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The facts are stated in the opinion. Mr. Elmer E. Richards, for plaintiff: Defendant's predecessors in title, by their nonuser in connection with definite acts and statements, lost whatever right or claim they may have had to a way by necessity across the Adams land.

Illinois C. R. Co. v. Houghton, 126 Ill. 233, 1 L.R.A. 214, 9 Am. St. Rep. 581, 18 N. E. 301; Kelly Nail & Iron Co. v. Lawrence Furnace Co. 46 Ohio St. 544, 5 L.R.A. 652, 22 N. E. 639; Moseller v. Deaver, 106

As stated in the former note, mere nonuser of a private way created by grant will not work an extinguishment of the easement therein. Brunthaver v. Talty, 31 App. D. C. 134; Murphy Chair Co. v. American Radiator Co. Mich., 137 N. W. 791; Dulce Realty Co. v. Staed Realty Co. Mo. - 151 S. W. 415.

Thus, a mere nonuser for twenty-three years, not amounting to abandonment, with no adverse use by the owner of the servient estate inconsistent with the continuance of the easement, will not extinguish a right of way. Willets v. Langhaar, 212 Mass. 573, 99 N. E. 466.

And the right of a private way is not lost by nonuser, where twenty years of nonuse has not continued coupled with an adverse enjoyment. Mason v. Ross, supra.

Generally speaking, a private way creat ed by an express grant cannot be destroyed without a new grant of equal solemnity, or adverse possession continuing long enough to create a prescriptive title; nor can it be destroyed by nonuser by the dominant owner, unless adverse occupancy for the statutory period be added thereto. Citizens' Electric Co. v. Davis, 44 Pa. Super. Ct. 138.

There is no way in which a private way created by a grant can be extinguished by abandonment or nonuser, unless there has been, in connection with acts inconsistent with the intent to use, some acquiescence in its obstruction by another for a reasonable period at least, or some representations that would work an estoppel. Brunthaver v. Talty, 31 App. D. C. 134.

Abandonment is as much a matter of intention as of time, and mere nonuser will not defeat the right to occupy a right of way for purposes expressed in a grant, when no time has been stipulated for the use. McAdam v. Benson Logging & Lumbering Co. 57 Wash. 407, 107 Pac. 187.

So a private way in an alley, created by grant, will not be extinguished by reason of the fact that the grantee erects a building extending up to the line of the alley, and constructs in the wall no door opening; this amounts to nothing more than nonuser of the easement, which the grantee can

It is not the duration of the cesser to use the easement, but the nature of the act done by the owner of the easement, or of the adverse act acquiesced in by him, and the intention which one or the other indicated, that is material.

Fitzpatrick v. Boston & M. R. Co. 84 Me. 38, 24 Atl. 432; Dyer v. Sanford, 9 Met. 401, 43 Am. Dec. 399; Pope v. Devereux, 5 Gray, 412; Warshauer v. Randall, 109 Mass. 586.

later avoid by cutting such an opening whenever it suits his convenience. Brunthaver v. Talty, supra.

And where, in an agreement of settlement of condemnation proceedings whereby a railway company obtains a right of way through a farm, there is reserved for the use of the farm a perpetual right to a pass way under the railroad track, even if this pass way is not used for eighteen years, such nonuse could not operate to defeat the right to use it. Cleveland, C. C. & St. L. R. Co. v. Griswold, Ind. App. 97 N. E. 1030.

Likewise, a right of way reserved in a deed in favor of the grantor therein is not extinguished by the erection and maintenance by the grantee of a building across the right of way, where another way around this structure is substituted by mutual arrangement, and acquiesced in for twentyfive years. Hall v. Hall, 106 Me. 389, 76 Atl. 705.

And where land is conveyed to a shipwright, together with a privilege or passageway from a certain creek thereon to a neighboring river, access to the latter being necessary to the grantee since he had his shipyard upon the river, this was held to describe a right of passage over the flats, whether bare or covered with water, at any and all times and by any reasonable method of travel, and, accordingly, such easement was not defeated or extinguished by reason of the fact that the creek dried up, or that the premises conveyed were no longer used as a shipyard, but were used in connection with the business of a diver, who likewise must have access to the same river. Old Colony Street R. Co. v. Phillips, 207 Mass. 174, 93 N. E. 792.

And where one abutting owner holds the easement by grant in a passageway upon the lands of another, the fact that a post is set out and maintained therein by common consent, for the purpose of preventing horses and carriages from using the way beyond a certain point, cannot affect the rights of the parties; when the consent of one party is withdrawn, they are left to their original rights under the deed. Cotting v. Murray, 209 Mass. 133, 95 N. E. 212.

566.

land of strangers, and upon the fourth side by land of the grantor, which extended easterly to the highway or "River road." Neither did Knowlton own, nor have his

This is an action of trespass quare clausum. The defendant justifies under a claim of a right of way, and plaintiff replies, alleging abandonment. It is here upon report.

In June, 1876, one Sylvester conveyed to Samuel D. Knowlton a lot of land in |

for twenty years. Sansbury v. Johnson, 134 N. Y. Supp. 130.

And an easement by implication, resulting from the construction of a building in such a manner that stairways in one side of the building are used for access to the second floor of the other side, will not be deemed permanently abandoned by mere nonuser during a time within which there is no occasion to use it. Kane v. Templin, Iowa,, 138 N. W. 901.

to the premises conveyed him over adjoining lands not at the time of the conveyance owned by his grantor, and his deed is silent as to any right of way. In August, 1876, Sylvester conveyed his remaining land to one Goodwin. At the time of the alleged trespass, plaintiff and defendant had succeeded to the respective titles of Goodwin Kittanning, 225 Pa. 589, 74 Atl. 554. this case the way had been closed for fortyfive years and buildings had been erected thereon for twelve or thirteen years.

In

Likewise, a private way may be extinguished by abandonment for more than thirty years; and this is shown by evidence that it was fenced off and cultivated as a field. Tuttle v. Sowadzki, Utah, -, 126 Pac.

959.

And if the servient owner has acted upon an apparent abandonment by the dominant owner, and if, in regard to him, it would operate unjustly if the exercise of the easement should be resumed in favor of the dom inant estate, added force is given to the claim of abandonment. Ibid.

The intention to abandon is the material question, and it may be proved by an infinite variety of acts. It is a question of fact to be ascertained from all the circumstances of the case, and no one case can be authority for another. Ibid.

So a right of way by necessity will be deemed abandoned and lost after thirty years of nonuser, with no claim of the right, especially when the owner of the alleged servient estate sells some of the land and leases some to other parties, both acts be ing hostile to any easement, and known to the owner of the alleged dominant estate, and amounting to a repudiation of the easement. Bauman v. Wagner, 146 App. Div. 191, 130 N. Y. Supp. 1016.

And a right of way may be lost by being totally obstructed for all practical purposes, by reason of an abutment wall built across it 17 feet high, with a fill sloping down to the level of the way and appropriated by another, continuing thus for seventeen years, and acquiesced in by the owner of the right; the possession of the other must then be deemed an indefeasible right, and this on the ground of an equitable estoppel. Mason v. Ross, 75 N. J. Eq. 136, 71 Atl. 141.

Also occupation of land for twenty-one years, adverse to a right of way and inconsistent with it, bars the right. Jessop v.

is competent to show that the whole original right of way has been for many years inclosed by a stone wall and fences, and that it has been divided in the middle by another fence, and that the land so fenced off has been used and occupied by the respective adjacent owners for raising grass, for gardens, or for other uses incident to private ownership and entirely inconsistent with the use thereof as a way, for a length of time greater than or equal to the limitation period, as evidence that the original easement has been extinguished or renounced by the parties entitled to the fee in the land covered by the way. Faulkner v. Rocket, 33 R. I. 152, 80 Atl. 380.

And it is said in Wimpey v. Smart, 137 Ga. 325, 73 S. E. 586, that the encroachment of a building upon a right of way in an alley for a period of thirty years destroys the right of easement over the portion thus covered, and gives the owner of the building prescriptive title to the encroachment.

Finally, one who has, by reservation in a deed of land to a railroad company, a right to a private grade crossing over the railroad, must be deemed to have renounced and abandoned such private easement when he signs a petition for the appointment of viewers to lay out a public road over his private right of way, thereby forcing upon the railroad company the responsibility of a public crossing at grade, instead of a mere private crossing. McKinney v. Pennsylvania R. Co. 222 Pa. 48, 21 L.R.A. (N.S.) 1002, 70 Atl. 946.

In connection with the report of the last case in 21 L.R.A. (N.S.) 1002, see the note as to extinguishment of easement for a private way by its incorporation in a public way. H. C. Sh.

The latter, however, urges that the right of way of necessity of defendant has been extinguished by abandonment, and in support of her contention relies upon a declaration in the nature of a disclaimer made by Knowlton after his purchase in June, 1876, and prior to the conveyance of the alleged servient premises to Goodwin, the use by defendant and his predecessors in title of ways over lands other than the alleged servient estate, and nonuser.

It is agreed that neither Knowlton, nor any of the other predecessors in title of the defendant, made use of any way over the premises lying between their land and the highway, the alleged servient estate, until August 27, 1911, the day of the alleged trespass. It also appears that for fifteen or eighteen years after his purchase, Knowlton obtained access to his premises by a way over land of a relative, situated in the rear of the premises and extending therefrom to a crossroad running westerly from and at right angles with the "River road," on which crossroad the farm of Knowlton was apparently located. For the enjoyment of this way he paid a nominal sum, obtaining, however, no permanent right. It also appears that at some time during his ownership he cleared his lot, and, by permission and license of the owner of land adjoining his lot upon the south, hauled the lumber through the pasture of the latter to the "River road." The son of the purchaser from Sylvester of the alleged servient estate testifies that, prior to his purchase, his father in his presence inquired of Knowlton "if he had or claimed any right of way from that land in an easterly direction across the remainder of the farm, the balance of the farm," and that Knowlton replied that "he had no right of way, that he had no use for a right of way in that direction, and that he claimed none whatever." As to the character and uses of the tenements, little evidence is offered, but we are, we believe, warranted to infer from the pleadings and the evidence that the servient estate consisted of woodland and pasture, and that the dominant estate was either wholly or in great part woodland.

34 Me. 394, 400; and, although the distinction is doubted in Pratt v. Sweetser, 68 Me. 344, 345, the right of way there under consideration being acquired by prescription, as it was in Farrar v. Cooper, we do not consider that the distinction has been abolished by the case. The distinction is preserved in Massachusetts and other jurisdictions. Owen v. Field, 102 Mass. 90, 114; White v. Crawford, 10 Mass. 183; Arnold v. Stevens, 24 Pick. 106, 112, 113, 35 Am. Dec. 305, 1 Mor. Min. Rep. 176; Welsh v. Taylor, 134 N. W. 450, 460, 18 L.R.A. 535, 31 N. E. 896.

An easement created by deed or grant, whatever may be the rule as to one acquired by prescription, may be extinguished, among other modes, by abandonment, so called, or nonuser and adverse possession for twenty years. New York, N. H. & H. R. Co. v. Benedict, 169 Mass. 262, 267, 47 N. E. 1027. Of adverse possession, however, there is no evidence in this case. Has the casement claimed by defendant been lost by abandonment? The burden of proof upon this issue is upon the party alleging it, and it must be established by evidence clear and unequivocal of acts decisive and conclusive. Dyer v. Sanford, 9 Met. 395, 402, 43 Am. Dec. 399; Eddy v. Chace, 140 Mass. 471, 472, 5 N. E. 306; Hayford v. Spokesfield, 100 Mass. 494; Waring v. Crow, 11 Cal. 366, 5 Mor. Min. Rep. 204; Richardson v. McNulty, 24 Cal. 339, 1 Mor. Min. Rep. 11.

It seems to have been stated obiter, in one case at least, that a parol disclaimer might work an abandonment of a way, a release being presumed (Norbury v. Meade, 3 Bligh, 211, 241, 242); and it has been held in other cases that the denial of the right to an easement, or a declaration of relinquishment of it, coupled with acts on the part of the declarant in furtherance of and conformity to the denial or declaration, is evidence of abandonment and adverse possession (Warshauer v. Randall, 109 Mass. 586, 588; King v. Murphy, 140 Mass. 254, 4 N. E. 566).