EASEMENT. A right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special pur pose not inconsistent with a general proper ty in the owner. 2 Washb. R. P. 25; Clark v. Glidden, 60 Vt. 702, 15 Atl. 358.
A privilege which the owner of one ad jacent tenement hath of another, existing in respect of their several tenements, by which that owner against whose tenement the priv ilege 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 land the privilege exists. Termes de la Ley, Ease ments; Downing v. Baldwin, 1 S. & R. (Pa.) 298; 3 B. & C. 339; Lawton v. Rivers, 2 M'Cord (S. C.) 451, 13 Am. Dec. 741; Com. v. Low, 3 Pick. (Mass.) 408; Forbes v. Bal enseifer, 74 Ill. 183; Oliver v. Hook, 47 Md. 301; Strong v. Wales, 50 Vt. 361; Howell v. Estes, 71 Tex. 690, 12 S. W. 62; Koenigs v. Jung, 73 Wis. 178, 40 N. W. 801.
Although the terms are sometimes used as if convertible, properly speaking easement refers to the right enjoyed by one and servi tude the burden imposed upon the other.
An interest in land created by grant or agreement, express or implied, which con fers a right upon the owner thereof to some profit, benefit, dominion, or lawful use out of or over the estate of another. Huyck v. Andrews, 113 N. Y. 81, 20 N. E. 581, 3 L. R. A. 789, 10 Am. St. Rep. 432.
In the civil law, the land against which the privi lege exists is called the servient tenement ; its pro prietor, 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 per sonify the estates as themselves owning or enjoying the easements ; Wolfe v. Frost, 4 Sandf. Ch. (N. Y.) 72; Hills v. Miller, 3 Paige, Ch. (N. Y.) 254, 24 Am. Dec. 218 ; Boston Water Power Co. v. R. Co., 16 Pick. (Mass.) 522.
There are said to be in England five differ ent classes of rights which one man may have over the land of another: Easemetts, profits I. prendre, personal licenses, custom
ary rights, and natural rights. Odgers C. L. 561. This classification is apparently ob served in the English cases. Of these sub divisions, profits I. prendre and licenses are treated under these titles. "Customary rights" are referred to below. They are more common in England than here. "Nat ural rights" do not depend upon grant or prescription, but are really incident to prop erty in land. Such are the right of lateral support to land by adjacent land, the right to the flow of water, and the right to air free from noxious smells. These rights, of course, exist without grant. See LATERAL SUPPORT; RIPARIAN PROPRIETORS; NUISANCE.
These distinctions have not always been fully observed in the cases here. The dis tinction between an ordinary easement and an easement in gross is that in the former there is and in the latter there is not a domi nant tenement ; Jones, Easements 25. Lord Cairns, L. J., said in Rangeley v. Midland R. Co., L. R. 3 Ch. 311, that there is no such thing in the civil law or in England as an easement in gross—an easement not connect ed with a dominant tenement. Mr. Jones (Easements 25) states that he uses the term "easement in gross" because it is in general use here by legal writers, judges and the profession, and it is useless to attempt to es tablish a refinement of definition intended to do away with it.
On the other hand, Sharswood, C. J., said : "That there may be the grant of an easement in gross personal to the grantee is not to be denied." Tinicum Fishing Co. v. Carter, 61 Pa. 21, 38, 100 Am. Dec. 597. To the same are 3 Kent 420; Washb. Easem. 8 ; Fisher v. Fair, 34 S. C. 203, 13 S. E. 470, 14 L. R. A. 333, with note citing other cases, in which the statement that "there is no such thing known to the law" as an easement in gross is characterized as a "refinement at tempted to be established" by Gale (Easem. 5) and Goddard (Easem. 6).