conveyance of water.

Afterwards, on the 7th day of the same month, Davis purchased of Chandler the south close, which was bounded by the water on one side, and on the opposite side by the highway. On the 21st of January, 1801, Amos Perley duly levied an execution, issued upon a judgment in his favor against Davis, upon the two closes, and on the land between them, over which the highway was located; and on the 12th of April, 1803, the said Amos Perley, by deed of release, conveyed to the plaintiff in fee, the estate on which his said execution was levied. Upon these conveyances the plaintiff rested his right to the watercourse; he having also offered evidence to prove that he was in possession of the land described in Amos Perley's deed of release to him, at the time it was given.

It was agreed that the plaintiff, claiming a right to do it, made the watercourse, for the filling up and obstructing whereof he brought this action, to convey therein water from the close on the north side to the close on the south side of the highway, for the purpose of working his mills standing on the last-mentioned close, and that those closes were the same conveyed by Chandler to Davis.

A verdict was taken for the plaintiff by consent, subject to the opinion of the court, upon the facts, which are in substance above stated. And if the court should be of opinion that the plaintiff had the right put in issue, judgment should be rendered on the verdict so taken; and otherwise, that a verdict should be entered for the defendant, and judgment be rendered accordingly.

The cause was shortly argued at this term by Wilde for the plaintiff, and Todd for the defendant; after which the opinion of the court was delivered by

PARSONS, C. J. [After stating the pleadings and the facts.] There is a defect in the case. It is not alleged that John Chandler was seised of the land covered by the highway, which lies between the two closes; and although this land is expressly levied upon by Amos Perley's execution, yet it is not stated that the watercourse in question was sunk in this land, nor that the way had been previously laid out.

But taking it for granted, as John Chandler owned the closes adjoining on each side of the way, that he also owned the land over which the way passed; that it was the land described in Amos Perley's levy as covered by a way; and that the watercourse was sunk in this land, over which the way passed, we proceed.

By the location of a way over the land of any person, 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 incumbered 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 owner can lawfully claim. He may maintain ejectment for the land thus incumbered; and if the way be discontinued, he shall hold the land free from the incumbrance.

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, so that the highways remain safe and convenient for passengers.

These well-known legal principles are now to be applied to the case before us. The point saved is, whether the plaintiff had a right to sink the watercourse in question. And the decision of this point must depend either on the privilege he had in the soil of another, or on his right to make this use of his own soil.

The plaintiff, being an assignee of Sampson Davis, is entitled to the privilege purchased by Davis of John Chandler, by the first conveyance. But Chandler owning at that time the land under the highway, the privilege to dig a watercourse anywhere through his land must include a privilege to dig it under the highway, so that the easement remained to the public. On this ground the plaintiff had a right to dig the watercourse in question. But it further appears, from the extent returned on Amos Perley's execution, that the land under the highway was taken by the execution; and it also appears that Amos Perley conveyed that land to the plaintiff. If, therefore, the levy by Amos Perley was a disseisin of the right owner, yet, he not having since re-entered, the plaintiff has the freehold, subject, however, to be ousted or evicted by one who has the legal right.

But the defendant sets up no title to the land, and cannot therefore dispute the plaintiff's right to the soil. As to the defendant, the plaintiff must be deemed to be the owner; and as owner, he has the right to a watercourse in his own land under the highway; but so as not to deprive the public of the easement. And as the mere right in the plaintiff to the watercourse in question is the only point reserved, the plaintiff, having established this right, must have judgment on the verdict.

If the case presented to us a question, whether the owner of the land, over which is a public highway, might open a watercourse under the way, and leave it open at top, to the annoyance of passengers, some further considerations would be necessary.

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. This obligation upon the owner arises from the consideration, that when the way was

located, the public were to be considered as purchasers of the easement, by the payment to the owner of all damages which he sustained in consequence of the easement. And among other causes of damage might be estimated the inconvenience of opening a watercourse at his own expense.

Judgment on the verdict.

MAKEPEACE v. WORDEN.

SUPERIOR COURT OF JUDICATURE OF NEW HAMPSHIRE. 1816.

[Reported 1 N. H. 16.]

THIS was an action of trespass. The declaration contained two counts, 1. For breaking and entering the plaintiff's close, cutting his trees, and subverting the soil. 2. For taking, carrying away, and converting to the defendant's own use six cords of wood belonging to the plaintiff. By the statement of facts upon which the cause was submitted to the decision of court, it appeared that the locus in quo was a public highway in the town of Chesterfield, laid out through the plaintiff's land in 1801, that the defendants were employed by the town to make the highway, and that in making the road they necessarily cut sundry trees, which they afterwards carried away and converted to their own private use.

Handerson, for the plaintiff.

Upham, for the defendant.

PER CURIAM. In highways laid out through the lands of individuals in pursuance of Statutes, the public has only an easement, a right of passage; the soil and freehold remain in the individual, whose lands have been taken for that purpose. Towns whose duty it is to make roads and keep them in repair have a right to cut trees growing in highways so far as is necessary to the performance of that duty. It is therefore clear that the defendants are entitled to judgment on the first count in this case. Whether towns have a right to use trees thus cut, in the construction of the road, is a question not necessary to be settled in this case. The plaintiff complains, not that his trees have been thus used, but that they have been converted to the private use of the defendants. This complaint in our opinion is well founded and the plaintiff is entitled to judgment on his second count for the value of the wood. Judgment for the plaintiff'

1 See Tucker v. Eldred, 6 R. I. 404.

CAMPBELL v. RACE.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1851.

[Reported 7 Cush. 408.]

THIS was an action of trespass for breaking and entering the plaintiff's close in the town of Mount Washington, and was tried in the Court of Common Pleas, before Byington, J. The defendant pleaded the general issue, and specified in defence a right of way of necessity, resulting from the impassable state of the adjoining highway by ob structions with snow.

The defendant introduced evidence that at the time when the trespass was alleged to have been committed he was travelling with his team on a highway running east and west, which led to and intersected a highway running north and south, which latter highway led to and intersected another highway, on which the defendant had occasion to go with his team; and the usual, proper, and only mode of getting on which, by a highway, was by passing over the two highways first named, when they were in a condition fit for travel; but at the time of the alleged trespass they were both obstructed and rendered impassable by snow-drifts; because of which obstructions, the defendant turned out of the first highway with his team, at a place where it was rendered impassable as aforesaid, and passed over the adjoining fields of the plaintiff, doing no unnecessary damage, and returned into the second highway as soon as he had passed the obstructions which rendered both impassable. And he contended, that the highways being thus rendered impassable, he had a way of necessity over the plaintiff's adjoining fields, or that his so passing was excusable, and not a trespass.

But the judge ruled that these facts constituted no defence to the action; and a verdict having been returned accordingly for the plaintiff, the defendant alleged exceptions.

W. Porter and J. C. Wolcott, for the defendant.

I. Sumner, for the plaintiff.

The opinion was delivered at September term, 1852.

BIGELOW, J. It is not controverted by the counsel for the plaintiff that the rule of law is well settled in England that where a highway becomes obstructed and impassable from temporary causes, a traveller has a right to go extra viam upon adjoining lands, without being guilty of trespass. The rule is so laid down in the elementary books. 2 Bl. Com. 36 Woolrych on Ways, 50, 51; 3 Cruise Dig. 89; Wellbeloved on Ways, 38; and it is fully supported by the adjudged cases. Henn's Case, W. Jones, 296; 3 Salk. 182; 1 Saund. 323, note 3; Absor v. French, 2 Show. 28; Young v. 1 Ld. Raym. 725; Taylor v. Whitehead, 2 Doug. 745; Bullard v. Harrison, 4 M. & S. 387, 393.

Such being the admitted rule of law, as settled by the English authorities, it was urged in behalf of the plaintiff in the present case that it had never been recognized or sustained by American authors or cases. But we do not find such to be the fact. On the contrary, Mr. Dane, whose great learning and familiar acquaintance with the principles of the common law, and their practical application at an early period in this commonwealth, entitle his opinion to very great weight, adopts the rule as declared in the leading case of Taylor v. Whitehead, ubi supra, which he says "is the latest on the point, and settles the law." 3 Dane Ab. 258. And so Chancellor Kent states the rule. 3 Kent Com. 424. We are not aware of any case in which the question has been distinctly raised and adjudicated in this country; but there are several decisions in New York, in which the rule has been incidentally recognized and treated as well-settled law. Holmes v. Seely, 19 Wend. 507; Williams v. Safford, 7 Barb. 309; Newkirk v. Sabler, 9 Barb. 652. These authorities would seem to be quite sufficient to justify us in the recognition of the rule. But the rule itself is founded on the established principles of the common law, and is in accordance with the fixed and uniform usage of the community. Indeed, one of the strongest arguments in support of it is, that it has always been practised upon and acquiesced in, without objection, throughout the New England States. This accounts satisfactorily for the absence of any adjudication upon the question, in our courts, and is a sufficient answer to the objection upon this ground. which was urged upon us by the learned counsel for the plaintiff. When a right has been long claimed and exercised, without denial or objection, a strong presumption is raised that the right is well founded.

The plaintiff's counsel is under a misapprehension in supposing that the authorities in support of the rule rest upon any peculiar or excep. tional principle of law. They are based upon the familiar and wellsettled doctrine, that to justify or excuse an alleged trespass, inevitable necessity or accident must be shown. If a traveller in a highway, by unexpected and unforeseen occurrences, such as a sudden flood, heavy drifts of snow, or the falling of a tree, is shut out from the travelled paths, so that he cannot reach his destination without passing upon adjacent lands, he is certainly under a necessity so to do. It is essential to the act to be done, without which it cannot be accomplished. Serious inconveniences, to say the least, would follow, especially in a climate like our own, if this right were denied to those who have occasion to pass over the public ways. Not only would intercourse and business be sometimes suspended, but life itself would be endangered. In hilly and mountainous regions, as well as in exposed places near the sea-coast, severe and unforeseen storms not unfrequently overtake the traveller, and render highways suddenly impassable, so that to advance or retreat by the ordinary path is alike impossible. In such cases the only escape is, by turning out of the usually travelled way, and seeking an outlet over the fields adjoining the highway. If a necessity is not

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