his immediate employer, and exercises no authority over his actions. In that case, the plaintiff was injured by a quantity of lime deposited in the highroad. The defendant, having purchased a house by the road side, (but which he had never occupied,) contracted with a surveyor to put it in repair for a stipulated sum; a carpenter having a contract under the surveyor to do the whole business, employed a bricklayer under him, and he again contracted for a quantity of lime with a limeburner, by whose servant the lime in question was laid in the road. The defendant was held to be liable. "Where a civil injury of the kind now complained of has been sustained," it was remarked, "the remedy ought to be obvious, and the person injured should have only to discover the owner of the house which was the occasion of the mischief; not be compelled to enter into the concerns between the owner and other persons, the inconvenience of which would be more heavily felt than any which can arise from a circuity of action." And Rooke, J., said: "He who has work going on for his own benefit, and on his own premises, must be civilly answerable for the acts of those whom he employs. It shall be intended by the Court, that he has a control over all those persons who work on his premises, and he shall not be allowed to discharge himself from that intendment by any act or contract of his own. He ought to reserve such control, and if he deprive himself of it, the law will not permit him to take advantage of that circumstance, in order to screen himself from an action.”1

1 Bush v. Steinman, 1 Bos. & Pul. R. 404, citing Michael v. Alestree, 2 Lev. R. 172; Stone v. Cartwright, 6 Term R. 411; Littledale v. Lord Lonsdale, 2 H. Bl. R. 267; and see Bailey v. Mayor of New York, 3 Hill, (N. Y.) R. 531; 2 Denio, (N. Y.) R. 433.

1. The Rights of the Owner of the Fee.

§ 301. AT common law, as we have already had frequent occasion to remark, a highway is simply an easement or servitude, carrying with it, as its incidents, the right to use the soil for the purposes of repair and improvement, and, in cities, for the more general purposes of sewerage, the distribution of light and water, and the furtherance of public morality, health, trade, and convenience. The owner of the land, over which the highway passes, retains the fee and all rights of property not incompatible with the public enjoyment, and, whenever the highway is abandoned or lost, recovers his original unencumbered dominion.1 He may sell the land subject to the ease

1 Roll. Abr. 392; Comyn's Dig. tit. Chimin. (A. 2.); Lade v. Shephard, 2 Str. 1004; Goodtitle v. Alker, 1 Burr. 133; Gore v. West, 7 Taunt. 39; Cooke v. Green, 11 Price, 736; Doe d. Pring v. Pearsy, 7 B. & Cr. 304; Cro. Jac. 190; 4 Bacon's Abr. 668; Maynell v. Surtees, 31 Eng. Law & Eq. R. 485 ; United States v. Harris, 1 Sumner, (Cir. Ct.) R. 21; Chatham v. Brainard, 11 Conn. R. 60; Harris v. Elliott, 10 Peters, (U. S.) R. 25; Howard v. Hutchinson, 1 Fairf. (Maine) R. 335; Bingham v. Doane, 9 Ham. (Ohio) R. 165 Kennedy v. Jones, 11 Alabama R. 63; Harrington v. County Commissioners of Berkshire, 22 Pick. (Mass.) R. 263; Barclay v. Howell's Lessee, 6 Peters, (U. S.) R. 498. In Buel v. Clark, 1 Root, (Conn.) R. 49, the question was, whether lands left for a highway by the proprietors in the original laying out of

ment; and a deed of a farm of land,"reserving only the highway through the said farm," conveys the land subject only to the easement."

§ 302. "The owner of the soil," said Foster, J., in Goodtitle v. Alker,2 «has right to all above and under ground, except only the right of passage for the king and his people." And Mansfield, J., in the same case, quoting from Rolle's Abridgment, remarked, "That the king has nothing but the passage for himself and his people; but the freehold and all profits belong to the owner of the soil, so do all the trees upon it and mines under it, which may be extremely valuable. The owner may carry water in pipes under it. The owner may get his soil discharged of the servitude or easement of a way over it, by a writ of ad quod damnum. It is like the property in a market or fair. There is no reason why he should not have a right to all remedies for the freehold ; subject still, indeed, to the servitude or easement. An assize would lie, if he should be disseized of it; an action of trespass would lie for an injury done to it." So it was held, that the trustees of a turnpike road could not consent to the turning of a public footpath into their highway, because, said Kenyon, C. J., "The soil was not vested in them, but remained in the persons who were entitled to it before the act passed by which they were appointed. The trustees have only the control of the highway.' In another case the plaintiff had declared generally for a trespass on his close called "Shepherd's Lane." The trespass proved was, that the defendant had depastured

their lots, that are not wanted for the use of a highway, belong to the proprietors of the town, and may be taken up by the proprietors and laid out into lots ; or whether they belong to the town-by Court and jury they belong to the proprietors,―and verdict and judgment was for the plaintiff to recover accordingly. Brown v. Freeman, Ib. 118.

1 Fairfield v. Williams, 4 Mass. R. 427; Whitbeck v. Cook, 15 Johns. (N. Y.) R. 483; Peck v. Smith, 1 Conn. R. 103; Hart v. Chalker, 5 Ib. 311.

2 Goodtitle v. Alker, 1 Burr, 133.

3 Davison v. Gill, 1 East, R. 64.

his cattle all along the lane, as well in the parts opposite to the plaintiff's close, as in other parts; and a motion was made to set aside the verdict, because, at most, he was only entitled to the soil and freehold of half the lane opposite to his own enclosures; but, per Curiam: "The plaintiff had an exclusive right to part of Shepherd's Lane;' and if the defendant meant to drive him to confine the trespass complained of upon the face of his declaration to that part of the lane which was his, he should have pleaded soil and freehold in another, which would have obliged the plaintiff to new assign.”1

6

§ 303. The principles of the common law, in this respect, have been recognized and adopted by the American courts. The language of Parsons, Ch. J., in Perley v. Chandler,2 is an exact statement of these principles. "By the location of a way over the land of any person," said that learned jurist, "the public have acquired an easement, which the owner of the land cannot lawfully extinguish or unreasonably interrupt. But the soil and freehold remain in the owner, although encumbered with a way. And every use to which the land may be applied, and all the profits which may be derived from it, consistently with the continuance of the easement, the can lawfully claim. He may maintain ejectment for the land thus encumbered; and if the way be discontinued, he shall hold the land free from the encumbrance. Upon these principles there can be no doubt but that the owner of the land can sink a drain, or any watercourse below the surface of his land covered with a way, so as not to deprive the public of their easement. And it is a common practice for the owners of water-mills, or of sites for water-mills, to sink watercourses for the use of their mills in their own land under highways, care being taken to cover the watercourses sufficiently,

owner

1 Steevens t. Whistler, 11 East, R. 51; Doe d. Jackson v. Wilkinson, 3 B. & Cr. 413.

2 Perley v. Chandler, 6 Mass. R. 454.

so that the highways remain safe and convenient for passengers." "If a highway be located over watercourses, either natural or artificial, the public cannot shut up these courses, but may make the road over them by the aid of bridges. But when a way has been located over private land, if the owner should afterwards open a watercourse across the way, it will be his duty, at his own expense, to make and keep in repair a way over the watercourse, for the convenience of the public; and if he should neglect to do it, he may be indicted for the nuisance; and upon the conviction, the nuisance may be prostrated by filling up the watercourse, if he shall not make a convenient way over it." So it has been held by the same Court, that the herbage belongs exclusively to the owner of the soil and he may maintain trespass against one who puts his cattle in the highway to graze. And it was said by Putnam, J., in delivering the opinion of the Court: "It is not lawful, therefore, for the public to put their cattle into the highway to graze. For wherever one would justify taking the property of another, in virtue of a license or of a way, he must plead and prove that he pursued the authority, or used the way as a way and not for any other purpose.1 So in 22 Edw. IV. 8, pl. 24, it was said by one of the Court, that if one drive a herd of cattle along the highway, where trees, or wheat, or any other kind of corn is growing, if one of the beasts take a parcel of the corn, if it be against the will of the driver, he may justify; for the law will intend that a man cannot govern them at all times as he would; but if he permitted them or continued them, &c., then it is otherwise." 2

1 Dovaston v. Payne, 2 H. Bl. R. 527.

2 Stackpole v. Healy, 16 Mass. R. 33; Cool v. Crommet, 1 Shep. (Maine) R. 250. In Avery v. Maxwell, 4 N. Hamp. R. 36, the same doctrine was announced. But in that case it was contended that the common law was in this respect altered by the statute of January 14, 1795, entitled, "An act to prevent damage being done by horses, mules, and jacks," which prohibits horses and mules from going at large without being fettered with good and sufficient