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Bland's Reports, Chancery Court 1809-1832
Volume 201, Volume 3, Page 67   View pdf image (33K)
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across the towing path of the Canal, but deny that the use of it
has ever been at all obstructed even while they were making those
cuts; and state, that they have erected locks and built good
bridges over them, which are safely and readily passable for men
and horses, though not for carriages, which could not before pass
along that portion of the towing path, across which the cuts have
been made; they state that those cuts by giving access from the
Canal into a large pond, to vessels and rafts, afforded them addi-
tional facilities and security in navigating the Canal; and thus
materially improved the utility of that highway; and therefore they
aver, that they were well justified in doing what they have done.
29th November, 1830.—BLAND, Chancellor.—The matter of the
attachment for a breach of the injunction standing ready for hear-
ing, and the solicitors of the parties having been fully heard, the
proceedings were read and considered.
The only question is, whether the defendants have, by these
their admitted acts, deprived the plaintiff, in any degree, of that
usufruct which it was the purpose of the injunction to preserve to
him. A right of way, whether public or private, is essentially dif-
ferent from a fee simple right to the land itself over which the way
passes. A right of way is nothing more than a special and limited
right of use; and every other right or benefit derivable from the
land, not essentially injurious to, or incompatible with the peculiar
use called the right of way, belongs as absolutely and entirely to
the holder of the fee simple as if no such right of way existed.
He is, in fact, for every purpose considered as the absolute owner
of the land, subject only to an easement or servitude; he may re-
cover the land so charged by ejectment; he may bring an action
of trespass against any one who does any injury to it, not properly
incident to an exercise of the right of way; he has a right to the
trees growing upon it; to all minerals under its surface; he may
carry water in pipes under it; and the freehold with all its profits,
not inconsistent with the right of way, belong to him. (h)
Here the plaintiff himself has shewn, that these defendants are
the owners of the freehold and its profits subject to the servitude
of this Canal or highway; and also, that they are entitled to the
profits of that Canal or highway so passing through their land;
and over which land, as he avers, they have granted a right of
way to him. But the right of way as claimed by the plaintiff is
(h) Com, Dig. tit Chimin, (A. 1.)

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Bland's Reports, Chancery Court 1809-1832
Volume 201, Volume 3, Page 67   View pdf image (33K)
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