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 .
But a grant of a right of way over an existing road does not necessarily involve a right of way as to the whole width of the road, so as to preclude the erection of an obstruction on the road not interfering with the reasonable exercise of the easement. Grafton v. Moir, 130 N. Y 465, 29 N. E. 974, 27 Am. St. Rep. 533; Abney v. Twombley, 39 R, I. 304, 97 Atl. 806; Clifford v. Hoare, L. R. 9 C. P. 362. See Gimble v. Wehr, 165 Wis. 1, 160 N. W. 1080.
11. Johnson v. Kinnicut, 2 Cush. (Mass.) 153; Short v. De-vine, 146 Mass. 119, 15 N. E. 148.
In Cleaves v. Braman, 103 Me. 154, 68 Atl. 857, it was held that the grant of a way over "a piece of land forty feet wide in every part" did not entitle the grantee to use the whole forty feet if not needed. Compare Tudor Ice Co. v. Cunningham, 8 Allen
12. Richey v. Welsh, 149 Ind. 214, 40 L. R. A. 105, 48 N. E. 1031; Jennison v. Walker, 11 Gray, (Mass.) 423 (aqueduct); Kesseler v. Bowditch, 223 Mass. 265, I11 N. E. 887 (windows); Galloway v. Wilder, 26 Mich. 97; Jaqui v. Johnson, 27 N. J. Eq. 526; Manning v. Port Reading R. Co., 54 N. J. Eq. 46, 33 Atl. 802; Johnson v. Hahne, 61 N. J. Eq. 438, 49 Atl. 5 (easement of light); Onthank v. Lake Shore R. Co., 71 N. Y. 174 (aqueduct); Moore-lead v. Snyder, 31 Pa. 514 (tail race); Garraty v. Duffy, 7 R. I. 476; Eureka Land Co. v. Watts, 119 Va. 506, 89 S. E. 968 (way); Rhoades v. Barnes, 54 Wash. 145, 102 Pac. 884 (right to take water from stream).
13. Durkee v. Jones, 27 Colo. 159, 60 Pac. 618; Peck v. Lloyd, 38 Conn. 566; Wynkoop v. Burger, 12 Johns. (N. Y.) 222; Hamilton cases do not explain how, since an easement can be created only by grant or its equivalent, one can acquire, by oral agreement, an easement not previously existing, even though he does, in exchange therefor, relinquish a similar easement which he has in the same land. A right of way along line A is not the same easement as a right of way along line B, even though the dominant and servient tenements are identical in the two cases. There are cases in this country,14 as in England,15 in which the view is indicated that the substituted way is to be regarded as temporary only, so that if such way is withdrawn by the owner of the servient tenement, the other has a right to use the old way. If, however, there is an intention permanently to change the route, it might well be found, it would seem, that the way over the old route is extinguished by abandonment.16 And in ease the owner of the easement makes expenditures on the servient tenement on the faith of the oral agreement, he might be regarded as acquiring an easement in accordance therewith by estoppel.17 The court would no doubt endeavor to avoid a finding that the easement over the original route was abandoned unless it could recognize a valid easement over the new route.
14. Wright v. Willis, 23 Ky. Law Rep. 556, 63 S. W. 991; Hamilton v. White, 5 N. Y. 9.
15. Lovell v. Smith, 3 C. B. N. S. 120.
16. Crounse v. Wemple, 29 N. Y. 540; Pope v. Devereux, 5 Gray imass.) 409. Nichols v. Peck, 70 Conn. 439, 40 L. R. A. 81, 66 Am. St. Rep. 122, 39 Atl. 830.
17. Ante, Sec. 366(c).
- Party walls. The grant of an easement to use a wall for party wall purposes prima facie involves the privilege of increasing the height of the wall in order to erect a higher building, if this does not unduly burden the wall, or in any way operate to the detriment of the adjoining proprietor,18 and subject to any express restriction in the grant as to the height to which the easement may extend.19
18. Graves v. Smith. 87 Ala. 450, 13 Am. St. Rep. 60, 6 So. 304; Tate v. Fratt, 112 Cal. 613, 44 Pac. 1061; Bright v. Bacon & Sons, 131 Ky. 848, 116 S. W. 386, 20 L. R. A. N. S. 386; Field v. Leiter, 118 111. 17, 6 N. E. 877; Everett v. Edwards, 149 Mass. 588, 5 L. R. A. 110, 14 Am. St. Rep. 462, 22 N. E. 52: Dauen-hauer v. Devine, 51 Tex. 480, 32 Ain. Rep. 627.
That he can raise the wall to the extent that it is on his own land, see Andrae v. Haseltine, 58 Wis. 395, 46 Am. Rep. 635. That he may raise a party wall although it is entirely on the land of the adjacent owner, see Tata v. Fratt, 112 Cal. 613, 44 Pac. 1061; Dorsey v. Habersack, 84 Md. 117, 35 Atl. 96.
It has been held, in at least one case, that, upon using the addition to the wall, the other proprietor is bound to contribute part of the cost. Sanders v. Martin, 2 Lea. (Tenn.) 213, 31 Am. Rep. 598, And Citizens Fire Ins. Co. v. Lockridge & Ridge-way, 132 Ky. 1, 20 L. R. A. (N. S.) 226, 116 S. W. 303, contains a dictuvi to that effect. Contra, Allen v. Evans, 161 Mass. 485.
The assumption in Walker v. Stetson, 162 Mass. 86, that he is so bound, appears to be based on the language of the original agreement under which the wall was constructed. The statute occasionally provides that he shall be so liable. Howell v. Goss, 128 Iowa, 569, 105 N W. 61; Younker v. Mccatchcn, 177 Iowa, 634, L. R. A. 1917B, 949, 159 N. W. 441.
The grant of a right to insert girders in a wall or to build against the wall does not confer party wall rights, so as to entitle the grantee to raise the wall. Moore v. Rayner, 58 Md. 411; Miller v. Stuart, 107 Md. 23, 68 Atl. 273.
19. Frowenfeld v. Casey, 139 Cal. 421, 73 Pac. 152; Henne v. Lankershim, 146 Cal. 70, 79 Pac. 853; Calmelet v. Sichl, 48 Neb. 505, 67 X. W. 467, 58 Am. St. Rep. 700; Fidelity Lodge v. Bond, 147 Ind. 437, 45 X. E. 338, 46 N. E. 825.
It appears to be the rule in England that if the adjoining owners are tenants in common or the wall, one of them cannot raise the wall without the others consent. Watson v. Gray, 12 Ch. Div. 192. A contrary view is asan addition thus made to the wall by virtue of one's right to use the wall as a party wall partakes of the character of the original wall, as regards the right of user thereof.19a And the requirement which exists in the case of the original wall, when placed on the division line, that it contain no openings, such windows,19b applies as well to the addition placed upon the wall.20