Arnhold

As is the situation in the case of Rayonier, Inc., v. United States, 9 Cir., 225 F.2d 642 , appellants have appealed from a judgment dismissing their complaint insofar as it attempts to state a cause of action against the United States. The allegations of the complaint, in the instant case, are in most part substantially the same as those considered in the Rayonier case.

In the instant case appellants, by an allegation not found in the Rayonier case, attempted to avoid the rule that ordinarily the servient tenant of an easement has no duty to make repairs or maintain the easement and is not liable to third parties by failing to do so, by placing their case within the recognized exception where by contract or long established custom the servient tenant has undertaken such an obligation. The allegation relied on is: “* * * said owner [United States] had for several years prior thereto failed to require defendant railroad to abate the above conditions, or any of them, although it had reserved the right to do so and had done so at various times previous thereto.” Most liberally construed this allegation charges only a prior practice of requiring the dominant tenant to make repairs.…