Page:The New International Encyclopædia 1st ed. v. 06.djvu/683

* EASEMENT. 595 EASEMENT. the easement proper is to be sharply distiu- guished: ( I ) from ri^'hts not aequired, but which llow directly Irom, and inhere in, the ownership of land, as the right to the uninlerruptod llow of water in a water course, the right to the support of land iu its natural state, etc, which ale properly denominated luiliiial riylils; (2) from rights which do not consist in mere use, but which e.Mend to the taking of something of value from another's land, as the right of pas- turing cattle thereon, the right to mine coal or other minerals therein, and the like, which are known as profits a inexdre, or, nmre brielly, as prolits; (3) from rights of use which attach to a person as an individual and not as a prop- ert}"owner, and which are commonly spoken of as easements in gross as distinguished from .casements appurtenant, but which are. strictly speaking, only licenses to use the land of an- other: and (l) from rights of use which per- tain to one as a member of the public, such as llie right to use a highway on another's land or to use a private stream for purposes of navi- gation, and which are sometimes improperly called public easements. See Xatur.l Law; Profit; and License. As thus limited and defined, the term ease- ment describes only such a right of use as is appurtenant to a specific parcel of land to whose value and enjoyment it contributes. The right is. in fact, conceived of as belonging to the land, rather than to the owner thereof for the time being, and as burdening the land over which it may be exercised, and not the person having the actual possession thereof. Accordingly, the estate to which the right attaches is teown as the dominant tenement, and the estate subject to the servitude as the servient tenement. It follows, also, that the easement is unaffected by any disposition which may be made of either estate. The servient estate is subject to it, into whosesoever hands it may come, and the right of use passes with the dominant tenement, « henever that is conve.ved. It was formerly considered that it was necessary to make some ref- erence to the incorporeal rights attaching to an estate, at the time of conveying it, in order that these might pass with it to the grantee, and hence the use of the phrase "with the appurte- nances' in modern deeds; but it has long been settled that these or any other apt words are wholly unnecessary to produce that effect. Easements are classified at common law as positive i or affirmat ire) and negativ-r. the for- mer having reference to such as involved the physical use of another's land by going upon it or otherwise, as a right of way or of drain- age; while the latter, as in the right to light or to the support of a party-wall, calls for no for some purposes, this distinction is superficial, and has no real significance, the duty of the owner of the servient tenement being in all cases purely negative — to refrain from so using his land as to interfere with the rights of the dominant tenement — and involving no obligation to repair or do any other affirmative ait. The infringement of an easement is commonly a nuisance, and may accordinglv beahated, either by act of the party injured or by appropriate legal proceedings. (See Xris.NrE.> If the infringe- ment do» not amount to a nuisance, it may he punished, like any other violation of a right of property, by an action of trespass, or, in some cases, of ejectment; and if the infringement be only threatened, or if the common-law remedy be inadeipiale to redress the injury committed, an injunction may be granted to restrain the acts complained of. (See Kqiitv; Ix.unctio.n ; Tort. J But an ea»emenl is a true property right, or right in rem, and is protected not only against the acts of the owner or possessor of the servient tenement, but against those of any i)erson whatsoever, the same remedies being available in the one case as in the other. Where a right in the nature of an easement exists which is not thus protected, such as might arise by contract between two adjoining landowners, this is a mere right in personam, a license, and not an easement or a property right at all. A contract, however formal, can never create a legal interest in land. Easements may arise in three ways, the second and third of which are, by a legal fiction, mere forms or variations of the first. These are: (1) grant, or deed; (2) prescription; and (3) implication. The deed of grant has from the earliest period of the common law been the pecu- liar and iijipropriatc instrument for the creation and transfer of an incorporeal interest in land, corporeal interests, such as freehold estates, being formerly conveyed only by the process known as livery of seisin, i.e. by an actual physi- cal transfer of possession. By prescription is meant open and uninterrupted use and enjoy- ment from time immemorial, which, in the view of tlie law, created a presumption of a grant of the right claimed at some remote period of time. Formerly this presumption could be shown to be unfounded and the claim thus defeated, but in the United States, and for most purposes in England the presumption of a lost grant, as it is termed, is a pure fiction, and is no longer requisite to establish an ease- ment by prescription. Easements by implica- tion are such as arise from a legal presumption of the intention of the parties at the time a parcel of land is conveyed. Perhaps the best illustration of such an easement is what is known as a 'way of necessity,' which exists where one buys premises which are shut off on all sides by intervening land from access to the highw'ay. Here the easement arises, not from the necessity of the ease, but from a reasonable presumption that the grantor of the land-locked parcel intended to give with it a right of way over his remaining land. Of these several ways of creating easements, the first is the most comprehensive. All ease- ments may arise by grant, and some only in that way. In the I'nited States it is generally con- sidered th;it negative easements, such as the easements of light, of lateral support, and the like, cannot exist by jirescriplion. though the contrary view is taken in England and in a few of our States. On the other hand, only a few classes of easements will arise by imjilica- tion — such, that is to say, as involve a 'continu- ous and apparent" user of the premises alTeeled, as an aqueduct or drain. There is much dif- ference of opinion as (o what easements are properly to be described as continuous and appa- rent, negative easements being included in some jurisdictions and excluded in others, and the decision being sometimes made to turn on the question whether a permanent structure, like a
 * r.cli physical encroachment. While convenient