Canny v. Andrews

Soule, J. The easement which the plaintiff claims was not gained by deed, but by the continuous use and enjoyment of the chimney of the defendant by the owners of the house which formerly stood in part on the premises now owned by the plaintiff. The city of Boston, the plaintiff’s grantor, on May 10, 1870, sold this house as personal property, and caused it to be destroyed, not because it was falling to decay and was unsafe, but because the city wished to appropriate the greater part — about five sixths — of the land on which it stood to the widening of Hanover Street. The cellar which had been under the house was filled up, and the street was widened, as intended. This having been done, the city continued to own that part of the land not included in the street, until December 26, 1876, without erecting any building thereon. The destruction of the house by the city left the house of the defendant open and exposed to the weather, so that the erection of a wall was necessary to its safe occupation. In order to build such wall, the defendant began to" destroy the chimney, but was stopped by an injunction granted in favor of the plaintiff. It is well settled that an easement gained by prescription may be lost by abandonment, and that such abandonment may be shown by a cesser to use for even a short period, accompanied by acts of the owner of the dominant estate indicating an intention to abandon the right. Dyer v. Sanford, 9 Met. 395. Pope . Devereux, 5 Gray, 409. The Queen v. Chorley, 12 Q. B. 515. Moore v. Rawson, 3 B. & C. 332. The unavoidable inference, from the acts of the city in respect to the matter, is that, when it removed the house and converted the larger part of the lot of land on which it had stood into a street, it abandoned al' right to use the chimney of the defendant. This purpose is made still more clear by the fact that the remaining part of the lot was permitted to lie vacant during a [158] series of years. The easement, therefore, was extinguished by operation- of law, while the premises were owned by the city, and did not pass to the plaintiff, as appurtenant to the land, by the quitclaim deed under which he holds. The defendant, in taking down the chimney and building a wall to protect her house, rendered unfit for occupation by the act of the city, the plaintiff’s grantor, was exercising a right of ownership in a proper manner, and was not invading any right of the plaintiff. Bill dismissed.