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 .
76. Barry v. Eblavitch, 84 Md. 95, 33 L. R. A. 294, 35 Atl. 170.
78. Cowling v. Higgenson, 4 Mees. & W. 245; Dare v. Heath-cote, 25 L. J. (N. S.) Exch. 245; Williams v. James, L. R. 2 C. P. 577; Sloan v. Holliday, 30 Law Times (N. S.) 757; Parks v. Bishop, 120 Mass. 340, 21 Am. Rep. 519.
79. Parks v. Bishop, 120 Mass. 340, per Gray, C. J. citing Wimbledon, etc., v. Dixon, 1 Ch. D.
Condition and character of the dominant tenement when, during the prescriptive period, there was one dwelling house thereon, and subsequently two additional buildings were erected, each of which accommodated two families.80
After a right of way has been established along a certain line on the basis of prescriptive user of the servient tenement along that line, it cannot be changed by the person entitled thereto to another line,80a though such person may, it has been decided, deviate from the original line, in case of an obstruction by the landowner.80b In the case of a right of way appurtenant to certain land by prescription, as in that of one by grant, the way cannot be used for the purpose of going to or from other land beyond.80c
In the case of an easement to use a wall on another's land as a party wall, based on prescription, it being limited by the extent of the use during the prescriptive period, the one entitled to the easement has no privilege of raising the wall,80d or, if it is raised by its owner, of using the additional part.80e It would seem that when two adjoining owners acquire by prescription mutual party wall rights as regards a wall erected on the division line, the same rule would apply, so that neither could raise the wall as a whole without the other's consent.
362; Williams v. James, L. R. 2 C. P. 577; Atwater v. Bod-fish, 11 Gray 150.
80. Baldwin v. Boston & M. R. R. 181 Mass. 166, 63 N. E. 428.
80a. Nichols v. Peck, 70 Conn. 439, 66 Am. St. Rep. 122, 40 L. R. A. 81, 39 Atl. 803; Vance v. Adams (Ky.) 112 S. W. 927.
80b. Haley v. Concord, 59 N. H. 9, 47 Am. Rep. 176.
80c. Williams v. James, L. R. 2 C. P. 577. See ante Sec. 350.
80d. Welford v. Gerard, 108 Ky. 322, 56 S. W. 416; Bright v. J. Bacon & Sons, 131 Ky. 848. 116 S. W. 268, 20 L. R. A. (N. S.) 386; Mclaughlin v. Cecconi 141 Mass. 252, 5 N. E. 261; Bright v. Alian, 203 Pa. 294, 93 Am St. Rep. 769, 53 Atl. 251.
80e. Barry v. Edlavitch, 84 Md. 95, 35 Atl. 170; Bright v. Morgan, 218 Pa. 178, 11 Ann. Cas. 708, 67 Atl. 210; Brown & Hamilton Co. v. Johnson, 251 Pa. 378, 96 Atl. 823.
A right which was regularly, during the prescriptive period, exercised only during a certain season of the year, can, after such period, be exercised only at that season.81
A prescriptive right to divert water from a stream has been regarded as independent of the use to which the water may be put after diversion,82 but a substantial increase in the amount diverted would ordinarily not be permissible.83 A prescriptive right to maintain an aqueduct through another's land has been regarded as limited to the amount of water conducted
81. Cowell v. Thayer, 5 Mete. (Mass.) 253, 38 Am. Dec. 400; Griffin v. Bartlett, 55 N. H. 119; Davis v. Brigham, 29 Me. 391; Swan v. Munch, 65 Minn. 500, 67 N. W. 1022, 35 L. R. A. 743; Carlisle v. Cooper, 21 N. J. Eq. 576; Hall v. Augsbury, 46 N. Y. 622; Gardner v. Wright, 49 Ore. 609, 91 Pac. 286; Cleary v. Daniels, - Utah - , 167 Pac. 820.
82. Luttrel's Case, 4 Co. Rep. 86; Gallaher v. Montecito Valley Water Co., 101 Cal. 242, 35 Pac. 770; Walton Cranberry Co. v. Seamon, 171 Mich. 98, 137 N. W. 147. Compare Mastenbrook v. Alger, 110 Mich. 414, 68 N. W. 213; Scranton Gas & Water Co. v. Delaware, L. & W. R. Co., 240 Pa. 604, 47 L. R. A. (N. S.) 710, 88 Atl. 24.
83. S. O. & C. Co. v. Ansonia Water Co., 83 Conn. 611, 78 Atl. 432; Stock v. Hillsdale, 155 Mich. 375, 119 N. W. 435; Irving v. Borough of Media, 194 Pa. 648, 45 Atl. 482.
In Michigan while it was decided that a prescriptive right to take water from a lake was limited to the amount diverted during the prescriptive period (Stock v. Hillsdale, 155 Mich. 375, 119 N. W. 435) it was later decided by a majority of four judges to three, that the extent of such a right was to be measured not by the amount taken, but the level resulting from the taking, and that consequently the pipe could not be lowered as the level became lower. (Kennedy v Niles Water Supply Co., 173 Mich. 474, 43 L. R. A. (N. S.) 836, 149 N. W. 241.
In Mally v. Weidensteiner, 88 Wash. 398, 153 Pac. 342, it was decided that a non riparian owner who diverted one third of the total flow of the stream during the prescriptive period, had no right to claim, upon a diminution of the total flow, a right to more than one third, that is, a right to the same number of cubic feet per second as he enjoyed during the prescriptive period.
In Tinker v. Bessel, 213 Mass. 74, 99 N. E. 946, it appears to be held that a prescriptive right to take water from a spring is to be measured by the user which was apparent to the landowner.
It has been said, as regards through it during the prescriptive period.84 And it has been decided that one who has, during the prescriptive period, conducted water through an open ditch on another's land, does not thereby acquire the right to conduct water through covered pipes.85