CHAPTER XVI.

EASEMENTS AND PROFITS A PRENDRE.

1597. Incorporeal hereditaments.

1601-1643. Easements.

1602-1605. Requisites of an easement.

1603. It must be imposed on real property.

1604. It must be annexed to corporeal real property.

1605. Two estates necessary.

1606-1639. Kinds of easements.
1607-1614, b. Natural easements.
1608. Rain water.

1609. Springs.

1610-1614. Water courses.

1612. Rights and obligations of owner of superior estate. 1613. Rights and obligations of owner of inferior estate. 1614. Rights and obligations of riparian proprietors. 1614, a. Lateral support of land.

1614, b. Destination du pere de famille. 1615-1627. Easements by operation of law. 1615-1618. Party-walls.

1616. Party-wall how established.

1617. Rights arising from a party-wall.
1618. Obligations resulting from a party-wall.

1619-1623. Ancient lights.

1620. Right of ancient light, how gained.

1622. Interruption of ancient light.

1623. Remedy for interruption.

1624-1627. Drain, drip and support.

1625. Drain.

1626. Drip.

1627. Support.

1628-1639. Ways.

1629-1633. Public ways.

1630. How public ways are established.
1632. How public ways are to be used.
1633. Kinds of public ways.

1634-1636. Private ways.

1635. How private ways are established.
1636. How private ways are to be used.

1637-1639. Ways of necessity

1638. When a way of necessity may be acquired.

1639. Extent of such easement.

1640-1643. Extinction of easements.

1641. By acts of the party entitled.

1643. By operation of law.

1644-1661. Profits à prendre or common.

1645-1653. Common of pasture.

1646-1649. Common of pasture appendant.
1647. Assignment of common appendant.

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1648. Apportionment of common appendant.

1649. Suspension and extinguishment of common appendant.
1650. Common of pasture appurtenant.

1652. Common because of vicinage.

1653. Common in gross.

1654. Common of piscary.

1655. Common of turbary.

1656-1661. Common of estovers.

1657. Kinds of estovers.

1658. Right to estovers, how acquired.

1659. What things may be taken for estovers.
1660. The time of taking estovers.

1661. User of right of estovers.

1597. Incorporeal real property is a right issuing out of, or annexed to, a thing corporeal. It is so called because it has no corpus, and is not tangible nor visible. It is not the object of the senses, but exists only in idea and in contemplation of law. Although it is thus unsubstantial, it may produce something substantial and beneficial to the owner. Corporeal property, as has already been observed, is in the land itself; the incorporeal is merely the right to have some part only of the produce or benefit of the corporeal property, or to exercise a right, or have an easement, or privilege, or advantage over or out of it.

1598. An incorporeal hereditament may be granted to another in two ways in respect to the tenure of the right. It may be granted to be enjoyed in an individual or personal capacity; as, where a right of common or right of way is granted to A, or to A and his heirs, or to the inhabitants of a certain village, or to any other class of individuals. Or it may be granted to the owners or owner of a certain corporeal hereditament; as a right of way to the owners of Blackacre over Whiteacre, or a right of common to the freeholders of Camptown. In the former case it is said to be a right in gross; in the latter a right appendant or appurtenant, as the case may be.

1599. A marked difference exists in the transfer of corporeal and incorporeal property. The possession of corporeal property, as houses and lands, is capable of actual and visible delivery or transfer, and for this reason it is said to lie in livery, that is, delivery of seisin or possession. Incorporeal property, on the other hand, is incapable of actual possession, and passes by mere deed of grant, or such other conveyance as amounts to a grant, and it is, therefore, said to lie in grant.1

1600. According to Blackstone, there are in the English law ten kinds of incorporeal hereditaments-a number which our institutions have much abridged. Happily we have no advowsons, tythes, dignities, hereditary offices, nor corodies. Some others, which are not classed under this head by the old English lawyers, will here be considered as incorporeal inheritances. These will be considered under five different heads: easements, profits à prendre, rent, annuities, and franchises.

1601. The most numerous class of incorporeal hereditaments form what is called easements. An easement is a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with a general property in the owner. The existence of the

easement may materially injure or depreciate the pecuniary value of the estate

1

Coke, Litt. 9, 172; Comyn, Dig. Grant. An incorporeal hereditament will pass by other conveyances than mere grants, as by bargain and sale. Croke, Eliz. 166; covenants to stand seised, and by lease and release. See 2 Sharswood, Blackst. Comm. 317.

over which it exists, but must not be inconsistent with the ownership of such estate. No easement can exist when the two estates belong to the same person: nulli enim res sua servit jure servitutis.2

An easement is very similar to the servitude of the civil law; it is, however, not so extensive in its signification. A servitude comprehends, in addition to the easement of the common law, many rights which in the latter fall under the division of profits à prendre.3

There is also the consideration which is sometimes overlooked, yet which becomes in many cases of considerable importance, that in the civil law consideration is given more prominently to the burden (servitus) imposed upon the servient estate, while in the common law it is regarded rather in the nature of a right established or to be adjudicated upon, attached to the dominant estate. In matters relating to the acquisition and continuance of these rights, the distinction becomes of importance, and renders a reference to the civil law to ascertain the doctrine which should prevail at common law liable to mislead.

The estate which is entitled to the easement is called the dominant estate, and the estate which owes it is denominated the servient estate.

This subject naturally divides itself into the requisites of an easement, the kinds of easements, and the manner of extinguishing them.

1602. The principal requisites of easements are: that they be imposed upon corporeal real property; that they be for the benefit of corporeal real property; and that there be two distinct estates, the dominant and the servient.

1603. To constitute an easement it is necessary that the right should be one to use corporeal real estate. It must attach to the soil of the servient estate, either in the way of a positive exercise of right or a negative, in preventing the owner from making a use which will disturb the owner of the easement in his right. Any corporeal real property may in general be made subject to an easement. The obligation resting upon the owner of the servient estate applies to him in that character, and passes with the estate to the new owner, so that if any disturbance of the easement has taken place previous to the transfer, although such tortious act would give a right of action to the owner of the easement against such former proprieter, yet his successor will be responsible if he allows such disturbance to continue."

This obligation, in the absence of agreement, is simply one of non-interference with the right of the dominant estate.

5

1604. The right must be annexed to some corporeal real estate to come within the strict meaning of the term easement. When personal rights, which in their mode of enjoyment bear a strong resemblance to easements, are conferred by grant or otherwise acquired, independently of the possession of any tenement by the grantee, they give a right of action for the disturbance, but are not possessed of all the incidents of easements. Some of them, however, as rights of way, are so closely analogous thereto as to be more conveniently treated of in this connection than any other, and accordingly will be here considered.

Dig. 8, 2, 26; Grant v. Chase, 17 Mass. 443.

* Hammond, Nisi P. 172. Profits à prendre are those taken and enjoyed by the proprietor himself; profits à rendre are those which are received at the hands of and rendered by another. A profit à prendre consists in a right to take the soil or the produce of land or a part of it which has a supposable value, and in this respect differs from the easement, which is at most a right to use. So too, for illustration, there may be an easement consisting of a right to enter upon land and draw water, but not of a right to enter upon another's land to fish in waters and take fish therefrom. 2 Washburn, Real Prop. 26; Manning v. Wasdale, 5 Ad. & E. 758; Gateward's case, 6 Coke, 60; Waters v. Lilley, 4 Pick. Mass. 45. * Penruddock's case, 5 Coke, 101. Taylor v. Whitehead, 2 Dougl. 749. Pomfret v. Ricroft, 1 Saund. 322.

See Bullard v. Harrison, 4 Maule & S. 387;

1605. The dominant estate must belong to one person and the servient to another. There must be a right attached to the estate of one person over the land of another.

On the title to both being united in one individual or set of individuals, the easement becomes extinguished; it is immediately merged in the higher estate. But in this case the owner must have a valid title to the dominant estate in order to create an extinguishment by a unity of possession. And where the accommodation continues during the union, it may revive as an easement on the severance.8

As the rights are not personal and do not change with the ownership of the estates, it is very common to speak of the estates themselves as enjoying the right or owing the duty. The faculty of using an easement, considered alone, and separated from the dominant estate, cannot be sold nor hired nor given. He who has a just title to the dominant estate has alone the right of using the easement, without being able to confer his right to other possessors of another estate, or even to extend the right to other estates owned by himself." When the owner of the dominant estate sells a part of it to another, the purchaser will be entitled to use it as far as his estate extends, as well as the seller.10

1606. Easements arise in a variety of ways: from the relative situation of the dominant and servient lands; by force of law; or by the agreement of parties.

1607. The relative situation of one parcel of land to another may give rise to certain rights merely as a result from such situation. These rights may be properly termed natural easements, since they result from the natural relation which the several premises bear to each other. They are classified as easements of rain water, of springs, and of water courses.

1608. There is no easement of water which requires the owner of one parcel of land to receive the water which falls upon the surface of another parcel, and which does not regularly flow in a defined channel. In the absence of agreement the owner of one estate may raise the surface, or may put such erections thereon as he chooses, even though the effect may be to cause an accumulation of rain water, or water from springs, bogs, etc., upon his neighbor's land." In the same manner the owner of the superior estate may make such use of his estate as he may desire without reference to its effect upon the estate of his neighbor.12

1609. The owner of the land is entitled to all the advantages which arise from it. When a spring of water is found on his land he may use it, as he does any other property which is the produce of his estate, without regard to the convenience or advantage of his neighbors. This right is very different

Holmes v. Goring, 2 Bingh. 83; 9 J. B. Moore, 166; Grant v. Chase, 17 Mass. 443; Wolfe v. Frost, 4 Sandf. Ch. N. Y. 71, 89; Seymour v. Lewis, 13 N. J. 450. 'Thomas v. Thomas, 2 Crompt. M. & R. Exch. 41; Pearce v. McClenaghan, 5 Rich. So. C. 178; Binney v. Hull, 5 Pick. Mass. 503; Tyler v. Hammond, 11 id. 193.

Dunklee v. Wilton R. R. 24 N. H. 489; Grant v. Chase, 17 Mass. 443; Seibert v. Levan, 8 Penn. St. 383.

Kirkham v. Sharp, 1 Whart. Penn. 323; Road from Lazaretto, 1 Ashm. Penn. 417; Lewis v. Carstairs, 6 Whart. Penn. 193.

10 Watson v. Bioren, 1 Serg. & R. Penn. 227; Underwood v. Carney, 1 Cush. Mass. 285; Whitney v. Lee, 1 All. Mass. 198. See Washburn, Easements, 183; Henning v. Burnet, 8 Exch. 187; South Metropolitan, etc., v. Eden, 16 C. B. 42; Allan v. Gomme, 11 Ad. & E. 759.

11 Chasemore v. Richards, 2 Hurlst. & N. Exch. 168, 5 id. 982; Broadbent v. Ramsbottam, 11 Exch. 602; Wheatley v. Baugh, 25 Penn. St. 528; Cooke v. Hull, 3 Pick. Mass. 269; Parks v. Newburyport, 10 Gray, Mass. 28; Flagg v. Worcester, 13 id. 601; Dickinson v. Worcester, 7 All. Mass. 19; Gannon v. Hargadon, 10 id. 106.

12 Broadbent v. Ramsbottam, 11 Exch. 602.

from the right of the owner of an estate through which a water course flows.

This, however, is not the case where the overflow has established a defined and constant channel, as in that case the rule applicable to running streams applies. 13

The right to use and control subterranean water is determined upon the same principles as that to surface water. When the water percolates through the ground without forming well-defined channels, the owner of each estate may use the same, as by sinking wells or pits, or do any acts upon his estate, as draining, excavating for quarrying, without regard to its effect upon his neighbor's estate. 14 It has even been held that the owner of an estate may take measures expressly to prevent water from percolating from his land to his neighbor's; 15 and this decision, though questioned, has not been expressly denied.16

Where there is a defined channel underground which can be distinguished and ascertained, it is said that rights may be acquired by priority of use, as in natural channels above ground." It seems, however, that this does not apply to wells fed by springs except under very peculiar circumstances.18

An estate on which there is a spring may, however, be subject to an easement; that is, the owner of another may have a right to draw water there, or water his cattle. But this is not a natural easement; it is one which must arise from a grant or prescription.

1610. It will be well to observe a distinction which exists in easements of which running water is the subject. The right to receive a flow of water and to transmit it in its accustomed course may be called a natural easement. The right to interfere with an accustomed course, either by damming it and forcing it upon the land above, or transmitting it, altered in quality or quantity, to the inferior inheritance, may be called an artificial easement.

These natural easements appear in some degree to partake of the character of rights of property, and it has been asserted that, inasmuch as the flow cannot be claimed as water, but as land, the water is therefore identified with the realty.19 But it must be recollected that the easement does not consist in the right to the fluid, but in the current.20 It is the right to receive the current from the superior estate, and the obligation to transmit it to the inferior, which makes the natural easement.

1611. By water course is usually understood the flow or movement of water in rivers, creeks, and other streams, above ground. In the examination of the subject it will be proper to consider the rights of the owner of the superior

13 Dudden v. Guardians, etc., 1 Hurlst. & N. Exch. 627; Earl v. Dehart, 1 Beasl. Ch. N. J. 280; Wheatley v. Baugh, 25 Penn. St. 528; Kauffman v. Griesemer, 26 id. 407; Arnold v. Foot, 12 Wend. N. Y. 330; Laumier v. Francis 23 Mo. 181.

Actur v. Bluendell, 12 Mees. & W. Exch. 336; Chasemore v. Richards, 2 Hurlst. & N. Exch. 168, 5 id. 982; 7 Hou. L. Cas. 349; Dudden v. Guardians, 1 Hurlst. & N. Exch. 630; Smith v. Kendrick, 7 C. B. 515; Greenleaf v. Francis, 18 Pick. Mass. 117; New Albany R. R. v. Peterson, 14 Ind. 112; Roath v. Driscoll, 20 Conn. 533; Brown v. Illins, 25 id. 583; Ellis v. Duncan, 21 Barb. N. Y. 230; Wheatley v. Baugh, 25 Penn. St. 528. 15 Chatfield v. Wilson, 28 Vt. 49; 31 Vt. 358.

16 See Roath v. Driscoll, 20 Conn. 533.

"Dudden v. Guardians, 1 Hurlst. & N. Exch. 630; Dickinson v. Grand Junction Co. 7 Exch. 301; Smith v. Adams, 6 Paige Ch. N. Y. 435.

18 Actur v. Bluendell, 12 Mees. & W Exch. 336; Chasemore v. Richards, 2 Hurlst. & N. Exch. 168; 5 id. 982; Roath v. Driscoll, 20 Conn. 533; Greenleaf v. Francis, 18 Pick. Mass. 117; New Albany R. R. v. Peterson, 14 Ind. 112; Wheatley v. Baugh, 25 Penn. St. 528. See Smith v. Adams, 6 Paige Ch. N. Y. 435; Whetstone v. Bowser, 29 Penn. St. 59; Parker v. Boston and Maine R. R., 3 Cush. Mass. 107.

19 Angell, Water Courses, 57.

20 2 Washburn, Real Prop. 63.