Easement

A right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with a general property in the owner. 2 Washb. Real Prop. 25. A privilege, without profit, which the owner of one adjacent tenement hath of another, existing in respect of their several tenements, by which that owner against whose tenement the privilege exists is obliged to suffer or not to do something on or in regard to his own land for the advantage of him in whose land the privilege exists. Termes de la Ley; Bell, Dict. (Ed. 1838). "Easements," "Servitude"; 1 Serg. & R. (Pa.) 298; 3 Barn. & C. 339; 5 Barn. & C. 221; 3 Bing. 118; 2 McCord (S. C.). In the civil law, the land against which the privilege exists is called the "servient tenement"; its proprietor, the "servient owner"; he in whose favor it exists, the "dominant owner"; his land, the "dominant tenement." And, as these rights are usually not personal, and do not change with the persons who may own the respective estates, it is very common to personify the estates as themselves owning or enjoying the easement. 4 Sandf. Ch. (N. Y.) 72; 3 Paige, Ch. (N. Y.) 254; 16 Pick. (Mass.) 522. Easements have these essential qualities. There must be two tenements owned by several proprietors, — the dominant, to which the privilege is attached; the servient, upon which it is imposed. White & T. Lead. Cas. 108; 17 Mass. 443. Easements, strictly considered, exist only in favor of, and are imposed only on, corporeal property. 2 Washb. Real Prop. 25. They confer no right to any profits arising from the servient tenement. 4 Sandf. Ch. (N. Y.) 72; 4 Pick. (Mass.) 145; 5 Adol. & E. 758; 30 Eng. Law & Eq. 189; 3 Nev. & P. 257. They are incorporeal. By the common law, they may be temporary; by the civil law, the cause must be perpetual. They impose no duty on the servient owner, except not to change his tenement to the prejudice or destruction of the privilege. Gale, Easem. (3d Ed.) 1-18; Washb. Easem. Index. Easements are either (1) positive or (2) negative, the former authorizing the commission of acts on the servient estate, and the latter merely forbidding the servient owner from doing some act to the detriment of the dominant owner, as to build to the obstruction of his light. They are also (3) appurtenant, or (4) in gross, the former running with the land, and the latter attached to a person. (5) Quasi easements. "There are rights mentioned in the books as quasi easements. (1) Where there has been an easement proper, with a dominant and servient tenement, and the ownership of such tenements has been unified. (2) Where the owner of land has constructed a way or drain over one portion of it for the benefit of another portion, and there has never been a separate ownership of a dominant and servient tenement. This class is again subdivided into those which are called 'continuous,' as a drain or sewer, which are used continuously without the intervention of man, and those which are called 'noncontinuous,' as a right of way, which can only be used by the intervention of man, repeated at intervals when user is desired." Goddard, Easem. 84; 68 N. Y. 66. Easements are as various as the exigencies of domestic convenience, or the purposes to which buildings and land may be applied. The following attach to land as incidents or appurtenances, viz.: The right of passway over other land; of taking wood, minerals, or other produce of the soil from other land; of receiving air, light, or heat from or over other land; of receiving or discharging water over, or having support to buildings from, other land (3 El., Bl. & El. 655); of going on other land to clear a mill stream, or repair its banks, or draw water from a spring there, or to do some other act not involving ownership; of carrying on an offensive trade (2 Bing. N. C. 134; 5 Met. [Mass.] 8); of burying in a church, or a particular vault (Washb. Easem.; Civ. Code N. Y. pp. 149, 150; 8 H. L. Cas. 362; 3 Barn. & A. 735; 11 Q. B. 666). An easement is distinguished from a license in that it carries an interest, and from a profit a prendre (q. v.) in that it is a privilege without profit.

A right in the owner of one parcel of land, by reason of such ownership, P> use the laud of another for a special purpose ii"t Inconsistent with a general property in the owner. 2 Washb. R. P. 25; Clark v. Glidden, GO Yt. 702, ir, Atl. 358. A privilege which the owner of one adjacent tenement hath of another, existing in respect of their several tenements, by which that owner against whose tenement the privilege exists is obliged to suffer or not to do something on or in regard to his own land for the advantage of him in whose land the privilege exists. Termes de la Leu, Easements; Downing v. Baldwin, 1 S. & B. (Pa.) 298; 3 B. & C. 339; Lawton v. Rivers. 2 M'Cord (S. C.) 451. 1.", Am. Dec. 741; Com. v. Low, 3 Pick. (Mass.) ^<»S; Forbes v. Bal enseifer, 74 111. 183; Oliver v. Hook, 17 Md. 301; Strong v. Wales. 50 Yt. 361; Howell v. Estes, 71 Tex. GOO, 12 S. W. 62; Koenigs v. Jung. 73 Wis. 178, 40 N. W. 801. Although the terms are sometimes used as if convertible, properly speaking easement refers to the right enjoyed by one and servitude the burden imposed upon the other. An interest in land created by grant or agreement, express or implied, which confers a right upon the owner thereof to some profit, benefit, dominion, or lawful use out of or over the estate of another. Huyck v. Andrews, 113 N. Y. SI, 20 N. E. 581, 3 L. R. A. 7S9, 10 Am. St. Rep. 432. In the civil law, the land against which the privilege exists is called the servient tenement: its proprietor, the servient owner; he in whose favor it exists, the dominant owner; his land, the dominant tenement. And, as these rights are not personal and do not change with the persons who may own the respective estates, it is very common to personify the estates as themselves owning or enjoying the easements; Wolfe v. Frost, 4 Sandf. Ch. (X. Y.) 72; Hills v. Miller, 3 Paige, Ch. (N. Y.) 254, 24 Am. Dec. 21S: Boston Water Power Co. v. R. Co., 16 Pick. (Mass.) 522. There are said to be in England five different classes of rights which one man may have over the land of another: Easements, profits;1 prendre, personal licenses, customary rights, and natural rights. Odgers C. L. 5G1. This classification is apparently observed in the English cases. Of these subdivisions, profits;1 prendre and licenses are treated under these titles. "Customary rights" are referred to below. They are more common in England than here. "Natural rights" do not depend upon grant or support to land by adjacent land, the right to the flow of water, and the right to air free from noxious smells. These rights, of course, exist without grant. See Lateral Support; Riparian Proprietors; Nuisance. These distinctions have not always been fully observed in the cases here. The distinction between an ordinary easement and an easement in gross is tbat in the former there is and in the latter there is not a dominant tenement; Jones, Easements 25. Lord Cairns, L. J., said in Rangeley v. Midland R. Co., L. R. 3 Ch. 311, that there is no such thing in the civil law or in England as an easement in gross — an easement not connected with a dominant tenement. Mr. Jones (Easements 25) states that he uses the term "easement in gross" because it is in general use here by legal writers, judges and the profession, and it is useless to attempt to establish a refinement of definition intended to do away with it. On the other hand, Sharswood, C. J., said: "That there may be the grant of an easement in gross personal to the grantee is not to be denied." Tinicum Fishing Co. v. Carter, 61 Pa. 21, 38, 100 Am. Dec. 597. To the same effect are 3 Kent 420; Washb. Easem. 8; Fisher v. Fair, 34 S. C. 203, 13 S. E. 470, 14

A right in the owner of one parcel of land, by reason of such ownership, to use the land of another foE a special purpose not inconsistent with a general property in the owner. 2 Washb. Real Prop. 25. A privilege which the owner of one adjacent tenement hath of another, existing in respect of their several tenements, by which that owner against whose tenement the privilege exists is obliged to suffer or not to do something on or in regard to his own land for the advantage of him in whose land the privilege exists. Termes de la Ley. A private easement is a privilege, service, or convenience which one neighbor has of another, by prescription, grant, or necessary implication, and without profit; as a way over his land, a gate-way, water-course, and the like. Kitch. 105; 3 Cruise, Dig. 484. And see Harrison v. Boring, 44 Tex. 267; Albright v. Cortright, 64 N. J. Law, 330, 45 Atl. 634, 48 L. R. A. 616, 81 Am. St. Rep. 504; Wynn v. Garland, 19 Ark. 23, 68 Am. Dec. 190; Wessels v. Colebank, 174 III. 618, 51 N. E. 639; Terminal Land Co. v. Muir, 136 Cal. 36, 68 Pac. 308; Stevenson v. Wallace, 27 Grat. (Va.) 87. The land against which the easement or privilege exists is calied the "servient" tenement, and the estate to which it is annexed the "dominant" tenement; and their owners are called respectively the "servient" and "dominant" owner. These terms are taken from the civil law. Synonyms. At the present day, the distinction between an "easement" and a "license" ia well settled and fully recognized, although it becomes difficult in some of the cases to discover a substantial difference between them. An easement, it has appeared, is a liberty, privilege, or advantage in land, without profit, and existing distinct from the ownership of the soil; and it has appeared, also, that a claim for an easement must be founded upon a deed or writing, or upon prescription, which supposes one. It is a permanent interest in another's land, with a right to enjoy it fully and without obstruction. A license, on the other hand, is a bare authority to do a certain act or series of acts upon another's land, without possessing any estate therein; and, it being founded in personal confidence, it is not assignable, and it is gone if the owner of the land who gives the license transfers his title to another, or if either party die. Cook v. Railroad Co., 40 Iowa, 456; Nunnelly v. Iron Co., 94 Tenn. 307, 29 S. W. 361, 28 L. R. A. 421; Baldwin v. Taylor, 166 Pa. 507, 31 Atl. 250; Clark . Glidden, 60 Vt. 702, 15 Atl. 358; Asher v. Johnson, 118 Ky. 702, 82 S. W. 300. Classification. Easements are classified as affirmative or negative; the former being those where the servient estate must permit somethin? to be done thereon, (as to pass over it, or to discharge water upon it;) the latter being those where the owner of the servient estate la prohibited from doing something otherwise lawful upon his estate, because it will affect the dominant estate, (as interrupting the light and air from the latter by building on the former.) 2 Washb. Reni Prop. 301. Equitable L. Assur. Soc. v. Brennan (Sup.) 24 N. Y. Supp. 788; Pierce v. Keator, 70 N. Y. 447, 26 Am. Rep. 612. They are also either continuous or discontinuous. An easement of the former kind is one that is self-perpetuating, independent of human intervention, as, the flow of a stream, or one which may be enjoyed without any act on the part of the person entitled thereto, such as a spout which discharges the water whenever it rains, a drain by which surface water is carried off, windows which admit light and air, and the like. Lampman v. Milks, 21 N. Y. 505; Bonelli v. Blakemore, 66 Miss. 136, 5 South. 228, 14 Am. St. Rep. 550 ; Providence Tool Co. v. Engine Co., 9 R. I. 57l. A continuous easement is sometimes termed an "apparent" easement, and defined as one depending on some artificial structure upon, or natural conformation of, the servient tenement, obvious and permanent, which constitutes the easement or Is the means of enjoying it. Fetters v. Humphreys, 18 N. J. Eq. 260 ; Larsen v. Peterson, 53 N. J. Eq 88, 30 Atl. 1094; Whalen v Land Co, 65 N. J. Law, 206, 47 Atl. 443. Discontinuous, non-continuous, or non-apparent easements are those the enjoyment of which can be had only by the interference of man, as, a right of way or a right to draw water. Outerbridge v. Phelps, 45 N. Y. Super. Ct. 570; Lampman v. Milks, 21 N. Y. 515. This distinction is derived from the French law. Easements are also classed as private or public, the former being an easement the enjoyment of which is restricted to one or a few individuals, while a public easement is one the right to the enjoyment of which is vested in the public generally or in an entire community; such as an easement of passage on the public streets and highways or of navigation on a stream. Kenneily v Jersey City, 57 N. J. Law, 293, 30 Atl. 531, 26 L. R. A. 281; Nicoll v. Telephone Co., 62 N J. Law, 733, 42 Atl 583, 72 Am. St. Rep. 666. They may also be either of necessity or of convenience. The former is the case where the easement is indispensable to the enjoyment of the dominant estate; the latter, where the easement increases the facility, comfort, or convenience of the enjoyment of the dominant estate, or of some right connected with it. Easements are again either appurtenant or in gross. An appurtenant easement is one which is attached to and passes with the dominant tenement as an appurtenance thereof; while an easement in gross is not appurtenant to any estate in land (or not belonging to any person by virtue of his ownership of an estate in land) but a mere personal interest in, or right to use, the land of another. Cadwalader v. Bailey, 17 R. I. 495, 23 Atl 20, 14 In R. A. 300; Pinkum v. Eau Claire, 81 Wis. 301, 51 N. W. 550; Stovall v. Coggins Granite Co., 116 Ga. 376, 42 S. E. 723

— Equitable easements. The special easements created by derivation of ownership of adjacent proprietors from a common source, with specific .intentions as to buildings for certain purposes, or with implied privileges in regard to certain uses, are sometimes so calied. U. S. v. Peachy (D. Ct) 36 Fed. 162

— Implied easements. An implied easement is an easement resting upon the principle that, where the owner of two or more adjacent lots sells a part thereof, he grants by implication to the grantee all those apparent and visible easements which are necessary for the reasonable use of the property granted, which at the time of the grant are used by the owner of the entirety for the benefit of the part granted. Farley v. Howard, 33 Misc. Rep. 57, 68 N. Y. Supp. 159

— Intermittent easement. One which is usable or used only at times, and not continuously. Eaton v. Railroad Co., 51 N. II. 504, i2 Am. Rep. 147.

— Quasi easement. An "easement," in the proper sense of the word, can only exist in respect of two adjoining pieces of land occupied by different persons, and can only impose a negative duty on the owner of the servient tenement. Hence an obligation on the owner of land to repair the fence between his and his neighbor's land is not a true easement, but is sometimes called a "quasi easement." Gale, Easem. 516; Sweet.

— Secondary easement. One which is appurtenant to the primary or actual easement; every easement includes such "secondary easements," that is, the right to do such things as are necessary for the full enjoyment of the easement itself. Toothe v. Bryce, 50 N. J. Eq. 589, 25 Atl. 182; North Fork Water Co. v. Edwards, 121 Cal. 662, 54 Pac. 69.

A privilege in land, without profit, existing distinct from an ownership of the soil.

^ A service or convenience which one neighbor has of another by charter or prescription, without profit.'* The right whicli one man has to use the land of another for a specific purpose.* A liberty, privilege, or advantage in land, without profit, distinct from an ownership in the soil.* Easements include all those privileges which the, public, or the owner of neighboring lands or tenements, has in the lands of another, and by which the " servient owner," upon whom the burden of the privilege is imposed, is obliged to suffer, or not to do something, on his own land, for the advantage of the public, or for the *' dominant owner " to whom the privilege belongs.^ The essential qualities of easements are: they are incorporeal; they are imposed upon corporeal property; they confer no right to participation in profits arising from such property; there must be two distinct tenements, the dominant, to which the right belongs, and the servient, upon which the obligation rests.® Easements restrict the enjoyment of natural rights in land, light, air, and water. Attaching to land as incidents or appurtenances, are, among others: the rights of pasture, of way, of taking water, wood, minerals or other product of the soil, of receiving air, light, or heat, of receiving or discharging water, of support to buildings, of carrying on an offensive trade. An easement is not a tenancy.' Affirmative easement. Such right in another's land as authorizes acts actually 1 People V. Commissioners, 76 N. T. 74 (1879). See 34

A right, vfithout a profit, enjoyed by an owner of land over land held by another; not an estate or interest in the land itself.

[L. Lat. aisiamentum, aysiamentum, from Fr. aisS, a convenience.] A liberty, privilege or advantage in land, without profit, existing distmct from an ownership of the soil. Prentiss, C. J., 8 Vermont R. 279. 1 Crabb's Real Prop. 125, § 115. The right to use a public highway is a public easement. Swift, J., 1 Connecticut R. 103, 132. 2 Smith's Leading Cas. 98. (Am. ed. note.) A private easement is a privilege, service, or convenience, which one neighbor has of another, b^ prescription, grant or necessary implication, and without profit; as a way over his land, a gateway, water course, and the like. Kitch. 105. 3 Cruin Dig. 484. Otherwise defined as "a right of accommodation in another's land;" " a right which one man has to use the land of another for a special purpose." Burton's Real Prop. 361. pi. 1165. 3 Kent's Com. 434. A species of what the civil law terms servitudes {servitudines,) Inst, 2. 3. Olanv. lib. 12, c. 14. Bract, fol. 220 b, lib. 4, tr. 1, c. 37. See Aisiamentum, Servitude. See Gale dt Whatley on Easements, per tot.