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It gives the public merely what may be called an easement for the specified purposes, leaving ownership and possession of the land unchanged. Statutory dedication in some states passes the fee.

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§ 51. Railways. Railroads sometimes own the land over which their right of way runs, but more frequently, they have merely a right of passage, for railway purposes-that is, an easement over it. When a railroad has merely an easement for its right of way, whosoever is owner of the land, generally one of the abutting owners, has technical possession of the land covered by the easement and a right to use it for any purposes which will not interfere with reasonable railway uses. instance, he may cultivate such part of the land between the railway fences as is not covered by tracks or structures or put to any other easement use by the railway company. Generally, however, the railroad uses are such as practically to exclude all use by the possessor of the land, except sometimes drainage; but the landpossessor has still the very important right to restrict the railroad company to reasonable railroad uses. Any other use of the land on the part of the company would be a wrongful trespass against the land-possessor. Whenever the use for railway purposes is permanently abandoned, the land-possessor holds the land free from the easement which is extinguished.

Unless by charter or statute, a railroad company or any other private corporation or person having eminent domain rights, can not usually acquire by condemnation any more than a profit a prendre or an easement over

land, if one of these incorporeal rights is reasonably sufficient for its or his purposes. Therefore, if a railroad company wishes to own the ground over which its tracks are to run, it must frequently obtain it by some other means than through exercise of its eminent domain rights.

§ 52. Private ways. Sometimes a land-possessor requires other means of access to his land than are afforded by public ways; especially is this true in the country. The necessary additional road or path may be obtained through a grant of a private right of passage over his neighbors' land; or a prescriptive user may have ripened into a right for such a way. However it is obtained, the easement will have certain limitations which must be regarded by its owner. The way will be over a more or less clearly defined course which must be followed. Likewise, it must be used only for the purposes for which the easement was created. If A has a right to drive cattle over B's ground to Blackacre and drives his beasts to Whiteacre lying beyond Blackacre, he is a trespasser, because his easement did not entitle him to use the way for the purpose of getting to any other place than Blackacre (16). That the way terminates at a highway will not necessarily entitle the owner of the easement to go wherever he pleases after reaching the highway. If the highway is the destination contemplated in the creation of the easement, he may do so; but if the destination is a particular spot beyond the highway, as for instance lot X, or a particular place to which the highway leads, for instance a market place, the private way can legitimately

(16) Howell v. King, 1 Mod. 190.

be used only to get in the one case to lot X, and in the other case to the market place as a destination. In these cases, if the owner of the way goes first to the proper destination of the easement, and, having finished his business there, goes elsewhere along the highway, there is no trespass, since the way has been used for a proper and accomplished purpose.

If there is an easement of way appurtenant to Nineacre field over the land of Williams to a public highway, and James, who possesses both Nineacre field and Parrott's land adjoining, mows both pieces of property and carts the hay from them over Williams' land to the highway, he is a trespasser when he carries hay from Parrott's land because the easement can rightfully be used only for the purposes of Nineacre field. However, if James stacks all the hay on Nineacre field and later, deciding to take it to market, carts it over the private way to the highway, he does not exceed his rights. The use in this case is bona fide in connection with Nineacre field and not with Parrott's land (17).

§ 53. Same: Increased needs of dominant tenement. Improvements. A way granted as appurtenant to a certain piece of farming land may or may not legally be usable for the purposes of the land after it becomes part of a thickly settled town. It must be determined from the terms of the instrument of creation, interpreted in the light of the circumstances under which it was made, whether only present needs or also remotely prospective increased needs of the dominant tenement were within

(17) Williams v. James, L. R. 2 C. P. 577.

the scope of the easement. Ordinarily a way acquired by prescription for general purposes will be good for all future needs of the dominant tenement.

The owner of the way may make any improvements, such as grading and paving, as are customarily deemed necessary for a way of the type to which he is entitled. The owner of a driveway from his pasture to his farm over an intervening field of another probably could not legally build a macadamized road against the objection of the servient owner. On the other hand, the owner of a roadway for general purposes to a country home might pave it if he so chose (18).

§ 54. Passageways. An easement of passageway through a part of a building is a very common type of easement. When a portion of a building is owned or held under a lease, generally there is such an easement for access, egress, and sometimes other purposes through another part of the building, created expressly or impliedly by the grant or lease.

§ 55. Easements of lateral and subjacent support. Rights of support from land and buildings of another, in addition to the natural right of lateral and subjacent support discussed in the preceding chapter (§§ 4-9), may be acquired as easements. If a building is owned by different persons, each owning one or more floors, as is the case with many of the large apartment buildings in New York city, the owner of one part has a right to insist that the support and protection from the weather afforded by other portions of the building be not withdrawn. He

(18) Newcomen v. Coulson, 5 Ch. Div. 133.

can not legally compel the owners of the other parts to make repairs necessary to maintain the structure, in the absence of some collateral special obligation or charge binding them or their interests in the building. Only active interference with the support is prohibited by the right.

If the land on which the building stands is owned and possessed by one person and the building by another, the possessor of the building legally can prevent any interference with the foundations or stability of the building through operations on the land by the land-possessor or others. These rights of support are easements, created expressly or impliedly by the conveyance or conveyances through which there came about diversified ownership in the one case of the buildings, and in the other, of the land and building. A right to insist that excavations in neighboring ground, which will cause damage to the buildings on the land of the owner of the right, shall not be made may be acquired as an easement.

§ 56. Party walls. Party walls are the objects of easements of support of a most important kind. In cities, frequently buildings on adjoining lots will have a common wall running along the division line. Sometimes this wall stands wholly on one of the two parcels of land, and sometimes partly on each parcel. Generally, easements will exist in such a wall and the land on which it stands, created by some grant or agreement between the owners of the respective lots or some of their predecessors in title. If, in such a case, the wall stands wholly on the land of B, generally he owns the wall and A has only an

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