pose he pleases in the way of reasonable enjoyment, so that he does not substantially injure the quantity or quality of that which flows onward to the lands of others (g). The right, however, exists only in reference to water flowing on the surface, and not to any underground flow of water. An owner of land in which there is a well supplied by a subterranean flow of water, cannot complain of his well being drained through the operations of a neighbouring mine owner (h). The other case of a right of water is where a stream of water runs through an artificial course (i). This right *may be subdivided into two sorts: the right to receive and the right to discharge the water. The latter

(g) Mason v. Hill, 5 B. & Ad. 1; Wright v. Howard, 1 S. & S. 190; Embrey v. Owen, 6 Exch. 353. See as to the right of widening and scouring a channel, Peter v. Daniel, 5 Č. B. 568, s. c. 5 Dowl. & L. P. C. 501.

[*39]

Dig. lib. 39, tit. 3; and as to water soaking through marshy ground, Broadbent v. Ramsbotham, 11 Exch. 602; Rawstron v. Taylor, Ib. 369.

(i) See the distinction drawn in Arkwright v. Gell, 5 M. & W. 203; and see Stafford shire, &c., Canal Navigation v. Birmingham Canal Navigation, L. R. 1 H. L. E. & I. App. 254, and Greatrex v. Hayward,8 Exch. 291.

(h) Acton v. Blundell, 12 M. & W. 324; Hammond v. Hall, 10 Sim. 551; Chasemore v. Richards, 2 H. & N. 168, s. c. 7 H. L. 349; Dickinson v. Grand Junction Canal, 7 Exch. 282. See as to the Roman law on the points, owners, is actionable. Merrifield v. Lombard, 13 Allen (Mass.), 16; Howell v. McCoy, 3 Rawle, 256; Carhart v. Auburn Gas Light Co., 22 Barb. 297, 312; Holsman v. Boiling Springs, etc., Co., 1 McCarter (N. J.), 335.

The rule is the same in relation to polluting the water of a well by placing noxious matter in close proximity to it, so that it is washed by rains or soaks into the well. Brown v. Illius, 25 Conn. 583; Norton v. Scholefield, 9 Mees. & Wels. 665; Clark v. Lawrence, 6 Jones' Eq. (N. C.) 783.

Where large numbers of persons are mining on a small stream, and each deteriorates the water a little, so that their combined acts render the water utterly unfit for further use,, an action lies, and it will not be a defense by each person that his act alone did not materi ally injure the water. Hill v. Smith, 32 Cal. 166.

The non-joinder of others who contributed to the injury is not material, except upon the question of damages. Wheeler v. Worcester, 10 Allen (Mass.), 591.

In the use of a stream the owner must not cause the water to flow or set back upon the lands of the owners above, nor to the injury of mills or factories situated above. Stiles v. Hooker, 7 Cow. 266; Munroe v. Gates, 48 Me. 463; Butz v. Ihrie, 1 Rawle, 218; Gilman v. Tilton, 5 N. H. 232.

No action lies for turning mere surface water from one man's land upon those of another while lawfully improving and using his own land. Greeley v. Maine Central R. R. Co., 53 Me. 200; Bowlsby v. Speer, 2 Vroom (N. J.), 351; Gannon v. Hugadon, 10 Allen (Mass.), 106; Goodale v. Tuttle, 29 N. Y. (2 Tiff.) 459. But it has been held that water which accumulates in swamps and low grounds cannot be lawfully turned upon the lands of another by means of a drain or cut made for that purpose. Dickinson v. Worcester, 7 Allen (Mass.), 19; Butler v. Peck, 16 Ohio St. 334.

But such owner may prevent surface water from flowing upon his lands by erecting barriers or changing the level of his soil. Gannon v. Hagadon, 10 Allen (Mass.), 106. If one in the lawful use of his land, as by digging a ditch, or a well, or by opening a quarry or the like, intercepts or interrupts the flow of an underground current of water, to the injury of another, no action lies. Ellis v. Duncan, 21 Barb. 230; Village of Delhi v. Youmans, 45 N. Y. (6 Hand) 362; 50 Barb. 316; Haldeman v. Bruckhart, 45 Penn. St. 514; Brown v. Illius, 27 Conn. 84. A railroad company has a right to drain the surface water from its lands through ditches dug therein into a stream which is the natural outlet, although the quantity of water in the stream is increased in time of high water and diminished at other times to the damage of a riparian proprietor below. Waffle v. New York Central R. R. Co., 3 N. Y. (8 Sick.) 11.

Where a stream breaks away from its channel and inundates the lands of a person, he may legally turn the stream back into its old channel; but while preventing the inundation of his own land, he has no right to cause the water to flow upon the lands of another person, except in the old channel of the stream. Tuthill v. Scott, 43 Vt. 525.

is the one more easily acquired otherwise than by contract, because, if a man make an artificial watercourse upon his own lands, presumably it is for his own benefit and not that of his neighbour, and he cannot be compelled to continue it after it ceases to be beneficial to him (k). On the other hand, if he makes a watercourse for his own purposes which runs into his neighbour's land, he is obviously doing that which is an infringement of his neighbour's property: this infringement may by prescription at length be legalised so as to become a right over that land if suffered to continue without interruption (7), though, of course, until then his neighbour may at any time block up the watercourse, and so put an end to the infringement.

It seems that by allowing without active interference contamination or diminution of quantity on the part of those from whose lands the water runs, to continue for a period sufficient to create an easement by prescription, the right to the flow of water in its natural purity and quantity may be prejudiced or destroyed, at least to the extent of the contamination and diminution which has existed (m): but beyond this it is not necessary to exercise * such rights as arise ex rei naturâ in order to preserve them (n). It need hardly be [*40] mentioned that where there is a natural stream of water, the owner of land through which it passes has a right to insist upon its being allowed to flow from his land to that of the next proprietor below him.

air.

The right to light and air is the right to enjoy the free passage laterally of light and air from a neighbour's land. It is obvious that the light which falls Right of light and vertically from the sky cannot form the subject of an easement, as it necessarily must be enjoyed by the owner of the land, upon 'the maxim cujus est solum, ejus est usque ad cœlum et inferos. This easement is one which at first sight may seem to have a similar character in regard to its having a natural origin, as the right of water; it is, however, not so, because the first right which the ownership of land seems to give is that of doing what the owner pleases thereon, either by building or otherwise; and therefore he has, by virtue of such primary right, the power of obstructing the free passage of light and air from over his own land to that of his neighbour; if, then, his neighbour is in any way entitled to have such passage of light and air free from obstruction, it is no inconsiderable interference with or abridgment of the dominion which a man usually possesses over his land. Inasmuch, however, as it would be productive of injurious results in many cases, where men have built houses or other buildings upon or near to the extremities of their lands, having windows opening towards the neighbouring land, if it were lawful for

(k) Wood v. Waud, 3 Exch. 748; Arkwright v. Gell, 5 M. & W. 203; but there is no absolute impediment to the acquisition of such an easement. See Beaston v. Weate, 5 E. & B. 986.

(1) Saunders v. Newman, 1 B. & Al. 258; Wright v. Williams, 1 M. & W. 77: Lady Brown's case, Palm. 446; Thomas v. Thomas, 2 Cr. M. & R. 34; a case of water dropping from eaves upon the ground of a neighbour, what the Romans called stillicidium. See Elliot v. North Eastern Railway Co., 10 H. L. 333.

(m) See Wood v. Waud, 3 Exch. 748; Murgatroyd v. Robinson, 7 E. & B. 391; Stockport Waterworks v. Potter, 3 H. & C. 300, s. c. 31

L. J. Exch. 9; Goldsmid v. Tunbridge Wells Commissioners, L. R. 1 Ch. 349; Nuttall v. Bracewell, L. R. 2 Ex. 1; Sampson v. Hoddi nott, 1 C. B. N. S. 590; Dudley Canal v. Grazebrook, 1 B. & Ald. 59; Crossley v. Lightowler, L. R. 2 Ch. 479; Carlyon v. Lovering, 1 H. & N. 784. Where, however, a person has thus acquired as against other proprietors below him to use the water to their prejudice, such acquired right gives no right as against proprietors above; Sampson v. Hoddi nott, ubi sup.

(n) Sampson v. Hoddinott, 1 C. B. N. S. 590; Embrey v. Owen, 6 Exch. 353; Bickett v. Morris, L. R. 1 H. L. S. C. 47.

their neighbours to obstruct the light and air coming to those windows, the law recognises the right to prevent such obstruction when duly acquired as a proper *easement. Such an easement may of course, though it rarely [* 41] happens, be acquired by express grant, and in that case may be unlimited. But where, as is generally the case, the right is acquired by prescription (0), i. e., by user, which user must be by a building (p), it follows that the extent of light and air must depend upon the amount which has been enjoyed during the period which has gained the prescriptive right (g), and is limited to that which is necessary for the ordinary occupation and use of the building in respect of which the claim is made (r), regard being had to the general character and situation of such building. (209)

The law, of course, permits a man at any time before the prescribed period has expired to do any act, such as building or placing any other obstruction on his own land to prevent the user of light and air, and thereby to prevent the acquisition of an easement (s). It may be here remarked that the law does not recognise the enjoyment of a prospect as a right which can be acquired otherwise than by grant or covenant (t), and it is very doubtful whether it can even be so acquired as an easement, whether any grant or covenant could do more than create a personal obligation between the parties not attaching as an easement either to the house where the prospect is enjoyed, or the land over which the prospect is seen. So also the right to a current of wind for the *purpose of working a windmill cannot be claimed as an easement [*42] under the Prescription Act (u).

The right to light and air being the easement which most frequently leads to litigation, this may be a suitable place to notice briefly the remedies which the Remedies law provides for the infringement of such rights. The redress afforded by law which common law provides is that of damages, or a payment of such an amount of money as shall in the opinion of the jury be a reasonable equivalent of the injury done. In estimating these damages, it would seem now that a jury would be bound to take into account "the nature and locality

(0) The legislature in the Prescription Act, 2 & 3 Will. 4, c. 71, has somewhat favoured the acquisition of the right to light more than that of any other easement, see sect. 3, which fixes the period of twenty years' enjoyment without interruption as sufficient in all cases where such user is not licensed by word or writing.

(p) Roberts v. Mecord, 1 Moo. & Rob. 230. (q) Martin v. Goble, 1 Camp. 322; Roberts v. Macord, 1 Moo. & Rob. 230.

(r) See Clarke v. Clark, L. R. 1 Ch. 16. (8) Chandler v. Thompson, 3 Camp. 82; Moore v. Rawson, 3 B. & C. 340.

(t) Fishmongers' Co. v. East India Co., 1 Dick. 163; A.-G. v. Doughty, 2 Ves. S. 453. (u) Webb v. Bird, 31 L. J. C. P. 335. The contrary seems formerly to have been thought the law. 2 Roll. Abr. p. 704; 16 Vin Abr. tit. Nuisance, G. pl. 19; Treherne's case, Godb. 233; but though the judgment in the above case was merely upon 2 & 3 Will. 4, c. 71, s, 2, deciding that such a claim was not within the words "any way or other easement, or to any watercourse, or to the use of any water to be enjoyed, &c.," yet it is conceived that a claim to wind or an easement could not be made in any other way.

(209) In this country the general rule is that there can be no prescriptive right as to light and air. Mullen v. Stricker, 19 Ohio St. 135; Ward v. Neal, 37 Ala. 501; Myers v. Gemmel, 10 Barb. 537; Rogers v. Sawin, 10 Gray (Mass.), 376; Carrig v. Dee, 14 id. 583; Cherry v. Stein, 11 Md. 23; Hubbard v. Town, 33 Vt. 295; Haverstick v. Sipe, 33 Penn. St. 368; Parker v. Foote, 19 Wend. 309; Pierre v. Fernald, 26 Me. 436; Napier v. Buiwinkle, 5 Rich. 311, and numerous other cases.

The cases sustaining the English rule as to prescriptive rights to light and air are, Gerber v. Grabel, 16 Ill. 217; Robeson v. Pittenger, 1 Green's Ch. (N. J.), 57, 64; Durel v. Boisblanc, 1 La. Ann. 407,

VOL. I. -57

of the windows, the supply of light to which has been interfered with. Persons who live in towns, and more especially in large cities, cannot expect to have continually the same unobstructed volumes of light and air which fall to the lot of those who live in the country. The steady spread of buildings in and round large towns gradually, but surely, obstructs some of the light and air which the houses in the interior of the place formerly enjoyed" (x). Also, in calculating such damages the present injury alone ought to be considered, and the future possible uses to which the building might be put if the light and air had not been affected, ought to be disregarded (y).

In addition, however, to the remedy of damages which the court of

[*43] law afford, the court of chancery affords a means of obtaining relief by

and equity.

restoration of the state of things existing before the obstruction had been erected. It is not in every case of this kind in which an action may be maintained that a court of equity will grant an injunction; something more is required; the case must be one in which there is a material injury to the comfort of the inhabitants of the building which has suffered the damage (z).

The right of way is the right of going over another man's ground. (210)

(x) Per Lord Cranworth in Clarke v. Clark, L. R. 1 Ch. 16.

(y) Jackson v. Duke of Newcastle, 33 L. J. Ch. 698. See as to damages the following cases at law, Back v. Stacey, 2 Carr. & P. 465; Parker v. Smith, 5 Carr. & P. 438; Pringle v. Wernham, 7 Carr. & P. 377; Wells v. Ody, Ib. 410.

(2) Fishmongers' Co. v. I. I. Co, 1 Dick.

163; A.-G. v. Nichol, 16 Ves. 342; Jackson v. Duke of Newcastle, 33 L. J. Ch. 698, s. c. 4 N. R. 448. Under 21 & 22 Vict. c. 27, the Court of Chancery now has the power in those cases where it has jurisdiction to grant an injunction of assessing damages as well as or in lieu of granting an injunction. See Johnson v. Wyatt, 2 De G. J. & S. 18.

(210) The text relates to private ways alone. A brief notice of public ways may be of use in this connection. In this country public highways are established by a dedication of the land by the owner for the public use, or it is taken under the authority of the State by an exercise of the right of eminent domain. In most, and probably in all of the States, there are statutes relating to this subject, and they usually provide for the manner of determining the necessity for taking lands for highways, and for the payment of a proper compensation to the land owners. Statutes which authorize the taking of land for public highways, upon the payment of a fair price, are constitutional, as has been held in numerous cases. A dedication of land is an appropriation of it to some public use, made by the owner, and accepted by the public. An express dedication is one made by deed, vote or declaration ; an implied dedication is one that is presumed from an acquiescence in the public use. No particular formality is required; for any act or declaration, whether written or oral, which clearly expresses an intention to dedicate, will amount to a dedication, if accepted by the public, and will conclude the donor from ever after asserting any right incompatible with the public use. Hawley v. Baltimore, 33 Md. 270; Trickey v. Schlader, 52 Ill. 78; Pope v. Town of Union, 3 C. E. Green (N. J.), 282; Missouri Institute, etc., for Blind v. How, 27 Mo. 211; Haynes v. Thomas, 7 Ind. 38; Mayor, etc., of Macon v. Franklin, 12 Ga. 239.

And even where there is no express appropriation by the owner, a dedication may be presumed from a public use of the land. Louk v. Woods, 15 Ill. 256; Hughes v. Providence & Worcester R. R. Co., 2 R. I. 493; Holt v. Sargent, 15 Gray (Mass.), 97; Onstott v. Murray, 22 Iowa, 457; Devenpeck v. Lambert, 44 Barb. 596; Holcraft v. King, 25 Ind. 352; Parrish v. Stevens, 1 Oregon, 59; Lewiston v. Proctor, 27 Ill. 414; Lemon v. Hayden, 13 Miss. 159; Campton's Petition, 41 N. H. 197.

A dedication is incomplete and does not bind the public unless they accept such dedication. Pope v. Town of Union, 3 C. E. Green (N. J.), 282; Muzzey v. Davis, 54 Me. 361; Dodge v. Stacy, 39 Vt. 558; Gentleman v. Soule, 32 Ill. 271.

The acceptance need not be express and in terms, but may be inferred and established by the use of the property dedicated; and such acceptance will be presumed when the acts of

It may be divided into several kinds, according to the limitation which may govern the enjoyment. Thus it may be limited to passage on foot or on horseback, but not in carriages; or it may be limited to particular kinds of vehicles, and for special purposes (a). Like other easements, it is limited to the requirements of the dominant tenement to the

Right of way.

(a) Jackson v. Stacey, Holt's N. P. 455; Knight v. Woore, cited 5 Bing N. C. 625;

Iveson v. Moore, Ld. Raym. 486; M. of Stafford v. Coyney, 7 B. & C. 257.

the public in using the land are such as are in harmony with the dedication, and are such as would occur in cases of acceptance. Barteau v. West, 23 Wis. 416; Buchanan v. Curtis, 25 id. 99; Manderschid v. Dubuque, 29 Iowa, 73; Beach v. Frankenberger, 4 W. Va. 712; Pickett v. Brown, 18 La. Ann. 560; Rees v. Chicago, 38 Ill. 322; State v. Atherton, 16 N. H. 203; Stevens v. Nashua, 46 id. 192; Day v. Allender, 22 Md. 511: New Orleans, etc., R. R. Co. v. Moye, 39 Miss. 374; Cole v. Sproul, 35 Me. 161; Curtiss v. Hoyt, 19 Conn. 154; Remington v. Millerd, 1 R. I. 93; State v. Carver, 5 Strobh. 217.

Turnpikes and plank-roads are public highways. Craig v. People, 47 Ill. 487; Benedict v. Goit, 3 Barb. 459; Commonwealth v. Wilkinson, 16 Pick. 175; Plank-road Co. v. Thomas, 20 Penn. St. 91; Chagrin Falls, etc., P. R. Co. v. Cane, 2 Ohio St. 419.

A right of way is frequently created or given by deed, and the right may be granted separately, or as appendant or appurtenant to an estate which is conveyed. So a right of way may be created by a reservation in a deed which conveys land, or by a devise. A right of way, which is devised in express terms, is appurtenant to the dominant estate, and passes by a conveyance of such estate without express mention of the appurtenances. Lide v. Hadley, 36 Ala. 627. A right of way which is appurtenant or annexed to an estate passes with a conveyance of the estate. And when a right of way is appurtenant to land it is appurtenant to the whole of it; and if the land be divided, and conveyed in separate parcels, a right of way thereby passes to each grantee. Underwood v. Carney, 1 Cush. (Mass.) 285. So, where the owner of a block in a city makes a partition of it among several persons, and in each deed makes an alley running through the block the boundary of the lots, each proprietor becomes entitled to a private right of way in the alley. Carlin v. Paul, 11 Mo. 32.

A right of way reserved by a grantor is an easement in gross, which is a mere personal right, and cannot be granted to another. Garrison v. Rudd, 19 Ill. 558.

A private way may be established by prescription; and if a person has used a way over the land of another for twenty years, it will be presumed that the use had its origin in a grant, if the following things concur: 1. The use must have been definite, both as to manner and as to locality. 2. It must have continued for the whole period without interruption. 3. It must have been accompanied by a claim of right adverse to the owner of the land, and not have been under leave and license of the owner; for if the claim has been in subordination to the right of the owner, a grant could not be presumed, since that would be inconsistent with the claim. Sibley v. Ellis, 11 Gray (Mass.), 417; Peirce v. Cloud, 42 Penn. St. 102; Bannon v. Angier, 2 Allen (Mass.), 128; Hall v. McLeod, 2 Metc. (Ky.) 98; Johnson v. Stayton, 5 Harr. (Del.) 448; Garrett v. Jackson, 20 Penn. St. 331; Finch v. Marstin, 24 N. H. 440; Pierce v. Selleck, 18 Conn. 321; Golding v. Williams, Dudley's S. C. 92; Watt v. Trapp, 2 Rich. (S. C.) 136.

A way of necessity exists where land is granted which is either wholly surrounded by land of the grantor, or partially by such land, and elsewhere by land of strangers. In such a case if there be no other way to the land, the law presumes that it was the intention of the parties that the grantee should have access to it over the land of the grantor, and he has a way across such last-mentioned land in order to make his grant available. Brown v. Berry, 6 Coldw. (Tenn.) 98; Thomas v. Bertram, 4 Bush (Ky.), 317; Pettingill v. Porter, 8 Allen (Mass.), 1; Wissler v. Hershey, 23 Penn. St. 333; McTavish v. Carroll, 7 Md. 352; Kimball v. Cocheco R. R. Co., 27 N. H. 448; Simmons v. Sines, 4 Keyes, 153.

If the grantee of land has a way of access to the land granted, without crossing the grantor's land, a way of necessity will not exist. Screven v. Gregorie, 8 Rich. (S. C.)