tinuous are those the enjoyment* of which can be had only [*14] by the interference of man, as rights of way, or a right to draw water." 1 It may be further added, that in affirmative easements the servient tenement must permit some act to be done thereon by the owner of the dominant estate, such as passing over it as a way, discharging water upon it from a channel or spout or eaves of his house. In negative easements, the owner of the servient estate is prohibited from doing something upon his own land which he otherwise might do, such as not building upon the same, when by so doing he obstructs the light and air from reaching the dominant estate, or not digging in his soil so as to weaken the foundations of the house standing on the dominant estate, and the like.2 18. An instance of a negative easement or servitude is found in Pitkin v. Long Island R. R. Company, in the obligation which the respondents entered into with a land-owner, to stop their cars at a particular place adjoining his property. The court held it, in substance, an easement or servitude, binding upon the property of the company, and an interest in their land in favor of the landowner. The land proprietor in such case had a negative easement in the property of the railroad company, whereby he might restrict them, as owners of a servient tenement, in the exercise of general and natural rights of property, so as to compel them to use it in a particular way, by keeping certain erections thereon, and stopping with their trains of cars at a particular place for his use and benefit as the owner of the adjacent land, which thus became the dominant tenement. It, was, therefore, held to be an incorporeal hereditament, the right or title to which could only be acquired by a grant or deed under seal, or by prescription.3 19. The instance given in a reported case, illustrating the * distinction between natural, legal, and conventional [*15] easements, in respect to their origin, is that of the natural 1 Lampman v. Milks, 21 N. Y. 505; Durel v. Boisblanc, 1 La. An. 407; Pheysey v. Vicary, 16 Mees. & W. 484; Polden v. Bastard, 4 B. & S. 258; Suffield v. Brown, 10 Jur. N. S. 111; Kerr v. Kerr, 14 Louis, 177. Tud. Lead. Cas. 107. 'Pitkin v. Long Island R. R. Co., 2 Barb. Ch. 221, 231. See also Day v. New York Central R. R. Co., 31 Barb. 548; Greene v. Creighton, 7 R. I. 1; post, pp. 63, * 508. * servitude to which a lower field is subject, to receive the surface water which flows on to a lower level from a higher one.1 Though this is treated of more at length in a later stage of the work, it may be remarked that such a servitude is only regarded as a natural one, in respect to the water which is naturally upon the higher field, and not as to such as is created by the industry of man. While the owner below may not do any thing to prevent the water naturally thereon from flowing from the upper field upon his own, the upper one has no right to do any thing upon his land to increase the burden upon the field below, beyond what may arise from a proper cultivation of the same for agricultural purposes. And even in so doing he may not dig ditches to discharge water, that naturally stands stagnant upon his own land, on to that of a lower proprietor.2 Although the foregoing statement of the servitude of a lower field to receive the surface flow of water from a higher one, is in accordance with the Roman, Scotch, and French laws, and has, at times, been adopted in some of the States, it will be found, when the subject is more fully considered hereafter, that in Massachusetts and other of the States it is confined to waters flowing in formed and defined channels, constituting technical "watercourses," while, as to all other water, the owner of the lower field may do whatever is necessary to improve the same by culture or building, although by so doing he prevents the surface water from the upper field flowing on to the same, unless he thereby causes it to flow in unusual quantities at particular points upon the adjacent land of another, by turning it off from his own.3 Laumier v. Francis, 23 Mo. 181. See Ersk. Inst., fol. ed. 352; Orleans Navigation Co. v. Mayor of New Orleans, 2 Mart. 214; 2 Fournel, Traité du Voisinage, 400. The French law reckons five natural servitudes, viz.: 1. The flowing of water from higher to lower land. 2. The right to a spring or fountain of water on the part of the owner in whose land it rises. 3. The right of a land-owner to a watercourse flowing through or forming a boundary of his land. 4. The fixing and maintaining boundaries between lands of adjacent owners; and 5. Building and maintaining fences for separating the lands of different owners. 1 Lapage Desgodets, 15. Martin v. Jett, 12 La. 501; La. Civ. Code, Art. 656; Sowers v. Shiff, 15 La. An. 301; Duranton, Cours de Droit Français, 159; Delahoussaye v. Judice, 13 La. An. 587; Orleans Navigation Co. v. Mayor of New Orleans, 3 Mart. 214; post, chap. 3, sect. 1, pl. 19; Pardessus Servitudes, p. 130, § 92; Code Nap. § 640. See post, * 355. 20. The term "natural easements," as applicable, especially, to the case of flowing water, is often made use of by courts of common law, and is not likely to mislead the reader, inasmuch as the context usually shows in what sense the term is employed. But as it will appear hereafter that an easement, when technically considered, is an interest which one man has in another's estate by grant, or its equivalent, prescription, it seems, at first thought, to be inconsistent to characterize what belongs to an estate as inseparably incident thereto, and forming a part and parcel thereof, by the name of easement or servitude. It may be in many and perhaps most respects like an easement, and may be treated of accordingly, and yet will hardly come within the requisites of what constitutes an easement at common law. And Erle, J., in Stokoe v. Singers, accordingly says: "The right to the [* 16] natural flow of water is not an easement, but a natural right.” 1 21. By the French law, there may be such an arrangement of the parts of two estates belonging to the same person, that, for fancy or convenience, the use of the one is made available to the enjoyment of the other. Thus, for instance, the one may enjoy the advantage of a look-out or prospect across the other, and for this purpose windows may have been opened in the latter; or doors may have been opened through the walls separating the estates, by which communication may be had with the street; or water may be conducted by an aqueduct from a pond or a fountain which belongs to the owner of one estate into a meadow which he may wish to water. And these may be mutual, each estate having for this purpose an advantage in the other, reciprocally, or the arrangement may be such that only one of the two estates enjoys a benefit from the other. The arranging and adapting the two estates in this way to each other is called Destination du père de famille. But this does not extend to discontinuous easements like rights of way.2 So long as both estates belong to the same person, though the uses thus made of one estate for the benefit of the other may, in some sense, be a service, it cannot be a servitude in the eye of the law, for nemini res sua servit jure servitutis. But if the owner 2 1 Stokoe v. Singers, 8 Ellis & B. 36; 2 Fournel, Traité du Voisinage, 400. * Cleris v. Tieman, 15 La. An. 316; Fisk v. Huber, 7 La. An. 323. 3 Cary v. Daniels, 8 Met. 466; Mabie v. Matteson, 17 Wis. 10. convey one of these estates to one, and another to another, or they come to different heirs by his death, this service, so far as it is continuous and apparent in its character, becomes a servitude in favor of the one over and upon the other estate. And among these may be mentioned the servitude of light and air, of supplying water, of drain, and the like. * Though artificial in their creation, they have some of the qualities of natural easements, as they pass with the separate estates in the manner of natural easements, without being mentioned in the deed. That what had been a simple use or service, while the estates belonged to the same proprietor, is by the law [*17] changed into a servitude at the moment of their separation, is founded upon the presumption which the law raises of an agreement by both parties to leave things in the same state into which they have been put, if there is no stipulation for changing it. The law on this subject, which will be found to be very analogous to that which prevails in England and this country upon the division of heritages, where one part has had the use and enjoyment of the other,' is declared in the Code, though it was borrowed from the early coutumes of several of the provinces of France. Articles 692 and 694 of the Code are the text upon which several commentators have treated, when considering this subject, among whom are Pardessus, Toullier, and Merlin. The language of Art. 692 is: "An appointment by the father of a family has the effect of writing in regard of continual and apparent servitudes." Art. 694: "If the owner of two heritages, between which there exists an apparent mark of servitude, dispose of one of the two heritages without the contract containing any agreement relative to the servitude, it continues to exist actively or passively in favor of the property aliened, or upon the property aliened." 2 Though the subject will be resumed in another part of the work, it may be well to remark here that this doctrine of the Post, sect. 3, pl. 26. 2 Code Nap., Barrett's transl., Art. 692, 694; Lalaure, Traité des Servitudes Réelles, liv. 3, ch. 9; Pardessus, Traité des Servitudes, 430, ed. 1829; 3 Toullier, Droit Civil Français, 447 et seq.; Merlin, Répertoire de Jurisprudence, tit. Servitude, §§ 17-19; 3 Burge, Col. & F. Law, 439; 1 Fournel, Traité du Voisinage, § 110; La. Civ. Code, § 763; Lavillebeuvre v. Cosgrove, 13 La. An. 323; Seymour v. Lewis, 13 N. J. 443. French law has obtained a place in the English common law, rather by way of illustration and analogy, than as a governing principle. In one case the Lord Chancellor took occasion to say: "This comparison of the disposition of the owners of two tenements to the destination du père de famille is a mere fanciful analogy, from which rules of law ought not to be derived." 1 That servitude known to the civil law under the name of "Non officiendi luminibus vel prospectui," was practically acknowledged as one known to the common law, and as binding upon the owners of an estate, by the courts of New York, in a case where the owner of several house-lots lying together sold one of them, and at the same time covenanted with his vendee that the other land belonging to him in front of that sold should be kept open for public use.2 *SECTION II. [*18] INCIDENTS TO ACQUIRING RIGHTS OF EASEMENT, ETC. 1. Easements can only be acquired by Grant. 2. Licenses are revocable. 2a. Of revoking executed Licenses. 3. Modes of evidencing Grants of Easements. 4. How far Presumption of a lost Deed answers to Prescription. 5. Of creating Easements by Reservation. 6. Of mutual Grants and Reservations of Easements. 7. Of reserving an Easement out of Grantee's Land. 8. By what Form of Deed an Easement may be created. 1. BEFORE proceeding to examine the characteristics of the several kinds of easements known to the common law, and the rules applicable to these, it seems proper to consider certain general principles which are common to all, in order to save the necessity of repetition. And first, as to the mode of their acquisition. These, being interests in land, can only be acquired by grant, 1 Suffield v. Brown, 10 Jur. N. S. 111. D. 8, 2, 15; Hills v. Miller, 3 Paige, 254, 257; Barrow v. Richards, 8 Paige, 351; Ersk. Inst., fol. ed. 356. |