Morse v. Copeland

Metcalf, J. By the deed of Josiah and Horatio Copeland to the Easton Manufacturing Company, dated May 10th 1825, that company acquired a right to flow all the land of each of the grantors, which could be flowed by the factory dam, as it then existed. The right thus acquired was an easement in the lands of the grantors. That right was transferred, by the company, to Shepard Leach, who thus acquired the same easement. And Leach, in 1831, while he owned the factory and water privilege — which was the dominant tenement — gave an oral license to Josiah and Horatio Copeland, owners of the servient tenement, to erect a dam or embankment on their own land, • which should exclude the water from a part of the land which, by their above mentioned deed, he had a right to flow. That license was executed by them. They made the dam, and it effected the purpose for which it was made, for more than twenty years. In 1853, the plaintiffs, who derive title to the factory and water privilege from Leach, through intermediate conveyances, undertook to revoke the license of 1831; required the defendants to prostrate the dam; and, on the defendants’ refusal so to do, prostrated it themselves. The first question in the case is, whether the plaintiffs can justify that act. We are of opinion that they cannot. For it is a rule of law, that an easement, whether acquired by known grant or by prescription, may be extinguished, renounced or modified, by a parol license granted by the owner of the dominant tenement, and executed by the owner of the servient tene [305] ment. The authorities on this point are conclusive. Dyer v. Sanford, 9 Met. 395. Winter v. Brockwell, 8 East, 308. Liggins v. Inge, 7 Bing. 682, and 5 Moore & Payne, 712. Addison v. Hack, 2 Gill, 221. The next question is, whether the license, given by Leach to Josiah and Horatio Copeland, to cut a ditch through his land, and thereby draw off a part of the water of the factory pond was revocable by the defendants, and therefore their act in stopping the ditch was justifiable. And it is well settled that it was revocable. An easement in real estate can be acquired only by deed, or by prescription, which supposes a deed. Cook v. Stearns, 11 Mass. 533. Fentiman v. Smith, 4 East, 107. Wallis v. Harrison, 4 M. & W. 538. Hewlins v. Shippam, 7 Dowl. & Ryl. 783, and 5 B. & C. 221. Cocken v. Cowper, 5 Tyrw. 103, and 1 C. M. & R. 418. Wood v. Leadbitter, 13 M. & W. 838. Adams v. Andrews, 15 Ad. & El. N. R. 284. The authorities referred to on these first two questions show that the rule, sometimes laid down in the books, that a license executed cannot be countermanded, is not applicable to licenses which, if given by deed, would create an easement; but to licenses which, if given by deed, would extinguish or modify an easement. They also show that the distinction, sometimes taken in the books, between a license to do acts on the licensee’s own land, and a license to do acts on the licensor’s land, is the same distinction that is made between licenses which, if held valid, would create, and licenses which extinguish or modify, an easement. Generally, if not always, a license which, when executed, extinguishes or modifies an easement, is, from the nature of the case, a license to do acts on the servient tenement — the tenement of the icensee. See Gale & Whatley on Easements, Pt. 1, c. 3, § 1. The last question is, whether the defendants can justify the making of the ditch on their own land, and thereby drawing off the water which flowed through the breach made in the dam erected by them in 1831, on Leach’s license. As that water was thrown upon their land by the wrongful act of the plaintiffs, we cannot doubt their right to relieve their land from it by the means which they have adopted. Plaintiffs nonsuit