it may be sequestrated, is plain." 1 Bishop, | erly find its way into court without the Crim. Proc., SS 210, 211, is to the same ef- consent or volition of the party from whom fect, and in section 212 it is stated that the it was obtained. Persons may not officer "holds all such property, whether unwarrantably make use of the machinery of money or goods, subject to the order of the criminal law to accomplish private ends. court, and in proper circumstances he will But we see no evidence of the abuse be directed to restore it, in whole or in part, of the law, in the case at bar, by any party, to the prisoner. Both these authorities, it much less by the appellee. It is not will be seen, limit the right to take money shown that this was a scheme between Dunn from the prisoner to cases in which the money and appellee to get hold of the money of the is in some way connected with the offense appellant. The charge against Pratt is not charged, or to be used as evidence on the shown to have been false or fabricated." prosecution. Whether the officer would be After distinctly recognizing the principle held guilty of a trespass if, on the trial, it declared in Ilsley v. Nichols, 12 Pick. 270, appeared that the officer was mistaken in be- and other authorities, that "no lawful thing lieving that the money was connected with procured upon a wrongful act can be supthe offense, or material as evidence, is not ported, "held that the fund was lawfully stated; or whether the money, while in the in court, and subject to garnishment. possession of the officer, was subject to at tachment at the suit of creditors, is not dis

cussed or declared.

The common-law rule declared by Wharton and Bishop, supra, seems to conflict with the state decisions which we have quoted, in so far as they declare it to be the duty of the arresting officer to search and take from the person of the prisoner money or other property which might be available in effecting his escape. It is stated by Mr. Wharton, and sustained by his references, that at common law, "if the property is identified as stolen, or is in any way valuable as proof, it may be sequestrated, is nevertheless plain." If, under this rule, the property is sequestrated, or deposited in court, or held by the officer, to be used as proof on the trial, and, while thus held, a creditor attaches it, what are the rights of the attaching creditor? At common law, and perhaps without statute, the money or property would be in gremio legis, not subject to attachment,. and entirely under the control of the court. After the prosecution is ended, at common law, the court could and ought to direct "that it be restored, in whole or in part, to the prisoner, according to the circumstances. 97 In many States, property thus held was regarded in gremio legis, and therefore not subject to attachment. See 2 Ala., supra, and authorities cited. We understand this to be the reason and extent of the rule as declared by Bishop and Wharton.

Upon principle, property subject to the payment of a debt may be levied upon by the proper officer, if the levy can be effected without trickery or fraud, or a trespass calculated to provoke a breach of the peace. Barnett v. Bass, 10 Ala. 954, and authorities supra. The garnishment in this case was regularly executed by the coroner upon the sheriff, who had possession of the money. There is no evidence to show that the defendant was arrested for the purpose of obtaining a levy, or that the criminal charge against him was false or fabricated. The important question, then, is, Was the sheriff authorized to search the defendant, and take from his person the money, either for the purpose of using it as evidence on the criminal prosecution, or to prevent the prisoner from using the money to effect his escape? Our Statute (Code, § 4745) provides: When a person charged with a felony is supposed by the magistrate before whom he is brought to have upon his person a dangerous weapon, or anything which may be used as evidence of the commission of the offense, the magistrate may direct him to be searched in his presence, and such weapon or other thing be retained, subject to the order of court in which the defendant may be tried." Section 4212 of the Code of Iowa provides that "he who makes the arrest may take from the person all offensive weapons which he may have on his person. It was held in the latter State that this section did not preclude the sheriff from taking from his person money or other property which, might be used in effecting an escape. The Supreme Court of the State of New Hampshire, construing a somewhat similar statute, we have seen, declared the same rule; and the duty and right of the sheriff in this respect has been recognized in other States. The Constitution of the State of Alabama (art. 1, § 6) provides "that the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizures or searches; and that no warrant shall issue to search any place, or to seize any person or thing, without probable cause, supported by oath or affirmation."

The facts of the case of Patterson v. Pratt, 19 Iowa, 358, are as follows: One Dunn, having lost $200, sued out a search warrant against Pratt. Under this warrant, Pratt was arrested, and $485.12 found on his person, which was taken from him and delivered to the magistrate. While the money was in the hands of the justice of the peace, the plaintiff, Patterson, had it levied on by the sheriff to satisfy an execution in his favor, and also summoned the justice to answer as garnishee. The garnishee paid the money to the clerk of the court. The statute of Iowa in regard to garnishing money or a fund in the hands of an officer, or in court, is very similar to section 2950 of this State. The court (Dillon, J.) held: "The appellant In commenting on article 4 of the Constiargues that the statute contemplates a fund tution of the United States, which prohibits which has come into court legitimately by unreasonable searches and seizures, in the civil process, or by consent of the execution case of Boyd v. United States, 116 U. S. 616, debtor. In our opinion, a fund may prop-29 L. ed. 746, Mr. Justice Bradley, deliver

ing the opinion, quoted with approbation of all his personal effects. It is no answer from Lord Camden, as follows: "By the to say the officer would not do it. The laws of England, every invasion of private question is, Has he the right, by virtue of property, be it ever so minute, is a trespass. his authority to arrest, also to search and No man can set his foot upon my ground seize, except in cases authorized by the without my license, but he is liable to an ac- common law or by statute? "It is the duty tion, though the damage be nothing. of the courts to be watchful for the constituIf he admits the fact, he is bound to show, tional rights of the citizen, and against any by way of justification, that some positive stealthy encroachments thereon." law has justified or excused him. The justification is submitted to the judges, who are to look into the books, and see if such a justification can be maintained by the text of the statute law, or by the principles of the common law. If no such excuse can be found or produced, the silence of the books is an authority against the defendant. According to this reasoning, it is now incumbent upon the defendants to show the law by which this seizure is warranted. If that cannot be done, it is trespass. These are the principles which protect every citizen of this government in the enjoyment of his personal liberty, his home, and his property, and no other "can abide the pure atmosphere of a government of political liberty and personal freedom."

.

After a careful examination of the Constitution, prohibiting unreasonable searches and seizures, the common law, the statutes, and authorities, we hold that it is the duty of an officer, having no other authority than the right to make the arrest, to search the party arrested, and seize and remove from him any dangerous weapon found on his person; and he may also seize any money, or anything connected with the offense, or which may be used as evidence against him on the prosecution, and retain the money or thing until turned over to the State's attorney, or paid into court to abide the result of the trial; that an officer acting in good faith, in the execution of his duty, and proceeding upon probable grounds for believing that the money or thing is connected with the offense This court in Chastang v. State, 83 Ala. charged, or may be used as evidence on the 30, referring to the opinion of Justice Brad-trial, may search and take from the defendley, declared: "We indorse and approve ant arrested by him on a criminal charge everything said therein." The statute law money found on his person, and he will not provides for the issuance of search-warrants, be liable in damages for a trespass, although but specifies on what grounds they are to be it may turn out that the money or thing was issued, and only on probable cause, supported not in fact connected with the offense, or by affidavit, naming the person, and partic- could not be used as evidence of the commisularly describing the property and place to sion of the offense, that the money or thing be searched. Code, SS 4727-4729. The seized by the officer, under the foregoing search and seizure in the present case were limitations, during the time it is in his not made under these statutory provisions. hands, or if paid into court, is not in the Section 4745 of the Code we have quoted possession of the defendant, but it is thereby above, and which provides that when a per- sequestered, and subject to attachment or son is charged with a felony, and is supposed garnishment, under section 2950 of the Code; to have a dangerous weapon, or anything that if the arrest was made not in good faith, which may be used as evidence of the com- or if the money or thing is seized without mission of the offense, he may be searched, probable grounds for believing that it is and such weapon or thing may be seized and connected with the offense, or useful as eviretained subject to the order of the court in dence on the trial, the levy made, under such which the defendant is to be tried. The circumstances, is invalid; or, if procured by question as to the dangerous weapon does not trickery or fraud on the part of the attaching arise in this case. That part of the statute creditor, the levy will be held invalid; and which authorizes the seizure and retention the officer making the levy, if he knows of of "anything which may be used as evidence" the fraud, and person procuring it to be done on the prosecution is a mere statutory en- by such means and for such purposes, will actment of the common law. At common be liable to a suit for damages. We believe law the arresting officer had the right to re- these principles consistent with the personal move money from the defendant's person; liberty of the person arrested, as secured to but this right was limited to cases in which him by the Constitution of the State, and the money was connected with the offense, concede to the officer all the authority given or to be used as evidence. See Wharton, to him by the common or statute law. supra, Bishop, supra, and the cases cited in know of no law which will prevent a credisupport of the text. tor from having the property of his debtor levied upon to satisfy his debt, when it can be done without committing a trespass, or by fraud or violence. At common law, the property in the hands of an officer was regarded in gremio legis, and not subject to process; but by statute it is subject to legal process. The return of the court to the rule nisi shows that the prosecution and attachment suits against the movant are undecided, and. are pending in court. Whether, under the principles declared in the foregoing opinion the money is subject to the attach

We are aware of the responsibility of sheriffs for the safety of prisoners, and their liability for escapes suffered by them or their deputies; but we can find no warrant, either in the common law or statute, for taking money from the person of the prisoner, unless it is connected with the offense charged, or to be used as evidence on his trial. If this right exist in the officer, as an absolute right to prevent escapes, he could, upon the arrest of a person charged with a trivial misdemeanor or disorderly conduct, strip him

We

1. Authority to construct a railroad or any part thereof in a tunnel in a city street on

the terms and conditions and in the mode fixed

by ordinance, includes authority to construct

portions of it in an open cut where the ordinance so directs; and even without special authority the right to construct a tunnel would include the right to make properly graded approaches. 3. The mere depreciation in the value of the lot of an abutting owner who does not own the fee of the street, by the con

struction of a railroad therein and his deprivation of the full use of the street, but without any

NOTE.-Implied grants.

When the use of a thing is granted, everything essential to that use is granted also. Such right carries with it the implied authority to do all that is necessary to secure the enjoyment of such easement. Prescott v. White, 21 Pick. 341, 32 Am. Dec. 266; Prescott v. Williams, 5 Met. 429, 39 Am. Dec. 688, and cases cited; Pomfret v. Ricroft, 1 Saund. 323, note 6; Hammond v. Woodman, 41 Me. 177; 66 Am. Dec. 219.

invasion of or physicial interference with his lot or any obstruction of his access thereto, is not a taking of his property within the meaning of the constitutional provision as to compensation for property taken.

(June 17, 1891.)

APPEAL by plaintiff from a decree of the Circuit Court of Baltimore City dismissing his bill filed to enjoin defendant from laying its tracks in a street in front of his lots. Affirmed.

The facts are stated in the opinion.

Argued before Alvey, Ch. J., and Robinson, Bryan, McSherry, Fowler and Briscoe, JJ. Messrs. Isidor Rayner, Thomas R. Clendinen and George R. Willis, for appellant:

v. Selleck, 18 Conn. 321; Lawton v. Rivers, 2 McCord, L. 445; Crossley v. Lightowler, L. R. 2 Ch. App. 486; Alley v. Carleton, 29 Tex. 78; Pingree v. McDuffie, 56 N. H. 306.

The necessity which will raise an implied easement varies with the nature of the property and of the easement. Covel v. Hart, 56 Me. 520.

It is a question of presumed intention. If the servitude is a burdensome one, only strict necessity will raise the implication. Great convenience alone will not give a way of necessity (Dodd v.

When a right is granted, either by an individual | Burchell, 1 Hurlst. & C. 121; Brigham v. Smith, 4 or by a statute, the means of securing the right are Gray, 297; Smith v. Kinard, 2 Hill, L. 642); and the also granted by implication. Carruth v. Grassie, way will cease when the necessity ceases. Lide v. 11 Gray, 211, 71 Am. Dec. 707. Hadley, 36 Ala. 627; Viall v. Carpenter, 14 Gray, 126.

Easement.

What is called necessity is only a circumstance called in to explain the intention of the parties. Nichols v. Luce, 24 Pick. 102; Collins v. Prentice, 15 Conn. 39; American Co. v. Bradford, 27 Cal. 366; 2 Wait, Act. & Def. 668.

So, if the purposes for which the land is granted Thus when a man grants a close inaccessible ex-are inconsistent with the exercise of the easement, cept over his own land, he impliedly grants a right it will not exist. Seeley v. Bishop, 19 Conn. 128. of passing over that land. Otherwise the grantee could derive no benefit from the grant. The same rule of construction would govern a reservation out of lands granted. Co. Litt. 56 a.; Liford's Case, 11 Coke, 52; Lord Darcy v. Askwith, Hob. 234; Clark v. Cogge, Cro. Jac. 170; Howton v. Frearson, 8 T. R. 56; Morris v. Edgington, 3 Taunt. 23: Gayetty v. Bethune, 14 Mass. 55.

Nothing will pass, as incident to the grant, except it be necessary to the enjoyment of the principal thing granted. Hence the grantee of a close surrounded by the grantor's land is entitled to a convenient way over the grantor's land. He may select a suitable route for his way, but in doing it he must regard the interest and convenience of the owner of the land. Nichols v. Luce, 41 Mass. 102.

Nothing passes which is not appurtenant to the land granted and directly necessary to its enjoyment. Leonard v. White, 7 Mass. 6; Coleman's App. 62 Pa. 252.

Thus the grant of trees standing on land of the grantor gives the right to enter and take them, and a sale of personal property gives a right to enter and remove it. A grant of the right to lay pipes carries the right to enter and repair them. Pomfret v. Ricroft, 1 Saund. 321.

By the same principle a way of necessity is created over the grantor's remaining land when there is no other access to the granted premises. Pierce

The grant of power being in derogation of common right is not to be extended by implication. and the act conferring the power must be strictly complied with. Statutes granting these powers are not to be construed so literally or so strictly as to defeat the evident purpose of the Legislature. They are to receive a reasonably strict and guarded construction, and the powers granted will extend no further than expressly stated, or than is necessary to accomplish the general scope and purpose of the grant. Re New York & H. R. R. Co. v. Kip, 46 N. Y. 546.

Whether a right of way is embraced in a deed, is always a question of construction, having reference to its terms not only, but to extrinsic facts also, and to the practical incidents connected with the grantor, and with the use of the land, at the time of the conveyance. The law gives such a construction to the conveyance, as an incident or appurtenance, that such incidents or appurtenances are included in it. In such cases the intention of the parties is to be learned from those facts. Huttemeier v. Albro, 18 N. Y. 51, 52; Ogden v. Jennings, 66 Barb. 301.