THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW is the Property f the UNTY LAW LIBRARY If found elsewhere than in Law Library, please return, or notify Librarian. Books belonging to this Library are never sold, exchanged or given away. CHICAGO STAI BINDERY 224 S. Sprinj: %l.. L Tel. Mutual 443 LAW L, ^''^^S COUNTY LOS *'»A/?v Of I.. ^- ^^' r TREATI&E LAW OF EASEMENTS, C. J. GALE, ESa. Ill ' AND T. D. WHATLEY, ESQ. BARRISTERS AT LAW. WITH AMERICAJV JYOTES, BY E. HAMMOND, . COUNSELLOR AT LAW. NEW YORK : HALSTED AND VOORHIES, LAW PUBLISHERS, CORNER OF NASSAU AND CEDAR STREETS. 1840. Entered according to Act of Congress, in the year Eighteen Hundred and Forty, by Halsted & Voorhies, in the Office of the Clerk of the Southern District of New York. NORTHAMPTON, MASS. J. C. KNEELAND, PRINTER. THE RI&HT HONORABLE THOMAS, LORD DENMAN, LORD CHIEF JUSTICE OF ENGLAND, THIS WORK, (with his lordship's permission). RESPECTFULLT DEDICATED, THE AUTHORS. r>'00'^^<^^^^ PREFACE. The want of a treatise upon those important rights know^Tn the Law of England by the name of " Easements" has, it is be- lieved, been sensibly felt by the Profession. The length of time which has elapsed without any attempt hav- ing been made to supply this want affords a sufficient reason for the appearance of the present Essay. The difficulties which arise from the abstruseness and refinements incident to the subject, have been increased by the comparatively small number of decided Cases af- fording matter for defining and systematizing this branch of the law. Upon some points, indeed, there is no authority at all in the Eng- lish Law ; — of the decisions, some depend upon the circumstances of the particular case, and some are irreconcilable with each other. Water-courses are the only class of Easements with regard to which the law has been settled with any degree of precision. A desire to remedy an admitted defect led to passing of the Pre- scription Act — a statute, which has not only failed in effecting its particular object, but has introduced greater doubt and confusion than existed before its enactment. In fact, had it not been held, that the statute did not repeal the Common Law, many rights which have been enjoyed immemorially would have been put an end to by circumstances which never could have been intended to have that effect. As in many other branches of the law of England, the earlier authorities upon tlie law of Easements appears to be based upon the Civil Law, modified, in some degree, probably, by a recognition of customs which existed among our Norman ancestors. The most remarkable instance of an adoption by the English Law from- vi PREFACE. this source is tlie doctrine known in the French law by the title of « Destination du perc de famille." In the majority of cases, both ancient and modern, probably from a consideration of this being the origin of the law, recourse has been had for assistance to the Civil Law. It has, therefore, been considered that the utility of the work would be increased by the introduction of many of the provisions of that refined and elaborate system with respect to Prsedial Servitudes, and the doctrine of Pre- scription ; as well as some of the observations of Pardessus — an eminent French writer on Servitudes. ^nith the same view the authority of decisions in the American Courts has been called in aid upon the subject of water-courses — questions which the value of water as a moving power,, and the frequent absence of ancient appropriation have often given rise to in the United States. In those judgments the law is considered with much care and research, and the rights of the parties settled with precision. The result of the authorities is stated by Chan- cellor Kent, in his well-known Commentaries, with his usual ability. Upon many points, particularly upon the construction of the Prescription Act, the observations contained in the following pages are, in some degree, unsupported by direct authority. It has, however, been thought belter to endeavor to open the law upon the doubts which presented themselves than to pass them over in silence. Temple^ July, 1839. CONTENTS, Introduction Page 1 PART I. ACQUISITION OF EASEMENTS. CHAPTER I. ESSENTIAL QUALITIES. Sect. 1. Easements are incorporeal 3 2. They are imposed upon corporeal property . . 4 3. They confer no right to a participation in the pro- fits of the servient tenement 4 4. They must be imposed for the benefit of corpo- real property 5 5. There must be two distinct tenements — the dom- inant and the servient 7 6. By the Civil Law it was required that the cause should be perpetual 7 CHAPTER II. Subjects of Easemekts 10 CHAPTER m. ACQUISITION OF EASEMENTS BY EXPRESS GRANT. Sect. 1. Nature of the agreement 12 2. Construction of instruments 31 iii CONTENTS. CHAPTER IV. EASEMENTS BY IMPLIED GRANT. Sect, 1. Disposition of the ownei* of two tenements 38 2. Easements of necessity 53 CHAPTER V. EASEMENTS BY PRESCRIPTION. Sect. 1. The length of time during which the enjoyment must be had 64 2. The persons against and by whom the enjoyment must be had 75 3, Qualities of the enjoyment 82 CHAPTER VI. ACQUISITION OF PARTICULAR EASEMENTS BY PRESCRIPTION. Sect. 1. Rights to water 88 2. Rights to light and air 131 3. Rights of way 138 4. Rights to support from neighboring soil and houses 148 § 1. Natural support to land 148 2. Support to buildings from adjacent land 150 3. Support to buildings by buildings . . 157 Negligence in law and in fact . . 161 CHAPTER VIL Legalization of Nuisances 185 CHAPTER Vra. Party Walls and Fences 200 CONTENTS. ix PART II. INCIDENTS OF EASEMENTS. CHAPTER L Obligation to make Repairs 215 CHAPTER n. Secondary Easements 231 CHAPTER m. Extent and mode of Enjoyment ....•*.. 237 PART m. EXTINGUISHMENT OF EASEMENTS. CHAPTER L Br Express Release 251 CHAPTER n. BY IMPLIED RELEASE. Sect. 1. By Merger 253 2. By Necessity 256 3. By Cessation of Enjoyment 257 b CONTENTS. PART IV. THE DISTURBANCE OF EASEMENTS. CHAPTER I. What amounts to a Disturbance ........ 283 CHAPTER a REMEDIES FOR A DISTURBANCE. Sect. 1. Remedies by act of the party 289 2. Remedies by act of law 292 § 1. By action at law 292 (a) Parties to actions 292 (b) Forms of action 296 (c) Pleadings in actions for disturb- ance 301 (d) Pleadings where tort is justified under an easement .... 308 § 2. Remedy by suit in eciuity .... 313 TABLE OF CASES. ALDRED'S case, 88, 134, 197, 234, 285. Alston V. Scales, 292. Arkwrightv. Gell, 76, 126, 127, 128, 129, 130, 131, 156. Att.-Gen. V. Cleaver, 316. ■- V. Doughton, 134, 135. V. Forlies, 320. V. Nichol, 316, 317, 319. BACK V. Stacy, 2&4, 319. Bailey v. Appleyard, 5, 6, 308. Baines v. Barker, 198, 314-. ' Ballard v. Dyson, 140, 141, 142, 143, 144. Balston v. Bensted, 124. Barber v. Richardson, 77. Barlow v. Rhodes, 32. Barrington v. Turner, 210. Bartlett v. Downes, 63. Baten'scase, 121, 289. Baxter v. Taylor, 76, 114, 293, 294. Bealey v. Shaw, 27, 93, 94, 95, 96, 97, 99, 104, 106, 108, 110. Beaudley v. Brook, 32. Beesley V. Clark, 63, 312. Bell V. Harrison, 306. Beswick V. Cunden, 189, 190. V. Coraedeii, 191. V. Omuden, 191. Bird V. Dickinson, 308. V. Holbrook, 210. Blakemore v. Glamorganshire Canal Navigation, 313, 320. Blanchard v. Baker, 115. Blewitt V. Tregoning, 5, 9. Bliss V. Hall, 92, 185, 194, 195. Blockley v. Slater, 302. . Blythe v. Topham, 207. Bolton V. The Bishop of Carlisle, 20. Bower V. Hill, 116, 245, 286, 294. Boyle v.Tamlvn, 51,203. Bradley, v. Gill, 22^ Bradshaw v. Eyre, 32. Brandscomb v." Bridges, 297, 300. Bront V. Haddon, 291, 296. Brewery case, 193. Brido-es v. Blanchard, 23, 267, 268, 272. Bright V. Walker, 67, 68, 78, 80, 85, 86, 302. Brown v. Best, 88, 232. 's. Lady, case, 44, 121, 254. V. Windsor, 23, 160, 245. Bryan v. Whistler, 10, 21, 28. Buckley v. Coles, 55, 59, 255. Bullard v. Harrison, 4, 299. Bury V. Pope, 64, 66, CAMPBELL V. Wilson, 66, 83. Canham v. Fiske, 46, 47, 253. Chandler v. Thompson, 131, 266, 268, 273. Cherrington v. Abney, 265. Cheetham v. Hanipson, 296. Chichester v. Lethbridge, 196. Clarke v. Tagge, 56, 57, 61. Clements v. Lambert, 33. Cocker v. Cowper, 13, 18, 28, 30, 31. Codling V. Johnson, 66. Coggs v. Barnard, 124. Compton v. Richards, 49, 302. Congleton, Mayor of, v. Pattison, 227. Cooper v. Barber, 124. Coppy v. J. de B., 41. Corner v. Champneys, 210. Cotteril V. Griffiths, 265, 272, 285. Coulson V. White, 313. Coutts V. Gorham, 43. Cowling V. Higginson, 139, 146, 233. Cox V. Matthew/, 45, 94, 96, 106, 109. Crogate's case, 311. Cross V. LevvM.', 79. Crowdcr v. Shiklcr, 196, 316. Crowther v. Oldfield, -303. Cubitt V. Porter, 200, 201. DANIEL V. North, 75, 77, 79. Daniels v. Potter, 183. Dartmouth, Lndy, v. Roberts, 66. Davey v. Askwilh, 54, 57. Dawney v. Dee, 10, 205. Dawson v. Duke of Norfolk, 84. v. Moore, 311. Dear v. Clnvton, 210. Dodd V. Holme, 84, 152, 155, 156, 171, 172, 173, 174, 178. Doe d. Fenwick v. Reed, 66. Foley V. Wilson, 74. V. n'ildev, 27'. Donaston v. Payne, 203. TABLE OF CASES. Dome V. Cashfield, 303. Drake v. Wrigsrlosworth, 255. Drewel v. Towlcr, 10. Dukes V. Gosling, 307. Dumbree v. Dee, 3)0. Duncombe v. Randall, 232. Duttonv. Taylor, 55. Dyson v. Ballard, 139, 145. EASTERBY v. Sampson, 227. Edwards v. Hallinder, 217, 218. Eldridge v. Knott, G6. Elliotson V. Feetham, 185, 193, 194, 195, 200. Emerson v. Wiley, 275. • FENTIMAN v. Smith, 16, 17, 20, 32. Ferrer v. Johnson, 303. Fishmongers Company, The, v. The East India Company, 317. Frankum v. Lord Falmouth, 303, 30T. GARRITT V. Sharpe, 266, 267, 272, 274. Gerard v. Cooke, 32, 215, 232, 233. Glynne v. Nicholas, 110, 114. Gray v. Bond, 75, 76, 80. Grimstone v. Marlow, 308. Grocers' Company, The v. Donne, 182, 183. Grymes v. Peacock, 32. HALLv. Swift, 239, 245, 271, 276,286. Harber v. Rand, 252. Harding v. Wilson, 33. Harmer v. Rogers, 277. Harris v. Drew, 240. V. Ryding, 179. Harrison v. Parker, 20. Hen's case, 229. H=*ndy v. Stevenson, 310. Hewlins v. Shippam, 3, 12, 13, 16, 18, 19, 20, 28, 30, 31. Highamv. Rabbit, 139, 147,^311. Hoare v. Dickenson, 216. Hobson V. Todd, 115, 116. Hodder v. Holman, 237. Holcroft V. Heel, 65, 66. Holder v. Coatcs, 311, Holmes v. Buckley, 275. V. Goring 7, 57, 58, 59, 61 , 246. V. Teller, 32. Hopwood V. Scholficld, 114, 292, 295. Hoskins V. Robins, 20. Howard v. Wright, 110. Howton V. Frearson, 56. Hull, Mayor of, v. Horner, 66. Hussey v. Jacob, 312. n.iOTT V. Wilks, 210. Ivesor V. Moore, 138. JACKSON V. Peaskead, 292, 302. V. Stacey Holt, 138. V. Siiillito, 309. James v. Dods, 59, 60. V. Hayward, 245, 286,292. Janson v. Brown, 21 0. Jenkins v. Harvey, 64, 67. Johnson v. Wilson, 13. Jones v. Bird, 180. V. Powell, 196, 198, 285, 286. V. Price, 72, 309. Jordan v. Attwood, 54, 55, 61. KEYMER V. Summers, 66. Knight V. Moore, 310. Kooystra v. Lucas, 32. LANE V. Neudigate, 320. Laurence v. Obee, 187, 259, 262, Lawson V. Langley, 278, 309 Leeds v. Shakerley, 186, 194, 229, 232. Liford's case, 54. Liggins V. Inge, 13, 18, 23, 24, 25, 26, 27, 99, 100, 104, 107, 256, 262. Livettv. Wilson, 66. Lodie V. Arnold, 291. Logan V. Burton, 252. London, Mayor of, v. Bolt, 319. Luttrel's case, 94, 238, 239, 240, 268, 269, 270, 271, 273. Lyde v. Bernard, 72. MANNING V. Wasdale, 5, 307. Martin v. Goble, 135, 265. Martin v. Nutkin, 314. Mason v. Hill, 92, 94, 99, 100, 101, 1(2, 103, 104, 1(15, 1C6, 107, 108, ]09, 110, 111, 112, 113, 114, 129, 280. ^^ Massey v. Goyder, 60, 178. Masters v, Pollie, 211. Malts V. Hawkins, 200. Mellor V. Spateman, 114. Menzies v. Marquis of Brcadalbane, 10]. Mersey &. Irwell Navigation v. Doug- las, 304. Mikes V. Caley, 299. Monk V Butler, 20. Monmouth Canal Co. v. Harwood, 80, S5, 86. V. Harford, 309. V. Hereford, 63. Moore v. Dame Brown, 186, 284. Moore v. Rawson, 131, 238,240,^259, 260,261,263, 274,275. Morriss v. Edgington, 32, 56, 61, 248. Moreton v. Harden, 300. Margatroyd v. Lloyd, 88. TABLE OF CASES. Murray v. E. I. Company, GG. NICHOLAS V. Chamberlain, 42. Norbury v. Meade, 277. Norris v. Baker, 285. OGLE V. Barnes, 300. Onlay v. Gardiner, 86, 278, 312. PACKER V. Welsted, 55. Palmer v. Fletcher, 39, 40, 45, .50. V. Flossier, 45, 56. V. Kcblethwaite, 110, 114. Parker v. Welstead, 248. Parker v. Smith, 285. Partridge v. Scott, 84, 152, 153, 154. Patrick v. Greenaway, 114. Payne v. Brighen, 56. V. Shedden, 276. Penruddock's case, 4, 101, 192, 193, 195, 198, 291, 295. Penwarden v. Ching, 61, 132. Peyton v. Mayor of London, 46, 157, 158, 159, 160. Pinder v. Wadsworth, 115, 116. Pitts V. Gaince, 299. Plant V. James, 33. Pomfret v. Ricroft, 4, 215, 217, 218, 227, 228. Potter V. North, 67. Powell V. Salisbury, 204. Prescott V. Phillips, 95, 96, llO. Proctor V. Harris, 184. Protheroe v. Matthews, 210. Phythian v. White, 310. RAIKES V. Townshend, 291. Rex V. Inhabitants of tile County of Wilts, 226. V. Inliabitants of Hermitage, 254. V. JoUitTe, 67. V. Pagham Commissioners, 169, 181, 182. V. Pedlcy, 295. V. Pearce, 197. V. Roswell, 290. — ^ V. Trafford, 101. V. Tindal, 284. Reynolds v. Edwards, .58, 138. Richards v. Fry, 72, 278, 310. Rider v. Smith, 228, 302. Riviere v. Bower, 41. Roberts V. Macord, 135, 136- Robins V. Barnes, 41, 43. Robinson v. Lord Byron, 316, 320. Rolf's case, 189. Rolf V.Rolf, 190, 191,192. Rooth V. Wilson, 204. Roswell V. Prior, 192,- 296. Ramsey v. Rawson, 20. Runcorn v. Doe, d Cooper, 77. Ryder v. Bcnlham, 320. SARCH V. Blackburn, 207, 209. Saunders v. Moses, 237. V. Newman, 97, 98, 106, 107, 118, 270. Sanndeys v. Olitf, 32. Sampson v. Smith, 319. Sandys v. Trefusis, 302. Scott v. Shepherd, 300. Selby V. Bardons, 311. Senhouse v. Christian, 32, 232, 238. Shadwell v. Hutchinson, 295. Siiepcott V. Mudford, 57. Shrewsbury's Earl of, case, 287, 298, 299. Countess, case, 179. Shury v. Piggott, 39, 44, 50, 51,52, 121,254. Simpson v. Lewlhwaite, 304, 309. Slingsby v. Bernard, 152. Slomau V. West, 316. Smith V. Godwin, 297, 300. V. Martin, 152. Cliristian's case, 296. Some V. Barwish, 192. South V. Jones, 57. Spencer v. London and Birmingham Railway Company, 319. St. John V. Moody, 302. Stafford, Marquis of, v. Coyney, 138. Stanscll V. Tollard, 151. Staple V. Haydon, 32. Stott V. Stott, 237. 255, 311. Sutton V. Clarke, 164. V. Lord Montfort, 319. Spencer's case 227. Squires v. Campbell, 134. TAYLOR V. Waters, 16, 17, 18, 21, 27, 30. V. Whitehead, 4, 215, 227, 229. Tcbbutt V. Selby, 301, 306. Tennant v. Goldwin, 39, 187, 217, 283, 302. Thackrah v. Seymour, 2-52. The king v. The Inliabitants of Har- row-on-the-Hill, 14. V. Horndon-on-the-Hill, 30. The Queen v. The Inhabitants of CIu- worth, 56. Thomas v Thomas, 120, 271. Tickle V. Brown 63, 86, 309, 311. Tolson V. Kaye 66. Townsend v. Wathen, 205. Trower v. Chadwick, 170, 174, 175, 176, 177, 178, 302, 307- Turbcvil v. Stamp, 163, 165, 167, 168, 179. Tyler v. Wilkinson, 90, 241, Tyrringham's case, 50, 244. VAUGIIAN V. Menlove, 164, 165, 166, 167, 163. TABLE OF CASES. Vere v. Lord Cawdor, 210. Villiers v. Ball & Others, 302, WADHURST V. Dam, 210. Wall V. Nixon, 76. Wallis V. Harrison «&- Others, 28, 29, 31. Walters v. Pfiel, 160, 170, 171, 178. Ward V. Lawton, 237. Waterman v. Sopcr, 211, 212. Weaver v Ward, 163. Webb V. Paternoster, 15, 17, 18, 21, 27, 20, 30. Weld V. Hornby, 232. Weller v. Semeatoh, 315, 318. Wells V. Ody, 9?6, 297, 298, 300. Westbourn v Morduant, 188. Weston V. Alden, 241. Whalley v. Thompson, 33; White V. Reeves, 252. Whitter v. Crompton, 66. Whitting V. Beenway, 298. Wigford V. Gill, 290. Wilde V. Minsterley, 149, 150, 151. Williams V. Holland, 300. Williams v. Morland, 93, 94, 99, 100, 102, 106, 107, 112, 114. Winford v. Wollaston, 302. Winstanley v. Lee, 138, 313, 316, 318. Winter v. Brockwell, 15, 16, 17, 18, 20, 27, 29, 30, 31. Wiseman v. Denham, 57. Wright V. Howard, 100, 101, 102. Wright V. Rattray, 309. Wright V. Williams, 72, 81, 83, 88, 119, 185, 309. Wood V. Lake, 18, 21, 30. Wortledge v. Kingwil, 32. Wyatt v. Harrison, 149, 151, 152, 154, 155, 301, 302. Wyat Wyld's case, 244. YOUNG v. Spencer, 114. TREATISE LAW OF EASEMENTS. INTRODUCTION. In addition to the ordinary rights of property, which are determined by the boundaries of a man's own soil, the law recognises the existence of certain rights accessorial to those general rights, to be exercised over the property of his neighbor, and therefore imposing a burthen upon him. That branch of these accessorial rights which confers merely a convenience to be exercised over the neighboring land, without any participation in the profit of it, is called, by the law of England, Easements, as rights to the pas- sage of light, air, and water. Those accessorial rights, which are accompa- nied with a participation in the profits of the neighboring soil, are called Profits a prendre, as rights of pasture, or of digging sand. Both these classes are comprehended under the Servitudes of the civil law. In treating of pra3edial Sevitudes, no distinction is made between rights of this * nature whether accompanied or unaccompanied by a participa- *2 tion in the profits of the land (a). The tenement to which the right is attached is called the dominant; that on which the burthen is imposed the servient tenement The term servitude is used to express both tlie right and the obligation ; the term easement gen- erally expresses the right only. The origin of some easements is as ancient as that of property — one ten- ement may be subjected to the convenience of another by the hand of nature itself— the inferior elevation of one in relation to the other, may subject it to the fall of water from the higher ground. A similar disposition may be pro- duced by the act of man permanently changing their previous relation, and thus affixing to them qualities with which they were not originally invested — as where, by the erection of buildings, water is discharged upon the neigh- boring laud, or light and air are received through a window. Other ease- (a) Inter rusticorum praediorum servitutes quidam computari recte pntant, aquoe haustum, pecoris ad aquara adpulsum, jus pascendi, calcis coquendee, arenee fodi- ndaj. — I. §2. ff. de serv. prsed. endsc. — I. §2. ff. de serv. prsed. 1 2 INTRODUCTION. ments create no apparent change in tlie condition of the two tenements, but exist only l)y a repetition of the acts of man, as riglits of way. " The origin of servitudes," says an eminent French writer, " is as ancient as that of property, of which they are a modification ; by their natural dis- position the inferior lands were placed in a species of dependence on those more elevated, and the first possessors of the soil recognised the indispen- sable necessity of such subjections. When the extension of cultivation brought men nearer together, and the want of a common defence formed * 3 the first society, public * utility and safety led to the conviction, that it was necessary to restrict in certain cases rights legitimate in themselves, but the absolute exercise of which by individuals could not take place, with- out rendering some properties almost valueless. In a short time similar rights were stipulated for by private persons, as matter of utility, or even pleasure. Thus, from the disposition of nature, the wants of society, and the agreements of individuals, have originated prtedial servitudes" (a). By the law of England, the origin of rights of this kind is referred either to an express contract between tlie parties, or to a similar contract implied from their conduct — from the peculiar relation of the parties at the time they became possessed of their respective tenements, or from the long continued exercise of the right, from which a previous contract between them may be inferred. In like manner, by the civil law, the origin of servitudes was referred to " Lex, natura loci, vetustas" {h), which last, as in the English law, for the pre- vention of litigation, was allowed to confer a valid title. The number pr modifications of rights of this kind may be infinite both in their extient and mode of enjoyment (c), as the convenience of man in using his property requires. "To descend now," says Lord Stair, "to the kinds of *4 servitudes, there may be as many as* there are ways whereby the liberty of a house or tenement may be restrained, in favor of another tene- ment ; for liberty and servitude are contraries, and the abatement of the one is the being or enlarging of the other" {d). (a) Pardessus, Traite des servitudes. — s: 1. (b) In sunima tria sunt per quae inferior locus superior! servit. Lex, natura loci, vetustas, quae semper pro lege habetur ; minuendarum scilicet litium causa. — L. 2. fF. de aq. et aq. pi. arc. C. L. 2. fF. de longi temporis. (r) Nullum est dubium, quin plures esse possint hujus generis servitutes, pro diversa ratione et habitantium necessitate. — Heineccius, El. J. C Lib. 8. § 148. (d) Institutes, Book 2, tit. 7. PART I. OF THE ACQUISITION OF EASEMENTS. CHAPTER I. OF THE ESSENTIAL QUALITIES OF AN EASEMENT. An easement may be defined to be a privilege without profit, which the owner of one neighboring tenement hath of another, existing in respect of their several tenements, by which the servient owner is obliged " to suffer or not to do " something on his own land, for the advantage of the dominant owner (a). The essential qualities of easements may be thus distinguished : — IsL Easements are incorporeal. 2nd. They are imposed upon corporeal property. 3rd. They confer no right to a participation in the profits arising from it 4th. They must be imposed for the benefit of corporeal property. 5th. There must be two distinct tenements— the dominant, to which the right belongs ; and the servient, upon which the obligation is imposed. Gth. By the civil law, it was also riquired that the cause must be perpetual. * Sect. 1. — Easements are incorporeal. * 6 "A right' of way, or right of passage, for water, where it does not create an interest in the land, is an incorporeal right, and stands upon the same footing with other incorporeal rights" [h). Considei-ed with regard to the servient tenement, an easement is but a charge or obligation, curtailing the ordinary rights of property (c) : — with re- («) Termes de la Ley, tit. Easements. Servitus est, jus in re aliena alteri constitutum, quo dominus, qnod huic alterr commodum sit, aliquid aut pati in suo, aut in suo non facere, cogitar. — Vinnius, ad Inst. lib. 2. tit. 3. (h) Per Curiavi in Heidins v. Shippam, 5 B. «fc Cr. 221 ; S. C. 7 D. & R. 783. Servitutes praediorum rusticorum, etiamsi corporibus accedunt, incorporales ta- men sunt. — L. 14. ff. de serv. (c) Pertinent enim ad libera tenementa jura sicut et corpora, jura sive servitu- tes, diversis respectibus : jura autem sive libertates dici poteruiit ratione tene- mentorum quibus debentur ; servitutes vero ratione tenementocum a quibus de- bentur. Bracton, lib. 4, fol. 22L ACQUISITION OF EASEMENTS. Easements are imposed upon corporeal Property. gard to the cloiiiiiiaiit tenement, it is a right accessorial to these ordinary rights, constituting, in both cases, a new quality impressed upon the respec- tive heritages (a). Sect. 2. — Easements are iviposed upon corporeal Property, and not upon the Per- son of the Owner of it. The right conferred by an easement attaches upon the soil of the servient tenement ; the utmost extent of tlic obligation imposed upon the owner being, not to alter the state of it, so as to interfere with the enjoyment of the ease- ment (6) by the dominant. * 7 * The obligation upon him is in fact negative — to suffer or not to do — ceasing altogether upon his ceasing to be the owner of the servient herit- age (c); and passing with the servient heritage, upon its transfer, to each suc- cessive proprietor [d). So completely is this the case, that, if any disturbance of an easement has taken jdace previous to a transfer of the servient heritage, although such tor- tious act would give a right of action against the former owner, his successor is also liable if he allows it to continue (e). Sect- 3. — Easements confer no right to a participation in the Profts of the servi- ent Tenement. Easements are specifically distinguished from other incorporeal heredita- («,) Quid aliud sunt jura prEediorum quam prcedia quahter se habentia ? Ut bo- nitas, salubritas, amplitudo. — L. 86. ff. de v. s. (b) Tmjlor v. Wliitchcad, 2 Doug. 749: and see Pomfret v. Ricroft, 1 Saund. 322 : Bullard v. Harrison, 4 M. &. S. 387.— Vide post, Incidents of Easements. In omnibus servitutibus refectio ad eum pertinet qui sibi servitutem asserit, non ad eum cujus res servit. — L. 6. § 2. fF. si serv. vind. (c) Aio esse jus, quo dominus ahquid pati in suo, aut in suo non faccre, cogitur, ex natura omnium servitutum ; pati in suo, puta re sua utentem, fruentem, per fundum suum euntem, agentem, aquamve ducentem, tignum in jedes suas immit- tentem ; non facere, veluti altius non sBdificare, in suo non ponere quod luminibus ffidium nostrarum aut prospectui ofRciat, «fec. Plane enim ita servltus constitui non potest, ut quis aliquid cogatur facere in suo ; puta viridaria aut arbores pro- spectus nostri causa toUere, &c., obligatio heec erit, non servitus constituta ; et ideo, praedio alienato, non sequetur actio novum ppssessorem, ut fit ubi servitus constituta est ; sed in eum, qui id facere promisit, hteredemque ejus, actio in per- sonam dabitur.— Vinnius, ad Inst. lib. 2, tit. 3— L. 15. § 1. fF. de serv. (d) Non ignorabis, Si priores possessores, aquam duci per praedia prohibere jure non potuerint, cum eodem onere perferendse servitutis, transire ad emptores eadem prsedia posse.— C. L. 3. ff. de serv. et aq. (c) Pcnruddock's case, 5 Rep. 101 : and post. Remedies for Disturbance. ESSENTIAL QUALITIES. Easements must be imposed for the beneficial Enjoyment of corporeal Property. ments, by the absence of all right to participate in the profits of the soil charged vvitli tliem. The right to receive air, light, or water, passing across a neighbor's land, may be claimed as an easement,* because the i)roperty in them re- * 8 mains common ; but the right to take "something out of the soil" is a profit a prendre, and not an easement (a). The servitude of the civil law had a much wider signification : compre- hending, in addition to the casements proper of the English law, many rights which in it fall under the division of profits a prendre (6). fS Sect. 4. — Easements must he imposed for the beneficial Enjoyment of real corpo- real Properly. An easement, as such, can only be claimed as accessory to a tenement. This position was recognized as law, by the judges, in a very early case (c), " Suppose," said Shars, J., " I grant to you a way over my land to a certain mill, and you are not seised of this mill at the time, but you purchase it after- wards: notwithstanding I disturb you in this way afterwards, you shall not have assize, though you may have a writ of covenant." To which it was re- plied, "In your case it is no marvel to me, altliough no assize lies, inasmuch as he had not the frank tenement to which he claimed to have (dut avoir) the \ way, at the time the way was granted to him, and therefore he could not have I had assize if he had been disturbed at the time wheB the grant was made ; iand as he eould not then have assize, * tire purchase of the frank teBe- * 9 ment afterwards would not enable him to maintain this action." \ "Nullus hujusmodi servitiltes," says Bracton, "constituere potest, nisi ille, iqui fumdum habet et tenementum ; quia proediorum, aliud liberum, aliudser- vituti suppositum {d). " Et ita pertinent servitutes alicui fnndo ex constitutione sive ex imposi- tione de voluutate dominorum" (e). (a) Manning v. JVasdah, 5 Adol. & Ellis, 764 ; S. C. 1 Nev. &, P. 172 : Blcicett v. Tregoning, 3 Ad. &, Ellis, .5.54 ; S. C. 5 Nev. & Man. 308 : Bailey v. Jppleijard, 3 Nev. & Per. 257. (b) Inter rusticorum prtediorum servitutes, quidam computan recte putant, aquae haustum, pecoris ad aquam appulsum, jus pascendi, calcis coquendse, arente fodi- endtp. — I. § 2. fF. de serv. prsEd. (c) 21 Ed. 3, 2, pi. 5. — (rf) Lib. 4, f. 220. (e) Idem. f. 221. Quoties nee hominum, nee praediorum, servitutes sunt, quia nihil vicinorura interest, non valet ; veluti ne per fundum tuum eas, aut ibi consistes, et ideo si mihi concedas jtts tibi non ess^ fundo tuo uti, frni, nihil agitur ; aljter atque si concedas mihi jus tibi non esse in fundo tuo aqtiam quaerere, minuendte mese aqusB gratia. — L. 15. ff. de serv. ACQUISITION OF EASEMENTS. Easements must be imposed for the beneficial Enjoyment of corporeal Property. Thus it has been recently intimated on high authority, that a plea to turn cattle on land generally, without stating for what purpose, is bad (a). Proba- bly, however, in the English as in tlie civil law, the grant of an easement in respect of a house about to be purchased, or built, by the grantee, would enure as such. By the civil law, although it was clearly established that a servitude could be acquired only by the proprietor of the heritage to be benefited by it {b) y yet where, at the date of the grant, there was an intention to erect the build- ing to which the servitude was to be attached, the right so conferred was valid (c). It followed from this rule that every servitude must be productive of advan- tage to the dominant tenement. A mere restriction upon the rights of the * 10 servient * owner was invalid, if unaccompanied by any benefit to the dominant owner, or if such benefit were merely a personal one to him [d). For the same reason no servitude could exist, unless the dominant and ser- vient tenements were sufficiently near, to allow the one to receive a benefit from the subjection of the other (e). The servitude vvlien once acquired, passed with the heritage into the hands of each successive owner (/). Many personal rights, which, in their mode of enjoyment, bear a great re- (a) Per Littledale, J., Bailey v. JJppleyard, 3 Nev. & Per. 257. (b) Nemo enim potest servitutem acquirere, urbani vel rustici prsedii, nisi qui habet prsedium. — I. § 3. if. de serv. praed. (c) Futuro Bsdificio, quod nondum est, vel imponi vel acquiri servitus potest. — L. 23. § 1. fF. de serv. praed. (d) Ut pomum decerpere liceat, et ut spatiari, et ut cccnare in aliena possimus, servitus imponi non potest. — L. 8. Ibid. (e) Quod si aedes mese a tnis cedibus tantura distant ut prospici non possint; aut medius mons earum conspectura auferat, servitus imponi non potest. — L. 38. ff. de serv. urb. praed. Nemo enim propriis aedificiis servitutem imponere potest, nisi et is qui cedit, et is cui ceditur in conspectu habeant ea sedificia, ita ut ofRcere alteram alteri po- test.— L. 36. Ibid. Neratius libris ex Plautio ait : nee haustum pecoris, nee appulsum, nee cretae eximendae, calcisque coquenda?, jus posse in alieno esse, nisi fundum vicinum ha- beat ; et, hoc Proculum et Atilicinum existimasse, ait. — L. 5. § 1. fT. de serv. praed. rust. In rusticis autem praediis impedit servitutem medium praedium quod non servit. — L. 7. Ibid. (/) Si fundus serviens, vel is cui servitus debetur, publicaretur, utroque casu durant servitutes ; quia cum sua conditione quisque fundus publicaretur. — L. 23. § 2. fF. de serv. prsd. rust. Cum fundus fundo servit, vendito quoque fundo, servitutes sCquuntur. — L. 12. ff. coram, praed. (See Whedock v. Thayer, 16 Pick. 68.) ESSENTIAL QUALITIES. Dominant and Servient Tenements. Causes of Easements must be perpetual. semblance to easements, as, for instance, rights of way, may be conferred by actual grant, independently of the possession of any tenement by the grantee ; but such rights, though valid between the contracting parties, do not possess the incidents of an easement. In case of disturbance of a personal right thus given, the remedy would appear to be upon the contract/ODly. * Sect. 5. * H Hiere mmt be two distinct tenements — the dominant, to iMch the right belongs — and the sement, upon ivhich the obligation is imposed. It is obvious, that if the dominant and servient tenements are the property N of the same owner, the exercise of the right, which in other cases would be the subject of an easement, is, during the continuance of his ownership, one | of the ordinary rights of property only, which he may vary or determine at ( pleasure, without in any way increasing or diminishing those rights. It is therefore essential that the dominant and servient tenements should be- long to different owners : immediately they become the property of the same j person the inferior right of easement is merged in the higher title of owner- ship (a). This principle is thus laid down by Bracton : "Nemini servire potest fun- ( dus suns proprius, quia prsediorum, aliud liberum, aliud servituti supposi- ! tum " (6). "Et talis dici poterit constitutio quadomus domui, rus'ruri, fundus fuudo, tenementum tenemento, subjungatur; et non tantuin personae per se, vel ten- ementum per se, sed uterque simul, tam tenementum, quani personae " (c). " A servitude is a charge imposed upon one heritage for the use and advan- tage of an heritage belonging to another proprietor " {d). * Sect. 6. — By the Civil Law the causes of Easements must be perpetual. * 12 It is not to be understood by this position that the civil law required the enjoyment of an easement to be continuous and necessarily perpetual, condi- tions which in many cases would be obviously impossible (e) ; but only that (a) Holmes v. Goring,^ Bing. 83; S. C. 9 Moore, 166. Nulli enim res sua servit. — L. 26. fF. de serv. praed. Si quis aedes quse suis aedibus servirent cum emisset, traditas sibi accepit, confusa sublataque servitus est. — L. 30. ff. de serv. prjed. urb. (b) Lib. 4, f. 220. (c) Ibid. f. 221. (d) Code Civil, art. 637. (e) Tales sunt servitutes, ut non habeant certam continuamque possessionem ; quia nemo tam continenter ire potest, ut nullo momento posso sio ejus interpellari videatur. — L. 14. ff. de serv. ACQUISITION OF EASEMENTS. Causes of Easements must be perpetual. the qualities thus impressed upon the doni^nant and servient tenements should be in their nature permanent, and sucli as were capable of continuing in their present condition for an indefuiite period (a). If from the nature of the servient tenement the enjoyment can only con- tinue during a limited space of time, as where water is drawn from a mere artificial collection, no servitude was acquired (6). The want of direct authority upon this point in the law of England, ren- ders it diflicult to determine to what extent this principle is admitted by it ; and even in the civil law it is by no means easy to define the rule with pre- cision ; for though it is there laid down that nothing which depended upon the mere act of man (quod manu fit), as a discharge through an aperture in * 13 * the wall of water used in washing the pavement, could constitute a * servitude, it seems clear that a servitude might be acquired to discharge smoke and steam arising from hot baths, the nse of which would obviously be of equally uncertain duration, and arising directly from the hand of man (c). The rule laid down by Vinnius is " That a servitude has a perpetual cause where it is natural, though not constant, as rain water, which falls naturally, though not constantly ; and that those servitudes which arise by the act of man have also a perpetual cause, if the tenement, or any part of it, has been adapted or prepared (parata) for its enjoyment, as the immission of smoke" (d). It is obvious, however, that it is difficult to reconcile this rule with the in- stance above cited from the Digest, unless tiie aperture there mentioned be considered as made for a temporary purpose only. Bracton appears to have recognised this as an essential element : after lay- ing it down that a man may Imve an assize for disturbance of his " haustus aquae" he continues, (a) Omnes servitutes prsediorum perpetuas causas habere debent ; et ideo, neque ex lacu, neque ex stagno, concedi aquae ductus potest. — L. 28. ff. de serv. urb. prsBd. Servitus aquae ducendae, vel hauriendae, nisi ex capite, vel ex fonte, constitui non potest. — L. 9. fF. de serv. praed. rust. Stillicidii quoque immittendi, naturalis et perpetua causa esse debet. — L. 28. ff. de serv. urb. praed. (b) Foramen in uno pariete conclavis vel triclinii quod esset proluendi pavimenti causa, id neque flumen esse, neque tempore acquiri, placuit. Hoc ita verum est si in eum locum nihil ex caelo aquae veniat : neque enim perpetuam causam habet, quod manu fit; at quod ex cobIo cadit, et si non assidue fit, ex natural! tamen causa fit, et ideo perpetuo fieri existimatur. — Ibid. (c) Nam et in balneis inquit vaporibus, quum Quintllla cuniculum pergenteni in Ursi Julii instruxisset, placuit, tales servitutes imponi.^ — L. 8. § 7. ff. si serv. vind. (d) Perpetuum illis est quodcumque ex natural! causa oritur, etsi non sitassidu- um, ut ecce, aqua pluvia ex natural! causa oritur etsi non assidue pluit ; quod enim naturaliter fit, perpetuum videtur, licet non fiat assidue, ut defectio lun^e. Sed et quod ex facto nostro oritur, perpetuum habetur, si ejus causa praedium aut pars preedii parata est, ut fumi immissio. — Vinnius, ad Inst. lib. 2, tit 3. ESSENTIAL QUALITIES. Causes of Easements must be perpetual. "Set! hoc (breve) non est de cisterria, quia cisterna non habet aqiiam per- petuam, nee aquam vivam, quia cisterna inibribus concipitur" (a). There are many rights which in their mode of enjoyment* partake * 14 of the character of easements : arent servitudes are those w hich have no external sign of their exi.stence " [b). The leading division of prfedial servitudes in the civil law, but which ap- j)ears to affbrcfno practically useful distinction in the English law, is into ur- ban and rustic servitudes — the former including all servitudes relating to buildings wherever situated ; the latter, all those relating to land uncovered by buildings, whether situated in town or cotmtry. The rustic servitudes comprised rights of way and watercourses and rights to drive cattle to water (c) ; the urban servitudes comprehended all those which belonged to a building, as eaves-droppings, support of beams, rights to light id). (a) Code Civil, art. 688. (ft) Code Civil, art. 689. (f) Porro autem ut prsedia vcl rustlca sunt vcl urbana, ita quoque et servitutes qu8D iis inhcerent, vel rusticce sunt vel urbanae. Prsedia rustica sunt, loca aedificiis vacua, in urbe area, ruri ager ; non enim loco, sed materie et genere, distinguun- tur. — Vinnius, ad Inst. lib. 2, tit. 3. Rusticorum praedioruni jura sunt hjEC ; iter, actus, via, aquae ductus. — I. ft. de serv. pracd. Inter rusticorum prsediorum servitutes, quidam computari recte putant aquae haustuni, pecoris ad aquam appulsum, jus pascendi, calcis coquendae, arensE fodi- endEB.— Ibid. § 2. (d) Pra;diorum urbanorum servitutes sunt hae, quae sedificiis inshrent ; ideo ur- banorum pra;diorum dictae quoniam aedificia omnia urbana pranlia appellamus, etsi in villa (in the country L. 211. fF. de v. s.) aedificata sint. Item urbanorum prae- dioruni servitutes sunt, ut vicinus onera vi«ini sustineat, ut in parietem ejus liceat vicino tignum immittere, ut stillicidium vel flumen recipiat quis in aedes suas, vel in aream, vel in cloacam, ne altius quis toUat aides suas, ne luminibus vicini of- ficiat.— Ibid. § 1. Et dcnique projiciendi, protegcndique. — L. 2. fF. de serv. pra?d. urb. Jus cloacae mittendac sorvitus est. — L. 7. ff. de serv. Est et hire servitus ne prospectui ofRciatur. — L. 3. ft", si serv. vind. CHAPTER III. OF THE ACQUISITION OF EASEMENTS BY EXPRESS AGREEMENT. Nature of the Agreement. * The orjgin of every easement may be referred to an agreement, * 18 either express or imjjlied, of an owner of the property to be subjected to it Tlie cases of express agreement are of comparatively rare occurrence, and present, for the most part, but little difficulty, as far, at least, as concerns the mere extent of the right so conferred. By fur the greater proportion of ease- ments rest on implied agreements, the terms and conditions of which can be collected only from the actual amOunf of ert\ployment proved to have been had. Sect, h— .Va/itrc of the. ^'JgreemenL Wliatcvcr doubts may formerly have existed as to the creation of casements by express agreement, it seems to be now fully settled that, like all other in- corporeal hereditaments, tbtrt can be created only by an instrument under seal. " And here," says Lord Coke [a], " is implied a division of fee or inheritance; viz. into corporeal, as lands and teneiirents, which lie in livery comprehended in this word feoffment, and will pass by livery, by deed, or without deed ; and * 19 incorporeal, * which lie in grant, which cannot pass by livery, but by deed, as advowsons, commons, &c. ; and the deed of incorpoi'eate inherit- ances doth equal the livery of corporeate. Grant, concessio, is pro[)erly of things incorporeate, which, as hath been said, cannot pass without deed." "A license is not a grant, but may be recalled immediateh', and so might this license the day after it was granted," said Lord Ellenborough in TJie King v. TVie Inhahitanfs of Harrow on the Hill {h). The license in this case was from the lord of the manor to build a cottage on the waste : the license had been executed, and the cottage inhabited by the licensee. In Hewlins v. Skippam (c), where the question was, whether a right to a drain running through the adjoining land could be conferred by parol license, this point was very fully considered ; and, in the elaborate judgment deliver- («) Co. Litt. 9. a. (b) 4 M. & Sel. 565. (c) 5 B. & Cr. 221 ; S. C. 7 D. & R. 763 BY EXPRESS AGREEMENT. 13 Nature of the Agreemeirt. ed by tlie court, it was decided, that such an interest can only be created by deed. In Cocker v. Coivper (a), the plaintiff sued for the obstrnction of a certain drain which had been originally constructed at the plainliff^s expense, on the defendant's land by his consent verbally given. After it had been so enjoyed for some time, the defendant obstructed the channel, so that the water was i)re- vented running as before ; and it was contended, on the part of the plaintiff, that the license so given having been acted upon could not be revoked by the defendant ; but the court, without hearing the counsel for the * de- * 20 fendant, held that the plaintiff was clearly not entitled to recover : — " with re- gard to the question of license," the court said, "the case of Hewlins v. Ship- pam is decisive to show that an easement like this cannot be conferred except by deed, nor has the plaintiff acquired any other title to the water." '' The mere entry into the close of another, and cutting a drain there, cannot con- fer a title." Notwithstanding these positive authorities, questions of considerable diffi- cvdty and nicety have been raised as to the effect of a license ; and it has been contended, "that a beneficial privilege in land may be granted without deed, and, notwithstanding the Statute of Frauds, without writing" [b] (2). (a) 1 Cr. M. & Hos. 418. (b) 7 Taunt. 384. (2) lAcfnst. — The entry of one man upon the lands of another, without liis con- sent, is, prima facie, a trespass, and requires to be justitied. In Chairman v. Harts- horne, 9 Conn. R. 564, defendant was employed as superintendant of a manufac- tory, but before the time had expired he was dismissed by notice in writing. He still persisted' in entering upon the premises and endeavored to induce the vi'ork- men to obey him, and not the plaintiff. And judge Daggett charged the jury that the defendant was justified in doing so ; for his contract gave him the right to enter and occupy as superintendant till the contract had expired, saying— When the plaintiff " bound himself, by contract, to pay the defendant for superin- tending his manufacturing establishment," he has given to him full authority to enter and occupy during the continuance of the contract. The jury found a ver- dict for defendant, but the Court granted a new trial, on the ground that defend- ant had no right to enter after he was dismissed ; for the master has at all times the rio-ht to dismiss his servant, making himself responsible for the consequences, when he dismisses without cause. Although a title to real estate cannot be created by parol, yet a parol license NiW always prevent the party giving it from sustaining an action of trespass ; not that it gives a title, but because it shows that there has been no trespass. Thus, where the grantee at the time of the execution of the deed agreed that the grantor might enter upon the premises to remove certain property belonging to him : Held, that the former could not maintain trespass for entering in pursuance of such license. Parsom, v. Camp, 11 Conn. R. 525. The act was done by the con- 14 ACQUISITION OF EASEMENTS Nature of the Agreement. Upon a review of the autlrorities, liowever, it would apix^ar that tliis posi- tion cannot be considered as law ; and tliat tlie utmost effect of a license is — that it may work the extinguishment of an existing easement — as where per- mission is given to a man to erect something on his own land which is incom- patil)le with the continuance of some easement over if, to which the licenser was entitled. " There is nothing unreasonable," says Thulal, C. J., in Liggins v. Inge (a), "in holding that a right which is gained by occupancy may be lost by aban- donment." The only exception to this general rule aj)pears to be in the case of Copar- sent of the person, who claims he has been injured thereby ; and he who consents cannot be considered as injured : Volenti nonfit injuria. A parol license to use water for a mill, where the enjoyment is preceded by the expenditure of money ; and capital invested in improvements on the faith of it, has been considered sufficient to constitute the grantee a purchaser for valuable consideration, although no consideration in fact was paid. 14 S. &, R. 267 ; 4 ib. 241. See also 5 Watts, 308. And although a license gives no title, it will pre- vent the party from sustaining an action of trespass ; for the license shows that there has been no trespass, 11 Conn. 525. One tenant in common may give a license to a third person to enter upon the land and take timber. Baker v. Wheeler., 8 Wend. 505. A parol agreement for the erection of a dam upon the land of another in order to create a permanent water power for the use of mills, is void. Mumford v. IVhit- ney, 15 Wend. 330; Cook v. Stearns, 11 Mass. 536. A permanent right to hold another's land for a particular purpose, and to enter upon it at all times without his consent, is an important interest, which ought not pass without writing, and is the very object provided for by the statute. By Parker C. J. 11 Mass. 536. It seems, however, to have been differently considered in Rerick v. Kern, 14 S. & R. 267, where a parol license to use water for a mill, where the enjoyment was preceded by the expenditure of money, was held to be a contract for the purchase for a valuable consideration, although no consideration was in fact paid for the li- cense. See also 4 S. & R. 241 . A parol license to abut a dam upon the land of another, may be revoked at any time before' the expenditure of money upon the faith of it. 5 Watts, 308. The statute in New York provides that highways may be laid out by the consent of the oicner ; consequently the laying out is valid without writing. JYoijes v. Chapin, 6 Wend. 461. A license to cut timber from lands and to remove the same does not convey an interest in lands within the statute of frauds, or give any property in standing trees. Kerr v. Connell, Berton, 151. Such a license gives the licensee no right to timber cut within the described limits, by a stranger without authority, ib. Timber so cut remains the property of the owner of the land ; but against every other person, the possession of the timber and the labor bestowed upon it give the maker, though a wrongdoer, the right to it. ib. {a) 7 Bing. 693. BY EXPRESS AGREEMENT. 15 Coparceners. Winter v. Brockvvell. ceners; for, as "land, or other tilings, that lie in livery, may pass between them without deed, so also may incorporeal hereditaments which lie in grant" (a). *In Winter v. Brockwdl (6), the declaration stated, that the plaintiff *21 was entitled to an easement of a passage for light and air to his dwelling- hoHse, through an ancient window, over an open space of land of the defend- ant, and that, by means of such open space, noisome smells from the defend- ant's house evaporated, without occasioning any nuisance to the occupier of the plaintiff's liouse, and that the defendant wrongfully erected a skylight above the plaintiff's ancient window, and covering the open space above men- tioned, by means of w-hich "tlie light and aif were prevented entering the plaintifl's window and into his house, and noisome smells, arising from the adjoining house, were prevented from evaporating, and entered the i)laintiff's dwelling-house." The defendant pleaded the general issue. It appeared in evidence that the open space "which belonged to the de- fendant's house had been inclosed and covered by a skylight in the manner stated, ivilh the express consent and approbation of the plaintifi', obtained before the inclosure was made, who also gave leave to have part of the framework nailed against his wall ; some time after it was finished, the plaintiff objected to it, and gave notice to have it removed ; but Lord Ellenborough was of opinion, that the license given by the i)laintiff to erect the skylight, having been acted upon by the defendant and the expense incurred, could not be re- called, and the defendant made a wrongdoer, at least, not without putting him in the same situation as before, by offering to pay all the expenses which had been incurred in consequence of it. And, under this direction, the de- fendant olitained a verdict." On a motion for a new trial, in support of which no * argument ap- * 22 pears to have been advanced, hvs Lordshi[) said, " That the point was new to him when it occuiTcd at the trial, but he then thought it very unreasonable, that, after a party had been led to incur expense iiT consequence of having a license fiom another to do an act, and the license had been acted upon ; that the other should be permitted to recal his license, and treat the first as a tres- passer for having done that very act. That he had afterwards looked into the books upon this point, and found himself justified by the case of JVthb v. Paternoster (c), Avhere Haughton, J., lays down this ride, that a license executed is not countermandable, but only w here it is executor3\ And here the license was executed." It is to be observed, in this case, that the action was brought for the conse- quential injury only, and not for the trespass committed on the plaintiff's land by affixing the iron work to his wall, as to which no point appears to have (a) Johnson v. JVilson, Willes, 253. Co. Litt. 169 j 21 Ed. 3. 2. (h) 8 East, 308. (r) Palmer, 71 ; 2 Roll. Rep. 1.'2 ; Popli. I.M . 16 ACQUISITION OF EASEMENTS Winter v. Brockwell. Fentiman v. Smith. been made. The question arising on the Statute of Frauds, as to this being an interest in land, was, we are tohl in a note, " stated and overruled." The most important observation which suggests itself, is on the statement of the injury in the declaration ; the complaint appears to have been twofold : that is to say, the plaintiff complained that his easement — his passage of light and air to his ancient window — was obstructed, and also that he had been depriv- ed of a distinct right, which every owner of property possesses, without any prescription, and which can only be infringed upon by the acquisition of an easement on the part of his neighbor ; viz. a right to enjoy his property * 23 * without being subject to any private nuisances, such as the noisome smells mentioned in this case. From the loose manner in which the case is reported, it is not easy to say whether the smells proceeded from the defend- ant's house, or from the house of a third party ; in Hewlins v. Shippam, the latter was considered to have been the case. Nor does it appear from the statement of facts in the report, whether any such smells had actually been caused by the defendant, or whether, supposing any such smells to have been produced, evidence of a prescriptive right to make such a nuisance was ad- duced on the part of the defendant, the only injury alluded to in the judgment being the obstruction to the light and air. This case appears to have under- gone very little consideration. Fentiman v. Smith, [a) was an action brought for diverting a water course from the plaintiff's mill. The declaration stated the plaintiff's possession of a mill, and that by reason thereof he was entitled to the use and benefit of the water of a rivulet, which, until the interruption complained of flowed through a tunnel into another stream, whereon the plaintiff's mill was built ; but that defendant cut a channel, and thereby diverted the water from run- ning into the said tunnel, and so to the mill. At the trial, it appeared that the tunnel was made in the defendant's land, and fixed into the ground with stone-work ; that the defendant agreed for a guinea to let the plaintiff lay the tunnel, for the purpose of conveying the water to the mill ; that defendant even assisted at the making of the tunnel, * 24 under the plaintiff's directions ; but no conveyance was * made of the land to the plaintiff; the guinea was afterwards tendered to the defendant, but he refused to receive it, or to give his assent to the continuance of the tun- nel, and made the obstruction complained of. A verdict having passed for the plaintiff, with leave to move or enter a nonsuit, in opposition to a rule obtained for this purpose, it was contended " that it was sufficient for the plaintiff, against a wrong doer, to declare upon bis possession of the mill with the appurtenants ;" but Lord Ellenboi-oiigh said, " Such an allegation could not be sustained without showing that the appurtenants were legally such. Now here tJie title to have the water Jiowing in the tunnel over the defendant's land (a) 4 East, 107. BY EXPRESS AGREEMENT. 17 Fentiman v. Smith. Taylor v. Waters. could not pass, hy parol license, without deal, and the plaintiff could not be en- titled. to it, as stated in the declaration, by reason of bis possession of the mill ; but he had it by the license of the defendant, or l)y contract with him ; and if by license, it was revocable at any time. The enjoyment, with the defend- ant's assent, was not left as evidence to the jury to presume a grant, but it was supposed that it gave a title in point of law, which it clearly did not." This case is not only clear and positive in its language, but it derives addi- tional importance as showing the construction that ought to be j)iit upon any ambiguitj^ of language occurring in a subsequent decision of tlie same learned judge in Winter V. Brockwell ; as it can hardly be supposed, that if he had changed his opinion, and adopted a view quite contrary to that previously ex- ])resseil by him, he would not have made some allusion to the case in which he had before given such a decided opinion. The principal authority in support of the position — that a parol license, when executed, can pass an incorporeal* hereditament — is the case *25 of Taylor v. Waters [a). Gibbs, C. J., in delivering the judgment of the court in that case, said, " This was an action again.st the doorkeeper of the 0[)era House, for denying admission to the plaintiff, who was the holder of a silver ticket, purporting to give him an entrance into that theatre for twenty-one years. It was objected, that the right claimed was an interest in land, and being for more than three years, could not pass without a writing signed by the party, or his agent authorized in writing, and that W. Taylor was not so authorized by the trustees. And it was further insisted by the defendant, that such an interest could only pass by deed." " The answer given to these objections was, that this was not an interest in land, but a license irrevocable to permit the plaintiff to enjoy certain privileges thereon, and was not requir- ed to be in writing by the Statute of Frauds, though it extended beyond the term of three years, and, consequently, might be granted without a deed ; and although W. Taylor had affected to grant this by deed, it may bind the trus- tees not as their deed, but as a license authorized by them. In support of this doctrine, the following cases are found : — Jf'ebb v. Paternoster {b), license to the plaintiff from Sir W. Plumrner to lay a stack of hay on his land for a reasonable time ; afterwards Sir W. Plumrner leased the land, and the lessee turned in his cattle and ate the hay, for which this action was brought. The court held that such license was good, and could not be countermanded with- in a reasonable time; but that * more than a reasonable titne had * 26 elapsed, half-a-year, and therefore the license was at an end. This case was recognized and acted ujion by Lord Ellenborough and the Court of King's Bench in Winter v. Brockwell (c). Ttiis shows that a beneficial license, to be exercised upon land, may be granted without deed, and cannot be counter- («) 7 Taunt. 364. (b) Palm. 71 ; S. C. 2 Ro. Rep. 152 : Poph. 151. (c) 8 East, 308. 3 18 ACQUISITION OF EASEMENTS Taylor v. Waters. Hewlins v. Shippam. manded, at least after it has been acted upon ; and this would, also, be suffi- cient to show that this is not such an interest in land as, by the statute of frauds, can only pass by writing; but if any doubt remained upon the latter point, it has been long ago exjjressly decided by tlie Court of King's Bench in the case of fVood v. Lake (a), better reported in a MSS. book of Mr. Justice Burrough, p. 36. — ' License to stack coals on the defendant's close for seven years cannot be revoked at tlie end of three.' These cases abundantly prove that a license to enjoy a beneficial privilege on land may be granted without deed, and, notwithstanding tlie statute of frauds, without writing. What the plaintiff claims is a license of this description, and not an interest in the land. That it was in the ordinary course of management, to make such grants, ap- pears from the plaintiff not having been disturbed by the trustees while they had possession for some years, at least in and after 1800. He is, therefore, entitled to exercise the license granted to him, and may maintain the present action against the defendant, who has disturbed him in it." Assuming the right here claimed by the plaintiff to be an easement, it must be conceded that this case would be a direct authority for the position that an 27* * easement may be created by parol ; it does not, however, rest on the foundation of any previous decision, except that in Sayer ; the case of Webb v. Paternoster is in reality a mere dictum, as the court was not called upon to decide the question as to the validity of the license ; and the case of Winter v. BrockweU, on which the Chief Justice seems principally to rely, is clearly no authority for the position it is here cited to suppoi-t, as is shown by several subsequent cases, in which the judgment of Lord Ellenborough has been fully considered {b). Thus, comparatively unsupported by any earlier authority, it is directly at variance with numerous recent decisions, in two of which the question has been most elaborately discussed. In the case of Heiclins v. Shippam (c), for a valuable consideration given by the plaintiff to the defendant, he assented to the plaintiff's making a drain at his own expense in his (the defendant's) land. The plaintiff made his drain at a considerable expense. In an action brought against the defendant for afterwards sto{>ping up the drain, Graham, B., was of opinion that the rights claimed under the license granted by the defendant to have the drain in the soil of another, was an uncertain interest in the land, within the first section of the Statute of Frauds ; and not being granted by any instrument in writing, the plaintiff acquired under it a right at will only, which was determined by the defendant's stopping up the drain. He therefore 'directed a nonsuit, with leave to the plaintiff to move to enter a verdict. (a) Sayer, 3. (6) Heiclins v. Shippam, Liggins v. Inge, Cocker v. Cooper. (c) 5 B, & Cr. 221 ; S. «fe C. 7 D. &- R. 783. BY EXPRESS AGREEMENT. 19 Hewlins v. Shippam. *A rule l)aving been obtained to set aside the non-snit, the court *28 upon arginnent discharged it. The elaborate judgment of the court, in which all the authorities are reviewed, was delivered by Bayley, J. "A right of way or a right of passage for water," said the learned Judge, "(where it does not create an interest in the land), is an incorporeal right, and stands upon the same footing with other incorporeal rights, such as rights of connnon, rents, advowsons, &c. It lies not in livery but in grant, and a freehold interest in it cannot be created or passed (even if a chattel interest may, which I think it cannot), otherwise than by deed. Terms de la Ley, a book of great antiquity and accuracy, defines an easement to be a privilege that one neighbor hath of another by charter or prescription, without profit ; and it instances, 'as a way or sink through his land, or such like.' In Co. Lilt 9. a., Lord Coke distin- guishes between corporeal things which lie in livery, and incorporeal which in grant, and cannot pass but by deed, as advowsons, commons, and it seems to be his oijinion, that (except in certain specified cases), where livery is necessary as to the one, a deed is necessary as to the other. The same may be collect- ed from the passage already cited from Co. Litl. 42. a. In Co. Lilt. J 69, the excepted case of parceners is mentioned, and there it is said, that though the connnon of estovers or pasture, or a corody, or a way lie in grant, they may, upon partition between the parceners, be granted without deed. So both Liitlt- ton and Lord Coke state, in the same part, that a rent may he granted in the case of parceners for owelty of partition without deed ; and Lord Coke noti- ces* that rents, commons, advowsons, and the like, that liq in grant, * 29 though they cannot pass witiiout deed, may be divided between parceners by parol witiiout deed. Chattels, whether real or personal, may in general be granted without deed ; Shepherd^s Touchstone, 232 ; and in tiie case of things lying in livery, a demise thereof may be made for any ninnber of years at common law without deed ; but Lord Coke, in Co. Litl. 85. a., makes a dis- tinction between original chattels and chattels created out of a freehold lying in grant, that the former may pass without deed, the latter cannot be created or pass without it; and whether there is a distinction in this respect between chattel interests created out of freeholds lying in livery and freeholds lying in grant (which I think there is notj, it is not necessary to decide, because this is the case of a freehold, not of a chattel interest. Shepherd, in his Touchst. 231, lays it down, that a license or liberty (amongst other things) cannot be created and annexed to an estate of inheritance or freehold without deed. In 2 RoWs Mr. 62, it is laid down that a thing lying merely in grant cannot pass without deed. In 9 Co. 9, it is saids arguendo, that tenant for life cannot hy word with- Old. deed have the i)rivilege of being dispunishable for waste ; and tha'c position is adojited in Shepherd, Touchst. p. 2.31. In GilberVs Law of Evidence, p. 96-, 6th edition, this is laid down : ' If a man shews title to a thing lying in grant, he fails if the seal be torn off from his deed ; for a man cannot show a title to a thing lying in solenm agreement, but by solemn agreement ; and there can be no solemn agreement without a seal, so that possession alone is not sufficient, 20 ACQUISITION OF EASEMENTS Hewlins v. Shippam. *30 * since tlie thing itself does not lie in possession i)Ut in agreement; therefore a man caiuiot claim a title to a watercourse but hij deed, and under seed. Bolton v. The Bishop of Carlisle (a) is at variance with the position 1 lid down by Lord Chief Baron Gilbert, that the party fails if tlve seal be lorn off the deed. It was decided in that case, that, if the deed be destroyed, other evi- dence may be given to show that the thing was once granted. The general position, however, that a man cannot claim title to a thing lying in grant, but by deed, was not questioned in that case. In Monk v. Butler (b), where the plaintiff in replevin answered an avowry for damage feasant by a plea of li- cense from a commoner who had right for twenty beasts, it was objected, that, if the commoner could license, he could not do so without deed ; and of that opinion was the whole Court. In Rimisey v. Raivson (c) the objection to such a license on the account of its not being stated to be by deed, after verdict for the plaintiff on a collateral issue, was overruled, because the license was only to take the profit unica vice, and because no estate passed by it. Yet in a sub- sequent case of Iloskins v. Robins [d) a similar objection was overruled, not on the ground that a parol license would be sufficient, but on the ground that the objection to the mode of pleading the license was waived by an issue on a collateral point, and that after verdict on such issue it must be taken that the license was by deed ; but, according to the report in Saunders, Hale, C. J., / *31 and * the Court, seemed to be of opinion that the license could not be granted without deed. In Harrison v. Parker (e), where liberty and license, power and authority were granted to the plaintiff and his heirs to build a bridge across a river, from plaintiff's close to a close of Sir George Warren, and liberty and license to plaintiff to lay the foundations of one end on Sir GJ's close, the grant was by deed. And in Fentiman v. Smith (f), where the plaintiff claimed to have passage for water by a tunnel over defendant's land, Lord Ellenborough, lays it down distinctly : ' The title to have the water flow- in the tunuel over defendant's land could not pass by parol license without deed.' Upon these authorities we are of opinion, that although a parol li- cense might be an excuse for a trespass till such license were countermanded, that a right and title to have ])assage for the water, for a freehold interest, re- quired a deed to create it; and that, as there has been no deed in this case, the i)resent action, which is founded on a right and title, cannot be supported. The case of Winter v. Brockwell, [b] which was relied upon on the part of the plaintiff, appears clearly distinguishable from the present. All that the defendant there did, he did iipon his own land. He clainied no right of easement upon the plaintiff's. The plaintiff claimed a right and ease- ment against him, viz. the privilege of light and air through a parlor win- (a) 2 H. Bl. 259. (b) Cro. Jac. 574. (c) 1 Vent. 18—25. (d) 2 Vent. 123—163; 2 Saund. 327. (e) 4 East, 107. (f) 8 East, 309. BY EXPRESS AGREEMENT. 21 Hewlins v. Shippam. dow, and a free passage for the smells of an adjoining house through defenihinl's area; and the only point decitled tliere was, that, as the ]:)laintiff had consent- ed to the obstruction of such his casement, and had allowed the defendant to * incur expense in making such obstruction, he could not retract that *32 consent without reimbursing the defendant that expense. But that was not the case of the grant of an easement to he exercised upon the grantor's land, but a permission to the grantee to use his own land in a way in which, but for an easement of the plaintiff's, such grantee would have had a clear right to use it. JVehb v. Paternoster (af, Wood v. Lake (h\ and Tar/lor v. Waters (c), were not cases of freehold interest, and in none of them was the objection ta- ken that the right lay in grant, and therefore coidd not pass without deed. These, therefore, cannot be considered .is authorities upon the point : and on these grounds, therefore — that the right claimed by the declaration is a free- hold rigiit ; and that, if the thing claimed is to be considered as an easement, not an interest in the land, such a right camiot be created without deed — w^e are of 0|)inion that the nonsuit was right, and that the rule ought to be dis- charged." In Bryan v. Whistler (d) the right to be buried in a particular vault was held to be an easement capable of being created by deed only ; and therefore a pa rol agreement not under seal was held to confer no right, though the plaintiff had paid a valuable consideration on the faith of its validity. (3) (a) Palm. 71 ; S. C. 2 Roll. Rep. 152, Poph ; 151. (b) Sa3'er, 3. (c) 7 Taunt. 374. {d) 3 B. «fc Cr -298 ; S. C. 2 Man. & Ry. 318. ("i) Licenses to do a particular act. — The case of Prince v. Case., 10 Conn. R. 375 decides, that a verbal license by an owner of land, to another to build a house on - such land, gives no right to the land. Such a license is a mere personal privilege, and does not extend to his heirs or assigns. The rule is, that " a license does not extend but to him to whom it is given, and cannot be granted over. The King V. JVeicton, Bridg. 115. Hoioes v. Ball, 7 Barn. & Cres, 481. In the case of Jack- son d. Htdl V. Bubcock, 4 J. R. 418, where one G. gave a license in writing to one H. to build a house about the pool at N. H., and occupied it during his necessity or pleasure, and H. built a small house, and occupied it 17 years, and then sold it to one C. Held, that H. had only a personal license to inhabit. In Prince v. Case, supra. The Court say : " The plaintifF claims, that by putting the house upon tlie land of Case, by his consent. Prince remained the owner of it, with a right to have it remain there. It has been decided in Massachusetts and Maine, that the house or other building remains the property of him who placed it there, and is personal property in him. Wells v. Bannister, 4 Mass. Rep. 514. Marcey v. Darling, 8 Fick. 283. Ashmund v. Williams, 8 Pick. 402. 404. Curry v. Com. Ins. Co., 10 Pick. 540. Ricker v. Kelly, 1 Greenl. 117. In these states, it will be remembered, that they have no court of chancery with ordinary chancery 22 ACQUISITION OF EASEMENTS Bradley v. Gill. - Brown v. Windsor. In an old case, which does not appear to have been adverted to in more re- cent decisions, it was held that a parol license could not confer an easement to carry on a noisy trade. * In Bradley v. Gill (a), the ])laintifr brought an action on the case *33 for a nuisance occasioned by the recent erection of a smith's forge and shop, so near to the plaintiff's house, that the plaintiff and his family were disturb- ed by the noise of the defendant's business. The defendant pleaded that he had carried on the trade of a blacksmith for twenty years, and that the i)laiiitiff advised him to come and live in the said house and carry on his trade there, by reason whereof he came to tlie said house and built there a convenient room to erect a smith's forge, traversing the erection of any other smith's shop. (a) 1 Lutw. 70. powers. This court, however, in Benedict v. Benedict, 5 Day, 464. 4G7. seem to have adopted the ancient common law doctrine, that a fixed and permanant build- ing erected upon another's land, even by his license, became his property ; but if, in its nature and structure, it was capable of being- removed, and a removal was contemplated by the parties, it was personal estate in the builder ; and where the license was improperly revoked, resort must be had to a court of chancery. As the defendant in this case has not claimed the property in the building to be his, but has taken it down, and left the materials for the owner, it does not seem to be necessary for us to inquire whether the doctrine held in Massachusetts, or that ad- opted by a majority of this court in the case above cited ; is correct. We need only inquire whether the plaintiff had a right to this building, the defendant was justifiable, under the circumstances of the case, in taking it down ; in other words, whether the license to build, by Dudley Ca^e, gave a right to Prince and his heirs and assigns, to keep this house in that place. Was it an interest assignable, trans- missible to heirs, and liable to be requested for his debts ? The plaintiff takes the afRrmative of this proposition. He says, it is a license executed, and tlierefore irrevocable. As a general rule, that proposition is cor- rect. But it cannot be true, when some other principle of law is to be violated, by such a construction. Thus, if a man authorize another to take away a certain dam, by which his land is flooded, and it is done, no attempt to revoke or alter its effect can be available. But it does not follow from this, that if a license was given to erect the dam on the land of another, and continue it there forever, the license to continue it would be irrevocaljle. If it did, it would be in the face of the statute which requires all conveyances of an interest in lands to be in writing. For a license, by which this dam could be continued in this place foi-ever, would be as effectual in that case as a deed for the same purpose ; and no case has been cited that goes this length. In IVeh v. Paternoster, Palm. 71. where license was given to put a stack of hay upon land, it was held that it could not be countermand- ed, until after a reasonable time had elapsed. This was, however, before the statute of frauds. In Winter v. BrockwcU, 8 East, 308, where Lord Ellenborough recognized this principle, the plaintiff permitted the defendant to create a sky- H BV EXPRESS AGREEMENT. 23 Brown v. Windsor. Liggins v. Inggins. The opinion of tlie coint was, tliat the action lay, and that the plea was no answer to the declaration, and that the traverse was idle; but the defendant, by consent, had lil)erty to amend his plea. In Brown v. Windsor (a) the action was brought for withdrawing support from the plaintiff's house ; the evidence of right to the support claimed con- sisted in proof of a parol j)ermission on the part of the then owner of the de- fendant's proi)erty to the plaintiff, to rest his building on a pine end wall stand- ing thereon ; under this permission the support had been enjoyed for 26 years. The plaintiff recovered ; and it was afterwards objected that there could not be, by law, such an easement as tlie right to support for a house in alicno solo ; but supposing tluit such an casement could be acquired, no objeciion what- ever was made to the mode of its acquisition ; nor was any question raised as to whether an enjoyment, commencing under a license, would confer an ease- ment. The decision of the court cannot, therefore, be considered as an author- ity * upon this subject; nor does it appear to have ever been treated * 34 as sucli in the later decisions of the courts upon this point. In Liggins v. Inge (b) it appeared that tlie predecessor of the plaintiff, who was entitled to a flow of water to his mill, over the defendants' land, by a pa- fa; ] Cr. & J. 20. (b) 7 Bing. 682; S. C. 5 M. &- P. 7J2. light over his own premises,. through which the plaintiff claimed a right to air and light; and Lord Ellenborough held, that it was not countermanded, at least with- out placing the party in the situation in which he was before. In Taylor v. Waters^ 7 Taun. 374. it was held, that a ticket to the defendant and his assignees, for twen- ty-one years, to visit the theatre, was not on interest in lands within the statute ; and a case is there cited, (Wood v. Lake, Sayer 3. S. C. Burrough's MSS. p. 36.) that a license to stack coals on land for seven years, cannot be revoked in three. The case of Liggins v. Inge, 7 Bingh, 682. was also cited. The parties were both mill-owners on the same stream. The defendant cut down a bank on his own land and erected a weir, by consent of the plaintiff's father, by which the water was diverted from the plaintiff's mill. Finding an injury to result, notice was given to the defendant to raise the bank as before, and a suit was brought. The court held, that as the plaintiff's father had in effect consented to this diversion of the water, he must be considered as having abandoned his right to have the water flow in that course, and could not complain. In these cases, it was held, that no interest was conveyed in the land ; and in the last case, the court intimate a very decided opinion, that if that was attempted, the conveyance would be void. In one case, it is said, that Lord Mansfield ruled, that if a man stood by, and saw another build on his land, he could not sustain an action of ejectment. 5 Term Rep. 556. This, however, has been sanctioned, it is believed, by no other judge. In Matts V. Hatckins, 5 Taunt. 23. Gibbs, J. doubted it ; and it was holden, by the court of King's Bench, that where a license was granted to erect a cottage, on land of the Lord, and it was actually erected, this was not a license, but a grant which might be recalled immediately, a mere permission to occupy. The Jifmg v. 24 ACaUISITION OF EASEMENTS Liggins V. Inge. rol license, iuitlioriscJ the tlefemlaiits to cut down and lower a bank, and to erect a weir upon tlicir own land, tlic eftect of wliicli was to divert into anoth- er channel the water wliich was requisite for the working of the plaintiff's mill ; subsequently, the plaintiff complained to the defendants of the injurious effects of the weir, and called upon tiieni to restore the bank to its ancient height, and to remove the weir ; and, uj)on a refusal on the part of the defendants to do this, an action was brought. Tindal, C. J., in his judgment enters fully into the question of the validity of jjarol licenses : — " It will be unnecessary, on the present occasion, to consider more than one of the questions which have been argued at the bar, viz. whether the present action, upon the facts stated in the award of tlie arbitrator, is maintainable against the defendants. " The action is, in point of form, an action of tort, and charges the defend- ants with wrongfully continuing a certain weir or fletcher, which the defend- ants had before erected upon one of tlie banks of the river, and by that means wrongfully continmng tlie diversion of the water, and preventing it from flow- ing to the plaintiff 's mill in the manner it had been formerly accustomed to do. It appeared in evidence before the arbitrator, tiiat the bank of" the river which Horndon-on-the-h\\\, 4 Mau. & Selw. 562. And we know it is every day's prac- tice, in such cases, to resort to a court of equity for redress, which would be en- tirely unnecessary, if Lord Mansfield's opinion was considered as law. And in the case of Benedict v. Benedict, 5 Day 469. Judge Swift says, in such case the only remedy of the purchaser is in equity. This subject is treated by Parker, Ch. J., in the case of Cook v. Stearns, 11 Mass. Rep. 533,538. in a most satisfactory manner. "Licenses to do a particular act," says he, " do not, in any degree, trench upon the policy of the law, which re- quires that bargains respecting the tittle or interest in real estate shall be by deed or in writing. They amount to nothing more than an excuse for the act, which would otherwise be a trespass. But a permanant right to hold another's land, for a particular purpose, and to enter upon it, at all times, without his consent, is an important interest, which ought not to pass without writing, and is the very ob- ject provided for by the statute." Mr. Ch. J. Williams concludes his Judgment of the court in Prince v. Case supra, by saying : — " Here, Prince, the father, not only sold to the plaintiff, but both he and Case are dead; and unless this is an interest assignable or transmissible to heirs, it is extinguished. If the right was then extinguished, perhaps no notice to remove the building was necessary. But if it was, the ejectment which has been brought, the recovery under it, and the possession taken, are sufficient notice that the defendant meant to resume his rights. More than a year after possession was taken under the ejectment had elapsed, and the plaintiff did not remove the build- ing. This surely was a reasonable time : and the defendant had as good a right to take away the building from his premises as in the case of Web v. Paternoster, be- fore cited, he had a right to turn his cattle into a field where he had allowed the plain- tiff to stack his hay, and a reasonable time had elapsed for him to take it away. Palm 71 BY EXPRESS AGREEMENT. 25 Liggins V. Inge. had been cut down, was the soil of the defendints, and that the same had beeu * cut down and lowered, and the weir erected, and the water thereby * 35 diverted by them, the defendants, and at their expense, in the year 1822, under a parol license to them given for that purpose by the plaintiff's father, the then owner of the mill; and that, in the year 1827, the plaintiff's father represent- ed to the defendants, that the lowering and cutting down tlie bank were inju- rious to him in the enjoyment of his mill, and had called upon them to restore the bank to its former state and condition, with which requisition the defend- ants had refused to comply. " The question, therefore, is, whether such non-compliance, and tlie keeping the weir in the same state after, and notwithstanding the countermand of the license, is such a wrong done on the part of the defendants as to make them liable to this action. "The argument on the part of the plaintiff has been, that such parol license is, in its nature, couutermandable at any time, at the pleasure of the party who gave it ; that, to hold otherwise, would be to allow to a parol license the effect of passing to the defendants a j)ernianent interest in part of the water which before ran to the plaintiff's mill ; which interest, at common law, could only pass by grant under seal, being an incor[)oreal hereditament, and which, at all " The remaining question is, has he done this in a reasonable and proper man- ner ? The house might have been worth more to the plaintiff, had it been remov- ed without taking it to pieces ; but the plaintiff had provided no place for it ; and surely the defendant was not bound to provide one, nor could he be bound to incur that expense. " It is not shown, that the defendant has been guilty of any wanton destruction of the property, or any unnecessary injury in taking it down. If not, and he had a right to remove it, it is not easy to see upon what principle he can be liable for any damages. Had he interfered with an attemi>t of the plaintiff to remove the building, a different question would have arisen. But as the plaintiff neglected, for so long a period, to make this attempt, the defendant was justified in removing it himself." Sale of grotcing crop, not within statute of frauds. In Sainshury v. Matthews, 4 M. «& W. 343, the defendant in June agreed to sell to the plaintiff the potatoes then growing on a certain quantity of land of the defendant, at 2s. per sack, the plaintiff to have them at digging up time (in October,) and to find diggers : Held, that this was not a contract for the sale of an interest in land, within the fourth section of the statute of frauds. Sainshury v. Mattheios, 4 M. & W. 343. A license to be exercised upon land, may be granted without writing ; it is not within the statute of frauds. Woodbury v. Parshley, 7 N. H. R. 237. Trespass Lease. — A temporary interest is sufficient to maintain an action of tres- pass, provided it is an exclusive interest. Thus, when an outgoing tenant, after the determination of his lease, has the right to enter upon the land to take away growing crops. Held, tha( this was not sufficient for him to maintain trespass against a succeeding tenant, who enters to seed the land, before the crop cornea to maturity. Dorsey v. Eagle, 7 G. & J. 321/ 4 26 ACQUISITION OF* EASEMENTS Liggins V. Inge. events, would be determinable at the will of the grantor, since the statute of frauds, as being "an interest in, to, or out of lands, tenements, and heredita- taehts." "If it were necessary to hold, that a riglit or interest in any part of the wa- ter, which before flowed to the plaintiff's mill, must be shown to have passed from the plaintiff's father to the defendants under the license, in order to jus- 36 tify the continuance of the weir in its * original state, the difficulty* above suggested would undoubtedly follow; for, it canntJt be denied, that the right to the flow of the water, formerly belonging to the owner of the j)lain- tiff 's mill, could only pass by grant, as an incorporeal hereditament, and not by a parol license. But we think the operation and effect of the license, after it has been completely executed by the defendants, is sufficient, without hold- ing it to convey any interest in the water, to relieve them from the burthen of restoring to its former state what has been done under the license, although such license is countermanded : and, consequently, that they are not liable to an action as wrongdoers, for persisting in such refusal. "The parol license, as it is stated in the award of the arbitrator, was a license to cut down and lower the bank, and to erect the weir. Strictly speaking, if the license was to be confined to those terms, it was at once unnecessary and inoperative ; for the soil being the property of the defendants, they would have the right to do both those acts without the consent of the owner of the lower mill. But as the diversion of part of the water which before flowed to that mill would be the necessary consequence of such acts, it must be taken, that the object and effect of such license was to give consent, on the part of the plain- tiff's father, to the diverting of the water by means of those alterations. We do not, however, consider the object, and still less the effect, of the parol li- cense, to be the transferring from the plaintiff's father to the defendants any right or interest whatever in the water which was before accustomed to flow to the lower mill, but simply to be an acknowledgment, on the part of the * 37 plaintiff's father, * that he wanted such water no longer for the pur- poses of his mill ; and that he gave back again and yielded up, so far as he was concel-ned, that quantity of water which found its way over the weir or fletch- er, which he then consented should be erected by the defendants. And we think, after h© has once clearly signified such relinquishment, whether by words or actsj and suffered other persons to act upon the faith of such relin- quishment, and to incur expense in doing the very act to which his consent was given, it is too late then to retract such consent, or to throw on those other persons the burthen, of restoring matters to their former state and condition. " Water flowing in a stream, it i-s well settled, by the law oi England, is pub- lid juris. By i\\e Roman law, running. water, light, and air, were considered as some of those things which had the name of res communes, and which were defined, " things, the property of which belong to no person, but the use to all." And, by the law of England, the person who first appropriates any part of the water flowing through his land to his own use, has the right to the use of so BY EXPRESS AGREEMENT. 27 iiiggins V. Inge. Cocker v. Cowper. much as he thus appropriates, against any other. Be'tley v. Shaw (a). And it seems consistent with the same principle, that the water, after it lias been so made subservient to private uses by appropriation, should again become publici juris by the mere act of relinquishment. There is nothing unreasonable in holding thai a right which is gained by occupancy should be lost by abandon- ment. Suppose a person who formerly had a mill upon a stream, should pull it down, and remove the works, with the intention never to return : could it be held * that the owner of other land adjoining the stream might not *38 erect a mill and employ the water so relinquished : or that he could be com-: pellable to pull down his mill, if the former mill owner should afterwards change his determination, and wish to rebuild his own ? In such a case, it wouhl undoubtedly be a subject of inquiry by a jury, whether he had com- pletely abandoned the use of the stream, or had left it for a temporary purpose only; but, that question being once determined, there seems no ground to con- tend that an action would be maintainable aga so that, after the same is countermanded, the party to whom it was granted may sustain a heavy loss. It ia a license to do something, that in its own nature * seetns intended to be permanent and continuing ; and it was the fault of *33, the party himself, if he meant to reserve the power of revoking such license, after :t was carried into effect, that he did not expressly reserve that right when lie granted the license, or limit it as to duration. Indeed, the person who au- thorizes the weir to be erected, becomes, in some sense, a party to the actual erection of it ; and cannot afterwards complain of the result of an act which he himself contributed to effect. "Upon principle, therefore, we think the license, in the present case, after- it was executed, was not countermandable by the person who gave it; and, consequently, that the present action cannot be maintained. And, upon au- thority, this case appears to be already decided by that of iVinter v. Brockivdh [b], which rests on the judgment in fVebb v. Paternoster (c). We see no reason (a) 6 East, 208. (b) 8 East, 308. (c) Pahner, 71 ; S. C. 2 Rol. Rep, 152 ; Poph. 151. 28 ACQUISITION OF EASEMENTS Cocker v. Cowper. Bridges v. Blanchard. Wallace v. Harrison. to doubt the authority of that case, confirmed, as it has since been, by the case of Taylor v. Waters [a) in this court, and recognized as law in the judgment of Mr. Justice Bayley in tlie case of Heivlins v. Shippam, in the Court of King's Bench. In Cocker v. Cowper the doctrine laid down in Hewlins v. Shippam was fully recognized (6). In that cate an action was brought for stopping up a water course. It appeared from the award of the arbitrator, that the channel ia question consisted of a drain and tunnel, wiiich had been constructed in the defendant's land by the plaintiff, in the year 1815, with the verbal consent of the then tenant and of the defendant, and that the water had flowed through * 40 it up to the year 18a3, when, * upon the plaintiff's refusal to pay for the use of the water, the defendant diverted the channel. The Court of Ex- chequer were clearly of opinion, that the plaintiff was not entitled to recover. ' With regard to the question of license," said the court, " the case of Hewlins V. Shippam is decisive to show that an easement, like this, cannot be conferred tmless by deed " (c). In Bridges v. Blanchard (d) this point was raised in argument, but not de- cided by the court, as it appeared that no license had, in fact, been given. In the recent case of fVallis v. Harrison 4" others (e) an action was brought by the reversioner, for digging up the soil and making embankments and a railway over land in the occupation of his tenant. The defendant, among other pleas, pleaded, " that before the close, in which &.C., became the plain- tiff's property, the Dean and Chaj)ter of Durham being seised in fee of the Baid close agreed with the defendants that they should have license, liberty, power, and authority to enter upon the said close, and to form, make, and maintain certain roads, &c. ; and that the said Dean and Chapter should ratify and confirm the same to the defendants ; and that before the plaintiff" had any interest in the said close, the said Dean and Chapter gave and delivered to the defendants at their request possession of the said way-leave, &c. over which the said roads now are, and at the said time when &c. had been con- structed, with leave, license, authority, and power, to the defendants to enter and set out the same ; whereupon, before &c., they entered and set out the same : " the plea then alleged an indenture by which the Dean and Cha[»ter * 41 " granted * and demised, and granted, ratified, and confirmed unto the defendants such full liberty, &c. ; and averred that the defendants, by virtue of such leave, &c. and such indenture, had made the road, and unavoidably committed the said trespasses." To this plea the plaintiff demurred, on the ground "that the right of making the road was a matter which lay in grant, and could only be conferred by deed and not by parol, and the deed mention- (o) 7 Taunt. 383 ; S. C. 2 Marsh. 560. (b) 1 Cr. M. & Ro3. 418. (c) See also Bryan v. Whistler, 8 B. «fc Cr. 298. (d) 1 Adol. «fe Ellis, 536. (e) 4 M. & W. 538. BY EXPRESS AGREEMENT. 29 Wallace v. Harrison. Result of authorities. ed in the plea, as it appeared on oyer, did not amount to a confirmation of any prior license by deed. The Court held tlie plea to be bad, as such a li- cense might be countermanded at any time by the owner of the land who granted it, and at all events could not be binding on his transferee. Lord Abinger,C. B., said, in delivering judgment, "Then, treating it as a plea of license, I think it is bad orr-general demurrer, because a mere parol license to enjoy an easement on the land of another does not bind the grantor, after he has transferred his interest and possession in the land to a third per- son. I never heard it supposed, that if a man out of kindness to a neighbor allows him to pass over his land, the transferee of that land is bound to do so likewise. But it is said that the defendant should have had notice of the transfer. This is new law to me. A person is bound to know who is the owner of the land upon which he does that which, prima facie, is a trespass. Even if this were not so, I think the defendants ought, in excuse of their tres- pass, to have pleaded the fact that they had no notice of the transfer. It is true it would be the assertion of a negative, but I think this would be one of those cases where, to make a title or excuse good, a negative should be shown on the pleadings, even if the proof of the * affirmative might be on * 42 the opposite party. As to the case of fVebb v. Paternoster, the grant of the li- cense to put the haystack on the premises was in fact a grant of the occupa- tion by the haystack, and the party might be considered in possession of that part of the land which the haystack occupied, and that might be granted by parol." And Parke, Baron, added, " Then, with regard to the license, the plea is bad in substance. We are not called upon in this case to consider, whether a license to create or make a railroad, granted by a former owner of the soil, is countermandable after expense has been incurred by the licensee, which was the question in Winter v. Brockwell ; for it is not alleged that there has been any expense incurred in consequence of the license, and therefore it remains executory ; and 1 take it to be clear, that a parol executory license is countermandable at any time ; and if the owner of land grants to another a li- cense to go over or do any act upon his close, and then conveys away that close, there is an end to the license ; for it is an authority only with respect to the soil of the grantor; and if the close ceases to be his soil, the authority is instantly gone. Webb v. Paternoster is very distinguishable from this case, for there the license was executed, by putting the stack of hay on the land ; the plaintiffs there had a sort of interest against the licensor and his assigns ; but a license executory is a simple authority excusing trespasses on the close of the grantor, as long as it is his, and the license is qncountermanded, but ceas- es the moment the property passes to another." The result of the decided cases appears to be this — that a roan may, in some cases, by parol license, * relinquish a right which he has acquired in *43 addition to the ordinary rights of property, and thus restore his own and his neighbor's property to their original and natural condition ; but he cannot, by 30 ACQUISITION OF EASEMENTS Result of authorities. such means, impose any burthen upon land in derogation of such ordinary rights of property — as, for instance, a parol license will he valid for huilding a wall in front of his ancient windows, while a similar permission to turn a spout on his land from a neighhoring house will he invalid and revocable ; but it should seem, in order that a parol license should have this efll-ct, the act licensed should be executed, and the necessary consequence of such exe- cution should be, per se, the exliugiiishnicnt of the right ; for the cases do not appear to furnish any authority for saying, that where the extinguishment of an easement would depend upon a repetition of the licensed acts, a parol li- cense would be sufficient to effect it ; and, indeed, whore the acts from their nature lie in repetition, such license could not be executed. As to the case of Taylor v. Waters, not only are its general positions over- I'uled by the more recent decisions of Hewlins v. Shlppam and Cocker v. Cowper, but it is in itself open to the gbjection of depending upon t,he two cases al- ready adverted to, and on a total misconception of the case of Winter v. Brock- well. Gibbs, C. J. evidently overlooks the important distinction between a li- cense to do a thing upon a man's own land and a license to do something on the land of the licenser : the latter was the case then before him ; whereas Winter v. Brockwell was the former. " Winter v. Brockwell" said Bayley, J., in delivering the judgment of the *44 court in Hewlins v. Shippam, " was * not the case of tiio grant of an easement to be exercised upon the grantor's land, but a permission to the grantee to use his own land in a way in which, but for an eas^m(;nt of the plain- tij^'s, such grantee would have had a cl,ear right to use it." The whole current of decisions is in favor of the view here taken, with the exception of Taylor v. Waters, and the earlier cases of Webb v. Paternoster and ff^ood V. Lake, relied upon by the C. J. Gibbs in his judgment. In Webb v. Paternoster a parol license had b^en given to the plaintiff to lay a stack of hay on the land of the defendant's lessee for a reasonable time ; the lessee turned his cattle upon the land, and for tJiis the action was brought. The decision of the court in favor of the defendant went on the ground, that a reasonable time had expired ; and the observations of the court were, consequently, alto- gether extrajudicial. In Wood v. Lake a parol license was given to stack coals on defendant's land for seven years, and the Court of King's Bench held that such license could not be revoked at the end of three years. It seems impos- sible to reconcile either the dictum in Webb v. Paternoster or the decision of the court in Wood v. Lake, with the more recent decision of the Court of King's Bench in The King v. Horndon on the Hill (a), in which a settlement was claimed in respect of a cottage built on the waste of the manor by the parol license of the lord. It was there urged in argument, " that it was ub- reasonable, that, after a party has been led to incur expense in consequence of having obtained a license from another, that the other shoujd be permitted («) 4 M. & Sel. 562. BY EXPRESS AGREEMEN'r. 31 Result of authorities. Concordance of civil law. Mode of granting. to recall liis license, and treat him as a trespasser ;* for which reason * 45 it was laid down, tliat a license executed is not countermandable, but only when it is executory." But Lord Ellenborongh said, "A license is not a grant, but may be recalled immediately ; and so might this license the day after it was granted." But, indeed, authority is hardly necessary to countervail these two cases, as in neither, as was observed by the Court of King's Bench in Hewlins v. Shtp- pam, does it appear that the objection was taken — that the right lay in grant, and therefore coidd not pass without deed ; in addition to which it may be observed, that the case in Sayer is of doubtful authority (a). Mr. Starkie {b) ob- serves, " that the interest conferred in this case amounted to a lease, inas- much as the party was to have the sole use of that part of tlie close ou which he was to stack his coals." In frallis v. Harrison Mr. Baron Park.e adverted to Tfmter v. Brockwell as an authority for the position, that "where a license has been executed, and ex- pense incurred by the licensee in so doing, it would not be countermandable, although the easement was to be enjoyed in the land of the licenser:" a po- sition which, as already seen, that case does not support. This point was not ju- dicially before the court in Wallisv. Harrison; nor were the cases of Hewlins, V. Shippam and Cocker v. Coivper alluded to; in both of which the license was held to be revocable, although it had been executed, and expense incurred by the licensee, acting under the express permission of the owner of the soil. * This doctrine, that an easement may be extinguished by an executed *46 authority to a man to do an act ou^iis own land, the necessary consequence of which will be such extinguishment, coincides with the provision of the civil law: — "If I have the right of discharging my eaves' droppings into your area, and I authorize you to build in this area, I lose my right of discharge ; and so, if I have a right of way over your property, and I authorize you to do any thing in the place over which my right of way exists, I lose my right of way." {c) Sect. 2 — Construction of Instruments. Easements may be granted either separately, and apart from any convey- ance of the dominant tenement, or they maybe included in a conveyance of it. But few cases are to be found in the books of a grant of an easement, per C«;Sugden's Vend. &. P. 80, 9th ed. (h) Evid. vol. 2, p- 342, n. f. (c) Si stillicidii immittendi jus habeam in aream tnam, et permisero jus tibi in ea area aedificandi, stillicidii immittendi jus amitto ; et similiter si per tuum fun- dum via mihi debeatur, et permisero tibi in eo loco per quem via mihi debetur, al- iquid facere, amitto jus viae. — L. 8. fF. Quem serv. amit. 33 ACQUISITION OF EASEMENTS Covenants running with land. Tenements pass with their attendant Easements. se ; it is obvious, however, that, in all instances of this kind, the precise words of the instrument itself must determine the extent of the right created. A covenant, or other instrument under seal, clearly evincing the intention of the parties, may operate as a grant (a). So a man may claim a way by grant, as if A. grants that B. shall have a way through his close {b), * 47 * Easements, in general, bear a strong resemblance to covenants running with the land, both express and implied. Upon a grant or covenant conferring an easement, the successive owners of the dominant estate, who, in the case of an ordinary covenant, would, at com- mon law, be strangers to the contract, become entitled to the benefit of the rights conferred, and may sue for a violation of them. Where the dominant tenement itself is conveyed, whether in fee or for any less estate, it should seem that all rights which the conveying party enjoyed, by virtue of, and as appendant to, his estate, as against third parties, pass with it (c). Questions of greater difficulty arise where there has been a unity of owner- ship, and where, consequently, all easements have been merged in the general rights of property {d). Where such easements are in their nature continuous and apparent, they pass upon a severance of the tenements, by implication of law, without any words of new grant or conveyance (e). The same observation applies to easements, commonly called "of neces- 8ity"(/). Other easements, such as ordinary rights of way, will not pass upon a sev- * 48 erance of the tenements, unless * the owner " uses language to show that he intended to create the easement de novo" [g). General words, such as "appertaining, belonging," &c., have been held in numerous instances, both with regard to rights of common and way, to be insufficient to pass the right upon a severance of the tenements : but a con- veyance, containing the words, " used, occupied, and enjoyed," has been held to be sufficient [h). (a) Holmes v. Seller, 3 Levinz, 305. (b) Com. Dig. Chimin. D. (3) ; see, also, Senhouse v. Christian, 1 T. R. 560; Gerard v. Cooke, 2 Bos. & Pul. N. R. 109. (c) 11 H 6. 22. pi. 19 ; 2 Rolle Abr. 60, pi. 1 ; Beandely v. Brook, Cro. Jac. 189 ; Fentiman v. Smith, 4 East, 107. (d) Morris v. Edgington, 3 Taunt. 24. (e) This subject will be further considered in Chapter 3, § 2. (/) Post. (g) Per Bayley, B., in Barlow v. Rhodes, 1 Cr. & Mee. 448. (A) Bradshaw v. Eyre, Cro. Eliz. 570 : Worledg v. Kingwil, Id. 794 : Grymes v. Peacock, 1 Bulstrode, 17. Saundcys v. Oliff, Moore, 467: Staple v. Haydon,6 BY EXPRESS AGREEMENT. 33 What words sufficient. Itxlecd, tliuse words are as niucli a description of tlie thing granted, as if tJie way had been set out by its termini ; in either case, it would be a matter to be ascertained by parol evidence, wliat was com])rised by the descrip- tion (a) (4). Mod. 1 : iriialley v. Thompson, 1 Bos. & P. 371 : Ctemcnts v. Lambert, 1 Taunt. 205 : KooysUa v. Lucas, 5 B. &- Aid. 8;^ : Harding v. Wilson, 2 B. «fc Cr. 100; S. C. 3 D. & B. 287 ; Barlow v. Rhode i:, 1 Cr. & Mee. 439 ; Plant v. James, 5 B. & Adol. 701 ; S. C. 2 Nev. &. Man. 517. («) Phillips ct Amos on Evidence, 8tli ed. 732. (4) Boundaries. — It has been said in reference to boundaries on the highway, that if land is conveyed, bounded on a liighway, the soil and freehold to the centre of the highway will pass. 3 K. Coin. 34!». But this is denied in 11 Pick. 213. The appropriation of private property for public uses is in violation of natural right; consequently the power of the legislature is limited to the public necessity, and cannot appropriate private property to private use. 11 Wend. 149. The right of passage over a highway is but a servitude or easement ; and tres- pass lies for any exclusive appropriation of the soil. Gidneij v. Earl, 12 Wend. 98. A grant of land situated east and north of a particular stream of water, was held to fix the boundary at the centre of the stream; the grantor owning the land through which the stream flowed. Morrison v. Keen, 3 Greenl. 474. A corporation which has a charter for the erection of atoll-bridge across a river, have only an easement in the larid upon which the bridge stands ; consequently have no right to take land at the side of the bridge for a toll house. 5 Greenl. 62. Grant tcith appurtenances. — Under the grant of a thing, whatever is parcel of it, or of the essence of it, or necessafy to its beneficial use and enjoyment, or in common intendment is included in it, passes to the grantee. In common sense and in legal interpri'tation, a mill does not mean merely the building, in which the business is carried on, but includes the site, dam, and other things annexed to the freehold, necessary for its beneficial enjoyment. It was therefore held, in the case of Whitney y. Olrley, 3 Mason, 280, where a testator by his will in devising his estate to his children C. C. Ohley arid N. Olfley says, — " Excepting the Brown George paper-mill and appurtenances." — atddiiig : — " Further it is my will, that my said sons, Christopher arid Nathaniel, shall have and possess my two paper-mills, namely, the Rising Sun and the Brown George, so called ; and I devise the same to them as tenants in common in equal shares during the times of their natural life, together with all the machinery and appurtenances to said mills at the time of my decease." The question was what passed by the devise of a moiety of the Brown George paper-mill. The Court held, that the land under the mill and adjacent thereto, so far as necessary to its use, and conuuonly used with it passed by force of the word " mill." Story, J. My opinion is, that by the devise of the mill and its appurtenances all the land under the mill, and necessary for the use of it, and commonly used with it, passed to the devisees. The exception of the Brown George paper-mill and appurtenances, in the devise to Nathaniel G. Olney, is not an exception of the mere .building, but of the land under and appertaining to, and 5 34 ACQUISITION OF EASEMENTS Grant with appurtenances. used with, the mill. Whatever was saved by tlie exception, passed by the subse- quent devise of the mill. I do not proceed upon the ground, that tiie land was a mere appurtenance to the mill ; but that it was parcel thereof. It is true, that land cannot strictly be appurtenant to land so as to pass under the term " appur- tenances : 1. But where the intention is clearly expressed, that land should pass under that name, the law will give effect to the grant, notwithstanding the misno- mer. Thus, where it was averred in pleading, that certain land was appertaining to a messuage ; the court held, that in point of law it could not be appurtenant to the messuage ; but that it was nevertheless well in a grant, because it shall be in- tended to mean such land as is usually occupied with the messuage or lying with the messuage ; and therefore a demise of a messuage " with the lands to the same appertaining," is good to pass such lands as were usually occupied, used, or lying with the messuage. 2. If this be so in grant, the law will construe the words still more favorably in a devise. Therefore in Boocher v. Samford (Cro. Eliz. 113), it was held, that lands usually occupied with a house, though at a distance from it, might well pass by a devise of it, as a tenement with its appurtenances, in which H. dwelleth in E. 3. in these cases the lands pass, not as appurtenances, but as parcel of the granted or devised premises, upon the intention of the parties col- lected from the instrument, and explained by reference to tiie facts. " But in the present case I lay no stress whatsoever upon the words in the de- vise, " with tjie appurtenances." The land under the mill and adjacent thereto, so far as necessary to its use, and commonly used with it, passed by force of the word " mill." It is not necessary, in order to pass lands, that they should be spe- cially designated by that name. A grant of a messuage conveys all the land within the curtilage thereof; so the grant of a house. 4. The only ground, upon which a doubt could be entertained, is a dictum in Lord Chief Baron Comyn's Digest, (Grant, E. 9.) where he says, " by the grant of a mill cum pertinentiis the close where the mill is, or the kiln there, does not pass without more ;" and for this he cites 1 Sid. 211. 1 Lev. 131, which are different reports of.,the same case. The case itself docs not support any such doctrine. The question there was, not whether the land, on which the mill stood, passed under a grant of the mills with the appurtenances, but whether a kiln on another part of the close passed under the word " appurtenances." And the court held, that it did not, "for by the grant of a messuage or lands cum pertinentiis any other land or thing cannot pass, though by the words ciim terris pertinentibus, it Would. And Windham J. said if all the matter had been found, and that the kiln was necessary for the use of the mill, and without which it could not be useful, the kiln had passed as part of the mill, though not as appurtenances. In the English translation of Levinz's Reports, by Sergeant Salkeld, there is an error, which probably led to the mistake." He adds — " The case is much m->re fully ami accurately reported in 1 Keble R. 736, where the facts are stated as found on a special verdict. O. was seized of a manor and messuage, and a close, and having two mills on the west side, and of a kiln, which he newly erected on the other side ; then by metes and bounds he divided the close, and enfeoffed the plaintiff of the west part of the close, and the mills with the appurtenances ; afterwards he assigned the other part of the close with the manor to the defendant ; and " whether to these ancient mills, the kiln will, and being severed, pass as appurtenant, having been enjoyed and used" with them, BY EXPRESS AGREEMENT. 35 Grant with appurtenances. was the question. The Court held, that it did not. Keeling Gk J. said, " It pass- eth not, beinor neither found necessary, or belonging to the mill." Windham J. said, that the special verdict was short, and that it did not appear, that it was a kiln purposely erected for the use of the mill, " in which case it would have been parcel." And in substance this is the same as may be gathered from the brief note in 1 Siderfin, So that the case, when examined, proceeds upon a principle recognising that, which has been adopted by this Court. " A right to the road and lauding to haul logs as has been customary," was held to convey only an easement. Hasty v. Johnson, 3 Greenl. 282; Thompson v. Proprietors of And. bridge, 5 ib. 62. Where a deed conveyed to S., his heirs and assigns forever, four acres of land, with the building and implements and appurtenances thereon and thereunto be- longing, for carrying on the fulling business — " Granting also to said S., by these presents, the same privileges reserved to myself and my heirs, in a deed of land sold to A. R. &c." " Giving and granting to said S., by these presents, the priv- ilege of supplying himself, for the use of said mills, with water, at all times, from the saw-mill pond, whenever it is wanted for carrying on his business, provided the same is not unnecessarily used or wasted ; said S. to have free ingress and egress through the road laid out across or through the grantor's land to the public highway." And then followed the hahcndum, by which the granted premises and appurtenances were to be held by the said 5., his heirs and assi'rns forever, to his and their proper use and behoof. Held, that the privilege of taking water from the saw-mill pond extended not merely to himself personally, but also to his heirs and assigns ; it appearing that the water had always been so used ; and was in fact appurtenant thereto and essential to its enjoyment. Miller v. Scofield, 12 Conn. R. 335. Although it be not the office of the habendum to enlarge the sub- ject matter of the grant ; yet the words " to have and to hold," were held often to enlarge the estate conveyed in the granting part of the deed. The grant of a factory, such as a cotton factory, its machinery passes, whether affi.xed to the freehold or not ; the machinery being necessary to its beneficial en- joyment. Farrar v. Stackpolc, 6 Greenl. 154. So, the conveyance of a mill has been held to include not merely the building and its fixtures, but also any ease- ment, such as a head of water which has been accustomed to be used with it. Blake V. Clark, ib. 436. In Stevens v. Morse, 5 ib. 26, it was held, that the town could not convey any right to flow for benefit of a mill, as against private prop- ,crty. A reservation in a conveyance " of the grist-mill now on said falls, with the right of maintaining the same, was held to amount only to a right to the use cf the mill while it is in a condition to operate. Howard v. Wadsicorth, 3 ib. 471. A reservation in a conveyance of a water privilege was in these words — " Ex- cept when the water should be insufficient to carry the grantor's mill and a cotton factory, that might be erected with not more than 5000 spindles," — Held, that the instrument was not to be so construed as to limit the use of the water to a. cotton factor}', but the intention of the parties was merely to specify the quantify of water reserved. In }Vctmore v. White, 2 Caines' R. 87, it was held, that if the owners of land on flifFerent sides of the river agree to build mills on the land of one and to divert- 36 ACQUISITION OF EASEMENTS Grant with appurtenances. the whole water thereto, this amounted to an appropriation of the water, so that a release by one of his right to the mill will pass his right to the water also as in- cident. In Grant v. Chase &^ al., 17 Mass. R. 443, the action was trespass qiiare, &c. ; and the defendants justified under a right of way over the plaintiff 's land, to a pump, &c. thereon, as appurtenant to their own messuage adjoining. In one plea, it was alleged that the right, was in one C. who conveyed to defendants : and in another they allege a right by prescription. Verdict for the defendants. The court, Jackson, J. held, that the easements in question would not pass by deed •' with all the privileges and appurtenances thereto belonging," unless they were parcel of the premises conveyed or necessarily annexed and appendant to them : (The sugar house estate). This is not like a conveyance of a manor, a messuage, or farm, and known by a certain name, and including sundry distinct tenements, buildings or fields, which have been used with the principal thing, and reputed parcel of; and which would pass under the general name of the manor, mes- suage, &c. This is a conveyance of a specific piece of land, carved out of a lar- ger piece held by the grantor, and described by metes and bounds. In such a case nothing could pass, as parcel of the granted premises, but what is included in the boundaries expressed in the deed; at least none of the remaining part held by the grantor. Neither could these easements pass as appurtenant, under the general clause relating to privileges and appurtenances. It does pot appear that the way and other privileges were ever used and claimed, before E. became seized of both houses. If they had existed before that time, the right would have been extinguished by the unity of possession in E. Vin. Abr. extinguishment C. : Whalley v. Thompson <^ al. 1 B. & P. 371. The latter strongly resembles the present. The exceptions are of things appendant to the granted premises, and which are naturally or necessarily annexed to them. Such is the case of a nat- ural water-course, and perhnps of an artificial conduct, running to the granted premises through other land of the grantor. The case of lights also, in a house or other building, come within the same exception (12 Mass. 157.) So, when a way is strictly a way of necessity. But the way here was not annexed to the sugar-house estate by any natural or legal necessity. The privilege and way therefore did not pass by the terms of the deed. If there has been such a user as to estop the plaintiff from denying it, the defendants must show it. Lex Loci. — If the waters flow to a mill in another state, and the use becomes annexed to it, the use and the title are to be governed by the laws of the state in which the mill is situated. In Slack v. IVnlcott, 3 Mason. 508, which was a pro- ceedino- in equity to establish the title to the use of water for the plaintiff's mill. Story, J. ; " The mill in controversy is situated in Massachusetts ; the river, the use of whose waters is claimed as appurtenant to the mill, is the boundary of the two states, and the waters, therefore, partly flow in each state. The right, how- ever, is not a distinct right to the water, as terra aqua cooperta, or a distinct cor- poreal hereditament, but as an incident to the mill, and attached to the realty. It passes by a grant of the mill, and has no independent existence. It is not real estate situated in Rhode Island. It is an incorporeal hereditament annexed to a freehold in Massachusetts. And a conveyance of the mill, good by the laws of the state, where the mill is situated, conveys all the appurtenances. BY EXPRESS AGREEMENT. 37 Lex Loci. "The wrong done by stopping the flow of the water by an obstruction or drain in Rhode Island is an injury done to the mill itself in Massachusetts. In a just sense, the wrong may be said to be done in both states, like the analogous case of an injury to land lying in one county by an act done in another county .' The de- visee is entitled to the remedy also by the laws of Massachusetts as the owner of the mill. His title, when unimpeachable by the law of Massachusetts, docs not by the general principles of public law require any new probate in Rhode Island. It could receive no new validity from such probate. It could lose none without it. Suppose an ancient house situate on the boundary line of a state, and a person in the adjacent state obstructs its ancient lights was real estate in the adjacent state ? And if the title were derived by grant, or by will, would it be contended, that a registry of the deed or a probate of the will would bo necessary in each state be- fore any redress could be obtained by the owner ? If necessary at all, it would be equally so, whether the suit were brought in one state or the other. In such a case, if the law respecting grants or wills were different in the different states, a purchaser might rightfully succeed to the property of the house, but lose its an- cient privileges. The public law, which declares, that the title to real estate can pass only according to the law of the place, where it is situated, supposes the thing to be tangible and fi.Yi?d, aud the situs clearly intraterritorial. But where is the situs of an incorporeal right ? The right to flowing water is no more real es- tate, than the right to flowing air or light. The very nature of these things for- bids durable, fixed, and absolute, territorial possession. It is true, that a state has jurisdiction over the waters of the rivers, which flow within its boundaries, and may by its laws regulate the title, enjoyment, and use of them awhile, and so long as they flow within its boundaries. But its authority stops here ; the right to the use of the same waters, when they flow beyond its- boundaries, is not withm its control. The title is not acquired under the laws of such state. If the water3 flow to a mill in another state, and the use becomes annexed to it^ the use and th? title are exclusively to be governed by the laws of the latter state. What authoi;- ity has Rhode Island to control the water, which flows to a mill in Massachusetts? The right to the use of such water, whether it be deemed real or personal estate, is a right exercised under the jurisdiction of Massachusetts, and is to be governed by its laws. Rhode Island might indeed refuse to recognize in her courts the title to such property, unless it passed in some special manner prescribed by her laws. And so she might the title to lands in Massachusetts coming incidentally in ques- tion in her Courts. But this would not change such title, or give the state a right to annul it. It would be a refusal of that national comrty and justice, which the civilized world is accustomed to allow for great public purposes of policy and convenience. Beyond this the authority would have no operation. There is no pretence to say, that Rhode Island has as yet legislated to such an extent. Her laws for the probate of foreign wills go no farther, than to provide for such cases, where they affect property lying or being within the state." CHAPTER V. EASEMENTS BY IMPLIED GRANT. Severance of tenements. Destination du pere de famille. *49 *The imi)licatio!] of the j^raiit of an easement may arise in two ways : 1st, U])on tlie severance of an Ijeiitage by its owner into two or more parts, and, 2dly, by prescription. Upon the severance of an heritage a grant will be implied, 1st, of all those continuous and apparent easements which have in fact been used by the owner during the unity, though they liave had no legal existence as easements : and 2diy, of all tliose easements without which the enjoyment of the severed por- tions could not be fully had, Sect. 1. — Disposition of the Owner of Two Tenements. The latter class are usually termed easements of necessity ; the former mode of acquiring a right it is proposed to call — Disposition of the owner of two tenements, — which phrase is adopted as expressing the same origin of title as that which is designated by the French law "Destination du pere de famille," with the incidents to which, as defined by the Code Civile, the Eng- lish law upon this subject apppears to agree. " By the ' destination du pere de famille ' is understood the disposition or arrangement which the proprietor of several heritages (fonds) has made for *50 their *resi)ective use. Sometimes one heritage receives a benefit from another, without being in retinn subjected to j^n inconvenience which coidd amoimi to a species of compensation ; hiometimes this service is recip- rocal : but these differences do not in any way change the nature or effect of this distribution. If afterwards these heritages sliotdd become the property of different owners, whether by alienation or division amongst his heirs, the service which the one derived from the other, which was simple ' destination du pere de famille,' as long as the heritages belonged to the same owner, be- comes a servitude as soon as they pass into the hands of the different propri- etors (a)." (ffl) Pardessus Traite des Servitudes, s. 288. BV IMPLIED grant: 39 Disposition of owner of two tenements. Cases of this nature, vvliicli liave conic under the consideration of our courts, have generally been treated as arising from the application of the rule, that " no man can derogate from his own grant." This maxim, liowever, al- though consistent witli the doctrine stated, is insufficient to account for the principle that the obligation is ini[)0sed equally on the grantee and the grantor. There may be instances in vvjiich easements would arise, on the severance of tenements, from the operation of the former principle only — where, how- ever, there is no "apparent sign of servitude," but, unless the easement be l)resumegre^. Ibid. 52 ACQUISITION OF EASEMENTS. Disposition of owner, &c. Shury v. Pigott. eral expression, " ^mtits est sei-vitus utiqtte est," was binding as to strangers only ; and even tlie general reservation, that the alienated tenement " siiould be servient," appears to have been insufficient to prevent the vendee from disturbing tlie scrvimdes of his ven. 54 ACQUISITION OF EASEMENTS. Presumed grant and reservation. Liford's case. incident" (a) to the instrument creating tiie estate to which the easement is appendant. *72 *Thiis, in LifoiuFs case [h), wliere a lessor excepted all trees of a cer- tain age growing on the estate dcniised, and the lessee brought an action of trespass against certain |)arlics claiming under the lessor, for entering upon the lands to see the condition of the trees : it was resolved by the whole court, that, " when the lessor excepted the trees, and afterwards had an intention to sell them, tije law gave him and them who would buy, power as incident to the exception, to enter and show the trees to tliose who would have tliem, for without sight none would buy, and without entry they could not see them ; as in 9 H. 6. 29 b. A man seised of a house in a borougli, &c., deviseable, de- vised it to a woman in tail, and if the woman died without issue, that his ex- ecutor might sell and dispose of it for his sodi ; in that case the executor might, by the law, enter into the house to see if it was well repaired or not, to the intent to knOw at what value the reversion is to be sold. Quod fuit coucessum per totam curiam. The law gives ])ower to him who ought to re- pair a bridge to enter into the land, and to him who has a conduit on the land of another to enter into the land to mend it, when occasion requires ; as it is resolved 9 E. 4. 35 a. So it is agreed in 2 R. 2. Bar. f. 237. If I grant you my trees in my wood, you may come with carts over my land to carry the wood. Lex est cuicunque aliquis quid concedit, concedere videtur et id, sine quo res ipsa esse iion potuit ; and this is a maxim in law." From this, as well as other authorities, it appears that the inference of law arises equally whether the easement is incident to a grant or a reservation. *73 *Easements of this nature are thus described in RoUe's Abridg- ment : — " If I have a field inclosed by my own land on all sides, and I alien this close to another, he shall have a way to this close over my land, as incident to the grant ; for otherwise he cannot have any benefit by the grant. "And the grantor shall assign the way where he can best spare it. " So, too, if the close aliened be not entirely inclosed by my land, but partly by the land of strangers ; for he cannot go over the land of strangers (c)." Quaere. The chapter of Rolle, in which these sections occnr, is headed — "In what case one thing shall pass by grant of another — Incidents" — and the first pi. is, "The grant of a thing passes every thing included therein, without which the thing granted could not be had :" pi. 16, is "If a man grant or reserve wood, that implies liberty to take and carry it away ;" thus evidently treating it as a necessary implication of the intention of the grantor, as in the case of all other incidents which the law attaches to grants. (a) 1 Wms. Saund. 323 (n). (6) 11 Reports, 52. Davey v. Askioith, Hobart, 234. (c) 2 Rolle, Abr. tit. Graunt. Z. pi. 17, 18. 1 Wms. Saund. 323 (n). EASEMENTjB OF NECESSITY. 55 Presumed grant, &c. Jordan v. Attwood. Packer v. Welsted. Button v. Taylor. The general rule is thus stated by Serjeant Williams : " Where a man, hav- ing a close surrounded with his own land, grants the close to another in fee, for life or years, the grantee shall have a way to the close over the grantor's land, as incident to the grant, for without it he cannot derive any benefit from the grant. So it is where he grants the land and reserves the close to him- self (a)" (7). In Jordan V. ^^Uwood {b) t\ie defendant was seised of *a messuage *74 which had a way appendant to it over a certain close ; it appears to be admit- ted in the argument, that there was no other way to the house ; this close the defendant boiiglit, and afterwards enfeoffed the plaintiff thereof, making no reservation of the way ; and the present action was brouglit for the defendant continuing to use the way. The judges differed in opinion, some holding that the way was not extinguished ; others, that it was the defendant's own folly not to have reserved it ; but judgment was given for the defendant. But it is stated in 2 Lut. Ill, that, on searching the roll in this case, it was found that judgment was given for the plaintiff. In Packer'v. JVelsted (c) there was a special verdict, finding " that there were three parcels of land, and the necessary and private way was out of the first into the second, and out of the two first into the third parcel. J. S. purchased the three parcels, and then aliened the two first to J. N. : and the question was, if he shall have a way over the two first parcels to his third parcel. The jurors also found, that the alienation was by feoffment, and that there was no other way to come at the land not aliened but over the other land." After two arguments, the court gave judgment for the defendant, " that he might take a convenient way without permission (sans le gree) of the plaintiff, and the law would then adjudge whether such way were convenient and suf- ficient, or otherwise." Glyn, C. J., observed, " That it could not i)roperly be called a right of way (before the alienation), because no man could have such right in his own soil ; but that, *as the jurors had found the way to be *75 of necessity, it would remain, for it would be not only a private inconvenience, but also to the prejudice of the public weal, that the land should be fresh and unoccupied." In Dulton v. Taylor (rf), which was an action of trespass q. c. f, the defend- ant justified as tenant to one R. Cleadon, who was seised simul et semel of two closes, the only road to the second from an ancient highway being across the (a) '2 Rolle, Abr. tit. Graunt. Z. pi. 17, 18. 1 Wms. Saund. 323 (n). (6) Owen, 121. (c) 2 Siderfin, 39—111. (rf) 2 Lut. 1487 : Buckley v. Coles, 5 Taunt. 311. (7) IVay of J^ecessity. — A grantee of land has a convenient way of some part of the grantor's land, when the land of the latter surrounds the land granted. But the fact that a person has no right of way except over the defendant's land, is not of itself sufficient to give him a right of way from necessity. Brice v. Randall, 7 G & J. 349. 56 ACQUISITION OF EASEMENTS. Presumed grant and reservation. Howton v. Frearson. Clark, v. Cagge. first close ; this latter close Cleadon sold to one Astbiny, hut still continued to use the way across it, although there was no reservation of any right of way in tlie deed of conveyance. It was ohjected, the law would not imply any reservation by the vendor where none was expressed. Scd iion allocatur. '' For it is apparent by the plea, that it is a way of necessity, and it is pro bono publico that tlie land sliould not be unoccupied." In Howton v. Frearson («) the court hold, that a way of necessity over the grantor's land would equally be im{)]ied as incident to a grant, thougii the granting party was a trustee : but Lord Kenyan expressed doubts as to the correctness of the general princij)le hud down in the case above cited. Ways of necessity, of a different kind, are mentioned by Doddridge, J., in Shury v. Piggott (6), — ways " to the churcii or to market." Under this head, likewise, come easements incident to the rights which a party has in virtue of his office, as a right of entry in the parson to take away *76 his tithes ; *Payne v. Brighcn (c) ; and, also, a right to make tlie grass into hay on the land where it grew [d). It would seem, from an observation of Mansfield, C. J., in Morris v. Edging- ton (c), that although in these cases there might exist some other mode of ac- cess, yet, if the way claimed " was necessary for the most convenient enjoy- ment" of the thing demised, it would be a way of necessity. In an anonymous case (/), it is said, per Curiam, "If a man, either by grant or prescription, have a right to wreck thrown upon another's land, of necessa- ry consequence, he has a rig-ht to a way over the same land to take it." And again, in The Qtteen, v. Inhabitants of Cluworth {g), by Holt, C. J., " If one have land adjoining on a navigable river, every one that uses that river has, if occasion be, a right to a way by the bank of tiie water over that land, or farther in, if necessary." This general right to tow along the banks of navigable rivers is denied in Ball v. Herbert [h], unless founded either on statute or custom. "On selling two closes," it is said in Keble (i), "and keeping the middle, I shall have a way against my own grant, although I may enter by another as convenient." In Clark v. Cagge {j) upon demurrer, the case was — " The one sells land, and afterwards the vendee, by reason thereof, claims a way over part of the *77 ])laintifF's *land, there being no other convenient way adjoining, and whether this was a lawful claim was the question ; and resolved without argu- ment, that the way remained, and that he might well justify the using thereof, because it is a thing of necessity ; for otherwise he could not have any profit of (a) 8 T. R. 50. (h) 3 Bulstrode, 340. (r) 2 Lutw. 1313 ; S. C. 3 Leon. 228. (^) 1 Rolle, Abr. Dismes, X. pi. 23. (f) 3 Taunt. 28. (/) 6 Mod. 149. (g) Ibid. 163, C. (A) 3 T. R. 253. (?) Per Foster, .T., in Palmer v. Flessier, (j) Cro. Jac. 169. 1 Keble, 553. EASEMENTS OF NECESSITY. 57 Presumed grant, &c. Lord Davey v. Askwith. Wiseman v. Denham. his lani]< Et e converse — 'If a man hath four closes lying together, and sells three of them, reserving the middle close, and hath not any land thereto but through one of those which he sold, although he reserved not any way, yet he shall have it as reserved unto him by the law : and there is not any extinguish- ment of a way by having both lands," The concluding observation evidently refers to the kind of way here spoken of — a way of necessity : but whether it does or not is immaterial to the author- ity of the case, which did not turn upon any question of extinguishment, but upon the new title implied by law. The accessorial right which the law thus confers is to be measured by the nature of the grant or reservation to which it is incident, and it has been held to cease Avhen it is no longer required, in order to render such grant or reser- vation effectual. Thus, in Lo>-d Davey v. Askwith {a\ where an action of waste was brought against the defendant for felling oak trees. The only question was — whether the lessor by leasing coal mines did, by implication of law, give power to the lessee to fell timber for the use of the coal mines. It was agreed that the grant of a thing did carry all things included, without which the thing granted could not be had. But this case was adjudged una voce, against the defendant ; for it must be understood* of things incident and directly necessary. *78 Tlius, if I give you the fish in my waters, you may fish with nets, but yon may not cut the banks to lay the waters dry. If I grant or reserve woods, it implies a liberty to take and carry them away. In Wiseman v. Denham [h) the plaintiflT declared that there was u custom for every parishioner to pay to the parson the sixteenth cheese, as tithe for cheese, on a certain day, and that he tendered to the parson (obtnlit) a certain number, being the fifteenth of what he made ; that the parson refused to receive them, and suffered them to remain in the plaintiff's house for half a year, doing damage to him, &c. After verdict for the plaintiff, it was moved in arrest of judgment, that no action would lie ; but the court were of opinion, that such an action was maintainable. If a parishioner duly sets out his tithe of hay, and requires the parson to carry it away, but he doth not do so in convenient time, whereby the grass where the hay lay is spoilt, an action on the case lies against the parson (c). In Holmes v. Goring {d) the defendant having been previously entitled to a (a) Hobart, 234. (h) Palmer, 341 — 381 ; vide etiam Shepcott v. Mudford, 1 Lord Ray. 187 : South V. Jones, 1 Strange, 245 ; 1 Rolle Ilep. 172, 420. (c) Rolle Abr. Action on the case. N. fol. 36. (d.) 2 Ring. 76 ; S. C. 9 Moore, 166. 8 58 ACQUISITION OF EASEMENTS. Presumed grant, &c. Holmes v. Goring. Reynolds v. Edwards. way of necessity over certain closes, purchased these closes, together with certain other j)ieces of land adjoining tlie close to which tlie way of necessity led : lie subsequently sold two of thu closes over which the way of necessity had *79 been used, together with some portions of the land adjoining, *which prevented his Jiaving access over his own land to those closes to which the light of way had originally been enjoyed. These portions had, however, been repurchased by him long before the present action was brought, at which time he could have had as convenient access over his own land as over that occupied by the plaintiff. The question to be decided was, whether the way of necessity — which was admitted to have existed when the defendant sold the close now occupied by the plaintiff— was defeated by the fact, that, by a subsequent purchase, he was enabled to approach the close to which, &c. over his own land ; the defendant contending that the necessity of the way was to be considered with reference to the condition of the property at the time of the sale of the two closes. The Court held that the way of necessity ceased as soon as the defendant had any other means of access to the close to which it led. " A way of neces- sity," said Best, C. J., (citing Serjeant Williams's note to Saunders), " when the nature of it is considered, will be found to be nothing else than a way by grant; but a grant of no more than the circumstances which raise the implication of necessity require should pass. If it were otherwise, this inconvenience might follow, that a party might retain a way over one thousand yards of another's land, when, by a subsequent purchase, he might reach his destination by pass- ing over one hundred yards of his own. A grant, therefore, arising out of the implication of necessity cannot be carried further than the necessity of the case requires, and this principle consists with all the cases which have been decided." Park, J., added, " From all the authorities referred to, it is clear that when a* way is claimed by necessity, it is a good answer to show 80* that there is another way which the party may use. Burrough J., expressed his opinion to be, " That there must be a necessity continuing up to the time of the trespass justified under it." The opinion here expressed by Burrough, J., appears to be in accordance with the decision of the court of K. B. in Reynolds v. Edwards (a): the defend- ant's lessor had a prescriptive right of way over the plaintiff's land to a close which was encircled by land of the plaintiff. Twenty-four years before the action was brought, the plaintiff stopped up the old way and opened a differ- ent one, which latter, after being used by the defendant's lessor during that period, the plaintiff also stopped u\), and brought the present action of tres- pass for the use of it by the defendant, and his removal of a gate erected across it by the plaintiff. The court held that the new way could not be claimed as a way of necessity, as it did not appear " that there was no other way, but only that there was no other pass >ge open," and that as the plea set (a) WiUes, 232. EASEMENTS BY NECESSITY. 59 Presumed grant, &c. Buckley v. Coles. James v. Dods. forth a right of way by prescription, which the plaintifF had admitted by de- iriuning to the plea, that was sufficient to prevent the defendant being en- titled to this as a way of necessity. That it was, in fact, but a way of suffer- ance, and upon tlie plaintiff determining Jiis will by erecting the gate, the de- fendant should have had recourse to his old right. The case of Buckley v. Coles (a)ap{)ears from the flicts as stated in the report to be somewhat at variance with * the doctrine above laid down, as *81 during the time in which there was a unity of the whole property there ap- peared to have been another approach to the close, to which (fcc. besides the pre- viously existing way of necessitj', and as this new approach existed at the time of severance, the former necessity must, of course, have ceased. Tiiere appears, however, to be some confusion in the facts, as the jury expressly found, that at the time of the trespass for wiiich the action was brought, there existed no other way but the one claimed by the defendant. Dallas, J., said, " the question on the issue is, whether there was any other way. The evidence on the defendant's side is, that there was no other way. The plaintiff meets it by evidence that there was another way, though not quite so convenient ; and the jury have had it before them and have disaffirm- ed the existence of any other way." It is, therefore, in flict, an authority to the same effect as the case of Holmes V. Goring above cited. In James v. Dods [b] the Court of Exchequer held that a rector, though en- titled to the use of wliatever roads existed on the farm for the purpose of car- rying away his tithes, had no right, except by express grant or prescription, to prevent the occupier from makuig such alterations as were advantageous to his land, though the accustomed road was thereby stopped up, provided such alterations were made bona fde, and not with any vexatious intention towards the tithe-owner. Lord Lijndhurst, C. B., said — " In this case there was no evidence to estab- lish a riiiht of way by prescription or grant ; and there is no evidence to show that the farmer ever carried his nine-tentlis by the way claimed. *Tlie *82 tithe-owner has a right to the same road as tlie farmer uses to carry his nine- tenths ; and it appears to me, that, if the farmer, acting completely bona fide, alters the line of road to his farm, he has a right to do so, and the parson must use the substituted road, and has no remedy except under a prescription or grant. If there were such a right as is here claimed by the plaintiff, it would prevent the farmer from altering the road in the slightest degree, and it is not pretended that he may not make a slight deviation Now here, there was no evidence that the farmer ever did use the way for the purpose of carrying away his nine-tenths ; and the evidence of user by the parson is limited to two or three instances. It does not api)ear to me that there was any thing to prevent the defendant acting bona fide from setting out another way for the (a) 5 Taunt. 311. (b) 2 Cr. & Mee. 1266. Vide cases there cited. 60 ACQUISITION OF EASEMENTS. Presumed grant, &.c. James v. Dods. All easements extinguished by unity. convenient munuijemeni of the farm. Here the defendant bona fide stopped up the old way and set out another ; and the plaintiff has, therefore, no right to use the old way. The action, therefore, cannot be sustained." Bayky, B. — "This action is founded on the supposition that the plaintiff has a right of way, in the use of which he has been obstructed. There is no doubt that a tithe-owner has a right to use the way from time to time used by the occu[)ier for the ])urpose of carrying off his nine-tenths. Originally, I sljould say, that the parson's right was to follow the farmei-'s road to his homestead, and thence to get to the road towards the parsonage. He may liave a further right ; and it is suggested that he has the right to use all the roads used for the cultiva- tion of the farm. I will not say that he has it not, but that right results from *83 the farmer's * conduct and management of the farm, and is co-exten- sive with the usage for the purposes of cultivation, and does not put an end to the farmer's right to stop up the road. There may be a right by grant or by prescription, which presupposes a grant by the owner of the inheritance, to which the owner or occupier cannot act in opposition ; but, if no such right exists, it seems to me that the tithe-owner is not entitled to use a way, mere- ly because it is most convenient to himself, or because the occupier, for his own convenience, has sometimes used it. Here, there was no evidence to establisli such claim of right. The manner in which the way was used by the landowner furnished no evidence, as it appeared that the opening had been made for purposes of his own, and that his tenant had been in the habit of driving his cattle that way into the road, and three or four times the tithe-owner used it ; which might be either because he had leave to use it, or because it was one of the roads used by the farmer. The only question then for us to consider is — whether, in point of law, the circumstance of the way having been used by the farmer a considerable time, gives the tithe- owner a right to keep it open. lam of opinion that it does not." In the cases already cited the expression frequently occurs, that ways of convenience are extinguished by unity of possession, but ways of necessity are not. It appears, however, to be more correct, as well as more in accord- ance with the general principles of the law of easements, as recognised both by the English and Civil law, to consider all easements, whether of conven- ience or necessity, as extinguished by unity, but that, upon any subsequent * 84 severance, easements which * previous to such unity were easements of necessity, are granted anew in the same manner that any other easement which would be held by law to pass as incident to the grant. Had there been a unity from time immemorial, the law would clearly imply a right of way as incident to a grant, if there existed no other means of such grant taking effect. Why, then, should this anomaly of non-extinguishment be held to be law, when the same result can be obtained from the ordinary principles regulating other easements of the same class ? In none of the numerous cases, in which the question of extinguishment lias been discussed, has it been laid down that the same right revived upon the EASEMENTS OF NECESSITY. 61 Presumed grant, &c. All easements extinguished by unity. Homes v Goring. severance of the tenements which existed previous to the unit}'. Tlie utmcst extent to which the juilj^es go, is to say tliat a right of way revives, because the nevv grant would otherwise Ipe inoperative. Where a party died seised of certain Ijuids and a mill, which descended to his two daughters as coparce- ners, it was held that an agreement by parol between them, on making parti- tion, that a way should be used to the mill as during the lifetime of their father, was binding on them (o). Broke, in iris Abridgment (6), says, " The way is revived ; tamen vidttur that it is a new way (nouvel chimine). It is clearly settled, on all the authorities, that, during the unity, no way or easement can exist in the land (c). The language of Best, C. J., in Holmes v. Goring [d) fully supports the doc- trine above stated, that all ways are extinguisiied by unity of ownership; and that ways * of necessity are in reality new easements incident to the * 85 grant or reservation. "If I have four fields, and grant away two of them over which I have been accustomed to pass, the law will presume that I re- serve a right of way to those which I retain. But what right ? The same as existed before ? No ; the old right is extinguished and the new way arises out of the necessity of the thing. It has been argued that the new grant operates as a prevention of the extinguishment of the old right of way, but there is not a single case which bears out that proposition, or which does not imply the contrary. By the grant a new way is created, and that way is limited by necessity." Serjeant Williams saj's, " Where a man, having a close surrounded by his own land, grants the close to another, the grantee shall have a way to the close over the grantor's land, as incident to the grant. What way is it the grantee shall have ? Not the old, but a new way, limited by the necessity." In Clcvrk v. Cogge (e) the Court says that " although the grantor in such a case reserve not a way, it shall be reserved for him by law ; that is, not the old way, but a new way of necessity, if he hath not any other way." In Jordan V. Attivood {/), Popham, C. J., says, " If a man has three fields adjoining, and makes a feoffment of the middle field, the feoffee shall have a way (not the way) to this through the other close." (a) 21 Ed. 3. 2; S. C. 21 ; Ass. pi. (b) Tit. Extinguishment, fol. ^5. (c) Morris v. Edgington, 3 Taunt. 24. {d) 2 Bing. 83. (e) Cro. Jac. 170. (/) Owen, 121. CHAPTER V. TITLE TO EASEMENTS BY PRESCRIPTION. Definition of Prescription. Possession. Legal possession. * 86 * Prescription may be defined to be — A title acquired by i)osses- siou had duniig the time and in the manner fixed by law. " Prescrij)tio esE titulus ex usu et tempore substantiam capiens ab authoritate legis" (a). After the lapse of the requisite period the law adds the lights of property to that which before was possession only (6). "Things corporeal can alone be susceptible of possession (c) — things incor- poreal, that is to say, those ^qiicB in jure consistunt,^ fire not in fact susceptible of possession, strictly and properly so called ; but they are susceptible of a quasi possession, '■jura non possidentur sed quasi possidentur.'' This quasi pos- session consists in the enjoyment of the right by him to whom it belongs. Thus, I am considered to have the quasi ])ossession of a right of servitude when I do on the neigboring heritage, in the siglit and with the knowledge of the proprietor of that heritage, those acts which my right of servitude enti- tles me to do. This quasi possession is susceptible of the same qualities and defects as ])ossession properly so called {ossible for him to have interfered at any time during the twenty years. The cases, therefore, of ancient windows above cited are, now, at least of doubtful application ; but as the statute does not ai)pear to have made any material alteration in tlie law as applicable to the user of other easements for a period of twenty years, these decisions are at all events authorities in the case of all those rights to which, before the passing of the statute, the law of ligiit was analogous (o). " During the period of a tenancy for life, the exercise of an easement will not affect the fee. In order to do that, there must have been that period of enjoyment against the owner of the fee" (b). *114 *With regard to all easements, except light, the law as to the ser- vient tenement not being in the possession of the owner of the inheritance, where knowledge in fact on his part can be shown, would appear to be the same as before the statute. But where the servient tenement " upon, over, or from which any way, or other convenient watercourse, or use of water" is claimed, has been held under any term of years exceeding three years from the granting thereof, the user dining the continuance of such term is excluded in the computation {e\ provided the owner asserts his rights within three years after the expiration of the term. In Bright v. Walker {d), where an action was by one lessee of the Bishop of Worcester against another lessee, for obstructing a way, the evidence of the right consisted of an user for twenty years, during which time the land of the defendant had been in lease for lives, the Court of Exchequer held, that the plaintiff had gained no right by such user against the Bishop or any other person. But no evidence was given, nor was the question in any way raised of the knowledge or acquiescence of the Bishop. (a) See Wall v Nixon, 3 Smith, 316. Q)) Per Curiam in Bright v. JVallur, 1 Cr. Mee. & Ros. 222. (c) Both of the period of 20 and 40 years. Per Cur. in Bright v. Walker, 1 Cr M. «Sr Ros. 211. (d) 1 Cr. M. & Ros. 211. BY PRESCRIPTION. 7'J Persons against whom enjoyment is valid. Upon the point how far the reversioner is bounrl by an enjoyment had dur- ing the continuance of a |)articular estate, two questions of great doubt and dilHculty have been introduced ijy tiie statute: — 1st. Supposing the reversioner, being aware of the fact, from time to time gives a parol or written notice of his dissent to the eMJoyment of tlie ease- ment, any active interference on his part l)cing prevented by tlie existence of the particidai' estate — 2d. Supposing the reversioner to be in total ignorance* of any *115 such enjoyment having been bad during the continuance of the ])articular estate, and in consequence of such ignorance not to have availed liimself of the exception in his favor contained in the statute — In either of these cases would a valid right to an easement be acquired ? At all events, if the user of any easement had actually commenced before the property over which it was claimed passed into the possession of the les- see, the mere fact of such tenancy having continued during a period of twenty years will not, it seems, be sufficient to defeat the right acquired by the lapse of time, unless it be also shown that the landlord, up to the time of granting the lease, was in ignorance that anj'^ such right was claimed. Thus, where a house was proved to have been built thirty-eight years, during the whole of which time there had been windows towards the adjoining premises, and these premises bad belonged for a number of years to a family residing at a distance, none of whom were proved to have ever seen them, and they had been occujiied by the same tenant during the last twenty years — the Court held, that, after siicli a long enjoyment, the windows must be considered an- cient windows, and that the plaintiff was consequently entitled to recover for their obstruction [a). Baijley, J., in his judgment says, " The right is proved to have existed for thirty-eight years : the commencement of it is not shown. It is possible that the premises both of the plaintiff and defendant once be- longed to the same person, and that he conferred on the plaintiff, and those under whom she claims, a right to have the windows free from obstruction. Daniel V. JVorth has been relied * on to show that the tenancy re- *116 butted the prescription of a grant, but this is a very different case. Here ten- ancy was shown to have existed for twenty years, but the origin of the plain- tiff's right was not traced." And Littledule, J., adds, "It was ]noved that the windows had existed for tliirty-eight years, and the tenancy for twenty. How the land was occupied for eighteen years before that time did not appear. I think that quite sufficient to found the presumption of a grant." As the claim of an easement is in derogation of the ordinary rights of prop- erty, it lies upon the party asserting such claim in opposition to common right, in all cases to sujiport his case by evidence. In Cross v. Lewis, the ab- sence of any evidence as to the earlier state of the windows was indeed held to operate in favor of the i)laintiff— the party claiming the easement ; — but the substantial proof, viz. of the user for a period of twenty years, had already (a) Cross v. Lcjcis, 2 B. & Cr. 68G ; S. C. 4 D. & R. 234. 80 ACQUISITION OF EASEMENTS Persons against whom enjoyment is valid. Disabilities in computing 20 years. been given by the claimant ; and tliis nnrehuttod by any evidence to take the case out of the ordinary rule, was of coinse sufficient to establisii the ease- ment. From the observations of the learned judge in the above case, it would ap- pear, that, j)roviilod the existence of the casement prior to the commence- ment of tlie tenancy was shown, and a sufficient length of enjoyment had taken place to affisrd evidence of a grant, tiie burtlien of proof wouy be thrown ui)on the owner of tlie land sought to be made liable to the easement; and unless he could show such previous user to have taken place without his knowledge, the right to the easement would be establisiied (a), / * 117 Indeed it should seem from this case that proof of * enjoyment for twenty years was in all cases prima facie evidence of a title, which must be rebutted by the owner of the servient tenement. ' With respect to the party against whom the right is to be established, as a grant from the owner of the servient tenement is to be presumed, disability on his part to execute sucli a grant will exclude the presumption which would otherwise arise from user during the continuance of such disability. By the recent statute, in all cases of computing the twenty years' user, ex- cept in tlie case of light, the time during which the servient owner may have been an infant, idiot, non compos mentis, feme coveit, or tenant for life, or during wiiich any action or suit to dispute the right, afterwards abated by the death of any part}', may have been j)ending, is excluded. No provision is made for the case of a party being beyond the seas during the whole or any part of the period of prescription. Before the |)assing of the statute, an enjoyment of an easement for twenty years would have been evidence from wliich a jury might have found a non- existing grant from the owner of the particular estate, which would have been binding on him, although it could not affi;ct the riglits of the reversioner ; hu% it was held in the case of Bright v. Walker, that since tiie statute no such modified right to an easement can exist. To be valid against any, it must be valid against all who have any estate in the land. " The important question," said INlr. Baron Parke, in Bright v. Walker {h\ "is, whether this enjoyment, as it cannot give a title against all persons having * 118 estates in the locus in quo, gives a title as against the lessee * and the defendants claiming under iiiin, or not at all ? We have had considerable difficulty in coming to a conclusion on this point; but, upon the fullest con- sideration, we think that no title at all is gained by an user which does not give a valid title against all, and permanently affect the see. Before the stat- ute, this possession would indeed have been evidence to support a plea or claim by a non-existing grant from the termor in the locus in quo, to the ter- mor under whom the plaintiff claims, though such a claim was by no means a matter of ordinary occurrence ; and in practice the usual course was to (a) See Gray v. Bonrl, 2 Brod. & Bing. 667 , 5 .1. B. Moo. 527. (6) 1 C. M. & R. 220. Mniimoiith Canal Compamj v. HarwoofI, Id. 614. BY PRESCRIPTION. 81 Persons against \Kkoni Enjoyment is vaJid. state a grant by an owner in fee to an owner in foe. But, since the statute, such a qualified right, we tliiuk, is not given by an enjoyment for twenty years. For, in the first place, the statute is " for tiie shortening the time of prescription ; " and if the periods mentioned in it are to be deemed new times of prescrii)tfOn, it must have been intended that the enjoyment for those pe- riods should give a good title against all, for titles by immemorial prescrip- tion arc absolute and valid against all. They are such as absolutely bind the fee in the land. And, in the next place, the statute nowhere contains any in- timation that there may be diflTerent classes of rights, qualified and absolute — valid as to some persons, and invalid as to others. From hence we are led to conclude, that an enjoyment of twenty years, if it give not a good title against all, gives no good title at all ; and as it is clear that this enjoyment, whilst the land was held by a tenant for life, cannot aflxiet the reversion in the bishop now, and is therefore not good as against every One, it is not good as against any one, and, therefore, not against the defendant." *In this instance the enjoyment had continued during twenty years *119 only. Where, however, the full period of forty years has elapsed, as that would confer a right to the easement, subject to the condition only that tiie reversioner interfered within three years after the determination of the particu- lar estate, as in the cases of conditional estates, a valid right is given as against all the world until by the happening of the condition the estate is defeated. "The enjoyment of the riglit dining foity years," said the Court in ff right v. Williams (a), " alleged in the pleas, being admitted, tlie replications, which state only an existing tenancy for life, are no answer ; for the time of a tenan- cy for life in a person who might otherwise be capable of resisting the claim, though excluded by the 7th section from tlie computation of the shorter period of twenty years absolutely, is, by the 8th section, excluded from the computa- tion of the longer period of forty years conditionally only ; that is, provided the reversioner expectant on the determination of the term for life shall, within three years (that is, probably, before the end of three years), after such deter- mination, resist the right ; and it does not appear that the plaintiff is entitled to the reversion expectant on that lease, though it is averred that he has a re- version expectant on the determination of the interest of the tenant in posses- sion. The tenancy for the life of Lord Dinorben, the cestui que vie, is there- fore not to be excluded, on these pleadings, from the period of forty years ; and, such period being complt te, the defendant is entitled to an indefeasible right to the easement claimed." *If the judicial opinion which has been expressed, that the Pre- *120 pcription Act has not superseded the common law, is correct, the point upon which Bright v. Walker turned should have been decided otherwise. In fact, if that case had been a correct exposition of the law, no length of enjoyment could have conferred an casement during the existence of a particular estate. (a) 1 M. & W. 100 11 82 ACQUISITION OF EASEMENTS Persons to whom user will give an easem^t. Nee vi, nee clam, nee precario. The enjoyment of half a century might be defeated by the very person who had permitted the enjoyment. Although the user by which it is sought to acquire an easement must be that of the party in possession of the .dominant tenement, yet any user under a claim of right in respect of such tenement will be in contemplation of law user by such possessor. Hence it appears that there is no disability of any kind to destroy the effect of such user ; unless, indeed, the extreme case ad- verted to in the civil law be supposed — of the only user being by a person not having the use of reason, in which case no right was acquired, the inten- tion to assert a right not existing. This was illustrated by the instance of put- ting something into the hand of a man when asleep (a). User by an infant capable of understanding what he was doing was suffi- cient to acquire the servitude. So also was user by a tenant or servant, even without the owner's knowledge (6). *121 *Sect. 3. — Qualities of the Enjoyment. In order that the enjoyment, which is the quasi possession of an easement, may confer a right to it by length of time, it must have been open, peaceable, and "as of right." The effect of the enjoyment being to raise the presumption of a consent on the part of the owner of the servient tenement, it is obvious that no such in- ference of consent can be drawn, unless it be shown that he was aware of the user, and, being so aware, made no attempt to interfere with its exercise. Still less can such consent be implied, but rather the contrary, where he has contested the right to the user, or where in consequence of such opposition an interruption in the user has actually taken place. ""' Even supposing these defects of the user not to exist, still the effect of the user would be destroyed if it were shown that it took place by the express permission of the owner of the servient tenement, for in such a case the user would not have been had with the intention of acquiring or exercising a right. The presumption, how- (a) Furiosus et pupillus sine tutoris auctoritate non potest incipere possidere : quia afFectionem tenendi non habent, licet maxime corpore suo rem contingant : sicuti si quis dormienti aliquid in manu ponat. Sed pupillus tutore auctore incip- iet possidere. Ofilius quidem et Nerva falius, etiam sine tutoris auctoritate possi- dere incipere posse pupillum aiunt ; eam enim rem facti, non juris esse : qusB sen- tentia recipi potest, si ejus setatis sint ut intellectum capiant. — L. 1. § 3. if. de adq. vel amit. poss. (6) Is cujus colonus, aut hospes, aut quis alius iter ad fundum fecit; usus vide- tur itinere, vel actu, vel via, et idcirco interdictum habebit ; etiam si ignoravit cujus fundus esset, per quem iret, retinere cum servitutem. — L. 1. § 7. fF. de itinere. BY PRESCRTPTION. 83 Nee vi, nee clam, nee precario. Qualities of the enjoyment. ever, is, that a party enjoying an easement acted under a claim of right until the contrary is shown {a). The civil law expressed the essential qualities of the user, by the clear and concise rule that it should be " nee vi, nee clam, nee precario" {h). The doctrine of the law of England, as cited by Lord *Coke, from *122 Bracton, exactly agrees with the civil law. The possession must be long, continuous, and peaceable. Long, that is, " during the time required by law; continuous, that is, uninterrupted by any lawful impediment ; and peaceful, because, if it be contentious, and the opposition be on good grounds, the party will be in the same condition as at the beginning of his enjoyment. There must be " longus usus nee per vim, nee clam, nee precario (c). Transferuntur dominia sine titulo et traditioij^, scilicet per longam, continuam, et pacificam possessionem ; longam i. e. per spatium temporis, per legem definitum ; con- tinuam dice, ita quod non sit legitime interrupta ; pacificam dico, quia si con- tentiosa fuerit idem erit quod prius, si contentio fuerit justa ; ut si verus dom- inus statim, cum intrusor, vel disseisor ingressus fuerit seisinam, nitatur tales viribus repellere et expellere, licet id quod inceperit perducere non possit ad efFectum, diim tamen cum defecerit, diligens sit ad impetrandum et prose- quendum ; lougus usus nee per vim, nee clam, nee precario, &,c." The enjoyment must be peaceable. At common law any acts of interruption or opposition, from which a jury might infer that the enjoyment was not rightful, were sufficient to defeat the effect of the enjoyment, the question being, whether, under all the facts of the case, such enjoyment had been had under a concession of right. By the statute it is enacted that nothing shall be deemed to be an interrup- tion, unless it shall be submitted to, or acquiesced in, for the space of a year after *the party interrupted shall have notice thereof, and of the per- *]23 son making or authorizing the same. It is certainly by no means clear what the precise intention of the legisla- ture was ; but it appears hardly possible that it shojild have been intended to confer a right by user during the prescribed period, however " contentious " or "litigious" such user may have been {d). In the recent case of Bailey v. Apphyard (e), the erection of a rail by the owner of the servient tenement within the shorter period of the statutory prescription was held sufiicient to prevent the acquisition of the right ; and it was decided that it was incumbent on the plaintiff to prove an enjoyment not interrupted, every interruption be- ing presumed to be hostile until the contrary was shown. It does not appear from the report that in this instance the interrui)tion was acquiesced in, or even continued for a year. (a) Campbell v. Wilson, 3 East, 300. (b) C. L. 1. fF. de serv. L. 10. fF. si serv. vind. (c) Co. Litt. 113. b. ; Bracton, lib. 2, f. 51 . (d) See Wright v. Williams, ] M. & W, 100. {,■) :i Nov & ?. 257 84 ACQUISITION OF EASEMENTS Nee vi, nee clam, nee preeario. Qualities of the enjoyment. By the Civil law any enjoyment was said to be forcible to which opposition was offered, either by word or deed, by the owner of the servient tenement (a). The enjoyment must be open. The user of an easement may be secret, either from the mode in which a party enjoys it, qr from the nature of the easement itself. *124 *Instances of the former kind are where the right is exercised by stealth, or in the night {b). Instances of the latter kind occur where a claim is made to an extraordinary degree of support to a house from the neighboring soil, in consequence of an excavation on the party's own land, not visible to the neighbor (c). A consideration of this rule would, it appeal's, afford an answer in the af- firmative to the question incidentally raised upon the case of Dodd v. Holme [d], — whether, in order to acquire a right to sujjport for a house by antiquity of possession, it must originally have been built with that degree of strength and coherence, which may reasonably be expected to be found in a well-built house— for as there might be nothing in the external appearance of the house to give notice to the owner of the adjoining land, that the weakness with which it was built caused it to require a greater degree of support from his soil than a well-built house would have required, and quoad such additional support the enjoyment would have been secret, no presumption of a grant of it on his part could be implied. The same reasoning would also apply to the case of an ancient house, orig- inally well built, becoming weaker from the want of proper repair. A man believing there were no minerals on his own land might be willing to subject *125 *it to the easement of support for a well-built house, which would diminish the value of his property only in the event of his wishing to mine in (o) Vi factum videri, Quintus Mucius scripsit, si quis contra quam prohiberetur, fecerit j et mihi videtur plena esse Quinti Mucii definitio. Sed ct si quis jactu vel minimi lapilli prohibitus facere, perseveravit facere, liunc quoque vi fecisse videri, Paedius et Pomponius scribunt, eoque jure utimur. — L. 1. § 5, 6. ff. quod vi aut clam. Prohibitus autenj intelligitur quolibet prohibentis actu, id est, vel diccntis se prohibere, vel manum opponentis, lapillumve jactaptis prohibendi gratia. — Ibid. L. 20. § 1. (6) Itaque clam nanciscitur possessionem, qui futuram controversiam metuens, ignorante eo quern metuit, furtive in possessionem ing^editur. — L. 6. ff. de adq. vel amit. poss. Talis usus non valebit cum sit clandestinus, et idem erit si nocturnus. — Bracton, lib. 2, f. 52. Aut in absentia domini. — Ibid. Lib. 4, f. 220. See Dawson v. Duke of Norfolk, 1 Price, 246. (c) Partridge v. Scott, 3 M. «fe W. 229. () J M. &. VV. 77. (c) Murgatroyd v. Lloyd, Carlhew, 116; Bruwn v. Best, 1 Wilson, 171. WATER-COURSES. 89 ^ Natural and acquired easements in running water. ilierefore an artificial easement would appear to bear a double aspect — first, it destroys, pro tanto, the natural easement, of the flow of the water in its accus- tomed course ; and, secondly, it confers a new right, the disturbance of which gives a good right of action agrtinst all the world. Bracton appears to consider the obligation to respect the natural course of a flowing stream as a duty imposed by law; and that, unless justified by an easement, a man has no more right to divert the course of a stream than to discharge water upon his neighbor's land: "Item a jure imponitur servitus prsedio vicinorum ; * scilicet nc quis stagnum suum altiiis tollat, per * 131 quod lenementum vicini sid)mergatur ; item ne facial fossam in suo perquam aquam vicini divertat, vel per quod ad alveum suum pristinum reverti non possit in toto vel in parte" {a) (10). (a) Bracton, lib. 4, f. 2->) . (10) Where the owner of o)ie lialf of a stream builds his dam across the river, this is considered an invasion of the rights of the owner on the other side, al- though the latter does not then use the water. Bliss v. Rice, 17 Pick. 23. In the case of Howell v. M' Coy, 3 Rawle, 256, per Cur. Huston, J. It is a principle of the common law, that the erection of any thing in the upper part of a stream of water, which poisons, corrupts, or renders it offensive and unwhole- some, is actionable. And this principle not only stands with reason, but is sup- ported by unquestionable authority, ancient and modern. It has long since been adjudged, that he who has a fishery, may maintain an action against a person for erecting a dye-house ; 9 Rep. 59 ; Co. Litt.200, b. ; Angell on Water-courses, 59 ; A pp. 17, Bealy v. Shaw, et al. And if a glover sets up a lime-pit, and corrupts the water, an action lies ; Angell on Water-courses, 60 ; 13 Hen. 2, b. 6. The maxim is, sic ntere tuo id ne Iccdas aliemini. These positions are recognised by all the writers on the common law, nor have they ever been disputed or denied, in any adjudged case, so far as my researches j^ave extended. The erection of a tan-yard comes within the operation of the same principles, provided it has the effect of which the plaintiffs complain, corrupting and rendering iinwholesome, the water in the stream below, used for distillation, or for culinary or domestic pur- poses. The general rule of law is, that every man has a right to have the advan- tage of a flow of water, in his own land, without diminution, or alteration in quantity or quality. Nor are we to be understood, as saying, that there can be no diminution or alteration whatever, as that v/ould be denying a valuable use of the water. The use j?f it must be such as not to be injurious to the other proprietors. Each riparian owner has a right to the reasonable use o f the stream, which of course will be judged with regard to public convenience, and the general good. The limitation of these principles, is, either where the appropriation has been for a period of twenty years, which the law deems a presumption of right, or it arises from contract. The case of Crookcr v. Bragg, 10 Wend. 260, decides that a person through whose farm a stream naturally flows is entitled to have the whole pass through it, though he may not require the wliole or any part of it for the use of machinery. The Court say — " Thf dortrine of Ld, F.llrnborough in 6 East., 214, referred to 12 90 ACQUISITION OF PARTICULAR EASEMENTS. Judgment of Story, J. In the Courts of tlie United States, which recognise and profess to be guid- ed by the principles of the Englisli Jaw, this point has received much fuller consideration than in tiie reported decisions of the English Courts. In an elaborate judgment of Mr. Justice Slory, this right to have a stream flow on in its accustomed course is laid down to be a rigiit universally incident to the property in the adjoining land, a right which can only be interfered with by the acquisition of an easement ; and the ordinary rights of the owners of the adjacent land to the natural flow of the stream, are distinguished with great precision from the acquisitions in derogation of the common rights made by an exclusive appropriation of the water. " Prima facie (a), every proprietor upon each bank of a river is entitled to the land covered with water, in front of his bank, to the middle thread of the stream; or, as it is commonly expressed, ad medium Jilum aquce. In virtue of this ownership he has a right to the use of the water flowing over it in its natural current, without diminution or obstruction. But, strictly speaking, he has no property in the water itself, but a simple use of it, while it passes along. The consequence of this principle is, that no proprietor has a right to * 132 use the water to the prejudice of another. It is wholly * immaterial whether the party be a proprietor above or below in the course of the river, the right being common to all the proprietors on the river ; no one has a right to diminish the quantity which will, according to the natural current, flow to a proprietor below, or to throw it back upon a proprietor above. This is the necessary result of the perfect equality of right among all the proprietors of that which is common to all. The natural stream, existing by the bounty of Providence for the benefit of the land through which it flows, is an incident annexed, by operation of law, to the land itself. When I speak of this com- mon right, 1 do not mean to be understood as holding the doctrine, that there can be no diminution whatsoever, and no obstruction or impediment what- soever, by a riparian proprietor, in the use of the water as it flows, for that would be to deny any valuable use of it. There may be, and there must be_ allowed to all, of that which is common, a reasonable use. The true test of lA the principle and extent of the use is, whether it is to the injury of the other^ proprietors, or not. There may be a diminution in quantity, or a retardation or acceleration of the natural current, indispensable for the general and valuable use of the water, perfectly consistent with the common right. The diminu- tion, retardation, or acceleration, not positively and sensibly injurious, by di- minishing the value of the common right, is an implied element in the right of using the stream at all. The law here, as in many other cases, acts with a and approved by Judge Thompson in Palmer v. Mulligan, 3 Gaines, 315, is in ac- cordance with these views." The owner of land above a natural spring has no right to excavate his land so as to injure the owners of land below, who have a right to the use of the said spring and the water running from it. Srnith v. Mams, 6 Paige, 435. (o) Tyler v. Wilkinson, 4 Mason, U. S. R. 397. WATER-COURSES. 91 Judgment of Story, J. reasonable reference to pnblic convenience and general good, and is not be- tra}'ed into a narrow strictness, subversive of common sense, nor into an ex- travagant looseness, which would destroy private *rights. The max- *133 im is applied, sic ulere tuo ut alienum non Icedas. " But of a thing common by nature, there may be an appropriation by gene- ral consent, or grant. Mere priority of occupation of running water, without such consent or grant, confers no exclusive right. It is not like the case of mere occupancy, where the first occupant takes by force of his priority of oc- cupancy. That supposes no ownership already existing, and no right to the one already acquired. But our law awards to the riparian proprietors the right to the use in common, as one incident to the land ; and whoever seeks to found an exclusive use, must establish a rightful appropriation in some manner known and admitted by tlie law. Now this may be either by a grant from all the proprietors, whose interest is affected by the particular appropri- ation, or by a long exclusive enjoyment without interruption, which affords a just presumption of right. By our law, upon principles of public conven- ience, the term of twenty years of exclusive uninterrupted enjoyment has been held a conclusive prestimption of a grant or right. I say, of a grant or right — for I very much doubt whether the principle now acted upon, however in its origin it may have been confined to presumptions of a grant — is now necessarily limited to considerations of this nature. The presumption is ap- plied as a presumption juris et dejure, wherever, by possibility, a right may be acquired in any manner known to be law. " With these two principles in view, the general rights of the plaintiflis can- not admit of much controversy. They are riparian proprietors, and, as such, are * entitled to the natural flow of the river without diminution to * 134 their injurj'. As owners of the lower dam, and the mills connected there- with, they had no rights beyond those of any other persons, who might have appropriated that portion of the stream to the use of their mills ; that is, their rights are to be measured b> the extent of their natural appropriation, and use of the water for a period, which the law deems a conclusive presumption in favor of rights of this nature. In their character as mill owners, they have no title to the flow of the stream beyond the water actually and legally appro- priated by the mills ; but in their character as riparian proprietors, they have annexed to their lands the general flow of the river, as far as it has not been already acquired by some prior and legally operative appropriation. "No doubt, then, can exist as to the right of the plaintiffs to the surplus of the natural flow of the stream not yet appropriated. Their rights, as ripari- an proprietors, are general ; and it is incumbent on the parties, who seek to narrow those rights, to establish, by competent proofs, their own title to divert and use the stream." The negative easement of receiving water in its accustomed course, is that which is most frequently claimed under the general denomination of a water course. 92 ACQUISITION OF PARTICULAR EASEMENTS. No title by mere occupancy. As an easement is soinetliing superadded to the ordinary rights of property, and it is incumbent on the claimant thus seeking to cast a burthen upon his *135 neighbor to prove his title to it, it is evidently essential * in order to determine in what manner and what amount of evidence shall be given to sup- port the title, to ascertain strictly what are the bounds of the ordinary rights of property, and where the right claimed assumes that accessorial character which trenches upon the liberty of another. Thus, with reference to the question above alluded to, it becomes important to consider whether the right to receive the water is one of the ordinary incidents of the ownership of the soil, or an additional right claimed as an easement. In discussing this question, a misconception appears to have taken place ; the right to the corporeal thing, water itself, has been confounded with the in- corporeal right to have the stream flow in its accustomed manner (a). Upon this a further error was founded — that the first appropriator of water had a right to continue to divert the stream to the extent of such appropriation, no matter how injurious such diversion might be to the rights of parties who should afterwards seek to use the stream. The question has been much debated — what nature of property existed by law, or could exist, in air, light, and water. It has been attempted to rest that right to the enjoyment of these elements upon the first occupancy of a com- mon right. Thus, Blackstone, in his chapter on " Title by Occupancy," after remarking, that a property in goods and chattels might be acquired by occu- pancy — " the original and only primitive method of acquiring any property at all » — lays it down, that " the benefit of the elements — the lig-ht, the air, and *I36 *the water, — can only be appropriated by occupancy. If I have an an- cient window overlooking my neighbor's ground, he may not erect any blind to obstruct the light; but if I build my house close to his wall, which darkens it, I cannot compel him to demolish his wall, for there the first occupancy is rather in him than in me. If my neighbor makes a tan-yard, a)id was to an- noy, and render less salubrious the air of my house or gardens, the law will furnish me with a remedy ; but if he is first in possession of the air, and I fix my habitation near him, the nuisance is of my own seeking, and may contin- ue. If a stream be unoccupied, I may erect a mill thereon, and detain the wa- ter, yet not so as to injure my neighbor's prior mill or his meadow, for he hath, by the first occupancy, acquired ^ property in the current " (b). The last two illustrations appear to be incorrect, and dii'ectly at variance with the latfer decisions upon this subject (c). Even if it be conceded that these elements are, by the law of England, still in common, and subject to be made property by occupancy, analogy to the rules which govern the acquisition of property by this means, points out (a) Mason v. Hill, 5 B. & Adol. 19 ; 2 Nev. & M. 747. (b) 2 Black. Com. 402. (c) Bliss V. Hall, 6 Scott, 500 post; Mason v. Hill, ^ B. & Adol. :W4, post WATER-COURSES. 93 No title by mere occupancy. that the appropriation of a particular portion could give no right of i)roperty in more than that portion. Tlie abstraction of a measure of water from a flow- ing stream to-day, can give no property in water which may possibly iiereafter form part of the stream, but wiiich is now on the mountains. The present re - ception of light by a window cannot give a prospective property in the light itself, which * will pass through the window to-morrow, and which * 137 has not yet emanated from the sun. The right principle to be collected from the authorities appears to be — That continued beneficial enjoyment of a running stream is evidence of the right to have the stream run on in its accustomed course ; and that no one can in- terfere witli such accustomed course unless justified by an easement to do so. Tho material question, therefore, is, what is such a beneficial enjoyment as to vest this right; whether the simple fact of the water running in an ancient channel to and througli land, is sufficient to confer upon the owner of it this right to prevent his neighbor's interference ; or whether there must be some more direct and tangible perception of the benefit of the water ; and if so, whether a single act of such perception is sufficient ; or whether such percep- tion of benefit must be continued and repeated during such a period of time as would be requisite in general to confer an easement. Upon this latter branch of the question another point arises, — whether the act, or acts, of per- ception give a right to claim the benefit of the entire stream, or to such an extent only as may be sufficient to continue the enjoyment already bad. Thus, for instance, if a stream runs through the lands of two neighboring pro- prietors, does that, per se, give the right to the owner of the lower land to have the stream flow on without interruption, and, consequently, to maintain an action against the proprietor above for any diversion of the water by him ; or is it necessary that he must previously have used the water, as by means of a mill, or in some similar manner ; and, * if so, must such usage have * 138 subsisted for the time required to give an easement : and further, if such mill requires only one half the usual supply of water of the stream, can he main- tain an action for any diversion of the stream so long as sufficient water is left to turn his mill. The authorities seem now clearly to have settled, that, if the stream be of sufficient antiquity, a single act of perception of the benefit of it is enough to give a right to the owner of the land to insist upon the stream running on in its accustomed course ; at all events, to such an extent as may be necessary for the continuance of such enjoyment (a). As it cannot be denied that the right to have water run on in its accustomed course depends, in the absence of any express stipulation, upon antiquity of enjoyment, it follows, that a recent act of perception of the benefit of tlie (a) Bealey v. Shaw, 6 East, 208 : Williams v. Morlnnd, 2 B. & Cr. 913 ; 4 Dowl &. R. .583. 94 ACQUISITION OF PARTICULAR EASEMENTS. No title by mere oecupancy. Stream cannot in itself be sufficient to confer the easement ; nor is it easy to see how the single act of perception can g'we such additional force to the ev- idence of the antiquity of the stream, as to make it afford a presumption of an easement, supposing the mere antiquity of the stream unaccompanied by proof of user, could not give rise to such a presumption. This would seem to show that the right to the flow of water is quite inde- pendent of any such act of perception ; but applying the well-known rule of law, that an action on the case cannot be maintained for a tortious act, unless * 139 the plaintiff shows some actual * damage resulting from such act to himself (oj, there is authority to the effect, that it is incumbent on the party complaining of the diversion of a stream, to show that he has sustained some damage thereby (b) ; he must show that he has already applied the stream to some useful purpose, with which the diversion interferes (11). Even supposing, however, this to be law, it is clear that every proprietor of land along the stream has, as soon as he has applied the water to a benefi- cial purpose, a right to maintain an action against any person who diverts it unless the person so diverting it has acquired a prescriptive right to do so ; and that such action may be maintained for continuing the diversion, although it originally took place before any such beneficial application was made ; as, for instance, if a party erects a mill, and thereby interferes with the course of a stream, he is liable to an action for such diversion at the suit of an}' proprie- tor of land lying lower down the stream, although the latter has applied the water to a beneficial purpose only one day before the time requisite to give the owner of the mill a prescriptive right to the water (c). If the mill, or other mode of occupation of the water, be ancient, no doubt exists upon the authorities as to the owner's right of action for any obstruc- tion (d) (12). And the decisions appear equally clear for the more limited *140 proposition, " That the a])plication of a stream *to any useful pur- pose gives a right to have the stream run on in its accustomed course, as far, at least, as is necessary for such application." In Cox v. Matthewf (c), it (a) Masonv. Hill, 3 B. & Adol. 304 ; 2 Nev. & M. 747. (6) Williams v. Morland, 2T\. &, Cr. 913; 4 Dowl. & R. 533 (c) Beahy v. Shaic, 6 East, 208 : Mason v. Hill, 3 B. & Ado' 301; 2 Nev. «fc. M. 747. (d) Comyns' Dig. Action on the case for a Nuisance, (c) Ventris, 237. See also Luttrel's case, 4 Rep. 86. (11) Diversion of leater, action for damages though hut nominal. — Where one wrongfully diverts water from the plaintiff's mill, the latter is entitled to maintain his action therefor to recover nominal damages, though 'ho actual injury to the mill has been sustained. Butman v. Husseij, 3 Fairf. R. 407 — 16 Pick. 241. (12) The owner of an ancient mill has the right to have the water flow to his mill even against an owner of land above ; and if the latter diverts the water for the purpose of irrigating his land, the former may remove the obstruction if it prejudices! the working his mill. Colburn v. Richards 13 Mass. 420. WATER-COURSES. 95 No title by mere occupancy. Bealey v. Shaw. is said by Lord Hale, "If a man has a water-course running through his ground and erects a mill upon it he may bring an action for diverting tiie stream and not say antiquum molendinum ; and upon the evidence it will appear whetlier tiie defendant hath ground through which the stream runs before the plaintiff's, and that he used to turn the stream as he saw cause, for otherwise he cannot justify it, though the mill be newly erected." In Prescott v. Phillips Caj, Mr. Serjeant ^rfaiV ruled, "that nothing short of twenty years' undistur- bed possession of water diverted from the natural channel, or raised by a weir, could give a party an adverse right against those whose lauds lay lower down the stream, and to whom it was injurious, and that a possession of above nineteen years, which was shown in that case, was not sufficient." In Bealey v. Shaw (6/ the mills and works of the plaintiff and defendant were situated on the banks of the river Irwell. The persons under whom the defendants claimed had an ancient weir across the stream, by means of which they had an easement to divert a certain quantity of water. The plain- tiffs erected a mill lower down, to supply which he used the portion of water which remained undisturbed by the weir. After he had continued to do so for four years, the defendants enlarged their weir, in 1791, in such a manner as * to divert an additional quantity of water, to the injury of the * 141 plaintift''s mill, and for this diversion the action was brought. At the trial of the cause, Mr. B. Graham considered " that the important period for the jury to attend to, as to the question of right, was in 1791, when it was clear that an increased quantity of water had been drawn by the defendants from the river by means of the then newly enlarged and deepened sluice, before which time the plaintiff's works had been erected, and he was in the enjoyment of so much of the water as had not been before appropriated by those under whom the defendants claim ; that persons possessing lands on the banks of rivers had a right to the flow of water in its natural stream, unless there existed be- fore a right in others to enjoy or divert any part of it to their own use; that every such exclusive right was to be measured by the extent of its enjoyment, and if the defendants had in 1791 taken more water from the river than had Although no mill is actually in operation on an ancient mill-site, no person can erect another mill below so as to injure the site unless he shows an entire aban- donment of the upper mill. Hatch v. Dicight. 17 ib 296. The peaceable and e.xclusive use of water, under a claim of right for more than 20 years unexplained, is conclusive evidence of a right in the party so enjoying it. Cook V. Hull, 3 Pick. 269. A diversion of the water which issues from the spring for irrigation, if continued for 20 years, will be presumptive evidence of a grant. Smith v. Mams. 6 Paige 435. (a) Cited in Bealey v. Shaw, 6 East, 213, and recognised by the Court of K. B. in Mason v. Hill, 5 B. & Add. 25 ; 2 Nev. «& M. 747. (h) 6 East, 208. m ACQUISITION OF PARTICULAR EASEMENTS. No title by mere occupancy. Bealey v. Shaw. ever been done by themselves or those under whom they claimed, after the plaintiff had appropriated what was before left for himself, by means of which his works were injured, tliis was a damage to him, and the continnance by tlie defendants, who succeeded to the premises of the sluice so deepened and enlarged was a continuance of the injury for which the action lay." A verdict having been found for the plaintiff on this ruling, a new trial was moved for, on the ground that " the evidence of exchisive enjoyment by the defendants, and those from whom they claimed, to as much of the water as tlicy had occasion for, increased from time to time, as more was wanted from 1794 downwards, was evidence to be left to the jury, of their exclusive *142 right to the whole of the river water ; * and that any other person erecting a mill afterwards on the same stream, must take it subject to the defendants' prior right to use the whole, and could not acquire an adverse title against it under twenty years' quiet enjoyment." The before-mentioned cases of Cox v. Mutthews and Prescoit v. Phillips were referred to in argument. Lord Ellenborovgh^ in delivering his judgment, said, " I see no ground for disturbing the verdict. If the whole evidence were left to the jury, as stated by the learned judge, there can be no question upon it, and if the verdict had been for the defendant, it could not have been sustain- ed. The general law as applied to this subject is, that, independent of any par- tial enjoyment used to be had by anollier, every man had ilie right to have the advant- age of a floio of water in his own land, loithoui diminution or alteration ; but an adverse right may exist, founded on the occupation of another; and though the stream be either diminisJjed in quantity, or even coriupted in quality, as by means of the exercise of various trades, yet if tiie occupation of the party so taking have existed for so long a time, that will raise the presumption of a grant, the other party whose land is below must take the stream subject to such adverse vight. Here it ajjpears, from 1724 downwards, there has been a partial enjoyment of the water of the river by those occu])ying the defend- ants' premises, by means of a weir of a given height, and a sluice of given dimensions. In this state of things the plaintiff, in 1787, comes to a spot low- er down the stream, and erects a weir, mill, and other works on his own land, and enjoys the rest of the water which the defendants had not been accustom- ed to divert, andt his he does for four years, without objection from any person.* *143 Suppose the question had arisen, then, on that enjoyment by the plain- tiff, ot what I may say was less than his natural right, of a right abridged by the defendants' prior occupation of a part of the river for their own purposes, what objection could have been made to it ? How could it have been shown that the occupiers of the defendants' premises were then in possession of all the water, when it is apparent that their use of it was not increased so as to deprive the plaintiff of the benefit of it till 1791, when they enlarged their works ; and for the very purpose of appropriating to themselves more of the wrater, they enlarged their sluice." Grose, .)., added, "The verdict i.s neither Rgainst law nor fact. The plaintiff had a right to all the water flowing over I WATER-COURSES. i: complained of. The defendant, therefore, can have no right to turn the water l»ack upon the p]aintiff''s mill. The change of the wheel can make no differ- ence, because, at the time it was done, it was ccrtaiidy lawful for the plaintiff to make the alteration. TJien, if that be so, the defendant by his subsequent act cannot deprive the plaintiff of an advantage, which he has already lawfully acquired." The case of Williams v. Morland (a) has been supposed* to be some- *148 what at variance with the doctrine laid down in the cases already cited; but when viewed with the light thrown upon it by more recent decisions (6), it appears to present nothing inconsistent with the principle already laid down ; though it may be conceded, that some of the expressions, made use of by the learned judges in that case are rather ambiguous. The declaration in that case stated, "That the plaintiftj by reason of a of a supply of water, but tliat the natural course of the stream- was altered, and that the water was caused to flow with greater impetuosity against his (a) 2 B. & Cr. 710 ; 4 D-wl ».V R. .',83. (Ii^ See J/«5cre V. /////, ■', H. iV.. Adol 1 : -2 Nev. iV M. 71/ lOa ACQUISITION OF PARTICULAR EASEMENTS. No title by mere occupaitcy. Liggins v. Inge. Wright v. Howard. lands, wlier^eby tbe.baiiks vr^'.re, injured, and as the jury had found that the bank^ were lio; j'rijufvd hy^,s>,ioh.flo.\ving of the water, the defendant was en- tiled to a verdict. Liberty, hoiv ever, was given to the plaintiff to move to enter a verdict for him ; but the rule nisi was discharged without hearing the defendant's counsel. . ; » , . ' The true ^roqnd of. the decision of the Court of King's Bench in this case appears toi 'm,6. thci.t taken by the learned judge at Nisi Prius, viz. that the ac- tion, waS. brought without reference to any easement at all, for an alleged .vaong'ful act of the defendant in throwing back water on the plaintiff's land, and injuring his banks; aground of action that totally failed in proof (a). The observations of the learned judges, as to the general law of flowing water, were totally uncalled for by the question then before the Court. "Flowing water," said Bayleij, J., " is originally jottWio' juris ; so soon as it is approi)ri- ated by an individual, his right is co-extensive with the beneficial use to which he appropriated it, subject to that right; all the rest of the water remains j9m6- licijuns." In Liggins v. Inge (6), already cited, the precise question now treated of did not arise : the original right of the plaintiff to the flowing water was not deni- *150 ed, and the case turned entirely on the effect of a parol license. *In the judgments in Williams v. Morland, as well as in Liggins v. Inge, there are dicta to the effect, " that, by the law of England, the possessor who first ap- propriates any part of water flowing through his land to his own use, has a right to the use of so much as he then appropriates against any other:" but more recent decisions, in which all the authorities have been elaborately re- viewed and considered, have established that this position is correct only if taken with the qualification, " that, by such appropriation, no greater right is claimed than to a flow of water in its usual and accustomed course ;" it being clearly settled, that no appropriation, except for such a period as will confer an easement, can diminish the natural rights of other parties possessing lands along the course of the stream. " The right to the use of water," said Sir /. Leach, in If right v. Howard (c), " rests upon clear an settled principles ; prima facie, the proprietor of each bank of a stieam is the proprietor of half the land covered by the stream, but there is no property in the water. Every proprietor has an equal right to use the water which flows in the stream, and consequently no proprietor can have the right to use the water to the prejudice of any other proprietor. Without the consent of the other proprietors who may be affected by his ope- rations, no proprietor can either diminish the quantity of water, which would («) See per Curiam in Mason v. HiU, 5 B. «fc Adol. 20 \ 2 Nev. & M. 747 (b) 7 Bing. 682 ; 5 Moo. & P. 712. (c) I Sim. &. Stuart, 190. VVATER-COURSEiB. 101 No title by mere occupancy. Wright v. Howard. Mason v. Hill. otherwise descend to the proprietors below, or throw the water back upon the proprietors above. Every proprietor wlio claims a right *eitlier to *I51 throw the water back above, or to diniiiiisli the quantity of water whicli is to descend below, must, in order to maintain his clain), either juove an actual grant or license from the proprietors affected by iiis operations, or must prove an uninterrupted enjoyment of twenty years." The learned Judge then add- ed, "that an action will lie at any time within twenty years where injury bap- pens to arise in consequence of tlie new puri)ose of the party to avail himself of bis common right" (a). The case of Mason v. Hill {b), which may be considered as having settled the law on this point, came twice before the Court of King's Bench, and on both occasions elaborate judgments were pronounced, both fully sanctioning the principle, " that if the owner of land adjoining a stream has once appro- priated the water to a beneficial purpose, he may maintain an action against any person diverting it from its usual course, though such diversion be the continuation of an act done previous to that beneficial appropriation on his part, provided such diversion has not continued for a sufficient length of time to confer an easement." The declaration stated, " that the plaintiff' was lawfully possessed of a small manufactory and premises, and by reason thereof ought to have had and eft- joyed the benefit and advantage of the water of a certain * stream, * 152 which had been used to run and flow, and of right ought still to run and flow, to his mill, Sec, in great purity and plent}', to supply the same with water for working, using, and enjoying the same, and for other necessary purposes ; that the defendants, by a certain dam and obstructions across the stream above the plaintiff''s premises, impounded, penned back, and stopped the water, and by pipes, strles, &c., diverted it from the plaihtiff''s premises, and prevented it from flowing along the usual and proper course ; and Anther, that the defend- ants injuriously heated, corrupted, and spoiled the water, so that it became of no use to the plaintiff, whereby he was prevented from using his mill and premises in so extensive and beneficial a manner as he otherwise would have done." At the trial before Bosanquef, J., the following appeared to be the facts of the case. " The plaintiff' and the defendants had land contiguous to the stream ; the land of the defendants being situate on a part of the stream above the land of the plaintiff". The stream acted as a sewer to part of the town of Newcastle under Lyne, and the water was consequently foul and muddy ; it had been unprofitable to both parties until it was diverted by the defendants: this diversion took place in 1818, by the defendants erecting a weir or dam across the stream at the part contiguous to their own land. By (a) Rex v. Trafford, 1 B. & Add. 874 ; S. C. in error, 8 Bing. 204 ; 1 Moo. &, Scoll, 401 ; 2 Cr. & J. 265 ; which appears to have been compromised : Menzies- v The Marquis of Breadalbane, 3 Bligh, N. S. 414. (h) 3 B. & Adol. 304 ; 5 B. & Adol. 1 ; 2 Nev. & M. 747. 102 ACQUISITION OF PARTICULAR EASEMENTsj. — ; #- No title by mere occupancy. Mason v. Hill. means of this weir, and of ciianncls and reservoirs made in their land, great part of the water was conveyed to certain buildings belonging to them at some distance from the weir, and there used as part of the supply of water neces- sary for a steam engine. About ten years after this diversion, the plaintiff * 153 made a channel in his land * contiguous to the stream, for conveying the water to some buildings belonging to him at a little distance from the stream, for the purpose of some process of manufacture not previously car- ried on there. Some attempts at accommodation between the parties took place, but were ineftectiial or unsatisfactory, and therefore the action was brought: the plaintiff's works were occasionally suspended for want of the water diverted by the defendants, and which, after it had been used by them, was suffered to pass away into a level below the plaintiff's works. It was contended on the part of the defendants, that as they had first ap- propriated the use of the water in the sewer to beneficial ])urposes without injuring the plaintiff", they had acquired a right thereto, and were not answer- able for the diversion ; and Williams v. Moiiand was cited. The learned Judge acting ujion that authority directed the jury to find a verdict for the defendants. In the ensuing term a rule was obtained for a new trial, on the ground that the defendants, who had diverted the water, could acquire no right to have it flow in its new channel by mere appropriation without twenty years' unmo- lested enjoyment. Cause having been shown against the rule, the Court took time to consider their judgment, which was afterwards declared by Lord Tenlerden. After stating the facts of tlie case, his Lordshij) proceeded, " In this state of things the present action was brought; and for the defendants it was insisted, that they, having first approjjriated the water beneficially to their *154 use, at a time when the appropriation was not injurious to the *plain- tiff, had a right to the water and to the use of it, notwithstanding the diver- sion had, by subsequent acts of the plaintiff, become injin-ious to him. The plaintiff, on the other liand, insisted that the defendants tlid not, nor could by law, acquire a right to the water by a diversion and enjoyment for a period short of twenty years. The several decisions and dicta of learned judges on this subject were quoted at the bar, and need not be repeated. It appears to have been held that a person could not coniplain of a diversion or obstruc- tion of water, from which, at the time of his complaint, he suffered nothing ; which seems to have been on the ground, that in such a case it was injuria sine damno. It is not now necessary to say whether such a principle should be admitted. The only decision upon a question like that in the present case, is the judgment of the present Master of the Rolls, then Vice-Chancelor, in the case of If rigid v. Howard (a). This jiulgnjcnt is ex[>ressed in language so {terspicuous and comprehensive, that I shall here quote it." His Lordship then cited the judgment of the blaster of the Rolls as abo\c (a) 1 Sua. & Stii. H'O, WATER-COURSES. 103 r^ — r No title by mere occupancy. Mason v. Hill. given (a), and concluded by saying, "We all agree in the judgment thus iln- livered ; and upon the autiiority of that decision and the reasoning of tiic learned Judge, \vc are of opinion, that the defendants did not acquire a right by their appropriation against the use which the plaintiff afterwards sought to make of the water; and consequently the rule for a new trial must be made absolute." On the second trial the jury found a special vfcrdict, the substance of which is set out in the judgment of * the Court, which was delivered by * 155 Lord Deiunan, C. J., after time had been takcu by tiie Court to consider. Af- ter stating the pleadings, his Lordship proceeded as follows : — " The substance of the special verdict is this : — The defendants' mill was erected in 1818; the plaintiff's in 1823, on a piece of land, the former owner and occupier of which had, for twenty years prior to 1818, appropriated the water of the stream and springs for watering his cattle and irrigating that land. " At the time when the defendants' mill was erected, the then owner and occupier of the plaintiff's land gave a parol license to the defendants to make a dam, at a particular* place above, where the Silchwell Tree stood, and to take what water they pleased from that point to their mill, which water was so tak- en, and returned by pipes into the stream, above the spot where the plaintiff's mill was afterwards erected. "In 1818 the defendants conducted part of the water of the Over Caned Springs, which had before flowed into the stream, into a reservoir for the use of their mill. " After the plaintiff erected his mill, namely, in 1828, he appropriated to its use all the surplus water, viz. that which flowed over and through the dam ; that from the Over Canal Springs, which was not conducted into the reser- voir; and all from the Sitchwell Spring (which was another feeder of the brook) ; and also that which was returned by the defendants into the stream. " In January 1829 the plaintiff" demolished the dam at the Sitchwell Spring. The defendants erected a new dam lower down, and by means of it diverted from the * plaintiff's mill, at some times, all the stream, including all * 1.56 the water so appropriated ; at others, a part of it, and returned the remain- der in a heated state into the stream. "And the questions upon this special verdict are, — " Whether the i)laintiff is entitled to recover for the diversion of the whole water of the stream, or of any and what part of it, or for the heating of the part returned ? " That the plaintiff has a right to a verdict for the injury sustained by the abstraction of the ivhole of the surplus water, and by the abstraction of part and the heating of the remainder of that surplus water, does not admit of the least doubt. In any view of the law on this subject,— whether the right to (a) Ante, p. InO. 104 ACQUISITION OF PARTICULAR EASEMENTS. No title by mere occupancy. Mason v. Hill. the use of flowing water be in the first occupant, as the defendants allege, or in the possessor of the land through which it flows in its natural course, as is contended on the other side, — the jjlaintiff" was entitled to this surplus, for he filled both characters ; he was the first occupant of it, and the owner and oc- cni)ier of the land through which it flowed. In this respect the case is ex- actly like that of Bealey v. Shaw (a). " The learned counsel for the defendants argued, that inasmuch as the plain- tiflf pulled down the dam at the Sitchwelt Tree, in consequence of which the new dam was erected, he must be considered as the author of the misciiief, and has no right to complain of it. It is, however, quite impossible to 's\i^- tain such a position. If the plaintiff" committed a wrongful act in demolish- * 157 ing the dam, the defendants might have restored it, or * brought an action ; they had no right to construct another at a different place, and by means of it abstract more water than the other did. " The remaining questions are, whether the plaintiff" can recover, in respect of the abstracting, or the injury by heating, of that portion of water which was before diverted by the license of the then owner and occupier of the plaintiff''s field ; and, secondly, in respect of that portioij of the Over Canal Springs which was conveyed iu 1818 to the defendants' i-eservoir ; both of which portions have been at one time entirely, and at another partially ab- stracted, and in the latter case returned in a heated state into the brook: and we are of opinion that the plaintiff" is entitled to recover in respect of both. "As to the first of these portions, the defendants contend that the plaintiflT has no right of action, because the former owner and occupier of his land gave an irrevocable license by parol to the defendants to divert so much wa- ter by the Sitchwell Tree Dam : and to prove that a parol license to divert water, which had been acted upon by the person to whom it was given, and expense occurred in consequence, is irrevocable, the case of Liggms v. Inge (ft) was cited. But, admitting that the license to absti-act the water at that par- ticular point, and by means of that dam, was irrevocable, and therefore that die plaintiflT was a wrongdoer iu pulling the dam down, it by no means fol- lows that the plaintiff" is not to recover for an equal portion of water abstract- * 158 ed at a diflferent place. In the first place, the license * is not general to take away at any point, but at this only ; and in the second place, if the license had been general, to take away at anyplace, it would have been clearly revocable, except as to such places where it had been acted upon, and expense incurred (for it is on that ground only that such a license can be irrevocable); and as it was revoked before the last dam was erected, the defendants could not justify the abstraction of any portion of the water by virtue of the license at such dam. "The last question is, whether the plaintiflT ought to recover in respect of that portion of the water which was diverted from the Over Canal Springs, (a) 6 East, 208. (/') 7 Binoh. Gfi2 ; !> Moo. & P. 712. WATER-COURSES. 105 No title by mere occupancy. Mason v. Hill. and collected in a tank in 1818. This was taken without license, and appro- priated by the defendants to the use of their mills before any other appropri- ation, but has not been so ap[)ropriated for twenty years ; and the i)oint to be decided is, whether the defendants, by so doing, acquh-ed any right to this against tlie plaintiff, through whose Held it would otherwise have flowed in its natural course ; and we are of opinion that thej did not. "This point might, perhaps, be disposed of in favor of the plaintiff, even admitting the law to be as contended for by the defendants, that the first oc- cupant acquires a right to flowing water ; for, by this special verdict, all the the water of the brook is found to have been approjjriated by Ashley the fa- ther, and used for twenty years up to the year 1818, for watering his cattle and irrigating the field, now the plaintiff's. A right to use the water, thus acquired by occupancy, in right of the field, must have passed to the plainiifl", *and could not be lost by mere non-user from 1819 to 1829; and the * 159 total or i)artial abstraction of the water may be an hijury to such a riglit in point of law, though no actual damage is found by the jury to have been sus- tained in that respect. But we do not wish to rest a judgment for the plain- tiff on this narrow ground. We think it much better to discuss, and, as far as we are able, to settle the principle on which rights of this nature depend. "The proposition for which the plaintiff contends is, that the possessor of land, through which a natural stream runs, has a right to the advantages of that stream flowing in its natural course, and to use it when he jjleases, for any purposes of his own, not inconsistent with a similar right in the proprie- tors of the laud above and below — that neither can any proprietor above di- minish the quantity, or injure the quality of water, which would otherwise de- scend, nor can any proprietor below throw back the water without his license or grant : — and that, whctiier tlie loss, by diversion, of the general benefit of such a stream be or be not such an injiuy in point of law, as to sustain an ac- tion without some special damiigc, yet, as soon as the proprietor of the land has api)Iied it to some purpose of utility, or is prevented from so doing by the diversion, he has a right to action against the person diverting, " The proposition of the defendants is, that the right to flowing water is publici juris, and that the first [>erson who can get possession of the stream, and apply it to a useful purpose, has a good title to it against all the world, including the proprietor of the land below, wlio *has no right of ac- *1G0 tion against him, unless such proprietor has already applied the stream to some useful purpose also, with which tlje diversion interferes; and in default of his having done so, may altogether deprive him of the benefit of the water. " In deciding this question, we might content ourselves by referring to, and relying on, the judgment of this Court in tiiis case, on the motion for a new trial (a); but as the point is of importance, and the form in which it is now again presented to us, leads to a belief that it will be carried to a court of er- ror, we think it right to give the reasons for our judgment more at largo. (fA 3 B. & Ad. 304. 14 106 ACQUISITION OB^ PARTICULAR EASEMENTS. No title by mere occupancy. Mason v. Hill. " The position, that the first occupant of running water for a beneficial pur- pose has a good title to it, is perfectly true in this sense, that neither the own- er of the land below can pen back the water, nor the owner of the land above divert it to his prejudice. In this, as in other cases of injuries to real property, possession is a good title against a wrong-doer : and the owner of the land who applies the stream that runs through it to the use of a mill newly erected, or other purposes, if the stream is diverted or obstructed, may recover for the consequential injury to the mill. The Earl of Rutland v. Botvler (a). But it is a very different question, whether he can take away from the owner of the land below one of its natural advantages, which is capable of being applied to profitable purposes, and generally increases the fertility of the soil, even when unapplied, and deprive him of it altogether by anticipating him in its applica- *161 tion to a useful purpose. If this *he so, a considerable part of the value of an estate, which, in manufacturing districts particularly, is much en- hanced by the existence of an unappropriated stream of water with a fall within its limits, might at any time be taken away ; and by parity of reason- ing, a valuable mineral or brine spring might be abstracted from the proprie- tor in whose land it arises, and converted to the profit of another. " We think, that this proposition has originated in a mistaken view of the principles, laid down in the decided cases of Beaky v. Shaiv [b), Saunders v. JVeumian (c), Williams v. Morland {d). It ai)pears to us also, that the doctrine of Blackstone and the dicta of learned judges, both in some of those cases, and in that of Cox v. Mattheivs (e), have been misconceived. " In the case of Bealey v. Shaiv, the point decided was, that the owner of land through which a natural stream ran, (which was diminislied in quantity by having been in part appropriated to the use of works above, for twenty years and more, without objection), might, after erecting a mill on his own land, maintain an action against the proprietor of those works, for an injury to that mill, by a further subsequent diversion of the water. This decision is in exact accordance with the pxoposition contended for by the plaintiflT, that the owner of the land through which the stream flows, may, as soon as he has converted it to a purpose producing benefit to himself, maintain an action *162 against the owner of the land above, for a subsequent *act, by which that benefit is diminished ; and it does not in any degree support the position, that the first occupant of a stream of water has a right to it against the pro- prietor of land below. Lord Ellenborough distinctly lays down the rule of law to be, that, 'independent of any particular enjoyment used to be had by an- other, every man has a right to have the advantage of a flow of water in his own land, without diminution or alteration. But an adverse right may exist, founded on the occupation of another ; and though the stream be either di- minished in quantity, or even corrupted in quality, as by means of the exer- (ffl) Palmer, 290. (i) 6 East, 208. (t) 1 B. «fc A. 258. (d) 2 B. & C. 913. (c) 1 Ventr. 137. WATER-COURSES. 107 No title by mere occupancy. Mason v. Hill. cise of certain trades, yet if the occupation of the party so taking or using it have existed for so long a time as may raise the presuini)tiou of a g^rant, the other party, whose land is below, must take the stream, subject to such ad- verse right.' Mr. Justice Lawrence confirms the opinion of Mr. Baron Graham on the trial, that, 'persons possessing lands on the banks of rivers, had a right to the flow of the water in its natural stream, unless there existed before a right in othes to enjoy or divert any part of it to their own use.' Mr, Justice Le Blanc, in his judgment, says as follows : — 'The true rule is, that, after the erection of works, and the appropriation, by the owner of land, of a certain quantity of the water flowing over it, if a proprietor of other land afterwards takes what remains, the first-mentioned owner, however he might, before such second appropriation, have taken to himself so much more, cannot do so afterwards ;' and this expression, in wiiich, in truth, that learned judge cannot be consider- ed as giving any opinion upon the eflTect of a prior appropriation, is the only part of the case, which has any tendency *to support the doctrine *163 contended for by the defendants. " The case of Saunders v. JVewman (a) is no autliority upon this question, and is cited only to show, that Mr. Justice Holroyd quotes the opinion of Le Blanc, J., above-mentioned ; and he confirms it, so far as this, that the plain- tiff, by erecting his new mill, appropriated to himself the water in its then state, and had a right of action for any subsequent alteration, to the prejudice of his mill ; about which there is no question. "The last and principal authority cited is that of Williams v. Morland {b). " The case itself decides no more than this : that the plaintiff, having in his declaration complained that the defendants had, by a floodgate across the stream above, prevented the water from running in its regular course through the plaintiff's land, and caused it to flow with increased force and impetuosity, and tiiereby undermined and damaged the plaintiff"'s banks, could not recover, the jury having found that no such damage was sustained. The judgments of all the judges proceed upon tiiis ground ; though there are some observations made by my brother Bayley, which would seem at first sight to favor the proposition contended for by the defendants. " These observations are, that 'flowing water is originally publici jwis. So soon as it is appropriated by an individual, his right is co-extensive with the beneficial use to which he appropriates it. Subject to that right, all the rest of the water remains publici juris. The party who obtains a right to the ex- clusive enjoyment* of the water, does so in dei'ogation of the primi- *164 live right of tiie public. Now, if this be the true character of the right to water, a party complaining of the breach of such a right ought to show that he is prevented from having water which he has acquired a right to use for some beneficial purpose (c).' " The dictum of Lord Chief Justice Tindal in Liggins v. Inge {d) is to this (a) 1 B. «& A. 258. (h) 2 B. & C. 910. (<•) 2 B & C. 913. (d:) 7 Bing. 692. 108 ACQUISITION OF PAIt'llCULAK EASEMENTS. No title by mere occupancy. Mason v. Hill. effect :—' Water flowing in a stream, it is well settled by the law of England, \s publici juris. By tlie Ronutn l.iw, niiining water, light, and air, were con- sidered as some of those things which were res communes, and which were defined, things, the |iro]ierty of which belongs to no person, but the use to all. And by the law of England, the person who fust ap|)ropriates any part of this water /oit'mg- through his land to liis own use, has the right to the use of so much as he then appropriates, against «n?/ other ;' and for that he cites Beaky V. Shaw and Others (a), which case, however, is no authority for this position, as far as relates to the owner of the land below ; and ])robably, therefore, the Lord Chief Justice intended the expression 'any other' to apply only to those who diverted or obstructed the stream. To these dicta may be added the passage from Biackstone's Commentaries, vol. ii. p. 14 :— ' There are some few things which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common, being such wherein nothing but an usufructuary pioperty is ca})able of being had ; and therefore *165 they stiil belong to the first occupant, during the *time he holds pos- session of them, and no longer. Such (among others) are the elements of light, air, and water, which a man may occupy by means of his windows, his gardens, his mills, and other conveniences : such, also, are the generality of those animals which are said to be ferae naturae, or of a wild and untameable disposition, which any man may seize upon and keep for his own use or pleas- ure. All these things, so long as they remam in possession, every man has a right to enjoy without disturbance ; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterwards.' "And, 2 Biackstone's Commentaries, p. 18. " Water is a moveable wander- ing thing, and must of necessity continue common by the law of nature ; so that I can only have a tempora.iy, transient, usufructuary jiroperty therein ; wherefore if a body of water runs out of my pond into another man's, I have no right to reclaim it." "None of these dicta, when properly understood with reference to the cases in which they were cited, and the original authorities in the Roman law, from which the position that water is publici juris is deduced, ought to be consid- ered as authorities, that the first occupier or first person who chooses to ap- propriate a natural stream to a useful purpose, has a title against the owner of land below, and may deprive him of the benefit of the natural flow of w^ater. "The Roman law is (2 Inst. tit. 1, s. 1,) as follows: — ' Et quidem naturali jure, communia sunt omnimn hfec : aer, aqua profluens, et mare, et per hoc *166 littora *maris.' It is worthy of I'emark, that Fleta, enumerating the res communes, omits 'aqua jjrofluens,' Lib. iii., ch. 1 .Vinnius, in his commentary on the Institutes, explains the meaning of the text, — ' Communia sunt, quae, a natura ad omnium usuin prodita, in tudlius adhuc ditionem aut dominiun) perve- (a) 6 East, 208. WATER-COURSES. 109 k No title by mere occupancy. Mason v. Hill. iioruiit: Hue pertinent prsecipnc acr et marc, quae cum propter immensita- tem, tuni propter usum, qucm in commune omnibus debent, jure gentium di- visa non sunt, sed relicta in suo jure et esse primasvo, idcoque nee dividi potue- runt. Item aqua profluens, hoc est aqua jugis, quae vel ab inibribus collecta, vel e venis tcrrse scaturiens, perpetuum fluxum agit, flumenque aut rivum per- ennem facit. Postremo propter mare, etiam littora maris. In hisce rebus duo sunt, qua; jure natural! omnibus competunt. Primum communis omnium est harum rerum usus, ad quern natura comparatoe sunt: turn siquid earum i"erum per naturam occupari potest, id eatenus occupantis fit, quatenus ea occupati- one usus iile promiscuus non teditur.' And he proceeds to describe the use of water, ' aqua profluens ad lavandum et potandum unicuique jure naiurcdi concessaJ '' Tlie law as to rivers is, ' flumina autem omnia et portus pwi/ica sunt, ideo- que jus piscandi omnibus commune est in portu fluminibusque.' And Vinnius, in his commentary on this last passage, says, ' unicuique licet injlumine publico navigare et piscari.' And he proceeds to distinguish between a river and its wa- ter : the former being, as it wei-e, a perpetual body, and under the dominion of those in whose territories it is contained ; the latter being continually chang- ing, and incapable, whilst it is there, of becoming the subject of pro^.erty, like the air and sea. " * In the Digest, book 43, tit. 13, in j)ublic rivers, whether navigable *167 vr not, it appears that every one was forbibden to lower the water or narrow the course of the stream, or in any way to alter it, to the prejudice of those who dwelt near. Tit. 12 distinguishes between public and private rivers ; and in section 4, it is said, that private I'ivei'S in no way differ from any other private place. " From these autliorities, it seems that the Roman law considered running water, not as a bonum vacans in which any one might acquire a property ; but as public or common, in this sense only, that all might drink it, or apply it to the necessary purposes of supporting life ; and that no one had any property in the water itself, except in that particular portion, which he might have ab- stracted from the stream, and of which he had the possession ; and during the time of such possession only. " We think that no other interpretation ought to be put upon the passage in Blackstone ; and tliat the dicta of the learned Judges above referred to, in which water is said to be publici juris, are not to be understood in any other than this sense ; and it appears to us that there is no authority in our law, nor as far as we know, in the Roman law, (which, however, is no authority in ours), that the first occupant (though he may be the proprietor of the land above) has any right, by diverting the stream, to deprive the owner of the land below, of the special benefit and advantage of the natural flow of water therein. "It remains to observe upon one case which was cited for the defendants (Cox V. Matthews (a), in* which Lord Hale said, ' if a man hath a wa- * 168 (a) 1 Ventr. 237. 110 ACQUISITION OF PARTICULAR EASEMENTS. No title by mere occupancy. Mason v. Hill. tercourse running through his ground and erects a mill ujjon it, he n)ay bring liis action lor diverting the stream, and not say, antiquum rnoiendinum ; and upon the evidence, it will appear whether the defendant hath ground tiirough which the stream runs before the plaintiff's, and that /le used to turn the stream as he saw cause ; for otherwise lie cannot justify it, though tiie mill be newly erected.' What is said by Lord JJak is perfectly consistent with the propo- sition insisted upon by the jtlaintiff; and the defendants in the supposed case would have no right to divert unless they had gained it by prescription (which is the meaning of Lord Hale), or, according to the modern doctrine, until the presumption of a grant had arisen. "And this view of the case accords with the law, as laid down by Serjeant Adair, Chief Justice of Chester, in Pre^cott v. Phillips {a), and by Lord Elle.n- borough in Bealey v. Shaw [h], and by the Master of the Rolls in his luminous judgment in Howard v. Wnght (c.) " We are, therefore, clearly of opinion, that the plaintiff is entitled to recov- er in i-espect of the abstracting of the water taken from tlie Over Caned Springs, as well as the other injuries complained of; and for which damages have been assessed by the jury. "As to the right to recover for the injury sustained, by the water being re- turned in a heated state, there can be no question. " Whether he could have maintained an action before he had constructed his mill, or applied the water of the stream to some profitable purpose, we need not decide. It may be proper, however, to refer to two cases not * 169 * cited in the argument. In Palmer v. Keblethwaite [d) the declaration merely stated that the water, used and ought to nm to the plaintiff's mill ; and Lord Holt said, ' Suppose a water-course run to my ground, and T have no use for it, and one upon another ground divert it before it comes to mine, will an action lie ? Is not this the same ? Must you not lay some use for it ? But you will speak to it again.' In the report of the same case in Skinner, 65., Pollexfen, in argument, said he took it to be a clear case that, the stream being the plaintiff's, the defendant could not divert it, and so held the Court, that an action had lain for diverting the stream, though no mill had been erected. The final result of that case does not appear in the books, and the roll has been searched for in vain. " In Glynne v. JVicholas (e) a similar questionVas raised, which appears from the report of the same case in Comberbatch, p. 43, to have been decided ybr the plaintiff. " It must not, therefore, be considered as clear that an occupier of land may not recover for the loss of the general benefit of the water, without a special use or special damage shown. (a) Cited, 6 East, 213. (i) 6 East, 208. ' (-•) 1 Sim. & Stii. 100. (d) 1 Show. 64. {p) 2 Show. 507. WATER-COURSEB. HI Whether act of appropriation of natural easement necijssary to maintain suit. " But be tlint as it may, the plaintifT in tliis case, who has sustained actual damage, is entitled to the judgment of the Court "(13). It has already been observed, tliat no additional evidence of the right of a party to a flow of water could be derived from the mere fact of his having re- cently appropriated it to a beneficial purpose ; but " it appears to have been held, that a person could not complain of a * diversion or obstruction *170 of water, from which, at the time of his complaint, he suffered nothing, which (13) Riparian property. — The case of King v. Tiffany, 9 Conn. R. 1G2 decides, that the owners of an upper mill have a right to have the water flow off over their land and from their mill as it had been accustomed to flow ; and that, if they suf- fered from such interruption by others, they might recover, although they had not used the water precisely in that manner, for fifteen years. In Buddington v. Bradley, 10 ib. 213, the relative situation of the parties was reversed. The pro- prietors of the banks and mills below, claim, not that the water is set back upon them, but that it is kept from them, and not suffered to flow as formerly. The defendant says, true ; but if you had not altered your race-way, or taken away your reservoir, this would not have hurt you ; (if you had not lowered your ham- mer wheel, it would not have hurt you.) But the Court said : — If the alterations made, in the former case, by the plaintff"s, did not justify the defendants, neither can the alterations made by the plaintiffs (in the present case), justify the defend- ant. The only distinction that exists between the case of King v. Tiffany and this {Buddington v. Bradley,) is, that by the report of that case, it does not ap- pear, that the plaintiffs altered the flowing of the water at all, as they have done in this. It was apparent, however, in the former case, that by lowering their hammer-wheel, they changed their use of the water ; they passed it in a different manner from what they had been accustomed to do. Of course, their claim was not founded upon their enjoyment of it, in a particular manner. The Court in both cases decided, that the plaintiffs, by the use they had made of the water, lost none of their natural rights. The plaintiffs claimed, that they had a right to have the water flow as it had been used to flow upon their own site. The obstruction of the natural course of a stream, is always done at the risk of being answerable in damages to him who sustains a loss thereby. The inquiries, then, are, has the defendant obstructed the natural flow of the water ; and have the plaintiffs sustained an injury thereby ? The defendant, indeed, may protect himself in the obstruction, by an enjoyment for a certain time ; but without that, he can have no defence. In Buddington v. Brad- ley, supra, it appeared, that the plaintiffs, who owned the land through which the water course passed, had, for upwards of fifteen years, used the water for their mill, by diverting it from its natural course, through a race-way to their mill. The defendant, the owner of the land above, afterwards erected on his own land, above the mill of the plaintiff, a dam and mill, which obstructed the natural flow of the water, to the injury of the plaintiffs : Held, that defendant was liable, al- though it appeared that plaintiffs had recently varied the use of the water by dis- using the retervoir, whereby more water was required for their mill ; the jury having found the injury to the plaintiffs. 112 ACQUISITION OF PARTICULAR EASEMENT!^. Whether act of appropriation of natural easement necessary to maintain suit. seems to have been on tlie ground that in such a case it is injuria sine damno fa)." " In order to entitle himself to recover," said llolroyd, J., in Williams v. Mor- land (b), "the plaintiff should show the loss of some benefit, or the deteriora- tion of the value of the premises ;" and Littledcde, J., in the same case, laid it down as law, that « water is of that peculiar nature, that it is not sufficient to allege in a declaration tliat tlie defendant prevented the water from flowing to the plaintiff's premises, the plaiutifi' must state an actual damage accruing («) Per Curiam, Mason v. Hill, 3 B. & Adol. 312. (a) 2 B. & Cr. f these former tenants in common. It is not entirely rcrtnin, what prpciso oh- WATER-COURSES. 1 19 Artificial Easements. up the stream, the water vvhicli, unless so reflected, would, by the force of gravity, pass from it ; or to discharge tlie water upon the land lying lower down the stream, either injured in quality, or with a degree of force greater or less than the natural current. The right claimed by the defendant in Saunders v. JVetvman, already cited, is an instance of the former class of affirmative easements (a). In Wright v. Williams [b), it was held that a right to let off upon the neigh- boring land water which had been used for the precipitation of minerals, and was thereby rendered noxious, was an easement, and might be acquired like any other easement by user. (a) Ante, p. 144 ; 1 B. & Aid. 258. (b) 1 M. &, W. 77. ject the parties had in contemplation, by the use of this language ; but it is quite certain, we think, that they did not intend thereby to curtail any privileges which had been appertained to either the grist-mill or saw-mill, at least, no reasonable construction of the language used, imports any such intent. If we were to in- dulge in conjecture, we might very well believe from the facts in the case, that the grist-mill and saw-mill were ancient, and equally entitled, by prescriptive right, to the use of the water in the stream ; and that the intent of the parties was, to preserve this equality of right unimpaired. The plaintiff having after- wards purchased the old saw-mill and its privileges of Oviatt, became entitled to the whole right. But still the defendant claims, that if the right claimed by the plaintiff has ever existed in him, since said partition, it has become extinguished, by the operation and effect of the deed from the defendant to the plaintiff and Roswell Marsh, da- ted May 21, 1817. By this deed, the defendant conveyed to the plaintiff and the said Marsh, all the land he owned upon said stream, including the trip-hammer shop and the land on which it stands, and where the defendant's dam has since been erected, which causes the obstruction complained of. After the execution of this deed, the plaintiff was sole owner of the grist-mill and privileges, and ten- ant in common with Marsh, of the trip-hammer shop and privileges attached to it. The defendant insists, that the effect of this state of the title, was, to create such a unity of title to these mills and privileges in the plaintiff, as to merge and extin- guish all former or special rights and privileges appurtenant to the grist-mill, and which have never since been restored or waived. Whatever the law might be, if the plaintiff had become sole owner of the trip-hammer shop and privileges, we should hesitate much before we yielded to the claim made here, that his sole and permanent right at the grist-mill had become extinguished, by his becoming tenant in common with another in the up-stream privilege. It is not known, that in cases where the doctrine of e.vtinguishment, by reason of unity of title, applies, it has ever been extended as far as this. We may remark, as we have done be- fore, that the plaintiff and Marsh, by unity of action, might have rendered the grist-mill privilege subservient to the convenience of the trip-hammer shop ; for the plaintiff might have yielded his sole rights for the benefit of the tenants in common. But no such surrender was made or claimed . on the contiary, the co- S20 ACQUISITION OF PARllCULAR EASEMENTS. Artificial Easements. Though every one in building is bound so to construct l]is house as not to overhang his jieighbor's property, and construct his roof in such a manner as *176 not to throw the rain water upon the neighboring hind [n), * yet there appears to be authority in our law for tlie position, that a man may acquire a right, by user, to project his wall or eaves over the boundary line of his prop- ertj', or discharg-e the rain running from the roof of his house upon the ad- joining land. The existence of such a right, both as to the eaves and water dropjiings, is recognized by the Court of Exchequer in Thomas v. Thomas [b). There are ancient decisions, recognizing the same easement, in the case of (a) 11 Hen. 7, f. 257. (i) 2 Cr. M. & Ros. 34. tenants recognized the preferable privileges of the grist-mill, and did not attempt to deny or interrupt them, but suiFered tlie water to flow on, in its accustomed manner, for the use of that mill. But if the plaintiff had become sole owner of the trip-hammer shop, and all the land above his grist-mill privilege, it would not have operated to extinguisli his former rights ; at most, it would only suspend them. Nor do we clearly discover how it could even do this. To give effect to this claim of the defendant, it is ne- cessary, that he should assimilate the plaintiff's rights to mere easements or ser- vitudes; such as rights of way over another's close ; or any other rights which exist on the estate of one man for the benefit of another. In such cases, to be sure, unity of title will frequently either extinguish or suspend the easement. 3 Kent's Com. 360. And such is the case of Mamiing v. Smith, 6 Conn. Rep. 209., upon which the defendant more especially relies ; a case in which the plaintiff claimed a right of diverting the water upon the defendant's land, from its natural course, and of conducting it through the defendant's land to his own. But the present is a case of a very different character. The plaintiff here claims no rights or easements, in the defendant's land. To acquire an easement by user, such user must be adverse, and in hostility to the rights of the owner of the land upon which it is claimed to exist. But the right claimed by tlie plaintiff, if it did not arise from prior occupancy and appropriation of the water, was acquired simply by such user and appropriation for the term of fifteen years, althovigh sucli user was not so adverse as to have been an usurpation of the rights of others. Ingra- ham V. Hutchinson, 2 Conn. Rep. 584. The right claimed by the plaintiff, is a natural right, arising ex jure naturae, and not strictly an easement. There is, also, a distinction between rights wliich are of necessity, and mere easements. The former, altiiough they may perhaps be suspended, during the existence and continuance of unity of title or possession, are not extinguislied by such unity. Noy, 84. JVichoIasv. Chamberlain, Cro. Jac. 121. Bull. N. P. 74. Poph. 172. 3 Bulst. 330. 1 Roll. Abr. 936. WhalUij v. Thomjison ^ ah 1 Bos. & Pul. 371. in.notis. 3 Taun. 24. 2 Chitt. Bla. 26. Chancellor Kent says : » Nor is a water-course extinguished, by unity of possession, and tliis from the necessity of the case and the nature of the subject." 3 Kent's Com. 360. And Mr. Cliit- ty, in considering this subject, remarks, that " tliore is a peculiarity^ ivlnting to ii WATER-COURSES. IQl Artificial Easements. a discharge of water on the neighboring land by means of a gutter or leaden pipe (a). " If a man hath a sue, that is to^say, a spout, above his house, by which the water used to fall from his house, and another levies a house paramount the spout, so that the water cannot fall as it was wont, but falls upon the walls of the house, by which the timber of the house perishes, tliis is a nuisance " [b). These two classes of easements are distinctly recognized by tlie Civil Law, under the head of Urban Servitudes, " that a man shall receive upon his house or land the flumen or stillicidium of his neighbor "(c). "The difference," says Vinnius in his Commentary on this passage, " bc- (a) Ladij Browne's case, cited in Shurij v. Plgotty Palmer, 44G ; Comyn's Dig. Action on tlie case for Nuisance, A. ; Baten's case, 9 Rep. 50, n. (h). (J) Viner, Abridg. Nusance, G. 5, citing 18 Ed. 3. 22 b 5 RolleAbr. Nusans, G. (c) Vt stillicidium vel flumen recipiat quis in ajdcs suas vel in aream vel in cloacam. — I. L. 1. iF. de serv. prajd. claim of this nature, viz., that it never was destroyed, by unity of seisin of the land and water, and of the place in respect of which the use of the water was claimed ; the law admitting an exception to the general rule, on account of the uncontrolable nature of water ; and that the claim to water is not strictly, by grantor prescription, bat ex jure natu7'CE." 1 Chitt. Gen. Pr. 21-5. Judge Story, in reviewing this question and the cases relating to it, in the case of Hazard v. Rohi7ison, 3 Mason 276. expresses very nearly the same sentiments. Upon this examination of these various deeds, we have discovered nothing, by which, in our opinion, the plaintiff is precluded from insisting upon the grist-mill privilege, as it existed in Roswell Marsh, before and at the time of his convey- ance to Tucker, Jewett and Oviatt. We do not believe tliis privilege has been impaired, by any of the deeds read in evidence, nor extinguished, by an unity of seisin or title. Of course, we are of opinion, that the plaintiff's evidence in sup- port of his claim, was admissible. It was, however, suggested, that the deed from the plaintiff and Roswell Marsh to the defendant, dated September 0, 1822, by which they re-conveyed to him the same property which tliey had received from him, by his deed of May 21, 1817, in some way, had impaired the grist-mill privilege, or had conferred upon the de- fendant the rights which he has since claimed to exercise. It sjjould here be rec- ollected, that when this re-conveyance was made, the defendant had not erected the dam and obstruction, of which the plaintiff complains : they did not exist, at that time ; nor had the defendant, at that time,- claimed any thing to obstruct the water, to the injury of the plaintiff; so that tlic dcfond.iut acquired no new or additional righ*, by virtue of tliis deed. ■\ i|uef.iiiiii ')f Miucli iniporlanct'was suggested at tiu-' i)nr, whidi our opinion 1(5 122 ACQUISITION OF PARTICULAR EASEMENTS. Artificial Easements. tvveeu the flumen and the stillicidium is this — the former is the rain falling from the roof bj' drops (jnittatim et stillatim); the Jlumen, is when it is poured * 177 forth in a continuous stream fron^ the * bovver part of the building. The servitude of receiving the sllllicidium exists when my neighbor is com- pelled to receive upon liis house the rain water running from my roof; the servitude of receiving XheJIvmtn, wlien he is comjielitd to leceive the same flowing in a channel or conduit, and falling with force on his house." The Civil, as well as the English law, pi-oliibited a man froni projecting the wall or roof of his house over the boundary line of his neighbor's land, even though, by spouts, or other means, the fall of water therefrom might be pre- upon other controling parts of the case, has rendered it unnecessary for us to de- cide. Tlie plaintiff claimed, that if the rights of Roswell Marsh did not exist in him, the plaintiff, but had been destroyed, by the operation of some of the deeds ; yet that from the 9th of September, 1822, when he and Marsh re-conveyed the trip-hammer, &,c. to- the defendant, until the obstruction complained of, a period of about twelve years, he had used and appropriated the water of this stream, for the use of his saw-mill, standing upon the grist-mill site, without molestation, in its natural channel and course ; and that he had a right and claim to be protected in his appropriation and enjoyment of the water, ut currere solebat ; and that nei- ther the defendant, nor any other person, had a right, either to divert or obstruct the water to his essential injury. Upon this question, there are to be found con- flicting opinions ; and there are many cases which go very far, if not entirely, to support this claim of the plaintiff. 2 Bl. Com. 403. 2 Woodeson, 391. Cox v. Matthews, 1 Vent. 237. Hatch v. Dicight, 17 Mass. Rep. 289. Striker v. Todd, 10 Serg. & Rawle, 69. 3 Kent's Com. 358. Williams v. Moreland, 2 Barn. & Cres. 910. (9 Serg. &, Lowb. 269.) Mason v. Hill, 3 Barn. & Adol. 304. (23 Serg. & Lowb. 76.) S. C. 5 Barn. & Adol. 1. (27 Serg. & Lowb. 11.) Frankum v. Earl of Falmouth, 6 Oarr. &. Payne, 529. (25 Serg. &. Lowb. 526.) Buddington v. Brad- ley, 10 Conn. Rep. 219. King v. Tiffany, 9 Conn. Rep. 166. Palmer x. Mulligan, 3 Caines, 307. Piatt v. Johnson, 15 Johns. Rep. 213. Angell on Water-Courses, 39, 69. Tyler v. Wilkinson, 4 Mason, 401 . Martin v. Bigelow, 2 Aikins' Vermont Rep. 184. 3 U. S. Law Intelligencer, 164. B-idler v. Reynolds, 2 N. Hamp. Rep. 257. Tinkam v. Arnold, 3 Greenl. 120. The defendant also claimed, that admitting the right of the plaintiff, yet as the defendant had also a right, as riparian proprietor, to use the water of the stream, he had a right, reasonably to use it, for the purpose of his trip-hammer shop, even if the plaintiff was subjected to some inconvenience and damage thereby. And exceptions are taken, by the defendant, to the charge of the judge at the trial, because this claim was not recognized by him, as the law of the case. The de- fendant, in support of this claim, relied much upon the case of Piatt v. Johnson, 15 Johns. Rep. 213. It does not become necessary, in this investigation, to sug- gest a doubt of the correctness of any position assumed by the court, in that case ; WATERCOURSES. 120 Subterraneous Channels. vented : but a ri^ht to do so niiglit be acquired by user ; and when sucli pro- jection did not, in any manner, rest upon the nciglibor's soil, it was called jtis projiciendi ; wiiere tlie projection was merely intended to protect the wall, either by creating shade against the heat of the sun, or kee[)ing off the rain, it was the jus protegendi. " There is this difference between the right of project- ing over and that of placing upon the neighbor's property — that the projection is carried out (proveheretiu") in such a manner as not to rest anywhere (nus- quam requiesceiet), as a balcony or eaves; while the thing 'placed upon' is so put as to rest on something, 'as a beam or rafter' (a). By the term water-course, is usually understood a stream of water flowing above ground ; but questions of a similar nature arise with reference to the right to *water flowing in a subterraneous channel. In the case of a *178 well, it is known th»t the sn|^ply of water is in general furnished by percola- tion through the neighboring soil, so that the digging of a deeper well therein will divert the water from its course, and thus dry up the former well. If the right to water thus percolating Is identical with that to water flowing above ground, it is manifest that ancient possession would be unnecessary to confer a title to water flowing to a well, in the course of nature, from a superior ele- vation ; the mere act of sinking the well Would be sufiicient evidence of an intention to appropriate the water flowing beneath his soil. (a) Inter projectum et immissum hoc interesse ait Labeo : quod projectum esset id, quod ita proveheretur ut nusquam requiesceret, qualia mseniana et suggrunda assent ; immissum autem, quod ita fieret ut aliquo loco requiesceret, veluti tigna, trabes, qum immittcrentur. — L. 242. § 1. fF. de v. s. as, in o'ur opinion, none of thejn conflict with any principle recognized by us, in this. We have placed the claims of the plaintiff entirely upon his prescriptive rights, or such as were acquired by an uninterrupted use and appropriation of the water, for more than fifteen years. In the case of Piatt- v. Johnson, Ihe plaintiff relied merely upon prior occupancy ; and the counsel for the defendant notices what he supposed was a material distinction in this particular, and says : " A purchaser of land, over which a stream of water runs, acquires a right to use the water in a reasonable manner, for the ordinary purposes of mills and machinery ; there being no ancient right or prescription in the case. And If, in the reasonable use of the water for such purposes, the owner of land below suffers any damage, it is damnum absque injuria." And Thompson, Ch. J., in giving the opinion of the court, acquiesces in the correctness of this distinction, and justifies the de- fendant in a partial diversion of the water, says : " Nor is there any pretence, that the plaintiff had been so long In the previous use and enjoyment of this stream, as to afford the presumption of a grant of tlie same beyond the bounrlnrles of iiis own land." 124 ACQUISITION OF PARTICULAR EASEMENTS. Subterraneous Channels. The objections lo this view of the case are, that the ancient flow of a stream without interruption by the occui)ant of land above, is evidence of his assent to the continuance of such flow; but that, with regard to under-ground filtra- tions, as their course,— and even their very existence— may be unknown to him, no such presumption ought to be drawn ; because, as has been already shown, such a presumption ought not to be furnished by any enjoyment which is had either " vi— dam— or precario.'" Moreover, supposing such actual knowl- edge to exist, it is diflicult to see in what manner he could prevent the right being acquired ; he could clearly maintain no action ; and, in the majority of instances, he coiild not indicate his dissent by cutting oft' the veins supplying the neighboring well or fountain, without serious detriment to his own prop- erty. A further objection to an easement of this kind arises from the in- definite nature and gceat extent of the obligation which would be imposed by *179 it: instances have occurred *where eaeavations have had the effect of draining land, although at the distance of some miles. In Cooper v. Bai-her (a) the defendant had, for many years past, penned back a stream for the purposes of irrigation, the consequence of which was, that the water percolated through the neighboring soil ; the Court appear to have been of opinion, that no right to cause such percolation was acquired by the user, and that the adjoining owner, on receiving injury from it upon erecting a house, might bring an action for it. A more recent case (&) appears to be somewhat at variance with this doc- trine; it may, however, be observed, that the correctness of the ruling of Lord EUenborough, at Msi Prius, could not be questioned, as the cause was com- promised. "The plaintiff" and defendant were respectively owners of adjoin- ing closes on the banks of the river Medway. As far back as could be recol- lected, there had been a gush of water from a hole in the plaintiff''s close, which used-to run from thence, on the surface of the ground, to the river. About twenty-seven years before the action was brought, a bath was erected by the then occupier of the close near where the spring issued forth, and the water was conducted into it by a pipe. From that time till the present cause of action arose, the bath was amply supplied with water, and a considerable profit was derived from letting out the use of it to the public. In 1805 (the action being brought in 1808), the plaintiff" purchased this close, and erected a *180 paper manufactory upon it, for which a copious supply* of spring water is essentially requisite. About the same time, the defendant becoming owner of the adjoining close, opened a stone quarry in it. As the excavations proceeded, considerable quantities of water were found, which interrupted tlfb (a) 3 Taunt. 99. (h) Balstxfn v. Brnftcd, 1 Camp. 463, WATER-COURSES. 125 Subterraneous Channels. Artificial Water-Courses. workmen. A deep drain was afterwards made to carry it off into the river, and the quarry was left dry. But in iJie meantime, tiie water flowing into the plaintiff's bath had been gradually decreasing, and subsequently to the mak- ing of the drain, did not amount to more than an eighth or tenth part of its former quantity." For this diversion the action was brought. "The defence intended to be set up was, that the jilaiutiff had no exclusive right to'the sup- ply of water he claimed, as the princiide on which twenty years' enjoyment of running water confers a right to it, appeared from the cases to be, that, after an adverse possession for so long a time, a grant was to be presumed from the owners of the land further up the stream ; and such a grant could not be presumed here, as, previously to the drain being made, probably no individual knew that the plaintitFs s|)ring was fed by water percolating through the strata in the close now occupied by the defendant." But^Lord Ellenboroit^h ru\ed, " That the only question" was, whether the diminution of the supply of water to the plaintiff's bath had been caused by the drain dug by the defendant ; and that there could be no doubt but that twenty years' ex- clusive enjoyment of water in any particular manner affords a conclusive pre- sumption of right in the party so enjoying it." It was afterwards agreed, on the recommendation of the Court, that the water should be conveyed from the defendant's quarry to the *plaintiff's bath in the manner to be di- *18I I'ected by an arbitrator, and a jui-or was withdrawn. The proposition laid down by Lord Ellenhorough in the above case, appears to include under the same general rnle water-courses of all descriptions, whether the stream flows in the ordinary manner above ground, or only emerges after having made its way through the adjoining land below the sur- face of the earth. By the Civil law every man had a right to dig in bis own land for the pur- pose of improving it, although he should thereby intercept the water which supplied his neighbor's fountain (a). With regard to water-courses altogether artificial, there seem* no reason to doubt that the long-«OBtinued submission of the servient owner*to the dis- (a) Marcellus scribit, cum eo, qui in suo fodiens, vicini fontem avertit, nihil posse agi nee de dolo actionem : et sane non debet habere, si non animo vicino nocendi, sed suum agrum meliorem faciendi id fecit. — L. 1. § 12. fF. de aq. et aq. pi. arc. Si in meo aqua irrumpat quas ex tuo fundo venas habeat ; si eas venas incideris, et ob id desierit ad me aqua pervenire, tu non videris vi fecisse, si nulla servitus mihi eo nomine debita fuerit ; nee interdicto 'Quod vi aut clam' teneris. — L. 21. ff. de aq. et aq. pi. arc. Vide etiam L. 24. § 12. ff. de damno infecto. 126 ACQUISITION OF PARTICULAR EASEMENTS. Right to receive water. Arkvvright v. Gell. charge of water upon his tenement, or to the conducting of it t})rougli his land by the owner of tlie dominant tenement, will confer the right to continue the discharge of the water, or to receive the suf)i)ly of it. A question of much greater diffi'culty arises in the case of a discharge of water, when the servient owner seeks to compel the dominant to continue it, and to prevent him from altering its course, and thus attempts to invert tlieir relative positions, and himself to become dominant. * 182 The chief objection to such a daim is, that there is no *= submis- sion (patientia), by the dominant owner to the enjoyment of the water had by the servient— he discharges the water for his own convenience, and to what the other may apply it when so discharged is immaterial to him— he has no means of preventing such an application but by discontinuing the discharge, and thus depriving himself of tlie benefit of his own easement. It may be said that, according- to this argument, the party discharging the water could acquire no right where the other party immediately on receiving it applied it to some useful purpose— as the latter had submitted to it only be- cause it was advantageous to himself The answer to this objection is, that there is a submission by the receiving party, which does not exist in the case of the discharging party. The active step, felie immission of water, is the act of the latter. It is optional with the servient owner to submit to the immis- sion or to oppose it. The motives which influence him to do one or the other are immaterial. The real inquiry in such cases must be by whose act the water was first caused to flow. Supposing it to be unknown by which party the flow of water was caused, and that the flow is beneficial to the owners of both tenements, — to the one by the discharge, to the other by the use to which he puts the water on re- ceiving it, — it would probably be presumed that a reciprocal easement did exist. The recent and important case of ArkwrigU v. Gdl [a), turned upon the right of the party receiving water drained from a mine, to compel the owners of the mine-to continue such discharge. The Court decided that no such right existed in that case. * 183 * Independently of this general question, it would rather a[)pear upon the facts of that case, that there was no " perpetua causa," the flow of water being of a temporary nature only ; it also seems by no means clear, that the easement claimed would not have imposed the obligation not only " pati aut non facere," but also to do something positive — to continue the mining operations. If this be so, if the flow of water would not have continued in the manner desired by the plaintiflT, supposing the mines to be abandoned, it is («) Exch. E. T. 1«30. ARTIFICIAL WATER-COURSES. 127 Arkwjight v. Gell. cleur tliat the obligation tlius sought to be imi)0scd was directly opposed to tiie loyal constitution of (jaseihents (o). On the other hand, if this be not the real state of the facts — if the water would continue to flow from the mines in their then state, without any fur-- iher act of man. it is rather difficult to see the applicability of the illustration, used in tiie judgment of the Court,"of water made to flow by a steam-engine. In this view of the facts, the right claimed by the ])laintiflr was obviously mere- ly a negative easement, imjiosing on the servient owner merely an obligation " not to do" any thing to the prejudice of it (nonfaccre). "The plaintiff's in this case," said Mr. Baron Purine, on delivering the judg- ment of the Court of Exchequer, in the case of ./IrkivrigJd v. Gell, "are the oc- cupiers of certain cotton mills at Cromford, in the county of Derby, and com- plain of an illegal diversion by the defendants of the water to which they were of right entitled for the supply of their mills. The defendants by their pleas deny that right, and also insist that they have not been guilty of any illegal diversion. A special case was reserved on the trial for the opinion of the *Court, who are also to draw any inference of fact, which a jury *184 might, or ought to draw. The case appears to be this: In the ^beginning of the last century, certain adventurers had in part constructed, and were proceeding to continue a sough, now called the Cromford Sough, for the purpose of draining a portion of the mineral field in the wapentake of Wirksworth. How they acquired the right to make that sough is not stated ; it was, however, without doubt, either by virtue of the custom of mining there prevalent, or by the express license of the owner of the soil through which it was made. The adventurers received their remuneration in the shape of a certain portion of tlie ore raised from the mines within the level lying above and benefitted by the sough, (technically called, within the title of the sough), in consequence of an agreement with the proprietors of the mines. The right to this easement, with its accompanying advantages, appears to have been the subject of sale and conveyance in that district ; for in 1738 the then proprietors leased it for 999 years for a pecunia- ry consideration, with a reservation by way of rent of a part of the profits. Mr. Arkwright, under whom the plaintiffs claim, and all whose rights they may be assumed to have, became in 1836 the purchaser of the reversion ex- pectant on the determination of that lease, and he also acquired a portion of the interest of the lessees by a conveyance from some of them. It does not appear to us that this circumstance affects the question between the parties to this suit. After the sough had been constructed, and a constant flow of water thoroughly conducted from the mines, the late Sir Richard Arkwright, the father of Mr. Arkwright, obtained, in the year 1771, a lease for eighty-four (a) See ante, p. 7 ; and post, Incidents of Easements. 128 ACQUISITION OF PARTICULAR EASEMENTS. Arkwright v^ Gell. * 185 years, from the lord * of tlie manor of Cromford, (who upon the special case is alleged to have been the owner of the land through which the Cromford Sough was made, and also tlie owner of a piece of land between •the mouth of the sough and the brook into which the water was conveyed), of that piece of land, the brook and the " stream of water issuing and coming from Cromford Sough," with the right of erecting mills on the piece of land. In 1772, Sir Richard Arkwright erected extensive cotton mills thereon, and in April, 1789, he purchased that land and the fee-simple in the ujills and the manor of Cromford, including the lantls through which the Cromford Sough was made. In the mean time another company of adventurers had begun to construct another mining sough, called the Meerbrook Sough, on a much lower level in the adjoining township of Wirksworth. The defendants rep- resent and have all the rights of that company of adventurers, and must, like the proprietors of the Cromford Sough, be assumed to have acted, either by virtue of a mining custom or by expi-ess license of the owner of the soil, con- firmed by the Cromford Inclosure Act in 1802, and also to have had the an- thoritj^, prior or subsequently, of the owners of mines drained by that sough, and contributing a certain portion of the ore by way of recompense. These facts are not distinctly found, but we. think we must infer that such was the case, and consequently that the defendants stand in the same relation to the plaintiffs as if the owners of those mines had themselves, with the consent of the owner of the soil, constructed the sough for the purpose of freeing their mines from water; for whether they make the sough themselves, or through the agency of the adventurers, is immaterial. In 1813 the defendants, being * 186 themselves proprietors of mines * drained by it, extended the Meer- brook Sough, having made an agreement with the then proprietors of the Cromford Sough, and of other mines unwatered by it, and which appears to have been then worked down to the level of that sough, for the purpose of regulating their respective rights, and the recompense to be paid by the latter to the former set of adventurers'for the benefit to be derived by them from the extension of this sough, and the unwatering by means of it of a further portion of their mineral field below the level of the former sough. Th^ new sough was, therefore, constructed by the consent of some, if liot of all those mine owners who had formerly used the Cromford Sough, and in part for their benefit ; and this circumstance places the defendants in the same posi- tion in respect to' the diversion of the surplus water, as if they themselves had been owners of part of the mineral field formerly drained by the Crom- ford Sough, and were now proceeding to unwater a further [)ortion of the same field by means of the new sough. When the Meerbrook Sough was thus extended, the water was found to flow into it, and flood-gates were con- structed at the end, the closing of which prevented the water from finding its way in that direction, but which, when opened, let ofl" the water which would otherwise have been discharged by the Cromford Sough, and thereby pro- ARTIFICIAL WATER-COURSES. 129 Arkwright v. Gell. vented it from flowing to the plaintiff's mill. In 1825 an arrangement was made for tlie mutual accommodation of Mr. Arkwright and the Meerbrook Sougii proprietors, which was not to affect their rights, and which, having been determined in 183G, left them in the same situation as if it had never been made ; and the gates being removed in order to carry the sough further in that direction, and the water thereby diverted from the * plaintiff's * 187 mills, the defendants are in the same position as if no flood-gates had ever been made, and as if in the construction of their sough for the purpose of draining another portion of the mineral field, they had broken the natural barrier which pent the water up and made it flow through the Cromford Sough, and so caused the water to pass out at a lower level through the Meerbrook Sough, and the question is — whether the defendants by so doing are rendered liable to an action at the suit of the plaintiffs. This question, which was most elaborately and ably argued during the last term, appeai-s to us, strictly speaking, to be one as much of fact as of law ; and, when the sit- uation of both parties is fully understood, does not appear to us to be one of much doubt or difficulty. The stream upon which the mills were constructed was not a natural water-coui-se, to tlie advantages of which f^ov/ing in its nat- ural course the possessor of the land adjoining would be entitled, according to the doctrine laid down in Mason v. Hill [a) and in other cases ; this was an artificial water-course, and the sole object for which it was made was to get rid of a nuisance to the mines, and to enable the pi-oprietors to get the ores which lay within the mineral field drained by it ; and the flow of water thi'ough that channel was, from the very natiu'c of the case, of a temporary character, having its continuance only while the convenience of the mine- owner required it, and in the ordinary course it would most probably cease when the mineral laid above its level should have been extracted. That Sir Richard Arkwright contemplated (if the question of his knowledge in this state of things can be material), the discontinuance of this water-course, there * is evidence in the lease made in 1771, which contains a provision * 188 for a sup|)Iy from the rivers, in tiie event of the stream being lessened or taken away by the construction of another sough ; and also, that such an event was not improbable, appears from the clause in the 2d Cromford Canal Act, 30 Geo. 3, c. 56, s. 4. What, then, is the species of right or interest which the proprietor of the surface where the stream issued forth, or his grantees, would have in such a water-course at comujon law, and independently of the effect of user, under the recent statute 2 & 3 Will. 4, c. 71 ? He would only have a right to use it for any purpose to vvhich it was ap[)licable so long as it con- tinued there. An user for twenty years, or a longer time, would afford no presumption of n grant of the right tn the water in pprprtiiify, for such a grant (a) 5 B. * Adol. 1. 130 ACQUISITION OF PARTICULAR EASEMENTS. Arkwright v. Gell. would, in truth, be iieitlier more nor less than an obligation on the mine- owner not to work his mines, by the ordinary mode of getting minerals, be- low the level drained by that sough, and to keep these mines flootion by them at any time during the whole period by any reasonable mode and usage, and tlien it was not ' of right;' they had no interest to prevent it, and, until it became necessary, to drain the lower part of the field. Indeed, at all times, it was wholly immaterial to them what became of the water, so long as their mines were freed from it. We there- fore think that the plaintiff never acquired any right to have the stream of water continued in its former channels either by presumption of grant, or by the recent statutes, as against the owners of the lower level of the mineral field, or the defendants acting by their authority, and therefore our judgment must be for the defendants." * Sect. 2.— Rights to LigM and Air. * 191 The right to flowing water, it has already been shown, is at all events vest- ed by a single act of perception to a beneficial purpose, provided the stream itself be of sufiicient antiquity. The right to light and air seems to depend, however, upon very different grounds. The passage of light and air over lands unincumbered by buildings must necessarily have existed from time im- memorial ; but the use of the light and air so pa.ssing, by means of windows in a house or otherwise, confers no right unless it has been continued during twenty years. The natural rights of the owner of property in this respect seem to be defined by the legal maxim," Cujus est solum ejus est usque ad ccelum ft ad inferos ; " and the passage of these elements over adjoining land, unlike that of water, affords per se no evidence of tiio enlargement of such right by an easement. The reception of light and air in a lateral direction is an easement. The strict right of j)roperty entitles the owner to so much light and ah- only as falls perpendicularly on his land. He may build to the very extremity of his own land, and no action can be maintained against him for disturbing his neigh- bor's privacy, by opening windows which overlook the adjoining jiroperty (a); but it is competent to such neighbor to obstruct the windows so opened by building against them on his own land, at any time during twenty years after their construction, and thus prevent the acquisition of the easement (i); if, (a) Chandler v. Thompson, 3 Camp. 82. (b) See per LittJedale, i , in Moore v. Raieson, '? B. lea." Some doubt appears to exist upon the authorities, whether the enjoyment of the passage of light through a window for twenty years confers a right up- on the owner of the building to prevent his neighbor obstructing that partic- ular window, or whether it imposes upon the neighbor's land the obligation of permitting the passage of a certain quantity of light, the amount of which is fixed by the original dimensions of such window, but the mode of enjoy- ing which the owner of the house may vary at pleasure. This question be- * 193 comes * very material in considering the effect of any alteration in the mode of enjoying an easement (a). By the laws of all countries, and by the English law at a very early period it appears that an action would lie for the obstructing of ancient lights (i). Although, however, by the civil law, a servitude of prospect could be acquir- ed in the same manner as any other servitude, the law of England recognises, no such right (c), except by express grant or covenant. Of the existence of the right when so created the squares in London afford well known instances. The validity of restrictions thus imposed is fully recognised by the Lord Chan- cellor in the recent case of Squires v. Campbell [dj. In the Attorney- General v. Doughty (e), a motion was made for an injunction to restrain the defendant from proceeding with a certain building which would intercept the prospect from Gray's Inn Gardens ; and the report states, " that the interposition of the Court was desired, not on the foundation of a nuisance , but on a long enjoyment of right to this prospect by the Society, which right had been admitted formerly by parties concerned to dispute it, and by a court of equity ; nameh', in 1686, when several orders or petitions were made by Lord Jeffreys to restrain the building, so as (not) to intercept this prospect : flnd the manner of defence thereto shows this right of the Society was not disputed ; it only going upon this, that the Court was imposed on by the plans shown. That rights of this kind have been taken notice of appeared from the act of parliament made for adorning Lincoln's Inn, where tlie parties ac- * 194 * quiesced under such a right." Lord Hardivicke, however, refu- sed to grant an injimctiou before answer, saying, "I know no general rule of (ffl^ Vide post. {h) Mdred's Case, 9 Rep. 58, and cases there cited. (c) Mdred's Case, 9 Rep. 58. (d) 1 Mylne & Craig, 459 (e) 2 Vez. Sen. 452. LIGHT AND AIR. 125 Easement of prospect not acquired by enjoyment. Martin v. Goble. common law wljich says that building so as to stop aiiotlicr's prospect is a nuisance : was that tl-e case, tlieie could be no great towns, and I must grant injunctions to all tlic new buildings in tliis town. It depends on a particular right, and then the party must first have an opportunity to answer it. As to the orders made by Lord Jeffreys, wlio was too apt to do things in an extraor- dinary manner,/or/iVer 171 modo as well as in re, they were made on .petition, without a bill filed, and those I lay out of the case. There may be such a right as this, as in the case of the act of parliament touching Lincoln's Inn : that was upon agreement of the parties, which if it was shown here, it would be different." The right to^the use of light may be thus acquired, not only for the ordinary purpose of domestic life, but for the convenience of trade or manufacture ; the extent of the right acquired by the user will be proportioned to the actu- al amount of enjoyment had during the requisite period ; which, if doubtful, is a question of fact to be determined by a jury. In Martin v. Goble (a) an action was brought for obstructing lights. It ap- peared, that the building in question had stood between thirty and forty years, and had formerly been used as a malt-house ; but, about seven years before the commencement of this suit, it was converted into a parish workhouse ; the evidence was contradictory as to the amount of light obstructed by the wall built by the defendant. M'Donald, C. B., * said, " It was * 195 not enough that the windows were, to a certain degree, darkened by the wall which the defendant had erected on his own ground, the house was entitled to the degree of liglit necessary for a malt-house, not for a dwel- ling-house ; the converting it from the one into the other could not affect the rights of the owners of the adjoining ground. No man could, by any act of his own, suddenly impose a new restriction on his neighbor. This house had for twenty years enjoyed light sufiicient for a malt-house, and up to this extent, and no further, the plaintiffs could still require that light should be admitted to it; the question, therefore, was, whether, if it still remained in the condi- tion of a malt-house, a proper degree of light, for the purpose of making malt, was now prevented from entering it by means of the wall which the de- fendant had erected." The report does not state whether any new windows had been made in the house upon the change in its destination, or whether any alteration had been made in the form or size of the ancient windows, or other apertiues, for admitting light. In Roberts v. Macord {b) the defendant, in justification of a trespass for breaking down a wall, i)leadcd that the wall obstructed the passage of light (a) I Camp. 32'2. ■'h) J Moo. &. Rob. 230. 136 ACQUISITION OF PARTICULAR EASEMENTS. Extent of right acquired by enjoyment. Roberts v. Macord. and air to his timber yard and sawpit, to which he was lawfully entitled for drying the timber, and the more convenient use and occupation of the timber yard and sawpit. Patteson, J., said, " The plea was a very novel one, and one which, in his opinion, could not be supported in point of law. If such a plea could be sustained, it would follow, that a man might acquire an exclusive right to the light and air, not only as heretofore, by having been suffered to build on the edge of his property, and suffered for a certain space of time to enjoy that building without interruption, but merely by reason of having been in the habit of laying a few boards on his ground to dry; such a rule would be very incon- venient, and very unjust: still the question, in the present stage of proceedings, was, was the plea proved in point of fact? Upon that point he did not think the mere circumstance of the defendant's having had a sawpit upon the pre- mises, and laid his timber there during twenty years, would, in a case like this be sufficient to raise the presumption of a grant. The jury must look to all the circumstances of the case, not forgetting the manner in which the defend- ant himself had occupied the premises. The questions for the jury were— whether the defendant had, in flict, used the sawpit and timber yard for twenty years ; and whether, during that time, the light and air liad been really necessary for the purpose stated in the defendaut's plea: if both these facts were made out to the satisfaction of the jury, they would find for the de- fendant; otherwise, for the plaintiff." The jury found for the plaintiff. No attempt was made to impeach this ruling of the learned judge by any motion for a new trial ; and, indeed, the questions left by him to the jury ap- pear to be perfectly unobjectionable as far as the defendant was concerned ; although, had the two questions been determined in favor of the defendant, it would appear that the plaintiff might have contended, that a further point must have been found for the defendant ; that his enjoyment was of such a * 197 nature as indicated to the* plaintiff that such an easement was claim- ed against him ; or, in other words, that it was not vitiated by being dam. The case, howevei-, taken altogether, is no authority whatever for the gener- al position deduced from it by the reporters in their marginal note, that " The use of an open space of ground, in a particular way, requiring light and air, for twenty years, does not give a right to preclude the adjoining owner from building on his land, so as to obstruct the light and air." Had the jury found the two questions left to them by the learned judge in favor of the defendant, and that he had, openly as well as in fact, used the timber yard for twenty years, and, notwithstanding such finding, the Court above had decided that judgment must be entered for the plaintiff non obstante veredicto, the margin- al note of the reporters would have been warranted by the case itself. LIGHT AND AIR. 137 Easement of air. Right to prevent access of impure air or water not an easm't. By the civil law, the servitude " ne himiiiibus officiatur" was one of the or- dinary urban servitudes (a) ; a similar servitude also existed for the right of prospect [b), wiiich appears to have been very extensive. The right to the enjoyment of air is, generally * speaking, at com- * 198 mon law, governed by the same principles as those which regulate the passage of light. The old authorities, however, mention a singular case of an easement of this kind, which n)iglit have the efl'ect of impos-ing very extensive restrictions up- on the owners of the neighboring land. ff iyjjc/i, J., said, "That where one erected a house so liigh that the wind was stopped from the windmills in Finsbury fields, it was adjudged that it should be broken ject. A parson lias the via or adilus over a farm witli carts to bring liome lii3 titiie, but he can use it for no other purpose. I have always considered it as a matter of evidence, and a jjroper question for a jury, to lmi\ wlieiher a right of way for cattle is to be presumed from the usnge proved of a cart-way, Consequently, although in certain cases a general way for carriages may be good evidence, from vvhicli a jury may infer a right of this kind, yet it i.s only evidence ; and they are to compare tlie reasons which they have for forming an o])inion on either side. As well at the trial, as since, I iiave thought that there might often be good reasons why a man should grant a right of carriage- way, and yet no way for cattle. That woujd be the case where a person who lived next to a mews in London should let a part of his own stable with a right of carriage-way * to it which could be u.sed with very little, if * ii(i 156 ACQUISITION OF PARIJCULAR EASEMENTS. Buildings must be kept in repair. Buildings must be properly constructed. supply. In the ca.se of Dodd v. Holme, this point does not appear to have been distinctly considered. (17) The same reasoning would seem to apply to the case of a house originally built in a weak and insufficient manner, in consequence of which it required a greater degree of support than would be requisite for a well-built house. Unless there was some external indication of the weakness of the burbling, the neighbor would be altogether in ignorance, that a greater degree of lateral pressure was exerted than would have been the case, had the house posses- sed the ordinary degree of coherence of one well built. A further objection to the acquisition of an easement of this class by pre- scription, is the difficulty on the part of the servient owner to offer any effec- tual resistance, a ground on which considerable stress was laid in the case of Arkivrigld v. Gell (a)-. The servient might certainly in all cases withdraw the sujjport, but he is not obliged, in order to resist the claim, to do that which might probably be more injurious to his tenement than the easement itself would have been. In such a state of facts, there fs nothing to imply his assent to the enjoy- ment of the easement by the dominant owner (h). (a) Ante, p. 182. (6) Invitum autem in servitutibus, accipere debemus, non eurn qui contradicit, sed eum qui non consentit. — L. 5. ff. de serv. prsed. urb. (17) Where the owner of a lot builds upon it, he builds at his peril, for it is not possible for him, merely by building upon his own ground, to deprive any other party of such use of his, as he or they shall deem most advantageous. Thurston V. Hancock, 12 Mass. 221. The plaintiff built his house about ten years before he sued his action within two feet of the western line of his lot, knowing that those who held the adjoining lot, had a right to build equally near the line, or to dig down into the soil for anj^ lawful purpose. He knew the shape of the ground, and that it was impossible to dig there without making excavations. The action was brought against the defendant for digging so deep on his own land as to endanger the plaintiff's dwelling — insomuch that he was obliged to take it down: Held, that he was not entitled to recover ; it was damnum obsque injuria. • Case — Action for injzirij to reversion. — In Raine v. Alderson, 4 Bing. N. C. 702, it was held, that a party who has demised a hoiise without exception of mines, may maintain an action on the case for an injury to the house by a stranger in excavating coal ; although it was not clear whether the injury resulted from ex- cavation under the house, or under an adjoining house in the plaintiff's occnpa- tion SUPPORT TO BUILDINGS BY BUILDINGS. 157 Clam. Peyton v. Mayor of London. * § 3. — SuppoH to Buildings by Buildingg. * 228 A question of equal practical importance, but presenting greater difficnlties, and not elucidated by any direct authority, arises where the owner of an an- cient house claims a riglitto liavc it lean against and be supported by the house of his neighbor. The obstacle to the acquisition of this easement by user, arises from the natural secrecy of the mode of its enjoyment, and the consequent difficulty of showing that it has been had with the knowledge of the owner of the servi- ent tenement. In order to give rise to any question of the existence of this easement, a man must have built to the extremity 'of his own soil; and sujjposing him to have built [)erpeiidicularly, as he may reasonably be expected to have done, whatever additional pressure may thereby be exerted on the soil, there would be none upon the adjoining house. Supposing, however, that some deviation from the perpendicular should originally have existed, or have been caused subsequently by the imperfect state of the building, but to so small an extent, or in such a position, as not to be apparent to the owner of the adjoining house, the ignorance of the neigh- bor would exclude the presumption of that " negligence and patience," from which alone his consent to the imposition of the easement could be inferred. If, on the other hand, the manner of imposing the pressure be of such a manifest and visible nature, as to afford the requisite indication to the adjoin- ing owner, it would appear, that an easement of this kind may be acquired in the same manner as any other easements; as, * for instance, where * 229 a beam is inserted in the wall of the neighbor's house ; although a further ob- jection would arise from the difHcidty on the part of the servient owner, in re- sisting the right thus sought to be acquired. From t-lie expression in the judgment in Paylon v. The Mayor of London (a), " it did not appear whether the two houses had been erected at the same time, and whether the freehold in both had originally belonged to the same person ;" Lord Tenterden seems to have inclined to the opinion, thai, had such a union existed, an easement of support would have arisen upon their severance. Such an acquisition of an easement has obviously no connexion with the ti- tle by prescription, but rather results from the doctrine of the disposition of the owner of two tenements. It might also be urged, that such a right to support would be an easement of necessity, as, without it, the house granted or retained, could not exist. (a) 9 B. & Cr. 73C. 158 ACQUISITION OF PARTICULAR EASEMENTS. riam. reyton v. Mayor of London. The right of support in cases of this nature was distinctly recognised in the Civil Law (a). The more ancient autliorities api)ear to be altogether silent upon the point, whether such an easement can be acquired by prcscrij)tion ; and in the only modern case which bears directly upon the sucject, the declaration was unfor- tunately so ill drawn, that the Court were not called upon to decide the ques- tion of right ; and, iiideed, in argument, hardly any attempt appears from the * 230 report to have been made to maintain the rigiit to supi)ort* upon the genera] principles of the law of easements. The facts of this case, the ])oints made in argument, and the reasons which influenced the Coint, sufiiciently appear in the judgment delivered by Lord Tenterden. " This was a special action ni)on the case brought by the plaintiff's, as the reversioners of a bouse in Cheai)side, in the occupation of tlieir tenant under a lease, against the defendants as owners of the aTljoining house, for injury sustained in consequence of pulling down the defendants' house. The iirst count of the declaration, after alleging the i)laintifr.s interest in a house, which ill part adjoined a house of the defendants, charged liiat ihe defendants un- skilfully, wrongfully, and improperly altered, pulled down, and removed their house adjoining to the plaintiffs' house, without shoring up, proj)ping, or duly securing the jilaintiffs' house, in order to prevent the same from being injured by the altering, pulling down, and removing of the f]^efcndams' l-.ouse : so that in want of such shoring up, propping, or otherwise duly securing the plaintiffs' house, that house was greatly injin-ed, weakened, and in part fell down. The second count, alleging that the houses adjoined and were con- nected by a party-wall, charged that the defendants so negligently, unskilfully, wrongfully, and imjirojierly conducted themselves in and about the altering, taking away, pulling down, and removing the defendants' house, that the plaintiffs' house was by such negligent, unskilftd, and improper conduct, great- ly weakened, ruined, and dilai)idated, and in part fell down. " The declaration in this case does not allege, as a fact, that tlie plaintiffs were entitled to liave their house su[iportcd by the dcfendar.ts' house, nor does it in our oiiinion contain any allegation from which a title to such suj)- * 231 *port can be inferred as a matter of law. The complaint also in both counts relates to the fact of taking down the defendani's house, and the (a) Binas quis scdes habebat una contignatione tect.as ; utrasquc diversis loga- vit : dixi, quia magls placet tignura posse duorum ossp, ita ut ccrtcu partes onjus- que sint contignationis, ex regione cujusque domini fore tigna ; nee ul!ani invi- cem habituros actionem 'jus non esse immisaum habere :' nee interest, pure ntris- que, an sub conditione alter! asdes legatie sint. — L. 36. ff. do serv. prnr^d. urb. SUPPORT OF BUILDINGS BY BUILDINGS. 159 Peyton v. Mayor of London. manner in which that was done. The first count is evidently framed upon a supposition that it was tlic duty of the defcndaiits to use the necessary means to sustain tiic iilaintills' house when they took down their own ; the second count is more general, but it does not charge the want of notice of taking down the defendants, house, in order that the plaintiffs might themselves use the necessary means to sustain their own property, as the injury complained of: and, therefore, in our opinion, the action cannot be maintained upon the want of such a notice, suj)posing that, as a matter of law, the defendants were bound to give notice before hand; upou which point of law we are not, in this case, called upon to give any opinion. " I have been thus particular in noticing the declaration, because it fm-uisli- es an answer to much of the learned argiunents that were advanced on the behalf of the plaintiffs in support of the rule for a new trial. " At the trial of the cause before me at Guildhall, it appeared, upon the plaintiffs' evidence, that the two houses were old and decayed, the party-wall between them weak and defective ; that for some time pieces of timber called struts, had been carried across Honey Lane, on the east side whereof the de- fendants' house was situate, to the opposite house on the west side of that lane ; that the plaintiffs' house adjoined the defendants' eastward ; that these struts, by preventing the defendants' house from falling westward, had the effect also of preventing the plaintiffs' house * from falling that way; that when * 232 the defendants' house was taken down, these struts were necessarily removed, and no other and longer struts substituted extending from the plaintiffs' house to the house on the opposite side of Honey Lane, nor any upright shores jdaced within the plaintiffs' bouse to sustain the floors and roof without the aid of the party-wall ; that if either of these measures had been adopted, the plaintiffs' house might have stood : but that neither of them being adopted, it soon be- came separated from the house adjouiing to it on the east, and either partly fell or was necessarily taken down, and rebuilt, being injured, dangerous, and uninhabitable. It did not appear whether the two houses bad been erected at the same time, or at different times ; from their construction, it seems likely that they were built at or about the same time. The freehold w^as then in dif- ferent hands ; and as the governors of the hospital are not likely to have bought or sold in modern times, it is probable that the freehold was also in different hands when the houses were built. These, however, are but conjectures ; if the proof of the facts, either way, would have aided the plaintiffs' case, it was their duty to give the proof. "It did not appear that the defendants gave any previous notice of the in- tention of pulling down their house, or of the time of doing so ; but the defective state of both houses was known to the parties. There had been prievous dis- cussion between them, especially with regard to the party-wall, and a notice of re-building the party- wall under the act of parliament had been given ; but 160 ACaUISITION OF PARTICULAR EASEMENTS. Peyton v. Mayor of London. Brown v. Windsor. the defendants' house was pulled down before the expiration of the time meu- * 233 tioncd in that * notice. Tlie operation of taking down tiie defendants' house was carried on by day, and the operation must have been seen and known by the tenant and occupier of the plaintiffs' house. "Upon these facts aj)|)earing at the trial, I was of opinion, at the close of the plaintiffs' evidence, that it was their duty to support their own house by shores within; and ui)on that ground I directed a nonsuit. "A rule to show cause for setting aside the nonsuit was granted in the en- suing term ; cause was shown, and the matter very well argued on both sides during the present term. We have considered of it ; and adverting to the facts proved, and to the want of evidence from which a grant to the plaintiffs of a right to the support of the adjoining house might be inferred, and to the form of the declaration, we think the nonsuit was right, and the ride, therefore, must be discharged " (a). Brown V. Windsor [b) was an action on the case for negligently and careless- ly excavating on tlie defendant's own land, and thereby withdrawing the sup- port from the plaintiff^s house, which the declaration alleged it was entitled to. It appeared, that, for about twenty-six years, the plaintiff had rested his house upon a pine end wall belonging to the defendant ; this had been originally done by permission of the owner of the wall ; the defendant, by excavating near * 234 his pine end wall, caused it to sink, and thereby injured the * plain- tiff's house, which rested against it. The jury found that this excavation was made in a careless and unskilful manner; a motion was afterwards made to set aside the verdict; but, after argument, the Court of Exchequer (c) held, that the action could be supported. This case cannot be cited as a direct authority upon the point in question as the Court there clearly assumed, that the plaintiff was entitled to the sup- port he claimed: thus, Ganow, B., said, " When such an easement is given, the owner of the premises can only use his rights subject to such easement ; and I am of opinion, that the allegation as to the easement was established in evidence." " If a party," said Vaughan, B., " grant an easement, like the pres- ent, and then act so that it cannot be enjoyed, an action lies." By the Civil Law, two servitudes were recognised, the " servitus tigni immit- tendi," and the "servitus onera vicini sustinendi," both belonging to this latter (a) Peyton v. Mayor of London, 9B. & Cr. 736 : see, also, Walters aiid Others v. Pfeil, 1 Moo. & Mai. 365; Massey v. Goyder, 4 Car. &. P. 161. (b) 1 Cr. S^- J. 20. (c) Garrotc, B., Vaughnm, B., and Bolland, B. NEGLIGENCE- 161 Negligence in law and in fact. G Edw. 4. class of support of ohe Iioiise from the afljoining house (a) ; the former imposed the liubility of support alone, while the latter also imposed the anomalous ob- ligation of repair on the servient tenement; but, even this, the most oppressive servitude known to the law, allowed the servient owner to pull down his house for the purpose of repair, without propping up the dominant tenement, no mat- ter what danger he thereby exposed it to [b). *In the cases as to the right of support to land and houses * 235 from the soil and build mgs adjoining, much stress has been laid upon the negligence imjjuted to the party charged, and some misapprehension appears to have prevailed, at least in argument, with reference to this point. This has probably arisen from the want of precision in the use of the term negli- gence, which per sc is insufficient to express the distinction between negligence in law and negligence in fact. Negligence in law is always ftcilonable, but great Uncertainty appears to ex- ist as to the cases in which negligence in fact will afford foundation for a right of action. If a man has a right of easement to support, and his neighbor in- vades it, he is liable to an action — no matter how carefully he may have done the act complained of; but it is by no means equally clear where a party is not bound by any easement, that he may not be liable for the damage re- sulting from his negligence in fact. The first branch of this ]n-oposition appears sufficiently obvious. It has been recognised as law in many ancient decisions — that an action lies for any act done by a man in using his own property, whereby the rights of another are injured, unless such act be altogether inevitable and beyond his control. There is a very early case in which this point was expressly decided (c). A man brought an action of tresi)ass for breaking and entering his close and treading down his grass. The defendant pleaded not guilty, and also justi- fied the trespass, because he had a hedge * of thorns growing on a * 236 close sdjoining the close of the plaintiff, and at the time of the supposed tres- pass he cut the said thorns, and they ipso invito fell upon the land of the plaintiff, and that defendant came freshly upon the said land and took them away. To this pica the plaintifT demurred, "and it was well afgued and ad- journed." (a) Item urbanorum prcediorum servitutes sunt hae — ut vicinus vicini onere sus- tineat, ut in parietem ejus liceat vicino tignum immittere. — I. L. if. de serv. Vide post, Incidents of casements. (c) Post- (b) 6 Ed. 4. 7, pi. 14. 21 162 ACQUISITION OF PARllCULAR EASEMENTS. Negligence in law. 6 Ewd. 4. It was argued on belialf of the defendant, "Tliat if a man does a lawful actj and by reason thereof damage accrsies to another contrary to his intention {encount son vohinte,) he shall not be punished ; " as if I drive my beasts along the highway, and you have an acre of land adjoining thereto, and my beasts enter upon your land and cat tlic herbage thereof, and I come freshly and chase them out of your land, you shall not have any action against me, because the chasing them was lawful, and their entry upon your land was against my will. So, in the present case, the cutting was lawful, and the falling upon the plain- tifPs land against the defendant's will ; and therefore this re-taking was good and justifiable. If I cut the boughs of my tree, and they fall upon a man and kill him, I shall not be attaint as of felony ; for my cutting was lawful, and the falling upon the man was against my will" On the other side, a distinction was taken " between cases where the injury arising from an act is felony, and where it is only trespass, because felony is of malice pi-epense ; and as it was against a man's will, it cannot be done animo felonico ; but if in cutting my boughs they fall on a man and hurt him, he shall have an action of trespass. So if a man shooting with his bow at the butts, and his bow turn aside in his hands [son arlx simcset en sa mein) and kill a man * 237 ipso invito, it is not felony ; but if his arrow hurt a man, an * action will well lie, although his shooting was a lawful act, aihd the hurt of the other was against his will. Pigott, J. — If I have a mill, and the water which runs thereto passes over your land, and you have osiers or willows growing along the wa- ter side, and you cut the willows and they fall into the stream and stop it, so that I cannot have sufficient water for my mill, I shall have an action, not- withstanding the cutting was lawful, and they fell into the stream against your will. So if a man hath a pond in his manor, and lets off the water in Order to catch the fish therein, and the water surrounds my land, I shall have all action^ though the doing so by him was lawful." Young, J., was of opinion that " no action lay, because the property in the thorns being still in the defendant, his entry to take them away was not tortious, and that the plaintiff Ijad sustained damage sine injuria. Biian, J. — " In my opinion, when a man doth any act, he is bound to do it in such a manner as not to injure another man. If I build a house, and while the timber is being raised up a piece of timber falls upon my neighbor's house and breaks it down [Jebruse sa meason) he shall have an action against me, though the raising the timber was lawful, and the falling and injury against my will. So too if a man make an assault upon me, and 1 cannot avoid him, and as he is coming to beat me, I raise my stick in my own defence to strike, and another man is behind me, and in raising my stick I strike him, he shall have an action against me," Liitldon, J., said, that " the case of the beasts put by the defendant's counsel was not law ; but if a man's cattle do damage by eating the herbage, &c., he must pay for it, or they may * 238 be distrained damage feasant, thougli they could* not be taken by the NEGLIGENCE. 163 Nejrliirence in law. 6 Edw. 4. Weaver v. Ward lord for his rent, as the owner would be entitled to have them back again up- on tender of rcasouiible amends. If the law be as is contended in respect to thorns, it must be so for trees also ; and a man might enter witii his carts to take it away if it fell into his neighbor's field, notwithstanding the neighbor had wheat or other herbs growing there. The law is the same for great and small things; and the amends shall in all cases be according to the quantity of damage done." ClwJce — "Where the principal thing was not lawful, that which dependeth upon it is not lawful. When the thorns were cut and fell on the plaintiff's land, tlie falling was unlawful, and therefore defendant's coming to fetch was unlawful likewise ; and as to his saying that they fell ipso invito, that is no plea at all ; but he ought to say that he could not do other- wise, or that he did all that lay in his power to keep them out, or otherwise he shall pay damages. But if the thorns or a large tree had fallen by the force of the wind, in this case he might have entered and taken them, the falling being caused not by his act, but by the wind." So, in Weaver v. TVard, (a), in an action of trespass and battery, the defend- ant pleaded " That he was skirmishing in the London trainbands in re mililari, and accidentally, and by misfortune, and against his will, in discharging of his piece, did hiu-t and wound the plaintiff." Upon demurrer, judgment was given for the plaintiff: "For though it were agreed that if men tilt or tourney in the presence of the king, or if two masters of defence, playing their prizes, kill one another, that this shall be no felony, or if a lunatic kill a * man,^ * 239 or the like — because felony must be done animo felonico : but in trespass which tends only to give damages according to hurt or loss, it is not so ; there- fore, if a liuiatic hurt a man he shall be answerable in trespass ; and therefore no man shall be excused of a trespass, (for this is the nature of an excuse, and not of a justification, proidei bene licuit), except it may he judged utterly ivitJiout this fmdt ; as if a man by force take my- hand and strike you, or if here the defend- ant had said that tiie plaintiff ran across his piece when it was discharging, or bad set foryi the case witli the circumstances so as it appeared to the Court to have been inevitable, and that the defendant had committed no negligence to give occasion to the hurt." Thus in 1 Rolle's Abridge, {h), it is Si^id, "If my fire by misfortune burn the goods of another man, be shall have an action on the case against me. "If the fire light suddenly in my house, I knowing nothin:r of it, and burn my goods and also the house of my neighbor, my neighbor shall have an ac- tion on the case against me. " If my servant puts a candle or other fire in a place in my house, and it fells and burns all my house and the house of my neighbor, action on the case (a) Hobart, 134. (b) Tit. Action sur Case, B. p 1. citing 2 H. 4, 18. 1G4 ACQUISITION OF PARTICULAR EASEMENTS. Negligence in law. Turbevil v. Stamp. Sutton v. Clarke. Vaughan v. Menlove. lies against ine by him ; and the law is the same if my guest should do it {a). " But if a stranger against my will puts a fire in my house, no action lies against me." So, in Turhtvil v. Stamp [h] which was an action against tlie defendant for so negligently and carelessly keeping the fire in his field, that it communica- * 241 ted * to the plaintiff's adjoining close of heath and burnt it. Af- ter verdict for the plaintifl^", defendant moved in arrest of judgment, and it was said, " That in fact in this case the defendant's servant kindled this fire by w^ay of husbandry, but that a wind and tempest rose and drove it into the plaintiff's field ; and the Court said (c), " The fire in Jiis field is his fire, as well as that in his house. He made it, and must see it does no harm, and an- swer the damage if it does. Every man must use his own so as not to hurt another ; but if a sudden storm had arisen which he could not stop, it was matter of evidence, and he should have shown it." So in Comyri's Digest (d) it is said, " An action lies for misfeasance, though the damage happen by misadventure." One of the authorities cited by Comyn is a case in Croke (e), of a man shooting with a gun at a bird, and thereby lighting a fire which consumed his neighbor's house. "If a man," says Gihhs, C. J., in Sutto7i v. Clarke, " for his own benefit makes an improvement on his own land, according to his best skill and difigence, and not (foreseeing that it will produce any injury to his neighbor, if he there- by unwittingly injure his neighbor, he is answerable" (/). The recent case of Faughan v. Menlove (g) was an action brought by the plaintiff for an injury to his reversion, occasioned by the defendant making a rick of hay on his own land near some cottages of the plaintiff, which was, * 240 " liable and likely to ignite, take fire, * and burst out in flame, of which the defendant had notice, by means whereof the said rick did ignite, take fire, and burst into flame, and by flame issuing there from the plaintiff's cottages were set on fire, and thereby, through the carelessness, jjegligence, and improper conduct of the defendant, in so keeping and continuing the said rick in such condition, the said cottages were burnt down. The defendant pleaded not guilty — that " the said rick or stack of hay was not likely to (a) The law is now altered as to the liability for accidental fire. (6) Ld. Raym. 264. (c) 1 Salk. 13. (d) Action upon the case for misfeasance, A. 4. (c) Cro. Eliz. 10. (/) 6 Taunt. 44. {g) 4 Scott. 244. NEGLIGENCE. 165 Negligence in law. Vaughan v. Menlovc. ignite, take fire, and brake out into flame, nor was the same, by reason of such liability, dangerouf? to the plaintiff's cottages, nor had tlie defendant notice thereof— and other pleas, which denied that the damage occurred through the defendant's negligence. It appeared at the trial, that the rick in question liad been made by the de- fendant near the boundaiy of his own premises ; that the hay when put to- gether was in such a state as to cause persons to warn the defendant thai there was danger of its taking fire ; that he made some attempts to prevent this by making a chimney in the rick ; that the rick burst into flames from the spontaneous ignition of the materials, and the flames communicated to and destroyed the plaintiff's cottages. Patteson, J., lefl it to the jury to consider "Whether the fire had been occa- sioned by gross negligence on the part of the defendant ;" adding, " that he was bound to proceed with such reasonable caution as a prudent man would have exercised under such circumstances." The jury having found for the plaintiff, a rule for a new trial was obtained, on the ground that the proper question to have been left to the jury was, whether the defendant had acted bona fide to the best * of his judgment, the standard of " ordinary *242 prudence" being too uncertain to afford any criterion. The argument went entirely on the question of negligence ; and the decis- ions upon the degree of caution requii-ed in taking negotiable instruments were relied on for the defendants. The Court discharged the rule. Tindaly C. J., said, "I agree that this is a case of the first impression ; but I feel no difficulty in tlie application to it of the principle upon which the determina- tion of it must rest. This is neither a case of contract nor a case of bailment, where the degree of care which the party is called upon to exert is measured by the nature and character of the bailment. But the case falls within the general rule of law, which requires that a man shall so use his own property as not to injure or destroy that of his neighbor, and which renders him liable for all the consequences resulting from the want of due care and caution in the mode of enjoying his own. Under the particular circumstances of this case, 1 feel no hesitation in holding the defendant to have been as much the raiser of the fire as if he had put a lighted match to the hay-rick : for, it is well known that hay stacked in a green or damp condition will from natural causes ferment and ignite. "In Tubervil v. Stmnp, an action was held to be maintainable under circum- stances very similar to those of the preceding case : ' Case on the custom of the realm, quare negligenter custodivit ignem suum in clauso suo, ita quod per flammas blada quer. in quodam clauso ipsius quer. combusta fuerunt. Afler verdict pro quer., it was objected, the custom extends only to fire in a house or curtilage, (like goods of guests), which are in his power. Non alloc. ; for, the fire in his field is his fire, as well as that in his house ; he made it, and 1G6 ACQUISITION OF EASEMENTS. Negligence in law. Vaughan v. Menlove. * 243 must see that it does * no harm, and answer the damage if it does^ Every man must use liis own so as not to hurt another. But, if a sudden storm had arisen, which he could not stop, it was matter of evidence, and he should have showed it. And Holt, Rokesby, and Eyre, against the opinion of Turton, who went upon the difference between fire in a house, wiiich is in a man's custody and power, and fire in a field, which is not properly so ; and it would discourage husbandrj', it being usual for farmers to burn stubble, &c. But the plaintifi" had judgment, according to tlie opinion of the other three.' " Put the case of a chemist, mixing substances which alone are perfectly innocent, but which are liable to explode on coming into contact, and thereby occasioning damage to his neighbor: who could for a moment doubt that the injured party would have a remedy by action ? I am clearly of opinion that the damage in this case was properly the subject-matter of an action. " But it is contended that the learned judge mistook the extent of the de- fendant's liability ; and that, under the particular circumstances of this case, the defendant was not bound to adopt such measures as a man of ordinary prudence would have resorted to for the purpose of averting the threatened danger ; but that it was sufficient if he acted according to the best of his own individual judgment; and therefore the learned judge ought not to have left the case to the jury as one of gross negligence, but should have left it to them to say whether or not the defendant had acted honestly and bona fide accord- ing to the best of his judgment. The first observation that suggests itself, in answer to that argument, is, that, seeing the infinite gradations of intellect and * 244 judgment, the doctrine contended for would * lead to an inconven- ient vagueness and uncertainty in a case which perhaps more than all others requires that the rights and liabilities of the parties should be well and accu- rately defined. " It is said, that there is nothing intelligible in the rule which has in many cases obtained, requiring from a party under circumstances analogous to those of the present case, the exercise of that degree of care which a prudent and cautious man would be expected to use. Such, however, has always been the rule in cases of bailment, as laid down by Lord Kenyan in Coggs v. Bm'- nard (a), though in some cases of bailment a smaller, in others a greater de- gree of diligence and care are exacted. That learned judge says: 'In the second sort of bailment, viz. commodatinn, or lending gratis, the borrower is bound to the strictest care and diligence to keep the goods so as to restore them back again to the lender ; because the bailee has a benefit by the use of them ; so, if the bailee be guilty of the least neglect, he will be answerable ; as, if a man should lend another a horse to go westward, or for a month, if (a) 2 Lord Raym. 909. NEGLIGENCE. 167 Negligence in law. Vaughan v. Menlove. the bailee put tliis liorse in his stable, and he were stolen from thence, the bailee siiali not be answerable for him : but, if he or his servant leave the house or stable doors oi)en, and tiie tliieves take the opportunity of that and steal the horse, he will be chargeable, because the neglect gave the thieves the occasion to steal the horse.' "It is for the jury to say whether or not, mider the circumstances, the par- ty has conducted himself with such a degree of care and caution as might be looked for in a 2>ruorted, inasmuch as it traverses a matter of* law. * 2G2 It is pleaded as to so much of the last count as relates to the defendant not having given to the [daintiffs due and reasonable notice of his intention to pull down his walls. Tiie allegation in this plea, that he was not bound by law or otherwise, nor was there any duty, liability, or obligation imposed on him by law or otherwise, to give any notice of his intention to the plaintiffs, appears to us to raise a direct question of law upon an issue joined on that yilea. "The eleventh plea, which pleaded to so much of the second count as al- leges it to have been the duty of the defendant to have taken due and reason- able precautions about the pulling down his walls, we hold to be bad for the same reason as the last, viz. that it raises an issue of law, instead of an issue of fact, for the jury. "The twelfth plea fiiUs altogether within the same consideration as the sixth, and is bad for the same reason. " The last plea, to the second count of the declaration, is bad for the same reason as the seventh plea, which is {)leaded to a similar part of the first count and sets up j)recisely the same defence. " But the defendant contends, that admitting the pleas to be bad, the plain- tiffs have shown no sufficient ground of action, either in the first or second cotmt of their declaration. "The first count rests upon a precise and distinct allegation lliat the vatilt or cellar of the plaintiffs was of right sup|)orted by parts of the adjoining walls, and that the plaintiffs were of right entitled to have them so supported, and that there were certain foundations for supporting those vaults, which the blaintiffs ought * to enjoy : and the count then proceeds to allege, as * 263 part of the gravamen, that the defendant wrongfully dug the earth and distur- bed the foundations, without taking due and proper precautions to prevent the foundations from being weakened. And we think, without entering into the examination of the several cases cited by the plaintiffs, this count contains a clear and substantive ground of action, viz. that of negligence and careless- ness in the exercise of the" defendant's rights, by means wherof the plaintiffs' rights were injured ; and that, if the defendant meant to object that the plain- 178 ACQUISITION OF PARTICULAR EASEMENTS. Negligence in facts. Trower v. Chadwick. tiffs' right and title was not alleged with sufficient certainty, he ought to have demurred specially to the declaration, instead of pleading over. "With respect to the second count of tlie declaration, the right of action, as stated in that count, appears in one resjject more doubtful. There is no allegation in this count of any right of easement in alieno solo, which forms the ground of the plaintiff's action in the first count. And, as to the allega- tion, that it was the duty of the defendant to give notice to the plaintiffs of iiis intention to pidl down his wall, if he did not shore it up himself, it is object- ed, and we think with considerable weight, that no such obligation results, as an inference of law, from the mere circumstance of the juxla-j)osition of the walls of the defendant and the plaintiffs. But we think ourselves not called upon, on the present occasion, to decide this question : for, the count goes on to allege that it was also the duty of the defendant to use due care and skill, and take due, reasonable, and proper precautions, in pulling down his wall *264 adjoining to the plaintiffs' * vault ; so that, for want of such care, skill, and precaution, the plaintiffs' vault might not be injured ; and we think that duty is clearly iinposed by law; and that a breach which alleges that the defendant conducted himself so carelessly, negligently, and unskilfully, in pulling down his walls, as by reason thereof to injure the plaintiffs' wall, is well assigned ; and that, inasmuch as this latter allegation of duty is severa- ble from the former, it states a good ground of action. "Ujion the whole, therefore, we think the plaintiffs are entitled to judgment on the demurrers filed to the several pleas of the defendant." The language of Lord Tenleixlen in Walttrs v. Pfdl evidently applied to the case of a usurpation having taken place, as, otherwise, there could be no ne- cessity for showing: the same observation applies to Trower v. Chadwick; while, from the variety of points which combined to form the judgement of the Court in Dodd v. Holme., it can hardly be advanced as a decision upon this precise point. Upon the amount of caution required in cases where no easement ex- ists, depends the question, whether it is the duty of a party, intending to make alterations which may affect his neighbor's premises, to give notice of his intention (a). If the above observations are well founded, it would seem that no such duty is imposed, although,iu the present unsettled state of the law upon this point, it would be highly imprudent to neglect such a precaution. *265 * The general rule of law upon this subject is thus laid down by Brae ton : — "Nocumentum enim poterit esse justum et poterit esse injuriosum ; injuri- (a) See Masseij v. Goyder, 4 Car. & P. 161. NEGLIGENCE. 179 Negligence in fact. Harris v. Ryding. osutn nbi quis fecerit aliquid in suo injiiste — contra legem vel contra constitu- tionem prohibitus a jure; si autem prohibere a jure non possit ne faciat, licet nocumentum faciat et damnosuni, tamen non erit injuriosum, licitum esteniin unicuique facere in suo quod damnum injuriosum non eveniet vicino (a)." "An action does not lie for an act not prohibited by law ; as, if a lessee at will, by bis negligence, burn his house, an action on the case does not lie, (at the suit of the landlord), for the law does not punish him for permissive waste" (6) ; if, however, the fire be transmitted beyond the bounds of his property, and communicate to the adjoining house, he would have been liable at common law (c). Subject to the restriction already mentioned, that an encroachment must not be rem.oved with unnecessary violence, there seems nothing to take this class of cases out of the rule before adverted to — " That a i)arty confining himself within the limits of his own property may deal with it as he will." If he dig a pit, he is not bound to put a fence round it, to keep trespassers from falling into it [d). In the recent case of Harris v. Ryding (e) there had been a grant of the minerals under the land, and the defendant removed them in such a negligent manner * that the surface of the earth fell in. In this case it is ob- * 266 vious, and it appears to have been so admitted, that there existed the" natural easement of support for the upper soil from the soil beneath ; and therefore the entire removal of the inferior strata, however done, would be actionable if productive of damage, by withdrawing that degree of support to which the owner of the surface was entitled. It was a clear violation of the duty of the servient owner to do no act whereby the enjoyment of the easement could be interfered with. The seeming exception to this rule, arising from the prohibition to use dan- gerous instruments or animals for the protection of premises, without notice, depends upon the principle, that a man shall not do that indirectly which he cannot do directly ; and as such means of offence would be calculated to do more injury than he would be justified in using to defend his possession against trespassers, he shall not be allowed to do so unless he gives such no- (fl.) Lib. 4, f. 42L (6) Countess of Shretcshiry's case, 5 Rep. 13 b. (c) Tubervill v. Stamp, &c., ante, p. 242. (d) 1 Rolle, Abr. 88, pi. 4. <^) Exch. E. T. 1839. 180 ACQUISITION OF PARTICULAR EASEMENTS. Public officers. Negligence in exercise of a limited right. Jones v. Bird. tice as makes the party fully aware of the danger he is rushing upon, and the damage sustained by him clearly the consequence of his own act (a). The cases in which parties acting in a public capacity, and under the limit- ed authority conferred by their office, have been held liable for the injurioua consequences of their want of care, do not afford any authority upon this subject — whether they are liable for not taking due and proper j)recaulions in * 267 doing the * acts they are authorized to do ; or liable only if they have not acted to the best of their skill and judgment: the principles already adverted to do not appear to apply to them. In the case of Jones v. Bird (6), an action was brought against the Commis- sioners of Sewers, for negligently making sewers near the plaintiff's houses, whereby the foundations thereof were weakened, and the walls fell down. It aj)peared, that the sewer, which it was necessary to repair, ran immediately adjoining the plaintiff's houses with a stack o/ chimneys belonging to one of the houses resting upon the arch of it. Being necessary to rebuild this arch, the defendants, to support the chimneys, placed under them a transum and two upright posts: the chimneys fell, and in consequence of their fall, the houses fell also. Contradictory evidence was given as to whether proper care was taken in supplying the place of tlie arch. It further appeared, that there was no specific notice given to tiie owner of the house to which the chimneys belonged, of the danger in which they would be placetl. But a general no- tice was given to the inhabitants of the houses, that the sewer was repairing ; the jury having found a verdict for the plaintiff, under the direction of the Chief Justice, a rule was obtained for a new trial, which was afterwards dis- charged, the Court holding, "That the Commissioners of Sewers and agents when repairing sewers in the neighborhood of houses, were bound to take all proper precaution for their security; and that one question for the jury to consider was, whether shoring up was a proper precaution, and whether it * 268 had been omitted. I also told them," continued * AhhoU, C. J., " that, even, if they were of opinion that the stack of chimneys could not, by any shoring up whatsoever, have been prevented from falling, still it was the duty of the defendants, if they thought so, to give specific notice of the danger to the owner; and that, if they did not do so, ihey were responsible." "A&to the merits of the case," said Bayley, J., "it is contended, that the defendants (a) Post, Ch. 7. (i) 5 B. & Aid. 837. NEGLIGENCE. 181 Negligence in exercise of a limited right. Rex v. Pagham Commissioners. are protected, if they acted bona fide, and to the best of their skill and judg- ment. But that is not enou{^ ; they are bound to conduct themselves in a skilful manner, and the question was most i)roperly left to the jury to say, whether tlie doleiidants iiad done all that any skilful person could reasonably be require(Ho do in such a case." In the case of The King v. Commissioners of Setcas for the Levels of Pag-' ham (a), it was held, that where commissioners of sewers acting bona fide for the benefit of the levels for which they were appointed, directed certain de- fences against tlie inroads of the sea, which caused it to flow with greater riolence against and injure the adjoining land not within the levels, they could not be compelled to make compensation to the owner of it, or to erect new works for his protection. "I am of opinion," said Lord Tenlerden, " that the only safe rule to lay down is this, that each land-owner for himself, or the commissioners acting for several land-owners, may erect such defences for the land under their care, as the necessity of the case requires, leaving it to others, in like manner, to protect themselves against the common enemy." "It seems to me," said i?fir?/?e7/, J., " that every land-holder exposed to the inroads of the sea has a right to protect himself, and is justified in making and erecting * such works as are necessary for that jiurpose ; and the *269 commissioners may erect such defences as are necessary for the land intrust- ed to their superintendence. If, indeed, tliey made unnecessary or improper works, not with a. view to the protection of the level, but with a malevolent intention to injure the owner of other lands, they would be amenable to pun- ishment by criminal information, or ipdictment, for an abuse of the jjowers vested in them. But if they act bona fide, doing no more than they honestly think necessary for the protection of the level, their acts are justifiable, and those who sustain damage therefrom must protect themselves. If a man sus- tains damage by the wrongful act of another, he is entitled to a remedy ; but to give him tiiat title those two things must concur — damage to himself, and a wrong committed by the other. That he has sustained damage is not of it- self sufficient. Here the party may 'have sustained damage, but the commis- sioners have done no wrong. The right which each land-owner has, is to protect himself, not to be protected by his neighbors. To that right no injury has been done, nor can any wrongful act be charged against the commis- sioners." The Civil Law recognized the same distinction between acts of self-defence and ordinary acts in the use of property (a). (a) 8 B. «& Cr. 355. (b) Idem Labeo ait, si vicinus flumen (aut) torrentem averterit, no aqua ad eum perveniat, et hoc modo sit eft'ectum ut vicino noceatur, agi cum eo aquae pluvi» 182 ACQUISITION OF PARTICULAR EASEMENTS. Negligence in exercise of a limited right. The Grocers' Company v. Donne. * 270 In this case it was a fact held, that the commissioners Iiad, vvitli res- pect to making defences against the sea, the same right as the owner of the land ; and that as every owner has, as incident to the property, the right of doing whatever may be requisite for its protection from the incursions of the sea, they were not liable for the injury resulting from the erection of such de- fensive works. In the recent case of The Grocers' Company v. Donne (a), the same princi- ples were recognized. Tindal, C. J., in delivering the judgment of the Court of C. P., said,—" But the the question is, whether the facts found upon this award bring the case within the terms of the declaration. The cause having been referred, and the arbitrator having stated the facts for the opinion of the Court, we must see whether or not the facts so found raise the duty set up hy the plaintiffs in their declaration. Tlie declaration states that the commissioners wrongfully and injuriously did make, cut, and dig a certain sliaft, sewer, gutter, and ditch, near unto an ancient messuage and premises in possession of the i)]aintiffs, and did unskilfully, wrongfully, and improperly make, cut, and dig the said shaft, sewer, gutter, and ditch, so being near unto the said ancient messuage and premises of the ])laintiffs as aforesaid, and did also make, cut, and dig the said shaft, gutter, sewer, and ditch, without shoring up, propping, or duly se- curing the said messuage and premises, or the earth and subsoil supporting the walls of the said ancient messuage and premises of the plaintiffs as afore- said, in order to prevent the same from being injured by the said making, *271 cutting, and digging of the said shaft, sewer, * gutter, and ditch as aforesaid. As to the want of notice, tlie arbitrator has raised ito question. We must then look at the award, and see whether or not the commissioners have conducted themselves in an unskilful, wrongful, and improper manner in the construction of the sewer in question. The allegation of unskilfulness is negatived by the award, for it expressly finds that the work was done in a skilful and proper manner. But the question is, whether tlie commissioners are to be mulcted in damages by reason of their having proceeded by a i)ro- cess called tunnelling, in preference to open cutting. If the award had found, that, in the judgment of experienced men, no injury would have resulted to arcendse non posse, aquam enim arcere, hoc est, curare ne influat : quae sententia verior est, si modo non hoc animo fecit ut tibi noceat, sed ne sibi noceat. — L. 2. § 9. if. De aq. et aq. pi. arc. Aggeres juxta flumina in private facti, in arbitrium aqusB pluvise arcendae ve- niunt, etiamsi trans flumen noceant ; ita si memoriaeorum extet, et si fieri non de- puerunt.— L. 23. § 2. fF. Ibid. (a) 3 Scott, 356; and cases there cited. NEGLIGENCE. ia3 Negligence in exercise of a limited right. Daniels v. Potter. the plaintiffs, had the commissioners proceeded by open cutting, the plaintiffs would have been entitlnd to a verdict. But the arbitrator finds that there was risk in either way, tliough less in degree from open work than from the other mode: and if the commissioners were bound to |)ursue that mode which gave the greatest possible chance of escape from injury, the verdict ought to be entered for the plaintiffs. But how are we to say that the commissioners are to be liable in damages, not because they did not preform the work in a skilfu!, proper, and workmanlike manner, but because they did not adopt that course which afforded the utmost possible chance of averting danger ? The Court is not to balance possibilities. We are called upon to pronounce a judgment against the commissioners, because, had another mode of operation been resorted to, by some remote possibility the damage of which the plain- tiffs complain might not have accrued. It seems to me that the plaintiffs can only entitle themselves to a verdict by showing that the injury * * 272 would not have happened if the sewer had been constructed by open cutting : and consequently the verdict must be entered for the defendant." Where, however, from the situation of the premises, the acts of the party, though done entirely on his own property, may be productive of injury to the public, he is bound to exercise such a degree of care and caution as shall pre- vent persons exercising, on their part also, reasonable care to avoid the danger. If, however, he has used such due caution, he will not be liable for injury ari- sing from the interference of a wrong doer. Thus, in Daniels v. Potter and Others (a), an action was brought for negli- gently permitting the flap of the defendants' cellar to remain unfastened whereby it fell upon and broke the plaintiff's legs. It appeared in evidence that the flap was placed in a slanting position, on a projecting ledge, about a foot above the pavement. It was not fastened in any way, but merely leaned against the window of the defendants' warehouse and the house adjoining. One of the plaintift's witnesses said, that the passing of a stage-coach or hea- vy waggon might have the effect of shaking it down. The defendants' wit- nesses stated, that the flap was pulled over by some boys who were playing about, and who, though warned by defendants' men, would not go away ; and that the flap had been placed in the same way for many years, and that no accident had happened. Tindal, C. J., said, " The defendants were bound, in placing the flap, to use such precaution as would preserve it under all ordinary circumstances from falling down ; but if it was so secured, and a third person * over * 273 whom they had no control, came and removed it, then I think the defendants will not be liable. The plaintiff says, that the flap fell in consequence of the (a) 4 C. & P. 262. 184 ACQUISITION OF PARTICULAR EASEMENTS. Negligence in exercise of a limited right. Daniels v. Potter Proctor v. Harris. negligence of the defendants; tlie dsfendants'case is, that it was phiced se- curely, and that a vvrong-docr pulled it over on the plaintiff, and your verdict will be for the plaintiff or the defendants, according as you believe the one or the other of these stories. Tliere is no doiil)t as to the law of tiie case. The question for your consideration will be, whether ni)on this occasion tiie defen- dants and their servants did use due and ordinary care in placing up this flap so as to prevent any accident from happening. It might certainly have been secured by a string, or by a hook, or by some person holding it, if tliat were necessary to the security of it. A tradesmen under such circumstances is not bound to adopt the strictest means, but he is bound to use such care as any reasonable man looking at it would say is sufficient ; and if he does use sucli care in the placing of the flap, and a wrong-doer comes and displaces it from the position in wiiich it has been placed, it being that in which a careful man would place it, he will not be answerable in an action, but the party must look, for compensation to such wrong-doer who so displaced it." The jury found for the plaintiff. So, too, in Proctor v. Harris (a), where the action was brought against a publican for leaving open a trap-door on the foot-pavement, in the evenings after the lamps were lighted. It appeared that the defendant had, immedi- * 274 ately before the accident occurred, been * lowering a butt of beer into his cellar through this very apperture. Tindal, C. J., in summing up, said, "The question is, whether a proper de- gree of caution was used by the defendant. He was not bound to resort' to every mode of security that could be surmised, but he was bound to use such a degree of care as would prevent a reasonable person, acting with an ordina- ry degree of care, from receiving any injury. The public have a right to walk along these footpaths with ordinary security. It may be said, on the one hand, that these kinds of things must be, and that trade cannot be carried on with- out them ; but, on the other hand, it must be understood, that as they are for the private advantage of the individual, he is boinid to take proper care, when he is using his cellar, to prevent injury. With respect to the plaintiff, you will have to consider whether there was so little care and caution on his part, that he was himself guilty of negligence in running into the danger. If there had been sufficient light, most likely it would have prevented him from fall- ini' in. A more infirm person might have sustained a greater injin-y than it appears the plaintiff has received. The question is, whether you think this flap was in the nature of a nuisance, used ill tlie manner it was, and whether, looking to all the circumstances, the plaintiff fell in, owing to the negligence and carelessness of the defendant, in not sufficiently protecting the place at (a) 4 Car. & P. 337 NUISANCES. 185 Nuisance, what. Legalized by time. ?his hour, being after dark. If you think so, you will find for the plaintiff. But, if you think that the plaintiff did not himself use due caution in the mat- ter, then you will give your verdict for the defendant." Sect. 5. — Legalization ■of JVuisances. * The term nuisance is applied, in the English law, indiscriminfitely, *275 both to disturbances of an easement already acquired, and infringements up- on the natural rights of property, for which an action can be sustained. Strictly speaking, however, the term nuisance should be confined to the latter class of injuries only — those acts which, though originally tortous, as infring- ing the common law rights of pro|»erty, may nevertheless, in process of time confer a prescriptive title by enjoyment. This distinction may be further il- lustrated by considering, that when the matter of complaint is the disturbance of an easement, the acts done, if allowed to be continued for a certain period, would be evidence to show that no easement existed ; whereas, in the case of a nuisance, properly so called, the effect of a similar coatinuance will be evi- tlence of a right. Many acts done upon a man's own property, which are in their nature inju- rious to the adjoining land, and consequently actionable as nuisances, may be legalized by prescription. Thus, the right not to receive impure air is an in- cident of property and for any interference with this right an action may be maintained ; but by an easement acquired by his neighbor, a man may, it ap- pears, be compelled to receive the air from him in a corrupted state, as by the admixture of smoke or noisome smells, or to submit to noises caused by the carrying on of certain trades. Thus, too, with regard to flowing water, though the right to receive the stream in its accustomed course is an casement, yet the right not to have impure water discharged upon a man's land is one * * 276 of the ordinary rights of property ; the infringement of which can only be justified by an easement previously acquired by the party so discharging it. Thus, it is said in Viner's Abridg. {a,) tliat an ancient brew-house, though erected in Fleet Street or Cheapside, is not a nuisance. So, it seems, that an ancient user may be ajustification for the exercise of a noisy (b) or offensive trade (c), or for discharging water in an im|)ure .state upon the adjoining land (d). (a) Nuisance, G. (b) Elliotson V. Fertham, 2 Bing. N. C. 134 ; S. C. 2 Scott, 174 (c) Bliss V. Hall, 6 Scott, 500. (, which being taken from him by the continuance of the nui- sance, it is a reason that the feoffee should have his action ; and, therefore, if "one levies a bank in a river, whereby part of my land is surrounded, and af- terVvards I make a feoffment of my land to J. S., and afterwards another part is surrounded by reason of that bank, he shall have an assize of nuisance (quod fuit concessum) ; so here, for that the land of the feoffee grew a malo nd pejus de die in diem, hy reason of tire inundation made by this dam, it is reason the feoffee should have his action. The same law is for a nonfeasance, viz. for not repairing of a bank, where ifcc." Clench and Fenner, Justices, contra, were of opinion, that the feoffment ex- tinguished the tort, " and nothing had been done since the feoffment which the feoffee could punish." Upon its being moved again, the justices all agreed that the action was well brought, and it was accordingly adjudged for the plaintiff. Another action on the case, between the same parties, for the continuance of a certain bank (quandam.molem), appears to have been decided in favor of the defendant on demurrer to the declaration : — "All the justices resolved for the defendant. 1st. That this action upon the case lies not, because, if it were a nuisance, the plaintiff might have his remedy by an assize or quod permittat ; and a man shall never have an action on the case where he may *284 have * any other remedy, by any writ found in the Register, for this is only given where there wants such a remedy. 2d. There is not here any offence committed by the defendant, for he allegeth that he kept and main- tained a bank, which is, that he kept it as he found it, and that is not any of- fence done by him, for he did not do any thing ; and, if it were a nuisance be- fore his time, it is not any offence in hivi to keep it ; but the plaintiff is to have his remedy to abate it by a quod permittat; and, therefore, tliis case differs from 4 Ass. pi. 3, for there the using was a new nuisance, but is not so here" (a). In the report of the same case in Moore [b), it is stated, " that the bank was levied before the defendant was enfeoffed;" and it was adjudged "by the Court, that the action lay for the continuance against the feoffee, and that in (a) Cro. Eliz. 520. There appears to be some mistake in the report here, as the defendant not only kept, but also levied the dam, though not in the plaintiff's time : the Court ap- pear to have confounded the right of a plaintiff to sue with the liability of a de- fendant to be sued for the continuance of a nuisance erected before his estate com- menced. (h) 353, nom. Beswick v. Comeden. NUISANCES. 191 Doctrine of coming to nuisance exploded. Rolf v. Rolf. Penruddock's case. such case it would lie against an heir ; and a case was cited of Rolf v. RolJ in this Court, where a iiouse was built so near to another house, that the (new) one annoyed tlie other with continual droppinj,^, and the fcofTinent was made of the new Iiouse ; and it was adjudged that an action on tiie case would lie against the feoffee for the continuance." According to this latter report, these cases are only an authority for the po- sition — that the feoffee of a party who erected a nuisance is liable for its con- tinuance — a * position which, excejit in some particular cases, ap- * 285 pears hardly to have been questioned. The report of the case of Rolf v. Rolf, as given by Lord Coke (a), is alto- gether different, and fully confirms the passage from Fitz. N. B., above cited. John Rolf was seised of a house in fee, and Richard Rolf was seised of a piece of land adjacent to the said house, and on tliis he built a new house so nearly adjoining the house of John, that the rain fell thereon from the roof of his new house. John Rolf died, and his house descended to his son, as did the new house and land to the son of Richard, who refused, upon request made to him, to remove the projecting eaves, and John, the son, accordingly brought an action against him, and upon demurrer it was held, that the action lay — because the defendant, on request, did not reform the nuisance which his father made, but suffered it to continue to the prejudice and damage of the son and heir of him to whom the wrong was done. In Moore, 449, nom. Beswtck v. Comeden, three exceptions are taken : 1st, That assize lay and not case. 2d, That " custodire and manutenere" are not sufficient words of tort. And 3d, That a quod permitlat lay by the statute, and not an action on the case. And it was adjudged, that the plaintiff should take nothing by his writ. In another report, nom. Besivick v. Omuden (6), it is said, " adjudged that the feoffee shall have an action on the case for a nuisance erected before his time, and continued during his time, but only for the continuance." *In Penruddock's case (c), one Clark brought a quod permittat against *286 Penruddock and wife, " and the case was such— John Cock built a house, on his own freehold, so near the curtilage of Tlwmas Chuckley that it hung over three feet of the said cin-tilage ; and afterwards Chuckley, to whom the nuisance was done, conveyed his house to the plaintiff, and John Cock conveyed his house to the defendants ; and the first question was— whether the writ lies in this case for a feoffee or not;" and it was objected, " that when a wrong and injq. («) 5 Rep. 101. (b) Moore, 599. (c) 5 Rep. 101. 192 ACaUISrnON OF PARTICULAR EASEMENTS. Doctrine of coming to nuisance exploded. Some v. Barwish. Roswell v. Prior. ry is done by levying of a nuisance for whicli an action lies, that if lie who has the freehold to which the nuisance is done conveys it over, now this wrong is remediless. As if the landlord encroaches on the rent of his tenant, the tenant cannot avoid this wrong in an avowry ; but in an assize, or a ces- savit, oi: a ne injush vexes he may. But if the tenant to whom the wrong is done enfeoffs another, his feoffee shall never avoid this wrong, for he shall take the land in the same plight as it was given him." And so in the case of common. "But It was answered and resolved, that the dropping of the water in tlie time of the feoffee was a new wrong, so that the permission of the wrong by the feoffor, or his feoffee, to continue to the prejudice of another, should be furnished by the feoffee of the house, &c., and if it be not reformed after re- quest, a quod permittat lies against the feoffee." Tliis judgment was affirmed on a writ of error, and "so this case was adjudged by all tiie judges of Eng- land." In Some v. Barwish (a), it is said, " It was also held that for a nuisance erect- * 287 ed in the time of the devisor, * and continued afterwards, (as this case was), the devisee shall join in the action ; for the continuance thereof is as the new erecting of such a nuisance." In Roswell v. Prior, as reported in 12 Mod. 635, after giving the decision that an action lay for continuing a nuisance either against the lessor, or his lessee, at the plaintiff's option, there is the following dictum : — " But if this action here were brought hy an alienee of the land to which the nuisance was against the erector, and the erection had been before any estate in the alienee, the question would have been greater ; because the erector never did any wrong to the alienee." The reports of this case in Salkeld and Lord Ray- mond (6), contain no such dictum, which, at the utmost, amounts to a doubt only, and is directly at variance with the decisions in Rolf v. Rolf and iaPerv- ruddocKs case. The following authority has been frequently cited on this point : — In Com. Dig. (c), it is said, " So it does not lie for a reasonable use of my right, though it be to the annoyance of another. As if a butcher, brewer, &c., use his trade in a convenient place, though it be to the annoyance of his neighbor." No authority is cited. This appears, however, to refer rather to the amount of annoyance requisite to give a right of action at all for a nuisance, tlian to the right to cause one. (a) Cro. Jac. 231. (6) Vol. 2, 460 ; vol. 1, 392, 713. (c) Nuisance, (G). pi. 18. NUISANCES. 193 Doctrine of coming to nuisance exploded. Brewery case. EUiottson v.Feetham. In Viner's Abr. (a) it is said, " If a man build a kiln to burn chalk, to the nuisance of my house and trees next adjoining, and after discontinues the use of it, and then dies, and his heir renews the use of it again, this is a new nui- sance by the heir, and a q'uod permitlat lies against him for it. But otherwise it would be, if the * kiln never was discontinued in the life of the * 288 father, but had been always used, and the heir continued to use in the same manner ; for there no quod permittat lies against him. — 4 Ass. 3. The case itself (6), of which this purports to be an abstract, does not con- tain the last of these two positions ; in addition to which it is expressly relied on in PenruddocKs case as an authority for a quod permittat lying in a case where, if the above question were correct, it clearly could not have been maintained. The position in Viner would no doubt be true, if sufficient time had elapsed to confer a prescriptive title on the father, and no addition had been made by the son ; but of this no mention is made in the Year Book. " Where there hath been an ancient brew-house time out of mind, although in Cheapside or Fleet-street, &c., this is not any nuisance, because it shall be supposed to have been erected when there were no buildings near. Contra — If a brew-house should be now erected in any of the streets or trading places, this shall be a nuisance, and an action on the case lies for whomsoever shall receive any damage thereby ; and accordingly in an action brought by one Robins, a laceman, in Bedford-street, against a brewer, for a nuisance from the brew-house to the goods in his shop, (it being a brew-house of ten years' standing), the jury gave for two years' damages, £60." The obvious inference from which is, that the laceman's shop had only been opened during the two years for which the damages were given (c). In the recent case of EUiottson v. Feetham and Another {d), the declaration complained of a nuisance to * the plaintiff's dwelling-house, from * 289 certain workshops and a manufactory for the working of iron, belonging to the defendants. The defendants pleaded, " That they were possessed of their said workshops and manufactory in the declaration mentioned, long, to wit, for the space of ten years, before the plaintiff became possessed of his said term of and in the said messuage or dwelling-house, with the appurtenances, in the declaration mentioned ; and that the defendants always from the time at which they so became possessed of their said workshops and manufactory, down to and until the plaintiff so became possessed of his messuage or (a) Nuisance (L). (b) Vide ante, 279. (c) Viner Abr. Nusans (Mc). (d) 2 Bing. N. C. 134 ; S. C. 2 Scott, 174. 25 194 ACQUISITION OF PARTICULAR EASEMENTS. Doctrine of coming to nuisance exploded. Elliottson v.Xeetham.^Bliss v. Hall. dwelliiigrhouse with the appurtenances, as aforesaid, used, exercised, and car- ried on the said trade and business of ironmongers, and worked iron, and made and manufactured ironmongery goods in their said worksliojjs and man- ufactory, without any let, suit, interruption, molestation, or complaint, by or on the part of the owners or occujiiers of the said messuage or dwelling- house now of the plaintiff; and that the defendants, from the time the plain- tiff so became possessed of las said messuage or dwelling-house, hitherto, had continued to use, exercise, and carry on the said trade and business of ironmongers, and to work iron, and make and manufacture ironmongery goods in their said workshops and manufactory, in the same manner as they had always, from the time of their becoming possessed of their said work- shops and manufactory, down to and until the time when the plaintiff so be- came possessed of his said messuage or dwelling-house, been used and ac- customed to do, and without maldug or causing to be made in their said workshops and manufactory larger fires, or louder, heavier, more jarring, va- * 290 rying, or agitating, hammering, * or battering sounds or noises than the defendants bad during all the previous time been accustomed to do, or than were necessary and requisite to enable them to carry on their said trade and business in and upon their said workshops and premises, in the same manner as they had always theretofore been used and accustomed to do." Upon demurrer to the replication, the plea, which it was attempted to^sup- port on the authority of the case of Leeds v. Slmkeiiy (a), was held bad, " the Court intimating, that the defendants should at least have alleged a liolding of twenty years' duration." Judgment was given for the plaintiff. In Bliss V. Hall (6), an action on the case was brotight for a nuisance, occa- sioned by the defendant carrying on the business of a candle-maker. The defendant pleaded that he was possessed of the messuage in which &c. for three years before the plaintiff became possessed of the house to which &c., and had during all that time carried on his business " in the same manner and degree, and to the same extent, and at the same hours, as at the time when " the nuisance complained of took place. Upon demurrer to this plea, the Court gave judgment for the plaintiff. Tindal, C. J., said, " The plaintiff in his declaration complains that the de- fendant wrongfully carried on in messuages contiguous to the messuage of the plaintiff the trade or business of a candle-maker, &c., by means whereof di- vers noisome, noxious, and offensive vapors, fumes, smells, and stenches, is- sued from the defendant's messuages, and diffused themselves through and (a) Ante p. 277. (b) 5 Scott, 500. NUISANCES. 195 Doctrine of coming to nuisance exploded. Bliss v. Hall. about the plaintiff's messuage, thereby corrupting the * air, and mak- * 291 ing the plaintiff's dwelling offensive and unwholesome, &c. "Tlie defendant, in answer, says, that he was possessed of his messuages for the space of three years next before the plaintiff became possessed of his messuge, and that he had, during all that time, carried on the trade of a can- dle-maker there, to the same extent and in the same manner as at the time complained of. That plea appears to me to afford no answer whatever in point of law to the charge in the declaration, which unquestionably is a nui- sance. It may be that the defendant was the first occupier ; but the plaintiff came to his house clothed with all the rights appurtenant to it, one of which at common law is, a right to wholesome and untainted air, unless the business which creates the nuisance has been carried on there for so great a length of time, that the law w ill presume a grant from his neighbors ixa favor of the party who causes it. EUiotlson v. Feetham decided the point." Pa7-k, J., cited Penruddock^s case (a), and observed, " EUiotlson v. Pettfiam is identical with the present case. As the Lord Chief Justice there observed, * when a man takes a house he takes it with all the rights incideht to it ;* so here, even in the case supposed by the defendant's counsel, the plaintiff would have had a right to that of the deprivation of which he complains. Twenty years' user would legalize the nuisance, but here the defendant only alleges a user of three years." Vaughan, J., concurred. " An offensive trade," said the learned Judge, '' may be a nuisance or not, according to the place in which it is carried on. Here the manufactory complained of is not shown to have been * re- * 292 mote from human habitations. There is nothing upon the face of the plea to show that the nuisance is hallowed by prescription." And IMr. Justice Bosan- quet added, "It clearly is not enough in such a case as this for the defendant to show a short possession and exercise of the offensive trade anterior to the commencement of the plaintiff's possession. Nothing less than a twenty years' user will afford a defence." The right of sending on the neighboring land air impregnated with smoke to such an extent as to be a nuisance, was recognized as a servitude by the civil law in the same manner as a right of throwing water used in manufac- tories, or otherwise, upon the adjacent land {h\ though no such servitude ex- (ff) 5 Rep. 101 -, supra, p. 286. (h) Enimvero non putare se ex taberna cisearia fumum iri superiora sedificia jure immitti posse, nisi ei rei servitutem talem admittat Idemque ait, et ex su- periore in inferiora non aquam non quid aliud immitti licet. In suoenim hactenus facere licet, quatenvis nihil in alionum immitiat ; fumi autem sicut aqua? esse im- missionem, posse irjitur snperiorem rum infertore agere 'jus illi non esse id ita facere.'— L. 8. § 5. ff. si serv. vind. 196 ACQUISITION OF PARTICULAR EASEMENTS. Instances of Nuisances. isted where the right was claimed to such an extent only as was necessary for the ordinary purposes of domestic life (a) (18). It is by no means easy to define in general terms what precise amount of infringement of the general rights of property is requisite to confer a right of *293 action. There " must, at all events, be some sensible * diminution of these rights affecting the value or convenience of the property;" and though certain trades have been declared to be nuisances when carried on in particular situations, yet it appeare to be in every instance a question of fact whether such a 'degree of annoyance exists as can be said to amount to a nuisance. The fact that a private nuisance may also be indictable as a nuisance to the public, does not prevent any individual from bringing an action against the party causing it, provided he can prove that he has himself sustained some special injury thereby (6). The oldest reported case of a nuisance caused by carrying on an offensive trade is in 4 Ass. 3. already mentioned, for erecting a lime kiln. A tan-house is necessary, for all men wear shoes, and nevertheless it may be pulled down, if it be erected to the nuisance of another : in like manner of a glass-house, and they ought to be erected in places convenient for them (c). Ergo per contrarium agi poterit 'jus esse fumum immittere :' sed et intCTdictam • uti possidetis ' poterit locum habere, si quis prohibeatur qualiter velit suo uti. — Ibid. § 5. Nam et in balneis inquit vaporibus quum Quintilla cuniculum pergentem in Ursi Julii instruxisset, placuit, potuisse tales servitutes imponi.- — Ibid. § 7. (a) Pomponius dubitatur an quis possit ita agere, ' licere fumum non gravem, puta ex foco, in suo facere,' aut 'non licere.' Et ait magitis non agi posse, sicut agi non potest 'jus esse in suo ignem facere, aut sedere, aut lavare.' — Ibid. § 6. (i) Chichester v. Lethbridge, Willes, 73 ; Crowder v. Tinkler, 19 Ves. Q21. i(c) Per Hide, C J., in Jones v. Powell, Palmer, 539. (18) Prescriptive right to maintain a public nuisance, inadmissible. Mills v. HaH, 9 Wend . 315. Although the defendant has been permitted to overflow the plaintiiF 's land with his mill pond for 20 years, yet if such overflow spread disease and death through the neighborhood, it may be abated, and he must respond in damages for the special injury which any- individual may have sustained from it. iib — 8 Cowen, 152 ; 4 Wend. 9. LEGALIZATION OF NUISANCES. 197 Instances of Nuisances. "The erecting a common or private brewhouse is not of itself a nuisance, nor the burning of sea-coal in it ; but if it is erected so nearjthe house of another that his goods are thereby spoilt, and his house made uninhabitable by the smoke, an action lies (a). In 1 Roll. Abr. (6) instances of nuisances are given by a man keeping stink- ing tallow and greaves, the stench whereof drove away the guests from the plaintiff's house ; and by erecting a smelting-house adjoining jjlaintifT's field, whereby the grass was withered and his horses and cows killed. * In 2 Roll. Abr. (c) the instances given of trades which are nui- * 294 sances at law, are : — A glover making a lime-pit so as to corrupt a water- course ; a man levying a pig-sty so near a house that by reason of the smell the owner cannot live therein ; the erecting a lime-kiln ; and "a dyer erecting a dye-house so near to my house that I cannot dwell therein, pur le fetorj^del fume et auter sordides." In AldrtcPs case [d), the declaration stated, that, by reason of the stench from the defendant's pig-sties, "the plaintiff and his servants could not remain in his house for fear of infection." In Rex v. Pierce (e), an information was brought against the defendant, by the Recorder of London, for erecting and continuing a soap boilery in Wood- street. It was held by Jefferies, C. J., " That, though such a trade is honest, and may be lawfully used, yet if by its stench it be an annoyance to the neighbors, it is a nuisance." A case is also mentioned of a " calenderman in London, in Bread-street, who was convicted before Lord Hale on such an in- formation; for that the noise of his trade disturbed the neighbors and shook the adjacent houses :" and another case of a brewhouse, on Ludgate-hill, Rex V. Jordan, where defendant was compelled " to prostrate the same and convert it to other purjjoses ; for that such trades ought not to be in the principal parts of the city, but in the outskirts." A case is cited in Jones v. Powell {/), of an action brought against a dyer, " Quia fumos, foeditates, et alia sordida juxta parietea querentis posuit, per quod parietes putridse devenerunt, et ob metum infectionis * per hor- * 295 ridum vaporem, fcc, ibidem morari non audebat." (a) Agreed per Cur. Ibid. (6) 88. Action on the Case, pi. 6, 7. (c) Nusans. 141, pi. 13, 14, 15, 18. (d) 9 Reports. (e) 35 Car. 2 ; Shower, 327, Case 329, (/) Hutton, 136. 198 ACQUISITION OF PARTICULAR EASEMENTS. Instances of Nuisances. In Jones v. Powell, a bi-evvhouse in which sea-coal was burnt, was held to be a nuisance. In Baines v. Barker (a), Lord Hardwicke refused to grant an injunction to stay the building of a small-pox hospital, in Cold Bath Fields, very near the houses of several of the plaintiff's tenants ; though it appeared that in the lease of the house in question, granted by the plaintiff to the defendant, there was a covenant against turning it into a brewhouse, because it would be a nuisance. The Lord Chancellor said, "I am of opinion it is a charity likely to prove of great advantage to mankind. Sucii an hospital must not be far from a town, because those that are attacked with that disorder, in a natural way, may not be carried far. There was lately an indictment, at the summer assizes, 1750, in Sussex, against one Fremen, for such an hospital. The de- fendant was acquitted. " So, an action doth not lie for a reasonable use of my right, though it be to the annoyance of another ; as if a butcher, brewer, &c., use his trade in a convenient place, though it be to the annoyance of his neighbor (6)." (19). " It would be a needless task to enumerate all the instances of nuisance for which an action may be maintained. It may be sufficient to observe, that the erection of any thing offensive, so near the house of another as to render (a) Ambler, 153. (b) Com. Dig. Action on the case for a nuisance, (C.) : no authority cited. (19) A right to use merely, cannot confer a right unreasonably and unnecessarily to prejudice the rights of others. — 9 Conn. 30.5. It is said, by one whose word has been pronounced to be law, that an action on the case does not lie for the reason- able use of my right, though it be to the annoyance of another ; (Com. Dig. tit. Action upon case for a Nuisance, C.) clearly implying, that such an action will lie for an unreasonable use of one's right. Thus, if one carry an unreasonable weight, with an unusual number of horses, on a highway, it is a ndisance. Com. Dig. tit. Chimin. A. 3. So if the house of two te'naints in common or joint-ten- ants be ruinous, a writ de reparatione facienda lies against him, that will not re- pair. Fitz. N. B. 127. Co. Litt. 200. So if the house of A. be near the house of B., and A. suffer his house to be so ruinous that it is like to fall upon B.'s house, B. may have a writ de donio reparando ; or, on special damage, an action on the case. Co. Litt. 56. a. and n. 375. by Harg. So an action lies against him, who corrupts the air, by noxious trades. Hutt. 136.9 C6. 59. Cro. Car. 510. 2 Ld. Raym. 1292. The maxim sic utere tuo vt alienum non ladas applies to a wagoner who uses the public highway ; the butcher and tallow-chandler who exercise their tradies- See also the case of Rlanchard v. Baker, 8 Greenl. 253. LEGALIZATION OF NUISANCES. 199 Instances of Nuisances. it useless and unfit for habitation, e. g. the erection of a swine-sty, lime-kiln, privy, smith's forge, tohacco-mill, tallow-furnace, near a common inn, or the like, is actionable (a)." (20). (a) Sel. N. P. 9th Ed. 1137; ElLiottson v. Feetham, 2 Bing. N. C. 134; Bliss y. Hall, 5 Scott, 500. (20) Nuisance. — In an indictment for keeping or erecting a house, which is a nuisance, two things only are necessary to be stated : — 1. That from the nature of the estabhshment, it may be an annoyance. 2. That, from its situation, it has ac- tually become so. State v. Purse, 4 M'Cord, 472. 2. A house, which, from the purpose for which it is used, or the situation in which it is placed, may not be a nuisance, may become so by negligence in keep- ing it ; and when that is the ground of prosecution, it must be so laid in the in- dictment, ib. 3. The erection of any building, which from its disagreeable odor or noxious affluvia, is offensive, or unwholesome, may be a nuisance ; but whether it actually is or is not so, must depend on circumstances, ib. 1. (Nuisance in Turnpike road.) A turnpike road is a public highway ; and an indictment will lie, as for a public nuisance, against any person placing obstruc- tions thereon. Commonwealth v. Wilkinson, 16 Pick., 175. 2. (Obligations of towns as to roads.) Towns are not obliged to keep the whole of a highway from one boundary to the other, free from obstructions and fit for the use of travellers. Howard v. North Bridgicater, 16 Pick., 189. 3. Thus, where the travelled part of a highway was raised with a gutter on each side, and beyond the gutter on one side and at the distance of nearly eight feet from the travelled path, were large loose stones which occasioned an injury to a traveller's horse, it was held, that the town was not answerable for the^in- jury. ib. ^ CHAPTER VII, PARTY WALLS AND FENCES. Party walls presumed to be in common. Presumption rebutted. * 296 * Although, strictly speaking, the rights and liabilities of the own- ers of property adjoining to a party-wall relate principally to the doctrine of tenancy in common, yet, some of the rights exercised over it partake of the character of easements. The common user of a wall adjoining lands belonging to different owners is prima facie evidence that the wall and the land on which it stands belong to the owners of those adjoining lands in equal moieties, as tenants in com- mon (a). , Where the* precise extent of land originally belonging to each owner can be ascertained, the presumption of a tenancy in common does not arise, but each party is the owner of so much of the wall as stands upon his own land (6). (21). (a) Cuhitt V. Porter, 8 B. «& Gr. 257, and note, p. 259. (6) Matts V. HawkinSy 5 Taunt. 20. (21) The property in the wall follows the property in the land. — It does not follow that either party may pull the wall down though there be but one wall. Thus in Wiltshire v. Sidford, 1 M. & Ry. 404, where it appeared that tli:& plaintiff was the owner of a house at W., and that the defendant having purchased an adjoining house, pulled it down and rebuilt it ; and in doing it built upon and against the wall which the plaintiff claimed as his. The Judge told the jury, that if they were satisfied that there was but one wall, neither could maintain trespass, and the jury returned a verdict for the defendant. Littledale, J. " Two things were left to the jury, namely whether there was more than one wall, and if not, wheth- er that was not a party wall. The plaintiff says, the Judge has misdirected the jury, in not drawing their attention to the property in the soil, and Matts and Hawkins has been referred to. To that case I certainly subscribe ; the property /t, PARTY WALLS AND FENCES. 201 Presumption, rebutted . In tlie latter case, there seems no authority for saying that the rights of the respective owners of the portions of the wall differ from those of the propri- etors of any other two walls which abut on each other : unless prevented by some easement having been acquired, either party would be at libetty to pare away or even entirely to remove his portion, notwithstanding the * * 297 other half might be unable to stand without the support of it (a). At the ut- most, the fact of the close union of tlie walls could only impose a duty of greater caution than might otherwise be required in removing the materials. "If," said Bayley, J., "the wall stood partly on one man's land and partly on another's, eitiier party would have a right to pare away the wall on his side, 80 as to weaken the wall on the other, and to produce a destruction of that which ought to be the common property of the two (b). In general, however, party-walls will be found " to be bui}ton the common property of the two, and to be the common property of b^th ;" and, in the absence of any further proof than that which is afforded by evidence of a common user, such will be presumed, to be the case (22). (a) 8 B. «& Cr. 264. (&) Cubitt v. Porter, 8 B. & Cr. 257. in the wall follows the property in the land. It does not follow that either party might pull the wall down, for each has a right to use the property of the other. The jury, by finding that it was a party wall, have negatived an entire property in the plaintiiF. If they were tenants in common of the soil, the conclusion is right." By St. in Pennsylvania, " the first builder, shall be reimbursed one moiety of the charge of such party wall, or so much thereof as the next builder shall have occasion to make use of, before such builder shall any ways break into the said wall." And it has been held, that this right is a personal right against the second builder, and oji, payment by the owner of the adjoining lot, the claim is extin- guished ; so that a purchaser from the first builder cannot recover when a second building shall be erected. It is not a lien- on the land, and no action can be sup- ported against the assignee of the second builder. The first builder is confined to his personal remedy. 5 S. «fc R. 1 ; 1 Dall. 341. A. a builder proposes to B. the occupier of an adjoining house, to build a party wall, and states the expenses. B. answers, very well ; I expect to pay what is right and fair ; and the wall is built. Held, that A. was entitled to recover his share of the expense without reference to the building act. Stuart v. Smith 2 Marsh. 435 ; 7 Taunt. 158, S. C. (22) Fences. — Parsons, C. J. (in Rust v. Lo7o, 6 Mass. 90.) "At common law, the tenant of a close was not obliged to fence against an adjoining close, unless by force or prescription ; but he was, at his peril, to keep his cattle on his own close, and to prevent them from escaping. And if they escaped they might be taken on 26 202 ACQUISITION OF PARTICULAR EASEMENTS. Building act. Obligation to keep in cattle. Spurious easement, to repair. In the Metropolis, party-walls are regulated by the provisions of the Build- ding Act, Stat. 14 Geo. 3, c. 78. The only general obligation with respect to fences imjiosed by the common law is, that every proprietor of land should prevent, by fences or other means, his cattle from trespassing on the land of his neighbors. There may, however, be a spurious kind of easement obliging an owner of land to keep his fences in a state of repair, not only sufficiently to restrain his whatever land they were found damage feasant; or the owner was liable to an action of trespass by the party injured. And where there was no prescription, but the tenant had made an agreement to fence, yet he could not be compelled to fence, and the party injured by the breach of the agreement had no remedy but by an action on the agreement ; (Cro. Eliz. 709, Nowel y. Smith.) In the case of a prescription to fence, he could be obliged to fence by the writ of curia clauden- da, sued by the tenant of the adjoining close, who might also recover damages by that writ ' (Fitz. N. B. 297.) When our ancestors first settled in this country, they found it uncultivated ; and when closes were made by the settlement and cultivation of the lands, there could be no prescription to fence ; and therefore the common law authorizing the writ of curia claudenda, being inapplicable to the state of the colony was never introduced. Provision respecting fences was early made by the legislature of the colony of Massachusetts Bay, which expired with the repeal of the first charter. Afterwards the obligations to fence were regulated and enforced by laws passed by the legislature of the province of Massachusetts Bay. These laws continued in force until their reversion by the legislature of the commonwealth ; and the statutes passed by this legislature are the foundation of all the obligations imposed on the citizens by law to make and to repair fences. " By the statute of 1785, c. 52, legal, sufficient fences between adjoining occupied closes may be made and kept in repair, through the whole year, at the will of either tenant, but at the equal expense of the two tenants, each tenant being liable to the charge of making half the fence. What shall be deemed a .-sufficient fence is defined by the statute ; and if the tenants do not agree on the division of the fence, or if either neglects sufficiently to make or maintain his p^rt, a remedy is expressly provided. Each town is to choose annually two or more fence-view- ers, to be sworn to the faithful discharge of the duties of the office. And any two of these officers are authorized, at the request of either tenant, to divide the fence on the line on which the fence is to be made, and to assign to each tenant his part, which he and the succeeding tenants are to make and maintain ; and also, at the request of either tenant, to decide whether the fence of the other is suffi- cient or not. And if either tenant after such division and assignment duly made in writing, and recorded in the town clerk's office, shall neglect to make or main- PARTY WALLS AND FENCES. 203 Spurious easement to repair. own cattle within bounds, but also those of his neighbors (a) ; and rendering him liable for any injury which his neighbor's cattle may sustain in conse- quence of the nonrepair * of the fences, which, unless an easement * 298 had been acquired, he clearly would not be. This liability is, however, con- fined to the cattle of his neighbor, or such as are rightfully on the adjoining land, and does not extend to all cattle whatsoever, though they may have en- tered through the land of the party towards whom this obligation to keep the fences in repair legally exists. "If the cattle of one man escape into the land of another, it is not any excuse that the fences were out of repair, if the cat- tle were trespassers on the close from whence they come." Per Heath, J., in Donaston v. Payne [b). , In an annonymous case reported in Ventris ( c), the plaintiffs declared that (a) Per Baijley, J., Boyle v. Tamlyn, 6 C. & Cr. 337-9. (b) 2 H. Bl. 527 ; vide etiam per Wilmot, C. J., 3 Wilson, 126. (c) 256. tain his share so assigned, the other tenant may do it ; and may recover at law against the negligent tenant double the expense, as ascertained by the fence- viewers; with twelve per cent interest, if on notice and request it be not paid. This statute does not make void any written agreement respecting the making and repairing offences. " The legal obligations of the tenants of adjoining lands to make and maintain partition fences, where no written agreement has been made, rest on this statute. But in this position are not included adjoining lands, which are not both occupied by their respective owners, nor lands inclosed in a general field or common pas- ture, nor a close adjoining to a highway. These cases may be governed by differ- ent rules. " An assignment pursuant to the statute imposes the same duty as would result from a prescription ; and instead of a curia claudenda, one tenant may make and repair the fence belonging to the other on his neglect, and recover of him. double the expense with double interest And instead of averring in pleading, that the tenant has used by prescription to make or repair, in the technical form, it is suf- ficient to allege that he is obliged by law to make and repair ; and give the assign- ment in evidence. " When there has been no assignment, butonly a written agreement executed by the tenants of the adjoining closes, it may be a question whether such agreement shall have the force of an assignment; and if not, whether the tenant, whose cat- tle have escaped, can plead such agreement ir: bar of an action of trespass, or must have his remedy by an action on the agreement. It ig true that a cuna claudenda does not lie, but against a tenant, who is obliged by prescription to repair. And by analogy an agreement between the tenants, making a division of the fence, each 204 ACQUISITION OF PARTICULAR EASEMENTS. Liability for Driving or enticing animals. Rooth v. Wilson. the defendants were bound to maintain a certain fence, and that, by reason of their neglect to do so, a mare of the plaintiff's escaped through the fence, and was drowned in a ditch. After verdict for the plaintiff on motion in arrest of judgment, the Court held, that the plaintiff was entitled to recover. In Rooth V. Wilson (a), where a person to whom a horse had been sent, turn- ed it into a pasture, and by the defect of the fence, which the neighboring owner was bound to repair, it fell down into the neighboring close and was killed; the liability of the defendant for the consequences of his neglect in not repairing, was not disputed, the only point -made, being that the bailea could not nriaintain the action (by (a) B. & Aid. 59. (b) See also Powell v. Salisbury, 2 You. &, Jer. 391 . one mutually undertaking to repair his part, would not authorize one tenant, who had made or repaired the fefice of the other, on his refusal, to recover of him double the expense. " But there appears to be no good reason, after an actual division by such agree- ment, if the cattle of one tenant escape into the close of the other tenant, through the defect of the fence, which the other had agreed to make and repair, why the owner of the cattle might not aver, that the party complaining had bound himself by his agreement to make and maintain the fence, and that the cattle escaped through his default. For if he had agreed to make and repair the fence, he ought by law to fulfil his agreement. " Prescription to fence is allowed at common law, as resulting from an original grant or agreement, the evidence of which is lost by lapse of time ; and it is rea- sonable that the agreement produced should be as effectual as a presumption, that it once existed, but is lost, arising from ancient usage. The country has now been settled long enough, to allow of the time necessary to prove a prescription ; and ancient assignment by fence^,viewers, made under the late provincial laws, and also ancient agreements made by the parties, may have once existed, and be now lost by the lapse of time. It seems then that the owner of the cattle may aver, that the party complaining ought by law to make and maintain the fence, in which case he must produce the assignment by fence-viewers, or show that he is bound by agreement to make and repair the fence, which agreement he ought in pleading to set out ; or that he is bound by prescription, when he should regularly plead the prescription, and may prove it by ancient usage. [See the very sensible and ra- tional opinion of Popham, C. J. against that of the other judges in the case of Jfewell V. Smith before cited.] " Every person then may distrain cattle doing damage on his close, or maintain trespass against the owner of the cattle, unless the owner can protect himself by the provisions of ^he statute, or by a written agreement, to which the parties to the suit axe panties or privies or by prescription. FENCES. 205 Liability for driving or enticing animals. Townshend v. Walhen. Analogous to this liabilty arising from neglect to do * what the par-* 299 ty was bound to «, Cro. Jac. 44; Barrington v. Ttirner, 3 Lev. 28 ; 2 Roll. Abr. 567, L. 2. (e) Palmer, 536, BOUNDARY TREES. ^ 211 Ownership of boundary trees. Masters v. Pollie. Master v. Pollie (a), was an action " of trespass, quare clmisum feregit, d as- portavit the plaintiff 's boards." The defendant justified, " That there was a great tree which grew between the close of the plaintiff and iliat of the defend- ant, and that part of the roots of the tree extended into the close of the de- fendant, and were nourished by his soil ; that the plaintiff cut down the tree, and carried it into his own close and sawed it into boards, and the defendant entered and took and carried away some of the boards, proiit ei bene licuit. The plaintiff demurred to this plea, and it was contended that the plea was bad, for although some of the roots of the tree are in the defendant's soil, yet the body [le corps del maine parte) of the tree being 5n the plaintiff's soil, therefore all the residue of the tree belongeth to him likewise. And of this opinion is Bracton ; but if the plaintiff had planted a tree in the soil of the defendant, it shall be otherwise, quod curia concessit ; but Mouniague, C. J., said, " That the plaintiff cannot limit the roots of the tree, how far they shall go. Vide 2, Ed. 4, 23" (i). In an anonymous case reported in the same volume, it is said (c), " If a tree grow in a hedge which divides the land of A. and B., and by its roots takes nourishment * in the land of A. and also of B., they are tenants in * 304 common of the tree ; and so it was adjudged." In Watervwm v. Soper [d) " It was ruled by Holt, C. J., at Lent Assizes, at Winchester, upon a trial at Nisi Prius, 1597-8 : 1st, That if A. plant a tree upon he extreeniest limits of his land, and the tree growing extends its roots into the laud of B. next adjoining, A. and B. are tenants in common of this tree ; but if all the roots grow into the land of A., though the boughs oversliadow the land of B., yet the branches follow the root, and the property of the whole is in A. 2nd, Two tenants in common of a tree, and one cuts the whole tree — though the other cannot have an action for the tree, yet he may have an ac- tion for the special damage by this cutting ; as where one tenant in commoo destroys the whole flight of pigeons." in Holder v. Coates (6), an action of trespass was brought for cutting a tree of the plaintiff. Tlie liody of the tree stood in the defendant's land, but some of the lateral roots grew into the land of both parties. The evidence as to the position of the principal root was conflicting. Littledale, J., referred to the case first above cited, from Rolle's R., and ex- pressed his preference for the Jaw as there laid down over the ruling of Lord (a) 2 Rolle, Rep. 141. (b) This reference is incorrect. (c) 25.5. (d) 1 Lord Raymond, 737. (e) Moo. &Mal. 112. 212 ACQUISITION OF PARTICULAR EASEMENTS. Ownership of boundary trees. Holt in Waterman v. Soper. The learned judge, in sutinningr "P, told the jury, that he did not see on what grounds they could find for either party, as to the proportion of nourishment derived by the tree from tlie soil of the plaintiff and defendant respectively ; " but that tlie safest criterion for them would be to * 305 consider whether, from the * evidence given as to the situation of the trunk of the tree above the soil and of the roots within it, they could ascertain where the tree was first sown or planted." Upon the jury saying that they could not tell in whose ground the tree first grew, a verdict for the defendant was taken by consent. By the Civil Law, the neighbor into whose land the roots of a tree penetra- ted was not permitted to cut them off, although he might institute a suit to contest the right. With regard to the property of a tree, the roots of which extended into two heritages, it would appear that if it derived its noui-ishment equally from both, it became common property. If it drew its nourishment substantially from one heritage only, on whichever side it was originally plan- ted, the property passed to the owner of the land supplying the nourishment (a) Potheir, in his commentary on the passage of the Digest, that " the tree re- mains the property of him in wliose soil it had its origin," says, "This is so, notwithstanding it is said in the Institutes, that the tree shall be considered his into whose soil the roots are pi-otruded ; for this is to be understood of such' a protrusion of the roots as to draw all the nourisliment for the tree * 306 from the neighboring soil ; but if my ti*ee * pushes the extremities of its roots only into my neighbor'^s soil, though it may by that means draw some nourishment therefrom, nevertheless the tree remains mine, because the tree has got its origin and the greater part of the roots in my soil." The Civil Law appears to agree with the rule as laid down in the anonymous case in RoUe, and in Watermany. Soper, and, consequently, to be at variance with the opinion of Mr. J. Litlledale. (a) Si arbor in vicini fundum radices porrexit, recidere eas vicino non licebit ; agere autemlioebit, non esse ejus, sicuti tignum, aut protectum, immissum habere : El radicibus vicini arbor aletur, taraen ejus est in cujus fundo origo ejus fuerit. — L. 6. § 2. fF. arb. furt. ca;s. ' Si vicini arborem ita terra presserim ut in meum fundum radices egerit, meam effici arborem. Rationem enim non permittere ut alterius arbor inteUigatur quara cujus fundo radices egisset. Et ideo prope confinium arbor posita, si etiam in vi- cinum fundum radices egerit, communis est. — L. 7, § 13, S. de adq. rer. dom. I". § 31. fT. de rer. div. is identical in expression with the latter authority. BOUNDARY TREES. 113 Ownership of boundary trees. The French Code contams many minute provisions upon this stjbject(a). (23) (rt) Arts. 671-2-3, Code Civil, Pardessus fraite des Servitudes, 297. (23) The law of Masters v. Pollic is upheld in the late case of Lyman v. Hale, 11 Conn. 177. Bissell. J. observes : — " The same doctrine is also laid down, in Millcn V. Fandrye, Pop. R. 161. 163. ^'orris v. Baker, 3 Bulstr. 178. See also 20 Vin. Abr. 417. I Chit. Gen. Pr. 652. We think, therefore, both on the ground of principle and authority, that plaintiff and defendant are not joint owners of the tree ; and that the charge to jury, in the count below, was, on this point, erroneous." Again : — " The bill of exceptions finds, that the defendant gathered the pears growing on the branches which overhung his land, and converted them to his own use, claiming a title thereto. And the charge to the Jury proceeds on the ground that he has a right so to do. Now if these branches were a nuisance to the defend- ant's land, he had clearly a right to treat them as such, and as such, to remove them. But he as clearly had no right to convert either the branches of the fruit to his own use. Beardslee v. French, 7 Conn. R. 125 ; Welsh v. JVask, 8 East 394 ; Dyson v ColUch, 5 B. & Aid. 600 ; 2 Phil. ev. 138. PART II. OF THE INCIDENTS OF EASEMENTS. The Incidents of Easements may be considered with reference to — 1st. The obligation to do the works necessary for the enjoyment of the ease- ment, as to make repairs. 2nd. The secondary easements ancillary to, and depending upon, the primary easements. 3rd. The extent and mode of enjoyment. CHAPTER I. OBLIGATION TO REPAIR. As a general rule, easements impose no personal obligation upon the owner of the servient tenement to do any thing^the obligation to repair falls upon the owner ofthe dominant tenement. " Ad aquae ductum," says Bracton, " pertinet purgatio, sicut ad viam pertinet refectio" (a). " Where I grant a way over my land, I shall not be bound to repair it," said Twisden, J., in Pomfret v. Ricrojl (6). " By the common law of England, he that hath the * use of a thing * 308 ought to repair it," said Lord Mansfield, in Taylor v. Whithead (c). "The grantor of a way is not bound to repair it if it be foundrous (rf)." (a) Lib. 4, fol. 222. (i) 1 Saund. 322 a ; see also Gerard v. Cooke, 2 Boa. & Pull. N. R. 109. (c) 2 Douglas, 745. (d) Com. Dig. Chimin, (D. 6). 216 INCIDENTS OF EASEMENTS. When dominant owner liable for damage. Hoare v. Dickinson. This is in accordance with the principles of the Civil Law, which imposed the burthen of repair in cases of easement upon the owner of the dominant, and not upon the owner of the servient tenement (a). By the French Code Civil [b), the expenses incurred in constructing any works necessary for the use or preservation of any easement, must be borne by the party entitled to it. What is above said is to be understood with reference only to the non-liability to repair on the part of the owner of the servient tenement. It would appear on the principles hereafter considei'ed, that where the en- joyment of the easement is had by means of an artificial work, [opus manufaC' tum), the owner of the dominant tenement is liable for any damage arising from its want of repair. Thus, if a man carries water by means of conduit- pipes through his neighbor's land, he must keep those pipes in repair. Where the easement is natural, and the injui-y to the servient tenement ari- ses from natural causes only, no such liability accrues. The case of Hoare v. Dickenson (c), where an action was brought for the bad state of repair of some water-pipes, is not opposed to the principles above laid * 309 down, * although from the point upon which the Court gave judg- ment, it cannot be treated as an authority in support of it ; nor indeed upon the facts as stated in the report could the point of liability to repair be raised ; for the declaration did not state to whom the pipes belonged, nor that they ran through the plaintiff's land, but alleged merely that the defendant caused the water to run near the plaintiff's foundations, whereby they were rotted, so that, as the Court said, the defendant was plainly a wrong-dcjer, and upon this ground they gave judgment. A question appears to have been raised in some old cases, whether there was not by the law of England an exception to the rule already laid down — that the owner of the dominant tenement was bound to make the necessary reparations. In Fitz. Nat. Brev. (c?), there is a writ commanding the mayor and sheriff of a town to summon one before them for not repairing his cellar, to the dam- (a) In omnibus servitutibus refectio ad eum pertinet qui sibi gervitutem adserit, non ad eum cujus res servit. — L. 6, § 2. U. 8, flf si serv. vind. (h) Art. 698. (c) 2 Lord Raymond, 1568. (d) 127 F. OBLIGATION TO REPAIR, 217 Spurious casement to compel servient owner to repair. Edwards v. Hallinder. age of him who has a cellar beneath it, which by the custom of the said town be was bound to repair. The other writ de repotralione facienda (a), is the case of a hous3 becoming ruinous, and dingerous to the neighboring liouses. Tliere is a case in Keilway [b), as follows ; — "It seeuis to Fineiux and Bru'Jenell in the K. li., that where I have a chamber below [meason pavaile), and another has a chamber above mino [hintp. meason], as they have here in London, in this case I may compel him who has the chamber above to cover liis chamber for the salvation of the timber of my chamber below ; and in the same manner he may com])el me to sustain my * chamber below, by the *3]0 reparation of the [)riiicipal timber, for tbe salvation of his chamber abova — JVota et stule. For some at the bar think that I may suffer my ciiamber to fall down {deschuer) ; but all were agreed tliat I could not abate my chamber to the destrutuion of the u|)per chamber, and the manner for me to compel another to sustain his chamber, ut supra., if the law be such, is by action ou the case," &ic So it is said by Rxinsford, J., in Pom/ret v. Rlcroft (c), "If a man devise by deed a middle rooaj in a house, and afterwards will not repair the roof, where- by the lessee cannot enjoy the middle room, an action of covenant lies for him against his lessor." The case iu Keilway was doubted by Lord Holt, in Tenant v. Goldivin [d), where he said, " he thought the writ in Fitzherbert must be founded upon the particular custom of places." Serjeant Williams, in his note to Pomfret v. Bi- croft,i!C) observes, " It is difficult to say upon what other ground but custom such an action can be supported." In Elwxrds v. Hallinder. (/"), an action was brought by the tenant of a cellar against the tenant of the room above, both holding under the same landlord, for overloading his floor, whereby it fell through and destroyed the plaintiff's wine in the cellar beneath. The defendant pleaded, " That, before the charging of the floor, ut supra, the said floor had sustained greater weight, and, furtlier, that the landlord let the said shop to him, to lay there the weight of thirty tons, and he had laid there but the wei|[ht of twelve tons ; and also that the walls of the said cellar were so weak that* the floor of the said sijop fell by reason thereof. * 311 Upon which there was a demurrer in lav/, and judgment was given for the plaintiff, which was affirmed on a writ of error in the Exchequer Chamber, (a) 127 C. (b) 98 b. (c) 1 Saund. 322. (d) 1 Salk. 360 ; S. C. 2 Lord Raymond, 1089. (e) 1 Saund. 322. a. (f) 2 Leon. 93 S. C. ; 6 Mod. 314 ; Popham, 46 08 2:8 INCIDENTS OF EASEMENTS. Spurious easement to compel servient owner to repair. Result of authoritieg. as it would appear, upon the ground that there being no traverse of the fact charged in the declaration— the overloading— the plea was impertinent. Noth- ing whatever was decided as to the liability to repair. Geytt, B., was of opinion, " That the defendant had not fully answered the declaration, for he was charged with the laying too much weight on the floor there, so as vi ponderis it fell down ; to which the defendant has said that the ■walls were ruinous in occultis partibiis, and doth not answer to the surcharging [sciL), absque lioc, that he did surcharge." Clarke, B., agreed with Gent, B., as it appears, in opposition to Manwood, C. B., who thought no traverse was necessary. The report in Popham gives the argument in the Exchequer Chamber ; from which it appears that the judgment was affirmed on the same ground that it was given below. In an anonymous case (a), it is said, " If a man has an upper room, an ac- tion lies against him by one who has an under room, to compel him to repair liis roof. And so where a man has a ground room, they over him may have nn action to compel him to keep up and maintain his foundation." Sed qu(Ere. For if a man build a new house under the roof of an old one which is ready to tumble, whether he shall have a writ de reparatione fadenda, because debet et consuevit are necessaiy words in the declaration." * 312 * Holt, C. J., said, " That every man of common right ought so to support liis own house as that it may not be an annoyance to another man's." The report of the case in Keilvvay in reality amounts to no more than a statement that such a point had been agitated. The dictum of Rainsforth, J., in Pomfret v. Ricroft, was probably founded, according to Serjeant Williams, upon this report ; there seems also some doubt whether it did not proceed on the ground of a covenant implied in the demise. The writ in Fitzherbert is obviously founded on a local custom only ; and the case in Leonard went off entirely on a point of pleading: there appears, therefore, to be no authority whatever to oppose to the opinion of Lord Holt, that such an obligation could only exist when specially imposed. (24). (a) 11 Mod. 8. (24) In Loring v. Bacon, 4 Mass. 575, the question arose whether the owner of the lower part of the house was obliged to contribute to the repairs of the upper part. Parsons, C. J. in delivering the judgment of the court says : — " The plain- tiff declares in case upon several promises. The first count is indebitatus assump- sit in the sum of eighty dollars, according to the account annexed to the writ, the items of which are for timber, boards, shingles, nails and labor, and victualling the workmen. The second count is a quantum meriut for the same items', tech OBLIGATION TO REPAIR. 219 Spurious easement to compel servient owner to repair. Paries oneri ferendo. The Civil Law, it is true, recognizes the existence of such an easement as this, (oneris ferendi), as distinguished from the ordinary easement of support, (tigni immittendi); but it appears, that the additional obligation of repair could only be imposed by an exjjress stipulation to that effect in the instru- ment creating the easement («), or at all events there must have been a pre- scriptive right to the repair, as well as to the support. Indeed, it has beer doubted whether such an easement could exist at all, unless the precise tech- nical expression "paries oneri ferendo" was inserted in the original grant {b). The servitude of the Civil Law, called "paries oneri ferendo" imposed upon the owner of the servient tenement * the obligation not only of sup- * 313 (a) Modus auteni refectionis in hac actione ad eum modum pertinet, qui in ser- vitute imposlta continetur; forte ut rcficiat lapide quadrato, vel lapide structilli, vcl quovis alio opere quod in servitute dictum est. — L. 6. § 5. ff. si serv. vind. (6) Stair's Inst. 328 ; Erskine Inst. 431. nically supposed to be different but similar. The third count is a general indebi« tatus assumpsit for eighty dollars, laid out and expended. The facts being agreed by the parties, the question of law comes before the court on a case stated. From this case, it appears, that the defendant is seised in fee simple of a room on the lower floor of a dwelling house, and of the cellar un- der it ; and that the plaintiff is seised in fee of a chamber over it, and of the re- mainder of the house ; that the roof of the house was so out of repair, that unless repaired, no part of the house could be comfortably occupied ; that the defendant, though seasonably requested by the plaintiff, refused to join with him in repairing it ; and the plaintiff then made the necessary repairs, and has brought this action to recover damngcs for her refusal to join in the repairs. It is also agreed that the parties had from time to time repaired the respective parts of the house at their several expense. And the question submitted to the court is, whether the plaintiff can recover in this action. This is an action of the first impression. No express promise is admitted; but if there is a legal obligation on the defendant to contribute to these repairs, the law will imply a promise. We have no statute, nor any usage upon this subject, and must apply to the common law to guide us. Although in the case, the parties consider themselves as severally seised of dif- ferent parts of one dwelling-house, yet in legal contemplation, each of the parties has a distinct dwelling-house adjoining together, the one being situated over the other. The lower room and the cellar are the dwelling-house of the defendant ; the chamber, roof, and other parts of the edifice, are the plaintiffs dwelling-house. And in this action it appears that having repaired his own house, he calls upon her to contribute to the expense, because his house is so situated that she derives 2S0 INCIDENTS OF EASEMENTS. Spurious easement to compel servient owner to repair. Paries oneri ferendo. porting the doininnnt erlifice, but niso of keeping his own biiildinfrs in such a Pt.ite of rej'i.ir, {is shoiiM c n.-ihle tlicin to titistjiin tlie iiress^nre. The ViilicUty of this serviliule, ihon^ih juhiiitted to he of an anomalous character, ajipears to have been fully estahiisiu d, notwithstanding some difference of opinion upon tliis subject (a); but still it was said that the obligation was not upon the person, but upon the tenement, and that by relinquishing the tenement, the owner's liability to repair was determined [b). This obligation to repair was, however, strictly construed, and did not carry * 314 with it as an incident any * obligation to furnish support to the dom- inant tenement during any necessary reparation of the servient tenement. In (a) Eum debere columnam restituere quce onus vicinarum tedium ferebat, cujus essent sedes quee servirent, non eum qui imponere vellet, nam cum in lege sedium ita scriptum est — paries oneri ferendo, uti nunc est, ita sit — satis aperte significari in perpetuum parietem esse debere ; non enim hoc his verbis dici, ' ut in perpet- uum idem paries Eeternus esset,' quod ne fieri quidem posset, sed ' uti ejusdem mo- di paries in perpetuum esset qui onus sustineret;' qnemadmodum, si quis alicui cavisset, ut servitutem pracbcret qui onus suum sustineret, si ea res, quas servit et tuum onus ferret, perisset, alia in locum ejus dari debeat. — L. 33. fF. de serv. prsed. urb. In servitute oneris ferendi hoc ampllus est, quod vicinus columnam aut parietem qui oneri ferendo est reficere tenetur, et idoneum onere sustinendo praestare, qua parte servitus ha;c degenerat et spuria esse agnoscitur — quippe cum contra natu- ram servitutum hoc sit ut quis cogatur aliquid facere in suo. — Vinmus, Inst. Lib. 2, tit. 3, de serv. uib. § 3. Etiam de servitute qnse oneris ferendi causa imposlta erlt actio nobis competit, ut et onera ferat et sdificia reficiat ad eum modum qui servitute imposita compre- hensus est; et Gallus putat non posse ita servitutem imponi, ' ut quis facere all- quid cogeretur' sed ' ne me facere prohiberet :' nam in omnibus servitutibus refec- tio ad eum pertinet qui sibi servitutem adserit ; non ad eum cujus res servit : sed evaluit Servii sententia, in proposita specie, ut possit quis defendcre, jus sibi esse, cogere adversarium reficere parietem ad onera sua sustineuda. — L. 6. § 2. ff. si serv. vind. (b) Labeo autem banc servitutem nom hominem debere, sed rem ; denique 11- cere domino rem derelinquere, scribit. — Ibidem. Heec autem actio in rem magis est quam in personam, et adversus dominum, gicuti cffiterarum servitutum intentio. — Ibid. § 3. a benefit from his repairs, and would have suffered a damage, if he had not re paired. Upon a very full research into the principles and maxims of the common law, Tce cannot find that any remedy is provided for the plaintitf. Houses for the habitation, and mills for the support of man, are of b^ consid" OBLIGATION TO REPAIR, 221 Spurious easement to compel servient owner to repair. tliis rfs|fct, tlie owner of ilie rloiiiiiiiirit teiun.ciit Wi s Innd lo t.-ke c.-re of liiiiifselfi liy >*! oriiiir or oll;er niejins, or, if lie neglected so to do, lie nii{;lit " take down (a) liis lionse and rebuild it when the wall was restored" [b). The analogous servitude "/(g-ni t/n7ni<■ obliged to secure the side and ends, as the case may be, against the entrance of 824 INCIDENTS OF EASEMENTS, Spurious easement to compel servient owner to repair Lord Stair. immiltendi ; or otherwise, this servitude may be, by bearing the i)ressure, or putt, of any building, for the use of the dominant tenement, as of a vault, or pend, or the like ; such is the servitude of superstructure whereby any build- ing may be built ui)oii the servient tenement. Like unto which is now fre- quent in Edinburijh, when one tenement is built above another, at diverse times, or diverse stories, *or contignations of tiie same tenement are * 316 bought by diverse pro[)rietors, and thereby the upper becomes a distinct ten- ement, and hath a servitude upon the lower tenements, whereby they must support it. The question useth to be moved here, whether the owner of the servient tenement be obliged to uphold or repair his tenement, that it may be sufficient to support the burden of the dominant tenement .' water to the annoyance of all those who own or occupy below. The owner of the lower story is compellable, also, to keep the foundation suitably repaired, to sus- tain each of the other stories, with their additional (as the case may be) superin- cumbent weiglit. These considerations, and others easily suggested, would lead to the conclusion, that a remedy, in such case, can be furnished, only by a Court of Chancery. The principles adopted, by Chancellor Kent, in Campbell v. Mesier S/- a.l. 4 Johns. Ch. Rep. 334. countenance this idea. The ca=e of Loung v. Bacon, 4 Mass. Rep. 575. was pressed by the counsel for the plaintiff. There, it was decided, that the owner of the upper story could not recover in assumpsit against the owner of the floor and cellar, for necessary repairs to the roof. Chief Justice Parsons speaks of the case in Keilway, without deciding on its authority. He does not decide the plaintiff to be without remedy : he says truly, he has no legal ground for re- covery. It will be borne in mind, that there was then [1806] no court of chance- ry in Massachusetts. The case of Carver v. Miller, 4 Mass. 559, decides that where tenant in dower agreed that Carver should repair and take the profits until he was paid. Held, that he could not call upon the reversioners in tase of the death of the widow. At common law, if there be two joint tenants or tenants in common of a wood, or of arable land, the one has no remedy against the other to make enclosures or repairs for the safeguard of the wood or crop. But a house or a mill, is of higher legal consideration ; and one joint tenant or tenant in common may have a writ de rep- aratione facienda against the other ; for each one is holden to repair and sustain his house or mill ; 11 Rep. 8-2, R.— Co. Lift. B. 3. c. 4 s. 323. Whether this maxim of the common law, as applied to mills, is in force here, may be doubtful, especially since the provincial statute of 7 Ann, c. 1. was passed, which was revised by the statute before mentioned. In the early settlement of this country, mills were erected over streams of water then sufficient, but which by the clearing of the country, have so far failed, that the mills could now be wrought but a small part of the year ; and the profits would not be a sufficient inducement to keep them in repair. To this discouragement may be added the OBLIGATION TO REPAIR. 225 Spurious casement to compel servient owner to repair. Lord Stair. "Thei-e are opinions of the learned, and probable reason u[)on both facts, for the affirmation makcth the common rule, tliat, when any tiling is granted, all things are understood to be granted therewith that arc necessary thereto ; so he who constitutcth upon his tenement a servitude of support, must make it effectual ; and for that negative servitudes arc odious, and not to be extend- ed beyond what is expressly granted or accustomed, to which we incline ; and, therefore, it would be adverted how the servitude is constituted, that, if it ap- pear the constituent had granted this servitude so as to uphold it, not upon the account of his own tenement, but of the dominant, he must so continue ; and it is not only a personal obligation, but a part of the servitude passing with the servient tenement, even to singular successors: but if it appear not so constituted, it will import no more than a tolerance to lay on or imi)ute the burden of the dominant tenement upon the servient, which, therefore, tiie owner of the servient neither can hinder or prejudge ; but he is not obliged to do any positive deed by reparation of his own tenement to that purpose ; but the owner of the dominant tenement hath right to repair it for his own use, by reason of his sen'itudc, and the owner of the servient tenement can- not * hinder him ; yea, in what he thereby advantages the servient * 317 tenement, he hath upon the owner thereby the natural obligation of recom- . pense in quantum lucratus. " If it be objected, tliat, within burgh, the owners of tlie inferior and sup- porting tenements are obliged to repair for tlic behoof of the superior tene- erection of new mills in the neighborhood, in more convenient situations. And as to saw-mills, the consumption of all the timber in their vicinity has rendered many of them useless. As there have been many mills heretofore erected, which could not now be wrought with adequate profit, it would be unreasonable to ena- ble any individual part-owner to compel liis partners in all cases to keep their mill in repair. And the statute has accordingly provided, that if a part-owner will re- pair against the consent of his partners, he shall look to the profits only for his reimbursement. But it is not necessary now to determine whether this common law remedy can or cannot be applied at this time by our courts ; for the action of contribution lay by a tenant in«tommon or joint tenant against his co-tenants only, and not against a reversioner. For the consideration on which tiie writ is founded, is the percep- tion of the people by all the parties to the action ; and he in remainder or rever- sion is not entitled to the profit ; F. N. B. 295. Held, that under the st. of 1795, C. 74 s. 6, the remedy against a part owner of a mill, who refuses to repair, is by reimbursement out of the profits ; no action lies against his lieirs or assignees. But when all the proprietors contract to re- pair, then a remedy must be iiad on the contract, if it be broken, and not on the act. 20 a26 INCIDENTS OF EASEMENTS. Spurious easement to compel servient owner to repair. Lord Stair. ments, the owners whereof may legally enforce reparation ; yet it inferreth not this to be tlie nature of a servitude, but a positive statute or custom of ti»e burgh for the public good thereof, which is concerned in upholding tene- ments. But maitdy the reason of it is, because when diverse owners have parts of the same tenement, it cannot be said to be a perfect division, because the roof remaineth roof to both, and the ground sup[)orteth both ; and there- fore, by tlie nature of communion, there are mutual obligations upon both, viz. that the owner of the lower tenement must uphold his tenement as a foundation to the upper, and the owner of the upper tenement must uphold his tenement as a roof and cover to the lower, both which, though they have tlie resemblance of servitudes, and pass with the thing to singular successors, yet they are rather personal obligations, such as pass in communion even to the singular successors of either party" (a). A somewhat similar question arises in the case of a public highway or bridge, where a particular person is held liable to repair ratione tenures (6), or by prescription, contrary to the conimon law, by which the obligation is im- posed upon the parish or county (c). (a) Stair's Institutes, Book 2, tit. 7, § 6. (b) 2 Inst. 700 ; Com. Dig. Chimin, A. 4. (c) Regina v. Inhabitants of the County of Wilts, Salkeld, 359. In Converse v. Fcrre S^ al. 11 Mass. 325, where three part owners of a dam and stream agreed that each should do his proportion of the work and furnish also his proportion of the materials for repairing the dam, and if one failed in these re- spects, he should pay the deficiency in money : — two fulfilled ; and one expended beyond his proportion ; the question was whether the plaintiff could recover such excess of expenditures against the other two, one of whom had fulfilled. The two defendants were tenants in common of a saw and grist-mill ; but they held the same by separate titles, each one moiety : and the plaintiff owned a black- smith shop and trip hammer. All these moved by the same stream. Held, that plaintiff could not recover against the defendants jointly, because his only remedy was on the contract ; and by that there was no joint promise to this'feffect ; — there being no remedy at common law. In Carver v. Miller, supra, the tenant in dower died before the plaintiff had re- ceived his pay out of the profits of the mill according to the agreement, and he was held to be without remedy. But the Court observe, tliat if such deficient proprietor, being tenant in fee, shall after the repairs made aliene or die, before the charge* are reimbursed, it may deserve consideration, whether within the equity, although not within tlie words of the act, his assignees or heirs may not be holden to account. OBLIGATION TO REPAIR. 207 Liability of servient owner to repair by prescription or tenure. * " Et siciit poterit quis facere nociimentuin iiijuriosiim in facien- * 318 do, ita poterit in non faciendo, in propno vel in alicno, ut si ex constitiuione obstruere et claudere, purgare et r^ficere, et non fecerit cum ad hoc tene- atur" {ay if a man, who is bound by tenure to repair a certain causeway by prescrip- tion, does not repair it, per quod my land is surrounded, 1 may have an action on the case against him (6). As, however, the obligation thus imposed on the servient tenement is con- trary to the usual incidents of easements, it will, of course, require greater strictness of proof. Although, as it should appear by the Civil Law, with the single exception of the servitus oneris ferendi, no easement could exist which imposed on the owner of the servient tenement an obligation to repair, and any stipulation to tliat effect was personal, binding on the contracting parties only, and not im- fjosing any charge upon the inheritance, so as to pass with it into the hands of a new owner ; yet there is little doubt that, by the law of England, such an objection may be imposed either by express grant or prescription. Any stipulation by deed, affecting the quality or mode of enjoyment of land — as, for instance, a covenant to repair a house upon it (c), runs with the land; and this doctrine implies to implied as well as express covenants (rf) ; and as a prescriptive right to an easement * is equivalent to an ex- *319 press stipulation by deed, which the law allow to be made in favor of the successive owners of the neighboring tenement, it seems that the same con- sequences must follow from it. If a man make a bridge for the common good of all the subjects, he is not bound to repair it, for no particular man is bound to reparation of bridges by the Common Law, but ratione tenuree, or praescriptionis. As to the second, the remedy was, if it were a private bridge, as to a mill, which A. was bound to maintain, over which B. had a passage, &c., if the bridge were in decay, B. might have his writ de ponte reparando (e). « By the Common Law," says Lord Mansfield, " he that hath the use of a thing ought to repair it ;" but " the grantor may bind himself" (/> (a) Bracton, Lib. 4, f. 232; Com. Dig. Tit. Chimin, D. 6. {b) 29 Ed. 3. 32 b; and see 1 Wms. Saunders, 322. .e union of them ; 3. To the easement of necessity, the permission to do some act which of necessity destroys it;^ 4. And to the acquisition by prescription, abandonment by non user. CHAPTER I. BY EXPRESS RELEASE. It would appear, that, in the case of easements, as of other incorporeal rights, an express release, to be effectual, must be under seal (a) : this rule, however, must not be taken to exclude a written instrument not under seal, or even a parol declaration, as evidence to show the character of any act done, or any cessation of enjoyment. (a) Co. Litt. 264. b.; Com. Dig. Release (A. 1), (B. 1). 252 EXTINGUISHMENT OF EASEMENTS, Acts of Parliament. * 348 * Acts of .Parliament, by which easements are destroyed, as, for in- stance, the General Inclosure Act, 41 Geo. 3, c. 109, s. 8, have the operation of express releases (a). (a) Logan v. Burton, 5 B. & Cr. 513 : Harber v. Rand, 9 Price, 58 : White v. Reeves, 2 B. Moore, 23 : Thackrah v. Seymour, I Cr. & Mee. 18. CHAPTER II. BY IMPLIED RELEASE. Sect. 1. — Extinguishment by Merger. Extinguishment arid suspension. *As an easement is a charge imposed upon the servient, for the ad- ^ 349 Vantage of the dominant tenement, when these are united in the same owner the easement is extinguished — the special kind of property which the right to the easement conferred, so long as the tenements belonged to different owners, is now njerged iti the general rights of property. But in order that the easement should be e ntirely extinguished, it is essen- tial that the owner of the two tenements should have an estate in fee-si n|le in both of them, of an equally perdui-able nature. " Where the tenant," says Littleton, " hath as great and as high an estate in the tenements as the lord hath in the seigniory, in such case, if the lord grant such services to the tenant in fee, this shall enure by way of extinguishment. Causa patet" (a). U{)oa which Lord Coke observes (6), " Here Littleton intendeth not only as great and high an estate, but as perdurable also, as hath been said, for a disseisor or ten- ant in fee upon condition hath as high and great an estate, but not so perdur- able an estate as shall make an extinguishment." In a previous section, speak- ing of seigniories, rents, profits a prendre, &c., he says, " They are said to be extinguished when they are gone ever, et tunc moriuntur, and can never * be revived, that is, when one man hath as high and as perdurable an * 350 estate in the one as in the other" (c). (a) S. 561. (b) Co. Lit. 313. b. (t) Co. Litt. 313. a. 254 EXTINGUISHMENT OF EASEMENTS, Easements extinguished by unity do not revive on severance. She wry v. Pigott. Unless this be the case, the easement, of whatever species it be, is suspend- ed only so long as the unity of possession continues, and revives again upon the separation of the tenement. " Suspense cometh from suspendeo, and, in legal understanding, when a seigniory, profits a prendre, &c., by reason of the unity of possession of the seigniory, rent, &c,, and of the land out of which they issue, are not in esse for a time, et tunc dormiunt, but may be revived or awaked [a). So strictly has this doctrine been construed, which requires the estates in the two tenements to be of an equally high and perdurable character, that no extinguishment was held to have taken place where the king was seised of one tenement " of a pure fee-simple indeterminable," jWe corona, and of the other of an estate in fee-simple, determinable on the birth of a Duke of Cornwall. Rex V. Inhabitants of Hermitage. (6). This principle appears to be equally applicable to all easements. When two tenements become completely united, and, as it were fused into one, the owner may modify the previous relative position of the different parts at his pleasure ; if he exercises this right so that the part which previously served the other no longer does so — as, for instance, by changing the direction of a spout which emi)tied the rain water of the one on the adjoining tenement, it has never been doubted that by so doing he destroyed the easement for ever (c). * 351 * But it has been contended, that if he neglect to do so, and again sever the tenements, all easements having the qualities of being both con- tinuing and apparent, as well as all those which existed by necessity, were re- vived upon the severance. In the 11th Henry 7 (d), it was decided, " that a cus- tomary right in the City of London to have a gutter running in another mati's land was not extinguished by unity of possession." It was argued that if the purchaser of both tenements had destroyed the gutter, the right would not have revived ; to which Danvers, J., replied, " If the matter^ were so, it might have been pleaded specially : it would be a good issue." In Sheuny v. Pigott (e), in an action on the case for stopping a water- (a) Co. Litt. 313. a. (b) Carthew, 241. See also Canham v. Piske, 2 Cr. »fc J. 126; Thomas v. TJwm- as, 2 Cr. M. & R. 34. (c) 11 Henry 7, f. 25. Lady Brown's case, cited in Shcwry v. Pigott; Palftier, 446. d) Fol. 25. (e) 3 Bulstrode, 339} S, C. Palmer, 446. BY IMPLIED RELEASE. 255 Easements extinguished by unity do not revive on severance. course, which had been used to have its current into the plaintiff's yard, and fill a pond with water, it was held that a unity of possession of the land of the house and place to which, and of the land tluough which, &c., was no bar. " There is a difference," said fVhitelocke, J., " between a way or common and a water-course. These begin by [)rivate riglit, by prescription, by assent as a way or common, being a particular benefit to take part of the profits of the land — this is extinct by unity, because the greater benefit shall drown the less. A water- course doth begin ex jure naiurce, having taken this course naturally, and can- Dot be averted." In the report of this case in Latch, it is said, "Rent shall be extinguished by unity, and also a way, because it does not exist durant tlie unity ; but it is other- erwise of a thing which exists, notwithstanding the unity." A case of warren is cited from 35 Henry, f. 55, 56. * In Bitckley v. Coles (a), the Court of Common Pleas intimated a de- * 352 cided opinion, that unity of seisin was sufficient to work an extinguishment, wtihout actual unity of occupation. In Drake v. Wrigglcsworth [b), the Court doubt whether seisin implied possession ; but it should seem from a more re- cent case, that from seisin the law will presume possession (c). It will, however, be found that the classes of easements with respect to which this revivor is supposed to take place, exactly correspond with those already considered, as being acquired by the implied grant resulting either from the disposition of the owner of the two tenements, or from the easement being of necessity. It is practically immaterial whether the foundation of the right be a new grant, or a revival of the old right ; but the former appears to be the most cor- rect view of the title to them, and it is certainly more in harmony with the general principles of the law of easements [d). In the Civil Law, on the union of two inheritances in the same owner, all servitudes were extinguished by confusion ; and on any future serverance it was necessary to reimpose them expressly (e). (28) (a) 5 Taunt. 311. (h) Willes,658. (c) Stott V. Stott, 16 East, 343. (d) 2 Bing, 76 ; S. C. 9 Moore, 166; Holmes v. Goring, ante, p. 84. (e) Servitutes prBBdorium confunduntiir, si idem utriusque prsedii dominus esse coeperit. — L. 1. fF. Quem. serv. amit. Si quis aedes, quae suis sedibus servirent cum emisset traditas sibi accepit, con- fusa sublatapue servitus est, et si rursus vendere vult nominatim imponenda ser- vitus est, allioquin liberae veniunt. — L. 30, if. De serv. urb. proed. , Tortio amitltur Cservitus) confusioue cnm praedia confusa sunt, sive cum idem, utrius praedii dominus esse cojperit. — Viunius Coram, ad Inst. Lib. 5, tit. 3, Qui- bus modis serv. amittuntur, § 6. (28) It is laid down in Bullers N. P. (p. 74,) " that a right of water-course does 25fi EXTINGUISHMENT OF EASEMENTS, License to obstruct. Cessation of enjoyment. *353 *Sect. 2. — Extinguishment of J^ecessiiy. It has already been seen, on the clearest authority both of our own law and the Civil Law, that if the owner of the dominant tenement authorizes an act to be done on the servient tenement, the necessary consequence of which is to prevent his future enjoyment of the easement, it is ilierehy extinguished (a). And provided the authority is exercised, it is immaterial whether it was given by writing or by parol (6).. (a) ante, p. 20. Si stillicidii immittendi jus habeam in aream tuam, et permiserojus tibi in ea area sedificandi, stillicidii immittendi jus amitto; et similiter, si per tuum fundum via mihi debeatur, et permisero tibi in eo loco per quem via mihi debetur aliquid fa- cere, amitto jus vise. — L. 8. fF. quem. serv. amit. Amittitur servitus remisaione, turn apertatum tacita — puta, si permissero do- mino fundi servientis, in loco serviente, facere id quo servitus impediatur. — Vin- nius Comment, ad Inst. L. 2, tit. Quibus modis servitutes araittuntur, § 6. (b) Liggins v. Inge, ante, p, 34. not seem to be extinguished by unity of possession in any case." For this he cites the case of Surrey vs. Piggott, in Latch 153, and Popham 166. The case in substance was this : A was possessed of a rectory, of which a curtillege was par- cel. From time immemorial a watering-place for cattle, &c. existed in said cur- tillege, and a stream'had flowed from Milford stream through a piece of land called the hop-yard to fill the pond at the watering-place. A afterwards purchased the hop-yard, and thus became possessed of the rectory and hop-yard at the same time. He then sold the hop-yard to B, under whose title the defendants entered and ob- structed the water-course by erecting a stone dam across it within the limits of the hop-yard. The court were unanimously of opinion, that the right to the wa- ter-course was not extinguished by the unity of possession; and that the plaintiff was entitled to recover for the obstruction. The case is most fully reported in Pop- ham. Whitelock J- said, " that a way or common shall be extinguished, because they are a part of the profits of the land ; and the same law is of fishings also ; but in our case the water-course doth not begin by consent of parties, nor by percrip- lion but ex jure natures, and therefore shall not be extinguished by unity of pos- session. " He took the distinction, that where a thing hath its being by perscrip- tion unity will extinguish it; but where the thing hath its being ex jure naturcty it shall not be extinguished. Jones J. was of the same opinion for the same rea- son. Doddridcre J. went into a larger examination of the subject, and held, that the unity of possession did not extinguish the right to the water-course, for two reasons ; (1), for the necessity of the thing ; (2). for the nature of the thing, being BY DIPLIED RELEASE. 257 Cessation of enjoyment. Prescription act. Sect. 3. — Exlinguishmcnl by Cessation of Enjoyment. As the acquisition of an easement is an addition to the ordinary rights of property of the dominant, and a corresponding diminution of those rights of the servient tenement, so the loss of the easement, when once acquired, by restoring both tenements to their natural state, is an addition to the rights of the servient, and a corresponding diminution of those of the dominant. Hence, though the law regards with less favor the acquisition and preserva- tion of these accessorial rights, than of those which are naturally incident to property ; and, * therefore, does not require the same amount of proof *354 of the extinction as of the original establishment of the right : yet as an ease- ment, when once created, is perpetual in its nature, being attached to the inher- itance, and passing with it, it should seem that some acquiescence on the part of the owner of the inheritance must be necessary to give validity to any act of abandonment. The doctrine of the extinction of easements by merger, al- ready considered, supports this view, proceeding, as it does, on the ground that the loss of an easement is a permanent injury to the inheritance, and can therefore only take place when the same party is the owner of the fee-simple of the servient and dominant tenements. a water-course, which is a thing running. He put the case, " A man owned a mill, and afterwards purchases the land upon which the stream goes, which runs to the mill, and afterwards aliens the mill, the water-course remains." Crew C. J. concurred in the opinion. The same case is reported in Noy 84, Palmer 444, William Jones 145, and 3 Bulst. 339, but without any essential difference. Upon this case it does not appear to me, that there is any difficulty in admitting its en- tire correctness. It proceeds upon this plain principle, that a privilege, which was annexed to, and in actual use with the rectory during the unity of posses- sion, and was not parcel of the other land or a profit a prendre out of that land, was to he considered as still existing as an appurtenance or privilege annexed to the rectory, notwithstanding the unity of possession. The running water over the hop-yard, was not parcel of the hop-yard, or an easement growing out of it. But if, during the unity of possession, the privilege had been disannexed by the owner, as if the owner had during that period stopped the water-course and thus destroyed the privilege, the case would have been otherwise. A subsequent grant of the rectory would then have conveyed only the privilege actually in existence and use at the time of the conveyance. This doctrine was admitted by the court in Surrey vs. Pigot, to be correct, and was adjudged in a case in 11 Hen. 7, 25, b, which was on that occasion cited and approved. The case 11 Hen. 7, 25, was as follows : A was the owner of a tenement, to which there was an ancient gutter 33 258 EXTmGUISHMENT OF EASEMENTS, Cessation of enjoyment. Prescription act. The Prescription Act is silent as to the mode by which easements may be lost. Its enactments as to interruption and disabilities apply in terms only to the acquisition. It is the policy of the law, favoring the freedom of property, that no restric- tion should be imposed upon one tenement, without a corresponding benefit arising from it to another, and hence it is that it is essential to the validity of an easement that it should conduce to the more beneficial enjoyment of the dominant tenement. If, therefore, any alteration be made in the disposition of the dominant ten- ement, of such a nature as to make it incapable any longer of the perception of the particular easement, the status of the dominant tenement, to which the easement was attached, and which is an inherent condition of its existence, is- determined. Such alteration must, of course, be of a permanent character, evincing ao * 355 intention of ceasing to take the * particular benefit, or otherwise an running through an adjoining tenement, and afterwards he bought the adjoining tenement ; and then sold the first tenement to the plaintiff. It was held, that the ancient gutter was not extinguished by the unity of possession ; but that it would have been otherwise, if A during the unity of possession had destroyed the gutter, or cut it off. The reason is, that it was a necessary and subsisting easement. " If, therefore, in the case at bar, the dam of the lower mill had never been lower- ed, the right to use a dam of that height, notwithstanding the unity of possession, would have passed to the subsequent grantee of the lower mill, as a subsisting privilege or appurtenance upon the doctrine asserted, and correctly asserted, by Doddridge J. But the dam during the unity of possession and long before had been lowered two feet, and so far as it was an adverse right, had been extinguish- ed in point of use before the unity of possession, and not being severed during that unity, it was extinguished for ever. It did not pass by the grant to Congdon, for nothinc passes by a grant of a mill and the privileges and appurtenances there- of but privileges and appurtenances existing at the time of the grant." By Story J. in Hazard v Robinson, infra. The case of Hazard v Robinson, 3 Mason, 272 decides, that where one owns an upper mill and another a lower mill on the same stream ; and the latter lowers his dam and lets it remain so more than 20 years, and then conveys to the owner of the upper mill, who then sells the lower mill to a third person. Held, that the third person had no right to raise the water higher ; the unity of possession did not affect the right acquired by the 20 years occupation. The court say — That by the unity of possession, any adverse right of obstruction of the water of the upper mill in posse, and not in esse, was extinguished ; and the grant of the lower mill only conveyed such privileges and appurtenances as to the dam and water, as were at that time used and appropriated to it. BY IMPLIED RELEASE. 259 Cessation of enjoyment. Moore v. Rawson. easement might be lost by tlie mere pu ling down of the tenement for the pur- poses of necessiry rep.iir (a). Tims, if a m;in have a projecting roof, by means of which he enjoyed the easement of throwing his eaves-droppings on his neighbor's land, any alteration of the form of such projection, from which it could be inferred that he meant to direct the rain water into a different channel, would destroy his right to the easement. Thus, too, the stopping up an ancient window (t). By the Civil L:iw the pulling down a house with the intention of re-building did not cause the loss of a servitude, provided the new edifice was erected upon the site and of the dimensions of the old, and did not increase the bur- then im|)osed upon the servient tenement (c). In Moore v. Rawson {d), it api)eared that the plaintiff, having some ancient windows, pulled down the wall in which they were situated, and rebuilt it as the wall of a stable, without any window. About fourteen years after this, the defendant erected a building in front of this blank wall, and after such building had remained there about three years, the plaintiff re-opened a win- dow in the same place that one of the ancient windows had formerly stood and brought this action for the obstruction to his newly-opened window by the defendant's building. A rule having been obtained to enter a nonsuit, pursuant to liberty reserved at the trial, the Court of K. B. made the rule absolute. * Ahholt, C. J., in delivering his judgment, said, "I am of opinion *356 that the plaintiff is not entitled to maintain this action. It appears that many years ago the former owner of these premises had the enjoj'ment of light and air by means of certain windows in a wall in his house. Upon the site of this wall he built a blank wall without any windows. Things continued in this state for seventeen years. The defendant, in the interim, erected a build- ing opposite the plaintiff's blank wall, and then the plaintiff opened a window in that which had continued for so long a period a blank wall without win- dows ; and he now complains that that window is darkened by the buildings which the defendant so erected. It seems to me, that, if a person entitled to ancient lights pulls down his house and erects a blank wall in the place of a wall in which there had been windows, and suffers that blank wall to remain (a) Luttrell's case, 4 Rep. 86. (b) Laurence v. Obee, 3 Camp. 514. (c) (Si servitus stillicidii non avertendi debebatur) : si antea ex tegula cassita- verit stillicidium, postoa ex tabulato, vel ex alia materia, cassitare non potest. — L. 20. § 4. ff. deserv. praed. urb. (rf) 3 B. & Cr. 332 ; Dowl. &R. 234. 260 EXTINGUISHMENT OF EASEMENTS, Cessation of enjoyment. Moore v. Rawson. for a considerable period of time, it lies upon him at least to show, that, at the time when he so erected the blank wall, and thus apparently abandoned the windows which gave light and air to the house, that was not a perpetual, but a temporary abandonment of the enjoyment; and that he intended to re- sume the enjoyment of those advantages within a reasonable period of time. I think that the burthen of showing that lies on the party who has discontin- ued the use of the light. By building the blank wall, he may have induced another person to become the purchaser of the adjoining ground for build- iug purposes, and it would be most unjust that he should afterwards prevent such a person from carrying those purposes into efiect. For these reasons I am of opinion, that the rule for a nonsuit must be made absolute." * 357 Bayley, J., said, " The right to light, air, or water, is * acquired by enjoyment, and will, as it seems to me, continue so long as the party either continues that enjoyment, or shows an intention to continue it. In this case the former owner of the plaintiff's premises had acquired a right to the enjoy- ment of the light ; but he chose to relinquish that enjoyment, and to erect a blank wall instead of one in which there were formerly windows. At that time he ceased to enjoy the light in the mode in which he had used to do, and his right ceased with it. Suppose that, instead of doing that, he had pul- led down the house and buildings, and converted the land into a garden, and continued so to use it for a period of seventeen years, and another person had been induced by such conduct to buy the adjoining ground for the pur- poses of building. It would be most unjust to allow the person who had so converted his land into garden ground, to prevent the oilier from building up- on the adjoining land which he had, under such circumstances, been induced to purchase for that purpose. I think that, according to the doctrine of mod- ern times, we must consider the enjoyment as giving the right ; and that it is a wholesome and wise qualification of that rule to say, that the ceasing to en- joy destroys tlie right, unless at the time when the party discontinues the en- joyment he does some act to show that he means to resume it within a reason- able time." Holroyd, J., added, " I am of the same opinion. It appears that the former owner of the plaintiff's premises at one time was entitled to the house with the windows, so that the light coming to those windows over the adjoining land could not be obstructed by the owner of that land. I think, however, that the right acquired by the enjoyment of the light continued no longer * 358 * than the existence of the thing itself in respect of which the party had the right of enjoyment ; I mean the house with the windows : when the house and the windows were destroyed by his own act, the right which he had in respect of them was also extinguished. If indeed, at the time when he pulled the house down, he had intimated his intention of re-building it, the right would not then have been destroyed with the house. If he had done fiome act to show that he intended to build another in its place, then the new BY mPLIED RELEASE. 261 Cessation of enjoyment. Moore v. Rawson. house, when buHt, would in effect have been a continuation of the okl house, and the riglits attaclicd to tiic okl liouse wouhl liave continued. If a man has a light of coiniuon attached to his mill, or a right of turbary attached to his house, if he pulls down tbe mill or the house, the right of common or of turbary will /wi'ma/acie cease. If he show an intention to build another mill or another house, his right continues. But if be y)ulls down the liouse or the mill without showing any intention to make a similar use of the land, and, af- ter a long period of time has elapsed, builds a liouse or mill corresponding to that which he pulls down, that is not the renovation of the old house or mill but the creation of a new thing, and the rights which he had in respect of the old liouse or mill do not, in my opinion, attach to the new one. In this case, I think, the building of a blank wall is a stronger circumstance to show that he had no intention to continue the enjoyment of his light than if he had merely pulled down the house. In that case he might have intended to sub- stitute something in its place. Here lie does, in fact, substitute quite a differ- ent thing — a wall without windows. There is not only notliing to show that he meant to renovate the * house so as to make it a continuance of *359 the old house, but he actually builds a new house different from the old one, thereby showing that he did not mean to renovate the old house. It seems to me, therefore, that the right is not renewed as it would have been, if when he had pulled down the old house, he had shown an intention to re-huild it with- in a reasonable time, although he did not do so eo instanti." Littledale, J. — " According to the present rule of law a man may acquire a right of way, or a right of common, (except, indeed, common appendant), up- on the land of another, by enjoyment. After twenty years' adverse enjoyment the law presumes a grant made before the user commenced, by some person who had power to grant. But if the party who has acquired the right by grant ceases for a long jieriod of time to make use of the ])rivilege so granted to him, it may then be presumed that he has released the right. I think, that if a party does any act to show that he abandons his right to the benefit of that light and air which he once had, he may lose his right in a much less pe* riod than twenty years. If a man pulls down a house and does not make any use of the land for two or three years, or converts it into tillage, I think he may be taken to have abandoned all intention of rebuilding the house ; and, con- sequently, that his right to the light has ceased. But if he builds upon the same site, and places windows in the same spot, or does any thing to show that he did not mean to convert the land to a different purpose, then his right would not cease. In this case, I think the owner of the plaintiff's prem- ises abandoned his right to the ancient lights, by erecting the blank wall in- stead of that in * which the ancient windows were ; for he then indi- * 360 cated an intention never to resume that enjoyment of the light which he once had. Under those circumstances, I think that the temporary disuse was a complete abandonment of the right." 262 EXTINGUISHMENT OF EASEMENTS, Cessasion of enjoyment. Lijgins v. Irige. « Suppose a person," said Tindal, C. J., in delivering the judgment of the Court in Liggins v. Lige (a), " who formerly had a mill upon a stream, should pull it down, and remove the works, with the intention never to return, could it be held that the owner of other land adjoining the stream might not erect a mill and employ the water so relinquished ; or that he should be compellable to pull down his mill, if the former mill-owner should afterwards change his determination, and wish to rebuild his own. In such a case it would, undoubt- edly, be a subject of inquiry by a jury, whether he had completely abandoned the use of the stream, or left it for a temporary purpose only.*' It appears from these cases, that the law has fixed no precise time during which this cessation of enjoyment must continue; — the material inquiry in every case of this kind must be, whether there was the intention to renoimce the right. Every such alteration of the dominant tenement raises the legal presumption of an intention to give up the right; and it lies upon the party who has discontinued the enjoyment to show that such cessation was of a temporary nature only. And, from the language of the judges, it does not appear to be necessary that the servient owner should have done any act after the change had taken i)lace in tiie dominant tenement to assert the freedom of his tenement from the easement; but it is sufficient if the consequence of * 361 * the change be an entire cessation of enjoyment, accompanied by an intention to relinquish the right, though, in point of fact, in the case above cited the owner of the servient tenement had, during the cessation of enjoy- ment, done an act which he could not lawfully have done had the easement ex- isted, and the owner of the dominant tenement had taken no steps to re- move the obstruction ; yet no stress was placed upon these circumstances. In Lawrence v. Obee, Lord Ellenhorough held, that where an ancient window had been filled up with brick and mortar for twenty years the case stood as if it had never existed [h). By the Civil Law an urban servitude could not be lost by mere abandon- ment on the part of the owner of the dominant, unless, during the cessation of enjoyment, some act was done by the owner of the servient tenement evin- cing an intention of defeating the servitude— as if a man having a window should have stopped it up during a certain time, a previously-acquired easement of the passage of light would not have been lost, unless the owner of the servient tenement had done something during the interval to obstruct the passage of light : so, too, in the case of an easement tigni immittendi mere removal of the beam was sufficient to defeat the right, unless the owner (a) 7 Bing, 693. {b) 3 Camp. 514. BY IMPUED RELEASE. 263 Cessation of enjoyment. Alteration by encroachment. of the servient tenement stopped up the hole in which the beam was placed (a); and, on the same ground, by no lapse of * time would the * 362 rignt be lost during which, owing to the delay in re-building the servient ten- ement, the easement could not be exercised (b). Altiiough, however, there ai)pear3 to be no authority in our law for requir- ing any such act as the condition of tiie extinction of an easement ; yet such an act, unopposed by the owner of the dominant tenement, as in the case of Moore v. Rawson, would be almost conclusive- evidence that there was no in- tention to preserve the easement. (29) (a) Htec autem jure similiter, ut rusticorum quo que pro2diorum, certo tempore non utendo pereunt ; nisi quod htcc dissimilitudo est, quod non omnimodo pereunt non utendo ; sed ita si vicinus simul libertatem usucapiat, veluti si tedes tuse aodi- bus meis serviant ' ne altius tollantur,' 'ne luminibus mearum sedium officiatur ; et ego per statutum tempus fenestras meas prsefixas habuero vel obstruxero ; ita de- mum jus meura amitto, si tu per hoc tempus aedes tuas altius sublatas habueris ; al- ioquin si nihil novi feceris, retineo servitutem. Item si ' tigni immissi' sedes tuffi servituten debent, et ego exemero tignum, ita demam amitto jus meum, si tu for- ma unde exemptam est tignum obturaveris et per constitutum tempus ita habueris ; alioquin si nihil novi feceris, integrum jus meum permanet. — L. 6. if. De serv. prsed. urb. (b) Si cum jus haderes immittendi vicinus statuto tempore sedificatum non habu- erit, ideoque nee tu immittere poteris, non ideo magis servitutem amittes ; quia non potest videri usucepisse vicinus tuus libertatem aedium suarum qui jus tuum noninterpellavit. — L. 18. § 2. fF. quem. serv. amit. (29) Easement by abandonment. A person may lose a right to ancient lights by abandonment of them, within a less period than 20 years ; as where he relin- quishes the enjoyment of them, as by building a blank wall to his house, or any other act which is absolute and decisive. Manning v. Smith, 6 Conn. 239. See also Pritckard v. Jltkinson, 4 N. H. R. 1. A right of way acquired by uninterrupted possession and use for 20 years, may in like manner be lost by disuser ; in other words, the discontinuance of the use for a long period affords a presumption of the extinguishment of the right. 3 Masons, 272. The case of IVhite v. Crawford, 10 Mass. 189 decides that a right of way proved by a grant or prescirption is not lost by non-user for 20 years. Sewrll. J. says — *' even a right of way, depending upon evidence from presciptive use, is not lost by non-user or by tortious interruption or negleit ; Com. Dig. Prescription, E. 2." In Curtis v. Jackson, 13 Mass. 507. which was case for obstructing and diverting water from the plaintiffs mill. The defendant erected an obstruction or weir in the stream above the plaintiff's mill ; and he attempted to justify it by parol proof of a grant of the right to divert the water, which evidence being rejected he then claimed that a grant was to be presumed from the evidence of a claim and user for 264 EXTINGUISHMENT OF EASEMENTS, Alteration by encroachment. A question of much greater difficulty arises in those cases in which there has been no actual cessation of enjoyment, but the mode of enjoyment has been more or less altered ; and where, instead of an intention to relinquish the right, an attempt has been made to usurp a greater riglit than the party was entitled to. Assuming, then, that the encroachment confers no new right, two questions arise : — 1st, whether a valid easement still subsists to the extent previously en- joyed ; and, 2ndly, if this be determined in the negative, whether the party is still at liberty to restore his tenement to its former condition, and recur to his former mode of enjoyment. *363 The 1st question may be considered with reference to* two dis- tinct classes of easements: — those which depend upon repeated acts of man, and require no permenant alteration in the dominant tenement, as rights of way, or to draw water ; and those which require for their enjoyment a per- manent adaptation of the state of the dominant tenement. more than 20 years. But the court observed that, if such claim and user for 20 years; previous to 1790 be sufficient to support the presumption of a grant, it may be doubted, whether the non-claim and non-user since that time be not sufficient to re- but such a presumption. But at any rate, the exclusive use of the water, cannot justify a permanent obstruction in the stream, which may be injurious to the plain- tiffs beyond the extent of the ancient usage and claim. 1. (Extinguishment of way.) The enroachment, by one party, upon a way held in common, by building part of the wall of a house upon a portion of it and enclos- ing another portion within fence, work an extinguishment by operation of law ; especially where the other party sells his interest after such acts done, and the purchaser on his part acquiesces in and confirms what has been done. Corning v. Gould. 16 Wendell, 531. 2. (Relinquishment of easement.) Where a party relinquishes the enjoyment of an easement or servitude, it lays with him to show an intention to resume the use of it within a reasonable time ; and where there are no circumstances intimating the suspension to be temporary only, a bona fide purchaser will be protected in the enjoyment of the property as it appeared at the time of his purchase, lb. Every privilege in derogation of the rights of the owner of land is viewed with jealously by the law, and is confined to the limits and objects prescribed by the grant. Taylor v. Hampton, 4 M' Cord, 96. Thus, when a person claims the right of keeping up a pond of water, which overflows the land of another ; the pond must be kept within its prescribed limits, that is, the height to which it was kept at the time of the purchase, and the use must be limited to the specific object to which it was then applied. lb. By the extinguishment of a servitude, is meant its annihilation, and not its suspension only. lb. BY niPLIED RELEASE. 2G5 Alteration by encroachment. Cherrington v. Abney. Cottt-rll v. Griffiths. In the former case, the previously existing right will not be afPicted by acta of usurpation, the c.\tent of which may, in such cases, easily be ascertained: thus, if a party having a right oi' footway were to use it, not only as such, but also as a horse or carriage way, thougli he might thereby become liable to an action for such trespass, he might nevertheless sustain an action for any dis- turbance of his foot wav. The right thus sought to be usurped would, in the mode of its enjoyment, be altogether distinct from the previous easement. With respect to those easements which rcquu-e for their enjoyment a per- manent adaptation of the state of the dominant tenement, it is extremely diffi- cult to reconcile the decisions, or to extract any clear or intelligible principle from them; but it jijipcars to be admitted, that, if the allcratioa in the mode of enjoyment is such as clearly not to render the easement more onerous on the owner of the servient tenement, the right remains unimpaired. In Cherrington v. Abmy (a), bill was fijed for an injunction to prevent stop- page of lights; tiiere being six lights in an old house, it was insisted, that, "in the new, they should have but the same number of lights, and ofthe same di- mensions, and in the same places, or else may stop up and blind them *." "So, must not make more stories, more lights, nor in other places. * .364 " It is certain they cannot alter the same to the prejudice ofthe owner of tlie .soil — as if before so high as they could not look out of them into the yard shall not make them lower, and the like ; for privacy is valuable. "One trial had another granted." In Cotteril v. GriJJilfis {b), it appeared that the plaintiff's windows had nev- er been completely opened until a short time before the action was brought, biit there had been blinds sloping upwards without giving any view over the defendant's premises. Lord Kenyan ruled, that, the defendant having by 9 {a) 2 Vernon, 046, cor. King, L. C. {b) 4 Esp. 60. A right to overflow the land of another is an incorporal hereditament, and if extinguished for a moment, cannot be revived. lb. Servitudes may be extinguished, either by the act of God, operation of law, or the act of the party. If the act which prevents the servitude is the act of the party, it will effect an extinguishment ofthe right. But if it is prevented by the act of God, or by the operation of law, this will only cause a suspension of it; for the act of a party will be construed most strongly against himself, but he shall not be injured by an act of God, or the law. lb. A servitude is extinguished by an obstruction of a permanent nature by the party himself to whom the service is due, or by his consent, or by the voluntary acquisition or acceptance of any other right or privilege incompatible with the exercise of it. lb. 34 266 EXTINGUISHMENT OF EASEMENTS, Alteration by encroachment. Martin v. Goble. Chandler v. Thompson. his act made the plaintiff's windows darker than they were when the blinds were up, the action was sustainable. In Martin v. Goble (n), where a building having been used for upwards of twenty years as a malthouse was converted into a dwelling-house, M'Donaldf C. B., held, that "the house was entiled to the degree of light necessary for a malthouse, and not for a dwelling-house: the converting it from one to the other could not affect the rights of the owners of the adjoining ground : no man could, by any act of his, suddenly impose a new restriction upon his neighbor." In Clwmdkr v. Thompson [h\\i appeared "that there had been for many years a small window in the place in question. About three years before the action was brought, the plaintiff considerably enlarged it, both in height and width, and put in a sash frame instead of a leaded casement. The defendant, who was the owner of the adjoining ground, then covered several inches of *365 the space occupied by the old window, but still admitted* more light to pass through the new window than the plaintiff had enjoyed before the alteration." Le Bianc, J., ruled, " that the whole space occupied by the old window was privileged, and that it was actionable to prevent the light and air passing through as it had formerly done. That part of the new window which constituted the enlargement might be lawfully obstructed ; but the plaintiff was entitled to the free admission of light and air through the re- mainder of the window^, without reference to what he might derive from other sources." In Garritt v. Sharp (c), it appeared that, for upwards of twenty years, the buildng in question had been a barn, on the side of which, abutting on the plaintiff's premises, were several apertures, about one or two inches wide, through which light and air passed to the barn, the only other opening being the barn door: the plaintiff's case was, that these openings were made for the purpose of admitting light and air ; the defendant contended, that they had been caused by decay and wear, by the boards shrinking. In 1833, the plain- tiff turned the barn into a malthouse, stopped some of the crevices, and con- verted others, by cutting, into windows, to which he put lattices. The defend- ant then erected a wall which prevented the access, not only of any additional light which might have been obtained by the alteration, but also, as the plain- tiff alleged, of that quantity which came into the building in its original state. The defendant (as was stated on the motion for a new trial) offered evidence to show, that the aUeration in the mode of admitting light to the plaintiff's (a) 1 Camp. 322. (h) 3 Camp. 80. (c) 3 Adol. 4^ Ellis, 325. BY LVIPLIED RELEASE. 267 Alteration by encroachment. Garritt v. Sharp. Bridges v. Blanchard. building was injurious to the defendant's adjoining * property ; * 366 such evidence, however, was not received. Tindal, C. J., left it to the jury to say, whether the apertures were originally placed there on purpose to admit light, and whether the defendant had obstructed any portion of the light (a) admitted ; and, in case of their finding in the affirmative on these questions* he directed them, if the light now fell short of the quantity before enjoyed by the plaintiff for the use of his barn, to give damages for such diminution^ The jm-y found for the plaintff. A new trial was moved for — first, on the ground of misdirection ; on which it was contended, that "the proof given respecting the apertures in the barn did not entitle the plaintiflT to any enjoy- ment of windows which admitted light more extensively, and in an entirely different manner ; and that no license for such an enjoyment could be presumed from the license, if proved, to have crevices in the wall of the barn :" the re- jection of evidence above mentioned was also relied on as a ground for a new trial. Tlie court granted a new trial, principally, as it should seem, on the ground, that, although "although the point was made, yet the jury were not required by the judge to consider whether the plaintiff had essentially varied the manner in which the light was enjoyed." In the concluding part of the judgment is the following passage : — " It is enough to sayj that a party may so alter the mode in which he has been permitted to enjoy this kind of easement as to lose the right altogether ; and, in this case, some part, even of the plain- tiff's proofs, made it proper that the opinion of the jury should be taken upon that subject." * In Bridges v. Blanchard (b), the alteration of the windows, upon * 367 which the question arose, was assumed by the Court in their judgment to con- sist of "a carrying out of the walls (in which the windows were J, five feet, in the same direction ; " and it should seem an alteration of their shape into bay- Window.s, — the original wall having been destroyed. Patteson, J., in delivering the judgment of the Court, said, "As to the win- dows at the east, the case finds that they do not occupy the places of the old windows ; the wall, in which those windows were, no longer exists : and, as- suming that no greater change of position has been made than is necessarily consequent upon a carrying out of the side walls five feet, and converting the termination into a bow, such a change is, in our opinion, sufficient to prevent their being clothed with the same rights as the former windows. In whatever way precisely the right to enjoy the unobstructed access of light and air from adjoning land may be acquired, (a question of admitted nicety), stiJl the act of (a) The word " originally" seems to have been omitted here ; there was no ques- tion that some light had been obstructed. , rb) 4 Ad. & Ellis, 176, 5 Nev. & Man. 567. 268 EXTINGUISHMENT OF EASEMENTS, Alteration by encroachment Bridges v. Blanchard. Luttrell's case. the owner of such land, from which the right flows, must have reference to the state of things at the time when it is snf)posed to liavc taken place ; and, as the act of tiie one is inferred from tlie enjoyment of the other owner, it must, in reason, be measured by that enjoyment. The consent, tlicrefore, cannot fairly be extended beyond the access of light and air through tlie same aper- ture (or one of the same dimensions and in the same position), whicli existed at the time when such consent is supposed to have been given. It ajjpears to * 3G8 us that convenience and justice both require * this limitation ; if it were once admitted that a new window, varying in size, elevation, or position, might be substituted for an old one, without the consent of the owner of the adjoining land, it would be necessary to submit to juries questions of degree, often of a very uncertain nature, and upon very unsatisfactory evidence. And, in the same case, a party, who had acquiesced in the existence of a window of a given size, elevation, or position, because it was felt to be no annoyance to him, might be thereby concluded as to some other window, to which he might have the greatest objection, and to which he would never have assented, if it had come in question in the first instance. The case of Chandler v. Thomp- son [a] is not at all inconsistent with this reasoning. There, an ancient win- dow had been enlarged; the original aperture remained : and the case only decided that that aperture remained priviledged as before the enlargement. We do not forget that the windows in the present case, whatever their privilege may be, do not claim it as ancient windows in the ordinary way from an acqui- escence of twenty years ; but this circumstance furnislies no ground for any distinction as to the point now under consideration." The Court also decided that the plaintiff had acquired no easement even for the original windows. Similar questions have arisen in the cases of other easements. Jji LulrelVs case (6), an action was brought for the diversion of water. The declaration sta- ted, that, the plaintiff, on the 4ih of March, in the 40th year of Elizabeth, * 369 was seised in fee of two old and * ruinous fulling-mills, and that from time whereof, &c., magna pars aquJB cujusdam rivuli ran from a place called Hod Weir to the said mills; and that for all the said time there had been a bank to keep the water within the current ; and that afterwards the plaintiff, on the 8th October, 41 Eliz, pulled down the said fulling^-mills, and in June, 42 Eliz., in place of the said fulling-mills erected two mills to grind corn, and the said water ran to the said mills until the 10th September next following ; and the same day the defendants foderunt et fregerunt the bank and diverted the water from his mills, &c. (a) 3 Campb. 80. (fc) 4 Rep. 87. a. BY IMPLIED RELEASE. 2G9 Alteration by encroachment. Luttrell's case. " The defenflants pleaded not guilty, and it was found against them, on which tlie plaintiff liad judgment; upon which the defendant brouglit a writ of error in the Exchequer Chamber, on whicli two errors were assigned. The princi|)al of these was, that by the breaking and abating of tiie old ful- ling-mills, and by the building of new mills of apothcr nature, the i)laintiff had destroyed the prescription and could not prescribe to liave any water- course to grist-mills : ' As if a man grants me a water-course to my fulling- mills, I can't, as it was said, convert them to corn-mills, nee e contra.' " One of the cases cited in argument was from 10 Hen. 7. 13 a, b, and 16 Hen. 7. 9 a, b, " where the abbot of Newark granted by fine to find three chaplains in such a chapel of the conusee, afterwards the saidc hapel fell, and there tene- tur — (during the time there is no chapel), the divine service shall cease, for it ought to be done in a deccent an Co. Litt. 114.b. fd) 2 B. & & Aid. 791. BY IMPLIED RELEASE. 275 Cessation to-enjoy discontinuous easements. Moore v. Rawson. A. to Ills house or close over tlie land of B., wliich is a prejudice to the land, may most reasonably be accounted for by su|i|»osing a grant of sucli right by the owner of sucli hiiid ; and il" suc.li right appear to have existed in ancient times, a long forbcaranee to exercise it, vvliich must be inconvenient and pre- judicial to the owner of the house or close, may most reasonably be accounted for by supposing a release of the right. In the first cli.ss of cases, therefore, a grant of the right, — in the latter, a release of it, is presumed." Mr. J. Lililedalc, in the case of Moore v. Rawson (a), though he did not cito the above authority, expressed an opinion in accordance with it, that easements of this character could only be lost by a cessation of *enjoyment dur- *.'J7*J ing twenty years ; the learned Judge distinguished between these easements and a right to light and air, principally on tlie ground — that the former, as far as their acquisition by j)rescription was concerned, could only be acquired by enjoyment accompanied with the consent of the owner of the hand, while the enjoyment of the latter required no such consent, and could only be interfer- ed with by some obstruction. .^K "According to the present rule of law, a man may acquire a right of way or a right of common (except, indeed, common appendant) upon the land of another by enjoyment : after twenty years' adverse enjoyment, the law pre- sumes a grant made before the user commenced by some person who had power to grants but if the party who has acquired the right by grant, ceases for a long period of time to make use of the privilege granted to him, it may then be ^)resunjed lie has released the right. It is sai;um|)ti()n of a grant, there must be a similar non-user to raise a presumption of release ; and this reasoning, perha])s, may aj)ply to a right of connnon or of w.iy." (:J2) III Holmes V- Buckley (b), where there had been a grant of vi water-course through two jieices of land, with a covenant by tlie grantor to cleanse the same, the Court decreed the |)arty claiming the land under the grantor to cleanse the stream, although * the grantee had cleansed it at his owu * 380 expense during forty years. The precise period requisite to extinguish a right of way by mere non-user does not appear to have been determined by any express decision of the En- glish Courts ; but it is said to have been decided in an American case, "that a right of way is not lost by non-user for less than twenty years (c)." (a) 2 B. 4/- Cr. 339. (b) 1 E.v Cas. Abr. 27. (c) Emerson v. Wiley, 10 Pickering, R., 210. (33) Extinguishment of way. 21 years occupation of land, adverse to a right of way, bars the right. Ycakle v. Xacc, 2 Whar. R. 123. 276 EXTINGUISHMENT OF EASEMENTS, Must be an intention to relinquish rigiit. Non-user with disclaimer. The following cases elucidate the doctrine that a mere intermittance of the user, or a slight alteration in the mode of enjoyment, when unaccompanied by any intention to renounce the acquisition of a right, does not amount to an abandonment. In Pagne v. Shedden [a], issue was taken upon a plea of right of way; and it appeared, tliat, by agreement of tiie parties, the line and direction of the way used had been varied, and at certain periods wholly suspended. Patte- son, J., was of opinion, that the occasional substitution of another track might be considered as substantially the exercise of the old right and "evidence of the continued enjoyment of it," and that the suspension by agreement was not inconsistent with the right. In Hall V. Swijl [b) where it appeared that about forty years since a stream of water from natural causes ceased to flow in its accustomed course, and did not return to it until nineteen years before the action was brought, the Court held, that the right to the flow of water was not lost. " It is further objected," * 381 said * Tindal, C. J., " that the right claimed has been lost by de- suetude, the water having many years since discontinued to flow in its accus- tomed channel, and having only recommenced flowing nineteen years ago. That interruption, however, may have been occasioned by the excessive dryness of seasons, or from some other cause over which the plaintiflfhad no control. But it would be too much to hold that the right is, therefore, gone ; otherwise, I am at a loss to see why the intervention of a single dry season might not de- prive a party of a right of this description, however long the course of enjoy- ment might be." So, by the Civil Law, where a right of this kind was lost by the fountain drying up, it was held to revive as soon as the fountain burst forth again (c) Where, however, there has not been a mere cessation to enjoy, but it has been accompanied by indications of an intention to abandon the right, as by a disclaimer, there is authority for saying, that a shorter period will be sufficient (fl) 1 Moo. & Rob. 382. The defendant failed in establishing any right of way . (6) 6 Scott, 167. (c) Hi qui ex fundo Sutrino aquam ducere soliti sunt, adieruntme, proposuerunt- que— aquam qua per aliquot annos usi sunt, ex fonte qui est in agro Sutrino, duce- re non potuisse, quod fons exaruigset ; et postea ex eo fonte aquam fluere ccepisse, petieruntque (a) me — ut quod jus non negligentia aut culpa sua amiserunt, sed quia ducere non poterant, his restitueretur. Quorum mihi postulatio cum non in- iqua visa sit succurrendum his putavi. Itaque quod jus habueruut tunc cum pri- mura ea aqua pervenire ad eos non potuit, id eis restituere placet. — L. 35. fF. de. serv. pra;d. rust. BY IMPLIED RELEASE 277 Non-user with disclaimer. Norbury v. Meade. Harmer v. Rogjers. to extinguish the right. Such direct evidence of intention appear* to have been treated in the same manner as tlie similar indications afforded by a changH in the status of the dominant tenement. Such non-user, accompanied by confessions that tiie party had no right at all events be * strong *382 evidence, and in effect almost conclusive, that he never had any such right. In JK'orbury v. Meade and Others [a], the Lord Chancellor said, "In the case of a riglit of way over the lands of other persons, being an easement belong- ing to lands, if the owner chooses to say I Jiave no right of way over those lands, that is disclaiming that right of way ; and though the previous title might be shown, a subsequent release of the right might be presumed." In Maimer v. Rogers (6), where a public riglit of way was claimed in Scot- land, Lord Eldon said, "It was contended in argument, that, according to the law of Scotland, it was necessary to prove forty years' uninterrupted enjoy- ment down to the period of trial. But it is quite impossible to maintain a position of that kind ; for it would lead to this consequence, that if you were to establish an uninterrupted enjoyment, even for the period of sixty or sev- enty years, an occupier could at any time defeat that right by successive ob- structions, although these obstructions might be resisted by persons exercising the right of way, unless they thought proper to go into a court of justice. 1 apprehend that cannot be the case. It cannot be the case certainly by the law of England. If the right be once established by clear and distinct evidence of enjoyment, it can be defeated only by distinct evidence of interruptions ac- quiesced in." It is evident this language cannot be taken literally, that no amount of non- user would be sufficient to defeat a right of way once fully established. The obvious meaning of Lord Eldon was, that where acts of inter- * * 383 ruption are proved as evidence that the right has ceased, the material inquiry must be, whether such acts of interruption were known and acquiesced in. A most important question upon this point arises under the Prescription Act, "Whether in all cases where an easement is claimed by prescription, the user must possess all the qualities requisite to confer a title down to the very com- mencement of the suit ; and therefore, although the right may have clearly ex- isted at an earlier period, it is destroyed by a subsequent user not possessing those essential qualities." It has been already seen that, by the statute, the pe- riod of user to acquire an easement must be that immediately preceeding the (ffl) 3 Bligh, 241. (b) 3 Bligh, N. S. 447. 278 EXTINGUISHMENT OF EASEMENTS, Incidental efFect of Prescription act. Onley v. Gardiner. Richards v. Fry. commenceinent of an action ; and if tlie statute be held to be obligatory in ail cases upon parties to proceed under it, and to e.xclnde the common law evidence of prescription, many ancient riglits will be lost by modes wliicb at the com- mon law would have been insufficient to jtroduce tliat result, and which the legislature, in framing the statute, did not appear to conten)plate. As, for example, where within the period requisite to confer an easement there has been a unity of possession of the dominant and servient tenements by the statute, no right woidd be acquired ; and supposing tiie rigiit of way to be ancient, the incidental operation of the statute would be to destroy it, be- cause the party claiming would be unable to make out his title, wbeteas at common law no such consequence would have ensued (a). * 384 * So, of any other faihn-e of the requisite qualities of the ust. Another anomaly might also arise as to the mode of losing an easement, which would be different in the case of an easement claimed by express granl and by prescription. Thus, a right of way by express grant would not be de- termined by unity of possession, as it would be if claimed by prescription. This inconvenience may be obviated by considering this as an affirmative statute, which does not take away the common law [I); and tliat a party may, therefore, allege and prove a prescriptive title in the satne manner as if the statute had not passed — and there is authority for this view of the case. In the recent case of Onley v. Gardner (c). where the defendant failed in proving a sufficient title under the statute in consequence of a unity of possession, the Court, after argument, in which it was held, that such unity defeated the title under the statute, allowed the defendant to amend his plea by pleading a right of way by prescription generally; and in Richards v. Fry [d), where it was suggested in argument, that "If a party hud a right three years ago, which he released, and then an action was brought against him for a trespass commjtted before the release, if he pleads according to the letter of the statute, i. e. a user for thirty years before the commencement of the suit, he would be defeat- ed, although the act in question was perfectly justifiable at the lime." Patleson, J., observed, "He might not be able to avail himself of the statute, but he would have a defence at common law." *385 * So the Prescription Act enacts, that an, "interruption, which shall be acquiesced in for a year, afterihe party claiming such rightshall have had notice of the interruption, and of the authority under which the same ia made, shall prevent a right being acquired." (a) See Lawson v. Langley, 4 Ad. & Ellis. 890- (ft) Bacon, Abr. Stat. G. (e) 4 Mee. & W. 469. (d) 3 Nev. &. P. 496. BY DIPUED RELEASE. ^ 279 Incidental effect of Prescription act. The statute contains no similar provision, appljiiig in terms to the extinc- tion of an ease.'vent aheady ncquir<^d, whether hy express grantor by pres- crijJtion only ; but it would be a great anomaly if any less iiiterrui)tion could extinguish a right than that required to break the continuity of enjoyment ia acquiring one. Tliere is, however, no case in vvliich the construction of this act has come in question, wiiich decides— that, sujjpnsing the rijrlit to have been once established, any such interruption would be sufficient to de- feat it ; but it seems, that, l)y a probably unintentional consequence of the enact- ment, wherever an casement is claimed by prescription only, however long the perio? 308 DISTURBANCE OF EASEMENTS, Justification under easement. * Particular title must be ploaded. (d) Of the Pleadings where Tort is justified under an Easement. *419 *The pleadings hitlierto considered have been those used in actions on the case brought for the disturbance of an easement. The pleadings in actions in which the defendant justifies tl)e act complained of by virtue of an easement, present greater difficulties. T'he defendant suffers from the operation of tlie inveterate rule of jjleading, which'requkes greater certainty and precision in the plea than in tlie decla- ration (a). In a declaration for a disturbance to an easement, it has been already seen that a general allegation of title is sufficient (6). In a j)lea justifying by virfie of such a right, the title to the right must be set out formally. So long as the distinction existed between the mode of stating title in actions, against a vj^rong-doer and against the terre-tenant, this rule was consistent ; but it is somewhat difficult to say why, in an action against a terre-tenant seeking to impose a burthen upon him, a greater degree of laxity should have been ])er- mitted to the claimant, when alleging his right, than when defending himself under it. In either case, the title under which he claims is equally within his own knowledge. These actions are for the most part actions of trespass; though, in some in- stances, as that of legalized acts of nuisance, the proper form of action is an action on the case. It is clearly established, that in a plea justifying the act complained of under an easement, the particular title upon which the defendant relies, whether by *420 gi'ant *or prescription, or by user under the statute, must be set out. If the defendant justifies at common law, whether by grant expressed or implied, as by prescription or otherwise, he must show that the easement has been annexed to the fee in the dominant tenement; and if he cannot allege himself to be the owner of the fee, he must deduce the title to his own par- ticular estate (c). In justifying under a prescriptive right of way, it is necessary to set out the termini accurately (d), but it is not essential that all the intervening closes over (a) Grimstone v. Marlow, 4 T. R. 718 ; 1 Wms. Saund. 346, n. (b) Vide supra, p. 413. (c) See Com. Dig. Chemin, D. 2; Stephen on Pleading, 3rd ed. 305, Rule 5; 1 Wms. Saund. 346 a; Bird \. Dickenson, 2 Lutw. 1526; Per Coleridge, J., in Bailey v. Jippleyard, 8 Ad. 4^ Ellis, 167. (ital were darkened; and it a|)peared, that, in case of a fur- ther elevation by liini, tiie windows wouhi be so obsciu'ed as materially to affect the value of the pro|)erty. An action bad been brought by the relators. On a motion to dissolve the injunction, it was contended, that, to sustain an injiuiction, tliero ought to be an " irreparable injury for every useftd purpose," such as a total deprivation of light, and not n)erely an obstruction, for wliich the ])ariy must be left to his common law remedy only ; and the reasoning of Lord Hardwicke in The Fishmongers^ Company v. The East India Company {a) was relied on. For the relators it was urged, that no total interception of light was requisite, " if the effect is, that these ancient lights are darkened and obscured, and, if the building shall be carried higher, will be in a greater de- gree darkened and obscured, so much as materially to affect the value of the preujises." *"The foundation of the jurisdiction of this Court," said Lord Eldon, *430 " in interfering by injvmction, is that head of mischief alluded to by Lord Hard- wicke, that sort of material injury to the comfort of the existence of those who dwell in the neigiiboring house, requiring the application of a power to pre- vent, as well as remedy, an evil, for which damages, more or less, would be given in an action at law. The question is, whether the effect (of the build- ing) is such an obstruction as tlie party has no right to erect, and cannot erect without those mischievous consequences, which, upon equitable principles^ should be not only compensated by damages, but prevented by injunction. " Assuming, therefore, that, from circumstances of enjoyment, usage, or in- terest, some contract could be implied, that this defendant ehould not build upon the premises he occujiies to the east of the hospital, and that an action on the case could be maintained uj)on that ground, that would not induce this Court to interpose by injimction, unless the consequences of the act, which may be resisted as illegal, being a violation of the contract, either express or implied, ajii)eared to be such as should be not merely redressed, but prevent- ed, by ap|)licaiion of the peculiar means of this Court. "1 repeat the observation of Lord Hardwicke, that a diminution of the value of the premises is not a ground ; and there is as little doubt that this Court will not interpose upon every degree of darkening ancient lights and windows There are many obvious cases of new buildings darkening those opposite to. them, but not in such n degree that an injunction could be maintained, or an {a) 1 Dick. 163. 318 DISTURBANCE OF EASEMENTS, Remedy by Suit in Equity. Winstanley v. Lee. action on the case ; vvhicli, however, miglit bo maintained in many cases *43l which would not support an *iMJunction. These affidavits, therefore, stating only that the ancient liglits will be darkened, but not that they will be darkened in a sufficient degree for this pin-)»ose, will not do." His Lordship dissolved the injunction upon the durHiidaiit undertaking, in case a verdict should be against him in the action at law, to remove .such building "as should be proved to affect t!ie ancient liglits in a material and improjier degree/' In Winslanhy v. Lee («), the plaintiffs sought to prevent the defendant from re-building a Wash-house (originally of the height of about nine feet) to such an elevation as would obstruct the plaintiffs' ancient windows, and tliereby materially diminish th-^; value of their property. Sir Thomas Plumer, M. R., said, "The first question is, whether, supposing the plaintiffs to have established their legal right to remove this building, be- gun by the defendant, they have entitled themselves to the preventive inter- position of the Court.' The injmy of postponing a building, which the |>arty is entitled to erect, may not, in every instance, be equal to the injury of per- mitting him to proceed with one which is a nuisanco. Cases arise in which courts of equity, seeing that the injury might be irreparable, as where loss of health, loss of trade, destruction of the means of existence, might ens.ie from erecting a building, would exercise its jurisdiction of preventing injury, with- out waiting the slow process of establishing the legal right, when delay would itself be a wrong. On the other hand, it may be perfectly clear, tiiat the *432 plaintiff is entitled* to succeed in an action, and yet a court of equity will not interfere by injunction. The plain! iff is bound to show, not only a legal right to the enjoyment of the ancient lights [b), but that, if the building of the defendant is suffered to proceed, such an injury will ensue as warrants the Court to interpose, and at once take possession of the subject by injunc- tion." His Honor was of opinion, that the jjlaijitiffs were not entitled to an injunction, as both their right, and the actual amount of injury likely to be caused, were disputed by the defendant's affidavits : the expression, as to the injury which would result to the plaintiffs, was, " that the premises would be greatly i.MJured and deteriorated; and this allegation lie held not sufficiently precise to warrant the interference by injunction. In addition to this, the cus- tom of the City of London appeared to be a bar to the plaintiffs both at law and in equity. (a) 2 Swanst. 333. (*) WeUer v. Smeaton, 1 Co.-?, 102 REMEDIES FOR. Qfg Remedy by Suit in Equity. Back v. Stacey. Sutton v. Lord Montfort. In 13 ick V, Slacey (a), the bill, and affidavit in pupport of it, stated ilie de- fendant was about to re-bnild his house "in such a manner as to d .rken and obstruct certain ancient lights and windows in the phiintiff 's houses adjoin- ing ; iliat tlie eaves of the ancient roof of the ■lefendant's house were not nsore than seventeen feet from the ground ; tliat, according to the mode in which the defendant was re-building the premises, the roof would be eighteen feet higher than it was before; and that the effect of the alteration woidd be to darken entirely one of the plaintiff's ancient windows, which had formerly been ahog.ther unobstructed, and to injure materially his other ancient win- dows, as well as to impede tiie free aflmission of iiglit and air *into *4.*3;3 his premises. Tlie defendant had made considerable progress in tiie altera- tions complained of, and the timbers were fixed for erecting the new roof. Lord Eldon granted the injunction upon an ex parte application. In Sutton V. Lord Montfort [b], an injunction was granted to restrain the building of a wall, which would obstruct certain ancient windows: upon a motion to dissolve it. Sir L. Sliadwell, V. C, after referring to the case of The Attorney- General v. JVichol, and remarking, that the building would materially affect the comforts of the houses in which the windows were, said, "I have, therefore, a case before me in which, according to my opinion, upon the sim- ple question of nuisance, the building, if completed, would be a nuisance, and in which it is not by any means clear that the Dean and Chapter of Westmin- ster would have a right to erect the building prop'osed, and in which it appears that Lady Montfort may not have that right, even though the Dean and Chap- ter may have it. I think, therefore, the injunction should be continued, though the matter must be tried." The mere fact that a nuisance is of a public nature will not in equity more than at law prevent individuals from applying to the Court for protection, if they sustain special damage thereby. "It is going too far," said Lord Eldon, in Crowdcr v. Tinkler, " to say that if a plain nuisance is attended with partic- ular and special damage to an individual, producing irref)arable damage, that individual shall not be at liberty to *come here unless the Attorney- *434 General chooses to accompany him" (c). Thus, too, in the recent case of Spencer v. London and Birmingham Railway Company [d), it was held, that where individuals sustained injury from a pub- (a) 2 Russell, 121. (b) 4 Simons, 569. (c) 19 Ves 621 ; vide etiam Mayor of London v. Bolt, 5 Vesey, 129; Attorney' General v. Forbes, 2 My. & Cr. 123. (d) 8 Simons, 193 ; see, also, Sampson v. Smith, Ibid. 272. 820 DISTURBANCE OF EASEMENTS, Remedy by Suit in Equity. Blakemore v. Glamorganshire Canal Navigation. lie nuisance, quite distinct from that wliich was inflicted on it by the public, a bill might he filed by thosi; individuals to be relieved from the nuisance. A disiinctiun has been taken in some ca-ses between those injunciions whieh merely i)revent the doing of an act, and those the consequence af which, either directly or indirectly, will be to compel a party to do some act, as to fill up a ditch (a) or |)ull down a wall [b); the former being granted on motion, the latter on decree only. Tliis di.stinction, however, though recognized, does not ajipear to have been strictly attended to : indeed, in one case (c). Lord E'don, though he refused the order as prayed, "to restrain the defendant from continuing to keep cer- tain works out of repair," |)urposeiy made an order in such a form as to have the same effect, by making it difficult for the defendant ta avoid completely repairing his works. "I take leave," said Lord Brougham, \n commenting on this case, in his judgment in Blakemore v. Glamorganshire Canal JVavlgalion {d), " to agree with *4."35 Lord *Lyndhurst in tiie o|)inion, that, if this Court has this jurisdic- tion, it would be better to exerci.-e it directly and at once ; and I will turthcr take leave to add, that the having recourse to a round-about mode of obtain- ing the object seems to casta doubt on the jurisdiction." Tlie question of jurisdiction his Lordship does not expressly decide, " although," he co tinues, " we have no right to say there is not a precedent for taking a similar course here ; yet surely we may pause, and, without denying the jurisdiction, decline to exercise it" (41). {a) Robinson v. Lord Bijron, 1 Bro. C. C. 580. (b) Ryder v. Bentham, 1 Ves. Senr. 543 (c) Lane v. JVewdigate, 10 Ves. 192. (dj 1 My. & Kee. 184. (41) Injunction against tenant in common lohen his acts tend to the destruction of the joint jiroperty. — The late case of Kennedy v. Scovil, 12 Conn. R. 317, was one which related to the right to water and privileges affecting mills held in common. The important facts appear from the following judgment of the Court. Bis^ell, J. The questions of law growing out of the facts found by the court and reserved for our advice, arise principally upon the deed of the Sth of June, 1832, and the circumstances connected with that conveyance. That clause in the instrument, which is most intimately connected with the question now before us, and to which our attention has been particularly directed, is in these words : — "Always provided, and this deed is given on condition, that the grantors are to have and retain the privilege of conveying water from said dam, through a con- ductor, similar to the one now in use, till the same shall arrive at the East end of REMEDIES FOR. 3;il Remedy by Suit in Equity. ihe new shop aforesaid, and thence, either by a conductor, race or otherwise, to the old shop, East of the new shop, for the necessary accommodation and use of the old sliop." Upon this conveyance, and the facts found in the case, it is ob- jected, that the present bill cannot be sustained, for the following reasons. 1. " It is said, that under the above reservation in their deed, Brainard and Woodruff had no right to take water from the flume for the use of the lower mill. 2. " Admitting they had the right, yet it was personal to them, and not assign- able. 3. " Allowing them to have had an assignable interest, it is still insisted, that the plaintiffs are not entitled to an injunction, because they are tenants in com- mon with Scovil, one of the defendants, of tlie lower mill, and of the priviltgeln controversy. " These several objections will be considered in their order-. 1. " And in regard to the first, it may here be remarked, that the right of Brain- ard and Woodruff to one half of the dam and pond, is wholly independent of the reservation in their deed. They were owners of the whole ; and they never con- veyed but a moiety for the use of the upper mill. Of the other moiety they, of course, remained owners ; and had an undoubted right to one half of the water, to be taken, in some way, from the pond. The question, then, is narrowed down to this : whether, by reason of the reservation in their deed, or otherwise, they had a right to take the water through the flume .' Suppose there had been np reservation in their deed ; how then would have stood tlue right .'' It is found in the case, that when the upper mill and flume were erected, and at all times before the 8th of June, 1832, the water for the use of the lower mill was taken from the flume, by means of a conductor therefrom, in the manner, and of the character, and for the purposes stated in the bill, and so continued until the acts complained of, were committed, by the defendants. Such was the manner in which the water for the use of the-lower mill, was taken, when the conveyance in question was made. The grantors still retained the right to take a moiety of the water, for the use of that establishment. In what mode was it to be taken .' Would not the law imply, that it was to be taken in the mode in which it always had been taken .•' And would the grantors have had a right to resort to any other mode .' Would they have had a right to erect a new flume .' It seems to us, that they would not ; but that, in the absence of any stipulation, as to the mode, the^irresistibk influence would have been, that they not only had the right, but were obliged to take the water in the accustomed manner. " Does then, the language of the reservation in the deed, vary the case ? What did the parties intend, by the reservation, is the question : and for the purpose of asoertainino- that intention, it is proper to take into consideration the condition of the property, and the circumstances of the parlies in relation thereto. Strong v. Benedict, 5 Conn. Rep. 210. 1 Phil. Ev. 417, and the cases cited in the note. " It is very obvious, that it was not the intention of the grantors to divest them- selves of any privilege appertaining to the lower mill, of which they still retained the exclusive ownership. It was not necessary for them to stipulate, that the 41 322 DISTURBANCE OF EASEMENTS. Remedy by Suit in Equity. lower mill should have llie privilege of a moiety of the water, or that it should receive it in the usual mode ; for both these privileges it would have had, without any stipulation. And it surely was not the intention of the parties, that the reser- vation should work a prejudice to the e.xistlng right of the grantors. They are to have and retain the privilege of conveying water to the lower mill, in the mode specified, for its necessary accommodation and use. This language would cer- tainly seem to imply very strongly, that some additional benefit was intended, to the lower mill ; and that, in times of scarcity, it should enjoy a priority in the ustf of the water. But however this may be, it is very clear, that the grantors meant to retain to that mill, all the privileges which is then enjoyed. But it is said, that by the terms of reservation, the grantors are to convey the water, not from the flume, but from the dam j and it is insisted, that this language is to receive a strict and literal construction. Were we to yield to this argument, we should, as we think, and for the reasons which have already been given, do manifest violence to the intention of the parties. The argument assumes the fact, that the flume constitutes no portion of the dam : a position which may well be questioned. It is certainly used to confine, as well as to draw off the water ; and it might as well be contended, that a water-gate, used for drawing off the water occasionally, constitutes no part of the dam. But upon the construction contend- ed for, other parts of this reservation are entirely senseless. "The grantors are to retain the privileg£ of taking water from the dam— a privilege, on the principle assumed, never yet enjoyed by them. The truth is, the words " pond," •' dam," and "flume," seem to be used, by these parties, as equivalent. And when we take mto consideration the entire language of the reservation, in connection with the situation of the parties, and the former userf)f the water, we can entertain no doubt in regard to their intention. And this view of the case is strongly fortified, by the particular construction which the parties themselves have given to the grant. It is found, that never, until some time in the year 1335, was the right of the plaintiffs and those under whom they claim, to take water through the flume, denied ; and that never, until that time, did the defendants claim the right to use the water in the flume, as they pleased : that, frequently, when the water was low, and was wanted for the use of the lower mill, Woodruff requested Allison, who had charge of the upper mill, to shut the gates and let the water pass through the conductor to the lower mill ; with which request he always complied. *' Upon these grounds, we are of opinion that this objection cannot prevail. 2. " Had Brainard and Woodruff an assignable interest m this use of the water .'' It has been contended, that the clause in their deed, upon which we have already commented, is a reservation, and not an exception : and several authorities have been cited to show, that a reservation in a deed, is to be most strictly construed. We do not deem it very material to enquire, for we are decidedly of opinion, that, upon every principle of interpretation, Brainard and Woodruff had an assignable interest in this use of the water. That they had such an interest in a moiety of it, to be used in some manner, is unquestionable ; for, as we have seen, they were •wners of the whole ; of a moiety of which they had never parted with. The REMEDIES FOR. 823 Remedy by Suit in Equity. question, then, is reduced to this ; whether they had an assignable interest in this particular use of tlie water ? The objection is, that the use is reserved to them, without naming tiieir heirs and assigns. Now, if we are right in the ground al- ready taken, that their right to tliis use of tiie water was perfect, independently of the reservation in their deed, and that such right is not impaired by the reserva- tion, there is an end of the question. But let us, for a momeiit, examine the lan- guage of the reservation, and see what are the rights of the grantors, under that. It is true, that the right is reserved to them, without words of inheritance, and without naming their assigns. But it becomes material to enquire for what pur- pose the reservation was made. It was "for the necessary accommodation and use of the old shop." Of this they were the owners in fee simple ; and can it be . supposed, that they meant to limit the use of the water, without which the estab- lishment was of no v.ilue, to their own personal occupancy ? And can it be be- lieved, that such was the intention of the parties to this deed > The idea is op- posed to every presumption, and to all probability. Are we, then, prevented, by any rigid rule of construction, from giving eficct to the intention of the parties .' We know of none ; and we think this part of the case entirely free from doubt. 3. " We enquire whether the plaintiffs are entitled to the relief sought by the bill .' The only objection interposed, in this part of the case, is, that the plaintiffs and Hezekiah Scovil, one of the defendants, are tenants in common of the mill, as well as the water privilege. " It has hardly been contended, that in no case, will a writ of injunction lie> in favor of a tenant in common, against his co-tenant. Such a position cannot be sustained. It is opposed, not only to the well established principles of chancery proceedings, but to the authoritj^ of decided cases. A bill for an injunction is- always addressed to the discretion of the court. Yet the exercise of that discre- tion is to be governed by some settled and known rules. The general principle is, that a M'rit of injunction lies to prevent a person from doing an act which appears to be against equity or conscience. 1 Mad. Ch. 104. And the writ may be obtained, by one tenant in common against another, to prevent a destruction of the joint property, and also to restrain malicious waste. Hale v. Thomas, 7 Ves. 589. 1 Mad. Ch. 122. 2 Swift's Dig. 13G. HawJey v. Cloires, 2 Johns. Ch. Rep. 122. "The only remaining enquiry i«, whether the case before us falls within the general principle. And to show that it does, it can only be n?ccssary to advert, very briefly, to the facts found by the court. " It is found, that the defendants, by means of a new orifice, made lower down in the flume, have almost entirely diverted the water from the plalntiff"s works; and that they have denied, and do deny, the right of the plaintifi's to take any water for the use of the lower mill, by means of a conductor placed in the flume. It is further found, that, by means of these acts of the defendants, the plaintiffs are unable to operate their works more than about three hours in a day ; aad daring a great portion of the time, not at all. Now, that these acts tend not only ic injure, but to destroy the property, cannot admit of a doubt. A mill can be of 324 DISTURBANCE OF EASEMENTS. Remedy by Suit in Equity. no value, when the water, by which it is operated, is ivholly diverted : and we all know, that a manufactory that cannot be operated more than three hours in a day, and that at intervals, cannot be operated to any purpose. It is of no possi- ble value. *' Rut it has been urged, that the remedy of the plaintiff's is by writ of partition. And suppose they have the remedy, and that the writ were now pending ; this would furnish no reason, according to the case cited from 2 Johns. Ch. Rep., why the present application should not be sustained : why the waste should not, in the meantime, be stayed. But how can this property be aparted .' Can the privilege of the water, the whole of which is necessary for carrying on the works, be divided .' And how is this manufacturing establishment and its implements, to be set out in severalty ? Will you give the trip-hammer to one ; to another, the anvil ; and to a third, the bellows .' The property is, in its nature, indivisi- ble ; and it is a mockery in these defendants, after having ruined the establish- ment, to talk of partition. Upon the whole, we are of opinion, that the plaintilfs are entitled to the relief sought by their bill ; and would accordingly advise the superior court to pass a decree, that the defendants be enjoined against prevent- ing the plaintiffs from taking one half the water from the flume, for the use and accommodation of the mill below, by means of the conductor mentioned in the bill, or one similar thereto, which may hereafter be constructed. In this opinion tlie other Judges concurred. Decree for plaintiffs. To a bill in equity, in which it was alleged that the plaintiff was the owner of a water power, and that he had leased a part of it, and that the defendant had by a nuisance diminished the water power, the defendant demurred because the "lessee was not made a party plaintiff; but as it^did not appear on the face of the bill, that the interest of the lessee would be affected by the diminution of the water power, there being a surplus beyond the quantity leased, the demurrer was not sustained. Boston Water Power Co. v. Boston and Wor. R. R. Corp. 16 Pick. 512. Specific performance. — The plaintiflT entered into a contract with the defend- ants, by which it was agreed, that the defendants should remove a bank of gravel from the land of the plaintiff, and pay him therefor at the rate of one dollar a square, but that they should not pass across the plaintiff's land in effecting such removal. The defendants obtained a license to cross the adjoining land, over which it become 'necessary to pass in removing the gravel ; but after a portion thereof was removed the license was revoked. The plaintiff thereupon offered to permit the defendants to pass over his own land; but it appeared that this would be attended with great expense to them. The Court refused to compel a specific performance of the contract by the defendants, on the grounds, that the performance had become unlawful by the revocation of the license, and that the plaintiff had a plain, adequate and complete remedy at law. Sears v. Boston, 16 Pick. 357 INDEX. ACTION, parties to, 283. forms of, lor disturbance of easement, 296. {See Easement, Disturb- A.\CE.) AFFIRMATIVE EASEMENTS, instances of, 10. obligation imposed by a servient owner, 10. may be resisted by action brouglit for each exercise, 10. AGREEMENT, creating easement, express, must be by deed, 12. license creating easement revocable, though executed, and expense in- curred, 13. AGREEMENT, IMPLIED. 1. On severance of heritage, 38. (1) By disposition of owner of two tenements, 38. (2) By necessity, 52. 2. By prescription, 62. AIR, (see Light). right not to receive impure air not an easement, 137. no right to lateral reception of air by single act of appropriation, 131. at common law governed by same principles as easement to lateral ])assage of liglit, 137. ALTERATION IN MODE OF ENJOYMENT. when it works an extinguishment of easement, 267. principle of such extinguishment, 271. APPARENT AND NON-APPARENT EASEMENTS, 10. APPROPRIATION. what is, in the case of a water-course, sufficient to confer right to nat- ural easement, 93. single act sufficient to confer right of action for diversion, 93. semble, no such act requisite to confer right to have stream flow on in its accustomed course, 93. appropriation, unless continued duringtwenty years, confers no right ;326 ikDEX. APPROPRIATION {continued). to divert stream, even as against owners of land on its bank* snbsequenily ai)|)lj ing it to a beneficial purpose, 94. qiicere, whether any act of appropriation, in the case of a natural ease- ment, confers right of action for diversion, IJO. deterioration of land sufficient ground of action, 114. semble, continued enjoyment would be evidence of riglit, and, therefore, aflord ground of action, 1 14. so held in case of coinmonerts, 115. attem|)t to api)ropriate suiKcient, thougli defeated by prior wrongful diversion, 114. appropriation can only confer a right to the extent to which the acts are carried, 1 14. American decision, " That uo such previous appropriation is requi- site,' 114. ARTIFICIAL EASEMENTS. in water, 88. may be acquired bj' enjoyment during the requisite period to pen back water on the land above, or discharge it increased or diminished in quantity or injured in quality, 118. to have a sjjout or eaves discharging on neighboring land, 120. to discharge water flowing in an artificial channel, 125. no reciprocal right on the part of servient owner to compel the con- tinuance of such discharge where the origin of riglit shown to have been for convenience of dominant owner, 126, semble, where origin could not be shown, reciprocal easement would be implied by law, 126. CONSTRUCTION of instruments creating easements, .31. all rights ajipendani ))ass vvilh tenement, 32. upon severance of tenements, easements continuous and apparent, and easements of necessity, pass with the tenement with which they have been enjoyed, 32. other easements will not pass without clear inte'ntion shown to create them de novo, 32. *' appertaining and belonging" insufliicient description, 33. " used, occujiied, and enjoyed therewith" sufficient to create them do novo, 32. CONTINUOUS AND DISCONTINUOUS EASEMENTS, 10. CUSTOMS, often resemble easements in mode of enjoyment, 8. are independent of any agreement between the parties, 9. e.xclude the operation of the general rules of law, 9. CUSTOM OF LONDON, 138. no justification in cases under the Prescription Art, 138. INDEX, 82T DESTINATION du pere de famile, 38. DISPOSITION of owner of two tenements, 38. all continuous and apparent easements pass to grantee on severance of heritage, 38. this doctrine confined to "continuous and apparent easements," 38 — 50. reasons why it is so restricted, 40. consistent witii principle, "tliat no man shall derogate from his own grant," 38. more e^tensive, as hinding grantor and grantee equally, 38. analogy to easements of necessity, 39. immateri^d whether easement uciuully acquired before unity of owner- sliij), 41. unity purges the previous tort, 43. by the Civil Law all servitudes were extinguished by unity of owner- slii|), except servitndes of necessity, 50. the owner retaining a portion of liis tenement was entitled to no ser- vitude unless specifically imposed, 50. the general expression "quibus est servitus utique est" affected stian- gers only, 51. where servitude actually necessary for enjoyment of severed tenement, it was created by the act of severance, 51. DISTURBANCE OF EASEMENTS. distinction between right of action for nuisance and for disturbance of an easement, 283. both rights often concur, as in action for corrupting water-course, 283. disturbance of easement must amount to u sensible diminution of its enjoyment, 284. but easement need no#he totally obstructed, 284. sufficient if injury be of a substantial kind, 285. metus et pcricidum sufficient, though no actual injury has been sUBtain- ed 286. mere threats do not amount to a disturbance, 286. action lies for disturbance of secondary easements, 286. Rempdies for Disturbance. By act of the party. party injiu-ed may abate obstruction, 289. whether erected on his own soil, or the soil of his neighbor, or partly on each, 289. this right of abatement extends to all kinds of obstructions, 290. no previous demand necessary, except where property on which obstruction is built has passed into different hands, 290. demand may be made either on lessor or lessee, 291. care required in abating private nuisance, 291. 328 INDEX. DISTURBANCE OF EASEMENTS [continued). Remedies for Disturbance [continued). semble, in abating public nuisance no such care required, 291. By act of law. By action at law. Parties entitled to sue. party in possession may sue, though interference be of a temporary nature only, 292. reversioner may sue if obstruction is of a permanent na- tin-e. 29:3. qucere, wlie her he may not sue in all cases where act is done mider a claim of right, 293. successive actions may be brought for continuance, 295. Parties liable to be sued. party creating disturbance always liable, 29.5. if disturbance be continued, party continuing it liable to action after request to remove, 295. landlord not liable for nuisance created by tenant, 296. Forms of action. real actions abolished, 296. in what cases party suing has election to bring either tres[)ass or case, 296. Pleadings in actions for disturbance.. Allegation of title in the declaraliorv, [daintiff must allege that he ought to have that which he demands, 300. general allegation of title sufficient in all cases, 301. not requisite to allege antiquity of enjoyment, 301. right claimed by reason ofigjossession of tenement, 28. right must be proved as laid, 302. nature of right claimed must be described, 303.. Statement of the breach. sufficient to allege breach of tluty generally, 304. Venue. local, but may be changed after issue joined, 306'. Of the plea. before new rules, general issue admitted almost every possible defence, 307. effect of new rules, 307. By Suit in Equity (see title Easements, p. 341). EASEMENTS. accessorial to the ordinary rights of property, 1. distinction between, and profits a prendi-e, 1. definition, 3. INDEX. S30 EASEMENTS {co7itmued). origin of, 2. number and modifications infinite, 2. natural and artificial, 1. affirmative and negative, 10. continuous and discontinuous, 10. apparent and non-apparent, 10. Essential (Qualities of. 1. Incorporeal, 3. as respects the dominant tenement, they are rights ; as respects the servient, charges or obligations, 3. 2. Imposed on property, not persons, 3. obligation imposed, negative — to suffer, or not to do, 4, obligation passes with servient tenement, 4. 3. Confer no riglit to participation of jjrofits of servient tenement, 4. « 4, Imposed for the beneficial enjoyment of real property, 5. ->i> no easement acquired, unless grantee actual owner of dominant tenement at time of grant, 5. .easements can only be claimed as accessory to a tenement, 5. sufficient, by the Civil Law, if grant made in respect of house then intended to be built, 5. such a grant would be valid by the L:\w of England^- sentWe, 5. must be productive of advantage to dominant tenement, 5. pass with dominant to successive owners, 6. rights of way, . extent of riglit, in all cases, a question for tlic jury, 139. distinct classes of the Civil Law, via, actus, iter, 139. such classificatioiT not recognized by the Law of Scotland, or of England, 144. semble, proof of right to superior class presumptive evidence of right to equal and inferior classes, 145. such presumption may be i-cbutted by other attendant circum- stances, 145. true criterion api)ears to be the amount of inconvenience caused to the servient owner, 145. Rigid to support. 1. Support of land by adjoining land, 147. 2. Support of buildings by adjoining land, 147, 3. Support of buildings by buildings, 147. 1. Support of land by land, ratlier a right of property than an easement, 148. 2. Support to buildings from adjoining laud can only be claimed where buildings are ancient, 150, dictum of Littledale, J., in favor of such an easement, 151. such easement can only I)e acquired in respect of houses originally well built, 156. and kept in good repair, 154. as, otherwise, an additional burtlien would be imposed de die in diem on the servient owner, 155. secx'ecy and difficulty of resistance by servient owner ob- jections to the acquisition of such an easement by mere enjoyment, 15C. 3. Support of buildings by buildings. same objections of secrecy and difficulty of resistance, 157. if encroachment be not clam, and the servient owner can resist, semble, such an easement may be acquired by enjoyment, 157. easement of support appears to exist in the English Law, wiiere both houses originally belonged to the same owner, 157. want of direct authority upon this point, 157. servitudes of the Civil Law — tigni immittendi and paries oneri ferendo, IGO. Legalization of J\'uisances. use of the term nuisance, 185. enjoyment during requisite period sufficient, 185. 336 INDEX. EASEMENTS {continued). a.a action lies until siicli nuisance has continued twenty years, thongli plaintiff became possessed of bis estate since nuisance began, 185. the right to corrupt air by first occupancy erroneously stated by Blackstone, 18G. doctrine of coming to nuisance exploded, ISO. a question of fact, in each particular case, whether the injury complained of amounts to a nuisance, 196. what is such an injury, lUG. Party JValls and Fences. adjoining owners prima facie tenants in common of wall and land on which it stands, 200. this presumption may be rebutted by showing their actual rights, 200. Common L,aw obligation to fence extends oidy to keejiing in parly's owa cattle,^201. though there may exist a spurious easement to repair, as against the neighbor's cattle, 201. but this obligation is strictly confined to cattle being lawfully on the adjoining land, 201. analogous liability incurred by driving or enticing animals upon party's land to their injury, 203. no liability for injury to cattle, &c., trespassing, 205. party liable for injury done by ferocious animals kept to guard hi;^ premises, or by dangerous engine, 210. unless party injured had express notice, 210. reason for such liability, 210, semhle, in a warren or ancient park it is lawful for the owner to set; traps or spikes, 210. Easements for roots of trees. no" authority for any such right by mere enjoyment, 210. objections to it — secrecy and constant change of enjoyment, 210. adjoining owner may cut off roots projecting into his soil, 210. Incidents of Easements. servient owner not bound to repair, at Coininon Law, 215. dominant owner liable for injury, when enjoyment had by means of some opus manufactum, 216. spurious easement to compel servient owner to repair, 216. may be bound by prescription or tenure, 225. dominant owner has no right to go extra viam because road is found- rous, where he is himself the party to i-epair, 228. dominant owner may do whatever is necessary for the purpose of repairing — may enter on the land, dig, &rc., 228. /Secondary Easements. INDEX. 337 EASEMENTS [continued). implied by law for the full enjoyment of primary easement, 231. analogous to easements of necessity, 231. extend to whatever is required by the dominant for the full enjoy- ment of iiis riglit, 231. dominant owner must do no unnecessary damage, 233. his right extends only to restore the easement to its original state, 235. Extent and Mode of Enjoyment. dominant owner has no right to increase his enjoyment so as to im- pose an additional burthen on servient owner, 237. an alteration of the dominant tenement, which causes no injury to servient owner, will not destroy easement, 239. so, pulling down for the purpose of necessary repair, 238. dominant may improve the condition of the servient owner, but can- not make it worse, 2.39. the owner of land on which a spring rises allowed a reasonable de- gree of liberty in changing the course of the water, though to the injury of his neighbors, 239. if dominant tenement be severed, the easements are severed like- wise, 243. but not so as to impose additional burthen on servient, 243. Duty of servient owner, 243. must not do anything to obstruct dominant in his enjoyment, 245. quaere, whether liable for obstruction caused by roots of trees, &c., 245. liable by the Civil Law, 245. semble, he is liable by the Law of England also, 246. Rights of servient owner. may do necessary repairs if dominant owner neglect to do tlieni, 246. if easement be granted generally, or arises by implication of law, is the right of selection in the dominant or servient owner ? 248. opinions expressed in the English Law at variance, 248. distinctions laid down by tiie Civil Law, 248. if selection once made, no subsequent change allowed, 249. Extinguishment of EaseiMENTS. By express Release. must be under seal, 251. parol declaration may be evidence to show the character of any act done, or of cessation of enjoyment, 251. inclosure acts operate as express releases, 252. By implied Release. 1. By Merger. easement extinguished by union of dominant and servient 43 338 INDEX. EASEMENTS (continued). tenements in the same proprietor, 253. extinguishment only takes place where the estate in both tenements is in fee-simple of an equally high and * perdurable nature, 253. unless this he the case, tiie easement is suspended only, 253. strictness of this doctrine, 253. easements extinguished by unity do not revive on sever- ance, 253. quare, whether unity of seisin is sufficient without unity of possession, 255. semble, it is, 255. practically immaterial whether apparent and continuous easements and easements of necessity revive on sev- erance, or arise by a new-implied grant, 255. 2. By Necessity. easement put an end to by license given to servient owner to do some act inconsistent with the enjoyment of it, 256. 3. By Cessation of Enjoyment. owner of dominant tenement must acquiesce to render such ces- sation valid, 25G. permanent alteration of dominant tenement evinces sufficient intention to abandon right, 257. alteration of temporary nature, as for purpose of rc-building, not sufficient, 258. material question, is it the intention of the dominant owner to renounce his right ? 261. the Civil Law required some act to be done by the servient owner while such altered status continued, 262. where an encroachment has taken place two questions arise : — ]st, Does right still exist to extent of previous enjoyment? 2nd, Can dominant reform his tenement, and recur to former mode of enjoyment, 263. where easement depends on repeated acts of man, as a right of way, original right not lost by encroacliment, though party liable to action for trespass committed, 204. where encroachment imposes no greater burthen on the servi- ent owner the right is not lost, 264. difficulty of reconciling decisions upon this point, 264. party may so alter mode of enjoyment as to lose his right alto- gether, 267. principle of the loss by encroachment, that the dominant owner has no right to make any alteration the effect of which will be to impose an additional burthen on the servient tenement, 271. I INDEX. 339 EASEMENTS {co7ithiued]. either in actual amount of i-estriction, or difficulty in resist- ing it, 271. where origin.il and usurped rights cannot easily be separated, an increased burthen is imposed, 272. burthen of jjrooflies on dominant owner, 272. no express authority in the English Law, whether party may, after encroachment, restore his tenement to its original status, anil retain his former easements, 273. semble, discontinuous easements cannot be lost by simple non- user during a shorter pei'iod than that required for their acquisition, 274. mere non-enjoyment or variation, unaecompanied by intention to relinquish, will not work extinguishment, 275. where non-user accompanied by disclaimer, a shoi-ter period suffices for this j)urpose, 276. where acts of interruption are shown to have taken place, the material question is, whether such acts were known and acquiesced in bj^ the party interested, 277. quaere, whetiier in all cases, where easement claimed by prescrip- tion, the enjoyment must, during its entire continuance, possess all the essential qualities, 277. inconvenience arising from the statute obviated by holding that it does not repeal common law, 278. what interruption sufficient to defeat right to easement already acquired by prescription, 278. acquiescence does not imply any positive act on the part of dominant owner, 280. lengtli of time required by the Civil Law for loss of servitude by cessation of enjoyment, 280, Disturbance of Easements. What amounts to a Disturbance. must be a sensible diminution of enjoyment, 284. need not totally obstruct it, 284. must be of a substantial nature, 285. imminent danger sufficient without actual injury sustained, 286. mere threats do not amount to a disturbance, 286. action lies for disturbance of secondary easement, 286. Remedies for disturbance. By act of the party aggrieved. party aggrieved may abate obstruction, 289. whether built on his own or on adjoining land, or partly on each, 289. this right extends to all kinds of obstruction, 290. previous request to abate not generally necessary, 290. 340 INDEX- EASEMENTS [continued). Remedies for disturbance {continued). except where |)roperty, on which obstruction is erected, has changed hands since the erection, 290. degree of care required in abating private and public nuisances^ 291. By Act of Law^ By Action at Law. Parties entitled to sue. party iu possession may always sue, 292. when reversioner may sue, 293. successive actions for continuance, 295. Parties liable to be sued. party erecting obstruction, 295. party continuing after request, 295, landlord not liable for nuisance erected by his tenant, 296, Forms of Actions. real actions abolished, 296. when party injured has. election to sue in case or Oespass, 296. Pleadings in Actions for Disturbance. Allegation of Title in the Declaration. must state that plaintiff ought to have that which he claims, 300. general allegation of title sufficient in all cases, 302. right must be proved as laid, 302. secus as to title, 302. Statement of the Breach. general statement of breach of duty sufficient, 303. venue local, but may be changed after issue joined, 306. Of the Plea. before new rides general issue sufficient in all cases, 307. effect of new rules, 307. Pleadings where Tort justified under Easement. greater certainty required in ])lea than in declaration, 308. inconsistency of such a rule, 308. particular title relied on must be pleaded, 308. general allegation of enjoyment during the requisite period allowed by Prescription Act, 309. how the periods of enjoyment are to be reckoned, 309. pleading title by modern lost grant, 310. by disposition of owner of two tenements, 310. by necessity, 310. taking plea distributively under new rules, 310. INDEX. 34 J EASEMENTS {contmued). re|»]ication and new assignment, 311. what must be j-eplied specially under Prescription Act, 311. prescription at coinmou law avoided without a traverse, 312. By Suit in Equity. general rule as to interference by courts of equity, 313. plaintiff's title at law must be clear, 315. individuals sustaining special damage from public nuisance may a])ply to the court for relief, 319. _ distinction where it is sought to compel defendant to do any- thing, and merely to prevent his doing something, 320.. ENCROACHMENT. where easement depends on repeated acts of man, as a right of way, does not destroy right, but the party is liable to an action for the trespass, 264. where no additional burthen imposed by it on servient owner, does not destroy right, 264. qucere, whether it does not destroy original right if additional burthen be imposed by it, and tlie original right cannot easily be severed from the encroachment, 264. a party may so alter his mode of enjoyment as to lose his right alto- gether, 267. principle of loss of easement by encroachment, 27J. incidental effect of Prescription Act in defending, 279. ENJOYMENT TO CONFER EASEMENT. against whom it must be had, 74, 82. by whom, 82. qualities of enjoyment — peaceable, open, and as of right, 82. identical with the Civil Law definition, non vi, non clam, vel precario, 82. What amounts to an interruption, at common law, 83. by the statute, 83. by the Civil Law, 83. Secrecy may arise either from mode of enjoyment or nature of the ease- ment, 83. intention to conceal sufficient in the Civil Law, 84. Enjoyment had by permission or under license not " as of right," 84. such permission may be either verbal or in writing, except in cases where by the statute the right is declared absolute and inde- feasible, 85. no enjoyment as of right when unity of possession exists, 85. enjoyment of water flowing in an under-ground channel, under ser- vient tenement, confers no right, semhle, 123. mere enjoyment confers no right to an easement of prospect, 134. 342 INDEX. ENJOYMENT TO CONFER EASEMENT {continued). Extent ami mode of enjoyment. dominant owner lias no riglit to extend liis enjoyment so as to im- pose an addiiional l)urtiien on servient owner, 237. dominant liaving a right of way to his field cannot use sueh way to otiier fields newly acquired by him, 237. pulling down house for tlie purpose of repair, wilii an intention of rebuilding, does not destroy easements attaclied to it, 238. nor the alteration of a mill from a grist to a fidling mill, or a trifling change in the course of a stream, causing no injury to the ser- vient owner, 239. owner of land on which spring rises allow^ed a reasonable degree of ]il)erty in changing the course of the water, though such change be injurious to his neighbor, 239. servient owner must do no act to obstruct dominant in his enjoy- ment, 245. quart, whether liable for obstruction caused by roots of trees, &c.245t liable by the Civil, and, semble, also by the English Law, 245-6. servient owner may do necessary repairs if dominant neglect, 246. Cessation of enjoyment. to cause extinguishment must take i)lace witli acquiescence of dom- inant owner, 256. permanent alteration of dominant tenement evinces sufficient inten- tion to abandon right, 257. but not a tem[jorary change, as for the purpose of repair, 258. material question — is it the intention of the dominant owner to relin- quish his right ? 261. a party may so alter his mode of enjoyment as to lose his right alto- gether, 267. during what period mere cessation of enjoyment suflicient to work extinguishment of discontinuous easement, 273. |:XTINQUISHMENT OF EASEMENTS, [vide Easements), by express release, 251. by implied release. (1) By merger, 253. (2) By necessity, 256. (3) By cessation of enjoyment, 256, effect of Prescription Act, 277, FENCES. common law liability, to keep in party's own cattle, 201. spurious easement to keep in repair, as against cattle of adjoining owner, 201. strictly confined to cattle being lawfully on neighboring land, 201. analogous liability incurred by parties enticing or driving animals on their land an^ injuring them, 203. INDEX. 343 FENCES (continued). DO litibility foi* accidental injury to cattle &c. trespassing, 205. liability for injiny done by ferocious animals or dangerous engine kept for protection of property, 210. unless party injured had express notice, 210. reason for such liability, 210. semble, lawful to use dangerous engines in an ancient park or warren, 210. FEROCIOUS ANIMALS. liability for injury done by, where kept for protection of property, 210. GRANT LOST. title by, of modern introduction, 66, in reality amounted to shortening period of prescription to twenty years, 66. distinction taken between claims by prescription and by lost grant, as * to effect of enjoyment, 66. not destroyed by Prescription Act, 68. where easement granted generally, who has the right of selection, 24§. assertions expressed in the English Law contradictory, 248. distiifctions laid down by the Civil Law, 248. when selection once made, no subsequent change allowed, 249^ LENGTH OF TIME requisite to acquire easement, at common law, 63. by statute previous to Prescription Act, 63 — 67. by modern lost grant, 66. the Prescription Act, intention of, 67. enactment, 68 — 71, effect of, 71. except in case of light two periods fixed, twenty and forif years, 71. enjoyment for twenty years the same as before statute passed, 71. enjoyment for forty years indefeasible, unless shown to have been had under consent or agreement in writing, 71. period of enjoyment must in all cases be that immediately pre- ceding some suit or action in which the claim was a ques- tion, 71. exception for disabilities, 71. peculiar wording of s. 8, 71. effect of omission of word easement, 72. actual extent of exemptipn afforded by s. 8, 72. twenty years' uninterrupted enjoyment of light confers ah abso- lute i"ight, unless had under a written agreement, 73. Do title conferred by enjoyment during any shorter period than those respectively specified in the statute, 73. S44 INDEX. LENGTH OF TIME, &c. {continued). period of prescription fixed by the Civil Law, 73, by tiie Frenrb Code, 73. length of time requisite for lo.ss of discontinuous easement by mere cessation of enjoyment, 273. LICENSE. to do some act on land of licenser may extinguish easement, when, 13. cannot create an casement, 13. to do an act on land of licenser revocable, though executed and ex- pense incurred, 12. b}' dominant to do some act inconsistent with enjoyment of casement extinguishes the easement, 256. LIGHT, {vide Length of time, Windows). no right acquired to easement in, by mere act of appropriation, 131. no natural right to lateral reception of light, 131. precise nature of easement to light doubtful, 132. no easement of prospect acquired by mere enjoyment, 134. may be by express contract, 134. right to light may be acquired for purposes of trade, 134. extent of right measured by amount of enjoyment proved to have been had, 134. MERGER. extinguishment by, when owner of dominant and servient tenements has an estate in fee-simple in both of an equally high and per- durable nature, 253. strictness of this doctrine, 253. if estates not in fee and equally high and perdurable, easements are suspended only and revive on severance, 253. ■qxKEre — whether unity of seisin, without unity of possession, is suffi- cient, 255. semhle — it is, 255. easements extinguished by merger do not revive on severance, 255. distinction not practically material, 255. NECESSITY, EASEMENT OF. implied by law to effect the intention of parties, 52. way of necessiiy only a single species, 52. legal maxim on which easements of this class depend, 52. applies equally to a grant or reservation, 52. way to church or market, 55. to carry away tithes, 59. easement for parson to make tithe-grass into hay, 55. grantee of wreck has a right of way to go and take it, 56. implied right measured by nature of grant or reservation to which it is incident, 56. INDEX. 345 NECESSITY, EASEMENT OF {conlimied). ceases vvitli ilie nei-essity from which tlie legal implication arose, 5C. way of necessity exists only so long as party has no means of approach to the close to which, &c., over his own land, 57. easements of necessity extinguisiied by luiity of ownership, 60. a new grant implied on subsequent severance, GO. the new right modified by necessity existing on severance, Gl. NECESSITY, extinguishment by, when dominant owner authorizes any act which is inconsistent with enjoyment of easement, 256. NEGATIVE EASEMENTS, instances of, 10. obligation imposed*by a servient owner, 10. can be opposed by obstruction to enjoyment only, 10. NEGLIGENCE, in law and in fact. misapprehension of the two kinds of negligence, 161. Negligence in law. always actionable, unless the act was not only involuntary, but inev- itable, and beyond his own contiol, IGl. hona fides no jnsiifieutioii, 1G7. accordance of the Civil Law with this doctrine, 168. Negligence in fact. no action maintainable, unless damnum et injuria concm-, 170. doctrine vaguely laid down in decided cases, 170. if an actual encroachment has taken })iace, the party removing it, and tli^ts taking the law into his own hands, must use no un- necessary violence, 170. subject to this restriction, provided a party keeps within his own property, and does not imniit any thing beyond — semble, negli- gence in fact is not actionable, 171, 179. party pulling down his house not bound to shore up house adjoin- ing, 171. qvuEre — whether he is bound to give notice of his intention to pull down his house, 178. semble, he is not bound by law to do so, 178. liability of public officers, acting under limited authority, depends upon different principles, 179. wliere, from situation of premises, the acts of the party, though en- tirely done on his own soil, may be dangerous to the public, he is bound to use such reasonable care as shall enable per- sons also using reasonable care to escape danger, 183. NUISANCE. term applied both to disturbance of easement and infringemcDt of common law right, 185. more properly applicable to the latter, which will in process of time confer an easement, 185. 44 31fi INDEX. NUISANCE {continued). no nuisance is legalised until it lias existed twenty years, 185. any j)aity injured by it may maintain an action, allliougli it existed pre- vious to liis becoming itosscssed of liis property, 186, right to corrupt air, &c., by first occupant, erronously stated by Black- sloiie, 186. doctrine of coming to a nuisance exploded, 186. it is a question of fact, in each particular case, whether the injury com- plained of amounts to a nuisance, 196^ what is such an injmy, 196. abatement of (vide Disturbance). * OCCUPANCY. no title acquired by, to ituming water, so as to aidhonze any diversion from the natural and accustomed course, 92. erroneous statement of Blackstone, 92. no title acquired by occupancy to corrupt the air, unless an easement has been obtained by length of enjoyment, 186. doctrine of coming to a nuisance exploded, 186. PARTY WALL. prima facie, adjoining owners tenants in common of wall and land on which it stands, '^00. prescription rebutted by showing their actual rights, 200. building act, 201. POSSESSION. < things corporeal are alone susceptible of, 62. incorporeal rights of quasi possession only, 62.. quasi possession susceptible of the same qualities and defects as actual possession, 62. must be animo et corpore, 62. PRESCRIPTION. definition of, 62. quasi possession requisite to acquire an easement, 62. must be uninterrupted on the part of dominant owner, 62. what amounts to such interruption, 62. cessation to use, or enjoyment not had in proper manner, 64. permission asked breaks continuity of enjoyment, 63. length of enjoyment to confer title at common law, 63. restricted to 1 Rich. J, by analogy to stat. Westminster, 64. same analogy said not to have been adopted in case of stat. 38 H. 8, 64. but enjoyment for shorter period raised presumption of enjoyment during the whole time required, unless the actual origin of it was shown, 64. time of prescription shortened by analogy to stat. 21 J. 1, c. 16, 64. opinion of Mr. Serjeant Williams, 65. INDEX. 347 PRESCRIPTION [continued). doubts as to correctness of construction ])ut upon 88 IT. 8, 65. Statutes of Liniitations, being in pari materia, ought to receive a uni- form construction, 66. easements held to be acquired by enjoyment for twenty years, though shown to have been extinguished by unity, 66. or even by act of parliament, GG. title by modern lost grant, GG. in reality reduced time of prescription to twenty years, 66. where claim was by prescription, lengtli of enjoyment was held to con- stitute a title — vvJiere claim was by lost grant, enjoyment held to be only evidence of title, 66. confusion caused by different modes in which judges left these ques- tions to juries, GG. Intention of Prescription Act, 67. has not superseded the common law, 68, 277. enactment, 68, 71. two periods of prescription introduced, except in case of light, 71. enactment as to twenty j'ears' enjoyment tlie same as the common law, 71. where enjoyment had for forty years, personal disability of servient owner immaterial, 71. can only be defeated by proof that it was had under written agree- ment, 71. periods of enjoyment must be those immediately preceding some ac- tion or suit in which the claim was called in question, 71. exception for disabilities where servient tenement was under lease for any term exceeding three years from the granting thereof^ 71. effect of omission of word 'easement' in s. 8, 72. actual extent of exemption conferred by this section, 72. twenty years enjoyment of light confers an absolute right unless had under written agreement, 73. how far the exemption in s. 8 api)lies to easements of light, quare, 73. no title conferred by enjoyment during any shorter period than those fixed respectively, 74. Against whom a title by prescription may be acquired. grant can only be made by owner of estate of inheritance in servient tenement, 75. cannot be presumed from his acquiescence, unless he is both cogni- zant of the fact and able to interfere, 75. how far reversioner bound when proved to have been aware of en- joyment, 76. except in case of light, statute appears to have made no difference, 78. if enjoyment began before tenancy, knowledge of servient owner pre- 345 INDEX. PRESCRIPTION [conlmued). sumecl after twenty years, until the contrary is shown, 79. disahiliues of servient owner, 80. held l»y Court of Exchequer tliat enjoyment of twenty years, to con- ier riglii, must be sliown to be goiui against all the world, 80. enjoyment for forty yeais coiders right, until it is shown that rever- sioner has interfered within three years alter his right accru- ed, 81. By whom a title h> prescription may be obtained, by party in j(Oss<;ssion of dominant tenement, 82. though not the owner of the fee, 82. by his servant, if had in resjiect of the tenement, 82. the enjoyment must be peaceable, open, and as of light, 82. no prescri[)tion against a prescription, 88. effect of Prescription Act in tiefoating easements acquired by enjoy- ment, if the statute is held to have superseded the common law, 278. no precise enactment as to loss of easements already acquired, 278. what interruption sufficient to defeat right already acquired, 278. REPAIR. servient owner not bound to repair at common law, 215. spurious easement to com])el servitni owner to repair, 216. may be bound by prescri|iiion or tenure, 225. dominant owner has a right to do ail necessaiy repairs, and, for that ])mpose, to enter upon servient tenement, &.C., 229. but not to ini|)ose any additional bmthen on servient owner, 232. must do no unneces.«ary damage, S34. by the Civil Law liable to nw.ke good all damage done, 2-34. he has a right to restore his easement to its original condition, but not to create a n w one, 235. if doininant neglect to do necessary repairs, servient owner may do them, 24(5. REVERSIONER. when bound by user during particular estate, 76. within what time he must interfere after particular estate determines, 81. when he may sue for di.'^turbance to easement, 293. semhle, he may sue in all cases in which the continuance of the disturb- ance would become evidence of a right against him, 2SJ3. SECONDARY EASEMENTS. implied by law for the lull enjoyment of primary easement, 231. dominant owner may do all that is recpiisite for the enjoyment of his right, 232. but must not impose any additional burthen on servient owner ^ 232. • INDEX. 349 SECONDARY EASEMENTS {continued). must do no unnecessary damage, 234. bound l)y the Civil Law to repair damage done by him, 234. Jiis right extends only to restore his easement to its original condition, 235. action lies for disturbance of, 286. Servitudes of the Civil Law, praedial divided into rustic and urban, 11. comprised the profits a prendre of the English Law, 1. obligations imposed bj', 3, 4. extinguished by unity of ownership, and did not revive on severance, unless specifically imposed, 51. prsedial urban servitudes, what rights they comprised, 11. rustic servitudes, II. aquae ducendae, IIG. stillicidii vel fluminis recipiendi, 120. jus projiciendi, 122. jus protegendi, 122. ne luminihus officiatur, 130. ne pros|)ectui ofliciatur, 136. tigni immitiendi, K>0, 218. paries oneri ferendo, 160, 218. SUPPORT. of land by adjoining land, 147. rather a right of property than an easement, 148. Of buildings by adjoining land. can only be claimed in respect of ancient buildings, 150. dictum of Liltledale, J., in favor of such an easement, 151. though house is modern, yet if the laiid would have fallen in, though miincumbered by buildings, an action will lie for withdrawing support, 154. no right of support for buildings imless they are kept in good repair, 154. and properly constructed, 155. otherwise an increased burthen would be imposed de die in diem on the servient tenement, 155. secrecy and difficidty of resisting encroachment objections to the ac- quisition of such an easement by mere enjoyment, 155. Support of buildings by buildings. if encroachment be not clam, and be capable of being resisted, sernWe, such an easement of support may be acquired by enjoyment, 157. would exist as "disposition of owner of two tenements," where both houses originally belonged to the same owner, 157. absence of direct authority on this subject, 157. 350 INDEX. SUPPORT {co7Uinued). servitudes tigni imniittciidi and paries oneri fcrendo, ICO, 218. STAIR'S INSTITUTES. inmiber and variety of servitiidci?, 2. different kinds ofriglits of wa}-, 140. obligation of servient owner to repair, 222. SUSPENSION OF EASEMENTS. wlien owner of dominant and servient tenements has not an estate in fee-simple of an equally high nature in both, 253. easements revive on subsequent severance of tenements, 254. TREES. uo easement for roots to project into neighboring soil, 210. neighboring owner may cut off such jjrotruding roots, 210. quare, in whom the property of trees growing on the boundary of two est;j*es is vested, 210. UNITY OF OWNERSHIP. extinguishes all easements, whether of convenience or necessity, 60. the estates in both tenements must be a fee-simple of an equally high and j)erdural)le nature, 253. strictness of this doctrine, 253. otherwise easement suspended only, 2.53. qucBre, whether unity of seisin is sufficient without unity of possession, 255. semble, it is sufficient, 255. easements extinguished by unity do not revive on severance, 255. practically immaterial, as doctrine confined to those easements of which a new grant would be implied on severance, 255. WATER-COURSES. natural and artificial easements, 88. former — usually meant by term 'water-course,' 91. natural easements partake of the character ofriglits of property, 88. artificial — right to divert stream, also called 'easement,' 88. no prescription against presciiption, 88. artificial easement in reality amounts to this 88. diffictilty which may arise in i)leading, 88. duty to respect the natiu-al course of a flowing stream imposed by law, 88. judgment of Story, J., as to right of riparian owners, 89. incorporeal right to use water confounded with a right to the thing it- self, 92. erroneous doctrine of Blackstone, that the first appropriator of a stream had a right to divert it by virtue of such prior a[»|)ropriation, 92. the right to enjoy a portion of the elements to-day can give no title to another portion not then in existence, 92. INDEX. 351 WATER-COURSES {continued). continueil beneficial enjoyment is evidence of a riglit to have a stream run on in ils accustomed course, which right can only be defeat- ed by an easement in some other party to divert it, 93. material question, what is such a beneficial enjoyment as vests the right, 93. authorities appear to have settled, that a single act of appropriation is enough, if stream of sufficient antiquity, 93. modern act of appropriation can confer no additional right, 93. right to flow of water independent of act of perception, but no right of action unless actual damage sustained, 93. no action being, maintainable for injuria sine damno, 171. prior diversion confers no right until easement acquired by prescrip- tion, 94. action maintainable for continuing diversion, though it bpgan before plaintiff's appropriation commenced, 94. qu(zre, wiiether any act of appropriation is necessary to maintain suit for diverting water from its natural course, 111. any deterioration to adjoining land sufficient, 114. hardly possible, in fact, that such diversion should not injure adjoining lanQiTY OF CALlFQRlOa UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 770 841 5 S«3i