An easement may, by force of a particular statute, be acquired in the land of another for a public use, by proceedings under the power of eminent domain, and payment of adequate compensation. The most prominent instances of easements so acquired are the right of way privilege acquired by a railroad company through the land of an individual,5 and the privilege of the owner of land on a watercourse, under what are known as the "Mill Acts," of flooding the land of another by the erection of a dam for manufacturing or milling purposes.6 In some states the statute provides for the acquisition, by a company formed for irrigation purposes, of the privilege of constructing canals, aqueducts, or reservoirs on the land of individuals,7 and a somewhat similar privilege is frequently given by statute to local associations formed to construct canals and ditches for the drainage and reclamation of marshy districts.8 Another instance of an easement created by statute is the obligation, imposed by statute in some states, to contribute to the erection and maintenance of a partition fence.910

- As to party walls. In the absence of a statutory provision in this regard, or of the grant of an

5. 1 Lewis, Eminent Domain, Sec.Sec. 263, 449, 584; 3 Elliott, Railroads, Sec. 950 ct seq.

6. Gould, Waters, Sec.Sec. 253, 579 ct seq.; ante Sec. 339e.

7. 1 Lewis, Eminent Domain, Sec. 308; Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112; Oury v. Goodwin (Ariz.) 26 Pac. 376; In re Madera Irrigation Dist., 92 Cal. 309, 27 Am. St. Rep. 106; Paxton & H. Irrigating Canal & Land Co. v. Farmers & Merchants Irrigation & Land Co., 45 Neb. 884, 50 Am. St. Rep. 585.

In Gulf & S. I. R. Co. v. Chapman, 102 Miss. 778, 59 So. 889, it is decided that a landowner's right to have cattleguards maintained by a railway company is a "statutory easement," and that consequently a release thereof by him is binding on his successor in title. Such a view would probably not be accepted by all courts.

8. Lindsay Irrigation Co. v. Mehrtens, 97 Cal. 676; Neff v. Reed, 98 Ind. 341; Norfleet v. Cromwell, 70 N. C. 634, 16 Am. Rep. 787; Tidewater Co. v. Coster, 18 N. J. Eq. 518.

9-10. See ante, Sec. 357.

Easement to that effect, one of two adjoining owners cannot place a wall wholly or in part on the other's land. In several states, however, there are statutes in this regard, usually to the effect that one owner may place a wall to a certain extent upon the adjoining owner's land, which wall the other will have the right to use upon payment of half the cost.11

A wall is not such as is contemplated by the statute, it has been decided, unless it is susceptible of user as a party wall,12 and it has on this theory been decided that the wall cannot have openings, such as windows, therein.13 That is, though the wall belongs, when built, to the proprietor who builds it, until the other pays his proportion of the costs,14 he has no right, under the statute, to build in part on the other's land any but a solid wall.

A wall erected by one proprietor has been regarded as a party wall for the purpose of the statute, so as to give the adjoining owner certain rights therein, if its foundation is partly on the latter's land, even though

11. A statute providing that one may erect a wall in part upon the land of an adjoining owner, to be used by both as a party wall, has been held to be unconstitutional in Massachusetts. Wilkins v. Jewett, 139 Mass. 29. And there are dicto to that effect in New Jersey. Traute v. White, 46 N. J. Eq. 437, 19 Atl. 196; Schmidt v. Lewis, 63 N. J. Eq. 565, 52 Atl. 707. That such a statute is valid, see Swift v. Cal-nan, 102 Iowa, 206, 37 L. R. A. 462, 63 Am St. Rep. 443, 71 N. W. 233; Evans v. Jayne, 23 Pa. 34; Heron v. Houston, 217 Pa. 1, 118 Am. St. Rep. 898, 66 Atl. 108; Hunt v. Ambuston, 17 N. J. Eq. 208.

12. Smoot v. Heyl, 34 App. D.

C. 480; Robinson v. Hillman, 36 App. D. C. 576.

13. Smoot v. Heyl, 34 App. D. C. 480; Kiefer v. Dickson, 41 Ind. App. 543, 84 N. E. 523; Traute v. White, 46 N. J. Eq. 437, 19 Atl. 196; Sullivan v. Graffort, 35 Iowa, 531; Vollmer's Appeal, 61 Pa. 118. Contra, Jeannin v. De Blance, 11 La. Ann. 465; Pierce v. Lemon, 2 Houst. (Del.) 519.

The Iowa statute authorizes openings to be made upon taking measures to protect the other proprietor. See Shoemaker v. Wallace, 154 Iowa, 236, 134 N. W. 740.

14. Jeannin v. De Blance, 11 La. Ann. 465; Cordill v. Israel, 130 La. 138, 57 So. 778; Bertram v. Curtis, 31 Iowa, 46.

The part of the wall above the ground is wholly within the limits of the land belonging to the builder.15 When, however, the wall was not intended to encroach upon the other's land, but did so by accident and to but a slight extent, and there was nothing to indicate that it was intended to be used as a party wall, such other was considered to have no rights therein, though he could insist that the encroaching part should be removed.16 Even a wall erected entirely on one's own land may, it appears, under the Pennsylvania statute, be a party wall for the purposes of the adjoining owner if it was so intended by the one erecting it.17

The privilege, under the statute, of erecting a wall partly on the adjoining land for the use of both proprietors has been held to override the xirivilege of the adjoining owner of erecting a wall on his own land for his exclusive use, and a wall of the latter character may be destroyed if this is necessary for the purpose of erecting a wall of the former character.18

There has been held to be a user by one proprietor of a wall erected by the other, so as to make the former liable under the statute for part of the cost, when he utilized the wall as one side of a permanent frame building erected by him, though he did not use the wall for purposes of support,19 while the erection of a merely temporary shed against the wall was held not to be such a user.20 The erection of an inferior wall by the side of the other wall has also been decided not to involve a user of the latter.21

15. Lukens v. Lasher, 202 Pa. 327, 51 Atl. 887; Benner v. Cas-satt, 236 Pa. 248, 84 Atl. 780. It is immaterial that the wall is on the adjoining land to the extent of less than one half its thickness. Western National Bank's Appeal, 102 Pa. 171; Kos-ack v. Johnson, 38 App. D. C. 62.

16. Pile v. Pedrick, 167 Pa. 296, 46 Am. St. Rep. 677, 31 Atl. 646.

17. Mercantile Library Co. .v

University of Pennsylvania, 220 Pa. 328, 89 Atl. 861.

18. Western National Bank's Appeal, 102 Pa. 171; Mercantile Library Co. v. University of Pennsylvania, 220 Pa. 328, 89 Atl. 861; Heron v. Houston, 217 Pa. 1, 118 Am. St. Rep. 898.

19. Deere, Wells & Co. v. Weir-shugart Co., 91 Iowa, 422, 59 N. W. 255; Pier v. Salot (Iowa) 107 N. W. 420.