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tion, the land is recovered, subject to the easement or servi tude.'

The plaintiff conveyed a farm to defendant, excepting a highway em. braced within its boundaries. The defendant dug up this highway and ran a water pipe across it, set out fruit and shade trees, and piled stones, lumber and manure in it, used a portion of it for farming purposes, and claimed, as against the plaintiff, the right to appropriate the highway to the uses described. Under these circumstances the right to maintain ejectment was sustained. Etz v. Daily, 20 Barb. (N. Y.) 32.

§ 22. Highways, Public Roads, Streets, etc.-The owner of the land can sustain ejectment against a party who has exclusively appropriated a portion of a highway to his own use, or appropriates it to any other use than this servitude.'

And this is the rule even in a case where the owner conveys the land to another, excepting the part included in the highway; the grantor may maintain ejectment against the grantee, for digging up the highway and running a water-pipe across it; setting out fruit and shade trees upon it; piling stone, lime and manure within its boundaries, and using a portion of it for farming purposes, and claiming as against the grantor to be the owner of the land with the right to appropriate it to such


The rule in Illinois: The public authorities who have the superintendence and control of the public roads may authorize travel on them by the means of a railroad, and where a railroad company has constructed its road upon and along a public road, such use and possession is a matter between the road authorities and the railroad company, and the right can not be questioned in an action of ejectment by the owner of the land over which the public road has been established. Edwardsville R. R. Co. v. Sawyer, 92 Ill. 377 (1879). The ground upon which this decision rests is that the use of a public highway by a railroad company to transport its passengers is not a misappropriation of the use.

§ 23. The Rule Does Not Apply Where the Public Authorities Obstruct the Highway.-By the common law the fee in the soil remains in the original owner where a public road is established over it, but the use of the road is in the public.

1 Gordon v. Sizer, 39 Miss. 805; Morgan v. Moore, 3 Gray (Mass.) 319; Cooper v. Smith, 9S. & R. (Penn.) 26.

Brown v. Galley, Lalor's Supp. (N. Y.) 308; Goodtitle v. Alker, 1 Burr. 133; Stackpole v. Healy, 16 Mass. 35; Bolling v. Mayor, etc., 3 Rand. 563; Cooper v. Smith, 9 S. & R. (Penn.) 26; Wager v. Troy R. R.

Co., 25 N. Y. 526; Wright v. Carter, 3 Dutch. (N. J.) 76; Carpenter v. Oswego, etc., R. R. Co., 24 N. Y. 655; Lozier v. N. Y. Cen. R. R. Co., 42 Barb. (N. Y.) 465; Jackson v. Hathaway, 15 Johns. (N. Y.) 447.

Etz v. Daily, 20 Barb. (N. Y.) 32; but see Redfield v. Utica, etc., R. R. Co., 25 Barb. (N. Y.) 54.



The owner parts with this use only, for if the road be vacated by the public he resumes the original possession of the ground, and while it is used as a highway he is entitled to the timber and grass which may grow upon the surface, and to all minerals which may be found below it. He may bring an action of trespass against any one who obstructs the road. But it seems he can not bring ejectment for the land in cases where it is used by the authorities for purposes other than as a highway.'

24. Ejectment Lies in Favor of an Infant for the Recovery of Lands Conveyed During Minority. An infant upon his arriving at full age may repudiate any conveyance of his lands made by him during his minority, and regain his possession in ejectment. In repudiating such a conveyance, it is immaterial whether the minor returns the purchase price of the lands, unless the same or some part thereof remains in his hands after his maturity, in which case it seems it or that part of it remaining must be returned.'

Where a man and his wife, who was a minor, joined in a warranty deed of lands belonging to them in equal shares as tenants in common, the wife may maintain a writ of entry to recover an undivided moiety of the land, although she received part of the price, if it did not appear that she retained such part till she came of age. Walsh v. Young, 110 Mass. 396. It seems that all persons under disabilities, including infants, may by their guardians or conservators repudiate their conveyances and recover possession of lands in ejectment. Chandler v. Simmons, 97 Mass. 508 (1867), and cases cited.

$25. For an Island in a River.-Where land is formed by alluvion in a river not navigable, by slow and imperceptible accretion, it is the property of the owner of the adjoining land, who, for convenience, may be called the riparian proprietor. In applying this principle, it is quite immaterial whether this alluvion forms at or against the shore, so as to cause an extension of the shore or bank of the river, or whether it forms in the bed of the river and becomes an island, and where an island is so formed in the bed of the river, as to divide the channel and form partly on each side of the thread of the river, if the land on the opposite sides of the river belongs to different

1 Barclay v. Howell's Lessee, 6 Pet. (1872); Chandler v. Simmons, 97 (U. S.) 499 (1832). Mass. 508.

* Walsh v. Young, 110 Mass. 396

proprietors, the island will be divided according to the original thread of the river, between the rival proprietors.'

The plaintiff's ancestor sunk a scow filled with stones in a navigable river, on a flat between two channels, and used it for the purpose of fishing when it was bare at low water. The scow was overflowed and submerged at high water. By gradual accretion of sand an island formed over the scow. and emerged from the water. Plaintiff and his ancestor continued to use the island for fishing purposes, and each year mowed the grass growing upon it, but it appeared that a large number of people had used the island for fishing, without license from any one, and without paying for its occupation, and that the plaintiff's claim was not generally known or recognized. It was held that the title to the island, forming as it did, in navigable waters, vested in the State. Tracy v. Norwich & W. R. R. Co., 39 Conn. 382.

A portion of the surface of an island in the Delaware river was washed away by the force of the winds and waves and was overflowed by water. Subsequently a bar began to form by the deposit of alluvion and appeared above the water in the same place which had formerly been occupied by the part of the island swallowed up by the river. The bar began forming below the island, and was for a long time distinct from it, but at length became united with the old island by its own extension through gradual accretions. A person procured a grant of the bar or new island from the State, but the former proprietor claimed, and the court decided, that he did not lose his property in the soil covered by water if it was regained either by natural or artificial means, but that it continued to belong to him, and was not the subject of a new grant from the State. Norris v. Brooke, 25 Alb. L. J. 90 (1815).

§ 26. Lands Forfeited by Reason of the Violation of Conditions Contained in the Grant.-It is a well established rule of law that the grantor may maintain an action of ejectment for the recovery of lands conveyed by him, where they have become forfeited by reason of the violation of conditions contained in the grant. The doctrine rests upon the principle that the peculiar covenants of the grant make the premises conveyed an estate upon condition, and the person for whose benefit the condition was made may have his action for the recovery of the premises upon their being forfeited by the violation of the condition.


27. For Breach of Condition Subsequent in Deeds-Sale of Intoxicating Liquors, etc.-A condition in a deed of conveyance that intoxicating liquors shall never be manufactured,

'Deerfield v. Arms, 17 Pick. (Mass.) (1829); Cowell v. Colo., etc., Co., 100 41 (1835). U. S. 55 (1879); O'Brien v. Witherall, 14 Kan. 616; Doe v. Keeling, 1 Maule & S. 95; see chapter 11, § 38 and notes.

Plumb v. Tubbs, 41 N. Y. 442; Gibert v. Peteler, 38 N. Y. 165; Gray v. Blanchard, 8 Pick. (Mass.) 284



sold or otherwise disposed of as a beverage, in any place of public resort on the premises conveyed, and that if this condition be broken by the grantee, his assigns or legal representatives, the deed shall become null and void, and the title to the premises shall revert to the grantor, is not repugnant to the estate granted, nor is it unlawful or against public policy. Upon a breach of the condition, the grantor has the right to treat the estate as having reverted, and to bring an action of ejectment. Such conditions subsequent, in order to be valid, must not be repugnant to the estate granted. The owner of property has a right to dispose of it with a limited restriction on its use, however much the restriction may affect the value or nature of the estate. Repugnant conditions are those which tend to the utter subversion of the estate-such as prohibit entirely the alienation or use of the property. Conditions which prohibit its alienation to particular persons, or for a limited period, or its subjection to particular uses, are not subversive of the estate; they do not destroy or limit its alienable or inheritable character."

The reports are full of cases where conditions imposing restrictions upon the uses to which property conveyed in fee may be subjected, have been upheld. In this way slaughter houses, soap factories, distilleries, livery stables, tanneries and the like have been excluded from particular localities which, thus freed from unpleasant sights, noxious vapors or disturbing noises, have become desirable as places for residences of families. To hold that conditions for their exclusion from premises conveyed, are inoperative, would defeat numerous arrangements in our large cities for the health and comfort of whole neighborhoods."

The demandant, in a writ of entry, being owner of a par cel of land with a dwelling house thereon, adjoining on the north to land with a dwelling house thereon belonging to his sister, facing to the south, conveys to the tenant's grantor in fee simple, "provided, however, this conveyance is upon the condition that no windows shall be placed in the north wall of the house aforesaid, or of any house to be erected on the premises, within thirty years from the date hereof." After the sister has conveyed her land to a

1 Cowell v. Colo. Springs Co., 100 U. S. (10 Otto) 55 (1879); Plumb v. Tubbs, 41 N. Y. 442; O'Brien v. Witherall, 14 Kan. 616; Doe v. Keel

(1829); see chapter 11, § 38 and notes. *Cowell v. Colo. Springs Co., 100 U. S. 55 (1878).

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Cowell v. Colo. Springs Co., 100 ing, 1 Maule & S. (Eng.) 95; Gray U. S. (10 Otto) 55 (1879). v. Blanchard, 8 Pick. (Mass.) 284

stranger, the tenant mortgages by a deed reciting the foregoing provisions, and afterward, while remaining in possession, makes windows in the north wall; it was held that the above clause was a condition and not a covenant, that it was a valid condition and that such breach of it worked a forfeiture of the estate and gave the demandant a right to re-enter. Gray v. Blanchard, 8 Pick. (Mass.) 284 (1829).

$28. Mines and Mining Rights-The General Rule Stated by Bainbridge.-It might certainly be contended when mines form a distinct inheritance, that the action of ejectment is possessory; that the object of contention must, at least, be such as to be capable of actual possession from the delivery of the sheriff; that all the excavated parts would be of an incorporeal nature, or, at any rate, would become part of the general freehold, through which a mere right of way would be permissible; and that all the portions which are severed instantly lose the character of land and become mere personal chattels. Such an action would certainly not seem to correspond, in such a case, with its exact definition. But in this, as in some other instances, the action of ejectment has been carried beyond its original limits.'

29. The Law Stated by Adams.-When a grant of mines is so worded as not to operate as an actual demise, but only as a license to dig, search for and take metals and minerals within a certain district during the term granted, it seems that a party claiming under such a grant and who shall open and work and be in actual possession of any mines, may, if ousted, maintain ejectment in respect of them, but he can not maintain ejectment either in respect of mines within the district which he has not opened, or which, having opened, he has abandoned.'

30. Mining Rights and Privileges.-We have seen that the action of ejectment will not lie for the recovery of an easement or an incorporeal hereditament, and the question to be determined in these cases is, whether the mining right or privilege to be recovered is really a tangible interest in real property of which possession can be delivered, as a grant or demise of the mines, metals or minerals in the land, or whether it is only a mere easement, as a license to mine or search for metals or minerals or a privilege to dig in mines. For the former the action may be sustained, but for the latter it can not, the remedy being

1 Bainbridge on Mines, 332.

• Adams on Ejectment, 22; Hanley

v. Wood, 2 B. & A. 724; Crocker v. Fothergill, 2 B. & A. 652.

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