1. The Several Kinds of Estovers or Botes; W. C. A sufficient allowance of wood to repair the house, or to supply it with fuel, which latter is sometimes called by the distinctive name of fire-bote. (2 Bl. Com. 35.) 2. Plough-bote, or Cart-bote. A sufficiency of wood to make and repair all instruments of husbandry. (2 Bl. Com. 35.) 3. Hay-bote, or Hedge-bote. An allowance of wood for making and repairing hay, (Ang. Sax. hage,-haw) hedges, or fences. 21. Modes of Creating Common of Estovers. By grant, or by prescription. From its nature it cannot be in gross, but must be appendant, or appurtenant to land. (Dean, &c., of Windsor's Case, 5 Co. 25; 2 Bl. Com. 35, & n (27).) 3. Apportionment of Common of Estovers. Apportionment, called for in consequence of the land to which the right is annexed being divided into several parcels, is always admissible, unless it would lead to the over-charging of the land in which it is to be enjoyed,—a result which would generally take place in case of fire-bote, and often in the other cases; but if the commoner acquire by his own act a part of the land in which the common is to be exercised, the right of common becomes extinct, upon the principle of feudal policy, so repeatedly referred to. (Ante, p. 12, 2; 1 Th. Co. Lit. 227; Bac. Abr. Common, (E).) 4. Doctrine as to Common of Estovers, in Virginia. It may exist, just as in England, with the same qualities and incidents, but this, like all the other rights of common, is in practice little known amongst us, in consequence of the cheapness of lands. (1 Lom. Dig. 659.) 3. Ways. Ways include both high-ways and private-ways, but the latter meaning is the one usually intended, and it is in that sense alone that it belongs to the subject of incorporeal hereditaments. A high-way is a way common to all persons, and at common law may be a foot-way, or horse-way, as well as one for carriages. If it is not common to all persons, but only to the residents of a particular locality, it is at common law distinguished as a common-way. Anciently, there were but four highways in England, all of Roman construction, viz: Watlingstreat, Ikenildstreat, Fosse, and Erminstreat; two traversing the length, and two the breadth, of the kingdom; and until a period comparatively recent, the legal idea of a highway was, that it should lead from town to town, and, therefore, the ancient form of indictment for obstructing it showed the termini. The modern idea, however, of a highway, as above stated, is that it is common to all people alike; and yet in Virginia, (true to English traditions), until 1849, no road could be established as a highway, unless one terminus, at least, was at the courthouse, a public warehouse, landing, ferry, or other designated public place. No such requirement at present exists; and the road-laws seem to abolish the distinction between highways and common ways, and to constitute all alike highways, open to every mode of transit, on foot, on horse-back, with cattle, or in carriages. (Bac. Abr. Highways (A); 1 Lom. Dig. 677 & seq; 1 Th. Co. Lit. 234, n (C. 1).) The mode of opening highways by public authority, and the circumstances under which a dedication to the public use may be presumed, without a formal order, have been stated in the first book, chapter ix. What is now to be dealt with is the subject of private ways. The doctrine touching private ways may be exhibited under the heads following, namely: (1), The definition. of the right of way; (2), The modes whereby a right of way may originate; (3), The extent of privilege conferred by a right of way; (4), The modes whereby a right of way is extinguished; and (5), Easements and aquatic rights assimilated to rights of way; W. C. 1. Definition of the Right of Way. It is "the right of going over another's land," and may be in gross, or annexed to lands, as appendant or appurtenant thereto. (2 Bl. Com. 35; 1 Lom. Dig. 670-'71, 673.) 25. Modes whereby a Right of Way may originate. A right of way may originate by, (1), Grant; (2), Reservation; (3), Prescription; and (4), Necessity, or Implication; W. C. 1h. Grant. As where A grants B a right of way through his land, or, what is equivalent thereto, covenants that B shall enjoy it. (2 Bl. Com. 35, n (28).) 2h. Reservation. As where A grants land to B, reserving a right of way over it. (2 Bl. Com. 36, n (28).) 3. Prescription. Prescription supposes a grant, being founded on honest, uninterrupted and adverse enjoyment for a period whereof the memory of man runneth not to the contrary. This immemorial enjoyment, however, is considered as conclusively established by a continuance (honest, uninterrupted and adverse) for more than twenty years. (2 Bl. Com. 35, n (28); 1 Lom. Dig. 786-7; Coalter v. Hunter, 4 Rand. 58; Stokes v. Upper Appomattox Co., 3 Leigh, 318; 3 Kent's Com. 441.) 4. Necessity, or rather Implication. A way of necessity arises as incident to a grant of land, surrounded wholly by that of the grantor, when otherwise the land granted would not be accessible, and the grantee would derive no benefit from the grant. It is an instance of the maxim previously referred to, that one is always understood to intend, as incident to the grant, whatever is necessary to give effect thereto, which is in the grantor's power to bestow. Cuicunque aliquis quid concedit, concedere videtur et id sine quo res ipsa esse non potuit. (Liford's Case, 11 Co. 52; Pomfret v. Ricroft, 1 Wms. Saund. 322, b, n, (5), (6); Broom's Max. 362, 366; 2 Bl. Com. 36, & n (28).) If one's land is so situated that he can have no access to it without passing over the premises of another person (not his grantor), he cannot demand a right of private way as of necessity, but must apply to have a public highway opened, which is in the discretion of the county court to order, even to subserve the convenience of a single person, although the court might generally hesitate to exercise its discretion when only one person was concerned. (V. C. 1873, c. 52, § 24, & seq.; Acts 1874-'5, p. 177, c. 1, § 1; Lewis v. Washington, 5 Grat. 265.) 3. Extent of privilege conferred by a Right of Way; W. C. 1h. The use of the Way must be as stipulated. The several classes of private ways are a foot-way, a horse or drift-way (for a horse or driving-cattle), and a cart-way (for any manner of wheel-vehicle). A cart-way includes, in general, all the rest, and a horse or drift-way includes a foot-way; but one who has only a foot-way cannot ride or drive cattle over it, nor can one entitled only to a drift-way pass along with a vehicle. (1 Th. Co. Lit. 233-'4, & n (B, 1); Ballard v. Dyson, 1 Taunt. 279.) So, it is said, the grantee having a right of way over another's lands to a designated place cannot justify going beyond, apparently because it would tend to make the right of way (being more used) a greater burden upon the land. (1 Lom. Dig. 680; Lawton v. Ward, 1 Ld. Raym. 75; 1 Th. Co. Lit. 234, n (D, 1).) Hence, in a grant of a right of way it is expedient to stipulate for it to the place designated, and to all places beyond. 2h. The Grantee can come in only at the usual Entrance. See 2 Bl. Com. 35, n (28); Woodyer v. Hadden, 5 Taunt. 132. 3h. Repairs of the Way. When there is no stipulation to the contrary, it is the duty of the grantee of the way to repair it, and he has always a right to enter on the premises for that purpose; and the grantor is only bound to repair when it has been so agreed. When it is the grantor's duty to repair, and he fails to do it, the grantee may go upon the grantor's adjacent lands whenever the way becomes foundrous and impassable; but he has no such privilege if it is his own business to repair. (2 Bl. Com. 35, n (28); 1 Lom. Dig. 676, 680-'81; Pomfret v. Ricroft, 1 Wms. Saund. 322 a, n (3); Gerrard v. Cooke, 2 Bos. & Pul (N. R.) 115-'16; 1 Th. Co. Lit. 234, n (D, 1).) It seems, in case of a highway which is for the service of the public, if the usual track is impassable, it is for the general good that people should be entitled to pass in another line; and the party whose lands are thus invaded must seek his redress, it is presumed, against the overseer or other public officer, whose duty it is to keep the road in repair. (2 Bl. Com. 36; Taylor v. Whitehead, 2 Dongl. 749.) 4. Modes whereby a Right of Way may be extinguished; W. C. 1h. Release of the Right of Way to him who has the Land. See Bac. Abr. Release, (D). 2h. Union of seisin of the fee-simple in the same person as the Right of Way. The lesser right of way is merged in the greater right to the fee-simple of the land. But if one who has a right of way over certain lands takes a lease of the premises for twenty years, the right of way is merely suspended, and after the term is ended, will revive again. (2 Bl. Com. 35, n (28); 1 Lom. Dig. 682.) 58. Easements and Aquatic Rights, assimilated to Rights of Way. Easements and aquatic rights assimilated to rights of way include the discussion of (1), Riparian rights; (2), Extent of ownership of lands lying adjacent to highways; (3), Easements generally; (4), Party walls and divisionfences; (5), Running waters; and (6), Rights by license; W. C. 1. Riparian Rights; W. C. 1. Rights of Towing on the banks of Navigable Rivers. At common law, there is no such right. If it exists, it, is in pursuance of a grant, or of prescription, which supposes a grant, or of a local custom. It is otherwise by the civil law. (Ball v. Herbert, 3 T. R. 253; 3 Kent's Com. 426-'7.) 2. Extent of Ownership of Riparian proprietors; W. C. 1. As to Navigable Waters. At common law, the ownership of the riparian proprietor stopped at high-water mark. In Virginia it extends, at least as to tide-waters, and probably to all waters, to ordinary low-water mark. (3 Kent's Com. 427; V. C. 1873, c. 62, § 2.) 2. As to Rivers not Navigable. At common law, their beds are always private, and belong to the neighboring riparian proprietors, each owning ad filum fluminis; or if the same person owns both banks, the whole bed belongs to him,— subject, however, in both cases, to whatever use the public may be able to make of the stream as a public highway for boats and rafts. In Virginia, this principle is only so far changed as that by statute, the banks, shores, and beds of all streams are reserved, which were granted by the State east of the Blue Ridge after 1780, and west of it, after 1802. (V. C. 1873, c. 62, § 1, 2; 1 Lom. Dig. 661 to 663; 3 Kent's Com. 427 & seq.) In navigable waters, if the water is designated as the boundary of land, it is understood to be ordinary low-water mark. Hence Virginia, in ceding the North-western territory, having granted the region north-west of the Ohio river, reserving the river and its islands within the limits of Virginia (V. C. 1873, c. 1, § 2), it is considered that the domain and jurisdiction of Virginia was thereby extended to ordinary low-water mark, on the further side of the river. (Handley's lessee v. Anthony, 5 Wheat, 374; Garner's case, 3 Grat. 655; 3 Kent's Com. 431-2.) 2. Extent of Ownership of Lands lying adjacent to Highways. |