EASEMENT. A right in the owner of one parcel of land, by reason of such owner ship, to use the land of another for a srecial purpose not inconsistent with a general pro perty in the owner. 2 Washburn, Real Prop. 25.
A privilege which the owner of one adja cent tenement bath of another, existing in respect of their several tenements, by which that owner against whose tenement the privi lege exists is obliged to suffer or not to do something on or in regard to his own land for the advantage of him in whose laud the privilege exists. Termes de la Ley, Ease ments; Bell, Law Diet. (ed. 1838) Easements, Servitude; 1 Serg. &R. Penn. 298 ; 3 Barnew. & C. 339 ; 5 id. 221 ; 3 Bingb. 118 ; 2 M'Cord, So. C. 451 ; 3 id. 131, 194; 14 Mass. 49 ; 3 Pick. Mass. 408.
In the civil law, the land against which the privilege exists is called the servient tenement; its proprietor, the servient owner ; be in whose favor it exists, the dominant owner ; his land. the domi nant tenement. And, as these rights are not per sonal 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. 4 Sandf. Ch. N. Y. 72; 3 Paige, Ch. N. Y. 254; 16 Pick. Mass. 522.
2. Easements have these essential quali ties. There must be two tenements owned by several proprietors : the dominant, to which the privilege is attached ; the servient, upon which it is imposed. Tudor, Lead. Cas. 108 ; 17 Mass. 443. Easements, strictly con sidered, exist only in favor of, and are im posed only on, corporeal property. 2 Wash burn, Real Prop. 25. They confer no right to any profits arising from the servient tene ment. 4 Sandf. Ch. N. Y. 72; 4 Pick. Mass. 145 ; 5 Ad. & E. 758 ; 30 Eng. L. & Eq. 189; 3 Nev. & P. 257. They are incorporeal. By the common law, they may he temporary ; by the civil law, the cause must be perpetual. They impose no duty on the servient owner, except not to change his tenement to the pre judice or destruction of the privilege. Gale, Easem. 3d ed. 1-18 ; Washburn, Easem. Index.
3. Easements are as various as the exi gences of domestic convenience or the pur poses to which buildings and land may be applied.
The following attach to land as incidents or appurtenances, viz.. the right— Of pasture on other land ; of fishing in other waters ; of taking game on other land; of way over other land ; of taking wood, minerals, or other produce of the soil from other land ; of receiving air, light, or heat from or over other land ; of receiving or dis charging water over, or having support to buildings from, other land, 3 Ell. B. & E. 655 ;
of going on other land to clear a mill-stream, or repair its banks, or draw water from a spring there, or to do some other act not involving ownership ; of carrying on an offensive trade, 2 Bingh. N. c. 134 ; 5 Mete. Mass. 8; of burying in a church, or a par ticular vault. Washburn, Easem. ; N. Y. Civ. Code, pp. 149, 150 ; 8 Hou. L. Cas. 362 ; 3 Barnew. & Ad. 735 ; 11 Q. B. 666.
4. Some of these are affirmative or posi tive,—i.e. 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 to the dominant tenement. Tudor, Lead. Cas. 107 ; 2 Washburn, Real Prop. 26.
All easements must originate in a grant or agreement, express or implied, of the owner of the servient tenement. The evidence of their existence, by the common law, may be by proof of the agreement or by pre scription, requiring actual and uninterrupted enjoyment immemorially, or for upwards of twenty years, to the extent of the easement claimed, from which a grant is implied. A negative easement does not admit of posses sion; and, by the civil law, it cannot be ac quired by prescription, and can only be proved by grant. Use, therefore, is not es sential to its existence. Gale, Easem. 23. 81, 128 ; 2 Blackstone, Comm. 263 ; Bell, Law Diet. Servitudes.
In this country the use of windows for upwards of twenty years seems in several of the states, contrary to the English rule and conformable to the rule of the civil law, not to be evidence of a right to continue them as against an adjoining owner. See ANCIENT LIGHTS ; 19 Wend. N. Y. 309 ; 2 Conn. 397 ; 10 Ala. N. s. 63 ; 6 Gray, Mass. 255 ; 26 Me. 436 ; 16 Ill. 217.
5. Easements are extinguished: by re lease ; by merger, when the two tenements in respect of which they exist 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 inconsistent with its existence ; by cessation of enjoyment, 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. In some cases a shorter time will suffice. 2 Washburn, Real Prop. 56-60, 82-85, 453-456 ; Washburn, Easem. See, generally, 2 Washburn, Real Prop. 25 ; 3 Kent, Comm. 550 ; Cruise, Dig. tit. 31. c. 1. 9. 17 ; Gale, Easem. ; Washburn, Easem. (1862).