a release of it but the facts show no intention to abandon legally or popularly." There was clearly no abandonment, but rather an unexecuted agreement for a substitution.

The question, what acts constitute the abandonment of a servitude, is one of fact for the triers. Every species of incorporeal right may be abandoned, but a mere disuser can have that effect only where the right depends upon occupation. The right of way may be abandoned when it is shown that the intention to abandon the way accompanies the disuser. In a case where a party entitled to a private right of way had permitted the public to use the way in a manner inconsistent with the private right (The Queen vs. Chorley, 12 Q. B. Rep. 515), the Court held that as an express release of the easement would destroy it at any moment, so the cesser of use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect, without any reference to time; that the period of time was only material as one element from which the party's intention to retain or abandon his easement might be inferred against him; and that what period might be sufficient in any particular case must depend on all the accompanying circumstances. There are certain cases where it may be uncertain whether a party who makes such a disposition of his property as renders an easement unnecessary or useless to him, intends absolutely to abandon the right or to relinquish the privilege during its temporary disuse. It would seem that ordinarily when the works which prevent the beneficial enjoyment of an easement are removed, the possession would be restored, the right not being abandoned, but the possession suspended by such works. In the case mentioned by writers on the Civil Law,' where the owner of a house has secured his light from being obstructed, by a covenant from a neighboring proprietor not to raise his house to a greater height, the former, by the erection of a building between the two houses, renders the negative servitude altius non tollendi ineffectual against his neighbor, and his remedy is gone; but if the intermediate house is destroyed by fire or taken down, the servitude revives, and a right

Domat, Tome 1, Tit. 12, Sect. 6, Art. 4. La Laure, Tr. des Servitut, L. 1, Ch. 8

of action will exist for the breach of the covenant.

In such a

case there exists, as a necessary effect, a suspension of the servitude, but not an abandonment. Something more is necessary to show the intention of abandonment.

The doctrine stated in the Commentaries of Mr. Chancellor Kent, Vol. 3, page 449, is not inconsistent with this principle. If the act, it is said, which prevents the servitude, be incompatible with the nature or exercise of it, and be by the party to whom the servitude is due, it is sufficient to extinguish it, and if it be extinguished for a moment it is gone for ever. In the case above supposed, the act of the party to whom the servitude is due is not incompatible with the right. It merely suspends the cause of action during the existence of the intermediate building. The case cited by the author of the Commentaries as authority for the doctrine, is very questionable: Taylor vs. Hampton, 4 McCord Rep. 96. The defendant Hampton had purchased of Pinckney, in 1807, one hundred and fifteen acres of land, with a mill-pond, dam, and mill in full operation, which continued till 1814. The pond flowed the land of the plaintiff, and the defendant had a right to this flow as a servitude by prescription. In 1814, a new mill was erected by the defendant, above the place where the old mill stood, upon which the water of the old mill flowed; and therefore the lower dam was cut, the water let off, and its use as a mill abandoned by its owner. This dam was, however, immediately repaired, and the water raised occasionally for the purpose of flowing rice; but in general the plaintiff's land was relieved from the former flow, from 1814 to 1823, when the upper mill was burnt, and the old mill was rebuilt in the former place, the water being again permanently raised, and the flow resumed over the plaintiff's land. An action was brought for that injury, and the verdict being for the plaintiff, on a motion for a new trial, Nott, J., delivered the opinion of the Court. The question presented was, whether the erection of the upper mill, the existence and enjoyment of that being incompatible with the use of the other mill by means of this pond, did not extinguish the right of flow formerly enjoyed by the defendant. The Court came to the con

clusion that an extinguishment of the servitude was effected by this act. The ground upon which the Court proceeded was, that the erection of the upper mill operated as an extinguishment of the right, because, during its existence, it was incompatible with the exercise of the servitude in question. But the statement of the case shows that the exercise of the right only was suspended, and that its disuse was only temporary. So far as the intention was to be inferred from the buildings which were incompatible with the right, the intention to suspend the exercise of the servitude only was shown. Some further evidence was required to prove the abandonment. The Code of Louisiana, Art. 246, which declares the principle of the civil law on the subject, and which was relied upon in this case, as in conformity with the rule of the common law, says that servitudes are extinguished when things are in such a situation that they can no longer be used, and when they remain perpetually in that situation. But if things are re-established in such a manner that they may be used, the servitude will only be suspended." By a temporary disuser the possession is suspended, but the right is not abandoned; and the suspension is made to depend upon the continuance of the state of things which is inconsistent with its exercise. It may depend upon the intention of the party whether an abandonment is effected by a disuser, but the intention must be shown as a fact by other circumstances than such as are for a time only incompatible with the exercise of the right. In this very case, the result showed that the use merely was suspended. If the owner of the dominant tenement had declared that on the erection of the new mill he abandoned the servitude, that might have extinguished the right, so that when the mill was afterwards burnt, the proprietor would have been precluded from his right to flow the land; but there was no such communication between the parties, nothing which could operate as a release, and the natural effect of the new disposition of the property was merely to suspend possession.

A case was stated by the Court from Jacobs L. D. 448, tit. Extinguishment, Vol. 1: A. has a stream of water which runs through a leaden pipe; if B. purchases the land and destroys the

pipe, the watercourse is extinct, because by this he declares his intent and purpose that he will not enjoy them together. The intent in such a case would have been a question of fact for the jury. But if other works established by B. had, during their existence, rendered the flow of the water impossible, the nonuser of the right would have operated only as a temporary suspension, if, in the event, the works which caused the obstruction were removed. Even if the pipes by which the water was conducted were destroyed, there would be nothing in such an act in pais, to prevent the resumption of possession, unless the intention to abandon appeared: cessante causa cessat effectus. A very different question would be presented by a case in which the owner of the servient tenement, in reliance upon a presumed abandonment, had acquired rights inconsistent with a resumption of the servitude. It might have been otherwise, also, if there had been a claim of a reciprocal servitude.1

The only inquiry in this case was, whether the party, by the erection of works which might have been and were designed to be

1. Suppose a person," said Mr. Justice NOTT, "to be the owner of a house with ancient lights, which no person has a right to obstruct. If he erects a house or puts up a wall directly covering his window, has he not extinguished his light himself, as effectually as if he had blowed out his candle? Surely then it would amount to the same thing, to put up a similar building on his adjoining lot. Suppose A. to have a right of way over the land of B. If he erects a house on his own land, in such a manner as to obstruct the passage into the lands of B., does he not effectually destroy his right of way? Can he claim a right, the enjoyment of which he has rendered impossible by his own act? Suppose, in the case before us, the defendant, instead of purchasing a mill-pond, with the right of flowing the plaintiff's land, had purchased arable land, with a right of way to haul away his crop. If he had erected the mill which he now has, and thrown the whole of his land under water, by converting it into a pond, would he not have destroyed his right of way? Must Mr. Pinckney have kept open a road which terminated at an impassable lake, a way which the owner himself had voluntarily destroyed? The defendant has, by his own free will and accord, abandoned the privilege to which he was entitled. He has cut away his dam, drawn off the water, and turned his pond into an arable field; he has obstructed the natural current of the creek, and turned it into other channels; he has built a permanent valuable mill on the tand before overflowed by the pond; he has thus relinquished the privileges to which he was entitled, for others which are admitted to be incompatible with the former state of things."

permanent, but were not actually so, had abandoned the right wl oh was incompatible with them during their existence. It is difficult in such a case to discern any sufficient reason for supposing that the disuse of the right was to continue longer than the works wuch prevented its exercise.

There could have been no question of the subsistence of the right, if the owner had declared his intention to resume possession, on the contingency which happened. The intention to relinquish the right absolutely was a fact not to be presumed.

It seems to have been assumed that the abandonment to be presumed from the construction of works incompatible with the exercise of the right, depends upon the intention of the party to whom the servitude is due, so that if the intention to preserve the right, notwithstanding the disuser, is declared, no abandonment will result from any disposition of the property which prevents the possession or use of the right. It is thus apparent that the intention to abandon a right is a fact to be proved, either by the circumstances of the case or the declarations of the party entitled to the servitude. S. F. D.

RECENT ENGLISH DECISIONS UPON LEADING

QUESTIONS.

ANCIENT LIGHTS. EQUITABLE ASSIGNMENTS OF FUTURE ACQUISI

TIONS.

I. There is no subject more important to the practical lawyer than to be able to keep pace with the decisions of courts of last resort upon leading questions. By the imperfect and tardy mode of reporting in this country, it is almost impossible to do this, beyond the limits of the state where one resides. And even in regard to that limit, we often have to depend upon tradition and common report, for the decisions of the courts, for years. While we obtain the authentic decisions of the English courts in the London Jurist and Law Journal, and other English periodicals, by