EASEMENT, a legal term, denoting a privilege comprising a permanent public or per sonal right as legal owner of one parcel of land, to use, or forbid its use, for some special purpose, with regard to a parcel of land belong ing to another owner. This definition includes easements strictly so called, which are always appurtenant to land, easements and ease ments in gross or such as are attached to the person. In more general terms it is said that the right of making use of the land of others, whether it be that of the public or individuals, for a precise and definite purpose, not incon sistent with a general right of property in the owner, especially where it is for the public use, is in legal contemplation an easement or fran chise, and not a grant of the soil or general property. In the civil law the land against which the privilege exists is called the servient tenement; its proprietor the servient owner; he in whose favor it exists the dominant owner; his land the dominant tenement. And, as these rights are not personal and do not change with the persons who may own the respective estates, it is very common to personify the estates as themselves owning or enjoying the easements. Easements have these essential qualities. There must be two tenements owned by several pro prietors: the dominant, to which the privilege is attached; the servient, upon which it is im posed. Considered strictly, easements exist only in favor of, and are imposed only on, corporeal property. They confer no right to any profits arising from the servient tenement. They are incorporeal. At common law they may be tem porary; by the civil law the cause must be per petual. They impose no duty on the servient owner, except not to change his tenement to the prejudice or destruction of the privilege. Easements are of various kinds. They are as various as the exigencies of domestic conven ience or the purposes to which buildings or land may be applied. The following attach to land as incidents or appurtenances, to wit : The right of pasture on other land; of taking game on other land; of fishing in other waters; of taking wood, minerals or, other produce of the from other land; of receiving air, light, or heat from or over other land; of receiving or discharging water over, or having support to buildings from other land; of going on other lands to clear a mill stream, or repair its banks or draw water from a spring there, or to do some other act involving ownership; of carry ing on an offensive trade; of burying in a church or a particular vault, etc. Some of these
are affirmative or positive, that is, authorizing the commission of acts on the lands of another actually injurious to it, as a right of way — or negative, being only consequentially injurious, as forbidding the owner from building to the obstruction of light of the dominant tenement. Easements of every kind must originate in a grant or agreement, express or implied, of the owner of the servient tenement. By the com mon law, the evidence of their existence may be by proof of the agreement itself, or by pre scription, requiring actual and uninterrupted en joyment immemorially, or for upward of 20 years, to the extent of the casement claimed from which a grant is implied. Easements of the negative kind do not admit of possession and by the civil law they cannot be acquired by prescription and can only be proved by grant. Use is not essential, therefore, to their existence. Easements may be extinguished by release; by merger, when the dominant and servient tene ments are united under the same title and to the same person; by necessity, as by a license to the servient owner to do some act incom patible with its existence; by cessation of en joyment, when acquired by prescription — the non-user being evidence of a release where the abandonment has continued at least as long as the user from which the right arose. A shorter time will answer in some cases. Interference with a right of easement is an action of tres pass, or of case, where the offense is one of consequential damages. Redress may be gained through a court of equity for the infringe. meat of easement.
Consult Holland. 'The Elements of Juris prudence) (9th ed., New York 1900) ; Goddard, (Easements) (4th ed., London 1900); Jones, (Treatise on the Law of Easements' (Boston 1898) ; Innes, (Easements' (London 1893) ; Washburn, (Easements) (4th ed., Boston 1885); Gale, Easements' (7th ed., London 1899).