THE LAW OF EASEMENTS AND SERVITUDES. CHAPTER I. OF THE NATURE, CHARACTER, AND MODE OF ACQUIRING EASEMENTS AND SERVITUDES. SECT. 1. SECT. 2. Nature, Classification, and Qualities of Easements, &c. SECT. 3. Of acquiring Easements by Grant. SECT. 4. Of acquiring Easements by User and Prescription. SECTION I. NATURE, CLASSIFICATION, AND QUALITIES OF EASEMENTS, ETC. 1. Introductory. 2. Easements and Servitudes defined. 3. A Profit à prendre, - how far an Easement. 4. Servitudes under the Civil Law defined. 5. Easements distinguished from Licenses. 6. Custom distinguished from an Easement. 7. When Profit à prendre an Easement, and when an Estate. 8. In what sense Courts use Easements and Servitudes. 9. Easements distinct from General Ownership of Land. 10. Two Estates implied by Easement, dominant and servient. 11. How far Easements may be created in gross. 12. When an Easement in gross is virtually an Estate. 12a. Right to Water, the Subject of Grant in gross. 126. Easement of Water in gross, and how measured. 13. An Easement implies neither General Property nor Seisin of Land. 14. Que Estate defined. 15. Distinction between a Right to the Soil and to take Soil. 16. Classification of Servitudes under the Civil Law, &c. 17. Of Continuous and Discontinuous Easements at Common Law. 20. How far a Right may be a "Natural Easement." 22. The Servitude non officiendi luminibus, &c., applied. 1. FROM the various modes of use and enjoyment to which lands may be subjected, there results an idea of property in these distinct from that of actual possession, with which the feudal doctrine of real property is chiefly associated. Almost every shade of interest or right of control over corporeal hereditaments may exist, from the absolute dominion of the allodial proprietor to the briefest and most qualified use which may be made of them, by mere license and indulgence, which necessarily leads to a classification of rights, in treating of Real Property as a general system. It is of one only of these classes that this work proposes to treat, and, although somewhat comprehensive in its character, it is embraced under the generic term of Easements or Servitudes. 2. Various forms of definition have been applied in describing this class of interests in real property, which are more or less comprehensive, as the court or writer was contemplating the subject as an entire system, or in its more limited and restricted sense. Thus the definition adopted by Bayley, J., from "Termes de la Ley," which he calls "a book of great antiquity and accuracy,' is "a privilege that one neighbor hath of another by charter or prescription, without profit ;" and it is illustrated "as a way or sink through his land, or such like." And, in another case, the court, in giving illustrations of what are easements, speak of "rights of way, rights to water, right to pollute water, and rights of common," as being "well defined as easements, to be exercised by one person over the land of another," and add: "The right acquired by time to send noxious vapors over another's land is another instance." 2 1 Hewlins v. Shippam, 5 Barnew. & C. 221; Cowell, Interp. Mounsey v. Ismay, 3 H. & Colt. 492, 497. "Easement;' 2 Rowbotham v. Wilson, 8 Ellis & B. 123. "All easements are things incorporeal, mere rights invisible and intangible." Bowen v. Team, 6 Rich. 298. A servitude is thus defined by the Code Nap., § 637: "Une charge imposée sur héritage pour l'usage et l'utilité d'un héritage appartenant à un autre propriétaire." The civil law recognized a servitude which was due from one person to another, which was not recognized by the laws of France or England. Inst. L. 1, tit. 3, § 2; 1 Lepage Desgodets, 4; Güter. Brac. 98. |