THE LAW OF EASEMENTS AND SERVITUDES. CHAPTER I. OF THE NATURE, CHARACTER, AND MODE OF ACQUIRING EASEMENTS AND SERVITUDES. SECT. 1. Nature, Classification, and Qualities of Easements, &c. Incidents to acquiring Rights of Easements, &c. SECT. 2. SECT. 3. Of acquiring Easements by Grant. SECT. 4. Of acquiring Easements by User and Prescription. SECT. 5. Easements by Public Prescription and Dedication. 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. 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. 19. Of a Natural Servitude of Water and its Incidents. 20. How far a Right may be a "Natural Easement." 21. A Destination du Père de Famille defined. 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 Bayly, 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."1 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; Cowel, Interp. "Easement;" Mounsey v. Ismay, 3 H. & Colt. 492, 497. "All easements are things Bowen v. Team, 6 Rich. 298. 637: Une charge imposée 2 Rowbotham v. Wilson, 8 Ellis & B. 123. incorporeal, mere rights invisible and intangible." A servitude is thus defined by the Code Nap., § sur héritage pour l'usage et l'utilité d'un héritage appartenant à un autre pro - The essential qualities of easements are these: 1st, they are incorporeal; 2d, they are imposed on corporeal property, and not upon the owner thereof; 3d, they confer no right to a participation in the profits arising from such property; 4th, they are imposed for the benefit of corporeal property; and 5th, there must be two distinct tenements, the dominant, to which the right belongs, and the servient, upon which the obligation rests. But it is not necessary that the dominant and servient estates should be in contiguity with each other." A contract for a right to pass over the lands of another is an easement extending only to a temporary disturbance of the owner's possession. The grantee of such an easement is not the owner or occupant of the estate over which the way is used.3 3. These definitions, it will be perceived, exclude the right of taking profits in another's land, commonly called profits à prendre, although the court, in Rowbotham v. Wilson, embrace rights of common as expressly within the term easement, and although, as will appear hereafter, such rights were included in those of servitude under the civil law, with which easements are understood to be in most, if not all respects, identical. Mr. Burton speaks of them thus: "Rights of accommodation in another's land, as distinguished from those which are directly profitable, are properly called easements." 4 Nor does the last definition embrace the class of rights which one may have in another's land, like a right of way or of common, without its being exercised in connection with the occupancy of other lands, and therefore called a right in gross. Mr. Burton says, "Such a right (of way), if in gross, seems to be not properly a tenement.” 5 Servitus presupposes a relation existing between two pieces of land. Rights granted to the person only were not held to be servitudes. But, after all, it partakes so much priétaire." 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; Gütter. Brac. 98. 1 Wolfe v. Frost, 4 Sandf. Ch. 72; Tud. Lead. Cas. 107; Wagner v. Hanna, 38 Cal. 116. 2 Perrin v. Garfield, 37 Vt. 312. 3 Cook Co. v. C. B. & Q. R. R., 35 Ill. 464. * Burt. Real Prop., § 1165. • Ib. § 1166. Gütter. Brac., c. 15, p. 122. |