ARGUMENT OF MR. ROOT 231 



of reasoning. I do not think we need trouble ourselves where this 

 iter or via goes. 



Sir Charles Fitzpatrick: Except that the iter and viator 

 must go where the grantor stipulates — with all due deference. 



Senator Root: They must go to a point, if a point is prescribed. 

 They must go where the grantor stipulates, if the grantor settles 

 it in the grant. They must go where the contract provides, if 

 the contractor settles it in the contract. 



Sir Charles Fitzpatrick: Yes. 



Senator Root: If he does not say anything about it, then they 

 must go where the person who is to do the going settles it in the 

 exercise of his discretion. 



Sir Charles Fitzpatrick: And it is not to be settled by the 

 person who is to suffer the burden? 



Senator Root: No. You cannot drive your ox- team along 

 the via through a man's house; you must not make the burden 

 unnecessarily grievous, but the discretion is in the person who does 

 the thing unless there is a Hmit put in the contract. 



The President: In that respect is there an analogy between the 

 position of the private proprietor and the sovereign of a state in 

 dealing with such a real right? The private proprietor cannot 

 decide the question how the entitled may use his right because 

 he consults only his personal interest, whereas the sovereign of a 

 state has to consider not only his personal interest, but the interest 

 of a large community. Is the position, therefore, of the private 

 proprietor, in that respect, strictly analogous with the position of 

 the sovereign of the state ? 



Senator Root: The private proprietor may have a large family. 



The President: Of course, but he has only enlarged individual 

 interests. 



Senator Root: The sovereign of the state is the community, 

 and the interests of this particular kind of grant are diverse interests, 

 as I pointed out yesterday. There is no such common interest 



