16. There are rights in respect to fences which the owners of lands may acquire or be subject to by prescription, whereby one may become liable to support and maintain a division fence between the two parcels of land, or a particular part thereof. And this is regarded as an easement in favor of the one estate, and a servitude upon the other.1 And it may be stated, in general terms, that an easement to maintain a fence between two parcels may be attached to one in favor of another, if there be sufficient evidence of an original agreement to that effect between the owners.2 But while there would probably be little diversity in applying the doctrine of prescription as to fences when once established, it is not clear that all courts would agree as to what amounted to such a prescription. Thus it seems, from the cases stated in Viner, that prescription arises in cases where one of two adjoining owners, and those under whom he claims, "have used to make it (the fence) time out of mind," or where the fence between two closes has time out of mind been repaired by the tenant of one of them.3 In Rust v. Low, supra, the court recognize the doctrine of prescription in respect to maintaining fences, and speak of ancient assignments of fence-viewers, and also ancient agreements made by the parties which may have once existed and are now lost by lapse of time, as among the grounds upon which such prescription may rest. And in Binney v. Hull, supra, the court rely upon the fact as establishing prescription, that the party and his ancestors had maintained the fence in question for fifty-six years, at the commencement of which period it was an old fence, carrying back the obligation beyond the time of memory. In Adams v. Van Alstyne, the court hold that there may be a valid prescription in such cases. "Nor do I doubt," says the judge, "that when such a prescription is established, it fastens itself upon the land charged with the burden and in favor of the tenements benefited by it. It is the usual case of a servitude in lands, the law concerning which 1 Star v. Rookesby, Salk. 335; Boyle v. Tamlyn, 6 Barnew. & C. 329; Rust v. Low, 6 Mass. 90; Dyer, 295 b, pl. 19; Heath v. Ricker, 2 Maine, 72; Sury v. Pigot, Poph. 166; 2 Dane, Abr. 658, 660; Binney v. Hull, 5 Pick. 503, 505; Thayer v. Arnold, 4 Metc. 589. 2 Barber v. Whiteley, 34 L. J. N. s. Q. B. 212. 3 Viner Ab. Fences, E. p. 164, 166; 2 Dane, Abr. 660. has been adopted by the common law from the civil law, and every part of the premises charged with the burden called the servient tenement, is as much bound as the whole of the original premises were, and every part of the dominant tenement is entitled to claim the benefit of the charge against the premises bound." But under the facts of that case, the prescription was not established. The facts were, that from time immemorial there had been a fence between the farms of L. and H., the western half had been supported by H. and his predecessors, and the eastern half by L. and his predecessors. Upon the death of H., his farm was divided between his two heirs, the west half going to one and the east to the other. The plaintiff claimed under L., and the defendant under one of those heirs, and the question was if the successors of L. and H. were bound, by prescription, to maintain the parts of the fence which their predecessors had done. But the court held that, as each of the original proprietors was bound to maintain half of the division fence, their acts in so doing were to be regarded as having been done by mutual arrangement and not under any adverse claim, nor any acquiescence by either in any encroachment by the other, and when new owners came into possession of one of the farms, a new arrangement or division became necessary, since there was no ground of prescription of grant or covenant that the particular half of the fence should be perpetually supported by either of the adjacent owners.1 A similar doctrine was maintained by the court of Connecticut, as to the effect to be given to a long-continued custom or usage of two adjacent proprietors as to keeping a division fence between their lands in repair. If done by mutual agreement, it does not run with the land like a covenant to bind third parties who neither knew nor concurred in the same. It does not sustain a prescription.2 But if a grantor, in terms, when granting land by deed, covenant for himself, his heirs and assigns, to fence the premises, it would be a covenant which runs with the estate, and binds successive owners.3 Where one is bound to build and maintain a fence between his Adams v. Van Alstyne, 25 N. Y. 232, 237. Wright v. Wright, 21 Conn. 242. 3 Easter v. L. M. R.R., 14 Ohio St. 48. own and an adjoining lot of land, he may place one-half of it, if of reasonable dimensions, upon his neighbor's land.1 At common law, whenever there was a prescription to fence, it was enforced by a writ of curia claudenda, sued out by him in whose favor it existed, against him who was charged with the support of such fence, in which he could recover damages for his failure to make or maintain the same. But when bound by prescription to fence his close, the owner was not required to do this against any cattle but those which were rightfully in the adjoining close.2 And in this connection the case of Rose v. Bunn may be referred to, where it was held that, if one grant another land, reserving the right of pasturage upon the land, and afterwards the grantee cultivates any part of it for the growth of a crop of grain, it is incumbent upon the one who sows the grain to protect his crop by fences against the cattle of the one who owns the right of pasturage.3 [* 515] * 17. Rights of burial in churchyards, and pew rights in churches, although acquired by deed of a particular lot, or pew, are only easements in land belonging to the religious society which owns the church and churchyard. It is an easement in, not a title to, a freehold, and is to be understood as granted and taken subject, with compensation of course, to such changes as the altered circumstances of the congregation or the neighborhood may render necessary. In all these cases supposed, the general property in the house and land is in some society or body politic, and the doctrine as to burial rights does not apply to cases where the grave is in a separate independent cemetery.* And yet the interest of a pew-holder is of such a character that he may have trespass qu. cl. against any one who shall enter the same against the consent of the owner, on any of those occasions 1 Newell v. Hill, 2 Metc. 180. 2 Rust v. Lowe, supra; 2 Dane, Abr. 658, 660. 3 Rose v. Bunn, 21 N. Y. 279. The subject of fences is also regulated by statute in England, and in the several States of this country; but for obvious reasons these, as well as the cases arising under them, have been purposely omitted in this work. Richards v. Dutch Church, 32 Barb. 42; Gay v. Baker, 17 Mass. 435; Daniel v. Wood, 1 Pick. 102; Bryan v. Whistler, 8 Barnew. & C. 288; Downey v. Dee, Cro. Jac. 605. for which pews are designed to be used. But this may probably be referred to the character of the property in them which has been given by the statutes of the State in which the question arose.1 It may be stated in general terms, that the right of pew-owners in churches is an easement only, consisting of a right to use and enjoy them for special purposes.2 1 Jackson v. Rounseville, 5 Metc. 127. 2 Hinde v. Charlton, L. R. 2 C. P. 104. [604] [* 516] *CHAPTER V. OF LOSS OR EXTINGUISHMENT OF EASEMENTS, ETC.. Effect of conveying one of two Estates in reviving former Ease SECT. 2. SECT. 3. SECT. 4. SECT. 5. SECT. 6. SECT. 7. 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. 7. Hinchliffe v. Kinnoul. 8. Effect of destroying the Effect of unity of reversions. 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. But there are often such relations in the ownership of the two [* 517] estates as will have the same 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, |