for the support of his building, has no right to make windows or other openings through the wall.212

§ 325. Interference with user.

Any act which interferes with the proper exercise of the easement, whether done by the owner of the servient tene ment, or by a third person, is a "disturbance" or "obstruction" of the easement, for which an action will lie. A disturbance of the easement is usually by the owner of the servient tenement, and not by a third person, and what constitutes a disturbance by him may be best defined by stating what acts he may do without being guilty of a disturbance.

The owner of the servient tenement may make any use thereof which does not affect the exercise of the easement. Accordingly, one whose land is subject to a right of way may take profits, such as herbage and the like, from the ground. on which the way is located,218 and may even place an arch over the line of a right of way, and erect a building thereon, provided the space left under the arch is sufficient for the

212 Graves v. Smith, 87 Ala. 450, 13 Am. St. Rep. 60; Bartley v. Spaulding, 21 D. C. 47; Sullivan v. Graffort, 35 Iowa, 531; Normille v. Gill, 159 Mass. 427; Harber v. Evans, 101 Mo. 661, 20 Am. St. Rep. 646; Milne's Appeal, 81 Pa. St. 54; Dauenhauer v. Devine, 51 Tex. 480, 32 Am. Rep. 627; Traute v. White, 46 N. J. Eq. 437.

An easement to open windows-that is, of light and air-may, however, be granted or created by prescription. Grimley v. Davidson, 35 Ill. App. 31, 133 Ill. 116; Weigmann v. Jones, 163 Pa. St. 330; Graves v. Smith, 87 Ala. 450, 13 Am. St. Rep. 60. So there may be an easement involving the right to open flues in the wall. Ingals v. Plamondon, 75 Ill. 118. In New York it has been held that this latter right might be based even on custom. Hammann v. Jordan, 129 N. Y. 61.

213 Chandler v. Goodridge, 23 Me. 78; Greenmount Cemetery Co.'s Appeals (Pa.) 4 Atl. 528; Moffitt v. Lytle, 165 Pa. St. 173; Kan. sas Cent. Ry. Co. v. Allen, 22 Kan. 285, 31 Am. Rep. 190; Herman v. Roberts, 119 N. Y. 37, 16 Am. St. Rep. 800; Harvey v. Crane, 85 Mich. 316; Koenigs v. Jung, 73 Wis. 178.

uses for which the way was granted, and the way is not so darkened thereby as to be unfit for use.2

214

The landowner may even maintain a fence across the way, unless this is expressly forbidden, or is inconsistent with the purposes for which the way was granted, and he is not necessarily bound to place a swinging gate in the fence, rather than removable bars, these questions as to the facilities to be allowed for passage being questions of fact to be determined by a consideration of what is necessary for the reasonable enjoyment of the easement.215

An action for the disturbance of an easement should be in

214 Atkins v. Bordman, 2 Metc. (Mass.) 457, 2 Gray's Cas. 276; O'Linda v. Lothrop, 21 Pick. (Mass.) 292; Sutton v. Groll, 42 N. J. Eq. 213; Hollins v. Demorest, 129 N. Y. 676. The fact that the way has been definitely located by the acts of the parties does not affect the right to arch it. Gerrish v. Shattuck, 132 Mass. 235, 2 Gray's Cas. 293.

For cases in which the terms and circumstances of the grant of the way were such as to preclude any erections over the way, at any height from the ground, see Schwoerer v. Boylston Market Ass'n, 99 Mass. 285; Brooks v. Reynolds, 106 Mass. 31; Attorney General v. Williams, 140 Mass. 329, 2 Gray's Cas. 296.

215 Bakeman v. Talbot, 31 N. Y. 366, 88 Am. Dec. 275, 2 Gray's Cas. 286; Baker v. Frick, 45 Md. 337, 24 Am. Rep. 506, 2 Gray's Cas. 289; Garland v. Furber, 47 N. H. 304; Bean v. Coleman, 44 N. H. 539, 544; Green v. Goff, 153 Ill. 534; Maxwell v. McAtee, 9 B. Mon. (Ky.) 21, 48 Am. Dec. 409; Phillips v. Dressler, 122 Ind. 414, 17 Am. St. Rep. 375; Short v. Devine, 146 Mass. 119; Whaley v. Jarrett, 69 Wis. 613, 2 Am. St. Rep. 764; Hartman v. Fick, 167 Pa. St. 18, 46 Am. St. Rep. 658. Compare Mineral Springs Mfg. Co. v. McCarthy, 67 Conn. 279; Welch v. Wilcox, 101 Mass. 162, 100 Am. Dec. 113; Patton v. Western Carolina Educational Co., 101 N. C. 408.

Where the way is acquired by prescription, the right to maintain gates is, it has been held, determined by the consideration whether they were maintained during the prescriptive period. Shivers v. Shivers, 32 N. J. Eq. 578, affirmed 35 N. J. Eq. 562; Fankboner v. Corder, 127 Ind. 164; Frazier v. Myers, 132 Ind. 71. Contra, Ames v. Shaw, 82 Me. 379.

case.21 Ejectment does not lie, 217 not trespass quare clausum fregit.18 A court of equity will usually enjoin the obstruction of an easement, if the circumstances are such that an action for damages would not furnish adequate reparation.219 The person entitled to the exercise of the easement may also remove or "abate" the obstruction, if he can do so without any breach of the peace.

In view of the incorporeal character of a pew, the remedy for interference with the pew holder's right would seem properly to be an action on the case. 221 In a number of cases in this country, however, it is held that trespass quare clausum fregit or ejectment will lie.222

216 Bowers v. Suffolk Mfg. Co., 4 Cush. (Mass.) 332; Shafer v. Smith, 7 Har. & J. (Md.) 67; Osborne v. Butcher, 26 N. J. Law, 308; Shroder v. Brenneman, 23 Pa. St. 348; Martin v. Bliss, 5 Blackf. (Ind.) 35, 32 Am. Dec. 52.

217 Adams, Ejectment, c. 2; Parker v. West Coast Packing Co., 17 Or. 510; Hancock v. McAvoy, 151 Pa. St. 460, 31 Am. St. Rep. 774; Child v. Chappell, 9 N. Y. 246; Roberts v. Trujillo, 3 N. M. 87; Fritsche v. Fritsche, 77 Wis. 270.

218 Chitty, Pleading (7th Ed.) 147, 159; Shafer v. Smith, 7 Har. & J. (Md.) 67; Morgan v. Boyes, 65 Me. 124.

219 Wheeler v. Bedford, 54 Conn. 244 (town common); Henry v. Koch, 80 Ky. 391, 44 Am. Rep. 484; Webber v. Gage, 39 N. H. 182, Hacke's Appeal, 101 Pa. St. 245; Sanderlin v. Baxter, 76 Va. 299, 44 Am. Rep. 165; Schaidt v. Blaul, 66 Md. 141; Herman v. Roberts, 119 N. Y. 37, 16 Am. St. Rep. 800. But see Rhea v. Forsyth, 37 Pa. St. 503, 78 Am. Dec. 441; McBryde v. Sayre, 86 Ala. 458.

220 Quintard v. Bishop, 29 Conn. 366; Sargent v. Hubbard, 102 Mass. 380; McCord v. High, 24 Iowa, 336; Joyce v. Conlin, 72 Wis. 607; Morgan v. Boyes, 65 Me. 124.

221 See Stocks v. Booth, 1 Term R. 431; Bryan v. Whistler, 8 Barn. & C. 294; Perrin v. Granger, 33 Vt. 101; Trustees of the Third Presbyterian Congregation v. Andruss, 21 N. J. Law, 325; Daniel v. Wood, 1 Pick. (Mass.) 102, 11 Am. Dec. 151.

222 Jackson v. Rounseville, 5 Metc. (Mass.) 127; O'Hear v. De Goesbriand, 33 Vt. 593, 80 Am. Dec. 653; Howe v. Stevens, 47 Vt. 262; Shaw ▼ Beveridge, 3 Hill (N. Y.) 26, 38 Ani. Dec. 616; First Baptist Church v. Witherell, 3 Paige (N. Y.) 296, 24 Am. Dec. 223. These cases seem to be based on the theory that a pew is "real

A tenant of land under a lease may bring an action for disturbance of an easement appurtenant to the land, as involving an injury to his possession. 228 The reversioner also may sue if his interest has been injured by the disturbance, 224 but the decisions are by no means clear as to what constitutes injury to the reversion. The locking of a gate across a way may, it has been held, cause such injury, and whether it does so in a particular case is a question of fact;225 and there has been a like holding in an action by a reversioner on account of an interference with the easement of light.226 If there is a continuation of the interference or obstruction, two or more successive actions may be brought by the reversioner.227 The reversioner cannot generally sue on account of a single act of obstruction, not permanent in its nature, since this is not calculated to injure the inheritance.228

IV. EXTINCTION OF EASEMENTS.

An easement may be extinguished by:

(1) A cessation of the purpose for which the easement was 'created.

(2) A change in the dominant tenement involving an in

estate," and that these forms of action always lie for "real estate." On this theory, trespass quare clausum fregit or ejectment would lie for any easement or right of profit, since they are all "real es tate," except when the interest is merely for years.

223 Gale, Easements, 571; Hamilton v. Dennison, 56 Conn. 359; Avery v. New York Cent. & H. R. R. Co., 7 N. Y. Supp. 341; Noyes v. Hemphill, 58 N. H. 536.

224 Jesser v. Gifford, 4 Burrow, 2141, 2 Gray's Cas. 300; Bell v. Midland Ry. Co., 10 C. B. (N. S.) 287; Cushing v. Adams, 18 Pick. (Mass.) 110; Richardson v. Bigelow, 15 Gray (Mass.) 154; Brown v. Bowen, 30 N. Y. 519, 86 Am. Dec. 406.

225 Kidgill v. Moore, 9 C. B. 364, 2 Gray's Cas. 301.

126 Metropolitan Ass'n v. Petch, 5 C. B. (N. S.) 504.

227 Shadwell v. Hutchinson, 4 Car. & P. 333, 3 Gray's Cas. 301. 228 Hopwood v. Schofield, 2 Moody & R. 34; Baxter v. Taylor, 4 Barn. & Adol. 72; Tucker v. Newman, 11 Adol. & E. 43. See Kim. ball v. McIntosh, 134 Mass. 362.

creased use of the easement not contemplated in its creation.

(3) The vesting in one person of a fee-simple title to both the dominant and servient tenements.

(4) An express release by the person entitled to the ease-
ment.

(5) Abandonment or implied release of the easement.
(6) Acts by the owner of the land, adverse to the exercise
of the easement, continued for the prescriptive
period.

(7) A license by the dominant to the servient owner to
obstruct the easement, followed by expenditures on
the strength of the license.

(8) A conveyance of the servient tenement to one without notice of the easement.

326. Cessation of purpose of easement.

Where an easement is granted for a particular purpose, or arises by prescription by an exercise of the right for such a purpose, upon the cessation of that purpose the easement itself necessarily comes to an end. 229 So, a way of necessity ceases with the necessity on which it is based, as when the person in whose favor it exists acquires land over which he has an outlet to a highway,280 and the right to maintain, on adjoining land, a staircase leading to one's building, is terminated by the destruction of the building.231

229 National Guaranteed Manure Co. v. Donald, 4 Hurl. & N. 8; Central Wharf & Wet Dock Corp. v. Proprietors of India Wharf, 123 Mass. 567; Bangs v. Potter, 135 Mass. 245; Hahn v. Baker Lodge, No. 47, 21 Or. 30, 28 Am. St. Rep. 723; Day v. Walden, 46 Mich. 575; Linkenhoker v. Graybill, 80 Va. 835; Weis v. Meyer, 55 Ark. 18.

280 Holmes v. Goring, 2 Bing. 76, 3 Gray's Cas. 342; Collins v. Prentice, 15 Conn. 39, 38 Am. Dec. 61; Oliver v. Hook, 47 Md. 301; Viall v. Carpenter, 14 Gray (Mass.) 126; Whitehouse v. Cummings, 83 Me. 91, 23 Am. St. Rep. 756; Carey v. Rae, 58 Cal. 159; Palmer v. Palmer, 150 N. Y. 139; Oswald v. Wolf, 129 Ill. 200; Alley v. Carleton, 29 Tex. 78, 94 Am. Dec. 260.

231 Shirley v. Crabb, 138 Ind. 200, 46 Am. St. Rep. 376; Hahn v.