tive 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 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 enjoy- ment of access of light through the same aperture, or one of the same dimensions, and in the same position, as it had been used 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. 3 Garritt v. Sharp, 3 Adolph. & E. 325; Jones v. Tapling, 11 C. B. N. s. 283. See post, pl. 10. 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 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 two first 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 1 Blanchard v. Bridges, 4 Adolph. & E. 176; Hutchinson v. Copestake, 9 C. B. N. s. 863; Cherrington v. Abney Mil', 2 Vern. 646. 2 Chandler v. Thompson, 3 Campb. 80. 3 Renshaw v. Bean, 18 Q. 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. owner interfered with the extent of the ancient lights, he was a tort-feasor, and liable in damages for so doing.1 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." 2 *SECTION V. EFFECT OF ABANDONING AN EASEMENT. 1. An act of abandonment requires intent. 2. Stokoe v. Singers. Stopping light not an abandonment. 2a. 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. 5. Taylor v. Hampton. What amounts to an abandonment. 7. Partridge v. Gilbert. Stopping a way defeating the right. 10. Changing wheel of a mill may affect the easement. 11. Change of premises not affecting natural easements. 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 1 Jones v. Tapling, 13 C. B. n. s. 876. 2 Thomas v. Thomas, 2 Cromp., M. & R. 34, 40. not intended to embrace questions which may arise from a mere non-user of an easement. 2. The case of Stokoe v. Singers (in 1857) presents several of the points above referred to. In that case there was, in 1837, an ancient warehouse with windows on both sides. In that year the owner blocked up the windows on one side of the house, on the inside thereof, with rubble and plaster. The bars remained on the outside, so that one there could see that there had been windows there. The windows remained in this state till 1856. The defendant, having become the owner of the land next to the side of the warehouse on which the windows had thus been stopped, was preparing to build a house thereon which would effectually darken the windows, and actually erected a board on his own land which stopped them, and for this an action was brought before the twenty years expired from the stopping of the windows by the plaintiff in 1837. The judge who tried the case instructed the jury that the right to light and air "might be lost by abandonment, and that closing the windows, with the intention of never opening them again, would be an abandonment destroying the right, but that closing them for a temporary purpose would not be so. . . . Though the person entitled to the right might not really have abandoned his right, yet if he manifested such an appearance of having abandoned it as to induce the owner of the adjoining land to alter his [544] position, in the reasonable belief that the right was aban doned, there would be a preclusion, as against him, from claiming the right." He left it to the jury, whether they believed that the plaintiff's predecessor blocked up the windows with the intention of abandoning them forever, and told them, unless he did, the right was not gone. In the course of the discussion of the case, Earle, J., says: "In Moore v. Rawson it seems to be said, that an intention to abandon it permanently destroys it, unless a contrary intention be manifested within a reasonable time, which is not defined. I should feel inclined to say, that the intention permanently to abandon it would destroy it as soon as it was communicated to the owners of the servient tenement, without lapse of time." Lord Campbell, C. J.: "I doubt whether the communication of that intention destroys the right until the communication is. acted upon. Then it certainly does." The final judgment by Earle, J., was: "Taking the whole summing up together, it seems to us the true points were left by the judge to the jury. We con sider the jury to have found that the plaintiff's predecessor did not so close up his lights as to lead the defendant to incur expense or loss, on the reasonable belief that they had been permanently abandoned, nor so as to manifest an intention of permanently abandoning the right of using them." 1 In Perkins v. Dunham the same rule was applied as in the above case, that the question of abandonment was one for the jury.2 2 a. The above cases have been confirmed by the later one of Cook v. Mayor, &c., where the plaintiff had a door in the rear of his house, which opened upon a lane. He bricked it up, leaving the original jambs of the door as they were. It remained thus closed for over thirty years, when he opened it again. Four years after this the defendant began to build a house so as to obstruct a passage-way through the lane, on the ground that the plaintiff had lost his easement of way by abandoning it. The court held that it was a question of fact to be determined by the surrounding circumstances, whether the act amounted to an abandonment or was intended as such. It was held in this case not to be an abandonment, and not only that the plaintiff might have an injunction for the obstruction of a private way, but that if it had been a public way the plaintiff might also have had an injunction because of the private injury he thereby sustained.3 The court say in another case that a mere suspension of the exercise of a right is not sufficient to prove an intention to abandon it. But if the suspense be long continued, it may be necessary for the party claiming it to show that some indication was given during the period in which it was not used of the owner's intention to preserve it. The question of abandonment is one of intention, depending upon the facts of the particular case. But time is not a necessary element in a question of abandonment. A cesser to use, accompanied by an act clearly indicating an intention to abandon the right, would have the same effect as a release, without reference to time.4 3. In Lovell v. Smith there was an attempt to establish an abandonment of a way under the following facts. The owner of a right of way across the land of another made a parol agreement Stokoe v. Singers, 8 Ellis & B. 31-39. 2 Perkins v. Dunham, 3 Strobh. 224. 3 Cook v. Mayor, &c., L. R. 6 Eq. Cas. 177. 4 Crossley v. Lightowler, L. R. 2 Ch. Ap. 478. |