legislature provides for the acquisition of the right of way over mining land, upon condition of its buying the mine, and it fails to pay the mine owner therefor, he is held to possess his property intact, without regard to the railroad company's surface possession, and it would not only have to pay the original compensation, but damages to the mine owner as well.1

§ 218. Same Hydrostatic pressure. Where the surface is in part supported by the pressure of a water body, such hydrostatic force would be recognized as a necessary factor to the enjoyment of his property rights by the surface owner and a removal of such water body by the subjacent owner would be prevented if likely to result in a subsidence of the surface. But the owner of land through which an underground water-course flows, has no vested right in such water; an adjacent owner can mine his land

the surface sold, it was found that the railroad interfered with its extension in that direction. But there being no reservation or provision for such inconvenience at the time of the sale of the surface, it was held, that the owner of the mine was not entitled to damages, and was bound so to work as not to interfere with the road." Rex v. Leeds & Selby R. W. Co., 3 A & E. 686; M. M. D. 306,

1 Bagnall v. London & N. W. R. Co., 1 H. & C. 544; affirming 7 H. & N. 723. Although a railroad company has but an easement of right of way, a mine owner will be enjoined, who mines in such a manner as to cause the railroad to subside. C. & A. R. R. Co. v. Brandon, 81 Mo. App. 1. Where title to railroad right of way is acquired by condemna. tion proceedings, the title to such of the mineral as is necessary to be excavated for the roadbed is in the railroad, but the mineral below the grade remains in the landowner. Evans v. Haefner, a strong opinion, by Judge Scott, 29 Mo. 141. Railroad gets only such title to mineral as is necessary to support the surface. Searle v. L. & B. Co., 33 Pa. St. 57; 5 M. M. R. 353.

2 Elliott v. N. E. Ry. Co., 7 H. L. Cas. 333; N. E. Ry. Co. v. Elliott, 30 L. J. Ch. 160; s. c. 32 Id. 402; 7 H. L. Cas. 333; Elwell v. Crowther, 31 Beav. 163.

in the usual way, and if in so doing he drains away the water from his neighbor, the latter is without remedy.1

§ 219. Right of way - A · Incident to right to mine. grant of the right to take mineral or rock from the land of a mine or quarry owner, implies the right to carry the mineral or stone across such land. It is not necessary that the most direct way be established, but only that a reasonably direct route be followed, or one that a reasonably prudent person might have constructed over his own land. If a right of way is granted for a specific purpose, however, as for agricultural purposes, it could not rightfully be used for other purposes, such as the carriage of minerals. A way should not be constructed for purposes of mere malice, and, if it is, the landowner can maintain an action for damages.

1 Acton v. Blundell, 12 M. & W. 324; Bl. & Weeks Ld. Cas. 758.

2 Clark v. R. R. Co., 28 Vt. 103.

3 Richards v. Richards, 1 Johnson (Eng.), 255.

4 Abson v. Fenton, 1 B. & C. 195.

5 Cowling v. Higginson, 4 M. & W. 245.

Stafford v. Coyney, 7 B. &

C. 257. "A purchaser of land takes the same subject to a right of way thereover by necessity, existing at the time of purchase." Fairchild v. Stewart, 89 N. W. 1075. "Where the description of a right of way is indefinite, the exercise of the easement in a particular manner with the consent of the grantor renders it fixed and certain." Davis v. Watson, 89 Mo. App. 15.

6 Bayfield v. Parker, 13 East, 200. “The right of possession of a reasonable amount of surface ground is necessarily implied in the lease of an oil well." Karus v. Tanner, 66 Pa. St. 297; M. M. D. 198. The following cases recognize the right of the mineral owner to reasonable use of surface. Rowbotham v. Wilson, 8 H. L. Ca. 348; Wardell v. Watson, 93 Mo. 107; Chartiers Coal Co. v. Mellon, 152 Pa. St. 286; Lynch v. Coviglio, 17 Utah, 106; 20 Am. & Eng. Enc. Law (2 Ed.), 775 et sub. The extent of surface necessary is question of fact for jury. Williams v. Gibson, 84 Ala. 228. As to right of owner of way to break down barrier, see McEwan v. Baker, 89 Ill. App. 271. And for measure of damage for injury to right, see Fleming v. B. & C. Co. (W. Va., 1902); 41 S. E. Rep. 168.

§ 220. Private right of way. - A right of way is said to be private when the right exists in favor of one or more private individuals, and is appurtenant to an estate owned by them, authorizing them to pass over the land of another in pursuit of some specific, or a general object.1 Such an easement may either be created by express grant, by prescription, or implied from circumstances surrounding the estate granted. But a way acquired for a particular purpose will not be extended so as to authorize the right to use the same for any other purpose, and an appropriation of the land for any other than the purpose for which the easement was acquired would render the owner of the dominant estate liable for damages to the owner of the servient estate, whether the burden on the servient estate had been materially increased or not.3

§ 221. Same-Way of necessity. - A way of necessity exists where the land granted is completely environed by land of the grantor, or partially by his land and the land of strangers. The law implies from these facts that a right of way over the grantor's land was granted to the grantee, as appurtenant to the estate. But whether such a necessity exists, as will create by implication a right of way, is a question of fact to be determined by the circumstances of each particular case, and mere inconvenience

1 Tiedeman Real Prop., §§ 607-608.

2 Ante, idem, and cases cited.

3 Bremton v. Hall, 1 Gale & D. 207; Cowling v. Higginson, 4 Mees. & W. 245; Ballard v. Tyson, 1 Taunt. 279; Allan v. Gourme, 11 A. & E. 759; French v. Marstin, 24 N. H. 440; Kirkham v. Sharp, 1 Whart. 323. "The reservation' (so called) of a right of way and carriage of minerals in an indenture of lease, is an easement created by grant of the lessee." Durham & S. R. Co. v. Walker, 2 Q. B. 940; s. c. 2

G. & D. 326; M. M. D. 85.

4 Tiedeman on Real Prop., § 609.

5 Ante, idem, and cases cited.

will not constitute such necessity. And it has been held that it must be a strict necessity, and although excessive expense in procuring another way would be such a necessity, when a new way is acquired, since the existence of the necessity has then expired, the easement raised from the necessity would also expire with the cessation of the necessity.

§ 222. Same - Who must repair the way.-In the absence of an express agreement, the grantee of a right of way must keep the same in repair and if he fails to do so, he has no right to appropriate other adjacent land of the servient estate because the way has become impassable.5 But the obligation to repair may by covenant be imposed upon the owner of the servient estate, and, in such case, if the latter violates his agreement, the grantee of the way may, if it is necessary, pass over the adjoining land of the

servient estate.

§ 223. Public right of way. Rights of this character are enjoyed by the public generally. Reference is here had

1 Ramirez v. McCormick, 4 Cal. 245; Ogden v. Grave, 38 Pa. St. 487; Screven v. Gregory, 8 Rich. 158.

2 McDonald v. Lindell, 3 Rawle, 492; Bartlett v. Prescott, 41 N. H. 493; O'Rorke v. Smith, 11 R. I. 259.

3 Pettingall v. Porter, 8 Allen, 1; Corbrey v. Wilson, 7 Allen, 364; Johnson v. Jordon, 2 Metc. 234; Brigham v. Smith, 4 Gray, 297; Plimpton v. Converse, 42 Vt. 712.

♦ Ante, idem; Baker v. Crosby, 9 Gray, 421; 14 Gray, 126; Pierce v. Selleck, 18 Conn. 321; Wissler v. Hershey, 23 Pa. St. 333. A way of necessity will not arise by implication, where the mineral is but conjectural and the grant thereof also provides the means of removal. Bascom v. Cannon, 158 Pa. St. 225; 27 Atl. Rep. 968.

5 Tiedeman on Real Prop., § 610, and cases cited.

Pomfret v. Ricord, 1 Saund. 323; Hamilton v. White, 5 N. Y. 9; Jones v. Percival, 5 Pick. 485; Doone v. Badger, 12 Mass. 65; Rider v. Smith, 3 T. R. 766; Bullard v. Harrison, 4 M. & S. 387.

to cases where the land over which the highway extends, belongs to the owners of contiguous property and not to those cases where the highway is vested in the State or municipality in fee, for in such case no question in respect to easements could arise.1 Such easements are acquired by dedication and by appropriation. A dedication may arise

3

from any acts of the owner showing an intention to dedicate, or be applied by custom, from long user by the public. A formal acceptance of the easement is not necessary and acceptance may be inferred from a continued use in conformity with the dedication."

§ 224. Right to cut timber on government land. The Federal statute gives the party holding a mining claim, or an occupant of mineral land, which is not subject to entry under the existing laws of the United States, the right to fell and remove such timber as may be necessary to the full enjoyment of his right to mine." But this does not author

1 Tiedeman Real Prop., §§ 607-611 and cases cited.

2 Ante, idem.

3 Haynes v. Thomas, 7 Ind. 38; Tricker v. Schlader, 52 Ill. 78; Buchanan v. Curtis, 25 Wis. 99.

4 Parish v. Stevens, 1 Oreg. 59; Lemon v. Hayden, 13 Miзs. 159; Lewiston v. Proctor, 27 Ill. 214.

5 Muzzey v. Davis, 54 Me. 361; Cole v. Sprawle, 35 Me. 161; Stevens v. Nashua, 46 N. H. 192; Curtis v. Hoyt, 19 Conn. 154; Pickett v. Brown, 18 La. An. 560. Strictly speaking, this right is not an easement but rather an incorporeal hereditament in the nature of an easement. Tiedeman Real. Prop., § 611; note on page 473.

6 See Act of June 3, 1878, U. S. Statutes. "The above act in connection with the acts of March 3, 1891 (26 St. L. 1093) and February 13, 1893 (27 St. L. 444), are the acts now in force controlling the rights to cut timber in the mining States and Territories, except Alaska. They are construed by Circulars of the Land Department, dated respectively January 18th and February 10th, 1900." 29 L. D. 571, 572. See U. S. v. Copper Queen Co., 60 Pac. 885; U. S. v. Lynde, 47 Fed. 297; Mor. Min. Rts. (10 Ed.) 449.