Re-entry, when and how to be made. Notice not necessary before action. expired, but not before,' the landlord may re-enter, $243. Whenever the right of re-entry is given to a grantor or lessor in any grant or lease, or otherwise, such re-entry may be made at any time after the right has accrued, upon fifteen days' previous written notice of intention to re-enter, served in the mode prescribed by section 241. Laws of 1846, ch. 274, § 3; same stat. 3 R. S., 5 ed., 36, § 12; modified as to mode of service, and extended to all cases in which a right of re-entry is given for the -non-performance of any of the terms of the agreement. $244. An action for the possession of real property leased or granted, with a right of re-entry, may be maintained at any time after the right to re-enter has accrued, without the notice prescribed in section 243. Servitudes attached to land. CHAPTER III. SERVITUDES. SECTION 245. Servitudes attached to land. 246. Servitudes not attached to land. 247. Designation of estates. 248. By whom grantable. 249. By whom held. 250. Extent of servitudes. 251. Apportioning easements. 252. Rights of owner of future estate. 253. Actions by owner and occupant of dominant tenement. 254. Actions by owner of servient tenement. 255. How extinguished. $245. The following land burdens, or servitudes upon land, may be attached to other land as incidents. or appurtenances, and are then called easements:1 1. The right of pasture; 2. The right of fishing; 3. The right of taking game; 4. The right of way;2 5. The right of taking water, wood, minerals and other things; 6. The right of transacting business upon land;* 7. The right of conducting lawful sports upon land;5 8. The right of receiving air, light or heat from or over, or discharging the same upon or over, land; 9. The right of receiving water from or discharging the same upon land ; 10. The right of flooding land ;* 11. The right of having water flow without diminution or disturbance of any kind;" 12. The right of using a wall as a party wall;3 13. The right of receiving more than natural support from adjacent land or things affixed thereto;10 14. The right of having the whole of a division fence maintained by a co-terminous owner;" 15. The right of having public conveyances stopped," or of stopping the same, on land; 16. The right of a seat in church;13 17. The right of burial. These rights are generally called easements (Wolfe v. 'Huttemeier v. Albro, 18 N. Y., 48; 7 Bosw., 546; see 'Race v. Ward, 4 El. & Bl., 702; Manning v. Wasdale, • Tyson v. Smith, 9 Ad. & El., 406; 6 id., 745. Abbott v. Weekly, 1 Levinz, 176. Tabor v. Bradley, 18 N. Y., 109. Northam v. Hurley, 1 El. & Bl., 665. Servitudes not attached to land. Designation of estates. By whom grantable. By whom held. Giles v. Dugro, 1 Duer, 331. Lasala v. Holbrook, 4 Paige, 173. 10 Partridge v. Gilbert, 15 N. Y., 601; Eno v. Del Vecchio, Pitkin v. Long Island R. R., 2 Barb. Ch., 221; Day v. "Lousley v. Hayward, 1 You. & J., 583; Mainwaring v. $246. The following land burdens, or servitudes upon land, may be granted, and held, though not attached to land: 1. The right of fishing and taking game; 2. The right of a seat in church;1 3. The right of burial;2 4. The right of taking rents and tolls; 5. The right of way.3 'McNabb v. Pond, 4 Bradf., 7; Voorhees v. Presb. Ch., $247. The land to which an easement is attached is called the dominant tenement; the land upon which a burden or servitude is laid is called the servient tenement. Wolfe v. Frost, 4 Sandf. Ch., 72. S248. A servitude can be created only by one who has a vested estate in the servient tenement. Earl of Portmore v. Bunn, 3 Dowl. & Ryl., 145, 151. S249. A servitude thereon cannot be held by the owner of the servient tenement. Huttemeier v. Albro, 2 Bosw., 556; 18 N. Y., 48 Tabor v. Bradley, 18 N. Y., 109; James v. Plaut, El., 749. Ad. & servitudes. $250. The extent of a servitude is determined by Extent of the terms of the grant,' or the nature of the enjoyment by which it was acquired. 1 Dixon v. Clow, 24 Wend., 188. 2 Corning v. Gould, 16 Wend., 531. ing ease $ 251. In case of partition of the dominant tene- Apportionment, the burden must be apportioned, according to ments. the division of the dominant tenement, but not in such a way as to increase the burden upon the servieut tenement. The latter clause is added to meet the objection that com- owner of future estate. $252. The owner of a future estate in a dominant Rights of tenement may use easements attached thereto, for the purpose of viewing waste, demanding rent, or removing an obstruction to the enjoyment of such easements, although such tenement is occupied by a tenant. Proud v. Hollis, 1 Barn. & Cr., 8. owner and occupant of S253. The owner of any estate in a dominant Actions by tenement, or the occupant of such tenement, may dominant maintain an action for the enforcement of an easement attached thereto. tenement. Brouwer v. Jones, 23 Barb., 153. owner of tenement. S254. The owner in fee of a servient tenement, Actions by may maintain an action for the possession of the servient land, against any one unlawfully possessed thereof, though a servitude exists thereon in favor of the public. Carpenter v. Oswego & Syr. R. R., 24 N. Y., 655; Wager 244. Extinction of servitudes. $255. A servitude is extinguished: 1. By the vesting of the right to the servitude and the right to the servient tenement in the same person;1 2. By the destruction of the servient tenement;2 3. By the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise; or, 4. When the servitude was acquired by enjoyment,' by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment.5 'Huttemeier v. Albro, 18 N. Y., 48; 2 Bosw., 546; James v. Plant, 4 Ad. & El., 749. Voorhees v. Presbyterian Church, 17 Barb., 109; Regina Corning v. Gould, 16 Wend., 539; 3 Kent, 449; see A servitude created by deed is not extinguished by "Bobie v. Sedgwick, 35 Barb., 329. |