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 .
An easement is ordinarily extinguished if one person acquires an estate in fee simple in possession in both the dominant and servient tenements.32 By reason of the perpetual right of possession of the tenement which was previously subject to the easement, such person and his heirs can make any use whatsoever thereof, and the inferior right of easement, its utility having thus disappeared, is swallowed up in the superior right of possession.
"When one person acquires estates in possession in both the dominant and servient tenements, but they are such in character that one wall or may terminate before the other, the utility of the easement, though in abeyance for the time being, is liable to revive by reason of the termination of one of such estates, and consequently there is no reason for regarding it as extinguished. So the easement is not extinguished by reason of the fact that one has an estate in fee simple in one tenement and an estate for life or for years in the other.33 But though the estates are of unequal duration, the easement should, it would seem, be regarded as extinguished if it cannot possibly endure after the less estate comes to an end, as when an easement is created in favor of a life tenant of land for his life, and subsequently he acquires a fee simple estate in the servient tenement, or the fee simple tenant of the servient tenement acquires his life estate in the dominant tenement.
32. Smith v. Roath, 238 111. 247, 128 Am. St. Rep. 123, 87 N. E. 414; Warren v. Blake, 54 Me. 276,
89 Am. Dec. 748; Capron v. Green-way, 74 Md. 289, 22 Atl. 269; Ritger v. Parker, 8 Cush. (Mass.)
145, 54 Am. Dec. 744; Atwater v. Bodfish, 11 Gray (Mass.) 150 Rogers v. Powers, 204 Mass. 257,
90 N. E. 514; Kieffer v. Imhoff, i'6 Pa. 438; Plimpton v. Converse, 42 Vt. 712.
In Tuttle v. Kilroa, 177 Mass.
146, 58 N. E. 682, there is apparently a dictum that there is no extinguishment of the easement of a right of way by reason of the acquisition, by the owner of the dominant tenement, of the fee simple in the servient tenement, if there is a like right of way outstanding in another. This is, it is submitted, most questionable.
33. Thomas v. Thomas, 2 Cromp. M. & R. 34; Dority v. Dunning, 78 Me. 381, 6 Atl. 6; Dull, Petitioner, 15 R. I. 534, 10 Atl. 484; Pearce v. Mcclenaghan, 5 Rich. Law (S. Car.) 178, 55 Am. Dec. 710.
It has been decided that the estates are not of equal duration for the purpose of causing an extinguishment of the easement, when one is a fee simple and the other a fee determinable.34 And the same principle appears to be involved in decisions that the easement is not extinguished because the legal title to both the dominant and servient tenements is vested in one person as mortgagee, under distinct mortgages falling due at different times,35 nor because an estate in fee simple in both tenements is vested in a single person, if one of these titles is wrongful, and therefore subject to defeasance.36
As above indicated, the extinguishment of the easement by one's acquisition of estates in both the dominant and servient tenements appears to be by reason of the unity of possession operating to render the easement useless, and so in the earlier authorities the unity of possession is referred to as the important consideration, without any reference to the question of the necessity of unity of seisin.37 It has been said, however, that unity of possession is insufficient to effect an extinguishment unless there is also unity of seisin,38 without any explanation being given of why unity of seisin should be regarded as necessary. Suppose A having an estate in Whiteacre for ten years only creates in favor of B
34. Rex v. Inhabitants of Hermitage, Cathew. 339.
35. Ritger v. Parker, 8 Cush. (Mass.) 145, 54 Am. Dec. 744. See Co. Litt, 313b.
36. Tyler v. Hammond, 11 Pick. (Mass.) 193; Co. Lilt. 313b.
37. Bro. Abr. Extinguishment, pl. 15; Jenkins' Centuries, p. 20, case 37; Sury v. Pigot, Poph.
166; Peers v. Lucy, 4 Mod. 364; Rex v. Inhabitants of Hermitage. Carthew. 239; Whalley v. Thompson, 1 Bos. & P. 371.
38. Thomas v. Thomas, 2 Cromp. M. & R., per Alderson, B.; editorial note, 21 Harv. Law Rev. at p. 359; 11 Halsbury's Laws of England, 283.
$ 374] Easements. 1373 an easement in Whiteacre to the extent of his ability, that is, for the balance of the ten years, and subsequently B acquires A's estate for the balance of the ten years. B then has an estate, with the right of possession for so long as the easement can endure, and the same reason would seem to exist for regarding the easement as extinguished as if he had acquired also the estate in fee simple in Whiteacre.
Not only has it been said that unity of possession without unity of seisin is insufficient to extinguish the easement, but it has even been said that unity of seisin without unity of possession is sufficient for this purpose.39 According to this view, if one who has an estate in fee simple in the dominant tenement makes a lease for years and subsequently transfers his reversion to the owner of the servient tenement, he thereby effects an extinguishment of the easement not only as against himself but also as against his lessee.39a A rule which thus operates to put property rights of one person at the mercy of others is to be accepted with same hesitation, in the absence of an overwhelming weight of authority in its favor. It is difficult indeed to understand why the highly artificial conception of seisin, as distinguished from possession, should be introduced in this connection. As above indicated, the earlier authorities, to whom the conception of seisin was most familiar, refer to unity of possession as the decisive consideration without mention of unity of seisin.
In order that unity of possession may extinguish the easement, the person in whom the union occurs must way along the same line is not impossible appears to be fully recognized in the decisions, before referred to, that the grant of land as abutting on a highway gives in effect a private right of way upon the discontinuance of the highway,45 and it is difficult to see why the establishment of a highway should in itself extinguish the private right, though it renders the assertion of such right at least temporarily unnecessary.46
39. Buckby v. Coles, 5 Taunt. 311.
39a. That the owner of the dominant tenement cannot thus effect the extinguishment of the easement as against his lessee is decided in Richardson v. Graham, 1 K. B. (1908) 439, as regards the easement of light. The decision appears, however, to be based on the terms of the Prescription Act in reference to the easement of light, rather than upon general principles applicable to all easements.
2 R. P. - 12 have an estate in severalty in each tenement.40 If he has merely a fractional interest in the dominant tenement, his co-owners are entitled to the easement irrespective of whether his share and the servient tenement become united in ownership,41 while if he has merely a fractional interest in the servient tenement, his joint right to the possession of such tenement gives him no right to utilize any part thereof for his own exclusive benefit, and consequently the utility of the easement continues as before.42 Moreover, it seems, the estates which are thus united in one person must both be beneficial in character, that is, one must not be a bare legal estate and the other equitable in character.43