THE

AMERICAN LAW REGISTER.

JULY, 1863.

THE LOSS OF SERVITUDES BY ABANDONMENT.

It is undoubtedly true that as the right of property may be acquired in certain cases by occupation, so the right may in all cases be lost by abandonment. There are certain rights the existence and continuance of which depend upon occupation. Such is the right to the enjoyment of the elements of air and water, which are common to all. So far as the exclusive right to any portion of running waters, which are publici juris, depends upon occupation, that must be continued; and when the occupation ceases, it returns to its former state, and again becomes common to all. The right of the occupant is at an end, except so far as it is preserved upon a declared or a presumed intention by operation of law.

It was upon this principle that the decision was founded in a case decided by the Court of Common Pleas : Liggins vs. Inge, 7 Bingh. R. 682. Mr. Chief Justice TINDAL said, in that case, that there was nothing unreasonable in holding that a right which is gained by occupancy should be lost by abandonment. Suppose, he says, a person who formerly had a mill upon a stream should pull it down and remove the works, with the intention never to return; could it be held that the owner of other land adjoining the

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stream might not erect a mill and employ the water so relinquished, or that he could be compellable to pull down his mill, if the former millowner should afterwards change his determination and wish to ⚫ rebuild his own? The learned Judge considered the question of abandonment as one of fact for the jury, and was of opinion that an open and express declaration of the intention of abandonment would be sufficient protection to a new occupant, who had erected a mill in reliance upon the extinction of the former right. The right supposed to be relinquished is not acquired by grant or prescription from the other proprietors of the stream, and when it is shown that it is absolutely abandoned in any mode, the occupation which is necessary to the maintenance of the right ceases; then, there is nothing to prevent a new and distinct right from being acquired by occupation.

In Lawrence vs. Obee, 3 Campb. 514, and in Thomas vs. Hill, 31 Maine 152, a prescriptive right was gained by an adverse party after the supposed abandonment. And when, as in Drewett vs. Sheard, 7 Car. & P. 465, a party had acquired a right to use a larger wheel and a greater flow of water, and afterwards discontinued the larger wheel, and resumed the smaller wheel to which he was before entitled, he was held to have abandoned the right to the use of the larger wheel. This case may perhaps be justified on the ground that an adverse right was acquired by occupancy.

And if, in a case where the abandonment may not be shown to have been made with the intention to relinquish the right, the former owner, after notice, permits a new occupant to proceed in expensive works, in reliance upon the fact of abandonment, certainly he would have no claim to favor, from a court either of law or equity.

In the case of Stokoe vs. Singers, 8 Ellis & Bl. 31, the doctrine was asserted that a party entitled to the easement of lights, who, after having disused his right for a length of time, has given occasion to a neighboring proprietor to make expensive improvements, with a view to such supposed abandonment, was precluded from resuming the exercise of his easement. Lord CAMPBELL said that the case of Regina vs. Chorley, 12 Q. B. 515 (post, p. 518),

was an authority that "an abandonment is effectual, if communicated and acted upon. It goes no further."

In Crum vs. Fox, 16 Barb. 184, where one had a right of way to a house across another's land, and after twelve years enclosed the way and cultivated it, the way was held to be abandoned; but as no equitable right had sprung up, and no adverse right exercised, there would seem to have been no abandonment.

The doctrine that a right which is acquired by occupation may be lost by abandonment, was applied, in another case, to the servitude of lights, upon a principle much less satisfactory. It was held in the King's Bench (Moore vs. Rawson, 3 B. & C. 332), that a right to lights might be lost by a disuser for a time less than twenty years, under circumstances which showed the intent of abandonment, as where a party had the enjoyment of light and air by means of certain windows in the wall of his house, and upon the site of the wall he built a blank wall without any windows. Things continued in this state for seventeen years. The defendant, in the mean time, erected a building opposite the plaintiff's blank wall, and then the plaintiff opened a window in that, which had continued for so long a period a blank wall without windows, and thereafter brought his action for the darkening of his windows by the buildings which the defendant had so erected. The Court were of opinion if a person entitled to ancient lights builds a blank wall in their place, and suffers it to remain for a considerable period of time, that an abandonment of the right is to be presumed, and that if a temporary disuse alone was intended, he was bound to show that the abandonment was not perpetual; and the Court relied much, as a reason for this rule, upon the consideration that the building of the blank wall might have induced. another person to become the purchaser of the adjoining ground for building, and that it would be unjust to prevent him from carrying that purpose into effect. It must be confessed that this is a very unsatisfactory reason for the general doctrine, however proper it might be that it should influence the decision of a court of equity in the case of a purchase of land for the purpose of building, without notice of an existing servitude. One of the Judges, Mr. Jus

tice LITTLEDALE, was of opinion that if a party who had acquired a right to ancient lights by grant, ceases for a long period of time to make use of the privilege so granted to him, it may then be presumed that he has released the right. In answer to the argu ment, that, as he could only acquire the right by twenty years' enjoyment, it ought not to be lost without disuse for the same period; and that, as enjoyment for such a length of time is necessary to found a presumption of a grant, there must be a similar non-user to raise a presumption of a release; he said that reasoning might apply, perhaps, to a right of common or of way, but that there was a material distinction between the mode of acquiring such rights and a right to light and air; that the latter was acquired by mere occupancy, the former only by user accompanied by the consent of the owner of the land. This, which is the principal ground for the decision, is extremely unsatisfactory; for though there is a material difference between the circumstances under which a right to unobstructed lights and a right of way or of common is acquired, they are each founded on a grant express or presumed. The right to unobstructed lights is not in any sense acquired by occupancy, but, when not arising from an express covenant, depends altogether upon the presumption of a grant resulting from length of time. It is wrong to say that even the right of the owner to place lights in his wall is gained by occupancy, like the use of water in certain cases: it is a right incident to property, which an owner may exercise or not, at his pleasure. The right to prevent the owner of adjoining land from enjoying fully his proprietary right of building to any height on his own land is different, and it is this which is acquired by a covenant or grant express or presumed. The negative servitude which has once vested on the presumption resulting from long user is of the same character as if created by express grant. It is not at all like a right in running water, which depends upon a continued occapancy. It can only be released by a deed inter partes, or by matter in pais, such as shows the intent to abandon the right. No disposition of property which causes a cesser of the use of a right which is incident to it, can produce that effect, unless the intention

to abandon the right is shown. It would seem that on principle the servitude in question was an absolute right of property, which could no more be lost by disuser than any other proprietary right, unless continued so long as to raise the presumption of a grant or release. It is even a question under the civil law, whether the right can be lost by mere length of time, without some act on the part of the owner of the servient tenement contrary to the servitude itself. The effect of the decision in this case would seem to be (so far, at least, as it regards the law of England) to establish, in respect to the servitude of ancient lights, the anomalous rule that it may be lost by non-user; for any ❝ considerable time," in the words of ABBOTT, C. J., and that in order to prevent this result, it would be necessary for the owner of the lights to show that he intended to resume the enjoyment of them within a "reasonable time." What such considerable time on the one hand, or reasonable time on the other, shall be, does not appear; nor by what evidence it shall be shown that the party intends to resume the enjoyment; whether possession must be maintained by vestiges, as in certain cases under the French law, or whether it will be sufficient if the owner of the dominant tenement declares his intention not to abandon the right, but to resume its exercise at some future time.

In the case of Lowell vs. Smith, 3 C. B. N. S. 120, the plaintiff, having a right of way by prescription more than thirty years before the action, agreed with the owner and occupier of the servient tenement, that the use of a portion of that way should be discontinued, and a new one equally convenient to him should be sub stituted for it. The agreement for a substitution failed by reason of the infancy and coverture of a party whose consent was necessary thereto. The plaintiff therefore fell back upon his original right. The Court were of opinion that there was nothing from which an abandonment could be inferred, except the exercise of the right over the new way, and that was clearly not sufficient. WILLES, J., said: "I do not think that this Court means to lay down that there can be an abandonment of a prescriptive easement like this without a deed or evidence from which a jury can presume