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 .
That the nature and extent of a prescriptive right are measured by the character of the user in which it originated is generally recognized,67 but the application of this rule frequently involves considerable practical difficulties. If it were applied with absolute strictness, the right acquired would frequently be of no utility whatsoever. A right of way, for instance, would, as has been judicially remarked,68 be available for use only by the people and the vehicles which have passed during the prescriptive period. But the rule is not applied with absolute strictness. "As in the case of a grant the language is to be construed in the light of the circumstances, so in the case of prescription the use is to be looked at in the same way. The nature of the right is not to be determined by the actual proved use alone, but by that in connection with the circumstances."69
There is obviously no difficulty when a right of user is asserted entirely different in its nature from the user during the prescriptive period. If, for instance, one has used another's land for purposes of passage only, he can acquire by such user no right to overflow it, and if he has used it merely for the purpose of an aqueduct he can thereby acquire no right to use it for a drain. But if one has used another's land for a drain from a house upon his land, the question whether he may build another house upon his land and discharge sewage from both the houses
67. Wright v. Moore. 38 Ala. 593, 82 Am. Dec. 731; Lawton v. Herrick, 83 Conn. 417, 76 Atl. 986; Postlethwaite v. Payne, 8 Ind. 104; Middlesex Co. v. City of Lowell, 149 Mass. 509, 21 N. B. 872; Harvey v. Illinois Cent. R. Co., Ill Miss. 835, 72 So. 723; American Bank-note Co. v. New York El. R. Co., 129 N. Y. 252. 29 N. E. 302; Tucker v.
Salem Flouring Mills Co., 13 Ore. 28, 7 Pac. 53, 15 Ore. 581, 16 Pac. 426; Elliott v. Rhett, 5 Rich. L. (S. C.) 405, 57 Am. Dec. 750; Shrewsbury v. Brown, 25 Vt. 197.
68. Cowling v. Higgenson, 4 Mees. & W. 245 per Parke, B.
69. Baldwin v. Boston & M. R. R., 181 Mass. 166, 63 N. E. 428, per Hammond. J.
70. See Cowling v. Higgenson, 4 Mees. & W. 245; Prentice v. Geiger, 74 N. Y. 341; Jones v. Crow, 32 Pa. 398.
71. Wimbledon etc. Conservators v. Dixon, 1 Ch. Div. 362: Simons v. Munch, 115 Minn. 360. 132 N. W. 321. This criterion of an increase of burden has been applied in several cases in connection with the pollution of a stream. Mclntyre Bros. v. Mcgavin, L. R. (1893) App. Cas. 268; Mississippi Mills Co. v. Smith, 69 Miss. 299, 30 Am. St. Rep. 546, 11 So. 26; Jones v.
Crow, 32 Pa. 398; Atty. Gen. v. City of Grand Rapids, 175 Mich. 503, 50 L. R. A. (N. S.) 473, 141 N. W. 890; Fansler v. City of Sedalia - (Mo.) - 176 S. W. 1102.
A prescriptive right to maintain a dam to sluice logs, a temporary use, does not, it has been held, involve a right to maintain it for permanent use in connection with a saw mill. Simons v. Munch, 115 Minn. 360, 132 N. W. 321.
72. See the thoughtful discussion in 8 Columbia Law Review at p. 402.
Of the user may be such that the landowner could have seen that a mere change in details of the user73 would increase the burden upon his land, and he is accordingly to be regarded as having acquiesced in the user as thus subject to possible extension.
It would seem that a user during the prescriptive period which actually burdens but a limited portion of space on another's land gives a right to burden that space only. For instance, a user of land for purposes of passage to a certain width would not, it is conceived, give a prescriptive right to use land to any greater width74 and, by the decided weight of authority, the flowage of a certain amount of land for the prescriptive period gives no right, by tightening the dam. or otherwise, to flow a greater amount of land.75 So it has been decided that the user of a wall as a party
73. In Bremer v. Manhattan R. Co., 191 N. Y. 333, 334, 84 N. E. 59, it was held that a prescriptive right to maintain and operate an elevated railway track included the right to make a change in the motive power and to increase the length of the trains, since "the operation and length of the trains were mere details of the right, not substantial elements or limitations of it."
74. See District of Columbia v. Robinson, 14 App. Cas. D. C. 512; Dymeak v. Christ Jensen, 279 111. 242, 116 N. E. 654.
75. Wright v. Moore, 38 Ala. 593, 82 Am. Dec. 731; Savannah etc. Canal Co. v. Bourquin 51 Ga. 378; Iowa Power Co. v. Hoover, 166 Iowa, 415, 147 N. W. 858; Whitehair v. Brown, 80 Kan. 297, 18 Ann. Cas. 216, 102 Pac. 783, and note; Turner v. Hart, 71 Mich. 128, 15 Am. St. Rep. 243; Cook v. Beard, 108 Mich. 17, 65
N. W. 518; Reason v. Peters, 148 Mich. 532, 112 N .W. 117; Gilford v. Winnipeseogee Lake Co., 52 N. H. 262; Griffin v. Bartlett, 55 N. H. 119; Carlisle v. Cooper, 21 N. J. Eq. 571; Horner v. Stillwell, 35 N. J. L. 307; Stiles v. Hooker, 7 Cow. (N. Y.) 266; Russell v. Scott, 9 Cow. (N. Y.) 279; Morris v. Commander, 3 Ired L. (25 N. C.) 510; Tucker v. Salem Flouring Mills Co., 13 Ore. 28, 7 Pac. 53; Mertz v. Dorney, 25 Pa. 519; Sabine v. Johns, 35 Wis. 183.
But in Maine & Massachusetts the height of the dam is the criterion, the person asserting the easement having a right to maintain the dam to the height to which it was maintained during the prescriptive period, irrespective of changes In the extent of the flowage by reason of the state of repair of the dam, the extent of the use of the water, the amount of water in tho wall to a certain height gives no right to use it as such to a greater height.76
The question of the user which may be made of a prescriptive right of way has been the subject of a number of adjudications. That the way was used for a single purpose will ordinarily support a right of way for that purpose only,77 but that the way was used for all purposes for which it was desired to use it justifies, it has been held, a finding of a right of way for all purposes for which it might reasonably be desired for the use of the dominant tenement while substantially in the same condition.78 "But if the condition and character of the dominant estate are substantially altered - as in the case of a way to carry off wood from wild land, which is afterwards cultivated and built upon, or of a way for agricultural purposes to a farm, which is afterwards turned into a manufactory or divided into building lots - the right of way cannot be used for new purposes, required by the altered condition of the property, and imposing a greater burden upon the servient estate."79 It has been held however that there was no such substantial alteration of the stream, or other causes. Voter v. Hobbs, 69 Me. 19; Cowell v. Thayer, 5 Mete. (Mass.) 253, 38 Am. Dec. 400; Jackson v. Harrington, 2 Allen (Mass.) 242; Daniels v. Citizen Sav. Inst. 127, Mass. 534. Occasionally, without stating that the height of the dam is the criterion, the courts refer to the right to increase the height of the dam as the question at issue. See Cobia v. Ellis, 149 Ala. 108, 42 So. 751; Haigh v. Lenfesty, 239 111. 227, 87 N. E. 962; Iowa Power Co. v. Hoover, 166 Iowa, 415, 147 N. W. 858; Mcgeorge v. Hoffman, 133 Pa. St. 381, 19 Atl. 431; Mc-innis v. Day Lumber Co., 102 Wash. 38, 172 Pac. 844.