This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
That an easement of a right of way, created by a grant thereof in express terms, was at the time of the grant necessary for the purpose of access to the dominant tenement, has not been regarded as a reason for holding the easement extinguished when the necessity ceases,18a the rule thus differing from that which has been applied in connection with a right of way by necessity.18b
- Party wall. The easement of using a wall, or a part thereof, belonging to another, as a party wall, has been regarded as ceasing upon the destruction, by fire or other accident, of the wall and of the buildings separated thereby,19 and also upon such destruction of the buildings, though the wall remains standing.20 In thus asserting
W. Va. 629, L. R. A. 1917A, 524, 77 S. E. 142. Accordingly it has been decided that an easement of light may continue in existence although the building by which the light was availed of is destroyed. Tapling v. Jones, 11 H. L. Cos. 290; Scott v. Pape, 31 Ch. Div. 554; City Nat. Bank v. Van Meter, 59 N. J. Eq. 32, 45 Atl. 280, 61 N. J. Eq. 674, 47 Atl. 1131.
18a. Johnson v. Allen, 33 Ky. Law Rep. 621, 110 S. W. 851; Estep v. Hammons, 104 Ky. 144, 46 S. W. 715, (semble); Atlanta Mills v. Mason, 120 Mass. 244; Perth Amboy Terra Cotta Co. v. Ryan, 68 N. J. L. 474, 53 Atl. 699; Crounse v. Wemple, 29 N. Y. 540 (prescriptive way); Parsons v. N. Y., N. H. & H. R. Co., 216 Mass. 269, 103 N. E. 693; Zell v. Universalist Soc, 119 Pa. 390, 4 Am. St. Rep. 654, 13 Atl. 447, Ebert v. Mishler, 234 Pa. 609, 83 Atl. 596.
18b. Post, this section, notes 27-29.
19. Sherred v. Cisco, 4 Sandf. (N. Y.) 480; Partridge v. Gilbert, 15 N. Y. 601, 69 Am. Dec. 632; Antomarchi's Ex'r v. Russell, 63 Ala. 356, 35 Am. Rep. 40; Duncan, v. Rodecker, 90 Wis. 1, 62 N. W. 533. See Huck v. Flentye, 80 111. 258 (destruction of wall and single building supported thereby).
20. Moore v. .Shoemaker, 10 App. D. C. 6; Dowling v. Hen-nings, 20 Md. 179, 83 Am. Dec. 545; Hoffman v. Kuhn, 57 Miss. 746, 34 Am. Rep. 491; Bowhay v. Richards, 81 Neb. 764, 19 L.
That a party wall easement ceases on the destruction of the buildings, the courts appear to consider that there is a rule of law to that effect, necessitated by the consideration of the burden involved in compelling an owner to reconstruct his wall or building in such a way as to afford his neighbor the same easement as he had before. The rule is, however, it is submitted, in the case of the grant or reservation of a party wall easement, properly a rule of construction rather than of law,21 since it could be excluded by an expression of intention that the easement shall continue in spite of the destruction of the buildings.22 It might, however, in the case of such an easement, when created by prescription, it seems, be regarded as a rule of law.
In one case,23"24 it was decided that while ordinarily the destruction of a party wall and the buildings on both sides thereof would extinguish the party wall easements, and also the easement of a right to use a staircase in one building for purposes of access to the other, this was not so when the wall and staircase were immediately rebuilt in exactly the same location as before, it being said that "this conduct of the parties operated to revive the easement that was suspended by the destruction of the property." There is, in another state, a decision to the contrary effect,25 and it is
R. A. (N. S.) 883, 116 N. W. 677. Heartt v. Kruger, 121 N. Y. 386, 9 L. R. A. 135, 18 Am. St. Rep. 829, 24 N. E. 841; Odd Fellows' Hall Ass'n of Portland v. Hegele, 24 Ore. 16, 32 Pac. 679.
In Heartt v. Kruger, 121 N. Y. 386, 9 L. R. A. 135, 18 Am. St. Rep. 829, 24 N. E. 841 supra. the court emphasizes the fact that the easement was created by "implied grant" as corresponding to a preexisting Quasi-easement, distinguishing Brondage v. Warner, 2 Hill (N. Y.) 145, as being a case of express grant. It does not seem that this constitutes a substantial basis of distinction.
21. See Moore v. Shoemaker, 10 App. D. C. 6.
22. As in Frisbie v. Bigham Masonic Lodge No. 256, 133 Ky. 588, 118 S. W. 359.
23-24. Douglas v. Coonley, 156 N. Y. 521, 66 Am. St. Rep. 580, 51 N. E. 283.
25. Bonney v.. Greenwood, 96 Me. 335, 52 Atl. 786.
Somewhat difficult to see how, if the destruction of the buildings is otherwise sufficient to extinguish the easement, this can be avoided by the subsequent adoption of a particular plan of rebuilding. The decision might perhaps be supported on the theory that the grant was of an easement to endure so long as the land was utilized for buildings similar to the buildings originally existing thereon. The court quotes from a text book on the civil law to the effect that while "servitudes cease when the things are found in such condition that one can no longer use them," they "revive if the things are reestablished in such a manner that one can use them." But whatever the civil law doctrine in this regard may be, the existence of an easement, by the law of this country and of England, is not affected by the temporary impossibility of its exercise. In the case, for instance, of a right to conduct water over another's land, an injury to the aqueduct which makes it impossible, for the time being, to exercise the easement, in no way affects the existence of the easement. And the repair of the aqueduct consequently does not revive the easement, though it revives the possibility of its exercise.
The destruction of one of the buildings separated by a party wall has been held not to extinguish the easement in the wall in favor of the other building,26 and such a view is particularly suggested when the right of support is created by implied grant by way of necessity, the necessity enduring so long as the building supported endures.26a through the dominant tenement, or the owner thereof acquires another right of way.27 As the intention to create the way is inferred from the necessity of the way, the extent of the inference is limited by the same consideration. The acquisition of another right of way, however, is not sufficient to extinguish the way of necessity, unless the new right of way is reasonably sufficient for the enjoyment of the dominant tenement.27a of a preexisting private right of way became impossible of exercise, it was extinguished.29
- Way of necessity. A way of necessity has been regarded as coming to an end when the necessity ceases, as, for instance, when a highway is opened
26. Lexington Lodge v. Beal, 94 Miss. 521, 49 So. 833; Commercial fciat. Bank of Ogden v. Eccles, 43Utah, 91, 46 L. R. A.
(N. S.) 1021, 134 Pac. 614.
26a. See editorial note, 13 Columbia Law Rev. 754.
- Change in servient tenement. Occasionally an easement is created in such terms, or under such circumstances, as to indicate that the easement is to endure so long only as a structure on the servient tenement, in connection with which the easement is to be exercised, endures or is capable of use.28 In such case the easement comes to an end when the structure is destroyed or becomes incapable of use. A somewhat similar case is presented by a decision that when, by reason of the condemnation of part of the servient tenement for the purpose of a railroad right of way, the exercise
27. Carey v. Rae, 58 Cal. 159; Cassin v. Cole, 153 Cal 677, 96 Pac. 277; Collins v. Prentice, 15 Conn. 39, 38 Am. Dec. 61; Russell v. Napier, 82 Ga. 770, 9 S. E. 746; Oswald v. Wolf, 129 111. 200, 21 N. E. 839. Whitehouse v. Cum-mings, 83 Me. 91, 23 Am. St. Rep. 756, 21 Atl. 743; Oliver v. Hook, 46 Md. 301; Haserick v. Boulia-gorell Co., 77 N, H. 121, 88 Atl. 998; Palmer v. Palmer, 150 N. Y. 139, 55 Am. St. Rep. 653, 44 N. E. 966. But see Conley v. Fair-child, 142 Ky. 271, 134 S. W. 142, properly criticized, it is submitted, in 11 Columbia Law Rev. 478.
The English case of Holmes v. Goring, 2 Bing. 76, accords with the view generally adopted in this country, but it is questioned by Parke & Alderson, B. B., in
Proctor v. Hodgson, 10 Exch. 824.
27a. Hart v. Deering, 222 Mass. 407, 111 N. E. 37
That one having a way of necessity is given a mere revocable permission to pass to his land over other land has been held not to involve a termination of the necessity, so as to extinguish the right of way. Sweezy v. Vallette, 37 R. I. 51, 90 Atl. 1078.
28. Linthicum v. Ray, 9 Wall. 241, 19 L. Ed. 657; Shirley v. Crabb, 138 Ind. 200, 46 Am. St. Rep. 376.37 N. E. 130; Ballard v. Butler, 30 Me. 94. Central Wharf v. India Wharf, 123 Mass. .".t;7; Bartlett v. Peaselee, 20 N. H. 547, 51 Am. Dec. 242; Percival v. Williams, 82 Vt. 531, 74 Atl. 321.