The Bedford gazette. [volume] (Bedford, Pa.) 1805-current, 1855-01-26
NEcot Cosap.t--S,ase stated

NacOt C0sQrG--Gase Stated
ssA and are owners each of lot of ground, on
the opposite sides OF Julianna Street IN the Borough
Of Bedford. The deeds each describe the lots as
bounded by said street. B sinks shaft on his own
lot, for the purpose of mining coal, lying beneath
the surface aud extends drt into the soh beneath
the surface the street. the street, aud mines
aud carries away all the coal under the street.
brings an action OF frespass Qaaye clasHn tfegit'
10 damages for the trssSpass. denies that
A has any right 10 recover"
QuEsrIox-Fo whom belongs the fee occupied by
/ the street?
Auornies for Pff-Barcay, Fyan, Tate and Shan
For Deft.- Bannan, Fletcher, Spang and Boyd.
The opinion of the Court was delivered by
BLODGET JOHN A.JUSTICE.-In the above case
the deed from the grantor of conveying the lot IN
controversy described the LOT as bounded by JnlaH-
street. 1t has been repeatedly decided that where
the deed designated the boundary of the lot 10 be the
sde Of the it has been invariably extended 10
the If the grantor seized IN fee and con-
veyed all his interest 10 A, bounded by Jnlianua
street, the grantee took fria the lot Ia question
10 the OF the street, subject 10, and charged
with. easement public right OF way over the
surface.
! In the case of Peck SUrith, Conn. Rep refer
red to 10y the Counsel OF the plaintiff, well as the
Counsel OF the defendant, II decided hy Chiet jus
ice Reeves that s'the purchasers each side OF the
! highway have a property in the highway, and each
own 10 the eeH6ye OF the road.' And again: ''From
this of the subject, the propneiors OF lands ad-
joining highway, will be found 10 own the freehold
OF the highway, subject to the easement OF passing
over it. Pages 106-S.
In the above cited case, the highway ppon which
the tresspass committed, mol passed by the
deed of the Gianor the Grantee, and plaintiff IN
an action dixie the presently OF 'sresspass gz0Te c-
sHB fregt,'' but said highway expressly reserv-
ed by the following clause, VIZ: E'Savlng and eX-
ce2tng the road OF highway land out and improved,
running from the old highway to the bridge over the
premises" The Court diSregarded the exception and
reservation, considering the reservation mere
matter OF c8oR the part of the grauo 10 AVOID all
1 liability his covenants in tn" deed In 9Th Mass.
/ Rep. it is held that every TO which the land may
be applied, and all the profits that Gay be derived
/ from il, TIE owner can lawfully enjoy.
Judge lngersoli, the dissenting Judge, IN the ease
! Of Peck Smith, thus expresses himself: "How
! il might be 10 @Haty ground with which the
public has coIcern, do not pretend to say 1ba'
indeed, might say, that If the highway be but a
mere right OF passage. the mines Opid belong 10 the
owner of the soil and Tor violating his property tre>s-
pass would lie. Page 1872. The OF Peck v.
Smith, action oftTesspass for erecting build
ing the road The tresSpaSs IN that case, was ex-
teFnai open and notorious and might have been aba
ted by any person whose right uf way was lmpeded.
That was different from the present IN many oi
Its features. And upon careful examination OF mat
case, the conclusion viii be irresistible, that II had
been similar 10 the present case there would have
would have been unanimously for the plaintiff.
If the public have only the night way, passing,
and the adjoining proprietor has the freehold, the con
sequence Is that he is legal considerations IN pos
session OF the freehold. The laying out of the high
way, and the passing by the public do dissc-e
disposSesS the He continues the pos
session subject TO the easement; and Is entitled 10
every right TO which he before entlled-eXcept-
ing that The bubble have the right OF passage.
Conn. Rep. 1884,
And agaiu-the right of way does rot interfere with
the freehold of the owner-al the profits belong 10
The owner the soil. So DO all the mines under il,
which may be very valuable. Same Case-l43. A
right of way is only easement and passes
est in the land. YeiV. Rep. lJ9.
If, then, the right OF way dIvests the owner of no
property IN he soll--and he st retains hi right III
and TO the same, and all mines and minerals nnder II
1t IS absurdty 10 contend that he would have no
remedy against t-fraS0r for breaking and enter
ing his close. that action of teSspass q@4re ca-
SHnl ffceit for inning aud conveying away his coal,
would not lie. unqnestionahly, like all other citi-
Zens had right o! way--a mere iHc0rp0re0i right
but the moment he broke and entered the close Of A,
by mining beyond the centre OF the road, he became
4 tresspa>ser and the just subject OF this action
II IS said that A ought to have brought different
form of action; and E'acton on the case has been
suggested as the proper remedy. Not 30. Here the
injury and e0NSegufHtSt and. there
fore, case would not lie. Nehrr could A have pro-
perly brought tjecmenf for the trrsspass Of tie
defendant did not work such diSscisia or custer oi
A as 10 throw him ou OF possession. And the di>a-
b!hty Of 10 bring ejeciment his being IN posses
sion o the ''ior"s IN gao,' is the very reason that
luSti6ps the present form OF action.
A i in possession OF his lot extending by constTuc-
ton, the eIdde OF the street, auttling him 10
delve TO the centre oil the earth, encHmbered only
with easement or right of way over the suriace.
Troutat Haley ha> been referred to, and many 9th
er authorities shew that whatever the interest ol
the plaintiff may be, is III general necessary that 1t
should actually be vested III po session at the time
the wrong done rule relating TO constructive
possession not applying 10 real estate. This rule,
however, has its f1crptj0Ds The case of wild and
uncultvated land is one, ard the very in
versy is another. Thus s.the property in highway
| Is the Of the land which it is laid out
who maintain tresspass against any one, who de-
pastures his cattle thereon does any other damage
which is not necessary 10 the right of passage
,. IT. 4 II. as.
Let inquire what possession conld have had
thai would have been open and notorious than
the occupation of hls dwellIngcntivaton of his lot
aud the of the street before his door in common
with othersl Certainly he could not build on the
street 10 the of the highway could he en-
close IT 10 the centre of the street without becoming
himself -feasor, bringing down the vengeance
of the municipal and statute law upon his shoulders
having his erectons abated and himself indicted for
| nuisance. A, then, labored under a legal disability
10 exercise any other act of possession the pro-
perty. and further act of ownership is required
| For The law does no; reqBre to do vain i'm
possible things
1t is laid down in sth Harris. IS. That no man
has right 10 appropriate his neighbors' land his
own use, even Tor Temporary purpose. When Gne
uses road Whenever he chuse, over the land of an