Biglow v. BalCiting, Brook v.

full and complete possession of their land. lerino, 111 Cal. 559 (44 Pac. Rep. 307). Horton, 68 Cal. 554 (10 Pac. Rep. 204); City and County of San Francisco v. Burr, 108 Cal. 460 (41 Pac. Rep. 482); Com. v. Inhabitants of Westborough, 3 Mass. 406; Hobert Co. v. County of Plymouth, 100 Mass. 159; Jackson v. Hathaway, 15 Johns. 447 (8 Am. Dec. 263); Barclay v. Howell's Lessee, 6 Pet. 498; Nicholson v. Stockett, Walk. (Miss.) 67; Elliott, Roads & S. p. 188; Ang. & D. Highw., § 326.

Sec. 207.

Destruction or change of an easement by owner of servient estate. Ordinarily the use of land by the owner of the servient estate will not ripen into title to an existing easement unless such use be inconsistent with the use of the easement; but where a railway company having an easement in the nature of a right of way incloses a portion of the same and the remainder is inclosed by the landowner and used by him for agricultural purposes for the full period of the statute of limitations, the easement of such portion is destroyed. Matthews v. Lake Shore & M. S. Ry. Co., 110 Mich. 170 (67 N. W. Rep. 1111). The owner of the servient estate cannot, without the consent of the person having the easement, change its location. Manning v. Port Reading R. Co., 54 N. J. Eq. 46 (33 Atl. Rep. 802).

Sec. 208. Removing lateral support-Making excavations-Measure of damages. In a recent case the authorities are reviewed and it is held that while a landowner has the undoubted right to excavate close to the boundary line, he must take reasonable precautions to prevent his neighbor's soil from falling. If he has taken such reasonable precautions, and yet the soil falls from its own pressure, he is still liable for injury to the land, but not for any injury to the superstructures. If the pressure of the superstructure causes the land to fall, he is not liable either for injury to the land or superstructure. If he fails to take such reasonable precautions to protect his neighbor's soil, and to preserve it in its natural state, he is liable for the injury to both the land and the superstructure, if the pressure of the superstructure did not cause

the land to fall, and it fell in consequence of the failure to take such reasonable precautions. Gildersleeve v. Hammond, 109 Mich. 431 (67 N. W. Rep. 519; 33' L. R. A. 46). S. Dak. Comp. Laws, § 2784, provides that " each conterminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land, subject to the right of the owner of the adjoining land to make proper and usual excavations on the same for purposes of construction, on using ordinary care and skill, and taking reasonable precautions to sustain the land of the other, and giving previous reasonable notice to the other of his intention to make such excavations." Under this statute it is held that the notice required may be verbal and that the party making the excavation is only required to use ordinary care and skill and to take reasonable precautions to sustain the land of the other, but not the land with its superincumbent weight. Novotny v. Danforth, 9 S. Dak. 301 (68 N. W. Rep. 749). Citing, Ulrick v. Trust Co., 2 S. Dak. 285 (49 N. W. Rep. 1054). The measure of damages in an action for the removal of lateral support is the diminution of the value of the plaintiff's land by reason of the falling, caving or washing of the soil of the land as the natural result of removing its natural support. Schultz v. Bower, 64 Minn. 123 (66 N. W. Rep. 139).

Sec. 209. Washing away quicksand by a city sewer. It is held by a divided court, that where a city constructs a sewer in the street adjoining the property of an abutting owner and such property is damaged by reason of the quicksand which supports its surface being washed into the sewer and carried away, the city is liable in damages on the ground of its being a removal of the lateral support. The objection of the dissenting opinion is put upon the ground that the withdrawal of the support or barrier of soil to subterranean water is not a wrong, and that the support of quicksand which flows so freely ought to follow the analogy. Cabot v. Kingman, 166 Mass. 403 (44 N. E. Rep. 344; 33 L. R. A. 45).

Sec. 210. Light and air. Where a parcel of land held in common is severed into two tracts by quitclaim deeds simultaneously interchanged by the tenants in common, and there

is a store on one of the two lots, with a window through which light and air is received across the other lot, such window cannot be closed by the owner of the latter lot if the influx of light and air is reasonably necessary to the beneficial enjoyment of the store. By reason of the apparent and continuous quality of this enjoyment of light and air, the right to enjoy them will, upon severance of the title to the store from the title of the adjoining property, become an appurtenance of the former. The maxim, "Expressio unius est exclusio alterius," excludes only those matters which are so germane to those expressly mentioned as to raise the presumption that the former were in the mind of the parties when the express grant, contract, or limitation was executed. A court of equity will enjoin the obstruction of an easement of light and air unless the threatened interference is so slight as to be compensatable by the payment of a small amount of damages. Greer v. Van Meter, 54 N. J. Eq. 270 (33 Atl. Rep. 794).

EJECTMENT.

EPITOME OF CASES.

Sec. 211. As to when the action will lie. In Mary. land it is held that an equitable interest will not support an action of ejectment. Paisley v. Holzshu, 83 Md. 325 (34 Atl. Rep. 832). It is held that the heirs of a fraudulent conveyee who has never been in possession, should not be allowed to recover land of a defendant who has purchased it for full value, without fraud on his part, from the fraudulent conveyor, who was in possession exercising ownership and control over it at the time of the purchase of him. Harton v. Lyons, 97 Tenn. 180 (36 S. W. Rep. 851). In Virginia it is held that in order to maintain ejectment "the plaintiff must show the legal title in himself and a present right to the possession under it at the time of the demise laid in the declara

Russell v. Allmond, 92 Va. 484 (23 S. E. Rep. 895). While a railroad company is lawfully in possession of land

under incomplete proceedings for condemnation of the right of way, ejectment will not lie against it. Rudd v. Farmville & P. R. Co., Va. (24 S. E. Rep. 386). Massachusetts Pub. Stat., ch. 175, § 1, gives a purchaser at a sale under a power contained in a mortgage of real estate, the right to recover by summary process and his right is complete when the foreclosure is completed. If prior to bringing such proceedings, notice of the change of title be necessary, want of such notice will constitute a defense. Lewis v. Jackson, 165 Mass. 481 (43 N. E. Rep. 206). A wife may maintain the action against her husband. Kimbrough v. Kimbrough, 99 Ga. 134 (25 S. E. Rep. 176). A joint owner of an undivided interest in lands cannot maintain an action of ejectment for the whole, and in such an action is entitled to recover only such interest in the premises as he may have. Nye v. Lovitt, 92 Va. 710 (24 S. E. Rep. 345). One who has disposed of his estate in land cannot maintain ejectment against a third person for its possession. Salcido v. Genung,

Ariz.

(43 Pac. Rep. 527). Where a joint action for land is brought by several persons and the evidence shows that one of them is not entitled to recover for the reason that as against him the defendant has a good title by prescription, there can be no recovery at all. The rule in such cases is the same whether the action be in the statutory or fictitious form. McGlamory v. McCormick, 99 Ga. 148 (24 S. E. Rep. 941). Ejectment will lie on the part of an abutting owner to remove a permanent obstruction placed in a street. Thomas v. Hunt, 134 Mo. 392 (35 S. W. Rep. 581; 32 L. R. A. 857).

Sec. 212. Sufficiency of the complaint. A complaint for the recovery of land is sufficient when it sets out the interests of the plaintiff, describes the premises and alleges that the defendant unlawfully obtained possession, and keeps the plaintiff out of possession, sets out facts showing that the plaintiff is entitled to possession although it does not directly so aver and although there is no prayer for possession. son v. Butt, 4 Okla. 133 (46 Pac. Rep. 596). A complaint is demurrable if it plead evidence and not facts. McCaughey v. Schuette, 117 Cal. 223 (46 Pac. Rep. 666; 59 Am. St. Rep. 176). A complaint in ejectment by a vendor to recover land

Car

from his vendee on account of the latter's failure to perform his agreement, which alleges a tender of the deed by the plaintiff in accordance with the terms of the contract need not set forth a copy of the deed. Haile v. Smith, 113 Cal. 656 (45 Pac. Rep. 872). A complaint defective because it does not allege that the plaintiff is entitled to possession at the time of the commencement of the suit is cured by an answer of the defendant which expressly denies the plaintiff's right to possession at that time. Vance v. Anderson, 113 Cal. 532 (45 Pac. Rep. 816). Under the Nebraska Code Civ. Proc. in an action of ejectment the complaint must allege that the plaintiff is entitled to the possession of the premises sought to be recovered. George v. Mc Cullough, 48 Neb. 680 (67 N.W. Rep. 758). Complaint in ejectment containing fatally defective description cannot be cured by amendment after judgment. Tracy v. Harmon, 17 Mont. 465 (43 Pac. Rep. 500).

Sec. 213. Defenses in ejectment-Particular cases. A tenant defending an action of ejectment cannot complain of the want of a notice to quit where his answer expressly denies the plaintiff's title and sets up ownership in himself. McCarthy v. Brown, 113 Cal. 15 (45 Pac. Rep. 14). In an action of ejectment, where it is shown that, subsequent to the commencement of the action, the defendant had begun proceedings for condemnation of the premises in dispute, and that in those proceedings an order had been made authorizing him to retain possession thereof during the pendency of the proceedings, which were still pending, such order is a defense to the action. Byrnes v. Douglass, 23 Nev. 83 (42 Pac. Rep. 798). Where a defendant is unlawfully in possession of land he cannot prevent a recovery by showing that he does not claim to hold adversely and that before the beginning of the suit he offered to surrender up his possession to the plaintiff. Comfort v. Ballingal, 134 Mo. 281 (35 S. W. Rep. 609). Under the general issue the defendant cannot show want of consideration for a deed from a third person to the plaintiff under which he claims, although the statute (Ill. Rev. Stat., ch. 45, § 19) provides that "upon such plea the defendant may give in evidence any matter that may tend to defeat the plaintiff's action, except as hereinafter provided." Union