be likely 
to acquiesce in any thing which was not so. 

These errors render it necessary to order a new trial. Some of the 
rulings on the admission of evidence seem to have been very liberal, 
but we are not satisfied that they exceeded the bounds of judicial dis- 
cretion. 

The judgment will be reversed, with costs, and a new trial ordered. 

The other Justices concurred.^ 

6 A. was an upper, B., a lower, riparian. B. bad a water wheel mill. A. 
kept back the river by a daiu to accumulate suHlcient water to carry his logs 
down by flood, releasing the water at intervals. This detention of the wa- 
ter made it impossible for B. to use his mill. Hold, B. has a right of ac- 
tion against A. Woodin v. Weutworth. 57 Mich. 278, 2.3 X. W. Si;{ (ISSu). 

A., an upper riparian, raised his dam, and to get his poud tilled shut off 



64 EIGHTS INCIDENTAL TO POSSESSION (Part 1 



MENG V. COFFEY. 

(Supreme Court of Nebraska, 1903. 67 Neb. 500, 93 N. W. 713, 60 L. R. A. 
910, 108 Am. St. Rep. 697.) 

Pound, C' This suit was brought in 1893 to enjoin the defendants, 
upper riparian owners upon Hat creek and its several tributaries, from 
diverting the waters of said streams for irrigation purposes to such 
extent as to deprive the plaintiff, a lower owner, of the use of the 
stream. Upon trial a decision was announced orally adverse to the 
plaintiff. On appeal to this court it appeared that no final decree had 
been entered in accordance with such announcement, and the appeal 
failed. Thereafter a decree dismissing the cause and following the 
findings originally announced was duly entered, from which the pres- 
ent appeal is prosecuted. 

The defendants justify their diversions of the waters of said streams 
upon these grounds: (1) Prior appropriation; (2) that irrigation of 
meadow land to produce forage for their stock is a "domestic" use 

of the water, for which, if necessary, they may consume the whole. 

* * * 

The first two positions are clearly untenable if this court is to adhere 
to its repeated pronouncements that the rules of the common law as to 

the rights and duties of riparian owners are in force in this state. 

* * * 

A great deal of what has been urged upon us as demonstrating the 
inapplicability of the rules of the common law upon this head to con- 
ditions in Nebraska proceeds upon an erroneous impression of the na- 
ture and purpose of such rules. Thus, in a brief in which the subject 
is most elaborately and exhaustively discussed, counsel say: "No ri- 
parian proprietor in Nebraska to-day is entitled to the full flow of the 
stream through his premises just for the pleasure it may give him to 
see the stream filling its banks. * * * The use of the water belongs 
to the people." And throughout that brief, and in all the arguments we 
have examined, it is assumed that at common law any taking of wa- 
ter from a stream is an injury to the riparian proprietor, and that the 
latter may insist that no water whatever shall go out. The common 
law does not hold to so unreasonable a rule. On the contrary, it con- 
siders running water publici juris, and, while it will not permit any 
one man to monopolize all the water of a running stream when there 
are other riparian owners who need and may use it also, neither does 
it grant to any riparian owner an absolute right to insist that every 
drop of the water flow past his land exactly as it would in a state of na- 
ture. * * * 

the water entirely for two days In June and for four days in July. Diiring 
these days B., a lower riparian, was unable to operate his mill. Held. R. has 
no cause of action against A. Pitts v. Lancaster Mills, 13 Mete. (Mass.; 150 
(1847). 
7 Part of the opinion of the Commissioner is omitted. 



Cll. 4) ^ STREAMS 65 

When, therefore, counsel tell us that their clients have a natural 
right to irrigate, and that reasonable use of the water is necessary in 
exercise of that right, they urge nothing against the rules of the com- 
mon law, since the latter merely insist that others along the streams in 
question have the same natural right, and permit every reasonable use 
by each consistent with like use by all. The apparent modifications of 
the common-law rules in the semiarid or arid states in that courts of 
such states are more liberal in their construction of what is a reasona- 
ble use, are no departure from the principles on which the rules are 
founded. On the contrary, they carry them to their logical conclusion 
in view of the special conditions of such regions. * * * 

For the reasons indicated, we are of opinion that the former holdings 
of the court must be adhered to, and that, except as altered by statutes, 
the common-law rules are in force in every part of the state. The de- 
tails of such rules with respect to irrigation, however, and their ap- 
plication to irrigation in the semiarid portions of the state, have not, a', 
yet, received careful consideration by this court. It is generally rec- 
ognized that at common law a riparian owner may take water from a 
stream for purposes of irrigation. Embrey v. Owen, 6 Exch. 353; 
Elliot V. Fitchburg R. Co., 10 Cush. (Mass.) 191, 57 Am. Dec. 8.5; 
Gillett V. Johnson, 30 Conn. 180; Ulbricht v. Eufaula Water Co., 86 
Ala. 587, 6 South. 78, 4 L. R. A. 572. 11 Am. St. Rep. 72; Gould on 
Waters, § 617. At an early day there was a tendency to class irriga- 
tion among those uses of a stream which might be carried even to en- 
tire consumption of its waters. But another view has long prevailed, 
and is now well established, not only in the eastern portion of the coun- 
try, but even in the arid and semiarid states (so far as such states rec- 
ognize the common-law doctrine as to riparian rights), to tlie effect 
that irrigation is one of those uses which must be exercised reasonably 
with due regard to the rights of others. Low v. Schaffer, 24 Or. 239, 
33 Pac. 678; Gillett v. Johnson, 30 Conn. 180; Black's Pomeroy, Wa- 
ter Rights, § 151; Gould on Waters, §§ 205, 217. This subject has_ 
been confused needlessly by the unfortunate use of the words "natur- 
ar'^nd "ordinary" in this connection to distinguish those uses which 
the common law does not attempt to limit, and "artificial" or "extra- 
ordinary" to designate those which are required to be exercised within 
reasonabTe^boun^s. It is no doubt true that irrigation is a very natural 
and a very"6rdinary want, and that use of a stream for such purpose is 
natural and ordinaiy in semiarid regions. But such is not the question. 
The law does not regard the needs and desires of the person taking the 
water solely to the exclusion of all other riparian proprietors, but looks 
rather to the natural effect of his use of the water upon the stream 
and the equaF rights of others therein. The true distinction appears to 
lie between those modes of use which ordinarily involve the taking of 
small quantities, and but little interference with the stream, such as 
drinking and other household purposes, and those which necessarily in- 
BiG. Rights — 5 



66 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

volve the taking or diversion of large quantities and a considerable 
interference with its ordinary course and flow, such as manufacturing 
purposes. * * * 

It would doubtless be impolitic to give an arbitrary or hard and fast 
meaning to the word "reasonable" in this connection. The use of wa- 
ter for irrigation always involves some loss, and we do not think it 
would be wise to declare every perceptible diminution of the waters 
of a stream to be unreasonable. The necessity of a liberal view of 
what constitutes a reasonable use of water for irrigation has been ju- 
dicially recognized (Harris v. Harrison, 93 Cal. 676, 29 Pac. 325 ; Bath- 
gate V. Irvine, 126 Cal. 135, 58 Pac. 442, 17 Am. St. Rep. 158), and we 
think caution in that respect entirely proper. If the rights of the up- 
per owner in the water are no more than those of the lower owner, they 
^e at the same time no less. His right to reasonable use of the water 
for irrigation ought not to be rendered nugatory by requiring it to be 
exercised in an impossible manner. * * * 
^ The uses which an upper riparian owner may make of a stream for 

) purposes of irrigation must be judged, in determining whether they 

/ are reasonable, with reference to the size, situation, and character of 

( the stream, the uses to which its waters may be put by other riparian 

/ owners, the season of the year, and the nature of the region. These 

circumstances differ in different cases, and what use is reasonable must 
be largely a question of fact in each case. Lux v. Haggin, 69 Cal> 255, 
4 Pac. 919, 10 Pac. 674; Baker v. Brown, 55 Tex. Z77 ; Harris v. Har- 
rison, 93 Cal. 676, 29 Pac. 325 ; Minnesota Loan & Trust Co. v. St. 
Anthony Falls Water Power Co., 82 Minn. 505, 85 N. W. 520; Em- 
brey v. Owen, 6 Exch. 353 ; Pitts v. Lancaster Mills, 13 Mete. (Mass.) 
156. Some things, however, are clearly unreasonable, and it may be laid 
down absolutely that the upper owner, in using the Avater for irrigation, 
must not waste, needlessly diminish, or wholly consume it, to the injury 
of other owners, nor so as to prevent reasonable use of it by them also. 
Union Mill Co. v. Dangberg, 2 Sawy. 450, Fed. Cas. No. 14,370; Lux 
V. Haggin, 69 Cal. 255, 4 Pac. 919, 10 Pac. 674; Harris v. Harrison, 93 
Cal. 676, 29 Pac. 325; Gould v. Eaton, 117 Cal. 539, 49 Pac. 577, 38 
L. R. A. 181 ; Coftman v. Robbins, 8 Or. 279 ; Gillett v. Johnson, 30 
Conn. ISO. 

Judged in this way, we think the use made of the streams in ques- 
tion by three of the defendants may not be said to be reasonable. Hat 
creek is a small stream, about 10 feet wide where it passes the plain- 
tiflF's lands, formed by the junction of a number of similar streams a 
few miles above. Of these, Warbonnet creek, after gathering several 
small tributaries, flows into IMunroe creek, which is received by Sow- 
belly creek, and the latter soon joins Hat creek, into which, some dis- 
tance above, a number of smaller streams have been united. * * * 

The defendant Brewster maintains a dam on Warbonnet creek, and a 
ditch, by means of which he irrigates some 300 acres. The capacity 
of this ditch is sufficient to contain the entire stream. It takes the wa- 



Ch. 4) STREAMS 67 

ter away from the creek to a point about a mile off, where the dip is 
but very slightly toward the creek, and there discharges it, so that prac- 
tically all that is not used in irrigation will, in hot weather, evaporate, 
and not return to the creek. On one occasion, when the season was 
very dry in that vicinity, and a number of Mr. Brewster's neighbors 
below him were complaining because they could get no water, it ap- 
pears that he was turning the water upon a meadow of 80 to 100 acres, 
so that it stood there from one to one and one-half inches deep; and, 
as we have seen, what was not used was substantially wasted. This 
is obviously unreasonable. The defendant Wilcox maintains a ditch on 
Munroe creek, with which he irrigates 150 acres. This ditch also is 
sufficient to carry the whole stream, and the water is so discharged that 
none gets back into the creek, since the ground slopes in another di- 
rection at the point of discharge. With respect to the defendant Cof- 
i£^C, who maintains a ditch on Hat creek, with which he irrigates 160 
acres, the case is not so clear. But at the time the writs were served in 
this case, while there was an abundance of water in his ditch, the- sher- 
iff found the creek dry a mile and a half below, and the bed of the 
creek opposite the plaintiff was so dry that dust blew in it. * * * 

With respect to the defendant Steele, however, who is on Middle 
Hat creek, above Coffey, the evidence is that all of the water taken 
out by him, except what is consumed by evaporation, goes back to the, 
cree k, and there is no evidence of unreasonable use or of injury to 
the plaintiff. [The Commissioner found that until 1893 there was no 
undue user by any of the defendants.] 

Per Curiam. For the reasons set forth in the foregoing opinion, 
the decree of the district court is affirmed as to the defendant Steele, 
but_reyersed as to the defendants Coffey, Brewster, and Wilcox, with 
directions to make new and further findings of fact in conformity with 
said opinion, and to enter a decree enjoining the defendant Wilcox 
from wasting or unreasonably diminishing the waters of Munroe creek, 
and enjoining the defendants Brewster and Coffey from consuming 
all the waters of Warbonnet and Hat creeks, respectively, in the irri- 
gation of their lands, or permanently diverting in any year a greater 
proportion of the water in such streams for the time being than they 
were accustomed to take out prior to 1893, having regard to the nature 
of the season and the condition of the stream at the time; that pro- 
portion and other questions of fact necessary to the rendition of such 
decree to be ascertained from the evidence already taken, or by taking 
further evidence at the discretion of the district court* 

8 See Mud Creek Irrigation Agr. & Mfg. Co. v. Vivian, 74 Tex. 170, 11 S. 
W. 1078 (18S9). 



68 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

GARWOOD V. NEW YORK CENT. & H. R. R. CO. 
(Court of Appeals of New York, ISSl. 83 N. Y. 400, 3S Am. Rep. 452.) 

[The defendant at a point where its roadbed crossed a stream in- 
stalled pipes and drew away water for use in its locomotives. This 
diversion perceptibly reduced the water in the stream and materially 
diminished the grinding power of the plaintiff's mill lower down on 
the stream. He asked for damages and an injunction. He obtained 
both in the court below, and the defendant appealed.] 

Danforth, j.8 * * * gach [riparian proprietor] has a right to 
the ordinary use of water flowing past his land, that is, ad lavandum 
et ad potandum, for domestic purposes and his cattle, although some 
portion may be thereby exhausted ; and this is so, without regard to 
the effect which such use may have upon the lower owner. The water 
may also be used for irrigation or for manufacturing purposes. The 
cases cited by the appellant are abundant to show tliis, but in every 
one the irrigation is of the land to which the right to use the water 
is an incident, or with which the manufacturing purpose is connected, 
but even this privilege cannot be exercised if thereby the lawful use 
of the water by a lower proprietor is interfered with to his injury. 
Miner v. Gilmour, 12 Moore, 156; Tyler v. Wilkinson, 4 Mason, 397, 
Fed. Cas. No. 14,312. Now in the case before us the defendant has 
done something more ; it has not been content with exercising this 
privilege ; it has diverted a considerable portion of the stream not for 
any use upon the land past which it flows, but for the transaction 
of its business in other places and for purposes in no respect pertaining 
to the land itself. The pipes and reser^^oirs of the defendant are not 
laid or constructed for the mere purpose of detaining the water a 
short time, or applying it to machinery or other object upon the land 
itself, and afterward restoring it, but for facility in filling the defend- 
ant's locomotives, in order that they, with power generated from it, 
may pass as the interest of the defendant may require, to the east or 
wQst, returning no portion of it, even in the form of vapor, to the 
stream from which it was taken. So far as the plaintiff is concerned, 
it has cajried away from his premises the water as effectually as jf 
it had been turned into another channel and discharged at Albany or 
Buffalo; and from this, as the jury has found, he has sustained dam- 
age. Not only this, but it has been done under a claim of right by the 
defendant, which, if acquiesced in by the plaintiff, would in course 
of time ripen into a realty and destroy the incident of his property — 
the right of the plaintiff as riparian owner to have the water flow 
as it had theretofore been accustomed to flow. For in that case, al- 
though the defendant could not claim the right as riparian proprietor, 
it might claim it by prescription; and to prevent this result also, the 

» The statement of facts is rewritten and part of tlie opinion is omitted. 



Ch. 4) STREAMS 69 

plaintiff had a clear right to an injunction. The terms of the one grant- 
ed are sufficiently well guarded. The defendant is "restrained" only 
"from diverting the water to the injury of the plaintiff." 

But the learned counsel for the appellant contends that inasmuch 
as both plaintiff and defendant require the water for artificial as dis- 
tinguished from natural uses — the one as a power for mill purposes, 
the other as material or the means of producing power for railroad 
purposes, it may be abstracted by the defendant, even to the other's 
injury, although he concedes the rule would be different if the plaintiff 
required the water for natural purposes. It is difficult to see how such 
a distinction can be maintained. The plaintiff requires the current 
because its momentum supplies power. The defendant, as riparian 
owner, has no right to remove the water and so diminish it. If the 
defendant's use was for natural purposes there might be some reason 
for giving it priority; but this is not pretended. To justify a use be- 
yond that a grant or license would be necessary. The defendant ex- 
hibits neither, but in its answer asserts that its use has been adverse 
to the plaintiff for more than twenty years. The evidence does not 
sustain the claim. As to it therefore the case presents no exception 
to the rule, that a riparian proprietor has no right to divert any part /<3^^(^ 
o^the water of the stream into a course different from that in which 
it h as been accustomed to flow, for any purpose, to the prejudice of 
any other riparian owner. This is the doctrine both of the common 
^andTcivil law (3 Kent Com. 58-5), and it stands upon the familiar maxim, 
sic utere tuo ut non laedas alieno. In substance the defendant's claim 
is that it has a right to use all the water it pleases; but it does not 
show the origin or foundation of the right. As the case stands then 
the defendant has diverted the water without right and to the plain- 
tiff's injury; its use therefore could not be reasonable, and the in- 
quiry desired by the defendant, as to whether it was or not, would 
not be applicable. * * * 

Judgment appealed from affirmed, with costs.^* 



GILLIS V. CHASE et al. 

(Supreme Court of New Hampshire, 1S91. 67 N. H. 161, 31 Atl. 18, 6S 
Am. St. Rep. 645.) 

Case, for diverting water and diminishing the flow upon the plain- 
tiff's land. Facts found by the court. 

The plaintiff and one J. S. Winn are riparian owners, Winn's land 
being above the plaintiff's. About fifteen years ago Winn built a 
dam to hold back the water, thus forming a reservoir from which by 

loAcc: Even though the diversion might not have substantially damaged 
the plaintiff's mill. McCartney v. Londonderry, etc., Ry. Co.. [1904] A. C. 
301, overruling Earl of Sandwich v. Gt. Northern Ry. Co., U R 10 Ch. Div. 
707 (1S78). 



70 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

an aqueduct he supplied water to his far/n buildings. He also permit- 
ted the defendants, who are not riparian owners, to connect aqueducts 
with the reservoir and thereby supply their buildings with water, con- 
veying to them by deed a right to such use. The defendants all claim 
the right to take the water from the reservoir under J. S. Winn, the 
owner of the land where the reservoir is located, and the owner of 
a part of the meadow from which the water is collected. The use 
of the water made by the several defendants is reasonable as to the 
quantity used, and the sale of the water by Winn to them is a rea- 
sonable use of it. The water used does not return to the stream, but 
the amount is so small as to make no difference that would probably 
be perceptible in the stream flowing through the plaintiff's land. 

Blodgett, J. The case finds that "the defendants all claim the 
right to take the water from the reservoir under J. S. Winn, the owner 
of the land where the reservoir is located, and the owner of a part 
of the meadow from which the water is collected." 

In virtue of this ownership, Winn's right to divert the water for 
use to a reasonable extent was incident to the land ; and, as the plain- 
tiff has failed to show any actual damage, it is only for an unreasonable 
and unauthorized diversion that the law will imply damage to him, be- 
cause each riparian proprietor having the right to a just and reasona- 
ble use of tlie water as it passes through and along his land, it is 
only when he transcends his right by an unreasonable and unauthorized 
use of it that an action will lie against hirn by another proprietor whose 
common and equal right to the flow and enjoyment of the water is 
thereby injuriously affected. And as the reasonableness of the use 
is, to a considerable extent, a question of degree, and largely dependent 
on the circumstances of each case, it is to be judged of by the jury, 
and must be determined at the trial term as a mixed question of law 
and fact. Jones v. Aqueduct, 62 N. H. 488, 490; Rindge v. Sargent, 
64 N. H. 294, 295, 9 Atl. 723. This question having been found ad- 
versely to the plaintiff by the trial court, the finding is conclusive against 
hjm (Jones v. Aqueduct, supra), and consequently the only question 
now open to him is as to the right of Winn, in his character as a ri- 
parian proprietor, to sell the non-riparian defendants any of the wa- 
ter belonging to him as incident to his land. 
The English rule, is understood to be, that "A riparian owner can- 
not, except as against himself, confer on one who is not a riparian own- 
er any right to use the water of the stream, and any user by a non- 
riparian proprietor, even under a grant from a riparian owner, is 
wrongful." Ormerod v. Mill Co., L. R. 11 Q. B. 155 ; Swindon Water 
Works Co. V. Wilts & Berks Canal Nav. Co., L. R. 7 H. L. 697 ; Nut- 
tal V. Bracewell, L. R. 2 Ex. 1. But the rule is otherwise in this juris- 
diction, for it is held here to be a question of fact, whether the use 
"oTthe water made by a riparian owner for his own purposes, or for 
sale to others, is, under all the circumstances, a reasonable use. Jones 
v. Aqueduct and Rindge v. Sargent, supra. And in view of the finding 



'^ 






Ch. 4) STREAMS 71 

t hat t he sale of the water to the defendants by Whin is a reasonable 
use of his right as a riparian owner, the plaintiff has no standing on 
this~Branch of the case. 

Judgment for the defendants. 

Clark, J., did not sit; the others concurred.** 



JONES et al. v. CONN. 

(Supreme Court of Oregon, 1901. 39 Or. 30, 64 Pae. 855, 65 Pac. 1068, 54 L. 
R. A. 630, 87 Am. St. Rep. 634.) 

Bean, C. J.*' This is a controversy between riparian proprietors 
upon a natural water course. There is virtually but one q uestion in- 
volved in_thejcase^ and that is whether the lands which the defendant 
seeks to irrigate are riparian in character. It is practically conceded 
'tHaFup to "the commencement of the suit the plain tiffs had not been sub- 
jtantially injured or damaged on account of the use of the water by 
the_defendant, and, as a consequence, are not entitled to an injunction 
i^ the lands are riparian ; but the contention is that they are nonripa- 
rian7 and therefore the plaintiffs are entitled to an injunction restrain- 
ing the use of the water thereon without proof of damage. * * *- 

The plaintiffs admit the rule that, after the natural wants of all the 
riparian proprietors have been supplied, each is entitled to a reasonable 
use of the water for irrigating purposes, but insist that the exercise of 
the right must be limited to the tract of land through -vt'hich the stream 
flows as first segregated and sold by the government of the United 
States, and that, even in such a case, where there are natural barriers 
within the tract which would prevent a portion of the land from de- 
riving any benefit from the flow of the stream, the portion lying be- 
yond the barrier should be excluded. But, as we understand the law, 
lands bordering on a stream are riparian, without regard to their ex- 
tent. After a considerable search, we are unable to find any rule de- 
termining when part of an entire tract owned by one person ceases to 
be riparian. * * * 

It wou ld seem, that any person owning land which abuts upon or_ 
through which a natural stream of water flows is a riparian proprietor, 

11 Contra: Ormerod v. Todmorden Mill Co., L. R. 11 Q. B. D. 155 (1S83). 
See Elliot v, Fitcliburg R. R. Co., 10 Cush. (G4 Mass.) 191, 57 Am. Dec. 85 
(1852). 

In many of the semi-arid states of the West the common-law doctrines 
relating to rischts in Streams have been done away with in favor of the so- 
called appropriation doctrine, viz., that the use of the stream belongs to 
the persoiP^ho first appropriates it to his own use, to the extent that he so 
appropriates. See ^Yie\. Water llights in the Western States (3d Ed.) parts 
I, II, III: part IV, c. 40. 

12 The statement of facts and part of the opinion are omitted. 



72 ' RIGHTS INCIDEXTAL TO POSSESSION (Part 1 

entitled to the rights of such, without regard to the extent of his land, 
or from whom or when he acquired his title. The fact that he may 
have procured the particular tract washed by the stream at one time, 
and subsequently purchased land adjoining it, will not make him any 
the less a riparian proprietor, nor should it alone be a vahd objection 
to his using the water on the land last acquired. The only thing neces- 
sary to entitle him to the right of a riparian proprietor is to show that 
the body of land owned by him borders upon a stream. * * * 

The case of Boehmer v. Irrigation Dist., 117 Cal. 19, 48 Pac. 908, 
would seem to make the extent of riparian rights depend upon the 
source of title, rather than the fact of title ; but in Water Co. v. Han- 
cock, 85 Cal. 219, 24 Pac. 645, 20 Am. St. Rep. 217, it was expressly 
held that all land bordering upon a stream which is held by the same 
title — in that instance consisting of 1,280 acres— is riparian, and no dis- 
tinction was made on account of the source of title. Again, in Wig- 
gins V. Water Co., supra [113 Cal. 182, 45 Pac. 160, 32 L. R. A. 667], 
and Bathgate v. Irvine, 126 Cal. 135, 58 Pac. 442, 77 Am. St. Rep. 
158, the right of a riparian proprietor to use the waters of a stream 
for irrigation was limited to the water shed. But, as we understand 
these cases, the court in each instance was determining the rights of 
the parties then before it, and not attempting to lay down an inflexible 
rule as a guide in all cases. Nothing more was held or decided than 
that under the claim alone of riparian rights the owner of land cannot, 
to the injury of another riparian proprietor, take the water beyond the 
water shed, or onto lands held by a title different from the title of 
those through which the stream flows ; and this all will concede. The 
right to make a reasonable use of the water of a stream is a rigliFol 
property, depending on the ownership of the land abutting on or 
through which the stream flows ; and whether a given use is reasona- 
ble or not is a question of^fact, to be determined under the circum- 
stances of eachjparticular..case. The right to use the water belongs to 
the owner of the land, and the extent of its exercise is not to be de- 
termined by the area or contour of his land, but by its eft'ect upon other 
riparian proprietors. * * * 

It is suggested that the court ought to ascertain and determine the 
rights of the respective parties, and fix them in the decree, so that here- 
after there may be no controversy concerning the matter. In the very 
nature of things, however, it is impossible in a case of this character 
to make such a decree. The^rjghts of the several riparian propiietQrs_ 
are equal, each being^^ntitled to but a reasonable use oJ_.the w ater for 
^igating purposes, and what constitutes such use must necessarily de- 
pend upon the season^ the volume of water in the stream, the area and 
character of the land which each riparian proprietor proposes to irri- 
gate, and many other circumstances ; so that it seems to us there is 
no basis upon which the court could frame any other decree than one 
enjoining and restraining the defendant from diverting the water from 



Ch. 4) STREAMS 73 

the stream to the Sjjbstantial injury of the present or future rights of 
the plaintiffs, and, as the decree of the court below is to that effect, it 
will be affirmed.^' 



Appeal of MESSINGER. 
(Supreme Court of Pennsylvania, 1S85. 109 Pa. 285, 4 Atl. 162.) 

[Bill for an injunction to restrain defendants from using the water 
of a stream. Bill was dismissed, and plaintiff appeals.] 

Mercur, C. J.^* This is an attempt to enjoin the appellees against 
the use of the water of a small stream which flows through their land. 
It unites with another stream of about the same size in forming the 
larger one, on which the appellants own lands and mills, some six miles 
below the junction of the two smaller streams. The complaint is that 
the appellees so use the water of the stream on their lands as to greatly 
lessen the flow thereof during a portion of the year to the mills of the 
appellants, to their injury. That such is now the effect of the appellees' 
use of the water in a dry season, when the streams are low, is undoubt- 
edly correct. * * * 

What, then, are the controlling facts found by the master ? They are 
that about 40 years before this bill was filed the predecessors in title 
of the appellees built a low dam across the stream, and cut a sluice or 
ditch therefrom by which the water was led into their meadows adjoin- 
ing. A gate was put at the entrance of the ditch by which the quan- 
tity allowed to flow could be checked or shut off when desired. This 
use of the water, under a claim of right, had continued for about 40 
years, whenever the owners of the meadows thought they needed wa- 
tering. It did not flow constantly over the meadows, as there were 
times when for several months they did not need the water ; yet, .dur- 
ing that portion of each and every year when the growth of the grass 
would be promoted by irrigation, the water was so used. Such use of 
the water was continuous and uninterrupted except when they did not 
want it and closed the gates. He further found that the dam is no 
higher, the ditches no larger, nor the quantity of water diverted any 
greater, than when the dam was originally constructed. On the con- 
trary, that three acres less of meadow land are now irrigated than while 
it was in possession of the former owners ; that a number of ditches 
through which the water formerly flowed for irrigating purposes are 
now abandoned and closed ; that the water now taken from the creek 
is less than was formerly taken, but it has not decreased proportionate- 
ly with the diminution of water in the creek. 

At the time the water was first diverted from the stream, and for 
many years thereafter, it does not appear to have" caused any injury to 

13 In addition to cases cited in text, see Crawford Co. v. Hathaway, 07 
Neb. 325, 353, 93 N. W. 7S1, 60 L. R. A. 889, 108 Am. St. Rep. 647 (1903). 
1* The statement of facts and part of the opinion are omitted. 



:^A 



74 , RIGHTS INCIDENTAL TO POSSESSION (Part 1 

the property now owned by the complainants. The injury results from 
the gradual diminution of the volume of water flowing in the stream, 
which has been the case for several years.^° While the dam which di- 
verts the water remains no higher, and the ditches which led the wa- 
ter from the stream and returned it thereto are unchanged, and the ap- 
pellees use less water than formerly, yet the appellants claim, in conse- 
quence of the diminished flow of water in the stream, the effect of the 
diversion, at first harmless, has now become injurious, and therefore 
the use of the water should Be enjoined against. In support of this 
view, the general rule, as declared in Washb. Easem. § 49, is invoked, 
that the time 'from which the period is to be reckoned in co mputing 
the duration of a continuous enjoyment is when the injury or inva^ 
sion of right begins, and not the time when the party causing it began 
that which finally creates the injury. 

The correctness of this rule may be conceded, yet it is not_applicable, 
to the facts of the present case. If the injury here was caused by a 
change of the dam or of the ditches ; or by suffering the latter to be- 
come filled up or clogged, (Polly v. IMcCall, 37 Ala. 20;) or by apply- 
ing the water to a different use; or if injury was caused by any late 
act, either of omission or of commission, on the part of the appellees, — 
it might be said they had previously only begun the work which caus- 
ed the injury ; but such is not this case. Here the whole action and 
work of the appellees is a continuance only of that which was done on 
the ground 40 years ago, and the water continues to be used for the 
same purpose now as then. * * * 

The work on the ground was not only under a claim of right', but it 
was open, visible, and notorious. The parties who owned the property 
below could foresee and anticipate the ultimate effect of the diversion 
of the water, as well as the parties who caused it. The fact that they 
may not have foreseen the probable diminution of the quantity of wa- 
ter which would flow in the stream cannot deprive the appellees of 
any of their rights arising from their possession and enjoyment of the 
water for nearly twice the number of years necessary to give a right 
thereto by prescription. 

Judgment affirmed.^* 

15 The stream had shrunk to one-half its former size and it was alleged 
that in dry seasons the defendants took practically all the water. 

10 "The plaintiff settled upon his laud in 1886, five years after Coffey be- 
gan his ditch, and from that time until 1S93 there is abundant evidence that 
lie had water in the creek at all times except for a day or two in 1890. No 
right to divert and dissipate the whole stream was acquired by making such 
use thereof as would still leave water for the plaintiff'. So long as the water 
was suHicicnt for all, there was no adverse user. * • * one of the ele- 
ments to be considered in determining what is a reasonable use of the water 
of a stream is the season of the year, and its eft'ect upon the stream. Ripar- 
ian owners are not to be debarred from use of water because the season is 
dry and the stream low. But at such time they must take care 'to do no 
material injury to the common right, having regard to the then stage of the 
river.' * * * The testimony is that the season of 1893 was unusually dry. 
Hence what might have been a reasonable use of the water, or at least such 



Ch. 4> STREAMS 75 



NEW YORK RUBBER CO. v. ROTHERY et al. 

(Court of Appeals of New York, 1892. 132 N. Y. 293, 30 N. E. 841, 28 Am. 

St. Rep. 575.) 

[The appellant was a lower, the respondents, upper, riparian pro- 
prietors. The respondents had a valuable mill upon their land and 
erected a dam to get water power for the mill, by which means the 
normal flow of the river was diverted, and not returned to the chan- 
nel unti l it rea ched a point below the, apjpellant's land. The appellant's 
land was not used for manufacturing purposes. The appellant brought 
an action at law for the diversion of the water. Judgment below for 
the defendants.] 

IvANDON, J.^'' * * * The court charged the jury that if the 
defendants used and diverted the water to a degree that materially and 
appreciably lessened its flow along the lots of the plaintiff the plain-' 
tiff was entitled to recover nominal damages. But the court also charg- 
ed : "These defendants have the right to use this water to run their 
wheel, provided they do not interfere with the stream to an extent which 
you can say is both appreciable and material. That question will, of 
course, be determined with reference to the land as it was, and not 
with reference to the future, for an instant. Be sure as to that. Do 
not change the question from just what it is: Have the Rotherys, by 
this water course, diverted the water so as to leave the stream, to a 
material and appreciable extent, insufficient for the purposes of plain- 
tiffs_business ? Now, gentlemen, that is all there is of the case." The 
plaintiff excepted to this portion of the charge, and requested the court 
to charge "that the plaintiff's right to maintain this action, and to re- 
cover a verdict for nominal damages, does not depend at all upon the 
plaintiff's showing any actual or any perceptible damage, but solely 
upon the question whether the defendants have, by the use of their 

use as gave tlie plaintiff no ground of complaint, in other years, became high- -^ ■ '^ 
ly unreasonable when it had the effeict of giving Coffey and Brewster all the '^^2^1^ 
water, and leaving none for other owners. Only a continuous and adverse. '^ 

user of the whole_stream could give a right to tal:e oiat a greater proportioii 

of such Tvafer as was in the stream at the time than they had habitually 
tak^In fornipi' years." Meng v. CofTey, 67 Neb. 500, 520, 93 N. W. 713, 720." 
SUT::Tr. a. OlO, lOS Am. St. Rep. 697 (1903). For the facts of tliis case 
see ante, p. 64. 

X., an upper riparian, built a dam and excavated for a reservoir. .In so 
doing he opened two or three springs on his own land and tapped a large- 
spring ou adjoining land, the waters of which he piped to his reservoir., in 
an action by a lower riparian for interference with the flowage of the 
stream, A. contended that as a consequence of these new sources and the 
further facts of the leakage and overflow from the dam and the occasion:! t 
raising by him of the sluice gate, as much water ran down to the plaintitT's 
land as formerly. Held, if the defendant had interfered with the natural 
water flow , these faefs constituted no defense- Ware v. Allen, 140 Mass. 
5lS, 5 jS/. E. 6f9"TlSSB)'. Compare ""Ell lot v. Fitchburg R. R. Co., 10 Cusn: 
(64 Mass.) 191, 57 Am. Dec. 85 (18.52). 
17 The statement of facts Is rewritten and part of the opinion is omitted." 






76 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

race, at any season of the year, diverted water from Matteawan cfreek, 
and thereby have reduced, perceptibly and materially, the volume or 
current of water which otlierwise would have flowed by the plaintiff's 
premises." This was refused. 

Both the charge and refusal were erroneous. The plaintiff's right to 
recover nominal damages was substantial, though the quantity of dam- 
ages was not. The defendants probably did leave water enough in 
the stream for the purposes of the plaintiff's business, as that business 
had been conducted. But the plaintiff's title to its water rights, and its 
7^-V ^ right to redress for their invasion, were not conditional upon tlie bene- 
^ ficial user of them. * * * fj^g plaintiff may, however, lose itstP 

tie by the defendants' prolonged adverse user of the water of the 
stream, and this is the more probable if such adverse user is protected 
by the verdict of the jury. It is not improbable that this action was 
brought to prevent the defendants from acquiring a prescriptive right 
to divert the water. The charge, which makes "the purposes of the 
plaintiff's business" material to its right to recover, and cautions the 
jury to regard plaintiff's land "as it was, and not with reference to 
^^,^X^ the future," tended to lead the jury to disregard the inviolable charac- 

^ ter of the plaintiff's property rights, or at least expose them to sacrifice, 

^ . r ^x^d.'d't-^i if plaintiff's actual and immediate pecuniary damages were inapprecia- 
/ ^ ble. The plaintiff might thus lose its right to the beneficial use of the 
water as it was accustomed to flow before defendants began to divert 
it simply because it had not as yet found it convenient to use it. In 
such a case, nominal damages given confirm the plaintiff's right, but 
withheld, impeach and may destroy it. * * * 

The judgment should be reversed, new trial granted, costs to abide 
event. All concur, except FollETT, C. J., not voting.^^ 

18 The plaintiff was a riparian proprietor owning a water mill upon a small 
stream. The defendants acquired land on the lake whence the stream flowed, 
and installed a dam for the purpose of obtaining a water supply for certain 
villages, thereby changing the natural flow of the stream. The dam was 
so arranged, however, that the amount of water for the plaintiff's mill was 
ontirely sufficient and flowed with a more regular volume than it had before 
the installation of the dam. Held, the plaintiff was entitled to an injunc- 
tion jpreventing the defendant from changing the natural flow of Uie. strearcu 
Robefts'v. Gwyrfai District Comicil, [18D9] 1 Ch. 583. 

A. was an upper, B. a lower, riparian proprietor. A. put in a dam that 
diverted the bulk of the river from B.'s side of the stream to the other. B. 
alleged that the effect of this change was to destroy a water power of his 
land and asked an injunction to compel the restoration of the natural flow of 
the river. The court found that in fact B.'s land had no water power pos- 
.sibilities. Held, B. is not entitled to an injunction. Minnesota Loan & 
Trust Co. V. St. Anthony Falls Water-Power Co., 82 Minn. 505, 85 N. W. 520 
(1901). See Modoc Land & Live Stock Co. v. Booth, 102 Cal. 151, 36 Pac. 
431 (1894). 

A. erected a dam across a stream through his land, and used it to detain 
the water in the pond which formed the source of the stream, during the 
autumn and spring when his factory, which was situated on other laud that 
he owned lower down the stream and situated below that of B., was ade- 
quately supplied with water from another source. When that failed, the 
deficiency was made up from the reservoir thus created. B. opened tl\e 



Ch. 4) STREAMS 77 

FILBERT V. DECHERT. 

(Superior Court of Pennsylvania, 1903. 22 Pa. Super. Ct. 362.) 

Porter, J.^® The plaintiff is the_owner in^ee of a tract of land 
through which flows Furnace creek, an unnavigable stream, upon which 
is erected a gristmiU^ and sawmill operated b;j^the water power. The 
corporation defendant is an agent of the state to which has been commit- 
ted the possession and management of the property used as an asylum 
for the chronic jnsaiie^L the title to the property being in the common- 
wealth. Act of June 22, 1891, P. L. 379. The land of which the defend- 
ant, as the representative of the commonwealth, is in lawful possession 
consists of a tract containing 540 acres, through which for a distance 
of about a mile flows Asylum creek, a stream which falls into Furnace 
creek, at a point above the land of the plaintiff. The state has erected 
upon its land extensive buildings, suitable as a place of residence for 
the insane, and has for a number of years there maintained the unfor- 
tunate of this class to the number of 800, the nurses and officers nec- 
essarily employed about the buildings increasing the total population 
living upon the land to about 900. Asylum creek enters the property 
of the defendant at a point nearly 100 feet higher than the asylum 
buildings, and the water used about the buildings has been conveyed 
from the creek through a six inch pipe. The plaintiff brought this ac- 
tion alleging a deprivation of her right to the use of the water of said 
stream] The^only injury to the property of the plaintiff suggested by 
theevidence was the diminution of the water power. 

The riparian rights of the commonwealth are the same which would 
have been incidental to ownership by a private individual : Union Mill, 
etc., Co. V. Ferris, 2 Sawy. 176, Fed. Cas. No. 14,371. * * * The 
learned judge of the court below charged the jury that the use of the 
water made by the defendant was not a proper ui£ of the stream by a 
riparian owner; and that "if the amount of water taken from the 
channel of this stream sensibly or materially diminished the flow, then 
the defendant has subjected itself to an action for an excessive use or 
diversion of the water." "No matter what the necessities of the asylum 
may have been, no matter how useful the institution may be, how 
praiseworthy it may be, it had no right to convey the water out of its 
course to the prejudice of the plaintiff's right." This language has the 
merit of being free from ambiguity. The learned judge of the court 
below determined as matter of law that the defendant had no right to 
furnish to the inmates of the buildings upon the riparian land water 
for drinking, culinary and cleansing or any other purpose usually con- 
sidered necessary to the preservation of life and health. 

gates and let off the accumulated water. Held, A. could not get an Injunc- 
tion against B., although there was no showing that the retention of the 
water damaged B. Clinton v. Myers, 46 N. Y. 511, 7 Am. Rep. 373 (1871). 
19 The statement of facts and part of the opinion are omitted. 



78 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

This conclusion seems to have been reached because of the frequent 
recurrence of the term "ordinary domestic purposes" in the authori- 
ties deahng with the rights of riparian owners. The learned judge, in 
his opinion refusing a new trial, says : "The principal question is 
whether the use of the water by the defendant is domestic in its na- 
ture." He then refers to the definitions of the word "domestic" found 
in several dictionaries, and thus states the result: "The central idea 
of both these definitions seems to be a family, home interest, something 
for the benefit of the family and home." Having thus reasoned out 
that there must be a home and a family upon the land before riparian 
rights become incidental to it, the learned judge proceeds to investigate 
the character of the residence of the insane patients upon the property 
of the state. Having satisfied himself that this pubHc institution "is 
an asylum, not a home ; a house of detention ; a place of treatment for 
the chronic insane, a hospital," the process of excluding these dwellers 
upon the margin of the stream from all riparian rights is complete. 
Even if the spirit of a legal principle and the relations out of which it 
arises are to be disregarded, the meaning of the word "domestic" can- 
not be arbitrarily assumed to be always thus narrow. One of the de- 
clared purposes of ordaining the constitution of the United States was 
to "insure domestic tranquility." As here used the term can hardly 
be said to imply an intention to preserve the peace of private families : 
it refers rather to the regulation of internal public affairs, not foreign 
interests. The term ordinarily means pertaining- to one's place of resi- 
dence, or to the affairs which concern it, or used in the conduct of such 
affairs. The authorities do not leave us without a definition of the 
term. In Philadelphia v. Gilmartin, supra [71 Pa. 140], Mr. Justice 
Agnew said, in referring to the use of water for manufacturing pur- 
poses : "These uses are not domestic, that is, such as are for the pres- 
ervation of the life and health of the population and their creatures." 
Chief Justice Paxson said, in Haupt's Appeal, supra [125 Pa. 211, 17 
Atl. 436, 3 L. R. A. 536] : "If there was a tenant thereon he could 
use it for watering his stock and for household purposes, for any use- 
ful, necessary and proper purpose incident to the land itself and es- 
sential to its enjoyment." * * * 

The word as used in the authorities cited by the learned judge of 
the court below refers to the purposes for which the inhabitants may 
use the water, and not to the social status of the individuals occupying 
the buildings which may be upon the land. The right is a natural one, 
recognized as growing out of the natural wants of man ; it is inherent 
in the ownership of the land, and is to be enjoyed by all who lawfully 
dwell upon the premises to the ownership of which it is an incident, 
without regard to the duration or purpose of such residence. All 
those who lawfully occupy the- riparian lands have a right to the ordi- 
nary use of the water for the purpose of supplying their natural wants, 
including drinking, washing, cooking, and about their habitations for 
such things as are necessary to the preservation of life and health. 



Ch. 4) STREAMS 79 

This natural right is not dependent upon whether the dwellers by the 
stream occupy homes or hospitals, are sheltered by tents or live in the 
open. The state might lawfully ordain that the National Guard should 
encamp upon this tract of land and take water for their use while 
there, from this stream. The ordinary use of the water, for the pur- 
pose of supplying the natural wants of those who inhabit the riparian 
lands, may involve an exhaustion of the stream without incurring lia- 
bility to lower riparian proprietors : Attorney General v. Gt. Eastern 
Ry. Co., 23 L. T. N. S. 344. When the use is extraordinary, for the 
supply of artificial wants, such as manufactures, those whose supply 
of water is thereby sensibly diminished, have a right of action : Gould 
on Waters (3d Ed^ § 205 ; Black's Pomeroy on Water Rights, §§ 138, 
140, and cases there cited. 

This agent of the state, the defendant, had an unquestionable right 
to take from the stream so much water as was reasonably necessary 
to supply the natural wants of those living upon this tract of land. 
The evidence does not indicate any necessity for the use of the water to 
operate a fountain. The defendant was not warranted in taking water 
for the manufacture of ice to be sold away from the premises. The 
first and second specifications of error are sustained. * * * 

The judginent is reversed and a venire facias de novo awarded.-" 

CITY OF CANTONv. SCHOCK. 

(Supreme Court of Ohio. 1902. 66 Ohio St. 19. 63 N. E. 600, 58 L. R. A. 
637, 90 Am. St. Rep. 557.) 

The city of Canton is a municipal corporation, and is situated be- 
tween the east and west forks of Nimishiller creek ; the forks meet- 
ing at or near the south line of the city, and thus forming that creek. 
The entire natural drainage of the city is toward and -into these two 
forks of the creek, which is a natural water course. The city has es- 
tablished its system of waterworks on the west branch of the creek, on 
a lot of land adjoining said branch ; and it takes its water supply from 
said creek, and from certain wells near the same, and from INIyers' 
Lake, near by. The city uses so m.uch of the water supply thus pass- 
ing through its waterworks as it needs for its use as a city, and supplies 
its inhabitants with water for domestic, commercial, and manufactur- 
ing purposes, at a price fixed by the city, so as to produce an income 
about sufficient to pay the expenses of said waterworks. The defend- 
ants in error own a water-power gristmill, located on the creek, a short 
distance downstream, south of the city, and have used the water of the 
creek for many years — over 50 — as power to run their mill, and until 
about the year 1887 there was sufficient water to supply both tlie city 

2 See Wadsworth v. Tillotson, 15 Conn. 366, 39 Am. Dec. 391 (1843) ; 
Evans v. Merriweather, 3 Scam. (4 111.) 492, 38 Am. Dec. 106 (1842^. 



80 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

and the mill ; but as the city grew, and extended its waterworks, it 
used larger quantities of water, and thereby the supply to the mill be- 
eame reduced to such an extent that in dry seasons of the year there 
was not sufficient water to run the mill all the time, and it became nec- 
essary to shut down at nights. Thereupon, in the year 1898, the de- 
fendants in error (plaintiffs below) commenced an action against the 
city in the court of common pleas, seeking to recover damages from 
the city for thus using the water, and thereby diminishing the supply 
to the mill. 

The city saved exceptions to part of the charge, and to the charge 
as a whole. A verdict was returned in favor of plaintiffs below, mo- 
tion for new trial overruled, judgment entered on the verdict against 
the city, and a bill of exceptions allowed, signed, and made part of the 
record. The circuit court affirmed the judgment, and thereupon the 
city filed its petition in error here, seeking to reverse the judgments 
below. 

BuRKET, J.^^ As this is an action against the city for damages, no 
question as to eminent domain, or appropriation of private property for 
public uses, is involved in the issue; the controlling issue being as to 
whether the city, as a municipal corporation, is a riparian proprietor 
having the right to use the waters of the creek for its own purposes, and 
to supply them to its inhabitants for the ordinary purposes of life, and 
as to whether the right to use water from a stream by one riparian 
proprietor for manufacturing purposes, such as running a gristmill, is 
inferior or equal to the right to use the water from the same stream 
by an upper proprietor for domestic purposes. 

It is urged by counsel for defendants in error that a municipality 
situated on a natural water course is not, in its corporate capacity, a 
riparian proprietor, and that only those inhabitants whose lots or lands 
border on the stream are such proprietors ; and some cases are cited 
which seem to. take that view of the law. * * * 

It was held by this court at this term in City of Mansfield v. Balliett, 
65 Ohio St. 451, 63 N. E. 86, 58 L. R. A. 628, that a city situate on a 
stream is' liable in its corporate capacity to a lower proprietor for pol- 
luting the water of such stream by running the sewage of such city and 
its inhabitants into such stream. This case holds the city, in its corpo- 
rate capacity, and as an upper proprietor, liable to a lower proprietor 
for polluting the water of the stream; and if the city is liable not only 
for its own acts, but also for the acts of its inhabitants, in flowing sew- 
age into the stream, it must be upon the principle that, as upper ripariafi 
* proprietor, it has violated its duty toward a lower riparian proprietor 
on the same stream, and that therefore the city, in its corporate ca- 
pacity, is a riparian proprietor on the stream, and must bear the bur- 
dens of such position. While the inhabitants own their lots individual- 
ly, tlie city owns the streets, the fire department, and all other public 

21 Tart of the opinion is omitted. 



Ch. 4) STREAMS 81 

property and public works, and, in its corporate capacity, provides for 
the convenience and welfare of its inhabitants as to streets, fire pro- 
tection, lighting, and supplying water ; and in such and other like mat- 
ters the city overshadows the individuals, and stands in its corporate 
capacity as a single proprietor extending throughout its entire limits, 
and entitled, as such, to all the rights, and subject to all the liabilities, 
of a riparian proprietor on the stream upon which it is situated. Sound 
reason, the weight of authority, and the present advanced state of mu- 
nicipal government, rights, and liabilities, require that a municipality 
should be held and regarded, in its entirety, as an individual entity, hav- 
ing in its corporate capacity the rights, and subject to the liabilities, 
of a riparian proprietor; and we so hold in this case. 

The bringing of the action against the city for damages is of itself ^. ,. 
an implied admission that the city, in its corporate capacity, is an up- -'*^^-^ ' 
per proprietor, liable for the wrongful diversion or use of the water . •y;.^ 

of the stream upon which it is situated. Being charged with the liabil- \Ja 

ity of such upper proprietor, as conceded by bringing the action, and -f^-^^-^y"^^"^ 
as was rightly held in the City of Mansfield Case, it must a lso be ac- 
corded the rights and benefits of such proprietor. 

As such proprietor, the city uses the water of the stream, through its 
waterworks, in extinguishing fires, sprinkling streets, and other public 
purposes, and supplies water to its inhabitants for dome stic use and 
manufacturing purposes. * * * 

As the right of the city to supply water to manufactories within its ' 

bounds for power purposes is only equal to the right of a lower pro- 
prietor to use water for the same purpose, the question arises in this 
case as to the rights of the parties to use the water of the stream for 
such purposes. * * * Where there is not sufficient water in a stream 
to supply fully the needs of all the proprietors on the stream for power 
purposes, no one has the right to use all the water, and thereby deprive 
those below him from the use of any ; nor can those below rightly in- 
sist that those above shall use no water for power, and thereby save it 
all for those below. . Each ^ should use the water reasonably, and so as 
to do as little injury to the others as circumstances will permit. As a 
loss must fall upon one or the other of such proprietors, neither should 
be compelled to bear the whole loss, but the water should be so divided 
and used that each one may bear his reaso nable propor tion o f the 
loss. * * * ' ■ 

This being so, the city of Canton, in supplying water to its inhabit- 
ants for power purposes, had the right to use the water of the stream 
^ a re asonable extent only, and so as to do as little injury as might be, 
under all the circumstances, to the lower proprietor ; each party bear- 
ing an equitable share of the loss caused by the shortage of water. Dry 
seasons are not caused by either party, but are the act of God, and each 
party must bear the losses resulting to him therefrom. * * * 

All water powers on a stream are established subject to the superior 
BiG.RionTs — 6 



1t' 



82 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

right of all upper proprietors to use water out of the stream for domes- 
ti^purposes, and, if the upper proprietors have grown so large or be^ 
come so numerous as to consume most or all of the water, the lower 
proprietors have no cause of complaint, because it is only what they 
should have reasonably expected in the growth and development of the 
country, and subject to which contingency they established their water 
powers. 

In addition to taking water from the stream for its own uses, and 
supplying the same to its inhabitants for domestic and manufacturing 
purposes, the amended petition avers that the city supplied water to' its 
inhabitants for commercial purposes. If this means only that the city 
received pay for the water so supplied, and thereby made the water an 
article of commerce, the averment is of no force. The city having the 
right to supply water to its inhabitants for domestic and manufacturing 
purposes, it can make no difference in that right that the supply is for 
pay, rather than for nothing. The injury, if any, to the lower proprie- 
tor, arises from the taking of the water, and not from the pay received 
therefor. 

It is also averred in the amended petition that the city supplies wa- 
ter to people outside of the city for domestic, commercial, and man- 
ufacturing purposes. If such supply to outsiders, or to be transported 
away from the city for commercial purposes, is sufficient in quantity 
to materially injure defendants in error, taking into consideration the 
size of the stream and water supply, the city, to that extent, is exceed- 
ing its right as a riparian proprietor. * * * 

The city having no right to materially diminish the flow of the water 
in the stream to the injury of defendants in error by supplying water 
to outsiders, or for commercial purposes to be transported to other 
parts, or to supply to its inhabitants for power purposes an unreasona- 
ble quantity, as above pointed out, it follows that if the city has ma- 
terially diminished the flow of the water in the stream by so supplying 
water to outsiders or for transportation, or unreasonably for purposes 
of power, it is liable to respond in damages to the party injured there- 
by; but for the water consumed by the city for its own purposes, or 
so supplied to its inhabitants for domestic use, even though it received 
pay therefor, it is not liable. 

The water taken by the city from the stream for its own use, and 
so supplied to its inhabitants, is_taken by virtue of its rights as a ripari- 
an proprietor^ and not by virtue of the right of eminent domain, and 
therefore no compensation need be made therefor. * * * 

The circuit court erred in affirming the judgment of the common 
pleas. Both judgments will be reversed, and the cause remanded for 
further proceedings. 

Judgments reversed.^^ 

2 2 Compare Barre Water Co. v. Carnes, 65 Vt. G26, 27 Atl. 609, 21 U K. A. 
769, 36 Am. St. Kep. 891 (1893). 
-y An incorporated city purcliased a piece of land on a river and sunk a 



Ch. 4) STREAMS 83 



HAYES V. WALDRON. 
(Supreme Court of New Hampshire, 1863. 44 N, H. 580, 84 Am. Dec. 105.) 

Case by Simon F. Hayes against Jeremiah W. Waldron, for dis- 
charging saw-dust and shavings from the defendant's mill into the 
Cochecho dver, which ran through the plaintiff's meadows below the 
mill, and was accustomed to overflow them in times of high water, 
whereby the saw-dust and shavings, in times of high water, were car- 
ried and deposited on these meadows. The defendant's saw-mill, situ- 
ate on his land on the river, was a belt mill, driven by water, and prior 
to 1847 the saw-dust had been carried by a belt and box into the wheel 
pit, whence it passed off through the tail race into the river. About 1857 
the belt and box were changed so as to carry the saw-dust directly into 
the river opposite and back of the mill, which is some twenty feet from 
the river. At tlie river bank there is a bank wall some six feet high 
from the water, and the belt and box are some twelve or fifteen feet 
above the water, and extend just beyond the wall, so as to drop the 
saw-dust into the bed of the river. About 1852 the defendant put in 
a planing machine, and the shavings from it were carried away and 
bufnt till July 4, 1858, when the defendant put in a belt and box simi- 
lar to the other, and discharged the shavings into the river some twelve 
or fifteen feet below where the saw-dust was discharged. If there had 
been no belts and boxes to carry off tlie saw-dust and shavings, they 
would have fallen into a room under the mill, and not into the water. 
In the winter the saw-dust and shavings accumulated where they fell 
into the river, and were from time to time shoveled into the river di- 
rectly, or through holes cut in the ice, 'if frozen. The testimony was 
somewhat conflicting as to the extent of the accumulations and the 
frequency of the removals. As bearing on the question whether such 
discharge of saw-dust and shavings into the river was a reasonable use 
of the stream by the defendant, he oft'ered to show a uniform, long 
continued, uninterrupted and undisputed usage for water saw-mills, 
planing machines and shingle and clapboard machines to discharge their 

large well within 100 feet of the stream in sandy soil. It does not clearly 
appear whether this land was within the city limits. This well drew its 
water from the river in such quantities as to interfere seriously with the 
mill of a lower riparian. The water was used by the city for municipal 
purposes and for supplying its inhabitants for domestic and manufacturing 
purposes. Held, the lower riparian may enjoin the withdrawal of the wa- 
ter. The court. Brewer, J., said: "A city cannot^ be considered a riparian 
proprietor within the scope of the exf'opfion"ha'mod las 'fo' user'for domestic 
purposesj." '"* * * The city, as a corporation, may own land on the banks, 
and TSus~in one sense, be a riparian owner. But this does not nialie each 
citizen a riparian owner. And the corporation is not taking the water for 
its own domestic purposes; it is not an individual ; it has no natural wants; 
it is not taking for its o\^ti use but to supply a multitude of individuals; it 
takes to sell." Citv of Emporia v. Soden, 25 Kan. 588, 606, 67 Am. Kep. '-'65 
(1881). 

See Swinden W. W. Co. v. Wilts, etc.. Canal Co., L. R. 7 English & Irish 
Appeals, GOT (1S73) ; Stein v. Burden, 24 Ala. i:jO, CO Am. iJec. 453 (1S54). 



84 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

saw-dust, chips and shavings into the stream; to which the plaintiff 
objected, but the court overruled the objection. 

Then a considerable number of witnesses, acquainted with saw-mills, 
some with many, others with few, in that vicinity, and also in other 
parts of the State, testified that in all the water saw-mills they ever 
knew the saw-dust was discharged into the streams. * * * 

[The jury returned a verdict for the defendant. The plaintiff mov- 
ed to set it aside.] 

Bellows, J.-^ The charge was in substance that the defendant, 
Jbeing a riparian proprietor, was entitled to a reasonable use of the 
stream for manufacturing purposes; and whether it was a reasonable 
use to throw into the stream the saw-dust resulting from the process 
of manufactul"e, was a question of fact for the jury; and in determin-" 
ing that question tlie jury were required to keep in view that the plain- 
tiff had a similar right to the reasonable use of the stream, which the 
defendant could not lawfully infringe; and they were further instruct- 
ed that, in deciding whether the use by the defendant was reasonable, 
they were to take into consideration all the circumstances of the case, 
including the size and character of the stream, the nature and im- 
portance of the use claimed and exercised by the defendant, together 
with the inconvenience or injury to the plaintiff. 

To these instructions we think there can be no objection; on the 
contrary, they are sustained by the general current of authority upon 
that subject. 

But the plaintiff urges that, in accordance with his request, the court 
should have charged the jury that the defendant had^no right to con- 
duct his saw-dust and shavings into the river, if they did any injury 
to the plaintiff's lands below, and also, that he had no right to dis- 
charge them into the river, unless such discharge was necessary to the 
running of his mill ; and it appears that the court declined to charge 
the jury in these terms, but did instruct them that each proprietor might 
use and apply the water, as it runs over his land, to domestic, agri- 
cultural, or manufacturing purposes, provided he uses it in a reasona- 
ble manner, and so as to work no actual or material injury to the oth- 
ers; and by actual or material injury is meant infringement of the 
right of others; and again, that the test is, not whether it produces 
some inconvenience or detriment to him, but whether it impairs the full_ 
and reasonable enjoyment of the stream that he is entitled to equally 
with the proprietor above. 

Of these instructions we think the plaintiff has no cause to complain ; 
nor do we perceive any error in declining to give the instructions pray- 
ed for, in the terms suggested. * * * 

As it is in respect to the abstraction, detention, and diversion of the 
water, so it is and must be in respect to the deposit of waste, or other 

28 Part of the opiuiou is omitted. 



Ch. 4) STREAMS 85 

substances in the stream, as incidental to its use in the various modes be- 
fore described. In many or most of these modes of use such deposits 
are to some extent necessarily made. In the construction and repair of 
mills and dams, in the excavations required for their foundations, and 
in the frequent removal of the gravel used for tightening such dams, 

. the water must for a time, and necessarily, be rendered so impure as 
to cause inconvenience occasionally to persons engaged in a kind of 
manufacture requiring pure water. But if such building and repairs 
are reasonably conducted, the inconvenience must be borne just the 
same, and for the same reasons, as the inconvenience caused by the 
temporary and reasonable detention of tlie water while filling the dam. 
So in the use of a stream for purposes of agriculture, such as wash- 
ing sheep, crossing it with teams, allowing cattle and swine to traverse 
it, — the same principles will apply. So in the use of many kinds of 
mills, such as saw-mills, fulling-mills, cotton and woolen factories, — 
there must be thrown into the stream more or less of the waste, such 
as saw-dust, soap-lees, and other impurities, and no ordinary care or 
prudence could prevent it. In the other cases such disposition of the 
whole waste, although not absolutely indispensable, would add greatly 
to the productive value of the mill power. 

Whether, in either case, it may be rightfully done must depend upon 
the question whether, under all the circumstances of the case, it is or 
is not a reasonable use of the stream ; and in determining that ques- 
tion the extent of the benefit to the mill owner, and of inconvenience 
or injury to others, may, as stated in the charge, very properly be con- 
sidered. So in respect to the size and character of the stream, it be- 
ing obvious that an amount of diminution or pollution which would be 
insignificant in a large stream, might, in a small one, be wholly de- 
structive of the common right. So also, in determining the reasona- 
bleness of suffering the manufacturer's waste to pass off in the current, 
much must depend upon the use to which the stream below can be or 
is apphed ; whether as a mere highway alone, or for purposes of man- 
ufacture, requiring pure water, or for tlie supply of an aqueduct to a 

■ large city, as in the case of the Croton river; and in respect to the 
lands below adjacent to the river, the character of the banks, whether 
they are usually overflowed or not in high water, should be consid- 
ered. * * * 

But it is urged that the court should have charged the jury, as re- 
quested by the plaintiff, that the defendant "had no right to discharge 
his saw-dust and shavings into the river, unless such discharge was 
necessary to the running of his mills." The question, however, was not 
whether the acts complained of were necessary to the enjoyment of 
the defendant's right, in the sense that without them it could not be en- 
joyed at all, but whether such acts were done in the reasonable use of 
the stream; and of course in deciding that question tlie jury should 
consider the necessity or importance of the right claimed so to discharge 



86 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

• 

the waste, as well as the extent of the injury likely to be caused to the 
plaintiff. 2* 

The plaintiff's counsel regards this discharge of the waste as an act 
by itself, distinct from the use of the mill, and likens it to the case of 
depositing the waste directly upon the plaintiff's land by means of 
teams or machinery provided for that purpose. To this view we are 
unable to assent, because the discharge of the waste into the stream", 
so far as it is reasonable, must be regarded as an incident of the right 
to use the stream for the manufacture which produces such waste, oth- 
erwise the act, if calculated to injure the proprietors below, could not 
be justified. In this respect it stands upon the same ground as the 
retardation or acceleration of the current in the proper and reasonable 
use of the mills. 

Upon this point the court charged the jury to consider how far the 
use, if important, could be of practical value without the right claim- 
ed, and also the extent of the detriment, inconvenience, or injury to the 
owner below ; and this we think goes as far as the plaintiff could right- 
fully ask. 

The remaining question touches the admission of evidence of usage, 
as bearing upon the reasonableness of discharging the saw-dust and 
shavings into the stream. There are cases where the customs and 
usages of trade may be proved to aid in the construction of contracts, 
and in defining the obligations arising out of such trade. 1 Greenl. Ev., 
sec. 292 ; 2 Stark. Ev. 453, 456, and notes ; Dunham v. Day, 13 Johns. 
(N. Y.) 40; Cutter v. Powell, 6 T. R. 320; Noble v. Kenoway, Doug. 
510; Dolby v. Hiest, 1 B. & B. 224; Renner v. Bank of Columbia, 9 
Wheat. 581, 6 L. Ed. 166. 



2 4 "Defendant shows that his mill is so constructed that the sawdust and 
refuse cannot be otherwise disposed of, except by permitting it to fall into 
the stream, without practically destroying its value as a water-power mill ; 
that owing to the construction of buildings adjacent to said mill, and the 
formation of the land thereabout, there is no other available method of 
disposing of this refuse without rendering the mill, as it now stands and is 
constructed, useless as such. Now, if he had gone one step further and 
shown that this was a proper way in which to locate and construct a saw- 
mill, and that there was no other feasible and practical method of doing it, 
we would probably not have felt warranted in disturbing the decision of the 
trial court : at least, if it appeared that this stream was adapted to and use- 
ful for such saw-mill purposes. But we look in vain either in the evidence 
or special findings of the court for anything tending to show that this 
mill was properly located or constructed, or that there was any necessity 
for locating or constructing it as it now is. In the location and construc- 
tion of his mill defendant was bound to anticipate and have regard for any 
reasonable use to which others might or could put the stream. For anything 
that appears in the evidence this mill could have been so constructed as to 
render the casting of this refuse into the water wholly unnecessary. The 
necessity for doing so now may be Avholly the result of defendant's own 
wrong or negligence in constructing this mill in the manner or place he 
did. If so, it will not avail him to show that he cannot use the mill as now 
located and constructed in any other way." Red River Roller Mills v. Wright, 
30 Minn. 249, 254, 15 N. W. 1(J7, lliO, 44 Am. Rep. l'J4 (1883). 



Ch. 4) STREAMS ~ 87 

But whether such customs and usnges may or may not be proved to 
bear upon the question of reasonableness in a case not growing out of 
any contract, upon which we give no opinion, we are satisfied that the 
court erred in admitting the proof of usage in the case before us ; 
upon the ground that the jury may be presumed to be already suffi- 
ciently informed as to what is a reasonable use of a water-course, as 
they are supposed to be as to what shall constitute a reasonable state 
of repair of a highway; Hubbard v. Concord, 35 N. H. 60, 69 Am. 
Dec. 520; Patterson v. Colebrook, 29 N. H. 94; or what shall be con- 
sidered a reasonable use of it by the traveller. 

Our opinion therefore is that this does not belong to that class of 
cases concerning navigation, trade, or manufactures, about which the 
jury may be supposed to require the aid arising from the proof of cus- 
toms or usages ; but we think the admission of -such evidence would 
be to open an extensive field of enquiry in this and similar cases, upon 
the same principle, that would tend greatly to increase the expenses 
of litigation, without affording in general any substantial aid to the 

jury- 

The direction to the jury upon this point appears to have been based 
upon the highly respectable authority of Snow v. Parsons, 28 Vt. 459, 
67 Am. Dec. 723, but upon a careful examination of the authorities we 
are unable to reconcile it with the course of our own courts upon that 
subject. 

There must, therefore, be a new trial.^^ 

2 5 B. was a riparian engaged in the manufacture of white paper, In which 
process he used the waters of the stream. A., -m upper riparian, discharged 
into the stream discolored \vater from his mine, which prevented B. from 
using the water for manufacturing purposes. Held, B. may enjoin A, Beach 
V. Sterling Iron & Zinc Co., 54 N. J. Eq. 05, 33 Ati. 286 (1S95). Ace: Young 
V. Bankier Distillery, [1893] A. C. GOl. 

Ace, where the discharge from tlie mine renders the water unusable for 
domestic or agricultural purposes: Drake v. Lady Ensley Coal. Iron & Ry. 
Co.. 102 Ala. 501, 14 South. 749, 24 L. R. A. 64. 48 Am. St. Rop. 77 (1893). 
Contra : Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 6 Atl. 453, 57 Am. 
Rep. 445 (1886). 

Compare Barnard v. Sherley, 135 Ind. 547, 34 N. E. 600, 35 N. E. 117, 24 
L. R. A. 568, 41 Am. St. Rep. 454 (1893) ; Id., 151 Ind. 160, 47 X. E. 671, 41 
L. R. A. 737 (1898) ; Merrifield v. City of Worcester, 110 Ma.ss. 216, 14 Am. 
Rep. 592 (1872) ; Stouts Mountain Coal & Coke Co. v. Ballard, 195 Ala. 283, 
70 South. 172 (1915). 

"But the defendants contend that the plaintiffs have no right to complain 
of any pollution of the Hebhle occasioned by them, because there are many 
other manufacturers who pour polluting matter into the stream above the 
plaintiffs' works, so that they could never have the water in a fit state for 
use, even if the defendants altogether ceased to foul it. The (tase of St. 
Helens' Smelting Company v. Tipping, 11 H. L. C. 642; 11 Jur. (N. S.) 785, is, 
however, an answer to this defence. Where there are many existing nuis-. 
ances, either to the air, or to water, it may be very ditttiult to trace to its 
source the injury occasioned by any one of them ; but if tlie defendants add 
to the former foul state of the water, and yet are not to be lesponsible on 
account of its previous condition, this cons(Hiuonce would follow, that if the 
plaintiffs were to make terms with the other polluters of the stream so as 
to have water free from impurities produced by their works, the defendants 
might say: 'We began to foul the stream at a time when, as against you, 



T ;??.,./ >- 



? 



88 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

STOCKPORT WATERWORKS CO. v. POTTER. 

(Court of Exchequer, 1864. 3 Hurl. & C. 300.) 

[Action for fouling the water of the river Mersey. 

For about fourteen years prior to 1853 the owners of the Woodbank 
estate, a riparian tract, had been in the habit of drawing water from 
what was called the Nab Pool weir, this being part of the riparian 
tract. The water ^o drawn was carried by tunnels and conduits to, and 
used to supply the town of, Stockport. In 1853 the owners of the 
Woodbank estate executed to the plaintiffs a deed under which the 
Stockport waterworks and the use of the conduits and tunnels were 
ceded to the plaintiff". The latter continued to draw the water in the 
same way up to the time of the bringing of this action, so that the user 
had been continuous for over 20 years. It was asserted by the plain- 
tiffs and denied by the defendant that the right to take the water from 
the stream was also granted to the plaintiffs by the above mentioned 
deed. 

That the defendant had unduly fouled the stream was to be taken 
for granted for the purposes of this decision.] 

BramwELIv, B.^'' * * * Qa^ ^ grantee from a riparian proprie:i 
tor of land, part of the former riparian estate, but separated from the 
stream by land of the grantor not included in the grant, with a grant 
from the grantor of a right to lay pipes from the stream to the granted 
land and take water by means of them from the stream to such grant- 
ed land, maintain an action against a person who fouls the stream? 
It is strange that this question should arise for the first time. There 
can be no doubt that the grant as between the riparian grantor and the 
grantee is good. And there is this to be said in favour of supporting 
the present claim, that we must suppose that the grantor and gran- 
tee have found the arrangement to be to their mutual advantage, that 
the stream can be more beneficially used this way than otherwise. 
Consequently that such an arrangement is for the public good. Why, 
then, should it not be effectual against a person, who as against the ri- 
parian proprietor is a wrongdoer? It imposes no additional burden 
on the riparians or others abdve. If they are wrongdoers by fouling 
now, so were they before. They could be restrained by injunction be- 
fore if they can now. No doubt they might be made liable to larger 
damages than they would have been before, but their rights are not 
altered. It was said that innumerable actions might be brought if the 

• it was lawful for us to do so, inasmuch as it was unflt for your use, and 
you cannot now, by getting rid of the existing pollutions from other sources, 
prevent our continuing to do what, at the time when we began, you had no 
right to object to.' " Chelmsford, L. C, in Crossley & Sons, Limited, v. 
Lightowler, L. R. 2 Ch. App. 478, 481 (1867). 

Compare Ferguson v. Firmenich Mfg. Co., 77 Iowa, 576, 42 N. W. 448, 
14 Am. St. Rep. 319 (1889). 

2« The statement of facts is rewritten and parts of the opinions are omitted. 



Ch. 4) STREAMS 89 

law were as the plaintiffs contend. But there are two answers to this, 
one practical, viz., that they would not be brought, the other that the 
same might happen now if the smallest portion of the bank was grant- 
ed with the right. • A similar answer may be given to the supposed 
difficulty of the riparian proprietors above desiring to buy up rights be- 
low. The power to make such a grant then is for the benefit of the 
grantor and grantee, and the public ; and the only prejudice by it to 
the riparian or wrongdoer above is the liability to greater damages and 
to an action and injlinction at the suit of persons additional to the ri- 
parians below. But this consideration could not preclude a covenant 
by the grantor that the grantee might apply in his name for an injunc- 
tion or sue in his name, nor would it preclude a grant of the part of the 
bank where the water was taken, in which case it is clear the grantee 
might maintain an action or obtain an injunction. And this suggests 
to me the remark that what may be done indirectly may be directly. 
Further, it does seem strange that if a man has an estate on the bank 
of a stream extending a mile from it, he may build houses on the land, 
conduct water from the stream to them, and maintain an action and 
recover substantial damages for the injury to each house: that his 
tenants of each, if he let them, might do the same even though he de- 
mised them for 1000 years at a peppercorn rent, but that if he grants 
away the house in fee with the right of water, such grantee can main- 
tain no action. What is to happen if he does so and repurchases? 
What would be the case if a riparian proprietor added to his estate an- 
other, to which water had been so conducted ? Suppose a riparian pro- 
prietor on both sides for a great length wholly alters the course of the 
stream, could he not effectually complain of a fouling of the water in 
the new course? Suppose besides the new course he allowed the old 
one to continue, the stream running in both, could he not then maintain 
actions for the damage done to either? If he could, could not his gran- 
tee of lands on the new stream, and if such grantee could, why cannot 
the plaintiffs? 

If the defendants' argument is well founded, it will follow that 
where the owner of land on a stream has built a mill alongside the 
stream with a cut or lead to it, and sells the mill, but not the natural 
watercourse, the owner of the mill can maintain no action against a 
riparian owner above who abstracts the water. I cannot tliink this is 
so. Further, suppose the person fouling the water was not a riparian 
proprietor but a mere wrongdoer, why should not an action lie against 
him? I can see no reason, nor can I see that his being such proprie- 
tor makes any difference. Upon these various considerations it seems 
to me this action is maintainable. I think it may fairly be asked to 
what extent I would carry the principle upon which I decide this? 
My answer is, to the extent to which die analogous case extends of a 
grantee of a right of way. Where a grantee of a right of way could 
maintain an action for disturbance of his way, so do I think the gran- 
tee of a right of water might. This case of the right of way, and 



90 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

cases of right of common, seem to me analogous to this case and au- 
thorities for my opinion. I am of course aware of the case of Keppeli 
V. Bailey, 2 Myl. & K. 516, and agree that new rights of property can- 
jiot_be_creatjed, but I think that rule does not interfere with the presence 
case. There, an owner of land was resisting a burden put on it by a 
former owner, and it was held that burden could not be attached to 
the land in the hands of the assignee. Here, no doubt, it can be, that 
is to say, on the lands of the riparian proprietors, the Marsdens. The 
question is not with them, but with one who would be a wrongdoer if 
he had no riparian estate or occupation, and is not the less so because 
he has. Nor is Hill v. Tupper, 2 H. & C. 121, any authority against the 
maintenance of this action. That case decided that in respect of what 
was no estate, and which gave no possession, but merely a right of ac- 
tion, against a covenantor, that right could not be enforced against a 
third party. On the other hand, Whaley v. Laing, 3 H. & N. 675, 901, 
seems a strong authority in favour of the plaintiff ; for all the Judges 
seem to have considered that had the water been taken as of right the 
' ' action would have been maintainable. I have only to add that, to my 
mind, this is not a question of easement or of dominant and servient 
tenement. The plaintiffs rely on the possession and enjoyment as of 
right, and charge the defendant as a wrongdoer, not the less because 
he is a riparian owner. I think the plaintiffs are entitled to^udgment. 

PoivLOCK, C. B. I am about to deliver the judgment of my Brother 
Channels and myself. My Brother WildE, being no longer a mem- 
ber of the Court, takes no part in the judgment ; but it may be satis- 
factory to the profession to know that he had prepared a judgment 
founded on the principles which I am about to state. * * * 
(^/^"^ There is no doubt that if the plaintiffs have such rights in reference 

to the stream as to be entitled to insist upon its purity for practical 
purposes, the acts of the defendants constitute a cause of action. 

But the defendants contend that, whatever others may have, the 
plaintiffs have no such rights. And they raise a variety of very for- 
midable objections. 

In the first place, the defendants argue that, although the right to 
pure water is the right of a riparian proprietor, the plaintiffs are not 
riparian proprietors at all. Nor are the plaintiffs the assignees of a 
riparian proprietor. 

For, first, the law knows of no such right as the subject of assign- 
ment separate from the land in respect of which it arises, and, secondly, 
no such assignment has in fact been made. 

And the defendants say there is no authority for the proposition that 
these rights in respect of water, which, in Embrey v. Owen, 6 Exch. 
353, and other modern cases have been for the first time defined and 
attributed to the ownership of land by the side of a river, can be dealt 
with in gross and assigned in any way except in conjunction with such 
land. 



Ch. 4) STREAMS 91 

And further, that if such rights could be the subject of transfer they 
have not been in fact transferred. * + * 

. The defendants also say that the rights even of a riparian proprietor 
himself would not extend to the abstraction from the stream of water 
for the use of a populous town situated on land in no way connected 
with such stream, and the conveyance of it away from the riverside 
to a considerable distance for that purpose without returning it into 
the stream. 

But then the plaintiff's case, thus driven from a more exact basis, 
is placed upon the fact that he and those under whom he claims have 
done the same thing for twenty years. 

To this the defendants answer that the mere doing of a particular 
thing for twenty years will not necessarily give a right of action against 
anybody who interferes with its being done ^s beneficially as it hitherto 
has been. 

The plaintiffs, thus pressed, contended before us that the right they 
claimed .of having pure water come down the stream for them to ab- 
stract and use was an "easement" acquired by more than twenty years 
user, in which the Stockport Waterworks were the dominant tenement 
and the defendant's land the servient tenement. * * * 

But a conclusive answer as it seems to us, was given to such an ease- 
ment. 

The defendant's land is far higher up on the stream than the con- 
duit or tunnel at Nab Pool Weir by which the plaintiff's abstract the 
water. 

No amount of water abstracted by the plaintiffs or those under whom 
they claim could possibly be felt by the defendants. If the water was 
abstracted unlawfully or in excessive quantities, or not returned into 
the river the proprietors below might have cause to complain, but tlie 
defendants could not, because they could not be affected by it. They 
had neither the will nOr the power to interfere with the plaintiffs' use 
nor to take legal proceedings against them. 

Nogrant could therefore be presumed by the defendants because no 
user ever existed adverse to their full enjoyment of the water.^ And 
Sanipson v. Hoddinott, 1 C. B. N. S. 590, 611, was cited as an express 
authority for this proposition. 

We have thus recapitulated these argtmnents of the defendants be- 
-cause they appear to us to contain a perfect answer to the plaintiffs' 
claim in whatever light it can be put. 

It is difficult to perceive any possible legal foundation for a right to 
Jiavejthe river kept pure, in a person situated as this Company is. 

There"seems to be no authority for contending that a riparian pro- 
prietor can keep the land abutting on the river the possession of which 
gives him his water rights, and at the same time transfer those rights 
or any of them, and thus create a right in gross by assigning a portion 
of his rights appurtenant. 



92 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

It seems to us clear that the rights which a riparian proprietor has 
with respect to the water are entirely derived from his PQssessiQiL_Qf 
land abutting on the river. > If he grants away any portion of his land 
so abutting, then the grantee becomes a riparian proprietor and has 
similar rights. But if he grants away a portion of his estate not abut- 
ting on the river, then clearly the grantee of the land would have no 
water rights by virtue merely of his occupation. Can he have them 
by express grant? It seems to us that the true answer to this is that 
he can have them against the grantor but not so as to sue other per- 
sons in his own name for an infringement of them. The case of Hill 
v. Tupper, 2 H. & C. 121, recently decided in this Court, is an authority 
for the proposition that a person cannot create by grant new rights of 
property so as to give the grantee a right of suing in his own name Jor 
an interruption of the right by a third party. 

The case where a riparian proprietor makes two streams instead of 
one and grants land on the new stream, seems to us analogous to a 
grant of a portion of the river bank, but not analogous to a grant of a 
portion of the riparian estate not abutting on the river. In the case of 
a grant of land on a new stream, the grantee obtains a right of access 
to the river, and it is by virtue of that right of access that he obtains 
his water rights. 

We think then that in this case the right claimed cannot be the sub- 
ject of a grant so as to enable the plaintiffs to sue in their own name 
for an infringement. 

Nor is the supposed easement founded on user much more defensible. 

The dominant and servient tenements have no apparent connexion 
with one another. 

The abstraction of the water from the stream took place at a spot 
situated on other land than that now called the dominant tenement, 
and in no sort of way affected the enjoyment of the water at what is 
now called the servient tenement. * * * 

Judgment for the defendants.^^ 

27 X. was the lessee of a mill situated on riparian land, but not iramediare- 
ly on the stream. C, X.'s lessor, had an unsealed agreement with B., the 
riparian next above C., whereby in consideration of an annual payment, C. 
had dug and maintained a sluiceway through B.'s land to the mill on C.'s 
land, the water being subsequently returned to the stream. The mill while in 
X.'s possession continued to derive its water power from this source. A., a 
riparian above B., diverted stream. Held, X. may maintain an action in 
his own name against A. Nuttal v. Bracewell, L. R. 2 Exch. 1 (1866). 

X., a non-riparian, drew water from the stream through a sluiceway to 
his mill, whence it was discharged into the stream by another sluice. C, a 
riparian, erected a dam that backed the water into the lower sluice and 
stopped the mill wheel. X. brought action against C. The court said: 

"The principle settled by these and other decisions is, that one having the 
possession of property may maintain an action against a wrongdoer tor 
an injury thereto, which cannot be defeated by showing the title to be in some 
one else than the plaintiff. 

"We see no good reason why the principle should not be applicable to 
such a case as the present. The plaintiff's action ought not to be barred, 
as we think, on the ground that he had not acquired the right from, the 



Ch. 5) SURFACE WATERS 93 

CHAPTER V • 
SURFACE WATERS 



EULRICH V. RICHTER. 
tSupreme Court of Wisconsin, 1875. 37 "Wis. 226.) 

Appeal from the Circuit Court for Winnebago County. 

Action for dama°:es for the alleged erection of a dam across a brook 
or water course, whereby it was alleged, that the defendant had caused 
the wate r to s et back and, overflow the plaintiff's land. Answer, a 
general denial. The testimony taken on the trial, for the most part, 
tended to show that the alleged brook was a ravine, through which 
surface water, which had gathered on the higher lands, ran during the 
melting of snows, and- after heavy rains, and sometimes during a large 
portion of the summer, but in no regular or defined channel, nor 
generally so as to hinder the growing of crops in the ravine on plain- 
tiff's land ; that the plaintiff had dug or plowed two ditches, one 
up and down tHe ravine, and one from his cellar, and run them under 
the line fence upon the defendant's land ; that, thereupon, the plaintiff 
[defendant] had erected a dam to prevent the discharge of the waters 
from such ravine and ditches upon her land. The court instructed 
the jury in substance that, there being no substantial conflict in the 
testimony, as to tlie character of the stream, as a proposition of law, 
upon the testimony, the locus in quo is a water course ; and the de- 
Tendant owning land upon it, had no right to dam it up, and set the 
water back upon the upper proprietors, and was liable for the resulting 
damages. 

Cole, J. We think the learned circuit court erred in charging as a 
proposition of law, that the locus in quo was a natural water course. 
The jury were told that there was no substantial conflict in the testi- 
mony with reference to the character of the stream, and that as a rnat- 
ter of law it was a water course, which the defendant had obstructed. 

The de finition of a water course, as given by Mr. Angell, and which 
has been~substantially adopted by this court, is, a stream of water con- 
sisting;_ of a bed, banks and water ; thoiigh the .water need not flow 
continually,. , and there are many water courses wHTcR are sometime/ 



riparian owners mentioned, to divert the water from its natural channel 
He may be called upon by such owners to respond in damages for doing so 
But, whether he shall be or not, it is a matter that does not in the leasi 
concern the defendants." Bristol Hydraulic Co. v. Boyer, 67 lud. 236, 240 
(1879). 

Compare Williams v. Wadsworth, 51 Conn. 277 (1883) ; Wyman v. Oliver. 
75 Me. 421 (1883) ; St. Anthony Falls Water-Power Co. v. Minneapolis, 41 
Minn. 270. 43 N. W. 56 (1889). 



94 RIGHTS INCIDENTAL TO I'OSSESSION (Part 1 

/ 

Ary. There is, hov/ever, a distinction in law between a regular flow- 
ing stream of water, which at certain seasons is dried up, iand those 
occasional bursts of water, which, in times of freshet, or melting dt 
snow and ice, descend from the hills and inundate the country. To 
maintain the character of a water course, it must appear that the 
water usually flows in a certain direction, and by a regular channel, 
with banks or sides. It need not be shown that the water flows con- 
tinually; the stream may at times be dry; but it must have a well- 
defined and substantial existence. Angell on Watercourses, § 4; Hoyt 
V. City of Hudson, 27 Wis. 656, 9 Am. Rep. 473 ; Fryer v. Warne, 29 
'wis. 511. 

According to our understanding of the testimony, there is considera- 
ble doubt whether it proves a water course, within this definition; 
or whether it did not appear that the water was mere surface water, 
descending from higher to lower ground, in no defined channel, in 
times of rain or the melting of snows and ice in the spring. If it was 
mere surface water, caused by rain or snow, which naturally flowed 
down the hollow or ravine, but in no defined natural channel having 
a bed and banks, then it was not a water course, and the defendant 
had the right to use such means as she might deem necessary to keep 
it off her land. For this court has adopted the common la\v rule, that 
the owner of the superior or higher ground has no natural easement 
or servitude to discharge mere surface water, such as falls or ac^ 
cumulates by rain or the melting of snow on his land, upon and over 
the land of his neighbor which may happen to be on a lower plane^ 
(Pettigrew v. Village of Evansville, 25 Wis. 223, 3 Am. Rep. 50 ; Hoyt 
V. City of Hudson, supra) ; but that such neighbor has the right to 
obstruct or change the flow of such water by preventing it from com- 
ing within his boundaries. 

There was testimony which tended to show that the flow of water 
down the hollow or ravine from the plaintiff's to the defendant's land 
was not in any regular channel ; that it was only occasional, and did 
not prevent the cultivation of the ravine, or the growing of grass there. 
The plaintiff's land was rolling, and considerably higher than the de- 
fendant's, and of course all surface water caused by rains or the melt- 
ing of snow was discharged from the higher through the lower ground. 
But there was testimony from which the jury might have found that 
this flow of water did not constitute a water course within the sense 
of the law ; that it had no well-defined channel with a bed and banks, 
which extended from the land of the plaintiff upon and across the 
land of the defendant. And this question, whether there was a water 
course there or not, should, we think, have been submitted to the jury 
upon the evidence, instead of being decided' as a proposition of law. 
Had there been no dispute as to the facts, nor any testimony which 
tended to show that the locus in quo was not a water course, and that 
the rights and duties of proprietors on such a stream had no applica- 
tion, the charge of the court might have been proper. But, upon the 



Ch. n) SURFACE WATERS 95 

testimony, _tlie_auestion should have gone to the jury to determine 
whether there w as a water course within the legal definition. 

We shall go into no examination of the evidence at the present time, 
nor express any opinion as to what inference should be drawn from it. 
The facts of the case are not so clear and undisputed as to warrant 
the court in withdrawing from the jury the question, whether the 
locus in quo was a natural water course. 

We therefore think there must be a new trial. 

By the .Court. The judgment of the circuit court is__reyersed, and 
a new trial awarded.^ 



MACOMBER v. GODFREY. 
(Supreme Court of Massachusetts, 1871. 108 Mass. 219.)2 

Tort for t he diversion of a water course by the defendant, whereby 
the water was prevented from flowing through the plaintiffs' land 
and irrigating their crops. Trial in the superior court, before Scudder, 
J., who made the following report thereof : 

"The plaintiffs' counsel, in his opening to the jur}^ stated that the 
evidence would show that from time immemorial a natural stream of 
water had flowed from a southerly direction across the road and upon 
the defendant's land, taking a northwesterly course across the de- 
fendant's land ; that for a part of the way across the same it ran in a 
well-defined channel, but when it reached a point within about five 
rods of the plaintiffs' adjoining land the water spread out over the 
surface of the ground, covering a space a few rods in width, and so 
ran upon and across the plaintiffs' land, which was a level meadow, cov- 
ering the same for several rods in width, and irrigating it in a valua- 
ble manner through its whole length-, about seven rods, and thence on 
to other land of other owners beyond ; that from the point where it so 
spread out over the surface on the defendant's land there was no defin- 
ed channel either on the defendant's land or through the whole length 
of the plaintiffs' land, and not until a short distance beyond the plain- 
tiffs' land, where it again formed. a small brook, and ran off in a west- 
erly direction to the river; that the plaintiffs' and defendant's lands 

1 A creek furnishing the outlet to a lake was blocked by sand. Thereafter 
the waters of the lake,' starting at the lowest part of the bank of the lake 
in a general northerly direction, worked over the flat marshy lands cut by 
low ridges, and overgrown by bushes to another creek. Tliere was no de- 
fined waterway, but for most of the year the water had a sufficient move- 
ment so that, if not interrupted, it would reach the second creek. The de- 
fendant erecte d a dike, as a consequence of wbich the water was kept off 
from his' lancfaiur" worked over onto land of the plaintiff, where it would 
not have gone but for the dike. Held, the plaintiff is entitled to an injunc- 
tion asainst, the maintenance of the dike. West v. Taylor, 16 Or. 165, 13 
Pac. eBrTTtSBS). See. also, Gillett v. Johnson, 30 Conn. ISO (1861) ; Earl v. 
De Hart, 12 N. J. Eq. 2S0, 72 Am. Dec. 395 (1S5C) ; Boyntou v. Gilman, 53 
Vt. 17 (ISSO). 

2 The statement and opinion on new trial are omitted. 



90 RIGHTS INCIDENTAL TO POSSESSION (Part 'l 

formerly belonged to the same ancestor, and the division was made 
after his death by quitclaim deeds; and that the defendant di\erted 
this stream on his own land near to the road, where it was a water 
course running in a defined channel, turning it in a northerly direc- 
tion so that it ceased to flow upon the plaintiffs' land, thus injuring 
their land and crops. 

"Upon this opening statement, the judge ruled that the plaintiffs' 
action could not be maintained, and with the consent of parties re- 
ports the case before verdict for consideration by the supreijie judicial 
court. If the above ruling is correct, judgment is to be entered for the 
defendant ; if it is incorrect, the case to be sent back for trial." 

Chapman, C, J. The defendant admits the well-established princi- 
ple, that, where there is a natural water course, each successive ripari- 
an proprietor has a right of property in it, and may maintain an ac- 
tion against one who diverts it from coming down to his land. But he 
contends that the facts stated in the report are not sufficient to es- 
tablish the existence of such a water course. This is the only point 
now presented to us. 

We cannot doubt that water which has flowed from time immemorial 
in a well-defined channel till it comes upon the defendant's land, and 
again after it has passed a short distance beyond the plaintiffs' land 
forms a brook, and thus runs across the land of several proprietors 
to a river, into which it empties, is a natural water course w hen it 
t hus flo ws. But the defendant contends that because, at a point on 
his land about five rods above the plaintiffs' land, the water spreads 
out over the surface, covering a space of a few rods in width, and 
thus runs upon and across the plaintiffs' land, which is a level meadow, 
and covers the same for several rods in width, irrigating it in a valua- 
ble manner through its whole length, being about seven rods, and 
during this whole length of twelve rods has no defined channel, it 
ceases to be a water course, and is to be regarded as mere surface 
water, to the flow of which the plaintiffs have no right. 

If the whole of the stream had sunk into the defendant's soil, and 
no water remained to pass to the plaintiffs' land except under the 
surface, it would have ceased to be a water course, and the plaintiffs 
would have had no right to it. Broadbent v. Ramsbotham, 11 Exch. 
602. Buffum v. Harris, 5 R. I. 243. Or if the water had only flowed 
in temporary outbursts, caused by melting snow or by rain, it would 
have been surface water, as in Ashley v, Wolcott, 11 Cush. 192; the 
defendant might have diverted it, and the plaintiffs might have 
raised barriers on their land to prevent its flowing upon their lot below. 
Gannon v. Hargadon, 10 Allen, 106, S7 Am. Dec. 02d ; Jrranklin v. Fisk, 
13 Allen, 211, 90 Am. Dec. 194. But where, owing to the level char- 
acter of the land, it spreads out over a wide space without any ap- 
parent banks, yet usually flows in a continuous current, and passes 
over the surface to the lands below, it still continues to be a water 
course. Gillett v. Johnson,' 30 Conn. 180. If the plaintiffs had erected 



Ch. 5) SURFACE WATERS 97 

a barrier to keep it from their land, it would evidently have accumu- 
lated, by its natural and regular flow, upon the defendant's land, not 
merely when there were melting snows or rains, but at all ordinary 
seasons. We cannot doubt that not only the defendant, but all the 
lower proprietors, could have maintained an action against the plain- 
tiffs for any damage caused by such obstruction. For^jtjhas a regular 
and jiatural flow from a permanent source ; and its usual course is 
in a channel, with a well-defined bed and banks, and neither upon the 
land^of the plaintiffs or of the defendant does it entirely lose this 
^character. 

Case to stand for trial.' 



SCHAEFER v. MARTHALER. 

(Supreme Court of Minnesota, 1886. 34 Minn. 487, 26 N. W. 726, 57 Am. 

Rep. 73.) 

GiLFiLLAN, C. J. Action to enjoin defendant from draining a small 
Jake_QrLpo.nd. The parties own and occupy adjoining lands. There is 
situated partly on the 'plaintiff's land and partly on defendant's land 
a body of water, four and one- fourth acres in extent, in a natural 
depression, forming a basin, fed solely by surface waters produced 
by rains and melting snows falling upon higher adjacent lands, and 
running naturally into such basin. The greater depth of the water 
in the basin, at the deepest place, is, at an ordinary stage, five feet, 
and at the same stage its greatest depth on the line between the lands 
of the parties is two and nine-tenths feet. The character of the soil 
under the basin is such that it retains the water, so that the only waste 
is from evaporation, except during high water, for six or eight weeks 
in the year, when it overflows through a natural channel situate on 
defendant's land. There is another natural channel on defendant's 
land, through which, during heavy rains, and when there is an ac- 
cumulation of water on the high lands from melting snow, the water 
flows into the basin. The parties have owned and occupied their re- 
spective lands for 30 years, and the body of water has never, so far 
as known, been dry except at a time of extreme drought in the year 
1864. In winter the water freezes to the bottom, but, by cutting 
through the ice, and digging into the mud at the bottom, water for stock 
can be obtained, in which manner plaintiff has often procured water 
for his stock. 

There must be in this state a great number of bodies of water simi- 
lar to this — some larger, some smaller — situate upon lands of different 
owners ; so that the question involved is one of considerable im- 

3 Ace.: Mitchell v. Bain, 142 Ind. 604, 42 N. E. 230 (1895). Otherwise 
where the water spreads out, but does not again form itself into a stream. 
Hawley v. Sheldon, 64 Vt. 491, 24 Atl. 717, 33 Am. St. Rep. 941 (1892). 

BiG.RlGHTS — 7 



98 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

portance. The question has never been before this court. In Bennett 
V. Murtaugh, 20 Minn. 151, (Gil. 135), an injunction against draining 
a small lake was sustained, but the point here raised was not presented. 
The defendant claims the right to drain the lake or pond, on the 
proposition that it is surface water, (because coming into the basin, 
over the surface of adjacent lands, from rains and melting snows,) 
and that the rule applicable to surface waters applies. It is somewhat 
strange that, so far as we are able to ascertain, there is no case re- 
ported which decides the rights, with respect to such a body of water, 
of the different owners of the land on which it lies. The cases most 
nearly analogous are those relating to water courses. Under the 
common law there is a marked difference in the rules governing in 
cases of surface waters and those applicable to water courses ; for 
one owner is under no obligation to receive upon his own land surface 
waters from the land of another, nor to permit them to flow from his 
land to that of another, nor to retain them on his land for the benefit 
of other lands. Such waters belong to or are a part of the land on 
which they happen to be at the time, and the owner may ordinarily 
do what he will with them while, on his land, doing no unnecessary 
harm to others. But a natural water course is the common property 
of the lands through which it flows, to this extent : that no owner may 
arrest its passage, either to prevent its coming upon his own land or 
going to the land of another. It is regarded as an advantage or ele- 
ment of value to each piece of land through which it flows, which 
nature has bestowed upon it, and which belongs as much to one piece 
of land through which it runs as to another. When surface waters 
reach and become part of a natural water course, they lose their char- 
acter of surface waters, and come under the rules governing water 
courses. Broadbent v. Ramsbotham, 11 Exch. 602; Earl v. De Hart, 
12 N. J. Eq. 280, 72 Am. Dec. 395 ; Jones v. Hannovan, 55 Mo. 462 ; 
Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276; Gibbs v. Williams, 25 
Kan. 214, 37 Am. Rep. 241 ; Palmer v. Waddell, 22 Kan. 352. But 
before they reach the water course, while they are still surface wafers, 
— that is, while they are oozing through the soil, or diffusing or squan- 
dering themselves over the surface, following no defined course, — 
the owner of the soil on which they happen to be may appropriate or 
divert them in the ordinary and reasonable use of his land. He is 
under no obligation to keep his land as a watershed, to feed the stream ; 
nor to keep it as a receptacle to receive and retain the overflow from 
the stream. The waters pass beyond his right of appropriation as soon 
as they reach, even on his own land, the_ natural water course. liis 
right in respect to the waters is then qualified, and must be exercised 
'A'uh due regard to the rights of others in the stream. xA.nd such waters, 
when they have ceased to spread and diffuse over the surface or per- 
colate through the soil; when they have lost their casual and vagrant 
character, and have reached and come to rest in a permanent mass or 
■body, in a natural receptacle or reservoir, not spreading over or soak- 



Ch. 5) SURFACE WATERS 91) 

ing into the soil, forming mere bog or marsh, — cannot be regarded 
as surface waters any more than they can be after they have entered 
into a stream. The mass or body of water constituting a lake or pond 
is an advantage or element of value to the land upon which nature has 
placed it, of the same kind as is the water course to the lands through 
which nature has caused it to flow. There is no reason which can be 
suggested why the stream should be the property of each on his own 
land, of all the lands through which it flows, and why one owner 
should not prevent its flow, as nature caused it to flow, upon the land 
of another, that is not equally applicable to a body of water like this ; 
and none can be suggested why the rights of the owners of the lands 
upon which nature has placed it should not be equal to the rights in 
respect to a stream. 

Applying the same rules that apply in respect to a water course, 
it would follow that no one is bound to keep his land as a watershed, 
to feed such a body of water; nor as a receptacle to retain the over- 
flow from it ; but that, in the reasonable and ordinary use or improve- 
ment of his land, he may interfere with or arrest the surface waters 
before they reach such body, or may drain off any bog or marsh on 
Jiis land formed by the overflow, although the doing of either may 
incidentally affect the amount of water in the lake or pond. We there- 
fore hold that defendant h^f^ not the right to drain off the lake. 
Judgment affirmed.* 



THOMPSON V. NEW HAVEN WATER CO. 
(Supreme Court of Connecticut, 1913. 86 Conn. 597, 86 Atl. 585.) 

[The defendant was an upper riparian proprietor; the plaintiff 
owned meadow land below the defendant, situate about 600 feet Lack 
from the river. In^the spring freshets, the flood water of the river 
would frequently run down from the defendant's land to the plaintiff's 
meadow, fertilizing it by the,_sedimentary deposits. These freshets oc- 
curred only in winter and spring, and in some years there were none at 
all. Their frequency, when they did occur, varied from year to year. 
The defendant built a low dike and constructed a conduit upon its own 
land, which intercepted the freshet water and diverted it to the de- 
fendant's reservoir, xthereby depriving the plaintiff's land of the benefit 
of these freshets. He sued to recover the damages so caused, and 
to enjoin the defendant from maintaining the embankment.. 

Judgment for the plaintiff; defendant appeals.] 

4 The dissenting opinion of Berry, J., is omitted. Ace: Alcorn v. Sadler, 
66 Miss. 221, 5 Soutli. 694 (1889). See Hebron Gravel Road Co. v. Harvey, 
90 Ind. 192, 46 Am. Rep. 199 (1883). 

In Applegate v. Franklin, 109 Mo. App. 293, 84 S. W. 347 (1904), a body of 
water covering 2,500 acTes and varying in depth from 3 to 6 feet was held 
surface waterT which an abutting owner might drain, even though so doing 
damaged another abutting owner. 



100 niGHTS iNciDEXTAL TO POSSESSION (Part 1 

PrEnticE', C. J.6 * * * These definitions [of a water course] 
necessarily imply, what is more directly stated in others, that it is a 
distinguishing mark of a water course that there be "a supply which 
is permanent in the sense that similar conditions will always produce 
a flow of water, and that the conditions recur with some degree of 
regularity, so that they establish and maintain, for considerable peri- 
ods of time, a running stream." Farnham on Waters and Water 
Courses, § 457. 

"Surface water" is a term which has been defined or vised variously. 
A few of the definitions embody statements which would imply that 
it is a term appropriate to be applied to all fresh water upon the 
surface of the eartli, not ponded, which is not that of a water course. 
Other authorities while giving a definition which afifords no logical 
foundation for such a broad use of the term, act upon the assumption 
that all nonponded fresh water is either surface or stream water. The 
better and more generally stated definitions and those which permit a 
consistent application productive of just results confine surface water 
within more definite limits. 

For instance, Amer. & Eng. Ency. of Law (volume 30, p. 323) says : 
"Surface water may be defined as waters on the surface of the ground 
which are of a casual or vagrant character, following no definite course, 
and having no substantial or permanent existence, and which are lost 
by being diffused over the surface of the ground, through percolation 
into the soil or. evaporation." Farnham treats it as water appearing 
upon the surface of the ground in a diffused state, with no permanent 
source of supply or regular course, and then disappearing by percola- 
tion or evaporation. Section 878. Water is surface water while it is 
oozing through the soil or diffusing and squandering itself over the 
surface, following no defined course. Schaefer v. Marthaler, 34 Minn. 
487,, 26 N. W. 726, 57 Am. Rep. 73. These definitions are doubtless 
open to criticism, as where the means of disappearance are limited to 
percolation and evaporation, and natural drainage into water courses 
is ignored. But they serve to indicate that water moving in volume, 
whose source is a stream, is excluded, and that conditions presenting 
the general appearance upon the surface of the earth of those created 
by rain or snowfall are those intended to be embraced. There are 
cases which appear to limit the term to water which had its immediate 
source in rains or melting snow. Crawford v. Bambo, 44 Ohio St. 
287, 7 N. E. 429. Others have properly included, as possible sources 
of surface water, springs upon or underneath the ground. Grand 
Junction Canal Co. v. Shugar, 6 L. R. Ch. App. 483, 486; Gray v. 
McWilliams, 98 Cal. 157, 32 Pac. 976, 21 L. R. A. 593, 35 Am. St. 
Rep. 163. 

A considerable number of our cases have dealt with surface water. 
* * * A study of these cases is convincing that the accepted con- 
is Part of the opinion is omitted. 



Ch. 5) SURFACE WATERS 101 

ception of surface water in this jurisdiction is one which is not suffi- 
ciently comprehensive to embrace flood water escaped from channels 
in large volume and flowing in masses to its destination in some larger 
and more permanent body. 

Looking at the various phases which the freshet overflow of streams 
may assume, it is apparent that it may present the unmistakable in- 
dicia of either a water course or of surface water. The water which 
has overleaped the banks, confining the normal flow of the stream, may 
still go on its way in a well-defined channel. Its line of movement 
may present all of the recognized indications of a water course. The 
bed, banks, and flow may be there, so that the water clearly deserves 
to be regarded as either a part of the stream from whose main course 
Pt was turned aside, or, at least, an independent stream. On the other 
hand, the escaped water may have become so scattered and diffused 
over the adjoining territory and there taken on such a character as to 
present all the recognized characteristics of surface water. It is equal- 
ly evident that this overflow may appear under such conditions that the 
requisites of a water course, according to our definition, are not pres- 
ent, and at the same time the characteristics of surface water, accord- 
ing to our accepted notions, are not discoverable. 

We are thus presented with the important practical question as to 
whether we shall change our definitions so that the limits of the fields 
of the two classes shall be brought together, and the two be made com- 
prehensive enough to Include all nonponded fresh water, or shall 
recognize a third class between the two, to be dealt with independently, 
and with a sole regard for the conditions it may present. In sub- 
stantially all, if not all, jurisdictions where there has been occasion to 
deal with conditions arising from flood water, the courts have felt 
under the necessity of finding a place for it, in one or the other of the 
two classes referred to, by some sort of expedient and at whatever 
cost of inconsistency. The result has been a most perplexing medley 
of decisions which refuse to yield a satisfactory working rule. In 
some cases flood water has been made to masquerade as surface water ; 
in more as a water course. The great struggle has been to so classify 
it that justice to the rights of parties under the given conditions might 
be done. When the classification has once been thus established, the 
difficulty has arisen that It fails, under another set of conditions, to 
lead to results consonant with justice, if accepted principles applicable 
to the class where the new conditions find themselves placed are ob- 
served. Then has come the necessity for legal gymnastics, if palpably 
right results were to be attained. A good illustration Is furnished by 
certain English cases. They have held that there was no good basis 
for distinction between the ordinary water of a stream and flood water. 
Menzies v. Breadalbone, 3 Bllgh N. S. 414; Rex v. Trafiford, 1 Barn. 
& Adol. 874; And yet in the latter case, on appeal, the court did not 
hesitate to say that a landowner might raise the banks of a stream so 



102 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

that its waters might not escape' as it had been accustomed to do. Traf- 
ford V. The King, 8 Bing. 204. * * * 

The questions which have arisen, where flood water conditions were 
involved, have usually grown out of the raising of the bank of the 
stream to prevent overflow, or the obstruction or diversion of the 
flood flow whereby it was cast back or thrown over upon the land of 
another proprietor in accumulated or accelerated volume to his dam- 
age. The rights of parties in such cases are not hard to find, and 
would not be difficult of definition, as applied to flood water alone. 
We have here, however, a very different question. It involves the 
right of a lower proprietor to have the natural flood flow continued 
to his land for the benefit which will be derived from it. This gen- 
eral subject is one which might be presented in various aspects. We 
have no occasion to attempt to anticipate all of them and formulate a 
rule applicable thereto. The case presents a comparatively simple 
situation, and we may well confine our ^attention to that. 

The evidence discloses that the defendant, the upper proprietor;^ has 
not attempted to appropriate the flood water reaching its land in the 
improvement or enjoyment of such land, or to interfere with or affect 
the flow of the water for any purpose connected with that land. The 
embankment, in so far as appears or can be imagined, neither serves, 
nor was intended to serve, any useful purpose. The conduit, as it 
was when the damage for which recovery was permitted, was equally 
useless for any present purpose, except as it may have carried surface 
or flood water into the defendant's reservoir some distance away, and 
there made it available for sale. Whatever prospective purpose it 
had was, in connection with the defendant's business, carried on else- 
where, and the embankment was created as an incident of the conduit's 
construction. We thus have a situation in which the plaintiff was 
damaged in his property by an act of the defendant in interfering with 
the natural flaw _pf^Jhe^flood water, which had no justification in the 
improvement, use, enjoyment, or protection of its land. Damage done 
under such circumstance cannot, with due regard for property rights, 
be regarded as absque injuria. * * * 

There is no error. In this opinion the other Judges concurred.* ' 

6 A., who had lawful access to a river, erected a diverting conduit, through 
which he proposed to conduct water to non-riparian land. The conduit was 
so constructed that it would not divert the ordinary How of the stream or or- 
dinary freshets, but only extraordinary floods in the rainy season. Held, 
B., a lower riparian, has no right of action in the lack of a showing that this 
diversion will damage him. Gallatin v. Corning Irrig. Co., 163 Cal. 405, 12(j 
Pac. 864, Ann. Cas. 1914A, 74 (1912). 

B. owned land bordering on the Ohio river below that of A. B. had plant- 
ed a thieli row of trees along the boundary between the two tracts. Prior 
to the growth of these trees the annual flood water of the Ohio river would 
sweep over the land of A., unobstructedly. As the trees increased in size, 
they formed a barrier 1>y means of which floating timber and other trash 
carried down by these floods were arrested and kept back on the land of A. 
As a consequence of the barrier so formed, the flood waters stayed longer 
on the land, and trash and sand were deposited there, so that much of the 



Ch. 5) SURFACE MAIERS 103 

BARKLEY v. WILCOX. 

(Court of Appeals of New York, 1S81. 86 N. Y. 140, 40 Am. Rep. 519.) 

Appeal from a judgment entered below in favor of defendant. 

This action was brought to recover damages for injuries alleged 
to have been sustained by the obstruction of the natural flow of sui-- 
face water from plaintiff's lot over and across that of defendant. 

Andrews, J.'' This is not the case of a natural water course. A 
natural water course is a natural stream flowing -in a defined bed or 
channel, with banks and sides, having permanent sources of supply. It 
is not essential to constitute a water course that the flow should be uni- 
form or uninterrupted. The other elements existing a stream does not 
lose the character of a natural water course, because in times of drought 
the flow may be diminished or temporarily suspended. It is sufficient 
if it is usually a stream of running water. Ang. Water Courses, § 4 ; 
Luther v, Winnisimmet Co., 9 Cush. (Mass.) 171. 

The parties in this case own adjacent lots on a street near a village, 
but not within the corporate limits. The findings are that the natural 
formation of the land was such that surface water from rains and melt- 
ing snows would descend from dift'erent directions and accumulate 
in the street in front of the plaintiff's lot, in varying quantities, accord- 
ing to tlie nature of the seasons, sometimes extending quite back upon 
the plaintiff's lot; that in times of unusual amount of rain, or thaw- 
ing snow, such accumulations, before the_^ra(ding of the defendant's 
lot, were accustomed to run off over a natural depression in the surface 
of the land across the defendant's lot, and thence over the lands of oth- 
ers, to the Neversink river; that when the amount of water was small 
it would soak away in the ground; that in 1871 the defendant built. a 
house-on his lot, and used the earth excavated in digging the cellar to 

land was ruined. Held, these flood waters are surface waters and A. has 
no cause of action. Taylor v. Ficlvas, 64 lud. 167, 31 Am. Rep. 114 (1878). 
Ace: Cass v. Dicks, 14 Wash. 75, 44 Pac. 118, .53 Am. St. Rep. 859 (1896). 
Contra: Pinkstaff v. Steffy, 216 111. 406, 75 N. E. 163 (1905). 

A railroad built a bridge across a river passing through low country. Cul- 
verts in the embankment built by it for its roadbed were not of sufficient 
size to permit ordinary flood waters to get back to the river, and as- a re- 
sult the flood waters were backed up against upper riparians to their dam- 
age. Held, the railroad is liable to the upper riparians for the damage so 
caused. Sullens v. Chicago, R. I. & P. Ry. Co., 74 Iowa, 659, 38 N. W. 545, 
7 Am. St. Rep. 501 (1888) ; Abbott v. Kansas City, St. J. & C. B. Ry. Co., 
83 Mo. 271. 53 Am. Rep. 581 (1884) (overruling and discussing earlier Mis- 
souri cases) ; Fordham v. Northern Pac. Ry. Co., 30 Mont. 421, 76 Pac. 1040, 
66 L. R. A. 556, 104 Am. St. Rep. 729 (1904) ; Uhl v. Ohio River R. Co., 56 W. 
Va. 494, 49 S. E. 378, 68 L. R. A. 138, 107 Am. St. Rep. 968, 3 Ann. Cas. 201 
(1904). 

See Missouri Pacific Rv. Co. v. Keys^ 55 Kan. 205, 40 Fac, 275, 49 Am. 
St. Rep. 249 (1895). 

As to the liability of a railroad in case of extraordinary flood waters, see 
O'Connell v. East Tennessee, V. & G. Ry. Co., 87 Ga. 246, 13 S. E. 489, 13 
L. R. A. 394, 27 Am. St. Rep. 246 (1891). 

1 Part of the opinion is omitted. * 



104 RIGHTS INCIDENTAL TO POSSESSION (Part I 

improve and better the condition of his lot, by grading and filHng up 
the lot and sidewalk in front of it, about twelve indies, and on a sub- 
sequent occasion he filled in several inches more ; that in the spring of 
1875 there was an unusually large accumulation of water from melting 
snow ariid rains in front of and about the plaintiff's premises, so that 
the water ran into the cellar of his house and occasioned serious dam- 
age ; that the filling in of the defendant's lot had the effect to increase 
the accumulation of water on the plaintiff's lot, and contributed to the 
injury to his property. 

There was no natural water course over the defendant's lot. The 
surface water, by reason of the natural features of the ground, and the 
force of gravity, when it accumulated beyond a certain amount in front 
of the plaintiff's lot, passed upon and over the lot of the defendant. 
The discharge was not constant or usual, but occasional only. There 
was no channel or stream in the usual sense of those terms. In an un- 
dulating country there must always be valleys and depressions, to which 
water, from rains or snow, will find its way from the hill-sides and be 
finally discharged into some natural outlet. But this does not consti- 
tute such valleys or depressions water courses. Whether, when the 
premises of adjoining owners are so situated that surface water falling 
upon one tenement naturally descends to and passes over the other, 
the incidents of a water course apply to and govern the rights of the 
respective parties so that the owner of the lower tenement may not, 
even in good faith and for the purpose of improving or building upon 
his own land, obstruct the flow of such water to the injury of the own- 
er above, is the question to be determined in this case. 

This question does not seem to have been authoritatively decided in 
this state. It was referred to by Denio, Ch. J., in Goodale v. Tuttle, 
29 N. Y. 467, where he said : "And in respect to the running off of 
surface water caused by rain or snow I know of no principle which will 
prevent the owner of land from filling up the wet and marshy places on 
his own soil, for its amelioration and his own advantage, because his 
neighbor's land is so situated as to be incommoded by it. Such a doc- 
trine would militate against the well-settled rule that the owner of land 
has full dominion over the whole space above and below the surface." 
The case in which these observations were made did not call for the 
decision of the question, but they show the opinion of a great judge 
upon the point now in judgment. Similar views have been expressed 
in subsequent cases in this court, although in none of them it seems 
was the question before the court for decision. Vanderwiele v. Taylor, 
65 N. Y. 341 ; Lynch v. Mayor, 76 N. Y. 60, 32 Am. Rep. 271. 

The question has been considered by courts in other states, and has 
been decided in different ways. In some, the doctrine of the civil law, 
has been adopted as the rule of decision. By that law, the right of 
drainage of surface waters, as between owners of adjacent lands, of 
different elevations, is governed by the law of nature. The lower pro- 
pfietor is bound to receive the waters which naturally flow from the 



Ch. 5) SURFACE WATERS 105 

estate above, provided the industry of man has not created or increased 
the servitude. Corp. Jur. Civ. 39, tit. 3, §§ 2, 3, 4, 5 ; Domat (Cush. 
Ed.), 616; Code Napoleon, art. 640; Code Louisiana, art. 656. The 
courts of Pennsylvania, Illinois, California and Louisiana have adopted 
this rule, and it has been referred to with approval by the courts of 
Ohio and Missouri. Martin v. Riddle, 26 .Pa. 415, note; Kauffnian v. 
Griesemer, id. 407, 67 Am. Dec. 437 ; Gillham v. Madison Co. R. Co.,- 
49 111. 484, 95 Am. Dec. 627; Gormley v. Sanford, 52 111. 158; Ogburn 
V. Connor, 46 Cal. 346, 13 Am. Rep. 213; Delahoussaye v. Judice, 13 
La. Ann. 587, 71 Am. Dec. 521 ; Hays v. Hays, 19 La. 351 ; Butler v. 
Peck, 16 Ohio St. 335, 88 Am. Dec. 452 ; Laumier v. Francis, 23 Mo. 
181. On the other hand, the courts of Massachusetts, New Jersey, 
New Hampshire and Wisconsin have rejected the doctrine of the civil 
law, and hold that the relation of dominant and servient tenements does 
not by the common law apply between adjoining lands of different own- 
ers, so as to give the upper proprietor the legal right, as an incident of 
his estate, to have the surface water falling on his land, discharged 
over the land of the lower proprietor, although it naturally finds its 
way there; and that the lower proprietor may lawfully, for the im- 
provement of his estate and in the course of good husbandry, or to 
make* erections thereon, fill up the low places on his land, although by 
so doing he obstructs or prevents the surface water from passing there- 
on from the premises above, to the injury of the upper proprietor. 
Luther V. Winnisimmet Co., 9 Cush. (Mass.) 171 ; Parks v. Newbury- 
port, 10 Gray (Mass.) 28; Dickinson v. Worcester, 7 Allen (Mass.) 
19 ; Gannon v. Hargadon, 10 Allen (Mass.) 106, 87 Am. Dec. 625 ; 
Bowlsby V. Speer, 31 N. J. Law, 351, 86 Am. Dec. 216; Pettigrew v. 
Evansville, 25 Wis. 223, 3 Am. Rep. 50; Hoyt v. Hudson, ^7 Wis. 656, 
9 Am. Rep. 473; Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276. It 
may be observed that in Pennsylvania, house lots in towns and cities 
seem to be regarded as not subject to the rule declared in the other cas- 
es in that state, in respect to surface drainage. Bentz v. Armstrong, 
8 Watts & S. 40, 42 Am. Dec. 265. * * * 

Upon this state of the authorities, we are at liberty to adopt such rule 
on the subject as we may deem jnost consonant with the demands of 
justice,^ having in view on the one hand individual rights, and on the 
other the interests of society at large. Upon consideration of the ques- 
tion, we are of opinion that the rule stated by Denio, C. J., in Goodale 
v. Tuttle, is the one best adapted to our condition, and accords with 
pubhc policy, while at the same time it does not deprive the owner of 
the upper tenement, of any legal right of property. The maxim, aqua 
currit et debet currere ut currere solebat, expresses the general law 
which governs the rights of owners of property on water courses. The 
owners of land on a water course are not owners of the water which 
flows in it. But each owner is entitled by virtue of his ownership of the 
soil to the reasonable use of the water as it passes his premises, for do- 
mestic and other uses, not inconsistent with a like reasonable use of the 



106 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

Stream, by owners above and below him. Such use is incideni to 
his right of property in the soil. But he cannot divert or unreasonably 
obstruct the passage of the water, to the injury of other proprietors. 
These familiar principles are founded upon the most obvious dictates 
of natural justice and public policy. The existence of streams is a 
permanent provision of nature, open to observation, by every purchaser 
of land through which they pass. The multiplied uses to which in civ- 
ilized society the water of rivers and streams is applied, and the wide 
injury which may result from an unreasonable interference with the 
order of nature, forbid an exclusive appropriation, by any individual, 
of the water in a natural water course, or any unreasonable interrup- 
tion in the flow. 

It is said that the same principle of following the order of nature 
should be applied between coterminous proprietors, in determining the 
right of mere surface drainage. But it is to be observed that the law 
has always recognized a wide distinction between the right of an owner 
to deal with surface water falling or collecting on his land, and his 
right in the water of a natural water course. In such water, before 
it leaves his land and becomes part of a definite water course, the own- 
er of the land is deemed to have an absolute property, and he may ap- 
propriate it to his exclusive use, or get rid of it in any way h'e can, 
provided only that he does not cast it by drains or ditches, upon the 
land of his neighbor ; and he may do this, although by so doing he pre- 
vents the water reaching a natural water course, as it formerly did, 
thereby occasioning injury to mill-owners, or other proprietors on the 
stream. So also he may by digging on his own land, intercept the per- 
colating waters which supply his neighbor's spring. Such consequen- 
tial injury gives no right of action. Action v. Blundell, 12 M. & W. 
324; Rawstron v. Tavlor, 11 Exch. 369; Phelps v. Nowlen, 72 N. Y. 
39, 28 Am. Rep. 93. ' 

Now in these cases there is an interference with natural la ws. B ut 
those laws are to be construed in connection with social laws and the 
laws of property. The interference in these cases with natural^laws 
is justified, because the general law of society is, that the owner of land 
has full dominion over what is above, upon or below the surface, and 
the owner in doing the acts supposed is exercising merely a legal right. 
The owner of wet and spongy land cannot, it is true, by drains or other 
artificial means, collect the surface water into channels, and discharge 
it upon the land of his neighbor to his injury. This is alike the rule of 
the civil and common law. Corp. Jur. Civ. 39, tit. 3, §§ 2, 3, 4, 5 ; 
Noonan v. Albany, 79 N. Y. 475, 35 Am. Rep. 540; Miller v. Lau- 
bach, 47 Pa. 154, 86 Am. Dec. 521. But it does not follow, we think, 
that the owner of land, which is so situated that the surface waters 
from the lands above naturally descend upon and pass over it, may not 
in good faith, and for the purpose of building upon or improving his 
land, fill or grade it, although thereby the water is prevented from 
reaching it, and is retained upon the lands above. 



Ch. 5) SURFACE WATERS 107 

There is a manifest distinction between casting water upon another's 
land, and preventing the flow of surface water upon your own. So- 
ciety has an interest in the cultivation and improvement of lands, and 
in the reclamation of waste lands. It is also for the public interest that 
improvements shall be made, and that towns and cities shall be built. 
To adopt the principle that the law of nature must be observed in re- 
spect to surface drainage would, we think, place undue restriction upon 
industry and enterprise, and the control by an owner of his property. 
Of course in some cases the opposite principle may cause injury to the. 
upper proprietor. But the question should, we think, be determined 
largely upon considerations of public policy and general utility. Which 
rule will on the w^hole best subserve the public interests, and is most 
-reasonable in practice? For the reasons stated, we think the rule of 
the civil law should not be adopted in this state. The case before us 
is an illustration of the impolicy of following it. Several house lots 
(substantially village lots) are crossed by the depression. They must 
remain unimproved if the right claimed by the plaintiff exists. It is bet- 
ter we think to establish a rule which will pennit the reclamation and 
improvement of low and waste lands, to one which will impose upon 
them a perpetual servitude, for the purpose of drainage for the benefit 
of upper proprietors. We do not intend to say that there may not be 
cases which, owing to special conditions and circumstances, should be 
exceptions to the general rule declared. 

But this case is within it, and we think -the judgment below should be 
affirmed. All concur. 

Judgment affirmed.* 



GORMLEY v. SANFORD. 

(Supreme Court of Illiuois, 1S69. 52 111. 158.) 

Lawre;nce;, J.* This was an action on the case, brought by San- 
ford against Gormley, for^ wrongfully obstructing a channel by which,^ 
as claimed by plaintiff, his land was drained. Sanford owned certain 
lots in block 3, in the city of Morris, Grundy county, numbered 11, 12 
and 13, and Gormley owned lots 5, 6 and 7, in the same block, situat- 
ed south of Sanford's lots, and separated from them by an alley. In 
May, 1867, Gormley deposited upon the rear part of his lots, near the 

sAcc: Gibbs v. Williams. 25 Kan. 214, 37 Am. Rep. 241 (1S81) ; Bates v. 
Smith, 100 Mass. 181 (18GS). 

Ace, as to railroad embankments: Walker v. New Mexico & S. P. R. R., 
165 U. S. 593, 17 Sup. Ct. 421, 41 L. Ed. 837 (1897) ; Morrison v. Bucksport 
& B. R. R., 67 Me. .353 (1877). Se6, also, cases cited in note to Thompson. 
V. New Haven Water Co.. ante, p. 102. 

A. drained his land, thereby cutting off surface water, which formerly- 
flowed over and irrigated B.'s land. Held, B. has no cause of action, even 
though his land is damaged by the cutting off of the water. Rawstrom v. 
Taylor, 11 t^xch. .369 (18.55) ; Broadbent v. Ramsbotham, 11 Exch. 002 (1856>. 

» The statement of facts and part of the opinion are omitted. 



108 RIGHTS INCIDENTAL TO TOSSESSION (Part 1 

alley a quantity of earth, which he had taken from an adjoining coal 
shaft. At that time Sanford had upon his lots a large number of 
grape vines which had been planted two years before, about two hun- 
dred of which, together with a few young fruit trees, died in the spring 
of 1867, and he insists, their death was caused by the water thrown 
back on the rear of his lots by the deposit of earth on Gormley's lots, 
across which he claims a right of drainage, as being what the civil law 
terms the lower or servient heritage. The jury found a verdict for 
the plaintiff, allowing Him $1,500 damages, and the defendant appealed. 

It is admitted that the water which flowed from Sanford's to Gorm- 
ley's land, the obstruction of which is the basis of the action, is wholly 
surface water, consisting of rain which fell upon the land itself, or of 
snow falling and melting there, and much of the argument has been- 
addressed to the question, whether the same law in regard to drain- 
age, which applies to well-defined water courses, is applicable to cases 
of this character. 

This question has already been decided by this court in Gillham v. 
Madison County R. R. Co.,^49 111. 484, 95 Am. Dec. 627, not reported, 
and probably not within the knowledge of counsel, when this case was 
argued. In the opinion filed in that case, we said, although there was 
a conflict of authorities among the courts of this country, yet the rule 
forbidding the owner of the servient heritage to obstruct the natural 
flow of surface waters, was not only the clear and well-settled rule of 
the civil law, but had been generally adopted in the common-law courts, 
both of this country and of England. Various cases bearing upon each 
side of the question are cited in that opinion, and it is not necessary 
to cite them again. This rule was thought by this court, in that cause, 
to rest upon a sound basis of reason and authority, and was adopted. 
We find nothing in the argument, or authorities presented in the pres- 
ent case, to shake our confidence in the conclusion at which we then 
arrived. In our judgment, the reasoning which leads to the rule for- 
bidding the owner of a field to overflow an adjoining field by obstruct- 
ing a natural water course, fed by remote springs, applies, with equal 
force, to the obstruction of a natural channel through which the sur- 
face waters, derived from the rain or snow falling on such field, arc 
wont to flow. What difference does it make, in principle, whether the 
water comes directly upon the field from the clouds above, or has fallen 
upon remote hills, and comes thence in a running stream upon the sur- 
face, or rise,s in a spring upon tlie upper field and flows upon the low- 
er? The cases asserting a dift'erent rule for surface waters and run- 
ning streams, furnish no satisfactory reason for the distinction. 

It is suggested in the argument, if the owner of the superior heritage 
has a right to have his surface waters drain upon the inferior, it would 
follow that he must allow them so to drain, and would have no right 
to use and exhaust them for his own benefit, or to drain them in a dif- 
ferent direction. We do not perceive why this result should follow. 
The right of the owner of the superior heritage to drainage is based 



Ch. 5) SURFACE WATERS 109 

simply on the principle that nature has ordained such drainage, and it 
is but plain and natural justice that the individual ownership arising 
from social laws should be held in accordance with pre-existing laws 
and arrangements of nature. As water must flow, and some rule in 
regard to it must be established where land is held under the artificial 
titles created by human law, there can clearly be no other rule at once- 
so equitable and so easy of application as that which enforces natural 
laws. There is no surprise or hardship in this, for each successive own- 
er takes with whatever advantages or inconveniences nature has stamp- 
ed upon his land. We find no error in the instructions of the court 
upon this branch of the case. 

It is urged, however, that this rule, even if justly applicable to agri- 
cultural lands, should not be applied to city lots. Where a city has es- 
tablished an artificial grade, and provided an artificial sewerage, of 
which property owners can reasonably avail themselves, we should 
probably hold it their duty to do so, and so the court substantially in- 
structed in the present case. But this was not the state of facts in 
reference to this property, so far as disclosed by this record. The lots 
lie in a very thinly populated addition tcf the city of Morris, and those 
belonging to plaintiff were used for the purpose of fruit growing, while 
defendant mined coal upon his.^" * * * 

[The judgment was set aside upon other grounds.] 



YEREX V. EINEDER. 

(Supreme Court of INIichigan, 1891. 86 Mich. 24, 48 N. W. 875, 24 Am. St. 

Rep. 113.) 

Morse, J." The plaintifip owns the E. 1/2 of the S. W. 14 of sec-, 
tion 22, township 8 N., of range 12 E., in Lapeer county. The defend- 
ant owns the W. i/o of the same quarter, same section, township, and 
range. It was claimed by plaintifit that the water from the lowlands 
of defendant — a marsh or swamp — was diverted from its natural flow, 
and carried upon the lands of plaintifif, to his damage, by means of a 
ditch dug upon defendant's premises. The action was commenced in 
justice court, where plaintiff had judgment. Upon appeal to the cir- 
cuit court, verdict and judgment passed for the defendant. The plain- 
tiff brings error. 

The testimony showed that the swamp on defendant's land was a 
part or neck of a large swamp, which contained over 300 acres. The 

10 Ace: Farkas v. Towns, 103 Ga. 150, 29 S. E. 700, 68 Am. St. Rep. 88 
(1897) ; Boyd v. Conklin, 54 Mich. 583, 20 N. W. 595, 52 Am. Rep. 831 (1884) ; 
Garland v. Aurin, 103 Tenn. 555, 53 S. W. 940, 48 L. R. A. 862, 76 Am. St. 
Rep. 699 (1899). 

Compare Little Rock & Ft. S. Ry. Co. v. Chapman, 39 Ark. 463, 43 Am. 
Rep. 280 (1882), and Morrissey v. Chicago, B. & Q. R. Co., 38 Neb. 406, 56 
N. W. 946, 57 N. W. 522 (1893). 

11 Part of the opinion is omitted. 



110* RIGHTS INCIDENTAL, TO POSSESSION (Part 1 

natural outlet of this swamp was into L-ittle brook, and from thence 
into Mill creek, away from plaintiff's land. The testimony on the part 
of the plaintiff was to the effect that, although the neck of the swamp 
upon defendant's land came within about 20 rods of his premises, there 
was a ridge between such premises and the swamp, which, in the ab- 
sence of the ditch, prevented any water from the swamp overflowing, 
even in times of high water, upon plaintiff's land. After passing this 
ridge, the land of defendant sloped towards plaintift''s land, which, 
adjoining defendant's premises, was lower than the land of defendant. 
It was conclusively shown that there was never any natural water 
course, with defined banks, running from the swamp to plaintiff's 
land. * * * 

The defendant introduced testimony tending to show that, m a state 
of nature, the water from the neck of this swamp flowed upon plain- 
tiff's land, especially in seasons of high water ; that the defendant built 
a dam at the lowest place in the swamp, where this water ran towards 
plaintiff's land, which confined the waters more closely to the swamp ; 
that the ditch did not quite come up to this dam, and that the water 
which ran into the ditch flowed around the dam, and thus reached the 
ditch ; and that no more water went upon plaintiff's premises from the 
swamp, with the dam and ditch in existence, than flowed there before 
without them ; and some of the witnesses testified that the quantity of 
water reaching plaintiff's land was less than it would have been" had not 
the dam and ditch been constructed. But there was no testimony disput- 
ing the fact that this ditch collected the water, and precipitated it upon 
plaintiff" in such a manner that it prevented a large amount of it from 
soaking into or spreading out over defendant's land, when without the 
ditch the water could not reach plaintift"'s premises, except as it did 
so by spreading out and overflowing defendant's land, and" until by such 
spreading and overflow it reached the land of plaintiff. In other words, 
it is practically undisputed in the record that the digging of this ditch 
carried the water from tliis swamp in a different and unusual manner 
from which it possibly could have reached it naturally, and that the 
water thus thrown upon it damaged his land, while it reclaimed some 
of defendant's. The defendant testified that he made the ditch in the 
first place so that he would be enabled to work the rest of the place to 
cultivate it. "Until I made the ditch, I could not work it. The ditch 
kept the water together, so that I could get a chance to work the rest 
of the land." "I couldn't work it till I cut the ditch, because it would 
overflow the whole place. * * * Question. After that ditch was 
dug, wouldn't it take the water from the overflow of the swamp at 
once onto Yerex's land, and prevent it from overflowing on your land, 
and soaking him? Answer. Yes, sir. Q. And that was the object of 
digging the ditch, wasn't it, on your part ? A. Yes ; that was the ob- 
ject on my part." 

Such being the record, it was error to permit the defendant to show 
that the digging of this ditch was an act of good husbandry. The de- 



Ch. 5) SURFACE WATERS 111 

fendant, as said in Gregory v. Bush, 64 Mich. 42, 31 N. W. 90,' 8 Am. 
St. Rep. 797, could not, "by artificial drains or ditches, collect the wa- 
ters of stagnant pools, sagholes, basins, or ponds upon his premises, 
and cast them in a body upon the proprietor below him, to his injury." 
And he could not reclaim his land by transferring the overflow from 
his land to that of plaintiff's. "He could not collect and concentrate 
such waters, and pour them in an artificial ditch, in unusual quanti- 
ties, upon his adjacent proprietor." Id., 64 Mich. 44, 31 N. W. 94, 8 
Am. St. Rep. 797. What the defendant did, by his own showing, was 
to transfer his wet and untillable land to his neighbor by the digging of 
an artificial ditch, and carrying the water at once upon plaintiff's land, 
so that it would not overflow or percolate his own soil. This he had no 
right to do under any circumstances, and whether or not it was good 
husbandry upon his part to do so was entirely immaterial. We are at 
a loss to understand how the jury, under the evidence and charge of 
the court, which was mainly correct, could have found for the defend- 
ant, unless they were prejudiced by the admission of this testimony, 
which had no business in the case. 

The court, we also think, should have given the plaintiff's second 
request, as follows : "(2) From the undisputed evidence in this case, 
the fact has been established that, by means of the dead furrow and 
ditch constructed by defendant, the water has been prevented from 
percolating through and settling in the lowlands of defendant next to 
the swamp, and has been caused to flow through the dead furrow and 
ditch onto plaintiff's lands in quantities at times greater than it would 
have flowed on plaintift''s lands if there were no ditch oi* dead furrow, 
and that said plaintiff' was damaged thereby, and your verdict, there- 
fore, will be for the plaintiff." 

The judgment is reversed, and a new trial granted, with costs of this 
court to plaintiff. The other justices concurred." jpr. '■-. \a^. 



MANTEUFEL v. WETZEL. 

(Supreme Court of Wisconsin, 1907. 133 Wis. 619, 114 N. W. 91, 19 L. R. A. 

[N. S.] 167.) 

Timlin, J.^^ Only one question is necessary to be considered. It 
is established by the findings that the parties own adjoining lands. 
There is on the defendant's land and about 700 feet west of the plain- 
tiff's land a sink hole, or depression, which in wet seasons and before 
the construction of the ancient ditch contained about three acres of 

i2Acc.: Livingston v. McDonald, 21 Iowa, 160, 89 Am. Dec. 563 (1866); 
Miller v. Laubach, 47 Pa. 154, 86 Am. Dec. 521 (1864). A fortiori is such 
ttirowins of£ of surface water actionable when there is no natural drainage 
to the plaintiff's land. Schuster v. Albrecht, 9S Wis. 241, 73 N. W. 990, 67 
Am. St. Rep. 804 (1898). 

13 Part of the opinion is omitted. 



/ ^f (i^e 7^17 



11125 . RIGHTS INCIDENTAL TO POSSESSION (Part 1 

water of the average depth of li/^ feet, and between this sink hole or 
depression and the land of the plaintiff there is upon the land of the de- 
fendant at a point distant from the common boundary an elevation of 
about three feet. More than 20 years prior to the commencement 
of this action the predecessor in title of the defendant cut through this 
elevation by a ditch, so that the surface water which formerly collected 
in such depression passed through said ditch and to a point upon de- 
fendant's land about 150 feet west of the common boundary, where 
it spread over defendant's land and escaped by the natural course of 
surface water on to the land of the plaintiff. The said sink hole or 
depression is a natural basin or reservoir without natural outlet which 
is capable of holding, and which, in fact, did collect, receive, and hold, 
large quantities of surface water which fell and gathered upon lands 
of the defendant and adjacent land in the vicinity of said depression, 
and the surface water so collected remained standing in said depression 
until the same disappeared by evaporation, absorption by the earth, or 
was removed therefrom by means of said ancient ditch or artificial out- 
let to the point aforesaid upon the defendant's land. In May, 1904, 
the defendant, following the natural course of the surface water. 
excavated on his own land a shallow ditch from the termination of said 
ancient ditch to the common boundary between plaintiff and defendant, 
and, as a direct result thereof, the surface water from said depression 
has passed through the ancient ditch and through the extension there- 
of just mentioned to the plaintift''s land, and has been deposited on the 
plaintiff's land in greater quantities and with much greater rapidity 
and force tharr before, and has thereby rendered about four or five acres 
of the plaintiff's land too wet for ordinary use as agricultural land, and 
of less value than formerly, and in the year 1904 caused a washout 
upon the lands of the plaintiff of about 45 feet in length by 7 feet in 
width, and 3 feet in depth. Upon these facts, the court below held 
that the ancient ditch extending from the sink hole or depression on 
defendant's land to a point on defendant's land about 150 feet from 
the common boundary should be allowed to be and remain as it was, 
apparently upon the ground that this outlet had been maintained more 
than 20 years prior to the commencement of the action. That ruling 
is not excepted to, and is not before us for review. But the court de- 
creed on these facts that the plaintiff recover $100, and that the de- 
fendant be ordered to close and ffll up the extension of ditch above de- 
scribed made by him in May, 1904, and thereafter to keep, the same 
closed. 

We have considered the cases, * * * and do here determine that 
where the upper proprietor does no more than collect in a ditch, which 
ditch follows the course of the usual flow of surface water, the sur- 
face water which formerly took the same course toward the land of the 
lower adjacent proprietor, and causes to pass through this ditch the 
surface water which formerly took the same course but spread out over 
the surface, he has committed no actionable legal wrong of which the 



Ch. O) SURFACE WATERS 113 

lower proprietor can complain, or upon which such lower proprietor 
can maintain an action. In other words, causing surface water to flow 
in its natural direction through a ditch on one's own land instead of 
over the surface or by percolation as formerly, where no new water- 
shed is tapped by said ditch and no addition to the former volume of 
surface water is caused thereby, except the mere carrying in a ditch 
what formerly reached the same point on defendant's land over a wider 
surface by percolation through the soil or by 'flowing over such wider 
surface, is not, when not negligently done, a wrongful or unlawful act. 
It follows that, upon the findings of fact of the court below, the con- 
clusion of law should have been that the defendant was entitled to judg- 
ment dismissing, the complaint and judgment accordingly. 

The judgment of the circuit court is reversed, and the cause re- 
manded, with directions to enter judgment for the defendant dismiss- 
ing the plaintiff's complaint.^* 



i^Acc: Hushes v. Anderson, 68 Ala. 280, 44 Am. Kep. 147 (1880). See 
Jessup V. Bamford, 66 N. J. Law, 641. 51 Atl. 147, 58 L. R. A. 329, 88 Am. St. 
Rep. 502 (1901). 

Peck and Herrington owned adjacent farms. There was a natural depres- 
sion leading through Peck's farm across Herrington's farm to a river. Sur- 
face water and the spring overflow from three small surface water ponds 
on Peck's farm worked off down this depression. Peck put in a loose tile 
drain from these ponds all the way down the depression to the boundary 
of Herrington's farm. As a result, the ponds were drained and the amount 
of water flowing through the depression on Herrington's farm was greatly 
increased. The court held that Herrington had no cause of action against 
Peck, saying: "It may be true that the owner of a tract of land would have 
no right to drain a lake or large body of water upon the land of an adjoin- 
ing owner, and thus destroy it; but such is not this case. These small 
ponds rendered much of the land of Peck unfit for cultivation, and good 
husbandry required that they should be drained, and so long as the water 
was discharged in the regular channel leading from the land of Peck to that 
of Herrington, he has no legal ground of complaint. The natural flow of 
the surface water was not changed by the drainage. It may have been in- 
creased, but such increase of water was a burden which the location of the 
two tracts of land demanded should be borne by the owner of the lower 
tract of land. As was said in Kauffman v. Griesemer, supra: 'Because 
water is descendible by nature, the owner of a dominant or superior herit- 
age has an easement in the servient or inferior tenement for the discharge 
of all waters which by nature rise in, or flow or fall upon, the superior.' " 
Peck V. Herrington, 109 111. 611, 620. 50 Am. Rep. 627 (1S84). Ace: Todd 
V. York County, 72 Neb. 207. 100 N. W. 299. 66 L. R. A. 561 (1904). Com- 
pare: Jacobson v. Van Boening. 48 Neb. 80. 66 N. W. 993, 32 L. R. A. 229. 
58 Am. St. Rep. 684 (1896) ; Waffle v. New York Cent. R. R., 53 N. Y. 11, 13 
Am. Rep. 467 (1873) ; Butler v. Peck, 16 Ohio St. 334, 88 Am. Dec. 452 (1865). 

A., B., and C. owned three adjoining pieces of land; the general slope anc' 
the run of the surface water was from A. to C. C. constructed a ditch on 
his land to carry off the surface water. As a result, the course of the 
water over A.'s land was so accelerated that it damaged his land by washing 
away the soil. Held, admitting the rule to be that the lower owner is un- 
der an obligation to receive the natural flow from the upper, A. has no cause 
of action against C. Pohlman v. Chicago. M. & St. P. R. R., 131' Iowa, 89, 
107 N; W. 1025, 6 L. R. A. (N. S.) 146 (1900). 

A surface water pond of 25 to 40 acres with a maximum depth of 3 
feet stood partly on the land of A. and partly on that of B. The pond had 
BiG.RiariTS — S 



114 RIGHTS INCIDENTAL TO POSSESSION (Part I 

BOWLSBY V. SPEER. 

(Supreme Court of New Jersey, 1S65. 31 N. J. Law, 351, 86 Am. Dec. 21t).) 

This action was brought for diverting a water course from its bed 
into the lands of the plaintiff. The circumstances as they appeared on 
the trial were these, viz.,: There was a pond on the side of a hill, and 
below this pond was the stable lot of the defendant, and still lower 
down was the lot and dwelling house of the plaintiff. The pond was 
not fed by a spring nor from any subterranean source, but was formed 
altogether from rains and melting snows, and occasionally it was en- 
tirely dry — never ran over except in times of heavy showers, and then 
with the other surface water falling on the contiguous land, it passed 
down in a slight hollow or depression over the premises of the defend- 
ant, and so on to other lands below them. This water, in its natural 
condition, did not go upon tlie lot of the plaintiff'. The defendant, a 
short time before the commencement of this suit, built a stable on his 
lot, and located it over this hollow, through which the water before 
mentioned was discharged, and this obstacle turned the course of the 
water, so that it ran on to the lot and into the cellar of the. dwelling 
house of tlie plaintiff. For the damage thus occasioned this suit is 
brought. The questions involved came before this court on a motion 
for a new trial. 

BeaslEy, C. J.^^ It is not one of the legal rights appertaining to 
land that the water falling upon it from the clouds shall be discharg- 
ed over land contiguous to it; and this is the law, no matter what the 
conformation of the face of the, country may be, and altogether with- 
out reference to the fact, that in the natural condition of things, the sur- 
face water would escape in any given direction." The consequence is, 
therefore, that there is no such thing known to the law as a right to 
any particular flow of surface water, jure naturae. The owner of land 
may, at his pleasure, withhold the water falling on his property from 
passing in its natural course on to that of his neighbor, and in the same 
manner may prevent the water falling on the land of the latter from 
coming on to his own. In a word, neither the right to discharge nor 
to receive the surface water, can have any legal existence except from 
a grant, express or implied. The wisdom of this doctrine will be ap- 



' no natural outlet. A few rods from the pond and on A.'s land beg;an a natu- 
ral depression, which continued over C.'s land to a creek. A. dug a ditch 
from the pond to the depression, thereby discharging all the water over 
C.'s land and rendering the depression untillable. The lowest point in the 
bank of the pond was on a side other than that where the ditch was cut. 
Held, C. has no riijht of action against A. Aldritt v. Fleischauer, 74 Neb. 
66. 103 N. W. 1084, 70 L. R. A. 301 (1905). Ace: Sheehan v. Flynn, 59 
Minn. 436, 61 N. W. 462, 26 L. R. A. 632 (1894). 
15 Part of the opinion is omitted. 



Ch. 5) SURFACE WATERS 115 

parent to all minds upon very little reflection. If the right to run in 
its natural channels was annexed to surface water as a legal incident, 
the difficulties would be infinite indeed ; unless the land should be left 
idle it would be impossible to enforce the right in its rigor; for it is 
obvious every house that is built and every furrow that is made .in a 
field, is a disturbance of such right. If such a doctrine prevailed, every 
acclivity would be and remain a water shed, and most low ground be- 
come reservoirs. It is certain that any other doctrine but that which 
the law has adopted, would be altogether impracticable. 

This subject, until a comparatively recent date, does not appear to 
have received the attention of the courts. No ancient authority can, 
therefore, perhaps be produced, but the topic has of late been discussed 
both by the Barons of the Exchequer and by the courts of Massachu- 
setts, and the doctrine placed upon a footing which, as it seems to me, 
should receive the assent of all persons. Upon an examination of these 
cases, it will be found that the conclusion is reached that no right of 
any kind can be claimed in the mere flow of surface water, and that 
neither its retention, diversion, repulsion, or altered transmission is 
an actionable injury, even though damage ensues. How far it may be 
necessary to modify this general proposition in cases in which, in a 
hilly region, from the natural formation of the surface of the ground, 
large quantities of water, in times of excessive rains or from the melt- 
ing of heavy snows, are forced to seek a channel through gorges or 
narrow valleys, will probably require consideration when the facts of 
the case shall present the question. It would seem that such anomalous 
cases might reasonably be regarded as forming exceptions to the gen- 
eral rule. * * * 

Applying, then, the doctrine above indicated to the facts of the pres- 
ent case, the conclusion must be that upon the proof made at the trial, 
the plaintiff was not entitled to recover. The water diverted by the 
building of the defendant was altogether surface water, and he, there- 
fore, had a legal right to obstruct and to turn aside its course. If the 
plaintiff' has suffered from such act it is damnum absque injuria. Nor 
is her case helped by the circumstance that a portion of the water in 
question came from the pond which was proved to exist, because no 
more waste water was discharged by reason of this reversion than there 
would have been if it had not been there. It was merely the rain wa- 
ter flowing from surface of the pond, as it would have done if the 
superficies had been land instead of water. Nor does it seem to me 
that there is any significance in the fact, that there was an appreciable 
channel for this surface water over the land of the defendant and into 
which it naturally ran. " On every hill side numbers of such small con- 
duits can be found, but it would be highly unreasonable to attach to 
them all the legal qualities of water courses. I am not willing to adopt 
a doctrine which would be accompanied with so much mischief. 

In my opinion the existence of a water course was not proved in the 



116 RIGHTS INCIDENTAL TO POSSESSION \Tart 1 

present case, and as this is the ground work of the plaintiffs action, I 
think a new trial should be granted. 
Rule made absolute?^* 



HURDMAN V. NORTH EASTERN RY. CO. 

(Court of Appeal, 187S. L. R. 3 C. P. D. 16S.) 

Appeal from the judgment of Manisty, J., in favour of the plaintiff 
on demurrer to a statement of claim. 

Claim : At the time of the damage hereafter mentioned the plaintiff 
was, and is still, possessed of a house, No. 16, Lodge Terrace, Sunder- 
land. 

2. The defendants then were, and still are, possessed of a certain 
close of land adjoining the house of the plaintiff. 

3. The defendants placed and deposited in and upon the close of the 
defendants, and upon and against a wall of the defendants which ad- 
joins and abuts against the house of the plaintiff, large quantities of 
soil, clay, limestone, and -other refuse, close to and adjoining the house 
of the plaintiff", and thereby raised the surface of the defendants' land 
above the level of the land upon which the plaintiff's house was built. 

4. The rain which fell upon the soil, clay, limestone, and other refuse 
so placed as aforesaid oozed and percolated through the wall of the de- 
fendants into the house of the plaintiff', and the plaintift''s house there- 
by became wet, damp, unwholesome and unhealthy, and less commodi- 
ous -for habitation. 

5. By reason of the acts of the defendants the walls of the house of 
the plaintiff became and were very much injured, and the paper upon 
the walls has been destroyed. 

6. In the alternative the plaintiff alleges that the defendants negli- 
gently and improperly placed and deposited the soil, clay, limestone, 
and refuse upon the defendants' land, and that the rain water falling 
thereon oozed and percolated through and into the plaintiff's house, 
whereby the plaintiff's house was damaged as before mentioned. 

7. In the alternative the plaintiff' alleges that the defendants were 
guilty of negligence in this, that the wall of the defendants against 
which the defendants so placed the soil, clay, limestone, and refuse was 
not sufficiently and properly constructed and built so as to prevent the 

isAcc: Gannon v. Hargadon, 10 Allen (Mass.) 106, 87 Am. Dec. 625 (1865); 
Contra: (Semble) Adams v. Walker, 34 Conn. 466, 91 Am. Dec. 742 (1867) ; 
Rhoads v. Davidlieiser, 133 Pa. 226, 19 Atl. 400, 19 Am. St. Rep. 630 (1890). 
See Mayor v. Sikes, 94 Ga. 30, 20 S. E. 257, 26 L. R. A. 653, 47 Am. St. Rep. 
132 (1894). 

Compare: Cedar Falls v. Hansen, 104 Iowa, 1S9, 73 N. W. 585, 65 Am. 
St. Rep. 439 (1897), and Waverly v. Page, 105 Iowa, 225, 74 N. W. 938. 40 
L. R. A. 405 (1898). 



Ch. 5) SURFACE WATERS 117 

water from falling upon the soil, clay, limestone, and refuse from 
oozing and percolating through the wall and into the plaintiff's house, 
and that the defendants were guilty of negligence in placing the soil, 
clay, limestone, and refuse against the wall being so insufficient to pre- 
vent the water falling upon the soil, clay, limestone, and refuse from 
oozitig and percolating through and into the plaintiff's house, whereby 
the plaintiff's house was damaged. 

Demurrer to the claim, on the ground that the acts, matters, and 
things alleged to have been done by the defendants do not give rise to 
any right of action on the part of the plaintiff. 

The judgment of the Court (BramwiJll, Bri^tt, and Cotton, L. 
JJ.) was delivered by 

Cotton, L. J. In this case the plaintiff has brought an action for 
injury alleged to have been caused to his house, which abuts on a wall 
of the defendants, by certain acts done by the defendants on their own 
land. The question is raised on demurrer to the statement of claim, 
and the question therefore is whether that alleges a good cause of ac- 
tion. [The Lord Justice read the statement of claim, except paragraph 
7.] It is unnecessary to read the seventh paragraph, because it is bas- 
ed on a supposed obligation of the railway company to make their wall 
water-tight, but in our opinion there is no such obligation, and if the 
statements contained in the preceding paragraphs do not shew a cause 
of action, the statements of the seventh paragraph do not enable the 
plaintiff to sustain this action. 

For the purposes of our decision, we must assume that the plaintiff' 
has sustained substantial damage, and we must construe the statement 
as alleginglhaFthe surface of The defendants' land has been raised by 
earth and rubbish placed thereon, and that the consequence of this is 
that rain-water falling on the defendants' land has made its way 
through defendants' wall into the house of the plaintiff', and has caus- 
ed the injury complained of. The question is, are the defendants, ad- 
mitting this statement to be true, liable to the plaintiff'? and we are of 
opinion that they are. The heap or mound on the defendants' land 
must, in ouFopimori, be considered as an artifi cial work. Every oc- 
cupier of land is entitled to the reasonable enjoyment thereof. This 
is a natu'ral right of property, and it is well established that an occupier 
of land may protect himself by action against any one who allows any 
filth or any other noxious thing produced by him on his own land to 
interferje with this enjoyment. We are further of opinion that, sub- 
ject to a qualification to be hereafter mentioned, if any one by arti- 
ficial erection on his own land causes water, even though arising from 
natural rainfall only, to "pass into his neighbor's land, and thus sub- 
stantially to interfere with his enjoyment, he will be liable to an action 
at tlie suit of him who is so injured, and this view agrees with the opinr 
ion expressed by the Master of the Rolls in the case of Broder v. Sail- 
lard, 2 Ch. D. at page 700. I have limited this statement of liability to 



118 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

liability for allowing things in themselves offensive to pass into a neigh- 
bour's property, and for causing by artificial means things in them- 
selves inoffensive to pass into a neighbour's property to the prejudice 
of his enjoyment thereof, because there are many things which whexi 
done on a man's own land (as building so as to interfere with the pros- 
pect, or so as to obstrvict lights not ancient) are not actionable, even 
though they interfere with a neighbour's enjoyment of his property. 

But it is urged that this is at variance with the decision that if, in 
consequence of a mine-owner on the rise working out his minerals, wa- 
ter comes by natural gravitation into the mines of the owner on the 
deep, the latter mine-owner cannot maintain any action for the loss 
which he thereby sustained. But excavating and raising the minerals 
is considered the natural use of mineral land, and these decisions are 
referable to this principle, that the owner of land holds his right to the 
enjoyment thereof, subject to such annoyance as is the consequence of 
what is called the natural user by his neighbour of his land, and that 
when an interference with this enjoyment by something in the nature 
of nuisance (as distinguished from an interruption or disturbance of 
an easement or right of property in ancient lights, or the support for 
the surface to which every owner of property is entitled), is the cause 
of complaint, no action can be maintained if this is the result of the 
natural user by a neighbour of his land. That this is the principle of 
these cases appears from the case of Wilson v. Waddell, 2 App. Cas. 
95, and from what is said by the Lord Chancellor in Fletcher v. Ry- 
lands. Law Rep. 3 H. L. C. 330. Moreover, the cases referred to have 
laid down that a mine-owner is exempt from liability, for water which 
in consequence of his works flows by gravitation into an adjoining 
mine, only if his works are carried on with skill and in the usual man- 
ner; and in the present case it is stated that the defendants have con- 
ducted this operation negligently and improperly. The decisions, there- 
fore, as regards the rights of adjoining mine-owners, do not enable the 
defendants to discharge themselves from liability. 

It was also argued that a land-owner, who by operations on his own 
land drains the water percolating underground in the property of his 
neighbour, is not liable to an action by the man whose land is thus de- 
prived of its natural moisture, and this it was argued was inconsistent 
with a judgment for the plaintiff on a statement alleging as a cause of 
action an alteration in the percolation of water. It is sufficient to say 
that no one can maintain an action unless there is some injury to some- 
thing to which the law recognizes his title, and the law does not rec- 
ognize any title in a land-owner to water percolating through his prop- 
erty underground and in no definite channel. • 

We are of opinion that the maxim "Sic utere tuo ut alienum non 
laedas" applies to and governs the present case, and that as the plain- 
tiff by his statement of claim alleges that the defendants have by ar- 
tificial erections on their land caused water to flow into the plaintift''s 



Ch. 5) SURFACE WATERS 119 

land, in a manner in whicii it would not but for such erection have 
done, the defendants are answerable for the injury caused thereby to 
the plaintiff. 

Judgment affirmed. ^^ 



FITZPATRICK v. WELCH. 

(Supreme Judicial Court of Massachusetts, 1S99. 174 Mass. 486, 55 N. E. 

178, 48 L. R. A. 278.) 

HoLME^s, J. The plaintiff's case was that water flowing from the 
roof of the defendant's stable into a gutter along: the side of the stable 
was discharged upon the plaintiff's land in large quantities through an 
apertur e in t he gutter, and thus did the damage for which suit is 
brought. If these were the facts, a ruling that the defendant was 
bound to use only ordinary care properly was refused. 

One who arranges a roof and gutter in such a way that the first will 
collect water, and the second manifestly will discharge it upon a neigh- 
bor's land unless prevented, has notice that lie threatens harm to his' 
neighbor of a kind which the law, in its adjustment of their conflicting 
interests, d^s_not permit him knowingly to inflict. Bates v. Inhabit- 
ants of Westborough, 151 Mass. 174, 181, 23 N. E. 1070, 7 L. R. A. 
156. The danger is so manifest, so constant, and so great that al- 
though, no doubt, a possibility of harm does not always require more 
than the exercise of ordinary care to prevent it (Quinn v. Crimmings, 
171 Mass. 255, 50 N. E. 624, 42 L. R. A. 101, 68 Am. St. Rep. 420), 
and although in some states only ordinary care is required in cases like 
this (Underwood v. Waldron, 33 Mich. 232, 238, 239, Garland v. 
Towne, 55 N. H. 55, 20 Am. Rep. 164), the requirement here and else- 
where is higher, and sometimes is stated as absolute, to prevent at one's 
peril the harm from coming to pass (Shipley v. Fifty Associates, 106 
Mass. 194, 199, 8 Am. Rep. 318; Jutte v. Hughes, 67 N. Y. 267, 272). 

If the defendant is liable, she is liable for damage to artificial struc- 
tures _upon the j)laintiff's land (Copper v. Dolvin, 68 Iowa, 757, 28 N. 
W. 59, 56 Am^ Rep. 872 ; Martin v. Simpson, 6 Allen, 102, 105 ; and 
cases below) ; and, if the discharge of water caused the wall to fall, she 
is liable for it, whet her the wall was well constructed or not. The re- 
quest which was refused would have exonerated the defendant if the 
wall was ill constructed, even though the bad construction did not con- 
tribute to the damage. It is not necessary to consider this question 
more nicely, as it appears that full instructions were given, and the 



17 Ace: Rainwater tlirown on adjacent premises from houses. Conner v. 
Woodfill, 126 Ind. 85, 25 N. E. 876, 22 Am. St. Rep. 568 (1890); Beach v. 
Gaylord. 43 Minn. 476, 45 N. W. 1095 (1890); Bellows v. Sackett, 15 Barb. 
(N. Y.) 96 (1853). 






V t^^rt^ v , ^^ 



120 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

only exception is to the refusal of the defendant's request. Under- 
wood V. Waldron, 33 Mich. 232, 236, 237; Gould v. McKenna, 86 Pa. 
297, 27 Am. Rep. 705. 
Exceptions overruled.^* 

18 See Davis v. Niagara Falls Tower Co., 171 N. T. 336, 64 N. E. 4, 57 L. 
R. A. 54.5, S9 Am. St. Rep. 817 (1902). 

The wall of A.'s house was built on loose soil and in a careless fashion. 
B. negligently allowed the water from his roof to fall on A.'s land, to the 
damage of A.'s wall. Held, A.'s negligence in building, assuming it to be 
one of the causes of the destruction of the wall, will not bar an action 
against B. Underwood v. Waldron, 33 Mich. 232 (1876). Compare Copper v. 
Dolvin. 68 Iowa, 757, 28 N. W. 59, 56 Am. Rep. 872 (1886) ; Gould v. McKen- 
na, 86 Pa. 297, 27 Am. Rep. 705 (1878). 

. See, also, on the question of how far the defendant's liability is affected 
by his negligence, Little Rock & Ft. S. Ry. Co. v. Chapman, 39 Ark. 463, 4;> 
Am. Rep. 280 (1882); Missouri Pac. Ry. Co. v. Keys, 55 Kan. 205, 40 Pac. 
275, 49 Am. St. Rep. 249 (189.5), ante, p. 103; Morrissey v. Chicago, B. & Q. 
R. R., 38 Neb. 406, 56 N. W. 946, 57 N. W. 522 (1893) ; Abbott v. Kansas City, 
St. J. & C. B. Ry. Co., 83 Mo. 271, 53 Am. Rep. 581 (1884) ante, p. 103 ; Craw- 
ford V. Rambo, 44 Ohio St. 279, 7 K E. 429 (1886). 



y/ 



Ch. 6) UNDERGROUND WATERS 121 



CHAPTER VI 
UNDERGROUND WATERS 

ACTON V. BLUNDELL. 

(Court of Exchequer Chamber, 1843. 12 Mees. & W. 324.) 

TiNDAL, C. J.^ The question raised before us on this bill of ex- 
ceptions is one of equal novelty and importance. The plaintiff below, 
who is also the plaintiff in error, in his action on the case, declared 
in the first count for the disturbance of his right to the water of certain 
und ergroun d sp rings, streams, and water courses, which, as he alleg- 
ed, ought of right to run, flow, and percolate into the closes of the plain- 
tiff, for supplying certain mills with water; and in the second count 
for the draining off the water of a certain spring or well of water in 
a certain close of the plaintiff*, by reason of the possession of which 
close, as he alleged, he ought of right to have the use, benefit, and en- 
joyment of the water of the said spring or well for the convenient use 
of his close. The defendants by their pleas traversed the rights in the 
manner alleged in those counts respectively. 

At the trial the plaintiff proved, that, within twenty, years before 
the commencement of the suit, viz. in the latter end of 1821, a former 
owner and occupier of certain land and a cotton mill, now belonging to 
the plaintiff, had su nk_and madejn. juchjand a well for raising^ water 
for the working of the mill; and that the defendants, in the year 1837. 
had sunk a coal pit in the land of one of the defendants at about three- 
quarters of a mile from the plaintiff's well, and about three years after 
sunk a second at a somewhat less distance; the consequence of which 
sinking was, that, by the first, the supply of water was considerably di- 
minished, and by the second was rendered altogether insufficient for 
the purpose's of the mill. The learned Judge before whom the cause 
was tried directed the jury, that, if the defendants had proceeded and 
acted in the usual and proper manner on the land, for the purpose of 
working and winning a coal mine therein, th£y_iiiight_lawfuliy do so, 
and that the plaintiff's evidence was not sufficient to support the alle- 
gations in his declaration as traversed by the second and third pleas. 
Against this direction of the Judge the counsel for the plaintiff tender- 
ed the bill of exceptions which has been argued before us. And after 
hearing such argument, and consideration of the case, we are of opin- 
ion that the direction of the learned Judge was correct in point of law. 

The question argued before us has been in substance this: Whether 

1 Part of the opinion is omitted. 



/V/ c^ut iii^ 



122 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

the right to the enjoyment of an underground spring, or of a well sup- 
plied by such underground spring, is governed by the same rule of law 
as that which applies to, and regulates, a watercourse flowing on the 
surface. * * * 

The ground and origin of the law which governs streams running in 
their natural course would seem to be this, that the right enjoyed by 
the several proprietors of the lands over which they flow is, and always 
has been, public and notorious; that fhe enjoyment has been long con- 
tinued — in ordinary cases, indeed, time out of mind — and uninterrupt- 
ed; each man knowing what he receives and what has always been 
received from the higher lands, and what he transmits and what has al- 
ways been transmitted to the lower. The rule, therefore, either as- 
sumes for its foundation the impHed assent and agreement of the prg- 
prietors of the difl:"erent lands from all ages, or perhaps it may be con- 
sidered as a rule of positive law, (which would seem to be the opinion 
of Fleta and of Blackstone,) the origin of which is lost by the progress 
of time ; or it may not be unfitly treated, as laid down by Mr. Justice 
Story, in his judgment in the case of Tyler v. Wilkinson, in the courts 
of the United States, 4 Mason's (American) Reports, 401, Fed. Cas. 
No. 14,312, as "an incident to the land; and that whoever seeks to 
found an exclusive use must establish a rightful appropriation in some 
manner known and admitted by the law." But in the case of a well 
sunk by a proprietor in his own land, the water which feeds it from a 
neighbouring soil does not flow openly in the sight of the neighbour- 
ing proprietor, but through the hidden veins of the earth beneath its 
surface: no man can tell what changes these underground sources 
have undergone in the progress of time : it may well be, that it is only 
yesterday's date, that they first took the course and direction which en- 
abled them to supply the well: again, no proprietor knows what por- 
tion of water is taken from beneath his own' soil : how much he gives 
originally, or how much he transmits only, or how much he receives ; 
on the contrary, until the well is sunk, and the water collected by drain- 
ing into it, there cannot properly be said, with reference to the well, 
to be any flow of water at all. In the case, therefore, of the well, there 
can be no ground for implying any mutual consent or agree ment , for 
ages past, between the owners of the several lands beneath which the 
underground springs may exist, which is one of the foundations on 
which the law as to running streams is supposed to be built ; nor, for 
the same reason, can any trace of a positive law be inferred from long- 
continued acquiescence and submission, whilst the very existence of the 
underground springs or of the well may be unknown to the proprietors 
of the soil. 

But the difference between the two cases with respect to the conse- 
quences, if the same law is to be applied to both, is still more appar- 
ent. In the case of the running stream, the owner of the soil merely 
transmits the water over its surface: he receives as much from his 
higher neighbour as he sends down to his neighbour below : he is nei- 



Ch. 6) UNDERGROUND WATERS 123 

ther better nor worse: the level of the water remains the same. But 
if the man who sinks the well in his own land can acquire by that act an 
absolute and indefeasible right to the water that collects in it, he has 



ijie p ower of preventing his neighbour from making any use of the 
s pring in his own soil which shall interfere with the enjoyment of the 
well . He has the power, still further, of debarring the owner of the 
land in which the spring is first found, or through which it is trans- 
mitted, from draining his land for the proper cultivation of the soil: 
and thus, by an act which is voluntary on his part, and which may be 
entirely unsuspected by his neighbour, he may impose on such neigh- 
bour the necessity of bearing a heavy expense, if the latter has erected 
machinery for the purposes of mining, and discovers, when too late, 
that the appropriation of the water has already been made. Further, 
the advantage on one side, and the detriment to the other, may bear no 
proportion. The well may be sunk to supply a cottage, or a drinking 
place for cattle ; whilst the owner of the adjoining land may be pre- 
vented from winning metals and minerals of inestimable value. And, 
lastly, there is no limit of space within which the claim of right to an 
underground spring can be confined : in the present case, the nearest 
coal pit is at the distance of half a mile from the well: it is obvious 
the law must equally apply if there is an interval of many miles. 

Considering, therefore, the state of circumstances upon which the 
law is grounded in the one case to be entirely dissimilar from those 
whic h exist in the other; and that the application of the same rule to 
botE wouTd^lead, in many cases, to consequences at once unreasonable 
and unjust; we feel ourselves warranted in holding, upon principle, 
that the case now under discussion does not fall wjthin the rule which 
obtains as to surface strea.ms, nor is it to be governed by analogy there- 
with. 

No case has been cited on either side bearing directly on the subject 
in dispute. * * * 

The Roman law forms no rule, binding in itself, upon the subjects of 
these realms ; but, in deciding a case upon principle, where no direct 
authority can be cited from our books, it affords no small evidence of 
the soundness of the conclusion at which we have arrived, if it proves 
to be supported by that law, the fruit of the researches of the most 
learned men, the collective wisdom of ages, and the groundwork of the 
municipal law of most of the countries in Europe. 

The authority of one at least of the learned Roman lawyers appears 
decisive upon the point in favour of the defendants ; of some others 
the opinion is expressed with more obscurity. In the Digest, lib. 39, 
tit. 3, De sequa et aquae pluvise arcandae, s. 12, "Denique Marcellus 
scribit. Cum eo, qui in suo fodiens, vicini fontem avertit, nihil posse 
agi : nee de dolo actionem, et sane non debet habere ; si non animo 
vicini nocendi, sed suum agrum meliorem faciendi, id fecit." 

It is scarcely necessary to say, that we intimate no opinion whatever 
as to what might be the rule of law, if there had been an uninterrupt- 



124 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

ed user of the right for more than the last twenty years f but, confin- 
ing ourselves strictly to the facts stated in the bill of exceptions, we 
think the present case, for the reasons above given, is not to be govern- 
ed by the law which applies to rivers and flowing streams, but that it 
rather falls within that principle, which gives to the owner ofthe soil 
all t hat lies beneath his surface; that the land immediately below Is 
his property, whether it is solid rock, or porous ground, or venous 
earth, or part soil, part water ; that the person who owns the surface 
may dig therein, and apply all that is there found to his own purposes 
at his free will and pleasure ; and that if, in the exercise of such right, 
he intej^-cepts or drains off the water collected from underground 
springs in his neighbour's well, this inconvenience to his neighbour falls 
within the description of damnum absque injuria, which cannot become 
the ground of an action. 

We think, therefore, the direction given by the learned judge at the* 
trial was correct, and that the judgment already given for the def end- 
ants in the Court below must be affirmed. 

Judgment affirmed.' 

2 "Tlie lots of the plaintiff and defendant adjoin each other. And the 
case finds, that the plaintiff's cellar was dug fourteen years ago, and water 
was then found, and in about two years afterwards an excavation was made 
in the earth, in the place where the well now stands, about three feet deep, 
and a barrel was inserted, and the water rose to the surface. Afterwards 
the defendant dug to obtain water in his own soil, and in a place where It 
was convenient for him, near to the well of the plaintiff, and after the de- 
fendant's well was dug, the water_ceased to flow into the plaintiff's well, so 
copiously as it did before. It is for this alleged injury that the action is 
brought. Then it is to be considered, whether the plaintiff has proved any 
such easement, as she claims to have in the soil of the defendant. She does 
not pretend, that there has been any written grant from the defendant. She 
relies upon the use, as evidence from which a jury should presume a ^rant^ 
and there is no other circumstance to be relied upon. But by our law, the 
right of the plaintiff to control the operations of the defendant on his own 
soil must, in the absence of a written agreement, be made out by an ad- 
verse possession continued peaceably under a claim of right for twenty years' 
at the least. In the present case such proof is wanting. There is not evi- 
dence of any adverse use or possession at all. For the defendant had no 
means of knowing that the plaintiff's well was supplied by springs in "lERe 
defendant's soil, until the defendant dug for water there for his own use." 
Greenleaf v. Francis, 18 Pick. (Mass.) 117, 122 (1836). See, also, Wheatley 
V. Baugh, 25 Pa. 528, G4 Am. Dec. 721 (1855). 

3 Ace. : Wheatley v. Baugh, ante, p. 124. 

A. had a well on his own land, whence he drew water for domestic and 
other purposes ; B. dug a well on his land near to A.'s well to get water for 
his domestic purposes. Thereafter, and in consequence of B.'s digging, the 
water in A.'s well was insufficient for his pui-poses. Held, A. has no cause 
of action against B. Roath v. Driscoll, 20 Conn. 533, 52 Am. Dec. 352 
(1850). See, also, Bloodgood v. Ayers, 108 N. Y. 400, 15 N. E. 433, 2 Am. 
St. Rep. 443 (1887) ; Frazier v. Brown, 12 Ohio St. 294 (1801). 

A. and B. were adjacent landowners. A well on A.'s land was supplied 
by percolating water from B.'s land. B. dug a ditch on his own land, s<» 
as to prevent the percolation to A.'s well. An instruction was given thai 
if the jury found that the acts of B. prevented the usual and natural fLow 
of the water underground to A.'s soil, and that these acts were done by B. 
solely with the purpose of injuring A. and depriving him of water, and not 
with any purpose of usefulness to himself, B. would be liable to A. for 



Ch. 6) UNDERGROUND WATERS 125 



MEEKER V. CITY OF EAST ORANGE. 

(Court of Eirors and Appeals of ^\'ew Jersey, 1909. 77 N. J. Law. 6L'o, 74 
Atl. 379, 25 L. R. A. [N. S.] 465, 134 Am. St. Rep. 798.) 

PiTNKY, Ch.* Plaintiff brought two actions in one of the district 
courts of the city of Newark to recover damages for the diversion 
by the defendant of percolating underground water. In each case the 
'district court rendered judgment in favor of the defendant, and 
upon appeal to the Supreme Court the judgments were affirmed. By 
writs of error the records are brought here for review. 

The cases were submitted to the trial court upon agreed statements 
of fact. In one case it is stipulated that plaintiff owns and occupies a 
farm of about 100 acres, situate in the valley of Canoe brook, in the 
townships of Millburn and Livingston, in the county of Essex. He 
is a milkman, and has for a number of years used his farm for the 
pasture and support of his cows and horses. Canoe brook and two 
small streams tributary thereto flow through his fann. Upon the 
farm there is also a spring, inclosed by a springhouse, the water 
of which has for years been used by the plaintiff for drinking pur- 
poses and for the storing and keeping of his milk. His cattle in pas- 
ture have for years resorted to the brook and its tributaries for drink- 
ing water. The defendant, the city of East Orange, under the au- 
thority of "An act to enable cities to supply the inhabitants thereof 
with pure and wholesome water," approved April 21, 1876, and the 
acts supplemental thereto and amendatory thereof (P. L. 1876, p. 366; 
Gen. St. 1895, pp. 646-650, §§ 902-917), acquired a tract of land con- 
taining about 680 acres situate in the valley of Canoe brook and in the 
township of Millburn, and installed thereon a water plant consisting of 
about_20 artesian wells, situate further down the stream than plain- 
tiff's farm and distant upwards of a mile therefrom. In the construc- 
tion of these wells, and of the works, mains, and reservoirs connected 
therewith, the city has expended more than $1,000,000. A few years 
prior to the commencement of the action, the city began to take water 
from the wells, and has thus taken percolating underground water, 
which, but for its interception, would have reached the plaintiff's spring 
or stream. No water other than percolating water has been taken, and 
no water has been taken out of any surface stream or from the spring 
of the plaintiff after it (the water) has appeared upon the surface or in 
any surface or stream. In this action the plaintiff seeks damages f(*^ 

any damage sustained by A. Held, the instruction was incorrect. Chat- 
field V. Wilson, 28 Vt. 49 (1855). Contra: Barclay v. Abraham, 121 Iowa, 
619, 96 N. W. 1080, 64 L. R. A. 255, 100 Am. St. Rep. 365 (1903) ; Stillwatrr 
Water Co. v. Farmer, 89 Minn. 58, 93 N. W, 907, 60 L. R. A. 875, 99 Am. Si. 
Rep. 541 (1903). Compare Phelps v. Nowlen,,72 N. Y. 39, 28 Am. Kep. 93 
(1878). 

i Part of the opinion is omitted 



/ (c U 



12G RIGHTS INCIDENTAL TO POSSESSION (Part 1 

the diversion of the underground water that otherwise would have 
reached his spring and streams. 

In the other action the agreed statement of facts differs only in that 
it shows the existence upon plaintiff's farm of a well which for years 
had provided water for the various purposes of the plaintiff, and that 
as a result of the defendant's operations it had taken percolating 
underground water which otherwise would have reached this well, 
and had also taken percolating underground water from beneath the 
surface or soil of the plaintiff's land to such an extent that his crops 
will not now grow as they did formerly, and the taking of such 
percolating water has damaged the plaintiff's hay and crops, and 
also has reduced the level of the water in his well. For this diversion 
damages are sought. : :?;!.'!•■. 

The judgments under review are based upon the theory that the 
city has an absolute right to appropriate all percolating water found 
beneath the land owned by it, and to use the water for purposes en- 
tirely unconnected with the beneficial use and enjoyment of that land, 
to the extent, indeed, of making merchandise of the water and con- 
veying it to a distance for the ^pply of the inhabitants of East Or- 
ange, and that although by such diversion the plaintiff's spring, well, 
and stream are dried up, and his land rendered so arid as to be un- 
tillable, it^ is damnum absque injuria. The judgments are attacked 
upon the ground that the law recognizes correlative rights in percolat- 
ing subterranean waters, that each landowner is entitled to use such 
waters only in a reasonable manner and to a reasonable extent bene- 
ficial to his own land, and without undue interference with the rights 
of other landowners to the dike use and enjoyment of waters per- 
colating beneath their lands, or of water courses fed therefrom. 

The law respecting the rights of property owners in percolating sub- 
terranean waters is of comparatively recent development; the first 
English decision bearing directly upon the question having been ren- 
dered in 1843. Acton v. Blundell, 12 M. & W. 324, 13 L. J. Exch. 
289. This was followed by Chasemore v. Richards (1859) 7 H. L. Cas. 
349, 29 L. J. Exch. 81, 5 Jur. N. S. 873, 1 Eng. Rul. Cas. 729. These 
cases may be taken as establishing for that jurisdiction the rule upon 
which the judgments under review are based. They were followed 
by a considerable line of decisions in this country, in which the Eng- 
lish rule was adhered to, and which will be found discussed in Wash- 
burn on Easements, 363-390; Angell on Water Courses, §§ 109-1 14p; 
30 Am. & Eng. Encyc. Law (2d Ed.) 310-313. 

The soundness of the English doctrine was, however, challenged by 
the Supreme Court of New Hampshire in a well-considered case 
decided in 1862 (Bassett v. Salisbury Mfg. Co., 43 N. H. 569, 82 Am. 
Dec. 179), where it was elaborately reasoned that the doctrine of ab- 
solute ownership is not well founded in legal principles, and is not 
so commended by its practical application as to require its adoption, 
that the true rule is that, the rights of each owner being similar, and 



Ch. 6) UNDERGROUND WATERS 127 

their enjoyment dependent upon the action of other landowners, their 
rights must be correlative and subject to the operation of the maxim 
sic utere, etc., so that each landowner is restricted to a reasonable 
exercise of his own rights and a reasonable use of his own property, 
in view of the similar rights of others. This decision was followed 
by Swett V. Cutts (1870) 50 N. H. 439, 9 Am. Rep. 276, where the 
court again laid down that the landowner has not an absolute and un- 
qualified property in all such water as may be found in his soil, to 
do what he pleases with it, as with the sand and rock that form part 
of the soil, but that his right is to make reasonable use of it for do- ^ y 
mestic, agricultural, and manufacturing purposes, not trenching upon 
the similar rights of others. The doctrine, thus enunciated, has come 
to be known in the discussion of the topic as the rule of "reasonable 
use." * * * — 

A review of the reasoning upon which the English doctrine respect- 
ing percolating underground waters rests will demonstrate, as we think, 
that this reasoning is unsatisfactory in itself and inconsistent with 
legal principles otherwise well established. Thus, in Acton v. Blundell, 
12 AI. & W. Exch. 349, Tindal, C. J., in undertaking to show the in- 
applicability to percolating waters of the law that governs running 
streams, declared that the ground and origin of the law respecting 
the latter would seem to be that the right enjoyed by the several pro- 
prietors of the lands over which they flow is, and always has been, 
_public and notorious, that the enjoyment has been long-continued and 
uninterrupted, and therefore based upon the implied assent and agree- 
ment of the proprietors of the different lands from all ages, while 
undergr ound waters, being concealed from view, there can be no im- 
plied mutual consent or agreement between the owners of the several 
lands respecting them ; but, as has been since repeatedly pointed out, 
the right of the riparian owner to the flow of a natural stream arises 
ex jure naturae, and not at all from prescription or presumed grant 
or acquiescence arising from long-continued user. See remarks of 
Parke, B., in Broadbent v. Ramsbotham, as reported in 25 L. J. Exch., 
at page 121 ; and remarks of Lord Wensleydale in Chasemore v. 
Richards, 7 H. L. Cas., at pages 382, 383, 29 L. J. Exch. 87, 1 Eng. 
Rul. Cas. 752, 753, and cases cited. 

Again, in Acton v. Blundell, 12 M. & W. 351, the Chief Justice said: 
"If a man who sinks a well in his own land can acquire by that act an 
absolute and indefeasible right to the water that collects in it, he has 
the power of preventing his neighbor from making any use of the 
spring in his own soil which shall interfere with the enjoyment of 
the soil." Obviously he failed to note that there is a^ middle ground 
between the existence of an absolute and indefeasible right and the 
absence of any right that the law will recognize and protect. There 
is room for the existence of qualified and correlative rights in both 
landowners. The English rule seems to be rested at bottom upon the 
maxim, "Cujus est solum, ejus est usque ad coelum et ad inferos." 



128 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

Thus, in Acton v. Blundell, 12 M. & W. 354, Tindal, C. J., said that 
the case fell within "that principle which gives to the owner of the soil 
all that lies beneath his surface ; that the land immediately below ;s 
his property, whether it is solid rock, or porous ground, or venous 
earth, or part soil, part water ; that the person who owns the surface 
may dig therein, and apply all that is there found to his own purposes 
at his free will and pleasure." Here the impracticability of applying 
the rule of absolute ownership to the fluid, water, which by reason of 
its nature is incapable of being subjected to such ownership, is ap- 
parently overlooked. If the owner of Whiteacre is the absolute pro- 
prietor of all the percolating water found beneath the soil, the owner 
of the neighboring Blackacre must, by the same rule, have the like 
proprietorship in his own percolating water. How, then, can it be con- 
sistent with the declared principle to allow the owner of Whiteacre 
to withdraw, by pumping or otherwise, not only all the percolating 
water that is normally subjacent to his own soil, but also, and at the 
same time, the whole or a part of that which is normally subjacent to 
Blackacre ? Where percolating water exists in a state of nature gener- 
ally throughout a tract of land, whose parcels are held in several own- 
ership by different proprietors, it is, in the nature of things, iinpossible_ 
to accord to each of these proprietors the absolute right to withdraw 
ad libilum all percolating water which may be reached by a well or 
pump upon any one of the several lots, for such withdrawal by one 
owner necessarily interferes to some extent with the enjoyment of 
the like privilege and opportunity by the other owners. 

Again, the denial of the applicability to underground waters of the 
general principles of law that obtain with respect to Avaters upon the 
surface of the earth is in part placed upon the mere difficulty of prov- 
ing the facts respecting water that is concealed from view ; but ex- 
perience has demonstrated in a multitude of cases that this difficulty 
is often readily solved. When it is solved in a given case, by the 
production of satisfactory proof, this reason for the rule at once van- 
ishes. It is sometimes said that, unless the English rule be adopted, 
landowners will be hampered in the development of their property 
because of the uncertainty that would thus be thrown about their 
rights. It seems to us that this reasoning is wholly faulty. If the 
English rule is to obtain, a man may discover upon his own land springs 
of great value for medicinal purposes or for use in special forms of 
manufacture, and may invest large sums of money upon their develop- 
ment; yet he is subject at any time to have the normal supply of such 
springs wholly cut off by a neighboring landowner, who may with 
impunity sink deeper wells and employ more powerful machinery, and 
thus wholly drain the subsurface water from the land of the first dis- 
coverer. 

In the case before us, the city of East Orange might have its un- 
derground water supply cut off or materially impaired by the estab- 



Ch. G) UNDERGROUND WATERS 129 

lishment of deeper wells and more powerful pumps upon some neigh- 
boring tract — even upon the tract owned by the plaintiff. * * * 

Upon the whole, we are convinced, not only that the authority of the 
English cases is greatly weakened by the trend of modern decisions 
in this country, but that the reasoning upon which the doctrine of 
"rea sonable user" rests is better supported upon general principles 
of law and more in consonance with natural justice and equity. We 
therefore adop t the latter doctrine. This does not prevent the proper 
user by any landowner of the percolating waters subjacent to his soil 
in agriculture, manufacturing, irrigation, or otherwise ; nor does it 
prevent any reasonable development of his land by mining or the like, 
although the underground water of neighboring proprietors may thus 
be interfered with or diverted ; but it does prevent the withdrawal of 
underground waters for distribution or sale for uses not connected 
with any beneficial ownership or enjoyment of the land whence they 
are taken, if it thereby result that the owner of adjacent or neighboring 
land is interfered with in his right to the reasonable user of subsurface 
water upon his land, or if his wells, springs, or streams are thereby 
materially diminished in flow, or his land is rendered so arid as to be 
less valuable for agriculture, pasturage, or other legitimate uses. 

It follows that the judgments of the district court and of the Su- 
preme Court must be reversed."^ * * * 

5 Ace: Katz v. Walkinshaw, 141 Cal. 116^ 70 Pac. 663, 74 Pac. 766. 64 L. 
R. A. 236,'9gTS. St Rep: 35 (1903) ; Forbell v. New York, 164 N. Y. 522, 58 
N. E. 644, 51 L. R. A. 695, 79 Am. St. Rep. 666 (1900). Contra:' Chasemore 
V. Richards, 7 H. L. Gas. 349 (1859). Compare Houston & T. C. R. Co. v. 
East, 98 Tex. 146, 81 S. W. 279, 66 L. R. A. 738, 107 Am. St. Rep. 620, 4 
Ann. Cas. 827 (1904). 

See Erickson v. Crookston Waterworks, Power & Light Co., 105 Minn. 182, 
117 N. W. 435, 17 L. R. A. (N. S.) 650 (1908). 

As to the form of relief to which plaintiff is entitled, compare Westphal 
V. New York, 177 N. Y. 140, 69 N. E. 369 (1904). 

As to protecting a possible future user of water for local purposes against 
non-local user, see Burr v. Maclay Water Co., 154 Cal. 428, 98 Pac. 260 (1908)^ 

A. had a valuable mineral spring on his land; B., in the process of de- 
veloping on his own land a supply of the same water, temporarily pumped 
and wasted so much of the water as to lower A.'s spring, to his damage. 
Held, A. has no cause of action. Pence v. Carney, 58 W. Va. 296, 52 S. E. 
702, 6 L. R. A. (N. S.) 266, 112 Am. St. Rep 963 (1905). 

B. installed a pump on his land, and pumped and wasted valuable min- 
eral water, thereby draining A.'s springs, at which A. had erected an ex- 
pensive hotel and built up a large business. B. did this for the purpose of 
compelling A. to buy him out. Held, A. may enjoin B. from so wasting;^ the 
waters. Gagnon v. French Lick Springs Hotel Co., 163 Ind. 6817^''^ E. 
849, 68 L. R. A. 175 (1904). Contra: Bradford v. Pickles [1895] A. C. 587. 

Defendant bought from the plaintiff a narrow strip of land along a stream 
and then built a dam on his land below. He made an embankment on the 
strip to protect the plaintiff's land from being flooded, but the water per- 
colated through the natural banks of the creek and made the plaintiff's land 
wet. The defendant was held liable, though he had built the embankment 
with due care and skill. The court said: "It is not that the defendants 
have unreasonably, negligently, unintentionally, unnecessarily, or unexpect- 
edly flowed the plaintiff's land, to his injury, for their beuetit, that they are 

BlG.RlOHTS-^9 



130 RIGHTS INCIDENTAL TO POSSESSION (Part 1 



MERRICK WATER CO. v. CITY OF BROOKLYN. 

(Supreme Court of New York, Appellate Division, Second Department, 1898. 

32 App. Div. 454, 53 N. Y. Supp. 10, Affirmed [1S99] 160 N. Y. 657, 

55 N. E. 1097.) 

Hatch, J.® The plaintiff is a corporation engaged in the business 
of collecting water, and selling the same to its various customers 
throughout the neighborhood where it has its principal place of busi- 
ness. The complaint avers that the land occupied by the plaintiff, and 
from which it obtains its water supply, is located on a subterranean 
stream supplied from a water shed . which is particularly described ; 
that such underground stream rises to the surface on the plaintiff's 
land, and flows into ponds owned by it. The complaint further avers 
that the defendant has acquired a considerable strip of land lying 
north of the plaintiff's pumping station and its wells, upon which 
land it intends to sink about 80 wells, and draw therefrom a water 
supply for the city of Brooklyn, and that, if it carries out such purpose, 
it will draw the water from the plaintiff's wells and the underground 
stream, and also from the surface stream and said ponds, whereby the 
plaintiff will be deprived of its water, its business will be destroyed, 
and the locality in which it seeks to carry on its business will be 
checked in its growth. The complaint demands judgment that the 
defendant be restrained from sinking its wells or establishing a pump- 
ing station, or doing any other act upon its land which will diminish 
the flow of water upon the plaintiff's lands. At the time of the trial 
the defendant had sunk its wells, established its pumping stations, was 
engaged in operating the same, and was carrying the water thus ob- 
tained to the city of Brooklyn. The proof tended to estabhsh, and 
the referee found, that the effect of the defendant's pumping had 
been to permanently lower the water in plaintiff's well from seven to 
eight feet ; that such lowering was caused by the defendant's pumps 
in drawing the water from under the plaintiff's well and the land on 
which it is situated. The evidence failed in support of the averment 
that there existed a subterranean stream of water which supplied the 

liable. It is simply because they have done it in factj they have done it 
by their works, and it cannot be charged to extraordinary floods. In the 
language of the old books, 'the defendants' exaltavunt stagnum by which the 
plaintiffs meadow was flooded,' and they are liable therefor. Godbolt, 58. 
The necessity, motive, knowledge, or care of defendants forms no element 
of this action. Not the peculiar mode or manner of the injury, but the fact 
of the injury caused bv the dam, in any mode or manner, is the ground of 
"the action." Pixley v. Clark, 35 N. Y. 520, 531, 91 Am. Dec. 72 (1866). See, 
also, Wilson v. City of New Bedford, 108 Mass. 261, 11 Am. Rep. 352 (1871). 
When the effect of the reservoir was to prevent the underground waters on 
B.'s land passing along by percolation, A. was held to have no liability. 
Harwood v. Benton, 32 Vt. 724 (1860). But see Bassett v. Salisbury Mfg. 
Co., 43 N. H. 569, 82 Am. Dec. 179 (1862). In general, as to the extent of 
liability for damage caused by accumulated water, see Rylands v. Fletcher, 
L. R. 3 H. L. 330 (1868), and other cases in Hepburn's Cases on Torts, 776 
et seq. 

6 Part of the opinion is omitted. 



Ch. 6) UNDERGROUND WATERS 131 

plaintiff's well. Upon this subject the proof was that the interrup- 
tion, by the act of the defendant, was of percolating water, and as a 
consequence the water in the well was diminished in quantity, as was 
the flow of the small surface stream running to the ponds, which was 
practically, if not entirely, dried up, and the quantity of water in 
the ponds diminished. * * * 

In the present case both corporations seek to obtain water in a 
similar manner, for a precisely similar purpose ; i. e. for transportation 
and sale. Neither party intends to make use of its land for any other 
purpose than will facilitate the gathering and distribution of water. 
In_this_respect their rights are equal, one as great as the other; and 
we see no reason why the rule should not be applicable as would 
apply in case either owner desired to improve its land for purposes 
of use. Then, as we have seen, neither party would be liable for the 
diversion of percolating water, because each is engaged in the exercise 
of a legal right, and the rights of each are equal in the use and enjoy- 
ment of the land. When both seek to use their land for exactly the 
same purpose, and neither seeks to improve it for the purpose of bene- 
ficial enjoyment, but to make a profit from the business carried on, the 
right to such use must also be equal. Under such circumstances, if one 
gets more than the other we think there can be no more ground of com- 
plaint than would exist if both sought to improve their own land, and 
one secured more than the other, or one was damaged and the other 
not. As applied to such obligations, the doctrine of reasonable use 
and relative rights has never been adopted by any of the courts in this 
state, nor in any other state, so far as our research has discovered, 
except in New Hampshire. We are not able to see, therefore, that 
the act of the defendant has infringed upon any legal right which the 
plaintiff possessed. So far as the diversion of the small brook is con- 
cerned, we do not think that the facts warrant its separation from 
the rule applicable to percolating water. There ' was little proof to 
show that its source, character, or use was such as to make the rule of 
the Smith Case applicable. It is not every rivulet or small stream to 
which such rule can be applied, as it is evident, if such were the rule, 
then an adjoining owner might be unable to improve his property, or 
might improve, and find himself liable for exercising his legal right. 
The destruction must be unreasonable when the rights of both parties 
are considered, and, as applied here, we think it was not sufficient to 
create a subject-matter of legal damage. 

These views call for a reversal of the judgment.'^ 

7 Ace: When neither party used a pump. Ocean Grove v. Asbury Park, 
40 N. J. Eq. 447, 3 Atl. 108 (1SS5). 

A. had a natural mineral spring, the waters of which he bottled and sold. 
B. installed a pump and pumped the waters, extracted the carbonic acid ga.s, 
which he sold, and let the waters go to waste. This pumping diminished the 
waters in A.'s spring, to his damage. Held, A. may enjoin B. Hathom v. 
Natural Carbonic Gas Co.. 194 N. Y. 326, 87 N. E. 504, 23 L. R. A. (JN. S.) 
436, 128 Am. St. Rep. 555, 16 Ann. Cas. 989 (1909). 



132 RIGHTS INCIDENTAL TO POSSESSION (Part 1 



KINNAIRD V. STANDARD OIL CO. 

(Court of Appeals of Kentucky, 1S90. 89 Ky. 468, 12 S. W. 937, 7 L. R. A. 
451, 25 Am. St. Rep. 545.) 

Pryor, J.® The appellant, Kinnaird, is the owner of a small tract 
of land containing about four acres, lying adjacent to or within the 
boundary of the town of Lancaster, in the county of Garrard. On this 
land is a valuable and never-failing spring, that appears upon the sur- 
face of the ground at the foot of a hill, and had been used as such for 
a long period of time. In November of the year 1886 the appellee, the 
Standard Oil Company, leased from the Kentucky Central Railroad 
Company a site upon which to build a warehouse for the storage of its 
coal oil. They erected the warehouse, and placed in it their coal oil, 
that leaked from the casks, and saturated the gr.ound^ both on the in- 
side and outside of the building. The floor of the house consisted of 
a bed of cinders about 12 inches in depth, that supplied the place of 
plank, that, as the proof shows, would become very inflammable when 
saturated with the oil. The bed of cinders, therefore, rendered the 
property much more secure than if a floor had been laid in the build- 
ing. The spring of the appellant is located about 200 yards from the 
oil-house of the appellee, with a hill or rise in the ground between the 
two, and the proof conduces to show that water on the surface of the 
ground at the oil-house would naturally flow in an opposite direction 
from the spring, because it is lower than the ground where the spring 
emerges from the hill. After the oil had been deposited in the build- 
ing erected for that purpose, it is manifest that it leaked from the casks^ 
and, being of such a penetrating character, it passed into the grou nd^ 
and polluted the water or stream from which the spring of appellant 
was supplied. 

While it is argued that the proof on this subject is by no means sat- 
isfactory, we think it apparent from the testimony that the oil mingled 
with underground currents of water that fed the spring of the appel- 
lant, and caused the injury. The court below, on hearing the testi- 
mony, gave a peremptory instruction to the jury, on the ground that no 
action could be maintained for contaminating the subterranean water 
that flowed into the spring of the appellant, as the appellee had the 
right, in the exercise of its legitimate business, to build the house, and 
store the oil within it, on its own land, although the property of its 
neighbor was injured by it, * * * 

It seems to us, after a careful review of the authorities referred to 
by counsel for the corporation, all of which are entitled to great weight, 
that there is a manifest distinction between the right of the owner of 
land to use the under-ground water upon it, that originates from per- 
colation or is found in hidden veins, and the right to contaminate it 

8 Part of the opinion is omitted. 



Ch. G) UNDERGROUND WATERS 133 

SO as to injure or destroy the water when passing to the adjoining land 
of his neighbor. 

It is a famihar doctrine that one must so use his property as not to 
injure his neighbor, and because the owner has the right to make an 
appropriation of all the under-ground water, and thus prevent its use by 
another, he has no right to poison it, however innocently, or to con- 
taminate it, so that when it reaches his neighbor's land it is in such con- 
dition as to be unfit for use either by man or beast. One may be en- 
titled by contract with his neighbor to all the water that flows in a 
stream on the surface that passes through the land of both, and, while 
he can thus appropriate it, he has no right to pollute the water in such 
a manner as, when it passes to his neighbor, its use becomes dangerous 
or unhealthy to his family, or to the beast on his farm. As soon as 
the water leaves the land of the one who claims the right to use it, and 
runs on the land of another, the latter has the same right to appropriate 
it, and, if property, it then becomes as much the property of the last 
as the first proprietor. The owner of land has the same right to the ^^ ,^^., 
use a nd enjoyment of the^aii* that is around and over his premises as jt!^ t 
he has to use and enjoy the water under his ground. He is entitled to 
the use of what is above the ground as well as tliat below it, and still 
it will scarcely be insisted that he can poison the atmosphere with nox- 
ious odors that reach the dwelling of his neighbor, to the injury of 
the health of himself or family. If not, we see no reason why he 
should be permitted to so contaminate the water that flows from his 
land to his neighbor's, producing the same results, and still escape lia- 
bility for the damages sustained, and whether the water escapes the 
one way or the other is immaterial. 

The simple question is, can the owner, with a knowledge of the pene- 
trating character of its oil, and the effects following its leakage, store 
large quantities of it near the spring of the plaintiff, when the oil is 
seen in puddles outside of the building, the result of leakage of the 
casks on the inside, and resist the claim of the plaintiff' on the ground 
that it did not know the water was affected by it? The injury has been 
done, and can it be said that it presents a case of damnum absque in- 
juria? We t hink not. * * '^ 

The entire dominion of the defendant over its property in the pres- 
ent case is undenied, but it had no right, while enjoying its use, al- 
though in a legitimate way, to violate, by the manner of its use, the 
jights of"6thers. It seems to us unreasonable to adjudge that the erec- 
tion an3"operatron of gasworks, or buildings for the storage of oil, with 
the noxious and injurious substances, by reason of the deposit on the 
surface permeating the ground, and injuring or destroying the taste 
or use of water belonging to and on the property of others, is such a 
legitimate use of one's property, and his dominion over it, as to pre- 
clude any recovery for an injury to the property of his neighbor, how- 
ever great, and to require a notice that the injury has, been inflicted be- 
fore the action can be maintained would be to destroy the theory or 



134 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

the principle upon which a recovery in the case is permitted. It is ar- 
gued that the appellee was ignorant of the existence of the nuisance or 
injury to appellant's spring, and had no right to suppose that its oil 
was affecting the water in the spring of the plaintiff. This may be so, 
and still the defendant is responsible for the injury, although it was 
not aware that its neglect in permitting the oil to leak from the casks, 
and stand in pools outside the building, had or would work an injur}' 
to the plaintiff. If a nuis ance, whether neglect or not, the appellee is 
liable. 

We have assumed, in the consideration of the questions presented, 
that the injury complained of resulted from the manner in which the 
oil was kept in the store-house of the defendant, but we are not to be 
understood as taking that question from the jury on the return of the 
case. * * * 

Judgment reversed and remanded, with directions to award a new 
trial, and for proceedings consistent with this opinion.® 

9Acc.: Tenuant v. Goldwin, 1 Salk. 360 (1704); Ballard v. Tomlinson, L. 
R. 29 Ch, Div. 115 (1SS5) ; Ball v. Nye, 99 Mass. 5S2, 97 Am. Dec. 56 (1S6S). 
See Patrick v. Smith, 75 Wash. 407, 134 Pac. 10T6, 4S L. R. A. (N. S.) 740 
(1913). 

The defendant drove a gas well on its own land about 50 feet from the 
plaintiff's spring. As a result the spring was affected and rendered worth- 
less by pollution from a stratum of salt water encountered in sinking the 
gas well. The plaintiff was allowed to recover for the damage so caused. 
The court said: "The defendant is liable, not because it has necessarily in- 
.iured the' plaintiffs in the exercise of its own legal right, but becaiise It has 
injured them unnecessarily by the neglect of such reasonable precautions as 
might and should have been taken to protect them. According to the testi- 
mony, this gas well was drilled with the knowledge of the fact that salt 
water was to be encountered ; that it could be confined to its own bed ; that, 
if it was not, the 'whole neighborhood would be spoiled ;' and that there were 
many wells near by in the borough of Glenfield to be affected by their want 
of care of it in this particular. Yet no effort whatever was made to shut 
off the salt water, or to avoid the destruction of the wells which it was 
practicable to save. The ground of the defendant's liability is i3e5ligenc'e-::r 
the want of reasonable care, under the circumstances, for the rights of oth- 
ers." Collins v. Chartiers Val. Gas Co., 139 Pa. Ill, 21 Atl. 147 (1S91). 

A. built a gas retort on his own land, and there deposited the refuse mat- 
ter resulting from the manufacture ; part of it was carried by _surface_ water 
or shallow subsurface percolation into B.'s well; part of it worked" in to "ffie' 
ground and polluted the deeper underground waters by which B.'s well was 
supplied. B. brought action for the pollution. Held, A. is liable for the 
pollution resulting from the surface and shallow subsurface direct percola- 
tion, but for the indirect pollution of the well only if his conduct is mali^ 
cious, and knowledge that these consequences are" being produced is not 
sufficient. Brown v. Illius, 27 Conn. 84, 71 Am. Dec. 49 (1858). 

See, also, Dillon v. Acme Oil Co., 49 Hun, 565, 2 N. Y. Supp. 2S9 (1888); 
Beatrice Gas Co. v. Thomas, 41 Neb. 662, 59 N. W. 925, 43 Am. St. Rep. 711 
(1894). 



M- 



Ch. 6) UNDERGRODND WATER8 135 

HALE V. McLEA. 

(Supreme Court of California, 1879. 53 Cal. 578.) 

[The plaintiff and the defendant owned adjacent tracts of land. On 
the plaintiff's tract near the boundary was a small, never-failing spring 
of water which the plaintiff used for domestic purposes. On defend- 
ant's land a line of bushes, usually found nowhere except on a water 
course, extended up to the boundary line at the point near which the 
spring appeared. The defendant, on his own land and just inside the 
boundary, began at some distance from the line of bushes and at right 
angles to it a trench, which deepened to a depth of nine feet where it 
intercepted the line of bushes. At this point a stream of water made 
its way into the trench and was piped away by the defendant to his 
house, where part of it was used and the rest allowed to go to waste. 
Immediately after this was done the plaintiff's spring ceased to flow 
and has since remained dry. The defendant was not actuated by mal- 
jce. The plaintiff brought action for the diversion of the water. He 
had judgment below and defendant appealed.]^" 

CrockKTT, J. An examination of the English and American deci- 
sions on the questions of law involved in this appeal leads us to the con- 
clusion that, on the facts admitted by the pleadings or found by the 
court, the right of the defendant as against the plaintiff to use the wa- 
ter of the subterranean stream, which is the subject of the action, is 
at most no greater than if it was a surface stream, on which the de- 
fendant was the upper and the plaintiff a lower riparian owner. Test- 
ed by this rule, the utmost that can be claimed for the defendant on the 
facts is, that he is entitled to take from the stream as much water as 
he need s Jor watering his cattle and for domestic uses, such as cook- 
ing, washing, and the like, leaving the surplus to flow to the spring of 
the.4ilaintiff_in its natural channel. But. the findings show that the de- 
fendant has diverted the whole body of the stream through pipes, in 
such a manner that no portion of the water can reach the spring ; and 
the surplus at the commencement of the action was running to waste, 
as appears from the admissions in the pleadings. If it were, a surface^ 
stream, the plaintiff would be entitled to have it flow to and across his 
lands, in its natural channel, subject only to the right of the defend- 
ant to use so much of the water as is necessary to supply his natural or 
primary wants as above indicated; nor, on the facts found, can the 
cletendant exercise any greater right in respect to a subterranean 
stream. Assuming, therefore, that the rights of the defendant are 
precisely the same as though it was a surface stream, he has exceeded 
them by diverting the whole body of the water from its natural chan- 
nel, instead of allowing the surplus to flow to the spring in its accus- 
tomed bed. 

10 The statement of facts is rewritten and the concurring opinion ot 
Rhodes, J., is omitted. 



136 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

But the exigency of the case does not require us to decide that the 
defendant has the same right in respect to a subterranean stream as 
though it was a surface stream flowing across his land; and our deci- 
sion is only to the effect that, if it be assumed his rights are the same, 
he has, nevertheless, exceeded them by diverting the whole bod)^ of the 
stream, instead of allowing the surplus to flow to the spring in its nat- 
ural channel. 

There is no question in this case involving the right of a riparian 
owner to the use of water for purposes of irrigation ; nor is the point 
before us whether or not a land-owner may be restrained from divert- 
ing or obstructing the flow of an underground current, running in a 
defined channel across his land, and which supplies a spring or well on 
the adjoining lands, if it become necessary to divert or obstruct the 
stream in the prosecution of the business of mining, or any other legit- 
imate enterprise on his own land ; nor to what extent, if at all, it would 
affect the question if the underground current was not known to exist 
until the fact was discovered in the prosecution of the work. These are 
grave questions, which the exigency of the present case does not re- 
quire us to decide. 

Judgment affirmed. ^^ 



HAGUE V. WHEELER. 

(Supreme Court of Pennsylvania, 1893. 157 Pa. S24, 27 Atl. 714, 22 L. R. A. 
141, 37 Am. St. Eep. 736.) 

Williams, J.^^ * * * Jj^ ^j^g treatment of this case it is a mat- 
ter of first importance to get a clear apprehension of the facts on which 
the questions are raised. There are two plaintiffs who join in the bill, 
whose interests, while like in kind, are nevertheless several and dis- 
tinct. There are several defendants, but their interests appear to be 
joint. The two plaintiffs hold separate leases on parts of tracts in 
\Varren and Foster counties, Nos. 5,202, 5,203, 5,207, and 5,209, ag- 
gregating about 2,200 acres. The gas company began drilling on its 
leases in 1887. Hag-ue began in 1888. Each has a gas well or wells 
furnishing gas in sufficient volume to enable the owner to utilize it by 
transportation to and sale in towns in the vicinity. The defendants are 

11 Ace: Keeney v. Carillo, 2 N. M. 480 (1883). See, also, Willis v. City of 
Perry, 92 Iowa, 297, 60 N. W. 727, 26 L. R. A. 124 (1894) ; Strait v. Brown, 
16 Nev. 317, 40 Am. Rep. 497 (1881) ; Whetstone v. Bowser, 29 Pa. 59 (1857). 
Compare City of Los Angeles v. Hunter, 156 Cal. 603, 105 Pac. 755 (1909). 

A., in mining on his own land, unexpectedly intercepted an underground 
stream that supplied a spring on B.'s land, used by B. for domestic pur- 
poses. By the pumping necessary to render his mine workable, A. destroyed 
this stream, with the result that the spring went dry. Held, B. has no 
right of action against A. Haldeman v. Bruckhart, 45 Pa. St. 514. 84 Am. 
Dec. 511 (1863). Ace: Chase v, Silverstone, G2 Me. 175, 16 Am. Rep. 419 
(1873). 

12 The statement of facts and part of the opinion are omitted. 



Ch. 6) UNDERGROUND WATERS 137 

owners and lessees of part of tract No. 5,207, which adjohis the lands 
of the gas company, and is not far from the lands of Hague. In 1890 
they drilled a well on their tract, and obtained gas in considerable vol- 
ume, but not sufficient to enable them to utilize it by transportation and 
sale. They have therefore allowed it to escape into the open air. The 
plaintiffs allege that the "geolo'gical formation in that locahty" is such 
that the gas-bearing sand rock underlying all these tracts and forming 
the common reservoir or deposit from which the gas is obtained "is 
subject to drainage by the drilling of wells on any part thereof." For 
this reason they assert that "the flow of gas from the said well of de- 
fendants is so great that it will, if allowed to go to waste, seriously and 
irreparably injure the wells of the plaintiffs by drainage from the lands 
adjoining and near to said defendants' wells. To prevent this they 
state that they entered on the defendants' land, and at a cost of about 
$200 shut in the gas and closed the well. The defendants then threat- 
ened to remove the cap or plug and permit the gas to escape again into 
the air. Upon these facts the plaintiffs asked the court below to en- 
join the defendants from removing the cap or plug from the casing or 
tubing in the well, and from "permitting the gas therefrom to flow into 
the air, or otherwise go to waste." The injunction was granted, and 
from that decree this appeal was taken. 

The affidavits show that the defendants drilled their well in 1890, ar 
the suggestion and request of the gas company, and that negotiations 
for its purchase by the gas company have been conducted at some 
length, but without resulting in a bargain. This fact — that the well in 
controversy had been drilled at considerable cost by the defendants, at 
the request of the gas company — the learned judge rightly regarded 
as a significant one. In the opinion filed by him, which is an able one. 
he says that this fact "might defeat this application so far as the gas 
company is concerned ;" but he regarded it as of no consequence so 
far as the other plaintiff' was concerned, for he immediately added : 
"But, as it cannot affect the plaintiff" Hague, it is not necessary to con- 
sider it at this time." He then proceeds to state and consider the ques- 
tion on which his decree was based, upon a state of facts such as might 
arise where an adjoining owner was guilty of malice or negligence in 
the conduct of operations on his land resulting naturally in injury to 
his neighbor. But is this conclusion of the learned judge that Hague 
stood on higher ground than the gas company a correct one ? The acts 
complained of were the drilling of the well in 1890, when the wells of 
both the plaintiff's were in full operation, and the subsequent failure to 
utilize or shut in the gas. The drilling of the well was accounted for, 
and the suggestion of malice or negligence therein pegatived by proof 
that it was done at the instance of the gas company. This company 
had a considerable gas plant, and was engaged in the supply of gas to 
its customers for fuel. It was interested in the development of the 
region, and evidently expected to buy the defendants' well if it was of 
sufficient size to be capable of utilization. The defendants and the gas 



138 RIGHTS INCIDBNTATv TO POSSESSION (Part 1 

company could not agree upon the price of the well after it was drilled, 
but the fact that it was drilled at the request of the company, and not 
of the mere motion of the defendants, was an answer to any allegation 
of malice or negligence on the part of Hague as well as on the part of 
the company, since it accounted for the act of drilling by assigning a 
motive therefor, both lawful and neighborly. It will not do to say that 
an act thus accounted for as to one plaintiff may be assumed to be the 
result of malice or negligence as to the other, in the absence of proof 
to sustain the assertion. These plaintiffs stand on common ground. 
Neither of them can complain of the defendants for the act of drilling 
the well on their land on any other ground than the existence of malice 
or negligence. When the act is accounted for in such a manner as to 
show that it was not done with malice, or in negligence, but in good 
faith, as an act of ownership, and at the solicitation of the gas com- 
pany, the character of the act is established, and as a basis of relief 
it falls out of the case. 

What have we then? Three landowners owning considerable hold- 
ings in the same basin, or overlying the same gas-bearing sand rock, 
each having an open gas well or wells on his land, drilled without mal- 
ice or negligence, in a lawful manner, and for a lawful purpose. Two 
of these owners have been able to utilize the gas from their respective 
lands and find a market for it. One of them has not been so fortunate. 
He has gas from his well, but up to the time of the filing of this bill he 
has not been able to utilize or dispose of it, and his gas has gone to 
waste for that reason. His more fortunate neighbors come into a court 
of equity, and ask that he shall not be pennitted to let his gas run, be- 
cause, while this gas is his own, underlying his tract, and finding its 
way to the surface through his well, it has a tendency to drain the sand 
rock, and so to reduce ultimately the flow of gas from their wells. This 
would be equally true if the defendants were able to utilize their gas ; 
yet it is conceded that in that case their right to the gas from their well 
would be as incontestable as the right of the plaintiffs to use the gas 
from theirs, How is that right lost? By their inability to find a pur- 
chaser? If they can find a purchaser, or turn the gas to any useful pur- 
pose, their right to the gas that flows from their well is conceded. If 
they cannot, their right is denied. Their well must be shut in, while 
their successful neighbors drain the entire basin through their open 
wells, and receive pay for the gas. This is a proposition to limit the 
power of the owner over his own by the use he is able to make of it. 
If he can sell his gas or his oil, or turn it to some practical purpose, 
his power over it as owner is unabridged. If he cannot find a purchas- 
er, or a practical purpose to which to apply his yield of gas or oil, then 
his power as owner is gone. This would be an adaptation to actual 
business of the spiritual truth that "to him that hath shall be given; 
but from him that hath not shall be taken away, even that which he 
seemeth to have." * *• * 



Ch. 6) UNPERGROUND WATERS 139 

An owner of land may have a deposit of coal under some portion of 
it so small in extent, or with such an inclination, as to make it impossi- 
ble for him to mine through his own tract without a greater cost to 
him than the value of the mined coal when brought to the surface. His 
neighbor may have an open mine that reaches it, and through which it 
could be brought at a fair profit. These circumstances do not affect the 
title of the owner of the coal, or confer any right on the adjoining mine 
owner ; but it is said that the oil and gas are unlike the solid minerals, 
since they may move through the interstitial spaces or crevices in the 
sand rocks in search of an opening through vvhich they may es- 
cape from the pressure to which they are subject. This is prob- 
ably true. It is one of the contingencies to which this species of 
property is subject. But the owner of the surface is an owner 
downward to the center, until the underlying strata have been sever- 
ed from the surface by sale. What is found within the boundaries of 
his tract belongs to him according to its nature. The air and the wa- 
ter he may use. The coal and iron or other solid mineral he may mine 
and carry away. The oil and gas he may bring to the surface and sell 
in like manner, to be carried away and consumed. His dominion is, 
upon general principles, as absolute over the fluid as the solid miner- 
als. It is exercised in the same manner, and with the same results. 
He cannot estimate the quantity in place of gas or oil, as he might of 
the solid minerals. He cannot prevent its movement away from him, 
towards an outlet on some other person's land, which may be more or 
less rapid, depending on the dip of the rock or the coarseness of the 
sand composing it ; but so long as he can reach it and bring it to the 
surface ij is his absolutely, to sell, to use, to give away, or to squander, 
as in the case of his other property. In the disposition he may make 
oTit he is subject to two limitations : he must not disregard his obliga- 
tions to the public, he must not disregard his neighbor's rights. If he 
uses his product in such a manner as to violate any rule of public pol- 
icy or any positive provision of the written law, he brings himself with- 
in the reach of the courts. If the use he makes of his own, or its waste, 
is injurious to the property or the health of others, such use or waste 
may be restrained, or damages recovered therefor ; but, subject to these 
limitations, his power as an owner is absolute, until the legislature shall, 
in the interest of the public as consumers, restrict and regulate it by 
statute. 

The decree of the court below is reversed, and the injunction is dis- 
solved.^^ 

13 "The acts of 1891 and 1893 are an express recognition by the legislature 
of tbe qualified owuersliip of the conunon owners in the gas in the common 
reservoir, and any act therein forbidden may be, according to the circum- 
stances, the subject of a suit at law or a proceeding in equity by the person 
injured, as well as the foundation of a public prosecution. Independently, 
however, of any statute, for the reason already stated, the common owners 
of the gas in the common reservoir, separately or together, have the right 
to enjoin any and all acts of another owner which will materially injure, or. 



liO EIGHTS INCIDENTAL TO POSSESSION (Part 1 

CHAPTER VII 
RIGHTS OF REVERSIONERS 



BAXTER V. TAYLOR. 
(Court of King's Bench, 1832. 4 Barn. & Adol. 72.) 

* * * At the trial before Parke, J., at the last assizes for the 
county of York, it appeared that the plaintiff was seised in fee of the 
closes mentioned in the declaration, which he had demised to tenants ; 
that the defendant had with his horses and cart entered upon the close 
called Stoney Butts Lane ; and that after notice had been given him by 
the plaintiff to discontinue so doing, he claimed to do so in exercise of 
a right of way. The learned Judge was of opinion, that although that 
might be good ground for an action of trespass by the occupier of the 
plaintiff's farm, it was not evidence of any injury to the reversionary 
estate, and therefore that the action was not maintainable; and he non- 
suited the plaintiff, but reserved liberty to him to move to enter a ver- 
dict. * * * 

Taunton, J.^ I think there should be no rule in this case. Young 
v. Spencer, 10 B. & C. 145, is not in point. That was an action on the 
case in the nature of waste by a lessor against his own lessee. Here 
the action is by a reversioner against a mere stranger, and_aLvery dif- 
ferent rule is applicable to an action on the case in the nature^f waste 
brought by a landlord against his tenant, and to an action brought for 
an injury to the reversion against a stranger. Jackson v. Pesked, 1 M. 
& S. 234, shews, that if a plaintiff declare as reversioner, for an injury 
done to his reversion, the declaration must allege it to have been done 
to the damage of his reversion, or must state an injury of such per- 
manent nature as to be necessarily prejudicial thereto, and the want of 
such an allegation is cause for arresting the judgment. If such an al- 
legation must be inserted in a count, it is material, and must be proved. 
Here the evidence was, that the defendant went with carts over the close 
in question, and a temporary impression was made on the soil by the 

whicti will involve the destruction of, the property in the common fund, or 
supply of gas." Manufacturers' Gas & Oil Co. v. Indiana Natural Gas & 
Oil Co., 155 Ind. 474, 57 N. E. 912, 50 L. R. A. 768 (1900). 

A. and B., owners of oil lands, each had a pump ; B.'s being more power- 
ful. A. filed a bill for an injunction against B., alleging that by the use 
of B.'s pump the oil was being drawn away from the strata of A.'s land, 
to his great damage. Held, injunction denied. Ilo Oil Co. v. Indiana Natu- 
ral Gas & Oil Co., 174 Ind. 635, 92 N. E. 1, 30 L. R. A. (N. S.) 1057 (1910). 
See Kelley v. Ohio Oil Co., 57 Ohio St. 317, 49 N. E. 399, 39 L. R. A. 705, 
03 Am. St. Rep. 721 (1897). 

1 The statement of facts is abridged and the opinions of Patterson and 
Parke, JJ., are omitted. 



Ch. T) RIGHTS OF REVERSIONERS 141 

horses and wheels ; that damage was not of a permanent but of a tran- 
sient nature ; it was not therefore necessarily an injury to the plaintiff's 
reversionary interest. Then it is said that the act being accompanied 
with a claim of right, will be evidence of a right as against the plain- 
tiff, in case of dispute hereafter. But acts of that sort could not oper- 
ate as evidence of right against the plaintiff, so long as the land was 
demised to tenants, because, during that time he had no present rem- 
edy by which he could obtain redress for such an act. He could not 
maintain an action of trespass in his own name, beca use he was, not in 
^possession o f the l and, nor an action on the case for jn jury to the re- 
version, because in point of fact there was no such permanent injury 
as would Be necessarily prejudicial to it; as therefore, he had no rem- 
edy by law for the wrongful acts done by the defendant, the acts done 
by him or any other stranger would be no other evidence of right as 
against the plaintiff, so long as the land was in possession of a lessee. 
In Wood V. Veal, 5 B. & A. 454, it was held, that there could not be 
a dedication of a way to the public by a tenant for ninety-nine years, 
without consent of the owner of the fee, and that permission by such 
tenant would not bind the landlord after the term expired. I think 
therefore that the plaintiff cannot maintctin the present action; and 
there is not doubt sufficient to induce me to think that there ought to be 
a rule nisi for a new trial. 



SIMPSON V. SAVAGE. 

(Court of Common Pleas, 1856. 1 C. B. [N. S.] 347.) 

The plaintiff' was the owner of a plot of ground in King's Lynn, in 
the county of Norfolk, upon which he built several houses in 1850, 
which were let to tenants at rents varying from £40 to i44 per annum. 
The defendant is an agricultural implement maker occupying premises 
consisting of workshops with a forge and chimney and yard closely ad- 
joining the back yards of the plaintiff's houses. The workshops, forge, 
and chimney were erected (not by the defendant) in 1851, and were a 
few feet only from the back windows of the plaintiff's houses. The 
nuisance complained of consisted in the emission of smoke from the 
forge chimney, to such an extent that gre^t quantities of soot entered 
the windows in the rear of the plaintiff's houses, dirtying and spoiling 
the furniture in the rooms, and of noises from the hammering, and 
offensive smells from the burning of old wood in the yard. It was 
proved, on the part of the plaintiff, that, in consequence of the nui- 
sance, which was of a serious character, some of the plaintiff's tenants 
had given him notice to quit (though it did not appear that any of 
them had actually quitted) ; and that, in consequence of the nuisance, 
the plaintiff's houses would not realize as much rent as they would 
otherwise have done. 



142 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

CrEsswell, J.^ This was an action for an injury to the plaintiff's 
reversion by erecting a manufactory on land adjoining the plaintiff's 
houses, and causing smoke to issue from a chimney, and making loud 
noises. The plaintiff also complained of a nuisance arising from the 
lighting of wood fires in the yard adjoining the factory. 

The cause was tried before Lord Campbell, at the last assizes for 
Norfolk, when his lordship ruled that the nuisances merely of a tem- 
porary nature, such as the wood fires and the noises, would not sup- 
port the action : but, with reference to the smoke issuing from the foun- 
dry chimney, he thought the case distinguishable from Mumford v. The 
Oxford, Worcester, and Wolverhampton Railway Company, 1 Hurlst. 
& Norm. 34, and that there was evidence to go to the jury to prove 
injury to the reversion : but he reserved leave to the defendant to move 
to enter a nonsuit, if the court should be of opinion that there was no 
injury to the reversion. 

A rule nisi having been obtained accordingly, cause was shown in 
the course of the last term, before my Brothers Williams and Crowder 
and myself. 

The only point reserved for our consideration, was, whether there 
was evidence for the jury of any injury to the reversion in the prem- 
ises of which the plaintiff was owner, but not the occupier, they being 
let to tenants. * * * 

On the argument, it was insisted that the injury done by the defend- 
ant need not be of a permanent nature, and that it was sufficient if prov- 
ed to be of such a description as would cause the reversion in the prem- 
ises to sell for a smaller sum if brought into the market. 

After considering the authorities, we are of opinion, that, since, in 
order to give a reversioner an action of this kind, there must be some 
injury done to the inheritance, the necessity is involved of the injury 
being of a permanent character. 

The earliest instances of such an action are, cutting trees, subverting 
the soil, and erecting a dam across a stream so as to cause it to flow 
over the plaintiff's land. In the two former cases, the thing done was 
not removable or remediable during the term : in the third, it was ; but, 
being of a permanent character, it was to be assumed that it would re- 
main, and therefore was treated as an injury to the inheritance. 

The decision in Jessel v. Gifford, 4 Burr. 2141, falls within the same 
principle. A window was obstructed; the obstruction was of a per- 
manent character, and would remain, unless something was done to 
remedy the evil. Tucker v. Newman, 11 Ad. & E. 40 (E. C. L. R. 
vol. 39), 3 P. & D. 14, belongs to the same class. 

Now, the building erected in this case did not injure the plaintiff's 
mheritance : but it is said that the use made of it did. The real sub- 
ject-matter of complaint, therefore, is, not the erection of the building, 
but causing smoke to issue from it. If the fires had not been made by 

'* Part of the opinion is omitted. 



Ch. 7) EIGHTS OF REVERSIONERS 143 

the defendant, he could not have been sued for an injury either to the 
possession or the inheritance : Rich v. Basterfield, 4 C. B. 783 (E. C. 
L. R. vol. 56). Now, making tlie fires and causing smoke to issue, 
was not an act of a permanent nature. It is very like the case of Bax- 
ter V. Taylor, 4 B. & Ad. 12 (E. C. L. R. vol. 24), where a person 
trespassed, asserting a right of way; and not distinguishable from 
Mum ford v. The Oxford, Worcester, and Wolverhampton Railway 
Company, where the action was brought against the defendants as oc- 
cupiers of certain sheds, for making noises therein, which caused the 
plaintiff's tenants to give notice to quit. 

The real complaint by the reversioner is, that he fears the defendant, 
or some other occupier of the adjoining premises, will continue to make 
fires and cause smoke to issue from the chimney : and, if the reversion 
would sell for less, that is not on account of anything that has been 
done, but of the apprehension that something will be done at a future 
time. 

According to the authorities, we feel bound to say that this is not 
such an injury as will enable the reversioner to maintain an action. The 
rule for entering a nonsuit must, therefore, be made absolute. 

Rule absolute.3 ^ ;^^ B.^f 6^- 

GREEN V. SUN CO. 
(Superior Court of Pennsylvania, 1907. 32 Pa. Super. Ct. 521.) 

Trespass to recover damages for injuries to real estate resulting from 
fumes from an oil refinery. 

Henderson, J.* One of the plaintiff's complaints was that the 
defendant wrongfully and injuriously constructed its works and neg- 
ligently maintained and carried on its business, as a result of which the 
plaintiff's buildings were damaged. No evidence of negligence was in- 
troduced, however, the plaintiff relying on testimony tending to estab- 
lish the existence of a nuisance in the business which the defendant 
conducted. There is also an averment that the atmosphere was made 
unwholesome and injurious to the plaintiff's tenants. The latter charge, 
however, was eliminated from the case by the court, together with all 
the evidence relating thereto, the issue being confined to the inquiry 
whether the defendant maintained a nuisance and whether that nui- 
sance was injurious to the buildings occupied by the plaintiff's ten- 
ants. * * * 

The plaintiff does not seek to recover damage for the injury to the 
tenants. His allegation was that there was a physical injury to the 
property. The damage was to the freehold and not to the tenants' oc- 
cupancy. For such an injury the landlord may maintain an action not- 
withstanding the occcupancy by a tenant. Devlin v. Snellenburg, 132 

3 Ace: Mumford v. Oxford, etc., Ry. Co., 1 H. & N. 34 (1856); Mott v. 
Shoolbred, L. R. 20 Eq. Cas. 22 (1875). 
* The stateuaent of facts and part of ttie opinion are omitted. 



144 RIGHTS lAXIDEXTAL TO POSSESSION (Part 1 

Pa. 186, 18 Atl, 1119. There is no evidence that the tenants were 
hound to repair, and certainly no obhgation rested on them to make 
reparation of the injury alleged to have been caused by the defendant. 
Earle v. Arbogast, 180'Pa. 409, 36 Atl. 923. The plaintiff is none the 
less entitled to recover even if he has not actually made the repairs. 
The value of his property is reduced to the extent of the injury wheth- 
er he should determine to apply the amount of his damages to the im- 
provement of his property or keep the money in his pocket. If his 
property had been wholly destroyed by the unlawful and injurious act 
of the defendant he would be entitled to compensation whether he re- 
built or not. 

The declaration charged negligence, but it was not necessary that 
the plaintiff offer evidence in support of this averment. A nuisance is 
sufficiently charged and the question of negligence is not necessarily 
involved. Hauck v. Tidewater Pipe Line Co., 153 Pa. 366, 26 AH. 
644, 20 L. R. A. 642, 34 Am. St. Rep. 710; Stokes v. Penna. R. R. Co., 
214 Pa. 415, 63 Atl. 1028. * * * 

The assignments are all overruled and the judgment affirmed.^ 

5 Ace: Shelf er v. City of London Electric Co., [1895] 1 Ch. 287. 

Plaintiff complained "that the defendant by means of certain erections and 
obstructions caused the water of a certain stream to run out of its natural 
course, into and upon land of plaintiff, and to overflow same, and thereby 
rotted, spoiled, damaged, washed away, and destroyed the grass and herbage 
of the plaintiff and also made the land boggy, miry and rotten, and greatly 
deteriorated in value: by means of which plaintiff has been injured in his 
reversionary estate of said lands." The court held this declaration to be 
good on demurrer and said: 

"If the plaintiff had only averred that the defendant had turned the wa- 
ter upon and overflowed his land, and thereby rotted, destroyed, and washed 
away the grass there being and growing, he might have proved on the trial 
such an extent of injury to his land and meadow grounds, as seriously af- 
fected his reversionary estate. It is no argument to say that the tenant, if 
the action had been brought by him, might have declared in the very lan- 
guage used in this declaration. This is certainly true. There are many 
injuries that may be done to lands, which altect, as well the landlord as 
the tenant, and for which the former may have an action on the case, and 
the latter an action of trespass ; and in which the wrongful acts may be, 
and sometimes must be, described in the same way. For instance, digging 
up the soil, cutting down fruit, or timber or ornamental trees ; or breaking 
or destroying the dwelling house ; and in short, whatever amounts to waste, 
is an injury to both, and may be described by both in the same way. There 
are other injuries that, from their very nature, can only be prejudicial to 
the possession ; -such as cutting or trampling down the grass or grain grow- 
ing ; or gathering and carrying away fruit from the orchard ; and there- 
fore, if the landlord were to declare for such injury, it would be had on 
demurrer, even though he should aver that it was done to the prejudice of 
his reversion, since such averment would be inconsistent with, and in fact 
contradictory to his own statement of the trespass." Potts v. Clarke, 20 iN, 
J. Law, 536, 543 (1845). 

Injuries to the reversion were found in Tucker v. Newman, 11 Adol. & El. 
40 (1839) ; Kankakee & S. R. Co. v. Horan, 131 111. 288, 23 N. E. 621 (1890) ; 
Arneson v. Spawn, 2 S. D. 269, 49 N. W. 1066, 39 Am. St. Rep. 783 (1S91). 

The reversioner was denied relief in Cooper v. Grabtree, 20 Ch. Div. 589 
(1882). 

A. was the owner of a mill and mill privilege on a certain river. B. had 
constructed a dam above A.'s mill for the purpose of raising a pond as a 



Ch. 7) EIGHTS OF REVERSIONERS 145 

PARK V. WHITE. 
(Chancery Division of the High Court of Ontario, 1S93. 23 Ont. 611.) 

This was an appeal by the defendants from the judgment at the trial, 
in an action brought by William Park against Thomas L. White and 
Sarah White, his wife, to restrain a nuisance occasioned by smells 
arising from priv y pits located near the walls of the plaintiff's house. 

•It appeared that about seven years ago, when the locality was not so 
thickly settled, the defendants built a row of cottages on the rear of 
their lot, and common closets were constructed for the use of the oc- 
cupants. Subsequently the plaintiff became the owner of the lot im- 
mediately adjoining, and constructed a row of cottages with the rear 
wall 18 inches from the privy pits. The plaintiff complained that the 
pits were a nuisance to the occupants of the cottages belonging to him; 
and that some of his tenants had left, and some were threatening to 
leave on account of the bad smells arising therefrom. * * * 

Boyd, C.** The plaintiff's pleadings are grounded on his ownership 
of jand_jwhich_js injuriously affected by disagreeable and noxious 
_odQiu::a arising from privy pits on the land of the defendant. He does 
not sue as reversioner, but alleges that his tenants have from time to 
time vacated his houses, and that by the frequent remarks of tenants, 
his houses are getting an ill repute, and that he fears he will be unable 
to rent them, all on account of. the filthy condition and foul smells of 
and from the said privy pits, and he further alleges that the tenants 
now in occupation threaten to leave if the said nuisance is not abated. 

The chief ground of contention was on the issue, nuisance or no nui- 
sance, and the plaintiff has succeeded. Questions were submitted and 
answered, and on the answers merely and only, the defendant now 
moves against the judgment directed to be entered for the plain- 
tiff * * * 

It is urged again that the plaintiff had no right of action. Some cases 
were cited tojhe effect that a reversioner pure and simple would have 
no right of action in respect of a mere temporary nuisance. The most 
Inotable case on this head is Jones v. Chappel, L. R. 20 Eq. 539. But 

storage reservoir for its waterworlvs. The water was talien from tliis dam 
by the conduits of B. vinder a claim of right and to such an extent as to 
damage the mill privilege. In an action of tort by A. against B. for so di- 
verting the water, held, although A.'s mill is in possession of a tenant, A. 
can recover for such constant withdrawals of water as an injury to his re- 
version. Lund v. City of New Bedford, 121 Mass. 286 (1876): Ace: Heil- 
' bron v. Last Chance Water Ditch Co., 75 Cal. 117, 17 Pac. 65 (1888). 

Where there is a damage to the reversion, as by cutting down- trees, 
where the land is in the possession of a tenant at will, the reversioner may 
maintain trespass quare clausum f regit. Starr v. Jackson, 11 Mass. Sl'J 
(1814). 

6 The statement of facts is abridged and part of the opinion of Boyd, C, 
and the opinion of Meredith, J., are omitted. 

BiG.RlGHTS — 10 



146 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

the neat point in that was, the plaintiffs in an action to restrain a nui- 
sance of a temporary nature must be the occupiers, and not merely the 
reversioners of the property affected by the nuisance. Had a tenant 
been added as coplaintiff, the action would have succeeded. This course 
was taken during the course of the trial in Broder v. Saillard, 2 Ch. 
D. at page 698, and the trial judge in this case held in suspense a simi- 
lar application, which he did not deem necessary to act upon. But as 
a matter of precaution the permission to amend should now be given 
as the whole matter in controversy was as to the existence of a nui- 
sance. 

I should deem the nuisance here to be not of a temporary character, 
but of such a recurring nature as to be practically continuous and per- 
manent. Draper v. Sperring, 4 L. T. N. S. 365. If so, the reversion 
is prejudicially affected because the injury was likely to last in the 
ordinary course of things down to the time when the reversion would 
come into possession. In fact, it was said that some of the short ten- 
ancies had determined ; and as to the damages given, it was in respect 
of a vacant house. 

The frame of action without amendment seems justified by such cas- 
es as Wilson v. Townsend, 1 Dr. & Sm. 324; Tucker v. Newman, 11 
A. & E. 40; Swain v. The Great Northern R. W. Co., 4 DeG. J. & S. 
at p. 215; Smith v. Humbert, 2 Kerr (New Brunswick) 602; and 
Cleeve v. Mahany, 9 W. R. 882. This last case is similar to the pres- 
ent, and Kindersley, V. C., said "the plaintiff had not suffered per- 
sonally, except that he said he could not let his house ; and if that loss 
ensued by reason of the continuance of the operation (of brickburning) 
then he might be entitled to the injunction." Page 883. 

The motion should be dismissed with costs. '^ 

7 "It appeared in evidence, as far as I could gather, that at the time when 
the bill was filed, but certainly shortly before, the two houses were let to 
weekly tenants, and they are both still so let and fully occupied. Now, as 
I understand the doctrine in Simpson v. Savage, 1 C. B. (N. S.) 347 (1856), 
the landlord in such a case cannot bring an action. The injury is a tem- 
porary nuisance, because the saws might be stopped and the steam engine 
might cease working at any moment. It is only an injury to the occupier, 
and the landlord cannot bring an action, because before his estate comes 
into possession the nuisance may have ceased, or the person committing it 
may choose to make it cease the moment the estate comes into possession. 

"Another ground of action on the part, of the landlord might be that the 
existence of a nuisance of a temporary character would render it more diffi- 
cult for him to let to a future tenant or to sell. But that is said not to 
be a good ground of action, because the theoretical diminution of the value 
of the property cannot be taken into account, inasmuch as the purchaser or 
the new occupier would have a right to stop the nuisance, so that he ought 
not to give less on that account than he otherwise would. It appears to 
me I am not able to overrule Simpson v. Savage, and that the principles up- 
on which it was decided apply as much to weekly tenancies as to any other 
tenancies. 

"But then it is said that, if that is so, no relief at all can be obtained, and 
Mr. Jason Smith said that there was some doctrine of this court by which 
a weekly tenant could not have an injunction. So far as I am aware, that 
aas never been decided, but I should not find the slightest difficulty myself, 



Ch. 7) RIGHTS OF REVERSIONERS 147 

MILLER V. EDISON ELECTRIC ILLUMINATING CO. 

(Court of Appeals of New York, 1906. 184 N. Y. 17, 76 N, E. 734.) 

The plaintiffs, by the institution of this action, have sought to re- 
strain the defendant from' continuing a nuisance, created through the 
maintenance and operation of a plant for the supply of electric light 
and power, whereby their property in neighboring dwelling houses 
has been injuriously affected. They, further, demanded judgment for 
damages already sustained. The property was in the occupancy of 
a tenant, holding under a lease by the plaintiffs. The trial court for- 
mulated its decision in findings of facts and conclusions of law, and 
the judgment recovered by the plaintiffs thereupon was afifirmed by 
the Appellate Division. The facts found, so far as they need to be 
mentioned, show that the plaintiffs became the owners of the premises 
in question some years prior to 1888; in which year the defendant 
constructed, upon premises adjacent to those of the plaintiffs, a power 
house, equipped with machinery and appliances necessary for the pur- 
pose of generating electricity to be supplied to the public for lighting, 
or for power. In 1890, the plaintiffs leased their property for a term 
of five years; receiving a rental of $15,000 a year and certain privi- 
leges. Shortly prior to the expiration of the term of this lease, the 
premises were again leased to the same tenant for another term of 
five years from May 1, 1895, at the rental of $12,000 a year, with the 
reservation of the same privileges as in the previous lease. In 1900, 
the premises were, again, leased at a less rental, with the reservation 
of some additional privileges, and with a right to the lessors to share 
in the profits of the hotel business conducted by the lessee. 

After the construction of its power house, the defendant's operations 
caused "soot, cinders, ashes, steam, or water condensing from steam," 
to be discharged upon plaintiffs' premises. Noises, jars, and vibrations 
resulted from the operation of the machinery, which impaired the 
peaceful enjoyment of the premises and affected their rental value. 
The court, further, found that, as the machinery was used at the time 
of the trial, no injury was being worked to the plaintiffs' property and 
"that it was improbable that it would be so used as to work injury in 
the future," but that, as the plaintiffs wert entitled to the equitable 
relief prayed for when the action was commenced, the court would re- 
tain the case and award to them their damages. Judgment was di- 
rected for the plaintiffs for such damages, in the amount of $4,500. 
The court decided that the plaintiffs failed to establish that they suffer- 
ed any damage after the year 1900 and, though the rental for the 
premises, reserved to them in the new lease of that year, was less than 

if an occupier, being a weekly tenant, and his landlord were to join in a 
suit to restraii;i a nuisance, in granting them an injunction." 

Jessel, M. R., in Jones v. Chappel, I.. R. 20 Eq. Cas. 539, 543 (1875). See 
Bell V. Midland Ry. Co., 10 C. B. N. S. 287 (18G1). 



148 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

that for the prior term, the difference could be accounted for otherwise 
than by charging it to the defendant's acts. This was explained in 
the changed character of the locality, and in the fact that the lease 
provided, not only that the plaintiffs should have a share of the profits, 
but that they should enjoy greater privileges than formerly. These 
findings of the trial court have sufficient support in the evidence. 

CuLLEN, C. J", (after stating the facts). I adopt Judge Gray's 
statement of facts, and I agree with him in the position that this action 
was properly brought in equity, that it was triable by the court, and that 
the defendant was not entitled to a jury trial as of right. I am unable, 
however, to concur in the view that the plaintiffs were properly award- 
ed damages for diminution in the rental value of the property. The 
plaintiffs were in possession of the premises during no part of the 
period for which damages have been recovered, but the same were in 
the occupation of their tenants under a lease for a term of years. One 
of these leases expired during the existence of the nuisance, and, as 
the trial court has found, by reason of the nuisance the plaintiffs 
were compelled -to rent the premises for a new term at a reduced rent. 
It is for this loss of rent that damages have been awarded. The ques- 
tion as to which party, the landlord or his tenant, is entitled to recover 
for depreciation of the rental value by the existence of a nuisance has 
involved the courts in much perplexity. In the elevated railroad cases 
it has been settled that, in the case of a lease made after the erection 
and operation of the railroad, the landlord, not the tenant, is entitled 
to recover for such depreciation. Kernochan v. N. Y. Elevated R. R. 
Co., 128 N. Y. 559, 29 N. E. 65. 

In the Kernochan Case there is an elaborate discussion of the ques- 
tion by Chief Judge Andrews. A careful analysis of the opinion of 
the learned judge will show that the decision proceeded on the ground 
that the elevated road was a permanent structure and intended to be 
so maintained ; that it was constructed in the street under legislative 
authority ; and that as ample authority was granted to condemn any 
property rights on which it might trespass, the lessor had "no absolute 
remedy to compel the removal of the structure, since the right of con- 
demnation can at any time be exercised by the defendants." The learn- 
ed judge said : "It is also a necessary deduction from the circum- 
stances attending the making of ordinary leases of improved property, 
executed after the construction of the elevated railroad, that the 
right to recover damages is vested exclusively in the lessor." To the 
doctrine of that case the court has steadily adhered. When, however, 
the doctrine was invoked to defeat the right of a tenant to recover dam- 
ages against the present defendant for the very same acts which con- 
stitute a nuisance in the case now before us, it was held that the rule 
in the elevated railroad cases did not apply. In Bly v. Edison Electric 
111. Co., a tenant, hiring after the nuisance was created, recovered the 
depreciation in the rental value of the premises. 

The Appellate Division, citing the authority of the Kernochan Case, 



Ch. 7) RIGHTS OF REVERSIONERS 149 

reduced the award to a nominal sum, holding that the tenant was not 
entitled to recover diminution in rental value. 54 App. Div. 427, 66 
N. Y. Supp. 72)7 . On appeal to this court the judgment of the Appellate 
Division was reversed, though a new trial was ordered because the 
trial court had awarded damages for a period anterior to 6 years 
before the commencement of the action. 172 N. Y, 1, 64 N. E. 745, 
58 L. R. A. 500. This court said, per Werner, J. : "We think the 
Kernochan Case has no application to a case like the one at bar, and 
this without reference to the fact that it appears affirmatively that 
the rental paid by the plaintiff was the same during the existence of 
the nuisance as it was before. The elevated railroad cases, to which 
class the Kernochan Case belongs, are sui generis" They are governed 
by principles which apply to no other class of cases." The elaborate 
discussion of the question by Judge Werner leaves nothing to be now 
added. It is sufficient to say that that case expressly held that a ten- 
ant under a lease made during the existence of the nuisance was en- 
titled to recover the depreciation of the value of the occupation of the 
premises. 

It is said to be the settled rule of law "that where the wrongful act 
affects different interests in the same property, the owner of each 
interest may have his separate action against the wrongdoer. Landlord 
and tenant have separate assets, and each, if injured therein, may 
have redress, the one for the injury to the reversion, the other for 
the injury inflicted in diminishing his enjoyment "^of the premises." 
This statement is doubtless correct, but under this rule "to entitle a 
reversioner to maintain an action, the injury must be necessarily of a 
permanent character, and that a presumed intention to continue the 
nuisance is not sufficient, even where there is evidence that the prem- 
ises would sell for less if the nuisance were continued." Mott v. Shool- 
bred, opinion of Sir George Jessel, M. R., 20 Eq. Cases, 22. See, also, 
cases cited in Judge Werner's opinioti. Here the only injury found by 
the trial court is to the enjoyment and occupation of the premises. 
That does not affect the reversioner. Had the trial court found that 
the operation of defendant's light plant cracked the walls or injured 
the structure, such damage would be of a permanent character and 
the reversioner entitled to recover. In the present case, however, not 
only is there no permanent injury to the plaintiffs' buildings, but the 
defendant's plant did not constitute the nuisance, but its operation, and 
such operation was not necessarily or inherently injurious because 
the trial court found that at the time of the trial its operation did not 
damage the plaintiffs. Judge Andrews said in the Kernochan Case: 
"We should be very reluctant to make a decision which would expose 
the defendants to a double action in cases like this," and I imagine 
that the reluctance still continues. Nevertheless if the judgment be- 
fore us is affirmed the defendant will be subjected to a double re- 
covery against it, for under the Bly Case the tenant is also entitled to 
recover, if in fact he has not already recovered, the diminution in the 



150 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

rental value during the same period for which the plaintiffs are award- 
ed damages for such diminution. It is not a case like that suggested 
where the same act has caused injury to different persons and each 
recovers for the injury to himself; but here two parties will recover 
for exactly the same injury. 

I may suggest this further distinction between the elevated railroad 
cases and that of a casual temporary nuisance. In the Kernochan Case 
the defendant upon satisfactorily compensating the landlord could 
continue the operation of its road despite the complaint of his tenant. 
Here, no release from, or settlement with, the landlord could have 
prevented the tenant from restraining the operation of the defendant's 
plant. Moreover, the lease by the plaintiffs was for a term of years. 
The rights of the tenant and landlord then became fixed, and the dam- 
age to the plaintiffs accrued at once. It was the diminished rent during 
the demised term. Had the defendant ceased the operation of its 
plant the day after the lease, the plaintiffs' injury would have been as 
great as if it had maintained the operation during the whole demised 
term. Yet I apprehend no one will contend that the defendant would 
have been liable for the whole period. But if we should assume that 
such a contention would be well founded the result would be that the 
day after the lease the operation of the plant might be stopped at the 
suit of the tenant, and yet the defendant remain liable to the landlord 
for the loss of rent for the whole term of the lease. In other words, 
the defendant's liability would depend not on the injury done by its 
trespass or nuisance, but on the manner in which the owner might deal 
with his property. The decision in the Bly Case did not pass this court 
without discussion. On the contrary, there was a vigorous dissent 
by Judge Haight (concurred in by two other members of the court), 
who contended that the loss in rental value went to the landlord, not 
to the tenant. The force of this position was appreciated by the ma- 
jority of the court which, when it decided that the tenant could re- 
cover for that loss, substantially decided that the landlord could not. 

I think the judgment should be reversed, and a new trial granted, 
costs to abide event. 

Gray, J. (dissenting),^ In my opinion, the right of the plaintiffs 
to bring and maintain this action is clear, and the defendant's appeal 
should not be sustained. The plaintiffs were shown to have been in- 
jured by the defendant's acts in the depreciation of the value of the 
property, as shown by the diminished amount of the rent for the 
premises reserved by the lease of 1895. For the prior term of five 
years from 1890, they had been receiving $15,000 a year as rent; 
while, for the succeeding term of five years from 1895, they were to 
receive only $12,000 a year. That represented a total loss to the owner 
of $15,000 for the new term and furnished a basis of injury, upon 
which this action was commenced in 1898. 

8 Part of the disseutiug opinion of Gray, J., is omitted. 



Ch. 7) RIGHTS OF REVERSIONERS 151 

I consider it to be a settled rule of law that, where the wrongful act 
affects different interests in the same property, the owner of each 
interest may have his separate action against the wrongdoer. Lessor 
and tenant have separate estates and each, if injured therein, may have 
redress; the one for the injury to the reversion, the other for the 
mjury inflicted in diminishing his enjoyment of the premises. This 
rule and its reason have been, heretofore, discussed with such care, 
that I deem it necessary, only, to refer to the recent cases of Kernochan 
V. N. Y. Elevated R. R. Co., 128 N. Y. 559, 29 N. E. 65 ; Hine v. 
Same, 128 N. Y. 571, 29 N. E. 69; Kernochan v. Manhattan Ry. Co., 
161 N. Y. 345, 59 N. E. 906; and Ely v. Edison Electric 111. Co., 172 
N. Y. 1, 64 N. E. 745, 58 L. R. A. 500. If it be a nuisance, which is 
the subject of complaint as injuring adjacent property interests, the 
question is, when the owner not in possession sues, whether it has di- 
minished the rental value of his property ; the difference in that re- 
spect being the measure of his right to damages. When the tenant sues, 
his right to recover rests upon the ground that his occupancy is dis- 
turbed and the full enjoyment of his possession of the premises is 
prevented by the common nuisance. Francis v. Schoellkopf, 53 N. Y. 
152; Hine v. N. Y. Elev. R. R. Co., supra; Ely v. Edison Electric 
111. Co., supra. In the Ely Case the question discussed was that of the 
tenant's right to maintain an action to abate a nuisance and for dam- 
ages, when in under a lease made during the existence of the nuisance. 
It was held, upon a careful review of the authorities, in effect that as 
there was no justification for the maintenance of that which was a 
nuisance and, hence, an unreasonable and a wrongful use by the de- 
fendant of its property, the tenant of the property injuriously affected 
was not deprived of the right to bring an action by reason of having 
acquired the lease thereof, during the existence of the nuisance, at a 
diminished rental. The right to have compensation for injuries 
actually sustained and to have the nuisance abated could not thereby 
be affected. It was upon that proposition that the judges of this 
court divided in opinion. As to the right of the owner of property, 
though not in possession, to maintain an action to restrain the continu- 
ance of a nuisance, w^hich threatens injury to his reversionary rights, 
and to recover for any damage which he may be able to show that he 
has already sustained in that respect, I think there should be no doubt. 

It is argued that, as the nuisance arises from the method of defend- 
ant's operation of the power house, presumptively, it is but casual and 
temporary. That is to say, though the defendant's building and me- 
chanical plant were permanent structures, the operation of the ma- 
chinery in a way intolerable and injurious to others, as complained of, 
would not be presumed to continue. Assuming the correctness of the 
proposition, how does it affect the principle upon which the legal right 
of the plaintiffs was founded? They, certainly, had the right to pro- 
tect their reversionary interest against injury. A casual, or temporary, 
trespass, or nuisance, if the latter is of a casual nature, it is true, usual- 



152 RIGHTS INCIDENTAL TO POSSESSION (Part 1 

ly affects the possession of the property, and therefore gives a right 
of action to the lessee. But for a wrongful act, which diminishes the 
rental value of the property, and which, from the circumstances, may, 
fairly, be regarded as likely to continue, whether it be in the nature 
of a trespass, or of a nuisance, an action will lie by a reversioner to 
redress the wrong ; although the lessee may, equally, have his action to 
redress the wrong inflicted upon his right to peaceable and com- 
fortable possession. See Kernochan Case, 128 N. Y. 559, 566, 29 N. 
E. 65, and the English cases cited in the opinion, as well as the Bly 
Case, supra. 

In this case the rental value of the plaintiffs' property, when the 
second lease was made in 1895, was diminished to the extent of $3,000 
a year, under conditions of lease similar to those of the preceding, and, 
according to the findings of the trial court, the damage to the plain- 
tiffs from defendant's operations, only, ceased to be inflicted in 1900. 
Thus, the defendant's use of its power house, in a way injurious to 
others, had continued for many years after its construction. It had 
so seriously affected the rental value of the plaintiff's property as to 
compel them to accept a reduced rental in 1895 for a further term and 
when this action was commenced, in 1898, the threat in the situation 
was the same. However, technically, the nuisance may be termed casu- 
al, as caused by the methods of the defendant in operating its power 
house, it was a very real menace to the plaintiffs' interests as property 
owners. The case, in my judgment, came within the established rule 
which allows an action to a lessor, whose reversion is injuriously af- 
fected, to abate the nuisance, by restraining its continuance. To say 
that the nuisance was a casual or a temporary one is an answer no more 
satisfactory than it is complete, legally, to the statement of the owners 
that they had suffered injury in the past by its maintenance and would 
suft'er in the future unless it was restrained. * * * 

For these reasons, I advise the affirmance of the judgment. 

Judgment reversed, etc.* 

9 See, in addition to the cases cited in opinions, Rust v. Victoria Dock Co., 
36 Ch. D. 113 (1886) ; Central R. Co. v. English, 73 Ga. 366 (1884) ; Baker v. 
Sanderson, 3 Pick. (Mass.) 348 (1825) ; Sumner v. Tiletson, 7 Pick. (Mass.) 198 
(1828) ; Eno v. Del Vecchio, 13 N. Y. Super. Ct. 17 (1856). 

The city of New York in 1885 placed a pumping station on land owned 
by it. In 1898 the plaintiff took a lease of a tract of land near by for a 
term of five years. He now sues the city for damages to his land caused by 
the action of the pumps in drawing water from the surface and subsurface 
of his premises. Held he has no cause of action. Sposato v. City of New 
York, 75 App. Div. 304, 78 N. Y. Supp. 168 (1902), affirmed 178 N, Y. 583, 
70 N. E. 1109 (1904). Compare Halsey v. Lehigh Val. R. Co., 45 N, J. Law, 
26 (1883). 



PART II 
RIGHTS IN THE LAND OF ANOTHER 



CHAPTER I 
• PROFITS 



MOUNTJOY'S CASE. 

(Common Pleas, 15S3. Co. Lit. 164b.) » 

The Lo rd Mountjoy, s eised of the mannor of Canford in fee, did by 
deed indented and inrolled bargaine and sell the same to Browne in 
fee , in which indenture this clause was contained. Provided alwayes, 
and the said Browne did covenant and grant to and with the said Lord 
Mountjoy, his heires and assignes, that the Lord Mountjoy, his heires 
and assignes, iBisl}t_4iS^9?'_9ISLini the lands (which were greate wasts) 
parcell of the said mannor, and to dig turfe also for the making of 
allome. And in this case tliree poynts were resolved by all the judges. 
First that this did amount to a grant of an interest and inheritance to 
the Lord Mountjoy, to digge, &c. Secondly, that notwithstanding this 
grant, Browne his heires and assignes might dig also, and like to the 
case of common sauns nomber.^ Thirdly, that tlie Lord Mountjoy 
might assigne his whole interest to one, two, or more; but then, if 
there be two or more, they could make no division of it, but work to- 
gether with one stock; neither could the Lord Mountjoy, &c. assigne 
his interest in any part of the wast to one or more, for that might 
worke a prejudice and a surcharge to the tenant of the land; and 
therefore if such an incertaine inheritance descendeth to two copar- 
ceners, it cannot be divided betweene them.^ 

] S. c. 1 And. 307 ; Godbolt, 17. 

2 Ace: Chatham v. Williaiiison, 4 East, 469 (1S04). 
3 Ace: Leyman v. Abeel, 16 Johns. (N. Y.) 30 (1819). 

a53) 



154 RIGHTS IN THE LAND OF ANOTHER (Part 2 

DOWGLASS V. KENDAL. 

(Court of King's Bench, 1609. Cro. Jac. 256.) 

Trespass, for taking and" carrying away thirty loads of thorns of the 
plaintiff's, by him cut down, and lying upon his land at Chipping- 
warden, in a place called the Common Waste. 

The defendant justifies, because the place where, &c. is an acre, and 
that he is seised in fee of a messuage and three acres of land in Chip- 
pingwarden aforesaid; and that he and all whose estate it was, &c. 
have used from time to time to cut down and takes omnes spinas cres- 
centes upon the said place, to expend in the said house, or about the 
said lands, as pertaining to the said house and lands; and so justi- 
fies, &c. 

The plaintiff shews, that Sir Richard Saltington was seised in fee of 
the manor of Chippingwarden, whereof the place where, &c. is parcel, 
and granted license to him to take the thorns ; whereupon he cut them 
down, and the defendant afterwards took them. 

Upon this plea it was demurred ; and, after argument at the Bar, 
adjudged for the defendant: for, as this case is, the lord may not cut 
down any thorns, nor license any other to cut them down ; for the de- 
fendant prescribeth to have all the thorns growing upon that place, and 
this prescription excludes the lord to take any thorns there : but if 
he had claimed common of estovers only, then if the lord has first cut 
down the thorns, the commoner might not take them ; and if he had 
cut down all the thorns, the commoner might have had an assise ; but 
here he prescribes to have all, which is admitted by the replication, and 
is well enough ; and so hath been resolved in one Kentick's Case, Cro. 
Jac. 208; that one may prescribe to have the sole pasturage in such a 
place, from such a time to such a time, against th€ owner of the soil, 
who shall not meddle therewith during that time. It was also held, al- 
though he doth not prescribe that it was an ancient house to which, &c. 
yet it is good enough; and so is the usual prescription for common, 
and shall be so intended. 

Wherefore it was adjudged for the defendant.* 

4 "It has been long since settled, that a man may prescribe to have the 
sole and several pasture, vesture, or herbage for a limited time in every 
year, in exclusion of the owner of the soil. Fitz. Prescription, 51 Co. Litt. 
122. a. 2 Roll. Abr. 267 (L), pi. 6. Winch's Rep. 6. Sir George Spanke's 
case. S. C. Hutt. 45. Pitt v. Chick. But it was for some time a question 
whether a prescription for a sole and several pasture, &c. in exclusion of the 
owner of the soil for the whole year was good. In Vaugh. 251. North v. 
Coe. S. C. 1 Lev. 253. the court of Common Pleas was equally divided upon 
it; but in the principal case, the court of K. B. inclined to think the pre- 
scription might be supported; and in Hopkins v. Robins, 2 Saund. 324. S. C. 
2 Lev. 2. Pollexf. 13. 1 Mod. 74. it was adjudged that the prescription wns 
good ; fo^r it does not exclude the lord from all the profits of the land^ as he 
is entitled to the mines, trees, and tjuarries: and tlie law has been so con- 
sidered ever since." Potter v. North, 1 Wm. Sauiid. 353, note 2 (1669). 

The latter part of the note by Serjeant Williams contains a discussion of 
the right of self-redress by the commoner. See, also, Hope v. Osborn, L1913J 
2 Ch. 349. 



Ch. 1) PROFITS 155 

TOTTEL V. HOWELIv. 

(Court of Common Pleas, 1595. Noy, 54.) 

It was held by the Court, that herbagium for years, cannot be grant- 
ed without deed. Note 17 K. 4, 6.^ 



GRUBB V. BAYARD. 

(Circuit Court of the United States. E. D. Pennsylvania, 1851. 2 Wall. Jr. 
81, Fed. Cas. No. 5849.) 

David Foree, by deed of indenture made in 1769, reciting his title 
to 302 acres of land, grants, bargains and sells 20 acres of it which are 
described, to William Bennet ; leaving 282 acres still his own proper- 
ty, in regard to which the indenture contained the the following cove- 
nant: "And the aforesaid David, for himself, his heirs, executors and 
administrators, doth covenant, promise, grant and agree to and with 
the aforesaid William, his heirs and assigns, that he, the said William, 
his heirs and assigns, shall and may, from time to time, and all time 
hereafter, dig, take and carry away all iron ore to be found within the 
bounds of the said David's tract of land containing 282 acres, provided 
he, the said William, his heirs and assigns, pay unto the said David, 
his heirs or assigns, the sum of six pence, Pennsylvania currency, per 
ton, for every ton taken from the premises of 282 acres aforesaid." 
The deed was a technically and well drawn instrument containing all 
the formal or orderly parts of a deed enumerated by Lord Coke (Co. 
Litt. 6a) ; and the covenant above quoted followed after the habendum 
and tenendum. Berinet being dead, the plaintiff purchased the inter- 
ests of ninety-four of ninety-nine of his representatives, and the de- 
fendant having become owner of the 282 acres reserved, and having 
taken away many thousand tons of iron ore, this action on the case 
was brought by the plaintiff against him. 

It was admitted that the ore taken by the defendant was found, min- 
ed and dug by himself or his servants : and it appeared that neither 
Bennet nor his heirs, nor the plaintiff had ever had actual possession, 
use, occupation or enjoyment of the right granted by the deed of 1769, 
nor been in any way hindered in the enjoyment of it otherwise than 
by the defendant's tal<ing ore in the manner just stated. The declara- 
tion which contained numerous counts, founded the plaintiff's right to 
recover on his being "lawfully possessed of a certain right and privi- 
lege to dig, take, and carry away^fron ore to be found within the bounds 
of a certain tract of land to the e xclusion of the defendant," or as be- 
ing "lawfully possessed of a certain exclusive right or several privi- 

5Acc.: Gardner v. Williamson, 2 B. & Ad. 33G (1831). 

See Hoskins v. Robins, 2 Saund. 324 (1671) ; Somerset v. Fogwell, 5 B. & 
C. 875 (1826). 



156 . RIGHTS IN THE LAND OF ANOTHER (Part 2 

iegQ to dig, take and carry away iron ore to be found within the bounds 
of a certain tract of land;" and charged the defendant with unjustly 
hindering and preventing the plaintiff from digging, taking away the 
iron ore to be found within the bounds of the tract, and also wrongfully 
taking large quantities of ore from said tract, &c. All the counts as- 
serted in some form a right which was several or exclusive in the plain- 
tiff : none of them representing him as a tenant in common with oth- 
ers: and none of them alleging a "surcharge" by defendant. 

The plea was "Not guilty" : there being no plea of any sort in abate- 
ment for the nonjoinder of the remaining representatives of Bennet, 
whose rights the plaintiff had not acquired. Upon these facts, a, ver- 
dict having been given for the defendant, the following questions came 
before the court on a motion for a new trial : 

1. What was the nature of the right granted by Force to Bennet? 

II. Was this right — whatever it was — exclusive? so making it un- 
lawful for the owner of the land to dig in it for ore, as well as the as- 
signee of Bennet. 

III. Was this right divisible or susceptible of apportionment; so 
that the plaintiff having but 94-99ths of it could maintain this action ? 

GriER, Circuit Justice. Assuming, for the argument, the plaintiff 
to be the assignee of the whole right which was vested in Bennet, and 
that it is a grant upon sufficient consideration, let us inquire, what is 
granted? Not the iron ore. This the plaintiff properly admits in his 
declaration, where he defines his interest under the deed, as a "right and 
privilege to dig, take, and carry away iron ore to be found" in the land 
of defendant. If it had been a grant of an absolute property in all the 
iron ore in the tract, the deed would have been insufficient to confer ti- 
tle without livery of seisin, and the statute of limitations a bar to the 
claim. A right or privilege to dig and carry ore from the land of an- 
other, is an incorporeal hereditament,— aj"ight to be exercised on the 
land of another. It is a license irrevocable, when granted on sufficient 
consideration. It may be demised for years or granted in fee : it is 
assignable. The grantee or assignee of such a license, right or privi- 
lege to be exercised in the land of another, has no such title to the ore 
that he can support trover against the owner of the land for ore or coal 
raised by him. Chetham v. Williamson, 4 East, 469. * * * 

2. Is the right granted, one that is exclusive of the owner of the soil ? 
Much stress has been laid upon the word "all" in this grant, as having 
the effect of making it exclusive. But so important a restriction cannot 
be deduced from so equivocal an expression. The deed has been drawn 
by a very able conveyancer. He seems to have had Lord Mount joy's 
Case in his mind at the time. He employs none of the apt and well 
known terms or phraseology to indicate an intention of giving an ex- 
clusive right as against the grantor himself. The grant of a right to dig, 
take and carry away "all" iron ore to be found within the bounds, &c. 
shows_the_extent of the license, but not its exclusiveness. The grantee 
may dig, take, &c. of any or all the ore he can find on the land, but he 



Ch. 1) PROFITS 157 

has no exclusive right in any of it till he finds it and,iiigs it. It is a 
right\vithout stint as to quantity, and Lord Mount joy's Case likens 
it to the grant of a righ t of common sans noiribre w*hich does not ex- 
c jude the owner. This is a point decided in Lord Mountjoy's Case as 
reported by Coke, Leonard and Godbolt. 

3. Did the evidences given by the plaintifif support the allegation that 
he was possessed of the exclusive right to dig, &c , assuming that the 
deed in question conferred an exclusive right on Bennet to dig, take, 
and carry away the iron ore on this tract of land? The right, license or 
liberty granted to Bennet is in it s nature one and indivisible. Unless 
the plaintiff is clothed with the whole he Has nothing. As for other 
things indivisible, it may be held by one or more as joint tenants. But 
they hold per my et per tout, (not as Blackstone has erroneously ihter- 
preted it, "by the half or moiety and by all,") but "by nothing and TDy 
all" (7 Man. & S. 452, in note), or, in the language of Bracton, "Quilibit 
totum habet et nihil habet, scilicet totum in communi et nihil separatim 
per se." As a right to be exercised in the land of another it is an in - 
divisible unit. Whether the plaintiff has l-99th or 94-99ths makes no 
difference. If hejias n ot the whole he has nothin g. It is a question of 
title and not of pleading. ! ''■>■' 

The Case of Lord Mountjoy is conclusive on this point also. 

New trial refused.'' 

6 Kane, District Judge, delivered a concurring opinion. Part of tlie opin- 
ion of May 13, 1S51, and all of the opinion of September 8, 1851, of Grier, 
Circuit Justice, are omitted. 

A. grants to B. "'his partners, fellow adventurers, executors, administrators, 
and assigns, free liberty, license, power, and authority to dig, work, mine, and 
search for .tin, tin ore, etc., and all other metals and minerals whatsoever 
throughout all that part of the land of the said A. commonly called Crinnis, 
* * * and the tin, tin ore, etc., and other metals and minerals there found 
to raise and bring to grass. * * * And dispose of to their own use at 
their pleasure. * * * ipo have, hold, use, exercise, and enjoy the said sev- 
eral liberties, licenses, etc., for the term of twenty-one years." B. covenanted 
to pay one-eighth share of all ore to A. and effectually to work the premises. 
Subsequently, within 21 years, C, under license from A., opened mines on 
other parts of the specified land, but not interfering with the mines opened 
by B. Held, B. cannot maintain ejectment against C. Doe v. Wood, 2 B. 
& Aid. 724 (1819). Ace: Harlow v. Lake Superior Iron Co., 36 Mich. 1U5 
(1877). 



158 RIGHTS IN THE LAND OF ANOTHER (Part 2 

CALDWELL v. FULTON. 
(Supreme Court of Peunsylvania, 1S58. 31 Pa. 475, 72 Am. Dec. 760.) 

This was an action of trespass, for taking coals from the land of 
the plaintiff. He claimed the locus in quo, by devise from his father, 
James Caldwell. The defendants justified under George Greer, to 
whom James Caldwell made a deed, in his lifetime, for the coals.taken, 
and as the judgment to be entered in this case must depend on the con- 
struction of that deed, it is important to obtain, at the threshold, a clear 
and comprehensive view of its terms. 

The deed was dated on the 27th May, 1831 ; acknowledges a con- 
sideration of one thousand eight hundred dollars, is to George Greer, 
his heirs and assigns, for all the therein "described property, situate on 
the east side of the Youghiogheny river," and then describes by metes 
and bounds, two parcels of land, one of which contains six acres and 
forty-seven perches, the other ten acres and fifty perches. The grant 
of coal then follows, in these terms : "Also, the full right, titje,^ and 
privilege of digging and taking away stone coal, to^any extenj the said 
George Greer may think proper to do, or cause to be done, under any 
of the land now owned and occupied by the said James Caldwell ; pro- 
vided, nevertheless, the entrance thereto, and the discharge therefrom, 
be on the foregoing described premises." In the habendum the property 
conveyed is called two lots or parcels of land, and the "aforesaid right 
to the stone coal," and is so designated again in the covenant of war- 
ranty. Such was the original grant. 

On the 23d March, 1842, Greer and wife conveyed an undivided half 
of the premises to Butler Case, and the other half to John B. McCune. 
January 20th, 1844, Butler Case conveyed to William McCune. De- 
cember 5th, 1844. John B. McCune conveyed his moiety to Thompson 
Bell. By deeds, bearing date the 7th June and the 30th August, 1848, 
Bell and William McCune made partition between themselves of the 
sixteen acres, according to agreed lines, and of the coal 'lying back of 
said lots, under the Caldwell farm, in a manner corresponding with the 
partition of the lots. 
M-*^^'--- In August, 1852, William McCune leased to Fulton and the other 
/T defendants his several part, both of the lots and the coal ; and it was 
the entry upon the coal, under this lease, for which the suit was 
i«< brought. It does not appear, from the record, whether any opening 

had been made into the coal, on the part of the premises set off to 
McCune, but it is stated that the opening on Bell's portion of the ten 
acre piece has not been worked since Fulton commenced working the 
coal on McCune's part.'' * * * 

Strong, J. [after stating the substance of the deed]. The consid- 
eration mentioned is single for the entire subject conveyed by the deed. 

7 This statement of fact is taken from the first opinion of tlie court in 
this case by Woodward, J. Part of the opinion of Strong, J., is omitted. 



'7fu 



Ch. 1) PROFITS 159 

It is to be observed in the description of the thing granted, that. there 
are no limits fixed upon the extent to which coal might be taken from 
the land then owned and occupied by the grantor. The grantee's right 
was coextensive with his will ; not necessarily to be exercised by him- 
self, but one which might be enjoyed by others whom he should au- 
thorize. No form of words other than those employed could have 
given him larger dominion. 

Coal and minerals in place are land. It is no longer to be doubted 
that they are subject to conveyance as such. Nothing is more common 
in Pennsylvania than that the surface right should be in one man, and 
the mineral right in another. It is not denied, in such a case, that both 
are landowners, both holders of a corporeal hereditament. * * * 

If then the ownership of the coal or other minerals in a tract of land 
may be vested in one person, while the right to the surface belongs to 
another, the next inquiry is, by what words it may be granted. There 
are two modes in which the subject-matter of a deed may be describ- 
ed, both equally potential. The one is by a description of the thing 
itself, as of land by metes and bounds, or by a known name, and the 
other is by a designation of its usufruct, or of the dominion over it. 
Thus a grant of the rents, issues, and profits of a tract of land is uni- 
formly held to be a grant of the land itself. Co. Litt. 4 b. Judgments 
abound to this eftect in regard to devises, and though in wills and deeds 
the rules of construction difier relative to words limiting the estate 
granted, yet they are the same of words describing the subject-matter 
of the grant. There are also cases of the same character to be found 
in regard to deeds. Thus it has been held that by the grant of a boilery 
of salt the land passes, for that is the whole profit, Co. Litt. 4 b.; or 
a mine of lead, Id. 6 a. So by the grant of all growing trees, Cro. 
Eliz. 522. See, also, Clap v. Draper, 4 Mass. 266 ; Fish v. Sawyer, 1 1 
Conn. 545. Thej-eason is that the grant of a thing can be no more 
than the grant of the full and unlimited use of it. So too the general 
power of disposal without liability to account is equivalent to owner- 
ship itself, it being the highest attribute of ownership, and a gift of 
the one necessarily carries with it the other. This is the doctrine of 
Morris v. Phaler, 1 Watts, 389. 

Applying these principles to the case in hand, why was not the deed 
of Caldwell to Greer a conveyance of the coal in the land owned and 
occupied by the grantor ? Because, says the plaintiff in error, it is not 
a grant of the thing itself, but of a right to take it, and until it is seized 
or taken the property in the thing remains in the grantor. But if the 
conveyance of the whole use of a thing, and of the absolute dominion 
over it, is a grant of the thing itself, only differing in the mode of de- 
scribing the subject, it is not easy to see what more Caldwell could have 
sold than he did. If in another form of words he had described the 
coal as the subject of the grant, Greer would have possessed no greater 
beneficial rights than we.re given to him by the form adopted. The 
ownership of the coal in the ground is but a "full right, title, and priv- 



160 RIGHTS IN THE LAND OF ANOTHER (Part 2 

ilege",to dig and carry it away, nothing more, nothing less. The words 
employed in the deed express absolute dominion, and complete enjoy- 
ment. These constitute property, and all that is understood in pro- 
prietorship. 

Again, says the plaintiff in error, this is but a grant of a right to take 
and carry away part of the profits, and that while a grant of a right 
to take all the rents, issues, and profits of a tract of land is equivalent 
to a conveyance of the land itself, because it embraces their whole 
usufruct, a grant of a right to take part, such as "iron ore, coals," or 
"minerals," is not. It is said that in such a case the grantee can only 
take in common with the grantor. 

The argument is based upon a misconception. The subject alleged 
to have been granted here is not the tract of land, but the coal in it, 
which, as we have, seen, is capable of a separate conveyance, and which 
may be vested in one person, while the ownership of the tract of land, 
as such, may be another's. The alleged subject of the grant then be- 
ing the coal in the land, the substratum, the argument is inapplicable. 
The whole usufruct of that, as well as the entire dominion over it, was 
granted. The deed is not a conveyance of part of the usufruct, nor 
of the usufruct of part of the coal, but of the entire enjoyment. As 
already said, there was no limit to the grantee's right but his own will. 
He could take out coal to any extent. He could cause it to be taken 
out to any extent, and at all times under any of the land. He was ac- 
countable to no one. His entrance to it and his exit from it were in- 
deed required to be on his own land ; but the right to take the coal 
itself was absolutely unlimited. It would seem, therefore, that, accord- 
ing to well-established rules of construction, the deed of Caldwell to 
Greer was a conveyance of the coal itself, and not of a mere easement, 
or incorporeal hereditament. 

It is contended, however, that such a construction is in conflict with 
the authorities, and we are referred to Lord Mount joy's case as the 
leading and principal one. * * * 

Unlike the case we have under consideration,- it was not a grant of 
unlimited dominion over the ores and turf. It was not a grant of a 
right to dig, take, and carry away without stint, but only sufficient for 
a single specified purpose, viz. : the manufacture of alum and copperas. 
It was very aptly likened to a grant of common sans nombre, but was 
not an exclusive right. Surely there is very little resemblance between 
that case and the present. It is not at all in conflict with the constru(>^ 
tion we place upon Caldwell's deed to Greer. * * * 

We are next referred to Doe v. Wood, 2 Barn. & Aid. 719, where 
the grant was called a license, and where the privilege was to dig, work, 
mine, and search for tin, &c., and dispose of what might be found dur- 
ing a term of twenty-one years. The court held it to be a license on 
the ground, among others, that it was a right to dig, search for, &c., 
"the minerals that should within that term there be found," and not a 
grant of the entire subject. The indenture also contained covenants of 



Ch. 1) PROFITS 161 

the grantee to render a share of the ore he might find, and to allow 
the grantor himself to drive adits. The case is no authority in support 
of the argument of the plaintiff in error. 

The only other case to which we are referred is Grubb v. Bayard, 
2 Wallace, Jr. 81, Fed. Cas. No. 5,849. There the grant was to dig, 
take, and carry away all iron ore to be found within the bounds of a 
tract of land of the grantor, provided the grantee should pay unto the 
grantor, his heirs and assigns, the sum of sixpence for every ton taken 
from the premises. This was held to be an incorpgr_eal hereditament. 
It will be observed, that there was no present consideration passed, nor 
was there a covenant of the grantee to search for or take any ore. He 
might never have taken any. In that event, if the deed had been held 
a conveyance of the iron ore, there would have been a sale without j._ 
consideration. Nor was it a grant of the whole, but, said Mr. Justice 
Grier, of the iron ore that should be found within the term, and on 
that account was but a license. He also remarked that "if it had been 
a grant of an absolute property in all the iron ore in the tract, the deed 
would have been insufficient to convey title without livery of seisin." , 
This observation goes beyond the English cases, and is not necessary 
to the judgment rendered. In Grubb v. Bayard, Judge Kane delivered 
a concurring opinion. In it, he refers to the absence of a covenant by 
the grantee to work the mines, and thus ma"ke the rent reserved of 
value, as a circumstance of much importance in determining the inten- 
tions of the parties. That it is so, is obvious, for without it the con- 
tract might have proved entirely fruitless to the vendor, while in the 
present case, Caldwell has received all that he ever can receive. The' 
r ight, whatever it is, is one for which all the consideration has been 
paid. 

These are all the cases adduced to sustain the doctrine that a con- 
veyance of a right to dig, take, and carry away the coal or minerals in 
a tract of land, though the grant be unlimited in quantity, time, or pur- 
pose for which the minerals may be taken, conveys no interest in the 
coal or minerals until they are taken, passes only an incorporeal here- 
ditament. None of them were decided upon the ground of any suppos- 
ed distinction between a right to take all the coal and carry it away, and 
a right to the coal itself. They are all cases in which there was no 
unrestricted power of taking and disposition conferred upon the gran- 
tee. The coal or minerals was to be taken either for a limited purpose, 
or in restricted quantities, and generally was not to be paid for until 
taken. And in. most of them it is easy to see that the supposed neces- 
sity of livery of seisin, in order to pass a corporeal interest in land, Avas 
a controlling consideration in the rninds of the judges. Even in Grubb 
V. Bayard, it seems not to have been without influence. The impossi- 
bility of making livery is, however, in Pennsylvania, no reason for re- 
fusing to give a construction to a deed accordant with the intention 
of the parties. When the intent is to give the entire usufruct and pow- 
BiG. Rights — 11 



1G2 RIGHTS IN THE LAND OB^ ANOTHER (Part 2 

er of disposal, the legal title must be held to pass. Even in England, 
livery of seisin is no longer indispensable to the grant of a corporeal 
hereditament. Unopened mines may be conveyed, and the grantee 
takes more than a right issuing out of land, or exercisable therein. He 
takes the mines themselves. In ^toughton v. Leigh, 4 Taunt. 402, a 
widovi^ was held entitled to dower of mines, not only in lands in which 
her husband had been seised in his Hfetime and during coverture, but 
also in those which were in the lands of other persons, the minerals or 
substratum of which had been conveyed to him. It was also ruled, 
that in assigning her dower, the sheriff should set off to her not one- 
third of the profits, but one-third of the mines themselves, and that tlie 
partition might be made either by metes and bounds, or by directing 
separate alternate periods of enjoyment. * * * 

Thus, after a careful review of the question, we are constrained to 
hold that, by the deed from Caldwell to Greer, the title to the coal m 
the lands then owned and occupied by the grantor was convej^^ and^ 
not a mere license, or incorporeal right. Such was the opinion of this 
court in 1855, when the same deed was here for construction, and' the 
very able argument of the counsel for the plaintiff' in error, has failed 
to convince us that the court was then mistaken. * * * 

The judgment is affirmed.* 

8A., in consideration of $2,000 executed a deed to one Moses by which he 
granted, sold, and conveyed unto the said Moses, "his heirs, executors and as- 
signs, the right and privilege of entering, by himself and his agents, in and 
upon all or any part of the said tract of land, for the purpose of searching 
for minerals 'and fossil substances and conducting mining operations, to any 
extent the said Moses might deem advisable, and for working, removing, 
selling, using and appropriating, as the property of the said Moses, for the 
term of ten years, all organic or unorganic minerals, rocks, fossils, marls or 
so-called phosphates that might be found on, by any person or persons, or 
contained in, any part of the said plantation," which said privilege was, 
however, subject to the proviso, "that the said O. A. Moses should not, at 
any one time, during the aforesaid term of ten years, engage in working 
over one-third part of the said tract. The third to be so worked to be se- 
lected by the said O. A. Moses, and such selection to be made as often as 
the said O. A. Moses might desire." Within the ten years A. licensed others 
to mine phosphates within the said land. Held, Moses is entitled to an ac» 
counting and to an injunction against further mining. Massot v. Moses, 3 
S. C. IGS, 16 Am. Rep. 697 (1871). 

A. executed the following instrument: "received of B. $175 in payment 
of sand bar on Fall creek * * * for the year 1S90. This Is for the ex- 
clusive right to all gravel and sand for the year above named and excluding 
all other parties from the said premises. [Signed] A." Within the year 
A. conveyed the premises to C, who bought with no knowledge of this in- 
strument. Held, C. cannot enjoin B. from taking away gravel; the instru- 
ment is a lease. Heywood v. Fulmer, 158 Ind. 658, 32 N. E. 574, 18 L. R. A. 
491 (1892). 

A. executed to B, a deed which contained, among others, the following 
clause: "The said A. further agrees to give to the said B. the privilege ot 
raising iron ore in his fields at twenty-five cents per ton * * * and to 
give the privilege to none else." B. conveyed all his interests to X. A. con- 
veyed the land owned by him to Y., subject to any rights that B. or his as- 
signs might have by virtue of the above grant. Held, X. cannot enjoin 1, 



Ch. 1) PROFITS 163 

ROTHERHAM v. GREEN. 

(Court of Common Pleas, 1597. Cro. Eliz. 593.) » 

Trespass. The defendant pleads, that William Green, his father, was 
seised in fee of a tenement in L. and that he and all his ancestors, and 
all those, &c. in the said tenement, from time whereof, &c. have used 
to have common in the place where, &c. for all their beasts levant et 
couchant upon the said tenement ; and that it descended unto him, &c. 
Issue was taken upon the prescription, and a special verdict found, 
viz. that Edward Green, grandfather to the defendant, was seised of 
the tenement; and that he and all his ancestors, and all whose, &c. 
from time whereof, &c. had used common, &c. (according to the pre- 
scription) ; and he being so seised, released to Sir Thomas Rotherham, 
the plaintiff's ancestor, all his right, and his common in part of the 
land, where he had the common, and died ; and the tenement descend- 
ed to William Green, and from him to the defendant. Et si, &c. — Drew 
prayed judgment for the plaintiff. For by release of the common in 
part of the land, the whole common is gone, and extinct ; for other- 
wise the tenant of the residue of the land should be charged with all 
the common, which is not reasonable. And thereupon it is, that if a 
lord releaseth his signiory in one acre, all is gon6: as 21 Edw. 3. 
"Scire Facias," 112. is. — Spurling e contra; because the commfen is ap- 
purtenant, and it is for the manurance of the land, and stands with 
common right. — Anderson. This is not a common of common right ; 
for it is for swine and sheep, and it is not like to Dyer, 339. where 
the lord improved part of the common, leaving sufficient to the com- 
moner, and infeoft'ed a commoner of that part improved: for there 
the common is not extinct ; because the land improved was discharged 
of common before the feoffment. But this is like to Rampton's case, 
which was adjudged in this Court ; where one having common in a 
great field, wherein many men had land, he purchased an acre from 
one of them, it was adjudged that all this common was extinct, &c. 

from mining coal in the land in question. Johnstown Iron Co. v. Cambria 
Iron Co.. 32 Pa. 241, 72 Am. Dec. 783 (185S). 

See, also. Funk v. Haldeman, 53 Pa. 229 (1S6G). 

A, by deed granted to B.,' his heirs and assigns, the "sole and exclusive 
right and privilege" of shooting and taking wild fowl on A.'s land. Held, 
B. cannot indiscriminately license other persons to shoot wild fowl on A.'s 
land. Bingham v. Salene, 15 Or. 208, 14 Pac. 523, 8 Am. St. Rep. 152 (18S7). 

An exclusive profit in gross may be acquired by prescription. Welcome 
V. Upton, 6 M. & W. 536 (1840) ; Melvin v. Whiting, 10 Pick. (Mass.) 295, 20 
Am. Dec. 524 (1830). 

As to the form of action maintainable by the owner of an exclusive profit, 
see Anon., Dver, 285b, pi. 40 (15C9) ; Wilson v. Mackret, 3 Burr. 1824 (1766) ; 
Cox V. Glue, 5 C. B. 533 (1848) ; Clap v. Draper, 4 Mass. 266, 3 Am. Dec. 215 
(1808) ; Hartford Iron Mining Co. v. Cambria Mining Co.. 93 Mich. 90, 53 N. 
W. 4, 32 Am. St. Rep. 488 (1892) ; Kelly v. Keys, 213 Pa. 295, 62 Atl. 911, 110 
Am. St. Rep. 547 (1906). 

» S. c. 2 And. 89 ; Noy, 67. 



164 RIGHTS IN THE LAND OP ANOTHER (Part 2 

So here the common also is intire through the whole land: wherefore 
a release \n part shall discharge the whole. The prescription also is 
general, to have common in all the place, where, &c. and the jury have 
found a release in part of the land, and therefore the prescription is 
found against the defendant. — Beaumond and Owen agreed with him 
in both points : but Walmsley held, that the common was not gone for 
the residue ; because this release went in benefit of the ter-tenant, and 
it was an improvement by him: but, as touching the prescription, he 
agreed, that it was found against the defendant, for the reason above- 
said. — Wherefore they all agreed against the defendant. And it was 
adjudged accordingly.^'* 



DRURY v. KENT. 

(Court of King's Bench, 1603. Cro. Jac. 14.) 

Replevin. Upon a special verdict, the case was, a man prescribes 
to have common appurtenant to the manor of B. for all his beasts levant 
^ couchant: he grants this common to A. Whether this grant were 
good or no? was the question. — And adjudged, that he could not grant 
it over, for he hath it quasi sub modo, viz., for the beasts levant & 
couchant ; no more than estovers to be burnt in a house certain : but 
common appurtenant for beasts certain may be granted over. Where- 
fore it was adjudged ut supra.^'- 



COLE V. FOXMAN. 

(Court of Common Pleas, 1618. Noy, 30.) 

In an action upon the case by a commoner against I. S. for charging 
of the common, see 9 Rep. 112. The point was, A. seized of 5 acres, 
and of a common appurtenant to them, aliens one acre, if the common 
be extinct, for part or in the whole. And by the Court it is not extinct, 
for any part, but it shall be apportioned, and no prejudice to the terre- 
tenant. And Hubbard, Chief Justice, who gave the rule said, the 
sole reason is, that otherwise a grand inconvenience and mischief 

10 A. had 50 acres of land, with common appurtenant for cattle levant and 
couchant thereon in two other tracts, one owned by B. and one by C. B. 
bought the piece owned by A. Held, B. has no right of pasturage in C.'s land, 
the court stating that if the common had been appendant instead of appur- 
tenant it would have been apportioned. Tyrringham's Case, 4 Co. 36b (1584). 

So the common is extinct in the piece owned by O. if A- buys the piece 
owned by B. Kimpton v. Wood, 1 And. 159 (1586). 

11 Ace: Daniel v. Hanslip, 2 Lev. 67 (1672). 

A., the owner of a tract of copyhold land, had by prescription the sole and 
several pasturage of a certain piece of land for the whole year at his will, 
as belonging to his said tenement. He licensed X., a stranger, to pasture his 
cattle on the servient piece. Held, the owner of the servient piece cannot 
justify the taking of X.'s cattle as daraage-feasant. Hoskins v. Kobins, 2 
Saund. 324 (1671). Compare Jones v. Richard, 6 A. & E. 530 (1837). 



Ch. 1) PROFITS 165 

would ensue. For by that all commons in England shall be extinct, and 
salus populi est summa lex, & apices juris non sunt jura. And the great 
dispute in that case was, for the certainty what shall be said to be cat- 
tle levant and couchant. And Serjeant Attee said, that Cook, Chief 
Justice in his circuit in Norff. said, that so many of the cattle that the 
land, to which the common is appurtenant, may maintain in the winter, 
so rnany shall be said levant and couchant. To which Warberton and 
Hutton agreed. ^^ 



PHILLIPS V. RHODES. 
(Supreme Judicial Court of Massachusetts, 1843. 7 Mete. 322.) 

The parties submitted this case to the court on agreed facts, all of 
which appear in the opinion of the court. 

Hubbard, J.^^ This is an action of trespass for breaking and en- 
tering the plaintiff's close, and taking and carrying away sea weed. 
The defendant pleaded the general issue, with notice that he was the 
lessee or servant of Mary Ann Balch and her husband ; said Mary Ann 
being a part owner of the locus in quo, or an owner of a privilege in 
the same. The taking of the sea weed mentioned in the declaration is 
admitted. 

The plaintiff claims title to the locus in quo under the will of her 
late husband, Benjamin H. Phillips, deceased, whose title was derived 
by deed from Jonathan Phillips and others, children and heirs at law 
of Gideon Phillips and Rebecca his wife, dated December 12th, 1797, 
and a deed from said Rebecca, dated December 11th, 1797. This deed 
of Jonathan Phillips and others conveys to Benjamin H. Phillips, 
among other parcels of land, the following : "All that part of the home 
field, so called, excepting thirteen poles laid out to said Jonathan Phil- 
lips, that lieth southerly and westerly of a line running southerly 
eighteen rods from said Jonathan Phillips's land down the field- to a 
stake; thence easterly ten and four tenth rods to a stake; thence south- 
erly to the beach ; and contains four acres and forty poles, with the 
mansion house that was our said father's and mother's on the prem- 
ises." 

The title under which the defendant justifies is by a deed of the same 
date, from Jonathan Phillips and others to Rebecca Collins, wife of 
Jacob Collins, Jr. ; and the description of one of the parcels of land 
is the following: "Also two acres and nine poles of land in Nahant, 
so called ; also a privilege of getting what is called sea dung on the 

12 Ace: Wild's Case, 8 Co. 7Sb. (1609). See Day v. Spooner, Cro. Car. 432 
(1636). 

As to the meaning of levant and couchant, compare Scholes v Hargreav^es. 
5 T. R. 46 (3792) ; Whitelock v. Hutchinson, 2 Moo. & R. 205 (1S39) ; Robinson 
V. Hartopp, L. R. 43 Ch. Div. 484 (1SS9). 

13 Part of the opinion is omitted. 



16G RIGHTS IN THE LAND OF ANOTHER (Part 2 

beach below the home field, that our mother Rebecca Phillips hath 
granted unto us; with all other privileges and appurtenances there- 
unto belonging." 

The above deeds were made by the heirs, in the division of the es- 
tate of Gideon and Rebecca Phillips. The other lands of said Gideon 
were assigned to his other children, by deeds of division, and a privi- 
lege in the beach was granted to all of them except those who had part 
of the home field. The said Rebecca Collins survived her husband, 
and died leaving Ijer estate by will, after certain legacies, to her son 
Phillips Collins, .and to her daughter Mary Ann Collins, and if either 
should die leaving no issue, the survivor was to inherit tlie whole. The 
said Mary Ann Collins married John C. Balch, and she claims a privi- 
lege to take sea manure from the beach, and has leased or sold her 
right to the defendant. 

The land, to which the defendant carried the manure from the locus 
in quo, was no part of the estate formerly belonging to said Gideon or 
Rebecca Phillips. There are about eighty direct descendants from the 
six children of Gideon and Rebecca Phillips, who claim each a right 
to take manure from said beach by virtue of the grants to their an- 
cestors of privileges in the division deeds. 

The right granted to the ancestor of Mary Ann Balch was a privilege 
of getting sea manure on the beach below the home field, which field 
belonged to the plaintiff. The sea weed which is thrown up belongs 
to the owner of the beach; Emans v. Turnbull, 2 Johns. (N. Y.) 322, 
3 Am. Dec. 427; and so is the subject of grant. The question present- 
ed for consideration is, whether the grant tlfus made to Rebecca Col- 
lins (similar grants having been made to other children of Gideon and 
Rebecca Phillips) is a right in gross, to be enjoyed by all the grantees 
and their heirs, or whether it is a right appurtenant to the particular 
parcel of estate conveyed in the deed to which it is annexed. ~^ 

As a right or common in gross passes by deed, it is necessary to con- 
sider- the terms of the grant, to ascertain the nature of the estate in- 
tended 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, 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 
•particular estate, so that it might be used thereon, it would always en- 
hance 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 consequently, 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. 

But we do not consider, though the privilege is appurtenant to the 
estate, that the owner is confined, by the terms of the grant to use the 



Ch. 1) PROFITS 167 

dressing on the particular estate. Having taken the manure from the 
beach, by virtue of the privilege, she may use it on other lands of her 
own, or dispose of it to others ; or she can lease her share of the privi- 
lege while she remains an owner in common of the particular estate. 
If it is said that the privilege may in this manner be subdivided, and 
the same evils follow as would or might flow from a sale of the privi- 
lege independent of the land to which it is appurteriant ; yet it must be 
remem bered that its subdivision can only be such as the piece of land 
to which it is attached is subject. One person having a right or privi- 
lege may afso obtain more than his just share of the dressing cast up 
during the season. But such inequality in the division is almost in- 
evitable from the nature of the property itself, thrown up as it is on 
the beach, in greater or less quantities, by the constant heaving of the 
sea. But it is also true, that if one proprietor should be obstructed by 
another proprietor in the enjoyment of his privilege, he would not be 
without a remedy for the obstruction of his right. * * * 

We notice, in the report of the case, that the said Mary Ann Balch 
either leased or sold her right to the defendant Rhodes. In the opinion 
we have expressed, it becomes important to settle the fact whether the 
defendant is the lessee of said Balch's interest, or has made an abso- 
lute purchase of the same. If the former, the defendant may justify, 
as acting under the owner, by virtue of her lease to him. But if he 
justifies the entry and taking under a sale of the right to himself, he 
takes nothing by the purchase, and is liable in this action to the plain- 
tiff. And if the fact cannot be agreed, the cause must be sent to a jury 
to ascertain it. 



HALL V. LAWRENCE. 

(Supreme Court of Rhode Island. 1S52. 2 R. I. 218, 57 Am. Dec. 715.) 

[Submission for determination of the rights of the parties under 
their respective conveyances. 

On November 7, 1776, Nicholas Taylor and Joseph Wanton Tay- 
lor were owners in common, of a farm abutting on the ocean. On that 
day they executed a deed of partition by which the south part adjoin- 
ing the ocean was conveyed to Nicholas, and the north part to Joseph. 

Other facts appear in the court's opinion.] 

Brayton, J.^* The p^laintifiE claims in this case a right to enter upon 
the land of the defendant, being the farm set off to Nicholas Taylor 
in the deed of partition of 1776, and to take and carry away from the 
shore thereof, mentioned in the deed of partition, sea-weed, gravel and 
stone in any quantity without limit at his will and pleasure and to make 
merchandise thereof for his profit, and a right of way to pass and re- 
pass to and from said shore over the defendant's land for that purpose. 

14 The statement of facts is abridged and part of the opinion is omitted. 



r^ 



168 RIGHTS IN THE LAND OF ANOTHER (Part 2 

This right he claims as a right^jn. gross, though, by the deed of par- 
tition, he claims that it was originally made ^jnirtenant to the North 
farm set off in said deed to Joseph W. Taylor, under whom he claims. 

The argument both for plaintiff and defendant, proceed upon the 
assumption that the right of taking sea-weed, gravel and stone, what- 
ever it was, was originally appurtenant to the estate of Joseph W. Tay- 
lor, and, indeed, if it were not appurtenant, it is evident the . plaintiff 
has no title, for his deed from Armstrong describes no such right, and 
unless it jwas appurtenant at the time, he takes nothing by his deed. 

In order to ascertain what the rigTits of the plaintifr^how are, it is 
necessary to inquire, first, what were the rights originally granted in 
said deed to Joseph W. Taylor. 

By the terms of the deed, after setting off to Nicholas the south part 
of the original farm upon which portion was all the beach, and setting 
off to Joseph the north part, which was less in quantity, and we may 
presume without a beach privilege less in value, the deed then pro- 
ceeds and says: "And the said Nicholas Taylor, doth grant free lib- 
erty of carrying away gravel and sea-weed off the beach, belonging to 
his part of said farm, and also, stones below high-water mark on said 
beach, to the said Joseph W. Taylor, his heirs and assigns, and, also, 
liberty to tip the sea-weed on the bank on his part of said land." 

This grant is made doubtless to equalize the partition, to render the 
north part, which had no shore where sand and sea-weed might be 
obtained for improving and fertilizing the land, and, it may be, less 
facilities for obtaining stone for building and fencing, equal in value 
with the south part. 

\t will be seen also, that the grant is not limited in terms as to quan- 
tity, nor is it defined in terms to what uses it shall be applied or for 
what purposes tal<en, so as to furnish a just measure of the amount 
which Joseph might take. 

We must however presume th^t it is not to be entirely without limit, 
extending to the entire quantity of gravel, sea-weed or stone upon the 
shore and thereby excluding Nicholas; but that the right of Joseph 
was to be a right in common with Nicholas. So it must have been the 
intent of the parties, that, as the right was created for the benefit of 
the north shore, and as it must have some limit as to the amount, it 
should be limited in extent to the uses of the land set off to Joseph, and 
so it must necessarily become appurtenant; Joseph would not, how- 
ever, be confined to so much only as might be necessary of necessity to 
the estate, but as the grant was liberal — "free liberty" — might take so 
much as he might have occasion to use for any purpose upon the estate. 

The plaintiff's counsel contends that under this grant, upon a just 
construction of it, Joseph originally had a right to take for sale and 
profit, without regard to any use, and the case of Phillips v. Rhodes, 
7 Mete. (Mass.) 322, is cited to that point, in which it is held, that un- 
der a right of common to take sea-weed appurtenant to the estate and 
intended for a dressing for the land, it might when taken be applied 



Ch. 1) PROFITS 169 

to that use or sold. No reason is given nor authority cited, and we 
are left upon the authority of the case alone. It is not easy to perceive 
the reason, if the extent of the right were to be measured by the use and 
purposes of the estate. But without determining whether when once 
taken for use, the party might not forego the benefit of it to his estate 
and sell to another, the. conclusion we think is warranted that the sale 
would not give him a right to take more than reasonably he might have 
taken had he thought fit to use it upon the estate. 

The effect of the grant in the deed of partition is to create a right > 
of common for sea-weed, gravel and stone, in favor of the north farm ^ 
set off to Joseph, and as appurtenant thereto, to be exercised on the ) 
shore of the estate set off to Nicholas, giving a right to take so much I 
as the owner of the north shore might think proper or profitable to use / 
on the estate. 

There passed also, as incident to this grant, a right of passing and 
repassing to and from the shore oyer the land of Nicholas, in some 
convenient place for the purpose of taking the profit. This was neces- 
sary to the enjoyment of tlie right of common granted, and would 
therefore pass by an implied grant, and accompany and follow the 
principal grant so long as it existed, and only became extinguished with 
the extinction of the common itself. * * * . 

Did these rights pass to the plaintiff ? George Armstrong, by his 
deed of July 4th, 1835, conveyed to the plaintiff all the land originally 
set off to Joseph W. Taylor, in the deed of partition of 1776, with the 
appurtenances, and whatever rights of common were then appurtenant 
to the lands conveyed or to any portion of them passed to the plaintiff. 
Our inquiry then must be directed to the title which Armstrong had 
to the common. 

Armstrong's title to the land is derived to him by two separate con- 
veyances. By the deed from Joseph W. Taylor, of August 12, 181v3, 
he acquired title to nineteen and three-quarters acres, a porti on of the 
land originally set off to Joseph, "and all the privileges and appurte- ^^ 

nances which I, the grantor, now have of taking and carrying away 
gravel and sea-weed and all stones below high water mark on said 
beach, and also to tip the sea-weed on the beach of the said Nicholas 
Taylor's land." Such are the words of the grant. 

But whether any right of common then remained appurtenant to the 
nineteen and three-quarters acres, must depend upon the effect which 
is to be given to the conveyance of Joseph W. Taylor to his brother 
Nicholas of March 12, 1803. By that deed Joseph conveyed to Nich- 
olas thirty acres, part of the shares set oft' to him, to which the \Vhole 
right of common was made appurtenant.^^ 

The defendant's counsel claims that the effect of the conveyance of 

1 B On March 19, 1819, the title to this 30 acres was conveyed to Armstrong 
subject to an equity of redemption in Nicholas Taylor and the douer right 
of his wife. 



170 RIGHTS IN THE LAND OF ANOTHER (Part 2 

the thirty acres portion of the dominant estate is the extinguishment 
of the whole common. 

The first question here raised is whether this right of common was 
divisible and might or not be apportioned to the several parts of the 
dominant estate upon a severance of the estate. In regard to rights of 
common which by law are indivisible, a conveyance of any portion of 
the dominant estate Avill e xtinguish the whole^ as in the case of com- 
mon of estovers, Van Rensselaer v. RadcHff, 10 Wend, (N. Y.) 639, 
25 Am. Dec. 582 ; Livingston v. Ketcham, 1 Barb. (N. Y.) 592, and 
the reason assigned is that the service is entire and appurtenant to an 
entire estate, and npt being divisible it cannot be appurtenarit To^'part 
of the estate as an entire service. 

There are, however, other rights of common which are in law divisi- 
ble, and in all such cases it may be apportioned to the several parts of 
the dominant estate upon its severance by different conveyances. A 
right of pasture for cattle san nombre is of this kmd. In such case 
it is held that though the right be unlimited in terms, yet it is intended 
for the use of the estate and limited to such cattle as may be kept upon 
the dominant estate or upon any portion of it, and equally upon any 
portion, so that, upon a division of the dominant estate and upon ap- 
portionment of the service to the several parts, the servient estat e is 
not charged to any greater extent than before or with mor^xattle. And 
the rule is that wherever the common is admeasurable the common is 
'}' apportionable. Tyrringham's case, 4 Co. 35. But the right being meas- 

ured by the uses of the estate cannot be severed from the estate and 
granted over. Drury v. Kent, Cro. J. 15. 

This right in the present case is of the same nature. It is intended 
for the use of the estate and for every acre of it, and that equally and 
whether the right be divided or not, the measure is the same. I^ may 
therefore be divided, and, by a conveyance of a part of the dominant 
estate, it would be apportioned to the part conveyed and so much might 
well pass with it under the term appurtenance. 

This conveyance may be afifected by another rule, for although the 
common may be in its nature divisible and apportionable, yet, ifjhe ef j 
Ject of the conveyance is to surcharge the servient estate, it shall not 
Only not be apportioned, but shall become extinct for the whol e. 

And for the same reason it is, that a release of a portion of the 
servient estate or purchase of part of the servient by the sole owner of 
the dominant shall extinguish. In Rotherham v. Green, Cro. E. 593, 
there was a release of part of the land in which, &c. In Kimpton v. 
Bellamyes, Leonard, 43, the owner of the dominant purchased two 
acres of forty of the servient estate. In these cases the effect was to 
surcharge the residue. So, in Tyrringham's case, 4 Co. 35. * * * 

And the rule deducible from all the cases is, as before stated, that if 
the effect of the conveyance is to surcharge the common and burthen 
to a greater extent the servient estate, it shall extinguish; if otherwiie, 



Ch. 1) PROFITS 171 

there shall be an apportionment and such portion will pass as appurte- 
nantr 

By this rule the portion of common belonging to the thirty acres 
would become severed from the residue, which would remain appurte- 
nant to the nineteen and three-quarters acres retained by Joseph Tay- 
lor, and the thirty acres would become a distinct dominant estate. 

But inasmuch as the title to tlie dominant estate, by virtue of the 
conveyance, became united in the hands of Nicholas with the servient 
estate, all the common appurtenant to the thirty acres thereby became 
extinguished by unity of title. It has not been revived by any of the 
conveyances so as to pass by the term appurtenance in the deed of 
Armstrong to the plaintiff. 

The defendant's counsel claims that, although such would be the ef- 
fect of the deed to a stranger, who immediately conveys to the servient 
owner, yet, if made directly to the servient owner, the whole is ex- 
tinguished. 

Now, bearing in mind the reasoning on the cases generally upon the 
subject and the rules deducible from them, we should not expect to 
find a case in which it should be held that, where the conveyance does 
not directly surcharge the common remaining, and where the servient 
owner can in no wise suffer injury, the whole common should become 
extinguished and that against the apparent intent of the parties, but 
that effect would be given in such case to the clear intent. 

There is, however, in Tyrringham's case, the annunciation of such a 
rule as the defendant's counsel claims. It is this : That common ap- 
purtenant cannot be extinct in part and in esse for part by act of the 
parties, for that common appurtenant was against common right. 
Taken in the broad sense which counsel gives it, and independent of 
the connection in which it is used, it might support the ground which 
the counsel assumes. But taken with its connection, it is evident that 
it was not applied or intended to apply to such a case as is now before 
us. The same rule exists in relation to rent charge, which is said to 
be against common right as distinguished from rent-service which is 
deemed of common right. * * * 

Now Tyrringham's case when carefully examined, it will be seen, 
does not come up to the point made by the defendant's counsel. * * * 

Now, the case was : The owner of part of the servient became own- 
er of the whole dominant and so interested in surcharging the residue 
of the servient. 

But, in order to fully understand the case and the point immediately 
before the court, it must be borne in mind that so far as the severance 
and apportionment of the common to the dominant estate is concerned, 
there is no difference in the rule of law applicable to the common ap- 
purtenant or common appendant. In either case, upon severance of 
the dominant estate the common was apportionable. The difference 
between the two related to the servient estate, and the court in a pre- 
ceding part of the case had resolved that common appendant being of 



172 RIGHTS IN THE LAND OF ANOTHER (Part 2 

common right, might not only be apportioned to the land to which, &c., 
but would also be apportioned upon the severance of the estate in 
which, &c., and they say, that as to this kind of common, if the com- 
moner aliene part the land in which, &c., yet the common shall be ap- 
portioned. But it was not so with common appurtenant. In such case 
there could be no apportionment to the servient estate. And, there- 
fore, the court was obliged to say, referring particularly to the part of 
the case before them, that by this purchase the common was extinct for 
the whole, for in such case common appurtenant could not be extinct 
in part and in esse for part by act of the parties. 

There never was any difficulty in releasing a portion of the service 
charged upon the servient estate. The only difficulty was in releasing 
any portion of the servient estate wholly from all service, and that, be- 
cause it could not be apportioned. * * * 

We are then, upon the whole, of the opinion that the deed from 
Joseph W. Taylor to Nicholas Taylor, of the thirty acres, operated as 
a severance and apportionment of the common, and that the part ap- 
portioned to the thirty acres became extinguished and lost, but that 
the conveyance did not operate to extinguish the residue of the com- 
mon apportionable to the nineteen and three-quarters acres, and that 
so much passed by Armstrong's deed of July 4th, 1835, to the plaintiff, 
with a right of way as incident of it and necessary to the enjoyment. 

Had the plaintiff remained owner of the whole of this lot of nine- 
teen and three-quarters acres, he would still have been entitled to the 
common appurtenant. But his right has again been affected by his con- 
veyance to Robert H. Ives, of nine and three-quarters acres, part of 
the nineteen and three-quarters acres." Had he made no reservation 
of the common in that deed, there would have been an apportionment, 
and Ives would have taken the portion belonging to nine and three- 
quarters acres, for though such common may be apportioned, ijt_could 
not be severed from the estate and granted over, (Drury v. Kent, Cro. 
J. 15,) and, because it could not be severed, the plaintiff could not re- 
tain it to himself. If it exist at all, it must exist with the estate, the 
uses of which it is to attend and minister to. 

The plaintiff', then, at the time of filing his bill in this case, had a 
right of common to take from the shore of the defendant's estate sea- 
weed and gravel, and stones below high-water mark, at all times at his 
will and pleasure, for such purposes as he might think proper to use 
them upon his estate; but this right did not extend to the thirty acres, 
to which Armstrong derived title under the mortgage of Nicholas Fry 
to the Bank of Rhode Island, all right being extinguished as to that, 
but was limited to that portion of the nineteen and three-quarters acres 

16 This conveyance to Ives by the plaintiff expressly reserved "the privi 
leges of sand, gravel and sea weed upon the south shore of the Taylor farm 
and of tipping the sea weed on the bank thereof as appurtenant to the resi- 
due of the said Joseph W. Taylor farm retained by" the plaintiff. 



Cb. 1) PROFITS 173 

conveyed by Joseph W. Taylor to Armstrong, by deed of August .12th, 
1813, which the plaintiff has not conveyed to Robert H. Ives; and he 
had, also, a right of way to and from his said land to the shore for the 
purpose of exercising this right as incident and necessary to its en- 
joyment. 

This is the extent of his right in our view upon the deeds and con- 
veyances put before us.^^ 



HUNTINGTON v. ASHER. 

(Court of Appeals of New York, 1884. 96 N. Y. 604, 48 Am. Rep. 652.) 

One Hogan owned a tract of land on which was a large pond. On 
^ November 3, 1869, he conveyed to one J. H. Asher a half acre of land 
adjoinin^the gond. The deed contained the following provision: 

"And the party of the first part, as incident to this conveyance, also 
grants and conveys to the party of the second part, his heirs and as- 
signs, the exclusive right to take ice from the pond of the party of the 
first part, with the right and privilege of access for that purpose to and 
from the pond to the ice-house to be erected on the lot hereby con- 
veyed. 

"In consideration of which said grant, as aforesaid, the party of the 
second part hereby covenants and agrees for himself and his heirs and 
assigns to furnish and deliver to the party of the first part (so long as 
he shall continue to occupy his present residence), free of charge, all 
the ice which he shall require for his own family use, and also to fur- 
nish and deliver to the purchaser or purchasers of the pond and mill 
privilege and their heirs and assigns, free of charge, all the ice which 
they shall require for their own family use, so long as they continue to, 
reside in the village of Rhinebeck." 

The residue of Hogan's land came by mesne conveyances to the 
plaintiff, each conveyance being expressed to be subject to Asher's 
right. Subsequently J. H. Asher conveyed to the defendant, Emeline 
Asher, his half acre with the appurtenances, but made no mention of 
the right to cut ice. The plaintiff contended that the defendant had no 
right to cut ice and brought this bill for an injunction. 

Finch, J.^* The contract of purchase and sale between the original 
parties contemplated the creation of a right to take ice from the unsold 
lands of the grantor as an incident to the conveyance of the half acre 

17 A, conveyed a farm to B. in fee, "together with the free liberty • • * 
of cutting timber * * * for building, fencing, and fuel * * * for 
the use of the said hereby released lands only" in certain land still belong- 
ing to A. Part of B.'s farm came to C. Held, C. has no right to cut timber 
for the above mentioned uses of his farm. Van Rensselaer v. Radcliff, 10 
Wend. (N. Y.) '639, 25 Am." Dec. 582 (1833). 

18 The statement of facts is abridged and part of the opinion is omitted. 



17)4 RIGHTS IN THE LAND OF ANOTHER (Part 2 

and an appurtenance of the land conveyed. It is impossible to study 
the arrangement in its details and arrive at a different conclusion. The 
half acre of -land was purchased for the known and declared purpose 
of erecting thereon an ice-house to store the product of the pond, and 
as a means of conducting the ice business. The terms of the deed sub- 
stantially so declare, and the fact is not denied by the findings of the 
trial court. The right thus given was a natural, appropriate, and nec- 
essary adjunct of the land conveyed, having in view the purpose for 
which it was purchased, on the one hand, and sold, on the other. There 
was no sale of the right in gross for its own sole and separate consid- 
eration, but the price of the land paid and to be paid covered the land 
with its fight attached. The arrangement was meant to be continuous^ 
and to follow the two estates irrespective of their ownership. The con- 
veyance of the right, like that of the land, was to the grantee and his 
assigns, and the former was declared in terms to pass as "incident" to 
the grant of the latter. And then the grantee, "for himself, his heirs 
and assigns," covenants to furnish ice to the successive grantees of the 
pond and mill privilege so long as they reside in the town of Rhine- 
beck. The contract thus contemplated a dominant and servient es- 
tate. If a mill, dependent upon water-power, had stood upon the half 
acre, the right to draw from the pond would have passed with the 
land as an appurtenant easement, if such had been the actual situation 
of the premises, or the express agreement of the parties. If no mill 
and no raceway were there, but the purchase was for the purpose of 
erecting them and the deed gave the water-right accordingly and as in- 
cident to the' conveyance, such right would become an appurtenance, 
at least when exercised, and pass with the land. But the right in ques- 
tion here is of a somewhat different character, and upon that difference 
is founded the conclusion of the General Term, and much of the argu- 
ment before us. 

The opinion below asserts that the right under consideration was not 
an easement attached to a dominant estate, and not an appurtenance of 
the latter. The reason assigned is in these words : "A right by which 
one person is entitled to remove and appropriate for his own use any 
thing growing in, or attached to, or subsisting upon the land of anoth- 
er for the purpose of the profit to be gained from the property there- 
by acquired in the thing removed, has always been considered in law a 
different species of right from an easement. Such right is a privilege, 
and so is an easement ; but the latter is a privilege without profit, and 
is mereljf accessorial to the rights of property in land, while the former 
is the reverse. If granted to one in gross it is so far of the character 
of an estate or interest in the land itself that it is treated as 
such." * * * 

It must be admitted that the strict and technical definition of an ease- 
ment excludes a right to the products or proceeds of land, or, as they 
are generally termed, profits a prendre But that such a right is in 



Ch. 1) PROFITS 175 

the nature of an easement, and although capable of behig transferred 
in gross, may also be attached to land as an appurtenance and pass as 
such, is shown by the authorities to which the General Term refer. 
In Post V. Pearsall, supra [22 Wend. 425], the language of the chan- 
cellor is, "for a profit a prendre in the land of another, when not grant- 
ed in favor of some dominant tenement, cannot properly be sflTTTio be 
an easement, but an interest or estate in the land itself." That it may 
be so granted by the terms of the grant as to become an appurtenant 
right in the nature of an easement is implied in the citation. Wash- 
burn, to whose discussion of the subject we are referred, says distinct- 
ly, "this right of profit a prendre, if enjoyed by reason of holding a 
certain othe'r estate, is regarded in the light of an easement appurtenant 
to such estate ;" (Wash, on Eas. 8, § 7) ; and alluding also to rights 
acquired by custom or dedication, the author adds : "it would be diffi- 
cult to treat of easements or servitudes, without embracing these rights, 
as well as that of taking profits in another's land which one may enjoy 
in connection with the occupancy of the estate to which such right is 
united." It seems, therefore, to be the law, that a right to take a profit 
from an other's land, although capable of being transferred in gross, 
may also.be so attached to a dominant estate as to pass with it by a 
grant tra nsferring the land with its appurtenances. * * * 

An instructive case on this point is that of Grubb v. Guilford, 4 
Watts (Pa.) 223, 28 Am. Dec. 700. There, on sale of twenty acres of 
ore-bank, a right was also given to the grantee to enter upon other 
lands of the grantor and search for iron ore, and mine and carry it 
away. The question was whether such right was appurtenant to the 
twenty acres, and it was held that it was not. Among the reasons giv- 
en were that a separate consideration for the ore mined was to be given, 
and that the right was in no manner necessary to the use or occupation 
of the twenty acres, and did not concern or affect it at all. The furnace 
to be supplied was on other lands, and the court said that the argument 
tended only to show that the right was appurtenant to the furnace, and 
not to the twenty acres, because while it was needed for the one, it was 
not for the other, and in no manner concerned it. * * * 

The whole question, thus, turns upon the inquiry whether the priv- 
ilege granted was of such a character as to be in the nature of an ease- 
ment and become, when exercised, an appurtenance. It does not con- 
cern or inhere in the land precisely like a right of way which is essen- 
tial or convenient irrespective of the use to which the land is put, but 
does do so relatively to that use, as in the case of land used for a mill or 
for the manufacture of iron. In those cases, as in this, the use for 
which the land was bought, and which characterized the contract of 
purchas e., became the essential element by which the privilege granted 
was t o Jbe measured and judged. The right to take^ice from the pond 
was the one essential thing leading to the purchase of the half acre, 
justTrymg the building put upon it, and making possible the perform- 



176 RIGHTS IN THE LAND OF ANOTHER l^Pait 2 

ance of the covenants for supply. We think that right passed to the 
present defendant. 

The judgment should be reversed and a new trial granted, costs to 
abide the event. All concur. 

Judgment reversed.^® 

SMITH ,v. GATEWOOD. 

(Court of King's Bench, 1G07. Cro. Jac. 152.) 

Trespass in a place called Horsington Holms. The defendant justi- 
fies, for that Stixwold is an ancient vill adjoining to the place where, 
&c. and that within the said vill is, and time whereof, &c. hath been 
such a custom ; that every inhabitant within any ancient messuage, 
within the said vill, by reason of his commorancy therein, hath had 
common in the place where, for all his great beasts, at all times of the 
year, &c. ; and so justifies as an inhabitant. And it was thereupon de- 
murred, whether such a prescription and usage in a vill for the inhab- 
itants for common and matter of profit be good? 

After argument at Bar and Bench, it was resolved, that it was not 
good; for inhabitants, unless they be incorporated,^" cannot prescribe 
to have profit in another's soil, but only in matters of easement, as in a 
way or causey to church, or such like : so in matters of discharge, as to 
be discharged of toll, or of tythes, or in modo decimandi, or the like : 
but to have interest it cannot be ; for that ought to be by persons in- 
abled, who are always to have continuance : for if there should be such 
prescription, then, if any of the inhabitants depart from their ancient 
houses, and the house continues empty, the inheritance of the common 
should be suspended; which cannot be. Nor can such a common be 
released; for if one inhabitant should release, another which succeed- 
ed him might claim it; which is against the rules of law, that an in- 
heritance in a profit should not be discharged : and by such prescrip- 
tion a maid servant or child who resides in the house is said to be an 

10 Ace: Grubb v. Grubb, 74 Pa. 25 (1S73). 

A. claimed, by prescription of himself and his predecessors in title of a 
certain piece of land, as appurtenant thereto, the right to go on the ad- 
jacent land of B. and there cut down and carry away for all purposes the 
trees there growing. Held, A. cannot assert such a right by virtue of his 
ownership of the land. Bailey v. Stephens, 12 C. B. N. S. 91 (1862); see 
Heyward v. Cannington, 1 Siderfin, 354 (1668). 

A. owned a farm ; he conveyed in fee a strip to a railroad company. The 
deed contained the following clause: "Said parties of the first part to have 
the privilege of mowing and cultivating the surplus ground of said strip of 
land not required for railroad purposes." The farm was subsequently con- 
veyed to B. Held, B, does not have the right to cultivate the strip. Pierce 
v. Keator, 70 N. Y. 419, 26 Am. Rep. 612 (1877). 

2 See Boteler v. Bristow, Y. B. 15 E. 4, 129, pi. 7, (1475) ; White v. Cole- 
man, Freem. 134 (1673). Compare Sale v. Pratt, 19 Pick. (Mass.) 191 (1837). 

See. also, Goodman v. Mayor of Saltash, L. R. 7 A. C. 633 (1882) ; Johnston 
V, O'Neil, [1911] A. C. 552; Harris v. Chesterfield, [1911] A. C. 623, 



Ch. 1) PROFITS 17t 

inhabitant, and to have the benefit of the common ; which would be in- 
convenient. Wherefore they all resolved, that such a custom alledged 
by way of usage (not otherAvise) is not good; and adjudged it for the 
plaintiff. It was said to be so resolved in Trinity Term, 33 Eliz. Roll 
422. Lawrence v. Hull; and Coke cited, that in 19 Hen. 8, in Spel- 
man's Reports, it was adjudged accordingly in this court. Vide 7 
Edw. 4 pi. 26. 15 Edw. 4 pi. 29. 18 Edw. 4 pi. 3. 20 Edw. 4 pi. 10. 9 
Hen. 6 pi. 62. 18 Hen. 8 pi. 1." 



RACE V. WARD. 

(Court of Queen's Bench, 1855. 4 EI. & Bl. 702.) 

Lord Campbell, C. J.^^ The first count of the declaration is for 
breaking and entering the plaintiff's close in the township of Horbury, 
and committing various trespasses therein. The defendants justify 
under an immemorial custom in the said township for ail the inhabit- 
ants for the time being in the said township to have the liberty and priv- 
ilege to have and take water from a certain well or spring of water in 
the said close in which, &c., and to carry the same to their respective 
dwelling-houses in the said township, to be used and consumed therein 
for domestic purposes. 

The plaintfff demurs : and it has been argued before us that the plea 
is bad, because it claims a right for all the inhabitants of the township 
to take a profit a prendre in alieno solo. 

But we are of opinion that no such right is claimed by the alleged 
custom. The action is not for taking water the property of the plain- 
tiff ; and no such action could be supported unless the water were con- 
tained in a cistern or some vessel in which he had placed it for his pri- 
vate use. The defendants have to answer the charge of having unlaw- 
fully broken and entered the plaintiff's close, and trampled and injured 
his grass growing there, &c. In doing so they certainly claim a right by 
immemorial custom, in all the inhabitants of the township, to take wa- 
ter from a spring issuing from the close, and to carry it to their dwell- 
ing-houses for domestic purposes : but this claim is made with the 
view of excusing the alleged trespasses in entering the close and injur- 
ing the grass, &c. 

The water which they claim a right to take is not the produce of the 
plaintiff's close; it is not his property; it is not the subject of prop- 
erty. Blackstone, following other elementary writers, classes water 
with the elements of light and air. Vol. 2, p. 14. Afterwards, having 

21 Ace: Grimstead v. Marlowe, 4 T. R. 717 (1792); Smith v. Andrews, 
[1891] 2 Ch. 678 (fishing) ; Hill v.- Lord, 48 Me. S3 (1861), taking seaweed. 
, 22 Part of the opinion is omitted. 

1, BlG.RlGHTS — 12 



178 RIGHTS IN THE LAND OF ANOTHER (Part 2 

Stated that a man cannot bring an action to recover possession of a 
pool or other piece of water, either calculating its capacity, as for so 
many cubical yards, or by superficial measure for twenty acres of wa- 
ter, he gives the i:eason: "For water is a movable wandering thing, 
and must of necessity continue common by the law of nature." lb. p. 
18. It is not disputed that this would be so with respect to the water of 
a river or any open running stream. We think it is equally true as to 
the water of a spring, when it first issues from the ground. This is no 
part of the soil, like sand, or clay, or stones ; nor the produce of the 
soil, like grass, or turves, or trees. A right to take these by custom, 
claimed by all the inhabitants of 3. district, would clearly be bad ; for 
they all come under the category of profit a prendre, being part of the 
soil or the produce of the soil: and such a claim, which might leave 
nothing for the owner of the soil, is wholly inconsistent with the right 
of property in the soil. But the spring of water is supplied and renew- 
ed by nature ; it must have flowed 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. While it remains in the field 
where it issues forth, in the absence of any servitude or custom giving 
a right to others, the ©.wner of the field, and he only, has a right to ap- 
propriate it ; for no one else can do so without committing a trespass 
upon the field ; but, when it has left his field, he has no more power 
over it, or interest in it, than any other stranger. 

For these reasons it has been considered that the inhabitants of a dis- 
trict may, by custom, have a right to go upon the soil of another to take 
or to use water. On examining the Yearbook, Trin. 15 Ed. 4, fol. 29 A. 
pi. 7, cited at the bar, it would appear that Genney, as counsel, says 
it would be a good prescription that all the inhabitants in such a vill 
have used from time immemorial to have the water in such a pond to 
drink, &c. Catesby, then a judge, assents to this, and he likens it to 
a custom for all the fishermen, inhabitants in a particular vill, to have 
a right to dry their nets on a particular close. There the word "pre- 
scription" is used ; but there is no prescription stated in a que estate ; 
and a customary right by reason of inhabitancy in a particular district 
is evidently described and intended. 

In Weekly v. Wildman, 1 Ld. Raym. 407, we find certain obiter dicta 
upon this subject which are entitled to some weight. "Blencowe, J. 
Inhabitants may have a custom to have pot water, which is an interest, 
and not barely an easement. But Powell, J., denied that, and said that 
it is only an easement." Both these learned Judges agree that inhabit- 
ants may have a right to enter the soil of another to take pot water; 
and only differ as to the name to be given to it, * * * 

The authorities relied upon by Mr. Unthank are not inconsistent with 
this doctrine. His quotation from Bracton does not prove that the 
right to take water when flowing in its natural course is a profit a 
prendre; and the learned author of that treatise, by the words he uses 
immediately after, shows that he was well aware of the distinction 



Ch^ 1) PROFITS 179 

between such water and water in a cistern, which is the subject o£ pri- 
vate property. 

In Wickham v. Hawker, 7 M. & W. 63, the Court of Exchequer 
held that a "liberty, with servants or otherwise, to come into and upon" 
lands, "and there to hawk, hunt, fish, and fowl," is a profit a prendre 
within the prescription act, 2 & 3 W. 4, c. 71 : but that liberty and a 
liberty to take water are so different that they furnish no safe analogy 
to guide us in this case. 

In Blewett v. Tregonning, 3 A. & E. 554 (E. C. L. R. vol. 30), this 
Court held an alleged custom to be bad for all the inhabitants occupy- 
ing lands in a district to enter a close, and take therefrom reasonable 
quantities of sand which had drifted thereupon, for the purpose of 
manuring their lands. The reason was that the drifted sand had be- 
come part of the close, so that the claim was to take a profit in alieno 
solo : but the water to be taken never had become part of the close ; 
nor was it the produce of the close. 

The plaintiff's counsel lastly referred to the recent decision of the 
House of Lords in Dyce v. Lady James Hay, 1 Macqueen, 305, in 
which the Lord Chancellor said that neither by the law of Scotland or ^.^^ -, 
of England can there be a prescriptive right, in the nature of a servi- . ' 
tudej)r easement, so large as to preclude the ordinary uses of property 
by the owner oFlhe lands affected. But no such consequence will fol- (7 ,*' /" 

low from the customary easement claimed in the present case; and it ;' ' '' 
does not interfere with the ordinary uses of the plaintiff's close so 
much as the custom would which was held to be valid in Tyson v. 
Smith, 6 A. & E. 745 (E. C. L. R. vol. ZZ), 9 A. & E. 406 (E. C. L. R. 
vol. 36), that, at fairs holden on the waste of a manor, every liege sub- 
ject exercising the trade of a victualler might enter, at the time of 
the fairs, and erect a booih, and continue the same a reasonable time 
after the fairs, for the more convenient carrying on his calling. 

As to customary rights claimed by reason of inhabitancy, the d is- 
tinction has always been between a mere easement and a profit a pren- 
dre^ A custom for all the inhabitants of a vill to dance on a particular 
close at all times of the year, at their free will, for their recreation, has 
been held good, this being a mere easement ; Abbot v. Weekly, 1 Lev. 
176; and we held, last Term, that, to a declaration for breaking and 
entering the plaintiff's close and taking his fish, a custom pleaded for 
all the inhabitants of the parish to angle and catch fish in the locus in 
quo was bad, as this was a profit a prendre, and might lead to the de- 
struction of the subject-matter to which the alleged custom appli- 
ed. * * * 

Judgment for the defendants.^' 

2 3 The privilege of piling lumber upon the land of another cannot be ob- 
tained by custom. Talbott v. Grace, 30 Ind. 389, 95 Am. Dec. 704 (1S08) ; 
Littlefield v. Maxwell, 31 Me. 134, 50 Am. Dec. 653 (1S50); Ackerman v. 
Shelp, 8 N. J. Law, 125 (1825) ; Post v. Pearsall, 22 Wend. (N. Y.) 425 (18391. 



180 EIGHTS IN THE LAND OF ANOTHER (Part 2 

CHAPTER II 

EASEMENTS 



SECTION 1.— GENERAL PRINCIPLES OF EASEMENTS 



ABBOT V. WEEKLY. 

(Court of lOng's Bench, 1665. 1 Lev. 176.) 

Trespass for breaking his close; the defendant prescribes, that all 
the inhabitants of the vill, time out of memory, &c. had used to dance 
there at all times of the year at their free will, for their recreation, and 
so justifies to dance there: issue was on the prescription, and a ver- 
dict for the defendant, and to save his costs the plaintiff moved in ar- 
rest of judgment, that this prescription to dance in the freehold of an- 
other, and spoil his grass, was void, especially as it is laid, viz. at all 
times of the year, and not at seasonable times ; and that 'twas also ill 
laid in the inhabitants, who although they may prescribe in easements, 
as 6 Co. Gateward's case, and some other books are, yet they ought to 
be easements of necessity, as ways to a church, &c. and not for pleasure 
only, as this case is. Secondly, If it be good, it ought to have been laid 
by way of custom in the town, and not by prescription in the persons , 
and a case was cited, where 'twas so adjudged on a demurrer: but 
by the Court, this is a good custom, and it is necessary for inhabitants 
to have their recreation. And as to the second, that though perhaps it 
had been ill on a demurrer, yet issue being taken there on and found 
for the defendant, 'tis good ; and judgment was given for the defend- 
ant.^ 

lAcc: Knowles v. Dow, 22 N. H. 387, 55 \va. Dec. 163 (1851), on the 
ground that twenty years' use .iustifies the finding of immemorial use. A 
custom "for all persons for the time being, being in a certain parish," to 
play games upon a specified close, was held bad in Pitch v. Bawling, 2 H. 
Bl.'393 (1795). See, also, Mousney v. Ismay, 1 H. & C. 729 (1863). 



C ^K-t, <S<x.-^^^Cc-»^ 



Ch. 2) EASEMENTS 181 



GRAHAM V. WALKER et ux. 

(Supreme Court of Connecticut, 1905. 78 Conn. 130, 61 Atl. 98, 2 L. K. A. 
[N. S.] 983, 112 Am. St. Rep. 93, 3 Ann. Cas. (>41.) 

Action in the nature of trespass qu. cl. fr., brought by appeal from 
a judgment of a justice of the peace to the court of common pleas in 
New London county, and tried by jury before Noyes, J. ; verdict and 
judgment for the plaintiff for one cent damages, and appeal by the de- 
fendants. Error and new trial ordered. 

Baldwin, J. The answer contained three separate defenses — a gen- ' 

eral denial ; an entry in the exercise of a pres criptive right of way to ^ 

and from Taftville, appurtenant to a close of the defendants situated 
in a quarter of the town of Lisbon known as "Blissville" ; and an en- 
try in the exercise of a right of way to and from Taftville, belonging 
bymim^mOTialJocal^c^storn to all the inhabitants of BHssville. It was 
admitted that the land over which the way was alleged to exist was 
bounded by a highway, on the opposite side of which, at a distance of 
about half a mile, the defendants owned a house and farm, which was 
the close to which they claimed the way to be appurtenant. The de- 
fendants introduced evidence which, as they claimed, proved the exist- 
ence of each of the rights of way set up in their answer — the former 
by a continuous, uninterrupted, and adverse user for more than 15 
years by them and their predecessors in title in connection with the 
occupation, use, and enjoyment of their close, and the latter by a like 
user for more than 15 years by all the landowners and inhabitants of 
BHssville generally, and their tenants and employes. 

With respect to the third defense, the jury were instructed that if a 
substantial portion of the inhabitants of BHssville for an entire period 
of at least 15 years had uninterruptedly, continuously, adversely, and 
under a claim of right in behalf of all the inhabitants, passed over the 
land in question, to and from Taftville, with the knowledge of the own- 
er of the land, a right of way in favor of all the inhabitants was there- 
by acquired, founded on custom, which attached to every one who for 
the time being was such an inhabitant, while he continued to be such ; 
that, if such a user was open, notorious, and visible, the owner of the 
land was charged with notice of it; that a user would be continuous 
and uninterrupted, if it w ere substantially such, although it were more 
or less frequent, according to the nature of the way and the occurrence 
of occasions for traveling over it ; and that certain testimony which 
had been introduced by the plaintiff as to the existence of other paths 
and their use by the inhabitants in going to and from Taftville tend- 
ed in a measure to show that their use of the way claimed was not con- 
tinuous, uninterrupted, and customary. 

These instructions are made a ground of appeal by the defendants. 
They were too favorable to the defense. A right of way by custom in 
favor of the inhabitants of a particular locality might be set up by the 



IJl^^ .^^-y^-m\ 



'A 




182 RIGHTS IN THE LAND OF ANOTHER (Part 2 

common law of England. It could be proved by immemorial usage. 
From such proof a presumption was deemed to arise that the usage was 
founded on a legal right. This right was not assumed to arise from 
a grant by an owner of land of an easement in it. No grant of that 
nature can subject the tenement of the grantor to an easement which 
will outlast the life of the grantee, unless it be made in such a way as 
to become appurtenant to some other tenement. A right of way by 
custom appertains to a certain district or territory, but not to any par- 
ticular tenement forming 'part of that territory. Nor is it confined to 
owners of land within that territory.' It belongs to the inhabitants of 
that territory, whether landowners or not. To a fluctuating body of 
that kind no estate in lands can be granted. If, therefore, an easement 
be claimed to exist in their favor, a title cannot be made out by pre- 
scription, on the theory of a lost grant. It must have come, if at all, 
from some public act of a governmental nature. 

The theory of English law was that, if there had been a usage from 
time immemorial (that is, so far as could be ascertained, from the 
coronation of Richard I), affecting the use of real estate by those not 
able to show any paper title to warrant it, it might fairly be presumed 
that it arose under an act of Parliament or other public act of govern- 
ing power, the best evidence of which had perished. A charter from 
some feudal lord or ecclesiastical corporation might be such an act. 
Of such charters there were no public records. That the accidental de- 
struction of the parchment on which one was written should annul the 
privileges which it gave would be plainly unjust. 

The political and legal institutions of Connecticut have from the 
first differed in essential particulars from those of England. Feudal- 
ism never existed here. There were no manors or memorial rights. A 
recording system was early set up, and has been consistently main- 
tained, calculated to put on paper, for perpetual preservation and pub- 
lic knowledge, the sources of all titles to or incumbrances affecting real 
estate. Nor have we all the political subdivisions of lands which are 
found in England. An easement by custom may exist there in favor 
of the inhabitants of a city, county, town, hamlet, burgh, vill, manor, 
honor, or hundred. Co. Litt. 110b, 113b, 115b. Most of these terms 
denote forms of communities that are unknown in this state. Under 
our statute of limitations, also, rights of way may be established by a 
shorter user than that required by the English law. Coe .v, Wolcott- 
ville Mfg. Co., 35 Conn. 175; Gen. St. 1902, § 1073. 

During the greater part of the colonial era the common law of Eng- 
land was not deemed to form a part of the jurisprudence of Connecti- 
cut, except so far as any part of it might have been accepted and intro- 
duced by her own authority. Stat. (Ed. 1769) 1 ; Swift's System, I, 
44. Later the doctrine received the sanction of this court that it was 
brought here by the first settlers, and became the common law of Con- 
necticut so far as it was not unadapted to the local circumstances of 
\his country. Card v. Grinman, 5 Conn.164, 168. This court has never 






Ch. 2) EASEMENTS 183 

affirmed the recognition by our law of personal rights of way or other 
easements resting on local custom. In view of all the considerations 
named, we are of opinion that such rules of the English common law 
as gave them sanction were unadapted to the conditions of political 
society existing here, and have never been in force in Connecticut.^ 

It follows that the trial court erred in directing the jury to disregard 
the second defense. They were told in the first place to disregard it 
because the evidence of user introduced in its support was equally rel- 
evant to support the third defense, and if the defendants, as inhabitants 
of Blissville, had a personal right of way by local custom, their user, 
being consistent with that, could not be claimed to indicate the asser- 
tion and enjoyment of a way by prescription appurtenant to their par- 
ticular close. See Blewett v. Tregonning, 3 Adolphus & Ellis, 554. 
There being no such thing in Connecticut as a personal right of way 
established by custom, the evidence in question could only be pertinent 
to the second defense, and, if sufficient to support that, the defendants 
would have been entitled to a verdict. The defendants had themselves 
used the way in question only since they purchased their close, seven 
years before. To make out a prescriptive right, it was therefore nec- 
essary to tack the user by their predecessors in title. 

The trial court further instructed the jury particularly with regard 
to the second defense, that there had been no evidence that the use of 
the way by the defendants or their predecessors in title had any con- 
nection with the defendants' land, nor any direct relation to its use and 
enjbymeiif, since it differed in no respect from the use of the way by 
their neighbors, and therefore that no way appurtenant to their close 
had been made out. In this there was error. An easement may be ap- 
purtenant to land although the servient tenement is separated by other 
lands from the dominant tenement. * * * A right to convey water 
from a distant source of supply may be appurtenant to a tenement sep- 
arated from that on which such source of supply is situated by several 
intervening parcels of land, each belonging to a different proprietor. 
Cady V. Springsville Waterworks Co., 134 N. Y. 118, 31 N. E. 245. 
In like manner, a way from one close to and through another is none 
the less appurtenant to the former if it run over the intervening lands 
of numerous proprietors. Guthrie v. Canadian Pacific Railway Co., 
27 Ont. App. 64, 69 ; Horner v. Keene, 177 111. 390, 52 N. E. 492. See 
Fisk v. Ley, 76 Conn. 295, 56 Atl. 559. 

No reason is apparent why the same principles should not govern 
when a way is prescribed for as an appurtenance, which commences 
at a highway. In an early English case the plaintiff declared on a way 
to his close in D "in, by, or through a certain way in Sale," and in over- 
ruling a motion in arrest of judgment the court held that assuming 
the term "way," as thus used, to mean highway, while the plaintiff was 

2 Ace: Ackerman v. Shelp, 8 N. J. Law, 125 (1825). See Coolidge v. 
Learned, S Pick. (Mass.) 504 (1829). 



184 RIGHTS IN THE LAND OF ANOTHER ^ (Part 2 

in the exercise of a public right when on the highway he might pre- 
scribe for a way over adjoining ground reached from and by means 
of the highway. Banning's Case, Noy, 9. This is cited by Comyn as 
authority for the position that a private way may exist to the close of 
another, through or across the highway. Com. Dig., Ill, 37 "Chemin," 
D. So it has been held that a way may be appurtenant to a close though 
separated from it by a navigable river. Case of Private Road, 1 Ash- 
mead, 417, 421. That a way cannot be appurtenant to a close at which 
it neither begins nor ends has been often asserted by text-writers, and 
is not without countenance from judicial decision. Washburn on Ease- 
ments, *161 ; 23 Am. & Eng. Encyclop. of Law, 6, "Private Ways"; 
Whaley v. Stevens, 21 S. C. 221 ; Id., 27 S. C. 549, 558, 559, 4 S. E. 
145. 

The better reason stems to us to lead to a contrary conclusion, and 
to be supported by the rules of common law. An appurtenant way or- 
dinarily does touch the close to and from which it leads, and that 
it should is commonly essential to its enjoyment; but it is not always 
thus essential, and, when not, the dominant may be separated even 
at a long distance from the servient tenement.^ The use, however, of 
any easement, which can be claimed as an appurtenance by prescription, 
must be so related to the use of the dominant tenement that its partic- 
ular connection with the beneficial enjoyment of that tenement is not 
merely conjectural, but direct and apparent. A claim to a way by pre- 
scription appurtenant to a particular close being founded on the pre- 
sumption of a lost grant, none can be so gained unless the prescriptive 
use was such as to make it reasonable to presume that the owner of the 
land over which the way was used knew that such use was in connec- 
tion with and furtherance of the enjoyment of such close. He might 
be willing to concede a claim to a personal right of way which would 
cease with the life of the claimant, when he would dispute a claim to 
a right of way appurtenant .to another's close, which would endure 
forever. 

The fact that the respective closes of the parties were half a mile 
apart, and that the way was only accessible by the highway on which 
each of these closes abutted, did not conclusively bar a claim that the 
way was an appurtenance to that of the defendants. The testimony 
which they had introduced tended to show a long, adverse, and contin- 

8 In addition to the cases cited in the opinion, see Thorpe v. Brumflt, L. 
R. 8 Ch. App. 650 (1873); Louisville & N. R. R. v. Koelle, 104 111. 455 (1882); 
Winston v. Johnson, 42 Minn. 398, 45 N. W. 958 (1890). 

Compare Garrison v. Rudd, 19 111. 558 (1858). 

A. owned a farm upon which was a spring. He convej'ed a part of the 
farm to his son B. in fee, together with the right "to take water from my 
spring for his family use" ; he later conveyed another portion to his daughter 
C. in fee, together with "a privilege to take water from the spring on my 
farm as occasion may require." Held, C.'s easement was appurtenant to the 
land conveyed to her. Chase v. Cram, 39 R. I. 83, 97 Atl. 481, L. R. A. 
1918F, 444 (1916). Compare Coatsworth v. Hayward, 78 Misc. Rep. 194, 139 
N. Y. Supp. 331 (1912). 



Ch. 2) EASEMENTS 185 

uous user by the successive owners of their close, in connection with 
their use, occupation, and enjoyment of it in going thence to Taftville 
and back. Such a user, if proved to the satisfaction of the jury, might 
sufficiently establish a direct connection between the use of the close 
and the use of the way to bring it within the definition of a way ap- 
purtenant. That some or all of their neighbors might have a similar 
way, appurtenant to their closes, was immaterial. Kent v. Waite, 10 
Pick. (Mass.) 138. 

Other reasons of appeal require no discussion, as the questions pre- 
sented are not likely to recur on another trial. 

There is error, and a new tria l is ordered. The other Judges con- 
curred. 



ACKROYD V. SMITH et al. 
(Court of Common Pleas, 1850. 10 C. B. 164.) 

[Trespass qu. cl. f r. for breaking and entering a certain close of the 
plaintiff, which consisted of a road or lane running between the Brad- 
ford and Thornton turnpike road on one side and a certain other road 
known as Legram's Lane on the other side. The plaintiff was the 
owner subject to a mortgage to one Lister, and in possession of the 
locus in quo. He had also owned, subject to the same mortgage, cer- 
tain other adjacent parcels. He and the mortgagee by deed had con- 
veyed these other parcels in fee to one John Smith "together with all 
ways, paths, passages, particularly the right and privilege to and for 
the owners and occupiers, for the time being, of the said close, pieces, 
or parcels of land, or any of them, and all persons having occasion to 
resort thereto, of passing and re-passing, with or without horses, cat- 
tle, carts, and carriages, for all purposes, in, over, along, and through 
a certain road running between the Bradford !\nd Thornton turnpike 
road and Legram's Lane." 

The defendants in their plea set out the above-mentioned convey- 
ance and deduced a title in themselves by mesne conveyances of the 
above granted lands "and appurtenances," and alleged that thus being 
the owners of the parcels conveyed and having occs-sion for tlieir own 
purposes to use the right so granted they had passed over the road 
over which the way had been granted, and so justifief' the trespasses 
complained of. 

The plaintiff demurred, assigning for causes that the plea did not 
show that the trespasses justified were committed in going to or from 
the premises conveyed, or that they were in any manner connected with 
the enjoyment of these premises.] 

CrEswell, J.* * * * In support of the demurrer, it was con- 
tended, first, that the road granted was only for purposes connected 

4 The statement of facts is abridged and part of tlie opinion of (Jress-veU 
J., and the opinion of Wilde, C. J., are omitted. 



186 RIGHTS IN THE LAND OF ANOTHER (Part 2 

with the occupation of the land conveyed, and therefore was not suffi- 
cient to support tlie justification pleaded, and, secondly, that, if the grant 
was more ample, and gave to the grantee a right of using the road for 
all purposes, although they might not be in any way connected with 
the enjoyment of the land, it would not pass to an assignee of the land, 
and therefore the defendants could not claim it under a conveyance of 
the land, with the appurtenances. On the other hand, it was contended 
that the right created by deed might be assigned by deed, together with 
the land, and was large enough to maintain the justification pleaded. 

Upon consideration, we have come to the Conclusion that the plain- 
tiff is entitled to our judgment on the demurrer. 

If the right conferred by the deed set out, was only to use the road 
in question for purposes connected with the occupation and enjoyment 
of the land conveyed, it does not justify the acts confessed by the plea. 
But, if the grant was more ample, and extended to using the road for 
purposes unconnected with the enjoyment of the land — and, this, we 
think,, is the true construction of it^t becomes necessary to decide 
whether the assignee of the land and appurtenances would be entitled 
to it. In the case of Keppell v. Bailey, 2 Mylne & K. 517, the subject 
of covenants running with the- land, was fully considered by Lord 
Chancellor Brougham; and the leading cases on it are collected in his 
judgment. He there says: ° "The covenant (that is, such as will run 
with the land) must be of such a nature as 'to inhere in the land,' to 
use the language of some cases ; or, 'it must concern the demised prem- 
ises, and the mode of occupying them,' as it is laid down in others : 
'it must be quod ammodo annexed and appurtenant to them,' as one au- 
thority has it ; or, as another says, 'it must both concern the thing de- 
mised, and tend to support it, and support the reversioner's estate.' " 
Now, the privilege or right in question does not inhere in the land, does 
not concern the premises conveyed, or the mode of occupying them; 
it is not appurtenant to them. A covenant, therefore, that such a right 
should be enjoyed, would not run with the land. Upon the same prin- 
ciple, it appears to us that such a right, unconnected with the enjoy- 
ment or occupation of the land, cannot be annexed as an incident to it : 
nor can a way appendant to a house or land be granted away, or made 
in gross ; for, no one can have such a way but he who has the land 
to which it is appendant: Bro. Abr. Graunt, pi. 130." 21_.?:->YSy_be 
granted in gross, it is personal only, and cannot be assigned. So, coiy- 
mon in gross sans nombre may be granted, but cannot be granted over 
— per Treby, C. J., in Weekly v. Wildman, 1 Ld. Raym. 407. It is 
not in the power of a vendor to create any rights not connect ed w ith 

2 Mylne & K. 537. 

6 Citing 5 H, 7, 7 (M. 5 H. 7, fo. 7, pl. 15): "Note, tbat it was said by 
Fairfax (Justice of C. P.) for law, tbat, if one has a way appendant to his 
manor, or to his bouse by prescription, that way cannot be made in gross ; 
because no man can tal^e profit of tbat way, except he have the manor or the 
house to which the way is appendant." 



Ch. 2) EASEMENTS 187 

the use or en|oyment of the land, and annex them to it: nor can the 
ovyner of land render it subject to a new species of burthen, so as to 
bind it in the hands of an assignee. "Incidents of a novel kind cannot 
be devised, and attached to property, at the fancy or caprice of an}' 
owner." Per Lord Brougham, C, in Keppel v. Bailey. 

This principle is sufficient to dispose of the present case.. It would 
be a novel incident annexed to land, that the owner and occupier should, 
for purposes wholly unconnected with that land, and merely because he 
is owner and occupier, have a right of road over other land. And it 
seems to us that a grant of such a privilege or easement can no more 
be annexed, so as to pass with the land, than a covenant for any col- 
lateral matter. 

The defendants cannot, therefore, as assigns, avail themselves of the 
grant to John Smith ; and our judgment must be for the plaintiff. 

Judgment for the plaintiff. 



BOATMAN v. LASLEY. 

(Supreme Court of Ohio, 1873. 23 Oliio St, 614.) 

Motion for leave to file a petition in error to the District Court of 
Gallia county. 

The original action was brought in the Court of Common Pleas of 
Gallia county by Matthew Lasley against Isaac Boatman and wife, to 
f oreclose a mortgage executed by the defendants to secure the payment 
of purchase money of the lands mortgaged. The mortgaged premises 
had been conveyed by the plaintiff to defendant, Isaac Boatman, on 
the 15th of March, 1870, by a deed containing a covenant that the de- 
mised premises were free and clear of all incumbrances. The defend- 
ant aniwered, and by way of counterclaim, alleged damages resulting 
from a breach of this covenant against incumbrances. The alleged in- 
cumbrance consisted of a private right of way over the warranted,prem- 
ises, outstanding at the date of the conveyance in one Alexander Logue. 
This right of way had been granted by deed, on the 7th day of June, 
1862, by the warrantor, to "Logue, his heirs and assigns, and the ten- 
ants or occupiers for the time being of the lands now (then) owned and 
occupied by the said Alexander Logue, in section 15, town 5, of range 
14, in the Ohio Company's Purchase. It is also alleged in the answer, 
that, before the 15th of March, 1870 (the date of the covenant), said 
Logue had conveyed his lands in section 15, town 5, of range 14, in 
the Ohio Company Purchase, to one George W. Roush. It is not al- 
leged, however, that Logue, at the time the right of way over the war- 
ranted premises was granted to him by the plaintiff, was the owner or 
occupier of any land in said section 15, or elsewhere, nor is it alleged 
that the right of way complained of became appendant or appurtenant 
to anv land whatever, or that said Roush had any interest in said right 



188 RIGHTS IN THE LAND OF ANOTHER (Part 2 

The plaintiff, in his reply, denied that Roush had an easement or right 
of way on the premises granted to the defendant, and also denied that 
the defendant had sustained any damage by reason of the right of way 
complained of. 

The cause was submitted to a jury, who assessed the defendant's 
damages, by reason of the existence of the right of way, at $100, which 
sum was deducted from the mortgage debt, and decree entered in favor 
of the plaintiff for tlie balance. 

During the trial the defendant took a bill of exceptions, from which 
it appears that the defendants offered in evidence the deed for the right 
of way from Lasley to Logue, a copy of which is attached, marked 
"A." They also gave evidence tending to prove that said right of way 
was still in the occupation of said Alexander Logue, and those claim- 
ing under him, who were then occupying the lands to which said right 
of way was intended to be made appendant. "And the plaintiff, to 
maintain the issue on his part, gave evidence tending to show at the 
time said deed of right of way was executed by him to Alexander 
Logue, the said Logue did not own the land to which the right of way 
was intended to be appendant, and that said Logue had, prior to the 
execution of the deed of right of way, conveyed said lands to one 
George W. Roush." 

The evidence being closed, the court charged the jury as follows: 
"If the jury shall find from the evidence that at the date of the deed 
made by Lasley to Logue, marked *A,' the said Alexander Logue, gran- 
tee therein, was not the owner in fee or otherwise of some real estate 
adjoining the farm through which said right of way is granted, or 
situate in the neighborhood, so that said right of way may become ap- 
purtenant to the same, then the said deed conveys a right of way per- 
sonal to himself alone — one which can not descend to his heirs, and 
one which he can not assign or release to another person, excep! such 
other person be the owner of the farm through which said way was 
granted." 

The judgment of the Common Pleas was afterward, on petition in 
error, affirmed by the District Court of Gallia county. 

Leave is now asked to file a petition in error in this court to reverse 
the judgment below, for alleged error in the charge to the jury as 
above set forth.- 

McIlvaine, J. Is a private right of way over the lands of another, 
in gross, such an interest or estate in land, as may be cast by descent, 
or may be assigned by the grantee to one who has no interest in the 
land? These are the only questions in this case. If such a right be 
inheritable or assignable, the Court of Common Pleas erred in its 
charge ; otherwise there is no error in the record. 

The terms of the deed from Lasley to Logue plainly import an in- 
tention to make the right of way therein granted appendant and ap- 
purtenant to other lands, but the record does not disclose either the 
facts or the law given to the jury, whereby it could determine whether 



Ch. 2) EASEMENTS 189 

or not tliat intention was accomplished. It simply shows that the jury 
was instructed that if tlie right of way granted did not and could not, 
under the circumstances, become appurtenant to lands other than those 
over which it was granted, then it was a mere personal right in the 
grantee, which could not be inherited from him, or transferred by him 
to a stranger. 

The correctness of this instruction does not depend upon a construc- 
tion of the deed by which it was granted, for the terms of the grant 
are "to Alexander Logue, his heirs and assigns." The real question is, 
whether or not a private right of way in gross is, in law, capable of 
being transferred or transmitted. 

It is strongly insisted upon, in argument, that a right of way in gross 
may be conveyed to the grantee "and to his heirs and assigns forever," 
because an owner in fee may carve out of his estate any interest less 
than the whole and dispose of the less estate absolutely; and this be- 
cause the power to dispose of the whole estate includes a power to dis- 
pose of any part of it. 

This argument assumes the affirmative of the very question in con- 
troversy, to wit, that such a right of way is an interest or estate in 
the land. 

A mere naked right to pass and repass over the land of another, a 
use which excludes all participation in the profits of the land, is not, 
in any proper sense, an interest or estate in the land itself. Such a 
right is in its nature personal ; it attaches itself to the person of him 
to whom it is granted, and must die with the person. 

If such right be an inheritable estate, how will the heirs take? In 
severalty, in joint tenancy, coparcenary, or as tenants in common? If 
not in severalty, how can their interests be severed? 

If it be assignable, what limit can be placed on the power of aliena- 
tion? To whom and to how many may it be transferred? Why not 
to the public at large, and thus convert into a public way that which 
was intended to be a private and exclusive way only ? 

Where the way is appendant or appurtenant to other lands, very dif- 
ferent considerations arise. There the right attaches to the lands to 
which the way is appurtenant, because it is granted for the convenience 
of their occupation without respect to the ownership or number of oc- 
cupants. In such case the right of way passes with the dominant es- 
tate as an incident thereto. A right of way appendant cannot be con- 
verted into a way in ^ross, nor can a way in gross be turned into a 
way appendant. 

A very marked distinction also exists between a way in gross and 
an easement of profit a prendre ; such as the right to enter upon the 
lands of anotlier, 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. Post v. Pear- 
sail, 22 Wend. (N. Y.) 432. 



390 EIGHTS IN THE LAND OF ANOTHER (Part 2 

Both upon principle and authority, we think there was no error in 
the charge of the court below. Mr. Washburn in his work on Ease- 
ments, page 8, par. 11, states the law upon this subject as follows: "A 
man may have a way in gross over another's land, but it must, from its 
nature, be a personal right not assignable or inheritable ; nor can it be 
made so by any terms in the grant, any more than a collateral and in- 
dependent contract can be made to run with the land." See also Ack- 
royd V. Smith, 10 C. B. 164; Garrison v. Budd, 19 111. 558; Post v. 
Pearsall, 22 Wend. (N. Y.) 432; Woolrych on Ways, 20; 2 Black 
Com. 35; 3 Kent's Com. 420, 512. 

Leave refused.'^ 



STANDARD OIL CO. v. BUCHI et ux. 
(Court of Chancery of New Jersey, 1907. 72 N. J. Eq. 492, 66 Atl. 427.) 

PiTNSY, Advisory Master.* The object of the bill is to obtain ju- 
dicial restraint preventing the defendant from interfering by strong 
hand and serious threats of violence with the complainant's work in 
laying across the lands of the defendant in Bergen county a line of pipe 
for the transportation of oil. * * * 

The complainant claims the right in question by virtue of a deed 
dated the 30th day of October, 1882, and duly recorded on the 6th day 
of December, 1882, in the clerk's office of Bergen county, where the 
lands lie, between James H. Kingsland, predecessor in title of the de- 
fendant and then the owner of the lands in question, and one John B. 
Barbour, under whom the complainant claims. That deed, or so much 
of it as is necessary for present purposes, is as follows : "Witnesseth : 
That for and in consideration of five dollars in hand paid, the receipt 
of which is hereby acknowledged and the further sum of twenty dol- 
lars to be paid before any pipe is laid, the party of the first part, his 
heirs and assigns, hereby grants to the party of the second part, his 
heirs and assigns, the right of way to lay pipes for the transportation 
of petroleum ; and operate the same on, over and through his lands 
in said County of Bergen, in said State of New Jersey, described in a 
certain deed dated Sept. 13th 1881, and recorded in the County Clerk's 
office of Bergen County, in book Z-10 page 542 of deeds, together 
with all the rights and privileges incident and necessary to the enjoy- 
ment of this grant, and the removal of said pipes. * * * It is un- 
derstood and agreed between the parties hereto that said pipe lines are 
to be laid within ten feet of the southerly lines of the above described 
property, excepting where there are angles in said property lines at 
which points such deflections shall be made therefrom as the surveyor 

7 Contra: Shreve v. Mathis, 63 N. J. Eq. 170, 52 Atl. 234 (1902). 

See Hall v. Armstrong, 53 Conn. 554, 4 Atl, 113 (1885); Wilder v. Wheeler, 
60 N. H. 351 (1880). 

8 Part of the opinion is omitted. 



Ch. 2) , EASEMENTS 191 

of the party of the second part may decide to be necessary. Witness 
our hands and seals the day and year first above written. [Signed] 
Jas. H. Kingsland. [Seal.] J. B. Barbour. [Seal.]" 

The bill alleges, and in this respect is supported by the affidavits, or 
at least is not disputed on this motion, that the grantee, Barbour, was 
a mere agent or trustee for procuring the right of way (and land for 
pumping stations) for a continuous underground series of pipes con- 
ducting petroleum from Pennsylvania and other oil-bearing regions to 
tide water. That in 1880 he purchased certain land in Bergen county 
from a Mrs. Zabriskie, and an adjoining tract from one Knowles, for 
the purpose of a pumping station, which he immediately conveyed to 
the Standard Oil Company, and that the deed above mentioned from 
Kingsland was also taken by said Barbour as a part of the right of 
way for a great pipe line system for conducting oil from the oil regions 
to tide water, and shortly afterwards was assigned and conveyed to the 
complainant and a continuous line of oil-bearing pipe was laid over it, 
including the Kingsland strip, and pumping stations erected and the 
pipe line put in use for tlie purpose of conveying oil, and has been in 
use ever since ; that later on, in 1894, a second pipe line was laid along- 
side the first along the entire length of the Kingsland property and put 
in immediate use, and that the object of the present proposed interfer- 
ence with the soil of the defendant is to lay a third pipe line over the 
whole right of way close beside the first. 

The justification set up by the defendant amounts to a demurrer to 
the bill, and the argument in its support may be briefly stated as fol- 
lows : That the grant contained in the Kingsland deed amounted to no 
more than the grant of an easement without the naming of any dom- 
inant tenement, and therefore amounted to no more than an easement 
in gross, which was not assignable, and hence amounted to a mere li- 
cense, and was determinable at the will of the licensor; that the license 
was in law immediately abandoned by the assignment thereof, and that 
it was also formally determined by a notice of revocation given by the 
defendant Buchi to the complainant, dated March 5, 1907, and annex- 
ed to the bill of complaint. 

The first inquiry naturally is : what is the true character of the grant 
in question? Is it properly classified either as a mere easement or as 
a mere revocable license? It is to be observed, in the first place, that 
it is an instrument under seal, and expresses to be for a valuable con- 
sideration presently paid, with the provision for the ascertainment of 
a further consideration in a mode, the reasonableness of which seems 
to me to be quite apparent and which has not been attacked in the argu- 
ment. In the next place, it is not a mere promise to do something in 
the future, nor is it a mere permission, but it is a grant in prsesenti, 
and it is not a mere privilege given to tlie grantee which can be con- 
sidered as merely personal to him, such as a privilege to wander over 
ground with or without the privilege of hunting or fishing, but it is 



193 RIGHTS IN THE LAND OF ANOTHER (Part 2 

made to the grantee, his heirs and assigns. Then it is not the mere 
privilege to walk or pass over land without the right to disturb the soil, 
as is a right of way, but it is a "right to lay down pipes for the trans- 
portation of petroleum and to operate the same over" the lands, "to- 
gether with all the right and privileges incident and necessary to the 
enjoyment of the grant and the removal of the pipes." This grants 
rights in the soil in perpetuo. 

Now just here the defendant attempts to meet this aspect of the case 
by setting up that he does not propose to dispute or disturb what has 
already been done under the so-called license, or to interfere with the 
complainant in the enjoyment of its works already on his land, but he 
claims the right to prevent any. further exercise of the rights mentioned 
in the grant. Nor does he contend that the right to lay the third line 
of pipes is not included in the terms of the grant. Nor does he con- 
tend that there ,is anything inequitable in the complainant's standing 
before the court. On the contrary, hfe puts himself on the bold, bare 
ground that, because there was no dominant tenement mentioned in 
the grant to which what would have been an easement was appurtenant 
or appendant, the easement so called became one in gross and not as- 
signable, and by its attempted assignment ceased to exist in law, or at 
least degenerated into a mere license revocable so far as not acted upon. 

Now, is it possible to treat the document in question as having no 
greater force than that? The doctrine contended for, if logically ap- 
plied, leads to this result: If Mr. Barbour had paid Mr. Kingsland 
$1,000 in cash for this grant, and had tlie next day assigned it to the 
complainant, it would have been possible for Kingsland to have imme- 
diately destroyed the value in the law of his grant by a formal revoca- 
tion of it, and the complainant would have had no relief in equity by 
showing that Barbour was acting merely as its agent ; for it is not con- 
tended by the defendant that the Standard Oil Company has not the 
capacity in law of holding the title to and operating a pipe line such as 
that described and in actual use. And it is to be observed that the ques- 
tion is not whether in the then present condition of the law the Stand- 
ard Oil Company had the right to acquire by condemnation proceed- 
ings the lands and rights of way for its pipe line and pumping stations 
from the western oil fields to tide water, but the question is whether, 
having first purchased the lands and rights of way through agents, by 
means of divers conveyances which did not disclose, so far as relates 
to mere rights of way, any termini or dominant tenement, it could have 
been prevented by any one of the grantors from proceeding to lay its 
pipe across the grantor's land, or, rather, whether, having acquired title 
in that manner, by grants which provided in effect the right to add to 
its pipe line from time to time, and having acted upon those grants so 
obtained, and having built a great trunk line and being in possession 
and use thereof, it may be prevented from adding thereto on the ground 
here taken. * * * 



Ch. 2) EASEMENTS 193 

The idea underlying the ordinary easement is that it is at the ex- 
pense of one tenement, called the "servient" tenement, and for the 
benefit especially of another tenement, called the ''dominant'' tenement. 
Clearly the right granted by the deed in this case was not of that char- 
acter, and hence it must be construed by rules not applicable to those 
of ordinary easements. There was in this case, and could in the nature 
of things be, no dominant tenement. Nor is it, in its essential nature 
a license, nor can it be reduced in its nature in that respect. It by its- 
terms granted a permanent right to lay the pipe, to maintain the same, 
and to remove the same. It gave an interest in the land quite as posi- 
tive and as permanent as that in which a deed is given granting the 
right to lay a line of water pipes or to erect a line of telephone poles 
across the grantor's land, where the circumstances indicate that the 
work done thereunder was to be permanent. From these considera- 
tions, based on general and familiar principles, I come to the conclusion 
that the defendant's position is untenable, especially when urged in ? 
court of equity.^ * * * 

I think the present grant is something more than an easement, al 
though undoubtedly it includes easements, and I think that it is a great 
deal more than a license, in that it gives an irrevocable interest in the 
land and creates, by apt words, an estate, is expressed to be upon a 
consideration, and is sealed by the seal of the grantor. I can find no 
authority in any of the treatises or in any of the adjudged cases for 
holding that it is revocable. 

As in my judgment the right of the complainant is entirely clear and 
not subject^ to revoca tion, I think it is entitled to relief by way of im- 
mediate injunction.^" * * * 

9 The court here discussed the following cases: Ackroyd v. Smith, 10 C. 

B. 164 (1850) ; Goodrich v. Burbank. 12 Allen (Mass.) 459, 90 Am. Dec. 161 
(1866) ; Mavor, etc., of City of New York v. Law, 125 N. Y. 380, 26 N. K. 471 
(1891); East Jersey Iron Co. v. Wright, 32 N. J. Eq. 248 (1880); Eckert v.. 
Peters, 55 N. J. Eq. 379, 36 Atl. 491 (1896) ; Mitchell v. D'Olier, 68 N. J. Law, 
375, 53 Atl. 467, 59 L. R. A. 949 (1902) ; Wilkins v. Irvine, 33 Ohio St. 138 
(1877) ; Wood v. Leadbitter, 13 M. & W. 845 (1845) ; Wood v. Manley, 11 A. 
& E. 34 (1839) ; Berry v. Potter, 52 N. J. Eq. 664, 29 Atl. 323 (1894) ; Sked v. 
Pennington, 72 N, J. Eq. 599, 65 Atl. 713 (1907). 

10 Ace. : Goodrich v. Burbank, 12 Allen (Mass.) 459 (1866). 

A. conveyed to B. in fee a piece of land between two rivers, "reserving the 
right of erecting a log sluice and flume between my mill and the. mill of said 
grantees." Held, A. could convey this right in fee to C, the owner of an- 
other mill, who could use it for fluming logs to his mill as against B.'s gran- 
tee of the servient tract. Ring v. Walker, 87 Me. 550, 33 Atl. 174 (1895). 

A. granted to B., "his heirs and assigns forever," the right "to take water 
for his family and for any other purpose" out of a specitied well on A.'s 
land. Held, assuming the right to be in gross, B. could convey it in fee to 

C, who could enforce it against A.'s grantee of the servient piece. Poull v. 
Mockley, 33 Wis. 482 (1873). 

A. had a lease of a tract of land. He made a contract under seal with B., 

by which ho covenanted that B. should have the right to the exclusive use 

of the fences surrounding the tract for advertising purposes so long as A. 

or his assigns should occupy the land. A, assigned the lease of the t'-act 

Big. Rights — 13 



194 BIGHTS IN THE LAND OF ANOTHER (Part 2 

CADWALADER v. BAILEY et al. 
(Supreme Court of Rhode Island, 1891. 17 R. I. 495, 23 Atl. 20.) 

Bill in equity for an injunction. 

The bill shows that Joseph I. Bailey and Alfred Smith were ten- 
ants in common of a piece of land known as Bailey's Beach. .They 
conveyed a portion of -it in fee to one George Cadwalader, together 
~ with the right to place a bathing car on the remaining part of the beach. 
The deed also contained the following clause : 

"And we, the said Joseph I. Bailey and Alfred Smith, for ourselves, 
our heirs, executors, and administrators, do hereby covenant to and 
with the said George Cadwalader, his heirs and assigns, that no build- 
ing, excepting bathing-cars, shall ever be placed upon the marsh or 
beach called 'Bailey Beach'; that no building shall ever be placed to 
the westward of a line drawn southerly from Bellevue street, paral- 
lel to and distant five hundred and thirty-one feet westerly from the 
Ledge road, and that none shall be placed on a knoll overlooking said 
beach, and just north of the lower end of Bellevue street." ' * * * 

The bill further shows that the said George Cadwalader entered 
upon and took possession of the land to him conveyed, and thereafter- 
w-ards, on the 18th day of August, 1864, by deed duly executed, sold 
and conveyed to one William W. Tucker, his heirs and assigns, the 
land which the said George Cadwalader had received as grantee in 
the said deed of October 15, 1852; but that the said deed from Cad- 
walader to Tucker contains the clause : "It is understood and agreed 
that the grantor reserves to himself, his heirs and assigns, the cove- 
nants and stipulations contained in a deed from J. I. Bailey and A. 
Smith, dated October 15, 1852, against building on certain sites near 
the bathing beach, and the right of bathing on said beach." 

The bill further shows that the respondents are now seised and 
■ possessed of said marsh or beach called "Bailey's Beach," and of the 
land adjacent thereto, as heirs of the said Bailey and Smith, both 
of whom are deceased, or as heirs or devisees of the said Bailey, and 
as heirs of the said Smith, and have been so seised and possessed since 
the deaths, respectively, of said Bailey and of said Smith; that the 
said George Cadwalader died February 3, 1879, testate, leaving his 
wife, Frances Cadwalader, his sole devisee and legatee ;- that she died 
testate, January 9, 1880, leaving the complainant, John Cadwalader, 
her residuary devisee and legatee. The bill further shows that the 
respondents, notwithstanding said covenants in said deed of October 
15, 1852, contained, did, in the year 1890, erect, on the marsh or beach 

to C, who bought with notice of B.'s contract. Held, B. may enforce against 
C. the right to use the fence for advertising purposes. Willoughby v. Law- 
rence, 116 111. 11, 4 N. v.. 356, 56 Am. Rep. 758 (1880). 

See, also. Hall v. Ionia, 38 ^lich. 493 (187S) ; Columbia Water Power Co. 
V. Columbia Electric Street Railway, Light & Power Co., 43 S. C. 154, 20 S. 
E. 1002 (1894). 



Ch. 2) EASEMENTS 



195 



called "Bailey's Beach," a permanent_building of large size, and not 
bathing-cars, which building was placjed, and is by the respondents ^till 
maintained, on said marsh or beach, to the detriment of the complain- 
ant, and in violation of his rights under the said covenants, and with- 
out his consent, and in defiance of his protests. 

The prayer of the bill is that the covenants contained in said deed 
of October 15, 1852, may be declared valid and existent obligations 
upon the respondents ; that they may be required to make specific 
poiformance, thereof ; that said covenants may be declared in favor 
of the complainant, his heirs and assigns, as valid restrictions upon 
said marsh arid beach; and for an injunction. A plat of the premises 
is attached to and made part of said bill. 

The answer admits the material allegations in the bill to be true, ex- 
cept as to any wrongful or unlawful acts therein charged ; but avers 
and sets up that the complainant has no title to the easements granted 
in and by said deed of October 15, 1852 — First, because the same 
were wholly severed and extinguished by the reservation in the .deed 
from George Cadwalader to said William W. Tucker of August 18, 
1864; or, second, because said easements 'were appurtenant to the 
land conveyed by said deed to Cadwalader, of which land no portion 
is owned or possessed by the complainant} or, third, because said 
easements were not appurtenant to said land, (nor any land,) but 
were rights in gro ss belonging to said George, and not assignable nor 
inheritable nor devisable. A groimd plan of the bmlding is attached 
to and made part of the answ^er. 

TiLLiNGHAST, J.^^ * * * These covenants, in so far, at any 
rate, as they constitute a restriction against building upon the re- 
maining land of the grantors — and this is as far as we are called upon 
to consider them in this case — we think were manifestly intended by the 
parties to be restrictions in favor of the estate granted; or, in other 
words, that said, coven ant against building created a negative easement 
appurtenant to the premises conveyed. We cannot see that the parties" 
in making this restriction could reasonably have had any other object 
in view than that of securing and preserving to the granted premises 
an unobstructed prospect or view of the beach and sea — a most de- 
sirable right, in connection with summer residents in Newport. Said 
restrictions were well adapted to the accomplishment of that object. 
It was a useful and desirable object. Between the granted premises 
and the sea w-as the land of the grantors, out of which this estate was 
carved, and there was nothing to obstruct the view of the beach on 
which the grantee had stipulated for the right to place a bathing-car. 
It is apparent, from an inspection of the premises, that buildings placed 
upon that part of the land included in the restrictions mentioned,- and 
particularly upon the "knoll,'' would, to a greater or less extent, ob- 
struct the prospect seaward from the granted premises. It was the 

11 Part of the opinion is omitted. 



196 RIGHTS IN THE LAXD OF ANOTHER (Part 2 

possibility of such an obstruction, we think, which it was the intention 
of the parties to guard against. 

Furthermore, we fail to see that this restriction could have been in- 
tended for the purpose of making the bathing rights granted by said • 
deed "available and pleasant," as is contended by the complainant. 
For such buildings as might be constructed upon the restricted prem- 
ises would not, so far as we are able to discover, in any way interfere 
with said bathing rights. Said "knoll," in particular, is so situated that 
no building placed thereon could by any possibility obstruct or preju- 
dice said right. Moreover, the building which has been erected by the 
respondents upon the restricted premises (a large and commodious 
bathing pavilion) does not in any manner whatever interfere with said 
bathing right. The complainant is not the owner of any of the land 
conveyed by the respondents' ancestors in title to George Cadwalader 
in October, 1852, and has no interest in the execution of the covenant 
in suit; for, as already stated, said George Cadwalader conveyed the 
premises to which the easement in question was appurtenant to William 
W. Tucker in August, 1864, reserving to himself, his heirs and as- 
signs, the covenants and stipulations contained, in the deed from 
Bailey and Smith of 1852, against building on certain sites near the 
bathing beach, and the right of bathing on said beach. We think it not 
improbable that the purpose of said George Cadwalader in severing 
the easement from the estate was to prevent said Tucker and his suc- 
cessors in title from setting up the same against his (said Cadwalader's) 
right to build upon a lot of land which he purchased in October, 1852, 
which, as the record shows, was a part of the restricted premises, and 
upon which he subsequently built and occupied a house, which house 
the complainant is now occupying. 

But, however this may be, tlie_easement, being a negative easement 
appurtenant to the land conveyed, was extinguished by operation of 
law upon being severed therefrom, and hence is no longer in existence. 
The easem ent, being appurtenant to the land, cannot exist_a lone. ~It 
has no -standing apart from the dominant estate to which it was at- 
tached. Thus, as stated in Woolr\-ch on Ways, 13 ; " A wav app endant 
cannot be turned into a way in gross, because it is inseparably united 
to the manor or land to the which it is incident." And, a^ stated in 
Washb. Easem. (4Lh Ed.) 26: "Though a man may acquire an ease- 
ment in gross, like a right of way over another's land, separate and 
distinct from the ownership of any other estate to which it is ap- 
pendant, yet, if his right to such way result from his ownership of a 
parcel of land to which it is appendant, he cannot by grant separate 
the easement from the principal estate to which it is appendaiit^ so as 
to turn it into a way in gross in the hands of his grantee." See, also, 
Garrison v. Rudd, 19 111. 558, 564, and cases cited; 3 Greenl. Cruise, 
83; Ackroyd v. Smith, 10 C. B. 164; Hall v. Lawrence, 2 R. I. 218, 
242, 57 Am. Dec, 715, Furthermore, as stated in Trustees of Colum- 
bia College v. Lynch, 70 N, Y, 440, 26 Am, Rep, 615: "A negative 



Ch. 1') EASEMENTS 197 

ea sement, by whic h the owner of lands is restricted in their use, can 
^onlyjDC created by covenant in favor of other lands not owned by the 
gran tor and covenantor." See, also. Hills v. Miller, 3 Paige (N. Y.) 
254," 24 Am. Dec. 218. But for the reservation iu the deed from Cad- 
walader to Tucker, the easement created would doubtless have passed 
to the latter, whether the grant in terms had embraced it or not, and 
this would also be so whether such grant, in terms, embraced privileges 
and appurtenances or not. Washb. Easem. (4th Ed.) p. 40, and cases 
cited. 

It follows, then, that the complainant, never having owned the domi- 
nant estate described in the bill, has no standing in a court of equity to 
enforce rights which were appurtenant thereto. So far as the bathing 
rights are concerned, no question is made in this case concerning the 
right of enjoyment thereof by the complainant. For the reason above 
stated we are of the opinion that the complainant has not made out a 
case which entitles him to relief. The bill must therefore be dis- 
missed/* 



HILL v. TUPPER. 

(Court of Exchequer, 1863. 2 Hurl. & C. 121.) 

Declaration. — For that, before and at the time of the committing by 
the defendant of the grievances hereinafter mentioned, the plaijitiff 
was entitled to, and had and was possessed of, the sole and exclusive 
righ t or liberty to put or use boats on a certain canal called the Basing- 
stoke Canal, for the purposes of pleasure and to let the same boats for 
hire on the said canal for the purposes of pleasure. Yet the plaintiff 
says that, whilst he was so entitled and possessed as aforesaid, the de- 
fendant, well knowing the premises, wrongfully and unjustly disturbed 
the plaintiff in the possession, use, and enjoyment of his said right or 
liberty, by wrongfully and unjustly putting and using, and causing 
to be put and used, divers boats on the said canal for the purposes of 
pleasure, and by letting boats on the said canal for hire, and other- 
wise for the purposes of pleasure. By means of which said premises 

12ACC.: Blood v. Millard. 172 Mass. 65, 51 N. E. 527 (1S9S1, right to draw 
water ; Reise v. Enos, 76 Wis. 634, 45 N. W. 414, S L. R. A. 617 (1S90), right 
of way. Compare McKenna v. Brooklyn Union Elevated R, Co., 184 N. Y. 
891, 77 N. E. 615 (1906). 

Water rights in irrigation ditches under the Idaho statutes have been 
held transferable to the owners of other lands. Hard v. Boise Citv Irriga- 
tion & Land Co., 9 Idaho, 589, 76 Pac. 331, 65 L. R. A. 407 (1904). 

A. owned in fee a right in gross to a specified amount of water power. 
For twelve years he used it exclusively and continuously in connection with 
a mill also owned by him, and then mortgaged the mill to B., describing 
the property by metes and bounds, and not mentioning the ■ water power. 
The property with the power was worth $5,000 more than the mortgage 
debt; without the water power, it was worth $4,000 less than the mortgage 
debt. Held, the water power passed to the mortgagee. Bank of British 
North America v. Miller (C. C.) 6 Fed. 545 (1881). See, also, Fisher v. I'air, 
34 S. C. 203. 13 S. E. 470, 14 L. R. A. 333 (1890). 



19S RIGHTS IN THK LAND OF ANOTHER (Part 2 

the plaintiff was not only greatly disturbed in the use, enjoyment, and 
possession of his said right and liberty, but has 'also lost great gains 
and profits which he ought and otherwise would have acquired from 
the sole and exclusive possession, use, and enjoyment of his said right 
or liberty, and was otherwise greatly aggrieved and prejudiced. 

Pleas. — First : not guilty. Secondly : that the plaintiff was not en- 
titled to, nor had he, nor was he possessed of, the sole and exclusive 
right or liberty to put or use boats on the said canal for the purposes 
of pleasure, nor to let the said boats for hire on the said canal for 
the purposes of pleasure as alleged. — Issues thereon. 

At the trial, before Bramwell, B., at the London Sittings, after last 
Hilary Term, the following facts appeared : — Under the 18 Geo. 3, c. 
75, the Company of Proprietors of the Basingstoke Canal Navigation 
were incorporated with perpetual succession and a common seal, for 
the purpose of making and maintaining a navigable canal from the 
town of Basingstoke, in the county of Southampton, to communicate 
with the river Wey in the parish of Chertsey, in the county of Surrey. 
The lands purchased by the company of proprietors, under their par- 
liamentary powers, were by the Act vested in the Company, 

By the 100th section of the Act it is enacted : "That it shall and may 
be lawful for the owners and occupiers of any lands or grounds ad- 
joining to the said canal, to use upon the said canal any pleasure-boat 
or boats, or any other boat or boats, for the purpose of husbandry only, 
or for conveying cattle from one farm, or part of a farm, or lands, to 
any other farm or lands of the same owner or occupier, without in- 
terruption from the said company of proprietors, their successors or 
assigns, agent or agents, and without paying any rate or duty for the 
same ; and so as such boat or boats be not above seven feet in breadth, 
and do not pass through any lock to be made on the said navigation, 
without the consent of tlte said company of proprietors, their succes- 
sors or assigns, or be employed for carrying any goods, wares, or mer- 
chandise to market or for sale, or any person or persons for hire ; and 
so as the same shall not obstruct or prejudice the said navigation, or 
the towing-paths, or obstruct any boats passing upon the said naviga- 
tion liable to pay the rates or duties aforesaid; and the owner of all 
such pleasure-boats, or other boats, shall in his- own lands or grounds, 
make convenient places for such boats to lie in, and shall not suffer 
them to be moored or remain upon the said canal." 

The defendant was the landlord of an inn at Aldershot adjoining the 
canal, and his premises abutted on the canal bank. The plaintiff, who 
was a boat proprietor, also occupied premises at Aldershot on the bank 
of the canal, which he held under a demise from the company of pro- 
prietors, and by virtue of the demise claimed the exclusive right_ of 
letting out pleasure-boats for hire upon the canal, which was the right 
the defendant was alleged to have disturbed. 

The lease under which the plaintiff claimed this right was dated the 
29th of December, 1860, and by it, in consideration of the rents, cove- 



Ch. 2) EASEMENTS 199 

nants, and agreements therein contained, the said company of proprie- 
tors demised to the plaintiff, under their common seal, for the term of 
seven years from the 24th of June, 1860, at the yearly rent of i25., 
"All that piece or parcel of land containing nineteen poles or there- 
abouts, adjoining Aldershot wharf, situate in the parish of Aldershot 
aforesaid, and the wooden cottage or tenement, boathouse, and all other 
erections now or hereafter being or standing thereon, &c." (describing 
the premises by boundaries, and by reference to a plan), "together with 
the appurtenances to the same premises belonging; and also the sole 
and exclusive right or liberty to put or use boats on the said canal, 
and let the same for hire for tlie purposes of pleasure only." The lease 
contained various covenants framed with the object of preventing any 
interference by the plaintiff's pleasure-boats with the navigation of the 
canal, and a proviso for re-entry for any breach of the covenants. 

The evidence of the defendant was at variance with that acfduced on 
behalf of tlie plaintiff upon the question whether the defendant had 
ever let out boats upon the canal for hire, in the sense of a direct money 
payment. The defendant did not deny that he kept pleasure-boats, and 
used them upon the canal, but stated that he kept them for the use of 
his family ; he admitted, however, that gentlemen had come from time 
to time to his inn and used these boats for fishing and bathing. 

The learned Judge reserved leave to move to enter a nonsuit or ver- 
dict for the defendant, and left to the jury the question whether the 
defendant had obtained any pecuniary advantage from the boats. The 
jury found a verdict for the plaintiff" ; damages, a farthing. 

Pollock, C. B.^^ We are all of opinion that the rule must be abso- 
lute to enter the verdict for the defendant on the second plea. After 
the very full argument which has taken place, I do not think it netes- 
sary to assign any other reason for our decision, than^ that the case of 
Ackroyd v. Smith, 10 C. B. 164 (E. C. L. R. vol. 70), expressly de- 
cided that it is not competent to create rights unconnected with the use 
and enjoym ent of fand, and annex them to it so as to constitute a prop- 
erty in the grantee. This grant merely operates as a license or covenanf 
on the part of the grantors, and is binding on them as between them- 
selves and the grantee, but gives him no right of action in his own name 
fqr_any infringement of the supposed exclusive right.. It is argued 
that, as the owner of an estate may grant a right to cut turves, or to 
fish or hunt, there is no reason why he may not grant such a right as 
that now claimed by the plaintiff. The answer is, that the law will not 
allow it. So the law will not permit tEe~owner of ah estate to grant 
It alternately to his heirs male and heirs female. A^new^species of in- 
corporeal hereditament cannot be created at the will and pleasure of 
the owner of property ; but he must be content to accept the estate and 
"the right to dispose of it subject to the law as settled by decisions or 
controlled by Act of Parliament. A grantor may bind himself by cove- 
is The opinion of Bramwell, J., is omitted. 



200 RIGHTS IN .THE LAND OP ANOTHER (Part 2 

nant to allow any right he pleases over his property, but he cannot an- 
nex to it a new incident, so as to enable the grantee to sue in his own 
name for an infringement of such a limited right as that now claimed. 
Martin, B. I am of the same opinion. This grant is perfectly 
valid as between the plaintiff and the canal Company ; but in order to 
support this action, the plaintiff must establish that such an estate or 
interest vested in him that the act of the defendant amounted to an 
eviction. None of the cases cited are at all analogous to this, and some 
authority must be produced before we can hold that such a right can 
be created. To admit the right would lead to the creation of an in- 
finite variety of interest in land, and an indefinite increase of possible 
estates. The only consequence is that, as between the plaintiff and the 
canal Company, he has a perfect right to enjoy the advantage of the 
covenant or contract; and, if he has been disturbed in the enjoyment 
of it, he must obtain the permission of the canal Company 'to sue in 
their name. The judgment of the Court of Common Pleas in Ack- 
royd V. Smith, 10 C. B. 164 (E. C. L. R. vol. 70), and of Lord Broug- 
ham, C, in Keppell v. Bailey, 2 Myl. & K. 517, 535, are, in the absence 
of any case to the contrary, ample authority for our present decision.^* 

n Compare Schmoele v. Betz, 212 Pa. 32, 61 Atl. 525, 108 Am. St. Kep, 845 
(1905). 

It has been held that there can be no easement right to a breeze, Webb v. 
Bird, 13 C. B. N. S. 841 (1863) ; Chastey v. Ackland, [1895] 2 Ch. 389 ; nor 
to percolating water, Wheelock v. Jacobs, 70 Vt. 162, 40 Atl. 41, 43 L. R. A. 
105, 67 Am. St. Rep. 659 (1897). 

The following rights in addition to those considered in the other sections 
of this chapter have been recognized as easements. To maintain a signboard, 
Hoare v. Board of Works, L. R. 9 Q. B. Ca. 296 (1874) ; Moody v. Steggles, 
12 Ch. Div. 261 (1879) ; to have light and (through defined passages) air from 
the premises of another. Hall v. Brewing Co., 49 L. J. Ch. N. S. 655 (1880) ; 
to open a sluiceway on servient's land to relieve the dominant land from 
flood water, Simpson v. Godmanchester, [1896] 1 Ch, 214; to pile and hoist 
merchandise and to swing a projecting shutter, Richardson v. Pond, 15 Gray 
(Mass.) 387 (1860) ; to stretch a clothesline and hang clothes, Steiner v. Peter- 
man (N. J. Ch.) 63 Atl. 1102 (1906). See, further, part I, chapters II to VI, 
ante, and chapters IV and V, post. 

A. had a lease for years of a building. He assigned his interest in part 
of the building to B., reserving a right of passage in certain halls in that 
part of the building so assigned for the benefit of the part kept by him. 
Subsequently A.'s interest passed to X. and B.'s to Y., the lease meanwhile 
having been renewed. Held, X. may exercise the right of passage during 
the life of the lease and the renewal. Newhoft v. Mayo, 48 N. J. Eq. 619, 
23 Atl. 265, 27 Am. St. Rep. 455 (1891). 

An easement may be appurtenant to an estate for life, in which case 
it terminates with the life estate. Hofi:man v. Savage, 15 Mass. 130 (1818). 
Compare Rymor v. ISIcIlroy, [1897] 1 Ch. 528. 

An easement may be appurtenant to a profit. Hanbury v. Jenkins, [1901] 
2 Ch. 401, 421. 



Ch. 2) EASEMENTS 201 

SECTION 2.— SCOPE OF EASEMENTS 



HOWELL V. KING. 

(Court of Common Pleas, 1674. 1 Mod. 190.) 

Trespass, for driving cattle over the plaintiff's ground. The case 
was, A. has a way over B.'s ground to Black-Acre, and drives his 
beasts over B.'s ground to Black-Acre, and then to another place ly- 
ing beyond Black-Acre. And, whether this was lawful or no? was 
the question, upon a demurrer. 

It was urged, that when his beasts were at Black-Acre, he might 
drive them whither he would. 

On the other side it was said, that by this means the defendant might 
purchase a hundred or a thousand acres adjoining to Black- Acre, to 
which he prescribes to have a way ; by which means the plaintiff would 
lose the benefit of his land : and that a prescription presupposed a • r 

grant, and ought to be continued according to the intent of its original 
creation. 

The whole Court agreed to this. — And judgment was given for the ' 

plaintiff.''' 

I 

WILLIAMS V. JAMES. 

(Court of Common Pleas, 1867. L. R. 2 C. P. 577.) 

Declaration for trespass to land. 

Fifth plea, that one Ann Morgan was owner in fee of certain land, 
and was entitled by immemorial user to a right of way over the plain- 
tiff's land, on foot, and with waggons, carts, and horses, to a public 
highway from her said land, for the more convenient occupation there- 
of ; that Ann Morgan demised this land with its appurtenances to one 
Jenkins ; and that the alleged trespasses were the use of the right of 
way by the defendant, as the servant of Jenkins. 

Issue and new assignment of excess in the user of the way. 

At the trial before Pigott, B., at the spring assizes for Monmouth- 
shire, the following facts were proved: — Ann Morgan was owner in 
fee of a field called the Nine acre field, and of two other fields ad- 
joining, called Parrott's land. These three fields were in the occupa- 
tion of R. Jenkins. There was from time immemorial a right of way 
on foot, and for waggons, carts, and horses, from the Nine acre field 
over the plaintiff's land to a public highway. There was no right of 

lEAcc: Lawton v. Ward, 1 Ld. Raym. 75 (1696). Compare Tuttle v. Kil- 
roa, 177 Mass. 146, 58 N. E. 682 (1900). 



202 RIGHTS IX THE LAND OF ANOTHER . (Part 2 

way over the plaintiff's land from Parrott's land. In the summer of 
1866, Jenkins mowed the Nine acre field and Parrott's land, and stacked 
all the hay upon the Nine acre field. In September, 1866, Jenkins sold 
the hay to the defendant, who carted it over the plaintiff's land to the 
highway, which was the alleged trespass. 

The jury found, first, that there was_anJmmemoriaL.nghlL_Qlj^ 
from the Nine acre field to the highway; secondly, that the stacking 
of the hay was done honestly, and not to get the way further on ; third- 
ly, that there was no excess in the user of the way by the defendant, 
apart from the question of defendant's right to cart the hay grown on 
Parrott's land over the plaintiff's land ; fifthly, if Parrott's land hay 
could not be legally carried over the plaintiff's land, then damages 40s. 

Pigott, B., directed a verdict for 40s. to be entered for the plaintiff, 
with leave to the defendant to move to enter the verdict for him. 

A rule having been obtained accordingly — 

WiLLES, J. The distinction between a grant and pres^ri£tign_is 
obvious. In the case of proving a right by prescription the user of 
the right is the only evidence. In the ease of a grant the language of 
the instrument can be referred to, and it is of course for the Court to 
construe that language ; and in the absence of any clear indication of 
the intention of the parties, the maxim that. a grant must be construed 
most strongly against the grantor must be applied. Accordingly, in 
South Metropolitan Railway Company v. Eden, 16 C. B. 42, where a 
grant was produced without stating the object of the gsant, it was the 
opinion of the judges that the grant was general, and that the way 
in that case might be used to any part of the land to which the way 
was granted. 

I agree with the argument of Mr. Jelf that in cases like this, where 
a way has to be proved by user, you„cannot extend .the, puyiQS£s.Jor 
which the way may be used, or for which it might be reasonably in- 
ferred that parties would have intended it to be used. The land in 
this case was a field in the country, and apparently only used for rustic 
purposes. To be a legitimate user of the right of way, it must be used 
for the enjoyment of the Nine acre field, andJiQt colourably ioxMhs-X 
closes. I quite agree also with the argument that the right of way can 
only be used for the field in its ordinary use as a field. The right could 
not be used for a manufactory built upon the field. The use must be 
the reasonable use for the purposes of the jand. in the condition in 
which it was while the user took place. A right of way by user was 
here proved, and I think the verdict of the jury excludes the excess 
of the user charged by the plaintiff. Plonest user of the Nine acre 
field must have been understood by the jury in the large sense of bona 
fide and reasonable, not a user in order to get an advantage to which 
the defendant was not entitled. The finding of the jury was, that the 
land was used honestly, and not in order to get a right of way further 
on. This is equivalent to finding that the stacking of the hay on the 
Nine acre field was in the reasonable and ordinary use of it as a field; 



Ch. 2) EASEMENTS 203 

also that the carting was from the Nine acre field and not from Par- 
rott's land. I think both these propositions are included in the finding. 
I think, therefore, that the rule must be made absolute. We could 
not refuse this without splitting straws on a subject which ought to be 
dealt with substantially. The case has been well argued on both sides,- 
and Mr. Jelf has said all that could be said for the plaintiff.^* 



P 



PARKS V. BISHOP. 

(Supreme Judicial Court of Massachusetts, 1S7U. 120 Mass. 340, 21 Am. Rep. 

519.) 

Bill in equity alleging that the plaintiff' was the owner of the fee in 
the soil and of a right of way in a passageway leading from Purchase 
Street by land of the plaintiff to a shop of the defendant, which ad- 
joined the rear of a store of the defendant on Atlantic Avenue ; and 
praying that the defendant might be restrained from using the way as 
appurtenant to the land on which that store was built, or for the pur- 
pose of passing, or of carrying merchandise or other things, between 
that store and Purchase Street. The answer alleged that the defend- 
ant had acquired a right to such use by adverse, possession. 

Hearing before Wells, J., who ordered an injunction to issue, and re- 
served the case for the consideration of the full court, upon a report, 
the material part of which is stated in the opinion. 

Gray, C. J. The report of the judge, before whom this case was 
heard in the first instance, states the facts proved at the hearing, and 
his decision that the use of the way in question by the defendant, in 
the manner and for the purpose complained of, was not justified by 
any right acquired by Lakin (under whom the, defendant claims) 
through the use of the way by him as stated in the report, and that an 
injunction should issue, subject to the revision and determination of the 
full court upon the question, among others, "whether Lakin, upon the 
facts stated, had acquired such a right of way as to constitute a good 
defence." The report, being on the equity side of the court, submits 
to our revision all inferences of fact, as well as conclusions of law. 



16 Bovill, C. J., and Smitti, J., delivered concurring opinions. 

See Finch v. Raihvaj- Co., L. R. 5 Exch. Div. 254 (1879). 

A. owned a piece of land, appurtenant to which was a right of way over 
a private road on B.'s land. X. owned a tract of land adjoining A.'s, on 
which he was desirous of building. He rented A.'s piece by a parol lease at 
a rental of £1. per annum and hauled his building material over the private 
road, depositing it temporarily on the A. piece. The jury found that the way 
was really being us6d merely as a means of getting to the X. piece. Held, 
B. may recover against X. in trespass. Skull v. Glenister, 16 C. B. N. S. 81 
(1864). See McCullough v. Broad Exch. Co., 101 App. Div. 566, 92 iN. Y. 
Supp. 533 (1905), post, p. 287. Compare Kretz v. Fireproof Storage Co., 127 
Minn. 304, 149 N. W. 618, 955 (1914J. 



204 EIGHTS IN THE LAND OF ANOTHER (Part 2 

Wright V. Wright, 13 Allen, 207, 209; Stockbridge Iron Co. v. Hud- 
son Iron Co., 102 Mass. 45, 47. 

When a right of way to certain land exists by adverse use and en- 
joyment only, although evidence of the exercise of the right for a sin- 
gle purpose will not prove a right of way for other purposes, yet proof 
that it was used for a variety of purposes, covering every purpose re- 
quired by the dominant estate, in its then condition, is evidence from 
which may be inferred a right to use the way for all purposes which 
may be reasonably required for the use of that estate while substantial- 
ly in the same condition. Ballard v. Dyson, 1 Taunt. 279; Cowling 
V. Higginson, 4 M. & W. 245 ; Dare v. Heathcote, 25 L. J. (N. S.) 
Exch. 245 ; Williams v. James, L. R. 2 C. P. 577 ; Sloan v. HoUiday, 
30 L. T. (N. S.) 757. But if Jthe condition and character of the dom- 
inant estate are substantially altered — as in the case of a way to carry 
off wood from wild land, which is afterwards cultivated and built up- 
on; or of a way for agricultural purposes, to a farm, which is after- 
wards turned into a manufactory or divided into building lots — the 
right of way cannot be used for new purposes, required by the alter- 
ed condition of the property, and imposing a greater burden upon the 
servient estate. Atwater v. Bodfish, 11 Gray, 150; Willes, J., in L. 
R. 2 C. P. 582 ; Wimbledon Commons v. Dixon, 1 Ch. D. 362. 

In the present case, the report states that for more than twenty years 
Lakin had, in the shop abutting upon the passageway in question, a 
steam engine, which was driven by boilers in the larger building on the 
lot behind, and was used for operating the machinery in that building, 
the three stories of which were respectively occupied for a blacksmith's 
shop, a carriage shop, and a paint shop ; that there was a door in the 
wall between the two buildings, which was constantly used for the 
purpose of passing between them through the engine room and over 
the passageway; that the space in the passageway was occasionally 
used for the purpose of setting tires upon wheels, in connection with 
the work in the shop ; that all the coal for use under the boilers was 
brought in through the passageway, and deposited in the basement or 
cellar under the engine room, until used in the regular course of busi- 
ness ; and that the way was used generally as a back entrance or thor- 
oughfare, as convenience required, in connection with the shops oc- 
cupied by Lakin, without question or objection, foruHore thanjwenty.. 
years. 

These facts appear to the court to justify and require the conclu- 
sion that Lakin had acquired by prescription a right of way for all 
purposes reasonably necessary for a manufactory upon the two lots, 
and which, upon the buildings being destroyed by fire and rebuilt for 
a manufactory and storehouse, he was entitled to use for the purpose 
of bringing goods into the smaller building abutting upon the passage- 
way, to be thence hoisted up into the larger building, for storage and 
use therein ; that there has been no substantial alteration in the con- 
dition or character of the dominant estate, and no change, except in 



Ch. 2) EASEMENTS 205 

degree, in the exercise of the easement, and that for this reason the 
defendant has not exceeded his rights in the use of the passageway. 
Bill dismissed.^^ 



WATSON V. BIOREN. 

(Supreme Court of Pennsylvania, 1814. 1 Serg. & R. 227, 7 Am. Dec. 617.) 

l^his was an action on the case for disturbing the plaintiff in his right 
of way, and for stopping his water course. 

The cause was tried at Nisi Prius, before Tilghman, C. J., in Febru- 
ary, 1814, when a verdict was found for the plaintiff, subject to the 
opinion of the court in bank, upon the following facts : 

By deed, dated December 18th, 1805, Elisha Gordon and wife, con- 
veyed to the plaintiff a lot of ground, .on the south side of Chesnut 
street, containing ten feet in front on Chesnut street, and running 
back seventy-seven to a three feet wide alley, which leads into Or- 
phan's court or Carter's alley, with free and uninterrupted ingress, 
egress, and regress, &c. in common with the owners and occupiers of 
the lots adjoining the same, and of a water course over and along the 
said three feet wide alley, from the premises to Orphan's court. On 
the 14th of July, 1810, the plaintiff conveyed to John Conyers, all the 
said lot of ground, except a small piece three feet wide by thirteen feet 
long, at the southwest corner of the lot, adjoining the said alley, Con- 
yers afterwards sold this lot to the defendant, who owned the adjoining 
ground on the east, and was proprietor of the alley. The house and lot 

17 In addition to the cases cited in the court's opinion, see Baldwin v. 
Boston & M. R. R., 181 Mass. 166, 6.3 N. E. 428 (1902). 

A. claimed by prescription a right of way in a narrow passage over B.'s 
land, for the purpose of driving horned cattle to a building now used as a 
slaughterhouse, before that as a stable, and much earlier as a barn A. had 
been accustomed to drive a cart through the passage, ordinarily drawn by 
a horse, on one or two occasions drawn by an ox ; the preceding occupier 
had driven hogs down the passage to the slaughterhouse. Held, a verdict 
against A.'s claim will not be disturbed. Ballard v. Dyson, 1 Taunt. 279 
(1808). 

For over 20 years A., and his friends visiting him, had used a path over 
B.'s yard to the back door of A.'s house. A. then opened a shop in the 
front of his house, and some few customers came by tho, path at the rear. 
Held, this is not a misuse of the easement. Sloan v. Holliday, 30 L. T. N. 
S. 757 (1874). See, also. Cowling v. Higginson, 4 M. & W. 245 (1838) ; Wim- 
bledon Conservators v. Dixon, L. R. 1 Ch. Div. 362 (1875). 

From 1866 to 1878 A. wrongfully discharged through a pipe in B.'s land 
his sink drainage, there being until then no bathroom in A.'s house, in 
1878 A. installed a bathroom, and from then until 1888 discharged both sink 
and water-closet drainage through the pipe. In 1888 B. stopped the pipe. 
Held, A. has a right to discharge sink drainage, but not water-closet drain- 
age. Shaughnessey v. Leary, 162 Mass. 108, 38 N. E. 197 (1894). Compare 
Baxendale v. McMurray, L. R. 2 Ch. App. 790 (1867). 

A. had acquired by prescription a right to maintain an irrigation ditch over 
B.'s land. Held, he cannot substitute an underground pipe of the same ca- 
pacity, even though this would be less of a burden on the servient estate. 
Allen V. San Jose Land & Water Co., 92 Cal. 138, 28 Pac. 215, 15 L. R. A. 
93 (1891). 



2Q6 RIGHTS IN THE LAND OF ANOTHER (Part 2 

adjoining the first mentioned lot on the west, and extending back fifty- 
eight feet from Chesnut street, were also the property of the plaintiff, 
as well as another lot in Third street, running east fifty feet to the 
small piece of ground, which he retained out "of the lot granted by him 
to Conyers, and by Conyers to Bioren. The Chesnut street and Third 
street lots belonging to the plaintiff were contiguous ; the south line 
of the former, constituting part of the north line of the latter. Thus 
the plaintiff had access from all the above mentioned lots to the alley 
in question. It was admitted, that the defendant had disturbed the 
plaintiff in the use of the alley, and had stopped the water course. 

Two questions arose: 1. Whether the plaintiff", notwithstanding he 
had parted with the whole of the lot to which the alley was appurtenant, 
except the small piece of ground above described, retained the privilege 
of the said alley? 2. Whether the plaintiff had a right of way through 
the alley to his other lots ? 

TiivGHMAN, C. J.^* After having stated the different deeds, pro- 
ceeded as follows: The defendant, who is proprietor of the alley, 
contends, that the plaintiff has no rights to the use of it, because he 
has parted with all the lot to which the right of way was appurtenant, 
except the small piece last mentioned. It may be remarked in the out- 
set, that at all events, the plaintiff must recover in this actiqn^j3^^^^ 
the defendant has obstructed the water course, and np argument what- 
ever has been urged to show that the right to the water course is lost, 
by selling part of the lot. As to the right of way, the argument is, that 
the deed should be construed according to the intent of the parties, and 
that it must have been supposed by the grantor, that this small lot con- 
veyed by Gordon to the plaintiff (only ten feet wide) would have been 
always occupied by one person ; therefore the cutting it up into several 
parcels, and giving a right of passage to several persons, will subject 
the grantor, and those claiming under him, to greater inconvenience 
than was contemplated. But we are to judge of the intentions by the 
words of the deed. When land is conveyed with a right to the grantee, 
his heirs, and assigns, to pass over other land, the right is appurtenant 
to all and every part of the land so conveyed, and consequently every 
person to whom any part is conveyed," is to enjoy the right of passage. 
It must not be supposed, that either party was ignorant, that the gran- 
tee had a right to alien a part, nor that it was the intention (unless 
clearly expressed) that by such alienation, the right of way should be 
extinguished. Now, if the defendant's argument is just, the right of 
way is totally extinguished, by an alienation of part of the premises, 
because it cannot be said that the owner of one part has better right 
than the owner of the other, consequently as both cannot have the right, 
the whole is gone. We must decide this case on general principles ; 
the same law that is applied to a lot of ten feet wide must be applied 

-•s Part of the opiuiou of Tilgbraan, C. J., and tbe opinion of Teates, J., 
are omitted. 



Ch. 2) EASEMENTS 207 

to one of the width of an hundred feet. And it is obvious, that such a 
principle cannot prevail in a city without intolerable grievance, be- 
cause it would force every person who has a right of way to preserve 
his property entire, in order to preserve his passage. Generally speak- 
ing, covenants that run with the land extend to assignees of every part 
of the land. This is the case with covenants to warrants, &c., although 
by multiplying the assignees, the actions against the covenantor may 
be multiplied. The defendant has produced no authorities distinguish- 
ing this case from the general principle. I am, therefore of opinion, 
that the plaintiff was entitled to the use of the alley in question, as 
appurtenant to the ground retained by him. But the plaintiff has an- 
other claim. * * * I do not think that the facts stated in the rec- 
ord make it proper to decide that point at present. * * * On the 
whole I am of opinion, that judgment should be entered for the plain- 
tiff. 

Judgment for plaintiff.^* 



WHITE V. GRAND HOTEL, EASTBOURNE, Limited. 
(Chancery Division, 1912. [1913] L. R. 1 Ch. 113.) 

Appeal from a decision of Joyce, J. 

This was an action by the owner in fee simple and his tenant of 
stables and mews and a private road leading from the mews to a pub- 
lic road called Silverdale Road at Eastbourne, against the owners of 
adjoining property, for an injunction to restrain them from using the 
private road as a carriageway for the passage of motor cars or other 
vehicles, and for an order that the defendants should rebuild part of 
a wall which had been pulled down. 

The defendants' premises formerly consisted of a private dwelling- 
house and garden known as St. Vincent Lodge. The only passage to 
the plaintiffs', mews was by a lane, running into Silverdale Road. In 
1883 the predecessors in title of the plaintiffs and defendants (Mr. 
Peerless and Mr. Ford) entered into an arrangement whereby the lane 
was to be enlarged and Mr. Ford, the owner of St. Vincent Lodge, 
was to have a right of way over it and through a gateway nine feet in 
width into his premises, thus obtaining a means of access to Silver- 
dale Road. There was no documentary evidence of this agreement, and 
the question whether there was any express restriction or limitation 
upon the right of way was in dispute. The defendants had recently ac- 
quired St. Vincent Lodge and made use of it in connection with the 
business of their hotel; a covered yard between the stable and the 
house being used as a garage for motor cars belonging to visitors stay- 

i» Yeates and Bradcenridge, J.T., concurred. Ace: Newcomen v. Coul- 
son, L. R. 5- Ch. Div. 133 (1877) ; Underwood v. Carney, 1 Cush. (Mass.) 2S5 
(1848) ; Lansiu? v. Wiswall, 5 Denio (N. Y.) 213 (1S4S) ; see Dawson v. St. 
Paul Fire & Marine Ins. Co., 15 Minn. 136 (Gil. 102), 2 Am. Rep. 109 (1870). 



208' RIGHTS IN THE LAND OF ANOTHER (Part 2 

ing at the hotel, and the drivers being lodged in St. Vincent Lodge it- 
self. These drivers were in the habit of using the right of way, and 
the defendants altered the gateway to facilitate their passage. The 
plaintiffs brought this action ; a good deal of evidence was adduced and 
several questions argued, but the only point which calls for a report is 
the first question, namely, whether the use of the right of way must 
be restricted so as no longer to enure for the benefit of the owners of 
St. Vincent Lodge and its stables unless the same continued to be used 
and occupied precisely as they were in 1883, when the agreement' was 
made, that is to say, as a private dwelling house. On this point Joyce 
J. said "a great many authorities were cited before me, not all quite 
consistent, but the result of the argument is that in my opinion the au- 
thorities cited at pages 90 and 91 of Theobald's Law of Land do sup- 
port the proposition there stated, namely: 'Where there is an express 
grant of a right of way to a particular place to the unrestricted use of 
which the grantee of the right of way is entitled, the grant is not to 
be restricted to access to the land for the purposes for which access 
would be required at the time of the grant.' Then all the cases are 
there cited, and in my opinion that statement is correct and I think 
the law is so settled * in other words I hold that the defendants had an 
unrestricted right of way to or from the gateway nine feet wide in the 
new wall as erected by Ford and that nothing has happened to deter- 
mine such right of way." His Lordship accordingly dismissed the ac- 
tion. 

The plaintiffs appealed. 

CozEns-Hardy, M. R."" This is an action in which the plaintiffs- 
claim an injunction to restrain the defendants from using and enjoying 
a right of way, which I shall have more particularly to deal with. The 
plaintiffs' main point was this : They said that the right of way, which 
was granted under circumstances which I shall state hereafter, was lim- 
ited in its nature ; that it was only a right of way for what I may call 
domestic purposes as distinct from trade purposes; and that it was 
only for such use as could reasonably be expected to be in tlie contem- 
plation of the parties at the time when the defendants' house, St. Vin- 
cent Lodge, was a private residence, and ought not to be altered now 
that St. Vincent Lodge is turned into a garage. We heard that point 
fully argued by counsel for the appellants and we have come to the 
conclusion that there is no ground for limiting the right of way in the 
manner suggested. It is not a right of way claimed by prescription. 
It is a right of way claimed under a grant, and, that being so, the only 
thing that the Court has to do is to construe the grant; and unless 
there is some limitation to be found in the grant, in the nature of the 
width of the road or something of that kind, full effect must be given 
to the grant, and we cannot consider the subsequent user as in any way 
sufficient to cut down the generality of the grant. 

2 The opinions of Farwell and Hamilton, Lords Justices, are omitted. 



Ch. 2) EASEMENTS 209 

I do not propose to go into the authorities, many of which were cited 
to us. I think that the law is spttled clearly and conclusively by the 
decision of the Court of Appeal in United Land Co. v. Great Eastern 
Ry. Co., L. R. 10 Ch. 586. I, therefore, do not differ in any way from 
the view taken by Joyce, J., that the right of way is not to be restricted 
to access to the land merely for such uses as were reasonably re- 
qtu'red at the date of the grant. So far this attion, I think, fails.-^ 

[His Lordship then considered the facts of the case and held that the 
defendants had no right to any access except through a gate in the posi- 
tion of the nine-foot gate which formerly stood there, and that the 
plaintiffs were entitled to an injunction to restrain them from exer- 
cising a right of way through a new and wider gate recently erected.] 



WOOD V. SAUNDERS. 
(Court of Chancery, 1875. 23 Weekly Rep. 514.) m 

[One L. B. Knight-Bruce, owner in fee of a large tract of land, made 
an agreement in writing with defendant whereby the latter was to erect 
various mansion houses upon the said land, and leases of the said 
houses were to be granted to the defendant. Later, by an indenture 
of lease dated June 9, 1870, L. B. Knight-Bruce and the defendant leas- 
ed to the plaintiff one of the mansion houses, known as the Priory, and 
two acres of land, for a term of two years from December 25, 1869. J 

The description of the parcels was followed by these words : "To- 
gether with the free passage and running of water and soil in and to 
the existing cesspool, and in and through all the drains, sewers, and 
water courses now constructed, or hereafter to be constructed, through 
the adjoining property of the said L. B. Knight Bruce, his heirs or as- 
signs." The lease contained a covenant by the plaintiff not to use the 
premises for any trade or business, or for any purpose or in any way 
which might be, or grow to be, a nuisance to the said L. B. Knight 
Bruce or his tenants, and not without the consent of the said L. B. 
Knight Bruce to erect any walls, building, or erection whatever, upon 
the demised premises, or alter the elevation thereof ; also a proviso 
that the plaintiff should have an option of purchasing the fee simple of 

21 Ace: Parson v. New York, N. H. & H. R Co., 216 Mass. 269, 103 N. 
E. 693 (1913) ; Kretz v. Fireproof Storage Co., 127 Minn. 304, 149 N. W. 648, 
955 (1914) ; Arnold v. Fee, 148 N. Y. 214, 42 N. E. 588 (1896). 

See United Land Company v. Great Eastern Ry. Co., L. R. 10 Cti. App. 
586 (1875). 

A way of necessity is only for the purpose of the dominant piece in the 
condition in which it was at the time of the creation of the easement. Lon- 
don V. Riggs, L. R. 13 Ch. Div. 798 (1880), implied reservation; compare 
Serff V. Acton, L. R. 31 Ch. Div. 679 (1886). Contra: Myers v. Dunn, 49 
Conn. 71 (1881), implied grant; Whittier v. Winkley, 62 N. H. 338 (1882). 

2 2 The case is also reported in L. R. 10 Ch. 582. 

BiG.RlGHTS — 14 



210 RIGHTS IN THE LAND OF ANOTHER (Part 2 

the demised premises for i 10,000, on giving three calendar months' no- 
tice in writing of his desire to do so. 

The plaintiff gave due notice of his desire to purchase, and by an 
indenture dated the 21st day of May, 1872, h. B. Knight Bruce con- 
veyed the fee simple to him accordingly in consideration of £10,000. 

The conveyance granted a right of drainage in precisely the same 
words as were used in the lease, and contained the usual general words, 
"together with all buildings, yards, gardens, trees, fences, hedges, ditch- 
es, ways, sewers, drains, water courses, liberties, privileges, easements, 
and appurtenances whatsoever to the said messuage and premises be- 
longing, or in any wise appertaining, or then or usually occupied or en- 
joyed therewith, or reputed as appurtenant thereto." 

It appeared that the object of the plaintiff (who was a physician) in 
acquiring the property was to use it as a private lunatic asylum. After 
the plaintiff had declared his option to purchase, but before the prop- 
erty was conveyed to him, he stated his desire to make additions to the 
house, and requested a license from the lessor, L. B. Knight Bruce, in 
order to enable him to proceed to build immediately ; and although no 
license was given the alterations and additions were partially completed 
before the date of the conveyance. The premises, as altered, afforded 
accommodation for a large number of patients, and it was admitted 
by the plaintiff that from ninety to a hundred persons were usually 
resident therein. In consequence of this fact there was a greatly aug- 
mented user of the right of drainage conferred by the lease and the 
conveyance. 

[The defendant threatened to cut the drain, and the plaintiff, brought 
this bill for an injunction.] 

Hall, V. C.^^ The important question for me to determine in this 
ca?e is the construction of the grant which is contained in the lease ; 
for it has been admitted by the plaintiff at the bar that the conveyance 
is to be construed as conveying exactly what was given by the lease 
and nothing more ; and I think that it was a very fair, and reasonable, 
as well as a sound way of putting the case, to admit that the plaintiff's 
right as grantee under the conveyance could not be carried farther than 
his right as it existed as lessee. * * * 

That being so, the next question is. What is the extent of the ease- 
ment vrhich is granted ? and for the purpose of determining that, I do 
not think it is proper to stop at the point in the deed where I have 
already read to ; but I think tliat you must go through the deed and 
examine its further provisions, so as to ascertain, by a perusal and con- 
sideration of the whole of the instrument, the way in which the par- 
ties contemplq,ted that the property in question would be used and en- 
joyed. It is not necessary for me to state the different provisions in 
detail, but suffice it to say that it is clearly stipulated that the property 
shall remain in the same state and condition as it was at the time when 

23 The statement of facts is abridged and part of the opinion is omitted. 



Ch. 2) EASEMENTS 211 

the lease was made. No building was to be erected upon the property, 
and the elevation of the mansion house was not to be altered without 
license from the lessor. Therefore, the substantial thing was the pres- 
ervation of the property in its then existing state, subject to any altera- 
tions being made in it with the consent of tlie lessor. The lessor's con- 
sent was never given to any alteration whatever. If it had been given, 
it might have been qualified with reference to its effect on the right of 
passage of water. It might or it might not; but no license was ever^ 
given, and therefore I must take it that when this property was con- 
veyed and taken under the option matters stood exactly as they were, 
and tliat there was no existing right of user of the easement of free 
passage of soil and water other than that which existed immediately 
after the lease itself was made, whatever that may be. Now the right 
which existed at the time of the lease being made was not an unre- 
stricted general right in respect of this house and nine acres of land. 
It was a right attaching to this house and land subject to this, that 
they could only be enjoyed in a limited and special and peculiar man- 
ner. Therefore, there was no grant of right of passage of water and 
soil in respect of any buildings which might thereafter be erected, but 
only a right in respect to the actual building as it stood and existed at 
the time the lease was made, and from what I have already said it was 
consequently that right only which passed by the conveyance. 

It was said, however, that consistently with the authority, the grant 
ought to be measured with reference to the size of pipes, and not with 
reference to the size of the building. I do not know of any authority 
for any such proposition. I am not aware that in construing a grant of 
a right of way or road (which I do not know how you can, for this pur- 
pose, distinguish from a grant of a right of water course), and in as- 
certaining the extent of the right to a user of that road when there 
has been an alteration in the property in respect of which it was grant- 
ed, you are to consider that the grant extends to the altered state of 
circumstances, simply because there is plenty of room to allow per- 
sons to go along the road. 

As I understand it, you must measure the right by the existence of 
the thing which is to have the use of the right, and I adopt for that pur- 
pose what is stated by Mr. Justice Willes in the case of WilHams v. 
James, 15 W. R. 928, L. R. 2 C. P. 577, which has been referred to. 
Mr. Justice Willes there says, "The use must be the reasonable use 
for the purpose of the land in the condition in which it was while the 
user took place." I consider, therefore, that the user here must be a 
user consistent with the use of the mansion as a mansion in the state 
and condition in which it was at the time the grant was made. I do 
not mean to say that any small alterations which might be made in the 
buildings, such as the addition of a single water-closet, or anything else 
in the nature of a small adglition to the house — even were it the building 
of another room — would effect the right. You must look at it in a rea- 
sonable point of view; you must not, as Mr. Justice Willes says, be 



212 RIGHTS IN THE LAND OF ANOTHER (Part 2 

splitting straws upon these questions, but you must take it in a rea- 
sonable point of view ; and taking it in a reasonable point of view, you 
have here a case where there has been accommodation added to this 
house so as to render it capable of being used as a lunatic asylum for 
a hundred or more inmates, instead of as a private dwelling house. 
For this purpose it is just as if it were a user for a manufactory, ex- 
cept that the character of the manufacture might be such as to make 
the quantity of soil and water or other matter much larger than it is 
at present. But upon the evidence here it is clear that there has been 
a very large increase indeed to the quantity of water and soil which 
has been passed through these drains down into the moat or ditch. 

Another suggestion of Mr. Lindley's was that the true measure might 
be taken to be the quantity which the moat or ditch itself would con- 
tain. That view seems to me to be entirely without any authority to 
support it, and might raise very awkward questions indeed as to the 
quantity of water and sewage which the grantor himself was still en- 
titled to put in, and as to how the rights of the parties should be ad-. 
justed in case of a dispute as to the quantity which each was to put in. 
The same question no doubt to a certain extent might arise under the 
view which I take, because even the limited user might be forestalled 
by the grantor sending in such a quantity from his own premises as 
not to leave sufficient space for what might come from the grantee's 
premises. But an unlimited right, or some greater right than a right 
limited to the mansion, would be much more likely to create difficul- 
ties, and would have been much more likely to have been made the sub- 
ject of special provision, if there had been any intention to grant it, 
than a mere limited right of passage of water and soil from a private 
dwelling house, the quantity of which both parties might well conceive 
would be really not of much importance in reference to the use of the 
moat or ditch. Therefore, I consider that that argument is not ten- 
able. * * * 

The order made was as follows : "Order that an injunction be award- 
ed to restrain the defendant, his servants and workmen, from cutting 
off or stopping up the drains in the bill mentioned, or in any way pre- 
venting the free passage and running of water and soil in and to the 
existing cesspool in the bill mentioned, such cesspool being in the judg- 
ment of the court the moat or ditch in the bill mentioned, but this or- 
der is only to protect the plaintiff in the reasonable use of such cess- 
pool having regard to the extent to which the same was being used 
prior to the date of the lease." ^* 

24 See Elser v. Village of Gross Point. 223 111. 230, 79 N. E. 27, 114 Am. 
St Rep. 326 (1906). 



Ch. 2) EASEMENTS 213 



GRAY et al. v. CITY OF CAMBRIDGE. 

(Supreme Judicial Court of Massachusetts, 1905. 189 Mass. 405, 76 N. K. 
195, 2 L. R. A. [N. S.] 976.) 

[This is a bill in equity by the executor of Edward W. Hooper to 
enjoin the defendant from causing- or allowing water to run thru cer- 
tain pipes laid in Hooper's land under a grant from one Stearns, Hoop- 
er's predecessor in title. 

In 1865 Stearns, the then owner of the land in question, granted in 
fee to the defendant "the right to enter upon a strip of land fifteen feet 
wide, situate in said Cambridge, and lying between Reservoir Street 
and the land of Josiah Coolidge for the purpose of laying one or more 
water pipes for conveying water from Fresh Pond to the, city reser- 
voirs on said street and of examining, repairing, and relaying the same 
whenever necessary." The plan at that, time was to pump the water 
from Fresh Pond thru pipes laid in the strip in question to the city res- 
ervoirs mentioned and thence to distribute it by gravity to various 
parts of the city. In pursuance of this plan, a twelve inch pipe was 
first laid in the strip from the pond to the reservoir; later this was 
taken up, and a twenty-four inch pipe was substituted. Several years 
later a second, a thirty inch supply pipe, was laid, and still later a third 
twelve inch pipe. Contemporaneously with the laying of the thirty 
inch pipe and the twelve inch pipe, the city altered~ its plans and in the 
next ten years gradually changed the use of the pipes in the strip in 
question so that instead of pumping the water to the reservoir, the city 
pumped the water thru these pipes under greater pressure into other 
pipes connecting with them in the vicinity of the reservoir and so di- 
rectly to the consumers. In 1896 a new reservoir was built on a dif- 
ferent site, the old reservoir razed and the land whereon it stood sold. 
The pipes in question were thereafter used solely as distributing mains 
in connection with the new reservoir system.] 

LoRiNG, J.^^ We are of opinion, first, that the master's construc- 
tion of the Stearns grant in the main is correct ; and, second, that pipes 
laid under this grant can be used as supply pipes only and cannot be 
used as distribution pipes. What are the terms of the grant? They 
are (1) "to enter upon a strip of land fifteen feet wide," which strip 
of land is (2) "situated in said Cambridge, and lying between Reser- 
voir street and land of Josiah Coolidge," (3) "for the purpose of lay- 
ing one or more pipes," which pipes are to be used (4) "for conveying 
water from Fresh Pond to the city reservoirs on said street [Reser- 
voir street]," and (5) "of examining, repairing, and relaying the same 
whenever necessary." The question comes down to this : For what 
purpose were the words inserted "for conveying water from Fresh 
Pond to the city reservoirs on said street?" and what effect is to bs 
given to them? They were not inserted to describe the termini of thf> 

2 5 The statement of facts rewritten and part of the opinion is omitted. 



214 RIGHTS IN THE LAND OF ANOTHER (Part 2 

15-foot Strip. That was fully stated elsewhere. There is the previous 
description of the 15-foot strip as "lying between Reservoir street and 
land of Josiah Coolidge," and the subsequent delineation of it in the 
plan referred to in the deed. Moreover, as a description of the ter- 
minus ad quern it is inaccurate, M'r. Stearns' ownership extended only 
to Reservoir street. It did not extend across the street to the reser- 
voir. 

In the second place, these words were not inserted to state the use 
to be made of the 15-foot strip. That is stated by the words immedi- 
ately preceding the clause in question, to wit, "for the purpose of lay- 
ing one or more water pipes" in it, the 15-foot strip. We see no es- 
cape from the conclusion that these words were inserted as a descrip- 
tion of the use to be made of the pipes to be laid in the strip. That 
use is "for conveying water from Fresh Pond to the city reservoirs 
on said street" ; that is to say, these pipes are not for general use in the 
water system of the city, but for the narrower use of conveying water 
from the supply to the reservoir, which is the initial point of distri- 
bution. Pipes which are to convey water from, the source of supply on 
a low level to a reser\'oir on a higher level, which reservoir includes a 
standpipe to enable the water to reach houses higher than the level of 
the reservoir, for convenience may be termed, as they have been term- 
ed in this opinion, supply pipes. Those which take the water from the 
reservoir, including the standpipe as part of the reservoir, are or may 
be termed distributing pipes. The limitation "for conveying water 
from Fresh Pond to the city reservoirs" is, in effect, a provision that 
the "water pipes" to be laid in the 15-foot strip are to be used as supply 
pipes, thereby excluding their being used as distributing pipes as they 
are now exclusively used. 

The defendant city in effect claims that, in spite of the words "for 
conveying water from Fresh Pond to the city reservoirs on said street," 
it can use these pipes for any purpose in the water system of the city, 
that the reservoir was a mere resting place for the water on its way 
from the supply to the consumer, and the pipes can be used to convey 
water to the consumer. So far as we can see, no eft'ect is given to 
those words if that construction is adopted ; and, unless we can read 
the words "for the purpose of conveying water from Fresh Pond to the 
city reservoirs" on Reservoir street to mean or to include "for the 
purpose of conveying water from the city reservoirs, wherever situat- 
ed, to the consumers," the use now made is not covered by the grant. 
In our opinion the words cannot be so read. The explanation of the 
whole matter seems to be found in a suggestion of the plaintiffs' coun- 
sel that ordinarily distribution mains are laid in public streets and in 
public streets only. The unexpected, however, turns out to be the 
event in the case at bar, and it has become convenient now for the city 
to utilize these supply pipes as a link in the distribution system starting 
from the new reservoir. This remote contingency did not occur to the 
city when it made its bargain with Mr. Stearns in 1866, and by the 



Ch. 2) BASEMENTS 215 

terms of what was then agreed upon as the trade struck between them 
such a use was not included. * * * 

Finally, the defendant argues that, if the grantor had intended that 
the easement should cease in case the city ceased to use the reservoir, 
it should have said so. But in that event the easement did not cease 
unless it was made appurtenant to the land on which the reservoir was 
built, upon which we do not find it necessary to express an opinion. 
The easement continues in legal contemplation, to wit, the easement to 
maintain pipes in the 15-foot strip for the purpose of conveying water 
from Fresh Pond, to the reservoir. So long as the defendant has no 
reservoir, nothing can be done under the easement, but the easement 
continues. The city may hereafter erect a new reservoir on the same 
site. Whether the city can continue the pipes after razing the reser-. 
voir to the ground under this continuing easement is another mat- 
ter. * * * 

There must be a decree for the plaintiffs on terms to be settled by a 
single justice. The interests of the public are concerned in the peremp- 
tory shutting off of the water asked for by the plaintiffs. Subject to 
such modification as may be called for by those public interests, the 
plaintiffs are entitled to a decree, with costs in accordance with the 
prayer of their bill. 

So ordered.^^ 



2SA., through whose land ran a creek, granted to B. the right to erect 
and maintain a darn and ditch in A 's land and draw water thence to B.'s 
land for the purpose of irrigating B.'s meadow. B. built the dam and ditch, 
but used the water for the purpose of watering his stock as well as irrigat- 
ing. He kept this up for over twenty years. Held, he has, as against A.'s 
successor in title, the right to use the water for both purposes. Wheatley 
V. Chrisman, 24 Pa. 298, 64 Am. Dec. 657 (1855). 

See Colchester v. Roterts, 4 M. & W. 769 (1839); Northam v. Hurley, 1 E. 
& B. 665 (185.3) ; Rolens v. City of Hutchinson, 83 Kan. 618, 112 Pac. 129 
(1910); Cheney r. Pease, 99 Slass. 448 (1868). 

On the 25th day of June, ISll, one Peter Townsend and wife, in considei-a- 
tion of the sum of five dollars, to them in haiMl paid, conveyed to one Heury 
McFarlan ''all the right or privilege of using or drawing off the water from 
a certain pond called 'Mt. Bashan Pond,' situate in the town of Monroe, in 
the county of Orange, near a gristmill and nail manufactory of the said 
Henry McFarlan and others, called the 'Monroe Works,' for the purpose of 
carrying on the said works, in such quantity as v.ould be sufficient for carry- 
ing on and working the furnace, situate between said nail manufactory and 
the said pond, called 'Southfield Furnace,' occupied and owned by the said 
Peter Townsend and others, and for which purpose said water is now used, 
and no further or greater quantity: Provided, always, that the right so 
as aforesaid granted to the said Henry McFarlan, his heirs and assigns, of 
drawing off said water as aforesaid, shall cease at all times whenever said 
furnace, called the 'Southfield Furnace,' is in blast or making iron." The 
plaintiff had succeeded to the right of McFarlan, and the defendant to the 
right of Townsend. The nail factory was destroyed by tire in the vicinity 
of oO years ago, and had never been rebuilt; the gristmill was converted into 
a basket factory, which afterwards gave place to a shoddy mill, and then 
to a manufactory of wooden articles, which business was still conducted 
therein. Held, the plaintiff is entitled to continue to use the amount of 
water specitied in the deed of 1811. Hall v. Sterling Iron & Rv. Co., 14S N. 
Y. 432, 42 N. E. 1056 (ISDGj. Ace. : Suttrel's Case, 4 Co. S6a (1601) ; Garland 



216 RIGHTS IN THE LAND OF ANOTHER (Part 2 

EDGETT V. DOUGLASS. 

(Supreme Court of Pennsylvania, 1891. 144 Pa. 95, 22 Atl. 868.) 

On June 14, 1889, A. J. Edgett filed a bill in equity against C. L. 
Douglass, charging in substance (1) that the defendant, without any au- 
thority, had entered upon a tract of seven acres owned by the plaintiff, 
for the purpose of constructing a dam to restrain the flow of Tunung- 
want creek and divert it from its natural course, and threatened to con- 
tinue lo make such entries ; and (2) that the defendant was construc- 
ing a dam below the plaintiff's property in such manner as to overflow, 
not only said seven acres, but also another tract of the plaintiff' con- 
taining thirty acres, to the plaintiff's irreparable damage ; praying that 
the defendant be enjoined from entering on the seven acres for the pur- 
pose of changing or diverting the channels of said creek, and from 
maintaining said dam "other than it now is;" and for general re- 
lief. * * * 

The dam mentioned in the pleadings was built in 1844 by W. R. 
Fisher, and from that time until the purchase by the defendant of the 
gristmill and water rights mentioned below, was maintained substan- 
tially in the same condition as when first erected. From 1844 to 1866 
Fisher owned the dam, and the land on each side thereof. There were 
erected prior to 1866, on land owned by Fisher, a sawmill, situated on 
the west side of the creek, and a gristmill situated on the opposite side. 
Both were supplied with water from said dam. In 1866, Fisher con- 
veyed to Henrietta Peterson a parcel of land upon which the sawmill 
stood, and also the seven acres now owned by the plaintiff, the deed 
containing the following reservation : 

"Reserving, however, to the party of the first part sufficient water to 
run a gristmill on the same milldam, and the right at all times to main- 
tain a dam across the Tunungwant creek where the dam now is, and 
the right to flow the land hereby conveyed so far as may be necessary 
for the use of the water, privilege." * * * 

The plaintiff's title to the seven acres was derived, through inter- 
mediate conveyances, from Henrietta Peterson. The defendant owned 
at the time of the hearing the Fisher gristmill, and had succeeded by 
grant to all the rights which Fisher had in the mill property, dam, wa- 

V. Hodsdon, 46 Me. 511 (1859) ; Adams v. Warner, 23 Vt. 395 (1851) ; see Co- 
burn V. Middlesex Co., 142 Mass. 264, 7 N. E. 849 (1886). 

A., being the owner of a tract of riparian land and a water power, grant- 
ed to B. in fee a part of the land with, "the privilege of building a fulling 
mill, together with the privilege of drawing water from Long Pond [the 
source of the power], so much as shall be necessary to carry a well-built 
overshot fulling mill at any time when he, the said B., shall have occasion 
to use his said fulling mill." B. built his fulling mill; it subsequently 
burned, and later an oil mill was erected on the same site by B.'s successor 
in title, who attempted to use the same amount of power for his oil mill. 
Held, he is not entitled to use the water power for the oil mill. Strong v. 
Benedict, 5 Conn. 210 (1824). Acc: Clement v. Gould. 61 Vt. 573, 18 Atl. 
453 (1889). Compare Woodring v. Hollenbach, 202 Pa. 65, 51 Atl. 318 (1902). 



Ch. 2) EASEMENTS 217 

ter privilege and appurtenances, the same having been conveyed to him 
by deed of Fisher and wife, dated July 27, 1886. 

As originally built, the dam in question extended across Tunung- 
want creek. The breal<, which the defendant was claiming the right 
to repair, was up the stream from the dam and about 150 feet above 
it, and with the exception of about three feet, was wholly on the tract 
of seven acres belonging to the plaintiff. It was contended by the de- 
fendant that, soon after the construction of the dam in 1844, a dyke 
extending along the stream from the dam to a point beyond the break, 
was built for the purpose. of restraining the water from flowing over a 
portion of the seven acres and of thus increasing the height of the wa- 
ter in the dam, and it was a break in tliis dyke the defendant was seek- 
ing to repair. * * * 27 

Paxson, C. J. This case involves some questions of fact which 
could have been more appropriately settled at law. Indeed, had this 
point been made below, we would have been inclined to sustain it. But 
where parties submit to the jurisdiction, and take their chances of a 
decree in their favor, the objection here comes with a bad grace, and 
will not, as a general rule, avail, unless the want of jurisdiction is so 
plain that we would feel justified in dismissing the bill of our motion. 
Aside from this, in the view we take of the case, the disputed facts are 
not of special importance, as it turns in a great measure upon the prop- 
er construction of the reservation in the deed of October 16, 1866, fron, 
William R. Fisher and wife to Henrietta Peterson. The language of 
said reservation is as follows : "Reserving to the party of the first part 
sufficient water to run a gristmill on the same milldam, and the right 
at all times to maintain a dam across the Tunungwant creek where the 
dam now is, and the right to flow the land hereby conveyed so far as 
may be necessary for the use of the water privilege." 

We think the master and the court below took a narrow view of this 
reservation. Their construction of it was, in the language of the for- 
mer, "simply to give him [Fisher] the right to flow this land and to 
maintain a dam across the Tunungwant creek where the same now is. 
He reserved no right to enter upon his grantee's land for any purpose, 
,although this land was the subject-matter of the trade." The master's 
view, as we understand it, was that the right to maintain the dam con- 
sisted solely in the right to keep up the breastwork across the creek, 
and to overflow the seven acres ; but he has failed to enlighten us how 
the dam is to be maintained if the bank by the side of the creek is 
washed away, so as to allow the water to escape. In such case, repair- 
ing the bank which crosses the creek would be of no avail. 

In this case there was a break in the side of the dam, and admit- 
tedly on the plaintiff's land. This break could only be repaired by go- 
ing upon the land of the latter, and it was in doing this that the al- 
leged trespasses occurred. It is to be observed that the reservation is 

27 The statement of facts is abridged. 



218 RIGHTS IN THE LAND OF ANOTHER (Part 2 

"to maintain a dam across the Tunungwant creek where the dam now 
is" ; that is to say, the right was reserved to maintain the dam in its 
length and breadth as it existed at the time of tlie reservation. This 
inchided all the banks by which the water was confined. The right to 
maintain the dam means the right to keep up the banks, and, if they 
are washed away, to repair them. The right to repair necessarily in- 
volved the right to go upon the land for that purpose, and must have 
been so understood by the parties to the reservation at the time it was 
made. Were it otherwise, the reservation would have been wortjiless, 
and we are not to presume that the parties intended a vain thing. We 
are of opinion that the defendant has the right to go upon the plain- 
tiff's land for the purpose of making any repairs to the bank necessary 
to maintain his dam. 

The decree is reversed, and the bill dismissed, at the costs of the ap- 
pellee.^* 



DUDGEON v. BRONSON et al. 

(Supreme Court of Indiana, 1902. 159 Ind. 562, 64 N. E. 910, 65 N. E. 752, 

95 Am. St. Rep. 315.) 

DowLiNG, C. J. Mary C. Bronson, the plaintiff below, with whom 
was joined her husband, sued the appellant for a way of necessity over 
lands owned by him. The court overruled a demurrer to the amended 
complaint. A special finding of facts was made, and conclusions of 
law were stated thereon. The appellant excepted to each conclusion. 
Motions for a new trial and for a venire de novo were also made and 
overruled. These decisions of the court are assigned for error. 

The complaint shows that in 1875 one Stone owned two tracts of 
land in Allen county, one of which contained 160 acres, and the other 
40 acres. Stone sold the larger tract in 1875 to one Benninghoff, and 
in the same year conveyed the smaller to the appellee Mary C. Bronson. 
The 160-acre tract bordered upon a highway, but the 40-acre tract had 
no outlet. The appellant is a remote grantee of Benninghoff. The suc- 
cessive owners of the larger tract have recognized the right of the ap- 
pellee to a w^ay over the same to the public highway, and such way is 
in use by the appellee, but, on account of the character of the location 
of the said way, which is low and wet for a large part of the year, and 

2 8 See Vermilva v. Chicas^o, M. & St. P. Ey. Co., 66 Iowa, 606, 24 N. W. 
234, 55 Am. Rep". 279 (1885) ; Prescott v. White, 21 Pick. (Mass.) 341, 32 Am. 
Dec. 266 (1838); Wliito v. Eagle & Pheuix Hotel Co., 68 N. H. 38, 34 Atl. 
672 (1894) ; Central Christian Church v. Lennon, 59 Wash. 425, 109 Pae. 
1027 (1910). Compare Thompson v. Uglow, 4 Or. 309 (1873). 

A. had an easement in fee over B.'s land for water pipes. B. started to 
build a house on his land in such a way that the repairing of the pipes, if 
necessary, would be much more diflicult and expensive. Held, A. may en- 
join B. from so building. Goodhart v. Ilyett. L. R. 25 Ch. D. 182 (1883). 

As to the liability of the dominant to the servient owner for damage 
caused bv the non-negligent exercise of the easement, see Jones v. Pritchard, 
flQOSl 1 CU. 630. 



Ch. 2) EASEMENTS 219 

the nature of the soil, which is soft, the appellee cannot pass over the 
said way without inconvenience and difficulty. In its present condition, 
the said way is useless to the appellee for ingress and egress to and 
from her land, and an additional strip 4 feet in width, running the whole 
length of said way, is required to render said way passable and useful. 
The appellant refused to let the appellee use such additional strip, and 
has forbidden her to enter upon the same. The relief prayed for is 
that the width of the way be fixed at 20 feet. 

The case stated in the complaint is one in which the appellee was 
originally entitled to a way of necessity. Stone owned both the outer 
and larger tract bordering on the highway, and the inner and smaller 
one, which had no outlet. If the smaller tract was first sold, the right 
of access to the highway over the lands of the grantor was appurtenant 
to the grant. If the larger was first sold, then a way of necessity was 
impliedly reserved by tlie grantor for the benefit of the 40-acre tract. 
But it appears from the complaint that, after the conveyance of the 
two tracts by Stone, a way 16 feet in width was granted to and accept- 
ed and used by the appellee, and that she still continues to use it. She 
does not allege that she has no outlet from her land to the public high- 
way, btrt says that the way (which we must presume was agreed upon 
between the appellee and the appellant, or his grantors) has become wet 
and inconvenient, and therefore useless. Having accepted a way of a 
certain width, and over a particular part of the lands owned by tlje 
party holding the servient estate, the appellee has no right to change 
it, but must be confined to the way thus selected. The grounds of the 
complaint are mere matters of inconvenience. That the way once se- 
lected and agreed upon is too steep or too narrow or too wet does not 
entitle the appellee to dem^and a new way, or to increase tlie width or 
change the direction of the old one. 

The right of way from necessity over the land of another is always 
of strict necessity, and nothing short of this will create the right. It 
is said in Ritchey v. Welsh, 149 Ind. 214, 221, 48 N. E. 1031, 1033, 40 
L. R. A. 105, that : "When the way is once selected, it cannot be chang- 
ed by either party without the consent of the other. Nichols v. Luce, 
24 Pick. [Mass.] 102, 35 Am. Dec, 302; Holmes v. Seely, 19 Wend. 
[N. Y.] 507, 510; Morris v. Edgington, 3 Taunt. 24; Godd. Easem. 
(Bennett's Ed.) 351." See, also, Washb. Real Prop. (4th Ed.) 306; 
Washb. Easem. 163-168. "The grantee is bound to keep the way in 
repair,"'' and is not permitted to go extra viam, as a traveler upon a 
public highway is allowed to do, when the way is impassable, except, 
it seems, when the private way is temporarily or accidentally obstruct- 

2 9 "By common law, he who has the use of a thing ought to repair it," 
Mansfield, C. J., in Tavlor v. Whitehead, 2 Doug. 745 (17S1). Ace.: Dana 
V. Smith, 114 Me. 262, 95 Atl. 1034 (1915). 

A. leased a house to B., together witli the use of a piimp on other land 
belonging to A. A. allowed the pump to get out of repair. Held, B. has no 
cause of action against A. Pomfret v. Ricroft, 1 Saund. 321 (lt>t)9). 



220 RIGHTS IN THE LAND OF ANOTHER (Part 2 

ed." Holmes v. Seely, supra. "Where the right to an easement is 
granted without giving definite location and description to it, the exer- 
cise of the easement in a particular course or manner, with the consent 
of both parties, renders it fixed and certain, and the dominant owner 
has no right afterwards to make changes affecting its location, extent, 
or character." 10 Am. & Eng. Enc. Law (2d Ed.) 430, and cases cited 
in note 3. 

The situation of the appellee is the same as if her deed from the own- 
er of the servient tract had expressly granted and described a way, 16 
feet wide, from her 40-acre lot over the 160-acre tract to the highway, 
along the route followed by the way she now owns. In that case she 
certainly could not have compelled the appellant to give her a new way, 
or to increase the width of the old one. As it appears from the com- 
plaint that the appellee can get to her property from the highway over 
a way already belonging to her, and as that way must have been select- 
ed or agreed upon by her, no ground is shown for her claim to an ad- 
ditional strip as a way of necessity. The demurrer to the complaint 
should have been sustained. The other errors assigned need not be 
considered. 

For the error of the court in overruling the demurrer to the com- 
plaint, the judgment is reversed, with directions to sustain the demur- 
rer, and for further proceedings in accordance with this opinion.^" 

3 Ace: OaliTi R. & L. Co. v. Armstrong, 18 Haw. 258 (1907); Jennison 
V. Walker, 11 Graj' (Mass.) 423 (1S60) ; Outhank v. Lake Shore & M. S. K. 
Co.. 71 N. Y. 194, 27 Am. Rep. 35 (1877). 

A. granted the city of V. a right of way over A.'s land "for any water 
pipes or mains which may be laid by the said city of Vallejo * * * and 
the right to maintain such water pipes and mains * * • and also the 
use of so much land as is necessary in the laying down and maintaining of 
said water pipes." V. laid down a 10-inch pipe. Twelve years later it 
sought to lay a second and 14-inch pipe within 3 feet of the first pipe. Held, 
it cannot do so. Winslow v. City of Vallejo, 148 Cal. 723, 84 Pac. 191, 5 U 
R. A. (N. S.) 851, 113 Am. St. Rep. 349, 7 Ann. Cas. 851 (1906). Contra: 
Standard Oil Co. v. Buchi, 72 N. J. Eq. 492, 66 Atl. 427 (1907), ante, p. 190. 
Compare Sked v. Pennington Spring Water Co., 72 N. J. Eq. 599, 65 Atl. 7i:; 
(1907); Moorhead v. Snyder, 31 Pa. 514 (1858). 

"It is settled law that where an unlocated right of way is granted or re- 
served, the owner of the servient estate may in the first instance designate 
a reasonable way, and if he fails to do so, the owner of the dominant es- 
tate may designate it. Jones on Easements, § 337; Kripp v. Curtis, 71 Cal. 
62, 65, 11 Pac. 879 (1886) ; Blum v. Weston, 102 Cal. 362, 369, 36 Pac. 778. 41 
Am. St. Rep. ISS (1894). Findings sufficiently sustained by evidence estab- 
lish that there was no such failure in this case as to entitle plaintiff to 
make the selection. But had she been so entitled, she would still have been 
required to select a route that was reasonable as to both parties, in view of 
all the circumstances, one 'that will not unreasonably interfere with the 
grantor in the enjoyment of his estate.' Jones on Easements, § 337. , The 
trial court was warranted in concluding that the route selected by plaintiff 
was unreasonable, in view of all the circumstances. The case before us is 
simply one where the parties have been unable to agree upon a reasonable 
route in which event the location may be determined in equity. Jones on 
Easements, § 354 ; Gardner v. Webster, 64 N. H. 520, 522, 15 Atl.' 144 (1888)." 
Angellotti. J., in Ballard v. Titus, 157 Cal. 683, 110 Pac. 122 (1910). See 
Moore v. White, 159. Mich. 460, 124 N. W. 62, 134 Am, St. Rep. 735 (1909). 



Ch. 2) EASEMENTS 221 

DURFEE V. GARVEY. 

(Supreme Court of California, 1889. 78 Cal. 546, 21 Pac. 302.) 

[The plaintiff claimed the right to drain his land by means of a 
ditch running through the defendant's land.] 

Belcher, C. C.^^ * * * Prior to 1882, a part of defendant's 
land was cultivated, but in that year he ceased to cultivate it, and has 
since used it only for pasturing stock. He has kept on it horses, mules, 
and cattle, and these animals, by feeding along the ditch, and frequent- 
ly passing over it, have broken in its sides, and have thereby filled it 
up and obstructed the flow of water through it. This obstruction in- 
terfered with the drainage of plaintiff's land, and prevented his culti- 
vating 20 to 25 acres of it on which he could otherwise have raised 
good crops. * * * 

1. The theory of plaintiff, developed at the trial, in reference to his 
first cause of action, was that he had acquired a prescriptive right to 
the use of the ditch leading from his lower line to the arroyo, and that 
defendant had no right to make any use of his land which would cause 
an obstruction of the ditch, and that if he did so he must keep it cleared 
out, or be liable for any damages caused by the obstruction. On the 
other hand, the theory of defendant was that plaintiff- had acquired no 
prescriptive right to the use of the ditch, and that, if he had, defend- 
ant had a right to use his land for any legitimate and ordinary purpose, 
and if, while so using it, the ditch was injured or obstructed the bur- 
den was upon the plaintiff to remove the obstructions and keep it in 
repair. * * * 

The question then presented for decision on this branch of the ca.''e, 
conceding that plaintiff had acquired an irrevocable right to have his 
ditch maintained over defendant's land, is, to what extent does that 
right interfere with and limit defendant's right to use his land ? Must 
defendant, if he would use his land for the pasturage of stock, fence 
in the ditch, or cover it over so that the stock cannot tread down its 
sides? And, if he so uses it, is the burden cast upon him to keep the 
ditch clear and unobstructed, so that water will continuously flow 
through it ? It must be admitted that the use of land for pasturage is 
a common and legitimate use of it, and there is no pretense that de- 
fendant did not exercise ordinary care over his stock. * * * 

Now, if the plaintiff's theor}- be correct, the defendant cannot use 
his land as a pasture, though that may be the best and perhaps only 
profitable use he can make of it, unless he employs men to patrol the 
ditch and keep the cattle away from it, or goes to the expense of fenc- 
ing it in or covering it with bridges. It does not seem to us that the 
plaintiff's easement on the land can impose any such burden as that on 

81 Part of ttie opinion is omitted.' 



222 RIGHTS IN THE LAND OF ANOTHER (Part 2 

the defendant. The general rule is that any man may use his own land 
in his own way, provided he does not use it negligently, so as to in- 
jure his neighbor; and the rule is, also, that, where one man has an 
easement over the land of another, the duty of keeping the easement in 
repair rests upon its owner, and when repairs are necessary he may 
enter on the servient tenement to make them. God. Easem. 285 ; Gale 
& W. Easem. 215; Prescott v. Williams, 5 Mete. (Mass.) 435, 39 Am. 
Dec. 688. It does not appear that plaintiff was ever denied the privilege 
of making any repairs upon his ditch, and it would be going to an ex- 
treme and unwarranted length, as it seems to us, to hold that in a case 
like this defendant is made liable. In our opinion the court erred in 
giving the instruction above quoted for plaintiff and in refusing to give, 
without modification, that asked by defendant. * * * 

Per Curiam. For the reasons given in the foregoing opinion the 
judgment and order are reversed, and the cause remanded for a new 
trial, unless the plaintiff shall, within 30 days after the going down of 
the remittitur, file in the court below a release of $150, and his costs 
in that court, and if he does file such release that the judgment and or- 
der stand affirmed. -^^ 



ATTORNEY GENERAL v. WILLIAMS. 

(Supreme Judicial Court of M.assachusetts, 1885. 140 Mass. 329, 2 N. E. 80, 3 
N. E. 214, 54 Am. Rep. 468.) 

Information in equity, at the relation of the Harbor and Land Com- 
missioners, to restrain the erection of bay windows or projections ex- 
tending into or over a passageway in the rear of the defendant's Jiouse^ 
"*^on the corner of Boylston Street and Exeter Street in Boston. Hear- 
ing before Devens, J., who reserved the case for the consideration of 
the full court. The facts appear in the opinion. 

C. Allen, J.^^ The first question which we have considered is, 
whether an information in the name of the Attorney. General can be 
maintained to enforce the stipulations In respect to the passage- 
way. * * * 

[The Court answered this question in the affirmative.] 

32 Ace: Citv of Bellevue v. Daly, 14 Idaho. 545. 94 Pac. 103G. 15 L. R. A. 
(N. S.) 902, 125 Am. St. Rep. 179. 14 Ann. Cas. 1136 (1908). 

A. had a right of way over B.'s farm to his summer home. He built a 
carriage road at an expense of $700 B. di-ew heavy loads of agricultural 
products over the road from one part of his farm to another and seriously 
damaged the road. Held A. may enjoin B. from so doing. Ilennau v. Roberts, 
119 N. Y. 37, 23 N. E. 442. 7 L. R. A. 220, 16 Am. St. Rep. 800 (1S90). 

See Rockland Water Co. v. Tillson, 75 Me. 170 (18S3) ; Draper v. Varnerin, 
220 Mass. 67. 107 N. E. 3."0 (1914) : Kansas City Southern Ry. Co. v. Sand- 
lin, 173 Mo. App. 384. 15S S. W. 857 (1913); Haley v. Colcord, 59 N. H. 7. 47 
Am. Rep. 176 (1879); Williams v. Safford. 7 Barb. (N. Y.) 309 (1849); Mof- 
fitt V. Lytle, 105 Pa. 173, 30 Atl. 922 (1895). 

38 Part of the opinion is omitted. 



Ch. 2) EASEMENTS 223 

The principal ground of objection to th^ maintenance of the infor- 
mation is, that the defendant has not infringed upon the stipulation 
referred to. Before considering this question in the light of the partic- 
ular stipulation, it may be well to review some of the principal authori- 
ties cited at the argument. The leading case upon this subject is At- 
kins V. Bordman, 2 Mete. 457, Z7 Am. Dec. 100, where it was held 
that the owner of land, over which his grantor had reserved a pas- 
sageway, might, under the peculiar circumstances of that case, lawfully 
cover such passageway with a building, if he left a space so wide, high, 
and light that the way was substantially as convenient as before for 
the purposes for which it was reserved. There, from the language of 
the reservation, construed in the light of the existing facts and cir- 
cumstances, the right reserved was held to be that of ''a._suita.bLe._aryi 
corrvenient_f ootway to and from the grantor's dwelling-house, of suita- 
ble height and dimensions to carry in and out furniture, provisions, and 
necessaries for family use, and to use for that purpose wheelbarrows, 
hand sleds, and such small vehicles as are commonly used for that 
purpose, in passing to and from the street to the dwelling in the rear, 
through a foot passage, in a closely built and thickly settled town." It 
was ajis^ which was individual to the occupant of that house, and not 
for the public. It was limited to certain simple uses, connected with 
getting things into and out of the house. It is obvious that the rights 
of the single person entitled ^under such circumstances to a passage- 
way are not necessarily identical with the rights involved in the pres- 
ent case. * * * 

It is necessary now to look at the terms of the bond in which the 
stipulation relied on in the present case is contained, in order to see 
what it means. In the first place, it is to be borne in mind that the 
place in question is a paj^t of a great scheme of improvement of waste 
land in a city, for streets and dwelling. The description of the land 
carefully defines the width and lines of the passageway : "Running one 
hundred and twelve feet to a passageway sixteen feei wide; thence 
westerly on the line of said passageway ; * * * also all that part 
of said passageway sixteen feet wide that lies southerly of its centre 
line, and between the easterly and westerly lines of said premises ex- 
tended ; reference being had to the plan accompanying the fifth annual 
report of the commissioners on the Back Bay." A reference to the 
plan shows a system of streets, covering an extensive territory, with 
passageways for the accommodation of the houses on two streets, and 
for access to their rear entrances. "Any building erected on the prem- 
ises shall be at least three stories high for the main part thereof, and 
shall not in any event be used for a stable or for any mechanical or 
manufacturing purposes." There were also other provisions showing 
that dwellinghouses of a high class were contemplated. Afterwards 
followed tlie 'particular stipulation relied on, "that a passageway six- 
teen feet wide is to be laid out in the rear of the premises, the same 



224 RIGHTS IN THE LAND OF ANOTHER (Part 2 

to be filled in by the commonwealth, and to be kept open and maintained 
by the abutters in common." 

It was contemplated that buildings might be erected on both sides of 
this passageway. Each owner might build up to the line of it. The 
defendant has done so, and has built bay windows from a point eight 
feet above the sidewalk, and extending from three to four feet into 
the passageway, to the top of his house, six stories high. If the op- 
posite owner should do the same, the passageway between the build- 
ings, extending upwards from a point beginning eight feet above the 
surface of the ground, would be eight feet, instead of sixteen, in width. 
It would be half closed up, so far as Hght and air and prospect are con- 
cerned. And, if this may be done, it is difficult to place any practical 
limit to what might be done in this manner. The passageway was de- 
signed as a thoroughfare for the accommodation of many persons. In 
appearance, it is on the plan indistinguishable from a narrow street. 
It is connected at each end with broad and important streets. It was 
to be kept open. No gates could be put at the ends of it. It- was to 
be "maintained," that is, kept in good order for use. Its width shows 
that it was designed for vehicles drawn by horses, as well as for travel- 
lers afoot. The supplies for all the houses on both sides of it, for its 
entire length, would be chiefly deliverable, and all refuse matter re- 
movable, by its means. Thus we have a passageway of defined dimen- 
sions; in the rear of all the houses on t\yo broad streets, designed for 
use by all who may have occasion to seek the rear entrance of any 
houses on either street, — a passageway available also for police purposes 
and for use in the extinguishment of fires, — a passageway which is to _be 
maintained, and kept open, and designed for horses and wagons, in a 
part of a large city which is designed to be wholly occupied by dwell- 
ings of a high class, to which air and light and prospect are not only 
desirable, but essential, in the rear as well as in the front, with no limi- 
tation to the use which may be made of it or of the persons by whom 
it may be used. 

In view of these considerations, we think the language of the stipu- 
lation was designed to signify a separation of sixteen feet at least be- 
tween the rear portions of the buildings abutting on the passageway. 
A passageway sixteen feet wide was not merely to be kept open at both 
ends, but open to the sky throughout its entire lengthy for the general 
convenience and benefit. It is dasy to see that the rights of others 
would be lessened, upon any other construction. The opposite owner, 
who might not wish in like manner to build into the passageway, would 
have in the rear of his house a space just so much narrower. The ad- 
jacent owner on the same side, who did not wish to occupy a part of 
the passageway with his building, would have light, air, and prospect 
cut off. The right themselves to occupy the passage in this manner 
would be no equivalent to owners who did not wish to build their hous- 
es so as to extend back to the line of it. 



Ch. 2) EASEMENTS 225 

There is nothing in the facts proved at the hearing and reported to 
us which in any way controls the construction thus put upon the lan- 
guage of the stipulation. The result is, that a decree must be entered 
for the removal of the projections.^ " ' 

Decree accordingly.^* 



BITELLO V. UPSON. 

(Supreme Court of Connecticut, 1908. SO Conn. 497, 69 Atl. 21, 16 L. R. A. 
m. S.] 193, 125 Am. St. Rep. 126.) 

Action to restrain the obstruction of a passway, and for damages, 
brought to and tried by the court of common pleas in New Haven coun- 
ty, Wolfe, J.; facts found and judgment rendered for the plaintiff, 
and appeal by the defendant. Error and cause remanded. 

HaIvL, J.^^ Anson Brown owned a tract of land on the northerly 
side of Washington avenue in New Haven, about 89 feet wide and 230 
feet deep. In October, 1901, Brown conveyed the northerly end of 
said tract, a lot some 70 feet on the east and west, and 89 feet on the 
north and south, to the plaintiff, and also by the same deed granted the 
_£laintift' a right of jway oyer the east side of the remainder of the gran- 
tor's tract, in the following language : "And the use of a right of way 
in common with myself, heirs, and assigns, forever, over a strip of 
land ten (10) feet wide and one hundred and sixty (160) feet more or 
less deep, from Washington avenue to the above-described land." At 
the time of said conveyance there was a dwelling house on the lot con- 
veyed, and there is now also a small barn and sheds upon it, * * * 
[The title to the dominant and servient pieces had passed by mesne 
conveyances to the plaintiff and defendant respectively.] In De- 

3 4 See Crocker v. Cotting, 181 Mass. 146, 63 N. E. 402 (1902) ; Schmoele v. 
Betz, 212 Pa. 32, 61 Atl. 525, 108 Am. St. Rep. 845 (190.5). Compare Swift v. 
Cocker, 83 Ga. 789. 10 S. E. 442, 20 Am. St. Rep. 347 (1SS9). 

A. laid out a small parcel of land in seven house lots, which he conveyed in 
fee to various purchasers. All the lots had access to a 7-foot alley and some 
of the lots had no other access ; a right of way over the alley was made appur- 
. tenant to each lot, and it was stipulated that the ow^ners of the seven lots 
should bear the entire cost of the upkeep of the alley. The purchaser of one 
lot, who owned other adjacent land, secured from A. a release of all his in- 
terest in the land under the alley, and then attempted to use the alley for the 
benefit of his other land. Held, he may be enjoined by the owners of the 
other dominant lots from so doing. Greene v. Canny, 137 Mass. 64 (1884). See 
Wilson V. Ford, 209 N. Y. 186, 102 N E. 614 (1913) ; Kirkham v. Sharp, 1 
"V\Taart. (Pa.) 323, 29 Am. Dec. 57 (1832) ; Stephen Putney Shoe Co. v. Rich- 
mond, F. & P. R. Co., 116 Va. 211, 81 S. E. 93 (1914)- 

A. conveyed a parcel of land to B. in fee, with a right of way over a 30-foot 
strip still owned by A. A. subsequently conveyed another parcel to C. in 
fee, with a right of way over the same strip. Held, B. cannot enjoin C. 
from building a switch track over the said strip. Murphy Chair Co. v. Ameri- 
can Radiator Co., 172 Mich. 14, 137 N. W 791 (1912). Ace: Forsyth v. 
American Maize Products Co., 59 Ind. App. 634, 108 N. E. 622 (1915). 

3 5 Part of the opinion is omitted. , 

BiG.RlGHTS — 15 



^^x^ 



226 RIGHTS IN THE LAND OF ANOTHER (Part 2 

cember, 1906, the defendant commenced constructing on the east 
side of his dwelling house, which fronts on Washington avenue and 
adjoins said driveway, a bay window llfeet and 6 inches above the 
ground, extending about 16 feet north from the southeast corner of the 
house, and projecting over said driveway 2 feet and 6 inches. 

Upon the question of the possible interference of this Fay window 
with the plaintiff's use, of the driveway these facts are found : The 
plaintiff is engaged in the ice business and keeps his ice wagon, which 
is 5 feet and 4 inches high, upon said premises. A two-horse covered 
ice wagon is 8 feet and 6 inches high and 6 feet and 2 inches wide. 
The highest furniture van used in New Haven is 10 feet 6 inches high 
and 7 feet 4 inches wide. The highest two-horse canvas covered truck 
is 10 feet 11 inches high. The ordinary two-horse truck, loaded with 
furniture, is not higher than 11 feet. If a high furniture van were to 
be driven through the driveway into the plaintiff's premises, it could 
not be turned around on account of the buildings. .A two-horse load 
of loose hay is from 8 to 10 feet wide and from 10 to 12 feet high. 
The plaintiff purchases his hay by the bale, and has never carted any- 
thing over said driveway with which said bay window would interfere. 
The finding states that in addition to the above facts found, as stipu- 
lated by the paVties, the court personally viewed the premises, and that, 
"in the light of all the surrounding circumstances, and from a view of 
the premises," reached the conclusion that "the plaintiff is not only en- 
titled to an unrestricted right of way over the strip of land described 
in the grant to him for the purpose of passage, but is also entitled to 
the right of uninterrupted access of light and air over and across the 
same, and that the erection of the structure in question is an improper 
and material interference with, and obstruction of, such rights, thus 
rendering the right of way less beneficial and useful." * * * 

By this language, as well as from the judgment rendered upon the 
facts found, it seems clear that the court intended to hold that any ma- 
terial interference by the defendant with the "access of light and air 
over and across" the strip of land was an obstruction of the- plaintiff's 
right, even though it did not interfere with the reasonable and ordi- 
nai-y use of the right of way. Tliis ruling was erroneous. 

By his deed from Brown the defendant acquired the fee to land over 
which he was building the bay window, incumbered by a right of way 
previously granted by Brown to the plaintiff, which was a right of pas- 
sage over the 10-foot strip. Hart v. Chalker, 5 Conn. 311-314. The 
deed from Brown to the plaintiff containedjio express grant of an ease- 
ment of light and air. Implied grants of such easements not reasona- 
bly necessary for the enjoyment of the rights expressly granted are 
not favored in this state. Section 4046, Gen. St. 1902. There wa^_no^ 
implied grant to the plaintiff of a right to have light and air pass over 
the driveway to any greater extent than was necessary for the rea- 
sonable enjoyment of the right of passage granted. Puorto v. Chieppa, 
78 Conn. 401-404, 62 Atl. 664; Robinson v. Clapp, 65 Conn. 365, 32 



Ch. 2) EASEMENTS 227 

Atl. 939, 29 L. R. A. 582 ; Atkins v. Bordman, 2 Mete. (Mass.) 457, 37 
Am. Dec. 100; Gerrish v. Shattuck, 132 Mass. 235. We are unable to 
see how the projection 2i/2 feet over the driveway of a bay window 
11% feet from the ground could so diminish or affect the supply of 
light and air in the driveway as to prevent those persons who have the 
right to use it, or those vehicles which are permitted to be driven over 
it, from passing along it with comfort, safety, and convenience, and the 
trial court has, not found that it would. The driveway is not to be kept 
supplied with light and air for the benefit of the public. The way grant- 
ed to the plaintiff is appurtenant to his land, and is a private one. That 
this lane is known as "Washington Place" does not make it a public 
court qrjhighway or thoroughfare. The deed to the defendant de- 
scribes it as "leading to and from Washington Place." The grant to 
the plaintiff' gives no right to any person' to use it for any other pur- 
pose than in passing to and from the plaintiff's premises. 

It follows from what we have said that the judgment was erroneous,_ 
unless it appears that the bay window itself would constitute a physi- 
cal obstruction to the proper use of the driveway, permitted by the deed 
to the plaintiff. The court has not found that it would, and the facts 
found show that it would not. The top of the highest loaded vehicle 
described in the finding, a two-horse load of loose hay, which never 
has passed and probably never will pass through the driveway, might 
extend 6 inches above the bottom of the bay window. If there should 
ever be any occasion to drive such a loaded vehicle by the bay window, 
it evidently could be done without any inconvenience. In inquiring 
whether an injunction ought to be granted upon the ground that the 
bay window may directly interfere with the plaintiff's use of the drive- 
way the proper question is, not what use the plaintiff might possibly 
attemp t to make of it^ but wEat uses can he reasonably be expected to 
hav e p"ccaiTon to, make of it.^^ Such uses would seem to be covered by 
those, the measurements required for which are given in the find- 
ing. * * * 

There was error, and thejudgment is set aside, and the case remand- 
ed, with directions to render judgment for the defendant. In this opin- 
ion the other Judges concurred. ^'^ -.^J^ Uu4 

36 A. had a right of way to rnd from his wood lot over three adjoining 
tracts of land belonging to B. B. put up fences between the tracts, with 

■movable rails at A.'s right of way. In an action by A. against B. to compel 
him to remove these obstructions, the court held that B. could not l>e com- 
pelled so to do, saying: •' * * * The plaintiff's lot is still wood lot. It 
may remain so for many years. * * * There is nothing inconsistent in 
holding that tbe present arrangements are suitable and sufficient under 
existing circumstances ; and after these circimistances shall have changed 
and the question .shall arise as to what shall _then be proper, to determine 
that a passage perpptually opan * * * sha7l be required of the defend- 
ant." Bakeman v. Talbot. 31 N. Y. 366, 88 Am. Dec. 275 (1865). 

37 Ace. : Atkins v. Bordman, 2 Mete. (IMass.) 457, 37 Am. Dec. 100 (1841),; 
Grafton v. Moir, 130 X. Y. 405, 29 X. E. 974, 27 Am. St. Rep. 533 (1S92). 

A. owned two adjoining city lots, there being an alley on the east side of 



228 RIGHTS IN THE LAND OF ANOTHER (Part 2 



PITTSBURGH, FT. W. & C. RY. v. PEET. 

(Supreme Court of Pennsylvania, 1S03. 152 Pa. 488, 25 Atl. 612, 19 L. K. A. 

467.) 

Ejectment for a lot of ground on the south side of Robinson street 
in the city of Allegheny. 

At the trial, before Stowe, P. J., plaintiff claimed title to the land 
in controversy by virtue of condemnation proceedings in 1855. Part 
of the land condemned was used by the railroad company for its tracks 
and abutments ; but tlie lot in suit was not in actual occupation of the 
company. At the time of the condemnation proceedings, the assistant 
engineer of the railroad company which condemned the land testified 
that the property was not to be used for sidings or depot purposes, but 
it was intended eventually to be used to build protection walls upon it 
on either side and fill them in. Defendants averred that they bought 
the land without any actual notice that the railroad company claimed 
it, and they were about to bnild a warehouse upon it when this action 
was brought. 

[Verdict and judgment for plaintiffs. Defendants appeal.] 

Paxson, C. J.^^ This was an action of ejectment in the court be- 
low. The plaintiffs showed title to the locus in quo by certain deeds, 

the west lot. A. granted the east lot to B. in fee, "together with the free use 
* * * of the said alley for free ingress * * * and of a water course 
therein, reserving to the owner of said lot adjoining to the westward the right 
of building over the said alley at the same height and of the same depth as 
the same is now built over." A. later conveyed the west lot to C. in fee, 
who built over for a greater depth than at the time of the above deed. 
It was admitted that B.'s use of the ally as a way and water course 
was not prejudiced. Held, B. has no cause of action against C. Duross v. 
Singer, 224 Pa. 573, 73 Atl. 951 (1909). 

A. grants B. "the free and undisturbed right to the use" of a way over A.'s 
land. Held, A. may later put a gate across the way. Boyd v. Bloom, 152 Ind. 
152, 52 N. E. 751 (1898) ; Brill v. Brill, 108 N. Y. 511, 15 N. E, 538 (1887). 
Otherwise where the way was over a private alley in a city. Flaherty v. 
Fleming, 58 W. Va. 669, 52 S. E. 857, 3 L. R. A. (N. S.) 461 (1905). Compare 
Ballinger v. Kinney, 87 Neb. 342, 127 N. W. 239 (1910). 

"It is true that a way gained by adverse use gives rights commensurate with 
the adverse use. But, if the use be for agricultural purposes only, then the 
way becomes a way for that use — a use to be exercised in a reasonable man- 
ner; and reasonable use of a way for agricultural purposes, whether created 
by grant or adverse user, may properly be subjected to gates and bars not un- 
reasonably established. The way may be gained without being so obstructed 
at all, but it is, nevertheless, a way for a particular use; and, in the enjoy- 
ment of that use, unreasonable obstructions only are prohibited. The nature 
of the easement gained determines its character, and not the particular man- 
ner of the use that created the right." Haskell, J., in Ames v. Shaw, 82 Me. 
379, 19 Atl. 856 (1890). Ace: Luster v. Garner, 128 Tenn. 160, 159 S. W. 604, 
48 L. R. A. (N. S.) 87, Ann. Cas. 1914D, 769 (1913). Contra: Fankboner v. 
Corder, 127 Ind. 164, 26 N. E. 766 (1891). Compare McMillan v. Cronin, 75 
N. Y. 474 (1878) ; Bolton v. Murphy, 41 Utah, 591, 127 Pac. 335 (1912). 

If the gate is a proper one, the dominant is under the duty of keeping it 
closed. Damron v. Justice, 162 Ky. 101, 172 S. W. 120 (1915). 

38 The statement of facts is abridged and part of the opinion Is omitted. 



Ch. 2) EASEMENTS 229 

and by proceedings to condemn it for railroad purposes. The defend- 
_ants contended that, if the plaintiffs did actually condemn the strip 
of ground in question, they could not recover in ejectment, for the 
reason that they did not acquire a fee in the ground, but only an. 
easem ent, and that ejectment will not lie for a mere right of way. 
The vice of this argument consists in treating the plaintiff's right as 
a mere easement or right of way. It is a great deal more than a right 
of way. They h ave the actual possession of the property, and that^ 
poss ession is exc lusive, at all tunes and for all purposes, except where 
a way crosses it. Railway Co. v. Hummell,. 44 Pa. 375, 84 Am. Dec. 
457; Railroad Co. v. City of Philadelphia, 88 Pa. 424. The estate 
acquired by a railroad company by a condemnation of land is often 
spoken of as an "easement," but the term is used in a loose way, for 
the purpose of distinguishing it from a "fee." 

In the recent case of Pennsylvania S. V. R. Co. v. Reading Paper 
Mills, 149 Pa. 18, 24 Atl. 205, it was said by our Brother Mitchell: 
"Such title is sometimes called an 'easement,' but it is a right to ex- 
clus ive possession, — to fence in, to build over the whole surface, to 
raise and maintain any appropriate superstructure, including neces- 
sary foundations, and to deal with it within the limits of railroad uses 
as absolutely and as uncontrolled as an owner in fee. There was 
no such easement at common law, and it may well be doubted if it is 
not a misnomer to extend to this newly-invented interest in land the 
name of 'easement,' perhaps appropriate enough to the railroad's ordi- 
nary right of way for its tracks. It would seem to be rather a fee in 
the surface and so much beneath as may be necessary for support, 
though a base or conditional fee, terminable on the cesser of the use 
for railroad purposes. But, whatever it may be called, it is, in sub- 
stance, an interes,t in the land, special and exclusive in its nature, and 
which may be the subject of special injury by the obstruction of ac- 
cess to the abutting street, and therefore within the rule which gov- 
erns the application of equitable relief. The right of exclusive posses- 
.sion includes the right of ingress and egress from ,the street, and in 
this respect the injury is exactly the same as to a tenant for life or 
for years, whose right to relief would be unquestionable, and is en- 
tirely different from the general right of the public to pass along the 
street." * * * 

By the appellants' second point, the court below was asked to in- 
struct the jury as follows : "That, there being no evidence in the case 
of any necessity for the use of the property in question, or of any 
interfefence by its present use with the operations of their railroad 
company, the railroad company cannot recover in an action of eject- 
ment." This point was properly refused. When a railroad company 
condemns land, it is of necessity the judge of how much is required 
for its use. If this question were submitted to a jury in every case, 
the righ t of e rninent domain would be of little practical value. The 
company had a right, when it condemned the property, to regard and 



230 RIGHTS IN THE LAND OF ANOTHER (Part 2 

make provision for its future, as vvell as its present needs. This is 
settled law. It is sufficient to refer to Pittsburgh Junction R. Co.'s 
Appeal, 122 Pa. 530, 6 Atl. 564, 9 Ain. St. Rep. 128. If it condemns 
for future use land which it does not need at the time, the nonuser of 
a portion for present purposes cannot be held to be an abandonment. 
We are of opinion that, under the evidence in the case, the court be- 
low was justified in directing a verdict in farvor of the plaintiffs. 
Judgment affirmed.^® 



ATLANTIC COAST LINE R. CO. v. BUNTING. 
(Supreme Court of North Carolina, 1915. 16S N. C. 579, 84 S. E. 1009.) 

Appeal from Superior Court, Pitt County ; Peebles, Judge. 

Action by the Atlantic Coast Line Railroad against J. R. Bunting. 
From a judgment for plaintiff, defendant appeals. Reversed. 

Civil action to enjoin erection of a brick building on plaintiff's right 
of way, heard on return to preliminary restraining order. On the 
hearing, the restraining order was made permanent, and enjoining 
defendant from further proceeding with the building, whereupon de- 
fendant excepted and appealed. 

Hoke, J. Our decisions are to the eft'ect that aj;ailroad ngbt of way^. 
when once acquired, may be occupied and used by the company to its 
full extent, whenever the proper management and business necessities 
of the road may so require, and the company is made the judge of 
such necessity. Railroad v. McLean," 158 N. C. 498, 74, S. E. 461; 
Earnhardt v. Railroad, 157 N. C. 358, 72 S. E. 1062; Railroad v. 
Olive, 142 N. C. 273, 55 S. E. 263. And, further, that, to "the ex- 
tent that the land covered by the right of way is not presently re- 
quired for the purposes of the road, the owner may continue to oc- 
cupy and use it in a manner not inconsistent with the full and proper 
enjoyment of the easement." Lumber Co. v. Hines, 126 N. C. 254, 
35 S. E. 458 ; Railroad v. Sturgeon, 120 N. C. 225, 26 S. E. 779. Both 
positions will be found stated and approved in the more recent cases 
of Coit v. Owenby, 166 N. C. 136-138, 81 S. E. 1067, and Hendrix 
v. Railroad, 162 N. C. 9, 77 S. E. 1001, and it is further established in 
this state, both by statute and precedent, that, when the company has 
acquired and properly entered on the enjoyment of its easement, the 
further appropriation and use of the right of way, as indicated, may 
not be destroyed or sensibly impaired by reason of the occupation of 

89 Ace. : Kansas & C. P. Ry. v. Burns, 70 Kan. 627, 79 Pac. 238 (1905). 

A. owned a house fronting on a street with a stable and yard in the rear, 
the yard being connected with the street by an arched passageway under the 
house. A. conveyed the rear lot to B. in fee, "together with the exclusive use 
of the said gateway" or passageway, describing it by metes and bounds. B. 
later lined the passageway with boards, and converted it into a book shop. 
Held, a: has no cause of action. Reilly v. Booth, L. R. 44 Ch. D. 12 (1890). 



Ch. 2) EASEMENTS 231 

the owner or other person. Revisal, § 388; Beattie v. Railroad, 108 
N. C. 462, 433, 12 S. E. 913 ; Railroad v. McCaskill, 94 N. C. 746. 

A correct application of these principles to the- facts in evidence, 
about which there is no substantial dispute between the parties, is, 
in our opinion, against the ruling of the court below on the question 
presented. From these facts, it appears that plaintiff is now operating 
a railroad through or by the town of Bethel, and that, under its vari- 
ous charters, its right of way extends for 100 feet each way from the 
center of its track; that formerly the town was some further away, 
but soon after the completion of the road, about 1885, the business 
portion was moved towards the southern side of the track, and a sub- 
stantial block of business buildings, including a bank, two hotels, and 
some large brick stores, were erected along said track and fronting 
the same, leaving a space of 65 feet between said buildings and the 
track, which space was used as a public street known as Railroad street, 
tlie principal business street of the town, and had been since the 
before mentioned date, 1885 ; that defendant, owning one. of the 
lots^ on this street, had bought an old warehouse from the company 
and placed it on the lot and had used it as a business house or ware- 
Tiause for several years, till the fall of 1914, when he tore it down 
with intent to erect on the lot a brick business building, this being sub- 
stantially in line with the buildings already along the street and situ- 
ate, for some distance, on plaintiff's right of way. 

Tn making our present decision, we must not be understood as hold- 
ing that, under usual or ordinary circumstances, the owner of prop- 
erty, subject to such an easement, would be justified in building a per- 
manent brick structure on the plaintiff's right of way, but there is 
nothing in this record which shows or tends to show that plaintiff 
company has any present purpose of putting in a double track, or that 
the proposed building will tend to interfere with the proper and ef- 
ficient operation of the road, or that it will sensibly increase the haz- 
ards incident to its operation, and, in the absence of some such evi- 
dence, we must hold, as stated, that, on the facts presented, there is 
nothing to indicate that the proposed building or its contemplated use 
will, in any way, tend to interfere with the "full and proper enjoy- 
ment of plaintiff's easement," the test suggested in Coit v. Owenby, 
■ supra, and the authorities cited in its support. It was only a business 
building in line with the other buildings on the block, and, so far as 
appears, it did not even sensibly increase the obstruction to the view, 
at times desirable for the safe operation of plaintiff's trains. 

The case of Coit v. Owenby was cited on the argument as authority 
for the position that, on the facts in evidence, the plaintiff might have 
some proprietary interest in that portion of defendant's lot on the 
right of way, which it might rent or lease for warehouse or other busi- 
ness purposes to some patron of the road. Owing to the fact that 
the testimony on that point in Coit v. Owenby, supra, was somewhat 
obscurely stated, in the case on appeal, the decision may, in some 



232 RIGHTS IN THE LAND OF ANOTHER (Part 2 

aspects of the evidence, permit of such an interpretation and we deem 
it well, therefore, to say that, in the case referred to, the court never 
intended to hold that a railroad had the right to rent out the right 
of way to an individual for strictly personal or private business pur- 
poses. The decision was made to rest on that aspect of the testimony 
which permitted the interpretation and tended to show that the right 
of way had been let to a patron of the road as a terminal 'facility 
for receipt and shipment of freight, and it was held that the com- 
pany might do this to the extent that it did not interfere with the 
facilities for serving the public. A railroad company would not be 
permitted to sell or farm out any portion of its right of way to an^ 
individual for any purposes extraneous to its chartered rights and 
duties. 

We find there was error in the judgment rendered, and, on the rec- 
ord, the same must be reversed. -?^^k^ Ju^ 

Reversed.* "^ [^ "^^ ' 

WaIvKER and Brown, JJ., dissenting. 



SECTION 3.— EASEMENTS IN STRUCTURES 



BROOKS V. CURTIS et al. 
(Court of Appeals of New York, 1872. 50, N. Y. 639, 10 Am. Rep. 545.) 

Appeal from judgment modifying judgment in favor of defendants, 
entered upon the decision of the court at Special Term, and affirming 
judgment as modified. 

Action to compel defendants to remove encroachments alleged to 
have been placed by defendants upon the premises of plaintiff, and 
to restore the property to its former condition. 

The parties own adjoining premises in the city of Rochester. In 
1846 Everett Peck owned both premises. He deeded to plaintiff in 
July of that year. At that time Peck had begun the construction of 
a three-story brick building upon the lot. The easterly line of the 
premises conveyed to plaintiff is thus given in the deed: "Beginning 

40 It has been held that the owner of the land subject to a railroad right of 
way may not make cattle guards under oi; along the roadbed, Alton & S. E. 
Co. V. Baugh, 14 111. 211 (1852) ; may excavate sand so- far as it does not in- 
terfere with the use of the land for railroad purposes, Vermilya v. Chicago, M. 
& St. P. Ry. Co., 66 Iowa, 606, 24 N. W. 234, 55 Am. Rep. 279 (1885) ; may not 
cultivate cotton along the right of way against the objection of the railroad, 
Wilmot V. Yazoo & M. V. R. Co., 76 Miss. 374, 24 South. 701 (1898) ; may in- 
stall a private crossing from one part of his farm to another, Cincinnati, H. 
& D. R. Co. V. Wachter, 70 Ohio St. 113, 70 N. E. 974 (1904). 

A railroad company has no right, as against the owner of the land through 
which the right of way runs, to sink oil wells in the right of way. Oonsum-, 
ers' Gas Trust Co. v. American Plate Glass Co., 162 Ind. 393, 68 N. E. 1020 
(1903). ' 



Ch. 2) EASEMENTS 233 

at a point on the north of Buffalo street * * * opposite the 
center of the brick wall which said party of the first part is now erect- 
ing as the west wall of a block of stores ; thence northwardly through 
the center of said brick wall seventy-nine feet." In 1855 plaintiff 
erected a three-story building, using the wall for the east wall. In 
1856 the defendants acquired title from the executors of Peck to the 
other lot. In 1866 they added two stories to their building — raising 
the party wall for that purpose. They also lowered the ceiling of the 
upper story of the building, as it was, some six feet, letting the joists 
into theoTd wall, and passed iron anchors through the wall, fastened 
on the west face of the wall by nuts and plates. The anchors were 
inserted with the verbal consent of plaintiff. The latter gave no con- 
sent to raising the wall. After the addition was completed, ice and 
snow TronTthe roof of defendants' building fell upon plaintiff's roof, 
doing some damage. The trial court dismissed the complaint. 

The judgment of the General Term was as follows: "Ju^?"^^^^ 
modified so as to restrain the defendants from maintaining their roof 
in such manner and of such construction that the water and snow 
from it, and the ice formed from the waters falling from it, descend 
upon the roof of the plaintiff's adjoining building. As thus modified, 
judgment affirmed, without costs of this appeal to either party." 

Rapallo, J. The deed from Everard Peck to the plaintiff states 
tliat the wall in controversy was, at the time of the conveyance, being 
erected by Peck as the west wall of a block of stores. The center line 
of jth^ wall is, by the deed, made the easterly boundary of the land 
conveyed, which includes the land on which the westerly half of the 
wall stands. It appears that Peck's stores were afterward completed, 
and the plaintiff erected a building upon his own lot, using the wall 
as a party wall, and inserting in it the joists of his building. Peck 
afterward conveyed to the defendant, who made the addition to the 
height of the wall. 

We think that the language of the deed and the acts of the parties 
show that it was their intention that the wall should be a party wall 
for the common use of both lots. The deed states that Peck was at 
the time erecting the wall, half of which was conveyed, and that 
it was to be the west wall of his block. This implies that the wall 
was not then completed, and that Peck was to have the right to com- 
plete it and use it as the west wall of his block. If the deed is to be 
treated as an absolute conveyance, free from any reservation, easement 
or privilege in the co-owner of the wall, Peck would have had no right 
to proceed to complete it, or at least that part which was beyond his 
line, after, the conveyance. It cannot be supposed that such was the 
inte ntion of the parties. Subsequently to this conveyance the wall has 
been used for more than twenty years as a party wall. 

Although land covered by a party wall remains the several property 
of the owner of each half, yet the title of each owner is qualified by 



234 RIGHTS IN THE LAND OF ANOTHER (Part 2 

j;he easement to which the other is entitled; and an important ques- 
tion in this case is, whether such easement includes the right to in- 
crease the height of the wall, provided such increase can be made with- 
out detriment to the strength of the wall or to the property of the 
adjacent owner. 

This question, in the absence of statutory regulations upon the 
subject, does not seem to have been distinctly settled by authority ; 
but the fact appears in several of the cases relating to party walls that 
the height had been increased, and there is no intimation that such 
increasie was unlawful. Watt v. Hawkins, 5 Taunt 20, was an action 
of trespass. The plaintiff had added to the height of a party wall, and 
the defendant tore down the addition, for which injury the plaintiff 
brought trespass. The only point decided was, that the parties were 
not tenants in common of the land, and therefore the action of trespass 
could be maintained. In Campbell v, Mesier, 4 Johns. Ch. 335, 8 
Am. Dec. 570, a party wall, standing equally on two lots, havmg become 
ruinous, the owner on one side, against the will and in spite of the 
prohibition of the adjacent owner, pulled down the wall and rebuilt it 
higher than it was originally. It was held that the adjacent owner 
was bound to contribute to the expense of the new wall, but not to 
the extra expense of making it higher than the old. There is no in- 
timation in the case that the increase of height was wrongful. In 
Partridge v. Gilbert, 15 N. Y. 601, 69 Am. Dec. 632, the new wall 
built by the defendant was not only higher, but its foundations were 
deeper than the old wall which it replaced. The right to make these 
additions was not however discussed in the case, and perhaps there 
was no occasion to discuss it, the action being brought by the tenant 
of the adjacent lot, whose goods were injured in making the repair, and 
not by the owner. 

In Eno V. Del Vecchio, 11 N. Y. Super. Ct. 53, it was held that 
the owner on one side of a party wall might, for the purpose of im- 
proving his own premises, underpin the foundation of the wall and 
sink it deeper if he could do so without injury to the building on the 
adjoining lot ; also, that he might increase, within the limits of his 
own lot, the thickness, length or height of the wall, if he could do so 
without injury to the building on the adjoining lot. Whether he could 
raise the whole party wall higher, or whether any additional elevation 
must be wholly within the limits of his own lot, the court expressly 
declined to decide. 

We think that the right of either of the adjacent owners to in- 
crease the height of a party wall, when it can be done without injury 
to the adjoining building, and the wall is clearly of sufficient strength 
to safely bear the addition, is necessarily included in the easement. 
No adjudication adverse to that right has been referred to by counsel 
or found by us. 'The party making the addition does it at his peril ; 
and if injury results he is liable for all damages. He. must insure the 




Ch.2) /-^fU^^ EASEMENTS . 235 

safet y of the operation. But when safe it should be allowed.** The 
wall is devoted to the purpose of being used for the common benefit 
of both tenements. In Hendricks v. Stark, 37 N. Y. 106, 93 Am. Dec. 
549, it is held that a party wall is in no sense a legal incumbrance upon 
either property; that the mutual easements of adjoining proprietors 
in such walls are a_mutual benefit to each, and not a burden, but a • 
valuable app urtenant which passes with the title to the property. This 
is undoubtedly correct, provided each party is allowed to derive from 
the wall all the benefit which it is capable of affording without detri- 
ment to the other. But if, though of sufficient strength, it cannot be 
used by either party in increasing the height of his building, it may 
prove a serious injury to the property of one desiring to make that 
improvement ; an improvement which is very usual and often very 
necessary in crowded cities. The fairer view, and the one generally 
adopted in legislative provisions on the subject in this and other coun- 
tries, is to treat a party wall as a structure for the common benefit and 
convenience of both of the tenements which it separates, and to permit 
either party to make any use of it which he may require, either by 
deepening the foundation or increasing the height, so far as it can be 
done without injury to thejother. The party making the change, when 
not required for purposes of repair, is absolutely responsible for any 
damage which it occasions (Eno v. Del Vecchio, 13 N. Y. Super. Ct. 
17) ; but in so far as he can use the wall in the improvement of his own 
property without injury to the wall or the adjoining property, there 
is no good reason why he should not be permitted to do so. 

The judge has found that the wall was sufficiently strong to be of 
the increased height without any injury thereto. He has further found 
that the carrying up of the wall, under claim of fight, was with the 

*i One of two adjoining party wall owners employed a contractor to carry • 
the party wall up another story. During the process of construction that 
part of the wall which was being so carried u'p fell on the roof of the building 
of the other party wall owner, who thereupon brought action against the 
owner so causing the wall to be carried up. There was no evidence that the 
falling of the wall was due to any negligence in construction, or that the wall ^ 

was not proper for the purpose. The plaintiff relied upon Brooks v. Curti s. ajo-'o-^fJ^ 
The court said (Gray, J.): '"The argument is that this language formulated The 
ru