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Where such notice has not been given, the servient owner is Compen
sation for entitled to compensation for damage caused to the servient
damage heritage in consequence of such extinguishment or suspension. caused by
extinguishIllustration. A, in exercise of an easement, diverts to his canal the water of B's stream. The diversion continues for many years, and during that time the bed of the stream partly fills up. A then abandons his easement, and restores the stream to its ancient course. B's land is consequently flooded. B sues A for compensation for the damage caused by the flooding. It is proved that A gave B a month's notice of his intention to abandon the easement, and that such notice was sufficient to enable B, without unreasonable expense, to have prevented the damage. The suit must be dismissed ?.
51. An easement extinguished under section 45 revives (a) Revival of when the destroyed heritage is, before twenty years have easements. expired, restored by the deposit of alluvion”; (6) when the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt upon the same site; and (c) when the destroyed heritage is a dominant building and before twenty years have expired such building is rebuilt upon the same site and in such a manner as not to impose a greater burden on the servient heritage 3.
An easement extinguished under section 46 revives when the grant or bequest by which the unity of ownership was produced is set aside by the decree of a competent Court. A necessary easement extinguished under the same section revives when the unity of ownership ceases from any other cause 4.
A suspended easement revives if the cause of suspension is removed before the right is extinguished under section 47.
thither over B's field 2. A obtains from B a lease of Z for twenty years. The easement is suspended so long as A remains lessee of Ž. But when A assigns the lease to C, or surrenders it to B, the right of
1 That a reciprocal ensement cannot be acquired for the benefit of the servient tenement by the exercise of an easement by the dominant owner follows from Mason v. The Shrewsbury &c. Ry. Co., L. R., 6 Q. B. 578, and Arkwright v. Gell, 5 M. & W. 203 : Goddard, 20, 85-86, 504.
· Dig. 8,6,14, 2. Even after the prescriptive time has elapsed the servient owner could by Roman law be compelled to regrant the servitude. But the Indian Act imposes no such liability.
3 Dig. 8, 2, 20, 2: see I Agra (1866), p. 197
Gale, 146, 582.
"License' 52. Where one person grants to another, or to a definite defined
number of other persons, a right to do, or continue to do, in or upon the immoveable property of the grantor, something which would, in the absence of such right, be unlawful', and such right does not amount to an easement? or an interest in the property, the right is called a license.
53. A license may be granted by any one in the circumgrant
stances and to the extent in and to which he may transfer his license.
interests in the property affected by the license.
54. The grant of a license may be express or implied from be express the conduct of the grantor 3, and an agreement which purports or implied.
to create an easement, but is ineffectual for that purpose, may
operate to create a license. Accessory
55. All licenses necessary for the enjoyment of any interest, licenses
or the exercise of any right, are implied in the constitution annexed by law.
of such interest or right. Such licenses are called accessory
on the land and take away the trees“. License 56. Unless a different intention is expressed or necessarily when trans- implied, a license to attend a place of public entertainment
may be transferred by the licensee; but, save as aforesaid ', a
4 Mad. H. C. 98: Thomas v. time sold the land, Bro. Abr., TresSorrel, Vaughan, 351, who mentions pass, pl. 400: 7 Bac. Abr. 676, Tres. 'a license to hunt in a man's park, a pass, F. 1, cited by Gale, 16, note. license to come into his house,
5 i.e. unless a different intention is 2 As to the distinction between an expressed or implied, as, for instance, easement and a license, see Kent, where the license is to B and his Comm. iii. 452.
assigns,' or the license is to search 3 Goddard on Easements, 3rd ed., p. and get minerals and carry away 119.
ore found, Muskett v. Hill, 5 Bing. even though A has in the mean. N. C. 694.
license cannot be transferred by the licensee or exercised by his servants or agents ?
Illustrations. (a) A grants B a right to walk over A's field whenever he pleases. The right is not annexed to any immoveable property of B. The right cannot be transferred ?.
(6) The Government grant B a license to erect and use temporary grain-sheds on Government land. In the absence of express provision to the contrary, B's servants may enter on the land for the purpose of erecting sheds, erect the same, deposit grain therein and remove grain therefrom.
57. The grantor of a license is bound to disclose to the Grantor's licensee any defect in the property affected by the license, disclose likely to be dangerous to the person or property of the licensee, defects. of which the grantor is, and the licensee is not, aware.
58. The grantor of a license is bound not to do anything Grantor's likely to render the property affected by the license dangerous to render to the person or property of the licensee.
unsafe. 59. When the grantor of the license transfers the property Grantor's affected thereby, the transferee is not as such bound by the
not bound license 3.
60. A license may be revoked by the grantoro, unless
License (a) it is coupled with a transfer of property and such transfer when
revocable. is in force 5 :
(6) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution 6. 61. The revocation of a license may be express or implied. Revocation
express or Illustrations.
implied. (a) A, the owner of a field, grants a license to B to use a path
1 It is founded on personal con- 493: Perry v. Fitzhou, 8 Q. B. 757 : fidence, Kent, Comm. iii. 453.
Taplin v. Florence, 10 C. B. 744 : Ackroyd v. Smith, 10 C. B. 164.
Andrews, 15 Q. B. 284. 3 Roffey v. Henderson, 17 Q. B. • Gale, 69: Goddard, 505: Wood 574: Coleman v. Foster, 1 H. & N. 37: v. Leadbitter, 13 M. & W.844. Wallis v. Harrison, 4 M. & W. 538. • Winter v. Brockwell, 8 East, 308, Sec. 59 does not refer to accessory
where the licensee had made a skylicenses, as to which see sec. 55. light over the licensor's area : Kent,
4 Mad. H. C. 98, and see R. v. Comm. iii. 452. There is no exception Inhabs. of Mellor, 2 East, 189: where the license is under seal, Williams v. Morris, 8 M. & W. 488,
across it. A, with intent to revoke the license, locks a gate across the path. The license is revoked'.
(6) A, the owner of a field, grants a license to B to stack hay on the field. A lets or sells the field to C. The license is revoked?
License when deemed revoked.
62. A license is deemed to be revoked 3
(a) when, from a cause preceding the grant of it, the grantor ceases to have any interest in the property affected by the license :
(6) when the licensee releases it, expressly or impliedly, to the grantor or his representative :
(c) where it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires, or the condition is fulfilled :
(d) where the property affected by the license is destroyed or by superior force so permanently altered that the licensee can no longer exercise his right:
(e) where the licensee becomes entitled to the absolute ownership of the property affected by the license :
(f) where the license is granted for a specified purpose and the
purpose is attained", or abandoned, or becomes impractic
(9) where the license is granted to the licensee as holding a particular office, employment or character, and such office, employment or character ceases to exist :
(1) where the license totally ceases to be used as such for an unbroken period of twenty years, and such cessation is not in pursuance of a contract between the grantor and the licensee:
(i) in the case of an accessory license, when the interest or right to which it is accessory ceases to exist.
Licensee's 63. Where a license is revoked, the licensee is entitled to a rights on
reasonable time to leave the property affected thereby and to revocation.
· Hyde v. Graham, 1 H. & C. 593. erect a dam across A's stream, the
i H. & N. 37: 4 M. & W. 538: license is held in America to terminGale, 65: Goddard, 396, 508. As to ate with the decay of the dam, as the secs. 60, 61, see 8 All. 69, 70.
purpose of the license has then been 3 Kent, Comm. iii. 452.
fulfilled,' Kent, iii. 45a. 4 Where A grants B a license to
remove any goods which he has been allowed to place on such property
64. Where a license has been granted for a consideration, Licensee's
on and the licensee, without any fault of his own, is evicted by eviction. the grantor before he has fully enjoyed, under the license, the right for which he contracted, he is entitled to recover compensation from the grantor 2.
· Cornish v. Stubbs, L. R., 5 C. P. Whaleyv. Laing, 2 H. & N. 476. Mr. 334 : Mellor v. Watkins, L. R., 9 Goddard thinks that as a general rule Q. B. 400.
a licensee has no right of action The Act is silent as to the against á stranger who obstructs his licensee's rights against third persons. privilege. See Hill v. Tupper, 2 H. & C. 121 :