Way

A passage, street, or road.

In its most general sense, it includes both public highways and private ways (Co. Litt. 56a; but it is generally used as sy-

A passage, street, or road. A right of way is the privilege which an individual, or a particular description of individuals, as the inhabitants of a village or the owners or occupiers of certain farms, have of going over another’s ground. It is an incorporeal hereditament of a real nature, entirely different from a common highway. Cruise, Dig. tit xxiv. s. L 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, and casion or chose to pass. Bodflsh v. Bodflsh, 105 Mass. 319. A right of way may arise: By prescription and immemorial usage, or by an uninterrupted enjoyment for twenty years under a claim of right; Co. Litt. 113; Garrett v. Jackson, 20 Pa. 331; Reimer v. Stuber, 20 Pa. 458, 59 Am. Dec. 744; Sheeks v. Erwin, 130 Ind. 31, 29 N. E. 11; Coburn v. San Mateo Co., 75 Fed. 520; Bushey v. Santiff, 86 Ilun 384, 33 N. Y. Supp. 473; Follendore v. Thomas, 93 Ga. 300, 20 S. E. 329. By grant; as where the owner grants to another the liberty of passing over his land; 1 Ld. Raym. 75; Salisbury v. Andrews, 19 Pick. (Mass.) ^250; 7 B. & C. 257. If the grant be of a freehold right it must be by deed; 5 B. & C. 221; Foster v. Browning, 4 R. I. 47, 67 Am. Dec. 505. By necessity; as where a man purchases land accessible only over land of the vendor, or sells, reserving land accessible only over land of the vendee, he shall have a way of necessity over the land which gives access to his purchase or reservation; 5 Taunt. 311; Wissler v. Hershey, 23 Pa. 333; Collins v. Prentice, 15 Conn. 39, 38 Am. Dec. 61; Bass v. Edwards, 126 Mass. 445; Mead v. Anderson, 40 Kan. 203, 19 Pac. 708; Barnard v. Lloyd, 85 Cal. 131, 24 Pac. 658; and this may exist even after the vendor has conveyed his land to a third person; Logan v. Stogsdale, 123 Ind. 372, 24 N. E. 135, 8 L. R. A. 58; but a way of necessity is not created by the fact that a road over grantor’s land would be of less distance to a highway than a road already established; Vossen v. Dautel, 116 Mo. 379, 22 S. W. 734. The necessity must be absolute, not a mere convenience; Nichols v. Luce, 24 Pick. (Mass.) 102, 35 Am. Dec. 302; Stefens v. Orr, 69 Me. 323; Mayo v. Thigpen, 107 N. C. 63, 11 S. E. 1052; Oliver v. Pitman, 98 Mass. 50; 11 Ch. Div. 968; L. R. 9 Ch. Ill; contra, Williams v. Safford, 7 Barb. (N. Y.) 309; and w r hen it ceases the way ceases with it; Pierce v. Selleck, 18 Conn. 321; New York, L. I. & T. Co. v. Milnor, 1 Barb. Ch. (N. Y.) 353. See Easement. By implication; ltightsell v. Hale, 90 Tenn. 556, 18 S. W. 245. By reservation expressly made in the grant of the land over which it is claimed; White v. Crawford, 10 Mass. 183; Hart v. Connor, 25 Conn. 331. By custom; as where navigators have a right of this nature to tow along the banks of navigable rivers with horses; 3 Term 253. By acts of legislature; though a private way cannot be so laid out without the consent of the owner of the land over which it is to pass; Reynolds v. Reynolds, 15 Conn. 83; Taylor v. Porter, 4 Hill (N. Y.) 140, 40 Am. Dec. 274; Mc Cauley v. Dunlap, 4 B. Mon. (Ky.) 57. The easement of a property owner in a private way across a railroad track is extinguished on his jointhe private way; Mc Kinney v. R. Co., 222 Pa. 48, 70 Atl. 940, 21 L. R. A. (N. S.) 1002. A right of way may be either a right in gross, which is a purely personal right incommunicable to another, or a right appendant or annexed to an estate, and Which may pass by assignment with the estate to which it is appurtenant; 3 Kent 420; Shepherd v. Watson, 1 Watts (Pa.) 35; Salisbury v. Andrews, 19 Pick. (Mass.) 250. But see Easement. A right of way appurtenant to land is appurtenant to all and every part of the land, and if such land be divided and conveyed in separate parcels, a right of way thereby passes to each of the grantees; Underwood v. Carney, 1 Cush. (Mass.) 285; Watson, v. Bioren, 1 S. & It. (Pa.) 229, 7 Am. Dec. 617. A way is never presumed to be in gross when it can be construed to be appurtenant to land; French v. Williams, 82 Va. 462, 4 S. E. 591. Where a way appurtenant to land granted is not located by the grant, the parties may locate it by parol agreement at any point on the premises over which the right is granted; Kinney v. Hooker, 65 Vt. 333, 26 Atl. 690, 36 Am. St. Rep. 864. Ways may be abandoned by agreement, by evident intention, or by long non-user. Twenty years’ occupation of land adverse to a right of way and inconsistent therewith bars the right; Yeakle v. Nace, 2 Whart. (Pa.) 123; Crain v. Fox, 16 Barb. (N. Y.) 184; Pope v. Devereux, 5 Gray (Mass.) 409. Where a way of necessity once existed it will be presumed to exist until some fact is shown establishing non-existence; Blum v. Weston, 102 Cal. 362, 36 Pac. 778, 41 Am. St. Rep. 188. A person cannot acquire a prescriptive right of way over his own lands, or the lands of another which he occupies as tenant; Vossen v. Dautel, 116 Mo. 379, 22 S. W. 734; and where one has uninterruptedly used a way over another’s land for the necessary length of time to establish an easement by adverse user, it will be presumed that the user was adverse, and under claim of title, and the burden is on one claiming that it was by virtue of a license to prove that fact; Colburn v. Marsh, 68 Hun 269, 22 N. Y. Supp. 990. The owner of a right of way may disturb the soil to pave and repair it. But a way granted for one purpose cannot be used for another; Brown v. Stone, 10 Gray (Mass.) 61, 69 Am. Dec. 303. A person having a right of way which is obstructed by a house erected upon the way may, after notice and request to remove it, pull it down, although it is actually inhabited; [1S91] 3 Ch. 411. Lord Coke, adopting the civil law, says there are three kinds of ways: a footway, called iter; a footway and horseway, called may be added a driftway, a road over which cattle are driven; 1 Taunt. 279. Where a railway company closed an old road at a level crossing, by the consent of the plaintiff’s predecessor, it was held that the defendant had a right, in passing, to go on plaintiff’s land; 39 T. L. R. 555. See Highway; Street; Easement; Thoroughfare.

A passage, path, road or street In a technical sense, a right of passage over land. A right of way is the privilege which an individual, or a particular description of persons, as the inhabitants of a village, or the owners or occupiers of certain farms, have of going over another's ground. It is an incorporeal hereditament of a real nature, entirely different from a public highway. Cruise, Dig. tit. 24, § 1. The term "way" is derived from the Saxon, and means a right of use for passengers. It may be private or public. By the term "right of way" is generally meant a private way, which is an incorporeal hereditament of that class of easements in which a particular person, or particular description of persons, have an interest and a right, though another person is the owner of the fee of the land in which it is claimed. Wild v. Deig, 48 Ind. 455, 13 Am. Rep. 399.

— Private way. A right which a person has of passing over the land of another. Jones v. Venable, 120 Ga. 1, 47 S. E. 549; Whiting . Dudley, 19 Wend. (N. Y.) 376; Kister v. Rees-er, 98 Pa. 1, 42 Am. Rep. 608; Kripp v. Curtis, 71 Cal. 62, 11 Pan. 879. In another sense (chiefly In New England) a private way ls one laid out by the local public authorities for the accommodation of individuals and wholly or chiefly at their expense, but not restricted to their exclusive use, being subject, like highways, to the public easement of passage. See Metcalf v. Bingham, 3 N. H. 459; Clark v. Boston, O. & M. R. Co., 24 N. II. 118; Denham v. Bristol County, 108 Mass. 202; Butchers', etc., Ass'n v. Boston, 139 Mass. 290, 30 N. E. 94

— Right of way. See that title.

A right of passage over land a right obtains; particularly of the owner of an article, or through the land of another, garded as a road, is public or road open to the public, as are to town, and from one public tablished by law for the use stance, leading from a public

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)

The right of a man and his heirs, or tain estate, or of a certain class of individuals, another man's land; an incorporeal easement.

In a popular sense, signifies a place appointed for persons to pass over; but in a legal sense it seems to be not the strip of land, but the easement or right of passing. It is a privilege or right of passage or travel over the land of another. Way is a passage, street, or road; and a right of way is the privilege which an individual, or a particular description of individuals, as the inhabitants of a village or the owners or occupiers of certain farms, have of going over another's ground. Bouvier. Ways are of four principal varieties: iter, i.e. a footway; actus, i.e. a horse and foot way, called also a paekway; via, i.e. a cartway (including foot and horse way); and a driftway, i.e. a way for driving cattle. Ways are either public or private, the former being open to all the king's subjects, the latter being open to the inhabitants of a particular parish, village, or house only; a public way is also commonly called a highway. Brown. The term way is derived from the Saxon, and means a right of use for passengers. It may be private or public. By the term " right of way " is generally meant a private way; which is an incorporeal hereditament of that class of easements in which a particular person, or particular description of persons, have an interest and a right, though another person is the owner of the fee of the land in which it is claimed. Wild V. Deig, 43 Ind. 455.

pleadings. In an indictment for simple larceny, the words ‘‘ feloniously took and carried away,” the goods stolen, are indispensable. Bac. Abr. Indictment, G 1; Com. Dig. Indictment, G 6; Cro. C. C. 37; 1 Chit. Cr. Law, *244. Vide Taking.