The infringement of an casement is commonly a nuisance, and may aeeord ngl v he abated, ei ther by act of the party injured or by appropriate legal f rneped i n (Sec XI isAxeu.) If the infringe. ment do• not amount to a nuisance. it may be punished, like any other violation of a right of property, an action of trespass, or, in some casts, of ejectment; and if the infringement be only thn-atened, or if the etmonondaw remedy be inadequate to redress the injury committed, an injunction may be granted to restrain the acts complained of. (See Thar.) But an easement is a true property right, or right in :11111 is protected not only against the acts of the I MIlei or possessor of the servient tenement, but against those of any person whatsoever. the same remedies being available in the one case as in the other. Where a right in the nature of an easement exists which is not thus protected. such as might arise by contract between two adjoining land-owners, this is a mere right in persona in, a license, and not an easement or a property right at all. A contract, however formal, can never create a legal interest in land.
Easements may arise in three ways, the second and third of which are, by a legal fiction, mere forms or variations of the first. These are: ( 1 ) grant. or deed: (2) prescription; and (3) implication. The deed of grant has from the earliest period of the common law been the pecu liar and appropriate instrument for the creation and transfer of an incorporeal interest in land, corporeal interests, such as freehold estates, being formerly conveyed only by the process known as livery of seisin. i.e. by an actual physi cal transfer of possession. By prescription is meant open and uninterrupted use and enjoy ment from time immemorial. which, in the view of the law, created a presumption of a grant of the right claimed at some remote period of time. Formerly this presumption could lie shown to lie unfounded and the claim thus defeated, hut in the United States, and for most purposes in England the presumption of a lost grant, as it is termed, is a pure fiction, and is no longer requisite to establish an ease ment by prescription. Easements by implica tion are such as arise from a legal presumption of the intention of the parties at the time a parcel of land is conveyed. Perhaps the best illustration of such an easement is What is known as a 'way of necessity,' which exists where one buys premises which are :hut off on all sides by intervening land from access to the highway. Bere the easement arises, not from the necessity of the case, but from a reasonable presumption that the grantor of the landlocked parcel intended to give with it a right of way over his remaining land.
of these several ways of creating easements, the first is the most comprehensive. All ease ments may arise by grant. and some only in that way. ln the [lilted States it is generally con sidered that negative easements, such as the casements of light, of lateral support. and the like. cannot exist by prescription. though the contrary view is taken in England and in a few of our States. On the other hand, only a
few classes of easements will arise by implica tion—suet'. that is to say, as involve a •continu ons and apparent' user of the premises affected, as an aqueduct or drain. There is much dif ference of opinion as to easements are properly to be as contimmu, appa rent. negative easements being included in some jurisdictions and excluded in others, and the decision being sometimes made lo turn on the question whether a permanent structure, like a drain, was actually apparent and known to the parties :It the time of the conveyance.
Easements may be or destroyed, either by release, by merger. by abandonment, or, in sore cases, by destruction of the premises to which they attach. _Merger occurs where the dominant and the servient estates become vested in the same person. liere the easement will not revive upon the subsequent conveyance of either of the estates to another person. It is not true, as is often said. that. an easement may be lost by mere non-user. But if the non-user be under such eircunistanees as to show an intention to abandon the easement. the easement may be lost. .Mere misuse of an casement is as imperative to destroy it as non - user. Such a right must be exercised within narrow limits: nothing may be done by the dominant tenant which increases the burden upon the servient tenement; neither may lie make any material change in the manner of exercising it hut the remedy for an excessive user of an ease ment is an action of trespass and not the for feiture of the right which has been abused. It is not, however, an unlawful or excessive user of an easement to enter upon the sprvient premises from time to time for the purpose of repair and of keeping the easement in good working order, nor for the purpose of abating a nuisance which interferes with its enjoyment.
It. is only Where all casement is of an ephem eral or temporary character that it is lost by any injury to the premises. The de,4 ruction I if a road by thant or earthquake does not affect the right of Way which exists With reference to it. The person claiming the easement may, at his own cost, make whatever repairs are neces sary to restore the way to its former condition. So, if a house having an easement of light be destroyed by tire, the easement is not lost, but revives on the rebuilding of the house. But easements of lateral support. such as those which attach to party-walls, are manifestly in tended only for the houses whit-ii are supported by suelu walls, and the complete destruetion of the premises has the effect of destroying the easements on both sides. Either party may thereupon rebuild on 'his own land at his own pleasure and without reference to his neighbor. if the party-wall is not completely destroyed. hut is susceptible of repair or recon struction. it may be restored by the party d•sir• ing to himself of the easement, at his own expense, and his right to the support of the wall continues as before.