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ant replied that she might pass over the land as much as she pleased, " as much as if the right of way was in the deed ;” and the user having thereafter continued twenty years, this evidence was admitted, as having a tendency to show that the plaintiff used the way openly, as of right, against the owner of the soil, and so was adverse. La Frombois v. Jackson is to the effect that an entry under color of title will be adverse, however groundless the supposed title may be, while possession, without claim of title, will never confer a title on the possessor. In Briggs v. Prosser the defendant, for the purpose of showing adverse possession, offered to show that he was in under contract for the conveyance of land, the price of which had been fully paid, so that he was in equity the owner, and also to show declarations of the plaintiff to the effect that he had sold the premises to the defendant, and that they belonged to him; and all this for the purpose of establishing an adverse possession. It was held proper for that purpose, because the defendant was equitably entitled to a deed, and there was nothing in the character of the possession under it inconsistent with the idea of an adverse possession. Whether it were adverse or not, the court say • would depend upon the circumstances of each particular case.” In both cases, possession was taken under a contract for a deed, and it was held, and nothing more, that this did not per se necessarily preclude the adverse character of the subsequent possession. In the case before us there was no contract for a deed, or any engagement to confer a title. The cases are not in point. In all, there was an equitable title and a claim of right; and in each of the last two, an agreement for a deed. In all, an obvious intention to claim the title and a possession inconsistent with the plaintiff's ownership. As I have above undertaken to show, the possession of the plaintiff here was under no claim of right, and was entirely consistent with the defendant's title. The plaintiff's enjoyment was permissive, and he had no title, either in law or equity.

It is clear that the defendant, in the acts complained of, has gone no further than to exercise his legal rights. Of these he should not be deprived, unless he bas acted in such a way as to make it fraudulent for him to set them up. There is no finding to that effect; nor would the evidence warrant such conclusion. The plaintiff has made out no case against this appeal; and the judgments of the General and Special Terms should therefore be reversed and a new trial granted, with costs to abide the event.

All concur, except EARL, J., dissenting.
FINCH, J., concurring in result.

Judgment reversed."

1 See Cronkhite v. Cronkhite, 94 N. Y. 323 ; Johnson v. Skillman, 29 Minn. 95.

STEERE v. TIFFANY.

SUPREME COURT OF Rhode Island. 1882.

(Reported 13 R. I. 568.] TRESPASS on the case. Heard by the court, jury trial being waived.

This action was trespass on the case for obstructing a right of way over the small triangle of land marked i, k, l, on the accompanying plat. The plaintiff and the defendant both derived title from the same proprietor, and their lots extended by the descriptions of their deeds to the middle line of the way b, a, c, d, the way being laid out and platted for the common use of all the lot owners on the plat. After all the platted lots had been sold, the city of Providence laid out the area enclosed by the lines f, e, h, g, as a public highway, called Summer Street. Subsequently the owner of lot No. 5 obstructed the triangle marked 1, i, k, and the owner of lot No. 13 thereupon brought this. action.

DURFEE, C. J. The only defence set up by the defendant is, that the way which he is sued for obstructing had been lost before obstruction by renunciation or abandonment. It is well settled that an easement may be so lost, though where the only proof of it is cesser of use, the cesser of use must have continued for at least twenty years. Where, however, there is other proof showing clearly an intent to renounce or abandon, the easement may be lost in a much briefer time. Thus where A. had an easement of light in the land of B., enjoyed by means of a window opening in an ancient wall of his house, which he pulled down and rebuilt without the window, it was held, after seventeen years, B. meanwhile having built so as to intercept the light, that the easement had been abandoned and lost. Moore v. Rawson, 3 B. & C. 332. See also Liggins v. Inge, 7 Bing. 682; Pope v. Devereaux, 5 Gray, 409; Canny v. Andrews, 123 Mass. 155. It is not, it has been said, so much the duration of the cesser as the nature of the act done by the owner of the easement, or of the adverse act acquiesced in, and the intention which the one or the other indicates, that is material. Regina v. Chorley, 12 Q. B. 515, 519. Where A., having a way leading from his house and barn on his own land to the highway over the land of B., removed house and barn, ploughed and planted the land, and fenced up the end of the way, it was held, twelve years after the removal of the house, that the way had been renounced and lost. Crain v. Fox, 16 Barb. S. C. 184. The case of Corning v. Gould, 16 Wend. 531, is still more like the case at bar. There the

16.90

Nos

parties owned adjoining lots, with a private way for their common use along the dividing line, which was the centre of the way. The plaintiff, four or five years before suit, built a house on his lot which encroached on the way, and then ran a fence through the centre, thus taking half to himself and leaving the other half to the adjoining owner, who sold to the defendant. The defendant proceeded to occupy a part of his half with a house. The court held that the way had become extinct, the acts of both parties being incompatible with its continuance. In Dyer v. Sanford, 9 Met. 395, Chief Justice Shaw declared that, to prove an abandonment, it was only necessary to show that the acts relied on were done by the owner in fee of the dominant tenement, and were of such a character as to show decisively an intent to abandon. And see Taylor v. Hampton, 4 McCord, 96 ; 3 Kent Comment. 352; Washburn on Easements and Servitudes, *542–*549.

In the case at bar the way, con

Broad Street. sidered as a private way, was created for the common use of the owners, whose opposite lots met in the centre of it subject to the easement. After the lay out of Summer Street

No 2 diagonally across

NO 14 the way, the plaintīti or his predecessor in title took exclusive possession or the fattin

No 13 front of his lot by moving his house forward. His next neighbor did likewise. The owner

Conduit Streets of the lot on which was the gangway leading from the way to Broad Street Closed the gangway. These

Še to acts were all done Lines a, b, c, d, show the original lay-out of the way in question, without objection.

Lot 5 is the defendant's estate. The result is that

Lines i, k, l, show the land in dispute. VOL. 11. – 28

Lines e. J,,h, show the position of Summer Street.
Lot 13 is the plaintiff's estate.

the way as originally established has practically ceased to exist; and when the defendant, following the plaintiff's example, took possession of the small bit of the way lying between the plaintiff's lot and Summer Street, he thereby unmistakably signified his consent to its destruction. The plaintiff, in suing him, is suing for an obstruction, not of the way as created, but of a mere bit of it, which is convenient for his individual use, but which, partly in consequence of his own acts, is no longer capable of being used as originally intended. Can be maintain his action? We think not. The way, if it ever existed as a private way, so existed by implication or estoppel, not by express grant. To ascertain its character, therefore, we must look to the circumstances of its creation; and doing so, we think it is manifest that the way was intended to exist as a whole, and not in halves, and that consequently to take away either half is to destroy it, and the party taking must be held to have renounced or abandoned his right in the other half. The case in this aspect is almost identical with Corning v. Gould, of wbich the court, in Crain v. Fox, remarks, that the fence erected in the centre of the way was an unequivocal act of renunciation, for the plain reason that the use of the way in common was rendered impossible by it. We do not see how it is possible for us to hold in the case at bar that the defendant is liable, without also holding implicitly that the way as originally established still exists, and that the plaintiff is liable likewise for obstructing it. This result, however, the plaintiff disavows, and his disavowal must be taken conclusively against bim as a renunciation of the easement.

The plaintiff has access to the public street otherwise than over the defendant's land, and it is therefore unnecessary to inquire if he could, in the circumstances, maintain his action if he were claiming the way as a way of necessity. We give the defendant judgment for costs.

Judament for defendant. Charles H. Parkhurst and Charles L. Steere, for plaintiff. Perce and Hullett, for defendant.

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CHAPTER IV.

COVENANTS AS TO THE USE OF THE LAND.

SECTION I.

IN GENERAL.

this case, theighths, of certain demised t

STANDEN v. CHRISMAS.
Queen's BENCH. 1847.

(Reported 10 Q. B. 135.]
LORD DENMAN, C. J., delivered the judgment of the court.1

In this case, the plaintiff being entitled to five eighths, and one Richardson to three eighths, of certain copybold premises, Richardson, by lease in writing, not under seal, demised them to the defendants in his own name for one year, at a rent payable half yearly, and under certain terms of repairing. Before the first half year's rent became due Richardson surrendered his interest to the plaintiff, of which the defendants had notice, and afterwards paid the half year's rent to an agent employed both by Richardson and the plaintiff.

The present action is for non-repair, and for use and occupation, to recover the last half year's rent; and a verdict was found for the de. fendants. It was objected, at the trial, that no evidence was given of the existence of a manor of which the premises were copyhold. But surrenders purporting to be copies of the rolls of the manor, and which were admitted under a judge's order, were given in evidence, and, we think, were abundant evidence on that point.

With regard to repairs, it was objected that Stat. 32 H. 8, c. 34, applies only to cases of demise by deed, and that the assignee of the reversion cannot sue in assumpsit on the contract made by the assignor. We are entirely of this opinion, and that the verdict on the first count is right. So on the second count, which is on an implied contract to repair arising out of the relation of landlord and tenant. No such implied contract arises where the tenant holds under an express contract which provides for the very matter. Therefore, the verdict on the second count is also right.

The count for use and occupation requires more consideration. No doubt the plaintiff was landlord during the time that the rent in question accrued, and when it became due, and was entitled to receive it. He might have distrained for it, supposing the tenancy to have contin

1 The opinion only is given.

gard to demise on the cof the

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