The question whether the establishment of a highway has the effect of extinguishing a pre-existent private right of way along the same line becomes of importance in case the highway is subsequently discontinued.44 That the concurrent existence of a highway and of a private

40. Cheda v. Bodkin, 173 Cal. 7. 158 Pac. 1025; Smith v. Roath, 238 111. 247, 87 N. E. 414; Reed v. West, 16 Gray (Mass.) 283; Atlanta Mills v. Mason, 120 Mass. 244; Dority v. Dunning, 78 Me. 381, 6 Atl. 6 (dictum); Blanchard v. Maxson, 84 Conn. 429, 80 Atl. 206.

41. See Tuttle v. Kilroa, 177 Mass. 146, 58 N. E. 682.

42. But there is perhaps a partial extinguishment, that is, an extinguishment as regards his interest in the easement, precluding him, or any one claiming under him, from thereafter exercising the easement. See Bar-finger v. Virginia Trust Co., 132 N. C. 409, 43 S. E. 910.

43. See Ecclesiastical Com'rs for England v. Kino, 14 Ch. Div. 213; Pearce v. Mcclenaghan, 5 Rich. Law (S. C.) 178, 55 Am. Dec. 710.

44. The question is referred to in Dodge v. Pennsylvania R. Co., 43 N. J. Eq. 351, but the cases in other states there referred to as adjudications on the question appear to be but partially applicable. In Murphy v. Bates, 21 R. I. 89, 41 Atl. 1011, it is said that "ordinarily a private way becomes merged in a public way," but the authorities cited (Ross v. Thompson, 78 Ind. 90; Elliott, Roads & Streets, Sec.Sec. 3 & 4) do not support the statement.

If the owner of the right of way joins with the owner of the servient tenement in dedicating the land to such public use, the dedication is obviously binding on him,47 but it would seem that, as upon the cessation of the public use the owner of the land has the same rights as before the dedication, so the owner of the easement has such rights. If the latter does not join in the dedication he is not, in theory, affected thereby,48 but whether the transformation of the private right of way into a public one could be regarded as an impairment of his rights capable of legal remedy would seem to be doubtful, in the absence at least of language in the grant of the right of way making it more or less exclusive.49

In case the highway is established by legal proceedings in which the owner of the right of way appears as a petitioner, the right may well be regarded as abandoned by him.50 In case he is not a petitioner but is a party to the proceedings, his right would seem to be extinguished to the same extent as that of the owner of the land, that is, only during the continuance of the public user, with a revival of the right upon its discontinuance,51 unless the public acquired the fee by the condemnation proceeding.52 If he is not a party to the proceeding, his right of way cannot be regarded as extinguished, so as to be incapable of assertion after the discontinuance of the highway,53 though he is, it appears, to be regarded as concluded by the proceeding, on the theory that he is not damnified by the establishment of the highway.54

45. Ante, Sec. 366a, note 35. And see Isaac G. Johnson & Co. v. Cox, 196 N. Y. 110, 89 N. E. 454.

46. The English cases are clearly to the effect that the establishment of a highway over the line of a private way does not, of itself, affect the existence of the latter. Allen v. Ormond, 8 East. 4; Brownlow v. Tomlinson,

1 Man. & Gr. 484; Duncan v. Louch, 6 Q. B. 904; R. v. Chorley, 12 Q. B. 515.

47. Bailey v. Culver, 84 Mo. 531.

48. Sarcoxie v. Wild, 64 Mo App. 403. See Post, Sec. 181.

49. See ante, 367, note 78.

50. M( Kinney v. Pennsylvania R. Co., 222 Pa. 48, 70 Atl. 946.

When the servient tenement is condemned for a railroad right of way, and the owner of the easement is made a party to the proceeding, the easement is extinguished, if the railroad acquires the fee,55 while if the railroad acquires merely the easement of a right of way, it does not seem that the private easement is extinguished, though its exercise is for the time being rendered impossible. If the owner of the easement is not a party to the proceeding, his easement, it seems, is not affected thereby.56