An easement in land held in common can not be acquired by one of the tenants in common in favor of land held by him in severalty, as a right of flowage over com mon property by a tenant owning a dam ; Great Falls Co. v. Worster, 15 N. H. 412; or a right of way over the common land by the tenant to a lot in the rear owned by him; Boyd v. Hand, 65 Ga. 468.
There are many rights which in their mode of enjoyment partake of the character of easements, such as a custom for the in habitants of a village to dance upon a par ticular close at all times of the year ; 1 Lev. 176; for the inhabitants of a parish to play at all kinds of lawful games in a close at all seasonable times of the year; 2 H. El. 393; for the freemen and citizens of a town on a particular day of the year to enter upon a close and have horse races thereon; 1 H. & C. 729; that every inhabitant of a town shall have a way over certain land either to church or to market; 6 Co. Rep. 59; a right to use a strip of land as a promenade; [1900] 1 Ir. 302 ; a custom for victuallers to erect booths on the waste of a manor at the time of fairs; 6 A. & E. 745; for the inhabitants of a township to go on a close and take wa ter from a spring; 4 E. & B. 702; to move vessels in a navigable tidal estuary of the Thames; [1897] 2 Q. B. 318; to deposit oys ters dredged from oyster fisheries upon the foreshore in another part of the fishery ; [1901] 2 K. B. 870; for all the fishermen of a parish to dry their nets on a particular close; [1904] 2 Ch. 534; [1905] 2 Ch. 538; for the inhabitants of a burgh (in Scotland) to use a strip of ground for recreation and for drying clothes ; [1904] A. C. 73. As, however, the existence and validity of these rights generally depend on some local cus tom excluding the operation of the general rules of law (consuetudo tollit communem legem) and they are sometimes entirely in dependent of any express or implied agree ment between the parties, they generally stand upon a different footing, and are not in all respects governed by the same princi ples as those which determine the boundaries of private easements. When claims of this kind are unreasonable, they are disallowed even in cases where they might possibly have formed the subject of a valid grant. When it is said that a custom is void be cause it is unreasonable, nothing more is meant than that the unreasonable character of the alleged custom conclusively proves that the usage, even though it may have existed immemorially, must have resulted from acci dent or indulgence, and not from any right conferred in ancient times on the party set ting up the custom; 9 H. L. Cas. 692.
The general public cannot acquire by user a right to visit a monument or other object of interest on private property (Stonehenge); [1905] 2 Ch. Div. 188. See Jus SPATL&NDI.
Easements are extinguished : by release; by merger, when the two tenements in re spect of which they exist are united under the same title and to the same person; Par sons v. Johnson, 68 N. Y. 62, 23 Am. Rep.
149; by necessity, or abandonment, as by a license to the servient owner to do some act inconsistent with its existence; Cart wright v. Maplesden, 53 N. Y. 622 ; by cessation of enjoyment, when acquired by prescription,—the non-user being evidence of a release where the abandonment has con tinued at least as long as the user from which the right arose. In some cases a shorter time will suffice; 2 Washb. R. P. 56, 82, 453. An easement acquired by grant cannot be lost by mere non-user, though it may be by non-user coupled with an inten tion of abandonment ; Welsh v. Taylor, 134 N. Y. 450, 31 N. E. 896, 18 L. R. A. 535; Edgerton v. McMullan, 55 Kan. 90, 39 Pac. 1021; Tabbutt v. Grant, 94 Me. 371, 47 Atl. 899; Cox v. Forrest, 60 Md. 74. A presump tion of a way resting in grant will not be created by the fact that it is not continuous ly used by the dominant owner ; Bombaugh v. Miller, 82 Pa. 203; [1893] A. •C. 162; Tyler v. Cooper, 47 Hun (N. Y.) 94. The destruc tion of an easement of a private right of way for public purposes is a taking of the property of the dominant owner for which he must be compensated; U. S. v. Welch, 217 U. S. 333, 30 Sup. Ct. 527, 54 L. Ed. 28 L. R. A. (N. S.) 385, 19 Ann. Cas. 680.
Prescription does not run against the ex ercise of a servitude in favor of one who resisted and prevented its exercise; Sarpy v. Hymel, 40 La. Ann. 425, 4 South. 439. Mere non-user must be accompanied by adverse use of the servient estate; Welsh v. Taylor, 134 N. Y. 450, 31 N. E. 896, 18 L. R. A. 535, with note on the effect of non-user generally. One cannot acquire a prescriptive right over his own lands or the lands of another which he occupies as tenant ; Vossen v. Dautel, 116 Mo. 379, 22 S. W. 734.
An easement in favor of land held in com mon will be extinguished by a partition, if nothing is said about it ; Livingston v. Ketcham, 1 Barb. (N. Y.), 592. As to the loss or extinguishment of easements, see 1 L. R. A. 214, note.
The remedy at common law for interfer ence with a right of easement is an action of trespass, or where it is for consequential damages and for an act not done on plain tiff's own land, of case; Brenton v. Davis, 8 Blackf. (Ind.) 317, 44 Am. Dec. 769; Gan ley v. Looney, 14 Allen (Mass.) 40. Where the act complained of is done in one county, but the injurious consequences thereof are felt in another, the action, may be brought in the latter ; Thompson v. Crocker, 9 Pick. (Mass.) 59; Worster v. Lake Co., 25 N. H.
525. Redress may also, as a general propo sition, be obtained through a court of equi ty, for the infringement of an easement and an injunction will be granted to prevent the same ; Washb. Easem. 747.
As to the distinction between an easement and a license, see LICENSE.
See Washburn, Easements; ABANDONMENT; AIR; ANCIENT LIGHTS ; BACKWATER ; COM MON ; DAM ; HIGHWAYS ; LATERAL PARTY-WALL; PROFIT A PRENDRE ; SERVITUDE; STREET; SUPPORT; WAY.