§ 323. Tithes.-Strictly speaking, tithes are a tenth of the annual increase and profits of lands and stock upon lands and the personal industry of the inhabitants. In all countries where there are religions established and maintained by public law, provision is made for the support of the clergy. It is supposed that tithes were introduced in England in the sixth century, when Augustine, the monk, planted Christianity among the Saxons. The first decree enforcing the payment of tithes was made A. D. 786. At first, these tithes were paid to the bishops, who allotted them among the clergy of their dioceses, but when the bounds of the parishes became definitely fixed, the tithes were paid directly to the priests of the several parishes. Sometimes, by agreement between the landowner and the parson, some land or other recompense was given in lieu and satisfaction of tithes. And sometimes by prescription certain lands or persons were exempted from the payment of tithes. A modus, as it is called, was a special manner of tithing, whereby the general law was altered as where something in lieu of the tenth part of the annual increase was paid to the parson. To make a modus good, it must be certain and invariable. The thing paid must be beneficial to the parson. It must be different from the thing compounded for. It must be as durable as the tithes discharged by it. Although interesting as a historical study of the growth and progress of the law, it is not deemed wise or profitable to consider more fully in this place these matters which do not enter into the practical administration of the law in this country.

§ 324. The right of common. This is defined to be a profit which a man hath in the land of another. By the English law, the lords of manors were required to allow certain of the manorial lands to remain unenclosed,

upon which the inhabitants could pasture what were called commonable beasts, which were either beasts of the plow, or such as manure the ground. As lands became more valuable, the lords of the manors began to enclose the commons, and parliament in the reign of George III enacted a law which has been repeatedly amended, regulating the inclosure of commons. The right of common

in the United States is a narrow right. In tide-waters. the right of taking fish is common to all citizens. In rivers where the tide does not ebb and flow, it is said that the proprietor of the bank has an exclusive right of fishery to the thread of the stream, but it has been held that in large navigable rivers, such as the Susquehanna, the public at large have a common right of fishery. For the taking of fish where the public have the right, no person can lawfully go upon the land of another without license. In ordinary streams within the boundaries of a man's land, or where the stream is the dividing line between two proprietors, no one has a right to fish without the license of the riparian proprietors.

Kent sums up the American doctrine thus: The right of fishing in navigable or tide waters below highwater mark is a common right. In streams not navigable, the owners of adjacent lands have the exclusive right of fishing each on his own side. Such right is held subject to the public use of the waters as a highway and to the free passage of fish.

of way is the Ways are either established either

§ 325. Right of way. The right right of going over another man's land. public or private. A public way may be by the dedication of the owner of the land, or by the appropriation of a man's land for the purpose in proceedings at law, under the authority of the state by virtue of its right of eminent domain.

First we shall discuss the manner in which the owner may dedicate his land as a public way. Dedication is the setting apart of land for public use. It is essential to every valid dedication that it should conclude the owner, and that as against the public it should be accepted by the proper local authorities or by general public user. There are two kinds of dedication, statutory dedication and common-law dedication. Where the statute requires that the dedication shall be evidenced in a particular way, as by plats or maps, and that they shall be acknowledged before some competent officer, these requirements must be strictly complied with. Unless the proper local authorities accept the dedication, such ways can not properly be called public highways, in the sense that the expense of maintenance can be cast upon the public. But where lots have been purchased, according to plats or maps showing certain streets and alleys upon them, these alleys and streets will be kept open as ways for the benefit of such persons as have made such purchases. A statutory dedication is by way of grant, a common-law dedication arises by way of an estoppel in pais. No writing is necessary to a common-law dedication-no formality. The mere throwing open the land to the use of the public for a way is a dedication if the public accepts it. It must be clear, however, that the landowner intends to give the right. The fact that the owner acquiesced in the use of the way by the public for twenty years is sufficient evidence of intent. If the public are in the habit of using such a way, and the owner does not wish to dedicate it, he can by unequivocal acts assert his right, as by putting gates or fences across the way even once in a year. It has been said that one act of obstruction by the owner is better evidence of intent than years of acquiescence in the use by the public. But if the use is continuous and uninterrupted for twenty years the way

is established. Dedication may arise in a shorter period than twenty years, when the intent to dedicate is positive and manifest, and the question of intent is a question of fact for the jury. When a dedication is once made it can not be revoked.

§ 326. Private rights of way.-Private rights of way are of two kinds: those which are purely personal and can not be assigned, and those which are appurtenant or annexed to an estate and pass with a conveyance of the estate. A private way may be created by a grant, or it may arise by operation of law or necessity. It arises by operation of law or necessity where one sells a parcel of land which is surrounded wholly by the lands of the grantor or by his lands and the lands of others. In such case, the vendee has the right of way over the lands of the vendor to the public highway. The right to locate the way rests first in the vendor. If he fails to locate it within a reasonable time in a convenient manner, the right to locate it is in the vendee, and when once located it must be adhered to. The doctrine of dedication has no application to a private way, though that right may be established by uninterrupted user for twenty years. To make good a private way by prescription, the use must be definite as to manner and location. It must be under a claim adverse to the owner and not under license. It must continue for the whole period, that is, twenty years, without interruption.

§ 327. Temporary rights of way.-There is a temporary right of way over the adjoining land if a public highway becomes impassable, as by the falling of a tree, the washing away of a bridge or a part of the highway itself. But this is not so of a private right of way, the reason being that the owner of the way may be bound

to repair, and the condition of the private way may be owing to his neglect; but if a public highway becomes impassable, it is for the general good that the people should be entitled to pass in that direction.

§ 328. Easements.-An easement is 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. We have already spoken of rights of way, both public and private, which are both easements. To these may be added the right to water cattle at a spring or pond or stream on the land of another, the right to take and use such water for domestic purposes, the right of the owner of a building to discharge the water from his roof upon another's land, the right to swing doors, shutters, gates over another's land, the right to lay pipes to conduct water, gas, sewage, the right to put a partition fence or a party-wall partly on the land of an adjacent proprietor. A mere permission by one landowner to another to use his land for a given purpose is a license, and will not be an easement. An easement by prescription can only be perfected in the manner pointed out as to rights of way.

A party-wall is a wall built by agreement on the division lines of estates, which each proprietor has a right to use as a support to buildings. Each owner of land has an easement in the adjoining land for lateral support of his land in its natural state. This easement does not extend to any structures which increase the weight. In constructing a party-wall, the builder must erect it in a skillful manner, and if he does not do so he is liable for any damage that may result. Either party may repair the wall by underpinning, or increasing its height, but he must be careful that no damage is occasioned