becomes dry, I should not only lose the right of drawing water, I should lose the right of passing over the neighboring tenement, because the right of passage was only accessory to the right of drawing water, and that which is accessory cannot subsist when the principal right is lost. But servitudes revive when the estates are so restored that the servitude can be again used, unless a space of time shall have then elapsed sufficient to raise a presumption that such servitude has been extinguished. Thus when one reconstructs a party wall, or a house which has been demolished or destroyed by fire, the servitudes both active and passive are continued in respect to the new wall or new house, under certain limitations similar to that above stated.1 SECTION IV. OF ACTS OF OWNERS OF EASEMENTS AFFECTING RIGHTS TO THE SAME. 1. Acts to have effect upon easements must be so intended. 2. No parol release affects a right of easement. 3. Abusing an easement does not destroy the right. 4. Effect of wrongfully increasing the extent of an easement. 5. One may not alter the condition of dominant or servient estate. 6. Luttrell's Case. Change of mode of enjoyment. 7. If one change lights, the other may stop them. 8. Light limited to the prescriptive quantity enjoyed. 9. Enlarging a window does not destroy the original right. 10. Same subject. *1. IN considering what acts of the owner of an ease- [* 537] ment, or of the estate in or over which it exists, will operate to extinguish the same, it may be somewhat difficult to classify them. But it may be stated, generally, that the act must be such as indicates an intention to extinguish the easement, or it must be something which enhances the burden upon the servient estate, to the injury of the same, against the consent of the owner thereof. 2. A mere parol release of an easement, or an agreement not to exercise the same, would of itself be of no avail.2 13 Toullier, Droit Civil Français, 522. 2 Dyer v. Sanford, 9 Met. 395; [Erb v. Brown, 69 Penn. St. 216;] Liggins v. Inge, 7 Bing. 682. 3. Nor does one having an easement in another's land lose it by merely abusing it, or using it for purposes for which he has no right to exercise it. Thus if one having a right of way for certain purposes across another's land use it for other and different purposes, he would, as to such use, be a trespasser. But it would not justify the owner in stopping the way altogether.1 4. But if, in the first place, the owner of the easement materially change the condition of the estate to which the same belongs, so as thereby to increase the burden of the servitude upon the servient estate, and the enjoyment of the excess cannot be separated from that of the original right, it may operate to destroy or extinguish the right of easement altogether.2 This subject has been somewhat considered in its relation to easements of water, and it may be necessary to repeat some things that are there said in order to apply them to the general doctrine of easements. 5. The language of Jervis, C. J., in Wood v. Copper Miners' "In the case of an easement, you cannot alter the condition of either the dominant or servient tenement." 3 is : Co., [* 538] *And where one had an easement of a drain which the land-owner was bound to keep in repair, and he wrongfully increased the quantity of water which he had a right to discharge through the same, he thereby lost the right to require the other party to keep the same cleansed for his accommodation.1 6. One of the leading cases upon this subject is Luttrell's. In that case the plaintiff, having two old fulling-mills, tore them down and erected two corn-mills upon the same privilege, and the question was whether by such a change the owner lost the prescriptive right to the use of the water in the manner in which he had enjoyed it, in respect to his former mills. Various cases are referred to in the discussion of the point raised, illustrating acts that will and such as will not operate to extinguish an existing easement. It was held that the change did not affect the prescriptive right, "provided always that no prejudice may thereby arise either by diverting or stopping of the water, as it was before." "So if a man have estovers, either by grant or prescription, to 1 Mendell v. Delano, 7 Met. 176. 2 Jones v. Tapling, 11 C. B. N. s. 283. Wood v. Copper Miners' Co., 14 C. B. 428, 446. Sharpe v. Hancock, 7 Mann. & G. 354. his house, although he alter the rooms and chambers of his house, as to make a parlor where it was the hall, or the hall where the parlor was, and the like alterations of qualities, and not of the house itself, and without making new chimneys, by which no prejudice doth accrue to the owner of the wood, it is not destroying of the prescription. And although he build new chimneys or maketh a new addition to his old house, by that he shall not lose his prescription, but he cannot imply or spend any of the estovers in the new chimneys, or in the part newly added. The same law of conduits and water-pipes and the like." It was held, in this case, that the alteration being of the quality, and not of the substance of the tenement, and it being without any prejudice in the watercourse to the owner thereof, did not affect [* 539] the prescriptive right belonging to the mill.1 In Luttrell's Case, the court refer to the case of an easement of light belonging to a house, the owner of which changes it. The cases upon this point will be found to be numerous, and in respect to some of them a difficulty exists in drawing a precise and definite rule which may apply to other cases. Thus it is said in Luttrell's Case: "So if a man have an old window to his hall, and afterwards. he turn the hall to a parlor or any other use, yet it is not lawful for his neighbor to stop it, for he shall prescribe to have the light in such part of his house." 2 7. In accordance with what has been stated, it was held in Garritt v. Sharp, that if one, having an easement of light over another's estate, alter his premises so that the enjoyment of the light will be more disadvantageous to the servient tenement than that which he before had, the latter may stop the same.3 8. And an easement of light cannot be carried beyond the enjoyment of access of light through the same aperture, or one of the same dimensions, and in the same position, as it had been used and enjoyed at the time when the consent or grant, which prescription implies, was given. Therefore, where one had an ancient window in his wall, and carried out the wall several feet in the 1 Luttrell's Case, 4 Rep. 86-89. See Allan v. Gomme, 11 Adolph. & E. 759; M'Donald v. Bear River Co., 13 Cal. 220; Carlisle v. Cooper, 6 C. E. Green, 595. 2 Luttrell's Case, 4 Rep. 87 a. Garritt v. Sharp, 3 Adolph. & E. 325; Jones v. Tapling, 11 C. B. N. s. 283. See post, pl. 10. form of a bow, and in it inserted three windows instead of the original one, but not occupying the same place as the former one, it was held that the change prevented his claiming for these the prescriptive right of light which belonged to the former window.1 * [*540] 9. It is, however, stated in one case to be law, that, by merely enlarging a window in one's house, he does not lose the right to enjoy the original space of access of light, though he cannot claim a right to any easement outside of such space. But the owner of the adjacent estate may obstruct all except the original extent of the aperture.2 10. The subject had been agitated and variously decided by the English courts as to the effect upon an easement of light which any one had in favor of a dwelling-house, if he were to enlarge his ancient windows, and how far an adjacent owner could, for that cause, stop any portion of this ancient light in his attempt to exercise what seems to be conceded as a right by all authorities, to stop or darken the newly enlarged portions of the windows. Among the cases involving this question were Renshaw v. Bean,3 Hutchinson v. Copestake, Binckes v. Park,5 and Jones v. Tapling, in the earlier stages of its discussion. But the question was finally settled in the House of Lords, where the doctrine laid down in the first two cases was overruled, and the irreconcilable differences of opinion between the judges in the other cases were obviated. In the final decision of the case it was held, that, inasmuch as it was doing no wrong on the part of the owner of the house to enlarge his windows, he lost, thereby, no right of enjoying his prescriptive easement of light, so that if, in attempting to stop or obstruct the enlarged capacity of these windows, the adjacent owner interfered with the extent of the ancient lights, he was a tort-feasor, and liable in damages for so doing." 1 Blanchard v. Bridges, 4 Adolph. & E. 176; Hutchinson v. Copestake, 9 C. B. N. s. 863; Cherrington v. Abney Mill, 2 Vern. 646. 2 Chandler v. Thompson, 3 Campb. 80. Renshaw v. Bean, 18 (2. B. 112. Hutchinson v. Copestake, 9 C. B. N. s. 863. 5 Binckes v. Park, 11 C. B. N. s. 324. Jones v. Tapling, 11 C. B. N. s. 283; 12 C. B. N. s. 826; ante, pl. 7. 7 Jones v. Tapling, 13 C. B. N. s. 876. And in another case it is said, "It has been held that where a party enlarges an ancient window, the owner of the adjoining land cannot obstruct any part of the light which ought to pass through the space occupied by an ancient window."1 *SECTION V. EFFECT OF ABANDONING AN EASEMENT. 1. An act of abandonment requires intent. 2. Stokoe v. Singers. Stopping light not an abandonment. 2 a. Suspending use not an abandonment. 3. Lovell v. Smith, Substituting a way not an abandonment. 4. Loss of easement of light by ceasing to occupy. Doctrine applied to ways. 5. Taylor v. Hampton. What amounts to an abandonment. 12. Difference in effect of act of God and of owner on easements. 14. Effect of removal of mill by one, and a new one by another. [* 542] 1. THE owner of an easement may destroy his right to the same by actually abandoning the right as well as the enjoyment, especially if a third party become interested in the servient estate after such act of abandonment; and it would operate [* 543] unjustly upon him if the exercise of the easement were resumed in favor of the dominant estate. It is not easy to define, in all cases, what would be such act of abandonment as would destroy a right of easement, and each case seems to be a matter for a jury to determine. But nothing short of an intention so to abandon the right would operate to that effect, unless other persons have been led by such acts to treat the servient estate as if free of the servitude, and the same could not be resumed without doing an injury to their rights in respect to the same. And in this it is not intended to embrace questions which may arise from a mere non-user of an easement. 1 Thomas v. Thomas, 2 Cromp., M. & R. 34, 40. |