The questions presented by this appeal will, for the most part, be substantially resolved *Page 433 by a determination of the character of the rights created by the indenture of 1851 in the twelve-foot strip mutually set apart by the parties from their respective ownership as a lane or pentway for their use and benefit and that of their heirs and assigns forever. Did they constitute easements personal to the parties, their heirs and assigns, and, therefore, easements in gross, or easements appurtenant to the adjoining land owned by the parties?
An easement of way will never be presumed to be personal when it can fairly be construed to be appurtenant to land. Washburn on Easements (3d Ed.) s. p. 161; Jones on Easements, § 47; Bissell v. Grant,35 Conn. 288, 296; Dennis v. Wilson, 107 Mass. 591,592; Cadwalader v. Bailey, 17 R. I. 495, 499, 23 A. 20. The question whether such an easement is personal, or is to be construed as appurtenant, "is to be determined from the intent of the parties as gathered by the language employed to express it, read in the light of the surrounding circumstances." Chappell v. New York,N. H. H.R. Co., 62 Conn. 195, 204, 24 A. 997;Russell v. Heublein, 66 Conn. 486, 491, 34 A. 486. Among these circumstances are the relation or want of relation of the rights of way to the estate of the person to whom the grant is made, or to the other estate of the person by whom they are reserved or excepted, and the necessity they will meet or the benefit they will contribute in the enjoyment of such estate by its owner.Whittelsey v. Porter, 82 Conn. 95, 102, 72 A. 593;Dennis v. Wilson, 107 Mass. 591, 592; Winston v. Johnson,42 Minn. 398, 402, 45 N.W. 958.
Applying these principles to the construction of the instrument in question, it becomes too apparent to admit of doubt that it created easements in favor of the adjoining lands of the parties, and as appurtenant to such lands. The Wells were then the owners on the *Page 434 north side of the lane as established, and to their land so located the rights given by the instrument attached. Being thus appurtenant to it, they have passed with it to its subsequent successive owners, of whom the last and present is the defendant, unless it has become lost or been abandoned. All the deeds in the chain of title purport to convey the premises with their appurtenances. We have no occasion to inquire whether such language was necessary to accomplish the result indicated. It is there, and it is enough that it is apt and sufficient for the passage of an easement appurtenant, although it may not be otherwise described. Jones on Easements, § 23; Minor Wurts on Real Property, § 87; Smith v. Moodus Water Power Co.,35 Conn. 392, 401; Post v. Smith, ibid. 561, 562; Peck v.Loyd, 38 id. 566, 570; Kent v. Waite, 10 Pick. (Mass.) 138, 141.
There are no facts upon which to predicate an abandonment of rights in the lane by the owners of the north tract, or which tend to establish their loss by adverse user, or in any other way than possibly through the union of the dominant and servient estates in one ownership and possession. It is true, as the plaintiff claims, that an easement of way may become extinguished by the union in the same person of a title in fee to both the dominant and servient estates, or by such union of lesser estates of inheritance in both, which are coextensive, equal in validity, quality and other circumstances of right. Washburn on Easements (3d Ed.) s.p. 518 et seq.; 2 Washburn on Real Property (6th Ed.) § 1316; Atlanta Mills v. Mason, 120 Mass. 244, 251;Dority v. Dunning, 78 Me. 381, 387, 6 A. 6; Thomas v.Thomas, 2 C. M. R. 34, 41, note. If one is held in severalty and the other as to a fractional part thereof by the same person, there will, however, be no extinguishment of the easement. Dority v. Dunning, 78 Me. 381 *Page 435 387, 6 A. 6; Minor Wurts on Real Property, § 107.
But the record here shows no such union of titles. It shows that in 1855 the south or Anthony tract was divided, and the rear portion lying next to the river conveyed to Thompson Wells, the lane being designated as the northerly bound. It does not appear that Mrs. Wells ever had any title to the premises thus conveyed. The title to the north tract was at the time the indenture was executed in Mr. and Mrs. Wells. So far as appears, she never became its sole owner. The finding leaves it entirely uncertain what estates in this land Mr. and Mrs. Wells respectively had. The most plausible speculation from the known facts is, that the fee was in Mrs. Wells, who in 1867, after her abandonment by her husband, conveyed it to the defendant's grantor. Whether or not this speculation represents the fact, certain it is that the record furnishes no sufficient support for the proposition that Mr. Wells ever owned this land in fee. The plaintiff's contention, based upon a claimed union of titles in one person, that there was an extinguishment of the easement as to the defendant's land, in so far as it attached to the lane easterly of the west line of the plaintiff's land, thus encounters two obstacles, one of which, at least, cannot upon this record be overcome. In the first place, as the north bound in the deed to Wells in 1855 was the lane, there is no presumption that he took title to the middle of it, thus bringing him up to the line of the north tract. Seery v. Waterbury, 82 Conn. 567, 571,74 A. 908. Even if he did, it remains that it is not shown that he or any other person was possessed of both the dominant and servient tenements at one time, within the requirements of the rule.
The fact that the defendant has never owned the fee to any part of the land covered by the lane does not *Page 436 militate against his right to keep it free from obstructions. Any structure which could not properly be placed thereon, and which constituted an obstruction to his free and full use of the lane in his rightful enjoyment of the easement, would be removable by him as a nuisance. Greist v. Amrhyn, 80 Conn. 280, 290,68 A. 521. The fact that the fence which he took down did not wholly prevent passage up and down the lane did not save it from being an unlawful obstruction. Erected as it was, without reasonable justification or purpose, it was a nuisance abatable by him, if it materially interfered with his reasonable enjoyment of the easement, or rendered that enjoyment less beneficial or convenient than before its erection. Wood on Nuisances, § 172; Dickinson v. Whiting, 141 Mass. 414,6 N.E. 92.
We are asked to correct the finding in four particulars. In one instance we are asked to incorporate a finding of a conclusion of law from facts found, and an incorrect one, as we have had occasion to notice. Another request deals with a subject upon which there was conflicting evidence. The remaining two relate to immaterial matters. No correction is made.
There is no error.
In this opinion the other judges concurred.