Los Angeles herald., 1906-12-15
PROPERTY OWNERS
FAVOR SUBWAYS
Continued from Page One,

Continued from Page One)
lic." $50 is a road over street.)-El-
lott on Roads Sec. All.
"A public highway is an easement;
and by taking and accepting land
therefor the public acquire only the
right of way and the incidents neces-
sary to enjoying and maintaining the
same. The owner of the fee over which
the highway is laid retains his rights
in the soil for all purposes which are
consistent with the full enjoyment of
the easement by the public Wright
VS. Austin, 143 Cal. 236.
Un this case an injunction was grant,
ed the owner of the fee against the
sinking of wells on the right of way
to obtain water for sprinkling pur-
poses.)
by taking or accepting land for a
highway, the public acquire only the
right of way, and the incidents neces-
sary to enjoying and maintaining the
same, subject to the regulations in this
and the civil code provided" Pol. code,
section 2631.
I'm condemning for a right of way, no
more land and no greater interest in it
can be taken by the railroad company
than the public requires, which is or
dinarily the surface of the land. What
ever minerals lie underneath the right
whether such minerals are in stu, I'M
derlying this right of way, while he may
not enter upon it to take them (because
the nature of the easement requires ex-
elusive possession of the surface by the
company he can driftt from tunnels
sunk upon his adjoining land and do so,
leaving, however, sufficient support for
the easement imposed. Subject to this
support, the right of the owner of the
loT fn fol- oil
meath the right of way is absolute"
So. Pac. r. r. Co. VS.. S. F. Sav. Union,
LAG Cal, 290. 294
The abutters on a public suburban
highway have a right therein distinct
from the public, which the legislature
cannot take away, except to appropri-
ate it to a public use upon payment of
compensation. The public has no inter-
est in such highway other than the
right to pass and repass over it," Kin
caid VS.. Indianapolis Natural Gas Co.,
121 Ind, 577; 10 Am. ST., 113.
Subject to the right of the public,
the owner of the fee of a rural road
retains all right and interest in it. He
remains the owner, and as such, his
rights are very comprehensive" Brook
yille etc. Co. VS.. Butler, 81 Ind, 1874;
Shelbyville etc. T. P. Co. VS.. Green, 80
Ind, 2O5; Dovaston VS.. Payne, 2 H.
Bl., 527; Peck VS.. Smith, / Conn, 1O3
Trustees etc. Society VS.. Auburn etc.
r. r. Co., 3 Hill, SGT.
The city of Minneapolis agreed with
contractors who were to grade street
that the contractors might remove and
appropriate to their own use all the
stone in that part of the street which
was being graded, and it was held that
the city became liable on the principle
that the stone belonged to the owner of
the fee.
Rich VS.. City of Minneapolis 81 Mimi,
423.
In the case of Tucker ct al. VS.. Eldred
ct al, Rhode ISL, 40, 4O5, the court,
speaking through Brayton, j., said:
by the general rules of law the pub
Tic nave an easement upon the land ly-
ing within the lines OF the highway
Notwithstanding the laying out of the
highway and the condemnation of land
TO the use of the public for travel, the
title to the soil, and all the profits there
OF consistent with the existence of the
easement, remain in the original own
ers. He has a right to the freehold and
TO all the profits which may be derived
from 1t, consistently with the right Of
passage of the public-to all mines be-
meath the surface, to all trees, grass
and pasturage upon and above the sur
face" Goodtitle VS.. Alker, Burr, 1888;
otekSns vs. WhlSlleft IL East, 81; Doe
VS.. Wilkinson. b. & c., 413; Perley VS..
Chandler, Mass, Asa; Jackson VS..
Hathaway, Is Johns, 447; Godney VS..
Earl, 10 Wend, 9S.
In Denniston VS.. Clark, 1876 Mass, 216,
22l, Grey, c. j., said:
AS stated by Chief Justice Parker. I'm
the passage which is made the founda-
tion OF the learned argument of plaint-
IN: 1T Is too clear 10 require any dis
cussion that the proprietor of the land.
over which a public highway has been
laid, retains his right in the soil for all
purposes which are consistent with the
enjoyment Of the easement acquired by
the public or by any corporation by
authority derived constitutionaIly from
the legislature Tucker VS.. Tower. Q
Pickering, 109 and 11O.
THE owner of land, therefore. re-
tains his title i'm trees, grass, growing
crops, buildings and fences standing in
the highway at the time of the laying
out (unless he fails TO remove them
within reasonable time after notice 10
do 500, as well as any mines or quar-
ries beneath, which are not part Of the
surface OF the earth upon and of which
the highway Is made. Gen. SITS. c. 49,
l3, 80; GOodtitle VS.. Alker Kenyon 427
437, s. G. / Burr, 1888, 1874; Adams vs.
Emerson, Pickering, "a; Common
wealth vs.. Noxon, l2l Mass. AZ; Ticker