\mm
MmmMmMim'.
mmMm
UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
TREATISE
AMERICAN LAW
EASEMENTS AND SERVITUDES.
EMORY WASHBURN, LL.D.,
BUSSEY PROFESSOR OF LAW IN HAEVARD UNIVEESITr, AUTHOR OF A TREATISE
ON THE AMERICAN LAW OP REAL PROPERTY.
SECOND EDITION.
BOSTON:
LITTLE, BROWN, AND COMPANY.
1867.
Entered according to Act of Congress, in the year 1S67, by
EMORY WASHBURN,
in the Clerk's Office of the District Court of the District of Massachusetts
T
\%1
University Press : Welch, Bigelow, & Co.,
Cambridge.
TO THE
HON. HORACE BINNEY, LL.D.
In dedicating this work to you, without first asking permission, I may
have presumed too far upon the acquaintance which I share with the
profession and your fellow-citizens generally, through your distinguished
learning as a jurist, your practical wisdom as a statesman, and the fruits
of a long hfe of usefulness and honor.
In this hour of peril to all we hold dear, it is grateful to recall that a
few remain who, like you, stood by the nation's cradle at its birth, and
have watched over its wonderful growth as it rose and expanded under
the protection of wise laws, and the invigorating influences of beneficent
institutions.
It' is impossible to contemplate even so minute a department of the law
as that to which the following pages are devoted, without perceiving
something of the all-pervading spirit of progress and improvement which
has hitherto vitalized the jurisprudence of our country. And of no State
can this be more truly said than of Pennsylvania, within which your
labors have been chiefly employed.
You have borne your full share, as a minister of the law, in giving
form and consistency to that jurisprudence which, we trust, will carry it
safely through the ordeal of a civil war, again to bless a prosperous and
a united people.
In the hope that the light of returning harmony and prosperity over
our common country, under the protection of Law, may yet gild the
declining hours of so active and useful a life, permit me to subscribe
myself, with high respect,
Your obedient servant,
EMORY WASHBURN.
Cameridge, February, 1863.
H*J
ERRATA.
On page 97, 23d \iae, for covenantor read covenantee.
" 133, last line, /or judgment read enjoyment
" 271 note, /or § 16, read Section 6.
PREFACE
TO THE SECOND EDITION.
The manner in -which the first edition of this -work has
been received, is a gratifying evidence not only of a want in
the profession to be supplied, but that the attempt to meet it
has been reasonably successful. It has encouraged the au-
thor to a renewed effort to render the work still more satis-
factory and complete. In the present edition he has incor-
porated about a hundred pages into the text of the work,
and has endeavored to collect for reference every case to
which he had access, which had been decided, upon the sub-
jects of which it treats, before the volume went to press.
The subjects upon which the text has been chiefly enlarged,
have been the doctrine of Basements created by implication,
upon the division of heritages, and the interesting, modern
doctrine of mutual easements and servitudes between parts
of a once common estate, growing out of their relation to
each other in the orderly arrangement of buildings, &c.,
upon streets, squares, and open areas in cities and villages.
Other subjects also have been more fully developed, and in a
few instances the text has been changed to conform to the
changed condition of the law.
A reference to the numerous cases which have been de-
cided by the courts since the publication of the former
edition, would serve to indicate the growing interest and
importance of the subjects of which it treats. Indeed it
could hardly be otherwise, in view of the growing wants of
vi PREFACE TO THE SECOND EDITION.
a busy, thriving community, who are constantly building up
towns and villages, and calling into exercise the privileges
and conveniences which a successful prosecution of industry
and the arts demands. While the law is continually making
progress in this direction, it is rather by the application by
courts of known and familiar principles to new cases as
they arise, than by any action of the law-making power in
the State. It is for this reason, that a somewhat liberal
reference has been made, in this as in the former edition, to
elementary treatises of foreign jurists.
The author would be doing injustice to his own feelings
if he failed to acknowledge a grateful sense of the expres-
sions of favor with which his attempt to supply an American
work upon the Law of Easements and Servitudes, has been
received. And he can only add the hope that the present
volume may be found equally acceptable, at least, with that
whose place it has been prepared to supply.
Cambridge, June, 1867.
PREFACE
TO THE FIRST EDITION.
The following work was undertaken at the suggestion of
various gentlemen of large experience, that something of
tlio kind was needed bj the profession. This conviction
has been strengthened in my own mind, at every step of
the progress of its preparation. There were, it is true,
treatises extant upon some of the topics embraced in it,
and one upon the general subject of Easements had attained
a high rank as a work of merit. But an American lawyer
need not be reminded that the treatise of Messrs. Gale and
Whatley, or that of Mr. Gale, as it appears in the third edi-
tion, was in all respects English in its character, and in the
authorities which one finds there cited. If here and there
this rule has been departed from, it has been too infre-
quent to detract from its character as a purely English
work.
It appeared in 1839, and in 1840 was republished in New
York, with notes " by E. Hammond, Counsellor at Law."
In 1848, a second edition of the English work was pub-
lished, and in its Preface the authors explain, in half apolo-
getic terms, why they had presumed to admit into it the
few American cases which it contained. " In Acton v.
Blundel," they remark, " the Court of Exchequer Cham-
ber cited American authority as at least proper to be
weighed and examined in deciding a case upon principle.
In the present edition, two cases have been inserted, de-
viil PREFACE TO THE FIRST EDITION.
cided in the courts of the United States, upon a question
very bare of authority, — the legal relation of owners of
several stages of a building. They have been taken from
an edition of this work published at New York." A third
edition, bearing also the name of Mr. Willes, was published
in 1862, which not only sustained the high character which
the work had previously held, but did not detract from its
exclusive nationality, so far as the United States were con-
cerned.
While, however, no one has any right to object that the
authors of that work chose to confine their references to
such cases as were of authority in the English courts, it is
not to be lost sight of, that there were scattered through the
volumes of American reports, at the times when it appeared,
literally hundreds of cases, bearing directly upon the sub-
jects of which it treated, many of which, for research and
ability, would not have suffered in comparison with the
ablest judgment to be found, upon a like subject, on the
records of the English courts.
It was not, therefore, strange that a sentiment prevailed,
that the American Bar needed a convenient medium of ref-
erence, where the learning of the American courts, upon a
subject of such general interest as is here treated of, might
be found by the side of that of the Queen's Bench and Ex-
chequer Chamber.
Another reason why a treatise upon the English law
alone, however perfect, could not but be inadequate to the
wants of the profession in the United States, grows out of
the difference there is in the condition of the two countries,
and the fact that the jurisprudence of a people must con-
form to their peculiar wants and circumstances. It is the
difference between a community where everything has be-
come settled and compact by age, and tradition and pre-
scription have fixed, in the national mind, notions and ideas
which render all but inflexible the canons of property and
right ; and a people who, while sharing in these tradition-
PREFACE TO THE FIRST EDITION. IX
ary habits of legal thought, have been busy in ingrafting
upon an existing system laws adapted to the wants and
condition of a new and growing body politic, in a country
with essentially different physical capacities from that from
which they had borrowed their jurisprudence, and requiring
its rules of property to conform to the genius of its institu-
tions and the forms of its government.
In order, however, to be able to trace and understand
wherein this complex system of the American common law
is coincident with or differs from that of England, its rules
are to be sought and studied in the multiplied and con-
stantly increasing volumes of reported cases of the English,
as well as our own national and State courts ; while the
difficulty of doing this, from their very multiplicity, is to
many, if not most of the profession, well-nigh insurmount-
able.
These are among the considerations to which the present
work owes its conception and execution. And while for the
arrangement of its parts, as well as the collection of most of
its materials, I have been obliged to content myself with the
unaided results of my own reflection and research, I have
not hesitated to avail myself of works like those of Messrs.
Tudor, and Woolrych, and Angell, which treat more or less
in detail upon the subjects which make up the body of this.
It has been my aim to examine, for myself, every reported
case which bore sufficiently upon the topic under considera-
tion to warrant a reference to it as an authority. The cases
thus examined considerably exceed a thousand in number,
and the fact is alluded to only that, if effort in that direc-
tion shall be found less successful than I could have wished,
it may not seem to have failed from the want of reasonable
diligence.
In one respect, I may add, I found much embarrassment
in the preparation of the work.
No lawyer need be told that many of the principles of the
common law of Easements are derived directly from the
X PREFACE TO THE FIRST EDITION.
Civil law, and may be found in tlie Scotch and Continental
systems of jurisprudence. The question early arose in this
preparation, how far it was desirable to collect and compare
the analogies that exist between these systems and that of
the common law. While such a reference might have given
to the work an air of learning and research disproportioned
to the actual labor it would have cost, it could not have
failed to swell it to an inconvenient size, and, what seemed
to be far more objectionable, it could at best have been of
but doubtful utility. So far as the courts of common law
had, in their reported cases, adopted principles which were
common to both systems, it was unnecessary to restate them
iu the language of the original sources from which they had
been derived. And so far as there were parts of these sys-
tems which had never been recognized by the courts, a dis-
cussion of them could be little better than speculative in its
character, and would require careful and extended explana-
tions and limitations, that they might not mislead.
After considerable reflection, therefore, it was concluded
to omit, with a few exceptions, references to works upon the
Civil and Continental law, except for purposes of explanation
and definition. And so far as this rule has been departed
from, the exceptions have been limited to topics upon which
the common: law seemed to be especially defective and unsat-
isfactory. Such was the case, for instance, in the matter of
" party walls." And where this has been done, the citations
are made to furnish their own explanation, and are in little
danger of misleading even the casual reader.
If it should seem to any one that the citations of authori-
ties in the work are unnecessarily numerous, it is due to the
subject to remind such, by way of explanation, that not a
little of the law of Easements, as it is now understood in the
courts of common law, has been progressive in its character
and recent in its development.
The rule, for instance, Avhicli regulates the rights of re-
spective mill-owners upon the same stream to the use of the
PREFACE TO THE FIRST EDITION. XI
water thereof, was settled in England as late as 1805. And
the rights of adjacent owners of land in respect to subter-
ranean waters percolating from the one into the other, it is
believed, were for the first time adjudged by any court of
common law in that of Massachusetts in 1836, but were not
finally settled by the House of Lords, in England, until
1859. And because these decisions have been so recent and
progressive, one would hardly feel at liberty to assume that
any proposition to which they relate has become sufficiently
familiar law to be stated without its accompanying author-
ity. For the same reason, if a point has been raised and
settled or discussed in more than one court, the profession
would have a right to expect that, if a reference is made to
reported cases at all, it should be extended to all that bore
upon the subject they were examining. When to this it is
added that the questions which have come under the cogni-
zance of the courts were many of them so far original in
their character as to require a recourse to analogies and
general principles rather than settled authorities, it will be
seen why the judges, in their opinions, have taken a wider
range of discussion than the particular matters before them,
and why the reasoning and analogies which have been made
use of under one state of facts, have been resorted to for
illustration in their application to others. The same case
may therefore be found a subject of reference, not only
upon different propositions, under different phases, upon
the same subject, but upon different subjects themselves,
as they have come up in the course of the work. Anotlier
reason for collecting and citing, in some instances, many
cases upon a single point, has been the desirableness of
bringing together the related decisions of the courts of the
different States, in order, so far as might be, to work out
something like a homogeneous system of American law
upon a subject of such common interest. If to this is
added the circumstance of the great number of these indi-
vidual cases, which has been spoken of in another connec-
t
Xll PREFACE TO THE FIRST EDITION.
tion, it is hoped that the multiplication of these citations will
be accounted for without supposing it to be the result of
carelessness or a desire of unnecessary display.
Aside from the want of an American treatise upon the
subject of Easements and Servitudes, there is something in
the importance and wide application of the subject itself,
in its practical bearings, which seemed to call for the means
of understanding it more fariiiliarly. The interests with
which it is connected are not only various and multiform,
but they concern the comfort and convenience of men in
their relations to one another, as well as in that of members
of the broader associations of neighborhoods and civil com-
munities. Its laws are found adequate to determine rights
which are too minute to be measured by any scale of value,
at the same time that they embrace within their care inter-
ests as vast as those involved in the business and enterprise
of a whole people. They serve to trace out the footpath
from the cottage to the spring that supplies the daily wants
of its inmates, and to define the line of eaves' drip along the
few inches of soil upon which it falls, at the same time that
they reach and limit the rights and relations of property be-
tween the citizen and the public in the banks and waters of
the broad rivers which form the highways of commerce, and
guide and regulate the application of the elements in min-
istering to the industry and arts which sustain and enrich
a nation.
In carrying out a work designed to embody the elements
of such a system into a practical and convenient form, no
reasonable endeavor has been spared to make it what it was
supposed the profession desired ; but for its success, its
reliance must be upon their indulgence.
Cambridge, February, 1863.
CONTENTS.
CHAPTER I.
OF THE NATURE, CHARACTER, AND MODE OF ACQUIRING EASE-
MENTS AND SERVITUDES.
SECTION I. p^,g3
Nature, Classification, and Qualities of Easements, &c. ... 1
SECTION 11.
Incidents to acquiring Rights of Easement, &c 22
SECTION III.
Of acquiring Easements by Grant 33
SECTION IV.
Of acquiring Easements by User and Prescription .... 98
SECTION V.
Of Easements by Public Prescription and Dedication . . . 170
CHAPTER II.
EASEMENTS AND SERVITUDES OF WAY.
SECTION I.
Ways defined, and how they afiect the Rights of Freehold . 213
SECTION II.
Of Ways of Necessity 218
SECTION HI.
Of Ways created by Grant 224
tl
XIV CONTENTS.
SECTION IV.
How Ways may be used , 240
SECTION V.
Of the Rights of the Land-Owner and Way-Owner, in Land . 252
CHAPTER III.
OF EASEMENTS AND SERVITUDES OF WATER.
SECTION L
Of Property in Streams and Watercourses 264
SECTION IL
Of Rights of Irrigation 294
SECTION in.
Of the Use of Water for Mills 308
SECTION IV.
Of Rights in Artificial Watercourses 366
SECTION V.
Special Laws as to Mills 393
SECTION VL
Of Rights in Rain and Surface Water 427
SECTION VII.
Of Rights in Subterranean Waters 440
SECTION VIIL
Of Rights to Eaves' Drip 468
SECTION IX.
Of Rights of Passage in Public Streams 474
SECTION X.
Of Rights in Water by Custom 488
CONTENTS. XV
SECTION XL
Of Rights of Fishery 491
SECTION XII.
Of Servitudes of Water by the Civil Law, etc 502
CHAPTER lY.
OF EASEMENTS AND SERVITUDES OTHER THAN OF WAY AND
WATER.
SECTION L
Easement of Lateral Support of Land 511
SECTION IL
Easement of Support of Houses 531
SECTION in.
Easement of Party Walls 535
SECTION IV.
Easement of Support of Subjacent Land 558
SECTION V.
Easement of Support of Parts of the same House .... 5G4
SECTION VL
Easements and Servitudes of Light and Air 574
SECTION VIL
Miscellaneous Easements and Servitudes 595
CHAPTER V.
OF LOSS OR EXTINGUISHMENT OF EASEMENTS, ETC.
SECTION L
Effect of the Unity of the two Estates 605
XVI CONTENTS.
SECTION II.
Effect of conveying one of two Estates in reviving former
Easements 612
SECTION III.
Of Changes in Estates affecting Rights of Easement .... 622
SECTION IV.
Of Acts of Owners of Easements affecting Rights to the same 627
SECTION V.
Effect of abandoning an Easement 631
SECTION VI.
Effect of Non-User of Easements 639
SECTION VII.
Effect of an Executed License upon an Easement .... 649
CHAPTER VI.
REPAIES OF EASEMENTS AND REMEDY FOR INJURIES.
SECTION I.
Repairs of Easements 654
SECTION 11.
Remedy at Law for Injuries to Easements 658
SECTION m.
Remedy in Equity for Injuries to Easements 668
SECTION IV.
Remedy by Abatement for Injuries to Easements .... 675
Index 685
TABLE OF CASES CITED.
Abbott V. Mills
175, 185, 186, 189,
209
V. Weekly 7, 14, 116, 117
Ackerman r. Horicon Co. 6 71
Ackroyd w. Smith 10,33,36,118
Acton V. Blundell 12, 440, 443,445
Adam v. Briggs Iron Co. 345
Adams v. Andrews 23
V. Barney 675, 677
V. Emerson 214, 253
V. Harrison 429
V. Pease 479, 502
V. Ross 69
V. Van Alstyne 603
V. Warner 350
Addison v. Hack 650
Albany Street, Matter of 401
Alder v. Savill 146
Aldred's Case 290, 578
Alexander v. Boghel 78, 470
Allan V. Gomme 87, 88, 109, 110,
239, 242, 250, 357, 358, 629
Allen V. Kincaid 222
V. Ormond 625
V. Scott 43
Allis r. Moore 160
Alston V. Grant 41, 81
Alves V. Henderson 211
American River Co. v. Amsden 477
Amick u. Tharp 675,678
Anderson v. Buchanan 219
Andover v. Sutton 416
Andrews v. Hailes 158
Anonymous 90, 475, 493, 568, 577
Anthony v. Lapham 279
Appleton V. FuUerton 248, 254
Arbuckle I'. Ward 127,151
Archer v. Bennett 89
Arkwright v. Gell 368, 471
Arnold v. Connman 622
V. Foote 269, 287, 303, 307,
347,348, 354
V. Mundy 474, 479
V. Stevens 124, 125, 596,
641, 646
Arundell v. M'Culloch 475
Ashby V. White 659
Ashley v. Ashley 127, 291, 378,
381
V. Pease 350
V. Wolcott 267, 268, 269,
270, 439
Atkins u. Bordman 32,40,41,42,
44, 129, 134, 165, 214, 245, 246,
253, 254, 295, 350, 660
Atkins V. Chilson 586
Attorney-General v. Doughty 579
V. Nichol 673
Atwater v. Bodfish 109, 177, 607
Avery v. Stewart 119, 172, 173
B.
Bachelder v. Wakefield 1 24
Back V. Stacy 582, 586, 671
Badeau v. Mead 202
Badger v. Boardman 31, 96
Baer v. Martin 14, 121, 376, 661
Bailey v. Fairfield 198
V. Phlla. B. & W. R. R. 4 74,
479, 482
V. Stephens
Baird v. Hunter
V. Wells
Bakeman v. Talbot
Baker v. Brereman
13, 118, 120
414, 647
409
216, 243, 246,
252, 254
116, 118
V. Lewis 474, 476, 478, 484
XVlll
TABLE OF CASES CITED.
Baker v. Richardson 157, 579
V. St. Paul 188, 189, 196
Baldwin v. Buffalo 212
V. Calkins 144, 316, 349
Ball V. Herbert - 485
Ballard v. Ballard vale Co. 608
V. Butler 636, 655, 665
V. Dyson 109,110,216,225,
243
Ballou V. Hopkinton 672
Balston v. Bensted 452, 462
Bangor v. Lansil 267, 268, 270, 272,
293, 439
Banks v. Am. Tract Society 583, 585
V. Ogden 197
Bannon v. Angier 225, 641
Barclay v. HoweH 186, 187, 189,
195, 201, 2J5
Road y. Ingliam 47 7,478
Bardwell v. Ames 276, 280, 314,
350, 352, 354,482,670
Barker u. Richardson 157,579
Barlow v. Rhodes 49
Barnes v. Haynes 135
V. Ward 516
Barraclough v. Johnson 183, 185
Barrett v. Parsons 340
Barrow v. Richards 22,86,594, 673
Bartlet v. Harlow 38
Bassett v. Company 269, 328, 441,
443
Baten's Case 365, 469, 674, 675
Bates V. Weymouth Iron Co. 398,
407,416
Battishill v. Reed 144
Baune Fishery Case 492, 497
Baxter v. Taylor 157, 663
Bealy v. Shaw 154, 316, 353, 354
Bean v. Coleman 35, 216, 252, 254
Beard v. Murphy 430,439,514,517
Beasley v. Clarke 153
Beatty v. Gregory 24, 596
V. Kurtz 186
Beaudely v. Brook 32, 40
Bedford v. British Museum 673
Beeston v. Weate 376
Beissell v. SchoU 335, 338
Belknap v. Trimble 106, 145, 353,
387
Bell V. Elliott 426
V. Twentyman 658
w. Warden 112,115
Bellinger v. Burying Ground 228
V. N. Y. Cent. R. R. 276,
282
Bellows y. Sackett 290, 429,455,
469, 473
Bemis v. Clark 365, 664, 674
V. Upham 412, 672
Bennett v. Costar 500
Benson v. Soule 149
Bentz V. Armstrong 431, 434
Berry v. Carle 476, 4 79
Bethune v. Turner 486
Betts V. Davenport 125
Bibby V. Carter 520
Bickel V. Polk 485, 491
Biddle v. Ash 105, 487, 590, 673
Bigelow V. Battle 350
V. Newhall 409
Binckes v. Pash 630
Binney's Case 313, 344, 427
Binney v. Hull 601
Bird V. Higginson 23
Bissell i;. N. Y. Cent. R. R. 176,
190, 200, 202
Blackett r, Bradley 121
Blain's Lessee v. Chambers 44
Blake v. Clark 44
V. Everett 129, 153
V. Rich 214, 215
Blanchard v. Baker 277, 280, 287,
298, 326, 334, 338, 350,
358
V. Bridges 90, 156, 578,
630
Bland v. Lipscombe 7, 116, 489
Blewett V. Tregonning 117, 119
Bliss V. Hall 592
V. Rice 129, 146, 334, 344,
345, 352
Blodgett V. Royalton 198,
Blundell v. Catterall 4 75, 482, 485,
486, 490
Blunt V. Aiken 666
Boggs V. Merced Mg. Co. 421
Bolivar Mg. Co. v. Neponset Mg.
Co. 129, 138, 139, 295, 349
Bolt V. Stennett 186
Bonomi v. Backhouse 512, 516,
519, 560, 561, 563, 659, 660
Borden y. Crocker 661,662
V. Vincent 139, 346
Borst V. Empie 12, 27, 44, 350
Boston & R. ]\Iill-Dam v. New-
man 397
Boston W. P. Co. V. B. & W. R. R.
9
Bowen v. Conner 26, 27
V. Team 3, 643
CTABLE OF CASES CITED.
XIX
Bower r. Hill 87, 110, 355
Bowers v. Suffolk Mg. Co. 183, 194,
204
Bowes V. Ravensworth 258
Bowman v. Middleton 401
Boyce v. Brown 257
Boyle V. Tamlyn 601
Boynton v. Rees 345
Brace v. Yale 43, 53, 133, 14 7,311,
314, 318, 335,343
Bradbee v. Christ's Hospital 519,
541
Bradbury v. Grimsel 124, 152, 156
Bradshaw v. Eyre 600
Brady v. Weeks 664
Brainard v. Conn. R. R. R. Co.
232, 670
Brakeley v. Sharp 5, 7, 55, 78, 85
Branch v. Doane 140
Brice v. Randall 121, 218, 222
Bridfies v. Purcell 24, 310
Brigham v. Smith 40, 220
Bright r. Walker 152, 157
Brisbane v. O'Neall 290, 357, 377,
674
Broadbent v. Ramsbotham 269, 270,
347, 436, 438, 449
Brondage v. Warner 542
Brouwer v. Jones 30, 35, 86, 95,
669
Brown's (Lady) Case 387
Brown v. Best 287, 332, 348, 382
V. Bowen 345, 663
i;. Bush 290,311,313
V. Chadbourne 474,477,480
I'. IlHus 462
V. Manning 175
V. Robins 563
V. Scofield 476
V. Stone 225, 248, 254
V. Thissell 28, 32
V. Windsor 519, 535, 548
Bruning v. N. O. Canal 60
Brunton v. Hall 216, 242
Bryan v. Whistler 23, 604
Buddington v. Bradley 308, 326,
349, 358, 360, 384
Buffum w. Harris 12,430,435,437
BuUard v. Harrison 40, 219, 254,
655
BuUen v. Runnels 145, 358
Bullock tJ. Wilson 474, 478
Bulwer's Case 662
Burden v. Stein 266, 274, 671
Burleigh u. Lumbert 417
Burling v. Reed 682
Burlock V. Peck 548
Burnham v. Kempton 106, 146, 353
V. Story 413
Burr U.Mills 27,45,615
Burrows v. Gallup 475
Burwell v. Hobson 84, 327, 328,
672
Bury V. Pope 578
Bush V. Sullivan 596
Bushnell v. Proprietors, &c. 43
Butman v. Hussey 295, 320, 336
Butz V. Ihrie 641
C.
Cady V. Conger 188, 209
Caldwell V. Copeland 100, 121
V. Fulton 14, 663
V. Gale 665
Caledonia R. W. Co. v. Sprat 512,
518, 622
Call V. Buttrick 683
Callaway Co. v. NoUey 196, 212
Campbell v. McCoy 389
V. Mesler 344, 542, 566,
626
V. Race . 254
V. Smith 25, 122,123,266,
27 7, 354
V. Wilson 102, 103, 105
Canal Trustees v. Haven 284
Canham v. Fisk 277, 316, 579, 607
Capers i'. McKee 254, 255, 656
i\ Wilson 223
Carbrey v. Willis 45, 65, 153, 470
Carleton v. Redington 24, 664
Carlin v. Paul 75
Carlyon v. Lovering 110, 355, 378,
598
Carpenter v. Gwynn 181, 183, 189
Can- V. Foster 142, 144, 263, 637
Carrig v. Dee 587
Carson v. Blazer 393. 477, 478, 500,
501
Carter v. Murcot 491, 492, 493
V. Page 54
Carver v. Miller 344
Gary v. Daniels 20, 266, 274, 277,
280, 290, 291, 311, 316, 321,
327, 332, 334, 335, 340, 348,
378, 381, 408, 411, 614
Gates V. Wadlington 476, 501
Cemetery Co. v. Eden 87, 239, 249
Chadwick v. Trower 521, 527, 530
XX
TABLE OF CASES CITED.
Chalk y. McAlily 129,329
Chalker v. Dickinson 165, 492, 495
Chambers v. Furry 485, 486
Chandler v. Howland 321, 335, 340
i;. Thompson 576, 630
Chapin v. Harris 36
Chapman i\ Gordon 202
Charles v. Monson & B. Mg. Co. 416
Charless i;. Rankin 516, 519, 522,
525, 526, 527, 535
Chase v. Sutton Mg. Co. 400, 624
Chasemore v. Richards 101, 443,
446, 462, 463, 466, 467
Chatfield v. Wilson 12, 283, 287,
295, 454, 457
Cheeseborough i>. Green 568
Cherrington v. Abney Mil' 630
Cherry v. Stein 470, 576, 588
Chichester v. Lethbridge 40
Child V. Chappell 180, 189, 190,
191, 192, 202, 228, 663
China v. Southwick 364
Church I'. Burghardt 126, 127
Cincinnati v. White 175, 179, 186,
188, 189, 208, 209,485
Clark V. Cogge 40, 220
V. Ru2ge 218
V. Way 8, 35
Clash V. Martin 95
Clavering's Case 90
Clay V. Thackrah 150, 158
Clayton v. Corby 120
Clement v. Burns 480, 482
V. Durgin 406
V. Youngman 663
Clements v. Lambert 616
V. W. Troy 176,191,192,
202, 203
Cleris V. Tieman 20
Cleveland v. Cleveland 181, 207
Clock V. White 401
Coalter v. Hunter 105, 423
Coburn ex parte 6
Cobb V. Smith 403, 477, 481
. Cocheco Mg. Co. v. Whittier 51
Cocker V. Cowpcr 23, 380
Codling V. Johnson 86
Codmau v. Evans 116, 25.'}
Coe I'. Lake Co. 670
Coggswell V. Lexington 199
Colburn v. Richards 298, 301, 365,
676
Colchester v. Roberts 87, 243, 667
Colo V. Sprowl 188
Coles V. Sims 97
Coll am V. Hocker 23
Collier v. Pierce 587, 589
Collins u. Benbury 476,491,494,
495, 501
u. Prentice 38,40,41,218,
220, 221, 222
Colvin V. Burnet 124, 125, 129,
168, 309
Commissioners v. Taylor 186, 195,
212
Commonwealth v. Alburger 186,
188, 207, 211
V. Chapin 4 74, 478,
492, 502
V. Charlestown 475
V. Essex Co. 400
V. Fisher 416, 478
V. Fisk 181, 188,
189, 200, 205, 208
V. Kelly 202
V. Lovsr 119, 172,
173
V, Newbury 116,
171, 175, 180
V. Rush 191, 201,
209, 211
V. Stevens 416
V. Upton 592
V. Wilson 481
Compton V. Richards 77, 579, 581,
617
Comstock V. Van Deusen 241
Connehan v. Ford 179, 186, 188,
189
Converse v. Ferre 344
Cook V. Hull 301
V. Stearns 23, 380
Cook Co. V. C. B. & Q. R. R. 3
Coolidge j;. Learned 107,116,486
V. Williams 491
Cooper V. Barber 103, 128, 165, 446
V. Hall 296, 330
V. Hubbuck 578
V. Maupin 40, 219
V. Smith 102, 103, 108,
128, 143, 486
Copie's Case 76, 130
Corby V. Hill 210
Corning v. Gould 102, 106, 635,
638, 645
V. Lowerre 671, 672
V. Troy Iron, &c., Co. 150,
277, 284, 285, 319
Cortelyou v. Van Brundt 110, 112,
117, 121, 487, 490, 498
tabl£ of cases cited.
XXI
Cotton V. Poc asset Mg. Co. 144, 417
Coutts V. Gorham ' 77, 581
Cowell V. Thayer 146, 332, 348,
349, 360, 414
Cowles V. Gray 183, 196
V. Kidder 334
Cowling V. Higginson 110, 244, 252
Cox V. Matthews 308, 326, 360,
518, 576, 579
V. State 474, 479, 482
Craigie v. Mellen 173
Grain v. Fox 637
Crittenden v. Field 53, 314, 346,
672
V. Wilson 481
Crittenton v. Alger 266, 274, 291,
378, 381
Cromwell v. Selden 350
Crooker v. Bragg 299, 303
Crosby v. Bessey 129, 140
V. Bradbury 44, 311
Cross V. Lewis 152, 157, 576, 578
Crossley v. Lightowler 65, 277, 279,
291, 300, 640, 644, 646
Grossman v. Vignaud 120, 182
Crounse v. Wemple 88, 125, 259
Cubitt V. Porter 534, 537, 542
Cummings v. Barrett 281
Currier v. Gale 1 60
Curtice v. Thompson 665
Curtis V. Angier 137, 139
V. Francis 608
V. Hoyt 203
V. Jackson 365
u. Keesler 108,111,477,
485
V. Noonan 653
Cuthbert v. Lawton 122, 143
Cutter V. Cambridge 215
D.
Dalrymple v. Mead 478, 484
Dana v. Valentine 142, 592, 674
Dand v. Kingscote 251
Dane v. Valentine 295
Danforth v. Durell 182, 185
Daniel v. North 105, 152, 156, 579
V. Wood 604
Darcy v. Askwith 40
Dare v. Heathcoat 110
Darlington v. Painter 148, 357, 377
Darwin v. Upton 103, 578
Davenport v. Lamson 87, 242
David V. New Orleans 196, 202
V. 2d INIunicipality 203
Davids v. Harris 550
Davies' Case 119
Davies v. Stephens 157, 216
r. Williams 6 76,678
Davis V. Brigham 110, 136, .138,
139, 145
v. Fuller 277,313,326,332,
334, 341
V. Getchell 266, 278, 280,
290, 319, 335, 339
V. Winslow 296,317,335,
336, 339, 416, 475,
* 480, 481
Dawes v. Hawkins 175
Day V. Day 493
V. New York Central Kail-
road 1 8
V. Savadge 7, 112
Dekay v. Darrick 160
Delahoussaye v. Judice 19, 122,
292, 433
Delaney r. Boston 334,361,387,487
Delaware Canal v. Torrey 295
Delaware, &c., 11. R. v. Stump 491,
494
Denning v. Roome 186, 189
Derrickson v. Springer 217
Deshon v. Porter 350, 351
Devonshire v. Eglin 90, 361, 389
Dewey v. Williams 350
De Witt V. Harvey 12, 345, 350
Dexter v. Prov. Aqueduct Co.
452, 463
Dickinson v. Grand June. Ca-
nal 269,276,280,347,439,443,
448, 449, 464
Dickinson v. Worcester 272
Dilling V. Murray 280, 338
Doane v. Badger 254, 255, 344,
357, 566, 655
Dobson V. Blackmore 663
Dodd V. Burchell 15, 41, 64, 76,
130, 220, 614, 619
V. Holme 518, 519, 521, 527,
528
Doe V. Attica 209
V. Butler 643
V. Hilder 645
V. Lock 26
V. Reed 105
V. Wilkinson 126
V. Williams 267
V. Wood 5, 14
xxu
TABLE OF CASES CITED.
Dounell v. Clark 112, 118, 121,
128, 598
Dowling V. Hennings 136, 541, 546,
548
Downey v. Dee 604
Drake i'. Wells 24
Drewell v. Towler 596
Drewett v. Slieard 134, 637
Dubuque v. Maloney 9, 188, 195,
209, 211
Duchess of Norfolk v. Wiseman 8
Dudden v. Guardians of Poor 269,
347, 439, 448
Duncan v. Loiich 625, 654
Dunklee v. Wilton R. R. 44, 77,
130, 613, 615, 620, 638
Dugdale ii. Robertson 560
Durel V. Boisblane 17, 43, 72, 590
Durgin u. Lowell 178,182,204,
205
Durham & S. R. R. v. Walker
26, 258
Dutton V. Taylor 40
Dwinel V. Barnard 183, 487
V. Veazie 487
Dyer v. Depui 123, 365, 646, 647,
676
V. Sanford 23, 26, 28, 627,
63G, 639, 649, 650, 652
E.
Eames v. N. E. Worsted Co. 404
Earle v. De Hart 268, 274, 378,
379, 433, 434, 671
Easter v. L. M. R. Road 86, 603
Eastman v. Company 481, 663, 664,
665
Eaton V. Swansea Waterworks
Co. 154, 155
Eddy V. Simpson 269, 347
Edson V. Munsell 101, 103, 105,
124, 154, 156, 160
EGrremont v. Pulman 658
Elflridge v. Knott 25, 645
Elliot u. Fair Haven R. R. 402
u. Fitchburg R. R. 277,281,
287, 295, 296, 676
Elliott V. Rhett 72, 73, 130, 379,
650, 677
V. Sallee 60, 84
Elliotson V. Fretham 592
Elli.s V. Carey 475, 4 76
V. Duii(;aii 455
Emans v. Turnbull 102,
Embrey v. Owen 276,
296, 299,
Emerson v. Wiley
Ennor v. Barwell
Eno V. Del Vecchio 518,
Esling V. Williams 124,
Estes V. Troy
Evans v. Dana 72, 87,
V. Jayne 539, 550,
V. Merriweather
287, 333,
Evansville v. Page
Everett v. Dockery
Ewart V. Cockrane
116, 257,
393, 597
280, 282,
307, 593
231, 646
283, 437
519, 532,
535, 536
129, 144,
353
174
122, 124
553, 557
276, 280,
335, 347
196
45
58, 64
Farnum v. Blackstone Canal 418,
662
V. Piatt 255
Farrand v. Marshall 512, 516, 520,
525
Farrar v. Cooper 43, 641, 646, 647
Farrington v. Blish 414
Fay V. Prentice 469
Felton V. Simpson 122, 126, 165
Fentiman v. Smith 23, 380
Ferguson v. Witsell 78, 614
Ferris v. Brown 100, 110, 118, 121
Fessenden v. Morrison 357
Fettretch v. Leamy 538
Fifty Associates v. Tudor 586
Fish V. Dodge 665
Fisk V. Huber 20
V. Wilber 350
Fiske V. Framingham Co. 402, 407
Fisher v. Prowse 189, 210
V. Horicon 400
Fitch V. Rawling 114
V. Seymour 406, 416
V. Stevens 414
Flagg V. Worcester 272
Flanagan v. Philadelphia 477, 478,
479, 480, 481
Flight I'. Thomas 129, 578, 592
Foley V. Wyeth 512, 516, 519, 523,
662
Folger V. Worth 1 73
Ford V. Lacy 393, 475
V. Whitlock 334,361, 380,389
TABLE OF CASES CITED.
XXUl
Fralloy v. Waters 655
Frankuni o. Falmouth 308, 326
Frasier (). Brown 431,441, 448,4()7
Freer v. Stotenbur 597
French v. Braintree Mg. Co. 32,
408, 414, 415, 417,
641, 646, 647
V. Camp 4 79
V. Carhart 615,619
V. Hayes 225
V. Marstin 87, 242, 243
V. Owen 24
Frewen v. Philipps 152
Frey v. Witman 385
Foot V. N. H. & N. Co. 24
Foster v. Browning 6, 24
Prowler V. Dale 117
Fox V. Hart 215, 640
Foxhall V. Venables 117
Fuhr V. Dean 23
Funkhouser v. Langkopf 599
G.
Gage V. Pitts 148, 258
Gannon v. Horgadon 271, 430
Gardiner v. Tisdale 115, 179, 186,
215
Gardners. Newburgh 266,276,280,
481, 671
Garland v. Hodsdon 351
Garrett i'. Bailey 426
V. Jackson 129, 130
V. M'Kie 329
Garrison t). Rudd 10,33,36,217
Garritt v. Sharp 629
Gates V. Blincoe 6 70
Gate ward's Case 7,112,117
Gavit V. Chambers 474, 478, 479,
482
Gay V. Baker 604
Gayetty v. Bethnne 25, 40, 42, 50,
106, 110, 123, 124, 134,
165, 220, 221, 222,223,
607, 622, 623
Gayford v. Nichols 518
Gentleman v. Soule 122, 124, 148
173, 180, 191
Gerber v. Grabel 590
Gerenger v. Summers 142, 144
Gerrard v. Cooke 254, 257, 654,
655
Gen-ish v. Brown 416,4 75,480,481
Gibert v. Peteler 28, 35, 80, 95,669
Gibson v. Brockway 44
V. Durham 132
Gile V. Stevens 404, 413
Gillett V. Johnson 269, 283, 303
Gillis V. Nelson 655, 657
Gilman v. Tilton 123, 334
Glave V. Harding 35, 64, 72, 81,618
Gleason v. Tuttle 133, 418
Gloucester, 1st Parish of, v. Beach
128, 138
Goddard v. Dakin 83
Godfreys. Alton 180, 186, 197,478,
484
Golding V. "Williams 110, 124, 127,
132
Goodale v. Tuttle 431, 433, 439,
442
Goodman v. Gore 592
Goodrich v. Burbank 11, 13, 598
Goodtitle v. Alker 215
Gough V. Bell 480
Gould V. Boston Duck Co. 266, 280,
281, 311, 314, 318,325, 326,
333, 335, 340, 410
V. Glass 189
V. James 493, 494
Gowen v. Phila. Exch. Co. 178,
184, 185, 189, 207
Graihle v. Hown 550
Grant v. Chase 6, 32, 33, 49, 50,
220, 585, 607, 613
V. Davenport 196, 482
V. Lvman 295
Graver v. ShoU 295, 330
Graves v. Amoskeag Co. 39
V. Berdan 569
Gray's Case 36
Gray v. Bartlett 596
r. Bond 153
Greasly v. Codling 660
Great Falls Co. v. Worster 38, 675
Greatrex v. Hay ward 368, 373
Green v. Canaan 173, 182, 197, 202
V. Chelsea 118,119,123,172,
179, 180, 189, 214, 253
V. Creighton 18, 35, 95
V. Putnam 601
Greenleaf r. Francis 451, 458, 463
Greenslade i'. Halliday 676
Griffin V. Foster 122, 123
Grimstead v. Marlowe 7, 8, 14, 111,
114, 117, 489
Grubb V. Bayard 14
V. Guildford 30
Guernsey v. Rodbridges 167
XXIV
TABLE OF CASES CITED.
Gurney t;. Ford 204,595,6 72
Guthrie v. New Haven 197
Guy V. Brown 615
Gwinneth v. Thompson 344
H.
Haas V. Choussard 122, 280, 330
Haight V. Price 123, 283
Haines v. Roberts 561
Haldeman v. Bruckhardt 442, 456,
467
Hale V. Oldroyd 357, 634
Hall V. Chaffer 24
V. Lacy 310
V. Lund 58, 64
V. M'Leod 106, 108, 124, 132,
169, 176, 184, 220
V. Swift 387, 637, 646
Hamilton v. White 138, 262
Hammond v. Fuller 671
V. Hall 449
V. Zehner 129, 133
Hancock v. Wentworth 9, 214,607,
622, 625, 660
Harback v. Boston 9, 214
Harbridge v. Warwick 131, 578
Harding r. Wilson 225, 230, 246
Hardy i^. Hollyday 117, 119
Harlow v. Rogers 215
Harper i". Parish 124
Harrington v. Edwards 477, 481,
484
Harris v. Elliott 32, 214
V. Ryding 518, 560, 565
Hart V. Baldwin 519, 535, 541
V. Conner 224
V. Evans 274
V. Vose 124, 309
Hartshorn v. South Reading 232,
661, 670
Hartzall v. Sill 326, 337
JLirvard College v. Stearns 232
Harvie v. Rogers 643
Harwood v. Benton 45, 72, 454,
460
Hastings v. Livermore 129, 295,
025, 662, 663
Hatch V. Dwight 320, 408, 646
Hafhorn v. Stinson 42,45,405,417
Hiiverstick v. Sipe 589
Hawkins ii. Carl)ines 241
lh\y V. Cohocs Co. 516, 519
Hayden v. Attleborough 204
Hayes v. Richardson 28
V. Waldron 280, 281, 336,
356
Haynes v. Burlington 288, 290, 055
V. Thomas 187, 188
Hays V. Hays 429
Hazard v. Robinson 85, 106, 382,
383, 607, 611, 614
Hazen v. Essex Co. 290, 398, 410
Hazleton v. Putnam 24
Heath v. Ricker 601
V. Williams 326, 332, 338,
365, 070
Hebert v. Hudson 433
V. Lavalle 599
Hemphill v. Boston 185
Hendrick v. Cook 200, 280, 281,
295, 327, 329, 338, 355
Hendricks v. Johnson 277, 335, 421,
424,426
Henning v. Burnet 240, 242, 251
Henn's Case 255
Hetrick v. Deachler 307, 337
Hewlins v. Shippam 2, 0, 23, 380,
049
Heyward v. Mayor of N. Y. 402
Hide u. Thornborouuli 513,518,
519, 529, 532
Highara v. Rabett 244, 668
mWv. Crosby 123, 149
V. Lord 4, 13, 110, 117, 118,
597
V. Savles 413, 672
V. Ward 334
Hillary v. Walker 644
Hills V. Miller 7, 22, 30, 41, 86, 591,
595, 672
Hilton V. Granville 120, 121
V. Whitehead 563
Hinchcliffe v. Kinnoul 40, 42, 79,
010
Hinckley v. Hastings 179
Hobbs V. Lowell 179, 186, 190, 204,
210
Hobson V. Todd 129
Hodges V. Hodges 414
V. Raymond 305, 408, 070
Hodgkinson v. Ennor 288, 442, 402
Hoffman v. Savage 0, 640
V. Stowe 380
Hogg V.Gill 132
Holcroft V. Heel 102, 104
Holdanc v. Trustees 176, 192, 200,
206
Hole V. Barlow 593
TABLE OF CASES CITED.
XXV
Holford V. Bailey 501
V. Hanklnson 631
Holland v. Lono; 150,151,158
Hollenbeck v. Kowley 214, 253
Holmes v. Buckley 655
V. Drew 416
V. Goring 221
V. Jersey City 203
V. Seely 121, 221,223, 254,
255, 256
V. Seller 28
Holsman v. Boiling Spring Co. 109,
277, 279, 361, 671
Honsee v. Hammond 281, 356
Hook V. Smith 424
Hooker v. Cummings 474, 478, 492.
502
Hooksett V. Amoskeag Co. 481
Hoole V. Attorney-General 189
Home V. Widlake 260
Hoskins v. Robins 120
Houston V. Saffee 389
Howard y. O'Neill 124
Howe V. Alger 226, 229
Howell V. King 87, 237, 242
V. M'Coy 52, 280, 281, 290,
296
Howland v. Vincent 516
Howton V. Frearson 40, 218, 221
Hoy V. Sterrett 326, 337, 466, 589
Hubbell V. AVarren 93, 669
Huber v. Gazley 188
Hull V. Fuller 52
Hull, Mayor of, v. Horner 100, 105,
106, 168
Hulme V. Shreve 295
Humes v. Mayor 519
V. Shugart 423
Humphries v. Brogden 120, 446,
512, 516, 518, 519,522,
533, 535, 560,565,569
Hunt V. Peake 512, 516, 518, 521,
522, 672
V. Whitney 415, 647
Hunter v. Matthews 423
V. Trustees of Sandy
Hill 175, 186, 190, 209
Hurd V. Curtis 13, 70, 350, 384,
646, 647
Hurlburt v. Leonard 140, 309, 354
Hutchinson v. Copestake 630
Huttemeier v. Albro 57, 64, 75
Hutto V. Tindall 189
Hyde v. Jamaica 199, 220
Hynds v. Shultz 146
I.
Imlay v. Union B. R. R. 402
Indianapolis v. Croas 187
Ingles V. Bringhurst 557
Ingram v. Dunnell 674
Ingraham v. Hough 104, 124, 129,
144, 152, 155
V. Hutchinson 287, 326,
353, 354, 355, 467, 588
V. Threadgill 477, 492,
501
Ipswich V. Browne 498
Jackson v. Halstead 267, 497
V. Harrington 332
V. Hathaway 32, 214
V. Keeling 502
V. Rounseville 604
V. Staccy 244
V. Vermilyea 44, 311
Jamaica Pond v. Chandler 37, 39,
217
James v. Hay ward 676
V. Plant 50, 83, 607, 616
Jamison v. McCredy 87, 237
Jarvis v. Dean 190
Jeffries v. Williams 520
Jennings i;. Tisbury 177,178,204
Jennison v. Walker 215, 225, 641
Jerman v. Matthews 214
Jeter v. Mann 123, 132
Jewell V. Gardiner 408, 676
Jewett V. Jewett 641, 646
Johns V. Stevens 282, 287, 288,
333, 335, 348, 353
Johnson v. Atlantic 288
V. Jordan 45, 66, 78, 83,
277, 291, 382, 587, 619
V. Kinnicutt 247
V. Kittredge 413
V. Lewis 360, 664
V. Rand 350, 358
Johnston v. Roane 425
Joliet V. Verby 199
Jones V. Crow 356
V. Percival 115, 121, 215,
225, 241, 596, 655
V. Powell 592, 593, 676
V. Robin 112
V. Tapling 628, 629, 630, 631
V.Williams 678,683
XXVI
TABLE OF CASES CITED.
Jordan v. At wood 218, G15
V. Woodward 398, 416
Judd V. Wells 336, 413
K.
Kaler v. Beaman 243, 350
Karmuller v. Krotz 5, 27, 32
Kauflfman v. Griesemer 268, 288,
292, 310, 332, 357, 377,
378, 429, 432
Kelly V. Natoma Water Co. 325,
410, 412
Kennedy v. Jones 175
Kent V. Waite 32, 119, 139, 149,
490
Kenyon v. Nichols 23, 72
Kepley v. Taylor 426
Kerr v. Kerr 1 7
Ketaltas v. Penfold 543
Kido;ill v. Moore 663
Kieffer v. Irahoff 5, 57, 607
Kllburn v. Adams 124, 131, 137,
150
Kilgour V. Ashcom 84
Kimball v. Cocheco R. R. Co.
40, 218, 220
V. Gearhart 412
V. Kenosha 187
King t). M'Cully 670
V. Northampton 185
V. St. Benedict 210
V. Shufford 425
V. Tiffany 123, 320, 332, 341,
348, 359
Kirkham v. Sharp 87, 237
Knight V. Halsey 107
V. Heaton 184, 211, 215
V. Wilder 478
V. Woore • 243, 244, 668
Knox V. Chaloner 416, 477, 460
Kooystra v. Lucas 42, 49
Lacy V. Arnett 24, 146, 389
Lade y. Shepherd 178,187,214,
253
Ladv Browne's Case 387
Lanib v. Crossland 102, 151, 159,
167, 168
Latnjiman v. Milks 17, 43, 52, 70,
77, 386, 590
Lane v. Carpenter 144
Langford v. Owsley 365
Langley v. Gallipolis 201
Lansing v. Wiswall 33
Lapham v. Curtis 353, 362
La Plaisance Bay Harbor Co.
V. Monroe 4 74, 479
Larnian v. Benson 476, 479, 482,
484
Larned v. Lamed 175, 260
Lasala v. Holbrook 78, 512, 516,
519
Lattimore v. Davis 332, 429, 433
Lavillebeuvre v. Cosgrove 21, 88,
649
Laumier v. Francis 9, 19, 290, 429
Lawler v. Wells 480
Lawrence v. Obee 636
Lawton v. Rivers 32, 40, 123, 132,
148, 218, 219, 221
r, Tison 175,176
V. Ward 87, 237, 242
Lay V. King 491
Leavitt v. Towle 39, 46
Ledyard v. Ten Eyck 208
Lee V. Stevenson 386
Le Fevre v. Le Fevre 392
Leonard i'. Leonard 26, 40, 59, 65,
149, 220, 255, 615
V. White 39
Lethbrldge v. Winter 181
Lewis V. Carstairs 33, 87, 239
V. Keeling 482, 485
V. Price 578
V. Stein 671
Lewiston v. Proctor 172
Lifbrd's Case 39, 655, 656
Liggins V. Inge 275, 627, 639, 647,
650
Light V. Goddard 98
Lisle's Lessee v. Harding 126
Littlefield D. Maxwell 117
Livett V. Wilson 102, 103, 105, 156
Livingston v. Mayor of N. Y. 1 95
V. Ten Broeck 598, 600
Lockwood V. Wood 7, 111, 113
Logansport v. Dunn 202
Loring v. Bacon 344, 568, 572
Lonsdale Co. v. Moies 12
Lovell V. Smith 260, 634
Luce V. Carley 124
Luther v. Winnisimmet Co. 268,
271, 439
Luttrel's Case 110, 268, 357, 358,
383, 629
TABLE OF CASES CITED.
XXVll
Lyman v. Arnold
35, 39, 214, 215,
217, 248, 254
M.
Liable V. Mattcson 10, 20, 337,
Maddox v. Goddard
Maerls v. Bicknell
Magor V. Chadwick 290, 370,
Mahan v. Brown 576,
Manier v. Myers
Mann v. Stephens
Manning v. Smith 607,
V. Wasdale 115, 118,
Marcly v. Shultz
Marshall v. Trumbull 38, 218,
Martin v. Bigelow
V. Goble
V. Jett 19, 288, 292,
V. Patin
V. Riddle 288, 290,
Mason lu Caesar
V. Hill 275, 277, 281,
299, 308, 324, 332,
Massey v. Goyder 517, 519,
Matts V. Hawkins
Maxwell v. E. R. Bank
V. M'Atee 35, 214,
252,
Maynard v. Esher
Mayor, &c. v. Eslava
M'Afee v. Kennedy
M'Calmont v. Whitaker 311,
M'Carty v. Kitchenman 55, 57
M'Connell v. Lexington 186,
M'Coy V. Danley 277, 327,
M'Cready v. Thomson 110,
M' Donald v. Bear River Co.
V. Lindall 216, 219,
M'Dougle V. Clark
M'Farland v. Stone
M'Farlin v. Essex Co. 149,
496, 499,
M'Gregor v. Waite 36, 152,
M' Quire v. Grant 512, 516,
M'llvaine v. Marshall
M'Kee v. Garrett
M'Keen v. Delaware Division,
&e.
339
44
412
3 74
583
122
97
616
308,
489
146
222
318
582
332,
433
219
429
676
290,
354
535
537
86
216,
254
589
478
425
333
,64,
72
485
328
588
629
223,
623
426
160
492,
501
156,
157
518,
519
362
132
479
M'Kellip V. McTlhcnny 389
M' Kinney v. Smith 323, 412, 413
M'Manus v. Carmichael 476, 478,
482
M'Tavish V. Carroll 44, 45, 55
Mebane v. Patrick 124, 126, 131,
132, 156, 157,160, 162,168
Medford v. Pratt 124, 601
Mellen v. Western R. R. 290
Mellor V. Spateman 114, 660
Melvin v. Lock 102
V. Whiting 149, 151, 156,
159, 167, 491, 495, 497,
499, 501
Mendell v. Delano 27, 38, 627
Mercer v. Pittsburg 187, 194
Merritt v. Brinkerhoff 326, 338
V. Parker 280, 331, 358,
360, 365, 677
Mersey & Irwell Nav. Co. v.
Douglass 661
Mcrtz V. Dorney 147
Metropolitan Asso., &c. v. Petch
663
Middleton v. Gregorie 23, 309, 354,
390
V. Pritchard 480
Miller v. Auburn & S. R. R. 23
V. Bristol 254, 361, 655
V. Ewing 69
V. Garlock 122, 124, 129,
646
V. Laubach 288, 292, 429,
430
V. Miller 214, 302, 307, 344
Miner v. Gilmore 289, 344
Minor v. Wright 433
Missouri Inst., &c. v. How 188, 190
Moale V. Mayor, &c., of Baltimore
229
Moffett V. Brewer 676, 678
Monmouth Canal v. Harford 127,
140
Monongahela Bridge v. Kirk 478
Nav. Co. u. Coon 327,
488
Monroe ik Gates
Moor V. Veazie
Moore v. Fletcher
V. Rawson
V. Webb
V. Wright
Morgan v. King
V. Mason
344
477
44, 311
576, 578, 634,
636, 649
355, 361
401
476, 477, 482
32, 48, 60
XXVIU
TABLE OF CASES CITED.
Morgan v. Moore 9, 214, 663
V. Reading 474, 478, 480,
. 482
Morris v. Commander 144
V. Edgington 49, 219, 221,
223, 235
Morse v. Copeland 23, 25, 650
V. Stocker 181, 204, 206
Moulton V. Libbey 491, 502
Mounsey y. Ismay 115
Mowry i'. Sheldon 421, 647, 648
Mumford v. Brown 344
V. Whitney 23, 380
Munroe v. Stickney 295
Munson v. Hungeiiford 477
Murdock v. Stickney 398, 404, 408,
416
Murgatroyd v. Robinson 129, 348,
355
Murley v. M'Dermott 537, 540,548
Muskett V. Hill 13, 118
Mussey v. Prop. Union Wharf, 624
Myers v. Gemmel 584
N.
N. Albany R. R. v. Peterson, 451,
457
Napier v Bulwinkle 512, 530, 534,
588, 589
Nash V. Peden 132, 138, 173, 661
National Manure Co. v. Donald 623
Nelson v. Butterfield 133, 405, 407,
417
Newcomb v. Smith 400
Newell V. Hill 603
Newhall V. Ireson 295, 336
New Ipswich Co. v. Batchelder 70,
77, 83, 382
New Orleans v. U. S. 186, 188,207
New River Co. v. Johnson 443, 445,
447, 464
Nichols V. Avlor 105, 154, 168, 423
y. Liice 23,40,41,83,
218, 221, 223
Nicholas v. Chamberlain 45, 63, 70,
77, 83, 386, 611, 614, 615
Nicklin V. Williams 561, 659
Nitzell V. l'a.si'hall 641, 646
Norris v. Baker 676
North Eastern R. R. v. Elliott
368, 512, 516, 518,
522, 564
Nortliam v. Hurley 387, 659
Norton v. Volentine 334, 354, 361,
368, 389, 664
Noyes v. Ward 203, 208
Nudd y. Hobbs 112,117,118,171
Nuttall V. Branwell 385
N. Y. Life Ins. & Tr. Co. v. Mil-
nor 218, 221
O.
Oakley v. Adamson 42
V. Stanley 43
O'Fallon r. Daggett 474,478,479,
480, 483, 507
Ogden V. Grove 220
Okeson v. Patterson 123, 149
O'Linda j;. Lothrop 214, 226, 253,
596
Olmstead i\ Loomis 350
Olney y. Fenner 106, 129
V. Gardner 124, 131, 143,
150
Omelvany v. Jaggers 287, 320, 329
Orford, Mayor of, v. Richard-
son 493
Orleans Navigation Co. v. May-
or of N. O. 14, 19, 23, 33, 292,
429, 433
Orman v. Day 544
Ortman v. Dixon 322, 413
Osborn v. Wise 79, 225, 231, 254,
655
Oswald V. Grenet 208
V. Legh 105
Oswego V. Oswego Canal 191, 202
Otis V. Hall 389
Overton v. Sawyer 288
P.
Packer v. Welsted 40, 607
Paige V. Weathersfield 198
Pain u. Patrick 116,118,596
Paine v. Boston 587
Palins V. Heblethwait 383
Palmer Co. v. Ferrill 404
Palmer v. Fleshees 518
i;. Fletcher 77, 518, 578, 579
y. Mulligan 317,478
V. Wetmore 585
Panton v. Holland 317, 461, 516,
519, 527
Parker v. Boston & ^1. R. R. 457,
459
TABLE OF CASES CITED.
XXIX
Parker v. Cutler Mill-Dam Co.
491, 501
V. Foote 103,106,107,108,
122, 124, 129, 168, 277,
295, 576, 578, 583
V. Framingham 131, 156,
226
V. Griswold 295, 296, 297
V. Hotchkiss 281, 335, 336,
354
V. Nightingale 30, 31, 35,
91, 96, 591, 669
V. Smith 226, 582
Parks V. Newburyport 270, 439
Partridge v. Gilbert 532, 534, 535,
542, 544, 547, 626
V. Scott 513, 519, 522,
525, 532, 563
Patten v. Harden 336, 339
Patterson v. Arthurs 70
Pawlet V. Clark 175, 185, 186
Payne v. Shedden 263
Peables v. Hannaford 501
Pearce v. M'Clenaghan 607
Pearsall v. Post HO, 115, 116, 117,
152, 158, 179, 485, 487, 490
Pearson v. Spencer 40, 41, 59, 71,
223, 619
Peck V. Bailey 510
V. Day 642
V. Smith 475
Penn. R. R. v. Jones 55, 57
Penruddock's Case 664, 675, 677,
683
People V. Beaubien 202
V. Canal Comrs. 478, 480
V. Cunningham 481
V. Jackson 206
V. Jones 199, 202
V. Law 402
V. Piatt 476, 478
V. St. Louis 474, 478, 482
V. TIbbetts 475
Perkins v. Dow 283, 298
V. Dunham 633, 646
V. Perkins 598
Perley v. Chandler 214, 253, 255
V. Langley 11, 111, 116,
117, 118, 119
Pernam v. Wead 221
Perrin v. Garfield 3, 43, 53, 125,
129, 133, 147, 149, 152, 343
Perry t;. Fitzhowe 675,676,678
V. Worcester 290
Peter v. Daniel 117, 357, 654, 656
Pettee v. Hawcs 45, 314
Pettingell v. Porter 55
Peyton V. Mayor 517,526,534
Pheysey v. Vlcary 17, 70, 81, 220,
386
Phillips V. Boardman 54 9
V. Bowers 25 7
V. Phillips 57, 125, 615
V. Rhodes 597
Pickard v. Collins 576
Pickering v. Stapler 32
Pickett V. Condon 665
Pierce v. Cloud 124, 130
V. Sellech 40, 137, 221
Pierre v. Fernald 122, 156, 587
Pillsbury v. Moore 106, 646, 664
Piggott V. Stratton 97, 579
Pinnington v. Galland 40, 222, 223
Pitkin V. Long Island R. R. 14, 18,
23
Pitts V. Lancaster Mills 339, 343
Pixley V. Clark 364
Plant V. James 42, 49, 225
Plasterers' Co. v. Parish Clerks'
Co. 578
Piatt V. Johnson 280
V. Root 307,317
Plitt V. Cox 75
Plumer t\ Brown 151
V. Harper 664
Plumleigh v. Dawson 266, 277, 284,
295, 312
Polden t'. Bastard 17,41,51,59,
64, 506
Pollard V. Barnes 140, 141, 595
Polly V. Mc Call 122,124,128,129,
140
Pomeroy v. Mills 179, 209, 214,
253
Pomfret v. Ricroft 40, 613, 654
Poole V. Huskinson 183, 185
Pope r. Devereux 176,258,634,
637
Porter v. Allen 4 78
Portmore v. Bunn 37
Post y. Pearsall 8,11,115,117,
118, 186, 189, 190, 478
Potter ?;. North 110
Powell V. Bajiji 155
V. Thomas 90
Pratt V. Brown 400
V. Lamson 136, 275, 284, 285,
344, 350, 393
Preble v. Reed 45, 615
Prescott 17. Phillips 123, 644
XXX
TABLE OF CASES CITED.
Prescott V. White 31,
290, 357,
Rex V. Cremden
490
377
654, 676
V. Cross
592
V. Williams 31,
290, 291,
V. Hudson
178
310, 357, 378,
655, 676
V. Pappineau
676
Price V. McConnell
538
V. Rose well
675
676
Prickman v. Tripp
449
V. Smith
475,
476
Prince v. Wilbourn
132
V. Trafford
328
Pringle v. AVernham
582
Reynolds v. Clark
471
Pritchard v. Atkinson
104, 189
V. M' Arthur
267
Private Road, Case of 33, 36, 87,
Rhea v. Forsyth 190, 192,
C70,
675
217
Rhodes ii. McCormick
463,
565
Proctor V. Hodgson
218
V. Otis 475, 476,
477,
480
V. Lewiston
181, 183
Rice V. Ruddiman
479
482
Proprietors, &c. v. Nashua R. R.
Richards v. Dutch Church
604
288
V. Rose 56, 63,
518,
532,
Proud V. Mollis
243
546
Providence Gas Co. v. Thurber 601
Richardson v. Pond
596,
672
Pue V. Pue
129
V. Vt. Cent. R
. R.
516,
Pugh y. Wheeler 277,281,
287, 288,
518, 519,
523,
527
296, 307, 325, 334,
335, 353
Richart v. Scott
519,
521
Pyer v. Carter 41, 62, 78
, 81, 130,
Rickard v. Williams 103,
123,
129
386, 618
Rider v. Smith
655
Ripka V. Sergeant 282,
329,
330
Q.
Ritger v. Parker 4, 32
Rives V. Dudley
165
607
201
Quimby v. Vt. Cent. R. R
214
Riviere v. Bowers
7 7,
580
Roath V. DriscoU 452,
460
464
Bobbins v. Jones 189,
210,
655
R.
Robins v. Barnes 77, 387,
579,
607,
582,
614
Race V.Ward 7,116
275, 625
V. Borman
214
V. Wood
489
Roberts o. Haines
560
Rackley v. Sprague
42, 45
V. Karr 181,
225
228
Radcliff 's Exrs. v. Mayor,
&c. 445,
Robeson v. Pittenger
590,
673
455, 516, 519,
520, 584
Rochdale Canal v. Radcliffe
110,
Ragan v. M'Coy
188
113
Raikes v. Townsend
675
Rogers v. Bancroft
350,
352
Randall v. McLaughlin
65, 71
V. Brenton
112
Rankin v. Iluskisson
97
V. Bruce
359,
366
Rawlyn's Case
90
V. Page
122,
354
Rawstron v. Taylor 269
270, 276
V. Sawin
587
347, 439
V. Taylor 513,
522,
563
Ray V. Fletcher 146,
332,417
Rood V. Johnson
350
V. Lynes
576, 590
Rooker v. Perkins
25,
404
Rector V. Ilartt
195, 207
Rose V. Bunn 119,172,
598,
604
Regiua V. Chorley 623,
637, 646
Rosewell v. Pryor 579,
585,
665
V. Cluworth
485
Ross V. Horsey
362
V. Dukiiifield
197
Rotheram v. Green
600
V. J'ratt
243
Roundtree v. Brantley
129,
295
Rcid V. (iid'onl
671
Rowan v. Portland 185,
186,
188,
Ri^ignolds V. Edwards
260
194, 201,
202,
211
Reimcr v. Stubcr 132,
156, 15 7,
Rowbotham v. Wilson 3
, 6, 9
, 90,
160, 163
120, 277, 512,
516,
522,
Renshaw v. Bean 576,
578, 630
558, 560, 561,
562,
563,
Rerick v. Kern
24, 389
578,
592,
598
TABLE OF CASES CITED.
XXXI
Rowe V. Addison 288
V. Granite Bridge 475
Rowland u. Wolfe 132
Rugby Charity v. Merryweather,
178, 181, 190
Runcorn v. Doe 157
Rundle v. Delaware, &c. Canal 662
Runnels v. Bullen
Russell V. Harford
V. Jackson
I'. Scott
Rust V. Low
Rutland v. Bowler
43, 338, 344
60
221, 223
33,48,311
104, GOl, 604
326
336
346
426
401
118
238
664
683
414
380
277,
295,
Sackrider v. Beers
Sadler v. Langham
Sale V. Pratt
Salisbury v. Andrews
Salmon v. Bensley
Sampson v. Bradford
V. Burnside
V. Hoddinott
296, 300, 307, 375
Sanborn v. Chicago, &c. R. R. 196
Sargent v. Ballard 102, 122, 124,
149, 154, 168,596
V. Gntterson 118
Saunders v. Newman 332, 358, 382
Schenley v. Commonwealth 156,
157, 180, 189
Scott y. State 179,180,186,188,
189
V.Wilson 479
Screven v. Gregorie 219
Schurmeier v. St. P. & Pac. R. R.
186, 196, 284, 475, 478
Schuylkill Nav. Co. v. Stoever 240
Seabrook v. King 220
Seavey v. Jones 44
Seeley v. Bishop 40, 221
Seibert v. Levan 45, 613, 614
Seidensparger v. Spear 133, 405,
417
Selby V. Robin?on 116
Selden v. Del. & H. Canal 23, 24,
281
Senhouse v. Christian 11, 31, 241,
257
Seymour v. Carter 406
u. Courtenay 495,497,499
V. Lewis 21,46,59,70,84,
220, 386
Seymour v. M'Donald
Shackleford v. CoiTey
Shadwell v. Hutchinson
Sharp V. Hancock
Shaw V. Crawford 189,
V. Etheridge 58, 83,
V. Wells 404,
Shears v. Wood
Shed V. Leslie
Sheldon v. Rockwell
Shepherd v. Watson
Sherman v. Tobey
Sherred v. Cisco 537, 5a0, 544,
Sherwood v. Burr 25, 122, 326,
Shields v. Arndt 268, 439, 648,
Short V. Taylor 90, 392,
V. Woodward
Shreve v. Voorhees 277, 280,
325, 326, 330, 348,
Shrieve v. Stokes 519, 521,
527,
Shroder v. Brenneman
Sibley v. Ellis
Simpson v. Justice
V. Seavey
Sims V. Davis
Skeen v. Lynch 183,
Slack V. Lyon
Slingsby v. Barnard
Slowman v. West 121,
Smart v. Morton 560,
Smiles v. Hastings 220, 223,
Smith V. Adams 287, 452,
V. Agawam Canal 321,
334,
V. Connely
V. Elliott
V. Gatewood 7, 111,
V. Goulding
V. Hardesty
V. Higbee
V. Kemp
V. Kenrick
V. Kinard
V. Ladd
V. Lee
V. Miller
27, 32,
495, 497,
446,450,
522,
40, 118, 119,
132,
27,
105, 110, 125,
V. Olmstead
V. Porter
V. Rome
217,
95
426
663
628
478
614
407
335
351
671
225
428
550,
G25
353
674
671
406
296,'
353
522,
541
242
102
672
360
132
188
414
516
666
565
227,
641
463
327,
364
424
666
116
406
523
137
501
518,
575
121,
172
216
258
153,
156
426
46
254
XXXll
TABLE OF CASES CITED.
Smith V. Ross
146
V. State
189
Snow V. Cowles
664
V. Parsons
335, 336, 355
Snowden v. Wilas 24, 310
Society, &c. v. Morris Canal Co. 280
Solomon V. Vintners' Co. 153, 154,
512, 518, 531, 533
Somerset v. Fogwell 23, 495, 497
Soule t'. Russell 291, 362
Sowers V. ShifF 19
Spear y. Bicknell 172
Sprague v. Worcester 290, 481
Spring V. Russell 479
Springfield v. Harris 319, 335, 337,
339
Squire v. Campbell 234, 579
Stacey v. Miller 183
Stackpole v. CuHis 43, 53, 145,
311
Stafford v. Coyney 181, 183, 184
Stansell v. Jollard 519, 522, 532
Staple V. Heydon 32, 40, 42, 50, 86,
121,*165, 215, 219, 221, 225
V, Spring 663
Star V. Rookesby 601
State V. Atherton 180, 190, 191
V. Campton 189
V. Catlin 209
V. Gilmanton 268, 476
V. Hunter 173
u. Jefcoat 217
?;. Marble 173,189
r. Mc Daniel 120,174
V. Northumberland 254
V. Nudd 189
V. Pettis 252
V. Trask 188, 189, 200, 208
V. Wilkinson 175, 186, 209
V. Wilson 115
Stearns v. Mullen 46
Stedman v. Southbridge 172
Steffy V. Carpenter 129
Stein V. Burden 122, 144, 266, 274,
287, 289, 295, 334
Stetson V. Howland 438
Stephens v. Benson 24
Stevens v. Stevens 670, 674
V. Taft 103
Stiles V. Hooker 346
Stillman v. White Rock Co. 136,
154, 662
Stokes V. Appomato.\ Co. 1 24
Stockoe V. Singers 20, 277, 578,
633, 637
Stockport Water Works v. Pot-
ter 594
Stockwell V. Hunter 572
Stone V. Jackson 205
Story V. Odin 77, 585, 590
Stout V. M' Adams 331
Stowell V. Flagg 397
Strayan v. Knowles 563
Street, Mercer, Matter of 229
17th, Matter of 195, 2l4
29th, Matter of 195
32d, Matter of 195
39th, Matter of 195
Strickler v. Todd 42, 104, 106, 110
Strout V. Millbridge 328
Stuart V. Clark 476
Stuyvesant v. Woodruff 123
Suffield v. Brown 17,22,41,45,62
Sumner v. Foster 366
V. Stevens 127
V. Tileston 126, 326, 408
Sury V. Pigott 63, 276, 382, 386,
387, 463,578, 601, 607, 611,
613, 614
Sutton V. Clarke 661
Swansborough v. Coventry 43, 77,
579, 580
Swartz V. Swartz 44
Symmes v. Drew 6
Tabor v. Bradley 39, 71
Talbot V. Hudson 400
Tallmadge v. E. River Bank 94,
184, 209, 669
Tarrant v. Terry 90
Tate V. Ohio 187
Taylor v. Hampton 634, 638
V. Porter 401
V. Townsend 221
V. Whitehead 254, 255, 564
Tenant v. Gold win 42, 45, 567,
573, 579
Thacher v. Dartmouth 481
Thayer v. Arnold 601
V. Payne 41, 66, 78
Thomas v. Brackney 281, 282,
326, 336
V. Hill 638
V. Lovell 13
V. Marshfield 110, 122,
124, 128, 138, 598
V. Thomas 469, 4 71, 607,
631
TABLE OF CASES CITED.
XXXIU
Thompson v. Banks 39, 44
V. Crocker 296, 330,
363, 661, 662
V. Gibson 666
r. Gregory 23, 47
V. Moore 404
Throckmorton v. Tracy 497
Thurber v. Martin 318, 320, 340
Thurman v. Morrison 480
Thurston v. Hancock 123, 512,
515, 519, 585
Tickle t'. Brown 124,153
Tillman v. People 199, 202, 206
Tillotson V. Smith 288, 331, 365,
659
Tinkham v. Arnold 103, 133, 417
Tinsman v. Belvidere 663
Todd V. Flight 665
Tourtellot v. Phelps 52, 277, 280,
347, 350, 413
Townsend v. Downer 108
V. M'Donald 106, 309,
356, 361, 384, 387, 389, 646
Tracy v. Atherton 40, 105, 106,
108, 122, 124, 149, 155, 160,
162, 218, 219
Trammell v. Trammell 24
Trask v. Ford 133
V. Patterson 218, 220
Treaty. Lord 416,477
Trower v. Chadwick 519, 535
Truscott V. Merch. Tailors' Co. 577
Trustees, &c. v. Dickinson 268,
284, 392
V. Otis 199
Tucker v. Jewett 326, 382
V. Newman 469, 663
Tudor Ice Co. v. Cunningham 247
Tufts V. Charlestown 226
Tulk V. Moxhay 97
TurnbuU v. Rivers 40, 132, 219
Tyler r. Bennett 118
V. Hammond 607, 609
V. People 476
V. Wilkinson 102, 163, 168,
276, 280, 296, 297, 318, 333,
334, 382, 388
Tyrringham's Case 84, 600
Twiss V. Baldwin 280, 307, 326,
338
u.
Underwood v. Carney 32, 48, 86,
214, 253
c
Underwood v. N. W. Scythe Co.
133,417,418
V. Stuyvesant 195, 228
United States v. Ames 418
V. Appleton 32, 52,
77, 518, 532, 578, 579, 591,
596
United States v. New Bedford
Bridge 481
Valentine v. Boston 119, 173, 174,
178
V. Piper 102, 103
Van Bergen v. Van Bergen 671
Vandenburgh v. Van Bergen 284
Van Hoesen v. Coventry 296, 306,
313, 336
Van Meter r. Hankinson 227
Varick v. Smith 401
Varnum v. Abbot 38
Veazie i;. Dwinel 356,402,408,409,
416, 475, 476, 480, 481
Viall V. Carpenter 220, 221
Vick V. Vicksburg 188, 195, 202
Vickerie v. Buswell 42, 51, 53, 146
Vincent v. Michell 470
Vinton i'. Welsh 502
w.
Wadsworth v. Smith 476
V. Tillotson 270, 277,
283, 296, 307
Waggoner v. Jermaine 666
Wakely v. Davidson 350
Walker V. Shepardson 4 76
V. Worcester 230, 246
Wallace v. Fletcher 106, 109, 158,
160, 162, 169
Wallis V. Harrison 7
Walter v. Selfe 593
Walters v. Pfeil 527, 529, 535
Ward V. Cresswell 491, 495
V. Davis 180, 187, 188, 190
V. Hustis 403, 477
V. Metcalfe 268
V. Neal 583, 590
V. Robins 307, 578
V. Ward 645
Wardle v. Brocklehurst 61, 83, 370
Ware v. Brookhouse 135
Warner v. Green 216
XXXIV
TABLE OF CASES CITED.
"Warren v. Jacksonville 175, 188
V. Matthews 491
Warring v. Martin 330
Watertown Trustees v. Cowen 186,
201, 210, 211, 673
Waters v. Lilley 7, 117, 486, 492
Watkias y. Peck 36,38,124,125,
151, 156,159, 167, 168,
353, 376, 379
Watson V. Bioren 33, 86, 87
Watt V. Trapp 132, 142
Waugh V. Leech 180, 197
Weale v. Lower 90
Webb V. Bird 101,592
r. Portland Mg. Co. 277, 295,
296, 307
Webster v. Fleming 388
V. Stevens 532, 537, 539,
541, 543
Weekly v. Wildman 116, 117, 489,
598
Welcome v. Upton 11
Wellington Petitioners 201
Wells V. Ody 582
Welton V. Martin 295
Wentworth v. Poor 360, 405
V. SandfordMg. Co. 417
Westbrook v. North 214
Westfali v. Hunt 202
Weston V. Alden 297
V. Sampson 491
Wetmore v. Law 402
V. White 42
Weyman v. Ringold 543
Wheatley v. Baugh 165, 269, 347,
452, 456, 459, 465
V. Chrisman 134, 136,
335, 380
Wheeler u.Ahl 337
V. Worcester 272, 290
Whetstone v. Bowser 456
Whipple V. Cumberland Mg.
Co. 295
White V. Bass 45, 77, 220, 222, 578,
579, 618
V. Chapin 77, 130
V. Crawford 10, 72, 118, 641,
646
V. Flannigain 229
V. Leeson 81, 218, 221, 233
Whitehead v. Garris 45
Whitman v. Gibson 97
Whitney v. Lee SO, 86
V. Olney 43
V. Union R.R. 30,591,595
Whittler v. Cocheco Mg. Co. 144,
145, 347, 350, 359, 366
V. Stockman 117
Whalley v. Tompson 49
Wickersham v. Orr 24
Wickham v. Hawker 7, 26, 35, 119
Wigford V. Gill 677
Wiggens v. Tallmadge 206
Wilde V. Minsterley 514
Wild's Case 600
Wilkinson v. Leland 402
V. Proud 121, 558
Wilklow V. Lane 663
Williams v. Cummington 173, 478
V. Gale 332
V. Groncott 564
V. Jersey 90, 670
V. Morland 275, 277, 296
V. Nelson 129, 133, 147,
149, 349, 398,405, 415,
416, 417, 646
V. Safford 40, 254, 257,
655
Wilmarth v. Knight 405, 406
Wilson V. Blackbird Creek 481
V. Cockran 214
V. Forbes 475, 477
r. Willes 120
V. Wilson 104, 106
Wiltshire v. Sidford 534, 540
Winkley v. Salisbury Mg. Co. 406,
413
Winnipiseogee Co. v. Young 106,
142, 149
Winship v. Hudspeth 143, 144
Winslow V. King 14, 214
Winter v. Brockwell 650
Winthrop v. Fairbanks 27
Winton v. Cornish 572
Wissler v. Hershey 218
Witter V. Harvey 206'
Wolcott Co. V. Upham 341, 407
Wolfj;. CofFey 426
Wolfe V. Frost 3, 6, 24, 93, 96, 119
Wood V. Copper Miners Co. 628
V. Edes 331
V.Kelly 142,405,417
V. Leadbitter 23
V. Sutcliffe 355, 671
V. Veal 105, 157
V. Waud 269, 276, 280, 290,
295, 307. 318, 368, 370,
382, 471, 593
Woodbury v. Short 361, 389, 392
Woodman v. Tufts 659, 664
TABLE OF CASES CITED.
XXXV
Woodward v. Suly 24
Woodyer v. Hadden 189, 190, 206
Woolard v. M'CulIouo;h 189
Wooster v. G. Falls Mg. Co. 418
Worcester v. Green 601
Worrall v. Rhoades 129, 132
Worster v. Winnipiseogee Lake
Co. 418, 661
Worthington v. Gimson 50, 58, 64
Wright V. Freeman 588, 634, 646
V. Howard 122, 275, 277,
281, 296, 309, 348, 354
V. Moore 122, 144
V. Rattray 121, 666
V. Tukey 188,200, 204
V. Williams 355, 378, 578
V. Wrijrht 603
Wyatt V. Harrison 516, 520
Wyman v. ]\layor of N. Y. 1 95
Wynkoop v. Burger 225, 254
Y.
Yard v. Ford
103, 105, 124, 129,
168
Yates v. Judd 196
Yeakle u. Nace 642
Zinc Co. V. Franklinite 14, 558, 560
Zusenbuhler v. Gillim 557
THE LAW
OF
EASEMENTS AND SERVITUDES
CHAPTER I.
OF THE NATURE, CHARACTER, AND MODE OF ACQUIRING
EASEMENTS AND SERVITUDES.
Sect. 1. Nature, Classification, and Qualities of Easements, &c.
Sect. 2. Incidents to acquiring Rights of Easements, &c.
Sect. 3. Of acquiring Easements by Grant.
Sect. 4. Of acquiring Easements by User and Prescription.
Sect. 5. Easements by Public Prescription and Dedication.
SECTION I.
NATURE, CLASSIFICATION, AND QUALITIES OF EASEMENTS, ETC.
1. Introductory.
2. Easements and Servitudes defined.
3. A Profit a prendre, — how far an Easement.
4. Servitudes under the Civil Law defined.
5. Easements distinguished from Licenses.
6. Custom distinguished from an Easement.
7. When Profit a prendre an Easement, and when an Estate.
8. In what sense Courts use Easements and Servitudes.
9. Easements distinct from General Ownership of Land.
10. Two Estates implied by Easement, dominant and servient.
11. How far Easements may be created in gross.
12. When an Easement in ^oss is virtually an Estate.
12 a. Eight to Water, the Subject of Grant in gross.
13. An Easement implies neither General Property nor Seisin of Land.
14. Que Estate defined.
1
2 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
15. Distinction between a Right to the Soil and to take Soil.
16. Classification of Servitudes under the Civil Law, &c.
17. Of Continuous and Discontinuous Easements at Common Law.
18. Of Negative Easements. Pitkin v. L. L R. R. Co.
19. Of a Natural Servitude of Water and its Incidents.
20. How far a Right may be a " Natural Easement."
21. A Destination du P'ere de Famille defined.
22. The Servitude non officiendi luminibus, &c., applied.
1. From the various modes of use and enjoyment to
which lands may be subjected, there results an idea of
property in these distinct from tliat of actual possession,
with which the feudal doctrine of real property is chiefly as-
sociated. Almost every shade of interest or right of control
over corporeal hereditaments may exist, from the absolute
dominion of the allodial proprietor to the briefest and most
qualified use which may be made of them, by mere license
and indulgence, which necessarily leads to a classification
of rights, in treating of Real Property as a general system.
It is of one only of these classes that this work proposes
to treat, and, although somewhat comprehensive in its char-
acter, it is embraced under the generic term of Easements
or Servitudes.
2. Various forms of definition have been applied in de-
scribing this class of interests in real property, which are
more or less comprehensive, as the court or writer was con-
templating the subject as an entire system, or in its more
limited and restricted sense.
Thus the definition adopted by Bayley, J., from " Termes
de la Ley," which he calls " a book of great antiquity and
accuracy," is " a privilege that one neighbor hath of an-
other by charter or prescription, without profit"; and it is
illustrated " as a way or sink through his land, or such
like." 1 And, in another case, the court, in giving illus-
trations of what are easements, speak of " rights of way,
rights to water, right to pollute water, and rights of com-
mon," as being " well defined as easements, to be exercised
1 llewlins v. Shiitpam, 5 Barnew. & C. 221 ; Cowel, Interp. "Easement."
Sect. 1.] NATURE, CLASSIFICATION, ETC. OF EASEMENTS. 3
by one person over the land of another," and add : " The
right acquired by time to send noxious vapors over an-
other's land is another instance." ^
The essential qualities of easements are these : 1st, they
are incorporeal ; 2d, they are imposed on corporeal property,
and not upon the owner thereof; 3d, they confer no right
to a participation in the profits arising from such property ;
4th, they are imposed for the benefit of corporeal property ;
and 5th, there must be two distinct tenements, — the domi-
nant, to which the right belongs, and the servient, upon
which the obligation rests.^ But it is not necessary that
the dominant and servient estates should be in contiguity
with each other.^ A contract for a right to pass over the
lands of another is an easement extending only to a tem-
porary disturbance of the owner's possession. Tlie grantee
of such an easement is not the owner or occupant of the
estate over which the way is used.*
3. These definitions, it will be perceived, exclude the
right of taking profits in another's land, commonly called
profits a prendre^ although the court, in Kowbotham v. Wil-
son, embrace rights of common as expressly within the term
easement, and although, as will appear hereafter, such rights
were included in those of servitude under the civil law, with
which easements are understood to be in most, if not all re-
spects, identical.
Mr. Burton speaks of them thus : " Rights of accommoda-
tion in another's land, as distinguished from those which
are directly profitable, are properly called easements."^
1 Rowbotham v. Wilson, 8 Ellis & B. 123. " All easements are things incor-
poreal, mere rights invisible and intangible." Bowen v. Team, 6 Rich. 298. A
servitude is thus defined by the Code Nap., § 637 : " Une charge impose'e
Rur heritage pour I'usage et I'utilite d'un heritage appartenant a un autre proprie-
taire." The civil law recognized a servitude which was due from one person to
another, which was not recognized by the laws of France or England. Inst. L.
Ijtit. 3, §2. 1 Lepage Desgodcts, 4. Giitter. Brae. 98.
2 Wolfe V. Frost, 4 Sandf. Ch. 72 ; Tud. Lead. Cas. 107.
8 Perrin v. Garfield, 37 Vt. 312.
* Cook Co. V. C. B. & Q. R. R., 35 111. 464.
6 Burt. Real. Prop., k 1165.
4 THE LAW OF EASEMENTS AND SERVITUDES. [Cir. I.
Nor does the last definition embrace the class of rights
■which one may have in another's land, like a right of way
or of common, without its being exercised in connection
with the occupancy of other lands, and therefore called a
right in gross. Mr. Burton says, " Such a right (of way),
if in gross, seems to be not properly a tenement."^ Servi-
tus presupposes a relation existing between two pieces of
land. Rights granted to the person only, were not held to
be servitudes? But, after all, it partakes so mucli of the
character of an easement, that, like the rights which the in-
habitants in certain localities may acquire by custom^ or the
public by dedication, to pass over the land of an indi-
[*4] vidual, for instance, it *would be difficult to treat of
easements and servitudes, without embracing these
rights, as well as that of taking profits in another's land
which one may enjoy in connection with the occupancy of the
estate to which such right is united. An illustration of what
constitutes an easement, as distinguished from a profit a
prendre, would be this. All rights of way are easements.
So is the right to enter upon another's land, and to erect
booths thereon on public days, or to dance and play at law-
ful sports. So are aquatic rights of whatever kind when en-
joyed by those who do not own the soil, such as a right to
take water from a spring or a well upon another's land for
domestic use. But a right to take and carry away sea-weed
is a profit a prendre, and not a technical easement. Nor can
it be prescribed for as a personal right, or a right by custom.^
Indeed, the latter branch of the subject is expressly in-
cluded in the definition given by the court in Ritger v.
Parker, viz. : " An easement or servitude is a right which
one proprietor has to some profit, benefit, or lawful use, out
of, or over, the estate of another proprietor." ^
1 Burt. Roal. Prop., S 1166.
2 Gutter. Bnic, c. 1.5, p. 122.
3 Hill V. Lord, 48 Maine, 99. Pout, *78, *79.
* llitgcr r. ]*arker, 8 Cush. 14.5. In trcatinj; of the .subject in this broader sense
of the term, it ia believed we arc fully sustained by the following, among other
Sect. 1.] NATUKE, CLASSIFICATION, ETC. OF EASEMENTS. 5
4. The term which is applied to interests in land, such
as have been above referred to, by the civil law, is " Servi-
tudes." Nor can the doctrines of the common law upon the
subject be fully understood or explained, without occasion-
ally referring to those systems from which the common law
has borrowed many of its rules, A " servitude " is defined
to be " a right, whereby one thing is subject to another thing
or person, for use or convenience contrary to common right."
" Services," it is further said, " may be divided into real and
personal. Real, which are also called *■ prcedial services,' are
such as one estate owes unto another estate, as, because I am
the owner of such a ground, I have the right of a way
through the ground of another person, or, because I am pos-
sessed of this house, my neighbor cannot beat out a light or
window out of his own house towards mine, or build his
house higher without my leave." ^
It is the nature of servitudes not to constrain any one to
do, but to suffer something, " ut aliquid patiatur aut non
faciat."^
*" Hence," says Mr. Erskine, " it may be perceived [*5]
that he whose tenement may be subject to a servitude
is not, in the common case, bound to perform any act for the
benefit of the person or tenement to which it is due. His
whole burden consists either in being restrained from doing,
or in being obliged to suffer something to be done upon his
property by another. In the first case, in which the pro-
prietor is barely restrained from acting, the servitude is called
neg-ative, in the lo^st positive .^^ ^
Both terms. Easements and Servitudes, are used by com-
mon-law writers, and often indiscriminately. The former,
authorities : Brakely v. Sharp, I Stockt. 9 ; Doe v. Wood, 2 Barnew. & Aid. 724 ;
Kieffer v. Imhoff, 26 Tenn. St. 438 ; Shelf. R. P. Stat. 6; 1 Lomax, Dig. 614 ;
Tud. Lead. Cas. 107 ; KarmuUer v. Kratz, 18 Iowa, 357.
1 Ayl. Tand. 306 ; Ersk. Inst. 3.54.
2 2 Fournel, Traite dii Voisin.ige, 361 ; D. 8, 1, 15 ; 5 Duranton, Cours de
Droit Fran9ais, 498, ed. 1834; Lalaure, Traite' des Servitudes, 9.
8 Ersk. Inst. 352.
6 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
however, is more generally applied to the right enjoyed, the
latter to the burden imposed. The right of way which one
man has, as the owner of an estate, over the land of another,
is an easement in the one estate and a servitude upon the
other.
As both terms may, at times, be employed in this work,
this explanation seemed to be necessary in order to prevent
confusion in the forms of expression that may be made use of.
5. There is an important distinction to be observed be-
tween an Easement and a License, lest the apparent similar-
ity in their mode of enjoyment should mislead the inquirer,
at times, as to their character. An Easement always im-
plies an interest in the land, in or over which it is to be en-
joyed. A License carries no such interest. The interest of
an easement may be a freehold or a chattel one, according to
its duration ; whereas, whatever right one has in another's
land by license may, as a general proposition, be said to be
revocable at will by the owner of the land in which it is to
be enjoyed.!
Thus it is said, " An easement must be an interest in or
over the soil."^ " It lies not in livery, but in grant,
[*6] 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." ^
And where a right of way was set off to a widow as appur-
tenant to her dower land, it was held to continue only dur-
ing the continuance of her life estate."^
The foregoing distinction between a license and an ease-
ment may be illustrated by the effect given to a conveyance
of the land in or over which it is to be enjoyed. A convey-
ance of land by the grantor, who has given a parol license to
1 Ex parte Coburn, 1 Cow. 568 ; Wolfe v. Frost, 4 Sandf. Ch. 72 ; Foster v.
Browninp:, 4 R. I. 47 ; post, p. *7.
2 Per Cressivdl, J., llowbotluim v. Wilson, 8 Ellis & B. 123.
2 Hewlins v. Shippam, 5 Baniew. & C 221, per Boyleij, J.
* IIofTman v. Savage, 15 Mass. 131. See Symmcs v. Drew, 21 Pick. 278;
Grant v. Cliaso, 17 Mass. 446.
Skct. 1.] NATURE, CLASSIFICATION, ETC. OF EASEMENTS. 7
another to enjoy a right in the nature of an easement in it,
ipso facto^ determines the license ; whereas whoever takes
an estate upon which a servitude has been imposed, holds it
subject to the same servitude, and in the same manner as it
was held by his grantor. ^
6. It may be further remarked, by way of preliminary
explanation, that, while in acquiring an easement by grant
or prescription, which is deemed to be evidence of a grant, a
grantor and a grantee are always implied, there is a class of
easements which the residents of vills or particular localities
may acquire by what is called custom, altliough not claimed
by them as personal rights, nor as rights belonging to a body
politic, nor by any right or claim as grantees.^
And in further explanation of the distinction there is be-
tween an easement or servitude, properly so called, and a
right by custom, it may be stated, that among the rights
which have been held to be gained by custom, are those of
the people of a particular vill coming together to dance upon
a particular close, or drawing water for their use from
*a certain well or spring of water. But these rights do [*7]
not extend to the taking of profits in the land of another,
such as catching fish in his waters, or taking sand from his
soil or herbage from his close. This can only be acquired by
grant or prescription, and implies a person or body politic in
esse, competent to take by deed.^ If the grant be a personal
license of pleasure, it extends only to the individual, and is
not to be exercised by or with servants ; but if it be a license
of profit and not for pleasure, it may. The case referred to
was of a license to hunt, and as it included the right to kill
1 Wallis V. Harrison, 4 Mees. & W. 538 ; Hills v. Miller, 3 Paige, 254, 257.
2 Brakely v. Sharp, 1 Stockt. 9 ; Lockwood v. Wood, 6 Q. B. 31, 66; Day
V. Savadge, Hob. 85 ; Gateward's case, 6 Rep. 60 ; 1 Lomax, Dig. 614 ; Smith
V. Gatewood, Cro. Jac. 152.
3 Bland v. Lipsconihe, 4 Ellis & B. 714, note; Grimstead v. Marlowe, 4 T. R.
717; Abbot v. Weekly, 1 Lev. 176; Waters v. Lilley, 4 Pick. 145; Race v.
Ward, 7 Ellis & B. 3S4 ; Wickham v. Hawker, 7 Mees. & W. 63. See post, sect.
4, pi. 12, 13, 18 ; chap. 3, sect. 10.
8 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
and take with him the deer at his pleasure, it was held a
license to go on with his servants, or send them to hunt ;
whereas, if it was a mere license to hunt at his pleasure,
he cannot take away the game, nor go with servants, nor
assign his license to another. ^
7. This right of profit a p7'endre, if enjoyed by reason of
holding a certain other estate, is regarded in the light of an
easement appurtenant to such estate ; whereas, if it belongs
to an individual, distinct from any ownership of other lands,
it takes the character of an interest or estate in the land it-
self, rather than that of a proper easement in or out of the
same.^ Where, in the grant of one parcel of land, it was
agreed that the grantee should " have the use of the timber "
on another parcel, belonging to the grantor, it was held
that the right granted was one " in alieno solo, like common
of turbary, or the right to take coal or ore in another's land,
and was when assignable not properly an easement but a
profit a prendre which may be acquired by grant or prescrip-
tion, and a covenant by the owner of the soil that it shall
exist, amounts to a grant of it." And if not assignable, but
a mere personal privilege, the covenant gives an irrevocable
license for its exercise. But the court, though they hold it
an incorporeal right, do not decide whether, in this case, the
right to use the timber was a personal one in gross, or a right
appurtenant to the granted estate.^
8. It will be necessary to refer to these distinctions again.
And they have been noticed at this stage of the work chiefly
for the purpose of defining the meaning of certain terms and
phrases which will often occur in the progress of it. And
the following citations are added for the same purpose, —
the first as showing the sense in which the term easement is
used in its connection with the civil law, the others as pre-
1 Duchess of Norfolk v. Wiseman, cited 7 M. & W. 77, from the Y. Books.
Post, p. *28. Sec Mauwood, 108.
2 Per Walworth, Ch., Post v. Pearsall, 22 Wend. 425; Grimstcad v. Marlowe,
4 T. R. 717 ; jiost, sect. 4, pi. 20.
» Clark V. Way, 11 Kich. (Law), G21 ; post, p. *11.
Sect. 1.] NATURE, CLASSIFICATION, ETC. OF EASEMENTS. 9
senting what is believed to be its use, at this day, in courts
of common law.
" In the Civil Law, a servitude which is but a single right
of property, and is called in our law an Easement, is a bur-
den affecting lands, by which the proprietor is restrained
from the full use of his property, or is obliged to suffer an-
other to do certain acts upon it, which, were it not for the
burden, would be competent solely to the owner." ^ " The
right of making use of the land of others, whether it be
that of the public or individuals, for a precise and
definite *purpose, not inconsistent with a general right [*8]
of property in the owner, especially where it is for the
public use, is, in legal contemplation, an easement or fran-
chise, and not a grant of the soil or general property." ^ In
the words of Bramwell, B., an easement is " something ad-
ditional to the ordinary rights of property " ; and in those
of Williams, J., it is " a right accessorial to the ordinary
rights of property."^
9. The ownership of an easement, and that of the fee in
the same estate, are in different persons. Nor does the in-
terest of the one affect that of the other, so but that each
may have his proper remedy for an injury to his right, inde-
pendent of the other. Thus the owner of the fee may re-
cover his seisin by a proper action in his own name, and the
owner of the easement, if disturbed in the enjoyment of it,
may sue for such disturbance in his own name.*
10. It is hardly necessary, after the above definitions, to
add, that the existence of two distinct and separate estates
or tenements is implied in the existence of an easement ;
the one in favor or for the benefit of which it exists, and
is called dominant, and the other, over or upon which it
is exercised, and is called servient ; and, as will be seen
1 Laumier v. Francis, 23 Mo. 181.
2 Boston Water Power Co. v. Boston & Worcester II. R., 16 Pick. 512, 522.
3 Rowbotiiam v. Wilson, 8 Ellis & B. 123, 152. See also Harhack v. City of
Boston, 10 Cush. 295; Shelf. R. P. Stat. 6. Dubuque v. Maloney, 9 Iowa, 450.
* Hlhcock V. Wentworth, 5 Mete. 446 ; Morgan v. Moore, 3 Gray, 319.
10 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
hereafter, if at any time these estates are united under
one ownership and possession, the easement is at once ex-
tinguished.^
11. A man may have a way, in gross, over another's land,
but it must, from its nature, be a personal right, not assign-
able nor inheritable ; nor can it be made so by any terms
in the grant, any more than a collateral and independent
covenant can be made to run with land.
And if one has a right of way appendant or appurtenant
to an estate, he cannot grant it separate and distinct from
the land to which it belongs.
[*9] *So where there was a grant of a right of way /or all
purposes, though it might authorize the grantee to use
the way for purposes not connected with the use of the land
granted therewith, yet if land was in fact granted therewith,
so far as the use exceeded the purposes which were properly
connected with the enjoyment of the land, it would be a
personal right, and not assignable. When, therefore, the
grantee conveyed the dominant estate " with all ways," &c., it
did not convey any right of way as being appurtenant, under
that grant, except such as was connected with the use and
enjoyment of the land to which it was annexed. " It is
not," say the court, " in the power of a vendor to create any
rights, not connected with the use and enjoyment of the land,
and annex them to it ; nor can the owner of land render it
subject to a new species of burden, so as to bind it in the
hands of an assignee.^
The language of the court in White v. Crawford,^ might
seem to conflict with what is said above : " As to ways in
gross, that they may be granted or may accrue in various
forms to one and his heirs and assigns, there can be no doubt.
Tlicre is a strong example of such a grant in the case of
1 Tud. Lead. Cas. 108. Mabie v. Mattcson, 17 Wis. 1 ; 1 Desgodets, ch. 2,
art. 1.
'^ Ackroyd v. Smith, 10 C. B. 164, 1G7, 188; Garrison v. lludd, 19 111. 558;
Woolr. Ways, 16 ; post, sect. 2, pi. 16.
8 White V. Crawford, 10 Mass. 188.
Sect. 1.] NATURE, CLASSIFICATION, ETC. OF EASEMENTS. 11
Senhousc v. Christian,^ upon which the defendants justified
as heirs of the original grantee."
12. But the language of Walworth, Ch., in Post v. Pear-
sall,2 would seem to furnish a clew hy which these cases may
be reconciled with the above doctrine of Ackroyd v. Smith.
The distinction seems to be this : If the easement consists
in a right of projit a prendre, such as taking soil, gravel,
minerals, and the like, from another's land, it is so far of the
character of an estate or interest in the land itself,
*that, if granted to one in gross, it is treated as an [^lO]
estate, and may, therefore, be one for life or inheri-
tance. But if it is an easement proper, such as a right of
way and the like, and is granted in gross, it is a mere per-
sonal interest, and not inheritable. The case of Senhouse
V. Christian was one where there was a grant of a way, and
the question was, chiefly, as to the mode and extent of using
it, and the point of its being inheritable does not seem to
have arisen in the hearing. But the very terms of the grant
implied an occupancy of the grantor's land to a certain ex-
tent, as, for instance, to "make and lay causeways," &c., and
it was held to be the grant of a right to lay a framed wagon-
way across the grantor's land.
12 a. In a very recent case in Massachusetts,^ Foster, J.
examines the question of a grant of a right to draw water
from a spring by means of an aqueduct, and how far it was
itself a subject of grant independent of the ownership of any
estate to which it was appurtenant, in a full and elaborate
opinion, in which it is clearly shown that such a right is the
subject of grant and inheritance, although not accompanied
by the grant of an estate in land. The right was created by
a reBervation by the original owner of the estate upon which
the spring was situated when granting the same, the reser-
1 Senhouse v. Christian, 1 T. R. 560.
^ Post V. rearsall, 22 Wend. 425 ; Perley v. Langley, 7 N. H. 233 ; post, sect.
4, pi. 20. See also 2 Blackst. Comm. 33, the case of Common ; Welcome v.
Upton, 6 Mees. & W. 536, case of Pasturage.
2 Goodrich v. Burbank, Allen, not yet reported.
12 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
vation being to the grantor, his heirs and assigns, without
any reference to any estate with which it was to be used ; and
the injury complained of was cutting the aqueduct by the
owner of the soil. He cites, with approbation, the language
of Curtis, J : 1 " If I have a spring, I may sell the right to
take water from it by pipes to one who does not own the land
across which the pipes are to be carried, and I may restrict
the use to a particular house, or not, as I please." " Incor-
poreal hereditaments may be inseparably annexed to a par-
ticular messuage or tract of land by the grant which creates
them and makes them incapable of separate existence. But
they may also be granted in gross, and, afterwards, for pur-
poses of enjoyment, be annexed to a messuage or land with-
out the right, or a conveyance of the right without the land."
Although, in the cases above cited from both the New
York and Massachusetts courts, there is a distinction made
between the grant of water and of a profit a prendre^ where
water is, as it may be, a subject of sale in gross as a thing of
value, it does not seem to be violating any principle of law
to regard it as a species oi profit a prendre, and therefore a
subject of separate grant. Thus in Chatfield v. Wilson, the
court, speaking of water in the earth or percolating under
its surface, say : " Such water is to be regarded as part of
the land itself, to be enjoyed absolutely by the proprietor
within whose territory it is." ^ And in giving judgment in
Acton V. Blundell, Tindal, C. J. remarks : " It (the case)
falls within that principle which gives to the owner of the
soil all that lies beneath his surface ; the land immediately
below is his property, whether it is solid rock or porous
ground or venous earth, or part soil, part water. The per-
son who owns the surface may dig therein and apply all that
is there found to his own purposes, at his free will and
pleasure." ^
1 Lonsdale Co. v. Moics, 21 Law Rep. 664 ; see Dc Witt v. Harvey, 4 Gray,
489 ; Buffum v. Harris, 5 U. I. 243 ; Borst v. Empie, 1 Seltl. 40.
2 Chatfield v. Wilson, 28 Verm. 49.
8 Acton V. Blundell, 12 M. & Wcls. 354. See Buffum v. Harri.s, 5 K. L 253.
Sect. 1.] NATURE, CLASSIFICATION, ETC. OF EASEMENTS. 13
And though it might be difficult to raise a prescriptive
right of inheritance in the privilege of an aqueduct by a per-
sonal enjoyment, independent of its user in connection with
some estate, and although a right to the enjoyment of water
from a well or spring or river may be gained by custom, since
no part of the soil or freehold, proper, is thus carried away
any faster than it is ordinarily supplied from natural sour-
ces, yet, after all, it is an interest in land ; and as the judge
in Goodrich v. Burbank very properly and forcibly remarks,
" we are unable to distinguish between the right to take wa-
ter by a canal from a pond for the purposes of power and the
right to take it from a spring in a pipe for domestic pur-
poses." ^
If the grant of a right to take water in or from the grant-
or's estate can be regarded as " taking a profit in the soil,"
the cases seem clear that it may be to one and his heirs, in-
dependent of the ownership of any estate to which the right
is to be appurtenant. Thus a right " to search and get "
minerals,^ or to hunt in a man's park and carry away the
deer,^ are subjects of grant, and may pass to assigns.
And the court in Hill v. Lord say, " that the right to wa-
ter in wells or cisterns would be an interest in the land or a
profit a prendre^ ^ And though, if the action were against
a stranger for taking water from a spring of running water,
the distinction might be a valid one between water in a stream
and water in a well or cistern, it would not seem to lie in
the mouth of the grantor to justify cutting off the supply
wliich is enjoyed by means of a pipe laid through his land
from a spring that rises within the same, the right to take
and enjoy which, by maintaining such pipe, he or those under
whom he claims title had conveyed by deed.
13. The owner of an easement in another's land has nei-
1 See post, *T9, *80. Hurd v. Curtis, 7 Met. 114.
2 Muskett V. Hill, 5 Bing. N. C. 694.
3 Thomas v. Lovell, Vaughn, 351 ; Bailey v. Stephens, 12 C. B., n. s. 108.
* Hill V. Lord, 48 Maine, 100.
14 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
tlier the general property in nor seisin of the servient estate,
though he may, by holding a fee in the estate to which such
easement is appurtenant, have an estate of inheritance in the
easement. And from being something impalpable, of which
a seisin cannot be predicated, easements are classed with in-
corporeal hereditaments, and are so designated in the defini-
tions thereof.^
14. If one claims a prescriptive right to an easement in
another's land, by reason of owning or occupying land to
which such right is appurtenant, he is said to claim in a que
estate, and it is only in this form that a claim of a profit a
prendre, by prescription, can be sustained.^
15. The case of Doe v. Wood illustrates the distinction
between the grant of a specific portion or share of soil, and
that of a right or privilege to acquire something by acts done
upon the soil of another. In that case, the grant was of a
right to search for metals in the grantor's land, and to
[*11] raise and dispose of the same when found there, *dur-
ing the time. It was held to be, not a specific granf of
the metals in the land, but a right of property only as to
such part thereof as, under the liberties granted, should be
dug and got ; that the grantee had no estate as property in the
land itself, or any particular portion thereof, or in any part of
the ore ungot therein, and that it was very different from a
grant or demise of the mines or metals in the land. The
right to obtain the minerals is spoken of as an " incorporeal
privilege." ^ If, however, the grant be of a mine with min-
ing privileges, it is not an easement, but a part of the free-
hold.4
16. In classifying servitudes, the civil law recognized a
much more minute subdivision of the various forms they as-
1 "Winslow V. King, 14 Gray, 321 ; Ayl. Pand. 306 ; Baer v. Martin, 8 Blackf.
317; Pitliin v. Long Island 11. R. Co., 2 Barb. Ch. 221 ; Orleans Navigation Co.
V. Mayor of New Orleans, 2 Mart. 214.
2 Grimstead r. Marlowe, 4 T. 11. 717 ; Abbot v. Weekly, 1 Lev. 176.
8 Doc V. Wood, 2 Barnew. & Aid. 724.
* Caldwell V. Pulton, 31 Penn. 475 ; Zinc Co. v. Franklinitc, 13 N. J. 341 ;
Grubb V. Bayard, 2 Wallace, Jr. 81 ; ante, p. *7.
Sect. 1.] NATUEE, CLASSIFICATION, ETC. OF EASEMENTS. 15
sumed, than those in use in the common law, although, as
already remarked, the latter has bori-owcd so liberally from
the former. And though, in treating of the subject, the
more general classification of the common law will be ob-
served, it seems proper to mention some, at least, of the di-
visions, and their designation, which were known to the civil
law in its practical application. For though it is said by
Martin B., that the civil law has no binding authority in the
administration of the common law in England, the cases are
numerous in the American courts, where the doctrines of the
civil law are referred to, in determining the rights of parties
in respect to easements and servitudes.^
That class of servitudes which are chiefly treated of in this
work were called Predial, from Prtsdia, lands and tenements,
being such services as one estate owes to another. These
were again divided into rwra/ and urban, the one relating to
land not occupied by buildings, the other affecting buildings,
whether in a city proper, a vill, or in the country.^
Among the rural services was the right of passing over
the land of another, which took various names of Iter, Actus,
and Via or Aditus, according to the extent and mode of
using the same ; the right of bringing water through anoth-
er's land, called Aqucc ductus, when done by pipe or rivulet ;
the right of drawing water, of watering cattle, of pasturage,
hunting, hawking, fishing, making lime and digging gravel,
chalk, stone, or sand, for the use of the dominant estate,
though not for other uses, such as the manufacture of earth-
enware. All these were what were called affirmative ser-
vices.
*The urban services were either affirmative or nega- [*12]
tive. Among the affirmative urban services were the
right to rest the wall of a house for its support against that of
another, and to require the owner of the latter to keep the
same in repair ; the right to fix and rest a beam or timber or
1 Dodd V. Burchell, 1 H. & Colt. 121.
2 Guterb. Brae, c. 15 ; 1 Desgodets, ch. 1, art. 2.
16 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
stone in the wall of another's house, in which case the latter
was not bound to keep his wall in repair ; the right to extend
a balcony over the land of another, or to excavate a vault be-
neath it ; the right to extend the eaves of one's house over
the land of another, to turn the droppings of his eaves upon
the house or ground of another, or to receive the droppings
from another's eaves upon one's own land, for his own use
and benefit ; a right to have a sink or gutter through a
neighbor's house, to construct what lights or windows he
chooses against the estate of another, and to have a clear and
pleasant prospect from one's house over another's court or
yard, or to have a passage-way through another's house or
yard to one's own.
Among the negative services of an urban character were,
that one's neighbor should not turn the droppings of the
eaves of his house upon the house or ground of him who
has the servitude ; that he should not darken his windows,
or hinder his prospect by building, or by planting trees ; that
lie should not make windows overlooking his premises ; and
a right to restrain another from building his house above a
prescribed height.^
The 637th to the 701st articles of the Code Napoleon de-
scribe and enumerate the servitudes known to the French
law, and include, — 1st, such as arise from the situation of
places, as the respective rights of the owners of adjacent
lands in respect to the waters upon the one passing upon or
across the other, the boundaries of adjacent lands,
[*13] and *the like ; 2d, such as are created by law, among
which are towing-paths upon banks of rivers and
highways, and party walls and ditches between two estates,
and party or division hedges dividing lands, servitudes of
views over a neighbor's property, and those of eaves of roofs
and of ways answering to ways of necessity at common law ;
1 Ayl. Pand. 306-310; "Wood, Inst. Civ. Law, 147; 1 Brown, Civ. Law,
182, 183 ; 1 Kauff. Mackddey, 33.5 - 347 ; 2 Fournal, Traite du Voisinage, 400 ;
D. 8, 2, 2 and 3 ; Ibid. 8, 3, 1. See Shelf. R. P. Stat. 6 ; post, chap. 3, sect. 12.
Sect. 1.] NATURE, CLASSIFICATION, ETC. OF EASEMENTS. 17
3d, servitudes created by the act of man, which are divided
into urban and rural, answering to a like division in the civil
law, servitudes continual and continuable, and servitudes ap-
parent and non-apparent. Another division of the subject is,
1st, how servitudes are created, and 2d, what are the rights
of the owner of the property to which the servitude is due.^
The Civil Code of Louisiana follows substantially the Code
Napoleon, in relation to servitudes predial or landed, though
somewhat more minute in their subdivision, and the rules by
which they are created or regulated, extending from Articles
642 to 818 inclusive, beginning at p. 96 of Upton and Jen-
nings's edition of that work.
But it has not been ihought advisable to occupy space in
transcribing any of these codes, any further than it may be
found of use by way of illustrating corresponding parts of the
common law upon the subject.
The same may be said of the Scotch law of servitudes,
which substantially follows the civil law, and may be found
embodied in Erskine's Institutes.^
17. Many of the classifications of easements in the Code
of France ara recognized by the courts of common law, as,
for instance, that of continuous and discontinuous, which are
thus defined : " Continuous are those of which the enjoy-
ment is or may be continual, without the necessity of any
actual interference by man, as a waterspout or a right of light
light or air. Discontinuous are those the enjoyment
*of which can be had only by the interference of man, [*14j
as rights of way, or a right to draw water." ^
1 2 Code Nap., Barrett's transl., Art. 6.37-689. See 2 Fournel, Traite' du Voi-
sinage, 400-407. The doctrines of the civil code, relating to the easements and
servitudes of buildings, were borrowed principally from the coutume of Paris,
while those affecting other property than buildings were derived from the Roman
law. 2 Law Mag. & Rev. 8.
2 Ersk. Inst., fol. ed. 352 - 370. See also 3 Burge, Col. & F. Law, 400 ; post,
chap. 3, sect. 12.
3 Lampman v. Milks, 21 N. Y. 505 ; Durel v. Boisblanc, 1 La. Ann. 407 ;
Pheysey v. Vicary, 16 Mees. &W. 484 ; Polden v. Bastard, 4 B. & S. 258 ; Suffield
V. Brown, 10 Jur. N. S. Ill ; Kerr v. Kerr, 14 Louis, 177.
2
18 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
It may be further added, that in affirmative easements the
servient tenement must permit some act to be done thereon by
the owner of the dominant estate, such as passing over it as
a way, discharging water upon it from a channel or spout or
eaves of his house. In negative easements, the owner of the
servient estate is prohibited from doing something upon his
own land which he otherwise might do, such as not building
upon the same, when by so doing he obstructs the light and
air from reaching the dominant estate, or not digging in his
soil so as to weaken the foundations of the house standing on
the dominant estate, and the like.^
18. An instance of a negative easement or servitude is
found in Pitkin v. Long Island R. R. Company, in the obli-
gation which the respondents entered into with a land-owner,
to stop their cars at a particular place adjoining his property.
The court held it, in substance, an easement or servitude,
binding upon the property of the company, and an interest
in their land in favor of the land-owner. The land proprie-
tor in such case had a negative easement in the property of
the railroad company, whereby he might restrict them, as
owners of a servient tenement, in the exercise of general and
natural rights of property, so as to compel them to use it in
a particular way, by keeping certain erections thereon, and
stopping with their trains of cars at a particular place for his
use and benefit as tlie owner of the adjacent land, which thus
became the dominant tenement. It was, tlierefore, held to be
an incorporeal hereditament, the right or title to which could
only be acquired by a grant or deed under seal, or by pre-
scription. ^
19. The instance given in a reported case, illustrat-
[*15] ing the *distinction between natural, legal, and con-
ventional casements, in respect to their origin, is that
of the natural servitude to which a lower field is subject, to
1 Tud. Lead. Cas. 107.
'^ Pitkin V. Long Island R. II. Co., 2 Barb. Ch. 221, 231. See also Day v.
New Yoik Central K. 11. Co., 31 Barb. 548. Greene v. Crcighton, 7 11. I. 1 ;
post, pp. *G3, *508.
Sect. 1.] NATURE, CLASSIFICATION, ETC. OF EASEMENTS. 19
receive the surface water which flows on to a lower level
from a higher one.^
Though this is treated of more at length in a later stage of
the work, it may he remarked that such a servitude is only
regarded as a natural one, in respect to the water which is
naturally upon the higher field, and not as to such as is
created by the industry of man. While the owner below
may not do anything to prevent the water naturally thereon
from flowing from the upper field upon his own, the upper
one has no right to do anything upon his land to increase
the burden upon the field below, beyond what may arise
from a proper cultivation of the same for agricultural pur-
poses. And even in so doing he may not dig ditches to
discharge water, that naturally stands stagnant upon his
own land, on to that of a lower proprietor.^
20. The term " natural easements," as applicable, es-
pecially, to the case of flowing water, is often made use
of by courts of common law, and is not likely to mislead
the reader, inasmuch as the context usually shows in what
sense the term is employed. But as it will appear hereafter
that an easement, when technically considered, is an interest
which one man has in another's estate by grant, or its
equivalent, prescription, it seems, at first thought, to be
inconsistent to characterize what belongs to an estate as
inseparably incident thereto, and forming a part and parcel
1 Laumier v. Francis, 23 Mo. 181. See Ersk. Inst., fol. ed. 352; Orleans
Navigation Co. v. Mayor of New Orleans, 2 Mart. 214 ; 2 Fournel, Traitc' du
Voisinage, 400.
The French law reckons five natural servitudes, viz.: 1. The flowing of wa-
ter from higher to lower land. 2. The right to a spring or fountain of water on
the part of the owner in whose land it rises. 3. The right of a land-owner to a
watercourse flowing through or forming a boundary of his land. 4. The fixing
and maintaining boundaries between lands of adjacent owners ; and 5. Building
and maintaining fences for separating the lands of different owners. 1. Lapage
Desgodets, 15.
2 Martin i;. Jett, 12 La. 501; La. Civ. Code, Art. 656; Sowers v. Shiff, 15
La, An. 301 ; Duranton, Cours de Droit Fran^ais, 159; Delahoussaye v. Judice,
13 La. An. 587 ; Orleans Navigation Co. v. Mayor of New Orleans, 3 Mart.
214 ; post, chap. 3, sect. 1, pi. 19.
20 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
thereof, by the name of easement or servitude. It may be
in many and perhaps most respects like an easement, and
may be treated of accordingly, and yet will hardly come
within the requisites of what constitutes an easement at
common law. And Erie, J., in Stokoe v. Singers,
[*16] *accordingly says : " The right to the natural flow of
water is not an easement, but a natural right." ^
21. By the French law, there may be such an arrange-
ment of the parts of two estates belonging to the same
person, that, for fancy or convenience, the use of the one is
made available to the enjoyment of the other. Thus, for
instance, the one may enjoy the advantage of a look-out or
prospect across the other, and for this purpose windows may
have been opened in the latter ; or doors may have been
opened through the walls separating the estates, by which
communication may be had with the street ; or water may
be conducted by an aqueduct from a pond or a fountain
which belongs to the owner of one estate into a meadow
which he may wish to water. And these may be mutual,
each estate having for this purpose an advantage in the
other, reciprocally, or the arrangement may be such that
only one of the two estates enjoys a benefit from the other.
The arranging and adapting the two estates in this way to
each other is called Destination du pere de famille. But
this does not extend to discontinuous easements like rights
of way .2
So long as both estates belong to the same person, though
the uses thus made of one estate for the benefit of the other
may, in some sense, be a service, it cannot be a servitude in
the eye of the law, for nemini res sua servit jure servitutis.^
But if the owner convey one of these estates to one, and
another to another, or they come to different heirs by his
death, this service, so far as it is continuous and apparent in
1 Stokoe V. Singers, 8 Ellis «& B. 36 ; 2 Fournel, Traite' du Voisinage, 400.
2 Cleris v. Tieinan, 15 La. An. 316 ; Fisk v. Hubcr, 7 La. An. 323.
3 Gary v. Daniels, 8 Met. 466; Mabie v. Mattesou, 17 Wis. 10.
Sect. 1.] NATURE, CLASSIFICATION, ETC. OF EASEMENTS. 21
its character, becomes a servitude in favor of the one over and
upon the other estate. And among these may be mentioned
the servitude of light and air, of supplying water, of drain,
and the like.
Though artificial in their creation, they have some of the
qualities of natural easements, as they pass with the separate
estates in the manner of natural easements, without being
mentioned in the deed. That wliat had been a simple use
or service, while the estates belonged to the same proprietor,
is by the law changed into a servitude at the moment
*of their separation, is founded upon the presumption [*17]
which the law raises of an agreement by both parties
to leave things in the same state into which they have been
put, if there is no stipulation for changing it. The law on
this subject, which will be found to be very analogous to that
which prevails in England and this country upon the division
of heritages, where one part has had the use and enjoyment
of the other,^ is declared in the Code, though it was borrowed
from the early coutumes of several of the provinces of France.
Articles 692 and 694 of the Code are the text upon which
several commentators have treated, when considering this
subject, among whom are Pardessus, Toullier, and Merlin.
The language of Art. 692 is : " An appointment by the
father of a family has the effect of writing in regard of con-
tinual and apparent servitudes." Art 694 : " If the owner
of two heritages, between which there exists an apparent
mark of servitude, dispose of one of the two heritages with-
out the contract containing any agreement relative to the
servitude, it continues to exist actively or passively in favor
of the property aliened, or upon the property aliened." ^
1 Post, sect. 3, pi. 26.
2 Code Nap., Barrett's trans). , Art. G92, 694 ; Lalaure, Traite des Servitudes
Re'elles, liv. 3, ch. 9 ; Pardessus, Traite' des Servitudes, 430, ed. 1829 ; 3 Toullier,
Droit Civil Fran9ais, 447 et seq. ; Merlin, Repertoire de Jurisprudence, tit. Servi-
tude, H 17-19; 3 Burge, Col. & F. Law, 439; 1 Fournel, Traite du Voisinage,
§ 110; La. Civ. Code, § 763; Lavillebeuvre v. Cosgrove, 13 La. Ann. 323; Sey-
mour V. Lewis, 13 N. J. 443.
22 THE LAW OF EASEMENTS AND SERVITUDES. [Cu. I.
Though the subject will be resumed in another part of the
work, it may be well to remark here that this doctrine of the
French law has obtained a place in the English Common law,
rather by way of illustration and analogy, than as a govern-
ing principle. In one case the Lord Chancellor took occasion
to say : " This comparison of the disposition of the owners of
two tenements to the destination du pere de famille is a mere
fanciful analogy, from which rules of law ought not to be
derived." ^
That servitude known to the civil law under the name of
" Non officiendi luminibus vel prospectui," was practically
acknowledged as one known to the common law, and as
binding upon the owners of an estate, by the courts of New
York, in a case where the owner of several house-lots lying
together sold one of them, and at the same time covenanted
with his vendee that the other land belonging to him in front
of that sold should be kept open for j)ublic use.^
[*18] *SECTION II.
INCIDENTS TO ACQUIRING RIGHTS OF EASEMENT, ETC.
1. Easements can only be acquired by Grant.
2. Licenses are revocable.
3. Modes of evidencing Grants of Easements.
4. How far Presumption of a lost Deed answers to Prescription.
5. Of creating Easements by Reservation.
6. Of mutual Grants and Reservations of Easements.
7. Of reserving an Easement out of Grantee's Land.
8. By what Form of Deed an Easement maj' be created.
9. 10. Easements pass with Estates to which appurtenant.
11. Easements when appurtenant to Easements.
12. Appurtenant Easements pass with the principal Estate.
13. Easements follow both dominant and servient Estates.
14. Easements not separable from Estates to which appurtenant.
15. Easements follow the several Parts of the principal Estates.
1. Before proceeding to examine the characteristics of the
1 Suffield V. Brown, 10 Jur. N. S. 111.
2 ]). 8, 2, 15 ; Hills v. Miller, 3 Paij^e, 254, 257 ; Barrow v. llichards, 8 Paige,
351 ; Ersk. Inst., foL cd. 356.
Sect. 2.] INCIDENTS TO ACQUIRING EASEMENTS. 23
several kinds of easements known to the common law, and
the rules applicable to these, it seems proper to consider cer-
tain general principles which are common to all, in order to
save the necessity of repetition. And first, as to the mode
of their acquisition.
These, being interests in land, can only be acquired by
grant, and ordinarily by deed, or what is deemed to be
equivalent thereto, a parol license being insufficient for the
purpose.^
2. A parol license to erect a dam upon another's
land, for *instance,^ or to cut and maintain a ditch [*19]
thereon for drawing water to the licensee's land, is
revocable at will at common law, and in one case was held
to be so after an enjoyment of eighteen years.^
The law of the several States will be found, it is believed,
to be the same as that just stated, so far as it applies to un-
executed licenses. But there is an exception in some of
them, in the case of executed licenses, when the licensee has
incurred expense in the execution of the same, equity in
such case holding, for purposes of remedy, that such shall
be deemed an executed contract. But in most of the States,
the doctrine that no permanent estate in lands can be created
by parol, prevails ; and it is accordingly held, that a licensee
holds his privilege of using or occupying the licenser's land,
whatever it is, strictly at the will of the licenser, who may
, 1 Morse v. Copeland, 2 Gray, 302 ; Bryan v. Whistler, 8 Barnew. & C. 288 ;
Cook V. Stearns, 11 Mass. 533 ; Dyer v. Sanford, 9 Mete. 395 ; Hewlins v. Ship-
pam, 5 Barnew. & C. 221 ; Miller v. Auburn & Syracuse R. R. Co., 6 Hill, 61 ;
Fentiman v. Smith, 4 East, 107; Nichols v. Luce, 24 Pick. 102; Mumford v.
Whitney, 15 Wend. 380; Middleton v. Gregorie, 2 Rich. 637; Pitkin r. Long
Island R. R. Co., 2 Barb. Ch. 221 ; Kenyon v. Nichols, 1 R I. 411 ; Collam v.
Hocker, 1 Rawle, 108; Fuhr v. Dean, 26 Mo. 116; Orleans Navigation Co. v.
Mayor of New Orleans, 2 Mart. 214, 229, 236 ; Cocker v. Cowper, 1 Crompt. M.
& R. 418; Wood i'. Leadbitter, 13 Mees. & W. 83S ; Adams v. Andrews, 15 Q.
B. 284; Thompson v. Gregory, 4 Johns. 81 ; Bird v. Higginson, 2 Adolph & E.
696 ; Somerset v. Fogwcll, 5 Barnew. & C. 875. Sedden v. Del. & H. Canal,
29 N. Y. 639.
2 Mumford v. Whitney, 15 Wend. 380 ; Cook v. Stearns, 11 Mass. 533,
» Cocker V. Cowper, 1 Crompt. M, & R. 418.
24 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
at his pleasure revoke the same. The subject is fully ex-
amined in 2 Am. Lead. Cases, 682-706. The States which
adopt the rule of equity above stated are Pennsylvania, In-
diana, and lowa.^ Those which retain the doctrine of the
common law are, among others, the following : New York,
Massachusetts, Connecticut, North Carolina, South Carolina,
Rhode Island, Wisconsin, Illinois,^ and New Hampshire;^
while in Vermont the question is left undecided in the case
cited below.* But the distinction which will hereafter be
more fully considered, between a license to do an act upon
the licenser's land, and that to do it upon the land of the
licensee, should not be overlooked, since the last, when exe-
cuted, is not revocable.^
3. The grant by which an easement is created may be evi-
denced in several ways. It may always be done by the pro-
duction of an existing deed. So it may be by prescription,
or a long enjoyment of the easement claimed, under circum-
stances which raise an implication of title originally acquired
by grant.
So the law often regards the enjoyment of an easement as
evidence that a deed once existed, though now lost, and gives
to this presumption the same effect in establishing a title as
if the deed were produced.
4. The latter mode of treating the enjoyment of an ease-
ment as evidence of a title to the same by deed, has taken
the place, in modern practice, of the ancient doctrine of pre-
scription. The chief difference between them consists mere-
1 Rerick v. Kern, 14 S. & R. 267 ; Lacy v. Arnett, 33 Penn. 169 ; post, p. *318 ;
Snowdcn v. Wilas, 19 Ind. 14; Stephens v. Benson, 19 Ind. 369; Wickersham
V. Orr, 9 Iowa, 260 ; Beatty v. Gregory, 17 Iowa, 114.
2 Seldcn i'. Del. & Hud. Canal, 29 N. Y. 639 ; Wolfe v. Frost, 4 Sand, ch. 72 ;
Drake r. Weils, 11 Allen, 141, 144; Foot v. N. H. & N. Co., 23 Conn. 223;
Bridges v. Purcell, 1 Dee. & Bat. (Law) 492, 497; Trammell v. Trammell, 11
Rich. (Law) 471 ; Foster v. Browning, 4 R. I. 47 ; Hazlcton v. Putnam, 3
Chand. (Wis.) 117 ; French v. Owen, 2 Wis. 250; Woodward v. Suly, 11 111.
1.57; 1 Wash. R. P. 411.
3 Carlcton v. Rcdington, 1 Foster, 308.
* Hall i: ClioO'er, 13 Verm. 150, 157.
5 Post, p. *560.
Sect. 2.] INCIDENTS TO ACQUIRING EASEMENTS. 25
\y in this. To constitute what was, technically, considered
a prescription, the use and enjoyment by which the same was
established were required to be beyond the memory of man.
So that it might always be rebutted by showing by testimony,
if such was the case, when the enjoyment of the right claimed
had its origin or beginning. Whereas, by raising a presump-
tion from a user and enjoyment, that a deed, now assumed
to be lost, was once given to the claimant granting the case-
ment claimed, the effect originally given to a prescription is
gained, after such enjoyment shall have been continued for
a length of time answering to the period of limitation be-
yond which one dispossessed of lands is not at liberty to re-
gain his seisin by making entry for that purpose. ^ In
such cases, in the language of Lord Mansfield, *" not [*20]
that the court really thinks a grant has been made,"
but they presume the fact for the purpose, and from the
principle of quieting the possession .^ And it may be re-
marked, that practically, in modern use, the distinction be-
tween the ancient doctrine of technical prescription, and the
modern one of a presumed grant, where the deed has been
lost, is not observed when speaking of titles acquired by
long-continued user and enjoyment ; the terms prescription
and prescriptive rights being now used to express the whole
class of titles, the evidence of which depends upon such user
and enjoyment.
Cases may arise where the owner of a parcel of land de-
pends for a right of way to the same, for instance, upon both
an implied grant and a grant of a prescriptive right. Thus,
where there were three lots of land. A, B, and C ; A, adjoin-
ing the highway, belonged to the same one who owned C, to
which he had a prescriptive right of way from A over B.
The owner of A and C sold the latter to a stranger, who
1 Morse v. Copeland, 2 Gray, 302 ; Gayctty v. Bethune, 14 Mass. 49 ; 1 Greenl.
Ev., ^ 17, note ; Sherwood v. Burr, 4 Day, 244 ; Rooker v. Perkins, 14 Wis. 82 ;
post, sect. 4, pi. 2.
2 Eldridge v. Knott, Cowp. 214 ; Campbell v. Smith, 3 Halst. 141.
26 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
had no access to the same except over A and B. It was held
that he thereby acquired a right of way by an implied grant
as one of necessity over A, and a prescriptive right over B,
as being appurtenant to C.^
5. In treating of acquiring an easement, like a right of
way in alieno solo, by grant, it is common to couple with it a
lili;e acquisition by reservation, although it is said not to be
technically true that a way can be created for tlie first time
by exception or reservation, since it is neither a parcel of the
thing granted, nor does it issue out of the thing granted.
A way, therefore, reserved, as the word is used in a popular
sense, is strictly an easement newly created by way of a
grant from the grantee in the deed of the estate to the grant-
or ; and the same is true of hawking, fishing, fowling, and
the like.2
[*21] *And it is said that " what will pass by words in
a grant will be excepted by like words in an excep-
tion." 3
Still, it is competent for a party who is the grantor of an
estate to create a right of way over the same, in his own
favor, either in gross or annexed to his other land, by a reser-
vation thereof inserted in his deed of the estate ; or it may
be done, though in terms it be an exception. Tlie court
say : " We consider it immaterial whether the easement for
the way intended to be established is technically considered
as founded on an exception, a reservation, or an implied
grant." *
If created by reservation, it must be to the grantor him-
self. And the case cited below, while it illustrates the dis-
tinction between an exception and a reservation in a grant,
will serve to show the construction which courts give to res-
ervations when of an easement. A granted to B a parcel of
1 Leonard v. Leonard, 2 Allen, 543.
'^ Durhiim & Sund. R. M. Co. v. Walker, 2 Q. B. 940 ; Wickliam v. Hawker,
7 Mecs. & W. 76 ; Doc v. Loek, 2 Adolph. & E. 705. See Dyer v. Sanford, 9
Mete. 395.
2 Shcpp. Toiuhst. 100. ^ Bowcn v. Conner, 6 Cush. 132.
Sect. 2.] INCIDENTS TO ACQUIRING EASEMENTS. 27
land, excepting one acre at a certain corner, " on which
there is a tannery," and reserved to himself and his use " a
certain well and water-works laid down for the purpose of
supplying the tannery aforesaid with water." It was held
to create an easement in the granted land in favor of the
part excepted, to which it became appurtenant, and it passed
with the acre through successive grantors as incident or ap-
purtenant to the same. Nor was the use of the water re-
stricted to the tannery, but was a general reservation of the
right of water. ^
But easements often pass by construction, by grant which
the law would not reserve by implication. As where one
granted land which was flowed by a dam on his own land, it
was held that he did not impliedly reserve a right to flow it.
Whereas, if he granted or devised the mill or land on which
the dam stood, he would grant the right to flow the land as
then flowed by the dam.^
In respect to whether the reservation is of a perpetual
interest, like a fee, in the easement reserved, the question
seems to turn upon whether it is a personal right, an ease-
ment in gross, or one for the benefit of the principal estate
and its enjoyment, whoever may be the owner. In the latter
case, it is held to be permanent right appurtenant to the
principal estate in the hands of successors or assigns, with-
out words of limitation. The courts of Maine treat such a
reservation as an exception, to obviate the objection.^
6. So where tenants in common divided their estates, and
in the deed of one part the grantor reserved a right of way
over the granted part for the benefit of the other jjAi't, it was
held to create an easement in favor of the latter, which ran
with it into whosever hands it should come.'^
1 Borst V. Empic, 1 Seld. 33.
2 Burr V. Mills, 21 Wend. 272, 274.
3 Kiirmuller v. Krotz, 18 Iowa, 359; Winthrop v. Fairbanks, 41 Maine, 312;
Smith V. Ladd, 41 Maine, 320 ; Bowcn v. Connor, 6 Cash. 132. In Borst v. Era-
pie, sup., the reserve was to the grantor and his use without the word " heirs."
* Mendell v. Delano, 7 Mete. 176 ; Smith v. Higbee, 12 Vt. 113 ; Karmuller v.
Krotz, 18 Iowa, 359.
28 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
So where one granted land to another, which adjoined
other lands which belonged to him, and reserved in his deed
a right of way across the parcel granted, in favor of his
other lands, and at the same time gave to the parcel
granted a right of way across these other lands of the
grantor, it was held that he thereby created rights of way
appurtenant to both the parcels, which passed with these
parcels in the subsequent conveyances thereof, whether men-
tioned or not in the deeds as existing easements.^
7. And this case is put by Shaw, C. J., in Dyer v. San-
ford, above cited, by way of illustration. There are three
adjoining tenements. Two of them, the first and third, be-
long to A ; the middle one to B. B grants to A the right by
deed to drain No. 1, through No. 2, into and through No. 3,
into a common sewer ; and inserts in the deed, that he, B,
is to have a right to enter his drain into the drain of
[*22] A, *and thereby to drain No. 2 through No. 3, into
the common sewer. If A accepts this deed, and con-
structs a drain from No. 1 to and through No. 3, B thereby
acquires a right to enter his drain into the same, though it
cannot technically be regarded as a reservation.^
So, in an early case, where the owner of land " granted
and agreed with A. B., his heirs and assigns, that it should
be lawful for them at all times afterwards to have and to use
a way by and through a close," &c., it was held to be an
actual grant of a way, and not a covenant only, for the en-
joyment of such right.^
8. It is held in Maryland, that, while a right of way de
novo could be created by a deed of grant or lease, it could
not be by deed of bargain and sale, though an existing right
of way could be passed or transferred by a deed of bargain
and sale, and required all the solemnities necessary to pass
estates by such deeds.*
1 Brown v. Thissell, 6 Cash. 254. 2 Dyer v. Sanford, 9 Mctc. 395, 405.
3 Holmes V. Seller, 3 Lev. 305 ; Gibert v. Peteler, 38 Barb. 514.
* Hays V. Riehardson, 1 Gill & J. 366.
Sect. 2.] INCIDENTS TO ACQUIRING EASEMENTS. 29
9. If now these two modes of acquiring easements, by
grant and prescription, are considered separately, the sub-
ject of a title by grant also divides itself into express grants,
and grants by implication or construction of law.
Before, however, pursuing the subject under these several
heads, it may be well to state, that, when an easement has
been acquired by either of these modes in favor of a dom-
inant over a servient estate, it passes to the respective own-
ers of these estates as an easement in favor of the one, and
a servitude or burden upon the other, into whosever hands
the respective estates may come. The easement, in such
case, becomes appendant or appurtenant, as it is called, to
the estate in whose favor it has been created or acquired,
and, as the law expresses it, runs with it. The terms ap-
pendant and appurtenant are defined in the Termes de la
Ley as " things that by term of prescription have be-
longed, *appertained, and are joined to another prin- [*23]
cipal thing, by which they pass and go as accessory
to the same principal thing," ttc. And it is said that, " to
make a thing appendant or appurtenant, it must agree in
quality and nature to the thing whereunto it is appendant
or appurtenant, as a thing corporeal cannot properly be ap-
pendant to a thing incorporeal, nor a thing incorporeal to a
thing corporeal." But it is not true that the term is appli-
cable only to things acquired by term of prescription. Thus,
in the cases above cited, in the first, one sold a house-lot in
front of which was an open area belonging to him, upon
which he covenanted that no house should be erected, but
that the same should be always kept open as public prop-
erty. Being a part of the transaction of the purchase and
sale, and a consideration for the same, it was held to create
an easement in favor of the lot thus sold, and that the first ,
grantee thereof, having conveyed the same to another, could
not release it to the vendor or his assigns, or authorize them
to erect buildings upon this open space. Nor would the
easement be destroyed by a division of the estate to which
80 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
the easement belonged.^ In the other, A granted to B twenty
acres of land, and also a right to dig ore in another parcel
of ten acres. And the question was whether the conveyance
of the twenty acres carried with it a right to dig ore in the
other parcel. And it was held that it did not, but that the
right to dig ore was an incorporeal hereditament and a ser-
vitude in and upon the ten acres, but not appendant to the
twenty acres, since the enjoyment of the one was in no wise
necessary to the enjoyment of the other.^
10. A recent case in Massachusetts will serve, also, to il-
lustrate what is requisite to create an easement, and render
the same appurtenant to an estate, and to show that a
[*24] right *does not necessarily become appurtenant to an
estate, although affecting the same, and granted to or
reserved by the tenant thereof. In that case, A owned two
estates adjoining each other, upon one of which was a dwel-
ling-house having a projecting part in the rear of one story
in height. He sold the latter, subject to a restriction that
the owner thereof should never raise the projection any
higher than its then present condition. After that he sold
the other estate to the plaintiff, and then executed a release
to the first purchaser of the restriction upon his parcel, and
the latter proceeded to raise the projecting part of his house
another story. The plaintiff brought a bill in equity to re-
strain him, on the ground that the right of enjoying his es-
tate free from such an obstruction, which originally belonged
to his grantor, passed as an easement therewith when he
purchased it. But the court held that there was nothing
in the deed of the first estate which showed that the restric-
tion was intended to enure to the benefit of the estate now
owned by the plaintiff, nor could he, therefore, as the owner
thereof, avail himself of a right which his grantor had se-
1 Hills I'. Miller, 3 Paige, 254 ; Ayl. Pand. 312 ; D. 8, 4, 12 ; Whitney v, Lee,
1 Allen, 198; Whitney v. Union, 11 Gray, 359 ; Brouwer v. Jones, 23 Barb. 160 ;
Parker v. Nightingale, 6 Allen, 341.
'^ Grubb V. Guildford, 4 Watts, 223, 244, 246.
Sect. 2.] INCIDENTS TO ACQUIRING EASEMENTS. 31
cured to liimself without rendering it appurtenant to the
estate.^
Under tlie civil law, services did not admit of a division,
and therefore a way or a road through a man's estate
cannot be bequeathed in part nor taken away in part,
for a service is total, in toto /undo, and total in every part
thereof.^
11. There is, moreover, a kind of appendency or appurte-
nancy of one easement to and upon another easement, in
some cases, which is sometimes called a secondary easement.
It passes with the principal easement as being necessary or
convenient to the enjoyment of the same.
Thus in Stenhouse v. Christian, where there was a grant
of a way for the purpose of carrying coals across a
*certain parcel of land witJi wagons, wains, and other [*25]
carriages ; it was held that the grantee, as an incident
to the grant, had a right to make a framed wagon-track along
the course of the way indicated in the grant.^
So in Prescott v. Williams, the right to enter upon the
land of another, and clear out obstructions in a watercourse
which a mill-owner above had a right to enjoy through such
land, was held to be an incident to fuch natural easement in
the nature of a secondary easement.*
So the grant of a right of pasturage carries the right of
way to and from the pasture. So that of drawing water, or
of fishing or hunting, gives a right of access and egress to
and from the estate in which it is to be enjoyed.'^
But after all, instead of these ancillary rights being some-
1 Badger v. Boardman, 24 Law Rep. 303 ; Parker v. Nightingale, 6 Allen,
348.
2 Ayl. Band. 311 ; Dig. 8, 1, 6.
3 Senhouse v. Christian, 1 T. R. 560; D. 8, 2, 19; Ibid. 8, 4, 11, 1; post,
chap. 3, sect. 1, pi. 19; 2 Fournel, Traite' du Voisinage, 404; 3 Toullier, Droit
Civil Fran^ais, 500.
* Prescott V. Williams, 5 Mete. 429 ; Prescott v. White, 21 Pick. 341 ; Bract.,
fol. 232.
6 Bract., fol. 232 a; Code Nap., Art. 696; 2 Fournel, Traite' du "Voisinage
404.
32 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
thing appurtenant to easements, they seem rather to consti-
tute an essential part or element of the principal easement
itself, and will be further treated of when the subject of inci-
dents of grants, and what is embraced therein, comes to be
considered. 1
12. It may also be stated in this connection, in order to
save repetition, that if an easement, like a right of way over
another's land, becomes appurtenant to an estate, it passes
with the grant of the principal thing, whether such grant, in
terms, embraces privileges and appurtenances or not ; and
this, whether it is necessary to the enjoyment of the granted
estate or not.^
[*26] *13. Where, therefore, one grants or reserves a
right of easement over one parcel of land in favor of
another, such easement, by such act of creation or annexation,
would become incident and appurtenant to such estates re-
spectively, and pass as appurtenant in after conveyances, by,
or even without, the word appurtenances, so long as such
estates should subsist as distinct estates in different proprie-
tors. Nor could the easement be separated from the prin-
cipal estate, except by him who has a disposing power over
the estate.^ • •
But this rule does not apply where there is a convey-
ance of a specific parcel of land carved out of a larger one
held by the grantor, and described by metes and bounds.
In such case, nothing would pass as parcel of the granted
premises which was a matter of ease and convenience only,
except what is included within the boundaries expressed
1 Post, sect. 3, pi. 5.
2 Kent V. Waite, 10 Tick. 138 ; Atkins v. Bordman, 2 Mete. 4.57 ; Bcaudely v.
Brook, Cro. Jac. 189 ; Jaekson v. Hathaway, 15 Johns. 447; Brown v. Thissell,
6 Cash. 254 ; Underwood v. Carney, 1 Cush. 285 ; Smith v. Higbee, 12 Vt. 123 ;
Staple V. Heydon, 6 Mod. 1 ; Grant v. Chase, 17 Mass. 443 ; Lawton i;. Rivers,
2 M'Cord, 445 ; Piekering v. Stapler, 5 Serg. & R. 107 ; United States v. Apple-
ton, 1 Sumn. 402; Morgan v. Mason, 20 Ohio, 401 ; Harris v. Elliott, 10 Peters,
54; Karmuiler v. Krotz, 18 Iowa, 360.
2 Kitger v. Parker, 8 Cush. 145 ; French v. Braintrec Manufacturing Co. 23
Pick. 216.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 33
in the deed.^ Nor does it apply to any but existing case-
ments. ^
14. And though a man may acquire an easement in gross,
like a right of way over another's land, separate and distinct
from the ownership of any other estate to which it is append-
ant, yet if his right to such way result from his ownership of
a parcel of land to which it is appendant, he cannot by grant
separate the easement from the principal estate to which it
is appendant, so as to turn it into a way in gross, in the hands
of his grantee.^
15. It may, accordingly, be stated as a general principle,
that if an easement has become appurtenant to an estate, it
follows every part of the estate into whosever hands
the *same may come by purchase or descent ; " qua- [*27]
cunque servitus fundo debitur, omnibus, ejus partibus
debitur,^^ provided the burden upon the servient estate is not
thereby increased.*
SECTION III.
OF ACQUIRING EASEMENTS BY GRANT.
1. How Easements may be created by grant.
2. Easements never presumed to be in gross.
3. No one but the owner of the soil can grant an Easement.
4. No tenant in common can create Easements in Estates in common.
5. Implied grants of Easements.
6. Easements of necessity result from grants or reservations.
7. Nichols V. Luce. All Easements the result of grants.
8. Easements by grant implied from having been used.
9. Cases of Easements implied, as forming a part of the thing granted.
1 Grant v. Chase, 17 Mass. 443.
2 Russell V. Scott, 9 Cow. 279.
3 Acroyd v. Smith, 10 C. B. 164 ; Year B. 5 Hen. VII., fol. 7, pi. 15, per Fair-
fax, J. ; Woolr. Ways, 16; Garrison v. Rudd, 19 111. .558.
* Orleans Navigation Co. v. Mayor of New Orleans, 2 Mart. 233 ; Lewis v.
Carstairs, 6 Whart. 193 ; Watsou v. Bioren, 1 Serg. & R. 227 ; Case of a Pri-
vate Road, 1 Ashm. 417 ; Lansing v. Wiswall, 5 Denio, 213 ; Garrison v. Rudd,
19 III. 558 ; post, sect. 3, pi. 38 ; 3 TouUier, Droit Civil Fran<;ais, 494 ; D. 8, 3,
23,3.
3
34 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
10. Cases where a grant carries an Easement in or parcel of an estate.
11. Cases where Easements are raised by grant, and not by reservation.
12. Reference had to the circumstances of estates to explain grants.
13. Only existing Easements pass as incident to grants of estates.
14. Appurtenant Easements limited to old existing rights.
15. Effect of grant of an estate with "the ways now used," &c.
16. "Privileges and appurtenances " does not create an Easement.
17. Effect of separating a mill from land, upon the Easement of water.
18. When the grant of a mill-power implies the grant of land.
19. Grant of the use of water not a right to foul it.
20. Hull V. Fuller. How grant of mill-rights limited and defined.
21. Nothing passes by implication beyond what grantor can convey.
22. Easements specially granted for one purpose not to be used for another.
23. Easements created or affected by divisions of heritages.
24. Richards v. Rose. Mutual support of houses, sold separately.
25. Destinatio dupcre, tfc. Easements implied by grant.
25 a. Pyer v. Carter. How far authority.
26. Continuous Easements used with the whole, pass with parts of a heritage.
27. Elliott V. Rhett. Artificial Easements becoming part of a heritage.
28. Lampman v. Milks. Effect of a change in a heritage upon its parts.
29. Light and air of one part, derived from another part of a heritage.
30. Support of one part of a heritage passing as incident to another.
31. Thayer v. Payne. Right of drain from one part of a heritage over another.
32. Hinchcliffe v. Kinnoul. Easements passing because in use.
[*28] *33. Pheysey v. Vickary. Only what is necessary passes with parts of a herit-
age.
34. Only continuous and apparent Easements pass on dividing heritages.
35. Johnson v. Jordan. When a drain will pass or not, though in use.
36. State of premises when sold, fixes the rights of the several owners.
37. Brakely v. Sharp. Rule as to Easements, where estates are divided.
38. As to Easements extending to every part of a heritage.
39. Easements connected with one parcel not to be used with another.
40. Law of Louisiana as to effect of dividing heritages.
41. An Easement for a special purpose, limited to that only.
42. In what cases the benefit of one estate to another becomes an Easement.
43. How far Easements are created or affected by estoppel.
44. Equitable Easements, how created and enforced.
1. If now we recur to the mode of creating an easement
by grant, it may be by deed in express terms, as where one
owning an estate grants to the owner of another estate a
right to enjoy certain privileges in or out of the grantor's
estate, which does not give tlie grantee a right to enjoy the
estate itself by exclusive or permanent occupation. So it
may be created by a covenant of the owner of one estate with
the owner of another estate, that he should have a right to
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 35
enjoy certain profits or privileges out of the former, as has
already been stated.^ And Pollock, C. B. says : " It cannot
be denied, that if a man builds a house, and there is act-
ually a way used or obviously and manifestly intended to
be used by the occupiers of the house, the mere lease of the
house would carry with it the right to use the way, as form-
ing part of its construction. And so if there were publicly
exhibited, prior to a bill of sale of it, a model of the house
and its appurtenances describing the right of way, that would
have the same effect. So if a plan were thus exhibited de-
scribing the right of way, and a contract of purchase or lease
were entered into with reference to that plan, that might
have the same effect." ^ Or this may be done by a grant of
one parcel of the grantor's land to another, and reserving
similar privileges in and out of the grantor's premises to
himself as owner of the remaining parcel, or by granting
such privileges with the granted parcel, out of the parcel
. so retained. A grant of a license to one and his heirs to
hunt upon the licenser's land must, in order to be effectual,
be by deed. But a license for a single time may be good,
though by parol only.^ And where an easement is granted
or reserved in express terms by deed, the only question ordi-
narily open for consideration concerns the proper construc-
tion of the language of the deed.* Nothing, however, passes
as incident to the grant of an easement, but what is requi-
site to a free enjoyment of the privilege granted.^ An ease-
ment may be created subject to a condition subsequent, and
whether it is so, depends, of course, upon the construction
of the deed. But if so created in connection with and ap-
purtenant to land granted, and the condition bo broken, it
1 Clark V. Way, 11 Rich. Law, 624 ; ante, p. *7 ; Gibert v. Peteler, 38 Barb. 484,
514; Parker v. Nightingale, 6 Allen, 341 ; Brouwer v. Jones, 23 Barb. 153;
post, p. *63; Green v. Creighton, 7 R. I. 1.
2 Glave V. Harding, 3 H. & Norm. 944.
8 Wickham v. Hawker, 7 I\I. & W. 79 ; post, p. *8.
* Shepp. Touchst. 88.
6 Bean v. Coleman, 44 N. II. 544 ; Lyman v. Arnold, 5 Mason, 198 ; Maxwell
V. M'Atee, 9 B. Mon. 20 ; 3 Kent, 419, 420.
36 THE LAW OF EASEMENTS AND SERVITUDES. [Cu. I.
does not form the ground of forfeiture of the land, nor can
the easement be recovered from the grantee by a writ of
entry, independent of the land to which it is incident.^
The concurrence as well of the owner of the heritage
which it is wished to charge with the servitude, as of him
in favor of whose heritage it is desired to create it, is neces-
sary in order to impose a servitude upon one in favor of the
other. And he only can thus impose a servitude who is of
a capacity to act freely, and has a full right of disposal of
the estate itself. Neither a minor, therefore, nor a married
woman, while under the control of her husband, can impose
a servitude upon a heritage.^ Nor can a wife by her admis-
sions make evidence that it exists.^ Tlie acquisition of ease-
ments, moreover, whether with or without the will of the
owner of the servient estate, followed the analogy of the
acquisition of corporeal things. It required in the first place,
the owner's voluntary act of creating or imposing the servi-
tude, and in the next place something answering to the
" traditio " of the civil law of a corporeal thing. Servi-
tudes, however, might be acquired without the consent of
the owner of the servient land, by prescription.'^
2, Though an easement, like a right of way, may be cre-
ated by grant in gross, as it is called, or attached to
[*29] the *person of the grantee, this is never presumed
when it can fairly be construed to be appurtenant to
some other estate ; and if it is in gross, it cannot extend
beyond the life of the grantee.^ Nor can it be granted over,
being attached to the person of the grantee alone. Whether
the thing granted be an easement in land or the land it-
self, may depend upon the nature and use of the thing
1 Chapin v. Harris, 8 Allen, 594. See Watkins v. Teck, 13 N. H. 375 ; Gray's
case, 5 Co., 78.
2 Lalaure, Trait^ des Servitudes Reelles, 34 ; post, sect. 4, pi. 69.
3 M'Gregorr. Wait, 10 Gray, 74.
* G liter. Brae. c. 15.
<> Case of Private Koad, 1 Ashm. 417 ; Acroyd v. Smith, 10 C. B. 164; Gar-
rison V. Rudd, 19 111. 558 ; Woolr. Ways, 10.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 87
granted. If it be noii-contiuuous, or to Ijc used only occa-
sionally, like a way, the grant creates only an incorporeal
hereditament, an easement and not the land.^
So an easement like that, for instance, of drawing water
from another's well, may be limited to certain hours, or a
right of way may be confined to a part of the day, or to a
certain place .^
3. An important principle is to be remembered, that no
one can grant an easement out of land in favor of another,
unless he has the entire interest in the soil. If, for instance,
there are tenants in common of land, or several persons
having a common interest in an estate, neither of them
can, by grant, create an easement therein in favor of a
stranger. Thus where a number of persons were proprie-
tors of the channel of a river as trustees, under an act of
Parliament, and a major part of the sharers in the profits
of the river granted to another a right to construct and use
a channel through the bank thereof, the court say : " The
concurrence of all the proprietors of the river is necessary
to the transfer of any right or interest in it The gran-
tee, under his lease, might at any moment be ousted by any
one of the other proprietors, and therefore he was in fact
invested with no definite, permanent, or assignable right
under it The grant is merely the license of two out
of many co-proprietors to do certain acts, and enjoy certain
privileges, and that cannot be considered as a hereditament
which would pass, either as respects its privileges or its liabil-
ities, to the assignee of the grantee Where there is not
an entire interest in the soil vested in the grantor, he cannot
grant an easement arising out of it to another." ^
*4. Notwithstanding the strong language of the [*oO]
court in the above case, it perhaps might leave some
little doubt whether, from the peculiarity of the joint owner-
1 Jamaica Pond v. Chandler, 9 Allen, 16-4.
2 3- Kent, Comm. 136.
3 Poitmore v. Bunn, 3 Dowl. & U. 145.
38 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
ship of the property in that case, the doctrine would apply
with full force in the common case of tenants in common.
And the court in Mendell v. Delano ^ seem disposed to waive
the question whether one tenant in common can grant a right
of way over the common estate to a stranger. But it seems
to be settled, elsewhere, that he cannot.^ And this is con-
sistent with the well-settled doctrine that one tenant in com-
mon cannot properly convey a distinct part of the land held
in common to a stranger by metes and bounds.^ One tenant
in common has no right to flow the common land though by
a dam erected upon his own several estate.^
And in the Civil Code of Louisiana there is an express
declaration, that " the co-proprietor of an undivided estate
cannot impose a servitude thereon without the consent of his
co-proprietor."^
But it seems that one tenant in common of an estate may
acquire an easement in respect to it which will enure in favor
of his co-tenants as well as himself.^
So minors through their guardians, and wives through their
husbands, may acquire easements in favor of their estates.'^
5. The subject of acquiring casements by implied grant
opens a wide field of inquiry, in which it would be necessary
to refer to a great variety of decided cases. But, for the
present, a general statement of principles only will be at-
tempted, which apply to easements as interests in
[*31J lands, *leaving their application, in detail, to their
connection with the several classes into which ease-
ments divide themselves.
1 Mendell v. Delano, 7 Mete. 176.
- Lalaurc, Traite des Servitudes Reelles, 38; Collins v. Prentice, 15 Conn.
423 ; Marshall v. Trumbull, 28 Conn. 183 ; Watkins v. Peck, 13 N. H. 360-381 ;
post, sect. 4, pi. 76.
8 Bartlct V. Harlow, 12 Mass. 348 ; Varnura v. Abbot, 12 Mass. 474.
* Great Falls v. Worster, 15 N. H. 460.
6 La. Civ. Code, Art. 734. See D. 8, 1, 2 ; Ibid. 8, 2, 26 ; 3 TouUier, Droit
Civil Francais, 418, 420.
*' 3 Toullier, Droit Civil Franrais, 424 ; Lalaure, Traite des Servitudes
Kcelles, 40.
7 3 Toullier, Droit Civil Franrais, 423.
Sect. 3.] ACQUIRING EASEiMENTS BY GRANT. 39
The broad principle upon which such easements are cre-
ated, or pass, by implication, by the grants of the estates to
which they are or are made appurtenant, rests upon the fa-
miliar maxim, Cuicunque aliqids quid concedit, concedere vi-
detur et id, sine quo res ipsa esse non potuit}
But nothing except what is properly appurtenant to an es-
tate passes with it, unless forming a parcel of the granted
premises. And where, therefore, a mill was granted with its
appurtenances, it did not convey the soil of a way which had
been immemorially used with it, because land cannot be ap-
purtenant to land. But it did pass the easement of a way as
being properly an appurtenant to the mill.^
The grant or reservation of a " way " or " road," without
other words of description, carries an easement only, and not
the fee in the soil.^
Nor does the grant of a right to dig a canal through one's
land, carry with it a right of property in the materials exca-
vated, unless such material may be used in constructing the
canal. How far it may belong to the grantee in such case is
not decided in the case cited.*
The doctrine is a general one, that the grant of a thing
carries all things as included, without which the thing grant-
ed cannot be enjoyed. By which are to be understood things
incident and directly necessary to the thing granted. The
case stated by Plowden, as illustrating this, is the grant of
one's trees standing upon his own land. The grantee may,
as a part of the grant, enter upon the land and cut them
down and carry them away. And Twisden, J., in Pomfret
V. Ricroft, says : " When the use of a thing is granted, eve-
ry thing is granted by which the grantee may have and enjoy
1 Broom, Max. 362 ; Liford's case, 11 Rep. 52 ; Sliepp. Touchst. 89 ; Thomp-
son V. Banks, 43 N. H. .540.
2 Leonard v. White, 7 Mass. 6. See Tabor v. Bradley, 18 N. Y. 109 ; post,
pi. 25, a.
2 Jamaica Pond v. Chandler, sup. ; Graves v. Amoskeag Co., 44 N. H 465
Leavitt v. Towle, 8 N. H. 97.
* Lyman v. Arnold, 5 Mason, 197.
40 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
such use, as if a man gives me a license to lay pipes in his
land to convey water to my cistern, I may afterwards enter
and dig the land to mend the pipes, though the soil belongs
to another and not to me." ^
6. It is upon this principle that ways of necessity pass with
lands when granted, and although ordinarily treated of as
a class distinct from those created by grant, they are, in fact,
acquired in that way, as being incident to the principal thing
granted.^ And the same principle applies to cases of devises of
lands. One devisee, if necessary, may pass over land devised
to another, in order to gain access to that which has been
devised to himself.^
So if one grant a parcel of land which is so connected
with another parcel belonging to him that he can
[*32] have * access to the latter only over the granted par-
cel, the law reserves to him a right to pass over the
same, as a way of necessity. But it must be strictly a way of
necessity, and great convenience will not be sufficient.*
This principle, however, is subject to this limitation, that
if the purposes for which the land is granted are inconsistent
with the exercise of such reserved way, no such right of way
will be raised by implication in favor of the grantor, on the
idea of necessity.^
1 Plowd. 16 o; Pomfret v. Kicroft, 1 Saund. 321; HinchclifiFe v. Kinnoul, 5
Bing. N. c. 1 ; Darcy v. Askwith, Hob. 234.
2 BuUard v. Harrison, 4 Maule & S. 387 ; Gayetty v. Bethiine, 14 Mass. 49;
Lawton v. Rivers, 2 M'Cord, 445 ; Turnbull v. Rivers, 3 Ibid. 131 ; Cooper v.
Maupin, 6 Mo. 624 ; 3 Kent, Comm. 423 ; 1 Wms. Saund. 323 a ; Atkins v.
Bordman, 2 Mete. 457; Beaudely ». Brook, Cro. Jac. 189; Staple v. Heydon,
6 Mod. 1 ; Nichols v. Luce, 24 Pick. 102 ; Kimball v. Cocheco R. R. Co., 7 Post.
448 ; Williams v. Sanford, 7 Barb. 312.
3 Pearson v. Spencer, 1 B. & S. 580 ; s. c, 3 B. & S. 761 ; Tracy v. Ather-
ton, 35 Verm. 53.
* Brigham v. Smith, 4 Gray, 297 ; Collins v. Prentice, 15 Conn. 39 ; Pierce
V. Sellech, 18 Conn. 321 ; Lawton v. Rivers, 2 M'Cord, 445 ; Cooper v. Maupin,
6 Mo. 624 ; Clark v. Cogge, Cro. Jac. 170; Smith v. Kinard, 2 Hill, So. C. 642 ;
Packer v. Welsted, 2 Sid. 39, HI; 3 Kent, Comm. 422 ; Woolr. Ways, 20 ;
Pinnington v. Galland, 9 Exch. 1 ; Dutton v. Tayler, 2 Lutw. 1487 ; Chichester
V. Lcthbridgc, Willcs, 71, note; Staple v. Heydon, 6 Mod. 1 ; Leonard v. Leon-
ard, 2 Allen, 543 ; Ilowton v. Frearson, 8 T. R. 50.
6 Seeley v. Bishop, 19 Conn. 128.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 41
So where one owns two estates, like dwelling-houses, and a
drain or way, for instance, is made and used from one over
or through the other, and the same is necessary for the prop-
er enjoyment of the first, and the owner convey the first to a
stranger, he thereby grants a right to maintain such drain,
or to use such way, in connection with tlie granted premises ;
which is but a single illustration of a pretty widely extended
principle applicable to cases of easements passing with one of
two parts of an inheritance, where the same has been divided
by grant or partition.^
And in anticipation of what will be said in another connec-
tion, it may be remarked that the principle here stated does
not apply to easements which are not in their nature contin-
uous, unless they are ways of necessity.^ Nor, in the absence
of express words, does it extend to such easements as are sep-
arable from the principal thing granted or reserved. It ap-
plies to cases where one tenement is necessarily dependent
upon another, like two houses dependent on each other for
support.^
7. The law upon this subject is fully considered and ex-
plained in Nichols v. Luce, above cited, and may be thus
summarily stated. All easements are, in fact, gained by
grant, the only difference in this respect being the mode of
proof. Thus prescription presupposes and is evidence of a
previous grant. While what is called necessity is only a cir-
cumstance resorted to in order to show and explain
the *intention of the parties, in raising an implica- [*33]
tion of a grant. The deed of the grantor creates the
way, when it is one of necessity, as much as it does where
it creates it by express grant. One is by implication, the
other is a grant in terms.^
1 Hills V. Miller, 3 Paige, 254 ; 2 Washb. Real. Prop. 32 ; Alston v. Grant, 3
Ellis & B. 128 ; Thayer v. Payne, 2 Gush. 327 ; Pyer v. Garter, 1 Hurlst. & N. 916.
2 Polden V. Bastard, 4 B. & S. 257 ; Pearson v. Spencer, 1 B. & S. 580; s. c,
3 B. & S. 761 ; Dodd v. Burchell, 1 H. & Golt. 113.
3 Suffield V. Brown, 10 Jur. N. S. HI.
* Nichols V. Luce, 24 Pick. 102; Collins v. Prentice, 15 Gonn. 39; Atkins v.
Bordman, 2 Mete. 457. •
42' THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
8. On the other hand, easements often pass by implica-
tion, from the manner in which the grantor of the premises
may have used the same, if reference is made to such use in
his deed. Thus, if having two parcels, he shall have used a
way over one in a definite and accustomed manner, and shall
grant the parcel witli which such way has been used to a
third person, with " all ways," it would carry a right to use
this way across the grantor's other land. The use, when
proved, defines what " way" it is that was intended by the
deed.i
It may be remarked, however, that the same rule of con-
struction is applied in the case of the grant of a house " with
the lights," as of land " with the ways." One who should
sell his house in that form, would not have a right to ob-
scure the windows by building on his adjacent vacant land.
Whereas, if he had such a lot, and conveyed it before he did
his house, without reserving the right of light to the win-
dows to the same, the vendee might build upon such lot,
though he thereby wholly obscured the light of these win-
dows.2
9. A few cases may be referred to by way of illus-
[*34] tration * of what may pass by implication by a grant,
as part of, or appurtenant or incident to, the principal
thing granted. Thus, the grant of a mill carries the head of
water by which it is carried ; ^ so it carries a right to flow the
grantor's land,* and the whole right of water which had been
previously used with it by the grantor ;^ so it carries the flow
of the water in the race-way .^ And if it draws its principal
supply of water from a reservoir upon the same stream, at a
1 Staple V. Hcydon, 6 Mod. 1 ; Atkins v. Bordman, 2 Mete. 457 ; Kooystra v.
Lucas, 5 Barncw. & Aid. 830; Com. Dig. Chimin, D. 3 ; Plant v. James, 5 Bar-
new. & Ad. 791 ; Oakley v. Adamson, 8 Bing. 356; Hinchclitfe v. Kinnoul, 5
Bing. N. c 1 ; Gayetty v. Bcthune, 14 Mass. 49.
2 Tenant v. Goldwin, 2 Ld. Raym. 1089.
8 Rackley v. Sprague, 17 Mc. 281.
* Ilatliorn v. Stinson, 10 Me. 224.
6 Strieklcr v. Todd, 10 Serg. & R. 63; Vickcrie v. BuswcU, 13 Me. 283.
<* Wetmore v. White, 2 Caincs, Ciis. 87.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 43
distance above the mill, a conveyance of the mill carries also
the upper dam and reservoir as incidents, inasmuch as the
grant of the mill would be practically inoperative without
these. ^ So when one granted to another a right to ITave the
washings of ore from his ore bed pass into the stream which
ran through the grantor's meadow and be deposited upon the
meadow, and the effect in time was to raise the meadow so
much that the dirt washed from the ore passed off the meadow
on to an adjoining pasture of the grantor, it was held to come
within the incidents of the grant, and therefore no violation
of the grantor's right, although the grant specified only the
meadow.^ So the devise of a mill carries buildings, land,
and privileges necessary to its use.^ So the exception from
the grant of a larger estate, of ^' the brick factory," was held
to include with such factory the land on which it stood, and
the water privilege belonging to the same.^ The grant of
half a dam conveys with it half the water-power ; ^ so the
reservation of a " mill-site " embraces not only the land of
such site, but also a right of flowage of a pond for the use of
the mill.^ So, in several cases, the grant of a house carries
with it the right to enjoy the unobstructed use of light there-
with.''
10. But the grant of a mill-site, with the right to erect
and maintain a mill thereon, is a grant of land, and not an
easement in land.^ And the grant of " a mill " would not
only pass the land on which it stands, but it may embrace
the free use of the head of water existing at the time of the
grant, and the rights of way and all other easements which
1 Perrin i'. Garfield, 37 Verm. 312. See post, p. *42, and Brace v. Yale, there
cited.
2 Bushnell v. Proprietors, &c., 31 Conn. 150.
3 Whitney v. OIney, 3 Mason, 280.
* Allen V. Scott, 21 Pick. 2.5.
6 Runnels v. Bullen, 2 N. H. 532.
6 Oakley v. Stanley, 5 Wend. 523 ; Lampman v. Milks, 21 N. Y. 505 ; Stack-
pole V. Curtis, 32 ]Me. 383.
^ Swansborough v. Coventry, 9 Bing. 305 ; Durel v. Boisblanc, 1 La. Ann. 407.
8 Farrar v. Cooper, 34 Me. 394.
44 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
have been used with the mill, and which are necessary to the
enjoyment of it. And it was held that the use of a mill-
yard, so long as the mill continued to be occupied,
[*35] 'passed as an easement thereto by the assignment of
the mill.i So the devise of a mill was held to carry
the appurtenances used by the testator in his lifetime, such
as the dam, water, and race, and the land before the mill
used for loading and unloading grain, &c., with teams.^
The grant or reservation of a " mill-privilege " or a " mill-
site " is understood to carry the land itself, and not a mere
easement in the land. But with it would pass the right to
the use of the water, with the use of the appendages belong-
ing to the mill ; and it was left to the jury to determine the
extent of the mill-yard, the jjse of which passed as incident
to the mill standing on the privilege.^
In the grant of a parcel of land, part of a larger estate, the
grantor excepted out of his grant what was then a tan-yard,
and reserved " a well " upon the granted premises, " and
waterworks laid down for the purpose of supplying the tan-
nery aforesaid with water." It was held to be a general
reservation of an easement to draw water thereby for any
purposes, and not limited to the use of the tan-yard.^
The devise of a mill-privilege with privileges and appur-
tenances, passes all the privileges and easements which had
before become attached to the same, such as the right to
build and maintain a dam, erect mills, all rights of flowage
of lands of the lessor or others, all rights of ways, of laying
logs or lumber, and of mill-yard, whether the same may have
been acquired by grant or prescription.^
1 Blake v. Clark, 7 Me. 436 ; Atkins v. Bordman, 2 Mete. 463.
2 Blain's Lessee v. Chambers, 1 Serg. & TJ. 169. See also Gibson v. Brock-
way, 8 N. IL 465; Maddox v. Goddard, 15 Md. 218; Swartz v. Swurtz, 4 Penn.
St. 353 ; M'Tavish v, Carroll, 7 Md. 352.
3 Moore v. Fletcher, 16 Me. 63 ; Crosby v. Bradbury, 20 Me. 61 ; Jackson v.
Vcrmilyea, 6 Cow. 677.
* Borst V. Empie, 1 Seld. 40.
^ Thompson v. Banks, 43 N. IL 540; Dunklec v. Wilton R. R., 24 N. H.
495 ; Seavey v. Jones, 43 N. II. 441.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 45
But where a tract of land was granted " with A. D.'s mill-
seat excepted," it was held to be an exception of a right to
flow a pond on the land for the mill, and not of the land it-
self on which the pond was raised.^
11. And the grant of land bounding on or near a pond or
stream of water, reserving to the grantor the mill and water-
privilege connected with such pond or stream, is a reserva-
tion of the right to flow the land granted, so far as is neces-
sary or convenient, or so far as it has been usual to flow it
for that purpose.^ But a different rule has at times been in-
sisted on, in respect to a right to flow lands being raised by
implication, where the mill is the subject of grant, from that
which is applied in case of a reservation of a mill. If the
mill-owner sells his mill and jdam, but retains the lands
which had been flowed thereby, he conveys, as an essential
part of the grant, the right of flowage of these lands,
so far *as the same is necessary. But if he sell the [*36]
lands, retaining the mill, it has been held that he
would not have a right to flow the land, unless he expressly
reserved the right so to do.^
But the above doctrine is controverted as to the distinc-
tion between a grant and reservation ; and it was held, that,
if one having land, on which are a mill, a mill-dam, and pond
of water, sell the land on which the dam stands, and the
head of water is raised, without any express reservation, the
purchaser takes it subject to the easement of these, as inci-
dent to the mill retained by him.^
So where the owner of a spring lot and of a paper-mill on
another tract, by an artificial arrangement conveyed the
1 Everett v. Dockery, 7 Jones, No. C. 390; Whitehead v. Garris, 3 Ibid. 171.
2 Pettee v. Hawes, 13 Pick. 323.
3 Preble v. Reed, 17 Me. 169; Hathorn v. Stinson, 10 Me. 224; Rackley w.
Sprague, 17 Me. 281 ; Burr v. Mills, 21 Wend. 290 ; M'Tavish v. Carroll, 7 Md.
352 ; Johnson v. Jordan, 2 Mete. 234 ; Carbrey v. Willis, 7 Allen, 370 ; Sufficld
V. Brown, 10 Jur. N. S. Ill ; Tenant v. Goldwin, 2 Ld. Raym. 1093; White v.
Bass, 7 H. & Norm. 731.
* Seibert v. Levan, 8 Penn. St. 383. See also Harwood t;. Benton, 32 Vt. 724.
Nicholas v. Chamberlain, Cro. Jur. 121.
46 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
water from the spring to the mill for the use of the mill, in
the manufacture of paper, and sold the spring lot by itself,
the purchaser took it subject to the burden of this easement
of water for the mill, although the latter was retained by the
grantor. 1
12. But whether any and what privileges pass by a grant
of a thing, as well as the measure or limits of what is
granted, often depends upon the circumstances and condi-
tion of the property, and the language of the grant construed
in the light of these circumstances. One general test is, how
far the incidents claimed are necessary to the reasonable en-
joyment of what is expressly granted.
Thus where land was granted across which a public high-
way had been laid out, and was in use, and the owner con-
veyed it with covenants, and in his deed reserved or exccpte<J
the roads across the premises, it was held not to be a reser-
vation or exception of the land itself included in this way,
but an exception of the easement from the covenants in his
deed.2
So a grant of land running &c. to a passage-way, which
was reserved to the grantor to be used as such, and to be
used by the grantee and his assigns in common with the
grantor and others claiming under him, was held to be that
of an easement in and not the soil of the way. But its use
was limited to the land granted, and did not extend to any
acquired afterwards.^
And where the grant was of a right of way " over my land
where it is necessary," it was held to extend only to such
lands as the grantee owned when the grant was made.*
13. In the first place, in order to liave a right of easement
in or over one piece of land pass by the grant of another par-
cel, it must be an existing easement, actually appurtenant
by use and enjoyment, and by having been exercised with
1 Seymour v. Lewis, l.'J N. J. 439 ; post, sect. 3, pi. 25 & 25 a.
2 Lcavitt V. Towlc, 8 N. H. 96.
' 3 Stearns v. Mullen, 4 Gray, 155.
* Smith V. Porter, 10 Gray, 67.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 47
the occupation of the latter parcel. It is not enough that
the grantor, when he made his deed, had a riglit, in the na-
ture of an incorporeal hereditament, to an easement in the
other land which he had never exercised or applied. Thus
A sold a parcel of land through which a stream of water
flowed to B, and reserved the streams and soil under the
same, with a right to erect dams and mills, and to overflow
the land for the use of the mills. B sold a part of these
lands to C, sultject to these reservations. C, by verbal
permission and agreement of A, erected a dam *on [*37]
his land, thereby overflowing a part of B's land. It
was held, that, until A had exercised the reserved right to
flow, the reservation was inoperative, since it would not until
then be ascertained what lands were thereby to be flowed,
the reservation being of a right only to use these lands for
a specific purpose, while the direct interest in the soil was
in the grantee ; and that this right, so reserved, was an in-
corporeal hereditament which could be granted by deed only,
and therefore the verbal license of A to C to flow B's land
was of no avail.^
So where one made a lease in fee of a farm, " excepting
seven acres, and saving and reserving to the lessor all water-
covirses suitable for the erection of mills, with the right of
erecting mills, with three acres of land adjoining thereto,
and also saving and reserving the right to erect dams and
cut ditches for the use of such water-works." The lessor
leased these seven acres in fee to S., who erected a mill
thereon, and flowed a part of the three acres. But it was
held, that, though by the conveyance of the seven acres he
acquired a right in the same manner as his lessor had to erect
mills thereon, he did not thereby acquire a right to flow the
three acres, although his lessor had this, because it was not
appurtenant or annexed to the parcel of seven acres. It was
an incorporeal hereditament in the lessor, which would only
pass by express grant ; nor did it change the rights of the
1 Thompson v. Gregory, 4 Johns. 81.
48 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
parties, that the lessor, after the commencement of the action,
indorsed on the lease that it was the intention of the same to
convey the right to flow the three acres. ^
The case of Morgan v. Mason may be referred to as an
illustration of rendering an easement in one parcel of land
appurtenant to another, so as afterwards to pass with the lat-
ter. J. M. bought of Polluck fifteen acres of land lying upon
one side of a stream, in 1834. At that time, May
[*38] *owned land above this parcel upon both sides of the
stream, and upon the side of the stream opposite to the
fifteen acres. In 1837 he conveyed to J. M. one acre of the
land opposite the fifteen acres, and extending as far up the
stream as that did, and by the same deed conveyed to J. M.
a right to build a dam across the stream at the upper line of
the fifteen-acre and one-acre lots, far enough and high enough
to raise the water in the stream to a certain height, and to go
upon May's land, at all times, to repair it. The dam was
erected, and a race made •upon the fifteen-acre lot, by which
the water of the pond was conducted and discharged into the
stream below the one-acre lot, and upon this race within the
fifteen-acre lot a mill was standing in 1837, which was operat-
ed by the water of the same, and continued to be up to 1845.
At that time the fifteen-acre lot was sold on execution against
J. M. by metes and bounds, with the privileges and appurte-
nances thereto belonging. All J. M.'s other lands were sold
under a mortgage to another creditor, and the question was,
whether this water-right upon another tract of land, and ac-
quired at a different point of time, had become so appurte-
nant to the fifteen-acre lot as to pass with it, without being
expressly named. And it was held that it did, being neces-
sary to the enjoyment of the mill standing on the fifteen-
acre lot, and used with it ; and that it passed as incident
to it, without requiring that it should be mentioned in the
deed.^
1 Russell V. Scott, 9 Cow. 279.
2 Morgan ;;. Mason, 20 Ohio, 401, 414. See Underwood v. Carney, 1 Cush. 285.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 49
14. Appurtenant, as applied to easements, which pass by
grant of the principal thing, is confined " to an old i3xisting
right." It is not enough that the same man may own one
piece of land, and a right to use another piece of land, in
a qualified manner, in connection with it. If he conveys
the first parcel independent of the right in the second, it
passes no claim to his grantee beyond what is expressly
granted, unless he has so united them, by a practical
*application of the one for the benefit of the other, [*39]
as to have given thereby a value and advantage to the
principal estate which is presumed to enter into the consider-
ation which he receives upon conveying the same. It is for
this reason, among others, that if one owns two parcels of
land, over one of which he has a convenient way to the other,
which he uses, it is not supposed he intends to enhance the
value of the one at the expense of the other ; and when he
sells either of these parcels, it is not presumed that he at-
taches to such parcel a burden or privilege in respect to the
other, unless he expressly so declares in his deed. Such
way would not pass as appurtenant, unless made so expressly
by the deed, although the estate " with its appurtenances "
is granted.^
15. But if, in a case like that supposed, the owner of two
parcels of land, over one of which there was a defined and
ascertained way used by him in connection with the other
parcel, were to convey the latter parcel, with " the ways, or
all the ways, now used " therewith, such way would become
appurtenant to the parcel by the act of the owner, evidenced
by the language of his deed.^
So if one own White Acre and Black Acre, and uses a way
from White Acre over Black Acre to a mill, a river, or the
1 Barlow v. Rhodes, 1 Crompt. & M. 439 ; Whalley v. Tompson, 1 Bos. &
P. 371 ; Grant v. Chase, 17 Mass. 443. Baijley, J., in Barlow v. Rhodes, says of
Morris v. Edgington, 3 Taunt. 24 : " I consider that merely as a case of a way of
necessity." Plant v. James, b B.irnew. & Ad. 791.
2 Whalley !•. Tompson, 1 Bos. & P. 371 ; Barlow v. Rhodes, 1 Crompt. & M.
430 ; Kooystra v. Lucas, 5 Barnew. & Aid. 830 ; Com. Dig. Chimin, D. 3.
4
50 THE LAW OF EASEMENTS AND SERVITUDES. [C«. 1.
I
like, and conveys White Acre to a stranger, " with all ways,"
it will pass a right of way with it over Black Acre to the mill,
16. But though, where there is an existing easement, like
a way belonging to an estate, it will pass with the estate, if
granted " with the privileges and appurtenances," or, by
later cases, without adding these words, the use of these
words will not create a new easement, nor give a
[*40] right to *use a way which has been used with one
part of an estate over another part, while both parts
belonged to the same owner. But if the words in the grant
of the principal estate be " with all ways therewith used, or
heretofore used," the ways actually in use at the time of
the conveyance would pass.^ And in James v. Plant,^ the
court held that " appurtenances " in the habendum of the
deed under consideration was not confined to that which
is, in legal strictness, an appurtenant, such as an ease-
ment, the enjoyment whereof has never been interrupted
by unity of possession or extinguished by unity j)f seisin,
but that it would let in and comprehend a right of way
which had been usually held, used, and occupied or en-
joyed with the principal estate conveyed. But the ground
upon which this was so held was, that " ways, paths, and
passages" had been mentioned in the deed among the pre-
mises granted. Otherwise the word "appurtenances" in the
habendum would only pass a way legally incident to the en-
joyment of the property."*
'Thus it is said by Crompton, J., in respect to the claim of
an easement of a pump upon one estate in favor of another,
both of which estates were claimed under the same devisor :
" This is not a continuous easement, nor an easement belong-
ing to the cottage, but a mere enjoyment for two years by
1 Staple V. Ileydon, 6 Mod. 1.
2 Gayctty v. Bcthuue, 14 Mass. 49 ; Grant v. Chase, 17 Mass. 443; ante, sect.
l,pl. 11.
8 4 A. & Ellis, 749.
< Woitliiiigton V. Gimson, 2 E. & Ellis, 624.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 61
the tenant, of tlie privilege of using the pump. If this
had been an old easement attached to tlie cottage, it would
pass hy the words " appertaining and belonging." But to
create a new easement which did not exist before, the will
must have devised the cottage with the pump therewith
enjoyed.^
17. So where, upon partition made of an estate by mutual
deeds of release, upon one part of the estate there was a mill
which was assigned to one cotenant, and a part of the land
which was flowed by the mill was assigned to another, and
in the deed the expression was contained, " the brook to re-
main for the mills as heretofore," it was held that the mill-
owner had a right to flow the land of the other, and that the
extent to which this might be done was to the height to
which the dam of the mill, in its original state, was designed
and was of a capacity to raise it, althougli when the deed
was made the dam had become depressed in the centre,
and incapable, in that state, of flowing water to its original
height. 2 '
18. Where one conveyed land with a water-privilege, by
metes and bounds, on which one end of a dam across the
stream rested, and reserved to himself the privilege of draw-
ing so much water from the pond for fulling so much cloth,
but there was no existing mill, the grantor insisted that, by
implication, he had a right to erect such mill upon the
land, in order to enjoy the reserved right of water-power.
But it appearing that there was other land in the neighbor-
hood which he could obtain suitable for erecting such mill,
which might be operated by a canal to be cut across the
granted premises, it was held that the right to erect the mill
upon the premises, not being a necessary one in order to en-
joy the reservation, did not pass thereby.^
19. Upon a like principle, where one made a grant or
1 Poldcn V. Bastard, 4 B. & Smith, 264.
2 Vickcrie v. Buswell, 13 Me. 289.
3 Cocheco Mg. Co. v. Whittier, 10 N. H. 305.
52 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
[*41] *lease of a tan-yard, with a right to take sufficient
water from a stream upon the grantor's land for the
use of the tan-yard and to carry a bark-mill, it did not give
the grantor a right to foul the water by discharging the con-
tents of the tan-yard into the water thus used. It not being
necessary to its enjoyment, the right to do this did not pass
with the principal thing granted, however convenient it
might be.^
20. The case of Hull v. Fuller may serve to show how far
courts are sometimes obliged to refer to the state and condi-
tion of the premises, as well as the purpose of the grant, in
order to fix and define the limits of a grant of an easement.
The terms of the grant, in that case, were of a definite par-
cel of land, " and the whole of a mill-pond which may be
raised by a dam on said falls to a road," &c. As this neither
fixed the dimensions of the pond, nor the height of the dam,
the grant was held to be of a right to erect such a dam as
would afford a reasonable use of the mill-privilege, and when
a dam should be built, and a pond thereby should be raised,
such as would effect that purpose, the boundaries of the
grant would thereby become fixed and ascertained. By that
grant the purchaser had a right to build such a dam as
could be constructed at the falls, and of such a height as
would well answer the purposes of mills contemplated to be
built there.2
21. While it is true that the grant of a principal thing
carries whatever is necessary to its enjoyment, this is limited
by what the grantor had, at the time, the power to convey.^
So it might be limited by the effect which the construction
to be given might have upon other interests and estates con-
nected with the one granted. Thus, though if one
[*42] had a single saw-mill for instance, upon a stream, *and
were to convey the same by deed, it would carry, by
1 Howell (;. M'Coy, 3 Eawle, 256.
2 Hull V. Fuller, 4 Vt. 199.
3 Tourtellot v. Phelps, 4 Gray, 370 ; Lampnian i-. IMilks, 21 N. Y. 505; United
States V. Appleton, I Sumn. 492.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 53
implication, the dam and water-privilege belonging to the
same ; yet if he owned several mills standing upon the same
privilege, and were to convey one of them by the same dis-
tinctive term of " saw-mill," " grist-mill," or the like, it
would only pass the particular mill thus designated, and
sufficient water only to carry it. The law would not extend
the constructive grant to the destruction of the other mills
standing on the same privilege.^
In one case there were two mills upon a stream, and a
reservoir above them both, the water from which came, suc-
cessively, to these mills. The owner of them sold the lower
mill, conveying it by metes and bounds, without mentioning
the reservoir. The other mill and reservoir afterwards came
into the plaintiff's hands, and upon the owner of the lower
mill undertaking to exercise the right to draw water from
the reservoir, it was held that he acquired no right, by im-
plication, to do this against the consent of the owner of the
upper works, although it so happened that between the up-
per and lower mills there was no place where the owner of
the latter could erect a dam, and raise a head of water by a
pond.2
22. Where an easement, like an artificial drain, for in-
stance, has been created and granted for a particular use
and purpose, it cannot be changed by the grantee to another
though like use, nor can the grantee increase the amount or
extent of such use beyond what was originally intended and
embraced in the grant. Thus, A granted to B a right to
construct and maintain an artificial trench across A's land,
to drain the water from a certain cleared parcel of land by
ditches made thereon discharging into this trench. The
grantee afterwards drained the specific parcel by ditches run-
ning in a direction other than to this trench, but cleared an-
1 Crittenden v. Field, 8 Gray, 621 ; Vickerie v. Bus\yell, 1.3 Me. 289 ; Stack-
pole V. Curtis, 32 Me. 383.
2 Brace v. Yale, 4 Allen, 393 ; 2 Wash. R. P. 664. See ante, p. *34, for distinc-
tion between this and the case of Pcrrin v. Garfield there cited.
54 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
other parcel, and drained the water from that by ditches run-
ning into this trench. It was held that he liad no right,
under such grant, to increase the quantity of water intended
to be thereby discharged through the trench, and that he had
no right to discharge water coming from other sources than
that specified in the grant, although it might not exceed in
quantity that which was contemplated to flow through the
trench, even though, while doing it, the grantee forbore to
use it for discharging the water originally intended to flow
through it.^
23. Although, as has more than once been said, no ease-
ment in one parcel can be said to be appurtenant to another
by reason of any use made of the two, so long as they
[*43] both *belong to the same person, the cases are nu-
merous where, upon dividing the heritage, as it is
called, — that is, by the owner of two or more estates or
parts of an estate selling one of them by itself, and retaining
the other, or conveying it to some third person, — privileges
in favor of the one have been held to pass as incident to the
same, and a corresponding burden imposed upon the other,
from the nature of the estate, the arrangement of the parts
of the estate, and the degree of necessity there is of giving
such a construction to the conveyance, in order to give it a
reasonable effect. This is not intended to embrace that class
of cases already referred to, where, as in the case of a way,
an estate is conveyed granting therewith " all ways " or
" ways in use," the ways actually used in connection with
the part granted have been held to pass by the terms of the
deed.
The ground upon which this doctrine both of the French
and the common law rests seems to be, that, where the owner
of two heritages, or of one heritage consisting of several
parts, has arranged and adapted these so that one derives a
benefit or advantage from the other of a continuous and
obvious character, and he sells one of them without making
1 Carter v. Tagc, 8 lied. 190.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 55
mention of those incidental advantages or burdens of one
in respect to the other, there is in the silence of the parties
an implied understanding and agreement that these advan-
tages and burdens, respectively, shall continue as before the
separation of the title. ^
Thus where two parcels lay, one in front and the other
in rear, in relation to a highway, and there was a private
way used over the front lot from the rear one to the high-
way, and the owner of the two conveyed the front lot to a
stranger, it was held that he took it subject to the use of
this private way from the rear lot to the highway. It be-
came, at once, a way appurtenant to the rear lot.^ So where
a parcel of land was conveyed to which the owner had been
accustomed to have access by a way across another open
parcel to the highway, it was held that his grantee might
use this way, though not one of absolute necessity, if another
way could not be constructed by him at a reasonable expense,
having reference to the value of the land.^
*24. Questions of this kind have often arisen in [*44]
cases of one or more houses erected in a block be-
longing to the same owner, where one is dependent upon
another for its lateral support, or the water collecting in the
one has been discharged by a drain through another, and
the like, and in some cases in respect to lights in houses
which have been conveyed.
Thus in Richards v. Rose, the proprietor of a parcel of
land erected a number of dwelling-houses upon the same
in one block, each supporting the other, and each obviously
needing the support of the other. It was held that, if he
conveyed one of these, he created an easement of support
in its favor as against the adjoining house, and a servitude
1 See ante, sect. 1, pi. 21, as to Destination dupere defamille. Post, p. *53 ; Penn.
R. R. V. Jones, .50 Penn. 424.
2 M'Tavish v. Carroll, 7 Md. 352. See Brakely v. Sharp, 1 Stockt. 9 ;
McCarty v. Kitcheninan, 47 Penn. 239.
8 Pettingell u. Porter, 8 Allen, 1.
56 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
upon the adjoining tenement of support to the one which
he had granted.^
25. So many questions, especially of late, have turned
upon the construction and effect of conveying part or parts
of one or more heritages, which the owner had so adapted
or arranged as to make certain uses of one part convenient
or necessary for the enjoyment of the other, that a special
reference to decided cases becomes proper, in order to
ascertain, if possible, the rule or test by which to determine
whether and how far an easement or servitude may thereby be
granted or reserved by implication.
Under the French law, this is provided for by the code.
What is there called la destination dii pere de famille " has
the effect of writing in regard of continued, and apparent ser-
vitudes." And " if the owner of two heritages, between
which there exists an apparent mark of servitude, dispose of
one of the two heritages without the contract containing any
agreement relative to the servitude, it continues to exist,
actively or passively, in favor of the property aliened, or
upon the property aliened," ^ This, it will be perceived, is a
positive inference of law from the act of the parties, rather
than the constructive terms of an agreement between them.
And yet, according to Pardessus, it is not in consequence of
the principle that servitudes follow the estates to which they
belong, into whosesoever hands they come, since no one can
owe a servitude to himself, but by a just and legitimate
presumption of intention with which they were created, and
the silence of the one who makes a disposition of the estate,
and the good faith which is due to him who, seeing the
condition of the estates, has a right, naturally, to conclude
that they were thus transmitted by the vendor.^
The same principle has been adopted, by analogy, to a
greater or less extent, by different courts, as a basis of con-
1 rviclinrds v. Rose, 9 Excli. 218 ; mite, sect. 1, pi. 21.
••^ Barrett's Cod. Nap. ^§ C92, 094.
" rardcs. Serv. 447.
Skct. 3.] ACQUIRING EASEMENTS BY GRANT. 67
struing grants, though it is believed that the common law,
in order to give this effect, requires that what is thus claimed
as a servitude or easement should be reasonably, and in
some cases absolutely, necessari/ as well as continuous and
apparent. This analogy to the French law is expressly rec-
ognized by the Court of Pennsylvania, in the case of a way
which was claimed by the devisee of one part of an estate over
another part of the same estate in the hands of another de-
visee. The testator had, in his lifetime, divided his estate
among his sons in distinct occupancy, retaining one part in
his own possession, but gave them no title to the same dur-
ing his lifetime. One of the sons in occupying his part made
use of a way which the father had constructed before the di-
vision over that in possession of the father, which, a part of
the distance, was fenced out as such, and over this the son
had passed to mill and to meeting and a neighboring village,
the same being his most convenient way to and from these.
After the father's death, the one to whom he devised the
homestead part, denied to the devisee of the other part the
right to pass over this way. But the court, though they say
that such easements were commonly those of water, like
drains, water-pipes <fec., yet being a distinct and notorious
way fenced out, it passed as a permanent disposition as
appurtenant or perhaps as parcel of the property devised,
placing it upon the intention of the testator and not upon
any necessity there was for such way.^
The case of Ewart v. Cockrane is often quoted as a leading
one upon this subject. The premises were a dwelling-house,
garden, and tan-yard, the tan-yard being owned by one, and
the house and garden by another, from 1788 to 1806. They
then were owned by the same person until 1819. In 1819
the owner conveyed the tan-yard, and it came, at last, to the
defendant. In 1822 he conveyed the house and garden, and
1 Phillips V. Phillips, 48 Penn. 178 ; Pcnn. R. R. v. Jones, 50 Pcmn. 424 ; Keif-
fer V. Imhoff, 26 Penn. 438. See Huttemeier v. Albro, 18 N. Y. 48; post, p.
*46 ; McCarty v. Ivitcheuman, 47 Penn. 239.
58 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
they came to the plaintiff. There had been a drain in use
from the tan-yard into a cesspool or tank in the garden, from
1788, and was continued till 1853, when the defendant stopped
it. The Chancellor, Ld. Campbell, said, " I consider the law
of Scotland as well as the law of England to be, that when
two properties are so possessed by the same owner, and there
has been a severance made of part from the other, anything
which was used and was necessary for the comfortable enjoy-
ment of that part of the property which is granted, shall be
considered to follow from the grant, if there be the usual
words in the conveyance. I do not know whether the usual
words are essentially necessary, but when there are the usual
words, I cannot doubt that that is the law." Both he and
Lord Chelmsford held that the easement passed with the tan-
yard, because it was " necessary for the convenient and com-
fortable enjoyment of the property, as it existed before the
gi'ant." 1
In Worthington v. Gimson, two farms and two parcels
adjoining belonging to two persons in common, partition was
made between them, giving one farm and the two parcels to
one, and the other farm to the other, and in the deeds were
included " their and every of their rights, members, ease-
ments, and appurtenances." A way had previously been in
use across the two parcels for the accommodation of the farm
set to the other owner, who now claimed it as an easement.
But the court held that it did not pass, as it did not appear
to be necessary for the enjoyment of the premises. " It
would not pass under the term ' appurtenances,' because the
way is not within the strict legal sense of that word." There
may be a class of easements like drains or sewers, which
must necessarily be intended to remain after the severance
of the property, and in such case the necessity of the ease-
ment may be ascertained.^
1 Ewart V. Cockrane, 4 McQueen, 117. Sec also Hall v. Lund, 1 H. & Colt,
C76 ; Shaw v. EtlicridKC, 3 Jones, N. C. 300.
^ Wortliinyton v. Gimson, 29 L. Jour. Q. B. 116; 2 E. & Ellis, C18.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 69
The rule of the French law is also referred to by the court
of N, Jersey, in the case of an aqueduct which was held to
be reserved to tlie grantor, although not in express terms,
upon the principle that where the owner of two parcels so
arranges one in reference to the other as to derive an appar-
ent and continuous benefit from what is of the nature of an
easement in the other, and he conveys one of the parcels, it
carries with it or is subject to the enjoyment of this as an
easement in fact. In that case, the owner of a paper-mill
and a lot with a spring in it, laid an aqueduct from the spring
to his mill for the use of the latter. He subsequently con-
veyed the spring, but without reserving the easement of the
aqueduct, and it was held that the grant was subject to this
easement, it being open, apparent, and continuous in its char-
acter ; nor is the idea of supplying water, elsewhere, raised in
the discussion of the case.^
But where the thing to be used is disconnected from tUe
estate to which it is claimed as appurtenant, and its use is not
continuous, the right of enjoyment of it will not pass as an
incidental easement upon dividing the heritage.^
A case where a right of way was held to pass upon grant-
ing one of two parcels belonging to the same person, although
not a way of necessity, but because the parcels had been so
used in relation to each other by the owner, was this. There
were three parcels of land, the first and third belonged to A,
who had a prescriptive right of way from 1 to 3 across 2, and
in going from 3 to a public way, A used to pass across 2 and
1. A sold 3 to a third person, and it was held that the right
of way across 2 passed as appurtenant to that lot, and that a
right to pass across 1 to the public way passed also as an
easement, although the purchaser could have access to it by
a less convenient way.^
1 Seymour v. Lewis, 13 N. J. 439.
2 Polden V. Bastard, 4 B. & Smith, 258.
2 Leonard v. Leonard, 7 Allen, 277, 283. See also Pearson v. Spencer, 1 B.
& Smith, 580; s. c, 3 B. & Smith, 76L
«
60 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
And another case, where the condition and use of the
property granted, in case of several parcels owned by one
person and conveyed separately by him, serve to fix the
rights of the purchasers, was this : A owned, upon a stream,
two mills, and B owned an intermediate mill upon the same
stream. A opened a sluice from above the dam of B, along
the bank of the stream to his lower mill, thereby drawing a
part of the water in B's pond to the pond of the lower mill.
In this state of the property, A purchased B's mill, thereby
owning the three estates, and subsequently sold them to
three distinct purchasers. And it was held that the pur-
chaser of the middle mill took it subject to the right in the
lower one to draw the water from the pond of that mill in
the manner in which it was done when the conveyance was
made.^
In Louisiana, when a party grants an estate to which an
ajiparent easement belongs, he is considered as warranting
that he will do nothing to prevent its full enjoyment, though
no mention is made of it in the grant.^
The latest English case which has come to hand bear-
ing upon this subject is Russell v. Harford, decided in
1866.-^ In that case the defendant was, originally, the owner
of two adjoining parcels with dwelling-houses thereon, which
he had let to two different tenants. On lot A was a well,
from which the tenant of lot B by permission drew water
for his premises, by a pipe laid from B to the well. In this
condition of things, the lots were sold by the defendant at
auction, A being first bid off by the tenant thereof, and then
B, by the tenant of that lot. The plaintiff bid off A, and the
defendant, the vendor, declined delivering any deed of the
estate unless it contained a reservation or exception of the
right of the owner of B to draw water from the well, and
the right to repair and renew the pipe aforesaid.
1 Elliott V. Salk'C, 14 Oliio St. 10; Morgan v. Mason, 20 Oliio, 401.
- Bruning v. N. Orleans Canal, &c., 12 Louis. An. 541.
8 Itussell V. Harford, L. R. 2 Eq. 507.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 61
The suit was in equity to compel the defendant to give an
unrestricted deed. One of the conditions of sale stated that
the premises were sold " subject — to rights of way and water,
and other easements (if any) charged or subsisting thereon."
The purchaser of B, had been tenant from year to year of
the premises which he bid off. The plaintiff insisted that the
facts did not establish a right of easement to water in B over
A, but that the quasi servitude to which the latter had been
subjected by the owner, was discharged by his absolute sale
thereof to a purchaser by the vendor of both parcels while
he owned them botli, and he cited Sufifield v. Brown as an
authority. The defendant insisted that the easement passed
because lot B would be useless without the right to water,
and cited Wardle v. Brocklehurst,^ but did not refer to Pyer
V. Carter. The Vice-Chancellor, Kindersley, without citing
any authority, held that this right could not have been em-
braced in the expressions used in the conditions of sale, as
the only right of the tenant of B to draw water was by license
from the owner, that the two purchasers of the lots made
their contracts upon the basis of the conditions of sale, and
that if it had intended to create a right or liability as be-
tween the purchasers of the different lots, it should have
been clearly expressed in the terms of the sale, and in the
absence of any such restriction or limitation, the plaintiff
was entitled to a deed without other exception or reservation
of the servitude claimed.
The case therefore seems to have turned upon the con-
struction given to the contract of the parties, rather than
upon any implied grant or reservation of a right growing
out of the sale of one of two heritages. And another cir-
cumstance in the case distinguishes it from those where the
parts of the heritage have been arranged and adapted to
each otlicr by the owner thereof, since, in the case under
consideration, the laying of the pipe from the well in one
parcel to the house on the other, was done by the tenants
1 Wurdlc V. Brocklclmrst, 29 L. J. (Q. B.), 145.
62 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
thereof, independent, for aught that appears, of any act or
intention on the part of the owner of the estate.
25 a. In several, especially of the more recent, cases which
have been cited, that of Pyer v. Carter has been referred to,
and an importance given to it which renders it desirable to
ascertain to what extent it is to be regarded as a statement
of what the law is upon the subject of which it treats.
The case is repeatedly cited in the present work, and was
received, at the time of the preparation of the former edition,
as the law of the English courts. It is reported in 1 II. &
Norm. 916, and the facts, as stated, were these : The plain-
tiff's and defendant's houses adjoined each other. They had
formerly been one house, and were converted into two by the
owner of the whole property. Subsequently the defendant's
house was conveyed to him, he knowing the existence of this
'drain ; and after that the plaintiff took a conveyance of his
house from the same grantor. At the time of the respective
conveyances, the drain ran under the plaintiff's house and
then under the defendant's house, and discharged itself into
'the common sewer. The plaintiff's house was drained
through this drain ; but he might have stopped it, and made
a new one over his own land into the sewer, for six pounds.
The court held that, under these circumstances, the plaintiff
had an easement of drain through the defendant's premises
by an implied grant, and that the defendant was liable for
stopping it. The Chancellor, in giving an opinion in the case
of Suflfield V. Brown,^ seems to have gone out of his rec-
ord to attack and endeavor to overrule this case of Pyer v.
Carter. The case before him was one where a man, owning
a dock and wharf, with a strip of land adjoining it, sold the
wharf and strip of land, without making any reserve in favor
of the dock. He had been accustomed, when using the dock
for vessels, to have their bowsprits extend over some part of
the wharf, and, from the size of the dock, this was necessary
in order to have vessels lie there. He attempted to enforce
1 10 Jur. N. s. 111.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 63
this right against his grantee, but the court refused him the
relief whicli he claimed. The easement claimed was, obvi-
ously, a non-continuous one, nor was there anything to render
it apparent beyond the fact of the size and dimensions of the
dock. The connection between such an easement as this
and the case of a drain, as in Pyer v. Carter, is far from be-
ing obvious. But the Chancellor takes occasion to go much
at length into the doctrine of easements by implied grants.
He cites from Mr. Gale's work his remarks upon this sub-
ject, and adds : " But I cannot agree that the grantor can
derogate from his own absolute grant, so as to claim rights
over the thing granted,*even if they were, at the time of the
grant, continuous and apparent easements enjoyed by an
adjoining tenement which remains the property of him,
the grantor." He next proceeds to comment upon the doc-
trine of destination du pere de famil/e, in the manner already
stated,! and then notices " the fallacy in the judgment of the
Court of Exchequer in the case of Pyer v. Carter " ; and con-
cludes, " I cannot look upon the case as rightly decided, and
must wholly refuse to accept it as an authority." He ap-
proves of the doctrine of Nicholas v. Chamberlain,^ and Sury
V. Pigott,^ which are also repeatedly referred to in the pres-
ent work, and admits that there may be two adjoining houses
so constructed as to be mutually subservient to and depend-
ent on each other, neither being capable of standing or being
enjoyed without the support it derives from its neighbor, in
which case the alienation of the one house by the owner of
both, would not estop him from claiming, in respect of the
house he retains, that support from the house sold which is,
at the same time, afforded in return by the former to the lat-
ter tenement, as in Richards v. Rose.* But where the right
is separable, it is severed, and either passed or extinguished by
the grant. If it were not for what is said by him of Nicholas
V. Chamberlain, it might, perhaps, be assumed, that he made
1 Ante, p. *17. * Palmer, 444.
2 Cro. Jac. 121. * 9 Exch. 218.
64 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
a distinction between granted and reserved rights. But that
case expressly disregards such a distinction. Some of the
Chancellor's positions certainly seem to be opposed to opin-
ions which more than one of the American courts have ex-
pressed, and as to the point ruled by the court in Pyer v.
Carter, the weight of authority, so far as numbers are con-
cerned, seems to be against his opinion.
Thus, in one case, Martin B, says Pyer v. Carter " was no
more than an implied grant of a right analogous to thatwof
flowing water," and " went to the utmost extent of the law ;
but, if considered, that decision cannot be complained of; for
if a man have two fields drained by an artificial ditch cut
through both, and he grants to another one of these fields,
neither he nor the grantee can stop up the drain in it. I
agree with the law as laid down in that case, and I think it
may be supported without extending the doctrine of the right
of way." 1
Channel B. in Hall v. Lund says : " In Ewart v. Coch-
rane, the House of Lords confirmed the principle of the deci-
sion in Pyer v. Carter," and adds, " the case of Pyer v. Car-
ter, which was confirmed, and its principle explained by the
House of Lords, compels me to come to this conclusion,"
that is, the judgment which he rendei'cd in that case.^
The doctrine of Pyer v. Carter is recognized more or less
directly and authoritatively, in the cases following, viz. : By
the Chancellor in Ewart v. Cochrane, by Wightman J. in
Worthington v. Gimson,^ and Polden v. Bastard,^ by the
New York court in Huttemeier v. Albro,^ by the reporter in
Glave V. Harding,^ and by the court of Pennsylvania in
McCarty v. Kitchcnman," in which the opinion of the Chan-
cellor in Sufficld V. Brown, is referred to, with the remark
that the easement in that case was neither continuous nor
1 Dodd V. Buichell, 1 H. & Colt, 121.
2 1 II. & Colt. 081, G85. See also 105 Eng. C. Law Rep. 62G ; note Am. Ed.
8 2 E. & Ellis, C18.
* 4 B. & Smith, 258. ^ 3 II. & Norm. 944 note.
6 18 N. y. 52. '' 47 Tenn. St. 24.3.
Sect. 3.] ACQUIRING EASEMENTS BY ORANT. 65
apparent, and it docs not seem to have been regarded as an
authority in deciding the case then before them.
In Crossley v. Lightowler, in 1866, the counsel on both
sides refer to Pyer v. Carter, and Suffield v. Brown, and the
Vice-Chancellor Wood states what the decision in the former
established, without any suggestion that it is not a reliable
authority, and one of the counsel insists that Suffield v.
Brown does not overrule it.^
The case is also cited by Chapman J., in Leonard v. Leon-
ard ,2 and by Hoar, J., in Carbrey v. Willis,-^ but without com-
ment or objection. Nor has any case except Suffield v.
Brown been found which militates with the doctrine of that
case, unless that of Randall v. McLaughlin * is to be so re-
garded.
In the latter case, Hoar, J., in giving the opinion of the
court, says: " The authority of Pyer v. Carter, the leading
English case on which the plaintiff relies, was wholly denied
by the Chancellor of England in the opinion given in Suffield
V. Brown, which contains an elaborate review of the whole
doctrine, resulting in conclusions substantially like those to
which we came in Carbrey v. Willis." The facts and judg-
ment in the last-mentioned case were these. A drain was
an ancient one constructed by the owner of two or more
houses, passing from one under the other to the place of dis-
charge. One of these houses he sold to one person, and the
other to another, but the drain was not apparent, and neither
of the purchasers knew of its existence for many years after
such purchase by them, when it was discovered by becoming
obstructed. As the lower of the two houses was first sold,
if the drain could be claimed for the benefit of the upper
one, it must be by way of implied reservation., as in the case
of Pyer v. Carter, as it was not mentioned in the deed. The
court, with obvious propriety, held " that no easement can
be taken as reserved by implication unless it is de facto an-
1 L. R. 3 Eq. 286. ^ 7 Allen, 369.
2 7 Alien, 283. * 10 Allen, 366.
6Q THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
nexed and in use, at the time of the grant, and is necessary
to the enjoyment of the estate which the grantor retains."
" Where there is a grant of land by metes and bounds with-
out express reservation, and with full covenants of warranty
against encumbrances, there is no just cause for holding that
there can be any reservation by implication, unless the ease-
ment is strictly one of necessity."
The case of Randall v. McLaughlin was in many respects
like that of Carbrey v. Willis. There was a drain passing
from one house under the other, both of which, originally,
belonged to one man who conveyed the lower house, with
covenants of warranty, to one, and subsequently the upper
house to another. But the Court held that this drain did
not attach as an easement to the upper house, because the
requisite necessity " does not exist, in the view of the law,
where an equally beneficial drain • could be built on the
plaintiff's land with reasonable labor and expense." Refer-
ence is also made to Johnson v. Jordan ^ and Thayer v.
Payne.^
Both these cases have also been repeatedly referred to in
this work, and they are now recalled only so far as they are
supposed to bear upon the point under consideration. In
the first of these, which was the case of a drain passing
under two or more houses originally belonging to one person,
who had sold and granted them separately at auction on the
same day, to distinct owners, no mention was made of the
drain in the conveyance. The judge instructed the jury that
if, with reasonable labor and expense, a drain could be made
without going through the plaintiff's (the lower) house, the
owner of the other house had no right to enter and open the
drain on the plaintiff's premises, and the jury found that
such drain could be made. The court put the question of
right of casement upon the construction to be given to the
deed, in which the intention of the parties was not expressed
in terms. Tliey distinguish between an artificial drain and
1 Post, p. 82 ; 2 Mete. 234. "^ 2 Cush. 327.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 67
a watercourse, the latter of whicli no proprietor lias a right
to obstruct or divert, nor is it affected by any unity of
ownership of two estates over which it flows. In case of an
artificial drain passing from one parcel through another, and
the owner grant the first, " such drain may be construed to
be de facto annexed as an appurtenance and pass with it."
Whereas, if the grant be of the second or lower parcel,
while the grantor owns the first, " it might reasonably be
considered that, as the right of drainage was not reserved in
terms, when it naturally would be if so intended, it could
not be claimed by the grantor. The grantee of the lower
tenement, taking the language of the deed most strongly in
his favor and against the grantor, might reasonably claim to
hold his granted estate free of the encumbrance." This,
however, was obiter reasoning on the part of the court, for
they add, " but neither of these rules will apply to the
present case," the conveyances of the two parcels being
simultaneous, and being like a partition between two tenants
in common, " where each party takes his estate with the
rights, privileges, and incidents inherently attached to it,"
rather than the case of grantor and grantee, where the
grantor conveys a part of his land by metes and bounds, and
retains another part to his own use. In the case of Johnson
V. Jordan, certain easements and servitudes were attached
to the parcels granted, and were described in the conveyances.
But as this right of drain was not mentioned, " and as it was
not necessary to the enjoyment of the estate, and had not
been de facto annexed so as to pass by general words as
parcel of the estate, it did not pass by force of the deed."
In Thayer v. Payne, the grant was of the upper of two
parcels, the grantor retaining the lower one. It was held,
that if the use of the drain was necessary to the beneficial
enjoyment of the premises granted, the right to use it would
pass. But the court add, " the settlement of this question
will, of course, involve the inquiry, whether or not a drain
could be conveniently made with reasonable labor and ex-
68 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
pense, without going through the plaintiff's land. Because,
if the defendant can furnish his house with a drain, it cannot
be necessary to the enjoyment of his estate that he should
have a drain through the land of the plaintiff." And the
language of the court, in Carbrey v. Willis, bearing upon the
point of substituting a new drain, in determining liow far the
one in use is to be regarded as necessary, is, " this necessity
cannot be deemed to exist if a similar privilege can be
secured by reasonable trouble and expense." " Where the
easement is only one of existing use and great convenience,
but for which a substitute can be furnished by reasonable
labor and expense, the grantor may, certainly, cut himself
off from it by his deed, if such is the intention of the parties.
And it is difficult to see how such an intention could be more
clearly and distinctly intimated than by such a deed of
warranty." And this doctrine is reaffirmed in Randall v.
McLaughlin.
The English doctrine of Pyer and Carter seems to be, that
if one owns two houses, and, what is true of most houses, a
drain of some kind is necessary for them, and the owner
makes this a common drain for both by its passing from the
upper under the lower house, and this arrangement of its
parts is obvious and apparent to any observer ; and he con-
veys one of these to another who sees and knows the condi-
tion of the two estates, the drain is to be regarded as it were
a parcel of the thing granted, an easement or servitude, as it
was the upper or lower house which was granted, and that
all covenants and grants in his deed would have reference to
this state of things, and be construed accordingly. He
would by his covenant warrant the premises as they were,
instead of extinguishing and abandoning the enjoyment of
what had been obviously provided and intended as a means
of what was necessary to the enjoying of the upper premises,
merely because he warranted the lower one to be free of en-
cumbrances. This view of the law treats such a drain as if
it were a permanent watercourse, without distinguishing be-
Sect. 8.] ACQUIRING EASEMENTS BY GRANT. »t 69
tween its flowing from a spring upon the surface of the soil,
or a variety of smaller springs opened by digging the cellar
upon tlie upper lot, the water of which must be disposed of
by an artificial watercourse, as much as that from a surface
spring by its natural course.
The cases of Johnson v. Jordan and Carbrey v. Willis;
seem to concede the doctrine of an easement being granted
or reserved by implication in a grant in all cases where " the
easement is strictly one of necessity." But, ordinarily, deeds
are construed by the language in which they are expressed,
if -there is no reference made to extraneous circumstances.
And, inasmuch as it is just as competent for the owner of
premises, if he so intends, to extinguish a necessary ease-
ment as it is to extinguish a convenient one, to fill up his
cellar or abandon its use as to dig a new drain, it is not
easy to see why a mere covenant of warranty against en-
cumbrances should be held to be any more an abandonment
of the easement in the one case, in the absence of any words
to indicate it, than in the other. The cases are numerous
where the extent of the covenants in a deed are limited by
what " the deed in its descriptive part purports to convey." ^
And the question naturally arises, why, so far as words go,
the same covenant in one case should be held to intend to
relinquish an easement, and not to do it in another. And
as to the policy of the two rules, the English must be re-
garded as the more definite and easy of application, since
what is " reasonable labor and expense " in providing a new
drain, in any given case, is a mere relative term, depending
upon the circumstances of each particular case. What is
reasonable in the country might not be in the city, and what
is, by that standard, necessary for a cheap, poor house, would
not be for a costly or expensive one.
It may not aid, perhaps, in settling a question like this, to
refer to other decided cases, but there are some which seem
to bear upon the general principles involved in this distinc-
1 Miller v. Ewing, 6 Cush. 40 ; Adams v. Koss, 1 Vrooiu, 509.
70 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
tiou between the cases of Pyer v. Carter and Carbrey v.
Willis. In a case in Pennsylvania, where the question was
whether an existing highway was an encumbrance, within
the meaning of covenants in a deed, the court say, " if there
be a public road or highway, open and in use upon it (the
granted estate), he must be taken to have seen it, and to
have fixed, in his own mind, the price that he was willing to
give for the land with a reference to the road, either making
the price less or more as he conceived the road to be inju-
rious or advantageous to the occupation and enjoyment of
the land." i
In New Ipswich Co. v. Batchelder, the right to use an
artificial canal passed with a grant of the mill, although it
extended beyond the parcel as granted by metes and bounds.^
And in Nicholas v. Chamberlain, as already said, the court
held that an artificial aqueduct would pass or be reserved by
implication, upon a grant of the house to which it was ap-
purtenant, or the land in which it was laid, as the case
might be, though it was not named.^
Parke B., in Pheysey v. Vicary, says: " If it is necessary
to the safety of a house that the water should flow down a
drain, the right of watercourse through it is reserved by im-
plication in every grant of the house." *
And in Hurd v. Curtis, where one had a certain privilege
of water for a mill, which used to flow from the dam to his
mill in an artificial trench, across an intervening piece of
land which he Conveyed to another person while so used, the
court suggest whether he did not, by implication, reserve a
right to have the trench kept open, as it was the open and visi-
ble mode of operating the mill, though of this they did not
give any decided opinion.^
And the case of Seymour v. Lewis, above referred to, is a
case of a reserve of the water of a spring by implication, in
1 Patterson v. Arthurs, 9 Watts, 154. Sec also Lampnian v. Milks, 21 N. Y.
50.5 ; post, p. *48.
2 3N. II. 190. MG M. & Wclsb. 489.
3 Cro. Jac. 121. ^ 7 Mete. 115.
Skct. 3.] ACQUIRING EASEMENTS BY GRANT. 71
land granted, in which no mention of such easement was
made.^
The American annotator of 1 B. & Smith's Reports, in a
note to Pearson v. Spencer, says : " It may be considered as
settled in the United States, that, on the conveyance of one
of several parcels of land belonging to the same owner, there
is an implied grant or reservation, as the case may be, of all
apparent and continuous easements or incidents of property,
which have been created or used by him during the unity of
possession, though they could then have had no legal ex-
istence apart from his general ownership." And he cites
numerous cases as tending to establish that general propo-
sition.^
But while this would seem to sustain and be fully sus-
tained by the case of Pyer v. Carter, the inference to be drawn
from Carbrey v. Willis and Randall v. McLaughlin, seems to
be, that though this would be true where the dominant estate
is conveyed and the servient estate reserved, it would not
be so where the servient estate is granted and the dominant
reserved, unless the easement claimed is one strictly of
necessity and another cannot be substituted at reasonable
labor and expense.^
But to bring a case within the principle of Pyer v. Carter,
there must be a knowledge on the part of the grantor, as
well as the grantee, that that which is claimed as an ease-
ment in favor of the estate granted, existed and had been en-
joyed. Thus, where a land company conveyed to a purchaser
a parcel of land designated by metes and bounds, on which
the grantee, without their knowledge, had erected and was
then using a mill, the dam of which flowed other lands of the
grantor's than those conveyed, it was held that the purchaser
did not, thereby, acquire any right to flow those lands as an
easement appurtenant to an existing mill.^
26. The doctrine is broadly stated, that, upon the sever-
1 13 N. J. 439 ; ant,^, pi. 25. 3 gee post, p. *529.
2 Post, pp. 73, 7G, 77 ; 101 Eng. C. L, 586. * Tabor v. Bradley, 18 N. Y. 109.
72 THE LAW OF EASEMENTS AND SERVITUDES. [Ca. 1.
ance of a heritage by a grant of a parcel of it, it will, by
implication, pass all those continuous and apparent case-
ments which have in fact been used by the owner during
the unity of ownership and possession, though they have no
legal existence as proper technical easements. And in ap-
plying this doctrine, it is competent to show, by parol,
[*45] what * had been used and were in use as appurtenances
of the estate, at the time of its conveyance, but not to
show what the parties intended to embrace in the deed as
easements.^
Where a deed poll of an estate recited that the grantor or
his heirs was to have a right of way over the granted prem-
ises to the grantor's other lands, it was construed to bo a res-
ervation of a way to the grantor, and to secure to him the
way, not merely in gross, but as appurtenant to his estate.
And it was further held by the court, that, had the way been
fenced out and in use, such a recital in the deed would have
been, in effect, an exception from the grant, and the way
would thereby have become appurtenant to the grantor's
other land.2
In Durel v, Boisblanc, where two houses standing upon
two lots, with an alley between them, were sold, and it was
obvious that the only access to one of these was tlirough this
alley, and they were sold at the same time, but nothing was
said in the deeds of any right of passing over tliis alley to
the premises, it was held that as to one of the houses an
easement, and as to the other a servitude of way over this
alley, were created by the grant of the parcels standing in
such relation to each other.^
The right in such cases, it will be perceived, is not simply
that of a way of necessity, which is limited in its duration
1 Kcnyon v. Nichols, 1 R. I. 411. See Elliott v. Rhett, 5 Rich. 403 ; Glave v.
Harding, 3 Ilurlst. & N., Am. cd. 937 ; 2 Washb. Real Prop. 38, 54, 56 ; Har-
wood V. Benton, 32 Vt. 24 ; Code Nap., Art. 694 ; ante, sect. 1, pi. 21 ; M'Carty
V. Kitchenman, 47 Penn. 243 ; Evans v. Dana, 7 R. I. 310.
'^ White V. Crawford, 10 Mass. 183, 188.
8 Durel y. Boisblanc, 1 La. Ann. 407.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 73
by the necessity, but becomes permanently appurtenant to
the principal estate by the force and effect of the deed it-
self.
27. The case of Elliott v. Rhett was that of a rice-swamp,
in which ditches regulating the flooding and draining of
the same had been dug and were in use, and the same was
sold in separate parcels. The court say : " Those
*benefits or inconveniences which, according to the [*46]
scheme of culture that was adopted by the owner of
the whole body of land, were enjoyed or suffered by a par-
cel thereof that he has sold, provided they arc of an uninter-
mitting character, and are shown by external works, pass
with the parcel as necessary incidents of the land. They
are like the natural easements of running water and sup-
porting soil." Accordingly it was held, that if, when con-
veyed in parcels, an artificial embankment upon one parcel
regulated tlie flow of the water, and prevented its flooding
other parts, it would be regarded like a natural embank-
ment. And a temporary break in the same, existing at the
time of the conveyance, would make no difference, unless
the owner had thereby introduced and adopted a new and
permanent system of management of the estate, or an aban-
donment, at least, of the former one. The court add : " The
natural easement, if any existed, was once superseded by
the disposition of the owner of the two tenements ; the arti-
ficial easement which he created, whatever may have been
its extent, existed at the time of the sale, and is in no
respect entitled to less consideration than if it existed by
nature." ^
A recent case in New York was decided in accordance
with the general doctrine above stated, though the facts
were not identical with those of the cases cited. In that
case a man died having several lots of land with buildings
thereon in the city, situate at the intersection of D. and E.
streets, three fronting on D. Street, running back to an alley
1 Elliott V. Rliett, 5 Rich. 405, 415, 419.
74 THE LAW OF EASEMENTS AND SERVITUDES. [.[Ch. I.
which runs from E. Street along in the rear of them all, and
along the side of the lot which fronted on E. Street. This
alley had hecn used for the accommodation of these front lots
on D. and E. streets for forty years, by the owner of tlie entire
estate. After his death his heirs conveyed one of the
[*47] lots on D. Street, " together with all tenements, *here-
ditaments and appurtenances thereto belonging," and
described it by a line running so and so, " to the southerly
side of an alley-way," and " thence along the said alley-way,"
so many feet. In their deed of the estate on E. Street, the
alley is excluded by the boundaries and description of the
premises, though no reference is made to it in the deed.
Without specifying the terms of the deeds of the other parcels,
the question was whether the right of way through and over
this alley from E. Street to the first-mentioned lot was
conveyed. It was held that it could not pass under the terra
" appurtenances," for the owner could not be said to have a
right of way over his own land appurtenant to another parcel
of his own land. But it having been in open use for the
accommodation of the lot at the time of its conveyance, it
was held that it passed as incident to the grant of the princi-
pal estate. " It is," say the court, " a general rule that,
upon a conveyance of land, whatever is in use for it as an
incident or appurtenance passes with it. The law gives such
a construction to the conveyance, in view of what is thus
used for the land as an incident or appurtenance, that the
latter is included in it. Whether a right of way or other
easement is embraced in a deed, is always a question of con-
struction of the deed, having reference to its terms, and the
practical incidents belonging to the grantor of the land at
the time of the conveyance."
It will be perceived that the easement in this case was not
spoken of as .one of necessity. The principal estate fronted
upon a pul)lic street, and was therefore accessible otherwise
than by this alley. The existence of a known and continuous
use of the thing claimed in connection with the thing granted,
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 75
at and prior to the time of the grant made, raises the impli-
cation of an intent to embrace it in j.hc grant. ^
In accordance with this principle, where one sold lots
fronting upon an open space which had once been occupied
by a railroad, but, afterwards, upon a surrender of that,
as a hi<j;liway, it was held that the use of the highway as a
means of access to these lots became annexed to them by
the grant, and could not be defeated by the grantor, as
owner of the soil of the higliway, upon the same being dis-
continued, since the grantor could not take away what he
had once granted by force of his deed.^
So where the owner of a block or square of city land made
partition thereof, by deeds, among several persons,
*and in each deed bounded the lot by an alley running [*48]
through the block, each proprietor of a lot became
entitled to a private way in the alley .^
28. The recent case of Lampman v. Milks presents an
elaborate examination and discussion of the effect of granting
an estate with which the grantor had been accustomed to use
certain privileges in the nature of easements, though not
naturally belonging to them, nor properly appurtenant to the
same, nor granted by deed, with the principal estate, in
express terms.
C, owning forty acres of land through which a natural
watercourse ran, flooding half an acre of the same, changed
the natural course of the stream by an artificial channel
which he dug, leaving this half-acre thereby dry and fit for a
building lot. After the water had flowed in tliis cliannel for
several months, he sold the half-acre to tlie plaintiff, and
continued for near ten years to own and occupy the remain-
der of the land. He then sold it to the defendant, who soon
after stopped the artificial channel, and diverted the stream
into its original course. In an action for the injury thereby
occasioned, the question arose whether the purchaser of the
1 Hutteineier v. Alhro, 2 Bosw. 546 ; s. c, 18 N. Y. 48.
2 Plitt V. Cox, 43 Penn. 488, 3 Q.^^-Hn v. Paul, 1 1 Mo. 32. j
76 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
remainder of the forty acres took it as it was when granted
to him, or took it with a right to have the natural flow of the
stream restored to its original watercourse ; or, in the lan-
guage of the court, " Whether an owner who, l)y such arti-
ficial arrangements of the material properties of his estate,
has added to the advantages and enhanced the valup of one
portion, can, after selling that portion with those advantages
openly and visibly attached, voluntarily break up the arrange-
ment, and thus destroy or materially diminish the value of
the portion sold ? "
So long as both parts belonged to the same owner, there
could be no easement in favor of one part or servitude
[*49] upon *another. But the doctrine of the court was,
that when the owner of two tenements sells one of
them, or the owner of an entire estate sells a portion of the
same, the purchaser takes the tenement, or the portion sold,
with all the benefits and burdens which appear, at the time
of sale, to belong to it, as between it and the property which
the vendor retains. Nor is this a rule in favor of purchasers
alone ; and if, instead of a benefit conferred, a burden be
imposed upon the portion sold, the purchaser, provided the
marks of the burden be open and visible, takes the property
with the servitude upon it. The parties are presumed to
contract in reference to the condition of the property at
the time of the sale. The court, accordingly, held that
the purchaser, in this case, took his estate discharged of
the original servitude of the overflow by the waters of the
stream.
In the course of his opinion, the judge refers to and re-
views several of the earlier and later leading cases, in which
the questions above suggested were more or less directly
considered. Among them was William Copie's case,^ where
one having two tenements, and a gutter from one of them
ran over or across the other, sold one tenement to one and
1 Copie's case, Year B. 1 1 lien. VII. 25 ; Dodd v. Biireliell, 1 II. & Colt, 121,
per Martin B.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 77
the other to another ; and it was held that the easement
and servitude of the gutter passed with the respective estates
by the form of the grant. He also cited the case of Nich-
olas V. Chamberlain, where the owner of an estate con-
structed an aqueduct from a spring on the same to the
dwelling-house standing thereon, and then granted the dwell-
ing-house. It was held to carry with it the easement of the
aqueduct. 1 Also the cases ^ which are found more at length
in another part of this work, remarking that neither of these
came within that class of grants where easements have
been held to pass under broad and *comprehensive [*50]
terms, such as " a mill," " a messuage," " a farm,"
and the like, under which the same were virtually included
as a part of the thing thereby described, as has already been
explained.^
29. The court, in the principal case above cited, in order
to carry out their illustration of the circumstances under
which an easement will pass by a grant of the estate with
which it is to be enjoyed, state the case of one owning a
dwelling-house opening upon a vacant piece of land belong-
ing to him, over which it receives light and air. If he con-
veys the house by itself, neither he nor his grantee may after-
wards build upon the vacant lot so as to obstruct the windows
of the house ; and they refer to Palmer v. Fletcher,'* Riviere
V. Bowers,'^ Compton v. Richards,^ Coutts v. Gorham," and
Story V. Odin,^ which will be again referred to in connection
with easements of light and air.^
1 Nicholas v. Chamberlain, Cro. Jac. 121.
2 Robins v. Barnes, Hob. 131 ; United States v. Appleton, 1 Sumn. 492 ; New-
Ipswich W. L. Factory v. Batchekler, 3 N. H. 190 ; Dunklee v. Wilton R. R., 4
Fost. 489.
^ Lampman v. Milks, 21 N. Y. 505. See White v. Chapin. Allen, not yet
reported. Post, p. 129.
* Palmer v. Fletcher, 1 Lev. 122.
^ Riviere v. Bowers, Ry. & M. 24.
® Compton V. Richards, 1 Price, 27.
■^ Coutts V. Gorham, 1 Mood. & M. 396.
^ Story V. Odin, 12 Mass. 157. See also Swansborough v. Coventry, 9 Bing.
305.
9 Sec White v. Bass, 7 H. & Norm. 722.
78 THE LAW OF EASEMENTS AND SERVITUDES. [Cir. I.
30. The court also refer to anotlier class of easements,
by way of illustration, which are treated of in this work,
and that is the right which one man has, under certain cir-
cumstances, to a support of his dwelling-house by the land
of another, or by the walls of an adjoining tenement. Thus,
for instance, if one owning a dwelling-house with the adjoin-
ing land convey the house, neither he nor his assigns could
lawfully excavate the adjoining land, so near to the founda-
tion of the house as essentially to impair its security, as was
settled in the case of Lasala v. Holbrook.^
So if the owner of two lots erect a house upon one whose
eaves discharge the water upon the other, and sell the
[*51] house *in that state, the right thus to discharge the
water passes with the house as an easement, and a
servitude upon the adjacent lot.^
31. The case of Thayer v. Payne ^ was also cited in the
same case. But it seems to rest rather upon the doctrine,
that what is necessary to enjoy a thing granted passes by a
grant of the principal thing, than that of an implied ease-
ment, growing out of the principal estate, having been used
in a particular manner by the grantor. The subject of in-
quiry in that case was a drain connected with two tenements,
one of which had been granted to the defendant by the plain-
tiff. The drain led from the defendant's tenement through
the plaintiff's, and was held to pass, as an easement, with
the defendant's tenement, although not granted in terms,
because the jury found it necessary to the enjoyment of the
same. Had it been otherwise, though existing at the time
of the conveyance, it would not have passed.*
32. The general subject may be further illustrated by the
case of Hinchliffe v. Kinnoul, where there had been a long
1 Lasala r. llolln'ook, 4 Paige, 169 ; post, chap. 4 sect. 1, pL 7.
- Alexander v. Boghel, 4 La. 312.
8 Thayer v. Payne, 2 Ciish. 327. See also Brakcly v. Sliarj), 1 Stockt. 9, 17 ;
Johnson v. Jordan, 2 Mete. 234, 240 ; Ferguson v. Witsell, 5 llich. 280 ; Pycr
V. Carter, 1 Ilurlst. & N. 910.
* Ante, p. G7.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 79
lease of land, during which houses had been erected thereon
by the lessee or his assigns, and a sub-lessee of one of the
tenements had made use of a passage-way along the side of
it, through which a " coal-shoot " had been used by him for
supplying the house with coal, and water-pipes had been laid
along this passage-way for supplying the house with water,
and in making repairs to the house this passage-way had been
used as a means of access thereto. A few years before the
expiration of the general lease of the premises, the reversion-
er of the entire estate made a reversionary lease of the tene-
ment above mentioned, in which he described it with
great exactness, and added, " together with *all and [*523
singular the appurtenances unto the said piece or
parcel of ground, messuage, or tenement, erections, build-
ings, and premises belonging or anywise appertaining." The
question was, if the right of passage, &c. passed under this
lease, inasmuch as they never could have become appurte-
nant as against the reversioner, and he only granted such es-
tate as he had. It was held, that, being in existence, and ne-
cessary to the enjoyment of the leased premises, they passed
therewith as necessarily incident thereto, although not spe-
cially named in the lease. The court, however, waived the
question whether these were properly appurtenant to the
thing granted, and held that it was enough that the lease
was made by a party who was entitled to the reversion both
of the house and the soil of the passage-way, and had a right
to grant or continue the existence of such right at the time
the lease was to come into operation and effect, and tlie words
of the lease would admit of that construction.^
33. The case of Pheysey v. Vicary may also be referred
to as a further illustration of what passes by way of easement
upon the severance of one or more tenements. In that case
the owner of two dwelling-houses, standing near each otlier,
1 HinchlifFe v. Kinnoul, 5 Bing. N. C. 1. See post, chap. 5, sect. 1, pi. 7,
where this case is again referred to, upon the question of the effect of unity of
title of two estates upon an existing easement. See also Osborn v. Wise, 7
Carr. &P. 751.
80 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
devised one to the plaintiff, and the other, " and the appur-
tenances thereto belonging," to the defendant. There was a
wrought track from the street along in front of the defend-
ant's house continued on in front of the plaintiff's, which,
passing around a circular plat, returned into the street over
the same track as that by which it commenced ; and this
track had been used as the means of access to the two
houses, although there was a means of access from the street
to each of the houses from the rear of the land on
[*53] which the houses stood. Tlie question was, *whether
the plaintiff had a right to use this wrought track as
a means of access to his house. It was claimed, not as a
way of necessity, but as appurtenant to the estate devised
to him by reason of having been thus used.
It was contended that the way in this case came within
the principle of a destination du pere de famille of the civil
law, which Pardessus defines, " La disposition ou I'arrange-
ment que le proprietaire de plusieurs fonds a fait pour leur
usage respectif " ; and which, by the Code Napoleon, " has
the effect of writing in regard of continual and apparent ser-
vitudes." The Code of Louisiana declares such use as the
owner has intentionally established on a particular part of
his property in favor of another part, to be equal to a title
with respect to perpetual and apparent servitudes thereon.
But the court, Parke B., held that " the way can only pass
in one of two modes, viz. either under the word ' appurte-
nances ' in the will, or as of necessity. A right of way to
one of two houses, though of necessity, may be extinguished
by unity of ownership or possession, though, when either
house is regranted singly, it would pass by implication as
necessarily incident to that grant." That all that passed in
this case, under the term appurtenant, was a way of neces-
sity, which does not come under the class of continuous or
permanent easements, but was one to be exercised only from
time to time, and only while the necessity continued. " If
it is necessary to the safety of a house that water should flow
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 81
down a drain, the right of watercourse through it is reserved
by implication in every grant of the house." ^
But if the drain of one house be so badly construct-
ed as *to be a nuisance to the house through which it [*54]
passes, and the owner of both lease the latter, retaining
the former, he will be liable for suffering it to remain so,
though in the same condition as when leased. The law does
not, in such case, reserve to him anything more than a
reasonable use of such drain.'^
34. In determining whether a right like that of a drain or
other easement shall pass, by implication, with premises
under a grant, though not mentioned, much stress is laid
upon its being of an apparent and continuous character,
and in one case the objection was taken, that, when the pur-
chaser of one of two tenements acquired his title, he did
not know of the existence of the drain, the same being
under ground. But the court held that he must have
known that the tenement claiming the drain must have some
drainage, and he was therefore bound to examine and as-
certain its existence, and that no actually "apparent signs"
were necessary to charge him with notice of the same.^
But still, in order that an easement should thus pass, by
implication, under the grant of an estate, it must be one that
is apparent as well as continuous, and such as is indicated
by the condition of the premises at the time of the grant.
And where there were skeletons of buildings standing to-
gether, with openings in them, but apparently uncertain
whether for doors or windows, a right of a particular way as
belonging to the premises would not pass as one of its appur-
tenances by a conveyance of one of the houses in that state.*
1 See ante, sect. 1, pi. 21 ; Pheyscy v. Vicary, 16 Mees. & W. 484 ; White v.
Leeson, 5 Hurlst. & N. .53 ; Pardessus, Traite des Servitudes, 430, 431 ; Glave
V. Harding, 3 Hurlst. & N., Am. ed. 937 ; Code Nap., Art. 692 ; La. Civ. Code,
Art. 763 ; ante, p. *44.
2 Alston V. Grant, 3 Ellis & B. 128.
3 Pyer v. Carter, 1 Hurlst. & N. 922.
* Glave V. Harding, 3 Hurlst. & An., Am. ed. 937, 945.
6
82 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
35. This subject is more fully examined in Johnson v.
Jordan, already cited. That was also a case of a drain from
one tenement through another, which had been used
[*55] by the *owner of both tenements when they belonged
to one and the same person. So long as he owned the
two, he could convey the one with or without the encumbrance
or advantage of the drain, as he might elect, depending, of
course, upon his intent as expressed in his deed. In the ab-
sence of anything relative to the drain in a deed of one of the
parcels, the question was, what construction did the law give
to such deed in respect to such drain? An important circum-
stance appeared in the examination of the case, which was,
that the slope of the ground was such as not to require that
the drain from the one tenement should run through the
other, but admitted of constructing a new drain for the upper
tenement, at no disproportionate expense, without interfering
with the lower one, although the drain in its present form
was a convenient one, and had been in use before the con-
veyance. The court held that such rights of water-way or
drain as would be easements under the ownership of the two
estates by different persons, and were necessary to the en-
joyment of the thing granted, and had been previously used
with the estate, would pass as appurtenant to the same. If,
therefore, one owning two tenements have a drain from the
one over or through the other, and he sell the first with its
appurtenances, it would pass the right of drain as being de
facto annexed as an appurtenance. But if he were to con-
vey the lower tenement, making no mention of the drain in
his deed, he would not be considered as reserving a right of
drain from his remaining tenement through the one granted.
In that case, however, the owners of the several tenements
acquired their titles to the same by simultaneous convey-
ances from the original owner, and it was held that they
were to be considered in the light of tenants in common,
who had made partition of their estates, when each party
takes his estate with the rights, privileges, and incidents in-
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 83
herently attached to it, rather than as grantors and grantees.
It was held, that, as no mention was made of tlie
drain in the deed, and as it was not * necessary to the [*5G]
enjoyment of the upper tenement, tlie right to use it
did not pass by the conveyance.^
3G, Thus where the owner of a parcel of land made a
ditch therein, whereby the upper part of it was drained, and
subsequently conveyed this part of it with a part of the ditch,
retaining the part with the ditch through which the part so
conveyed was drained, it was held that he could not after-
wards stop the ditch so as to prevent the water being drained
from the vendee's land.^
So where one owning two estates near each other, through
one of which flowed a stream of water, leased the other par-
cel, and authorized the tenant to divert the water from the
one on to and through the other, and while in that condition
sold the latter with all watercourses and appurtenances,
it was held that he was not, after such sale, at liberty to stop
the water from flowing through the granted premises, and
thereby restore the stream to its original state.^
It is stated in Jenkins's Centuries : " A way is extin-
guished by unity of possession, and is revivable afterwards,
upon a descent to two daughters, where the land through
which, &c. is allotted to one ; and the other land, to which
the way belonged, is allotted to the other sister ; and this
allotment, without specialty to have the way anciently used,
is sufficient to revive it." *
One owning lands upon both sides of a stream raised a
dike along one bank to prevent the water from overflowing
the land on that side, the effect of which was to throw more
water than had before been done upon the opposite bank.
1 Johnson v. Jordan, 2 Mete. 234. See Nichols v. Luce, 24 Pick. 102; God-
dard v. Dakin, 10 Mete. 94 ; New Ipswich W. L. Factory v. Batehelder, 3 N. H.
190; Nicholas v. Chamberlain, Cro. Jac. 121 ; ante, p. 66.
- Shaw V. Ethcridge, 3 Jones, No. C. 300.
3 Wardle v. Brocklehurst, 1 E. & Ellis, 1058.
* Jenk., case 37. See also James r. Plant, 4 Adolph. & E. 749.
84 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
After his death his estate was divided among his heirs, one
heir taking the land upon one side, and another that upon
the other side of the stream. The latter heir then erected
a dike upon his side of the stream, the effect of which was
to protect his own land, and throw an increased amount of
water upon the opposite bank, which had in the mean time
been conveyed by the first heir to a stranger. The court
held that the heirs took the estate in the condition in which
the same was at the father's death, subject, of course, to the
dike which he had constructed, in the same way as if it had
been a natural one, and therefore that the new dike
[*57] was a *nuisance to the land upon the opposite side of
the stream. The same would have been the law if
the ancestor had conveyed the land with the dike upon it ;
he would not have had a right to erect one on his own side
of the stream.^
So where the estate of a deceased was divided between two
heirs by metes and bounds. Upon one of the parts was a
mill, but the dividing line of the estates cut off a part of the
dam, leaving it within the limits of the other part of the
estate. It was held that the owner of the mill had a
right to keep up and maintain that part of the dam which
was cut off by the dividing line, the same being neces-
sary to the enjoyn^ent of the mill which had been set to
him.^
37. The case of Brakely v. Sharp was one where this doc-
trine of an easement passing, or otherwise, with part of an
estate upon the division of a heritage, was twice considered,
and may be regarded as a leading one upon the subject. In
that case, the intestate owned two farms at his death, with a
house on each, and had constructed an aqueduct from a
spring upon one of them to both these houses. Upon his
death, the farm upon which was the spring, was set to the
1 Burwcll V. Ilobson, 12 Gratt. 322.
2 Kilgour V. Ashcom, 5 Harr. & J. 62 ; Tyrringliam's case, 4 Rep. 36. Sey-
mour V. Lewis, 13 N. J. 439 ; Elliott v Sallce, 14 Oliio St. 10.
Sect. 8.] ACQUIRING EASEMENTS BY GRANT. 85
widow and one lieir, and the other farm to the other heir.
The question arose as to the effect of this partition upon the
right which the owner of the second farm had to share, in
connection with his house, in the benefit of this aqueduct.
The Chancellor held, that if the ancestor, while owning both
farms, had conveyed to a stranger the one which was set to
the widow, he would have lost all benefit of the aqueduct as
an easement, if he had not expressly reserved it in his deed.
It would have been derogating from his own grant to have
claimed it, unless expressly reserved. In this respect there
was an essential difference between a natural and an arti-
ficial watercourse, as the former, when it passes, passes as
a right ex natura ; and for this the Chancellor cited
*Hazard v. Robinson. But in the present case the [*58]
widow and heir did not stand in the light of purchasers
from the ancestor. All the heirs came in with equal rights,
and no preference arose from mere priority of assignment.
It became, therefore, a question, whether this aqueduct was
necessary for the enjoyment of the farm set to the other heir.
If it was, it would pass like a right of way of necessity, and
as it appeared that it was the only way by which the house
was supplied with water, it was held that it passed with the
farm with which it had been enjoy ed.^
38. Where an easement is secured to a dominant estate,
and is designed to benefit the same in whosever hands it may
be, it will, as a general proposition, enure to the benefit of
the owner of any part of the same into which it may be
divided, provided, the burden upon the servient estate in-
tended to be created is not thereby enhanced. Thus, where
one sold a parcel of land for building purposes, which
opened upon a vacant area which was to be kept open for
air and prospect, the plaintiff, having become the owner of
a part of this estate, was held entitled to an injunction
against the owner of the open area to prevent his building
thereon, although he held under a grant from the original
1 Brakely v. Sharp, 2 Stockt. 20G ; Hazard v. Kobinson, 5 Mason, 272.
86 THE LAW OF EASEMENTS AND SERVITUDES. [Cu. I.
grantor, and the original grantee had consented to his build-
ing upon the vacant land.^
And it is often stated, that a way appurtenant to a close is
appurtenant to every parcel into which this close may be
divided. But it should be limited, however, it would seem,
so that no additional burden is thereby created upon the
servient estate.^
[*59] *Thus, in the case of Underwood v. Carney, a grant-
or owned a passage-way with an estate upon the east
and one upon the west side of it. He sold the estate on the
east side with a right of way over this passage-way, reserving
a right to erect a fence along the west side of it which should '
not narrow it more than so many inches. He afterwards
divided his estate upon the west side by conveying parts
of it to two different individuals, and the question was
whether each of these had a right of way over this pas-
sage-way. The court held that they had, that the right
of way was appurtenant to the whole and to every part of
this estate, and that the owner of each part took it with
this right of way attached to it, although it was not named
in the deed.^
So in Watson v. Bioren, where the parcel granted was a
lot in a city, ten feet in width, bounded by an alley three
feet wide, and the grantee divided this parcel into two, the
court held that the right of way belonged to both parcels :
" When land is conveyed with a right to the grantee, his
heirs and assigns, to pass over other land, this right is ap-
purtenant to all and every part of the land so conveyed, and,
1 Hills V. Miller, 3 Paige, 254, 257 ; 2 Washb. Keal Prop. 32 ; 3 Kent, Comm.
420; Barrow v. Richard, 8 Paige, 351. See Maxwell v. East River Bank, 3
Bosw. 124. Brouwer y. Jones, 23 Barb. IGO; Gibert ». Peteler, 38 Barb. 513,
514 ; Easter v. L. M. R. Road, 14 Ohio St. 54 ; post, p. *63.
2 Whitney v. Lee, 1 Allen, 198 ; Underwood v. Carney, 1 Cush. 285 ; Watson
V. Bioren, 1 Serg. & R. 227 ; Staple v. Ilcydon, 6 Mod. 1 ; Codling v. John-
son, 9 Biirncw. & C. 933 ; Hills v. Miller, 3 Paige, 254 ; post, ehap. 2, sect. .%
pi. 18.
' Underwood v. Carney, 1 Cush. 85.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 87
consequently, every person to whom any part is so conveyed
is to enjoy the riglit of passage." ^
But this doctrine wouhl seem to bo limited to cases where
the casement annexed to the land was a general one, in-
tended to accommodate one part of the granted parcel equally
with another, and not to be enjoyed with some particular
part of it, or for special and limited purposes. Thus, where
the owner of a public house near a river had a right of pas-
sage by boats, by the river, for himself and his servants to
bring corn for the use of the house, and brick, tile, and
materials for repairing the same, and to land them upon
the frontage of the establishment, it was held that no oc-
cupant of this frontage could claim to exercise the
*same right unless he was also occupant of the public [*60]
house.^
39. And the proposition is universally true, that if one
acquires a right of way to one lot or parcel of land, he can-
not use it to gain access first to that parcel, and thence over
his own land to other lands belonging to him. So far as he
should use it for access to or accommodation of other parcels
than the specific one to which it is appurtenant, he would be
a trespasser.'^ So when the owner of a well granted to the
owner of an adjacent estate a right to take water from it,
and the owner of the latter lot conveyed his estate to the
owner of another estate adjacent to his, with appurtenances,
&c., it was held that the latter did not thereby acquire any
right to take water for the use of the estate which originally
belonged to him by virtue of his having purchased the other
estate.*
1 Watson r. Bioren, 1 Scrg. & R. 227.
2 Bower v. Hill, 2 Bing. N. C. 339. See Allan v. Gomme, 11 Adolph. & E.
759 ; So. Metrop. Cemetery Co. v. Eden, 16 C. B. 42 ; post, chap. 2, sect. 3, pi. 18 ;
Lewis V. Carstairs, 6 Wliart. 193 ; 3 Toullicr, Droit Civil Fran^ais, 496.
^ Lawton v. Ward, 1 Ld. Raym. 75 ; Watson i'. Bioren, 1 Serg. & R. 227 ;
Davenport i\ Lamson, 21 Pick. 72; Case of Private Road, 1 Aslim. 424; Jami-
son y. M'Credy, 5 Watts & S. 129, 140; Viner, Abr. Chimin Private, A. 2;
French r. Marstin, 4 Fost. 440, 451 ; 1 Rolle, Abr. 391 ; Ilowell i-. King, 1 Mod.
190 ; Kirkham v. Sharp, 1 Whart. 323 ; Colchester v. Roberts, 4 Mees. & W. 769.
* Evans v. Dana, 7 R. L 306.
88 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
40. the effect to be given to the division of an estate to
which an easement has attached, is provided for by the Civil
Code of Louisiana. And it was held, in a case where the
owner of an estate divided it by a wall which he erected and
in which a window was inserted, and he then sold the sepa-
rate parcels in this condition, that the easement of light
attached to the parcels, so that, though the owner of one
parcel had boarded up the window upon his side of the wall,
and it was in that condition when the defendant bought the
other parcel, the latter was justified in removing these boards
in order to enjoy the right of the light. ^
41. But where a way, for instance, is created in favor of
an estate for one purpose, or in reference to a particular
use to be made of such estate, it ceases to be appurtenant, if
the estate is essentially changed in its mode of occupation.
Thus, where a way belonged to an open parcel of land for
the use of it as an open parcel, and the owner of the
[*61] same *erected a cottage thereon, covering the entire
space, it was held that by such change in the prem-
ises the right of way was extinguished.^ But a way which
has been gained by prescription is not lost by its ceasing
to be an important right to the owner .^
42. Although it might, perhaps, be difficult to embody the
leading doctrines of the foregoing cases into any general
proposition, it would seem that, in case of a division of an
estate consisting of two or more heritages, whether an ease
or convenience which may have been used in favor of one,
in or over the other, by the common owner of both, shall
become attached to the one or charged upon the other, in
the hands of separate owners, by a grant of one or both of
those parts, or upon a partition thereof, must depend, where
there are no words limiting or defining what is intended to
be embraced in such deed or partition, upon whether such
1 La. Civ. Code, Art. 768-765 ; Lavilleheuvre i'. Cosgrove, 13 La. Ann. 323.
2 Allan V. Gommc, 11 Adolpli. & E. 759.
8 Crounsc v. Wcmple, 29 N. Y. 543.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 89
easement is necessary for the reasonable enjoyment of the
part of such heritage as claims it as an appurtenance. It
must be reasonably necessary to the enjoyment of the part
which claims it, and where that is not the case, it requires
descriptive words of grant or reservation in the deed, to
create an easement in favor of one part of a heritage over
another.
In Archer v. Bennett, there was a mill and a kiln designed
for the use of the mill, but separate buildings. A grant of
the mill with its appurtenances was made, and the question
was if the kiln passed. It was held that it did not pass as
an appurtenant to the mill, being in itself land. But if it
was necessary to the use and enjoyment of the mill, it passed
as a part of the mill, " as by grant of a messuage the con-
duits and water-pipes pass as parcel though they are re-
mote."^
43. It has sometimes been attempted to create an ease-
ment in favor of a dominant estate over a servient one by
estoppel, from the fact of the owner of the latter standing
by and witnessing the expenditure of money by the
owner * of the former, in reference to an enjoyment [*62]
of what would be an important easement to the same,
and acquiescing in the same without notice or objection.
Questions of this kind have arisen in cases of the erection of
costly dwelling-houses whose windows open upon the adjacent
unoccupied premises of another, who has suffered the expenses
of such structures to be incurred without objection or notice
of any intent to exercise a right to disturb the enjoyment of
the same. In one case this was done while tlie servient es-
tate was in the possession of a tenant having a particular
estate, the reversioner being cognizant of such expenditure.
The court say, " The fullest knowledge with entire, but
mere acquiescence, cannot bind a party who has no means
of resistance." And the court go further, and seem to cover
the whole ground, that no such estoppel can be set up in fa-
1 Archer v. Bennett, I Lev. 131.
90 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
vor of the dominant estate. " There may appear to be some
hardship in holding that the owner of a close, who lias stood
by without notice or remonstrance while his neighbor has
incurred great expense in building upon his own adjacent
land, should be at liberty, by subsequent erections, to darken
the windows, and so destroy the comfort of such building.
Yet there can be no doubt of his right to do so at any time
before the expiration of twenty years from their erection." ^
But the ordinary doctrine of estoppel by deed applies in
case of a grant of an easement, so that if a person without
title profess to convey an estate, or to grant an easement, his
conveyance operates by way of estoppel, if at a subsequent
period he acquires the fee, and the subsequently acquired
estate is bound thereby, or, as it is termed, the newly acquired
estate feeds the estoppel.^
And where the owner of an estate has stood by and
[*63] seen *another expend money upon an adjacent estate,
relying upon an existing right of easement in the
first-mentioned estate, and without which such expenditure
would be wholly useless and wasted, and has not interposed
to forbid or prevent it, equity has enjoined him from inter-
rupting the enjoyment of such easement. So where he has
by parol granted a right to such easement in his land, upon
the faith of which the other party has expended moneys
which will be lost and valueless if the right to enjoy such
easement is revoked, equity has enjoined the owner of the
first estate from preventing the use of the easement.^
44. This seems a proper place in which to notice a class of
easements which may be called equitable because chiefly
within the cognizance of courts of equity, to which brief
1 Blancliard v. Bndp;e.s, 4 Adolph. & E. 176 ; see post, chap. 5, sect 7, pi. 7.
2 Per Watson, B., Kowbotham v. Wilson, 8 Ellis & B. 145, cites AVeale v.
Lower, Poll. 54, 68; Rawlyn's case, 4 Rep. 52 a.
3 Tud. Lead. Cas. 109; Anonymous, 2 Eq. Cas. Abr. 522; Short v. Taylor,
Ibid. ; 2 Story, E(|. Jurisp. .388 ; Tarrant v. Terry, 1 Bay, 2,39 ; Powell v. Thom-
as, 6 Hare, .300; CiavcriTif^'s case, cited in last case, p. 304: Williams v. Jersey,
Craig & P. 91 ; Devonshire v. Eglin, 14 Bcav. 530 ; jjost, chap. 3, sect. 4, pi. 23.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 91
reference lias been made, ante, pi. 38. They are also men-
tioned in other parts of the work. But the number and im-
portance of the cases involving such interests which have
recently been decided, demand a more direct and connected
notice of the present state of the law upon the subject. The
principal cases noticed in the first edition of this work were
Barrow v. Richards, Hills v. Miller, and Whitney v. Union
R. Co., nor will it be necessary to refer to these again, ex-
cept in their connection with the cases of a more recent date,
which arc here collected.
An example of the class of easements here intended may
be found in Parker v. Nightingale,^ the facts in which case
were briefly these. The estates in question were situate
upon a "court" or "place" in Boston, and consisted of
several dwelling-houses erected upon each side of a culde
sac, or a street open only at one end. The land on which
these had been erected, originally belonged to several heirs,
who agreed between themselves that it should be laid out
into a court, to be occupied, exclusively, by dwelling-houses,
and that in conveying the lots the grantees should be laid
under obligation by way of condition or limitation of the use
thereof, " that no other building except one of brick or stone,
of not less than three stories in height, and for a dwelling-
house only," should be erected by them. The deeds of the
lots were accordingly respectively made upon this condition,
and the same was referred to or repeated in the subsequent
conveyances. One of the tenants of one of the houses erected
under this arrangement, was about to open a restaurant in
the house which he occupied, and the proprietors of the other
houses in the court prayed an injunction to restrain him
from so doing.
The original grantors had ceased to have any interest in
the court, and it will be perceived that whatever there was
of covenant or condition in the original deeds, was between
the grantors and grantees severally, and not between the
1 Parker v. Nightingale, 6 Allen, 341.
92 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
several grantees, and that, consequently, there was an entire
want of privity between them. And tlie question was if the
several proprietors, holding by independent titles, could en-
force against any one of them the negative easement of not
using the premises except as a dwelling-house. The impor-
tance of the principle involved in this inquiry can hardly be
overestimated in a country where new villages and streets
are being built up, and it is often desirable to define and
limit the character and condition of the buildings to be
erected or tlie purposes for which they may bo occupied.
Bigelow, C. J., in giving the opinion of the court in this case,
sustaining and enforcing this easement, and enjoining the de-
fendant from using his house as a restaurant, goes fully, and
with great clearness, into a discussion of the grounds upon
which it rests. " A covenant, though in gross at law, may
nevertheless l)e binding in equity, even to the extent of fast-
ening a servitude or easement on real property, or of secur-
ing to the owner of one parcel of land a privilege, or, as it is
sometimes called, " a right to an amenity " in the use of an
adjoining parcel, by which his own estate may be enhanced
in value or rendered more agreeable as a place of residence."
" So long as he " (the original purchaser) " retains the title
in himself, his covenants and agreements respecting the use
and enjoyment of his estate will be binding on him personal-
ly, and can be specifically enforced in equity." " A purchaser
of land, with notice of a right or interest in it existing only
by agreement with his vejidor, is bound to do that which his
grantor had agreed to perform, because it would be unconsci-
entious and inequitable for him to violate or disregard the
valid agreements of the vendor in regard to the estate of
which he had notice when he became the purchaser. In
such cases it is true, that the aggrieved party can often have
no remedy at law. There may be neither privity of estate
nor privity of contract between himself and those who at-
tcnqit to appropriate property in contravention of the use or
mode of enjoyment impressed upon it by the agreement of
Sect. 3.] ACQUIRING EASExMENTS BY GRANT. 93
their grantor, and with notice of ^yhich they took the estate
from him." He goes on to show that the purpose of Jhe re-
striction inserted in the deeds was for the benefit and advan-
tage of other owners of lots situated on the same street or
court. " Thus, a right or privilege or amenity in each lot
was permanently secured to the owners of all the other lots."
Nor would it change the result, though the original owners
still retained some of the lots in their own hands. " The
effect of such restriction inserted in contemporaneous con-
veyances of the several parcels, under the circumstances al-
leged, was to confer on each owner a right or interest in the
nature of a servitude in all the lots situated on the same
street, which were conveyed subject to the restriction." And
the bill in behalf of the other proprietors was sustained.
The court had occasion to reaffirm the general doctrine
above expressed, in the subsequent case of Hubbell v. War-
ren, ^ where the defendant conveyed one of several house-lots
upon a public square to the plaintiff, and stipulated in the
deed that the houses to be erected on these lots should not be
set within ten feet of the line of the street ; and it was al-
leged in the bill which was to restrain the defendant from
building within less than .twelve feet of the line of the street,
that, when plaintiff took his deed, the defendant orally agreed
that the houses should not be built within that distance from
the street, and that he the plaintiff had erected his house ac-
cordingly. The court say : " That an agreement between
owners of adjacent parcels of land, restricting the mode of its
use and enjoyment, although not entered into in the form of
a covenant or condition, or so framed as to be binding upon
heirs or assigns by virtue of privity of estate, may neverthe-
less create a right in the nature of a servitude or easement
in the land to which it relates which can be enforced in equi-
ty, is now well settled in this Commonwealth. But, to estab-
lish such quasi-servitude or easement, it must appear, either
by express stipulation or necessary and unavoidable implica-
V Hubbell V. Warren, 8 Allen, 173. See Wolfe v. Frost, 4 Sandf. c. 72.
94 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
tion, that the parties intended to impose a permanent restraint
on the use or mode of occupation of their respective estates."
This might be done by a condition or reservation incorpora-
ted into a grant, or appended to it as a covenant real, or so
inserted as to carry notice to all persons that the use of the
premises is, to a certain extent, qualified or limited, and the
intent to create a servitude or privilege, in its nature perpet-
ual, manifested. But where it rests in parol, or in form of a
covenant in gross, or by a separate independent agreement,
it must contain a stipulation in express terms that the right
or privilege is to be a permanent restriction on the land, or
such as leads to the conclusion that that is the intention of
the parties. And the case turned upon the nature of the
agreement in this respect as to the two feet in question, Avhich
in terms related to the first erection of the houses only, and
not to subsequent changes.
The above citations serve to show the nature and limita-
tions of easements and servitudes growing out of agreements
over which equity exercises cognizance, and it will not be
necessary to refer so fully to other cases of a like character
in which a similar doctrine has been maintained.
The case of Tallmadge v. E. River Bank,^ was in many
respects like that of Hubbell v. Warren, except that the
parol agreement under which the parties had acted, was
made in reference to a permanent arrangement between sev-
eral estates as to their occupation. These were upon a street
in New York, which was originally laid out upon a plan, and
a space eight feet in width, on each side of the street and
outside of the lines thereof, was platted and laid down upon
the plan which the owner of the land declared, to the first
purcliascrs of the lot, was to be kept open in front of the
houses to be erected thereon. He built several houses him-
self in conformity to this line, occupying this strip by door-
steps and enclosed areas, and when he sold them he stated
to the purchasers that this space was always to remain so,
1 Tallmadge v. E. River Bank, 26 N. Y. 105.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 95
but he put no restrictions in his deeds, and bounded the lots
by the line of the street. One of the purchasers of lots to
whom this restriction was stated, built his house accordingly.
But a purchaser under him was beginning to build upon this
eight feet in front of his house, when the other proprietors in
the street sued out a bill to enjoin him. One ground upon
which they did it, was that this space had been dedicated to
the public as a street. The court held that there had been
no such dedication, but that the representations and circum-
stances under which the sales were made, bound the original
vendor in equity to have the terms kept and fulfilled upon
which the first purchasers acquired and paid for their estates,
and attached to his other lots, and to all who purchased with
knowledge. And the injunction was granted.
As an example of the extent to which courts are disposed
to carry the doctrine of constructive negativ^e easements,
even in favor of third parties, reference is made to the cases
of Greene v. Creighton and Gibert v. Peteler. In the first of
these, several owners of a lot of land in the city of P, propos-
ing to open a street across it, and to dedicate it to the city,
joined in a deed poll to the city of P, #»f the land of the street
for the purposes of a highway, and in it recited that it was
" understood, covenanted, and agreed by the grantors for
themselves, their heirs and assigns," that no building should
be built within so many feet of the line of the street. Al-
though the deed was to the city, the court held that in view
of the common benefit for which the deed proposes to impose
a restriction upon the heirs and assigns of the covenantors, it
was " to be construed as a grant in fee to each of a negative
easement in the lands of all, and, as such, capable of being-
enforced by the appropriate remedies at law and in equity." ^
In the case of Gibert v. Peteler ,2 one G, who, owning prem-
ises, the view from which he wished to be kept open, bought
^ Greene v. Creighton, 7 R. I. 1.
2 Gibert v. Peteler, 38 Barb. 488, 514 ; Brouwer v. Jones, 2.3 Barb. 153; Sey-
mour V. M'Donakl, 4 Sandf. c. 502; Clash v. Martin, 49 Penn. 289.
96 THE LAW OF EASEMENTS AND SERVITUDES. [ [Cn. I.
an estate, the building upon which would obstruct this view,
but had the deed made to a third person without any trust
being declared in his favor. At G's request, this latter estate
was then sold to F, who covenanted with his grantor, his
heirs and assigns, that they should not erect anything upon
the premises to obstruct the view from G's house. There
were several successive conveyances of this parcel in which
the covenant of restriction was noticed, and G made a quali-
fied release to one of the owners of the restriction as to a part
of the premises. But several of the later conveyances made
no reference to this restriction. The court held that there
was a negative easement or servitude upon this estate in
favor of G, which could be .enforced in equity if not at law.
*' The action of courts of equity in such cases is not limited
by rules of legal liability, and does not depend upon legal
privity of estate, or require that the party invoking the aid
of the court should come in under and after the covenant.
A covenant or agreement, restricting the use of any lands or
tenements in favor of or on account of other lands, creates
an easement, and makes one tenement, in the language of the
civil law, servient, and flie other dominant, and this without
regard to any privity or connection of title or estate in the
two parcels or their owners. All that is necessary is a clear
manifestation of the intention of the person who is the
source of title to subject one parcel of land to a restriction
in its use, for the benefit of another, lohether that other be-
long- at the time to himself or to third persons, and sufficient
lang-uag-e to make that restriction perpetuaL^^
The case of Badger v. Boardman is not in conflict with the
above doctrines, because, though there was originally a re-
striction upon the estate of the defendant, it was not created
in favor of that belonging to the plaintiff.^
A reference to the cases cited below, will show that the
^ Badger v. Bo.ardmnn, 16 Gray; Parker v. Nightingale, 6 Allen, 348. See
also Wolfe v. Frost, 4 Sandf. c. 72, for the grounds on which an alleged similar
parol agreement was not held to create an easement.
Sect. 3.] ACQUIRING EASEMENTS BY GRANT. 97 "
English Courts of Chancery hold, substantially, the same
doctrines as those above adopted by the American courts.^
Without stopping to notice these cases in detail, it may be
proper to refer to the fact that in Tulk v. Moxhay, the court,
in enforcing the servitude, do not regard the covenant which
originally created it as running with the land ; " that the
question does not depend upon whether the covenant runs
with the land is evident from this, that if there was a mere
agreement and no covenant, this court would enforce it
against a party purchasing with notice of it, for if an equity
is attached to the property by the owner, no one purchasing,
with notice of that equity, can stand in a different situation
from the party from whom he purchased." Another fact
which appeared upon the hearing was, that the character of
the occupants and condition of the tenements for whose
convenience the square in question had been left open by
contract, as well as that of the square itself, had essentially
changed, without affecting the easement in their favor. And
in the case of Piggott v. Stratton it was held, that after an
easement had once attached in favor of one estate over
another by a covenant made by the original purchaser of the
servient estate with his vendor, it was not competent for the
covenantor to affect this right, while the dominant estate
was in another's hands, by releasing the owner of the servi-
ent estate from the obligation of the covenant.
But in order to give to a conveyance the incidents of an
equitable servitude or easement in the parcel granted, there
must be an intention to do this shown on the part of those
who make the conveyance. Thus, where one conveyed a
parcel of land by metes and bounds, and referred to a plan
as having the lot laid down upon it, it was held not to convey
any rights in other lots on the same plan which did not
1 Tulk V. Moxhay, 1 H. & Twclls, 105 ; s. c, II Beavan, 571 ; 2 Phillips, 774;
Piggott V. Stratton, 1 De G. F. & Jones, 33 ; Coles v. Sims, 5 Do G. M'N. & Gord.
1 ; s c, 1 KayT 56 ; Rankin v. Huskisson, 4 Sim. Ch. 13; Whitman v. Gibson,
9 Sim. 196; Mann v. Stephens, 15 Sim, 377.
7
98 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
adjoin the granted premises, although on the plan these were
called " ornamental grounds " and " play-ground." ^
SECTION IV.
OF ACQUIRING. EASEMENTS BY USER AND PRESCRIPTION.
1. Prescription defined.
2. Presumption of lost deed, when applied.
3. Time of presumption derived from rules of limitation.
4. Distinction between ancient and modern prescriptions. '*
5. Slodern prescription regarded as evidence.
6. Strickler v. Todd. Conclusiveness of modern prescriptions.
7. How far modern prescriptions are conclusive.
8. How far modern and ancient prescriptions are, in effect, the same.
9. Extent and mode of user define the right to the Easement.
10. User not referred to, to define an express grant.
11. Of what a prescription maj' be gained.
12. Prescription applies only where there may be a grantee and a thing granted.
13. Distinction between prescriptions and customs.
14. Prescription can only be claimed of what some one might grant.
15. Lockwood v. Wood. Custom defined and explained.
16. Customs must be reasonable in their subjects.
17. Custom limited to local inhabitants.
18. Customs must be reasonable in their mode of use.
19. Prescription more extensive than custom.
20. Inhabitants, etc. must prescribe in a que estate.
[*64] *21. Nothing claimed in a que estate but appurtenances to lands.
22. How far prescription and custom may coexist.
23. Prescription to be good must be reasonable.
24. What length of time of user creates a prescription.
25. No use for less than the period of prescription avails.
26. What the user must be, to acquire a prescription.
27. What is an adverse user.
28. May be adverse, though begun in agreement.
29. Mere use does not gain prescription, if no injury to a right.
80. User, that invades owner's right, may work a prescription.
31. User, unexplained, implies that it is adverse.
32. South Carolina doctrine of user of ways over wild lands.
33. Maine doctrine of flowing of lands giving prescriptive rights.
34. 35. Same subject in Massachusetts and New York. ' '
36. Of gaining an adverse negative easement.
37. Easements gained by user exceeding a right as to part.
38. User never i)resumcd adverse where there is a grant.
1 Light V. Goddard, 11 Allen, 5.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 99
39. No prescription, unless in case of actual user.
40. Barnes v. Haj'nes. What is an adverse user.
41. User by one of two common owners not adverse.
42. Whealley v. Clirisman. Adverse enjoyment of the tiling granted.
43. User must be exclusive, to gain a prescription.
44. User may be exclusive, though used by others, and when.
45. User may gain prescription, though interrupted by strangers.
46. Different prescriptions may coexist.
47. Curtis v. Angier. User by one does not prevent prescription by another.
48. User must be continuous to gain prescription.
49. Time from which continuous user is reckoned.
60. Wliat constitutes a continuous, uninterrupted user.
61. User by permission, or secretly, not continuous.
62. Of change of user of water as affecting its continuity.
53. Change of localitj' of dam, or user of water, when unimportant.
64. Effect of change of extent of user, by defects in a mill-dam.
55. Temporary suspension of user does not affect its continuity.
66. Nature of user may not be changed.
67. How far change in a way affects the continuity of user.
58. How far acquiring prescription affected by death of a party.
59. Successive owners in privity maintain a continuity.
60. Interruption of enjoyment defeats the requisite continuity.
61. Union of possession of the two estates defeats the continuity.
62. Occupation and user by successive tenants for years, not continuous.
63. Tenant at will of dominant estate cannot gain an Easement.
64. Prescription suspended as to minor heirs.
65. No prescription gained while there is a reversioner.
66. User must be by acquiescence of the owner, to gain prescription.
67. What amounts to the requisite acquiescence.
68. User must not be opposed or contentious.
69. User must be while owner of servient estate could oppose it.
70. Reversioners and remainder-rhen not affected by user.
71. How far an easement gained by tenant for life accrues to reversioner.
72. No easement acquired while estate is in possession of tenant.
73. Effect of an heir being a minor, during an adverse user.
*73a. Effect of an intervening disability on prescriptions. [*65]
74. Prescription must be of what could be granted.
75. Ways, though used, if not adverse, do not pass as appurtenant.
76. Watkins v. Peck. Easement of aqueducts, &:c.
77. Tyler v. Wilkinson and Lamb v. Crossland. Conclusiveness of prescriptions.
1. The doctrine of user and enjoyment as evidence of the
grant of an easement, under which a title may be claimed,
involves an inquiry into the rules applicable to what the law
denominates Prescription.
Anciently, as already stated, prescription implied a claim
to an incorporeal hereditament arising from the same hav-
, 100 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
ing been enjoyed for so long a time that there was no ex-
isting evidence as to when such user and enjoyment com-
menced. Its origin must have been, in the quaint language
of the law, at a time " whereof the memory of man runneth
not to the contrary." At one time this was fixed at the
commencement of the reign of Richard I. But it was al-
ways sufficient, if no evidence existed of a time at which it
had not begun, and subsequent to which it must have had
its origin, though it was open to be rebutted by proof that
the use did begin within the period of memory. ^
And prescription, when properly used, is still applied to
incorporeal hereditaments, and not to lands.^
The common law, in this respect, corresponds with the dis-
tinction made by the civil law between Usucapion and Pre-
scription ; the former being a mode of acquiring title to a
thing itself by the effect given to a long possession or enjoy-
ment of it, the latter being applied to the manner of acquir-
ing or losing the various kinds of right by the effect of the
lapse of time. And the reader should bear in mind that it
is in this limited sense of the term, that prescription is to be
regarded in treating of the present subject.^
Under the Roman law, where a bond fide possessor had ac-
quired a res mancipi, something corporeal in its nature, by
tradition or any other inappropriate form of transfer, and had
possessed the same for two years in the case of immovables,
or for one year in the case of movables, what was called Qui-
ritarian ownership was the result. The office which Usuca-
pion performed for res mancipi was, in a measure, performed
for res nee mancipi, or things incorporeal in their nature, by
prescription, though the period required was a longer one,
and the ownership took the name of Bonitarian.^
1 1 Lomax,Di<!:. G14, 615; Litt., M70; Co. Litt. 115 a ; 2 Tuck. Blackst. 31 ;
Mayor of Hull v. Homer, Cowp. 109.
2 Ferris v. Brown, 3 Barb. 105; Caldwell v. Copeland, 37 Pcnn. 431 ; Ayliff,
326; Outer, Bracton, c. 15.
^ Merlin, llepirtoirc de Juri.sj)rudencc, tit. Prescription, sect. 1, § 1 ; D. 8, 1,
14.
* 11 Law Mag. & Kcv. 109.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 101
*2. To obviate the uncertainty of title arising from [*QQ^
a user and enjoyment, however long in time, the
courts, in accordance with the idea of quieting titles to lands
after a certain prescribed period of enjoyment, which is reg-
ulated by local statutes of limitation interposing a bar to
claims of priority of right after a certain limit of time, adopt-
ed tlie notion of presuming an ancient grant by deed which
had been lost.
The presumption of a grant from long-continued enjoy-
ment arises only where the person, against whom the right is
claimed, might have interrupted or prevented the exercise of
the subject of the supposed grant. ^
In the words of Mr. Tudor : " Amidst these difficulties, it
became usual, for the purpose of supporting a right which
had been long enjoyed, but which could be shown to have
originated within time of legal memory, or to have at one
time been extinguished by unity of possession, to resort to
the clumsy fiction of a lost grant, which was pleaded to have
been made by some person seized in fee of the servient, to
another seized in fee of the dominant tenement, and, upon
enjoyment being proved for twenty years, the judges held, or
rather directed juries to believe, that a presumption arose
that there had been a grant made of the easement which had
been subsequently lost."'-^
The fiction of presuming a grant from twenty years pos-
session or use, was invented by the English courts in the
eighteenth century, to avoid the absurdities of their rule of
legal memory, and was derived by analogy from the limita-
tion prescribed by the Statute of 21 Jac. 1, c. 21, for actions
of ejectment, not upon a belief that a grant in any particu-
lar case has been made, but on general presumptions.^
The doctrine was originally adopted for the purpose of
quieting titles, and giving effect to long-continued posses-
1 Webb V. Bird, 13 C. B. N. Y. 843 ; Chasemore v. Richards, 7 H, L. Cases,
349.
2 Tud. Lead. Cas., 114.
8 Edsou V. Munseli, 10 Allen, 568.
102 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
sions. Until a comparatively recent period, no deed could
be pleaded without a profert. But when grants came to be,
presumed from long-continued possession and enjoyment, it
was held that the profert might be dispensed with, on sug-
gestion that the deed was lost by time or accident.^
3. This period, unless other provision was made in the
local statutes of the State in which the questions have arisen,
has been assumed to be the term of twenty years. So that
now an enjoyment of an easement for the term of twenty
years raises a legal presumption that the right was originally
acquired by title. And this, though the jury should not find,
as a fact, that any deed had ever been made. And although
the user began in fact as an act of trespass.^
4. The result has therefore been, that the modern doc-
trine of prescription requires merely a user and enjoyment
of at least twenty years, instead of the former requirement
of immemorial enjoyment. But there seems to be one dis-
tinction between ancient and modern prescriptions which has
not always been regarded by courts or writers, and that is,
while under the ancient doctrine of prescription such an en-
joyment was regarded as conclusive evidence of title,
[*67] *prescription, as used at this day, only raises a legal
presumption of such title, which may be rebutted by
other evidence.^
And speaking of length of enjoyment as the basis of a pre-
sumed grant, the court, in Cooper v. Smith, say : " Length
of time cannot be said to be an absolute bar like the statute
of limitations, but is only a presumptive bar to be left to a
jury. This presumption of grant from long usage, is for the
1 Valentine v. Piper, 22 Pick. 93 ; Melvin v. Lock, &c., 17 Pick. 255; Emans
V. Tiirnhull, 2 .lolins. 313.
2 Sibley v. Ellis, 11 Gray, 417.
3 1 Report Eng. Conim. 51 ; 1 Greenl. Ev., § 17 ; Sargent v. Ballard, 9 Pick.
251, 255; Caniphcll v. Wilson, 3 East, 294, overruling in part Holcroft ;■. Heel,
1 Bos. & P. 400; Livett v. Wilson, 3 Bing. 115; Tyler v. Wilkinson, 4 Mason,
397-402, and the comments thereon in Lamb v. Crossland, 4 Rich. 5J6, 543 ;
Best, Presumpt. 103; Cooper v. Smith, 9 Serg, & R. 26; Corning v. Gould, 16
Wend. 531.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 103
sake of peace and furtherance of justice. It cannot be sup-
posed, where there has been a long exercise and possession,
of such right, that any person would suffer his neighbor to
obstruct the light of his windows or render his house uncom-
fortable, or to use a way for so long a time, with carts or car-
riages, unless there had been some agreement between the
parties to that effect. But this principle must always be
taken with this qualification, that the possession, from which
a party would presume a grant or easement, must be with
tlie knowledge of the person seized of the inheritance." ^
And the language of the court, in Ricard v. Williams, is :
" Presumptions of this nature are adopted from the general
infirmity of human nature, the difficulty of preserving muni-
ments of title, and the public policy of supporting long and
uninterrupted possessions. They are founded upon the con-
sideration, that the facts are such as could not, according to
the ordinary course of human affairs, occur, unless there was
a transmutation of title to, or an admission of, an existing
adverse title in the party in possession."
*5. But, in the language of Lord Mansfield, in [*68]
Mayor of Hull v. Horner : " There is a great differ-
ence between length of time which operates as a bar to a
claim, and that which is only used by way of evidence. A
jury is concluded by length of time that operates as a bar.
So in the case of a prescription, if it be time out of mind, a
jury is bound to conclude the right from that prescription, if
there could be a legal commencement of the right
But length of time, used merely by way of evidence, may be
left to the consideration of the jury, to be credited or not,
and to draw their inference one way or the other, according
to circumstances." 2 The language of Eyre, C. J., in Hol-
1 Cooper V. Smith, 9 Serg. & R. 26. See also Yard v. Ford, 2 Wms. Saund.,
5 ed. 175, note; Tinkham v. Arnold, 3 Me. 120; Ricard v. Williams, 7 Wheat.
59, 109; post, pi. 29, 66; Cooper v. Barber, 3 Taunt. 99; Merlin, Repertoire de
Jurisprudence, tit. Prescription, sect. 1, § 1 ; Valentine v. Piper, 22 Pick. 95 ; Ed-
son V. Munsell, 10 Allen, 568; Stevens r. Taft, 11 Gray, 33.
2 Cowp. 108, 109 ; Parker v. Foote, 19 Wend. 309, 315; Livctt v. Wilson, 3
Bing. 115; Darwin v. Upton, 2 Saund. 175 c; Campbell v. Wilson, 3 East, 294.
104 THE LAW OF EASEMENTS AND SERVITUDES. [On. I.
croft V. Heel, as to twenty years being an actual bar, is
tli^refore too strong.^
Of the many American cases that might be selected sus-
taining the above view, that of Wilson v. Wilson may be
cited, where the court of North Carolina say : " The pre-
sumption of a grant arising from the use of an easement for
more than twenty years, and acquiescence by the owners of
the land, might be repelled by other evidence, and if the pre-
sumption was not repelled, they (the jury) ouglit to find for
the defendants," who claimed the easement. And they cite,
with approbation, 2 Stark. Ev. 669, upon the same subject.^
6. An instance of an adoption in full of the ancient doc-
trine of prescription in speaking of the modern notion of pre-
scriptive rights, is the language of Duncan, J., in Strickler
V. Todd : " I begin to think that the country has been long
enough settled to allow of the time necessary to prove a pre-
scription It is well settled, that if there has
[*69] been an * uninterrupted exclusive enjoyment above
twenty-one years (the period of limitation in Pennsyl-
vania) of water in any particular way, this affords a conclu-
sive prescription of right in the party so enjoying it, and that
is equal to aright by prescription." ^ And Parsons, J., in
Rust V. Low, says : " The country has been settled long
enough to allow of the time necessary to prove a pi*escrip-
tion." 4
7. But as to the effect to be given to the use of a way
across another's land for twenty years, it was held by the
English courts to be the rule, not that a jury must, but that
they 7nai/ presume a grant, and that they are at liberty to
infer a grant and to treat the user as an adverse possession
or enjoyment, unless the owner of the servient tenement
1 Holcroft V. Heel, 1 Bos. & P. 403. See Pritchard v. Atkinson, 4 N. II. 9 ;
post, pi. 8.
2 Wilson V. Wilson, 4 Dcv. 154. See Ingraham v. Hough, 1 Jones, No. C. 39.
3 Strickler v. Todd, 10 Serg. & K. G3, 69.
* Rust V. Low, 6 Mass. 90,
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIl'TION. 105
shows it was done by leave or favor, or otherwise than under
a claim or assertion of" right. ^
Thus, though a way or a watercourse may have been en-
joyed for the term of twenty years, or more, it may rebut
the presumption of any deed or grant thereof to show that
such enjoyment began during a long term for years, or dur-
ing an estate for life, where the owner of the inheritance,
being a reversioner or a remainder-man, would not be bound
by such enjoyment which he could not have prevented, it be-
ing an essential element of an enjoyment which shall operate
as a prescription, that it was had with the acquiescence of
him who is seized of the inheritance, and not by his express
permission.^
And the distinction there is between a length of time which
operates as a bar to a claim, and that which is only used
by w^ay of evidence, consists in the jury, in the one
* case, being concluded by the length of time ; in the [*70]
other, being left to draw their inference one way or
the other according to circumstances. And it is said : " So
in the case of prescription, if it be time out of mind, a jury
is bound to conclude the right from that prescription, if
there could be a legal commencement of the i-ight."^ Stat-
utes of limitation do not extend to incorporeal hereditaments,
with few exceptions, but prescription has been made to con-
form to the statute by analogy. And by statute in Massa-
chusetts, easements cannot be gained by adverse user and
enjoyment for a less period than twenty years.^
8. Any seeming discrepancy between the ancient doctrine
of prescription and the modern notion of a presumed grant
1 Campbell r. Wilson, 2 East, 294; Livett v. Wilson, 2 Bing. 115; Yard v.
Ford, 2 Wms. Saund. 175 a.
- Wood V. Veal, 5 Barnew. & Aid. 454 ; Doe v. Reed, Ibid. 232 ; per Hol-
royd, J., Daniel v. North, 11 East, 372; Yard v. Eord, 2 Wms. Saund. 175 d,
note; Coalter v. Hunter, 4 Rand. 58 ; Nichols v. Aylor, 7 Leigh, 546, 565 ; Bid-
die V. Ash, 2 Ashm. 211, 221 ; Smith v. Miller, 11 Gray, 148.
3 Mayor of Hull v. Horner, Cowp. 102 ; Oswald v. Legh, 1 T. R. 270.
* Tracy r. Atherton, 36 Verm. 510, 514; Edson v. Munsell, 10 Allen, 566;
Gen. Stat. C. 91, § 22.
106 THE LAW OF EASEMENTS AND SERVITUDES. [Cif. I.
where the deed has been lost, as to the conclusiveness of the
evidence thereby resulting in favor of a title to incorporeal
hereditaments, may be reconciled, if we bear in mind that,
to constitute such a user or enjoyment as raises such pre-
sumption of a grant, requires, in addition to the requisite
length of time, that it should have certain qualities and char-
acteristics, such as being adverse, continuous, uninterrupted,
and by the acquiescence of the owner of the inheritance out
of or over which the easement is claimed. And if we as-
sume that these have been' established by sufficient proof, it
would, doubtless, in such a case, and after such a user and
enjoyment, be held to create as conclusive a presumption in
favor of him who makes the claim, as if it had been estab-
lished by prescription in its ancient sense.
It may, therefore, be stated as a general proposition of law,
that if there has been an uninterrupted user and enjoyment
of an easement, a stream of water for instance, in a particu-
ular way, for more than twenty-one, or twenty, or such other
period of years as answers to the local period of limitation,
it affords conclusive presumption of right in the party who
shall have enjoyed it, provided such use and enjoyment be
not by authority of law, or by or under some agreement be-
tween the owner of the inheritance and the party who shall
have enjoyed it.^ And this would extend to the case of a
dam, one end of which rests upon the land of another, and
has been maintained there the requisite period of time, or
the inserting and maintaining a flume or bulk-head in an-
other's dam and thereby drawing water from his pond.^
[*71] *"In a plain case, where there is no evidence to
repel the presumption arising from twenty years un-
1 Strickler v. Todd, 10 Serp^. & R. G3 ; Olney v. Fenner, 2 R. I. 211 ; Pills-
bury V. Moore, 44 Me. 154; Belknap v. Trimble, 3 Paige, 577; Townshend v.
M'Donald, 2 Kern. 381 ; Hazard v. Robinson, 3 Mason, 272 ; Wilson v. Wilson,
4 Dev. 154; Gayctty v. Bcthune, 14 Mass. 51, 53; Mayor of Hull w. Horner,
Cowp. 102; Parker v. Foote, 19 Wend. 309, 315; Corning v. Gould, 16 Wend.
531 ; Hall v. M'Leod, 2 Mete. Ky. 98; Wallace v. Flctcbcr, 10 Fost. 434 ; Win-
nipiseogce Co. v. Young, 40 N. H. 420. Sec Tracy i'. Athcrton, 36 Verm. 512.
* Burnliam v. Kempton, 44 N. H. 88.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 107
interrupted adverse user of an incorporeal right, the judge
may very properly instruct the jury that it is their duty to
find in favor of the party who has had the enjoyment. But
still it is a question for the jury." ^
And this, it is believed, is in accordance with the language
of Wilde, J., in Coolidge v. Learned : " It has long been
settled, tliat the undisturbed enjoyment of an incorporeal
right affecting the lands of another for twenty years, the pos-
session being adverse and unrebutted, imposes on the jury
the duty to presume a grant, and in all cases juries are so
instructed by the court. Not, however, because eitlier the
court or jury believe the presumed grant to have been actu-
ally made, but because public policy and convenience re-
quire that long-continued possession should not be dis-
turbed." 2
So the English judges, in Knight v. Halsey, speak of the
modern theory that the length of enjoyment is to be taken
as evidence of a lost deed of grant of what is thus enjoyed,
and call it " a novel invention of the judges for the further-
ance of justice and the sake of peace, where there has been
a long exercise of an adverse right." ^
The language of the court of New York, when comment-
ing upon rights gained by enjoyment, may probably be taken
as a brief and accurate statement of the law as now under-
stood upon this point. " The modern doctrine of presuming
a right by grant, or otherwise, to easements and incorporeal
hereditaments, after twenty years of uninterrupted ad-
verse enjoyment, exerts a much wider *influence in [*72]
quieting possession than the old doctrine of title by
prescription which depended upon immemorial usage. The
period of twenty years has been adopted by the courts in
analogy to the statute limiting an entry into lands ; but as
the statute does not apply to incorporeal rights, the adverse
1 Parker v. Foote, 19 Wend. 309.
2 Coolidge V. Learned, 8 Pick. 504.
8 Knight V. Halsey, 3 Bos. & P. 172, 206 ; 3 Dane, Abr. 55.
108 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
use is not regarded a legal bar, but only a groiind for pre-
suming a right by grant or in some other form." ^
The question in all these cases is, whether the presump-
tion of a right to the enjoyment of the easement is one of
law or of fact. Poland, C. J., in Tracy v. Atherton,^ exam-
ines the point with much learning and discrimination. • He
cites the language of Aldis, J., in Townsend v. Downer,^
who seems to regard it as depending upon the purposes for
which the evidence of long enjoyment is offered. If it is to
raise the presumption of a grant, without regard to the fact
whether such a grant was really made or not, it may, with
the strictest propriety, be said that the law presumes a grant,
and it would be the duty of the court to direct a verdict.
But where long possession with other circumstances are ad-
mitted as evidence that a grant was in fact made, the law
permits the jury to weigh the evidence, and upon such pre-
sumptive — not positive — proof to find the fact.
"Where the subject-matter," adds Aldis, J., "is not in-
cluded in the statute, such as easements" . . , . " the pos-
session is not prima facie adverse. In such cases, courts
presume grants in analogy to the statute of limitations.
Sometimes these presumptions are held to be conclusive, at
others, open to be rebutted. The line between conclusive
and disputable presumptions is not well defined." The con-
clusion of Poland, C. J., is, that " rights to easements ac-
quired by long possession ought to stand on the same ground
as rights by possession in lands. The real principle under-
lying the right is the same, precisely, on which the statute of
limitations stands." And while any presumption arising
from long enjoyment may be rebutted in various ways, he
concludes, " that, in substance, the presumption arising from
such long-continued possession, unrebutted, is a presump-
tion of law, and that it is conclusive evidence, or sufficient
1 Parker i^. Footc, 19 Wend. 309; Curtis v. Keeslcr, 14 Barb. 511. See also
Cooper V. Smith, 9 Serf,'. & R. 2f>; Hall v. M'Leod, 2 Mete. Ivy. 98.
2 Traey v. Atlierton, 3G Verm. 503.
3 32 Verra. 183.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 109
evidence to warrant the court in holding that it confers a
right on the possessor to the extent of his use." But the
question, after all, seems to be one rather of form than sub-
stance, and mainly affecting the manner of instructing a
jury, upon the trial of an issue depending upon a long en-
joyment of the thing claimed as an easement.
And with the limitations and explanations above stated,
this rule of law may now be consider(|(i as well settled, al-
though Mr. Dane asks : " Whence comes this modern doc-
trine of presuming ? Not from any statutes, nor from the
books of the common law," and declares that it " is of mod-
ern date." ^ But it must now be considered as established
law.
9. It may be further remarked, that, where a 'vt'ay is
claimed by prescription, the character and extent of it is
fixed and determined by the user under which it is gained.
" The extent of a usage of a way is evidence only of a right
commensurable with the use." And it was accordingly
held, that, where the proof by usage was of a carriage-way,
it did not necessarily establish a right of way for cattle,
though it might be competent evidence to go to a jury, in
connection with other evidence, in establishing the extent of
the right claimed. ^
Where, therefore, one acquired a right of way, by user, to
a wood-lot, to take off the wood, it was held that he could
not use it for other purposes after the wood had been taken
off.3
So, if one acquire a right to corrupt the water of a stream
by one use, or to a limited extent, it will not avail him if he
corrupts it in a different manner or to a greater extent.*
1 3 Dane, Abr. 55. It is stated by Bell, J., in Wallace v. Fletcher, 10 Foster,
446, that the Court of Chancery was the first to adopt this doctrine of presuming
the existence and loss of a deed in 1707 ; but that it was not till 1761 that the
courts of common law adopted it.
2 Balhird v. Dyson, 1 Taunt. 279; Allan v. Gomme, 11 Adolph. & E. 759;
Giiter, Bracton, 99.
3 Atwater v. Bodfish, 11 Gray, 152.
^ * Holnian v. Boiling Spring Co., 1 M'Carter, 346.
110 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
Where a water-way had been used to bring goods to a
tavern-yard for the use of the tavern, it did not authorize
the use of the way for otlier occupants of the land and other
purposes than the occupancy of the tavern.^
10. But if a way is created by express grant, user is not
evidence to restrict the usual import of the terms
[*73] of the *grant. But if the grant is lost, usage alone
indicates the extent of the way. All prescriptions are
stricti juris ; a way for carriages includes a horse-way, but
not a drift-way for cattle. The use of a way for pigs does
not imply a right of way to drive oxen.^
And where the way claimed was a general right by pre-
scription, it was necessary to show a user of it for all pur-
poses, time out of mind. But if it is shown that the defend-
ant, and those under whom he claims, have used the way
whenever they have required it, it is such evidence of a
general right to use it for all purposes, that a jury might
infer from it such right.^
11. If now we consider in what cases prescriptions may
be gained, and by what means, it will be found, in the first
place, that prescriptions can only be for things which are
the subjects of grant. And though sometimes the term is
loosely applied to titles to corporeal hereditaments, when
used with technical accuracy it is predicated of incorporeal
hereditaments alone.*
12. To constitute a title, therefore, by prescription, there
1 Bower v. Hill, 2 Bing. N. C. 339.
2 Ballard v. Dyson, 1 Taunt. 279, 288. See Co. Entr. 5, 6, for form of plead-
ing a prescriptive right of way.
2 Cowling V. Iligginson, 4 Mccs. & W. 245. See Allan v, Gomme, 11 Adolph.
& E. 759 ; Dare v. Hcathcote, 36 Eng. L. & Eq. 564. Smith v. Miller, 11 Gray,
148.
* 1 Lomax, Dig. 614 ; Potter v. North, 1 Ventr. 383, 387 ; Strickler v. Todd, 10
Scrg. & R. 69 ; Carlyon v. Lovering, 1 Hurlst. & N. 784 ; Kochdale Canal Co. v.
lladrliffo, 18 Q. B. 287, 314 ; Davis v. Brigham, 29 Me. 391 ; Cortelyoii v. Van
Brundt, 2 Johns. 357 ; Giiyetty v. Bethunc, 14 Mass. 53 ; Thomas v. Marshfield,
13 Pick. 240; M'Crcady v. Thomson, Dudley, 131 ; Golding v. Williams, Dud-
ley, 92 ; Pearsall v. Post, 20 Wend. Ill, 129; Ferris i'. Brown, 3 Barb. 105 ; 2
Sharsw. Blackst. 264, note. Ilill v. Lord, 48 Maine, 96 ; Luttrcl's case, 4 Co. 87.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. Ill
must be a thing claimed Avhicli may be granted, and a per-
son to whom a grant may be made, and who may be a party
to such grant. And in this consists one great distinction
between a proper prescription and a custom, the latter being
applicable to rights by way of easement which the public
or the inhabitants of a particular locality may acquire
by *long enjoyment, without having been incorporated [*74]
or capable of collectively becoming grantees in any
deed of conveyance.^
13. Prescriptions and customs both relate to incorporeal
hereditaments, and the main difference between them is, that
prescriptions are always personal, and belong to some person,
using the term in its broad sense as including corporations,
while customs are always local, and predicated of something
to be enjoyed by individuals living in certain districts. And
accordingly it is said : " Another difference was taken and
agreed between a prescription, which always is alleged in the
person, and a custom, which always ought to be alleged in
the land ; for every prescription ought to have, by common
intendment, a lawful beginning ; but otherwise it is of a
custom, for that ought to be reasonable, but need not be in-
tended to have a lawful beginning." ^ By this it would
seem that " lawful beginning " must imply a beginning by
means of an original grant, there being in the case of a pre-
scription some one capable of taking the grant, whereas in
case of custom there are no such grantees capable of taking,
from the very fact that it belongs to such and to such only
as, for the time being, belong to a particular locality, not as
successors of persons gone before, but as dwellers there, ir-
respective of the circumstances under which they became
such. Another thing may be repeated for the purpose of ex-
planation. Prescriptions are often more extensive in their
operation upon the rights of the owners of estates out of
1 Lockwood V. Wood, 6 Q. B. 50, 64; Smith v. Gatewood, Cro. Jac. 152;
Grimstead v. Marlowe, 4 T. R. 717 ; Curtis v. Kccslcr, 14 Barb. 511 ; Perley v.
Langley, 7 N. H. 233. Kaposi, chap. 3, sect. 10.
2 Lockwood V. Wood, 6 Q. B. 50, 66 ; Litt., ^ 170 ; Co. Litt. 113 b.
112 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
which they are enjoyed, than customs, since in the case of
prescriptions it is supposed the parties in interest settled the
terms and extent of the grant made by the one to tlie other,
whereas in the case of customs no such contract or
[*75] agreement could have been *made, and the law sup-
plies the only limit, and requires that it should be
reasonable. Thus the difference which has been spoken of
between a prescription for a profit, and a claim of profit a
prendre under a custom. The court hold such a custom
unreasonable, for if one of the dwellers in a particular vill
or neighborhood may carry off turf, soil, or other parts of
the land of another, others may do the same without limit
or stint, and the effect may be that it may all be carried
away or destroyed.^
" That which is a matter of interest, as the taking a profit
from the soil, must from its existence have some person in
whom it is, and a. flux body, which has no entirety or perma-
nence, cannot take that interest which, by the supposition,
is immemorial and permanent, because, from its nature, it
cannot prescribe for anything." ^
14. And it may be added, though already implied if not
expressly stated, that, in order to establish a prescriptive
right, it must be claimed under and through some one who
had a right to grant or create the easement claimed. Thus,
where a company were authorized by act of Parliament to
construct and operate a canal for public use, and the de-
fendant erected a steam-engine upon its banks, and drew
water therefrom for operating the same, and to an action
for doing this he pleaded a prescriptive right, by long enjoy-
ment, the court held that such right could not be main-
1 Jones V. Eobin, 10 Q. B. 620 ; Rogers v. Brenton, Ibid. 26, 60 ; Gateward's
case, 6 Rep. b9 ; Day v. Savadge, Hob. 85 ; Co. Litt. 110, b, 113 ; Bell v. War-
dcU, Willes, 202; Cortelyou v. Van Brundt, 2 Johns. 357 ; Donnell v. Clark, 19
Me. 174; 2 Blackst. Comm. 263, 264; ante, sect. 1, ^\. 6. Nudd v. Hobbs, 17
N. H. 527.
2 Rogers v. Brenton, 10 Q. B. 26, 60 ; Day v. Savadge, Hob. 86 ; Gateward's
case, 6 Rep. 59.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 113
tained, for it implied an original grant thereof by the com-
pany to him, and they had no right to make any such grant,
or to use the water for any purpose excejit for that of a
canal. 1
15. Thus, in the case of Lockwood v. Wood, the
court *say : " A custom which has existed from time im- [*76]
memorial, without interruption, within a certain place,
and which is certain and reasonable in itself, obtains the
force of a law, and is, in effect, the common law within that
place to which it extends, though contrary to the general law
of the realm." " A custom that every inhabitant of such a
town shall have a way over such land, either to church or
market," is said to be good, because " they are an easement,
and no profit." And it was held, in the same case, that
" the inhabitants of E.," not being incorporated, could not
prescribe for an easement in alieno solo, nor claim it by a
modern grant. The court, by way of illustration, cite the
case of a custom for all fishermen within a certain precinct
to dry their nets upon the land of another, as being a good
one, though a grant of such an easement to fishermen with-
in the district, eo nomine, would be held void.^
And, in accordance with the doctrine above stated, the
language of the court, in the case last cited, is : " In case
of a custom, it is unnecessary to look out for its origin. But
in case of a prescription, which founds itself upon the pre-
sumption of a grant that has been lost by process of time, no
prescription can have had a legal origin where no grant
could have been made to support it." ^
As will be seen more' fully hereafter, inhabitants of local-
ities like towns when incorporated may prescribe for ease-
ments in the same way as individuals. But a few cases are
cited below to show the extent to which inhabitants of par-
ticular localities may claim easements by custom, though
not incorporated.
1 Rochdale Canal Co. v. Radcliffe, 18 Q. B. 287.
2 Lockwood V. Wood, 6 Q. B. 50, 65. ^ ^qq post, chap. 3, sect. 10.
8
114 THE LAW OF EASEMENTS AND SERVITUDES. [Cir. I.
16. The test seems to be the reasonableness or unreason-
ableness of the claim, having reference to tlie character and
condition of those who are to enjoy the right claimed, and
to the fact which forms a leading and discriminating distinc-
tion between customs and prescriptions, that while the
[*77] latter *may be released or extinguished by the act of
those who are entitled to the right, the former cannot
be, since the right attaches to whoever, for the time being,
happens to live or dwell in a certain locality ; nor can one or
more of these bind those who may afterwards take their
places, by any act of release which they may see fit to exe-
cute.i
And in respect to what is reasonable, courts do not ex-
tend the rights and privileges which are valid by custom to
the public at large, but restrict them to such as live or dwell
in particular neighborhoods. Thus, in Fitch v. Rawling, it
was held that, though a custom for all the inhabitants of a
parish to enter upon a certain close and play at cricket was
good, it could not be claimed as a good custom for all the
people of England to do this. So it would be bad if the
claim was in favor of all persons happening to be in the
parish at the time of their engaging in such play.^
17. So, though there may be a dedication of many rights
which the public may enjoy, a right like that to use a land-
ing-place upon the shore of navigable waters for depositing
articles such as wood and the like cannot be claimed for the
public, nor for all the inhabitants of a state, by prescription
or custom. The court, in Pearsall v. Post, say : " If sub-
sequent English cases have allowed customary and prescrip-
tive rights to invade and exclusively enjoy the soil of another,
to permanent inhabitants of a certain town, they have never
extended, but uniformly denied it to the inhabitants of the
kingdom generally None of the English cases, that I
1 Grimstead v. Marlowe, 4 T. R. 717; Mellor v. Spatcman, 1 Wins. Saund.
341, note 3.
•^ Filcli V Rawling, 2 II. Blackst. 393.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 115
find, have ever allowed a custom permanently to enjoy the
soil of another to the inhabitants of the whole nation. On
the contrary, they hold that the English law denies such
right." 1 " The law is well settled, that a customary ac-
commodation in the lands of another, to bo good,
*must be confined to the inhabitants of a local dis- [*78]
trict, and cannot be extended to the whole communi-
ty or people of the state." ^ It was accordingly held, that
the public could not gain a right to deposit manure, wood,
and the like, on a public landing-place on the bank of navi-
gable waters ; and that no one could claim such a right ex-
cept in favor of particular farms, so that whoever claims it
by long usage must prescribe in a que estate.^
18. Not only must the custom be reasonable in its subject-
matter, but in the mode of its enjoyment, in order to be a
lawful one. Thus it was held that a custom would not be
sustained by law, for all the inhabitants of a certain town or
county to walk or ride over a certain close at such times of
year as the owner had corn growing or standing thereon, be-
cause it would tend to destroy the profits thereof altogether.'*
But a custom for all the inhabitants of C, to go upon a
certain close for the purpose of horseracing, on a certain day
in the year, was held to be a good one.^
So a custom for the inhabitants of a place, or the owners
of a particular estate, to pass over the soil of another wher-
ever their convenience requires, and where least prejudicial
to the owner, would be an unreasonable one, being too in-
definite and uncertain.^
And where one claimed a right to extend his bay-window
beyond the line of his house and over a part of the street by
1 Pearsall v. Post, 20 Wend. Ill, 128 ; Manning t'. Wasdale, 5 Adolpli. & E.
758.
2 Post V. Pearsall, 22 Wend. 425, 432, per Walicorth, Ch.
3 Ibid. 4.34 ; State v. Wilson, 42 Me. 9 ; Gardiner v. Tisdale, 2 Wise. 153.
* Bell V. Wardwell, Willes, 202.
^ Mounsey v. Isniay, 25 Law Rep. 370.
^ Jones V. Percival, 5 Pick. 485.
116 THE LAW OF EASEMENTS AND SERVITUDE^. [Ch. I.
the custom of the city in whicli he lived, the court held that
if such householder had no freehold in the soil of the street,
the custom was an unreasonable one and not to be sus-
tained.i
So a custom, in order to be good, must be in favor of a
class of persons who are susceptible of being identified and
ascertained ; for where a right by custom was claimed in fa-
vor of the poor and indigent householders of a certain village
to take rotten wood, as well as boughs of trees, in a certain
close, it was held to be bad on two grounds ; — 1st, because
it was wholly undefined who came under such a description,
and could avail themselves of it ; and, 2d, because it is a
claim to take the profits of land, which can only be pre-
scribed for in a que estate P"
Among the instances of customary easements, as
[*79] *distinguished from those by prescription, which have
been recognized as valid, are a right of way to a
church,^ to dance upon a close for recreation,* to dry or
mend fishermen's nets upon a close,^ a right of way to a
market, and a right to be quit of toll, a right to turn one's
plough upon another's land, a right of a gateway or of a
watercourse,^ a right to take water from a spring or well in
another's land for culinary and domestic purposes," a right to
a public landing-place to land upon and pass over, but not
to occupy for storage of articles.^
19. Whatever may be claimed by custom may also be
1 Codman v. Evans, 5 Allen, 310.
2 Selby V. Robinson, 2 T. E. 758.
3 Smith V. Gatewood, Cro. Jac. 152.
* Abbot V. Weekly, 1 Lev. 176; Bland v. Lipscombe, 4 Ellis & B. 714, note;
ante, sect. 1, pi. 6.
5 Baker v. Biereman, Cro. Car. 418.
6 Pain V. Patrick, 3 Mod. 289, 294 ; Perley v. Langlcy, 7 N. H. 233 ; Common-
wealth V. Newbury, 2 Pick. 59, per Putnam, J. ; 17 Vincr, Abr. 256, Prescription,
A, note.
7 Race V. Ward, 4 Ellis & B. 702. Lord Campbell cites Year B. 15 Edw. IV.,
fol. 29, pi. 7 ; Weekly .v. Wildman, 1 Ld. Raym. 405 ; Emans v. Tiunbull, 2
Johns. 313.
** Coolidtro V. Learned, 8 Pick. 511 ; Pearsal! v. Post, 20 Wend. Ill, 128.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 117
claimed by prescription.^ But the extent of the claim which
may be made by the latter is much broader tlian that by the
former, and this is commonly illustrated by the general prop-
osition that the one extends to profits a prendre, the other
does not.^
Among the prescriptions, but similar in many respects to
rights by custom coming under the class o[ profits a prendre,
are rights in the inhabitants of a town, if incorporated, to
take sand or soil, stone, grass, or turves on another's land,
such as sand, for instance, that is washed up by tlie sea;^
or to pass over land to angle and fish.* Or to take sea-weed
from another's land,^ or to pile wood or lumber for pur-
poses of sale or shipment.'^
* But, in the language of Maule, J., " A claim to [*80]
enter upon another man's land, and dig a hole there,
can hardly be called o. profit a prendreJ'^ ''
20. In order to claim a right of profit a prendre, by the
inhabitants of a town, it must be done by them in their
corporate capacity, and must be prescribed for in a que
estate.^ But to gain this right requires more than the in-
dividual acts of the inhabitants. It must be done as a cor-
porate act. It was, accordingly, held that the taking of sea-
weed, or landing upon a beach by individual inhabitants of
a town, was no evidence of a prescriptive right to do this
1 Perley v. Langley, 7 N. H. 233 ; Cortelyou v. Van Brundt, 2 Johns. 357 ;
Pearsall v. Post, 20 Wend. Ill, 129.
2 Hardy v. Hollyday, cited in 4 T. R. 718, 719 ; 1 Wms. Saund. 341, note 3 ;
Gateward's case, 6 Rep. 59; Waters v. Lilley, 4 Pick. 145; Post v. Pearsall, 22
Wend. 425.
3 Perley v. Lang^ley, 7 N. H. 233 ; Blewett v. Tregonning, 3 Adolpli. & E. 554.
* Waters v. Lilley, 4 Pick. 145.
5 Hill V. Lord, 48 Maine, 100 ; Nudd v. Hobbs, 17 N. H. 527.
6 Littlefield v. Maxwell, 31 Maine, 134.
■? Peter v. Daniel, 5 C. B. 568.
^ Grimstead v. Marlowe, 4 T. R. 718, per Keiujon, C. J. ; Abbot v. Weekly,
1 Lev. 176 ; Hardy v. Hollyday, cited in 4 T. R. 719 ; Perley v. Langley, 7 N. H.
233 ; Hill v. Lord, 48 Maine, 98 ; Foxhall v. Venables, Cro. Eliz. 180; Fowler r.
D.ale, lb. 362 ; Weekly v. AVildman, 1 Ld. Raym. 405 ; Whittier v. Stockman, 2
Bulst. 87.
118 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I
in their corporate capacity. ^ Nor would it be claimed by
custom, being ix profit a prendre P'
In respect to the distinction between easements, properly
so called, and a profit a prendre^ when claimed by individuals,
it is said by "Walworth, Ch., that " such easements are either
personal and confined to an individual for life merely, or are
claimed in reference to an estate or interest of the claimant
in other lands as the dominant tenement ; for a profit a
prendre in the land of another, when not granted in favor of
some dominant tenement, cannot properly be said to be an
easement, but an interest or estate in the land itself."'^
But an easement like that of taking water from a spring
or well on another's land is not a profit a prendre, though
an interest in land and an incorporeal hereditament, and
would be the subject of grant or prescription, and might
be prescribed for by reason of occupying an ancient mes-
suage, though the prescription must always be laid in him
who has the inheritance.* But one cannot prescribe
[*81] *except in his own person for an easement proper, in
gross, since such a right cannot be created by grant
so as to be assignable or inheritable."'
21. And if one prescribes in a que estate, he can claim
nothing under his prescription but such things as are inci-
dent, appendant, and appurtenant to lands.*^
1 Sale V. Pratt, 19 Pick. 191 ; Green v. Chelsea, 2-t Pick. 71 ; Nudd v. Hobbs,
17 N. H. 524.
- Hill V. Lord, Sup.
3 Post V. Pearsall, 22 Wend. 425, 4.32 ; ante, sect. 1, pi. 7, 12. See Ferris v.
Brown, 3 Barb. 105.
* Manning,' v. Wardale, 5 Adolph. & E. 758 ; Tyler v. Bennett, Ibid. 377. See
Hill V. Lord. Sup. as to taking water being a profit a prendre. Perley v. Langley,
7 N. H. 2.33 ; Co. Litt. 121 a ; 2 Sharsw. Blackst. 264, note ; Pain v. Patrick, 3
Mod. 289, 294 ; Smith v. Kinard, 2 Hill, So. C. 642 ; Baker v. Brereman, Cro.
Car. 419.
5 Ackroyd v. Smith, 10 C. B. 164, 187. But see White v. Crawford, 10 Mass.
183, as to ways in gross, and ante, pp. *8, *10 ; Bailey v. Stephens, 12 C. B., n. s.,
S 110.
« Donnell v. Clark, 19 Me. 174 ; Ackroyd v. Smith, 10 C. B. 164, 188. Sar-
gent V. Gutterson, 13 N. H. 467 ; Muskctt v. Hill, 5 Bing. N. C. G94.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 119
In Wickham v. Hawker, it was held that the liberty of
fowling, hawking, and fishing, wlierc one takes fish to his
own use, are profits a prendre, and by a grant to one and
his heirs of cither of those rights, it may be exercised by him
or his servants. Whereas, a personal license to hunt and
the like could only be exercised by the party himself to
whom it was given. ^
22. Whether one can set up a claim to a right in anoth-
er's land, both by prescription and by custom, or must rely
upon one as being inconsistent with a claim by the other,
was a question which Denman, C. J. declined to answer, in
Blewett V. Tregonning.^ But in Kent v. Waite,^ the court
use this language : " It has been urged that the evidence
proved a custom, and not a prescriptive right ; but we think
it proved both a prescriptive title in the plaintiff and a right
by custom in others, and their rights are not inconsistent.
Different persons may have a right of way over the same
place by different titles, one by grant, another by prescrip-
tion, and a third by custom, and each must plead his own
title ; and if he proves it, it is sufficient, although he may
also prove a title in another, provided the titles are distinct
and not inconsistent."
*Bearing in mind that it is now settled beyond a [*82]
doubt that the inhabitants of a town, in their corpo-
rate capacity, are capable of taking an easement or other in-
corporeal hereditament, and that they may become seized of
a right by grant, prescription, or reservation,'^ the following
language of the court, in Perley v. Langley,^ presents, per-
haps, as good a summary of the law, as it bears upon the
1 Wickham v. Hawker, 7 Mecs. & W. 63 ; ante, pp. *7, *28. Davies' case, 3
Mad. 246 ; Wolfe v. Frost, 4 Sandf. ch. 93.
2 Blewett V. Tregonuing, 3 Adolpli. & E. 554.
3 Kent V. Waite, 10 Pick. 138.
* Commonwealth v. Low, 3 Pick. 408 ; Valentine v. Barton, 22 Pick. 75 ;
Green v. Chelsea, 24 Pick. 71 ; Rose v. Bunn, 21 N, Y. 275 ; Smith v. Kinard,
2 Hill, So. C. 642; Hardy v. Hollyday, cited in 4 T. R. 718, 719; Avery r.
Steward, 1 Cusli. 496.
5 Perley v. Langley, 7 N. H. 235.
120 THE LAW OF EASEMENTS AND SERVITUDES. [Cir. I.
distinction between public rights claimed by custom and like
rights claimed by prescription, and such as are claimed by
individuals, as can be readily found. " If these rights are
common to any manor, district, hundred, parish, or county,
as a local right, they are holden as a custom. If the same
rights are limited to an individual and his descendants, to a
body politic and its successors, or are attached to a particu-
lar estate, and are only exercised by those who have the
ownership of such estate, they are holden as a prescription,
which prescription is either personal in its character or is a
prescription in a que estate^
But individuals cannot gain a prescriptive right of way by
passing over an open passage-way across a private estate
where the user is not in connection with some estate of
their own.^
23. Like a custom, a prescription to be good must be a
reasonable one. Thus, where one owning a brick-kiln un-
dertook to justify carrying away from another's land a quan-
tity of clay, under a prescriptive right to dig and carry away
therefrom clay indefinitely as to quantity, it was held to be
bad, as it was virtually prescribing for a right to carry away
the entire close.^ So is a prescription to cut all the wood and
timber on a lot of land void, because of its being unreason-
able.-^ So where one owning a mine, undertook to claim a
prescriptive right to excavate coal, though by so doing he
undermined and injured an ancient dwelling-house, it was
held that it could not be sustained, because it was not to be
presumed, in the absence of positive evidence of a grant,
that the tenant of such a house would ever have
*comc into such an agreement, it being unreasonable [*83]
from its being destructive in its effect.^ So a right
1 Grossman v. Vignaud, 14 Louis, 173 ; In State v. McDaniel, 8 Jones, L.
284.
'■^ Clayton v. Corby, 5 Q. B. 415, 422; Wilson v. Willes, 7 East, 121.
3 Bailey v. Stephens, 12 C. B., n. s., 108. See Iloskins v. Kobins, 2 Wms.
Saund. 323.
* Hilton V. Granville, 5 Q. B. 701, 730. See Rowbotham v. Wilson, 6 Ellis
& B. 593 ; B. c, 8 H. of L. Gas., 348 ; Humphries v. Brogden, 12 Q. B. 739. See
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 121
cannot be claimed by prescription to pass over anotlicr's es-
tate in several different directions, to suit the convenience of
him who claims the right of way.^
As nothing but incorporeal hereditaments can be claimed
by prescription, it was held that a man could not prescribe
for a right to erect a building on another man's land for the
purpose of fishing in the adjacent waters, nor for a right to
use a saw-mill on another's land. Such rights are not the
subjects of prescription, in the sense in which the term is
properly applied, and an exclusive right to possession of land
cannot be established by prescription.^
But a right to convey water across the land of another to
one's mill is an incorporeal hereditament, for an injury to
which trespass qu. cl. would not lie.^
One might prescribe for the privilege of taking coals for
use in another's land, but he could not prescribe for a vein
of coal itself lying in another's land.*
And it is no answer to a claim of way by prescription, that
the claimant lias another way to the premises.^
It may be remarked, in passing, that, in setting forth a
claim of an easement by prescription, the same particularity
should be observed as if the person claimed by express
grant.^
A tenant at will or for years may prescribe for a
right *of way, but it must be done in the name of his [*84]
landlord, the tenant of the fee."
24. In considering user and enjoyment as evidence of the
also Blackett v. Bradley, 1 B. & Smith, 954 ; where it is said that though the
reasoning in Hilton v. Granville had been impugned, the case itself has not been
overruled, and that case itself was also decided upon it as an authority.
1 Jones V. Percival, 5 Pick. 485 ; Brice i;. Randall, 7 Gill & J. 349 ; Holmes v.
Seeley, 19 Wend. 507.
2 Cortelyou v. Van Brundt, 2 Johns, 357; Ferris v. Brown, 3 Barb. 105;
Donnell v. Clark, 19 Me. 174; 2 Sharsw. Blackst. 263, 264, note.
3 Baer v. Martin, 8 Blackf. 317.
* Willvinson r. Proud, 11 Mees. & "W. 33. Caldwell v. Copeland, 37 Pcnn. 431.
5 Staple V. Hcydon, 6 Mod. 1 ; Com. Dig. Chimin.
6 Wright V. Rattray, 1 East, 377, per Dodderidge ; Sloman v. West, Palm.
387 ; po&t, chap. 6, sect. 2, pi. 16.
7 Smith V. Kinard, 2 Hill, So. C. 642.
122 TIIE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
possession of a prescriptive right, it will be proper to inquire
what the nature and character of such use must be, in order
to constitute such evidence, before attempting to apply the
same to the different classes of easements.
In the first place, the possession or enjoyment of what is
claimed must be long continued as well as peaceable, —
" long-ns tisus, nee per vim, nee elam, nee precario." ^
What shall be taken to be a sufficiently long- j^eriod of use
or enjoyment to create a prescription or presumptive grant,
in the modern use of the term, is understood to correspond
with the local period of limitation for quieting titles to
land.2 In England it is twenty years.^ So it is in South
Carolina,-* New Jersey,^ North Carolina,*^ Alabama,' Ken-
tucky ,s Maine,^ Massachusetts,^" and New York.^^ In New
Hampshire, Rhode Island, Delaware, Virginia, Mississippi,
Missouri, Indiana, Illinois, Wisconsin, and Florida the rule
would be the same, if, as is doubtless the case, the period of
prescription and limitation as to lands is the same.^^
In Vermont it is fifteen years. ^^ So in Connecticut.^*
[*85] *In Texas it is two years. ^^ So in Louisiana,^^ Ar-
kansas, and lowa.^''
1 Bract, fol. 222 h ; Co. Litt. 114a; Thomas v. Marshfield, 13 Pick. 240.
2 1 Greenl. Ev., § 17, note; Sherwood v. Burr, 4 Day, 244; Polly i-.* McCall,
37 Ala. 29.
3 Wright c. Howard, 1 Sim. & S. 190, 203.
* Cuthbcrt r. Lawton, 3 M'Cord, 194.
5 Campbell v. Smith, 3 Halst. 140.
6 Felton V. Simpson, 11 Ired. 84 ; Griffin v. Foster, 8 Jones L. 339.
■^ Stein V. Burden, 24 Ala. 130. It is now ten years, Wright v. Moore, 38 Ala.
596.
^ Manier v. Myers, 4 B. Monr. 514.
9 Rev. Stat, c 147, § 14 ; Pierre ?;. Fernald, 26 Me. 436.
w Sargent v. Ballard, 9 Pick. 251 ; Gen. St. c. 91, ^ 33.
11 Parker v. Foote, 19 Wend. 309 ; Miller v. Garlock, 8 Barb. 153.
1'^ Angell, Limit., 4th ed., Appendix of Statutes. Gentleman v. Soule, 32 111.
278 ; Evans v. Dana, 7 R. L 311.
13 Rogers v. Page, Brayt. 169 ; Tracy v. Athcrton, 36 Verm. 515.
1* Sherwood (•. Burr, 4 Day, 244.
15 Haas V. Choussard, 17 Texas, 588.
i*"' Delahoussaye ;•. Judice, 13 La. Aim. 587.
1^ Angell, Limit., 4th ed.. Appendix of Statutes.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 123
In Pennsylvania it is twenty-one years.^ So in Ohio.^ In
Georgia and Tennessee the period is seven years.-^ In Michi-
gan it is twenty-five years,'*^ and in California five.'^
The earliest case in Massachusetts in which the doctrine
of twenty years' enjoyment was allowed as evidence of a
grant of an easement was Hill v. Crosby.*
The doctrine upon the subject maintained by the Supreme
Court of the United States is thus stated : " In general, it
is the policy of courts of law to limit the presumption of
grants to periods analogous to those of limitations, in cases
where the statute does not apply." ^
By the law of France, possession and enjoyment of con-
tinuous and apparent easements for the period of thirty
years create a prescriptive title to the same.*^
25. But no time of enjoyment less than the term of pre-
scription can give one a right of easement in the land of
another, or raise any presumption in favor of such a right.
In one case, cited below, the enjoyment and acquiescence
had been for nineteen years ; in another, between fifteen
and twenty years."
There must, moreover, be what answers in law to
an *actual enjoyment, in order to create a prescrip- [*86]
tion. It is laid down as an invariable maxim by wri-
ters upon the civil law, Tantum prcBScripium, quantum pos-
sessum. Prescription acquires for the possessor precisely
what he has possessed, but nothing beyond that. Prescrip-
tiones tantum hahent de potentia quantum habcnt de actu.
1 Okeson v. Patterson, 29 Penn. St. 22.
2 Aiigell, Limit., 4tli ed., Appendix of Statutes.
8 Ibid.
* Hill V. Crosby, 2 Pick. 467.
6 Ricard r. Williams, 7 Wheat. 110.
6 2 Fournel, Traite' des Servitudes, 338, \ 221 ; Code Nap., Art. 690.
7 Gayetty v. Bethunc, 14 Mass. 49, .55; Campbell v. Smith, 3 Halst. 140;
Prescott V. Phillips, cited 6 East, 213; King v. Tiffany, 9 Conn. 162; Oilman
V. Tiltoir, 5 N. H. 231 ; Dyer v. Depui, 5 Whart. 586 ; Haight v. Price, 21 N. Y.
241 ; Thurston v. Hancock, 12 Mass. 220 ; Green v. Chel»ea, 24 Pick. 71 ; Law-
ton V. Rivers, 2 M'Cord,445; Jeter v. Mann, 2 Hill, So. C. 641 ; Stuyvesant i;.
Woodruff, 1 N. J. 133 ; Griffin i;. Foster, 8 Jones, L. 339.
124 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
The possession, therefore, of a part only of a divisible thing
is not the possession of the whole. ^
26. In the next place, the use and enjoyment of what is
claimed must have been adverse, under a claim of right ,
exclusive, continuous, uninterrupted, and with the knowledge
and acquiescence of the owner of the estate in, over, or out
of which the easement prescribed for is claimed, and while
such owner was able, in law, to assert and enforce his rights,
and to resist such adverse claim, if not well founded. And
it must, moreover, be of something which one party could
have granted to the other. Out of the numerous cases that
might be cited to sustain the above proposition, in part or as
a whole, a few have been selected as a matter of convenient
reference.2
27. In analyzing the essential requisites to the gaining of
a right by prescription, by adverse is meant that it was not a
matter of permission asked by the one party and granted by
the other, for an adverse right of easement cannot grow out
of a mere permissive enjoyment.^ The real point of distinc-
tion is between a tolerated or permissive user, and one which
is adverse or as of right. The former will not mature into a
title by prescription.^ Thus a tenant cannot prescribe for
1 3 Toullier, Droit Civil Franoais, 485 ; post, sect. 39.
2 Colvin V. Burnet, 17 Wend. 564 ; Luce v. Carlej, 24 Wend. 451 ; Hargent
V. Ballard, 9 Pick. 251, 255; Gayetty v. Bethune, 14 Mass. 49, 55; Parker v.
Foote, 19 Wend. 309, 313 ; Hart v. Vose, Ibid. 365 ; Stokes v. Appomatox Co.,
3 Leigh, 318; Golding v. Williams, Dudley, 92; Arnold v. Stevens, 24 Pick.
106; Yard v. Ford, 2 Wms. Saund. 175 d, note; 3 Dane, Abr. 251, 252; Wat-
kins V. Peck, 13 N. H. 360; Thomas v. Marshfield, 13 Pick. 240; Tickle v.
Bro%vn, 4 Adolph. & E. 369 ; Bradbury v. Grinsell, cited 2 Wms. Saund. 175 d;
Olney v. Gardner, 4 Mces. & W. 496; Miller v. Garlock, 8 Barb. 153; Mebane
V. Patrick, 1 Jones, No. C. 23 ; Ingrnbam v. Hough, Ibid. 39 ; Esling v. Williams,
10 Penn. St. 126 ; Gentleman v. Soule, 32 111. 279 ; Tracy v. Atherton, 36 Verm.
514 ; Harper v. Parish, &c., 7 Allen, 478; Edson v. Munsell, 10 Allen, 560, 568 ;
Evans v. Dana, 7 R. I. 311.
8 Bachelder i\ Wakefield, 8 Cush. 243; Howard v. O'Neill, 2 Allen, 210;
Mcdford v. Pratt, 4 Pick. 222 ; Kilburn v. Adams, 7 Mete. 33 ; Gayetty v. Be-
thune, 14 Mass. 50; Tickle v. Brown, 4 Adolph. & E. 369 ; Hall v. M'Leod, 2
Mete. Ky. 98 ; Ingraham v. Hough, 1 Jones, No. C. 39.
* Polly V. M'Call, 37 Ala. 20 ; 8. c, Select Cases, Ala. 255 ; Pierce v. Cloud,
42Pcnn. 113.
Sect. 4.] ACQUIRING EASEMENTS BY TRESCRIPTION. 125
an easement against his landlord/ and so long as a way is
used under a license, it cannot be claimed by prescription. ^
Where A, by permission of B, dug a drain from B's land
through A's to draw off water standing on B's land, and this
was used for more than twenty years in that state, and a
third party purchased B's land wliile the drain was in exist-
ence, it was held that the owner of B's land gained no right
of easement to have the same drained thereby, by means of
such usc.^
*It is an important circumstance, in determining [*87]
whether the user of the right claimed is adverse or
not, that it is contrary to the interest of the owner of the
land.4
If, therefore, it appears that the enjoyment has been by
permission asked, or for a rent paid, or other equivalent acts
done by the one exercising the privilege, showing that it was
not done adversely or under a claim of right, it effectually
rebuts the presumption of a grant. Thus an offer, within
the twenty years, by the claimant of the easement, to pur-
chase the right of the owner of the land, was held to be an
act of this character.^ And the language of the court of
New York upon the point is very significant and strong:
" It is well known that a single lisp of acknowledgment by
a defendant that he claims no title, fastens a character upon
his possession which makes it unavailable for ages." "^
But asking permission to use an easement once actually
acquired, does not affect the right. It would only bear upon
the question whether the prior use had been adverse or per-
missive in a trial of that issue.'''
" There- must be an adverse possession or assertion of
1 Phillips V. Phillips, 48 Penn. 184.
2 Crounse v. Wemple, 29 N. Y. 542, *
3 Smith V. Miller, II Gray, 145.
* Arnold v. Stevens, 24 Pick. 106.
5 Watkins v. Peck, 13 N. H. 360.
6 Colvin V. Burnet, 17 Wend. 564. See Betts v, Davenport, 13 Conn. 286.
7 Perrin v. Garfield, 37 Verm. 310.
126 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
right, so as to expose the party to an action, unless he had a
grant ; for it is the fact of his being thus exposed to an action,
and the neglect of the opposite party to bring suit, tliat is
seized upon as the ground for presuming a grant in favor of
long possession and enjoyment, upon the idea that this ad-
verse state of things would not have been submitted to if
there had not been a grant." ^
Thus in Doe v. Wilkinson, which, though not a case of
easement, illustrates the principle above stated, the defend-
ant had been in possession of a parcel of land which he en-
closed over thirty years previous to 1822. In 1808 the plain-
tiff purchased it of the true owner, and in 1816 called on
the defendant to pay him sixpence as rent, and the
[*88] *defendant paid it three times. In an action to re-
cover the land in 1822, the court held this payment
of rent conclusive evidence that the occupation by the tenant
was a permissive one, and that he was the plaintiff's tenant.^
So the yielding by the owner of the dominant estate to
the demand of the owner of the servient one, that he
should forbear to exercise the right claimed during the pe-
riod of alleged enjoyment under which the claim is made,
would rebut the idea that such enjoyment was adverse under
a claim of right. Thus where the owner of a lower mill had
been accustomed, during a state of low water, to place flash-
boards upon his dam, and continued this usage for more than
twenty years, but during these years had complied with the
requirements of the owner of an upper mill to remove them,
at times, and did not claim a right to maintain them to the
injury of the upper mill, it negatived the claim of a prescrip-
tive right to enjoy the use of such flash-boards.-^
28. But though a right of way cannot be gained by the
parol agreement of him who creates it, yet where, under
1 Felton V. Simpson, 11 Ired. 84; Mebane v. Patrick, 1 Jones, No. C. 23.
2 Doe V. Wilivinson, 3 Barncw. & C. 413; Lisle 's Lessee v. Harding, cited in
Bullcr, N. P. 104. See also Church v. Burghardt, 8 Pick. 327.
3 Sumner v. Tileston, 7 Pick. 198.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 127
such agreement, the owner of the dominant estate used
the way thus created for twenty years, and the same was
acquiesced in by the owner of the servient estate, it was
held to be such an exercise of the way, under a ch^im
of right, as to gain thereby a prescriptive right to the
samc.i
And it is no objection to gaining an easement by prescrip-
tion, that the same was originally granted or bargained for
by parol. That the use began by permission does not affect
the prescriptive right, if it has been used and exercised for
the requisite period, under a claim of right on the part
of the owner of the dominant tenement. Land *itsclf [*89]
may be gained in that way, as well as an easement in
it.2
In Monmouth Canal Co. v. Harford, Lord Lyndhurst says :
" The sim^jle issue is, whether there has been a continued
enjoyment of the way for twenty years, and any evidence
negativing this is admissible. Every time that the occupiers
asked for leave, they admitted that the former license had
expired, and that the continuance of the enjoyment was
broken." 2
And in Golding v. Williams the language of the court is :
" The use must be adverse, and such as would show that no
one could dispute the exercise of it."*
29. An enjoyment of a thing may be continued long
enough in respect to time, and yet under such circum-
stances as to rebut the idea of its being an adverse, though
not permissive, user. Thus, where a party owned land ad-
joining a beach which he depastured, but, there being no
fence between his land and the beach, his cattle were accus-
tomed to pass on to the beach, and thence over the adjoin-
ing beaches, which were unfenced,it was held not to be such
1 Ashley v. Ashley, 4 Gray, 197.
2 Arbuckle v. Ward, 29 Vt. 43, 52. See Sumner v. Stevens, 6 Mete. 337.
8 Monmoutli Canal Co. i'. Harford, 1 Crompt. M. & R. 631. See Church r.
Burghardt, 8 Pick. 327.
* Goldiug V. Williams, Dudley, 92.
128 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
an adverse enjoyment of a right to run upon these beaches
as to gain a prescriptive right thereby, since it was in no
way injurious to the rights of the owners of the beaches, nor
likely to produce resistance or opposition.^
So no one will acquire a title by prescription, by pasturing
his cattle on an open common, training-field, or highway ;
for, these being kept open for public use, no one by using
them can raise any presumption of a particular grant in his
favor .2
In accordance with this idea, that the enjoyment of
[*90] a *thing by one cannot be held to be adverse to an-
other who is in no way injured thereby, especially if
he is not cognizant of such enjoyment ; where one raised
water upon his land which percolated into the land of an
adjoining proprietor, but did no harm to the same, nor was
the fact known to the land-owner until he had occasion to
build upon it, when, upon beginning to excavate the same,
he found that the water beneath the surface interfered with
his occupying his land, it was held that, though this raising
of the water had been long continued, no prescriptive right
to continue it had thereby been acquired, since prescription
does not begin till the act by which it is claimed has begun
to work some injury to the right of the other party, of which
he might be cognizant.^
So where one, having diverted the waters of a stream by a
ditch dug within his own land, but occasioned no damage
thereby to his neighbor's land, so long as he kept the ditch
clear, afterwards suffered it to become filled up and clog-
ged, whereby the lands of his neighbor were damaged, it
was held that the prescription to maintain such diversion
must date from the time it began to cause injury, and not
from the time of digging the ditch.^ And where one under-
1 DonncU v. Clark, 19 Me. 174, 183; Thomas v. Marshficld, 13 Pick. 240.
2 Thomas v. Marshficld, 13 Pick. 240; First Parish in Gloucester v. Beach,
2 Pick. 60, note.
8 Cooper V. Barber, 3 Taunt. 99 ; ante, pi. 4. Sec also Cooper v. Smith, 9
Serg. & R. 33.
♦ Polly V. M'Call, 37 Ala. 30.
Sect. 4.] ACQUIRING EASEMENTS BY TRESCRIPTION. 129
took to prescribe for the right to throw cinders, &c., into a
stream, which injured a mill below, it was held that it must
date from the time that such injury began.^
And the cases last cited are so nearly identical in principle
■with the two cited below,^ that it is unnecessary to repeat
the facts at length.
30. It is not, however, necessary to show that the act
which forms the basis of the prescription did any actual dam-
age to the party against whom it is claimed, provided it was
an invasion of his riglit.-^
31. And if there has been the use of an easement for
twenty years unexplained, it will be presumed to be under
a claim of right, and adverse, and be sufficient to establish a
title by prescription, and to authorize the presumption of a
grant, unless contradicted or explained.*
An instance of the application of this doctrine was that of
White V. Chapin, very recently decided, wherein Foster, J.
gave an elaborate opinion. One ancient ditch connected
with another still more ancient, by which the water accu-
mulating upon a considerable tract of land flowed from the
first into the second ditch, and thence into a natural stream.
The two estates through which these ditches ran, came into
the same owner's possession. After a while he sold the lower
1 Murgatroyd'y. Robinson, 7 Ellis & B. 391.
2 Roundtree v. Brantley, 34 Ala. 544 ; Crosby v. Bessey, 49 Me. 539. See
also Flight v. Thomas, 10 Ad. & El. 590 ; post, p. *100, 10 Law M. & K. 182.
3 Bolivar Mg. Co. v. Ncponset Mg. Co., 16 Pick. 241, 247; Bliss v. Rice, 17
Pick. 23; Hobson v. Todd, 4 T. R. 71 ; Atkins v. Bordman, 2 Mete. 457; Par-
ker i\ Foote, 19 Wend. 309, 314 ; Hastings v. Livermore, 7 Gray, 194 ; post, chap.
6, sect. 2, pi. 1.
* Miller v. Garlock, 8 Barb. 153; Chalk v. M'Alily, 11 Rich. 153; Williams
V. Nelson, 23 Pick. 141, 147; Yard v. Ford, 2 Wms. Saund. 172; Blake v. Ev-
erett, 1 Allen, 248; Ricard v. Williams, 7 Wheat. 59, 109; Hammond v. Zeh-
ner, 21 N. Y. 118; Bolivar Mg. Co. v. Neponset Mg. Co., 16 Pick 241 ; Colvin
V. Burnet, 17 Wend. 564; Olney v. Fenner, 2 R. I. 211 ; Pue v. Pue, 4 Md. Ch.
Dec. 3S6; Esling v. Williams, 10 Pcnn. St. 126; Steffy v. Carpenter, 37 Penn.
St. 41 ; Worrall r. Rhoades, 2 Whart. 427 ; Garrett v. Jackson, 20 Penn. St. 331 ;
Ingraham v. Hough, 1 Jones, No. C. 39 ; Polly v. Bl'Call, 37 Ala. 30; Perrin v.
Garfield, 37 Verm. 310 ; Hammond v. Zehner, 23 Barb. 473.
9
130 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
parcel to the defendant's grantor ; and then sold the upper
to the plaintiff's grantor. The estates thus remained for
more tlian twenty years, when the owner of the lower parcel
stopped the ditch. The upper owner claimed a prescriptive
right to maintain the same, and this right was sustained by
the court.^
It may, however, be remarked, in passing, that the plain-
tiff, it would seem, might have asserted the same right under
an implied grant, when his grantor severed the two heritages
through which these drains had been constructed, and were
openly in use when he conveyed them to separate and dis-
tinct owners, agreeably to the doctrine of Pyer v. Carter,
hereinbefore commented on at length.^
Accordingly the court, in Garrett v. Jackson, say:
[*91] " Where *one uses an easement whenever he sees fit,
without asking leave, and withoiit objection, it is ad-
verse, and an uninterrupted adverse enjoyment for twenty-
one years is a title which cannot be afterwards disputed.
.... The owner of the. land has the burden of proving
that the use of the easement was under some license, indul-
gence, or special contract inconsistent with a claim of right
by the other party .^
But to bring a case within the principle above stated, it is
apprehended that it must clearly be such a use as would be
the invasion of another's property in a manner indicating a
claim of right on the part of one party, and a yielding to
such right by the other. Thus, in Miller v. Garlock, the
right used was that of a private way, and in Chalk v. M'Alily,
it was that of setting back water upon another's land by a
permanent dam. But where one had exercised the right to
pass over an open piece of ground around a public academy,
to his own house, whenever he pleased, and this was done by
1 White V. Chapin. Allen not yet reported.
'•^ 1 H. & Norm. 916 ; ctf^te, *44 ; Copic's case, ante, p. *49 ; Dunklec v. "Wilton
R. R., 4 Fo.stcr, 489 ; post, p. *530; Dodd v. Burchell, 1 II. & Colt. 121 ; Elliot v.
Rhett, .5 Rich. 40.5.
3 Garrett v. Jackson, 20 Penn. St. 331 ; Pierce v. Cloud, 42 Penn. 102, 113, 114.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION, 131
the proprietors of the academy and other people generally,
whenever they had occasion, it was held to be a permissive
and not an adverse use as to the owners of the land. Nor did
it make any difference, that the owner of the house crossed
the land in one uniform track, provided the same bo not
wrought by him into away for his distinct and separate use.^
And it has accordingly been held, that, under the statute
of 2 & 3 William lY. c. 71, § 5, it would be no allegation of
a prescriptive right of way, to aver in a plea, simply, that
the same had been enjoyed for twenty years. In order to
avail as such, it must be alleged to have been done " as of
right." 2
And the mere enjoyment of what is in the nature of an
easement in favor of one parcel in or over another
parcel of *land, for the requisite period of time, will [*92]
not, under the statute of 2 <fe 3 William IV., gain a
prescriptive right, if, during any portion of that time, both
tenements have been in tlie occupation of the same person.^
Upon the same principle, where one owns land adjoining
a highway, the soil of which belongs to another, and occupies
it by laying wood, logs, or other materials upon it, in front
of his land, he would not, by such use, acquire an easement
against the owner of the soil of the highway. It would be
considered permissive on the part of the public, and not ad-
verse to the owner of the soil, and one reason would be, that
he had not the right of possession during the time."^
32. It is upon the ground above stated, that the use is
neither an injury to the owner of the land, nor evidence of
any assertion of a right adverse to him, that the courts of
South Carolina have repeatedly held that no one gains an
easement of way or of hunting on another's land, which is
wild and unenclosed, by travelling across or hunting over it,
1 Kilburn v. Adams, 7 Mete. 33 ; sec ante, pi. 31, note.
2 Holford V. Hankinson, 5 Q. B. 584 ; Oliiey v. Gardiner, 4 Mees. & W. 496.
See Mebane r. Patrick, 1 Jones, No. C. 23.
3 Harbridge v. Warwick, 3 Exch. 552.
* Parker v. Framinghara, 8 Mete. 260.
132 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
such use by the public being regarded as a permissive one,
from the condition of the country, and the general iinder-
standing of the people who enjoy it, unless evidence is offered
to give a different character to such use.^
It does not depend upon the land being unenclosed, but
upon the intention with which the act of passing over it is
done, as indicated by the nature of the use. If one were
notoriously to use a way across the unenclosed or forest land
of another from a highway to his own premises, not casually,
as in hunting or simply travelling across it, but for
[*93] purposes *of occupying or cultivating his own land,
under some notorious assertion of right, he may there-
by acquire an easement of way over such unenclosed or forest
land.2
The rule, as stated in one case, is, that the way, in order
to be gained by such use, must be a definite one, " with an
a quo and an ad querns '^
33. And in Maine, the courts, in applying the doctrine of
adverse use to cases where mill-owners have exercised the
statute right to flow the lands of others, have held that,
inasmuch as no claim of damages can be prosecuted until
some injury has been sustained by the land-owner, no ease-
ment of right to flow can be acquired by the mill-owner in
such cases by merely continuing the act of flowing for twenty
years. It must be such as to cause damage to the land-
owner, in order to raise a presumption of grant from twenty
years' enjoyment ; otherwise the law will presume it to have
1 Rowland v. Wolfe, 1 Bailey, 56 ; Lawton v. Rivers, 2 M'Cord, 445 ; Turn-
bull V. Rivers, 3 M'Cord, 131 ; M'Kee v. Garrett, 1 Bailey, 341 ; Nash v. Peden,
1 Specrs, 17 ; Sims v. Davis, Cheves, 1 ; Hogg v. Gill, 1 M'Mull, 329 ; Golding
V. Williams, Dudley, 92 ; Prince v. Wilbourn, 1 Rich. 58 ; Watt v. Trapp, 2
Rich. 136; Gibson v. Durham, 3 Rich. 85; Hale v. M'Leod, 2 Mete. Ky. 98.
See also Mcbanc v. Patrick, 1 Jones, No. C. 23.
2 Worrall v. Rhoades, 2 Whart. 427 ; Smith v. Kinard, 2 Hill, So. C. 642 ;
Jeter v. Mann, Ibid. 641 ; Reimer v. Stuber, 20 Penn. St. 458 ; Watt v. Trapp,
2 Rich. 136; Nash v. Peden, 1 Specrs, 17 ; Gibson v. Durham, 3 Rich, 85; Hall
j;. M'Leod, 2 Mete. Ky. 98.
3 Golding V. Williams, Dudley, 92.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 133
been done by authority of the statute, and subject to the
payment of damages in the mode prescribed by statute.^
34. But such is not held to be the law in Massachusetts.
The enjoyment of the right to flow another's land for twenty
years, if unexplained, will raise a presumption of grant,
although no actual damage could be shown to be occasioned
thereby. " It may be deemed adverse, if in any degree it
tend to impose any servitude or burden on the estate of
another." ^
35. And in New York it was held, that a continued user
of a right upon another's land, injuriously affecting the
same, for twenty years, such as flowing it, creates a
*presumption of a grant, and if the owner of the land [*94]
would rebut it, he must^how it to have been done by
license or permission.^
So where one abutted his mill-dam upon another's land,
without claiming any right to the soil, and continued to use
and enjoy the same for twenty years, it was held that he
thereby had acquired an easement to maintain his dam and
flowing.* And where a mill-owner used and maintained a
dam and pond of water to supply his mill, situate about a
mile below this dam, and continued so to use it the requi-
site length of time to gain a prescription, it was held that he
thereby acquired a right to the use of such dam and pond of
water for his mill, and that this passed as ||)purtenant to the
mill upon a sale thereof, although the dam and pond were
upon another person's land.^
86. One may acquire a negative easement in another's
land by adverse judgment for the term of twenty years, as
1 Tinkham v. Arnold, 3 Me. 120 ; Nelson v. Butterfiekl, 21 Me. 220 ; Under-
wood, V. No. Wayne Seythe Co., 41 Me. 291 ; Gleason v. Tuttle, 46 Me. 288;
Seidensparger v. Spear, 17 Me. 123 ; j^ost, chap. 3, sect. 5, pi. 9.
2 Williams v. Nelson, 23 Pick. 141.
3 Hammond v. Zehner, 21 N. Y. 118.
* Trask v. Ford, 39 Me. 437.
s Perrin v. Garfield, 37 Verm. 304. See Brace v. Yale, 10 Allen, 441 ; post,
p. *272.
184 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
well as an affirmative one. Thus in case of a mill upon a
stream, from which an ancient ditch had formerly caused the
waters of such stream to flow in a direction so as not to
reach the mill, the owner stopped the ditch, and thereby
the water of the stream flowed uninterruptedly to his mill.
This he enjoyed for twenty years, when, the owner of the
ditch having attempted to open it, it was held that the mill-
owner had thereby acquired the right to have the same kept
closed.i
37. It is no objection to the acquiring of an easement by
adverse enjoyment, that, to a certain and defined extent, it
is an excess of user beyond what has been granted by deed.
Thus, where one to whom a foot-way had been granted used
it as a carriage-way also for the space of twenty years, it was
held that he had gained a carriage-way by prescription.
But where an easement has been created by grant or
reservation, no use of it will be held to be adverse which can
be construed to be consistent with the terms of the grant or
reservation, and, consequently, the extent of the easement will
be limited by the terms of such grant or reservation .^
[*95] *38. In other words, the law never presumes a
grant nor raises a prescription from a use, where
there has been an express grant to which the use sub-
stantially conforms.^
39. An easem#it, moreover, cannot be prescribed for,
unless the party claiming it has actually used and enjoyed
it, as well as claimed it as of right. The prescription grows
out of the user and intent, and not the claim or intent with-
out the user, however strongly expressed. Thus it was held
not to be competent for one to establish a right of way over
another's land, by showing that, while standing on his own
land, he declared to a third person that he had a right of
1 Drewett v. Shcard, 7 Carr. & P. 465.
^ Atkins V. Bordman, 20 Pick. 291 •, s. c, 2 Mete. 457 ; Gayetty v. Bethune,
14 Mass. 49 ; Wheatlcy v. Chrisman, 24 Penn. St. 298.
8 Atkins V. Bordman, 2 Mete. 457, 4G5.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 135
way over the laud in question, but did not point it out or do
anything upon the last-mentioned close. ^
40. As an instance of what enjoyment would be held to be
adverse, and under a claim of right, although partaking
somewhat of the character of permissive use, B. and H. owned
adjacent lots running back from the street, on which they
occupied houses which were separated by an open passage-
way, along and near the middle of which the dividing line
of their land ran. This passage-way they both had made
use of for over twenty years, and at one time there was a
gate at the street which opened into the same. A street
having been opened from the first-mentioned street along
the other side of H.'s house, whereby he could reach his back
land, and having no occasion to use this passage-way any
longer, he built upon it, and insisted that B. had no other
right to use it than by way of indulgence and permission.
But the court held that, so far as either had used the other's
land for a way, it was to be presumed to be adverse, and,
having been continued more than twenty years, an easement
was thereby gained. The court refer to the circumstances
and situation of the premises in respect to the way,
as tending to confirm this view ; and held that, *after [*96]
such use, the burden of proof would be upon the
party resisting the claim, to show that the use had been
permissive.'-^
41. But it is otherwise where the subject-matter of enjoy-
ment is owned in common, and is in its nature indivisible,
like a water-power, though its parts are divided by the line
of ownership of the land. Thus, where the owners of land
upon the opposite sides of a stream have a water-power
between them, through which the dividing line of their lands
runs, and one of them occupies the whole power, he does
not thereby gain any prescriptive right to such exclusive use,
so long as the opposite proprietor neither iises nor seeks to
1 Ware v. Brookhouse, 7 Gray, 454 ; a}ite, sect. 25.
2 Barues v. Hayncs, 13 Gray, 188.
136 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
use, nor makes any provision nor lias any occasion for the
use of any part of the stream to which he is entitled. Such
use by the one owner is not deemed to be adverse to the right
of the other owner, for in using his own part of the privilege
he is obliged to use the whole as one entire thing.^
42. The case of Wheatley v. Chrisman presents an instance
where a right was gained by a constructive adverse enjoy-
ment of what had been granted to one by the party against
whom he claimed it. The defendant had granted to the
plaintiff a right to carry water across the defendant's land
for the purpose of irrigating the land of the plaintiff. This
he had enjoyed for more than twenty years, and daring that
time he had enjoyed the privilege of watering his cattle at
the ditch within his own land. The defendant, after this,
having fouled the water, it was held that the plaintiff might
have an action for the injury thus done to him by depriving
him of the benefit of the water in a state suitable for his
cattle to drink, although the watering of them upon his own
land had not been done adversely to the defendant.^ An-
other case of constructive, adverse possession arose out of
the situation of a party-wall standing upon an arch, one leg
of which rested on A.'s and the other on B.'s land, and it
was held, after twenty years, that A. had a right to have the
wall thus supported on B.'s land.^
43. Another requisite of a prescription is, that the en-
joyment of the right claimed thereby should be ex-
[*97] elusive, *which the court, in Davis v. Brigham, say
must mean, " that the enjoyment of the easement, as
claimed, whether it be a limited or more general enjoyment,
should exclude others from a participation of it."^
So it said that the use of a way, if continued uninterrupt-
edly, under a claim of right, and exercised in favor of a
1 Pratt r. Lamson, 2 Allen, 275 ; Stillman i'. White Rock Co., 3 W. & Min.
341, 343.
2 Wheatley v. Chrisman, 24 Tcnn. St. 304.
3 Dowling V. Ilennings, 20 Md. 184.
* Davis V. Brigham, 29 Me. 391, 403.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 137
proprietor, sui juris, may ripen into a right by an enjoyment
for the requisite length of timc.^
44. It would seem that it is not necessary that the one
who claims the easement should be the only one. who can or
may enjoy that or a similar right over the same land, but
that his right should not depend for its enjoyment upon a
similar right in others, and that he may exercise it under
some claim existing in his favor, independent of all others.
This is illustrated by the case of Kilburn v. Adams, where
Shaw, C. J. says : " The rule, we think, is, that where a
tract of land attached to a public building, such as a meet-
ing-house, town-house, school-house, and the like, and occu-
pied with such house, is designedly left open and unencum-
bered for convenience and ornament, the passage of persons
over it, in common with those for whose use it is appropri-
ated, is in general to be regarded as permissive, or under an
implied license, and not adverse. And though an adjacent
proprietor may make such use of the open land more fre-
quently than another, yet the same rule will apply, unless
there be some decisive act indicating a separate and exclusive
use, under the claim of right. A regularly formed and
wrought way across the ground, paved, macadamized, or
gravelled, and fitted for use as a way from his own estate to
the highway, indicating a line distinct from any use to be
made of it by the proprietors, would, in our view, be evi-
dence of such exclusive use and claim of right. So would
any plain, unequivocal act, indicating a peculiar and
*excluslve claim, open and ostensible, and distinguish- [*98]
able from that of others." ^
In accordance with the views above expressed, the court, in
Nash V. Peden say : " But I must not be understood as mean-
ing that, where a clear right of private way is established, it
is to be defeated because other persons than the plaintiff have
1 Pierce i'. Selleck, 18 Conn. 321.
2 Kilburn v. Adams, 7 Mete. 33. See Smith v. Higbee, 12 Vt. 113 ; Curtis v.
Angier, 4 Gray, 547.
138 THE LAW OF EASEMENTS AND SERVITUDES. [Cu. I.
used the road, such use being in no wise inconsistent with
the right Nor do I suppose the proposition can be
maintained, that a private right of way must be exclusive.
I can see no reason why two or even more may not acquire
a right in the same way, and by the same adverse use by
which one may acquire it." ^
It is accordingly said, that " no one can prescribe for a
privilege which is common to every one."^
And upon this principle it is assumed, in Hamilton v.
White, that one by passing over a public highway for twenty
years does not thereby acquire a private right of way over
the land occupied by the highway.^
45. So where the plaintiff claimed a right to divert the
waters of one stream into another by an artificial channel cut
through intermediate meadows, upon the ground that he had
enjoyed it for the requisite period of time, it was held to be
no answer to this claim, that the owners of the intermediate
meadow had a right, at certain seasons of the year, to divert
the waters running in such ditch into the original stream,
the question of such right to divert the water from one stream
to the other being between other parties than the owners of
the meadows.*
46. And different prescriptions may exist in favor
[*99] of *difrerent persons in respect to the same land.
That is, one may have a prescriptive right of use for
one purpose, and another may have a like right, but for an-
other purpose. Thus one may have a right to flow A. B.'s
land for the purpose of floating logs, while another may
acquire it to flow the same land for the purpose of working
mills.^
And this seems to be in accordance with the doctrine of
1 Nash V. Pedcn, 1 Speers, 22.
2 Tliomas v. Marslifield, 13 rick. 240 ; First Parish in Gloucester v. Beach, 2
Tick. 60, note.
8 Hamilton v. White, 1 Seld. 9.
♦ Bolivar M<;. Co. v. Neponset Mg, Co., 16 Pick. 241.
^ Davis V. Brigham, 29 Mc. 391.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 139
Kent V. Waitc, tliat different parties may have riglits of way
over the same land, one claiming it as apj)urtcnant to his
estate, and others by custom by reason of living in a certain
locality .1
Nor would it make any difference in acquiring the right,
as in the cases of Bolivar Manufacturing Co. v. Neponset
Manufacturing Co., and Davis v. Brigham, that, as between
the two who exercised the right which laid the foundation
for the prescription, one had such a paramount right that
the exercise of it operated as a suspension of the exercise
of the right of the other.^
So where, a town having made^ a road across a navigable
stream, a mill-owner erected his mill and applied the road
as a dam for the same, whereby land of a third party was
flowed, and this had been continued for more than twenty
years, it was held that he had thereby acquired a prescrip-
tive right to flow the land. Although he may have been
liable to indictment, by so doing, in a public prosecution for
a nuisance to the highway .^
47. The case of Curtis v. Angier illustrates the doctrine
that one may gain an easement by adverse, exclusive enjoy-
ment, though others are, at the same time, using it for other
purposes than those intended by him. In that case the pro-
prietors of a canal changed the public travel from an
*existing highway on to the tow-path of their canal. [*100]
The owner of a farm, through which the canal passed,
had used this tow-path for access to and the accommodation
of his farm for over twenty years, when the canal and tow-
path were discontinued. It was held that, if the way had
not, by such user, become a public highway by dedication, it
had become a private one by adverse use and enjoyment by
the owner of the farm, which he had a right to assert over
and along the course of the tow-path.*
1 Kent V. Waite, 10 Pick. 138.
2 Davis V. Brigham, 29 Me. 391 ; Bolivar Mg. Co. v. Neponset Mg. Co., 16
Pick. 241.
8 Borden v. Vincent, 24 Pick. 301. * Curtis v. Angier, 4 Gray, 547.
140 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
48. Another requisite in a valid prescription is, tliat the
use and enjoyment by virtue of which it is claimed should
have been continuous for the requisite period of time.^ This
involves two inquiries : — first, What may be regarded as
continuous acts of enjoyment ? and, second, how far the acts
of one person may be united with those of another to consti-
tute a continuity for the requisite period of enjoyment.
49. It may be stated, generally, that the time from which
the period is to be reckoned in computing the duration of a
continuous enjoyment, is when the injury or invasion of right
begins, and not the time when the party causing it began
that which finally creates the injury. Thus, where one
claimed a prescriptive right to flow another's land by a mill-
dam, it was held that the period of prescription began when
the dam was so far completed as permanently to raise the
water and set it back upon the land flowed, and did not
include the time during which it was in the progress of con-
struction.2
50. What shall constitute a requisite continuity of enjoy-
ment to gain thereby a prescriptive right to an easement
depends, of course, upon the character and nature of the
right claimed. To exercise a right of way, for in-
[*101] stance, *consists in passing over the land of another
more or less frequently, and at greater or less inter-
vals of time, according to the nature of the use to which its
enjoyment may be applied ; whereas a right to use a drain
or a watercourse through another's land, or to flow the same
for the purposes of operating a mill, or for other hydraulic
uses, implies a constant and continued enjoyment of the
right.
The terms of the definition are conlimious and uninter-
1 Pollard V. Barnes, 2 Cush. 191 ; Monmouth Canal Co. v. Harford, 1 Crompt.
M. & R. 614; Co. Litt. 113 6.
2 Branch v. Doanc, 17 Conn. 402 ; s. c, 18 Conn. 233 ; Hurlbut v. Leonard,
Brayt. 201 ; ante, p. *90. Crosby v. Bessey, 49 Maine, 543 ; Polly v. M'Call,
37 Ala. 20. See 2 Wood's Civ. L. 127, 128 ; post, c. 6, § 2, 10, Law Mag. & R.
182.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 141
rupted, which implies that the enjoyment shall neither have
been interrupted by the act of the owner of the land in, over,
or across which the right is exercised, nor by a voluntary
abandonment of the same by the other party. As it is ordi-
narily impossible to show an actual enjoyment of what is
claimed as an easement, every day, for twenty years, or in
fact to maintain such an uninterrupted enjoyment, each
case, it would seem, may present a matter for the jury, to
inquire whether the suspension of the enjoyment, if any, was
voluntary, or by some act of interruption on the part of the
land-owner, or was the result of accident or causes which the
party claiming the right could not control, and not with any
intent to abandon a right to the same.^
Coke, quoting Bracton, says : " Continuam dico ita quod
non sit legitime interrupta." ^ Whatever breaks the con-
tinuity of the possession and enjoyment of an easement,
whether by a cessation to enjoy it, or by any act of the own-
er of the servient tenement, destroys altogether the
*efrect of the previous user, and this is an interrup- [*102]
tion within the meaning of the (Massachusetts} stat-
utes.^
In the case of Pollard v. Barnes, the claim was of a right
to pile boards upon another's land. It had been enjoyed
from 1822 to 1846, except from the years 1829 to 1834, dur-
ing which no such use was made of the land. And it was
held to be a voluntary interruption which destroyed the con-
tinued enjoyment of the right for twenty years.*
1 Pollard V. Barnes, 2 Cush. 191 ; 2 Washb. Eeal Prop. 46.
" Co. Litt. 113 b. The entire passage from Bracton is as follows: "Nunc
autem dicendum qualiter transferuntcr sine titulo, et traditione per usucaptionem,
s. per longain, continuam, ct pacificam possessionem, ex diuturno tempore et
sine traditione : scd quam longa esse debeat, non definitur a jure, sed ex justitia-
riorum discretione. Continuam dico, ita quod non sit interrupta ; interrupi enim
poterit multis modis, sine violentia adhibita, per denuntiationem et impetratio-
nem diligentcm, ^t diligentem prosequutionem, et per talem interruptionem
nunquani acquiret possidens, ex tempore, liberum tencmentum. Pacificam dico
quia si contentiosa fuerit, idem erit quod prius," &c. — Bract., fol. 51, 52.
^ Pollard V. Barnes, 2 Cush. 191.
* Ibid. 191 -199.
142 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
In Watt V. Trapp, the party claiming a right of way passed
over the land in 1819, and then again in 1824 and 1825, and
continued passing to 1843. But it was held not to be a con-
tinuous use except from 1824.^
In Dana v. Valentine, the easement claimed was the right
to carry on an offensive trade in the claimant's buildings,
which had stood more than twenty years, and in which he
had carried on the business for eighteen years uninterrupt-
edly ; and it was held that the mere suspension of the busi-
ness for two years, where there had been no interference
with the enjoyment of the right, was not an interruption
which should affect the right, unless done with an intent to
abandon the business and not resume it. The intention, in
such a case, becomes a material inquiry .^
A ready illustration would present itself to the mind
where, from analogy to the above cases, there would seem
to be no want of continuity, although the easement was but
rarely used. Suppose a man had been accustomed to go
across another's land to a meadow, once a year, for the pur-
pose of cutting and bringing away the grass growing there-
on, and had continued this for twenty years or more under
a claim of right, it would be sufficient, it is believed, to ac-
quire thereby an easement of way for that purpose.
[*103] *Nor would this right be affected by the long inter-
vals between the times of the user.^
In Wood !■!. Kelly, the easement claimed was a right to
flow land, but the flowing had been suspended during the
time in which the owner of the dam was repairing it. It
was held not to be such an interruption to the continuity of
the user and enjoyment as to affect the right. So it would
be if the stream were at times too low, by reason of a
drought, to operate his mill.^
1 Watt V. Trapp, 2 Rich. 136.
2 Dana v. Valentine, 5 Mete. 8, 13.
8 Carr v. Foster, 3 Q. B. 581.
* Wood V. Kelly, 30 Me. 47 ; Gerengcr v. Summers, 2 Ircd. 229. See Win-
nipiseogce Co. v. Young, 40 N. II. 420.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCEIPTION. 143
Where a party maintained a dam, and raised the water of
his pond to the hciglit of his dam, whenever tlie water was
high enough in the stream, and continued tliis more than
twenty years under a claim of right, it was held that the
height of his dam fixed the extent of his easement or right
of flowing, although, at times, the water of the pond was
below the top of the dam.^
In Cuthbcrt v. Lawton, the court, in speaking of a right of
way wliich was claimed by user, say : " If it had only begun
to accrue, the obstruction of one year in twenty would pre-
vent its legal consummation ; but after twenty years of un-
interrupted use, it could only be defeated by an adverse and
continued obstruction, for," &c.^
It seems to be an unqi^estioned proposition, that a mere
succession of acts of trespass will not give the trespasser
sucli possession as to gain for him a prescriptive right.^
51. And the language of the court in Olney v. Gardiner,
given by way of illustration, presents the proposition in a
clear light : " For instance, if the occupier had used the
road openly for a year or two, and then uniformly asked
permission on each occasion, or only used it secretly and by
stealth for some years, and then resumed the enjoyment of
it, no one would pretend that a grant could have been pre-
sumed, because the intervals of enjoyment united might
amount to twenty years. A similar reason applies to inter-
vals of unity of possession, during which there is no one who
could complain of the user of the road." *
Whether there has been an interruption to the
enjoyment *of what is claimed as an easement, is a [*104]
question for the jury. To bring it within the mean-
ing of the statute of 2 <fe 3 William IV. c. 71, it must be an
interruption caused by an obstruction of some otlier person,
and not a mere cesser to use the right. Where actual en-
1 Winnii)iseogce Co. v. Young, 40 N. H. 436 ; post, p. *I05.
2. Cuthbert v. Lawton, 3 M'Cord, 195.
3 Cooper r. Smith, 9 Serg. & R. 34.
* Olney v. Gardiner, 4 Mees. & W. 500.
144 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
jojment is shown before and after the period of intermission,
it may be inferred from that evidence that the right contin-
ued during the whole time. How many times the right has
been exercised is not the material question, if the jury are
satisfied that the claimant of the right exercised it as often
as he chose. There must be some overt act indicating that
the right is disputed.^
52. Questions often arise, especially in respect to ease-
ments in the use of water, in consequence of changes made
in the mode and extent of user and enjoyment. And the
rule seems to be this : while the law does not require the
use to be, in all respects, identical and the same, both in
manner and extent, in order to gain an easement ; any ma-
terial change in these respects^ while the right is being
gained by prescription, may defeat the same. If it shall
have been actually gained, a mere failure to use it to the
extent to which the right has been acquired will not affect
such right.
Thus, where one had enjoyed the use of a drain from his
land over ^that of another for more than twenty years, but
during the twenty years it had been materially changed in
its size, direction, and termination, it was held that no right
had thereby been gained. In order to acquire an easement
in such drain, there must have been an enjoyment of it
twenty years after such change had been made.^
[*105] *So where one flowed the land of another, by a dam
of a certain height, for ten years, and then increased
its height, and thereby flowed additional land for ten years
more, it was held that he had thereby only acquired an ease-
ment to flow the parcel which was flowed by the original dam.^
1 Carr v. Foster, 3 Q. B. 5S1. See Lane v. Carpenter, 6 Exch. 825 ; "Winship
V. Hudspeth, 10 Exch. 5, The following cases bear upon the same subject of
the continuity of enjoyment requisite to acquire an casement, and are cited for
the purpose of convenient reference. Esling v. Williams, 10 Penn. St. 126;
Ingraham v. Hough, 1 Jones, No. C. 39 ; Battishill v. Reed, 18 C. B. 696.
■^ Cotton V. I'ocasset Mg. Co., 13 Mete. 429 ; Stein v. Burden, 2-t Ala. 130.
8 Baldwin o. Calkins, 10 Wend. 167; Morris v. Commander, 3 Ired. 510;
Wiiitticr V. Cocheco Mg. Co., 9 N. H. 454 ; Gercuger v. Summers, 2 Ired. 229 ;
Wright V. Moore, 38 Ala. 598.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 145
53. But where the locality of the dam by which the flow-
ing is caused is not material, the prescriptive right to flow
may be acquired, if continued the requisite length of time,
though the place of the dam, or that of using the water, be
changed, provided it be used for the same purpose during tho
requisite time.^
Nor is it necessary that the water should have been used
in the same precise manner during tli« twenty years, or
applied to propel the same machinery. All that the law
requires is, that the mode or manner of using the water
should not have been materially varied to the prejudice of
others.^
54. But it is not always easy, in case of flowing lands by
means of artificial dams, to fix a precise limit to what has
been enjoyed for the requisite period of time to establish a
prescriptive right. The state of the water in most streams
is constantly varying, and the condition of the dam, as to its
capacity to pen it back, is often affected by the state of repair
in which it may be. As a general rule, the height of the
dam fixes and limits the extent of the right to flow. By
height of a dam, as thus used, is meant its height when
completed and finished, with its rolling dam, waste-ways,
&c., in good repair and condition, without regard to the
height of other parts of the structure, which have no opera-
tive effect in causing the water to flow back. When,
*therefore, one has acquired a prescriptive right to [*106J
maintain a dam which, in its usual operation, would
raise the water to a given height, and has used it at his
pleasure at that height, without the claim of any other
person to have it drawn or kept down, he has a right to
retain it at the same height, although, from the former leaky
condition of the same, the construction of the machinery, or
1 Davis V. Brigham, 29 Me. 391 ; Stackpole v. Curtis, 32 Me. 383, 385 ;
Whittier v. Coclieco Mg. Co., 9 N. H. 454, 458.
2 Belknap v. Trimble, 3 Paige, 577 ; Bullen v. Kunnels, 2 N. H. 255; Whit-
tier V. Cocheco Mg. Co., 9 N. H. 454.
10
146 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
lavish use of the water, the water in the pond is not, in fact,
constantly or usually kept at that height ; and he would not
be liable for rendering his dam tight, or using the water in a
different mode, though he thereby constantly flows more land
than he liad hitherto usually done.^
The proposition that the extent of the right to flow is
determined by the height of the dam, is limited by the
courts of New Han^pshire, so that, though the owner of the
dam may maintain it at the height to which it has been kept
by twenty years user, the easement of flowing by it is fixed
not by the height of the dam but by the limits and extent
of the user of the water itself. " The same proof of user
which establishes the right, is equally conclusive in estab-
lishing the limitations of that right." ^
In New York, the court recognizes the doctrine of Cowell
V. Thayer as law, and applied it to the case of using flash-
boards upon a dam for the purpose of retaining the water in
seasons when it was low. Having acquired a right to do
this, the owner of the dam was at liberty to raise his dam to
the height of the flash-boards by a permanent structure,
provided he did not flow it any higher, or for a longer time
in the year, than he had done by the flash-boards.^ And in
another case the mill-owner was held liable for keeping up
the water a longer time in the year than he had done by his
flash-boards, although he had not erected his dam any
higher than his flash-boards had been kept, nor any higher
,than he had a right to raise it. And he would be liable, also,
if by such a dam he flowed more land than the dam with its
flash-boards had done, when in good and suitable repair.
And if the owner of the dam, or his predecessors, have in
fact enjoyed and exercised the right of keeping up his dam
1 Cowell I'. Thayer, 5 Mete. 253, 258; Alder v. Savili, 5 Taunt. 454; Vick-
erie i\ Ruswell, 13 Me. 289 ; Ray v. Fleteher, 12 Cush. 200 ; Lacy v. Arnett, 33
Penn. St. 169 ; Bliss v. Rin, 17 Pick. 33. Marcly v. Shultz, 29 N. Y. 354.
2 Burnham v. Keinpton, 44 N. IL 90. Sec also Smith v. Ross, 17 Wise. 227 ;
ante p. *103.
8 Ilynds V. Shultz, 39 Barb. GOO ; Marcly v. Shultz, 29 N. Y. 352.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 147
and flowing the land of another, for a period of twenty years,
without paying damages therefor, or any claim or assertion
of a right to damages for such flowing, it is in itself evidence
of a prescriptive right to continue such flowing.^
55. Though no mere temporary suspension of flowing to
any particular height by reason of failing to keep up a head
of water in an artificial pond, by the lavish use of the same,
or by a want of repair x)f the dam, would prevent the owner
from exercising the right to flow to its original height, which
lie may have acquired by prescription, by restoring the dam
to ^s original condition, it would seem that, in acquiring the
right by use and enjoyment, reference is had to the actual
extent to which the flowing has been exercised during the
twenty years, rather than to the form or height of the dam.
Thus, where A had flowed B's land for more than twenty
years to a certain height, during all which time his dam
was leaky, and at the end of that period he repaired and
tightened the same without increasing its height,
*whereby he set back the water upon B's land to a [*107]
greater extent than had been done during the twenty
years, it was held that he was responsible in damages for this
excess in flowing B's land.^
56. Nor may the nature of the use be changed from that
by which the prescription may be gained. The flow of the
water, if it be a watercourse which is the subject of the pre-
scription, must remain substantially the same, both as to
quantity and rapidity of the current, as it had been during
the period in which the easement was acquired. Thus, if a
man shall have acquired a right to turn water through an
artificial trench across another's land for purposes of irriga-
tion, and to enter and clear the same, he would not have a
right to convert the same trench into the tail-race of a mill,
and to widen and deepen it for that purpose. So he may
1 Williams v. Nelson, 23 Pick. 141 ; Perrin v. Garfield, 37 Verm. 310; Brace
V. Yale, 10 Allen, 443.
2 Mertz V. Dorney. 25 Penn. St. 519.
148 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
not change the use of the trench by increasing the quantity
flowing tln'ough the same.^
57. And in considering further how far a change in the
mode of using an easement, while in the process of acquiring
it by use and enjoyment, will defeat the necessary continu-
ity, it may be stated in general terms, that, while a way, for
instance, must be used in the same course and direction
without change or variation, — not in one place to-day and
in another to-morrow, — every immaterial change in this
respect ought not to be construed into a destruction of its
identity. In determining this, regard ought to be ha^to
the situation of the country and habits of the people in re-
spect to public ways, in a new country, for instance. And
something of the sort might be allowed in a private way
without destroying a prescriptive right ; such as changing
a road between two points for the purpose of straightening
it for the convenience of the parties, the way being kept
open and used all the time.^ But a prescriptive right of
way, whether public or private, cannot be gained to pass
over land generally, it must be confined to a specific line of
travel.^
[*108] *58. As prescriptions are often partly personal
and partly incidental to the possession of an estate,
it sometimes becomes a question whether the death of a
party, or his ceasing to own or occupy the estate with which
the easement is connected, operates as such a break in the
continuity of enjoyment as to defeat the prescription. In
other words, what is the effect upon an inchoate prescription
for an easement of the death of either of the parties, or the
ceasing by one to own or to occupy the dominant or servient
estate ? And, first, if such death or ceasing to own or oc-
cupy is on the part of the one exercising the acts of ease-
ment. Where a user and enjoyment of an easement has
1 Darlington v. Tainter, 7 Penn. St. 473 ; ante, p. 53.
2 Lawton v. Rivers, 2 M'Cord, 445.
( 8 Gentleman v. Soule, 32 111. 278 ; 3 Kent, p. *419. See Gage v. Pitts, 8 Allen,
527.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 149
been begun by an ancestor for tlie benefit of an estate which,
upon his death, descends to his heirs, and the use is con-
tinued by the heir so long that the two periods united will
be equal to twenty years' adverse enjoyment, the prescription
will be complete. The same would be true in case of vendor
and vendee, or any person claiming as privy in estate with
a previous occupant, provided the enjoyment were continu-
ous though no mention is made in the deed of the easement.^
But if there is an actual break or interruption in the occu-
pancy or user, a new occupation or user would be the com-
mencement of a new period of prescription. Nor can the
time of one adverse enjoyment be united with that of a
second, who does not claim under the first by privity of
estate.^
69. Thus, where successive persons had flowed another's
land for a period exceeding twenty years, it was held that,
in order to gain a prescriptive right to do this, the flowing
must have been continued for twenty years by the same
person, or some one under whom he claims title. And if it
be done by a succession^of persons, each of whom has acted
independently of any right acquired from his predecessor, no
one of them will thereby have acquired an easement
or prescription in his favor. So if one of *successive [*109]
owners, who have enjoyed the right claimed for
twenty years, had done so by permission of the owner of the
servient estate, it would prevent the twenty years' enjoyment
creating a prescriptive right.^
60. So where the owner of the dominant estate used a way
for two years, and then, after some years' interval, sold his
1 Leonard v. Leonard, 7 Allen, 277; Kent v. Waite, 10 Pick. 138; Hill v.
Crosby, 2 Pick. 466; Sargent v. Ballard, 9 Pick. 251; Williams v. Nelson, 23
Pick. 142.
2 Sargent v. Ballard, 9 Pick. 251 ; Melvin v. Whiting, 13 Pick. 184 ; 3 Kent,
Comm. 444, 445 ; M'Farlin v. Essex Co., 10 Cush. 304 ; Inst. 2, 6, 8 ; Okeson v.
Patterson, 29 Penn. St. 22. Tracy v. Atherton, 36 Verm. 503.
3 Benson v. Soule, 32 Me. 39 ; Winship v. Hudspeth, 10 Exch. 5 ; Perrin v.
Garfield, 37 Verm. 309.
150 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
estate to one who used it for eighteen years, it was held not
to give a prescriptive right by what the law considers an
uninterrupted and continuous use.^
61. So if the owner of the dominant estate were to become
the occupant of the servient estate, by a lease from the
owner thereof, during the twenty years of his using and
enjoying the easement claimed, it would so break the con-
tinuous adverse enjoyment as to defeat a prescription there-
for.2
In one case the owner of land upon one side of a stream
leased it for thirty-four years to the owner or tenant of the
land upon the opposite side. The lessee then went on and
erected a dam above the plaintiff's land, and thereby raised a
head of water, and by a canal dug therefrom to works erected
upon the side opposite the plaintiff's land, and thereby
diverting the water from the bed of the stream, created a
large manufacturing establishment thereon. About the time
of the expiration of the lease, the lessor conveyed his land
to the plaintiff, who, after a few years, sought to enjoin the
defendant from diverting the watef of the stream from its
former channel and the plaintiff's land. It was held that
this enjoyment of the diversion being under a lease, where
the owner of the land could not interfere, was not, in law,
adverse, and gave the lessee no right to continue it after
such lease had expired. Nor was the land-owner estopped
by standing by and seeing the defendant incur heavy charges
in constructing his works, inasmuch as he had no right to
interfere by way of assent or dissent with the erection of the
works. And the injunction was granted, though the effect
of restoring the stream to its original watercourse and the
plaintiff's land, was to destroy the defendant's works.^
62. So where there were two adjacent estates, and the
owner of the one had charge of the other, as agent of the
1 Kilburn v. Adams, 7 Mctc. 3.3.
2 Clay V. Thaokrali, 9 Carr. & P. 47 ; Olney v. Gardiner, 4 Mccs. & W. 496 ;
Holland v. Long, 7 Gray, 486.
., 8 Corning v. Troy Iron, &c. Co., 39 Barb. 311 ; s. c, 22 IIow. Pr. Cas. 217
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 151
owner, which was occupied by a succession of tenants for
short periods of time, amounting to twenty years, it was held
that no casement was gained by the owner of the second
estate, by user of a way over the other, while such second
estate was in possession of these successive tenants; — 1st,
because, having charge of both, it could not be treated as
adverse ; and 2d, because, 'these successive tenants not being
in privity with each other, there could be no continued
adverse enjoyment as against the servient estate.^
63. One owning land upon one side of a highway occupied
a parcel, for piling lumber, upon the opposite side of the
way, for the space of two years, by an arrangement with the
owner by which he was to purchase the same, and in the
mean time was tenant at will of the parcel. At the
*end of the two years he sold his land to a third [*110]
party, who continued to occupy that on the opposite
side of the road for the next eighteen years. It was held
that here had not been an adverse possession for twenty
years, since, during the first two, the occupancy was not
adverse ; and, besides, the possession of a tenant at will was
not assignable, so that the purchaser could avail himself of
the benefit of it.^
64. On the other hand, if the owner of the servient estate
die during the period of twenty years' enjoyment by the
dominant estate, leaving only minor heirs, it is held by some
courts to be an interruption to the prescription, so long as
such minority remains. But it would not so far defeat it
but that, if the user were continued long enough after the'
minor heirs became of age to make the period before the
ancestor's death and that after the minority of the heirs had
ceased together equal to twenty years, it would make a good
prescription.^
1 HoUand v. Long, 7 Gray, 486.
2 Plumer v. Brown, 8 Mete. 578.
3 Melvin V. Whitino:, 13 Pick. 184, 188; Watkins v. Peck, 13 N. H. 360;
Lamb v. Crosland, 4 Rich. 536. See Arbuckle v. Wood, 29 Vt. 43, where the
exception of minority of the heirs is not alluded to by the court, and post,
pi. 73.
152 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
65. As a general proposition, as will hereafter appear, an
easement cannot be acquired by prescription against a re-
versioner of the servient estate, by use and enjoyment during
the occupation thereof by a tenant ; yet if the use be begun
adversely to. the owner of the servient estate, and he part
with his possession thereof to a tenant, such possession by
the tenant will not operate as an interruption to the acqui-
sition of a prescriptive right to such easement, if the enjoy-
ment thereof is continued. ^
And it may be added, that, unless the acts of prescription
operate against all persons having estates in the premises,
the party exercising them gains thereby no prescriptive
rights against the tenant or any one. Thus, where one has
used a right of way adversely to a tenant for years
[*111] or for *life, for more than twenty years, inasmuch as
it did not affect the right of the reversioner, it did not
operate to create any prescriptive right against the tenant.^
By a recent English statute one tenant for years may gain
an easement of light against another tenant for years, after
an adverse enjoyment of twenty years, though both tenants
hold by simultaneous leases from the same landlord.^
66. In the next place, to gain a prescriptive right to the
use and enjoyment of any easement by a long continuance
of the same, it must have been done with the knowledge
and acquiescence of him who was seized of an estate of in-
heritance as owner of the servient estate.^
The maintaining of a mill-dam is such an act of notoriety,
•that the law will presume a knowledge of it on the part of
the land-owner living near it.^
1 Cross V. Lewis, 2 Barnew. & C. 686. See Pearsall v. Post, 20 Wend. Ill ;
Bright V. Walker, 1 Croinpt. M. & R. 211 ; post, pi. 70. McGregor v. Wait, 10
Gray, 75.
2 Bright V. Walker, 1 Crompt. M. & R. 211 ; Tud. Lead. Cas. 118.
8 2 & 3 Wm. 4, 671 ; Frcwen v. Phiiipps, 11 C. B., n. S. 449.
f * Bradbury v. Grimsel, 2 Saund. 175 J; Daniel v. North, 11 East, 372; In-
graham V. Hough, 1 Jones, No. C. 42 ; La. Civ. Code, Art. 727 ; ante, sect. 4,
pi. 4.
& Pcrrin v. Garfield, 37 Verm. 311.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 153
67. What shall constitute the evidence of such knowledge
and acquiescence depends upon the circumstances of the
case. The language of the court in Blake v. Everett is this :
" There need not be a claim of right to the way in words, or
an admission by the owner of the land in words, that he
knew of the adverse use and claim of right : twenty years
of adverse use, continually and uninterruptedly, with the
knowledge and acquiescence of the owner of the land, in the
absence of any evidence of permission and license, is suffi-
cient praof of the existence of such easement."^
The court, in Beasley v. Clarke, which was a case under
the statute 2 & 3 William IV. c. 71, § 5, held that, to a
plea of a right of way by user, <fec., " the plaintiff is at
liberty to show the character and description of the user and
enjoyment of the way during any part of the time ; as that
it was used by stealth or in the absence of the occupier of the
close, and without his knowledge ; or that it was merely a
precarious enjoyment by leave and license, or any other cir-
cumstances which negative that it is an user or enjoyment
under a claim of right." ^
And in Solomon v. Vintners' Co., Bramwell, B. says:
" It was an enjoyment clam, not open, and consequently not
as of right." 3
This doctrine was applied in the case of a drain con-
structed by the owner of two or more houses which he
afterwards conveyed to different purchasers, and the drain
remained more than twenty years, but was not known by
the owner of either house to exist. It was held that such
an enjoyment of the drain did not give the upper estate a
right to maintain it through the lower one as a prescriptive
easement.^
1 Blake v. Everett, 1 Allen, 248 ; Gray v. Bond, 2 Brod. & B. 667 ; Smith v.
Miller, 11 Gray, 148.
2 Beasley v. Clarke, 2 Bing. N. C. 705 ; Tickle v. Brown, 4 Adolpli. & E. 369.
8 Solomon v. Vintners' Co., 4 Hurlst. & N. G02.
* Carbrey v. Willis, 7 Allen, 368.
154 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
[*112] *And Putnam, J., in Sargent v. Ballard, quotes
the words of Bracton : " Possessio per longura con-
tinuum et pacificum usum, sine consensu express©,
per patentiam veri domini, qui scivit et non proliibuit, sed
permisit de consensu tacito," — " It must be with the knowl-
edge and permission of the owner, and not merely of the
tenants." ^
68. The maxim is, " Ita quod, nee per vim, nee clam, nee
precario."^
If, therefore, it should appear that, during the period of
the alleged acquisition of an easement by use and enjoy-
ment, the owner of the servient tenement resisted such
claim, or opposed such "use, it would negative the claim.
It was accordingly held that a prescriptive right to divert
water from a stream could not be acquired by an enjoyment
for the requisite period, where it appeared that the party,
against whom it was claimed, during that time remonstrated
against such diversion, and consulted counsel for a prosecu-
tion therefor.^
Thus where, though one had flowed another's lands for
more than twenty years, it appeared that the latter had com-
plained thereof, and denied his right so to do, it was held
that it rebutted the presumption of its having been enjoyed
under a grant.*
So in Powell v. Bagg, the defendant claimed an easement
of an aqueduct across the plaintiff's land, by an enjoyment
for the term of thirty-eight years, which he proved. It was
held that, if the owner of the land, being upon it, forbade
the other party to enter upon the land, and make use of the
aqueduct, it was enough to prevent his acquiring an ease-
1 Sargent v. Ballard, 9 Pick. 251 ; Bract. 52 b. c. 23, §1- Edson v. Munsell,
10 Allen, 567.
2 Bract., fol. 222 ; D. 39, 3, 23; Co. Litt. 114 a ; Eaton v. Swansea Water-
works Co., 17 Q. B. 267. Per Bramwdl, B., Solomon v. Vintners' Co., 4 Hurlst.
& N. 602.
3 Stillman v. White Rock Co., 3 W. & Min. 549. See Bcaly v. Shaw, 6 East,
216.
* Nichols V. Aylor, 7 Leiyh, 54G, 565.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 155
mcnt by such use and enjoyment. Nor was it necessary, in
order to defeat such a claim, that the land-owner should
show that he resisted the claimant by acts of violence or
force to eject him. To have one gain an easement, it not
only must be claimed adversely, but it must be acquiesced
in by the owner of the land, under a claim of right. And if,
before the expiration of twenty years from the time the
right was first claimed, the owner of the land, by a
verbal *act on the premises in which the easement is [*113]
claimed, resists the exercise of the right, or denies
its existence, the presumption of grant is rebutted, liis acqui-
escence is disproved, and the essential elements of a title to
an easement by adverse use are sho'wn not to exist. In this
respect there is a material difference between an actual dis-
seizin of lands, where the disseizor continues in possession,
and an easement ; for in the latter case the owner of the
land remains in possession, and there is no disseizin, and the
title to the easement rests chiefly on an acquiescence in an
adverse use.^
So in the case of Eaton v. Swansea Waterworks Co.,
above cited, it was held that, to gain an easement, it must
have been enjoyed without contention or resistance by the
owner of the land : " It seems clear that, if the enjoyment
is clandestine, contentious, or by sufferance, it is not of right.
Enjoyment of a right must be nee clam, nee vi, nee precario.''^
And it was accordingly held that, where the servant of one
claiming an easement to draw water was prosecuted for ex-
ercising that right, and the master paid the penalty, without
appealing, it was competent evidence to prove that he had not
enjoyed it as a matter of I'ight for twenty years.^
And in another case, where one had used a way over
twenty years, but it appeared that it had always been a sub-
ject of contention, it was held that the jury were justified
1 Powell V. Bagg, 8 Gray, 441. See Ingraham v. Hough, 1 Jones, No. C. 39.
Tracy v. Atlierton, 36 Verm. 514.
2 Eaton V. Swansea "Waterworks Co., 17 Q. B. 267, 269.
156 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
in negativing a prescriptive grant. " Nothing but an unin-
terrupted usage can raise a presumption of a grant." ^
69. Another essential circumstance in the use and enjoy-
ment of an easement, in order to gain thereby a prescriptive
right to the same, is that, while it was thus being gained,
the owner of the servient estate was able, in law, to assert
and enforce his rights, and to resist such adverse claim, if
not well founded.
[*114] *No presumption of grant, therefore, arises from
adverse enjoyment against a feme covert or a minor ,2
or an insane person, ^ nor would the admission of a feme co-
vert that such grant existed be admitted as evidence against
her.4
But where a female minor married after the period of ad-
verse enjoyment had begun to run, it was held that such
second disability is disregarded in determining the question
of a prescriptive right thus acquired.^
This involves the effect of the servient estate being in the
occupation of a tenant, or the owner thereof being a minor
during all or a portion of the alleged period of prescription.
70. In addition to what has already been said, it may be
stated, with few if any qualifications, that neither a remain-
der-man nor a reversioner can be affected by any use or
enjoyment of an easement in or overi^the servient estate, by
way of thereby creating a prescriptive right in respect to the
same, while his land is in the possession and occupation of a
tenant for life or years.^
1 Livett V. Wilson, 3 Bing. 115. Smith v. Miller, 11 Gray, 148.
2 Watkins v. Peck, 13 N. H. 360 ; Melvin v. Whiting, 13 Pick. 184; Reimer
V. Stuher, 20 Penn. St. 4.58, 463. See Mebane v. Patrick, 1 Jones, No. C. i26 ;
3 Toullier, Droit Civil Fran9ais, 418, 419 ; Merlin, Repertoire de Jurisprudence,
tit. Prescription, Sect. 1, ^ 7, Art. 2 ; Lalaure, Traite' des Servitudes Re'elles, 34 ;
ante, sect. 3, pi. 1.
8 Edson V. Miinscll, 10 Allen, 557.
* M'Gregor v. Wait, 10 Gray, 74.
'' Reimer i>. Stuber, 20 Penn. St. 458, 463 ; Schenley v. Commonwealth, &c.,
36 Penn. St. 29.
6 Bradbury v. Grimsel, 2 Saund. 175 c? ; Daniel v. North, 11 East, 372 ; Par-
ker V. Framingham, 8 Mete. 260 ; Pierre v. Fernald, 26 Me. 436 ; Blanchard v.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION, 157
In the case of Daniel v. North, there is a doubt expressed
as to the effect upon the rights of the reversioner of an en-
joyment of an easement for twenty years in an estate while
in a tenant's hands, if the reversioner had been cognizant
thereof. But the case of Barker v. Richardson, as well as
the reasoning of the court in Daniel v. North, seems to settle
the point^that no adverse enjoyment of an easement by a
dominant over a servient estate can affect the rights of the
reversioner, though enjoyed adversely by the owner
of the *former, if the latter were in the possession of [*115]
a tenant for life during such adverse enjoyment.
The reason of this is, that a prescription operates only
against one who is "capable of making a grant." And a
tenant for life cannot make a grant which shall affect the
estate, when it shall come into a reversioner's hands. ^
In Wood V. Yeal, the premises over which a way was
claimed, by adverse use and enjoyment for a long space of
time, — longer, in fact, than human memory, — had been
during this time in the possession of a tenant for ninety-nine
years, which had then recently expired, and it was held that
no right was thereby gained against the owner of the inher-
itance.^
But, as already stated, it would seem that if, after such
adverse use and enjoyment had begun by the owner of the
dominant estate, the owner of the servient estate should part
with his possession to a tenant, and the same should con-
tinue to be used as before, an easement might be gained by
prescription after twenty years' enjoyment.^
Bridges, 4 Adolph. & E. 176 ; Barkers. Richardson, 4 Barnew. & Aid. 579;
Bright V. Walker, 1 Crompt. M. & R. 211 ; Baxter v. Taylor, 4 Barnew. & Ad.
72; Reimcr I'. Stiiber, 20 Penn. St. 4.58; Schenley v. Commonwealth, &c., 36
Penn. St. 29; Tud. Lead. Cas. 116; Runcorn v. Doe, 5 Barnew. & C. 696;
ante, sect. 3, pi. 32.
1 Barker v. Richardson, 4 Barnew. & Aid. 579. See Davies v. Stephens, 7
Carr. & P. 570; Merlin, Repertoire de Jurisprudence, tit. Prescription, Sect. 1,
§ 7, Art. 2, Qiies. 13 ; McGregor v. Waite, 10 Gray, 75.
2 Wood V. Veal, 5 Barnew. & Aid. 454.
2 See Cross v. Lewis, 2 Barnew. & C. 686 ; Mebane v. Patrick, 1 Jones, No.
C. 23.
158 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
But, for various reasons, if the owner of the dominant es-
tate becomes himself a tenant of the servient estate, no en-
joyment of an easement during such unity of possession could
be adverse, or lay the foundation for a prescription. ^
71. On the other hand, though it is clear that a tenant for
life of a dominant estate may acquire an easement in a ser-
vient one by adverse enjoyment, it does not seen# to be set-
tled whether it would, when acquired, enure in favor of him
who has the inheritance by way of re version. ^
But though in the above-cited case the court avoid the
question, it would seem that, if the tenant held by
[*116] lease *from the tenant of the fee of the dominant es-
tate, an easement gained by such a holding by the
tenant would enure to the landlord's benefit, in analogy with
the doctrine of a class of cases which hold that, if a tenant by
disseizin extends his holding over a neighboring parcel of
land till a prescriptive title is gained, it will enure to the
benefit of his landlord.^
72. But in respect to the principal proposition, it may be
stated that, if an easement is claimed by an adverse enjoy-
ment, with the knowledge of the owner of the servient es-
tate, it must be while he or those under whom he claims
have the absolute ownership thereof. And if it shall have
begun while the premises were in the possession of one hav-
ing a particular estate therein, which may have continued
for any part of the time it was enjoyed, so much thereof is to
be deducted, and there must have bemi twenty years of such
enjoyment, exclusive of the period for which the tenant of
the particular estate thus held possession.^
But it is said by Bell, J., in Wallace v. Fletcher,^ that
" the tenant for life or years may grant easements or permit
them to be acquired by user, and they will be valid against
1 Clay V. Thackrali, 9 Carr. & P. 47.
2 Holland v. Long, 7 Gray, 487.
3 Andrews v. Ilailcs, 2 Ellis & B. 349, and cases therein cited.
* Tearsall v. Post, 20 Wend. Ill ; La. Civ. Code, Art. 725.
6 Wallace v. Fletcher, 10 Foster, 453.
Sect. 4.] ACQUIKING EASEMENTS BY PRESCRIPTION. 159
himself and those who hold his estate during its continuance,
and perhaps not after\Yards, where the reversioner had pre-
viously neither cause nor right to complain."
But it would seem that, if the servient estate be in the
possession of one having a conditional or determinable fee
in the same, a servitude may be gained against him, which
would be defeated if afterwards the estate of the servient
tenant fails.^
73. The effect of the death of the owner of the servient
estate before an easement shall have been acquired by the
requisite period of enjoyment, has been somewhat antici-
pated. There would ordinarily be no difficulty in fixing the
rule to be applied in such cases, if the heir who succeeded
to the ancestor were of age, and suffered the use and enjoy-
ment to be continued till it had extended to the period of
prescription.
But if the heir were at the time under a disability like
that of being a minor, it is held by writers iipon the French
law, as well as by some of the American courts, that
during the period *of his minority the prescription is [*117]
suspended. Thus if, after five years' adverse enjoy-
ment against the owner of an estate, he dies, and it comes
by descent to a minor heir of the age of five years, it would
require a continued enjoyment against this heir of thirty-one
years before the easement could be gained by adverse use,
the law allowing the owner of the dominant estate to add
the period of enjoyment during the ancestor's life to that
while the heir is tenant, after his arriving at the age of
twenty-one.^
The identity of the doctrine above stated with that of the
French law will be perceived by the following quotation from
Merlin, Repertoire de Jurisprudence : " Au surplus, remar-
quez que, dans les cas oii la prescription temporaire ne court
1 3 Toullier, Droit Civil Franyais, 419.
• 2 Lamb v. Grassland, 4 Rich. 536 ; Watkins v. Peck, 13 N. H. 300; Melvia v.
Whiting, 13 Pick. 184.
160 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
pas centre les mineurs, la miiioritd de I'lieriter suspend Men
la prescription commencde contre le defunt, mais n'empeche
pas qu'on ne joigne au temps durant lequel on a possedd
contre celui-ci, le temps qui a suivi sa majorite." ^
The same writer remarks further, that a prescription which
does not run against a minor will not, upon the same prin-
ciple, run against his heir during his minority .^
The rule, as stated in the Civil Code of Louisiana, is this :
" It is not sufficient to be an owner in order to establish a
servitude : one must be master of his own rights, and have
the power to alienate. Thus minors, married women, per-
sons interdicted, cannot establish servitudes on their estates,
except according to the forms prescribed for the alienation
of their property." ^
[*118] *73 a. On the other hand, some of the American
courts hold that the analogy between the doctrine of
a presumed grant from twenty years enjoyment and the stat-
ute of limitations is so strong that, inasmuch as there is no
exception in favor of infants, insane persons, and women
under coverture in the latter, unless the disability exists
when the statute begins to run, there should be none in the
acquisition of an easement by lapse of time, except under the
same circumstances. That the exception in the statutes of
limitations is thus qualified is settled in the cases cited be-
low.*
Gray J., in Edson v. Munsell, has examined the law in an
exhaustive manner, upon the effect of the disability of insani-
ty of the owner of the servient estate when the adverse posses-
sion began, and shows clearly that no length of enjoyment can
1 Merlin, Repertoire de Jurisprudence, tit. Prescription, Sect. 1, § 7, Art. 2.
Qucs. 2.
2 Ibid.
3 La. Civ. Code, Art. 727 ; see Code Nap., Art. 2252.
* Mebane v. Patrick, 1 Jones, N. C. 23 ; Ailis v. Moore, 2 Allen, .306 ; Currier v.
Gale, 3 Allen, 328 ; Edson i\ Munsell, 10 Allen, 557 ; Dekay v. Danick, 2 Green,
N. J. 294; Ilcinicr v. Stuhcr, 20 Penn. 463; M'Farland v. Stone, 17 Verm. 174;
Tracy v. Atherton, 36 Verm, ."in ; Wallace v. Fletcher, 10 Foster, 454.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. IGl
give a prescriptive riglit of easement thereon, however open
and adverse it may he. The easement claimed in that case
was an aqueduct which had hecn enjoyed forty-three years un-
interruptedly. But as the owner of the land was all the
time insane, it was held that no right had thcrchy hccn ac-
quired. In two of the other cases cited, the disability was
insanity, which began after the statute had begun to run, and
in another the disability was coverture, assumed after such
commencement of the running of the statute. The reason-
ing of the court, in Watkins v. Peck, seems to sustain the idea
that no deed can be presumed to have been given, in accord-
ance with the tlieory of modern prescription, unless the owner
of the land against whom it is claimed has been of ability to
give it or to resist the user of the easement, during the whole
and every part of the twenty years, and that prescription is
not like the statute of limitation, an arbitrary and technical
rule of law. Thus the C. J. in that case says : " We are of
opinion that no grant can be presumed from an adverse use
of an easement in the land of another for the term of twenty
years, where the owner of the land was, at the expiration of
the twenty years and long before, incapal^le of making a
grant, whether the disability arose from infancy or insanity."
" Perhaps a disability intervening during the lapse of the term
but not extending to the termination of the period of twenty
years, might not be sufficient to rebut the presumption ; but
it would be absurd to presume a grant wJiere it was clear that
no such grant could have existed." And in Edson v. Mun-
sell. Gray, J. remarks, that " a grant cannot be presumed
against a person legally incapable of making it." Neither of
these cases go the length of settling the question whether the
occurrence of a disability on the part of the owner of the
servient estate, after prescription has begun to run, and be-
fore a title has thereby become established, suspends the
force of the prescription. And the language of Merrick, J.,
in Currier v. Gale, would seem to settle the point, that if such
disability were assumed, like becoming covert, it would not
11
162 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
«
suspend the prescription. After stating that if, after a dis-
seizin and a lapse of time reasonably sufficient to enable the
disseizee to take measures for the protection of his rights, a
disability occurs, it would not delay or postpone the opera-
tion of the statute of limitations, he adds : " The same rule
must, for the same reason, prevail in relation to easements
or other rights acquired by prescription, or to titles estab-
lished and confined by open adverse possession." And this
language is quoted with approbation by Gray, J., in Edson v.
Munsell. But in Lamb v. Crosland, and Mclvin v. Whiting,
the point was distinctly ruled, that, if the ancestor die before
the prescription becomes complete, and the estate descends
to a minor heir, the prescription is suspended during his
minority.
On the other hand, the courts of Vermont, North Carolina,
and New Hampshire hold the same rule as to prescription
as they do as to the statute of limitation. If there is no
disability when it begins to run, no subsequent disability will
arrest or suspend the operation of the prescription. In the
case of Tracy v. Atherton,^ Poland, C. J., in an able and
elaborate opinion maintains, that if the adverse enjoyment
of a way be begun during the life of the owner of the servient
estate, and he die before the term of prescription has expired,
and the estate descends to his heir, then a minor, it would
not work a suspension of the prescription. And in the case
of Mebane v. Patrick, where a like doctrine is maintained,
the court say : " Such being the law as to the statute of limi-
tations, it follows it must be so in regard to prescriptions."
The disability in that case was insanity .^ The same doctrine
was expressly held in Wallace v. Fletcher,^ where it was de-
nied that any different doctrine was sustained in Watkins v.
Peck, and where, of a disability of minority in an heir, to
whom the estate descended from an ancestor after the ad-
1 Tracy v. Atlierton, 36 Verm. 503.
2 Mebane v. Patrick, 1 Jones, N. C. 26.
3 Wallace v. Fletcher, 10 Foster, 434, 4.54.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 163
verso enjoyment had commenced, the court say, " Such in-
tervening disabilities should not defeat the presumption of
title resulting from twenty years possession."
Story, J., in Tyler v. Wilkinson,^ in speaking of the effect
of the presumption which arises from the long enjoyment of a
privilege, says : " Its operation has never yet been denied in
cases where personal disabilities of particular proprietors
might have intervened, such as infancy, coverture, and in-
sanity."
But the court, in Lamb v. Crosland, assume, that when
making this ruling, " he did not bear in mind the distinction
between a right claimed by prescription and a presumption
of right from a non-existing grant." And it is questionable
if the same criticism might not apply to the case of Wallace
V. Fletcher. But there is one remark in the latter case
which has a very important bearing upon the question under
consideration : " It strikes us that the legitimate and natural
tendency of evidence of user may, in many cases, be rather
to prove a deed existing before the commencement of the
user, than one executed during the time of the use, or at its
termination."
The court of Pennsylvania seem also to adopt the same
rule as to prescription as they do in respect to the statute of
limitations, in the matter of its running against a minor or
feme covert.^
It would not, probably, be possible to reconcile these dif-
ferent rules. And while one class of courts hold that the
doctrine of prescription is merely the statute of limitations
applied to incorporeal hereditaments, and the other that in
order to imply the existence of a grant there must have been
an adverse enjoyment for the term of twenty years, during
the whole of which time there was some one in possession of
the servient estate who could have granted or resisted the
enjoyment, there will be two sets of rules, the one or the
1 Tyler v. Wilkinson, 4 Mason, 402.
2 lleiracr v. Stuber, 20 Penn. 463.
164 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
other to be applied according to the local law of the State
where the case may arise.
74. The last clause in the definition of what is necessary
to create a prescription, — that it must be of something which
could have been granted by one party to the other, — has
been pretty fully anticipated ; and yet it may be well to refer
to one or two authorities bearing upon this proposition,
although it is implied from the familiar doctrine, that every
prescription is based upon an assumed original grant.
If, for instance, two adjacent proprietors of lands occupy
them in a manner which each would have a legal right to do,
without obtaining any leave or permission from the other,
neither can insist, as a prescriptive right, that the
[*119] other shall *continue such mode of occupation,
although in its effect it operates a benefit to his
own estate. Such benefit, though derived from another's
estate, is not an easement in or out of the same in favor of
his own. Thus, one built a dam upon his own land, which
so regulated and controlled the flow of the water of the
stream that it no longer was discharged upon the land of a
proprietor below in such quantities as to flood the same, as it
had been accustomed to do before the erection of the dam,
and the owner of the land, by digging ditches therein, was
able to drain it and cultivate it. This he enjoyed for more
than twenty years, when the owner of the dam cut it away,
and sufiered the water to flow as formerly, and the land of
the lower proprietor was, consequently, again flooded and
damaged. But it was held that he was without a remedy
for the injury, since he had acquired no easement to have
the water kept back, for he had done nothing adverse to the
rights of the upper owner, nor had the latter done anything
adverse to him. The benefit derived to the land below was
merely incidental to the lawful act of another's erecting the
dam upon his own land above. The law would not presume,
in such use, that either of these owners had granted any-
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 165
thing to the other, since each liad whatever he enjoyed, inde-
pendently of the other.i
And it is said in Wheateley v. Baugh, that " no man, by
the mere prior enjoyment of the advantages of his own land,
can establish a servitude upon the land of another." ^
And, as stated by Swift, J., in Chalkcr v. Dickinson, it is
always competent to rebut a presumption arising from the
enjoyment of what answers to an easement, by proof of such
circumstances as show that no grant could have been made.^
As there can be no grant by a man to himself, nor an ad-
verse use of his own land by one as against himself,
it may *be regarded as a mere truism to say that no [*120]
length of use of a way, for instance, by a man over
one parcel of his laud to another, can create an easement of
way in favor of the latter parcel. No one can prescribe in
his own land.*
75. But by the cases cited, as has been more fully ex-
plained in another connection, though a way, for instance,
thus used for the benefit of one of two parcels of land over
another belonging to the same owner, would not pass as
appurtenant to such parcel upon a grant of the same, it
might pass if the parcel were conveyed " with all ways." °
76. The following case has been selected, though some-
what complicated in its facts, as furnishing an illustration
of several of the propositions to which the reader's attention
has been called. The case is Watkins v. Peck, and was
very elaborately and ably considered by Parker, C. J. The
facts were briefly these. An aqueduct had been laid from a
spring of water to the estate S., from which point an aque-
duct was laid in 1796 or 1797 to the Bellows House, and
had continued to run there till 1838. In 1812, aqueducts
1 Felton V. Simpson, 11 Ired. 84.
2 Wheateley v. Baugh, 2.5 Penn. St. 528.
3 Chalkcr v. Dickinson, 1 Conn. 382.
* Atkins V. Bordman, 2 Mctc. 457 ; Ritger v. Parker, 8 Cush. 145 ; Cooper i-.
Barber, 3 Taunt. 99 ; Gayctty v. Bcthune, 14 Mass. 49.
s Staple V. Ilcydon, 6 Mod. 3.
166 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
were laid from the Bellows House to the estates of Gage and
Watkins, by which the surplus water not needed at the Bel-
lows House was conducted to these estates, and used there
up to 1838. Subsequent to 1812, Buffiim laid an aqueduct
from S. to his own house, and took a portion of the water
which flowed from the spring to that point, and which did
not flow to the Bellows House. This he continued to use
up to 1838. In 1812, Cochrane became the owner of the
estate S., and held it till his death in 1821, but never in-
terfered with the use of either of the aqueducts. He left
four children, one a minor, to whom his estate passed. In
1838, Peck purchased S. estate of these children, one
[*121] of them still being a minor, and denied the *rights
of Buffum and Bellows, and Gage and Watkins,
to draw water by the aqueducts then in use. Whatever
rights they had to any of the aqueducts depended upon user
and enjoyment, as no deeds had ever been made granting
their use.
One objection to the claim of an easement in such aque-
ducts by an enjoyment thereof was, that, by the death of
Cochrane in 1821, leaving one of his heirs a minor, and the
estate S. having remained undivided till 1838, no user and
enjoyment between these periods could gain an easement
in the S. estate. And the court held that such was the
law, and that it made no difference that the other children
had been of age during that time, since the easement claimed
was of that which was of itself indivisible, and could not
be used without being done adversely to the minor, and
therefore could not be done at all, at least until partition
had been made of the estate among the children, and the
land through which the aqueduct passed had been assigned
to another than the minor. No grant could be presumed
from adverse enjoyment against such minor, since no grant
could be presumed against a person who was incapacitated
to make it. " It would be absurd," say the court, " to
presume a grant where it was clear that no such grant
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 1G7
could have existed." So far, therefore, as Buffum was con-
cerned, it was held that he had not gained a prescriptive
right to use the aqueduct to his estate. But inasmuch as
the Bellows estate had enjo3'ed the aqueduct to that estate
for more than twenty years before Cochrane's death, it had
acquired the same as an easement. And as to the claims
of Gage and Watkins, it was held that, as they took what
water they used from the Bellows estate, and the surplus
only of what flowed to that, their enjoyment of their aque-
ducts was not adverse to any one but the owner of that
estate, and they were not affected by the minority of the
heir of Cochrane ; and having enjoyed the use of their aque-
ducts for more than twenty years by the acquiescence
*of the owner of the Bellows estate, they had ac- [*122]
quired a prescriptive right to the same.^
But it seems to be settled now, as already stated, that,
even if the prescription might be suspended during the mi-
nority of an heir, where the ancestor dies after an adverse
enjoyment has begun, if enjoyed after such heir comes of
age, the two periods of adverse user might be added together
to make the requisite period of prescription.^
77. The cases above cited, as well as the express lan-
guage of the courts in several cases, are directly opposed
to the doctrine of Story, J., in Tyler v. Wilkinson, where
he says: "By our law, upon principles of public conven-
ience, the term of twenty years of exclusive uninterrupted
enjoyment has been held a conclusive presumption 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 applied as a presumption juris de Jure, wher-
1 Waikins v. Peck, 13 N. H. 360-381.
2 Melvin v. Whiting, 13 Pick. 184; Lamb v. Crosland, 4 Rich. 536. See
Guernsey v. Kodbiidges, Gilb. Eq. Cas. 3; La. Civ. Code, Art. 727. See Stat.
2 & 3 Wm. IV. c. 71, ^ 7, as to exceptions in case of disabilities of owners; ante,
pL 73.
168 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
ever, by possibility, a right may be acquired in any manner
known to the law. Its operation has never yet been denied
in cases where personal disabilities of particular proprietors
might have intervened, — such as infancy, coverture, and in-
sanity, — and where by the ordinary course of proceeding
grants would not be presumed. In these, and like cases,
there may be an extinguishment of right by positive
[*123] limitations of time, by *estoppels, by statutable com-
pensations and authorities, by election of other bene-
ficial bequests, by conflicting equities, and by other means.
The presumption would be just as operative, as to these
modes of extinguishment of a common right, as to the mode
of extinguishment by grant." ^
In Lamb v. Crosland, the court insist, as already stated,
that Story, J. did not make the proper distinction between a
prescription, properly so called, and a presumption of a non-
existing grant, the latter of which arises after an enjoyment
for twenty years, the former goes beyond legal memory.^
And Putnam, J., in Sargent v. Ballard, says : " We cannot
suppose that the mere use of the easement for twenty years
is conclusive of the right, nor do we think that was the mean-
ing of Story, J., in Tyler v. Wilkinson. He could not have
intended an enjoyment which had been by favor, and at the
will of the owner for twenty years." ^ And in Watkins v.
Peck, the Chief Justice says : " It would be absurd to pre-
sume a grant where it was clear that no such grant could
have existed.""^
This subject has already been treated of, and was only
resumed from its connection with the doctrine of a suspen-
1 Tyler v. Wilkinson, 4 Mason, 402. Sec also Mebane v. Patrick, 1 Jones,
No. C. 23.
2 Lamb v. Crosland, 4 Eich. 536.
3 Sargent v. Ballard, 9 Pick. 251. Sec also 3 Kent, Comm. 444; Colvin v.
Burnet, 17 Wend. 5G4 ; Nichols v. Aylor, 7 Leigh, 546; Yard v. Ford, 2 Wms.
Saund. 175, note; Mayor of Hull v. Horner, Cowp. 102; Parker v. Poote, 19
Wend. .309, 315; ante, pi. 73.
* Watkins v. Peck, 13 N. II. 377.
Sect. 4.] ACQUIRING EASEMENTS BY PRESCRIPTION. 1G9
sion of prescription, under certain circumstances, in case of
a personal disability of the owner of a servient estate.
Nor does the distinction seem to be of sufficient practical
consequence to occupy much time in its discussion. But it
was resumed by the court of New Hampsliire, in Wallace v.
Fletcher, already referred to,^ where it is said, " the current
of English authorities has gone no further than to hold that
long-continued and uninterrupted possession is evidence from
which a jury may presume a deed." But the judge (Bell)
maintains that, by the American law, such an enjoyment is
something more than a presumption. He quotes 2 Greenl.
Ev. § 539, and the authorities there cited, as well as sundry
others, and concludes, that " this may properly be regarded
as a species of prescription established here by a course of
judicial decisions, by analogy to the statute of limitations of
real actions." But the admission he makes of the excep-
tions there must be to this as a positive rule of pr(^cription,
really seems to leave it very much where the cases of Sar-
gent V. Ballard and Watkins v. Peck had done, that, in order
to be conclusive, it must be shown affirmatively to have all
the qualities of an adverse enjoyment; 1, for the requisite
time ; 2, against the owner of the estate who was in a condi-
tion to grant the easement, and who, 3, had knowledge of
and did not object to the uses by which the right was ac-
quired.
1 Wallace v. Fletcher, 10 Foster, 446. See also Hall v. M'Leod, 2 Mete. Ky.
98, that twenty years' enjoyment is only evidence, it raises a presumption but not
a prescription.
170 THE LAW OF EASEMENTS AND SERVITUDES. [Ca. 1.
[*124] *SECTION V.
OF EASEMENTS BY PUBLIC PRESCRIPTION AND DEDICATION.
1. Public as distinct from private prescription.
2. Towns and corporations may prescribe for ways.
3. Towns may prescribe for pasturage.
4. Towns may prescribe for gates in highways.
5. Prescription for town ways and public liighways.
6. No prescription in favor of "the public," but a dedication.
7. Earned v. Earned. Case of a dedication of a way.
8. Jennings v. Tisbury. Case of a highway by prescription.
9. Dedication a modern doctrine of law.
10. Dedication a concurrent act of land-owner and the public.
11. No one can dedicate but owner of the fee of the land.
12. Intention, essential to a dedication.
13. User not enough, if owner intends not to dedicate.
14. Dedication may be for special purposes only.
15. To what iises lands, &c. may be dedicated.
16. In dedication, owner does not part with the fee.
17. Dedication may be by a single act.
18. Of iand-owners' interest in lands dedicated to the public.
19. Dedication requires no deed of grant, act in pais sufficient.
20. Dedication once made is irrevocable.
21. As to time requisite to create a dedication.
22. Dedication inferred from sale of city lots with plans of streets.
23. Clements v. West Troy. Way appurtenant to lots, though not dedicated.
24. Bowers v. Suffolk Manufacturing Company. Same subject.
25. Owner of soil may not obstruct a dedicated way.
26. Streets may be dedicated -before open or wrought.
26 a. Dedication by laying out cities and villages.
26 6. What acceptance makes dedications effective.
27. Effect of failing to use what is dedicated.
28. Owner may not resume lands actually dedicated.
29. Use of lands to conform to purposes of dedication.
30. No dedication of streets laid on plans, unless lots are sold.
31. In some States there is no dedication of public ways.
32. Ways may be dedicated, if publicly used, in Connecticut.
33. Law of Massachusetts as to dedicating pubhc ways.
34. Common law prevails as to squares, &c.
35. Public cannot insist on dedication against wish of owner.
36. Case of a way opened for owner's convenience.
37. Gowen v. Philadelphia Exchange Company. Open land not dedicated.
38. New Orleans v. United States. Wiiat passes under a dedication.
39. State v. Trask. Case of dedication of a public square.
40. Abbott V. Mills. Dedication inferred from mode of building.
41. Hunter v. Trustees, &c. General subject of dedicating lands.
42. Who has charge of dedicated lands.
43. Individual may prescribe against a dedicated right.
Sect. 5.] EASEMENTS BY DEDICATION. 171
*1. It has already been stated, that public corpo- [*125]
rate bodies, like the inhabitants of towns, may acquire
rights in the nature of easements, by continued corporate
acts of enjoyment, amounting to a prescription. The sub-
ject is in some respects so far distinct from mere private pre-
scriptions, that it has been reserved for a place by itself,
to be followed by that of rights acquired by dedication,
though, as will appear, these differ in many essential par-
ticulars.
But the effect in the matter of ways, which is given, in
many cases, to a user, in establishing a public way and a
dedication of a way to public use, are so nearly identical,
that they can hardly be treated of separately. A way,
however, which is gained by a corporate body by prescrip-
tion, properly so called, is limited to the use of those con-
stituting that body. It is strictly a private easement, and
does not come within the category of public ways.
2. In a dissenting opinion, in Commonwealth v. Newbury,
Putnam, J. says : " I am of opinion that the inhabitants of
a town may prescribe for a way, as well as individuals." ^
He cites a remark, " that the prescription may be that the
usage of the vill D. has been time out of mind that the in-
habitants, (fee, have had a way over the land of the plaintiff
to the church, (fee, and that the inhabitants may prescribe
for an easement." ^
In Commonwealth v. Low, the court say : " There is no
doubt that the inhabitants of a town, in their corporate
capacity, are capable of taking an easement or other incor-
poreal hereditament, and that they may become seized of a
right of way by grant, prescription, or reservation. A grant,
also, may be presumed from continued occupation, as well in
favor of a corporation as of an individual If a grant of
the way be presumed, it will not support the indictment. It
will operate in favor of the town only, and will give no right
1 Commonwealth i'. Newbury, 2 Pick. 51.
2 17 Viner, Abr. 25G ; Nudd v. Hobbs, 17 N. H. 525,
172 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
[*126] of passage to any but the inhabitants. It *will be
technically a private way, and any person other
than an inhabitant passing upon it will be a trespasser." i
3. So in New York, the court held that the inhabitants
of a town might gain a right of easement of pasturage by
prescription or grant, and that, consequently, any inhaljitant
of the town might turn his sheep upon the land without
thereby being a trespasser.^
4. So it was held that the inhabitants of a town might
prescribe for a right to maintain a gate across a highway,
when the same was necessary to preserve the grass in the
close through which it leads.^
5. The language, however, of the courts in many cases
would lead one to infer that ways for public use, whether
town ways or public highways, might be established by pre-
scription. Thus in Stedman v. Southbridge it is said : " It
has been argued as if the question was, whether a town way,
under any circumstances, can be proved by prescription or
by presumption, arising from use and enjoyment. It is, per-
haps, too much to say that such a way, or any other kind of
easement cannot be thus proved, but it would be manifestly
difficult, because, in general, the facts which would tend to
prove the existence of such a way would prove the larger
easement of a public highway." *
The use of a way by the public for twenty years gives a
prescriptive right of a public as well as a similar user does of
a private way, and this right, when once established, con-
tinues until it is clearly and unmistakably abandoned. A
transient or partial non-user will not work an abandonment.
It must be total, and of sufficient length of time.^
But to establish a public way by prescription, there mvist
1 Commonwealth v. Low, 3 Pick. 408; Smith v. Kinard, 2 Hill, So. C. 642;
Green v. Chelsea, 24 Pick. 71 ; Avery v. Stewart, 1 Cush. 496.
'^ Ptose V. Bunn, 21 N. Y. 275.
'^ Spear v. Eicknell, 5 Mass. 124.
* Stedman v. Southbridge, 17 Pick, 162; post, p. *142.
t* Lcwiston V. Proctor, 27 111. 417.
Sect. 5.] EASEMENTS BY DEDICATION. 173
have been a user for twenty years in substantially the same
line and direction, and if a line once used is abandoned, and
another adopted changing, in fact, the thread of the road,
and it remains so for eight or nine years, it is not such a
continuous use as to establish a presumptive right. ^
So in Avery v. Stewart, it is said : " It may be difficult to
decide whether the long user of a way by the inhabitants of
a town, and by others, would authorize the presumption of
its being a public highway or a town-way." ^
Now, in all these cases, it is apprehended tbe court in-
tended to speak of a way open for the use of all persons in-
discriminately, whether known and called a town or
a *public way or road,^ and not a mere private way, [*127] .
belonging only to the inhabitants of a town.
The court say, in Commonwealth v. Low : " AVays of vari-
ous kinds may be proved, not only by prescription, but by a
continued and uninterrupted use of them for a period much
within the memory of man. And it cannot be doubted that
public highways may be shown by evidence of a user, as well
as by the record of their laying out." ^
And parol evidence of the existence and user of an ancient
highway is admissible to establish it as such.'^
So in Folger v. Worth, it is said : " It is now, we think,
too late to contend that the existence of a highway cannot
be proved by immemorial usage." ^
6. From what has heretofore been said of the distinction
between prescription, — where there is assumed to have been
a grant, with a grantor and grantee, — and a custom, —
where, from the nature of the case, if there is a grant and a
1 Gentleman v. Soule, 32 III. 278.
2 Avery v- Stewart, 1 Cush. 496.
3 Craigie v. McUen, 6 Mass. 7 ; Commonwealth r. Low, 3 Pick. 408; Valen-
tine V. Boston, 22 Pick. 75. See Nash v. Peden, 1 Speers, 17.
* Commonwealth v. Low, 3 Pick. 412.
6 Green v. Canaan, 29 Conn. 167.
6 Folger V. Worth, 19 Pick. 108. See also "Williams v. Cummington, 18 Pick.
312 ; State v. Hunter, 5 Ired. 369 ; State v. Marble, 4 Ired. 318 ; Nash v. Peden,
1 Speers, 17.
174 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
grantor, there is no grantee, the persons who were to enjoy
under it being incapable of taking in their collective capac-
ity, — there could, obviously, be no prescription, prop-
erly speaking, for a right in the public to use a way, for the
reason that there is no grantee in the assumed grant. It
comes under the category of dedications, and the court, in
Valentine v. Boston, remark: " When those decisions [Com-
monwealth V. Newbury and Commonwealth v. Low] were
made, the doctrine of dedication had not been recognized as
the law of this State." ^
In the last case, the plaintiff, and those under whom he
claimed, had suffered a small piece of ground in front of his
store to be used as a part of the street for a great
[*128] length of *time, and it was held that the public had
acquired an easement to use the same as a way.
And where a man had opened a way across his land, which
has been used as a highway for the term of twenty years,
it was held that it might be treated as a public way, and one
which he could not close. But if the user had been for a
shorter period, the land-owner might close it.^ " Whether
it may have been acquired by grant or dedication, or the pre-
sumption of a laying out, and whether it may be viewed as a
private way for the town, or as a highway for the public,
seem to us to be useless speculations."
This may be true in settling the question of damages then
before the court. But, in its bearing upon other cases, it
may not bo so unimportant to fix whether the right claimed
was gained by prescription or dedication, in respect to which
such different rules will be found to prevail. To authorize a
dedication does not require the existence of a corporation to
whom it is made, or in whom the title should vest. It may
be valid without any specific grantee in esse at the time, to
whom the fee could be granted. And in this respect it forms
an exception to the general rule of transferring or creating
1 Valentine i'. Boston, 22 Pick. 75.
2 Estes V. Troy, 5 Maine, 3G8. But see State v. M'Danicl, 8 Jones, L. 284.
Sect. 5.] EASEMENTS BY DEDICATION. 175
an interest in lands, as it may be done without a deed, and
without any person competent to accept the grant as gran-
tee.i The public is an ever-existing grantee, capable of tak-
ing a dedication for public uses.^
7. The court also recognize the distinction above referred
to, between a prescription and a dedication, as applicable to
ways for public use, in the case of Larned v. Larned,'' where
tliere had been a way which the public had used for forty
years, across certain lots of land between certain termini.
The way across the plaintiff's close had been changed, eight
years previous to the action, by his consent and tliat of the
defendant, who was the plaintiff's grantor, and of the other
owners of the parcels over which the way passed, the termini
remaining the same. The court held this to be a
*dedication of the new way. They say a way may [*129]
be established by dedication of the owner of the soil,
with the assent of those who are interested in tlie way.
" And this," they add, " is true, not only of a highway, but
of a town-way, or a private way." By " private way," as
here used, must obviously have been intended that class of
ways known to the law of Massachusetts, which are laid out
by public authority under that name, and are open to the use
of the public, though designed for the accommodation of the
proprietors of particular estates ; for the court say, " Length
of use is not a necessary clement, without which a dedica-
tion cannot be proved." And there was nothing in the case
which called for an overthrow of all preconceived and well-
settled rules in relation to a grant or prescription being ne-
cessary to gain an easement of a private way. Besides, in
Commonwealth v. Newbury,^ the court say : " We do not see
1 Hunter v. Trustees of Sandy Hill, 6 Hill, 407 ; 3 Kent, Comm. 450 and note ;
Abbott V. Mills, 3 Vt. 521 ; State v. Wilkinson, 2 Vt. 480 ; Cincinnati v. White,
6 Pet. 432 ; Tawlet v. Clark, 9 Cranch, 292, 331 ; Kennedy v. Jones, II Ala. 63 ;
Brown v. Manning, 6 Ohio, 298.
2 Warren v. Jacksonville, 15 HI. 236.
3 Larned v. Larned, 11 IMetc. 421. See Lawton v. Tison, 12 Rich. 88.
* Commonwealth v. Newbury, 2 Pick. 57. See Dawes v. Hawkins, 8 C. B.,
176 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
how the principle of dedication to the public can be applied
to a private way, for the very evidence which would tend to
show a dedication would disprove it as a private way."
A dedication is properly only to the public use ; there can
be no dedication, properly speaking, to private uses. A
private pass-way cannot be created by dedication. ^
Although the authority cited directly sustains the state-
ment here made, it is apprehended that though there may
not be technically a dedication of a way to private uses,
there are many cases where, from acts like those of a dedica-
tion to a public use, rights are secured to individuals for
their private benefit. Thus in laying out streets, alleys, &c.,
by the owner of land, who sells lots bounding upon them, it
does not constitute them public streets until the public shall
have, in some way, accepted and adopted them as such, and
yet the proprietors of those lands have a right to the use of
those streets beyond their being ways or easements by neces-
sity. Thus, in Bissell v. N. Y. Central R, R., one M. opened
a new street over his own land, and sold lots upon it. And
the court say, " his grantees acquired the right to have the
strip remain open for the purpose of a street." " By the
sale of the lots, nothing passed to the several grantees but
this right and a perpetual easement over this ground of
egress to and from their lots."^
This must obviously be so, if, as is laid down in Holdane
V. Trustees, <fec.,^ a way, in order to become a public highway
by dedication, must be a thoroughfare, and, if a cul de sac,
it could not be.
The language, however, of the court of Massachusetts up-
on this point is in a hypothetical form : " If a private way
can be established between the parties by dedication, it must
N. s. 848 ; Pope v. Dcvercux, 5 Gray, 409, where the court seem to assume that
" private way " in the ahove case was a private way at common law. See also
Lawton t;. Tison, 12 Eich. 88.
1 Hale V. M'Leod, 2 Mete. Ky. 98 ; post, pp. *13.3, *141.
2 20 Barb. 633. See Clements v. W. Troy, 16 Barb. 251. See pos/, p. *138
8 23 Barb. 103.
Sect. 5.] EASEMENTS BY DEDICATION. 177
appear to have been done with a full knowledge of the rights
of the parties, thus indicating a clear intent by the party
owning land to devote his land to such purpose, so as to
give to others an irrevocable right to use it." ^
8. The effect upon the public in the matter of right is so
nearly identical, whether the way has become a public one
by prescription or dedication, that the line of distinction
between the two, as modes of acquiring it, is often over-
looked. The case of Jennings v. Tisbury may be cited as
recognizing, if it does not fully explain, the distinction.
That was the case of a narrow lane in Tisbury through open,
unenclosed lands, which had been used as a road by the
public more than twenty years, and was determined
irrespective of *any statute now in force in Massa- [*130]
chusetts on the subject of dedication. There was no
record in this case of a laying out of the road, and the
plaintiff placed his claim that it was a public highway upon
a dedication, because the town had not, under a statute
authorizing them to give notice, disavowed it as a public
way. But the court treat of it as not being affected by that
statute. " This leaves untouched the case of public ways by
prescription, and perhaps it would not be too much to say,
that a large proportion of the public ways, whether they be
considered public highways or town-ways, stand upon no
other title but prescription. No doubt, in the early settle-
ment of the country, when lands were commonly granted to
a company of proprietors, public ways were reserved when
the lands were surveyed and allotted, which have remained
open and public ways to the present time, of which there is
no record. That these are in all respects highways, is a point
too well established to require authorities. To establish such
a way, where there is no proof of dedication, and where the
element of dedication does not subsist, it will be necessary
to prove actual public use, general, uninterrupted, continued
1 Atwater v. Bodfisli, 11 Gray, 152 ; post, p. *142. For the distiuction between
a way by dedication and one by license, see post, p. *133.
12
178 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
for a certain length of time. In general, it must be such as
to warrant a presumption of laying out, dedication, or appro-
priation by parties having authority so to lay out, or a right
so to appropriate, lilce that of prescription or non-appearing
grant in case of individuals. It stands upon the same legal
grounds, a presumption that whatever was necessary to give
the act legal effect and operation was rightly done, though
no other evidence of it can now be produced except the
actual enjoyment of the benefit conferred by it." And upon
the question of length of enjoyment requisite to raise the
legal presumption of its being a public highway, the judge
says : " It is put upon the ordinary ground of prescription
and presumption of a non-appearing grant or record, Avliich
we now consider as fixed at twenty years. If such evidence
of the existence of a highway is proved, tlie court
[*lol] are of *opinion that it will be sufficient, independ-
ently of any such supposed dedication." ^
Whether the foregoing opinion is open to criticism or not,
in failing to define what would be a dedication, so far as it
goes to establish the doctrine that there may be a public high-
way whose existence may be proved by prescription, indepen-
dent of any evidence of an original dedication, the same is
reaffirmed by the court in the above-cited case of Durgin v.
City of Lowell.
9. Tlie whole doctrine of dedication of easements to the
public use seems to be of comparatively modern date. Tims
it is stated by Gibson, C. J., in Gowcn v. Pliiladelpliia Ex-
change Co., 2 that the doctrine of dedication to the public,
without the intervention of trustees, began in 1732, Rex v.
Hudson,^ and was next applied in Lade v. Shepherd,* in
1735. It then slept until 1790, in the case of Rugby v.
Merriweather.5
1 Jeniiinf,'S v. Tisbury, 5 Gray, 73. See Williams v. Cummington, 18 Pick.
312 ; Durgin v. City of Lowell, 3 Allen, 398 ; Valentine v. Boston, 22 Tick. 75.
2 Gowcn V. Phila. Exchange Co., 5 Watts & S. 141.
8 Rex V. Hudson, 2 Strange, 909.
* Lade v. Shepherd, 2 Strange, 1004.
& llugljy Ciiarity i;. Merrywcather, 11 East, 375.
Sect. 5.] EASEMENTS BY DEDICATION. 179
In Wisconsin, it is declared to be a part of the common
law of that State. So in Tennessee.^
In Hinckley v. Hastings, the court of Massachusetts doubt
if the doctrine of dedication had ever been adopted in this
Commonwealth. This was as late as 1824.^
But in Ilobbs v. Lowell, the court, with one dissenting
opinion, held that a highway could be established here by
dedication. This was in 1837.^
The doctrine had gained currency slowly, for in the year
before that, the same court, speaking of dedication,
say : *" The doctrine of dedication, if it be adopted in [*132]
this State," &c^
The matter had been fully considered in the case of Cin-
cinnati V. Wliite,^ in the Supreme Court of the United
States, and settled in 1832, which was a case of dedication of
an open square in a city ; and this had been preceded by the
case of Pomeroy v. Mills, in 1830, in Vermont.^
It may now be assumed to be a settled doctrine, at com-
mon law, in this country generally. It can best be stated
and illustrated by a reference to some of the cases which
have occurred, with the langviage of the courts in respect to
the same.'^
10. Although the idea of dedication implies an appropria-
tion of property, by the act of the owner, for the use and
benefit of others, without any formal and specific contract
between them, like the making and receiving of a grant by
deed or otherwise, yet to a complete dedication there is as-
sumed to be an acceptance of the offered benefit by those for
whom it was intended. In the language of the court, in
1 Gardiner v. Tisdale, 2 Wise. 153; Connelian v. Eord, 9 Wise. 240; Scott v.
State, 1 Sneed. 632.
2 Hinckley, v. Hastings, 2 Pick. 162.
3 Hobbs V. Lowell, 19 Pick. 405.
* Green i'. Chelsea, 24 Pick. 71.
5 Cincinnati v. White, 6 Pet. 431.
6 Pomeroy v. Mills, 3 Vt. 279.
"! Pearsall v. Post, 20 AVend. 115, per Cowen, J., and cases cited. See post,
chap. 3, sect. 9, pi. 17.
180 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
Green v. Chelsea, " Dedication must originate in the volun-
tary donation of the owner of the land, and be completed by
the acceptance of tlie public." ^
Nor can one of two or more tenants in common dedicate
the common lands belonging to himself and his cotenants.^
11. And in respect to who may dedicate lands to public
uses, the rule seems to be the same as in making grants of
any kind. Thus the land of a married woman may be dedi-
cated where the acts of herself and husband arc such as to
indicate an intention to do so. But it can only be done by
one having the fee in the land.^ It cannot be done by a tres-
passer or a tenant.^
12. To constitute a dedication of land to a public
[*133] use, *there must first be an intention to do it on the
part of the owner. And this must be unequivocally
and satisfactorily proved. But it may be manifested by writ-
ing, by declaration, or by acts.^ Dedications have been estab-
lished in every conceivable way by which the intention of
the party could be manifested. ^ Without that, no dedica-
tion can take place, and if, for instance, in opening a passage-
way of a character which might otherwise be deemed a pub-
lic way, the owner of the land should place a gate at its en-
trance, by which such passage may be closed, it would be
regarded as evidence negativing the intention to make it a
public way. Nor would it become so by the gate being suf-
fered to go to decay, or ceasing to be used. It was accord-
ingly held, in Commonwealth v. Newbury," that there must
be a manifest intention to accommodate the public through a
man's land, before he shall bo held, by implication, to have
1 Green v. Chelsea, 24 Pick. 71 ; Cliild v. Chappell, 5 Seld. 256.
'■^ Scott V. State, 1 Sneed. 629.
8 Sehenley v. Commonwealth, &c., .36 Penn. St. 29; Ward v. Davis, 3 Sandf.
502.
* Gentleman v. Soulc, 32 III. 279; State v. Atherton, 16 N. H. 208.
^ Gentleman v. Soulc, 32 111. 280 ; Godfrey v. Alton, 12 111. 29 ; Scott v. State
1 Sneed. 6.33.
6 Wannh V. Leech, 28 111. 492.
■^ Commonwealth v. Newbury, 2 Pick. 51.
Sect. 5.] EASEMENTS BY DEDICATION. 181
given it, so that even when, at tlie first opening of such way,
a post only had been put up, which soon after was knocked
down, and remained down for twelve years, and the passage
had been uninterrupted all that time, it was determined that
the owner might maintain trespass against those who used
the way ; and the court cite, as sustaining that doctrine,
Roberts v. Karr.^
The doctrine that the erection of a post or a gate at the
entrance of a passage-way, or similar acts, may negative the
intention of the owner to dedicate it, and thereby prevent it
becoming a highway, is undoubtedly well sustained, both in
England and this country .^ But the modern authorities, it
is believed, instead of holding one a trespasser who should
pass over a way in a city apparently open for use, would
hold that the very opening of the way would be a license to
the public to use it, if it had the ordinary indicia of being
intended for public convenience. It would otherwise serve
as a trap to innocent passengers.^
If the owner of land open a way across it, having the
ordinary indicia of an open way for the public, he would be
considered as licensing its use so long as he keeps it open,
although he may, by posts, gates, or public notice at its
entrance, negative the dedication of it as a public way. Nor
would one be liable in trespass for travelling over it while in
this state. Nor would the city or town be liable to any one
passing over it who should sustain damage by reason of its
being defective or unsafe for travel. Nor would it make any
difference that the way is a cul de sac, open at only one end.
The measure of the implied license is fixed by the apparent
use for which it is proposed and used. The traveller has no
1 Roberts v. Karr, 1 Campb. 262, note. See also Woolr. Ways, 12; Leth-
bridge v. Winter, 1 Campb. 263, note.
2 Ilu^by Charity v. Merryweatlier, 11 East, 376, note; Carpenter v. Gwinn,
35 Barb. 39.5, 406 ; Proctor v. Lewiston, 25 111. 153; 2 Smith, Lead. Cas., 5th
Am. ed., 203.
3 Stafford v. Coyney, 7 Barnew. & C. 257 ; Bowers v. Suffolk Mg. Co., 4 Cash.
332; Morse v. Stocker, 1 Allen, 154; Commonwealth v. Fisk, 8 Mete. 238;
Cleveland c. Cleveland, 12 Wend. 172.
182 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
occasion to inquire whether the way is a pul)lic or private
one, so far as it is a question of license.^
The owner of the land would be estopped to deny that it
was a highway if opened and used as such, though never
accepted by the public.^
So where a manufacturing company opened a street on
their own premises, and built houses upon each side, and
wrought the way as a street, and the houses were occupied
by the operatives employed in their works, but it had not
been their intention to dedicate it as public way, and they
had posted up at the opening of tlie street, " Private way,"
it was held to be such only, and the city was not responsible
to a person who, in passing through it, sustained injury.'^
And where the owners of two adjoining estates in a city,
left an open space between their houses leading from the
street to the rear of their lots, and suffered the public to
pass over the same for thirty or more years, but the way had
never been laid down upon any plot of the town or city, nor
recognized as such by the municipal officers, and there was
no evidence of an actual dedication of it having been made,
it was held that one of the owners might enclose his part of
the land, although the other had erected a building fronting
upon this passage-way. Nor could any one, by merely
passing over this way, have acquired a prescriptive right to
use it as a way.^
[*134] *The acts and declarations of the land-owner, indi-
cating the intent to dedicate his land to the public
use, must be unmistakable in their purpose and decisive in
their cliaracter to have that effect. In one case, a land-
owner in the village of Newburgh, laid out a strip of land of
the ordinary width of a street, from one public street to
another, and wrought it, at the expense of several thousand
dollars, into the condition of a street fit for public use.
1 Danforth v. Durcll, 8 Allen, 244.
2 Greene v. Cuiiaiin, 29 Conn. 172.
3 I)nij,Mn V. Lowell, .T Allen, .398.
* Crcssniau v. Vignaud, 14 Louis, 176.
Sect. 5] EASEMENTS BY DEDICATION. 183
When he began to work it, he had gates at each end.
He took down one as ho progressed, and in the end he
'removed the other ; and while he was working it, people on
foot and some in vehicles passed over it. After it was com-
pleted he replaced one of his gates. A citizen of the town
insisted upon passing over it, on the ground that it was a
dedicated way. The court held it was a question of intention
on the owner's part. " The plaintiff must be shown, in the
present case, to have declared by words or by actions, or
both, his irrevocable intention to make this strip of land,
forthwith, not merely a road, or a way of passage, but a
public way." The taking down the gates here was account-
ed for by its being necessary in constructing the way. It
was held not to be a dedicated highway .^
A similar doctrine was held in Proctor v. Lewiston, where
a party fenced out a strip of land which the public used for
a way. Whether it was a public way depended upon the
intention with which this was done on his part. If once
dedicated, it could not be retracted. But his acts and
declarations at the time of making the road might be^ shown
to negative such intention. ^ And the question of dedication
is always one of mixed fact and law.'^
And in Poole v. Huskinson, it was held that the user of a
way by the public is, at best, only evidence of intention on
the part of the owner of the land to dedicate it, and
that *a single act of interruption by the owner is of [*135]
much more weight upon the question of intention,
than many acts of enjoyment on the part of the public ; the
use, without the intention to dedicate it as a public way, not
being a dedication.^
1 Carpenter v. Gwynn, 35 Barb. 395, -406.
2 Proctor V. Lewiston, 25 111. 153. See Bowers v. Suffolk Mg. Co, 4 Cush.
332.
3 Cowles V. Gray, 14 Iowa, 8.
* Poole ». Huskinson, 11 Mees. & W. 827 ; Barraclough v. Johnson, 8 Adolph.
& E. 99 ; Stafford v. Coyney, 7 Barncw. & C. 257 ; Stacey v. Miller, 14 Mo. 478,
no dedication, though used for fifteen years ; Dwinel v. Barnard, 23 Me. 554 ;
Skeen r. Lynch, 1 Robins, Va. 186.
184 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
But " it is every day's practice to presume a dedication of
land to the public use, from an acquiescence of the owner in
such use." 1 And the doctrine is well established, that a'
dedication of real estate to jDublic use may be made by mere
verbal declarations, accompanied with such acts as are
necessary for that purpose.^
It is upon the ground of want of intention to dedicate it to
the public, that no man, ordinarily, loses his right to enclose
a strip of land lying between his buildings and the highway,
though suffered to remain open to the same for ever so long
a period of years.^
13. And where a way is opened as a private way, and in-
tended as such, and this can be shown, no length of use by
others will make it a public way.*
14. There may, moreover, be a dedication of land for
special uses. But it must be for the benefit of the public,
and not for a particular portion of it. A permissive use of
a way by certain portions of the community constitutes a
license, and not a dedication, and is ordinarily something
that may be revoked.
Thus in Stafford v. Coyney, the land-owner suffered the
public to use a road through his estate for several years for
all purposes except that of carrying coals. It was held, at
best, to be but a partial dedication of the way as a highway
to the public. " The public must take secundum formam
doni ; if they cannot take according to that, they cannot take
at all." 5
And though the judges in that case expressed doubts
jyhether there could be such a partial dedication, the point
was settled in Poole v. Huskinson, where it was held
[*136] that *there might be a dedication to the public for a
1 Knight V. Ileaton, 22 Verm. 48.3.
2 Hall V. M'Leod, 2 Mctc. Ky. 104.
3 Govven V. Pliila. Exchange Co., 5 Watts & S. 141 ; Tallmadge v. E. River
Bank, 26 N. Y. 108.
* Hall V. M'Leod, 2 Mete. Ky. 98.
'> Stafford v. Coyney, 7 Barnew. & C. 257.
Sect. 5.] EASEiMENTS BY DEDICATION. 185
limited purpose, as for a foot-way, a horse-way, or a drift-
way, thouf>'li there cannot be a dedication to a limited part
of the public.^
In Barraclough v. Johnson, the owner of the land opened
the way for public use, upon an agreement Ijy an iron com-
pany and the people of the hamlet to pay him five shillings a
year, and to find cinders to repair the way with. It was held
to be a revocable license only, and not a dedication, though
it had been used by any person wishing to pass over it for
nineteen years. Denman, C J. says in that case : " A dedi-
cation must be made with intention to dedicate. The mere
acting so as to lead persons into the supposition that the way
is dedicated does not amount to a dedication, if there be an
agreement which explains the transaction,"
And in Hemphill v. City of Boston, the court held that it
was competent to dedicate a way as a foot-way, without mak-
ing the city liable to keep it in suitable repair for the passage
of carriages.
15. Waiving, for the present, what would be sufficient evi-
dence of a dedication, the purposes for which the use of
land may be dedicated are various, and the effect of such a
dedication varies according to the nature of the use to which
the land is to be applied.^
Thus, by the civil law, if a thing was dedicated to sacred
and religious uses, it ceased to belong to individuals, and a
piece of ground became such by depositing within it a dead
human body ; and this conforms in some measure with the
common law.^
*At common law, it has been held that there may [*137]«
be a dedication to public and pious uses, such as
1 Poole V. Hiiskinson, 1 1 Mees. & W. 827 ; Barracloufjrh ;;. Johnson, 8 Adolph.
& E. 99; Gowen v. Pliila. Exchange Co., 5 Watts & S. 141 ; Hemphill r. City
of Boston, 8 Cush. 195. See Woolr. Ways, 13; The King v. Northampton, 2
Maule & S. 262 ; State v. Trask, 6 Vt. 355 ; Danforth v. Durell, 8 Allen, 244.
2 Eowan v. Portland, 8 B. Monr. 248.
8 Inst. 2, 1, 7 and 9; Bract., fol. 8; Abbott v. Mills, 3 Vt. 521; Pawlet v.
Clark, 9 Cranch, 293, 331.
186 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
glebe land or land for the erection of a clnirch, for the use
of a non-existing church,^ or for purposes of burial of the
dead.2
So there may be a dedication of a spring of water to pub-
lic use,'' or land for a public square in a city,'* or for a street
or public highway ,5 or for a public quay or landing-place
upon the bank of a river,^ or for public commons, or for sites
for court-houses or other public buildings,'^ and it would
seem that " all sorts of easements and rights to enjoyment of
land, whether for use or of pleasure, which may be acquired
by an individual by grant or prescription, may also be ac-
quired by the public by actual dedication."^
16. It is not necessary, in order to effectuate a dedication,
that the owner of the land dedicated should part with the
fee of the same. Nor is it inconsistent with an effectual ded-
ication, that the owner should continue to make any and all
uses of the same which do not interfere with the uses for
which it is dedicated.^ And where one who had dedicated
a publid way, between wliich and the land of a third
[*138] person there was a ditch, and the latter, in order *to
gain access from his land to the way, laid a bridge
across the ditch, one end of which rested upon the way, it
1 Pawlet V. Clark, 9 Cranch, 293.
2 Bcatty V. Kurtz, 2 Pet. 506, 583.
8 M'Connell v. Lexington, 12 Wheat. 582.
* Cincinnati v. Wliite, 6 Pet. 431 ; Commonwealtli v. Alburger, 1 Whart. 469;
2 Smith, Lead. Cas., 5th Am. ed., 222.
^ Denning v. Roome, 6 Wend. 651.
6 New Orleans v. United States, 10 Pet. 662, 712; Gardiner v. Tisdale, 2
Wise. 153 ; Godfrey v. City of Alton, 12 111. 29 ; Bolt v. Stcnnett, 8 T. K. 606.
^ Hunter v. Trustees of Sandy Hill, 6 Hill, 407 ; Watertown v. Cowen, 4
Paige, 510; Abhott r. Mills, 3 Vt. 521.
8 Post V. Pearsall, 22 Wend. 480, per Vcrphnrl- ; Rowan v. Portland, 8 B.
Monr. 232.
2 Al)bott V. Mills, 3 Vt. 521 ; Hunter v. Trustees of Sandy Hill, 6 Hill, 407 ;
State V. Wilkinson, 2 Vt. 480 ; Ilobbs v. Lowell, 19 Pick. 405 ; Post v. Pearsall,
22 Wend. 451 ; Cincinnati v. White, 6 Pet. 431 ; Barclay v. Howell, 6 Pet. 498;
Gardiner v. Tisdalc, 2 Wise. 153, 194; Connehan v. Ford, 9 Wise. 240; Scott v.
State, 1 Sneed. 632 ; Commissioners, &c, v. Taylor, 2 Bay, 290 ; Schurmeier v.
St. P. & Par, R. R. 10 Min. 104.
Sect. 5.] EASEMENTS BY DEDICATION. 187
was held that the owner of the soil, notwithstanding the
dedication, miglit have trespass against the party who con-
structed the bridge.^
17. The doctrine of prescription is not applicable to the
case of dedication, so as to require evidence of a long user
in order to establish the right. A valid dedication may be
made by a single act, if positive and unequivocal in its na-
ture, and especially where purchases have been made upon
the faith which the act was meant to induce. To constitute
a public use, it is not necessary that the public at large, that
is, all persons without distinction, shall be able or be enti-
tled to share in its advantages, but it is sufficient that its
advantages are meant to be shared, and may be shared, by
the inhabitants, or a portion of the inhabitants, of a city,
town, or village, or other locality. Though the above is the
language of the court, Duer, J., in Ward v. Davis, and is
believed to be, in most respects, sustained by other decided
cases, it will be seen that a different doctrine is mentioned
in other cases as to a dedication, properly speaking, being
limited to certain portions of the public.^
18. It has accordingly been held, that the proprietors of
town lots adjoining a street which has been dedicated to the
public acquire, thereby, rights in the street of a private char-
acter distinct from that which the public have, and may
have an action for damages for any obstruction in or injury
to such street ; ^ whereas, if one purchase a village or town
lot bounded upon a public street, he acquires thereby no
right of a private character, distinct from the use which
every one of the public may claim, although the foe
of his *land in fact extends to the centre line of the [*139]
street, subject only to the public easement.'^
1 Lade v. Shejjherd, 2 Strange, 1004.
2 Ward V. Davis, 3 Sandf. 502.
3 Indianapolis v. Croas, 7 Ind. 9; Haynes v. Tliomas, Ibid. 38; Tate v. Ohio
& Miss. R. K. Co., Ibid. 479. But see Mercer i'. Pittsburg, &c. K. R. Co., 36
Penn. St. 99 ; j'ost, pi. 2.5; ante, p. *129.
* Kimball v. City of Kenosha, 4 Wise. 321. See Barclay v. Howell, 6 Pet. 498.
188 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
19. To constitute a dedication requires, however, no grant
or conveyance by deed or writing on the part of the owner
of the land. If he shall do such acts in pais as amount to a
dedication, the law regards him as estopped in pais from de-
nying that the public have a right to enjoy what is dedicated,
or from revoking what he had thus declared by his acts.
And there may be a dedication to the use of a town before
it shall have been actually incorporated, or it may be to the
public, — a body not capable of taking a grant, — the only
limit being, that what is dedicated is suited to the wants of
the community at large.^
20. And a dedication, when once made to and accepted
by the public, is in its nature irrevocable.^
If one make a dedication of his land to public uses, he will
be at liberty to revoke this at any time before the same has
been accepted, but not afterwards.^
21. If, in this connection, it is asked what length of time
is necessary in order to have a dedication become effectual,
it is believed there is no period or term of enjoyment neces-
sary, as in the case of prescription. Length of enjoyment
may be regarded, when the evidence of a dedication having
been made depends upon a user by the public of the thing
dedicated. But as all that is requisite to constitute a good
dedication is, that there should be an intention and an act
of dedication on the part of the owner, and an acceptance on
the part of the public, as soon as these concur, the dedi-
1 2 Smith, Lead. Cas., 5th Am. ed. 209 ; Cincinnati v. White, 6 Pet. 431 ;
New Orleans v. United States, 10 Pet. 662, 712 ; Cady v. Conjjer, 19 N. Y. 256 ;
Iliiyncs V. Tliomas, 7 Ind. .38; Warren v. Jacksonville, 15 III. 236; Cole v.
Sprowl, 35 Me. 161 ; Skccn v. Lynch, 1 Robins. Va. 186; Vick v. Vicksburg, 1
How. Miss. 379; Connehan v. Ford, 9 Wise. 240; Commonwealth v. Fisk, 8
Mete. 238 ; Ward v. Davis, 3 Sandf. 502 ; Wrifiht ;». Tukey, 3 Ciisli. 294.
■-^ State V. Trask, 6 Vt. 355 ; New Orleans v. United States, 10 Pet. 662 ; Com-
monwealth V. AlhiirRer, 1 Whart. 469 ; Missouri Institute, &c. v. How, 27 Mo.
211 ; Huber v. Gazley, 18 Ohio, 18; Rowan v. Portland, 8 B. Monr. 232, 247;
Raf,'an v. M'Coy, 29 Mo. 35G ; Scott v. State, 1 Sneed. 632; Dubuque v. Ma-
lony, 9 Iowa, 455.
3 Baker v. St. Paul, 8 Min. 494.
Sect. 5.] EASEMENTS BY DEDICATION. 189
cation is complete. Ordinarily, there is no other mode of
showing an acceptance by the public of a dedication,
tlian *by its being made use of by them, and this [*140]
must be sufficiently long to evince such acceptance,
depending, of course, upon the circumstances of each case.
It is not compulsory, at common law, upon tlie public to
accept the user of a way when offered ; ^ but, when accepted,
the dedication is complete.^ Six or seven years liave, in some
cases, been held to be sufficient, and in no case has tlie time
been measured by that required to create a prescription.
As there may be a qualified or limited dedication, having
regard to the uses and purposes for which the thing dedi-
cated may be applied, so there may be a limited or partial
acceptance of what has been dedicated in a more general
form, and in that case the dedication takes effect only in its
limited or qualified form. But when, and so far as the ded-
ication is accepted, it takes effect, and the owner of the
soil is thenceforward excluded from reasserting his ancient
rights.^ If, however, the only evidence of the dedication of
a way is its having been used as such by the public, such
user, in order to constitute sufficient evidence of such dedi-
cation, must have continued for at least twenty years."^ And
it seems that it must have been so used as to show that the
public require it for their accommodation, and that the own-
er intended to dedicate it.^
1 Fisher v. Brown, 2 B. & Smith, 770; Robbins v. Jones, C. B. 26 Law Rep.
291.
2 Baker v. St. Paul, 8 Min. 494.
3 Abbott V. Mills, 3 Vt. 521 ; Denning v. Roomc, 6 "Wend. 651 ; Woolard r.
M'CuUough, 1 Ired. 432 ; State v. Trask, 6 Vt. 355 ; State v. Marble, 4 Ired. 318 ;
Shaw V. Crawford, 10 Johns. 236 ; Post v. Pearsall, 22 Wend. 425 ; Gowen v.
Phila. Excliange Co., 5 Watts & S. 141 ; Green v. Chelsea, 24 Pick, 71 ; Bar-
clay V. Howell, 6 Pet. 498, 513 ; Cincinnati v. White, 6 Pet. 431 ; Woodyer v.
Hadden, 5 Taunt. 125 ; Pritchard v. Atkinson, 4 N. H. 1, 13 ; State v. Campton,
2 N. II. 513 ; Child v. Chappell, 5 Seld. 246 ; Carpenter v. Gwynn, 35 Barb. 395 ;
Schcnlcy v. Commonwealth, &c., 36 Penn. St. 29 ; Connehan v. Ford, 9 Wise.
240; Commonwealth v. Fisk, 8 Mete. 238; Scott v. State, 1 Snced. 633.
* Hoolc V. Attorney-General, 22 Ala. 190; Gould v. Glass, 19 Barb. 179;
Smith V. State, 3 N. J. 130 ; Hutto v. Tindall, 6 Rich. 396.
6 State V. Nudd, 3 Fost. 327.
190 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
In Jarvis v. Dean, four or five years use of a passage-way
by the public, witli the full assent of the owner of the soil,
was held sufficient to constitute it a thoroughfare.^ While
in Rugby Charity v. Merryweather, though, by fifty years'
use of a way as a thoroughfare, it was held to have
[*141] become a * public highway, which the owner of the
soil might not close, it would have been otherwise if
he had had a bar across the passage-way, which could be,
and occasionally was closed, as this circumstance bore upon
the question of intent.^
On the other hand, the court, in Woodyer v. Hadden, in.
speaking of the length of time requisite to effect a dedica-
tion, say : " If the act of dedication be unequivocal, it takes
place immediately ; for instance, if a man builds a double
row of houses opening into an ancient street at each end,
making a street, and sells or lets the houses, that is instantly
a highway." ^ User for a short time by express and une-
quivocal treatment of the strip of land as a street, is suffi-
cient.*
22. In some States, as will more fully appear, there are
statutes which prevent a way becoming a highway by a mere
dedication to and user by the public. There are cases where
the streets of a village, for instance, are laid out upon a plan
of lots, and these are sold in reference to the plan, whereby
the purchasers of the lots acquire rights of way along these
streets as easements appurtenant to their lots, and yet the
streets do not necessarily become dedicated to the public
use, though used by the people having occasion to do so.
Thus in Child v. Chappell, where a partition of a parcel of
1 Jarvis v. Dean, 3 Bing. 447.
2 Rugby Charity v. Merryweather, 11 East, 376, note. See Post v. Pearsall,
22 Wend. 425.
3 Woodyer ;;. Iladdcn, 5 Taunt. 125. See also Ilobbs i-. Lowell, 19 Tiek. 405 ;
Woolr. Ways, 10 ; Child v. Chappell, 5 SeUl. 2-16; Hunter v. Trustees of Sandy
Hill, 6 Hill, 407, 414 ; Ward v. Davis, 3 Sandf. 502 ; Phca v. Forsyth, 37 Penn.
St. 503; Missouri Institute, &c. v. How, 27 Mo. 211 ; State v. Atherton, 16 N.
H. 211.
* Bis.sell V. N. Y. Cent. R. R., 26 Barb. 035.
Sect. 5.] EASEMENTS BY DEDICATION. 191
land into lots was made, with a part left for a mill-yard and
a basin and a road, all laid down upon a plan, it was held
to bind the parties to permit the parts thus indicated to be
used for the purposes designated. " As between the par-
ties, their heirs and assigns," say the court, " it fixes the
servitude of a public way upon the land thus laid out as
streets." But the Judge (Morse) was of opinion, that such
an appropriation would not be a dedication as between the
owners and tlie public. " I take a dedication to the
public *of land for a public highway to be something [*142]
more than an act pf the owner of the laud. The
dedication is not complete or binding until accepted by a
public user, or some other indication of acceptance
As a rule of wisdom, the acceptance of a dedication of land
for public use may be presumed from the beneficial nature of
the dedication." ^ The necessity of an acceptance by the
public of a dedicated way before it can become a public way,
seems to be admitted as almost an elementary principle. The
difficulty lies in what shall be such an acceptance. Thus it
is stated in Gentleman v. Soule, there must be an intention
to dedicate on the part of the owner of the land, and an ac-
ceptance on the part of the public, evinced by acts such as
taking charge of and repairing the highway by the proper
county or town authorities. ^ In New Hampshire, it was held
that there must be an acceptance which may be shown by
twenty years' user without objection, or by making repairs
or setting up guide-boards or other official recognition.^
23. In the case of Clements v. West Troy, the proprietors
of that village laid out the same by a plan, upon w^iicli an
alley was laid down, and house-lots were conveyed bounding
on this alley. The court say: "As between the original
proprietors and those to whom they conveyed, this act of the
1 Child V. Chappell, 5 Seld. 246 ; post, chap. 2, sect. .3, pi. 6. See also Oswego
V. Oswego Canal Co., 2 Seld. 257 ; Clements v. West Troy, 16 Barb. 251 ; Com-
monwealth V. Rush, 14 Pcnn. St. 186.
2 32 111. 280; ante, p. *126.
3 State V. Atherton, 16 N. H. 210.
192 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
proj)rietors secured a right of way. But the alley thus des-
ignated, and in respect to which the purchasers of the lots
had acquired an indefeasible right of way, did not thereby
become a public highway. The dedication must be accepted.
The highway must be laid out. Until that is done, the alley
would remain the property of the original proprietors, sub-
ject to the right of way in those who had taken the deeds of
lots bounded upon the alley." ^
24. The case of Bowers v. Suffolk Manufacturing Co. serves
further to illustrate how far there may be acts of dedication
of ways as public ways, so that, though not actually dedicated
so as to become a highway, the public may use them so long
as they are kept open, and yet the proprietors of lands over
which they pass, and those to whose estates they are appur-
tenant, may still have all the rights in respect to the same as
if they were strictly private ways. It was one of the instances
where an easement may become appurtenant to each of many
estates by a process like that of dedication, and be com-
mon to them all, without becoming a public easement, and
without detracting from the right of each, to whose
[*143] *tenement the right of easement has become appur-
tenant, to seek a private remedy for any injury to his
own enjoyment of the same. The facts were these. Certain
proprietors of an extensive tract of land, water-power, &c.,
laid out R. Street over the same from a county road to H.
Street (which they also laid out), and marked R. Street for
a carriage-way and public travel, and the same was used by
any person having occasion to do so, no gate nor barrier hav-
ing been erected thereon. In 1832, after these acts done,
the proprietors sold to the defendants the lands lying on both
sides of the northerly end of R. Street, and the land over
which that part of the street was laid out, by an indenture
in which it was covenanted that the streets described therein
1 Clements v. West Troy, 16 Barb. 251. See Child v. Chappell, 5 Seld. 246;
Rhea V. Forsyth, 37 Penn. St. 503 ; ante, p. *129; Iloldcn v. Trustees, 23 Barb.
103.
Sect. 5.] EASEMENTS BY DEDICATION. 193
should be maintained as roads, " for the common use of the
parties hereto, their successors and assigns, each keeping in
repair those parts which pass over their respective estates,"
and referring to a plan on which R. Street was laid down
fifty feet wide from the county road to H. Street. In 1844
the proprietors sold the plaintiff a lot bounding on R. Street,
with all privileges and appurtenances, on which he built a
house and resided therein. Before this, four other house-
lots on R. Street had been sold by the proprietors to other
persons. In 1845 the proprietors sold at auction all their re-
maining lands on R. Street and in the neighborhood, refer-
ence being made to printed plans and conditions of sale.
And on this plan R. Street was laid down fifty feet wide.
One of the conditions of sale was as follows : " The streets
mentioned in the catalogue, and laid down on the plans, are
all to be reserved and kept open for the benefit of the abutters,
but they are not all graded. Any street reserved, and not
graded, may be altered or discontinued with the consent of
all the abutters thereon." There were twenty lots then sold
on R. Street, on which buildings were afterwards erected.
In 1846 the city laid out R. Street as a public street over a
part of the distance from the county road to H. Street, the
plaintiff's house being upon the part thus laid out.
In *1847 the defendants dug up R. Street at a point [*144]
beyond where it had been located as a highway, to-
wards H. Street, for tlie purpose of putting in hydraulic
works for their use, which rendered R. Street in that place
for the time impassable ; and when the work should be com-
pleted, it would permanently occupy and obstruct a part of
the fifty feet in width. For this obstruction the plaintiff
brought his action. The question was, whether the plaintiff,
as owner of a tenement on R. Street, had a right of action for
this obstruction, at a point remote from his own estate, no
special damage having been shown. It was insisted that, the
way having become public by dedication, the remedy was by
indictment, and that a private action would not lie without
13
194 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
showing actual damage to the plaintiff. The court held that,
though this was true if such were the fact, the street had not
been dedicated as a public highway. If it had simply been
opened and used, it might be evidence of an intent to dedi-
cate it. But in the deed of tlie land over which R. Street
was laid out, it was to be maintained for the common use of
the parties thereto, each keeping in repair those parts that
passed over his respective estate. And, at the auction, the
streets were reserved and kept open for the benefit of the
abutters, and any street not graded might be discontinued
by the consent of the abutters thereon. The use actually
made by the public could not alter the intention with which
the street was laid out, as thus indicated. But even if it was
the intention of the proprietors to dedicate the street, it could
only become such by the assent of the city, express or im-
plied, so as to make the city liable for its repair. The land-
owners, in such case, might not be entitled to maintain tres-
pass against any one who might pass over it while it remained
open.i g^(; ^^qj niight shut up the way, and the right of
passing over it would thereby be terminated, the opening of
the street being a license, and not a grant or dedication.
The court held that the action could be maintained.
[*145] " The plaintiff, by a grant from the proprietors *of
the land over which R. Street had been laid out by
them, did acquire a good title to the right of way claimed,
for the disturbance of wliich the defendants are liable."^
25. But where a street has been actually dedicated to the
public by the act and intent of the owner of the soil, and by
what shows an acceptance by the public, it becomes a public
highway, and the owners of the adjacent land, whether the
original proprietors or purchasers under them, have no other
rights in it than the adjoining owners of any other public
highway.^
1 Ante, p. *133.
2 Bowers V. Suffolk Mg. Co., 4 Cush. 332. Sec Rowan v. Portland, 8 B. Monr.
232.
3 Mercer v. Tittsburg, &c. R. R. Co., 36 Pcnn. St. 99. See ante, pi. 18.
Sect. 5.] EASEMENTS BY DEDICATION. 195
And one who shall obstruct a dedicated highway, would be
liable to an indictment, but not to a civil action by any one
to recover the land over which it is laid.^
26. Citations might easily be multiplied, where streets
have become dedicated as public lughways, so far, at least,
as the owner of the soil is concerned, although the same may
never have been opened or wrought. And among them are
cases where the owner of city lots has sold them by a plan on
which streets have been designated by the proper officers to
locate and establish the same, and has bounded the lots sold
by such streets. The soil of the streets in such cases is dedi-
cated thereby to the public use.^ And the same was held in
the case of the city of Pittsburg, without the same having
actually been designated as highways by an officer qualified
to locate the same.'^
26 a. In some of the Western States there seems to be,
sometimes by statute and sometimes by usage, a mode of dedi-
cating streets, public landings, quays, squares, <fe;c., in towns,
by the proprietors laying down and describing these by plats
upon the plan of the location of the town or village, and in
some cases causing this plat to be recorded for general refer-
ence. Tiiough, carrying out the notion of dedication at com-
mon law, these, in some measure, form a class by themselves.
Several of these cases have already been cited, A few others
have been collected for illustrating the subject. Thus, in
Minnesota, a statute provides for dedicating lands for city
purposes by recording a plat of the same duly acknowledged
by the owners thereof, and certified by the surveyor. If this
has been done it cannot be revoked by the owner. But if
^ Commissioners v. Taylor, 2 Bay, 291.
2 Matter of Thirty-second Street, N. Y., 19 Wend. 128; Matter of Twenty-
ninth Street, N. Y., 1 Hill, 189; Wyman v. Mayor of New York, 11 Wend.
486 ; Livingston v. Mayor of New York, 8 Wend. 85 ; Matter of Thirty-ninth
Street, N. Y., 1 Hill, 190 ; Matter of Seventeenth Street, 1 Wend 262, 270 ;
Vick I'. Vicksburg, 1 How. Miss. 379 ; Hector v. Hartt, 8 Mo. 448. See Under-
wood V. Stuyvesant, 19 Johns. 181, as to effect of commissioners refusing to
open the street. Dubuque v. Malony, 9 Iowa, 455.
8 Barclay v. Howell, 6 Pet. 498, 504.
196 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
streets are laid out by such plan or plans, they must have
been accepted on the part of the public in order to be effec-
tual. After they have been accepted they cannot be revoked.
And acceptance may be evidenced by their being used by the
public. The fee, however, remains in the dedicator.^
And although the plat or the record of it is defective, it
may become a yalid dedication, if the public accept it before
it is withdrawn by the owner.^
So, in Indiana, the laying down of streets, &c., on a town
plat, and recording the same, is a dedication of these to the
public.^
The dedication of streets, &c., by laying them down upon
plats of villages, is recognized as valid in Wisconsin.*
The same seems to be the law of Missouri, where all such
plats are required to be recorded.^
In Iowa, where an owner lays down upon the plat of a town
the streets, &c., and has it recorded, the title to such parts
as are set apart for public use, or charitable, educational, and
religious purposes, passes, thereby, to the public, but nothing
outside of the lines upon the plat. So that, where the line
of dedication next to the Mississippi river left a strip between
that and the bank, it was held not to be a dedication of that
strip. But no one but he who has the title can make a valid
dedication. Nor does the dedication take effect until the
public shall have accepted it.*^
In Louisiana, a dedication will not be proved by a mere
plat, unless the intention to dedicate the land is found on the
plat itself, such as a designation of it as a street, a square,
and the like.^
In Illinois, a dedication may be made by a survey and plat
alone, without any declaration either oral or on the plat,
1 Baker v. St. Paul, 8 Minn. 493, 494 ; Schurmcier St. P. & Pac. R. R., 10
Minn. 108.
2 lb. 491. 8 Evansvillc v. Page, 23 IikI. 527.
* Sanborn v. Chicago, &c. R. R., 16 Wise. 19; Yates v. Judd, 18 Wise. 118.
6 Rev. St. e. 148 ; Callaway Co. v. Nolley, 31 Misso. 393.
8 Cowles V. Gray, 14 Iowa, 1 ; Grant v. Davenport, 18 Iowa, 186.
T David V. New Orleans, 16 Louis. An. 404.
Sect. 5.] EASEMENTS BY DEDICATION. 197
where it is evident, from the face of the plat, that it was the
intention to set apart certain grounds for puhlic uses, even
if the ways shall not have been actually used by the public.
And such a plat of a town and street may operate as a dedi-
cation of the ways, though not so recorded as to pass the fee
to the city corporation.^
26 b. But while it is not difficult to lay down intelligible
rules as to what shall be an act of dedication, it is far more
difficult to define what is to be received as sufficient evidence
of an acceptance on the part of the public to consummate and
give effisct to such dedication. In Connecticut, the court
divided upon the point, two of the judges holding that some-
thing more than mere user by the public was requisite to
constitute the acceptance of a dedicated way.^
But in a subsequent case, the court reviewed the law of
dedication, and held that, as there are no statutes upon the
subject, it is governed by the common law, that if one dedi-
cates his land to the public, he is estopped from recalling the
act, and an acceptance by the public may be presumed, if
the thing dedicated be of public convenience and necessity,
and therefore beneficial to the public. Among the direct
evidences of this would be an express acceptance by the
town, a reparation of the way, fof instance, by its officers,
a tacit acquiescence in its public use, recognizing it in
maps, boundaries in deeds, or reference to it in advertise-
ments, and especially its public use as a highway* without ob-
jection, by all who have occasion to use it as such.^
By the English common law, any man might dedicate a
highway to the public, which thereupon was to be kept in re-
pair by the people of the parish or township. But this was
altered by the statute of 5 & 6 Will. IV., requiring sundry pre-
liminary things to be done before such a way can be made a
public charge.*
1 Waiit;h V. Leech, 28 111. 492; Godfrey v. Alton, 12 111. 35; Banks v. Ogden,
2 Wall. U. S. .57.
2 Green v. Canaan, 29 Conn. 172.
8 Guthrie v. New Haven, 31 Conn. 321.
* Reg. V. Dukinfield, 4 B. & Smith, 172.
198 THE LAW OF EASEMENTS AND SERVITUDES. [Cir. I.
The question has come up, several times, in Vermont. In
the first of these it was held that mere use of a way hy com-
mon travel was not enough, it required some act of the town
by their officers recognizing the road to be a public highway,
to make it such.^ In the next, a miller had opened a way
from his mill to the highway, and it had been used for many
years. But the court held, that though a way may be proved
to be a highway by its having been recognized as such by a
town, by doing labor upon it, or authorizing the surveyor
to collect and expend the highway tax upon it, no indi-
vidual can lay out a way for his benefit, and compel the
town to adopt it.^ But in the next case it was held that the
town might adopt a highway for travel, and thereby become
liable on account of the same. If the town or selectmen as
their agents were to shut up an old road, and have no other
avenue for travel except on a road which they had made or
caused to be worked, or if they put the same into the rate-
bills of the highway surveyors on which the highway tax is to
be worked, the town would be liable. But the consent merely
of the selectmen, that any person should travel on any path,
whether a public or private road, is no act by which the town
is made responsible, nor would the knowledge of the select-
men, that the traveller supposed it to be a public highway,
have that effect.^
The last of the cases was one where a bridge in a highway
had been carried away, and the public had used a ford across
the stream, wiiich was wholly outside of the line of location
of the original way, for the term of twenty days, and the
question was, if the town were liable for the condition of this
ford as being a dedicated way. The court say, that to make
a public way by dedication, there not only must be a dedica-
tion by the owner of the land, but an acceptance by the
town. Nor would acts of highway surveyors adopt such a
1 Bailey v. Fairfield, Brayt. 128.
2 Paige V. Weathersfield, 13 Venn. 429.
8 BloJiieu V. Uoyalton, 14 Verm, 294.
Sect. 5.] EASEMENTS BY DEDICATION. 109
road, since that is not within their agency. Nor is it enough
that the town has suffered the way to be travelled. But
Redfield, C. J., in a dissenting opinion, held that the town
would be liable, if they suffered a road to remain open to
public use, and one sustained an injury by reason that the
same was unsafe for such use.^
In Michigan, although the governor and judges of the
Territory, in laying out the city of Detroit, had laidt down
streets and alleys upon the plat, it was held that before this
dedication could become effectual in respect to any of these
streets, it must have been accepted by the proper authorities
on behalf of the public, and manifested by some act, such as
ordering it to be opened, or doing acts of improving or regu-
lating the same.2
In Illinois, where a canal company had erected a bridge
over the canal, in a street of the town, it did not render the
town liable in consequence of its condition, unless the town
had adopted it as a way, or the approaches to it had been
constructed by the town, fitting it for use by the public, and
the like.3
In New York, the question has come up in different forms,
and it is difficult to draw from the cases any uniform rule
upon the subject. Thus it is said that a way may be dedi-
cated, and will become a highway, when laid out as such by
the constitute(J authorities, by an acceptance of the dedica-
tion by those authorized to act for the public. But it is not
competent for an individual, by a simple act of dedication,
to impose upon the public the burden and responsibility of
maintaining a highway. Nor will the mere use of the way
by the public make an acceptance, if for a less time than
twenty years. Nor could the public prosecute the one who
had dedicated it, for having shut it up before the same was
accepted.*
1 Hyde v. Jamaica, 27 Verm. 443. See Coggswell v. Lexington, 4 Cush. 307.
2 Tillman v. People, 12 Mich. 401 ; People v. Jones, 6 Mieh. 176.
3 Joliet V. Verby, 35 III. 58.
* Trustees, &c. v. Otis, 37 Barb. 50.
200 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
In another case the court held that the acceptance must be
by some express corporate or official act, or by user, distinct
and unequivocal, of such street as a public road or highway.^
But in Holdane v. Trustees, it was held by the other judges,
against Strong, J., that a dedicated way may acquire the
character and qualities of a highway, if it has been openly
used as such, though there had been no formal act of ac-
ceptance done by the public authorities, and that it then be-
comes a way for all persons.^
And in one case in Massachusetts, where streets had been
laid out in anticipation of the future wants of the town, and
a plan of tliese made which was regarded as a dedication of
these by the owners of the land, it was held that appropri-
ating money and labor in working any of these, was an ac-
ceptance of such as were thus wrought by the town, and
made them " complete highways." ^
27. But in case of the dedication of a public square for
the accommodation of county buildings, for instance, and
they are erected upon another locality, or for that of a
church, which is erected and afterwards removed
[*146] to another *locality, the owners of the soil may re-
sume the possession and occupancy of the land, and
the public right therein ceases. It might be otherwise if,
under such a dedication, the square had been enclosed and
ornamented for public use, and the public had actually en-
joyed it for purposes aside from a mere space for the accom-
modation of the public buildings.^
28. In Trustees of Watcrtown v. Cowen, this doctrine
seems to be extended to all cases where, to use the language
of the court, " the owners of urban property have laid it out
into lots, with streets and avenues intersecting the same, and
have sold their lots with reference to such plat. It is too
1 Bissell V. N. Y. Cent. E. R., 26 Barb. 634.
2 23 Barb. 123.
8 -.Wriglit V. Tukey, 3 Cush. 295.
* Commonwealth v. Fisk, 8 Mctc. 238, 24.5 ; State v. Trask, G Vt. 355.
Sect. 5.] EASEMENTS BY DEDICATION. 201
late for them to resume a general and unlimited control over
the property thus dedicated to the public as streets, so as to
deprive their grantees of the benefit they may acquire, by
having such streets kept open. And this principle is equal-
ly applicable to the case of similar dedications of lands in a
city or village, to be used as an open square or a public
walk." 1
29. But although the mode of dedicating land to the pub-
lic use may be substantially the same, whether it be for a
highway, a public square, or a public common, yet the uses
and purposes intended being different, the character of the
easements acquired in the lands dedicated will vary accord-
ing to the nature of these uses. Thus, if it be a public way,
every one may pass over it at his will and convenience, in
any usual and suitable mode of travelling. But if it be a
public common or square in a village, the same may be en-
closed, improved, and ornamented in any suitable manner
by the authorities of the town or village, at their discre-
tion, for purposes of health, recreation, or business,
*and the public must conform to these in their use [*147]
of the same.^
Nor will the law extend an easement, which is claimed by
construction from an alleged dedication by a sale of city lots,
in which reference is made to plans, &c., beyond what may
fairly be supposed and understood to be appurtenant to the
particular lot sold, and to be enjoyed therewith. Thus,
upon the sale of a township, a plan of the lots into which it
was divided was exhibited at the sale, having streets, squares,
&c., thereon, and, among other things, lots designated as sites
of churches. One of these was indicated as the site of a Bap-
tist church, although no such society had then been organized.
1 Trustees of Watertowu v. Cowen, 4 Paige, 510; Rives v. Dudley, 3 Jones,
Eq. No. C. 126. See Barclay v. Howell, 6 Pet. 498, 507, as to eifect of misapply-
ing lands dedicated for particular purposes.
2 Langley v. Gallipolis, 2 Ohio St. 107 ; Rowan v. Portland, 8 B. Monr. 232 ;
Wellington Petitioners, 16 Pick. 87; Commonwealth v. Rush, 14 Penn. St. 186,
190.
202 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. I.
Such a society subsequently took possession of the lot, and
erected a church thereon, and proposed to sell the remainder
of the lot. The other purchasers of lots objected, and in-
sisted that they had an easement in this lot, not to have it
appropriated to other than church purposes. Nothing had
been said in the deeds of any of the lots of any easements
belonging to the same, and the court held that no such right
as was here claimed passed as incident to the lots at the time
of the original purchase.^
30. But it is not, after all, the laying down of streets or
squares upon the plat of a contemplated city or village, even
though the same may be publicly exhibited or declared by
the proprietors thereof, that constitutes a dedication of these
to the public. There must be a sale of some of these lots,
having reference to such streets or squares, and some adop-
tion thereof by the public as such, in order to create a dedi-
cation of these to the public use.^
[*148] *31. And in several of the States, a mere user of
streets or ways, as such, by the public, does not con-
stitute an acceptance or adoption of them as highways by
dedication, unless there shall have been a location of the
same, as public ways, by the proper officers of the town, city,
or county, authorized by the statutes of the State to make
such location. The statutes in these States supersede or
control the common law in this respect. Such is understood
to be the case in New York, Virginia, and Massachusetts.^
The above cases in New York were those of streets or ways
laid out by the proprietors of village lots. And in that of
Clements v. West Troy, the court say : " It is assumed in all
1 Chapman v. Gordon, 29 Ga. 250.
2 Logansport ». Dunn, 8 Ind. 378 ; Child v. Chappcll, 5 Seld. 246; Badeau
V. Mead, 14 Barb. 328; People v. Beaubien, 2 Dougl. Mich. 256; Rowan v.
Portland, 8 B. Monr. 232 ; Vick v. Vicksburg, I How. Miss. 379 ; Westfall v.
Hunt, 8 Ind. 174; People v. Jones, 6 Mich. 176; Tillman v. People, 12 Mich.
40.') ; Bissell v. N. Y. Cent. R. R., 26 Barb. 634 ; David v. N. Orleans, 16 Louis,
An. 406. See Green v. Canaan, 29 Conn. 171 ; Elsworth, J., dissenting opinion.
^ Oswego V. Oswego Canal Co., 2 Seld. 257 ; Clements v. West Troy, 16
Barb. 251 ; Commonwealth v. Kelly, 8 Gratt. 632.
Sect. 5.] EASEMENTS BY DEDICATION. 203
these cases that the mere dedication of a street to a public
use does not make it a public street, until the dedication is
ratified by the public authorities. Tlie same proceedings
must be had for opening or laying out such street as if there
had been no dedication." ^
32. In Connecticut, it seems all that is necessary to create
a way dedicated to the public a public highway, is evidence
that it has been used as such and accepted as such, and this
may result from a public use and enjoyment, though such
use have not continued for the ordinary period of prescrip-
tion. ^
It seems, therefore, to be a mere question of evidence of
acceptance, for it was said in Holmes v. Jersey City, that
" an individual cannot, by opening a road upon his own land,
burden the public with maintaining and repairing it, or
constitute it a public highway, within the meaning of the
road act. The public were at liberty to accept this dedi-
cation in whole or in part, or utterly to disregard
it *Tlie mere fact of dedication by map and [*149]
survey, and the opening the streets as laid out, did
not constitute them public highways, until such street was
in some way accepted and ratified by public authority." ^
33. The subject has been, of late, fully considered in Mas-
sachusetts, in connection with a statute of that State relating
to the same. The case of Hobbs v. Lowell, decided in 1837,
was the first in which the doctrine of dedication of a high-
way was adopted in that State. In 1846 a statute (chap.
204) was passed, declaring that " No way hereafter opened
and dedicated to tlie public use shall become chargeable
upon any city or town, unless laid out in a manner pre-
scribed by statute. The general statutes adopt this pro-
1 Clements v. West Troy, 16 Barb. 251, 253.
2 Curtiss I'. Hoyt, 19 Conn. 154; Noyes v. Ward, 19 Conn. 250, 2G5. See
also, in New Jersey, Holmes v. Jersey City, 1 Beasl. 299 ; and, in Louisiana,
David V. 2d Municipality, 14 La. Ann. 872.
2 Holmes v. Jersey City, 1 Beasl. 299, See David v. 2d Municipality, 14 La.
Ann. 872.
204 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
vision, and also declare that a mere grading of a street, in
pursuance of an order of the officers of a city or town, shall
not be construed a dedication of the same to the public use.^
The case of Jennings v. Tisbury,^ before cited, was one
where the way had become public by prescription, and in
Hayden v. Attleborough,^ the court held the town liable,
they having, without any formal dedication of the way,
treated it as such, and assumed to work and repair it as a
highway.
But in Bowers v. Suffolk Manufacturing Company,* the
court were inclined to deny that a way could, after the stat-
ute of 1846, become a public one by dedication. And in
Morse v. Stocker,^ the court use this language : " No way
or street could be made a public way by merely throwing it
open to the public, or permitting the public to use it, with-
out tlie assent of the public authorities, and its ac-
[*150] ceptance *by them as a street ; and this assent and
acceptance, after the statute of 1846, could only be
given by laying out the street according to the ordinary
mode prescribed by law."
And in Gurney v. Ford, where there was a public high-
way near a mill, and out of this a lateral way led across the
stream, around the mill, and back again into the public way,
which people were accustomed to use in going to the mill,
and when the highway in that place was out of repair, and
when they wished to water their horses at the stream, it was
held not to have become a highway, the town never having
done anything to it as such.^
34. But the limitation of the power of dedicating lands
to public uses in Massachusetts, under the statute, as well
1 Hol)hs V. Lowell, 19 Tick. 405 ; Mass. Gen. Stat., chap. 43, §§ 82, 86.
2 Jennings v. Tisbury, 5 Gray, 73.
3 Hayden v. Attleborougli, 7 Gray, 338. See also Wright v. Tukey, 3 Gush.
295.
* Bowers v. Suffolk Mg. Go., 4 Gush. 332, 340.
6 Morse v. Stocker, I Allen, 150. Sec Durgin v. City of Lowell, 3 Allen, 398.
^ Gurney v. Ford, 2 Allen, 576.
Sect 5.] EASEMENTS BY DEDICATION. 205
as in otlicr states, seems to be confined to ways, and is
adopted for the purpose of avoiding tlie liability to which
towns might otherwise be subjected in case of a want of re-
pair of such ways. But the law remains, it would seem, as
at common law, in respect to public squares and other sub-
jects of dedication.
35. And it may be added, that, as to ways, it is not com-
petent for the public to make them public without their
being located by proper authority, and thereby to impose
duties and burdens, in respect to the same, upon the land-
owners, by a mere use of them against the intention of sucli
land-owners to dedicate the same. Thus, where the public
were accustomed to go over the land of a corporation which
had constructed a private way for the accommodation of the
dwelling-liouses of their operatives, and a person travelling
through the same sustained an injury from an alleged want
of repair, it was held that the city was not liable therefor.^
So, where the public were in the habit of going across an-
other's land to shorten the distance of the neighbor-
ing highway, but in so doing were *trespassers, the [*151]
same being against the wishes of the land-owner, it
was held that the public had not, by these successive tres-
passes, acquired such a right of way over said land, that, if
the owner have occasion to dig a pit in his land, and a per-
son passing over the same were to fall into it, he could have
an action to recover damages occasioned by such injury .^
And where the owner of land in a city laid out a street
over it, and sold house-lots thereon, but did not dedicate the
same to the public, nor had the public used it but a part of
the distance, on account of obstructions therein, but had
been permitted for many years to pass over a part of it, and
the officers of the city undertook to order the grade of the
street under the stat. 1853, chap. 135, and to require the own-
ers of the street to cause the same to be made, it was held that
1 Durgin v. City of Lowell, 3 Allen, 398.
2 Stoue c. Jackson, 16 C. B. 199 ; Commonwealth v. Fisk, 8 Mete. 238.
206 THE LAW OF EASEMENTS AND SERVITUDES. [ [Cu. I.
the act was unconstitutional, inasmuch as the owners had a
right to use their land as they saw fit, in a manner not inju-
rious to others ; and permitting it to he used by the public
did not make it public property, since it was a mere license,
revocable at pleasure.^
So in TVoodyer v. Hadden, the owner of the land opened
a cul de sac from a public street in a city, upon which ho
built houses on each side, and the same was closed at one
end by a fence between his and the land of an adjoining
owner ; and this had been opened in this state for twenty-
one years, and had had houses upon it for nineteen years,
when the latter owner removed this fence so as to open thd
cul de sac into a way across his land. It was held not to be
a way dedicated to the public use, because the evidence
showed that such was not the intention of the owner when
he opened it.^
36. "Without attempting further to lay down any
[*152] general *rules whereby to distinguish between a pub-
lic use by license, and a dedication of ways, public
squares, and the like, the following cases may be referred to
as illustrations from which these rules may be drawn in their
application to particular cases. Thus it is said : " To lay off
a road through one's plantation, and for his own convenience,
cannot be construed into a dedication of it to public use.
If it has become a public market-road, or even if he had
permitted a church or other public buildings to be built at
the end of the avenue, it might have admitted of that con-
struction." ^
37. In Gowen v. Philadelphia Exchange Co., Gibson, C.
J., while commenting upon the difference between a dedica-
tion and a license, and whether the one construction or the
other should be ascribed to the fact of leaving an open space
1 Morse V. Stocker, 1 Allen, 150; Mass. Gen. Stat., chap. 43, § 85.
2 Woodycr v. Iladdcn, 5 Taunt. 125. See Woolr. Ways, 11. People v.
Jackson, 7 Midi. 432 ; Tillman v. People, 12 Mich. 400 ; Hoklanc v. Trustees,
23 Barb. 103. But see Wi;.'gens v. Tallmadge, 11 Barb. 457.
8 Witter V. Harvey, 1 M'Cord, 67.
Sect. 5.] EASEMENTS BY DEDICATION. 207
before one's premises which is accessible to the public, refers
to cases where it has been held that, by opening a street
which is closed at one end, the owner indicates decisively
that it is not intended to be a thoroughfare. And he adds :
" There are a thousand circumstances connected with a
man's calling which imply a license to enter his premises,
subject to his regulation and control. The publican, the
miller, the broker, the banker, the wharfinger, the artisan,
or any professional man whatever, licenses the public to enter
his place of business, in order to attract custom. But when
the business is discontinued, the license is at an end. It is
a license which is dependent on the use of property to which
it is annexed, and which cannot, without permission of the
owner, be annexed to anything else." And it was accord-
ingly held, that a piece of land left open for the accommoda-
tion of the owner was not thereby dedicated to the public.^
On the other hand, where the owner of a narrow strip of
land, lying between the highway and the enclosed
land of a *third party, suffered this strip to lie uncn- [*153]
closed, it was held to be so far a dedication of it to
the public, that an action would not lie for passing over it
against a stranger, as otherwise it would serve as a trap to
the traveller.^
38, In the case of New Orleans v. United States, the dedi-
cation was of a quay along the bank of the river, on which
goods were landed from vessels. It was held that, not only
was the quay dedicated to the use of the city, but that it car-
ried with it, and embraced within such dedication, the grad-
ual increment by alluvion formed by the river. It was also
held that, where public land had been dedicated by the gov-
ernment to a public use, it was withdrawn from commerce ;
and so long as it continued to be thus used, it could not be-
come the property of an individual.^
1 Gowen v. Philadelphia Exchange Co., 5 "Watts & S. 143.
2 Cleveland v. Cleveland, 12 Wend. 172.
.3 New Orleans v. United States, 10 Pet. 662, 712 ; Kector v. Hartt, 8 Mo. 457 ;
Commonwealth v. Alburger, 1 Whart. 469, 485.
208 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
But the public have no highway along the margin of the
navigable rivers and lakes in New York, unless the same
shall have been acquired by express grant or prescription. ^
39. In State v. Trask, a deed had been made by a grantor
to individuals who were empowered to convey the premises
to the county, to be used as a yard or green for the State
and county buildings. It was held that this deed was evi-
dence of an intent to dedicate the land to public use, and it
did not require a second deed to the county to effectuate
this ; that if such second deed had been made, and the
county had, by deed, relinquished the land, it would not
have defeated the dedication, — a dedication to the public
being in its nature irrevocable. " All that seems necessary,"
say the court, " is that the owner shall clearly manifest an
intention to dedicate the land to public use, and that the
public should, relying upon that manifestation, have entered
into the use and occupation of it, in such manner as renders
it unjust and injurious to reclaim it It is not only
necessary that there be some act of dedication on the part of
the owner, but there must also be something equivalent to
an acceptance on the part of the public Towns
[*154] *and cities may be projected, streets, public squares,
and roads may be laid out ; but if no town or city
is built, there is no effectual dedication." It was held fur-
ther, that there might be a partial acceptance of what had
been dedicated, and beyond such partial acceptance the dedi-
cation would be defeated.^
40. In the case of Abbott v. Mills, the dedication was of
a public square left in a village, around which the inhabi-
tants had built their houses ; and it was held a sufficient
dedication, that the proprietors of the town had exhibited
such a square upon the plan of the town, and had suffered
persons to go on and incur expense in erecting their houses,
1 Ledyard v. Ten Eyck, 36 Barb. 127.
2 State V. Trask, 6 Vt. 3.5.5, 364, 367 ; Commonwealth v. Fisk, 8 Mctc. 238,
243, 244. See Noyes v. Ward, 19 Conn. 250 ; Oswald v. Grcnci, 22 Texas, 94';
Cincinnati v. Wiiite, 6 Put. 431.
Sect. 5.] EASEMENTS BY DEDICATION. 209
although they had not marked off the same by monuments
upon the ground, and they were accordingly prohil)ited from
making use of the land for purposes inconsistent with its use
as a public square.^
And it was held, in the above cases from the Vermont re-
ports, that " the enjoyment of a public highway, square, com-
mon, or other common privilege or immunity, for a period
short of fifteen years (the period of limitation), may afford
conclusive evidence of a right so to do." ^
41. The subject of dedication of lands to public uses is
fully considered in Hunter v. Trustees of Sandy Hill, by the
court of New York, in which several of the cases above cited
are referred to. " Lands," say the court, " may be dedi-
cated for pious and charitable uses, as well as for public
ways, commons, and other easements in the nature of ways,
so as to conclude the owner who makes the dedication
A dedication may be made without writing, by act
in pais, *as well as by deed. It is not at all ncces- [*155]
sary that the owner should part with the title which
he has, for dedication has respect to the possession, and not
the permanent estate. Its effect is not to deprive a party of
his land, but to estop him, while the dedication continues in
force, from asserting that right of exclusive possession and
enjoyment which the owner of property ordinarily has.
Where, as in the case of a highway, the public acquire but
a mere right of passage, the owner, who makes the dedica-
tion, retains a right to use the land in any way compatible
with the full enjoyment of the public easement." ^
But if he or any other person put obstructions in such way
as renders the travelling over it unsafe, he who placed them
1 Abbott V. Mills, 3 Vt. 521 ; State v. Catlin, 3 Vt. 530 ; Pomeroy v. Mills, 3
Vt. 279; State v. Wilkinson, 2 Vt. 480; Cincinnati v. White, 6 Pet. 431;
Cady V. Conger, 19 N. Y. 256; Doe v. President, &c. of Attica, 7 lud. 641;
Commonwealth v. Rush. 14 Penn. St. 186.
- Abbott V. Mills, 3 Vt. 521 ; State v. Catlin, 3 Vt. 530.
3 Hunter v. Trustees of Sandy Hill, 6 Hill, 41 1 ; Tallmadge v. E. Eiver Bank,
26 N. Y. 108 ; Dubuque v. Malony, 9 Iowa, 455, 456.
14
210 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. I.
•
there would be liable in damages to any one who should re-
ceive an injury while passing over it with proper care.^
But if there be an erection or excavation existing in the
way, when it is dedicated, the owner is not liable for acci-
dents thereby occasioned. The public accept the way sub-
ject to the inconvenience or risk arising from the existing
state of things.^
42. Though the doctrine of the case above, of Trustees
of "Watcrtown v. Cowen,-^ may be considered as settling the
respective rights of the owner of the soil of such a street
or square, and of those who may have built houses or pur-
chased lots bounding upon the same, it docs not seem to
cover the question how far the public can be made respon-
sible for the safe condition of such streets, when used by
others for the general purposes of a way or thoroughfare.
In one case in England, Baylcy, J. held tliat tliere might
be a dedication of a way to the public by the land-owner,
and yet the public not be liable for the repair of the same ;
and that to make a parish liable for repairs of a way, there
must have been some act of acquiescence or adoption of it as
a public way on their part.*
Whatever may be the rule of law applicable to the
[*156] cases *above supposed, it seems to be now settled
that the proper authority to take charge of what has
thus been actually dedicated is the local corporate body
within which the same is situate, having charge of similar
interests, and this from the incapacity of an indefinite entity
like " the public " to manage or take care of the same.^
A question of this kind came up in respect to a public
square in Philadelphia, which Penn had dedicated to the
1 Corby V. Hill, 4 C. B. n. S. 556.
2 i'islier V. Prowse, 2 B. & Smith, 770; Robins v. Jones, C. B. 26 Law Rep.
291.
■^ Trustees of Watertown v. Cowen, 4 Paige, 510.
* The King v. St. Benedict, 4 Barncw. & Aid. 449. See Ilobbs v. Lowell, 19
Pick. 405.
6 2 Smith, Lead. Cas., 5th Am. cd. 222.
Sect. 5.] EASEMENTS BY DEDICATION.
211
city. It was held that, after such a dedication, the owner
of the soil could not grant away an exclusive right to any
part of it. Nor could any length of occupation destroy the
right of the public, in the absence of positive statute, short of
a strict prescription. " Public rights cannot be destroyed
by long-continued encroachments ; at least, the party who
claims the exercise of any right inconsistent witli the free
enjoyment of a public easement or privilege must put him-
self on the ground of prescription, unless ho has a grant or
some valid authority from the government When
property is dedicated or transferred to public use, the use
is indefinite, and may vary according to circumstances. The
public being unable themselves to manage or attend to it,
the care and employment of it must devolve upon some local
authority or body corporate as its guardian, who are in the
first place to determine what use of it, from time to time, is
best calculated for the public interest, subject, as charitable
uses are, to the control of the laws and the courts, in case of
any abuse or misapplication of the trust. The corporation
has not the right to these squares, so as to be able to sell
them, or emjiloy them in any way variant from the object
for which they were designed." ^
43. It was held that, where a township had been laid out
by a plan showing streets, landing-place, &c., and
the lots *were sold, it constituted a dedication of [*157]
these to the public. Yet where an individual en-
closed a part of the land thus dedicated, and held exclu-
sive possession of the same for twenty years, he gained a
valid prescriptive title to the same.^
So where an owner had dedicated a lot of land to a town,
in a manner recognized by the law of Missouri, and after-
wards sold the same to one who enjoyed it long enough to
1 Commonwealth v. Alburger, 1 Wliart. 469, 485. Sec Commonwealth v.
Rush. 14 Penn. St. 186; Trustees of Watertown v. Cowen, 4 Paige, 510; Du-
buque V. Malony, 9 Iowa, 460.
2 Alves V. Town of Henderson, 16 B. Monr. 1.31, 172; Rowan v. Portland, 8
B. Monr. 232 ; Knight v. Heaton, 22 Verm. 480.
212 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. I.
gain a prescriptive right, under ordinary circumstances, it
was held that the town was thereby barred of any rights
gained by dedication.^
So where the public forebore to use what was dedicated
as a way, for the term of twenty-five years, and in the mean
time the grantees of the land continued to occupy it exclu-
sively, it was held that the public had lost their right in the
premises.2
1 Callaway Co. v. Nolley, 31 Misso. 393.
2 Baldwin i-. Buffalo, 29 Barb. 396 ; Commissioners, &c. v. Taylor, 2 Bay,
292.
'5=CHAPTER II. [*158]
EASEMENTS AND SERVITUDES OF WAY.
Skct. 1. "Ways defined, and how they affect the Right of Freehold.
Sect. 2. Of Ways of Necessity.
Sect. 3. Of Ways created by Grant.
Sect. 4. IIow Ways may be used.
Sect. 5. Rights of the Owners of the Land and of the Way, in the Land.
SECTION I.
WAYS DEFINED, AND HOW THEY AFFECT THE EIGHT OF FREEHOLD.
1. Rights of servitude do not affect general rights of property.
2. Rights of laud-owners in the soil of highwaj-s.
5. Of ways, and their several classes.
4. Divisions of ways in the civil law.
6. Ways v^hen in gross and when appendant, &c.
1. Passing from the modes in which easements may be
acquired, to the rules which apply to the several classes
into which they are divided in reference to the subject-
matters to which they relate, it may be remarked, that the
existence of a servitude upon an estate does not affect the
general rights of property in the same. All these remain,
subject only to the enjoyment of the existing easement.
Thus it is no objection to the owner of the fee maintaining
a writ of entry against one, that he has an easement of a
right of way over the demanded premises. The rights are
independent, and each owner may have an appropriate ac-
tion to vindicate or establish his right, — the one to pro-
tect his seizin, the other to prevent the disturbance of his
214 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. II.
[*159] *casement without having any right to recover the
land itself in a real action.^ And yet it has been
held, in Pennsylvania, that the existence and exercise of a
private way over granted premises, is an eviction, pro tanto,
so far as to be the ground of an action upon the covenant of
ivarraniy in a deed.^
2. Highways, for instance, are regarded as easements.
The public acquire, by their location, a right of way, with
the powers and privileges incident to that right, such as dig-
ging the soil, using the timber and other materials found
within the limits of the road, in a reasonable manner, for
the jDurpose of making and repairing the road and its bridges.
The former proprietor of the soil still retains his exclusive
right in all the mines, quarries, springs of water, timber,
and earth, for every purpose not incompatible with the pub-
lic right of way. The person in whom is the fee of the road
may maintain trespass, or ejectment, or waste, in respect to
the same. And upon the discoutinuance or abandonment
of the right of way, the entire and exclusive property and
right of enjoyment revest in the proprietor of the soil.^
And this doctrine extends to railroads as well as high-
ways.^ But the language of Story, J. on this subject, is as
follows : " Where a highway is made over another man's
land, the soil still remains in the owner subject to the ease-
ment. If there are trees on it they are his. If it be neces-
1 Morgan v. Moore, 3 Gray, 319 ; Hancock v. Wentwortli, 5 Mete. 446 ; Jer-
man v. Mathews, 2 Bail. 271; Atkins v. Bordman, 2 Mete. 457; Winslow v.
King, 14 Gray, 321 ; Miller v. Miller, 4 Pick. 244 ; Perley v. Chandler, 6 Mass.
454; Pomeroy v. Mills, 3 Vt. 279 ; Matter of Seventeenth Street, 1 Wend. 262;
Viner, Abr., Chiinin Private, B. ; Underwood v. Carney, I Cush. 292 ; O'Linda
V. Lothrop, 21 Pick. 292 ; Green v. Chelsea, 24 Pick. 71 ; Lade v. Shepherd, 2
Strange, 1004; Jackson v. Hathaway, 15 Johns. 447; Westbrook v. North, 2
Me. 179 ; Maxwell v. M'Atee, 9 B. Monr. 20.
2 Wilson V. Cockran, 46 Penn. 233.
^ Jackson v. Hathaway, 15 Johns. 447 ; Westbrook v. North, 2 Me. 179; Eob-
bins ;;. Borman, 1 Pick. 122; Adams v. Emerson, 6 Pick. 57; Harback v. Bos-
ton, 10 Cush. 295; Harris v. Elliott, 10 Peters, 55; Hollenbcck v. Eowley, 8 Al-
len, 473; Lyman v. Arnold, 5 Mason, 198.
^ Blake V. Kicii, 34 N. H. 282 ; Quimby v. Verm. Cent. 11. R., 23 Verm. 387.
Sect. 1.] WAYS DEFINED. 215
sary to cut them and remove them in order to make the
highway, still tlie proi)erty in tlie trees so cut down is un-
changed."^ If tlie adjacent owner of lands enclose a portion
of the higliway by a fence, and keep the same so enclosed for
forty years, under a claim of right, he thereby acquires a
right to maintain his occupation as against the public.'-^
And the owner of the soil may maintain an action of eject-
ment against any one who shall erect a permanent structure
upon the soil of a higliway or public landing-place, to the
exclusion of the public and the owner.'^
The proprietors of West Boston Bridge, however, acquired
the fee of the land conveyed to them, though created a cor-
poration for the construction and maintenance of a public
bridge.'^
* 3. One of the most common class of easements [*160]
or servitudes known to the law is that of Wat/s, or
the right of one man to pass over the land of another in some
particular line. " A way, ex vi termini, imports a right of
passing in a particular line."^
And it seems that A could not claim a way from one part
of B's land to another part, over B's land, though he may
claim such way from one part of his own land, over B's, to
another part of his own.^
These ways are of various kinds, though classed into four
by Mr. Woolrych, in his treatise upon the subject, to wit :
Foot-ivays ; Foot-ivaijs and Horse-ioays ; Foot, Horse, and
Carriag-e-ways; and Drift-ivays?
1 Lyman v. Arnold, 5 Mason, 198. This is regulated by statute in Massachu-
setts. Such trees are forfeited if not removed by the owner in a prescribed time.
Gen. St. c. 4.3, § 13.
2 Cutter V. Cambridge, 6 Allen, 20. See Fox v. Hart, 11 Ohio, 414; Knight
v. Heaton. 22 Verm. 480.
3 Gardiner v. Tisdale, 2 Wise. 153; Goodtitle v. Alker, 1 Burr. 133; Blake v.
Rich, 34 N. H. 284 ; Barclay v. Howell, 6 Peters, 498.
* Harlow v. Rogers, 12 Cush. 291.
5 Jones V. Percivai, 5 Pick. 485; Jennison v. Walker, 11 Gray, 426.
6 Staple V. Hcydon, 6 Mod. 3.
7 Co. Litt. 56 a ; Woolr. Ways, 1.
216 THE LAW OF EASEMENTS AND SERVITUDES. [Cu. II.
A grant of " a way " over one's premises will be under-
stood to be a general way for all purposes.^ A " carriage-
way " always includes a " foot-way," ^ So it does a " horse-
way," but not a " drift-way." ^ A " drift-way " is a common
way for driving cattle, and was held to intend a way fur the
passage of teams.* A right to " lead " manure is a right to
carry it in a cart, since "leading" implies "drawing in a
carriage." And a way " on foot, or for horses, oxen, cattle,
and sheep," does not give one a right to carry manure in a
wheelbarrow, although he who wheels it travels on foot.^ A
" way of necessity " extends only to a single track or way.^
And where one grants a right of way across his land, he may
shut the termini of the same by gates, which the grantee
must open and close when using the same, unless an open
way is expressly granted.''
4. The division of ways, by the civil law, was into
[*161] Iler^ * Actus, and Via; — Iter being a way on foot
or horseback, over another man's land, to one's own ;
Actus, a right of walking, riding, driving cattle or a cart,
over another man's land, though sometimes it did not in-
clude the right of driving a cart or wagon. Via, sometimes
called Aditus, answered to a highway, including the right of
walking, riding, driving cattle, carts, and the like. One
having an iter had not an actus, but he who had an actus
had also an iter ; and a via included an iter and an actus.^
5. A way is an incorporeal hereditament, and consists in
the right of passing over another's ground. It may arise
1 Warner v. Green, Com. 114.
2 Davies v. Stepliens, 7 Carr. & P. 570.
3 Ballard r. Dyson, 1 Taunt. 279, per Ueath, J,
* Smith V. Ladd, 41 Maine, 320.
5 Brnnton v. Hall, 1 Q. B. 792.
c M'Donald r. Lindall, 3 Rawle, 492.
7 Maxwell r. M'Atce, 9 B. Monr. 20 ; Bean v. Coleman, 44 N. H. 539, 544 ;
Bakeman v. Talbot, 31 N. Y. 366; post, pp. *186, *195.
^ Ayl. Pand. 307 ; Inst. 2, 3. For the different classes of ways known to the
French law, their width, and how they may be used, see 1 Fournel, Traite du
Voisinagc, 233, ^ 88.
Sect. 1.] WAYS DEFl^'ED. 217
either from grant, necessity, or prescription, and is either in
gross or appendant to land. By prescription, a grant is im-
plied, as, if all the owners and occupiers of such a farm
have immemorially used to cross another's ground, such
usage supposes an original grant of the right. A right of
way may be in gross, that is, attached to the person using it,
or appurtenant to land, but a way is never presumed to be
in gross when it can fairly be construed to be appurtenant to
land.i
But the grant of a way across a man's land conveys no
right to the soil, rocks, or other things within the bounds of
the way.^
Ways are said to be appendant or appurtenant when they
are incident to an estate, one terminus being on the land of
the party claiming. They must inhere in the land, concern
the premises, and be essentially necessary to their enjoyment.
They are of the jiature of covenants running with the land,
and like them must respect the thing granted or demised,
and must concern the land or estate conveyed. A way
appendant cannot be turned into one in gross, because it is
inseparably united to the land to which it is incident.
So a way in gross *cannot be granted over to an- [*162]
other, because of its being attached to the person.'^
Nor can one have a private way over and along a public
highway.'^
In the foregoing definition of a way, borrowed from the
language of the court of Pennsylvania, the usual classifica-
tion of modes is retained, by which ways may be created,
though it is hardly necessary to repeat, that, when analyzed,
they resolve themselves into simple grants, the difference
consisting in the character of the proof, and not in the mode
1 Case of Private Road, 1 Ashm. 417; Garrison v. Eudd, 19 111. 558; Der-
rickson v. Springer, 5 Harringt. 21.
2 Smith V. Rome, 19 Giv. 91 ; Jamaica Pond v. Chandler, 9 Allen, 164. See
Lyman v. Arnold, 5 Mason 198.
3 Garrison v. Rudd, 19 111. 558, 565.
* State V. Jefcoat, 11 Rich. 529. *
218 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. II.
itself. For the sake of convenience, however, ways of neces-
sity will be treated of as a class by themselves, and will be
considered before the nature, character, and extent of enjoy-
ment of different kind of ways shall be illustrated or ex-
plained.
SECTION II.
OF WAYS OF NECESSITY.
1. Waj's of necessity only exist over lands of grantors.
2. In what cases ways of necessity exist.
3. Same rule, if grantor reserves "a way of necessity."
4. Such ways exist only so long as the necessity continues.
5. Effect of owning adjoining land with a private right of way.
6. Executor may by grant create a way of necessity over his own land.
7. A tenant in common cannot create a way over common land.
8. Eights of way over parcels of land not dependent on priorit}- of grant.
9. Whether a v/ay passes, dependent on state of the premises.
10. Who is to designate the course of a way of necessity.
1. A WAY of necessity can only be created over one of two
parcels of land of which the grantor was the owner when
the same was conveyed or reserved ; and it arises in
[*163] favor of *such parcel when the same is wholly sur-
rounded by what had been the grantor's other land,
or partly by this and partly by that of a stranger.^ This
arises from the effect of the grant or reservation of the land
itself, and it is so far appurtenant to it as to pass with the
land to another, provided he have no other way of access to
the same.^
1 N. Y. Life Ins. & Tr. Co. v. Milnor, 1 Barb. Ch. 3.53, 366 ; Collins v. Pren-
tice, 1.5 Conn. 39 ; 1 Wms. Saund. 323, note; Brice v. Bandall, 7 Gill & J. 349 ;
Marshall v. TrunibiiU, 28 Conn. 183; Kimball v. Cochcco R. R., 7 Fcst. 449.
Sec Trask v. Patterson, 29 Me. 499 ; Tracy v. Atherton, 3.5 Verm. 52.
2 Clarke v. Rugj^e, 2 Rolle, Abr. 60; Woolr. Ways, 21; Jorden v. Atwood,
Owen, 121 ; Howton v. Frcarson, 8 T. R. 50; Lawton v. Rivers, 2 M'Cord, 445;
Nichols V. Luce, 24 Pick. 102; Proctor v. Hodgson, 10 Exch, 824; White v.
Lecson, 5 Ilurlst. & N. 53 ; Wissler v. Hershcy, 23 Penn. St. 333.
Sect. 2.]':; WAYS OF NECESSITY. 219
2. It would be simply absurd under the common law to
pretend that A could, by any form of grant, create a servi-
tude upon the land of a stranger in favor of land which he
should convey to his grantee.^ But l)oth by the civil codes
of France and Louisiana, one whose lands cannot be reached
from a highway, except by passing over the lands of another
person, may pass in the shortest feasible distance over such
third person's land, paying him an indemnity therefor.^ And
as to the question, what constitutes a necessity sufficient to
raise an implied grant of a right of way, some courts have
been inclined to hold that it need not be absolute and irre-
sistible, and that a mere inconvenience may be so great as to
raise such an implication.^ But the same court held, in
another case, that where the land conveyed was surrounded
on all sides but one by water, and there was no access to it
by land except over the grantor's land, it was not such a
necessity as to raise an implied grant of a right of way over
this land, and that mere convenience was not the test.* And
the law seems to be now settled beyond controversy, that, in
the language of the court in M'Donald v. Lindall : " The
right of way from necessity over the land of another
is always of *strict necessity, and this necessity must [*164]
not be created by the party claiming the right of way.
It never exists where a man can get to his property through
his own land. That the way through his own land is too
steep or too narrow, does not alter the case. It is only
where there is no way through his own land that the right of
way over land of another can exist. Tliat a person claiming
a way of necessity has already one way, is a good plea, and
bars the plaintiff."^ A way of necessity, ex vi termini, im-
1 2 KoUc, Abr. 60, pi. 18 ; 1 Wms. Saund. 323 b, note; Billiard v. Harrison,
4 Maule & S. 387 ; Woolr. Ways, 21 ; Tracy v. Atherton, 35 Verm. 52.
2 Martin i'. Patin, 16 Louis. 57 ; Code Nap. §§ 682 - 685.
8 Lawton v. Rivers, 2 M'Cord, 445; Morris v. Edgington, 3 Taunt. 230.
But sec Screven v Gregorie, 8 Eich. 158, convenience not sufficient.
* Turnbnll r. Rivers, 3 M'Cord, 131. See also Cooper v. Manpin, 6 Mo. 624 ;
Anderson v. Buchanan, 8 Ind. 132.
M'Donald i-. Lindall, 3 Rawle, 492; Com. Dig. Chimin, D. 4; Staple v.
220 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. II.
ports a right of passage through the lands of another as being
indispensable. 1 Nor can one claim a way by necessity be-
cause of its superior convenience over another way which he
has.2
Or, as stated by another class of cases, a right of way exists
only where the person claiming it has no other means of
passing from his estate into the public street or road.^
The same rule applies where the grantor conveys land sur-
rounding a parcel retained by him ; he has a way of necessity
over the granted land to the parcel retained.^
3. Nor would the rights of a grantor be any more exten-
sive or different, though by the terms of his deed he reserved
to himself " a way of necessity." ^
4. And so limited is the right of way of necessity in re-
spect to its duration, that, though it remains appurtenant
to the land in favor of which it is raised so long
[*165] as *the owner thereof has no other mode of access,
yet the moment the owner of such a way acquires,
by purchase of other land or otherwise, a way of access from
a highway over his own land to the land to which the way
belongs, the way of necessity is at an end ; or in other
words, a way of necessity ceases as soon as the necessity
ceases. The necessity limits the duration of the grant, and
this applies as well to a subsequent owner of the estate to
which such way attaches, as to the first grantee in whose
Heydon, 6 Mod. 1 ; Seabrook v. King, 1 Nott & M'C. 140; Kimball v. Cocheco
R. R., 7 Fost. 448 ; Leonard v. Leonard, 2 Allen, .543 ; Trask v. Patterson,
29 Me. 499 ; Ogden v. Grove, 38 Penn. St. 487 ; Hall v. M'Leod, 2 Mete. Ky.
98.
1 Hyde V. Jamaica, 27 Verm. 460.
2 Dodd V. Burchell, 1 H. & Colt. 122; Pheysey v. Vicary, 16 M. & W. 496,
per Alderson.
8 Gayctty v. Bethune, 14 Mass. 49 ; Grant v. Chase, 17 Mass. 443 ; Smyles v.
Hastings, 5^2 N. Y. 217 ; Collins v. Prentice, 15 Conn. 39; Hyde v. Jamaica, 27
Yt. 443.
* Clark V. Coggc, Cro. Jac. 170; Brigham v. Smith, 4 Gray, 297; Seymour
V. Lewis, 13 N. J. 444 ; White v. Bass, 7 II. & Norm. 732.
6 Viall V. Carpenter, 14 Gray, 126.
Sect. 2.] WAYS OF NECESSITY. 221
favor it was originally raised. It is not enough that it con-
tinues to be a way of convenience, if it ceases to be indis-
pensable as a means of access to the land.^
5. It would not be enough, however, that one having such
way of necessity should acquire a parcel of land adjoining
that to which such way belongs, to which there is access by
a prescriptive right of way, since the owner of such a way
could only use it as a means of access to the particular
parcel to which it is appurtenant.^
6. A right of way will be raised between the parties to
the transfer of one of two or more estates or parts of
estates, where the part granted or retained can be reached
only over the other part ; and this not only applies to cases
at levies of executions upon parts of an estate, but has been
held to extend so far, that, if one as an executor sells land
to which there is no means of access except over his own
land, the purchaser may pass over the executor's land to
that which he has purchased. So if an executor, in the
execution of his trust to sell lands of his testator, sell a
front lot to one, and then a rear lot to another, the
*latter may, if necessary, pass over the front lot to [*16G]
reach that in the rear of it.^ So if a creditor levy
his execution upon his debtor's land in such a mode that it
is necessary to pass over the part levied upon, in order to
reach the other parts of the estate, a right of way over the
same at once attaches to the other parts.* But not if there
1 Pierce v. Selleck, 18 Conn. 321 ; Holmes v. Seely, 19 Wend. 507; Collins
V. Prentice, 1.5 Conn. 39; Morris v. Edgington, 3 Taunt. 23; Lawton v. Rivers,
2 M'Cord, 445; Viall v. Carpenter, 14 Gray, 126; Holmes v. Goring, 2 Bing.
76, 83 ; New York Life Ins. & Tr. Co. v. Milnor, 1 Barb. Ch. 353 ; Nichols v.
Luce, 24 Pick. 102; Staple v. Heydon, 6 Mod. 1 ; White v. Leeson, 5 Hurlst.
& N. 53; Seelcy v. Bishop, 19 Conn. 128; Gayetty v. Bethune, 14 Mass. 49
Woolr. Ways, 72.
2 New York Life Ins. & Tr. Co. v. Milnor, 1 Barb. Ch. 353.
3 Collins V. Prentice, 15 Conn. 39; Howton v. Frearson, 8 T. R. 50; Woolr.
Ways, 20.
* Russell V. Jackson, 2 Pick. 574; Pernam v. Wead, 2 Mass. 203; Taylor v.
Townsend, 8 Mass. 411.
222 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. II.
is a way left from the highway to the back land which might
be rendered feasible at no disproportionate cost.^
7. But this would not give one tenant in common a right
to create an easement of way over the common estate to land
sold by him belonging to himself alone. ^
8. In determining whether, as between two or more
parcels, a right of way exists in favor of one over the
other, as a way of necessity, it does not depend upon the
order or priority of the conveyances. Thus, suppose lots A,
B, and C lying in the above order, A lying in front, and B
being accessible only over A, and C only over A and B,
all of which originally belonged to the same owner, and it
cannot be shown whether the one or the other was granted
first. It would make no difference in the result, for if it
was C, a right of way was thereby created in its favor over
A and B, and would pass therewith, so long as it remained
one of necessity. If it was B, then, by the principle hereto-
fore stated, a right of way was thereby reserved to the
grantor from A over B to C, and wo\ild pass as appvirtenant
to those lots so long as the necessity continued, so that the
same rights in favor of one over the other of said parcels
exist, irrespective of the priority or order of the conveyance
of the parcels,^
[*167] *9. And whether a way passes as one of necessity,
with the parcel of land to which it may have be-
longed, depends upon the condition of the estate at the time
of the conveyance. Thus, wdiere there were two parcels of
land, upon one of which there had once been a barn to
which there was a way of necessity over the other parcel,
and the owner of the estate suffered the barn to go wiiolly
to decay, it was held that the right of way over the other
1 Allen V. Klncaia, 11 Me. 155.
2 Collins V. Prentice, 15 Conn. 39; Gayetty r. Betluine, 14 Mass. 49 ; Mar-
Bhall V. Trumbull, 28 Conn. 183; Brico f. Randall, 7 Gill & J. 349; 1 Wins.
Saunrl. 323, note.
« rinnington v. Galland, 9 Exch. 1 ; "White v. Bass, 7 II. & Norm. 732.
Sect. 1.] WAYS OF NECESSITY. 223
parcel of land thereby became extinct, and ceased to be
appurtenant to it.^
10. In respect to who shall designate the way which is to
be used by the grantee, where it is claimed as a way of ne-
cessity, it would seem that, if a way had been in use for the
benefit of such parcel before its conveyance, it would be
understood that tlie same would be to be continued if rea-
sonably convenient.^ But if it is to be designated anew,
it seems that the right of selecting the place over which
it shall be used lies with the owner of the land over which
it is to pass, provided, upon request, he shall designate it in
a reasonable manner, and he may so do it as to be least
inconvenient to himself.-^ But if the owner of the land fail
to designate such a way when requested, the party who has
the right to use it may select a suitable route for the same,
having regard to the interest and convenience of the owner
of the land over which it passes. And when he has once
selected the way, he may not change it at will, but must be
confined to the way thus selected.'* And in this respect it
seems the law differs between ways claimed by ne-
cessity and *those claimed by grant, where there is [*168]
no designation made of the particular part of the
tenement in which it is to be exercised. In the latter case,
the selection is left to the owner of the dominant tenement,
but he must not make such a selection as would unnecessa-
rily occasion detriment to the servient tenement. And the
same rule would apply to aqueducts,^
1 Gayetty v. Bethune, 14 Mass. 49 ; M'Donald v. Lindall, 3 Rawle, 492.
2 Pinnington v. Galland, 9 Exch. 1.
8 Capers v. Wilson, 3 M'Cord, 1,70; Russell v. Jackson, 2 Pick. .574 ; Holmes t*.
Secly, 19 Wend. 507 ; 2 Rollc, Abr. 60, pi. 17 ; Smiles v. Hastings, 24 Barb. 44 ;
Pearson v. Spencer, 1 B. & Smith, 584.
* Nichols V. Luce, 24 Pick. 102 ; Morris v. Edgington, 3 Taunt. 23 ; Holmes
V. Seely, 19 Wend. 507.
There are rules in the French law as to which of several adjoining estates, one .
having a right of way, by necessity, from a highway to a parcel ofland surround-
ed by the lands of others, shall pass over. It is not a matter of mere election on
his part. 2 Fournel, Traitc du Voisiuage, 301.
5 3 Burge, Col. & F. Law, 441.
224 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. 11.
Where the grantor of land, who had reserved a right of
way over it within certain limits, opened it in a direction not
authorized by the reservation, and he was enjoined from
using it, it was held he might make a new designation of the
way.i
SECTION III.
OF WAYS CREATED BY GRANT.
1. Ways may be created by express or constructive grant.
2. How far grants of ways affected by ways in use.
3. 0' Linda v. Lothrop. Grantor estopped to deny a way.
4. Effect on private rights of discontinuing a liighway.
5. Smyles v. Hastings. Rigtit of way created by plans of premises.
6. Child V. Chappell. Easements passing on partition of estates.
7. Effect of bounding land by a contemplated street.
S. When bounding by a street conveys a right of way in it.
9. How far bounding by a street implies any width thereof.
10. Osborn v. Wise. How far parol may explain what is granted.
11. Emerson v. Wiley. Constructive grant of a general waj'.
12. Hartshorn v. South Reading. General grant limited by nature of use.
13. White V. Leeson. Case of way not passing, though on a plan.
14. Morris v. Edgington. Two ways used by grantor, ivhich passes.
15. Kirkham v. Sharp. Grantor of way limited to same use as grantee.
16. Salisbury v. Andrews. State of premises defines way granted.
17. Lewis V. Carstairs. Way for one purpose may not be extended.
18. How far a way passes with the several parts of an estate.
19. Grant of a right of maintaining a bridge, held to be of a right of way
1. In considering the subject of ways created by grant, it
chiefly remains, after having treated already of what
[*169] will pass *by implication, with the principal thing
granted, to state and apply the rules which courts
have adopted for limiting and defining the nature, use, and
• extent of such ways as pass by grants of lands with which
they are to be enjoyed. These may be defined by the express
terms of tlie deed by which they are created, or they may be
•ascertained Ijy construction, having reference to the state
and condition of the principal estate granted.
1 Hart V. Conner, 25 Conn. 331.
Sect. 3.] WAYS CREATED BY GRANT. 225
2. As a general proposition, a grant of an estate with
" ways heretofore used," or " ways in use," or the like,
would pass all existing ways in actual use at the time,
whether the same are used by the grantor over other parts
of his own estate, and so are not properly appurtenant to such
granted parcel, or are appurtenant to the same, by having
been in use over the land of another.^ But a mere reference
in the deed to an intended way, without an express grant, .
will not pass such way.^ And where a right of way is
granted, but its locality and duration are not defined, it may
become fixed by use and acts of acquiescence of the parties.
And where there are two ways which will answer the descrip-
tion in the grant, the grantor's declaration may be admitted
as evidence as to which was intended.-^ And when once
fixed by user, it may not be changed except by a sufficiently
long acquiescence therein by the parties in interest.^ And
this applies to an aqueduct as well as a way.''"' And if the
deed granting the way deffnes its course, &c., it is not to be
controlled by parol testimony as to what the parties intended,
or to contradict the terms of the grant.*^
But where both j^rties claimed under one remote grantor
and grantee, and the question was as to the width of the
way, reference was had to the deed of the original grantor,
who created it."
3. Among the numerous illustrations which are to be
found in decided cases, of ways passing either by being re-
ferred to in deeds and taking effect by way of estoppel, or by
1 Plant V. James, 5 Barnew. & Ad. 791 ; Harding v. Wilson, 2 Barnew. & C.
96 ; Staple v. Heydon, 6 Mod. I.
2 Harding v. Wilson, 2 Barnew. & C. 96 ; Roberts t;. Ivarr, 1 Taunt. 495.
3 French v. Hayes, 43 N. H. 32 ; Osborn v. Wise, 7 C. & P. 761.
* Bannon v. Angler, 2 Allen, 128 ; Wynkoop v. Burger, 12 Johns. 222 ; French
V. Hayes, 43 N. H. 32 ; Osborn v. Wise, 7 C. & P. 761 ; Jennison v. Walker, 1 1 Gray,
426 ; Jones v. Percival, 5 Pick. 487.
*> Jennison i\ Walker, 11 Gray, 426.
^ Shepherd v. Watson, 1 Watts, 35 ; Ballard v. Dyson, 1 Taunt. 279, 288.
^ Brown v. Stone, 10 Gray, 65.
15
226 THE LAW OF EASEMENTS AND SERVITUDES. [Cir. II.
having been laid down upon plans used by the parties, or by
having been actually in use when the grant of the principal
estate was made, are the following.
[*170] *In O'Linda v. Lothrop, the grantor, owning a
parcel of land, sold the north part of it, and bounded
the part sold on the south by an intended street where none
existed, and sold the south part, bounding it north by a street.
Nothing, however, was said in the deed of a right of way
over the street. But it was held that the grantor was es-
topped to deny that it was a street or way to the extent of the
land so referred to. It was an implied covenant on his part
that there was such a street.^
But in the case above stated, had there been an existing
way a part of the length of the line of the granted premises,
but not the whole of it, it would be considered as limiting
the grant to the existing way, and not as extending the
covenant as to the way to the whole length of line of the
premises.^
4. So where one sells land bounding it upon the highway,
and the same is discontinued by act of law, although the same
reverts to the owner of the fee of the soiWthe grantor as such,
in such a case, would have no right to deprive his grantee of
the right to use the discontinued road for the purposes of a
way.'^
5. In order to a partition of a common estate, a plan was
prepared of the premises, and of the several parcels into
which it was to be divided, and in the deeds of partition
reference was made to the plan. Upon this plan a street or
road was laid down, upon which one of the lots was bounded,
and to which there was no other mode of access from a pub-
lic highway, except over the lands of third persons. It was
held that the right of way as thus laid down became appurte-
1 O'Linda v. Lotlirop, 21 Pick. 292; Tufts i;. Cliarlestown, 4 Gray, 537;
Parker v. Smith, 17 Mass. 413 ; Howe v. Alger, 4 Allen, 206.
2 Parker v. Smith, 17 Mass. 413 ; Parker v. Framingham, 8 Mete. 2G0.
8 Parker v. Framingham, 8 Mete. 260.
Sect. 3.] WAYS CREATED BY GRANT. 227
nant to the lot thus hounded, and passed with it as a proper
appurtenance.^
*6. The case of Child v. Chappcll, already cited, [*171]
may serve to illustrate more than one of the forego-
ing propositions. In that case, three tenants in common of
one hundred acres of land, adjoining falls in a river, made
partition of it by deed, by a plan annexed to it, showing a
mill-yard, mill-races, water, and alleys, which were to be en-
joyed for their common use forever. Five years after, by
another partition deed, reciting the former one, they laid out
new lots upon a part of the " mill-yard," altered some of the
lines, and made a new division of these lots. It was mutu-
ally covenanted that a basin should be made on the annexed
plat upon a part of the mill-yard, which was to be common
property of the parties, their heirs and assigns. The road
was to be forever kept open as a common way to the mills,
to the basin, and to the warehouses adjoining the same. The
plaintiff purchased one of these lots, and the defendant
another, from the original grantees in the partition deed.
It was held that the undivided parts of the estate became a
servient tenement to the several parcels divided and sold,
and the easement and privilege of the way, the basin, &c.,
became permanently annexed to the lots. The act of laying
out these basins and ways, and selling one of the lots to the
defendant with express reference to the deed containing the
plan and covenants, " was quoad the purchaser and the land
purchased a dedication of it to the use for which it was con-
structed." Morse, J. considers the point of its being a
dedication. " As between the original owner of the land
and the several grantees of parcels thereof, these rights are
fixed ; but until the public has in some way become a party
to the transaction,. the whole arrangement is subject to be
rescinded by the joint act of the original owner, and all of
those who own and have the right to represent the land sold.
1 Smylcs r. Hastings, 22 N. Y. 217, 224 ; s. c, 24 Barb. 44. Sec Van Meter
V. Hankinson, 6 Whart. 307.
228 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. 11.
.... In other words, there might be impressed upon this
mass of private property, by private contract, rights in the
strictest sense of the word analogous to the ordinary public
rights of highway, and yet these rights confined to
[*172] the owners and *representatives of the land forming
the subject of the compact, and liable to be ended
and rescinded by the mutual consent of all who have an
interest in the subject But until they did mutually
agree to the contrary, the mill-yard remained a common way,
common to those who had interests in the mill-seat lots front-
ing upon it, constituting to each lot an easement appurte-
nant to it, not by prescription, but by what a prescription
implies, a grant." ^
7. But where land was bounded upon a contemplated
street laid down upon a plat of village or city lots, and the
commissioners, who had jurisdiction of the matter, prevent-
ed its being opened, it was held that the purchaser of the lot
would have no right of way over it, if he has another con-
venient way of access to his lot.^
8. In Roberts v. Karr, the grantor conveyed a parcel of
land adjoining a new way over his own land, on which
houses had been erected, and described the parcel by lines
measured by feet and inches, " abutting on the road or
street." It was held to carry with it a right of access to
this road or street at every point along this front. Nor was
the grantor permitted to show, by parol, that the line intend-
ed was along the street a part of the distance, and then
along a narrow space of land between the granted parcel
and the road, which still belonged to the grantor, although
that corresponded with the admeasurement and lengths of
the lines mentioned in the deed. The grantor would not be
admitted to deny that the land on whicli the parcel abuts is
the road."^
1 Child V. ChappcU, 5 Seld. 246, 2.50, 260 ; ante, chap. 1, sect. .5, pi. 22.
2 Underwood v. Stiiyvcsaiit, 19 Johns. 181 ; Bellinger v. Burial Ground, &c.,
10 Pcnn. 1.3.5.
8 Roberts v. Kurr, 1 Taunt. 495.
Sect. 3.] . WAYS CREATED BY GRANT. 229
In the case above cited, the way in respect to which an
implication of appiirtenancy was raised, it will be remem-
bered, was over and upon the land of the grantor himself.
But it seems not to be entirely clear how far the
*law would raise a covenant that the use of such a [*173]
way existed in favor of the granted premises, and
might be enjoyed with them, by merely bounding the same
upon it, where it lies over the land of another person.
The question came up in Howe v. Alger,^ where the court
held, that bounding land in a deed upon a street neither
conveyed any right of way in the street, nor was it a cove-
nant that there was such a street, if the grantor had no
interest in the soil of the same. If he owned the soil of the
street, and bounded land by it, describing it as a street, he
would be estopped to deny that it was one, or that his
grantee had a right to use it.
In Maryland, the court holds that if one grants land in a
city, and bounds it by streets designated as such in the
conveyance, or on a map made by the city, or by the owner
of the property, such sale implies, necessarily, a covenant
that the purchaser shall have the use of such streets. The
grantor would be estopped to deny that there was such
a street as he describes in his deed.^
9. In Walker v. Worcester, the owner of a large tract of
land laid out streets upon it for the purpose of selling house-
lots bounding upon the same, and caused a plan of it to be
made. One of these streets was called " Park," and was
laid out sixty feet wide. He then sold the whole land
together, and his grantee made a fence around it, enclosing
it, and ploughed and cultivated it. He then sold a house-
lot, a part of this estate, bounding it on one side by an
existing street, and " westerly on Park Street, one hundred
and fifty feet." The owner of the general parcel graded
1 4 Allen, 206 ; Matter of Mercer Street, 4 Cow. 542.
2 White V. Flannigain, 1 Md. 540, 542 Moale v. Mayor, &c. of Baltimore, 5
Md. 321.
230 THE LAW OF EASEMENTS AND SERVITUDES. ' [Ch. II.
this street anew and reduced it to forty feet in width, and
sold the other part of the estate, including twenty feet
formerly within Park Street, to the defendants. In an
action for preventing the purchaser of the house-lot passing
over the whole original width of Park Street, the court held
that, in order to constitute a street, it must be open and
appropriated, and adopted by the public or the owner for
purposes of travel, so that a person passing over it, Avhile it
was op.en, would not be liable for a trespass. Though once
open, if closed before any house-lots were sold, the deed
amounted to an implied covenant and grant, if the grantor
owned it, that the grantee should have the right to a con-
venient street or passage-way. But there was nothing to
designate or limit the dimensions of the way thus granted
by implication. The law would imply a way necessary and
convenient to accommodate the grantee in the use of the
land granted, to the extent granted of one hundred and fifty
feet.i
10. In Osborn v. Wise, there was a grant of a
[*174] house, with *a passage-way ten feet wide on the east
side of the premises, with a reference to a plan which
showed a passage-way on that side, but of only five feet in
width in parts of it, and it did not, moreover, all pass over
the grantor's land. The grantee claimed a way running in
anotlicr direction wide enough for a carriage-way, and offered
evidence to show that the grantor declared the road was
what the owner of the estate claimed it to be. The court
refused the evidence, but held that evidence was competent
to show the state of the property at the time when the grant
was made, and that, if the way granted was of no use, the
grantee had a way of necessity over the grantor's land to
the nearest public highway then existing. But the acts of
the parties, before or after the grant, would not be evidence
of what was granted.
1 Walker v. Worcester, 6 Gray, 548. See Harding v. Wilson, 2 Barncw. &
C. 96.
Sect. 3.] WAYS CREATED BY GRANT. 231
The deed was to be construed by the state of the premises
when the grant was made. Nor docs the grant that carries
with it a right of way of necessity necessarily imply a
carriage-way, even though the thing granted be a house.
But the grant of tillage-land implies a carriage-way, because
such a way is necessary in order to carry off the crops, unless,
by the custom of the vicinage, the crops are carried off by
men instead of teams. But if there had been two ways on
the east side of the premises answering to the description in
the deed, parol evidence would have been competent to show
which of these was intended.^
11. The proptietors of a town voted that certain land
should remain unfenced, among other things, " to accommo-
date the neighbors that live bordering on said lands, for their
more convenient coming at and improving their own lands
and buildings, and to the use of the old parish and neigh-
borhood forever," <fec. The parish granted a parcel of land,
"bounded all round by the land given by the town,
to the first parish, &c., with all the privileges *there- [*17o]
to belonging." It was held that this conveyed to
the grantee the right to cross this open land in all directions,
and amounted to a covenant that the same should not be
enclosed without consent of the owners abutting upon it.^
12. In Hartshorn v. South Reading, the subject of an
easement in tlie same public land as in Emerson v. Wiley
came under the consideration of the court. The plain-
tiff's land fronted upon the common land, which by vote
of the town was to lie unfenced " for the use of the old
parish, for highways, a training-field, and burying-place,
and the more common coming at the pond with flax and
creatures, and also to accommodate the neighbors that live
bordering on said lands, for their more convenient coming
at and improving their own lands and buildings." The
town enclosed a part of this common, and the plaintiff
1 Osborn v. Wise, 7 Carr. & P. 761.
'■^ Eincrson v. Wiley, 10 Pick. 310.
232 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. II.
brought his action because he was thereby deprived of a
right of way over it, and over every part of it in all direc-
tions, which he claimed was appurtenant to his land under
this vote. The court held, in the first place, if the injury
complained of was of the same nature with that which all
persons having occasion to use the same would sustain,
except in degree, the only remedy was by indictment, and
not by an action for an injury to a private easement. In
the second place, the uses to which this land was devoted
by the original action of the town were distinct and sepa-
rate, some necessarily of a public character, to be controlled
by the public authorities. These are to be used by indi-
viduals and the public so as to be consistent with each
other. The public could not use the common directly in
front of the plaintiff's land for a burying-ground, so as to
prevent access to the same by him ; and, on the other hand,
if a burying-ground were allotted upon a part of it, the
plaintiff would have no right to travel over or among
[*1T6] the *graves and monuments, or drive his cattle over
these. The extent of his right as owner of the land
which belonged to him was that of passage over so much of
the common as was reasonably sufficient for coming to his
lands and buildings, and for access to the pond. And as the
evidence did not show that the enclosure complained of ob-
structed these, it was held that the action of the plaintiff
could not be sustained.^
13. In White v. Leeson, a devisee of lands was authorized
by private act of Parliament to lay out the same for build-
ing-lots, and to make ways, streets, &c., " for the general
improvement of the estate, and the accommodation of the
tenants and occupiers thereof." He laid out the lands and
made certain streets, one of which led to the sea. He
then granted several of the lots to the defendant, without
mentioning any right of way, and granted other lots to
1 Hartshorn v. South Iveatlin<,', 3 Allen, .')02. See Brainard v. Connecticut
River R, R. Co., 7 Cush. 506 ; Harvard College v. Stearns, 15 Gray.
Sect. 3.] WAYS CREATED BY GRANT. 233
others, with riglits of way in express terms. This street to
the sea was a mere private way, and does not seem to have
been necessary to the occupation of tlie defendant's lots.
But he seems to have claimed the right to use it, because
it was laid out for the general improvement and accommo-
dation of the tenants of the parcels into which the estate
was divided. But the court held that, being a mere private
way, the defendant had no right to make use of it beyond
what had been expressly granted to him. The judge, Wat-
son, B. says: "The argument for the defendant would go
to show that, if a square of large houses was set out with an
enclosure, all the tenants must have a right to walk in it,
though they lived in cottages at a distance."
It will be observed that no question of dedication or neces-
sity was raised, but merely of the construction to be given
to the deed of the defendant, taken in connection with the
condition of the property, and the omission to grant a
*right to use this private way was conclusive that it [*177]
did not pass Avith the parcels granted.^
This sulijcct is thus treated of by Chancellor Cottenham,
in Squire v. Campbell : " I will suppose it [plaintiff's affida-
vit] to state that a plan was shown by some person author-
ized to act for the lessors, and that the plan showed a space
such as has hitherto existed." (This was of an open square
in which defendant proposed to erect a statue.) " This
will raise the question, whether, in the absence of all fraud,
mistake, or misapprehension, the mere exhibition of the plan
of property, part of which the lessee takes, gives such lessee
a right to say that all the other parts of the property exhib-
ited upon such plan shall continue during his lease in the
same state in which it was exhibited upon the plan ; or, if it
was not at that time in such state, shall be made to assume
such state, and to have the assistance of this court to enforce
such right, the lease granted to each lessee being wholly
silent as to any provision for that purpose This
1 Wliite V. Leeson, 5 Hurlst. & N. 53.
234: THE LAW OF EASEMENTS AND SERVITUDES. [Cn. II.
proposition ■would evidently lead to most absurd conse-
quences. A man who is about to sell a corner of an estate
may exhibit a plan of the whole estate, in order to show the
relative position of that part which he is about to sell ; but
is he, on that account, to have his hands forever tied up from
the enjoyment and use of all other parts of the estate, and is
he to preserve it in exactly its present state ? " ^
14. The case of Morris v. Edgington, though somewhat
complicated in its facts, may serve to show the principles of
construction which courts apply in determining the nature
and extent of a way, where one is granted but not defined.
The defendant owned an estate consisting of a coffee-room,
a passage east of this, which led from the street into a close
yard, in which carriers deposited goods, entering through
this passage. East of the passage was a tap-room,
[*178] *and over the passage was another room. There
was a door from the passage-way into the tap-room,
so that persons could go directly from the street through the
passage-way to the tap-room by this door. There was also a
door from the street into the coffee-room, and then from the
coffee-room into the passage, so that one could reach the tap-
room by passing from the street through the coffee-room and
across the passage to the door of the tap-room, although the
gate between the street and the passage-way was closed.
The defendant let to the plaintiff the coffee-room and tap-
room, " and all ways to the demised premises belonging and
appertaining," reserving the yard and the passage-way to the
yard. Soon after letting the premises, the defendant closed
the gate to the passage-way after seven o'clock in tlie even-
ing, in order to make the goods deposited in the yard safe
and secure, and the plaintiff brought his action for this
obstruction of his way to the tap-room through this passage-
way from the street. The defendant insisted that the way
through the passage was not one of necessity, since the
tenant had another way through the coffee-room, and that
2 Siiuirc V. Campbell, 1 Mylnc & C. 459, 478.
Sect. 3.] WAYS CREATED BY GRANT. 235
it did not pass as appurtenant, because, so long as the entire
estate was in the defendant's hands, there could properly be
no such thing as a way appurtenant to one part over another.
But the court held that, though neither of the ways was in
itself a way of necessity, since there was another way of
access, and though, technically, neither of them was appurte-
nant to the leased premises, yet as there were but two ways,
and one of them must have been intended to pass by the
lease, that through the passage was to be taken as the way
intended, by reason of its being so much more convenient
for the accommodation and use of the leased premises.^
15. The facts in Kirkhani v. Sharp are still more compli-
cated, but the case is referred to as illustrating the manner
in which the general owner of land may so grant a
right *of way over it as to restrict himself to a like [*179]
use of the way, although' there is nothing in his deed,
in express terms, limiting his use or enjoyment of the same.
The defendant's grantor owned two house-lots forming one
estate, fronting west on Fourth Street, and extending back
one hundred feet. In the rear of these lots he had a stable
and yard, separated from the house-lots by a wall, to which
he had a way by an alley from Market Street, which ran in
a direction at right angles with Fourth Street. On the
north of these house-lots he had a house in the occupation of
A. B. He conveyed to the plaintiff's grantor one of these
house-lots bounding him on the west by Fourth Street, and
also " the full and free privilege and authority of ingress,
egress, and regress by, through, and upon a four-feet-six-
inches alley, extending in and about forty-five feet from
Fourth Street, to be forever left open between tlie lot hereby
granted and the house now occupied by A. B.,* (fee. It will
be per^ceived that the way was over the soil of the defend-
ant's grantor, and that, in passing from the end of tlic forty-
five feet to the stable and yard in rear of his lot, he would
pass only over his own land. The defendant, wishing to
1 Morris v. Edgington, 3 Taunt. 24; ante, chap. 1, sect. 3, pi. 14.
236 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. II.
pass from jNfarket Street through his stable estate, and thence
to Fourth Street, extended the alley above described over
his own land, and, by breaking down the wall, into the stable
yard, used the same as a passage way ; for doing which
the plaintiff brought his action. The court sustained it, on
the ground that, by the terms of the deed, the alley was
limited to forty-five feet in depth, and the grantor had
thereby restricted himself from extending and enlarging its
use. " The ungranted residue of a right of way," say the
court, " may be annexed to a particular messuage or close,
either by express stipulation or necessary implication, accord-
ing to the occasion of the grant. An instance of this might
be found in the disposal of houses surrounding a court orig-
inally destined to be a common avenue to them, in which it
w^ould be sufficiently obvious, from the disposition of
[*180] the property, that the right *of way had been appended
to the houses, and not the owner of them. By the act
of laying out the ground as a court, it would be allotted to
the houses intended to adjoin it, so as to pass with them as
an appurtenance, and^the right of the owner would be cor-
respondingly qualified by the nature of the use to which it
was dedicated. Sales of houses would successively abridge
it, till it was, ultimately, extinguished along witli his prop-
erty in the last of them, when the purchasers might, by com-
mon consent, bar the entrance against his person, notwith-
standing his legal title, just as they might bar it against a
stranger. During his ownership of but a part of the prop-
erty, he would be entitled to no privilege that he had not
originally annexed to it, nor could his right to use the court,
as a thoroughfare to a messuage or close adjoining him on the
farther side, fee greater than that of his grantees."
In applying this doctrine, the court held that, as the way
here was only over a part of the entire length of the lots,
and over this the plaintiff had full and free ingress and
regress, there was an implied restriction upon tlie owner of
the other parcel to be accommodated by it, that a similar
Sect. 3.] WAYS CREATED BY GRANT. 237
use to that which his grantee could make it, should only be
made of it by him, and therefore the grantor could not, in
addition to that, use the way for the accommodation of other
and more remote lands.^
16. In the case of Salisbury v. Andrews, the question was,
whether a right of access to, and to use, a sidewalk, passed
with the principal estate granted. The house was situate
upon Central Court, so called. The description of the par-
cel on which it stood was by feet and inches from point to
point at the four corners, " together with the land in front
of said house under tlie stone steps, with a right to pass and
repass on foot, and with horses and carriages, to said
house *and land, through said Central Court, at all [*181]
times." The grantee was to be at half the expense
in keeping the sidewalk in front of the house in good repair.
The injury complained of by the owner of this liouse was,
the narrowing of the court and passage-way. In commenting
upon the eftect to be given, in a deed, to the state and con-
dition of the premises thereby conveyed, in construing its
meaning, the court say that it is the ♦natural presumption,
" when a man erects a house on his own land, and makes a
sidewalk in front of it, paved with brick, and thereby fitted
for the passage of persons and wheelbarrows, and especially if
he opens doors and gates upon such passage, forming con-
venient means of access to different parts of the house and
grounds, and adapts the construction of the house and
grounds to such means of access, it is intended that such
passage shall remain for the use and benefit of all those who
hold, use, or purchase the house, and that they are intended
to be annexed to the house as permanent easements
Still, it is competent for the one to sell, and the other to pur-
chase, the house without the easements But where
the language is not clear and explicit, where it is open to
doubt, and the question is, what was the intent of the parties,
1 Kirkham v. Sharp, 1 Whart. 323. See Howell r. King, 1 Mod. 190; Law-
ton V. Ward, 1 Ld. Raym. 75 ; Jamison v. M'Credy, :■> Watts & S. 129, 140.
238 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. II.
the presumption arising from such original adaptation and
annexation of the easements to the house is of considerable
importance." Tlie court refer to the language of the deed
in reference to the " court " and the " sidewalk," and the
condition of the premises, for the purpose of ascertaining
what the parties intended, and conclude that a way of some
kind was intended ; that here being a paved way, with a side-
walk, it must be the one intended. " A right to pass and
repass, if over vacant and unoccupied land where no way
actually exists or is used, would be the grant of a conven-
ient way, the direction and width of which would be deter-
mined by various circumstances. But similar words being
used in regard to a place over which a way is already fixed
by buildings or permanent enclosures, would be con-
[*182] strued *to be a grant of a way thus located, fixed,
and defined." And such was held to be the proper
construction to be given to this deed, and that the plaintiff
acquired thereby a right of way over the sidewalk of the
width at which it was at the time of making the deed.^
17. The case of Lewis v. Carstairs was somewhat similar
in its facts to that of Kirkham v. Sharp, and the same doc-
trine is there sustained by the court, limiting the use of a
way created for the accommodation of certain lots to these
lots, and excluding its use for other purposes. Tiie facts
were briefly these. Plaintiff's grantor owned an estate at
the intersection of two streets, E. and C. The defendant
owned an adjacent estate on C. Street. Plaintiff's grantor
conveyed to him a part of his estate, bounding him on E.
Street, and agreed to open an alley from E. Street along the
side of the lot sold to the plaintiff, and along the rear of his
remaining lot fronting on C. Street, " bounded on an alley
of the width, &c., intended to be left open by the grantor,
together with the free use and privilege of the said alley as a
passage, in common with the grantor and his heirs, and those
to whom he may grant the same privilege." Afterwards the
1 Salisbury v. Andrews, 19 Tick. 250, 253.
Sect. 3.] WAYS CREATED BY GRANT. 239
plaintiff's g-rantor conveyed his estate on C. Street to the de-
fendant, who undertook to use said alley to pass from E.
Street, along the rear of the parcel last conveyed to him, to
the rear of the adjoining parcel. And the court held he had
no riglit thus to extend the use of the alley to other lands
than those to which the original parties who created it made
it appendant.^
18. The above case has been referred to thus specially,
partly to illustrate the application of the doctrine of Kirk-
ham V. Sharp, and partly to suggest a limitation to the prop-
osition elsewhere made, that, where an easement becomes
appurtenant to an estate, it remains appurtenant to
*every part of it into which it may be divided, which, [*183]
though generally true, is often limited by the nature
of the casement, and the condition of the estate to which it
is attached.
The distinction seems to depend upon whether the ease-
ment — a way, for instance — is indefinite in its limitation,
or, from the nature of the use to be made of it, is restricted
and defined. " If," says Jervis, C. J., "I grant a way to a
cottage wiiicli consists of one room, I know the extent of the
liberty 1 grant, and my grant would not justify the grantee
in claiming to use the way to gain access to a" town he might
build at the extremity of it." ^
So it was held that a way to a dwelling-house, wash-house,
and stable does not justify the use of it for access to a field.
A way to a cottage ceases, if the cottage be changed into a
tan-yard. But if the grant be of a cottage, with all ways to
the same, the right of way is not lost by altering the cottage.
If the grant be .of a way from a highway to the grantee's
dwelling-house, he may not open it to his field, and drive
his cattle over the grantor's land along such way to his
field. And if the way be to a particular corner of a field,
1 Lewis V. Carstairs, 6 Whart. 193.
2 Metropolitan Cemetery Co. v. Eden, 16 C. B. 42. See Allan v. Gomme,
11 Adolpli. & E. 759 ; ante, chap. 1, sect. 3, pi. 38.
240 THE LAW OF EASEMENTS AND SEEVITUDES. [Cii. II.
the grantee may not use it to enter his field at any other
point.^
And this may be further illustrated by a case put by
Denman, C. J., in giving an opinion in Allan v. Gomme, of
the grant of a small parcel of land, part of a large field
devoted to the culture of crops, for the purpose of a yard to
the house of the grantee, if a way were reserved across the
same to the field ; the grantor could not sell this field into
house-lots, and thereby turn this way into one for the accom-
modation of a town or village.^
19. The following case is stated here, because it is treated
of as coming under the category of ways, though not
[*184] easily *assigned to any of the classes already men-
tioned. There was a grant of a " river landing, so
far as the same shall be necessary for erecting, maintaining,
and supporting an intended bridge." The court held it to
be a grant of a servitude or easement in land for a defined
purpose. " It is a right of way of a specified kind, and noth-
ing more The grant being of an easement, the occu-
pation under it must be regarded as the exercise of the right
granted. Long enjoyment of an easement will establish a
right to an easement, but not to the land itself" ^
SECTION IV.
HOW WAYS MAY BE USED.
1. Case of way, " across," " over and along," &c., " to get hay," &c., how to be used.
2. Cases of special ways and for special purposes, rule of construction.
3. Grantee of way held strictly to the terms of his grant.
4. How far a " carriage-way " is a " drift-way."
5. When one not in possession may use a way appurtenant, &c.
6. How far a way for agricultural purposes a general one.
7. Atkins v. Bordman. Rights of way defined and explained.
1 Henning v. Burnet, 8 Exch. 187.
2 See ante, chap. 1, sect. 3, pi. 38.
3 Schuylkill Nav. Co. v. Stocvcr, 2 Grant, Cas. 462.
Sect. 4.] IIOW WAYS MAY BE USED. 241
8. Bounding by an intended way only implies a suitable one.
9. A right to pass over twenty feet is only so far as it is necessary.
10. Right of way carries all that is necessary to enjoy it.
11. Metropolitan Cemetery Co. v. Eden. Eight to pass from any part of a way to land.
12. Allan v. Gomme. Restricting ways to the special objects of the grant.
13. Henning i'. Burnet. Specific ways not to be changed in their use.
14. Dand t^ Kingscote. Adopting improved modes of using ways.
1. This leads to a consideration of the extent and uses to
which ways of a particular description may be applied, and
how far this is limited and controlled by the nature and con-
dition of the estates for whose benefit the same is created.
A grant of a way across a parcel of land does not give a
right to enter upon the parcel on one side, and, after
going *partly across, to come out upon the same [*185]
side. And where one under such a grant drew tim-
ber from his own land on to the servient parcel and turned
it round, which he could not do on his own land, it was held
that he was not justified under his right of way.^ So where
one had a way " in, through, over, and along " a certain
strip of land from A to B, it was held that he had not thereby
a right to a way across the strip of land.^ Where the grant
was of a convenient way to get hay, <fec., over the grantor's
land, it was limited to one line ; and though at first an in-
definite one, when it had been once designated, it could not
be changed at the election of the grantee.^ But what is a
reasonable use of a way, where the purposes are not defined,
is a question for the jury.^
Where a right of way has been created, but no time or
hour in the day is fixed in which it may be used, the French
law seems to be this : if it is to be exercised over an unen-
closed place, it may be used at any hour, whether by night
j^or by day ; but if the place is designed to be closed for the
security of the owner or that of the public, it may be used
at any convenient hour, but he who is to enjoy it cannot in-
1 Comstocki'. Van Deusen, 5 Pick. 163.
2 Senhouse v. Christian, 1 T. E. 560, 569 ; Woolr. Ways, 33.
^ Jones V. Percival, 5 Pick. 485.
* Hawkins v. Carbines, 3 Hurlst. & N., Am. ed. 914.
16
242 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. 11.
sist that it should be kept open all hours of the night. But
if the right of passing in the night in such a case is granted,
the owner of the land cannot prevent its being enjoyed at
any hour ; and if, on the other hand, the owner of the domi-
nant estate chooses to exercise the right, he must liave a key
by which to unlock the gate of the enclosure, and must not
leave it open after having passed through it.^
2. A grant of way on foot, and for horses, oxen, cattle,
and sheep does not authorize one to carry manure over the
• way in a wheelbarrow.^ A way to Green Acre is a
[*186] way for *any purposes for which that field could be
used. But, as will be shown, if it was to a particu-
lar open space described in the grant, and that was after-
wards occupied by a building, the right of way is defeated,
since it could only be used for the purposes for which it was
granted, and that could no longer be done.^ If granted or
acquired over Black Acre to Green Acre, and the grantee of
the way, having passed over Black Acre, pass over and be-
yond Green Acre, he will be a trespasser, because the right
of way did not justify such a use of it. But it is suggested
that if, after having reached Green Acre, the owner thereof
had proceeded thence over his own land or a public way to a
mill, it might be otherwise.^ And it is held, moreover, that
if, in the case supposed, the owner of the way was passing
over Black Acre with an intent to pass beyond Green Acre,
he would be liable in trespass, the character of the act,
whether justified or otherwise, depending upon the intention
with which he entered upon Black Acre ; and this is for the
jury to determine.^
3. The proposition in regard to confining the use of a
1 3 TouUicr, Droit Civil Franrais, 497, 498.
2 Brunton v. Hall, 1 Q. B. 792.
8 Ilenning v. Burnet, 8 Exch. 187 ; Allan v. Gomme, 11 Adolph. & E. 759.
* Howell ?;. Kinj^, 1 Mod. 190 ; Davenport v. Lanison, 21 Pick. 72 ; Lawton
V. Ward, 1 Ld. Kayni. 75 ; Woolr. Ways, 34 ; Shroder v. Brenncman, 23 Penn.
St. 348 ; 1 RoUe, Abr. 391, pi. 50.
6 French v. Marstin, 4 Fost. 440, 451.
Sect. 4.] HOW WAYS MAY BE USED. 243
way strictly to the purposes for wliich it was granted, is
thus stated in the case of French v. Marstin, above cited :
" The grantee of a way is limited to msq his way for the
purposes and in the manner spccihed in his grant, lie
cannot go out of his way, nor use it to go to any other place
than that described, nor to that place for any other purpose
than that specified, if the use in this respect is restricted." ^
So where there was a grant of a right of way and a free open
road from a highway to a mill privilege, it was held that the
grantee had not thereby any right to pile lumber upon the
way so granted. 2
4. Although it was held, as elsewhere stated, that a pre-
scriptive way for a carriage did not include a drift-way,
Chambre, J. was inclined to hold that a carriage-
way was *prima facie and strong presumptive cvi- [*187]
dence of the grant of a drift-way. The grantee in
such cases might send back his horses without his carriage,
or he might draw his carriage by oxen as well as horses, and
in either case he might send back his horses or oxen loose,
in order to drive them to pasture.^
5. In one instance, at least, it has been held that a man
may exercise a right of way appurtenant to an estate,
although he is not in possession of the same ; and that is,
where the owner of a tenement to which there is a way
appurtenant lets the same to a tenant, he may use the way
to view waste, demand rent, and remove obstructions from
the premises."^
6. It has been questioned how far the grant of a way for
agricultural purposes is a general right of way. It seems,
however, to be one of a limited and qualified character. It
, was held not to include the right to transport coals over such
1 French v. Marstin, 4 Fost. 440, 449. See Regina v. Pratt, 4 Ellis & B. SCO ;
Knight V. Woore, 3 Bing. N. C. 3. Bakcman v. Talbot, 31 N. Y. 3GG ; Colches-
ter V. Roberts, 4 M. & W. 774.
2 Kaler v. Bcaman, 49 Maine, 208.
3 Ballard v. Dyson, 1 Taunt. 279, 288.
* Proud V. Hollis, 1 Barnew. & C. 8 ; Woolr. Ways, 35.
244 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. II.
a way,^ nor to transport lime from a quarry .^ So a right to
draw water from a river will not sustain a plea of a right to
draw goods and water,^ and a right to cart timber will not
sustain a plea of a general right of way on foot, and with
horses, carts, wagons, and other carriages.*
7. The whole subject of the rights of way and their limi-
tations was most elaborately and ably examined by Shaw,
C. J., in the case of Atkins v. Bordman, so frequently cited
in the course of this work. In that case there was a grant
of a parcel of land, which was described as having a gate
and passage-way about five feet wide on one side, and a right
of way was reserved " through and upon the said gate or
passage-way, for carrying and recarrying wood or any other
thing through the same, and over the yard or ground
[*188] *of said messuage hereby granted, into and from the
housing and land of me (the grantor), for the use
and accommodation thereof." It was held to intend a con-
venient passage-way, but not of a definite width. An ease-
ment of way, as observed by the Chief Justice, consists in
the right to use the surface of the soil for the purpose of
passing and repassing, and the incidental right of properly
fitting the surface for that use. But the owner of the soil
has all the rights and benefits of ownership consistent witli
such easement. All which the person having the easement
can lawfully claim is the use of the surface for passing and
repassing, with a right to enter upon and prepare it for that
use, by levelling, gravelling, ploughing, and paving, accord-
ing to the nature of the way granted or reserved ; that is,
for a foot-way, a horse-way, or a way for all teams and
carriages.
If the way is not bounded or limited, or there be no one
in existence, the grant of a way would be, in point of width
1 Cowling V. Iligginson, 4 Mecs. & W. 245.
2 Jackson v. Staccy, Holt, N. P. 455.
3 Knight V. Woore, 3 Bing. N. C. 3.
* Ili-liiim V. Rabett, 5 Bing. N. C. 622.
Sect. 4.] HOW WAYS MAY BE USED. 245
and height, such as is reasonably necessary and convenient
for the purposes for which it is granted. If a foot-way, it
shall be high and wide enough for persons to pass with such
things as foot-passengers usually carry. If for teams and
carriages, it shall be sufficient to admit carriages of the
largest size, or loads of hay and other vehicles usually moved
by teams. So that, what is reasonable is partly law and
partly fact ; the facts are found by the jury, and then the
court declare whether it is convenient or not. When no
dimensions of a way are defined, but the purposes of it are
expressed, the dimensions will be held to be sufficient for the
accomplishment of that object. Where the way reserved
was for a house, it excluded the idea of such a use as might
be required for a store, such as bales, boxes, and the like.
And when " wood or any other thing " is mentioned in
connection with a house, it implies fire-wood, and not timber
. for sale ; or things usually used in dwelling-houses, such as
vegetables, provisions, furniture, and the like. And
the reservation of a way " for carrying and *re-carry- [*189]
ing wood or any other thing .... into and from
the housing and land of, <fec., for the use and accommodation
thereof," was held to be a convenient foot-way to and from
the grantor's dwelling-house, of suitable height and dimen-
sions to carry in and out furniture, provisions, and neces-
saries for family use, and to use for that purpose wheelbar-
rows, hand-sleds, and such small articles as are commonly
used for that purpose in passing to and from the street to
the dwelling-house in the rear, through a foot-passage in a
closely-built and thickly-settled town.^
The easement reserved was " a right of passage " over the
agricultural lands which were set off on partition made.
Nothing passes as incident to such a grant but what is requi-
site to its fair enjoyment. That must be the reasonable and
usual enjoyment and user of such a privilege. The land-
owner may nevertheless appropriate his land to such pur-
1 Aikias V. Bordman, 2 Mete. 457.
246 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. II.
pose as he pleases, consistent with the right of the grantee
of the passage to and fro.^
The general principles applicable to questions of this kind
are here so fully stated and enforced, that little more is
necessary than to refer to particular cases for purposes of
illustration. Thus, in the case above stated, it was held that
the owner of the land across which the way was reserved
might erect a building over it, provided he left a convenient
jDassage-way beneath it of a suitable height, and sufficiently
lighted to be conveniently used.^
8. So, where one let a parcel of land, bounding it upon an
intended way of thirty feet, and afterwards occupied a part
of it so as to reduce it to twenty-seven feet in widtli, it was
held that the recital did not amount to a covenant as to the
way or as to its width ; that under it the lessee was entitled
to a way of a suitable width, and if one of twenty-seven feet
answered that description, it was all he could insist upon
under his lease, inasmuch as, it not being an existing way at
the time of the grant, no inference as to its actual width was
to be derived from what then was apparent.^
9. So, where there was a grant of a parcel of land, " with
a right of passing and repassing over the space of twenty
feet, between the west wall of the store and east line of the
granted premises," it was held not to describe the
[*190] limits of *the way granted, but that it was a grant of
a convenient way within those limits, adapted to the
convenient use and enjoyment of the land granted, for any
useful and proper purpose for which the land might be used,
considering its relative position. And what is a suitable and
convenient way must depend upon circumstances. It could
not, therefore, necessarily follow that the, grantor would be
liable for obstructing some part of this space, and it would
1 Bakeman ;,'. Talbot, .31 N. Y. 371.
2 Atkins V. Bonlman, 2 Mete. 46G, 468.
3 liardinfj v. Wilson, 2 Barnew. & C. 96. Sec Walker v. City of Worcester,
G Gray, 548.
Sect. 4.] HOW WAYS MAY BE USED. 247
be for the jury to say whether the owner of the easement was
thereby impeded in the use of a convenient way.^
But where the grant was of a right " in and over and
through a forty feet street," it was hel(i to give a way unob-
structed over any and every part of it, as a strip of land dedi-
cated to the purposes of a street in tlie neigliborhood of the
locality of the premises.^
10. The grant of a right of way carries with it all rights
to the use of the soil which are properly incident to the free
exercise and enjoyment of the right granted or reserved.
Thus, a right of way to a warehouse would authorize the
tenant of such warehouse to place on the ground goods
brought to the warehouse, and to keep them a reasonable
and convenient time to put them in store, and to place and
keep goods on the ground a reasonable length of time, which
are to be carried from the warehouse. And what would be
such reasonable and convenient time would be a question of
fact depending upon many circumstances. What would be
an unreasonable length of time to leave goods upon a side-
walk, or in a street which^was much frequented, would not
be so on rear ground, where they would encumber no one
having an equal right of way. In applying these general
principles, it was held that, where a warehouse was granted
with a right of passage which had been used for carrying
goods to and from the same, " in as full and ample a manner
as they now are or heretofore have been used and enjoyed,"
these were not words of restriction nor limitation of the use
to such as had been made of it, and none other. If, for in-
stance, the way used had been over the natural surface of
the earth, the grantee might improve it by macadjjmizing,
paving, or planking it, being limited to the use of
*the same right, in a manner more convenient and [*191]
beneficial to himself, without injury to those having
the common right, but he might not use it for another and
' Johnson v. Kinnicutt, 2 Cush. 1.53.
- Tudor Ice Co. v. Cunuingham, 8 Allen, 141.
248 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. II.
distinct purpose. If the tenant in sucli case were to lay a
railway track in such passage-way, for the purpose of moving
his goods thereon, it would be a question for the jury whether
the same interrupted other abutters in their use of the sur-
face as a passage-way, or caused any actual damage to the
owner of the soil, or was or was not a use of the soil for a
distinct purpose beyond that of a right of way. But if wliat
the tenant did was only an improvement of the surface, to fit
it the better for the passage of persons, teams, and carriages,
and the transportation of merchandise not injurious to the
other abutters, nor to the owner of the soil, it would not be
a new and distinct use of the soil. It was within the right
of way reserved to the abutters, and uot adverse to the right
of the owner, and no action therefor would lie.^
11. In Metropolitan Cemetery Company v. Eden the ques-
tion was to determine the extent of the way granted, where
the grant was of a parcel of land, referring to a plan, on one
side of which was a way or road, " together with full and
free liberty, license, &c., to the grantees and all persons com-
ing to or going from the same la^id, or any part thereof, to
use and enjoy," &c., " the roads or ways leading to and from
the same land, as the same ways were described in the said
map or plan." On the plan there was a hedge by the side of
the parcel of land next to the way, in which were two gates.
The purchaser cut down that hedge and laid a heavy wall in
its place, with gates in different places from those indicated
on the plan, and formerly standing in the hedge. A pur-
chaser of the land upon the opposite side of the way, the fee
of which still remained in the original grantor, altered the
way by ^digging it down in front of these new gates. And
the question was, whether the first pvirchaser
[*192] *was not restricted to the gates as they were origi-
nally placed, and whether he had a right to com-
plain of the obstruction to gates placed at different points
1 Appleton V. Fullerton, I Gray, 186, 194; Brown v. Stone, 10 Gray, 65; Ly-
man V. Arnolil, 5 Mason, 198.
Sect. 4.] HOW WAYS MAY BE USED. 249
from these. But the court held that the right of access to
the lot over the way indicated upon the plan was indefinite,
and might be used anywhere ; that making this wall did not
deprive liim of the right to use any other way of access,
whenever lie chose to open such a way, and that the rule
was altogether different where the way is indefinite from
what it is if defined. In the latter case, it cannot be ex-
ceeded or used in any other place or mode than that ex-
pressed in the deed.^
And this will probably serve for a clew to reconcile what
may sometimes seem an inconsistency in referring, as courts
often do, to the state and condition of the premises or plans
thereof, in determining what rights and easements pass there-
with ; as in this case, though there was a defined way laid
down upon the plan, it was to be used by persons coming
from or going to " any part " of the granted premises, and
did not specify the gates on the plan as the mode of access
to the premises.
12. To illustrate, further-, the principles of construction
which courts adopt in ascertaining the limits of grants of
ways, the case of Allan v. Gomme, which was elaborately
considered, is referred to, not only for the principal point
raised and settled in it, but for sundry collateral points
which received the attention of the court and were applied
in settling the main question. The grant in that case was
of " a right of way and passage over said close, &c., to the
stable and loft over the same, and the space and opening
under the said loft, and then used as a wood-house." The
grantee of this way, after this, converted this loft and
space under it used as a wood-house into a cottage,
and undertook to use the way for the purposes of the
cottage. The question was, whether this grant of
way was to the *place occupied by the loft and space [*193]
for any purposes to which they might be appropri-
ated, or was limited to the use of it as a wood-house, or what
1 Mctropolitau Cemetery Co. v. Eden, 16 C. B. 42.
250 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. II.
was its limit. The court held that it was not limited to
purposes of a wood-house alone, and that a reference to the
wood-house was to indicate the terminus of tlie way ; nor was
it a way for all purposes, for if so, a grant of a way to go
across a man's yard might be turned into a way for a village
to be built at the end of it. They held it was to be taken
as intending a way to an open space of ground generally,
which was to be in the same predicament in which it was at
the time of making the deed, but to be used for any pur-
poses the grantee chose, provided it continued in the same
open state, and not to be used for buildings to be erected
thereon. One case, put for illustration by Denman, C. J.,
was that of a way to a field of many acres, then in corn or
pasture, reserved over a small parcel granted for a man's
yard ; and if the grantor were to build a village on his field,
it would not be claimed that the reservation of such a way
could be extended to such a use.^
13. In the case of Henning v. Burnet, the extent to which
the doctrine of Allan v. Gomme might lead, from the terms
there employed, was somewhat modified, though its general
doctrine, that reference is to be had to the existing state of
things at the time the grant is made in construing its terms
and meaning in respect to the nature and extent of the ease-
ments that pass with it, is not impugned.
In that case the owner of a dwelling-house, coach-house,
and stable had a field which belonged and was used with
the same, constituting together one estate. There was a
private carriage-way from a turnpike to his dwelling-house
and coach-house, and also to the field, by a gate from the car-
riage-road opening into the field at a particular point
[*194] *at the end of the carriage-way. He conveyed the
above premises, " with free liberty of ingress with
cattle," <tc., in, over, and upon the carriage road, &c., to
the dwelling-house, coach-house, and stables. The pur-
chaser of the estate tore down the carriage-house and stables,
J Allan V. Gomme, 1 1 Adolph. & E. 759,
Sect. 4.] HOW WAYS MAY BE USED. 251
and built a wall across the private way, and opened a gate
from the carriage-way to another corner of the field. It was
held that he had no right to use this new entrance into the
field. In fact, there was no way, in terms, granted in re-
spect to the field, and the only way which had been used to
reach it was from the end of the carriage-way, which only
authorized the grantee to go through the old gate, and was
the only way that passed by the grant.^
14. In Dand v. Kingscote, a grant of land was made, re-
serving the mines within it, with sufficient " way leave " and
" stay leave," with liberty of sinking and digging pits. It
was held that by this reservation the grantor had no right to
use this way for the purpose of drawing coal from under an
adjacent lot of land, and in so doing he was a trespasser, and
that the limit of the easement reserved, and the mode of
using it, were what was reasonably convenient, according to
the mode in general use when the right was to be exercised.
If, tlierefore, in the progress of improvement, better or more
feasible ways are devised and applied to use tlian those known
and used at the time when the grant was first made, the
mine-owner, under a reservation in this general form, might
adopt the improved way ; as, for instance, he might substi-
tute a railway for a wagon-way, by which to transport the
coal from the pit across the granted premises, altliough the
construction of such new way would subject the land-owner
to the inconvenience of having it laid down in the place of
the former one. Under this reservation, the grantor, more-
over, might fix such machinery upon the premises
as would be necessary to drain the mines, and *draw [*195]
the coal from the same, and, in that case, he was
held justified in erecting thereon a steam-engine and an en-
gine-house, and constructing a pond upon the premises to
supply water for working the engine.^
1 Henning v. Burnet, 8 Exch. 187,
2 Daud V. Kiugscotc, 6 Mees. & W. 174.
252 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. II.
SECTION V.
OF THE RIGHTS OF THE LAND-OWNER AND WAY-OWNER IN LAND.
1. Land-owner may do anything not injurious to owner of the way.
2. Land-owner has same rights as to private as to public ways.
3. Owner of way may, and ordinarily must, repair it.
4. Limitations and exceptions as to general duty to repair.
5. Williams v. Safford. Of going exti-a vinm, if way is impassable.
6. What way-owner may do with or upon the soil.
7. Egress, regress, fishing, and fowling give no right to things growing.
8. Eight of way to carry coals, what is embraced in it.
9. How far one way may be exchanged for another.
1. The respective rights of the owners of the soil and of
the easement to do acts upon the soil over or adjoining
which the easement of way exists, were considered in Un-
derwood V. Carney, where it was held that, if one grant a
way across his land, he has no right to make any such use of
the land adjoining it as produces any serious inconvenience
to the owner of the easement. He may make a reasonable
use of it, having reference to the public and general use
which others make of their lands which are similarly situ-
ated. And in addition to what is said of the riglit to main-
tain fences across a way by the land-owner (ante p. *160),
it seems to be now settled that if the land-owner is not re-
strained by the terms of the grant of a right of way across
his lands for agricultural purposes, he may maintain fences
across such way, if provided with suitable bars or gates for
the convenience of the owner of the way. He is not obliged
to leave it as an open way, nor to provide swing gates, if a
reasonably convenient mode of passage is furnished.^ Thus,
in the case of a grant of a right of way over a place or court
in Boston, the owner of the soil of the court erected stores
upon tlio adjacent land, and laid sidewalks in front of the
1 Bakeman v. Talbot, 31 N. Y. 366 ; Bean v. Coleman, 44 N. II. 539 ; Max-
well V. M'Atee, 9 13. l\Ion. 20; Cowling v. Iligginson, 4 M. & W. 245. See
State I', ruttis, 7 liich. 390,
Sect. 5.] EIGHTS OF LAND-OWNER, ETC. IN LAND. 253
same, and opened passages into tlie cellars under the stores,
and swung window-shutters over the line of the way, and it
was held to be a lawful use of the adjacent land,
being a customary one.^ So the owner of land *ad- [*19G]
joining a way may dig cellars by the side of it, if in
towns or cities, and may lay building materials thereon, if
he takes care not improperly to obstruct the same, and re-
moves the materials within a reasonable time.^
2. So the owner of the soil of a way, whether public or
private, may make any and all uses to which the land can
be applied, and all profits which can be derived from it con-
sistently with the enjoyment of the easement. He may, as
before stated, maintain ejectment to recover the land, and
if the way is discontinued, he holds it again free from en-
cumbrance. He may sink a drain or a watercourse below the
surface, if he do it so as not to deprive the public of their
easement.''^ He may have an action of tort against one who
erects his house fronting upon the line of the street, and ex-
tending his bay window over the land of the highway though
it be so high above the vehicles passing along the same as
not to affect the travel injuriously. The act in the case
cited, being of the character of a permanent occupation, rests
upon a different ground from that of O'Linda v. Lathrop,*
or Underwood v. Carney,^ which was a temporary use con-
nected with the purposes of the way.*^ So the owner of the
land occupied by a highway, may have trespass for entering
upon the same and digging into the side of it to widen the
travelled part of it, though such act by a highway surveyor
would be a lawful one."
1 Underwood v. Carney, 1 Cush. 292.
- O'Linda v. Lothrop, 21 Pick. 292.
3 Perley v. Ciiandler, 6 Mass. 454 ; Green v. Chelsea, 24 Pick. 71 ; Pomeroy
V. Mills, 3 Vt. 279; Lade v. Shepherd, 2 Strange, 1004; Adams v. Emerson, 6
Pick. 57 ; Atkins v. Bordman, 2 Mete. 457.
* 21 Pick. 292.
5 1 Cush. 292.
^ Cod man v. Evans, 5 Allen, 308.
' HoUeubeck v. llowley, 8 Allen, 476.
254 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. II.
3. The owner of a private way may enter upon the same
and repair it, or put it into a condition to be used, and,
ordinarily, it is incumbent upon the owner of the way to
keep it in repair. ^ The owner of the way, for this purpose,
has a right to do what is necessary upon the soil to make it
safe and convenient for use, such as removing rocks to make
the way, &c. Tlie rocks, however, would belong to the
owner of the soil, except so far as they were needed in mak-
ing or repairing the way ,2 and this doctrine was extended to
constructing and using a canal under a grant of an easement
of a canal across another's land.^ Nor would he have a
right to go outside of the limits of such way, if defined and
designated, in passing from one point to another, although
the way were impassable by being overflowed or out of re-
pair.* But a different rule prevails in respect to public
ways.^ Though, even then, he could only justify removing
enough of the fences of the adjoining close to enable him
to pass around the obstruction, doing no unnecessary in-
jury.6
[*197] *4. The exceptions to these rules are few, and
grow out of the peculiar circumstances of particular
cases. Thus the grantor of a way over his land may be
bound by covenant to keep the same in repair, or the owner
of the soil may be bound by prescription to support and
1 Gerrard v. Cooke, 2 Bos. & P. n. r. 109 ; Osborn v. Wise, 7 Carr. & P. 761 ;
D. 8, 1, 10 ; 1 Fournel, Traite' du Voisinage, 258 ; Wynkoop v. Burger, 12 Jdins-
222 ; Doanc v. Badger, 12 Mass. 65, 70 ; Atkins v. Bordman, 2 Mete. 457.
2 Smith V. Rome, 19 Geo. 92 ; Brown v. Stone, 10 Gray, 65 ; Appleton v. Fuller-
ton, 1 Gray, 186 ; Maxwell v. M'Atee, 9 B. Mon. 20 ; Bean v. Coleman, 44 N.
H. 539.
2 Lyman v. Arnold, 5 Mason, 198.
* Taylor v. Whitehead, 2 Doug. 745 ; Bullard v. Harrison, 4 Manle & S. 387 ;
Miller v. Bristol, 12 Pick. 550; Holmes v. Seely, 19 Wend. 507; Capers v.
M'Kce, 1 Strobh. 168; Williams v. Saftbrd, 7 Barb. 309; Bakeman ?;. Talbot,
31 N. Y. 372.
^ Taylor v. Whitehead, 2 Doug. 745 ; Campbell v. Race, 7 Cush. 408 ; Bul-
lard V. Harrison, 4 Maulc & S. 387; Holmes v. Seely, 19 Wend. 507; 3 Dane,
Abr. 258; State v. Northumberland, 44 N. H. 631.
*i Williams v. Saflbrd, 7 Burl). 309.
Sect. 5.] RIGHTS OF LAXD-OWXER, ETC. IN LAND. 255
maintain tlic way.^ If the public locate a way across an
existing watercourse, the public must maintain a bridge
across tlie same, and may not stop the watercourse. But if
the owner of the soil constructs a watercourse under the
highway already existing, he must keep the bridge over the
same in repair, or be liable to indictment.^ And if one has
a right of way across the land of another, which is not
limited and defined, and the owner of the land obstruct the
same, the owner of the way may pass over the adjacent
lands of such land-owner, doing no unnecessary damage
thereby .'5 And if the way is claimed and enjoyed as one of
necessity, and the way previously in use shall be obstructed
without the fault of the owner of it, by flood, for instance, it
is stated by some authorities that he may, if necessary, pass
over other lands of the owner of the soil of such way, doing
no unnecessary damage thereby.'*
Mr. Tudor, upon the strength of a case cited by counsel
in Henn's case,'^ says : "If a way becomes impassable
through want of repairs which ought to have been done
by the owner of the land, the owner of the dominant tene-
ment may, it seems, justify his trespass by deviating from the
ordinary track." "^
Tlie case from Sir William Jones was this. It was trespass
qu. cl. The defendant pleaded a right of way by a " common
footpath through the close." The plaintiff replied,
that the defendant went out of the path. The *de- [*198]
fendant rejoined, that the footpath was founderous,
&c., " in default of tlie plaintiff, who ought to amend it,"
and therefore he passed along as near the path as he could.
" And this was resolved a good plea and justification."
1 Doane v. Badger, 12 Mass. 65, 70; Taylor v. Wliitehead, 2 Doug. 745.
2 Perley v. Chandler, 6 Mass. 454.
3 Leonard v. Leonard, 2 Allen, 543 ; Farnum v. Piatt, 8 Pick. 339.
* Holmes v. Seoly, 19 Wend. 507 ; Woolr. Ways, 51. See Taylor v. White
head, 2 Doug. 749 ; Capers v. M'Kee, 1 Strobh. 168.
5 Henn's ease, W. Jones, 296.
6 Tud. Lead. Cas. 127.
256 THE LAW OF EASEMENTS AND SERVITUDES. [Cir. II.
"Whether callhig it a " common footpath " took this out of
the category of private ways, is not stated.
5. Several of the questions involved in the foregoing
propositions were considered in Williams v. Safford. It was
there held, that the owner of a private way had no right to
go upon other land than the way itself, although the owner
of the land shall have put obstructions in the way. The law
gives the owner of the way no remedy but by abating the
nuisance, or an action for damages. The grantee of a
private way is himself bound to keep it in repair. He alone
has the right of using it. He alone can prosecute for an
obstruction of it. "In Taylor v. Whitehead," says Willard,
J., " Buller, J. observes that, if the way pleaded in that
case had been a way of necessity, the question whether in
case it became founderous the owner might go extra viam
would have required consideration. This dictum has given
rise to the intimation, in Woolrych on Ways,^ and of Nelson,
C. J., in Holmes v. Seely, that ' there is a distinction be-
tween a private way by grant and one of necessity, resting
upon the ground that the one is the grant of a specific track
over the close, while the other is a general right of way over
it ; the one an express specific grant, the other a more
general, implied one.' It is believed, however, that there
is no such distinction between them. A private way of ne-
cessity is nothing else but a way by grant. Such way does
not give the owner a right to go at random over the entire
close. He has a right merely to a convenient way, due
regard being had to the convenience of both parties. But
after the way has been once assigned, or selected, it rests on
the same footing as any other way by grant, and
[*199] both *parties are bound by it ; the grantor not to
obstruct it, and the grantee to be confined to it
It makes no difference whether the road was obstructed by
the plaintiff or a stranger, or by the act of God. In neither
case can the defendant justify a trespass extra viam
1 Woolr. Ways, 51.
Sect. 5.] . RIGHTS OF LAND-OWNER, ETC. IN LAND. 257
The same doctrine applies with respect to a private road by
prescription, that governs in the case of grants." ^
6. The grant of a parcel of land bounded upon a passage-
way gives the grantee a right of way over the same, but not
a right to take and carry away the materials thereof. But
he would have a right to use the sand, gravel, stone, &c.,
within the passage-way for grading, fitting, and repairing it.^
And where one owning the soil of a way, upon which his
own house stood, granted to the owner of another house
which abutted thereon, a right to pass over the same as a
foot or carriage way for twenty yards from H. Street, it was
held that such grantee might make the way dry and safe for
use in a manner most convenient to himself, provided he did
not thereby cause inconvenience to his grantor. And it was
accordingly held, that he might, for that purpose, lay a flag-
stone at his door within the passage-way.^
7. But a grant of a right of ingress and regress over land,
and of fishing and fowling thereon, gives no right to take
wood, grass, or any other thing properly appertaining to the
ownership of the soil.*
8. The grant of a way to carry coals gives such grantee a
right to lay down such tracks in the grantor's land, between
the termini of the way, as are usually adopted for that pur-
pose, provided the same are necessary to enable the grantee
to carry out the purposes of the grant.^
*So where there was a grant of land reserving the [*200]
mines, with a right of necessary and convenient ways
for the purpose, " and particularly of laying, making, and
granting wagon-ways in and over the said premises, or any
part thereof." It was held that this was limited to such
ways as were necessary to get at and remove the mineral.
Nor would the grantee of the land have any cause of action
1 Williams v. Safford, 7 Barb. 309. Sec also Boyce v. Brown, 7 Barb. 80.
2 Phillips V. Bowers, 7 Gray, 21.
3 Gerrard v. Cooke, 2 Bos. & P. n. k. 109.
* Emans v. Turnbull, 2 Johns. 313.
6 Senhouse v. Christian, 1 T. R. 560.
17
258 THE LAW OF EASEMENTS AND SERVITUDES. • [Cn. II.
by reason of constructing such a way upon the land, though
intended to be used for other purposes. But if tlie road
actually made be not of the description mentioned in the
deed, the owner of the soil would have a right of action
therefor. 1
9. Questions have occasionally arisen in respect to substi-
tuting one way for another, and how far, where this has been
done, it is binding upon the parties. The head-note of the
case of Pope v. Devereux is in these words : " Evidence of
an executed oral agreement between the owners of the domi-
nant and servient tenements, to discontinue an old way and
substitute a different one, is competent evidence of a surren-
der of the old. way." ^ And in the case of Smith v. Lee, the
language of the judge, though it may be considered as some-
what obiter, is : " "When a right of way in a certain locality
exists, it may be changed by the verbal agreement of the par-
ties in interest, and when the change is actually made, and
a new way is thus adopted by them, it fixes and determines
their respective rights." ^
It was held by the same court, that, where one undertook
to change a way, which had been acquired by prescription,
over his land, a part of which land he had sold to B., for the
purpose of relieving the part so conveyed from the encum-
brance of the way, but by mistake he made the new way,
for a part of the distance, over B.'s land, so purchased by
him, and the same was used fifteen years ; whether this
shall be an effectual substitution by which the parties shall
be bound, depended upon whether it was known and acqui-
esced in by B. If it was, he would be bound by it. If he
did not know it, no use, short of twenty years, would make
it valid and binding upon the owner of the land.*
The case of Crounse v. Wemple involved the question of
1 Durham & Sunderland K. R. Co. v. Walker, 2 Q. B. 940, 9GG ; Bowes i;.
Ravens worth, 15 C. B. .512.
2 Pope V. Devereux, 5 Gray, 409.
8 Smith V. Lee, 14 Gray, 473.
* Gage V. ritts, 8 Allen, 531.
Sect. 5.] EIGHTS OF LAND-OWNER, ETC. IN LAND. 259
a substitution of one way for another, though the vague
manner in which the opinion is given can aid but little in
settling the principle upon which other like cases are to be
determined. In that case the way in question was one from
a highway to a mill, passing through a swamp. Tlie owner
of the way used a new way a part of the distance, so as to
avoid the swamp, and it was held that he did not thereby
lose his prescriptive right over the other parts of the way.
Nor would it affect his right that the way had, by reason of
a new way being opened, ceased to be of as mucli importance
to him as it once had been. A part of the charge of the
judge to the jury who tried the case, and which seems to
have been approved by the Court of Appeals, was, " that it
was competent for the owner of the right of way and of the
land over which it runs, to alter its location, and wdien it is
changed it was for the jury to say whether such change was
intended to be a permanent one or merely temporary, and if
the new way has been used by the party owning the easement,
and the owner of the land forbids the use of the new road,
if the right to use it exists by license, the owner of the way
may go back to the old road. But if such change was the
result of an agreement to make a permanent change, then
the right to change back did not attach, in the event of the
owner of the land closing the new way." In other words,
it would seem, though not so directly ruled, that in the
latter case the original way is lost by abandonment, though
the new way has not been enjoyed long enough to give a
prescriptive right to the same, if this case is to stand as
law.i
If it was intended to say that one who has a definite way
over another's land can excliange that with the owner of
the land for another definite way across hi^ land, by a mere
parol agreement, followed by an enjoyment of the new
way for less than twenty years, and thereby lose his title
to the first and gain a legal title to the second, as of an
1 Crounsc v. Wemple, 29 N. Y. 540.
2G0 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. 11.
[*201] *incorporeal hereditament, it seems to be doing
violence to the notion, tliat such an independent
easement can only be created and acquired by deed of grant,
as well as to modern English authorities. If I cannot ac-
quire a right of way as appurtenant to my land over my
neighbor's land without a deed, where the consideration
which I pay him therefor is a sum of money, or an article
of merchandise, would it be otherwise if I paid for it by giv-
ing up to him an interest in land like another easement, even
in his own land ? Could A acquire a right of way as an ap-
purtenant to Black Acre, over another's land without a deed,
by giving in exchange by parol a right to maintain a trench
across other lands of the same man ?
Several of the authorities upo^i the subject are collected
by Woolrych, and, althougli cases have occurred where the
stoppage of one way and the opening of another have been
held to be a license to use such new way, it was, after all, a
revocable license, and the party was thereupon remitted to
his original right of way. Among the cases cited was that of
Reignolds v. Edwards,^ and of Home v. Widlake.^
The case of Lovell v. Smith expressly holds that a parol
agreement to substitute a new way for an old prescriptive
way, though followed by a discontinuance of tlie use of the
old way, would not amount to an abandonment of it.^
Nor is the doctrine sustained by cases like that of Larned
V. Larned,'^ where a way gained by dedication has been given
up in favor of another way dedicated in its stead, since a
dedication neither requires a formal grant nor a long-con-
tinued enjoyment to give it effect.
In the case of Reignolds v. Edwards, the owner of the
land over which the defendant had a right of way fenced it
up, but opened another, which the defendant used
[*202J for *several years, when the owner of the land shut
1 Woolr. Ways, 22, 51 ; Reignolds v. Edwards, Willcs, 282.
2 Home V. Widliike, Yelv. 141.
8 Lovell V. Smith, .3 C. B. n. s. 120.
* Larned o. Larned, U Mete. 421 ; 2 Waslib. Real Prop. 57.
Sect. 5.] RIGHTS OF LAND-OWNER, ETC. IN LAND. 2G1
up the new way, and tlie defendant, having occasion to
use it, broke down the fence and passed over the new way.
But the court say : " This new way was only a way by suf-
ferance, and either party might determine it at his pleasure ;
and the plaintiff, in this case, has determined liis will by
fastening the gate, and so the defendant ought to have had
recourse to his old way."
The case of Hamilton v. White, though in many respects
like some of those cited above, does not seem to be very satis-
factory, as settling the question, either way. But it does
not hold that there can be a valid and effectual substitution
of one way for another by parol, whereby the first is extin-
guished and the second becomes a permanent easement in
the servient tenement, though followed by use for less than
twenty years.
In that case, one had a right of way by prescription from
a highway to his land, over the plaintiff's land. By agree-
ment between the parties, this was changed, the first one
closed and another opened, and was used for ten or twelve
years. This way lay across a ditch or stream, over which
was a bridge. The plaintiff took up this bridge, leaving the
way otherwise open as usual, and the defendant, having oc-
casion to use it, passed along the way to the stream, and,
finding the bridge gone, threw in earth, over which he
passed, though forbidden by the owner, and the owner of
the land brought trespass.
The court, Rnggles, C. J., referring to Reignolds v. Ed-
wards, says : " But the difference between that case and the
present is, that the new way in the present case remained
open. The bridge across the ditch had been removed, but
the way was not fenced up, and the defendants in passing
it were not compelled to break down or remove any wall,
fence, or enclosure." He also cites Home v. Widlake, above
cited, and dwells upon the fact that the plaintiff, instead of
objecting to the use of the new way, and offering
*the use of the old in its stead, objected to the de- [*203]
262 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. II.
fendant's using cither, and denied his right to any way,
when in fact the defendant had a right of way over the
land. He adds : " If it be admitted that the right to the
new track, not being created by grant, nor acquired by user
of twenty years, was held at the will of the plaintiff, he ought
not to be permitted to put an end to that will, without open-
ing the old route or consenting that the defendants might
use it If he chose to put an end to the defendants'
right of passing by the new way, he should have opened the
way to which the defendants had a lawful title. By denying
the defendants' right of way altogether, the plaintiff showed
his intention of putting the controversy between himself and
the defendants, on the ground that the defendants had no
right at all ; and on that point the cause was tried. "^ •
The case, therefore, obviously turns upon the peculiar cir-
cumstances under which the way was used, and does not, in
terms or by implication, affirm that the owner of the way had
become entitled to the new one, by the way of substitution
or exchange, as a permanent easement.
■ It is more lilie the case where the owner of the land over
which another has a right of way should put an obstruction
in it at some point, and the owner of the way, having occa-
sion to pass over it, should avoid such obstruction by going
upon the adjacent land of the servient tenement, which some
authorities, as has been before stated, maintain he might do.
And though not directly in point, the language of Patte-
son, J., in Payne v. Shedden, in applying the doctrine of the
statute of 2 & 3 Wm. IV. c. 71, has a bearing upon the
question examined above. " So if, instead of the direct
path from A to B, another track over the plaintiff's land
from A to C, and thence to B, had been substituted
[*204] by parol *agrcement of the parties for an indefinite
time, yet the user of this substituted line may be
considered as substantially an exercise of the old right, and
evidence of the continued enjoyment of it." Tliis was pre-
1 Iliimilton V. Wliitc, 1 Scld. 9. Sec s. c, 4 Barb. 60.
Sect. 5.] RIGHTS OF LAND-OWNER, ETC. IN LAND. 263
faced by the remark, that "the agreement to suspend the
enjoyment of the right does not extinguish, nor is it incon-
sistent with the right." ^
And in Carr v. Foster, in speaking of the above case, he
says : " I thought there, that if I have a riglit over another's
land, and he for a time gives me a consideration for ceasing
to exercise it, I enjoy the right while receiving the compen-
sation." ^
1 Payne v. Slieddcn, 1 Mood. & R. 382.
2 Carr v. Foster, 3 Q. B. 581.
[*205] ^CHAPTER III.
OF EASEMENTS AND SERVITUDES OF WATER.
Sect. 1. Of Property in Streams and Watercourses.
Sect. 2. Of Right of Irrigation.
Sect. 3. Of the Use of Water for MUls.
Sect. 4. Of Rights in Artificial Watercourses.
Sect. 5. Of several special Laws as to Mills.
Sect. 6. Of Rights in Rain and Surface Water.
Sect. 7. Of Rights in Subterranean Waters.
Sect. 8. Of Rights to Eaves' Drip. '
Sect. 9. Of Rights of Passage in public Streams.
Sect. 10. Of Rights in Water by Custom.
Sect. 11. Of Rights of Fishery.
Sect. 12. Of Servitudes of Water by the Civil Law, &c.
SECTION I.
OF PROPERTY. IN STREAMS AND WATERCOURSES.
1. Easements and servitudes in water classed by the Civil Law.
2. Easements and servitudes imply two estates.
3. 4. Of water and its use as the subject of property.
5. Classification of the subject in respect to easements.
6. Watercourses, &c. defined.
7. Waters of springs, wells, and surface-drains.
8. Streams as part of the freehold.
9. The use of water neither public nor exclusive.
10. Of the right to the flow of water as a natural easement.
11. Of riparian rights to the flow and use of water.
12. Action lies for an unreasonable use of water.
13. Of the various uses of water, and when it may be diverted.
14. Of the ownership of a stream by opposite riparian proprietors.
15. What use of water takes precedence of other uses as a right.
16. Of the right to havo water flow from one's premises.
Sect. 1.] PROPERTY IN STREAMS AND WATERCOURSES. 265
*17. Who to keep the channel of a watercourse clear. [*206]
18. Of the right to have water in a pure and natural state.
19. How far a right to receive and discharge water, an easement to land.
20. How and to what extent easements of water may be acquired.
21. The divisions of the subject of easements of water.
1. Another class of the praedial servitudes, known to the
civil law as rural or rustic, in distinction from those called
urban, relate to " the conducting and using of water." It
embraces a variety of forms, bearing different specific names.
And, besides these, there were urban servitudes connected
with the conducting of water, such as that of eaves' drip,
called Stillicidium, and that of a sewer of an adjacent own-
er's estate. 1
It is proposed to treat of both these classes under one
head, under the name of easements and servitudes, and to
apply to them the rules of the common law.
2. It will be borne in mind, that, as by a servitude or
easement is meant a right which is granted for the advantage
of one piece of land in or over another, it always presupposes
two parcels, and these belonging to different proprietors, one
of which is burdened with the servitude called the servient,
and one for the advantage of which the sen'itude is con-
ferred, called the dominant estate.^
3. As water, from its nature, is ordinarily passing from a
higher to a lower level, till it reaches the point wliere it is
lost by absorption, evaporation, or discharge into the ocean ;
and inasmuch as its use may not only be available when
wholly enjoyed upon the estate of a land-owner, but its
benefit may often be derived, more or less immediately, from
its being managed or controlled by such land-owner, in its
passage through the estate of another, — it becomes impor-
tant to define what a land-owner's rights and duties are in
respect to water found within his premises. Tliis
becomes *the more important, in order to discrimi- [*207]
1 Kauff. Mackeldey, 342-345 ; Wood, Inst. Civ. Law, 91-93; 1 Brown, Civ.
Law, 182.
2 Kauff. Mackeldey, 335 ; 1 Brown, Civ. Law, 182.
266 ■ THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
nate between what rights one may claim as naturally inci-
dent to the ownership of his estate, and those to which he
is entitled, or is subject, in respect to such ownership, in
its connection with other estates, and constituting, in respect
to his own, a servitude or easement.
4. As forming the subject of property, in connection with
the realty, water may be viewed in two lights; — one, as
constituting one of tlie elements of which an estate is com-
posed, and giving, by its qualities and susceptibilities of use,
a value to such estate ; the other, as being valuable alone
for its use, to be enjoyed in connection with the occupation of
the soil.
In the latter sense, it constitutes an incorporeal heredita-
ment, to which the term easement is applied. But in neither
light is it tlie water itself of which property is predicated.
And it is of its use alone as an element, and the right to
enjoy it in connection with some portion of the soil, that it
is proposed to treat in the present chapter. ^
5. In considering, then, what are the rights of a land-
owner in respect to the use of water which naturally belongs
to his freehold, in order to see what will make his a domi-
nant or servient estate in respect to acquiring new rights
or losing those originally belonging to it, resulting from the
use of the water by himself or others, it will be necessary
to treat the subject under different heads. And it is pro-
posed, for purposes of general classification, to consider, —
1st. The rights of the land-owner as such, or as the owner
of works to be operated by the same, to running streams
or watercourses generally ; 2d. The rights and
[*208J *dutics of persons interested in surface or natural
drainage ; 3d. Their rights in respect to under-
ground or percolating waters.
1 Gould V. Boston Duck Co., 13 Gray, 443 ; Gary v. Daniels, 8 Mctc. 466, 480 ;
Campljell v. Smith, 3 Ilalst. 140, 145; Gardner v. Trustees of Village of New-
burgli, 2 Johns. Ch. 162 ; ITenrlriek v. Cook, 4 Ga. 241, 25.'5 ; Plumleigh v. Daw-
eon, 1 Gilni. .')44 ; Woolr. Waters, 117 ; Stein v. Burden, 29 Ala. 127 ; s. c, 24
Ala. 130; Burden v. Steiii, 27 Ala. 104; Crittenton i;. Alger, 1 1 Mete. 281; 5
Durauton, Cours dc Droit Fram/ais, 200 ; Davis v. Gctclieli, 50 Maine, 604.
Sect. 1.] PROPERTY IN STREAMS AND WATERCOURSES. 267
6. The term Watercourse, in this classification, is intended
to include all running streams of water, though writers often
describe these by different distinctive terms, such as Rivers,
Brooks, and the like.
Woolrych, borrowing from Callis, defines a river, "A
running stream, pent in on either side with walls and banks,
and it bears that name as well where the waters flow and
reflow, as where they have their current one way." ^
Callis defines a sewer, "A fresh-water trench, compassed
in on both sides with a bank, and is a small current, or little
river."
" A gutter is of less size, and of a narrower passage and
current, than a sewer is." " A seiuer is a common public
stream, — a gutter, a straight private running water."
" A ditch is a kind of current of waters in infimo gradu.''^
But the law only recognizes ditches as such, " which have
a kind of current, and which in some sort partake with
rivers." ^
The term "watercourse," when used in a grant, may mean
the channel through which water flows, or the stream that
flows through it, and whether it be the one or the other
depends upon the context. If used in the first sense, it is a
corporeal hereditament ; if in the second, it is an incorporeal
one.^ And it was held that a grant of " a river as it winds
and turns, including the same," passed no land, recognizing
the doctrine, as stated by Coke, that, " if a man grant aquam
suam, the soil shall not pass, but the piscary within the water
passeth therewith." ■^
A stream may acquire the name of a river, in the
channel *of which, at some seasons of extreme [*209]
drought, no water flows.^
1 Woolr. Waters, 31 ; Callis, Sewers, 54.
2 Callis, Sewers, 57, 58, 59.
8 Doc V. Williams, 11 Q. B. 688, 700; Woolr. Waters, 117.
. * Jackson v. Halstead, 5 Cow. 219; Co. Litt. 4 h.
s Reynolds v. M'Arthur, 2 Pet. 417,438; Ashley v. Wolcott, 11 Cush. 195;
Bangor r. Lansil, 51 Maine, 525.
268 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
And, as a general proposition, wherever there is a steady,
uniform current of water, it constitutes a river, though this
does not include a lake through which there is a current
from its head to its outlet.^ And where a river is divided
by an island or intervening parcel of land, each branch
becomes a watercourse with all its incidents, and this though
the island be formed in the stream, and there would be a
filum aqucc to each of the streams or watercourses.^
To maintain the right to a watercourse or brook, it must
be made to appear that the water usually flows in a certain
direction, and by a regular channel with banks or sides;
mere surface drainage at certain seasons of the year, when
the water is high, is not a stream or brook.^
Among the definitions of a watercourse which may be
found in the books, the following by Bigelow, J., in Luther
V. Winnisimmet Company, is perhaps the most accurate
and compendious : " A stream of water usually flowing in
a definite channel, having a bed, sides, or banks, and usually
discharging itself into some other stream or body of water.
To constitute a watercourse, the size of the stream is not
important ; it might be very small, and the flow of the water
need not be constant. But it must be something more than
a mere surface drainage over the entire face of a tract of
land, occasioned by unusual freshets or other extraordinary
causes."^ It was accordingly held, in another case, that
" the accustomed, though not continuous, flowage of waters"
(in this case from springs) " is a stream in the eye of the
law, and its channel is no more to be obstructed than if it
was the channel of a stream that never failed." ^ So where
water rose from a spring and ran off several rods in a de-
1 State V. Gilmanton, 14 N. H. 467, 476; s. c. 9 N. H. 461. ,
2 Luttrel's Case, 4 Co. 88 ; Trustees, &c. v. Dickinson, 9 Cush. 549.
8 Ashley v. Wolcott, II Cusli. 192; Bangor v. Lansil, sup.
* Luihcrv. Winnisimmet Co., 9 Cush. 171, 174; Ashley v. Woleott, II Cush.
192; Ward v. Metcalfe, Clayt., cd. 1651, 96; Shields i;. Arndt, 3 Green, Ch.
234 ; Kaufliiiaii v. Griesemcr, 26 Penn. St. 407 ; Earle v. Hart, 1 Bcasl. 280, 283.
^ Kaufi'tiian v. Griesemcr, 20 Tenn. St. 407.
Sect. 1.] PROPERTY IN STREAiMS AND WATERCOURSES. 269
fined stream with a current, and then came to marshy land,
where it s[)rcad itself over the ground, but still continued to'
flow sluggishly in a defined bed or depression, but not with a
sufficiently strong current to destroy the grass or break the
sod, till it reached another owner's land, who had a watering-
place for his cattle which was supplied by this water, it was
held to be a watercourse of which the owner of the higher
land had no right to stop the current and flow.^ Nor is it
essential to a watercourse, that the banks should be abso-
lutely unchangeable, the flow constant, nor the water en-
tirely unmixed with earth, nor moving with any fixed veloci-
ty .^ It need not be shown to flow continually, it may be
dry at times, but it must have a well-defined and substantial
existence.'^ It is immaterial how small it may be, if
it be well defined, nor, so far as *the rights of prop- [*210]
erty of the land-owner in a stream of water are con-
cerned, is it material whether it flows above or below the
surface, provided it be an ascertained current of flowing
water. And whatever may be its source, as soon as water
becomes a part of a natural stream, it belongs to him in
whom is the property of the stream itself.*
7. But the watercourses above described do not include
water flowing in the hollows or ravines in land, which is the
mere surface water from rains or melting snows, and is dis-
charged through these from a higher to a lower level, but
which at other times are destitute of water. And although,
when hereafter treating of servitudes which one parcel of
land may have in another in respect to surface water, the
circumstance of there being outlets for the same will be
seen to be an important consideration, it is not the right of
1 Gillett V. Johnson, 30 Conn. 180.
2 Basset v. Company, 43 N. H. 578.
» Ashley v. Wolcott, 11 Cush. 195.
* Dudden v. Guardians of Poor, &c., 1 Hurlst. & N. 627 ; Rawstron v. Taylor,
11 Exch. 369; Broadbent v. Ramsbotham, 11 Exch. 602; Wbeatly y. Baugh,
25 Penn. St. 528; Arnold v. Foote, 12 Wend. 330; Dickinson v. Grand Junc-
tion Canal Co., 7 Exch. 282, 301 ; Wood v. Waud, 3 Exch. 748, 779; Eddy v
Simpson, 3 Cal. 249.
270 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
property in such waters, or in their use, that is at present
*the subject of examination. Where a spring rises out of
the ground within one's estate, in such a manner as to
flow from its outlet or head in a defined current to the land
of another proprietor, he thereby acquires a right of prop-
erty in the use of its water, of which no one has a right
to deprive him. But where the water rose from subterra-
nean sources into a well which occasionally overflowed,
and diffused itself upon the surface, and was conducted off
in an artificial channel which was often dry, it was held not
to come within the category of running water, the benefit of
which a lower proprietor could claim as such. The same
rule applies to water which collects in low or swampy places
upon land, but has never formed for itself a defined channel
by which it reaches an existing watercourse, although if left
to itself it would by force of gravity eventually find
[*211] its way *into and help supply a stream which is run-
ning through another's land. The owner of the
land in which water thus situated is found, may do what he
will with the same, though he thereby prevents its reaching
the land of another, as it has been accustomed thus indirectly
to do.i
In one casej where the land adjoining a highway was
swampy, and received the water which flowed from the high-
way, and the owner filled it up so as to prevent the water
any longer flowing from the highway on to it, it was held
that he might lawfully do it.^ And in another case, the
court held that the owner of land over which the surface
water from another tract was accustomed to flow, might pro-
tect his land by raising it, though he thereby prevented the
flow of the water from the adjacent tract.-"^
1 Broadbent v. R.imsbotham, 11 Exch. 602; Rawstron v. Taylor, 11 Exch.
369, 382 - 384 ; Wadsworth, v. Tillotson, 1 5 Conn. 366, 373. In. Ashley v. Wol-
cott, 1 1 Cush. 1 92, the court waive the question of the right to stop the flow of
the surface water on one's land.
■■^ Bangor v. Lansil, .51 Maine, ■'J25.
8 Parks V. Newburyport, 10 Gray, 28; post, pp. *225, *355-*359, *362.
Sect. 1.] PROPERTY IN STREAMS AND WATERCOURSES. 271
And yet, if the doctrine elsewhere laid down is a sound and
tenable one, it would seem that, though for purposes of occu-
pying a lot by building upon it, or by raising it iip for pur-
poses of cultivation, the owner may prevent the surface
water of an upper lot from flowing on to it, he may not
stop it by a dike or bank along the upper line of his land,
leaving it as it was before in other respects.^
Where there is no watercourse by grant or prescription,
and no stipulation between conterminous proprietors of land
conce-rning the mode in which their respective parcels shall
be occupied and improved, no right to regulate or control
the surface drainage water can be asserted by the owner of
one lot over that of his neighbor. The owner of land may
occupy it in such manner or for such purpose as he sees fit,
either by changing the surface, or the erection of buildings
or other structures thereon, and this right is not restricted or
modified by the fact that his own land is so situated, in refer-
ence to that of adjoining owners, that an alteration in the
mode of its improvement or occupation, in any portion of it,
will cause water which may accumulate thereon by rains and
snows falling on its surface or flowing on to it over the sur-
face of adjacent lots, either to stand in unusual quantities on
other adjacent lands, or pass into and over the same in
greater quantities or in other directions than they are accus-
tomed to flow. Nor is it at all material whetlier a party
obstructs or changes the direction and flow of surface
water by preventing it from coming within the limits of his
land, or by erecting barriers or changing the level of the soil
so as to turn it off" in a new course after it has come within
his boundaries.^
A similar question to that discussed above, arose in a case
where the owner of land adjoining a highway filled it up,
and, at one point where there had been a gorge through
1 Sec ])ost, § 16, and cases cited.
2 Gannon v. Ilorgadon, 10 Allen, 106 ; Luther v. "\'\'innisimmet Ferry, 9 Cush
174.
272 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
which tlie water from the street escaped on to liis land, he
built a dwelling-house stopping the flow of the water entirely,
and it was held that he had a right so to do, although it
obliged the town to construct a drain to take off this water.
The town may make its roads so that the water therefrom
may flow on to the adjacent lands, and the land-owner can
only protect himself by erecting proper structures on his
land to guard against it.^
The same principle, under a somewhat different form, was
involved in the decision of Dickinson v. Worcester, where
the court held that " a conterminous proprietor may change
the situation or surface of his land, by raising or filling it
to a higher grade by the construction of dikes, the erection
of structures, or by the improvements which cause water
to accumulate from natural causes on the adjacent land,
and prevent its passing off from the surface." " Nor can a
party gain a right to the flow of surface water over his
neighbor's land, by collecting it in drains or culverts or
artificial channels, unless he maintains them for a length of
time sufficient to acquire a right of easement by adverse
user. He cannot by his own act merely, without the assent
or acquiescence of the adjoining owner, change their relative
rights or duties, and convert a flow of surface water into
a stream with all the legal incidents of a natural water-
course." The force of this latter remark resulted from the
fact that the plaintiff had maintained a ditch for some time,
into and through which the surface water and underdraining
from- his land had flowed, which the defendant had stopped
upon his own land below. Had this been a permanent
stream of water, the rights of the parties would have been
entirely different, and defendant would have been liable for
thus stoi)ping the flow of the water.^
The recent case of Earle v. De Hart, in New Jersey, in-
volves several of the questions discussed in the last few
1 FlagK V. Worcester, 1.3 Gray, GOl ; Wheeler v. Worcester, 10 Allen, 603.
2 Dickinson v. Worcester, 7 Allen, 19. See Bangor v. Lausil, 51 Maine, 526.
Sect. 1.] PROPERTY IN STREAMS AND WATERCOURSES. 273
pages, and presents a state of facts combining somewhat of
the law of surface water and that arising from springs, in
respect to constituting watercourses, and being governpd by
the general rules relating to them. The land in that case
lay in the city of Elizabeth. The plaintiff's land was so
situated that at certain seasons of the year the water col-
lected upon the surface in such quantities as to discharge
itself through a certain duct or channel, uniformly in one
place, across the defendant's land, into an existing gutter
which led to a river. The defendant stopped this duct or
channel on his land, and the plaintiff prayed to have such
obstruction abated. It was denied that such a channel as
this, in which water only occasionally discharged itself, was
a watercourse, within the eye of the law. But the Chan-
cellor says : " If there is a quantity of water collecting at
different seasons of the year on the complainant's land, to
such an extent as requires an outlet to some common reser-
voir, and if such is always the case in times of heavy rain and
melting of snow, and if, as far back as the memory of man
runs, that flow of water produced a natural channel through
the defendant's land, where such accumulated surplus water
had always been accustomed to run, the right of the com-
plainant to have the water discharged in the same chan-
nel, for the relief of her land, is so clear, that a court of
equity would not refuse to protect her right," (fee.
" But I *think the facts admitted in the answer [*212]
show that this is an ancient stream or watercourse,
and that it is a natural watercourse in the etymological use
of the term It may be natural, as where it is made
by the natural flow of the water, caused by the general
superficies of the surrounding land, from which the water is
collected into one channel, or it may be artificial, as in case
of a ditch or other artificial means used to divert the water
from its natural channel, or to carry it from lands from
which it will not flow in consequence of the natural forma-
tion of the surrounding land. It is an ancient watercourse,
27-1 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
if the channel through which it naturally runs has existed
from time immemorial. Whether it is entitled to be called
an ancient watercourse, and as such, legal rights can be ac-
quired and lost in it, does not depend upon the quantity of
water it discharges If the face of the country is such
as necessarily collects in one body so large a quantity of
water, after heavy rains, and the melting of large bodies of
snow, as to require an outlet to some common reservoir, and
if such water is regularly discharged through a well-defined
channel, which the force of the water has made for itself,
and which is the accustomed channel through which it flows,
and has flowed from time immemorial, such channel is an
ancient natural watercourse This water having run
in the same course for more than twenty years, and the com-
plainant and those under whom she holds having enjoyed it
as a right during that period, in its present channel, no one
has a right to dam up the channel, or to divert the course of
the water, to the injury of the complainant's land." ^
8. In considering, then, the nature and extent of property
in running water, and its use belonging to a land-owner
who, as such, derives a benefit from its enjoyment, it may
be repeated, that a stream is a part of the freehold.
[*213] Every *land-owner has a property in the stream
which flows through his land, while he has no
property in the water itself of which it is composed, save
for the gratification of his natural or ordinary wants.^ And
Lord Campbell, when speaking of a claim set up by the
inhabitants of a place, of a right, by custom, to take water
from a spring in the land of another, for domestic purposes,
says : " The water which they claim a right to take is not
the produce of the plaintiff's close, it is not his property, it
is not the subject of property It is not disputed
1 Earle v. Dc Hart, 1 Beasl. 280.
2 Stein V. Burden, 29 Ala. 127 ; s. c, 24 Ala. 130; Burden v. Stein, 27 Ala.
104 ; Gary ». Daniels, 5 Mete. 236 ; Crittenton v. Alger, 11 Mete. 281 ; Hart v.
Evans, 8 Penn. St. 22.
Sect. 1.] PROPERTY IN STREAMS AXD WATERCOURSES. 275
that this would be so, with respect to the water of a river, or
any open, running stream. We think it equally true as to
the water of a spring when it first issues from the ground.
.... While it remains in the field where it issues forth,
in the ahsence of any servitude or custom giving a right to
others, the owner of the field, and he only, lias a right to
appropriate it, for no one else can do so without committing
a trespass upon tho field. But when it has left his field, he
has no more power over it or interest in it than any other
stranger." ^
9. But still, water, though an element, is not " a movable,
wandering thing, and must of necessity continue common
by the law of nations," as represented by Blackstone.^ Nor
is " flowing water " so far " originally puhlici jitris,^^ that,
tliough, " so soon as it is appropriated by an individual, his
right is coextensive with the beneficial use to which he
appropriates it, subject to that right, all the rest of the
water remains puhlici juris " ; — as stated by Bailey, J., in
Williams v. Morland ; ^ if by that form of expression
is meant *that any one can appropriate it to his use [*214]
or convenience, except as he is the owner or occu-
pant of land in connection with which it is to be enjoyed.
There are, on the other hand, in many of the cases,
especially the earlier ones, forms of expression adopted in
respect to the rights of land-owners in the waters of streams
flowing through their premises, which are as much too
limited as those above quoted are too broad. The formula
ill which the law as to running water has, from an early
date, been stated, is Aqua curret et debet currere id currere
solehat. And the language of the yice-Chancellor in Wright
V. Howard * is : " Without the consent of the other proprie-
1 Race V. Ward, 30 Eng, L. & Eii- 187, 192 ; s. c, 4 Ellis & B. 702, 709 ; Tratt
V. Laiuson, 2 Allen, 275 ; 1 Fournel, Traite du Voisinage, 319.
- 2 Blackst. Comm. 14-18.
3 Williams v. Morlaml, 2 Barncw. & C. 910, 913. See also Liggins v. Inge,
7 Bing. 682, 692, per Tindal, C. J. Contra, Mason v. Hill, 5 Barnew. & Ad. 1.
* Wright V. Howard, 1 Sim. & S. 190, 203 ; 3 Kent, Comm. 439; and lau-
276 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
tors, wlio may be affected by his operations, no proprietor can
either diminish tlie quantity of water which would otherwise
descend to the proprietors below, or tlirow the water back
upon the proprietors above."
10. Now the rights of a riparian proprietor of land, over
which there is a flowing stream of water, are to use it for
any and all lawful purposes, while it is passing, in its natural
current, over his land.^ But the specific water that may be
thus passing is not his property except through its use ; nor
has he a right to detain it otherwise, since the rights of all
riparian proprietors upon any stream, in respect to the waters
thereof, are, in the eye of the law, equal and the same.
The obligation of any one of these to suffer it to flow to
the proprietor below is equally stringent and imperative as
his right was to have it flow to him from the proprietor
above.
These rights of riparian proprietors, though coming
[*215] under *the head of what are called "Natural Ease-
ments," are not, in fact, the result of any supposed
grant, evidenced by long acquiescence on the part of a supe-
rior proprietor, of the flow of the water from his land to the
land below. The right of enjoying this flow, without dis-
turbance or interruption by any other proprietor, is one jure
naturce, and is an incident of property in the land, not an
appurtenance to it, like the right he has to enjoy the soil
itself, in its natural state, unaffected by the tortious acts of a
neighboring land-owner.^ It is an inseparable incident to
guage almost as strong and unqualified is used by Denio, J., in Bellinger v. N.
y. Central R. R., 23 N. Y. 47, though the facts of the case carry an explanation
of the limitation with which it must have been intended to be used.
1 Shaw, C. J., thus defines a " riparian proprietor " : " By this designation I
understand an owner of land bounded generally upon a stream of water, and as
such having a qualified property in the soil to the thread of the stream, with the
privileges annexed thereto by law." Bardwell v. Ames, 22 Pick. 333, 355.
- Dickinson v. Grand Junction Canal Co., 7 Exch. 282, 299 ; Rawstron v. Tay-
lor, 11 Exch. 369, 382 ; Sury v. Pigot, Poph. 166 ; Wood v. Waud, 3 Exch. 748,
775 ; Embrcy v. Owen, 6 Exch. 353 ; Tyler v. Wilkinson, 4 Mason, 397 ; Evans
V. Merriweather, 3 Scamm. 492 ; Gardner v. Trustees of Village of Ncwburgh, 2
Sect. 1.] TEOPERTY IN STREAMS AND WATERCOURSES. 277
the ownership of land, made by an inflexible rule of law an
absolute and fixed right, and can only be lost by grant or
twenty years' adverse possession. ^ And the proprietor may
begin to exercise his rights as to the water whenever he
pleases. His right does not depend upon the exercise of it.'^
Shaw, C. J., in Johnson v. Jordan, thus states in a summary
form, the right of a land proprietor to a natural watercourse
flowing through the same : " Every person through whose
land a natural watercourse runs has a right, publici juris, to
the benefit of it, as it passes through his land, to all the use-
ful purposes to which it may be applied ; and no proprietor
of land on the same watercourse, either above or below, has
a right, unreasonably, to divert it from flowing into his
premises, or obstruct it in passing from them, or to corrupt
or destroy it. It is inseparably annexed to the soil, and
passes with it, not as an easement, nor as an appurtenance,
but as parcel. Use does not create it, and disuse
cannot destroy or suspend it. * Unity of possession [*216]
and title in such land with the lands above it or be-
low it does not extinguish it or suspend it."^
11. In determining, therefore, what these rights of the re-
spective riparian proprietors upon a stream are, two things
are to be taken into consideration ; — first, that, to derive a
value from this incident to his property, requires that the
Johns. Ch. 162; Campbell v. Smith, 3 Ilalst. 140; Tugh v. Wheeler, 2 Dcv. &
B. 50; Elliot v. Fitchhurg R. R. Co., 10 Cush. 191 ; Wright v. Howard, 1 Sim.
& S. 190, 203; Sampson v. Hoddinott, 1 C. B. n. s. 590; Parker v. Foote, 19
Wend. 309; Johnson v. Jordan, 2 Mete. 234; Canham v. Fisk, 2 Crompt. & J.
126; Rowbotham v. Wilson, 8 Ellis & B. 123, per BramweU, B. ; Williams v.
Morland, 2 Barnew. & C. 910 ; Mason v. Hill, 2 Barnew. & Ad. 1 ; Shreve v.
Vooriiees, 2 Green, Ch. 25 ; Tourtellot v. Phelps, 4 Gray, 370 ; Gary v. Daniels,
8 Mete. 466; Davis v. Fuller, 12 Vt. 178; Hendricks v. Johnson, 6 Port. 472;
Wadsworth v. Tiilotson, 15 Conn. 366; Plumleigh v. Dawson, 1 Giim. 544;
M'Coy V. Danlcy, 20 Penn. St. 85 ; Blanchard v. Baker, 8 Me. 253 ; Webb v.
Portland Mg. Co., 3 Sumn. 189 ; Stockoe v. Singers, 8 Ellis & B. 31.
1 Corning v. Troy, &c. Factory, 39 Barb. 311.
2 Crossley v. Lightowler, L. R. 3 Eq. 296.
3 Johnson v. Jordan, 2 Mete. 234, 239 ; Holsman v. Boiling Spring Co. 1
M'Carter, 335.
278 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
proprietor should apply the water to use in some form ; and,
second, that whatever is true of his own right is true of
every other proprietor above and below him. And from these
a rule has been deduced, which is as near uniform as the
nature of the case admits, and that is, that each proprietor
may make any reasonable use of the water upon his prem-
ises, provided he do not thereby essentially or materially
diminish the quantity or corrupt the quality of water in the
stream, so as to deprive other proprietors of a fair and rea-
sonable participation in the benefits thereof. The uses to
which water may be applied are so various, and the circum-
stances of the several cases where this is to be done are so
diverse, that no more definite rule than this can be laid
down. And whether, in any given case, a use shall have
been reasonable or otherwise, must, as will be seen hereafter,
ordinarily be referred, as a question of fact, to a jury.^
The case of Holsman v. Boiling Spring Co., may be cited
as illustrating the general propositions above stated. The
plaintiff had a valuable estate and pleasure grounds upon a
small stream, upon which the defendant had a bleachery
above the plaintiff's works. The chemicals used in the
bleachery and thrown into the stream, corrupted the water,
and rendered it unfit for the uses to which it had been ap-
plied by the plaintiff. In settling the respective rights of the
parties upon the plaintiff's application for an injunction to
the fouling of the water by the defendant, the court held
that every riparian proprietor had a right to the natural flow
of the water of a stream, as well in quality as quantity.
The right of a riparian proprietor to the use and enjoyment
of a stream of water in its natural- state, is as sacred as the
right of soil itself. If a mill has acquired a prescriptive
right to foul the water in one mode or to a certain extent, it
will not justify fouling it in another mode or to a greater ex-
tent. This docs not depend upon what a riparian proprietor
1 Davis V, Getclicll, 50 Maine, 604.
Sect. 1.] PROPERTY IN STREAMS AND WATERCOURSES. 279
may have expended upon his estate, but applies to riparian
estates universally.^
The following extended quotation from the opinion of
Story, J., in the case of Tyler v. Wilkinson, presents views
of the law upon this subject which have met the approba-
tion of American courts, and been liberally cited and com-
mended by the English courts, especially by the very able
judges of the present Court of Exchequer. " Prima facie,
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. 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 [*217]
itself, but the simple use of it while it passes along.
The consequence of this principle is, that no proprietor has
a right to use the water to the prejudice of another. It is
wholly immaterial whether tlie 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 from the per-
fect 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 common right, I do
not mean to be understood as holding the doctrine that there
can be no diminution whatsoever, and no obstruction or im-
pediment whatever, by the 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, of that
which is common to all, a reasonable use. The true test of
1 Ilolsman v. Boiling Spring Co., 1 M'Carter, 335 ; Crosslcy r. Lightowler,
L. E. 3 Eq. 297.
280 THE LAW OF EASEMENTS AND SERVITUDES. [Cif. III.
the principle and extent of use is, whether it is to the injury
of the other proprietors or not The maxim is ap-
plied, Sic utere tuo ut alienum non ladasy^
And Shaw, C. J., in Bardwell v. Ames, in speaking of the
rights of a riparian owner upon one side of a river,
[*218] like the *Connecticut, says : " Such owner, like
every other owner of land over which there is a
stream of water, has a right to appropriate to himself, and
apply to any useful and beneficial purpose, the force to be
derived from the natural flow of the water as it passes over
his land, subject only to this limitation, that he does not
thereby injuriously affect the common and equal rights of
other proprietors of lands above or below his own on tlie
stream." ^
This is -further illustrated by Parke, B., in the case of
Embrey v. Owen, above cited, where he says : " The right to
have the stream flow in its natural state, without diminu-
tion or alteration, is an incident to the property in the land
through which it passes; but flowing water is publici juris,
not in the sense of bonum vacans, to which the first occu-
pant may acquire an exclusive right, but that it is public
and common in this sense only, that all may reasonably use
it who have a right of access to it ; that none can have any
property in the water itself, except in the particular portion
which he may choose to abstract from the stream and take
into his possession, and that during the time of his posses-
sion only. But each proprietor of the adjacent land has the
1 Tyler v. Wilkinson, 4 Mason, 397 ; 3 Kent, Comm. 439 ; Gardner v. Trus-
tees of Village of Newburgh, 2 Johns. Ch. 162; Soc. for establishing Manufac-
tures V. Morris Canal & Banking Co., Saxt. Ch. 157, 188; Merritt v. Parker,
Coxe, 460 ; Shreve v. Voorhees, 2 Green, Ch. 25 ; Cary v. Daniels, 8 Mete. 466 ;
Haas V. Choussard, 17 Texas, 588; Hendrick v. Cook, 4 Ga. 241, 255; Diiling
V. Murray, 6 Ind. 324 ; Embrey v. Owen, 6 Exch. 333 ; Dickinson v. Grand Junc-
tion Canal Co., 7 Exch. 300 ; W^ood v. Waud, 3 Exch. 748, 775 ; Evans v. Mer-
riweather, 3 Scamm. 492 ; Tourtellot v. Phelps, 4 Gray, 370 ; Gould v. Boston
Duck Co., 13 Gray, 442; Twiss i'. Baldwin, 9 Conn. 291 ; Piatt v. Johnson, 15
Johns. 213; Ilowell t>. M-Coy, 3 Rawlc, 256; Blanchard y. Baker, 8 Me. 253 ;
Davis V. Getchell, 50 Maine, 604 ; H.ayes v. Waldron, 44 N. II. 584.
2 Bardwell v. Ames, 22 Pick. 354; Davis v. Getchell, 50 Maine, 604.
Sect. 1.] PROPERTY IN STREAMS AND WATERCOURSES. 281
right to the usufruct of the stream which flows through
it."i
Shaw, C. J. has also defined the rights of tlic several
riparian proprietors upon a stream, in respect to the use of
the water tliereof, in Cummings v. Barrett, in these words :
" The upper proprietor has a right to make any use of the
stream, which is beneficial to his estate and himself, which
is reasonable, and does not either wholly take away the right
of the lower proprietor, or does not practically, and in a per-
ceptible and substantial degree, diminish and impair an equal
and common riglit of the lower proprietor." And
whether it has this effect, he says, is often a *ques- [*219]
tion of fact depending upon the peculiar circumstan-
ces of the case.2
The owner of land may apply the water that flows in a
stream over it to domestic, agricultural, or manufacturing
purposes, provided he uses it in a reasonable manner, and so
as to work no material, actual injury to others, or to the
infringement of the rights of others. And this extends to
the depositing in such stream waste matter and foreign sub-
stances which are the results of jDrocesses of manufactures,
provided it be a reasonable use of the same, which is a
question of fact to be determined by a jury. And what is
reasonable, must depend upon a variety of conditions, such
as the size and character of the stream and the uses to which
it can be applied.^
12. It follows, as a corollary from the doctrine of the above
cases, that, in the language of Parke, B., in Embrey v. Owen,
cited above, " it is only for an unreasonable and unauthorized
1 Mason v. Hill, 5 Barnew. & Ad. 1 ; Piigh v. Wheeler, 2 Dcv. & B. 50;
Howell V. M'Coy, 3 Rawle, 256; Thomas v. Brackney, 17 Barb. 654; Wright v.
Howard, 1 Sim. & S. 190, 203.
2 Cummings v. Barrett, 10 Cush. 186 ; Elliot v. Fitchhurg R. R. Co., 10 Cusb.
191 ; Thomas v. Brackney, 17 Barb. 654; Parker v. Hotdikiss, 25 Conn. 321 ;
Gould V. Boston Duck Co., 13 Gray, 442 ; Hendrick v. Cook, 4 Ga. 241 ; Selden
V. Del. & Hud. Canal, 29 N. Y. 642.
8 Hayes v. Waldron, 44 N. H. 584 ; Housee v. Hammond, 39 Barb. 95 ; do post,
*282.'
282 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
use of this common benefit that an action will lie," though,
it may be added, for such a iisc an action will \[% though no
actual damage may thereby have accrued to the proprietor
whose riglit has been invaded. ^
13. Though the courts, both of England and this country,
seem to be so well agreed in the general principles applicable
to the rights of water, the uses to which it may be put are
so various, that it is often difficult to apply any general rule
to the practical operations of the several riparian proprietors.
One may wish to use the stream for mill purposes, another
for the irrigation of his land, and a third for household
purposes, or supplying the necessary drink for his cattle.
The use to which one may wish to apply it will leave the
waters of the stream pure and healthy, while the business of
another, if suffered to be carried on, renders it foul or dele-
terious to health. It is this diversity of uses and interests
which, in its practical workings, has led to many of the mul-
tiplied questions which, especially of late, have engaged the
attention of the courts. Ever since the 32 Edw. III., the
uniform rule of law has been, that an action will lie for an
actual diversion of the water of a stream.^ Yet the cases
are numerous where a diversion of water, under certain cir-
cumstances, has been held lawful, one of which is given
here, for purposes of illustration.
[*220] *In the case of Wadsworth v. Tillotson, which was
an action for an alleged diversion of water which
ought to flow to the plaintiff's land, there was a spring in
the defendant's land wdiicli naturally overflowed and dis-
charged its waters by a defined channel, running through the
plaintif^''s land adjoining that of the defendant. Tlie defend-
ant laid an aqueduct from this spring to his house for supply-
1 Emhrcy v. Owen, 6 Exch. 353, 369 ; Johns v. Stevens, 3 Vt. 308 ; Thomas
V. Brackney, 17 Barb. 654; Ripka v. Sergeant, 7 Watts & S. 9. Compare the
above witli the unguarded hinguage of tlie court in Bellinger v. N. Y. Central R.
R., 23 N. Y. 47.
2 Year B., Book of Assize, 32 Edw. III. pi. 2; 2 Rolle, Abr. 140; Con^ Dig.
Action upon llic Case for a Nuisance, A.
Sect. 1.] PROrERTY IN STREAMS AKD WATERCOURSES. 283
ing it with water, and for watering his cattle ; and in order to
keep it pure and prevent its freezing, he suffered portions of it,
more than lie wanted for the above uses, to escape, and cither
applied it in irrigating his lands, or suffered it to run to waste,
so that the plaintiff lost the benefit of a part of the natural
flow of the stream through his land. It was held that the de-
fendant had a right to divert what was reasonably necessary
for supplying his family use, and that he might use the water
in a reasonable manner, and so as not to destroy or render
useless, or materially diminish or affect the application of the
same by the proprietors upon the stream below. And it was
further held, that the rule that water ought to flow as it is
wont, without diminution or alteration, and cannot be di-
verted in whole or in part, out must be returned, after it is
used, to its ordinary channel, is not to be understood liter-
ally, so as to prevent a small, unessential, or insensible dimi-
nution, variation, or loss of the water incident to the bene-
ficial use of it. And the question was submitted to the jury,
whether the mode in which the diversion was made in this
case was or was not a reasonable one, with a direction that,
if it was, the defendant was not liable therefor, though the
plaintiff thereby suffered some loss.^
But it should be remembered, that a riparian proprietor
may, by long exercise of the right, acquire a right to stop
the flow of water from his premises to those below him, and
wholly deprive the owner thereof of the same.^
*But nothing short of twenty years' continued di- [*221]
version authorizes a presumption of grant or license
to create it.'^
14. Though the interest in the water of a stream has thus
far been treated of as a subject of separate and individual
property, there is often a joint interest in it which involves
1 "Wiidsworth v. Tillotson, 15 Conn. 369. See Perkins ?:. Dow, 1 Root, 535;
Chatfield v. Wilson, 31 Vt. 358; Gillett v. Jolinson, 30 Conn. 183.
2 Ennor v. Banvell, 2 Giff. 410, 420.
3 Haight V. Price, 21 N. Y. 241.
284 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
rules as to the respective rights of two or more joint owners,
of a somewhat peculiar character. Thus, if one proprietor
owns land upon one side of a stream, in which the tide does
not ebb and (low, and another owns upon tlie opposite side,
the dividing line of their lands is the thread or centre line of
the stream between the banks, irrespective of the circum-
stance that a larger or smaller quantity or current of water
flows upon one side or the other of that line.^
But each proprietor does not thereby become the owner of
any distinct portion of the waters flowing in the stream, re-
garding them, in their capacity for use, as heretofore ex-
plained. Viewed in that light, the property in tlie stream is
one and indivisible, and each riparian proprietor is bound to
use it accordingly as an entire stream in its natural channel ;
or, in other words, he cannot sever the stream, for a sever-
ance of it would destroy the rights of both. One proprietor
cannot, however, so appropriate or use the stream as materi-
ally to injure others jointly interested in it. Each having a
right to only one half of the water, he may use the same, but
must use it as it is accustomed to flow down the channel.^
If the owner of one side of a stream to the thread thereof,
divert the water from the stream, the owner of the other part
of it may restrain him from so doing, as he has a right to the
natural flow of the stream over his part of the bed of it.^
Accordingly, where a riparian owner on one side of a
stream erected a dam wholly within his own land, and by
means thereof created and used a water-power on his own
land for more than twenty years, it was held that he
[*222] was *only exercising his own right, and not adverse-
ly to the rights of the owner of the other side ; and
that it did not derogate from his right to enjoy the use of his
1 Pratt V. Lixmson, 2 Allen, 275, 284; Trustees, &c. v. Dickiuson, 9 Cusli. 544,
552; Scliurmeicr v. St. P. & Par. R. R., 10 Min. 102.
2 Canal Trustees v. Haven, 11 111. 554; Vandenburgh v. Van Ber<,'en, 13
Johns. 212; Pluniluigli v. Dawson, 1 Gilm. 544, 551 ; Ersk. Inst., fol. ed. 358;
Pratt V. Lanison, 2 Allen, 275, 287.
=* Corning v. Troy Iron, &c. Co., 22 How. Prac. Cas. 219 ; s. c, 39 Barb. 311.
Sect. 1.] PROPERTY IN STREAMS AND WATERCOURSES. 285
undivided share of the stream whenever he should see fit to
apply the same, unless the first occupant shall have done
that which positively excluded the other owner from enjoy-
ing the sarae.^
15. Attempts have, at times, been made to lay down some-
thing like arbitrary rules by which to determine, in cases
where, from drought or other cause, there fails to be water
enough in a stream to supply the wants of several successive
owners upon its banks, to which of them a prior right to the
water is to be accorded. Thus, for instance, suppose the
case of a stream the water of which is applied by one to do-
mestic uses, by another to irrigate his land, and by a third
to operate a mill ; may either claim a precedence in right to
the same, or is the water to be equally shared by them all,
or is it to depend upon the order in which their estates stand
upon the stream ?
The question arose in Evans v. Merriweather, where the
court of Illinois undertook to prescribe rules applicable to
cases like the one supposed. The stream, in that case, was
a small and natural one. The plaintiff and defendant both
had mills upon its banks, which were operated by steam, for
generating which the waters of the stream, in connection with
those of certain large wells, were used, and, ordinarily, were
sufficient. But a drought having prevented such supply, the
defendant, who owned the upper mill upon the stream, jDlaced
a dam in it, by which the water flowing therein was turned
into his well, and the plaintiff's mill was wholly deprived of
the same. As both were mill-owners, the determination of
the question raised between them would not seem to call for
a solution of the question above proposed. But the court
proceed to discuss it, under the inquiry whether the
entire consumption of a stream by *an upper proprie- [*223]
tor can, in any case, be a reasonable one ?
" To answer this question satisfactorily," say the court,
1 Pratt V. Lamson, 2 Allen, 275, 289 ; Corning v. Troy, &c. Co., 39 Barb. 311.
286 THE LAW OF EASEMENTS AND SERVITUDES. [Cu. III.
" it is proper to consider the wants of man in regard to the
element of water. These wants are either natural or artifi-
cial. Natural are such as are absolutely necessary to be
supplied, in order to his existence; artificial, such only as,
by supplying them, his comfort and prosperity are increased.
To quench thirst, and for household purposes, it is absolutely
indispensable. In civilized life, water for cattle is also neces-
sary. These wants must be supplied, or both man and beast
will perish." The court then go on to state, that, for manu-
facturing purposes, or those of irrigation, the use of water is
not essential to man's existence in this climate, Avhatever it
might be in hot and arid climates, and add : " From these
premises would result this conclusion, that an individual,
owning a spring upon his own land, from which water flows
in a current through his neighbor's land, would have a right
to use the whole of it, if necessary, to satisfy his natural
wants. He may consume all the water for his domestic pur-
poses, including water for his stock. If he desires to use it
for irrigation or manufactures, and there be a lower propri-
etor to whom its use is essential to supply his natural wants,
or for his stock, he must use the water so as to leave enough
for such lower proprietor. Where the stream is small, and
does not supply water more than sufficient to answer the
natural wants of the different proprietors living on it, none
of the proprietors can use the water for either irrigation or
manufactures Each proprietor, in his turn, may, if
necessary, consume all the water for these purposes," that
is, for the supply of these natural wants. The case goes on
to affirm, that if, beyond the supply of these, any surplus is
left, all have a right to participate in its benefits, and no rule
can be laid do^vn as to how much each may use, without in-
fringing the rights of others. The question in such
[*224] cases must be referred to a jury, to say whether *a
party has, under all the circumstances, used more
than his just proportion of the water. And, tried by the
tests which had tluis been premised, the court had no dif-
Sect. 1.] PROPERTY IN STREAMS AND WATERCOURSES. 287
ficulty in holding the diversion complained of to be unwar-
ranted.^
The opinion thus advanced by the court of Illinois, and
which seems to be favored more or less directly by the other
cases cited, may be considered as deriving weight freni what
will appear in the following pages ; namely, that, while nu-
merous questions have arisen as to the liability of land-own-
ers for the manner in which they have applied the water of
running streams for irrigation and mill purposes, no case is
recollected where one has been held to have violated the
rights of any other proprietor by any use made by him upon
his own premises for purely domestic purposes, or watering
of his cattle. And further, that the rule is a universal one,
that no man has a right so to use or apply water flowing
through his land as to foul the same or render it corrupt or un-
healthy, and unfit to be used by the land-owner on the stream
below him, for domestic purposes, or watering his cattle.
The following are some of the cases illustrating the appli-
cation of the foregoing doctrines. The plaintiff owned a
paper mill, which derived its water, among other sources,
from what fell upon a hillside, and found its way into
a cavern through which it flowed in a current, and foun(i
its way into the stream on which the plaintiff's mill
was situate, and so to the plaintiff's mill. The defend-
ant began works upon the top of the hill, using water
which was thereby fouled and corrupted, and was suffered to
find its way through fissures into the cavern where it mingled
with the water flowing through it, and thereby fouled the
water that came to the plaintiff's mill, and rendered it unfit
for his use. It was held that he was liable in an action for
1 Evans v. Merriweather, 3 Scamm. 492. See Ingraham v. Hutchinson, 2
Conn. 584; Arnold v. Foot, 12 Wend. 340; Pugh v. Wheeler, 2 Dcv. & B. 50,
54 ; Omclvanv v. Jaggcrs, 2 Hill, So. C. 634 ; Blanchard v. Baker, 8 Me. 253;
Elliot V. Fitehburg R. R. Co., 10 Cush. 191 ; Stein v. Burden, 29 Ala. 127 ; s. c,
24 Ala. 130; Smith v. Adams, 6 Paige, 435; Brown v. Best, 1 Wils. 174; Johns
V. Stevens, 3 Vt. 308, 316; Chatfield v. Wilson, 31 Vt. 358; Pardessus, Traite
des Servitudes, § 114 ; 1 Fournel, Traite du Voi.sinng.', 347.
288 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
thus fouling the water, although it passed a considerable
part of its way through the earth and underground.^
16. It may be stated, though it might seem to result
necessarily from what has already been said, that the owner
of land through which a stream of water flows has, as inci-
dent to such ownership, a right to have the water flow from
his land, without obstruction, upon that of the next adjoin-
ing proprietor below, and for creating any such obstruction
he may have his action, as for the diversion which prevented
its flowing to and upon his land.^
The owner of a swamp or wet land may drain the same
into a stream in his own land, without being liable therefor,
though it increase the quantity of water in the stream to the
injury of the owner below. But he may not thus throw the
water upon land below him by an artificial trench.^
If the public, in making or repairing a highway, stop the
water that naturally flows into it, so as to throw it back on
to the adjoining owner's land, the surveyor who does it,
would be held liable in damages.* And such would be the
law as to railroads. But if it is necessary, in making a rail-
road, to stop the flow of water, and thereby to flood the ad-
jacent land, it would be considered that a right to do this
was incident to and embraced in the easement acquired by
the location.^
In a case before the Lords of the Privy Council, the court
use this language: " Every riparian, proprietor has a right
to what may be called the ordinarij use of water flowing past
his land, for instance, to the reasonable use of the water for
his domestic purposes and for his cattle, and this without re-
1 Hodgkinson v. Ennor, 4 B. & Smith, 229 ; post, p. *364.
'^ Johns V. Stevens, 3 Vt. 308, 316; Tugh v. Wheeler, 2 Dev. & B. 50, 53;
Overton v. Sawyer, 1 Jones, No. C. 308; Tillotson v. Smith, 32 N. H. 90; Mar-
tin V. Jett, 12 La. 501 ; Martin v. Kiddle, 27 Penn. St. 415, note; Kauffman v.
Griescmcr, 26 Penn. St. 407, 413.
2 Miller v. Laubach, 47 Penn. 154.
* Howe V. Addison, 34 N. II. 313 ; Hayncs v. Burlington, 38 Verm. 361.
6 Joimson I'. Atlantic, &c. R. R., 35 N. H. 572 ; Proprietors, &c. v. Nashua,
&c. K. R., 10 Cubh. 388.
Sect. 1.] PROPERTY IN STREAMS AND WATERCOURSES. 289
gard to the effect which such use may have, in case of defi-
ciency, upon proprietors lower down the stream. He has a
right to use it for any purpose, or what may be deemed the
extraordinary use of it, provided that he does not, thereby,
interfere with the rights of other proprietors, either above or
below him. Subject to this condition, he may dam up the
stream for the purpose of a mill, or divert the water for the
purpose of irrigation. But he has no right to interrupt the
regular flow of the stream, if he thereby interferes with the
lawful use of the water by other proprietors, and inflicts on
them a sensible injury." ^
The Court of Alabama cover the point that has some-
times been made whether, if there is not water enough in
the stream to supply the wants of both upper and lower
owner, the upper one can use it all, or is bound to share it
with the lower owner. " Each riparian proprietor has the
right to use the water which flows from or through his lands
for all ordinary purposes and for the gratification of natural
wants, even though in such use he consumes the entire
stream ; this right extends to the iise of the water ad lavan-
dum et potandum, both by himself and all living things in
his legitimate employment." " Such proprietor has also the
right to the extraordinary or artificial use of the stream of
water composing it, provided that, by such use, the water is
not forced back upon the lauds of the proprietor above, is not
unreasonably and injuriously precipitated on the lands of the
proprietor below, and after its use is restored without material
diminution, and before it leaves the land of the person divert-
ing it to its accustomed channel."^
So, if the effect of erecting a bridge for a highway across a
stream, in a reasonable and proper manner, be to damage a
mill upon the same stream, the remedy of the mill-owner is
not by an action against the town for damages, but by resort
to the same mode for relief which is provided for the recov-
1 Miner i'. Gilinore, 12 Moore, P. C. 156 ; 1 Lepage Desgodets, 16.
- Stein V. Burden, 29 Ala. 132.
19
290 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
ery of damages in cases where private property is taken for
public uses, and the same rule applies to a railroad if, in
erecting such bridge, it acts within the scope of the powers
given it by its charter.^
But if a town, by failing to provide a proper culvert, or
keep it in repair to carry off the water of a watercourse,
thereby flows back water on to land above, it would be lia-
ble in an action for damages.^
[*225] *And this principle, it may be remarked, though
more fully illustrated hereafter, applies to surface
water as well as to that flowing in a proper watercourse.'^
17. But if, from natural causes, the channel by which the
water flows from one's land becomes clogged or obstructed,
it is incumbent upon him to cause the same to be cleared,
if he would avail himself of it to relieve his land.* He has,
however, no right to deepen the bed by removing natural
obstructions in the land of another, nor obstructions long
existing therein, though originally artificial. And if the
owner of the land remove these, he will not be liable to the
owner above, though he replace them by artificial obstruc-
tions, provided the latter do not set back the stream any
higher than the natural obstructions had previously done.^
18. It may be added, that it is the natural right of a
riparian proprietor, not only that the water of the stream
should come to him uncorrupted, but unchanged in its
natural temperature by the proprietors above, through or
by whose lands it shall have flowed.^ And this applies, also,
1 Sprague v. Worcester, 13 Grcay, 193 ; Perry v. Worcester, 6 Gray, 546 ; Mel-
len V. Western R. R., 4 Gray, 302 ; Hazen v. Essex Co., 12 Gush. 475 ; Wheeler
V. Worcester, 10 Allen, 603.
^ Haynes v. Burlington, 38 Verm. 362.
3 Martin v. Kiddle, 26 Penn. St. 407, note ; Laumier v. Francis, 23 Mo. 181 ;
Bellows V. Sackett, 15 Barb. 96; ante, p. *211.
* Brisbane v. O'Neall, 3 Strobh. 348; Prescott v. Williams, 5 Mete. 429 ; Pres-
cott y. White, 21 Pick. 341.
5 Brown v. Bush, 45 Penn. 64- 66.
6 2 Kollc, Abr. 141 ; Gary v. Daniels, 8 Mete. 466, 476 ; Alfred's case, 9 Rep.
59 ; Mason v. Iliil, 5 Barnew. & Ad. 1 ; Magor v. Chadwick, 11 Adolpii. & E.
571 ; Wood (;. Waud, 3 ICxch. 748, 777 ; IIowclI v. M'Goy, 3 Kawle, 256 ; Davis
V. Getchell, 50 Maine, G04.
Sect. 1.] PROPERTY IN STREAMS AND WATERCOURSES. 291
to cases where the riparian proprietor owns only upon one
side of the stream. Thus where the OAvner of mills upon a
stream, who was accustomed to foul the water by dye-stuffs,
&c., thrown into it, sold the land upon one side of the stream
below his mills without any reserve, it was held that the pur-
chaser, as riparian proprietor, had a right to the flow of the
water over his half of the bed of the stream, pure and uncor-
rupted, and that the vendor had no longer any right to foul
it.i
19. Though, with the foregoing idea of property in the
use of water in connection with the ownership of real estate,
it may seem hardly consistent to treat that as an easement
which is naturally incident to the rightful enjoyment of
one's own land, yet it is common to speak of the right of
one riparian owner upon a stream to have the water thereof
flow from the land of an owner above in an uncorrupted
state upon and along his own land, and thence to discharge
it into and upon the land of the owner below in an unob-
structed manner, as a natural easement and servitude. And
the land of such owner is regarded in such case, in respect to
the flow of such water, both a dominant and servient estate,
in respect to those above and below it upon the same stream.
It is, at least, so much like an easement or servitude, that it
may not be considered as doing any violence to the
terms, although a natural *incident to the property [*226]
in such lands, and not the result of grant, either di-
rect or by implication, under the name oi prescription?
Thus the right of having water flow unobstructed from
one's land is considered by the court " as a claim of right
to a natural easement," though sometimes it is called " a
secondary easement " in another's land.^
1 Crossley v. Lightowler, L. R. 3 Eq. 297.
- See Johnson v. Jordan, 2 Mete. 234; Soule v. Russell, 13 Mete. 436 ; ante,
chap. 1, sect. 1, pi. 19, 20.
3 Gary v. Daniels, 5 Mete. 236 ; Prescott v. Williams, 5 Mete. 429 ; Crittcnton
V. Alger, 11 Mete. 281 ; Ashley v. Ashley, 6 Ciish. 70; ante, chap. 1, sect. 2,
pi. 11.
292 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
The law is, where two parcels of land lie adjoining each
other, belonging to different persons, and one parcel lies
lower than the other, that the lower one owes a servitude to
the upper, to receive the water that naturally runs from it,
provided the industry of man has not been used to create
the servitude}
And the court, in Kauffman v. Griesemer, use the following
language, in speaking of this as a natural easement or servi-
tude : " Because water is descendible by nature, the owner
of a dominant or superior heritage has an easement in the
servient or inferior tenement, for the discharge of all waters
which by nature rise in or flow or fall upon the superior.
.... This obligation applies only to waters which flow
naturally without the art of man. Those which come from
springs, or from rain falling directly on the heritage, or even
by the natural dispositions of the place, are the only ones to
which this expression of the law can be applied
Hence the owner of a mill has an easement in the land be-
low for the free passage of the water from the mill
[*227] in the natural channel of the stream," <fec. * " This
easement," referring to that which the superior has
in the inferior as the servient tenement, " is called a servi-
tude in the Roman law." ^
20. From the familiar fact above referred to, that water is
descendible by nature, there are few uses which can be made
of it by any one upon his own premises that do not more or
less sensibly affect either the quantity or quality of the water
received from an upper tenement and discharged upon a
lower one, or the uniformity or rate of impetus with which
it is allowed to flow through one's land or be discharged
upon that of another. It results, almost as a matter of
1 Martin v. Jett, 12 La. 501 ; Orleans Navijration Co. v. Mayor of New Or-
leans, 2 Martin, 214, 23."$ ; Delahoussayc v. Judiee, 13 La. Ann. .587 ; ante, p. 15 ;
1 Fonrncl, Traitc du Voisinage, 337, 339 ; Code Nap., Art. 640 ; 5 Duranton,
Cours de Droit Franoais, liv. 2, tit. 4, § 1, pp. 152 - 166 ; Pardessus, Traitc des
Servitudes, ^^ 82, 83, pp. 113-118, ed. 1829 ; Miller v. Laubach, 47 Penn. 154.
2 Kauffman v. Griesemer, 26 Penn. St. 407, 413. See ante, p. *211.
Sect. 1.] PROPERTY IN STREAMS AND WATERCOURSES. 293
course, that easements, in the proper sense of the term, in
numerous forms, may be acquired in reference to such use,
just to the extent to which sucli use may vary the state and
condition in which the water would have been, if it had been
suffered to flow in a strictly natural manner.
It becomes necessary, therefore, in pursuing the subject,
to point out how far the various modes in which flowing
water is ordinarily applied to use are in conformity with the
natural rights which are incident to the ownership of the
land, and how far such use, though not in conformity with
such natural right, may have become lawful by grant or
prescription as a servitude or easement. And it may be
stated, as a general proposition, that, from the earliest history
of the common law, it has been deemed an actionable tort
for one man to obstruct the natural flow of water in a stream
running through another's land, if thereby another is de-
prived of the use of it, or his land is submerged by such
obstruction, or his mill is hindered in its operation.^
And the owner of the land through which it flows, has no
right to fill up a watercourse, or divert the water from the
land below, nor to flow it back upon the land above.^
21. In considering the law as to the uses to which water
may be applied, it becomes necessary to treat of these under
difierent heads. And for that purpose, it is proposed, first,
to consider the subject of irrigation, next, the appli-
cation of *water to the operation of mills, as gov- [*228]
erned by the rules of the common law, and then to
inquire into the character and extent of the rights which
may be acquired in respect to water flowing in artificial
channels, together with some of the rights of water for the
operation of mills, created by statute.
1 2 Rolle, Abr. 140; Com. Dig., Action on the Case for a Nuisance, A,
2 Bangor V. Lansil, 31 Maine, 526.
294 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
SECTION II.
OF RIGHTS OF IRRIGATION.
1. How far water may be diverted for the purposes of irrigation.
2. Every di\'ers\on jjrima facie against right, when lawful.
3. Natural right of diversion and that acquired as an easement.
4. What a legal use of water, though injuriously affecting others.
5. American cases on the rights of irrigation.
6. English cases on the same subject.
7. Right to irrigate lost by grant or prescription.
8. Case of Miller v. Miller. Limits of right to divert water.
9. Case of Arnold v. Foot. Same subject.
10. Case of Elliot v. Fitchburg R. R. Co. Same subject.
11. One may not wholly stop a stream for irrigation.
12. How far and for what one may divert water from a stream.
13. What constitutes an easement in the use of water.
14. No one may divert water to affect a mill, except as an easement.
15. What are instances of easements in running water.
1. By irrigation, as here used, is meant, unless otherwise
expressed, the application of the waters of a running stream
by a riparian proprietor in the cultivation of his land by
artificial means, and not the overflowing of its natural banks
by periodical or extraordinary freshets or swellings of the
stream beyond the customary quantity flowing therein.
This, of course, implies a greater or less degree of diversion
of water from the stream, and the difficulty to which it gives
rise, of determining the respective rights of successive
riparian proprietors upon a stream, is, that while a right
to divert water for such purposes, to some extent, and under
certain circumstances, is incident to the ownership of the
soil, if it is carried to a greater extent, or exercised
[*229] under *different circumstances, it becomes a wrong,
for which the one causing it is responsible in dam-
ages, unless it can be justified by evidence of grant or assent
on the part of him whose property is thereby injuriously
affected.
The point to be determined in these cases is, where the
right ends, and the wrong begins, in the scale of admeasure-
Sect. 2.] RIGHTS OF IRRIGATION. 295
mcnt of such diversion ; for if a riparian proprietor tran-
scends the right, he is subject to an action by otlicr riparian
proprietors whose rights are thereby affected, although no
actual damage can be shown to have been thereby occasioned.
Tlie reason of this rule, which is now established by a multi-
tude of cases, is, that for every wrong the law professes to
provide a remedy, and if a party whose right in respect to
his land has been invaded were obliged to show an actual
damage sustained before he could vindicate his right by an
action at law, the repetition of the act might often be con-
tinued till a prescriptive right were gained by such adverse
user in favor of one whose original act was confessedly a
wrong.
Bearing in mind that it is not for every diversion of water
that an action will lie, but only for such as violates the right
of some other person, as explained in Elliot v. Fitchburg R.
R. Co., cited below, the following cases have been selected
from a much larger number, to show that such action may
be sustained, though no actual damages can be shown to
have been occasioned by such diversion, since the law will
imply a damage in such cases, ancf establish the right of
the party assumed to be injured by a solemn judgment of
court.i
*2. Therefore, to limit a land-owner to the mere [*230]
benefit of having a stream flow through his land, with-
out any right to divert the same or any part of it, would be
1 Hastings v. Livermore, 7 Gray, 194; Elliot i;. Fitchburg R. K. Co., 10
Cush. 191 ; Bolivar Mg. Co. v. Neponset Mg. Co., 16 Pick. 241 ; Grant v. Ly-
man, 4 Mete. 470 ; Atkins v. Bordman, 2 Mete. 457 ; Newhall v. Ireson, 8
Cush. 595 ; Dane v. Valentine, 5 Mete. 8 ; Butman v. Hussey, 12 Me. 407 ;
Whipple V. Cumberland Mg. Co., 2 Story, 661 ; Webb v. Portland Mg. Co., 3
Sumn. 189 ; Parker v. Foote, 19 Wend. 309, 313 ; Hendrick v. Cook, 4 Ga. 241,
260; Plumleigh t). Dawson, 1 Gilra. 544, 552; Stein v. Burden, 24 Ala. 130,
148; Welton i;. Martin, 7 Mo. 307 ; Hulme v. Shreve, 3 Green, Ch. 116; Par-
ker V. Griswold, 17 Conn. 288; Chatfield v. Wilson, 27 Vt. 670; Sampson v.
Hoddinott, 1 C. B. n. s. 590 ; Wood v. Waud, 3 Exch. 748, 772 ; post, chap. 6,
sect. 2, pi. 1. Roundtree v. Brantley, 34 Ala. 553; Munroe v. Stickney, 48
Maine, 462 ; Graver v. Shell, 42 Peun. 67 ; Delaware Canal v. Torrey, 33 Penn.
143.
296 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
defeating, in a great measure, the purposes for which Provi-
dence had supplied these sources of comfort and convenience
to man, and the means of fertilizing the soil, and giving a
profitable employment for industry and art ; it is accordingly
held, that if, in any question of diversion the jury should
find, it was only of such water as the complaining party
could not have used for any beneficial purpose, or that it
was made in a reasonable manner, and for a proper purpose,
an action for the same would not lie. But as every diversion
is, prima facie, a violation of the right of the riparian pro-
prietor below to have the benefit of the stream, ut currere
solebat, an action will lie therefor, unless the party causing
it can ground his defence upon such a use of it as is above
supposed.^
3. The right to divert water, in applying it to use above
spoken of, will of course be understood as one that is
naturally incident to property in the land, and if any one
should lose this, or should acquire other and more extensive
rights in this respect, it could only be by having become
subject to a servitude, or by having acquired an easement
under some grant, actifal or implied.
4. It may be further remarked, that, in determin-
[*231] ing what *is a reasonable use of water by diversion,
reference is to be had to the injury sustained thereby
by one as well as the benefit obtained by the other. Thus it
might be of great advantage to the owner of a dry and
porous parcel of land upon a stream, to spread the waters
thereof over its surface at frequent intervals. But if, in so
doing, the water which operated an existing mill below
1 Elliot V. Fitchbnrg E. K. Co., 10 Cush. 191, 195; Howell v. M'Coy, 3
Rawle, 256, 260 ; Shrove v. Voorhees, 2 Green, Ch. 25, 34 ; Williams v. Mor-
land, 2 Barnew. & C. 910, 916 ; Thompson v. Crocker, 9 Pick. 59 ; Cooper v.
Hall, 5 Ohio, 320; Parker v. Griswold, 17 Conn. 288, 299; Embrey v. Owen,
6 Exch. 3.53; Sampson v. Iloddinott, 1 C. B. n. s. 590; Webb v. Portland Mg.
Co., 3 Sumn. 189, 198 ; Wright v. Howard, 1 Sim. & S. 190, 203 ; Tyler v. Wil-
kinson, 4 Mason, 397, 400 ; Wadsworth v. Tillotson, 15 Conn. 366,373; Piigh
V. Wliec'ler, 5 Dev. & B. 50, 59; Van Hoescn v. Coventry, 10 Barb. 518; 3
Kent, Comm. 438 ; Davis v. Winslow, 51 Maine, 290.
Sect. 2.] RIGHTS OF IRRIGATION. 297
should be absorbed and wasted, it would, obviously, be an
unreasonable use of what ought to be, within proper limits,
for the benefit of both.
And in respect to the general principles applicable to cases
of diversion of water, there is no difference between the rights
of the riparian proprietor, whose land extends only to the
centre of the stream, and of him who owns upon both sides
of it. Thus, in the case of Parker v. Griswold,^ the plaintiff
owned land upon one side only of the stream, and the action
was for diverting the water thereof by an artificial trench,
and not returning the same into the stream until after it had
passed the plaintiff's land. The action was sustained, al-
though the plaintiff had never appropriated the water of the
stream to use, and no damages were shown to have resulted
to him from such diversion. So, in the case of Tyler v.
WilkinsoUj^ the language of Story, J. upon this point is :
" Prima fade, 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. In virtue of this own-
ership he has a right to the use of the water flowing over it,
in its natural current, without diminution or obstruction.
.... The consequence of this principle is, that no proprie-
tor has a right to use the water to the prejudice of another.
.... In their character as riparian proprietors, they have,
annexed to their lands, the general flow of the river,
so far as it has not been already *acquired by some [*232] •
prior and legally operative appropriation."
6. The application of the foregoing principles to the sub-
ject of irrigation may be best illustrated by a reference to a
few leading cases involving an inquiry into the mode and
extent to and in which this may be done.
In the case of Weston v. Alden,^ the controversy was be-
tween two owners of meadows upon the same stream. The
1 Parker v. Griswold, 17 Conn. 288.
2 Tyler v. Wilkinson, 4 Mason, 397, 403. See 5 Duranton, Cours de Droit
Fran9ais, 203.
8 Weston V. Alden, 8 Mass. 136.
298 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
defendant, by sluices cut in the bank of the stream, diverted
the water thereof on to his meadow, whereby some part of it
was absorbed and wasted, but returned all the remainder
into the stream before reaching the plaintiff's meadow below.
The court held, that '• a man owning a close on an ancient
brook may lawfully use the water thereof for the purpose of
husbandry, as watering his cattle, or irrigating the close,
and he may do this, either by dipping water from the brook
and pouring it upon his land, or by making small sluices for
the same purpose. And if the owner of a close below is
damaged thereby, it is damnum absque injuria^
In Blancliard v. Baker,i Weston, J., in referring to the
rights of a riparian proprietor, connected with the remark,
that " he may make a reasonable use of the water itself for
domestic purposes, for watering cattle, or even for irrigation,
provided that it is not unreasonably detained, or essentially
diminished," adds, that, " although by the case of Weston v.
Alden the right of irrigation might seem to be general and
unlimited, yet subsequent cases have restrained it consistent-
ly with the enjoyment of the common bounty of nature by
other proprietors, through whose land a stream had been
accustomed to flow. And the qualification of the right by
these later decisions is in accordance with the common
law."
The case of Perkins v. Dow^ is earlier than either
[*233] of the *above, and was one between the owner of an
ancient mill and a riparian proprietor above, for
diverting the water for purposes of irrigation. The court
held that ho had a right to diminish the quantity of water in
the stream as against the mill owner below, by spreading it
upon the land to manure and enrich it, provided he did it
prudently, and did not deprive the mill-owner of the surplus.
The case of Colburn v. Richards ^ differs from that of
1 Blancluird v. IJakcr, 8 Me. 253, 2G6.
2 Perkins v. Dow, 1 Root, 535.
8 Colburn v. llicliards, 13 Mass. 420.
Sect. 2.] RIGHTS OF IRRIGATION. 299
Weston V. Alden by the fact that the land-owner stopped
the stream altogether by a dam, in order to raise a head of
water whereby to irrigate his land, until it rose and ran over
the dam, and thereby an ancient mill of the i)lainti(r was
injuriously affected ; and it was held to be an unlawful act
on the part of the land-owner.
So in Anthony v. Lapham,i in which the controversy was
between two owners of meadows upon a stream, the upper
one stopped the water by a dam, so that a large portion of it
was diverted on to his land, where much of it was absorbed
or evaporated, and the same was not returned into the stream.
The court recognize the general right of diverting water for
purposes of irrigation, and, in giving judgment in favor of
the lower owner, lay stress upon the circumstance that the
upper one had stopped the water by a dam, and remark, in
regard to irrigation, " he must use it in this latter way so as
to do the least possible injury to his neighbor, who has the
same right."
6. The discussion can hardly be complete without refer-
ring to two or three recent English cases where the subject
of irrigation is considered, and in which the courts take
occasion to speak of several of the American cases, already
cited, with approbation, and to intimate that the American
law upon the subject is much less stringent than that of
England ; which, perhaps, may be accounted for by
the size and *quantity of water of many of the mill- [*234]
streams in this country compared with those of
England.
In Enibrey v. Owcn,^ the plaintiff was a mill-owner upon
a stream upon which the defendant owned meadows situate
above this mill, which he had been in the habit of irrigating
at irregular intervals, but only when the stream was full,
and when no actual damage was thereby done to the plain-
1 Anthony v. Lapliam, 5 Pick. 175.
2 Embrey v. Owen, 6 Exch. 353. See Masoa v. Hill, 3 Barnew. & Ad. 30-t ;
Crooker v. Bnig-,% 10 Wend. 260.
300 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
tiff's mill. And it was held, that by so doing he violated no
rights of the plaintiff, but simply exercised such as belonged
to himself. Parke, B., in giving judgment, examines the
respective rights of the parties as to diverting water for
purposes of irrigation, and intimates that it would not be
allowed, as in the United States, to cut sluices for the pur-
pose in the banks of the stream, but states that each case
must depend upon its own circumstances. It is, in his judg-
ment, a question of degree, and it is impossible to draw
precise limits between what is a reasonable and what a
wrongful use. And the only general rule to be drawn from
the case seems to be, that while each riparian proprietor
has a right to the usufruct of the stream flowing through
or along his land, this right is subject to similar rights on
the part of the proprietors on each side of the stream,
within reasonable limits of enjoyment, while an action will
lie only for an unreasonable and unauthorized exercise of
the right.
The other case referred to is that of Sampson v. Hoddi-
nott,^ where the question was between two owners of mead-
ows. The defendant had stopped the water of a stream
running through the meadows of the parties, for the pur-
pose of irrigating the upper meadow. The effect was that
the water, instead of reaching the lower meadow in the
early part of the day, did not reach there till so late in the
afternoon that the owner of the meadow could not usefully
apply it in irrigating it as he wished to do.
[*235] *The court treat the right of irrigation as one be-
longing to a riparian proprietor as an incident to his
estate, which he is at liberty to use or not, but does not lose
it by neglecting to use it, although a proprietor below him
may have exercised the like right upon his own land, and al-
though the lower proprietor may be somewhat injured in the
enjoyment of his right by the upper one beginning to ex-
1 Sampson v. Hoddinott, 1 C. B. n. s. 590 ; Crossley v. Lightowler, L. K. 3
Eq. 296.
Sect. 2.] EIGHTS OF ^IRRIGATION. 301
ercise that Ijclonging to himself. No user bj a riparian pro-
prietor affects the natural rights of other proprietors above or
below him, unless it be of a nature to affect the use they
have made, or the power to use such rights, and thereby to
raise a presumption of a grant, and so as to render the tene-
ment above or below a servient one. Merely using the
stream for irrigation, in the exercise of a natural right, how-
ever long continued, would not have the effect to make the
upper or lower tenement a servient one, or, in any way, af-
fect the natural right of the owner as to the use of the water.
If the use be of more than the natural right, the owner of
the other tenement may have an action, whether he has be-
gun to use it on his own land or not, for it is an invasion of
his right, and he may defend it by a suit, though he may not
be able to show actual damages. The owner of an upper
tenement might divest himself, by grant, of his right to use
the water for irrigation. But a mere non-user of the right
would raise no presumption of such a grant. But the court
held that the mode of using the defendant's right in this case,
by penning up the entire water for a part of the day, and
thereby, during that time, wholly depriving the plaintiff of
the natural flow of the stream, was an unreasonable one, for
which he was liable in the present action.
7. In the latter position the court assume the same ground
as that upon which the case of Colburn v. Richards, above
cited, seems to have been decided. And the suggestion,
that an upper proprietor may lose his right to irrigate his
lands by grant, is in accordance with the doctrine of
*the case of Cook v. Hull,^ where it was held that [*236]
the owner of a mill may, by long exclusive enjoyment
of the entire waters of a stream, the same being necessary for
the working of the mill, exclude the riparian proprietor
above from diverting any part thereof for purposes of irriga-
tion, if by such diversion he is injuriously affected in the ope-
ration of the mill. In that case the mill had enjoyed the
1 Cook r. Hull, 3 Pick. 269. See also Colburn v. i:ichards, 13 Mass. 420.
802 TEE LAW OF EASEMEi^TS AND SERVITUDES. [Cn. IIL
water adversely for forty years, but, under the modern rule
as to prescription, twenty years would undoubtedly be equal-
ly effectual.
8. The court of Pennsylvania considered this sul)jcct in
the case of Miller v. Miller,^ where the defendant had con-
veyed to the plaintiff a parcel of land situate upon a stream,
and subsequently diverted portions of the water for the pur-
pose of irrigating his other lands lying upon the same stream.
As no reference is made to any mill, it is to be presumed
that the question was simply between two land-holders, where
one claimed damages for being deprived of the natural flow
of the stream running through his land. In speaking of the
rights of such proprietors, the court say : " The law requires
of the party that he should use the stream in a reasonable
manner, and one of the conditions of the use is, that he do
not destroy, or render useless, or materially lessen or affect
the application of the water by those situated above or below
him on the stream
" The reasonableness of the detention of the water by the
upper proprietor, must depend on the circumstances of each
case, and is to be judged of by the jury." And they illus-
trate the remark, by supposing the case of a large stream,
where the diversion for purposes of irrigation might hardly
be perceptible in its effects upon the volume of the stream ;
and another, of a very small stream, where such diversion
might absorb, substantially, the whole of the stream ;
[*237] in *regard to which different rules would be applied
in determining the reasonableness of the use. The
only practical test which they suggest is, that an action
would be for a diversion, " whenever so much of the volume
of water is obstructed as to be plainly perceptible in its prac-
tical uses below."
9. This reference to the size and state of a stream, in de-
termining the respective rights of riparian proprietors along
its course, to ap})ly its waters for purposes of irrigation, is
1 Miller V. Miller, 9 Pcnn. St. "4.
Sect. 2.] RIGHTS OF IRRIGATION. 303
adopted by the court of New York, also, in the case of Ar-
nold V. Foot,^ above cited.
The action in that case was for diverting and wasting the
waters of a spring, which had previously flowed from the
defendant's land through that of the plaintiff's. The court
say : " The defendant had a right to use so much of the
water as was necessary for his family and his cattle, but had
no right to use it for irrigating his meadow, if thereby he de-
prives the plaintiff of the reasonable use of the water in its
natural channel," and cite the language of Nelson, J., in
Crooker v. Bragg.^ When speaking of the right to running
water, he says : " We cannot take from one party a right for
the sake of the convenience of another."
So, where the owner of land, in which was a spring of water
with a watercourse from it into the land of an adjacent
owner, stopped the flow and used it for irrigation on his
land in a proper manner, but thereby wholly deprived the
adjacent land-owner of the same, it was held that he had no
right thus to do. While he had a right to apply it in a reason-
able manner and in a reasonable quantity for irrigation, he
was not at liberty to deprive the adjacent owner of what he
needed for his cattle.^
10. But the point is so fully considered, and so clearly
stated and illustrated, by Shaw, C. J., in Elliot v. Fitchburg
R. R. Co., that little need be added to the doctrine there
laid down. The stream, in that case, was a small one, and
was fed, in part, by a spring.
The defendants, under a grant from the owner of the land,
had erected a dam just below the spring, whereby they raised
a reservoir, from which, by means of pipes, they drew water
to supply their engines used upon their railroad.
The plaintiff owned land through which the original stream
flowed ; the land of another proprietor intervening between
1 Arnold v. Foot, 12 Wend. 330. See ante, chap. 3. sect. 1, pi. 15.
2 Crooker v. Brag<r, 10 Wend. 2f)4.
s Gillctt V. Johnson, 30 Conn. 180.
304 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. IH.
the lot ill which was the dam and the plaintiff's land. The
action was for this diversion by means of the
[*238] *pipes laid from the reservoir, in which the plain-
tiff claimed to recover, though he failed to show
any actual damages occasioned thereby. But the court
held that he could not recover unless he could show some
actual appreciable damage, because, to a certain extent, a
right to divert the water for use was incident to the land on
which the dam was, and if they had not transcended this, the
defendants had violated no right of the plaintiff,
" This appears," says the Chief Justice, " to have been a
small stream of water, but it must, we think, be considered
that the same rules of law apply to it, and regulate the rights
of riparian proprietors through and along whose lands it
passes, as are held to apply to other watercourses, subject to
the consideration that what would be a reasonable and
proper use of a considerable stream, ordinarily carrying a
large volume of water, for irrigation, or other similar uses,
would be an unreasonable and injurious use of a small
stream just sufficient to furnish water for domestic uses, for
farm-yards, and watering-places for cattle
" The right of flowing water is now well settled to be a
right incident to the property in the land. It is a right
jjuhlici juris, of such a character that, while it is common
and equal to all through whose land it runs, and no one can
obstruct or divert it, yet, as one of the beneficial gifts of
Providence, each proprietor has a right to a just and reason-
able use of it as it passes through his land, and so long as it
is not wholly obstructed or diverted, or no larger appropria-
tion of the water running through it is made than a just and
reasonable use of it, it cannot be said to be wrongful or in-
jurious to a proprietor lower down. What is a just and
reasonable use may often be a difficult question, depending
on various circumstances.
" To take a quantity of water from a large running stream
for agricultural or manufacturing purposes would cause no
Sect. 2.] RIGHTS OF IRRIGATION. 305
sensible or practicable diminution of the benefit to the preju-
dice of a lower proprietor, whereas, taking the same
quantity *from a small running brook, passing [*239]
througli many farms, would be of great and mani-
fest injury to those below who need it for domestic supply,
or watering cattle, and therefore it would be an unrea-
sonable use of the water, and an action would lie in the
latter case, and not in the former. It is, therefore, to a
considerable extent a question of degree. Still the rule is
the same, that each proprietor has a right to a reasonable use
of it for his own benefit, for domestic use and for manufac-
turing and agricultural purposes It has sometimes
been made a question, whether a riparian proprietor can
divert water from a running stream for purposes of irriga-
tion. But this, we think, is an abstract question, which
cannot be answered either in the affirmative or negative, as
a rule applicable to all cases. That a portion of the water
of a stream may be used for the purposes of irrigating land
we think is well established as one of the rights of the pro-
prietors of the soil along or through which it passes. Yet a
proprietor cannot, under color of that right, or for the
actual purpose of irrigating -his own land, wholly abstract
or divert the watercourse, or take such unreasonable quanti-
ty of water, or make such unreasonable use of it, as to
deprive other proprietors of the substantial benefit which
they might derive from it, if not diverted or used unreason-
ably The right to the use of flowing water is
piiblici juris, and common to all the riparian proprietors ;
it is not an absolute and exclusive right to all the water
flowing past their land, so that any obstruction would give a
cause of action, but it is a right to the flow and enjoyment
of the water, subject to a similar right in all the proprietors,
to the reasonable enjoyment of the same gift of Providence.
It is only, therefore, for an obstruction and deprivation of
this common benefit, or for an unreasonable and unauthor-
ized use of it, that an action will lie. But for such depriva-
20
306 THE LAV OF EASEMENTS AND SERVITUDES. [Ch. III.
tion or unwarrantable use an action will lie, though there be
no actual, present damage."
11. Two things, however, should be kept in mind
[*240] in *considering this sul)ject : — 1. That any diver-
sion of water, properly so called, except for domestic
use or purposes of irrigation, is a violation of the natural
rights of property in the riparian proprietors below ; and, 2.
As seems to be more than indicated by the cases already
cited, a riparian proprietor may not stop the flow of the
entire stream by a dam, and pen the same back for the
purposes even of irrigation, if thereby he substantially de-
prives other proprietors upon the stream of the natural flow
thereof. " Whether or not," in the language of Harris, J.,
in Van Hoesen v. Coventry, " a diversion of water is reason-
able, is a question not so much as mentioned by any writer
or judge. The very proposition assumes the right of the
proprietor above to use the water for his own purposes, to the
exclusion of the proprietor below, a proposition inconsistent
with the doctrine universally admitted, as we have seen, that
all the proprietors have the same rights." ^
12. As the uses above spoken of are not, properly, those
of servitude or easement between dominant and servient
estates, nor is it easy to define them, except as they are
something gained to one estate or lost to the other beyond
what naturally belongs to it of right ; it may be well to
repeat, that the right of a riparian proprietor, jure natures,
to divert water from a stream, when reduced to a simple
proposition, seems to be this. He may not do it for any
purpose except domestic uses, and that of irrigating his
land ; and whether, and to what extent, he may do the
latter depends, in each particular case, upon whether it is
reasonable, having regard to the condition and circumstances
of other proprietors upon the stream, and this is to be
determined, in all cases of doubt, by a jury. But in no case
may he do this so as to destroy, or render useless, or materi-
1 Van llocscn v. Coventry, 10 Barb. 518, 522.
Sr.CT. 2.] RIGHTS OF IRRIGATION. 307
ally diminish or affect the application of the water by the
other proprietors.^
*13. It follows, from what has gone before, that if [*241]
by any means a proprietor of land upon a stream
shall have acquired rights to the enjoyment of the water,
beyond those naturally belonging to the same, as above lim-
ited and explained, it must have been done at the expense of
the right of some other proprietor, by grant or otherwise, in
relation to whose estate his own becomes a dominant to the
other as a servient one. In other words, his own thereby
gains an easement while the other is subjected to a servi-
tude.
How easements may be acquired by grant or an adverse
user, which is regarded as evidence of a grant, was consid-
ered in a former part of this work.^ But as this, so far as
it is necessary, can better be illustrated when treating of the
rights of mill-owners in connection with those of irrigation,
than by regarding them separately, whatever is necessary to
be added upon the subject of irrigation will be placed under
the rights of mill-owners, in order to avoid unnecessary rep-
etition,
14. It is hardly necessary to premise, after what has been
said, that one may acquire an easement to divert water,
whether for irrigation or other purposes, by grant or adverse
user, as against other riparian proprietors below, whether it
be to the injury of the land-owner, as such, or of an existing
mill upon the stream. But he may not without a grant
begin to divert the water of a stream for any purpose, so as
materially to injure an existing mill, though it may not have
stood for twenty years.^
1 3 Kent, Comm. 440 ; approved and commended in Embrey v. Owen, 6
Exch. 353 ; Wood v. Waud, 3 Exch. 748 ; Sampson v. Hoddinott, 1 C. B. n. s.
590; Webb v. Portland Mg. Co., 3 Sumn. 189, 199; Piatt v. Root, 1.5 Johns.
218; Wadsworth v. Tillotson, 1.5 Conn. 366,375; Twiss v. Baldwin, 9 Conn.
291, 308 ; Miller v. Miller, 9 Penn. St. 74 ; Hetrick v. Deachler, 6 Penn. St. 32 ;
Pugh V. Wheeler, 5 Dev. & B. .50, 55, 59.
2 Ante, chap. 1, sect. 4.
8 Ward V. Kobins, 15 Mees. & W. 237 ; Arnold v. Foot, 12 Wend. 330, 333 ;
308 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
[*242] *15. It may be further added, that whatever would
constitute a nuisance or injury to an incorporeal
right of another, in respect to the use or enjoyment of run-
ning water as an element, may, as a general proposition,
grow into a right of adverse enjoyment, by grant, or such
use as is evidence of a grant, and thereby become an ease-
ment which one land-owner may have in that of another.
And among the familiar illustrations which have before been
mentioned, are those of watering cattle, or taking water for cu-
linary or domestic purposes, at a spring or watercourse in an-
other's land, as easements belonging to an ancient messuage
in possession of him who claims to exercise such right.^
SECTION III.
OF THE USE OF WATER FOR MILLS.
1. Of the right to obstruct the flow of water for mills.
2. Who may exercise this right.
3. Definition of mill-site, mill-privilege, &c.
4. How occupying one affects another mill-privilege.
5. Case of Bealey v. Shaw.
6. Effect of a prior occupation of a mill-site.
7. Mill-owners regarded as riparian owners.
8. Effect of prior occupation of mill-sites. American cases.
9. Same subject. English cases.
10. Same subject. Pugh v. Wheeler, &c.
11. Effect of parts of one privilege being on separate owners' lands.
12. Manner and extent of use of water for mills.
13. When a mill-dam may set back water upon land of another.
14. Whether a mill-dam may set back water into the stream above.
15. How far a mill-dam must cause actual damage, to be a nuisance.
16. Mill-owner liable, if he actually flows beyond the line of his land.
17. Mill-owner may not enlarge the quantity in the stream.
18. Unless such increase result from cultivating the land.
19. What a mill-owner does not appropriate is open for others.
20. Effect of double ownership of mill and land-owner on his rights.
21. Extent of his right to the fall of water within his land.
22. When liable for flowing on to others' lands. When this by ice.
Frankum v. Falmouth, 6 Carr. & Y. 529 ; Mason v. Hill, 5 Barnew. & Ad. 1
Cox V. M-itthcws, 1 Ventr. 237 ; Buddington v. Bradley, 10 Conn. 213, 219.
1 Manning v. Wasdule, 5 Adolph. & E. 758.
Sect. 3.] USE OF WATER FOR MILLS. 309
*28. Right of mill-owner to disch.arge water on to lands below. [*243]
24. One may change the stream in his own land.
25. Mill-owners on the same stream may each use it reasonably.
26. What is a reasonable use has reference to the several proprietors.
27. No mill-owner, as such, may divert water of a stream.
28. How far the owner above may use water to the injury of one below.
29. Of detaining water by upper mills to injury of a lower one. Cases.
30. How mills are to be managed in reference to each other.
30 rt. Rights to establisli and iise reservoirs.
31. Ownership of mill-priyileges in common.
32. Same rule as to diversion in public and private streams.
33. Lower mills may avail of improvements made by upper ones.
34. Rule as to diverting water extends to remote sources of the stream.
35. Wliat use of water in reference to mills is an easement.
36. When a specific use is a measure of power granted.
37. Of a grant by an owner on one side to the owner on the other.
38. A use that woi;ld be a nuisance may become an easement.
39. A right to control water for a mill, no objection to its use bj' land-owner.
40. No adverse right gained by use, unless it invades existing rights.
41. A right to divert water may be gained by adverse user.
42. What rights as to another's land may be gained by prescription.
43. One may gain a right to increase his fall by prescription.
44. Right of mill-owner to clear his race in another's land.
45. Right to repair embankments on another's land.
46. Effect of changing form or use of a mill upon its rights.
47. Effect of changing the channel of the stream as to mills.
48. A right to foul water a limited one.
49. Degree of care to be exercised in respect to mills.
50. How far a mill-owner liable for damage by freshets.
51. When owner of mill liable for water soaking into other lands.
52. Remedy which owner of a mill has for obstructing it.
53. Case of Rogers v. Bruce. One of limited easement.
1. One of the most common instances of acquiring a right
by adverse enjoyment, is that of obstructing the waters of a
stream, and often of thereby setting back water upon the
land of another, by means of a dam erected upon the owner's
land, for the purpose of raising a head of water for the oper-
ation of mills or hydraulic works. If this is continued un-
interruptedly and adversely for the term of twenty years, the
mill-owner acquires thereby an easement, or right to obstruct
such stream, or to flow such land, to the extent to which it
shall have been enjoyed.^
1 Townscnd r. M'Donald, 14 Barb. 460, 467; Hart v. Vose, 19 Wend. 365;
Colvin V. Burnet, 17 Wend. 564, 567; Wright v. Howard, 1 Sim. & S. 190,
203; Hurlburt v. Leonard, Brayt. 201 ; Middletoa v. Gregoric, 2 Rich. 631.
310 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. Ill,
A right to pond water upon another's land is an incor-
poreal hereditament. It is a freehold interest, and can only
pass by deed, if regarded as a permanent right. But if it be
a mere license, it is revocable. But equity, in some of the
States, will enforce an executed license, though by parol, if
granted upon a consideration, or upon the faith of which
money has been expended, if the licensee would be without
adequate compensation if the license were revoked.^
But a mill-dam cannot, lawfully, be maintained so as to
interfere with or essentially lessen the use of a naturally
navigable stream for purposes of a highway, unless the dam
itself creates the navigable quality of the stream.^
[*244] *From the importance of hydraulic works of art,
for the comfort and convenience of man, and from
the ordinary necessity there is of raising a head of water by
means of a dam, in order to create the power requisite to
operate the same, a right to do this by any riparian proprie-
tor is deemed to be incident to the property in the land, jure
nature, in the same sense as that of applying water to pur-
poses of irrigation. And inasmuch as to cause this obstruc-
tion necessarily hinders the flow of a stream, to a greater or
less interference with the enjoyment of the same by other mill
or land owners, the same rule of reasonableness in its appli-
cation is applied in the case of mills as in that of irrigation.
And although the exercise of this right, so long as it is con-
fined within the limits of the estate of the mill-owner, can
hardly be called a proper easement, or the obligation to suf-
fer it to be done be called a servitude, yet the rights which
every mill-owner has to receive the flow of water from a
superior riparian proprietor, and to discharge the same upon
the land of a lower one, are spoken of by courts and writers as
" natural servitudes and easements," although not, even in
theory, held by virtue of any grant from these proprietors.^
1 Bridges V. Turccll, 1 Dev. & Bat^ 497 ; Snowdca v. Wilas, 19 Ind. 13.
Ante, pp. 23, 24, and cases cited.
2 Hall V. Lacy, 3 Grant's Cas. 204.
3 Kauffman v. Giicseincr, 26 I'cnn. St. 407 ; Prescott v. Williams, 5 Mete.
Sect. 3.] 1 USE OF WATER FOR MILLS. 311
2. It becomes necessary, in the first place, to inquire who
may avail himself, as a riparian proprietor, of the right to
obstruct the flow of the waters of a stream by a dam across
the same, under the character of a mill-owner. Although
a " mill site," or " sQi^t," or " privilege," — for all these
terms arc in use, — may not require any definite amount or
capacity of power to entitle the owner thereof to exercise the
right of penning back the waters of a stream, it does imply
the capacity of thereby creating sufficient power by the fall
of the water, within the owner's premises, to be susceptible
of being applied to some useful purpose of art. One
*privilege may be adequate to carry a single mill, [*24o]
another may put in motion the spindles of a whole
village.
3. There have been various definitions of a mill site, seat,
or privileg-e, which it may be well to refer to in this connec-
tion.
Thus, in Russell v. Scott, the court say that a " mill-seat,"
or a " watercourse suitable for the erection of mills," which
is " but another expression for mill seat or seats," implies
land upon which a mill may be erected, for " it is an ab-
surdity in terms to say that a stream is suitable for the erec-
tion of mills upon which no mill can be erected." ^
In M'Calmont v. Whitaker, Gibson, C. J. says : " The
water-power to which a riparian owner is entitled consists of
the fall in the stream when in its natural state, as it passes
through his land, or along the boundaries of it. Or, in other
words, it consists of the difference of level between the sur-
face where the stream first touches his land and the surface
where it leaves it." ^
429 ; Gould v. Boston Duck Co., 13 Gray, 442 ; Gary v. Daniels, 8 Mete. 466 ;
480; Brace v. Yale, 10 Allen, 441 ; Brown v. Bush, 45 Penn. 66.
1 Russell V. Scott, 9 Cow. 281 ; Crosby v. Bradbury, 20 Me. 61. See Stack-
pole V. Curtis, 32 Me. 383 ; Jackson v. Vermilyea, 6 Cow. 677 ; Moore v.
Fletcher, 16 Me. 63.
2 M'Calmont v. Whitaker, 3 Rawle, 84, 90. Brown v. Bush, 45 Penn. 66.
312 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
This definition is adopted in terms by the court of Illinois,
in Plumleigh v. Dawson.^
And Huston, J., in the above cited case, in applying the
rule in question, says : " To the lower line of M'Calmont, he
(Whitaker) could dam back the watof, and no further
The rule must be, that a man has a right to dam back the
water to his own upper line, as the water was, and as the
bottom of the creek was, in a state of nature, when he built
his dam."
Questions often arise as to the mode of measuring and as-
certaining these, especially where one dam has been substi-
tuted for another, and the comparative extent of the flowing
by one or the other is sought to be measured and ascertained.
In one case, it was attempted to measure the natural fall in
a stream by a process of instrumental levelling. But the
court held that this was less satisfactory than, and must yield
to, " actual visible facts," such as a fixed object in the stream,
before the dam in question was erected, being out of water
but covered afterwards, the rise and fall of the water on the
posts and abutments of a bridge above, or drowning out a per-
manent object upon the bank of the stream, because instru-
mental measurements are liable to accidents and mistakes.
The court instructed the jury that " water will find its level
with more certainty than science can do the same work.
The instrumental levelling does show that the plaintiff has
more fall upon his land than he has elevation at his dam ;
but if that does not tell the height of the water set back as
clearly as shown by the water itself, then the fact demon-
strated upon the ground must govern. We do not under-
value scientific measurements, but the history of all engineer-
ing in Pennsylvania has shown that, wherever science has
disregarded and set aside the testimony of local experience
and observation, it has blundered, and has had to do its work
over again." " And then nature has her own secrets which
she has not revealed even to science. Who can calculate for
1 Plumleigh v. Diuvson, 1 Gilm. 544.
Sect. 3.] USE OF WATER FOR MILLS. 313
what the watermen call ' piling ' of water, or for the effect of
removing a given obstruction a few rods further down stream,
whereby the velocity of the current at a particular point is
changed, or for atmospheric resistance to water ? " ^
In A^an Iloesen v. Coventry,^ Harris, J. says : " The gen-
eral doctrine relating to watercourses is, that every proprie-
tor is entitled to the use of the flow of the water in
its *natural course, and to the momentum of its fall [*246]
on his own land." While in Davis v. Fuller^ the
Judge (Collamer) limits it by saying : '•' No man can be
said to liavc a mill-privilege which cannot be used without
injury to others."
Chancellor Bland, in Binney's case,* undertakes to define a
" natural mill-site," by means of a diagram in the form of a
right-angled triangle, having for its hypothenuse the line of
the slope or descent in the stream, and the other sides formed
by a horizontal line extending from the highest point in the
stream till it meets a perpendicular erected at the lowest
point in the slope of the stream. The points from which the
horizontal line is drawn, and from which the perpendicular
is erected, must neither of them transcend the limits of the
owner's land, if it is intended thereby to define the extent
to which a property in the mill-site can be claimed. The mill-
power, as here represented, is assumed to be created by con-
ducting the water along the horizontal line to the point of its
intersection with the perpendicular, and causing it to propel
machinery by falling therefrom to the lowest point in the
stream, the horizontal line representing the " head-race," the
perpendicular one the " tail-race," which would, of course,
be equal to the fall from the upper to the lower points in the
stream.^ It is immaterial what may be the length of the head-
1 Brown v. Bush, 45 Penn. 61.
2 Van Hoesen v. Coventry, 10 Barb. 518, 520.
8 Davis V. Fuller, 12 Vt. 1.78.
* Binney's case, 2 Bland, Ch. 99, 114.
6 " Head and Fall," as applied to an occupied mill-privilege, is " the dis-
tance of the surface of the water above the dam to the bottom of the race-way.
314 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IIL
race, or what that of the tail-race may be, provided it is high
enough to have the momentum of fall sufficient to propel the
machinery of the mill. A mill-site, as thus described, is in
its nature an entire thing, incapable of division.
In Crittenden v. Field, the grant of a mill-privilege was
described as commencing at a certain rock and running to a
certain dam, and was held to be a right to flow to the
[*247] rock, *and limited the privilege from the dam below
to the rock above, but not to flow above the rock.^
But by " mill-privilege " it would seem that something
more was meant than the quantum of power applicable to
driving machinery, or the limits and bounds within which
this is to be applied. It embraces, also, the right which the
law gives the owner, to erect a mill thereon, and to hold up
or let out the water at the will of the occupant, for the pur-
pose of operating the same in a reasonable and beneficial
manner.^
In Bardwell v. Ames, Shaw, C. J., speaking of what had
been granted in that case, says : " We think it was the whole
of the water-power and mill-privilege created and established
by the artificial works then created for the purpose of appro-
priating and applying the current of the stream for mill pur-
poses, consisting of the wing dam, the side dam, the guard
gates, the pond, reservoir, or general passage above the mills,
and the stone flume " ; showing how broad a signification
may be given to the term loater-power and mill-privilege ^
when used as terms of description in a grant.^
4. In whatever terms a mill site or privilege may be de-
scribed, it is obvious that two or more of these cannot be oc-
cupied upon the same stream, within any reasonable distance
from each other, without the operation of the one in some
where the water strikes after it has passed the wheels on which it operates."
Per Shaw, C. J., in Bardwell v. Ames, 22 Pick. 333, 362.
1 Crittenden v. Field, 8 Gray, 621.
2 Gould V. Boston Duck Co., 13 Gray, 442, 453 ; Pettee v. Hawes, 13 Pick. 326;
Brace v. Yale, 10 Allen, 447.
3 Bardwell v. Ames, 22 Pick. 333, 355,
Sect. 3.] USE OF WATER FOR MILLS. 815
measure injuriously affecting that of the other. And it often
becomes a question of difficulty to determine whether such
injury is the foundation or not for an action at law. The
mills may be of unequal magnitude and capacity, the one
may require a less volume of water to propel it than the
other, or one may require the water of the stream to be re-
tained till accumulated in sufficient quantity to carry the
works in the same, and the other be thereby delayed while
it is so accumulating, and, being incapacitated to use
it all *as it shall then be discharged by the vipper mill, [*248]
the lower one will lose the benefit of the natural flow
of the stream. And even if no such inequality in the works
exist, there must necessarily be a delay and obstruction, by
the upper mill, of the water flowing to supply the lower one.
And, on the other hand, the head raised to work the lower one
may set back so as to check or diminish the rapidity with which
the water is discharged from the tail-race of the upper one.
Questions of this kind have been numerous, and, though
it is not intended to examine them in detail, it is desirable
to collect enough of them to draw some general rules which
may be of practical application in like or analogous cases.
5. The reader whose attention has not already been called
to the fact, will be surprised to find how recent, in point of
time, have been the cases which are now regarded as the
leading ones upon this subject, in England as well as in this
country. Few cases, for instance, have been more frequently
cited than that of Bealey v. Shaw, which has become a lead-
ing authority, and was decided in 1805, and is cited here,
somewhat at length, in order to trace the course of the deci-
sions of the several questions which were raised in its discus-
sion. In that case the mill of the defendant, which was an
ancient one, was operated by means of a dam and a sluice,
which conducted the water from the stream, and after having
been used at his mill, the same was discharged into the
stream below the site of the plaintiff's mill. The plaintiff's
mill had been in operation but eight years, and was worked
316 THE LAW OF EASEMENTS AND SERVITUDES. [Cir. III.
by the water of the stream which was not turned into the
sluice of the defendant's mill, when the defendant built a
new dam, enlarged his sluice and the work at his mill, and
took the whole water of the stream, thereby depriving the
plaintiff of all means of operating his mill. And for this
diversion the action was brought. It was contended that the
defendant, by having appropriated the stream to the purposes
of a mill, might, as against a recent mill, apply as
[*249] much water as he had occasion to use *without
being responsible for so doing. But this position
was overruled by the court. They held that twenty years'
exclusive enjoyment of the water in any particular manner
affords conclusive presumption of right in the party so
enjoying it, derived from grant or act of Parliament ; in
which, however, as will be seen hereafter, the language of
the court should have been considerably qualified. But that,
if this principle were applied, it would not extend to any
more water than had been used at the defendant's works at
the time of the erection of the plaintiff's mill. And Grose,
J. said : " The plaintiff had a right to all the water coming
over that weir (dam) which had not been carried off by
such sluice." And the rule stated by Le Blanc, J., in
which he substantially agreed with Lawrence, J., is : " That
after the erection of works, and the appropriation by the
owner of the land of a certain quantity of the water flowing
over it, if a proprietor of other land afterwards takes what
remains of the water before unappropriated, the first-men-
tioned owner, however he might, before such second appro-
priation have taken to himself so much more, cannot do so
afterwards." ^
6. One of the principal points in this case, as it will be
perceived, was how far a prior occupation of a mill-site
gives the owner and occupant thereof an exclusive right to
the control of the waters of the stream, and how far this
1 Bealey v. Shaw, 6 East, 208. See also 0ary v. Daniels, 8 Mctc. 466, 477
Baldwin v. Caskins, 10 Wend. 1G7 ; Canham v. Fisk, 2 Crompt. & J. 126.
Sect. 3.] USE OF WATER FOR MILLS. 317
depends upon the mill, by which such occupation is had,
being an ancient one. Much discussion has been had upon
the subject, nor have the decisions in all cases been the
same.
In Piatt V. Root,^ the first occupant of a mill-privilege
claimed that he had, thereby, acquired a right to the stream
above and below so far that no second occupant
could use *or detain the water thereof to the least [*250]
injury of his mill. But this claim, it will be per-
ceived, is not like that in Bcaley v. Shaw, of having appro-
priated the whole waters of the stream by the erection of a
mill ; but that, to the extent to which it had actually been
appropriated, no one had a right to interfere with the undis-
turbed enjoyment thereof. But such a right, as incident to
a prior occupancy, was denied by the court. They adopt the
language of Thompson, J., in Palmer v. Mulligan, ^ that
" the elements being for general and public use, and the
benefit of them appropriated to individuals by occupancy,
this occupancy must be regulated and guarded with a view
to the individual right of all who have an interest in their
enjoyment, and the maxim, Sic utere tuo ut alienum non
l(sdas, must be taken and construed with an eye to the
natural rights of all. Although some conflict may be pro-
duced in the use and enjoyments of such rights, it cannot
be considered, in judgment of law, an infringement of the
right. If it become less useful to one in consequence of the
enjoyment by another, it is by accident, and because it is
dependent on the exercise of the equal rights of others
The erection of dams on all rivers is injurious, in some
degree, to those who have mills on the same stream below,
in withholding water. Yet this had never been supposed to
afford a ground of action Each one had an equal
right to build his mill, and the enjoyment of it ought not
1 Piatt V. Root, 15 Johns. 213. See Panton v. Holland, 17 Johns. 92.
2 Palmer v. Mulligan, 3 Caines, 307. See Davis v. Winslow, 51 Maine,
290.
318 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
to be restrained because of some trifling inconvenience to
the other." And they mention among these, '^ insensible
evaporation, and decrease of the water by dams, and the
occasional increase or decrease of the velocity of the cur-
rent, and the quantum below." And the language of
Livingston, J., in the case of Palmer v. Mulligan, is: "It
becomes impossible to attempt to define any case which may
occur of this kind. Each must depend on its own circum-
stances."
[*251] *It may be stated, as an unqualified proposition,
that no priority of occupation or use of water by a
mill-owner upon a stream within the limits of his own estate
affects the right of a riparian proprietor above to erect and
operate a mill, in a suitable and reasonable manner, upon
his own land.i
This remark applies to cases where, like that of Gould v.
Boston Duck Company, there had been no prescriptive rights
acquired. But a mill may so use the water of a stream as
to give it prescriptive rights against other riparian owners,
as where the lower of two mills had exercised the exclusive
right to control the water retained by a reservoir dam above
the upper mill, it acquired a prescriptive right to do so, as
against the upper mill, as was the case in Brace v. Yale.^
7. But the rules applicable to the question, what is a suit-
able and reasonable manner of erecting and operating one
mill in reference to the rights acquired by priority of occu-
pation by an existing one, can best be limited and illustrated
by particular cases. That of Tyler v. Wilkinson^ has been
recognized as a leading one both in England and this coun-
try. Speaking of the rights of a lower mill-owner upon a
stream, Story, J. says : " As owners of the lower dam, and
the mills therewith connected, they have no rights beyond
1 Thurher v. Martin, 2 Gray, 394 ; Martin v. Bigelow, 2 Aik. 184 ; Gould v.
Boston Duck Co., 13 Gray, 442, 453. But see Wood v. Waud, 3 Exch. 748,
773.
2 10 Allen, 441.
8 Tyler v. Wilkinson, 4 Mason, 397, 403.
Sect. 3.] USE OF WATER FOR MILLS. 819
those of any other persons who miglit have appropriated that
portion of the stream to the use of their mills. That is,
their rights are to be measured by the extent of their actual
appropriation and use of the water, for a period which the
law deems a conclusive presumption in favor of rights of
this nature They are riparian proprietors, and as
such are entitled to the natural flow of the river without
diminution to their injury In their character as mill-
owners, they have no title to the flow of the stream beyond
the water actually and legally appropriated to the mills.
But in their character as riparian proprietors, they have,
annexed to the lands, the general flow of the river, so far as
it has not been already acquired by some prior or legally
operative appropriation."
As a general proposition, every riparian proprietor has a
natural and equal right to the use of the water in the stream
adjacent to his land, without diminution or alteration. The
right to use implies a right to exercise a degree of control
over it, and even, to some extent, to diminish its quantity.
He may apply it to the purposes of manufacture or the arts,
but may not, in so doing, corrupt it. He may use it for
hydraulic purposes, but may not unreasonably retard its
natural flow, nor injuriously accelerate its motion, by dis-
charging it from his works in an unreasonable manner, nor
suddenly, nor in excessive quantities, nor divert it from its
accustomed channel without returning it to the same before
it passes from his own premises to those of another. But
he could not be held responsible for any injurious conse-
quences which might result to others, if he use the water in
a reasonable manner, and the quantity used is limited by
and does not exceed what is reasonably and necessarily
required for the operation and propulsion of works of such
character and magnitude as are adapted and appropriated to
the size and capacity of the stream and the quantity of water
flowing therein.^
1 Davis V. Getchell, 50 Maine, 604 ; Springfield v. Harris, 4 Allen, 494. See
Corning v. Troy, &c. Iron Co., 39 Barb. 311.
320 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
8. In Hatch v. Dwight ^ the court state the law to be :
" The owner of a mill-site, who first occupies it by
[*252] erecting *a dam and mill, will have a right to water
sufficient to work his wheels, if his privilege will
afford it, notwithstanding he may, by his occupation, render
useless the privilege of any one above or below him upon
the same stream ; so if a site once occupied had been aban-
doned by the owner."
This broad doctrine, of the effect of a mere priority of
occupation, has been somewhat criticised by other courts,
and among them by that of Maine, in Butman v. Hussey,^
where, while it is affirmed that a riparian proprietor has a
right to avail himself of the momentum of the water, and
may for this purpose raise a head of water on his own land,
if he do not thereby impair the rights of other proprietors,
it is questioned whether the owner of a mill-privilege, which
had never been occupied, could have an action for an injury
to the same by the erection of a dam below ; and the judge,
Weston, after comparing the doctrine of Hatch v. Dwight
with that of Tyler v. Wilkinson, as to the effect of priority
of occupation, concludes that the weight of authority is with
the latter, and that an exclusive right to a mill-privilege is
not sustained by occupancy alone, for a period less than
twenty years.
Whether or not the doctrine of Hatch v. Dwight may
have been somewhat affected in the extent to which it was
applied by the peculiar laws of Massachusetts upon the
subject of mills, which will hereafter be explained, the sub-
ject was deliberately examined by the court in Thurber v.
Martin,'^ wherein it was held that priority of occupation
secures to the first occupant the exclusive right to the use of
the water to the extent of his occupation. But priority of
use at any particular point upon a stream, however long
1 Hatch V. Dwight, 17 Mass. 289, 296.
2 Butman v. Ilusscy, 12 Mc. 407. Sec also King v. Tiffany, 9 Conn. 162,
168 ; Omelvany v. Jaggers, 2 Hill, So. C. 634.
3 Thurber v. Martin, 2 Gray, 394.
Sect. 3.] USE OF WATER FOR MILLS. 321
continued, can never deprive the owner of the lands bounded
on the same stream, at any point above the mill-pond
of *the first occupant, of the right to have and enjoy [*253]
a similar use of the water as it passes by his land.
In that case, the lower mill had been in operation sixty years,
yet the upper riparian proprietor was held to have a right to
erect and operate a mill upon his own land. But in doing
so he must use the water in i- reasonable and proper manner,
in propelling and operating a mill, suited and adapted in its
magnitude to the size and capacity of the stream, and the
quantity of water flowing therein. Nor could he detain the
water an unreasonable length of time, nor discharge it in
such excessive quantity that it would run to waste. He
must use the water in such a way and manner, that every
riparian proprietor, at points further down the stream, will
have the use and enjoyment of it, substantially, according to
its natural flow, subject, however, to such disturbance and
interruption as are necessary and unavoidable in and by
the reasonable and proper use of it, for the operating of a
mill of Suitable magnitude, adapted and appropriate to the
size and capacity of the stream, and quantity of water flow-
ing therein. And if any proprietor on the stream claims
any special right to the use of the water, more beneficial to
himself or burdensome to the riparian proprietors below
than what may be called the natural or general right to the
reasonable use of the stream, he must establish it by grant
or prescription. The doctrines of this case were reaffirmed
in that of Chandler v. Howland,^ and may be considered as
the well-settled common law of Massachusetts, although, as
already stated, this has been essentially modified in some
respects by the statutes of that State.
The question as to the extent and effect of appropriating
the waters of a stream for mill or other purposes has been
discussed in California, where by statute those working
1 Chandler v. HowLand, 7 Gray, 348. See also Cary v. Daniels, 8 Mete. 478 ;
Smith V. Agawam Canal Co., 2 Allen, 355.
21
322 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
mines are authorized to divert and use the water of
[*254] streams *for the purpose of carrying on their mining
operations. In Ortraan v. Dixon,^ the defendant had
a saw-mill upon a watercourse. The plaintiff had a ditch by
which he took the water of the stream to his mine-works from
above the defendant's mill, when the defendant was not using
it for his mill. After this the plaintiff constructed a second
ditch above the former one, whereby the chief part of the
water of the stream was diverted from defendant's mill. The
court, in passing upon the two rights, concede the prior right
of water to the mill, and, in determining how much the ditch-
owner might divert, say : " The measure of the right as to
extent follows the nature of the appropriation, or the uses
for which it is taken. The intent to take and appropriate,
and the outward act, go together If, for instance, a
man takes up water to irrigate his meadow at certain sea-
sons, the act of appropriation, the means used to carry out
the purpose, and the use made of the water, would qualify
his right of appropriation to a taking for a specific purpose,
and limit the quantity to that purpose, or to so much as is
necessary for it. So if A erects a mill on a running stream,
this shows an appropriation of the water for the mill ; but if
he suffer a portion of the water, or the body of it, after
running the mill, to go on down its accustomed course, we
do not see why persons below may not as well appropriate
this residuum as he could appropriate the first use. The
truth is, ho only appropriates so much as he needs for the
given purpose He [the defendant] was entitled to all,
whenever all was necessary for the mill ; but whenever the
mill did not need or could not use it for its operations,
the defendant [plaintiff?] could use it for his purposes.
. ... It is enough to hold that this appropriation, accord-
ing to the finding of facts, was not an appropriation of all
this water as the property of the defendant, but only an ap-
propriation of so much as was necessary for the mill, and
1 Ortman v. Dixon, 13 Cal. 33.
Sect. 3.] USE OF WATER FOR MILLS. 823
that *tliG defendant, after the claim to this residuum [*255]
had attached hy the plaintiff's appropriation, could
not enlarge his right at the expense of the plaintiff's rights
already vested." "
The doctrine of the case is believed to be in harmony with
that already enunciated by the prior cases above cited. But
it has been stated more at large perhaps than otherwise ne-
cessary, because of the peculiarity of the local laws of that
State, whereby the common law, as to the rights of riparian
proprietors to the natural flow of the stream through their
lands, is essentially modified in favor of those carrying on
mining operations.
Another case illustrative of the application of the law of
California, was this. The plaintiff erected a dam on a
stream, by which he turned the water from its original bed,
for a considerable distance, for the purpose of working the
bed of the stream for minerals, between the points where the
stream was diverted, and where it again entered the original
bed. While things were in this state, the defendant went
several miles above the point of this diversion, and, by a
ditch, turned the water of the stream, and applied it at
works for mining purposes. After that, the plaintiff being
desirous of applying the water of the stream for mining pur-
poses and for irrigation, at a point considerably lower down
than that at which the water had been returned by the plain-
tiff into the original stream, brought an action against the
defendant on the ground that he had made a prior appro-
priation of it. But it was held that he had no right to the
water, as against the defendant, by reason of his appropria-
tion first made by his dam, since that was done merely to
divert the water from the bed of the stream so as to work the
bed altogether above the point where he now proposed to
use it.i
9. A leading case from the English reports, involving
some of the questions above suggested, is that of Mason v.
1 M'Kinny v. Smith, 21 Cal. 374.
324 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
Hill,^ decided in tlic King's Bench in 1833. The defend-
ant's mill, in that case, was erected in 1818, that of the
plaintiff in 1823. The owner of the land on which the latter
mill was erected had applied the waters of the stream for
more than twenty years before 1818 for watering his cattle
and irrigating this land. In 1818 the defendant diverted
from the stream a part of the water of a spring which had
previously flowed into it. And when, in 1823, the plaintiff
erected his mill, he applied to the same the water of the
stream that flowed over the defendant's dam, and that part
of the water of the spring which the defendant had not di-
verted, and also that of another spring that flowed into and
fed the stream. Soon after this the defendant changed the
site of his dam so as to divert, at all times, the water from the
plaintiff's mill. The court considered the question of prior
occupancy, and say : " The position that the first occupant of
running water for a beneficial purpose has a good title to it,
is perfectly true in this sense, that neither the owner of the
land below can pen back the water Jior the owner of the land
above divert it to his prejudice And the
[*256] owner of the land that 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 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 unap-
plied, and deprive him of it altogether by anticipating him
in its application to a useful purpose It appears to
us that there is no authority in our law, nor, so far as we
know, in the Roman law, 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 the
1 Mason v. Hill, 5 Barnew. & Ad. 1.
Sect. 3.] USE OF WATER FOR MILLS. 325
water therein," unless the same has been gained by prescrip-
tion or grant.
Tiic court, accordingly, held the defendant liable for con-
tinuing to divert the water of the spring, although he had
begun to do so before the plaintiff had erected his mill, and
they applied the same rule to the stream generally.
10. Regarded in its reference to a diversion of water, the
law of the case of Mason v. Hill would probably be adopted
as the law of this country, as it is in England. But the
rules which are to govern, in the mode of exercising their
respective rights to the use of water by the several proprie-
tors upon the same stream, are yet to be considered. Before
doing this, however, reference may be had to another some-
what leading case, in which the rights growing out of prior
occupancy of water are treated of. Ruffin, C. J., in Pugh v.
Wheeler,^ uses this language : " The defendants say, that
such one of the owners as may first apply water to any par-
ticular purpose, gains thereby and immediately the
exclusive right to that use of the water. That *is [*257]
true, in the sense that any other proprietor above
or below cannot do any act whereby that particular enjoy-
ment would be impaired, without answering for the damages
which are occasioned by the loss of the particular enjoyment.
Whereas, before the particular application of the water to
that purpose, the damages would not have included that
possible application of the water, but been confined to the
uses then subsisting. But to render the proposition, even
thus far true, the use supposed must be a legitimate one,
that is, it must not interfere with any previously existing
right in another proprietor ; for usurpation does not justify
itself. If one builds a mill upon a stream, and the person
above divert the water, the owner of the mill may recover
for the injury to the mill, although, before he built, he could
1 ru-h V. Wheeler, 2 Dev. & B 50, 55 ; Gould v. Boston Duck Co., 13 Gray,
442, 450; Kelly v. Natoma Water Co., 6 Cal. 105 ; Sin-eve v. Voorhees, 2 Green,
Ch. 25.
326 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
only recover for the natural use of the water as needed for
his family and irrigation
" There is, therefore, no prior or posterior in the use, for
the land of each enjoyed it alike from the origin of the
stream, and the priority of a particular new application or
artificial use of the water does not therefore create the right
to that use, but the existence or non-existence of that appli-
cation, at a particular time, measures the damages incurred
by the wrongful act of another in derogation of the general
right to the use of the water as it passes to, through, or from
the land of the party complaining. The right is not founded
in user, but is inherent in the ownership of the soil ; and
when a title by use is set up against another proprietor,
there must be an enjoyment for such length of time as will
be evidence of a grant, and thus constitute a title under the
proprietor of the land."
The court also, in another case in New York, Merritt v.
Brinkerhoffji declared the law to be, that the prior occupancy
of a mill-privilege by one upon a stream gave him no exclu-
sive right to the undisturbed use of the water.
[*258] *It will be unnecessary to dwell any longer upon
the cases in which the doctrine applicable to ques-
tions of precedence of right, arising from priority of occupa-
tion of water-power, is discussed, except as it may be to
illustrate the practical operation of the doctrine. But the
reader, by referring to other cases cited below, will find it
therein more or less prominently sustained.^
11. From the consideration that, so far as a property in a
1 Merritt v. Brinkerhoflf, 17 Johns. 306.
2 Heath v. Williams, 25 Me. 209, 216; Ingraham v. Hutchinson, 2 Conn.
584, 59\ ; Sherwood v. Burr, 4 Day, 244 ; Sumner v. Tileston, 7 Pick. 198,
20.3 ; Gould v. Boston Duck Co., 13 Gray, 442, 453 ; Cox v. Matthews, 1
Ventr. 237 ; Rutland v. Bowler, Palm. 290 ; Frankum v. Falmouth, 6 Carr. &
P. 529; Buddington v. Bradley, 10 Conn. 213, 219; Tucker v. Jewett, 11
Conn. 311, 323; Twiss i;. Baldwin, 9 Conn. 291, 306; Blanchard v. Baker,
8 Me. 253, 269 ; Shreve v. Voorhecs, 2 Green, Ch. 25 ; Thomas v. Brack-
ney, 17 Barb. 654 ; Davis v. Fuller, 12 Vt. 178 ; Hoy v. Sterrett, 2 Watts, 327 ;
Hartzall v. Sill, 12 Penn. St. 248.
Sect 3.] USE OF WATER FOR MILLS. 327
mill site or privilege is concerned, it is limited by the
extent of ownership of the land within which the fall of tlic
water is contained, and as the dividing line between the
upper and lower riparian proprietor may so divide the fall
in the stream that but one part can be advantageously
appropriated, it may sometimes happen that the effect of a
prior appropriation of water-power in such case by one may
interfere with another riparian proprietor enjoying what he
originally had an equal right to avail himself of. And this
will be found to have a more extensive application in those
States, where, by statute, one may go beyond the limits of
his own land in appropriating a water-power by a dam
erected wholly or in part upon his own land, and thus it
may seem to form somewhat of an exception to the general
rule, as the same has been stated above.^
12. Two things are to be considered in ascertaining the
manner and extent of the use to which the water of a
stream may be applied in operating mills thereon.
One *is its effect upon the land of other riparian [*259]
proprietors, the other is its effect upon other existing
mills, and a third is sometimes presented in cases where a
change is necessary, or has been made in the mode of
operating, or in the character of the mill.
13. It seems to be settled that a mill-owner has a right,
by means of his dam, to swell or set back the water of the
stream, in its natural state, to the line of the adjoining ripa-
rian proprietor, and to maintain his dam at that height,
although at times of freshets the water of his pond shall set
back on to the land of such proprietor. If it were not so,
it would not be possible to apply the whole power of a mill-
privilege arising from the descent of the water within the
land of the mill-owner.^ But by freshets is meant, not the
swells of water in the stream which ordinarily occur periodi-
1 M'Coy V. Danley, 20 Penn. St. 85; Burwell v. Hobson, 12 Gratt. 322;
Hendrick V. Cook, 4 Ga. 241, 257, 265 ; Cary v. Daniels, 8 Mete. 466, 477.
2 Monongahela Navigation Co. v. Coon, 6 Penn. St. 379, 383. See Domat,
B. 1, Tit. 12, § 5, Art. 4 ; Smith v. Agawam Canal Co., 2 Allen, 355.
328 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
cally at certain seasons of the year, by which the same is
raised above the ordinary state of the stream at other sea-
sons, but extraordinary rises in the stream ; and the lan-
guage of the court, in a later case than the one last cited, is :
" A flood is a different thing. When it does come, it is a visi-
tation of Providence, and the destruction it brings with it
must be borne by those on whom it happens to fall." And
they hold that a man may not erect his dam so high as to
set back water beyond his neighbor's line, in " its natural
and ordinary swellings in some seasons of the year." ^
And in Rex v. Trafford,^ it is maintained that no man
may change or obstruct the flow of the water of a stream
for his own benefit, to the injury of another, whether it be
in the ordinary state of water while flowing in a bounded
channel at all seasons, or the " extraordinary course
[*260] which *its superabundance has been accustomed to
take at particular seasons."
If a mill-owner flow back water so as to obstruct the natu-
ral drainage of land lying near, but not bordering upon the
stream, he may be liable, unless the obstruction arose from
a reasonable use of his own land or privilege, and what is a
reasonable use is a mixed question of law and fact.^
14. A question has been raised and discussed, in view of
the general principle above stated, whether any riparian pro-
prietor may have an action for damages against a mill-owner
for setting back the water of a stream beyond the line of
such proprietor, without showing some actual appreciable
damage thereby done to his land. The questions have
chiefly arisen where, though the water was not flowed back
above the banks of the stream upon the adjacent land, the
water of the current was deepened, and more water re-
mained therein than otherwise would have been found there
at a similar state of water in the stream.
1 M'Coy V. Danlcy, 20 Penn. St. 85, 89. See also, Burwell v. Ilobson, 12
Gratt. 322. See Strout v. Millhridf^e Co., 45 Me. 76.
2 Rex V. Trafford, 1 Barncw. & Ad. 874.
' Bassctt V. Company, 43 N. H. 578.
Sect. 3.] USE OF WATER FOR MILLS. 829
In Garrett v. M'Kie,^ the majority of the court of South
Carolhia held, that, in such a case, in order to recover, the
riparian proprietor must show some appreciable damage as
resulting from setting hack the water into the channel upon
his land. But a similar question having arisen in Georgia,
the court of that State disapproved of the doctrine of Gar-
rett V. M'Kie, and, after referring to several English and
American cases, maintain the broad doctrine that to flow
back water upon a man's land against his consent, whether
already submerged or not, is an injury, and that, in the
eye of the law, every injury imports a damage, for which
nominal damages at least are recoverable by a suit at law,
though he cannot prove an actual perceptible damage, and
this would extend as well to the owner of half as to the
owner of the whole bed of the stream.^ At a later period,
however, the court of the former State take occasion to re-
affirm the doctrine of Garrett v. M'Kie to this extent, " that
backing within the channel, from which no appreciable dam-
age results, is not of itself a legal injury which will sustain
an action. The proposition which thus we approve,
* results, we conceive, from the reasonable use of [*261]
water, which every one through whose land it flows
is authorized to enjoy, considered in connection with the
necessities of machinery, upon sluggish streams, and in a
flat country." ^
But in Ripka v. Sergeant, Gibson, C. J. says : " The pen-
ning back of water in the channel of a stream is an injury
to the freehold, though the banks be not overflowed." *
Where the dam of one mill set back water into the tail-
race of another, it was held to be a ground of action, whether
the tail-race was upon the upper mill-owner's land or that of
1 Garrett v M'Kie, 1 Eich. 444.
2 Hendrick r. Cook, 4 Ga. 241, 257, 265.
3 Chalk V. M'Alily, 11 Rich. 153, 161. See also Omclvany v. Jaggers, 2
Hill, So. C. 6.34.
* Ripka V. Sergeant, 7 Watts & S. 913.
330 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
another by the consent of the owner, and though no actual
damage could be shown to have arisen.^
15. The broad and general language in which courts have
spoken of what would or would not be the ground of an
action for theoretic injuries, without actual damage, occa-
sioned to the land of one man in a proper and reasonable
operation of the mill of another, has tended to leave this still
an open question, and, like many other questions as to the
use of water, it will remain so until courts will define, some-
what more accurately than some of them have hitherto done,
the qualifying limits they intend to apply to the particular
cases when making use of general propositions.
Thus it is said by Wright, J., in Waring v. Martin:
" Every owner of land over which a watercourse flows has a
right to use the water, but he must use it without inflicting
any substantial injury to another, or he is liable," which
seems to negative the idea of a mere theoretic injury.^
And in the cases cited below, it was held that one mill-
owner upon a stream, in order to have an action against
another mill-owner for an alleged injury done to the opera-
tion of his mill, must show that the injury was a practical
and perceptible one. It would not be enough that it was a
mere theoretical one.^
16. The above cases, it will be perceived, were between
one mill-owner and another, and do not necessarily
[*262] involve *a determination of the question between a
mill-owner and a riparian land-owner above him.
And the language of Hemphill, J., in Haas v. Choussard,
may be adopted as correct, that, i' Whether an action for
throwing back water will lie for merely nominal damages,
where there has been no actual injury, is not free from
doubt, though supported by American authorities." *
1 Graver i'. Scholl, 42 Penn. 67.
2 Warrin<,' v. Martin, Wii<,'Iit, 381.
8 Thompson v. Crocker, 9 Pick. 59 ; Cooper v. Hall, 5 Ohio, .320 ; Shreve v.
Voorhccs, 2 Green, Ch. 2.5 ; contra, Ripka v. Sergeant, 7 Watts & S. 9.
* Ilaas V. Choussard, 17 Texas, 590.
Sect. 3.] USE OF WATER FOR MILLS. SSI
But in Stout V. M' Adams, the court of Illinois held that no
one had a right to create an obstruction upon his own land,
so as to set back water upon the land of another above,
although created for the purpose of operating a mill ; nor
did it make any difference, in this respect, whether there
was a mill standing upon the upper proprietor's land or not.^
But where a riparian owner built a dam across a stream,
to create a fish-pond thereby upon his own land, but inter-
fered with the flow of the stream in no other way, it was
held to be a reasonable use of the water, and a mill-owner
below had no cause of complaint on account of it, either at
common law or under the statute as to mills in Massachu-
setts.2
17. It seems, however, to be well settled, that a mill-
owner may not enlarge the quantity of water flowing in a
stream from his mill through the land of a lower proprietor,
by turning a new stream, which never was accustomed to
flow into the same, into his pond, to increase the capacity of
his power or privilege. " The wrong consists," say the court,
in Tillotson v. Smith, " in turning any water upon the land
which does not naturally flow in that place It can
make no difference, if the water, wrongfully turned upon a
man's land against his will, flows in the channel of an ancient
stream, or in a course where no water flowed before, if
similar damage results." Nor would it be any justification
in the party Avho should thus turn the waters of a
*stream into the new channel, that the owner of the [*263]
land below was thereby actually benefited. No one
has a right to compel another to have his property improved
in any particular manner.^
18. But this does not extend to preventing a proprietor
upon a stream digging ditches, or doing other acts in the
proper cultivation of his land, though the effect of it is to
1 Stout V. M'Adams, 2 Scamm. 67.
'■^ Wood V. Edes, 2 Allen, 578.
3 Tillotson V. Smith, 32 N. H. 90, 95 ; Merritt v. Parker, Coxe, 460 ; Par-
dessus, Traite' des Servitudes, §§ 58, 88.
332 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
increase the quantity of water in the stream in ordinary
times.^
19. Before proceeding to the subject of tlie use of water,
as between mill-owners upon the same stream, it may be
remarked, that it seems now to be well settled, that, if one
occupies a mill-privilege upon a stream, but docs not appro-
priate and apply the whole power or water of the stream to
actual use, he leaves the unappropriated part open for occu-
pation by any riparian proprietor, in the same manner as if
no mill had been erected ; ^ however, the opinion of the ma-
jority of the court in King v. Tiffany ,3 and expressions in the
decision of Davis v. Fuller,* and Heath v. Williams,^ might
seem to conflict with this position.
The extent of the right to flow in such cases will be the
height to which a dam of the same height as that which has
been sustained for twenty years would flow, although some
part of that time, by leaking and want of repair, the dam has
not kept up the water to its original height. The owner of
the dam may repair it, and thereby keep up the water uni-
formly.^
[*264] *20. It should be remembered, then, that the
owner of every mill-privilege may, by the common
law, hold two relations to other owners of mills or lands upon
the same stream, namely, that of riparian proprietor of land
and that of a mill-owner. And, as it seems, he may, in the
first capacity, maintain an action at common law for acts
done by other mill-owners, for which he could not recover in
a suit as mill-owner. Thus, as riparian proprietor, he has a
1 Williams v. Gale, 3 Harr. & J. 231 ; Kauffman v. Greisemer, 26 Penn. St.
407 ; Martin v. Jett, 12 La. 501 ; Lattimore v. Davis, U La. 161 ; post, p. *354.
2 Mason v. Hill, 5 Barnew. & Ad. 1 ; Gary v. Daniels, 8 Mete. 466, 478;
Brown ;;. Best, 1 Wils. 174; Saunders v. Newman, 1 Barnew. & Aid. 262;
Daggel, J. dissenting.
2 King V. TiflTany, 9 Conn. 162.
* Davis V. Fuller, 12 Vt. 178.
6 Heath v. Williams, 25 Me. 216.
* Jaekson v. IIurrinRton, 2 Allen, 243 ; Cowell v. Thayer, 5 Mete. 253 ; Eay
V. Fletcher, 12 Gush. 200,
Sect. 3.] USE OF WATER FOR MILLS. 333
right to the iininterriiptcd natural flow of a stream, so far,
at least, as necessary for domestic purposes, for drinking,
washing, watering cattle, and the like, and, in some cases,
for those of irrigation. ^
21. As the owner of a mill-privilege, he has the right to
occupy the same, within the limits of his own land, by stop-
ping this flow by means of dams. And this right is as much
an element of property as any other quality of the land of
which it is an accident. In respect to any question of prior
appropriation, that must have regard to the quantum of
water, and not the quantum of the fall, since the latter could
only be augmented by subtracting from the fall belonging to
the proprietor above, by swelling back the stream upon him,
or by appropriating a part of the fall of the adjoining proprie-
tor below, by deepening the channel within his boundary,
and thereby carrying out the bottom on a level to some point,
in the inclined plane of the natural descent, lower than his
own line ; neither of which he has a right to do. But as the
fall in his own land is all his own, he loses no part of what is
left within that, by appropriating a portion only of the entire
fall at first.2
22. And it may be repeated, as a general proposition, that,
neither as a mill-owner nor as a riparian proprietor, has
any one a right to do any act in his own premises,
*which shall cause the water of a stream to flow back [*265J
upon either the land or the mill of a proprietor above.
And it was even held in Davis v. Fuller, that if, by reason of
a mill-dam, ice accumulates in the pond, and water is there-
by caused to be flowed back upon an existing mill to its ma-
terial injury, the owner thereby becomes liable in damages.
But this seems to be overruled and a more reasonable doc-
trine maintained in Smith v. Agawam Canal Co., where it
1 Evans v. Merrhveather, 3 Scamm. 492 ; Johns v. Stevens, .3 Vt. 303, 316 ;
Tyler v. Wilkinson, 4 Mason, 395, 403.
2 M'Calmont v. Wlutaker, 3 Kawie, 84, 90 ; Gould v. Boston Duck Co., 13
Gray, 442, 453.
334 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
was held that, if the lower dam, in the ordinary stages of the
water, do not throw back water upon the wheels of an upper
mill, the owner will not be responsible, though this is done
by the accumulation of ice when the stream breaks up, and
though the upper be an ancient mill.^
23. Corresponding to this, the prior occupant of a mill-
privilege, who owns the land upon both sides of the stream,
has a right to an unobstructed flow of the same below his
mill for the purpose of venting.) as it is called by the court,
the waters of his pond according to the natural descent
and course of the water. Nor can a subsequent occupant of
a mill-site below, back the water so as to deprive the first
proprietor of this natural descent and flow. But, in order to
set up this priority of right, he must own both sides of the
stream, or maintain his dam by the consent of the owners of
the side not belonging to him.^
24. It is competent for the owner of a mill-privilege, as
such owner, or as riparian proprietor, to change or deepen
the channel of a stream within his own premises, or the mode
of applying it to use, as often as he will, provided he re-
turn the water on to the land of the next proprie-
[*266] *tor at its accustomed point, and do nothing that
materially affects the enjoyment of the water by the
adjacent proprietors, according to their legal rights.^
25. Where two or more owners of mill-privileges upon
the same stream shall have occupied the same, as above
contemplated, with hydraulic works of art, they have each
a right to make use of the same in a reasonable manner,
having reference to a like right in the other, but subject
to the rights of the riparian proprietors upon the same
1 Cowles V. Kidder, 4 Fost. 364 ; Tyler v. "Wilkinson, 4 Mason, 395, 400 ; Gil-
man V. Tilton, 5 N. H. 231 ; Davis v. Fuller, 12 Vt. 178 ; Blanehard v. Baker,
8 Mc. 253, 2G6; Pugh v. Wheeler, 2 Dev. & B. 50; Hill v. Ward, 2 Gilm. 285 ;
Gary v. Daniels, 8 Mete. 466, 477 ; Smith v. Agawam Canal Co., 2 Allen, 355.
- Delaney v. Boston, 2 Ilarringt. 489 ; Bliss v. Rice, 17 Pick. 23.
3 Norton v. Valentine, 14 Vt. 239; Ford v. Whitlock, 27 Vt. 205; Stein v.
Burden, 29 Ala. 127.
Sect. 3.] USE OF WATER FOR MILLS. 330
stream, and, as will be more fully shown, if a question
arises in any given case what would be such a reasonable
use, it is to be referred to the decision of a jury. A large
proportion of the cases, where conflicting rights are set up
by such mill-owners to the use of water, will be found to
have been determined by the application of this broad rule
of what is a reasonable use in view of the circumstances of
each particular case.^ What a reasonable use of water may
be, in any given case, depends upon the subject-matter of the
use, the occasion and manner of its application, its object,
extent, necessity and duration, and the established usage of
the country, the size of the stream, the fall of water, its vol-
ume and velocity and prospective rise and fall, all of which
are important elements to be taken into account in deter-
mining the question.^
26. The mode and extent to which one mill-owner may
use and apply the waters of a stream, as between him and
another mill-owner, is not what would be reasonable for his
particular business, but what is reasonable, having reference
to the rights of the other proprietors on the stream, without
by such use materially diminishing it in quantity, or cor-
rupting it in its quality. If one requires more than this, he
cannot claim it as a natural right. The necessity of one
man's business is not to be made the standard of another
man's rights.'^
27. All the cases seem to concur in this, that no mill-
1 Gary v. Daniels, 8 Mete. 466 ; Evans v. Merriweather, 3 Scamm. 492 ; Beis-
sell V. SchoU, 4 Dall. 211 ; Chandlers. Howland, 7 Gray, 348 ; Johns v. Stevens,
3 Vt. 308, 316 ; Hendricks v. Johnson, 6 Port. 472 ; Gould v. Boston Duck Co.,
13 Gray, 442, 450 ; Pugh v. Wheeler, 2 Dev. & B. 50 ; Snow v. Parsons, 28 Vt.
459 ; Parker v. Hotchkiss, 25 Conn. 330 ; Davis v. Getchell, 50 Maine, 604 ;
Springfield v. Harris, 4 Allen, 494.
- Davis V. Winslow, 51 Maine, 297. In Shears v. Wood, 7 J. B. Moore, 345,
plaintiff was allowed to recover upon a count that the water did not run to the
plaintiff's mills as they were accustomed to have it, though not described as an-
cient mills.
3 Wheatley v. Chrisman, 24 Penn. St. 298, 302 ; Brace v. Yale, 10 Allen. 447 ;
s. c, 4 Allen, 393.
336 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
owner has a right to divert the waters of a stream,
[*267] and *thereby deprive a lower proprietor of the ben-
efit thereof.^ And, in one case, this was applied to
its utmost extent, although the diversion was made for the
purpose of enabling the mill-owner to repair his works.^
But this does not impugn the right of reasonably detaining
the water by such proprietor by shutting down the gates of
his mill.
28. But precisely to what extent the owner above may use
the water for manufacturing purposes, if he do not divert it
from its accustomed channel, does not seem to be very well
defined. In other words, how far the owner above shall be
allowed to use the water of the stream for mechanical and
manufacturing purposes, where such use may produce injury
to the owner below, does not seem to be very well settled by
any of the adjudged cases in England or this country. Each
case depends upon its own circumstances. " The question
of the reasonable use of the water by the mill-owner above,
depending as it must upon the size of the stream, as well as
the business to which it is subservient, and on the ever vary-
ing circumstances of each particular case, must be deter-
mined by the jury and not by the court." ^
29. Questions of this kind have often arisen, where the
owner of the upper mill, upon its first being put in opera-
tion, has shut down the gate and wholly stopped the water
till the pond could fill ; or has been obliged to shut down his
gate and detain the water to raise his pond to a sufficient
height to drive his works, and the lower mill has suffered by
reason of such detention. Such were the cases of Hartzall
1 Thomas v. Brackney, 17 Barb. 654; Snow v. Parsons, 28 Vt. 459; Newhall
V. Ireson, 8 Cush. 595 ; Sackrider v. Beers, 19 Johns. 241 ; Butman v. Hussey,
12 Me. 407 ; Jiuld v. Wells, 12 Mete. 504.
2 Van Iloesen i'. Coventry, 10 Barb. 518, 520.
8 Thomas v. Brackney, 17 Barb. 654, 656 ; Parker v. Hotchkiss, 25 Conn. 321 ;
Patten v. Munlen, 14 Wise. 473; Hayes v. Wuldron, 44 N. H. 584; Davis v.
Winslow, 51 Maine, 295.
Sect. 3.] USE OF WATER FOR MILLS. 337
V. Sill.^ and Hoy v. SteiTett,^ Iletricli v. Deadlier,^
and * Wheeler v. Alil,* all of which were decided by [*2G8]
the courts of Pennsylvania, and in all of which the
idea of precedence of right, arising from priority of occupa-
tion, is discarded. In the case of Hoy v. Sterrctt, the plain-
tiff's mill had been in operation more than thirty years,
■when the defendant erected one on the stream above him.
In working his mill, the defendant often detained the water
in his pond for two days and a night at a time, for which the
plaintiff brought his action. But the court submitted the
question to the jury, under the instruction that, " if they
believed the water was no longer detained than was neces-
sary for the proper enjoyment of it, as it passed through the
defendant's land, for the use of his mill, it was a damage to
which the plaintiff must submit."
The doctrine of this case was reaffirmed in Wheeler v.
Ahl, where the owner of an upper mill enlarged his works,
although to carry them he had to shut down his gate at
night, and not run his works till the next morning, whereby
the Avater from his mill did not reach the lower mill till
eight or nine o'clock in the day, and during the remainder
of the day more water was poured into the stream from the
upper works than could be used to advantage by the lower
mill.
In Hetrick v. Deadlier, the plaintiff's works were an
ancient grist-mill, the defendant's a modern saw-mill, on the
same stream. In operating his mill, the defendant some-
times detained the water from three to five days or more,
and, besides using the water for driving his mill, applied it
in irrigating his land. Besides this, he, at times, let out so
much water from his own as to flow the plaintiff's mill.
The court were urged to rule that such a detention must
1 Hartzall v. Sill, 12 Penn. St. 248.
2 Hoy V. Sterrett, 2 Watts, 327.
3 Hetrich v. Deadlier, 6 Penn. St. 32. Sec also Mabie v. Matteson, 17 Wis.
1 ; Springfield v. Harris, 4 Allen, 496.
* Wheeler v. Ah\, 29 Penn. St. 93.
22
338 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
necessarily be actionable, as being a violation of the plain-
tiff's rights. But they declined so to do, and submitted the
question to the jury, whether it was a reasonable
[*269] *detention of the water or not. " If he detained it
no longer than was necessary for his proper enjoy-
ment of it, the plaintiff cannot recover," unless, as the court
added in their instructions, the defendant detained the water
vexatiously or wantonly. And the whole court, in com-
menting upon and approving those instructions, refer, as a
test of what may be done, to " the reasonableness of the
detention, depending as it must on the nature and size of
the stream, as well as the business to which it is subservient,
and on the ever-varying circumstances of each particular
case."
But in a case in Indiana, the oldest of three mills, and
highest upon the stream, was the defendant's oil-mill ; the
lowest and next in age was the plaintiff's. After the latter
had been in operation fourteen years, the defendant erected
a saw-mill between the two, in which he used a different kind
of wheel from those in use in the other mills, and which re-
quired a great deal more water to work it. The stream did
not furnish a constant supply of water to run the mills, and
they had to be operated by " gathering heads." In conse-
quence of this erection and mode of operating the defendant's
saw-mill, the plaintiff" was not able to work his mill more
than half as much as before. The court held this detention
of water by the defendant unreasonable, and ordered it to be
abated, the wheel being unsuited to the stream. ^
A leading case upon this subject is that of Merritt v.
Brinkerholf,^ where the plaintiff had a flour-mill situate be-
low the defendant's rolling and slitting mill. The stream
was a small one, and, the defendant's dam being twenty-four
1 Dilling V. Murray, 6 Ind. 324.
2 Merritt v. Brinkcrhort", 17 Johns. 306, 322. See also Heath v. Williams, 25
Me. 209 ; Twiss v. Baldwin, 9 Conn. 291 ; Beissell v. Scholl, 4 Dall. 211 ; Run-
nels V. BuUcn, 2 N. II. 532 ; Hendricks v. Cook, 4 Ga. 241 ; Blanchard v. Baker,
8 Me. 2.53, 270.
Sect. 3.] USE OF WATER FOR MILLS. 339
feet in height, he stopped the entire waters of the stream,
more than an hour at a time, while he was heating
his iron, *and then let it out in such quantities as to [*270]
run over the plaintiff's dam and be wasted, and the
plaintiff's mill was stopped from half an hour to two hours
daily. The rule laid down by the court, as governing such
a case, was, that the upper mill might apply the water to the
best advantage, but not so as to render the lower mills on
the stream useless or unproductive. The law will so limit
this common right to use the water of the stream, that the
owners of the lower mills shall enjoy a fair participation of
it, although the upper mills may thereby sustain a partial
loss of business and profit. The upper mill must not use the
water in an unreasonable manner so as to be materially in-
jurious and destructive to the mills below. The jury found
for the plaintiff, and the court sustained the finding.
In Pitts V. Lancaster Mills ^ the defendants erected a mill
above the plaintiff's ancient mill, and, while filling their
pond, in order to start their own mill, stopped the water and
deprived the plaintiff of the use of it. But it was held to be
damnum absque injuria, since the right to do this, in a rea-
sonable manner, was incident to the property in the mill-
privilege of the defendant.
It is, accordingly, held as a general proposition, that the
owner of land over which a watercourse flows, is entitled to a
reasonable use of the water for a mill, provided his dam is of
a magnitude suited to the size of the stream and quantity of
water usually flowing therein. Nor will he be liable to the
owner of mills below for any injury arising to them from
such use, having reference to the general custom and usage of
the country in cases of dams upon similar streams.^ He may
not render a mill below useless, but must so use the water
as to give such lower mill a fair participation in the same.^
1 Pitts V. Lancaster Mills, 13 Mete. 156.
2 Springfield v. Harris, 4 Allen, 494 ; Davis v. Getchell, 50 Maine, 604 ; Ma-
bie V. Matteson, 17 Wis. 1 ; Davis v. Winslow, 51 Maine, 291 -293.
^ Patten v. Marden, 14 Wise. 473.
340 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
30. The subject was also considered by the court in the
case of Barrett v. Parsons,^ and in Tliurber v. Martin, ^ where
the rules to be observed in the management of mills upon a
stream are stated substantially to be, that those who are
lowest upon the stream must take the water subject to the
previous rights of those above them, to use and employ it
for their mills and works, and to do all that is necessary and
usual for the purpose of building dams, forming mill-ponds,
and erecting gates, and such other structures and apparatus
as may be convenient and proper. But the owners of the
upper mills are bound to use and employ the water in a
reasonable and proper manner, conformably to the
[*271] usages *and wants of the community, and not incon-
sistent with a like reasonable and proper use of it by
others on the same stream below.
So in Gould v. Boston Duck Co.,^ the court states, sum-
marily, the respective rights of two or more owners of mill-
powers upon a stream. They are not rights to the natural
flow of the stream, in the manner in which it originally run,
or, as if no mill were erected upon it, or to be worked by it.
A right to erect a dam and change the natural mode of the
flow of the current is incident to the right of applying it to
the working of mills, and this right is common to every ripa-
rian proprietor. Each must, therefore, exercise his own
reasonable right with a just regard to a like reasonable use
by all the others. In respect to the time and mode of hold-
ing up and letting down the water by mills, so far as it is
reasonably incidental to the use of the stream for mill pur-
poses, it is the right of the proprietor, and constitutes, in
part, the mill-privilege which the law gives him. As prior-
ity of occupation, in this respect, gives no priority of right
to the use of the stream, beyond the actual extent of such
occupancy, where an upper mill, though recent, in the rea-
1 Barrett v. Parsons, 10 Cusli. 367, 371.
2 Tliurber v. Martin, 2 Gray, 394.
3 Gould V. Hoston Duck Co., 13 Gray, 442, 453. See also Gary v. Daniels, 8
Mete. 4GG; Chandler v. Ilowland, 7 Gray, 348.
Sect. 3.] USE OF WATER FOR MILLS. 341
sonaWc and proper use of it, interrupts, in some measure,
the oj^eration of the lower mill, though an ancient one, the
owner of the latter is without remedy, even though it were
done in a low state of water in the stream, occasioned by
drought, and the upper mill-owner, in order to work his
mill, is obliged to Stop the natural flow of the water while
his pond is being filled.
The case cited seems to furnish a proper limitation to the
lano'uao-e of the courts in some of the cases, which assumes
DO '
that a mill-owner has, as incident to the same, the same
right, against another mill-owner, to the natural flow of the
stream as exists between successive riparian propri-
etors in *respect to their respective lands, indepen- [*272]
dent of any application of the water for purposes
of art. And among the cases where this appears to have
been assumed by the court as the law, are Davis v. Fuller,^
and King v. Tiffany.^
30 a. Mill-owners often construct dams at considerable
distances above their works, for the purpose of creating res-
ervoirs of water to be drawn for use when the condition of
the stream may require it. This often gives rise to ques-^
tions of some difficulty where there are other mill-owners
upon the same stream, especially if their mills are situate be-
tween the reservoir dam and the mill of the owner of such
dam. It was held that such a dam and pond came within
the principle of the Massachusetts mill acts, as to flowing the
lands of third persons.^
So the above cited case of Gould v. Boston Duck Co., was
one where the injury complained of arose from the mainten-
ance and management of a reservoir dam by the defend-
ants which was situated above the plaintiff's works. Simi-
lar questions came up in the case of Brace v. Yale, the facts
of which were substantially these. The plaintiff owned an
1 See ante, pi. 22 ; Davis v. Fuller, 12 Vt. 178.
2 King V. Tiffany, 9 Conn. 162.
3 Wolcott Co. V. Upham, 5 Pick. 292. J
342 THE LAW OF EASEMENTS AND SERVITUDES. [Cu. III.
ancient mill, and a reservoir had been maintained by him
for the benefit of this mill, about a hundred rods above it,
for over forty years. The plaintiff ordinarily opened the
gate of this reservoir in the morning, and, if no obstacle in-
tervened, the water reached his mill in about twenty min-
utes. Another owner, the defendant, erected a mill between
the plaintiff's mill and reservoir, and raised a dam which
stopped this water, often detaining it two hours and a half
to fill this new pond. When the gate of the reservoir was
closed no water flowed in the stream below, as it was a small
one, and when the gates of the middle dam were closed no
water flowed to plaintiff's mill until the new pond was
filled. Much water was wasted to the plaintiff, by the oper-
ations of the defendant's mill, because the same was not
wanted for the plaintiff's mill. But the defendant used no
more than was advantageous for working his mill. Some
days, the plaintiff's mill was, in this way, interrupted half
the time. The court held that the plaintiff, by this long user,
management, and enjoyment of the water in the reservoir, in
stopping the flow of the stream except when the same was
let out by gates, and only in such quantities as he needed
from time to time for operating his mill, acquired a right
which was adverse to the original rights of the riparian pro-
prietor's to the natural flow of the stream, and which he
might claim by prescription. The mere erection, however,
of a dam across the stream for raising a head of water to
work a mill, and the cutting of sluices and waterways for
conducting the water to and from such mill, would not be
deemed adverse to the other riparian proprietor, although
it might, in some measure, change the natural flow of the
water in the stream, or cause a temporary obstruction there-
in, because this is not inconsistent with the rights of such
proprietors. Nor would the erection of a reservoir dam and
the stopping of the water thereby, until it had filled, be ad-
verse to the rights of such proprietors, if the water was then
suffered to resume its accustomed flow, because the obstruc-
Sect. 3.] USE OF WATER FOR MILLS. 343
tioiis thereby occasioned, would be slight and temporary, and
not inconsistent with the rights of proprietors below. But
by this long adverse enjoyment by the plaintiff, the riparian
proprietors below the reservoir dam lost the right to the nat-
ural flow of the stream, as well as the right to control the
quantity of water or time of its passage, except in subordina-
tion to the plaintiff's acquired rights, and in a way not to
interfere with the accustomed working of his mill and ma-
chinery. He could no,t, therefore, lawfully hold back the
water flowing from the reservoir for the purpose of filling and
refilling his pond, nor let it down in such quantities that the
plaintiff could not appropriate it to the operation of his mill,
and thereby cause the water to run to waste. The circum-
stance which chiefly distinguishes this from the case of
Gould V. Boston Duck Co., is the prescriptive rights wliich
had been acquired by user in the present case, in favor of
the reservoir.^
In one case the owner of a stream and its banks erected a
dam and grist-mill thereon, and sold the mill and privilege
to J. S. He then erected another dam above this, across the
stream, with a design to erect a mill at one end of the same.
He then sold to thg plaintiff one half of this dam, with a priv-
ilege to erect and carry on tan works on the bank, but sub-
ject to a preferred use of the water for the intended mill
upon this dam. He then sold his property in this dam and
privilege to J. D. ; J. D. then purchased the lower dam and
grist-mill of J. S., through whom they came to the defend-
ant. No mill was erected by any of these owners on the end
of the upper dam opposite to the plaintiff's tan works ; and
in times of low water the defendant drew water from the
upper dam by a gate therein which had the effect to inter-
rupt the use of the plaintiff's tan works. It was held that
the defendant, as owner of the prior mill, might, if the upper
dam stopped the water and prevented its reaching his mill,
1 Brace r. Yale, 10 Allen, 441. See Pitts v. Lancaster Mills, 13 Mete. 156 ;
Perrin v. Garfield, 37 Verm. 204 ; ante, p. *94.
344 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
draw the water from the upper pond, if necessary, for work-
ing liis mill, and that his owning the upper dam with the
plaintiff made no difference in respect to his rights as owner
of the lower mill.^
31. From the nature of property in the use of water, it
may often happen that there may be a community of in-
terest and ownership in a mill-privilege, although the own-
ership of the land may be separate, as where two adjacent
riparian proprietors, each owning to the thread of the
stream, have a water-power in the water of such stream by
reason of its descent along the channel between where it
enters upon and where it leaves their premises. The privi-
lege becomes operative and valuable by the two joining
in occupying it by a dam across the stream ; in which case
they become tenants in common of the water-power, al-
though each must apply it upon his own individual land.
In such case, if either uses the water in an unreasonable
manner, to the injury of the other, he would be liable
therefor, since neither can wantonly waste the water to
the prejudice of the other. Each owner, in such case,
would be bound to keep his part of the dam in repair, so
long as ho uses the water of the pond, and if either ceases
to use it, the other may keep the dam in suitable repair.^
Though a water-power, that is, a force or power caused by
its flow and fall in a stream, is a thing incapable of partition
by metes and bounds like land, it may, nevertheless, be the
subject of joint ownership, wherein any one proprietor may
become entitled to any given proportion of the whole power
or flow of the water.'^ And whenever two persojis draw
1 Miner v. Gilmore, 12 Moore, P. C. 131.
2 Runnels v. Bullcn, 2 N. H. 532, 538 ; Carver v. Miller, 4 Mass. 559 ; Con-
verse V. Ferre, 1 1 Mass. 325 ; Gwinneth v. Thompson, 9 Pick. 31 ; 2 Dane, Abr.
721 ; Loring v. Bacon, 4 Mass. 575 ; Doane v. Badger, 12 Mass. 65 ; Campbell
V. Mesier, 4 Johns. Ch. 334; Mumford v. Brown, 6 Cow. 475; Binney's case, 2
Bland, Ch. 99, 114 ; Bliss v. Rice, 17 Pick. 23, 36. Sec Pratt v. Lamson, 2 Al-
len, 275, 286.
2 Monroe v. Gates, 48 Maine, 467.
Sect. 3.] USE OF WATER FOR MILLS. 345
"water for their mills from the same dam, and neither has
any peculiar or precedent right by grant or prescription,
each may contiuuc to use the water, whatever the effect may
be upon tlie other.^
It has accordingly been settled, that, if either mill-owner
upon such common mill-dam have occasion to repair his mill
standing upon his own land, or the flume or works thereof,
he may do so, and if he exercises reasonable care and
diligence in prosecuting the work, he will not be
*responsible to the other owner of the privilege, [*2T3]
though by accident he sustains damage while such
repairs are being made. Nor would the rule be different
even if the privilege had been so far divided, as it might be,
between them, that each had the exclusive use of the entire
power every alternate six months.^
When a partition has been made of a water-power, by as-
signing to each of two or more joint owners a right to occupy
it exclusively for a certain period, or it has been enjoyed in
that way till a partition may be presumed, the one who for
the time being has a right to such use may divert the waters
of the pond for irrigation upon his own land, but not to con-
tinue such diversion while another of the cotenants has a
right to occupy the mill/^
The partition above spoken of must have been by mutual
arrangement and grant between the several owners in com-
mon. At common law, there was no process for dividing in-
corporeal hereditaments like a joint water-power by what
answers to metes and bounds. But, by statute in Massachu-
setts, partition may now be made by a process in equity.*
Where there were a grist-mill and saw-mill occupying a
mill-privilege upon one dam belonging to the same person,
and the only mills upon the privilege, and he granted one by
1' Brown v. Bowen, 30 N. Y. 538.
2 Boynton v. Kees, 9 Pick. 528 ; Bliss v. Rice, 17 Pick. 23, 38.
3 Bliss V. Rice, 17 Pick. 23.
* Miller v. JNIiller, 13 Pick. 237 ; Adam v. Briggs Iron Co., 7 Cush. 361 ; De
"Witt V. Harvey, 4 Gray, 496, 499 ; Gen. Stat. c. 136, § 77.
346 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
the name of the saw-mill, for instance, it passed the propor-
tion or share of the water in the river belonging to such mill,
which was such.proportion of the whole right in the brook as
the water used to drive the mill conveyed bore to that used
by the other mill. But had there been several mills upon
the stream of different kinds, all drawing from the same
level, and. there was only sufficient water to supply the
power necessary to drive each mill, a grant of one of these
mills would carry only the mill and the water actually neces-
sary to drive it.^
32. The rights of the respective mill-owners upon a
stream, in respect to the diversion thereof, are the same
whether the stream be a public or private river. In neither
case may the owner of an upper mill divert the water of the
stream, and discharge the same into the current
[*274] again *below the mill of a lower owner.^ Nor may
a lower mill flow back upon an upper one, though
erected upon a stream which is a highway, and, for main-
taining his dam across it, he may be liable to indictment
for a nuisance. If liable for the nuisance, it is to the
public only, and his rights as a mill-owner may not be
infringed by another mill-owner upon the stream.^ And
it was held to make no difference, in respect to acquir-
ing a right, by prescription, to flow the land of another, that
the mill by which it was done stood upon an embankment or
dam formed by a highway across a navigable stream."^
33. There are some cases where a lower mill may acquire
the benefit of expenditures laid out by the upper mill-owner,
without being liable to contribute therefor. Thus if the up-
per owner increase the capacity of the stream for mill pur-
poses, by enlarging the extent of his pond, or the reservoirs
which supply his mill, the lower one has a right to avail him-
self of the benefit of this, as something incident to the owner-
1 Crittenden v. Field, 8 Gray, 621.
'■^ Sackrider v. Beers, 10 Johns. 241.
8 Stiles V. Hooker, 7 'Cow. 266.
* Borden v. Vincent, 24 Pick. 301.
Sect. 3.] USE OF WATER FOB MILLS. 347
ship and situation of his milL Nor would he be liable to any
land-owner above the upper mill, whose land was damaged
by such increased flowing.^ Nor could the upper mill-owner,
after having increased the quantity of water in the stream by
such additional flowing, erect works between the upper and
lower mills, upon his own land, and thereby divert water
from the stream, though it did not exceed the quantity
which he had thus added to the natural flow of the stream.^
34. In addition to what has been said upon the subject of
diverting water from a stream in its connection with the
rights of mill-owners, it may be stated, that it mat-
ters not how or *for what purposes such diversion [*275]
is made, nor whether it be of the waters of the prin-
cipal stream, or a remote or inconsiderable branch and feeder
thereof, provided such feeder be itself a running natural
stream, even though it flow underground, if in a well-defined
channel. Thus where one dug a large well upon his own
premises, into which the waters of a running stream, which
supplied in part a mill below, were withdrawn therefrom by
penetrating through the earth into the well, and were then
pumped into another channel and not returned to the origi-
nal stream, and it was known when he dug the well that
such would be the effect, he was held liable to the mill-owner
for such diversion. But the reader will keep in mind the
distinction there is between such a case as this, and those
cases to be hereafter noticed, where waters percolating
through the earth into streams have been prevented from
reaching them by excavations made by riparian proprietors
on their own lands, though to the injury of mills upon the
streams.^
1 Tourtellot v. Phelps, 4 Gray, 370, 376.
- Eddy V. Simpson, 3 CaL 249. But see Whittier v. Cocheco Mg, Co., 9 N.
H. 4.54 ; post, pL 46, 53.
3 Dickinson v. Grand Junct. Canal Co., 7 Exch. 282, 301 ; post, p. *370 ; Broad-
bent V. Rarasbotham, 11 Exch. 602 ; Wheatley v. Baugh, 25 Penn. St. 528; Ar-
nold V. Foot, 12 Wend. 330 ; Dudden v. Guardians of Poor, &c., 1 Hurlst. & N.
627; Eawstron v. Taylor, 11 Exch. 369; Evans v. Merriweather, 8 Scamm. 492.
Whether and how far a mill-owner, who draws his water from a natural pond,
348 THE LAW OF' BASEMENTS AND SERVITUDES. [Ch. III.
35. Keeping in mind what rights are incident to the own-
ership and use of mills, from the nature of such property,
the reader will be prepared to understand what are meant
by easements and servitudes as applicable to mills and mill-
privileges. And it may be stated, in general terms, that if
any land or mill owner shall claim a right to a different or
exclusive use of a stream, or to use its waters in a manner
more injurious to other owners upon the same stream than
those which have been above enumerated, he can only main-
tain it by establishing a claim of easement in favor of his
■ own as a dominant estate, over and unon that of
[*276] the other *owner in reference to which it is to be
exercised as the servient estate ; and this right of
easement the dominant estate must have acquired at some
time from the servient one, by grant, or its equivalent, pre-
scription.^
No proprietor of land on the same stream has a right, at
common law, to divert the water or change the use of it to
the injury of any other proprietor, unless such right has
been acquired by grant or prescription.
Where the mill-owner has, in fact, exercised the right of
raising or diverting the water by keeping up his dam and
flowing the land of another for a period of twenty years,
without objection or claim of damages, it is evidence of a
right so to use the water as acquired by prescription or
grant. But it is equally well settled by the authorities, that
if any riparian proprietor has, by means of a dam, made a
special use of the water by penning it up, and throwing it
back upon a proprietor above, or holding it back from the
proprietor below, or by diverting it, and has so used the
may take the ice tliat forms thereon, or prevent others from doing it, for use or
Bale, was left unsettled in the case of Cummings v. Barrett, 10 Cush 189.
1 Wright V. Howard, 1 Sim. & S. 190; Arnold v. Foot, 12 Wend. 330, 333 ;
Brown v. Best, 1 Wils. 174; Murgatroyd v. Robinson, 7 Ellis & B. 391 ; Johns
V. Stevens, 3 Vt. 308, 316; King v. Tiilany, 9 Conn. 162, 169; Gary v. Daniels,
8 Mete. 466, 479 ; Shreve v. Voorhecs, 2 Green, Ch. 25 ; Cowell v. Thayer, 5
Mete. 2.53.
Sect. 3.] USE OF WATER FOR MILLS. 349
water without resistance or opposition from other proprietors
for the term of twenty years, he thereby establishes a right
so to continue to use it by way of prescription or presumed
grant.^
36. In briefly considering what rights to water-power, in
connection witli mills, may have been granted or acquired
by use, rather by the way of illustration than with a view of
anything like a general discussion of how easements may be
acquired, which has been considered in a former part of this
work, it may be stated, that questions have sometimes been
made, whether that which is granted is a right to use
*such a measure or quantity of power for a specific [*277]
purpose, and none other, or, by naming the purpose
for which it is conveyed, it is made a measure of the quan-
tity that is granted, but with liberty to use it for such pur-
poses as the grantee sees fit.
As a general thing, where there is a grant of sufficient
water-power to carry a grist-mill or a cotton-factory of such
dimensions, and the like, it is construed by courts to be the
quantity and not the purposes of the power granted that is
meant. And yet it is competent to restrict the grant, as is
often done, to the use of the power for some specific pur-
pose or kind of business, in which case any different use
would be against right.
These questions may arise either in cases of grants, or
reservations, and, it will be observed, the cases are not
those where land, with a stream of flowing water, is grant-
ed, or reserved, but a right to draw water or use a water-
power independent of the ownership of the bed of the
stream.
Thus where there was a grant of sufficient water-power to
carry a grist-mill and a cotton-factory with not more than
five thousand spindles, it was held to be a mere measure or
1 Cowell V. Thayer, 5 Mete. 253; Bolivar Mi;. Co. v. Neponset Mg. Co., 16
Pick. 246 ; Williams v. Nelson, 23 Piek. 141 ; Buddington v. Bradley, 10 Conn.
213; Baldwin v. Calkins, 10 Wend. 167.
350 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
description of the quantity granted, and not the use to which
it must be applied.^
In the case of Tourtellot v. Phelps, the grant was of " a
privilege to draw water sufficient to carry a water-wheel,
well constructed, with twelve feet head and fall, for two
common blacksmith's bellows," and was held to be a meas-
ure of power. But in Ashley v. Pease, a fulling-mill
[*278] and other *mills were standing upon the grantor's
land, and his grant was of a piece of land, with a full-
ing-mill standing thereon, with a right to draw so much
water as may be necessary to carry and supply the fulling-
mill " which now stands or may hereafter stand on the same
spot," with a provision that when there was not a sufficiency
of water, &c., the grantee was to draw, &c., " for the use of
the said fulling-mill or mills, twelve hours in the twenty-
four," &c. It was held to be a limited grant of water to be
applied to the use of a fulling-mill alone.
And yet courts always incline to construe such grants as
limiting or measuring the quantity of power, rather than de-
fining and restricting the uses to which it may be applied.
Thus the grant of land, with the privilege of water to turn
the fulling-mill mentioned in the deed, when the same is not
wanted for carding wool, reserving water for carding-ma-
chines and fulling-mill, was held to be a measure of power,
and not a restriction as to the purposes for which the water
should be used, and had reference to the mills then in ex-
istence, and the use then being made of the water when the
deed was made.^
1 Bigelow V. Battle, 15 Mass. 31.3; Tourtellot r. Phelps, 4 Graj-, 370; Ashley
V. Pease, 18 Pick. 268; Hurd v. Curtis, 7 Mete. 94, 111; Whittier v. Cocheco
Mg. Co., 9 N. H. 454 ; Cromwell v. Selden, 3 Comst. 253 ; Bardwell v. Ames,
22 Pick. 354 ; Atkins v. Bordman, 2 Mete. 470 ; Rogers v. Bancroft, 20 Vt. 250 ;
Adams v. Warner, 23 Vt. 395, 410; Rood v. Johnson, 26 Vt. 64, 72. This is
very clearly and satisfactorily illustrated and explained in an able opinion by
Merrick, J., in Pratt v. Lamson, 2 Allen, 275, 283 ; Wakely v. Davidson, 26 N.
Y. 387 ; Dewey v. Williams, 40 N. H. 227 ; Blanchard v. Baker, 8 Maine, 253 ;
Johnson v. Rand, 6 N. II. 22 ; Kaler v. Beaman, 49 Maine, 208 ; Deshon v.
Porter, 38 Maine, 289 ; Dc Witt v. Harvey, 4 Gray, 489.
■-i Wakely v. Davidson, 26 N. Y. 387, 394 ; Borst v. Emjiic, 1 Seld. 33 ; Olra-
stead V. Loomis, 6 Barb. 152, 159; Fisk v. Wilber, 7 Barb. 395, 402.
Sect. 3.] USE OF WATER FOR 5IILLS. 351
The case of Shed v. Leslie^ was similar in principle to
that of Ashley v. Pease, with the additional circumstance
that the habendum in the deed was, " so long as he (the
grantee) or they shall carry on clothiers' business, in or near
said place," &c. The grant was held to be restricted both
in the quantity and purposes of the power granted.
The case of Garland v. Hodsdon '^ may also be referred to
as an instance of a limited power and use reserved, where
there had been a grant of land upon a stream, with part of
a dam across the same, with the right and privilege in the
dam and stream to take water sufficient for one fulling-mill.
The deed " reserved for the use of the grist-mill, or such
other grist-mill as may be erected at the place where the
grantor's mill then stood, the right at all times to take water
sufficient for two run of stones." It prohibited the grantee
from taking the water " when the same shall be wanted for
the grist-mill," &c. It was held to be a grant of so much
power as would carry one fulling-mill, and which the gran-
tee might use as he pleased. But the reservation was a lim-
ited one, to be applied only for the use specified, namely, a
grist-mill.
So where there was a grant of a parcel of land and
" a water-privilege for tanning purposes in all its various
branches, which privilege is to come out of the grist-mill
dam " which belonged to the grantor, it was held to be lim-
ited and restricted to the uses designated in the grant.'^
Where there was an indenture between several parties,
carving out to each interests in a joint water-power, giving
to one the right to draw so many feet, and another
so *many feet, and so on, with a provision that, if it [*279]
should be insufficient at any time to supply so much
water, each was to share in the above i^i'oportions in what
there was ; it was held not to be a grant of a specific power,
1 Shed V. Leslie, 22 Vt. 498.
2 Garland v. Hodsdon, 46 Me. 511.
8 Dcshon r. Porter, 38 Maine, 289.
352 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
but a grant of a certain proportion of the entire power, meas-
ured by tlie respective quantities mentioned.^
87. If the owner of land on one side of a stream grant to
the owner upon the opposite side a right to extend a dam
across the river upon his bank, it is primd facie a grant
thereby of tlie sole ownership of the water-power thereby
created, unless the deed contain restrictions in that respect.
And, in the absence of any such deed, a user by one of the
owners of the entire water-power for the requisite length of
time gives him a prescriptive right to enjoy the same. Nor
does the fiict that he has during this time used it for the
purposes of carrying a saw-mill raise any presumption that
his right is limited to such a use.^
So if one of two owners of a water-power, having separate
mills upon opposite sides of the stream, exercise the right of
the first use of the water at his mill, when there is not suffi-
cient for both, for the term of twenty years, he will thereby
acquire a precedence in favor of his own mill, which will
make it, as to the other mill, the dominant, and the latter
the servient estate.^
So where the owner of land upon one side of a stream
maintained a dam across it, resting it upon the land of an-
other upon the opposite side, and enjoyed and maintained
the same for twenty years, it was held to be no evidence that
he owned the entire water-power or control of the water at
that point. The maintenance of a dam in a particular mode,
or the user of the water in a particular way for twenty years,
is evidence of a grant of a right to build and maintain just
such a dam and to make just such a use as have thus been
continued for that time. The use limits and defines the ex-
tent of the rights. If, therefore, there be a surplus of water
in such a case, the owner of the land upon the bank on
which the dam rests, might draw it and use it for carrying
1 Bardwcll v. Ames, 22 Pick. 354.
2 Bliss V. Hicc, 17 Pick. 23.
8 Rogers V. Bancroft, 20 Vt. 250.
Sect. 3.] USE OF WATER FOR MILLS. 353
a mill upon his own premises if lie do not interfere with the
enjoyment of the right already acquired by the owner of the
dam.i
38. In determining what would constitute an easement in
another's land, in respect to the use of water, which may be
acquired by grant or adverse use, it may be stated, generally,
in accordance with what has before been said, that whatever
would constitute a nuisance or injury by one to the enjoy-
ment or use of running water by another, may grow into a
right on the part of him who shall cause such nuisance or
injury, if done in the occupation of his own premises as a
dominant estate in a particular manner, for twenty
years, *or the period of prescription fixed by the [*280]
laws of the State in which the premises are situated.
Nor is it necessary that the use should be exercised in pre-
cisely the same form during the whole of this period, pro-
vided it be adverse, exclusive, and under a claim of right,
and it be acquiesced in by the other party. If it is substan-
tially the same mode and extent of use, it will be sufficient.^
And in applying this doctrine to the case of two mills,
where the dam of the lower one, which had been in opera-
tion eighty years, was raised so as to flow back upon one
that had been in operation forty years, the court of Con-
necticut held that the upper mill, having enjoyed the use of
the water in a particular manner for fifteen years, the period
of prescription in that State, had acquired a right to such
enjoyment, with which a lower mill, though more ancient,
might not interfere. Although Gould, J., in a dissenting
opinion, insisted that such enjoyment could not have been
adverse unless the other owners upon the stream had had
occasion to exercise their rights, and had forborne so to do,
1 Buruham v. Kempton, 44 N. H. 90.
2 Belknap v. Trimble, 3 Paige, 577, 605 ; 3 Kent, Comm. 442 ; Bealey v. Shaw,
6 East, 208 ; Pugh v. Wheeler, 2 Dev. & B. 50 , Ingraham v. Hutchinson, 2 Conn.
584 ; Esling v. Williams, 10 Penn. St. 126 ; Watkins v. Peck, 13 N. H. 360 ; Johns
V. Stevens, 3 Vt. 308, 315; Lapham v. Curtis, 5 Vt. 371, 380; Shreve v. Voor-
hees, 2 Green, Ch. 25 ; Sherwood v. Burr, 4 Day, 244. ^
23
354 THE LAW OF EASEMENTS AND SERVITUDES. ; [Cn. III.
and had acquiesced in the exercise of the right by the other
party.^
39. But a right on the part of a mill-owner, acquired by
prescription, to flow back water, and control the stream for
the use of his mill, gives him no right to prevent a riparian
proprietor above from cultivating and making improvements
upon his land, or using the waters of the stream for that
purpose, unless he thereby sensibly affects the rights of such
mill-owner in the use of the water, and works an injury to
his mill.^
[*2S1] *40. Nor does a mill-owner acquire any prescrip-
tive rights in respect to the user and enjoyment of
water by another mill, if the user by the first, though long
continued, was no invasion of the rights incident to the
second.^
41. But a proprietor upon a stream may, by adverse user
and enjoyment, acquire a right to divert the water of a
stream to the injury of mill-owners and riparian proprietors
below.* And it is even stated in one case, that " an absolute
right to a watercourse may be acquired by an uninterrupted
possession, use, and occupation, claiming right thereto ad-
verse to all others." ^
42. So one may acquire a right by prescription to flow the
land of another by means of a dam or obstruction in the
stream upon his own land.*^ And, because a right to create
a permanent obstruction in a stream and watercourse may
be acquired by user, it was held that one who had a right to
a watercourse for purposes of navigation, might maintain an
1 Ingraham v. Hutchinson, 2 Conn. 584, 592, 594.
2 Shrevc v. Voorhees, 2 Green, Ch. 25. See Bardwell v. Ames, 22 Pick. 354,
35G.
3 Parker v. Ilotchkiss, 25 Conn. 321, 330.
* Arnold v. Foot, 12 Wend. 330 ; Wright v. Howard, 1 Sim. & S. 190 ; Ma-
son V. Hill, 5 Barnew. & Ad. 1 ; Newton v. Valentine, 14 Vt. 239 ; Bealey v.
Shaw, 6 East, 208 ; Campbell v. Smith, 3 Halst. 140 ; Middleton v. Grcgorie, 2
Rich. 630.
'" Rogers v. Page, Brayt. 169; s. c, Ibid. 201.
S Uurlbat v. Leonard, Brayt. 201.
Sect. 3.] USE OF WATER FOR MILLS. 355
action for creating an obstruction therein, altliougli he had
suffered it to become clogged by the deposit of mud in it,
and to remain so for sixteen years.^
So one may acquire a prescriptive right to foul and corrupt
the waters of a stream, while carrying on a business upon its
banks which has that effect, as is the case with that of tan-
yards, working of ores or minerals, and various kinds of
manufactures, and chemical works.'-^
*So where the owner of an upper mill had enjoyed [*282]
the privilege of throwing cinders and scorias, created
in his business, into the stream, which floated down the
same and filled it up so as to hindcT the operation of a lower
mill, and had done this adversely to the lower mill for more
than twenty years, reckoned from the time when it began to
be injured thereby, it was held that a right to continue the
same was thereby acquired in favor of such upper mill/^
The same rule substantially holds in cases where there is
necessarily a greater or less deposit of foreign substances in
a stream, when using its waters for purposes of art, such as
saw-dust from a saw-mill, bark from a tan-yard, soap from a
manufactory, and the like. So far as this is reasonable, it
may be done with impunity, though it occasions some loss or
inconvenience to the owners of the mills or lands below. If
it essentially impairs the use of the water below, it would be
deemed to be unreasonable and unlawful. This may, more-
over, depend upon the size and nature of the stream ; for
what would be a serious injury upon one, might be of imma-
terial consequence upon another.* The question in each
case is, whether the acts complained of were done in the
reasonable use of the stream, and in determining this, the
jury should consider the necessity or importance of the right
1 Bower v. Hill, 1 Bing. N. C. 549. See also Ilenarick v. Cook, 4 Ga. 241, 261 .
- Moore v. Webb, 1 C. B. n. s. 673 ; Wright v. Williams, 1 Mees. & W. 77 ;
Carlyon v. Levering, 1 Hurlst. &N. 784 ; Wood v. Sutcliffe, 8 Eng. L. & Eq. 217.
8 Murgatroyd v. Robinson, 8 Ellis & B. 391 ; Ingrahara v. Hutchinson, 2 Conn.
591 ; per Could, J. See Carlyon v. Lovering, 1 Hurlst. & N. 784.
* Snow V. Parsons, 28 Vt. 459.
356 THE LAW OF EASEIVTENTS AND SERVITUDES. [Cn. III.
claimed so to discharge the waste, as well as the extent of
the injury likely to be caused to the other party. ^ But a
right thus to foul or encumber a stream may be acquired to
any extent by an adverse user for the requisite period of
time.^
One has no right to use the water of a stream so as to fill
it or clog it with foreign or noxious matter which would ma-
terially interfere with the use of the water below. In this
case the upper works were a tan-yard, from which bark, hair,
and filth were thrown into the stream and carried to the
plaintiff's mill below.^
43. Corresponding to the right which may be gained by
adverse user, to increase the head of water at one's mill by
raising the pond thereof so as to flow the land of another, is
that of increasing the fall by deepening the bed of the stream
below the mill and beyond the line of the mill-owner's land.
If, by doing this, and so placing his wheel as to make use of
such increased fall, he shall have enjoyed the benefit thereof
the requisite period of time, he may acquire a right
[*283] to continue it as a servitude on *the lower estate, and
an easement, in respect to which his is the dominant
estate.*
44. Partly from the necessity there is, in order to make
use of a mill-privilege, that the water used in operating
a mill should flow freely from the same, and partly from
its ordinarily being incident to the ownership of an ease-
ment that the same should be kept in a condition to be
used by the owner of the estate to which it belongs, it
follows that a mill-owner, whenever it is necessary to clear
out the tail-race or channel by which the water is dis-
charged from his mill, may do so, though, in order to ac-
complish it, he is obliged to go upon the land of another,
1 Veasie v. Dwinell, ."iO Maine, 490.
'•^ Jones V. Crow, 32 Pcnn. St. 398, 406 ; ante, p. *219 ; Hayes v. Waldron, 44
N. 11. 58.'j.
8 Houser v. Hammond, 39 Barb. 89 ; post, p. *400.
* Towiiscnd V. M'Donald, 14 Barb. 460.
Sect. 3.] USE OF WATER FOR MILLS. 357
doing no more injury to such proprietor's land than is neces-
sary.^
45. So if there be an embankment in another's land, by
means of which the water is retained in a mill-pond, and
the same break away or require repairs, by reason of the
lawful use of the waters of the pond, the mill-owner may
go upon the land where such embankment stands and re-
pair it.
But if he had broken the same by raising his head of
water higher than he had a right to do, he could not justify
going upon such land to repair the embankment.^
46. When a right to use or apply water, in any particu-
lar manner, or to a certain extent, has been acquired, either
as incident to the land, or by grant or prescription, it will
not be lost or impaired by the mere change in the mode
of using it, provided such change do not materially affect
the rights of other persons. Otherwise there could be no
improvements made in the application of machinery
*or the useful arts. The question in such cases is, [*284]
whether the alteration is of the substance or the
mere quality of the thing.-^ One of the cases illustrating this
point is Hale v. Oldroyd,"* where one for agricultural pur-
poses had acquired by long usage a right to receive the flow
of certain surplus water of a stream into a pond in his land,
and having filled that, dug three small ones. The proprie-
tor above stopped the flow of the water to these, but it was
held that the owner of the pond had not thereby lost his
right to have the flow of the water.
This question has been raised, more frequently than upon
other grounds, upon changes made in substituting wheels
1 Prescott V. "Williams, 5 Mete. 429; Preseott v. White, 21 Pick. 341 ; Bris-
bane V. O'Neall, 3 Strobh. 348 ; Doane v. Badger, 12 Mass. 63 ; Kauffman v.
Greisemer, 26 Penn. St. 407 ; Darlington v. Painter, 7 Penn. St. 473 ; Peter
V. Daniel, 5 C. B. 568, 578, 579 ; 11 TouUier, Droit Civil Fran^ais, 449.
■■^ Fessenden v. Morrison, 19 N. II. 226.
3 Luttrell's case, 4 Rep. 86; Allan v. Gomme, 11 Adolph. & E. 759.
* Hale V. Oldroyd, 14 Mees. & W. 789.
358 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
of a different size or construction, or in the nature of the
business carried on in the works upon the stream.
Thus in Luttrell's case,^ where one prescribed for a grist-
mill or fulling-mill, he might sustain it, by proving either ;
and a change of a mill from a grist-mill to a fulling-mill did
not impair the rights belonging to the same, if no prejudice
thereby arose to other owners, by diverting or obstructing
the water.
In Saunders v. Newman,^ the plaintiff's mill was an an-
cient one, for operating which he had substituted a large for
a small wheel, but placed the same xipon the original Ifevel
of the former one, and it actually took less water to carry
it than the former one. The defendant, an owner of a mill
below the plaintiff's, altered his works so that by their opera-
tion he interfered with the operation of the plaintiff's mill,
and claimed a right to do so, inasmuch as the plaintiff had
not acquired a right to maintain his present wheel.
[*285] But *the court held that the plaintiff had not, by
this change, lost the right to have the water flow
from his mill as formerly, and might apply it in such man-
ner as he pleased, provided it did not prejudice the rights
already acquired by the lower mill. " The defendant, there-
fore," says Holroyd, J., " had no right to use the water, in
this case, after the erection of the plaintiff's mill, in a differ-
ent manner than it had been accustomed to be used before,
for, at all events, by that act the plaintiff appropriated to
himself the water flowing in that particular way."
It has accordingly been held, that, where one had acquired
a right to draw water for a mill standing upon an ancient
dam, he might cease to use tlie water at that place, and draw
it by gates to operate a mill upon another sit& below, pro-
vided he did not increase the quantity so drawn. " It is
1 Luttrell's case, 4 Rep. 86 ; Johnson v. Rand, 6 N. H. 22 ,• Bulleu v. Run-
nels, 2 N. II. 255 ; Blanchard v. Baker, 8 Me. 253 ; Allan v. Gomme, 1 1
Adolph. & E. 759.
'^ Saunders ». Newman, 1 Barncw. & Aid. 257, 262 ; Buddingtou v. Bradley,
10 Conn. 213, 219 ; Mcrritt v. I'arkcr, Coxe, 460, 403.
Sect. 3.] USE OF WATER FOR MILLS. 359
immaterial," say the court, " to tlie plaintiff at what spot the
defendants apply the water to a wheel, or what machinery
that wheel turns, so long as they do not exceed their rights
in the quantity they use." ^
In the above action, the defendants drew their water
through a gate at one end of a dam, 'on the other end of
which the plaintiff had a mill. They used the water some
three miles below this dam. But they had, by artificial
reservoirs, increased the quantity in the stream above this
dam at their own expense, and in dry times drew so much
of this extra quautitjj of water that the plaintiff lost the bene-
fit of it at his mill, though ho had the usual and natural sup-
ply ordinarily running in the stream at such times. For
this he brought his action, and it was held that the defend-
ants had a right to use this additional supply of water as they
did, for the benefit of their mills.^
In King v. Tiffany,^ which has already been referred to,
the plaintiffs erected their mill in 1802 ; the defend-
ants *theirs, below the plaintiffs', in 1818, and raised [*286]
their head of water so high, that when, in 1832, less
than fifteen years (the period of prescriptive right in Con-
necticut) after the erection of the defendants' dam, the plain-
tiffs put a new wheel into their mill, and placed the same
lower than the former one, it was obstructed by the back-
water of the defendants' pond. The majority of the court
held that the plaintiffs had a right thus to change their
wheel, theirs being a prior mill, and that the acts of the de-
fendants in keeping up their pond to the obstruction thereof
was against right.
The opinion of Dagget, J. in favor of the defendants, under
such circumstances, seems to be more in accordance with the
modern notions of courts upon the law of the case.
So a mill-owner may adopt improved machinery in his
1 Whittier v. Coclieco Mg. Co., 9 N. H. 454.
2 But see ante, pL 33. See Eogers v. Bruce, 17 Pick. 184 ; post, pL 53.
2 King V. Tiffany, 9 Conn. 162.
360 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
mill, -which takes less water to carry it than that in use be-
fore, although the effect of this may be to keep a higher state
of water in his pond. So he may change, at his pleasure, the
point at which the power is applied, as, for instance, he may
draw the water on to his wheel from the top instead of the
bottom of the flume.^
But this right to change the machinery in a mill, even by
adopting that of an improved character, may be limited by
its effect upon other mills ; as where the defendant erected a
saw-mill upon a stream just above the plaintiff's, and intro-
duced into it machinery which required so little water to
carry it, that what was discharged from his wheel was insuf-
ficient to carry the mill of the plaintiff to advantage, it was
held that it was an injury to the plaintiff for which he might
sustain an action.^
And where the introduction of new machinery into one
mill is a nuisance to another, it is no justification that the
mill in which it is used is an ancient one. In respect to the
use of such machinery it is a new mill.'^
[*287] *Nor is it a defence to the owner of an upper mill
for obstructing the natural flow of the stream, to the
injury of a mill below, that the owner of the lower mill had
changed his works so as to require more than his accustomed
supply of water, or had changed the mode of applying the
water.*
47. The owner of a watercourse, as has heretofore been
stated, may change the course of a stream through his own
land, provided he does not thereby diminish the beneficial
use of the water to the adjacent proprietors. So he may
change the same back to its original channel, unless other
proprietors, having a right to the use of the water, have been
led by such original change to expend money in order to en-
1 Co well V. Thayer, 5 Mete. 253.
2 Wentworth v. Poor, 38 Me. 243.
^ Simpson v. Seavey, 8 Me. 138.
* Buddington v. Bradley, 10 Conn. 213; Johnson v. Lewis, 13 Conn. 303;
Cox V. Matthews, 1 Ventr. 237 ; Mcrritt v. Parker, Coxe, 458.
Sect. 3.] USE OF WATER FOR mLLS. 361
joy the benefit of the same, in its new channel, and would be
injured by such second change. By suffering them to ex-
pend money upon their premises, in reference to the new
channel, as if it were to be a permanent one, he dedicates it
to their use, in its then state and condition. ^
So if a new channel has been found for the current of a
stream, and the riparian proprietors have enjoyed it in that
condition for twenty years, they thereby gain a right to its
use, nor can the land-owner change it again, against their
consent.^
The grantee of a mill would have no right to have the
course of the stream from the same over another's land
changed into a new place. But it would be otherwise if the
water by natural means changed its course and found a new
channel.^
48. If one, having gained a right to foul the water of a
stream by carrying on a trade upon its banks by
which a *certain quantity of fouling matter is dis- [*288]
charged into it, increase his works, and thereby
increase the quantity of such matter discharged, he will
be responsible to the proprietors below for such increase.
And Cresswell, J. remarked, " If a man goes on increas-
ing the use every year, he has not, actually, used the
stream for the whole period in the manner he claims,"
which remark was applicable to the English statute of pre-
scription.^
49. In order to treat this subject with anything like com-
pleteness, the mode of using and managing water-power for
operating mills should be noticed, in order that a line may
be drawn between what would be a legitimate use and what
1 Ford V. Whitlock, 27 Vt. 265 ; Norton v. Valentine, 14 Vt. 239 ; Wood-
bury V. Short, 17 Vt. 387 ; Devonshire v. Eglin, 7 Eug. L. & Eq. 39; s. c, 14
Beav. .5,30; Townsend v. M'Donald, 14 Barb. 460.
2 Dalaney v. Boston, 2 Harringt. 489.
3 Miller v. Bristol, 12 Pick. 550.
* Moore v. Webb, 1 C. B. n. s. 673 ; Holsman v. Boiling Spring Co., 1
M'Carter, 345.
362 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. 111.
ought to be resisted by other proprietors, if they would pre-
vent a mill-owner acquiring rights as against them, by pre-
scription, as well as to ascertain what might be done in de-
fending against such adverse user.
What a mill-owner may or ought to do in the manage-
ment of his dam and mill, and keeping the same in repair,
often varies with the variant circumstances of the different
cases.
Thus, if there were no other mill upon the stream, and he
were to suffer his dam to go to decay, and the water of his
pond to escape by its breaking away, it might afford no cause
of action to other proprietors upon the stream, who, if they
had had mills standing thereon, to be thereby damaged or
endangered, might have an action for such negligence, or
want of care. A mill-owner, in other words, is bound to use
reasonable care and diligence in keeping his dam and works
safe and in proper repair, and is responsible if, by want of
such care and diligence, a mill-owner below is injured. But
if a mill-dam gives way, or other damage to a lower mill re-
sult from inevitable accident to the upper mill, the owner of
the mill causing the damage is not responsible therefor. In
Delaware there is a statute requiring notice to be given
by an upper mill-owner, to those below him upon
[*289] *the stream, of any extraordinary discharge of water,
whether by accident or intentionally on the part of
the upper owner.^
50. A question somewhat analogous to that of damages
occasioned by an extraordinary flood in a stream by the
breaking away of an upper dam, is that of damages occa-
sioned to an upper mill, in times of freshets or high floods
in the stream, by the water behig prevented by a lower dam
from subsiding as it otherwise would have done. The ques-
tion supposes such lower dam so constructed b,s not to occa-
sion any backwater upon the upper mill in any ordinary
1 Lapham v. Curtis, 5 Vt. 371, 381 ; M'llvaine v. Marshal], 3 Harringt. 1 ;
Ross V. Horsey, 3 Ibid. 60; Soulc v. Russell, 13 Mctc. 436.
Sect. 3.] USE OF WATER FOR MILLS. 3G3
state of the stream. Some of the cases seem to hold that
the lower mill-owner would be responsible to the upper one
for such injury. Other cases would only hold him responsi-
ble for an injury caused by flowing back the water in its
usual state, or in such freshets as usually and periodically
occur, and which the mill-owner ought to have regarded in
erecting his dam.
In Pugh V. Wheeler,^ the language of the court Avas :
" One has the right at no time to prevent the water flowing
from the land of the proprietor above as it has usually done,
more than the proprietor above has the right to divert the
stream so as to prevent it from flowing to him below." And
they held the party responsible for such temporary obstruc-
tion, the difference between a permanent and occasional ob-
struction being only in the amount of damages. And in the
case of Thompson v. Crocker,^ the court appear to recognize
the right of an upper mill-owner to maintain an action for
having his mill obstructed "during freshes," where the
damage " was caused when the water was unusually high,"
if his mill had sustained any actual perceptible damage in
consequence of the erection of the defendant's dam.
*The court do not in either of the above cases seem [*290]
to have considered the distinction which some of the
cases make between freshes ordinarily or periodically occur-
ring and those extraordinary floods which sometimes occur
in streams, which no foresight can anticipate or guard against,
consistently with the reasonable use of the several privileges
upon a stream.
Thus in China v. Southwick, one was authorized to erect
a dam, but not so high as to flow or injure a certain bridge.
After the erection of the dam, by reason of extraordinary
rains and high winds, the water flowed back and injured the
bridge, which it would not have done had it not been for the
dam. The court held that the owner of the dam was not
1 Pugh V. Wheeler, 2 Dev. & B. 50, 53.
^ Thompson v. Crocker, 9 Pick. 59.
364 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
responsible, the true doctrine being, " causa propinqua non
remota spectatur.'^ ^
In Smith v. Agawam Canal Co., just cited, the defend-
ants erected a dam below the plaintiff's ancient mill, which
only occasioned damage to the plaintiff's works at certain
times, when, upon the breaking up of the ice in the stream,
it was stopped by the defendant's dam, and, by being piled
up, stopped the flow of the water, and set it back upon the
plaintiff's works. It was held to be a consequence too re-
mote to be charged upon defendants' dam. The general
principle stated is : " Riparian proprietors may erect and
maintain dams on their own lands across streams, to raise a
head of water for the working of mills, without being liable
for consequences which are casual, remote, and uncertain."^
61. A peculiar case may be noticed in this connection, in
which a party, injured by the act of another, was held to be
remediless, because it was incident to a lawful act on the
part of the latter. In Pixley v. Clark, the defendant
[*291] had *purchased of the plaintiff a strip of land along
a stream, upon which he erected a mill and dam,
and raised a head of water. Upon this strip of land, and
adjacent to the plaintiff's land, he erected an embankment
for the purpose of thereby raising the water in his pond.
The effect of this was found to be, that the water, when thus
raised, percolated through the natural banks of the stream,
and reached the plaintiff's land and injured it. But inas-
much as the defendant's embankment was properly con-
structed, and he had a right to erect it on his own land, and
thereby to raise a head of water for the use of his mill, the
adjacent land-owner was without remedy for the indirect and
consequential damages thereby resulting to him.^
52. Though the remedy which one has whose right of
easement is invaded, as well as what one may do to guard
1 China v. Southwick, 12 Me. 238; Smith r. Agawani Canal Co., 2 Allen,
355.
2 Smitli V. Agawam Canal Co., 2 Allen, 355.
8 Pixley V. Clark, 32 Barb. 268.
Sect. 3.] USE OF WATER FOR MILLS. 365
against encroachments which, if continued, may grow into
easements, are treated of in another part of this work, it
may be proper to refer, in this connection, to one or two
cases more especially applicable to mills.
Ordinarily, if one wrongfully flows back water upon the
mill of another by an obstruction placed by him in the
stream within his own land, or prevents the flow of water
to such mill, the owner thereof may enter upon the land of
the party causing this obstruction, and remove it.^ But
there is often a difficulty in knowing when this may be
applied, for there are cases where, from the peculiar nature
of the ownership, if a mill-owner is injured by the acts of
another, he must resort to an action at law, or process in
equity for redress. In one case it was held that, where the
upper proprietor turned a second stream into the one natu-
rally flowing through his land, and thereby threw more
water than naturally flowed in such stream into the
* current in another's land below, the latter had a [*292]
right to stop such extra flow, before reaching his
land, and, if necessary in order to do it, might stop the
stream altogether, without subjecting himself to an action
in favor of the one who caused the diversion.^
But where of two mill-owners upon opposite ends of a
dam, and drawing water from the same pond, one had a
right to the exclusive use of the water when insufficient to
carry both mills, and the other, in violation of this prece-
dence of right, continued to draw water when insufficient to
supply both mills, it was held that the former mill-owner
had no right to create a permanent obstruction to the flow
of the water to the other mill in order to turn the same
towards his own.-^ It is, however, the duty of the one hav-
1 Hodges V. Raymond, 9 Mass. 316; Baten's case, 9 Eep. 54 6; Colburn v.
Richai-ds, 13 Mass. 420; Langford v. Owsley, 2 Bibb. 215; Dyer v. Depui, 5
Whart. 584; Heath v. Williams, 25 Me. 295 ; Bemis v, Clark, 11 Pick. 452.
2 Per Kinsey, C. J., Merritt v. Parker, Coxe, 460 ; Tillotson v. Smith, 32 N.
H. 90, 95 ; Pardessus, Traite' des Servitudes, § 88.
^ Curtis V. Jackson, 13 Mass. 507.
366 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
ing the subordinate right, to take notice and not to draw the
water when there is a deficiency in quantity for both. But
if he continues to draw in such a state of water, the other
party may enter upon his premises and stop the passage of
the water to his mill, subject, however, to the duty of re-
moving such obstruction as soon as there is again sufficient
for both mills. ^
53. A case of a qualified right to stop another in the use of
the water of a stream, not very analogous, it is true, to those
above stated, was where a mill-owner had acquired, by use,
a right to maintain a dam and flume on another's land, and
thereby controlling the waters of a pond which served as a
reservoir for his mill below. The owner of the land, having
erected a mill on his own land, raised the dam to a much
greater height, and much increased the head of water, and
proceeded to draw from the same, discharging it into its ac-
customed channel running to the lower mill. It was held
that the lower mill-owner had no right to obstruct
[*293] * him in drawing the water in the pond as low as
the surface of the former pond.^
It need only be added, that, as the law aims to provide an
adequate remedy for every legal injury, there is often an
election of remedies for a person suflfering by the wrongful
inteference with his rights as a mill or riparian owner.
SECTION IV.
OF RIGHTS IN ARTIFICIAL WATERCOURSES.
1. Two classes of artificial watercourses defined.
2. Distinction between natural and artificial watercourses.*
3. Case of Arkwrigbt v. Cell. Owner may stop the latter.
4. The owner of artificial watercoiirse may not foul the water.
5. Case of Wood v. Waud. One cannot claim the water on another's land.
1 Sumner v. Foster, 7 Pick. 32.
- Rogers v. Bruce, 17 Pick. 184. See Whittier v. Cocheco Mg. Co., 9 N. H.
454 ; ante, pi, 4G.
Sect. 4.] RIGHTS IN AKTIFICIAL WATERCOURSES. 367
6. Case of Greatrex v. Hayward. Stopping drains on one's own land.
7. Case of Magor v. Chadwick. Case of fouling an artificial stream.
8. Same rules not applicable to natural as to artificial watercourses.
9. Of acquiring an easement in an artificial watercourse.
10. An artificial watercourse in another's land an incorporeal right.
11. Cases of right to enter and clear watercourses.
12. Easement of discharge of water upon another's land.
13. Adverse use of artificial watercourse gains an easement.
14. Parol license to use land, &c. revocable.
15. What are easements in natural and artificial watercourses.
16. How far they differ in this respect.
17. 18. When artificial may acquire the properties of natural streams.
19. Effect of laying an aqueduct from a spring to a dwelling-house.
20. Effect of water flowing artificially twenty years through one's laud.
21. One having an easement in water cannot enlarge it at will.
22. Of effect of changing the course of an artificial watercourse.
23. When one, having changed a watercourse, is estopped to change it.
24. Case of Middleton v. Gregoire. One having no right to abandon his dam.
25. Case of Lefevre v. Lefevre. Change of direction of watercourse.
26. Of change in a stream by natural causes, and its effect.
1. The watercourses thus far spoken of have been such
as exist by nature, and it has been of the use and
*appropriatian of the water flowing in these, in con- [*294]
nection with the riparian ownership of the land
through which they flow, that it has been attempted to sys-
tematize and embody the rules by which they are governed.
It is proposed, in the next place, to consider watercourses
which are artificial in their original construction, and to
point out wherein the law as to easements and servitudes,
connected therewith, differs from that of those connected
with natural streams of water, as they relate to irrigation,
the operation of mills, or otherwise.
These may naturally be divided into two classes ; first,
where the supply of the watercourse is itself created by art ;
and second, where new and artificial channels are made to
serve, in whole or in part, the purposes of natural conduits
of water flowing upon or issuing from the earth.
2. The first great distinction between natural and artifi-
cial watercourses is, that while the use of the one is incident
to the ownership of the land itself in v* inch it exists, that of
368 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
the other may exist merely as an easement in such land, be-
longing to another than the owner of the land. And the dis-
tinction between the two classes of artificial watercourses
may be generally stated to be, that if the supply of water be
artificially created, as well as the course in which it is made
to flow, no property like that of a perpetual easement can be
acquired in the water by the use thereof, especially if the
original purposes of its creation were temporary in their
nature, while, if the artificial course be a substitute for a nat-
ural one, in conducting the flow of a permanent stream of
water, an easement in the case of such water may be acquired
by the owner of the land through which it passes, by an
enjoyment thereof for a requisite period of time.
This proposition, as well as what is meant by creating an
artificial supply for a watercourse, and by creating it for pur-
poses temporary in their nature, can best be illustrated by a
few recent English cases, which it will be necessary to state
at considerable length.
[*295] *3. The first of these is Arkwright v. Gell,i de-
cided in the Court of Exchequer in 1839. In that
case it appeared that, as early as 1705, the proprietors of
certain mines then in operation made arrangements with
certain persons to drain these mines of water, by a " sough,"
as it was called, which had its outlet in the land of a third
person. The water from the mines flowed through this
land into a natural stream, upon which, in 1772, the plain-
tiff erected a manufactory, and enjoyed the use and benefit
of the stream thus enlarged till 1825, when the defendants,
being also owners of other mines connected with those
drained by the first sough, made an arrangement with the
latter owners, but for the benefit of the defendants, to con-
struct a new sovgh which should enter the mines at a lower
level, and drain them. The effect of this was that the water
1 Arkwri',rht v. Gell, 5 Mees. & W. 203 ; Wood v. Waud, 3 Exch. 748, 778;
Grcatrex v. Ilayward, 8 Exch. 291 ; Norton v. Valentine, U Vt. 239 ; North
Eastern Railway Co. v. Elliott, Johns. & U. 154.
Sect. 4.] EIGHTS IN ARTIFICIAL WATERCOURSES. 369
from tlie mines no longer flowed into the first soug-h, and
the plaintiff lost so much of what had been thereby supplied
for operating his mill. At his request a barrier was placed
in the second sough, which prevented this diversion of this
water till 1836, when, in order to test his right to claim it
as appurtenant to his mill, the present action for such diver-
sion was brought.
The court did not sustain the action, and held, among
other reasons, that wliat the plaintiff had been thus enjoy-
ing was not a natural watercourse, but a supply created by
another person under whom the plaintiff did not claim, and
who had created it for his own benefit to enable him to work
his mines ; that, though the plaintiff had enjoyed the flow
of the water for such a length of time, it was in no sense
a user adverse to the owner of the mine, to whom it must
have been indifferent what use was made of the water
after it had been discharged from the sough; *that [*296]
the plaintiff thereby acquired no right to insist upon
the water being kept up to a certain height in the mine, but
that the mine-owner, if it was convenient, in working it, to
drain from a lower level, had a right so to do.
It will be remarked, as an important circumstance in this
case, that the one who dug the second sough and caused
the diversion was interested in the mines thereby to be
drained. Had it been otherwise, had he been a stranger,
or merely the owner of the land lying between the outlet
of the first sough and the place where the water entered
into the natural stream, he would have had no right to
divert the current issuing from the mine, so as to deprive
the plaintiff of the use of the water flowing in the same,
after having enjoyed it so long. Park, B., in illustrating
the doctrine intended to be laid down by the court, sup-
poses the case of a current of water made by pumping it
from a mine by a steam-engine. Though it should be con-
tinued for twenty years, it could give no land-owner who
had thereby derived a benefit from the flow of this water
24
370 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
over his land a right to maintain an action against the
miner for the loss of this, if he should see fit to stop pump-
ing. Another illustration was that of a land-owner having
the benefit of the water flowing from his neighbor's eaves for
more than twenty years, the owner of the house might, nev-
ertheless, take down the house and stop this flow at any
time. " The nature of the case," says the judge, "distinctly
shows that no right is acquired as against the owner of the
property from which the course of water takes its origin,
though, as between the first and subsequent appropriator of
the watercourse itself, such a right may be acquired."
4. It should be remarked also, that while, in cases like
that last cited, the owner of the land over which the water
flows would have no right to divert the water, since to him
it is, as to the riparian proprietors below, as a natural stream,
it would not be competent for the mine-owner,
[*297] though he *might stop it, to foul or corrupt the
same to the injury of the proprietors upon the
stream. To that extent, if suffered to flow, it had the in-
cidents of a natural stream, even as against the one who had
created it.^
5. The case of Wood v. Waud, above cited, presented still
other features as to the rights of land-proprietors upon a
stream created by artificial draining of mines. The plaintiff"
and defendant each had mills upon a small natural stream.
A part of the supply of water for these was derived from two
different mines, from one of which a stream had flowed for
sixty years, by means of an artificial outlet dug by the owner
of the mine for the purpose of draining his mine. From the
other mine a stream of water flowed which was caused by
pumping. These streams flowed through separate soughs
into the natural stream. One of these passed underground
through the defendant's land, before reaching the plaintiff's
land, and then through that into the stream. The other did
1 Wood V. Wiiufl, 3 Exch. 748 ; Magor v. Cliadwick, 11 Adolph. & E. 571 ;
Sec Wardle v. Brocklcluirst, 1 E. & Ellis. 1059.
Sect. 4.] RIGHTS IN ARTIFICIAL WATERCOURSES. 371
not pass tliroiigh tliG plaintiff's land at all before reaching
and discharging itsell" into the stream.
The action of the plaintiff was for diverting, or improperly
interfering, by the defendant, with the enjoyment by the
plaintiff of the water flowing from these soughs. Whatever
he did in this respect was done by him upon his own land,
before they had entered and united with the waters of the
natural stream, and before the water of the sough that run
through the plaintiff's land had reached the latter.
The court held, that, if the mine-owner had seen fit to stop
the supply of water, or divert it, so that the water from the
mines should no longer reach the works of the mill-owners,
he would not have been liable therefor, adopting the doctrine
of Arkwright v. Gell. As between the plaintiff and defend-
ant, no prescription had been set up or relied on, on either
side ; neither had any right to complain of any use
which * the other should make of the water in his [*298]
own land, before it reached that of the other, pro-
vided he did not foul it, or turn it into the stream heated, so
as to injure the party below. " Each," in the language of
the court, " may take and use what passes through his land,
and the proprietor below has no right to any part of that
water until it has reached his own land. He has no right to
compel the owners above to permit the water to flow through
their land for his benefit, and consequently he has no right
of action if they refuse to do so If they polluted the
water so as to be injurious to the tenant below, the case
would be different." But as soon as the water from either
of these soughs had become united with that of the natural
stream in its natural watercourse, it partook of the character
and incidents of a natural stream. Pollock, C. B., in giving
the opinion of the court in the above case, gives, as an illus-
tration of the doctrine which he sustains, the case of a drain
made througli a man's land for agricultural purposes, which
had continued for twenty years, whereby the water from his
own land was discharged upon that of another. Tliis would
372 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
not give a right in the latter to insist upon its continuance,
and thereby to preclude the land-owner from altering the
level of his drain for the greater improvement of his land.
" The state of the circumstances in such cases shows that
one party never intended to give, nor the other to enjoy, the
use of the stream as a matter of right. ''^
The above case makes this important distinction between
the right of a lower riparian proprietor to water flowing in
a natural stream, and to that created and flowing in an arti-
ficial one, for a temporary purpose, that in the former case
an action will lie for its diversion by an upper proprietor,
although done in his own land, whereas in the latter case no
action will lie for the diversion of the water, unless the same
shall have reached and become a part of a natural stream.
Such diversion, however, as appears by other cases,
[*299] should be made not * wantonly or maliciously, but
in the prosecution of some legitimate business.
6. The case supposed by Pollock, C, B., in the above case,
of an agricultural drain, arose in that of Greatrex v. Hay-
ward, in 1853, and is fully considered, and the doctrine by
him stated is fully sustained. It was further held, that no
length of enjoyment of what was designed by another for a
temporary use, like the discharge of water from a drain de-
signed for such a use, could gain for the recipient a pre-
scriptive right to claim it. In that case the lands of the
plaintiff and defendant adjoined each other. As early as
1796 the defendant dug a drain in his land, through which
the water, as it collected therein, was discharged into a ditch
of the plaintiff" that ran along near the defendant's land, and
through which it flowed into a large pit in the plaintiff's
land, where it was used for watering his cattle and other
like purposes. In 1851 the defendant changed the mode of
draining his land, whereby the water from the same escaped
at a lower level, and the plaintiff lost the benefit of its accus-
tomed flow. And for this he brought this action. The court
held that the action would not lie, upon the grounds, among
Sect. 4.] RIGHTS IN ARTIFICIAL WATERCOURSES. 373
others, upon which the cases above cited were determined.
Alderson, B. says: " In one sense, perhaps, it may be said,
that the plaintiff has enjoyed the use of this water as of
right, because the defendant has not in any way impeded
such use. But it is not such a user as of right as will serve
his present purpose, for there has been no adverse user."
Parke, B. : " The right of a party to an artificial water-
course, as against the party creating it, must depend upon
the character of the watercourse and tlie circumstances un-
der which it was created. This watercourse is clearly of a
temporary nature only, and is dependent upon the mode
which the (iefendant may adopt in draining his land." ^
7. The case of Magor v. Chadwick, decided in the
Queen's * Bench, in 1840, ought to be noticed in [*300]
this connection, because of certain expressions made
use of by Penman, C. J., in giving the opinion of the court,
which have not met the approbation of other eminent judges ;
and the doctrine of the case may, at least, be said to have
been modified, if not overruled by later cases. The water
in that case flowed from a drain originally dug by the owner
of a mine for the purpose of draining the same. But the
mine had not been wrought for thirty years. The adit of
the underground watercourse was in land which did not be-
long to the plaintiff. The plaintiff, a brewer, cleared out
this adit, and applied the water to the use of his brewery,
although, in the state in which it was discharged while the
mine was in operation, it would have been unfit for such a
use ; and he had enjoyed it in this state for more than
twenty years. The defendant owned a mine, other than
that for which the drain was originally dug, and, in order to
drain it, made use of this original passage-way, though not
claiming any right to do so, under any grant or title from
the original mine-owner, but doing it, first, under a right by
usage in the mining regions where the premises were situate,
and second, on the ground that the same rules did not apply
1 Greatrex v. Havward, 8 Exch. 291.
374 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
to sucli artificial outlets of water as to natural watercourses.
The use of the channel as a drain for the mine fouled the
water, so that the plaintiffs could not use it. Patteson, J.
instructed the jury, " That, in the absence of custom, artifi-
cial watercourses are not distinguished in law from such as
are natural, that the same rules apply to them, and that
twenty years' enjoyment might therefore warrant the jury in
finding in favor of the right." And the Chief Justice, in
stating the opinion of the court, says : " The imputed misdi-
rection is, that the law of watercourses is the same, whether
natural or artificial. We think this was no misdirection,
but clearly right." ^ •
[*301] *8. As applicable to the case under consideration,
where the defendant did not justify under any claim
of title to, or ownership of, either the mine drained by the
watercourse, or the land in which it had its adit, the ruling
was doubtless correct. But the broad terms in which it was
announced, it is believed, are not sustained by later and bet-
ter-considered cases. The court, in Wood v. Waud, above
cited, take this distinction, and, moreover, the distinction
there is between diverting water and fouling it, which do not
stand upon the same ground in law, and add : " The general
proposition, that under all circumstances the right to water-
courses arising from enjoyment is the same, whether they be
natural or artificial, cannot possibly be sustained."
The reader will observe, that it is not assumed that pre-
scriptive rights may not be acquired in artificial water-
courses, under some circumstances, but it is properly de-
nied that the law, in respect to acquiring these, is the same
in all respects as it is as to similar rights in the water of nat-
ural streams. And Crowder, J., in Sampson v, Hoddinott,
commenting upon the case of Magor v. Chadwick, says :
" That case has been considered not altogether satisfactory,
and it is inconsistent witii Arkwright v. Gell." And Cross-
well, J., in the same case, in referring to the distinction
1 Mii{,'or V. Cluulwick, 11 Adolpli. & E. 571.
Sk(t. 4.] EIGHTS IN ARTIFICIAL WATERCOURSES. 375
there is, in point of law, between an artificial drain and a
natural stream, says: "All authorities, from the Digest
downwards, show that there is."^
9. The question, how far an easement can be acquired in
an artificial watercourse by one not owning the land through
which it is constructed, was raised in Beeston v. Weate, in
the Queen's Bench in 1856. In that case the defendant
owned a piece of land between that of the plaintiff and a nat-
ural stream which ran along by the side of the defendant's
land. From this stream there was an artificial channel
cut through the defendant's land to the land of the
*plaintiff, and by putting sods in the stream the [*302]
water thereof would flow into this channel, and,
when not used by the defendant for irrigating his interme-
diate land, would reach that of the plaintitf, where it was
made use of by him for watering his cattle and the like.
The owners of the plaintiff's land had been accustomed to
place this dam of sods in the stream whenever they desired
the water, and had thereby enjoyed the use of it, except at
the times when the defendant saw fit to apply it in irrigating
his land, which was a right prior to that of the plaintiff. In
this state of things, the defendant removed the dam of sods
altogether from the stream, and thereby wholly deprived the
plaintiff of the water. In the hearing of the case, the de-
fendant insisted that the artificial trench being in his own
land, for liis own use, the plaintiff could not acquire an ease-
ment therein by user, to draw water therefrom for the use of
his land. Lord Campbell, C. J., however, while approving
the cases of Arkwright v. Gell, Wood v. Waud, <fec., said :
" We do not consider that the cases lay down any such rule
as that enjoyment and acts, which, without the existence of
the easement, would be tortious and actionable, may not be
evidence of the right to the use of water, although it flows
in an artificial cut In the cases referred to, regard
was had to the water being obtained artificially by the owner
^ Sampson v. Hocldinott, 1 C. B. n. s. 590,
376 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
of the servient tenement, rather than to the water running
through an artificial cut If it were not that the occu-
pier of the servient tenement lias himself used the water
flowing through the artificial cut for irrigation, no plausible
objection could be made to the easement which the plaintiff
claims, and we do not see that the use of the water on the
servient tenement takes away from the effect of the use of it
for the dominant tenement, regard being had to the posi-
tive acts done by the occupier of the dominant tenement
for the purpose of enjoying the easement." The court,
moreover, held, that the evidence showed that the artificial
cut was not originally made for a temporary purpose,
[*303] *excluding the case from the principle of some of
those above cited. And it was held, that the plain-
tiff was entitled to recover for this interruption of his right
to enjoy the water. ^
In illustrating some of the positions taken in the above
case, the Chief Justice puts the case of water for a mill
turned by a weir across a stream in a leat through the land
of another to a mill, and after being used there returned
into the natural stream again, where the mill-owner has
been accustomed to go upon the land of the intermediate
land-owner and clear the leat whenever there was occasion
therefor, or repair the banks thereof, long enough to ac-
quire, so far as time was concerned, a prescriptive right.
" We conceive," says he, " that the right to do so might be
established, and that an obstruction to the flow of water
through the mill hat would be actionable."
10. It was accordingly held, in Baer v. Martin, that a right
in one man to convey water through the land of another,
by a race to the mill of the former, was an incorporeal he-
reditament, and, if the same were obstructed, an action of
trespass quare clausum as to a corporeal hereditament would,
not lie. 2
1 Becston v. Weate, 5 Ellis & B. 986. See Watkins v. Peck, 13 N. H. 360,
3 70, sustaining a similar doctrine.
'^ Baer v. Martin, 8 Blackf. 317.
Sect. 4.], RIGHTS IN ARTIFICIAL WATERCOURSES. 377
11. Rights like those indicated by Lord Cami)bcll, in re-
spect to entering upon the land througli whicli an artificial
watercourse conducts water to or from a mill, and clearing
or repairing the same, may be acquired by user by the mill-
owner of such watercourse, although he may never have
had occasion before to do such acts, as has been' decided in
several of the American courts. One of these is Prescott v.
White, where there was an artificial race-way from an an-
cient mill through another's land, whereby the water of such
mill was discharged into the natural stream below. It was
held that the mill-owner might enter upon such land and
clear the channel if necessary, though he had never
*done so before, doing only what was customary in [*304]
like cases, on the broad ground that, having an ease-
ment of discharge of water through another's land, he had,
as incident thereto, the means of keeping the same in repair
and fit for use. In doing this, however, he must exercise all
reasonable care to do no unnecessary injury to the land-
owner ; and where stones had fallen from the wall of the
race-way, he was bound to replace them upon the wall, and
if the earth had fallen from the banks into the watercourse,
he was bound to replace it again upon the bank for the own-
er to use if he saw fit ; and, if not fit for use, the mill-
owner must remove the materials in a reasonable time, in a
manner least prejudicial to the land-owner. And if the mill-
owner's land adjoined such watercourse on one side of it, he
must make use of that for the deposit of such material taken
therefrom which is not useful for the land-owner. These
rules are applicable to cases where the mode of clearing or
repairing such watercourse has not been fixed by grant or
prescriptive use.^
A similar doctrine is declared in several cases, as being
applicable to the case of entering upon and clearing a natu-
1 Prescott V. White, 21 Pick. 341. See also Darlington v. Painter, 7 Penn.
St. 473 ; Brisbane v. O'Neall, 3 Strobh. 343 ; Kauffnian v. Grieseraer, 26 Penn.
St. 407, 413.
378 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
ral watercourse flowing from a mill through another's land.
The court in one case call it " a natural easement in the
land below," and consider it as belonging to a mill, " inde-
pendently of any right acquired by compact or by prescrip-
tion." 1
How far it is strictly proper to speak of that as an " ease-
ment" which is neither acquired by compact nor prescrip-
tion, but belongs intrinsically to the estate with which it is
used, is referred to in another part of this work,^ and
[*305 is * again alluded to here chiefly for illustrating the
extent of the doctrine how far an easement may be
acquired in watercourses that are strictly artificial.
12. By following out the illustrations adopted by the Eng-
lish courts in treating of rights which may be acquired, by
enjoyment, in watercourses artificially created for temporary
purposes, considerable has been said which properly belongs
to the second division of the subject, which relates to ease-
ments which may be acquired in or by artificial watercourses
supplied from natural sources and designed for permanent
use. And here, again, when treating of these, the reader
will find cases cited which might seem more properly appli-
cable to the rights which mill-owners or others may acquire
and enjoy in natural streams. But the reason for this will
be perceived in the analogy which the courts apply in similar
cases between natural and artificial watercourses.
Thus it may be stated, in general terms, that one may ac-
quire an easement to discharge water upon the land of an-
other, pure or foul, as the user may have been, by an arti-
ficial channel or pipe, or by having the water from the eaves
of his house fall upon his neighbor's land.^
The Chancellor, in the case of Earl v. De Hart, above
1 Prescott V. Williams, 5 Mete. 429 ; Kauffman v. Griescmer, 26 Penn. St.
413; Gary v. Daniels, 5 Mete. 236; Grittcnton v. Alger, 11 Mete. 281.
2 Ante, chap. 3, sect. 1, pi. 10.
3 2 Washb. Real Prop. 68 ; Wright v. Williams, 1 Mees. & W. 77, 78 ; Ash-
ley 7'. Ashley, 6 Gush. 70 ; Garlyon v. Lovcring, 1 Hurlst. & N. 784, 798 ; Earl
V. De Hart, 1 Bcasley, 280, 28.5.
Sect. 4.] RIGHTS IN ARTIFICIAL WATERCOURSES. 379
cited, ill relation to a channel by wliich water had been dis-
charged from the plaintiff's land, uses this language : " It
makes no difference whether it is a natural watercourse or
an artificial ditch. If it is a mere ditch, and the complain-
ant's land has enjoyed the use of it for more than twenty
years, and as an adverse right, then it is an easement which
the owner of the complainant's land has in that of the de-
fendant's ; it is a privilege, without a profit, and is as much
the subject of protection as a natural watercourse." ^
*13. In the case of Watkins v. Peck, the water- [*306]
course under consideration was from a natural
spring, and in treating of the rights which had been gained
by several therein, the court lay down the broad doctrine
that the adverse use of the water of an artificial aqueduct
for twenty years gains thereby a right to the enjoyment
thereof, in the same manner and to the same extent as
would have been the case if the water had flowed in a
natural channel.^
So in Pennsylvania, where it seems an executed license is
not revocable, A gave B permission to erect a dam on A's
land, by which to turn the water of a stream upon B's land,
through a channel, for the purpose of irrigating B's meadow ;
and B for twenty years had watered his cattle at the artificial
watercourse, when A began a business upon his own land by
which he fouled the waters running therein, so that the
cattle could not drink it. It was held, that by this user and
enjoyment B had acquired an easement to have his cattle
supplied with pure water by such watercourse. It was held,
in the same case, that one having a watercourse in his own
land may conduct the water thereof wherever he pleases
upon his land, if he do not materially diminish the quantity
to which others below him are entitled. And if, while so
managing the water, another were to interfere with the
water flowing therein, to the injury of such land-owner, he
1 Earl V. De Hart, 1 Beasley, 280, 285.
2 Watkins v. Peck, 13 N. H. 360, 370. See Elliott v. Rhett, 5 Rich. 405.
380 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
would be liable for such interference in the same manner as
if the watercourse had been a natural one.^
In California, in order to encourage mining, if one digs
a ditch for that purpose, for conducting water to a mine, he
acquires the exclusive right to control the waters flowing
therein, without being liable to have the same obstructed or
diverted by other ditches ; and under this rule it was
[*307] *held that a miner might avail himself of a dry
ravine for the purposes of an artificial ditch, with
all the rights he would have if excavated by art.^
14. It should, however, be stated, that, as understood in
England and most of the States, a parol license to con-
struct a watercourse in one's land is revocable, and no title
is thereby gained either to the land or to any right to main-
tain the watercourse. An enjoyment under such a license
would neither be by grant nor adverse user.^
15. Under a statute passed in 1840, giving the Supreme
Court jurisdiction in " all actions respecting easements on
real estate," the courts of Massachusetts have had occasion
several times to consider cases of what, as above explained,
have been called "natural easements" in watercourses, in
which it became necessary also to treat indirectly of the law
of easements in artificial watercourses. In one of these the
question raised was, whether the right which a mill-owner
has to have the water flow freely from his mill through the
land of a lower proprietor in the natural stream, was an
easement. It was held under the statute that it was. The
court make a distinction between the right to have water
flow over one's own land and over the land of another, in
these words : " The right which a party has to the use of
1 Wheatley v. Chrisniaa, 24 Venn. St. 298, 303, 304. See Ford v. Whitlock,
27 Vt. 26.5.
2 Hoffman v. Stowc, 7 Cal. 46.
^ Hewlins v. Shippam, .5 Barnevv. & C. 221 ; Fentiman v. Smith, 4 East,
107 ; Coclicrv. Cowper, 1 Crompt. M. & R. 418; 1 Washb. Real Prop. 399;
Mumford v. Whitney, 15 Wend. 380; Cook ». Stearns, 11 Mass, 533 ; Samp-
son V. Biirnside, 13 N. II. 264.
Sect. 4.] RIGHTS IN ARTIFICIAL WATERCOURSES. 381
water flowing over his own land is undoubtedly identified
with the realty, and is a real or corporeal hereditament, and
not an easement. But the right of a party to have the water
of a stream or watercourse flow to or from his lands or mill,
over the land of another, is an incorporeal hereditament,
and an easement or a prandial service, as defined by the
civil law. And it is immaterial whetlier the watercourse be
natural or artificial, or whether the right is derived
ex jure *natur(c or by grant or prescription. It [*308]
seems, however, that the right to receive the flow of
water and transmit it over the land of another, although a
natural easement, not beginning by grant or assent of par-
ties, may be claimed by prescription." ^
This language, cited from the case last named, was adopted
in Crittenton v. Alger ; ^ and the doctrine was reaffirmed in
Ashley v. Ashley,'^ that " the right which the plaintiff claims,
to have the water from his land run by the ancient water-
course over the defendant's land, is an easement."
This right in a mill-owner to discharge water upon an-
other's land is, in one sense, something so different from
that which one land-owner, as such, may claim to have the
water flowing through his own land discharged upon that of
the next proprietor below, that it may well be called an
easement, so far as it respects the upper estate, and a ser-
vitude in respect to the lower one, since it changes mate-
rially the manner and extent of using the waters of the
stream, in stopping them altogether, or discharging them
in unusual quantities, instead of suffering them to flow in
their accustomed current along the channel. But it is,
after all, an easement of a most peculiar character. No
unity of possession of the upper and lower estates, though
dominant and servient, destroys it as an easement, as in
ordinary cases. But it survives to the mill-owner the mo-
1 Gary v. Daniels, 5 Mete. 236, 238.
2 Crittenton v. Alger, 1 1 Mete. 284.
3 Ashley v. Ashley, 6 Ciish. 70.
382 THE LAW OF EASEMENTS AND SERVrrUDES. [Cii. III.
ment the two estates are again owned in severalty, whether
there is any express grant or reservation made of the stream
or not.i
16. How far a right thus to discharge water from a mill
by an artificial channel may be said to be, in all re-
[*309] spects, *like that by a natural one, it may not be im-
portant to inquire, as it is well settled that such a
right would pass with the mill, by implication, in a grant
thereof.^
And yet, to prevent misapprehension in the use of terms,
it would seem that when the court, in the cases above cited,
say, " It is immaterial whether the watercourse be natural
or artificial, or whether the right is derived ex jure naturce
or by grant or prescription," when applied to the right of
one land-owner to have the water flow to or from his land,
from or to that of another, their language must have related
to cases like those then under consideration.
Blackstone says : " A prescription cannot be for a thing
which cannot be raised by grant, for the law allows prescrip-
tion only in supply of the loss of a grant, and therefore pre-
supposes a grant to have existed." ^ But it is difficult to
conceive that water ever began to flow from a higher to a
lower level along the surface of the earth, by permission or
grant of the lower proprietor. While it is easy to under-
stand that a right to change and control the mode in which
it should flow, by acts of one owner upon his land, like stop-
ping it, and then suffering it to flow again to the injury of
another, might have originally been the result of compact
between them.
And in Sury v. Pigot, Whitlock, J. says : " In our case
1 Saunders ?'. Newman, 1 Barnew. & Aid. 2.58; Sury v. Pigot, Popli. 166;
Tyler v. Wilkinson, 4 Mason, 395 ; Hazard v. Robinson, 3 Mason, 272 ; Brown
V. Best, 1 Wils. 174 ; Wood v. Waud, 3 Exch. 748, 776. And Turker v. Jew-
ett, 11 Conn. 311, 322, where the point is examined at length.
•■^ New Ipswich W. L. Co. v. Batchelder, 3 N. H. 190; 2 Washb. Real Prop.
37 ; Johnson v. Jordan, 2 Mete. 234, 240.
3 2 Blackst. Com. 2G5.
Sect. 4.] RIGHTS IN AKTIITCIAL WATERCOURSES. 383
the watercourse doth not begin by consent of parties, nor by
prescription, but ex jure naiurce, and therefore shall not Ijc
extinguished by unity of possession. So it was early laid
down, that if one have a mill, and sue for a diversion of the
wat%r therefrom, if it be upon his own land and upon a
natural stream, he need not allege it to have been an an-
cient mill. But if he claims the water by prescription, he
must allege his mill to be an ancient one, in order to re-
cover
" 1
*So Story, J., in Hazard v. Robinson, says : " He [*310]
took the distinction that, where a thing hath its be-
ing by prescription, unity will extinguish it, but where the
thing hath its being ex jure naturce, it shall not be extin-
guished." 2
17. While it can hardly be proper to speak of water rights
belonging to mills ex jure naturae, or of the right to the
natural flow of a stream as one of prescription, it was un-
doubtedly correct to consider these embraced, under the
statute, in the category of " easements on real estate," and
that watercourses, though originally artificial, when once
created by grant or prescription and applied to purposes of
art, or as a means of enjoying the use of water, have most
if not all the incidents and rights of natural watercourses
attached to them.
This is illustrated by the case of Townsend v. M'Donald.
There three owners of land, through which ran a natural
watercourse, made division thereof in reference to enjoy-
ing the power of the water, by erecting a dam across the
same, above their land, for raising a pond of water, and
from this artificial channels were cut, through the three
parts into which the land was divided, to the river below,
for working mills standing upon these several parcels. It
was held that, in the mode and extent of using these arti-
ficial streams through their respective lands, the owners
1 Palins V. Heblethwait, Skinn. 65 ; Luttrell's case, 4 Rep. 86.
2 Hazard v. Robinson, 3 Mason, 272, 277.
384 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
of the several parcels were to be governed by the same
rules as they would have been had each been a natural
stream.^
The case of Hurd v. Curtis may be referred to in the
same connection, though perhaps less positive in the state-
ment of the doctrine above proposed than might have been
desirable. In that case a single mill-privilege, sufficient for
six paper-mill powers and one fulling-mill power, belonging
in common, was divided by indenture, whereby the
[*311] owner *of the fulling-mill power was "to use the
water at all times without preference," all the rights
mentioned being considered " first rights." This " fulling-
mill right " was not, in terms, annexed to any particular
mill or mill-site, and it was accordingly held that it might
be applied at any convenient site, provided no increased bur-
den was imposed for race-ways or otherwise upon the other
proprietors of the common supply of the several mills. The
one to whom it was assigned had already applied it to oper-
ate a mill upon his own land by means of an artificial canal
across the same in which the water flowed to his mill.
After this, he conveyed the intermediate land through
which this canal passed, but made no reservation of any
right to maintain this channel and flow of water. But the
court incline to the opinion that, here being a mill in opera-
tion, carried by water flowing in this open channel, would
raise a reservation, by implication, of a right to maintain it,
and that the owner of the land could no more obstruct it
than if it had been a natural watercourse.^
And a similar doctrine was more definitely declared in
Frey v. Witman, where the owner of land on both sides of a
natural stream erected a dam thereon, and excavated an
artificial canal from the same along the bank of the stream,
to a mill below the dam, whereby the water of the stream
1 Townsend v. M'Donalil, 14 Barb. 460 ; Buddington v. Bradley, 10 Conn.
213.
- Ilurd V. Curtis, 7 Mctc. 94.
Sect. 4.] RIGHTS IN ARTIFICIAL WATERCOURSES. 385
was turned from its original channel, and flowed in this arti-
ficial one. He then sold the intermediate land to another,
and, among other things, subsequently stopped certain leaks
in the dam, by which a part of the water in the pond had
escaped and flowed down the original channel. It was held
that the purchaser of the land had no remedy for continuing
this diversion, since lie must have known, when he took his
deed, that the grantor did not intend to destroy his mill, and
that it could only be carried on by continuing to di-
vert the natural stream into this artificial *one, and [*312]
that the stopping of the leaks was but a part of the
reserved right to maintain the diversion.^
An instance of the rights of a proprietor of a natural
stream to the flow of the water therein attaching to an arti-
ficial one, was this. The plaintiff was lessee of a mill which
stood some distance from the bank of the stream upon
the lessor's land, and was carried by water taken from the
stream in A's land above the mill by a trench, and through
the land of the plaintiff's lessor who had, by an agreement
with A, cut this trench for the purposes of this mill. The de-
fendant, at a point above A's land, diverted the water of the
stream to the plaintiff's injury. And it was held, that as to
this trench and the water flowing in it, the plaintiff had the
rights of a riparian proprietor. And one of the Barons held,
generally, that a riparian owner may grant the flow of water
in a stream to one who is not a riparian proprietor, to be
used on the premises of the latter, which a higher proprietor
may not disturb by diverting it.^
18. Without intending to resume the discussion, how far
the granting of one of several tenements creates an easement
or servitude in either, by implication, it may be proper to
refer in this connection to a few more cases which go to illus-
trate the extent to which an artificial watercourse, when once
created and attached to another, as a principal estate, be-
1 Frey v. Witman, 7 Penn. St. 440.
'^ Nuttall V. Bran well, L. R. 2 Exch. 1.
25
386 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
comes like unto, or identical with, a natural one, in respect
to the rules by which its ownership is governed. Thus in
Pheysey v. Yickary, Parke, B., in speaking of wliat ease-
ments would or would not be extinguished by unity of seizin
and possession of the dominant and servient estates, says :
" If it is necessary to the safety of a house that water should
flow down a drain, the right of a watercourse through it is
reserved, by implication, in every grant of a house." ^
But the terms in which the artificial watercourse is created
are to be regarded in determining the extent and mode of its
use. Thus in Lee v. Stevenson, the plaintiff leased certain
premises to the defendant, and therein reserved the right to
lay a covered drain through these premises in order to drain
his other estate to a certain point. The defendant, after it
had been constructed, opened a drain from the leased prem-
ises into this drain. But as the drain was, by its terms, to
be for the use of the plaintiff's other premises, the court held
there was no implied right granted of making use of it for
the defendant's convenience. Although, had the right which
the plaintiff reserved to himself been general, to drain his
premises across those of the defendant, it would not have
given him such exclusive right, but the same might have
been used by the defendant.'-^
[*313] *19. Upon the principle that an artificial water-
course may acquire the incidents and qualities of a
natural one, it was early held that, if the owner of an estate
in fee, upon which there was a dwelling-house and spring of
water, wore to lay aqueduct pipes from the spring to the
house, for supplying the latter with water, and should sell
the house without the land, or the land without the house,
the right of the aqueduct would in the one case pass, and in
the other be reserved, by the grant, as an easement incident
to the house as the dominant estate.^
1 Pheysey v. Vickary, 16 Mces. & W. 484.
2 Lcc V. Stevenson, 1 Ellis, B. & E. 512.
3 Nicholas v. Chanihurliiin, Cro. Jac. 121 ; Pyer v. Carter, 1 Ilurlst. & N.
916 ; Sury v. Pigot, Vu\)\\. IGG ; Lanipman v. Milks, 21 N. Y. 505 ; Seymour v.
Lewis, 13 N. J. 443.
Sect. 4.] RIGHTS IN ARTIFICIAL WATERCOURSES. 387
But ill one respect tlicy are not identical, for, if the two
estates were to become again united in one owner, and he
were to cut off the aqueduct from the house, and were to
sell the same in that state, it would not carry the right to
the aqueduct, being an easement, and not a natural or ne-
cessary right.^
20. A land proprietor may restrict himself by grant or
covenant from changing the course of a stream through his
land ; ^ and after suffering the water to flow through his
land in a new channel for twenty years, he cannot change it
to the injury of mill-owners below, or of ripai-ian proprietors
above, who have enjoyed the benefit of its flowing in such
artificial watercourse.-^
The case of Hall v. Swift is one where a corresponding
right to receive the water upon his land by a new and arti-
ficial channel was held to be properly exercised by a land-
owner, so that a proprietor above him might not interfere
therewith. The stream in that case was a small one, and,
after leaving the defendant's land, its natural course
was *into a narrow lane, which separated the defend- [*314]
ant's and plaintiff's lands ; after running a short dis-
tance along this lane, it turned into the plaintiff's land. The
plaintiff changed its place of entering his land, so that it run
directly across this lane from where it left the defendant's
land. After this it ceased to flow at all for many years, but
began again, and had flowed in this new channel for nine-
teen years, when the defendant obstructed it. In an action
for such obstruction, it was held that the plaintiff's right to
have the water flow in this artificial channel was the same as
if it had been the natural one, and that he had lost no right
to insist upon the then present flow of the water by reason of
its having been suspended.*
1 Snry v. Pigot, Poph. 172; s. c, Palm. 446, citing Lady Browne's case ;
Robins v. Barnes, Hob. 131.
2 Northum v. Hurley, 1 Ellis & B. 665 ; Townsend v. M'Donald, 14 Barb. 460.
^ Belknap v. Trimble, 3 Paige, 577, 605 ; Dclaney v. Boston, 2 Ilarringt.
489,491.
* Hall V. Swift, 6 Scott, 167 ; s. c, 4 Bing. N. C. 381.
388 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
21. In the absence of an express grant, defining the extent
and mode of application to use of an artificial watercourse,
reference must be had to such use as has actually existed
for the requisite period of time to acquire a prescriptive
right to the same, and it hardly need be added, that the
owner thereof cannot change or increase the extent of such
enjoyment as against the riparian proprietors. So that if,
for instance, there be a surplus of water in the stream be-
yond what the owner of such artificial watercourse has
acquired a right to appropriate by having applied the same
to use, it belongs to the riparian proprietor, and the owner
of the trench or watercourse may not appropriate the same
by enlarging his trench or making use of an increased quan-
tity of water at his works.^
22. Though a land-owner may not divert, or unreasonably
obstruct, the water of a stream flowing through his land, so
as to deprive the proprietor below of the use of the same
through and along its accustomed channel, he may change
its direction by artificial channels through his own land at
his pleasure, provided he do not thereby diminish the
[*315] *beneficial use of the same to other proprietors.
Nor would a lower mill-owner have any better right
to disturb the owner of an upper mill, which was placed
within the owner's land upon an artificial channel, than if
placed upon a natural one. The rights of the mill-owner in-
cident to his ownership as riparian proprietor would be the
same in the one case as in the other.^ But if the land-
owner, having changed the direction of a natural stream
through his land, were to suffer others, who are entitled to
a right to the use of the water, to go on and expend money
in reference to such use, imdcr a belief that the new chan-
nel was to be a permanent one, and this were known to the
land-owner, he could not afterwards change the course of
1 Tyler v. Wilkinson, 4 Mason, 395, 405, 407.
2 Webster V. Fleming, 2 Humph. 518.
Sect. 4.] RIGHTS IN ARTIFICIAL WATERCOURSES. 389
the stream so as to injure the party who expended liis
money .^
23. In these and like cases, where one, who owns a water-
course in which another is interested, or by the use of which
another is affected, does or suffers acts to be done affecting
the rights of other proprietors, whereby a state of things is
created which he cannot change without materially injuring
another who has been led to act by what he himself had done
or permitted, the courts often apply the doctrine of estoppel,
and equity, and sometimes law, will interpose to prevent his
causing such change to be made. The reader will take, in
this connection, as a general principle of law, that if one
gives another a parol license to flow his land by a dam to be
built upon the licensee's land,^ or to build a dam upon the
licenser's land and the like, such license is revocable.^ But
in an early case in equity, where A had been at great expense
to divert a watercourse which put B to expense and
operated as a nuisance as to him, for which *he [*316]
brought his action at law, the court granted an
injunction against prosecuting the suit, because, while A was
engaged in causing this diversion, B stood by, and, so far
from objecting, encouraged him to proceed.*
24. A case is also stated in Middleton v. Gregorie, by
Butler, J., where it would seem that a mill-owner may not
always abandon, at his pleasure, a right to stop and divert
the flow of a stream by a mill-dam which he has acquired by
prescription or grant, if by doing so he will work an injury
to a riparian proprietor below him, against whom he shall
have acquired this right. He supposes the case of a riparian
1 Ford V. Whitlock, 27 Vt. 265 ; Norton v. Volentine, 14 Vt. 239 ; Wood-
bury V. Short, 17 Vt. 387 ; Townsend v. M'Donald, 14 Barb. 460; Devonshire
V. Eglin, 7 Eng. L. & Eq. 39 ; s. c, 14 Beav. 530.
2 Otis V. Hall, 3 Johns. 450. Contra, McKellip v. M'llhenny, 4 Watts, 317 ;
Lacy V. Arnett, 33 Penn. St. 169.
3 1 Washb. Real Prop. 399. Contra, Rerick v. Kern, 14 S. & R. 2G7 ; Hous-
ton V. Saffee, N. H. Rep. 15 Law Reg. 380.
* 2 Eq. Cas. Abr. 522; ante, chap. 1, sect. 3, pi. 43; Campbell v. M'Coy, 31
Peno. St. 263, adopts the doctrine of the 2 Eq. Cas. Abr. 522 ; post, sect. 25.
390 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
proprietor upon a stream, who should yield to a stoppage
and diversion of the water thereof for twenty years, by a
dam erected by another upon his own land above such ripa-
rian proprietor, and the latter should, in consequence, appro-
priate his land to a dry culture, such as corn or cotton,
which, before such diversion, could not have been cultivated
thereon. " Would the defendant " (the owner of the dam),
asks tlie judge, " have a right to cut his dam and destroy the
growing crop ? " " For all legal purposes," he answers,
" the plaintiff might, under such circumstances, have re-
garded his land as though tlie water had never flowed
through it. Indeed, I think he would have as much right
to enjoy his property in security, as if he had cultivated dry
land above ; and it is very clear that, where one has land
lying adjacent to a stream, and a proprietor below dams the
water back upon him, the former has a right of action to
abate the nuisance." ^
25. There is one other case which it may be proper to
notice, although it can hardly be regarded as settling many
principles applicable in those States where the same rules
of law as to executed licenses do not prevail as in Pennsyl-
vania, or the rules of equity are not equally liberal
[*317] in * modifying the common law in determining the
rights of suitors. The case is Le Fevre v. Le Fevre.
The owner of a parcel of land sold a part of it to the owner
of a tanyard, together with a right to draw water by pipes
laid in the earth along a designated line through the^ven-
dor's land, from a stream in his land to the vendee's tan-
yard. After these pipes had been laid and used for a con-
siderable time, it was orally agreed between the parties that
they should be taken up and laid in another place than the
line indicated by the deed, and it was accordingly done by
the vendee at his expense. After lying in this situation, and
being used for six or seven years in connection with the busi-
ness of the tanyard, the owner of the latter sold the same
1 Middletoii i;. Grcgoric, 2 Eicli. G31, 638.
Sect. 4.] RIGHTS IN ARTIFICIAL WATERCOURSES. 391
with the water right which he had purchased to the present
plaintiff. Soon after this the original vendor cut off the
pipes within his own land, and stopped the flow of water
therein to the tanyard, and for this the plaintiff' brought the
present action. The court held, that as the pipe was laid in
a manner indicated by the owner of the land, at the expense
of the owner of the tanyard, a court of equity would treat
the latter as owning the right to maintain it there, first, by
having incurred expense in laying it down under an agree-
ment with the land-owner that he should have such right,
and second, by his being in possession ; that the court would
require the land-owner to execute this agreement on his
part, and would have granted an injunction to prevent the
land-owner from prosecuting a suit at law for laying down
the pipe, and that courts of law would not suffer him, under
these circumstances, to take the law into his own hands by
cutting or destroying the aqueduct. To the suggestion that
the laying down of the pipe was done by a parol license only,
which was revocable, the court hold that, after having been
executed and expense thereby incurred by the licensee, it
could not be revoked so as to make the licensee a wrong-
doer. And they held it was competent to show by
parol that * another spot was substituted for that de- [*318]
scribed in the deed, as the same had been carried
into effect, and the original contract could not, therefore,
be insisted upon without working a fraud upon one of the
parties.
The court cited the case above mentioned from 2 Equity
Cases Abridged, and that of Short v. Taylor, said to have
been decided by Lord Somers, where Taylor in building a
house laid his foundation partly upon Short's land, he stand-
ing by and encouraging him ; and upon bringing an action
therefor, the Chancellor granted an injunction against his
proceeding with it. Silent acquiescence would seem from
this to have been regarded in the light of an express license,
but even that, by the ordinary rules of the common law,
392 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
might be revoked, though held otherwise in Pennsylva-
nia.^
26. Somewhat akin to the case of the change of a natural
current by substituting an artificial channel therefor, is that
of a change in such current by an extraordinary natural
cause, like that of a freshet, for instance. In one case a
stream had flowed first through the defendant's and then
through the plaintiff's land, until 1830. In that year the
course of the current was so changed by the effect of a
freshet, that from that time it ran wholly within the land
of the defendant, avoiding that of the^,plaintiff. In 1840, the
defendant changed the then course of the stream back to its
original line, so as again to run across the plaintiff's land,
for doing which the present action was brought.
The court, in giving an opinion, waive the question how
far the defendant might have restored the current back to
its original course before any act of acquiescence on his part.
But they held that, after so long an acquiescence, he was
not at liberty to do it. They refer to Hale's De Jure Maris ^
for the doctrine, " that if a river leaves its course,
[*319] * and sensibly makes its channel entirely in the lands
of A, the whole river belongs to A. Aqua cedit solo.^^
And they likened the case under consideration to that of a
quantity of earth suddenly carried away by a flood, or the
like, from one man's estate, and lodged upon that of another.
If the former suffers it to remain until " it cements and co-
alesces with the soil, the property is changed, and there is
no right to reclaim the soil."'^
In the last-cited case the court held that, if a river not
navigable change its course so as to cut off" a point of land,
leaving it an island in the stream, it would belong to the
1 Le Fevrc v. Lo Fevre, 4 Serg. & K. 241 ; ante, sect. 23 ; Short v. Taylor,
2 Eq. Ciis. Abr. 522. See ante, p. *19.
2 Ilargravc's Tracts, pp. 5, 6.
3 VVoodljury v. Short, 17 Vt. 387. See 2 Washb. Real Prop. 453, note ; Trus-
tees, &c. V. Dickenson, 9 Cash. 454; 1 Fournel, Traitc', &c. 157, § 38; Code
Nap., Art. 559.
Sect. 5.] SPECIAL LAWS AS TO MILLS. 393
original owner. If the bed of the stream gradually fdl up
by deposit, and the stream take a new channel, the new land
so formed belongs to the original proprietors of the stream
respectively, to its original thread. If land forms above
such island within the stream, not by accretions to such
island, and becomes an island in the stream, it would belong
to the riparian proprietors according as it was divided by the
filum aquce, which is the medium line between the banks or
natural water-lines on the shores, at the time the new land
was formed, irrespective of tlie relative depth of the water in
the different parts of the stream. ^ Soil gained by the grad-
ual and imperceptible accretion upon land bounding upon a
river or the sea, becomes the property of the land-owner, and
this extends to sea-weed accumulatino; thereon.^
^SECTION V. [*320]
SPECIAL LAWS AS TO MILLS.
1. Grounds upon which these statutes are based.
2. How far the acts of Massachusetts constitutionaL
3. The constitutionality of the Virginia system.
4. How far private property may be talien for private use.
5. Mill Acts of ]\Iassachusetts.
1 See Pratt v. Lamson, 2 Allen, 275 ; Carson v. Blazer, 2 Bin. 485.
The rules laid down in the Digest upon tlic subjects above treated of arc in
these words : " Quod si vis flumiuis partem aliquam ex tuo prsedio detraxerit,
et meo pra^dio attulerit, palam est earn tuam permanere. Plane si longiore
tempore fundo meo hteserit, arboresque quas secura traxerit, in meum fundum
radices egerint, ex eo tempore videtur meo fundo adquisita esse." D. 41, 1, 7, 2.
See also Inst. 2, 1, 21.
" Insula quae in niari nascitur (quod raro accidit) occupantis sit ; nullius
enim esse creditur. In ilumine nata (quod frequenter accidit) si quidera mediam
partem fluminis tenet, communis est eorum qui ab utraque parte fluminis prope
ripam prsedia possident, pro modo latitudinis cujusque prajdii, qi;;B latitudo
prope ripam sit. Quod si alteri parti proximior sit, eorum est tantum qui ab
ea parte prope ripam pra;dia possident." D. 41, 1, 7, 3. See also Inst. 2,
I, 22.
2 Emans v. Turnbull, 2 John. 313; Hargrave's Tracts, p. 28; Ford c. Lacy,
7 H. & Nomr. 156.
394 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
6. Apply only to injuries to land by mill-dams.
7. Extend to injuries below as well as above mills.
8. Do not extend to stoppage of v/ater by an upper mill.
9. Laws of Maine apply only where actual damage done.
10. Of fixing b}' the jurj' of the height the mill-owner may flow.
11. Parol release of damages by flowing.
12. The law authorizes construction of reservoirs.
13. Extends only to cases where mill-owner owns both banks.
14. Only extends to an occupied privilege of the owner.
15. Does not extend to tide-mills.
16. What is considei-ed an occupation of a privilege.
17. The first occupant has the prior right to a privilege.
18. Application of this doctrine. Case of Gary v. Daniels.
19. What constitutes a prior occupation.
20. An occupation requires both intent and act done.
21. Action lies for flowing above the prescribed height.
22. Unless height of flowing is fixed by grant.
23. Statute only protects actually existing mills.
24. Eflect of decay and abandonment of mill and dam.
25. What would be such abandonment.
26. Statute right to flow lands operates a license.
27. Statute confers no estate in the lands flowed.
28. Power to flow subject to public i-ight of passage.
29. Statute extends to flowing to the injury of drains.
30. Statute protects mills from being flowed.
31. Of remedy for flowing before actual damage done.
32. How far flowing adverse before actual damage done.
33. All mill acts of the States local in their effect.
34. How far the United States affected by State mill acts.
35. Mill Acts of Maine.
36. Mill Acts of Wisconsin.
37. Law of flowing in Rhode Island.
38. Virginia system of mill acts.
39. Laws as to mills in Missouri.
40. Of priority of rights under the Virginia sj'stem.
41. Laws as to mills of Arkansas and Kentuckj'.
42. Laws of Mississippi as to mills.
43. Laws of North Carolina as to mills.
44. Laws of Indiana, Illinois, and Florida.
45. All these laws strictly construed.
46. Statutes of Alabama and Maryland abrogated or repealed.
[*321] *1. The stringency with which the common law lim-
ited the rights of riparian proprietors upon streams of
water to such uses as it might be applied to, within and upon
the land of each proprietor, and the importance of mills to
the comfort of a community, must necessarily have been at-
Sect. 5.] SPECIAL LAWS AS TO MILLS. 395
tended with great inconvenience to new settlers in a coun-
try, like the colonists of America, where, from the nature of
the case, nothing like prescriptive rights could have been
acquired for many years after their settlement. In a colony,
moreover, where the loss of a few acres of land bore but a
slight proportion to the value and importance of grist and
saw mills, it could hardly have been otherwise than that
some policy should be adopted better suited to meet the
condition of such a people than the rules of the common
law, which had their origin and application in a country so
different in its physical as well as its social capacities and
wants. It is, accordingly, historically true, that, from an
early period in Massachusetts, the common law as to the
rights and liabilities of mill-owners has been essentially
modified by statute. Partly by these statutes, and partly by
the construction of courts in applying existing laws to the
growing exigencies which they were designed to meet, a
system of Mill Laws, as tliey are called, quite complete in
itself, has grown up in Massachusetts, and forms substan-
tially also the law of Maine and of Wisconsin upon the same
subject. Other and distinct systems in respect to taki^ig
and appropriating lands for mill purposes have been adopted
in other States. So that to treat of this subject with any con-
siderable degree of completeness requires that an outline, at
least, of those systems should be presented to the reader.
In one sense, so far as the mode and extent of making
use of the land of one proprietor by another for his own
benefit as a mill-owner is concerned, when tried by the
rules of the common law, it is a system of easements and
servitudes. But they are servitudes and easements
*created by law instead of being acquired by grant [*o22]
or prescription. Tliis remark applies with more pro-
priety to a system like that of Massachusetts, where the mill-
owner is only authorized to occupy, by flowing the same, the
land of another for the purpose of operating a mill, which,
as well as the dam belonging to the same, are erected on
396 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. 111.
his own land ; but the law does not confer upon him any
estate in or title to the land thus occupied. Whereas, under
what may be called the Virginia system, the mill-owner ac-
quires a title to so much land as shall be taken under process
of law for the purposes of a mill, including, it may be, the
land upon which a portion of the dam is placed, as well as
such parts thereof as may be flowed thereby.
2. This authority by a general law, under which one man
is empowered to take and occupy the land of another for his
own profit and advantage, has been questioned on constitu-
tional grounds. The question has been, incidentally, dis-
cussed in various forms by the courts of Massachusetts, in
which it has, sometimes, been treated as a mere statute
remedy for a wrong, assuming that the act of occupancy
was a common-law wrong. But in whatever form it is
viewed, it is not to be disguised, that the statute does au-
thorize one man not only to recover damages in a particular
manner for the act of flowing his land by another, but it
authorizes the latter to continue and maintain the nuisance
against the will of the owner, in the same manner as if he
wgre the true owner of an easement in the estate. And
every pretence upon which this can be deemed to come within
the principles of the Constitution must fail unless it can
fairly be brought within the broad doctrine that private prop-
erty may be taken for the public good, upon a compensation
being had therefor. A recurrence to a few of the cases
where the matter has been discussed may be sufficient for
the present. In Boston and Roxbury Mill-Dam Cor-
[*323] poration v. Newman, the court held the act *creating
tlic company, and authorizing them to flow the land
of others, so far a public enterprise as to be within the intent
of the Constitution, and they held, further, that not only
must the land-owner submit to having his land flowed for the
purpose of creating a head of water for the plaintiffs' mill,
but that he might not fill it up, and thereby diminish the
size and cai)acity of their pond, although he retained the fee,
Sect. 5.] SPECIAL LAWS AS TO MILLS. 397
and the company only had the casement of a right to flow.
But the court, at the same time, admit that the mill-owner
is under no corresponding obligation to grind for any one
against his will. In that case, the several laws upon the
subject are referred to by Putnam, J., in giving the opinion
of the court, and the constitutional grounds on which they
may be considered to rest are examined.^
The first of these statutes was passed in 1718, expressly re-
citing that " the building of mills is serviceable for the public
good and benefit to the town," and that, in " raising a suit-
able head of water for that service, it hath so happened that
some small quantity of lands or meadows have thereby been
flowed." And in order to prevent a multiplication of suits
for such an injury, the statute authorizes a continuance on
the part of the mill-owner to flow the land, and provides for
a mode of assessing damages for the same by a jury, upon
complaint of the land-owner, to be annually paid. This re-
cital clearly indicated the ground upon which the statute was
based, namely, an act on the part of one party designed to
promote a manifest public benefit, in effecting which an un-
intentional infringement of the legal rights of another had
been occasioned. And while it provided compensation for
the private injury, it authorized the act to be continued as
something required by the public good.^ And when the
statute of 1795 was passed, extending the right to flow any
lands of another for the pvirpose of raising a suita-
*ble head of water for working a mill, the language [*324]
of Parker, C. J., in Stowell v. Flagg, was undoubt-
edly justified, that " he could not help thinking it was in-
cautiously copied from the Colonial and Provincial Acts,
which were passed when the use of mills, from the scarcity
of them, bore a much greater value, compared to the land
used for the purposes of agriculture, than at present." ^
1 Boston and Roxbury Mill-Dam Corporation v. Newman, 1 2 Pick. 467.
2 Col* Laws, 404.
3 Stowell V. Flagg, 11 Mass. 364.
398 THE LAW OF EASEMENTS AND SEKVITUDES. [Cii. III.
The statute, in the case last cited, is regarded as one of
remedy alone. Other views of it are presented in other
cases, as, for instance, in Bates v. Weymouth Iron Co.,^ by
Shaw, C. J., and in Williams v. Nelson,'-^ by the same judge.
The case of Hazen v. Essex Company ^ was one where the
general law authorizing mill-owners to flow the lands of
others was extended by a special act to the flowing back
water upon an existing mill to its destruction, by means of a
dam across the Merrimack River, for the creation of an ex-
tensive mill-power ; and the act was held to be constitu-
tional, as coming within the power of the legislature to pass
acts required by the public good. The language, however,
of the court in Maine is to a certain extent undoubtedly war-
ranted by the whole history of the " Mill Acts " of that State,
as well as of Massachusetts, which, in the sequel, will be
found to have practically carried the doctrine to the length,
that any one wishing to create a mill-power for his own use
and emolument, may appropriate the mowing, or tillage, or
woodland of another to such extent as he pleases, and exer-
cise a perpetual easement over the same, which in effect de-
stroys all valuable property therein of the owner of such
land, upon paying such sum in damages as a jury shall esti-
mate. " The Mill Act," says Rice, J., " as it has existed
in this State, pushes the power of eminent domain
[*325] * to the very verge of constitutional inhibition. If
it were a new question, it might well be doubted
whether it would not be deemed to be in conflict with that
provision of the Constitution, — private property shall not
be taken for public uses without just compensation, nor un-
less the public exigencies require."*
1 Bates V. Weymouth Iron Co., 8 Cush. 548, 553. See also Murdock v.
Stickncy, Ibid. 113.
- Williams v. Nelson, 23 Pick. 141.
3 llazcn V. Essex Company, 12 Cush. 475.
* Jordan j\ Woodward, 40 Me. 317, 323. Sec 2 Am. Jurist. 25-39. Shmv,
C. J., in Murdock v. Stickncy, supra, expressly denies that the statute rests
upon the rifj^ht of eminent domain, or that it is in any proper sense a taking
of the projicrty of the owner of the land.
Sect. 5.] SPECIAL LAWS AS TO MILLS. 399
The most sensible ground upon whicli these statutes are
to be placed seems, after all, to be furnished in Talbot v.
Hudson, in which the court hold that it is as competent for
the legislature to authorize a body of land-owners to abate
the dam of a mill-owner, if the public good requires it, and
thereby relieve their lands from being flowed, as it is to au-
thorize a mill-owner to flow them. The principle applicable
and governing in all these cases is, that private interests
must yield to public exigencies, and that private property,
in such cases, may be appropriated, if compensation therefor
is provided.
The opinion of the court was given by Bigelow, C. J.,
and the following extracts will present the grounds on
which these statutes rest in as satisfactory a light as could
well be desired. In this case, the legislature had passed an
act authorizing the removal of a mill-dam in consequence
of the alleged extent of the injury thereby occasioned to the
lands of riparian proprietors upon the stream above it. The
constitutionality of the act was denied, but sustained by the
court.
" If land is taken for a fort, a canal, or a highway, it
would clearly fall within the first class (public use). If it
was transferred from one person to another, or to several
persons, solely for their peculiar benefit and advantage, it
would as clearly come within the second class (private use).
But there are intermediate cases where public and
* private interests are blended together, in which it [*o26]
becomes more difficult to decide within which of the
two classes they may be properly said to fall. There is no
fixed rule or standard by which such cases can be tried and
determined. Each must necessarily depend upon its own
peculiar circumstances In a broad and comprehen-
sive view, such as has been heretofore taken of the construc-
tion of this clause of the Declaration of Rights, everything
which tends to enlarge the resources, increase the industrial
energies, and promote the productive power of any consider-
400 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. Ill
able number of the inhabitants of a section of the State, or
which leads to the growth of towns and the creation of new
resources for the employment of private capital and labor, in-
directly contributes to the general welfare, and the prosper-
ity of the whole community. It is on this principle that
many of the statutes of the Commonwealth, by which pri-
vate property has been heretofore taken and appropriated to
a supposed public use, are founded One of the earli-
est and most familiar instances of the exercise of such a
power under the Constitution is to be found in the statute
for the erection and regulation of mills And it is be-
cause they thus lead, incidentally, to the promotion of one
of the great public industrial pursuits of the Commonwealth
that they have been heretofore sanctioned by this court, as
well as by the legislature, as being a legitimate exercise of
the right of eminent domain justifying the taking and appro-
priating of private property." ^
Whatever, therefore, might have been thought of statutes
like these in their application to particular cases, if the ques-
tion were now raised for the first time, their validity may be
assumed to rest upon premises at once well founded and in-
telligible.2
3. The Virginia system seems to be open to more
[*327] obvious *objections upon constitutional grounds than
that of Massachusetts, though the same broad con-
struction which authorizes the appropriation of the use of
the property of one man for the benefit of another would
seem to reach the taking and appropriating of the property
itself. The statutes of Virginia, and of the States which
have followed her in their policy, provide, in general terms,
that one owning land upon one side only of a stream may,
by process of law, acquire a title to sufficient land upon the
1 Talbot V. Hudson, 24 Law Rep. 228. See also Commonwealth v. Essex Co.,
13 Gray, 239, 2b\ ; Chase v. Sutton Mg. Co., 4 Cush. 152, 169.
2 Newcomb v. Smith, 1 Chand. 71 ; Pratt v. Brown, 3 Wis. G03 ; Fisher v.
Iloricgn, &c. Co., 10 Wis. 351.
Sect. 5.] SPECIAL LAWS AS TO MILLS. 401
opposite side on which to erect his dam and create a water-
power. The courts of Alabama in 1859 pronounced a stat-
ute of this character unconstitutional, although it had stood
upon the statute-book of that Territory and State since 1812,
though, had this power been limited to grist-mills, which by
§ 1112 of the Code of tliat State are declared to be public
mills if they grind for toll, the statute might have been
deemed to come within the provisions of the Constitution.^
So that the question in all these cases turns upon the
point whether the use for which the statute authorizes the
taking by one man, or a body of men, of the property of an-
other is a public one or otherwise. This question has been
raised in respect to other involuntary easements in the lands
of individuals, such as the laying out private ways over the
land of one man for the benefit of the estate of another,
which is provided for in the statutes of several of the States.
And in some of them, tlie power to do this has been denied,
as being against the provisions of their Constitutions. Such
has been the case in New York, Tennessee, and Alabama.^
4. If the act authorizing the taking of such property can
be brought within the proper exercise of the right of eminent
domain, it ceases to be one of questionable validity.
*But it adds notliing to the validity of an act, if it [*328]
transcends this limit, that it makes provision for a
full compensation to the owner on the part of him who shall
have attempted to appropriate the property of another to his
own personal benefit.^
The doctrine of the court of New York, in Heyward v.
Mayor of New York, is believed to be the sound one, that
the right to take private property for public uses is an inher-
ent attribute of sovereignty, which exists in every independ-
ent State. But no man can have his property taken from
1 Moore v. Wright, 34 Ala. 311, 333.
2 Taylor v. Porter, 4 Hill, 140; Clock v. White, 2 Swan, 540; Sadler v.
Langham, 34 Ala. 311.
3 Varick v. Smith, .5 Paige, 137, 159; Matter of Albany Street, 11 Wend.
149 ; Bowman v. Middleton, 1 Bay, 252 ; 2 Kent, Comni. 276 ; Ibid. 340.
26
402 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
him without his consent, and given to another, hy mere legis-
lation.^ " We know of no case in which a legislative act to
transfer the property of A to B, without his consent, has
ever been held a constitutional exercise of legislative power
in any State in the Union. Per Story, J?
And where the right of eminent domain has been once
exercised by taking one's land for purposes of a street or high-
way, and a railroad company are then authorized by act of
legislature to lay their way over the land so taken, it is such
an injury to the owner of the fee of the soil, as to entitle him
to new damages by the creation of this new easement over
his land.'5
But it was held otherwise in case of locating a horse rail-
road over a public highway in Connecticut.^
It should be remarked, in passing, that, so far as these
laws operate to create what answers to a servitude upon one
estate in favor of another, the rights and obligations of the
owners of the dominant and servient tenements are governed
by the lex loci rei sUce.^
5. With this brief glance at the principles upon which the
acts of legislation of the several States with which they have
seen fit to override the rules of the common law in this re-
spect are to be sustained, it becomes proper, in the next
place, to give an outline of these, although it would obvi-
ously be unsuited to a work like the present to enter with
any great minuteness upon the practical detail of the modes
in which these systems have been carried out in their opera-
tion.
But it should be borne in mind that, in all cases where the
party is entitled to his damages upon complaint under the
" Mill Acts," his common-law remedy is taken away.^
1 Hey ward v. Mayor of N. Y., 3 Seld. .314. ■
2 Wilkinson v. Leland, 2 Peters, 627, G58.
8 Inilay v. Union B. K. R., 26 Con. 249 ; People v. Law, 22 How. P. C. 109 ;
Wetmorc v. Law, ib. 130.
* Elliot V. Fair Haven R. R. 32 Con. 579.
6 3 Burge, For. & Col. L., 448.
^ Vcasie v. Dwinel, 50 Maine, 485 ; Fiske v. Framingham Co., 12 Pick. 69.
Sect. 5.] SPECIAL LAWS AS TO MILLS. 403
Beginning with that of Massachusetts, which has been in
operation in most respects in Maine, both before and
since *her separation from the former State, and has, [*329]
to a considerable extent, been adopted in Wisconsin,
its general provisions may be stated in a summary form. It
is made lawful for any one to erect a dam upon his own
land, across a stream not navigable, for the purpose of rais-
ing a head of water for operating a mill, and to maintain the
same, provided he do not thereby injure any mill lawfully
existing upon the same stream above or below such dam,
nor any mill-site upon the same on which a mill or mill-dam
has been lawfully erected, unless the right to maintain the
same shall have been lost or defeated by abandonment or
otherwise. Nor can he erect such dam to the injury of a
mill-site which has already been occupied, provided the
owner thereof shall within a reasonable time after commenc-
ing such occupation complete a mill and put the same in
operation, for the working of which the water of such stream
shall be aj^plied. But in Wisconsin, the term " navigable,"
as applied to a stream, does not imply that it is affected by
the tides, but is capable of being navigated for purposes of a
highway, and declared to be such by statute, as Rock River,
for instance. 1
And to avoid all question of constructive authority, the
statute denies to any one a right to place any part of his
mill or dam upon the land of another, except by his grant or
permission. 2
The same statute provides for an assessment of damages
in favor of any one whose lands shall be flowed or damaged
by the erection and maintenance of such dam and mill, and
authorizes the jury which shall be impanelled to assess the
same, to fix the height to which the dam and flowing may be
maintained, and during what parts of the year the owner of
1 Cobb V. Smith, 16 Wise. 6G1. See post, p. *397 ; Ward v. Ilustis, 17 Wis.
416.
2 Gen. Stat. c. 149.
404 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
the mill may flow the lands of the complainant. Various
provisions are made for carrying out the purposes of the
statute, such as giving the land-owner a lien upon the mill
and dam for the enforcement of his damages, and for in-
creasing the amount in certain cases, while the common-law
remedy for such injury is taken away, and a right of tender
is given to the mill-owner. And to save a multiplici-
[*330] ty of *complaints, two or more land-owners, though
not jointly interested in the parcels flowed, may join
in one complaint, if damaged by the same mill-dam.
While these provisions, so adverse in many respects to the
notions of the common law, have furnished a guide to the
courts in determining the respective rights of the mill and
the land-owner, it has been necessary to resort to many of
the principles of the common law in applying the letter of the
statute to particular cases, so that a system has been built
up here which combines them both to no inconsiderable ex-
tent, as will appear by referring to the cases which have
been decided by the courts from time to time.
6. The statute in the first place only covers injuries to
land occasioned by means of a mill-dam and flowing the
same, and does not extend to injuries to other property than
land, nor to damages occasioned by any^other means than
raising water by a dam for mill purposes.^ So that if the
flowing of one's lands occasions offensive smells, and thereby
diminishes the value of other lands in the neighborhood of
those flowed, the remedy is not under the statute, but by an
action at the common law, since the statute does not author-
ize what would be a private nuisance, beyond the mere act
of flowing of land.2
7. But where land is flowed by means of a mill-dam,
it matters not whether it be situate above or below the dam ;
it is equally within the statute in either situation.^
1 Palmer Co. v. Ferrill, 17 Pick. 58 ; Thompson v. Moore, 2 Allen, 350.
'■^ Eames v. N. E. Worsted Co., 11 Mctc. 570; Murdock v. Stieknev, 8 Cush.
116 ; llookc V. Perkins, 14 Wis. 82.
8 Gilc V. Stevens, 13 Gray, 146; Shaw v. Wells, 5 Cush. 537; Gen. Stat,
c. 149,^ 4.
Sect. 5.] SPECIAL LAWS AS TO MILLS. 405
8. Under the provision restricting a mill-owner from
doing anything under the mill acts injurious to an existing
mill, it was held in Maine, under Rev. Stat. c. 126, § 2,
that where one erected a mill above an existing one, and
adopted such machinery therein that the water ap-
plied *in carrying the same was not sufficient in [*331]
quantity to carry the works in the prior mill, the
owner's remedy, if any, for being deprived of his accustomed
flow of water, was by an action on the case, and not under
the statute for regulating mills.^
9. In one respect, there is an important practical diver-
sity between the statutes of Maine and Massachusetts on this
subject. In Maine no complaint lies until the flowing occa-
sioned by the dam shall have caused some actual damage to
the land-owner, and, as the common-law remedy is super-
seded by the statute in such cases, such land-owner is with-
out remedy until actually damaged. This, as will hereafter
appear, has an important bearing upon the question, when
the party flowing begins to acquire a prescriptive right to
maintain it by an adverse enjoyment of the same. In Mas-
sachusetts, on the contrary, it is no answer to the complaint
of the land-owner for the assessment of damages for flowing
the same, that no actual damage has yet been sustained. ^
If, therefore, under the Massachusetts law, a mill-owner
claims a right by prescription to flow the land of another,
who seeks to recover damages under the provisions of the
statute, he ought to avail himself of such right by denying
that of the land-owner to have a warrant issue for the assess-
ment of damages. 3
10. And where a jury, in fixing the height to which the
mill-owner might flow, established the height of the dam by
1 Wcntworth v. Toor, 38 Me. 243.
2 Hathorn v. Stinson, 10 Me. 224 ; s. c, 12 Me. 183, 188; Nelson v. Butter-
field, 21 Me. 220; Seklensparger v. Spear, 17 Me. 123; Wood v. Kelley, 30
Me. 47; Gen. Stat. c. 149, § 8-; Williams v. Nelson, 23 Pick. 141 ; ante, chap.
1, sect. 4, pi. 33; post, pi. 31.
3 Wilmarth v. Knight, 7 Gray, 294.
406 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IU.
certain marks, it was held that he might flow as high as a
dam, maintained at the prescribed height, would flow.^
But where the mill-owner had a right to raise the
[*332] water *two inches above a certain bolt, it was held
that his dam must be so built as not to flow the
water above that point.^
11. Though it is a familiar doctrine, that an easement
in another's land can only be acquired by grant, while a
parol license to occupy another's land is in most of the
states revocable at pleasure, under the construction given to
these mill acts, which authorize a mill-owner to occupy the
land of another by flowing the same, if the latter release his
damages therefor, though by parol, it will bar him of all
claim or right to maintain any complaint for such injury. It
was accordingly held that where, as an inducement to the
owner of a mill-privilege to go on and occupy the same by a
mill, a land-owner, whose land would thereby be flowed,
orally agreed not to claim damages therefor, if such mill
were erected, it was a bar to any claim in his favor for such
damages, not in the light of a grant of a right to occupy
lands, but of a parol release of a claim to recover a certain
amount of money .^
But such agreement would not run with the estate so as
to bar the claim of the grantee of the land-owner for any
flowing done by the mill-owner after such grant.^
12. It is, however, proposed to consider this statute only
so far as it bears upon the right to enjoy what answers to
an easement thereby created in another's land, and not to
enter into any detail of the forms of proceeding or the
mode of enforcing compensation for the injuries thereby oc-
casioned.
It not only authorizes one who owns land upon both sides
1 Wilmarth v. Knight, 7 Gray, 294.
2 Winklcy v. Salisbury Mg. Co., 14 Gray, 443.
8 Smith V. Goulding, 6 Gush. 154 ; Seymour v. Carter, 2 Mete. 520; Clement
V. Durgin, 5 Me. 9; Short v. Woodward, 13 Gray, 86.
* Fitch V. Seymour, 9 Mete. 462.'
Sect. 5.] SPECIAL LAWS AS TO MILLS. 407
of the stream on which to erect a mill and dam to do so, and
thereby raise a head of water in immediate connection with
such mill, but to do this by way of a reservoir at any dis-
tance above his mill, upon the same stream, and
there *pen up the water for the use of his mill, as [*333]
he shall have occasion to draw the same.^
13. But the courts restrict these statutes within a pretty
narrow construction of their terms, and hold that this right
of erecting dams for reservoirs must be upon the same
stream upon which the mill is situate. And therefore that,
where one owning land on two streams built his mill upon
one, and erected a dam for a reservoir upon the other, and
conducted the water of his reservoir by an artificial chan-
nel to the pond of his mill, and by the erection of his dam
flowed land of another, he was not justified in so doing by
the statute relating to mills, but was liable as at common
law.2
So where a mill-owner having a reservoir dam above his
mill upon the main stream let out the water thereof into the
plaintiff's meadow by an artificial channel, different from
that through which it naturally flowed, and thereby flooded
the meadow, he was held liable in an action of the case, and
not protected by the mill laws, in making such use of the
water to the plaintiff's injury .^
14. It will, moreover, be seen that, so far from its confer-
ring a general right upon a mill-owner to flow the lands of
others, there are several prerequisites to be established be-
fore this right can be exercised. And first, the person claim-
ing it must have a water-privilege on which he has erected
a mill and mill-dam. Thus, where the owner of one half
the stream erected a dam across the same for a mill, and
abutted and built one end of the dam upon the land of the
opposite owner, without his consent, and the latter after-
1 Wolcott IMg. Co. V. Upham, 5 Pick. 292 ; Fiske v. Framingham Mg. Co.,
12 Pick. 68; Shaw v. Wells, 5 Cush. 537 ; Nelson v. Butterficld, 21 Me. 220.
- B.ites V. Weymouth Iron Co., 8 Cush. 548.
8 Fiske V. Framingham Mg. Co., 12 Pick. 68.
408 THE LAW OF EASEMENTS AND SERVITUDES. [Cif. IIL
wards built a dam on liis own land below, whicli in that
place extended across the stream, and flowed out the up-
per dam, it was held that the upper mill-owner had
[*334] *no right to maintain his dam against the consent
of the other party, and that the latter was justified
in erecting his dam, and submerging that of the upper own-
er, or he might have taken down the dam, so far as it stood
on his land.i
So if there has been an ancient mill upon a mill-privilege,
one may not erect a mill and dam below it and submerge it,
although no mill may at the time be standing thereon, pro-
vided the owner of such upper privilege has not abandoned
it as a mill-privilege.^
And if one erects a mill-dam on his own land, which flows
back water upon an existing mill, the owner of the latter
may enter upon the premises of the former, and abate so
much thereof as may be necessary to remove the impedi-
ment thereby occasioned.^
So where one erected his mill on the stream and his dam
for working it, and another owner upon the same stream
then erected his upon his own land above it, the first could
not, by afterwards raising his dam, increase the flowing so
as injuriously to affect the working of the upper mill.*
15. It may be remarked, in passing, that the statute does
not extend to mills worked by tide-power, or what are called
tide-mills.^
16. The limitations above mentioned are easily and well
defined, in questions between new and actually existing
mills, and especially what are called ancient mills. But a
class of cases has arisen, which are not entirely free from
1 Jewell V. Gardiner, 12 Mass. 311.
2 French v. Braintree Mg. Co., 23 Pick. 216 ; Hatch v. Dwight, 17 Mass. 289.
8 Jewell V. Gardiner, 12 Mass. 311 ; Hodges v. Raymond, 9 Mass. 314; post,
chap. G, sect. 4, pi. 1.
* Sumner ?;. Tileston, 7 Pick. 198,203; Gary v. Daniels, 8 Mete. 466; Vea-
sie V. Dwinel, .50 Maine, 486.
' Murdock v. Stickney, 8 Gush. 113.
Sect. 5.] SPECIAL LAWS AS TO MILLS. 409
difficulty, when applying to them the rules of the statute.
And these are, where the owner of a mill- privilege may, for
instance, have taken steps towards occupying it ; but before
he shall have had an existing mill thereon, another
owner on * the same stream below him, by the exer- [*335]
cise of greater despatch, or the completion of a cheap-
er and more easily erected structure, has actually put a mill
in operation in advance of the first. One may, for example,
be an extensive cotton manufactory, the other a shingle-mill.
The question in such cases has been, which of the two shall
have the prior right to the privilege, and may the lower mill-
owner flow the land of the upper proprietor to the sacrifice
of his rights as a mill-owner ? Under the law as it stood
before the revision of the statutes in 1836, it had been held
that, if the upper proprietor had actually built or was build-
ing a mill on his privilege, the lower proprietor could not
erect a new dam or raise an old one to its injury, for the prin-
ciple seems to be the same, so as to destroy the upper mill-
privjlege, under the protection and authority of the mill acts.^
By an alteration in phraseology introduced into the revised
statutes, nothing but an existing mill could prevent one from
erecting a dam and mill, and flowing the land of another
above him ; and in one case it was held that he might do
this, although the upper land-owner had begun to erect a
dam and mill upon his own premises before the lower owner
had begun the erection of his works.^
But, by the present form of the statute, no one can erect a
mill-dam whereby to flow the land of another to the injury
of a mill-privilege already occupied, provided the owner
thereof completes such occupation by putting a mill in
operation upon the same, within a reasonable time after
commencing such occupation.^
17. In the application of this doctrine to practical uses,
reference has to be still had to some of the familiar prin
1 Bijielow V. Newlmll, 10 Pick. 348.
2 Baird v. Wells. 22 Pick. 312.
2 Veasie v. Dwinel, 50 Maine, 485.
410 THE LAW OF EASEMENTS AND SERVITUDES. [Cir. III.
ciples of the common law. Before any mills are erected,
the right of each proprietor is the same, and that is a right
to appropriate the power of the stream by the actual erection
of a mill. The necessary consequence is, that, when
[*336] *one proprietor under the common right has in fact
appropriated the power, the proprietor below is so
far restricted in his right to do the same that he cannot
erect a mill on his own land, and flow back water to the
destruction of the mill already erected by authority of law.^
18. But perhaps the best exposition of the nature and
effect of this statute, considered in connection with the com-
mon-law rights of riparian proprietors upon a stream, may
be found in the opinion of Shaw, C. J., in Gary v. Daniels.
If, for instance, the descent of the water of a stream through
the lands of several successive owners is such as only to sup-
ply power for a single mill-privilege, the proprietor who first
erects his dam for the purpose of availing himself of this
mill power, may claim it as against the proprietors, whether
above or below him, upon the stream, and his prior occu-
pancy gives him a prior title to the use of the water for that
purpose. Though such an occupancy deprives the upper pro-
prietor of the right to do the same on his own land which he
otherwise would have had, it is damnum absque injuria. The
proprietor below could not, after such erection, raise a dam
upon his own land so as thereby to obstruct the wheels of
the prior occupant above. Up to the time of this occupation,
these rights were equal and the same. But when the first
occupant had made an appropriation of the use, to that ex-
tent he acquired a priority with which the others had no
right to interfere.
But this applies only to the extent to which he shall actu-
ally have appropriated and occupied the stream. All the
surplus power may be occupied and appropriated by another
riparian proprietor for mill purposes, in the same manner as
1 Gould V. Boston Duck Co., 13 Gray, 442, 450 ; Ilazen v. Essex Co., 12
Cush. 475; Kelly v. Natoma Water Co., 6 Cal. 105.
Sect. 5.] SPECIAL LAWS AS TO MILLS. 411
the first bad a right to occui)y the part he did. Nor can the
first proprietor, afterwards, raise his dam to the injury of the
second occupier.
*As to such surplus, the second occupier becomes [*337]
the first, with all the rights to the same of a first
occupant.
The upper occupant, though second in point of time, may
place his mill so low that the pond of the lower mill shall
flow upon its wheel, if he pleases. But he cannot, in that
case, complain of the lower mill for setting bacli water upon
bis works.
So if the occupant leave a surplus of power unappropri-
ated at first, he may occupy it at any subsequent time, by
raising his dam or otherwise, if no one shall, in the mean
time, have occupied it.^
19. While the effect to be given to a prior occupation of
a mill-privilege may be considered as settled, there may ob-
viously arise, at times, nice questions as to precedence of
right between the owners of two mill-privileges upon the
same stream, where only one can be practically used, and
each has undertaken to gain this right by prior occupancy.
Thus cases have occurred where two parties have simulta-
neously, or nearly so, begun to do acts in view of occupying
a privilege upon their respective lands. In one case, one
proprietor began ii> the morning to cut brush growing upon
the spot on which he was about to erect a dam, and to drive
stakes at different points on each side of the stream, to in-
dicate the position and height of the intended dam, and an
upper owner began at noon to dig stones upon the bank of
the stream, and to place them in the bed of the stream, as a
part of the foundation of his dam. Both parties proceeded
with all reasonable despatch to complete their respective
dams, and the same were in fact only a few rods apart. In
an action by the upper owner against the lower one for flow-
ing his land and destroying his occupied mill-privilege, the
1 Gary v. Daniels, 8 Mete. 466, 477.
412 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
question was made, wliicli of the two had the l^etter right by
prior occupancy. A case substantially like this was argued
before the Supreme Judicial Court in Worcester,
[*338J October, *1833, and the opinion of the court, given
by Shaw, C. J., though never reported, was to the
effect that the one who first commenced work, vpnn the soil,
either by cutting trees, or digging stones or earth, for the
purpose of actually building a dam, may be deemed to have
first begun his dam. But if the acts of cutting brush, set-
ting stakes, &c., were for the purpose of ascertaining wheth-
er there existed a fall of water, &c., or whether the situation
was a favorable one for the erection of a mill, and the like,
it would not be a beginning. These acts were stated as
serving to point out the line of demarcation where the acts
of building began. That the stakes were driven might, or
might not, be evidence. Was it a part of the operation of
building-? If it was, it would be a beginning. If not, but
to show his intention, it would not have that effect.^
20. It may further be remarked, that no preference which
may be acquired by an actual appropriation of a water-power
can be gained by an intention to appropriate it, however
strongly expressed. Nor will the doing of an act which
would, if so intended, be a part of the act of appropriation
of a power, such as digging a trench in which to conduct
water, operate as an appropriation of the same, unless done
with an intention to have that effect.^ But if one begins a
dam in order to appropriate a water-privilege, it will give
him a prior right to the same in preference to one who sub-
sequently commences a dam, though he completes it before
the first is finished,'^
If the appropriation be an actual one, and to some useful
purpose, it secures the right so far that it may not be in-
fringed by a subsequent appropriation by others.* But the
1 Bemis i'. Upliam. See Kimball v. Gearhart, 12 Cal. 27.
2 Maeris v. BickTiell, 7 Cal. 261.
3 Kelly V. Natoma Water Co., 6 Cal. 105.
* M'Kinney v. Smith, 21 Cal. 381.
Sect. 5.] SPECIAL LAWS AS TO MILLS. 413
limit of the claim wliicli is secured by an appropriation, is
the extent to which it is actually made. If there is any sur-
plus, it is open for others to avail themselves of it.^
21. Among the restrictions imposed by the statute upon
the right of a mill-owner to flow the lands of a riparian pro-
prietor, is that which has already been mentioned, by which
it is in the power of a jury to prescribe how high, and during
what portion of the year, the flowing may be sustained. And
if in violation of this limitation the mill-owner shall
flow to *a higher point, or during a greater portion [*339]
of the year than that prescribed by such verdict, he
will, as to such excess, be subject to the common-law rights
and remedies of such land-owner for the injury thereby oc-
casioned.2
22. But if one acquires a right to flow the land of another
during certain portions of the year, or to a definite height
by grant, and transcends this right, he will for such excess
be subject to the provisions of the mill act for the recovery
of the damages thereby occasioned.-^ But it is left doubtful
whether a party who has taken a conveyance defining his
right to flow as to its extent, or has agreed in a legal form as
to the height to which he shall flow as a substitute for a
legal process, can, afterwards, increase the flowing, and claim
for it the protection or benefit of the mill acts of Massachu-
setts.^
23. Another important restriction in the right of flowing
lands is, that the statute extends its protection only to such
as are owners of existing mills, and exercise the right for the
use and operation of such mills. The consequence is, that
if one has a dam, but no existing mill, or if, having had such
mill, he abandons it, but retains his dam, and lands of third
1 M- Kinney v. Smith, 21 CaL 381 ; Ortman v. Dixon, 13 Cal. 33. ,
2 Hill V. Sayles, 12 Mete. 142; s. c, 4 Cusli. .')49 ; Johnson v. Kittredge, 17
Mass. 76, 80 ; Wiiikley v. Salisbury Mg. Co., 14 Gray, 443; Gile v. Stevens, 13
Gray, 146.
8 Tounellot v. Thelps, 4 Gray, 370 ; Judd v. Wells, 12 Mete. 504.
* Burnham v. Story, 3 Alien, 379.
414 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
persons are thereby damaged, the owner of such dam is liable
to actions at common law in favor of those whose lands are
injured. 1
24. But though he would lose the benefit of the statute by
abandoning his mill, yet if his mill or his dam be destroyed
by flood or fire, or become dilapidated by age or natural de-
cay, the proprietor will have a reasonable time in which to
rebuild or repair the same, depending, as to what that shall
be, upon the circumstances of each particular case.^
If the mill-owner cease to use and occupy his land for
mill purposes beyond a reasonable time, or if he do acts of
abandonment, like removing his dam or mill, accompanied
by evidence of an express intent, like a declaration
[*340] to that *effect, to abandon the right of flowing an-
other's land, it would extinguish his right to do so
under the statute, and, for any subsequent flowing, he would
be subjected to the liabilities of the common law.
How far this would be the effect, if such abandonment
were made by a tenant for life or years of a mill, so as to
bind the rights of a reversioner or remainder-man, or how
far an infant would be bound by such acts, after he should
have arrived at age, may be considered as questions not ne-
cessarily involved in the above decision, which is understood
to apply only to cases of owners in fee, who are competent to
bind the estate. And it may be assumed to be a rule of law
that such abandonment can only be made by such as have a
disposing power over the estate.
25. In applying the doctrine of abandonment to what
would be regarded as sufficient evidence of its having been
made, it would be deemed prima facie evidence of this, if
there had been a discontinuance of the use for twenty years,
though even that may be controlled by proof of the existence
1 Bainl v. Hunter, 12 Tick. 5.56; Slack v. Lyon, 9 Pick. 62; Fitch v. Ste-
vens, 4 Mete. 426; Sampson v. Bradford, 6 Gush. 303; Farrington v. Blish, 14
Me. 423 ; Hodges v. Hodges, 5 Mete. 205.
'•^ French v. Braintree Mg. Co., 23 Pick. 220 ; Cowell v. Thayer, 5 Mete. 253.
Sect. 5.] SPECIAL LAWS AS TO MILLS. 415
of causes, during that time, which have prevented the owner
of the privilege from exercising the act of flowing.^
So the effect to be ascribed to a cesser to use a right to
flow another's land, when once acquired, accompanied by a
declaration of intent, may depend upon the circumstance
whether the party causing it shall have acquired the right to
do so without payment of damages therefor, or wliether he is
subject to damages for continuing the same. In the one
case, the removal of his mill, and a declaration by the mill-
owner that the privilege would not be occupied again, would
not be deemed a legal abandonment by which his right to
resume it at his pleasure was lost, whereas, in the other,
it would be an abandonment, and the respective rights of
the land-owner and of the owner of the privilege
*would be restored as they stood before such right [*341]
had been acquired.^
26. The law authorizing the mill-owner to flow another's
land by making compensation therefor, so far regards this
right like a mere license, and not an estate in another's land,
that where a jury had assessed a sum in gross, to be paid by
such mill-owner for the right to flow the land of the com-
plainant for all future time, and the mill-owner, at once,
ceased to flow it, and, by a written declaration, abandoned
all right to continue to flow the same, it was held that he
thereby exonerated himself from liability to pay the damages
assessed for such future flowing.^
27. Nor, though the cases speak of this right as one of
perpetual easement, is it, in fact, either an easement in all
respects, or an estate in another's land, for, in the first place,
the land-owner, if he can do so, may prevent the mill-owner
from setting back the water of his pond upon the land of the
former by erecting dikes or embankments to guard the
1 French v. Braintree Mg. Co., 23 Pick. 220 ; Hunt v. Whitney, 4 Mete. 603 ;
post, chap. 5, sect. 6.
2 WilHams v. Nelson, 23 Picli. 141, 147 ; French v. Braintree Mg. Co., sujjra ;
post, chap. .5, sect. 6.
3 Hunt V. Whitney, 4 Mete. 603.
416 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
same ; ^ or lie may occupy the water upon his land by mak-
ing a boom thereof, in which to hold his logs, or may erect
piers therein, although he thereby diminishes the capacity of
the pond to contain a body of water.^ And such flowing is
never regarded a disseizin of the owner of the land, nor an
interference with his right to convey the same.^ Nor does
an oral agreement of the land-owner with the mill-owner,
not to claim damages, though binding upon him, run with
the land, so as to constitute an encumbrance thereon, or pre-
vent a grantee of such land-owner from claiming
[*342] damages occasioned by a subsequent flowing of *the
land.* And it may be remarked, that the claim on
the one side and the liability on the other in respect to dam-
ages is so far a personal one, that the one is liable only for
the time he shall have owned the mill, and the claim of the
other begins and ends with his ownership of the estate.^
28. Another liinitation of the right of a mill-owner, in the
exercise of his power to flow under the statute, is, that he
holds it subject to the public right to use navigable streams
for purposes of highways,^ and he may not flow so as to in-
jure an existing highway.'
29. Although the injuries thus far spoken of, as being oc-
casioned by flowing under the provisions of the mill acts,
have been chiefly those done to the surface or the produc-
tions of land, it was held tliat where, by raising a pond of
water, it set it back through an existing underground drain
into a cellar, the remedy of the person injured thereby was
1 Williams v. Nelson, 23 Pick. 141 ; Murdock v. Stickney, 8 Cush. 116;
Bates V. Weymouth Iron Co., 8 Cush. 548.
2 Jordan v. Woodward, 40 Me. 317.
8 Charles i'. Monson & Brimfield Mg. Co., 17 Pick. 70.
* Fitch V. Seymour, 9 Mete. 462.
6 Holmes v. Drew, 7 Pick. 141 ; Charles v. Monson & Brimfield Mg. Co.,
supra.
^ Knox V. Chaloner, 42 Me. l-'JO; Veasie v. Dwinel, 50 Maine, 479, 490;
Davis V. Winslow, 51 Maine, 294 ; Gerrish v. Brown, lb. 256.
7 Commonwealth v. Stevens, 10 Pick. 247 ; Andovery. Sutton, 12 Mete. 182;
Commonwealth v. Fisher, 6 Mete. 433 ; Treat v. Lord, 42 Me. 522, 561.
Sect. 5.] SPECIAL LAWS AS TO MILLS. 417
under the provisions of this act. And where such flowing
obstructed a drain which the owner had, without right, en-
tered upon the land of the mill-owner, the latter was not
responsible either under the statute or by the common law,
to owners of cellars whose drains discharged into the first-
mentioned drain, although by obstructing that the cellars
were injured. ^
30. While a mill-owner may flow the land of another
under the statute, he is, in turn, protected from having his
own mill injured by another mill-owner flowing back water
upon the same, if the upper mill be the more ancient one.^
31. In one important respect, the construction
given by *the courts of Maine to the Mill Acts of that [*343]
State differs from that of the courts of Massachu-
setts to similar acts in the latter State. Thus, while in Mas-
sachusetts the act of flowing another's land is in itself a tort
which gives him a right to maintain a complaint therefor,
and, if continued for twenty years under a claim of right,
acquiesced in by the land-owner, will create a prescriptive
right to continue it, though no actual appreciable damage
shall have, thereby, been occasioned to the land-owner ; ^ in
Maine, no right to maintain a complaint exists until some
such damage has thereby been occasioned. Nor will any
prescriptive right be gained until twenty years' enjoyment
thereof by user, after the flowing shall have begun to cause
damage to the land-owner. And inasmuch as the process by
complaint has superseded that at common law, the owner of
land is without remedy for the same being flowed, until he
can show that he has thereby sustained actual damage.*
1 Cotton V. Pocasset Mg. Co., 13 Mete. 429.
2 French v. Braintree Mg. Co., 23 Piek. 216, 220.
3 Williams v. Nelson, 23 Pick. 141, 145; Ray v. Fletcher, 12 Gush. 200, 206.
* Tinkham v. Arnold, 3 Me. 120 ; Hathorn i'. Stinson, 10 Me. 224 ; s. c, 12
Me. 183; Scidensparger v. Spear, 17 Me. 123; Nelson v. Buttcrfield, 21 Me.
220 ; Wood v. Kelley, 30 Me. 47 ; Wentworth v. Sandford Mg. Co., 33 Me.
547 ; Burleigli v. Lumbert, 34 Me. 322 ; Underwood v. N. Wayne Co., 41 Me.
291 ; ante, chap. 1, sect. 4, pi. 33 ; chap. 3, sect. 5, pi. 9.
27
418 THE LAW OF EASEMENTS AND SERVITUDES. [Cir. III.
Nor would the flowing of itself be presumptive evidence of
damage done ; actual damage must be sliown.^
32. So that if one were to claim a prescriptive right to
flow land of another, by twenty years' enjoyment, the claim
might be met by evidence that he had voluntarily suspended
such flowing for one oi^morc years, whereby the damage to
the same was during that time suspended, unless the sus-
pension were accompanied by acts indicating an intention to
continue it, such, for instance, as being engaged, during the
time, in repairing the dam or the like.^
33. These mill acts, and all others of a like character
made by the several States in derogation of the com-
[*344] mon * law, are necessarily local in their operation,
since no one State can authorize its citizens to vio-
late the common-law rights of citizens of other States be-
yond the limits of its own territory. Thus where a citizen
of New Hampshire erected a dam upon his own land, which
set back the water upon the land of another within the State
of Maine, as the erection of the mill and dam were not au-
thorized by the law of Maine, and the land-owner was with-
out remedy under the statute process of that court, it was
held that he might maintain an action for the injury thereby
sustained at common law.^
34. In United States v. Ames, Woodbury, J. was inclined
to hold that the statute of Massachusetts as to mills did not
extend to lands belonging to the United States, though lying
within the limits of Massachusetts, and such besides as the
United States held as purchasers, and not by the exercise of
eminent domain, but over which the State had ceded the
jurisdiction. In that case the owner of a mill and dam
flowed lands belonging to the United States, but never oth-
erwise appropriated to use. The mill and dam stood witliin
the territory over which the State retained its original juris-
1 Glcason v. Tuttlc, 46 Mc. 288 ; Underwood v. N. Wayne Co., supra.
2 Gleason v. Tuttlc, 46 Mc. 288.
8 Wooster v. Great Falls Mg. Co., 39 Mc. 24G ; Worster v. Winnipiseogee
Lake Co., 5 Fost. 525 ; Farnum v. Blackstone Canal Corp., 1 Sumn. 46.
Sect. 5.] SPECIAL LAWS AS TO MILLS. 419
diction. The point was not settled by the judge, though the
right thus to flow, ho says, " seems to me to be with diffi-
culty vindicated." To other minds it might seem other-
wise. The proposition, it will be perceived, is not that the
mill-owner may interfere with any mill or works of the
United States, but simply that he may, under a general law
of the Commonwealth, flow a parcel of land which the
United States holds within the Commonwealth under a
deed of purchase. It involves the question whether the
United States holding lands within a State, by purchase,
are exempt from the lawful easements and servitudes to
which such lands were subject, in respect to the ad-
jacent *estates before and when they purchased the [*345]
same. Suppose it had been a right of way, or an an-
cient channel by which water flowed to a mill on the adja-
cent estate, and neither of these interfered with the full en-
joyment of the land, so far as it was needed for any practical
use by the United States. Could it make any difference
that the jui'isdiction over the territory had been ceded by the
state ? That could be done without changing the property
or incidents of ownership in the estates within the ceded
portions of the state.
Thus, suppose A's grantor, by his mill and dam, had
flowed the land of B's grantor, for fifteen years, by paying
annuiil damages therefor, and had been protected in so do-
ing by the statute. If the state should then cede simply the
jurisdiction to the United States over a portion of its terri-
tory, which should include the estates of A and B, would
the latter at once be thereby clothed with common-law power
and rights, and have a right of action upon the case for such
flowing, against A, or have a right to abate his dam as a
nuisance ? In the case reported, the statutes upon the sub-
ject of mills were in full force when the United States piir-
chased the land, and unless as purchaser they acquired alto-
gether better rights than their vendor had to bestow, it is
not easy to see how they could, without some special appro-
420 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
priation of the land or water-power to use, exercise other or
different rights in this respect from other land-holders. The
price they paid must have been predicated upon the servi-
tudes and inconveniences under which the vendor had hold
the land, as well as the advantages or intrinsic value it may
have had. And it is not easy to see, upon equitable grounds,
how, the moment the property shall have passed hands, the
adjacent owners should be deprived of the incidental ad-
vantages which till then belonged to their lands, while the
land thus purchased should be relieved from its disadvan-
tages. ^
[*346] *The reasoning of the court of California seems to
be quite as sound, and far more consonant with the
sense of justice of a common mind, when considering the
right in the United States to take gold or control its disposi-
tion within the territory incorporated into the State of Cali-
fornia. " Nor do wo admit that the United States, holding
as they do, with reference to the public property in the min-
erals, only the position of a private proprietor, with the ex-
emption from state taxation, having no municipal sover-
eignty or right of eminent domain within the limits of the
state, could, in derogation of the rights of the local sover-
eign to govern the relations of the citizens of the state, and
to prescribe the rules of property and its mode of disposition
and tenure, enter upon, or authorize an entry upon, private
property, for the purpose of extracting such minerals im-
bedded in the soil, which could only be done by lessening or
destroying the value of the inheritance.
" The United States, like any other proprietor, can only
exercise their rights to the mineral on private property, in
subordination to such rules and regulations as the local
sovereign may prescribe. Until such rules and regulations
are established, the landed proprietor may successfully resist
in the courts of the state all attempts at invasion of his
property, whether by the direct action of the United States,
1 1 Woodb. & M. 76.
Sect. 5.] SPECIAL LAWS AS TO MILLS. 421
or by virtue of any pretended license under tlicir author-
ity," 1
35, The statute of Maine has one provision distinct from
any that is found in that of Massachusetts, authorizing a
mill-owner to divert water from a stream for the purpose of
creating an operative power for his mill, by means of a canal
which shall not exceed one mile in length. Commissioners,
moreover, instead of a jury, are appointed, in the first place,
to appraise the damages, and fix the height to which the
mill-owner may flow back the water.^
*36. The statute of Wisconsin is so nearly in sub- [*347]
stance like that of Massachusetts, that it is only ne-
cessary to cite it.'^
37. In Rhode Island, a party aggrieved by the flowing of
his lands, or their being otherwise injured by the mill-dam
of another, whether the same are situate above or below
such dam, may sue for the same in an action at common
law. If he prevails in such suit, his damages are to be as-
sessed as in Massachusetts, and, upon paying the same, the
mill-owner may continue to flow or damage the plaintiff's
land. There is also a provision requiring a mill-owner not
to detain the natural flow of any stream more than twelve
hours, at any one time, except on Sunday, if requested
by a mill-owner below him to suffer the natural flow of the
stream.*
38. Under what may be called the Virginia system of
mill acts, an essentially different principle is involved from
that in Massachusetts, in this, that while, by the latter, the
mill-owner acquires, at most, only an involuntary easement
in another's land, by the law of Virginia he acquires a title
to the land occupied. And instead of requiring, as in Mas-
sachusetts, that the mill-owner should have so far an entire
1 Boggs V. Merced Mining Co., U CaL 279, 235. See Hendricks v. Johnson,
6 Port. 472.
^ Me. Rev. Stat. 1857, c. 92.
3 Wise. Rev. Stat. 1858, c. 56.
* R. I. Rev. Stat. 1857, c. 88, p. 215. See Mowry v. Sheldon, 2 R. L 369.
422 THE LAW OF EASEMENTS AND SERVITUDES. [Cir. III.
mill-privilege that his dam and mill shall be erected on his
own land, it authorizes one owning land upon one side only
of a stream to appropriate land lying upon the opposite side,
upon which to construct his dam and mill, by a process of
law called a condemning' of the land.
The general provisions of the act are, that any one own-
ing land upon one side of a stream, extending to the thread
thereof, or to the opposite bank, but not the bank itself,
whereby he could build a dam for occupying a mill-site on
his own land, may apply to the court for a writ of ad quod
damnum, directed to the sheriff, under wliich a jury is sum-
moned, who are authorized to locate one acre of
[*348] land for *the purpose, and appraise the same at its
true value. The jury may also examine what lands
above or below will probably be thereby overflowed, and the
damage which will thereby be occasioned, and whether the
health of the neighborhood will be thereby injuriously af-
fected. This may be done with a view of building a mill,
machine, engine, and dam.
Similar provisions exist, in most respects, where the mill-
owner owns the land in fee on both sides of the stream, but
the erection of a dam thereon would cause damage to the
owners of land above.
But if, by the erection of such dam and flowing, a head of
water for the same, the mansion-house, offices, curtilage, or
garden, or orchard of another will be overflowed, or the
health of the neighborhood be injuriously affected thereby,
the court may not give permission to erect the same. Upon
an adjudication by the court in favor of the erection of such
mill, and the payment by the applicant of the assessed value
of tlic acres so appropriated, and the damages assessed by
the jury, he becomes seized in fee simple of the land appro-
priated, and is authorized to erect a dam, mill, machine, or
engine, provided he begins them within one year, and com-
pletes Lheni within three.
It will he perceived that the proceedings as to condemning
Sect. 5.] SPECIAL LAWS AS TO MILLS. 423
the land and assessing the damages are all preliminary to the
erection of the dam and mill, whereas in Massachusetts, until
the mill-owner shall have erected his dam and mill, he can-
not avail himself of the protection of the statute.
Provision is farther made for a second writ ad quod dam-
num, in case tlie mill-owner shall have occasion to increase
the extent of the flowing for his mill.
It was a remark of Carr, J., in view of these statutes,
that " no man undertakes to build a mill with us until he
has obtained leave of the court of the county in which the
mill is situate." ^
*The mills contemplated by these statutes arc [*349]
" water grist-mills, or other machine or engine use-
ful to the public." ^ But no power is thereby given to the
court to condemn land for a tail-race to a mill.^
In applying this law, the court never grants leave to erect
a second mill which will destroy a privilege which they have
already authorized another to occupy.'^
39. There is in Missouri a statute in most respects like
that of Virginia, extending to cases where the applicant for
leave to establish a mill owns the land upon both sides of the
stream, and will thereby cause damage to the lands of others,
and to those where he owns only upon one side of the stream.
And there is a provision for a penalty of double damages to
be paid by any one who shall -have erected a mill upon a
stream whereby the property of others is injured, without
having first obtained permission of the court to erect the
same, in the manner prescribed, or the court may enjoin or
abate the same as a nuisance.^
40. While the statutes of Alabama, which were similar to
those of Virginia and Missouri, were considered as in force,
1 Nichols V. Aylor, 7 Leigh, 54G, 562.
2 Tate's Dig. Laws of Va., 1841, p. 692 ; Huuter v. Matthews, 1 Robins. Va.
468.
3 Coaltcr V. Huuter, 4 Rand. 58.
* Humes v. Shugart, 10 Leigh, 332.
6 Mo. Rev. Stat. 1855, c. 112.
424 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
the court held that, in case of a competing of two or more
applicants for leave to erect mills, the first applicant ac-
quired an inchoate right to preference.^ And in a case in
Missouri, where S. and M. owned distinct mill-sites upon the
same stream, at the distance of a mile and a half from each
other ; but from the nature of the stream, if both were occu-
pied, the lower one would flow out the upper one, so that a
preference must be given to one or the other, and each made
application to the court for leave to occupy his site ; the jury
found that, if the upper one were occupied, it would damage
the land of the lower one to a small extent, while the
[*350] lower one if *occupied would not damage the land
of any one, but simply deepen the current of the
stream so as to destroy the upper site for mill purposes, and
the court granted the leave to the lower site and denied it to
the upper one.^
41. The statute of Arkansas is substantially the same
as that of Missouri.-^ And the same may be said of that
of Kentucky in its general effect. But, among some of its
provisions, the jury are limited to one acre which shall
be needed for the dam, but may condemn land for a canal
an hundred feet in width above or below the site of the
mill ; but, like the statutes of Virginia and the other States
cited, they are restricted from overflowing any house, gar-
den, or orchard, and from injuring any existing mill. Nor
may a mill be authorized to draw the water away from any
existing mill, or to injure the vested rights of any one in any
water-works upon the same watercourse. The effect of being
condemned, upon the title of the land to which it is applied,
is the same as under the Virginia statute.^
An applicant under this statute must own the land, in
fee-simple, upon one or both sides of the stream.'^ And the
courts are very exact in their requirements of such applicant
1 Hendricks v. Johnson, 6 Port. 472. 2 Hook v. Smith, 6 Mo. 225.
8 Dij?. Ark. Stat. c. 114.
* 2 Ky. Rev. Stat., Stant. ed. 18G0, c. 67.
^ Smith V. Conncly, 1 Monr. 58.
Sect. 5.] SPECIAL LAWS AS TO MILLS. 425
to state clearly in his petition the grounds upon which he
rests his claim for the condemnation of another's land.^
42. The statute of Mississippi is like that of Virginia and
Missouri in all important respects.^
43. The statutes of North Carolina partake somewhat
of both those of Virginia and Massachusetts. Thus one
may, upon a writ of ad quod damnum, take land of another
for the purpose of erecting a dam. And if by the erection of
a dam the land of another is flowed and damaged,
*the land-owner may have his annual damages as- [*351]
sessed by a jury under a complaint, instead of main-
taining an action at common law for a recovery of the same.^
Nor can one whose land is flowed, maintain an action at
common law for the injury thereby occasioned, until relief
shall have been sought by a petition for annual damages.'*
But he may recover under the statute for damages to his
land, by being prevented by the dam of a mill-owner from
draining the same, although the waters of the pond do not
actually set back upon his land.^
44. In most respects, the laws of Indiana and Illinois
upon this subject are like those of Missouri, giving the mill-
owner a right, upon a writ of ad quod damnum, to have land
condemned in his favor, upon which to erect a dam, or to
assess the damages to be occasioned to the lands of others by
erecting a dam upon his own land.^ And those of Florida
are so nearly identical with the statutes of Virginia that it is
unnecessary to repeat them."
45. These proceedings under a writ of ad quod da?nnum,
in which respect all the States adopting the Virginia system
have the same general form, being in derogation of the com-
1 M'Afee v. Kennedy, 1 Litt. 92.
2 Miss. Stat, Howard & Hutchinson's ed., 1840, c. 13.
3 No. Car. Rev. Code, 1854, c. 71.
4 King V. Sliufford, 10 Ired. 100.
^ Johnston v. Roane, 3 Jones, Law, 523.
6 1 Ind. Rev. Stat. 1852, c. 48 ; 111. Stat., ed. 1858, p. 768.
: 7 Thomp, Dig. Flor. Laws, p. 401.
426 THE LAW OF EASEMENTS AND SERVITUDES. [Cu. III.
mon-law rights of the parties injured by the loss of, or dam-
age to, his land, must be strictly pursued, or the injured
party is remitted to his remedy at common law.^
And though, where such proceedings have been regularly
conducted, a judgment in the writ of ad quod damnum would
be conclusive upon the subject of the damages therein pro-
vided for, it has been held, in Indiana, that such assess-
ment will not affect the remedy of an injured party
[*352] * for an injury which was not foreseen or estimated
by the jury .2
And so important is it that one should have obtained au-
thority from the court for erecting a mill and dam, in order
to avail himself of the protection of the law in respect to the
same, that where one had, without preliminary proceedings,
begun to erect a dam and mill, and another obtained leave
of court upon a writ of ad quod damnum^ and proceeded to
erect a dam and mill below the first, it was held that, though
subsequent in time, he was thereby prior in right, and might
go on and flow out the works of the upper owner.^
But in Kentucky, where a mill had stood thirty-three
years, the unobstructed use of it during that time was held
to raise a legal presumption that it was, originally, legally
established.*
46. To complete what is intended to be said of these local
statutes, it may be repeated, that the statutes of Alabama,
which were substantially like those of Virginia, were de-
clared unconstitutional by the courts of that State, so far as
they relate to taking the lands of one man for the use of an-
other.^ And a statute in Maryland, which had existed for
many years, authorizing any person desirous of establishing
1 Hendricks v. Johnson, 6 Port. 472 ; Shackleford v. Coffey, 4 J. J. Marsh.
40 ; Wolf?;. Coffey, Ibid. 41. See Garrett v. Bailey, 4 Harrin^t. 197.
^ Keplcy V. Taylor, 1 Blackf. 492 ; Smith v. Olmstead, 5 Blackf. 37 ; Bell i\
Elliott, .5 Blackf. 11.3.
8 Hendricks v. Jolinson, supra.
* M'Dougle V. Clark, 7 B. Monr. 448.
^ Sadler v. Langliain, 34 Ala. 311.
Sect. C] EIGHTS IN KAIN AND SURFACE WATER. 427
a forging mill, to apply for a writ of ad quod damnum, and
under it to have an hundred acres of land condemned to
him for that purpose, was repealed in 1822. ^
♦SECTION VI. [*3o3]
OF RIGHTS IN RAIN AND SURFACE WATER.
1. Rain and surface water flowing from a higher to a lower field.
2. Case of Martin v. Riddle. As to the law in such case.
3. Easement and servitude of water between upper and lower fields.
4. Case of Kauffman v. Griesemer, illustrating this doctrine.
5. Law of Louisiana on the same subject.
6. How far the rule in such cases applies in cities.
7. How far upper owner may deprive lower of surface w^ater.
8. Case of Broadbent v. Rarasbotham. On same subject.
9. Case of Rawstron v. Taylor. Right to drain upper field.
10. Rule as to right to divert, if spring become a stream.
11. Case of Luther v. Winnisimmet Company. As to rights in surface water.
1. Before proceeding to consider the law as to water per-
colating through the earth, beneath its surface, it is neces-
sary to refer to a few principles which seem now to be pretty
well settled as to the respective rights of adjacent land-own-
ers, in respect to waters which fall in rain, or are in any
way found upon the surface, but not embraced under the
head of streams or watercourses, nor constituting permanent
bodies of water, like ponds, lakes, and the like. It may be
stated as a general principle, that, where the situation of two
adjoining fields is such that the water falling or collected by
melting snows, and the like, upon one, naturally descends
upon the other, it must be suffered by the lower one to be
discharged upon his land if desired by the owner of the
upper field. But the latter cannot, by artificial trenches or
otherwise, cause the natural mode of its being discharged to
be changed to the injury of the lower field, as by conducting
1 Binney's case, 2 Bland, Ch. 99, 116.
428 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
it by new channels in unusual quantities on to particular
parts of the lower field. ^
This question has arisen in several different forms,
[*354] and *the law upon the subject can be best illustrated
by referring to some of the decided cases.
2. In Martin v. Riddle, there were adjacent parcels of
land belonging to the plaintiff and defendant, that of the de-
fendant being upon a lower level than that of the plaintiff.
The water that fell upon the plaintiff's land in rain, as well
as that arising from certain springs in the same, found their
way along a natural channel from the plaintiff's on to the
defendant's land. A proprietor upon the slope of the accliv-
ity above the plaintiff's la;id opened certain other springs
in his land by excavating the earth, the water from^which
found its way into the plaintiff's land, and thence through
this natural channel to the defendant's land, increasing the
quantity usually flowing therein, and injuring the defend-
ant's land. In order to prevent this, the defendant con-
structed an embankment across this natural channel, and
thereby prevented the water from flowing from the plain-
tiff's land, and for this he brought his action. It was held,
that, while the owners of land are entitled to the benefit of
waters natu^'.ally running to the same, they are bound to
bear the inconvenience thereof, if any, and that living springs
are to be suffered to flow in their natural channel, and may
not be stopped by one proprietor to the injury of another.
In general, the same rule applies to rain-water as to living
springs, in respect to its draining from lands upon which it
1 Ante, chap. 3, sect. 1, pi. 7 ; Pardessus, Traite des Servitudes, 130; 3 Toul-
lier, Droit Civil Fran9ais, 374, ed. 1824. There is a statute in Massachusetts
which authorizes the owner of a swamp or meadow, under certain limitations, to
construct a drain or ditch from his own across the land of an adjacent owner for
the purpose of draining the same. But this extends only to the draining one's
land tlirough another's to a pond or stream capable of receiving the water, without
causing injury to his neighbor's land. It does not authorize his conducting
the water from his own land on to that of his neighbor to its injury. He would
be liable to an action for so doing. Gen. Stat. c. 148 ; Sherman v. Tobey, 3
Allen. 7.
Sect. 6.] EIGHTS IN RAIN AND SURFACE WATER. 429
falls, a lower field being subject to the flow of such water
from the higher one. Nor may the owner of the lower one
construct embankments which will prevent this. On the
other hand, the owner of the upper field may not construct
drains or excavations so as to form new channels on to the
lower field, nor can he^icollect the water of several channels
and discharge it on to the lower field so as to increase the
wash upon the same. He may, however, make whatever
drains in his own land arc required by good husbandry,
either open or covered, and may discharge these into the
natural channel or channels, even though by so do-
ing he *increases the quantity flowing therein. And [*355]
if there is any difficulty in ascertaining what the nat-
ural channel is, that will be taken to be such in which the
water has been accustomed to flow for the period requisite
to acquire a prescriptive right. But if the owner of the
upper field throw an unnatural quantity of water upon the
lower one, he may not stop it altogether, if, in so doing, he
throws back the water upon the land of an intermediate pro-
prietor, as, in the present case, the increase was occasioned
by the act of a more remote proprietor. And the court held
the defendant in the action liable for creating the obstruc-
tion complained of.^
3. The owner of the upper field, in such a case, has a
natural easement, as it is called, to have the water that falls
upon his own land flow off the same upon the field below,
which is charged with a corresponding servitude, in the
nature of dominant and servient tenements.^ It may be dif-
1 Martin v. Riddle, 26 Penn. St. 415, in note; 3 Toullier, Droit Civil Fran-
9ais, 356 ; Miller v. Laubach, 47 Penn. 155.
2 Laumier v. Francis, 23 Mo. 181 ; Bellows v. Sackett, 15 Barb. 96, 102 ;
Code Nap., Art. 640 ; Ersk. Inst. 352, fol. ed. ; Orleans Navigation Co. v.
Mayor, &c., 2 Mart. 214, 232; Adams v, Harrison, 4 La. Ann. 165; Lattimore
V. Davis, 14 La. 161 ; Hays v. Hays, 19 La. 351 ; Kauffman v. Gi'icsemer, 26
Penn. St. 407, 413.
The same rule applies to all matters which, from the relative situation of
two estates, are naturally cast from the one upon ilie other, such as rocks,
slides of earth, and the like, falling from a higher upon a lower parcel. The
430 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. Ill,
ficult to reconcile what is here said with some of the posi-
tions to be found in an earlier part of this work (p. *211 et
seq.'), especially the language of the court of Massachusetts,
that " the obstruction of surface water or an alteration in the
flow of it affords no cause of action in behalf of a person
who may suffer loss or detriment therefrom, against one who
does no act inconsistent with the due exercise of dominion
over his own soil." ^ But the doctrine as above stated is
in accordance with recent opinions of some of the American
Courts. Thus in Beard v. Murphy ,2 the defendant stopped
the surface flow from the plaintiff's land on to his by a l)ar-
rier of boards and clay upon the defendant's land. The
court say " the plaintiff claimed, that, if the surface water
naturally falling on his land would run off upon the defend-
ant's land, the defendant had no right to put up any obstruc-
tion to prevent its continuing to do so." " This the court
granted and charged to be law." But inasmuch as what
the defendant did was to prevent filthy water flowing from
plaintiff's house into his well, it was held that he was justi-
fied in stopping the same, although he, at the same time,
stopped some of the natural flow of proper surface water.
On the other hand, the owner of an upper parcel cannot drain
the water that stands thereon by artificial channels on to a
lower one belonging to another witliout his consent. This
was the point in Miller v. Lauback. The owner may drain
his land by ditches within his land, for agricultural purposes,
but one owner has no right to insist that another shall suffer
the water in his land to percolate and come into that of the
former though it would be for his benefit.^
lower tenement in such case is obliged to receive what is thus cast upon it,
though tlie owner tlicreof may protect it, if possible, by works of art, to guard
against injuries therel)y occasioned. 3 TouUier, Droit Civil Fran^ais, 356.
Tlie owner of the upper tenement may by prescription acquire a right to
roll the stones from his land ui)on that of his neighbor. But, without gaining
such a right, he may not cause those upon his land to roll on to that of his
neighbor. 2 Fournel, Traitc du Voisinage, 177.
1 Gannon v. Ilargadon, 10 Allen, 110.
^ Beard v. Miirpby, 37 Verm. 104. Sec also Miller v. Laul)ach, 47 Pcnn. 155.
'^ Buff'um V. Harris, 5 It. I. 253.
Sect. C] RIGHTS IN RAIN AND SURFACE WATER. 431
And the prevailing doctrine, applicable to cases like these,
seems to be this, if, for purposes of improving and cultivat-
ing his land, a land-owner raises or fills it, so that the water
which falls in rain or snow upon an adjacent owner's land,
and which formerly flowed on to the first-mentioned parcel,
is prevented from so doing, to the injury of the adjacent
parcel, the owner of the latter is without remedy, since the
other party has done no more than he had a right to do. It
was accordingly held in Bentz v. Armstrong, that where
several owners of house lots on which houses had been
erected, divided them into separate estates, each parcel was
to take care of the surface water which gathers upon it,
without its flowing from the one on to the other. ^ And in a
recent case in New York, the court say, " I know of no prin-
ciple which will prevent the owner of land from filling up
the wet and marshy places on his own soil for its ameliora-
tion and his own advantage, because his neighbor's land is
so situated as to be incommoded by it. Such a doctrine
would militate against the well-settled rule, that the owner
of land has full dominion over the whole space above and
below the surface." ^
4. This matter is further treated of in KaufTman v. Griese-
mer, above cited, in which case there was a spring of water
upon the plaintiff's land, which, as well as the rain that fell
upon his field which sloped towards the defendant's
land, *found its way to a point near the land of the [*356]
defendant, but was prevented from flowing upon it,
by a small natural elevation or rise in the land, except in
times of freshets. The plaintiff" dug a channel through this
elevated portion of his land into the defendant's land, where-
by the water from the land of the plaintiff flowed on to that
of the defendant. To prevent this, the latter created an ef-
fectual obstruction, whereby the discharge of the water from
1 Bentz V. Armstrong, 8 W. & Serg. 40.
2 Goodale v. Tuttle, 29 N. Y. 467. See also Frasier v. Bro\ni, 12 Ohio St.
300. See }wst, p. *357.
432 THE LAW OF EASEMENTS AND SERVITUDES. tCi'- HI-
the plaintiff's land was prevented, except in times of freshet.
The court held, in accordance with the doctrine of Martin v.
Riddle, above cited, that, though a man may drain his own
land by discharging the water in the channels through which
it naturally flows, and may clear the impediments in a stream
within his own land, though the effect should be to increase
the quantity of water flowing through these channels upon the
land of a neighboring proprietor, he has no right to dig an
artificial ditch or drain whereby to conduct the water from
his own land upon that of another in any but its natural
course. And, consequently, that in the present case the de-
fendant was justified in creating the obstruction he did to the
flow of the water in this ditch. And not only so, but so far
as the defendant's land was upon a higher level than a part
of the plaintiff's, he had a right to have the water flow from
his land upon that of the plaintiff. The language of the
court upon the subject is : " Because water is descendible by
nature, the owner of a dominant or superior heritage has an
easement in the servient or inferior tenement for the dis-
charge of all waters which by nature rise in or flow or fall
upon the superior." The limit or extent to which this re-
mark reaches is indicated by the language of the court, who
add : " This obligation " (to receive the water flowing from
the superior heritage) " applies only to waters which flow
naturally without the art of man ; those which come from
springs, or from rain falling directly on the heritage, or even
by the natural dispositions of the place, are the only
[*357] ones to which this expression of the law can be *ap-
plied This easement is called a servitude in
the Roman law." ^
5. The courts of Louisiana agree with that of Pennsyl-
vania in limiting this servitude in the lower heritage to the
water that nalurally runs from the superior one, and only
1 Kauflman v. Giicsemer, 26 Penn. St. 407, 413 ; 5 Duranton, Cours de Droit
Fran(;ais, 167 ; ante, pp. *15, *226 ; Pardessus, Traite dcs Servitudes, § 86, pp.
119-122; Ibid., § 92, pp. 1 30, 1 33.
Sect. C] RIGHTS IN KAIN AND SURFACE WATER. 433
where the industry of man has not been employed to create
the servitude. And wliilo the lower heritage may raise no
obstruction to the flow of the water to tliis extent, the supe-
rior one may do nothing to render the servitude more bur-
densome, though this does not prohibit fitting the same
for agricultural uses by clearing it, or constructing proper
ditches and canals for that purpose,^
The lower owner, however, is not obliged to open ditches
on his own land to draw off the water from his neighbor's
land.2 Nor to suffer the upper owner to cut ditches in his
land, and thereby drain tlie upper lot into a canal in the
lower one.^
6. But it would seem that this doctrine of a lower estate
owing servitude to a superior one, to receive the water that
falls upon the latter, and would naturally flow therefrom to
the former, does not apply to house-lots in towns and cities,
where the same have been occupied by the erection of houses
thereon. In such cases each proprietor must, if the same
can be done, so grade his lot as not to throw the water which
collects upon the same upon the adjacent lot. This question
arose in the city of Pittsburg, in the case of Bentz v. Arm-
strong, where two proprietors of a lot made partition thereof
into two, each taking one of these. There was a spring of
water upon one of them, which, together with the rain, as
it fell, naturally flowed from it upon the other lot, and the
owner of the latter, in order to prevent this, raised an em-
bankment upon his land, which caused this water to set back
into the cellar upon the lot in which it originated.
*The court held that he had a right so to do, and [*358]
that it was the duty of the owner of the upper lot to
1 Martin v. Jett, 12 La. 504 ; Orleans Navigation Co. v. Mayor, &c., .3 Mart.
214,233; Delahoussaye y. Judice, 13 La. Ann. 587; La. Civ. Code, Art. 656 ;
Code Nap., Art. 640; 5 Duranton, Cours de Droit Fran9ais, 167; Pardessus,
Traite' des Servitudes, §§ 85, 86; Lattimore v. Davis, 14 La. 161; Hebert v.
Hudson, 13 La. 54. See also Earle v. De Hart, 1 Beasl. 280 ; ante, chap. 3,
sect. 1, pi. 7.
2 Goodale v. Tuttle, Sup.
3 Minor v. Wright, 16 Louis. An. 151.
28
434 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
drain the same into the common sewer, if there was one, or
in some other way, if possible, to relieve the adjacent house-
lot.i
But in a case in New Jersey, where the land lay in Eliza-
beth City, and the waters that were accustomed to collect
upon its surface from rains, &c., were accustomed to flow
over the defendant's land by an ancient watercourse, it was
held that, though within a city, he had no right to stop such
watercourse. " To have this water discharged upon the
complainant's land is as great an injury to her building lot
as it is to the defendant's lot to have it discharged there.
There can be no such difference in the application of the
law as to building lots as will impose a burden upon one
which properly and of right belongs to another."^
In that case it was held to make no difference in the
rights of the parties that the complainant might at small ex-
pense turn the water so as not to flow on to the defendant's
land. She was not bound to do it.
7. In considering the subject of surface water, thus far,
reference has been chiefly had to the right of the superior
land-owner to claim, in the nature of a servitude in the land
below, the right to have such water discharged thereon, as
an easement belonging to the upper tenement. But the sub-
ject admits of another view, and that is, how far the owner of
the upper tenement may use and apply such water upon his
premises, and deprive the lower tenement of any benefit
which might otherwise result to the same by such water find-
ing its way over or through the earth to such lower tene-
ment, provided it be not in the form of a proper watercourse.
Thus there are often more or less extensive tracts of land
in which water rises or collects in a stagnant state, form-
ing swamps or swails, and which occasionally con-
[*359] *tribute to the supply of running streams upon the
land of others by overflowing or soaking through
1 Bentz V. Armstrong, 8 Watts & S. 40.
2 Earic V. Dc Iltirt, 1 Bcasl. 280.
Sect. 6.] RIGHTS IN RAIN AND SURFACE WATER. 435
the intermediate soil. And attempts have been made by
those interested in such streams to prevent the owner of the
land on which such waters have collected from interrupting
their transit into the stream.
But water, whether it has fallen as rain or has come from
the overflow of a pond or a swamp, which sinks into the top-
soil and struggles through it, following no defined channel,
is deemed, by law, absolutely to belong to the owner of the
land upon which it is found, for the purpose of enabling him
to cultivate his land by controlling or draining it off' in the
mode most convenient to him.
But the right of the owner of such land over the water
therein, is not affected by any right in the owner of an ad-
joining river, pond, or tank which it may chance, for the
time, to feed, though that time has been ever so long pro-
tracted. It is, in the eye of the law, as well as of common
sense, the moisture and a part of the soil with which it inter-
mingles, to be there used by the owner of the soil if to his
advantage, or to be got rid of if he pleases, if it is to his det-
riment.^
8. One of these cases was Broadbent v. Ramsbotham.
The plaintiff owned a mill, which had been operated for
fifty years by the waters of a natural stream which flowed
along the foot of a range of hills, upon the side of one of
which was the farm of the defendant. On this farm there
were bog^g-y places in which water collected from the want
of proper drainage. And on another part of this slope was a
swamp occasioned by a small ridge of land which prevented
the surface water from flowing into the valley, and in this
water was generally to be found.
There were two or more wells upon the premises, which
were supplied from these marshy and swampy places, and by
subterranean waters, and occasionally overflowed, and the
water thereof ran into the stream, but not in a defined chan-
nel. The defendant constructed several drains in his land,
1 Buifum V, Harris, 5 R. I. 253 ; ante, p. *2II.
436 THE LAW OF EASEMENTS AND SERVITUDES. [Cir. III.
and partly filled up the swamp and some of the wells, the effect
of which was to prevent the water that fell upon these slopes
of the hills, or were collected in these swampy places, or
in these wells from underground sources, from penetrating
into or flowing over the land and reaching the stream as it
had formerly done. And for this diversion the plaintiff
brought his action.
The court held that the plaintiff's rights were limited to
" the flow of water in the stream itself, and to the water
flowing in some defined, natural channel, either subter-
ranean or on the surface, communicating directly with the
brook itself. No doubt all the water falling from heaven,
and shed upon the surface of a hill, at the foot of which a
brook runs, must by the natural force of gravity find its
way to the bottom, and so into the brook ; but this
[*360] does not *prevent the owner of the land on which
this water falls from dealing with it as he may
please, and appropriating it " before it arrives at some natu-
ral channel already formed. They held that the owner of
the soil had a right to drain the shallow pond at his pleas-
ure. The same was true of the boggy or swampy place in
which the water formerly stood, nor did it make any differ-
ence that there must have been subterranean courses con-
necting these with the stream, since they were not traceable,
nor did the fact that one of the wells sometimes overflowed
affect the defendant's right to control or divert the water in
it. And as to the other well, which occasionally overflowed,
and the water, when it did, spread itself upon the surface,
and did not form any natural channel until it reached the
valley, ib was held that the defendant had a right to appro-
priate and divert the same at any time before they had
reached the valley and formed themselves into a natural
channel.^
In one case the owner of a parcel of land in whicli was
a spring whicli had a defined outlet or fountain, sold the
1 Broadbent v. Kamsbotham, 11 P^xcli. G02.
Sect. C] RIGHTS IN RAIN AND SURFACE WATER. 437
spring and the right to draw water from it to its full extent
of supply. He afterwards laid drains through his land to
drain the top surface of the soil and render it susceptible of
cultivation. And it was held that he had a right so to do,
though, possibly, by so doing he might divert some portion
of water that would otherwise have percolated through the
earth to the spring, and increased its supply. But he would
have no right to do this on purpose to prevent the water from
supplying the spring, nor would he have a right to construct
his drain so carelessly or negligently as to draw the water
off from the spring or lessen the quantity of water therein.
The owner, in granting the spring, would be presumed to re-
tain the right of surface drainage for agricultural purposes,
unless plainly negatived by the terms and operation of the
grant.^
But where there were springs upon the upper parcel,
which rose upon the surface into ponds or pools, with a con-
stant supply, and found their way into the lower parcel, but
the space where they rose upon the surface was so near the
boundary of the lower parcel that the water could not form
for itself a defined channel or channels, it was held that the
owner of the upper parcel had no right to pump up and
divert the waters of these ponds or pools, and thereby de-
prive the lower parcel of the use and benefit thereof, al-
though no defined watercourse or channel had been formed
from the one into the other.-
9. The court, in Broadbent v. Ramsbotham, refer to the
case of Rawstron v. Taylor, as confirming the views sus-
tained by them. In that case, plaintiff owned and occupied
mills and a reservoir, fed by streams flowing to the same,
and his claim for damages was for the diversion of water
which had formerly gone to supply these, by acts
done by *the defendant upon his own land. The [*361]
facts are very numerous and difficult of explanation
without a plan. But the opinion of the court will be suffi-
1 Buffum V. Harris, 5 11. I. 243.
2 Ennor v. Barwell, 2 Giff. 410, 426.
438 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
ciently explicit to show the rule of law in cases such as are
above supposed. As to one of the alleged diversions, the
court say : " This is the case of common surface water rising
out of springy or boggy ground, and flowing in no definite
channel, although contributing to the siipply of the plain-
tiff's mill. This water having no defined course, its supply
being merely casual, the defendant is entitled to get rid of it
in any way he pleases." So as to the other case of diver-
sion they say : " This water has no defined course, and the
supply is not constant ; therefore the plaintiff is not entitled
to it, and the defendant is entitled to get rid of this also, for
the purpose of cultivating his land, in any way he pleases."
There was one other source of supply which the defend-
ant had diverted, which consisted of an artificial channel,
but which was controlled by a deed between the parties,
which can throw no light upon the general question under
consideration, and is therefore omitted, except to say that,
not being a natural watercourse, the plaintiff woiild have
no right of action against the defendant for diverting the
water flowing therein, independent of the grant under which
the plaintiff claimed. Piatt, B., in giving his opinion upon
the first two cases of diversion, says, " As this was merely
surface water, and the defendant had a right to drain his
land, and the plaintiff could not insist upon the defendant
maintaining his fields as a mere water-table," the defendant
was entitled to judgment. And Martin, B. adds : " He is
at liberty to get rid of the surface water in any manner that
may appear most convenient to him ; and I think no one has
a right to interfere with him, and that the object he may
have had in so doing is quite immaterial." It may be
stated, though it seems not to have been made a point in
the case, that the plaintiff's mill was an ancient one, and
had enjoyed the benefit of the water from the swamps
[*362] and *the surface of the defendant's land, which was
the subject of the suit, from an ancient period. ^
1 Broiidbent v. lliiinsbotlmin, 1 1 Exch. 3G9. Sec Stetson v. Ilowlaml, 2
Allen, 591.
Sect. 6.] EIGHTS IN RAIN AND SURFACE WATER. 439
10. The rule is briefly stated in Dickinson v. Canal Co. :
" Where the springs come to the surface, and form streams
and rivers, the established rules apply, that each riparian
owner is entitled, not to the property in the flowing water,
but the usufruct of its stream, for all reasonable purposes,
to drink, to water his cattle, or to turn his mills, according
to the nature and situation of the stream." ^
11. A question of this kind arose in Luther v. Winnisim-
met Company, where the rule of law was stated to be as
follows : " If there was a watercourse or stream of water
running through the land conveyed, the right to the con-
tinued flow thereof would pass to the plaintiff under his
deed as parcel of his grant. But if there were no such
watercourse or stream of water, the plaintiff could not claim
a right of drainage or flow of water from off his land on to
or through the defendant's land, merely because the plain-
tiff's land was higher than the defendant's, and sloped to-
wards it, so that the water which fell in rain upon it would
naturally run over the surface in that direction." The court
go on to define what is meant by a watercourse, the stopping
of which would be a cause of action, namely, " A water-
course is a stream of water usually flowing in a definite
channel, having a bed and sides or banks, and usually dis-
charging itself into some other stream or body of water. To
constitute a watercourse, the size of the stream was not im-
portant ; it might be very small, and the flow of the water
need not be constant ; but it must be something more than
the mere surface drainage over the entire face of a tract of
land, occasioned by unusual freshets or other extraordinary
causes," and it is a question for a jury whether, in any given
case, a watercourse exists or not.^
1 Dickinson v. Grand Junction Canal Co., 7 Exch. 301.
2 Luther v. Winnisimmet Co., 9 Cush. 171; Asliley v. Wolcott, 11 Cush.
192 ; as to what is a channel, see Dudden v. Guardians of Poor, &c., 1 Hurlst. &
N. 627 ; Rawstron v. Taylor, 1 1 Exch. 369 ; Shields v. Arndt, 3 Green, Ch. 234,
246 ; Goodale v. Turtle, 29 N. Y. 466, 407 ; Beard v. Murphy, 37 Verm. 104 ;
Bangor v. Lansil, 51 Maine, 525; Park v. Newburyport, 10 Gray, 28.
440 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
[*363] ^SECTION VII.
OF RIGHTS IN SUBTERRANEAN WATERS.
1. Subject a recent one in courts.
2. No action lies for diverting underground springs.
3. Otherwise, if water runs in a defined cliannel.
4. Rule of the Civil Law in such cases.
5. Case of Acton v. Blundell. Diverting underground Avaters.
6. No one may damage another by underground water.
7. Case of Chasemore v. Richards. Right to underground water.
8. Distinction between underground channels being known or not.
9. One may not divert a stream by digging wells on its banks.
10. Law as to waters collecting in mines.
11. American cases. As to diverting underground supplies of water.
12. Case of Roath v. Driscol. No prior right by prior use of such water.
13. Different rule as to prescriptive right gained in such waters.
14. Ellis V. Duncan. Case of diverting sources of a spring.
15. Wheatley v. Baugh. Same subject.
16. One may not divert such sources except in his own land.
17. Of fouling underground sources of a well.
18. How far one maj' prescribe for underground waters.
1. "While the rights and liabilities of adjacent land-owners
in respect to streams of water flowing upon the surface have
come under the frequent cognizance of courts for a period as
long almost as courts have been known, the law regulating
the use and enjoyment of springs and currents of water
existing underground has been but little discussed until a
comparatively recent day.
We are authorized by Pollock, C. B.i to say, that the dis-
tinction was made for the first time between underground
waters and those which flow on the surface, in the case of
Acton V. Blundell,^ which was decided as recently as 1843,
though it is believed that there may be found earlier
[*364] causes, both in England and this country, where *the
doctrine therein maintained was enunciated as law.
Since the decision of tliat case, the question has come up in
various forms in both countries, and the same general course
1 7 Exch. 300. 2 Acton v. Blundell, 12 Mecs. & W. 324.
Sect. 7.] EIGHTS IN SUBTERRANEAN WATERS. 441
of ruling in respect to it has been pursued hy the several
courts.
2. It may be stated as a general principle of nearly uni-
versal application, that, while one proprietor of land may
not stop or divert the waters of a stream flowing in a surface
channel through it, so as to deprive a land-owner whose
estate lies upon the stream below that of the proprietor first
mentioned of the use of the same, or essentially impair or
diminish the use thereof; if, without an intention to injure
an adjacent owner, and while making use of his own land to
any suitable and lawful purpose, he cuts off, diverts, or
destroys the use of an underground spring or current of
water which has no known and defined course, but has been
accustomed to penetrate and flow into the land of his neigh-
bor, he is not thereby liable to any action for the diversion
or stoppage of such water.
Thus it is said, " no land-owner has an absolute and
unqualified right to the unaltered natural drainage or perco-
lation to or from his neighbor's land. In general, it would
be impossible to avoid disturbing the natural percolation or
drainage without a practical abandonment of all improve-
ment or beneficial enjoyment of his land." ^ " We are of
opinion that the law of the land can recognize no such
claims (claims in respect to subsurface waters without any
distinct and definite channel), and that, subject only to the
possible exception of a case of unmixed malice, ciijus est
solum ejus est usque ad caelum et ad inferos, applies to its
full extent." " In the absence of express contract, and of
positive, authorized legislation as between proprietors of
adjoining lands, the law recognizes no correlative rights in
respect to underground waters percolating or filtrating
through the earth, and this, mainly, from considerations
of policy." ^ In the case, from the opinion of the court in
which these extracts are made, the defendant dug '' a hole "
1 Bassett v. Company, 43 N. H. 573.
2 Frasier v. Brown, 12 Ohio, St. 304, 311.
442 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
ill his land, which cut off and stopped the sources and supply
of a spring which had previously risen in and supplied the
plaintiff's land with water. " We are not to be understood
as intimating that an owner may maliciously or negligently
divert, even an unknown subterranean stream, to the dam-
age of a lower proprietor. But, in the enjoyment of his
land, he may cut drains or mine a quarry, though, in so
doing, he interfere with the flowage of water in hidden,
unknown, underground channels." ^ In this case the de-
fendant opened a mine in his own land, 300 feet from the
plaintiff's spring, which had never been dug, and cut off the
supply of water, and it was held to be no legal wrong. On
the other hand, no one can claim a right to have under-
ground percolating waters drained from his land into or
through that of another, or compel the owner of the latter
to abstain from doing that on his land which will pre-
vent the water from draining from the parcel first meu-
tioned.2
But he may not foul or poison the water which percolates
through his land, so as to come to that of another in a state
to be deleterious to the health of man or beast.^
3. This, it will be understood, does not include well-
defined streams of water which are found in some parts of
the country, which in their course sometimes appear upon
the surface, and then become subterranean for a longer or
shorter distance. Nor, for the present, does it intend to
touch upon the point how far one can acquire an easement
in subterranean waters.
The cases in which the question has been considered may
be stated, generally, to have been those of springs of water
flowing naturally from the earth above ground, wells where
the water is obtained by artificial excavation, and waters
1 Haldeman v. Bruckhanlt, 45 Penn. 521.
2 Goodale v. Tuttle, 29 N. Y. 466.
3 Ilodgkinson v. Ennor, 4 B. & Smith, 229 ; ante, p. *224 ; 12 Am. L. Reg. 240,
by Redficld.
Sect. 7.] RIGHTS IN SUBTERRANEAN WATERS. 443
accumulating in mines, while working them, by percolation •
and draining through the adjacent formation.
4. The civil law upon the subject is thus stated in the
Digest 1 : " Denique Marcellus scribit cum eo qui in suo
fodiens, vicini fontem avertit, nihil posse agi, nee de
dolo *actionen. Et sane non debet habere, si non [*365]
animo vicino nocendi, sed suum agrum meliorem
faciendi id fecit." The English of which, as given by Maule,
J., is, " If a man digs a well in his own field, and thereby
drains his neighbor's, he may do so unless he does it mali-
ciously."'-^
5. This doctrine of Marcellus is approved by Tindal, C.
J., in Acton v. Blundell, who says, in regard to the ques-
tions in that case, that no case bearing directly was cited on
either side.
The case was this. The plaintiff, Acton, owned a mill
which was operated by water flowing from a well dug in his
own premises by a former owner of both the mill and the
land in which the well was dug. About four years before
commencing the present action the plaintiff had enlarged
the well for the purpose of supplying more water for his
mill. The defendant subsequently opened and sunk a coal-
mine in his own land, at the distance of three quarters of a
mile from the plaintiff's well, the effect of which was to cut
off the underground veins and currents of water which sup-
plied the plaintiff's well, and to prevent his operating his
mill. To an action for this injury, the judge at Nisi Prius
held, that if the defendant, in properly working a mine in
his own premises, caused a diversion of the water from the
1 D. 39, 3, 1, 12.
- Acton V. Blundell, 12 Mees. & "W. 336 ; "While Bartlett, J., in Bassett v.
Company, 43 N. H. 579, expresses a doubt as to our decisions having tended in the
direction of Acton v. Blundell, the English court, Crompton J., in New River
Co. V. Johnson, 2 E. & Ellis, 44.5, says it is a decision of great authority, and
that the case of Dickinson v. G. Junction Co., 7 Exch. 282, not only did not and
could not overrule it, but was itself virtually overruled by the judgment of the
House of Lords in Chasemore v. Richards, 7 H. L. Cas. 349, in which Acton v.
Blundell is approved and acted upon.
444 TIIK LAW OK KASKMKNTS AND SKKVD IIDKS. [(Jir. III.
plaintilT's well :u\(\ mill, Ik; would not 1)0 lialdi; tlKM-ijCor. A.
j)()iiit \v;is iiiiulo by Uio j)l;iiiili('("'s (;ouiis(3l, tliat, if tli(! well
had enjoyed the water, though underground, f(jr twenty
years, the defendant would have no right to divert it. liut
in the present case the well had been dug in 1821, and tho
defendant began his mine in 1S'>7.
The court held, that " there was a marked and suljstantial
difference " betweiiii the law as to the I'ight to enjoy an un-
derground sjiriiig of watei- and thai by which a watercourse
flowing on the surface is governed ; " they are not governed
by the same rule of law."
[*3GGJ *Among the considerations ii])on wliicli this dif-
ference is based is, that the one ])cing notorious,
whoever buys or grants it, knows what passes, while the
other is secret and unknown at the time of purchase and
sale, and may l)e in its nature constantly shifting. Nor can
it ordinarily bo ascertained what part of the supply comes
from one's own land, and what from that of another. Nor
can there l)e any implied mutual consent or agreement as to
what shall he the future course of the current of the water
from its liaving ])reviously llowed in a known channel.
Another suggestion made l)y tlie court was, that, in the case
of running surface water, the land-owner could only appro-
priate the use of the water while flowing ; whereas, if by ex-
cavating a well, the land-owner can apj)i'oj)riate the water
whicli supplies it underground, it would he creating a prop-
erty in the water itself, and would, moreovei', })revent an ad-
jacent land-owner from enjoying tho water that is in his own
premises, after having incurred exjjenses in excavating for it
within his own land, though ignorant of any injury it might
occasion U) the owner of the ju'ior well. Ilesides, the benefit
to the one may be alt(^g(3ther disj)roportioned to the damage
to the other, if the rule of j)rior occupancy were a})plied, as
in the one case a well might bo designed lor the use of a
cottage only, ov a tlrinking-])lace for cattle, while, in order
to pi'eserve it, tiie owner of an extensive and valuable mino
Sect 7.] RIGHTS IN SUBTERRANEAN WATERS. 4-15
might be prevented from working it, to his own and the
public injury. And lastly, there can l)e no definite limits
within which the restriction, if applied, could be held to
operate.^ The court, moreover, were inclined to hold, that
the right to interfere with underground springs as supplies
for the wells upon the lands of adjacent proprietors was in-
cident to the general right of property which every man has
in and over his own land, whereby whatever is in a
man's *land beneath the surface is his, whether rock [*367]
or porous earth, whether in part soil and part water,
or wholly soil, which he may dig into and apply to such uses
as he pleases ; and if in doing so, without intent to injure
his neighbor, he cuts off or drains away the underground
springs which had supplied his well, it would be, as to him,
damnum absque injuria.
The same doctrine applies to injuries occasioned by depriv-
ing the owner of land of the water percolating underground
through that in which public works are being constructed,
by which the flow is stopped. Such land-owner has no rem-
edy by action for the loss.^
Wliat rule the court would a})ply had the well been an
ancient one, in the sense in which that term is ordinarily
used in respect to prescriptive rights, the judge raises a
query which is not answered by the case.^
6. The court in the above case refer to the case of Cooper
V. Barber, which they say was the nearest to a case of un-
derground currents of water which had till that time been
decided. The case is not a very satisfactory one, but is re-
ferred to from being thus alluded to by the court. In that
case, the owner of one parcel of land diverted water from a
natural stream by an artificial channel for the purpose of
1 The Artesian well at the Abattoir dc Grenelle, in Paris, is said to draw a
part of its sujiply from a distance of forty miles underground. 5 llurlst. & N.
986.
2 New River Co. v. John.son, 2 E. & Ellis, 446.
8 Acton V. Bluudell, 12 Mees. & W. 324; liadcliff's Exrs. v. Mayor, &c., 4
Comst. 195.
446 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
irrigating his own land. The water from this artificial
channel percolated through the plaintiff's land lying near it,
which was of a light porous structure. But this did not
show itself, nor do any damage to the latter owner, until,
wishing to erect a dwelling-house thereon, he dug a cellar,
and found that the water from this channel of the defendant
penetrated into it, doing damage to the owner. It was
sought to justify the right thus to manage the water by the
defendant, because he had enjoyed the same for a space of
time long enough to give him a prescriptive right. But the
court held that the owner of the first-mentioned parcel and
channel could not acquire a prescriptive right as against the
other land-owner, to keep up the water on his own land
to the injury of the other, so long as the injurious effect to
the land of the latter could not be known to him.^
[*368] *The court, in Humphries v. Brogden,^ allude to the
case of Acton v. Blundell, and point out a marked
distinction between the right which one has to have his land
supported by subjacent or adjacent lands, and the right to
running water. And Maule, J. again refers to it with ap-
probation in Smith v. Kenrick,^ and Wightman, J., with
Lord Chelmsford, in the House of Lords, more fully express
their approval of the doctrines of that case, in Chasemore
V. Richards.
7. The case of Chasemore v. Richards is an interesting
one from the importance of the questions decided, and from
the circumstance, as stated by Lord Wensleydale, that the
House of Lords thereby decided for the first time the ques-
tion as to underground water.
The case was first heard and decided in 1857, in the Ex-
chequer Chamber,* and afterwards, upon error, in the House
of Lords, in ISSO,"^ and in both in favor of the defendant,
1 Cooper V. Biirher, .3 Taunt. 99.
2 Humphries v. Brogden, 12 Q. B. 739, 753.
3 Smith V. Kenriek, 7 C. B. 515, 552.
* Chasemore v. Kicliards, 2 Ilurlst. & N. 168.
6 Ibid., 5 Ilurlst. & N. 982 ; 7 II. of L. Cas. 349.
Sect. 7.] RIGHTS IN SUBTERRANEAN WATERS. 447
though in one, Coleridge, J. was inclined in favor of the
I)laintiff, and in tlie other, Lord Wensleydale hesitated to go
as far as the Judges and House of Lords in sustaining the
doctrine contended for in behalf of the defendant. The
facts, as stated in the opinion of the Judges, were substan-
tially these. The plaintiff had an ancient mill, operated by
the waters of the river "Wandle. This he had enjoyed for
over sixty years. The river was supplied, in part, by the
water falling upon a pretty large territory, above the mill,
including the town of C. This water sank into the earth,
and found its way, percolating at different depths through
the earth, to the river, but in no defined course or current.
Tlie Board of Health of C. sunk a well in their land, about a
quarter of a mile from the river, for procuring water for their
use, and pumped it up therefrom, in great quanti-
ties, *for a supply of the town, and diverted so much [*369]
of the underground water which would otherwise
have found its way to the river as sensibly to affect the work-
ing of the plaintiff's mill. The action was for this diversion.
In respect to the right set up by the plaintiff, the judges
say : " It is impossible to reconcile such a right with the
natural and ordinary rights of land-owners, or fix any rea-
sonable limits to the exercise of such a right Such a
right as that claimed by the plaintiff is so indefinite and
unlimited, that, unsupported as it is by any weight of author-
ity, we do not think that it can be well founded, or that the
present action is maintainable."
Thus, one whose well is drained by constructing public
works near it, whereby the percolating waters which supply
it are cut off, can have no action for the injury.^
Lord Chelmsford, after speaking of water flowing in de-
fined channels, remarks : " But these principles, applicable
to streams, whether above or under ground, did not seem to
be applicable to water merely percolating through the ground,
which had no certain course or defined limits whatever.
1 New River Co. v. Johnson, 2 E. & Elli<, 435.
448 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
The right to water so percolating was of too uncertain a
description. When did it commence ? If the owner of the
land could not intercept it in its course through his land,
could he catch it in rain-water tubs, and prevent its reaching
the ground at all ? "
Lord Cranwortli remarked : " The argument founded on
the use to wliich the defendant applied this water did not
affect his mind at all, because he thought there was no dif-
ference in the case whether one owner sunk a well to supply
a thousand other owners, or each of these sunk a well to
supply himself."
8. It is not, however, the circumstance of a stream being
under or above the surface which determines the right of
the land-owner to interfere with the waters wliich are found
within his premises, but " its being or not being ascertained
and defined as a stream." If there is a natural spring, the
water from which flows in a natural channel, it cannot be
lawfully diverted by any one, to the injury of the riparian
proprietors. If the channel or course underground
[*370] is known, *it cannot be interfered with. It is other-
wise wlien nothing is known as to the sources of
supply. In that case, as no right can be acquired against
the owner of the land under which the spring exists, he may
do as he pleases with it, and if, in mining or draining his
land, he taps a spring, he cannot be made responsible.^
So in Dickinson v. Grand Junction Canal Co., the same
judge says : " If the course of a subterranean stream were
well known, as is the case with many which sink under-
ground, pursue for a short space a subterranean course, and
then emerge again, it never could be contended that the
owner of the soil under which the stream flowed could not
maintain an action for the diversion of it, if it took place
under such circumstances as would have enabled him to
recover, if tlic stream had been wholly above ground."^
1 Ter Pollock, C. B., Dudden v. Guardians of Poor, &c., I Hiirlst. & N. 627,
630 ; Frasier v. Brown, 12 Ohio St. 300.
2 Dickinson r. Grand Junction Canal Co., 7 Exch. 301.
Sect. 7.] RIGHTS IN SUBTERRANEAN WATERS. 449
9. On the other hand, if there be a diversion of the waters
of a stream by any land-owner, within his own premises, to
the injury of a lower proprietor, it matters not that it is
done by digging a well into which the water is diverted,
unless, perhaps, if the one who digs the well is ignorant,
and cannot, by any reasonable degree of care, have ascer-
tained, beforehand, that the digging of the well would have
the effect to divert the water, and when the effect is dis-
covered, is unable to repair the mischief.^
In addition to the cases above cited may be mentioned that
of Hammond v. Hall,^ decided in 1840, which relates to
subterranean water rights, but did not lead to any important
ruling, and is oidy referred to in order to introduce the
remark of the reporter, as a reason why he gives the case,
that "a question was raised in arguing it, which was
said never to have been discussed before, namely,
*whether a right or easement could be claimed [*371]
with respect to subterranean water."
There was the ancient case of Prickman v. Tripp,^ for
diverting water from plaintiff's well by digging a cistern
near it. But it does not appear what was the nature of the
supply of water which had been thus diverted, whether by
a defined stream or the percolations through the adjacent
earth.
10. The questions as to the rights of parties in respect to
underground water, in its effect upon the working of mines,
have grown out of causing or suffering the waters which
have collected by percolation intp one mine to flow into
another to the injury of the latter. The rule in such cases
seems to be, that, while one may not maliciously, or with-
out reason, cause the water which collects by percolation
through the earth in his own mine to flow into that of an-
other to the injury of the latter, if he does this in the usual
1 Dickinson v. Grand Junction Canal Co., 7 Excii. 282, 301.
2 Hammond v. Hall, 10 Sim. 551. See also Broadbent v. Kamsbotiiam, 11
Exch. 602, 615.
3 rritkman v. Tripp, Skinn. 389.
29
450 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
and proper mode of working his mine, he is not responsible
therefor. In such case, neither mine owes servitude to the
other, and each mine-owner may work his own in the man-
ner most convenient and beneficial to himself, although the
natural consequence may be, that some prejudice will accrue
to the owner of the adjoining mine, so long as that does not
arise from the negligent or malicious conduct of the party.
As was remarked by the court in the case cited below: " The
water is a sort of common enemy, against which each man
must defend himself. And this is in accordance with the
civil law, by which it was considered that land on a lower
level owed a natural servitude to land on a higher, in re-
spect of receiving, without claim to compensation, the water
naturally flowing down to it." ^
11. The American law, it is believed, conforms to the
English in the matter of underground currents, although
it is appreliended that it is more liberal in allowing
[*372] the * diversion of water flowing upon the surface for
the purposes of irrigation, than would comport with
the doctrine of some of the English cases.
Among the cases where the question of diverting under-
ground streams has arisen, is Greenleaf v. Francis, where
the plaintiff, in digging his cellar, struck upon a spring of
water which he deepened and converted into a well within
the cellar, and had used it for the purposes of his family for
about twelve years, when the defendant, having occasion to
dig a well in his own landj near the plaintiff's, struck upon
the vein of water which supplied the well of the latter, and
stopped the supply therein. Tlie court held that the defend-
ant did no more than he had a right to do, and tlie plaintiff
was without remedy. Considerable stress is laid by the
judge, in giving the opinion, upon the fact that the plaintiff
liad not enjoyed the supply of water for his well for twenty
years, though it is not in terms held that he would thereby
have acquired any better rights as against the acts of the
1 Smith V. Keiiiick, 7 C. B. 515, 566 ; D. 39, 3, I, 22.
Sect. 7.] EIGHTS IN SURTERRANEAN WATERS. 451
defendant. But the court expressly held that the defendant
would not in cither case have had the right to disturb the
plaintiff in the enjoyment of the supply of water for his well,
if done from malice.^
Tiie above case of Grccnleaf v. Francis was decided in
1836, seven years prior to Acton v. Blundcll. In 1837 a
question somewhat similar arose in New York, before the
Chancellor, upon an application for an injunction, which is*
stated here, in order, among other things, to give the chron-
ological sequence of the questions as they arose. In the
case referred to, of Smith v. Adams, the plaintiff had a
spring of water in his premises within a few feet of the de-
fendant's land. He had conducted water from this spring
by an aqueduct to other parcels of his land, and had used
the water thereof in this way for more than twenty years.
The defendant then dug in his own land, and struck
the * vein of water which supplied the spring near [*373]
the line of his land, and laid an aqueduct therefrom
to his house, thereby withdrawing a small portion which
would otherwise have flowed into the stream.
The Chancellor, in denying the right of the defendant
thus to divert the water, assumes that the same rule applies
as if the stream had issued upon the defendant's land, treat-
ing it of course as if it had become a defined watercourse,
though underground. Another circumstance in the case
was, that the defendant dug into his own ground with the
knowledge and intent that by so doing he could and would
divert the water which would otherwise supply the spring in
the plaintiff's land. And because the water, thus diverted,
"is a part of the larger stream which naturally issued from
the earth upon the spring lot (the plaintiff's) below," the
plaintiff, in the opinion of the Chancellor, had a legal right
of action against the defendant for such diversion, although.
1 Grreenleaf v. Francis, 18 Pick. 117. See also N. Albany R. R. v. Peterson,
Ulnd. 112.
452 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
for reasons stated in his opinion, he did not see fit to grant
the injunction prayed for.^
Tlie next case in the order of time was Dexter v. Provi-
dence Aqueduct Co.,^ in 1840. The plaintiff in that case
was the owner of a meadow in which there was a spring of
water which he had applied to purposes of irrigation and
watering his cattle for more than twenty years. The de-
fendants dug a large well near the plaintiff's meadow, for
the purpose of obtaining water with which to supply the
city of Providence, the effect of which was to divert the
water from the spring, and to render it dry. Tlie judge,
chiefly upon the strength of the case of Balston v. Bensted,"^
which will be hereafter considered, held that the plaintiff
was entitled to an injunction restraining the defendants
from thus diverting the water. But the case is not
[*374] *elaborately considered, and the opinion seems to
be rather in the light of an interlocutory judgment
than a final opinion upon the matter as a question of law.
12. The case of Roath v. Driscoll,^ decided in 1850, is a
much more fully and ably considered case, in which the
court discuss the general doctrine of underground waters as
the subject of property. In that case the plaintiff sunk a
well or reservoir in his land, into which the water percolated
and stood in considerable quantity, but did not rise to the
surface. The defendant, without any intent to injure the
plaintiff, or cut off the supply of water in this well, dug a
like well or reservoir in his own land, near the plaintiff's,
and the plaintiff brought his bill to enjoin the continuance
of this, on the ground that the water that would otherwise
come to his reservoir was diverted to his injury. The plain-
tiff had applied artificial means, by way of a siphon, to raise
the water from his well over a higher level, to another reser-
1 Smith V. Adams, 6 Paige, 435. See Wlicatley v. Baugli, 2.5 Penn. St.
528.
'■^ Dexter v. Prov. Aqueduct Co., 1 Story, 387.
3 Halston V. Benstud, 1 CaTiipi). 463.
* Koath V. Driscoll, 20 Conn. 533.
Sect. 7.] EIGHTS IN SUBTERRANEAN WATERS. 453
voir, which he thereby supplied, which was also stopped after
the defendant opened his well or reservoir. But this arti-
ficial use of the water had not been continued long enough
to gain thereby any prescriptive rights.
It was expressly found, that wliatever water came to the
well of either party percolated through the earth, and not
in any defined channel or course. The court waive any
question that might have been made to any prescriptive
rights under a different state of things ; " for nothing," say
they, " is gained by a mere continued preoccupancy of
water, under the surface. Why should any advantage be
gained by preoccupancy ? Each owner has an equal and
complete right to the use of his land, and to the water which
is in it. Water combined with the earth, or passing through
it by percolation, or by filtration, or chemical attraction, has
no distinctive character of ownership from the earth
itself, not *more than the metallic oxides of which [*375]
the earth is composed. Water, whether moving or
motionless, m the earthy is not, in the eye of the law, distinct
from the earth Priority of enjoyment does not in
like cases abridge the natural rights of adjoining proprietors.
.... No man is bound to know that his neighbor's well is
supplied by water percolating his own soil, and he ought
not, therefore, to be held to lose his rights by such continued
enjoyment. He cannot know that the first well requires any
other than the natural and common use of water under the
surface, nor can he know from whence the water comes, nor
by what means it appears in one place or the other, nor
which of the persons who first or afterwards opens the earth
encroaches upon the i*ight of the other. The law lias not
yet extended beyond open running streams."
The court of Vermont adopted the doctrine of Roath v.
Driscoll, that undergound water filtering through the earth
is to be taken as a part of the soil, and the owner thereof
may take measures to prevent the water therein from perco-
lating into the land of an adjacent owner without thereby
454 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
violating tlie legal rights of the latter. In which respect the
rights of adjacent land-owners, in the matter of underground
waters, do not correspond with those whi6h govern the en-
joyment of waters flowing upon the surface in defined cur-
rents.
The facts in the case to which these doctrines were applied
were these. One land-owner, in order to avail himself of
water which percolated through another's land into his own,
sunk a hole in his own land, and inserted a cask therein to
receive the water. But the adjacent owner, in order to
prevent the water penetrating to the land of the first-named
owner, dug into his own land and placed hard earth therein,
which stopped the percolation of the water into the other's
land ; and it was held that the latter was without remedy for
the injury thereby occasioned.^
[*376] *There was a point made in the case of Chatfield
V. Wilson, which is purposely omitted, here, in order
to consider it more fully hereafter, and that is, how far the
owner of land adjacent to that in which there is an existing
well or spring can wantonly and maliciously cut off the
underground supply of water therefor, which is derived
through or from his land, by acts done upon his own prem-
ises.
13. Two inferences may fairly be drawn from the language
of the court in the case of Roath v. Driscoll, although not
directly stated. First, that a different rule from that ap-
plicable to water percolating through the earth would be
adopted in respect to w^ater flowing in a known, defined
current, though underground. And, second, that no mere
length of enjoyment of such percolating water, by means of
artificial wells or reservoirs, gives the one in whose land they
are dug any prior prescriptive right to such enjoyment as
against the proprietor of other lands, who, in digging a well
or "reservoir for liis own use, cuts off or diverts the supply of
the wells of the former owner.
1 Chatfield v. Wilson, 28 Vt. 49; s. c, 31 Vt. 358. Sec Harwood v. Benton,
32 Vt. 724.
Sect. 7.] RIGHTS IN SUBTERRANEAN WATERS. 455
14. In 1855, anotlicr case was decided in the Supreme
Court of New York,^ where it was attempted to enjoin the
defendant from opening ditclies in his own land, and work-
ing a quarry of stone thereon, because by so doing he inter-
cepted the waters of an underground source of a spring in
the plaintiff's land which supplied a small stream of water
flowing partly through the lands of both parties. It will be
perceived that this presented a dilTerent question from that
in the last-cited case, inasmuch as the spring which was
affected was a natural one, the head and source of a stream
of water flowing upon the surface ; and the purposes of the
party occasioning the loss were partly for the cultivation of
his farm, and partly the opening and working a quarry, and
had no reference to making use of the underground water
upon his own premises. The court refused the ap-
plication, *remarking : " It seems to me that the [*377]
rule that a man has the right to the free and abso-
lute use of his property, so long as he does not directly
invade that of his neighbor, or consequentially injure his per-
ceptible and clearly defined rights, is applicable to the inter-
ruption of the sub-surface supplies of a stream by the owner
of the soil, and that the damage resulting from it is not the
subject of legal redress." In this, as in most of the later
American cases, the case of Acton v. Blundell, before cited,
is referred to with approbation. But it was conceded by
the counsel on both sides, that the American courts have
considerably modified the English law of easements gener-
ally.
The doctrine of Acton v. Blundell, above cited, as to
cutting off underground streams of water which supply the
well of another, is recognized and reaffirmed by Bronson, C.
J., in Radcliff 's Exrs. v. Mayor, (tc.^
15. In the same year (1855) the case of Wheatley v.
1 Ellis V. Duncan, 21 Barb. 230.
2 Radclilf's Exrs. v. Mayor, &c., 4 Comst. 195, 200. See also Bellows v.
Sackett, 15 Barb. 96.
456 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
Baugli ^ was decided in a full and elaborate opinion by Lewis,
C. J. The facts of the case were these. The plaintiff, as
lessee, occupied premises having upon them a valuable
spring from 1824 to 1853, the water of which was important
for the carrying on his business as a tanner. In 1852
defendant began to work a valuable copper-mine on his own
premises, five hundred and fifty yards from the spring. And
in 1853, in prosecuting his work, he cut off the supply of
water from the spring, to the great injury of the plaintiff.
The court, in the first place, recognizing the distinction
between mere percolating waters and those flowing in a
stream, and applying the same rule to such streams, whether
above or underneath the surface, add : " To entitle a stream
to the consideration of the law, it is certainly necessary that
it be a watercourse, in the proper sense of the term.
[*378] .... *A subterranean slreatn which supplies a
spring with water cannot be diverted by the pro-
prietor above for the mere purpose of appropriating the
water to his own use When the filtrations are gath-
ered into sufficient volume to have an appreciable value, and
to flow in a clearly defined channel, it is generally possible
to see it, and to avoid diverting it without serious detriment
to the owner of the land through which it flows. But per-
colations spread in every direction through the earth, and it
is impossible to avoid disturbing them without relinquishing
the necessary enjoyment of the land. Accordingly, the law
has never gone so far as to recognize in one man a right to
convert another's farm to his own use for purposes of a
filter Neither the civil law nor the common law per-
mits a man to be deprived of a spring or stream of water for
the mere gratification of malice The owner of land
on which a spring issues from the earth has a perfect right
to it against all the world, except those through whose land
it comes. He has even a right to it, against them, until it
2 Whoatloy v. Baufrh, 25 Pcnn. St. 528. Sec Wlictstone i\ Bowser, 29 Penn.
St. 59. Sec llaldcman v. Bruckhardt, 45 rcnn. 518, affirming Wheatlcy v. Baugh.
Sect. 7.] RIGHTS IN SUBTERRANEAN WATERS. 457
comes ill conflict with the enjoyment of tlicir right of prop-
erty. Strangers cannot destroy it, even though it be derived
from lands which do not belong to the owner of the spring."
These extended quotations state so fully and accurately
what is believed to furnish the true criterion between the
rights of owners of adjoining lands in respect to waters
found flowing above or underneath the surface of their re-
spective estates, that it is unnecessary to add to the state-
ments therein contained, except to remark, what will be
repeated hereafter, that the court held in that case that the
mere length of time for which the owner of the sj)ring had
enjoyed it had no effect to give him any prescriptive right to
the use of it, as against the defendant. And judgment in
the case was in favor of the defendant.
16. The case of Parker v. Boston and Maine Railroad,^ is
in affirmance of the position first stated, that if one
in *sinking a well upon his own premises causes the [*379]
water to flow from a well in another's land into his
own, it is, as to the latter, damnum absque injuria ; and,
second, if one, without being such owner, does acts upon the
land of another, which he was not authorized by the owner
to do, and which cause the diversion or loss of the water
which supplies the well upon another's land, he will be liable
to the latter in damages. The case was one where a railroad
company, in constructing their road across the land of A,
adjoining that of B, by their excavation cut off the sources
of supply of B's well, which had been derived through A's
land, and were held responsible for the damage thereby
occasioned.^
If now we resume the inquiry above referred to,'^ how far
one may maliciously do acts within his own land, whereby
he cuts off the underground supply of water which the
spring or well of his neighbor derives from or through the
same, we must recur to the case of Chatfield v. Wilson.^
1 Parker v. Boston & Maine R. E., 3 Cush. 107, 114.
2 But see New Albany R. R. v. Peterson, 14 Ind. 112.
3 Ante, pi. 1 2. * Chatfield v. Wilson, 28 Vt. 49.
458 THE LAW OF EASEMENTS AND SERVITUDES. |[Cii. III.
The facts in this case, it will be remembered, were, that
the defendant placed within his own land, and near the line
of the plaintiff's land, dry, hard earth, which prevented his
availing himself of the water which had before percolated
into the plaintiff's land, and supplied an artificial reservoir
placed therein, from which he had drawn it by pipes for the
use of his buildings. The court, in giving their opinion, say :
" The case, so far as it is sent up to us, only concerns the
right of the defendant to cut off the filtration of the water
from his own land to the plaintiff's tub by artificial means,
and the consequences, if ivantonly done." They further
say : " The act of the defendant in the obstruction of the
water being in itself lawful, could not subject the defendant
to damages, unless by reason thereof some right of
[*380] the plaintiff has been violated. The *maxim, sic
Ktere tuo ut alienum non IcpAcls, applies only to cases
where the act complained of violates some legal right of the
party ; . . . . and it may be laid down as a position not to
be controverted, that an act legal in itself, violating no right,
caAnot be made actionable on the ground of the motive
which induced it." And they refer, by way of analogy, to
the case of a man building upon his own land a high fence
for the purpose of darkening or obscuring the light from
the windows of a neighboring house, which, it has been held,
may lawfully be done. They also refer to a remark of the
court, in Greenleaf v. Francis,^ " that the rights of the de-
fendant should not be exercised from mere malice," and
add : " We think, as applied to a case like the one then at
bar, or the one now before us, the position was unsound,
and against principle and authority."
The case had come up, upon the ruling of Poland, J., late
Chief Justice of that court, wherein he instructed the jury
that, " If they found that the acts of the defendant did pre-
vent the usual and natural flow of the water in or under the
ground from the defendant's soil to the plaintiff's, and that
1 Greenleaf I'. Francis, 18 Pick. 117.
Sect 7.] EIGHTS IN SUBTERRANEAN WATERS. 459
these acts were done by the defendant solely with the pur-
pose of injuring- the plaintiff, and depriving him of water, and
not with any purpose of usefulness to himself, then he would
be liable to the plaintiff for such damages as he thereby sus-
tained."
In determining how far other courts have adopted the one
or the other of these two opposite opinions emanating from
such respectable sources, it will be necessary to refer to some
of the cases already cited, with the passing remark, as to the
case of the obstruction of windows above referred to, that it
has been held to be the only way in which, at common law, a
man could prevent his neighbor from acquiring a prescrip-
tive right to enjoy the light over his land in process of
time, resulting from merely having been suffered to
*enjoy it, whereas, as will be shown hereafter, [*381]
courts do not agree that one can acquire a pre-
scriptive right to an underground supply of water for his
spring or well by having enjoyed it for any length of time.
In the next place, the courts clearly and unequivocally
recognize the right to have a well or spring upon one's land
supplied by underground sources as so far an existing one,
which the law will protect, and punish the invasion of, that
if a stranger who has no right in the same go upon an adja-
cent lot from which this supply is derived and cut it off, he
will be liable therefor in an action by the owner of such
spring or well.^
It would therefore seem to constitute a something of which
meum and tuum might be predicated, and in regard to which
the maxim sic utere tuo, &c., would not be wholly foreign,
especially when the party destroying it does it by using his
property, not for his own benefit, but solely for the pur-
pose of depriving his neighbor of what he would otherwise
have rightfully enjoyed.
So far as authority goes upon the principal point, the
1 Parker v. Boston & Maine K. E., 3 Cusli. 107 ; Wheatley v. Baugli, 25
Penn. St. 528, 533.
460 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
court of Pennsylvania cite with approbation the language of
the court of Massachusetts, in Greenleaf v. Francis, which,
in the opinion of the court of Vermont above cited, is said
to be unsound and against principle and authority, and add,
in connection therewith : " Neither the civil nor the common
law permits a man to be deprived of a well or spring of wa-
ter for the mere gratification of malice In this de-
scription of property it is therefore peculiarly necessary that
each should be mindful of the necessities and rights of the
others. The owner of land on which a spring issues from
the earth has a perfect right to it against all the world, ex-
cept those through whose land it comes."
In Roath v. Driscoll,i the court, in giving their
[*382] opinion in *a like case of diversion of underground
water, are careful to say, " It is found that the de-
fendant is acting from honest motives to advance his inter-
est, without any design unnecessarily to injure the plain-
tiff's " ; and they quote from Greenleaf v. Francis, adopting
the language as their own : " In the absence of all right ac-
quired by grant or adverse user for twenty years, the owner
of land may dig a well on any part thereof, notwithstanding
he thereby diminishes the water in his neighbor's well, un-
less in so doing he is actuated by a mere malicious intent to
deprive his neighbor of water."
The court of Vermont, in a subsequent case to that of
Chatfield v. Wilson, in remarking upon that case, say :
" The only criticism that we have heard upon that decision
was in respect to excluding the wanton and improper motive
as an element in the ground of the defendant's liability. In
the present case there is no imputation of such motive."^
There was not, it is true, any" occasion, for the reason
stated, to concur or otherwise in that part of the former
ruling. But it is at least noticeable that the court pur-
posely avoid expressing any opinion thereon, while they do,
1 IloiUli V. Driscoll, 20 Conn. .'SSS.
2 Ilarwood v. Benton, 32 Vt. 737.
Sect. 7.] EIGHTS IN SUBTERRANEAN WATERS. 461
upon the main point, refer to it " as a sound exposition and
application of the law."
The civil law expressly places the exemption from liability
to an action of one who by digging in his own land inter-
rupts the course of the water that supplies his neighljor's
fountain, upon the intent with which the act is done : " Et
sane non debet habere (sc. do dolo actionem) si non ani-
mo vicino nocendi, sed suum agrum meliorem faciendi, id
fecit." 1
The case of Panton v. Holland was one for injuring the
foundations of a building placed by the plaintiff upon his
own land, near the line of the defendant's, by exca-
vations *made by the defendant in his own land. [*383]
Tlie house was a recent one, and the injury was
proved ; but the court held the defendant was not liable, un-
less he had made the excavation in a careless manner. But
the court say : " Suppose Holland (the defendant) had de-
clared that he would exercise his right of digging on his
own ground, contiguous to the plaintiff's wall, not to benefit
himself, but for the sole purpose of injuring the plaintiff,
and digs, accordingly, below the plaintiff's foundation, but
takes care that there be no ground for the charge of negli-
gence or unskilfulness in the exercise of his right ; consider-
ing himself safely intrenched within the protection of the
law, he desists from further operations, his object is accom-
plished, the adjoining foundation is loosened, and the build-
ing is materially injured, — is there a question that in such
a case the party injured would be entitled to recover dam-
ages ? The gravamen would, in the case put, arise from
the fact that the act was maliciously done." ^
In giving an opinion in the House of Lords, in Chasemore
V. Richards, Lord Wensleydale, referring to the civil-law doc-
trine in relation to cutting off the underground supply of a
1 D. 39, 3, 1, 12. See 2 J. Voet. ad Pandect. 669 ; 1 Lacroix, La Clef dcs
Lois Romains, 152, tit. Eau.
2 Panton v. Holland, 17 Johns. 92, 98.
462 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
well above referred to, says : " Every man, therefore, had a
right to the natural advantages of l)is land ; but those ad-
vantages were to be obtained subject to the principle sic utere
tuo, &c., and the civil law and the law of Scotland did the
same, forbade an act which was otherwise lawful, if done
animo vicino nocendi.^^ ^
17. In Brown v. lUius^ the court were inclined to the posi-
tion, that if, in the prosecution of a business, like the manu-
facture of gas, not a nuisance per se, one use materials upon
his land which penetrate into the earth and corrupt under-
ground sources of supply by percolating to a well upon a
neighbor's land, he would not be liable therefor. It
[*384] does *not stand upon the ground of corrupting run-
ning streams of water flowing to another's land.-^
18. A point has been alluded to more than once, in con-
sidering the cases upon the subject of rights to subterranean
water, and which never seems to have been deliberately set-
tled either in England or this country, and that is, how far
these rights are within the rules of prescription, or are sus-
ceptible of being maintained on the ground of exclusive
enjoyment for a length of time sufficient to establish such
right in ordinary cases of easements.
Courts, in giving opinions, have occasionally referred to
the case of Balston v. Bensted,* as settling the question,
without stopping to examine the soundness of the opinion
expressed therein at Nisi Prius. The case was of a spring
which the plaintiff had enjoyed within his own land, for
more than twenty years, in supplying water for a bath-
house. The defendant having occasion to work a quarry
in his land near the plaintiff's, dug a drain therefrom,
wliich was necessary to rid himself of the water accumulat-
ing therein, and by so doing drew down the head of water
1 Cliasemore v. Richards, .5 Ilui-lst. & N., Am. ed. 990.
2 Brown v. Illius, 25 Conn. .583.
3 But see llodgkinson v. Ennor, 4 B. & Smith, 229 ; 12 Am. L. Reg. 240;
Rcdficld's note.
* Balston v. Benstcd, 1 Campb. 463.
Sect. 7.] RIGHTS IN SUBTERRANEAN WATERS. 463
in the plaintiff's spring, so as to deprive him of water for his
bath-house. Lord Ellenboroiigh, upon the trial, remarked,
" That there could be no doubt but that twenty years' exclu-
sive enjoyment of water in any particular manner affords a
conclusive presumption of right in the party so enjoying it."
Story, J., in Dexter v. Providence Aqueduct Co.,i refers to
this case with approbation, as being " directly in point, if
indeed the same principle of law had not been fully I'ccog-
nized from very early times " ; and cites Sury v. Pigot,^
where the illustration drawn by the court from the law as
to running-water applies to the case of streams upon the
surface.
The case from Campbell, if law, is certainly a pe-
culiar *one, and seems to come more nearly within [*385]
the case of Smith v. Adams ^ than the ordinary case
of water supplying a spring or well by mere percolation, be-
ing rather of the nature of a defined though undergroimd
stream of water. It is described as " a gush of water from
a hole in the plaintiff's close, which used to run from thence
on the surface of the ground into the river." And so the
Chancellor, in the case above cited, seems to have regarded
it when he refers to it in giving his opinion.
The court in Massachusetts discuss, somewhat, the subject
of easements acquired by adverse possession, as connected
with the enjoyment of underground water for the supply of
wells, in the case of Greenleaf v. Francis,* but it was not
called for by the case, as the well alleged to have been
injured had been in existence only twelve or fourteen years.
In the case of Chasemore v. Richards,'^ Creswell, J. com-
ments upon the case from Campbell above cited, remarking
that Lord Ellenborough seems to have supposed the right of
a riparian owner arises out of some presumption of grant by
1 Dexter v. Providence Aqueduct Co., 1 Story, 387, 393.
'^ Sury V. Pigot, Poph. 166, 169.
3 Smith V. Adams, 6 Paige, 435.
* Greenleaf v. Francis, 18 Pick. 117.
5 Chasemore v. Kichards, 2 Hurlst. & N. 163, 183.
464 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
those liiglicr up the stream. " It is, therefore, probable that,
in the case then before him, which related to the water
springing up in the plaintiff's land, he meant that the enjoy-
ment of it for twenty years raised a presumption of grant, —
a presumption not generally made against those who had no
knowledge of the existence of that which they are presumed
to have granted." He states that no one in the case under
consideration had insisted upon the doctrine of presumption
being applicable, although it will be recollected that the
mill-owners who complained of the loss of water in that case
had enjoyed it more than sixty years. He states also that
the idea of a presumed grant in favor of riparian proprietors
of the enjoyment of running water was repudiated
[*386] *in the case of Dickinson v. Grand Junction Canal
Co.,^ since it is ex jure naturce, and an incident of
property, and adds : " It would seem, therefore, that the
Court of Exchequer, as constituted when that judgment was
given, would not have rested an opinion in favor of the
plaintiff, in Balston v. Bensted, on the ground stated by Lord
Ellenborough."
The court, in Roath v. Driscoll,^ state the question, and
intimate their opinion upon the subject in the following
words : " Have tliey, by mere prior occupancy, acquired an
advantage over the defendant, in the use of this water ? Or,
in other words, can one of two adjoining proprietors, by first
opening a watering-place, prevent other persons from doing
the same on their own lands, though by so doing water is
prevented from percolating the land so as to supply the first-
made reservoir ? .... As to adjoining proprietors, who
open the earth for reservoirs of water, this distinction
(whether it had been enjoyed a certain number of years or
not) is not the rule, for nothing is gained by a mere contin-
ued preoccupancy of water under the surface. Why should
1 Dickinson v. Grand Junction Canal Co., 7 Exch. 282. See, as to this case,
Crompton J., in New lliver Co. v. Jolmson, 2 E. & Ellis, 445.
'■^ Roatii V. Di-iscoll, 20 Conn. 533.
Sect. 7.] RIGHTS IN SUBTERRANEAN WATERS. 465
any advantage be gained by prcoccupancy ? Each owner
has an equal and complete right to the use of his hind and
to the water which is in ity
The ruling in this case seems to settle the law in respect
to wells or artificial reservoirs which are fed by percolating
waters, and the case already cited, of Wheatley v. Baugh,^
with equal directness, and at much greater length, applies
the same rule to cases of open natural springs within one's
land which are afifcctcd by excavations made for proper
purposes in the lands of others. " The prior occupancy of
the spring for the uses of a tannery gave no right of servi-
tude over or through the land of the adjacent proprietor.
No man, by mere prior enjoyment of the advantages of his
own land, can establish a servitude upon the land
of * another." Speaking of the effect of the enjoy- [*387]
ment of the spring for the period of twenty-one
years : " This depends upon the question whether the en-
joyment of the spring was of such a character as to have
invaded his neighbor's rights, so as to enable the latter to
maintain an action for the injury No presumption
can arise against a party, on the ground of long enjoyment
of a privilege by another, until it is shown that the privilege
in some measure interfered with the rights of the party
whose grant is proposed to be presumed, and that he had a
legal right to prevent such enjoyment by proceedings at law.
Presumption is when the conduct of the party out of posses-
sion cannot be accounted for without presuming a convey-
ance. Silence, or acquiescence, where one is not injured,
and has no cause of complaint, can never deprive him of his
rights, on the ground of presumption of a grant." The court
fully sustain the doctrine, that, if a spring thus situated, de-
pending upon percolations alone, and not a distinct water-
course leading to it, was diverted by the owner of the adjacent
land in the exercise of his proper business, and without neg-
ligence or malice on his part, it could make no difference
1 Wheatley v. Baugh, 25 Pena. St. 528.
30
466 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
that the owner of the spring had enjoyed the same for any
length of time prior to such disturbance. And, as a rule as to
what would be a legal presumption in such case, the court cite
Hoy V. ^terrett,^ that " to raise the presumption of a grant,
the enjoyment must have been adverse ; there must be a con-
tinued, exclusive enjoyment of the easement, with the knowl-
edge and acquiescence of the owner of the inheritance, for
twenty-one years (that being the period of limitation in Penn-
sylvania), which would be evidence from which a jury might
presume a right by grant or otherwise to such easement."
These cases seem to cover the whole ground upon which
a prescriptive right to underground water, not flow-
[*o88] ing in a *defined stream, could be placed, and to
settle that such a right cannot be maintained ; and
the later English cases substantially affirm the same doctrine.
Wightman, J., in giving the opinion of the judges, in the
House of Lords, in Chasemore v. Richards,^ speaking of
Balston v. Bensted, says the opinion therein expressed
" amounted only to the dictum of an eminent judge, followed
by no decision of the case, .... and is directly at vari-
ance with the judgment of the Court of Exchequer, in the
case of Dickinson v. Grand Junction Canal Co." And, in
commenting upon the question, whether the use of the water
by the plaintiff for over twenty years for working his mill
raises any presumption of a grant, says : " But what grant
can be presumed, in the case of percolating waters, depend-
ing upon the quantity of rain falling, or the natural moisture
of the soil, and, in the absence of any visible means of
knowing to what extent, if at all, the enjoyment of the
plaintiff's mill would be affected by any water percolating
in and out of the defendant's or other land ? The presump-
tion of a grant only arises where the person against whom it
is to be raised might have prevented the exercise of the
subject of the presumed grant ; but how could he prevent
1 Hoy V. Stcrrett, 2 Watts, .-JSO.
2 Chasemore v. Richards, .'j Hurlst. & N., Am. ed. 982.
Sect. 7.] RIGHTS IN SUBTERRANEAN WATERS. 467
or stop the percolation of water ? . . . . The right, if it exists
at all in tlic case of subterranean percolating water, is jure
natures^ and not by presumed grant, and the circumstances
of the mill being ancient would in that case make no differ-
ence." Lord Chelmsford in the case rebuts the doctrine of
Balston v. Bensted, and Lord Wensleydale, though he dif-
fered from the opinion of the judges in some respects, re-
marked that "he did not think that the princi})le of prescrip-
tion could be applied to this case. The true foundation of
the right was, that it was an incident to the land ex jure
naturcBr Though it should be stated that Coleridge,
J., in Chasemore v. Richards,^ in a *dissenting opin- [*389]
ion, inclines to sustain the plaintiff's right to water
percolating through the earth, on the ground of long and
uninterrupted enjoyment by means of a mill, which was
operated by the means of a river into which such water
found its way from the adjacent land.
So Gould, J., in the case of Ingraham v. Hutchinson, in
commenting upon the case of Balston v. Bensted, says :
" But I am unable to perceive why the plaintiff's right to
recover would not have been the same if his works had been
erected less than twenty years, or had not been erected at
all. For his natural right to the use of the spring was as
absolute, I conceive, as if the water had flowed in a rivulet
upon the surface through the defendant's land and his own,
in which case the diversion of the water would have been
an infraction of his natural right, though the diversion had
commenced immediately after his title to the land accrued." ^
The court of Ohio hold, that the doctrine of prescription or
presumption of grant from lapse of time, can have no proper
application to the law of percolating waters, the using of
one's own property, being lawful in itself, cannot make it ad-
verse to the lawful right of another.^
"When, in addition to the foregoing authorities, it is re-
1 Chasemore v. Ilichards, 2 Hurlst. & N. 1 86.
2 Ingraham r. Hutchinson, 2 Conn. .584, 597.
3 Frasierj;. Brown, 12 Ohio, 311. SeeHaldeman v. Bruckhardt, 45 Penn. 519.
4G8 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
membered that the common-law idea of prescription implies
a grant from an intelligent grantor of something with which
he intends to part, to a grantee who intends to accept it, and
that open adverse enjoyment in such cases is nothing more
nor less than evidence of such a grant, it is difficult to see
how the idea of such a grant having been made can be
raised, when neither party could have known that the one
was deriving anything from the other, and where the first
knowledge that the supposed grantor had of any water being
used by the supposed grantee, which had been derived from
the land of the former, was when, in the exercise of his own
right to dig within his own premises, he struck the vein that
fed and supplied the well of his neighbor. Tlie rule, as laid
down in the Code Napoleon, in respect to acquiring servi-
tudes by length of enjoyment, is : " Servitudes apparent and
continual may be acquired by writing, or by a pos-
[*390] session of *thirty years Continual servitudes
non-apparent, and continuable servitudes, apparent
and non-apparent, cannot be created but by writing." ^
SECTION VIII.
OF RIGHTS TO EAVES' DRIP.
1. Nature and character of this servitude.
2. How fiir it may exist in favor of the land-owner.
3. How far it is an easement in favor of a building.
4. Not hitherto recognized by common law in favor of land.
5. Enjoyment of eaves' drip does not authorize use of gutters.
6. It may not be changed to increase the burden. '
7. Effect on this servitude if the building is destroyed.
8. Rule of the Code Napoleon as to eaves' drip.
9. Land-owner may not interfere with the right by building.
10. Efl'ect of acts done on the land by consent of owner of the building.
IL How the right of eaves' drip should be exercised.
1. This right, which the owner of one estate may acquire
1 Art. G'JO, G91. See D. 8, ."S, 21 ; 2 Fourncl, Traite' du Voisinage, 411.
Sect. 8.] RIGHTS TO EAVES' DRIP. 469
in and upon the estate of an adjacent owner, was a servi-
tude known to the civil law under the name of stillicidium or
Jlumen^ according to the circumstances under which it was
enjoyed. It is also a well-known servitude or easement at
common law, and, under the name of droit de goiitticre, or
droit dVg-Qut des toits, is treated of at large in the French
law. It is in its character sufficiently akin to the servitudes
of water, which have already been treated of, to be con-
sidered in this connection.^
It grows out of the fact, that, for one to construct the roof
of his house in such a manner as to discharge the water fall-
ing thereon in rain, upon the land of an adjacent proprietor,
is a violation of the right of such proprietor, if done without
his consent, and this consent must be evidenced by express
grant or prescription.
*The mode in which this injury may be occasioned [*391]
may be by extending the roof of such building be-
yond the line of separation between the two estates, or by so
constructing it as to throw the water falling thereon, by its
own impulse and direction, across this line, and thereby
causing it to be discharged upon the estate of the adjacent
land-owner. For an injury of this kind, occasioned in either
way, the owner of the land may have an action against the
owner of the house. But where it is caused by projecting
the roof beyond the imaginary line that separates the two
estates, it is moreover violating the familiar principle of law
by which cujus est solum ejus est usque ad ccelum, since it mat-
ters not, so far as a right of action is concerned, whether one
breaks. another's close by crossing this imaginary line that
bounds it, upon, beneath, or above the surface, provided it be
done against his consent.^
1 Toullier, Droit Civil, 397 ; 2 Fournel, Traite du Voisinage, 113 ; 1 Le Page
Desgodets, 208, 209, 445.
2 2 Rolle, Abr. 140, citing 18 Edw. III. 22 b; Baten's case, 9 Rep. .53 ; Tucker
V. Newman, 11 Adolph. & E. 40 ; Fay v. Prentice, 1 C. B. 828, 838 ; Thomas v.
Thomas, 2 Crompt. M. & R. 34 ; Bellows v. Sackett, 15 Barb. 90 ; D. 8, 2, 1 ;
2 Fournel, Traite' du Voisinage, 113, 114.
470 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. 111.
In considering a case arising from the flow of water from
the eaves of a house upon adjoining land, the court said it
presented three questions : 1. Whether the grant of the
land extended to the body of the house. If it did, and the
owner of the house had openly claimed a right to have his
eaves hang over and -the drip fall on to the adjacent land for
the requisite time, it would be an acquisition of the land.
2. If the grant made the house a monument, the line of the
eaves would be the line of the land. 3. If, without claiming
the land, the eaves' drip had been enjoyed for the requisite
time, it would gain an easement in the land to that extent,
unless done by permission of the land-owner. ^
2. But though one may by prescription or grant acquire a
right to project the roof of his house beyond the line that
bounds his land, it is only of the servitude stillicidii vel
fiuminis recipiendi that it is now proposed to treat. It may
be remarked, however, that there was a servitude the reverse
of what is above expressed which might be acquired by the
civil law, by which one was not at liberty to turn the water
flowing from the eaves of his house upon his own land, when
the same had been enjoyed by another for the benefit of his
land for the requisite period to establish a prescription.^
3. Tiie right of the owner- of a building thus to discharge
the rain falling upon its roof upon the land of another, it
may be repeated, was a servitude by the civil law and an
easement at the common law. It was stUlicidium,
[*392] *if the water fell in drops from the eaves, but took
the name o^ Jiumen, if conducted in a stream by a
spout or gutter.'^
4. But the servitude stillicidii vel fiuminis non avertendi,
above mentioned, that is, the right in the land-owner to
1 Carhrcy v. Willis, 7 Allen, 370.
- 2 Toullier, Droit Civil, 396, 397 ; 2 Fournel, Traite du Voisinage, 114; D.
8, 2, 2.
8 1 KaiiflT. IMakelduy, § 312; Vinnius, Lib. 2, tit. 3, M ; Domat, Lib. I,
tit. 12, ^ 2, Art. 2 ; 2 Fournel, Traite du Voisinage, 114, and note; Cherry v.
Stein, 11 Md. 1, 25; Vincent v. MielicU, 7 La. 52; Alexander r. Boghel,
4 La. 312.
Sect. 8.] EIGHTS TO EAVES' DRIP. 471
insist upon having the water from another's caves discharged
upon his land, does not seem to be one that has liitherto
been recognized by the common law. So that, if the owner
of such building were to remove the same or change its roof,
and thereby stop such discharge, the land-owner would be
without remedy for any loss thereby sustained.^
6. If one acquire the right to have the water from his
roof discharged upon another's land in drops from the eaves
thereof, it does not give him a right to collect it in a spout
or gutter, and have it discharged in a united stream.^
6. If one acquires for his house the easement of eaves'
drip upon another's land, he cannot do anything to increase
the injurious effect thereby occasioned to such land, nor add
to the quantity by receiving water from other roofs upon his
own ; but he may change the form in which it is enjoyed,
provided he does not increase such effect. It has accordingly
been held that he might raise his house higher, but could
not reduce its height, because in the one case the drops from
the eaves would be less, and in the other more injurious in
their fall. If the owner of the house become the owner of
the land, the servitude as such would be extinguished so long
as the two were united in one ownership. But upon con-
veying the house again the servitude would revive.^
*7. If the house to which this servitude belongs be [*39o]
destroyed, the owner does not lose the easement if
he rebuilds the house in the same form and size of the for-
mer one. He may not alter its proportions or parts so as to
render the servitude more burdensome than it had pre-
viously been.*
And so strict was the civil law in this respect, that it did
not admit of covering the roof from which the water flowed
1 Arkwright v. Gell, 5 Mees. & W. 203, 233 ; Wood v. Waud, 3 Exch. 748,
778.
2 Keynolds v. Clark, 2 Ld. Raym. 1399.
3 Thomas v. Thomas, 2 Crompt. M. & E. 34, 40 ; 2 TouUier, Droit Civil,
398 ; 2 Fuurncl, Tiaite du Voisinage, 115 ; post, chap. 5, sect. 2, pi. 1.
* D. 8, 2, 20, 2 ; 2 Fourncl, Traite du Voisinage, 115.
472 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
with a material from which it fell with more force than from
that which had constituted the former covering of the roof.^
8. The Code Napoleon simply declares that " Every own-
er ought so to fix his eaves that the rain-water shall run on
to his own soil or upon the public way ; he cannot turn it
upon the land of his neighbor." ^
It is accordingly laid down in the French law, that if one
build a house near the premises of another, he ouglit to
leave space enough next the wall of his house, upon his own
land, to receive the water from its roof as well as from its
court and kitchen. And rules are given in some cities fix-
ing what this space shall be in certain cases. And a differ-
ent rule applies where the water falls directly from the
eaves from what it is if it is conducted off in a gutter or
spout.'^
9. Where one has acqviired an easement of eaves' drip
upon another's land, the latter cannot deprive him of it by
erecting upon the spot on which the water falls, any build-
ing of different height to prevent the discharge of the water
from the gutters or eaves of the dominant building.'*
[*394] *10. But if one, having such an easement, give per-
mission to the owner of the land on which the water
from his roof falls to build thereon so as to obstruct the dis-
charge of the water, the easement is thereby lost. It is like
the common case of the effect given to a license by the own-
er of the dominant estate to the owner of the servient, to do
something upon the latter estate which deprives the former
of his easement. It operates to extinguish the easement.^
1 D. 8, 2, 20, 4 , 3 TouUier, supra, 398.
2 Code Napoleon, Art. 681.
8 Pardessus, Traite des Servitudes, 322.
M. Pardessus examines at some length the question of legal presumption of
possession and ownersliip of the strip of land adjoining one's house upon which
the water falls from its eaves, where the owner of the adjoining land cultivates
it up to the wall of the house for a long period of years. Ibid. 323. See also
2 Fournel, Traite du Voisinnge, 422 ; " Tour de rechelle," &c.
* D. 8, 2, 20, 3 & 6 ; 3 TouUier, Droit Civil, 398 ; 2 Fournel, supra, 115.
'' D. 8, 6, 8; 2 Fournel, Traite' du Voisinage, 117; 3 TouUier, Droit Civil,
399 ; post, chap. 5, sect. 7, pi. 4.
Sect. 8.] EIGHTS TO EAVES' DPJP. 473
11. The obligation of the owner of a house, which has by-
prescription or otherwise the right of eaves' drip, so to man-
age the same as not to increase the injury thereby occa-
sioned to the adjacent owner, was considered in the case of
Bellows V. Sackett, already cited. ^ Tlio defendant's house
had stood twenty-five years, the plaintiff's about fifteen, and
was witliin two feet of the defendant's eaves. The water
from the defendant's house had been conducted by a gutter
to the ground upon his own premises, but he suffered this
to become decayed, and the water from that side of the roof
all fell between the houses upon one spot about midway be-
tween one end of the house and the other, and by percola-
tion found its wa}'^ into the plaintiff's cellar. The court, in
an opinion of no little ambiguity, growing out of the fact
that the water fell upon the defendant's own land, say :
" Here the defendant had the clear right to erect his bouse,
to cover it with a roof which would prevent the rains falling
upon the surface it covered, and to turn the water falling
upon such roof upon any portion of his own soil, at any
point, and in any quantity he might choose. But for such
interruption or diversion to the manifest injury of another,
he is clearly responsible. Here, owing to a want of suitable
repairs, the water falling upon an area of twenty-five feet by
thirteen is collected at a single point, and precipi-
tated *in an unnatural and unusual quantity and [*395]
manner so near the plaintiff's premises as necessa-
rily to cause him an injury." The judgment which was for
the plaintiff in this case, must, it would seem, rest upon the
last two or three lines of the above extract from the opinion
of the court.
1 Bellows V. Sackett, 15 Barb. 96, 102.
474 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
SECTION IX.
OF EIGHTS OF PASSAGE IN PUBLIC STREAMS.
1. The public have a right of way in public streams.
2. Of navigable streams at common law.
3. Other than navigable streams may be public.
4. Artificial streams, though navig.able, not public.
5. Of the test of what streams are public.
6. 7, 8. Rule in the United States as to what are public streams.
9. Property in public streams, and use of their banks.
10, 11. What streams public in the several States.
12. Of property in the banks and beds of streams.
13. How far the public may use the banks of a stream.
14. 15. How far one may occupy the stream and landings in using it.
16. Right to use banks of stream limited by what is necessary.
17. Of the doctrine of dedication to public use.
18. The public have uo right to use the banks of a navigable river.
19. Pearsall v. Post. Case of claim to occupy such bank.
20. When the public may use a private channel for passage.
21. Limit of one's power to dam a public stream.
1. This work would evidently be incomplete without no-
ticing, at least briefly, two other subjects growing out of the
existence of watercourses, considered in their broader and
more comprehensive sense of streams, both navigable and
not navigable ; and these are the easement of way which the
public has in them, and the rights of fishing, connected with
an interest more or less extensive in the banks and waters
of such streams.
It may be stated, in general terms, that the public have a
right of passage or way, like a public highway, by
[*396] ships, * boats, or other craft, upon and along the
course of all public rivers or streams.'^
1 Hale, De Jure Maris, Hargr. Law Tracts, 8, 9 ; Woolr. Waters, 33; 13 Co.
33 ; Bullock v. Wilson, 2 Port. 436 ; Morgan v. Reading, 3 Smedes & M. 366,
407 ; People v. St. Louis, 5 Gilm. 351 ; O'Fallon v. Daggett, 4 Mo. 343 ;
Hooker v. Cummings, 20 Johns. 90 ; Baker v. Lewis, 33 Penn. St. 301 ; Brown
V. Chadbournc, 31 Me. 9; Commonwealth v. Chapin, 5 Pick. 199; Arnold v.
Mundy, 1 Ilalst. 1 ; Cox v. State, 3 Blackf. 193; Gavit v. Cliambers, 3 Ohio,
495 ; La Plaisancc Bay Harbor Co. v. Monroe, Walk. Ch. 155; Bailey t?. Phila.
Sect. 9.] RIGHTS OF PASSAGE IN PUBLIC STREAMS. 475
But every stream is not a public one, nor does the com-
mon law agree in this respect with the law of many of the
States, nor are the rules adopted in regard to it by some of
the States the uniform law of all.
2. As a general proposition, all streams, whether of fresh
or salt water, arc prima facie public so far, if at all, as
the tide ebbs and flows in the same, and are classed under
the generic term of " navigable streams," and are public
highways.^
This doctrine is uniformly applied, by the English courts,
as laid down by Lord Hale, and especially in respect to
islands formed in the stream. In the one case they belong
to the crown, in the other to the riparian ov/ner or owners,
as the case may be.^
And yet every stream is not navigable because the tide
ebbs and flows in it. " Nor is it every small creek in which
a fishing-skiff or gunning-canoe can be made to float at high-
water, which is deemed navigable. But, in order to have
this character, it must be navigable to some purpose useful
to trade or agriculture. It is not a mere possibility of being
used under some circumstances, as at extraordinary high
tides, which will give it the character of a navigable stream,
but it must be generally and commonly useful to some pur-
pose of trade or agriculture."^
3. But public rivers are not necessarily navigable, in the
sense that the tide ebbs and flows therein. They may
B. & W. R. R. Co., 4 Ilarringt. 389 ; Blundell v. Catterall, 5 Barnew. & Aid.
268 ; Schurmeier v. St. P. & Pac. R. R., 10 Min. 103. Sec Peck v. Smith, 1
Con. 133 ; Davis v. Winslow, 51 Maine, 264 ; Gerrish v. Brown, lb. 256.
1 Hargr. Law Tracts, 6; Woolr. Waters, 31, 32, 33; Commonwealth v.
Charlestown, 1 Pick. 180; Arundell v. M'CulIoch, 10 Mass. 70; People w. Tib-
betts, 19 N. Y. 523 ; Anon., 1 Mod. 105, per Lord Hate; Rex v. Smith, Doug.
441 ; 3 Kent, Comm. 414; Rhodes v. Otis, 33 Ala. 593; Ellis v. Carey, 30 Ala.
725. Contra, Wilson v. Forbes, 2 Dcv. 30, North Carolina ; Veasie v. Dwinel,
50 Maine, 484.
2 Ford V. Lacy, 7 II. & Norm. 151.
3 Rowe V. Granite Bridge Corp., 21 Pick. 344, 347, per Shaw, C. J.; Burrows
r. Gallup, 32 Con. 501.
476 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
[*397] * become so by act of the legislature, or by imme-
morial usage. ^
4. On the other hand, the mere fact that a river may be
navigated by boats or water-craft does not make it a public
stream, if it was made so by deepening or widening a private
stream by the owner of the bed and banks thereof.^
And the capacity to be made navigable does not make it a
public river, unless it shall have been made navigable and
declared a public higliway by legislative act.^
5. The difficulty has been in finding any discriminating
test, which may be applicable alike to all streams, in deter-
mining whether their capacity is of a character to make them
public in their use or not. In England, the Thames above
London Bridge was held to be a public river .^ And the Way
and Severn, as well as sundry other streams.^
6. There seems to be a rule, pretty generally received in
the United States, that all streams are highways which are
capable of floating to market the produce of the mines, for-
ests, or tillage of the country through which they flow.^
But if it be above tide-water, the burden of proving it to
be a public river is upon the party making the claim.''
7. In New York and Maine, a stream seems to be
[*398] a *public one if it is capable of floating logs thereon
1 Hargr. Law Tracts, 8,9; Callis, Sewers, 216; Woolr. Waters, 31, 33;
M'Manns v. Carmichael, 3 Iowa, 1 ; State v. Gilmanton, 10 N. H. 467 ; Col-
lins V. Benbury, 5 Ired. 118 ; Berry v. Carle, 3 Me. 269 ; Baker v. Lewis, 33 Penn.
St. 301 ; Morgan v. King, 30 Barb. 9.
All " navigable rivers " in the territory northwest of the Ohio are declared
public highways by act of Congress. 2 Dane, Abr. 691 ; Tyler v. The People,
8 Mich. 320.
2 Hargr. Law Tracts, 9 ; Woolr. Waters, 33; Wadsworth v. Smith, 11 Me.
278. See People v. Piatt, 17 Johns. 195; Veasie v. Dwinel, 50 Maine, 479,
486.
8 Gates V. Wadlington, 1 M'Cord, 580.
* Rex V. Smith, Doug. 441.
s Hale, De Jure Maris, Hargr. Law Tracts, 9.
6 Browne v. Scofield, 8 Barb. 239 ; Stuart v. Clark, 2 Swan, 9 ; Walker v.
Shepliardson, 4 Wise. 486; Lorman v. Benson, 8 Mich. 18; Morgan v. King,
30 Barb. 9.
' Khodcs V. Otis, 33 Ala. 578 ; Ellis v. Carey, 30 Ala. 725.
Sect. 9.] RIGHTS OF PASSAGE IN PUBLIC STREAMS. 477
to market. If this were true only for a few clays in
the year, however, it would not fee sufficient.^ But if a
stream will float logs, for several weeks in a year, the dis-
tance of a hundred and fifty miles, it would be a navigable
stream for that purpose. And the doctrine is said to be one
of common law in Maine, that all rivers, capaljle, in their
nature, of being used for commerce, or the floating of logs,
rafts, boats, or vessels, are highways, and may be used by
the public for these purposes whenever their condition is
such as to admit of such use.^
In North Carolina and Pennsylvania the ebb and flow of
the tide is no test of a river being navigable.'^
Rock and Fox Rivers in Wisconsin are held to be navi-
gable streams.*
8. In California, rivers are not regarded navigable unless
sufficient to float a vessel used in transporting freight or pas-
sengers, or rafts of timber. But a mere capacity to float a
log would not be sufficient.'^
In Alabama the court held that a creek which could only
be used for floating timber for six or seven miles, where there
were no extensive forests to be accommodated by such a use,
and could only be used for floating rafts occasionally, accord-
ing to the state of the water, could not be deemed to be a
public, navigable stream, although it might be used to ad-
vantage by a single individual. " The public must be inter-
ested before it can become a public highway." And whether
a stream is a public highway or not is a question of law, after
the facts are ascertained.^
1 Curtis V. Keesler, 14 Barb. 511 ; Morgan v. King, IS Barb. 277, 288. See
Munson v. Hungerford, 6 Barb. 265.
^ Morgan v. King, supra; Brown v. Chadbournc, 31 Me. 9 ; Moor v. Veazie,
32 Me. 343, 357 ; Treat v. Lord, 42 Me. 552, 562 ; Knox v. Chaloner, 42 Me.
150 ; cites 1 Allen, N. B. 326.
^ Wilson V. Forbes, 2 Dev. 30 ; Ingraham v. Threadgill, 3 Dev. 59 ; Carson
V. Blazer, 2 Binn. 475 ; Barclay Road v. Ingham, 36 Penn. 201 ; Flanagau v.
Philadelphia, 42 Penn. 229.
* Wood V. Hustis, 17 Wise. 417 ; Cobb v. Smith, 16 Wis. 661 ; Harrington v.
Edwards, 17 Wise. 586.
^ American River Water Co. v. Amsden, 6 Cal. 443.
6 Rhodes V. Otis, 33 Ala. 578.
478 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
9. In Alabama, the right of property in navigable streams
is vested in the State, and the citizens have a right
[*399] of *easemcnt in the banks of the same for the pur-
poses of using them for navigation.^ And this ex-
tends to every watercourse in the State suitable for the or-
dinary purposes of navigation, as well above as below the
tide, and as such they are highways,^
In Mississippi, Illinois, Iowa, Minnesota, and Missouri, the
Mississippi River is held to be a public highway.^
10. In Pennsylvania, the Ohio,^ Alleghany,^ and Susque-
hanna ^ are held to be public highways. So is the Ohio in
Indiana " and in Ohio.^ And the Hudson, whether above or
below the tide, is a navigable river in New York.^ So are
the Schuylkill,^° Youghiogheny and Towanda " and Monon-
gahela^^ and Mohawk.^^ And these, though expressly stated
to be such, may be taken rather as representatives than as
exceptions in respect to most of the States wherein there are
considerable streams of water, for, in other cases, the princi-
ple is extended to all streams in New York which are actu-
ally navigable, whether above or below tide-waters.^* The
same is the case in Massachusetts,^^ In New Jersey the doc-
trine is stated, that navigable rivers, ports, bays, and coasts
I Mayor, &c. v. Eslava, 9 Port. 577, 604.
■^ Bullock V. Wilson, 2 Port. 436.
3 Morgan v. Reading, 3 Smedes & M. 366, 407 ; People v. St. Louis, 5 Gilm.
351; O'Fallon v. Daggett, 4 Mo. 343; Godfrey v. City of Alton, 12 111. 29;
M'Mauus V. Carmichacl, 3 Iowa, 1 Schurmeier v. St. P. &Pac. R. R., 10 Min. 82.
4 Baker v. Lewis, 33 Penn. St. 301.
5 Dalrymple v. Mead, 1 Grant's Gas. 197.
6 Commonwealth v. Fisher, 1 Penn. 462 ; Carson v. Blazer, 2 Binn. 475.
7 Porter r. Allen, 8 Ind. 1.
8 Gavit V. Chambers, 3 Ohio, 495.
9 Palmer v. Mulligan, 3 Caines, 307 ; Hooker v. Cummings, 20 Johns. 90.
w Flanagan v. Philadelphia, 42 Penn. 230.
II Barclay Road v. Ingham, 36 Penn. 200.
1^ Monongahcla Bridge v. Kirk, 46 Penn. 120.
13 People V. Canal Comrs. 33 N. Y. 461.
1* People V. Piatt, 17 Johns. 195, 211 ; Shaw v. Crawford, 10 Johns. 236 ; Post
V. Pcarsall, 22 Wend. 425.
15 Commonwealth v. Chapin, 5 Pick. 199 ; Knight v. Wilder, 2 Cush. 208.
Sect. 9.] RIGHTS OF PASSAGE IN PUBLIC STREAMS. 479
of the sea are common to all citizens for passing over, fishing,
or fowling.^
The public are held to have a right of way in all navi-
gable streams in Indiana^ and Ohio.^ And the
same, though *applied to the river Raisin, was held [*400]
to be the law of Michigan.* And all navigable riv-
ers are highways in Delaware.^
11. So in Connecticut and New Hampshire, the Connecti-
cut River has been held to be a public highway for all citi-
zens, for the purposes of boating and rafting, it having become
so in the latter State by long usage. And in Maine, all riv-
ers above the flow of tide which have long been used for tho
passage of boats, rafts, and the like, are public highways,
and may be used accordingly. And this extends to passing
upon the ice of these streams when frozen.^
In consequence of the superior capacity of the rivers in
America for practical navigation over those in England,
there is a general tendency to regard the civil rather than
the common law, in determining whether a stream is navi-
gable or not. If the same is large enough to admit of navi-
gation, it partakes of the character of a navigable river,
although it is not affected by the flood or ebb of the tide.
Such rivers are regarded as highways which it is unlawful
to obstruct. And in some of the States the principle of the
common law is applied, that the riparian owner is bounded
by the low-water mark of the stream, instead of extending
to its thread, as is the case with streams at common law
where there is no tide. Thus in Pennsylvania, low-water
mark is the boundary of riparian proprietorship.'' While
1 Arnold v. Munday, 1 Halst. 1. See O'Fallon v. Daggett, 4 Mo. 343.
2 Cox V. State, 3 Blackf. 193.
3 Gavit V. Chambers, 3 Ohio, 495.
* La Plaisance Bay Harbor Co. v. Monroe, Walk. Cli. 155; Lorraan v. Ben-
son, 8 Mich. 18; Rice v. Ruddiman, 10 Mich. 141.
5 Bailey v. Pliiladelphia W. & B. R. R. Co., 4 Harringt. 389.
Scott V. Willson, 3 N. H. 321 ; Adams v. Pease, 2 Conn. 481 ; Berry v.
Carle, 3 Me. 269 ; Spring v. Russell, 7 Me. 273 ; Ficnch v. Camp, 18 Me. 433.
7 Flanagan v. Philadelphia, 42 Penn. 229 ; M'Keeu u. Delaware Division, &c.,
49 Penn. 440.
480 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
in some of the States bounding on the Mississippi, it is the
tliread of that river. ^ A like doctrine to that of Pennsyl-
vania is maintained in New York.^ In Maine, the Penobscot
above tide-water is a highway, but not a navigable stream.^
But it seems that, in one respect, streams navigable by
statute or custom here, are not like those which are so by
the common law, since in respect to the latter the shore, the
space between high and low water, belongs to the sover-
eign ; here it belongs to the owner of the upland, and may
be built upon by him.*
The consequence of holding a stream navigable and pub-
lic is, that any obstruction placed therein may be treated as
a nuisance, and is the subject of indictment.^
From the character of highways given to streams which
are capable of affording navigation in their natural state, no
one may lawfully obstruct the passage of boats, &c., by
erecting and maintaining a permanent dam across the same,
unless he make provision for a convenient passage way
through or by his dam, for the public to use.*" He may
make and maintain temporarily a boom to collect and hold
the logs, though he may not permanently .interfere with
others in floating logs upon the same stream."
This extends to throwing into it any waste material, filth,
or trash, such as edgings of boards and the like.^ Nor does
1 Morgan v. Reading, S. & Marsh, 404 ; Middlcton v. Pritchard, 3 Scam.
510.
2 People V. Canal Comrs. 33 N. Y. 461 ; impugning former decisions upon the
same subject, Lawler i'. Wells, 13 How. P. C. 454.
3 Veasie v. Dwinel, 50 Maine, 479.
* Flanagan v. Philadelphia, 42 Penn. 229 ; Clement v. Burns, 43 N. H. 609,
617 ; Gough v. Bell, 2 Zabriskie, 441 ; Thurman v. Morrison, 14 B. Mon. 367 ;
O'Fallou V. Daggett, 4 Mo. 343.
6 llhodes V. Otis, 33 Ala. 578.
'' Vcasic V. Dwinel, 50 Maine, 479, 484 ; s. c, 44 Maine, 167 ; Davis v. Wins-
low, 51 Maine, 289 ; Brown v. Chadbourne, 31 Maine, 9 ; Knox r. Clialoner, 42
Maine, 150.
■^ Gerrish v. Brown, 51 Maine, 256 ; Davis v. Winslow, sup.
8 Veasie v. Dwiacl, 50 Maine, 490 ; ante, p. *282.
Sect. 9.] EIGHTS OF PASSAGE IN PUBLIC STREAMS. 481
any length of enjoyment give a party a right to prescribe for
a public nuisance.^
So a party obstructed in the use of a stream as a highway,
may himself remove it, as was held where one fastened his
raft of logs to the bank in such a manner as to prevent
another from landing at his own wharf in a boat.^
If one is authorized by the legislature to erect a bridge
across a navigable stream, and, in so doing, he flows back
the water on to another's land, he is liable in damages to the
owner, and the act of the legislature merely justifies him as
against an indictment for a nuisance to a public highway.^
But a state may authorize obstructions to be maintained in
navigable streams within it.^ And if the natural and neces-
sary effect of a bridge in a highway or railroad is to flow
back water on to another's land, it is regarded as one of the
incidental damages which are to be estimated and paid for
upon the location of the same, and not the ground of an
action on the case as for a wrong done.^
12. While the doctrine as to a public easement in navi-
gable streams, using the term in its broader sense as above
stated, seems to be well settled, the only question being,
what streams answer to that description, the respective
rights of the owners of the banks, and of those navigating
the streams, have been variously stated by different courts
and writers, and are not, perhaps, uniform at this day, under
the laws of the different States.
As a general proposition, though there are exceptions to
1 Veasie v. Dwinel, 50 Maine, 496. Commonwealth v. Upton, 6 Gray, 476 ;
People V. Cunningham, 1 Denio, 536 ; Davis v. Winslow, 51 Maine, 293 ; Ger-
rish V. Brown, lb. 256.
- Harrington v. Edwards, 17 Wis. 586.
■^ Eastman v. Company, 44 N. H. 143; Crittenden v. Wilson, 5 Cow. 165 ;
Ang. Water C. § 476 ; Thacher v. Dartmouth Bridge, 18 Pick. 502 ; Gardner v.
Newburgh, 2 Johns Ch. 162 ; Hooksett v. Amoskeag Co., 44 N. H. 105.
* Flanagan v. City of Phila., 42 Penn. 231 ; Wilson v. Blackbird Creek, &c.
2 Peters, 250 ; U. S. v. New Bedford Bridge, 1 W. & Minot, 407 ; Cobb v. Smith,
16 Wis. 661.
s Sprague v. Worcester, 13 Gray, 193; mite, p. *224.
31
482 THE LAW OF EASEMENTS AKD SERVITUDES. [Cii. III.
this in some States in respect to large rivers, like the Missis-
sippi, the owner of land upon the bank of a stream in which
the tide does not ebb and flow, is owner of the land under
the stream to its centre, or filum aqucc. While, if it be one
in which the tide does ebb and flow, he only owns to the
water's edge at high water.^
[*401] *But the riparian proprietor holds, in the first-
mentioned case, subject to the iise of the stream as a
highway over it, and may do nothing to obstruct such use.^
And this doctrine applies to the small lakes in the country.'^
But if lands border upon what are, technically, navigable
streams, the tide ebbing and flowing therein, and the public
see fit to stop the use of such stream as a highway, such
riparian proprietors have no better right for compensation
for such appropriation than any other individuals in the com-
munity, since they own no part of the bed of the stream.*
13. In some of the States the courts have been inclined
to hold, that the right on the part of the public to use a
stream as a liighway, by boats, rafts, and the like, carries
with it the right to land upon the bank of such stream as
occasion may require, or to secure boats to the trees stand-
ing on the bank, and for like uses. Thus in Mississippi, the
court, in speaking of the right of the navigator, say, that in
case of necessity he xnduj perhaps use the bank, or trees grow-
ing upon it, to secure his boat upon.^
The extent of the right which the public may exercise in
the banks of rivers, in connection with the use of the stream
1 2 Washb. Real Prop. 6.32, 6.34 ; Bard well v. Ames, 22 Pick. 354, as to the
Connecticut River; Lorman v. Benson, 8 Mich. 18, as to Detroit River. But
see, as to the Mississippi, M'Manus v. Carmichael, 3 Iowa, 1 ; D. 8, 3, 17. See, as
to the ownership of the shores of American lakes and rivers, Clement v. Burns,
43 N. H. 616 etseq.; ante, p. *399 ; Grant v. Davenport, 18 Iowa, 185.
2 Cox V. State, 3 Bhickf. 193; Gavit v. Chambers, 3 Ohio, 495; People v.
St. Louis, 5 Gilm. 351 ; Morgan v. King, 30 Barb. 9.
8 Rice V. Ruddiman, 10 Mich. 143.
* Bailey v. Phihi. W. & B. R. R. Co., 4 Harringt. 389.
6 Morgan v. Reading, 3 Sinedes & M. 366, 407. See also Lewis v. Keeling,
I Jones (Law), 299. But see Blundcll v. Catterall, 5 Barnew. & Aid. 268, per
Bayley, J.; Inst. 2, 1, 4.
Sect. 9.] EIGHTS OF PASSAGE IN PUBLIC STREAMS. 483
as a highway, within the former Territory of Louisiana,
seems to be somewhat peculiar, and to have been borrowed
from the Spanish legislation to which it once was subject.
The matter is considered in the case of O'Fallon v. Daggett,
wherein M'Girk, J. cites the language of the Partidas, sub-
ject to which the grants along the Mississippi were made by
the Spanish crown, that " rivers, ports, and public roads be-
long to all men in common, so that strangers coming from
foreign countries may make use of them in the same
manner *as the inhabitants of the place where they [*402]
are, might do ; and though the dominion or property
of banks of rivers belongs to the owner of the adjoining es-
tate, nevertheless every man may make use of them to fas-
ten his vessel to the trees that grow thereon, or to refit his
vessel, or to put his sails or merchandise there. , So fisher-
men may put and expose their fish for sale there, and dry
their nets, or make use of the banks for all like purposes
which appertain to the art or trade by which they live."
The court accordingly recognize these rights, but restrict
them, in the case of the navigator, to cases where, in the act-
ual prosecution of a voyage, his vessel needs repairs to ena-
ble her to proceed, but leaving the bank, if private property,
as soon as practicable. The right must be limited to cases
of emergency, and not extended to cases of mere conven-
ience. The navigator cannot obstruct the owner's enjoy-
ment of his land upon the bank beyond the reasonable limits
of necessity imposed on him at the time.^
14. In Pennsylvania, upon the ground that the Alleghany
is a public river for the transit of timber, it was held, that
any one wishing to make up a raft to be run upon the
stream had a right to make use of an eddy in the stream
for that purpose for a reasonable time, to the exclusion of
another, if he was the first occupant thereof, while its pools,
bars, inlets, and fastening-places are open and free for the
1 O'Fallon v. Daggett, 4 Mo. 343. See 4 Hall, Law Journ. 550; post, sect.
12, pi. 13.
484 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. III.
use of every one while using it, consistently with the same
right being enjoyed by every one else.^
15. So, the Ohio having been declared by that State a
public stream or highway for the passage of boats and rafts,
it has been held that it carried with it the right to moor boats
and other craft at " the well-known landings and wharves on
the stream " ; and that one who " moors his craft at an ac-
customed landing must be careful to leave sufficient
[*403] room *for the passer-by On the other hand,
the vessel in motion must, if possible, steer clear of,
and avoid, the one moored or at anchor." ^
It will be perceived that neither of these cases goes the
length of the case cited from Missouri, as to landing at any
point the boatman might see fit along the bank of a naviga-
ble stream. Nor do they state how the places indicated be-
came " well-known " or " accustomed " " landings."
That the public may acquire a right to use such " land-
ings" by dedication on the part of the owner of the soil, and
may thereby acquire an easement in an individual owner's
land, is now well settled, as has been heretofore shown. It
was so held in Godfrey v. City of Alton, in respect to the
landing-place at that city upon the banks of the Mississippi.^
But the right, for instance, to raft logs in a stream does
not involve the right of booming them upon private property
for safe keeping and storage^
16. In regard to the right to land upon other points upon
the banks' of a navigable stream than those which have in
some way become public landings, the law would seem to
confine it to cases of necessity, where, in the proper exercise
of the right of passage upon the stream of water, it becomes
unavoidable that one should make use of the bank for land-
ing upon, or fastening his craft to, in the prosecution of his
passage.
' Dalryniplc v. Mead, 1 Grant. Cas. 197.
2 Baker v. Lcwi.s, 33 Penn. St. 301.
'■^ Godfrey v. City of Alton, 12 111. 29 ; ante, chap. 1, sect. 5.
* Lorman v. Benson, 8 Mich. 33 ; Harrington v. Edwards, 17 Wis. 586.
Sect. 9.] EIGHTS OF PASSAGE IN TUBLIC STREAMS. 485
Thus in Maine it has been held that, if necessary in driv-
ing logs upon one of these streams for one to go upon its
bank in order to remove a log resting upon or against such
bank, he would have a right so to do. But he would not
have a right to use such bank for towing logs along the
stream. 1
*17. The doctrine of dedication of property to [*404]
public use, so far as it partakes of the nature of a
grant, forms an exception to an almost universal rule, that
a right by grant or prescription can only be acquired by
some person in existence who may be a grantee and grantor
in a deed. No case can be found in the English books
where a grant ha? enured to the personal use of all man-
kind. The public cannot, therefore, claim an easement by
prescription, though corporations and individual inhabitants
of towns may.^
The doctrine of dedication, moreover, applies generally
to rights like those of public streets and highways, open
commons or squares, landing-places upon navigable streams,
and the like. And though in one case it was held that a
spring of water might be reserved for public use in laying
out a village or city, it may be regarded rather as a custom-
ary right of the residents of a particular locality, than as a
public right like that of passing along a highway or navi-
gating a public stream.^
18. In the first place, there is no common-law right to
make use of the banks of a stream in navigating it.* Nor
is there a general custom for persons navigating such stream
to deposit goods on the banks thereof.'' And even if such
1 Treat v. Lord, 42 Me. 552 ; Ball v. Herbert, 3 T. R. 253, 260. See also
Lewis V. Keeling, 1 Jones (Law), 299 ; Regina v. Cluworth, 6 Mod. 163.
2 Cincinnati v. White, 6 Peters, 436 ; Pearsall v. Post, 20 Wend. HI; Curtis
V. Keesler, 14 Barb. 511. See ante, chap. 1, sect. 5.
3 M'Connell v. Lexington, 12 Wheat. 582. See Cincinnati v. White, supra.
See ante, chap. 1 sect. 5.
* Ball V. Herbert, 3 T. R. 253, 260. See Blundell v. Catterall, 5 Barnew. &
Aid. 268 ; 3 Kent, Coram. 417, note ; Bickel v. Polk, 5 Harringt. 325.
5 Chambers v. Furry, 1 Yeates, 167.
486 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
a riglit is exercised by individuals, upon one or more places
upon the bank of such stream, it does not give the public a
right to do the same, against the consent of the owner.^
It seems that such right of landing upon the es-
[*405] tate of * another may be acquired by the public as
an easement, for the pur{)0ses of a passage.^
19. What may be claimed as a public easement by way of
dedication was elaborately considered by the court of New
York, in Pearsall v. Post, already referred to. The question
in that case was, whether a public landing-place upon the
bank of waters navigable at common law, it being in that
case the shore of Long Island, could be claimed as a matter
of right for all the citizens. It will be •bserved, the claim
is not set up as a right necessary to the prosecution of a con-
tinuous passage by water, nor as being part of a highway
over which the public passed to reach other localities, to
which such way led. The court reviews, at considerable
length, the doctrine of the English, Scotch, and American
cases, wherein it is clearly maintained that the right of
streets, highways, and public passages may be gained to the
public by dedication. But they deny that any English case
warrants a claim, by dedication, to anything more than the
use of a passage-way, or of a public square and the like, or
recognizes any existing right in the public, irrespective of
living within the limits of some particular corporation, to en-
joy the use of the soil of another. They refer to Waters v.
Lilley^ as sustaining these views of the court, and criticise
the language of the court in Coolidge v. Learned ^ that the
right there claimed, that the locus in quo was a public land-
ing-place which every citizen of the Commonwealth had a
right to use, " is a prescriptive right, and as such is well
pleaded," as being inconsistent with the idea of a prescrip-
' Bethunc v. Turner, 1 Me. Ill ; Blundell v. Catterall, 5 Barnew. & Aid.
253, 268.
■■i Chambers v. Furry, 1 Yeates, 167 ; Cooper v. Smith, 9 Scrg. & 11. 26, 33.
3 Waters ?;. Lillcy, 4 Pick. 14.5.
* Coolidgo V. Learned, 8 Tiek. 504.
Sect. 9.] RIGHTS OF PASSAGE IN PUBLIC STREAMS. 487
tion which implies somebody to be grantees, as well as some-
body to grant, which that indefinite thing the public could
not be.
The right claimed in Pcarsall v. Post was that of landing
upon the plaintiff's premises, occupying them as a
*place of deposit of articles in transit, which the pub- [*406]
lie had been accustomed to do for more than twenty
years. The right was denied both in the Supreme Court,
and, upon revision, by the Court of Errors of New York,
who held that the doctrine of dedication could not be carried
beyond using it for purposes like those of public squares,
markets, highways, and promenades, excluding the right of
individuals to occupy the land of another for private use.^
And it may be incidentally remarked, that the mere leav-
ing an open space between one's house and the line of the
street or highway, is not a dedication of the same to the pub-
lic.2
20. It was held that if a man were to construct a channel
through his own land, whereby the water of a navigable
stream is made to flow through the same, he might be com-
pelled to stop the same as being a public nuisance, and if he
stopped or obstructed the use of the stream as a highway,
the public might use his new channel in the same manner as
they had done the original stream. But it would not give
them tliat right, if the obstruction to the use of the stream
was caused by another, and not by the owner of the land
through which the artificial channel was constructed.^
But if the public use such artificial channel for twenty
years for purposes of navigation, they acquire a right to the
same by the way of dedication.*
21. In one respect, a public company, incorporated with
authority to erect a dam across a public stream, would not
1 Pearsall v. Post, 20 Wend. Ill ; 22 Wend. 425, See Cortelyou v. Van
Brundt, 2 Johns. 3.57.
^ Biddle v. Ash, 2 Ashm. 211. 220.
3 Dwinel v. Barnard, 28 j\Ic. 554, 562 ; Dwinel v. Veazie, 44 Me. 167.
* Delaney v. Boston, 2 Harringt. 489.
488 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
have, in respect to such dam, as broad rights as a riparian
proprietor who should have erected the same dam for his
own purposes. In the latter case, if in the ordinary
[*407] state *of the stream, the water raised by the dam
did not set back on to the proprietor's land above,
the dam-owner would not be responsible if, at times, the
swell in the stream overflowed the same ; whereas, if it were
done by a dam erected by such company, they would be re-
sponsible for the damages thereby occasioned.^
SECTION X.
OF RIGHTS IN WATER BY CUSTOM.
1. Custom as distinguished from dedication.
2. Does not extend to taking the profits of land.
3. What may be acquired by custom.
4. One may claim a right by custom, another by prescription.
5. Easement of bathing in another's stream.
6. How such easement or custom may be defeated.
1. What has been said of the distinction there is between
a dedication and prescription leads to a consideration of
those easements which belong to the inhabitants of certain
localities, as distinguished from a dedication, in the proper
sense of the term. Such of these easements, however, only
as relate to the use and enjoyment of water will now be
considered. Where easements of this character belong to
such inhabitants, not personally, nor by reason of holding
any particular estate to which the same has attached as a
particular easement, they are said to exist by custom. In
technical accuracy, they are not, indeed, easements, but are
sufficiently like them to be treated of under that general
character.
2. Nothing can be claimed in this right which partakes
of the profits or productions of the land in which it is
1 Monongahela Navigation Co. v. Coon, 6 Penn. St. 379.
Sect. 10.] RIGHTS IN WATER BY CUSTOM. 489
claimed. Thus one may claim a right by custom to take
water from a stream in another's land for culinary
or *domestic purposes. But lie cannot, under such [*408]
custom, claim a right to catch and carry away fish
in the stream.^
3. Mr. Woolrych thus states the law upon this subject :
" Inhabitants or particular persons residing in certain vills
may also have a right to water their cattle in rivers at
spots where they have had an immemorial usage so to do,
and there may be other customs and prescriptions to use
water in various ways." ^
In Race v. Wood, the claim set up, and sustained by the
court, was an immemorial custom in the township of H.
for all the inhabitants for the time being in the said town-
ship to have the liberty and privilege to have and take water
from a certain well or spring of water in a certain close, and
to carry the same to their own houses to be used and con-
sumed therein for domestic purposes. The same would have
been the law had it been a running stream of water. And
a claim of a right to take water docs not come within the
principle of claiming a right to take sand or gravel, grass,
turves, or uny profit a prendre?
Lord Campbell, in giving the opinion in Race v. "Wood,
cites an early analogous case from the Year Book,^ in which
such a right is spoken of as a prescription, though, as he
remarks, "There is no prescription stated in a que estate.''^
And there are other authorities for holding that " prescrip-
tion applies only to incorporeal hereditaments ; and whether
the right claimed be considered as strictly a custom or pre-
scription the principle is the same. The only material dis-
1 Bland v, Lipscorabe, 4 Ellis & B. 714, note; Griinstead v. Marlowe, 4
T. R. 717 ; ante, chap. 1, sect. 4, pi. 15-19.
'^ Woolr. Waters, 3. See more fully as to custom, ante, chap. 1, sect. 4.
3 Race V. Wood, 4 Ellis & B. 702 ; Weekly v. Wildman, 1 Ld. Eaym. 407 ;
Manning v. Wasdale, 5 Adolph. & E. 758.
* 15 Edw. IV., fol. 29 A, pi. 7.
490 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
tinction between them is, that one is local and the other
personal in its nature." ^
[*409] *4. The purpose of the above citation is rather
to show what a custom is like in its nature, than as
illustrating or limiting the extent of its application. Nor is
there any incompatibility in the same easement being en-
joyed by different individuals in different rights, one claiming
it by custom, another by reason of holding a particular
estate to which it has become attached.^
5. Among the easements in water known to the common
law, which may be mentioned, is that of bathing in ponds or
streams in another's land. Such an easement may be ac-
quired by prescription or exist by custom. But the right
does not, as a natural one, belong to the public, even to
bathe in the sea, if to do so the persons using it must pass
over the land of another. The latter question was very
elaborately considered in Blundell v. Catterall,^ where the
language of Bracton, borrowed from Justinian, favoring
such a claim as of right, is criticised and restricted as being
at variance with the principles of the common law. And if
it is a right which may not be exercised by passing over the
land of another bordering upon the sea, much less may it be
done in streams whose banks and beds are private property.*
6. But such an easement or custom would be subject to
be discontinued or destroyed by the erection of dwelling-
houses in the vicinity of such bathing place, which should
render it indecent to bathe there in public.^
1 Cortelyou v. Van Brundt, 2 Johns. 357; Pearsall v. Post, 20 Wend. Ill,
119.
2 Kent V. Waite, 10 Pick. 138.
s Blundell v. Cattcrall, 5 Barnew. & Aid. 268 ; Bract, fo. 8.
* Woolr. Waters, 2, 6, 10. See the case of the Westminster boys bathing in
the Thames by immemorial custom at Millbank. 2 Campb, 89.
5 Rex V. Cremden, 2 Campb. 89.
Sect. 11.] RIGHTS OF FISHERY. 491
*SECTION XI. [*410"1
OF RMJHTS OF FISHERY.
• 1. Of rights to fish in the sea and tide-waters.
2. Right of soil carries right to fish in streams not navigable.
3. Easements of right to fish, how gained.^
4. Exclusive right of fishery in tide- waters, how gained.
5. To gain it, the enjoyment must be exclusive.
6. No prescription to fish in the sea by a que estate.
7. How far one may have a several fishery independent of soil.
8. The owner of several fishery ma}' grant it alone.
9. What rights of fishery the owner of the soil may grant.
10. Three classes of fisheries defined.
11. Easements only in such as are subjects of private property.
12. Fisheries regulated by State statutes.
13. Rights to fish subject to public right of passage.
1 Another easement, connected of course with the pres-
ence of water, is that of a right to take fish. To distinguish
between what would be an easement in this respect, and
what a man may enjoy at common law, or as the owner of
the estate within which the right is exercised, it may be
premised that a right to take fish, including shell-fish, in the
sea and the arms and bays thereof, and in rivers where the
tide ebbs and flows, below high-water mark, is common to all
citizens, unless restrained by some act on the part of the
government or State having sovereignty over the same,
though this does not extend to a right to land fish, when
taken or while taking them, upon the soil of a riparian pro-
prietor above high-water mark.^
1 2 Dane, Abr. 689, 690, 693; Mass. Ordinance, 1641 ; Col. Laws, c. 63;
Warren v. Matthews, 1 Salk. 357 ; s. c, 6 Mod. 73 ; Carter v. Muroot, 4 Burr.
2164; Hargr. Law Tracts, 11 ; Word v. Creswcll, Willes, 265; Parker v. Cut-
ler Mill-Dam Co., 20 Me. 353, 357 ; Melvin v. Whiting, 7 Pick. 79 ; Collins
V. Benbury, 5 Ired. 118; Delaware, &c. R. R. v. Stump, 8 Gill & J. 479, 510 ;
Woolr. Waters, 60 ; Coolidge v. Williams, 4 Mass. 140 ; Lay v. King, 5 Day,
72 ; Bickcl v. Polk, 5 Harringt. 325 ; Moulton v. Lihbey, 37 Me. 485 ; Westoa
V. Sampson, 8 Cush. 357, 351. The ordinance of 1641 extends the right of
fishing to " great ponds " of ten acres or more, in the same manner as in bays,
coves,'&c. Colony Laws, c. 63.
492 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
[*411] *2. But at common law a right to take fish be-
longs so essentially to the right of soil in streams
where the tide does not ebb and flow, that, if the riparian
proprietor owns upon both sides the stream, no one but him-
self may come within the limits of his land and take fish
there. And the same rule applies so far as his land extends,
to wit, to the thread of the stream, where he owns upon one
side only. Within these limits, by the common law, his
right of fishery is sole and exclusive.^
3. But not only may this common right in all the citizens
be superseded by an exclusive right in individuals to fish
within certain limits, but the right of fishery incident to the
ownership of the soil of a river may be granted to another
by the owner thereof, while retaining the soil and freehold
of the premises, either to be enjoyed in common with him-
self, or to be exclusively enjoyed by such grantee as a sep-
arate incorporeal hereditament. And it is but repeating a
familiar principle, that such rights may be acquired by pre-
scriptive user and enjoyment to the same extent as by grant.
It will be understood, unless otherwise explained, that the
rights here spoken of are such as exist at common law, in-
dependent of any local laws or usages of the several states in
this country .2
Thus, in speaking of the owner of the land upon both sides
of a stream having a presumptive right of fishing therein,
Lord Hale remarks : " But special usage may alter that
common presumption, for one man may have the river, and
others the soil adjacent, or one man may have the river and
soil thereof, and another the free or several fishing in that
river
" 3
1 Case of Baune Fishery, Davies, 152, 155; Hargr. Law Tracts, 5; Bract,
fol. 207 ; Woolr. Waters, 87 ; Chalker v. Dickinson, 1 Conn. 382 ; Waters
V. Lilley, 4 Pick. 145 ; Ingram v. Threadgill, 3 Dev. 59 ; Commonwealth v.
Chapin, 5 Pick. 199; Hooker v. Cummings, 20 Johns. 90; MTarlin v. Essex
Co., 10 Cush. 304 ; 2 Foiirnel, Traite du Voisinage, ^ 212.
'^ Woolr. Waters, 89 ; per Yales, J., Carter v. Murcot, 4 Burr. 2165.
* Hargr. Law Tracts, 5.
Sect. 11.] RIGHTS OF FISHERY. 493
*4. So, in speaking of the rights of all citizens to [*412]
fish in the sea and creeks and arms thereof, " as a
public common of piscary," he says that they " may not,
without injury to their right, be restrained of it, unless in
such places, creeks, or navigable rivers, where either the
king or some particular subject hath gained a propriety, ex-
clusive of that common liberty." ^
He then states how an individual may acquire the right
to fish in a creek or navigable river to the exclusion of the
public : 1st, by the king's grant ; and 2d, by custom or pre-
scription. " And I think it very clear that the subject may,
by custom and usage or prescription, have the true propriety
and interest of many of these several maritime interests.
.... A subject may, by prescription, have the interest of
fishing in the arm of the sea, in a creek or port of the sea,
or in a certain precinct or extent, lying within the sea, and
these not only/ree fishing, but several fishing." The mean-
ing of which terms will be more fully exjilained.^
5. But there must be something more than a mere enjoy-
ment by the person claiming such exclusive right of fishing
in order to acquire it ; for he has the right originally, in
common with all the citizens, and the exercising of such a
right by one is in no sense adverse to, or exclusive of, that
of another, whenever he shall see fit to exercise it. Thus in
the case of Carter v. Murcot, cited above. Lord Mansfield
says, when speaking of an exclusive right to fish in a navi-
gable river : " If he can show a right by prescription, he may
then exercise an exclusive right, though the presumption is
against him, unless he can prove such a prescriptive right." ^
This matter is treated of by the court of Connect-
icut in *Chalker v. Dickinson, where the plaintiff [*413]
claimed an exclusive right to fish in a part of Con-
1 Hargr. Law Tracts, 11.
2 Woolr. Waters, 60 ; 2 Dane, Abr. 690 ; Mayor of Orford v. Richardson, 4
T. R. 437, 439 ; Carter v. Murcot, 4 Burr, 2164 ; Day v. Day, 4 Md. 262, 270 ;
Gould V. James, 6 Cow. 369, 376.
8 See Anon, 1 Mod. 104, per Lord Hale.
494 THE LAW OF EASEMENTS AND SERVITUDES. , [Cn. Ill,
necticut River in which the tide ebbed and flowed. ]jy the
common law no right could be acquired by use, possession,
and occupation, unless it had been from time immemorial,
and this is called a right by prescription. " The general
rule is, that certain rights may be acquired against individ-
uals by fifteen years' uninterrupted possession and use, un-
answered and unexplained But the case under con-
sideration is of a very different description. The fishery in
Connecticut River, below high-water mark, is common to all
the citizens. The use and possession of the plaintiffs was
lawful, and the mere lawful exercise of a common right for
fifteen years, has never been considered as conferring an ex-
clusive right. This case, therefore, does not compare with
the cases where a right is acquired by uninterrupted use and
possession. Further, it does not appear that the plaintiffs
were the sole possessors and occupiers of this fishery
The public may grant an exclusive right of fishery in a navi-
gable river, and if it may be granted, it may be prescribed
for. Such a right shall never be presumed, but the con-
trary. It is, however, capable of being proved." ^
So in Delaware, &q. Railroad v. Stump, the court of Mary-
land, while they recognize the right of one citizen to an
exclusive fishery in a public, navigable river, acquired by
long enjoyment, insist that it is not the mere enjoyment,
but the enjoyment by such claimant must be to the exclu-
sion of all others, — "long exclusive possession and use," to
give the right.^
It is necessary that it should appear that all other persons
have been kept out, by the claimant and his grantors,
[*414] from *fishing in any manner in the waters to which
he lays claim.^
6. But a prescription of a right to fish in the sea gener-
1 Chalkcr y. Dickinson, 1 Conu. 382-384; Collins u. Beubury, 5 Ircd. 118,
124 ; Gould u. James, 6 Cow. 369, 376.
^ Dclawere, &c. R. R. v. Stump, 8 Gill & J. 479, 510.
" Collins V. Benbury, 5 Ired. 118, 124; 2 Sharsvv. Blackst. Comm. 40; 3
Kent, Comm. 418.
Sect. 11.] RIGHTS OF FISHERY. 495
ally, by reason of owning a certain estate, would be idle, as
it is a right which belongs to all citizens, whether owning
lands or not.^
A right to a several or exclusive fishery in a part of the
sea or a navigable river will be regarded as an incorporeal
hereditament, unless, as may often be the case, there may
be an ownership in the soil over which it is claimed, pre-
sumed in favor of the claimant of the fishery.'-^
7. And the court of North Carolina, in citing the case of
Somerset v. Foggwell, add : " But the right of several fish-
ery not derived by special grant from the crown, as aboye,
or by prescription, which supposes a grant, cannot exist inde-
pendently of the right of soil." ^
The same doctrine is advanced by Blackstone.^ But Har-
grave ^ controverts the doctrine, and says : " Nor do we
understand why a several piscary should not exist without
the soil as well as a several pasture " ; while the point is left
unsettled in Seymour v. Courtenay.'^
And in one of Hargrave's notes it is said : " The truth is,
that the authorities on this subject are very numerous, and
seem contradictory," " the question being whether a several
fishery and the soil may be in different persons.
Woolrych, in the page of his work just cited, says : " In-
deed, so far from a several fishery being necessarily
incident *to the soil, it should seem that in strictness *[415]
it must be separated therefrom."
The doctrine maintained by Ilargrave and Coke, that it is
not necessary that the owner of a several fishery should have
a property in the soil, is sustained in Melviii v. Whiting.^
1 Ward V. Cresswell, Willes, 26.i.
- Somerset v. Foggwell, 5 Barnew. & C. 875.
3 Collins V. Benbury, 5 Ired. 118, 126.
* 2 Blackst. Comm. 39.
s Co. Lilt. 122, note, 181.
^ Seymour v. Courtenay, ^ Burr, 2814. See Smith v. Kemp, 2 Salk. 637 and
■ note.
f Co. Litt. 4 b, note 20. See Woolr. Waters, 89.
8 Melvin v. Whiting, 7 Pick. 80, 81 ; s. c, 13 Tick. 184.
496 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. Ill
But the question is again opened in M'Farlin v. Essex Co.,
by Shaw, C. J., who does not consider it settled in the case
of Melvin v. Whiting, as he regards the claim set up tliere
by the owner of the several fishery to have been connected
with a particular estate upon the bank of the stream.^
And in the last-cited case, the point was not taken in the
hearing, but the Chief Justice says : " Whether a party can
prescribe for a several fishery in the estate of another, with-
out alleging some estate of freehold, is an important question
which was not discussed in the present case. As a general
rule, a party cannot allege a custom to claim an interest or
profit a prendre in the estate of another without a prescrip-
tion in a que estate And yet we believe it has some-
times been said that a piscary is a freehold in itself, in which
there is no occasion to show to what freehold it is appendant." ^
This discussion, it will be perceived, has taken rather a
wide range, and is somewhat in anticipation of the doctrines
contained in some of the authorities that follow, where the
distinction between the case of a piscary and ordinary pre-
scription of profit a prendre^ above alluded to, seems to be
sustained.
8. The right to take fish within the limits of one's land
bounding upon and including a stream not navigable, is
considered so far a subject of distinct property or ownership,
that it may be granted, and will pass by a general
[*416] grant of *the land itself, unless expressly reserved ;
or, as seems to be settled by the weight of authority,
it may be granted as a separate and distinct property from
the freehold of the land, or the land may be granted while
the grantor reserves the fishery to himself. Whether the
grant or reservation shall have one effect or another de-
pends, of course, upon the terms in which it is expressed.
Thus it has been held : " If one grants to another aquam
suam, the piscary in it shall pass by the grant, because it is
1 M'Farlin v. Essex Co., 10 Cush. 311.
2 Ibid. 310, in which he refers to Davies, 155.
Sect. 11.] EIGHTS OF FISHERY. 497
included in the word aqua. And so by the grant of a pis-
cary the soil sliall pass," though Comyn says, " By the grant
of a piscary the soil or water does not pass." ^
Or, as stated by Coke, in which he is sustained by the
court of New York, " If a man grant a(/iiam suam, the soil
shall not pass, but the piscary within the water passcth there-
with." 2
And though the doctrine has been questioned. Lord Coke
maintains that, " If a man be seized of a river, and by deed
do grant separalem piscariam in the same, and maketli
livery of seizin secundum formam chartce, the soile doth not
pass, nor tlie water, for the grantor may take water there,
and if the river become drie, he may take the benefit of the
soile, for there passed to the grantee but a particular right,
and the livery being made secundum formam chartce, cannot
enlarge the grant." ^
9. Woolrych, adopting the language of another writer upon
aquatic rights, Mr. Shultes says : " That property in private
rivers may be subjected to every kiiid of restriction by con-
vention and agreement ; a man may grant the soil
for *the purpose of erecting a weir or mill, and re- [*417]
serve the right to fish or take water. He might
yield his own prerogative of fishing, on the other hand, and
so confer upon his grantee an exclusive or several fishing,
without the ownership of the soil, or he might grant a
license to other persons to fish in common with himself."
And he himself concludes : " The owner of a territorial fish-
ery, so to speak, may either make a grant and thereby ex-
clude himself, or he may permit another to enjoy a co-
1 Trockmorton v. Tracy, Plowd. 154; Case of Baune Fishery, Davies, 150;
Com. Dig. Grant, E. 5.
2 Co. Litt. 4 b; Jackson v. Haistead, 5 Cow. 219; Com. Dig. Grant, E. 5;
Somerset v. Fogwell, 5 Barncw. & C. 875.
3 Co. Litt. 4 b; Ibid. 122; Hargr. note, 20. See Somerset v. Fogwell, 5
Barnew. & C. 875. See Smith v. Kemp, per Ilolt, J., Salk. G.'i7 ; Seymour v.
Courtenay, 5 Burr. 2816 ; Woolr. Waters, 89; Melvin v. Whiting, 7 Pick. 81 ;
s. c, 13 Pick. 184.
32
498 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. III.
extensive or limited right of fishing in his own water, still
reserving his ownership." ^
In the case of Cortelyou v. Van Brundt, Thompson, J.
says : " A right to fish in any water gives no power of the
land." ^ He refers to Ipswich v. Browne, where the court
say, " If one have a piscary in any water, he has no power
over the land without the assent of the tenants of the free-
hold.3
10. But it is not the purpose of this work to treat of the
law of fisheries in all its bearings, and it has been rather
with a view of ascertaining under what circumstances a
right to take fish in another's premises may be the subject
of a grant or prescription, and so come within the category
of easements, than to discuss the effect of certain forms of
grants relating to the same. To do this, a brief reference
must be had to the classification of fisheries and the terms
by which they are distinguished. But here, again, it would
be impossible to reconcile the use of these terms, as applied
by different courts and writers, especially those of an earlier
day. It is believed that it will be sufficiently accurate to say
that there are three classes of fisheries, viz. several, free,
and common. The first is such as a man has in his own
land, where the ownership of the soil and freehold is separate
and distinct in himself. The second is a right derived by
grant from one having a several fishery in connec-
[*418] tion *with his estate in the land, to be enjoyed not
separately and alone, but in conjunction with the
grantor himself. It is in some measure like a fishery in
common, since it may be to be shared with others deriving
their titles thereto, by grant originally derived from the land-
owner. The third is the right which all citizens have to
fish in the sea and navigable waters, and is derived by no
grant and belongs to no particular estate. It would, more-
1 Woolr. Waters, p. 89.
- Cortelyou v. Van JJrundt, 2 Johns. 357, 362.
'^ Ipswich V. Browne, Sav. 14.
Sect. 11.] RIGHTS OF FISHERY. 499
over, seem, from what has gone before, tliat though a several
fishery was originally based upon tlie ownership of land, it
may be separated therefrom by grant or reservation, and
forever after be held and pass independent of the ownership
of the land. So a free fishery, though derived from the
ownership of the land, may be enjoyed independent of such
ownership. Thus Lord Mansfield says : " We agree in the
position that, in order to constitute a several fishery, it is
requisite that the party claiming it should so far have the
right of fishing, independent of all others, as that no person
shall have a coextensive right with him in the subject
claimed ; for where any person has any such coextensive
right, there it is only a/ree fishery." ^
Lord Coke says : "A man may prescribe to have separalem
piscariam in such a water, and the owner of the soil shall
not fish there. But if he claim to have communiam pis-
chari(B or liberam pischariam, the owner of the soil shall fish
there." 2
And the court in Melvin v. Whiting hold that the views of
Lord Coke are law here, and that a free fishery is not a
several or exclusive one.^
It is moreover said, in a subsequent report of the same
case, that a free fishery and a several, exclusive fishery are
in some sense inconsistent as titles in a claim of right to
exercise the act of fishing in the soil of another,
although *there is nothing in the way of the same [*419]
person setting up and relying upon both or either at
his election. In that case it was held that one might pre-
scribe for a several or exclusive fishery on the soil of another,
situate upon the Merrimac River, above tide-water, by show-
ing an adverse, uninterrupted, and exclusive use and enjoy-
ment of the right and privilege claimed, for more than
twenty years, and an action on the case was sustained against
the owner of the soil for interrupting such fishery.*
1 Seymour v. Coiirtenay, 5 Burr. 2817. - Co. Litt. 122 a.
3 Melvin v. "Whiting, 7 Pick. 80, 81.
* Melvin v. Whiting, 13 Pick. 184. But see M'Farlin v. Essex Co., 10 Cush.
304, for comments upon the case.
500 THE LAW OF EASExMENTS AND SERVITUDES. [Cii. III.
The doctrine of Coke, above cited, is sustained by the
court in Pennsylvania, in Carson v. Blazer. A man may
prescribe to have separalem piscarlam in such a water,
and the owner of the soil shall not fish there
The right of piscary must be a right appurtenant to the
soil covered with water. It must be a part of the fee-sim-
ple of that soil, and must be supposed to have been origi-
nally granted out of it by him who had the fee-simple.
.... In order to have an exclusive fishery in a river, all
that was necessary was that the party seized of the river
should by his deed grant separalem piscariam in it." ^
Woolrych^ examines at length the different senses in
which courts have used the term " free fishery," and con-
cludes " that to consider the free fishery as the same with
common of fishery will be a reasonable as well as a legal
conclusion." But he admits that " there is no modern de-
cision which can warrant us in uniting them." And it will
be sufficiently accurate for the purposes of this work to
treat a common fishery as one open to all the citizens, as
in the sea, though a free fishery, originally derived from a
private grant, may be shared in by many persons, who, as
to that particular fishery, may be said to have a common
fishery.
[*420] *11. But whether called several, free, or common,
it is only of fisheries which may be the subject of
private property that easements can be predicated, and to
such only it is intended to refer.
If the right is a part of and incident to the ownership of
the soil, it cannot be regarded as an easement in such soil.
But if the riglit in an individual in severalty, or to be shared
with others, be to take fish within another's freehold, it is
an easement, and may be acquired by grant from the owner
thereof, or by such a user as is evidence of such a grant
1 Carson v. Blazer, 2 Binn. 47.5, 480.
'^ Woolr. Waters, 97, 101 ; per Burrowjh and Dallas, JJ., in Bennett v.
Costar, 8 Taunt. 183.
Sect. 11.] RIGHTS OF FISHERY. 501
under tlic name of a prescription, and it may he to the en-
tire exclusion of the owner of the soil from all right to share
in the fishery. But it must he shown to have heen an ac-
tual and exclusive possession of the fishery, adverse to the
right of the riparian proprietor, uninterrupted and contin-
ued at least twenty years .^
And where one has a several fishery, he has a property in
the fish, and may maintain trespass for taking them.^
12. It will be observed that the rights of fishery thus far
discussed have been such as are recognized by the common
law. But these are in many cases modified by local stat-
utes. Thus in several of the States many rivers, in respect
to their fisheries, are regarded as navigable streams, and the
fisheries therein are common, though there be no ebb or
flow of tide therein. Such is the case with the Susquehanna
in Pennsylvania,^ and the other large rivers in the State,*
and the owners of the banks have not an exclusive right to
fish in the stream opposite to the same.
The same doctrine prevails in North Carolina as to rivers
declared navigable by act of the legislature. But in
those * parts of the same rivers which are above the [*421]
point of their being actually navigable, as well as in
streams not navigable, the doctrine of the common law as to
fisheries prevails.^
So also is the law in South Carolina in respect to rivers
actually navigable, though not declared so by statute.^ »
So in Massachusetts and Maine, the legislature has the
power to regulate the fisheries, and, in numerous cases, has
exerted the power within streams which by the common law
would be private property."
1 Melvin v. Whiting, 13 Pick. 184; M'Farlin v. Essex Co., 10 Cush. 304 ;
Woolr. Waters, 10.5.
- Collins r. Benbury, .5 Ired. 118; Smith v. Kemp, 2 Salk. 637; Holford v.
Bailey, 13 Q. B., Am. ed., 42G and n.
3 Carson v. Blazer, 2 Binn. 475. * 2 Sharsw. Blackst. Comm. 40, note.
5 Collins V. Benbury, 5 Ired. 118; Ingram ;;. Threadgill, 3 Dev. 59.
^ Cates V. Wadlington, 1 M'Cord, 580; 3 Kent Comm. 418.
7 Peables v. Hannaford, 18 Me. 106 ; Parker v. Cutler Mill-Dam Co., 20 Me.
502 THE LAW OF EASEMENTS AND SERVITUDES. [Ca. III.
13. But ill those States where the common law prevail?,
the right of several fishery in the lands of proprietors bor-
dering upon streams of water in which the tide does not ebb
or flow, is not affected by the circumstance that the stream is
a public one by being of sufficient capacity to float vessels,
boats, rafts, and the like. But the right to fish upon one's
own land, or in a several fishery, in such cases, must be
enjoyed, if at all, in subordination to the public use of the
river for passage. The public right of passage is prior and
paramount.^
[*422] ^SECTION XII.
OF SERVITUDES OF WATER BY THE CIVIL LAW, ETC.
1. AfRrmsitive and negative servitudes of vrater.
2. Servitudes of water by the Civil Law.
3. Wliat servitudes of water real and what personal.
4. Rights of drain and of drawing water affirmative servitudes.
5. Servitudes did not depend on being necessary.
6. W^hy no servitudes in the Civil Law as to mills.
7. Rivers and their banks highways by the Civil Law.
8. Law of Scotland as to servitudes of water.
9. Code Napoleon as to servitudes of water.
10. Servitudes under Code of Louisiana.
11. Owner of servitude has the right and duty to repair.
12. Code of Louisiana as to use of river banks.
13. Provisions of the Partidas as to use of river banks.
14. General agreement as to servitudes between common and civil law.
15. Peck V. Bailey. Judgment of Hawaii.
1. Although these, as well as other servitudes known to
the civil law, have already been spoken of to a greater or
less extent, it seemed to be desirable to refer to them col-
lectively in a brief and summary manner, that the analogy
353; Commonwealth v. Cliapin, 5 Pick. 199, 203; Vinton w. Welsh, 9 Tick.
87 ; 2 Dane, Abr. 095 ; Moulton v. Libbcy, 37 Me. 472, 494.
1 Hooker v. Cumininj^s, 20 Johns. 90, 99; Adams v. Pease, 2 Conn. 481 ; 3
Kent, Comm. 418 ; Jackson v. Keeling, 1 Jones (Law), 299 ; Moulton v. Libbcy
37 Me. 472, 493.
Sect. 12.] SERVITUDES OF WATER BY THE CIVIL LAW, ETC. 503
wliicli exists in this respect between the civil law and the
modern systems now in vise may be more readily perceived.
And among these may be mentioned the Scotch and the
French systems, as well as the laws of Louisiana, and so
much of the Spanish Partidas as still prevail in Louisiana,
for which the English reader is indebted to Messieurs Lislet
and Carleton, whose translation of these was published in
1820.
The number and variety of servitudes known to the civil
law seem to have been almost unlimited, and in numerous
cases where one estate had a servitude in or upon another,
the latter might have had a counter servitude in or upon the
former. As, for instance, the servitude of slillicidium or
Jiumen, heretofore described, consisted in the right that the
owner of a house had to discharge the water that fell in
rain upon its roof upon the land of an adjacent
*proprietor. But the land-owner might have ac- [*423]
quired, as an easement in favor of his land, and the
owner of the house should not thus discharge the water from
his roof, jus stillicidii vel fluminis non recipiendi. Or he
might gain as an easement the right to insist that the water
from the roof should be discharged upon his land, or into
his cistern, jus stillicidii vel Jluminis non avertendi}
2. Among the servitudes relating to the use or manage-
ment of water known to the civil law was that of cloaca
mittendcB, which was urban in its character, and consisted
in the right of maintaining and using a sewer through
the house or over the ground of an adjacent owner. A
servitude answering to this among those known as rural,
was that of aqucs ducendcc, or right of leading or conducting
water through another's land by a pipe or rivulet for the use
of the premises of the owner of such servitude. It might
apply whether the stream of water was conducted above or
below the surface of the earth. It might, moreover, extend
1 Ante, sect. 8 ; o Toullier, Droit Civil Fran^ais, 397 ; 2 Fournel, Traite du
Voisinage, 114 ; D. 8, 2, 2 ; Inst. 2, 3, 1.
504 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
through the wliole year, or be limited to certain seasons.
Nor might the owner of the servitude change the place of
direction of the course of the water when once fixed. Where
the supply of water was sufficient, others might share in it
with the first owner of the servitude. But a second grant
could not be made of a right to draw water which should
derogate from the right first granted. Under the servitude
aqua hauriendce, one might draw water for his own use from
a spring or well or brook, in another's land, which implied a
right of way to and from the place of supply as a means of
access to the same. By another servitude, the owner of one
estate might drive his cattle to water, over the neighboring
estate, to a spring or other source of supply within the same.
There was another servitude aqucB ducenda, whereby
[*424] one might lead *or conduct off from his land the
water thereon through the estate of another. ^
3, If the person having a right to draw water within
another's premises had no land in the neighborhood in
connection with the ownership whereof he exercised such
right, it was considered a personal one, which died with
the person. But all these servitudes took the character
of real services, where they were possessed in virtue of the
occupancy of some other estate for the use and advantage
whereof the same were enjoyed. The limit and extent of
these several easements were defined by the grant or pre-
scription under which they were claimed, and the owner
thereof might not exceed this limit. If, for instance, one
having a right to water a certain number of cattle under-
took to supply a larger number, the owner of the servient
estate might hinder the owner of the servitude from using it
beyond the prescribed number .^
4. A servitude of drawing water to, or of drain or gutter
1 Ayliffe, Pandects, 307, 308 ; Kauff. Mackcldcy, §§ 309, 312, 31.5 ; 1 Domat,
Lib. 1, Tit. 12, ^ 1, Art. 7 ; ^ 2, Art. 1, 2, 3 ; § 3, Art. 1, 3, 4, 5, 6 ; D. 8, 1, 7 ;
Ibid. 43, 20, 1, 3; Wood's Inst. Civ. Law, 90-93; Vinnius, Lib. 2, Tit. 3,
§ i ; Ibid. Tit. 3, §^ 4, .5. Sec Lalaure des Servitudes, 30.
2 Ayliffe, Pandects, 308.
Sect. 12.] SERVITUDES OF WATER BY THE CIVIL LAW, ETC. 505
from, one's premises, through those of anotlier, was an alTirm-
ative one.i
5. These servitudes did not depend for their existence
upon any supposed necessity of enjoyment, and when once
acquired they continued, though the owner of the dominant
estate might, for instance, have water enough upon liis own
premises without drawing any from those of his neighbor.'-^
6. One might naturally be surprised to see so little, or
rather nothing, said of the use of water for mills in the Ro-
man law. And the same may be said of hydraulic
*works generally, but this is explained by the fact [*425]
stated by M. Fournel, that water-mills were not in
use among the Romans until after Justinian, their mills be-
fore that time having been moved by animal power.^
7. By the civil law, not only were navigable rivers high-
ways, but the traveller upon the same might use the banks
thereof as a tow-path, provided such use did not interfere
with trees growing thereon belonging to the land-owner, or
other obstacles lawfully upon the bank.*
8. By the law of Scotland, on some of the foregoing sub-
jects, as stated by Erskine, in his Institutes of the Law of
Scotland, the servitude of aqueduct is the right that one has
of carrying water in conduits or canals along the surface of
the servient tenement, for the use of one's own property, and
such servitude may be acquired by immemorial possession.
Much like to this is the servitude of a dam-head, by which
one acquires a right of gathering water on his neighbor's
grounds, and of building banks or dikes for containing that
water. These servitudes are generally constituted for the
use of water-mills or engines, and the owner of the dominant
tenement, as he has the benefit of the servitude, is obliged to
1 Ibid. 310 ; Wood, Inst. Civ. Law, 92.
2 1 Domat. Lib. 1, Tit. 12, § 1, Art. 17.
^ " Les lois romains ne contienent ancune disposition sur ies moulines a eau et
a vent, parceque cette construction etoit inconnue aux Romains a I'epoque de
la redaction du corps de droit civil." 2 Fouruel, Traite du Voisiuage, 222.
* 2 Domat, Lib. 1, Tit. 8, § 2, Art. 9.
506 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
preserve the aqueducts and dam-heads in such condition
that the adjacent grounds may suffer no prejudice by the
breaking out of the water. Aquahaustus is a right of the
land-holder to water his cattle at the river, brook, well,
or pond that runs through or stands upon his neighbor's
grounds. 1
9. By the Code Napoleon, low lands are subjected to those
more elevated, to receive the waters naturally running from
them without the hand of man contributing thereto. The
owner of the low land cannot erect a bank to pre-
[*426] vent this. *The owner of the high land can do
nothing to aggravate the servitude of the low land.
He who has a spring on his land may use it according to his
pleasure, saving the right which the owner of the low land
may have acquired by title or by prescription. He whose
property abuts upon a running water may cut a way for it
for the irrigation of his property. He through wlwse estate
such water runs may even make use of it for the space it so
runs, but at the charge of restoring it, where it leaves the
property, to its ordinary course.^
10. The Civil Code of Louisiana recognizes the servitudes
of drawing water from the well of another, of conducting
water, or aqueduct, and of watering cattle, substantially like
those of the civil law, and includes those of aqueduct and
drain as among contUiuous^ and that of drawing water among
the discontinuous, servitudes. ^
11. And the principle of the common law is here declared
by the terms of the code, that he to whom a servitude is due
has a right to make all the works necessary to use and pre-
serve the same. Su.ch works are at his expense, and not at
the expense of the owner of the estate which owes the servi-
tude, unless the title by which it is established shows the
1 Fol. cd. B. 2, i) 1.3, p. 3.58.
'^ Cod Nap., Barrett's ed., Arts. 640, 641, 64.3, 644 ; 1 Le Tagc Dcsgodets, 211.
3 La Civ. Cod., Arts. 716, 717, 719, 720, 721, 723; Poldcn v. Bastard, 4 B. &
Smith, 258, 264.
Sect. 12.] SERVITUDES OF WATER BY THE CIVIL LAW, ETC. 507
contrary. And lie may enter iif^on the servient estate so far
as it is necessary to accomplish this purpose.^
12. In respect to the use of navigable rivers and their
banks, they are declared public so far, that every one may
bring his vessel to land there, may make the same fast to
trees planted there, to unload his vessels, to deposit his goods,
or dry his nets, and the like. At the same time, the prop-
erty in the soil of the banks is declared to be in such as pos-
sess the adjacent lands. A bank of a river is de-
*fined to be " that which contains the water in its [*427]
utmost height." 2
13. The banks of public rivers are declared public by the
civil law.3 And by the provisions of the Partidas, recognized
within the former Territory of Louisiana, this right is de-
clared to be that " every man may make use of them to
fasten his vessel to trees that grow there, or to refit his
vessel, or to put his sails or merchandise there. So fisher-
men may put and expose their fish for sale there, and dry
their nets, or make use of the banks for all other like pur-
poses which appertain to the art or trade by which they
live." * In this respect the rule of the common law differs
from the civil law, as has been before shown ; ^ and the courts
of Missouri have been disposed to limit the language of the
Partidas to cases of reasonable necessity.^
To pursue the subject of servitudes of water into detail,
either under the civil or the French laws, would be opening
many topics which either have not yet been adjudicated at
common law, or upon which the rule of the common law
would be found variant from that of one or both these codes,
and would lead to a wider discussion than the plan or the
utility of this work would warrant. But whoever may wish
to pursue the inquiry will readily find the works cited below,
1 La. Civ. Code, Arts. 768, 769, 770.
- Ibid., Art. 446 ; D. 43,12, 3, 1.
3 D. 43, 12, 3.
* Partid. 3, Tit. 28, Law 6. ° Ante, sect. 9, pi. 18.
6 Ante, sect. 9, pi. 13 ; O'Fallon v. Daggett, 4 Mo. 343.
508 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. III.
which are among the treatises which will throw light upon
.the subject of these servitudes.^
14. The following extracts, however, from a writer of
acknowledged authority, will serve to show, after what has
been said of easements at common law, how intimate the
relations are between that and the civil law in their
[*428] *bearing upon this subject. " Servitus, a service, is
a right by which one thing is subject to another
thing or person, contrary to common right Here one is
the ruling estate, the other subject to the rule, either to
suffer something from the other, or not to do a thing without
the leave of the owner of the ruling estate A man's
estate cannot owe service to himself." ^
15. A very recent case has been decided by the Supreme
Court of the Hawaiian Islands, in Equity, by the Hon. Ch. J.
Allen, Chancellor, which is interesting, not only from the
importance of the questions it involved, and the great ability
evinced by the Chancellor in their discussion, but the facil-
ity with which the principles of the common law in which
the Chancellor, born and educated in Massachusetts, was
trained, may be adapted and applied to a country whose
physical condition differs essentially from that in which the
common law originated. In these islands, the agricultural
productions on which the people chiefly subsist, can only be
raised by the artificial application of water, by way of irriga-
tion. This, as it seems, is not done by mere sluices cut in
the natural banks of a stream, by which the water flushes over
on to the adjacent lands, but by lateral artificial trenches by
which the water is taken from its natural bed and diffused
over large tracts on which it is absorbed, so that the lower
proprietor is materially affected by the manner and to the
extent in which the upper owner makes use of the water.
As this use is not what would ordinarily- be regarded as a
1 .5 Duninton, Cours du Droit Franrms, 144 - 231 ; Partlessus, Traite des
Servitudes, 96- 174 ; Merlin, Repertoire de Jurisprudence, Tit. Cours d'Euu.
2 Wood's Inst. Civ. Law, 90.
Sect. 12.] SERVITUDES OF WATER BY THE CIVIL LAW, ETC. 509
natural incident to the land bordering upon a watercourse,
it becomes a matter of easement or servitude if continued
long eaiougli, and under proper circumstances to create a
prescriptive right. Such, in brief", was tlie case referred to,
and the questions involved were : 1st. If the upper owner
had diverted more water than he had a prescriptive right to
do, to the injury of the lower owner's mill and crop which
he was cultivating ? 2d. Whether, as he had acquired a
prescriptive right to divert the water for the ])roduction of
a certain crop (kalo) upon certain lands, he had a right to
use it upon other lands in growing a crop of cane ? 3d.
Whether, as in the use of the water upon the kalo land, a
portion of it reached the plaintiff's land, whereby it was
benefited, and this had been continued from time immemo-
rial, the defendant had a right to cease using it upon his
kalo land and to use it on his cane land, and thereby de-
prive the plaintiff of the enjoyment of the water from the
kalo land ? And 4th. What rule should be applied as to
the extent of enjoyment of the parties, if at any time there
should be deficiency of water by reason of an extraordinary
drought ? Upon these points the Chancellor held that the
rights of the parties as to tlie extent to which eitlier could
apply the waters of the streams running tlirough their lands,
must be measured by the prescriptive rights of user acquired
by each ; that the riglit attached to the estates owned by
them, and had reference to the quantity to be used and not
the particular mode in which it should be applied, and that
it was indifferent whether it was used in growing kalo or
cane ; that inasmuch as the use of the water upon his kalo
land was artificial and for his own benefit, the owner was
not bound to continue it, although its discontinuance worked
an injury to the adjacent owner ; and that tlie use of the
water of the stream was so far the common property of both,
that if, from extraordinary causes, there was a deficit in tlie
quantity necessary to supply the wants of both, the loss
should be borne pro rata, by the estates of the parties in
510 THE LAW OF EASEMENTS AND SERVITUDES. [Cir. III.
interest. All these points are fully considered in the light
of authorities drawn from English and American decisions
and elementary treatises. And the case itself and its de-
cision furnish palpable and gratifying evidence of the change
which has come over the social and political condition of a
people who, within the memory of living witnesses, have
emerged from barbarism and idolatry, and are now enjoying
the gladsome light of jurisprudence in its dispensation by a
learned and able judiciary and an educated bar.i
1 Peck V. Bailey, Pacific Com. Advertis., Feb. 9, 1867.
=^CHAPTER IV. [*429]
OF EASEMENTS AND SERVITUDES OTHER THAN OF
WAY AND WATER.
Sect. 1. Easement of Lateral Support of Land.
Sect. 2. Of Easement of Support of Houses.
Sect. 3. Easement of Party Walls.
Sect. 4. Easement of Support of subjacent Land.
Sect. 5. Easement of Support of Parts of the same House.
Sect. 6. Easements and Servitudes of Light and Air, &c.
Sect. 7. Miscellaneous Easements and Servitudes.
SECTION I.
EASEMENT OF LATERAL SUPPORT OF LAND.
1. How far lateral support a right incident to property.
2. Rule of Civil Law, &c. as to rights of adjacent lands.
3. How near one may dig to the line of another's land.
4. Thurston v. Hancock. Removing support of adjacent house.
5. Farrand v. Itlarshall. Digging clay and causing land to fall.
6. Rule. One may not dig so as to cause adjacent land to fall.
7. Lasala v. Holbrook. Impairing support of a house.
8. One may not carelessly injure the support of another's hoxxse.
9. One may not dig in another's land to the injury of a third party.
10. Radchffe v. Mayor, &c. How far one may dig his own soil.
11. Effect of having a house in preventing another's digging.
12. No prescriptive right as to an insufficient foundation.
13. How what is carelessness in digging is tested.
14. Support for houses gained by prescription and implied gi-ant.
15. Foley v. Wyeth. Care to be used in digging as to houses.
16. Right to dig limited by its not injuring the natural soil.
17. IS. How far knowledge of facts afiects the degree of care to be used.
1. Among the rights which adjacent proprietors of lands
may have to enjoy the benefit of their contiguity, is that of
512 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. IV.
[*430] *having one parcel laterally supported l)y the other.
It is a right incident to the ownership of the respective
lands, rather than an easement which one has in the other.
It does not result from the idea of an adverse enjoyment, nor
is it derived from any grant, as something superadded to the*
dominion which the owner of the fee has as such, over the soil
of the particular close that is supposed to be Ijenefited by it.
So far as it partakes of the character of an easement it is that
of a natural easement, like the right of a riparian proprietor
to the flow of a natural stream along its accustomed water-
course.^ A writer in the London Law Magazine and Review,
in treating of this subject, thus states the law : " But the
right being a right to support from land in its natural state
to land in its natural state, on the one hand, it includes only
the right to such support as is furnished by the permanent
conditions of land, not by its accidental circumstances, and,
on the other hand, if the support required is increased, either
by increasing the weight of the supported land, or by di-
minishing its self-supporting power, no right exists to have
this additional support supplied by the neighboring land, and
no subsidence resulting from this cause gives a right of
action." ^ But where the owner of one parcel undertakes to
claim, as a right, this lateral support of an adjacent parcel
to sustain an additional burden thereon, as a dwelling-house,
an artificial embankment, and the like, it becomes a servi-
tude so far as the adjacent parcel is concerned, and an
easement in favor of the parcel sharing the benefit of such
support.^
1 M'Guirc V. Grant, 1 Dutch. 356, 368; Humphries v. Brogden, 12 Q. B.
739; Lasala v. Ilolbrook, 4 Paige, 169; Farrand v. Marshall 19 Barb. 380;
Hunt I'. Peake, Johns. Ch. (Eng.) 705 ; No. East. E. W. Co. v. Elliot, 1 Johns.
& H. 145; Foley v. Wyeth, 2 Allen, 131 ; Rowbotham v. Wilson, 8 Ellis &
B. 123, 152 ; Solomon v. Vintners' Co., 4 Hurlst. & N. 585 ; Bonomi v. Back-
house, Ellis, B. & E. 622, 642, 644 ; Caledonian E. W. Co. v. Sprot, 2 Macq.
H. of L. Cas. 449 ; Napier v. Bulwinkle, 5 Rich. 311, 323.
^ 20 Law Mag. & R. 82.
=* Humphries v. Brogden, 12 Q. B. 739, 748, 750; Thurston v. Hancock, 12
Mass. 226; Bonomi v. Baekliousc, Ellis, B. & E. 622, 646; Hunt v. Peake,
Sect. 1.] EASEMENT OF LATERAL SUrPORT OF LAND. 513
From the circumstance that there may be in mining re-
gions an upper and a lower freehold, questions of the right
of support of the superior by an inferior stratum of earth or
mineral often arise, and, as a general proposition, the same
. distinction in this respect prevails between the superior tene-
ment in its jiatural condition, and when burdened by build-
ings and other structures, as there is in the case of lateral
sup23ort.^
*2. And although it is proposed to confine these [*431]
inquiries, principally to the common law, it seems
proper to refer briefly to the provisions of the civil law upon
the subject, and the systems which have been borrowed from
it. The rule as laid down in the Digest ^ required, " that,
if a man dig a sepulchre or a ditch, he shall have (between
it and his neighbor's land) a space equal to its depth ; if he
dig a well, he shall have the space of a fathom." ^
By a law of Solon, no one could dig a ditch upon his own
land without allowing as much space between the ditch and
his neighbor's land as the same was deep. No wall could be
placed nearer to a neighbor's land than the distance of one
foot. A house must be two feet distant. Trees might not
be planted nearer the outer line of one's land than nine feet,
and olives ten. The laws of the XII. Tables in Rome were
borrowed from those of Solon. ^
The subject is, in a measure, regulated by the Code Napo-
leon and that of Louisiana,^ and the principles applicable in
cases of making excavations, or erecting structures upon
lands adjoining those of other proprietors, are further ex-
plained by Pardessus.^
3. The test of this right of lateral support is the limit
Johns. Ch. (Eng.) 705, 712 ; Partridge i'. Scott, 3 Mees. & W. 220 ; Rogers v.
Taylor, 2 Hurlst. & N. 828 ; Hide v. Tliornborough, 2 Carr. & K. 250.
1 Post, sect. 4, pi. 3 - 5. 2 £>_ jq^ 1^ 13.
3 9 C. B. 412.
* Barrett's Introd. Code Nap. cxi, cxxxv.
5 La. Civ. Code, Arts. 674, 688-691.
6 Traite des Servitudes, §§ 199-201.
33
514 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV,
which one is bound to observe in excavating his own soil in
the direction of his neighbor's close, for, aside from the in-
jury that may be done by removing thereby the support
which his neighbor may lawfully claim to derive from his
land, there is no limit as to the extent to which such exca-
vation may be carried. The rule to be observed, where the
rights of the parties relate to the soil in its natural state, is
generally stated to be, that neither shall excavate his own
soil so as to cause that of his neighbor to be loosened and
fall into such excavation. This rule, as stated by Rolle in
his Abridgment, is often cited as a sound one, and embraces
the distinction which the law makes between land in a natu-
ral state and the same land burdened with buildings or other
structures, " If A be seized in fee of land next adjoining
the land of B, and A erect a new house on the confines of
his land, next adjoining the land of B, and if B afterwards
digs his land so near the foundation of A's house, but no
part of the land of A, that thereby the foun-
[*432] *dation of the house and the house itself fall into
the pit, yet no action lies by A against B, because
it was A's own fault that he built his house so near to
B's land, for he by his act cannot hinder B from making the
best use of his own land that he can But semble,
that a man who has land next adjoining my land cannot dig
his land so near mine that thereby my land shall go into his
pit ; and therefore if the action had been brought for that,
. it would lie." ^
If any diversity of opinion is found among the judges in
the modern cases, it is believed, it is only as to how far one
is bound to exercise more care in digging in his own land,
in respect to its injury upon that of his neighbor who has
recently erected a house thereon, than if there were no such
structure there.
4, The case of Thurston v. Hancock is a leading one
1 Wilde V. Minsterley, 2 llolle, Abr., Trespass, I. pi. 1 ; Beard v. IMurpliy, 37
Verm. 101.
Sect. 1.] EASEMENT OF LATERAL SUPPORT OF LAND. 515
upon this subject, and often referred to, wherein tlic facts
were as follow. The plaintiff in 1802 purchased a lot of
land upon a hill, and in 1804 built a house thereon, within
two feet of the line of his land. In 1811 the defendant
purchased the adjoining lot, and began to dig down the hill,
and had dug up to within five or six feet of the plaintiff's
land, when the earth gave way, and exposed the foundations
of the plaintiff's house, and he had to take it down. For
this he brought his action, the digging having been done
with full knowledge, on the part of the defendant, that he
was thereby endangering the property of the plaintiff. But
the court held that he was without remedy for the injury to
the house. A man, in digging upon his own land, is to have
regard to the position of his neighbor's land, and the proba-
ble consequences to his neighbor. If he digs too near his
line, and if he disturbs the natural state of the soil, he shall
answer in damages. But he is answerable only for the
natural and necessary consequences of his act, and
not *for the value of a house put upon or near the [*433]
line by his neighbor. For in so placing the house
the neighbor was in fault, and ought to have taken better care
of his interest He (the plaintiff) built at his peril, for
it was not possible for him, merely by building upon his own
ground, to deprive the other party of such use of his as he
should deem most advantageous. There was no right ac-
quired by his ten years' occupation to keep his neighbor at a
convenient distance from him It is, in fact, damnum
absque injuria For the loss of or injury to the soil
merely, his action may be maintained. The defendants
should have anticipated the consequences of digging so near
the line, and they are answerable for the direct consequential
damage to the plaintiff, although not for the adventitious
damage arising from his putting his house in a dangerous
position." 1
Although, in Farrand v. Marshall, Harris, J. expressed a
1 Thurston v. Hancock, 12 Mass. 226.
516 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV.
decided impression that, upon the facts of the case of Thurs-
ton V. Hancock, the same was incorrectly decided, yet he
sustains the general view of the law as there stated, that
while, as an incident to property, every owner of land has a
right to a lateral support thereof by the adjacent soil of
another, he has no right to claim such support for an in-
creased burden upon his land.^ «
5. The case of Farrand v. Marshall was one where one
owner, for the purpose of procuring clay for the manufacture
of brick, dug for the same in his own soil so deep and so
near to the line of the adjacent owner as to cause the soil of
the latter to fall into the excavation. It was again argued
and decided upon an appeal, in which Wright, J. gave the
opinion confirming that given by Harris, J., above stated.
He admitted that it might be too late to question the
soundness of Thurston v. Hancock, and repeated
[*434] the *position in several forms, that one may dig on
his own land, but not so near that of his neighbor
as to cause the land of the latter to fall into his pit.^
6. So far as the rights of adjacent owners to the support
of each other's soil in its natural state is concerned, the rule
above stated has been recognized as law in the following
cases, in some of which the doctrine was applied to cases of
excavations made by companies in constructing railroads and
other public works. ^
7. The case of Lasala v. Holbrook involved also the ques-
1 Farrand v. Marshall, 19 Barb. 380, 385, 386. See also Eichardsou v. Vt.
Cent. E. R. Co., 25 Vt. 465.
2 Farrand v. Marshall, 21 Barb. 409, 415.
3 Lasala v. Holbrook, 4 Paige, 169; Radcliff v. Mayor. &c., 4 Comst. 195
Hunt V. Pcake, Johns. Ch. (Eng.) 705 ; Charless r. Rankin, 22 Mo. 566 ; M'Guire
V. Grant, 1 Dutch. 356, 363, 368; Com. Dig., Action on Case for a Nuisance, A
Slingsby v. Barnard, 1 Rolle, 430; Panton v. Holland, 17 Johns. 92; Wyatt
V. Harrison, 3 Bariicw. & Ad. 871 ; Hunipliries v. Brogdcn, 12 Q. B. 739, 744
Barnes v. Ward, 9 C. B. 392, 412 ; Bonomi v. Backhouse, Ellis, B. & E. 622
642 657; Hay v. Cohoes Co., 2 Comst. 159; Richardson v. Vt. Cent. R. R
Co., 25 Vt. 465 ; No. Eastern R. W. Co. v. Elliot, 1 Johns. & H. 145 ; Foley
V. Wvcth, 2 Allen, 131 ; Rowhotham v. Wilson, 8 Ellis & B. 123, 142; 2 Dane,
Abr. 717 ; Howland v. Vincent, 10 Mete. 371, 373.
Sect. 1.] EASEMENT OF LATERAL SUPPORT OF LAND. ;j17
tioii liow far the existence of a house upon one man's land
prevents the adjacent owner from digging in his land adjoin-
ing that upon Avhich the house is standing. In that case
the complainants owned a church which had stood on their
land for thirty-eight years. The line of the defendant's
land was six feet distant from the church. He commenced
excavating for the purpose of erecting a building covering
his lot. The effect was to crack the walls of the church,
by the settling of the land, and the application was for
an injunction to such excavation. The Chancellor states
the law as follows : "I have a natural right to the use
of my land, in the situation in which it was placed by
nature, surrounded and protected by the soil of the adja-
cent lots. And the owners of those lots will not be
permitted to destroy my land, by removing this natural
support and barrier My neighbor has the
* right to dig a pit upon his own land, if necessary [*435]
to its convenient or beneficial use, when it can be
done without injury to my land in its natural state. I can-
not, therefore, deprive him of this right by erecting a build-
ing on my lot, the weight of which will cause my land to
fall into the pit which he may dig, in the proper and legiti-
mate exercise of his previous right to .improve his own
lot." 1 He cites Thurston v. Hancock, with approbation of
the doctrine there maintained, and also the case of Pan-
ton V. Holland, stated hereafter. " From the recent English
decisions it appears that the party who is about to endanger
the building of his neighbor, by a reasonable improvement
on his own land, is bound to give the owner of the adjacent
lot proper notice of the intended improvement, and to use
ordinary skill in conducting the same, and that it is the
duty of the latter to shore or prop up his own building, so
as to render it secure in tlie mean time." ^ He then goes
1 See also Beard v. Murphy, 37 Verm. 102.
2 Peyton v. Mayor, &c., 9 Barnew. & C. 725 ; Massey v. Goyder, 4 Carr. &
P. 161.
518 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. IV.
on to state that there is a class of cases where the owner of
a building is protected from the consequences of excavations
or alteration of the adjoining premises. " These are ancient
buildings, or those which have been erected upon ancient
foundations, and which by prescription are entitled to the
special privilege of being exempted from the consequences
of the spirit of reform operating upon the owners of the ad-
jacent lots, and also those which have been granted in their
present situation by the owners of such adjacent lots, or
by those under whom they have derived their title." ^ The
Chancellor held that the owners of the church had acquired
no prescriptive right, and as they did not hold directly or
indirectly from the grantor of the respondent, an injunction
was refused.
But the law, as stated by the Chancellor, seems to
[*436] be * well settled by that and other cases, namely,
that the owner of a building standing near the land
of another has no right to hold the same protected from any
excavation in the adjacent land, which would not injuri-
ously affect the soil on which it stands, if not burdened with
such building,^ unless the owner of both parcels had con-
veyed the parcel and the dwelling-house ; for in that case
the right of having it supported passed with the same for
the benefit of whoever may be the owner thereof, and the
owner of the adjacent parcel took it charged with the duty
or servitude of supporting the house, as well as the natural
soil on which it stands.^ Or, unless the house shall have
1 Ante, p. 50 ; Dodd v. Holme, 1 Adolph. & E. 493 ; per Littledale, J., post,
sect. 4, pi. 7 ; Hide v. Thornborough, 2 Oarr. & K. 250.
2 M'Guirc V. Grant, 1 Dutch. 356, 362 ; Gayford v. Nichols, 9 Exch. 702,
708; Richardson v. Vt. Cent. R. R. Co., 25 Vt. 465*; Hunt v. Peake, Johns.
Ch. (Eng.) 705, 710; No. East. R. W. Co. v. Elliot, 1 Johns. & H. 145, 153;
Smith V. Keniick, 7 C. B. 515, 565.
3 Cox V. Matthews, 1 Ventr. 237 ; Palmer v. Fleshees, I Sid. 167 ; s. c, under
name of Palmer v. Fletcher, 1 Lev. 122 ; M'Guire v. Grant, 1 Dutch. 356, 365 ;
Richards v. Rose, 9 Exch. 218; Humphries v. Brogden, 12 Q. B. 739, 746;
Caledonian R. W. Co. v. Sprot, 2 Macq. II. of L. Cas. 449 ; Harris ». Ryding,
5 Mees. & W. 71 ; No. East R. W. Co. v. Elliot, 1 Johns. & H. 145, 153 ; Solo-
mon V. Vintners' Co., 4 Hurlst. & N. 585, 597 ; United States v. Appleton, I
Sumn. 492, 500 ; Eno v. Del Vccchio, 4 Duer, 53.
Sect. 1.] EASEMENT OF LATERAL SUPPORT OF LAND. 519
stood SO long as to have acquired a prescriptive right to
such support as an easement, in either of wliich latter cases,
if the owner of the adjacent parcel dig tlie same to the in-
jury of such house he will be held responsible.^
8. While the doctrines above stated are sustained by Pan-
ton V. Holland, another important principle is there estab-
lished, that, although one may dig in his own land for all
lawful purposes, and by so doing may injure a dwelling-
house recently erected by another upon the adjacent parcel
of land, yet he has no right to do this carelessly, nor
with an intent * to injure the occupant of the neigh- [*437]
boring tenement. In that case the defendant, in
erecting a house in New York, dug the foundations deeper
than those of a house standing upon the adjacent parcel,
whereby the walls of the house were injured. The court,
"Woodworth, J., says: "On reviewing the cases, I am of
opinion that no man is answerable in damages for the rea-
sonable exercise of a right, when it is accompanied by a cau-
tious regard for the rights of others, when there is no just
ground for the charge of negligence or unskilfulness, and
when the act is not done maliciously." The court cite
Thurston v. Hancock, with approbation. " The result of
my opinion is, that the plaintiff has not shoT^n a right to
recover damages in this case, unless it be on the ground of
negligence in not taking all reasonable care to prevent the
injury. That is a question of fact." ^
1 Lasala v. Holbrook, supra ; Hide v. Thornborough, 2 Carr. & K. 250 ;
Stansell v. JoUard, 1 Selw. N. P. 457, cited by Parke, B. ; Humphries v. Brog-
den, 12 Q. B. 739, 749 ; Bonomi v. Backhouse, Ellis, B. & E. 622, 646, 660 ;
Partridge v. Scott, 3 Mees. & W. 220 ; M'Guire v. Grant, 1 Dutch. 356, 364 ;
Eno V. Del Vecchio, 4 Duer, 53, 64 ; Brown v. Windsor, 1 Crompt. & J. 27.
2 Panton v. Holland, 17 Johns. 92; Foley v. Wyeth, 2 Allen, 131 ; Trower
V. Chadwick, 3 Bing. n. c. 334 ; Bradbec v. Clirist's Hospital, 4 Mann. & G.
714, 758; Dodd v. Holme, 1 Adolph. & E. 493; Radcliff v. Mayor, &c., 4
Comst. 195, 203 ; Richart v. Scott, 7 Watts, 460 ; M'Guire v. Grant, 1 Dutch.
356, 361 ; Thurston v. Hancock, 12 Mass. 220; Shrieve v. Stokes, 8 B. Monr.
453 ; Massey v. Goyder, 4 Carr. & P. 161 ; Hay v. Cohoes Co., 2 Comst. 159;
Richardson 'v. Vt. Cent. R. R. Co., 25 Vt. 465 ; Charless i'. Rankin, 22 Mo. 566 ;
Hart V. Baldwin, 1 N. Y. Leg. Obs. 139. Sec also Humes v. Mayor, &c. 1 Humph.
407.
520 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. IV.
9. This doctrine is fully sustained in the English courts,
both as to excavations upon the surface and in working mines.
If a stranger digs away the support of one's soil or his house,
and the same is thereby injured, he is liable in damages.
So is the adjacent land-owner, if he do it wrongfully, care-
lessly, and negligently.^
10. In Radcliff v. Mayor, &c., Bronson, C. J. is not dis-
posed to limit the power of any man over his own premises
by rules even as narrow as those above stated. "He may
dig in his own land, though the house which his neighbor
has previously erected at the extremity of his land be there-
by undermined and fall into the pit." He criticises
[*438] the *language used in Lasala v. Holbrook, as carry-
ing the doctrine of a natural right to hold one's
land free from interference by the adjacent owner's removing
its natural support too far, especially in a city. "I think the
law has superseded the necessity of negotiation by giving
every man such a title to his own land that he may use it
for all the purposes to which such lands are usually applied,
without being answerable for the consequences, provided he
exercises proper care and skill to prevent any unnecessary
injury to the adjacent land-owner." ^
11. One of the cases relied on in the above case was that
of Wyatt V. Harrison, where the court, in speaking of a
party's right to dig on his own land, say : " But if I have
laid an additional weight upon my land, it does not follow
that he is to be deprived of the right of digging in his own
ground because mine will then become incapable of support-
ing the artificial weight which I have laid upon it." ^
12. Whoever erects a house upon his own premises must,
in order to complain of an injury by excavation in the ad-
1 Jeffries v. Williams, 5 Exch. 792 ; Bibby v. Carter, 4 Hurlst. & N. 153.
2 Radcliff V. Mayor, &c., 4 Comst. 195, 201, 203. But see Farrand u. Mar-
shall, 21 Burl). 409, negativing the doctrine that one may dig in his own land
so as to cause the soil of his neighbor to fall, and declaring the above doctrine
of Bronson, J., an ohite)- dictum. See 2 Washb. Real Prop. 75, note.
•* Wyatt V. Harrison, 3 Barncw. & Ad. 871.
Sect. 1.] EASEMENT OF LATERAL SUPPORT OF LAND. 521
jaceiit soil affecting such structure, not only build of proper
materials and in a proper manner, but he cannot otherwise
acquire a prescriptive right to have the foundations of his
house undisturbed by excavations made with ordinary care
and diligence in the adjacent premises. " If the first builder,
in the construction of his wall, use materials unfit for the
purpose, or the materials, though suitable, arc so unskilfully
built in the wall that it cannot be preserved and supported
by ordinary care and diligence, with the use of the ordinary
and usual means resorted to in practice for that purpose,
when the second builder comes to dig out the foundation for
his house, but notwithstanding the use of such care,
*diligence, and means by the latter to prevent it, the [*439]
walls give way, and with it a part or the whole of the
first building falls, occasioning small or great loss to the
owner thereof, it must bo regarded as damnum sine injuria^
for which the second builder is in no wise responsible." It
was contended that, as the house had stood over twenty-one
years, the adjacent owner had no right to disturb it by
excavations in his premises, although the house were im-
properly or insufficiently built. But the court repudiate
the doctrine in express terms : " Such a principle, when
carried out, may go to exclude the owner of a lot in a situa-
tion similar to that of the defendant from building on it
altogether, which would be inconsistent with principles of
sound policy, as well as of law and natural justice." ^
So, though one by excavating within his own premises
cause an injury to his neighbor's premises, he would not be
responsible therefor, if he had no just cause for supposing
such a consequence would follow, and it resulted from some
unforeseen cause.^
13. In determining whether a party had been guilty of
carelessness in excavating his own land, reference may be
1 Ricliart v. Scott, 7 Watts, 460 - 464. See Littkdah, J., in Dodd v. Holme,
1 Adolph. & E. 49.3 ; Hunt v. Peake, Johns. Ch. (Eng.) 705, 711.
2 Shrieve v. Stokes, 8 B. Monr. 453; Chadwick v. Trower, 6 Bing. n. c. 1.
522 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. IV.
had to what is usually done by other builders in similar
cases, since the law does not impose upon any owner the
exercise of extraordinary means of precaution, unless such
care was obviously needed from the situation of the prop-
erty.i
14. The recent case of Hunt v. Peake sustains the doc-
trine which the Vice-Chancellor regarded as a controverted
one, that, if one enjoys the support of a dwelling-house upon
land adjoining that of another for twenty years, the latter
may not withdraw that support by excavations made
[*440] in his *land.2 And in a still more recent case, it
was settled, that, " if a land-owner conveys one of
two closes to another, he cannot afterwards do anything to
derogate from his grant ; and if the conveyance is made for
the express purpose of having buildings erected on the land
so granted, a contract is implied on the part of the grantor
to do nothing to prevent the land from being used for the
purpose for which, to the knowledge of the grantor, the
conveyance is made." This is said of the right which one
may acquire thereby to the support of buildings which he
may erect upon his own land against the adjacent land of
another.'^
15. A question involving several of the matters above
considered was raised in a late case in Massachusetts, Foley
V. Wyeth, where, after assuming the law to be well settled,
that, " if the owner of land makes an excavation in it, so
near to the adjoining land of another proprietor that the soil
of the latter breaks away and falls into the pit, he is respon-
sible for all the damage thereby occasioned," the court dis-
1 Shrieve v. Stokes, 8 B. Monr. 453, 457. See Charless v. Rankin, 22 Mo.
566, 574.
'■^ Hunt V. Peake, Johns. Ch. (Eng.) 705; rartridge v. Scott, 3 Mees. & "W.
220; Rogers v. Taylor, 2 Ilurlst. & N. 828, 833; Smith v. Kenrick, 7 C. B.
565; Stanseli v. JoUard, 1 Selw. N. P. 457; Humphries v. Brogden, 12 Q. B.
736, 750 ; Rowhotiiam v. Wilson, 8 Ellis & B. 140, per Bmmivell, B.
3 No. East. R. W. Co. v. Elliot, 1 Johns. & H. 145, 153 ; Caledonian R. W.
Co. V. Sprot, 2 Macq. H. of L. Cas. 449 ; Rowbotham v. Wilson, 8 H. of L.
Gas, 348.
Sect. 1.] EASEMENT OF LATERAL SUPPORT OF LAND. 523
CUSS the point, how far the owner of land adjoining that on
which a house has been recently erected would be liable for
an injury to the same by digging witliin his own premises, if
he was not chargeable with a want of due care and skill or
positive negligence in so doing. And the conclusion to
which they arrive is, that, in the absence of any proof of
carelessness, negligence, or unskilfulness in the execution of
the work, so far as the house was concerned, a jury had no
right to regard, as an element of damage, the fact that such
digging caused the foundation of the plaintiff's house to
crack and settle, although he were entitled to re-
cover for *causing the natural soil of the plaintiff [*441]
to fall into the excavation made by the defendant.
And in this they coincide with the rule which was practically
applied in Thurston v. Hancock.
In the case of Foley v. Wyeth, the defendant had not only
caused the soil upon the plaintiff's premises to fall into the
place excavated, and also the soil under a way that led to
the plaintiff's premises, but had also caused the foundation
of his house standing thereon to crack and settle. But as
there was no evidence of this having been done carelessly, it
was held that he could recover for the first, but not for the
last injury alleged. As to the first, the court say : " This
does not depend upon negligence or unskilfulness, but upon
the violation of a right of property which has been invaded
and disturbed." ^ And similar language is used by the
court of Vermont, in Richardson v. Vermont Central Rail-
road Co.^
Nor is it enough to hold the defendant liable for an in-
iury to adjacent land arising from his digging in his own,
that what he did contributed to the injury, the plaintiff must
show that he did not, himself, contribute to the injury com-
plained of.2
1 Foley V. Wyeth, 2 Allen, L31.
2 Rk-hardson v. Vt. Cent. R. R. Co., 25 Vt. 465, 471.
3 Smith V. Hardesty, 31 Mo. 412.
524 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV.
But, say the court, in Foley v. Wyeth, " this unqualified
rule is limited to injuries caused to the land itself, and does
not afford relief for damages by the same means to artificial
structures. For an injury to buildings which is unavoidably
incident to the depression or slide of the soil upon which
they stand, caused by the excavation of a pit on adjoining
land, an action can only be maintained when a want of due
care and skill, or positive negligence has contributed to pro-
duce it."
It will be perceived that the court here consider an estate
in land with buildings thereon, if recently erected, as made
up of two parts or elements, so far as the claim of the owner
thereof for damages by removal of its lateral support is con-
cerned. In respect to the land, they hold it to be an invari-
able rule of property, that a removal of its lateral support by
excavation in the adjacent parcel is a violation of the
[*442] right *of property, and is actionable, independent of
the consideration whether it was done with or with-
out negligence or unskilfulness. Whereas, whether the in-
jury to the house shall be actionable depends upon its being
done with a want of due care or skill, or not.
Regarding the first part of this proposition as res adjndicata,
although it is said by Harris, J., in Farrand v. Marshall, that
the rule, as stated by Rolle, had never been formally adopted
as a rule of law, except by the obiter dicta of some of the
judges, it only remains to ascertain by what rule the second
part of the above proposition is to be applied. What is the
measure of the care and diligence necessary to be observed
in respect to such house, in excavating the soil of the adjoin-
ing lot ?
It seems to be conceded, in all the cases, that no man has
a right to claim any aid or support in respect to his house, if
a modern one, from the land of the adjacent owner. So far
as the right of support of his land by that of his neighbor is
a servitude, or in the nature of a servitude, upon the latter,
he has no right to add to or increase it by putting any new
Sect. 1.] EASEMENT OF LATERAL SUPPORT OF LAND. 525
burdeu upon his land. In other words, no man can claim
for his land and house together any greater amount of sup-
port from his neighbor's land than he had originally a right
to claim for merely his land alone, Avhile unburdened by a
house.^
But as the case supposes that the house may be injured by
the digging in the adjacent soil, and its owner may be with-
out remedy therefor, though such digging may have removed
the necessary natural support of his soil, under one state of
facts, and for a similar injury he may have a remedy under
a different state of facts, and that this difference consists in
the degree of care with which it is done, it becomes
important to ascertain what rule or test *is to be ap- [*443]
plied in measuring the degree of care which is to be
exercised by the one causing the excavation in his own land.
It is obvious that the court mean to apply a different
test than the mere fact of removing the natural support,
for that was done in Foley v. Wyeth, and it was held that,
in order to recover for the house, the owner must show,
positively, want of due care or skill, or actual negligence.
Besides they say : " To make a justifiable use of his own,
he (the one causing the excavation) must have a proper
respect to the appropriation which has already been made
by the owners of the surrounding territory, and, there-
fore, when one undertakes to make an excavation on his
land, he must consider how it will be likely, in view of the
existing and actual occupation of others, to affect the soil
of his neighbor," And this was said in answer to the
ground taken, that if the injury complained of was in any
degree caused by, or would not have occurred but for the
additional weight of buildings erected on their land by
persons other than the plaintiff, he could not recover in
the action, and was a kind of corollary to the proposition,
that " he who, in the execution of an enterprise for his
1 Charless v. Rankin, 22 Mo. 566, 571 ; Partridgi' v. Scott, 3 Mees. & W.
220; Farrand v. Marshall, 19 Barb. 380, 387.
526 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. IV.
own benefit, changes the natural condition of the parcel
of territory to which he has title, and thereby takes away
the lateral support to which the owner of the adjoining
estate is entitled, cannot exonerate himself from respon-
sibility by showing that the particular injury complained
of would not have occurred if other persons had never
made alterations in or improvements upon their respective
closes."
The way to reconcile these views and suggestions, and
still to retain the distinction between an injury to the nat-
ural soil and an injury to the same soil burdened by a house
or other structure thereon, seems to require some suoii rule as
this ; not only must the owner of the land, when caus-
[*444] ing an excavation thereon to be made, so *conduct
it as not to disturb the soil of the adjacent lot in its
natural state, but if there be a dwelling-house thereon, he
must use such care in the mode of excavating, to the extent
above stated, as not to injure the house, provided this can
be done witliout subjecting himself to extraordinary expense
in guarding against such injury. He might, for instance,
if there were no house standing upon the land, dig and re-
move portions of the lateral support for a considerable dis-
tance without substituting any such safeguard as a wall,
and no injurious consequences would follow. Whereas if
there were a house standing thereon, in order safely to carry
the excavation to the same extent, bordering upon the land
of his neighbor, he must expose only small portions of the
soil at a time, as was done in Lasala v. Holbrook, where the
defendant, as fast as he dug away his soil near the land of the
plaintiff, sup[)lied a support by the cellar-wall on which he
was to rest his own house.
Still, even in this respect, he would only have to use
reasonable care and diligence. Thus he would not have to
prop up his neighbor's house, if the owner was cognizant of
the excavation being made, in order to prevent its falling.^
1 Peyton v. Miiyor, &c., 9 Barnew. & C. 725 ; Charless v. Rankin, 22 Mo.
5GG, 574.
Sect. 1.] EASEMENT OF LATERAL SUPPORT OF LAND. 527
In forming a jndgment of what would be a safe and proper
mode of conducting his work of excavation, he may have a
reasonable regard to the judgment of other practical, judi-
cious, and skilful men.^
But a possible damage to another, in the cautious and
prudent exercise of a lawful right, is not to be regarded,
and if a loss is the consequence, it is damnum absque in-
juria. And tlie owner of the house would have no right
to recover damages, unless it be upon the ground of
*negiigence in not taking all reasonable care to pre- [*445]
vent the injury .^
16. Another circumstance to be regarded in measuring
the degree of care which one must exercise in such cases, is
the means and opportunity he had to know, or have reasona-
ble ground to believe, that he was endangering liis neighbor's
property by his acts. This matter is somewhat considered in
Shrieve v. Stokes,^ above cited. The court there assume
that it was the defendant's duty in digging, even upon his
own ground, and for his own lawful purposes, to proceed
with reasonable care and a due regard to the safety of the
neighboring house. But they say : " We are of opinion that
upon the question of reasonable care, in digging the defend-
ant's cellar near the plaintiff's house, it was admissible to
prove what was usually done by builders in digging cellars
under similar circumstances In order to impose upon
the defendant the duty of using any extraordinary means for
the protection of the plaintiff's house, it must have been
apparent, iipon common observation, that the digging of his
cellar would probably cause the house to fall." There was
in that case an alley of two or three feet in width between
the cellar and the house, and the court say : " Unless the
1 Charless v. Ilankin, supra.
^ Piinton V. Holland, 17 Johns. 92, 100, 101.
3 Shrieve v. Stokes, 8 B. Monr. 453, 459. See also Richardson v. Vt. Cent.
R. R. Co., 25 Vt. 465, 471 ; Chadwick v. Trower, 6 Bing. n. c. 1 ; Dodd v.
Holme, 1 Adolph. & E. 493 ; Walters v. Pfcil, Mood. & M. 362 ; post, sect. 3,
pi. 7.
528 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV.
nature of the intervening earth was such as to render it
highly probable that it would give way, upon the cellar being
dug out, and thus cause the plaintiff's house to fall, there
could be no obligation on the defendant to take any precau-
tion, except that he should not disturb or break down the
alley Unless the plaintiff was entitled to have his
house supported not only by the alley, but by the compact
earth on the defendant's lot adjoining the alley, the mere
removal of that earth was not a breach of duty in
[*446J the ^'defendant. And in that case he could not be
said to have caused the loss to the plaintiff, nor be
held liable for it, unless he knew, or had good reason to
believe, that the removal of the earth up to his own line
would occasion the loss before the necessary support should
be supplied by building up his cellar wall, or unless the loss
could be fairly attributed to his want of ordinary skill or
care in loosening or removing the earth from his own lot." ^
It may be stated, in this connection, that the question of
the right of the owner of the house to recover damages does
not depend upon the state of repair of the house. It was held
that such owner might recover in an action, although it
appeared that the house, if let alone, would not have stood
six months.^
Further illustrations of the doctrine of the right of ease-
ment and servitude of lateral support for land will be found
when the subject of subjacent support of land is considered,
in a subsequent part of this work, as the analogy between
the two renders it unnecessary to repeat in respect to one
what, upon several points, may be said of the other.^
The case, however, of Dodd v. Holme may be properly
referred to at some greater length, as it bears upon several
of the points already referred to. In this case the plaintiff
had an ancient house standing on his own land near that of
the defendant. The latter, in order to build a house on his
land, dug a cellar which came within about four feet of the
1 Dodd V. Holme, 1 Adolph. & E. 493. 2 p„s^ sect. 4, pi. 4, et seq.
Sect. 1.] EASEMENT OF LATERAL SUPPORT OF LAND. 529
plaintiff's house. The house began to give way, when the
defendant attempted to shore it up. The weather was un-
usually wet, and partly from this cause, and partly from
a want of shores, the house fell. The question submitted to
the jury was, " T^hether the fall was occasioned by the
defendant's negligence ? " The jury found for the plaintiff,
and the court sustained the verdict. But in doing this, a
part of the judges regard tlie fact of the house
having been *an ancient one as an important cir- [*447]
cumstance, taken in connection with the fact of
negligence found by the jury. Taunton, J. said : " If the
building had fallen down merely in consequence of its infirm
condition, that would not have been a damage by the act of
the defendant." And Williams, J. : " If it was true that
the premises could have stood only six months, the plaintiff
still had a cause of action against those who accelerated its
fall ; the state of the house miglit render more care necessary
on the part of the defendants not to hasten its dissolution."
But it will be perceived that tliroughout the case, the plain-
tiff's house being ancient, that and the land are treated of as
an entire thing, each part having an equal right to protection,
no distinction being made, as in Thurston v. Hancock, and
Foley V. Wyeth, between the damage to the land and that to
the house. ^
In this connection reference may also be made to Walters
V. Pfeil,^ where the court held, that though if there be two
houses adjoining each other, and it is necessary to take down
one, the owner of the other ought to shore it up, if necessary
to its security, yet, though he omit to do this, he would not
be without remedy if the other party so irregularly and im-
properly took down his house as thereby to cause the other
house to fall; or, in the words of the judge (Tenterden),
if " the house of the defendant was pulled down in a waste-
ful, negligent, and improvident manner, so as to occasion
1 See also Hide ?•. Thornborough, 2 Carr. & K. 250.
- Walters v. Pfcil, Mood. & M. 362.
34
530 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. IV.
«
greater risk to the plaintiff's than in the ordinary course of
doing the work they would have incurred."
17. Questions somewhat related to those above alluded
to, incidentally arose in the case of Chadwick v. Trower,
which was an action for so carelessly taking down the de-
fendant's vault, that the plaintiff's wine-vault and wine
were injured. After discussing the form of the declaration,
and what was averred therein in respect to the de-
[*448] fendant's * obligation to do certain things in respect
to the plaintiff's vault that adjoined his, the judge,
Parke, B., says : " The question is, whether the law imposes
upon the defendant an obligation to take such care in pull-
ing down his vaults and walls as that the adjoining vault
shall not be injured. Supposing that to be so, where the
party is cognizant of the existence of the vault, we are all
of opinion that no such obligation can arise where there
is no averment that the defendant had notice of its exist-
ence ; for one degree of care would be required where no
vault exists, but the soil is left in its natural and solid state ;
another, where there is a vault ; and another, and still
greater decree of care would be required where the adjoin-
ing vault is of a weak and fragile construction." ^
18. And there is great force in the remark of Wardlaw,
J., in Napier v. Bulwinkle, as to the gaining rights by one,
and imposing duties upon another, of two adjoining estates
by mere length of time in which a certain state of things has
existed. " Where the enjoyment was in its nature hidden,
or, although it was apparent, there was no ready means for
resisting it within the power of the servient owner, assent
was not implied, and the influence of twenty years' time,
therefore, not acknowledged." ^
1 Chadwick v. Trower, 6 Bing. n. c. 1.
2 Napier v. Bulwinkle, 5 Rich. 311, 324.
Sect. 2.] EASEMENT OF SUPPORT OF HOUSES. 531
*SECTION II. [*449]
EASEMENT OF SUPPORT OF HOUSES.
1. Right of support of liouses on each other gained by grant or prescription.
2. Rules of the civil law upon the subject.
3. Right of mutual support when incident to adjoining houses.
4. Right limited to adjoining houses, where it exists.
5. Of the care to be used in taking down a house adjoining another.
6. Right of support of houses may be gained by prescription.
7. One responsible for want of care in taking down his house.
1. Of a charactor somewhat analogous to that of the ease-
ment which the owner of a house may acquire by grant or
prescription, of having it supported by the soil of an adjacent
proprietor, and which has been above considered, is that
which the owner of a house may acquire of having the same
supported by an adjacent house. As both these are artificial
structures, this right can, in no sense, be a natural one, and
if, therefore, it exist at all, it can only have been acquired by
grant or prescription.^
2. As a servitude, it was known to the civil law under the
name of oneris ferendi, by which the wall or pillar of one
house is bound to sustain the weight of the buildings of the
neighbor, and the owner of the servient building was bound
to keep it in repair, and sufficiently strong for the weight it
had to bear, unless it was otherwise expressly stipulated by
agreement, or it had otherwise been practised for a sufficient
lengtl\ of time. And while the wall was being rebuilt, the
support of the dominant house was to be provided by the
owner thereof.^
3. There may be a mutual right of support by two or
more houses arising from grant or reservation, where they
1 Solomon v. Vintner's Co., 4 Hurlst. & N. 598.
2 Ayl. Pand. 309 ; 3 Burge, Col. & F. Law, 402 ; Domat, B. 1, t. 2, § 2, p. 7 ;
D. 8, 2, 33. 2 Fournel, Traite du Voisinage, 413, § 248. The distinction be-
tween the above right or servitude and the " Droit d'appui," or a simple right of
support, is pointed out in the above work of M. Fournel, § 31.
532 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. IV.
[*450] *are erected by one owner, and are so constructed as
to require such support, and arc then conveyed to
different owners, or one is conveyed and the other retained
by the original owner. The right of support, in such cases,
is incident to the property so far as to pass with it, unless
excluded by the terms of the grant. The law in such cases
presumes a grant or reservation of the right of support in
favor of each of the tenements.^
4. A question how far an easement of support may arise
in favor of one house against another came up in Solomon v.
Vintners' Co., where there were three houses in a block.
The plaintiff owned the first, the defendant the third, and
the intermediate house standing between them belonged to
a third person. The houses stood upon a hill, and for over
thirty years had been out of perpendicular, the first leaning
towards and upon the second and third. The defendant's
house being out of repair, he pulled it down in order to re-
build it. In consequence of this the intermediate house
leaned more than before, and the plaintiff's house fell. And
for this he brought his action. There had never been a
common ownership of the houses, nor did it appear under
what circumstances they were originally constructed.
The court assumed that the one who took down the de-
fendant's house was negligent in the manner in which the
work was done. The plaintiff insisted that he had, by long
enjoyment, acquired the right to have his house supported
by the adjacent house. But Pollock, C. B., in treating of
this, says : " If the house removed had been the next
adjoining the plaintiff's, we should have felt much em-
barrassed by some cases and dicta. In Stansell v. JoUard,^
and Hide v. Thornborough,^ such a right of support is stated
1 Ilichiirds v. Hose, 9 Exch. 218. Sec rartridge v. Scott, 3 Mees. & \V. 220 ;
Wch.stcr V. Stevens, 5 Duer, 553; Eno v. Del Vecchio, 4 Duer, 53; United
States V. Ai)[jleton, 1 Suinn. 492, 500; Partridge v. Gilbert, 15 N. Y. 601 ; 1
Fournel, Traite' dii Voisinage, § 31.
2 Stansell v. Jollard, I Selw. N. P. 457.
3 Hide V. Thornborough, 2 Carr & K. 250.
Sect. 2.] EASEMENT OF SUPPORT OF HOUSES. 633
to be *gained if the houses liave stood for twenty [*451]
years, and in Humphries v. Brogdcn ^ Lord Campbell
refers to these cases. It is extremely difficult to see how
the circumstance of the houses having stood for twenty years
makes any difference, or creates a right where houses are
supposed to have been built by different adjoining land-own-
ers, each with its own separate and independent walls, but,
upwards of twenty years ago, one of them got out of i)erpen-
dicular, and leaned upon and was supported in part by the
others, so that if the latter were removed, the other would
fall And it seems contrary to justice and reason, that
a man, by building a weak house adjoining to the house of
his neighbor, can, if the weak house gets out of the perpen-
dicular, and leans upon the adjoining house, thereby compel
his neighbor either to pull down his own house, within
twenty years, or to bring some action at law, the precise
nature of which is not very clear. Otherwise, it is said, an
adverse right should be acquired against him." But as the
plaintiff's house did not adjoin that of the defendant, the
court held the latter could not be responsible to the former
for the injury to his house by the removal of the defendant's
house.
Bramwell, B. agrees with the Chief Baron in his conclu-
sions, but avoids the point of how far and when the owner
of one house can gain an easement of support against an-
other, as involving questions of very great difficulty and
importance, and on which he would rather not pronounce
an opinion, without a great deal more consideration than
he had been able to give them.^
The case of Stansell v. JoUard, however, was that of a
claim of a right to have an ancient house supported by the
adjacent soil, and not of support of one house by another.
The same was true of Hide v. Thornborough.
*5. In Peyton v. Mayor, &c., the action was for [*452]
1 Humphries v. Brogden, 12 Q. B. 739, 749.
2 Solomon v. Vintners' Co., 4 Hurlst. & N. 585 - 603.
534 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. IV.
pulling down, by the defendant, of his own house with-
out shoring up that of the plaintiff, which leaned upon it,
by reason of which the latter fell. The defendant's house
was old, and required to be taken down. The count in the
plaintiff's writ assumed that the defendant, when he took
down his house, was bound to shore up the plaintiff's house,
and it did not aver that defendant failed to give him notice,
so that the plaintiff could have done it himself; so that
whether such notice was necessary was not a question raised
in the case. It did not appear whether both houses were
built at the same time or at different times. The freehold of
the two was then in different hands. The plaintiff must,
from his situation in this case, have known of the act of tak-
ing down the defendant's house. From the want of any
evidence of a grant of a right of support of plaintiff's house
upon defendant's, the court held, under the plaintiff's decla-
ration, he could not recover for the injury to his liouse.^
No obligation or servitude of support of one buildiffg by
another arises from their mere juxtaposition, however long
continued. Nor, as it would seem, from the one house, tot-
tering and resting against the other, which stands erect, in
its original position.^
6. But, from the cases before cited, it seems to be under-
stood that one may, under some circumstances, acquire the
right of supporting his house against that of his neighbor,
if enjoyed for a sufficient length of time. And this will, at
any rate, be shown to be the case if there be a wall of mu-
tual support between them answering to a party wall.^
7. Still one may not, recklessly, and in a wasteful
[*453] and *negligent manner, take down his own house
upon his own land, and thereby cause injury to the
adjacent buildings of another. In taking down his own
1 Peyton v. Mayor, &c., 9 Barncw. & C. 725; Partridge v. Gilbert, 15 N. Y.
601, 612.
2 See Napier v. Ikil winkle, 5 Rich. 311, 324.
8 Wiltshire v. Sidfortl, 8 Barnew. & C. 25'J, note; Cubitt v. Porter, 8 Barnew.
& C. 257.
Sect. 3.] EASEMENT OF PARTY WALLS. 535
house ho is bound to exercise reasonable care, and either to
give the adjacent owner notice of the proposed alteration in
the premises, and an opportunity to protect his premises by
proper props and guards, or to provide them himself, unless
the structure which he takes down is wholly his own and
upon his own land. But if he give the other party notice,
and he fails to protect his buildings from injury, the party
who takes down the house is not bound to use any extraor-
dinary care in preventing an injury to the premises of the
other party. 1
SECTION III.
EASEMENT OF PARTY WALLS.
1. Servitude of the civil law answering to party walls.
2. What constitutes a party wall.
3. Either party may build upon his part of the wall.
4. Either party may repair or enlarge his part of the wall.
5. Cubitt V. Porter. How far one may rebuild the whole wall.
6. When a wall is deemed a party wall.
7. Degree of care to be used in repairing a party wall.
8. How far one may underpin a party wall.
9. Of the respective rights of the owners to repair party walls.
10. Right to use the wall by one, though the other house be destroyed.
11. Covenant to pay for party wall runs with the land.
12. Common wall erected by tenants for years not a party wall.
13. Sherred v. Cisco. Of recovering expense of rebuilding a party wall.
14. How far destruction of premises destroys the easement.
15. Easement mutual, though property in the wall several.
16. Burlock v. Peck. How far agreements bind successive owners.
17. Neither part}' may impair the wall on his own land.
18. Rules of civil law as to repair of party walls.
19. French law as to party walls.
20. Law of Pennsylvania as to party walls.
* 1. Among the urban servitudes of the civil law [*45'1]
1 Walters v. Pfeil, Mood. & M. 362; Massey v. Goyder, 4 Carr. & P. 161 ;
Trower v. Chad wick, 3 Bing. n. c. 334 ; s. c, 6 Bing. n. c. 1, reversing the for-
mer judgment; 2 Washb. Real Prop. 77 ; Charless v. Rankin, 22 Mo. 566, 572 ;
Eno V. Del Vecchio, 4 Duer, 53, 66 ; s. c, 6 Duer, 17 ; Hart v. Baldwin, 1 N.
Y. Leg. Obs. 139; 3 Kent, Comm. 437 ; Brown v. Windsor, 1 Crompt. & J. 20;
Humphries v. Brogden, 12 Q. B. 739, 751 ; Partridge v. Gilbert, 15 N. Y. 601,
612.
536 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. IV.
was that of a right in one man to fix a heam or piece of tim-
ber or stone in his neighbor's wall, immitendi tigna in pari-
etem vicini}
2. Corresponding in many respects to this, and the servi-
tude of oneris ferendi, already mentioned, is that of party
walls at the common law. By parti/ walls are understood
walls between two estates which are used for the common
benefit of both, in supporting, for instance, timbers used in
the construction of contiguous buildings standing thereon.
But the mere circumstance that a wall stands between two
contiguous buildings, and the timbers of the one are sup-
ported upon one side of the wall and those of the other upon
the other side will not necessarily make them tenants in
common of the wall. It may have been built by the parties
so as to stand one half upon the land of each. But it does
not, thereby, make them tenants or owners thereof in com-
mon. Each would still own his half in severalty, though
each may make use of it for tlie purposes of the support of
his building erected upon or against it. But if such joint
use of such wall were continued for twenty years, each ac-
quires such a right, in common with the other, to enjoy the
use and benefit of it, that it becomes thereby properly a
party wall, and neither could remove it or render it insuffi-
cient to support the building of the other upon it.
So, if one proprietor erect two adjoining houses, with a
wall between them for the purpose of supporting both build-
ings, and the same is necessary for that purpose, and he
then conveys one of these dwellings by metes and bounds,
by a line running through the centre of this wall, the grant
would not only carry what was within the limits described,
but pass, as an easement appurtenant to the grant, a right
of support of the house by the entire wall, as well
[*455] that *not included as that within the limits men-
tioned in the deed.^
1 Ayl. Pand. 309 ; D. 8, 2, 2.
2 2 Waslib. Real Prop. 78 ; 3 Kent, Comm. 437 ; Eno v. Del Vecchio, 4 Ducr,
Sect. 3.] EASEMENT OF PARTY WALLS. 537
Although party walls, murs mitoi/ens, are fully defined,
and the law in respect to them stated at much length in the
treatises ujron the French law,^ its rules seem to be much
less satisfactorily settled by the common law, although the
cases vmder it are multiplying with the growth, and increase
of our cities. Thus it is said that " what the legal rights
and burden of a ' party wall ' arc, as even its definition, is
as yet scarcely settled definitively. The term is commonly
applied to a wall of which, if divided longitudinally, the two
parts rest on land belonging to different owners, built solidly,
of materials not easily divided, or whose parts cannot be
taken down, without danger to the whole structure. In
such case, either party may remove the half on his own
land, if it does not injure tlie other half, unless one or the
other owner has an easement by grant to have his neighbor
keep his half to support his own. Walls, however, built en-
tirely on one man's land may acquire, by grant, the charac-
teristics of party loalls,'" the rights of the parties in such
cases depending, exclusively, on the character of the grant.
Another Judge in the same case defines a party wall in its
general, ordinary signification, as " a dividing wall between
two houses, to be used equally for all the purposes of an ex-
terior wall by both parties, that is, by the respective owners
of both houses." " This use, in its full, unrestricted sense,
embraces not only the use of the interior face or side of the
wall, but also such use of it as is necessary to form a com-
plete and perfect junction in an ordinary, good mechanical
manner between it and the exterior walls of the house."
" And the right of the grantee of such unrestricted use
would be the same whether the wall stood one half on the
land of one owner and one half on the land of the other,
or stood wholly upon land of the grantor of the unrestricted
53, and 6 Duer, 17 ; Sherred v. Cisco, 4 Sandf. 480 ; Matts v. Hawkins, 5 Taunt.
20 ; Cubitt v. Porter, 8 Barnew. & C. 257 ; Webster v. Steven.'!, 5 Duer, 553 ;
Murly V. M'Dermott, 8 Adolpji. & E. 138 ; 3 Kent, Comm. 437 ; 1 Fournel,
Traite' du Voisinage, 110; 2 Ibid. 217.
1 1 Le Page, Desgodets, 39 - 122,
538 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. IV.
use." But he adds, that the term " party wall " has never
been judicially defined. ^
In another case, the question grew out of the terms of the
grant, but in determining it the court goes somewhat into
the nature of the right claimed. The owner of two lots upon
a street which faced to the south, upon the eastern one of
which was a three-story brick house against whose west wall
there was a one-story brick building standing upon the west-
ern lot. He conveyed the western lot bounding it on the
east by the west line of this three-story building, " the
owners on both sides to have mutual use of the present par-
tition wall." A question was made as to the height to
which the purchaser might raise his house, and avail himself
of the west wall of the three-story house as a party wall.
The purchaser claimed a right to insert joists, &c., into the
same to its whole extent, as had been done with the one-
story building then standing. The court held that as a
general principle the use of such a wall was mutual, but
that it must be a reasonable use, and such that neither of the
parties shall thereby inflict substantial injury upon the other,
and that neither had a right to remove it or destroy it, nor
■ appropriate it exclusively to his own use. But that, as in
the terms of the grant in this case, " the present partition
wall " was the subject-matter conveyed, it excluded the idea
of a reservation or grant of the whole wall as being a parti-
tion wall, and therefore the owner of the west lot could only
use it as a party wall to the height of his original building.^
3. In Matts v. Hawkins, where the wall had been built
half upon the land of each land-owner, it was held that
either party had a right to carry up his half of the wall
above that of the half of the other proprietor, if he saw fit.
4. The case of Eno v. Del Vecchio reviews the cases upon
the subject of party walls, and states, in addition to what is
embraced in the above propositions, that so long as the wall
is capable of answering the purposes for which it was erected,
1 Fcttretch v. Leamy, 9 Bosw. 525. ■^ Trice v. McConncll, 27 111. 255.
Sect. 3.] EASEMENT OF PARTY WALLS. 539
the owner of either part may underpin the foundation, sink
it deeper and increase its thickness within the limits of his
own lot, or its length or height, if he can do so without in-
jury to the building on the adjoining lot. But he cannot
interfere witli the wall in any manner, unless he can do so
without injury to the adjoining building, or without the con-
sent of the owner of such building. lie cannot pare off the
part of the wall that stands on his own land, so as to render
the remainder insufficient or unsafe, or excavate under the
part of the wall upon his own premises, to the permanent
injury thereof.^
The ground on which the rights and liabilities of the own-
ers or occupants of party walls rest, are thus stated by the
court of Pennsylvania, in considering the law of that State
upon the subject: "When it (the wall) is constructed, the
regulation of its enjoyment and repair is as plain as that be-
longing to any other property in common." ^
5. In the case of Cubitt v. Porter, Bayley, J. says : " The
jury found it was a party wall. They did not, in terms, find
that it was common property Whore a wall
is * common property, it may happen either that a [*456]
moiety of the land on which it is built may be one
man's, and the other moiety another's, or the land may be-
long to the two persons in undivided moieties." In that
case, one of the parties took down the dividing wall, and re-
built it of a greater height than the former one, and it was
held he was not liable in trespass to the owner of the house
upon tlue other side of the wall, the jury having found it was
a party wall.
Holroyd, J. says : " The presumption arising from the
acts of enjoyment is, that the wall was the property of the
plaintiff and defendant as tenants in common, for the law
will presume that what was done without opposition for a
considerable time was done rightfully, and that these acts
1 See Webster v. Stevens, 5 Duer, 553.
- Evans v. Jayne, 23 Penn. St. 36.
640 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV.
of enjoyment were lawful. That being the case, thefe was
abundant evidence upon the trial to raise a question to go
to the jury, whether the wall was or was not the common
wall of both. There having been a joint use of the wall by
both, each must have had the right, originally, or have
acquired the right, in the course of time, by legal means.
The jury have found, in effect, that it was their common
property." i
6. So, in Wiltshire v. Sidford, the wall in question had
been used by the adjacent owners for near a century, and
the court say : " Where the quantity of land contributed by
each was not known, the reasonable presumption from the
common use of the wall was, prima facie, that the wall and
the land on which it was built were the undivided property
of both." 2
These citations have been made to show the inclination
of the courts to regard the long enjoyment of a wall by the
adjacent owners as evidence of its being not only a party
wall, but one in which there is a common owner-
[*457] ship, * although, for purposes of remedy, and defin-
ing the respective rights of such adjacent owners, it
is always open to be shown that each owns the part of the
wall that stands upon his own land.^
7. In Hart v. Baldwin, the two houses were erected to-
gether with a common wall between them, about fifteen
years before the injury complained of. The defendant dug
a cellar adjoining it, in consequence of which the front wall
of the plaintiff was injured by reason of the party wall being
insufficient. It was held that the defendant, as purchaser
of the estate, was not presumed to know the insufficiency of
the wall, and having used all the requisite care in doing his
work, which would have been sufficient to guard against in-
1 See 3 Kent, Comm. 438.
2 Wiltsliire v. Sidford, 8 Barncw. & C. 259, note.
3 Sec Sherred v. Cisco, 4 Stindf. 480, 490 ; Murly v. M'Dermott, 8 Adolph. &
E. 138.
Sect. 3.] EASEMENT OF PARTY WALLS. 541
jury if the wall had been a sufficient one, he was not liable
for the injury to the adjacent owner's estate.^
8. But it was held, in Bradbee v. Christ's Hospital, that
one owner of a party wall had no right to underpin the
same partially or wholly, unless he can do so without injury
to tlie adjacent messuage, whether the interest in the wall
were several in the owners, one half in each, or they were
tenants in common of the same. The finding in that case
by the arbitrator was, however, that there was carelessness,
negligence, and unskilfulness in the defendant in underpin-
ning the wall partially, and in not underpinning the whole
of the wall, whereby the plaintiff's house sunk and sustained
damage.^
9. But, as it is obvious there may be occasions where
such walls must be repaired or rebuilt, an inquiry arises,
how can one of the parties effectually call upon the
other *to join in such repair or reconstruction ? In [*458]
a case before Kent, Chancellor, the party wall was
between two old houses, and the plaintiff, owner of one of
them, wished to tear his down, and erect a new one in its
place. He gave notice to the other party, and requested him
to join in the reconstruction of the wall ; but he declined to
act, and forbade his pulling down the wall. The plaintiff
then tore down his house and the wall, and erected new ones
on the sites of the former house and wall, and requested the
other owner to contribute his share of the expense of the
wall. The case found that it was a party wall in which both
parties had an equal interest, and that the wall was in a
state of ruin and decay, and that the plaintiff could not re-
build without taking it down. The Chancellor states the
French law to be as follows : " A common or party wall, by
that law, is where it has been built at common expense, or if
1 Hart V. Baldwin, 1 N. Y. Leg. Obs. 139. See Shrieve v. Stokes, 8 B. Monr.
453.
2 Bradbee v. Christ's Hospital, 4 Mann. & G. 714, 761 ; Webster v. Stevens, 5
Duer, 553, 556. See Pardessus, Traite des Servitudes, 265, cd. 1829; Dowling
V. Henimings, 20 Md. 179.
642 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. IV
built by one party, where the other has acquired a common
right to it."
Every wall of separation between two buildings is pre-
sumed to be a common or party wall, if the contrary be
not shown, and this not only is a rule of positive ordinance,
but is a principle of ancient law. If the common wall be
in a state of ruin, and requires to be rebuilt, one party can
compel the other by action to contribute to the expense of
rebuilding it. But the necessity of the reparation must be
established by the judgment of men skilled in the business,
and made on due previous notice ; and if the new wall be
made wider or higher, &c., the party building must bear the
extra expense. And in this case the Chancellor decreed that
the owner of the other estate should contribute his equal
share in the expense of reconstructing the wall.^
[*459] *10. The case of Brondage v. Warner was one
where the owner of a store granted to another the
right of placing the wall for the third story of his house
upon the top of the wall of the grantor's store, and of occu-
pying the end of the store as the end of the house to be
erected by the grantee. The grantee erected his building
accordingly, and enjoyed the use of the wall of the grantor's
store. It was held to be the grant of an easement only, but
to continue either as long as the wall stood, or in fee. And
he was held to have a right to make use of it, although the
rest of the grantor's store had been burned down.^
11. So where the owner of one city lot granted to the
owner of an adjoining lot the use of six inches of his land
for the purpose of erecting a party wall, and covenanted for
himself, his heirs, and assigns, that whenever he should
erect a new building on his lot, he would pay tlie owner of
the other lot, his heirs, or assigns, one half part of the value
1 Campbell v. Mcsier, 4 Johns. Ch. 334 ; 2 Fournel, Traite du Voisinagc, 217,
236 - 242. See Peck v. Day, 1 N. Y. Leg. Obs. 312 ; 3 Kent, Comm. 438 ; Cu-
bitt V. Porter, 8 Barnew. & C. 257 ; Partridge v. Gilbert, 15 N. Y. 601 ; post,
sect. 19.
2 Brondage v. Warner, 2 Hill, 145.
Sect. 3.] EASEMENT OF PARTY WALLS. , 543
of such portion of the wall as he should use, it was held to
be a grant of an easement, that it was an incorporeal here-
ditament, and the covenant connected with it hound, and
was a charge upon, the land.^
12. But where the common or party wall between two
tenements was erected by two tenants for years, it did not
create mutual easements in perpetuity of support by such
wall in favor of the adjacent estates, for the reason that
neither could grant a permanent interest in the land in his
occupation. There would be a right of such easement be-
tween the respective tenants who constructed the wall, but
it would not continue beyond this common term. Nor
would the respective reversioners be bound by such ar-
rangement between their tenants.^
13. How far one of two adjacent owners of premises is
bound to join in building or repairing a party wall
between *the same was fully considered in the case [*460]
of Sherred v. Cisco, where the case above cited of
Campbell v. Mesier is referred to. In that case, the plaintiff
had for many years owned a lot of land in New York, having
a warehouse upon it adjoining another warehouse, from
which it was separated by a brick wall, one half of which
rested on her land, and the other upon the land of the other
owner ; and the beams of each warehouse rested on this
common or party wall. The owner of the other warehouse
died, having mortgaged his estate, and soon after both ware-
houses were consumed by fire, and nothing was left of the
wall but its foundation.
The plaintiff then rebuilt her warehouse, and placed the
wall next the other lot upon its original foundation equally
upon both lots, but without any agreement in respect to its
construction with the other owner. The lot adjoining this
warehouse was sold, and the defendant built a store upon it,
using this wall for one side, and inserting the timbers of the
1 Keteltas v. Penfolcl, 4 E. D. Smith, 122. See also Weyman v. Ringold, 1
Brad. 52, 61.
2 Webster v. Stevens, 5 Duer, 553.
544 TIffi LAW OF EASEMENTS AND SERVITUDES. [Ch. IV,
building in the same. The plaintiff then called on him to
contribute a part of the expense of the wall. But the court
held, that if the original wall had been built by the mutual
agreement and at the joint expense of the proprietors of the
two lots, each would have continued owner of the land on
which the respective parts of it were built, and of course
each owned one half of the wall in severalty. But neither
would have had a right to pull down the wall without the
other's consent, and to that extent the agreement upon
which it was erected controlled the exclusive dominion
which each would otherwise have had over the half of the
wall, as well as over the soil on which it stood. But when
the wall had been destroyed by the elements, there being no
agreement to build a second wall, neither was under obliga-
tion to join with the other in doing so, and the law would
imply no such obligation. By the common law, every man
may build such buildings and in such manner as he pleases
on his own land, nor is he bound to give his ueighbor any
use or advantage of his land for support, drip, or
[*461] by the way *of any easement whatever. And if a
stranger enters upon his unoccupied land, and sees
fit to make erections or improvements on the same, he is not
bound to make compensation therefor upon recovering pos-
session of his premises. When, therefore, the defendant in
this case made use of a wall standing on his own land, he
was not thereby made chargeable for the expense of con-
structing the same.
There is, therefore, a marked distinction between the case
of Campbell v. Mesier and the present, inasmuch as in the
former the wall was a common one, built jointly, or presumed
to have been so built, by both parties, whereas in the present
case, though built upon the land of each proprietor, it was
built wlioUy at the expense of one, and, so far as it stood
upon the other's land, it was built without right.^
1 Shurrcd v. Cisco, 4 Sandf. 480. See Orman v. Day, 5 Florid. 385, 392, af-
firming and sustaining Siierred v. Cisco, upon similar facts. See Partridge v.
Gilbert, 15 N. Y. 601.
Sect 3.] EASEMENT OF PARTY WALLS. 545
14. The case of Partridge v. Gilbert, cited above, is
deserving attention, as one of the judges in that case, Denio,
took occasion to refer to the foregoing cases of Campbell v.
Mesicr, and Sherred v. Cisco. In that case, the two build-
ings, having a common wall between them, were owned and
erected by the same person. This wall rested upon the
crown of an arch, beneath which was a passage-way, the legs
of the arch standing one on one estate and the other upon
the other, the centre line of the wall being the dividing line
of the estates. The estates came by conveyances into two
persons' hands, the centre line of the wall, by the description
in the deeds, being the dividing line of the two. The build-
ings were occupied as stores, one in the possession of a
tenant, the other in that of the owner. The wall being
ruinous and unsafe, the owner of the latter store notified
the tenant of the other store of his intention to take down
and rebuild the wall. The tenant objected, but the owner
proceeded to do so, leaving the tenant's store exposed,
and for this and the injury to his business he sued the
owner of the other store who had taken down the
*wall. Two of the judges of the Court of Appeals [*462]
gave opinions, and all concurred in the judgment.
They held that, the wall being ruinous and unsafe, the
owner of the adjoining store had a right to take it down
and rebuild it, and he might take it all down, for this pur-
pose, unless he could make it safe by taking down and
rebuilding only that part upon his own land. That though
each party owned up to the centre line of the wall, each had
an easement of support of his building upon the wall, which
passed when the owner conveyed them as separate estates,
and that this extended to the support of the legs of the arch,
which stood one upon each parcel of the estate. Shankland,
J. approved of the doctrine of Campbell v. Mesier, that in
such a case the one causing the necessary repairs or restora-
tion of the wall might have a remedy for contribution against
the other party. And that the owner had the same right to
35
546 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV.
rebuild the entire wall as lie had to repair it, if necessary to
its enjoyment. Denio, J. held, that neither party could
have rightfully done anything, though upon his own land,
to weaken this wall, and cites Richards v. Rose.^ " In this
case we hold that the owner of the building occupied by the
plaintiffs was entitled to have it supported by the common
wall, while that wall remained in a condition to uphold it.
.... My view of the rights of these parties is this. Each
had a title to the soil, to the division lijie, which was the
centre of the arch and wall, but this title was qualified by
the easement which each owner had of supporting his build-
ing by means of the common wall. As the half of the wall
standing on the land of the owner would not alone afford the
requisite support, because the whole of the arch and the entire
thickness of the wall was required for that purpose, the law
gave him an interest, in the nature of an easement, in the
part of the wall standing on the land of the other
[*463] party. This right existed as long as the wall *con-
tinued to be sufficient for that purpose, and the
respective buildings remained in a condition to need and to
enjoy that support."
The case of Dowling v. Hemmings was, in many respects,
like that of Partridge v. Gilbert. The dividing wall of two
houses rested upon an arch, the legs of which rested one
upon each of the adjacent lots. It was held, nevertheless,
to be a party wall with all the rights and incidents of such a
wall, after it had stood and been so used and enjoyed for
twenty years or more, and one of the parties having removed
the leg that rested upon his land, the wall fell, and he was
held liable for the injury thereby caused to the other party.^
In respect to the rights of the several parties to rebuild
the wall when it ceased to be sufficient, he refers to the cases
of Campbell v. Mesier, and Sherred v. Cisco, in the latter of
which it was held, that, if the buildings were destroyed by
1 Richards v. Rose, 9 Exch. 218. '
2 Dowling V. llcmmings, 20 Md. 179.
Sect. 3.] EASEMENT OF PARTY WALLS. 547
fire, the parties were remitted to their original, unqualified
title to the division line. " I do not perceive any solid dis-
tinction between a total destruction of the wall and build-
ings, and a state of things which would require the whole to
be rebuilt from tlie foundation. In either case, there is
great force in saying that the mutual easements have become
inapplicable, and that each proprietor may build as he
pleases upon his own land, without any obligation to accom-
modate the other If the right of mutual support
continues, by means of the original arrangement, or by
prescription, it is for just such an easement as was originally
conceded, or which has been established by long enjoyment.
But in the changing condition of our cities and villages it
must often happen, as it did actually happen in this case,
that edifices of different dimensions, and an entirely different
character, would be required. And it might happen, too,
that the views of one of the proprietors as to the value and
extent of the new buildings would essentially differ from
those of the other, and the 'division wall which would suit
one of them would be inapplicable to the objects of the other.
If it were necessary to determine this point in this case, I
should be strongly inclined to adopt the views of the late
Judge Sanford, in delivering the opinion of the Superior
Court in tlie case of Sherred v. Cisco, just cited." ^
The doctrine stated in the above case, that the occupant
of the store who was injured by taking down and
*rebuilding the party wall had no cause of action [*464]
thereby against the other proprietor, is in accordance
with the French law, as stated by Pardessus.^
15. So far as the above cases sustain the doctrine that if
two parties build a common wall between them, and erect
houses on each side of the same, although each may be the
owner of his half thereof in severalty, each has the easement
of support by such wall so long as it stands, which the other
1 Partridge v. Gilbert, 1.5 N. Y. 601.
'^ Pardessus, Traite des Servitudes, 251, ed. 1829.
548 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. IV.
may not weaken or destroy, it is confirmed by the case of
Brown v. Windsor, althongh a cursory reading of that case
might lead to an impression that one may acquire an ease-
ment in another's land by parol, under certain circum-
stances. ^
16. In addition to the foregoing cases, reference may be
had to those cited below, as bearing upon the remedy which
one owner of a party wall may have against the other for an
injury done to the same, or for recompense for expenses
incurred in repairing the same, which are here alluded to,
though not perhaps forming a part of the proper subject of
easements.^
The case of Burlock v. Peck may be referred to also for
another purpose, as illustrating the effect of an agreement
in respect to party walls upon the successive owners of the
respective estates. Peck owned two adjoining city lots, 69
and 71, and sold to H. the former, who was to have " the
privilege of building a party wall twelve inches thick, ex-
tending six inches on each side of the line," the grantor
in the deed agreeing to pay for said wall when used. H.
erected a house on 69, and constructed the wall as above
provided. H. sold to plaintiff's intestate. After this Peck
sold 71 to the same H., who erected a house upon it, and us.ed
this party wall ; and the administrator of the gran-
[*465] tee of lot 69 brought an action to recover the *cost
of half this wall against the administrator of Peck.
The court held that by H.'s deed of Lot 69, the whole of the
party wall passed, although six inches of it stood upon 71,
the whole property in it was in him. When H. built upon
71, he appropriated, as he had a right to do, the wall to his
use, and thereby gave the proprietor of No. 69 a right to
recover for one half the cost of it under the covenant of
Peck, as one running with the land.
17. Connected also with the subject of remedy of one of
1 Brown v. Windsor, 1 Crompt. & J. 20 ; Dowling v. Hcmminp;s, 20 Md. 179.
2 Burlock V. Peck, 2 Duer, 90; Murley v. M'Dcrmott, 8 Adolph. & E. 138.
Sect. 3.] EASEMENT OF PARTY WALLS. 649
two owners of party walls against the other for acts injuri-
ously affecting the same, may be cited the case of Phillips
V. Boardman, which, related to two estates adjoining each
other, upon Washington Street, in Boston, between which
there was an ancient party wall twelve inches thick, used for
supporting the timbers of the respective houses. The owner
of one having taken down his, and being about to erect a
new building on the site of the old one, pared off four inches
from the old wall with a view to erect a new wall distinct
from the old one, twelve inches in thickness, occupying eight
inches upon his own land, and the four inches of the old
wall thus pared off. He had begun to erect such wall, oc-
casionally extending his bricks two inches beyond the same,
so as to extend to the centre of the old wall, partly to aid in
the support of the new and partly to indicate the extent of
the limits of his line, and to prevent the owner of the re-
mainder of the wall, if he took it down, ever joining it upon
his new wall. The adjacent owner applied for an injunction
to his erecting such wall. It was shown that the wall was
an ancient one, sufficient for such buildings as stood upon
the street, and that paring off four inches would essen-
tially impair its strength, and that the new wall would not
afford any material aid or strength to the old one. The
court granted the injunction, because it being an ancient
party wall, both parties were jointly interested in it, and
neither of them can so deal with it as to diminish
its capacity for service, * without the consent of the [*466J
other ; and if such new wall were enjoyed for twenty
years, the right to enjoy the whole wall as a party one would
be lost to the complainant.^
18. There were rules in the civil law, as there are in the
French code, the statutes of England, and in Pennsylvania,
regulating the rights of parties in respect to party walls be-
tween their estates, and the remedies to which either may
resort for compensation for their erection or repair, or for
1 Phillips V. Boardman, 4 Allen, 147.
550 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV.
injury done them. But these partake so much of a strictly
local character, that, with the exception of the system in
force in France, they are purposely omitted here.^
The rule of the civil law, whereby one may acquire by
grant or prescription the right of having the beams of his
house rest upon the wall of another house, though such wall
is wholly built upon the land of the owner of the wall, has
already been mentioned, and, as it would seem, the same
easement may be gained at common law by long enjoy-
ment.^
19. The cases, both in the English and American courts,
have been so few in which the rights of parties in respect to
party walls have been considered, that I have been induced
by the importance of the subject to depart from the general
rule adopted in reference to this work, and borrow somewhat
freely from the French law, as throwing light upon some
points not yet adjudicated upon by the common-law courts.
But it should be remembered that, while, both by the civil
and common law, if a structure becomes one answering to
tlie character of a party wall, it must be made so by
[*467] the * agreement, actual or presumed, of the parties
to that effect ; in France such agreement is not
requisite. On the contrary, if one build the wall of his house
upon the verge of his land, and his neighbor has occasion to
build a house adjoining it, he may make use of this wall for
the purpose, if of suitable dimensions, by reimbursing to the
owner a fair ratable proportion of the value thereof, and of
the land it occupies, so far as he uses the same. This is so
in the cities, and is a rule based upon what is supposed to be
a wise public policy. Nor will the age of the wall make any
1 Code Nap., Arts. 6.55 - 661 ; Ayl. Pand. 309 ; Sherred v. Cisco, 4 Sandf. 4S0^
491 ; Dunlop, Laws of Penn. ed. 1847, c. 31, p. 39, Act of 1721 ; Purdon's Dig.
984, 985 ; Building Acts, 7 & 8 Vict. c. 84, §§ 20-27. See Woolr. Party Walls,
passim ; Evans v. Jane, 23 Penn. St. 34 ; Davids v. Harris, 9 Penn. St. 501. See
3 Kent, Comm. 438, note ; post, sect. 19 ; La. Civ. Code, Art. 671 ; Graihle v.
liown, 1 La. Ann. 140. See as to Iowa, 3 Clark, 391.
- Ayl. Pand. 309 ; D. 8, 2, 36 ; Ibid. 8, 5, 14 ; 3 Kent, Comm. 437 ; 3 Burge,
Col. & F. Law, 402 ; Ersk. Inst. B. 2, tit. 9, § 8.
Sect. 3.] EASEMENT OF PARTY WALLS. 551
difference, since prescription docs not accrue against this
right. The converse of the proposition, however, is not
true, since the owner of the wall cannot compel the adja-
cent owner of land to become a joint owner in the struc-
ture.^
The proposition is broadly laid down in the Digest, that,
where there is a party wall between two adjoining estates,
neither party has a right to demolish or rebuild it at his
pleasure, because he is not the sole owner or master of the
structure.^
And whenever a house or estate is sold, whatever service
belongs to it belongs to the alienee.^
In France, party walls, murs mitoyens, take their name
from the combination of moi and toi, and include walls en-
closing gardens and the like in cities and villages, as well as
those between adjoining houses.*
In the erection of such walls, they should rest in equal
parts upon the land of each owner, and there are sundry
rules laid down in the Code and writers upon the subject for
determining what walls come within this category.^
TouUier, in his Droit Civil Franqais, draws a plain
*distinction between a party wall, mur mitopen, and [*468]
one in common, mur commun. In the latter, each
party owns in each and every part of the wall, and neither
can designate the part that belongs to him. Whereas, in the
other, though constructed at a common expense, it stands
upon land of which there is a several ownership, and the
part that belongs to each may be defined by the line sepa-
rating their lands. Nevertheless, as both parts are insepara-
ble by the nature of their use, and form a seemingly entire
thing, the wall in general terms is said to be common between
the two neighbors.^
1 5 Duranton, Cours de Droit, Fran9ai,s, 342 ; 3 Toullier, Droit Civil Fran-
^ais, 134, 136; Inst. 2, 3, 4.
- D. 8, 2, 8. 3 J) 8, 4, 12.
* Pardessus, Traite des Servitudes, cd. 1829, 217, 219, 221, 237.
s Ibid. 222, 238, 239, 242 ; Code Nap., Art. 654.
6 3 Toullier, Droit Civil Franfais, ed. 1824, 126.
552 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV.
Where a wall is party by agreement of the proprietors,
their respective liabilities in regard to the same are regulated
by the terms of their agreement. But, if no such agreement
appears, the law presumes their rights and liabilities to be
equal. This co-proprietorship creates, between those to
whom it belongs, the same obligation as the law imposes
upon all joint owners of property. Each is bound to watch
over its safety and preservation with the same diligence as if
the wall belonged to himself alone, and, moreover, he should
personally avoid doing anything to damage or impair it.
And each proprietor has a right of action against the other,
to compel him to repair in whatever respect he may have
wasted or impaired it.^
Tlie Code Napoleon ^ provides, that the repairs and rebuild-
ing of party walls are at the charge of all those who have a
right in them, and in proportion to the right of each. This
applies to cases where the wall is out of repair by reason of
age or accident, which is not caused by the default of one of
the proprietors. But it is not necessary that it
[*469] *should be in ruins in order that one co-proprietor
may compel another to join in its repair or recon-
struction. It is enough that such repairs are apparently
necessary ; and if the parties do not agree upon the point of
the repair being necessary, it becomes a question to be sub-
mitted to the judgment of experts, in a mode provided by
law. Sometimes it is only necessary to reconstruct the wall
partially, as where it leans from a perpendicular, or its
materials are found to want sufficient cement or solidity
in the upper part of it alone. In such cases a total re-
construction ought not to be required, and should only
extend so far as the same is necessary. If the defect be in
the lower part of the wall, it should be supplied by newly
underpinning it.
1 Pardessus, Traite dcs Servitudes, 248 ; 3 Toullier, Droit Civil FraiKjais,
128, 147.
2 Code Nivp., Art. 655 ; Pardessus, Traite? des Servitudes, 249, 250, 251 ;
5 Duranton Cours de Droit Franvais, 327, 328, 370, 371 ; 3 Toullier, Droit
Civil Franrais, 145, 147, 148.
Sect. 3.] EASEMENT OF PARTY WALLS. 553
In doing these, each proprietor should share equally in the
inconveniences arising from the passage of the workman and
the placing of their materials while doing the work, as well
as in the expenses thereby occasioned. But, so far as it is
necessary to remove anything, or place props and supports
while executing the work, each party is to bear whatever
part of this may particularly concern himself; and if either
party has paintings or other ornaments upon his side of the
wall which arc thereby injured, he alone is to bear the loss,
since he has to ascribe to his own imprudence the placing of
ornaments upon a wall which the law has made a party one,
and subject to be rebuilt.
So if one has a place of public amusement adjoining such
wall, to which the public resort, and the same is a source of
profit to him, and during the progress of such reconstruction
he is deprived of this source of profit, he is without recom-
pense or indemnity. It is one of the inconveniences inci-
dent to the nature of the property.
A different rule would be applied if the wall were taken
down in order to favor a private enterprise of one of the pro-
prietors. He must not only incur the whole expense of the
work and its reconstruction, but must pay to his co-proprie-
tor the damages thereby occasioned to him. If it is
not *of sufficient thickness or of suitable material to [*470]
serve the purposes for which it was erected, the ex-
pense of making it such and supplying the materials is a
charge upon both parties. But, if it is made higher or
thicker for the accommodation of one only of the proprie-
tors, he must sustain the whole expense of this change.^
Either proprietor may raise the wall if he has occasion,
though the other has not, provided it be of sufficient width
and strength to sustain the addition. But, if it is not, the
one desiring to raise it must make it competent and safe for
such increase at his own expense, unless the wall at the time
1 Pardessus, Traite des Servitudes, 251, 252 ; 3 Toullier, Droit Civil Franc;ais,
144 ; Evans v. Jayne, 23 Penn. St. 36 ; 3 Kent, Coram. 437.
654 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. IV.
be ill such a condition as requires a present reconstruction.
In the latter contingency the other proprietor may be held
to contribute towards its reconstruction so far as to render it
suitable for the purposes for which it was originally erected,
if no increase were to be made in its height. If cither wishes
the wall to be made wider than its original thickness, he
must make use of his own land for the purpose. But
though thus widened, it still remains an entire party wall.
But unless such entire reconstruction be necessary, neither
proprietor can cause it to be made against the consent of the
other, even at his own expense, since such an operation al-
ways brings with it great inconvenience to the other party,
for which he can recover no recompense.^
A like rule prevails in respect to building the wall deeper
as in raising it higher. Either may do it, if he have occa-
sion, by using like precautions in constructing the under-
work of the wall not to injure his neighbor. He must so
dig and build the under part of the wall, in respect to its
solidity and strength, that the common wall above it shall
not be endangered thereby ; nor can he call upon
[*471] the other *party for indemnity for the expense of
supporting the part which he has thus constructed.
The part thus added belongs to him, and is to be repaired
by him at his own sole expense.^
So far as either proprietor shall raise the wall above its
original height, it will be for him to keep it in repair, at his
own proper charge, unless the other party shall see fit to use
it for the support of a building on his side. In that event
it all becomes a party wall, and the latter must pay his share
of its cost, together with that of the value of the land occu-
pied, if it shall have been also widened, calculated upon cer-
tain prescribed principles of computation.
1 Code Nap., Art. G59 ; Pardessus, Traite des Servitudes, 262, 263, 264 ; 5
Duranton, Cours de Droit Fran^ais, 368, 369 ; 3 TouUicr, Droit Civil Fran9ai,s,
140, 142.
2 Pardessus, Traite des Servitudes, 265 ; 3 Toullier, Droit Civil Fran^ais, 135.
Sect. 3.] EASEMENT OF PARTY WALLS. 555
The law also provides for settling questions between the
parties, if the owner of the wall shall undertake to object
to the adjacent owner availing himself of the benefit of it.
And also for the judgment of experts, as to the mode and
extent to which the owners upon one side and the other
of party walls may use them in case of disputes between
them.i
When a party wall between two houses has been rebuilt,
all the servitudes belonging to the former one revive and
continue in respect to the new wall or new house.^
Each proprietor may use the wall for the purposes for
which it was erected and designed by the nature of its con-
struction. This, however, is limited in its degree by what
shall be for the interest of the other proprietor, so as not to
deprive him of his equal rights. It is in a measure regu-
lated by the Code, Art. 662, which prohibits either from
making any recess in a party wall. And Pardessus consid-
ers this as preventing the construction of a safe, a
niche, * a pipe, or a chimney flue in such a wall. [*472]
But it does not prohibit making openings into the
wall for supporting beams and joists, and the depth to which
this may be done is fixed by law. So stones or bars of iron
intended for strengthening or supporting the wall may be
inserted into it.-^
Either of the co-proprietors of a party wall may at any
time discharge himself from liability to repair or rebuild it,
provided he has not any building resting upon or supported
by such wall, if he will abandon his right of property in the
use of the same, and of the land on which it stands. It is
not enough that he abandons the wall, he must abandon the
1 Code Nap., Arts. 660, 662 ; Pardessus, Traite' des Servitudes, 266, 267, 268 ;
5 Duranton, Cours de Droit Fran^als, 377, 379 ; 3 Toullier, Droit Civil Fraa-
9ais, 140, 142.
2 5 Duranton, Cours de Droit Fran^ais, 382 ; 3 Toullier, Droit Civil Fran^ais,
522,
8 Pardessus, Traitd des Servitudes, 256, 257, 258 ; 5 Duranton, Cours de Droit
Fran9ais, 3G7, 379 ; 3 Toullier, Droit Civil Franyais, 138.
556 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV.
land also.i But he will not, by such abandonment, exoner-
ate himself from responsibility on account of acts which he
or those in his employ may have previously done to the wall.
This is provided for by the Code, Art. 656, which is in these
words : " Every joint owner of a party wall may exempt
himself from contributing to its reparation and rebuilding
by abandoning his right of partyship, provided such party
wall does not support any building belonging to him."
On the other hand, the proprietor to whom the abandon-
ment is made shall not be at liberty to suffer the wall to go
to ruin in order to enjoy the benefit of the land and the ma-
terials of the wall, half of which still belong to the other
proprietor. The consequence is, that, if he abandon the
use of the wall as a structure, the former co-proprietor
may reclaim his land and his share of the materials of the
wall. 2
If one proprietor suffers the other to exercise exclusive
control over the wall, as sole owner thereof, for thirty years,
it will lose the character of a party wall by prescription.^
20. The principle upon which the laws of Penn-
[*47o] sylvania, * in respect to party walls in the city of
Philadelphia, are based, is so nearly in accordance
with the doctrine of the French law above stated, that it is
referred to again for purposes of illustration. The statute
provides for party walls between two estates being set out
and regulated as to their thickness by surveyors, and that
the foundations of these shall be laid equally upon the lands
of the persons between whom such party wall is made ; " and
the first builders shall be reimbursed one moiety of the
charge of such party wall, or for so much thereof as the
next builder shall have occasion to make use of, before such
next builder shall any ways use or break into the said wall,
the charge or value thereof to be set by the said regulators."
1 Le Page Desf,'0(Jets, 56, .57.
2 Pardessus, Trailo des Servitudes, 2,'')3, 254, 255 ; 5 Duranton, Cours, &c.,
328, .341 ; 3 Toullier, Droit, &c., 149, 150, 151.
^ Merlin, Repertoire dc Jurisprudence, tit. Mitoyennete.
Sect. 3.]! EASEMENT OF PARTY WALLS. . 557
•
Provision is also made for having a survey made of any party
wall against which one is about to build, to determine as to
its sufliciency, with authority on the part of the regulators
to direct the removal of any such wall if insufficient, and to
regulate the width of the same, and no such wall may be
less than nine inches in thickness.
A question arose under this law, in which Evans and
Watson, having a party wall between their estate and that
of Jayne, who was about to erect a store adjoining it,
were notified to remove it by the regulators because of its
insufficiency. From this order they appealed. The court
say : " There can be no available objection to the principle
upon which our law as to party walls is based. The law as
to partition fences involves the same principle. It has con-
stituted part of the law of France for ages, and is fully car-
ried out in the Code Napoleon." The court then cite Ar-
ticle 659 : " The principle is no invasion of the absolute
right of property, for that absolute involves a relative, in
that it implies the right of each adjoiner, as against the
other, to insist on a separation by a boundary more substan-
tial than a mathematical line. This imaginary line is com-
mon, and so ought the real one to be, and it is only in the
character of this that the difficulty lies which requires
*legislation. And there is nothing more severe in [*474]
submitting the question of the sufficiency of walls in
a city to the city surveyor, than there is submitting the suffi-
ciency of fences in the country to fence-viewers." And the
appeal was accordingly disallowed.^ They have in Iowa a
law similar to that of Philadelphia, by which one of two ad-
jacent owners is at liberty to place half the wall of his house
upon the land of the adjacent owner, and when the latter
comes to build upon his lot, he may use this as a party wall
for supporting the timbers, &c., of his house, upon paying
one half the value of the wall.^
1 Purdon, Di";. 634, § 2, 11, 15 ; Evans v. Jayne, 23 Penn. St. 34 ; Ingles v.
Bringhurst, 1 DalL 341 ; 2 Bouv. Inst. 178.
2 Zugenbuhler v. Gillim, 3 Iowa, 392.
558 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV.
SECTION IV.
EASEMENT OF SUPPORT OF SUBJACENT LAND.
1. Two freeholds in case of mines, surface and subjacent.
2. Right of support of upper freehold, one of property.
•3. Analogy between support of adjacent and subjacent land.
4. Humphries v. Brogden. How mines must be worked.
5. Harris v. Ryding. What rights reserved with mines.
6. Where cause of action begins for impairing support.
7. Rowbotham v. Wilson. Effect of reserve of mines on support.
8. Support of houses gained by prescription against mines.
9. Rule as to surface support applies to public works.
1. There remains to be considered, as coming properly
in connection with the doctrine of the support laterally of
the soil or buildings of one man by those of another, how
far the owner of the surface soil of the earth has a right to
insist upon a support from beneath of his soil or buildings,
as against excavations by the owner of the minerals below
it in extracting the same. Numerous cases have arisen,
of late, in the English courts, where such excavations have
caused the surface of the earth to subside, and in some cases
causing injury or destruction to buildings standing thereon.
These questions have arisen from what is now familiar
law, that there may be two freeholds in the same body of
earth measured superficially and perpendicularly down to-
wards the centre of the earth, to which, theoretically, the
unlimited ownership of the soil extends, viz. a free-
[*475] hold in *the superficial soil, and enough of that lying
beneath it to support it, and a freehold in the mines
underneath this, with a right of access to work the same, and
extract the minerals there found. ^
2. To this extent, the right of having the soil supported
from below is a natural one, or, more properly, an incident
to the ownership of the soil.^ And in some cases the owner
1 Wilkinson v. Proud, 11 Mecs. & W. 33 ; Eowbotham v. Wilson, 8 Ellis &B.
123, 142 ; Zinc Co. v. Franklinite Co., 13 N. J. 341, 342.
'-' Rowbotham v. Wilson, 8 Ellis & B. 123, 152.
Sect. 4.] EASEMENT OF SUPPORT OF SUBJACENT LAND. 559
of sucli soil has a right of easement of support of buildings or
other structures creating additional burdens thcrQon. Some
of the cases involving these questions will be found below,
and are referred to for purposes of illustration of the rules
applicable in such cases.
3. It will be found that much aid may be derived in
settling questions of the right of support against excavations
for mining purposes from their analogy with the rules al-
ready stated in respect to the right of lateral support of soil
and buildings.^
4. The case of Humphries v. Brogden, decided in 1850,
has become a leading one upon this subject. It was for an
injury to the plaintiff's soil by the defendants so working
their mine beneath it as to cause it to settle and sink down.
It was not found that the defendants had worked their mines
carelessly, but, on the contrary, had done so carefully, ac-
cording to the custom of the country. But they had failed
to leave sufficient pillars and props to prevent the plaintiff's
land from settling.
The Chief Justice, Campbell, refers to the cases above
mentioned, relating to the lateral support of the soil of one
man by that of another, and says: '■^Pari ratione, where
there are separate freeholds, from the surface of the land and
the minerals belonging to different owners, we are of opin-
ion that the owner of the surface, while unencum-
*bered by buildings, and in its natural state, is en- [*476]
titled to have it supported by the subjacent mineral
strata. Those strata may of course be removed by the
owner of them, so that a sufficient support for the surface is
left. But if the surface subsides, and is injured by the re-
moval of these strata, although, on the supposition tbat the
surface and the minerals belong to the same owner, the
operation may not have been conducted negligently, nor con-
trary to the custom of the country, the owner of the surface
may maintain an action against the owner of the minerals
1 See ante, sect. 1.
560 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. IV.
for the damage sustained by the subsidence." He refers to
the case of Harris v. Ryding,^ and adds : " It seems to have
been the unanimous opinion of the court, that there existed
the natural easement of support for the upper soil from the
soil beneath." It was held that the plaintiff was entitled to
recover.
5. The case of Harris v. Ryding was decided in 1839. In
that, the grantor of the mines sold the surface to the person
under whom the plaintiff claimed, and in his deed reserved
the mines with liberty to get them. Lord Abinger, C. B.
says, that, if the owner had granted the surface, reserving
the mines merely, he would have had no access through
the surface, but must have reached them through other
adits. And when he reserved the right of access, he did not
thereby reserve the right to dig so as to destroy the surface,
or to do anything in a manner unusual and improper, so as
to prejudice the surface of the land. And as the case found
that the defendant did not have sufficient support for the
surface, the Chief Baron held that he was liable for the dam-
age thereby occasioned. There were buildings, in this case,
standing upon the surface, and one count in the
[*477] declaration was for injury to these. But *the case
turned wholly upon the point, in which all the court
agreed, that, inasmuch as the defendants so worked their
mines as not to leave a reasonable support for the surface,
they were liable for the damages thereby occasioned.^
6. "Where there has been a wrongful act of withdrawing
the surface support by improper excavations for minerals,
the surface owner is not obliged to wait until his land or
1 Humphries v. Brogden, 12 Q. B. 739; Harris v. Ryding, 5 Mees. & "W. 60.
See Smart v. Morton, 5 Ellis & B. 30 5 per Crowder, J., Kowbotham v. Wilson,
8 Ellis & B. 154; per Coleridge, J., Bonomi v. Backhouse, Ellis, B. & E. 622,
639 ; Roberts v. Haines, 6 Ellis & B. 643 ; s. c, 7 Ellis & B. 625. See Dugdale
V. Robertson, 3 Kay & John. 699.
^ See Smart v. Morton, 5 Ellis «& B. 30, 46, confirming the doctrine of the
above cases. Rowbolham c. Wilson, 6 Ellis &. B 593, 602 ; Zinc Co. v. Frauk-
linite Co. 13 N. J. 342.
Sect. 4.] EASEMENT OF SUPPORT OF SUBJACENT LAND. 5G1
buildings shall have actually cracked or subsided. Tlie act
is a violation of his right, and he may, in an action therefor,
recover full compensation, including the probable damage to
the fabric, and the Statute of Limitations begins to run from
the time of such act done.^
7. In Rowbotham v. Wilson, Campbell, C. J. held, that
though, in the absence of an express grant to that effect, the
owiier of minerals has no right so to work his mines as to
withdraw the reasonable support re(i[uired for the surface,
yet the owner of both may so grant the surface as to secure
to the owner of the mines a right to excavate the same,
though by so doing he do not leave a sufficient support for
the surface. Nor would the right of the surface owner, in
this respect, be changed by his erecting thereon dwelling-
houses which would be injured by such excavation, and that
successive owners of the estate would be bound by the grant
and its limitations.^
So where an enclosure act prohibited working a mine
within a certain distance from buildings, the owner of the
mine was held liable for injury done to buildings occasioned
by working his mine, although he neither exceeded the limits
of the act, nor worked his mine without using ordinary care
in so doing. Neither excused him for failing to leave a
sufficient support for the surface, a right to which is incident
to the ownership thereof.'^
The case came up again before the Exchequer Chamber in
1857. Watson, B. was of opinion " that the agreement or
grant by which the owner of the mines was to be at liberty
to work them without leaving a reasonable support was in
effect a covenant not to sue on the part of the surface
owner, and that this would not run with the *land, [*478]
that such a right was not the subject-matter of a
1 Nicklin v. Williams, 10 Exch. 259 ; Bonomi v. Backhouse, Ellis, B. & E.
622, 646 ; Wightman, J., contra, p. 637 ; 10 Law M. & K. 182 ; ante, p. *100.
2 Rowbotham v. Wilson, 6 Ellis & B. 593.
3 Haines v. Roberts, 7 E. & Black. 625.
36
562 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV.
grant, since, to be the subject-matter of a grant, it must be
an easement to be imposed on the corporeal property of the
grantor." He was therefore of opinion, that the plaintiff
ought to recover.
Bramwell, B. was of opinion that the claim here made by
the surface owner of a right of support of his premises was
not that of an easement, because an easement is something
additional to the ordinary rights of property. But he held
that this right of support was something that he could convey
away to the owner of the mines below, and, if he took his es-
tate with such a right in the mine-owner below, he took it on
the terms of its creation, and was bound thereby. He there-
fore was for confirming the judgment in the King's Bench.
Martin, B. was of opinion that the owner of land may
grant the surface, subject to the quality or incident that he
shall be at liberty to work the mine underneath, and not be
responsible for any subsidence of the surface, and was there-
fore in favor of affirming the former judgment. Williams,
J. was of the same opinion. Crowder, J. was of the same
opinion. He admitted that a covenant not to sue would not
run with land, but that the owner of land might release
an easement or a right incident to an estate, and it would be
binding upon those to whom that estate comes, and that here
the owner of the surface took it subject to the same limited
right of support as the original grantee under whom he held.
Cresswell, J. was of opinion that the judgment should be
reversed, regarding the matter as a covenant on the part of
the surface owner not to sue for an injury to his own
property, and not a release of any easement or other right
in the"* mines, or a grant of any interest in the land of the
mine-owner, or a license to cause an injury to the surface,
which would be personal to the licensee, and not grantable
over. But the judgment of the King's Bench was
[*479] affirmed. *And when the case came before the
House of Lords it was again confirmed. ^
1 Rowbotluiin V. Wilson, 8 H. of L. Cas. 248.
Sect. 4.] EASEMENT OF SUPPORT OF SUBJACENT LAND. 563
8. In Bonomi v. Backhouse, which was for an alleged in-
jury to plaintiff's house and land by the working of defend-
ant's mines, the house was an ancient one, and the judge,
Wightman, remarked, " Where ancient buildings are stand-
ing upon the plaintiff's land, the defendant must take care
not to use his own land in such manner as to injure them." ^
And after an enjoyment of the support of the natural soil
for a dwelling-house for twenty years, a mine-owner may
not so work his mine as to injure the foundations thereof.^
But if a house, though a modern one, be injured by a sub-
sidence of the soil on which it stands, occasioned by excava-
tions for minerals, he may, nevertheless, recover the dam-
ages thereby occasioned, unless the house was the cause of
the subsidence.^
But if the owner of a house sues for an injury to the
same, by weakening the support thereof, by excavating for
minerals below it, he must state in his declaration the
grounds upon which he is entitled to have his house sup-
ported by the land above the mines ; and unless these are so
stated, he will fail in his action.*
9. In Northeastern Railway Co. v. Elliot, the court held
that the doctrine that the owner of a mine may not work it
so as to take away the reasonable natural support of the
surface, applies in cases where public works like a railway
are constructed over it, and it is immaterial whether such
company purchase, or take the land under its act of incor-
poration. But if such mine happened to be full of water
when the road was constructed, whereby the surface was
supported, as well as by props and ribs of coal left in the
mines, the company could not complain that such water
was afterwards pumped out, and the surface support thereby
weakened, inasmuch as it was, from its nature, a mere tem-
1 Bonomi v. Backhouse, Ellis, B. & E. 622, 836. See also Rowbotham r. Wil-
son, 8 H. of L. Cas. 348, 365, 367.
2 Rogers v. Taylor, 2 Hiirlst. & N. 828 ; Partridge v. Scott, 3 Mees. & W. 220.
3 Strayan v. Knowles, 6 II. & Norm. 465 ; Brown v. Robins, 4 H. & Norm. 186.
* Hilton V. Whitehead, 12 Q. B. 734.
564 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV.
porary condition of the property. ^ Where one worked a
mine in another's land, the shaft by which he reached it
opening in a field in which tlie owner was accustomed to
keep his cattle, the occupant of the mine was bound to keep
the outlet of such shaft safely fenced so as to prevent the cat-
tle, rightfully there, from falling into the shaft.^
[*480] ^SECTION V.
EASEMENT OF SUPPORT OF PARTS OF THE SA5IE HOUSE.
1. Separate freeholds may be had in the different parts of a house.
2. One owner may not impair the support of the part of another.
3 How far owners are to contribute towards repairs.
4. Owners in common contribute towards repairs. Doane v. Badger.
5. How far owners of one story contribute to support another.
6. Remedy in equity of the owner of one story against the owner of another.
7. Law of Scotland as to support of different stories.
8. Laws of France on same subject.
9. Laws of France as to houses falling by decay.
10. How one estate may protect itself from a privy on another.
1. While the law is well settled, that there may be sepa-
rate owners in freehold or inheritance of different parts of
the same house, even though one of these be a single cham-
ber therein,^ the common law seems to be singularly defi-
cient in definite rules in respect to the rights and obligations
of the several owners, as to the extent and mode of using
the parts of one tenement for the benefit of another, or how
far the owner of either part is bound to repair the same, or
to contribute to the repairs of other parts.
2. There are definite rules upon this subject in the Scotch
and French laws which it is proposed to notice briefly, after
considering how far the common law furnishes a guide in
determining the rights of the respective parties.
1 Northeastern R. W. Co. v. Elliot, 1 Johns. & II. 14.5.
2 Williams v. Groncott, 4 B. & Smith, 149.
8 Co. Litt. 48 b ; 1 Washb. Ileal Prop. 4 ; Rhodes v. M'Cormick, 4 Iowa, 375.
Sect. G.] EASEMENT OF SUPPORT OF PARTS OF A HOUSE. 565
It is well settled, in the first place, tliat where there are
different storie* to the same house, each belonging to differ-
ent owners, neither can do anything within his own story
which shall impair the safety or enjoyment of that of the
other owners. Thus it is said by Lord Campbell : " The
books of reports abound with decisions restraining a man's
acts upon and with his own property, where the necessary or
probable consequence of such acts is to do damage to others.
The case of common occurrence is where the upper
*story of a house belongs to one man, and the lower [*481]
to another. The owner of the upper story, without
any express grant or enjoyment for any given time, has a
right to the support of the lower story If," he adds,
*' the owner of an entire house conveying away the lower
story only, is, without any express reservation, entitled to the
support of the lower story for the benefit of the upper story,"
&c., assuming this postulate as an undoubted rule of law, to
which he refers for purposes of illustration. ^
In the case last cited, Campbell, C. J. says : " If the
owner of a house were to convey it to another by deed, re-
serving a lower story to himself, whatever powers he re-
served for the enjoyment of this story, unless the right of
support is renounced by the grantee of the superior stories,
these powers must be considered as only meant to be exer-
cised subject to this right being respected."
In Harris v. Ryding, which was a case involving the rights
of surface owners as against the operations of subjacent mine-
owners, Maule, J. says : " That right appears to me to be
very analogous to that of a person having a room in a house
over another man's room ; yet his rights over his exclusive
property are not unlimited, but are limited by the duty of
so using it as not to do any damage to the property of an-
other person." ^
1 Humphries i\ Urogden, 12 Q. B. 739, 747. See also Smart v. Morton, 5
Ellis & B. 30, 47.
2 Harris v. Ryding, 5 Mees. & W. 60, 76 ; Rhodes v. M'Cormick, 4 Iowa, 376.
5GQ THE LAW OF EASEMENTS AND SERVITUDES. [Cii. IV.
In the case last cited, Parke, B. sa/s : " It is very like
the case of the grant of an upper room in a house with the
reservation by the grantor of a lower room, he undertaking
to do nothing which will derogate from the right to occupy
the upper room ; and if he were to remove the support of
the upper room, ho would be liable in an action of covenant,
for a grantor is not entitled to defeat his own act by taking
away the underpinnings from the upper room."
[*482] *3. Neither of the above cases, however, reaches
the question, how far the owner of one part is bound
to contribute towards the repair or maintenance of any other
part of tlie structure. If the notion of the French law is to
be applied, so far as the walls or any other part of the house
are necessary for the common benefit of the whole structure,
they are to be considered in the nature of party ivalls, and
each owner must contribute or aid in their support and re-
pair. And this seems to be sustained by Kent, Cli., in
Campbell v. Mesier.^ •
4. The same principle was applied in the case of Doane v.
Badger, where the subject-matter of common property was a
jDump which was out of repair ; and in illustrating the doc-
trine, the court refer to the case of a house : " If the two
co-tenants tacitly agree or permit the house or its appurte-
nances to go to decay, neither can complain of the other
until after a request and refusal to join in making repairs,"
clearly assuming, that if one joint owner of common property,
after notice and demand of the other, cause necessary re-
pairs to be made upon the same, he may have his remedy by
action for his reimbursement. ^
5. The point was incidentally discussed in Loring v.
Bacon, where the plaintiff, who owned the upper story of a
house, the roof of wliich required repairs, caused the same to
be made, and then brought an action of indebitatus assumpsit
for contribution against the defendant, who owned the lower
1 Ciim|il)ell v. Mcsicr, 4 Johns. Cli. 334.
2 Doaiio V. Badger, 12 Mass. 65, 70.
Sect. 5.] EASEMENT OF SUPPORT OF PARTS OF A HOUSE. 567
story and collar of the house. In giving an opinion in the
case, the judge, Parsons, refers to a case from Keilwey,^
where two of the judges were of opinion, that, if a man have
a hoiise underneath, and another have a house over it,
the owner of the first house may compel the other to pre-
serve the tirahers of the house underneath ; and so may the
owner of the house above compel the other to repair the
timbers of his house below, and this by an action on
the *case. But it 'is said: " Some of the bar were [*483]
of opinion that the owner of the house underneath
might suffer it to fall ; and yet all agreed that he could not
pull it down to destroy the house above." And in Tenant
V. Gold\vin,2 Lord Holt doubted the law of the above case.
The judge then proceeds : " But there, is unquestionably,
a writ at common law, de domo reparanda,^ in which A. is
commanded to repair a certain house of his in N., which is
in danger of falling, to the nuisance of the freehold of B.,
and which A. ought, and hath been used, to repair. This
writ, Pitzherbert says, lies, when a man who has a house ad-
joining to the house of his neighbor suffers his house to lie
in decay to the annoyance of his neighbor's house. And if
the plaintiff recover he shall have his damages, and it shall
be awarded that the defendant repair, &c And there
appears no reasonable cause of distinction in the cases,
whether a house adjoin to another on one side or above or
underneath it."
He then goes on to show why, if the case in Keilwey is
law, the plaintiff in the case under consideration could not
recover. And adds : " If the case in Keilwey is not law,
then, upon analogy to the writ at common law, the plaintiff
cannot compel the defendant to contribute to his expenses in
repairing his own house. But, if his house be considered as
adjoining to hers (the plaintiff's), she might have sued an
1 Keilwey, 98 b, pi. 4.
- Tenant v. Goldwin, 6 Mod. 311 ; s. c, 2 Ld. Rajm. 1089, 1093.
8 Fitzh. N. B. 296.
568 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. IV.
action pf tlic case against him if lie had suffered his house
to remain in decay to the annoyance of her house
We do not now decide on the authority due to the case in
Keilwey, but, if an action on tlie case should come before us
founded on that report, it will deserve a further and full
consideration." ^
6. The reasoning of the court in the above case of Loring
V. Bacon, goes to sustain a liability of one part-owner
[*484] of a * house to the other for neglecting to keep his
own part in repair. But in Cheeseborough v. Green, ^
the court of Connecticut insisted that no action at law could
be maintained by the owner of a lower story of a house
against the owner of the upper one for neglecting to keep
the roof of the same in repair, the only remedy being in
equity. They also refer to the cases above cited from Keil-
wey, and Modern Reports, and seem to assume the law to
be settled, that, for such neglect to repair the roof by the
owner of the upper story, the owner of a lower one might
have a complete remedy in equity.
To the above cases may be added one from a later volume
of Modern' Reports, quantum valebat, where it is said : " If
a man has an upper room, an action lies against him by one
that has an under room, to compel him to repair his roof;
and so, where a man has a ground room, they over him may
have an action to compel him to keep up and maintain his
foundation."''^
In giving the opinion of the court in a case in New York,
the Judge, Rosekrans, uses this language : " The rule seems
to be settled in England, that, where a house is divided into
different floors or stories, each occupied by different owners,
the proprietor of the ground floor is bound, by the nature
and condition of his property, without any servitude, not
only to bear the weight of the upper story, but to repair his
1 Loring v. Bacon, 4 Mass. 575.
'■^ Cheeseborough v. Green, 10 Conn. 318.
3 Anonymous, 11 Mod. 7.
Sect. 5.]] EASEMENT OF SUPPORT OF PARTS OF A HOUSE. 569
own property so that it may be able to bear such \v«ight.
The proprietor of the ground story is obliged to uphold it,
for the support of the upper story." It however sliould bo
stated, that every case which he cites to support his position
is one in relation to subjacent support of land, which has
come to be well-settled law.^
7. Tliis subject has been treated of here as a question of
servitude at common law, if, for no other reason, because of
the analogy there is between the support of one part of a
dwelling-house by another, and that of land by what is ad-
jacent or sulyacent thereto.
The Scotch and French systems treat of it as embraced
under the law of servitudes. The former prescribes mi-
nutely what each proprietor of the several stories of a house
is required to do in supporting or maintaining the same.
" Where a house is divided into different floors or stories,
each door (floor?) belonging to a different owner, the proprie-
tor of the ground floor is bound by the nature and condition
of his property, without any servitude, not only to bear the
weight of the upper story, but to repair his own property, in
order that it may be capable of bearing that weight.
As the roof * remains a common roof to the whole, [*485]
and the area on which the house stands supports the
whole, the proprietor of the ground story is obliged to up-
hold it for the support of the upper, and the owner of the
upper must uphold it as a roof or cover to the lower
Where the property of the highest story is divided into sep-
arate garrets among different proprietors, each proprietor
must uphold that part of the roof that covers his own
garret."^
8. In the French law the subject is regulated by the Code,'^
by which : " Where the diflerent stories of a house belong to
different owners, if the writings relating to such property do
1 Graves v. Berdan, 26 N. Y. 501.
2 3 Burge Col. & F. Laws, 404 ; Ersk. Inst., fol. ed., 357. See also Hum-
phries V. Brogden, 12 Q. B. 739, 756.
3 Code Nap., Art. 664. See Pardcssus, Traite' dcs Servitudes, 2S8, 290.
570 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV.
not iK)gulatc tlie custom of repairs and rebuildings, they
shall be done as follows. The main walls and the roof are
at the charge of all the owners^ each one in proportion to
the value of the story belonging to him. The proprietor of
each story is at the expense of his own flooring. The pro-
prietor of the first story makes the staircase which leads to
it ; the proprietor of the second story makes, beginning from
where the former ended, the staircase leading to his, and so
on."
This rule is based upon the above suggestion, that, while
each is to do whatever is necessary within his own premises,
so much of the structure as is for the common benefit of all
the proprietors is made a common charge. And Toullier
accordingly says, it is not only the principal walls of the
house that become party (niiloyens'), but also tke roof, the
stairs, the large beams, &c., and it was necessary to deter-
mine the manner of contributing to the several repairs which
were common to the proprietors, which led to the adoption
of the article of the code above cited. ^
The proprietor of either story may do what he
[*486] sees fit *within his own premises, provided he do
nothing to prejudice the proprietors of the other
stories, either in respect to the convenience or stability of the
same. He may not, for example, place a forge therein,
because of the inconvenience it would occasion to the pro-
prietor above him. Nor may he change the flues of the
chimneys or make new ones. And so with other changes or
new structures which run through the parts of the house
belonging to other proprietors. ^
In several of the departments mentioned by Merlin, sub-
stantially the same rule prevails as to the support and repairs
of houses as tliat given above as the Scotch law.^
Duranton refers to the position of M. Delvincourt, that,
1 3 Toullier, Droit Civil Fran(;ais, 152; 5 Diirauton, Cours De Droit Fraa-
fais, 384.
'^ Merlin, Repertoire de Jurisprudence, tit. Dalimenl, § 2.
3 Ibid.
Sect. 5.] EASEMENT OF SUPPORT OF PARTS OF A HOUSE. 571
where there is no agreement, the several proprietors ought
to contribute ratably to the repairs and reconstruction of the
embankments, the arches and walls of the cellar of houses,
and, in a word, of all the parts whicli are necessary to the
stability of the edifice as a whole, or which serve for the
convenience of the several tenants, such as wells, cess-pools
(fosses (Vaisance), and common passage-ways. But he
differs from him in respect to arches in cellars. Such arches
are not essential to sustaining the edifice, at least not gen-
erally, for the division walls which serve to support the
several stories start from their foundations. The arches of
the cellar are the flooring upon which the proprietor of the
ground floor treads, and consequently they oiight to remain
at his charge, even though he may not be the proprietor of
the cellar.^
If in a house divided as above supposed it shall hQ neces-
sary to place props or supports, as, for example, wliile relay-
ing the underpinning of the lower part of tlie same, in
doing Avhich it may require stays or supports for the upper
parts thereof, a question has been made at whose
*expense these props are to be provided. It might [*487]
seem that it should bo at the expense of the pro-
prietor of the upper part, that being the part wdiich is needed
to be supported. But the custom of cities having imposed it
upon tlie proprietor of the lower part of the house alone to
sustain, at his own expense, the walls of the interior part,
although they support the upper part of the house, it seems
•to be a necessary conclusion, that whatever occupies the
place of these walls ouglit to be provided at the expense of
the proprietor of the lower part. Consequently, the proprie-
tor of the upper part of the house is not bound to contribute
towards such support.^
In fixing the proportions of the joint expense of maintain-
1 5 Duranton, supra, 385, 386. See 3 Toullier, Droit Civil Franeais, 153.
1 Le Page Desgodcts, 108-118.
"^ Merlin, supra, § 2.
572 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. IV.
ing the walls, &c., of houses, as stated in the above article
of the code, among the several proprietors of the respective
stories, regard is not had to what may have been incurred
by way of embellishment or ornamentation by the proprietor
thereof.^
If, in case a house be destroyed by fire or demolished on
accomit of its age, one of the proprietors oppose the wishes
of the others for rebuilding it, the latter may compel him to
elect whether he will abandon his rights or contribute to its
reconstruction, which will be apportioned upon each story
according to the rules of law above stated. And the writer
expresses an opinion, that in such case it ought not to be in
the power of any one to change the nature of the ownership
of the land into a common heritage, subject to be divided
among the proprietors, for the proprietor of the around floor
or lower story ought not to be required to yield any part of
the land, and the other proprietors have an interest to have
their respective stories entire.^
[*488] *9. The common-law doctrine of compelling a party
to repair his house when it is ruinous by a writ de
domo repairmda, was mentioned in the case of Loring v.
Bacon,^ above cited. By the French law, if a house is in
such a ruinous condition as to threaten to fall, and the owner
neglects to take it down or support it by sufficient props, he
may be compelled by the police to do so, and his neighbor
may also be authorized to make the demolition, or apply
such necessary props at the expense of the delinquent pro-
prietor.
10. Questions have arisen between the owjiers of adjacent
estates, upon one of which an existing privy is in use, as to
whether the owner of the privy or the owner of the other
estate is to protect the latter from the effect of the same.
1 5 Duranton, supra, 387 ; 3 Toullicr, supra, 153.
2 .■) Duranton, supra, 388. For the efteet upon a demise, of a destruction of
the demised promises, see Winton v. Cornish, 5 Ohio, 477 ; StockwcU r. Hunter,
1 1 Mete. 448.
** Merlin, supra, § 3.
Sect 5.] EASEMENT OF SUPPORT OF PARTS OF A HOUSE. 573
The rule, as stated in the case of Tenant v. Gohlwin, seems
to be this : If A has a privy upon his estate, which is sepa-
rated from the house of B by a wall, and the wall belong to
A, he is bound to keep the same in repair, and thus protect
the estate of B. So if one own two houses, and there is a
privy belonging to one, against which the other house is
protected by a wall, and he sell the house and privy together,
the purchaser will be bound to keep it in repair, and this
duty will run with the estate. But if one erect a house with
a privy adjoining a vacant estate, and the owner of the latter
would dig a cellar and erect a house near the privy, it will
be for him to erect a wall to protect his premises. And the
same rule would apply if the owner of such house is also the
owner of the vacant lot, and he sell the latter. If the pur-
chaser would occupy it, he must protect himself, by works
upon his own land, against the privy already standing upon
the adjacent lot.^
1 2 Ld. Raym. 1089; s. c, 6 Mod. 313, 314; Holt, 500 s. c, Salk. 360,
where the language of the court is, " an old privy," when speaking of one's
digging a cellar, &c. near an existing privy, which may be regarded a material
qualification of language reported in Lord Raymond.
In the French law, the Code prescribes rules regulating the distances at which
one proprietor of an estate may construct cesspools and other causes of nui-
sance in reference to that of an adjacent owner. Thus, Art. 674 provides that,
" He who digs a well or cesspool, near a party wall or not, is obliged to leave
the distance prescribed by the regulations and usages particular to such things,
or to do the work prescribed by the same regulations and usages to avoid nui-
sance to a neighbor." It is understood that this extends also to privies (la-
trines). There is also a duty imposed upon the owners of these to keep them
cleaned out ; and if they shall fail to do so, the nearest neighboring owners may
cause the same to be done at the expense of the owner of what causes the
nuisance. 2 Fournel, Traite' du Voisinage, 190; Code Nap., Art. 674, Bar-
rett's ed.
574 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. IV.
[*489] *SECTION VI.
EASEMENTS AND SERVITUDES OF LIGHT AND AIR.
1. Of the nature of the easement of light and air.
2. Servitudes in this respect at the civil law.
•8. Wlietlier the right be a negative servitude or positive easement.
4. How far the right is a proper subject of prescription.
5. Tlieory of the right being by grant or covenant.
6. Right treated in I^ngland as one of prescription.
7. No easement of prospect at common law.
8. Easement of light only gained against owner of inheritance.
9. How far grant of house carries easement of light.
10. Does not apply against vendee of vacant land.
11. Swansborough v. Coventry. New building has only rights of old.
12. Compton v. Richards. Rights of light affected by state of premises.
13. Coutts V. Gorham. Same subject, where rights are fixed.
14. Unity of the two estates extinguishes easement of light.
15. How extent of easement is measured.
16. What interruption of light lays foundation for an action.
17. American law as to light and air.
18. 19. Parker v. Foote, Myers v. Gemmel. New York law.
20. Law of jMassachusetts on the subject.
21. Law of Maine on the subject.
22. Law of Connecticut.
23. Law of Maryland. Cherry v. Stein.
24. Law of South Carolina as to light and air.
25. Cases in Pennsylvania on same subject.
26. Easement of light passes, if necessary to enjoy th6 grant.
27. In what States the English rule of law prevails.
28. United States v. Appleton. Effect of sale of house with lights, &c.
29. Hills V. Miller. Easement of light and prospect by grant.
SO. Easement of wind for windmill.
31. Easement of noisome trade, &c.
32. Negative easement to prevent certain trades.
[*490] *1. There has long been recognized by the Eng-
lish common law, and now by the statute of 2 & 3
Will. 4, c. 71, a right, under certain circumstances, to enjoy,
in favor of one tenement, the light and air which naturally
reaches it in coming laterally from and across the land of an
adjacent proprietor. It is treated of as an easement in favor
of the one, and a servitude upon and over the other, though
it obviously wants many of the incidents of those easements
Sect. 6.] EASEMENTS AND SERVITUDES OF LIGHT AND AIR. 575
which are acquired by the adverse enjoyment, in some form,
of a benefit in favor of one estate which injuriously affects
another.
A question lias sometimes been made, whether this right
is a positive casement in favor of the estate which enjoys tlie
benefit of the light, and which the adjacent owner may not
impair, or a negative servitude imposed upon the adjacent
land to which the owner is bound to submit.
2. In the civil law, among the negative services which
might be imposed upon lands, one was, that the owner
should not darken his neighbor's windows ; another was,
that he should not hinder his prospect by building or plant-
ing trees, and another, that he should not make any win-
dows to overlook his neighbor, and in that way take away
the privacy of his house. And it is said, if one has no ser-
vice of this kind upon him, he may make as many windows
as he pleases, but the other party may erect sheds against
them, and so make them useless, unless the windows have
been there time out of mind.^
3. Cresswell, J. seems to regard it rather as a negative
servitude upon the land adjacent to the tenement, than a
positive easement in favor of the tenement itself. " There
are many cases in which the principle has been recognized,
that one land-owner cannot, by altering the condition of his
land, deprive the owner of the adjoining land of the
*privilegc of using his own as he might have done [*491]
before. Thus he cannot, by building a house near
the margin of his land, prevent his neighbor from building
on his own land, although it may obstruct windows, unless,
indeed, by lapse of time the adjoining land has become sub-
ject to a right analogous to what in the Roman law was
called a servitude." ^
4. This right of excluding the owner of vacant land from
1 Ayl. Pand. 310; Wood, Inst. Civ. Law, 93; Inst. 2, 3, 1; D. 8, 2, 1.5;
Ersk. Inst. B. 2, tit. 9, § 10.
2 Smith V. Kenricii, 7 C. B. 515, 565.
676 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV
building thereon, because a neighboring proprietor had en-
joyed his own estate in such way as he saw fit, without in
any manner injuriously affecting or interfering with the
rights of the first, is admitted by most who have discussed it
to be difficult if not impossible to sustain, upon any notion
of prescription or grant known to the law. In the first
place, such enjoyment is had upon the land of the one who
claims it, and the subject-matter of such enjoyment is not
anything which is the subject of grant from another, for
light and air belong to no man except as they may be enjoyed
upon, and in connection with, his own land or tenement.
And in the next place, such enjoyment can in no sense be
adverse to any one, since he thereby uses simply what is his
own, and in no manner affects or interferes with the enjoy-
ment of the same light and air by other persons, in such
manner as they please. And the cases are uniform, that
such adjacent owner may deprive his neighbor of the light
coming laterally over his land, by the erection of a wall, for
instance, upon his land within the period of prescription,
although he may do it for the mere purpose of darkening his
neighbor's windows. So far, therefore, as it prevails, this
right, as it results from long enjoyment, may be deemed to
exist rather by a positive rule of law than by the application
of any of the ordinary principles of prescription, and is
derived from a simple occupancy, without its being in any
sense adverse in its enjoyment.^
[*492] *And it is said, that, as a rule of law, it never
became settled in Westminster Hall until 1786, in
Dai'win v. Upton, found in 2 Wms. Saund. 175 d, note.^
Bat in Calthorp's reports, published in 1661 (p. 3-8), it
1 Moore v. Rawson, 3 Barnew. & C. 332, 340; Renshaw v. Bean, 18 Q. B.
112; Cox V. Mattliews, 1 Vcntr. 239; Chandler v. Thompson, 3 Campb. 80;
per Baijlcy, J., Cross v. Lewis, 2 Barnew. & C. 686 ; Parker v. Foote, 19 Wend.
309, 317 ; Mahan v. Brown, 13 Wend. 261 ; Pickard r. Collins, 23 Barb. 444 ;
Ray V. Lynes, 10 Ala. 63 ; Cherry v. Stein, 11 Md. 122; Tud. Lead. Cas. 123 ;
2 Washb. Real Prop. 61.
2 Parker v. Foote, 19 Wend. 309, 317.
Sect. 6.] EASEMENTS AND SERVITUDES OF LIGHT AND AIR. 577
is shown that by the custom of London one might not erect
a new house upon a vacant lot so as to obscure the windows
of an ancient house, for the ancient house had, ])y tlie enjoy-
ment, acquired an easement of light by prescription. If
both were new houses no such custom obtained, nor did it,
if the windows which are obscured be new ones. So if one
built upon an old foundation, but no larger than the founda-
tion itself, he would not be liable, if he built higher than the
original building, and thereby obscured ancient windows
which opened from tlie adjoining houses which had not been
obscured by the original building. But no one could claim
an easement of prospect by prescription.^
But the right to build upon an old foundation, so as to
obscure ancient windows, is taken away by the Stat, of 2 and
3 Wm. 4, C. 71.'-^
5. There is a view, indeed, by which the so-called pre-
scriptive right of light and air is sometimes sustained, which
is more compatible with the general rules of law than by
treating it as a thing gained by grant evidenced by adverse
enjoyment, and that is as evidence on the part of the owner
of the land over which it is claimed, that, for a sufficient
consideration, he, or those under whom he claims, had
covenanted or agreed not to use his land so as to interrupt
the enjoyment of the buildings standing upon the adjacent
lot. It is but carrying out what has already been shown to
be a familiar rule of law, that, if one grant an estate to
which certain apparent and continuous subjects of enjoy-
ment belong, and are used therewith, like that of an aque-
duct, lateral support by adjacent soil, and the like, he cannot
afterwards derogate from the benefit of his own grant by
interfering therewith. Upon the same principle, if one who
has a house with windows looking upon his own vacant land
sell the same, he may not erect upon his vacant land a
structure which shall essentially deprive such house of the
1 See Anon., Com. Rep. 273.
2 Truscott V. Merch. Tailor's Co., 11 Exch. 855.
37
578 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. IV.
light through its windows. And if the length of enjoyment
is sufficient to raise a presumption that it was done under
some such actual or implied covenant or agreement, the
doctrine may be sustained without violating the ordinary
rules of prescription, as they have generally been under-
stood. ^
[*493] *But how this right to light and air over another's
land may be considered as acquired by law is spoken
of by Patteson, J. as " a question of some nicety." ^
6. Upon whatever ground the claim rests, it has long been
held in England that one may prescribe for the right of light
and air to come to his windows unobstructed across the land
of another, if enjoyed for twenty years, or the period of ordi-
nary prescription.^
7. It may be stated, however, in respect to the civil-law
easement or servitude of a right of prospect, that it cannot
be acquired at common law, by any mere length of enjoy-
ment.*
But a party may, by the terms of his grant, be estopped
1 Moore v. Rawson, 3 Barnew. & C. 332, 340 ; Palmer v. Fletcher, 1 Lev.
122; Aldred's case, 9 Rep. 58 b ; Darwin v. Upton, cited, 3 T. R. 159; 2
Wins. Saund. 175 d, note; Harbridge v. Warwick, 3 Exch. 522. But see Row-
botham v. Wilson, 8 Ellis & B. 143, per Watson, B. ; United States v. Appleton,
1 Sumn. 492, 501. See Crompton, J., Stokoe v. Singers, 8 Ellis & B. 31, 38. See
White V. Bass, 7 H. & Norm. 722.
2 Blanchard v. Bridges, 4 Adolph. & E. 176.
3 Cross V. Lewis, 2 Barnew. & C 690 ; Aldred's case, 9 Rep. 58 b ; Renshaw
V. Bean, 18 Q. B. 112, 131 ; Sury v. Pigott, Poph. 166. Contra, Bury v. Pope,
Cro. Eliz. 118; Lewis v. Price, 2 Wms. Saund. 175 a, note; 3 Kent, Comm.
448.
Numerous cases have arisen in the English courts upon the acquisition of a
prescriptive right to easements, like light and air, under the provisions of the
statute of 2 & 3 Will. 4, c. 71, and the construction given to it by the courts,
among which is that of Flight v. Thomas, 8 Clark & F. 231, which are purposely
omitted in this work, as being matters of local statute law, except so far as they
may have served to illustrate some doctrine of the common law. See Ward v.
Robins, 15 Mees. & W. 237, 242 ; Wright v. Williams, 1 Mees. & W. 77 ; Plas-
terers' Co. V- Parish Clerks' Co., 6 Eng. L. & Eq. 481. See Cooper i;. Hubbuck,
12 0. B. N. i5. 456.
* Aldred's case, supra ; Com. Dig., Action on the Case for a Nuisance, C ;
Parker v. Foote, 19 Wend. 309 ; Calthorp's Rep. 5.
Sect. 6.] EASEMENTS AND SERVITUDES OF LIGHT AND AIR. 579
from afterwards obstructing tlio prospect which the grantee
of the premises was to enjoy as an incident to his grant.^
8. And in order to acquire an easement of light over a
parcel of land, by adverse enjoyment, the same must have
been had while the servient estate was in the possession
of the owner of the inheritance. No lengtli of en-
*joyment, as against a tenant, can bind the rights of [*494]
a reversioner.^
9. In applying the doctrine above stated, that one may
not derogate from his own grant, to the case of the enjoy-
ment of lights belonging to dwelling-houses which have been
the subjects of the grant, there is a series of cases, beginning
with Palmer v. Fletcher, where it has been held by the Eng-
lish courts, that, if one having a house with windows to which
the light comes over his adjacent land sell the house, neither
he, nor any one claiming under him, can do anything upon
the adjacent land to obstruct these.^
10. But if the vendor had sold the land, and reserved the
house, he would not have thereby reserved the right of en-
joyment of the lights, except by express terms of his deed.*
Nor would it make any difference in the application of this
principle, that the grantor of the house had, previously, let
it to his grantee by a lease which limited and restricted him
from erecting a house on the leased premises, so as to obscure
the lights upon the lessor's premises. The grantor, by his
subsequent unqualified grant of the reversion to the lessee,
abrogated this limitation and restriction in the lease. ^
1 Piggott V. Stratton, Johns. Ch. (Eng.) 341, 3.5G, 357. See Attorney-General
V. Doughty, 2 Ves. Sen. 453 ; Squire v. Campbell, 1 Mylne & C. 459.
^ Shelf. E. P. Stat. 98 ; Baker v. Richardson, 4 Barnew. & Aid. 578 ; Daniel
V. North, 11 East, 372.
3 Palmer v. Fletcher, 1 Lev. 122; Cox v. Matthews, 1 Ventr. 237 ; Rosewell
V. Pryor, 6 Mod. 116; s. c. Holt, 500; Tenant v. Goldwin, 6 Mod. 311 ; s. c,
2 Ld. Raym. 1089 ; Compton v. Richards, 1 Price, 27 ; Swansboroxigh v. Cov-
entry, 9 Bing. 305. Per Bat/ley, J., Canham v. Fisk, 2 Crompt. & J. 126 ; s. c,
2 Tyrw. 155 ; Shelf. E. Stat. 98 ; Robins v. Barnes, Hob. 131 ; United States
V. Appleton, 1 Sumn. 492, 501 ; 2 Dane, Abr. 716; Com. Dig., Action on the
Case for a Nuisance, A.
* Per Kehjufje, Palmer v. Fletcher, supra ; Tenant v. Goldwin, supra.
5 White V. Bass, 7 H. & Norm. 722.
580 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. IV.
But where there were two subsisting tenements adjoining
each other, and the owner leased one of them, the lessee
would not have a right to obstruct the lights in the other
tenement as they existed at the time when the lease was
made, although the same were a recent erection, and there
were no stipulation in regard to the same in the lease. ^
11. In the case of Swansborough v. Coventry, the build-
ing complained of had been erected, upon the site of an old
one which had been torn down, upon land purchased for
building purposes. But the new building was higher
[*495] than *the old one, and it appeared that both estates
had been derived from the same vendor, and were
both sold at the same time. The plaintiff's house was an
ancient one, and was conveyed with " all lights, easements,"
(fee. ; and it was held that the defendant had no right to
erect a new building higher than the one formerly standing
upon his land, so as to obscure the ancient lights in the
plaintiff's house.^
12. In the case of Compton v. Richards the buildings and
lots in relation to which the question of the right of enjoy-
ment of lights arose were parts of a general enterprise for
the erection of a range of buildings at Clifton, called the
Royal York Crescent. The design having been abandoned,
the several lots and houses, so far as erected, were sold in
lots, with certain conditions stipulated in the sale. The
plaintiff's lessor and the defendant bought adjoining lots,
and it was alleged that the defendant had raised the walls
of his house higher than were laid down in the plan and ele-
vation of the same, as described and referred to in the con-
ditions of sale. It appeared that the spaces for the windows
alleged to be obstructed were actually opened in the walls
at the time of the sale. The Chief Baron says : " This pur-
chase must have been taken to have been subject to certain
conditions at the time of sale, and as these unfinished houses
1 Riviere v. Bower, Ry. & M. 24.
2 Swansborough v. Coventry, 9 Bing. 305.
Sect. 6.] EASP:MENTS AND SERVITUDES OF LIGHT AND AIR. 581
were at that time so far built as that the openings which
were intended to be supplied with windows were sufficiently
visible as they then stood, we must recognize an implied con-
dition tliat nothing would afterwards be done by which those
windows might be obstructed. And the purchasers must
have taken subject to what then appeared," Wood, B. says:
" When this house was granted to the plaintiff's lessor, he
became grantee of everything necessary to its enjoyment, as
much as if it had been said, at the time, that no one should
obstruct the light whicli it then enjoyed."^
*13. This doctrine, that the rights of parties to [*496]
the use of light, where claiming under the same
grantor, and that these are governed by the state of the
premises at the time of acquiring title to the same, is illus-
trated in the case of Coutts v. Gorham, where the owner of
two estates, each of them ancient houses, leased one of them
for twenty-one years to A. B., who assigned it to the defend-
ant. Defendant afterwards, and during the term, took a
new lease from the owner for twenty-one years. But be-
tween the making of the first and second leases the owner
altered the windows in the other house, and lot the same to
the plaintiff, a few months before the defendant took his sec-
ond lease. The defendant obstructed these new windows in
the tenement of the plaintiff, for which he brought an ac-
tion. It was held, that, by taking a new lease from the
plaintiff's lessor, the defendant surrendered his first one,
and that he took the premises as they then were, and had
no right to obstruct the windows as they then existed in the
plaintiff's tenement.^
14. The more ancient case of Robins v. Barnes is in
accordance with the doctrine above stated. In that case
there was an ancient house, and an adjacent owner having
erected a new one which obscured the windows of the for-
mer house, the owner thereof purchased the new house, and
1 Compton V. Richards, 1 rrice, 27, 36, 38.
" Coutts V. Gorham, 1 Mood. & M. 396.
582 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV.
then sold the ancient one. It was held, that by such unity
of title and possession the easement of light and air once
belonging to the ancient house was extinguished, and the
purchaser therefore took the premises in the condition in
which they were when the same were conveyed, without
any such right of easement. ^
15. Where an easement of light is acquired by enjoyment
and user, the extent of such right is measured by the pur-
poses and mode of such enjoyment. Thus where
[*497] one had * acquired a right of light for a malt-house,
and complained of the obstruction thereof, it was
held that the question to be determined was, whether the
defendant had obstructed the light so as not to have enough
left for the use and enjoyment of a malt-house. For any
excess beyond such obstruction he would not be liable, al-
though the malt-house had been changed to a dwelling-house,
and the enjoyment of more light was requisite to its con-
venient occupation.^
16. And in respect to the extent or degree to which the
obstruction of one's light must be carried, in order to enable
the party entitled to it to maintain an action for the injury,
it is said by the courts that " there must be a substantial
privation of light, sufficient to render the occupancy of the
house uncomfortable, and to prevent the owner from carry-
ing on his accustomed business on the premises as bene-
ficially as he had formerly done." And it is for the jury to
discriminate between practical inconvenience and a real
injury to the enjoyment of the premises.^
17. The subject has thus far been treated of chiefly from
the point of view of the English common law, with a brief
allusion to English local statutes. This has been done in
order to present, in something like a connected order, the
rules which prevail in the American States upon the siibject
1 Robins v. Barnes, Ilob. 131.
2 Martin v Goble, I Campb. 320.
8 Bacic V. Staccy, 2 Carr. & P. 46.5 ; Parlicr v. Smith, 5 Carr. & P. 438 •
Pringlc V. Wcrnham, 7 Carr. & P. 377 ; Wells v. Ody, 7 Carr. & P. 410.
SucT. 6.] EASEMENTS AND SERVITUDES OF LIGHT AND AIR. 583
of acquiring rights to light and air hy mere length of enjoy-
ment. These will generally be found to be at variance with
the English law. And even as to tlie effect to be given to
grants, in respect to the enjoyment of liglit and air, arising
from the condition and circumstances of the estates to which
they relate, tlie decisions will be found to be far from uni-
form, and some of them not very satisfactory.
The reasons generally assigned for adopting a different
rule in this country, as to prescriptive rights to light and
air, from that which prevails in England is, that the
latter *is not suited to the condition of a country [*498]
which is growing and changing so rapidly in all its
relations of property, as well as its value and modes of en-
joyment. And in this is witnessed another illustration of
the influence of those silent agencies which are constantly at
work in a free community, in adapting and giving form and
consistency to tlie rules of its common law, to meet the wants
and condition of the body politic. And it seems proper, in
this light, to trace briefly the course of decisions in the sev-
eral States, whereby the law has become settled, and to point
out some respects wherein the same differs in the different
States.
It will be found, it is believed, that in New York, Massa-
chusetts, South Carolina, Maine, Maryland, Pennsylvania,
Alabama,! and Connecticut the doctrine of gaining a pre-
scriptive right to light and air, by mere length of enjoyment,
has been discarded ; while the English rule in this respect is
retained in Illinois, New Jersey, and Louisiana.
In the case of Mahan v. Brown,^ the Chief Justice, and in
Banks v. American Tract Society ,3 the Chancellor of New
York, examine and discuss the point without settling it.
But in Parker v. Foote,* after a most elaborate examination
1 Ward V. Neal, 37 Alab. 501 ; post, p. *505.
2 Mahan v. Brown, 13 Wend. 261, 263.
3 Banks v. Am. Tract Society, 4 Sandf. Ch. 438.
* Parker v. Foote, 19 Wend. 309.
584 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. IV.
of the siil)ject, and also in Myers v. Gemmel,^ the riile seems
to be finally adopted and settled as above stated.
18. In Parker v. Foote the court, in showing the want of
analogy between ordinary easements of ways, watercourses,
and the like, where the enjoyment by which they are gained
worked an injury to those against whom they are claimed,
say : " But in the case of windows overlooking the land of
another, the injury, if any, is merely ideal or imaginary.
The light and air which they admit are not the subjects of
property beyond the moment of actual occupancy,
[*499] and for ^overlooking one's privacy no action can be
maintained. The party has no remedy but to build
on the adjoining land opposite the offensive window
In the case of lights, there is no adverse user, nor indeed any
use whatever of another's property, and no foundation is laid
for indulging any presumption against the rightful owner.
.... There is, I think, no principle upon which the mod-
ern English doctrine on the subject of lights can be supported.
It is an anomaly in the law. It may do well enough in
England, but it cannot be applied in the growing cities and
villages of this country without working the most mischiev-
ous consequences. It has never, I think, been deemed apart
of our law, nor do I find that it has been adopted in any of
the States." 2
19. In Myers v. Gemmel the reasoning of the court in
Parker v. Foote is approved, and it was further held, that, if
one having a dwelling-house opening upon a vacant city lot
lease the dwelling-house, he is not thereby prevented from
erecting a house upon the vacant lot, although it occupy the
whole space and darken the windows opening upon it in the
house so leased. It was not held to be in derogation of his
own grant, since the law attaches no right of enjoyment of
light as an incident to the occupation of an estate, unless it
exists in the form of a dedication to groups or collections of
1 Myers v. Gemmel, 10 Barb. 537.
'^ Sec Riuk-lifry. Mayor, &c., 4 Comst. 195, 200.
Sect. 6.] EASEMENTS AND SERVITUDES OF LIGHT AND AIE. 585
houses partaking of the character of a public easement.
Thus the court put the case of buildings built around a
court, with an open space for light and air, witli a common
entrance to the same, and open for all the tenants of these
houses, and express an opinion that it would be held that
the owner who appropriated the space dedicated it for the
benefit of all the tenants.^
In Banks v. American Tract Society, where the plaintiff
was induced by the adjacent owner to remove a part of his
building, so as to enjoy light for the same*from an
open *space between that and the building of the [*500]
defendant, and the latter then began to erect a wall
within this open space, which would darken the windows in
the plaintiff's house, the Court of Chancery granted an in-
junction to restrain such erection.^
20. In Massachusetts it has not been till recently that the
full determination of the question of prescriptive right to
light was reached. In Story v. Odin, where the action was
for an obstruction to the plaintiff's lights, the case turned
upon the effect of a sale by one of a house adjoining an open
space of land belonging to him, and over and across which it
derived its light and air, the court say : " This grant being
without any exception or reservation of a right to build on
the adjacent* ground, or to stop the lights in the building
which they sold, it is clear the grantors themselves could
not afterwards lawfully stop those lights, and thus defeat or
impair their own grant. As they could not do this them-
selves, so neither could they convey a right to do it to a
stranger," ^ and they refer to Palmer v. Fletcher and Ros-
well V. Pry or ^ with approbation.
In Atkins v. Chilson, where the point was made by the
counsel, and referred to by the court, it was left wholly un-
1 See also Palmer v. Wetmore, 2 Sandf. 316.
2 Banks v. Am. Tract Society, 4 Sandf. Ch. 438, 470.
8 Story V. Odin, 12 Mass. 157. See also Grant v. Chase, 17 Mass. 443;
Thurston v. Hancock, 12 Mass. 221.
* Koswell V. Pryor, anle, pi. 9.
686 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. IV.
settled, as the case turned upon another question than the
prescriptive right to enjoy light by one tenement over and
across an adjacent one, though the court say, that up to tliat
time (1844) " the tendency of our decisions has been the
other way " from those of New York and Connecticut. ^
In the Fifty Associates v. Tudor, the court, in reference to
the question whether the owner of a city tenement having
windows opening upon the land of another, and enjoy-
ing the light therefrom for twenty years, acquires
[*501] *thcrcby'an absolute right to the continued enjoy-
ment of the same, say : " Upon the question, we
think there has been no direct judicial decision in this Com-
monwealth. ThQ general rule of the common law seems to
have been in favor of the affirmative of the question." This
was in 1856. But the court held, in that case, that the
wall under consideration was not near enough to the win-
dow said to be obstructed, within the rule laid down in
Back V. Stacey, above cited,^ to constitute " a substantial
privation of light," so that the main question remained still
unsettled.^
In Collier v. Pierce the question referred only to how far
one may acquire an easement of light from being the gran-
tee of a tenement which, while in the possession of the
grantor, enjoyed the benefit of light over the same grantor's
other land. In that case, the parcels owned by the plaintiff"
and defendant respectively, were offered for sale at auction,
in lots designated by metes and bounds, and were sold on
the same day. The plaintiff's lot was bid off first, and his
deed was prior in time. But no reference to light or air was
expressed in the deeds. The court say, the sale was of the
nature of a partition of the estate rather than of a grant by
one proprietor of a part of his estate, retaining to himself
another part. And inasmuch as the case did not find that
the enjoyment of tlie light through the window in question
1 Atkins V. Chilson, 7 Mete. 398, 403.
2 Back V. Stacey, 2 Carr. & P. 465.
3 Fifty Associates v. Tudor, 6 Gray, 255.
Sect. C] EASEMENTS AND SERVITUDES OF LIGHT AND AIR. 587
was necessary to the convenient enjoyment of the plaintiff's
estate, the court held that the easement did not pass by
construction. And they liken it, in principle, to the case of
Johnson v. Jordan.^
But in Carrig v. Dee (in 18G0) the court say that they
" are of opinion that the plaintiff acquired no right to the
use of air and light coming laterally to his windows over the
vacant lot of the defendant, though continued for
twenty *years before the statute (1852, c. 144) toolc [*502]
effect. And that the window on hinges, swinging
outwards over the defendant's land, did not constitute such
adverse possessory use of the adjoining land as to make any
difference in principle." ^
The law may, therefore, be considered as now settled in
Massachusetts, both as a common-law rule and as a statutory
provision, adversely to any prescriptive claim to light and air
as an easement. And the tendency of the cases seems to be,
that no such right would pass by the mere grant of a dwell-
ing-house having windows looking out upon the grantor's
other land, unless such enjoyment of light should be so far
necessary to the enjoyment of the house, that if the grantor
were to build upon such vacant land he would virtually
deprive the owner of the means of enjoying what he had
sold him.
21. In Maine the question arose, and was decided in 1847.
The court, in a full analysis of the cases more directly bear-
ing upon the point, deny that the common law originally
contained the principle upon which the modern English
decisions rest. And it is now settled, that both the statute
of that State and the common law there are alike adverse to
the acquisition of an easement of light in favor of a tenement,
by its having enjoyed it over and across another's land for
more than twenty years.^
1 Collier v. Pierce, 7 Gray, 18 ; Johnson v. Jordan, 2 Mete. 234.
2 Carrig w. Dec, 14 Gray, 583. See also Rogers v. Sawin, 10 Gray, 376 ; Paine
». Boston, 4 Allen, 109.
3 Pierre v. Fernald, 26 Me. 436.
688 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV.
22. TliG statement of the law of Connecticut upon this
point, as being adverse to a prescriptive right to light and
air, is based upon the reasoning of the court in Ingraham v.
Hutchinson, although it was not the point directly raised in
the case. And the Statute of the State sustains that doc-
trine.^
23. In Maryland tlie question arose in the case of Cherry
V. Stein. The court expressly adopt the reasoning
[*503] in Parker *v. Foote, above cited, and deny that the
English law, as to prescriptive right to light and air,
prevails in Maryland. And as to the point that, if one
owning a house whose windows open upon a vacant piece of
land belonging to him sell the house without reservation, he
would not be at liberty to build upon the vacant lot so as to
obstruct the light of those windows, the court, without either
affirming or disaffirming the proposition, say : " That princi-
ple is only applicable where the vendor of the house having
the lights was, at the time of sale, not only owner thereof,
but liliewise owner of the adjacent vacant lot." And add :
" Now it might be conceded that the doctrine of the cases
referred to is the law of Maryland, and still it would not
sustain the appellant's claim to have his lights protected by
injunction." ^
24. In one of the reported cases of the courts of South
Carolina,^ the doctrine of the English law as to prescriptive
rights of light and air is assumed to be the law of that
State. But in a subsequent and more fully considered
case* the doctrine was discarded, and denied to be the law
there.
In the case last cited the subject is examined at consider-
able length, and its analogies considered. And among them
1 Ingraham v. Hutchinson, 2 Conn. 584; Stat, of Conn. Comp. 1854, tit. 29,
c. 1, H8, ]). 6.3G.
^ Cherry v. Stein, 11 Md. 1, 24, overruling the doctrine in Wright v. Freeman,
5 Harr. & J. 477.
8 M'Cready r. Thomson, Duilley, 131.
* Napier v. Bulwinklc, 5 liidi. 311.
Sect. 6.] EASEMENTS AND SERVITUDES OF LIGHT AND AIR. 589
the court remark : " The same distinctions would prevent
the acquisition of an easement in tlie shade of a tree which
stands on his neighbor's land near his boundary, or of an
easement to have continued the protection against winds
which a neighbor's forest, or a hill on his land, had long
afforded to another's orchard." ^
25. Tlie subject has been repeatedly brought before the
courts of Pennsylvania. But it will be necessary to refer to
only two or three of these cases. In Hay v. Ster-
rett (1834) * Rogers, J. says : " The doctrine of the [*504]
English books in respect to ancient lights is not very
well understood in this country I am not aware
that any case has been ruled in this State in whicli the
principle has been recognized. It should be introduced
with caution." 2
In Haverstick v. Sipe (1859), Lawrie, C. J. says: "It
has never been considered in this State that a contract for
the privilege of light and air over another man's ground
could be implied from the fact that such a privilege has been
long enjoyed." ^
In Maynard v. Esher,* while the court assume the rule to
be, that if a man sells a hoiise with windows looking out
upon his other vacant land, he would not be at liberty to
build upon his other land so as to obstruct these, they limit
the doctrine to cases where the grantor, at the time of sale,
owns both estates. And they adopt the doctrine stated by
the court in the case of Collier v. Pierce, above cited,° that
where the two estates are conveyed at the same time to dif-
ferent purchasers, no easement in favor of one or servitude
upon the other in respect to light and air passes with the
estates. In that case, lots Nos. 6 and 7 were sold at the
same auction. No. 6 was a vacant lot, adjoining No. 7, a
1 Napier v. Bulwinkle, 5 Rich. 324.
2 Hay V. Stcrrett, 2 Watts, 331.
3 Haverstick v. Sipe, 33 Penn. St. 368, 371.
* Maynard ». Esher, 17 Penn. St. 222, 226.
5 Collier V. Pierce, 7 Gray. 1 8.
590 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. IV.
dwelling-house. No. 6 was bid off first, and sold " free of
encumbrances." The other lot was bid off within five min-
utes of the first, and the memorandum of the sale signed
immediately by the parties. The court held, that if the
sales were to be taken as simultaneous, neither lot would
be servient to the other. And if priority of sale affected the
question, it was in favor of the purchaser of No. 6.
26. So far, therefore, as weight of authority both English
and American goes, it would seem that, if one sell a house,
the light necessary for the reasonable enjoyment
[*505] whereof is *derived from and across adjoining land,
then belonging to the same owner, the easement of
light and air over such vacant lot would pass as incident to
the dwelling-house, because necessary to the enjoyment there-
of ; but that the law would not carry the doctrine to the se-
curing of such easement as a mere convenience to the granted
premises.^
27. The cases where the English doctrine of prescriptive
rights to light and air is sustained are Gerber v. Grabel in
Illinois,^ Robeson v. Pittenger in New Jersey,^ Durel v.
Boisblanc in Louisiana ; * and to these may be added the
case of Eay v. Lynes in Alabama,-^ although now overruled.^
In Robeson v. Pittenger considerable stress is laid upon
the fact that the house was built by the owner of both
estates, that the windows had long enjoyed the light over
the vacant land, and that the house was first granted by the
original owner of the two estates.
In Ray v. Lynes the court, to an application for an injunc-
tion to placing a shop which partially obscured the light of
recent windows, say : " The foundation of this right is the
1 S',c also Biddlc v. Ash, 2 Ashin. 211, 222 ; Durel v. Boisblanc, 1 La. Ann.
407 ; Lampman v. Milkes, 21 N. Y. 505 ; Story v. Odin, 12 Mass. 157.
2 Gerher v. Grabel, 16 111. 217.
•^ Ilobeson v. Pittenger, 1 Green, Ch. 57, 64.
* Durel V. Boisblanc, 1 La. Ann. 407.
6 Ray V. Lynes, 10 Ala. 63.
c Ward v. Ncal, 35 Ala. 602 ; s. c, 37 Ala. 501 ; ante, p. *498.
Sect. 6.] EASEMENTS AND SERVITUDES OF LIGHT AND AIR. 591
privation of an ancient privilege, so long enjoyed as to be-
come a right. Such is not the fact here."
28. In United States v. Appleton, Story, J. recognizes the
doctrine as in force, that if one owns a store or dwell-
*ing-house whose doors or windows open upon his [*506]
own land, and he sells the building, " there can be
no doubt that the grant carries with it the right to the en-
joyment of the light of those windows, and that the grantor
cannot by building on his adjacent land entitle himself to
obstruct the light or close up the windows It is
strictly a question what passes by the grant Their
grant carried by necessary implication a right to the door
and window, and the passage as it had been, and as it then
was, used It is observable that in this case reliance
is placed on the language of the grant, ' with all ways,' &c.
But this is wholly unnecessary, for whatever are properly in-
cidents and appurtenances of the grant will pass without the
word ' appurtenances,' by mere operation of law." ^
29. An instance was referred to, in another connection, in
the case of Hills v. Miller, of an easement of light and pros-
pect being gained by construction of the terms of a grant.^
In that case plaintiff bought the land which Miller had pur-
chased of one B. A lot of land in front of it was by agree-
ment of B. to be always kept open, and he gave Miller a bond
to that effect, of which Miller informed the plaintiff when he
sold him the house-lot in question. It was held that this
created an easement of light and prospect over this vacant
lot, which run with all and every part of the land purchased
of B., and it was not in Miller's power to release or affect the
plaintiff's right to enjoy this easement.
30. Among the rights which are necessary to the enjoy-
ment of tenements, and which it had been held may be ac-
1 United States v. Appleton, 1 Sumn. 492, 502. See the general subject
treated of, 3 Kent, Coram. 448. See Parker v. Nightingale, 6 Allen, 341, &
Cases cited. See also ante, p. *63, pi. 44.
2 Hills r. Miller, 3 Paige, 254, 257 ; Whitney v. Union Railway Co., 11 Gray,
359 ; 2 Washb. Eeal Prop. 33. See ante, pp. 90 - 97.
592 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. IV.
quired by long enjoyment in tlie nature of easements, is that
of the owner of a wijidmill to the use of the wind and air
over adjacent lands, and for an obstruction of this
[*507] *by the erection of walls or buildings upon the ad-
jacent land an action will lie.^
31. On the other hand the right freely to enjoy pure air
is an incident to property in houses designed for dwelling
or occupation by man. But a right to carry on a noisome
trade may be acquired by as long enjoyment as twenty
years, as against the proprietor of an estate thereby injurious-
ly affected. And if one erect his house within the influence
of a tanyard upon the atmosphere, for instance, he cannot
complain that its occupation is thereby rendered unpleasant.^
Questions have arisen as to what would be such a tainting
or corrupting the air by one man as to give another a right
of action therefor, on the ground of its creating a private
nuisance. In one case it was held that the erection of a
brewery upon adjacent land, and burning sea-coal therein,
was not a nuisance, but erecting and using a privy upon the
same was. The declaration averred that' ho rrib lies vapores
et imalubres arose from these. Doddridge, J. said, among
other things, " If a man is so tender-nosed that he cannot
endure sea-coal, he ought to let his messuage." ^
But in a recent case, the Vice-Chancellor enjoined a
neighboring owner of land from burning brick thereon
near a dwelling-house which had stood for many years,
1 Goodman v. Gore, 2 Rolle, Abr. 704. See Winch. 3. But this doctrine
is questioned, and overruled, by the late case of Webb v. Bird, 10 C. B. n. s.
269. See also 1 Am. Law Reg. n. s. 637 ; s. c, 13 C. B. n. s. 841.
It is stated by Foumel that windmills were not subjects embi-aced within the
Roman law of servitudes. They were first known in France and England in
the eleventh century, having been brought thither by the Crusaders on their
return from the East. 2 Fournel, Traite' du Voisinage, 222.
2 Bliss V. Hall, 5 Scott, .500; Dana v. Valentine, 5 Mete. 8, 14 ; EUiot^on v.
Fretham, 2 Bing. n. c. 134; Commonwealth v. Upton, 6 Gray, 473; 3 Kent,
Comm. 443; Rex v. Cross, 2 Carr. & P. 483; Flight v. Thomas, 10 Adolph.
& E. 590; Kowbotham v. Wilson, 8 Ellis & B. 123, 143; Jones v. Powell,
Palm. .5.'58.
^ Jones V. Powell, I'alm. .'J3G.
Sect. G.] EASEJIENTS AND SERVITUDES OF LIGHT AND AIR. 593
because * the smoke cand vapor thereby occasioned [*o08]
would be " materially interfering witli the ordinary
comfort, physically, of human existence," and " not merely
according to elegant or dainty modes and habits of living." ^
In the above case from Palmer, Doddridge, J. remarked,
that, if the brew-house was a noisome trade, still if it Avas an
ancient one, and the other party came to dwell near it, he
must be content with it as lie found it.^
And although one may acquire a right to the enjoyment
of light and air in connection with an estate, it is always
subject to the reasonable enjoyment by others of their own
property. One man's fire, for instance, may make the air
of his neighbor less sweet and pure, but the latter cannot,
for that cause, com||lain. Nor could he, if his neighbor, by
planting a tree upon his own land, were somewhat to ob-
scure his light, or obstruct his air and prospect. But one
would be liable for carrying on a manufacture so near an-
other as to render the air thereby sensibly impure.''^
It is not easy to draw the line between what trade or
business may be carried on upon one's premises which cause
inconvenience to another, and what may not Ipe thus prose-
cuted. Thus in one case, the court held that it was not
actionable to burn brick upon one's own land, thougli the
smoke was offensive to a neighboring dwelling-house, if the
place was a proper one and convenient for the business.
" The common-law right," says Willis, J., " which every pro-
prietor of a dwelling-house has to have the air uncontami-
nated and unpolluted, is subject to this qualification, that
such interference be in respect of a matter essential to the
business of life, and be conducted in a reasonable and proper
manner, and in a reasonable and proper place." ^ The case
of Hole V. Barlow was afterwards referred to with approba-
1 Walter v. Selfe, 4 De Gex & S. 315, 322.
2 Jones V. Powell, Palm. 538.
3 Emhrey v. Owen, 6 E.kcIi. 353 ; Wood v. Waud, 3 Exch, 748, 781 ; 2
Washb. Real Prop. 64.
* Hole V. Barlow, 4 C. B. n. s. 334.
38
6'J4 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. IV.
tiou hy the Barons of tho Exchequer, in giving an opinion in
Stockport Waterworks v. Potter, but it seems that the fact
that the kiln complained of in that case was used for a tem-
porary purpose, might have had some influence upon the
minds of the court in holding tliat its use was not action-
able. In the case last mentioned, the defendant had calico
printing works upon a stream, into which he threw materials
used in his dye works, which contained arsenic, and thereby
poisoned the stream. This trade was a proper one in itself,
and he carried it on in the accustomed manner, but tlicre was
no evidence as to its being a reasonable one or in a reasona-
ble and proper place. But it was held, tliat he had no right
so to carry it on as to poison those living below upon the
stream, and had occasion to use the w§ter. The case was
decided upon the general policy of the trade being noisome
and dangerous to the public health, and did not involve any
question of prescriptive right to carry it on.^
82. One may also gain a negative easement, which was
originally created by grant, such as that the adjacent owners
should not carry on any offensive trade or trades of particu-
lar kinds, although the same may not be unlawful as being
a public nuisance. Thus where an owner of several lots ad-
joining each other inserted a covenant in the deed of each
of the purchasers of these lots, that the occupant should
not carry on any offensive trade thereon, it was held that
any one of these purchasers could have an injunction against
any other owner of either of these lots who should under-
take to carry on such kind of business thereon.^ And tlie
court, in another case, after referring to the above class
of cases, add: "When, therefore, it appears, by
[*509] * the fair interpretation of tlie words of the grant,
that it was the intent of the parties to create or re-
serve a right, in the nature of a servitude or easement in the
property granted, for tlie benefit of other land owned by the
1 Stocki^ort Water Works v. Potter, 7 II. &Norm. 160.
- Barrow v. Kicliard, 8 Piiigc, .351.
Sect. 7.] MISCELLANEOUS EASEMENTS AND SERVITUDES. 695
grantor, and originally forming, with the land conveyed, one
parcel, such right sliall be deemed appurtenant to the land
of the grantor, and binding on tliat conveyed to the grantee,
and the right and burden thus created will respectively pass
to, and be binding on, all subsequent grantees of the respec-
tive parcels of land," ^
SECTION VII.
MISCELLANEOUS EASEMENTS AND SERVITUDES.
1. Easement to pile logs, &c. for the use of a mill.
2. Easement of placing boxes, &c. in using a store.
3. Custom of turning teams on land in ploughing.
4. Easement of drying clothes in another's yard.
6. Prescriptive right to dockage and wharf.
6. Easement of carrying away iron ore, &c.
7. Easement of taking sea-weed on a beach.
8. Right to throw rubbish in a stream.
9. Reservation of grass and herbage, a servitude.
10. Easement of a right of common.
11. How far common of cutting timber, &c. is apportionable.
12. Possession of the two estates suspends easement of common.
13. Easement of a town to dig stone on another's land.
14. Easement of a town to use parish buildings.
15. Right to lay gas-pipe an easement in a gas company.
16. Servitude of maintaining fences to land.
17. Pew rights and burial rights, how far easements.,
1. Among the casements which have been recognized by
the courts of common law, as known to and governed by its
rules, is that of piling logs and lumber for the accommoda-
tion of a saw-mill, on land to be used as a yard for such
mill.2
*2. So is that of placing boxes or bales of mer- [*510]
chandise, for the purpose of drawing them into a
store by a windlass over a way. And the same is true of
1 Whitney v. Union Railway Co., 11 Gray, 3.59; 2 Washb. Real Prop. 33.
See also Plills v. Miller, 3 Paige, 254, 2.57 ; ante, p. *63, pi. 44.
2 Gurney v. Ford, 2 Allen, 576 ; Pollard v. Barnes, 2 Gush. 191.
696 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV.
a right to swing shutters of a store, and the like, over a
way.i
3. So adjoining owners of unenclosed lands may acquire,
by custom, a right to turn their teams, in ploughing, upon
each other's land, the same being a reasonable and useful
custom.^
4. So one may have an easement to hang clothes to dry
in another's yard, or use a neighboring wall to support a
clothes-line for that purpose.^
5. So one may acquire a prescriptive right of dockage
upon another's land, or of bringing vessels up to a wharf
and laying them along the side of the same.*
One may gain a right to maintain a wharf below low-
water mark by prescription against the Commonwealth, but
the owner could not thereby acquire any exclusive rights
beyond the limits of the wharf itself.^
6. So one may have an easement to dig and carry away
the iron ore in a certain parcel of land. Such a right is an
incorporeal hereditament, and can only be erected by grant
or reservation in a deed.''' The distinction and limitation as
to this right, as adopted by the courts of Iowa, seem to be
this. If one by parol license grant a mine to another, who
goes on and works it, and expends money in structures, &c.,
for carrying it on, and in excavations, and be expelled with-
out notice and compensation for such expenditures, he may
recover possession of the mine by a writ of ejectment. If the
grant be of a privilege to dig ore, it is regarded as an incor-
poreal hereditament, and ejectment would not lie." But if
there be an open mine upon premises in possession of a ten-
1 Kichiinlson i\ Pond, 15 Gray. See also United States v. Applcton, 1
Sumn. 492 ; O'Linda v. Lothrop, 21 Pick. 292, 297.
- Jones V. Pcrcival, .5 Pick. 485 ; Pain v. Patrick, 3 Mod. 289, 294.
^ Drewcll v. Towler, 3 Bariiew. & Ad. 735.
* Sargent v. Ballard, 9 Pick. 251 .
6 Gray v. Bartlett, 20. Pick. 186.
c Arnold i;. Stevens, 24 Pick. 109.
7 Beatty i'. Gregory, 17 Iowa, IIG; Bush v. Sullivan, 3 Green (Iowa) 344.
Skct. 7.] MISCELLANEOUS EASEMENTS AND SERVITUDES. 597
ant, ho would have a riglit to work it, whether he he tenant
for Hfe, years, or a single year.^
7. One may have a right to take sea-weed upon a particu-
lar beach, provided he can claim it as appurtenant to a part
of an estate once embracing the beach. If such is granted
as appurtenant to an estate, it cannot, however, be separated
from the land to which it is appurtenant so as to become a
right in gross, under which one may gather such weed for
purposes of sale. Such conveyance of the right to a stranger
would either be a void grant, or extinguish the right. But
no change in the beach itself, so long as one remains, can
affect the right to the sea-weed accumulating upon it which
one has acquired as an easement. On the other hand, it is
not requisite that the owner of the land to which the right is
appurtenant should exercise it solely in reference to
*expenditure or use upon that particular land. He [*511]
may when it is gathered, use it upon that or other
land, or may sell it to others.'^
Ordinarily the sea-weed which is thrown upon the flats,
islands, or mainland bordering upon the sea belongs to the
owner of the land.-^ But the right to take it may be
acquired by prescription, or otherwise, as an incorporeal
hereditament.^ But whether it can be gained in gross,
irrespective of the ownership of any estate to which it is
appurtenant, does not seem to be well settled. In one case-^
the court say such a right may be personal, and a man may
claim it by long continued enjoyment by himself and his
ancestors or grantors, while, in the case of Phillips v. Rhodes
(^sup.^, the court express doubt if it can be acquired as a
personal one, independent of a que estate. And the case of
Weekly v. Wildman is referred to, where Treby, C. J. says of
a right of common : " Although a right of common sans
1 Freer v. Stotenbur, 36 Barb. 641.
2 riiillips V. Rhodes, 7 Mete. 322.
'^ Emans v. Turnbull, 2 John. 313; Hill v. Lord, 48 Maine, 96 ; Phillips v.
Rhodes, 7 Met. 323.
* Hill V. Lord, sup. ^ Hill v. Lord, sup.
598 THE LAW OF EASEilENTS AND SERVITUDES. [Cii. IV.
nombre may be granted at this day, yet such grantee cannot
grant it over.^ But the case of Goodricli v. Burbank^ may
perhaps be thought to favor the idea of an independent
property in such an easement as that of taking sea-weed.
8. So one may acquire a right by prescription to throw
the washings of sand and rubble made in working a tin-mine
into a stream running through another's land, though he
thereby cause the water to overflow the other's land/^
9. A reservation in a grant of land of the '•' grass, herb-
age, feeding, and pasturage," gives the grantor, and all
persons representing him, a right to enter with their cattle
and depasture the land as a servitude or easement created
by the acceptance of the deed containing such reservation.^
But it seems that one may not prescribe for the exclusive
use of the herbage upon another's land as appurtenant to
his own land,^
10. A right of common in another's land is also treated
as an easement.'^
But so far as this doctrine is applicable to this country, it
is not believed to be necessary to do anything more than
briefly notice the general rules in respect to the more
familiar kinds of common.
In New York, lands may, by statute, be suffered to lie
common by any one who chooses not to fence them, but
it does not create a common-law right of common in the
same in favor of third persons.^
In Illinois there are lands granted as commons to towns,
hamlets, and villages, and by law always to remain common
to the inhabitants of such town or village. Lands, accord-
ingly, granted by the French government and confirmed by
1 Weekly v. Wililman, 1 Ld. Raym. 407.
2 Ante, p. *11, pi. 12 a.
^ Carlyon v. Lovcrinrr, l llurlst. & N. 784.
* Rose V. Bunn, 21 N. Y. 27.5.
5 Donnell i'. Clark, 19 Me. 174, 182.
6 Per Watson, B., Rowbotham v. Wilson, 8 Ellis & B. 143; Thomas v.
Marshfield, 10 Pick. 364 ; Livin^^ston v. Ten Brocck, 16 Johns. 14, 25.
^ Perkins v. Perkins, 44 Barb. 134.
Skct. 7.] MISCELLANEOUS EASEMENTS AND SERVITUDES. 599
the U. States to the inhabitants of the village of C, were
held to be for the use and enjoyment of such only as were
inhabitants of that village, and could not be conveyed to
others. By village was to be understood a small assemblage
of houses occupied by artisans and the like.^
But it was held in Missouri, that commons belonging to
towns in that State, might be lost to the public by an adverse
possession in an individual inhabitant suflTiciently protracted.'-^
In Thomas v. Marshfield the question arose upon a claim
for compensation for taking certain land for public use.
The court say : " There seems to be no doubt that a right of
common of pasture is such a title in the land as may sustain
a claim for compensation under the statute. A commoner is
not the absolute owner of the soil, but he has a special and
limited interest in it He (the plaintiff in that case)
relies on two titles : first, a title by prescri|>tion to a right
of common as appurtenant to his farm ; second, a title by
grant," &c.
*A common, it is said, imports a privilege to take [*512]
a profit in common with many. The common known
in this country, it is believed, would come under the class of
what is appurtenant, and has its origin in grant. And of
course the extent of the right, the character and number of
animals to be fed, and the like, must be regulated by the
terms of the grant or the right acquired by prescription.
The commoner has no interest in the soil where he takes his
common. And if he purchases the land in which he has
common, it will operate as an extinguishment of the right as
being any longer appurtenant to the other estate."^
11. A question arose in Livingston v. Ten Broeck, whether
a common of " cutting and hewing timber for building "
could be apportioned by alienation of a part of the land to
which it is appurtenant ; and it was held that it could be.
1 Hehert v. Lavalle, 27 111. 448.
'■^ Funkhouser v. Lingkopf, 26 Mo. 453.
^ Coin. Dig., Common, A, C, II, L.
GOO THE LAW OF EASEMExNTS AND SERVITUDES. [Cii. IV.
But in that case Livingston granted a certain farm to
Wessels, with a privilege of grazing his cattle, and of cutting
and hewing of timber for building or firewood on the manor,
and the defendant held title imder Wessels. The owner of
the granted premises, to which the common belonged, con-
veyed a part of them to the owner of the manor, out of
which the common is claimed, so that there was a unity of
title to a part of the two estates in him, and the question
was if such conveyance did not extinguish the right alto-
gether, on the ground that the party having this right could
not, by releasing a part of the land, throw an increased
burden upon the remaining part of the land. The court
held that it operated to extinguish the right altogether.
" There would be an extinguishment of the right of common
in part, by the unity of title in one and the same person to
part of the land entitled to common, and a part of the land
out of which common is to be taken, and then the principle
applies, that if common appurtenant be extinct in part, it is
entirely gone." The question turned, it will be
[*513] *perceived, upon the distinction between conveying
a part of the right of common by conveying a part
of the estate to which it belonged, and extinguishing it alto-
gether.i
12. And upon the same principle, if the one having a right
of common appurtenant take a lease of a part of the estate
out of which he has the right of common, all his common
shall be suspended during the term.-^
But where a right of common has been extinguished by
unity of possession, it may be revived, if a grant be made of
the estate which had previously enjoyed it, " with all common
therewith used or enjoyed." But it is in the nature of a new
grant.^
1 Livingston v. Ten Broeck, 16 Johns. 14, 27 ; Tirring-ham's case, 4 Rep. 36 ;
llothcrhann v. Green, Cro. Eliz. 593 ; Com. Dig., Common, L; Co. Litt. 122 a;
^Vild's case, 8 Rep. 79.
'^ Wild's case, supra; Cora. Dig., Common, M.
* Com. Dig., Common, ; Bradsliaw v. Eyre, Cro. Eliz. 570.
Sect. 7.] MISCELLANEOUS EASEMENTS AND SERVITUDES. GOl
13. A riglit of easement may be acquired by tlic inhab-
itants of a town to dig stones from a parcel of land for the use
of such persons as belong to the town, as was the case in
Worcester v. Green,^ and Green v. Putnam,^ where the pro-
prietors of a township voted " that one hundred acres ])c left
common for the use of the town for building-stones," It
was held not to pass the fee, but merely the right to take the
stones for building purposes, that interest ])cing in the town
as a corporation, in trust for the individual inhabitants.
There may, therefore, be a trust in an easement in lands
in the same manner as in the freehold of the land itself.
14. So a town may, by adverse user, acquire a right of
easement in a parish meeting-house, to hold public meetings
therein. But if such meetings were held by permission of
the parish, it would lay no foundation for such a claim.-^
15. A right granted by charter to a gas company
to lay *gas-pipcs in the streets of a city is an ease- [*514]
ment, and not a mere license.*
16. There are rights in respect to fences which tlie owners
of lands may acquire or be subject to by prescription, where-
by one may become liable to support and maintain a division
fence between the two parcels of land, or a particular part
thereof. And this is regarded as an easement in favor of
the one estate, and a servitude Tipon the other. •'^
But while there would probaljly be little diversity in ap-
plying the doctrine of prescription as to fences when once
established, it is not clear that all courts would agree as to
what amounted to such a prescription. Thus it seems, from
tlie cases stated in Vincr, tliat prescription arises in cases
1 Worcester v. Green, 2 Pick. 425.
'■^ Green v. Putm.in, 8 Cash. 21.
3 Medford v. Pratt, 4 Pick. 222.
* Providence Gas Co. v. Thurher, 2 R. 1. 1.5.
5 Star V. Kookesby, Salk. 3-35 ; Boyle v. Tamiyn, 6 Barnew. & C. .329 ; Rust
V. Low, 6 Mass. 90 ; Dyer, 29.") b, pi. 19 ; Heath v. Ricker, 2 Me. 72 ; Sury v.
Pigot, Poph. 1G6; 2 Dane, Abr. 658, 660; Binney v. Hull, 5 Pick. .50.3, 505;
Thayer v. Arnold, 4 Mete. 589.
602 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. IV.
where one of two adjoining owners, and those under whom
he claims, " have used to make it (the fence) time out of
mind," or where the fence between two closes has time out
of mind been repaired by the tenant of one of them.^
In Rust V. Low, svp., the court recognize the doctrine of
prescription in respect to maintaining fences, and speak of
ancient assignments offence viewers, and also ancient agree-
ments made by tlie parties which may have once existed and
are now lost by lapse of time, as among the grounds upon
which such prescription may rest. And in Binney v. Hull,
sup., the court rely upon the fact as establishing prescrip-
tion, that the party and his ancestors had maintained the
fence in question for fifty-six years, at the commencement of
which period it was an old fence, carrying back the obliga-
tion beyond the time of memory. In Adams v. Van Alstyne,
the court hold that there may be a valid prescription in such
cases. " Nor do I doubt," says the Judge, " that when such
a prescription is established, it fastens itself upon the land
charged with the burden and in favor of the tenements bene-
fited by^it. It is the usual case of a servitude in lands, the
law concerning which has been adopted by the common law
from the civil law, and every part of the premises charged
with the burden called the servient tenement, is as much
bound as the whole of the original premises were, and every
part of the dominant tenement is entitled to claim the benefit
of the charge against the premises bound." But under the
facts of that case, the prescription was not established. The
facts were, that from time immemorial there had been a
fence between the farms of L. and H., the western half had
been supported by H. and his predecessors, and the eastern
half by L. and liis predecessors. Upon the death of H., his
farm was divided between his two heirs, the west half going
to one and the cast to the other. The plaintilF claimed
under L., and the defendant under one of those heirs, and
the (question was if the successors of L. and H. were bound,
J Viiier Ah. Fences K. p. 1G4, lOG ; -> Dune. Ahr. 060.
Sect. 7.] MISCELLANEOUS EASExMENTS AND SERVITUDES. 603
by prescription, to maintain the parts of the fence which
their predecessors had done. But the court held that, as
each of the original proprietors was bound to maintain half
of tlie division fence, their acts in so doing were to be re-
garded as liaving been done by mutual arrangement and not
under any adverse claim, nor any acquiescence by cither in
any encroachment by the other, and when new owners came
into possession of one of the farms, a new arrangement or
division became necessary, since there was no ground of
prescription of grant or covenant that the particular half of
the fence should be perpetually supported by either of the
adjacent owners.^
A similar doctrine was maintained by the court of Connect-
icut, as to the effect to be given to a long-continued custom
or usage of two adjacent proprietors as to keeping a division
fence between their lands in repair. If done by mutual
agreement, it does not run with the land like a covenant to
bind third parties who neither knew nor concurred in the
same. It does not sustain a prescription.^
But if a grantor, in terms, when granting land by deed,
covenant for himself, his heirs and assigns, to fence the
premises, it would be a covenant which runs with the estate,
and binds successive owners.^
Where one is bound to build and maintain a fence be-
tween his own and an adjoining lot of land, he may place
one half of it, if of reasonable dimensions, upon his neigh-
bor's land.^
At common law, whenever there was a prescription to
fence, it was enforced by a writ of curia claadenda, sued out
by him in whose favor it existed, against him who was
charged with the support of sucli fence, in which he could
recover damages for his failure to make or maintain the
same. But when bound by prescription to fence his close,
1 Adams v. Van Alstyne, 25 N. Y. 232, 237.
- Wii<?lu V. Wright, 21 Con. 242.
3 Easter v. L. M. R. li., U Ohio St. 48.
* Newell V. Hill, 2 Mete. 180.
604: THE LAW OF EASEMENTS AND SERVITUDES. [Cn. IV.
the owner was not required to do this against any cattle but
those wliich were rightfully in the adjoining close. ^
And in this connection the case of Rose v. Bunn may be
referred to, where it was held that, if one grant another
land, reserving the right of pasturage upon the land, and
afterwards tlie grantee cultivates any part of it for the
growth of a crop of grain, it is incumbent upon the one who
sows the grain to protect his crop by fences against the cattle
of the one who owns the right of pasturage.^
[*515] *17. Rights of burial in churchyards, and pew
rights in churches, although acquired by deed of a
particular lot, or pew, are only easements in land belonging
to the religious society which owns the church and church-
yard. It is an easement in, and not a title to, a freehold,
and is to be understood as granted and taken subject, with
compensation of course, to such changes as the altered cir-
cumstances of the congregation or the neighborhood may
render necessary.
In all these cases supposed, the general property in the
house and land is in some society or body politic, and the
doctrine as to burial rights does not apply to cases where the
grave is in a separate independent cemetery.^
And yet the interest of a pew-holder is of such a character
that he may have trespass qu. cl. against any one who shall
enter the same against the consent of the owner, on any of
those occasions for which pews are designed to be used.
But this may probably be referred to the character of the
property in them which has been given by the statutes of the
State in which the question arose.^
1 Rust V. Low, supra ; 2 Dane, Abr. 658, GGO.
'■^ Rose V. Bunn, 21 N. Y. 279.
The subject of fences is also regulated by statute in England, and in the several
States of this country ; but for obvious reasons these, as well as the cases arising
under tliem, have been purposely omitted in this work.
" Richards v. Dutch Churcli, 32 Barb. 42; Gay v. Baker, 17 Mass. 435;
Daniel v. Wood, 1 Pick. 102 ; Bryan v. Whistler, 8 Barnew. & C. 288? Downey
r. Dee, Cro. Jac. 605.
* Jackson V. Rouiiseville, 5 Mete. 127.
*CH AFTER V. [*516]
OF LOSS OE EXTINGUISHMENT OF EASEMENTS, ETC.
Sect. 1. Effect of the Unity of the two Estates.
Sect. 2. Effect of conveying one of two Estates in revivinp; former Ease-
ments.
Sect. 3. Of Changes in Estate affecting Rights of Easement.
Sect. 4. Of Acts of Owners of Easements affecting Rights to the same.
Sect. 5. Effect of abandoning an Easement.
Sect. 6. Effect of non-user of Easements.
Sect. 7. Effect of a License upon an Easement when executed.
SECTION I.
EFFECT OF THE UNITY OF THE TWO ESTATES.
1. Easements extinguished by actual or constructive release.
2. Unity of tlie two estates operates a release.
3. The unity must be of title and possession.
4. Such unity extinguishes the easement.
5. Ritger v. Parker. Unity in mortgage no extinguishment.
6. No extinguishment if title to one of the estates fails.
7. Hinchlifte v. Kinnoul. Effect of unity of reversions.
8. Effect of destroying the easement while the estates are iinited.
1. As easements may be acquired by actual or construc-
tive grant in various forms, as has been shown, so tliey may
be surrendered, lost, or extinguished by actual or constructive
release. Among these would be a release in terms by deed
by the owner of the dominant to the owner of the servient
estate. It is hardly necessary to illustrate this proposition
by decided cases. But there are often such relations in the
606 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. V.
ownership of the two estates as will have the same
[*517] effect as *a direct release, which may require a word
of explanation. Such would be the effect of a union
of ownership of the two estates in one person. So while
there are various acts of ownership which serve as evidence
of title to an easement, after long repetition, there are acts ,
and omissions on the part of the owner of the dominant
estate which are deemed to be evidence of the servitude
upon the servient estate having been released or surrendered
to the owner thereof.^
2. To give something like a classification of the modes by
which easements may be lost or extinguished by acts of the
owners of the two estates, the effect of the unity of these in
one person will first be considered.
As no one can be said to use one part of his own estate
adversely to another part, the proposition is universally true,
that if the owner of one of the estates, whether dominant or
servient, becomes the owner of the other, the servitude which
one owes to the other is merged in such ownership, and
thereby extinguished.
This mode of losing or extinguishing an easement is
known to the French law under the name of Confusion,
which they borrowed from the language of the civil law.^
3. But the proposition thus far assumes that both estates
become united in title and possession in one man, whereby
each has alike all the incidents of a common ownership.
And this might and would be true to a limited extent, if the
possession only of the two estates were united in the same
person. So long as such possession should continue united,
the easement in favor of the one and the servitude upon the
other would be suspended, iiiasmuch as the occupant has a
paramount right to enjoy them in such manner as he pleases.
But when such possession terminates, as, for instance, by the
expiration of a term of years, or of a life for which the teu-
1 Pardcssus, Traitd dcs Servitudes, 411.
2 Il)id. ; 3 Biirge, Col. & F. Laws, 445 ; D. 8. 6, 1.
Sect. 1.] EFFECT OF THE UNITY OF THE TWO ESTATES. GOT
ant may have held tlic estates, tlie incidents of ease-
ment and *scrvitude belonging to them at once re- [*518]
vive. The unity of title and possession of the two
estates, therefore, which operates an extinguishment of an
casement in the one upon or over the other, can only have
that effect where the same proprietor has a permanent estate
in l)oth tenements not liable to be defeated by the perform-
ance of a condition, or the determination of a determinable
fee by the happening of some event beyond his control, and
where the estates cannot be again disjoined by operation of
law.^
4. But where there is a union of an absolute title to and
possession of the dominant and servient estates in the same
person, it operates to extinguish any such easement abso-
lutely and forever, for the single reason that no man can
have an easement in his own land.^
5. In the case above cited of Ritger v. Parker, J. G. con-
veyed one of the parcels to M. G. in mortgage, in 1836,
who took possession under the same to foreclose it, in
1841, and in 1842 conveyed it to Parker. The other parcel
was conveyed to J. G. in 1839, who mortgaged it to M. G.
in 1839, and possession to foreclose was taken at the same
time with that under the other mortgage in 1841. The
same was foreclosed by M. G. in 1844, who conveyed the
estate to the plaintiff. It will be perceived that J. G. held
an equity of redemption in both parcels, from 1839 to 1844,
and that M. G. held mortgages upon both parcels, from
1 Ritger v. Parker, 8 Cush. 14.5; Canham v. Fisk, 2 Crompt. & J. 126;
Thomas v. Thomas, 2 Crompt. M. & R. 34, and reporter's note ; Tyler v. Ham-
mond, 11 Pick. 193, 220; James v. Plant, 4 Adolph. & E. 749 ; Hazard v. Rob-
inson, 3 Mason, 272 ; Keiffer v. Imhoff, 26 Pcnn. St. 438, 443 ; Woolr. Ways,
74 ; Pardessus, Traite' des Servitudes, 442 ; Manning v. Smith, 6 Ck^nn. 289,
291 ; Pearce v. M'Clenaghan, 5 Rich. 178.
2 Hancock v. Wentworth, 5 Mete. 446; Gayettyi'. Bethune, 14 Mass. 53, .5.5;
Grant v. Chase, 17 Mass. 443; Canham v. Fisk, 2 Crompt. & J. 126; Robins
V. Barnes, Hob. 131 ; Hazard v. Robinson, 3 Mason, 272; Sury v. Pigot, Poph.
166; Packer v. Welstead, 2 Sid. 39; Keiffer v. Imhoff, 26 Penn. St. 438, 442;
Lalaure, Traite' des Servitudes Re'elles, 63; Atwater v. Bodfish, 11 Gray, 152.
608 THE LAW OF EASEMENTS AND SERVITUDES. [Cir. V.
1839 to 1842, when she assigned one of them to the defend-
ant Parker. And it was contended that here was
[*519] *sach a unity of title and possession, as to extingush
an easement of way that had existed in favor of one
parcel over the other. But the court held otherwise. So
long as M. G. held them, they were both defeasible estates,
and defeasible upon different conditions. One might have
been redeemed and the other foreclosed, and redemption or
foreclosure of either would have effected an entire separation
of the two, each retaining its own incidents. And when
actually foreclosed, one estate belonged to one man and the
other to another.
When a mortgagor or the assignee redeems, he regains tlie
estate just as it existed when he made the mortgage. The
operation of the mortgage is defeated by force of the condi-
tion, and he takes the estate with all the incidents and bene-
fits, and subject to the servitudes to which it was subject
when the mortgage was made. And no lease, change, or
encumbrance made by the mortgagee can be set up against
the claims of the mortgagor. The estate is restored un-
changed.
So if the mortgage is foreclosed, the estate which was con-
ditional and defeasible in its creation becomes absolute, and
the incidents, privileges, and covenants attached to it, un-
changed by anything which the mortgagor or any other
person may have done in the mean time, remain attached to
it as if the original conveyance had been absolute. M. G.
then never had, at any one time, an unconditional, indefeasi-
ble interest in the then two estates. She held mortgages on
both at the same time, after having entered on both for con-
dition broken, but before foreclosure. This was not the
unity required to constitute a merger. Before foreclosure,
she conveyed one of the estates to the defendant. It is clear
that, at the time of the foreclosure, the estates were held by
different owners in fee.^
1 Sue Ballard v. Ballardvale Co., 5 Gray, 471; Curtis v. Francis, 9 Cush.
427, 457 ; I'ardcssus, Traite des Servitudes, 445.
Sect. 1.] EFFECT OF THE UNITY OF THE TWO ESTATES. GO 9
*6. So if the title to one of the estates fail in the [*520]
hands of the joint owner of the two, the easement of
the one in the other revives upon the failure of such title. ^
7. In Hinchliffe v. Kinnoul, which has already been no-
ticed in another connection, the ancestor of Earl G. made a
lease in 1728 of open and unoccupied land, which expired
in 1824. Upon this parcel many houses liad boon built by
various sub-lessees, and, by the terms of the lease. Earl G.
would then have had the entire lands, houses, tfec, and if,
in the mean time, any easements had been acquired in favor
of one of these parcels upon or over another, the same, upon
such union of title and possession, would have been, at the
time of such union, extinguished.
The plaintiff held one of these messuages, and the defend-
ant the adjoining one, and over this the plaintiff claimed
easements of passage of a coal-shute and of a watercourse.
The titles of these two messuages were as follows. Mrs.
Forrester held the plaintiff's by a lease which was to have
expired in 1822. In 1799 she let the same to Mrs. Hinch-
liffe for a term ending in 1820, with the appurtenances
thereto belonging. Of course the immediate reversion of
Mrs. Hinchlifte's term was in Mrs. Forrester, the remote one
in Earl G.
The other messuage came to Hampden by a lease in 1793,
to expire in 1824, subject, as above stated, to Earl G.'s re-
version, to whom all the leases would fall in, in 1824.
In this state of the ownership. Earl G., in 1819, let the
plaintiff's messuage to him for fifty-seven years, to hold from
and after 1824, the plaintiff having been in possession of the
premises under an under-lessee of the original lessee for
some years before 1819. And in 1822 Earl G. made a lease
of the defendant's messuage to Hampden for sixty-one years,
to commence in 1824, both said leases, of course, being of
reversionary interests on the part of Earl G,
*One question made in the case was, whether [*521]
1 Tyler v. Hammond, 11 Pick. 193, 290 ; Pardessus, supra, 446.
39
610 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. V.
the unity of title to both messuages in 1824 in Earl G.,
under whom both parties claimed, did not extinguisli the
right of easement which one messuage had acquired in the
other ? But the court held that there was no such unity of
possession as would operate upon the right of easement.
Earl G. had only a reversionary right to the premises when
he made the leases in question. And it was further held,
that the easements mentioned, being necessary to the enjoy-
ment of the plaintiff's messuage, and something which Earl
G. could then grant, his lease of the messuage passed these
easements as incident or appurtenant to the messuage of the
plaintiff, because they were in existence and necessary to its
enjoyment. And, as to the supposed unity, the court say :
"In consequence of Earl G.'s reversionary lease of the
messuage in 1819, the right to the possession of both proper-
ties was severed, and there could be no unity of possession
of both the messuage and the passage in him ; and if so, it
is obvious that he could not, by his subsequent grant, dero-
gate from a former valid grant which he had already made."
The facts of the case are numerous and complicated, and it
is not easy to present the points settled in it in a simple and
intelligible form. But it will serve the present purpose to
state that in substance the court held, that, as by long en-
joyment the tenant of one messuage had acquired an ease-
ment in the adjoining messuage while in the occupancy of
another tenant, which easement was necessary to the enjoy-
ment of the first messuage, the mere ownership of both
messuages in reversion by one and the same man did not
create a unity of title and possession to the two in him, so
but that when he leased them separately, to take effect at a
future time, when his reversion fell in, he leased them in the
state they were then in, with the easement appurtenant to
one and the servitude upon the other. ^
[*522] *8. Although there is no limitation to the propo-
sition that, because no man can have an easement
1 Iliiichliffc r. Kiimoiil, 5 Biiig. n. c. 1.
Sect. 1.] EFFECT OF THE UNITY OF THE TWO ESTATES. 611
for one parcel of his land in or over another, whenever two
estates whicli have been dominant and servient in other
persons' hands become his by a joint absolute ownership
and possession, all easements and servitudes previously
existing between them are thereby extinguished ; it will
hereafter appear that the effect of again separating the
ownership of these estates in reviving these easements varies
essentially according to the nature and character of these
easements. In some cases the law, in order to give effect to
a grant, restores the former easement to the estate granted,
wdiilc in others this can only be done by express terms in the
deed.
And whether an easement shall revive or not upon the
alienation of one of the estates, may depend upon the
act of the owner while holding both. If, for instance, the
former easement consisted of an artificial trench of water,
or of pipes for an aqueduct, by whicli water is conducted
over or from one parcel to the other for the benefit of the
latter, and the owner while in possession of both were to fill
up the trench or cut off the aqueduct, and were then to
convey what had been the dominant estate, by itself, it
would, in order to revive the former easement, be necessary
to grant it in express terms.^
And the same principle would apply if, while two estates
were in the ownership of the same person, and they consisted
of mills upon the same stream, the owner were to so arrange
the operation of the two as to increase the power of the one
by flowing back water upon the other, whereby the power of
the latter was partially destroyed, and he should then sell
the upper estate by itself, the original easement which it had
enjoyed would not be restored thereby beyond its then exist-
ing condition.^
1 Nicholas v. Chamberlain, Cro. Jac. 121; Sury v. Pigot, Poph. 166; ante,
313.
2 Hazard v. Robinson, 3 Mason, 272.
612 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. V.
[*523] *SECTION II.
EFFECT OF CONVEYING ONE OF TAVO ESTATES IN REVIVING
FORMER EASEMENTS.
1. Subject stated and limited.
2. Natural easements revive on dividing estates.
3. So do easements which are necessary.
4. What the consideration of the subject assumes.
5. Such easements only revive as are apparent.
6. Easements revive by reservation as well as grant.
7. Easements extinguished do not pass by the term appurtenant.
8. What easements pass with an estate, though not named as appurtenant.
9. How far such easement must be necessary to the estate.
10. Duncklee v. Wilton Railroad. Same subjects.
1. Though the law intended to be considered under this
head must obviously have many analogies with the general
subject discussed in a former part of this work, the effect of
dividing heritages in creating easements or servitudes in
one part in favor of the other, there seemed to be a propri-
ety in treating, as a separate topic, the case of two estates
in respect to which easements may have once existed, but
which have subsequently been extinguished by a union of
the two in the same ownership and possession. The ques-
tion in such case arises as to the effect of a conveyance of
one of these estates by such owner, retaining the other him-
self, or of a separate conveyance of each estate to two differ-
ent owners. Do the easements or servitudes in such a case
revive thereby, as they had existed in relation to each estate
before they had been extinguished by unity of title and pos-
session, or by what line and limit is the rule determined in
regard to such easements reviving upon the conveyance of
one or both of the estates ?
2. So far as the easements come within what are called
natural, like the flow of water in a natural stream from one
to the other, or that class which grows out of locality, like
the discharge of rain or surface water from a higher upon a
Sect. 2.] REVIVING EASEMENTS BY CONVEYING ESTATES. 613
lower field, they would revive in respect to each other,
the * moment the ownership and possession of the [*524]
two parcels had passed to different hands, because,
as has been heretofore sliown, they exist jure naturae, and
are incidents of property in the several parcels.^
3. The same would be true of such easements as are
necessary to the enjoyment of the one parcel or the other,
as in the case of ways ; though by making the new grant in
such a case, it is rather the creation of a new right of way
by implication, than the reviving of a former one, and ways
thus created are appurtenant only so long as the necessity
continues.^
4. This subject, it will be perceived, assumes two things :
first, that the owner has done nothing while holding both
estates to destroy the existence of what was once an ease-
ment, like cutting off the pipe of an aqueduct, for instance ;
and, second, that, in making his conveyance of the one or
the other estate, he makes no specific reference in his deed
to what is claimed as the easement. From this arises the
question which is now under consideration. What must be
the situation of the two estates, and what the character of
the easement, to have a simple conveyance of the one estate
or the other revive and pass it, or reserve it as an appurte-
nant to the dominant estate ?
5. In the first place, in order to pass with an estate, the
easement, in the case supposed, must be an apparent one.
Among the cases illustrative of this, that of Seibert v. Levan
may be referred to, where the owner of two closes, upon one
of which he had a mill, and upon the other the dam and
pond of water by which it was operated, conveyed the latter,
it Avas held that his grantee took it subject to the servitude
of the dam and right of flowing a pond for the use of the
dam.^
1 Dunklee v. Wilton R. R. Co., 4 Foster, 489, 497 ; Sury v. Pigot, Poph. 166.
2 Grant v. Chase, 17 Mass. 443, 448 ; Jenk. Cent, case, 37; Pomfret ;;. Ri-
croft, 1 Wms. Sauml. 323, n. 6.
3 Seibert v. Levan, 8 Penn. St. 383, 387.
614 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. V.
[*525] *Anotlier would be the case of two mills upon the
same stream belonging to the same owner, so ar-
ranged that the water of the pond of the lower mill flows
back upon the wheel of the upper one, if he were to convey
the upper mill, describing the premises as so much land with
a mill and privilege, the purchaser would take it subject to
the effect of the lower works upon its operation. ^
The same principle has been extended to cases of lights,
air, gutters, eaves' drip, and the overhanging of the eaves of
a house upon the adjoining estate, where one or both these
adjoining estates are conveyed by a common owner, though
in tlie matter of light and air it should be remembered, the
common law does not prevail in several of the United States.^
So the doctrine has been applied to the case of one parcel
of land drained through another by an artificial ditch, cut
from the former through the latter, to a canal into which
the water was discharged. These two parcels had come to
the same owner by different purchasers, and of course, while
held by him, this right of drain became extinct as an ease-
ment. But upon his conveying the first-mentioned parcel
separately, it was held that the right of drain as an ease-
ment revived, and passed as appurtenant to the parcel thus
conveyed.^
A like principle is also said to apply to the case of a way,
not strictly of necessity, but which has been used from one
parcel across another to a church or a mill and the like, both
parcels having been owned by the same person. If he should
convey the intermediate close, there would be at once an
easement of way from the other close to the church
[*526] *or mill, across it, without any words of grant con-
veying the same in terms.*
1 Gary v. Daniels, 8 Mete. 466, 480, 482 ; Hazard v. Robinson, 3 Mfeon,
172.
2 Robins v. Barnes, Hob. 131 ; ante, p. 44 ; Nicholas v. Chamberlain, Cro.
Jac. 121 ; ante, p. 392.
3 Ferguson v. Witscll, 5 Rich. 280. See Shaw i'. Ethridgc, 3 Jones (Law),
300; Dodd v. Burchell, 1 H. & Colt. 121.'
* Seibert v. Lcvan, 8 Pena. St. 383 ; Sury v. Pigot, per Doddridge, 3., Poph.
Sect. 2.] REVIVING EASEMENTS BY CONVEYING ESTATES. 615
6. It may be stated here that the same rule applies as to
reviving an easement by conveying one of the estates,
whether the parcel conveyed be the dominant or servient
estate. If it be the dominant, the easement over the other
passes as appurtenant to it. If it be the servient, the ease-
ment is created in favor of the dominant remaining in the
grantor's hands, by way of reservation. The authorities
upon this point are Seibert v. Levan, above cited, and Dunk-
lee V. Wilton Railroad,^ controverting if not overruling the
doctrine of Burr v. Mills- and Preble v. Reed,-"^ which make
a distinction between an easement being raised by a grant of
the dominant estate, and the case of a reservation by the
grantor of the dominant estate.
The language of Jevvett, C. J. in French v. Carhart, may
probably be taken as a sound principle, that a " reservation
should be construed in the same way as a grant by the
owner of the soil of a like privilege The sound and
reasonable rule is, that whatever is necessary to the fair en-
joyment of the thing granted or excepted, is incidentally
granted or excepted." ^
7. It should be remembered, moreover, that in giving
effect to a deed of one of two parcels, in respect to a way,
for instance, nothing results from a general clause granting
therewith all ways appurtenant to the granted premises.
When the two estates came to be united in the same owner-
ship and possession, the way was thereby extinguished, and
of course ceased to be any longer appurtenant, and could
only be made so again by express grant. It was ac-
cordingly *held, in James v. Plant, that, " where [*527]
there is a unity of seizin of the land and of the way
166, 172 ; Jordan v. Atwood, Owen, 121 ; 1 Rolle, Abr. 936 ; Woolr. Ways, 71 ;
Phillips V. Phillips, 48 Penn. 178, 186 ; 1 Jenk. Cent, case, 37 ; Leonard v. Leon-
ard, 2 Allen, 543.
1 Dunklce v. Wilton R. R. Co., 4 Foster, 489.
2 Burr V. Mills, 21 Wend. 292.
3 Preble v. Reed, 17 Me. 169. See also ante, p. 36; Guy v. Browne, F. Moore,
C44 ; Nicholas v. Chamberlain, Cro. Jac. 121.
* French v. Carhart, 1 Comst. 103, 104.
616 THE LAW OF EASEMENTS AND SERVITUDES. • [Cif. V.
over the land, in one and the same person, the riglit of way-
is either extinguished or suspended, according to the dura-
tion of the respective estates in the land and the way ; and
after such extinguishment, or during such suspension of the
right, the way cannot pass as an appurtenant, under the
ordinary legal sense of that word." ^
The same doctrine was applied to the case of an aqueduct
from one parcel to another, the ownership of both estates
having come to the same person, who subsequently conveyed
the estate for whose benefit the aqueduct was designed,
"with all appurtenances." 2
The last-mentioned case is cited to sustain the effect to be
given to the word appurtenances in a grant in passing artifi-
cial easements with one of two estates, wliere the easement
had been extinguished by unity of seizin ; for it is not clear,
to say the least, that the right of aqueduct in that case would
not have passed as being an apparent continuous ease or ben-
efit which one part of the joint estate had in the other at the
time of the conveyance, upon the principle of other cases
already cited.
The doctrine that an easement, extinguished by unity of
seizin of the estates, may not pass with one of them as an
appurtenant, was held to apply in the case of a right of
common.^
And the rule, as laid down in the Digest upon the subject,
is explicit in its terms : " Si quis sedes quae suis sedibus ser-
virent, cum emisset, traditas sibi accepit, confusa sublataque
servitus est : et si rursus vendere vult, nominatim impo-
nenda servitus est; alioquin liberae veniunt."*
[*528] *8. But while the cases last cited serve to show
that certain rights, though formerly united with an
estate, will not, after becoming extinguished by unity of the
1 James V. Plant, 4 Adolph. & E. 749.
2 Manning v. Smith, 6 Conn. 289,
2 Clements v. Lambert, 1 Taunt. 208.
* D, 8, 2, 30. Sec 3 Burge, Col. & F. Law, 446 ; Pardessus, Traite des
Servitudes, 440.
Sect. 2.] REVIVING EASEMENTS BY CONVEYING ESTATES. 617
two estates, revive or pass under the term appurtenant, tliey
do not bear upon the main point intended to he illustrated
in this part of the general subject, — what will pass as an
ease or benefit witli one estate in or over another as an inci-
dent to the grant, although no reference be made to the
same in the deed of such estate.
That such would be the effect in the case of certain ap-
parent easements has already been shoAvn. And that this is
true, but that unless the same was thus apparent it would
not pass, seems to be settled in Glave v. Harding, where
Pollock, C. B. says: "It cannot be denied, that if a man
builds a house, and there is actually a way used or obvi-
ously and manifestly intended to be used by the occupiers
of the house, the mere lease of the house would carry with
it the right to use the way as forming part of its construc-
tion," Which ruling was thus modified by Bramwell, B., in
these words : " It (the lease) did not grant the right in
terms, and the only way in which it could grant it was, that
the condition of the premises at the time when the lease was
granted showed that it was intended that the right of way
should be exercised, upon the principle of law I have ad-
verted to, that, by the devolution of the tenements originally
held in one ownership, a right of way to a particular door or
gate would, as an apparent and continuous easement, pass
to the owners and occupiers of both of them. But I think
the way in question was not a continuous and apparent ease-
ment within that principle of law, and therefore I arrive at
the conclusion that there was no evidence of the right of
way alleged in this case."
The subject of grant in this instance was a single house
in a block, sold when partly finished, which had openings in
the walls, but whether for doors or windows was not appar-
ent, in which respect it differed materially from the
*case of Compton v. Richards,^ and consequently it [*529]
could not be claimed that there was an apparent ex-
1 Compton V. Richards, 1 Price, 27.
618 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. V.
isting way from the street to any particular opening, as a
door. And the judgment of the court went upon the ground
that " the right is not granted in terms, nor by implication,
as a continuous and apparent easement ; therefore it was not
granted at all." ^
In the case of White v. Bass, a question as to an implied
servitude of light and air over a part of the granted premises
for the benefit of another part, arose in this way. A house
and parcel of land adjoining belonged to one owner who
leased the land upon a long term, and in it restricted the
tenant from building so as to obstruct the light of the les-
sor's house according to a prescribed plan. He afterwards
sold the reversionary right to the leased premises by an abso-
lute and unqualified deed. The house, afterwards, was con-
veyed, and came to the plaintiff, and the other premises to
the defendant, who begun to erect a building to obstruct the
light of the plaintiff's house. In answer to an action grow-
ing out of this, the court held that there was no servitude of
light in favor of the plaintiff's house. The effect of the
grant of the reversion to the lessee was, to extinguish his
obligation as to the mode of using the premises under the
lease, and therefore it stood as if, owning the house and
land, he had sold the land reserving the house, in which case
lie could not claim for his house an easement over the
granted land in derogation of his own grant. And one of
the Barons, in comparing it to the case of a way where, if
it is one of necessity, the law might reserve it to a grantor
over the granted premises, limits it to cases like ways of ne-
cessity.2
The case of Pyer v. Carter,'^ which was decided in ac-
cordance with the doctrine of the foregoing cases, was that
of a drain from one house running under and through an
adjacent one ; and the right to maintain it was held to pass
1 Gluvc V. Hardinj^, 3 Ilurlst. & N. 937, 944.
^ White V. Biiss, 7 H. & Norm. 722.
8 Tycr I'. Carter, 1 Hurlst. & N. 916 ; ante, p. 62, et seq.
Sect. 2.] REVIVING EASEMEiNTS BY CONVEYING ESTATES. 619
with the first-mentioned house, being an easement continu-
ous and apparent in its character.
9. And yet it seems that, in order to liavc such casement
revive and pass as appurtenant to one of the estates, it
should be to a certain extent necessary to the enjoyment
of it. The extent of this necessity, however, does not seem
to be well settled. The decided cases clearly do not come
within the rule of necessity which carries a i-ight of way in
the grant of premises ; for there no degree of inconvenience
raises a right to such a way, provided it be not actually ne-
cessary, nor does the easement exist any longer than the
necessity continues. There is a distinction between contin-
uous enjoyments, like drains, and discontinuous, like rights of
way, and the court say : " We do not think, on the severance
of two tenements, any right to all ways, which during the
unity of possession have been used and enjoyed in part,
passes to the owner of tlie dissevered tenement, unless there
be something in the conveyance to show an intention to cre-
ate the right to use the ways de novo^ ^
In a former part of this work it was said, " The test
seems to be, whether what is claimed is reasonably neces-
sary to the enjoyment of the part granted":- and this is
justified by the language of Jewett, C. J., in French v.
Carhart.-" It does not depend upon whether another ease-
ment of the kind can be obtained at an inconsiderable ex-
pense or not, provided such an easement as is then existing
is necessary for the reasonable enjoyment of what
*is granted. And the cases of Pyer v. Carter, above [*5C0]
cited, and Johnson v. Jordan,* when examined in the
light of the facts of each case, go to confirm this position.
10. The case of Dunklee v. Wilton Railroad, though be-
1 Pearson v. Spencer, 1 B. & Smith, 583 ; S. C. 3 B. & Smith, 761. See
Dodd V. Burchell, 1 H. & Colt. 118, 120; ante, p. *44.
2 Ante, p. *61. See also pp. *36, *54.
3 French v. Carhart, 1 Comst. 104.
* Johnson v. Jordan, 2 Mete. 234, 242. See also 2 Fournel, Traite du Voisi-
nage, 403, 404.
620 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. V.
fore cited, has been purposely reserved until now, because,
though covering many of the points before stated, and refer-
ring with much apparent research to most if not all the cases
hereinbefore enumerated, it assumes to place the rule of law
applicable to such cases upon an original ground.
" Our next position is," says Bell, J., " that property con-
veyed passes in its existing state subject to all existing ease-
ments and burdens of a similar nature, in favor of the other
lands of the grantor which are apparent, and which result
naturally from the relative situation of the land, and from
the nature, construction, and intended use of the buildings,
mills, &c., upon it, and their situation and connection with
other property as they were usually enjoyed at the time of
the conveyance. We propose to advert to the authorities
upon this point more at length, because, though there is a
series of decisions for several centuries back, all, as we re-
gard them, tending to support the above position, few if any
of them are distinctly placed upon this broad ground, while
many of them rest upon the once fashionable refinement of
unity of possession, revivor, and extinguishment."^
If, as the cases all seem to show, the union of two estates
in one owner extinguishes whatever easement the one has
in or over the other, and if that ease or benefit be of a char-
acter so apparent, continuous, and necessary to one of these
estates as to raise, in the eye of the law, a reasonable
presumption that, upon a sale of such estate, both ven-
dor and vendee must have understood and expected, in the
absence of any language to the contrary, that the
[*531] *vendee was to have the advantage and benefit
thereof, and in consequence of this the law holds
that such ease or benefit becomes again appurtenant to such
estate, it is not easy to see why giving this effect to " unity
of possession, revivor, and extinguishment," should be re-
garded as a " once fashionable rejinement.^^
The facts of the case were briefly these. The plaintiff, by
1 Dunklcc V. Wilton R. R., 4 Foster, 489, 496.
Sect. 2.] REVIVING EASEMENTS BY CONVEYING ESTATES. 621
purchase, became the owner of a parcel of land below his
mill, through which by an artificial race-way the water was
discharged from his mill into the stream below. This state
of things had continued some tliirteen years, during which
time the original channel through this land had grown up to
grass and bushes, and had become filled up, and in some
parts difficult to trace. In this state of things the plaintiff
conveyed a parcel of land covering this race-way and the old
channel at their intersection, by deed with covenants of
warranty, and the question was, if by so doing he had lost
the right to use this race-way through the granted premises.
The court held that he had not ; and in stating the grounds
upon which the case was rested, there is a principle laid down
applicable to this class of easements, which, so long as con-
fined to these cases, seems to be well sustained by reason
and authority, that, as the owner of an estate " has the right,
by virtue of his ownership, to make any disposition of the
property which he pleases, it seems to follow that, if he does
make any change in the property, those who claim under
him, and derive their titles from him, must take the property
in the state it is in at the time, precisely as if it had been its
natural state, and no other had ever existed." But it still
seems to be limited, in the matter of easements, to such only
as are apparent ; and in the case to which the doctrine was
applied it was not only an apparent, but a continuous one,
and necessary to the enjoyment of the principle estate,
which the grantor retained when he granted the servient
tenement.
622 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. V.
[*532] *SECTION III.
OF CHANGES IN ESTATES AFFECTING RIGHTS OF EASEMENT.
1. Way lost by destroying the dominant tenement.
2. Rights of private way not lost by a public dedication.
3. Easement lost by its purpose ceasing.
4. Chase v. Sutton Manufacturing Company. When change of purposes of flowing
destroys the right.
5. Effect on a way of destroying the intermediate estate.
6. Easements destroyed bj' act of God or that of the law.
7. Locating a public way does not destroy an existing private one.
8. Private right of drain not aflected by creating a public one.
9. Effect of destruction of the two tenements on party walls.
1 Another mode of extinguishing easements is by such a
change in the condition of the estates, in reference to which
such easements have existed, as to render the use and enjoy-
ment thereof no longer of any practical utility or avail.
Thus where one had a right of way across an open space of
land to certain outhouses, and these were removed, and the
land on which they stood was laid out as a highway, it was
held that the right of way was thereby extinguished.^
So where the owner of a defined way stood by and saw the
purchaser of the servient estate erect a house across the way,
so as effectually to stop it, and made no objection, it was
held to work an estoppel to any claim of right to remove the
building for the purpose of opening the way.^
So where one, owning a barn, had a right of way of neces-
sity to the same over the land of another, and suffered his
barn to go wholly to decay, it was held that the right of way
thereby became extinct.^
1 Hancock v. Wcntworth, 5 Mete. 446 ; 2 Fournel, Traite' du Voisinage, 405.
The French law is thus stated : " Les servitudes cessent lorsque les choses se
trouvent en tel c'tat qu'on ne pent plus en user, comme si le funds dominant et
le funds servant vienncnt a perir Mais les servitudes revivent si les choses
sent rdtahlies dc mauiere qu'on puissc en user." 3 Toullier, Droit Civil Fran-
f;ais, 522. See Lalaure, Traite' des Servitudes, 84 ; Pardessus, Traite des Ser-
vitudes, 4.37.
- Arnold v. Connman, 50 Pcnn. 361.
3 Gayetty v. Bethune, 14 Mass. 49; ante, p. 167.
Sect. 3.] CHANGES IN ESTATES AFFECTING EASEMENT. G23
2. But one docs not lose an easement of way as a private
riglit by tlie owner of the servient estate dedicating it to the
public use.^
3. And it is stated, as a general proposition, that,
" If an *eascment for a particular purpose is grant- [*533]
ed, when that purpose no longer exists, there is an
end of tlie easement." The cases in which this doctrine has
been applied have been chiefly, though not always, those of
public easements ; as, for instance, the right of maintaining a
public canal across the land of an individual. In one case
such a company had a sluice from below the plaintiff's mill,
which they applied, not only for the purposes of their canal,
but also for working a mill. When the water was kept
down, it did not impede the plaintiff's wheel, but when the
canal was full, it did. The canal was discontinued by act
of Parliament, and a railroad substituted therefor ; but the
latter was to retain the easements which had been acquired
by the canal. Under this the company continued to use the
sluice, and to keep up the water to the injury of the plaintiff's
wheel. It was held, that, being a use for a different purpose
than that for which the sluice was constructed in connection
with the canal, the right thus to keep up the water did not
pass to the railroad.'^
4. In Chase v. Sutton Manufacturing Company, a canal
company was authorized to flow lands, <fec. of individuals,
paying damages for the same. The plaintiff recovered dam-
ages for flowing his land, under proceedings for that purpose
against the company. The company were, by their charter,
authorized to erect mills and other works on the reservoirs,
&c. of the company, and the plaintiff's land was flowed by a
pond raised for a reservoir, and also used for carrying a mill,
now belonging to the defendants. And it was held that the
damages recovered by him covered as well the flowing for
1 Regina v. Chorley, 12 Q. B. 515.
~ National Manure Co. v. Donald, 4 Hurlst. & N. 8, 19. See Gayetty v.
Bethunc, 14 Mass. 49 ; M'Donald v. Lindall, 3 Rawle, 492; 2 Fourntl, Traiie
du Voisinage, 406.
624 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. V.
the purposes of a canal reservoir as for the purposes of the
mill.
The canal was subsequently abandoned and filled up, and
the bed of it was sold to a railroad, under authority granted
by the legislature. The act authorized the canal
[*534] company *to sell their entire property, or any part
thereof, and to vest a good title to the same in the
purchaser. It further authorized the dams erected by the
canal company to be kept up by the mill-owners thereon for
their benefit. In the sale of their road-bed to the railroad
company, the canal company reserved the land, dam, and
waters retained by them on the river. The court held, that
the damages recovered by the plaintiff were for a permanent
easement to flow his land, as well for mill purposes as for the
canal ; that it was competent for the legislature to authorize
the canal company to sell the right to keep up the dam for
mill purposes, although the canal was discontinued ; and
that, having once recovered damages for such flowing, he
could not recover these a second time of the defendant for
continuing to flow the land for the purposes of his mill.
But the whole reasoning of the case goes upon the assump-
tion, that, if the easement had been acquired for the canal
only, and the canal had been discontinued, the easement
would have been lost, unless saved by the act of the legisla-
ture.^
5. So where there was a right of way from a piece of up-
land through a dock to deep water, and a street was laid out
between such parcel and the deep water, and by its construc-
tion filled up the dock, cutting off communication between
the upland and the water, it was held that the right of way
was thereby extinguished, or at least suspended, and if,
while so suspended, the owner of the estate grant it to
another, the casement of way would not pass with it.^
Where a right of way was by its terms limited as a servi-
1 Chase V. Sutton Mg. Co., 4 Cush. 152.
'■^ Mussey v. Proprietor Union Wharf, 41 Mc. 34.
Sect. 3.] CHANGES IN ESTATES AFFECTING EASEMENT. 625
tude to a garden connected with a dwelling-house in the
country, it was held that it could not be extended to the use
of the house, if separated from the garden.^
6. The general doctrine is stated to be : " Where a right,
title, or interest is destroyed or taken away by the
act of *God, operation of law, or act of the party, it [*535]
is called an extinguishment,^'' and an " casement is
one of the rights which may be extinguished or destroyed." ^
But an easement, by custom, of taking water from a well
is not extinguished by an act of enclosure of the common in
which it is situate, although those acts of enclosure are laws
of the land.^
7. But the mere location of a public way over a private
one does not deprive the owner of the latter of his rights as
such owner in the same, against any one who should ob-
struct it.^
8. Nor would the construction of a public drain from the
land of one who has hitherto enjoyed a private right of drain,
affect this righty^although the private drain may cease to be
necessary to the enjoyment of the land.^
9. A question of a somewhat peculiar character, as to how
far an easement may be lost without any act of either party,
has arisen in respect to party walls. It was held in one case,
that if the buildings, in respect to which there was a mutual
easement of a party wall, were destroyed by fire, the ease-
ment would be extinguished, neither party could require the
other to help rebuild the wall, and, if one built the wall upon
his own land, the other could not claim any right to use it.*^
And in a case where the wall had become so ruinous as to
require to be taken down, Denio, J. was inclined to hold the
1 3 Toullier, Droit Civil Fran^ais, 496.
2 Hancoclv v. Wentworth, 5 Mete. 446,451 ; 1 Rolle, Abr. 934, 935.
8 Race V. Ward, 7 E. & Black, 384.
* Allen V. Ormond, 8 East, 4 ; Woolr. Ways, 73 ; per Patteson, J., Duncan
V. Louch, 6 Q. B. 904, 915.
^ Hastings v. Livermore, 7 Gray, 194.
6 Sherred v. Cisco, 4 Sandf. 480.
40
626 THE LAW OF EASEiMENTS AND SERVITUDES. [Cii. V.
easement of party wall extinguislied in the same way as if
destroyed by fire ; ^ though in Campbell v. Mesier,''^ Chancel-
lor Kent had held that, if a party wall needs repair, one of
the parties can, after request made, proceed to make the re-
pairs, and call upon the other party for contribution.
M. Toullier states the general rule of law to be substan-
tially as follows. Servitudes cease when the subjects
'[*536] of *them happen to be in that condition that they
cannot be used. As if the dominant and servient
estates go to ruin, or they are submerged, or the house
which owes the servitude and that to which it is due are
burned or demolished.
It would be the same if the cause of the servitude should
cease, as, for example, if a spring where I have a right to
draw water becomes dry, I should not only lose the right of
drawing water, I should lose the right of passing over the
neighboring tenement, because the right of passage was only
accessory to the right of drawing water, and that which is
accessory cannot subsist when the principal right is lost.
But servitudes revive when the estates are so restored that
the servitude can be again used, unless a space of time shall
have then elapsed sufficient to raise a presumption that such
servitude has been extinguished. Thus when one recon-
structs a party wall, or a housB which has been demolished
or destroyed by fire, the servitudes both active and passive
are continued in respect to the new wall or new house, under
certain limitations similar to that above stated.^
1 rartridge v. Gilbert, 15 N. Y. 601, 615.
- Campbell v. Mesier, 4 Johns. Ch. 334; 2 Fournel, Traite' du Voisinage,
236 ; 5 Duranton, Cours de Droit Franc^ais, ed. 1834, 382 ; Code Nap., Art. 665.
8 3 Toullier, Droit Civil Fran9ais, 522.
Sfxt. 4.] ACTS OF OWNERS OF EASEMENTS AFFECTING SAME. 627
SECTION IV.
OF ACTS OF OWNERS OF EASEMENTS AFFECTING RIGHTS TO
THE SAME.
1. Acts to have eflect upon easements must be so in '^nded.
2. No parol release affects a right of easemejit.
3. Abusing an easement does not destroy the right.
4. Effect of wrongfully increasing the extent of an easement.
5. One may not alter the condition of dominant or servient estate.
6. Luttrell's case. Change of mode of enjoyment.
7. If one change lights, the other may stop them.
8. Light limited to the prescriptive quantity enjoyed.
9. Enlarging a window does not destroy the original right.
10. Same subject.
*1. In considering what acts of the owner of an [*5o7]
easement, or of the estate in or over which it exists,
will operate to extinguish the same, it may be somewhat dif-
ficult to classify them. But it may be stated, generally, that
the act must be such as indicates an intention to extinguish
the easement, or it must be something which enhances the
burden upon the servient estate, to the injury of the same,
against the consent of the owner thereof.
2. A mere parol release of an easement, or an agreement
not to exercise the same, would of itself be of no avail.^
3. Nor does one having an easement in another's land
lose it by merely abusing it, or using it for purposes for
which he has no right to exercise it. Thus if one having a
right of way for certain purposes across another's land use it
for other and different purposes, he would, as to such use,
be a trespasser. But it would not justify the owner in stop-
ping the way altogether.^
4. But if, in the first place, the owner of the easement
materially change the condition of the estate to which the
same belongs, so as thereby to increase the burden of the
1 Dj-er V. Sanford, 9 Mete. 395 ; Liggins i'. Inge, 7 Bing. 682.
^ Mendell v. Delano, 7 Mete. 176.
628 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. V.
servitude upon the servient estate, and the enjoyment of the
excess cannot be separated from that of the original riglit, it
may operate to destroy or extinguish the right of easement
altogether.^
This subject has been somewhat considered in its relation
to easements of water, and it may be necessary to repeat
some things that are there said in order to apply them to
the general doctrine of- easements.
5. The language of Jervis, C. J., in Wood v. Copper
Miners' Co., is : " In the case of an easement, you cannot
alter the condition of either the dominant or servient tene-
ment." ^
[*538] * And where one had an easement of a drain which
the land-owner was bound to keep in repair, and he
wrongfully increased the quantity of water which he had a
right to discharge through the same, he thereby lost the
right to require the other party to keep the same cleansed
for his accommodation.^
6. One of the leading cases upon this subject is Luttrell's.
In that case the plaintiff, having two old fulling-mills, tore
them down and erected two corn-mills upon the same privi-
lege, and the question was whether by such a change the
owner lost the prescriptive right to the use of the water in
the manner in which he had enjoyed it, in respect to his for-
mer mills. Various cases are referred to in the discussion of
the point raised, illustrating acts that will and such as will
not operate to extinguish an existing easement. It was
held that the change did not affect the prescriptive right,
" provided always that no prejudice may thereby arise either
by diverting or stopping of the water, as it was before."
" So if a man have estovers, either by grant or prescrip-
tion, to his house, although he alter the rooms and chambers
of his house, as to make a parlor where it was the hall, or
the hall where the parlor was, and the like alterations of
1 JoiiOi V. Tapliiig, 11 C. B. n. 8. 283.
2 Wood V. Cojiper Miner's Co., 14 C. B. 428, 44G.
8 Shtirpc V. Hancock, 7 Mann. & G. 354.
Sect. 4.] ACTS OF OWNERS OF EASEMENTS AFFECTING SAME. 629
qualities, and not of the house itself, and without making
new chimneys, by which no prejudice doth accrue to the
owner of the wood, it is not destroying of the prescription.
And although he build new chimneys or makcth a new ad-
dition to his old house, by that he shall not lose his prescrip-
tion, but he cannot imply or spend any of the estovers in the
new chimneys, or in the part newly added. Tlie same law
of conduits and water-pipes and the like." It was held, in
this case, that the alteration being of the qiiaHly, and not of
the substance of the tenement, and it being with-
out any prejudice in the * water-course to the owner [*539]
thereof, did not affect the prescriptive right belong-
ing to the mill.i
In Luttrell's case, the court refer to the case of an ease-
ment of light belonging to a house, the owner of which
changes it. The cases upon this point will be found to be
numerous, and in respect to some of them a difficulty exists
in drawing a precise and definite rule which may apply to
other cases. Thus it is said in Luttrell's case : " So if a man
have an old window to his hall, and afterwards he turn the
hall to a parlor, or any other use, yet it is not lawful for his
neighbor to stop it, for he shall prescribe to have the light in
such part of his house." ^
7. In accordance with what has been stated, it was held
in Garritt v. Sharp, that if one, having an easement of light
over another's estate, alter his premises so that the enjoy-
ment of the liglit will be more disadvantageous to the ser-
vient tenement than that which he before had, the latter may
stop the same.^
8. And an easement of light cannot be carried beyond the
enjoyment of access of light through the same aperture, or
one of the same dimensions, and in the same position, as it
1 LuttrcH's case, 4 Rep. 86-89. Sec Allan v. Gomnie, 11 Adolj)!!. & E.
7.59 ; M'Donald v. Bear River Co., 13 Cal. 220.
2 Luttrell's case, 4 Rep. 87 a.
» Garritt i-. Sharp, 3 Adolph. & E. 325 ; Jones v. Tapling, 11 C. B. n. s. 283.
Seeposi, pi. 10.
630 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. V.
had been used and enjoyed at the time when the consent or
grant, which prescription implies, was given. Therefore,
where one had an ancient window in his wall, and carried
out the wall several feet in the form of a bow, and in it in-
serted three windows instead of the original one, but not
occupying the same place as the former one, it was held that
the change prevented his claiming for these the prescriptive
right of light which belonged to the former window. ^
[*o40] *9. It is, however, stated in one case to bo law,
that, by merely enlarging a window in one's house,
he does not lose the right to enjoy the original space of access
of light, though he cannot claim a right to any easement out-
side of such space. But the owner of the adjacent estate may
obstruct all except the original extent of the aperture.^
10. The subject had been agitated and variously decided
by the English courts as to the effect upon an easement of
light which any one had in favor of a dwellingThouse, if he
were to enlarge his ancient windows, and how far an ad-
jacent owner could, for that cause, stop any portion of this
ancient light in his attempt to exercise what seems to be
conceded as a right by all authorities, to stop or darken the
newly enlarged portions of the windows. Among the cases
involving this question were Renshaw v. Bean,'^ Hutchinson
V. CopestakCj* Bincks v. Park,^ and Jones v. Tapling,^ in its
earlier stages. But the question was finally settled in the
House of Lords, where the doctrine laid down in the two
first cases was overruled, and the irreconcilable differences
of opinion between the judges in the other cases were ob-
viated. In the final decision of the case it was held, that,
inasmuch as it was doing no wrong on the part of the owner
1 Bkinchtml v. Bridges, 4 Adolph. & E. 176 ; Hutchinson v. Copestake, 9
C. B. N. 8. 863 ; Chcrriiigton v. Abney Mil', 2 Vern. 646;
'^ Chandler v. Thompson, 3 Campb. 80.
3 Renshaw ». Bean, 18 Q. B. 112.
* Hutchinson v. Copestake, 9 C. B. n. s. 863.
6 Binckes v. Park, 11 C. B. n. s. 324,
« Jones V. Tiipling, 11 C. B. n. s. 283 ; 12 C. B. n. s. 826 ; ante, pi. 7.
Sect. 5.] EFFECT OF ABANDONING AN EASEMENT. 631
of the house to enlarge his windows, he lost, thereby, no
right of enjoying his prescriptive easement of light, so that if,
in attempting to stop or obstruct the enlarged capacity of
these windows, the adjacent owner interfered with tlie ex-
tent of the ancient lights, he was a tort feasor, and liable in
damages for so doing.^
And in another case it is said, " It has been held that
where a party enlarges an ancient window, the owner of the
adjoining land cannot obstruct any part of the light which
ought to pass through the space occupied by an ancient win-
dow." ^
*SECTION V. [*542]
EFFECT OF ABANDONING AN EASEMENT.
1. An act of abandonment requires intent.
2. Stokoe V. Singers. Stopping light not an abandonment.
3. Lovell V. Smith. Substituting a way not an abandonment.
4. Loss of easement of liglit by ceasing to occupy.
5. Taylor v. Hampton. What amounts to an abandonment.
6. Corning v. Gould. Doctrine applied to ways.
7. Partridge v. Gilbert. Stopping a way defeating the right.
S. IJebuilding house with new windows, loss of ancient light.
9. Length of time not necessary to work abandonment.
10. Changing wheel of a mill may affect the easement.
IL Change of premises not affecting natural easements.
12. Difl'erence in effect of act of God and of owner on easements.
13. What owner must do, if suspended by act of God.
14. Effect of removal of mill by one, and a new one by another.
15. Acts done by owner on dominant estate affecting easement.
1. The owner of an easement may destroy his right to the
same by actually abandoning the right as well as the enjoy-
ment, especially if a third party become interested in the
servient estate after such act of abandonment ; and
it would *operate unjustly upon him if the exercise [*543]
of the easement were resumed in favor of the domi-
nant estate. It is not easy to define, in all cases, what would
1 Jones V. Taplinir, 13 C. B. n. s. 876.
^ Thomas v. Thomas, 2 Cromp. M. & R. 34, 40.
632 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. V.
bo such act of abandonment as would destroy a right of
easement, and each case seems to be a matter for a jury to
determine. But nothing short of an intention so to abandon
the right would operate to that effect, unless other persons
have been led by such acts to treat the servient estate as if
free of the servitude, and the same could not be resumed
without doing an injury to their rights in respect to the
same. And in this it is not intended to embrace questions
which may arise from a mere non-user of an easement.
2. The case of Stokoe v. Singers (in 1857) presents sev-
eral of the points above referred to. In that case there was,
in 1837, an ancient warehouse with windows on both sides.
In that year the owner blocked up the windows on one side
of the house, on the inside thereof, with rubble and plaster.
The bars remained on the outside, so that one there could
see that there had been windows there. The windows re-
mained in this state till 1856. The defendant, having be-
come the owner of the land next to the side of the ware-
house on which the windows had thus been stopped, was
preparing to build a house thereon which would effectually
darken the windows, and actually erected a board on his
own land which stopped them, and for this an action was
brought before the twenty years expired from the stopping of
the windows by the plaintiff in 1837. The judge who tried
the case instructed the jury that the right to light and air
" might be lost by abandonment, and that closing the win-
dows, with the intention of never opening them again, would
be an abandonment destroying the right, but that closing
them for a temporary purpose would not be so Though
the person entitled to the right might not really have aban-
doned his right, yet if he manifested such an appearance of
having abandoned it as to induce the owner of the adjoining
land to alter his position, in the reasonable belief
[*544] *that the right was abandoned, there would be a
preclusion, as against him, from claiming the right."
He left it to the jury, whether they believed that the plain-
Sect. 5.] EFFECT OF ABANDONING AN EASEMENT. 633
tiff's predecessor blocked up the windows with tlie intention
of abandoning them forever, and told them, unless he did,
the right was not gone. In the course of the discussion of
the case, Earlc, J. says : " In Moore v. Rawson it seems to
be said, that an intention to abandon it permanently destroys
it, unless a contrary intention be manifested within a reason-
able time, which is not defined. I should feel inclined to
say, that the intention permanently to abandon it would
destroy it as soon as it was communicated to the owners of
the servient tenement, without lapse of time." Lord Camp-
bell, C. J. : "I doubt whether the communication of that
intention destroys the right until the communication is acted
upon. Then it certainly does." The final judgment by
Earle, J. was : " Taking the whole summing up togetlier, it
seems to us the true points were left by the judge to the
jury. We consider the jury to have found that tlie plain-
tiff's predecessor did not so close up his lights as to lead the
defendant to incur expense or loss, on the reasonable belief
that they had been permanently abandoned, nor so as to
manifest an intention of permanently abandoning the right
of using them." ^
In Perkins v. Dunham the same rule was applied as in the
above case, that the question of abandonment was one for
the jury .2
3. In Lovell v. Smith there was an attempt to establish
an abandonment of a way under the following facts. Tlie
owner of a right of way across the land of another made a
parol agreement with him to substitute another way across
the same land and to give up the one he had. He accord-
ingly made use of the new way for some years, less than
twenty, and the question arose whether he had not
thereby *abandoned the first way and lost it. But [*545]
the court lield that he had not, for that such was not
his intention ; that he merely intended to substitute one for
the other, and as he had not enjoyed the new one the
1 Stokoc V. Singers, 8 Ellis & B. 31 -39.
2 Perkius v. Dunham, 3 Strobh. 224.
634 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. V.
requisite time to acquire it Ijy prescription, the owner of the
servient estate niiglit, at his election, revoke the license by
which lie used it, and leave him without any way if his first
right was lost. To work an abandonment of a right of way
acquired by prescription, there must be a release by deed, or
evidence from which a jury may presume a release.^
4. But in case of light, the right to which was acquired
by occupancy, the same ceases when the person who ac-
quired it discontinues the occupancy.^
5. What shall be an act of abandonment of an easement
in any given case depends, of course, upon the nature of the
property and the easement. In Taylor v. Hampton, tlic
easement in question was a prescriptive right of flowing
back water upon another's land for the use of a mill. The
owner of the mill to which this right belonged, removed it
up the stream, and established it upon a new spot, and
ceased to flow the former land. The owner of this land
then converted it into a rice-field, and cultivated it, and
subsequently sold it. And it was held that the mill-owner
could not afterwards resume the occupancy of the land by
replacing his mill, and flowing it again .'^
In Hale v. Oldroyd the owner of three closes had an an-
cient pond for their accommodation, which was supplied by
water through a ditch in another's land. He dug a pond
in each of the closes as a substitute for the general one, and
enjoyed the same for twenty years, the old pond having, in
the mean time become filled up with rubbish. But upon
a trial for diverting this water, his title to the three
[*546J ponds *by prescription having failed, he was allowed
to make good his original right to fill the ancient
pond, not having lost his right by abandonment, as he did
not intend to abandon the right to the water.'*
1 Lovell V. Smith, 3 C. B. n. s. 120 ; Wright v. Freeman, 5 Harr. & J. 467
478. Contra, Pope v. Devercaux, 5 Gray, 409.
2 Per Litlledale, J., Moore v. Rtivvson, 3 Barnew. & C. 332, 341 .
3 Taylor v. Hampton, 4 M'Cord. 96.
* Hale V. Oldroyd, 14 Mccs. & \V. 789.
Sect. 5.] EFFECT OF ABANDONING AN EASEMENT. 635
6. The case of Corning v. Gould illustrates many of the
positions above taken, as they apply to ways. In that case,
there was a way between the plaintiff's premises and de-
fendant's, the centre line of which was the dividing line
between the estates. The plaintiff built upon a part of tlic
way next his estate, and run a fence along the middle of it,
leaving the other half within the enclosure of the adjacent
estate. This was less than twenty years before the action
brought. In that state the owner of the other estate sold it
to the defendant, who proceeded to occupy the part of the
way inside of the fence next to his estate. It was held that
the plaintiff had, by his act, abandoned and lost the ease-
ment, since his actions showed an intent to do so on his part,
and this was followed by the act of the party owning on the
other side of the line, constituting a joint abandonment by
both, and the defendant purchased the estate in this condi-
tion.^
7. So in Partridge v. Gilbert, where a passage over two
adjoining estates through an arch in the dividing line of the
estates was stopped by the parties converting the arch into
a solid wall, the easement of way was mutually abandoned.^
8. In a leading case upon this subject, where the ease-
ment claimed was that of light and air, the owner of tlie
building to which it was appurtenant tore it down, and
erected another with a blank wall, and sutfered the same to
remain in that situation for seventeen years. A question
having arisen whether the house had, by this, lost this
casement, the court held that it was incumbent upon the
owner to show that, at the time when he erected the
*blank wall, and apparently abandoned the use of [*o47]
the windows that gave the light and air, it was not
a permanent, but a temporary abandonment, and that he in-
tended to resume the enjoyment within a reasonable time.
1 Corning v. Gould, 16 Wend. 531, 538; Pardessus, Traite des Servitudes
478.
2 Partridge i;. Gilbert. 15 N. Y. 601.
636 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. V.
By building tlic blank wall, lie may have induced another
person to become the purchaser of the adjoining ground for
building purposes, and it wotild be most unjust that he
should afterwards prevent such person from carrying those
purposes into effect. And it was held that the plaintiff could
not recover for an obstruction to the light of windows opened
in this blank wall.^
In Lawrence v. Obee the same doctrine was applied, ex-
cept that, in that case, the window had been bricked up, and
remained so for twenty years, which was held to be an
abandonment. And an adjacent owner, having constructed
a privy upon his premises, which was not a nuisance so
long as the window remained closed, was held not liable
for such erection, although, when the first owner reopened
his window, it became a nuisance to the first-mentioned
house. 2
9. Although, as will be seen, an abandonment is some-
times inferred from a non-user for twenty years, it seems to
depend less upon the duration of the time than the acts
which accompany the ceasing to use the easement, for its
effect upon the right. The length of time that this is con-
tinued is one of the elements from which the intention to
abandon or retain the right is inferred. It is not therefore
necessary to have ceased to use a private way the whole
term of twenty years in order to lose it. And among the
illustrations given to this effect, is that of a way to a malt-
house through a gate leading from a lane, and the owner
were to tear down the malt-house, and erect a wall where
the gate was. It would authorize the inference that
[*548] the *way had been effectually abandoned. The ces-
ser to use, coupled with any act clearly indicative of
an intention to abandon the right, would have the same ef-
fect as a release, without any reference to the time during
1 Moore v. Kawsoii, H Barncw. & C. 332 ; Dyer v. Sanford, 9 Mete. 395. Sco
Ballard y. Butler, 30 Me. 94.
2 Lawrence v, Obee, 3 Cainpb. 514.
Sect. 5.] EFFECT OF ABANDONING AN EASEMENT. 637
which such cesser has continued. And in the same case, it
was held that the owner of the servient estate, over whicli
the dominant estate had a right of way, could not affect the
right of the latter by dedicating the way to the public use.^
But Lord Campbell, in Stokoe v. Singers, said the case of
Regina ik Chorley was " an authority that an abandonment
is effectual if communicated and acted upon. It goes no
further." ^
In Grain v. Fox, one having a riglit of way to a house
across another's close, took down the house, and, after
twelve years, enclosed the way and cultivated it. It was
held that he had abandoned it as an easement.^
10. In one case, a party having acquired a right to the
use of water for operating a mill with a low wheel, clianged
the use, so as to employ a larger wheel and greater head of
water, and continued this long enough to acquire a right to
the same. He then voluntarily discontinued the use of the
larger wheel, and resumed that of the smaller one, and it
was held that he thereby abandoned the right to maintain
the increased head of water.*
11. But this would not apply to the case of an interrup-
tion of the natural flow of a stream of water through one's
premises. As where one who had enjoyed the waters of a
natural stream, flowing, in a particular channel, through his
land for nineteen years, sued for an obstruction to the same
above his premises, it was held to be no defence, that, prior
to that time the stream had been obstructed for a time, or
that the course of the stream had been changed
* above the plaintiff's land, by the act of the plain- [*549]
tiff himself.^
12. In the above-cited case of Taylor v. Hampton, the
1 Regina v. Chorley, 12 Q. B. 515 ; Pope v. Devereux, 5 Gray, 409.
2 Stokoe V. Singers, 8 EUis & B. 31, 37.
8 Grain v. Fox, 16 Barb. 184.
* Drewett i'. Sheard, 7 Carr. & T. 465.
5 Hall V. Swift, 4 Biug. n. c 381. See Patteson, J., in Carr v. Foster, 3 Q. B.
581, 585.
638 THE LAW OF EASEMENTS AND SERVITUDES. [Cir. V.
judge thus discriminates between the effect of the act of the
party owning the easement and the act of God in destroying
or interrupting the same. " Wliere a right is suspended by
the act of God, as by the drying up of a spring, it will revive
again if the spring chance to flow. But if it be suspended
by the act of the party, as by building a house or a wall, it
would not be restored, even though the oljstacle should be
removed by a stroke from heaven." ^
13. But it would seem that, if the enjoyment of the ease-
ment was suspended by the act of God, and might be re-
stored by the owner thereof, but he fail to do so within a
reasonable time, and in the mean time another party is suf-
fered to go on and enjoy an easement upon his own land,
which he could onjy do upon the assumption that the first
was abandoned, it would have the effect to defeat the origi-
nal easement altogether. Thus where one had, by user,
acquired the right to divert water from a stream for the
working of a mill, but the mill was carried away, and the
channel filled up by which the water of the stream had been
diverted, and it remained so for forty-five years, during which
time a mill below had enjoyed the use of the natural stream,
it was held that the owner of the original mill-site could not,
by erecting a new mill thereon, and opening the old channel,
have a right to divert the water into its former channel. The
lower mill had, by this period of enjoyment, acquired the
right to the natural flow of the stream, which the former
mill-owner might not disturb.^
14. And the case put by Tindal, C. J., in Liggins
[*550] V. Inge, *is this : " 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
1 Taylor v. IIam])ton, 4 McConl, 96. See Corning v. Gonid, IG Wend. 531,
541.
2 Thomas u. Hill, 31 Mc. 252. Sec ante, sect. 3, pi. 9; Dunklee v. Wilton
E. R., 4 Foster, 489.
Sect. 6.] EFFECT OF NON-USER OF EASEMENTS. 639
Diiglit not erect a mill and employ the water so relinquished ?
or that he could be compellal)le to pull down his mill, if the
former mill-owner should afterwards change his determina-
tion, and wish to rebuild his own?" The question would
be for the jury, whether he had C(yupletely abandoned the
use of the stream or not.^
15. And the court in Dyer v. Sanford say : " It may well
be maintained, upon the authorities, that the owner of a
dominant tenement may make such changes in tlie use and
condition of his own estate as in fact to renounce the ease-
ment itself. And this may be relied on by the owner of the
servient tenement as evidence of abandonment." '^
SECTION VI.
EFFECT OF NON-USER OF EASEMENTS.
1. Must be an adverse user to liave non-user an abandonment.
2. No length of non-user bars a right granted by deed.
3. What acts on servient estate defeat a non-used right.
4. Doe V. Butler. What presumption arises from non-user.
5. Eft'ect of non-user of a right gained by prescription.
6. Grounds and extent of presumption from non-user.
7. Twenty years non-user, if explained, no abandonment.
8. What necessary to have non-user operate an abandonment.
9. Hatch V. Dwight. Case of a mill ; same subject.
10. Williams v. Nelson. Non-user of right to flow lands.
11. Non-user of right to flow under Massachusetts mill laws.
12. Farrar v. Cooper. Nou-user with acts of abandonment.
13. Shields v. Arndt. Right lost by non-user extinguished.
14. When one is bound to inquire if the other has abandoned.
1. In some cases an abandonment of an easement is in-
ferred from a non-user of the right. But though
this is * true, under certain circumstances, it is be- [*551]
lieved never to apply unless the non-user shall have
been of as long duration as the period that is required in
order to gain the easement by user, and rarely, if ever, uii-
1 Liggins V. Inge, 7 Bing. 682.
2 Dyer ;;. Sanford, 9 Mete. 395, 401.
640 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. V.
less there has been,* besides, such a use by the owner of the
premises in or over which the easement has been enjoyed, as
to indicate a claim of right wliicli is adverse to the enjoy-
ment of the easement. Here, as in the case of acts of aban-
donment, the non-user must be of such a character and du-
ration as to show an intent to abandon the easement, or it
must have induced another to expend money upon the sup-
position of such abandonment, which is known and acqui-
esced in by the one who might otherwise claim it, and where
to enforce the right of easement would work injustice upon
an innocent party .^
And even a public easement in a highway may be lost by
non-user. The law in such cases presumes an extinguish-
ment by abandonment for a long time. But an encroach-
ment upon a liighway will not destroy the easement in the
part thus encroached upon, if for a less period of time than
twenty-one years.^ Very strong evidence must generally be
given of abandonment, yet such evidence need be made
much less strong when the owner has allowed any other
person to assert rights which will be seriously and irremedi-
ably damnified by the reassertion of the right of easement.
This language was applied to a case where the non-user had
continued twenty-five years.^
And an adverse enjoyment of the servient estate, though
presumptive evidence, in some cases, of an extinguishment
of the easement in or over the same, is always subject to be
rebutted by evidence.*
2. In the first place, if the easement has been acquired
by deed, no length of time of mere non-user will operate to
impair or defeat the right. Nothing short of a use by the
owner of the premises over which it was granted, which is
adverse to the enjoyment of such easement by the owner
1 See 2 Fournel, Traite du Voisinage, 406 ; Crossley, v. Lightowler, L. K. 3
Eq. 292, 294.
^ Fox V. Hart, 11 Ohio, 416. Sec State v. Alstead, 18 N. H. 65.
8 Crossley v. Lightowler, L. R. 3 Eq. 294.
* Iloirtiiati V. Savage, Ifj Mass. 130.
Sect. 6.] EFFECT OF NON-USER OF EASEMENTS. G41
thereof, for the space of time long enough to create a pre-
scriptive right, will destroy the right granted.^
Thus where the owner of an aqueduct through another's
land discontinued the use of it, and the owner of the land
took up the logs, and did other acts inconsistent with a fur-
ther use of the aqueduct, and this was continued for thirty-
years, it was held that the right was, thereby, lost, although
originally acquired by express grants, these acts being ad-
verse to the right of easement and acquiesced in by the
owner thereof.^
In the case of Arnold v. Stevens the easement granted
was the right to dig ore in the grantor's land, which had
remained unused for forty years, but there had been
no * adverse enjoyment of the premises, and it was [*552]
held to be no abandonment of the right.^
In Butz V. Ihrie there was a grant of land, excepting and
reserving a right to raise the water of a stream running
through the same to a certain height by means of a dam, to
be erected in a certain locality. This right had remained
unused for over thirty years, and it was contended by the
land-owner that the right had been abandoned and lost. The
court held that, inasmuch as the terms of the reservation
did not require the right to be exercised at once, no mere
lapse of time during which it was not exercised could be
deemed evidence of an abandonment, and that the law of
limitation did not apply so as to run against such right,
until some default, negligence, or acquiescence was shown,
or might be fairly presumed in the owner. " The time of
limitation may begin to run as soon as the laches exists, but
not before."^
1 Banner v. Angier, 2 Allen, 128; Jennison v. Walker, 15 Gray; Arnold v.
Stevens, 24 Pick. 106, 113, 114; White v. Crawford, 10 Mass. 183; Jewett v.
Jewett, 16 Barb. 150; Farrar v. Cooper, 34 Me. 394, 400; Smiles v. Hastings,
24 Barb. 44 ; 3 Kent, Comm. 359 ; Ang. Watercourses, § 252 ; Nitzell v. Pas-
chall, 3 Rawle, 76 ; French v. Braintree Co., 23 Pick. 222.
- Jennison v. Walker, 1 1 Gray, 425.
3 See also 2 Evans, Pothier, Oblig. 137.
* Butz V. Ihrie, 1 Rawle, 218, 222. See Nitzell v. Paschall, 3 Rawle, 76, 82,
41
642 THE LAW OF EASEMENTS AND SERVITUDES. 1 [Ch. V.
The case of Yeakle v. Nace was that of an easement of a
way, and confirms the doctrine above stated.
3. It was held, that, thougli such easement miglit be lost
hj an enjoyment or occupation of the servient estate, ad-
versely to the right claimed, it must be such as indicates a
denial of the right on the part of the owner of the land.
Otherwise, a mere non-user of a privilege in land granted or
reserved, where there is nothing in the grant to show that it
was to be exercised immediately, would not deprive one of
his right.
The facts to which this doctrine was applied were as fol-
low. One granted a house and lot, adjoining another lot be-
longing to the grantor, with a right of a passage-way between
the lots of four feet in width, reserving to himself a right to
build over and under this passage-way. It was held that a
mere non-exercise of the right thus to build would
[*553] not * operate to defeat the same, though continued
for ever so long a time. But if the grantee in such
a case were to build over the passage-way, and occupy it thus
for twenty-one years, it would destroy the right reserved to
the grantor, by such adverse occupation and enjoyment by
the grantee. In that case, the same grantor sold eleven lots
to diiferent purchasers, lying by the side of each other, with
a right of way across the rear ends of each of these lots,
twenty feet in width from one street to another. The pur-
chaser of the outside lot, next to one of these streets, en-
closed his lot, including the twenty feet in width in the rear,
and kept it so enclosed and cultivated for thirty years ; and
it was held that the owners of the other lots, by acquiescing
in this enclosure, had lost the right of way over and across
the lot so enclosed. 1
A mere obstruction, however, of an easement, a way for
instance, caused by the owner of the servient estate, for less
than twenty years, though yielded to by the owner of the
easement, would not bar the right any more than a mere
1 Yeakle v. Nace, 2 Whart. 123.
Sect. 6.] EFFECT OF NOK-USER OF EASEMENTS. 643
non-user of it for that length of time. An obstruction to its
use cannot be said to be an adverse possession of an ease,
ment, since an easement is not capable of actual possession
apart from its enjoyment.^
So in regard to the effect of an interruption of the right of
way. It must have been acquiesced in by the owner of the
easement to be affected by it. " If the right be once estab-
lished by clear and distinct evidence of enjoyment, it can be
defeated only by distinct evidence of interruptions acquiesced
in." 2
4. So that the doctrine stated in Doe. v. Butler applies to
cases of incorporeal hereditaments in the case of a mere non-
user. " The rule of presumption is, iU res rite acta est, and
is applied whenever the possession of the party is
*rightful, to invest the possession with a legal title. [*554]
Such a presumption will be made when it is neces-
sary to clothe a rightful possession with a legal title, but the
court must first sec that there is nothing but the form of a
conveyance wanting. But this presumption in favor of a
grant against written evidence of title can never arise from
the mere neglect of the owner to assert his right, where
there has been no adverse title or enjoyment by those in
whose favor the grant is to be presumed, for the obvious
reason that the presumption of the person showing title,
which arises from the delay in asserting his title, is equally
balanced by the like presumption arising from the same
delay on the part of the supposed grantee."^
5. In respect to the effect to be given to a mere non-user
of an easement which has been acquired by adverse user or
prescription, although the language of some of the cases
would imply that if continued for twenty years it would be,
of itself, an abandonment, it is believed that such non-user
is in no case anything more than evidence of an intent to
1 Bowen v. Team, 6 Eich. 298, 305 ; 2 Smith, Lead. Cas., 5th Am. ed. 211.
2 Han-ie v. Eogers, 3 Bligh, n. s. 440, 447.
3 Doe V. Butler, 3 Wend. 149, 153.
G44 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. V.
abandon the right ; that it never applies when the period of
such non-user is less than the period of limitation, and is
open to explanation and to be controlled by evidence that
the owner of the easement did not intend to abandon it while
omitting to use it.^
A case is mentioned by Mr. Evans, in his edition of Pothier
on Obligations, where the court held that a cesser to use a
watercourse was an extinguishment of such right, although
no act had in the mean time been done by the owners of the
adjacent land adverse to the right. But the editor contends
that such inference ought not to have been drawn, because,
among other reasons, no inconsistent or adverse enjoyment
had been acquired in the mean time.^
6. So it is laid down in Hillary v. Walker, by
[*555] Erskine *Ch. ; " The presumption in courts of law
from length of time stands upon a clear principle.
It resolves itself int« this, that a man will naturally enjoy
what belongs to him. As to incorporeal hereditaments, 1st,
rights of way not enjoyed for a number of years, though a
convenience, if not a necessity for the enjoyment, has existed,
the court directs the jury to presume either that it never did
exist, or that it was surrendered, upon this plain reason, the
absence of any cause why a man possessed of a right that is
convenient or necessary for him should in no instance have
enjoyed it. So as to the use of water and light, and when-
ever a party has been long out of possession of an incorporeal
hereditament, the question has always been determined in
that manner." ^
The language of Abbot, C. J., in Doe v. Hilder, on this
subject, is this : " The long enjoyment of a right of way by
A to his house or close over the land of B, which is a preju-
dice to the land, may most reasonably be accounted for by
supposing a grant of such right by the owner of the land.
1 Pardessus, Traite des Servitudes, 458 ; Crossley v. Lightowler, L. R. 3 Eq.
292.
2 Prescott V. Phillips, 2 Evans, Pothier, Oblig. 136.
8 Hillary v. Walker, 12 Ves. 239, 265.
Sect 6.] EFFECT OF NON-USER OF EASEMENTS. 645
And if such right appear to have existed in ancient times, a
long forbearance to exercise it, which must be inconvenient
and prejudicial to the owner of the house or close, may most
reasonably be accounted for by supposing a release of the
right. In the first of these cases, therefore, a grant, in the
latter a release, of the right is presumed." ^
This seems to put it on the true ground, as a matter of
evidence, and not a conclusive presumption.^
7. Thus it was held in Ward v. Ward, that " the pre-
sumption of abandonment cannot be made from the mere
fact of non-user. There must be other circumstances in the
case to raise that presumption. The right is acquired by
adverse enjoyment. The non-user, therefore, must be the
consequence of something which is adverse to the
user." *And in that case the presumption was [*556]
effectually met by showing that the owner of the
close, for which the right of way was claimed, had had a
more convenient and easy access to it in some other way
during the time of the cesser to us6 the way.^
8. The language of the court in Corning v. Gould* upon
the subject is this : " Abandonment is a simple non-user of
an easement, and in order to make out an effectual answer
to the claim upon that ground, I find it perfectly well settled
that the enjoyment, nay, all acts of enjoyment, must have
totally ceased for the same length of time that was necessary
to create the original presumption." And the cases cited
below not only sustain this position, but that non-user for
a longer period of time than necessary to acquire a right is
only evidence of an abandonment, where the right has been
gained by user. There must be an adverse enjoyment by
some party adversely interested for twenty years, to give a
non-user the- effect of evidence. Such non-user must be
1 Doe V. Hilder, 2 Barnew. & Aid. 782, 791.
2 See Eldridge v. Knott, Cowp. 214.
8 Ward V. Ward, 7 Exch. 838.
* Corning v. Gould, 16 Wend. 531, 535.
646 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. V.
accompanied by acts or declarations indicating an intent to
abandon the right, and the non-user must have continued
for twenty years, or other persons have been induced, by
such acts or declarations of abandonment, to expend money
upon the premises over which the easement once existed.^
9, In Hatch v. D wight, the easement was the use of
water by a mill, which was obstructed by the owner of
a lower mill. The court say : " If a site once occu-
[*557] pied *had been abandoned by the owner, evidently
with an intent to leave it unoccupied, it would be un-
reasonable that others, owning above or below, should be pre-
vented from making a profitable use of their sites from fear
of being exposed to an action for damages by their neighbor.
Questions of this kind, however, are proper for the consid-
eration of a jury."
And it is said by Coke : " The title being once gained by
prescription or custom, cannot be lost by interruption of pos-
session for ten or twenty years, but by interruption of the
right." 2
10. In Williams v. Nelson, mill-owners had acquired a
prescriptive right to flow certain lands of another without
payment of damages therefor. They took down their mill
and removed it, carrying away all the valuable parts thereof
except the wheel, which they did not afterwards use in re-
building the mill. Some of the owners of the mill had
moreover declared, and one of them had done this in the
presence of the owner of the land, that the mill would not
again be put in operation. The premises continued in this
1 Hatch V. Dwight, 17 Mass. 289 ; Emerson v. Wiley, 10 Pick. 310; Williams
V. Nelson, 23 Tick. 141, 147; French v. Braintree Mg. Co., 23 Pick. 216;
White V. Crawford, 10 Mass. 183; Arnold v. Stevens, 24 Pick. 106; Regina v.
Chorley, 12 Q. B. 515; Jewett v. Jewett, 16 Barb. 150; Wright v. Freeman, 5
Harr. & J. 467, 476; Kurd v. Curtis, 7 Mete. 94, 115; Pillsbury v. Moore, 44
Me. 154; Townsend v. M'Donald, 2 Kern, 381; Dyer v. Depui, 5 Whart.
584 ; Perkins v. Dunham, 3 Strobh. 224 ; Farrar v. Cooper, 34 Me. 394, 400 ;
Nitzcll V. Paschall, 3 Rawle, 76, 82 ; Hall v. Swift, 6 Scott, 167 ; Miller v. Gar-
lock, 8 Barb. 153; Crossley v. Lightowler, L. R. 3 Eq. 293.
2 Co. Litt. 114b.
Sect. 6.] EFFECT OF NON-USER OF EASEMENTS. 647
position nine years, and the owner of the land had in the
mean time cultivated and improved his meadow, cutting the
brush thereon, and turning some parts into English grass.
But the court held it was not an abandonment, and that
they weM justified in resuming the occupation of the mill,
and overflowing the land, without thereby being liable to
damages for such flowing.^
11. But it would seem, that if the right of the mill-owners
to flow the land had been acquired under the mill acts
of Massachusetts by paying annual damages therefor, and
they had removed the mill, and given notice to the land-
owner of their intention not to flow the land any
*longer, it might operate to extinguish the privilege [*558]
and remit the land-owner to his original rights.^
12. And the case of Farrar v. ,Cooper affirms the doctrine
above stated, that, if the owner of an upper mill-privilege
abandon the use of it, he may lose the same, if he so acts to-
wards the owner of a lower privilege, proposing to occupy
the same, as to give him reasonable ground to suppose the
privilege had been abandoned, and he proceeds to occupy the
lower one accordingly. Thus where the owner of an upper
privilege ceased to use it, and joined with other owners, of
which he was one, in occupying a lower privilege, it was held
to be such an abandonment that he could not afterwards re-
sume the occupation of the first to the injury of the second.^
13. The case of Shields v. Arndt is referred to in this con-
nection, as presenting some of the foregoing propositions in a
somewhat peculiar light, but illustrating how, though a mere
non-user of an easement may not operate as the loss of the
same, yet if it results from an adverse enjoyment of the laud-
owner over which it is claimed, and this is continued for
twenty years, the effect is to extinguish it, as if it never had
1 See Hurd v. Curtis, supra; Dyer v. Depui, 5 Wliart. 584, 597 ; Mowry v.
Sheldon, 2 R. I. 369, 378.
■2 French v. Bniintree Mg. Co., supra ; Liggins v. Inge, 7 Biug. 682. See
Baird v. Hunter, 12 Pick. 556 ; Hunt v. Whitney, 4 Mete. 603.
3 Farrar i;. Cooper, 34 Me. 394, 400 ; Mowry v. Sheldon, 2 R. I. 369.
648 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. V,
existed. Thus where one owning land upon a stream, below
that of another, suffered the upper owner to divert the en-
tire water of the stream from his land, so that for twenty
years none ran to the land of the lower owner, and then the
upper owner turned the water so that it ran again upon the
lower owner's land, and continued to do so for a time less
than twenty years, it was held that the upper owner might
again divert it upon his own land, and that the lower owner
would be without remedy for such diversion.^
14. In the case of Mowry v. Sheldon, above cited,
[*559] the *language of the court bears upon the inference
that may be drawn from a mere discontinuance of
the use of a mill-privilege, and how far that depends upon
the intent with which it is done, namely : " It is said, that,
leaving the dam not only unoccupied for such a length of
time (nine years), but so injured as not to pond the water,
and taking the gate out of the bulkhead, were calculated to
mislead the owner below, who might go on and erect his
dam in the belief that the privilege was abandoned. We
think, in such a case, it is the duty of the owner below, be-
fore he attempts to flow out the privilege above, to inquire
of the owner thereof. If the owner of the upper privilege
acts in good faith with the actual intent to repair the dam,
and occupy it or sell to some one who will, we do not think
he ought to lose his privilege." ^
1 Shields v. Arndt, 3 Green, Ch. 234.
" Mowry v. Sheldon, 2 R. I. 369, 378.
Sect. 7.] EFFECT OF EXECUTED LICENSE UPON EASEMENT. 649
SECTION VII.
EFFECT OF AN EXECUTED LICENSE UPON AN EASEMENT.
1. Effect of acts done on dominant and servient estates.
2. Acts on dominant estate whicli destroy easements.
3. Acts done by license on servient estate.
4. If act done destroj's easement, it is irrevocable.
5. Liggins v. Inge. Case of act done on servient estate.
6. Morse v. Copeland. Easement destroyed by an executed license.
7. Dyer v. Sanford. Act on servient estate destroying easement.
1. In some of the cases which have been referred to, the
rulings of the courts might have been sustained upon what
has now become well-settled law, that, if the owner of the
dominant estate do acts thereon which permanently prevent
his enjoying an easement, the same is extinguished: or, if
he authorize the owner of the servient estate to do upon the
same that which prevents the dominant estate from
any *longer enjoying the easement, the effect will be [*560]
to extinguish it.
2. In respect to the first part of the proposition, it has
been heretofore illustrated by referring to the case of light
and air, where the owner of a dominant estate had erected
a permanent blank wall in place of the one through which
the light and air had been enjoyed ; and it is only necessary
to repeat the doctrine in this connection. ^
3. But the other part of the proposition requires a more
extended explanation, in order to distinguish between the
cases of a license to do acts on the land of the licenser and
similar acts on that of the licensee. If one licenses another
to do an act upon the licenser's land, he may, at common
law, revoke it, so far as it remains unexecuted, at his pleas-
ure, with very rare, if any, exceptions.^
1 Dyer v. Sanford, 9 Mete. 395 ; Moore v. Eawson, 3 Barnew. & C. 332 ;
Lavillebeuvre v. Cosgrove, 13 La. Ann. 323 ; La. Civ. Code, ^ 779.
- Hewlius V. Shippam, 5 Barnew. & C. 221.
650 THE LAW OF EASEMENTS AND SERVITUDES. [Cir, V.
4. And consequently, if the act so licensed to be done
aflfects the enjoyment of the land, or any easement con-
nected therewith, when the same is revoked the right to
the easement revives with full vigor. But if the act be to
be done on the licensee's land, and the effect thereof is
to impair or destroy an easement belonging to land of the
licenser, the latter cannot himself restore what has been
changed on the other's land, nor can his revocation of the
license affect what has already actually been accomplished ;
and it would be sufficient that the license was by parol, and
not in writing.
This position will be found illustrated by the cases which
are cited below. ^
[*561] *5. In Liggins v. Inge, the plaintiff's ancestor,
a mill-owner, by parol, licensed or authorized the
defendant to lower the bank of the stream within his own
land, and to raise a weir in the stream there, whereby the
water of the stream was diverted. This the defendant did
at his own expense, and, after the same had continued in
that state for five years, the mill-owner called on the defend-
ant to restore the bank to its original state, which he refused
to do. The court held, that, when the mill-owner author-
ized this diversion to be made, he thereby signified his relin-
quishment of a right to so much of the water ; and after he
had done this by words or acts, and suffered other persons
to act upon the faith of such relinquishment, and to incur
expense in doing the very Set to which his consent was
given, it was too late to retract such consent, or to throw on
those other persons the burden of restoring matters to their
former state and condition. " There is nothing unreasonable
1 Liggins V. Inge, 7 Bing. 682 ; Winter v. Brockwell, 8 East, 308 ; Morse v.
Copeland, 2 Gray, 302; Elliott v. Rliett, 5 Rich. 405, 418,419; Dyery. San-
ford, 9 Mete. 39.5. See also Addison v. Hack, 2 Gill, 221 ; 3 Toullier, Droit
Civil Franrais, 506 ; 3 Burge, Col. & F. Law, 445 ; ante, p. 394.
Lalaurc states the law thus : " Si jc vous devois un droit de chenain a travers
mon champ, ct que vous me permissicz de hutir sur le cliemin ; ou d'enclorre le
chamj), alors vous perdriez la servitude." Traite des Servitudes, 80. See D.
8, 6, 8.
Sect. 7.] EFFECT OF EXECUTED LICENSE UPON EASEMENT. G51
ill holding that a right which is gained by occupancy should
be lost by aljandonment." The court put the following case
by way of illustration : " Suppose A authorizes B, by express
license, to build a house on B's own land close adjoining to
some of the windows of A's house, so as to intercept part of
the light, could he afterwards compel B to pull down the
house again, simply by giving notice that he countermanded
the license ? "
The act authorized to be done in Winter v. Brockwell was
for the owner of the servient estate to place a skylight there-
on, adjoining the dominant estate, the effect of which was to
prevent the light and air coming to the latter, as it had
previously done ; and it was held not to be revocable, after
it had been executed.
6. The case of Morse v. Copeland was in many respects
like that of Liggins v. Inge ; and a similar doctrine was
sustained in it. The plaintiff owned a mill and a right to
flow the defendant's land. He gave the defendant oral
permission to erect a dam on his own land, which
excluded *the water of the plaintiff's pond from a [*562]
portion of the land previously flowed, which dam he
erected. The plaintiff also gave the defendant license to cut
a trench from the part of the land thus cut off by the dam,
across the plaintiff's land, and thereby to drain the water
from that part of the defendant's land, which trench the
defendant also constructed. A few years after this, the
plaintiff revoked these licenses, and insisted upon having
the dam removed and the ditch filled up. But the court
held, that, as to the executed license under which the de-
fendant had erected a dam on his own land, it was not
revocable ; but as to that which related to a ditch across the
plaintiff's land, it might be revoked, and, in an action for
keeping up the dam and ditch, judgment was rendered in
accordance with this ruling.
7. The same doctrine is again repeated in Dyer v. Sanford,
which related to an obstruction of an easement of light and
652 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. V.
air, by an erection by the owner of the servient estate upon
his own land, by the license and permission of the owner of
the dominant estate. " It results from the consideration
that a license when executed is not revocable, and if the
obstruction be permanent in its nature, it does, de facto,
terminate the enjoyment of the easement. But the license
is for the specific act only, and if, when executed, it is of
such a nature as, de facto, to destroy the easement, but is
only temporary in its nature, or limited in its terms, then,
as the easement is not released when the obstruction, erected
in pursuance of such specific license, is removed, the owner
of the servient tenement cannot erect another obstruction
of the same or of a different kind without a new license."
But this statement of the law is accompanied by the re-
mark : " We think there is a distinction between an exe-
cuted license to impede or obstruct an easement of this
description, and an abandonment of the easement." So
that it seems that, whether the execution of the license is a
suspension merely, or a practical destruction of the
[*563] right of *easement, depends upon the nature and
effect of the act licensed to be done. And further-
more, such license, or the act done under it, can extend no
further than the right and interest of the licenser in the
estate, since the tenant of a term cannot bind the reversioner
by acts done by him while in possession of the premises as a
termor. Thus it is said in the case cited : " The license in
question, and the acts done under it, could not operate as a
release, because not in writing, nor as an abandonment,
because E. T. (the licenser) was not the owner of the in-
heritance, and had at most a right of dower in the premises,
and the occupation as guardian of her children, or other-
wise." ^
So if the act be to be done on a third person's estate by
the licensee, and the license be executed, it cannot be revoked.
Thus, one owning an aqueduct which extended across the
1 Dyer V. Sanford, 9 Mctc. 395.
Sect. 7.] EFFECT OF EXECUTED LICENSE UPON EASEMENT. 653
land of a neighboring proprietor to his own, granted to a
third person a right to draw water from it to be taken at a
point within the grantor's land. He then gave the grantee
of this right a license, by parol, to draw the water from the
aqueduct at a point in the land of the adjacent owner, before
it had reached the land of the grantor. The licensee having
done as he was licensed to do, it was held that the licenser
could not afterwards revoke the license.^
1 Curtis V. Noonan, 10 Allen, 406.
[*564] ^CHAPTER VI.
REPAIRS OF EASEMENTS AND REMEDY FOR INJURIES.
Sect. 1. Repairs of Easements.
Sect. 2. Remedy at Law for Injuries to Easements.
Sect. 3. Remedy in Equity for Injuries to Easements.
Sect. 4. Remedy by Abatement for Injuries to Easements.
SECTION I.
REPAIRS OF EASEMENTS.
1. General duty of repair in dominant tenement.
2. One having riglit of a well bound to repair it.
3. One bound to repair may do all that is necessary.
4. Liford's case. One repairing may enter on servient land.
5. What may be done in way of repairs.
6. When the dominant must repair servient estate.
7. As to repairing party walls.
8. Easements revive upon the restoration of means of enjoyment.
1. As a general proposition, whoever has an easement,
like a right of way, for instance, in or over another's land,
is the one to keep it in repair. He may not call upon the
land-owner to make such repairs, unless bound to do so by
covenant or prescription. And if a private way becomes
founderous or impassable, the owner of the way has no right,
in consequence thereof, to go upon other parts of the land
over wliich it lies, unless the owner of the land is bound to
make the repairs. Having such easement carries with it
the right to make all necessary repairs at all reasonable
times.^
1 Com. Dig., Chimin. D. 6 ; Pomfrct v. Ricroft, 1 Saund. 322 ; Duncan v.
Louch, 6 Q. B. 904 ; Taylor v. Whitehead, Dougl. 745, 748 ; Garrard v. Cooke,
2 Bos. & P. N. K. 109 ; Prcscott v. White, 21 Pick. 341 ; Peter v. Daniel, 5 C.
Sect. 1.] REPAIRS OF EASEMENTS. 655
But if the way be over or across a watercourse, he has no
right so to repair or maintain it as to obstruct the flow of the
stream, and if he does, to the injury of the land above, he
would be liable in damages.^
*2. Where one granted a lot of land having a [*565]
well upon it, and, in his deed, reserved to himself,
and to his heirs and assigns who might occupy a certain
dwelling-house, " the right to take water freely from the
well, <fec., or from any other well which may be sunk there,"
it was held that the grantee was not bound to keep the well
in repair, or to preserve its existence.^
But if the owner of the servient estate covenant to keep
the easement in repair, he is not exonerated from the burden
by the dominant one having actually repaired it himself, in
one case for forty years.^
3. The grant of a right to build a dam and flow the
grantor's land carries the right to erect and repair the dam
and cleanse the pond, as occasion may require.^
The grantee of a way is the party who is to make as well
as repair it.^
So where one granted to another the right to enjoy a
certain strip of land, to be used as a way in connection with
certain houses from a public highway, it was held to pass a
right to lay down a flagstone, within this space, in front of
one of those houses, for the accommodation thereof, it being
a suitable mode of repairing the same, so that it should not
be wet and dirty.^
B. 568 ; Prescott v. "Williams, 5 Mete. 429; Doane v. Badger, 12 Mass. 65, 70;
Jones u. Percival, 5 Pick. 485; Miller v. Bristol, 12 Pick. 550; 2 Fournel,
Traite du Voisinage, 358; Liford's case, 11 Rep. 46, 52; BuUard ?;. Harrison,
4 Maule & S. 387, 393 ; Rider v. Smith, 3 T. R. 76G ; Com. Dig., Chimin, D.
6 ; Ayl. Pand. 307 ; "Williams v. Safford, 7 Barb. 309 ; Robins v. Jones, C. B.
26 Law Rep. 291 ; Gillis v. Nelson, 16 Louis. An. 279.
1 Haynes v. Bm-lington, 38 "Verm. 360.
2 Ballard v. Butler, 30 Me. 94.
3 Holmes v. Buckley, 1 Eq. Cas. Abr. 27.
* Frailey v. "Waters, 7 Penn. St. 221.
5 Osborn v. "Wise, 7 Carr. &P. 761.
6 Gerrard v. Cooke, 2 Bos. & P. n. e. 109.
656 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. VI.
But where one had acquired a prescriptive right of way,
by long-continued use and enjoyment, it was held that he
did not thereby acquire a right to dig ditches in the
[*566] servient *estate for the purpose of repairing the way,
unless he had gained this right by use and enjoy-
ment, as he had that of the way itself.^
M. Fournel states the French law upon the subject of the
right to do acts upon the freehold of the servient tenement,
by the way of repairing a way or an aqueduct, as being
much more restricted than what might be done in the origi-
nal construction of such way. He quotes the civil law :
Aliud est enim reficere, longe aliudfacereP'
4. In Liford's case, it is said : " The law giveth power to
him who ought to repair a bridge to enter into the land, and
to him who hath a conduit within the land of another to
enter the land and mend it when cause requireth, as it was
resolved in 9 Ed. IV. 35," where it was held that the right
to scour and amend a trench was incident to a grant of a
right to dig it in another's land for the purpose of drawing
water through the same ; ^ and the same doctrine is sustained
in Peter v. Daniel.*
5. The law upon the subject is thus stated by Mr. Burge : ^
" With the exception of the servitude onus ferendi, where
the owner of the servient tenement is bound to repair that
which is used for the support, the owner of the dominant
tenement is bound to keep in repair the way or other means
by which he uses the servitude. Thus the person entitled to
a servitude of drain must at his own expense cleanse and
repair it. So the dominant of a road must keep it in order
for his own use, and any stipulation to the contrary imposes
1 Capers r. M'Kee, 1 Strobh. 164.
2 2 Fournel, Traite du Voisinage, 362 ; 5 Duranton, Cours de Droit Fran-
9ais, 626; D. 43, 19, 3, 15.
3 Liford's case, 1 1 Rep. 46, 52.
« Peter v. Daniel, 5 C. B. 568 ; 3 Toullier, Droit Civil Fran9ais, 508 ; D. 8,
4, 11, 1.
6 3 Burge, Col. & F. Law, 443.
Sect. 1.] REPAIRS OF EASEMENTS. 657
a personal obligation superadded to the servitude. The
owner of the dominant has the right, as a- part of
the * servitude, to perform at his own expense all [*567]
such works as are necessary for preserving and mak-
ing use of the servitude, and so he is entitled to have access
to make the necessary repairs. The owner of the servient
estate can do nothing to diminish the use or convenience of
the servitude to the owner of the dominant. Nor can the
owner of the dominant enlarge his use so as to increase the
burden on the servient, unless, in so far as such change
of use may be necessary in order to make the servitude ef-
fectual."
Though for the doctrine above stated Mr. Burge has
chiefly cited authorities from the civil and Scotch law, it is
apprehended that the rules here laid down are equally
established as a part of the common law. One or two cita-
tions may be added to those above given, sustaining the
views expressed by him. Thus Duranton, after saying that
the owner of the dominant estate may do whatever is neces-
sary to his enjoying a servitude upon another's tenement,
adds, that this must be at his own charge, and not at that
of the owner of the servient estate, since it is of the very
nature of a servitude that he who has the right to it is
the one to act, while the other is only to suffer and not
to do.i
And, by the Scotch law, the servitude oyius ferendi does
not, as it did by the civil law, impose upon the servient es-
tate the burden of maintaining the wall at his charge.^
6. Where the easement is of a character that a want of
repair injuriously affects the owner of the servient land, it
becomes not only the right but the duty of the owner of the
easement to cause all necessary repairs to be made. As, for
instance, if one has an aqueduct by pipes or a gutter across
1 5 Duranton, Cours de Droit Fran9ais, 619, 620; 3 Toullier, Droit Civil
Fran^ais, 501 ; Ayl. Tand. 307, 309; Gillis v. Nelson, 16 La. An. 275.
2 3 Burge, Col. & F. Law, 404.
42
658 THE LAW OF EASEMENTS AND SERVITUDES. [Cu. VI.
the land of another, he is bound to keep these in repair, so
that the owner of the land shall not be damaged by the want
of such repair.^
[*568] *7. For the law relative to the repairs of party-
walls reference may be had to a former part of the
work in which the subject is treated of.^
8. It may be observed, as a well-settled rule of the civil
law, which would doubtless be regarded as a part of the
common law, that, if a house, a wall, a water-spout, or any-
thing of that kind with which or by which a servitude exists
or is enjoyed, is destroyed, and the same is afterwards, with-
in the period of prescription, reconstructed or restored, what-
ever may have been the servitudes connected therewith, they
are, by such restoration, revived.^
SECTION II.
REMEDY AT LAW FOR INJURIES TO EASEMENTS.
1. Action lies for an injury to a right, though no damage.
2. Owner of easement not affected by suit between others.
3. Distinction in remedy for injury to private and public easement.
4. Action for injury to easement, Case and not Trespass.
5. When actions for such injury are local.
6. Any one in possession may have the action.
7. Right of easement not triable in ejectment.
8. Right of easement no bar to a real action.
9. When one liable for continuinr/ a nuisance.
10. Norton v. Volentine. Continuing nuisance to natural easement.
11. When notice necessary to sustain action for nuisance.
12. After easement destroyed, ahenee of the estate not liable.
13. Lessor liable for nuisance on the demised estate.
14. Grantor with warrantj', when liable for nuisance.
15. One who erects nuisance on a third person's land liable.
16. Of justifying under a right of easement for a trespass.
1. Although it is not proposed to dwell at any length
1 Egremont v. Tulman, Mood. & M. 404 ; Bell v. Twentyman, 1 Q. B. 766.
2 Ante, chap. 4, sect. 3, pp. *459, *472.
3 TouUier, Droit Civil Franfais, 522 ; D. 8, 2, 20, 2,
Sect. 2.] REMEDY AT LAW FOR INJURIES TO EASEMENTS. 659
upon the forms of pleading or rules of evidence applicable to
an alleged violation of a right of easement, there seems to
be an obvious pi-opricty in treating briefly of the
remedy * which the law has provided to secure to [*569]
one the enjoyment of such a right, or an adequate
redress for being unlawfully deprived thereof. These reme-
dies are either in equity or at common law, and may be con-
sidered separately.
Though it is, generally, true that, in order to maintain
an action at law for the recovery of damages, something
amounting to an actual loss or injury must be shown to
have been sustained on the part of the plaintiff, it is now
settled, as an elementary principle, that one having an in-
corporeal hereditament, like an easement, may maintain an
action to vindicate his claim to the same, if he can show a
violation of his right to enjoy it, although he may be unable
to show any actual damage or loss occasioned thereby. The
law, in order to protect him from a repetition of such acts
as might, in time, defeat or impair his right, will presume
damages to have resulted therefrom, and, by a rendition of a
judgment therefor, establish his right and protect it from in-
terruption.^ A writer in the Law Magazine and Review ex-
amines two or three leading English decisions upon the sub-
ject of when an action must, and when it may be maintained
for an injury to a right, and whether it must be brought
when the act is done which causes the damage, or it may be
delayed until the damage has actually been caused. This
bears, too, upon the question of the action being barred by
the statute of limitations.
The writer cites Nickliii v. "Williams ^ and Bonomi v.
Backhouse,^ both of which, it is said, were overruled in the
1 Ante, p. *229, and cases cited. See also Ashby v. White, 2 Lord Raym.
938 ; Woodman v. Tufts, 9 N. H. 88 ; Northam v. Hurley, 1 Ellis & B. 665,
673 ; Tillotson v. Smith, 32 N. H. 90, where defendant turned a new stream into
an old one ; Smith L. Cas., 5th Am. ed. 105 et seq.
2 Nicklin v. Williams, 10 Exch. 259.
3 Bonomi v. Backhouse, E. B. & El. 622.
660 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. VI.
Court of Exchequer Chamber, revising the former cases,'
"whereby it was established, that it is the doing of damage to
the owner of the surface by excavating for minerals under it
by one who owns them, that gives the right of action, and not
the excavation that may do such damage, if it has not yet
actually caused it. And he adds, " This very important
question is thus now settled upon true principles of justice,
and, we may add, of expediency. It is better, both for own-
ers of surface land and owners of mines, that the cause of
action should accrue upon the happening of actual damage
rather than upon an imaginary injury to a right." ^
But it is still true, that an action will lie for a violation of
a righty although no actual damage has been done. The
rule given in this respect is, " whenever an act injures anoth-
er's right, and would be evidence in future in favor of the
wrong doer, an action may be maintained for an invasion of
the right, without proof of any specific damage." ^
2. Another circumstance, in connection with the vindica-
tion of rights of easements by actions at law, which has
already been referred to, is that the claimant of such right
would not be affected by any judgment which might be
rendered in a real action brought by a stranger against the
owner of the servient estate, to recover possession of the
same.*
8. There is a clear and well-sustained distinction between
a right to maintain an action for an infringement of one's
right to use a private, and that of using a public way. In
the latter, in order to maintain a personal action, the plain-
tiff must show special damages sustained by himself
[*570] in *order to recover. In the former, he only need
show the violation of a right.^
1 Bonomi v. Backhouse, E. & B. & El. 646.
2 10 Law M. &E. 182.
3 E. & B. & El. p. 657 ; Mellor v. Spateman, 1 Wms. Sannd. 346 b ; 96 Eng.
C. L. Rep. 659 note.
^ Hancock V. Wentworth, 5 Mete. 446.
6 Atkins V. Bordman, 2 Mete. 456, 469 ; Greasly v. Codling, 2 Bing. 263 ;
Sect. 2.] REMEDY AT LAW FOR INJURIES TO EASEMENTS. G61
4. Where the action is to recover consequential damages
for interfering with the pkiintitf 's right of casement, and
not for an act done upon his own land, the form of the ac-
tion is case, and trespass will not lie.^
5. If it be for obstructing a watercourse, it is local in its
nature.2 But where the act complained of is done in one
county, but the injurious consequences thereof are felt in
another, as, for instance, if one erect a dam in A, which flows
back upon another's mill in B, the mill-owner may bring
his action in the latter county.^ So where the plaintiff's
fishery in A was injured by a dam in B, it was held that the
plaintiff might sue in either county, if either of the parties
lived there.* If there are owners of a water-power upon
opposite sides of a stream, the thread of the stream being the
boundary line between their lands, they are tenants in com-
mon thereof, and if either draws or diverts more than his
undivided half of the water, to the injury of his co-tenant, he
would be liable to an action by the other owner therefor.
But questions of dijfficulty have arisen as to the nature and
form of the remedy in such case, and as to acquiring pre-
scriptive rights by adverse enjoyment, where this dividing
line is also the boundary line of two States, the period of
prescription being different in different States. Thus in one
case such stream divided Connecticut and Rhode Island, the
time of prescription in the first State being fifteen years, and
that in the other twenty years. The owner upon the Rhode
Island side diverted the water from the upper of two dams
on the stream, and did not return it again into the stream
till it had passed by the lower of these dams.
In respect to the jurisdiction which should take cognizance
Hartshorn v. South Reading, 3 Allen, 501 ; Nash v. Peden, 1 Speers, 17; Sedgw.
Damages, 141, et seq.
^ Com. Dig., Action upon the Case for a Nuisance, A ; Baer v. Martin, 8 Blackf.
317.
■■^ Mersey & Irwell Nav. Co. v. Douglass, 2 East, 497.
3 Thompson v. Crocker, 9 Pick. 59 ; Sutton v. Clarke, 6 Taunt. 29 ; Worster
V. Winnipiseogee Lake Co., 5 Fost. 525.
* Barden v. Crocker, 10 Pick. 383.
662 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. VI.
of this injury, the court held that an injury to an easement
by acts done in one State, may be sued for in that State,
though the principal estate be in another, as for obstructing
a way in A, which is appurtenant to an estate in B. In this
case, therefore, as the owner on the Connecticut side was in-
jured by the act done by the other party on the Rhode Island
side, the former may bring his action in Rhode Island for the
injury thereby done. If, for instance, the owner on the Con-
necticut side instead of this were to obtain an injunction
against the owner upon the other side in the courts of that
State in respect to the canal by which he diverts the water,
it would be inoperative, and could not be enforced in Rhode
Island, it being a proceeding quasi in rem.
And it seems that one who is injured by such an act may
have his action, either where the act is done, or the conse-
quential injury is suffered at his election. Nor could the
defendant to a suit in Rhode Island avail himself of the stat-
ute of limitation of Connecticut. The action, in this respect,
would be governed by the statute of the State in which the
action was prosecuted. So, in the courts of Rhode Island, the
parties would be governed as to what act^ would give a pre-
scriptive right by the law of Rhode Island, as, for instance, if
a mere occupation of a water privilege would give a prescrip-
tive right to the enjoyment of it in Connecticut, it would not
justify the act done in Rhode Island, where, to gain such
right, requires that it should be by an adverse occupation
and enjoyment.^
6. Any one in possession of the premises to which an
easement belongs may have an action for an obstruction or
disturbance of enjoyment of the same.^ Thus a tenant at
will may have such an action for disturbance of a right of
way or drain.^ And if the same b^ an injury to the inheri-
1 Stillman v. "White Rock Co., 3 W. & Min. 538 ; Thompson v. Crocker, 9
Pick, 61 ; 3 Lion, 141 ; Borden v. Crocker, 10 Pick. 383; Bulwer's case, 7 Co.
1. See Rundle v. Delaware &c. Canal, 1 Wallace, Jr. 275 ; Famum v. Blackstone
Canal, 1 Sum. 46.
2 3 Stephen, N. P. 2366 ; Com. Dig., Action upon the Case for a Nuisance, B.
3 Foley V. Wycth, 2 Allen, 135 ; Hastings v. Livermorc, 7 Gray, 194.
Sect. 2.] REMEDY AT LAW FOR INJURIES TO EASEMENTS. 663
tance, an action will also lie in favor of a rcTersioner.^
What would constitute such an injury is considered, among
many others, in the cases cited below.^
*7. An action of ejectment will not lie against [*571]
one claiming an easement in a parcel of land, to try
his right to enjoy the same.^
8. But the owner in fee of land may maintain a writ of
entry to establish his title to the freehold against one having
a prescriptive right of way over the same."^
9. In respect to who is liable to be sued on account of a
nuisance to a private easement, the rule at common-law is
thus stated : "An action of the case lies against him who
erects a nuisance, and against him who continues a nuisance
erected by another. The occupant, as well as the owner of
the place, suppose a house or mill, erected to the nuisance of
another, is liable in an action of the case, which may be
brought by successive owners and occupants of the place
where the injury is sustained. In short, the continuance,
and every use of that which is in its erection and use a
nuisance, is a new nuisance, for which the party injured has
a remedy for his damages. And altliough, after judgment,
and damages recovered in an action for erecting a nuisance,
another action is not to be maintained for the erection, yet
another action will lie for tlie continuance of the same nui-
sance."^ And a party aggrieved may sue the one creating
or the one continuing a nuisance, at his election.*^
10. A similar doctrine is maintained in Norton v. Volen-
^ Hastings v. Livermore, 7 Gray, 194; Com. Dig., Action upon the Case for a
Nuisance, B ; Kidgill v. Moor, 9 C. B. 3G4 ; Metropolitan Association, &c. v.
Fetch, 5 C. B. n. s. 504 ; Tinsman v. Belvidere, &c. R. R. Co., 1 Dutch. 255 ;
Brown v. Bowen, 30 N. Y. 519.
^ Baxter v. Taylor, 4 Barnew. & Ad. 72 ; Tucker v. Newman, 11 Adolph. &
E. 40; Shadwell v. Hutchinson, 3 Carr. & P. 615; Dobson v. Blackmorc, 9
Q. B. 991 ; Sedgw. Damages, 139 ct seq.
3 Child V. Chappell, 6 Seld. 246, 251 ; Wilklow v. Lane, 37 Barb. 244 ; Cald-
well V. Fulton, 31 Fenn. 483 ; Clement v. Youngmau, 40 Penn. 341.
* Morgan v. Moore, 3 Gray, 319.
* 5 Staple V. Spring, 10 Mass. 72, 74 ; Sedgw. Damages, 144.
" Eastman v. Company, &c. 44 N. H. 158, 159.
664 THE LAW OF EASEMENTS AND SERVITUDES. [Cir. YI.
tine, whereby a purchaser of an estate upon which there is a
subsisting nuisance affecting an easement upon an adjoining
estate, was held liable for continuing the same, without any
previous notice or request to remove it. The subject-matter,
however, of the injury there, was an interruption of the
natural flow of a stream by means of the nuisance com-
plained of.^
[*572] *11. The rule would doubtless be uniform in
respect to the liability of any purchaser or occupant
of an estate, for continuing a nuisance thereon, which had
been erected by a previous owner or occupant.^ But there
are cases wliere it has been held, that, before such purchaser
can be made liable, he must be notified, and requested to
abate or remove the nuisance. The rule, as laid down in
Penruddock's case,'^ is a general one, that such purchaser
would not be liable for simply continuing a structure which
causes a nuisance, until after notice and request to remove
it. And such seems to be recognized as law in the cases of
Johnson v. Lewis,* Pillsbury v. Moore,^ Plumer v. Harper,*^
and Woodman v. Tufts.'^ And the case of Norton v. Volen-
tine, under its circumstances, can hardly be considered as
opposed to these cases, for the judge, in giving the opinion,
says : "If it were necessary to decide this case upon this
point, I am not at present prepared to go the length of the
old cases, nor that in Connecticut, still less am I prepared to
say they are not well founded.^
In Michigan, however, the court doubt if it is necessary to
notify the purchaser of what constitutes an existing nuisance
1 Norton v. Volentine, 14 Vt. 239.
2 Sedgw. Damages, 145 ; 2 Hilliard, Torts, 90 ; Brady v. Weeks, 3 Barb. 157;
Bemis v. Clark, 11 Pick. 452, 485.
3 Penruddock's case, 5 Rep. 101. * Johnson v. Lewis, 13 Conn. 303.
5 Pillsbury v. Moore, 44 Me. 154.
•^ Plumer v. Harper, 3 N. H. 88. See also Carleton v. Rcdington, 1 Post.
291 ; Eastman v. Company, 44 N. H. 156 ; Snow v. Cowles, 2 Foster, 296.
7 "Woodman v. Tufts, 9 N. H. 88.
" Norton v. Volentine, 14 Vt. 239, 245. See also Salmon v. Bensley, Ey. •
& M. 189, that notice to one tenant binds his successor.
Sect. 2.] REMEDY AT LAW FOR INJURIES TO EASEMENTS. 665
to another, before he would be liable to an action for con-
tinuing it. But they hold that if such notice had been
given, and then the owner of the land affected by the
nuisance were to convey it to a third party, it would not be
necessary for him to give a new notice before bringing his
action for such continuance of the nuisance.^
So if the party who creates the nuisance continues it after
the owner of the land which is injured by it has conveyed it
to a third person, such purchaser has no occasion to notify
him of its being a nuisance before commencing an action for
continuing it.^
But it was held in Maryland, that if one buys land affected
by a nuisance, he must give notice to the party maintaining
it, before he can bring his action for continuing it.^
And the reader will find a collection of American cases
upon the subject in a note to the case of Todd v. Flight."^
12. But where the owner of the servient estate destroys
the subject-matter of the easement, as, for instance, fills up
the well from which the dominant drew water, or builds
buildings over it so that it cannot be reached, and then
conveys it to a stranger, the latter would not be liable to the
owner of the dominant estate for the loss of the easement.
It is gone before he becomes the owner.^
*13. If the owner of an estate erect a nuisance [*573]
thereon to the injury of a neighboring estate, and
demise it in that condition, he will still continue liable if the
nuisance is continued by his tenant.*^
14. The same rule would apply if the vendor conveyed
the premises with covenants of warranty ; he would be liable
1 Caldwell V. Gale, 11 Mich. 77.
- Eastman v. Company, 44 N. H. 157 ; Curtice v. Thompson, 19 N. H. 471.
3 Pickett V. Condon, 18 Md. 417.
■* Todd V. Flight, 9 C. B. n. s., Am. ed. 377, 390.
5 Ballard v. Butler, 30 Me. 94.
6 Fish V. Dodv-e, 4 Denio, 311 ; Rosewell v. Prior, 1 Lord Rayra. 713. See
Todd V. Flight, 9 C. B. n. s. 377, and note to Am. ed. ; Sedgw. Damages, 145.
QQQ THE LAW OF EASEMENTS AND SERVITUDES. [Cii. VL
for a continuance of the nuisance subsequently to the con-
veyance.^
15. And one who erects a nuisance to another's estate
would be liable for a continuance of the same, though the
erection were upon land not belonging to the defendant, and
he could not abate or remove the same without being a tres-
passer.2
16. While the owner of an easement may have an action
against the owner of an adjacent estate for a disturbance
thereof created upon his own premises, it often occurs that
one undertakes to justify acts which would otherwise be un-
lawful, as injuriously affecting another's possession, on the
ground that he had a right to do so under and by virtue of
a right of easement. And where, to an action for such in-
jury, the defendant justifies in his plea, great particularity
and precision are required in stating, for instance, the right
of way under which the defendant alleges a right to enter
upon the close of the plaintiff.
Illustrations of this are found in Wright v. Rattray ^ and
Slowman v. West.^ In the first of these it was held, that,
if the way be claimed by prescription, it must be set out in
the same manner as if it had been by grant. Thus, if one
justify, under a right of way from A over B and C
[*574] * to D, he would not sustain his plea of a right of
way over B, by showing a prescriptive right of way
from A to C, which does not extend to D. But had he set
up a claim of a way from A over B towards D, whether this
would have amounted to a justification or not, is left doubt-
ful. In the otlier, Doddridge, J. puts this case : " If a man
have a right of way from his house to the church, and the
close next his house, over which the way leads, is his own,
he cannot prescribe that he has a right of way from his
^ Wii},'goncr V. Jennaine, 3 Denio, 306, explaining Blunt v. Aikin, 15 Wend.
522 ; Scdgw. I)amaf,rcs, 145 ; 2 Billiard, Torts, 91.
- Tlionipson v. Gibson, 7 Mees. & W 456 ; Smitii v. Elliott, 9 Penn. St. 345.
^ Wright V. Rattray, 1 East, 377.
* Slowman v. West, Palm. 387.
Sect. 2.] REMEDY AT LAW FOR INJURIES TO EASEMENTS. 667
house to the church, because he cannot prcscriljc for a way
over his own land."
And the more recent case of Colchester v. Roberts is equal
Ij definite and precise in the application of these rules. The
action was trepass qu. cl. The defendant pleaded a right of
way from a highway over the plaintiff's close, to his house,
by having enjoyed the same for twenty years. The plaintiff
replied, that such enjoyment had been by plaintiff's leave
and license. On the trial it was proved that the defendant
owned a close, R, to reach which he had to go from his
house over the plaintiff's close and across a highway to the
same. The plaintiff showed that the defendant had had
leave and license to go from his house to the highway, and
thence where he pleased, without going to his close R. But
it was held that the replication did not meet the defendant's
plea, for he might have a right of way to his close A, where-
by he might go to and cross the highway, and another to the
highway, and not to go to his close R, but to some other
place on the highway, or to which the highway leads, and
that the latter way, by license, was no answer to the right
set up to go to R by passing to and across the highway.
The general right of way to the road and thence to all other
places included a right to go to R. The traverse, therefore,
by the replication, would include the right of going to the
highway, and thence to R, and as the case finds the
defendant had the last-mentioned *way, and as he [*575]
had it without leave and license of the plaintiff, the
replication was not sustained. ^
So where defendant to an action of trespass pleaded a
right of way on foot and with horses, cattle, carts, wagons,
and other carriages, for the convenient occupation of his
close K, the jury found he only had a right to cart wood
and timber over plaintiff's close. It was held that the plain-
tiff was entitled to a general verdict, for it was not averred
1 Colchester v. Roberts, 4 I\Ices. & W. 7C9.
068 THE LAW OF EASEMENTS AND SERVITUDES. [Cji. VI.
ill the plea that he was using the way to carry wood or tim-
ber on the occasion charged in the declaration.^
SECTION III.
REMEDY IN EQUITY FOR INJURIES TO EASEMENTS.
1. Where a bill in equity for an injunction lies.
2. To what class of injuries this applies.
3. Where courts restrain public nuisances.
4. Injunction not granted to individuals for public nuisance.
5. Granting injunction a discretionary power.
6. Power of courts of equity over nuisances.
7. Cases where this power has been applied.
8. Barrow v. Richard. Equity interposes where the law cannot.
9. 10. Where equity interposes, though title doubtful.
11. Where equity will not interpose till right settled at law.
12. Statute proceedings for abating private nuisances.
1. Besides his remedy by action at common law, the
owner of an easement may, as a general proposition, not
only seek redress for an infringement of his right to the
same through a court of equity, but may prevent the same,
when threatened, by an application to that court for an in-
junction to that effect. If the title of the plaintiff, in such
case, is in controversy, the court will not ordinarily
[*576] * interpose by way of injunction until the same has
been established at law, unless the injury to be done
by the threatened act is of a nature to require immediate
interference in order to prevent great and permanent mis-
cliief.
The language of Story, in his Equity Jurisprudence, upon
the subject is this : " In regard to private nuisances, the in-
terference of courts of equity, by way of injunction, is un-
doubtedly founded upon the ground of restraining irrepara-
ble mischief, or of suppressing oppressive and interminable
^ Iligham i\ Kubett, 5 Binjj. n. c. 622. See Knight i'. Woorc, 3 Bing. N. c. 3.
Sect. 3.] EEMEDY IN EQUITY FOR INJURIES TO EASEMENTS. 669
litigation, or of preventing multiplicity of suits. It is not
every case which will furnish a right of action against a
party for a nuisance which will justify the interposition of
courts of equity to redress the injury or remove the annoy-
ance. But there must be such an injury as from its nature
is not susceptible of being adequately compensated by dam-
ages at law, or such as, from its continuance or permanent
mischief, must occasion a constantly recurring grievance
which cannot be otherwise prevented but by an injunction.
A mere diminution of the value of property by the nui-
sance, without irreparable mischief, will not furnish any
foundation for equitable relief. On the other hand, where
the injury is irreparable, as where loss of liealth, loss of
trade, destruction of the means of subsistence, or permanent
ruin to property may or will ensue from the wrongful act
of erection ; in every such case courts of equity will inter-
fere by injunction in furtherance of justice and the violated
rights of the party. Thus, for example, where a party builds
so near the house of another as to darken his windows,
against the clear rights of the latter, either by contract or
by ancient possession, courts of equity will interfere by in-
junction to prevent the nuisance, as well as to remedy it, if
already done, although an action for damages would lie at
law, for the latter can, in no just sense, be deemed an ade-
quate relief in such a case." ^
And equity often interposes to protect easements and en-
force their enjoyment where there is no adequate remedy at
law, by reason of the want of privity between the owners of
the estates alleged to be dominant and servient to each
other. And this is, especially, true of that class of ease-
ments which have been called equitable.^
*2. Among the cases mentioned as those where [*577]
1 2 Story, Eq. Jurisp., Eedfield's ed., §§ 925, 926 ; 1 Fonbl. Eq., Laussat's
. ed., 3, note.
- Parker v. Nightingale, 6 Allen, 341 ; Gibert v. Petelcr, 38 Barb. 513; Brou-
wer V. Jones, 23 Barb. 153; Hubbellv. Warren, 8 Allen, 173; Tallmadge v.
East River Bank, 26 N. Y. 105, Ante, p. =**^63, and cases cited.
670 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. VI.
courts of equity will interpose for the protection of parties,
are obstructions to watercourses, the diversion of streams
from mills, and pulling down of the banks of rivers, and
thereby exposing adjacent lands to inundation, or adja-
cent mills to destruction, and digging in one's soil so as to
endanger a neighbor's buildings. So where easements or
servitudes are annexed to private estates.^
3. They can interpose in case of public nuisances, where
courts of law cannot, to restrain and prevent them when
threatened, or if they are in progress, as well as to abate
those already existing.^
4. But though a bill in equity will lie to restrain a per-
manent and continuous injury to a private easement, courts
will not in that manner aid an individual to sustain his right
to enjoy a public easement, when the injury of which he com-
plains affects the whole community.^
In Rhea v. Forsyth the court say : " Where the plaintiff's
right has not been established at law, or is not clear, but is
questioned on every ground on which he puts it, not only by
the answer of the defendant, but by proofs in the cause, he
is not entitled to remedy by injunction."*
5. But whether the court will exercise this power of
granting an injunction in any given case or not, is within
the sound discretion of the court, and it will be withheld if
it will operate oppressively or inequitably, or contrary to the
real justice of the case. Thus, where the owner of a build-
ing encouraged the owner of adjoining land to build
[*578] thereon, * the court will not stop the work on the
ground that it is likely to do an injury to the prem-
ises of the other party .^
1 2 Story, Eq. Jurisp., Redfield's ed., §§ 927, 927 a; Bardwell v. Ames, 22
Pick. 332, 353 ; Stevens v. Stevens, 11 Mete. 251.
2 2 Story, Eq. Jurisp., Redfield's ed. §§ 924, 924 a. See 2 Green, Ch. 139, note.
3 Hartshorn v. South Reading, 3 Allen, 501 ; Brainard v. Conn. Riv. R. R.
Co., 7 Cash. 506.
* Rhea v. Forsyth, 36 Penn. St. 503, 507 ; King v. M' Cully, 38 Penn. St.
76 ; Coe v. Lake Co., 37 N. H. 254.
5 2 Story, Eij. Jur., § 959 [a ; 1 Fonbl. Eq., Laussat's ed. 49, note ; Williams
Sect. 3.] REMEDY IN EQUITY FOR INJURIES TO EASEMENTS. 071
6. In a note to Ponblanque's Equity, just cited, it is said :
" In cases of private nuisance, chancery has a concurrent
jurisdiction with courts of law.^ It can order them to be
abated, as well as restrain them from being erected. On
motion, the court will sometimes order a tiling going on to
be stayed. But it will never order it to be pulled down,
without first hearing the opposite party .^ But the cases in
which chancery has interfered by injunction to prevent or
remove a private nuisance are those in which the nuisance
has been erected to the prejudice or annoyance of a right
which the other party had long previously enjoyed. It must
be a strong and mischievous case of pressing necessity, or
the right must have been previously established at law." ^
In the case of Earle v. De Hart the Chancellor says : " The
complainant is entitled to have the obstruction removed.
There is no reason why the court should not exercise a
power to abate as well as prevent the erection of nuisances,
in clear cases."
So equity may interpose and abate a dam which causes an
injury to another's land, if erected or maintained without
right.* Or it may suppress a nuisance like the corrupting
of the waters of a stream, at the prayer of an injured party .^
7. The case of Van Bergen v. Van Bergen was that of a
mill, where the plaintiff alleged that the defendant flowed
back water to interrupt its use. But the court refused to
grant an injunction, first, because the plaintiff had an ade-
V. Jersey, 1 Craig & P. 91. See Short v. Taylor & Anonymous, 2 Eq. Cas.
Abr. 522.
1 Gardner v. Village of Newburgh, 2 Johns. Ch. 162; Van Bergen v. Van
Bergen, Ibid. 272.
- Van Bergen v. Van Bergen, supra; Earle v. De Hart, 1 Beasl. 280, 287 ;
Hammond v. Fuller, 1 Paige, 197. See cases collected, 2 Green, Ch. 136, note.
3 Van Bergen v. Van Bergen, 3 Johns. Ch. 282; Reid v. GifFord, 6 Johns.
Ch. 19. See Wood v. Sutcliff, 8 Eng. L. & Eq. 217 ; Burden v. Stein, 27 Ala.
104 ; Corning v. Lowerre, 6 Johns. Ch. 439 ; Back v. Stacy, 2 Russ. 121.
* Ackerman v. Horicon Co., 16 Wise. 154; Sheldon v. Rockwell, 9 Wise. 166;
Ang. W. C. §§ 444, 445.
^ Holsman v. Boiling Spring Co., 1 M'Cart. 342. See Lewis v. Stein, 16
Ala. 214.
672 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. VI.
quate remedy at law ; and his right, moreover, at law was in
dispute. And it appeared, besides, that the plaintiff actu-
ally erected his mill after the defendant had erected
[*579] the * dam complained of, and he ought to settle his
legal rights in respect to the same before the court
could properly be called on to interpose to prevent the de-
fendant in the use of his dam.^
In Burwell v. Hobson the defendant undertook to build a
dike and embankment along the margin of a stream, the
effect of which would be to throw the water thereof upon
the land of the plaintiff on the opposite side of the stream,
and the court granted the injunction prayed for.^
Where one had an easement to lay logs, &c. upon another's
land as a mill-yard, and the owner of the land obstructed
the use of the same by placing gravel upon the land, the
court granted an injunction, and decreed damages to the
plaintiff for the injuries thereby sustained. ^
So where one in mining dug so near another's dwelling-
house as to endanger the same by weakening its lateral sup-
port by the natural soil, the court restrained any further
excavation by injunction.*
So courts of equity will restrain one mill-owner from un-
lawfully obstructing the mill-privilege of another .^
In Corning v. Lowerre, above cited, the injury complained
of and enjoined was the building of a house upon a street,
which materially injured the plaintiffs, as owners of lots
adjoining the same upon the street.*^
And in Attorney-General v. Nichol, the court held that
they would interpose to prevent one man from obstructing
the li^lit of another, where, from the circumstances of en-
1 See Simpson v. Justice, 8 Ired. Eq. 115.
2 BurwcU V. Hobson 12 Gratt. 322, 332.
8 Gurney v. Ford, 2 Allen, 576 ; Richardson v. Pond, 15 Gray.
■» Hunt V. Peake, Johns. Ch. (Eng.) 705.
& Crittenden v. Field, 8 Gray, 621 ; Bemis v. Upham, 13 Pick. 169; Ballon
V. Ilopkinton, 4 Gray, 324 ; Hill r. Sayles, 12 Gush. 454.
'' Corning v. Lowerre, 6 Johns. Ch. 439. See Hills v. Miller, 3 Paige, 254.
Sect. 3.] REMEDY IN EQUITY FOR INJURIES TO EASEMENTS. 673
joyment, usage, or interest, some contract can be implied
that the adverse party should not build upon the premises
on which he has erected the obstruction, if the
*consequences of the act of obstruction appear to [*580]
be such as should not only be redressed, but pre-
vented. But they will not do this upon every degree of
darkening one's lights and windows, though ancient, nor in
every case where an action upon the case could be sustained.^
8. On the other hand, equity will sometimes interpose to
prevent the doing of an act injurious to the plaintiff's estate,
although he would be without remedy for the injury by an
action at common law. Thus in the case of Barrow v. Rich-
ard, where M., having a large parcel of land in a city, cut it
up into building-lots, and sold them to sundry individuals,
taking a covenant in the deed of each that no offensive trade
should be carried on in the premises. The plaintiff was one
of these purchasers, and the defendant another. The de-
fendant having begun to carry on such a business, it was
held that, upon the plaintiff's complaint, the court would
enjoin him, although the plaintiff could not maintain an
action upon the covenant into which the defendant had
entered with the vendor.^
9. But in Biddle v. Ash the court refused to restrain one
from building so as to stop the plaintiff's lights, because the
title was doubtful and in controversy, though they held that,
if the plaintiff were to make out a case of clear right by
contract or ancient possession, they would enjoin against the
erection of any nuisance which should darken his lights or
interfere with his right of way.^
10. Accordingly the court, in Robeson v. Pittenger,^
granted an injunction against building a wall which dark-
1 Attorney-General i\ Nichol, 16 Ves. 338.
2 Barrow v. Richard, 8 Paige, 3.51 ; Trustees, &c. of Watertown v. Cowen, 4
Paige, 510, 514 ; Bedford v. Trustees of British Museum, 2 Myine & K. 552.
See ante, p. *63, *576.
3 Biddle v. Ash, 2 Ashm. 211.
* Robeson v. Pittenger, 1 Green, Ch. 57.
43
674 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. VI.
ened the lights of the plaintiff. And in Shields v. Arndt ^
they granted a like injunction, to prevent the diver-
[*581] sion of *the water of a stream, and that without
first having the title of the party to do so tried at
law, the right claimed by the plaintiff having been long
enjoyed. They recognize, however, the ordinary rule to be,
to have questions of doubtful title settled at law before
equity will interpose by way of injunction.
11. But if the injury be a reversionary one, and is not in
its nature irreparable, or can be compensated in damages,
the court will not grant an injunction. Nor will they where
the plaintiff's title is doubtful, and there is no danger of
irreparable mischief therefrom, until after an issue of fact
tried at law.^
12. In Massachusetts there is provision made by statute
that, after a judgment upon proceedings at common law for
the recovery of damages for a private nuisance, the court
may issue a warrant to an officer, authorizing him to abate
and remove the nuisance, at the expense of the defendant.
And in this the statute is little more than carrying out the
principle of the common law.^
In South Carolina there is a statute authorizing certain
authorities to cause dams or embankments to be abated,
which one may erect upon his own land, across streams,
which prevent the natural flow of the water in the same, to
the injury of another's land, above such dam, unless the
owner of such dam or embankment shall have made an
artificial drain on his own land, and kept the same in repair,
suitable to draw off" such water into the natural stream.
These regulations have reference to the culture of rice-
swamps in that State.^
1 Shields v. Arndt, 3 Green, Ch. 234, 245, 246.
'■^ In^raham v. Dunnell, 5 Mete. 118 ; Dana v. Valentine, 5 Mete. 8.
" Mass. Gen. St., c. 139; Stevens v. Stevens, 11 Mete. 251 ; Baten's case, 9
Rep. 55. Sec IJemis v. Clark, 1 1 Pick. 452.
* ]Jri.st)ano v. O'Ncall, 3 Strobli. 348.
Sect. 4.] REMEDY BY ABATEMENT FOR INJURIES. 675
*SECTION IV. [*582]
REMEDY BY ABATEMENT FOR INJURIES TO EASEMENTS.
1. General right of party injured to abate a nuisance.
2. Care in one abating not to exceed his right to do so.
8. Greenslade v. Halliday. Case of exceeding this right.
4. One having the right nnay do it effectually.
6. Abating a mill-dam in part, though spoiling the privilege.
6. One may not injure third parties to protect his own estate.
7. Within what time the rigiit of abatement is to be exercised.
8. Of the effect of danger to the peace in abating a nuisance.
9. Abatement no bar to an action for the nuisance.
1. In cases of violation of a right like that of an ease-
ment, by the wrongful acts of another in erecting upon his
own land that which causes such injury, the party whose
right is thereby invaded is not obliged to seek his redress by
a suit at law, or proceedings in equity, but may vindicate the
same by his own act, by entering upon the land of such
wrong-doer, and abating:, as it is called, the cause of such
injury. The language of Coke is : " Note, reader, there are
two ways to redress a nuisance, — one by action ; and that
is to recover damages, and have judgment that the nuisance
shall be removed, cast down, or abated, as the case re-
quireth ; or the party grieved may enter and abate the
nuisance himself, as it appeareth by 17 Edw. III. 44 and 9
Edw. IV. 35." 1
2. But the party exercising this right of abating a nui-
sance to his property must be careful not to exceed the right
by doing more than he is justified to do. Thus, one
*injured in his property by another raising his dam [*583]
higher than he had a right to do, and thereby flowing
1 Baten's case, 9 Rep. 5.5 ; Perry v. Fitzhowe, 8 Q. B, 757 ; Penruddock's
case, 5 Rep. 101 ; Great Falls Co. v. Worster, 15 N. H. 412; Adams v. Bar-
ney, 25 Vt. 225 ; Amick v. Tharp, 13 Gratt. 564, 567 ; Rex v. Rosewell, 2 Salk.
459 ; ante, chap. 3, sect. 5, pi. 14 ; 2 RoUe, Abr., Nuisance, S ; Raikes v. Towns-
end, 2 Smith, 9 ; Com. Dig., Action on the Case for a Nuisance, D. 4; Rhea v.
Forsyth, 37 Penn. St. 503.
676 THE LAW OF EASEMENTS AND SERVITUDES. [Cii. VI.
back water upon the same, may enter upon the premises of
the owner of the dam, and abate the same to its proper
height. But he may not abate it altogether, nor beyond
what is necessary to reduce the flowing to its proper limits ;
and the same rule applies to all cases of abating nuisances
by the party's own act.^
3. Thus, in Greenslade v. Halliday, one had a right to
divert the water of a stream for the purpose of irrigating his
land, by placing loose stones or a board across the stream.
He drove stakes in the stream to support the board more
firmly than it had been previously done, but which he had no
right to do ; and another, who was interested in the water,
entered upon the premises, and removed the stakes and the
board ; and it was held that he was liable for the removal
of the board, though he might have removed the stakes.
So in Dyer v. Depui, one having erected a house so high
as to obstruct the ancient windows of another, it was held
that the latter might abate so much of the house as obstruct-
ed his lights, but could not destroy the entire house.^
But the party will not be justified in abating by his own
act an erection upon his neighbor's land, until he shall have
actually been injured by it. It is not enough that he
apprehends the structure will injure him, or that the one
erecting it intends to use it so as to injure him.
[*584] *in the enjoyment of his estate. He must wait until
it has begun to injure him before he can enter upon
his neighbor's land to abate it.^
1 Dyer v. Depui, 5 "Whart. 584 ; Heath v. Williams, 25 Me. 209 ; Jewell
». Gardiner, 12 Mass. 311; Hodges v. Eaymond, 9 Mass. 316; Greenslade v.
Halliday, 6 Bing. 379; Colburn v. Richards, 13 Mass. 420; Gates y. Blincoe,
2 Dana, 158; Prescott v. Williams, 5 Mete. 429 ; Prescott v. White, 21 Pick.
341 ; Rex v. Pappineau, Strange, 686 ; Perry v. Fitzhowe, 8 Q. B. 757 ; James
V. Hayward, W. Jones, 221, 222 ; Rex v. Rosewell, 2 Salk. 459; Mason v.
Cajsar, 2 Mod. 65 ; Davies v. Williams, 16 Q. B. 546 ; Moffctt v. Brewer, 1
Green, Iowa, 348; Elliot v. Fitchburg R. R. Co., 10 Cush. 191; Wright v.
Moore, 38 AJa. 599.
2 Sec also Rex v. Pappineau, supra.
8 Norris v. Baker, 1 Rolle, 393 ; Jones v. Powell, Palm. 536.
Sect. 4.] REMEDY BY ABATEMENT FOR INJURIES. 677
Though if his neighbor erects his house with eaves pro-
jecting over his land, he need not wait till the rain shall have
actually fallen upon his neighbor's roof, and been thereby
thrown upon his land, before he may abate the part that
projects over his land.^
4. But if one having a right of easement in another's
premises unlawfully extends the use of the same, or uses it
in connection with rights not belonging to them, the owner
of the tenement may stop the excess of such use ; and if he
cannot do this without stopping its use altogether, he may
do so, until a separation of the lawful from the unlawful use
can be made, and the illegal part is stopped by itself.^
So if the branches of a tree growing in one's land extend
beyond the line of the same, and over his neighbor's land,
the latter may cut them off so far as they extend over his
land.^
5. And this doctrine of the right of abating a nuisance
by one's own act was applied in the case of two owners of a
mill-privilege divided by the thread of the stream, where
one of them erected a dam across the entire stream. It was
held that the owner of the land upon the other side of the
thread of the stream might abate so much of the dam as
stood upon his land.*
If in abating the dam upon his own land he do no more
than is necessary to remove it, but the effect is to have the
whole water of the pond escape, and the other part
of the *dam to fall, he would not be responsible for [*586]
these consequences. And it is said : " So if one
erects a wall upon his own land and the land of his neighbor,
and the neighbor pulls down the wall upon his land, and
thereupon all the wall falleth down, this is lawful." ^
1 Penruddock's case, 5 Rep. 101.
2 Elliott V. Rhett, 5 Rich. 405, 421. See ante, as to lights, p. *.540.
^ 3 Sharsw. Black. Comm. 5, and cases cited.
* Adams v. Barney, 25 Vt. 225 ; Merritt v. Parker, Coxe, 460 ; Aug. Water-
courses, § 332.
* Wigford V. Gill, Cro. Ellz. 269.
678 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. VI.
6. Upon tlie same principle, one may protect his property
against being overflowed by the unlawful act of another,
by erecting embankments along the stream, provided hy so
doing he does not injure the land of a third party, who took
no part in causing such overflowing. " But," says Daniel,
J., in Amick v. Tharp, " The circumstances which justify
a resort to counter works, which must result in damage to
the property of the wrong-doer, are by no means clearly de-
fined." In that case, the city had turned the course of a
spring on to the defendant's land, which he stopped, and
thereby caused the water to set back upon the plaintiff" 's
land ; and for this the defendant was held liable.^
7. The court in Iowa held, in the case of Moffit v. Brewer,
that, in order to justify one in going upon another's land to
abate a nuisance, he must do it within a reasonable time
after the nuisance was created, or began to operate as a nui-
sance upon him ; and if he forebore to exercise the right
within such reasonable time, his only remedy would be by
a resort to legal proceedings, though they add, upon the
point, " We have very little law before us." ^
8. And in Perry v. Fitzhowe the court held, that, if a
dwelling-house constitutes a nuisance to a commoner, though
he might abate it if unoccupied, he might not do so while
actually occupied by a family, because of the almost
[*586] *necessary risk of life and breach of the peace. And
it would seem, moreover, that, if the nuisance com-
plained of had been erected by another person than the occu-
pant thereof, the party thereby injured should give notice to
the owner, and request him to abate it, before he might
actually proceed to abate it himself.^
1 Amick V. Tharp, 13 Gratt. 567.
2 Moffit V. Brewer, 1 Green, Iowa, 348, 351. See Bract., fol. 233, § 1.
The language of Bracton is : " Ea vero quae sic levata sunt ad nocumentum
injuriosuni, vel prostrata vel demollita A'to/)>H ci recentei- flagrante malcflcio (sicut
aliis disseysinis) dernoUiri possunt ct prosterni vel relevari ct reparari si quereus
ad lioc suffioiat."
» Perry v. Fitzhowe, 8 Q. B. 757, 776 ; Davies v. Williaras, 16 Q. B. 546, 556 ;
Jones V. Williams, 11 Mees. & W. 176, 182.
Sect. 4.] REMEDY BY ABATEMENT FOR INJURIES. 679
The rules upon this subject, as stated by writers upon the '
French and civil law, may be briefly alluded to in this con-
nection, as they throw light upon some parts of the common
law.
The French and civil law apply the doctrine of prescrip-
tion to the case of losing, in the same way as in gaining, a
servitude, with the exception that, by the Code Napoleon,
thirty years is the uniform period which will operate to ex-
tinguish a servitude by non-user. Extinguishment in such
a case rests upon a presumed abandonment of the right.
But this presumption may be met by showing that the cesser
to use was the result of obstacles thrown in the way of such
use without the fault of the owner, which had rendered the
enjoyment of the right impossible. By the Roman law, if
the enjoyment of a servitude were suspended by obstacles
which the owner thereof could not prevent, it revived again,
and became re-established, when the premises were restored
to their former condition. And Lalaure, a French writer
of high authority, illustrates the proposition by supposing
three tenements. The first acquires, by grant from the
third, an easement of view in favor of his tenement over
and across that of the third, there being nothing at the time
upon the intermediate estate to prevent the owner of the
first enjoying this right of prospect across the third. The
owner of the second estate then erects upon the same a
house so high as wholly to obstruct the view of the first in
the direction of the third, whereupon the third erects
a *house upon his estate ; and this state of things [*587]
continues for thirty-one years, when the interme-
diate house is destroyed by fire. The owner of the first
then insists upon his right of servitude of prospect over
the tliird estate. The question raised is, whether this
right has not been lost by cesser of enjoyment for thirty
years. Lalaure and Domat insist that it was not lost,
the obstacle which prevented such enjoyment having been
interposed by the act of a third party, which the owner
680 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. VI.
could not control. But M. Toullier maintains that it was
laches on the part of the first owner in not having obtained
command of the second tenement, so as to enjoy what he
had purchased of the third, and that if he allowed this to
continue for the term of thirty years, he would lose the
right by prescription. ^
Abandonment is to be presumed where the owner of
a right has neglected to use it while at liberty to do so.
And if the servitude be a discontinuous one, like that of
a way or a right to draw water, the time from which pre-
scription runs is from the last act of user done under it. If
the servitude be a continuous one, like that of eaves'
drip or of prospect, the time of prescription runs from the
doing of some act which conflicts with the right of servi-
tude.2
Where the interruption of the enjoyment of a right of
servitude is caused by the act of God, and the capacity of
enjoyment is again restored, that the right will revive is a
doctrine both of the Roman and French laws. Thus, where
a spring, from which the dominant estate drew water in
the servient land, became dry, and after a lapse of years
began to flow again, prescription would not bar the right
during this suspension. So where the servient estate
across which was the servitude became inundated by the
waters of the sea, and submerged, and after a course of
years the waters receded again, the same principle was
applied. 3
[*588] *0n the other hand, if one own a house with a
servitude of prospect or right of view belonging to
it, and the same is burned, and the owner of the adjacent
estate build thereon so as to obscure this view, and after
thirty years the first owner rebuilds his house, the servitude
1 3 Toullier, Droit Civil Franrais, 524, .526, 533 ; Lalaure, Traitc des Servi-
tudes, 71, 72 ; Domat, B. 1, tit. 12, 4 6, Art. 4.
- 3 Toullier, Droit Civil Fram/ais, 528, 529.
3 Ibid. 530 - 532.
Sect. 4.] REMEDY BY ABATEMENT FOR INJURIES. 681
belonging to the first will have been lost. His forbearing to
do what he might have done is a presumed abandonment of
the right.^
In respect to what acts one must do in order to retain his
right of servitude, and prevent it being barred by a presumed
abandonment, several rules have been applied. In the first
place, if he does more than he has a right to do under the
servitude, and it is of the same character in matter and
manner with what he has a right to do, it will save the
servitude, upon the ground that the greater always contains
the less. Thus if one has a right of footway, and passes in
a carriage, or has a right to water five cattle, and drives ten
to the spring to drink, he will thereby save the right so far
as it lawfully belongs to him. On the other hand, if the
servitude is in its nature separable into what is greater or
less in its parts, and one, possessed of the greater, use only
the less, for the period of prescription, he will lose the excess
over and beyond what he has during that time exercised and
enjoyed. If one has a right to draw water from another's
well at all times, both in the day and night, and forbears to
use it during the night for thirty years, he may still retain
the servitude of drawing during the day, but lose it for
other periods.^
The mode of using a right of servitude often becomes
essential in determining how far one has retained it. The
civil law is thus stated : " Itaque differentia est inter aliud
facere et plus facere, qui aliud facit, servitutem amittit non
utendo, qui plus facit, servitutem non amittit." This applies
where the servitude is not apparent and continuous,
and the same *is exercised in a manner different [*589]
from what one has a right to do. In such case, he
loses his right by lapse of time. He did not do what he had
a right to do, but something else. But if the servitude be
apparent and continuous, and one to whom it belongs exer-
1 3 TouUier, Droit Civil Franyais, 535.
2 Ibid. 535, 536, 538 ; Domat, B. 1, tit. 12, § 6, Art. 5.
682 THE LAW OF EASEMENTS AND SERVITUDES. [Cn. VI.
cises it for thirty years, but in part only, he loses the right
beyond the use thus made. But if he uses and enjoys more
than he has a right to, for thirty years, he acquires thereby
a servitude to the whole extent of his enjoyment.^
It may be added, that it is not necessary that the owner of
the servitude should himself do the acts requisite to retain it
by user. If, for instance, it be a right of way, it would be
sufficient if it were used by a workman, a friend, or even a
stranger in making a visit to the owner of the servitude.^
And it may be further remarked, that the same rule ap-
plies as to successive owners of the dominant or servient
estate, in respect to losing, as in acquiring, easements. The
period of prescription which has run against, or in favor of
a former owner, will be added to that of his vendee or suc-
cessor, in completing the requisite period to gain or lose the
servitude.^
But in Davies v. Williams, above cited, it was held that,
after notice and demand of the tenant to remove the house,
the owner of the right of common, with which the house un-
lawfully interfered, might pull it down, although the family
of the tenant were actually in it at the time. But the case
affirms the necessity of a demand and notice to the tenant to
remove the house, before proceeding to abate it.
The court had previously, in Burling v. Reed, taken occa-
sion to limit and modify the doctrine of Perry v. Fitzhowe,
in which case the plaintiff owned the house, by saying, that
if the party in the house did not own it, and was
[*590] a stranger, * his being in the house was no reason
why the owner of it might not do what he liked
with it.*
The question of how far the grantee of the estate that is
injured may avail himself of his right of abating a nuisance
1 3 Toullier, &c, 536 - 539.
'■^ Pardessus, Traite des Servitudes, 451, 465.
^ Pardussus, Traite des Servitudes, 451, 465 ; 3 Toullier, Droit Civil Franyais,
542; Domat, B. 1 tit. 12, ^ 6, Art. 8.
■» Uurling v. Reed, 11 Q. B. 904.
Sect. 4.] REMEDY BY ABATEMENT FOR INJURIES. 683
upon the land of another which was erected by the grantor
of the latter estate, is settled in Penruddock's case, where it
was held that in such a case the owner of tlie former estate
must notify the owner of the latter to remove it, unless it be
immediately dangerous to life and health ; and if he do not
remove it, the former may proceed to abate it himself in the
same manner as his grantor might have done against tlie
grantor of the other estate, and that he need not wait, be-
fore so doing, till he shall have actually suffered prejudice
by the erection which causes the nuisance.^
In the case of Salmon v. Bensley the court held, that an
action would lie against a tenant for continuing a nuisance,
if his immediate predecessor had been notified to remove it.
" I am," says Abbott, C. J., " of opinion that a notice of this
nature, delivered at the premises to which it relates, to the
occupier for the time being, will bind the subsequent occu-
pier. And that a person who takes premises upon which a
nuisance exists, and continues it, takes them subject to all
the restrictions imposed upon his predecessors bj^ the receipt
of such a notice." ^
9., The abatement of a nuisance, moreover, does not oper-
ate as a bar to an action for the recovery of damages occa-
sioned thereby prior to such abatement.'^
The law on this subject may be summed up in the lan-
guage of Blackstone : " A fourth species of remedy by the
mere act of the party injured is the abatement or removal
of nuisances. Whatever annoys or does damage to another
is a nuisance ; and such nuisance may be abated,
that is, * taken away or removed by the party ag- [*591]
grieved thereby, so as he commits no riot in the
doing of it. If a house or wall is erected so near to mine
that it stops my ancient lights, which is a private nuisance,
I may enter my neighbor's land and peaceably pull it down.
1 Penruddock's case, 5 Rep. 101 ; Jones v. Williams, 11 Mecs. & W. 176.
2 Salmon v. Bensley, Ry. & M. 189.
8 Call V. Buttrick, 4 Cusii. 345.
684 THE LAW OF EASEMENTS AND SERVITUDES. [Ch. VI.
And the reason why the law allows this private and sum-
mary method of doing one's self justice is because injuries of
this kind, which obstruct or annoy such things as are of
daily convenience and use, require an immediate remedy,
and cannot wait for the slow progress of the ordinary forms
of justice." ^
1 3 Black. Com. 5.
INDEX.
A.
ABANDONMENT,
effect of exchano^e as to, on rights of way, 258-263, 633.
what constitutes an act of, of an easement, 631, G32, 634, 639.
the party must intend it, or another be misled by it, 632, 634.
is a question for the jury, 633, 239, 645.
what amounts to, of a mill-privilege or power, 414, 634, 637 - 639,
646,647. (See Mill Laws.)
what would be of a way, 635, 636, 637.
what would be of the right of light, 634 - 636.
how far inferred from non-user, 636, 639 -648.
by neglecting to restore, when user lost by accident, 638.
what would be of an aqueduct, 641.
no length of non-user is, if gained by grant, 641.
whether non-user is, of what was gained by user, 644 - 646.
when riparian owner must inquire before presuming one, 648.
distinction between and an interruption by license, 652.
whether tenant for life can by it affect reversioner, 414.
right suspended by act of God, is not one, 638.
right may be destroyed by changes in the estate, 639.
whether one can exercise it to the injury of another, 389.
can only be made by one having disposing power over the estate, 414.
ABATEMENT,
in what it consists as applied to private nuisances, 675.
right of, limited by what is necessary, 675, 676.
may not be done by causing a nuisance to a stranger, 6 78.
when an entire cause of a partial nuisance may be abated, 677.
applied to causing water to injure lands or mills, 365.
how far applicable to an excessive use of water, 366, 676.
mill-owner may abate a dam that flows upon his mill, 408.
owner of ancient windows may abate what darkens them, 676.
in what cases owner must wait till actually injured, 676, 677.
within what time the right must be exercised, 6 78.
when not to be exercised, until after notice given, 678, 682.
notice to one tenant binds his successor, 683.
how far a dwelling-house may be abated when a nuisance, 678, 682.
686 INDEX.
ABATEMENT, Continued.
if exercised, is no bar to an action for prior damages, G83.
in what cases equity decrees, it, 670, 671.
statutory provisions for abating nuisances, 074.
ABUSE
of an easement does not work extinguishment, 627.
ACCEPTANCE,
necessary to give effect to dedication, 180, 208.
a different rule for squares and streets, 205.
how made and how established, 189 - 200, 202, 203.
what user may be evidence of, 189, 191.
may be a partial one, to a dedication, 188.
ACCESS,
means of, as used, passes with land, 74.
ACCIDENT,
party not responsible for effect of, 362.
ACCRETION,
rights of owners as to, 392, 393.
ACQUIESCENCE,
by owner necessary to give easements, 105, 124, 152, 154, 155, 158.
by owner in dedication when presumed, 184.
negative, if owner objects to the user, 154, 155.
effect of, in a change in the natural current of a stream, 392.
ACTION AT LAW,
lies for unreasonable use only of water, 282, 304.
lies for injury to a right though no damage, 282, 295, 569.
when the only remedy for injury to mills, 366.
when trespass will not lie for obstructing watercourse, 376.
for injury, whether it waits till damage arises, 560.
at common law, taken away by mill laws, 402.
lies only for legal or appreciable damages, 330.
lies for disturbance of easements, 9, 287, 662.
any one in possession may bring for an injury done, 662.
tenant at will may have, for disturbance of easement, 662.
case and not trespass the form of, 661.
ejectment will, not lie to try title to easement, 663.
for injury to watercourse, local, 661.
a reversioner may sue for injury to the inheritance, 662, 663.
who liable to, for creating or continuing a nuisance, 663 - 665.
of trespass qu. cl. lies for entering a pew, 604.
for nuisance not barred, by abating it, 683.
{See Remedy, &c.)
ACT OF GOD,
effect if easement destroyed by, 625, 638.
if it ceases to operate, easement revives, 638, 680.
INDEX. 687
ACTUS,
■what is a servitude of, at the civil law, 216.
ADITUS,
an easement by the civil law, 216.
AD QUOD DAMNUM,
writ of when applied, 422 - 426.
what is determined under, 422.
used to prepare for erection of mills, 422 - 426.
ADVERSE USER,
in what it consists, 124 - 136.
must be an invasion of a right, 130, 131, 133, 284.
it may be, though upon unenclosed lands, 130.
must be known to be adverse, 128.
may become so, though begun by permission, 127.
not always so, though without permission, 127.
unexplained for twenty years, presumed to be, 129, 135.
generally is, if applied whenever one wishes, 130.
whether it is, depends upon intention, 132, 134, 284.
is of no avail as to title, if owner cannot resist, 156.
distinction as to, between easements and lands, 155.
does not affect reversioner or remainder man, 156.
how far it may be in artificial watercourses, 372, 373, 379.
when it may be in another's trench, in one's own land, 379.
when it may extinguish a dedication, 211, 212.
different rules as to flowing in Maine and Massachusetts, 405, 41 7, 418.
may be as to excess, though permissive in part, 134.
AFFIRMATIVE
servitudes and easements, what are, 15, 18, 379.
AGENT,
cannot gain a prescription against his principal, 150, 151.
" AGRICULTURAL PURPOSES,"
way for, how used, 243.
AIR,
easement of (See Light, &c.), 574 -592.
ALLUVION,
rights of owners occasioned by, 393.
"ALL WAYS"
in grants, its effect to pass easements, 165.
ALTERATION
in condition and use, &c. (See Change.)
ANCIENT MILL,
how far rights of, depend on being, 317, 320, 383.
right of, limited to its actual enjoyment, 316, 332.
no right of action, though injured by reasonable use of other mills,
317, 330,
when to be alleged as such in actions for injuries to, 383.
688 INDEX.
APPARENT,
■what servitudes are, 1 7.
easements warranted in La. by implication, 60.
only such pass with principal estate, 65.
APPURTENANCES,
in grants create no new easement, 49, 50, 74.
they pass with grant of principal estate, 32, 33, 82.
when they pass with grants of parts of estates, 32, 85, 86.
effect of " all ways," &c., in creating appurtenances, 50.
what pass as such upon dividing heritages, 73, 74, 82, 83, CI 7.
what will be reserved as, in granting one of two estates, 82, 83.
may be of one easement to another, 31.
lands never can be to other lands, 39, 89.
APPURTENANT AND APPENDANT,
what easements are, 10, 29, 32, 49, 54, 81, 217.
ways must inhere in the land and be necessary to its enjoyment, 217.
apply to such as are acquired by implication, 29.
to be created by deed, must belong to the estate granted, 30, 39, 49,
217.
one easement may become such to another, 31.
easements not severable from the principal estate, 33.
ways may be granted and reserved in same deed, 28.
easement may be raised by grant out of grantee's estate, 28.
such easements pass with the principal estate, 32, 39, 78, 89, 591.
only existing easements pass as such, 10, 33, 39, 47, 49, 50, 615.
when " appurtenances" necessary to carry easements, 32, 50.
such easements pass with every part of the estate, 33, 85, 86, 591.
but do not pass to increase the burden, 33, 86.
will pass though not necessary to enjoyment, 72.
will not be reserved by implication unless necessary, 82, 83, 89.
one parcel of land never passes as such to another, 39, 89.
when an easement ceases to be, by change of estate, 88.
no easement appurtenant where one owns both estates, 49.
none will pass in such case except by express grant, 49.
ways of necessity, how far appurtenant, 220.
what are made such by reviving on grant of one of two estates, 614,
617.
an artificial watercourse may become so to a mill, 381.
aqueduct becomes so on dividing estates, 386, 616.
distinction between natural and artificial rights as to being, 387,
616.
after it is extinguished by unity, a way ceases to be, 616.
easements cease to be, by unity of estates, 615.
APPORTIONMENT,
of right of common, 599, 600.
INDEX. 689
APPROPRIATION,
of water power, 315-322, 410-412.
(^'ee Occupation.)
AQUA CEBIT SOLO,
when maxim applies, 392, 393.
AQUA CURRIT, &c.,
maxim how applied, 275.
AQUiE DUCEND.E,
and aqucB hauriendce, by the civil law, 503, 504.
AQUA HAUSTUS,
a Scotch servitude, 425.
AQUEDUCT,
a right of, an interest in land, 13.
right of an incorporeal hereditament, 376.
a rural service by the civil law, 15, 503.
may be gained by prescription, 378.
is a subject of custom, 13.
may be granted and reserved as realty, 11-13.
if once fixed by user as to place, not to be changed, 225.
when pipes of may be changed by parol agreement, 390, 391.
others may have easements in, 165, 167, 379.
when they pass with principal estate, 63, 70, 77, 386.
how far must be necessary, to be reserved by implication, 84, 85.
if severed by owner of two estates, does not pass, 387.
right of, by Scotch law, 505.
effect of, whether the supply is natural or artificial, 367- 378.
whether it passes upon dividing heritages, 84, 85.
ARRANGEMENT,
and use of estates which imply easements, 60, 61, 76.
must be made by owners, tenants cannot make them, 60, 61.
none such implied by reservation as to discontinuous easements, 59,
62, 63.
applied as to support of houses, granted or reserved, 63.
applied to aqueducts, by grants and reservations, 63, 84.
to have such an easement implied, it must be apparent, 65.
applied to separate parcels of swamp with drains, 73, 130.
applied to lots in cities, with streets and alleys, 74.
if parcels are sold in reference to, premises may not be changed, 76.
in grants, reference is had to, as they then exist, 76, 79, 620, 621.
made by owners of houses as to street, is not a dedication, 95.
ARTIFICIAL WATERCOURSE,
how distinguished from natural, 274, 367, 374, 375, 381.
two classes of, and how distinguished, 368.
how far they have the qualities of natural streams, 370, 371, 377,
383, 384.
44
690 INDEX.
ARTIFICIAL WATERCOURSE, Continued.
intermediate riparian owners may not divert, 370, 371',
owner of supply of, may not foul it, 370, 371, 373.
in what cases owner of source may stop supply, 3G9 - 371.
when a lower owner may claim a right to walers of, 387.
when owner of, may not increase its flow, 388.
when owner of, may not change to injury of one below, 389, 390.
how far owner may cease to use to the injury of one below, 389,
390.
owner of a ditch may change its level, &c., in his own land, 371.
no prescription to receive water from an artificial source, 372.
may be of drawing water through artificial channels, 374 - 379.
a right to draw by, in another's land, an incorporeal one, 376.
trespass does not lie for stopping one in another's land, 376.
easement may be gained in one, in one's own land, 379.
where one becomes a substitute for a natural stream, 384, 385.
when they have the rights of natural streams, 383 - 386.
rights in, may be limited by terms of the grant, 386.
when the right of aqueduct passes with an estate, 386.
if severed by the owner of the two estates, it does not pass, 387.
law of, in respect to mining in California, 380.
{See Watercourses.)
may be acquired by prescription in what cases, 293, 356, 372, 374,
379, 386.
right of mill-owner to clear those below him, 377, 381.
action lies for obstructing one to another's injury, 293.
ASSIGNEE,
of tenant of a nuisance bound by notice to former tenant, 682, 683.
ASSIGNMENT,
of an estate carries its easements, 32, 39, 78, 85, 86, 591.
AVULSION,
right of parties if it happen to land, 392, 393.
when owner must exercise his rights, 393.
B.
BANKS OF RIVERS,
public by civil law and the Partidas, 507.
how far public in Louisiana and Missouri, 506, 507.
law as to being boundaries of land, 479 -482. #
how far the public may use them, 482 -484.
BARGAIN AND SALE,
whether easement can be gained by, 28.
BARS AND GATES,
when land-owner may maintain across a way, 252, 253.
INDEX. 691
BATHING,
in ponds, or streams, or the sea, as an easement, 490.
if once gained may be extinguished by erecting buildings, 490.
BEAM,
of a house, right to support, a servitude, 15, 536.
BOGGY
places, rules as to water in, 435.
BONITARTAN OWNERSHIP,
what is, 100.
BONUM VACANS,
how far water is, 275, 280.
BOUNDING LAND,
by a way or contemplated way, effect of, 227- 231.
BRIDGE,
who to maintain across a watercourse, 255.
when grant of right of, is grant of a way, 240.
who liable for obstruction caused by, 289.
BROOK,
what is meant by, 267.
BUILDING,
on another's land, right of, not a good prescription, 121.
BUILDINGS. {See Support of Houses and Party Walls.)
BURIAL
rights in church-yards, easements of, 604.
C.
CANAL,
^ right to dig, how far it carries materials of, 39, 254.
CARE,
what is to be used in exercise easement of water, 280, 317, 458, 459.
in digging in soil, taking down houses, &c., what required, 518-524.
526-530.
in repairing party walls, what to be used, 541.
in abating a nuisance to one's property, 6 75.
CARRIAGE
way, what included in right of, 216, 243.
when implied in the nature of the grant, 231.
CASE,
action of, the form for injuries to easements, 661.
CAUSE,
remote and immediate of damage, rule as to, 364.
CHANCERY,
resort to for remedy.
{See Remedy, &c.)
692 INDEX.
CHANGE,
inestates, how it affects easements, 88, 148, 622-626, 628-631, 637.
in the use of water, its effect on easements, 144, 145, 147, 357 - 361.
in the use of a way, does not affect easement unless material, 144, 148.
it does if it is material, 144.
effect of, if from natural causes, 361, 392.
what is sufficient to destroy an easement, 145, 627, 629.
effect of, in ownership of dominant estates, 148.
what an owner may make in channel of a stream, 334, 360, 361, 388.
of fulling to a corn-mill, &c., does not affect easement, 628.
rights gained by, become like natural rights, 647, 648.
CHARACTER,
of a way, how far determined by user of, 109, 110.
CIVIL LAW,
as applied to servitudes, 9.
how it classified servitudes, 15.
rules of, not binding on common-law courts, 15.
referred to by American courts, 15.
what are servitudes by, as to water, 502 - 510.
what of support of houses, " oneris ferendi" 531 - 536, 656.
CLAIM,
of right essential in gaining easements, 124, 136.
not available unless accompanied by acts, 124, 134.
CLAM,
if enjoyment is, it gains no prescription, 122, 153 - 155.
CLANDESTINE USER,
gains no prescriptive right, 153 - 155.
CLEANSING
channels and tail-races to mills, rights of, 356, 377, 378. ^
CLOTHES LINE,
right of support of, an easement, 596.
COAL- SHOOT,
in use, right of passes as appurtenant, 79.
right to take, an easement, a vein of, not, 121.
CODE
Napoleon, what are servitudes bj', 16, 472, 506, 550-556, 5G9.
civil, of Louisiana, what are servitudes by, 17, 160, 506-507, 513.
COMMON TENANTS IN,
user by one not adverse to others, 135.
one cannot create easements in the common estate, 37, 38, 222.
one may acquire easement for his co-tenant, 38.
one cannot dedicate common property, 180.
(.See Pautition.)
COMMON
rigiit of an easement, 3, 598.
INDEX.
693
COIMMON, Conlinuerl.
how for applicable to this country, 598, 599.
how it may be apportioned or extinguished, GOO.
COMMON FISHERY,
what is, 498-500. (See Fisheky.)
CONCURRENCE,
of owners of both estates to create easements, 36.
CONDITION,
of estates to each other, reference to, as to easements, GO, 79, 81,
620, 621,
so in grants, referred to in fixing rights, 76, 83, 230-237, 244, 245.
how far change in, may destroy original rights, 75, 76.
how far change in, may destroy easements, 88, 148, 384, 385, 622 -
627.
easements may be granted upon, 35.
effect of a breach of, on land and easement, 36.
of streams a test of a reasonable use, 302, 335, 336.
of a stream when granted, shows what is conveyed, 384, 385.
of an estate when granted, defines how it is to be used, 620, 621.
CONDITIONAL
estate, when it will not sustain prescription, 159, 607 -610.
CONFUSION,
what it is by French law, 606.
CONSTITUTIONALITY
of mill laws, how far settled, 396 - 402.
CONSTRUCTION,
when grants of easements made by, 27.
when reservations made by, 27.
by what rules of, easements governed, 35.
CONTENTIOUS
user and enjoyment will not gain an easement, 155.
CONTERMINOUS
owners, their rights as to surface water, 268, 271, 272, 288.
their rights in dedicated streets, &c., 187, 190, 194.
CONTINUANCE
of a nuisance the ground of an action, 663, 666.
CONTINUOUS FLOWING,
when the test and limit of easement, 146.
CONTINUOUS SERVITUDES
and easements, what are, 17, 140, 506.
pass upon dividing heritages, 59. '
user necessary to create prescription, 140.
what is such a user and enjoyment, 140 - 142.
what is, as defined by Bracton, 141, n.
how far change in use breaks the continuity, 144, 148.
694 INDEX.
CONTINUOUS SERVITUDES, Continued.
effect of break in enjoyment, on prescription, 150.
how far, if occupants are successive in enjoyment, 148, 150, 151.
user by ancestor and heir is continuous, 148, 149.
interruption breaks the continuity, 141, 157.
mere suspension, not an interruption, 141, 147.
CONVEYANCE
of easements, how made, 28.
of estates carries easements belonging to same, 76 - 85, 612 - 621.
does not arrest an easement by prescription, 149.
CORPORATIONS,
local, to have charge of dedicated squares, &c., 210.
may prescribe for easements, 119, 171.
COVENANT,
easements created by, 34, 90-97.
may carry easement though not running with land, 97.
as to way, by referring to it in deed, 226, 229, 246.
CRICKET,
playing at, a lawful custom, 114.
CUL-DE-SAC,
use of, when opened to the public, 181.
how far a subject of dedication, 1 76.
made by one, not to be changed by another, 206.
CULINARY PURPOSES,
use of water for, 308.
when it becomes a precedent right of water, 285 - 289.
CURIA CLAUDENDA,
writ of, when applicable, 603.
CUSTOM,
who may claim easement by, 4, 7, 111, 120, 488.
must be the people of a locality, not a whole state, 7, 115, 485.
persons must be certain who claim by, 115, 116.
how distinguished from prescription, 111-114, 116, 120, 173,489,490.
what may be claimed by, 7, 74, 489.
must be certain in respect to what is claimed, 115, 116.
must be reasonable, to be valid, 112, 114, 120.
"what easements are good by, 116, 489.
does not extend to profits a prendre, 7, 112, 116, 488, 489.
does not justify extending windows over a street, 115.
wlien established, no one can release or extinguish, 114.
how the force of local law as to rights, 113.
one may claim by, or by prescription, 119, 490.
of bathing in streams, or the sea, a good one, 490.
rights by, in use of water, like easements, 488 -490.
right of a public landing-jDlace upon a stream, 116, 485, 486.
INDEX. 695
CUSTOM, Continued.
does not imply grants, or grantees, 111, 174.
docs not extend to deposit goods on banks of streams, 485, 486.
right to bathe in sea docs not give a right to pass over lands, 490.
custom to bathe lost by its becoming a public place, 490.
origin of claim need not be shown, 111, 113.
D.
DAMAGES,
law implies, for an injury to a right, 282, 295, 659.
when to be appreciable, to support an action, 330.
for flowing land, may be released by parol, 406.
parol release of, does not bind successors, 406.
remedy for, at common law, taken away by mill laws, 402.
whether action for injury must wait till damage arises, 560.
DAM. (See Mills, &c.)
Head servitude of, in Scotland, 505.
DAMNUM ABSQUE INJURIA,
when it applies, 298, 410, 445, 457, 515, 521, 527.
DEATH,
of servient owner, effect on prescription, 148, 151, 156, 159-163,
166.
whether it suspends it as to minor heirs, 149, 151, 156, 159- 163, 166.
does not suspend, if heir is of age, 159.
of owner of dominant estate, effect on prescription, 148.
DE DOMO REPARANDA,
writ of, when it lies, 567, 568.
DEED,
when necessary to create easement, 6, 23.
when the existence of one inferred from user, 24, 25, 102, 108.
no profert of, in pleading, required after time of prescription, 102.
DEDICATION,
doctrine of, a modern one, 1 78.
in what states adopted, 178, 179.
what are subjects of, 175, 186, 209, 484-486.
what are requisites to make it, 179 - 188.
can only be made by owner of the fee, 175, 180.
of wife's land by act of husband and wife, 180.
does not require a person to take, 1 74, 1 75.
is made to the public, 175, 176, 184, 188, 206.
how ffir it can be made to private use, 175, 192.
may be to a town or corporation before created, 174, 188.
may be for special uses, 184, 185, 189.
for religious purposes by civil law, 185.
how far good if a part of the public only use, 187.
696 INDEX.
DEDICATION, Continued.
for what purpose may be made, 176, 209.
to create, the owner need not part with the fee, 18C, 196, 209.
can only be by and with intent of owner, 180, 182 - 185, 205, 206.
may be by a single act, requires no deed, 180, 182, 187, 188, 190,
209.
often infeired from acquiescence of owner, 184.
of streets, squares, &c., by laying out towns, 195-197, 201, 202.
by plans of towns, &c., not complete till sales made, 176, 202.
how far it may make a highway of a cul-de-sac, 176, 206.
always originates from a voluntary donation, 180.
distinction between and license, 207.
not implied from open spaces near a house, 184, 207, 487.
negatived by erection of gates, &c., 180, 181, 183, 190.
private arrangement of estates on a street is not, 95.
by open use of a way, not unless accepted, 182, 183.
of public squares governed by common law, 205, 208.
none effectual till accepted, 180, 188-191, 202, 203, 208.
•what is evidence of a requisite acceptance, 189, 191, 194, 197 - 200,
202-204, 208.
what length of time requisite to make, 188-191, 199,
may be a partial or limited acceptance of, 189.
how distinguished from prescription, 175, 177, 187.
effect of, upon rights of owner of soil, 186, 209.
may be revoked before acceptance, 188.
when made and accepted, it is irrevocable, 188, 195, 196.
private rights in what is made to the public, 187.
what are such by acts of, if not in fact a dedication, 176, 190- 195.'
selling lots on private streets, effect of, 176.
when owner of public square may revoke or not, 200, 201, 208.
public take the land in its then condition, 210.
when of quays on rivers, what rights pass, 186, 207, 484, 485.
when of lands to state, county, &c., what rights in, 208.
who to have charge of public squares, &c., 210, 211.
may be lost by non-user, 212.
may be barred by adverse enjoyment, 211, 212.
of way, when accepted, makes it a highway, 194, 195.
if purposes of, are abandoned, it is lost, 200.
when use of ways as public dedicates them, 1 74.
distinction between and custom, 485.
may be of a public landing-place on streams, &c., 485, 486.
rights in private owners from acts like those of dedication, 191, 192-
194, 585.
DENIAL
of occu[)ant's right defeats prescription, 155.
INDEX. 697
DEPOSITING
bales and boxes, and swinging shutters for stores, 595, 596.
wood, &c., a subject of prescription, not of custom, 114.
can only be claimed in a que estate, 115.
DEROGATE,
one may not from his own grant, 45, 75, 78, 518, 579.
whether this applies to the matter of light, 584.
DESCENT
of estates, how far it afiects accruing casements, 149, 151, 159 - 163,
166.
DESTINATION DU PERE DE FAMILLE,
what is, 20, 21, 56, 80.
what services grow out of this, 21, 56, 80.
doctrine of, denied in England, 22, 62.
how far adopted in the United States, 57.
apply only to such ways as are necessary, 80.
its application to cases of severance of heritages, 21, 54, 80.
DETERMINABLE FEE,
if defeated, defeats prescription, 149, 607.
DETENTION
of water, when mill-owner may make, 336, 338.
DIGGING STONES, &c.,
right of, may be gained by a town, 601.
may be held in trust for others, 601.
and carrying away ore, 596.
DISABILITY
of owner what prevents gaining a prescription, 156, 159 - 16S.
has no effect if assumed after prescri2)tion begins, 156.
DISCHARGE OF WATER,
right of, by mills, 291, 334.
right of, of land-owners, 288 - 292.
in an artificial channel or pipe, 378.
in eaves' drip, 378, 468-471, 503.
from one mine into another, 449.
(See Eaves' Drip, Mixes.)
DISCONTINUANCE
of a private way, what amounts to, 635, 637.
DISCONTINUOUS
easements, what are, 17, 62, 506.
do not pass on dividing heritages, 59.
do not revive on conveying one of two estates, 80, 619.
DISTANCES
of building, digging, planting, &c., by civil and Greek, &c., law, 513.
DITCH,
right to stop, an easement gained by user, 134.
698 INDEX.
DITCH, Conlinued.
what is meant by, and what it includes, 267.
when it has the rights of a natural stream, 73.
use of for twenty years presumed adverse, 129.
DISPOSITIONS
of estates. {See Dividing Heritages.)
DISTURBANCE
of easements. (See Nuisance.)
DIVIDING HERITAGES,
effect in creating easements, 20 - 22, 41, 42, 54 - 73.
carries benefits and burdens with the several parts, 55, 75, 76, 84, 85.
rule as to easements passing with parts of estates, 59, 82-84, 86, 88.
how far limited to what is necessary, 57, 74, 78 - 83.
how far depends on being continuous and apparent, 55, 81.
effect of partition of estate as to passing easements, 41, 82, 84.
difference in effect upon part being granted or reserved, 82.
rule as to, in Louisiana, 88.
effect upon existing drain, support, &c., 41, 55.
'■'•destination du pere de famille," how applied, 20, 56, 80, 88.
rule applied to support of two houses by each other, 55, 78.
what pass on dividing estates may be shown by parol as to the state
of the premises, not what the parties intended, 72.
divisibility of easements, 31.
DIVERSION OF WATER,
what riparian owner may make, 281 - 283, 286 - 296, 306, 336, 346,
441.
. if gained by a new channel, it has the rights of a natural one, 647,
648.
owner must return it into the stream, 283.
when it is actionable to make it, 293, 304.
right of, for irrigation, incident to land, 296, 299, 303, 305.
to what extent, depends on size of stream, &c., 305.
must not extend to the entire stream, 305, 306.
can only be made for irrigation or domestic use, 306.
right of, may be gained by adverse user, 307, 308.
of one stream into another a wrongful act, 331.
may not be made by digging near a stream, 34 7, 449.
may not be made of a branch of a stream, 347.
if made, and estate then conveyed, it becomes established, 384, 385.
American law as to, more liberal than English, 450.
law of California as to, 322-324, 325.
may never be made by one mill-owner to the injury of another, 307,
324, 335, 336, 347.
same rule applies to owner of one side as botli of a stream, 297.
same rule applies to public and private streams, 346.
INDEX. 699
DOMINANT ESTATES,
what are, 3, 9.
need not be contiguous to the servient, 3.
union of with servient, extinguishes easements, 10.
death of owner of, effect of, on prescription, 148.
effect of division of the same on existing easements, 32, 33.
docking vessels, right of, a discontinuous easement, 62, 596.
DRAIN,
when easement of passes by implication, 41, 57, 58, 76- 78, 81 -83,
614.
when reserved upon dividing heritages, 59, 62, 68, 81.
when it revives upon conveying one of two estates, 614, 618, 619.
does not pass as appurtenant, if not apparent, 65, 81, 153.
granted for one purpose, may not be used for another, 53.
easement of, gives no right to make it a nuisance, 81.
user of, for twenty years, presumed to be adverse, 129.
when it has the incidents of a natural stream, 73.
if not lawfully laid, no damages for obstructing it, 417.
effect on the right of, if used to excess, 628.
owner of, is bound to cleanse and repair, 656.
right does not cease by its becoming public, 625.
effect of change of user, upon the right, 144.
DRAINAGE,
surface, 268. (See Surface Water.)
DRAWING WATER
for domestic use, easement of, 308.
"DRIFT" WAY,
what it is, and how used, 216, 243.
whether included in a " carriage " way, 243.
DROIT DE GOUTTIERE,
easement of, or eaves' drip, 469.
E.
EASEMENTS.
1. what they are and of what consist, 2-4, 9.
what are their qualities, 3.
how far identical with servitudes, 2-5, 9.
always incorporeal hereditaments, 3, 14, 240.
distinction between, and profits a prendre^ 3, 4.
distinction between, and licenses, 6.
always imply an interest in land, 6.
generally imply two estates dominant and servient, 3, 9, 265.
property in, in gross, how far a tenement, 4.
owner of, is not an occupant or have seisin of servient estate, 3, 14.
imply something enjoyed in another's estate, 6, 22, 265.
700 INDEX.
EASEMENTS, Continued.
right of in one, does not affect the other's seisin, 9.
owner may have an action for disturbance of, 9.
nothing properly is, which is inseparably an incident, 19.
one cannot have, in his own land, 49, 54.
right of, gives no right to the land itself, 240.
■what are considered natural, 276, 290, 377, 378, 427.
an incorporeal right to draw water through another's land, 376.
no right of, gained by enjoyment of what is not known, 530.
what are negative and how acquired, 15, 16, 18, 22, 470, 575, 594.
2. how acquired, if freehold, only by deed, 6, 23, 34.
by grant, or prescription the evidence of, 7, 23 - 25.
(See Prescription.)
grant of, how evidenced, 24, 34.
(See Grant.)
may be partly by grant and partly prescription, 25.
may be by reservation and how, 26, 85, 89.
when said to belong in a que estate, 14.
may be created by covenant, 34.
who may have by custom, 7.
when created, they pass with the dominant estate, 29, 32, 88.
must belong to an estate to pass with it, 30.
restriction upon one of two estates and yet not an easement, 30.
what are appendant and appurtenant, 29, 32.
one easement may be appendant to another, 31.
appurtenant pass in the grant of estate, though not named, 32, 382.
cannot be conveyed separate from the estate, 33.
how may be severed from the estate by the owner, 32.
appurtenant, pass with every part of an estate, 33, 85, 86, 88.
do not pass so as to increase the burden, 33.
when privileges used with, pass with an estate, 35, 165.
may be implied by grant of premises by a plan, 35.
may be granted upon condition, 35.
often pass by grant, where law would not imply a reservation, 27.
to pass as appurtenant must e.xist, or be expressly named, 49, 51.
may arise from use grantor made of his own land, 54.
in what cases implied on dividing heritages, 54, 55, 57, 58, 80, 84, 89.
when implied from condition of estates granted, 60,63, 65, 81,82, 617.
must be apparent to pass by implication, 65, 81, 613.
must be necessary to be reserved by implication, 66-71, 78, 80, 89,
613.
whether necessary, if capable of being supplied, 66-69.
when they will pass, though not necessary to the estate, 71,80, 83, 89.
if not known, they do not pass, 71, 81, 530.
rights of, mutually pass to each part, on partition of an estate, 82.
INDEX. 701
EASEMENTS, Continued.
where easements revive by dividing heritages, 83, 612 - G21.
how far and when created by estoppel, 89, 90.
equitable created by building houses on streets, squares, &c., 90-97.
how such may be created and how proved, 90-98.
one may be gained by prescription out of another that is granted,
136.
to gain by user, it must be continuous, 140 - 143.
cannot be gained by user, against owner's consent, 154, 155.
when gained by acts of dedication to private use, 190- 195.
created by partition of estates by plans, 226, 227.
public may gain by dedication, 192.
(See Dedication.)
can only be created by owner of inheritance, 37, 38.
3. In what easements may be had, 2, 3, 595- G04.
(See Ways.)
ways in use pass by deed of " all ways," 165.
may be gained by towns by prescription, 171.
a perpetual one belongs to lots sold on private streets, 1 76.
difference between those of streets and of squares, &c., 201.
nature of public easement in highways, 214, 215.
way will not pass as incident if not necessary, 80, 83, 89.
of maintaining gates across highways by town, 172.
(.S'ee Water. Watercourse.)
of watering cattle in a trench granted for irrigation, 136.
of flowing when measured by height of dam, 143.
to draw water, what is included in, 244.
what of water are both rural and urban, 265.
of upper discharging water on to a lower parcel, 19, 271, 288, 427-
432.
of water, what are natural easements, 276, 278-280, 290, 301, 427.
to receive, use, and discharge the flow, 276, 380, 381.
two parcels have to each other an easement and servitude, 292.
right to discharge upon a lower, a secondary easement, 291.
in favor of a mill to prevent irrigation by upper land-owner, 301.
of ponding water on another's land, 310.
such a freehold interest is to pass by deed, 310.
in water in any manner gained by user, 308.
(See User.)
one joint owner may gain prior right by, to use, 352.
one may gain exclusive right by, or against a co-owner, 352.
may be of any use of a stream except its natural flow, 348, 349.
right to divert, by grant or prescription, 348.
may be of any use which would be a nuisance, 353.
may be of fouling the water of a stream, 355.
702 INDEX.
EASEMENTS, Continued.
may be of deepening channel to increase the fall, 356,
right to clear tail-race of a mill, a natural one, 3ii6, 377, 378.
may be gained in artificial watercourses, 136, 379.
may be to water cattle in another's trench in one's own land, 136,
379.
not gained in water from artificial sources of supply, 371, 372.
right of discharge from mill, passes with it, 382.
what are embraced under stat. of Mass., 380 - 383.
of docking vessels, a discontinuous one, 62.
of drain, granted and reserved in dividing heritages, 59, 63, 66, 71,
81, 82.
of support of houses one on another, 15, 55, 78, 531.
of floating logs in streams where there are mills, 138.
of depastui-ing cattle gained by a town, 172.
created for one purpose not to be used for another, 53, 240, 352.
may be limited to certain times and occasions, 37.
when attached to one parcel not to be used with another, 87.
4. can only be abandoned by one having disposing power over the es-
tate, 414.
not lost by change in mode of user, 357 - 361.
not lost by non-user unless an adverse user, 649.
how far parol license for, is revocable, 310.
created by covenant, when not discharged by release of it, 97.
if granted for special purpose, lost by change of estate, 88, 623.
of discharge from mill on to lower land, not lost by unity of title to,
381.
may be lost by a material change in the estate, 144, 622 - 626.
may be lost by material change in use of, 147.
there may be a trust of, in one for another's use, 601.
owner of, bound to repair, 254.
how lost by release or extinguishment, 600- 611.
lost by unity of the two estates, 606, 607.
suspended by unity of possession of the two estates, 606.
if the title to one estate fails, it revives, 609.
^vhat unity of title sufficient to extinguish, 609, 610.
when they revive upon separation of the estate, 611, 620.
do not revive on separating estates if they have been changed, 611.
5. what revive by conveying one or both estates, 612-621. *
if natural, they revive, 612.
to revive must be necessary and apparent, 613.
what easements are of this kind, 614, 616.
cease to be appurtenant, upon unity of the estates, 616.
continuous may revive, discontinuous do not, 619.
whether revivor of depends upon expense of supplying, 619.
INDEX. 703
EASEMENTS, Continued.
whether revivor of depends upon condition of estate conveyed, 620,
621.
may be lost by change in condition of estate, 622-626.
when granted for special purpose, cease with that, 623, 624.
extinguished if destroyed by the act of God, 625.
of way, not affected by locating it as a public one, 625.
of drain, not lost by being made public, 625.
eflFect on party walls of destroying the buildings, 625.
effect on if house is restored, 626.
6. Miscellaneous Easements.
of burial rights, 604.
of common, 598-601.
of depositing bales of goods on ways, 595.
of digging ore, &c., 596, 601.
of dockage of vessels, 596.
of drying clothes, 596.
offences, 601.
of herbage and pasture, 598.
of holding town-meetings in parish meeting-house, 601.
of laying gas-pipe, &c., 601.
of pew rights in churches, 604.
of piling logs on another's land, 595.
of taking sea-weed, 597.
of throwing rubbish in streams, 598.
of turning a plough on another's land, 596.
of wharf and wharfage, 596.
EAVES' DRIP,
right of, an urban servitude, 15.
when it passes with a grant, 78.
may be gained as an easement, 378, 469.
known to the civil, common, and French laws, 469.
when a claim of land and when of an easement, 470.
negative easement of, not to have it on one's land, 470.
one cannot claim it upon his land from another's house, 471.
if gained in one form, cannot be exercised in another, 471, 473.
right not lost by destruction of the house, 471.
rule of French law as to its exercise, 472.
how it may be lost by change of estate, 473.
revives when a house is conveyed by the owner, 614.
EJECTMENT
lies by owner of soil of a way, 253, 663.
does not lie to try a right of easement, 663.
EMINENT DOMAIN,
whether the mill laws come under, 401.
704 INDEX.
EMINENT DOMAIN, Continued.
whether private ways come within, 401.
is a right inherent in every state sovereignty, 401.
state may not by, take the land of A, and give to B, 402.
if once exercised, when damages are given for a second, 402.
ENJOYMENT
for twenty years, when conclusive of a right, 167 - 1G9.
secret gives no prescriptive rights, 122, 153- 155.
(See User.)
EQUITY,
when it enforces parol easements, 90, 391.
when it enforces parol licenses, 23, 24, 310, 389 - 391.
enforces executed parol agreements as to using real estates, 90 - 98.
remedy by for injuries to easements, 668 - 674.
how far applicable to cases of public nuisance, 670.
EQUITABLE EASEMENTS,
what are, and how enforced, 90 - 98.
ESTOPPEL,
when applied in gaining easements, 89, 90, 391.
made by reference to a way in a deed, 226.
works upon one opening a way to the public, 182, 188.
to restore premises after others have acted upon a change in, 389.
to object to what the owner acquiesced in on his own estate, 391.
right of way lost by, by seeing it stopped, 622.
when owner of stream estopped to make a second change, 361, 389.
ESTOVERS,
right of, not lost by change of house, 628.
EVIDENCE, »
what is, of acquiescence to make prescription, 152 - 154.
EXCAVATION. (See Support of Land.)
EXECUTED LICENSE. (See License.)
fiXECUTOR,
by sale of testator's land, may create a way over his own, 221.
EXCEPTION,
easements created by, 26.
EXCESS
of right, user of, may gain prescription, 134.
no such user avails if less than twenty years, 144.
EXCHANGE
of ways, if it can be made by parol, 258 - 262.
of a(iuc,(hict l)y parol agreement, 390.
EXCLUSIVE USER,
what is meant by, 136.
may be such, though others have the same, 137, 138.
essential to gaining an easement, 124, 136.
INDEX. 705
EXTRA YIAM,
when one may go, if way out of repair, 254- 256, 262.
EXTINGUISHMENT
of easements, how made, 605-611, 619.
how may be by release by the dominant, 605, 627.
may be by unity of the two estates, 606, 607, 620.
when oceasioned by unity, called by the French " confusion," 606.
(»S'ee Unity of Estates.)
to be by act, it must be with that intent, 627.
of covenant in a lease by grant of reversion to lessee, 618.
by change in condition of the estate, 622-626, 628, 649.
excessive or abusive use of, does not work, 627.
of what is gained by deed, only by adverse user, 640 - 642.
F.
FAMILY
use, water may be diverted for, 283, 288.
FEME COVERT,
cannot impose servitudes, 36.
no prescription by user gained against, 156.
becoming such does not arrest prescription, 156.
may, with husband, dedicate lands, 180.
may .acquire easements through her husband, 38.
FENCES,
support of, an easement and servitude, 601,
may be gained or imposed by prescription, 601, 602.
when and how far it runs with estates, 603.
how a fence is to be placed by the builder, 603.
duty of, enforced by writ curia claudenda, 603.
one not bound to make against cattle not rightfully in the close, 604.
when one who sows grain must protect It by, 604.
FIELDS,
upper and lower, rule as to surface water on, 19, 268 - 272, 427-432.
(See Surface Water.)
FILUM AQU^,
the dividing line of ownership, 284, 297.
what it is, and how it changes with the stream, 393.
if stream divides, it has two, 268, 293.
FISHERY,
liberty of, a profit a prendre, 119.
right of, an easement, 491, 495, 500, 501.
open to all in the sea, 491.
may be regulated by the sovereignty, 491.
state regulation of, by special laws, 501.
right of, in the sea, gives no right to use adjacent land, 491.
45
706 INDEX.
FISHERY, Continued.
one may gain exclusive right in creeks and rivers, 493.
right of, belongs to ownership of soil, 492.
how far it can exist independent of this, 495, 499, 500.
right will pass with land, if not excepted, 496.
will pass with a grant of the water of a stream, 496.
whether grant of a piscary passes the soil, 497.
a mere piscary gives no right in the soil, 498.
so long as it is incident to ownership of land, it is no easement,
500.
no one has a right of, in another's land, 492.
an exclusive right of, may be gained, 492, 495, 496, 499.
right of, may be gained by grant or adverse user, 493, 494, 497.
cannot be claimed in the sea in a que estate, 495.
three kinds of, several, free, and common, 498-500.
may be a grant of, separately, or in common with others, 497, 498.
may be a right of, in land-owner in public rivers, 502.
trespass lies by owner of, for taking fish, 501.
a right to take fish a. profit a prendre, 496.
FISHERMEN
have easements of drying nets on one's land, 113.
FLOODS, 328. {See Freshets.)
FLOWING,
right of, gained by adverse user, 309.
when it passes with grant, &c., of mill, 44, 45, 51, 615.
how affected by state of dam, 56, 143, 145, 146, 332.
where prescription for, begins, 140.
effect on, of a temporary suspension, 147.
how far actionable if it stops drainage, 328.
how far actionable for deepening water in stream above, 328, 329,
330.
actionable if it sets water on to upper proprietor's land, 331.
adverse in Massachusetts, if it flows another's land, 132.
not adverse in Maine till injury done, 132.
occasioned by ice, how far mill-owner liable for, 333, 334.
how far perceptible damage by, necessary to action for, 329, 330.
effect upon the right of abandoning by owner or tenant, 414.
water for a fish-pond on one's own land, 331.
what rights of are gained by ad quod damnum, 421 —426.
FLOW
of water, right to enjoy, a natural easement, 276,
owner of stream has a right to receive, use, and discharge, 276, 288.
FLUME. {See Eaves' Dkip.)
FLUSH BOARDS,
aifccting the right to flow, 146.
INDEX. 707
FOOT WAY,
what is meant by, and liow used, 215, 21 C.
may be dedicated, and use of limited to, 185.
FORFEITURE
of easement, when for condition broken, 36.
FOAVLING,
right of, when & profit a prendre, 119.
FOULING
water, no one has a natural right of, 52, 291, 370.
proprietors of watercourses liable for, 287, 291, 374.
right only gained as an easement, 278, 279, 287, 355, 378.
acquired in one form, not to be exercised in another, 278, 279.
extent of, may not be increased by new works, 361.
FREE FISHERY,
what is (.S'ee Fishery), 498 - 500.
FRENCH LAW
of servitudes of water, 506.
as to effect of dividing heritages, 56, 57.
FREEHOLDS
may be several in parts of the same house, 564.
may be upper and lower in same soil, 558, 559.
in easements may be without words of limitation, 27.
in soil of highways over private property, 253.
FRESHETS,
how far referred to, in limiting right of flowing, 327, 328.
how far mill-owners liable for effect of, 362, 363.
distinction between periodical and extraordinary, 363.
how far dam-owner liable for, caused by ice, 364.
G.
GAMES
and sports, right to exercise, a lawful custom, 114- 116.
GATES
and bars, where owner of soil may maintain, 252, 253.
GAS PIPES,
right to lay in the street an easement, 601.
GRANT,
what are subjects of, 13, 14.
of rights to do acts on soil distinct from the soil itself, 14, 36.
of right to take minerals, an incorporeal one, 14.
of a servitude must be by deed, 18.
what would be sufficient in form to create, 28.
when of an easement and when of land itself. 36.
of principal estate carries appurtenant easements, 32.
of an easement must be by one having an entire interest, 37, 38.
when easements pass by, by implication, 38-42, 46.
708 INDEX.
GRANT, Continued.
of " a way " or " a road " passes only an easement, 39.
how such grant is limited, 46, 225.
of a right to dig a canal, when it carries the materials, 39, 254.
of a thing, carries all that is necessary to enjoy it, 39, 40, 52, 251 -
257.
easements often pass by, though not subjects of reservation, 27.
when it passes a way of necessity, 40.
of a mill or mill-site, what it carries, 42 -44, 314.
terms and effect of, limited and defined by state of premises, 48, 52,
78, 165.
if of one of several mills, what it carries, 53.
of a mill when it carries a reservoir, 53.
when of part of an estate carries an easement over the other, 54.
of easements when presumed in favor of corporations, 171.
of premises and "all ways," "lights," &c., effect on easements of,
10, 33, 50, 165.
lost preserved, after period of limitation, 101, 102.
of water-power may be restricted to certain uses, 349, 351.
of water-power may be in certain proportions, 352.
of a mill, whether it fixes the use or limits the power, 350.
of extending dam across a stream, when an entire power, 352.
one tenant in common cannot make, to a stranger, 37, 38.
one making, cannot derogate from the same, 77, 584.
may be proved by user but not controlled by, 35, 110, 125.
of a house, how far it carries right to light, 589, 591.
GROSS RIGHTS,
of ways, how far alienable, 10, 11, 36, 217.
o? profits a prendre, how far an estate, 11, 118.
to take water are alienable, 11, 12.
how to be annexed to or severed from land, 12, 33, 217.
easements never presumed to be, 36, 217.
are only easements for life of the owner, 36.
how one can prescribe for an easement in gross, 118.
such rights regarded as only personal, 36, 217.
GUTTER,
pass as appurtenant, 76, 77.
what is embraced in grant of, 267.
right of, revives to an estate when conveyed, 614.
H.
HANGING CLOTHES
to dry on another's premises, easements of, 596
HAWKING,
a I'ight of, a jiro/it a prendre, 119.
INDEX. 709
HAWAII,
law of servitudes of water in, 508 - 510.
HEAD AND FALL,
in a mill-privilege, what is, 313, n.
HEAD-RACE
of a mill-power, how measured and what it is, 313.
HEIGHT
and extent to wljich a dam may flow, how ascertained, 312, 406.
whether to refer to natural objects or instrumental measures, 312.
if these differ, which is to govern, 312.
how far right affected by state of the dam, 51.
how far a measure of the easement of flowing, 143, 145.
HEIRS
have not the rights of purchasers as to implied easements, 85.
whether prescription runs against, if minors, 156, 159- 163.
HERITAGE,
how division of, affects easements, 41, 54, 55-71, 84.
apparent and continuous easements pass thereby, 72, 83, 130.
such easements only pass as are necessary, 80, 82, 89.
when division revives easements, 83.
{See Dividing Heritages.)
HIGHWAYS,
distinction between and private in Massachusetts, 175.
what use of a way makes it one, 1 72 - 1 74.
may be created by dedication or prescription, 172-175, 177, 260.
way dedicated and used is not, unless accepted, 182, 183.
use of a private way by the public does not make it one, 184.
to become such, towns must accept them, 205.
in what easements in, in favor of the public, consist, 214.
owner of soil of, owns the-mines, &c., under, 214.
owner of, may have ejectment, &c., for the land covered by, 214, 215.
soil of, reverts to land-owner if discontinued, 214.
how far regarded an encumbrance, 70.
private way over, not gained by user, 138.
right to pile wood, &c., on, not gained by user, 131.
rights of adjacent owners in, alike by dedicaticti or laying out, 194.
easement in, compared with that in pubHc squares, &c., 201, 205.
if out of repair, travellers may go extra viam, 254.
none exists for the public on margins of lakes, &c., 208.
obstructing one, a ground of indictment, 193.
bridge in, by whom to be kept in repair, 255.
private way over, gained by a discontinuance of, 139, 226.
public easement in may be lost by non-user, 640.
no encroachment affects the easement short of twenty years, 640.
HOLDING
public meetings in churches, &c., easement of, 601.
710 INDEX.
HOLE,
right to dig one, not d, profit a prendre, 117.
" HORSE WAY,"
what is, and how it may be used, 216.
HORSE-RACING
on certain days a lawful custom, 115.
HOUSES,
what rights as to, are servitudes, 15, 531 - 535.
sale of, with " all lights " how far implies easements, 42.
right of support, implied in grant of, 55, 78.
what easements of light pass with, 77.
one cannot claim support, if defectively built, 521.
right of support does not depend on state of repair, 528, 529,
if ancient, it has same right of support as the soil, 529.
how far grant of, passes right of eaves' drip, 78.
what mutual easements arise as to, from mode of erection, 90-97.
there may be separate freeholds in parts of, 564.
whether owners of separate parts can rebuild if destroyed, 572.
{See SuppoKT of Houses.)
I.
ICE,
how far owner liable for flowing canal by, 333, 334, 364.
whether mill-owner may claim that on his pond, 347, note.
IMMITENDI TIGNA IN PARIETEM,
servitude of, 536.
IMPLIED GRANT
and reservation of easements by construction, 27, 29, 35, 38-42,46.
only carries existing ones, actually in use, 46.
only carries such as are apparent and continuous, 65, 81.
when Avill pass such as exist, though not necessary, 71.
will only pass such as are known, 71, 81.
of right to repair pipes, by a right to lay them, 40.
IMMEMORIAL
enjoyment not now requisite for prescription, 102.
INCIDENT, •
what pass as, Avith the grant of a thing, 42, 46, 49, 51.
what easements pass as, in grants, 79.
what easements are, as to other rights, 32.
INCORPOREAL
hereditaments, easements are, 3, 376.
INFANT
cannot impose servitudes on lands, 36.
heir, whether prescription can be gained against, 156, 159 - 163, 166.
how far bound by an abandonment of an easement, 414.
may ac(|uire easements by guardians, 38.
INDEX. 711
INHABITANTS
of localities may claim by custom, 111, 120.
no one can release easements gained by custom, 114.
cannot claim profits, &c., 112.
when incorporated may claim by prescription, 117, 119, 120.
must claim by a corporate act, 117.
cannot claim by acts of individuals, 117.
may claim easements in a que estate, 120.
may prescribe for town ways, 171, 172.
whether they can prescribe for a highway, 172, 173.
INFRINGEMENT
of an easement. (^'ee Nuisance.)
INHERITANCE,
owner of, must acquiesce to create an easement, 152.
how far he may claim what tenant has gained, 158.
INJUNCTION,
when a remedy in equity for disturbing an easement, 668 -670.
INJURY DONE,
time of prescription begins from, 128, 129, 132, 405.
if to a right, is enough, though no damage done, 129, 132, 133, 282,
295.
no action lies for, if the act itself is not unlawful, 384.
INSANE,
no one can prescribe against, 156, 160.
INTENTION,
a requisite of adverse user, 132.
INTEREST
in easements, whether perpetual, 27.
INTERRUPTION
by owner, when it defeats a continuous user, 141, 143.
what would amount to such, 141 - 144, 155, 156, 159.
when change of use works one to an easement, 147.
what works a loss of easement, 636 - 638, 642, 643, 646.
if by act of Providence and it ceases, easement revives, 638.
if by license, easement revives when license revoked, 652.
INVASION
of a right makes a user adverse, 133.
a ground of action though no damage done, 282, 295.
IRRIGATION,
what is meant by, and its measure, 294 - 296, 298.
an inherent right in riparian owner, 288, 289, 297, 301.
must be used in a reasonable manner, 298, 302, 305.
whether sluices may be cut for, 298, 300.
gives no right to stop the stream, 299, 300, 306.
what would be reasonable, depends on size of stream, 302, 304.
712 INDEX.
IRRIGATION, Continued.
one may gain right to more, by adverse user, 307.
rule as to, less stringent here than in England, 299.
in comparison with mills a question of degree only, 300.
user in a proper manner, not an easement, 301.
right does not make estates dominant and servient, 306.
may be lost by adverse enjoyment, 301.
ISLAND,
if found in river, whom it belongs to, 392.
ITER,
what kind of way by the civil law, 216.
J.
JOINT OWNERS
of watercourses, their rights in them, 283, 284.
of mill privileges, how to use them, 344.
duty of, as to repairs of dam and works, 344.
what each may do as to repairs, 345.
each may draw as long as any water, 345.
how far they can have partition of, 344, 345.
what passes by grant of one of several mills, 345, 346.
of land, cannot create easements against each other, 37, 38, 222.
of water-power user by one not adverse to the other, 135.
JURA NATURiE,
what rights are of the character of easements, 19, 266, 274, 276,
281, 290, 304, 326, 381-383, 432, 467, 512, 558,
K,
KNOWLEDGE,
must be of an easement to pass by implication, 71.
by the tenant to gain easement by user, 152, 154.
where requisite knowledge is implied, 152, 153.
L.
LAND
is never appurtenant to land, 39, 89.
LANDLORD,
how far he can claim easement through tenant, 158.
{See Reversioner.)
LEX REI SITiE
governs rights of dominant and servient estates, 402.
LAKES
have not the incidents of watercourses, 268.
INDEX. 713
LANDING PLACES
on rivers, &c., who may use and when, 483, 484.
may be dedicated to the public use, 484, 485.
how far a right to is a prescriptive one, 486, 487.
whether such right can be claimed for all purposes, 487.
LATERAL SUPPORT
of lands, 511-530.
(See Support.)
LENGTH OF TIME
requisite to gain an easement, 101 -103, 122, 123.
(See TiMK.)
LIMITATION,
the terms of, applied to prescriptions, 101, 107, 122, 123.
how far rules as to, apply to prescriptions, 159 - 163.
how far enjoyment during, becomes conclusive of right, 102- 109.
LICENSE,
distinguished from easement, 6, 23.
carries no interest in land, 6, 23.
is not assignable, 8.
who may exercise, 7.
given by parol, generally revocable, 6, 7, 23, 310, 380, 389, 649.
when required to be by deed, 23, 35.
when parol sufficient, 35.
when not revocable by rules of equity, 8, 23, 24, 379, 389.
when executed on licensee's land, not revocable, 24, 650 - 653.
inferred from opening a way to the public, 181 - 206.
extent of license inferred from apparent intent of, 181.
implied by opening places of business, &c., 207.
to lay pipes, imply license to repair them, 40.
to pond water, how far revocable, 310, 389.
parol to erect a dam, revocable, 389.
to lay aqueduct when not revocable, 390, 391.
in what states the common law as to revoking prevails, 24.
in what states the rules of equity prevail, 24.
not revocable if executed on a third person's land, 652, 653.
LIGHT AND AIR.
1. right of, an urban servitude, 16.
an easement or negative servitude by common law, 5 74-578.
how far it can be a subject of prescription, 576.
common law of, not in general use in U. States, 583-590, 614.
gained in England by mere occupancy, 576.
owner may erect barriers to prevent it, 576.
customary rights as to, in London, 5 7 7.
can only be gained against one having the inheritance, 579.
how far raised by implication in grants, or reservations, 42, 77, 88,
579-581, 614.
714 INDEX.
LIGHT AND AIR, Continued.
easement of, passes if necessary to the house, 581, 590,
extent of easement of, how measured, 582.
how far right of, affected by change of tenement and increase of
user, 629-631.
whether stopping a window destroys easement, 632.
right of, lost by ceasing to enjoy and use, 634.
what amounts to abandonment of, 635, 636.
states in which the common-law right prevails, 590, 591.
of abating obstructions to enjoyment of, 676.
2. air, right of pure, incident to ownership of a house, 592.
in what cases action lies for corrupting, 592.
one may reasonably use his premises, though affecting others' air,
593.
one may not render air impure by his business, 593.
may acquire right by user to create noisome smells, 593.
one may have a negative easement not to carry on trades, &c., 594,
595.
8. whether easement of wind to carry a mill can be had, 591, 592.
LOCALITY,
what easements arise from in several estates, 18, 291, 292, 429, 512.
LOSS OF EASEMENT,
how occasioned, 144, 147, 622-626.
LOST GRANT OR DEED,
presumed after time of limitation, 24, 25, 101, 105-107.
LOUISIANA,
law of, as to servitudes of water, 506.
M.
MANUFACTURES,
law as to depositing waste matter in a stream, 281.
MARRIED WOMEN. (See Femes Covert.)
MILLS,
moved by water not known to Roman law, 505.
1. owners of, have rights both of land and of water, 332, 333.
rules as to occupying and appropriating water for, 315, 316, 319.
what a devise or grant of carries as appurtenant, 42, 44, 45, 48, 70,
133.
owner of, has a right to the fall of water in his own land, 311, 313,
334.
owner of may flow back to upper line of his land, 312, 327, 333.
how far liable for flowing in freshets, 327, 328.
whether liable for consequences of ice, 333, 334.
may deepen and change channel in his own land, 334, 388.
may clear the tail-race of, and vent the water from, 31, 334, 377.
INDEX. 715
MILLS, Continued.
the right to receive and discharge water for, a natural one, 310.
the right to pond water for, on another's land an easement, 310.
owner of, may gain exclusive right to water by user, 301.
what privileges pass with, depends on state of premises, 48, 70, 133.
grant of one of several, what it carries, 53, 346.
when owner of may maintain reservoirs for, 341, 366.
when one owner may draw from the pond of another, 343 - 366.
of his right to water collected in springs, &c., 437, 439.
cannot claim percolating waters from swails, &c., 435 -438.
any right to water other than natural, to be claimed as an easement,
348.
owner of may not add a new stream to an existing one, 331.
owner of may not divert the water of a stream, 336, 346.
may not flow back water on another, though a public stream, 346.
when owner of may repair embankment on another's land, 357.
owner may stop the stream to repair his works, 336.
what are owner's rights and duties as to repairs of, 344, 345, 362.
may fill his pond to start his works, 336-339.
his interference with a lower mill must be reasonable, 338.
what is a reasonable use of the water is for the jury, 338, 339.
upper owner may not render lower mill useless, 339.
what is a reasonable use not fixed by the owner's convenience, 335.
owner of, may change the mode of using the water, 357 - 361, 628.
owner of, may adopt improved works in, 360, 628.
whether owner of, may cease to maintain a pond to another's injury,
389, 390.
what rules regulate mills of different capacities on same stream, 305,
337-341.
what rules as to operating mills in respect to each other, 318, 320,
321, 334, 340, 341.
lower not liable for flowing caused by the upper, 34 7.
lower not bound to contribute, if upper increases the stream, 346.
how far upper can divert the increase it creates, 34 7, 359.
prescription for, may be gained, though the dam be a highway, 346.
rights of owner of. In artificial channels like those in natural ones, 388.
owner of, may not change a channel to the injury of those below, 388.
owner of, may not corrupt or foul the stream, 594.
when owner of, in declaring for injury to, must allege it to be
ancient, 383.
2. privilege or site, — what it embraces, 311 - 314.
not a divisible thing, 314.
limited to owner's own land, 327, 333.
orant or reservation of, what it carries, 43 -45, 51, 384.
grant of, refers to the existing state of things, 52, 384, 385.
716 INDEX.
MILLS, Continued.
implies the ownership of land, to set a mill on, 311.
user by one of several owners not afl verse to others, 136.
rules as to occupying and appropriating, 315, 316, 319.
rights gained by priority of occupation, 315-320, 336- 340.
how far occupying by one excludes others, 317, 318, 320-326, 334,
339, 340.
occupying a part of, leaves balance open to others, 332.
■whether a grant of is a measure of power or defining a use, 349 -
352.
when riparian owner bound to inquire before occupying, 648.
3. Z)rtm, one may erect on his own land, 310.
one may not obstruct by, a navigable stream, 310.
when owned jointly though on separate lands, 344, 345.
rights and duties of joint owners to each other, 344, 345.
a right to maintain gained as an easement, 133.
changing place of, does not affect an easement, 145.
what is meant by " height of," 145.
how far height and condition of, a measure of a right to flow, 51,
145, 332.
how far the right affected by the dam being leaky, 147.
by what process the effect of two to be compared and measured,
312.
what owner of, may and must do in respect to repairs of, 362, 655.
license to build, a revocable one, 389.
4. Pond, right to flow gained by adverse user, 133.
what rights embraced in grant of, 52.
Race passes with grant of mill, 70.
"Head-race and tail-race" of, how measured, 313.
" Head and fall " of, what is meant by, 313, n.
flowing another's land by, always adverse in Massachusetts, 132, 133.
such flowing not adverse in Maine till damage done, 132.
yard right of, when it passes as an easement, 44, 227, 228, 595.
what amounts to an abandonment of, 414, 634, 636 -639, 646, 647.
whether tenant for life can abandon as to the reversioner, 414.
MILL LAWS,
systems and origin of, 395- 397.
do not extend to tide mills, 408.
necessarily local in their obligation, 418.
how far constitutional, 396-401, 426.
how far an exercise of eminent domain, 401.
common-law remedy superseded by, 402.
wliat are, in Massachusetts, Maine, and Wisconsin, 403 - 416, 421.
what are navigable .streams under these, 403.
give no right to erect dams on another's land, 403.
INDEX. 717
MILL LAWS, Continued.
provide a remedy to land-owner for damages, 403, 404.
different rules for this of Maine and Massachusetts, 405, 417, 418.
effect of a parol release of damages, 406.
height of dam and flowing how to be fixed, 406, 413.
apply only to such as have an entire privilege, 407.
authorize maintaining reservoirs, 407.
how reservoirs to be managed, 407.
one owner cannot flow out a prior occupant, 408, 417.
what constitutes an occupancy of a privilege, 409 - 412.
any part left b}- one unoccupied, may be appropriated by another,
408-411, 413.
extent of occupation, how limited and ascertained, 413.
whether these apply to cases of limits fixed by grant, 413.
they do not apply if owner has no mill, 413.
land-owner may protect his land from being flowed, 415.
flowing under these, is no disseisin, 416.
any parol agreement as to, does not run with the land, 406, 416.
mill-owner liable only while owner of it, 416.
mill-owner may not affect a navigable stream or highway, 416.
these laws extend to injury to underground drains, 416.
how far United States bound by, as proprietor of land, 418-420.
of Maine, gives a right to cut canals, 420.
of Rhode Island, prohibits detaining water over twelve hours, 421.
of Virginia, gives mill-owner title to the land taken, 421.
gives owner on one side to extend his dam across, 422.
provides a writ of ad quod damnum, 422 - 426.
what is settled under this writ, 422, 423.
of Missouri, Arkansas, and Kentucky, 423, 424.
of Mississippi, North Carolina, Indiana, 425.
of Illinois and Florida, 425.
in what states, ad quod damnum a prerequisite for a mill, 426.
of Alabama declared unconstitutional, 426.
MINERALS,
right to take, is an easement, 14, 596.
how it differs from a grant of a mine, 14.
MINE,
grant of, conveys part of the freehold, 14.
in Iowa may be made by parol, 596.
has prior right of water to work, in California, 322, 323.
may be a freehold of, distinct from that of the surfcice, 558.
when one working must have support for upper soil, 559 - 561.
when ownership gives right of access to dig for, 560.
owner is bound to guard his shaft against cattle, 564.
{See Support of Subjacent Soil.)
718 INDEX.
MINORITY
of heirs, when it suspends prescription, 151, 159 - 1G6, 168.
MINORS
cannot create easements, 36.
may acquire easements through guardians, 38.
female marrying does not postpone prescription, 156.
MURS MITOYENS,
party walls, laws of France as to, 551 -556.
N.
NATURAL EASEMENTS,
what are, 19, 276 - 280, 356, 427.
how far flow of a stream is, 20.
pass with estates as of right, 85.
may be lost by change and disuse of, by the owner, 75.
right to clear tail-race of a mill, 377, 378.
rio-ht of support of soil beneath and laterally, 512, 514,. 558 -560.
revive on conveying one of two estates, 612.
stream when rights of, attach to artificial ones, 385.
NAVIGABLE STREAMS,
what are, at common law, 475.
what are, by laws of states, 403, 476 - 480.
niay not be obstructed by dams, &c., 310, 480.
one injured, thereby may sue for the obstruction, 355.
a mill upon, may gain a right to flow lands by prescription, 346.
rights of public to use as highways, 474, 505.
{See Public Streams.)
NECESSITY,
way of, how to be used, 216.
how acquired, and the character of, 218 - 224.
passes with land when granted, 40.
NECESSARY,
how far it must be to work a reservation of an easement, 68, 69.
everything for enjoyment passes with a thing granted, 39.
whether it is such, a test of what is incident in a grant, 46, 78.
such easements revive on separating estates, 613.
NEGATIVE SERVICES
and easements, what are, 15, 16, 18, 470, 575, 591.
of light and prospect in New York, 22.
of light and prospect run with parts of estates, 591.
may be gained by adverse enjoyment, 133.
may be gained against offensive trades, 594.
NON- APPARENT
easements, what are, 1 7.
INDEX. 719
NON-OFFICIENDI
luminibus, &c., servitude of, where applied, 22.
NON-USER,
whether it extinguishes an easement, 144, 636, 639 - 648.
time of must be as long as requisite to gain by user, 639.
must be of a character to show intent to abandon, 640.
or it must have misled others to expend money, 640.
public highway may be lost by, 640.
no length of time bars easements acquired by deed, 640, 641, 643.
if user prevented by land-owner, easement lost by, 642.
how far evidence of abandonment of what is gained by user, 643,
645.
when adverse party is to inquire as to intention in non-user, 648.
NUISANCE. (See Abatement.)
what it is, and what remedy therefor, 663, 668, 675.
party continuing one liable, though erected by another, 663.
when one continues liable for, though not in possession of, the cause,
666.
when it may be abated by the party injured, 675 - 678.
OBJECTION
to user made by owner defeats prescription, 154.
O.
OBSTRUCTION
to flow of water, owner may not make, 288.
one repairing a way may not make, 655.
to flow of water, when actionable, 292, 293.
may not be made for purposes of irrigation, 299.
remedy for, if public bridge or railroad cause it, 288, 289.
of natural drainage, if by flowing, actionable, 328.
remedy for, a local action, 661, 662.
one continuing liable, though created by another, 663.
when owner of source may stop supply of water, 370, 371.
land-owner below source, may not stop flow of water, 369.
one may stop ditch dug in his own land, 83, 372.
what owner may do to remove one in another's land, 290.
in a private way, does not justify passing extra vimn, 255, 256.
OCCUPATION
of a mill-privilege, what is, 315-317, 326, 410-412.
of a part does not affect the rest, 316 - 322, 332, 388, 411.
what rights are gained by priority of, 315 - 320, 325, 333.
if gained of right, gives no right to divert the stream, 324.
when gained for one use, gives no precedence for another, 323.
to gain priority by, one must have a grant or prescription, 326.
rules as to, in California, 321 - 323.
720 INDEX.
OCCUPATION, Continued.
when act of, of one privilege, works abandonment of another, 647.
extent of, limited by capacity of the dam, 332.
OCCUPANTS,
successive, may gain prescription, if privies, 148- 151.
ONERIS FERENDI,
servitude of, by civil law, 531, 536, 656.
OPEN USER,
what sufficient to gain prescri2)tion by, 152 - 155, 530.
OPEN AREAS,
when an easement for several houses, neither may disturb, 85.
original owner cannot extinguish the right, 86.
using a way over, when adverse, 131, 137.
when having such, is a public license to use, 207.
when leaving such, is not a dedication, 184, 487.
OPENING
a way, when a license to a public use of, 181.
owners'
of upper and lower fields, rights as to water on, 19, 427 - 432, 439.
lower one may raise his land, 270, 277.
of entire estate can alone ci'eate easement, 37, 38.
of inheritance must acquiesce, to create prescription, 106.
objections made by, prevents prescription, 154.
of dedicated ways, &c., may not obstruct them, 209, 210.
of soil, what he may do as to way over it, 246.
of water, if joint, what they may do as to its use, 284.
P.
PARCEL,
when an easement may pass as, in a deed, 89.
when a thing may pass as, by being called appurtenant, 89.
PAROL,
release of damages good by the mill laws, 406.
license to pond water how far revocable, 310, 389.
license to erect a dam where revocable, 389.
license to lay aqueduct pipes when not revocable, 390, 391.
PARTITION
of estates carries all existing casements and privileges, 82.
when made by a plan carries all ways laid upon it, 226, 227.
how and when to be made of water power, 344, 345.
PARTY WALLS,
what are, 536. 537.
when an easement of arises between two houses, 536, 538, 542, 543,
546.
neither owner may impair the wall, 539, 546, 548, 549.
INDEX. 721
PARTY WALLS, Continued.
how far either is responsible for injury to, 540, 541, 548.
either party may increase the height of his part of, 538.
when one may underpin or repair it, 539, 541, 545.
when one may rebuild it, 539^ 540, 544, 547.
how far one bound to contribute towards repair, &c., 543 - 545.
how far joint use evidence of joint ownership, 540, 542, 549.
each party may own to centre of the wall, 545.
it may be one, though resting on arches, 545, 546.
tenants for years cannot create them, 543.
if for one size or species of house, not such for a different one, 547.
effect upon the right of, if building is burnt or ruinous, 542 - 544,
547, 025,626.
when one is liable to pay, if he uses another's wall as such, 544, 548.
civil law and that of France as to, 550, 556.
effect of abandoning use of such wall by one party, 555, 556.
law of Pennsylvania as to adjacent owners, 556, 557.
when right revives, if house is rebuilt, 625.
PASSAGE
way between two houses passes by grant to each, 72.
as used with city lot, when it passes, 74, 75, 79.
may pass, though not one of necessity, 74.
uncertain, or in different directions, not to be claimed, 121.
PASTURAGE,
easement of, may be gained by a town, 172.
general easement of, what it includes, 598.
not gained on beaches or open commons, 127, 128.
PERCOLATING WATERS,
how far owner liable for if escaping through a dam, 364.
(See Subterranean Waters.)
PERMISSIVE USE,
never a ground of prescription, 124 - 126.
may become adverse, 127.
user unexplained, not presumed to be, 129.
use of a way by part of the public, not a dedication, 184, 185.
PERSONAL
services, what are, 5, 504.
PERSONS
only can claim by prescription, 111.
may claim profits a prendre^ 112.
PEW RIGHTS,
in churches, when easements, 604.
owner of, may have trespass for injury to, 604.
PILING LOGS,
or lumber, easement of, belonging to a saw mill, 595.
46
722 INDEX.
PISCARY,
right of passes by grant of water, 267.
general rights of, 491 - 502.
(See Fishery.)
PLEADING,
how rights by prescription must be set out, 110, 121, 131, 6GG, 667.
when for injury to a mill, it must be laid as an ancient one, 383.
PONDS,
right to fish in, in Massachusetts, 491, note.
" POOR,"
" indigent," &c., cannot claim by custom, 116.
POSITIVE
easements, what are, 5.
POSSESSION
must be actual to gain a prescription, 123.
by successors, when it gains a prescription, 148-151.
PRAEDIAL SERVICES,
what are, 5, 15.
PREMISES,
state of, referred to define terms of grants, &c., 48, 52, 78, 165.
PRESCRIPTION,
evidence of a presumed grant, 24, 101, 102.
properly applies to incorporeal rights alone, 100, 110.
now used in respect to all rights gained by enjoyment, 25, 100.
distinction between ancient and modern, 24, 25, 100, 102, 105.
once implied enjoyment beyond memory of man, 25.
now applied to presumption from long enjoyment, 24.
assumes a grant made, now lost, 24, 101.
how distinguished from usucapion., 100.
how distinguished from custom. 111, 112, 120, 489, 490.
how distinguished from dedication, 175, 177, 187. ,
corporations may claim by, 171, 172.
can only be gained in subjects of grant, 110, 111, 164, 381, 382,
et seq.
must be reasonable to be good, 115, 120.
must be certain and definite to be good, 115.
may be of everything which is a subject of custom, 116, 117.
cannot be In what is common to all, 138.
m profits a p7-endre only gained in a que estate, 14, 117.
what are subjects, as profits a prendre, 117.
rights to stop watercourses gained by, 283, 354.
may be for exclusive control of a stream, 318, 354.
right to enclose part of highway gained by, 215.
cannot apply to rights in one's own land, 165, 379, et seq.
does not apply to what is unknown, 128, 468, 530.
INDEX. 723
PRESCRIPTION, Continued.
none as to water percolating in the earth, 128, 453, 454, 462-468.
may be gained as public way by towns, 172- 174, 177.
how far this makes a dedication, 1 74.
may be of a right to take coal, not of a vein, 121.
may be a private right though the public use it, 139.
implies one to make and another to accept a grant. 111, 112.
can only be claimed by and through these, 112.
can only be gained by actual user and enjoyment, 123.
user must be with intent to claim a right, 134.
not gained by successive acts of trespass, 143.
how far gained by successive occupants, 148-150.
"what user necessary to gain one, 122-13G,
must be adverse, 124 - 136.
(See User.)
enough, if it invades some right, 129, 354.
if unexplained, presumed to be adverse, 129.
cannot be gained by tenant against landlord, 150.
can only be gained against the owner of the inheritance, 579.
cannot be by agent against principal, 150.
cannot be gained against reversioners, 105, 152, 156 -158, 579.
cannot be gained against infants, femes covert, &c., 156, 166.
gained against all interested in estate or none, 152.
not gained against cotenants, if one an infant, &c., 166, 167.
may be gained, if servient estate be a conditional fee, 159.
to gain, owner must know and acquiesce in the user, 105, 152, 158.
can be gained only while owner can resist, 156.
cannot be gained if owner objects or resists, 154, 155.
begun against tenant will not run against landlord, 158.
to gain, user must be continuous, 140.
(Sec User.)
what interruption of user will affect, 141, 142.
of flowing not affected by change of place of dam, 145.
once begun, whether affected by death of owner, 159- 163, 166.
if owner have minor heirs, is it suspended, 159-163, 166.
nature and extent of, fixed by actual user, 109.
not gained by pasturing cattle on beaches, commons, &c., 127, 128.
difference between, and gaining lands by disseizin, 155.
what length of enjoyment necessary to gain, 101, 122, 123, 130.
when begun, what, if anything, will stop its running, 156 - 158.
time of, does not begin to run till Injury Is done, 128, 129, 355.
begins when a right is Invaded, 129.
when It begins for flowing lands, 140, 405.
how far law of limitations applies as to time, 101, 122,123, 159-163.
whether tenant for life can gain for his x-eversloner, 158.
724 INDEX.
PRESCRIPTION, Continued.
are strictly construed as to their extent, 110.
how far right of flowing fixed by height of dam, 51, 14.3, 145.
may be gained in an easement granted for a different use, 136, 379.
of way, not lost by another way, 121.
may exist in same land for different purposes, 138, 139.
two may have in same land, though one is paramount, 139.
easement may be claimed by, or by custom, 119, 139.
what may be prescribed for in a que estate, 118, 120.
when and how one can be claimed in gross, 118.
not a good one to maintain a house on another's land, 121.
one may be gained against a dedication, 211, 212.
how far it constitutes a title, 102.
how far regarded as a statute bar, 102 - 104.
right by may be released or extinguished, 114.
different rules as to, under mill laws of Massachusetts and Maine,
405.
different persons may have in respect to same estate, 138.
cannot be claimed in underground waters, 462-468.
Rule of, under code Napoleon, 468.
No one can prescribe for a public nuisance, 481.
one may gain, to fish in creeks, &c., and to exclude others, 493, 494.
cannot be claimed to fish in the sea by a que estate, 495.
extends to several or exclusive fishery in a river, 499, 500.
owner of such fishery may exclude the land-owner, 500.
cannot be claimed for easement of prospect, 578.
how far good for light and air, 574-592.
gained against existing right only by adverse user, 640, 641.
when and how far conclusive of a right, 25, 101, 103, 105 - 109.
destroyed by union of the two estates, 383, 606, 607.
PRESUMPTION,
how far conclusive from user, 104, 105, 167 - 169.
distinguished from an actual bar, 104, 105.
of a lost deed from long user and enjoyment, 24, 25, 101, 103-
105, 107.
of law distinguished from that of fact, 108, 109.
substituted for ancient prescription, 24, 101.
corresponds to possession and limitation, 25, 101.
used to express prescription, 25, 101.
how far open to be rebutted, 104, 105, 168.
•what l.ength of enjoyment raises it, 102.
none raised when there could be no grant, 164, 165.
user raises none, if for less than the requisite time, 123.
PRINCIPAL,
grant of, carries appurtenances, 32, 39, 46.
INDEX. 725
PRINCIPAL, Continued.
grant of, carries what is necessary to its enjoyment, 32, 39, 40, 52,
251 -257.
extent of grant restricted to what grantor has, 52.
what may pass as a parcel of, or appurtenant, 89.
PRIORITY
of right to enjoy water when all cannot, 285 - 287.
what constitutes, in occupation of water-power, 411, 412.
PRIVATE WAYS,
towns not liable for, though used by the public, 199, 205.
how far towns are liable if suffered to be travelled when unsafe,
199.
owner of may stop public use of, 183, 194.
what are meant by, in statute of Mass., 1 75.
how far such ways are constitutional, 401.
cannot be one upon a highway, 138, 217.
owner of, is to repair it, 254, 256.
what owner may do in fitting it for use, 248, 251, 254, 257.
when owner of land may establish gates upon, 252.
when a discontinued highway becomes one, 75, 226.
PRIVITY,
between successive owners to gain prescription, 148, 149, 151.
that between successive tenants insufficient, 150.
PRIVILEGES,
what pass as incident by grant or reservation, 46.
what pass as incident in grants of mills, 53, 70.
need not be named in a deed to pass existing easements, 32, 50.
what pass by construction, referred to the state of the premises, 48,
165.
PRIVY,
which of two houses to guard against as a nuisance, 572, 573.
PROFERT
of deed not required after time of prescription, 102.
PROFIT A PRENDRE,
in what they consist, 3, 489, 496.
how far same with or different from easements, 3, 4, 12, 118.
how far right to take water is, 12, 118, 489.
distinct from a right to the soil, 14.
only persons or bodies politic can claim, 117.
cannot be claimed by custom, 7, 112, 116.
can be gained only by grant or prescription, 7, 8.
can only be claimed by prescription in a que estate, 14, 112, 116,
117.
what may be claimed as by prescription, 117, 119.
when appurtenant to another estate, 8, 496.
726 INDEX.
PROFIT A PRENDRE, Continued.
how exercised and when assignable, 8, 118, 119.
a personal right to, an estate in land, 8, 11, 118, 496.
this doctrine applied to the right to take fish, 496.
PROPERTY,
how far there may be in a stream, 274.
PROSPECT,
a right of an urban servitude, 1 6.
may be gained by subjecting one parcel to another, 9G, 579, 591.
equity will protect one implied in a grant, 85, 94-97.
cannot be gained by prescription, 578.
may be gained by estoppel raised by a grant, 578.
PUBLIC STREAMS,
of rights of way in, by the public, 474.
■what are navigable at common law, 475.
how far all are public in which there is a tide, 475.
such as are navigable by art, not public, 476.
may be made public, though not navigable, 4 75, 476, 479.
when and of what capacity to be highways, 476-479.
no one may dam or obstruct a public river, 480.
any one wishing to use such stream may remove obstructions in,
481.
if one changes its channel in his land, he opens it to the public, 487.
when the property in a stream is in the state, 478.
■when rights of riparian owner are bounded by the bank, 479.
who owns the shore of publitj streams, 480-482.
■when the public have an easement in the banks of, 478, 486.
whether right to navigate a stream gives a use of the banks, 482-
485.
when one may appropriate eddies in public streams, 483.
a right to float logs in, gives no right to boom them, 484.
the common law gives no right to use the banks in navigating, 485,
486.
if a bridge across such stream flow one's land, he is entitled to dam-
ages, 481.
of the form of remedy for damage by a public bridge, 481.
riparian owner has no claim to damage if the public stop a navigable
stream, 482.
how far a company liable for effects of a dam across a public stream,
487,488.
{See Navigable Streams.)
PUBLIC, THE
alone competent to take dedication, 176, 184, 188, 206.
may lose a dedication by non-user, 212.
who has charge of what is dedicated to, 210, 211.
INDEX. 727
PUBLICI JURIS,
how far water is, 275, 277, 280, 304, 305.
ruMP,
use of not a continuous easement, 51.
PYER vs. CARTER,
doctrine of the case of, considered, 62- 71.
Q.
QUE ESTATE,
what is and when applied, 14, 115.
when the ground of a prescription, 115, 117, 120, 597.
what is incident or appendant only can be claimed by, 118.
whether right to take seaweed can be otherwise claimed, 597.
QUIRITARIAN
ownership, what is, 100.
R.
RACE-WAY,
right of passes with mills, 313.
head and tail, what are, 313.
owner of mill may clear on another's land, 31, 334, 377.
RAILROAD,
how far easement of, are like highways^ 214.
may owe negative services in their use, 18.
what owner of soil of, may do and require, 214, 215.
RAIN-WATER,
_ rights in, 427-432, 434.
(See Surface Water.)
REAL SERVICES,
what are, 5, 504.
REASONABLE,
what is, a test of lawful user, 278 - 282.
what is, depends upon circumstances, 281, 304, 319, 355.
rule applied to use of water by land-owner, 278-282, 283, 334.
rule of, applied to cases of irrigation, 302.
a test of valid prescriptions, 115, 120.
custom must be in order to be good, 114, 120.
RELEASE
of damages by flowing by parol, 416.
does not run with or bind the estate, 416.
REMAINDER-MAN
not affected by prescription against tenant, 152, 156, 157.
REMEDIES FOR INJURY TO EASEMENTS,
1. by action at law, must be case, 661.
it Ues, though no actual damage done, if it invades a right, 659.
special damage must be shown, to recover for injury to public ease-
ments, 660.
728 INDEX.
REMEDIES FOR INJURY TO EASEMENTS, Continued.
when action for, is local, 661-663.
any one in possession, may sustain it, 662.
when reversioner may sue, 663.
ejectment will not lie to try title to easement, 663.
action lies for continuing nuisance, 663-666.
against lessor and vendor with warranty, for continuing nuisance by
lessee and vendee, 665.
2. in equity, in what cases it interposes, 365, 668-674.
by injunction to prevent obstruction and disturbance of an ease-
ment, 668, 671.
by decreeing abatement of an existing nuisance, 671.
when chancery acts, though the title is in dispute, 673, 674.
when it will interpose, though no remedy at law, 673.
ordinarily will not act till title is settled, 668, 673.
3. provisions by statute for abating private nuisances, 674.
4. by act of abatement by the party injured, 365, 366, 675, 676.
{See Abatement.)
what is prerequisite to adopting it, 678, 682.
within what time to be exercised, 678.
5. by statute, for flowing lands, as under the mill laws.
{See Mill Laws.)
when mill-owners may elect, 366.
REPAIR,
who to make of things dedicated, 210, 211.
owner of private ways to make, 254 - 256, 654, 655.
of a drain when owner is to make, 81, 628, 656.
of bridges in highway, who to make, 255.
of mill-dams, &c., owned jointly who to make, 344, 345.
what mill-owner may do to repair his works, 345, 655.
mill-owner may stop the stream to make, 336.
what mill-owner bound to do, by way of, 362.
one bound to make, may do what is necessary for it, 254, 506, 655 - 657.
dominant estate, usually bound to make, 254, 654 - 658.
of party walls, 542 - 554.
of parts of a house by one of several owners, 567, 572.
of watercourses, 356, 376, 377, 381.
of wells, when not required, 655.
of embankment for mills on another's land, 357.
servient may be liable by covenant to repair, 254, 655.
duty as to servient in oneris ferendi, 656.
RESTRICTION
in use of one of two estates when not an easement, 30.
RESTORATION
of an estate by rebuilding or repair revives easements, 658.
INDEX. 729
RE\^RSIONER,
not affected by prescription against tenant, 105, 152, 156, 157, 579.
Low far he can claim easements gained by tenant, 158.
how far affected by tenants abandoning an easement, 414.
bound by prescription begun against him and continued against
tenant, 152, 157.
not bound as to party wall by act of tenant, 543.
REVIVOR,
of easements after unity of estates, 609.
when, by separation of the two estates, 611 -621.
would not operate if condition of estates had changed, 611.
in what cases when one or both estates are conveyed, 612-621.
may be by grant or reservation, 615.
civil law as to effect of separating estates, 616.
such as are discontinuous do not, 619.
whether affected by expense of substituting the easement, 619.
right of party wall upon rebuilding house, 625.
if interrupted by act of Providence and it ceases, 638.
none, if interruption be by act of party, 638.
by revocation of a license to obstruct, 650, 652.
when a principal thing is repaired or rebuilt, 658.
RESERVATION,
to create easement by when it must be express, 85, 89.
when implied, if clearly necessary, 66- 71, 78, 80, 89.
what words will create and what form of deed, 26, 27, 72.
when it has the effect of an exception, 26, 72.
can only be to the grantor, 26.
when so created, easements pass by grant, 27, 28.
how reserved to grantor out of grantee's own estate, 28.
of a " road " or " way," is an easement only, 39.
always one of a way, if of necessity, 40.
if of a drain the owner is to repair it, 81.
what is the duration of such easements, 27.
of easement, implies only what is necessary to enjoy it, 51.
of right to draw water gives no right to erect a mill, 51.
of water for a tan-yard gives no right to foul it, 52.
may be of a drain for one house in granting another, 62, 70, 614,
615.
easements may be revived by, as by grant, 615.
RESERVOIR,
right to maintain by mill-owners, 341, 407.
when a lower mill may draw from, 343, 366.
right of when it passes with a mill, 42, 53.
right of mill-owners to construct and maintain, 341 - 343.
lower mill may draw what it adds to one above, 366.
730 INDEX. -v
REVOCATION •
of dedication, when it may be made, 188, 200, 201.
EIGHT IN GROSS,
of a way, not alienable, 10, 11, 27.
is alienable if it implies occupancy of lands, 11.
of drawing water when alienable, 11.
to take gravel, &c., is an estate, 11.
how annexed to or severed from land, 12, 33.
easements never presumed to be, 217.
such rights only for the life of the owner, 36.
how one can prescribe for, 36.
RIPARIAN
proprietors, who are, 276, note.
their rights in running waters, 276, 277.
entitled to its flow in a natural state, 278 - 280, 290, 319.
may apply it to use on their own lands, 278.
to what uses they may apply it, 278, 281.
in what manner they may apply it, 281.
what is a reasonable use by, depends on circumstances, 282, 283,
319, 355.
have no right to use it to injury of others, 279, 319.
what rights they may gain as to, by adverse user, 283.
what rights of irrigation belong to, 296, 297, 300.
may not stop the water for irrigation, 299, 300.
successive have natural and equal rights to water, 319, 439.
which has precedence if not enough for all, 285 - 289.
whether one may take the entire stream, 289, 303.
action by, only lies for unreasonable use of a common right, 305.
may gain rights by user against mills, 307.
may drain their lands by ditches into the stream, 331, 332.
whether they may cut sluices for irrigation, 298, 300.
when they may not divert artificial watercourses, 370.
may occupy mill power, left unoccupied, 332.
how far may stop water to injury of those below, 336.
may grant the right of flow of water independent of the land, 385.
when one may not change stream in his own land, 387, 388.
may use his land though another control the water, 354.
may protect his land by dikes against flowing for mills, 415.
have the same rights of water in a new as old channel, 388.
rights of, attached to water flowing from springs, 439, 448.
RIVER,
wliat it embraces and how defined, 267, 268.
when divided by an island becomes two watercourses, 268.
may have character of, though at times dry, 267.
RIVERS, PUBLIC, (See Public Stueams.)
INDEX.
RUBBISH AND WASTE,
right of throwing in a stream, 281, 355, 356.
when owner may do it, 281, 356.
when mill-owner liiible for doing it, 355, 356.
« RUN "WITH,"
easements do, with the thing granted, 29.
release of damages by flowing, when it does not, 406, 416.
RURAL SERVITUDES,
what are, 15, 16, 265.
S.
SAND AND STONE,
right to take, as profits a prendre, 1 1 7.
SAWDUST,
whether owner liable for throwing into the stream, 355.
SALE OF LOTS
on private streets creates an easement in, 176.
SCOTCH LAW
of servitudes of water, &c., 17, 505.
of support and repair of houses, 569 - 572, 656, 657.
SEA-WEED,
a right to take, a profit a prendre, 4.
right to, cannot be claimed by custom, 4.
may be gained appurtenant to some estate, 597.
how the right to be exercised, 597.
SECONDARY
easements, what are, 31, 291.
SECRET
enjoyment gains no prescription, 122, 153 - 155.
SEIZIN
of owner not affected by another's easement, 9.
SERVIENT
estates, what are such, 3, 9.
may be, though not contiguous to dominant, 13.
union of, with dominant, extinguishes easements, 10.
SERVITUDES,
what are, and in what consist, 2-5, 265.
how far identical with easements, 3, 5.
are not such if granted to the person, 4.
what are personal, real, and praedial, 5.
what are negative ajid affirmative, 5, 15, 16, 18.
imply a burden on one estate in favor of another, 6, 265.
are not affected by conveyance of the estate, 7.
may be acquired by grant or prescription, 7, 18.
rural, urban, continuous, and apparent, 15, 17, 2G5.
what are natural ones, 18, 20, 291, 300.
731
732 INDEX.
SERVITUDES, Continued.
f
how far one field must receive water from another, 19, 427 -432,
434, 438.
one cannot have one in his own estate, 20.
negative of light and air applied in New York, 22.
who can or cannot impose, on an estate, 36.
when erected, they remain charged on the land, 29.
are not divisible by the civil law, 31.
of water, what are by civil, French, and Spanish laws, 502 -510.
if In gross, they cannot be granted over, 36.
belonging to individuals like those created by dedication, 190 - 194.
SEVERAL
fishery, what is, 498, 501.
SEWER,
what constitutes one in law, 267.
SIC UTERE TUO,
as a maxim applied, 280, 317, 458, 459, 462.
SLUICES,
whether owner may cut, in banks for irrigation, 298, 300.
SMELLS,
right to create, may be gained by user, 593.
SOAP,
thrown into stream, owner liable for, 355.
SOIL
of ways, what use owner of, may make, 247.
SPANISH
servitudes of water, 507.
SPORTS,
right to use, on another's land, an easement, 4, 114-116.
SPOUT." {See Eaves' Drip.)
SPRING OF WATER,
when a watercourse, 270.
underground sources may be cut off, 455. '
may not be done maliciously, 454, 457 - 461.
may be dedicated to the public, 186.
SQUARES,
public, easements in, different from highway, 201.
how far dedicated by building on, 208.
if dedicated, who responsible for care of, 210.
STILLICIDIUM. {See Eaves' Drip.)
a servitude, 265, 469, 4 70.
STOPPAGE
of the flow of a stream, when mill-owner may make it, 336.
as a remedy by one owner for wrongful use by another, 366.
whether one can cease to do it, to another's injury, 390.
INDEX. 733
STREAMS OF WATER,
parts of the freehold, 274, 276, 279, 280.
owner of, may change or deepen, when, 334, 360, 387.
how far restrained from restoring, when changed, 388.
owner of, may make all reasonable use of it, 280.
has a right to receive it from and discharge it through another's
land, 287-291.
effect upon rights to, of changes by natural causes, 292.
owners on opposite sides own to the thread, 284, 297, 479, 482.
such owners own the power of the stream jointly, 283, 284.
what is meant by the term " stream," 267, 268.
priority of natural rights to use of water of stream, 285- 287.
(For rules as to public and underground streams, see Public Streams
and SUIJTERRANEAN WaTEU.)
STREETS, &c.,
mutual easements of houses on, 90-97.
rights of owners on, of a private character, when dedicated, 187.
SUBJACENT
support of lands. (^See Support.)
SUBSTITUTION,
how far may be, of one way for another, 258 - 263.
SUBTERRANEAN
waters, law of, recent, 440.
form a part of the freehold, like rocks, &c., 445, 453.
owner may cut oti" supply from adjacent owner, 441, 443, 444, 450 -
457,465.
one may not do this maliciously, 442, 454, 457 - 462.
rule as to cutting off supply by the civil law, 443, 462,
rule does not extend to defined watercourses, 442, 448, 454, 456.
one may not poison percolating water, 442.
lower owner may not claim percolation from a higher one, 442.
when owner may not deprive mill-owner of, 443, 447, 449.
strangers may not deprive land-owner of, 457.
owner without remedy if deprived by public works, 445, 447.
one may not set back a stream to percolate into another's land, 445,
446.
one mine must suffer percolation from another, 449.
whether prescription applies to these, 128, 453, 454, 462 - 468.
rule as prescription in the French code, 468.
swamp owner may prevent percolation to a stream, 434 - 438.
American cases of percolating waters, 449 -460.
SUCCESSIVE
possession by privies gains prescription, 148-151.
SUCCESSOR
of a tenant bound by notice to such tenant, 683.
734 INDEX.
SUPPLY,
difference -whether watercourse derives from natural or artificial
sources, 367, 369, 372, 383-385.
SUPPORT.
1. of houses one by the other, right of, 15, 55, 531.
how far it passes as an easement or a servitude, 55, 78.
may be gained by gi-ant or reservation, 531, 532.
no right of, grows out of juxtaposition, 534.
right of, applies only to next adjoining houses, 532, 533.
one liable if he take down his house caralessly, 532 - 535.
how far rights as to, affected by house being inefficiently built, 521.
law of, grows out of different freehold in one house, 564.
2. of parts of houses by other parts, 564 - 572.
Scotch and French law as to repairs of, 569 - 572.
owner of one story not to impair support of another, 565.
whether one owner can hold another to contribute for, 566.
how far writ de domo reparanda applies, 56 7, 568.
whether an action lies if one neglects to repair, 567, 568.
whether owners can rebuild if destroyed, 572.
which of two owners to prevent the nuisance of a privy, 572, 573.
3. of bridges in highways, who liable for, 255.
4. of soil laterally a natural right, 512, 514.
does not extend to new burdens upon it, 512, 514, 516, 518, 524, 525.
right of, for new burdens, an easement, 512, 518, 519.
same rule as to latei-al and subjacent soil, 513, 520.
of care to be used in excavating near another's land, 514, 517, 519,
521-526.
one must not cause adjacent soil to fall, 514, 516.
what care to be used in respect to a house on adjacent land, 520,
522-524.
reference had to usage in the mode of excavating, 522, 527.
. what rule of damages for injuries to land or houses, 524.
what rule as to mode and extent of excavation, 526, 529.
liability for injury, how far affected by knowledge, 527, 528, 530.
liability for taking down one's own house carelessly, 529, 530.
an ancient house regarded like the natural soil, 529.
how far affected by state of repaii', 521, 528, 529.
rule of civil law as to excavating near adjacent land, 513.
rule of Solon on same subject, 513.
rule of French code on same subject, 513.
rules applicable to construction of public works, 516.
5. of subjacent soil in respect to mines, 558.
right arising from upper and lower freehold in same soil, 558.
lower freehold to support the upper, 558 - 560.
lower not bound to support buildings on upper, 559.
INDEX. 735
SUPPORT, Continued.
owner of lower may not injure ancient house on upper, 563.
mine owners to leave support of surface, 559, 561.
right of action arises when removing of support done, 561.
surface owner may release right of support, 561, 562.
liability of mine owner extends to public works, 563.
mine owner to make his shaft safe as to cattle, 564.
(See Mine.)
same rule applies between public works and private owners, 563.
SUSPENSION
of flowing, how it affects the easement of, 147.
of presci'iption as to minors, 151, 160, 166.
how far death of tenant is, to a prescription, 159 - 163.
of easements by unity of possession of estates, 606.
if by act of Providence, when it ceases easement revives, 638.
SWAjyiP,
owner of may drain or use the water, 270, 288, 434 -438.
law of Massachusetts as to draining, 428, note.
SURFACE WATER,
how far one parcel obliged to receive from another, 19, 268-272,
288,427-432, 439.
drainage distinct from watercourses, 268, 269, 439.
when a collection of, becomes a watercourse, 273.
land-owner may divert it from a mill below, 435.
soaking into the ground, is a part of the freehold, 435.
one owner may not change the discharge of, on to another, 427, 430,
431.
how far lower can prevent discharge of, on to it, 429, 431, 433, 439.
one house lot not obliged to receive from another, 433, cont. 434.
owner may drain it into natural channels, 428, 429.
owner may prevent by raising his land for cultivation, &c., 270, 272,
430, 431.
upper owner can only discharge the natural supply, 432, 443.
lower owner not bound to open ditches for, 433.
no claim to have it percolate into another's land, 430.
upper owner may use it on his own land, 434.
upper owner may get rid of it from his premises, 438.
law of Massachusetts as to draining swamps, 428, note.
rights of lower owner to claim water, limited to flowing streams, 436,
439.
T.
TACKING
successive possessions to create prescription, 148, 151.
TAIL-RACE,
in mill-power, what is, 313.
736 INDEX.
TAN BARK, &c.,
owner when liable for throwing into a stream, 355, 356.
TENANTS,
of estates claim prescription througli owners of the fee, 121.
user adverse to, does not affect reversioner, 105, 152, 156, 157, 579.
how far gain prescription for reversioner, 158.
of party wall, cannot bind reversioner as to same, 543.
TENANT,
in common, cannot create an easement, 37, 38, 222.
cannot dedicate common property, 180.
may acquire easement for cotenant, 38.
at will, must prescribe in landlord's name, 121, 151.
for life, an easement may be gained against, 158.
adverse user against does not affect reversioner, 156- 158.
cannot gain prescription against landlord, 150, 151.
one may in England gain prescription against another, 152.
when prescription may run against an estate in hands of, 152, 157.
successive, do not acquire prescription by occupancy, 151.
TERMES DE LA LEY,
a book of authority, 2.
THREAD
of a stream, 393. {See Filum Aqu^.)
THROWING
washings from mines into a stream, law of, 598.
TIDE MILLS
not governed by mill laws, 408.
TIMBERS
of a house, right to support, a servitude, 15.
{See Party Wall.)
TIME,
requisite to gain highways by prescription, 1 78.
requisite to gain prescriptions generally, 101 - 103, 122, 123.
requisite to create a dedication, 188, 199.
difference between what is a presumption and a bar, 103, 105.
when prescription begins to run, 128, 129, 560, 561.
when it begln-i as to continuous flowing, 140.
of day when ways may be used, may be prescribed, 241, 242.
TITLES
to easements by grants may be express or implied, 29.
TOUR DE L'ECHELLE,
what it is and its extent, 472, note.
TOWNS
may prescribe to take sea-weed, 118.
may prescribe for easements as persons, 119.
not liable for any but public highways, 205.
INDEX. 737
TOWNS, Continued.
cannot require private ways to be open or made, 26G.
may prescribe for maintaining a gate in a highway, 172.
TRADE, OFFENSIVE,
right to carry on, gained by prescription, 592, 593.
prescription may be gained against carrying on, 594.
TRAVELLER
may go outside of highway if out of repair, 254.
may not go outside of a private way, 254.
TREES,
in highway, to whom belong, 214, 215.
owner of land may cut ovei'hanging branches of, 677.
TRENCH,
if right of, granted for one use, not to be used for another, 53.
quantity of water in, may not be increased, 148.
who bound to cleanse and repair, 656.
right to cleanse and repair incident to right to dig, 656.
TRESPASS,
not an action for disturbing an easement, 376, 661.
will not lie for passing over an open way, 181, 192.
will lie for disturbance of pew right, 604.
TRUST
of an easement may be created, and how, 601.
TRUSTEE,
by sale of another's land, creates a way over his own, 221.
TURNING
teams on another's land in ploughing, easement of, d96.
TURVES,
right to cut and take, an easement, 117.
U.
UNINTERRUPTED USER
essential to prescription, 136, 140-143, 155, 156.
UNITED STATES,
how far, as proprietors of land, subordinate to state laws, 420.
UNITY,
of dominant and servient estates, effect of, 83, 143, 150, 158, 383,
600-611.
though only at intervals, interrupts prescription, 143.
what rights like easements not affected by, 381 - 383.
effect of, upon the right of common, 599, 600.
to work extinguishment of easement what necessary, 606, 607.
of possession, suspends easements, 606.
what constitutes, of title and possession, 607 -610.
if title of one of the estates fails, easement revives, 609.
effect on easement of separation of, 611.
47
738 INDEX.
UNITY, Continued.
eiFect of separation by sale of one or both, 612 - 621.
effect to extinguish covenants in a lease, 618.
UPPER FIELD,
its right to discharge water on to lower, 19, 268-272, 427-432.
how far this right may be controlled, 19, 429, 431, 433, 439.
URBAN SERVITUDES,
affirmative and negative, 15, 16, 265, 535.
USE OF A THING,
granted, carries every thing necessary to it, 39.
USER,
regarded as evidence of a grant, 24, 99, 107, 121, 124.
may raise presumption of lost deed, 25.
evidence of title to easements like possession to lands, 25.
is the basis of prescription, 99, 102, 104, 106, 107.
fixes the nature and extent of prescription, 109, 123.
what necessary to gain a prescription, 122-136.
1. must be adverse, 124- 136.
to be adverse it must invade some right, 130, 354.
must be under an assertion of a right, 126, 134, 153.
must not be by permission granted, 124 - 126.
if in excess of right, it is, as to such excess, 134.
it is, if claimant exercises it when he wishes, 130.
continued for twenty years presumes it to be, 129.
when from its nature and mode presumed to be, 135.
if of what is common to all, it is not, 135.
may become so though begun by parol agreement, 127.
it must be known to be so, 1 28.
whether it is or not, depends on intention, 132.
distinction between, as to easements and lands, 155.
one may have easements by, in another's trench in his own land, 379.
to pile wood in a highway is not, 131.
cases of enjoyment of water from artificial sources, not adverse, 372,
373.
of a thing of right in one's own land, not adverse, 164.
2. must be exclusive, 136-138, 318, 354.
may be as to each, though by several individuals, 138, 139.
may be as to individuals, though used by the public, 139.
3. must be continuous, and what is, 140, 142.
to be, it must not be interrupted, 136, 141, 143.
what would be an interruption, 141 - 144.
if by ancestor and heir, it is continuous, 148, 149.
if by successors privy in estate, it is, 149 - 151.
if it is in a particular way it establishes a right, 106, 107, 352.
how far it may be changed of water and be continuous, 144.
INDEX. 739
USER, Continued.
change in mode of, does not affect a right, 145, 357-361.
change in nature of, defeats an easement, 147, 148.
4. must be with knowledge and acquiescence of land-owner, 152 - 155,
158.
of no avail if owner makes objection, 154.
of no avail if owner cannot object, 156 - 166.
effect if infant minor becomes /eme covert, 156.
5. of ways, &c., may make them public by prescription, 172-174, 177.
of a private one, does not make it public, 184.
if permissive to portions of public, not a dedication, 184, 185.
how far evidence of accepting dedication, 189 - 191, 199, 200.
what may be made of squares, &c., by individuals, 201.
when adverse may defeat dedication, 211, 212.
when on one's own land grows into an easement, 49, 54, 55.
6. of water, the only thing of property in a stream, 280.
right of, incident to ownership of land, 276, 277, 280.
what owner may make on his own land, 278 - 283, 333 - 336.
it must be reasonable, and what is, 281 - 283, 334.
what is reasonable is for the jury, 281 - 283, 335.
what is, depends on condition of stream and business, 336.
what is, relates to convenience of all, 335.
not measured by convenience of one party, 335.
which of successive owners to have preference in, 285, 352.
7. when change in mode of, defeats an easement, 352.
limits and defines the rights of the parties, 352.
mode of, at time of grant, fixes the party's rights, 75.
of that which causes a nuisance may gain an easement, 353.
of a dam across a stream, without giving the whole water, 352, 353.
of a thing, how far conclusive evidence of grant, 167- 169.
what length of, necessary to a prescription, 122, 123.
adverse user necessary to defeat an easement, 640.
USUCAPION,
how distinguished from prescription, 100.
V.
VENTING
water, right of, incident to mills, 334.
VICE,
what is meant by, in civil law, 216.
W.
WALLS. (See Party Walls.)
WASTE MATTER,
whether it may be thrown into a stream, 355, 356.
nothing to poison or foul a stream, may be, 594.
740 INDEX.
WATER,
a right to take or use, an easement, 4, 265, 308.
right may be annexed to or severed from the freehold, 11, 12.
when regarded property, as part of the soil, 12, 13, 445, 453.
how far a right to take, & profit a prendre, 12, 118, 489.
right of, in cistern or well, compared with a stream, 13.
rights of adjacent field, as to surface, 19, 268 - 272, 427-432.
{See Surface Water.)
right to use gives no right to foul, h2.
right to take and use a subject of grant and prescription, 118.
what are servitudes of, by civil and French laws, 602 - 510.
■ the extent of easements in, how measured, 145.
effect of changing the mode or extent of applying it, 147.
easement of, consists only of its use, 266, 280.
when its use is an easement by connexion with the soil, 266.
what rights land-owner has in, on his own soil, 265, 266, 278 - 282,
298.
owner of, may not foul it or poison it, 278, 594.
how far he may diminish its quantity, 279, 280.
easement in, in any form gained by user, 308.
in wells and swampy places belong to the land itself, 270.
receiving and discharging of, for a mill, a natural right, 310.
of property in, while on one's own land, 275, 280.
mill-owner may not divert it, 336.
when mill-owner may detain its flow, 336 - 338.
quantity to be used not regulated by owner's wants, 335.
owner may protect his land from flow of, 270 - 272.
(^ee Mills.)
WATERCOURSE,
what it is, and how defined, 266 - 268, 273, 439.
grant of, does not carry the soil, 26 7.
stream of, may be large or small, 268, 269.
is a part of the freehold, 274.
may be, though sometimes without water, 268, 269.
whether it is one or not a question for a jury, 439.
river divided by an island has two, 268.
how far applied to surface-water channels, 269, 434, 539.
when a collection of surface water may become, 273, 274, 434.
what is an ancient one, 273, 274.
how far there is a property in, 270, 274, 276, 277, 376.
owner of, may not foul the water, 278, 287, 594.
what upper and lower owners of, may do with it, 280 - 283, 288,
303, 439.
joint ownership of, by riparian proprietors, 284.
ownership of, divided by the thread of the stream, 284, 297.
INDEX. 741
WATERCOURSE, Continued.
what uses of, take precedence among owners of, 285, 286, 288, 289,
303.
natural wants of owners, to be supplied before artificial, 289.
when and to what extent owner of, may obstruct or divert it, 293,
304.
what is a reasonable diversion, depends on its size, &c., 304.
owner of, may change it within his own land, 290, 334, 360, 379,
388.
whether he may restore it back to another's injury, 360, 361, 390.
owner of, may restrict himself from changing it, 387.
effect of change in by freshets, &c., on owner's rights, 392, 393.
when owner may restore it, if changed, 392.
when one may deepen channel of, below a mill, 356.
what enjoyment of such change gives an easement, 356.
of the easement of throwing washings from mines, &c., into, 598.
{See Artificial Watercourse.)
mill-owner may cleanse it, 356, 357.
WATERING CATTLE
gained as a right by prescription, 136.
whether it takes precedence of other uses of water, 282, 283, 288,
289, 298.
right of may be gained in what was granted for irrigation, 136, 379.
WATER POWER,
what is meant by, and embraced in, 280, 311, 314.
what is an occupation of, 315, 316, 326.
WAY,
what is meant by, and what may be claimed as, 215, 216.
ex vi termini, implies a particular line, 132, 215.
different kinds and names of, known to the law, 215.
their classification and division by the civil law, 216.
how different kinds are described and used, 216.
what a " carriage " and a " drift " way, 216, 243.
" across " a field, what may be done under right of, 241.
for " agricultural purposes," what may be done under it, 243.
in gross, an inalienable personal right, 10, 217.
" for all purposes," how far a personal right, 10.
when appurtenant or appendant, 217.
always presumed to be appurtenant, 217.
appurtenant cannot be turned into one in gross, 10, 33, 217.
when appurtenant how far, to all parts of the estate, 239.
landlord has a right of, to view, collect rent, &c., 243.
appurtenant to dower determines with it, 6.
must be one a quo and ad quern, 132.
when an existing one is a breach of covenant in a deed, 214.
742 INDEX.
WAY, Continued.
existence of, no bar to owner's real action, 313.
like other easements gained by grant or prescription, 7, 23 — 25.
may be created by dedication, for the public, 174 - 176, 192.
the public may gain by prescription, 172, 177.
private, cannot be prescribed for over a highway, 138, 217.
what user of, establishes it, a public one, 172 - 174.
user of a private one, does not make it public, 182- 184.
distinction between " private " and " public " in the statute of Mas-
sachusetts, 175.
towns may gain private easement in, by prescription, 171.
if private are opened in towns, not subjects of indictment, 171, 205.
grants of estates " with all ways," pass only such as are in use, 10,
49, 50, 225.
right of, passes as incident to grant of right of pasture, 31.
right of, incident to right of fishing or hunting, 31.
what is implied by bounding on a non-existing street, 230, 246.
extent and direction of, determined by condition of estate, 230 - 237,
240, 244, 245, 249, 250.
Tiow far controlled by marks upon plans, 226, 232, 233, 248.
when expressly granted, neither party may change it, 235, 236, 238,
239, 241, 250, 251.
if granted for one parcel, not to be used for another, 87, 109, 228,
229, 238, 239, 240-243, 624, 625.
granted for one purpose, not to be used for another, 110, 240, 242,
243, 249, 250.
rules for construing grants of, Atkyns v. Boardman, 244, 245.
nature and use to be made of, may be defined by deed, 224.
referring to one not existing, is not a grant, 225, 228.
when fixed by grant, cannot be controlled by parol, 225.
if not fixed by grant, may be by user, 225.
when fixed by user may not be changed, 225.
when referred to as a boundary, estops the grantor to deny it, 226,
228, 229.
when bounding by, gives the purchaser a right to use, 75, 228, 229.
rl^^hts of, pass by plans on partition of estates, 226.
■\vlien implied upon dividing heritages, 58.
when it passes by having been used with an estate, 58, 59, 74.
may pass from having been used, though not necessary, 74.
what are ways of necessity, 40.
always created by grant or reservation, 40, 41, 218, 220, 222.
how created, 218.
must be of strict necessity, convenience not enough, 219 - 222.
cannot be raised over a stranger's land, 219, 220.
executor, &c., may create one over his own land, 221.
INDEX. 743
"WAY, Continued.
one of two tenants in common cannot create it, 222.
rules as to, apply to any acquisition of lands, 221.
right passes as appurtenant to an estate, 218, 220.
right ceases when the necessity ceases, 220, 222.
when " carriage" way may pass as such, 231.
who may designate such way, 223.
who may designate ways created by grant, 223, 224.
if there are two in use, grantee may elect the most convenient, 234,
235.
how ways are to be used, 240 - 251.
what is a reasonable use of, for the jury, 241.
the times at which it may be used, 241, 242.
grant of, gives no right to pile lumber on, 243.
one " convenient to get hay," limits to one line, 241.
same rights of use as a highway may attach to private ways, 228.
ways of necessity to be used as other ways, 256.
to carry coals, implies a right to lay a track, 257.
whether one may go extra viam, if way out of repair, 254 - 256, 262,
654.
for carriages not necessarily a " drift way," 216.
what user is adverse or not to owner of goil, 131, 132, 137.
user of, over wild open land is not, 131.
may become so if with intent to gain a right, 132.
when over open commons gives an easement, 131, 137.
cannot be an adverse user over a highway, 138, 217.
owner of the way to repair it, 254, 256, 654 - 656.
who to repair bridge over a watercourse, 255.
what owner of, may do in fitting it for use, &c., 248, 251, 254, 257,
654, 655.
may not obstruct a stream in repairing it, 655.
what rights owner of way has in the soil, 247, 257.
may have an action for an injury to his right, 213.
what owner of soil may do as to ways, 252, 253.
when he may obstruct the space mentioned as, 246, 247.
may stop private way from public use, 183, 194.
may establish gates and bars upon, 252.
may have an action to recover for injury to the land, &c., 253, 254.
how it may be lost or parted with, 88, 239, 250, 600 - 611, 624, 634.
lost by partial change in the principal estate, 88, 242, 250, 623, 635.
one to a cottage ceases with the cottage, 239.
not lost if the grant is of the cottage " and ways," 239.
if gained by a highway not lost by its discontinuance, 75, 226.
may be granted if it implies occupancy of land, 11.
one dedicated may be lost by a substituted dedication, 260.
744 INDEX.
WAY, Continued.
whether one can be exchanged for another by parol, 258 - 262, G33,
637.
when a parol exchange is a mere license, 260.
when right of, once extinguished, revives, 614,
private, not lost by dedicating or locating it to the public, 623, 625,
637.
WELL,
right to use not a continuous easement, 60.
right of, attached to one parcel may not be used for another, 87.
underground supply of, maybe cut off, 441, 443, 444, 450-457,
462.
when water of a stream not to be diverted by, 347,
has no incidents of enjoyment like watercourses, 270.
who to repair, and when owner bound to maintain, 655.
WHARF,
right to maintain and use, 596.
WHEELS
in mills, effect of change in, on rights, 358 - 360.
WILD LAND,
passing over, when it gains an easement in, 131, 132.
WINDMILLS,
whether easements of wind belong to, 592.
WIVES
cannot impose servitudes on lands, 36.
(.See Femes Covert.)
Cambridge: Printed by Welch, Bigelow, & Co.
\
LAW LIBRARY , "^
REGIONAL LlBBAKnAULl I J
AA 000 857 043 4
JiiiMi ii