#### Mary Hoffman *versus*John Savage and Others.

A right of way, assigned to a dowager, over land of her husband, with her dower, was held to cease with the estate in dower.

This action was in case, for interrupting a right of way claimed by the plaintiff over the soil of the defendants ; and it was tried on the general issue, at the last November term in this county, before *Jaclcson,*J.

The messuage, as appurtenant to which the right was demanded, was part of the estate of *Thomas Savage,*grandfather of the defendants, after whose death it was, on the 7th of March, 1765, divided from the residue, being assigned to his widow as her dower, and in the assignment was thus described ; “ measuring on *Ann*Street' twenty feet, and measuring in depth one hundred and forty feet, and the privilege of a passage-way for bringing in wood, with the rights, members, privileges, and appurtenances, to the same house belonging.”

In July, 1780, partition was made among the heirs of the said *Thomas,*his widow still living, of such parts of his estate g.s were not assigned in dower ; and the *locus in quo*was set off to *Habijah,*father of the defendants. The reversion of all *but Habijah’s*part of the land held by the widow as her dower came, by several deeds, in 1796, to the * plaintiff’s husband, then tenant for years under the dowager, to which her estate was added in October, 1800.

The interruption complained of was by the erection of a wooden *122shop, in 1792, upon the soil where the way was before used. The dowager died before this action was brought.

A verdict was taken for the plaintiff, subject to the opinion of the Court whether, upon the foregoing facts, she had any right of action.

*Savage,*for the defendants.

The interruption complained of existed twenty-four years before the action was brought. This adverse possession is sufficient foundation for a presumption of a release or extinguishment of the easement by the party entitled or claiming to enjoy it. (1)

By the terms in which this right of way was created, it was personal to the widow, and not appurtenant to her estate. The heirs may reasonably be presumed willing to grant to their mother a privilege which they would not be disposed to extend to strangers. (2)

But suppose this a part of the dowager’s estate, and assignable with it, yet it expired with her particular estate. The accessory cannot exist without its principal.

The unity of estate in the defendants has extinguished the way. After the death of tenant for life, the grantors of the way became tenants in common of the reversion, then converted into an estate in possession. (3)

*W. Sullivan,*for the plaintiff.

If the heirs had not changed the title during the life of the dowager, it might be yielded that this right of way would have ceased with the expiration of her estate. But they have assigned this right in fee to the alienee of the widow. This was a confirmation and enlargement of the particular easement.

(1)

 3 *East,*294, *Campbell*vs. *Winslow.*— 1 *B. & P.*400, *Holcroft*vs. *Heel*

(2)

**2 *Black. Comm.*35.

(3)

 1 B. & P. 370, *Whalley*vs. *Thompson.*

*By the Court.*

We are all clearly of opinion that the easement, for the interruption of which this action is brought, was but appurtenant to the freehold estate of the dowager, and expired with that; not that it was personal, and ceased when the widow made an assignment of her * dower. The land over which the easement was established was assigned to the ancestor of the defendants, and the fee vested in him, subject to the easement.

The injury complained of was committed more than twenty years before the commencement of this suit; and it is to be taken for granted, from the facts in the case, that the adverse occupation has continued to the time of bringing the action. This would be presumptive evidence of an extinguishment or grant of the privilege to the tenant of the land. Of this, however, we are not to judge ; for *123it is matter foi the jury, and may be rebutted by testimony tending to destroy such presumption, (a)

Upon the opinion of the Court being disclosed, the plaintiff became nonsuit.

(a)

 Vide *Levett*vs. Wilson, 3 *Bingh.*115. — Sed vide *Cooledge*vs. Learned, 8 *Pick.*509, 510.