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pants. In such case the right of way passes with the dominant estate as an incident thereto. A right of way appendant cannot be converted into a way in gross, nor can a way in gross be turned into a way appendant.
A very marked distinction also exists between a way in gross and an easement of profit à prendre ; such as the right to enter upon the lands of another, and remove gravel or other materials therefrom. The latter so far partakes of the nature of an estate in the land itself, as to be treated as an inheritable and assignable interest. Post v. Pearsall, 22 Wend. 432.
Both upon principle and authority, we think there was no error in the charge of the court below. Mr. Washburn in his work on Easements, page 8, par. 11, states the law upon this subject as follows: "A man may have a way in gross over another's land, but it must, from its nature, be a personal right not assignable or inheritable ; nor can it be made so by any terms in the grant, any more than a collateral and independent contract can be made to run with the land.” See also Ackroyd v. Smith, 10 C. B. 164; Garrison v. Rudd, 19 Ill. 558; Post v. Pearsall, 22 Wend. 432; Woolrych on Ways, 20; 2 Black. Com. 35; 3 Kent's Com. 420, 512.
NATURE AND EXTENT OF EASEMENTS.
NOTE. Speaking generally, one estate of fee simple in a corporeal hereditament is like any other estate of fee simple in a corporeal hereditament, but the number of different easements which may be appurtenant to land is indefinite; that is, the nature of an easement is dependent upon the circumstances attending its creation. It is not easy to determine what matters belong properly under this section as concerning the nature and extent of easements, and what in the following book as touching the creation of interests. The line of distinction which has been followed is this : Cases in which the existence of an easement was admitted, but in which its extent only was in question, have been placed here ; while cases in which the existence of any easement at all was disputed have been postponed to the following book.
Easements are of two kinds : the first comprises those easements which limit natural rights; the second, other easements. The first includes the right to pollute the air with smoke, etc., or to fill it with noise ; the right to withdraw support from land ; the right to divert, dam back, or pollute water. See an instance of this last in Bacendale v. McMurray, L. R. 2 Ch. 790. Easements of this class seem to present few difficult questions of general importance. On the cognate subject of the Mill Acts, see Head V. Amoskeag Co., 113 U. S. 9.
A. Light. Note. — There are many cases in the English books on the extent of easements of light acquired by prescription or by implication ; but as, generally, in the United States, such easements can be acquired only by express grant, it does not seem desirable to give many of those cases here. See also E, under this section, infra.
(Reported 2 C. & P. 465.] This was an issue directed by the Lord Chancellor to try, first, whether the ancient lights of the plaintiff in his dwelling-house in the city of Norwich had been illegally obstructed by a certain building of the defendant; and, secondly, If the first issue should be found in the affirmative, what damage the plaintiff had sustained in respect of the injury.
A great many witnesses, including several surveyors of eminence, were examined on both sides ; and it was evident that the quantity of light previously enjoyed by the plaintiff had been diminished by the building in question. Under these circumstances, it was contended for the plaintiff that he was, at all events, entitled to a verdict on the first issue, any obstruction of ancient lights being wrongful and illegal. Storks, Robinson, and Rolfe, for the plaintiff. Kelly and Gunning, for the defendant. Best, C. J., told the jury, who had viewed the premises, that they were to judge rather from their own ocular observation, than from the testimony of any witnesses, however respectable, of the degree of diminution which the plaintiff's ancient lights bad undergone. It was not sufficient, to constitute an illegal obstruction, that the plaintiff bad, in fact
, less light than before ; nor that his warehouse the part of his house principally affected — could not be used for all the purposes to which it might otherwise have been applied. In order to give a right of action, and sustain the issue, there must be a substantial privation of light, sufficient to render the occupation of the house uncomfortable, and to prevent the plaintiff from carrying on his accustomed business (that of a grocer) on the premises, as beneficially as he had formerly done. His Lordship added, that it might be difficult to draw the line, but the jury must distinguish between a partial inconvenience and a real injury to the plaintiff in the enjoyment of the premises.
The jury found for the defendant on both issues. See Wells v. Ody, 7 C. & P. 410 ; Arcedeckne v. Kelk, 2 Giff. 683 ; Clarke v. Clark, L. R. 1 Ch. 16.
"It must not be forgotten that whatever observations fell from Lord Eldon in the case of Attorney-General v. Nichol, 16 Ves. 338, 343, or from Lord Westbury in Jackmv. Duke of Newcastle, 3 D. J. & S. 275, the settled law is now as laid down in Back Y. Stacey
, 2 Car. & P. 466, with the slight alteration (as the Vice-Chancellor Wood points out, Law Rep. 2 Eq. 245) of the single word or' for and.' With that alteration the law stands thus : In order to give a right of action, and sustain the issue, there must be a substantial privation of light sufficient to render the occupation of the bonse uncomfortable or to prevent the plaintiff from carrying on his accustomed busiB. Support and Party Walls.
Note. See the note on p. 204, ante. What is there said of easements of light in the United States, is probably true of easements of support. See also E and F under this section, infra.
MATTS v. HAWKINS.
COMMON PLEAS. 1813.
[Reported 5 Taunt. 20.] The plaintiff declared in trespass, for that the defendant broke and entered his close in St. Giles's in the Fields, and pulled down and destroyed a certain part of a certain wall of the plaintiff's which he was erecting on the said piece of ground, and prevented his building the
ness (that of a grocer) on the premises as beneficially as he had formerly done. That is necessary in order to get damages at law. Whether it was always so, I am by no
If that is necessary to get damages at law, those are the very circum. stances which entitle the plaintiff to an injunction in equity, subject to this, that the damages must be substantial, though one can hardly conceive a case in which, if the doctrine of Back v. Stacey is well founded (and I believe it is), the tenant in possession would not get substantial damages. The only case in which I conceive there would be damages not substantial, would be the case of a reversioner who would not sustain any immediate damage, and who might bring an action to try the right. Then Vice-Chancellor Wood says (Law Rep. 2 Eq. 246) : ‘Having arrived at this conclusion with regard to the remedy which would exist at law, we are met with the further difficulty, that in equity we must not always give relief (it was so laid down by Lord Eldon and by Lori Westbury) where there would be relief given at law. Having considered it in every possible way, I cannot myself arrive at any other conclusion than this : that where substantial damages would be given at law, as distinguished from some small sum of £5, £10, or £20, this court will interpose ; and on this ground, that it cannot be contended that those who are minded to erect a building that will inflict an injury upon their neighbor have a right to purchase him out without any Act of Parliament for that purpose having been obtained.
“It seems to me that that gives a reasonable rule, whatever the law may have been in former times. As I understand it, the rule now is - and I shall so decide in future, unless in the mean time the Appeal Court shall decide differently — that wherever an action can be maintained at law, and really substantial damages, or perhaps I should say considerable damages (for some people may say that £20 is substantial damages), can be recovered at law, there the injunction ought to follow in equity : generally, not universally, because I have something to add upon that subject. In this case I do not think that anybody would doubt the damages would be substantial. The obstruction would in fact destroy the use of the room altogether ; it would so darken it that perhaps it might be used for a cellar, or a similar purpose where no light was required ; but for ordinary purposes it would destroy the use of the room.' JESSEL, M. R., in Aynsley v. Glover, L. R. 18 Eq. 544, 552 (1874).
On the supposed rule of 45° as the limit of what constitutes an obstruction, see Bcadel v. Perry, L. R. 3 Eq. 465 ; City of Londm Brewery Co. v. Tennant, L. R. 9 Ch. 212 ; Hackett v. Baiss, L. R. 20 F7. 494 ; Theed v. Debenham, 2 Ch. D. 165.
Per SiR GEORGE
same, whereby he was prevented from enjoying the land so beneficially as he might have done, and was put to expense in endeavoring to rebuild it. There was another count for breaking a wall of the plaintiff's, and taking away the materials, and other counts for pulling it down a second time, when the plaintiff had rebuilt it. The defendant pleaded the general issue. Upon the trial of this cause, at the Westminster sittings after Michaelmas Term, 1812, before Mansfield, C. J., it appeared that the defendant was the owner of a piece of waste ground in Charles Street, Drury Lane, whereon formerly stood a public-house called the Bull's Head, which had been pulled down about ten years since, and the plaintiff was the owner of a workshop, which stood on ground on the west side of the defendant's ground, and next adjoining thereto, and abutting thereon. The eastern wall of the plaintiff's premises had therefore been the western boundary of the defendant's bouse, the Bull's Head, before it was pulled down, and the defendant bad since built a shed against it on his side. The plaintiff had, without any communication with the defendant, begun to raise this wall higher than it had formerly been, for the purpose of adding to the buildings on his side, when the defendant thought proper to pull it down to its former beight
. The witnesses proved that the wall was a proper party fencewall between the two buildings, and had been built about twenty-five fears before at the joint expense of both proprietors, and that it stood on the boundary line, so that part of the wall was on the ground of each proprietor. The defendant contended, that as no notice had been given to him under the Building Act, 14 G. 3, c. 78, as required by $ 38, of its being out of repair, and of the plaintiff's intention to repair or rebuild it, he had no right to add to it or meddle with it; and also that the defendant was tenant in common with the plaintiff of the wall, and therefore no action of trespass could be supported by the plaintiff against his companion for pulling down the common property. The jury found a verdict for the plaintiff, with 40s. damages, Mansfield, C. J., reserving this point ; upon which Best
, Serjt., in Hilary Term, 1813, obtained a rule nisi to set aside the verdict and enter à nonsúit, when Gibbs, J., observed, that the title he contended for, would not avail the defendant; he must contend be was joint-tenant, if he hoped to succeed in the argument.
Shepherd, Serjt., showed cause.
MANSFIELD, C. J. If these parties are tenants in common, no trespass lies ; but I see not how they became tenants in common.
Under the circumstances, each has a right to the use of this wall; but the wall stands, part on the ground of each, and therefore is not the property of them as tenants in common; and each party, for any injury done to the part which stands on his own land, must have the ordinary
Heath, J. I am of the same opinion. It is truly said for the defendant, that the building ensties the nature of the tenure of the land ;
there must be a conveyance to pass the property of the soil; it will not pass by parol agreement. Here is no tenancy in common. Lord Mans. field said, if a man lets another build on his land, it shall be pronounced a gift; but he never went further than that. [GIBBS, J., seemed to doubt if that doctrine could be supported.]
CHAMBRE, J. At common law, no action of waste lay by one tenant against another; that action was given by the Statute of Westminster the second. The same reasons that prevented a tenant in common from maintaining waste at common law, equally hinder him from maintaining trespass; the question then is, whether these persons are tenants in common. Now the Statute which gives each party certain rights in a wall built in this way, does not make it a common property; it only confers on each a right to use it for certain purposes. There is no transfer of property here, and the parties are severally owners of their respective land as before.
Gibbs, J. I am of the same opinion. Trespass lies not by one tenant in common against another tenant in common. The only remain ing question is, whether these parties are tenants in common.
How are they such? One is owner of the land on which one half of the wall is erected, and the other is owner of the land on which the other half of the wall is erected at their joint expense; and under the Building Act, each is entitled to certain easements in the wall on the land of the other. If they are tenants in common, either may sue out a writ of partition against the other, and then, after partition made, they revert to their own rights again. For this reason, as well as for others, I am clearly of opinion that this rule cannot be maintained.
CUBITT v. PORTER.
KING's BENCH. 1828.
[Reported 8 B. & C. 257.) DECLARATION stated that the defendant on, &c., at, &c., broke and entered a certain close of the plaintiff, to wit
, in the city of Norwich, and county of the same city, and then and there pulled down and dam. aged a great part of a certain wall of the plaintiff, then standing and being in and upon the said close, and the materials thereof, of the plaintiff, of the value of £100, seised, and carried away, and converted, and disposed thereof to his, the defendant's, own use; and also erected and built a certain other wall, and a certain privy, and a certain other erection and building against and upon the wall of the plaintiff, and kept and continued the same other wall, &c., upon of the plaintiff for a long space of time, and also cast divers quantities
and against the wall