this subject. It was there held that a judgment is not res adjudicata, unless the identical matter in issue in the subsequent proceeding was determined by the former adjudication.

What this court said of the force and effect of the deed of the American Radiator Company to the Murphy Chair Company, of May 16, 1901, wherein the Murphy Chair Company accepted the deed which contained the statement that the easement was not released or conveyed, but was recognized and confirmed by the parties thereto, may be said to be res adjudicata of that question.

It appears by the undisputed evidence that when the American Radiator Company purchased the 100-foot strip it did so intending to enlarge its plant; and that between the time that it purchased the said strip and the making of the deed of May 16, 1901, just referred to, it had extended its plant and buildings upon the 100-foot strip, and was using the entire of its premises as one plant.

It appears that a track was laid from the Wabash to the Force & Dickinson parcel, but they used it very little; the great bulk of their business being with the Detroit, Grand Haven & Milwaukee. The Radiator Company never used this track, which did not touch its original parcel; nor did it have any business relations with Force & Dickinson. The track from the Wabash over to the 100-foot strip was removed immediately after the execu tion of the deeds between the American Radiator Company and the Murphy Chair Company in 1901. This is not denied by the defendants; counsel for the defense saying:

"That these tracks were actually removed after the deed of 1901 is probably true, but there is nothing to show that the removal of these tracks was in pursuance of an express understanding; and, inasmuch as the rails themselves did not belong to the Radiator Company, there was nothing that the American Radiator Company could do to prevent their being taken up. The easement given by the 1899 deed, and confirmed by the 1901 deed [from the American Radiator Company to the Murphy Chair Com

pany], expressly requires the American Radiator Company to lay its own track, at its own expense, with the right to others, upon contribution, to use the same, should they desire. In May, 1901, the American Radiator Company did not have need to exercise its easement to the Wabash, but out of 'an apparent abundance of precaution' had its right to such easement recognized and confirmed by the Chair Company. We say 'an apparent abundance of precaution, because opposing counsel now claims that the Radiator Company did not exercise precaution enough in making the Chair Company recognize the intent in the creation of the easement of having it inure to the entire benefit of the Radiator Plant. * * * Why counsel asserts that the Radiator Company should have objected or protested against the Murphy Chair Company removing the tracks to the Wabash by it, at the time the Chair Company accepted a deed recognizing and confirming the right of the Radiator Company to build its own track to the Wabash, we cannot understand."

Counsel further proceed to argue, in answer to the claim of complainants' counsel that no indication had ever been given by the Radiator Company of a desire to build a track until after the institution of the present suit, that this is not true, and in support of his argument he quotes from a letter from the vice president of the Radiator Company, bearing date May 23, 1907, showing that it was deemed

"Important for us to have a right of way to a second railroad, even though but one is used, and, as before stated, we always endeavor to have this arrangement at all of our plants." Stansell R. p. 95.

This is urged as evidence of the fact that the Radiator Company considered the easement a valuable one, and therefore it declined to release the same to the complainant.

It should be borne in mind that the easement granted to Huyett, in April, 1885, and which has by mesne conveyances come to the Murphy Chair Company, was the first easement created over the 30-foot strip. It was then supposed that Harper avenue would be opened. The rec

ord shows that two attempts were made to open it, but both failed; and it has never been opened. Ever since 1885 this original Chair Company property has been continuously used as a manufacturing plant. It is claimed by the Murphy Chair Company that since 1885 the 30-foot strip has been continuously used as the only outlet to Russell street from its said plant. Its important value to the Murphy Chair Company is apparent. It appears that the easement has been used continuously by as many as 100 vehicles a day, and by hundreds of the employés and customers of said complainant, during all of the years that have intervened. It is urged that not only is it the senior easement, but that its untrammeled enjoyment by the Murphy Chair Company is of paramount importance. It is also urged that all subsequent easements were accepted with knowledge of its existence (the Huyett deed having been recorded on June 4, 1885), and that the use of the right of way for teams and persons was open, notorious, and continuous. These easements are appurtenant, and not in gross.

An examination of this record satisfies us that the easement of the Murphy Chair Company is both prior and paramount. Mr. Lothrop, owning the 30-foot strip in fee simple absolute, in 1885 granted a right of way over it to Huyett, his heirs and grantees, and the latter conveyed it to the predecessor of said complainant. As the result of this grant, Mr. Lothrop retained the right to use the 30foot strip in any way he chose, except so as not to interfere with the user under the Huyett grant.

After the Murphy Chair Company had used this easement as a right of way in its business for over 14 years, the Radiator Company purchased an easement to construct and maintain a railroad track across or along said strip. Mr. Lothrop could not sell, nor could the Radiator Company buy, such an easement, except subject to the Huyett grant of 1885. We think that this view is sustained by the following authorities: Harvey v. Crane, 85 Mich. 316 (48 N. W. 582, 12 L. R. A. 601); Fankboner v. Corder, 127

Ind. 164 (26 N. E. 766); Walker v. Newhouse, 14 Mo. 373; Harris v. Curtis, 139 App. Div. (N. Y.) 393 (124 N. Y. Supp. 263); Schmidt v. Brown, 226 Ill. 590 (80 N. E. 1071, 11 L. R. A. [N. S.] 457, 117 Am. St. Rep. 261).

The purchaser of an estate which is charged with an easement which is discoverable upon examination, such as an open and visible roadway, takes his title subject to such easement, to the extent his grantor is bound thereby.

In so far as the use of the 30-foot strip by the defendants for railroad purposes interferes with the Murphy Chair Company's user for right of way, under the Huyett grant, the last-named grant is paramount. This is so, not only because the grant to Huyett was the senior grant, but also because that grant gave the user for a right of way generally for vehicles and persons to pass to and fro; and any subsequent grant which impairs that right must be subordinate to the grant of such right of way. See, also, West Jersey, etc., R. Co. v. Traction Co., 65 N. J. Eq. 613 (56 Atl. 890); Mayor, etc., of Newark v. Railroad Co., 75 N. J. Eq. 20 (71 Atl. 620).

It is equally true that the owner of the easement cannot prevent another, even a trespasser, from using the land, if his use does not impede the free exercise of the right of passage. The right of the Murphy Chair Company, in the exercise of its easement over the 30-foot strip, confers only the right of passing over it, together with such rights as are necessarily incident to its reasonable enjoyment as a way, such as keeping in passable condition, etc. While we do not mean to hold that said complainant's right of way is exclusive, we do hold that its right to a reasonable, free use as a passageway should not be interfered with by the defendants. It is elementary that an easement once granted is an estate which cannot be abridged or taken away, either by the grantor or his subsequent grantees. On the other hand, the grantor of the easement of a right of way may use the way in any manner he sees fit, provided he does not unreasonably interfere with the grantee's reasonable use in passing to and

fro. The owner of the right of way has the right to a reasonably unobstructed passage at all times, and also such rights as are incident or necessary to the enjoyment of such right of passage. 1 Boone on Real Property, § 143b. We cannot agree with the complainants in the claim that the easement of the defendant the American Radiator Company has been lost by nonuser. It is an easement by grant; and a user so created cannot be lost by mere nonuser. Day v. Walden, 46 Mich. 575 (10 N. W. 26); 14 Cyc. p. 1187.

We do not think that the purchase of the 30-foot strip by complainant James F. Murphy, trustee, operated as a merger of the Murphy Chair Company's easement over said property. Had the title been taken in the name of the Chair Company, probably a merger and extinguishment would have taken place for one cannot have an easement in his own estate in fee. Morgan v. Meuth, 60 Mich. 238 (27 N. W. 509); 14 Cyc. p. 1188. We do not think that this view is inconsistent with the holding in Stansell v. American Radiator Co., supra.

In April, 1901, the Murphy Chair Company applied to the board of assessors of the city of Detroit to have the easements over the 30-foot strip assessed separately, so that each party might pay taxes on its own easement. A hearing was had, but no change was made; and this court has since decided in the Stansell Case, supra, that it was the duty of the holder of the fee to pay the entire tax.

In that application the Murphy Chair Company recognized the right of the American Radiator Company to the easement to construct and maintain a railroad track across the 30-foot strip, as appurtenant to the 100-foot strip, to connect the latter with the Wabash, St. Louis & Pacific Railroad Company.

It is urged by complainants that by no possibility can the easement contained in the deed of June 22, 1899, from the Lothrop estate and others to the American Radiator Company inure to the benefit of the original Robertson &