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In the first place it must be taken, according to established rules of the law, that the run of such a canal through the land of another, for the time stated, is evidence of an antecedent grant from the owner of the land to the owner of the mill, to construct and keep such a canal, and to make the beneficial use of it for which it was obviously intended.

It must be also taken as an inference of law, in the absence of a grant or contract, that the party who enjoys the benefit of the easement is to keep it in repair. Taylor v. Whitehead, 2 Doug. 744. When the use of a thing is granted, everything is granted by which it may be enjoyed. Pomfret v. Ricroft, 1 Wms. Saund. 323, and note 6. It follows as a necessary consequence, that the non-appearing grant carried with it to the grantee the right to do all necessary and proper acts to keep the raceway in a condition fit for the purposes for which it was intended. If it passes through the grantor's land, it carries an implied authority and license to enter upon the land to examine and clear the canal in a reasonable and proper manner, and of what is reasonable, the usual and customary mode is good evidence.

As to placing the materials taken from the bed of the stream, on the adjoining bank, the right and the duty to do so may depend upon circumstances. If the canal is walled up, and the stones have fallen in it would seem to be the right and the duty of the mill-owner, in removing the stones from the bed of the raceway, to replace them on the wall of the ditch. If the material be soil, which has fallen from the adjoin ing bank, and which may be useful or beneficial to the owner of the land, for the purpose of enriching the soil or otherwise, it would be the duty of the mill-owner to place it on the bank for his use. But if it material not useful or beneficial, it would be the duty of the mill-owner to remove it off the land in a reasonable time, and in a manner least prejudicial to the owner of the land.

We consider that this rule would not apply to a case, where the millowner owns the land upon either side of the mill-race; there he may make use of his own land, and no grant from the owner will be presumed, being not necessary to the use of his mill.

Nor will it apply to a case, where the rights of the parties in this regard, are regulated by any express grant or contract.

Nor will it apply to cases, where another and different mode of keeping such raceway clear of obstruction, has for a long time been used and practised.

We consider the incidental right of entering to keep the race clear of obstructions where it passes another's land, to arise from the principle of presunied grant, and the terms, limitations and extent of such grant, must be determined from the obvious purposes for which the easement is designed, and to which it is adapted, and upon the manner in which it has been in fact used in past time, if any such use has been shown.

But we do not consider it necessary for the defendant to show actual previous entries and clearings, to establish the right, because no such

clearing may have been necessary, within time of memory. But in the absence of such instances of actual entry and clearing, the obvious necessity and fitness of doing so, in order to enjoy the principal right granted, must be proved, from which a grant of the incidental privilege may be inferred.

Motion for a new trial overruled.

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PIERCE v. DYER.
SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1872.

[Reported 109 Mass. 374.] Tort. Writ dated September 18, 1871. The first count of the declaration alleged “ that the plaintiffs are, and were prior to the year 1870 and the defendant's tenure herein referred to, owners of a dwelling-house situated in Truro in this Commonwealth, and the defendant has been to wit, since the year 1862, owner and possessor of a house adjoining the house of the plaintiffs ; that the two tenements were built as and designed for one dwelling-house by the owner thereof; that there is no partition wall between the said two tenements or parts of said dwelling house, but they are separated only by an imaginary line passing through the rooms thereof; and that, since the defendant's ownership, the defendant, designing to harm the plaintiffs and their property, has injured and permitted to be injured and to decay his tenement, till it became ruinous, the roof, sides and interior thereof, whereby the plaintiffs' said house has been greatly damaged, and the plaintiffs have been unable to keep the same in any repair, through the wrongful acts of this defendant.” The second count was as follows: “ And the plaintiffs further say, that they and the defendant are and were owners as aforesaid of two several tenements in the town of Truro aforesaid ; that said tenements adjoin each other as aforesaid, and originally formed one dwelling-house, held by one and the same owner; and that the defendant has wrongfully suffered his house to remain out of repair and to decay, and has neglected and refused to repair the same, whereby the interior of the plaintiffs' house became exposed to storms of rain and wind, and said house suffered great damage and injury, the plaintiffs' windows and doors were shattered, the walls and ceilings damaged, the timbers of said house and flooring decayed, and said house has been otherwise greatly damaged.” The defendant demurred on the ground “ that none of the acts or omissions charged upon him in said declaratiou can be the basis of an action by the plaintiffs against him.” The Superior Court sustained the demurrer, and the plaintiffs appealed

1 The law is the same as to a natural stream. Prescott y. Williams, 5 Met. 429. Cf. Goodhart v. Hyett, 25 Ch. D. 182; Winslow v. Fuhrman, 25 Ohio St. 639.

alleged right of for the wilful neglec into decay, where that

cuegeu right of the owner of one now. Both counts, is founded

ured anged. The sand fall intf the other one-house ted

G. A. King, for the defendant.
I. Knoroles, Jr., for the plaintiffs.

Colt, J. The plaintiffs' action, in both counts, is founded on the alleged right of the owner of one part of a dwelling-house to recover damages at law for the wilful neglect of the other owner in permitting his part to become ruinous and fall into decay, whereby the plaintiff's' house was damaged. The allegation of the first count, that the defendant “ injured and permitted to be injured and to decay his tenement, till it became ruinous,” must be construed to charge wilful neglect to repair, and does not allege with sufficient distinctness any positive act of destruction or injury by the defendant. There is a wide difference between injuries which arise from negligence, and those which result from positive misfeasance; and if the latter were relied on as a ground of action, they should have been distinctly alleged. The second count plainly charges only wrongful neglect and refusal to repair.

It is to be assumed as settled, that, where two or more houses, so constructed as to require mutual support, are conveyed to different owners, or where separate portions of one dwelling become vested in different owners, a right of support, as incident to the property, passes by the conveyance to each grantee, unless excluded by the terms of the grant. Richards v. Rose, 9 Exch. 218. Easements of this description are acquired by grant; but, in construing the conveyance, it is to be presumed that the parties intended to preserve the obviously existing relations and dependencies of the estate, and all those incidents necessary to the present enjoyment of the thing granted are held to pass. There is an obligation upon each adjacent proprietor in favor of the other, beyond what is implied in the maxim which requires every one to use his own so as not to injure his neighbor. The exclusive dominion of each is so far qualified, that neither can take away the support of the other, however prudent and careful on his part the act may be.

It is argued that the right of support and shelter, to which the purchaser of one part of a dwelling thus becomes entitled, and which may not be taken away by any wrongful act of the other owner, imposes also the active duty to repair the premises and maintain the existing condition of things,

The nature, extent, and duration of the servitudes thus imposed by implication upon each adjoining estate, are not well defined in the reported cases. As a restriction upon the free use of property conveyed in fee, the right is not to be extended beyond apparent necessity. Upon principle, the extent of the burden imposed must be limited byrthe presumed intention of the parties, having regard to the relations and dependencies of the two estates, and the changes which may reasonably be expected to take place. It is to be considered that the necessity which lies at the foundation of the right arises from the existing relations of artificial structures, for the time being constituting part of the freehold, but liable to be destroyed by the action of the elements or by mere lapse of time. When thus destroyed, it is fair to presume

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that the parties intend, in the absence of any agreement, that the easement shall end with the necessity which created it. There can be boy implication no mutual easement of perpetual support, applicable to future structures.

In Sherred v. Cisco, 4 Sandf. 480, it was held that, where a party wall was destroyed by fire, the law would imply no obligation on the adjoining owners to join in rebuilding a new wall, where there was no agreement so to do, the parties being remitted to their original unqualified title up to the division line. And Denio, C. J., in speaking of that case, declares that he sees no solid distinction between a total destruction of the wall and buildings, and a state of things which would require the whole to be rebuilt from the foundation ; that in either case there is great force in saying that the mutual easements have become inapplicable. Partridge v. Gilbert, 15 N. Y. 601 ; Kerr on Injunctions, 376.

In Cheeseborough v. Green, 10 Conn. 318, which was an action on the case, brought by the owner of the lower part of a store against the owner of the upper part and roof, to recover damages for suffering the roof to be out of repair, the court held that the action could not be sustained, suggesting that the plaintiff could have relief only in a court of chancery.

The civil law recognizes the existence of an easement to compel the gwner of the servient tenement to repair, as distinguished from the ordinary easement of support; but the additional obligation to repair can only arise from express stipulation, or by proof of a prescriptive right to the easement of repair as well as support. Gale on Easements (4th ed.), 312.

The plaintiffs' declaration in this case does not allege as a fact, in direct terms, that they were entitled to have their part of the house supported or protected by the defendant's part, or that any easement of that description existed in their favor. But, giving it the most favorable construction, and assuming that title to such support can be inferred, as matter of law, from the allegations contained in it, yet, as we have seen, the obligation to repair cannot be so inferred, and without such obligation an action cannot be maintained for mere refusal and neglect. Peyton v. London, 9 B. & C. 725.

Demurrer sustained.

NOTE. - On repairs of ways, see Gerrard v. Cooke, 2 B. & P. N. S. 109; also Hamilton v. White, 5 N. Y. 9.

G. Fencing.

ANONYMOUS.

KING'S BENCH. 1440.

[Reported Year Book, 19 Hen. VI. 33, pl. 68.) A WRIT of trespass was brought. And the plaintiff declared that the defendant, with force and arms, entered into his close at F., and with his cattle broke down his hedges to his damage of ten pounds. Yelverton. You ought not to have an action, for we say, as to the coming with force and arms and the entry into the close, Not guilty. And as to the remainder of the trespass, we say that we were seised of an acre of land in the vill of B., which adjoins your close in F., and we say that we put our beasts into our lands to pasture them, and we say further that there is a hedge which is between the land of the plaintiff in which, &c., and our land aforesaid, which the plaintiff and all those whose estate he has in the same close, have been used, from time immemorial, to make and repair, and because the hedge was open and broken, and waste, our beasts entered into his close, and did the trespass, which is the same trespass for which he has brought this action. And it was held for a good plea by the whole court. Quod nota.

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STAR v. ROOKESBY.
KING's BENCH. 1710.

(Reported 1 Salk. 335.] ERROR was brought on a judgment by default in C. B. in an action on the case, wherein the plaintiff declared, that he was possessed of a close adjoining to the defendant's, and that the tenants and occupiers of that close had time out of mind made and repaired the fence between the plaintiff's and defendant's close, and that for want of repair the. defendant's cattle came into the plaintiff's close, &c. Et per Cur.:

1st, Either trespass or case lies: trespass, because it was the plaintiff's ground and not the defendant's; and case, because the first wrong was a nonfeasance and neglect to repair, and that omission is the gist of the action : and the trespass is only consequential damage,

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1 One who is bound to fence is under no duty or liability to one whose cattle are not lawfully on the adjoining land. See Dovaston v. Payme, 2 H. Bl. 527, post p. 580.

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