Year: 1873

Tue pun pose VI requiring HlS pullulDG, on
an adjoining lot, lat all times when neces-
sary,' the grantee is entitled to reasonable
notice of the intention of the grantor to
make repairs, before being liable to an
action for obstucting the right of way For
it is not right of way at all times


A grant of fright of way NAV be pre-
sumed from an uninterrupted adverse pos
session for more than twenty years uneX-
planned.


ordinarily, the same rules apply to gov
ern the use of way, claimed and acquired
by prescription those acquired under
general grant by express terms in a deed.


If it appears that the way has been used
by the permission of the owner Of the soil,
and not by adverse possession, then no
length of time establishes the right to con-
tinue the easement, against the consent Of
the owner of the soil.


1t has been said that the three modes of
acquiring and holding rights of way" to
Wit, by prescription, and by necessity, re-
solve themselves into one. They are all
derived from the voluntary grant OF the pro-
prietor of the fee


Prescription presupposes and is evidence
OF a previous grant


Necessity is only circumstance resorted
to tor the purpose of showing the intention
of the parties and raising an implication of
grant. The only difference between the
two is, that one is granted in express words,
and the other only by Implication.


And way by necessity created, by an
implied grant, exists only when the person
claiming it has no mode of passing from his
land to 4 public road without it. And
whenever the situation OF his land is
changed, so that by means of new road,
or other cause, another way is provided by
which he has access to a public street with
out trespassing upon the land of another.
then the way of necessity ceases to exist,
ana he must adopt another way Of approach
to his land.


The right of way may be located by the
owner Of the land. when claimed as a way
of necessity, but it must be reasonable
one; it will be remembered that convenience
alone will not create right for way


And when once located it is not a shift
ing way, but the parties are bound by it
.he same as though there was an express
grant


A right OF way acquired by statute is
that which is provided for, similar to the
laying out OF public ways. and is conferred
by municipal authorities, and will be con-
fined strictly to the uses for which it was
laid out.


All rights of way, acquired from what
ever mode, must he used in accordance with
the specifications of the grant or the neces-
sities requiring its use Whether, after Il
way has been once located, it can be
changed so that by parol agreement a new
one can be substituted which will confer
an absolute right to use it the same as the
former way was used, and not subject to
revocation, has been somewhat discussed.
and the principle upon which it would seem
to be governed would forbid that any
such right should exist, short of the con-
tinned, open, uninterrupted adverse use
twenty years. But the right TO use the
former way would not be lost until right
to the new way had been established.


The mere non-user Of a right of way,
created by grant, for 4 period less than
twenty years, is not, of itself sufficient to
defeat the right to use the way. There
must be some act by which it could reason
ably be inferred there was an intention to
abandon the way.


The natural question in all such cases is,
whether there was an intention to abandon
the easement before enjoyed or whether
the non-user is imputabe 10 some other
Cause.


In whatever way the right herein referred
TO may be acquired it becomes quite impor-
tant that the claimant should understand the
full extent of such right


doubt not my own experience has been
similar to that of the majority of the mem
DefS OF nv prOfeSSlOn in teaching me that
a great part of the litigatOns in our courts
concerning real estate, grows ont of claims
of ''rightS of way" which, of themselves,
are uncertain, either from the ambiguous
language used by conveyances in deeds.
where an express grant is made, or from
the doubt which may arise as to what eX-
tent and for what purposes such right is
claimed, and if claimed whether it has been
acquired.


Having considered to some extent the
most important practical question that sug-
gest themselves relating to real estate,
there are some other considerations relating
to personal property which it may not be
Improbable to examine.


SALE OF Personal PROPERTY.


What constitutes sale so as to vest the
title OF the property in the vendee. is some
tllneS question not altogether free from
doubt


AS between the vendee and third persons.
the general rule that there must be de-
livery to, and acceptance by the vendee, is
a safe one to follow.


As between the vendor and vendee. no
delivery is necessary to vest the title in the
vendee. In cases where a delivery is neces-
Sary, what amounts to a delivery? Will
anything short of an actual marual posses
sion OF the article be sufficient? In cases
where the nature of the property is such
ana the same is so situated that a personal
possession Of it is impracticable or ncon-
Venlent, then the mere pointing out or
showing the same to the vendee. the vendor
being required to do no further act in re-
spect to 1t, has been held to be good de-
livery.


Where certain number of articles are
sold under an entire contract, and for one
gross sum. delivery of part has been
held to amount to delivery of the whole,
although scattered in different places


But where certain quantity Of articles
are sold to be taken from larger quantity
by being measured or weighed, a delivery
OF part of the amount sold does not oper-
ate as delivery of the whole, so as to vest
the title in the vendee as against third per-
sons, unless the whole amount sold has
peen separated from the larger quantity.


oellvery OF key to a storehouse in
which the property sold is stored, with the
intent to surrender the possession of the
property will amount to delivery.


AND where the owner of horse, kept at
a livery stable, agreed at another place to
sell it, received the price from the pur-
CHASER, anu at the same time the seller paid
the stable for the previous keeping of the
horse and the purchaser directed him to
continue to keep it and feed 1t on hay, and
promises to pay him therefor, and the
stabler afterwards removed the horse from
the stall in which it had been, to another
more convenient for feeding with hay.
Held, in the absence of fraud, these facts
showed delivery of the horse against a
subsequent attaching creditor of the seller


Where quantity of grass standing upon
a lot Of land was sold early in the season,
and before it was fit to cut and handful
OF growing grass was plucked and delivered
to the purchaser in the field, in part execu-
tIon OF the contract Of sale of the whole
crop, it was held not to be a good symboli
cal delivery of the grass. The grass, until
severed from the land, was not personality
but part of the realty, and therefore could
not be delivered as personal property


The same rule undoubtedly applies to a
contract for wood and timber standing upon
land OF vendor. There can be no delivery
suniclent to pass the title to the vendee. as
against one to whom the land had been con
Veyed by deed without reserve, or against
an attachlng creditor, unless the wood and
Ciinoer had neen severed from the land.


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