Winham, King & Aldridge v. McGuire , 51 Ga. 578 ( 1874 )

Trippe, Judge.

1. If money has been expended and investments made by reason of a parol license to an easement on the land of another, and for the enjoyment of the same, such as to back water by the erection of a mill-dam, the licensee is not liable to an action for damages for erecting the dam, either by the party giving the license or by any subsequent owner of the land which is overflowed. Nor is any subsequent owner of the mill and dam, or one who is in possession thereof, liable to an action for keeping up such dam: Sheffield vs. Collier, 3 Georgia, 82. In such a case, as was said in Mayor, etc., of Macon vs. Franklin, 12 Georgia, 239, the licensee occupies the position of a purchaser for value.

2. It is true that to entitle the different possessions to be tacked so as to make out a prescriptive title to land, it is necessary to show succession in the possessions. But an easement, such as the one referred to, is an accessory to a tenement, and passes with it to a subsequent owner, both as against the proprietor of the servient laud who granted the license, and against each successive proprietor: Gale & Whatly on Easements, 7, 8, 354. So that if the present owner of the dominant heritage can show that a former proprietor of the one which bears the servitude, granted the right to the easement, either by deed or by ¡oarol, which became irrevocable by reason of expenditures and improvements under it, and whereby such easement attaches as an appurtenant or accessory to the dominant tenement, he is not bound to connect his title or possession with that of the grantee of such easement. Such proof would charge the plaintiff's land with the servitude, as also it would establish it as a right attached to the land of defendant. The same authority just quoted says, (page 6,) “ considered with regard to the servient tenement, an easement is but a charge or obligation curtailing the ordinary rights of property; with regard to the dominant tenement, it is a right accessorial to these ordinary rights, constituting, in both cases, a neto quality impressed ujjon the respective heritages.”

3. The right to an easement may be lost by abandonment or forfeited by non-user; but the forfeiture will not be incurred unless the non-user be for a period sufficient to raise the presumption of a release or abandonment: Rerick vs. Kern, 14 Serg. & R., 267; Moore vs. Rawson, 3 Barn. & Cr., 332; Liggins vs. Inge, 7 Bing., 693.

4. The motion for a new trial contains the affidavit of a former owner of this mill and dam, which states that he erected the dam some twenty-five years ago, in pursuance of an agreement with G. W. Parker, the then owner of plaintiff’s land. One ground in the motion is this, as well as other newly discovered testimony. This testimony might materially affect the result of the case, under the principle stated with reference to a parol license. The affidavit does not state whether this “agreement” was in parol or not. Ero in the terms used in other parts of the affidavit, it probably was. Plaintiff in error is entitled to the opportunity to use it. Tiie other affidavits were on the question of non-user of the dam. Though probably not of themselves sufficient to authorize the granting a new trial, as evidence on both sides was introduced on that point of the same character, they yet add some force to the claim for another investigation of the case.

New trial granted.