No. 4.] RURAL LAW. 183 



removal of crops, etc., will not be extended to iillow the 

 owner of the dominant estate to lay out his land into build- 

 ing lots and erect houses thereon, and make of the right of 

 way a street for the purpose of convenient access to the 

 houses. 



But most of the difficulties encountered in this subject of 

 rights of way arise from their creation by what is called 

 prescription. This means not simply twenty years' continu- 

 ous and uninterrupted enjoyment by the owner or successive 

 owners of the dominant estate of a right of way over the ser- 

 vient estate ; a good deal more than that is required. It must 

 be taken and used under a claim of right, not by permission 

 (for that would destroy the prescriptive character of the 

 right), and it must have been enjo3^ed with the knowledge 

 of the owner of the servient estate. It must be acquired 

 " under an adverse claim of right," and against persons 

 legally competent to object. A prescriptive right of way 

 can never be obtained against a minor or an insane person ; 

 and ownership of the servient estate by such a person sus- 

 pends the operation of the prescription during the period of 

 such minor's or lunatic's ownership. But where there can 

 be clearly proven twenty years' adverse use of a right of 

 way, the easement is thoroughly established, on the assump- 

 tion, that is, the doctrine is based upon the fiction, that there 

 is supposed, after such a lapse of time, to have been an 

 ancient grant conferring the right claimed. 



The lawful use of a private way implies the right and the 

 duty to keep it in reasonable repair. These belong and 

 rest upon the owner of the easement; and, if the owner 

 of the fee obstructs the way, the easement holder may pass 

 over the adjoining land of the servient estate. The owner 

 of the land may erect bars or gates at the entrance of tiie 

 way, and, if the owner of the right of way leaves them down 

 or open, and cattle escape or intrude, the latter would be 

 liable for damage done by the estrays. 



An easement may be renounced, extinguished or modi- 

 fied even by a parol license granted by the owner of the 

 dominant tenement and executed by the owner of the ser- 

 vient one. When the Providence Railroad Avas laid out, 

 the county commissioners, acting under statute authority, 



