But if the way be over or across the watercourse, he has no right so to repair or maintain it as to obstruct the flow of the stream, and if he does, to the injury of the land above, he would be liable in damages.1

* 2. Where one granted a lot of land having a well upon [* 565] it, and, in his deed, reserved to himself, and to his heirs and assigns who might occupy a certain dwelling-house, "the right to take water freely from the well, &c., or from any other well which may be sunk there," it was held that the grantee was not bound to keep the well in repair, or to preserve its existence.2

But if the owner of the servient estate covenant to keep the easement in repair, he is not exonerated from the burden by the dominant one having actually repaired it himself, in one case for forty years.3

3. The grant of a right to build a dam and flow the grantor's land carries the right to erect and repair the dam and cleanse the pond, as occasion may require.1

The grantee of a way is the party who is to make as well as repair it.5

So where one granted to another the right to enjoy a certain strip of land, to be used as a way in connection with certain houses from a public highway, it was held to pass a right to lay down a flagstone, within this space, in front of one of those houses, for the accommodation thereof, it being a suitable mode of repairing the same, so that it should not be wet and dirty.6

But where one had acquired a prescriptive right of way, by long-continued use and enjoyment, it was held that he did not thereby acquire a right to dig ditches in the servient

estate for the purpose of repairing the way, unless he [* 566]

5 C. B. 568; Prescott v. Williams, 5 Met. 429; Doane v. Badger, 12 Mass. 65, 70; Jones v. Percival, 5 Pick. 485; Miller v. Bristol, 12 Pick. 550; 2 Fournel, Traité du Voisinage, 358; Liford's Case, 11 Rep. 46, 52; Bullard v. Harrison, 4 Maule & S. 387, 393; Rider v. Smith, 3 T. R. 766; Com. Dig., Chimin, D. 6; Ayl. Pand. 307; Williams v. Safford, 7 Barb. 309; Robins v. Jones, C. B. 26 Law Rep. 291; Gillis v. Nelson, 16 La. An. 279. See 24 Iowa, 68.

1 Haynes v. Burlington, 38 Vt. 360.

2 Ballard v. Butler, 30 Me. 94.

8 Holmes v. Buckley, 1 Eq. Cas. Abr. 27. Frailey v. Waters, .7 Penn. St. 221.

5 Osborn v. Wise, 7 Carr. & P. 761. Gerrard v. Cooke, 2 Bos. & P. N. R. 109.

had gained this right by use and enjoyment, as he had that of the way itself.1

M. Fournel states the French law upon the subject of the right to do acts upon the freehold of the servient tenement, by the way of repairing a way or an aqueduct, as being much more restricted than what might be done in the original construction of such way. He quotes the civil law: Aliud est enim reficere, longe aliud facere.2

4. In Liford's Case it is said: "The law giveth power to him who ought to repair a bridge to enter into the land, and to him who hath a conduit within the land of another to enter the land and mend it when cause requireth, as it was resolved in 9 Ed. IV. 35,” where it was held that the right to scour and amend a trench was incident to a grant of a right to dig it in another's land for the purpose of drawing water through the same; and the same doctrine is sustained in Peter v. Daniel.4

5. The law upon the subject is thus stated by Mr. Burge: 5 "With the exception of the servitude onus ferendi, where the owner of the servient tenement is bound to repair that which is used for the support, the owner of the dominant tenement is bound to keep in repair the way or other means by which he uses the servitude. Thus the person entitled to a servitude of drain must at his own expense cleanse and repair it. So the dominant of a road must keep it in order for his own use, and any stipulation to the contrary imposes a personal obligation superadded to the ser

vitude. The owner of the dominant has the right, as a [* 567] part of the * servitude, to perform at his own expense all such works as are necessary for preserving and making use of the servitude, and so he is entitled to have access to make the necessary repairs. The owner of the servient estate can do nothing to diminish the use or convenience of the servitude to the owner of the dominant. Nor can the owner of the dominant enlarge his use so as to increase the burden on the servient, unless, 1 Capers v. M'Kee, 1 Strobh. 164.

2 2 Fournel, Traité du Voisinage, 362; 5 Duranton, Cours de Droit Français, 626; D. 43, 19, 3, 15.

Liford's Case, 11 Rep. 46, 52. This case is cited in Roberts v. Roberts, 55 N. Y. 277.

4 Peter v. Daniel, 5 C. B. 568; 3 Toullier, Droit Civil Français, 508; D. 8, 4, 11, 1.

53 Burge, Col. & F. Law, 443.

in so far as such change of use may be necessary in order to make the servitude effectual."

Though for the doctrine above stated Mr. Burge has chiefly cited authorities from the civil and Scotch law, it is apprehended that the rules here laid down are equally established as a part of the common law. One or two citations may be added to those above given, sustaining the views expressed by him. Thus Duranton, after saying that the owner of the dominant estate may do whatever is necessary to his enjoying a servitude upon another's tenement, adds, that this must be at his own charge, and not at that of the owner of the servient estate, since it is of the very nature of a servitude that he who has the right to it is the one to act, while the other is only to suffer and not to do.1

And, by the Scotch law, the servitude onus ferendi does not, as it did by the civil law, impose upon the servient estate the burden of maintaining the wall at his charge.2

6. Where the easement is of a character that a want of repair injuriously affects the owner of the servient land, it becomes not. only the right but the duty of the owner of the easement to cause all necessary repairs to be made. As, for instance, if one has an aqueduct by pipes or a gutter across the land of another, he is bound to keep these in repair, so that the owner of the land shall not be damaged by the want of such repair.3

*7. For the law relative to the repairs of party walls [* 568] reference may be had to a former part of the work in which the subject is treated of.

8. It may be observed, as a well-settled rule of the civil law, which would doubtless be regarded as a part of the common law, that, if a house, a wall, a water-spout, or anything of that kind with which or by which a servitude exists or is enjoyed, is destroyed, and the same is afterwards, within the period of prescription, reconstructed or restored, whatever may have been the servitudes connected therewith, they are, by such restoration, revived.5

1 5 Duranton, Cours de Droit Français, 619, 620; 3 Toullier, Droit Civil Français, 501; Ayl. Pand. 307, 309; Gillis v. Nelson, 16 La. An. 275. 23 Burge, Col. & F. Law, 404.

Egremont v. Pulman, Mood. & M. 404; Bell v. Twentyman, 1 Q. B. 766.
Ante, chap. 4, sect. 3, pp. *459, *472.

53 Toullier, Droit Civil Français, 522; D. 8, 2, 20,

2.

SECTION II.

REMEDY AT LAW. FOR INJURIES TO EASEMENTS.

1. Action lies for an injury to a right, though no damage.
1a. When a cause of action has arisen.

2. Owner of easement not affected by suit between others.

3. Distinction in remedy for injury to private and public easement.
4. Action for injury to easement, Case and not Trespass.

5. When actions for such injury are local.

6. Any one in possession may have the action.

7. Right of easement not triable in ejectment.

8. Right of easement no bar to a real action.

9. When one liable for continuing a nuisance.

10. Norton v. Volentine. Continuing nuisance to natural easement.

11. When notice necessary to sustain action for nuisance.

12. After easement destroyed, alienee of the estate not liable.

13. Lessor liable for nuisance on the demised estate.

14. Grantor with warranty, when liable for nuisance.

15. One who erects nuisance on a third person's land liable.
16. Of justifying under a right of easement for a trespass.

1. ALTHOUGH it is not proposed to dwell at any length upon the forms of pleading or rules of evidence applicable to an alleged violation of a right of easement, there seems to be an ob[* 569] vious propriety in treating briefly of the remedy * which the law has provided to secure to one the enjoyment of such a right, or an adequate redress for being unlawfully deprived thereof. These remedies are either in equity or at common law, and may be considered separately.

But it is not true, that every one who sustains loss or injury by the act of a third party in reference to what he claims as an easement, can maintain an action therefor, in his own name. Thus where a canal company granted to one an exclusive right to use boats upon their canal, it was held that he could not bring an action in his own name against a third party who put boats upon the canal and used them there, for though the grant was perfectly good as between the plaintiff and the canal company, it did not establish such an estate or interest in the plaintiff that the act of the defendant in putting boats upon the canal amounted to an eviction, the interest of the plaintiff being unconnected with the use or enjoyment of land.1

1 Hill v. Tupper, 2 H. & Colt. 121, 127; Acroyd v. Smith, 10 C. B. 164; Stockport Water Works v. Potter, 3 H. & Colt. 300, 325.

Where the owner of a well gave another a license to use it, and a stranger fouled the water in the well so as to destroy its use, it was held that the licensee could not maintain an action against such stranger for thus fouling the water, even if he could have an action against any one for disturbing him in the enjoyment of the well.1

But where the owner of a mill standing upon his own land had a license from the owner of the land between his mill-wheel and the stream below to discharge the water through a race-way from his wheel into the stream, and the owner of land still lower down erected a dam across the stream which flowed back the water thereof into this race-way and obstructed the mill-owner's wheel, it was held he might have an action against the one building the dam for causing such obstruction.2

Though it is, generally, true that, in order to maintain an action at law for the recovery of damages, something amounting to an actual loss or injury must be shown to have been sustained on the part of the plaintiff, it is now settled, as an elementary principle, that one having an incorporeal hereditament, like an easement, may maintain an action to vindicate his claim to the same, if he can show a violation of his right to enjoy it, although he may be unable to show any actual damage or loss occasioned thereby. The law, in order to protect him from a repetition of such acts as might, in time, defeat or impair his right, will presume damages to have resulted therefrom, and, by a rendition of a judgment therefor, establish his right and protect it from interruption.3 A writer in the Law Magazine and Review examines two or three leading English decisions upon the subject of when an action must, and when it may be maintained for an injury to a right, and whether it must be brought when the act is done which causes the damage, or it may be delayed until the damage has actually been. caused. This bears, too, upon the question of the action being barred by the statute of limitations.

1 Ottawas Gas Light v. Thompson, 39 Ill. 601. See Agawam Canal Co. v. Edwards, 36 Conn. 476.

2 Case v. Weber, 2 Ind. 111.

Ante, p. *229, and cases cited; [Blodgett v. Stone, 60 N. H. 167; Creighton v. Evans, 53 Cal. 55.] See also Ashby v. White, 2 Lord Raym. 938; Woodman v. Tufts, 9 N. H. 88; Northam v. Hurley, 1 Ellis & B. 665, 673; Tillotson v. Smith, 32 N. H. 90, where defendant turned a new stream into an old one; 1 Smith L. Cas., 5th Am. ed. 105 et seq.; Company v. Goodale, 46 N. H. 56.