1 Sec Kuhlman v. Hecht, infra, p. 819. - Ed.
King v. Murphy, 140 Mass. 254 ; Queen v. Chorley, 12 Ad. & El. N. S. 515 ; Crossley v. Lightowler, L. R. 2 Ch. App. 478, 482; Cartwright v. Maplesden, 53 N. Y. 622; White's Bank v. Nichols, 64 Id. 65. In Washburn on Easements, 3d ed., at page 661 and subsequent pages, the author says: "The owner of an easement may destroy his right to the same by actually abandoning the right as well as the enjoyment, 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 of the easement were resumed in favor of the dominant estate. It is not easy to define, in all cases, what would be 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 nonuser of an easement." "The question of abandonment is one of intention, depending upon the facts of the particular case. But time is not a necessary element in a question of abandonment. A cesser to use, accompanied by an act clearly indicating an intention to abandon the right, would have the same effect as a release, without reference to time." "Although an abandonment is sometimes inferred from a nonuser 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 continued is one of the elements from which the intention to abandon or retain the right is inferred. . . . The cesser to use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect as a release, without any reference to the time during which such cesser has continued." And the text of the learned author is well supported by the authorities he cites.
Here, after an abandonment by Mrs. Higgins, Edwin Snell conveyed the water from this spring to two houses upon his own premises, and, with the water running from the spring through the pipes to those houses, the premises have several times been bought and sold. There was a nonuser of the easement for upwards of1 twenty years, and a substituted easement was used during a large portion of that time.
Under such circumstances, we think, there was not even a question of fact for the jury; but that it was the duty of the court to rule, as a matter of law, that the easement was extinguished.
Morton, J., in
160 Massachusetts, 361. - 1893.
The plaintiff contends, in the next place, that the grantors were disseised by her at the time when they made and delivered the deed to the defendant. But the nature of the defendant's right, being a right of flowage, was such that its continued existence was consistent with the use and occupation of the premises by the plaintiff. There was nothing in the nature of the acts done by the plaintff upon the premises that was an interference with or adverse to the right of the defendant or his predecessors in title. So long as the defendant and his predecessors in title did not exercise the right of flowage, the plaintiff and her predecessors in title were at libety to use the land. Doubtless the plaintiff and those who preceded her could have used the premises in so adverse and exclusive a mannner that the lapse of twenty years would have barred the right of the defendant and those under whom he claims. But the use in the present case consisted in cutting hay, digging out muck, enlarging and using springs, and occupying a portion of it for a hen-house and hen-yard. There was nothing in all this that was adverse to, or infringed upon, the defendant's right. Arnold v. Stevens, 24 Pick. 106; Barnes v. Lloyd, 112 Mass. 224 . The jury, under instructions not objected to as to what would constitute an adverse use, have found that the right of flowage has not been lost by adverse use on the part of the plaintiff and those under whom she claims. We think there was evidence warranting such a finding.
The plaintiff also contends that the right of flowage has been lost by abandonment. The right rests upon an actual grant. It is well settled that an estate or easement derived from an actual grant is not lost by mere nonuse. White v. Crawford, 10 Mass. 183; Arnold v. Stevens, 24 Pick. 106; Owen v. Field, 102 Mass. 90, 114; Barnes v. Lloyd, 112 Mass. 224. There was evidence in the case that the right had not been abandoned. It was for the jury to say what weight should be given to the filling of the raceway. It could not be said that the consenting to it by the owner of the privilege was a conclusive act of abandonment, nor that the putting of the wheel into the wasteway was not a user of the easement. The jury, under instructions not otherwise objected to, have found that the right was not abandoned, and we think there was evidence justifying the finding.
b. Effect of license to owner of the servient estate, or one acting under him, to interfere with easement.
Peckham, J., in
139 New York, 19. - 1893. [Reported herein at p. 795.]
5. Specific Easements.
(1.) Distinguish Ways in Gross and Highways.
23 Ohio State, 614. - 1873.
[Reported herein at p. 810.]
(2.) Ways of Necessity.
Nelson, Ch.J., in
19 Wendell (N. Y.). 507. - 1838.
It is probable from the facts in the case, that the defendant is entitled to a private way across the eight-acre lot, from the Bedford road to his small lot, for agricultural purposes as a way of necessity. Lewis McDonald formerly owned both of these lots, and in 1792 sold the small one to Smith, from whom the defendant derives his title. McDonald died in 1797, and the eighty-acre lot fell to his brother James, from whom the plaintiff claims. The son of James, who was a witness, testified that there was no other way to the defendant's lot than over the locus in quo. If this was the situation of the lot at the time of the conveyance to Smith, and has thus continued ever since, a right of way followed as an incident to the grant. 1 Wins. Saund. 323, n. 6, to the case of Pompel v. Ricroft; 8 T. R. 56; 4 Maule & Selw. 393; Cro. Jac. 170; Siderf. 39; 5 Taunt. 311; Woolrych on Ways, 20, 22, 291. This way should be a convenient one over the adjoining close of the grantor, due regard being had to the interest of both parties. Woolrych, 23, and cases there cited. Subject to this rule it would seem reasonable that the grantor should be allowed to assign such way as he could best spare. Id. 2 Roll. Abr. 60. If he decline or omit, the grantee must select for himself, and the court would no doubt extend a liberal indulgence to the exercise of his discretion. Nothing short of evident abuse ought to invalidate the one thus designated and used, as the grantor or those under him would be in fault for not assigning a way themselves. But under this right, the party cannot set up a claim to the use of several ways over the adjoining close; it cannot be carried beyond the necessity. This was strongly exemplified in the case of Holmes v. Garing, 2 Bing. 76, where it was decided that a way of necessity became extinguished because the party could conveniently reach his lot by means of a close of his own, subsequently purchased.