Way

The right of going over another man's ground. ' By right of Kay is generally meant a private way, v^hich is an incorporeal hereditament of tliat class of easements in which a particular person, or description of persons, has an interest and a right, though another person is the owner of the fee of the land in which it is claimed.* A right to pass over another's land more or less frequently according to the nature of the use to be made of the easement." The privilege which one person, or description of persons, may have of passing over the land of another in some particular line.^ Referring to a railway, a right of way is a mere easement in the lands of others, obtained by lawful condemnation to the public use or by purchase.' It is a way over which the company has to pass in the operation of its trains. The term includes land acquired for necessary side tracks and turnouts, and the improvements thereon, s ' City of Hoboken v. Pennsylvania E. Co., IM U. S. 636 (1888). "Mc Calmont v. Whitaker, 3 Eawle, 90 (1831), Gibson, C. J.; 62 Me. 91; 10 Barb. 521.

8 2 Bl. Com. 35. « Wild V. Deig, 43 Ind. 468 (1873): Angell, Highw. 1-2. "Bodflsh V. Bodflsh, 105 Mass. 819 (1870), Ames, J. « Kripp V. Curtis, 71 Cal. 63 (1886), Searls, C. ' Williams v. Western Union E. Co., 50 Wis. 76 (1880), Orton, J..

It sometimes refers to the mere intangible right of crossing; often, to the strip -which the company appropriates for its use, and upon which it builds its road-bed. i This incorporeal hereditament is a right of passage over another man's grovmd, and arises by grant from the owner of the soil, by presoriptiqn, which supposes a grant, or from necessity. To be a freehold right it must be created by deed. It imports a right of passing in a particular line. If it be a right of way in gross, or a mere personal right, it dies with the person. As appendant or annexed to an estate, it may pass by assignment of the land. A right of way from necessity arises, as an incident, where one sells another land which is surrounded by other land of the vendor: the grant of land, or the use of a house, etc., carries the right of ingress and egress. The temporary right of going upon adjoining land, where the highway is Impassable, applies solely to public ways." A " way appurtenant " is incident to the estate, inheres in it, and goes with it on a transfer as essential to its enjoyment. " A right of way in gross " is personal to the grantee, and not assignable or inheritable.^ What is a reasonable use of a way, where the purposes are not defined in the grant, is a question of fact, to be determined upon evidence. A grant without restriction is understood to be general for all purposes.' A grant of way across one's land does not imply that It is to be open and free from gates, unless the nature of the use indicates that it should be unob-, strueted. Nothing passes as an incident to the grant of an easement but what is requisite to the fair enjoyment of the privilege. ° Private ■way. A way established by law for the particular benefit or accommodation of individuals, such as lead from a county or town road to the farms or dwelling-houses of private individuals, and which are to be maintained and kept in repair by those for whose accomijiodation they were established.6 Public way; highway; public highway. A lawful public road.'' > [Keener v. Union Pacific E. Co., 31 F. E. 188 (1887), Brewer, J. "3 Kent, 419-21, 424; 2 Bl. Com. 36. As to ways of necessity, see further City of London v. Eiggs, 37 Eng. E. 1 (1880)1 Linkenhokerr. Graybill, 80 Va. 838-39 (1885), cases; Kripp v. Curtis, 71 Cal. 65 (1886); as to ways of coiivenience, 17 Cent. Law J. 127 (18S7)

Can

Law J. 'Hall V. Armstrong, 53 Conn. 566 (1885), cases, Loomis, J. «Eowe Il V. Doggett, 143 Mass. 487 (1887); Washb. Sase. 254 282. » Whaley v. Jarrett, 69 Wis. 615 (1887), cases; Washb. Ease., 3 ed., 230-31, 264. 'Jones V. Andover, 6 Pick. 60 (1827), Parker, C. J.; "Highway" applies to all great roads leading from town to town, to markets, and to public places, and denotes a way that is common to all passengers.' A " highway " is a road open to the public for use, in their own vehicles. In a special connection may include a railroad, Plank and macadamized roads are highways in a strict sense. ^ " Highway " is a generic name, embracing every kind of way common to all citizens, whether a footway, a horse-way, a cart-way, or way by water, however laid out originally and under whosesoever's charge. Eoads are divided into "highways" and "private ways." Highways are subdivided into " public highways " and " neighborhood roads." " A highway is nothing but an easement, comprehending merely the right of all individuals in the community to pass and repass, with the incidental right in the public to do all acts necessary to keep it in repair.' Every thoroughfare which is used by the public is a highway, whether it be a carriage way, a horse way, a foot way, or a navigable river. It is the genus of all public ways. The presumption is that the owners of the land on each side go to the center of the road, and they have the exclusive right to the soil, subject to the right of passage in the public' A railroad is a public highway — a road for public use. And a State may impose a tax in furtherance of that use. The same is true as respects turnpikes, bridges, ferries, canals, etc. The public have in " common roads " a mere right of passage, no right of possession or occupation." In most cities, the lee of the land belongs to the adjacent owner, and, upon discontinuance of the street, the possession reverts to him.' The State has an easement to adapt the sti'eets of a city to easy and safe passage." The duty of a municipality being to keep ways free from defects — in good repair, it will be held liable for an injury from an obstruction placed on a street by a third person, where the obstruction remains long enough to charge the authorities with notice.' Every parish is bound of common right to keep the highroads that go through it in good repair, unless the care is consigned to a particular person. From this burden no man was exempt by early law.

About > Harding v. Medway, 10 Met. 469 (1845), Hubbard, J. 2 Flint, &c. E. Co. v. Gordon, 41 Mich. 428-29 (1879), Cooley, J. s State V. Harden, 11 S. C. 338 (1878), Haskell, A. J. ' Peck V. Smith, 1 Conn. 132 (1814), Swift, J. See also State V. Davis, 80 N. C. 332 (1879). » 3 Kent, 432.

Boston & Albany E. Co. v. Boston, 140 Mass. 87-^ (1885), cases — as to a "public foot-way." » Olcott V. Supervisors, 16 Wall. 694-97 (1872), cases. 'Banks v. Ogden, 2 Wall. 69 (1864); Barnes v. District of Columbia, 9l U. S. 556 (1875). s Transportation Co. v. Chicago, 99 U. S. 641 (1878). 1530, the care of roads was first left to the parishes, and the care of bridges to the county at large; for neglect a parish could be indicted. About 1555, and later, in 1773, by statute 13 Geo. in, surveyors of the highways were chosen in eveiy parish, empowered to call the parish together, and set the people at the work pf repair, the owners of teams and of lands being each required to send a team, and other persons between eighteen and sixty-five required to work in person or by substitute, or else to compound with the surveyors at certain rates. When the personal labor of a parish was inadequate for the work of repair, the surveyors, with the approval of the court of quarter sessions, were authorized to levy a tax on the parish in aid of the personal duty.* See further Alley; Along; Boundary; Dedication, 1; Easement; Filum, Vise; Necessitas, Trinoda; Ntjisancb; Boad, 1; Street; Travel.