what period may be sufficient in any particular case must depend on all the accompanying circumstances(m).

A private right of way is not extinguished by the subsequent dedication of the way to the public(n).

181 Extinguishment of ways of necessity.-A way by necessity is commensurate only with the existence of such necessity, so that when the necessity ceases the right of way also ceases(nn). Where, therefore, a person who has a way of necessity over the lands of another is able to approach the land for which the way was used by passing over his own soil, the right of way is extinguished. "When, by a subsequent purchase, he is enabled to reach his house, farm or field, without touching the land of his neighbor, the necessity of going upon the land of the latter ceases, and, the necessity ceasing, the right founded upon such necessity ceases also "(6). But the easement revives again when the necessity for it revives(p):

182 Suspension and forfeiture of rights of way and watercourse by the nonperformance of conditions annexed to the grant.-If a right of way is granted to another, he contributing and paying his rateable share and proportion of the expense of repairing the way, and repairs become necessary, and the way is repaired by the grantor, and the grantee refuses to pay his rateable proportion of the expense, his right of way will become forfeited, or will be suspended, until the accomplishment of the condition annexed to the grant; but the grantee has the right to use the way without paying anything until repairs become necessary, and the cost of them has been ascertained, and the grantee has refused to pay his share of the cost(q). If

(m) Reg. v. Chorley, 12 Q. B. 519. Williams v. Eyton, 27 Law J., Exch. 176; 2 H. & N. 771. Corning v. Gould, 16 Wend. 531. Crain v. Fox, 16 Barb. (N. Y.) 184.

(n) Abbott v. Stewartstown, 47 N. H. 228. New York Life Insurance and Trus tCo. v. Milnor, 1 Barb. Ch. 353.

(nn) Duncan v. Louch, 6 Q. B. 904.

(0) Holmes v. Goring, 2 Bing. 76. Viall v. Carpenter, 14 Gray (Mass.) 126. New York Life Insurance and Trust Co. v. Milner, 1 Barb. Ch. 353. Pierce v. Selleck, 18 Conn. 321. Holmes v. Seeley, 19 Wend. 505. Collins v. Prentice, 15 Conn. 39. Lawton v. Rivers, 2 M'Cord, 445. Scriven v. Gregorie, 8 Rich. (Law.) 158. Nichols v. Luce, 24 Pick. 102. Seeley v. Bishop, 19 Conn. 128. Gayetty v. Bethune, 14 Mass. 49. Alley v. Carleton, 29 Texas, 78.

(p) Pearson v. Spencer, 1 B. & S. 584. Where the owner of a right of way by necessity has put an end to the right by acquiring another right of way over his own land to the same highway, he cannot again revive it by conveying away that land. Baker v. Crosby, 9 Gray (Mass.) 421. When the title to the dominant and servient estates unite in a common owner easements of necessity are merged and lost; and on separate conveyances of the estates by the common owner, such casements are not revived, nor deemed to have existed during the time the two estates were held by the same person, but are re-created by the conveyance of the estate separately, on the principle that whoever grants a thing impliedly grants whatever may be necessary for its beneficial enjoyment. Miller v. Lapham, 44 Vt. 416. Grant . Chase, 17 Mass. 443, 448. Post, p. 170.

(g) Duncan v. Louch, 6 Q. B. 904.

1

a right of watercourse is granted, with certain limitations and restrictions, and the grantee exceeds his limited right, and refuses to conform to the restrictive conditions, he loses his right altogether, until he makes his enjoyment of it conformable to the conditions of grant(r).

183 Disuse of right to water.-A person who has a prescriptive right to a flow of water to a pond or well does not lose his right merely because he has ceased to use his pond or well, and has allowed it to become choked with weeds(s). But, if having a right to foul water he lies by, and allows other persons to incur expense, which would be useless, if his right to foul the water continued, he must be taken to have bandoned it(t).

184 Merger and extinguishment of easements and servitudes by a unity of ownership of the dominant and servient tenements.-Easements, profits à prendre, and servitudes, may become merged and extinguished in the general rights of property, when the land benefited by, and the land burthened with, the easement, profit, or servitude, pass into the hands of one common proprietor, or when the person possessed of the incorporeal right becomes the owner of the land over or upon which the right is exercised, for a man cannot, strictly speaking, have an easement in his own land(u). Thus, if one man erects on his own land a building which wrongfully darkens the windows of the adjoining proprietor, and afterwards purchases the house with the darkened windows, the tort is thenceforth purged by the unity of ownership, and the easement or privilege of enjoying the unobstructed access of light and air annexed to the darkened windows is extinguished, for, both houses being in the hand of one person, he may deal with them as it seemeth best to him. If, therefore, he afterwards grant or conveys the house with the darkened windows, the grantee cannot lawfully complain of the nuisance, and has no remedy for its abatement. If one of two houses, which belonged to two different proprietors, has been built so as wrongfully to overhang the other, and they afterwards come into one hand, the wrong is now purged; so that if the houses come afterwards again into several hands, yet neither party can complain of the wrong done before(x).

The obligation imposed in certain cases by custom, prescription, or

(r) Cawkwell v. Russell, 26 Law J., Exch. 34.

(8) Hale v. Oldroyd, 14 M. & W. 792; Co. Litt. 114 b, ante, p. 159.

(t) Crossley v. Lightowler, L. R., 3 Eq. Ca. 279; 2 Ch. App. 478.

(u) Ante, p. 159-60.

(2) Robins v. Barnes, Hob. 131; Rolle's Abr. CUSTOMS (D.), pl. 7. Battishill v. Reed, 18 C. B. 696

contract, upon the owner of an estate to maintain a fence for the benefit of the owner or occupier of the adjoining land, is an obligation in the nature of a servitude. Where, therefore, adjoining lands, which have once belonged to different persons, one of whom is bound to repair the fences between the two, afterwards becomes the property of the same person, the pre-existing obligation to repair the fences is destroyed by the unity of ownership. And where the person who has so become the owner of the entirety afterwards parts with one of the two closes, the obligation to repair the fences will not revive unless express words be introduced into the deed of conveyance for that purpose(y).

If a man who has a right of common appurtenant (ante, p. 1 } becomes himself the owner of the land over which the right of common extends, the incorporeal right is merged in the legal ownership, and the land is discharged, for a man cannot have common in his own land(2); and if the owner afterwards grants the land to which, before the extinguishment, the right of common was attached, with all easements and profits thereunto "appertaining" or "belonging," these words will not be sufficient to revive or re-create the right(a).

However, if a copyhold tenement, to which a right of common is annexed, becomes vested in the lord by forfeiture, the right of common is not extinguished; it remains by custom annexed to the customary tenement; and though the right is in abeyance whilst the estate remains in the lord, it is re-created or revived by a re-grant of the estate as a copyhold tenement cum pertinentiis. If, indeed, the lord grants the fee to a copyholder, the estate can never again become a copyhold estate, and the right of common is extinguished, "for the common first used was gained by custom, and annexed to the estate, and is lost with it"(b).

185 What sort of unity of ownership is essential to the extinguishment of easements. For the extinguishment of a prescriptive right by unity of ownership and possession "it is requisite that the party should have an estate in the lands a quâ, and in the lands in quâ, equal in • duration, quality, and all other circumstances"(c). "If," observes Alderson, B., "I am seized of freehold premises, and possessed of

(y) Bayley, J., Boyle v. Tamlyn, 6 B. & C. 337.

(2) Nelson's case, 3 Leon. 128. Saunders v. Oliffe, Moore, 467. Tyringham's case, 4 Rep. 38a. (a) Clements v. Lambert, 1 Taunt. 204. Grymes v. Peacock, 1 Bulstr. 17.

(b) Badger v. Ford, 3 B. & Ald. 155. Massam v. Hunter, Yelv. 189.

(c) Rex v. Hermitage, Carth. 241. See Ivimey v. Stocker, L. R., 1 Ch. App. 470-8; Co. Litt. 114 b, ante, p. 159-60; Tyler v. Hammond, 11 Pick. 193; Bradley's Fish Co. v. Dudley, 37 Conn. 136; Ritger v. Parker, 8 Cush. 145.

leasehold premises adjoining, and there has formerly been an easement enjoyed by the occupiers of the one as against the occupiers of the other, while the premises are in my hands the easement is necessarily suspended, but it is not extinguished, because there is no unity of seizin; and if I part with the premises, the right, not being extinguished, will revive"(d). If a lessor of the dominant tenement takes a week's tenancy of the servient tenement, he does not lose all the servitudes he would only lose the statutory mode of establishing them; and he would only lose that, when it could be said that at the time of granting the lease he could grant the servitude(e).

Easements of necessity are not extinguished by unity of ownership, and therefore, a necessary way over land continues, notwithstanding a unity of ownership of the dominant and servient tenements, and a subsequent conveyance of such tenements to separate proprietors(f); but this is not the case with regard to mere easements of convenience, which are used from time to time only, such as the right of taking water from a pump(g).

186 Revival and re-creation of easements and servitudes which have been extinguished or suspended by unity of ownership.-When an easement or servitude has become extinct by reason of the ownership of the dominant and servient estates having become centred in the same person, and he again conveys away that estate to which the easement or servitude has belonged, the general rule is, that if he merely grants such estate with the appurtenances, the easement is not revived, unless it is a visible apparent easement, manifestly necessary for the commodious occupation and enjoyment of the property which is conveyed(); but if he grants it with all easements, etc., there with used and enjoyed, that operates as a revival; and any other words clearly intended to have such an effect will operate in the same manner(i). If a right of way has become extinguished by unity of ownership of the dominant and servient tenements, and the messuage for which the right of way was anciently used is subsequently severed from the land ⚫ over which the way passed, and is conveyed "with all ways, roads, rights of road, paths, and passages thereto belonging, or in anywise

(d) Thomas v. Thomas, 2 C. M. & R. 41.

(e) Bramwell, B., Warburton v. Parke, 26 Law J., Exch., 298; 2 H. & N. 64.

(f) Packer v. WeHstead, 2 Sid. 111. Pearson v. Spencer, 1 B. & S. 584. See however, Baker v. Crosby, 9 Gray (Mass.) 421; Miller v. Lapham, 44 Vt. 416; Grant v. Chase, 17 Mass 443, 448; Du Val v. Du Val, 21 Md. 149.

(g) Polden v. Bastard, 32 L. J., Q. B. 372; L. R., 1 Q. B. 156.

(h) Suffield v. Brown, ante, p. 102.

(i) See per Kelly, C. B., in Langley v. Hammond, L. R., 3 Exch. 168.

appertaining," the extinct right of way is not revived, and does not pass by the conveyance of the house, unless it is a way of necessity(k); "for nothing is more clear than that, under the word appurtenances,' according to its legal sense, an easement which has become extinct, or which does not exist in point of law by reason of unity of ownership, does not pass. If the grantor wishes to revive or create such a right, he must do it by express words, or introduce the terms 'therewith used and enjoyed,' in which case easements existing in point of fact, though not existing in point of law, would be transferred to the grantee"(). If, therefore, the occupiers of farm A have a right of way, not being a way of necessity, over farm B, and both farmis come into the hauds of one and the same owner, and afterwards the two farms are again severed and granted to two different grantees, the extinct right of way will not be revived and re-created unless the grantor uses language to show that he intended to create the easement de novo(m). Nor will the use of the words "therewith used and enjoyed" operate to pass a way, which was previously only used by the grantor for the more convenient occupation of both tenements, and which therefore never became attached to either(n).

But there is a distinction between what are termed discontinuous easements, such as rights of way, and continuous easements, such as drains and watercourses; for if the owner of a mill, who has a right of passage for water to his mill through the land of the adjoining landowner, purchases such adjoining land, and becomes the owner both of the mill and of the land over which his watercourse extends, and afterwards alienes the mill, the watercourse and incorporeal right to the free passage of the water to the mill are not extinguished, but pass with the mill as appendant and appurtenant thereto. So if a man hath a dye-house, and there is water running thereto, and afterwards he purchaseth the land upon which the stream runs, and subsequently re-sells such land, his original right to the watercourse remains(0). But if a man hath a stream of water which runneth in a leaden pipe through the adjoining land, and he buys the land where the pipe is, and cuts the pipe and destroys it, the watercourse is thenceforth ex

(k) Barlow v. Rhodes, 1 Cr. & M. 488; Wardle v. Brocklehurst, ante, p. 103. But see Watts v. Kelson. L. R., 6 Ch. App. 166.

(1) Plant v. James, 5 B. & Ad. 794. James v. Plant, 4 Ad. & E. 764. Bradshaw v. Eyre, Cro. Eliz. 570. Wardle v. Brocklehurst, ante, p. 104. Baird v. Fortune, 4 Macq. 127. (m) Worthington v. Gimson, 29 Law J., Q. B. 117. Daniel v. Anderson, 31 Law J., Ch. 610. Pearson Spencer, 1 B. & S. 571. Pheysey v. Vicary; Dodd v. Burchall, ante, p. 104.

(n) Langley v. Hammond, L. R., 3 Exch. 161. See Gayford v. Moffat, L. R., 4 Ch. App. 133. (0) Sury v. Pigot, Poph. 172; Palm. 444.