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to make repairs or alterations in order to facilitate the exercise of an easement, merely because of its existence. However, he may have covenanted or in some other way incurred an obligation to do so. If the owner of the easement wishes repairs or alterations made, he may make them himself.

§ 42. Subsidiary uses within scope of easement. An easement often includes within its scope uses of the servient land subsidiary to the main one contemplated at the time of its creation. For instance, the owner of a way to a warehouse may leave goods, brought to or from the warehouse, upon the servient land for a reasonable time preliminary to loading or storing in the warehouse. He would be guilty of a trespass, however, if he deposited the goods upon the way in lieu of storing them in the warehouse, or if he caused unreasonable inconvenience to other legitimate uses of the land in his methods of loading, unloading, or delivering for storage (6). The owner of an easement clearly also has the right to enter upon the servient land for the purpose of making repairs or improvements to facilitate his legitimate uses of the land.

§ 43. Rights of use of servient possessor. The owner of the servient land may make such uses of it as do not unreasonably interfere with the legitimate uses of the possessor of the easement. Naturally, the value of these remaining possessory rights of user will vary greatly with the nature and extent of the easement. For instance, a right of foot-passage across a field in the country would not prevent the possessor of the field from putting his

(6) Appleton v. Fullerton, 1 Gray (Mass.) 186.

cattle to graze along the path or from fencing it in by removable rails at the ends (7). On the other hand, if a broad roadway is granted for all purposes as appurtenant to a plot of land used for a large fashionable summer hotel and it is macadamized by the dominant owner, evidently barriers across the road which would delay the passage of automobiles would not be justifiable, and its value as a grazing ground for cattle would be destroyed. However, the possessor of the servient tenement rightfully might use the road for passage in any way and to any extent that would neither materially interfere with the legitimate uses of the dominant owner, his licensees, his servants and agents, nor damage the pavement (8).

§ 44. Termination of easements. An easement may be terminated in the same manner as may a profit a prendre (§ 33, above). In addition, an easement may be lost by a cessation of use if the holder concomitantly gives unmistakable evidence that he wishes to give it up, although the servient owner does not afterwards act upon the representation in such a way as to raise an estoppel against the former holder of the easement.

Let us now consider some of the ordinary types of easements.

§ 45. Public ways. No land can be used without a means of access and egress over other land or water. We find striking evidence of the truth of this axiomatic statement in the existence of the public streets gridironing a town or city. Sometimes the land covered by a

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public road or street is owned by the state or some municipal division thereof; but frequently the land of a street or road is owned by the owners of the lots or tracts abutting upon it, and the public have what may loosely be called an easement of passage. In either case, individual members of the public have no property rights in the street or road except as abutting land owners. The rights of passage they have are untransferable.

§ 46. Same: Rights when fee is in abutting owners. When the land of a street or road is owned by the abutting landowners, each has ownership of the land usually to the center of the street, but sometimes to a less or greater extent as the conveyances in his chain of title may indicate. This gives them, in addition to the technical possession of the land covered by the street within their boundaries, whatever slight use of the land and control over uses may be exercised without conflicting with the public use for street purposes. Particularly they have rights to light, air, and access from this portion of the street, except in so far as these may be interfered with by its use for legitimate street purposes. In Perley v. Chandler (9) it was decided by the supreme court of Massachusetts that the possessor of land over which ran a public highway had a right to maintain a water course under and across the highway for the purpose of supplying his mill with water. In Codman v. Evans (10) the following facts were involved: Defendant's baywindows projected over land of which plaintiff was the

(9) 6 Mass. 454.

(10) 5 Allen (Mass.) 308. See also State v. Davis, 80 N. C. 351,

possessor, but over all of which ran a public way. It was held that the defendant was a trespasser on the plaintiff's land and was liable to him in damages. This second case is a good illustration of the rule that the possessor of the servient land may obtain legal redress against any one who uses the land in a way beyond the scope of the easement over it.

§ 47. Same: Rights when fee is in state. If the fee of the street is owned by the state or some municipal division thereof, an abutting landowner has no possessory interest in it. It has been held in many jurisdictions however, that he has certain rights of light, air, and access over the street, in the nature of easements, which are subordinate only to the necessities of the public use of the street, for legitimate street purposes (11).

§ 48. Same: What are legitimate street uses? What are legitimate street uses, is a question that has given trouble to the courts in suits by abutting property owners, who claimed that some such use as that of a telephone company, or an electric or elevated railroad was an additional burden upon their servient owner's interest in the street, or an unwarranted interference with the use of their easements of light, air, and access therein. Questions of this nature were involved in the famous New York Elevated Railroad cases (12). It was held by the courts in those cases that an elevated railroad was not within the limits of the legitimate street purposes for which the land was originally acquired by the city, and

(11) Adams v. Chi., B. & N. R. Co., 39 Minn. 286. (12) Story v. N. Y. El. R. Co., 90 N. Y. 122.

the railroad company had to pay the abutting owners for the permanent additional damage done to their abutting property.

Sewers, drainage, water, and gas supply pipes clearly may be classed as legitimate street uses, if they are for service to the public of the municipality in which the street or highway lies. A steam railway is not a legiti mate additional burden (13). Telephone and telegraph lines have been held legitimate uses in some states, and not in others. It has been held quite generally that a city has the right to change the grade of a street, although the light, air, and access of the possessors of abutting land are thereby impaired (14). The subject matter of this subsection is more fully treated in the article on Constitutional Law, §§ 219-20, in Volume XIII of this work.

§ 49. Same: Some interference with user of public is legitimate. A possessor of land abutting on the street may to some slight extent rightfully interfere with the use of the public. For instance, he may place skids over the sidewalk for the purpose of removing boxes or other heavy articles, to or from trucks in the street, provided he does not leave them there unreasonably long (15).

§ 50. Same: Dedication. When a street is not established by condemnation, usually it is opened by dedication. The mode of accomplishing this is discussed in the article on Title to Real Estate § § 130a-132a, in Volume VI.

(13) Williams v. N. Y. C. R. Co., 16 N. Y. 97.

(14) (15)

N. Y. 360.

Roberts v. City of Chicago, 26 Ill. 249.

Welsh v. Wilson, 101 N. Y. 254. Cf. Callanan v. Gilman, 107

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