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means of transporting and distributing gas. It had no value. for any other purpose. The material belonged to the company, and it had a clear right to remove the pipe from its bed and utilize it in whatever manner might seem best. The proceedings under the right of eminent domain had not affected the title to the pipe, or imposed any obligation on the company to maintain the line any longer than its own interests might dictate. The sole object and effect of the appropriation was to secure the right to transport natural gas across the lands of the plaintiffs in the manner provided for by the act of 1885. The damages were assessed with reference to the fact that the company acquired thereby a right to enjoy the easement indefinitely; yet if it happened that the supply for which the pipe line afforded the means of transportation should cease, it was within the knowledge and contemplation of the parties that the line would become useless, and that its abandonment must follow. In such a contingency the company may surrender the easement for which it has paid, and remove its pipes from the land. This is in ease of the owner. A right of entry exists for this purpose, and if the removal is conducted with a due regard to the interests and rights of the landowner, there is no ground for complaint on his part that the easement has been surrendered by a removal of the material that has been "buried" in his soil. But if the work has not been properly done, if the trench is left open or but partially filled, if the growing crops or grass are broken down or destroyed, or the turf unnecessarily cut into or injured, the owner has a right to complain. The right of entry was incident to the laying and care of the line while the easement was being enjoyed, and when its enjoyment was no longer possible it was an incident to the right to withdraw from the land and surrender the privilege acquired under the right of eminent domain. But neither while the line was in use nor after its use had ceased did the right of entry authorize the doing of any substantial injury to the owners beyond the burying or removal of the pipe in the best way practicable. If it was to the interests of the company to remove its pipe in wet weather, and in doing so to drive over the plaintiffs' fields on the dryest routes it could find, thereby injuring the crops or grass, there is no reason why it should not pay for the injury so done. The

measure of damages to which the plaintiff is entitled is the extent of the injury done him by the removal of the pipes at an improper time, or in an improper manner. The nature and extent of the easement permitted the cultivation of the surface over the pipe line in subordination to the rights of the company to enter upon it whenever such entry became necessary. If, because of an exercise of the right of entry incident to the easement, growing crops were disturbed, this was damnum absque injuria as to the surface necessarily occupied for the purposes for which the entry was properly made. An entry for the purposes of removal stands however upon somewhat different grounds. It is not made because of the necessities of transportation, but because they no longer exist. It is therefore the duty of the company to make the removal at the time and in the manner best adapted to the purpose and least harmful to the landowner. It is the duty of the company, upon a surrender of its easement, to fill the trench it has opened so as substantially to restore the surface of the land, and its failure to do so is just ground of complaint. It should make compensation for any actual injury to growing grain or grass and, if the field be in meadow, for any substantial injury to the turf beyond the mere opening and filling of the trench in which the pipe lay. Subject however to the limitations now indicated it has the right to enter and remove its pipe without being liable as a trespasser therefor. The judgment is reversed that the proper measure of damages may be given to the jury, and a venire facias de novo is awarded.

Sec. 227. Abandonment of easement acquired for public use.-Removal of improvements. In Lewis on Eminent Domain, § 598, the author says: "Where only an easement is taken and the public use is abandoned, the land reverts to the original owner, but he acquires no right to any accessions which have been placed upon it by the state or its agents. Where a canal was abandoned by the state, it was held that its assignee might remove the materials in the locks and other works, Corwin v. Cowan, 12 O. St. 629; so in another case it was held that a railroad company might remove stone piers from land it proposed to abandon. Wagner v. Cleveland & Toledo R. R. Co., 22 O. St. 563 (10 Am. Rep. 770)." In this last case the court say: “The use of the strip of land on which the piers were built, was granted to the railroad company for the purpose of constructing part of a continuous line of railroad which it was authorized to build and operate. The piers were as much a part of the road as the bridges they were

designed to support, or the rails and ties on the road. The use the road was intended to subserve, and to which alone it was adapted, was the transportation of persons and property. The road and all its parts was merely accessory to this business, and were put on the land for this purpose, and not as accessions to the land over which the railroad was to pass. The part of the road built on the premises of the plaintiff in error, disconnected from the other parts of the road, could not be operated, and would be useless as a railroad. Nor could it serve any useful purpose as an appurtenance to the land on which it was built. It is possible that in some instances, by changing the character of the structure and diverting it to other purposes than those for which it was designed, it might afford some incidental benefit to the lands; but, generally, the value of the structure would consist in what it would be worth disconnected from the land as personal property. Such, at least, appears to be the character of the structures now in question. If the piers were the property of the land owner, they became his as they were built, the company only retaining the right to use them in operating its road. We do not understand such to be the effect of the agreement of the parties. The railroad company aqcuired an easement in the land to construct and use its road thereon. It did not bind itself to the land owner, either to build or maintain the road; and it could change the character of the structure at pleasure. Nor do we perceive any good reason why, in the act of building it should lose its right of property in the structure when built, or in the materials of which it was composed. The land owner retained his land subject to the easement, and the company owned the easement and the structures it was designed to support. We attach no importance to the fact that the company, at the time of the attempted removal of the stone, had abandoned the idea of completing the road. If the piers had not before that time become the property of the land owner the abandonment of the enterprise would not make them his. The right to abandon the purpose of completing the road, it seems to us, carries with it the right to remove the structures put on the land solely as a part of the road equally as the right to construct and use the road, carries with it the right to change, remove and renew the materials of which it is composed." And in support of its holding the court cites, Northern Central R. W. Co. v. Canton Co., 30 Md. 347.

EPITOME OF CASES.

Sec. 228. As to what constitutes an easementUse by owner. The right of a railroad company to discharge ditches for draining its right of way upon adjacent lands, is in the nature of an easement and damages should be awarded to the servient owner accordingly. Beach v. Wil mington & W. R. Co., 120 N. C. 498 (26 S. E. Rep. 703). A perpetual easement to overflow land does not pass by the parol acceptance of a parol award of damages made under a

parol agreement for arbitration where it does not appear that the award was ever paid or any receipt given for the damages. Wilmington Water-Power Co. v. Evans, 166 Ill. 548 (46 N. E. Rep. 1083). The owner of an easement in the land of another is not bound to use it in the particular manner prescribed by the instrument which creates it. He may use it in a different manner if he so desires, provided he does not, in doing so, increase the servitude, nor change it, to the injury of the owner of the servient tenement. Tallon v. Mayor of City of Hoboken, 60 N. J. L. 212 (37 Atl. Rep. 895).

Sec. 229. Creation by grant. An easement may be created by a covenant in a deed and the benefit of it may be claimed by subsequent grantees and occupants. Morton v. Thompson, 69 Vt. 432 (38 Atl. Rep. 88). A right of way created by grant is not lost by a temporary failure to locate and use a part of it. Quigley v. Baker, 169 Mass. 303 (47 N. E. Rep. 1007). Where one owning a tract of upland and also a separate tract fronting on the sea, conveyed to another and his heirs, by warranty deed, the tract of upland, and after describing it by metes and bounds, continued as follows: "Together with the free use and full right of sufficient land on my sea front for bathing purposes, with the right to enter thereon, erect bath houses, and use the same, free of charge, undisturbed at any time," it is held that the deed gave the grantee an easement of way over the grantor's land to the sea, but the privilege in regard to the erection and use of bath houses was a license revocable by the death of the parties or by a subsequent conveyance. Eckert v. Peters, 55 N. J. Eq. 379 (36 Atl. Rep. 491). Negative easements, by which the owner of lands is restricted in their use in favor of other lands, not owned by him, can only be created by covenant or by exception, limitation, or condition under which he derives his title, and a covenant creating such restrictive easements must be shown by apt words and words which fairly interpreted show a clear intent to create such an easement. Goodwin v. Hamersley, 69 Conn. 115 (36 Atl. Rep. 1065). For construction of particular grants of easements for a way, see Morton v. Thompson, 69 Vt. 432 (38 Atl. Rep. 88); Botsford v. Wallace, 69 Conn. 263 (37 Atl. Rep. 902).

Sec. 230. Creation by executed parol license. An executed parol license may become an easement upon the land of another and may embrace a servitude on one estate in favor of another. Joseph v. Wild, 146 Ind. 249 (45 N. E. Rep. 467). Citing, Nowlin v. Whipple, 120 Ind. 599 (22 N. E. Rep. 669; 6 L. R. A. 159.); Hazleton v. Putnam, 3 Pin. 107, 3 Chand. 117 (54 Am. Dec. 158, and note, 166); Dark v. Johnston, 55 Pa. St. 170 (93 Am. Dec. 732); Huff v. McCauley, 53 Pa. St. 206 (91 Am. Dec. 203); Thompson v. McElarney, 82 Pa. St. 174; Meek v. Breckenridge, 29 O. St. 642, 650; Legg v. Horn, 45 Conn. 415; 2 Am. Lead. Cas. 577, 578; Washb. Easem. (4th Ed.) pp. 27–29.

Sec. 231. Creation by prescription. The rule that a public way may be acquired by user for the prescriptive period, is held not to apply when the user is of wild, uninclosed prairie land. Engle v. Hunt, 50 Neb. 358 (69 N. W. Rep. 970). Citing, Graham v. Hartnett, 10 Neb. 517 (7 N. W. Rep. 280). To establish a way by prescription, the use must be not only open, adverse, uninterrupted, peaceable, continuous and under a claim of right, but must be confined substantially to the same route, and to substantially the same purpose, for which the way was designed originally, unless the way is one for all purposes. Hoyt v. Kennedy, 170 Mass. 54 (48 N. E. Rep. 1073). The right to a way cannot arise from a mere permissive use without claim of right. Thornton v. Louisville & N. R. Co., Ky. (39 S. W. Rep. 694.) The mere use of a passageway over the land of another without his permission, does not confer any title until the use has been continued for the prescriptive period. Young v. Conrad,

Ky. (38 S. W. Rep. 497). But when one who is the owner of a tract of land uses a way over the land of another for covenience of egress and regress to his own land without let or hindrance and without obstruction, for the prescriptive period, he thereby, in the absence of any thing to the contrary, acquires a right by prescription to its use as an incident to his land, and this right will pass by a conveyance or descent of the land. Pavey v. Vance, 56 O. St. 162 (46 N. E. Rep. 898). The use of a way for the prescriptive period creates a presumption that the use was adverse, and the owner

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