Jennison v. Walker

Bigelow, J. We can see no sufficient reason for disturbing the verdict in this case. The evidence at the trial not only proved a non-user of the easement of laying and maintaining an aqueduct through the land now owned by the plaintiff by the owners of the dominant tenement for more than thirty years, but also established a possession and use of' the servient estate by the plaintiff and bis grantors during the same period, entirely inconsistent with and adverse to the existence of the easement. The right or easement in question having been acquired by grant and not by use, there might have been difficulty in showing a loss or extinguishment of it by proof of a mere omission during twenty years or more to exercise the right by an actual enjoyment of the easement. But the removal by the plaintiff’s grantors of the logs which conveyed the water through the land now owned by the plaintiff rendered the enjoyment of the easement impossible. It was an act in its nature essentially adverse. It effectually hindered the exercise of the right and operated to annihilate it. After this removal took place, no means were adopted to renew the enjoyment of the privilege. It was a continuous disturbance for more than thirty years. The non-user of the easement by the owners of the dominant estate united with a use of the servient estate inconsistent with and adverse to the existence of the easement during this period of time. Upon this proof, there 426 was sufficient to justify the inference that the right originally conveyed by grant had been released and extinguished by a subsequent non-appearing deed. The doctrine on this subject is fully explained and illustrated in Arnold v. Stevens, 24 Pick. 111. The defendant did not claim to go to the jury at the trial, and the evidence was in our judgment sufficient to warrant a verdict for the plaintiff. But the verdict can be well supported upon another ground. It was proved at the trial that the defendant relaid pipes for the conveyance of the water through land of the plaintiff, not in the line or direction in which the logs were originally placed after the deed granting the easement was made, but that he laid them in a different direction, occupying another portion of the land belonging to the plaintiff. But he gained no such right under the grant of the easement. He acquired the right of laying an aqueduct, and the privilege of entering on the land at all times for the purpose of repairing it. There was no grant of a right to construct more than one passage for water, nor to change the direction of the one first constructed at the pleasure of the grantee. Where an easement in land is granted in general terms, without giving definite location and description to it, so that the part of the land over which the right is to be exercised cannot be definitely ascertained, the grantee does not thereby acquire a right to use the servient estate without limitation as to the place or mode in which the easement is to be enjoyed. When the right granted has been once exercised in a fixed and defined course, with the full acquiescence and consent of both parties, it cannot be changed at the pleasure of the grantee. If it be admitted that he has the right originally to select the place in which the easement is to be enjoyed, he cannot afterwards alter it. Convenience and justice both require this limitation on the right; otherwise, it would be open to questions of great doubt and difficulty, and would make the servient estate in great measure subject to the unrestrained control of the owner of the easement. It has therefore been held that the course of a way, when once established, cannot be altered by either party without the consent of the other. Com. Dig 427 Chimin, D. 5. Jones v. Percival, 5 Pick. 485. Wynkoop v. Burger, 12 Johns. 222. This rule rests on the principle that where the terms of a grant are general or indefinite, so that its construction is uncertain and ambiguous, the acts of the parties, contemporaneous with the grant, giving a practical construction to it, shall be deemed to be a just exposition oí the intent of the parties. Stone v. Clark, 1 Met. 378, & cases cited. If therefore the easement has not been extinguished or lost by non-user and adverse possession, the defendant was clearly guilty of a trespass in digging up the soil of the plaintiff for the purpose of laying pipes in a line different from that occupied by the original aqueduct. Exceptions overruled.