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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 (6) 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. (c) But it is no defence to

1 Findlay v. Smith, 6 Munf. 134 ; Jackson v. Brownson, 7 Johns. 227, 233; Park. ins 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 Johus. 227, 233.
3 Ibid. See Simmons v. Norton, 7 Bing. 640 ; 8. c. 5 Moore & P. 645.

(a) “It is apprehended, that a more in cold weather keep a separate fire, does liberal rule is now applied in respect to not of itself prove an unreasonable use. constructive acts of waste in England than Smith v. Jewett, 40 N. H. 530. formerly, and there certainly is a much more (6) The tenant for lite has a right to liberal construction put upon such acts in work open mines (Reed v. Reed, 1 C. E. this country than that of the cominon law. Green (N. J.), 248), but not to open The proper test in all these cases seems to mines that have never been opened before be, Does the act essentially injure the in- he came into possession, or that have been heritance as it will come to the reversioner? abandoned before he came into possession and this is a question for the jury.” 1 (Viner v. Vaughan, 2 Beav. 466 ; Gaines v. Washburn on Real Property, 146.

Green, &c. Co., 32 N. J. Eq. 86). Yet if In this country, no act of a tenant a mine has only been temporarily abanamounts to waste, unless it is, or may be, doned, for want of a market, he may work prejudicial to the inheritance, or to those the mine. Bagot v. Bagot, 32 Beav. 509 ; who are entitled to the reversion or remain. Legge v. Legge, Ib. 515. der. Pynchon v. Stearns, 11 Met. (Mass.) (c) In England, it is waste if a tenant 304. See also Crockett v. Crockett, 2 Ohio cuts down trees and sells them in order to St. 180; McCullough v. Irvine, 13 Pa. St. get money to make repairs which he is 438 ; Clemence v. Šteere, 1 R. I. 272. As obliged to make. Bac. Abr. Waste, F. 1, incident to an estate for life, the wife may Co. Lit. 53 b. In America, this doctrine rightfully take from the land a reasonable has been modified by the sound sense of amount of fuel for the supply of herself Judge Story in Loomis v. Wilbur, 5 Mason, and family, upon the farm, including the C. C. 13, where he holds this not to be persons employed to cultivate it ; and the waste if it is the most economical way of fact that such persons are paid by a share making repairs, and most for the benefit of of the crops, as tenants at the halves, and 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.' (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 tures, put in by a lessee under a special waste to sell timber of land to make im- agreement in writing as to his right to provements which the tenant is not bound remove, and the lessor's right to purchase to make, and he cannot justify it on the them, the lessor's remedy is by action on ground that the benefit to the estate com- the agreement, and not on the covenant pensates for the injury. Miller v. Shields, against waste in the lease. Where there 55 Ind. 71 ; Clark v. Cummings, 5 Barb. is a special agreement between landlord (N. Y.) 339 ; Sohier v. Eldredge, 103 and tenant regarding fixtures, it overrules Mass. 341, p. 351 ; Smith v. Jewett, 40 and supersedes the general rules of law N. H. 530. Thus, where a tenant of a regulating their mutual rights and obligafarm rebuilt a barn which had been struck tions. Naylor v. Collinge, 1 Taunt. 19; by lightning and burnt, it was held that Thresher v. East London Waterworks, 2 she could not cut and sell timber, to reim. B. & C. 608, and 4 D. & R. 62; Amos & burse herself for the expense of rebuilding. Ferard on Fixt. *108, 109; Wall v. Hinds, Miller v. Shields, supra.

Gray, 256, 273. (a) For an unauthorized removal of fix.


§ 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. (a) The nature of a prescription, whether for a right of way or other incorporeal franchise, has already been considered under that title.?

$ 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. (6) Where one has a way of

1 Nichols v. Luce, 24 Pick. 102 ; Woolrych on Ways, p. 72, n. (9); Gayetty 0. Bethune, 14 Mass. 49, 53.

3 Supra, SS 537-546.
8 Nichols v. Luce, 24 Pick. 102. And see Brice v. Randall, 7 Gill & J. 349.

(a) A right of way carries with it all to the land of the grantor. Bowen v. Con. rights to the use of the soil properly inci- ner, 6 Cush. (Mass.) 132; Cruise's Digest dent to the free exercise and enjoyment of (Greenleaf's ed. 1856), tit. xxiv. Ways, the right granted or reserved. The abut- vol. ii. pp. 25-35 (*85-*91). ters on such way have a right to make (6) Wissler v. Hershey, 23 Pa. St. 333; improvements therein, so as to make it Kimball v. Cocheco R. R. Co., 27 N. H. 448; more beneficial to themselves, without in- McTavish v. Carroll, 7 Md. 352. See also jury to the owners of the land, or others Hyde v. Jamaica, 27 Vt. 443. A right of having an equal right of way ; but they way by necessity can only arise by grant have not a right to use it for another and express or implied; it does not exist where distinct purpose, and it is for the jury in the title of the party is by escheat. Proctor any given case to determine whether the use v. Hodgson, 29 Eng. Law & Eq. 453. Nor complained of is for another and distinct does it exist where neither the party claimpurpose than that of a way. If it be used ing the way, nor the owner of the land for such other and distinct purpose, the over which it is claimed, nor their privies, owner of the land may have his action, al- was ever seised of both tracts of land. though he sustains no actual damage ; the Stewart v. Hartman, 46 Ind. 331. Where law permitting him to recover nominal land conveyed is wholly surrounded by damages to vindicate his right. Appleton land of the grantor, or partly by this and v. Fullerton, 1 Gray (Mass.), 186, 192, 194; partly by lands of strangers, a "way of Atkins v. Boardman, 2 Met. (Mass.). 467. necessity over the grantor's land passes Where a grantor conveys land, bounding it to the grantee by the conveyance withont on a street or way, he and his heirs are es- express mention, and will continue to be topped to deny that there is such a street or appurtenant to the land, so as to pass to way. It is an implied covenant of the ex. another. Taylor v. Warnaky, 55 Cal. 350; istence of such a way. Parker v. Smith, 17 Washburn, Easements & Servitudes, p. *163, Mass. 413 ; O'Linda v. Lothrop, 21 Pick. and cases there cited. This way of neces(Mass.) 292 ; Tufts v. Charlestown, 2 Gray sity is, however, extinguished when any (Mass.), 272. The grantor of land may other suitable approach to the land is procreate a right of way therein in his own vided. Oliver v. Hook, 47 Md. 301 ; Pomfavor, hy a reservation or exception thereof fret v. Ricroft, 1 Wms. Saunders, 323, n. in the grant, either in gross, or as annexed

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.' (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.8 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.. (6) 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, i Ad. & El. N. s. 792 ; Higham v. Rabett, 3 Jur. 588 ; 8. c. 5 Bing. N. C. 622 ; French v. Marstin, 4 Foster (N. H.), 440.

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

6 Cowling v. Higginson, 4 M. & W. 245; Allan v. Gomme, 11 Ad. & El. 759. See supra, SS 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 grant- the way. Gerrish v. Shattuck, 128 Mass. or's land is used by the grantee as a way 571. If the owner of the servient estate of necessity and the grantor does not obstructs a way of necessity, the owner of object to such use, this is evidence of an the dominant estate may deviate from the establishment of the location of the way way so obstructed and go over other parts of necessity. Bass v. Edwards, 126 Mass. of the land, doing no unnecessary damage. 445. If there is but one route along which Farnum v. Platt, 8 Pick. (Mass.) 339. such a right of way can be exercised, and (6) Where a right of way is acquired by this is actually so used, it is a location of adverse possession, proof that it was used

as alleged; for, if the proof stops short of either, it is fatal, unless the pleadings are amended. 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.

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 i 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 part. Miller v. Washburn, 117 Mass. 371; purpose required by the dominant estate, Walker v. Gerhard, 9 Phila. (Pa.) 116. in its then condition, is evidence from There has been great diversity of opinwhich may be inferred a right to use the ion whether an apparent and continuous way for all purposes which may reasonably easement, which the grantor used before be required for the use of that estate while severance of the dominant and servient in substantially the same condition. Bal. estate, will pass as appurtenaut to the lard v. Dyson, 1 Taunt. 279; Williams v. dominant estate without special mention, James, L. R. 2 C. P. 577. But, if the when a separation occurs by sale by the condition and character of the dominant

In Gale on Easements, the rule is estate are substantially altered, as in the stated that, “upon the severance of an case of a way to carry off wood from wild heritage, a grant will be implied first of land, upon which a manufactory is after those continuous and apparent easements wards established, the right of way cannot which have been in fact used by the owner be used for new purposes, imposing a great- during the unity, and which are necessary er burden upon the servient tenement. for the use of the tenement conveyed, Atwater v. Bodfish, 11 Gray (Mass.), 150 ; though they have no legal existence as Parks v. Bishop, 120 Mass. 340. And if easements, and secondly of all those easeit is used for a different purpose, though no ments without which the enjoyment of the injury is inflicted, the owner of the servient several portions could not be had at all." tenement may have nominal damages to This principle has been held not to apply vindicate his right. Appleton v. Fuller- to rights of way. Oliver v. Hook, 47 BIL. ton, 1 Gray (Mass.), 186, 192, 194; Atkins 301 ; Felters v. Humphreys, 19 N. J. Eq. v. Boardman, 2 Met. (Mass.) 467.

471; O'Rorke v. Smith, 11 R. I. 259. (a) A right of way appurtenant to land But in many States, on the other hand, it passes by a deed of the land, without ex. has been held that ways which are visibly press mention of such right, or of privi- and permanently established on one part leges and appurtenances.

Brown v. of an estate for the benefit of another, will, Thissell, 6 Cush. (Mass.) 254 ; Underwood upon a severance of the estate, pass as iniv. Carney, 1 Id. 285 ; Pratt v. Sanger, 4 plied or constructive easements, appurteGray (Mass.), 84, 88. A way granted as nant to the part of the estate, for the appurtenant is appurtenant to every part benefit of which they were established. of the close, and parol evidence is inadmis. Cannon v. Boyd, 73 Pa. St. 179; Kieffer sible to limit the right to a particular v. Imhoff, 26 På St. 438; Thompson e.

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