(a) Rights of way (p. 359).
(b) Highways (p. 361).
(c) Light and air (p. 363).
(d) Lateral and subjacent support (p. 365).
(e) Party walls (p. 366).
(f) Easements in water (p. 368).
Eights of way are created by the various methods mentioned in discussing easements in general. They, however, frequently arise by implication, as where land granted is represented as bounded or reached by a street.65 This is the case where a map showing such a street is referred to in the deed.66 Ways of necessity are also said to arise by implication.68 They can exist only over land of the grantor, not over that of a stranger.69 Though the necessity need not be absolute, yet great inconvenience or expense will not be sufficient.70 Ways of necessity arise chiefly through grants of parcels of land to which there is no access. It is held that the grantor must have intended to give a right to pass over his land to enable the granted estate to be enjoyed.71 Where such right of way exists, the owner of the servient estate has the first right to select the way.72 If he neglects to do so, the owner of the dominant estate may locate the way, doing as little damage as possible.73 The rule is the same as to the location of ways created by express agreement if it is not otherwise provided for.74 After a right of way has once been located, it cannot be changed without the consent of both parties.75 Ways of necessity may be used for all purposes necessary for the enjoyment of the dominant estate;76 but other ways can be used only for the purposes for which they were created.77 Therefore one who has the right of way to drive beasts to one lot
65 Tobey v. Taunton, 119 Mass. 404; Franklin Ins. Co. v. Cousens, 127 Mass. 258; Crow v. Wolbert, 7 Phila. (Pa.) 178; Ford v. Harris (Ga.) 22 S. E. 144.
66 Taylor v. Hopper, 62 N. Y. 649; Regan v. Light Co., 137 Mass. 37; Chapin v. Brown, 15 R. I. 579, 10 Atl. 639.
68 Holmes v. Seeley, 19 Wend. (N. Y.) 507; Kripp v. Curtis, 71 Cal. 62, 11 Pac. 879; Pernam v. Wead, 2 Mass. 203.
69 Bass v. Edwards, 126 Mass. 445; Kuhlman v. Hecht, 77 111. 570; Taylor v. Warnaky, 55 Cal. 350; Tracy v. Asherton, 35 Vt 52; Bullard v. Harrison, 4 Maule & S. 387.
70 Nichols v. Luce, 24 Pick. (Mass.) 102; Oliver v. Pitman, 98 Mass. 46; Francis' Appeal, 96 Pa. St. 200; Parsons v. Johnson, 68 N. Y. 62; Pentland v. Keen. 41 Wis. 490: Field v. Mark. 125 Mo. 502. 28 S. W. 1004.
71 Nichols v. Luce, 24 Pick. (Mass.) 102; Holmes v. Seely, 19 Wend. (N. Y.) 507; Wissler v. Hershey, 23 Pa. St. 333; Miller v. Richards (Ind. Sup.) 38 N. E. 854; Boyd v. Woolwine (W. Va.) 21 S. E. 1020; Clark v. Cogge, Cro. Jac. 170; Parker v. Welsted, 2 Sid. 39, 111; Pinnington v. Galland, 9 Exch. L But see Kingsley v. Improvement Co., 86 Me. 279, 29 Atl. 1074. Cf. Worth-ington v. Gimson, 2 El. &. El. 618; Dodd v. Burchell. 1 Hurl. & C. 113; Wheel don v. Burrows, 12 Ch. Div. 31. Where one conveys to a railroad company a right of way through his land, so as to cut off access to a part thereof, he haa a way of necessity over the land conveyed. New York & N. E. R. Co. v. Board of Railroad Com'rs, 162 Mass. 81, 38 N. E. 27. And see Morris v. Edgington, 3 Taunt. 24.
72 Schmidt v. Quinn, 136 Mass. 575; Russell v. Jackson, 2 Pick. (Mass.) 574.
73 Towers v. Harlow, 53 Mich. 507, 19 N. W. 257.
74 Hart v. Connor, 25 Conn. 331.
75 Wyukoop v. Burger, 12 Johns. (N. Y.) 222; Smith v. Lee, 14 Gray (Mass.) 473; Kraut's Appeal, 71 Pa. St 64; Karmuller v. Krotz, 18 Iowa, 352. When rights of way are acquired by prescription, the user must be of some definite track. Bushey v. Santiff, 86 Hun, 384, 33 N. Y. Supp. 473; Garnett v. City of Slater, 56 Mo. App. 207; Follendore v. Thomas, 93 Ga. 300, 20 S. E. 329.
76 Gunson v. Healy, 100 Pa. St. 42. A way of necessity ceases as soon as there is another way which the dominant owner can use. Holmes v. Goring, 2 Bing. 76. But see Proctor v. Hodgson, 10 Exch. 824.
77 At water v. Bodfish, 11 Gray (Mass.) 150; French v. Marstln, 24 N. H. 440; Allan v. Gomme, 11 Adol. & E. 759; Wimbledon and Putney Commons Conservators v. Dixon, 1 Ch. Dlv. 362; Henning v. Burnet, 8 Exch. 187; Corporation of London v. Riggs, 13 Ch. Div. 798. But see Newcomen v. Coulson, 5 Ch. Dlv. 133; Cannon v. Villars, 8 Ch. Div. 415; Abbott v. Butler, 59 N. H. 317.
§ 227) cannot drive beasts, over that way, to another lot also.78 Where there is such an excessive use of a right of way, it will give the servient owner a right of action, but will Dot justify him in closing the way.79 A right of way may include the right to erect and maintain a bridge.80 In the absence of other arrangement, the owner of the dominant estate is required to keep the way in repair.81 If the owner of the servient estate has agreed to repair, and fails to do so, those entitled to the use of the way may go upon other land of the servient owner, when necessary, to pass around obstructions.82 Rights of way may be for footpath merely or for carriages, or they may be for both foot and horse.83 Easements of this kind may be created in such form and with such conditions as the parties choose to impose, by their express contracts.84
227. Highways are rights of way in the public in general. They may be either
(a) Easements, or
(b) Estates in fee simple.
With highways owned in fee simple we have nothing to do in this connection. The ownership in such case is in the public,-the state
78 Howell v. Rex, 1 Mod. 190. And see Skull v. Glenister, 16 C. B. (N. S.) 81; Davenport v. Lampson, 21 Pick. (Mass.) 72; French v. Marstin, 32 N. H. 316; Kirkham v. Sharp, 1 Whart. (Pa.) 323; Lewis v. Carstairs, 6 Whart. (Pa.) 193. Cf. Williams v. James, L. R. 2 C. P. 577; Parks v. Bishop, 120 Mass. 340.
79 Walker v. Gerhard, 9 Phila. (Pa.) 116; Hayes v. Di Vito, 141 Mass. 233, 4 N. E. 828.
80 See Schuylkill Nav. Co. v. Stoever, 2 Grant, Cas. (Pa.) 462.
81 Wynkoop v. Burger, 12 Johns. (N. Y.) 222; Taylor v. Whitehead, 2 Doug, 745. See Gerrard v. Cooke, 2 Bos. & P. N. R. 109.
82 So when the servient owner has obstructed. Farnum v. Piatt, 8 Pick. (Mass.) 339; Leonard v. Leonard, 2 Allen (Mass.) 543; Kent v. Judkins. 53 Me. 160; Haley v. Colcord, 59 N. H. 7. But cf. Taylor v. Whitehead, 2 Doug. 745; Williams v. Safford, 7 Barb. (N. Y.) 309.
83 Ballard v. Dyson, 1 Taunt. 279; Cowling v. Higginson, 4 Mees. & W. 245.
84 Whether a way has been created or granted is in each case a matter of construction. Espley v. Wilkes, L. R. 7 Exch. 298; Kay v. Oxley, L. R. 10 Q. B. 360.