Smith v. Langewald
4 N.E. 571
Mass.
1885
Check Treatment
Devens, J.

It is the contention of the defendant, that, if he had left the plaintiff’s fence undisturbed, its existence would in *207time have worked the destruction of the easement of flowage which he had over the plaintiff’s land. While a mere non-user of an easement, even for more than twenty years, will not be conclusive evidence of abandonment, such non-user, united with an adverse use of the servient estate inconsistent with the existence of the easement, will extinguish it. Jennison v. Walker, 11 Gray, 423. Owen v. Field, 102 Mass. 90. Barnes v. Lloyd, 112 Mass. 224. Chandler v. Jamaica Pond Aqueduct, 125 Mass. 544.

The owner of the soil over which the defendant claimed an easement had all the rights and benefits of ownership consistent therewith. He was entitled to the herbage growing thereon, and could use it for raising crops or for pasturing his cattle. Perley v. Chandler, 6 Mass. 454. Adams v. Emerson, 6 Pick. 57. Atkins v. Bordman, 2 Met. 457. To construct such fences as would restrain cattle pastured thereon, or exclude therefrom cattle straying from other fields, if of the character of ordinary farm fences, would not, certainly when the owner of the easement of flowage was making no use thereof, indicate any intention to use the land in any way inconsistent with the easement. Such fences would readily permit the passage of the water, even if they interfered slightly therewith, and would be, in some cases, necessary to the owner’s rightful use of his land. They would not be permanent obstructions, as would, be a solid wall prepared so as to exclude water from the owner’s premises. This, even if erected while there was no actual user, might furnish just ground of objection, as putting the right to an easement of flowage in danger, in being distinctly adverse to it.

The defendant urges that, if the plaintiff had erected these fences while his mill was in operation, and while he was asserting his right of flowage, there could be no dispute as to his right to remove them. We are not prepared to assent to this. Even if such structures would have some tendency to check the flow of the water, it might well be contended that such slight obstructions, if necessary to the enjoyment by the plaintiff of his lands for agricultural purposes, could not be held an interference with the defendant’s easement. It is, however, enough for the case at bar to say, that, while the defendant was not exercising his right of flowage, the plaintiff might properly maintain the *208ordinary farm fences required for the protection of his land, and the defendant would have no right to interfere with them. Indeed, the very failure to flow might render such fences necessary by withdrawing the barrier afforded by the water.

Exceptions. overruled.