but it may be explained and repelled, and is only a matter of evidence for a jury to infer the right. (m)

3. The right to the enjoyment of free and pure air, as incident to the estate, is likewise under the protection of the law. If, therefore, anything offensive be erected so near the house of another, as to corrupt or pollute the air, it becomes a nuisance, and an action lies for the injury. On the other hand, if a tanyard, for instance, renders the air of the house and garden, subsequently established, adjoining it, less pleasant and salubrious, the nuisance is remediless as to the person who voluntarily plants himself near it. (n)

(9.) Easements lost by abandonment.

A right acquired by use may, however, be lost by non-user; and an absolute discontinuance of the use for twenty years, affords a presumption of the extinguishment of the right in favor of some other adverse right. (0)9 As an enjoyment for twenty years is

(m) The Court of Appeals in South Carolina, in the case of M'Cready v. Thomson, 1 Dudley Law and Eq. 131, held, that an action in the case lay for obstructing the air and light of the plaintiff's windows, which he had the uninterrupted enjoyment of as an easement by the prescriptive right of twenty years and upwards. It is a reasonable right contributing to the comfort and value of a person's habitation. So the Court of Chancery will, by injunction, in a proper case, prevent the obstruction of light enjoyed for twenty years. Robeson v. Pittinger, Green (N. J.) Ch. 57.7

(n) 2 Blacks. Com. 402, 403; Com. Dig. tit. Action upon the Case for a Nuisance, A. C.; Rex v. Cross, 2 Carr. & Pa. 483. See supra, p. 441, n. a, 442, n. d. Sce, fur ther, as to nuisance disturbing the rightful enjoyment of easements, Sir Wm. Jones, 222; Doddridge J., in Jones v. Powell, Palmer, 536; 2 Rol. Abr. Nusans, G. pl. 1, 8, 9; Bower v. Hill, 1 Bing. N. C. 549; Hall v. Swift, 6 Scott, 167; Gale & Whatley on Easements, 395, 396. It is said by the Chancellor, in Catlin v. Valentine, 9 Paige, 575, that a slaughter-house in a city is prima facie a nuisance to the neighborhood, and that it was not requisite to constitute a nuisance that the noxious business should endanger the health of the neighborhood. It is sufficient if it be offensive to the senses, and renders the enjoyment of life there uncomfortable.

The remedies for disturbance in the rightful enjoyment of an easement are: 1. By act of the party; for the injured party may enter upon another's land and abate the nuisance. 2. By action at law. 3. By suit in equity. See Gale & Whatley on Easements, part 4, c. 2.8

(0) Prescott v. Phillips, decided in 1797, and reported in 2 Evans's Pothier, 136;

7 Neither by prescription nor by presumption of a grant can a right to have free access of wind to a windmill be supported. Webb v. Bird, 10 C. B. (N. S.) 268.

8 Great Falls Co. v. Worster, 15 N. Hamp. 412.

9 But an easement, granted by deed, cannot be lost by mere disuse. Jewett v. Jewett, 16 Barb. (N. Y.) 150.

11

necessary to found a presumption of a grant, the general rule is, that there must be a similar non-user to raise the presumption of a release. The mere non-user of an easement, for twenty years, will afford a presumption of a release or extinguishment, but not a very strong one, in a case unaided by circumstances; but if there has been, in the mean time, some act done by the owner of the land charged with the easement, inconsistent with, or adverse to the existence of the right, a release or extinguishment of the right will be presumed. (p) 1 The doctrine of the civil law was, that a servitude was presumed to have been released or renounced, when the owner of the estate to which it was due permitted the owner of the estate charged with it to erect such works on it, as a wall, for instance, which naturally and necessarily hindered the exercise of the right, and operated to annihilate it. The mere sufferance of works to be erected, repugnant to the * enjoyment of the servitude, would not raise the presumption of a release, unless the sufferance continued for a time requisite to establish a prescription; or the works were of a permanent and solid kind, such as edifices and walls, and presented

*

449

Lawrence v. Obee, 3 Campb. 514. Bracton laid down the same principle, that incorporeal rights acquired by use may be equally lost by disuse. Lib. 4; De Assisa Novæ Disseisinæ, c. 38, sec. 3; Corning v. Gould, 16 Wendell, 531. The last case contains a full and learned view of the law on the subject.

(p) See the reasoning of Sir William D. Evans, in Evans's Pothier, vol. ii. 136. In the case of Wright v. Freeman, 5 Harr. & Johns. 477, a presumption of extinguishment by non-user, of a right of way for twenty years, was held to be admissible, but it was fortified in that case by acts of the party, and these acts were relied on by the court.10 Mr. Justice Story, in Tyler v. Wilkinson, says, that the proprietors of Sergeant's trench were entitled to so much, and no more of the water of the river, as had been accustomed for twenty years to flow through their trench, to and from their mills; whether actually used or necessary for the mills or not. See, also, White v. Crawford, 10 Mass. 183. In Arnold v. Stevens, 24 Pick. 106, the court protected an easement so far against the presumption of abandonment, as to hold that the mere neglect of the grantee for forty years to exercise the right to dig ore in the land of another, would not extinguish the right, when there was no act of adverse enjoyment on the part of the owner of the land. In 10 Pick. 310, Emerson v. Wiley, it was held, that a right of way is not lost by non-user for less than twenty years; and in Yeakle v. Nace, 2 Wharton, 123, that twenty-one years' adverse occupation extinguishes it.

10 In Knight v. Heaton, 22 Vermont, 480, it was held that a right of way was lost to the public by an adverse occupancy of more than twenty years.

11 The cessor of a use for a less period than twenty years, accompanied by any act clearly indicative of an intention to abandon the right, is sufficient to extinguish a right of way. Reg v. Chorley, 12 Jurist Rep. (1850) p. 822; Ward v. Ward, 14 Eng. L. & Eq. 413.

an absolute obstacle to every kind of enjoyment of the easement. There must be a total cessation of the exercise of the right to the servitude, during the entire time necessary to raise the presumption of extinguishment, or there must have been some permanent obstacle permitted to be raised against it, and which absolutely destroyed its exercise. (a) If the act which prevents the servitude be incompatible with the nature or exercise of it, and be by the party to whom the servitude is due, it is sufficient to extinguish it; and if it be extinguished for a moment, it is gone forever. (b) 1 Unity of possession of the estate to which an easement is attached, and of the estate which the easement encumbers, is, in effect, an extinguishment of the easement. But this does not apply to a way of necessity; and though it be suspended by the unity of possession, it revives by necessary implication, when the possession is again severed. (c) Nor is a watercourse extinguished by unity of possession, and this from the necessity of the

1

(a) Dig. 8, 6, 5; Voet, Com. Ad. Pand. lib. 8, tit. 6, secs. 5, 7; Toullier's Droit Civil Français, tom. iii. n. 673; Repertoire de Jurisprudence, par Merlin, tit. Servitude, c. 30, sec. 6, c. 33. Toullier says, that the article Servitude, in the Repertoire, is composed with great care. Civil Code of Louisiana, arts. 815, 816; Haight v. Proprietors of the Morris Aqueduct, 4 Wash. C. C. 601. In Dyer v. Sanford, 9 Metcalf, 395, some nice questions respecting easements were discussed, and it was laid down that an easement could not be extinguished or renounced by a parol agreement between the owner of the dominant and the servient tenement, but the owner of the dominant tenement may make such changes in the use and condition of the estate as to amount to an abandonment. So, an executed license may operate as an abandonment to the extent of it.

(b) Taylor v. Hampdon, 4 M'Cord, 96. The statute of 2 and 3 William IV. c. 71, declared, that no claim to any way or other easement, or to any watercourse, or the use of any water, should be defeated by showing the commencement of the right or user at any time prior to twenty years' enjoyment; and after forty years the right should be deemed absolute. So, a claim to the use of light, enjoyed for twenty years without interruption, should be deemed absolute. Flight v. Thomas, 11 Adol. & Ell. 688. The better doctrine would seem to be, that the mere intermittance of the user of an easement, unless accompanied by some evident intention to renounce the right, does not amount to an abandonment. So, acts of interruption must be known and acquiesced in to raise the presumption of having renounced the right. Gale & Whatley on Easements, 380-383.

(c) 1 Saund. 323, note 6; Story J., in Hazard v. Robinson, 3 Mason, 276.

1 Crain v. Fox, 16 Barb. (N. Y.) 184; Farrar v. Cooper, 34 Maine, 394; Zimmerman v. Wengert, 31 Penn. State, 401.

2 Though mortgages of both the dominant and the servient estate, respectively, be held by the same person, a right of way is not extinguished before foreclosure. Ritger v. Parker, 8 Cush. 145.

case, and the nature of the subject. This was settled, after a very elaborate discussion, in Shury v. Pigott, (d) and that case was accurately examined and deliberately confirmed, in all its parts, in

Hazard v. Robinson. But the use of water, in a particular *450 way, by means of an * aqueduct, may be extinguished by the unity of possession, and title of both the parcels of land connected with the easements; and if the adverse enjoyment of an easement be extinguished, within the period of prescription, by the unity of title, and the land which possesses the easement be shortly thereafter separated again from the land charged with the easement, by a reconveyance, the right to be acquired by user must commence de novo from the last period. (a) As to light and air, the right to them is acquired by mere occupancy, and will continue so long only as the party continues the enjoyment, or shows an intention to continue it. A person may lose a right to ancient lights by abandonment of them, within a less period than twenty years, if he indicates an intention, when he relinquishes the enjoyment of them, as by building a blank wall to his house, never to resume it. (b) It is the modern doctrine, that the ceasing to enjoy such an easement, acquired by occupancy, will destroy the right, provided the discontinuance be absolute and decisive, and unaccompanied with any intention to resume it within a reasonable time; and it is a wholesome and wise qualification of the rule, considering the extensive and rapid improvements that are everywhere making upon real property. (c)

(10.) Easements lost by dedication to the public.

Dedications of land for public purposes, as for charitable and religious uses, and for public highways and village squares, enure as grants, and may be valid, without any specific grantee in esse at the time, to whom the fee could be conveyed. (d) And if a

(d) 3 Bulst. 339; Popham, 166.

(a) Manning v. Smith, 6 Conn. 289.

'b) Ibid.

(c) Moore v. Rawson, 3 Barn. & Cress. 332; Tindal C. J., in Liggins v. Inge, 7 Bing. 693, S. P. It was held, in Moore v. Rawson, that the right to ancient lights may be devested under an implied abandonment, though it was doubted whether it would have that effect on a right of way or common; and a distinction was taken by Littledale J., between prescriptive rights to be enjoyed upon the property of the party himself, and those to be exercised upon the land of another.

(d) Town of Pawlet v. Clark, 9 Cranch, 292; City of Cincinnati v. White, 6 Peters U. S. 431; Brown v. Manning, 6 Ohio, 303; Watertown v. Cowen, 4 Paige, 510.

street be designated by public commissioners, duly authorized, as passing over certain lands, and the owner subsequently conveys part of the land lots, bounding them on such a street, this is held to be a dedication of the land, over which the street passes, to the public use, and on opening the street, the purchaser can only obtain a nominal sum as a compensation for the fee. (e) 3 But it has been an unsettled question, what length of time was requisite to create the presumption of a valid dedication of a highway to the public. It seems to be agreed that some portion of time is neces sary to establish a presumptive dedication of it. Thus, in the

Hobbs v. Lowell, 19 Pick. 405. In this last case, the effect of the dedication of a highway to the public was elaborately discussed, and it was held that a highway may be so established by the owner of the soil, with an assent on the part of the public.1 In Gowen v. Phil. Ex. Co. 5 Watts & Serg. 142, Ch. J. Gibson traced this modern, and which he termed anomalous doctrine of dedication to public use, or of a grant to the public without the intervention of a trustee, up to the case of Rex v. Hudson, Str. 909, in the year 1732.

(e) In the matter of Thirty-second Street, 19 Wendell, 128; Matter of Thirty-ninth Street, N. Y. 1 Hill, 191. In this last case it was held, that where a deed bounds the grantee by a street designated on the commissioner's map, he dedicates the land in the site of the street to the public use; and this is the conclusion whether the purchaser be bound by the centre of the street, or the side of it.2 In the case of Pearsall v. Post, 20 Wendell, 119-137, Mr. Justice Cowen learnedly and ably discussed the subject; and he considered the doctrine to be rather novel and anomalous, that a grant, either in religious or other cases, could be good, when there was no person in existence capable of taking anything under it. He held, also, that dedications of lands or easements to the public, were to be confined to common highways, streets, and squares, and that all other easements were founded on the presumption of a grant between competent parties. This case was afterwards affirmed on error. 22 Wendell, 425; Munson v. Hungerford, 6 Barb. (N. Y.) 265.

1 People v. Beaubien, 2 Doug. (Mich.) 256. In this case a distinction is adverted to between a dedication to public uses, which requires an acceptance, and individual rights under grants. Use by the public, it is said, will not establish a dedication as to creeks or rivers not strictly navigable. Curtis v. Keeler, 14 Barb. (N. Y.) 511. See City of Boston v. Lecraw, 17 How. U. S. 426.

2 But the publishing of a map by the owner of ground proposed to be made the site of a town, does not conclude him to any extent. It is only when lots are sold with reference to such plan, that other rights intervene. Logansport v. Dunn, 8 Ind. 378.

3 Godfrey v. Alton, 12 Ill. 29; Doe v. Attica, 7 Porter (Ind.) 641; Macon v. Franklin, 12 Geo. 239; Alvas v. Henderson, 16 B. Mon. 131; Cady v. Conger, 19 N. Y. (5 Smith) 256. As respects dedication, grants of city lands are construed differently from grants of lands in the country. Badeau v. Mead, 14 Barb. (N. Y.) 328.

Even if twenty years' acquiescence and user be required to complete the dedication of a way, the course of the way, (the termini remaining the same,) may be changed, and a right to the new portions acquired in a much shorter period of time. Larned v. Larned, 11 Metcalf, 421.