cordingly, and forward them to the general land-office for approval."

The second clause of section 2488 of the Revised Statutes is substantially the same.

We are of opinion that the surveys and plats made as in this case, under the acts of 1863 and 1868, on the application of a party desiring to purchase the tract sought to be purchased, are not the segregation maps and surveys referred to in the act of Congress of July 23, 1866, and the section of the Revised Statutes above referred to.

Granting the survey and plat made on the application of Hartwell to purchase a specific tract of land (the northwest quarter in controversy) was a segregation map and survey such as is embraced within the abovequoted clause from the act of 1866, it does not appear that the commissioner gave any direction to the United States surveyor-general for this state, as required by the act, or that if such order was given it was complied with, or that any township plat was made under this order, or if made, that it was approved at the general landoffice.

Such being the case, we cannot hold that any title has vested in the state under the clauses just above referred to, of the act of 1866, and section 2488 of the Revised Statutes.

It would be going far to hold that the land in controversy was ever in any manner recognized by the land department at Washington as swamp and overflowed land, when it appears from the findings that in a controversy wherein the parties herein, including the state, were notified, and were heard, or had an opportunity to be heard, it was decided by the United States surveyor-general for California that the land in suit was not swamp and overflowed, which decision was afterwards affirmed by the Secretary of the Interior. This decision was made, as appears from the findings, upon a trial had by order

of the Secretary of the Interior, in which the question to be determined was whether or not the land in controversy was swamp and overflowed, and was ordered to be had under the last clause of section 4 of the act of July 23, 1866.

The foregoing disposes of all the material points discussed by the counsel for appellant."

There is no error, and the judgment is affirmed.

MCKEE, J., and SHARPSTEIN, J., concurred.

Hearing in Bank denied.

[No. 11243. Department Two. - September 22, 1886.] FREDERICK KRIPP, RESPONDENT, V. JAMES S. CURTIS, ET AL., APPELLANTS.

WAY OF NECESSITY

ID.

ID.

ID.

CONVEYANCE OF INCLOSED LAND DESIGNATION OF WAY. A conveyance of land which is entirely inclosed by other lands of the grantor carries with it, as appurtenant to the premises conveyed, a right of way of necessity over the adjoining lands of the grantor, subject to the limitation that the grantor may, in the first instance, designate the way to be pursued, and in the event of his failure so to do, the grantee may choose it for himself.

USER

GRANTOR MAY DESIGNATE WAY OF WAY BY GRANTEE NOTICE. In such a case, the grantor may designate a particular way in preference to one in use at the time of the conveyance; and the subsequent user by the grantee of the way as designated is sufficient notice of its existence to all persons claiming under the grantor.

DECLARATIONS

OF

ACTION TO ABATE OBSTRUCTIONS GRANTOR EVIDENCE. · - In an action by the grantee against a subsequent purchaser from his grantor of the adjoining land to restrain the latter from obstructing the right of way, the declarations of the grantor relating to the designation of the line of way are admissible.

WAY BY PRESCRIPTION. The continuous, uninterrupted, and exclusive user of a private way over the land of another for five years, under a claim of right and with the knowledge and acquiescence of the owner, is sufficient to create a right of way by prescription over such land.

APPEAL from a judgment of the Superior Court of Yolo County, and from a order refusing a new trial.

The facts are stated in the opinion.

McKune & George, for Appellants.

Grove L. Johnson, for Respondent.

SEARLS, C.- This is an action to recover damages for the obstruction of a private road, and to remove and abate such obstructions as a private nuisance.

Plaintiff had judgment abating the nuisance, and for damages in the sum of fifty dollars, from which, and from an order denying a new trial, the defendants appeal.

It is conceded that plaintiff has been the owner of the land described in his complaint since March 29, 1865, and that his title thereto came from one J. S. Curtis, who is also the grantor of defendants, by conveyances subsequently executed; that there was a public road running through the land of Curtis, about one half mile from the land of plaintiff and no public road to said plaintiff's land. or nearer thereto than said public road.

The disputed facts were: 1. As to the existence of the private road from the highway to the land of plaintiff, and if yes, had it existed as such since 1865? 2. Had plaintiff any other way to the public road than the private way? 3. Did plaintiff hold and use the private way adversely to defendants and their grantors?

The findings of the court were in favor of plaintiff upon all the issues joined in the cause.

The privilege which one person, or particular description of persons, may have of passing over the land of another in some particular line is termed a right of way.

It is an incorporeal hereditament (3 Kent's Com. 419; Washburn on Easements, 215; Boyce v. Brown, 7 Barb. 80), an easement which does not necessarily divest the owner of the fee of the land, and, for all other purposes except the servitude or use as a way, he owns it, and may have his action for an injury to his residuary inter

est as fully as he would be entitled to were it all his own. (Gidney v. Earl, 12 Wend. 98.)

A right of way may be public or private.

Public ways, as applied to ways by land, are usually termed "highways highways" or "public roads," and are such ways as every citizen has a right to use. (3 Kent's Com. 32.)

A private way relates to that class of easements in which a particular person, or particular description or class of persons, have an interest or right as distinguished from the general public.

Private ways in this country are frequently termed public roads, and are so designated in our statutes. The expression has been criticised as inapt and as tending to mislead (Sherman v. Buick, 32 Cal. 241); but it is nevertheless used to designate private ways.

A right of way may arise in this state: 1. By prescription, that is, by an adverse user for five years; 2. By grant; 3. From necessity; 4. By statute.

Whether what are known as private roads under the statute do or do not in all respects come under the denomination of private ways, is of no importance in this case, as no claim is made under the statute.

There are two counts in the complaint. The first sets out a right of way of necessity, and the second states facts sufficient to show a way by prescription.

It is a well-settled principle of law that the grant of a thing shall carry all things included, without which the thing granted cannot be had.

It follows from this just principle that if A sell an acre of land to B, which is surrounded by other lands owned by A, a convenient way arises on behalf of B to go over A's land as a necessary incident. (Woolrych on Ways, 20; 3 Kent's Com. 513; Holmes v. Seely, 19 Wend. 507.)

The rule is said to be the same, although the land sold be not wholly inclosed by the lands of the grantor, but partly by the land of strangers, for the reason that the

grantee may not go over strangers' land. (Clark v. Rugg, 2 Roll. Abr. 60; Smyles v. Hastings, 22 N. Y. 217.)

This way of necessity should be a convenient one over the adjoining land of the grantor, due regard being had to the interest of both parties, subject to this limitation: the grantor may, in the first instance, designate the way to be pursued, and in the event of his, failure so to do, the grantee may choose for himself. (Holmes v. Seely, supra.)

The right of way from necessity must be in fact what the term naturally imports, and cannot exist except in cases of strict necessity. It will not exist where a man can get to his property through his own land. That the way over his own land is too steep or too narrow, or that other and like difficulties exist, does not alter the case, and it is only where there is no way through his own land that a grantee can claim a right over that of his grantor. It must also appear that the grantee has no other way. (McDonald v. Lindall, 3 Rawle, 492; Dodd v. Burdell, 1 Hurl. & C. 122.)

A right of way thus acquired is said to be appendant or annexed to the estate, and will pass as appurtenant to the estate when sold. In this it differs from a right of way in gross, which is a mere personal right which cannot be assigned nor transmitted by descent, and which dies with the person. (3 Kent's Com. 420.)

A right of way from necessity only continues while the necessity exists. It is not enough that it continues to be a way of convenience, if it ceases to be indispensable as a means of access to the land. (Washburn on Easements, 220; Holmes v. Seely, supra; New York Life Ins. Co. v Milnor, 1 Barb. Ch. 353.)

In the last-mentioned case it was held that "it would not be enough, however, that one having such way of necessity should acquire a parcel of land adjoining that to which such way belongs, to which there is access by a prescriptive right of way, since the owner of such a way could only use

LXXI. CAL.-5