2, 3. Common of piscary is a liberty of fishing in another man's water; as common of turbary is a liberty of digging turf upon another's ground. (1) (49) There is also a common of digging for coals, minerals, stones, and the like. All these bear a resemblance to common of pasture in many respects: though in one point they go much further; common of pasture being only a right of feeding on the herbage and vesture of the soil, which renews annually; but common of turbary, and those aforementioned, are a right of carrying away the very soil itself.

*35] *4. Common of estovers or estouviers, (50) that is, necessaries, (from estoffer, to furnish,)(51) is a liberty of taking necessary wood, for the use or furniture of a house or farm, from off another's estate. (52) The Saxon word bote is used by us as synonymous to the French estovers: and therefore house-bote is a sufficient allowance of wood, to repair, or to burn in, the house: which latter is sometimes called fire-bote: plough-bote and cart-bote are wood to be employed in making and repairing all instruments of husbandry; and hay-bote, or hedge-bote, is wood for repairing of hay, hedges, or fences. These botes or estovers must be reasonable ones; and such any tenant or lessee may take off the land let or demised to him, without waiting

(1) Co. Litt. 122.

or burden on the land out of which common is to be taken. Therefore if the owner of the land entitled to common purchase a part of the land subject to common, the common shall be extinct; and vice versa. Where the right is extinguished or gone as to a portion of the land entitled to common, it is extinct as to the whole; for in such case common appurtenant cannot be extinct in part, and be in esse for part, by the act of the parties. Livingston v. Ten Broeck, 16 Johns. 14.-SHARSWOOD.

(49) Common of turbary can only be appendant or appurtenant to a house, not to lands, (Tyringham's case, 4 Rep. 37;) and the turf cut for fuel must be burned in the commoner's house, (Dean and Chapter of Ely v. Warren, 3 Atk. 189,) not sold. Valentine v. Penny, Noy, 145. So, it seems, an alleged custom for the tenants of the manor to be entitled to cut and carry away from the wastes therein an indefinite quantity of turf, covered with grass, fit for the pasturage of cattle, for the purpose of making and repairing grass-plots in their gardens, or other improvements and repairs of their customary tenements, cannot be supported. Wilson v. Willes, 7 East, 127.—CHITTY.

(50) The liberty which every tenant for life or years has, of common right, to take necessary estovers in the lands which he holds for such estate, seems to be confounded, in most of the text-books, with right of common of estovers. Yet they appear to be essentially different. The privilege of the tenant for life or years is an exclusive privilege, not a commonable right. Right of common of estovers seems properly to mean a right appendant or appurtenant to a messuage or tenement, to be exercised in lands not occupied by the holder of the tenement. Such a right may either be prescriptive, or it may arise from modern grant. Countess of Arundel v. Steere, Cro. Jac. 25. And though the grant be made to an individual for the repairs of his house, the right is not a personal one, but appurtenant to the house. Dean and Chapter of Windsor's case, 5 Rep. 25. Sir Henry Nevill's case, Plowd. 381. Such a grant is not destroyed by any alteration of the house to which the estovers are appurtenant, but it may be restricted within the limits originally intended, if the altered state of the premises would create a consumption of estovers greater than that contemplated when the grant was inade. Luttrel's case, 4 Rep. 87.

If a right of common of estovers of wood be granted, to be taken in a certain wood, the owner of which cuts down some of the wood, the grantee cannot take the wood so cut: even if the whole be cut down, he has no remedy but an action of covenant or on the case. Basset v. Maynard, Cro. Eliz. 820. Pomfret v. Ricroft, I Saund. 322. Douglass v. Kendal, Cro. Jac. 256; S. C. Yelv. 187; which last case illustrates the distinction between the exclusive right to the wood growing on certain land, and a right of common of estovers only. It is true that a single copyholder, or other tenant, and that one only, may be entitled to right of common of pasture, or estovers, or other profit in the land of the lord of the manor; but then the lord at least must participate in the right: if the tenant enjoyed the right solely, severally, and exclusively, it would be difficult, without a violent strain of language, to discover in such a right any commonable qualities. Foiston & Cracherode's case, 4 Rep. 32. North v. Coe, Vaugh. 256.-CHITTY.

(51) Cowel, Interp. (Estovers) derives the word from the French estouver, equivalent to fovere, to nourish or maintain. I Washburn on Real Property 134 n. (5 ed. 1887). (52) I Lomax's Digest of the Laws of Real Property, 513 (1839).

for any leave, assignment, or appointment of the lessor, unless he be restrained by special covenant to the contrary. (m)(53)

These several species of commons do all originally result from the same necessity as common of pasture; viz. for the maintenance and carrying on of husbandry; common of piscary being given for the sustenance of the tenant's family; common of turbary and fire-bote, for his fuel; and house-bote, plough-bote, cart-bote, and hedge-bote, for repairing his house, his instruments of tillage, and the necessary fences of his grounds. (54)

IV. A fourth species of incorporeal hereditaments is that of ways; or the right of going over another man's ground. (55) I speak not here of the king's highways, which lead from town to town; nor yet of common ways, leading from a village into the fields; but of private ways, in which a particular man may have an interest and a right, though another be owner of the soil. (56) This may be granted on a special permission; as when the owner of the land grants to another the liberty of passing over his grounds, to go to church, to market, or the like:(57) in which case the gift or grant is particular, and confined to the grantee alone: it dies with the person; and,

(m) Co. Litt. 41.

(53) Common of estovers cannot be apportioned; and, where a farm entitled to estovers is divided by the act of the parties among several tenants, neither of them can take estovers: the right to them is extinguished. But where common of estovers devolves upon several, by operation of law, though they cannot enjoy the right in severalty, yet they may, by uniting in a conveyance, vest the right in an individual. Van Rensellaer v. Radcliffe, 10 Wend. 639. Livingston v. Ketchum, 1 Barbour, 592.-SHARSWOOD.

Lawrence v. Hunter, 9 Watts, 64, 78 (Pa. 1839). Tiedeman on Real Property, sect. 592 (2 ed. 1892). Boone's Law of Real Property, sect. 36 (1883).

The right of a tenant for life extends no further than to cut dead wood for fuel in the house, and of timber for the making and repairing of all instruments of husbandry, and for the repair of houses and fences. Dickinson v. Jones, 36 Ga. 97,104 (1867).

(54) Landlord and Tenant in Pennsylvania (Jackson and Gross) 46, 47 (2 ed. 1884). Common of turbary cannot extend to a right to dig turf for sale. Wilson v. Willis, 7 East, 121.

A claim of a right to dig and carry away as much clay as required, in every year, and at all times of the year, for making bricks, is unreasonable. Clayton v. Corby; 1 D. & M. 449, 451 (Eng. 1843).

(55) Hart v. Chalker, 5 Day, 311, 315 (Conn. 1824). Taylor v. Navigation Co., 105 N. C. 484, 488 (1890). A right of way consists in a right to use the surface of the soil, for the purpose of passing and repassing, and the incidental right of properly fitting the surface for that use; but the owner of the soil has all the rights and benefits of ownership consistent with such easement. He is entitled to the herbage growing upon it. All which the person having the easement can lawfully claim is the use of the surface for passing and repassing, with a right to enter upon and prepare it for that use, by levelling, gravelling, ploughing or paving according to the nature of the way granted or reserved; that is, for a foot-way, a horse-way, or a way for all teams and carriages. Atkins v. Bordman, 2 Metc. 457, 467 (Mass. 1841).

(56) As to highways in general, see Com. Dig. tit. Chimin; Bac. Abr. Highways; Burn, J., Highways; Selw. N. P. Trespass, iv. 7; Saunders by Patterson, index, Ways; Bateman's Turnpike Acts; 3 Chitty's Crim. L. 565 to 668.

With respect to private ways, see in general Com. Dig. Chimin, D. Bac. Abr. Highways, C. Selw. N. P. Trespass, iv. 7. I Saunders by Patterson, 323, note 6, id. index, Ways.-CHITTY.

Private roads under the New Jersey statute, have no analogy to what are termed in law private ways, but are more analogous to the public highways or the common ways known to the common law. Perrine v. Farr, 2 Zab. 356, 362 (N. J. 1850).

(57) As a general rule, whatever is necessary to the reasonable use of a private way passes as an incident to the grant. It has been questioned how far the grant of a way for agricultural purposes is a general right of way. It seems, however, to be one of a limited and qualified character. It was held not to include the right to transport coals over such a way, nor to transport lime from a quarry. So the right to draw water from a river will not sustain a plea to draw goods and water, and a right to cart timber will not sustain a plea to a general right of way on foot, and with horses, carts, wagons, and other carriages. Washburn on Easements, 284 (4 ed. 1885).

if the grantee leaves the country, he cannot assign over his right to *36] any other; nor can he justify taking another person in his company.(n)(58) A way may be also by prescription; as if all the inhabitants of such a hamlet, or all the owners and occupiers of such a farm, have immemorially used to cross such a ground for such a particular purpose: for this immemorial usage supposes an original grant whereby a right of way thus appurtenant to land or houses may clearly be created. (59) A right of way may also arise by act and operation of law: for, if a man grants me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come to it; and I may cross his land for that purpose without trespass. (o)(60) For when the law doth give any thing to one, it giveth impliedly whatsoever is necessary for enjoying the same. (Þ)(61) (n) Finch, Law, 31.

(0) Ibid. 63.

(p) Co. Litt. 56.

(58) The way by grant also includes a reservation, which is in effect a granting back of the right of way by the grantee. The grant or reservation assures the right of way, as appurtenant to every part of the land to which it is attached, and the grantee of any part is entitled to it. Watson v. Bioren, 1 S. & R. 227. Underwood v. Carney, I Cushing, 285. Unless every person to whom any part is conveyed has a right to the way, the right is totally extinguished by an alienation of part of the premises to which it is appurtenant, because it cannot be said that the owner of one part has better right than the owner of the other: consequently, if both could not have the right, the whole would be gone. The grantee of a right of way, however, has no title to use it as a passage to other land than that to which it was attached; nor can the owner of the soil, who had granted the right of way to a stranger, use it for such a purpose. The use of a way must be according to the grant or occasion of it, and not exceed it: so that a right of way over another's ground to a particular place will not justify the use of it to go beyond that place. Kirkham v. Sharp, 1 Whart. 323. The grantee of a right of way is bound to keep it in repair. Wynekoop v. Burger, 12 Johnson, 222. The grant of a right of way may be implied as well as expressed. If one sells to another a lot carved out of a larger lot belonging to the vendor, agreeably to a plan upon which are laid out certain space-ways or passages over the proprietor's ground adjacent to the lot, contemplating at the same time that the vendee will erect brick buildings, to which such space-ways and passages are immediately necessary or useful, it must be considered as intending the grant of the right to the vendee to use those space-ways in common with the proprietor of the adjacent lot. Selden v. Williams, 9 Watts, 13. Van Metz v. Nankinson, 6 Whart. 307.-SHARSWOOD. Garrison v. Budd, 19 Ill. 558, 564 (1858). Boatman v. Lasley, 23 Ohio, 619 (1873). Cadwalader v. Bailey, 17 R. I. 495, 499 (1891). 2 Waterman on Trespass, 88, 89 (1875).

A way in gross must, from its nature, be a personal right, not assignable or inheritable; it cannot be made so by any terms in the grant. Boatman v. Lasley, 23 Ohio, 614, 619 (1873). A way is never presumed to be in gross when it can be fairly construed to be appurtenant to the land. Sanxay v. Hunger, 42 Ind. 44, 48 (1873).

(59) Prescription rests upon the presumption of a grant. But, to authorize such a presumption, the user must be adverse and under a claim of right. The period of twenty years has been adopted in England, in analogy to the statute of limitation in relation to land, which bars an entry after twenty years' adverse possession. In Pennsylvania the period of limitation is twenty-one; and the same period has been adopted to give rise to the presumption. Dyer v. Depui, 5 Whart. 584. So where a way has originally existed, it may be rebutted by evidence of non-user for the same period which gives rise to a presumption of extinguishment. But where it has been acquired expressly by grant or reservation, it will not be lost by non-user, unless there were a denial of title or other act on the adverse part to quicken the owner in the assertion of his right. Bute v. Ihrie, I Rawle, 218. Twenty-one years' actual occupation of land, adverse to a right of way and inconsistent with it, bars the right. Yeakle v. Nace, 2 Whart. 123.-SHARSWOOD. (60) Stuyvesant v. Woodruff, 1 Zab. (N. J. Law) 133, 155 (1847); Stewart v. Hartman, 46 Ind. 331, 342 (1874). In England, the owner of minerals under the surface, which property is divided by a railroad across it, is not entitled to cross the railroad to gain access to his minerals for the purpose of working them, but may tunnel under the rail. road. Midland R. R. Co. v. Miles, 30 Ch. Div. 634, 641 (Eng. 1885). A right of way over another's land may be created by necessity, by grant, or by prescription. Boone's Law of Real Property, sect. 143 (1883).

C. R. I. & P. Ry. Co. v. Smith, 111 Ill. 363, 370 (1884). 1 Ballard's Real Property, sect. 123, p. 181, n. (1892).

(61) These are termed ways of necessity. It is always of strict necessity; and this necessity must not be created by the party claiming the right of way. It never exists where

By the law of the twelve tables at Rome, where a man had the right of way over another's land, and the road was out of repair, he who had the right of way might go over any part of the land he pleased: which was the established rule in public as well as private ways. And the law of England, in both cases, seems to correspond with the Roman. (q) (62)

V. Offices, which are a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging (63) are also incorporeal hereditaments; whether public, as those of magistrates; or private, as of bailiffs, receivers, and the like. (64) For a man may have an estate in

(q) Lord Raym, 725. 1 Brownl. 212. 2 Show. 28. 1 Jon. 297.

a man can get to his property through his own land. That a road through his neighbor's would be a better road, more convenient, or less expensive, is not to the purpose. That the passage through his own land is too steep or too narrow does not alter the case. It is only where there is no way through his own land that the right of way over the land of another can exist. A right of way from necessity only extends to a single way. That a person claiming a way of necessity has already one way is a good plea, and bars the plaintiff. McDonald v. Lindall, 3 Rawle, 492. It is founded on an implied grant, according to the legal maxim, quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsa esse non potest [When the law concedes anything to one, it concedes, it seems, all things necessary to do that thing]. Nichols v. Luce, 24 Pick. 102. But whereabouts shall be the way? The owner of the land over which it exists has a right to locate it in the first instance, with this limitation, that it must be a convenient way. If he fails or refuses to locate, or makes an inconvenient or unreasonable location, the right devolves upon the grantee of the way. Russell v. Jackson, 2 Pick, 274. The right of way of necessity ceases with the necessity which gave rise to it; so that if a public road is opened, or the grantee purchases other land which gives him a way over his own land, the first right of way ceases. Collins v. Prentice, 15 Conn. 39. Pierce v. Selleck, 18 Conn. 321. New York Life Ins. & Trust Co. v. Milnor, 1 Barbour Ch. Rep. 353. SHARSWOOD.

A right of way may arise in three ways. First, from necessity; secondly, by grant; and thirdly, by prescription. Lawton v. Rivers, 2 McCord, 445, 447 (S. C. 1823). Extending this principle, it was held in Illinois that where a part of an island bordering on a pool was sold, and the existence of the pool was necessary to the enjoyment of the property for the uses for which it was sold by the grantor and accepted by the grantee, the continued use of the pool was appurtenant to the island and the grantee was entitled thereto. C. & E. I. R. R. Co. v. Shelby, 42 Ill. App. Ct. Rep. 339, 355 (1891).

(62) This is incorrect. The rule which prevails in both England and the United States may be stated as follows: If a highway becomes obstructed and impassible from temporary causes, a traveller may lawfully go extra viam upon adjoining lands; but if a man has a right of way over another's land, he cannot justify going over the adjoining lands when the way is impassible, unless the owner of the lands is bound by prescription or his own grant, to repair the way. See Taylor v. Whitehead, Doug. 716. Miller v. Bristol, 12 Pick. (Mass.) 550. Williams v. Safford, 7 Barb. (N. Y. 309). Respublica v. Sparhawk, I Dall. 357, 363 (Pa. 1788). Brown v. Chadwick, 31 Maine, 9, 25 (1849). State v. Brown, 109 N. C. S02, 804 (1891). 1 Lomax's Digest of the Laws of Real Property, 531 (1839). 2 Waterman on Trespass, 91 (1875). As to easements generally they are specifically distinguished from other incorporeal hereditaments by the absence of all right to participate in the profits of the soil charged with them. Gale on Easements, 8 (5 ed. 1876).

(63) Jones, Purvis & Co. v. Hobbs, 4 Baxt. 113, 120 (Tenn. 1874). Riddle v. County of Bedford, 7 S. & R. 386, 391 (Pa. 1865). State v. Ware, 13 Ore. 380, 385 (1886). Bunn v. The People, 45 Ill. 397, 414 (1867). White v. Clements, 39 Ga. 232, 275 (1869). State ย. Wilson, 29 Ohio St. 347, 348 (1876). Binn's Justice, 78 (10 ed. Brightly, 1895).

(64) Attorney-General v. Barstow, 4 Wis. 646 (1857). White v. Clements, supra. 1 Pingrey on Real Property, 118 (1895). An office is as much a species of property as anything which is capable of being held or owned, and to deprive one of, or unjustly withhold it, is an injury which the law can redress in a manner as ample as it can any other wrong. Wannock v. Holloway, 2 Ala. 31, 33 (1842). But an office created by statute may also be abolished by statute, unless it be a contract which cannot be impaired by legislation. An office established and held for the public good is not a contract, nor is its tenure secured by any binding contract. Standeford v. Wingate, 4 Duv. 440, 458 (Ky. 1842). An employment which is defined by law and not by contract is an office. Shelby v. Alcorn, 36 Miss. 273, 289 (1858). Thus some employments of a private nature are considered offices if connected with the public, as a bank or railroad president, treasurer, or secretary, or director. People v. Ridgley, 21 Ill. 65, 69 (1859). In this country, where offices are never conveyed to a man and his heirs, they cannot constitute incorporeal hereditaments. State v. Dews, I R. M. C. 397, 402 (Ga. 1835).

them, either to him and his heirs, or for life, or for a term of years, or during pleasure only:(65) save only that offices of public trust cannot be granted for a term of years, especially if they concern the administration of justice, for then they might perhaps vest in executors or administrators. (r) Neither can any judicial office be granted in reversion: because though the grantee may be able to perform it at the time of the grant, yet before the office falls he may become unable and insufficient: but ministerial offices may be so granted;(s) for those may be executed by deputy. (66) Also by statute 5 & 6 Edw. VI. c. 16, no public office (a few only excepted) shall be sold, under pain of disability to dispose of or hold it. For the law presumes that *37] *he who buys an office will, by bribery, extortion, or other unlawful means, make his purchase good, to the manifest detriment of the public. (67)

VI. Dignities bear a near relation to offices. Of the nature of these we treated at large in the former book;(t) it will therefore be here sufficient to mention them as a species of incorporeal hereditaments, wherein a man may have a property or estate. (68)

VII. Franchises are a seventh species. (69) Franchise and liberty are used as synonymous terms; and their definition is(u) a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject.(70)

9 Rep. 97. (8) 11 Rep. 4.

(65) I Pingrey on Real Property, 118 (1895).

(t) See book i. ch. 12.
(u) Finch, i. 164.

(66) Tillotson v. Cheetham, 2 Johns. 63, 71 (N. Y. 1806). Rex v. 49 Casks of Brandy, 3 Hag. Adm. 257, 282 (Eng. 1836). Crowell v. Lambert, 10 Minn. 369, 375 (1865). (67) The 49 Geo. III. c. 126 extends the provisions of this statute to other offices.—CHITTY. (68) Dignities were originally annexed to the possession of certain estates in land, and created by a grant of those estates; or, at all events, that was the most usual course. Rex v. Knollys, I L. Raym. 13. And although dignities are now become little more than personal distinctions, they are still classed under the head of real property, and, as having relation to land, in theory at least, may be entailed by the crown, within the statute de donis, or limited in remainder, to commence after the determination of a preceding estate tail in the same dignity. Nevill's case, 7 Rep. 122. And if a tenant in tail of a dignity should be attainted for felony, the dignity would be only forfeited during his life, but after his decease would vest in the person entitled to it per formam doni. Stat. 54 Geo. III. c. 145. Even if a man in the line of entail of a dignity, but not actually possessed of it, were attainted of treason, his son, surviving him, might claim from the first acquirer, without being affected by the attainder of his father. 2 Hale's Pl. Cr. 356. But if the father was in possession of the dignity at the time of such attainder, then his corruption of blood would be fatal to the claim of the son; and in the case of a dignity descendible to heirs general, the attainder for treason, of any ancestor through whom the claimant of such dignity must derive his title, though the person attainted never was possessed of the dignity, will bar such claim. Rex v. Purbeck. Show. P. C. I. Law of Forfeiture, 86, 87.-CHITTY.

(69) Sellers v. Union Lumbering Co., 39 Wis. 525, 527 (1876).

(70) Harcourt v. Good, 39 Tex. 455, 478 (1873). Montgomery v. Multnomah Ry. Co., II Ore. 344, 354 (1884). California v. Pacific R. R. Co., 127 U. S. 1, 40 (1887). McCrady v. Virginia, 94 U. S. 393 (1876). State v. Peel Splint Coal Co., 36 W. Va. 802, 813 (1892). McRoberts v. Washburne, 10 Minn. 27 (1865). Brown on the Law of Limitation, 327 (1869). Tiedeman on Real Property, 633 (2 ed.). I Lomax's Digest of the Laws of Real Property, 534 (1839). A franchise is a privilege granted by the government to individuals which is not enjoyed by, and does not belong in common to, the people of a country. In England it is conferred by letters patent from the Crown, and in the U. S. by grants from the legislative department of the government. It is a privilege which is granted because it is calculated to promote the public benefit, while, at the same time, it affords a source of revenue to those who engage in its exercise. Tiedeman on Real Property, sect. 633 (2 ed. 1892). In the U. S. a privilege or immunity of a public nature, which cannot be legally exercised without legislative grant, is held to constitute a franchise. Under this definition would be included the right of banking by a company or association where the authority to act as such is granted by the legislature. 2 Washburn on Real Property, 302 (2 ed. 1887). A franchise may be granted either to a natural or artificial person, to an individual or a corporation. Trustees of Maysville v. Boon, 2 J. J. Marsh, 225, 228 (Ky. 1829). See note page 467 ante.