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 .
Any act which in terferes with the proper exercise of the easement, whether done by the owner of the servient tenement, or by a third person, is a "disturbance" or "obstruction" of the easement, for which an action will lie. A disturbance of the easement is usually by the owner of the servient tenement, and not by a third person, and what constitutes a disturbance by him may be best denned by stating what acts he may do without being guilty of a disturbance.
The owner of the servient tenement may make any use thereof, which is not calculated to interfere with the exercise of the easement.59 Accordingly, it has been held that one whose land is subject to an easement of flowage in favor of another may take ice formed on the water,59a unless this would interfere with the purpose
80 Am. St. Rep. 955, 59 Pac. 159.
58. See 1 Tiffany, Landlord & Ten., Sec.Sec. 89, 90.
58a. Earley v. Hall, 89 Conn. Gog, 95 Atl. 2.
59. Long v. Gill, 80 Ala. 408: Rice v. Ford (Ky.), 120 S. W. 288; Kansas Cent. R. Co. v. Allen, 22 Kan. 285, 31 Am. Rep. 190; Chandler v. Goodridge, 23 Me. 78; Kendall v. Hardy, 208 Mass. 20, 94 N. E. 254; Harvey v. Crane, 85 Mich. 316, 12 L. R. A. 601, 4S
N. W. 582; Pomeroy v. Salt Co., 37 Ohio St. 520; Smith v. Rowland, 243 Pa. 306, 90 Atl. 183; Abney v. Twombly, 39 R. I. 304, 97 Atl. 806; Southern Railway Co. v. Beaudrot, 63 S. C. 266, 41 S. E. 299; Rex v. Joliffe, 2 Term. Rep. 95.
59a. Stevens v. Kelley, 78 Me. 445, 57 Am. Rep. 913, 6 Atl. 868; Paine v. Woods, 108 Mass. 160; Eidemuller Ice Co. v. Guthrie, 42 Neb. 238, 28 L. R. A. 581, 60 N.
The owner of the servient tenement may, it seems, at his own expense, make changes in connection with the appliances placed thereon for the purpose of exercising the easement, in so far as such changes in no way interfere with the exercise of the easement, he being entitled, except in so far as the exercise of the easement is concerned, to have his land in condition satisfactory to himself.6251
The owner of land subject to a right of way may himself use the same way,63 provided this does not
W. 717; Valentino v. Schauta, 216 N. Y. 1, L. R. A. 1916B, 1044, Ann. Cas. 1917C, 780, 109 N. E. 866; Searle v. Gardner, 13 Atl. 835 (Pa.)
59b. Howe v. Andrews, 62 Conn. 398, 26 Atl. 394; Stevens v. Kelley, 78 Me. 445, 57 Am. Rep. 813, 6 Atl. 868; Bigelow v. Shaw, 65 Mich. 341, 8 Am. St. Rep. 902, 32 N. W. 800; Dodge v. Berry, 26 Hun (N. Y.) 246.
60. Smith v. Langewald, 140 Mass. 205, 4 N. E. 571; Cleveland. C. C. & St. L. R. Co. v. Simpson, 182 Ind. 693, 104 N. E. 301; Greenmount Cemetery Co's Appeal, 4 Atl. 528 (Pa.)
61. Moffitt v. Lytle, 165 Pa. 173, 30 Atl. 922.
62. Espencheid v. Bauer, 235 111. 172, 85 N. E. 230.
He cannot enclose a part of the land on which a railroad right of way is located, under claim of exclusive right. Southern R. Co. v. Beaudrot, 63 S. C. 266, 41 S. E. 299. But he has, it has been decided, the right to a. private crossing over the right of way if this does not unreasonably interfere with the use of the right of way for railroad purposes. Cincinnati, H. & D. Co. v. Wachter, 70 Ohio St. 113, 70 N. E. 974.
62a. See Olcott v. Thompson, 59 N. H. 154, 47 Am. Rep. 184.
63. Rice v. Ford (Ky.), 120 S. W. 288; Teachout v. Capital Lodge, 128 Iowa, 380, 104 N. W. 440 (stairway); Morgan v. Boyes. 65 Me. 124; Kretz v. Fireproof Storage Co., 127 Minn. 304. 149 unreasonably interfere with the exercise of the other's easement.64 And he may also grant to another or others a similar right of way,65 subject to the same proviso,66 and provided, further, the prior grant was not intended to be exclusive.67
The owner of a right of way in a city cannot ordinarily demand that the space over the way be absolutely free from projections above the way, such as bay windows, at such a height as not to interfere with the right of passage,68 and the owner of the servient tenement may even place an arch over, or otherwise span, the line of the right of way, and erect a building thereon, provided the building is not so near the ground as unreasonably to interfere with the user of the way,69 and, provided further, the language of the grant, construed with reference to the surrounding circumstances, does not indicate an intention that nothing shall be erected thereover.70
N. W. 648; Campbell v. Kuhlraan, 38 Mo. App 628; Goss v. Calhane, 113 Mass. 423; Smith v. Rowland, 243 Pa. 306, 90 Atl. 183.
64. Herman v. Roberts, 119 N. Y. 37, 7 L. R. A. 226, 16 Am. St. Rep. 800, 23 N. E. 442, where the owner of the servient tenement injured the roadway prepared by the owner of the dominant tenement, by hauling heavy loads thereover.
65. Morgan v. Boyes, 65 Me. 124; Smith v. Rowland, 243 Pa. 306, 90 Atl. 183. See Morton v. Thompson, 69 Atl. 432, 38 Atl. 88.
66. Greene v. Canny, 137 .Mass. 64; Jarman v. Freeman, 78 N. J. Eq. 464, 79 Atl. 1065, 83 Atl. £72.
67. Greene v. Canny, 137 Mass. 64; Thompson v. Germania
Life Ins. Co., 97 Minn. 89, 106 N. W. 102.
68. Bittello v. Lipson, 80 Conn. 497, 69 Atl. 21; Burnham v. Kevins, 144 Mass. 88, 59 Am. Rep. 61, 10 N. E. 494. But see Schmoele v. Betz, 212 Pa. 41, 108 Am. St. Rep. 845, 61 Atl. 525.
69. Atkins v. Bordman, 2 Mete. (Mass.) 457, 37 Am. Dec. 100; Lipsky v. Heller, 199 Mass. 310, 85 N. E. 310; Duncan v. Gold-thwait, 216 Mass. 402, 103 N. E. 701; Sutton v. Groll, 42 N. J. Eq. 213, 15 L. R. A. 487; Hollins v. Demorest, 129 N. Y. 15 L. R. A. 487, 29 N. E. 1093; Grafton v. Moir, 130 X. Y. 465, 27 Am. St. St. Rep. 533, 29 N. E. 974; Andrews v. Cohen, 221 N. Y. 14S, 116 N. E. 862; Duross v. Singer, 224 Pa. 573, 73 Atl. 951; Stevenson v. Stewart, 7 Phil. (Pa.) 293.
- Gates over way. The cases are generally to the effect that, in the absence of language or circum- stances calling for a different construction of the grant or reservation of a right of way, the owner of the servient tenement is entitled to maintain a fence with a gate therein, at either end of the way, that is, at the point where the servient tenement abuts upon a highway or upon another's property,71 and he may even be justified in placing, instead of a gate, remov70. For cases in which the terms and circumstances of the grant of the way were regarded as such as to preclude any erections over the way, at any height from the ground, see Schwoerer v. Boylston Market Ass'n, 99 Mass. 285; Brooks v. Reynolds, 106 Mass. 31; Attorney General v. Williams, 140 Mass. 329, 54 Am. Rep. 468; Crocker v. Cotting, 181 Mass. 146, 63 N. E. 402; Frost v. Jacobs, 204 Mass. 1, 90 N. E. 357; Goodwin v. Bragaw, 87 Conn. 31, 86 Atl. 668.