Page:The New International Encyclopædia 1st ed. v. 06.djvu/684

* EASEMENT. 596 EASEMENT. drain, was actually apparent and known to the parties at the time of the conveyance. Easements may be lost or destroyed, either by release, by merger, by abandonment, or, in some cases, by destruction of the premises to which they attach. Merger occurs where the dominant and the servient estates become vested in the same person. Here the easement will not revive upon the sul)sequent conveyance of either of the estates to another person. It is not true, as is often said, that an easement may be lost by mere non-user. But if the non-user be under such circumstances as to show an intention to abandon the easement, the easement may be lost. Mere misuse of an easement is as inoperative to destroj' it as non - user. Such a right must be exercised within narrow limits: nothing may be done by the dominant tenant whi<-h increases the burden ui)oii the servient tenement : neither may he make any material change in the manner of exercising it; but the remedy for an excessive iser of an ease- ment is an action of trespass and not the for- feiture of the right which has been abused. It is not, however, an unlawful or excessive user of an easement to enter upon the servient premises from time to time for the ])urpose of rei)air and of keeping the easement in good working order, nor for the purpose of abating a nuisance which interferes with its enjoyment. It is only where an easement is of an ephem- eral or temporary character that it is lost by any injury to the premises. The destruction of a road by Hood or earthquake does not aft'ect the right of way ^^•llich exists with reference to it, The person claiming the easement may, at his own cost, make whatever re])airs are neces- sary to restore the way to its former condition. So, if a house having an easement of liglil be destroyed by fire, the easement is not lost, but revives on the rebuilding of the house. But easements of lateral support, such as those which attach to party-walls, are manifestly in- tended only for the houses which are supported by such walls, and the complete destruction of the premises has the efTect of destroying the easements on both sides. Either party mar thereupon rebuild on his own land at his own pleasure and without reference to his neighbor. However, if the party-wall i> not completely destroyed, but is susceptible of repair or rwon- struction, it may be restored by the party desir- ing to avail himself of the easement, at liis own expense, and his right to the support of the wall continues as before. The narrow range of the class of rights under consideration, the restrictions which the law imposes upon their creation and exercise, have be<'n made clear by the foregoing explanation of their legal character and status. This jealous attitude of the law toward rights of this char- acter is due to the fact that they always consti- tute an interference with the free exercise of his natural rights by the owner of the servient tenement. The easy creation and the indefinite multiplication of such rights would produce grave inconvenience and would seriously hamper the free alienation of real property. Hence the common law has still further restricted them by arbitrarily limiting their mimber. It is a maxim of the law that no novel easements can be created. Landowners are limited to the kinds which have always been known, and which have previously been recognized by the courts as proper and convenient burdens" upon land. Those already refenx'd to — ways, lights, drains, watercourse, support to buildings — comprehend practically all, or nearly all, such rights as can be created. Attempts have been made to increase the number, but the courts have invariably re- fused to countenance such proposed aiUlitioiis to the list, as the right of access of wind to a wind- mill or a chimney, the right to an unobstructed view, etc. Such a right may, indeed, be con- ferred upon one nuin by another. but it remains a mere right in persona in, a contract right, and does not become a burden upon the land of the grantor or an appurtenance to the estate of the grantee. The only exception to this principle U that furnished by the case of the 'equitable easement,' wherel)v a restrictive covenant affect- ing the Use of hiiul — as an agreement not to bulM within a certain distance of the street line — is enforceable in equity — not only against the maker of the covenant and his heirs, but also against his assigns who take title with notice of the understanding. But even this exception, important though it be, is limited to a narrow range of cases, in which the covenant sought to l)e enforced is purely restrictive in character and imposes no active duty upon the owner of the jiremises atl'ected. .Analogous to easements in their effects, but differing fundamentally from them in character, are the rights which are loosely described as ■covenants running with the land.' It has already been stated that an easement cannot be created by covenant — which is only a contract under seal — but requires the ancient form of a grant. Interests, or estates, in real property, whether corporeal or incorporeal, are too im- portant to be subject to creation or transfer by any but the most solemn legal forms. Hence a covenant affecting the use of land, like any other covenant, creates only a right in pcrsnnnm, a right of acti(m on ccmtract. and not an interest in the pro[>erty itself. But if such right of action runs with the land, that is, if it binds any and everybody who becomes the owner of the land, and if. on the other hand, it is enforce- able, not only l)y the person to whom the promise is made. Viut by everybody who becomes entitled to the promisee's land, it is evident that we have the substance if not the form of an ease- ment. The method of enforcing the right is dif- ferent, by an action in covenant instead of tres- pass, but. the right, on the one hand, and the burden, on the other, are not otherwise distin- guishable from those resulting from an ease- ment. In a very limited class of cases, such rights, arising out of covenant, are recognized in our law. The essential conditions are: (ll that the covenant shall 'touch and concern' the land, that is. that it shall affect the use and con dition of the premises: and (2) that there shall be privity of estate, that is, some such relation as that of landlord and tenant, between the parties. In otiier words, both parties must in a legal sense be owTiers of the property affected. Thus, if a tenant covenants to make a certain class of repairs, or to cultivate the land in a certain way, the right to enforce such covenant will pass to the landlord's assignee, and the obli gation to perform it will be equally incumlient on the tenant's assignee as upon the original tenant who entered into the engagement. In a