So a recovery in ejectment by one claiming the servient estate in an action against the owner of the dominant estate, and a writ of possession in his favor executed by delivering him the possession of the estate sued for, does not affect an existing easement over the servient estate in favor of the dominant one.1 It has, accordingly, been held that the owner of land subject to the right of way may convey it just as if no such right existed. Nor does such conveyance affect the right of the owner of the easement, if the purchaser have notice of its existence. And if the owner of the way shut it up and deny the owner of the land access to the same, the latter may have ejectment against him to regain the land covered by the way. But the judgment recovered in such action does not affect the right of the defendant to his easement of way.2 And where the owner of a tract of land conveyed to another, by indenture, so many rods of land in width from one monument to another, "for a private road," and the grantee, on his part, covenanted for himself and his heirs that the grantor might have "free permit to travel the said road," it was held to be an easement in the grantor out of the grantee's freehold, and that the soil and freehold of the parcel granted was in the grantee.3

10. It is hardly necessary, after the above definitions, to add, that the existence of two distinct and separate estates or tenements is implied in the existence of an easement; the one in favor or for the benefit of which it exists, is called dominant, and the other, over or upon which it is exercised, is called servient; and, as will be seen hereafter, if at any time these estates are united under one ownership and possession, the easement is at once. extinguished.4

11. A man may have a way, in gross, over another's land, but it must, from its nature, be a personal right, not assignable nor inheritable; nor can it be made so by any terms in the grant, any more than a collateral and independent covenant can be made to

1 [Blake v. Ham, 53 Me. 430;] Camden, &c. R. R. v. Stewart, 3 C. E. Green, 493.

2 Gordon v. Sizer, 39 Miss. 806, 820; San Francisco v. Calderwood, 31 Cal. 589; Wood v. Truckee T. Co., 24 Cal. 487; Ashley v. Landers, 9 Allen, 252. 8 Kilmer v. Wilson, 49 Barb. 86.

4 Tud. Lead. Cas. 108; Mabie v. Matteson, 17 Wis. 1; 1 Desgodets, ch. 2, art. 1; Mounsey v. Ismay, 3 H. & Colt. 497.

run with land.1 Where one granted an estate, and, in his deed, reserved a right of way across it to a certain point, but made no mention of or reference to any estate to which it was to be appurtenant or with which used, it was held to be a way, in gross, and not the subject of grant.2 A right in gross is not assignable.3

And if one has a right of way appendant or appurtenant to an estate, he cannot grant it separate and distinct from the land to which it belongs.

[* 9] * So where there was a grant of a right of way for all purposes, though it might authorize the grantee to use the way for purposes not connected with the use of the land granted therewith, yet if land was in fact granted therewith, so far as the use exceeded the purposes which were properly connected with the enjoyment of the land, it would be a personal right, and not assignable. When, therefore, the grantee conveyed the dominant estate "with all ways," &c., it did not convey any right of way as being appurtenant, under that grant, except such as was connected with the use and enjoyment of the land to which it was annexed. "It is not," say the court, "in the power of a vendor to create any rights, not connected with the use and enjoyment of the land, and annex them to it; nor can the owner of land render it subject to a new species of burden, so as to bind it in the hands of an assignee." 4

The language of the court in White v. Crawford might seem to conflict with what is said above: "As to ways in gross, that they may be granted or may accrue in various forms to one and his heirs and assigns, there can be no doubt. There is a strong example of such a grant in the case of Senhouse v. Christian,

1 [Boatman v. Lasley, 23 Ohio St. 614; Louisville & N. R. R. Co. v. Koelle, 104 Ill. 455.]

2 Wagner v. Hanna, 38 Cal. 111. [Where the owner of a piece of land granted to the owner of the next adjoining land a privilege at all times of passing and repassing over the land of the grantor to the land of the grantee, it was held that the grant was of an easement, not a personal privilege. Randall v. Chase, 133 Mass. 210.]

8 Tinicum Fishing Co. v. Carter, 61 Penn. St. 38; Weekly v. Wildman, Ld. Raym. 407.

Ackroyd v. Smith, 10 C. B. 164, 167, 188; Garrison v. Rudd, 19 Ill. 558; Woolr. Ways, 16; post, sect. 2, pl. 16; Tinicum Fishing Co. v. Carter, 61 Penn. St. 38.

5 White v. Crawford, 10 Mass. 188.

• Senhouse v. Christian, 1 T. R. 560.

upon which the defendants justified as heirs of the original grantee."

12. But the language of Walworth, Ch., in Post v. Pearsall,1 would seem to furnish a clew by which these cases may be reconciled with the above doctrine of Ackroyd v. Smith. The distinction seems to be this: If the easement consists in a right of profit à prendre, such as taking soil, gravel, minerals, and the like, from another's land, it is so far of the character of an estate or interest in the land itself, * that, if granted to one in gross, [* 10] it is treated as an estate, and may, therefore, be one for life or inheritance.2 But if it is an easement proper, such as a right of way and the like, and is granted in gross, it is a mere personal interest, and not inheritable. The case of Senhouse v. Christian was one where there was a grant of a way, and the question was, chiefly, as to the mode and extent of using it, and the point of its being inheritable does not seem to have arisen in the hearing. But the very terms of the grant implied an occupancy of the grantor's land to a certain extent, as, for instance, to "make and lay causeways," &c., and it was held to be the grant of a right to lay a framed wagon-way across the grantor's land.

12 a. In a recent case in Massachusetts, Foster, J., examines the question of a grant of a right to draw water from a spring by means of an aqueduct, and how far it was itself a subject of grant independent of the ownership of any estate to which it was appurtenant, in a full and elaborate opinion, in which it is clearly shown that such a right is the subject of grant and inheritance, although not accompanied by the grant of an estate in land. The

1 Post v. Pearsall, 22 Wend. 425; Perley v. Langley, 7 N. H. 233; post, sect. 4, pl. 20. See also 2 Blackst. Comm. 33, the case of Common; Welcome v. Upton, 6 Mees. & W. 536, case of Pasturage; Mounsey v. Ismay, sup.

2 The above positions are approved of by Sharswood, J., in Tinicum Fishing Co. v. Carter, 61 Penn. St. 21, 39. [A contract giving to one party a right to dig ores or minerals on another's land amounts to only a license, Silsby v. Trotter, 29 N. J. Eq. 228; even though the right so granted be exclusive, East Jersey Iron Co. v. Wright, 32 N. J. Eq. 248. In Pennsylvania, various estates of freehold or for years exist in the minerals themselves independently of the surface land under which they lie. Thus a leasehold interest in the clay on a piece of land may be established by an oral demise. Sheets v. Allen, 89 Penn. St. 47.]

8 Goodrich v. Burbank, 12 Allen, 459; Lord v. Comrs. Sidney, 12 Moore, P. C. 473-500; Bissell v. Grant, 35 Conn. 288; post, p. *313.

right was created by a reservation by the original owner of the estate upon which the spring was situated when granting the same, the reservation being to the grantor, his heirs and assigns, without any reference to any estate with which it was to be used; and the injury complained of was cutting the aqueduct by the owner of the soil. He cites, with approbation, the language of Curtis, J.:1 "If I have a spring, I may sell the right to take water from it by pipes to one who does not own the land across which the pipes are to be carried, and I may restrict the use to a particular house or not, as I please." "Incorporeal hereditaments may be inseparably annexed to a particular messuage or tract of land by the grant which creates them and makes them incapable of separate existence. But they may also be granted in gross, and afterwards, for purposes of enjoyment, be annexed to a messuage or land without the right, or a conveyance of the right without the land."

Although, in the cases above cited from both the New York and Massachusetts courts, there is a distinction made between the grant of water and of a profit à prendre, where water is, as it may be, a subject of sale in gross as a thing of value, it does not seem to be violating any principle of law to regard it as a species of profit à prendre, and therefore a subject of separate grant. Thus, in Chatfield v. Wilson, the court, speaking of water in the earth or percolating under its surface, say: "Such water is to be regarded as part of the land itself, to be enjoyed absolutely by the proprietor within whose territory it is."2 And in giving judgment in Acton v. Blundell, Tindal, C. J., remarks: "It (the case) falls within that principle which gives to the owner of the soil all that lies beneath his surface; the land immediately below is his property, whether it is solid rock or porous ground or venous earth, or part soil, part water. The person who owns the surface may dig therein and apply all that is there found to his own purposes, at

1 Lonsdale Co. v. Moies, 21 Law Rep. 664. See De Witt v. Harvey, 4 Gray, 489; Buffum v. Harris, 5 R. I. 243; Borst v. Empie, 1 Seld. 40. [See also ante, p. *7.] See also Poull v. Moakley, 33 Wis. 482, that an easement of a canal is assignable, though not appurtenant to any estate. Cf. Amidon v. Harris, 113 Mass. 59. A grant of a right to take water from all the springs in grantor's land, by aqueduct, gives grantee a right to take all the water of such springs. Stevenson v. Wiggin, 56 N. H. 308.

2 Chatfield v. Wilson, 28 Vt. 49.

his free will and pleasure."1 [ED. And in Hall v. Ionia, 38 Mich. 493, the court say: 66 The value of water as a distinct inheritance has been recognized in all periods, and its ownership is well established as not dependent upon lands to which it may be appurtenant, but as having a separate and distinct importance."]

And though it might be difficult to raise a prescriptive right of inheritance in the privilege of an aqueduct by a personal enjoyment, independent of its user in connection with some estate, and although a right to the enjoyment of water from a well or spring or river may be gained by custom, since no part of the soil or freehold, proper, is thus carried away any faster than it is ordinarily supplied from natural sources, yet, after all, it is an interest in land; and as the judge in Goodrich v. Burbank very properly and forcibly remarks, "We are unable to distinguish between the right to take water by a canal from a pond for the purposes of power and the right to take it from a spring in a pipe for domestic purposes." 2

If the grant of a right to take water in or from the grantor's estate can be regarded as "taking a profit in the soil," the cases seem clear that it may be to one and his heirs, independent of the ownership of any estate to which the right is to be appurtenant. Thus a right "to search and get " minerals, or to hunt in a man's park and carry away the deer, are subjects of grant, and may pass to assigns.

And the court in Hill v. Lord say, "that the right to water in wells or cisterns would be an interest in the land or a profit à prendre." And though, if the action were against a stranger for taking water from a spring of running water, the distinction might be a valid one between water in a stream and water in a well or cistern, it would not seem to lie in the mouth of the grantor to justify cutting off the supply which is enjoyed by means of a pipe laid through his land from a spring that rises within the same, the right to take and enjoy which, by maintaining such pipe, he or those under whom he claims title had conveyed by deed.

1 Acton v. Blundell, 12 M. & Wels. 354. See Buffum v. Harris, 5 R. I. 253. 2 See post, pp. 79, *80; Hurd v. Curtis, 7 Met. 114.

3 Muskett v. Hill, 5 Bing. N. C. 694.

• Thomas v. Lovell, Vaughan, 351; Bailey v. Stephens, 12 C. B. N. s. 108. Hill v. Lord, 48 Me. 100.