ownership of which it is appendant, and the use of such owner and his servants and agents will regulate the right in those cases where an express grant cannot be produced (b).

(b) Cowling v. Higginson, 4 M. & W. 245.

158; McDonald v. Lindall, 3 Rawle, 492; Ogden v. Grove, 38 Penn. St. 487; Turnbull v. Rivers, 3 McCord, 131.

That the way which the grantee has is more inconvenient than to cross the grantor's land does not change the rule. Ib. But see Pettingill v. Porter, 8 Allen (Mass.), 1, as to a case where it would require unreasonable labor and expense to make such other way.

A grantor who sells and conveys land which entirely surrounds a parcel which he retains, will have a right of way by necessity over the lands so sold. Brigham v. Smith, 4 Gray (Mass.), 297.

But if land is bounded on one side by a highway, and on all other sides by the lands of other persons, and the owner sells the land next to the highway, he will have no right of way by necessity over this parcel so sold, if he has a right of way by prescription over the lands of one of such other owners by which he may reach the highway. Leonard v. Leonard, 2 Allen (Mass.), 543. So a lease of a portion of building, reserving a part of it to which there is access without going through the leased portion, will not give the lessor any implied right of way to the reserved part by going through the rented portion. Ramirez v. McCormick, 4 Cal. 245.

A right of way by necessity is limited to the necessity, and it ceases whenever from any cause such necessity ceases to exist. Abbott v. Stewartstown, 47 N. H. 258; Baker v. Crosby, 9 Gray (Mass.), 421; Viall v. Carpenter, 14 id. 126; New York Life Ins. & Trust Co. v. Milnor, 1 Barb. Ch. 352; Peirce v. Selleck, 18 Conn. 321.

When a right of way by necessity is inconsistent with a grant, it will not exist, as in a case where land is conveyed for a specific purpose, and a way across it would defeat that purpose. Seeley v. Bishop, 19 Conn. 134. An owner of land who has a right of way for himself, his tenants and occupants across the lands of another person, may, by a sale of the timber on his land, transfer to the buyer the right to use that way for the removal of the timber. Bartlett v. Prescott, 41 N. H. 493.

If the owner of the servient tenement, over which a right of way exists, acquires the fee simple title to the dominant tenement, the right of way is extinguished; but if he acquire a life estate, as an estate for life, it is not extinguished. Pearce v. McClenaghan, 5 Rich. 178. A right of way, appurtenant to land, over and upon adjoining land, is not extinguished by the vesting of both estates in the same person as a mortgagee until both mortgages are foreclosed. Ritger v. Parker, 8 Cush. (Mass.) 145.

A right of way may be deemed abandoned when the facts are such as to show an intention to abandon it, as by fencing up and ploughing the road, etc. Crain v. Fox, 16 Barb. 184. But this is not so where the use is discontinued merely for the reason that the party has a more convenient way, even though fenced up for seven years. Hayford v. Spokesfield, 100 Mass. 491.

Proof of mere non-user of a way created by deed, for a period less than twenty years, without proof of adverse enjoyment by the owner of the land, is not sufficient proof of an abandonment of the right. Bannon v. Angier, 2 Allen (Mass.), 128.

A right of way acquired by deed can never be lost by non-user; to be thus lost it must have been acquired by use. Smyles v. Hastings, 22 N. Y. (8 Smith) 217, 224; 24 Barb. 44. See also Arnold v. Stevens, 24 Pick. 106.

But evidence of an executed oral agreement between the owners of the dominant and the servient tenements to discontinue an old way and substitute a different one is competent evidence of a surrender of the old right of way. Pope v. Devereux, 5 Gray (Mass.), 409; Lawton v. Tison, 12 Rich. Law (S. C.), 188.

The grantee who has such a right of way is bound to keep it in repair, and if it becomes impassable, he is not entitled to pass over other lands of the grantor. Holmes v. Seely, 19 Wend. 507; Miller v. Bristol, 12 Pick. 550. Where there is a right of way over land, the owner of it may use it in any manner he pleases, if it does not interfere with the right of way. Atkins v. Bordman, 2 Metc. (Mass.) 457.

The right of lateral support to land by the adjacent land of a different owner is an easement which exists as a natural accessory of the soil, and may be Right of lateral extended to a house if properly acquired. If a man digs upon support. his own ground to such an extent that the land or an ancient house of his neighbour falls, he is liable to an action or a suit in equity to restrain him (c). (211) There may also be an easement by which the owner of the servient tenement is bound to keep in repair a fence or party wall (e). (212)

[*44]

The easement which remains to be considered is that by which a nuisance may be legalised. Thus if a man carry on a trade which causes offensive noises, Legalisation of smells, smoke, or other similar annoyances to his neighbours, he nuisances. may, where such an easement has been duly acquired, be free from liability for the consequences; but the conditions under which easements. are acquired must be strictly complied with (f); (213) and, moreover, the trade must be a lawful one, and calculated to be for the public benefit, and

(c) Wilde v. Minsterley, 2 Roll. Abr. 564; Harris v. Ryding, 5 M. & W. 60; Hunt v. Peake, John. 705; Bibby v. Carter, 4 H. & N. 153. See also Backhouse v. Bonomi, 9 H. L. Ca. 503; Caledonian Railway Co. v. Sprot, 2 Macq. 448; and Caledonian Railway Co. v. Belhaven, 3 Macq. 56; Elliot v. North Eastern Railway Co., 10 H. L. 333. If the house be of recent erection, since the pressure of the house necessarily increases the liability of the ground upon which it is placed falling in, there would be no such action; Wyatt v.

Harrison, 3 B. & Ad. 871; Partridge v. Scott,
3 M. & W. 220; Stansell v. Jolland, 1 Selw.
N. P. 457; Dodd v. Holme, 1 Ad. & Ell. 493;
Nicklin v. Williams, 10 Exch. 259.

(e) Sury v. Pigot, Poph. 166, s. c. Noy, 84; 3 Bulstr. 339; Boyle v. Tamlyn, 6 B. & Č. 329, 337; Matts v. Hawkins, 5 Taunt. 20; Cubitt v. Porter, 8 B. & C. 257; Bradbee v. Christ's Hospital, 4 M. & Gr. 714, 716.

(f) Stockport Waterworks v. Potter, 3 H. & C. 300, s. c. 31 L. J. Exch. 9; Aldred's case, 9 Rep. 59 a; Bradley v. Gill, 1 Lutw, 69.

(211) The owners of adjoining lands may claim as a legal right the lateral support of the lands of each other while the land is in its natural state, and not burdened by the weight of buildings or other structures. And while each owner may dig upon his own land as he pleases, he is still prohibited by law from digging so near to his neighbor's lands, that they shall fall into the pit or excavation made by him. Farrand v. Marshall, 21 Barb. 409; Austin v. Hudson River R. R. Co., 25 N. Y. (11 Smith) 334, 345; McGuire v. Grant, 1 Dutch. 356, 368; Foley v. Wyeth, 2 Allen (Mass.), 131; Beard v. Murphy, 37 Vt. 101.

But if an additional weight, such as a wall or a building, is erected upon lands, and it causes the land to slide or fall into an excavation made in the adjoining lands, when this would not have been the case if the lands were in their natural state, it is held by several cases that no action lies against the adjoining owner for properly digging upon his own soil. Ib.; Thurston v. Hancock, 12 Mass. 226; Lasala v. Holbrook, 4 Paige, 169; Richardson v. Vermont Central R. R. Co., 25 Vt. 465; Charless v. Rankin, 22 Mo. 566, 571; Farrand v. Marshall, 19 Barb. 380.

If, however, the owner of two lots of land conveys one of them upon which a house is standing, he cannot dig upon the other lot in such manner as to affect the house, because in that case it is entitled to the support of the latter lot. McGuire v. Grant, 1 Dutch. 356, 365; United States v. Appleton, 1 Sumn. 492, 500; Eno v. Del Vecchio, 4 Duer, 53.

(212) The right to support from a party wall is well settled in this country. Eno v. Del Vecchio, 4 Duer, 53; 6 id. 17; Evans v. Jayne, 23 Penn. St. 36; Brondage v. Warner, 2 Hill, 145; Partridge v. Gilbert, 15 N. Y. (1 Smith) 601.

(213) A right of way to take wood from a wood lot does not authorize the use of the land for other purposes after the wood has been taken off. Atwater v. Bodfish, 11 Gray (Mass.) 152. So the right to corrupt a stream to a limited extent does not authorize one to corrupt it in a different manner, or to a greater extent. Holeman v. Boiling Spring Co., 1 McCarter, 346. And the use of a water-way for the purpose of taking goods to a tavern does not authorize the use of the way for other occupants of the land and for other purposes than the occupancy of the tavern. Bower v. Hill, 2 Bing. (N. C.) 339.

must be carried on in a proper and reasonable manner (g), and in a proper place (h). The existence of nuisances in the neighbourhood which have been legalised by prescription, does not justify an additional nuisance even of the same kind (i). But a slight change in the character of a nuisance arising from improvements of mode of manufacture and in the ordinary course of business, but not increasing the nuisance, will not cause the right to be lost (k).

unlike ease

ments.

*There are some other rights connected with the enjoyment of prop[*45] erty not unlike easements, though distinguishable from them in Other rights not this, that they all fall under the general right of an owner of property to enjoy that property without interference by others. Thus the support of the surface of land by subjacent minerals belonging to a different owner is not to be considered as an easement of the surface; yet if the mineowner should work his mines so that the surface should sink, there would arise a cause of action or suit in respect of the subsidence (1), and this notwithstanding that the mines were worked skillfully (m). If a house falls in consequence of the improper and irregular pulling down of a neighbouring house, there would be a cause of action (n), although in the absence of express grant there is no liability on the part of the neighbouring owner to afford the lateral support of his building (0).

Easements of the various kinds we have described may, when acquired, be lost or extinguished in various ways, which may here be shortly indicated. Of Extinction of course a formal release by the deed of the owner of the dominant easements. tenement will effectually put an end of all claims upon the servient tenement. Also acts of parliament, such as enclosure acts, may obviously deal with these as with all other rights, and so end them. On these modes of extinguishment no comment is required.

[*46] But, inasmuch as most easements are an infringement of the first principles of property as regards the servient tenements, the law is not slow to re-establish that right of property in its integrity, and therefore deduces from indirect circumstances the determination of the infringement. If, therefore, the owner of the dominant tenement ceases to take advantage of his rights, and the intention to abandon them can be inferred, the law declares that they cannot afterwards be resumed (p).

(g) Com. Dig. tit. Action on the case for Nuisance, C.; Vin. Abr. tit. Nuisance; Cole v. Barlow, 4 C. B. N. S. 434; Stockport Waterworks v. Potter, 3 H. & C. 300, s. c. 31 L. J. Exch. 9.

(h) If the character of the place changes after the easement is acquired through houses being built, the easement would of course remain.

(i) St. Helen's Smelting Co. v. Tipping, 11 H. L. Ca. 642.

(k) Baxendale v. M'Murray, L. R. 2 Ch. 790. (1) Harris v. Ryding, 5 M. & W. 60; see Backhouse v. Bonomi, 9 H. L. 503; Wakefield v. Duke of Buccleugh, L. R. 4 Eq. 613; Caledonian Railway v. Sprot, 2 Macq. 449; Nick lin v. Edwards, 10 Exch. 259. In a grant there might be a reservation of right to cause subsidence of surface soil; Rowbotham v. Wilson, 8 H. L. Ca. 384; overruling some of the dicta in Hilton v. Lord Granville, 5 Q. B. 701; and see Bell v. Wilson, L. R. 1 Ch. 303.

(m) Humphries v. Brogden, 12 Q. B. 739; Smart v. Morton, 5 E. & B. 30.

(n) Walters v. Pfeil, Mood. & Malk. 362. (o) Peyton v. Mayor of London, 9 B. & C. 725; Chadwick v. Trower, 6 Bing. N. C. 1; Massey v. Goyder, 4 Car. & P. 161; Solomon v. Vintners' Co., 4 H. & N. 585. As to where several houses requiring mutual support have been built by the same owner, see Richards v. Rose, 9 Exch. 218.

(p) Liggins v. Inge, 7 Bing. 682; Luttrel's case, 4 Rep. 86; Lawrence v. Obee, 3 Camp. 514; Moore v. Rawson, 3 B. & C. 332; Stokoe v. Singers, 8 El. & B. 31. The intention to abandon must be clearly established: see Hale v. Oldroyd, 14 M. & W. 789; Lorell v. Smith, 3 C. B. N. S. 120; Ward v. Ward, 7 Exch. 838; and see R. v. Chorley, 12 Q. B. 515; Crossley v. Lightowler, L. R. 3 Eq. 279, s. c. on appeal, 2 Ch. Ap. 478; which case was very fully argued, both before the vicechancellor and on appeal.

So, also, if the owner of the dominant tenement makes altérations therein, so that the easement cannot be enjoyed in the same way as previously, but necessarily imposes a greater burden upon the servient tenement, the easement will be lost (g); or if he allows an act to be done adverse to the easement, thereby indicating an abandonment of his right, it will be at an end (r).

From similar principles it follows that where an easement of an artificial character is imposed upon the servient tenement for the convenience of the dominant tenement, the possession of both by one owner puts an end to the easement (s), so that it will not revive on the *severance of the posses[* 47] sion (t); because, during such unity of possession the enjoyment of the easement has again become a part of the ownership of the servient tenement, and "one who hath an interest as owner of the land cannot have a particular interest in the same land also." Unity of possession does not, however, destroy an easement such as a watercourse which exists by nature (u), or one which is of absolute necessity (v) ; nor in any case unless the interests in the two tenements are equal (x).

III. Rent.

III. The word rent or render, reditus, signifies a compensation or return given for the possession of an hereditament (y). The following requisites are necessary to constitute a good legal rent. It must be a profit. It is usually money, though not necessarily so, for spurs, capons, horses, corn, pepper, and other matters may be, and in old times frequently were, rendered by way of rent (z). It may also consist of services or manual operations, as to plough so many acres of ground, to render military service, which the law in ancient times looked upon as profits. In modern times, however, these services have, for obvious reasons, fallen into disuse.

Its characteristics.

The profit, of whatever nature, must be certain, or capable of being reduced to certainty by either party. It must issue periodically, but not necessarily every year, for it may be validly reserved every second, third, or *fourth [*48] year (a), though, as it is to be produced out of the natural profits of lands and tenements (b), and paid as a recompense for being permitted to hold or enjoy them, and as such natural profits in most cases (c) arise, or are renewed annually, it ought therefore to be reserved yearly. It must issue out of the thing granted, and not be part of the land itself, or even of the annual produce of the land, as the vesture or herbage; this requisite distinguishes a

(q) Luttrel's case, 4 Rep. 86; Cherrington v. Abney, 2 Vern. 646; Martin v. Goble, 1 Camp. 320. See Tapling v. Jones, 11 H. L. 290, where the rule stated in the text is fully recognized, although some apparent applications of it in the previous cases of Renshaw v. Bean, 18 Q. B. 112: Hutchinson v. Copestake, 9 C. B. N. S. 863; Weatherley v. Ross, 1 H. & M. 349, were overruled.

(r) Carr v. Foster, 3 Q. B. 581.

(8) Bract. lib. 4, 221; Hendon and Crouche's case, 36 Eliz. Rot. 1332, Dyer, 295; Sury v. Pigot, Poph. 166, s. c. Noy, 84; 3 Bulstr. 339. (t) Whalley v. Thompson, 1 Bos. & Pul. 371; Pheysey v. Vicary, 16 M. & W. 484.

(u) Sury v. Pigot, ubi sup.

(c) Jordan v. Atwood, 1 Roll. Abr. 939; Pheysey v. Vicary, 16 M. & W. 484.

(x) Thomas v. Thomas, 1 Cr. M. & R. 41; R. v. Inhabitants of Hermitage, Carth. 239; Canham v. Fisk, 2 Cr. & J. 126. (y) Co. Litt. 144. (z) Ib. 142. Where it is intended that the rent should be nominal, but that a leasehold tenancy should be created, it is usual at the present day for the rent reserved by the les sor to be a peppercorn. (a) Co. Litt. 47.

(b) Clun's case, 10 Rep. 127.

(c) Not in all cases, e. g., plantations of wood do not yield profit annually, but are usually cut at intervals of a few years, Browning v. Beeston, Plowd. 131; Co. Litt. 142.

reservation of rent from an exception in the grant, which is always of part of the thing granted (d). An exception to this exists in the case of mines, quarries, &c., where the rent or royalty consists commonly of a fixed proportion of the ore raised or stone gotten, which, it is to be observed, is a part of the land itself (e).

Lastly, with some few exceptions, the thing granted, subject to a reservation of rent, must be lands and tenements corporeal, to which the grantor or owner of the rent may have recourse to distrain. A rent cannot be reserved out of an advowson, a common, an office, a franchise, or other incorporeal hereditament (f), nor out of personal chattels (g). An attempt to create a rent of any of these *things may create by way of contract a valid burden upon [*49] their possessor, so that he may be liable to pay the annuity as a debt, yet

it in no way affects the property so as to continue a burden upon it in the hands of an alienee without notice of the contract: it is no legal rent in contemplation of law, and the ordinary legal remedy of distress does not apply.

The exceptions referred to are as follows: a rent may be reserved out of a reversion or remainder to which rent is incident (h); this, though incorporeal, will become corporeal, and then the remedy of distress will apply, so as to recover all arrears. A rent also may be reserved out of the herbage of land, because the cattle upon the land may be distrained (i). Again, tithes may be granted subject to a rent; this arises from statutory enactment (k). Lastly, the crown is subject to no restriction as to the reservation of rent, having by its prerogative power to distrain upon all lands of its lessee (7).

Different kinds of rent.

There were at common law three kinds of rents: rent-service, rent-charge, rent-seck (m). Statutory changes in the law and the disuse of feudal customs have rendered this division of rents of small practical importance. It is nevertheless necessary for some purposes, and at least interesting, to have some knowledge of their distinctions, which are as follows: Rent-service is that which is due from a tenant who holds his lands upon condition of fealty (or taking the feudal oath of fidelity) and payment of a certain rent, and either with or without the performance of other Rent-service. services. If, for instance, a tenant of a manor holds his land upon the condition of rendering to the lord of the manor the services customary in the manor, and such as ploughing the lord's land and paying 5s. rent, such a *rent is a rent-service. (214) It is closely connected with the feudal [*50] system of tenure, which we shall hereafter discuss. Rent-service there

(d) Co. Litt. 142; see also Wickham v. Hawker, 7 M. & W. 63; Doe d. Douglas v. Lock, 2 A. & E. 705; Durham and Sunderland Railway Co. v. Walker, 2 Q. B. 940; Pannell v. Mill, 3 C. B. 625.

(e) Campbell v. Leach, Amb. 740; Buckley v. Kenyon, 10 East, 138; R. v. Earl of Pomfret, 5 M. & S. 139; R. v. Inhabitants of St. Austell, 5 B. & Al. 693; R. v. Westbrook, 10 Q. B. 178.

(f) Co. Litt. 144; Jewel's case, 5 Rep. 3, a. See as to this case, Bally v. Wells, 3 Wils. 25; Doubitofte v. Curteene, Cro. Jac. 452.

(g) Spencer's case, 5 Rep. 176; Newman v. Anderton, 2 B. & P. New R. 224; where a

(214) See Van Rensselaer v. Hays, 19 N. Y. (5 Smith) 68; Cruger v. McLaury, 41 N. Y. (2 Hand) 219, 227, n.; Central Bank of Troy v. Heydorn, 48 N. Y. (3 Sick.) 260.