90. Jackson v. Rounseville, 5 Mete. (Mass.) 127; O'hear v. De Goesbriand, 33 Vt. 593, 80 Am. Dec. 653; Howe v. Stevens, 47 Vt. 262; Shaw v. Beveridge, 3 Hill (N. Y.) 26, 38 Am. Dec. 616; First Baptist Church v. Witherell, 3 Paige (N. Y.) 296, 24 Am. Dec. 223. These cases seem to be based on the theory that a pew is "real estate," and that these forms of action always lie for "real tate." On this theory, trespass

- Injunction. The question of the propriety of the issuance of an injunction to restrain an interference with an easement, especially of a right of way, has been frequently the subject of litigation. An injunction for this purpose may assume a mandatory as well as a prohibitory form, as when, in the case of the obstruction of the exercise of the easement by a structure of a permanent or quasi permanent character, the decree requires the removal of the structure.91

In some of the reported cases, the court recognizes the right to an injunction to restrain the obstruction of an easement without the mention of any possible limitations upon the right,92 and in favor of such right, when the obstruction is of a permanent or quasi permanent character, is the consideration that otherwise the owner of the easement would be in effect compelled to sell his right for a price equal to the amount of the damages which he may recover on account of the obstruction.93 More usually, however, the courts recogquare clausum fregit or ejectment would lie for any easement or right of profit, since they are all "real estate," except when the interest is merely for years.

91. See Stallard v. dishing, 76 Cal. 472, 18 Pac. 427; Feitler v. Dobbins, 263 111. 78, 104 N. E. 108S; Robbins v. Archer, 147 Iowa, 743, 126 N. W. 936; Henry v. Koch, 80 Ky. 391, 44 Am. Rep. 484; Schaidt v. Blaul, 66 Md. 141, 6 Atl. 669; Green v. Richmond, 155 Mass. 188, 29 N. E. 770; Long-ton v. Stedman, 182 Mich. 405, 148 N. W. 738; Dulce Realty Co. v. Staed Realty Co., 245 Mo. 417, 151 S. W. 415; Rogerson v. Shepherd, 33 W. Va. 307, 10 S. E. 632.

92. See Mccann v. Day, 57 111. 100; Dewire v. Hanley, 79 Conn.

454, 65 Atl. 573; Shedd v. American Maize Products Co., 60 Ind. App. 146, 108 N. E. 610; Swisher v. Chicago & A. Rwy. Co., 235 Mo. 430, 138 S. W. 505; Nash v. New England Mut. Life Ins. Co., J27 Mass. 91; Vinton v. Greene, 158 Mass. 426, 33 N. E. 607;.Agnew v. Pawnee City, 79 Neb. 603, 113 N. W. 236; Herman v. Roberts, 119 N. Y. 37, 7 L. R. A. 226, 16 Am. St. Rep. 800, 23 N. E. 442. Nicholas v. Title & Trust Co.. 79 Ore. 226, Ann. Cas. 1917A, 1149, 154 Pac. 391; Bowers v. Myers, 237 Pa. St. 533, 85 Atl. 860; Kalin-owski v. Jacobowski, 52 Wash. 359, 100 Pac. 852.

93. See Tucknr v. Howard, 128 Mass. 361; Manbeck v. Jones. 190 Pa. St. 171, 42 Atl. 536. But the nize some restrictions upon the right to an injunction for this purpose.93a One such restriction is to the effect that equity will not take jurisdiction if it does not clearly appear that the easement actually exists in the applicant for the injunction, it being for a court of law rather than for one of equity to determine the existence of an easement.94 It has in one case been asserted that, in the case of a right of way, the location of the way must clearly appear.95 It has likewise, been stated that the injury to be prevented must be irreparable, or that an injunction will issue, provided the injury is of that character,96 and that the threatened interference with the exercise of the easefact that the injury can be compensated in damages has been referred to as a ground for refusing an injunction. Green v. Richmond, 155 Mass. 1S8; Berkeley v. Smith, 27 Gratt. (Va.) 892.

93a. See editorial note, 10 Columbia Law Rev. 355.

94. Oswald v. Wolf, 129 111. 200, 21 X. E. 839; Feitler v. Dobbins, 263 111. 78, 104 N. E. 1088; Bennett v Seligman, 32 Mich. 500; Hart v. Leonard, 42 N. J. Eq. 416, 7 Atl. 865; Todd v. Staats, 60 N. J. Eq. 507, 46 Atl. 645; Hacke's Appeal, 101 Pa. 245; Seaboard Air Line R. Co. v. Olive, 142 N. C. 257, 55 S. E. 263.

Conversely it is said that an injunction may issue if the existence of the easement is not doubtful. Espencheid v. Bauer, 235 111. 172, 85 X. E. 230; Ober-heim v. Reeside, 116 Md. 265, 81 Atl. 590; Imperial Realty Co. v. West Jersey & S. R. Co., 78 X. J. Eq. 110, 77 Atl. 1041; Manbeck v. Jones, 190 Pa. 171, 42 Atl. 536; Garvey v. Harbison-walker Refractories Co., 213 Pa. 177, 62 Atl. 778.

That the determination of the existence and character of the easement involves the construction of a written instrument does not appear to be ground for refusing relief in equity. Shreve v. Mathis, 63 N. J. Eq. 170, 52 Atl. 234; Oberheim v. Reeside, 116 Md. 265, 81 Atl. 590.

95. Fox v. Pierce, 50 Mich. 500, 15 N. W. 880. But see Bright v. Allan, 203 Pa. 386, 53 Atl. 248.

96. Murphey v. Harker, 115 Ga. 77, 41 S. E. 585; Oswald v. Wolf, 129 111. 200, 21 N. E. 839; Feitler v. Dobbins, 263 111. 78, 104 X. E. 1088; Henry v. Koch, 20 Ky. 391, 44 Am. Rep. 484; Jay v. Michael, 92 Md. 198, 48 Atl. 61; West Arlington Land Co. of Baltimore County v. Flannery, 115 Md. 274, 80 Atl. 965; Rogerson v. Shepherd, 33 W. Va. 307, 10 S. E. 632.

Ment must be substantial.97 Reference is also occasionally made to the permanent or continuous character of the obstruction as a consideration in favor of granting such relief.98 The fact that the plaintiff has not yet suffered any damage by reason of the easement does not appear to be conclusive against his right to an injunction." Occasionally an injunction has been refused on the ground that it would operate oppressively, the owner of the easement being left to his remedy at law,1 or a decree being made for the ascertainment and payment of damages. To some degree, as ordinarily in connection with an application for an injunction, the matter is within the discretion of the court, and it has been said that one will not be required to remove an obstruction of a merely partial character, if this would bear upon him with undue severity,3 especially if the owner of the easement has been guilty of laches in not earlier seeking redress.4

- Abatement. The person entitled to exercise an easement may himself remove or "abate" a structure or object which obstructs its exercise,5 provided, per97. Hagerty v. Lee, 45 N. J. Eq. 1, 15 Atl. 399; Green v. Richmond, 155 Mass. 188, 29 N. E. 770; Bentley v. Root, 19 R. I. 205, 32 Atl. 918; Wilson v. Cohen, Rice Eq. (S. Car.) 80. Compare Schmoele v. Betz( 212 Pa. 32, 108 Am. St. Rep. 845, 61 Atl. 525.

98. Danielson v. Sykes, 157 Cal. 686, 28 L. R. A. (N. S.) 1024, 109 Pac. 87; Russell v. Napier, 80 Ga. 77, 4 S. E. 857; Webber v. Gage, 39 N. H. 182; Shreve v. Mathis, 63 N. J. Eq. 170, 52 Atl. 234; Miller v. Lynch, 149 Pa. 460, 24 Atl. 80.

99. Danielson v. Sykes, 157 Cal. 686, 28 L, R. A. (N. S.) 1024,

109 Pac. 87; Feitler v. Dobbins, 263 111. 78, 104 N. E. 1088; Swift v. Coker, 83 Ga. 789, 20 Am. St. Rep. 347, 10 S. E. 442; Swisher v. Chicago, & A. Ry. Co., 235 Mo. 430, 138 S. W. 505.

1. Mcbryde v. Sayre, 86 Ala. 458, 3 L. R. A. 861, 5 So. 791; Hall v. Rood, 40 Mich. 46; Richard's Appeal, 57 Pa. St. 105.

2. Berkeley v. Smith, 27 Gratt. (Va.) 892.

3. Green v. Richmond, 155 Mass. 188, 29 N. E. 770; Bentley v. Root, 19 R. I. 205.

4. Green v. Richmond, 155 Mass. 188, 29 N. E. 770.

5. Quintard v. Bishop, 29 Conn.

Haps, the circumstances are not such that the removal may cause a breach of the peace.6 If, however, the obstruction was created by a former owner of the land and merely allowed by the subsequent owner to remain, its abatement by the owner of the easement is justified, it seems, only after he has notified the owner of the land to abate it.7 And such notice appears to be necessary even as against the original creator of the obstruction, if the abatement involves a trespass upon the latter's land.8