past another's lands upon his own, there is a natural easement." The right of support to his soil against his neighbor is another case.

Actual Grant. An express permission or right of way across one's lands makes an easement by "actual grant," and the Statute of Frauds requires that this must be in writing; the terms are shown by the writing.

Implied Grant. If a man sells a back lot accessible only through the front lot, the law provides an easement by "implied grant," a right of way over the front lot. Even then a lawsuit may be necessary to settle which part of the front lot shall be so used. It is wise, therefore, in making such a purchase or such a sale, to have a writing defining the easement, the right of way. Where an easement by actual grant or by implied grant has been given, a deed to such land can hardly be given "free from all incumbrances."

Prescription. When an apparent right or privilege, such as the use of a path across a lot, has been enjoyed for a long time, an easement by "prescription" is secured. The occupation or use must be adverse, that is, to the disadvantage of the owner, without permission, or under some apparent claim of right, and open and reasonably known to the owner. It must also be uninterrupted and frequent enough to have the quality of continuity. The length of time in many States is twenty years. Similarly the failure to use an easement by prescription for twenty years presumes an abandonment of the right. In England, an easement to the use of light and air could be acquired by prescription, but that appears not to be the case in this country now.

It is well that the engineer should know that title to the land itself may sometimes be acquired by prescription, so that occupation adverse to the formal title should not be passed over too lightly when lands are to be acquired and an owner compensated.

The laws controlling title by prescription are contradictory in different States and a lawyer is necessary to pass upon such titles.

LICENSES

Definition. "" "license A is inferior to an easement; it is only an authority to do a certain act or acts upon another's land. There is no necessity that it be in writing. It may be expressed or implied. An implied license is granted ordinarily to enter the premises for people to do business with the occupant, but not for other purposes than transacting such business.

MORTGAGE

Definition. A mortgage is a conditional conveyance of an estate as a pledge for the security of a debt, and to become void if the debt is repaid.

Commonly the debt is evidenced by a promissory note, for which the mortgage is security. The note is then a personal claim against the mortgagor, in addition to the mortgage; without the note, the mortgagee can look to the land alone for satisfaction. The mortgage, like other deeds, must be recorded.

Legal Title. The legal title is considered to rest in the mortgagee; but in equity the mortgagor remains the actual owner and holds a legal title against everyone except the mortgagee; until debarred by his own default or legal decree, he is entitled to possession, can convey his estate, and in case of death the estate goes to his heirs, in all cases subject to the mortgage. In case of non-payment, the mortgagee may have the mortgage foreclosed, the property sold, and this is commonly provided for in the mortgage deed.

Equity. In Equity, although the mortgage may provide that title to the property shall rest permanently in the mortgagee, in case the mortgage note is not paid at the required time, the mortgagor holds an "equity of redemption" for a time; the direct and immediate forfeiture of the property has the character of a penalty which the law abhors. The length of time for redemption is commonly defined by statute. The foreclosure of a mortgage is not a job for the layman, but for the practising lawyer. The making of a mortgage upon a well established blank form, however, is not an intricate affair, after it has once been understood. The subject of mortgages has received attention in the preceding chapter on Equity.

Release of Mortgage. A mortgage is sometimes released by an entry made on the margin of the book in which the mortgage is recorded. A better method is to have a formal release of mortgage and record this. In case of loss of the book of records by fire or otherwise, the release may be valuable, although the mortgage itself with the note has probably been surrendered to the mortgagor at the time of payment.

ACQUIREMENT OF LANDS FOR ENGINEERING PROJECTS

Methods of Securing Lands. Where lands are required for engineering projects, there are several ways in which they may be secured. Sometimes the advantage to a community or to individuals is such that the lands are given gratis. In other cases, the engineering improvement, perhaps a railroad, seems so desirable that the people owning the required lands are willing to sell at very favorable prices, and it is not uncommon that an agreement to sell may be made by the payment of a very small sum. In such a case, the agreement or bond for a later deed should be in writing. It is desirable to have it acknowledged and also recorded so that anybody buying the land shall buy it subject to notice of such agreement. A large

share of transactions, however, are by simple bargain between the parties and the passing of a deed, either at once or with reasonable promptness.

EMINENT DOMAIN

Definition. When the owner of land refuses to sell, and the improvement is of a public character, the law allows that land shall be taken by the sovereign, the State, under what is called the "right of eminent domain." It is the law that private lands can not be taken by another for a private use; but many improvements of great importance to the community as a whole, would become impossible if private lands could never be taken without the owner's consent. For the purposes of a street, or a sewer, for the laying of a water pipe, also for the purpose of building a railroad, in which as a public carrier the public has rights, it is held that the project is a public use, so that the legislature is justified in granting to the city, or town, or to the railroad, the right to take the lands by this "right of eminent domain." In some States, lands may be thus taken for water power.

General Procedure. The general procedure in most, and perhaps all States is this. It is essential that no agreement can be reached between the parties, and in order that there may be disagreement, it is necessary that the city or railroad shall make the owner an offer which he refuses, and that the owner shall name his price which the city or railroad refuses, or else that the owner refuses to name any price.

Disagreement. There must be a definite failure to agree. In the case of minors who hold title to the property, it may be impossible from the legal standpoint that any agreement should be reached, as the minor can not make any agreement.

Commissioners. After disagreement, taking the case of a railroad, the railroad applies to the court for the appointment of commissioners to value the land; in many States a commission of three is appointed, commonly by the court. In some States, as in Massachusetts, the three County Commissioners in which the land lies, are by law designated as the commissioners to determine the value of the property taken. These commissioners view the land, if they see fit, take such testimony as they care to, and make their report or award to the court. After this award is made, if each of the parties is satisfied or does nothing further, the land becomes the property of the railroad on payment of the specified sum. In case either party is dissatisfied with the award, an appeal is taken and the case is tried before a jury, in this way preserving the rights which the owner had that he may not be deprived of his property " without due process of law," and without "just compensation."

Right Comes from Statute. The exercise of this right is provided by statute, and this must be carefully examined in each case to find what in detail are the proceedings required, and what powers are delegated. The measure of damage in such cases is the difference in value between the lands previous to the taking, and the value of what is left, and this is determined by the commission or, in case of appeal, by a jury; it is found that outside of cities, lands taken for railroads very frequently cost about three times the value of real estate in the neighborhood.

MECHANIC'S LIEN

Definition. When structures had been erected on land, it was sometimes found that the builder failed to pay his men, and a statute was passed to protect the workmen, under what is known as the "mechanic's lien." It seemed that the owner of the land and structure could better protect himself than could the workmen. As a result, Statute Law has been provided so that a workman who has not been paid by his employer, the contractor or builder, may now look for his pay to the building on which he worked, together with the land on which it stands. He has the privilege of bringing suit, in some States within ninety days, and filing his "mechanic's lien" against the structure and the land it occupies, and may after the proper proceedings have it sold to recoup himself.

Materials. In some States and under some circumstances, the man who has furnished materials has a similar lien. The remedy in either case is one provided by statute, and the statute must be strictly observed and followed in all proceedings under it.

BOUNDARIES

Classification. Boundaries are marked by monuments of two sorts, natural and artificial, by marks existing or placed. Natural monuments are streams, lakes, ponds, shores and beaches, highways and streets, walls, fences, trees, springs, rocks. Artificial monuments are those placed by man to mark a point, a line, a corner. A stone bound, a piece of gas pipe, a small sewer pipe, a pile of stones, a mound of earth, a stake, have all been used. The permanence of a stone bound commends it, as compared with a mound of earth or a stake. Natural boundaries are in general superior to artificial in certainty; for precision, a good artificial bound is superior.

Evidence as to Boundaries. The deed is commonly the best evidence of boundaries of land determined by this deed. In determining boundaries, two principles of the Common Law prevail; first, the intent governs; second, a boundary fixed and determined by monuments will be retained

and not give way to boundaries indicated by distances and courses, in the absence of fraud in setting the monuments.

Certainty and Stability. It is quite as important to have a monument or boundary certain and well established as to have it technically right. Stability and certainty are more important than great technical accuracy or precision. This principle is well recognized as to the Public Land Surveys, by a United States statute providing that corners located in the field remain the correct corners, even if seriously inaccurate, "irrespective of whether they were properly located in the first place or not." It is not in the power of an individual or of any State to correct them. First and last, much poor surveying has been done on the Public Land Surveys, and the rule is a good one.

Defects of Description. Ordinarily, a landowner is not a surveyor and the boundary which he knows, is what can be seen on the ground rather than imaginary lines determined by the survey. Inaccurate or imperfect work is always possible in a description by courses and distances, instruments may be out of order, measuring difficult in rough ground, while errors are always possible; monuments commonly are certain.

Relative Values. The relative values then are normally in this order: natural objects, artificial marks, courses and distances, quantity of land.

Monuments. As a rule then, monuments control against courses and distances, the latter often helping to identify the monuments described and to determine between conflicting monuments; but monuments, when certain, control even where courses and distances show a wide departure from them, and the line from one monument to another is straight if not otherwise described.

Courses and Distances. Courses and distances sometimes give much better results, to an extent to indicate a probable intent to adopt the boundaries indicated by them; in such case they will prevail against monuments. Such instances will probably be rare.

Quantity of Land. In a similar way, the quantity of land is sometimes the primary and clear intent of the deed, and this may then take precedence over courses and distances.

Where no monuments can be found, courses and distances control. In case of a discrepancy between the monuments on the one hand, and a survey by courses and distances on the other, it may be well to consider the possibility of disturbance of the monument, if artificial, whether by accident or by fraud. In one case it was decided that a monument referred to in a deed and placed soon after, was good, but not one set long after by one of the interested parties without notice to the others. In another case it was held that a stake is a frail witness, but when nothing better is found, it may be conclusive as a monument.