The ownership extends, usually, to the middle of the road, as in the case of a private stream; or if the same party owns on both sides, the whole road belongs to him, subject to the public easement of the right of passage in either case. (3 Kent's Com. 432 & seq.) 3. Easements generally.

Easements are incorporeal rights annexed to lands, and existing in the property of another. They are known to the civil law as servitudes; and whilst not confined to cities, principally prevail there, e. g., the right of support, the right of drip, of drain, &c. (3 Kent's Com. 434 & seq.)

To this class of interests belong whatever of dominion or ownership may be had in the elements of running water, air, and light. Fugitive as are these subjects, one can have no absolute permanent property therein. They admit of only a precarious and qualified ownership, which lasts no longer than whilst they are in actual use and occupation in connection with the possession of lands. To obstruct another's windows, through which he has long received the light; to corrupt or cut off the air of his house or gardens; to foul his water-course, or unpen or let it out, or to divert the stream from its ancient channel, whereby it used to run to the other's mill or meadow;-these are regarded by the law as grievous injuries, which it seeks to prevent and redress. But the property in these elements ceases the instant they are out of possession; and they thus become again common, and are liable to be appropriated by some one else. (2 Rob. Pr. (2d ed.) 677 & seq., 672 & seq.; Aldred's Case, 8 Co. 58 b, 59 a, 58 a, n (B).)

A single sentence will here be bestowed upon running waters, but the general subject will be postponed to be discussed in Volume III, c. ii, treating of Personal Property.

In Virginia, a right to drain one's lands, through those of another, or under the beds of mill-canals, may be acquired by an order of the county court, the damage to be paid to the land-owner being ascertained by means of a writ of ad quod damnum. (V. C. 1873, c. 120, § 13 to 17.)

A question has been raised as to the constitutional power of the legislature to authorize the taking of one man's lands, although for just compensation, for the private benefit of another.

It seems to be generally admitted that it is not competent to a constitutional government to do it.

But where, although a private person is the immediate beneficiary, an advantage results to the public, the appropriation is thereby legitimated. In the case under consideration, the public is or may be benefited in point of health, and of the increased production of the lands, so that there would seem to be no room to impeach the provision in question on the ground suggested See Cooley's Const. Lim. 532 & seq., 539 & seq., 538 & n 2

The public necessity which may exist for thus exercising the State's right of eminent domain is to be determined exclusively and finally (like all other political questions), by the legislature, or as the legislature shall direct. (Cool. Const. Lim. 538; People v. Smith, 21 N. Y. 597.) But see Loan Assoc. v. Topeka, 20 Wal. 662 & seq., 668-'9; a case which seems to be too unqualified in its conclusions.

4. Party-walls, and division-fences.

The common law does not oblige adjoining proprietors to contribute to these, independent of any agreement, express or implied, nor of course will it carry the obligation beyond the apparent terms of such agreement. (3 Kent's Com. 437 & seq.)

5. Running Waters.

Every proprietor of lands on the banks of a running stream has an equal right to use the water as it flows past his premises, in a reasonable manner, for domestic, agricultural, and manufacturing purposes, but not (at least as to agricultural and manufacturing operations), so as to destroy, render useless, or materially diminish the supply to the proprietors below. (3 Kent's Com. 440, & n (a).) See supra, p. 21, 31. 6. Rights by License

A license is an authority to do a particular act or series of acts upon another's land, without possessing any estate therein. An easement, on the other hand, carries an interest in the land. A license, therefore, is not within the statute of parol agreements, and is not required to be in writing (V. C. 1873, c. 140, § 1); whilst the grant of an easement for more than five years must be by deed, in order to be complete; and in order to be binding as a contract, must be in writing, if for more than one year. A license, it is said, being a mere authority, founded in personal confidence, is not assignable; an easement is. An easement is permanent, whilst a license is sometimes revocable, namely, where, if it is countermanded, it leaves the party in statu quo. (3 Kent's Com. 452-3.)

5o. Offices.

The exposition of the law concerning offices will oblige us to advert to (1), The definition of an office; (2), The origin of offices; (3), The different classes of offices; (4), The modes of appointment to office; (5), The security exacted for faithfulness in office; (6), The sale of offices; and (7), The modes whereby offices may be determined;

W. C.

18. Definition of an office.

A right, and a correspondent duty, to exercise a public or private employment, and to take the emoluments thereto belonging. (3 Kent's Com. 454; Bac. Abr. Offices, (A).)

25. Origin of Offices.

Some offices exist at common law (as that of sheriff and coroner), whilst others are statutory (as that of justice of the peace and overseer of the poor). (Bac. Abr. Offices, (A), (B).)

35. Different Classes of Offices; W. C. 1h. Civil Offices.

See Bac. Abr. Offices, (A);

W. C.

1. Political Offices.

e. g., Members of the legislature, the president of the United States, ambassadors, and other ministers, &c.

2. Judicial Offices.

i. e., Such as relate to the administration of justice, or the actual exercise thereof. The person administering a judicial office, having a personal trust reposed in him, must execute his office in person, and cannot make a deputy, unless specially authorized so to do. (Bac. Abr. Offices, (A), (L); 3 Kent's Com. 457.)

3. Ministerial Offices.

i. e., Such as give the officer no power or discretion to judge of the matter to be done, and require him to obey the mandates of a superior, e. g., the office of sheriff and constable. The reason which requires a judicial officer to act in person, does not apply to a ministerial officer, who may therefore appoint a deputy. (Bac. Abr. Offices, (A) & (L).) 2. Military Offices.

i. e., Such as are held by persons who serve in the army or navy of the United States. (Bac. Abr. Offices, (A).)

45. Modes of Appointment to Office; W. C.

1. Transmission of Office by Inheritance.

At common law offices were of inheritance, of freehold, for years, or at will; but no judicial office could be of inheritance, and indeed, in no case was an office allowed to descend as an inheritance, where any inconvenience could ensue to the public. In Virginia, a yet more rigorous rule is prescribed, it being provided by the Bill of Rights that as the capacity to render service is not descendible, so neither ought the offices of magistrate, legislator, or judge to be hereditary. (Va. Const. 1869, Art. I, § 6; Bac. Abr. Offices, (H).)

2. Ordinary Modes of Appointment; W. C. 1. Election by the People.

This mode of appointment, which we were once satisfied to limit to the members of the legislature, and which might with great propriety be confined to the legislature and the chief executive, is now extended to an immense proportion of the officials of the Commonwealth, and what is to be deplored, to the least important of them. (Va. Const. 1869, Art. VI, § 14 to 20; Id. Art. VII, § 1 to 4; Id. Art. IV, § 2, 9; Id. Art. V, § 2, 3 )

21. Election or appointment by some other authority than the people, but derived from them.

e. g. In Virginia, the Secretary of the Commonwealth, Treasurer, and Auditor of public accounts; the judges of all the courts, and the superintendent of public instruction, who are elected by the legislature. (Va. Const. 1869, Art. IV, § 2, 9, 12; Art. VI, § 5, 11, 13.)

58. Securities exacted for faithfulness in Office; W. C. 1. Oaths of Office; W. C.

1. In what Cases Oaths of Office are required in Virginia.

Of all persons entering upon the discharge of any function as officers of this State. (Va. Const. 1869, Art. III, § 6; V. C. 1873, c. 12, § 1.)

2. The Oath of Office prescribed in Virginia.

To support and maintain the Constitution and laws of the United States, and the Constitution and laws of Virginia; to recognize and accept the civil and political equality of all men before the law; and faithfully to perform the duty of his office. (Va. Const. 1869, Art. III, § 6; V. C. 1873, c. 12, § 1.)

No anti dueling oath is now exacted, but all persons concerned in a duel since 26 January 1870, (the day when the Constitution of 1869 took effect) are

disqualified for office under the Commonwealth. (Va. Const. 1869, Art. III, § 1, cl. 3; V. C. 1873, c. 7, § 1 (cl. 3) Id. c. 11, § 1.)

2h. Official Bonds; W. C.

1. In what cases official bonds are required.

Whenever the officer is to be concerned with property, or money, e. g. sheriff, constable, &c.

21. To whom the official bond is payable, and its terms. It is payable to the Commonwealth of Virginia, with surety deemed sufficient by the court, board, or officer before whom it is given, and is conditioned for the faithful discharge of his duties. County and township officers (e. g. sheriffs, clerks, treasurers, supervisors, &c,) qualify by taking the oath and giving the bond prescribed, before the judge for the circuit or county court of their county, either in term-time or vacation. (V. C. 1873, c. 12, § 6, 3; Id. c. 46, § 2, 3; Id. c. 47, § 1.)

3. Penalties for acting in office without taking the oath, and giving the bond prescribed.

Forfeiture of $100 to $1000. (V. C. 1873, c. 12, § 9.)

6%. Sale of Offices.

The policy of the Stat. 5 & 6, Edw. VI, c. 16, has been adopted in Virginia substantially, and somewhat more comprehensively. (2 Bl. Com. 36.)

W. C.

1. General Doctrine touching the Sale of Offices.

The policy of the common law imperatively forbids the sale, or any contract to sell a public office; a doctrine which was enforced by 5 & 6 Ed. VI, c. 16. (Bac. Abr. Offices, (F).)

W. C.

1. Effect of Contract, or Security for the sale or deputation of an Office.

Wholly void

(V. C. 1873, c. 11, § 5, 6.) 21. Effect as respects the contracting Parties; W. C. 1. Effect as to the contracting Parties, as touching the Office.

Each of them is forever disabled from holding the post or deputation, but acts done before removal are valid. (V. C. 1873, c. 11, § 5 to 7.) 2k. Effect as respects the contracting Parties, as touching Penalties to be visited on them.

Each is to be confined in jail one year, and fined not exceeding $1000, and to be forever incapable of that office or deputation. The seller of the office, &c., to be, moreover, forever incapable of any State