chise might diminish somewhat the one already existing, it is competent for the legislature to create it, and authorize it to be enjoyed, provided the injury thereby resulting to the first can be compensated in damages, and provision therefor is properly made; though it will be remarked, that the case where this was applied was where the franchises were of an entirely different nature, the one being the flowing of lands for mill purposes, the other of maintaining a railroad. It was not the case of the erection of a bridge within the limits of restriction prescribed by the terms of the grant of a prior bridge franchise.1 12. But a much more difficult question has been raised, from time to time, as to how far a legislature is, by construction, restricted in granting new franchises, the exercise of which may impair or seriously injure those already existing. It has * been contended, and so some courts have held, that [*24] where a corporation, upon the faith of a grant of a franchise, had gone on and constructed a bridge, for instance, at great cost, with a view of accommodating a line of travel and obtaining reimbursement from the tolls thereby to be received, there was an implied obligation that the same legislative body should not, within the life of this charter, further authorize the erection of a new bridge so near the first as essentially to divert the travel therefrom, and materially impair the value of the franchise. Among the leading cases which have occurred where this question has been raised was that of the Charles River Bridge v. Warren Bridge, which was heard first before the Supreme Court of Massachusetts, and afterwards by the Supreme Court of the United States. From the principles established in this and similar cases cited below, the rule upon the subject seems to be, that though such charters are contracts which a legislature may not violate any more than an individual, yet the charter and the contract are to be construed strictly, and nothing is to be taken by im 860; Boston & Lowell R. R. Co. v. Salem & Lowell R. R. Co., 2 Gray, 1. Matter of Kerr, 42 Barb. 119; M'Roberts v. Washburne, 10 Minn. 28; New York, &c. R. R. v. Boston, &c. R. R., 36 Conn. 196, 198. 1 Boston Water Power Co. v. Boston & Worcester R. R. Co., 23 Pick. 360, plication. If, therefore, in the first grant there were no terms of restriction of power in granting other franchises, or expressly limiting the exercise of this power, the legislature may authorize the erection of a new bridge, though its effect would obviously be to destroy the value of the first, as was the case with the Charles River Bridge.1 13. The franchises of corporations authorized to receive tolls are liable to be taken and sold for the debts of the corporation; in which case the purchaser acquires the right of exercising the same for such period of time as will serve to pay the debt for which the same was sold. But this, being a matter of local statute regulation, will not be pursued in detail.2 1 Charles River Bridge Co. v. Warren Bridge Co., 7 Pick. 344; s. c. 11 Pet. 420; 2 Greenl. Cruise, Dig. 66, n.; Piscataqua Bridge Co. v. New Hampshire Bridge Co., 7 N. H. 59; Richmond R. R. Co. v. Louisa R. R. Co., 13 How. 71, 81; Redf Railw. 131; Fall v. County Sutter, 21 Cal. 252, 253; Fort Plain Bridge v. Smith, 30 N. Y. 61; Mohawk Bridge v. Utica R. R., 6 Paige, 554; Oswego Falls Bridge v. Fish, 1 Barb. Ch. 547; Bush v. Peru Bridge Co., 3 Ind. 21; Mills v. St. Clair Co., 8 How. 581; M'Roberts v. Washburne, 10 Minn. 28. 2 Mass. Gen. Stat. c. 68, §§ 25-34. [*25] 1. 2. *SECTION III. EASEMENTS. Easements defined. What included as easements. 3. Easements distinguished from profits à prendre. 4. Easement implies the existence of two estates. 5. Affirmative and negative easements. 6. Mode of acquiring easements. 7. How gained by user. 8. How gained by express grant. 9-12. Easements passing by implication. 13. Effect of dividing the dominant estate. 13 a. 14. Easement of prospect. 15, 16. 16 a. 17, 18. 19. 20, 21. 22. 23. 24. 25. 26. Easements implied in grant of houses, &c. How far easements may be reserved by implication. User defines extent of implied grant. Of support of soil by adjacent land. User must be by acquiescence. It must be continuous. What must be the condition of the servient estate. 27. Of the requisite length of time of the user. 29. Effect of death or alienation upon acquiring easements. 30. Of ways, considered as easements. 81. Dominant estate to repair the way. 83. Cannot be surrendered, &c., by parol. 89. Of easement of prospect. 40. Of easements in water. 41. Easements to discharge water from mills. 42. Easements of aqueduct. 43. Of keeping watercourses in repair. 44. Of underground watercourses. 45. As to easements in natural and artificial streams. 46. Of easement of support of adjoining land. 47. Of support of adjoining houses. 54. Easements by custom and as an individual right. 55. Right and remedies where easements are obstructel. 56. 57-59. 60, 61. 62. Unity of the two estates extinguishes easements. 63. Of mining rights in California. 1. A MUCH more common as well as numerous class of incorporeal hereditaments is embraced under the designation of Easements. They answer to the predial servitudes of the civil law, and consist of 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 parcel to whose ownership the right is attached is called the dominant, while that in or over which the right is to be exercised is called the servient, estate. And as these rights are not personal, and do not change with the persons who may own the respective estates, it is very common, when treating of easements, to personify the estates as themselves enjoying them or being subject to them.1 2. Among the rights and privileges which are embraced under the name of Easements is that of way, or the right by the owner of one parcel of land to pass over the land of another; of water, or the right of drawing water from, through, or across the servient for the benefit of the dominant estate, or of discharging water from the dominant over or upon the servient estate, and the like; of light and air, or of having 1 Termes de la Ley, "Easement; 3 Kent, Com. 435; Gale & What. Ease. 1; Walk. Am. Law, 265; Tud. Lead. Cas. 107; Wolfe v. Frost, 4 Sandf. Ch. 72, 89; Hills v. Miller, 8 Paige, Ch. 254; Case of Private Road, 1 Ashm. 417; Boston Water Power Co. v. Boston & Worcester R. R. Co., 16 Pick. 522. Though sometimes used as convertible terms, easements are generally understood to be the benefits which one estate enjoys in or over another, while servitudes imply the burdens that are imposed upon an estate in favor of another; the dominant enjoying the easement, the servient sustaining the burden. Washburn Easements, 5 light or air come uninterruptedly to the dominant over or across the servient estate; and of support, of the soil or buildings of the dominant by the adjacent soil or buildings of the servient estate, and of party-walls. 3. These easements are strictly incorporeal hereditaments, though imposed upon corporeal property, and consist simply of a right which is in its nature intangible, and incapable of being a subject of livery. They are, therefore, to be [*26] distinguished from what was called in the early books a profit à prendre, which consists of a right to take a part of the soil or produce of land, such as sand, clay, grass, trees, and the like, in which there is a supposable value. Thus, as there is properly no property in water beyond its use, a man may have an easement to enter upon another's land and take water therefrom for the benefit of his own estate. But he may not, as an easement, have a right to go upon another's land to fish in these waters and take fish therefrom, because it is in the nature of a profit out of it.2 As an illustration of the distinction there is between the grant of land, which is a thing tangible and a subject of livery, and of an easement, which is otherwise, if A grants to B" a ditch," and it means the land occupied by flowing or stagnant water, it is a grant of the soil and freehold of the parcel thus limited and defined. But if, from the context, it means a privilege of conducting water within a certain space over his land for use elsewhere, it is a mere right or easement of B in A's land. So a grant of the "use and benefit" of a passage-way gives an easement and not the freehold of the soil. But the grant of a parcel of land to be used as a way is a grant of the fee of the land, and not of an easement only. 1 Orleans Nav. Co. v. Mayor, &c., 2 Martin, 228; Inst. Lib. 2, T. 2; Hewlins v. Shippam, 5 B. & C. 221. 2 Wolfe v. Frost, 4 Sandf. Ch. 72; Bailey v. Appleyard, 8 Nev. & P. 257 ; Manning v. Wasdale, 5 A. & E. 758; Tud. Lead. Cas. 107; Bland v. Lipscombe, 30 E. L. & Eq. 189; Race v. Ward, Id. 187, 192; Waters v. Lilley, 4 Pick. 145; Gateward's case, 6 Rep. 60; Boston Water Power Co. v. Boston & Worcester R. R. Co., 16 Pick. 512, 522, though the use of the easement may deprive the owner of the land of the means of using it, as by flowing water upon it for working a mill on the dominant estate. Reed v. Spicer, 27 Cal. 58. 4 Codman v. Evans, 1 Allen, 447. |