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plaintiffdefendantverdictwillleaseeasement
plaintiffdefendantverdictwillleaseeasement

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Jennison v. Walker, 11 Gray 423, 77 Mass. 423, 1858 WL 6506

Facts

In 1800, Phinehas Jennison granted Stephen Dana the right to lay an aqueduct from a spring on Jennison's land to Dana's land, including the right to maintain it. The original aqueduct was used until 1818, after which it was abandoned and portions were removed. In 1855, the defendant, who had acquired Dana's land, attempted to lay new pipes in a different direction due to the construction of a railroad, which made the original route impossible. The plaintiff sued for trespass, claiming the defendant had no right to lay a new aqueduct.

In 1800, Phinehas Jennison granted Stephen Dana the right to lay an aqueduct from a spring on Jennison's land to Dana's land, including the right to maintain it.

Issue

Whether the defendant had the right to lay a new aqueduct in a different direction on the plaintiff's land after the original easement had been abandoned for over thirty years.

Whether the defendant had the right to lay a new aqueduct in a different direction on the plaintiff's land after the original easement had been abandoned for over thirty years.

Rule

An easement cannot be lost by mere non-user, and a release or abandonment will only be implied from a permanent change made by the owner of the dominant estate. The owner of an easement has the right to change the mode of using it, as long as it does not render it more onerous.

An easement cannot be lost by mere non-user, and a release or abandonment will only be implied from a permanent change made by the owner of the dominant estate.

Analysis

The court found that the original easement had been abandoned due to the non-use for over thirty years and the removal of the original aqueduct. The defendant's attempt to lay new pipes in a different direction was not permitted under the original grant, which did not allow for changes in the direction of the aqueduct without consent. The court emphasized that the easement, once exercised in a defined course, could not be altered at the grantee's discretion.

The court found that the original easement had been abandoned due to the non-use for over thirty years and the removal of the original aqueduct.

Conclusion

The court upheld the jury's verdict for the plaintiff, concluding that the defendant had no right to lay the new aqueduct and was guilty of trespass.

The court upheld the jury's verdict for the plaintiff, concluding that the defendant had no right to lay the new aqueduct and was guilty of trespass.

Who won?

The plaintiff prevailed because the court found that the defendant's actions constituted a trespass, as the original easement had been abandoned and the defendant had no right to alter the direction of the aqueduct.

The plaintiff prevailed because the court found that the defendant's actions constituted a trespass, as the original easement had been abandoned and the defendant had no right to alter the direction of the aqueduct.

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