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Leach, while he owned the factory and privilege, in 1831, gave to Josiah and Horatio Copeland an oral permission or license to erect, on their land, a dam or embankment across the mouth of a cove that was formed by the water raised by the factory dam, for the purpose of excluding the water from certain parts of their land; and said Copelands made such a dam or embankment, at their own expense, which remained, and effected the purpose for which it was built, until September, 1853. In the same year (1831) Leach also gave said Copelands an oral permision or license to dig a ditch across his (Leach's) land. now owned by the plaintiffs, for the purpose of draining the water of the factory pond which might accumulate on their land, after the erec tion of the dam or embankment by them. This ditch was dug by them, and continued till September, 1853.

In June, 1853, the plaintiffs gave written notice to the defendants and to Caleb Swan, requesting a discontinuance of said ditch and a removal of the dam or embankment, and revoking the license under which the same was made. The defendants did not discontinue the ditch nor remove the embankment; and in September, 1853, the plaintiffs stopped the ditch, at a place in their land, and made an incision in the embankment, on the defendants' land; and the water from the factory pond then flowed over the defendants' land and Swan's land, as it did from 1825 to 1831, before the embankment was made. The defendants thereupon dug a ditch on their own land (Swan contribut ing to the expense thereof), through which all the water, which flowed through the incision made by the plaintiffs in the dam or embankment, was drained off from the defendants' and Swan's land into the stream below the plaintiffs' factory and pond.

For diverting the water through this last ditch from land that the plaintiffs claim as part of their mill-pond, this action is brought. The parties agree that if the plaintiffs had a right to make the said incision in the dam, and are entitled to recover, they shall have judgment for one dollar damages and full costs; if they are not entitled to recover, they are to become nonsuit.

This case was argued at Boston on the 17th of January, 1854.
C. I. Reed, for the plaintiffs.

E. Ames, for the defendants.

METCALF, J. By the deed of Josiah and Horatio Copeland to the Easton Manufacturing Company, dated May 10th, 1825, that company acquired a right to flow all the land of each of the grantors, which could be flowed by the factory dam, as it then existed. The right thus acquired was an easement in the lands of the grantors. That right was transferred, by the company, to Shepard Leach, who thus acquired the same easement. And Leach, in 1831, while he owned the factory and water privilege - which was the dominant tenement-gave an oral license to Josiah and Horatio Copeland, owners of the servient tenement, to erect a dam or embankment on their own land, which should exclude the water from a part of the land which, by their above

mentioned deed, he had a right to flow. That license was executed by them. They made the dam, and it effected the purpose for which it was made, for more than twenty years. In 1853 the plaintiffs, who derive title to the factory and water privilege from Leach, through intermediate conveyances, undertook to revoke the license of 1831; required the defendants to prostrate the dam; and, on the defendants' refusal so to do, prostrated it themselves.

The first question in the case is, whether the plaintiffs can justify that act. We are of opinion that they cannot. For it is a rule of law, that an easement, whether acquired by known grant or by prescription, may be extinguished, renounced or modified, by a parol license granted by the owner of the dominant tenement, and executed by the owner of the servient tenement. The authorities on this point are conclusive. Dyer v. Sanford, 9 Met. 395; Winter v. Brockwell, 8 East, 308; Liggins v. Inge, 7 Bing. 682, and 5 Moore & Payne, 712; Addison v. Hack, 2 Gill, 221.

The next question is, whether the license, given by Leach to Josiah and Horatio Copeland, to cut a ditch through his land, and thereby draw off a part of the water of the factory pond, was revocable by the defendants [plaintiffs], and therefore their act in stopping the ditch was justifiable. And it is well settled that it was revocable. An easement in real estate can be acquired only by deed, or by prescription, which supposes a deed. Cook v. Stearns, 11 Mass. 533; Fentiman v. Smith, 4 East, 107; Wallis v. Harrison, 4 M. & W. 538; Hewlins v. Shippam, 7 Dowl. & Ryl. 783, and 5 B. & C. 221; Cocken v. Cowper, 5 Tyrw. 103, and 1 C. M. & R. 418; Wood v. Leadbitter, 13 M. & W. 838; Adams v. Andrews, 15 Ad. & El. N. R. 284.

The authorities referred to on these first two questions show that the rule, sometimes laid down in the books, that a license executed cannot be countermanded, is not applicable to licenses which, if given by deed, would create an easement; but to licenses which, if given by deed, would extinguish or modify an easement. They also show that the distinction, sometimes taken in the books, between a license to do acts on the licensee's own land, and a license to do acts on the licensor's land, is the same distinction that is made between licenses which, if beld valid, would create, and licenses which extinguish or modify, an easement. Generally, if not always, a license which, when executed, extinguishes or modifies an easement, is, from the nature of the case, a license to do acts on the servient tenement, - the tenement of the licensee. See Gale & Whatley on Easements, Pt. 1, c. 3, § 1.

The last question is, whether the defendants can justify the making of the ditch on their own land, and thereby drawing off the water which flowed through the breach made in the dam erected by them in 1831, on Leach's license. As that water was thrown upon their land by the wrongful act of the plaintiffs, we cannot doubt their right to relieve their land from it by the means which they have adopted.

Plaintiff's nonsuit.

VOL. II. - 25

CHURCHILL v. HULBERT.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

[Reported 110 Mass. 42.]

1872.

MORTON, J. This is an action of tort for an assault and battery. The evidence tended to show that the defendant forcibly entered the premises of the plaintiff for the purpose of removing certain manure which he claimed as his property; that the plaintiff, being present, forbade his entering, and resisted it by seizing the heads of the defendant's horses to prevent them from proceeding further, and thereupon the defendant struck him with a shovel and broke his arm, and then proceeded to remove the manure. The defendant claimed that he had an irrevocable license to enter and remove the manure, and asked the court to instruct the jury, "that if the defendant had a license from the plaintiff, unrevoked or irrevocable, to enter the plaintiff's premises to remove manure which belonged to the defendant, and the defendant did no more than was necessary to enter and remove the same manure, he is not liable in this action." The court refused this request, and instructed the jury in substance, that though the defendant had an irrevocable license to enter and remove the manure which belonged to him, yet if the plaintiff resisted the defendant's entry, under a claim that the defendant had no manure left on the premises, the defendant had no right to use personal violence to overpower the plaintiff's resistance and enforce his claim.

We are of opinion that these instructions were at least sufficiently favorable to the defendant. The cases cited by his counsel show that if he had an irrevocable license to enter, he would not be liable in an action of trespass quare clausum for an entry, if he could make it without opposition or resistance; but the authorities are clear that if resisted, he had no right to enforce his claim by a breach of the peace. Sampson v. Henry, 13 Pick. 379; Commonwealth v. Haley, 4 Allen, 318; 3 Bl. Com. 4. If it be assumed, therefore, that the defendant had an irrevocable license to enter the plaintiff's premises, yet upon being resisted it was his duty to desist from his attempt to enter, and resort to his legal remedies. He cannot justify a resort to personal violence to enforce his rights. Exceptions overruled.1

S. W. Bowerman, for the defendant.
M. Wilcox, for the plaintiff.

1 But see Sterling v. Warden, 51 N. H. 217.

CANNY v. ANDREWS.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1877.

[Reported 123 Mass. 155.]

BILL in equity, filed December 27, 1876, to restrain the defendant from removing a chimney in which the plaintiff claimed certain easements. Upon the filing of the bill, a temporary injunction was granted. At the hearing, before Colt, J., the following facts were admitted by the parties:

About a hundred years ago, a block of three houses was erected on the corner of Clark Street and Hanover Street, in Boston. On September 13, 1869, the city of Boston passed an order authorizing the widening of Hanover Street, and, in pursuance of said order, purchased by deed of warranty, from Nancy Pierce, the corner lot of the block, with the building thereon, which fronted on Clark Street twenty-nine and one half feet, and on Hanover Street seventy-two feet. On May 10, 1870, the city of Boston sold the building on the corner lot to George W. Gerrish, who proceeded at once to tear down the building, and removed all the materials constituting the same. After the sale and removal, the city of Boston appropriated to the widening of Hanover Street a strip of said corner lot of land, twenty-four feet and nine inches wide, and filled up the cellar formerly under the building. The removal of the building was necessary from the widening of the street. On December 26, 1876, the city of Boston sold by public auction the remaining part of the corner lot, without any building thereon, to the plaintiff, and delivered to him a quitclaim deed thereof on the same day, and he has since been in possession thereof. The defendant is seised of the lot and house adjoining the plaintiff's land. Before the removal of the building by Gerrish, there was no wall between the two buildings, and they were a mutual protection to each other, beams running lengthwise between the two buildings supporting the floor timbers of both houses. The beams projected and still project over the line of the plaintiff's estate six inches at the Clark Street end, but inclined entirely under the defendant's building at the rear end. There is a chimney covering thirty-six square feet of land standing wholly in and belonging to the land of the defendant, in which there were fireplaces, and closets adjacent to the fireplaces, opening into each floor of the building removed. An easement by prescription existed to the use of the fireplaces, closets, and beams supporting the floor timbers, which now exists, unless terminated by the destruction of the building. Upon the removal of the building by Gerrish, the side of the defendant's building was laid open and left unprotected from the elements, and in such a condition that the beams and rafters which supported the floor

ings and roof of the defendant's building were uncovered, and the plaster and lathing, which had been the only partition between the buildings, were exposed to view, and were the only protection of the defendant's building from the inclemency of the weather. The building became untenantable, and, for its proper use and enjoyment, it became necessary to erect a suitable outside wall on the side of her building next adjoining the plaintiff's land. The defendant began to tear down the chimney and build a wall, when she was restrained by injunction.

The plaintiff contended that he had the right to rebuild on the remaining strip of land, and again use the fireplaces, closets, and beams for the support of floor timbers.

The defendant contended that the easements were coextensive with the existence of the buildings, and ended with the necessity which created them; and that, the city of Boston having caused the dominant tenement to be destroyed, the easements were extinguished by operation of law, and that its grantee was therefore estopped from asserting any easements therein.

The judge reserved the case for the consideration of the full court. C. F. Donnelly, for the plaintiff.

C. D. Adams, for the defendant.

SOULE, J. The easement which the plaintiff claims was not gained by deed, but by the continuous use and enjoyment of the chimney of the defendant, by the owners of the house which formerly stood in part on the premises now owned by the plaintiff. The city of Boston, the plaintiff's grantor, on May 10, 1870, sold this house as personal property, and caused it to be destroyed, not because it was falling to decay and was unsafe, but because the city wished to appropriate the greater part — about five sixths of the land on which it stood to the widening of Hanover Street. The cellar which had been under the house was filled up, and the street was widened, as intended. This having been done, the city continued to own that part of the land not included in the street, until December 26, 1876, without erecting any building thereon. The destruction of the house by the city left the house of the defendant open and exposed to the weather, so that the erection of a wall was necessary to its safe occupation. In order to build such wall, the defendant began to destroy the chimney, but was stopped by an injunction granted in favor of the plaintiff.

It is well settled that an easement gained by prescription may be lost by abandonment, and that such abandonment may be shown by a cesser to use for even a short period, accompanied by acts of the owner of the dominant estate indicating an intention to abandon the right. Dyer v. Sanford, 9 Met. 395; Pope v. Devereux, 5 Gray, 409; The Queen v. Chorley, 12 Q. B. 515; Moore v. Rawson, 3 B. & C. 332.

The unavoidable inference, from the acts of the city in respect to the matter, is that, when it removed the house and converted the larger

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