and with police regulations. (a) The established inference of law is, that a conveyance of land bounded on a public highway carries with it the fee to the centre of the road, as part and parcel of the grant. The idea of an intention in the grantor to withhold his interest in a road to the middle of it, after parting with all his right and title to the adjoining land, is never to be presumed. It would be contrary to universal practice; and it was

(a) 1 Rol. Abr. 392, B.; 2 Inst. 705; Lade v. Shepherd, Str. 1004; Gibbs, C. J., 7 Taunt. 39; Abbott, C. J., 2 Stark. 463; Doe v. Pearsey, 7 B. & C. 304; Goodtitle v. Alker, 1 Burr. 133, 143; Headlam v. Headley, Holt N. P. 463; Cortelyou v. Van Brundt, 2 Johns. 357; Jackson v. Hathaway, 15 id. 447; Makepeace v. Worden, 1 N. H. 16; Peck v. Smith, 1 Conn. 103; Perley v. Chandler, 6 Mass. 454; Robbins v. Borman, 1 Pick. 122; Adams v. Emerson, 6 Pick. 57; Writter v. Harvey, 1 M'Cord, 67; Bolling v. Mayor of P., 3 Rand. 563; Chambers v. Furry, 1 Yeates, 167; Pomeroy v. Mills, 3 Vt. 279; Gidney v. Earll, 12 Wend. 98; Mayor, &c., of Savannah v. Steamboat Company, R. M. Charlton, 342. The owner of the land over which a public highway passes, if he digs a raceway across the road, and builds a bridge over it, and a traveller sustains damage by its being out of repair, is liable in damages. Dygert v. Schenck, 23 Wend. 446. The statute of New York (N. Y. Revised Statutes, i. 525) allowing the owners of lands adjoining highways to plant trees on the sides of the road, and to bring actions of trespass for injuring them, assumes and affirms the principle of the common law in relation to such rights. It specially declares that all trees standing or lying on any land over which a highway is laid out, are for the use of the owner of the land, except such as may be requisite to make or repair the highway or bridges on the land. Though a turnpike corporation has only an easement in the land over which the turnpike road is located, a grant of the use of the land necessary for the enjoyment of the franchise as by erecting toll-houses, and digging wells and cellars for their accommodation, is necessarily implied. Tucker v. Tower, 9 Pick. 109. By the law of Louisiana, which follows in this respect the civil and not the common law, the soil of public highways is in the public. Renthrop v. Bourg, 4 Mart. (La.) 97; Dig. 43. 8. 2. 21. In the city of New York, the rule is, that if a lot be sold, bounded on a street as designated on a map of the city, or of the owner's land, the purchaser takes the lot with the indefeasible privilege of a right of way in the street as an easement. The fee of the street remains in the vendor, but subject to the easement, and the value of his fee is but nominal. This right of way is founded on an implied covenant in the grant. The street is considered, by means of the sale and map, as dedicated to the public by the vendor, when the municipal authorities shall think proper to open the street. In the Matter of Lewis Street, 2 Wend. 472; Livingston v. Mayor of New York, 8 id. 85; Wyman v. Mayor of New York, 11 id. 486. The cases of City of Cincinnati v. White, 6 Peters, 431; Sinclair v. Comstock, Harr. Ch. (Mich.) 404, and of The Trustees of Watertown v. Cowen, 4 Paige, 510, lay down the same rule, that if the owner of lands in a city or village lays the same out in lots and streets, and sets apart ground for a public square or common, it is a dedication of the streets or squares to the public, of which the grantees cannot be deprived. [Congreve v. Smith, 18 N. Y. 79, 84. See Woodring v. Forks Township, 28 Penn. St. 355. He cannot obstruct the way to lay down gas pipes to his house without the authority of Parliament. Queen v. Longton Gas Co., 2 El. & El. 650.]

said, in Peck v. Smith, (b) that there was no instance where the fee of a highway, as distinct from the adjoining land, was ever retained by the vendor. It would require an express declaration,

or something equivalent thereto, to sustain such an infer*434 ence; and it may be considered as the general rule, that a grant of land bounded upon a highway or river carries the fee in the highway or river to the centre of it, provided the grantor at the time owned to the centre, and there be no words or specific description to show a contrary intent. (a) But it is competent for the owner of a farm or lot, having one or more of its sides on a public highway, to bound it by express terms on the side or edge of the highway, so as to rebut the presumption of law, and thereby reserve to himself his latent fee in the highway. He may convey the adjoining land without the soil under the highway, or the soil under the highway without the adjoining land. If the soil under the highway passes by a deed of the adjoin

ing land, it passes as parcel of the land, and not as an appur435 tenant. It is equally competent for the riparian proprietor

to sell his upland to the top or edge of the bank of a river and to reserve the stream or flats below high water mark, if he does it by clear and specific boundaries. (a) The purchaser, in such a case, takes the bank of the river as it is, or may thereafter be, by alluvion or decrease of the flow of the river. He takes it subject to the common incidents which may diminish or increase the extent of his boundaries. (b) He may also convey the bed of a stream separate from the lands which bound it. (c)

(b) 1 Conn. 103.

(a) 1 Rol. Abr. 392, B. pl. 5; Harg. Law Tr. 5; Stevens v. Whistler, 11 East, 51; Headlam v. Headley, Holt N. P. 463; Wright v. Howard, 1 Sim. & Stu. 190; Brown v. Kennedy, 5 Harr. & J. 195; Cortelyou v. Van Brundt, 2 Johns. 357; Jackson v. Hathaway, 15 id. 447; Canal Commissioners v. The People, 5 Wend. 423; Lunt v. Holland, 14 Mass. 149; Hatch v. Dwight, 17 id. 289; Claremont v. Carlton, 2 N. H. 869; Luce v. Carley, 24 Wend. 451; Morrison v. Keen, 3 Greenl. 474; Chatham v. Brainard, 11 Conn. 60; Champlin v. Pendleton, 13 id. 23; Johnson v. Anderson, 18 Me. 76; Sibley v. Holden, 10 Pick. 249. Contra, Tyler v. Hammond, 11 Pick. 193. (a) Storer v. Freeman, 6 Mass. 435; Hatch v. Dwight, 17 id. 299; Jackson v. Hathaway, 15 Johns. 447; Webber v. Eastern R.R. Company, 2 Met. 151; Child v. Starr, 4 Hill (N. Y.), 369, 373, 374, 381; Dunlap v. Stetson, 4 Mason, 349.

(b) Adams v. Frothingham, 3 Mass. 352; Scratton v. Brown, 4 B. & C. 485; Dunlap v. Stetson, 4 Mason, 349. A river where the tide does not ebb and flow has no shores in the legal sense. It has ripa, but not littus; and shores, when applied to such a river, mean the water's edge, or margin of the stream. Child v. Starr, 4 Hill, 376, 880, 881

(c) Den v. Wright, 1 Peters C. C. 64. See the notes to the case of Dovaston ».

(4) Servitudes and Vicinage. The civil law treated very extensively of these incorporeal rights annexed to land; and what in the common law are termed easements, or a right which one man has to use the land of another for a special purpose, went under the general denomination of servitudes, because they were charges on one estate for the benefit of another. Toullier defines servitudes to be real rights, jura in re, existing in the property of another. Like incorporeal hereditaments, they have been held not to pass without a grant. (d) By virtue of such a right, the proprietor of the estate charged is bound to permit, or not to do, certain acts in relation to his estate, for the utility or accommodation of a third person, or of the possessor of an adjoining estate. The term is a metaphorical expression, borrowed from personal servitude, but the charge is entirely attached to real estates, and not to the person. Servitutum ea natura est, ut aliquid patiatur aut non faciat. Servitutem non hominem debere

Payne, 2 H. Bl. 527, in Smith's Leading Cases, Law Library, N. 8, xxv., in which the English, and especially the American editor, Mr. Wallace, has condensed and classified the principles respecting highways and riparian rights, deduced from the numerous cases, with diligence, skill, and usefulness.

(d) Orleans Navigation Company v. New Orleans, 2 Mart. (La.) 214. Easements may arise by implied grant, as upon the severance of an estate by a grant of part thereof, all those continuous and apparent easements continue which have been used by the owner during the unity of the estate, and without which the enjoyment of the severed portions could not be fully had, for no man can derogate from his own grant. Easements of necessity are also implied as incidents to a grant. In Gale & Whatley's Treatise of Easements, the numerous English cases on this subject are cited, and critically and skilfully analyzed. See pp. 49 to 86, The New York edition of this treatise by Mr. Hammond is much improved by the addition of American cases. [See 419, n. 1, B.]

(e) Dig. 8. 1. 15; ib. 8. 5. 6. 2. Toullier's Droit Civil Français, iii. n. 376; Institutes of the Civil Law of Spain, by Doctors Asso and Manuel, translated by L. F. C. Johnston, 1825. This digest of the civil jurisprudence of Spain collects summarily and states with great precision the Spanish law concerning servitudes, both in town and country (lib. 2, tit. 6), and it appears to be a very close adoption of the distinctions of the civil law on the subject of rural and city services. The Code Napoleon, b. 2, tit. 4, has also condensed, and the Civil Code of Louisiana has borrowed from it, the principles of the civil law on the subject of servitudes. Before the promulgation of the code, there were many French treatises on servitudes, and in the Répertoire de Jurisprudence, par Merlin, and in his Questions de Droit, tit. Servitude, a crowd of Italian, German, and French treatises on servitudes are cited, and among them the Traité des Servitudes, by Lalaure, which Toullier says has been of great use to all succeeding writers. The subject is treated at large by Merlin, and he has enriched it with forensic discussions. The treatise by Desgodets was a simple commentary upon the law of buildings, under the custom of Paris; but since the era of the code, M. La

The regulations in the civil law on the subject of urban and rural servitudes were just and equitable, and the provisions made

to define and protect those rights were far more minute *436 and precise than those which are to be found on the same subjects in the books of the common law; and it is difficult to solve many questions arising on those rights, without having recourse to the solid and luminous principles of the civil law, which are of permanent and universal application. (a)

In cities, where the population is dense, and the buildings compact, a great variety of urban services grow out of the relation of vicinage. There is the right of support, which arises from contract, or prescription, which implies a grant. This right is where the owner of a house stipulates to allow his neighbor to rest his timbers on the walls of his house. There is also the servitude of drip, by which one man engages to permit the waters flowing from the roof of his neighbor's house to fall on his estate. So there is the right of drain, or to convey water in pipes through or over the estate of another. The right of way may also be attached to a house, entry, gate, well, or city lot, as well as to a country farm. These servitudes or easements must be created by the owner, and one tenant in common cannot establish them upon the common property without the consent of his cotenant. (b) The exercise of these urban and rural servitudes

Page has published two octavo volumes, entitled Lois des Batimens, ou le Nouveau Desgodets, in which the law of vicinage, in relation to city servitudes is examined with great minuteness of detail. The Traité du Voisinage, in two volumes octavo, by M. Fournel, a French lawyer of the old régime, discusses at large the different subjects embraced by the law of vicinage, in an alphabetical or dictionary form; and he is a learned and voluminous writer, who has published several interesting tracts on various branches of the law, and who speaks with freedom and contempt of the great mass of laws and ordinances promulgated by the revolutionists in France prior to 1800, when the first edition of his work on the law of vicinage appeared. In those egislative assemblies, he says, there were peu de jurisconsultes, beaucoup d'hommes de loi. Since the new code, the Traité des Servitudes, suivant les Principes du Code, par M. Pardessus, is much regarded, and this eminent professor is always cited by Toullier with respect, though he combats with freedom many of his opinions. Toullier himself (iii. 326-554) has discussed the whole of this subject of servitudes upon the principles of the code, with his usual order, accuracy, and learning.

(a) M. Fournel, when speaking of the Roman law in relation to this subject, says, that Quelque chose que vous démandez aux lois Romaines, elles vous en fournissent la réponse; and we may say of that law, as the younger Pliny said of Titus Aristo, who was an accomplished lawyer, and his particular friend: Nihil est quod discere velis, quod ille docere non possit.

(b) Dig. 8. 1. 2; ib. 8. 2. 19; Pothier, Coutume d'Orleans, Int. to tit. 13, des Ser

may be limited to certain times. The right of drawing water, for instance, from a neighbor's well may be confined to certain hours, or a right of passage may be confined to a part of the day, or to a certain place. (c)

(5) Party Walls. - If there be a party wall between two houses, and the owner of one of the houses pulls it *437 . down, in order to build a new one, and with it he takes down the party wall belonging equally to him and his neighbor, vitudes, art. 2, n. 6. See, also, his Traité du Quasi-Contrat de Communauté, passim ; Institutes of the Laws of Holland, by Van der Linden, b. 1, c. 11, sec. 2; Institutes of the Civil Law of Spain, by Doctors Asso and Manuel, b. 2, tit. 6; Bell's Principles of the Law of Scotland, 266-274; Civil Code of Louisiana, arts. 734-738. In Burge's Comm. on Colonial and Foreign Laws, ii. tit. Servitudes, the law of urban and rural servitudes under the civil law, and the codes of those nations which have adopted and modified the civil law, is extensively considered. Servitudes, chargeable upon the estate in common, such as the right to enter, and search and dig for coal, and carry it away, would go to alter, injure, waste, and destroy the estate; and any attempt to do it without common consent, or under some equitable modification, to be prescribed on partition or otherwise, would subject the party to the action of trespass or waste, or to restraint by injunction at the instance of the dissenting cotenant. (c) The general rule, in the civil and French as well as in the English law, is, that the burden of necessary repairs of an easement is cast upon the owner of the domi nant and not of the servient tenement, for the easement is for the exclusive benefit of the former. Dig. Si serv. vend. 1, 6, sec. 2, 1, 8; Code Civil, art. 698; Bracton, lib. 4, fo. 222; Lord Mansfield, in Taylor v. Whitehead, 2 Doug. 745; Gale & Whatley on Easements, 308; Prescott v. Williams, 5 Met. 429. The law of vicinage rests on just foundations. Any act or default of the possessor of a tenement, to the injury of a party interested in the neighboring tenement, becomes a nuisance. So if a person, negligently and without ordinary prudence, constructs a hay rick on the extremity of his land, and with great negligence suffers hay to remain liable to spontaneous ignition, and it takes fire and burns his neighbor's house, he is liable in damages. Vaughan v. Menlove, 8 Bing. N. C. 468. See, also, to the same point, Tubervil v. Stamp, 1 Salk. 13; Barnard v. Poor, 21 Pick. 378. If a fire occurs by the negligence of the owner, and destroys his neighbor's house, he is liable in damages; but not if the accident was inevitable, or the owner not in fault. The principle is, that every man is so bound to deal with his own property as not to injure the property of others. To erect on the defendant's house eaves and a pipe, overhanging and conducting water on land in the occupation of a tenant, is a permanent injury, which gives an action on the ease to the reversioner. Tucker v. Newman, 3 Perry & Dav. 14. If sparks from a railway or steamboat engine set fire to an erection on an adjoining field or building, the liability of the company for the injury will depend upon the question of negligence on their part. Aldridge v. G. Western R. Co., 8 Mann & Gr. 515; Cook v. Champlain T. Company, 1 Denio, 92; 8. P. supra, ii. 284; [Fero v. Buffalo & S. L. R.R., 22 N. Y. 209; Smith v. London & S. W. R. Co., L. R. 6 C. P. 14. But compare Pennsylvania R.R. v. Kerr, 62 Penn. St. 353.] A canal company is not liable in damage for a mere accidental breach of a canal. Higgins v. Ches. & Del. Canal Co., 8 Harring. 411. Messrs. Gale & Whatley on Easements have treated of the rights and remedies arising from nuisances created by vicinage, 275-296, and to that learned work I refer the reader, as a critical digest of the cases would lead me too far into detail.