34 Pearsall v. Post, 20 Wend. (N. Y.) Ill; Ackerman v. Shelp, 8 N. J. Law, 125.

35 Verona Borough v. Allegheny Val. R. R., 152 Pa. St. 368, 25 Atl. 518; Kelenk v. Town of Walnut Lake, 51 Minn. 381, 53 N. W. 703.

36 Larsen v. Peterson (N. J. Ch.) 30 Atl. 1094; Fetters v. Humphreys, 18 N. J. Eq. 260.

37 See post, p. 365.

38 See post, p. 359.

39 Dennis v. Wilson, 107 Mass. 591; Spensley v. Valentine, 34 Wis. 154; Mcmahon v. Williams, 79 Ala. 288.

40 See Abbot v. Weekly, 1 Lev. 176; Fitch v. Rawling, 2 H. Bl. 393; Mounsey v. Ismay, 1 Hurl. & C. 729, 3 Hurl. & C. 486; Hall v. Nottingham, 1 Exeh. Dlv. 1; Tyson v. Smith, 9 Adol. & E. 406; Nudd v. Hobbs, 17 N. H. 524; easements in gross in respect to the flowage of water.41 Easements are also divided, with respect to the obligation imposed on the owner of the servient estate, into negative easements and affirmative easements. Under the former the owner of the servient estate is prohibited from doing some acts of ownership on his own property, as an easement that land shall not be built upon,42 while in the case of an affirmative easement the owner of the servient estate is merely required to permit something to be done on his land, such as piling materials on it43 Easements are also divided into natural and conventional. The former exist as the outgrowth of natural rights, and are necessary, as a matter of course, for the enjoyment of the dominant estate. Instances of natural easements are rights to support of land and to the flowage of water.44 Conventional easements, on the other hand, are those which are created by the agreements of the parties, and add rights to the dominant estate, which, though not strictly necessary, add to its enjoyment, such as rights of way or to light and air.45

Same - incidents

223. The principal rights and incidents growing out of easements are the following:

(a) The dominant owner must use his easement, and the servient owner his estate, in a reasonable manner.

(b) The dominant owner must repair the easement.

(c) The servient owner must not obstruct the easement.

Knowles v. Dow, 22 N. H. 387. Such rights do not exist in some states. Acker-man v. Shelp, 8 N. J. Law, 125. An easement cannot be granted in gross so that it will be assignable. Ackroyd v. Smith, 10 C. B. 164; Boatman v. Lasley, 23 Ohio St. 614. See Garrison v. Rudd, 19 111. 558, and, contra, Goodrich v. Burbank, 12 Allen (Mass.) 459; Amidon v. Harris, 113 Mass. 59. Nor to give a right of action against a third person. Hill v. Tupper, 2 Hurl. & C. 121.

41 De Witt v. Harvey, 4 Gray (Mass.) 486; Bissell v. Grant, 35 Conn. 28S; Poull v. Mockley, 33 Wis. 4S2.

42 Hills v. Miller, 3 Paige (N. Y.) 254.

43 Voorhees v. Burchard, 55 N. Y. 98; Big Mountain Imp. Co.'s Appeal, 54 Pa. St. 361. And see Melvin v. Whiting, 13 Pick. (Mass.) 184.

44 Laumier v. Francis, 23 Mo. 181.

45 Stokoe v. Singers, 8 El. & Bl. 31.

Use of the Easement.

The owner of the dominant estate must make his use of the easement reasonable, so as to interfere as little as possible with the servient owner's enjoyment of his land.46 On the other hand, the latter must not use his estate in such a way as to obstruct the easement or unreasonably interfere with its enjoyment.47 The grant of an easement includes a grant of all rights necessary for its use. But the use of an easement must be confined to the object for which it is granted.48

Repairs of the Easement.

In the absence of a contract providing otherwise, the owner of the dominant estate-that is, the one who has the benefit of the easement-must keep it in repair and condition for use.49 The easement carries with it the right to do anything necessary to make repairs.50

Obstruction of tlce Easement.

The owner of the dominant estate may have an action for the obstruction of his easement by the servient owner, though no actual damage has been caused.51 The owner of the dominant estate may

48 Kaler v. Beaman, 49 Me. 207.

47 Wells v. Tolman, 88 Hun, 438, 34 N. Y. Supp. 840; Bakeman v. Talbot,

.31 N. Y. 366; Gerrish v. Shattuck, 132 Mass. 235; Welch v. Wilcox, 101 Mass.

162; Williams v. Clark, 140 Mass. 238, 5 N. E. 802; Conuery v. Brooke, 73

Pa. St. 80. Cf. Baker v. Frick, 45 Md. 337; Attorney General v. Williams,

140 Mass. 329, 2 N. E. 80, and 3 N. E. 214. Plowing part of land over which there is a right of way is not necessarily an interference with the easement.

.Moftitt v. Lytle, 165 Pa. St. 173, 30 Atl. 922. A contract to permit the use of a wall for a sign space is an easement, and implies the right of such access ito the wall as is necessary for the purpose Indicated. Gunning v. Cusack, 50

111. A pp. 290.

48 Shaughnessey v. Leary, 162 Mass. 108, 38 N. E. 197; Waters v. Lumber Co., 115 N. C. 648, 20 S. E. 718. And see post, p. 360. Nor can the use of the dominant tenement be changed so as to increase the burden. Wood v. Saunders, 10 Ch. App. 582.

49 Washb. Easem. & Serv. (4th Ed.) 730; Doane v. Badger, 12 Mass. 65. But cf. Pomfret v. Rlcroft, 1 Saund. 321; Morrison v. Marquardt, 24 Iowa, 35.

50 Thayer v. Payne, 2 Cush. (Mass.) 327; Prescott v. White, 21 Pick. (Mass.) 341; Williams v. Safford, 7 Barb. (N. Y.) 309; Hamilton v. White, 5 N. Y. 9.

51 Joyce v. Conlin, 72 Wis. 607, 40 N. W. 212; Mccord v. High, 24 Iowa, 336; Amoskeag Manuf'g Co. v. Goodale, 46 N. H. 53. For acts held not to constitute

§ 224) also remove obstructions to his easement, and may enter upon the servient estate for that purpose.52 In cases where the title to the easement is clear, the owner of the servient estate may be restrained by injunction from obstructing it53

Same - destruction

224. Easements may be destroyed

(a) By release.

(b) By abandonment.

(c) By license to the servient owner.

(d) By misuser.

(e) By merger.

An easement may be released to the owner of the servient estate,, but such release is not good if by parol, unless it be executed.54 Easements may also be lost by abandonment,55 but this does not apply where the easement has been granted, unless there has been claim of adverse right.56 Easements are lost by abandonment only when they have been acquired by prescription.57 An easement may also an obstruction, see Green v. Goff, 153 111. 534, 39 N. E. 975. That a gate is not an obstruction of a right of way, see Hartman v. Fick, 167 Pa. St. 18, 31 Atl. 342. But see Rowe v. Nally, 81 Md. 367, 32 Atl. 198. 52 Joyce v. Conlin, 72 Wis. 607, 40 N. W. 212; Mccord v. High, 24 Iowa, 336.

53 Herman v. Roberts, 119 N. Y. 37, 23 N. E. 442; Frey v. Lowden, 70 Cal. 650, 11 Pac. 83S; Stallard t. Cushing, 76 Cal. 472, 18 Pac. 427; Schnitzius v. Bailey (N. J. Err. & App.) 32 Atl. 219; Martin v. Price [1894] 1 Ch. 276.

54 Dyer v. Sanford, 9 Mete. (Mass.) 395; Comstock v. Sharp (Mich.) 64 N. W. 22. A right to use a stairway in a building may be destroyed by the destruction of the building. Douglas v. Coonley, 84 Hun, 158, 32 N. Y. Supp. 444.

55 Snell v. Levitt, 110 N. Y. 595, 18 N. E. 370; Canny v. Andrews, 123 Mass. 155; Hiekox v. Railroad Co., 78 Mich. 615, 44 N. W. 143; Town of Freedom v. Norris, 128 Ind. 377, 27 N. E. 869; Steere v. Tiffany, 13 R. I. 568; Richard v. Hupp (Cal.) 37 Pac. 920. But see Jones v. Van Bochove, 103 Mich. 98, 61 N. W. 342; Pratt v. Sweetser, 68 Me. 344; Duncan v. Rodecker (Wis.) 62 N. W. 533; Suydam v. Dunton, 84 Hun, 506, 32 N. Y. Supp. 333.

56 Butterfield v. Reed, 160 Mass. 361, 35 N. E. 1128; Barnes v. Lloyd, 112 Mass. 224; Riehle v. Heulings, 38 N. J. Eq. 20; Ford v. Harris (Ga.) 22 S. E. 144; Edgerton v. Mcmullan, 55 Kan. 90, 39 Pac. 1021; Lovell v. Smith, 3 C. B. (N. S.) 120. See, also, Ward v. Ward, 7 Exch. 838.

57 Bannon v. Angier, 2 Allen (Mass.) 128; Barnes v. Lloyd, 112 Mass. 224; be destroyed by a license to the owner of the servient estate to do acts upon his land which interfere with the exercise of the easement; 58 for instance, an easement of light and air may be lost by a permission given the servient owner to erect a wall on his land which would obstruct the light.59 If the owner of the dominant state does anything which increases the burden of the easement, he thereby destroys his easement, unless the increase of burden can be separated from the original.60 Easements are also destroyed by merger; that is, by a union of the dominant and servient estates in the same person.61 But if the dominant estate is of greater duration than the servient, the easement will only be suspended during the continuance of the servient estate.62 And if the title to the latter estate is subsequently defeated, the result is the same,-a mere suspension of the easement.63 "When there is a merger, the easement is extinguished, and is not renewed by a subsequent grant of the dominant estate, though the same or a similar easement may be implied, or may arise by necessity.64

Srnyles v. Hastings, 22 N. Y. 217; Wiggins v. Mccleary, 49 N. Y. 346; Nitzell v. Paschall, 3 Rawle (Pa.) 76; Lindeman v. Lindsey, 69 Pa. St 93; Erb v. Brown, Id. 216; Bornbaugh v. Miller, 82 Pa. St 203. But see Owen v. Field, 102 Mass. 90.

58 Morse v. Copeland, 2 Gray (Mass.) 302; Addison v. Hack, 2 Gui (Md.) 221; Liggins v. Inge, 7 Bing. 682.

59 Winter v. Brockwell, 8 East, 308. See, also, Morse v. Copeland, 2 Gray (Mass.) 302.

60 Washb. Easem. & Serv. (4th Ed.) 704; Jones v. Tapling, 11 C. B. (N. S.) 283. Cf. Harvey v. Walters, L. R. 8 C. P. 162.

61 Mcallister v. Devane, 76 N. C. 57; Ritger v. Parker, 8 Cush. (Mass.) 145.

62 Thomas v. Thomas, 2 Cromp., M. & R. 34.

63 Tyler v. Hammond, 11 Pick. (Mass.) 193; Dewal v. Becker, 81 Md. 537, 82 Atl. 308.

64 Hurlburt v. Firth, 10 Phila. (Pa.) 135; Kieffer v. Imhoff, 26 Pa. St 438; Miller v. Lapham, 44 Vt 416; Hazard v. Robinson, 3 Mason, 272, Fed. Cas. No. 6,281.

§ 226)