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 .
The mode in which an easement may be exercised, that is, the character and extent of the rights and privileges involved therein, is, in the case of an easement created by grant, determined by construction of the language of the grant.55 So it is a question of construction whether the easement is restricted by the use made of the dominant tenement at the time of the grant, or whether the burden of the easement may be increased with any increase or change in the use of the dominant tenement.56
Since the language used in the grant of an easement is ordinarily of a general character, containing no mention of specific rights and privileges, the process of construction involves not only the ascertainment of the actual intention from the language used, but also the establishment of a presumed, a fictitious, intention, in regard to matters as to which, so far as appears, there was no actual intention,57 and for this purpose the courts have established certain rules of construction to be applied in connection with such a grant. Frequently these rules are stated as positive rules of law and not of construction, but they are, in their last analysis, merely rules of construction, since they are controlled by any expression of intention in the grant. For instance, when it is said that the owner of the dominant tenement may make such changes on the servient tenement as are necessary for the proper exercise of the easement,58 this properly means that the grant of an easement is prima facie to be construed as intended to confer such a privilege. This practice of stating a rule of construction in the form of a rule of law is of such obvious convenience in this connection that it will be adopted to some extent in the following pages, in spite of the technical inaccuracy involved therein.
55. Whitehead v. Parks, 2 Hurl. & X. 370; Williams v. James, L. R. 2 C. P., 577; Field v. Letter, 118 111. 17, 6 N. E. 877; Moore v. Fletcher, 16 Me. 63, 33 Am. Dec. 633; French v. Marstin, 24 N. If. 440, 57 Am. Dec, 294; Abbott v. Butler, 59 X. H. 317; Wells v. Tolman, 156 N. Y. 630, 51 N. E.
271; Kinney v. Hooker, 65 Vt. 333, 36 Am. St. Rep. 864, 26 Atl. 690; Stephen Putney Shoe Co. v. Richmond F. & P. R. Co., 116 Va. 211, 81 S. E. 93.
56. Post, Sec. 369.
57. See Salmond, Jurisprudence (4th Ed.) 141, note.
As in the case of other written instruments, the circumstances under which the grant was made are to be considered as aids in its construction.59 In case of doubt the grant of an easement is construed, as are conveyances generally, in favor of the grantee rather than the grantor.'1" While a reservation of an easement is, it seems, to be construed in favor of the grantee of the land.61
The mode in which the grantee of the easement, wtih the grantor's acquiescence, exercised the easement after its acquisition, that is, the practical construction of the grant by the parties, may be referred to in order to aid in ascertaining its meaning,62 but the fact that land, the use to which the water is put is immaterial.66 These decisions do not appear to support the statement. If the owner of an easement enters on the servient tenement for a purpose not included in the rightful exercise of the easement, he is liable as a trespasser to the same extent as if he had no easement.67
The grantee made for a considerable time a more limited use of the land than that justified by the grant cannot affect the construction of a grant which is in terms unambiguous.63
58. Post Sec. 370.
59. Wood v. Saunders, 44 Law J. Ch. 514; Currier v Howes, 103 Cal. 431, 37 Pac. 521; Peck v. Mackowsky, 85 Conn. 190, 82 Atl. 199; Baker v. Frick, 45 Md. 337, 24 Am. Rep. 506; Mendell v. Delano, 7 Mete. (Mass.) 176; Row-ell v. Doggett, 143 Mass. 483, 10 N. E. 182; Mcconnell v. Rathbun, 46 Mich. 303, 9 N. W. 426; White v. Eagle & Phenix Hotel Co., 6S N. H. 38, 34 Atl. 672; Cheswell v. Chapman, 38 N. H. 14, 75 Am. Dec. 158; Cooper v. Louanstein, 37 N. J. Eq. 284; Herman v. Roberts, 119 X. Y. 37, 7 L. R. A. 226, 16 Am. St. Rep. 800, 23 N. E. 442; Hotchkiss v. Young, 42 Ore. 446, 71 Pac. 324; Mercantile Library Co. v. Fidelity Trust Co.,
235 Pa. 5, 83 Atl. 592; Smith v. Duncan, 35 Utah, 203, 99 Pac. 673.
60. Sweeney v. Landers, Frary & Clark, 80 Conn. 575, 69 Atl. 566; Frisbie v. Bigham Masonic Lodge No. 256, 133 Ky. 588, 118 S. W. 359; Atkins v. Bordman, 2 Mete. (Mass.) 457; Duross v. Singer, 224 Pa. 573, 73 Atl. 951; First Baptist Soc. v. Wetherall, 34 R. I. 155, 82 Atl. 1061; Stephen Putney Shoe Co. v. Richmond F. & P. R. Co., 116 Va. 211, 81 S. E. 93.
61. Mitchell v. Reid, 192 N. Y. 255, 85 N. E. 65; Redomptorists v. Wenig, 79 Md. 348, 29 Atl. 667. See Reese Howell Co. v. Brown, 48 Utah. 142, 158 Pac. 684.
It has been said in one state that the owner of an easement in the land of another need not use it in the particular manner prescribed by the instrument which creates it, and may use it in a different manner, provided he does not increase the servitude or change it to the injury of the servient tenement.64 The exact meaning of this statement does not clearly appear. It can hardly mean that one having an easement of a certain character can substitute an easement of a different character, provided this does not operate to the prejudice of the servient tenement.65 The statement was made on the authority of decisions that in the case of an easement to flow land or to have water pass to one's
62. Fox v. Millar, 150 Fed. 320; Winslow v. City of Vallejo, 148 Cal. 723, 5 L. R. A. (N. S.) 851, 113 Am. St. Rep. 349, 84 Pac. 191; Drummond v. Foster, 107 Me. 401, 78 Atl. 470; Blais v. Clare, 207 Mass. 67, 92 N. E. 1009; Onthank v. Lake Shore & M. S. R. Co., 71 N. Y. 194; Bernero v. Mefarland Real Estate Co., 134 Mo. App. 290, 114 S. W. 531; Mercantile Library Co. v. Fidelity Trust Co., 235 Pa. 5, 83 Atl. 592; Cram v. Chase, 35 R. I. 98, 43 L. R. A. N. S. 824, 85 Atl. 642; Sked v Pennington. Spring Water Co., 72 N. J. 599, 65 Atl. 713.