[* 516] *CHAPTER V. OF LOSS OR EXTINGUISHMENT OF EASEMENTS, ETC. SECT. 1. Effect of the Unity of the two Estates. SECT. 2. SECT. 3. SECT. 4. SECT. 5. SECT. 6. SECT. 7. Effect of conveying one of two Estates in reviving former Ease ments. Of Changes in Estate affecting Rights of Easement. Of Acts of Owners of Easements affecting Rights to the same. Effect of Non-user of Easements. Effect of a License upon an Easement when executed. SECTION I. EFFECT OF THE UNITY OF THE TWO ESTATES. 1. Easements extinguished by actual or constructive release. 2. Unity of the two estates operates a release. 3. The unity must be of title and possession. 4. Such unity extinguishes the easement. 5. Ritger v. Parker. Unity in mortgage no extinguishment. 6. No extinguishment if title to one of the estates fails. 7. Hinchliffe v. Kinnoul. Effect of unity of reversions. 8. Effect of destroying the easement while the estates are united. 1. As easements may be acquired by actual or constructive grant in various forms, as has been shown, so they may be surrendered, lost, or extinguished by actual or constructive release. Among these would be a release in terms by deed by the owner of the dominant to the owner of the servient estate. It is hardly necessary to illustrate this proposition by decided cases. [ED. An instance of an indirect application of this principle occurred in a case where two tenants in common of land to which an easement was appurtenant made a partition and executed deeds of release, in each of which the grantor conveyed all his right, title, and interest in the land to the other, to have and to hold with all the privileges and appurtenances thereto belonging, so that neither the grantor nor any person under him should have any right to the premises or appurtenances, and it was held that these releases extinguished the easement.1] But there are often such relations in the ownership of the two estates as will have the same [* 517] effect as a direct release, which may require a word of explanation. Such would be the effect of a union of ownership of the two estates in one person. So, while there are various acts of ownership which serve as evidence of title to an easement, after long repetition, there are acts and omissions on the part of the owner of the dominant estate which are deemed to be evidence of the servitude upon the servient estate having been released or surrendered to the owner thereof.2 2. To give something like a classification of the modes by which easements may be lost or extinguished by acts of the owners of the two estates, the effect of the unity of these in one person will first be considered. As no one can be said to use one part of his own estate adversely to another part, the proposition is universally true, that if the owner of one of the estates, whether dominant or servient, becomes the owner of the other, the servitude which one owes to the other is merged in such ownership, and thereby extinguished. This mode of losing or extinguishing an easement is known to the French law under the name of Confusion, which they borrowed from the language of the civil law. 3. But the proposition thus far assumes that both estates become united in title and possession in one man, whereby each has alike all the incidents of a common ownership. And this might and would be true to a limited extent, if the possession only of the two estates were united in the same person. So long as such possession should continue united, the easement in favor of the one and the servitude upon the other would be suspended, inasmuch as the occupant has a paramount right to enjoy them in such manner as he pleases. But when such possession terminates, as, for instance, by the expiration of a term of years, or of a life for 1 [Hamilton v. Farrar, 128 Mass. 492.] 2 Pardessus, Traité des Servitudes, 411. Ibid.; 3 Burge, Col. & F. Laws, 445; D. 8, 6, 1. which the tenant may have held the estates, the incidents of easement and * servitude belonging to them at once re- [* 518] vive. The unity of title and possession of the two estates, therefore, which operates an extinguishment of an easement in the one upon or over the other, can only have that effect where the same proprietor has a permanent estate in both tenements not liable to be defeated by the performance of a condition, or the determination of a determinable fee by the happening of some event beyond his control, and where the estates cannot be again disjoined by operation of law.1 To have the unity.of title of the dominant and servient estates work an extinguishment of an easement existing between them, the ownership of both must be coextensive. Thus where one owned the servient estate in severalty, and a fractional part only of the dominant estate, the easement was not thereby extinguished.3 4. But where there is a union of an absolute title to and possession of the dominant and servient estates in the same person, it operates to extinguish any such easement absolutely and forever, for the single reason that no man can have an easement in his own land.4 5. In the case above cited of Ritger v. Parker, J. G. conveyed one of the parcels to M. G. in mortgage, in 1836, who took possession under the same to foreclose it, in 1841, and in 1842 conveyed it to Parker. The other parcel was conveyed to J. G. in 1839, who mortgaged it to M. G. in 1839, and possession to foreclose 1 Ritger v. Parker, 8 Cush. 145; Canham v. Fisk, 2 Crompt. & J. 126; Thomas v. Thomas, 2 Crompt., M. & R. 34, and reporter's note; Tyler v. Hammond, 11 Pick. 193, 220; James v. Plant, 4 Adolph. & E. 749; Hazard v. Robinson, 3 Mason, 272; Keiffer v. Imhoff, 26 Penn. St. 438, 443; Woolr. Ways, 74; Pardessus, Traité des Servitudes, 442; Manning v. Smith, 6 Conn. 289; 291; Pearce v. M'Clenaghan, 5 Rich. 178. 2 [Atlanta Mills v. Mason, 120 Mass. 244.] Ivimey v. Stocker, L. R. 1 Ch. Ap. 396; Bradley Fish Co. v. Dudley, 37 Conn. 136. 4 Hancock v. Wentworth, 5 Met. 446; Gayetty v. Bethune, 14 Mass. 53, 55; Grant v. Chase, 17 Mass. 443; Canham v. Fisk, 2 Crompt. & J. 126; Robins v. Barnes, Hob. 131; Hazard v. Robinson, 3 Mason, 272; Sury v. Pigot, Poph. 166; Packer v. Welstead, 2 Sid. 39; Keiffer v. Imhoff, 26 Penn. St. 438, 442; Lalaure, Traité des Servitudes Réelles, 63; Atwater v. Bodfish, 11 Gray, 152; Plympton v. Converse, 42 Vt. 712; [Wilder v. Wheeldon, 56 Vt. 344;] Coleman's Appeal, 62 Penn. 274; Warren v. Blake, 54 Me. 281. was taken at the same time with that under the other mortgage in 1841. The same was foreclosed by M. G. in 1844, who conveyed the estate to the plaintiff. It will be perceived that J. G. held an equity of redemption in both parcels, from 1839 to 1844, and that M. G. held mortgages upon both parcels, from 1839 to 1842, when she assigned one of them to the defendant Parker. And it [* 519] was contended that here was such a unity of title and possession as to extinguish an easement of way that had existed in favor of one parcel over the other. But the court held otherwise. So long as M. G. held them, they were both defeasible estates, and defeasible upon different conditions. One might have been redeemed and the other foreclosed, and redemption or foreclosure of either would have effected an entire separation of the two, each retaining its own incidents. And when actually foreclosed, one estate belonged to one man, and the other to another. When a mortgagor or the assignee redeems, he regains the estate just as it existed when he made the mortgage. The operation of the mortgage is defeated by force of the condition, and he takes the estate with all the incidents and benefits, and subject to the servitudes to which it was subject when the mortgage was made. And no lease, change, or incumbrance made by the mortgagee can be set up against the claims of the mortgagor. The estate is restored unchanged. So if the mortgage is foreclosed, the estate which was conditional and defeasible in its creation becomes absolute, and the incidents, privileges, and covenants attached to it, unchanged by anything which the mortgagor or any other person may have done in the mean time, remain attached to it as if the original conveyance had been absolute. M. G. then never had, at any one time, an unconditional, indefeasible interest in the then two estates. She held mortgages on both at the same time, after having entered on both for condition broken, but before foreclosure. This was not the unity required to constitute a merger. Before foreclosure, she conveyed one of the estates to the defendant. It is clear that, at the time of the foreclosure, the estates were held by different owners in fee.1 1 See Ballard v. Ballardvale Co., 5 Gray, 471; Curtis v. Francis, 9 Cush. 427, 457; Pardessus, Traité des Servitudes, 445. 6. So if the title to one of the estates fail in the hands [* 520] of the joint owner of the two, the easement of the one in the other revives upon the failure of such title.1 7. In Hinchliffe v. Kinnoul, which has already been noticed in another connection, the ancestor of Earl G. made a lease in 1728 of open and unoccupied land, which expired in 1824. Upon this parcel many houses had been built by various sub-lessees, and, by the terms of the lease, Earl G. would then have had the entire lands, houses, &c., and if, in the mean time, any easements had been acquired in favor of one of these parcels upon or over another, the same, upon such union of title and possession, would have been, at the time of such union, extinguished. The plaintiff held one of these messuages, and the defendant the adjoining one, and over this the plaintiff claimed easements of passage of a coal-shute and of a watercourse. The titles of these two messuages were as follows. Mrs. Forrester held the plaintiff's by a lease which was to have expired in 1822. In 1799 she let the same to Mrs. Hinchliffe for a term ending in 1820, with the appurtenances thereto belonging. Of course the immediate reversion of Mrs. Hinchliffe's term was in Mrs. Forrester, the remote one in Earl G. The other messuage came to Hampden by a lease in 1793, to expire in 1824, subject, as above stated, to Earl G.'s reversion, to whom all the leases would fall in, in 1824. In this state of the ownership, Earl G., in 1819, let the plaintiff's messuage to him for fifty-seven years, to hold from and after 1824, the plaintiff having been in possession of the premises under an under-lessee of the original lessee for some years before 1819. And in 1822 Earl G. made a lease of the defendant's messuage to Hampden for sixty-one years, to commence in 1824, both said leases, of course, being of reversionary interests on the part of Earl G. *One question made in the case was, whether the [* 521] unity of title to both messuages in 1842 in Earl G., under whom both parties claimed, did not extinguish the right of easement which one messuage had acquired in the other? But the court held that there was no such unity of possession as would operate upon the right of easement. Earl G. 1 Tyler v. Hammond, 11 Pick. 193, 290; Pardessus, sup., 446. |