
    Thomas J. Jarman v. Abraham Freeman.
    [Submitted January 22d, 1912.
    Determined March 22d, 1912.]
    1. Where a deed grants the use in common of a passageway extending on one side of the lot granted between the lot granted and the land of the grantor, as a private way for travel and drainage, and the grantor reserves the fee, the grantee cannot enlarge the easement to accommodate land other than that to which it is* appurtenant, and has only the right to enjoy the estate granted, while the grantor, who owns the fee in the way, and whose rights are not founded in grant, may use his property for any purpose consistent with the full enjoyment of the easement, but he cannot extend the use of his way to other lands so as to impair the easement which he has granted.
    2. A use of a way by one under a claim of right at such times as his convenience and business needs require for the purpose of hauling goods to and from a building is' such a continued use as will in time ripen into a prescriptive right, and the use, if unauthorized, invades a clear legal property right calling for the exercise of injunctive relief.
    Final Fearing on pleadings and proof.
    
      Messrs. Chandler & Robertson, for the complainant.
    
      Messrs. Bourgeois & Coulomb, for the defendant.
   Leaming, V. C.

The facts of this case, as they appeared at the return of the order to show cause for a preliminary injunction, are set forth in 78 N. J. Eq. (8 Buch.) 464. A preliminary injunction was denied because it was then thought that complainant’s conduct had induced defendant to erect his’ warehouse at the end of a certain alley in the belief that he would be permitted by complainant to use the alley, which use the bill sought to restrain. But for that aspect of the ease a preliminary injunction would have been, issued at that time.

At final hearing it has been established as'a fact that defendant erected his warehouse with full knowledge that complainant- would contest any effort upon defendant’s part to use the alley for the purpose of hauling goods to and from that building.

A further examination of the views expressed by me at the preliminary hearing touching the rights of the parties, in the absence of the equitable bar referred to, confirms the views then expressed. My conclusion then was that the owner of the servient tenement could not, against the owner of the dominant tenement, extend the use of the way to lands other than those for which the way was established hy, the terms of the grant, when such added use should be operative to interfere with the full enjoyment of the easement in behalf of the dominant tenement or to increase the burden of repair which accompanied the easement.

It is now manifest that the continued use of the alley by defendant for the purpose of hauling goods to and from his warehouse will not only interfere with the full enjoyment by complainant of the easement as contemplated by the grant, but will also necessarily increase his burden of- repair. The grant to complainant vests in him the right to use the alley as a way for the benefit-of his adjacent land at any time;' this right is in common with, and is to be exercised in connectipn with, a similar right of use of che alley by the owner of the fee for the benefit of his adjacent land. It follows that the right of use of the alley thus vested 'in complainant is only restricted by the similar right of the owner of the-fee, and any extension of the use of the alley hy the owner of the fee for the benefit of other lands is necessarily operative as a restriction of complainant’s privileges coextensive with the magnitude of the extension, and the burden of repair is in like manner increased by the extended use.

Complainant’s legal title to the easement is not denied, and the nature or extent of the rights incident to such an easement is not in substantial dispute. The answer asserts as a defence acquiescence on the part of complainant and avers that the use ' of the alley by defendant will not interfere with its use by complainant or add to the burden'of its maintenance. The evidence offered to sustain- the defence of acquiescence fails to disclose any acquiescence in the use of the alley for any such purposes as the same is now being used by defendant. The claim that defendant’s use of the alley will not disturb complainant’s use or add to the burden of maintenance also fails. It is clearly unnecessary for the evidence to disclose any specific instance in which defendant has excluded complainant from the, use of the alley at a time when complainant has desired to use it. The evidence discloses that the use which defendant has been making of the alley, and whieh he proposes to continue to make of it, is under claim, of right to use it in such manner and at such times as Ms convenience and business needs shall occasion for the purpose of hauling goods to and from Ms warehouse. Such use is a continuous use and will in time ripen into a prescriptive right. This class of invasions or threatened invasions of & clear legal property right calls for the exercise of the preventive powers of this court.

I will advise that an injunction issue restraining defendant from using the alley in question for the purpose of hauling goods to and from his warehouse.  