The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1859-01-17

or hse,, nwhti.l assess tcporf, and they have ney
ty iSse that they were uttered with the coma =, =
sm',h 81 the Auprem~ Court bv one OF thei
suAe~, ia ae iSsring what ia called thsir onini"n
haIa, ~ II Ia 10 believe go por the naraw,n,i
eonss.hs mere 'sisrs psesen txtions ana binas,,
l. What 10 called the doctrine Of Lord aan.s.,p
wss aot bis mere than IL was that OF Air Tb4,,n
psnnison sad Sir Micases Potter. tue atasr a,s
Jas E-s who Sat in the ase tlhs irursh y,Sns wv
s assent - N Chane.ry. oi tho Lol,
MN. at thaa time more ssii se, ooaa y v.iy abb
,esraiss taan Lord Mansaed himsslf And who ias ~,
caa esan h nj ns tafn ti. own opinion with hi
srsuasns. toae in i7., and the other sa sl,7 :.
whsh lora Mansfeo had heard cnis ons - a s.,s ssc,
the point whs It should bs sai 20 hsye .cTsn upo,
int" tha t'xt Books since. am al lsss To ccnis
UT ~ dia nat creep into the wrld OF
thsitne x,-writers had. without dee esutios adj
mittec IT. have given the names OF ssversi az.
must va MI To thSss who arr com peteit to iu)c,,
whether they were iers cauii> htosi IN
rf this sort. than '',his iame learn d The
ban e
| II he rnAaut. tha, tbe sanction" Incidental,
| given By judges to the same d,cirine haa Teen il
all cases drparsd oIly let me ask. oy what form.l
e2pressios. Gould real sarc ion b. Civ If not b,
such as the iol.ownp w hen ald IL apn, opriatet
| 90 thers of a hghwaS. the use oniv is taken an !
except 40 lar as ihst goes. the rs hit of coil
prec seJ as IL was hei IRE; 80 much that the own
sr OF the soil may recover it In Seetms7t sui iect
how vtr TO the Ease nent; AID hs has sht TO h
| fret hold q. d all pr.nts above and uLd'r und
except ociy the right OF passage" seogwtck, j
| Mas hep~its. III oummons eaith VS. PeseIs "B,
the location OF way over the land of any per- on
| the public have acquired an easement, wh,h ia,
| saner OF the land cannot lawfully tx,inguish O,
nnrsasonshi1 interrupt Bas she soil and frs ehcit
| remain IN the owner, aithS ugh .nCunibered with
| way; and ever. use to v hieh the lsnd may be ap
ptieu and all thA prents which may be derived frU
m.n'. ths o.ner can lawfully claim he may
| inainssn Sl"7oie'f for The land thus encumbsred
snf Sa ,b oe be sh. hold tn.
Msss 4. p. 400. P,rly vs. thandir II holf il to .
esT, that ths pneiic IN the case of a highway
nave Zoo right but that Of passing and fepqss
log AID that the title the iana and all the pioGf
80 te derry trow II, consistently with and subject
70 the right OF way, remain III the owner of the soil
The owu'r may maintain tTespass Tor any injury tr
tle coli which IS not incidental TO the right OF pas
highwsS may be recover, IN s;.c9ment pn,ns ny
}, 10 Mass Rep, St-siack pol. VS. l4esly. cit was
once dGuoied her s1attnsnt or other action
S"uic lie loT the eoll OF rad highway bee sust
/. was said fu stEeu could not be ,lelyered. and
a dIctttAs Of Lord HardwcKe--, more correctly az
W. have seen one lmL ted g. Tim upon no etter
or htte batter. authority than mere rumorI -
was quoted to that effect in the case o, Gool
VJs removed ly tts decision in t.0f olss ard pea1
cjseriy y tad n0 foundation an principls Wlde.
:. delivering the opsiion Of The court Pick. ss
ianis " ETne 500 When the sovereign imposes
| aFubIc highway upon the land of an iu0iy dual
the title e the furmsf owner is not .xtiuEui, he'd
bGt Is so qualified that only be enjoyed sub
yeGt TO that easement. The former propti, tor still
retains ms exclusive right ell nliut g. qual riss
springs oi water, timber. and EARTH for every pur.
/ prscu in whom the Zee of he road Is may main
tain tTespass. or etscfDc!it or waste. platt j. de
living the opinion VI The court, Is ohns Eep 3t3
jackson VS. Hathaway. All ,hese tlic.d were prior.
! aud tae iatest Gt ttsm about five years prior to
thar very Femsi sabe utierance sr c0tFslra N The
| Supreme Court of the United States, on which
aui GeTe commenting. UIheIs eCueily polulso
might be produced. bat / ;orbesr.
). Stranger even than al that precedes Is what
sm now upon the point of iDtroa uciRg. Thou,
the JUDGES. whr SAT with Judge Thomp-on, and he
| tEire ia question had then in
But th7t of Goodtite rs Alker, ~ here il was th.
direct point 10 dsmens'" yet it had been adort-
Va smith, oerg & X. 26 in which Duncan J. detiy
eFing the opinion OF tho supreme Cour' OF pepnsyl.
Espla sai - be action Of tlectment whic b was
the orm o! sCtion in that case is enc posse ssion.
and 1t is no bar 30 recovery, that anoth possess
| es aright OF way, or other easenen for the owner
OF the coll may MAINTAIN an ejectment for land
over which highway IS laid out; because, though
| tho pnbiio have right 20 pass over il yet The
| freehold and all the profits belong TO the owner,
aud he may use it IN any wsy not inconsistent with
| the pub! right or easement" Aud afterwards IL
CClusi MT u: ght have been sufficient to have
ccci cd this sse on one ground. that plsntlf
In eTlor had q right O easement. tie only right
Mh,eh ne claims. still tho plaintiff below had the
have consd red it proper to iv~ an opinion on ali
| the errors assigned. so, in Pomeroy VS. Mile 3
| tern hep, 2Ie, which was indeed not the of 9
| highway but (eIdctly like the case of the city of
CincinDRti VS. htites ltssee) the case Of public
nient, subject to the public easement. ana al
| thouAh the form OF action in Alden Hurdocs. 10
A4ss hep, p i5e. was eurry sur diSseisiH; and thai
In Thompson vs. The PTopri- tors Of the An" roscog
| gin B .idge dreenl e. and In our own Vireinia
case of Boiling vs The May or of Petersburg 3 Rand
563, was writ ef Igh; yet sll persons competent
Judge krsow that those decisions are ju.t as much
authorii t. this rurpoe as II the form of tion
Carr, in his opinion IN the case last ctro WHEREIN
| Judges Brooke, aoell and Green coucurred Judge
alter beiue absent relied mainly upon the case
OF Goodtitie VS. Alker. as showing thar In England
| tie 8 ZION would Ce nainrai' able nd argued fur
ther to show, that the law was NOT In this respect
altered In virginia A. so Jnog &c Lomay, in both
ed tons OF his Digest (Toi l. ls edit, 53i I'd edit
6.3:) citing that authority aud rome others say,
= he grant CT kiehwsy. or the laying out If Il
The I q or right Of soil. r, .irs /. the original
owner. TO him belongs the trt ehod, as W, u the
pioft of .he land, such trees grow iox pop it,
| Az p'nrs under Il He a right TO al remedies
land ecne't s onel foE the Tres hod to h.
Tor any exclusive appropriations Ct the soii.n a.
the dct1 cited unde: the last head, so these deci-
SONS we're al PRIOR TO MrJustice fhOmp OLD g
| oher. su sequtn'ly, but shall ci,e only one. =:
Bic Eenis. 3us BrowLs vs Galley See also )
| ktnt' o m st edit, A3-9. 9Th edit 1929.
| Finally. ESQ far as relates to the paragraph !
am new conpid rinc.) We are referred to two cases
that thFfe are severai such cases. as il there
| more tnal these tw0 wher+ia 90 trine ccntrarl
to that OF aoodittie vs. hiAer has bee "a serted a,
Au,ia,ued" by Reasons Huch mere satisfactory than
| those upon which thst cs.eis "msce to rest' ow
| in the first OF ,hsss two cases ,iles Curtis,
Dsy 3zr, that contrary doctrine was advanced BY
| Only two iu ges ont o. eight thar delivered their
Opinions he other six iuing to accede 10 it, al
the ninth judge taking no part IN the decision; and
| il the otter Peck Va rmth, Conn kep, rs il was
advanf ed by only one judge. wnlie another wifi,
| -aiterwa'd'OJ I'm that sam case coac usivel,
dsnoEstTdtsd the III ut 10 maintsn jeciment under
such tances as iorn the subject OF pre
| ent consideration. That NAV cot teo tedi0usy
multiply fepettjane, and because shall, under he
next head, use sCme of his reasons must refer
| tie book Tor his argument. aver since it was De
| iiverec, the receyedd Crime OF he Courts In that
| state has been In accordance with IL. C"nn ksp
| 300, WatIous VS. soutA worth; l3 Conn hep. 3o9
H0cseer vs. Butler; lsConn KEEP. la2 keed vs leeds
MIR Justice Ihonp pson said fur, ,htr, If we lock
at the action Of ejectment on pTinc pie. and Quiia
what lis offset it cannot that is. the decision 10
looal ground 1t the action OF eiectmentlis 10 re-
possession ef tbe land In question; and the
iuds neut, If carried into execution. must be fut
lowed by delivery OF POSSESSION 10 the leasor of the
plaintiff" And then. at great length he proceedB
/, xpiain the difficulty regarded by him ss insu
perabe of delivering pnet sson TO the lessor OF the
plaintiff, consistent.y with preserving q right
way. whether ss bel0r gng to The defendant or to
the pabiic Tfdd. 10 his book. OF Shch Lord Brong-
ham, having occasion to mention IL in case in rbe
House OF Lords, spoke as one OF the very best books
in the preie SION most logically contived and ar
ranged aud shich,' kaid his tordship. must say.
IN jGssice 10 the memory of that must industrious
anc remarkable nan ore CT the greatest benz lao
10 the professionals nextto Comyer's Digest,
he mosf perfect mo3el OF Gear no logical arrange
msnt'- Eng and X Rep. 2i-6la gov Va TIE
dur!et aud Campsio Inn Company This writer,
IN this book both SO commenced, says: IN u g
oyery OF land. being art of his hwsy, the sheriff
should deliver possession, subject 20 the right ol
u .nAs st over II tor ne KfDR aud bis pee pse-IidGs
Pact, h edit, i14s But this doctrine. matter
now char IL may have seem. to that very logical
1ead, as well as TO numerous Others tbesides those
reaGy mentioned CT referred 70. ttere may he
named ar Watson. since one of e Judges in Eng
'and-h ats sheT, zl7il as sou ely incomprehen-
sible 70 Mr Justice Thompson and Gas iI wou.G
seeml 10 his brethren. "As u the plaintiffs taking
pos SO sion subject TO the e9sement il is say he,
(spsaking f,r them alb utterly imp<scti able -
s0d then he adds: 1t Is well said By Mr. Justies
smith, r. the case Of stles VS. CErts that the exc
cuton OF iudg neat ia .rch case involves as greas
"a Inconsistency as to issue hobers tdcaS posses
sioneas Of certain premises to A. sutI the pos
session of b." We'll, II IL were go, most clearly
tor reasons already fully s.atedj il Is not what
then. Had Meesieurs justices Thompson and
smith never learned, or mad they forgotten that
one tenaur ia common may MAINTAIN ii ctmeBt
tqainst smother. in which case the execution Of y
Judgment In f,yor If The aintih is to put him in