
    John G. McCullough and Frederic B. Jennings, Respondents, v. The Broad Exchange Company and George A. Fuller Company, Appellants.
    
      Excessive use of ah easement, enjoined— what is -r- an easement acquired by deed extinguished only by grant m- adverse possession —equity abhors' forfeiture—the con- ( struction on a lot, enjoying a dominant easement of passage over a court and alley, of a •building which also covers other lots not entitled thereto—- right of the owner of the servient tenement to restrain the use of the court and alley by the occupants , and for the uses of such building — easement not adjudged, to be forfeited.
    
    An unlawful" or excessive use of-an easement may be. enjoined.
    Where .the'nature and extent of the use of the easement is-unrestricted, the use by the dominant tenement may be enlarged or changed, but the owner of the- ■ dominant tenement may not subject, the servient tenement to'servitude, or use m connection with other premises to which the easement is not appurtenant.
    An easement acquired by deed , is not extinguished by non-user, but omy by • grant, or adverse possession. ,
    Equity abhors forfeitures and’ will in a proper case relieve Against their enforcement, and will not aid their enforcement, even where ."it. would hot interfere against the same at law. .
    
      A partition deed embracing a number of lots contained a covenant “ that for the mutual advantage of all the property,” partitioned and conveyed, an open area constituting a part of such property “shall be forever left as an open space, and shall be unencumbered by any erection (except such walks as now cross the same) for the purpose of giving light and air and ingress to and egress ■ from all the premises herein described; said open spaces'as they now exist shall be maintained in good order and kept in cleanly condition at the joint and equal, expense of all parties hereto,” and that the covenant should be held to be a covenant running with the land.
    It also contained a covenant with respect to an alley constituting part of the premises conveyed that such alley “ shall forever be left open to the present height of the same, as a means of ingress and egress for the advantage of all the property hereinbefore conveyed and partitioned.”
    ‘Thereafter the Broad Exchange Company acquired title to one of the lots embraced in the partition deed (which lot was dominant to the easement in the area and alley before mentioned), together with a number of other lots not. embraced in the partition deed. It constructed on the entire plot a single office building twenty stories in height and designed for the accommodation of " about 7,000 occupants. The plant supplying heat and power to the entire building was located in that portion thereof which had been erected upon the lot dominant to the easement. All the' coal used in the entire building and all the waste paper, ashes, sweepings and refuse which accumulated therein were ■conveyed through the alley and across the open area subject to the easement. There was also a door opening from the building upon the area which enabled employees and tenants of all parts of the building to use the area and alley. .The office space in that part of the building standing upon the lot dominant to the easement was only, one-fifth of the entire'office space of the whole building. Such building was constructed with connecting halls and stairwaj's throughout and with interdependent relations between its various parts, but it appeared that it would not be impossible to so alter or arrange the building as to permit the easement to be usqd solely for the advantage of that portion thereof which was constructed upon the lot dominant to the easement.
    In an action brought by the owners of the servient tenement against the Broad Exchange Company to obtain a decree declaring the easement in the alley and area forfeited and extinguished, it was
    
      Held, that in view of the possible destruction or removal of the office building, and of the fact that it. was not impossible to so arrange the building that the easement in the alley and area could be used only for the benefit of that part of the building situated upon .the lot dominant to the easement, the owners of the servient tenement were not entitled to a decree adjudging the easement forfeited and extinguished:
    That the owners of the servient tenement were entitled to an injunction restraining the Broad Exchange Company from using the easement and from furnishing occasion, or Extending- by implication or otherwise any invitation, to the • tenants or persons having business with the tenants to use the easement until .such time as. the building should be so changed, altered or arranged as to permit the enjoyment ,of the easement for the advantage of the dominant tenement, only, with leave to the Broad Exchange Company to apply to the- court at the; foot of the judgment, on notice to the owners of the servient tenement, when. • that time shall have arrived, tb vacate the injunction as to the dominant tenement, leaving the injunction; however, to stand permanently as to the remaining premises. . ' .
    O’Brien, J., dissented.
    Appeal -by the defendants, The Broad Exchange Company and. another, from a judgment of the Supreme Court in favor of the-plaintiffs, entered in the office of. the clerk of the county Of New York on the 11th day of March, 1964, upon the report of a referee.
    
      Edward E. Sprague, for the appellants.
    
      Austen G. Fox, for the respondents.
   Laughlin, J.:

The action is brought to obtain .a- decree forfeiting and extinguishing the easement of the defendant, The Broad Exchange Company,, for ingrpss and egress through an alley way from its premises, formerly known as No. 52 Exchange place, over an open area andi plaintiffs’ premises to Beaver street. The easement was granted! in a partition deed bearing date the 20th day of June, 1879,. which embraced premises Nos. 38, 40, 42 and 52 Exchange place,. Nos. 25, 27 and 29 William'street, and 51- and 53 Beaver street,, and the buildings and premises in the rear. The defendant,. The Broad Exchange Company, has succeeded to the title, to the premises No. 52 Exchange place and the building in -the rear thereof,, and the plaintiffs own the premises Nos., 51 and 53 Beaver street. The easement related to' an irregular open area in the interior "of the block inclosed by the premises partitioned, all of which abutted thereon, and to a covered alleyway ten feet in width over the premises 51 Beavér street connecting the open area with Beaver street. It was expressly covenanted “ that for the mutual advantage of all the property ” partitioned and conveyed the open area “ shall he ■ forever left as an open space, and shall be unencumbered by any erection (except such walks as now cross the same), for the purpose of giving-light and air and ingress to and egress from all the prenb ises herein described; said open spaces as they now exist shall be maintained in good order and kept in cleanly condition at the joint and equal expense of all parties hereto,” and that the eovenánfc should be held to be a covenant running with the land. The covenant with respect to the alley is.that it “shall forever be left open to the present height of the same, as a means of ingress and egress •for the advantage of all the property hereinbefore conveyed and partitioned.” It appears that at the time the partition deed was " executed there were two low brick buildings on the premises known as No. 52 Exchange place, the one fronting on the street covering the lot to the depth of 107 feet and the one in the rear being 34 feet in width, covering the lot within a few inches, and 116 feet in length. Both of these were office buildings. Prior to the commencement of the action the defendant, The Broad Exchange Company, became the owner of four lots known as Nos. 44, 46, 48 and 50 Exchange place lying immediately to the east of its premises No. 52 Exchange place, having an aggregate frontage of about 89 feet.and 6 inches and extending in depth 102 feet and 4 inches, and of several irregular lots adjoining No. 52 Exchange place on the west known as Nos. 54 and 56 Exchange place and Nos. 25, 27, 29, 31 and 33 Broad, street, having an aggregate frontage on Exchange place of about 124 feet and 9 inches and of 106 feet and 8 inches on Broad street. None of these lots except said No. 52 Exchange place was embraced in the partition deed or had appurtenant to it any right or interest in the covenants or easements mentioned in the partition deed. These several lots together formed practically a parallelogram 236 feet long on Exchange place and 106 feet wide on Broad street with the addition of the lot about 34 feet wide by 116 feet deep in the rear of the center of the parallelogram", it being the lot in the rear of No. 52 Exchange place and entitled to the enjoyment of the easement in connection therewith and for brevity in the opinion it will be deemed part of and referred to as No. 52 Exchange place. The Broad Exchange Company is a New Jersey corporation and after acquiring title to these lots and about the 1st day of May, 1900, it caused plans to be prepared for the erection of a single office building thereon twenty stories in height with front entrances on Broad street and Exchange place and a door in the rear opening upon that part of the premises which was dominant to the easement upon the rear courtyard or open space referred to in the said partition • deed. This building was designed for the acqommodation of about seven thousand occupants, and was to have eighteen passenger elevators and a common heating and power plant for all. The building was constructed in accordance with- the plans-by the defendant George A. Fuller Company for the Bl’oad Exchange Company, and prior to the trial of the action- it was completed and opened for the reception and occupation of tenants. The boiler and machinery for heating the building and operating the elevators are in that pkrt of the premises appurtenant to ■ the easement, but the heat and power -are distributed into those parts of the' building beyond the lines of the Original lot No. 52 Exchange place, which alone was dominant to .the-easement. It is ■ found by the court that the building was erected without'regard to the lines of lot No. 52 Exchange place, and that it was designed as one concrete structure with connecting halls and stairways- throughout, and with interdependent relations between its various parts. The office space in that part of the building standing upon the lot formerly known as No. 52 Exchange place constitutes only oné-fifth of the ■ entire office space of the building. The average consumption of coal for the'generation of heat and power in the building is between • twenty and twenty-three tons per day. When the building was planned it was intended that the coal should be brought in through this alley and across the open area and transmitted to tire furnace ■room through coal chutes,, and this course has been .taken. The ashes from the furnace were designed to bezand are removed over the areaway and through the alley. Each of the 'eighteen passenger elevators affords access to any part, of the building, and. eight of them are entirely upon the .original dominant lot and seven others, are partly over it. The waste paper, sweepings and' refuse from the entire office building are deposited in bins, near the door opening into the open- area referred to and removed via the ’alley. Employees and tenants of all parts of the building may use the doorway-opening upon the area, at will for passing out ■ to ' Beaver street or-to the building from Beaver street, and some of them avail themselves of the "opportunity thus afforded for-using the area and alley. The trial. court has found' that by thus constructing and using the office building the appellant Owner has so materially-changed the condition of the originally dominant tenement as to increase the burden of the servitude upon the servient tenement of the plaintiffs, and to subject the servient tenement to the service of premises other than the premises originally dominant, and to render it impossible to separate the enjoyment of the original right from the enjoyment of the excess beyond the original right, and to make impossible the legitimate use of said easement.” It has accordingly been decreed that the appellant owner has forfeited all its right to the enjoyment of the easement, and that the same is forever forfeited and extinguished, and it is perpetually enjoined from using the same.

We find no definite evidence indicating that it would be feasible . or practicable to alter the building in such manner that the tenants of that part of it which is constructed on the premises formerly known. as No. 52 Exchange place might be separated from the others, and in the exercise of the lawful fights of the appellant owner be permitted ■to use the alley and areaway for ingrbss and egress or that the power plant and other use of which complaint is made might be likewise separated. However, it is not impossible to make this separation —it is self evident that it is only a question of expense — and if the owner wishes to do so we see no reason why it should not be permitted. Moreover, the office building may be destroyed or otherwise demolished or removed at any time, and in that event it would seem that the owner should be permitted to enjoy the easement in connection with that part of his premises to which the easement was appurtenant. The erection of the building upon its own land was lawful and does not work a forfeiture of the easement. (Rexford v. Marquis, 7 Lans. 249,1262; Greene v. Canny, 137 Mass. 64; Tapling v. Jones, 13 C. B. [N. S.] 876.) An unlawful or excessive use of an easement maybe enjoined, but it is difficult to see upon what principle of law the court is authorized to declare it for-_ ever and altogether forfeited and extinguished because of an unauthorized or excessive use,. It is a valuable property right and we know of no authority for transferring its title against the will of the owner, except by due process of law involving just compensation. ■It is also conceivable that an authorized and unauthorized use may he‘so intermingled as to justify enjoining any use until the circumstances have so changed that the authorized use may be permitted without affording opportunity for the unauthorized use which it would be difficult to discover or prove. If this be the rule, a situation is'here presented justifying an injunction, not against the excessive use merely, but restraining any use until the building is so altered or changed that that part of it which is on the dominant tenement may enjoy the easement without permitting its enjoyment by the tenants and occupants of other parts of the building who have no right thereto. Where the nature and extent of the use of the easement is, as here, unrestricted, the use' by the dominant .tenement might, of course, be enlarged or changed (Allan v. Gomme, 11 Ad. .& El. 759; Arnold v. Fee, 148 N. Y. 214; Gillespie v. Weinberg, Id. 238; Dand v. Kingscote, 6 M. & W. 173; Sloan v. Holliday, 30 L. T. Rep. [N. S.] 757); but the owner of the dominant tenement may not subject the servient tenement to servitude or use in connection with other premises. to which the easement is not appurtenant. (Williams v. James, L. R. 2 C. P. 577.) It is manifest, therefore, that although the 'appellant as owner of the dominant-tenement might have lawfully devoted it to a use that would have authorized and required a greater burden on this easement and right of way than has now been imposed, yet the tenants of those parts of ’ the building not erected upon the premises Ho. 52 Exchange place have no right to use the,easement and the owner has no right to enlarge the use of the easement for the benefit of those parts of his office building which are upon premises other than the dominant tenement. This applies to the removal of ashes, sweepings and refuse as well as to bringing coal. It is not needful to inquire whether the owner of the dominant premises might establish thereon a plant for developing heat, light or power- and transmitting the same to other premises for hire and thus subject the right of way to a more extensive use than that to which it is now put. That might be a question of law and it might be a question of fact depending on the reasonableness of the use. ( Williams v. James, supra.) The case is not analogous to the.present situation. The coal and the heat and; power generated thereby are used directly for the benefit of the dominant tenement and adjacent premises of the appellant owner. It is no different in principle than if there were separate power plants and the coal was passed over the .dominant tenements for use on- the other premises which the appellant clearly would have no right to do. (Skull v. Glenister, 16 C. B. [N. S.] 81; Davenport v. Lamson, 38 Mass. [21 Pick.] 72; Webster v. Bach, Freem. 247; Lawton v. Ward, Ld. Raym. 75.)

It is to be borne in mind that this right of way and easement were acquired by deed and the rule is that such an easement is not extinguished by - non-user but only by grant or adverse possession. (Smyles v. Hastings, 22 N. Y. 217; Welsh v. Taylor, 134 id. 450; Parker v. City of St. Paul, 47 Minn. 317.) Here there was no adverse possession and nothing has been done with the intention of relinquishing the easement; but on the contrary it has been constantly enjoyed and the complaint merely is of a use-nnauthorized in part. It was formerly held in England that the easement of ancient lights ” might be lost or suspended, until the premises were restored to their original condition, by enlarging or changing the position of the windows, but it is doubtful whether that rule still prevails (Tapling v. Jones, 13 C. B. [N. S.] 876); and moreover it was never given place in our jurisprudence (Parker v. Foote, 19 Wend. 310) and would not be applicable to this case if it had. The appellant and those using the easement without authority would doubtless be liable to the plaintiffs in damages (Dennis v. Sipperly, 17 Hun, 69; Rexford v. Marquis, supra, 249, 262; Davenport v. Lamson, supra Shroder v. Brenneman, 23 Penn. St. 348; French v. Marstin, 32 N. H. 316); but it is manifest that it would be next to impossible to show the damages or to enforce the rights of the plaintiff under an injunction confining the use to the tenants of and those using the dominant tenement. Equity abhors forfeitures and will, in a proper case, relieve against their enforcement, and will not aid their enforcement even where it would not interfere against the same at law. (1 Pom. Eq. Juris. [2d ed.] §§ 450, 459.) Tet the appellant owner is responsible for the situation which enables its tenants and employees to use the easement and render it impossible for the plaintiffs- to know which have and which have not a. right to such use. Therefore, while equity will not destroy the appellant owner’s easement,- it will grant the relief necessary to preserve the rights of the plaintiffs It is manifest that these rights can only be effectively preserved by enjoining the appellant owner from using the easement while its premises remain ,in their present condition.

The appeal in form is by both defendants, but it is treated in the appellants’ points as being by the Broad Exchange Company only and no point is made that the injunction was unnecessary as against the Fuller Company which has completed its- contract.

The judgment should, therefore, be modified by striking out, all provisions relating to a forfeiture of the easement and modifying the injunction so as to enjoin and restrain the appellant owner, its officers, agents and employees, from using the easement and from- furnishing occasion or extending by implication or otherwise any invitation to the tenants or persons having business with the tenants to use the easement until such time- as the building' shall be so changed, altered or arranged as to permit the enjoyment of the easement for the advantage of the dominant tenement only, with leave to the appellant owner to apply to the court at the foot of the judgment, on notice to the plaintiffs or their successors in interest, when- that time shall have arrived, to vacate the injunction as to the dominant tenement, leaving the injunction, however, to stand permanently as to the remaining premises, and as thus modified the judgment should be affirmed, without costs of the appeal to-either party.

' Van Brunt, P. J., Patterson and Hatch, JJ., concurred ; 0’Bri¡en, J., dissented.

O’Brien, J.

(dissenting):

This action involves the question as to whether- an. easement in and to an alleyway crossing plaintiffs’' property has been extinguished by an excessive and unlawful use- thereof by defendants.

The easement was originally created by a partition deed dated June .20, 1879, which: contained the covenant that a certain alleyway leading from Beaver street through the premises now owned by plaintiffs should <f forever be left open to the present height, of the same as-a means of ingress and egress for the.advantage.of all the. property hereinbefore conveyed and partitioned.”- At the time-of the grant the portion- -of the partitioned premises which comprised the dominant estate was occupied by two brick buildings -not over four stories in height. Sometime before the commencement of this action the defendant, The Broad Exchange Company, became ’the owner of the. dominant estate, together' with the old'houses still, remaining thereon, and it also acquired eleven adjoining lots, none of which had any easement,-right of way or interest whatsoever in the alley. It then removed the old buildings and erected an office building twenty stories in height, accommodating about 7,000 regular occupants, which building covered the entire plot, including the original dominant estate and also the adjoining non-dominant lots. It is apparent that this building as erected was intended to he maintained as'a permanent improvement upon the property, and was designed to be used as an entirety, without regard to the boundaries of the dominant and non-dominant lots. In that portion of the structure which occupies the original dominant estate has been placed all the coal vaults, and the boilers in which the the steam is generated that passes through pipes to all other parts of the building for the purpose of heating it. Here is also generated the power for lighting the building and running the elevators. This arrangement necessitates the use of the alley for the purpose of bringing all the coal for supplying the heat, power and light for the entire building. The coal amounts to about twenty tons a day, conveyed in two-liqrse trucks of the average capacity of four tons each, and not only is the plaintiffs’ property subjected to this additional burden, but the alley, is also used by the defendant for the removal of the ashes caused by the consumption of the large amount of coal, "and it is further used for removing the refuse and sweepings from the entire building, which are first deposited in the courtyard and thereafter from time to time moved out through the alleyway, the average amount of the refuse so removed being about fourteen two-horse truck loads a month, each truck load having a capacity of four tons. In addition to. this, numerous employees and tenants of the building use the alley for the purpose of "passing to and from, Beaver street, access to the building from the alley being by means of a door leading to a corridor which in turn leads to the main hall- and affords communication with the entire building. All of these facts- were established practically without contradiction, and the plaintiffs claim that they show an unlawful and excessive use of the alley, which cannot be separated from its lawful use and cannot be enjoined without also enjoining all use of it, for which reason whatever easement the defendant company might have had therein by reason of the grant of 1879 must be declared to be extinguished.

■The issues were referred to a referee to hear and determine, who ■found that the defendant company had unlawfully increased the burden of the servitude upon the said premises of the plaintiffs;” that it “ has rendered it impossible to separate the use and enjoyment of the said easement as appurtenant to the said lot from the use and enjoyment- thereof by the adjoining premises which have no right or interest therein or thereto, and has thereby forever forfeited, extinguished and altogether destroyed the said easeme'nt as' to said lot;” and that the plaintiffs are entitled to a judgment to that effect, and also pei’pétually enjoining and restraining the defendants, their agents, servants, etc., from using said, alleyway for the purpose of ingress to or egress from the -new building.

From the judgment, entered in conformity with'the referee’s report the defendants have appealed. For the reasons stated in. the two opinions of the'learnéd' referee, I am of the opinion ■ that this judgment is right." There can be no doubt from the uncontradicted evidence and as found by the referee, that. defendants by their acts have attempted to impose a burden upon -the servient ■estate, far in excess of that which was legally contemplated or provided for by the grant. It may be. admitted that the defendants, as ■owners of the dominant lots, had the right to change the characters of the buildings upon that property from what they were when the ■easement was created, and to use the alley for egress and ingress to whatever structure they might thereafter erect upon .that dominant estate (Arnold v. Fee, 148 N. Y. 214), but they have done more "than this. They' have taken a tract of land to which the plaintiffs’ premises were not servient, and lipón this tract as well as upon the dominant estate, they have erected an immense office building, and .they are' using the alley for the purpose of furnishing access to that ■entire building in the manner already pointed out. By this conduct they have subjected the plaintiffs’ premises to-the burden not ■only of the original dominant estate, but also of the large additional tract of land with the buildings thereon.; This the defendants ■could not lawfully do so. In Rexford v. Marquis (7 Lans. 249) the conveyance of land with a public house thereon included the use •of a lane through the grantor’s premises' for the purpose of passing to and from the rear of the public house, and the court held that, the grantee of aright of "way to one piecé of land could not- make use of it to pass into another and.adjacent piece. It was there said: “ The doctrine is well settled that the owner of a right of way across one piece of land to another, cannot use it to pass into an additional piece owned by him, and which lies adjacent to it. (Howell v. King, 1 Mod. 190, 191; Colchester v. Roberts, 4 M. & W. 769, 771; Wash, on Ease. 60, 18; Shroder v. Brenneman, 23 Penn. 318; French v. Marstin, 21 N. H [4 Hort.] 143.) Nor can the right of way be extended and enlarged without the assent of the parties beyond the purpose originally intended. (Allan v. Gomme, 11 Adol. & E. 759, 772, 7fl; 3 P. & D. 581;, Wash, on Ease. 192.) ” In Jamison v. M’ Credy (5 Watts & Serg. [Penn.] 129) two tenants in common constructed a canal through their- property and thereafter divided the estate, each reserving the common use of the canal'for the benefit of himself, liis heirs, assigns and tenants, and each covenanting that he would not use the water or .water power otherwise than upon his respective lot. , In considering the easement created by this deed the court held fhat one party had not the right to bring coal over the canal for the purpose of depositing it upon his lot and then taMhg it to. an adjoining lot to be used in a' steam mill. In Greene v. Canny (137 Mass. 61) it is said that “ when intended to give access only to particular premises, they '(private ways) cannot be used to reach thereby other lands.”

In Abbott v. Butler (59 N. H. 317) the court in construing a grant of way to and from ” B & O’s land said: Had the. way been reserved for the benefit of that land the defendant could not use the way to accommodate some other tract of land adjoining or • lying beyond.” In Smith v. Porter (10 Gray, 66) the court construed a grant of liberty to pass and repass over my land where it is necessary,” and held that such a grant conferred “ a right of way to and from those lands only which the grantee owns at the date of the deed.” The court there said: “ It is not pretended nor could that position have been maintained if ic had been assumed, that this servitude extended to or could have been availed, of by the grantee in connection with any other lands to which he might subsequently have acquired a title.”

In Springer v. McIntyre (9 W. Va. 196) the owner of a right of way to a lot extended the way through that lot to one adjoining and the court held-that the -'defendant could not claim--'the- -right- to> increase-this- burd'eri or charge upon -these servient -lots or-stibdiviisioris; which was -niadé for thtebénefibof' one, soásdo. increase them, '.by serving/,another lot -or'- -subdivision. • Oh this propositidh" there is^ a'Concurrence and agreement in the authorities'to a uniformity -that:. is seldoih met with Ini difficult legal -questions;’-’ ' - •" ' .

<- -The law being thus'clearly defined upon t-liis point, and- it -appear-'ing without dispute that - the - defendants "have made 'the .plain tiffs’ estate subservient,'to-'á tract-df- land .other than the dominant -estate* ■wéaré- confronted"-w'Éh-the mecéssity -of-determining the remedy that yhould be? granted'’td-the plaintiffs fd'r the ■ wfong. which they have'heehmade'tó-'siffiér through'the’défehdants-’-'rnisconduct: - - The rulé governing-'such a 'sittiátibn is- stated in'Reeves-on Peal Pfbpérty. (§d95)'to be'now; established: both in England lap'd iri-'-this Conti ti-yp so fainas -the 'Question lias árisen-her'e,ás follows-:-. *‘ If 'that which is? wrorig-ftilly and excessively-claimed of-'epfoyedi caá be distinguished?-, and Separated from- that :ivhich.-isnghtfi'illy Owned,- this will be-doné'' and-only'the iéxcesSivé-mriiohn-t- will-be tabéri'away -and: prohibited.:" ■ Wáeri,:ho*evérpsuch separatidn arid-distinction cannot be mad entilé prohibitionU'dffthe- excessive -claim:results in''the destftictibn also -df* the entilé original' f-igh't:.’’-'>'iTbis-pñhciplé is"also'coñfirmed in WashJ burri.dn -Peal Property (6th 'ed. § -Í ÉTO); where it is said : “ If - one . who has/an-'eáséníeñ-t for One purposepsucli- as'a'fbotwáy'fbr instance,; use: it' for-'- ahotheroas fdr- Carriages'; itwiil 'net give- a-fight -to- tlie owner-of ;thehserv-ient - éstate - to -stop' the uSe -'altogether;-''sd-'as to’ - d'épriée'-fhe Jdr túéf df -his fbotw'ay, - for-the' rightf ul usd -in süCh- case: may-bé -sépafated from that which is'^fdrigful"? Put 'if-the" owner of the' ddmin'antmstaté.extend-'hig-'easémeteihianqthe'fé'láhd-béybhdwhat-'he.hás'a;-righb-td:erijóy,''aB'd- d-bes -it iii-stich a way'"that’'the ¿Wner' df: th'é-séfviept estate''cahñot-'stép--tÍie‘exetes'sivé usé'withótit stopping the-úse -altogether^ tiié»la^¥-l6iáiy36(l^fol?y-a'ó- sb'.-”'

-- Mitiye-bdeh’ tihable-'td- fin'd-any ádjudiéatidní iñ this8bu-ütíy where tlibroourts' in: ñpplyingbthis- füle-'-ha-vé': éxtiñguishé'd' -¡ari 'éahémenfr" because of a'n excessive and unlawful user which^cóuld-'hbEbé'sépa-í rated* fíbm.’alawfu'l;usef./.án'd'-thé Englishcisésiá-which-'t-his; remedy. Bás-beeb-app-liéd^aré íliosétiwhéré-'-íhé' ówhéf'df'‘ahóhtáédiad áfe^úSéE ■by prescription an'easememt.oí(Íight(and: ,air?-¿hrough ancient windows, and where, by altering and enlaigahg:s-iich-wi¥do.ws,-the courts-' declared that he had' extinguished the original easement • In Renshaw v. Bean, (18 Ad. & El. [N. S.) 111) the plaintiff being the owner of a house with ancient windows rebuilt it, added an upper-story, opened windows in that story, enlarged the ancient windows, and otherwise altered their position. The defendant subsequently rebuilt his premises, thereby darkening the windows in both the upper and lower stories of plaintiff’s house, and it was held that as plaintiff by his own alterations exceeded the limits of his right, audit being through the nature of such alterations impossible for the defendant in. the lawful exercise of his own- rights to obstruct such excess without at the same time obstructing the plaintiff’s former right,, the plaintiff must be considered as losing his former right, at all events until he restored his house to its original condition. In Hutchinson v. Copestake (9 C. B. [N. S.] 863) the court said that where windows to which a right has been acquired are so far altered in their position' and size, and confused with portions of new-windows, that the'owner of the servient tenement cannot prevent a right, being gained to the new windows without obstructing such: portions' of the old windows as have been mixed up with the new lights, no right of action arises from such necessary obstruction of the remaining portions of the old windows.” In Heath v. Bucknall (L. R. 8 Eq. CaS. 1) the court pointed out the growth of the law ' upon this subject in England and approved' the following ruler “ Where a house having ancient lights is burned or pulled down and rebuilt, and the 'question arises whether the character of ancient' lights which belonged to the windows of the old house attaches to those of the new house, it appears- to me that the principle to be . applied to the solution of the question is this, to inquire whether the new windows would impose on the servient tenement either an additional servitude to that to -which it was subjected when the old house existed, or a different servitude from that- which previously existed. * * * To deprive them of ■ that character (ancient lights) the change must be- material either in the nature or in the' quantum, of the servitude imposed.”

' The same principle which in these cases is applied to an easement of light and air must also govern the easement of access' to certain, property over the lands of. another, and the decisions cited, it seems' to me, are clearly authority for holding that the present easement has' been extinguished by the excessive and unlawful use made of it by the defendants. There can be no difference in this respect between' an easement acquired by prescription, or user, and one acquired by grant. An easement by prescription is merely one by an implied grant. The intention of the parties as to its náture and extent is to be determined by their use of the servient and dominant estates. Here the easement is not by ah implied grant but by an actual one, ■ and its scope must be determined by tlie intention of the parties as expressed in the grant itself. ‘ That grant which created the easement limited it “ for the mutual advantage of all the property hereby partitioned and conveyed.” - It restricted tlie use of .the alley to such' purposes as might be required for the benefit of that property alone. Having determined, therefore, the intent of the parties and the extent of the easement, it is governed by the rules above stated, irrespective of whether it was acquired by prescription or by grant. In Allan v. Gomme (11 Ad. & EL. 159) and in Henning v. Burnet (8 Exch. 187) rights of way created by grant were-treated the same - as those which had been acquired by prescription, the former ease holding that the defendant, who had a right of way by grant to a stable, etc., was not entitled to use that way for the purpose of, passing to a newly-erected cottage on the lot. In Allen v. San Jose Land & Water Co. (92 Cal. 138;, 15 L. R. A. 93) the California court cited with approval the English rule in a case where the plain-' tiffs were the owners of a servient estate, the easement consisting of a ditch filled with water flowing across- their' land. The defendants attempted to. place a pipe- line across the' land in plaóe of the ditch, whereupon the plaintiffs brought an action to restrain such a change, and the court said : “ Will the terms of a grant for an open ditch of water be satisfied by laying an underground jflp' line We are -clearly- satisfied to the contrary, and that such a course if continued would result in an extinction of the easement and the création of a servitude upon plaintiffs’.land differing in kind from, the one previously existing there.” (Also, see note 15 L. R. A. 93.)

Erom these authorities I think it was established that the plaintiff is entitled to the judgment which has been rendered in his favor. As already pointed out, there is an excessive and unlawful use of the alley; and it is impossible to separate, the burden imposed upon the servient estate by the portion of the building on the dominant lots from, the burden imposed by that portion standing upon the non-dominant lots. The structure, which occupies the entire plot, was designed and intended to be used as an entirety. Its use cannot be separated so as to conform a part of it to the boundaries of the original dominant estate. The coal used for the heating of one part cannot be separated from that used for the heating of another part. There can be no arrangement made by which tenants of one part can be prevented from using a certain doorway which the tenants of another part are permitted to use. In other words, the excessive use is inseparable from the lawful use of this easement and it cannot be enjoined without at the same time restraining its. lawful use; therefore, the original easement itself is extinguished.. It is true this decision works a hardship upon the defendants, but it must be remembered that such hardship’ is caused by their own wrongful acts ;■ and to deny the plaintiffs the relief to which they are entitled would cause equally á hardship to them, which they should not be called upon to bear, as they are innocent parties. .

For these reasons I think judgment declaring the easement extinguished and restraining defendants from using the alley should be affirmed.

Judgment modified as directed in opinion, and as modified affirmed without costs. 
      
      24 N. H. (4-Fast.) 443.— [Rep.
     