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 .
It has been said that when an easement is created for a particular purpose, it comes to an end upon a cessation of that purpose,9 which means, apparently, that an easement which is created to endure only so long as a particular purpose is subserved by its exercise, comes to an end when it can no longer subserve such purpose.10
366; Sargent v. Hubbard, 102 Mass. 380; Morgan v. Boyes, 65 Me. 124; Joyce v. Conlin, 72 Wis. 607, 40 N. W. 212.
6. Schmidt v. Brown, 226 I11. 590, 11 L. R. A. (N. S.) 457, 117 Am. St. Rep. 261, 80 N. E. 1071; Keplinger v. Woolsey, 4 Neb. (unoff) 282, 93 N. W. 1008.
But in Davies v. Williams, 16 Q. B. 546, the removal of a house, which was at the time inhabited, was regarded as justifiable, provided notice to remove it had been previously given.
7. O'shaughnessy v. O'rourke, 36 Miss. 518, 73 N. Y. Supp. 1070. Applying the rule which exists in the ordinary case of a nuisance, as asserted in Penruddock's Case, 5 Co. Rep. 101.
8. Jones v. Williams, 11 Mees. & W. 176; Lemmon v. Webb (1905), App. Cas. 1.
9. National Guaranteed Manure Co. v. Donald, 4 Hurlst. & N. 8; Long v. Louisville, 98 Ky. 67, 32 S. W. 271; Chicago & N. W. Ry. Co. v. Sioux City Stock-yards Co., 176 Iowa, 659, 158 N. W. 769; Hahn v. Baker Lodge No. 47, 21 Ore. 30, 13 L. R. A. 158, 28 Am. St. Rep. 723, 27 Pac. 166; Riefler & Sons v. Wayne Storage Water Power Co., 232 Pa. 282, 81 Atl. 300.
10. See Cotting v. Boston, 201
The question then is, in each ease, what is the particular purpose to be subserved by the easement, and this, in the case of an easement created by grant, is a question of intention. In the case of an easement created by prescription, on the other hand, the question as to what is the particular purpose to be subserved by the easement is presumably to be determined with reference to the apparent purpose of the user during the prescriptive period.
An easement to use a dock or waterway for vessels has been regarded as coming to an end when, owing to the construction of a street by the municipality, such use of the dock or waterway became impossible.11 And an easement to be exercised for the benefit of a particular lot has been considered to cease when the lot became permanently submerged by the waters of a river,12 or the lot was appropriated for a street.11 Likewise, a right of approach to an upper room or floor in a building was held to come to an end when the building was destroyed.14 So, in the case of the grant of a right of way for a railroad, a reservation in favor of the owner of the land of the privilege of a crossing, by which to pass to other land belonging to him, was construed as giving such crossing so long only as the two pieces of land belonged to the same person.15 In these various cases the easement, being one created by grant, came to an end, it is conceived, because it was intended, or presumed to be intended, to come to an end upon an event such as occurred, rather than as occasionally suggested, because the impossibility of the exercise of an easement, or the impossibility of its exercise for the same purpose as before, necessarily involves its extinguishment. That an easement may continue to exist even though its exercise is temporarily impossible, is not open to question, and in the cases above referred to, the impossibility of its continued exercise as before, while it threatened to be permanent, might, in the event, have proven to be temporary merely.
Mass. 97, 87 N. E. 205; Cotton States Lumber Co. v. James, 98 Miss. 134, 53 So. 410; Bangs v. Parker, 71 Me. 458; Hall v. Armstrong, 53 Conn. 554, 4 Atl. 113; In Johnson v. Knapp, 150 Mass. 267, 23 N. E. 40, it was held that, even though a pipe was actually used at the time of the severance of ownership for the purpose of conducting water, still, if the supply of water was dependent on the continuance of a license to take it from other land, the easement which passed was to endure only so long as it could be rightfully taken, that is, until the license was revoked.
11. Mussey v. Union Wharf, 41 Me. 34; Central Wharf & Wet Dock Corp. v. Proprietors of
India Wharf, 123 Mass. 567.
12. Weis v. Meyer, 55 Ark. 18, 17 S. W. 339.
13. Hancock v. Wentworth, 5 Mete. (Mass.) 446. See Brown v Ore. Short Line R. Co., 36 Utah, 257, 24 L. R. A. (N. S.) 86, 102 Pac. 740.
14. Hahn v. Baker Lodge No. 47, 21 Ore. 30, 13 L. R. A. 158, 28 Am. St. Rep. 723, 27 Pac. 166; Cotting v. Boston, 201 Mass. 97, 87 N. E. 205.
In Shirley v. Crabb, 138 Ind. 200, 46 Am. St. Rep. 376, 37 N. E. 130, the extinguishment of such an easement appears to be based on the destruction of the servient building, not the dominant, though both were as a matter of fact destroyed. In Douglas v.
The destruction of a building on the dominant tenement will effect an extinguishment of the easement if the easement was intended to be exercised only in connection with that particular building,10 while it will not have that effect if it was intended to be exercised in connection with the land, independently of the existence thereon of a building, or of sonic particular
Coonley, 156 N. Y. 521, 51 N. E. 283, the easement was held to be suspended and revived. See Post, this section, notes 16, 17, 19-26a, 28, 29.
15. Knowlton v. New York, N. H. & H. R. Co., 72 Conn. 188, 44 Atl. 8; Marino v. Central R. Co., 69 N. J. L. 628, 56 Atl. 306; Van-dalia R. Co. v. Furnas, 1S2 Ind. 306, 106 N. E. 401. Compare Rathbun v. New York, N. H. & H. R. Co., 20 R. I. 60, 37 Atl.
16. Day v. Walden, 46 Mich. 575, 10 N. W. 26; Blake v. Clark, 6 Me. 436. Compare Stevenson v. Wallace, 27 Gratt. (Va.) 77.
17. Hottell v. Farmers' Protective Ass'n, 25 Colo. 67, 71 Am. St. Rep. 109, 53 Pac. 327; Reynolds v. Union Savings Bank, 155 Iowa, 519, 49 L. R. A. (N. S.) 194, 3 36 N. W. 529; Bangs v. Parker, 71 Me. 458; Chew v. Chew, 39 N. J. Eq. 396; Hennen v. Deveny, 71 building.17 An easement of flowage for the benefit of a canal has been held to come to an end when the canal was abandoned.18