Way
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WAY, estates. A passage, street or road. A right of way is a privilege which
an individual or a particular description of persons, such as the
inhabitants of a particular place, or the owners or occupiers of such place
may have, of going over another person's ground.
2. It is an incorporeal hereditament of a real nature, a mere easement,
entirely different from public or private roads.
3. A right of way may arise, 1. By prescription and immemorial usage. 2
McCord, 447 5 Har. & John. 474; Co. Litt. 113, b; Br. Chem. 2; 1 Roll. Ab.
936. 2. By grant. 3 Lev. 305; 1 Ld. Raym. 75; 17 Mass. 416; Crabb on R. P.
Sec. 366. 3. By reservation 4. By custom. 5. By acts of the legislature. 6.
From necessity, when a man's ground is enclosed and completely blocked up,
so that he cannot, without passing over his neighbor's land, reach the
public road. For example, should A grant a piece of land to B, surrounded by
land belonging to A; a right of way over A's land passes of necessity to B,
otherwise he could not derive any benefit from the acquisition. Vide 3
Rawle, 495; 2 Fairf. R. 1,56; 2 Mass. 203; 2 McCord, 448; 3 McCord, 139; 2
Pick. 577; 14 Mass. 56; 2 Hill, S. C. R. 641; and Necessity. The way is to
be taken where it will be least injurious to the owner. 4 Kent, Com. 338. 4.
Lord Coke, adopting the civil law, says there are three kinds of ways. 1. A
foot-way, called iter. 2. A foot-way and horse-way, called adus. 3. A cart-
way, which contains the other two, called via. Co. Lit. 56, a; Pothier,
Pandectae, lib. 8, t. 3, Sec. 1; Dig. 8, 3; 1 Bro. Civ. Law, 177. Vide Yelv.
142, n; Id. 164; Woodf. Landl. & Ten. 544; 4 Kent, Com. 337; Ayl. Pand. 307;
Cruise's Dig. tit. 24; 1 Taunt. R. 279; R. & M. 151; 1 Bail. R. 58; 2 Hill.
Abr. c. 6; Crabb on Real Prop. Sec. 360 to 397; Bouv. Inst. Index, h.t.;
Easement; Servitude.