upon the parties to make repairs when necessary. In making such repairs they are required to be careful and prudent, and cause as little damage as possible to the other, reasonable notice to the latter always being necessary.23 Neither of the owners have the right to put in open windows in their party-wall.24 When either building becomes by age and decay so dilapidated that rebuilding becomes necessary, its owner may for that purpose, and on reasonable notice to the adjoining tenant, and using proper care and skill, take down and rebuild the party-wall without incurring liability to the other tenant.25 So where the wall has become unsuitable for use because of change of conditions and demands of the community, and the improvements made therein, in the absence of a specific contract to the contrary, one may tear down his wall and rebuild with a modern improvement more in keeping with the times.26 So may each owner build the wall higher when it can be done without damage to the other party.27 And where a wall is accidentally destroyed by fire, leaving the wall standing, the easement ceases, and either may dispose as he pleases of

23 Hoffman v. Kuhn, 57 Miss. 750, 34 Am. Rep. 491; Schile v. Brokhahus, 80 N. Y. 614; Partridge v. Gilbert, 15 N. Y. 601, 69 Am. Dec. 632.

24 Dunscomb v. Randolph, 107 Tenn. 89, 64 S. W. 21; Everly v. Driskell (Tex. 1900), 58 S. W. 1046.

25 Partridge v. Gilbert, 15 N. Y. 601, 69 Am. Dec. 632; Campbell v. Mesier, 4 Johns. Ch. 334, 8 Am. Dec. 570; Schile v. Brokhahus, 80 N. Y. 618; Brooks v. Curtis, 50 N. Y. 639, 10 Am. Rep. 545.

26 Hieatt v. Morris, 10 Ohio St. 523, 78 Am. Dec. 280. But see Partridge v. Lyon, 67 Hun, 29, 21 N. Y. Supp. 848. It is no invasion of a property right: Evans v. Jayne, 23 Pa. St. 34.

27 Graves v. Smith, 87 Ala. 450, 13 Am. St. Rep. 60, 6 South. 308; Everett v. Edwards, 149 Mass. 588, 14 Am. St. Rep. 462; Pierce v. Musson, 17 La. 389; Calmelet v. Sichl, 48 Neb. 505, 58 Am. St. Rep. 700, 67 N. W. 467; Brooks v. Curtis, 50 N. Y. 639, 10 Am. Rep. 545.

the part on his ground.28 So may an owner increase the thickness of the wall.29

§ 700. Care Required in Removing or Repairing Party-wall. In the exercise of the rights which one joint owner has to repair, alter or change a party-wall, or to tear it down and rebuild it.30 such reasonable care must be observed by him as will render the inconvenience and loss to his neighbor as small as practicable; and his care should be proportioned to the nature of the work and risks involved; he is liable for whatever actual damage may be caused by his negli gence.31 Notice of such proposed work to the other person is essential, and failure to give it creates a liability for whatever injury may result.82 If notice is properly given of the intention to repair or rebuild, there is no liability for any injury that may be done, if reasonable and ordinary care is observed.33 The one removing the wall may be compelled to reimburse his co-owner for whatever expenses he may have been put to in protecting his property while the work was in progress.

34

28 Hoffman v. Kuhn, 57 Miss. 746, 34 Am. Rep. 491; Partridge v. Gilbert, 15 N. Y. 601, 69 Am. Dec. 632; Sherred v. Cisco, 4 Sand. 480; Pierce v. Dyer, 109 Mass. 374, 12 Am. Rep. 716.

29 Musgrave v. Sherwood, 53 How. Pr. 338, 23 Hun, 669; Negus v. Becker, 68 Hun, 293, 22 N. Y. Supp. 986, 143 N. Y. 303, 38 N. E. 290, 42 Am. St. Rep. 724, 25 L. R. Ann. 667; Andrae v. Haseltine, 58 Wis. 395, 46 Am. St. Rep. 635, 17 N. W. 18.

30 Ante, sec. 699.

31 Gettwerth v. Hedden, 30 La. Ann. 30; Pierce v. Musson, 17 La. 389; Maypole v. Forsythe, 44 Ill. App. 494; Leavenworth Lodge v. Byers, 54 Kan. 323, 38 Pac. 261.

32 Eno v. Del Vecchio, 11 N. Y. Super. 53; Clemens v. Speed, 93 Ky. 284, 19 S. W. 660; Schile v. Brokhahus, 80 N. Y. 614.

33 Clemens v. Speed, 93 Ky. 284, 19 S. W. 660; Hieatt v. Morris, 10 Ohio St. 523, 78 Am. Dec. 280; Duhme v. Jones, 8 Ohio Dec. 757. 34 Putzell v. Drovers' etc. Nat. Bank, 78 Md. 349, 44 Am. St. Rep. 298, 22 L. R. Ann. 632, 28 Atl. 276.

37

§ 701. Right of Way-Defined-How Created.—A right of way is properly classed as an incorporeal hereditament, being a right to pass over the land of another, for purposes of ingress and egress to land of him in whom vests the right. Such right is created by grant of an owner, express or implied,35 or it may arise from necessity, as where one owns land surrounded by other land which exclude from a public highway; 36 or it may arise from prescription. It is not an interest in land, but only an easement.38 The manner in which this easement may be created, or arise, pertains more to other branches of the law. It may be sufficient for our purposes to state that, to be created by grant, it is sufficient if a grantor in making a conveyance recognizes the existence of a certain right of way. And when claimed by right of prescription, the ordinary rules relating to the creation of rights in this manner apply, viz.: “A prescriptive right to a private way is substantially the same in quality and characteristics, and would arise in substantially the same manner as would title to land by adverse occupancy. It must not only be continued for the requisite period, but it must be adverse, and under a claim of right, and must be exclusive and uninterrupted." 40

89

35 Jones on Easements, sec. 298; Tiffany on Real Property, sec. 321.

36 Snyder v. Warford, 11 Mo. 513, 49 Am. Dec. 94; Tiffany on Real Property, sec. 321; O'Rorke v. Smith, 11 R. I. 259, 23 Am. Rep. 440; Regan v. Boston Gas Light Co., 137 Mass. 37.

37 Pierce v. Cloud, 42 Pa. St. 102, 82 Am. Dec. 496; Worrall v. Rhoads, 2 Whart. 427, 30 Am. Dec. 274; Dee v. King, 73 Vt. 375, 50 Atl. 1109.

38 Snyder v. Warford, 11 Mo. 513, 49 Am. Dec. 94.

39 City of Niagara Falls v. New York Cent. etc. R. R. Co., 168 N. Y. 610, 61 N. E. 185.

40 Phoenix Ins. Co. v. Haskett (Kan. 1902), 67 Pac. 446. See other cases on prescription, Stewart v. White, 128 Ala. 202, 30

41

§ 702. Same Continued-Rights and Injuries.-The rights of the person in whom the right of way vests, and the responsibility of those guilty of infringing the same, will of necessity depend upon the nature of the right, and the purposes for which it was made, the nature and situation of the property subject to the easement, and the manner in which it is used and occupied.4 Such reasonable use and enjoyment of the way may be had as seems necessary under the circumstances.42 The wrong or injury that may be done to this right is obstructing the way, or causing an entire deprivation thereof contrary to the terms of the grant, or in derogation of the right otherwise acquired. The question of the right of a grantor to close a right of way by the erection of gates has been the subject of frequent litigation, resulting in the expression of apparent conflicting opinions. One view is expressed that if the erection of gates across the way do not interfere with a reasonable and proper enjoyment thereof, then it does not infringe the rights of the one in whom the right is vested; and that this question is one for a jury to determine according to the circumstances.43 There is no real conflict among decisions, after all, the right to close a right of way without infringing upon the rights of the one owning South. 526; Aaron v. Gunnels, 68 Ga. 528; Cox v. Forrest, 60 Md. 74.

41 Baker v. Frick, 45 Md. 337, 24 Am. Rep. 506; Smith v. Worn, 93 Cal. 206, 28 Pac. 944.

42 Id.

43 Baker v. Frick, 45 Md. 337, 24 Am. Rep. 506. "The grant of a right of way over or through the lands of an individual does not imply that the grantor may not erect gates at the points where the way enters and terminates": Maxwell v. McAtee, 9 B. Mon. 21, 48 Am. Dec. 409. To same effect, Bean v. Coleman, 44 N. H. 539; Bakeman v. Talbot, 31 N. Y. 366, 88 Am. Dec. 275; Honpes v. Alderson, 22 Iowa, 161; Connery v. Brooke, 73 Pa. St. 80; Phillips v. Dressler, 122 Ind. 414, 17 Am. St. Rep. 375, 24 N. E. 226; Jones on Easements, sec. 407, and cases cited.

the easement depending, as it does, upon the circumstances. Consequently, some courts hold that the closing up of the way by gates is wrongful.44 An unwarranted obstruction of a right of way constitutes the wrong of nuisance, and hence remediable in law in an action of case, or in equity by injunction.45 The right to use the way does not carry with it a right to the exclusive possession, the owner still having the right to use it for such purposes as will not unreasonably interfere with its use as a way. Hence he cannot be held for trespass quare clausum fregit.46 The grantee may restrict such use of the way by the owner only as is inconsistent with the enjoyment of the way.

47

§ 702a. Individual Rights in Streets and Highways.So far as concerns the rights of persons relating to the general use of the public highways and streets, the manner in which they are laid out is comparatively unimportant. But as to individual rights of persons owning property abutting on streets or highways, the manner in which the same is dedicated for public purposes is important. In theory, when land is appropriated for street or highway purposes the fee remains in the land owner, subject only to the public easement. When lands are dedicated by individual grant, the fee is vested in the public. Practically, the

44 Devore v. Ellis, 62 Iowa, 505, 17 N. W. 740; Rowe v. Nally, 81 Md. 367, 32 Atl. 198. Where the grant of a way is "as now laid out," there is no right to maintain gates: Welch v. Wilcox, 101 Mass. 162, 100 Am. Dec. 113; Williams v. Clark, 140 Mass. 238, 5 N. E. 802.

45 Morgan v. Boyes, 65 Me. 124. A right of easement may be enforced by injunction: Henry v. Koch, 80 Ky. 391, 44 Am. Rep. 484; Webber v. Gage, 39 N. H. 182.

46 Id.

47 Herman v. Roberts, 119 N. Y. 37, 16 Am. St. Rep. 801, 23 N. E.

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