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 owner of the easement may enter on the servient tenement and make such changes therein as are necessary for the proper exercise of the easement.47 Thus, one having a right of way may prepare the land for its exercise, according to the nature of the way, that is, according as it may be a foot way, a horseway, or a way for all teams and carriages.48 And he may subsequently make alterations in the servient tenement in so far as this may be necessitated by a change of conditions for which he is not responsible.49 He cannot, however, make alterations in the servient tenement, which are not necessary for the exercise of the easement, even though they conduce to the convenience of its exercise, if such alterations will injuriously affect the servient tenement.50
The owner of the easement may likewise enter on the servient tenement in order to make any repairs necessary to the exercise of the easement, and may make use of the servient tenement for this purpose to a reasonable extent;51 and he may even prevent the con47. Newcomen v. Coulson, 5 Ch. Div. 133; Burris v. People's Ditch Co., 104 Cal. 248, 37 Pac. 922; White v. Eagle & Phenix Hotel Co., 68 N. H. 38, 34 Atl. €72; Freeman v. Sayre, 48 N. J. Law, 37; Herman v. Roberts, 119 N. Y. 37, 7 L. R. A. 226, 16 Am. St. Rep. S00, 23 N. E. 442; Hammond v. Hammond, 258 Pa. 51, 701 Atl 855; Wallis v. First Nat. Bank of Racine, 155 Wis. 306, 143 N. W. 670.
48. Senhouse v. Christian, 1 Term. Rep. 560; Newcomen v. Coulsen, 5 Ch. Div. 133; Knudson v. Frost, 56 Colo. 530, 139 Pac. 533; White v. Eagle & Phenix Hotel Co., 68 N. H. 38, 34 Atl. 672; Herman v. Roberts, 119 N.
Y. 37, 7 L. R. A. 226, 16 Am. St. Rep. 800, 23 N. E. 442.
49. Nichols v. Peck, 70 Conn. 439, 40 L. R. A. 81, 66 Am. St. Rep. 122, 39 Atl. 493; Finlinson v. Porter, L. R. 10 Q. B. 188.
50. Capers v. Mckee, 1 Strob. L. (S. Car.) 164; Mcmillen v. Cronin, 13 Hun (N. Y.) 68; Knudson v. Frost, 56 Colo. 530, 139 Pac. 533; Hotchkiss v. Young, 42 Ore. 446,'71 Pac. 324; Redemp-torists v. Wenig, 79 Md. 348, 29 Atl. 667; Draper v. Varnerin, 220 Mass. 67, 107 N. E. 350.
51. Pomfret v. Ricroft, 1 Wms. Saund. 323, note 6; Pico v. Coli-nas, 32 Cal. 578; Lamott v.
Ewers, 106 Ind. 310, 55 Am. St. Rep. 746, 6 N. E. 636; Hammond struction of a building necessary to the beneficial use of the land, if the building would prevent the making of repairs.52
In the absence of an express stipulation or prescriptive obligation to that effect, there is no requirement that the owner of the servient tenement put or keep it in proper condition for the exercise of the easement, though he must not actively obstruct its exercise.53 So the fact that the owner of a building has a right of support from an adjoining building does not entitle him to demand that the owner of the latter keep it in repair so as to furnish sufficient support,54 nor can the owner of an upper floor compel the repair of the lower floor by the owner thereof,55 v. Woodman, 41 Me. 177, 66 Am. Dec. 219; Prescott v. White, 21 Pick. (Mass.) 341; Brown v. Stone, 10 Gray (Mass.) CI, 69 Am. Dec. 303; Mcmillan v. Cronin, 75 N. Y. 474; Thompson v. Uglow, 4 Ore. 369; Walker v. Pierce, 38 Vt. 94.
In Kepler v. Border, 179 Iowa, 818, 161 N. W. 302, where several different persons had the right to use a private road, the court made an order apportioning the cost of repairs as between them.
52. Goodhart v. Kyett, 25 Ch. Div. 182.
53. Nichols v. Peck, 70 Conn. 439, 40 L. R. A. 81, 66 Am. St. Rep. 122, 39 Atl. 493; Hastings v. Chicago, R. I. & P. R. Co., 148 Iowa, 390, 126 N. W. 786; Brid-well v. Neltner, 173 Ky. 847, 191 S. W. 633; Gillis v. Nelson, 16 La. Ann. 275; Ballard v. Butler, 30 Me. 94; Rowe v. Nally, 81 Md. 367, 32 Atl. 198; Doane v. Badger, 12 Mass. 65; Harvey v.
Crane, 85 Mich. 316, 12 L. R. A. 601, 48 N. W. 582; Wynkoop v. Burger, 12 Johns. (X. Y.) 222: Herman v. Roberts, 119 N. Y. 371: 7 L. R. A. 226, 16 Am. St. Rep. Sco, 23 N. E. 442.
So he is under no obligation to fence off a way to which his land is subject. Brill v. Brill, 108 N. Y. 511, 15 N. E. 538; Wiley v. Ball, 72 W. Va. 685, 79 S. E. 659, and in the case of a ditch for the supply of drinking water, it is not prima facie for the owner of the servient tenement to fence off the ditch so that the water will not be polluted by his cattle. Bellevue v. Daly, 14 io, 545, 15 L. R. A. (N. S.) 992, 94 Pac. 1033. And see Mccoy v. Chicago. M. & St. P. R. Co., 176 Iowa, 139, 155 N. W. 995.
54. Pierce v. Dyer, 109 Mass. 374, 12 Am. Rep. 716.
55. Tenant v. Goldwin, 1 Salk. 360, 2 Ld. Raym. 1089; Colebeck v. Girdlers Co., 1 Q. B. Div. 234;
For which the right of flowage was created.59b And one whose land is subject to a right of way may take profits, such as herbage or minerals, from the ground on which the way is located,60 and may even plough the ground, it has been said, provided this does not unreasonably interfere with the exercise of the easement.61 He cannot pasture stock on the ground on which the way is located, especially if this is a source of danger to persons using the way.62
That one has party wall rights in a wall or a part of a wall imposes no obligation on him, or on the owner of the wall, to reconstruct it when destroyed by fire or other accidental cause.55a And it would seem questionable, on principle, whether one person entitled to use a party wall should have contribution from the other on account of expenditures for repairs, additions or reconstruction, undertaken by the former for his own benefit, though enuring to the benefit of the latter.55b
The question of the liability for damage caused by the failure to repair or properly to construct an appliance or structure on the servient tenement, the purpose of which is to make the exercise of the easement feasible or convenient, would seem ordinarily to depend on who is in control thereof. If the owner of the dominant tenement, for instance, constructs a conduit or ditch on the servient tenement of which he retains control, he is liable, it would seem, if, by reason of failure to keep it in repair, the servient tenement is flooded,56 and so it has been held that he is liable if damage accrues to cattle belonging to the owner of the servient tenement by reason of failure to protect them from the danger of falling into a "washout" occurring in a ditch constructed by him.57 On the other
Pierce v. Dyer, 109 Mass. 374, 12 Am. Rep. 716; Jackson v. Bruns, 129 Iowa, 616, 3 L. R. A. (N. S.) 510, 106 N. W. 1; Gale, Easements (9th Ed.) 479. But see uictum in Graves v. Berdan 26 N. Y. 498.
55a. Antomarchi's Ex'r v. Russell, 63 Ala. 356, 35 Am. Rep. 40; Partridge v. Gilbert, 15 N. Y. 601, 69 Am. Dec. 632; Odd Fellows' Hall Ass'n v. Hegele, 24 Ore. 16, 32 Pac. 679; Duncan v. Rodecker, 90 Wis. 1, 62 N. W. 533.
55b. But that there is a right of contribution. Howze v. Whitehead, 93 Miss. 578, 46 So. 401; Campbell v. Mesier, 4 Johns. Ch. 334; Sanders v. Martin, 2 Lea (Tenn.) 213. Contra, Antimarchi's Exc'r v. Russell, 63 Ala. 356, 35 Am. Rep. 40. See citations, ante, Sec. 356, notes 64-66.
56. Egremont v. Pulman, M. & M. 404. See Williams v. Grou cott, 4 Best & S. 199; Jones v. Pritchard (1908), 1 Ch. 630.
57. Big Goose and Beaver Ditch Co. v. Morrow, 8 Wyo. 547, hand, it is well recognized that while the tenant of a room in an office building has an easement in the halls and elevators for the purpose of access to his room, the owner of the building, as having control of the halls and elevators, is the one liable for injuries caused by defects therein.58 And one whose land is crossed by a railroad right of way is not liable for personal injuries caused to another by reason of defective railway equipment or negligent management thereof.58a