
    E. R. Parkins et al. v. Benajah Dunham.
    
    The Statute of Limitations can afford no bar to an easement.
    "Whether a party has abandoned his right to an easement, is a question of fact an<^ intention, proper for the determination of the jury. 10 Mass. 189.
    
      
      Before O’Neall, J. at Greenville, Spring Term, 1848.
    This was an action on the case by Mrs. E. R. Parkins and her children, the heirs at law of Allen R. Parkins, deceased, for flooding their land on Reedy river and Brushy creek, by' the means of a dam erected below the same on Reedy river.
    There was no doubt, from the proof, that the land of the plaintiffs was seriously injured by a dam erected by the defendant to propel his paper mill. This was erected at a place called Lafferty’s shoals, on Reedy river. The great question in the case was, whether the defendant had the right to flood the plaintiffs’ land by prescription. As far back, perhaps, as ’93, there was a mill at these shoals; how far the water was thrown back thereby, did not appear. This milL belonged to Capt. John Goodwyn; subsequently it passed into the possession of Gilbert Sweat, who conveyed, about 1800, to Col. Alston and Adam Carruth. The place soon became the sole property of the latter. In 1800 or 1801, he erected a dam higher, one of the witnesses (Mr. Rodgers,) said, than had ever been at this place; which, it appeared from the testimony of the same witness, as far back as 1809, flooded the very land now affected. How long that dam was maintained, at its greatest height, did not satisfactorily appear. Some of the witnesses thought it so remained until 1816, when it was swept away by a freshet, while Carruth was at the North, about the contract for the manufacture of arms. Other witnesses said it declined, and was down, or nearly so, for 8 or 9 years before he entered upon the manufacture of arms. In 1816 the dam was rebuilt, and continued to his death, in ’22 or ’23, and by his securities in the contract for arms it was kept up to Sept. 1824, when the dam broke on the east side of the riverit was patched up, so as to run the grist and saw mill for a year, and perhaps until ’26, when the mill was burnt and the dam entirely went down. At that time, certainly, and perhaps before, A. R. Parkins cleared the land now injured, and placed it in cultivation. He, and his wife and children, continued the cultivation, without interruption, to the fall of ’34, when Andrew Patterson, who had purchased Caruth’s title, again put up the dam. Against its erection Mr. Parkins protested, and gave Patterson notice that he would pull it down. In October, 1836, these plaintiffs brought suit against Patterson; it was finally discontinued in 1840.—
    
      The land and paper mill afterwards was sold by the sheriff as the property of Andrew Patterson, and purchased by this, defendant. After his purchase, and shortly before this suit, the dam was swept away, and was rebuilt by the defendant. He did not make it by 4 inches as high as Patterson’s dam.
    The Circuit Judge carefully submitted the case, on the facts, to the jury. They were told, in the beginning of his charge, that as he laid down the law to them, they would be governed by it: that as to the facts, he was bound to advise them, but his office in that respect was merely advisory; they were the ultimate judges of the facts. They were told, that .to create a prescriptive right, there must be twenty years continuous, uninterrupted use, to the extent claimed — that in this case, the defendant was bound to satisfy them that he, or those under whom he claimed, or all together, had for twenty successive years, without interruption, used and enjoyed the right to flood the plaintiffs’ land as far as it was now affected. They were told, that in reference to Goodwyn and Sweat, there was no evidence how far their dam flooded the water back, and hence he thought that part of the case might be passed over. As to Carruth’s possession and use, there was great uncertainty; “ still I thought, (says his Hon- or,) and so said to the jury, that it had been sufficiently shown that he had exercised, for twenty successive years, without interruption, the right of flooding the plaintiffs’ land, and that therefore the prescriptive right was established in him, and would defeat the plaintiffs’ action, had it not been, that at least from ’26 to ’34, a period of 8 years, the dam was down, and, for that period, Parkins, his wife and children, had cleared and cultivated the land, and thus ended the easement or servitude, by setting up an adverse use of their own soil 1 or a period of time which would have barred any action which the defendant, or those under whom he claimed, could have brought to assert the right by prescription. Hence I came to the conclusion, and so said to the jury, that the prescriptive right in Carruth was extinguished when Patterson, in ’34, rebuilt the dam. Since then there could be no prescription.” The jury were told, by his Honor, that in law he thought the plaintiff was entitled to recover; but inasmuch as he thought the defendant had acted honestly, and in the assertion of what he conpeived to be a plain right, he advised the jury to find very moderate damages. They found for the plaintiffs $150 damages. The defendant appealed on many grounds, of which the following only were considered by the Court.
    1st. Because his Honor charged the jury that the occupation and cultivation of the lands injured by the mill dam for eight years by the plaintiff, whilst the dam was down, from 1826 to 1834, was an abandonment of the easement on the part of the defendant.
    
      2nd. Because his Honor charged that if the defendant neglected to sue for four years, his rights were gone.
    3d. Because his Honor charged that the clearing and cultivation of the lands by the plaintiff for eight years was such an obstruction of easement as would work an extinguishment of the defendant’s prescriptive rights.
    ARGUMENT.
    
      Perry, for the motion,
    said it required as long a time to lose as to acquire an easement, 2 Thomas Coke, 201; 2 Corny. Dig. 96; 3 Crew’s Dig. 473; Dayle and Whatley on Easements, 257 to 284, and cases therein cited. 3 Camp. 514; 10 Mass. Rep. 189 ; White v. Crawford, Emerson v. Wiley, 10 Pick. 210; 23 Pick. 216; 17 Mass. Rep. 289 ; 23 Pick. 141; 10 Pick. 310; 10 Mass. Rep. 283. A right to dig ore acquired by deed was not lost in forty years, 24 Pick. 106. That the extinguishment of an easment was a question to be decided by the jury and not by the Judge, 13 Mass. Rep. 126; and that the twenty years (if that period of time was held to be sufficient) must be aided by circumstances; or it must be in fact destroyed for twenty years, 3 Kent Com. 448 and 449; Rivers v. Lawton, 2 M’C. 452. Cuthbert v. Lawton, 3 M’C. 195 ; 1 Cowper, 216 ; Angelí on water courses, 81; 32 E. C. L. R. 588; 10 do. 103; 43 do. 876; Lousiana Code, 117, Art. 780 to 783 ; Code Napoleon, 703 and 704; Woolryche on Ways, 58; 4 Coke, 86, and 2 Taunt. 156 and 160.
    
      Waddy Thompson, contra,
    said the right of the owner of an easement was destroyed by merger of the estates, Hampton v. Taylor, 4 McC, 96. That the new dedication of the estate of the owner of the land, or of the claimant of the servitude on it, was an abandonment, 1 Bos, and Pul. 371; An-gelí on water courses, 69 and 70, That the privilege of overflowing uncultivated land was not acquired by twenty years use ; nor were twenty years conclusive, but only presumptive of acquiescence ; Angelí on water courses, 47 and 180 ; 1 Cowper, 215,
    
      Young, same side,
    said, a less time than twenty years would operate to extinguish an easement or right or servitude, if either of the parties act incompatibly with it, with the assent of the other; Best on Presumptions, in 37 Law Lib. 96.
   RichaudsoN, J.

delivered the opinion of the Corn t.

As this case is to go back for a new trial, which should be without any prejudice to the questions that may arise, the Court will decide no more than is necessary for that purpose.

The legal objection is, to the following part of the Judge’s charge to the jury, to wit: “As to Carruth’s possession and use, there was great uncertainty; still I thought, and so said to the jury, that it had been sufficiently shewn that he had exercised for twenty successive years, without interruption, the right of flooding the plaintifls’s land, and that therefore the prescriptive right was established, and would defeat the plaintiffs’s action, had it not been, that at least from ’26 to ’34, a period of 8 years, the dam was down, and for that period, that Parkins, his wife and children, had cleared and cultivated the land, and thus ended the easement by setting up an adverse use of their own soil for a period of time which would have barred any action which the defendant or those under whom he claimed, could have brought to assert the right by prescription. Hence I came to the conclusion, and so said ¡to the jury, that the prescriptive right in Carruth was extinguished, when Patterson in ’34 rebuilt the dam. Since then there could be no prescription.”

The question for the Court is whether the defendant Dun-ham, or those under whom he held title, had, by the disuse of their prescriptive right for the space of eight years, and by the plaintiffs’s cultivation of their land during the same time, lost, abandoned, or been in any way deprived, according to law, of such prescriptive right.

In deciding this question, we may assume that the pre-scrintive right, usually called an easement or servitude, being once perfected by grant, or prescriptive use, is attached to the inheritance, and passes to all purchasers of the freehold. The objections to the particular prescriptive right claimed by Dunham, consist in its disuse for eight years, and the actual cultivation of the plaintiffs’s land, over which his easement extended, for the same time. We are therefore to consider, 1. could the statute of limitations have afforded any bar to the easement? It surely could not. The right or easement consists in an incorporeal hereditament, intangible, and could not be in the possession of the plaintiffs. The cultivation of their own land was a right exclusively in themselves, which the prescriptive right of Dunham could neither diminish nor enlarge. These two rights are consistent, and independent of each other; the one to cultivate, the other to overflow, the plaintiff’s land. The latter might practically diminish the profits of the former; but could not destroy the right or prevent the use. The cultivation, therefore, of the land was no interruption of the easement, any more than the use of the easement could interrupt the right of the land, or its use. In a word, the plaintiffs’s land was held subject to the easement, as its incident; and the easement was consistent with the cultivation of the land.

How then could the lawful cultivation of the land without the easement, be construed the possession of the easement? We can see in the fact nothing but the suspension of the use of the easement. We have therefore to resort to a very different principie of law to deprive the defendant of his ease-_ ment, for example, express grant; or long disuse, which may ' presuppose such grant, or an abandonment by the defendant the easement. But none of these appear from the evidence, unless it be from the disuse of the easement, for eight years. But this of itself is entirely too short a time to presuppose either an implied grant of the defendant, or a wilful abandonment.

3 Camp. 514.

10 Pick. 210. p. 81.

3d vol. 448.

2 McC. 452 River's v. ’ Lawton.

2 Wash R 106; Mun.429; ^Mooliv1’ Kowson, io Com. L. R. 216- mvlass ’ 289. 13 Mass. 120; 3 Kent, 448.

Iam unaware of any fixed time by the law, for supposing the abandonment of such a right; though, by analogy, it may be supposed to be 20 years or more. In White v. Crawford the Judges say “as to the loss of the right by non user &c., we are not aware of any rule or principle.” Went. 275, says, “The precise period requisite to extinguish the right of way by non-user does not appear to have been settled by the English Courts.” But in Emerson v. Wiley, the Judges say, “A right of way is not lost by non user for less than 20 years.” See Angel on water courses, for the same negative doctrine. And the appellant’s counsel noticed, that by the civil law, 20 years non-user was fixed for the loss of a prodial servitude, as well as for its original acquisition. On this head see also 23 Pick. 216-17; Mass. 289. Chancellor Kent says, “The mere non-user of an easement for 20 years will afford presumption of a release or extinguishment,” &c. “ There must” he says “ be a total cessation of the right, &c for 20 years, or a permanent obstacle permitted to be raised for that time.” I would not venture therefore to fix any time f°r proving, by a non-user, the abandonment of such an easement. But it would appear to be always for the consideration of the jury, as a question of fact and intention. And assuredly legal rights once vested, ought to be divested to law. Doubtless, the party claiming the prescriptive right, may shew by his acts, an abandonment in a shorter time- But it is a question of intention, for the jury. Returning now more strictly to the case before the Court— it would seem, to have afforded but little more than the ques-^011> whether the defendant had abandoned his right in the easement; which would of course have been a question of intention, proper for the determination of the jury. And on ground alone, a new trial is ordered.

Evans, J. — Wardlaw, J. — Frost, J. — and Withers, J. concurred.

O’Neall, J. absent at the argument.

Motion granted.  