J., to exclude the flats between high and low-water mark, although, by a colonial ordinance, recognized as law, grants bounded generally upon tide-waters, carried the grantee to lowwater mark. And by the Supreme Court of the United States, in a cession of lands from Georgia to the United States, one boundary of which was described as "beginning on the eastern bank of the Chattahoochee River, running thence up the said Chattahoochee River, and along the western bank thereof," it was held, that the entire river was excluded from the cession.1 Indeed, it may be stated generally, that when the boundary given in a deed has physical extent, as a road, lane, street, fence, creek, or river, the grantee takes to the centre of the object so given, unless by some specific limitation of the grant the object is excluded.

4. Actions by the Owner of the Fee.

§ 319. It is now perfectly well-settled, that the owner of the fee is entitled to protect his rights in the soil by every species of action and remedy which would be open to him if his land were disencumbered of the way. In Goodtitle v. Alker,2 which was ejectment for land subject to a highway, it was urged by the defendant, that in a case at the Summer Assizes at Exeter, it had been held by Lord Hardwicke, "that no possession could be delivered of the soil of the highway; and, therefore, no ejectment would lie of it; and if it was a nuisance, the defendant might be indicted." But Lord Mansfield, putting this case out of the way entirely, as being so loosely remembered and imperfectly reported, as to deserve no regard, nor be at all clear and intelligible, said: “There is no reason why the plaintiff 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

1 Howard, et al. v. Ingersoll, 13 How. (U S.) R. 381.

2 Goodtitle v. Alker, 1 Burr, 133.

would lie for an injury done to it."-"I see no ground why the owner of the soil may not bring ejectment, as well as trespass. It would be very inconvenient to say that in this case he should have no specific legal remedy; and that his only relief should be repeated actions of damages, for trees and mines, saltsprings and other profits under ground. 'Tis true, indeed, that he must recover the land subject to the way; but surely he ought to have a specific remedy, to recover the land itself, notwithstanding its being subject to an easement upon it." The point thus decided, has been repeatedly reaffirmed in subsequent decisions.1 The correctness of Lord Mansfield's decision has, however, been questioned by no less an authority than the Supreme Court of the United States, and upon the very grounds which in that case were urged and overruled. The opinion in the case referred to, was delivered by Thompson, J. After alluding to the fact, that this doctrine of Lord Mansfield had crept into most of our elementary treatises, and been incidentally sanctioned by Judges, though never, to his knowledge, adopted in any case where it was the direct point in judgment, while it had been repudiated by the Supreme Court of Errors of Connecticut, he goes on to say, that the action cannot be sustained on principle, because the recovery of actual possession by the plaintiff would be wholly inconsistent with the admitted public right. "That right," he says, "consists in the uninterrupted enjoyment of the possession. The two rights are, therefore, incompatible with each other, and cannot stand together. The lessor of the plaintiff seeks specific relief,

1 Cooper v. Smith, 9 Serg. & R. (Penn.) R. 26; Alden v. Murdock, 13 Mass. R. 256; Bolling v. Mayor, &c. of Petersburg, 3 Rand. (Va.) R. 563; Thompson, et al. v. Proprietors of Androscoggin Bridge, 5 Greenl. (Maine) R. 62; 2 Selw. N. P. 728; 1 Saund. Pl. and Ev. 447; Dicta, S. P., per Sedgwick, J., in Commonwealth v. Peters, 2 Mass. R. 125; per Putnam, C. J., in Stackpole v. Healey, 16 Ib. 33; per Parsons, C. J., in Perley v. Chandler, 6 Id. 454; per Platt, J., in Jackson v. Hathaway, 15 Johns. (N. Y.) R. 447; 2 Smith's Leading Cases, (44 Law Lib.) 141.

The very

and to be put into the actual possession of the land. fruit of his action, therefore, if he avails himself of it, will subject him to an indictment for a nuisance; the private right of possession being in direct hostility with the easement or use to which the public are entitled; and as to the plaintiff's taking possession subject to the easement, it is utterly impracticable."

§ 320. It has been well remarked that the action, in which this opinion was delivered, was brought to test the right of the public to an easement in the land and not to recover the land subject to the easement, and to the former point alone was the judgment of the Court invoked, and that, therefore, the remarks of Mr. Justice Thompson must be regarded as the extra-judicial dicta of an individual.1 It is certainly manifest that the remarks were made upon a very imperfect review of the authorities, if not upon some misapprehension of principle. In regard to the compatibility of the public enjoyment with individual possession, the reasoning of Swift, J., in Peck v. Smith, would seem to be perfectly conclusive. An easement is a privilege, service, or convenience in the estate of another, by grant or prescription, and comprises no interest in the thing itself. It supposes that different rights in the use of the same thing may coexist in different persons; and nothing is more common than for one to have an easement in the land of another, who has an estate in fee and is in actual possession. A private right of way is such an easement. It is compatible with the right of the owner of the fee to depasture and mow it; take the trees and any thing growing on it; and hold it in possession for these purposes. If disseized by the grantee of the easement, he can recover possession in ejectment, there being no inconsistency in the recovery subject to the private right of way. The principle is precisely the same in regard to the right of the public in the soil of a highway; its right is but an easement, and, subject to that, it no more

1 2 Smith's Leading Cases, Wallace's note, (44 Law Library,) p. 141.

conflicts with the right of the public in a highway, than with that of an individual in a private way, for the owner of the fee to recover possession.1

5. Abandonment and Reversion.

§ 321. At common law, the doctrine of the earlier cases is, that there can be no loss of the public right by mere non-user. A highway once established must always remain such until changed or discontinued by process of law. In Rex v. Ward,2 it was decided that an ancient highway cannot be changed or stopped up without the king's license first obtained upon the writ ad quod damnum, and on inquisition found thereon that such a change will not be prejudicial to the public; and that if any one change a highway without such authority, he may stop the new way whenever he pleases; that by the laying out the subjects have not such an interest therein as that they may justify their going there; nor is it any such way that the inhabitants are bound to repair or maintain it, or, under the ancient law, to watch there or to make amends if any robbery be there committed. And it is said, that in an action of trespass, brought by the owner of the land against those who shall go over such new way, the defendants ought to show specially, by way of excuse, how the old way was obstructed and the new one set out. So, in Fowler v. Sanders, it was held, that a right to narrow a highway by laying logs of wood thereon for fuel in front of an ancient house, being a nuisance,

3

1 Per Swift, J., in Peck v. Smith, 1 Conn. R. 135; and see Read v. Leeds, 19 Conn. R. 182.

2 Rex v. Ward, Cro. Car. 266, pl. 66; and see Payne v. Partridge, 1 Salk. 12, pl. 1, in which it was held, that the owner of a ferry cannot discontinue it and build a bridge in its stead, without license obtained under a writ of ad quod

damnum.

3 Hawk. P. C. C. 76, § 4; and see Thomas v. Conell, Vaugh. 341.

4 Fowler v. Sanders, Cro. Jac. 446, recognized in Simmons v. Cornell, 1 R. I. Rep. 514.

could not be acquired by prescription. In Selwyn's Nisi Prius, it is said to have been the opinion of Gibbs, Justice, announced in an unreported case, that even if a highway has not been used, no length of time will be sufficient to prevent the king's subjects from using the way again if they think proper.1

3

§ 322. In regard to navigable rivers, the same principle has been frequently asserted. Thus, it has been expressly held, that twenty years' possession of the water of a public navigable river at a given level is not conclusive against the public. “An act of Parliament," said Holroyd, J., "is the only means by which such a right can be determined.2 In Weld v. Hornby, a party, who had been entitled for two centuries to a weir of brushwood for taking fish in a public river, in 1766 erected a stone weir instead thereof across two thirds of the stream, and, in 1784, carried it across the remaining part of the river. An action for obstruction having been brought between nineteen and twenty years from 1784, the jury, under the direction of the Court, that from the lapse of time they might infer a legal commencement of the right, returned a verdict for the defendant. Lord Ellenborough, in setting aside the verdict, remarked: "The right of the defendant to have a stone weir is plainly founded on encroachment. Weirs across rivers were from the earliest times considered nuisances; and however twenty years' acquiescence may bind parties whose private rights only are affected, yet the public have an interest in the suppression of public nuisances, though of longer standing." Again, in the case of Chad v. Tilsed, it was considered that forty years usage, unsupported by other evidence, would not be sufficient to establish an exclusive right

4

1 2 Selwyn's N. P., by Wharton, (4th ed.) p. 503, citing Rex v. St. James. 2 Vooght v. Winch, 2 B. & Ald. 662.

3 Weld ». Hornby, 7 East, 195.

4 Chad v. Tilsed, 2 B. & B. 403; Best, on Presumptions of Law and Fact, p. 110.