PREFACE TO THE THIRD EDITION.

THE occasion for issuing a new edition of this work may be found in the growing interest and importance of the subjects of which it treats, and the fact that, already, there have been nearly, if not quite, six hundred cases decided and reported since the publication of the former edition, of which mention or reference will be found in the present volume. By means of these, many of the topics upon which the authorities were formerly doubtful or conflicting have become settled, while new points have arisen, and new questions have been discussed in connection with the progress which the law of Easements and Servitudes has, in the mean time, been constantly making. It seemed, therefore, due to the profession that a work assuming to treat of this branch of the law should embody, as far as could reasonably be done, the decisions to which these questions had given rise, as a ready mode of ascertaining its present state and condition.

An additional reason for this is the intrinsic importance of many of the subjects which have, in this time, come under the consideration of the courts. It will be enough to mention a few of these. Without attempting to give them in their order, there will be found among them: the question how far a lower field owes a servitude to an upper one to receive the surface-water which collects, at certain periods, upon the latter, and what are the rights of the public as to this, so far as it affects the use of railroads and highways; whether one by digging in his own land may draw away, by underground percolation, the waters of a spring in the land of an adjacent owner, which forms the natural source of a defined watercourse, so as to destroy the same; what are the respective rights of the public and riparian proprietors in respect to streams which are not navigable by the common law, but have been declared such by the legislature; what rights have millowners upon streams to raise and maintain reservoirs therein, and

regulate the use and flow of water thereby, in reference to their mills; to what extent easements are created or reserved, by implication, where one of two parcels of land is granted, or a part of an entire estate is conveyed by the owner; in what consists a dedication of lands to public uses, and what are the respective rights of the owners and the public in regard to the same; the effect upon the rights of land-owners whose lands have been taken for public highways and the like, if the same are appropriated to other and different uses; and to what extent owners of common or adjacent lands may subject the same to mutual easements and servitudes in the use and occupation thereof, by oral or other agreements with each other in respect to such use. In carrying out this scheme, it became necessary to increase the text of the work by what, in its original form, would have occupied at least a hundred pages; but by adopting one of a somewhat larger size, the publishers have added but about thirty folios to the size of the volume.

These are some of the subjects upon which the decisions of the courts have supplied the means of giving to the present work a more thorough completeness than could have been expected at the time of the publication of either of the former editions. And it is hoped that an earnest endeavor to use these in such a manner as to convey a correct idea of the present state of the law will be found so far successful as to commend the work, in its present form, to the same favor with which it has heretofore been received.

CAMBRIDGE, October, 1873.

PREFACE TO THE SECOND EDITION.

THE manner in which the first edition of this work has been received, is a gratifying evidence not only of a want in the profession to be supplied, but that the attempt to meet it has been reasonably successful. It has encouraged the author to a renewed effort to render the work still more satisfactory and complete. In the present edition he has incorporated about a hundred pages into the text of the work, and has endeavored to collect for reference every case to which he had access, which had been decided, upon the subjects of which it treats, before the volume went to press. The subjects upon which the text has been chiefly enlarged, have been the doctrine of Easements created by implication, upon the division of heritages, and the interesting, modern doctrine of mutual easements and servitudes between parts of a once common estate, growing out of their relation to each other in the orderly arrangement of buildings, &c., upon streets, squares, and open areas in cities and villages. Other subjects also have been more fully developed, and in a few instances the text has been changed to conform to the changed condition of the law.

A reference to the numerous cases which have been decided by the courts since the publication of the former edition, would serve to indicate the growing interest and importance of the subjects of which it treats. Indeed, it could hardly be otherwise, in view of the growing wants of a busy, thriving community, who are constantly building up towns and villages, and calling into exercise the privileges and conveniences which a successful prosecution of industry and the arts demands. While the law is continually making progress in this direction, it is rather by the application by courts of known and familiar principles to new cases as they arise, than by any action of the law-making power in the State. It is for this reason, that a somewhat liberal reference has been made,

in this as in the former edition, to elementary treatises of foreign jurists.

The author would be doing injustice to his own feelings if he failed to acknowledge a grateful sense of the expressions of favor with which his attempt to supply an American work upon the Law of Easements and Servitudes, has been received. And he can only add the hope that the present volume may be found equally acceptable, at least, with that whose place it has been prepared to supply.

CAMBRIDGE, June, 1867.