5. Before a conveyance is recorded, the person executing it must acknowledge, before a proper officer, that he executed the conveyance; and the officer must certify in writing on the back or margin of the instrument, that the . person did so acknowledge. In every state, either some or all of the following officers may take acknowledgment: judges of courts and justices of the peace; commissioners of deeds, appointed for that purpose; notaries public; mayors of cities and aldermen. Every deed duly acknowledged and delivered to the proper recording officers to be recorded, is, with the acknowledgment, copied at length, word for word, in a book provided for that purpose.

§ 6. The deed usually given is a warranty deed, in which the grantor agrees that he is seized of the premises in feesimple, (is the absolute owner,) and that he will warrant and defend the premises in the quiet and peaceable possession of the purchaser and his heirs, forever. A quit-claim deed merely conveys the interest or claim of the grantor, without any warranty of title against any other claimant.

§7. A mortgage is a writing which conveys to another person a right to property as security for the payment of a debt, and is to have no force or effect when the debt is paid. A mortgage conveys land in the same manner as a deed; but a condition is added, providing, that if the debt for which the land is pledged shall be paid by a certain day, the instrument shall no longer have effect.

§ 8. When land is sold, and any part of the purchase money is to be paid at a future day, the seller usually conveys the land by deed to the purchaser; and the purchaser executes a mortgage to the seller, pledging the land as security for the payment of the money remaining unpaid. A mortgage also contains a condition, that if the money shall not be paid according to the agreement, the mortgagee, or person holding the mortgage, may sell the land to raise the money due; but if he sells it for more than the amount, the overplus must be paid to the mortgager.

§ 9. To effect a full conveyance of real estate, a wife must join with her husband by signing the deed with him; otherwise, if he should die in her lifetime, she would have for life the use of one-third of such estate. This right of a widow is called the right of dower. It is common, therefore, for the wife also to sign the deed; and she must also

acknowledge, before the officer taking the acknowledg ment, and apart from her husband, that she signed the deed freely, and without compulsion of her husband. In some states, the acknowledgment of the wife out of the presence of her husband is not required.

CHAPTER XLIX.

INCORPOREAL HEREDITAMENTS; RIGHT OF WAY; AQUATIC RIGHTS; PARTY WALLS; DIVISION FENCES, &C.

§ 1. THE term, incorporeal hereditaments, may need explanation to some readers. A hereditament is a thing capable of being inherited. Land, and all things attached to it by the course of nature, or the hands of men; as trees, herbage, water, buildings, &c., which are comprehended in the term real estate, are corporeal hereditaments. Incorporeal hereditaments are inheritable rights which grow out of corporeal inheritances, or which consist in their use and enjoyment; as, the right of pasturing a common; a right of passage over the land of another; a right to the use of waters, sometimes called aquatic rights, &c.

2. A right of way, is a right of private passage over another man's ground. This right is sometimes granted by the owner of the soil; and to make it a freehold right, it must be created by deed, though it be only an easement upon the land of another, and not an interest in the land itself. An easement is, in general, an accommodation. In law, it is any privilege or convenience which one has of another, by grant or otherwise, as a right of way, &c. By the grant of an easement, the grantee acquires no other right than what is necessary to the fair enjoyment of the privilege.

3. If it is a mere personal right, it can not be assigned to any other person, nor transmitted by descent. It is so limited, that the owner of the right can not take another person in company with him; and when he dies, the right dies with him. But a right of way belonging to an estate,

may be conveyed when the land is sold. Thus if a man own lot A and lot B, and he used a way from lot A, over lot B, to a mill, or to a river; and if he sells lot A, with all ways and easements, the grantee will have the same privilege of passing over lot B as the grantor had.

§ 4. A right of way may arise from necessity. If a man sells a part of his land, and there is no other way to the remaining part, he is entitled to a right of way to it over the land sold. And if a man sells land wholly surrounded by his own land, the purchaser is entitled to a right of way to it over the other's ground, even though no such right is reserved. The right of way passes to the purchaser, as necessarily incident to the grant, or included in it.

§ 5. If one man should give another license to conduct water in lead pipes through his land, the man having such license may enter on the land, and dig therein, to mend the pipes. So if a person has a shop on another's soil by permission, he has, of necessity, a right of passage to and from it between the highway and the shop. The general rule is, that when the use of a thing is granted, every thing is granted which is necessary to the enjoyment of its use.

§ 6. A person has a temporary right of way over land adjoining a public highway, if the highway is out of repair, or is obstructed by snow, a flood, or otherwise. But the right of going upon adjoining lands does not apply to pri vate ways. A person having a right to a private way over another's land, has no right to go upon adjoining land, even though the private way is impassable. The reason given is, that the owner of the way may be bound to repair it, and its impassable state may be owing to his own neglect. But if public roads become obstructed, it is for the general good that the public should be entitled to pass in another direction.

§ 7. A right of way sometimes arises by prescription; which is the right or title to a thing derived from long use and enjoyment. A person who is in possession of an interest or privilege which he and those from whom he received it, have enjoyed, undisturbed, for a long course of years, may, by virtue of this long use, have acquired a valid title to it: hence, he is said to hold it by prescription. A right similar to this, is that which a man acquires to land which has been peaceably held by himself, or by himself and pre

ceding owners, for twenty years. Although the first occupancy was obtained without grant, the long free use of the land is, in law, equivalent to a grant, and implies a valid

title.

§ 8. Another kind of easement is the right of the public to the use of navigable waters. The title of owners of land bounded on a river, extends to the center of a stream; but the public, where the river is navigable for boats and rafts, have a right of passage therein as a public highway. The proprietors of the adjoining banks may use the land and water, but not in a way inconsistent with the rights of the public. On the other hand, neither the state, nor any individual, has the right to divert the stream from its natural channel, and render it less useful to the owners of the soil.

§ 9. Islands in a river belong to the persons who own the land on that side of the river to which they are nearest. If, however, they are so situated as to cover the middle of the river, they belong to the owner on each side.

§ 10. Where lands are bounded by the sea, or by navigable rivers where the tide ebbs and flows, the right of the soil extends to high-water mark; and the shore below common, but not extraordinary high-water mark, belongs to the public.

§ 11. The owners of land adjoining highways, have a right to the soil to the center of the road: the public have only a right of passage while the road is continued. The owners of the soil may maintain a suit against any person who encroaches upon the road, or digs up the soil, or cuts down trees growing on the side of the road. They may carry water in pipes under it, and have every use of it that does not interfere with the rights of the public.

§ 12. A party wall belonging equally to the owners of two houses, may be pulled down by the party wishing to erect a new house and a new wall; but he must pull down and rebuild the new wall in a reasonable time, and with the least inconvenience and if it is clearly necessary that the old wall should be repaired, the other party is bound to contribute ratably to the expense of the new wall; but not a higher one than the old, nor one with more costly materials. All extra expense must be borne by the party building the new wall.

§ 13. Where the wall of the house to be pulled down be

longs exclusively to the owner of the house, and stands wholly on his lot, yet if the beams of the other house rest upon the wall pulled down, and have done so long enough to establish an easement by prescription, the owner of such other house is entitled to have his beams inserted for a resting place in the new wall.

§ 14. The owner of a house in a compact town, intending to pull it down, and to remove its foundations, is not liable for injury to the adjoining house, if he gives due notice of his intention to the owner of such adjoining house, and removes his own with reasonable care.

§ 15. The subject of division fences between the owners of adjoining lands might, from its nature, seem to require notice in this place; but the obligations of the occupants of adjoining lands in regard to partition-fences, are almost exclusively the subject of statute regulations.

§ 16. Every proprietor of lands adjoining a stream, has naturally an equal right to the use of the water that flows in the stream adjacent to his lands, as it was wont to run." Each may use the water while it runs upon his own land; but he can not unreasonably detain it, or give it another direction; and he must return it to its ordinary channel when it leaves his estate. He can not, by dams or any obstruction, cause the water injuriously to overflow the grounds of the neighbor above him, nor so use or apply it as materially to injure his neighbor below him.

§ 17. But this right to the use of waters, as an easement to the land, may be acquired and lost, or abridged and enlarged, by prescription. A man may diminish the quantity of the water, or corrupt its quality by the exercise of certain trades; and by such use of the water for a sufficient length of time, he is in law presumed to have acquired it by grant; and this presumption is the foundation of his right by prescription. The time of such use and enjoyment of water necessary to establish such right, is twenty years, except in states in which a different period is fixed by

statute.

§ 18. It is a general and established doctrine, that an exclusive and uninterrupted enjoyment of water, or of light, or of any other easement, in any particular way, for twenty years, or for any period less than twenty years, which in any particular state is the established period of limitation,