Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1902-03-24
LAW COURT DECISION.
James H. Bonney ct al. VS.. Chester
Greenwood.

The following decision has been
handed down by the law court in the
case Of James II. Bonney ct al. vs.
Chester Greenwood:
Rcscript by Whitehouse, j.
This is an action on the case to re
cover damages for the destruction o
an easement claimed by the plaintlfts
in a stairway and hallway of the de,
PENDANTS building, and also for the OBJ
structicn of a passage-way I'VE feet II
width on the land of the defendant.
1t is among the essential qualities OF
every easement that there are two dis
tinct tenements or estates, the domi-
nant to the which the right belongs
ana the servient upon which the obi
cation is imposed. Hence an easement
properly so called, may survive the de-
struCtion of a part of the servient es-
tate when there is anything remaining
upon which the dominent estate may
operate. But the right to the use and
enjoyment of a privilege in a particu-
lar building of another, which does not
involve any interest in the soil apart
from the building. is eXtinguished by
the destruction of the building for the
- obvious reason that nothing remains
upon which it can operate. The pro-
grcssiVe development of social and in
dustrial life in our cities and villages
is constantly demanding buildings and
structures of different size and charac-
ter from those required in the genera
ton gone before; and a division wall
adapted to the necessities of one pro-
prietor, may soon become inapplicable
to the purposes and needs of the other
II is manifest that after the fire in
1856. the parties interested acted upon
the assumption that all easements in
the building and partition wall in ques-
tion had been eXtinguished by the de-
struction of bot h buildings.
The new buildings erected in pursli-
ancc of the mutual covenants of 1885,
were so constructed that all parts OF
each could be occupied and enjoyed in
dependently of the other. The conduct
of both parties was wholly incompatible
with the continued existence of the
easement claimed.
Before the erection of the building
now standing on the defendants lot,
the plaintiff Metcaf had actual notice
of the agreement of 1887, accepted pay
ment from the defendant of his proper
tional part of the cost of the wall and
allowed the defendant to erect his
building in the belief that all prior
agreements had been superseded by the
mutual covenants of 1887. He was silent
when he should have spoken, and he
must be deemed to be equitably
estopped to assert the right now
claimed in the defendants building.
With respect to the passage-way five
feet across the defendants land. the
Inference is equally irresistible that the
owners of the plaintiff lot Intentionally
relincuished all rights and privileges
previously enjoyed in the defendants
lot. as well as in the building. The acts
Ct the defendant owners are wholly in
compatible with the continued exist
ence of any such easement
The openings for windows made BY
the plaintiffs in the existing party wall
were made in violation of the rights
of the defendant, and could lawfully be
closed by him. provided no unnecessary
injury was thereby done to the adverse
party.
Judgment for defendant.