Case 142. At common law, reciprocal easements of maintenance and support typically accompany party walls in urban properties. But what happens when depreciation or obsolescence of one of the properties progresses to the point that demolition is the only feasible way of restoring an economically advantageous use? The older rule in California held that destruction of a servient tenement, if occurring without fault of the servient tenant, extinguished the easement. A voluntary demolition by the servient tenant contravened the easement. The newer rule permits voluntary destruction by a servient tenant to extinguish the easement, if the servient property has become “economically” obsolete. See Walner v. City of Turlock 230 Cal. App. 2d 399 (1964).
Case 143. The case concerns the permissible subject matter of a praedial servitude, what the common law would call an easement appurtenant. Note that the beneficial interest is understood to be the dominant property itself, rather than the person who occupies the dominant property, and therefore the scope of any mining right within the servitude is limited accordingly. A broader right could of course be granted in the form of the personal servitude of usufruct.
Case 144. How does one determine what limits, if any, constrain the amount of use that is authorized by a servitude? In this case the issue concerns the number of cattle that may be driven from the dominant property to drink water on the servient property. From the facts as summarized, it is not clear whether the measure of quantity is the number of animals, or the size of the herd in a less precise sense, or the number of herds. Would the terms of the grant have made that clear? Perhaps just past practice?
Case 145. Paul’s statement regarding the “servitude” in this case should be understood as referring to a praedial servitude—i.e., a servitude that is attached to a dominant estate. The authority and meaning of this declaration of Paul were at issue in the interesting English case of in Re Ellenborough Park 3 W.L.R. 892 (1955). At issue on appeal was whether a right of enjoyment to a private park could be the subject of an easement appurtenant to properties fronting on the park (as well as certain other properties close by the park) pursuant to a grant that purported to convey such a right to the property owners’ predecessors in interest. In reaching its conclusion that a right of enjoyment could be the subject of an easement, the court briefly traced the history of the common law of easements as follows.
“But these defects in the definition are instructive, because they indicate that the law as to easements was as yet rudimentary.
It was still rudimentary when Blackstone wrote. In fact, right down to the beginning of the nineteenth century, there was but little authority on many parts of this subject. Gale, writing in 1839, said: ‘The difficulties which arise from the abstruseness and refinements incident to the subject have been increased by the comparatively small number of decided cases affording matter for defining and systematizing this branch of the law. Upon some points indeed there is no authority at all in English law.’
The industrial revolution, which caused the growth of large towns and manufacturing industries, naturally brought into prominence such easements as ways, watercourses, light, and support; and so Gale’s book became the starting-point of the modern law, which rests largely upon comparatively recent decisions.
But, though the law of easements is comparatively modern, some of its rules have ancient roots. There is a basis of Roman rules introduced into English law by Bracton, and acclimatized by Coke . . . The law, as thus developed, sufficed for the needs of the country in the eighteenth century. But, as it was no longer sufficient for the new economic needs of the nineteenth century, an expansion and an elaboration of this branch of the law became necessary. It was expanded and elaborated partly on the basis of the old rules, which had been evolved by the working of the assize of nuisance, and its successor the action on the case; partly by the help of Bracton’s Roman rules and partly, as Gale’s book shows, by the help of the Roman rules taken from the Digest, which he frequently and [p. 163] continuously uses to illustrate and to supplement the existing rules of law.”
. . .
The passage which we have read from Sir William Holdsworth sufficiently serves to explain the appearance and the prominence of Roman dicta in the English law of easements, commonly called, indeed, by the Latin name of “servitudes” . . . Thus, according to the Roman jurist, Paulus (quoted by Gale at p. 19), “ut spatiari, et ut coenare in aliena possimus, servitus imponi non potest”: nevertheless, . . . the exact characteristics of the jus spatiandi mentioned by the Roman lawyers has to be considered. It by no means follows that the kind of right which is here in question, arising out of a method of urban development that would not have been known to Roman lawyers, can in any case be said to fall within its scope. And, in any event, its validity must depend, in our judgment, upon a consideration of the qualities which must now be attributed to all easements by the law relating to easements as it has now developed in England.
Cases 147–148. These cases draw a distinction between rural and urban servitudes regarding the issue of whether non-use extinguishes the servitude. At Roman law, non-use of a rural servitude for the requisite limitations period does effect an extinguishment. With an urban servitude, however, non-use by the dominant tenement must also be exploited by an act on the servient tenement that is inconsistent with the servitude’s continued existence. Absent such a “usucapting of freedom” from the servitude by the servient tenant, the servitude remains in force despite its non-use by the dominant tenant. At common law the issues are murkier, because equitable considerations are often invoked. In general, however, the common law does not favor the extinguishment of easements, and non-use per se will not be sufficient to cause it. “There must be an affirmative act of abandonment on the part of the owner of the easement to extinguish the easement.” 25 Am. Jur. 2d Easements and Licenses § 98 (2011).