EASEMENT, in law, signifies a right of accommodation, or limited right of use over land belonging to another. It is distin guished from profit a prendre since an easement confers merely a convenience to be exercised over the land of another without any participation in the profits of it. Thus a right of way is an easement, a right of common is a profit. An easement is distin guishable also from a licence, which, unless it is coupled with a grant, is personal to both grantor and grantee, and is neither bind ing on the licensor, nor, in general, assignable by the licensee; while both the benefit and the burden are annexed to land.
The essential features of an easement, in the strict sense of the term, are therefore these: (i.) It is an incorporeal right ; a right to the use and enjoyment of land—not to the land itself ; (ii.) it is imposed upon corporeal property; (iii.) it is a right without profit ; (iv.) it requires for its constitution two distinct tenements —the "dominant tenement" which enjoys the right, and the "servient tenement" which submits to it. This last characteristic excludes from the category of easements the so-called "easements in gross" (if such can subsist by English law), such as a right of way conferred by grant independently of the possession of any tenement by the grantee. The true easement is a right "ap pendant" or "appurtenant" to the dominant tenement.
Further classifications of easements must be noted. They are divided into (a) affirmative or positive, those which authorize the commission of an act by the dominant owner, e.g., rights of way, and negative, when the easement restricts the rights of the servient owner over his own property, e.g., prevents him from building on land so as to obstruct ancient lights (q.v.) ; (b) continuous, of which the enjoyment may be continual without the interference of man, e.g., access to light, and discontinuous, where there must be a fresh act on each occasion of the exercise of the right, e.g., a right of way; (c) apparent, where there are visible external signs of the exercise of the right, e.g., a right to dam up a watercourse, and non-apparent, where such signs are absent, e.g., a right to support of one house by another.
Easements are acquired by prescription at common law by proof of "immemorial user" by the dominant owner and those through whom he claims. A "lost grant" is presumed on proof that an easement has been enjoyed uninterruptedly for 20 years before action brought unless the contrary is shown. To avoid the diffi culties of proof of prescriptive right at common law, the Prescrip tion Act, 1832, established more definite periods of use. In the case of easements other than light, the periods of prescription are 20 years to establish a prima facie, and 4o years to establish an indefeasible title. (As to light see ANCIENT LIGHTS.) The enjoy ment of the easement by the dominant tenement must be open, i.e., not hidden, and of right, i.e., not by arrangement with the owner of the tenement affected by it (Kilgour v. Gaddes, 1904, I K.B. 457) Easements may be extinguished (i.) by express release—here an instrument under seal is necessary; (ii.) by "merger," i.e., where both tenements become the property of the same owner; (iii.) by abandonment through non-user. In the case of discontinuous easements, the shortest period of non-user may suffice if there is direct evidence of an intention to abandon.
A word may be added here as to the right to air. The owner of a dwelling-house may acquire a right to the passage of air through it by a defined channel. If it is claimed by prescription the proof required to establish it is the old common law proof, since the air easement is not one within the Prescription Act. It may also be acquired by grant, express or implied.
In Scots law the term "easement" is unknown. Both the name "servitude" and the main species of servitudes existing in Roman law (q.v.) have been adopted. The modes of their creation and extinction are similar to those of English law. The statutory period of prescription is 4o years (Scots Acts, 1617, c. 12), or 20 years in the case of enjoyment under any ex facie valid irredeem able title duly recorded in the appropriate register of sasines (Conveyancing [Scotland] Act, 1874). There are certain servi tudes special to Scots law, e.g., "thirlage," by which lands are "thirled" or bound to a particular mill, and the possessors obliged to grind their grain there, for payment of certain quantities of grain or meal as the customary price of grinding. Statutory pro vision has been made for the commutation of these duties (Thirlage Act, 1799), and they have now almost disappeared.
The French civil code and those of Belgium, Holland, Italy and Spain closely follow Roman law. French law is in force in Mauritius, and has been followed in Quebec (Civil Code, arts. 499 et seq.) and St. Lucia (Civil Code, arts. 449 et seq.) . In India the law is regulated, on English lines, by the Easements Act, 1882 (Act v. of 1882). The term "easements," however, in India includes profits a prendre. In the South African colonies the law of easements is based on the Roman Dutch law. In most of the other colonies the law of easements is similar to English law. In some, however, it has been provided by statute that rights to the access and use of light or water cannot be acquired by prescrip tion ; but municipal bye-laws must be examined in this relation.
In the United States the law of easements is founded upon, and substantially identical with, English law. The English doctrine, however, as to acquisition of light and air by prescription is not accepted in most of the States.
See Gale, Law of Easements (8th ed., 1908) ; Goddard, Law of Easements (6th ed., i9o4) ; Peacock, Easements in British India (Cal cutta, 1904) ; W. Burge, Commentaries on Colonial and Foreign Laws, vol. iv., pt. 2 (new ed., 4 vols., 1907-27) ; Jacques Vollenweider, Etude sur les droits distincts et permanents en droit civil suisse, Lausanne