The times. [volume] (Richmond, Va.) 1890-1903, 1891-03-27


necessity for the proposed extension Of the llnc
OIL that street
Court of Portsmouth dissolved the INJUNCTION
and an appeal WAS taken TO the supreme Coafl
The appellant claims that his ownership eS-
tends to the centre OF the street subject only 10
the easement of the public for the purpose OF
ordinary travel 49,,
The COMPANY contends that the right of the
street lies in the city OF Portsmouth,
WHAT THE JUSTICE SAYS.
In his opinion Yesterday the Justice says: ut
is a very general principle of the common Jaw
well established IN England and Illustrated ana
enforced by the American aeclsioms, tat f e
soil, subject 10 an easement Tor the Dement, Oh
III IL said in repeated decisions that the high
way Is a passage which Is open 10 ali the hlhgs
su .si tho rr,l,c in - highway con-
sisting solely in the night OF passage tine soh
nnd freehold over which that rght-of-Wa is
exercised may be, and generally j., vested IN
private owner. VINO may MAINTAIN IN ny.tUn
against persons who may infringe ms nights
therein, a., for instance, by permitting caluC 10
depasturo there. or by hunting therein ana IL
was held that the general prima facie rosunil,
ton of law is that the freebooter of the ro0d
usQue al medium filum yIy1, Is III the lropTe-
tors Of the land on either SIDE.
This presumption Is allowed 10
prevail upon the ground OF public convenience
and 10 prevent dispute a. 20 the precise bounda-
ries OF property. and Is based uIon TINS supYo-
sitiOn. which may be more or les, founded "a
fact, hut which has at ali events been adopted,
thar when the road WIS originally formed tho
proprietors on either side contributed portion
OF his land for the purpose
PRIVILEGES ACQUIRED.
"If the owner Of land lay out and establish
town and makes and exhibits plan OF the town
with various plats Of spare ground. such as
streets alleys, Quays, etc. ana sell, the lots
with clear reference 20 that plan. the purchasers
OF lots acquire as appure nant to Their lois every
easement, privilege ana advantage "hich lhc
plan represents as belonging 10 them A. plai
OF the town or to their oWn,r' as cilHens OF the
town. n.,..
mere right that such purchasers may uso these
streets or other public places according TO- iheir
appropriate purposes. but rlght Fcsllns IN thc
purchasers that all persons whatsoever, as their
occasion may require or lnvert. may use them:
and that they shall be forever open to the use OF
the public free from all claim or interference soi
the proprietOrs inconsistent with such use
The highway Is, generally speaking, nothing
but an easement comprehenuing merely the
right of all the individuals in community 10
pass and repass, with the incidental right OF the
This easement does not comprehend any inter
est in the soil. nor give the pubic the legal DOS
session of IL The right of freehold Is rot trou-
bled by establishing a highway. but continues
In the original owner of the land IN the same
manner II was before the highway was e5taD-
lished, subject to the easement.
RIGHTs OF TIE PUBLIC.
THE public has the right to pass and to rcpass
and 10 repair, and ANYTHING which ohsiructs the
use ofthe way Is a public nuisance; subject TO
this easement the exclusive ownership of the
soil. the freehold, and oil the profits remain IN
him who owned the ground before the highway
was laid out over 1t, and no may maintain tres
pass or waste, or recover possession subject 10
the easement The heritage belongs eX-
slusively 10 the owner Of the soil and
he may maintain trespass against one
who puts his cattle IN the highway to Craze, or
against one who places distractions there, or
who instead OF passing along II, remains stand
ing there, as a strolllng musician, refusing 10
dep.Tt. no. o.,roo. doa;oo.od - ,,,,l;.
tod effg I'M kos M
difference u to the ownership OF the soil; tie
title remains IN the owner and except where
there has been regular conveyance or a leglsla-
tive transfer is never IN the corporation
These principles are well settled IN most Of
the States OF the Union, and IN none more firmly
"a public highway only vests in the Common
wealth right of passage; hut the freehold and
the profits such as trees upon II ana mines
has right to all remedies for the freehold, sub
1eot, however, to the easement.
PUBLIC HIGHWAY.
1T can hardly be supposed that whore lot
holder dedicated q part of his lot 10 public
street. to be used AS public highway, he con-
templated that il would be occupied and used
by a railroad company for its track, thus inter
fering with the loading and unloading of vein,
cles, impeding free access across the street and
endangering the bpiidng, ~ passing engines =,
use the street Tor the purposes originally con-
templated.
citing Williams against the New York Cen
trail railroad company, 10 New 1OIh, ", Mntre
il was held that the dedication of land to the
use Of the public as public highway does not
preclude the owner OF the fee subject TO the pub
lie easement, from maintaining an action
against the railroad company, which without this
consent or an appraisal of his damages, enters
upon and occupies such highway with the track
And holding that such an appropriation of
The highway by the railroad company is the i'm
position of an additional burden upon and tax
ing OF the property OF the fee within the mean
ing Of the constitutional provision, which for
buds such taking without additional compensa-
ton; and that the company can derive, there
Tore, no title under the acts Of the Legislature,
and the license or consent 10 u use, inconsistent
with the private easement OF municipal or other
authorizes who represent the public AS TO such
rghts without the consent OF the owner OF the
fee or the appraisal or payment Of his damages
IN the mode prescribed by law.
HIGHWAY or STREAM
in Moth vs.. Moth. 6s y. Y. r.. 247, il is said
when lands are granted founded upon high
way or stream not naVigable unless by the terms
OF the grant or necessary implication the
highway or bed Of stream are excluded. title
will pass 10 the centre OF the highway or stream.
The reason Is obvious. Ordinarily, IN a con
veyance OF that kind there Is no purpose TO he
served IN the retention by the grantoT of a mar
row strip of land along the boundaries of the
land conveyed, and between IL and the lands Of
other proprlotors, or in the bed of stream and
the intent TO grant them will be presumed,
therefore, by, a CONVEYANCE OF the adjacent
lands bounded by or upon or along such high
way or stream OF other equivalent phrase.
ut depends upon the intent OF the parties TO
DC SathcitN from the description or the prem
ises read III connection with other parts Of tho
deed, and by reference 10 the situation OF the
lands and the condition and relation OF the par
ties TO those and other lands IN the vicinity,
whether the grant extends 70 the centre Of tho
road or stream
This Is the recognized rule Of Interpretation.
ana TVS aQueston OF interpretationand intent. .
LOCATION oF THE LAND.
Quoting the language Of Borcous. G ! I,
feIley NJ. Chandler, . Mass. s54 Judge Tscv
says; 49, 's0 lazy
BY the location Of way over the land NJ any
person the public have acquired an easement
whleh the owner of the land cannot lawfully ex
tlnguish or unreasonably interrupt Enf he
eOll ana freehold remain IN the owner although
eheumbered with way, and every use to which
VIC anu may he applied, and all the profits
Nhieh may be derived from IL consistently with
,he continuance OF the easement. the owner can
lawfully clam 0""'' V"'i
1T is. therefore, clear that tba soil ., A.
street in question, dedicated in HE manner ' az
ready stated, is the property of The spnelIsnt ~
US equally well settled by the sutbority "a
VIC nave nave already cited that This priyass
property cannot be taken for public usesercent
uQQp Just compensation N ''''AVoP'
a. western Union Telegraph Company ys VII.
naps' SUPRA AIT ., sec H. Const OF Va.
ADDITIONAL sERyIrUDE.
He NAV maintain ejectment for the land TINS
cpcumbefcd, ana u the way be Discontinued he
anal hold the land free from encum berance
We bsye Sonsiaefod some Of the Virginia
eoeess 70 which may be added the recent cssc al