The government class book / Designed for the instruction of youth in the principles of constitutional government and the rights and duties of citizens.

by Andrew W. Young

Chapter LII.

Incorporeal Hereditaments. Right of Way; Aquatic Rights, &c.

§1. The term incorporeal hereditaments may, to some readers, need explanation. A hereditament is a thing capable of being inherited. Land, and all things attached to it by the course of nature or the hands of men, as trees, herbage, water, buildings, &c., which are comprehended in the term real estate, are corporeal hereditaments. Incorporeal hereditaments are inheritable rights which grow out of corporeal inheritances, or which consist in their enjoyment; as the right of pasturing a common; a right of passage over the land of another; a right to the use of waters, sometimes called aquatic rights, &c.

§2. A right of way is a right of private passage over another man's ground. This right is sometimes granted by the owner of the soil; and to make it a freehold right, it must be created by deed, though it be only an easement upon the land of another, and not an interest in the land itself. An easement is, in general, an accommodation. In law, it is any privilege or convenience which one has of another, by grant or otherwise, as a right of way, &c. By the grant of an easement, the grantee acquires no other right than what is necessary to the fair enjoyment of the privilege.

§3. If it is a mere personal right, it can be enjoyed only by the owner of the right, and when he dies, the right dies with him. But a right of way belonging to an estate may be conveyed when the land is sold. Thus, if a man owns lot A and lot B, and he used a way from lot A, over lot B, to a mill, or to a river; and if he sells lot A with all ways and easements, the grantee will have the same privilege of passing over lot B as the grantor had.

§4. A right of way may arise from necessity. If a man sells a part of his land, and there is no other way to the remaining part, he is entitled to a right of way to it over the land sold. And if a man sells land wholly surrounded by his own land, the purchaser is entitled to a right of way to it over the other's ground, even though no such right is reserved. The right of way passes to the purchaser, as necessarily incident to the grant, or included in it.

§5. A man having license to conduct lead pipes through the land of another, may enter on the land, and dig therein, to mend the pipes. The general rule is, that when the use of a thing is granted, every thing is granted which is necessary to the enjoyment of its use.

§6. A person has a temporary right of way over land adjoining a public highway, if the highway is out of repair, or is obstructed by snow, a flood, or otherwise. But the right of going upon adjoining lands does not apply to private ways. A person having a right to a private way over another's land, has no right to go upon adjoining land, even though the private way is impassable.

§7. A right of way sometimes arises by prescription; which is the right or title to a thing derived from long use and enjoyment. Such is the right which, by common law, a man acquires to land which has been peaceably held by himself, or by himself and preceding owners, for twenty years. Although the first occupancy was obtained without grant, the long free use of the land is, in law, equivalent to a grant, and implies a valid title. In some states, shorter periods have been fixed by statute in which a right by prescription may be obtained. In Pennsylvania, and Ohio, the period is fixed at twenty-one years.

§8. The owners of land adjoining highways, have a right to the soil to the centre of the road: the public have only a right of passage while the road is continued. The owners of the soil may maintain a suit against any person who encroaches upon the road, or digs up the soil, or cuts down trees growing on the side of the road. They may carry water in pipes under it, and have every use of it that does not interfere with the rights of the public.

§9. Every proprietor of lands adjoining a stream, has naturally an equal right to the use of the water that flows in the stream adjacent to his lands, "as it was wont to run." Each may use the water while it runs upon his own land; but he can not unreasonably detain it, or give it another direction; and he must return it to its ordinary channel when it leaves his estate. He can not, by dams or any obstruction, cause the water injuriously to overflow the grounds of the neighbor above him, nor so use or apply it as materially to injure his neighbor below him.

§10. But this right to the use of waters, as an easement to the land, may be acquired and lost, or enlarged and abridged, by prescription. A man may diminish the quantity of the water, or corrupt its quality, by the exercise of certain trades; and by such use of the water for a sufficient length of time, he is in law presumed to have acquired it by grant: and this presumption is the foundation of his right by prescription. The time of such use and enjoyment of water necessary to establish such right is twenty years, except in states in which a different period is fixed by statute. (§7.)

§11. It is a general and established doctrine, that an exclusive and uninterrupted enjoyment of water, or of light, or of any other easement, in any particular way, for twenty years, or for any other period which in any particular state is the established period of limitation, is a sufficient enjoyment to raise a presumption of title as against the right of any other person. The enjoyment is deemed to have been uninterrupted, whether it has been continued from ancestor to heir, and from seller to buyer; or whether the use has been enjoyed during the entire period by one person.

§12. As a right may be acquired by use, so it may be lost by disuse; and as an enjoyment for twenty years, or such other period as is prescribed by statute, is necessary to establish a right; an absolute discontinuance of the use for such period will raise the presumption that the right has been released or extinguished. Thus a title to land may pass from its actual owner by non-occupancy for the period above stated; and a title to it may be acquired by an undisturbed occupant who shall hold it in peaceable and uninterrupted possession for the same period.