were declared to be and remain "public highways;" and where the opposite banks of any stream, not navigable, belonged to different persons, "the stream and the bed thereof" were declared to be common to both. In regard to this provision, our court has decided that in the case of navigable rivers, the easement only is reserved to the public, while the fee of the bed of the river belongs to the adjacent owners; and that this act only affirms the common law, in relation both to navigable and unnavigable streams; namely, that opposite owners should own to the middle of the stream, as in case of roads they own to the middle of the road. It will be observed, that the words of the provision are "the stream and the bed thereof shall be common to both." A literal interpretation of these words would make the opposite owners tenants in common of the bed of the stream, instead of each being a tenant in severalty to the middle, as the court intended above. Perhaps this distinction may be of importance hereafter. Our court has also decided that the legislature has no authority to obstruct a public easement in navigable rivers; and that where a dam was permitted to be laid across, by reason of which navigators sustained damage, the owners of the dam were liable, although they were authorized by law to build the dam, and used all diligence to prevent it from being an obstruction. But the State may legislate respecting these rivers, and even affect their navigation, provided all persons are equally subjected to the inconvenience resulting from such navigation, and provided the navigation, though affected, be not actually destroyed. It may become a difficult question hereafter to determine what are navigable rivers within this act. The second section of the act of Congress of 1796 provides that navigable rivers shall not be included in public surveys; but does not indicate what shall be considered such; and it is left to the discretion of the surveyor to include a given river or not. But of course his decision cannot be conclusive. In the deed of cession by Virginia, the description specified "all the territory to the north-west of the river Ohio." And from these words it has been decided, that the owners on this side have no right of soil, further than to the edge of the river at low-water mark. But as a matter of expediency, amounting almost to necessity, the States bordering on this river have habitually exercised a common jurisdiction. The question whether the right of fishing in these navigable rivers is a public right open to all, or a private right belonging to the adjacent owners, has not been judicially decided in this State. In practice, it has been treated as a public and common right. And in Pennsylvania, such has been the decision with respect to the rivers of that State. (a)

(a) It has been frequently held in this country, that the ebbing and flowing of the tide in a river is not the test of its navigability. Whether a river is navigable or not, is a question of fact to be determined in each case upon the facts. This is clearly the doctrine of the United States courts. Russell v. The Empire State, Newberry's Adm. R. 541; Spooner v. McConnell, 1 McLean, 337; Propeller Genesee Chief v. Fitzhugh, 12 How. 443; The Ad Hine v. Trevor, 4 Wallace, 555. Those rivers must be regarded as public navigable rivers in law, which are navigable in fact; and they are

§ 127. Private Easements. (a) Private easements comprehend all those which belong to particular individuals. They relate chiefly to the use of land, water, air, and light.

As to Land. (b) The most important easement under this head is the right of private way over another man's ground. This right may arise in three ways: from contract, as where I expressly grant this right to you; from prescription, as where you have enjoyed the right unmolested for a certain period, which, under our statute of limitations, would probably be twenty-one years; (c) or from necessity, as where I sell you land so hemmed in by mine, that you cannot come at it without crossing mine. (d) This right of way is always confined to one particular track, which the owner of the right is bound to keep in repair; and if he suffers it to become impassable, he cannot, as in case of public highways, pass over the adjoining land. There are several other easements under this head, which are denominated urban, from being confined chiefly to cities and populous towns. Such are the right of support, as where I have a right to rest my timbers on the wall of your house; (e) the right of drip, as where I have a right to let the water fall from my roof upon your premises; and the right of drain, as where I have a right to convey water through your premises. These rights may arise either from contract or prescription, but I presume not from necessity. When a party wall stands equally on the land of each adjacent owner, and has been erected at joint expense, each owner thereby acquires a right to the use of such wall, and is bound to contribute towards all necessary repairs; and the same is true,

navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are, or may be, conducted in the customary modes of trade and travel on water. The Daniel Ball, 10 Wall. 557. For other cases, see note on admiralty jurisdiction in chapter on Judicial Department. An act of Congress declaring a bridge built over a navigable river dividing two States to be a lawful structure, and a post route, legalizes the bridge as built, and abates a suit brought to declare the bridge a nuisance, though ready for hearing. The Clinton Bridge. 10 Wall. 451. See also the Wheeling Bridge case, 18 How. 429. But in a late case in Kentucky, these decisions are said not to apply to questions as to the ownership of land under the water, and subject to the easement of the public, and the court held that a grant of land bounded on the Ohio extends to the centre of the stream. Barry v. Snyder, 3 Bush (Ky.), 266. But see Martin v. Nance, 3 Head, Tenn. 649; Tomlin v. Dubuque, &c., R. R. Co., 32 Iowa, 106; Pollard's Lessee v. Hagan, 3 How. 212; Martin v. Waddell, 16 Peters, 410; Mumford v. Wardwell, 6 Wall. 436. The courts of Pennsylvania, New York, Iowa, and several other States, have decided the question in the same way. Mississippi and Illinois, however, hold differently. For a full discussion of the cases on this subject, see an article in the Am. Law Rev. for July, 1868.

(a) Morgan v. Mason, 20 Ohio, 401.

(b) See 2 Black. Com. 35; 3 Kent, Com. 434; Lasala v. Holbrook, 4 Paige, 169; Rust v. Low, 6 Mass. 90; Stackpole v. Healy, 16 id. 33.

(c) 3 Kent, Com. 441.

(d) Pinnington v. Galland, 20 Eng. Law & Eq. 561; N. Y. Life Ins. & Trust Company v. Milnor, 1 Barb. Ch. 353. Carbrey. Willis, 7 Allen, 364. A way of necessity ceases as soon as the necessity to use it ceases. Abbott v. Stewardstown, 47 N. H. 228.

(-) Richards v. Rose, 24 Eng. Law & Eq. 406. As to the right of the owner of the surface to the support of mineral strata when the mines are owned by another, see Humphries v. Brogden, 1 Eng. Law & Eq. 241.

where the wall stands wholly on the land of one, provided the other has acquired, either by contract or prescription, a right to use it as a party wall. (a) But without special provision, which is made in many cities, neither party can be compelled to contribute to the original erection of a party wall, or to furnish a portion of his land for that purpose. At common law, the same rules govern partition fences, but in most of the States these are the subject of statute regulation. In Ohio, for example, a partition fence between two enclosures, without any agreement, is at the joint expense of both proprietors. But if one owner does not choose to enclose his land, he is not bound to contribute. As to the foundations of buildings in compact towns, in the absence of special provision, the rule is, that each man may pull down his, or lay new ones, on giving notice and using ordinary care, without liability for injury to those next to him.

As to Water. (b) Of the use of water in general, it must be observed, that water, like light and air, was undoubtedly intended to be the property of all mankind; and therefore, while the use of running water may belong to a particular individual, the thing itself can never be exclusively appropriated. An easement is all the property that can be had in it. If, either from owning the soil covered by water, or from contract, or prescription, I am entitled to use a certain body of water, either for turning a mill, or for fishing, or for any other purpose, the law protects me in the enjoyment of that right, but at the same time forbids the appropriation of that water to myself, any further than is necessary for that particular use. (c) We have seen that the navigable waters of this State are

(a) As to the liability of the owners of a party wall to contribution, see Sherred v. Cisco, 4 Sandford, 480, which decides that where a party wall, which has been jointly built by two adjoining owners, one half on land which each owns in severalty, is destroyed by fire, there is no obligation resting upon either to rebuild it, or to unite in building another party wall. The parties are not tenants in common of the wall; but each owns in severalty the portion of the wall situated on his own land, with no qualification except that neither has a right to pull it down without the other's consent. See Campbell v. Meisier, 4 Johns. Ch. 334; Wolf v. Frost, 4 Sandf. Ch. 72. Where the agreement to build a party wall contains no express stipulations for its perpetual continuance, such a stipulation will not be implied, although it has been used by both parties for a period of more than twenty-one years. If it becomes reasonably proper, through the increased value of the property, to erect a building for which the old wall is not suitable, the owner of one lot may, in such a case, pull down his portion of the party wall, using only reasonable care to avoid injury to his neighbor. Hieatt v. Morris, 10 Ohio State, 523. A covenant in an agreement for the erection of a party wall, by which the other party is to pay half the cost when he uses it, runs with the land, and binds assignees. Platt v. Eggleston, 20 Ohio St.

414.

(b) See 2 Black. Com. 14; 3 Kent, Com. 439; Angell on Watercourses. An act relative to the location and construction of ditches, drains, and watercourses, was passed March 24, 1859.

(c) Newhall v. Ireson, 8 Cush. 595; Luther ". Winnisimmet Co., 9 id. 171; Eliott v. Fitchburg R. R. Co., 10 id. 191; Ashley v. Wolcott, 11 id. 192; Thurber v. Martin, 2 Gray, 394; Chandler e. Howland, 7 id. 348. An action for a nuisance, caused by diverting or obstructing the water, will not lie unless the damage is real, material, and substantial. Cooper v. Hall, 5 Ohio, 321; McElroy v. McElroy, 6 Ohio State, 187. As to the right of a mill-owner, in order to improve the easement, to build a bridge over a public highway, see Bisher v. Richards, 9 Ohio State, 495. An action is not

common highways; but that the adjacent owner owns to the middle of the stream. It follows that he may have a private easement in the water not inconsistent with the public easement. For example, he has the exclusive right of drawing nets upon his own bank. So he may take the water to turn a mill or perform any other service which does not interfere with navigation. As to waters not navigable, we have seen the only difference to be, that the public has no easement therein. Accordingly, no individual can have a right even to fish in the stream, except the adjacent owner, unless by contract or prescription. The exclusive use of the water belongs to the adjacent owner, subject to the great leading principle of not interfering with the rights of owners above and below. (a) As to grants of lands adjoining rivers, the principle is as in case of roads, that they extend to the middle, unless the words of a grant exclude such an inference. The implication is always in favor of the extension. But when the words of the grant expressly limit it to the edge of the stream, low-water mark is the boundary line; and the adjacent owner would have no right to use the water beyond that line. (b)

As to Light and Air. (c) In these elements, as in water, there can be no absolute property; but the owner of land may acquire a right to use them in a certain way, so that his neighbor can do nothing to obstruct him in that use. For example, if, for the period of prescription, I have had the light admitted into my house in a certain direction, and have enjoyed a pure atmosphere, I have acquired such a right, that my neighbor can do nothing on his land, either to obstruct the light or taint the atmosphere, without being guilty of a nuisance; at least the rule is so laid down in the books. But it must be taken with so many qualifi

maintainable against a person who by digging a well intercepts from a stream water which would otherwise have flowed into it by percolation through the soil, though such loss of water was a natural effect reasonably to be expected from digging the well. Chasemore v. Richards, 26 L. J. (N. s.) Ex. 393; same case in House of Lords, 29 L. J. (N. s.) Ex. 81. As to surface water, it has recently been held that an action is maintainable for erecting an embankment on a man's own land, by which the surface water of adjoining land is prevented from flowing in its natural course. Tootle v. Clifton, 22 Ohio State, 247.

(a) Embrey r. Owen, 4 Eng. L. & Eq. 466; Wood v. Sutcliffe, 8 id. 217; Tyler v. Wilkinson, 4 Mason, 397; Cooper v. Williams, 4 Ohio, 253, 286; Buckingham v. Smith, 10 id. 288, 297. As to the rights of adjoining owners to water flowing in subterranean courses, see Acton v. Blundell, 12 M. & W. 324, limited by Dickinson v. Grand Junction Canal Co., 9 Eng. L. & Eq. 513.

(b) M'Cullock v. Aten, 2 Ohio, 307; Hopkins v. Kent, 9 Ohio, 13; Benner v. Platter, 6 Ohio, 504; Lamb v. Rickets, 11 Ohio, 311.

(c) See 2 Black. Com. 14; 3 Kent, Com. 358. The English law on this subject is not favorably received in this country. Myers v. Gemmell, 10 Barb. 537; Palmer v. Wetmore, 2 Sandf. 316; Ray v. Lynes, 10 Ala. 63; Fifty Associates v. Tudor, 6 Gray, 255; Hubbard v. Town, 33 Vt. 295; Ward v. Neal, 35 Ala. 602. It has since been settled in Ohio that an easement in light and air cannot be gained by prescription in this State. Hieatt v. Morris, 10 Ohio State, 523; Mullen v. Stricker, 21 Ohio State, 139; Richardson v. Pond, 15 Gray, 387. Nor will the law of implied grants, or implied reservations in the case of the sale by the owner of two adjacent lots or one of them, growing out of the nature or use of the structures existing upon the lots at or prior to the time of the conveyance, be applied to such easements. Mullen v. Stricker, supra.

cations, particularly in cities, and the application of it is of so rare occurrence, that a bare allusion to it is as much as I have room for.

§ 128. Fixtures. (a) From the view heretofore given of what constitutes realty, it is obvious that there may be certain articles of property which occupy so nearly a middle place between realty and personalty, that it is difficult to say at once to which class they belong. This is the case with what are called fixtures, including those chattels, which, by being annexed as appendages to the realty, become parcel thereof. The annexation may be either actual or constructive. Thus locks, doors, windows, blinds, wainscots, and the like, are actually annexed, while title-deeds, keys, and the like, are constructively annexed. It is of little consequence what are fixtures and what are not, until there is a change of possession, but then it will be a question of great importance: and this will happen in the three following cases: 1. When the owner dies. In this case it is not important to his creditors, because if the personalty will not satisfy their claims, they can resort to the realty. But between the widow and heirs, it is important; because, if there be no children, the widow has the whole of the personalty: otherwise, half of the first four hundred dollars, and a third of the residue; and this she has absolutely; whereas, she can in no case have more than a life-estate, in onethird of the realty. (b) 2. When the owner sells. In this case, the privileges and appurtenances, in which fixtures are included, pass with the land; and it is of course material, as between the

(a) See Amos on Fixtures; Hill on Fixtures; Brown on Fixtures; Chitty's Blackstone, 282, note; 2 Kent, Com. 341; 1 Swift's Dig. 74; 10 American Jurist, 53; Elwes v. Maw, 3 East, 38; Whiting . Drastow, 4 Pick. $10; Wall v. Hinds, 4 Gray, 270; King v. Johnson, 7 id. 239; Hill v. Wentworth, 28 Vt. 429; Fullam v. Stearns, 30 id. 443; Martin v. Roe, 7 El. & B. 237; s. c. 40 Eng. L. & E. 68; Van Ness v. Pacard, 2 Peters, 137. In Teall v. Hewitt, 1 Ohio State, 511, where this subject is discussed at length, the united application of the following requisites was regarded as the safest criterion of a fixture: 1. Actual annexation to the realty, or something appurtenant thereto. 2. Appropriation to the use or purpose of that part of the realty with which it is connected. 3. The intention of the party making the annexation to make the article a permanent accession to the freehold; this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation has been made. See also Voorhees v. McGinnis, 48 N. Y. 278; Fortman v. Goepper, 14 Ohio State, 558; Hill v. Sewald, 53 Penn. St. 271; Meig's Appeal, 62 Penn. St. 28. "The general principle to be kept in view, which underlies all questions of this kind, is the distinction between the business which is carried on in or upon the premises, and the premises or locus in quo. The former is personal in its nature, and articles that are merely accessory to the business, and have been put in the premises for that purpose, and not as accessories to the real estate, retain the personal character of the principal to which they appropriately belong, and are subservient. But articles that have been annexed to the premises as accessory to whatever business may be carried on upon it, and not peculiarly for the benefit of a present business, which may be of a temporary character, become subservient to the realty, and acquire and retain its legal character." Applying these principles, the stone piers of a railroad bridge were held not fixtures as between the railroad company and the owner of the land. Wagner v. Cleveland & T. R. R. Co., 22 Ohio State, 563, 577-8.

(b) The widow now in many cases takes a larger estate than this, and often the fee. See chapter on Title by Descent, notes.