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stream of water, where the same is necessary to accommodate the public travel, and to demand toll of persons using the same, is also a franchise to be granted and regulated by acts of legislation.
10. If the charter for constructing such a bridge should contain a restriction as to the distance within which no other bridge shall be erected, the legislature could not, constitutionally, authorize it to be done. It would be a contract where the consideration on the one side is the rendering a benefit to the public in doing what the franchise authorizes to be done, and, on the other, the advantage to be derived from the exercise of such franchise, *and de- [*231 tracting from the profit thereof, would be a violation of the obligation of the contract. And the same rule would be applied in respect to any two competing franchises, like ferries, bridges, or railroads.
11. But this does not affect the right to exercise eminent domain over the franchises of existing corporations, in the same manner as over any private property. Thus a legislature may authorize a bridge to be erected so as to occupy and destroy a ferry, or a railroad company or a city to appropriate the bridge property of a company, and thereby destroy its franchise; or even may authorize one railroad company to destroy the franchise of another, in constructing its own road, under the exercise of this power of eminent domain, provided compensation is, at the same time, secured to the party thus deprived of the prior franchise. And though the new franchise might diminish, somewhat, the one already existing, it is competent for the legislature to create it and authorize it to be enjoyed, provided the injury thereby resulting to the first, can be compensated in damages, and provision therefor is properly made ; though, it will be remarked, that the case where this was applied, was where the franchises were of an entirely different nature, the one being the flowing of lands for mill purposes, the other, of maintaining a railroad. It was not the case of the erection of a bridge within the
i Boston & Lowell R. R. Co. v. Salem & Lowell R. R. Co. 2 Gray, 1; Newburgh Turnpike Co. v. Miller, 5 Johns, Ch. 101 ; Redf. Railw. 131; Dartmouth College v. Woodward, 4 Wheat. 518, 638.
2 Central Bridge Co. v. Lowell, 4 Gray, 474; West River Bridge Co. v. Dix, 6 How. 507 ; White River Turnpike Co. v. Vermont Cent. R. R. Co. 21 Vt. 590; Richmond R. R. Co. o. Louisa R. R. Co. 13 How. 71, 83; Redf. Railw. 129, 130; Boston Water Power Co. v. Boston & Worcester R. R. Co. 23 Pick: 360; Boston & Lowell R.R. Co. v. Salem & Lowell R. R. Co. 2 Gray, 1.
limits of restriction prescribed by the terms of the grant of a prior bridge franchise.
12. But a much more difficult question has been raised, from time to time, as to how far a legislature is, by construction, restricted in granting new franchises, the exercise of which may impair, or seri
ously injure those already existing. It has been contended, [*24] and so some courts have held, that where a corporation, *upon
the faith of a grant of a franchise, had gone on and constructed a bridge, for instance, at great cost, with a view of accommodating a line of travel and obtaining reimbursement from the tolls thereby to be received, there was an implied obligation that the same legislative body should not, within the life of this charter, further authorize the erection of a new bridge so near the first as essentially to divert the travel therefrom, and materially impair the value of the franchise. Among the leading cases which have occurred where this question has been raided, was that of the Charles River Bridge v. Warren Bridge, which was heard first before the Supreme Court of Massachusetts, and afterwards by the Supreme Court of the United States. From the principles established in this and similar cases cited below, the rule upon the subject seems to be, that though such charters are contracts which a legislature may not violate any more than an individual, yet the charter and the contract are to be construed strictly, and nothing is to be taken by implication. If, therefore, in the first grant, there were no terms of restriction of power in granting other franchises, or expressly limiting the exercise of this power, the legislature may authorize the erection of a new bridge, though its effect would obviously be to destroy the value of the first, as was the case with the Charles River Bridge.?
13. The franchises of corporations authorized to receive tolls, are liable to be taken and sold for the debts of the corporation, in which case the purchaser acquires the right of exercising the same for such period of time as will serve to pay the debt for which the same was sold. But this being a matter of local statute regulation, will not be pursued in detail.3
1 Boston Water Power Co. v. Boston & Worcester R. R. Co. 23 Pick. 360, 399.
2 Charles River Bridge Co. v. Warren Bridge Co. 7 Pick. 344 ; 8. c. 11 Pet. 420 ; 2 Greenl. Cruise, Dig. 66, n.; Piscataqua Bridge Co. v. New «Hampshire Bridge Co. 7 N. H. 59; Richmond R. R. Co. v. Louisa R. R. Co. 13 How. 71,81; Redf. Railw. 131.
3 Mass. Gen. Stat. c. 68, 25–34.
1. Easements defined.
8. How gained by express grant.
13. Effect of dividing the dominant estate.
14. Easement of prospect. 15, 16. Easements implied in grant of houses, &c. 17, 18. Easements acquired by prescription.
19. User defines extent of implied grant. 20, 21. What user sufficient to imply a grant.
22. . Of support of soil by adjacent land.
As to easements in natural and artificial streams.
56. How easements may be destroyed or determined.
62. Of mines and mining rights.
1. A much more common as well as numerous class of incorporeal hereditaments is embraced under the designation of Easements. They answer to the predial servitudes of the civil law, and consist of a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with a general property in the owner. The parcel to whose ownership the right is attached, is called the dominant, while that in or over which the right is to be exercised, is called the servient estate. And as these rights are not personal, and do not change with the persons who may own the respective estates, it is very common, when treating of easements, to personify the estates as themselves enjoying them or being subject to them.
2. Among the rights and privileges which are embraced under the name of Easements, is that of way, or the right by the owner of one parcel of land to pass over the land of another.
Of water, or the right of drawing water from, through, or across the servient for the benefit of the dominant estate, or of discharging water from
1 Termes de la Ley, “Easement;" 3 Kent, Com. 435; Gale & Whatel. Ease. 1; Walk. Am. Law, 265 ; Tud. Lead. Cas. 107; Wolfe v. Frost, 4 Sandf. Ch. 72, 89; Hills v. Miller, 3 Paige, Ch. 254; Case of Private Road, 1 Ashm. 417; Boston Water Power Co. v. Boston & Worcester R. R. Co. 16 Pick. 522. Though sometimes used as convertible terms, easements are generally understood to be the benefits which one estate enjoys in or over another, while servitudes imply the burdens that are imposed upon an estate in favor of another, the dominant enjoying the easement, the servient sustaining the burden. Washburn, Easements, 5.
the dominant over or upon the servient estate and the like. Of light and air, or of having light or air come uninterruptedly to the dominant over or across the servient estate, and of support, of the soil or buildings of the dominant by the adjacent soil or buildings of the servient estate, and of party walls.
3. These easements are strictly incorporeal hereditaments, though imposed upon corporeal property, and consist simply of a right which is in its nature intangible and incapable of being subject of livery. They are, therefore, to be distinguished *from what [*26] was called in the early books, a “profit a prendre," which consists of a right to take a part of the soil or produce of land, such as sand, clay, grass, trees, and the like, in which there is a supposable value. Thus, as there is, properly, no property in water beyond its use, a man may have an easement to enter upon another's land and take water therefrom for the benefit of his own estate. . But he may not, as an easement, have a right to go upon another's land to fish in these waters and take fish therefrom, because it is in the nature of a profit out of it.2
4. The definition given above, implies, that for an easement to · exist there must be two estates in regard to which it is predicated, and that it is not affected by any change of ownership of the respective estates, except that they must belong to different persons, for no man can, technically, be said to have an easement in his own land. And the consequence is, that if the same person becomes owner in fee-simple of both estates, the easement is extinguished.3
5. These easements are divided into affirmative, or those where the servient estate must permit something to be done thereon, as to pass over it, or discharge water upon it, and the like; and negative, where the owner of the servient estate is prohibited from doing some
1 Orleans Nav. Coy v. Mayor, &c., 2 Martin, 228. Inst. Lib. 2, T. 2.; Hewlins y. Shippam, 5 B. & C. 221.
2 Wolfe v. Frost, 4 Sandf. Ch. 72; Bailey v. Appleyard, 3 Nev. & P. 257; Manning v. Wasdale, 5 A. & E. 758; Tud. Lead. Cas. 107; Bland v. Lipscombe, 30 E. L. & E. 189; Race v. Ward, id. 187, 192; Waters v. Lilley, 4 Pick. 145; Gateward's Case, 6 Rep. 60; Boston Water Power Co. v. Boston & Worcester R. R. Co. 16 Pick. 512, 522, though the use of the easement may deprive the owner of the land of the means of using it, as by flowing water upon it for working a mill on the dominant estate.
* Tud. Lead. Cas. 108; Wolfe v. Frost, 4 Sandf. Ch. 71, 89 ; Gale & Whatl. Ease. 52; Grant v. Chase, 17 Mass. 443, 447; Seymour v. Lewis, 13 N. J. 450. VOL. II.