SOUTHERN RY. CO. v. CITY OF MEMPHIS et al., 97 F. 819

LURTON, Circuit Judge (after stating the facts as above). The .grant of the right here involved was “to construct, maintain and operate, in the manner hereinafter provided,” a single-track railway from the then depot grounds of the Memphis & Charleston Railroad Company through the city to the river, by a specified route.

The principal provision in reference to the manner in which the privilege conferred should be used was that cars east of Alain street should be drawn “by horse or other animal power.” The reasons for this conditional easement are not vital to the validity of the prescribed mode of operation, but are found in the fact that Washington street, east of Alain, was devoted to private residences, and any other mode of use was therefore objectionable, as greatly increasing the burdeu of the easement upon the street and abutting owners.

After laying down the track, and otherwise complying with, the conditions of the grant, the railroad company found that, owing to the grade of Washington street, the track thereon could not be operated with horse or other animal power, as required by the ordinance. When this was discovered the company applied for and obtained, by resolution of the city council passed January 7, 1876, the privilege of operating said track until July 1, 1881, by means of a dummy engine.

Upon expiration of that license the company continued to use steam power by sufferance until January 2, 1890, when another agreement was entered into, whereby the city consented to the use of steam power until November 2,1893; the railroad company agreeing that it would not “claim the right to use such steam power after that date, except In so far as it is expressly permitted by said original contract of September 9, 1875.” Alter the expiration of the license thus extended, the company desisted from the use of steam power, and the track lias not been since used for traffic purposes at all.

To preserve as far as possible any right which the company might have to maintain and operate said track, the company, since November, 1893, has been in the habit of daily sending a hand car or railroad velocipede over the track, the motive power being man power. The superintendent, Air. B. B. Pegram, very frankly testifies that the franchise, restricted to animal power, is valueless, and that the track is maintained solely with the hope that the city may at some time consent to the use of some other power.

The facts make a case where an easement to maintain and operate a railroad on a public street has been granted snbject to such conditions as to mode of operation as to render any lawful operation impossible. If, under such circumstances, the right to continue the maintenance of the track upon the street exists, it is a barren right to maintain an obstruction in the public street which is of no possible beneficial use to the grantee, and which is only maintained in the hope that the terms upon which the easement was originally granted may in some future time he so modified as to make its operation practicable.

This franchise was granted in 1876. This bill was filed in 1898. For 22 years this franchise has never been available, and it is now admitted that it is unavailable in ihe terms granted. The use of the track by means of steam power is of no avail in preserving the franchise under the original contract, for that use was by special license, which has expired, and is therefore of no advantage whatever in avoiding the termination of the rights granted.

The right to maintain a track upon Washington street is only accessory to the right of operating it, and, if the right to operate has •ceased, the right to maintain the track is lost. That which is only accessory cannot subsist when the principal right is lost. Washb Easem. (4th Ed.) pp. 699-702; Jessup v. Loucks, 55 Pa. St. 350, 362; Manure Co. v. Donald, 4 Hurl. & N. 8; Day v. Walden, 46 Mich. 575, 10 N. W. 26; Hahn v. Lodge No. 47, 21 Or. 30-34, 27 Pac. 166; Jones v. Tapling, 11 C. B. (N. S.) 283; Mussey v. Proprietors, 41 Me. 34; Central Wharf & Wet-Dock Corp. v.

Proprietors of India Wharf, 123 Mass. 567-570; Willard v. Calhoun, 70 Iowa, 650, 28 N. W. 22; Town of Freedom v. Norris, 128 Ind. 377, 27 N. E. 869. This grant was by the public of an easement in a public street, to a quasi public corporation, and for public purposes. It was intended that the track should be operated as a public facility, and upon this ground only was it admissible at all.

The fact that the track has not, in 22 years of experiment, been used in the only way admissible under the grant, and the conceded fact that it cannot be made available in the only way allowable, operate to terminate the easement. Without regard to any question of abandonment by nonuser, the impossibility of enjoying the easement granted operates to bring it to an end through the inherent limitation of the grant itself. It is like an easement granted for a particular purpose. If that purpose cease to exist, or its enjoyment become impossible, the grant is at an end.

Thus, where there was a reservation of a right of way over flats apnurtenant to uplands, for water craft, to and from a dock or wharf, the easement was held to be extinguished by the subsequent construction by the city of a public street between the plaintiff’s upland and the dock, which made access to the dock and deep water impossible. Mussey v. Proprietors, 41 Me. 34. In Manure Co. v. Donald, 4 Hurl. & N. 8, an easement to take water for the use of a canal was held to cease when the canal was converted into a railroad. Pollock, C.

B., in that case stated the principle thus: “If an easement for a particular purpose is granted, when that purpose no longer exists there is an end of the easement.” In Central Wharf & Wet-Dock Corp. v. Proprietors of India Wharf, 123 Mass. 567-570, Cray, C. J., for the court, said: “The only easement which the plaintiff acquired * * * was made to depend upon an open dock and common passageway for ships and other water-borne crafts. All the covenants, • including those against erecting fixtures or buildings of any kind within the bounds of the dock, were incidental to the grant of this easement.

The laying out of a street and filling up of the dock by the city under authority conferred by statute made the enjoyment of this easement impossible, and thereby extinguished it.” In Washb. Easem. (4th Ed.) p. 102, the principle is thus stated: “But where a way, for instance, is created in favor of an estate for one purpose, or in reference to a particular use to be made of such estate, it ceases to be appurtenant, if the estate is essentially changed in its mode of occupation.

Thus, where a way belonged to an open parcel of land for the use of it as an open parcel, and the owner of the same erected a cottage thereon, covering the entire space, it was held that by such change in the premises the right of way was extinguished.” The same author, at page 702, states the principle as defined by Toullier (3 Toullier, Droit Civil Frangais, 522), as follows: “Servitudes cease when the subjects of them happen to be in that condition that they cannot be used.

As, if the dominant and servient estates go to ruin, or they are submerged, or the house which owes the servitude and that to which it is due are burned or demolished.

It would be the same if the cause of the servitude should cease, — as, for example, if a spring where I have a right to draw water becomes dry, I should not only lose the right of drawing water; I should lose the right of passing over the neighboring tenement, because the right of passage was only accessory to the right of drawing water, and that which is accessory cannot subsist when the principal right is lost” It matters little, in principle, whether the easement as originally granted was incapable of enjoyment for the purposes intended, of whether by change in conditions its .exercise became impossible.

The track, as a mere accessory to the principal right, is incapable of enjoyment, is an obstruction to the public street, and equity will not. interfere to prevent its removal. The decree denying the injunction and dismissing the bill is accordingly affirmed.