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Lisle v. Embry,

Ky.

of the servient estate has the burden of showing the contrary. Ky. (42 S. W. Rep. 98); Burch v. Blair, (41 S. W. Rep. 547); Pavey v. Vance, 56 O. St. 162 (46 N. E. Rep. 898). Citing, Garrett v. Jackson 20 Pa. St. 331; O'Daniel v. O'Daniel, 88 Ky. 185 (10 S. W. Rep. 638). Where land is claimed as a street by a city on the ground of a prescriptive use, evidence of acts by the city in reference to such ground inconsistent with the claim of the easement, during the prescriptive period, are admissible. Illinois Cent. R. Co. v. City of Bloomington, 167 Ill. 9 (47 N. E. Rep. 318). For particular cases in which an easement was held to be established by use for the prescriptive period, see City of Chicago v. Sawyer, 166 Ill. 290 (46 N. E. Rep 759); City of Chicago v. Homes, 169 Ill. 260 (48 N. E. Rep. 408); Benedict v. Johnson, Ky. (42 S. W. Rep. 335). Same, in which the right to an easement was held not to exist. Engle v. Hunt, 50 Neb. 358 (69 N. W. Rep. 970); Mills & Allen v. Evans, 100 Ia. 712; (69 N. W. Rep. 1043).

Sec. 232. Appurtenant or implied easements. Where a lessor conveys to his lessee leased premises "with the appurtenances thereto," the lessee takes an easement in adjoining land of the lessor for conducting water therefrom to supply a fish pond on the land conveyed, through pipes laid by him for that purpose, under an express provision in the lease and in use at the time of the conveyance. In an action against a grantor for an interference with such easement by diverting the water, the measure of damages is what the grantee lost in the diminished value of the use of the pond. Spencer v. Kilmer, 151 N. Y. 390 (45 N. E. Rep. 865). Where the owner of a body of land divides it among his children by conveyances to them, each takes it subject to or benefitted by such burdens as were openly or plainly attached to or imposed on it by the common owner in his use and enjoyment of the land at the time of the severance and which on a severance would properly be termed "easements" or "servitudes." Baker v. Rice, 56 O. St. 463 (47 N. E. Rep. 653). Where, from the construction of a building it was plainly not intended that the elevator should be used for hoisting goods from the basement room to the side walk on the street, or for

lowering goods to the basement room, the right to such use of it will not be implied, there being other convenient means of access from the sidewalk to the basement, in favor of the lessee of the basement from a grant of the use of such elevator for carrying goods from the basement to other parts of the building. Cummings v. Perry, 169, Mass. 150 (47 N. E. Rep. 618; 38 L. R. A. 149). A grantee cannot claim an appurtenant easement as against lands not owned by the grantor at the time of his conveyance although he subsequently acquired title thereto. Spencer v. Kilmer, 151 N. Y. 390 (45 N. E. Rep. 865). Particular facts held to show the existence of an easement for the use of a well near the dividing line between two lots in favor of the lot upon which it is not located. Eliason v. Grove, 85 Md. 215 (36 Atl. Rep. 844.

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Sec. 233. Lateral support-Light and air. The right to lateral support is confined to the land in its natural condition and if the pressure of a superstructure causes the land to fall, an adjoining owner is not liable either for injury to the land or superstructure. Hemsworth v. Cushing, 115 Mich. (72 N. W. Rep. 1108); Obert v. Dunn, 140 Mo. 476 (41 S. W. Rep. 901). The first case cited follows and specially approves the case of Gildersleeve v. Hammond, 109 Mich. 431 (67 N. W. Rep. 519; 33 L. R. A. 46) epitomized at length in Ballards' Law Real Prop., Vol. V., § 208. For construction of particular covenant against the obstruction of light and air, see Chase v. Walker, 167 Mass. 293 (45 N. E. Rep. 916).

Sec. 234. Way of necessity. The doctrine of a way of necessity applies in partition of lands made by deed, or by proceedings in court in favor of any tract allotted, which is not accessible from a highway except over the tract or tracts allotted to others. Ritchey v. Welsch, 149 Ind. 214 (48 N. E. Rep. 1031; 40 L. R. A. 105). Citing, Viall v. Carpenter, 14 Gray 126; Blum v. Weston, 102 Cal. 362 (36 Pac. Rep. 778; 41 Am. St. Rep. 188). A purchaser of a strip of land adjoining his lot, which abuts upon the street, cannot claim a way of necessity over his grantor's other land, because his lot which abuts upon the street, is almost covered with a building. Botsford v. Wallace, 69 Conn. 263 (37 Atl. Rep.

902). One entitled to a way of necessity over certain lands of another, cannot be deprived of his right by such other person offering him a private way over other lands owned either by himself or others. Ritchey v. Welsch, 149 Ind. 214 (48 N. E. Rep. 1031; 40 L. R. A. 105). A vendee in possession, who is entitled to a way of necessity over the land of his vendor, which he is using, has a right to enforce such easement against the purchaser of the exterior lots, although the latter acquired title before a deed had been given to the former. Pleas v. Thomas, 75 Miss. 495 (22 So. Rep. 820).

Sec. 235. Way of necessity-Implied reservation. Where the owner of a tract of land who has made and maintained a private way over his land to a public highway, and such way is his only means of ingress and egress to his home, sells and conveys to another a portion of it lying on the public highway, and is thereby deprived of all access to the highway except by the way he had previously constructed and maintained, and which passes through the granted part, and the facts were well understood by both parties at the time, in such case, the way is reserved to the lands of the grantor by implication, although the deed contains a covenant against incumbrances. It is a general rule that one cannot derogate from his grant; so that, to warrant the inference of a way reserved by implication, it must be one of strict necessity to the remaining lands of the grantor. It is not merely a matter of convenience, and, if the grantor has another mode of access to his land, however inconvenient, he cannot claim a way by implication in the land conveyed, though he may have been in the use of a way over it to a public highway at and a long time before the conveyance, and of which the grantee had notice at the time. Meredith v. Frank, 56 O. St. 479 (47 N. E. Rep. 656).

Sec. 236. Way of necessity-Location. Where one has the right of way of necessity across premises owned or occupied by another, unless he waives it, the other has the right to fix the location of the way, provided it is reasonably convenient for the use of the one having it. Jenne v. Piper, 69 Vt. 497 (38 Atl. Rep. 147). In the case of Ritchey v.

Welsch, 149 Ind. 214 (48 N. E. Rep. 1031; 40 L. R. A. 105), the supreme court of Indiana say: "When no prior use of

the way has been made, and the same is to be located for the first time, the owner of the land over which the same is to pass has the right to choose it, provided he does so in a reasonable manner, having due regard to the rights and interests of the owner of the dominant estate. But if the owner of the land fail to select such way when requested, the party who has the right thereto may select a suitable route for the same, having due regard to the convenience of the owner of the servient estate. Holmes v. Seely, 19 Wend. 507, 510; Russell v. Jackson, 2 Pick. 578; Capers v. Wilson, 3 McCord 170; Godd. Easem. (Bennett's Ed.) 348, 350. When the way is once selected, it cannot be changed by either party without the consent of the other. Nichols v. Luce, 24 Pick. 102 (35 Am. Dec. 302); Holmes v. Seely, 19 Wend. 507, 510; Morris v. Edgington, 3 Taunt. 23; Godd. Easem. (Bennett's Ed.) 351."

Sec. 237. Abandomment or extinguishment of easement. Mere nonuser of a portion of the width of a street will not work an abandoment of the public rights therein. City of Madison v. Mayers, 97 Wis. 399 (73 N. W. Rep. 43; 65 Am. St. Rep. 127; 40 L. R. A. 635). The public may lose an easement by nonuser accompanied by occupancy by an adjoining proprietor. Vincent v. City of Kalamazoo, 111 Mich. 230 (69 N. W. Rep. 501). See Estoppel. Where one having the right to use a gangway across lands of several persons, conveys to the owner of the premises adjacent to her land all her right to the use of the way across such premises, thereby cutting off all access to her property by such gangway, thereby terminates her right to use the portion of the way across the other lands. Johnson v. Grant, 20 R. I. 174 (37 Atl. Rep. 707). Particular evidence held sufficient to show an abandonment of an easement. New York, N. H. & H. R. Co. v. Benedict, 169 Mass. 262 (47 N. E. Rep. 1027).

EJECTMENT.

EPITOME OF CASES.

Sec. 238. As to when the action will lie. A lot owner cannot maintain ejectment to remove an underground wall erected by an adjoining owner which encroaches upon his land, where it is used to sustain his building and it does. not deprive him of the full and free possession and enjoyment of his entire lot. Zander v. Valentine Blatz Brewing Co., 95 Wis. 162 (70 N. W. Rep. 164). The action may be maintained against a municipal corporation entering upon and holding possession of the land of another, Mayor of Chauncey v. Brown, 99 Ga. 766 (26 S. E. Rep. 763); or against a vendor who reenters on account of the nonpayment of purchase maney notes, where his contract of sale does not make such nonpayment a ground for forfeiture or rescission. Usher v. Hollister, 58 Kan. 431 (49 Pac. Rep. 525). Ejectment will not lie against a husband merely occupying lands with his wife without claiming title or right of possession and whose acts concerning the land are performed merely as a servant or employe of his wife who claims to have the right of possession. Danihee v. Hyatt, 151 N. Y. 493 (45 N. E. Rep. 939). In Massachusetts ejectment will lie to recover the unexpired term of a lease, but the action can only be maintained by one who has the right of possession. Austin v. Kimball, 167 Mass. 300 (45 N. E. Rep. 627). The fact that a subtenant may be ejected under a judgment against the original lessee, does not authorize the entry of a judgment against him on a warrant of attorney not signed by him. Stewart v. Jackson, 181 Pa. St. 549 (37 Atl. Rep. 518). A land owner, who has consented to the occupation and use of his lands by a railroad, cannot maintain ejectment against it. Fries v. Wheeling & L. E. Co., 56 O. St. 135 (46 N. E. Rep. 516); Atexander v. Kansas City, F. S. & M. R. Co., 138 Mo. 464 (40 S. W. Rep. 104). See Ballard's Law Real Rep. Vol. III, §§ 233–240. Applying Miss. Laws 1894, p. 99, § 1, it is held that ejectment will not lie to recover land appro

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