consented to J. Dudley. From Records of the governor and council, VII., 291, in 1 Prov. Laws, 363." The Act in question was the Act of 1698, chap. 2. Very plainly schoolhouses were not saved by the proviso, but they were read in by the foregoing resolve. If the present case had been presented we think the answer would have been more unhesitating still. Petition dismissed. OREGON SUPREME COURT. George W. HAHN, Respt., v. defendant from interfering with complainant's property, and to recover damages for such BAKER LODGE, No. 47, A. F. & A. M., interference. Affirmed, except as to so much of Appt. (.... Or.....) *1. Grants of rooms or apartments in a building, like leases of the same, must be construed according to the intention of the parties, and with reference to the subject matter upon which they operate. 2. Where the language of the grant does not purport to convey an estate or interest in the land or building, or any portion of it, but only a certain room located in such building, namely, "the middle room or hall of the upper story," carefully distinguishing by its provisions the room granted from other rooms, and contains no stipulation as to rebuilding in case of fire or other casualty, and such building is destroyed by fire, and the identity and existence of the room as such were extinguished, there was nothing remaining upon which the conveyance could operate, and the rights of the defendant terminated. 3. If an easement for a particular purpose is granted, when the purpose no longer exists there is an end of the easement. (June 24, 1891.) APPEAL by defendant from a decree of the Court for Baker County in favor of complainant in a suit brought to enjoin *Head notes by LORD, J. NOTE.-Conveyance, sale of part of building conveys a mere easement. When a building is so constructed that one part of it is made tributary to the other, on a sale of that part of it which is tributary the natural presumption will be, in the absence of an express agreement to the contrary, that the purchaser takes the part he buys subject to such use by the other part as the mechanical arrangement of the building imposes. Mayo v. Newhoff, 13 N. J. L. J. 179. the decree as awarded damages. The facts are stated in the opinion. Messrs. Williams & Wood, for respondent: The conveyance by deed or demise of an upper story in a building vests in the grantee no interest in the soil, and with the destruction of the premises his estate terminates. Harrington v. Watson, 11 Or. 145; Stockwell v. Hunter, 52 Mass. 448-455; Graves v. Berdan, 26 N. Y. 499; Winton v. Cornish, 5 Ohio, 478; Shawmut Nat. Bank v. Boston, 118 Mass. 127-131; Ainsworth v. Ritt, 38 Cal. 90; Kerr V. Merchants Exch. Co. 3 Edw. Ch. 315, 6 L. ed. 672; Thorne v. Wilson, 9 West. Rep. 45, 110 Ind. 325. When the estate is destroyed to which an easement is appurtenant the easement is extinguished. Gayetty v. Bethune, 14 Mass. 49; Ballard v. Butler, 30 Me. 94; Mussey v. Union Wharf Proprs. 41 Me. 34; Hancock v. Wentworth, 46 Mass. 446; National G. M. W. Co. v. Donald, 4 Hurlst. & N. 8, 16; Allen v. Gomme, 11 Ad. & El. 759; Henning v. Burnet, 8 Exch. 187; Wash., Easem, & Serv. 3d ed. pp. 654–657 3 Toullier, Droit Civil, 522. tinguished if the wall be destroyed without A mutual easement, as a party-wall, is exany act of either party, as by fire. Grants of apartments in a building must be construed according to the intention of the parties and with reference to the subject matters, which are rooms or apartments, specifically designated by numbers or otherwise. Kerr v. Merchants Exch. Co. 3 Edw. Ch. 15, 6 L. ed. 672, followed in Austin v. Field, 7 Abb. N. S. 34, 1 Sheld. 213; Hilliard v. New York & C. G. C. Co. 41 Ohio St. 666. A cellar, room, etc., may pass by their own terms and nothing more, and where land is not mentioned no land passes. Doe v. Burt, 1 T. R. 701; Penruddock's Case, 5 Coke, 100. The owner of land can convey it, or the profits of it, in such parcels as he thinks proper; he can grant the right to occupy a room in the third story, to occupy a second story, a room in the first story, or the cellar or part of the cellar; but by such grants the land does not pass, although the land is necessary to sustain those parts of the house. Winton v. Cornish, 5 Ohio, 477: Kerr v. Merchants Exch. Co. 3 Edw. Ch. 315, 6 L. ed. 672; Rowan v. Kelsey, 4 Abb. App. Dec. 127, 2 Keyes, 597. Where the owner of two stores containing but one flight of stairs sold the store in which there were no stairs, and described it by metes and bounds, the conveyance did not carry with it the right of way of necessity over the flight of stairs. Stillwell v. Foster, 6 New Eng. Rep. 649, 80 Me. 333. When the owner of an entire estate makes one part of it visibly dependent for the means of access upon another, and creates a way for its benefit over the other, and then grants the dependent part, the other part becomes subservient thereto, and the An annexation to the freehold, impossible of way constitutes an easement appurtenant to the separation from the building erected thereon,-as estate granted, and passes to the grantee as acces- a second story erected upon the building,-must be sorial to the beneficial use and enjoyment of the regarded as the right to a mere use, and not of an granted premises. National Exch. Bank v. Cun-interest in the land; and upon such a grant the ningham, 46 Ohio St. 575. mere proprietary interest in the real estate cannot Sherred v. Cisco, 4 Sandf. 480; Gilbert, 15 N. Y. 601; Heartt v. R. A. 135, 121 N. Y. 386. Partridge v. Lord, J., delivered the opinion of the court: | duction from the evidence, considered as a whole, leaves no doubt that the middle room in the upper story, owned by the defendant, was wholly destroyed, and that the building itself was substantially destroyed. Upon this state of facts, the inquiry is, Had the This is a suit in equity, brought by the defendant the right which it undertook to plaintiff to restrain the defendant from in- exercise, and which this suit is brought to terfering with certain alleged rights in cer- enjoin, of rebuilding the walls for the purtain premises claimed by the plaintiff. The pose of reconstructing an upper story, and facts out of which the question presented for recreating a middle room, to be used as a our consideration arose are substantially lodge hall in the place of the one destroyed these The plaintiff was the owner of a by the fire? By its conveyance the defendant certain lot in Baker City, upon which was had granted to it what was known and styled erected a two-story building, the middle room as the middle room of the upper story of the or hall in the upper story of which was building, and an easement of ingress and owned by the defendant, and used as a lodge egress. There is no provision in it, or right hall, and, as appurtenant thereto, it owned given to the defendant, in case of the destrucan easement as a means of ingress and egress. tion of the upper story by fire, or of the The room owned by the defendant, being a building, itself to rebuild it. It does not, middle room, had front and rear walls and in terms, grant or convey the land, and does two lateral walls. A fire occurring, the not purport to grant or convey the building, whole building was substantially destroyed. but only the middle room or hall in the The roof, floors, joists, windows and doors upper story, and without any stipulation as were totally consumed by the flames; and at to rebuilding in case of fire. It seems to the same time the rear and front walls were us that conveyances of this kind, like leases entirely destroyed to their foundation, and of apartments in buildings, must be construed only a portion of the lateral walls remained, according to the intention of the parties, and which were fire-cracked, shaky, and unfit for with reference to the subject matter upon use. So far as relates to the second story, which they operate. As applied to a lease, only a portion of the lateral walls were left the doctrine of the law is, when it is not above the second story, and as they stood the intention to grant any interest in the they were unsafe, and practically useless for land further than is necessary for the enjoyrebuilding purposes. The other walls were ment of the room leased, that when such destroyed, so that the middle room in the room is destroyed there is nothing upon second story, used as a hall by the defend- which the demise can operate, and that the ants, and its foundations, were practically lease terminates with the destruction of destroyed by the conflagration, and its iden- the thing leased. Harrington v. Watson, 11 tity lost or extinguished. While there is Or. 143. The application of this doctrine some conflict in the evidence, there is none is well illustrated in the case of Stockwell v. upon which to base the contention that there Hunter, 11 Met. 448, in which this question was any sufficient portion of the lateral walls was carefully considered. In that case the remaining to preserve the identity of the lessor of a three-story building leased the middle room, or that such portions as re- cellar or basement to a tenant for five years, mained were sufficiently safe for rebuilding and the other stories to other tenants; but the purposes as they stood. The practical de-lease contained no stipulation as to rebuild be recovered. Thorne v. Wilson, 9 West. Rep. 45, occupation, and a destruction of the building ends 110 Ind. 325: 2 Washb. Real Prop. 25. The right which one proprietor has to some profit, benefit or lawful use out of or over the estate of another proprietor, is merely an easement. Ritger v. Parker, 8 Cush. 145. So the grant of a right to have and to hold a second story to a building for the use of a lodge is an easement. 2 Washb, Real Prop. 25. No estate can be created of mere space of air above ground; and though property in a room may be conveyed (Brooke, Abr. Demand, 20; Year Book 5 Hen. VIII., p. 9); yet, if the foundation fail, the property goes; it ceases with the thing itself. Jackson v. Buel, 9 Johns. 298; Jackson v. May, 16 Johns. 184. that right. Kerr v. Merchants Exch. Co. 3 Edw. A destruction of the house in the absence of covenants to repair terminates the tenancy. Ainsworth v. Ritt, 38 Cal. 90; Chamberlain v. Godfrey, 50 Ala. 534; McMillan v. Solomon, 42 Ala. 356; Rowan v. Kelsey, 18 Barb. 490. If the building is destroyed, no right of possession in any part of the lot remains in any of the former occupants. Pearce v. Colden, 8 Barb. 527. At the expiration of a lease of land, an action of ejectment for the lot alone, by metes and bounds, lies against parties occupying separately the dif So if a church is burned, the right to a pew ferent stories of the building, as joint trespassers therein is gone. Freligh v. Platt, 5 Cow. 494. A distinction is made between the lease of a house and the lease of an apartment therein. In the former case the lease carries with it the land whereon the house stands; in the latter case it does not. Thus, where a cellar was leased, and the building was destroyed by fire, it was held that the lessee had no right to roof in the space he had formerly occupied. Winton v. Cornish, 5 Ohio, 477. The interest of the occupier of a room in a building is peculiar; he has simply the right of on the land, in using it to uphold the building, and plaintiff is not bound to elect against which one he will proceed. Pearce v. Ferris, 10 N. Y. 285. Extinguishment of easement. An easement is one of the rights of property which may be extinguished or destroyed. See Hancock v. Wentworth, 5 Met. 446; 1 Rolle, Abr. 934; 2 Fournel, Traité de Voisinage, 405; 3 Toullier, Droit Civil, 522; Washb. Easem. 701. ing in case of fire, and it was held that the destruction of the building terminated the lessee's rights in the premises. It was put upon the ground that such lease of distinct rooms or apartments do not carry any interest in the land beyond that connected with the enjoyment of the particular room; that the room was the thing leased; and that the destruction of the thing leased necessarily terminated the lessee's interest therein. The real question in all such cases, as it must be in the case at bar, is whether the intention of the parties, collected from the whole instrument, was to grant any estate in the land. The language in the conveyance precludes the idea that it was the intention to grant the building, or any portion of it, but only a certain room located in that building ("the middle room or hall of the upper story"), which is the principal thing granted, and which is identified by description to distinguish it from other rooms. As the conveyance does not purport, in terms, to grant any estate or interest in the land, and as the provisions of the conveyance carefully distinguish the room granted from other rooms of the building, and as it contains no stipulation to rebuild in case of fire or other casualty, there is nothing to be taken by implication to justify us in holding that any grant of an estate in the land was intended. It is not doubted that there may be a freehold interest in a part of a building. 1 Washb. Real Prop. 18. Nor do we wish to be understood as holding that the sale of an interest in a building may not be a sale of an estate or interest in the subjacent soil. What we are trying to indicate is that, by the terms of the interest, it is the middle room or hall of the upper story which was granted to the defendant, and not a part of the building; that the defendant did not acquire any right of ownership in the building, or any part of it, but in the room or space inclosed by that part of the building which was described and identified as the middle room or hall of the upper story. This it owned; and so long as it existed, and its identity was preserved, the defendant had the right to its enjoyment. But when the fire destroyed the building, and the identity of the room and its existence as such were extinguished and at an end, there was nothing remaining upon which the defendant's conveyance could operate, and its rights at once terminated. In Thorne v. Wilson, 110 Ind. 13 L. R. A. 66 325, 9 West. Rep. 45, where a committee on behalf of the order of freemasons had granted the right to construct a second story upon a building erected by the owner of the land, "to have and own said second story for their use perpetually," it was held that they did not acquire any proprietary interest in the freehold of which such second story became a part. In construing the instrument, the court says: "It is evident that the instrument relied on by the appellant does not convey an interest in the land;" and then adds: For it is quite clear that, if the buildings should be totally destroyed, the rights of the appellants, and of their grantors as well, would at once terminate." As the instrument grants the defendant no estate in the land, and contains no stipulation of the right to rebuild in case of destruction by fire or other casualty, it would seem to be plain that it was the intention of the parties, collected from their agreement and its subject matter, that the agreement, and the relation created by it, should terminate with the destruction of the building. The remaining question is whether the easement for the purpose of ingress and egress was extinguished by the destruction of the building. The facts show that such easement was granted for the particular purpose of affording ingress and egress to the building. Without it the principal thing (the room granted) would be practically useless. It was essential and necessary for the enjoyment of the room, and was granted on account of it. Nor is it of any use, within the purposes of the grant, without the existence of the room. In such case, the general rule, as stated by Mr. Washburn, is that, "if an easement for a particular purpose is granted, when that purpose no longer exists there is an end of the easement. "" Washb. Easem. pp. 654, 657. When the reason and necessity for the easement ceased, within the intent for which it was granted, as it did when the building was destroyed by fire, it would logically result there was an end of the easement. For these reasons we think there was no error upon the legal questions presented by this record, but that the damages awarded are not justified by the facts under the circumstances, and that the decree awarding them must be disallowed, but in all other things affirmed, and so it is ordered. CONNECTICUT SUPREME COURT OF ERRORS. John D. YALE v. WEST MIDDLE SCHOOL DISTRICT. (59 Conn. 489.) A child living with a domiciled resident and taxpayer of a school district as a member of his family, with the expectation on the part of all parties interested that this relation will continue permanently, although she has never been formally adopted and may not have a domicil in the technical sense of that term in the district, has a "residence" in that district for school purposes and cannot be compelled to pay tuition as a non-resident. (November 19, 1890.) PPEAL by defendant from a judgment of for restraining it from interfering with the attend The facts are stated in the opinion. It is the undoubted right of a father or guardian to fix the residence of a minor at some place other than his own residence or domicil. A guardian has the same power over his ward that a parent has over his child. He has the custody of his person, and may appoint the place of his residence. Holyoke v. Haskins, 5 Pick. 26. See also Kirkland v. Whately, 4 Allen, 462. Residence for school purposes differs entirely from that fixed and permanent residence necessary to gain a settlement. Milton School Dist. No. 1 v. Bragdon, 23 N. H. 507; Brentwood School Dist. No. 2 v. Pollard, 55 N. H. 503; State v. Thayer, 74 Wis. 48. In determining questions of residence and domicil and changes therein, the intention of the parties concerned is the all-important consideration. Clinton v. Westbrook, 38 Conn. 12. Andrews, Ch. J., delivered the opinion of the court: The plaintiff is, and has been since May, 1887, a domiciled resident and taxpayer in the defendant School District. Ada Austin, that time living with him as a member of a child of thirteen years, has been during all trict. The defendant presented to the plainhis family. She attended school in said Distiff a bill for her tuition, and threatened to exclude her from attending the school unless such bill was paid. The plaintiff thereupon preferred the present complaint to the supejoined from interfering in any manner with the attendance of the said Ada Austin at the school. The superior court granted the injunction, and the defendant has appealed to this court. The defendant insists that it has the right to require tuition to be paid for the schooling of the said Ada, for the reason that she did not so reside in or belong to the School District that she could be enumerated as a person within school age residing therein. This claim implies-what was directly admitted by the counsel for the defendant-that if she might lawfully be enumerated in the District then she was entitled to attend school there without paying tuition. The said Ada is a niece of the plaintiff's wife. She was born in the State of Illinois, where her parents then resided. Her parents now reside in Missouri, and have never resided in this State. The plaintiff and his wife have no NOTE.-Common-school privileges are regulated by or ordinary dwelling-place or place of residence of statute. The right to be educated in the common schools of the State is one derived entirely from legislation, and as such is subject to such limitations as the Legislature may, from time to time, see fit to make. It is not a constitutional right. Dallas v. Fosdick, 40 How. Pr. 249. An inhabitant cannot claim for his children the absolute right to select such a school for them as he pleases, in disregard of the regulations of the board of public instruction. People v. Easton, 13 Abb. Pr. 159. The board of public instruction have the power, in their discretion, to adopt regulations for the admission of pupils, by which the assignment of children between schools affording equal advantages shall be determined; but if they should unlawfully exclude a child from a school, the remedy would be by action. Ibid. Domicil, how determined. The domicil is the habitation fixed in any place with an intention of always staying there, while simple residence is much more temporary in its character. New York v. Genet, 4 Hun, 487. a person, as distinguished from his temporary and transient, though actual, place of residence. It is his legal residence, as distinguished from his temporary place of abode; or his home, as distinguished from a place to which business or pleasure may temporarily call him. Salem v. Lyme, 29 Conn. 74; Black, Law Dict. title, Domicil. Every person must have a domicil somewhere; and he can only have one domicil at one and the same time. Every person has a domicil of origin, which he retains until he acquires another; and the one thus acquired is in like manner retained until he acquires a third domicil. The existing domicil always continues until another is acquired. So by the acquisition of another, the former domicil is relinquished. Abington v. North Bridgewater, $3 Pick. 170; Thorndike v. Boston, 1 Met. 242; Kilburn v. Bennett, 3 Met. 199. The domicil of origin arises from birth or connections. The domicil of a minor follows that of his father, and remains until he acquires another, which he cannot do until he becomes an adult. Andrews v. Herriot, 4 Cow. 516, note 2. A domicil is defined to be the place where a person has fixed his habitation, without any present intention of removing therefrom. Putnam v. Johnson, 10 Mass. 488; 1 Bouvier, Law Dict. 480. It is defined by Webster to be a place of permaDomicil is but the established, fixed, permanent nent residence either of an individual or a family. A minor may have, for school purpose, a residence other than that of his parents. State v. Thayer, 74 Wis. 48. children. In 1882 the child, then being six | exercise an independent intent in this matter, years old, came to live with the plaintiff, a minor can have no domicil other than that who then resided in Winchester in this State, of the parent or guardian. But the facts do upon an arrangement between the plaintiff show that she had a residence there in the and his wife on the one hand and the parents ordinary and popular meaning of the word. of the child on the other, that she should live She is and has been for some time actually with the plaintiff and his wife so long as there. Her own intent is to remain there they should live, unless she should sooner by permanently. The intent of her parents and marriage or otherwise make a home for her- of Mr. and Mrs. Yale is that she shall remain self. Pursuant to that arrangement she has there permanently; so that the will of all the ever since resided with the plaintiff, and he persons who have any authority to control has had the entire actual control over her, the intent of this minor concurs with her own caring for her in all respects as though she in this respect. All the elements necessary was his own child. In May, 1887, the plain- to constitute residence are present. The house tiff removed from Winchester to Hartford, of the plaintiff is her home. She did not purchased a lot within the school district, come into the District for the purpose of built a house thereon, and has since that obtaining instruction in its schools. She time resided there with his family, which came there because her home was with the consists only of himself, his wife, and the plaintiff and he removed to Hartford from said Ada; and he has no intention of chang- Winchester; and because her home is with ing such residence. It is the expectation and the plaintiff she expects to remain in Hartthe intent of the said Ada, and of her par- ford permanently. We think this is residence ents, and of the plaintiff and his wife, that sufficient for school purposes, and that Ada she shall continue to live with the plaintiff Austin belongs to the West Middle School and his wife as their own child so long as District and ought to be enumerated there. they shall live. The plaintiff and his wife have never formally adopted her according to the Statute regulating the adoption of children. A construction so narrow and technical as is claimed by the defendant would seriously impair the usefulness of the School Laws and would defeat various provisions of the Statute. The State is interested to bave all the children educated in order that they may become good citizens. Experience has demon It is the claim of the defendant that no child can be properly eunmerated in any school district as belonging thereto, so as to be entitled to instruction in its schools with-strated that it costs the public much more out tuition, unless such child has a legal to support one ignorant or vicious person residence in the sense of domicil therein, or than to educate many children. On the is an apprentice to a master residing there, simple ground of economy the State cannot or is a pauper and so a ward of the public. afford to permit any child to grow up withIt is not pretended that the child Ada is an out being sent to school. The School Laws apprentice and she certainly is not a pauper. recognize this fact and their provisions are It is quite possible that the facts in this framed accordingly. If any child is actually case do not show that the minor child in dwelling in any school district, so that some question had a domicil in the defendant Dis-person there has the care of it, and is within trict in the technical meaning of that term. the school age, not incapable by reason of Domicil in that sense is the actual or con- | physical infirmity of attending school, and structive presence of a person in a given is not instructed elsewhere, then that child place, coupled with the intention to remain must go to the public school. Section 18 of there permanently; and as a minor cannot the General Statutes provides that "public Chancellor Kent says, the place where a man car- 7 Mass. 5; Lincoln v. Hapgod, 11 Mass. 352; Harries on his established business, or professional oc- vard College v. Gore, 5 Pick. 370; Sears v. Boston, cupation, and has a home and permanent resi- 1 Met. 250; Cadwalader v. Howell, 18 N. J. L. 138; dence, is his domicil. 2 Kent, Com. 2d ed. 431, | Wilton v. Falmouth, 15 Me. 479; Thorndike v. Bosnote e. Domicil is defined to be "a residence at a particular place, accompanied with positive or presumptive proof of continuing it an unlimited time." A person being at a place is prima facie evidence that he is domiciled there; but it may be explained and the presumption rebutted. Wrigley, 8 Wend. 142; 2 Kent, Com. 431, note e; Marsh v. Hutchinson, 2 Bos. & P. 229, note, per Lord Thurlow. ton, 1 Met. 242. To constitute domicil there must be actual residence and personal presence in a place, and an intention of making it the home of the party. Thorndike v. Boston, 1 Met. 245; Sears v. Boston, 1 Met. 251; Wayne v. Greene, 21 Me. 357; Leach v. PillsRebury, 15 N. H. 137; State v. Daniels, 44 N. H. 383; Boardman v. House, 18 Wend. 512; Hegeman v. Fox, 31 Barb. 475; Henrietta Twp. v. Oxford Twp. 2 Ohio St. 32; McClerry v. Matson, 2 Ind. 79; McKowen v. McGuire, 15 La. Ann. 637; Horne v. Horne, 9 Ired. L. 99; Foster v. Hall, 4 Humph. 346; McIntyre v. Chappell, 4 Tex. 187. To effect a change of domicil there must be intention and act united. The forum originis or domicil of nativity, remains until a subsequent domicil is acquired animo et facto. 2 Kent, Com. 431, note e. If a party removes from his domicil, with an intention of returning, he does not lose his domicil; as he can have acquired one nowhere else. 1 Bouvier, Law Dict. 490. But residence and domicil are not interchangeable terms, as a man may reside in one place and bave his domicil in another. North Yarmouth v. West Gardiner, 58 Me. 207; Hampden v. Levant, 59 Me. 557; Alston v. Newcomer, 42 Miss. 186; Briggs v. Rochester, 16 Gray, 337; Bell v. Pierce, 51 N. Y. 12; Tazewell County Suprs. v. Davenport, 40 Ill. 197; Hallett v. Bassett, 100 Mass. 170; Fleld, Lawyer's Briefs, 506. See note to Warren v. Board of Regis So if a person leaves the place of his domicil temporarily, or for a particular purpose, and does not take up a permanent residence elsewhere, he does not change his domicil. Granby v. Amherst,tration (Mich.) 2 L. R. A. 203. |