the law of waste is not held precisely in the same manner as in England; but it is accommodated to the condition and circumstances of a new country, still in the progress of settlement. (a) Therefore, to cut down trees is not always held to be waste here, in every case where, by the common law of England, it would be so held; but regard is had to the condition of the land, and to the object of felling the trees, and whether good husbandry required that the land should be cleared and reduced to tillage; and generally, whether the tenant has, in the act complained of, conformed to the known usage and practice of the country in similar cases. And to what extent wood and timber may be felled without waste is a question of fact for the jury to decide, under the direction of the court.2 (b) Under this issue, therefore, it would seem that the defendant may show that the act done was according to the custom of the country, and for the benefit of the land, it being virtually to show that it was no waste; though by the common law of England, such a defence, being matter in justification or excuse, must be specially pleaded.3 (c) But it is no defence to

1 Findlay v. Smith, 6 Munf. 134; Jackson v. Brownson, 7 Johns. 227, 233; Parkins v. Cox, 2 Hayw. 339; Hastings v. Crunkleton, 3 Yeates, 261. See 1 Cruise's Dig. tit. 3, Estates for Life, c. 2 (Greenleaf's ed. 1856), vol. i. p. 120 (* 115), § 2, and n.

2 Jackson v. Brownson, 7 Johns. 227, 233.

8 Ibid. See Simmons v. Norton, 7 Bing. 640; s. c. 5 Moore & P. 645.

(a) "It is apprehended, that a more liberal rule is now applied in respect to constructive acts of waste in England than formerly, and there certainly is a much more liberal construction put upon such acts in this country than that of the common law. The proper test in all these cases seems to be, Does the act essentially injure the inheritance as it will come to the reversioner? and this is a question for the jury." 1 Washburn on Real Property, 146.

In this country, no act of a tenant amounts to waste, unless it is, or may be, prejudicial to the inheritance, or to those who are entitled to the reversion or remain. der. Pynchon v. Stearns, 11 Met. (Mass.) 304. See also Crockett v. Crockett, 2 Ohio St. 180; McCullough v. Irvine, 13 Pa. St. 438; Clemence v. Steere, 1 R. I. 272. As incident to an estate for life, the wife may rightfully take from the land a reasonable amount of fuel for the supply of herself and family, upon the farm, including the persons employed to cultivate it; and the fact that such persons are paid by a share of the crops, as tenants at the halves, and

in cold weather keep a separate fire, does not of itself prove an unreasonable use. Smith v. Jewett, 40 N. H. 530.

(b) The tenant for life has a right to work open mines (Reed v. Reed, 1 C. E. Green (N. J.), 248), but not to open mines that have never been opened before he came into possession, or that have been abandoned before he came into possession (Viner v. Vaughan, 2 Beav. 466; Gaines v. Green, &c. Co., 32 N. J. Eq. 86). Yet if a mine has only been temporarily abandoned, for want of a market, he may work the mine. Bagot v. Bagot, 32 Beav. 509; Legge v. Legge, Ib. 515.

(c) In England, it is waste if a tenant cuts down trees and sells them in order to get money to make repairs which he is obliged to make. Bac. Abr. Waste, F. 1, Co. Lit. 53 b. In America, this doctrine has been modified by the sound sense of Judge Story in Loomis v. Wilbur, 5 Mason, C. C. 13, where he holds this not to be waste if it is the most economical way of making repairs, and most for the benefit of all concerned, and the proceeds are bona

show that the defendant was bound by covenant to yield up the premises in good repair at the end of the term, and that therefore the plaintiff should resort to his remedy on the covenant; for he may have remedy in either mode, at his election; otherwise, he might lose his recompense by being obliged to wait until the end of the term.1 (a)

1 2 Saund. 252 c, n. by Williams; Kinlyside v. Thornton, 2 W. Bl. 1111; Jefferson v. Jefferson, 3 Lev. 130.

fide applied for that purpose. But it is waste to sell timber off land to make improvements which the tenant is not bound to make, and he cannot justify it on the ground that the benefit to the estate compensates for the injury. Miller v. Shields, 55 Ind. 71; Clark v. Cummings, 5 Barb. (N. Y.) 339; Sohier v. Eldredge, 103 Mass. 341, p. 351; Smith v. Jewett, 40 N. H. 530. Thus, where a tenant of a farm rebuilt a barn which had been struck by lightning and burnt, it was held that she could not cut and sell timber, to reimburse herself for the expense of rebuilding. Miller v. Shields, supra.

(a) For an unauthorized removal of fix

tures, put in by a lessee under a special agreement in writing as to his right to remove, and the lessor's right to purchase them, the lessor's remedy is by action on the agreement, and not on the covenant against waste in the lease. Where there is a special agreement between landlord and tenant regarding fixtures, it overrules and supersedes the general rules of law regulating their mutual rights and obligations. Naylor v. Collinge, 1 Taunt. 19; Thresher v. East London Waterworks, 2 B. & C. 608, and 4 D. & R. 62; Amos & Ferard on Fixt. *108, *109; Wall v. Hinds, 4 Gray, 256, 273.

WAY.

§ 657. Foundation of private right of way. A private right of way may be said to exist only by grant or agreement; for prescription is but a conclusive presumption of an original grant or right; and necessity, such as creates a right of way, may be regarded as a conclusive presumption of a grant or a license.1 (a) The nature of a prescription, whether for a right of way or other incorporeal franchise, has already been considered under that title.2 § 658. Way of necessity. A right of way of necessity is founded on an implied grant; but convenience alone is not sufficient to raise the implication of a way.3 (b) Where one has a way of

1 Nichols v. Luce, 24 Pick. 102; Woolrych on Ways, p. 72, n. (g); Gayetty v. Bethune, 14 Mass. 49, 53.

2 Supra, §§ 537-546.

Nichols v. Luce, 24 Pick. 102. And see Brice v. Randall, 7 Gill & J. 349.

(a) A right of way carries with it all rights to the use of the soil properly incident to the free exercise and enjoyment of the right granted or reserved. The abutters on such way have a right to make improvements therein, so as to make it more beneficial to themselves, without injury to the owners of the land, or others having an equal right of way; but they have not a right to use it for another and distinct purpose, and it is for the jury in any given case to determine whether the use complained of is for another and distinct purpose than that of a way. If it be used for such other and distinct purpose, the owner of the land may have his action, although he sustains no actual damage; the law permitting him to recover nominal damages to vindicate his right. Appleton v. Fullerton, 1 Gray (Mass.), 186, 192, 194; Atkins v. Boardman, 2 Met. (Mass.). 467. Where a grantor conveys land, bounding it on a street or way, he and his heirs are estopped to deny that there is such a street or way. It is an implied covenant of the existence of such a way. Parker v. Smith, 17 Mass. 413; O'Linda v. Lothrop, 21 Pick. (Mass.) 292; Tufts v. Charlestown, 2 Gray (Mass.), 272. The grantor of land may create a right of way therein in his own favor, by a reservation or exception thereof in the grant, either in gross, or as annexed

to the land of the grantor. Bowen v. Conner, 6 Cush. (Mass.) 132; Cruise's Digest (Greenleaf's ed. 1856), tit. xxiv. Ways, vol. ii. pp. 25–35 (*85–*91).

(b) Wissler v. Hershey, 23 Pa. St. 333; Kimball v. Cocheco R. R. Co., 27 N. H. 448; McTavish v. Carroll, 7 Md. 352. See also Hyde v. Jamaica, 27 Vt. 443. A right of way by necessity can only arise by grant express or implied; it does not exist where the title of the party is by escheat. Proctor v. Hodgson, 29 Eng. Law & Eq. 453. Nor does it exist where neither the party claiming the way, nor the owner of the land over which it is claimed, nor their privies, was ever seised of both tracts of land. Stewart v. Hartman, 46 Ind. 331. Where land conveyed is wholly surrounded by land of the grantor, or partly by this and partly by lands of strangers, a "way of necessity over the grantor's land passes to the grantee by the conveyance without express mention, and will continue to be appurtenant to the land, so as to pass to another. Taylor v. Warnaky, 55 Cal. 350; Washburn, Easements & Servitudes, p. 163, and cases there cited. This way of necessity is, however, extinguished when any other suitable approach to the land is provided. Oliver v. Hook, 47 Md. 301; Pomfret v. Ricroft, 1 Wms. Saunders, 323, n.

necessity over another's land, the party, while the way remains. undefined, may pass over any part of the land, in the course least prejudicial to the owner, and passable with reasonable convenience. But it is the right of the owner of the land to designate the particular course of such way; and he is bound to designate a convenient course. If he neglects so to do, the other party may select the tract for himself.1 (a) And if the way of necessity results from successive levies of executions upon the debtor's land, the land taken by the creditor, whose levy creates the necessity, must be burdened with the easement.2

§ 659. Proof of right. The proof of a private way must correspond with the description, whether it be in the declaration in an action for disturbance of the right, or in a special plea in trespass. Evidence of user of a right of way for all manner of carriages is not sufficient to support an allegation of such right for all manner of cattle, though it is admissible under that issue; nor does evidence of a user of a way with horses, carts, and carriages for certain purposes, necessarily prove a right of way for all purposes.3 But the allegation of a footway is supported by evidence of a carriage-way; and the allegation of a private way is supported by evidence of a public way; for in these cases the latter includes the former. The extent of the right is a question for the jury, under all the circumstances proved. But a user for all the purposes for which the party had occasion is evidence of a general right of way. (b) The termini of the way are also material to be proved

1 Holmes v. Seeley, 19 Wend. 507; Russell v. Jackson, 2 Pick. 574; Capers v. Wilson, 3 McCord, 170.

2 Russell v. Jackson, 2 Pick. 574, 578. And see Pernam v. Weed, 2 Mass. 203; Taylor v. Townsend, 8 Mass. 411; Collins v. Prentice, 15 Conn. 39, 423; Farnam v. Platt, 8 Pick. 339.

8 Ballard v. Dyson, 1 Taunt. 279; Cowling v. Higginson, 4 M. & W. 245. And see Brunton v. Hall, 1 Ad. & El. N. s. 792; Higham v. Rabett, 3 Jur. 588; s. c. 5 Bing. N. C. 622; French v. Marstin, 4 Foster (N. H.), 440.

4 Davies v. Stephens, 7 C. & P. 570, per Ld. Denman; Brownlow v. Tomlinson, 1 Man. & Gr. 484.

5 Cowling v. Higginson, 4 M. & W. 245; Allan v. Gomme, 11 Ad. & El. 759. See supra, §§ 544, 545. If the proof is of a use, common to all others, as well as to the

(a) If a certain route across the grantor's land is used by the grantee as a way of necessity and the grantor does not object to such use, this is evidence of an establishment of the location of the way of necessity. Bass v. Edwards, 126 Mass. 445. If there is but one route along which such a right of way can be exercised, and this is actually so used, it is a location of

the way. Gerrish v. Shattuck, 128 Mass. 571. If the owner of the servient estate obstructs a way of necessity, the owner of the dominant estate may deviate from the way so obstructed and go over other parts of the land, doing no unnecessary damage. Farnum v. Platt, 8 Pick. (Mass.) 339.

(b) Where a right of way is acquired by adverse possession, proof that it was used

[PART IV.

as alleged; for, if the proof stops short of either, it is fatal, unless the pleadings are amended.1 But the words "towards and unto" do not necessarily bind the party to the proof of a straight road; nor is it a fatal variance, if it appear that the way, in its course, passes over an intermediate close of the party himself who claims it.3

§ 659 a. Way appurtenant. Where a private way is claimed by virtue of a conveyance of land, and as appurtenant to the same, evidence aliunde, by parol or otherwise, may be given to prove that a particular way was then in use by the grantor; in which case it passed as parcel of the estate conveyed.* (a)

party claiming the way, it does not establish a private way. Prince v. Wilbourne, 1 Rich. 58.

1 See ante, vol. i. §§ 58, 62, 63, 71, 72; Wright v. Rattray, 1 East, 377.

2 Rex v. Marchioness of Downshire, 4 Ad. & El. 232.

3 Jackson v. Shillito, cited 1 East, 381, 382. See Simpson v. Lewthwaite, 3 B. & Ad. 226.

4 Atkins v. Boardman, 2 Met. 457, 464; White v. Crawford, 10 Mass. 183; United States v. Appleton, 1 Sumn. 492, 501, 502; Staples v. Hayden, 6 Mod. 4; Kent v. Waite, 10 Pick. 138.

for a variety of purposes, covering every purpose required 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 reasonably be required for the use of that estate while in substantially the same condition. Ballard v. Dyson, 1 Taunt. 279; Williams v. James, L. R. 2 C. P. 577. But, if the condition and character of the dominant estate are substantially altered, as in the case of a way to carry off wood from wild land, upon which a manufactory is after wards established, the right of way cannot be used for new purposes, imposing a greater burden upon the servient tenement. Atwater v. Bodfish, 11 Gray (Mass.), 150; Parks v. Bishop, 120 Mass. 340. it is used for a different purpose, though no And if injury is inflicted, the owner of the servient tenement may have nominal damages to vindicate his right. Appleton v. Fullerton, 1 Gray (Mass.), 186, 192, 194; Atkins v. Boardman, 2 Met. (Mass.) 467.

(a) A right of way appurtenant to land passes by a deed of the land, without express mention of such right, or of privileges and appurtenances. Brown v. Thissell, 6 Cush. (Mass.) 254; Underwood v. Carney, 1 Id. 285; Pratt v. Sanger, 4 Gray (Mass.), 84, 88. A way granted as appurtenant is appurtenant to every part of the close, and parol evidence is inadmissible to limit the right to a particular

part. Miller v. Washburn, 117 Mass. 371; Walker v. Gerhard, 9 Phila. (Pa.) 116.

ion whether an apparent and continuous There has been great diversity of opineasement, which the grantor used before estate, will pass as appurtenant to the severance of the dominant and servient when a separation occurs by sale by the dominant estate without special mention, owner. stated that, " In Gale on Easements, the rule is heritage, a grant will be implied first of 'upon the severance of an those continuous and apparent easements which have been in fact used by the owner during the unity, and which are necessary for the use of the tenement conveyed, though they have no legal existence as easements, and secondly of all those easeseveral portions could not be had at all.' ments without which the enjoyment of the This principle has been held not to apply to rights of way. 301; Felters v. Humphreys, 19 N. J. Eq. Oliver v. Hook, 47 Md. But in many States, on the other hand, it 471; O'Rorke v. Smith, 11 R. I. 259. and permanently established on one part has been held that ways which are visibly upon a severance of the estate, pass as imof an estate for the benefit of another, will, plied or constructive easements, appurte benefit of which they were established. nant to the part of the estate, for the Cannon v. Boyd, 73 Pa. St. 179; Kieffer v. Imhoff, 26 Pa. St. 438; Thompson v.