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 may be extinguished by the user of the servient tenement in a manner adverse to the exercise of the easement, for the period required to give title to land by adverse possession,86 a subject hereafter discussed.87 The mere fact, however, that the servient owner uses the land without reference to the existence of the easement, does not render his user adverse, since he may do this merely as a consequence of the failure to exercise the easement. He must in some way actively interfere with the exercise of the easement, to such an extent as to give a right of action against him for disturbance of the easement.88 Consequently, the maintenance of a
84. Welsh v. Taylor, 134 N. Y. 450, 18 L. R. A. 535, 31 N. E. 896; Oberheim v. Reeside, 116 Md. 265, 81 Atl. 590. But see Arnold v. Cornman, 50 Pa. 361.
85. Fitzpatrick v. Boston & M. R. R., 84 Me. 33, 24 Atl. 432; ante, Sec. 367, notes 12-17.
86. Wall v. United States Mining Co., 239 Fed. 90, 152 C. C. A. 140; Jesse French Piano & Organ Co. v. Forbes, 129 Ala. 471, 87 Am. St. Rep. 71, 29 So. 683; Louisville & N. R. Co. v. Quinn, 94 Ky. 310, 22 S. W. 221; Baltimore, City of, v. Canton Co. of Baltimore, 124 Md. 620, 93 Atl. 144; Smith v. Langewald, 140 Mass. 205, 4 N. E. 571; Burnham v. Mahoney, 222 Mass. 524, 111
N. E. 396; Dill v. Board of Education of City of Camden, 47 N. J. Eq. 421, 10 L. R. A. 276, 20 Atl. 739; Woodruff v. Paddock, 130 N. Y. 618, 29 N. E. 1021; State v. Suttle, 115 N. C. 784, 20 S. E. 725; Hoffman v. Dorris, 83 Ore. 625, 163 Pac. 972; Spackman v. Steidel, 88 Pa. St. 453; Jessop v. Borough of Kittaning, 225 Pa. St. 589, 74 Atl. 554; Bentley v. Root, 19 R. I. 205, 32 Atl. 918; Bowen v. Team, 6 Rich. Law (S. C.) 298, 60 Am. Dec. 127; City of Galveston v. Williams, 69 Tex. 449, 6 S. W. 860.
87. Post, Sec.Sec. 500-513.
88. Edgerton v. Mcmullan, 55 Kan. 90, 39 Pac. 1021; Smith v. Langewald, 140 Mass. 205, 4 N.
Gate across a way would not usually involve an adverse user of the land, it not being such as to give a right of action.89 A mere notice by the owner of the land to the person having the easement, demanding that the latter cease to make use of the land, and in effect denying the existence of the easement, does not constitute an actionable obstruction thereof,89a and consequently the continuance of such denial for the statutory period, if unattended by any actual interference with the exer-cise of the easement, will not affect the existence of of the easement.
The adverse user may be, not only by the owner of the servient tenement, but also by another person,90 and such other person may be one who has also an easement in the same land.91 That is, if there is adverse possession sufficient to divest a fee simple title to land, it will also operate to extinguish an easement in such land, without reference to whether the adverse possessor previously had himself an estate or an easement in the land.