by turning into it soap-lees and wool refuse; but the water was still sufficiently pure for Wood & Co.'s works. In an action by the latter it was held that they had a right to have transmitted to them the natural stream, in its natural state, free from pollution; and that they were entitled to maintain the action for the damage in law, though there was no damage from the pollution in fact. (b)

3. The burthen of affording such lateral support to the next adjoining land, as will suffice to keep it in its position, when not weighted by the addition of anything superimposed, such as a building. Illustration. Mrs. Wyatt and Harrison were

owners of adjoining pieces of land, and the former built a house on, and close to, the edge of her own land. Afterwards Harrison dug away the soil on his own ground, in consequence of which the foundations of Mrs. Wyatt's house sank, and the house was greatly injured. In an action by Mrs. Wyatt, the Court held that Harrison's land was bound only to keep the plaintiff's land in its place; and that she had no right of support to the artificial weight of the house which she had built. (c)

4. The burthen on the owner of the subsoil of affording

such vertical support to the surface of the land, as will suffice to keep it in position when not weighted by the addition of anything superimposed, such as a building.

Illustration. Humphries was possessed of certain arable land, under which were certain coal mines,

(b) Wood v. Waud, 3 Ex. 748.

(c) Wyatt v. Harrison, 3 B. & Ad. 871.

N

leased by the Durham Coal Company of the Bishop of Durham, the freeholder of the mines. The coal company removed the coal without leaving sufficient support to the surface. In consequence of which Humphries' land sank. In an action by him against the coal company (sued in the name of their secretary) the Court held that they were liable; although they had not been guilty of any negligence in the way in which they had worked their mines. (a)

II. CONVENTIONAL SERVITUDES are those which are of greater extent than natural servitudes, and have come into existence by virtue of a contract, express, or implied, between the parties. They are

1. EASEMENTS.

(i) Rights to pollute the air.

(ii) Rights to have light unobstructed.

(iii) Rights of lateral and vertical support to buildings.
(iv) Rights of fouling water.

(v) Rights to divert, and use, and pen back water.
(vi) Private rights of way.

[NOTE.

A public RIGHT OF WAY is not an easement. It is a "dedication to the public" by the owner, of the occupation of the surface of the land for the purpose of passing and repassing. (b)

§ IT IS PROVED by evidence of an animus dedicandi in the owner of the soil, and no user for any particular length of time is required to establish it.]

(a) Humphries v. Brogden, 12 Q. B. 739.

(b) Rangeley v. The Midland Railway Company, L. R. 3 Ch. 311.

$ AN EASEMENT is a privilege without profit which the owner of land has a right to enjoy in respect of that land over the land of another.

§ It is essential that it should be necessary to, and accessorial to, the use and enjoyment of land, and is appurtenant thereto.

An easement cannot exist "in gross; " for there must be both a dominant and a servient tenement. A contract creating such a right, is a mere personal covenant, and is in other words "a license." (c) § An easement is transferable with the land to which it is accessorial.

§ A PROFIT

2. PROFITS A PRENDRE.

PRENDRE is the privilege of taking some part

of any natural product in the land of another.

(i) THOSE WHICH ARE ATTACHED, AND ACCESSORIAL TO, THE USE AND ENJOYMENT OF LAND.

[NOTE. Incidents—

1. There must be a dominant tenement to which they are attached, and for the benefit of which they exist. (c)

2. When assigned along with the dominant tenement, they are still binding on the servient tenement. (c)]

(a) A right of common appendent to land. This is the right of the freeholders of a manor to depasture on the lord's waste, such horses, oxen, kine, and sheep, as they require for ploughing, and manuring those of their lands which have been in tillage from time immemorial, or have been originally in tillage, and subsequently laid down in grass. (d)

(c) Ackroyd v. Smith, 10 C. B. 164.
(d) Bennett v. Reeve, Willes, 231.

[The right is presumed to exist at common law, because in early times nearly all farms were in tillage, and but few in pasture, so that when the crops were in the ground, there would be no place for pasture of the beasts necessarily used in the cultivation of the farm, unless they were turned out on the lord's waste. (a)

(B.) A right of common appurtenant to land. This is a right founded on grant to go upon the land of another, and take some natural product there... from.

1. Common of pasture the right of one to depasture on the soil of another, either an agreed number of animals, or so many as can be supported in the winter by the produce of his own land. (b)

2. Common of estovers; [estouffer, to furnish.] The right of one to take for the use of his tenement, from the woods, or waste lands, of another a portion of his timber, or underwood.

(i) House bote, for the repair of the house, and for fuel.

(ii) Plough bote, for the repair of instruments of husbandry.

(iii) Hedge, or hay, bote, for the repair of fences.

3. Common of turbary. The right of one to take for fuel in his house, peat or turf from the wastes of another.

4. Common of piscary. The right to take, and carry away, fish from the waters of another.

(a) Bennett v. Reeve, Willes, 231, and Co. Litt. 122a. (b) Co. Litt. 122a.

5. Common of digging. The right to go upon

land of another, and dig for, and remove,

sand, gravel, clay, minerals, &c., &c.

(ii) PROFITS A PRENDRE IN GROSS. That is, personal privi

leges of coming upon, and taking a profit out of, the land of another.

[NOTE 1. They are created.

1. By grant, or reservation.

2. By severance of an appurtenant right to take a certain fixed profit, from the land with which it is held.]

[NOTE 2. Incidents.

1. The right is not accessorial to the use and enjoyment of any dominant tenement.

2. If assigned, does not bind the servient tenement. (Exception. By the custom of certain manors in

the North of England, the customary tenants have rights of sole and separate pasturage. called " cattlegates," and "cowgrasses," which are assignable though held in gross.)

3. Cannot be claimed under the Prescription Act, (See post p. 189.)]

(a.) Common of pasture.
(B.) Common of estovers.

(Y) Common of turbary.

[NOTE. As a rule rights of estovers and turbary are only appurtenant to some house. But where the right granted is to take a fixed and limited quantity, it may be severed, and becomes a right

in gross.

(8.) The right of sporting and fishing ;

(E.) The right of digging and removing sand, gravel,

clay, minerals, &c., &c.