The essential qualities of easements, properly so called, may be thus distinguished: 1. Easements are incorporeal. 2. They are imposed upon cor poreal property. 3. They confer no right to a par ticipation in the profits arising from It. 4. They must be imposed for the benefit of corporeal or incorporeal hereditaments, and are usually imposed for the benefit of corporeal. 5. There must he two distinct tenements--the dominant, to which the right belongs ; and the servient, upon which the obliga tion is imposed. 6. By the civil law It Is also re quired that the cause must be perpetual. Gale, Easem. (8th ed.) 8.
Easements in gross are personal, are not assignable, and will not pass by a deed of conveyance ; Washb. Easem. 12; Tinicum Fishing Co. v. Carter, 61 Pa. 38, 100 Am. Dec. 597; Kuecken v. Voltz, 110 Ill. 268. See 14 L. R. A. 333, n. They are not inheritable ; Wagner v. Hanna, 38 Cal. 111, 99 Am. Dec. 354 ; Hall v. Armstrong, 53 Conn. 554, 4 Atl. 113,; but in Hankey v. Clark, 110 Mass. 262; pooh v. Mockley, 33 Wis. 482 ; Lonsdale Co. v. Moles, 21 Law Rep. 658, they are held to be assignable and inheritable. A way is never presumed to be in gross when it can be construed to be appurtenant to the land; French v. Williams, 82 Va. 462, 4 S. E. 591; Cadwalader v. Bailey, 17 R. I. 495, 23 Atl. 20, 14 L. R. A. 300.
Easements are also classified as contin uous and discontinuous, the distinction be tween them being thus stated : "Continuous are those of which the enjoyment is, or may be, continual, without the necessity of any actual interference by man. Discontinuous are those, the enjoyment of which can be had only by the interference of man, as rights of way, or a right to draw water." Lamprnan v. Milks, 21 N. Y. 505. Of the former the right ,to light and air would be an example, of the latter, the right to use a pump ; Chase's Bla. Com. 232, note, which see as to Easements generally.
There must be two tenements owned by distinct proprietors : the dominant, to which the privilege is attached ; the servient, upon which it is imposed. Tudor, Lead. Cas. 108; Grant v. Chase, 17 Mass. 443, 9 Am. Dec. 161; Meek v. Breckenridge, 29 Ohio St. 642.
Easements confer no right to any profits arising from the servient tenement; Waters v. Lilley, 4 Pick. (Mass.) 145, 16 Am. Dec. 333 ; 30 E. L. & Eq. 189 ; Pierce v. Keator, 70 N. Y. 419, 26 Am. Rep. 612. They are in corporeal. Like other incorporeal heredita ments they have been held not to pass with out a grant ; 3 Kent 434; Orleans Nay. Co. v. New Orleans, 2 Mart. La. (0. S.) 214. They are specifically distinguished from oth er incorporeal hereditaments by the absence of all right to participate in the profits of the soil charged with them ; Gale, Easem. (8th ed.) 10.
By the common law, they may be tem porary; 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 prejudice or destruction of the privilege ; Gale, Easem. (8th ed.) 9; Washb. Easem. 5.
Easements are as various as the exigencies of domestic convenience or the purposes to which buildings and lands 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 receiving air, light, or heat from or over other land; of receiving or discharging water over, or hav ing support to buildings from, other land; 3 E., B. & E. 655; of a right to take ice on a pond ; Hoag v. Place, 93 Mich. 450, 53 N. W. 617, 18 L. R. A. 39 ; 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; Dana v. Valentine, 5 Mete. (Mass.) 8 ; of burying in a church, or a particular vault ; 8 H. L. Cas. 362 ; 11 Q. B. 666 ; Long v. Weller's Ex'or., 29 Gratt. (Va.) 347; Can ny v. Andrews, 123 Mass. 155 ; Central Wharf & Wet Dock Corp. v. India Wharf, 123 Mass. 562 ; Onthank v. R. Co., 71 N. Y. 194, 27 Am. Rep. 35. See CEMETERY.
The right to maintain a building or other permanent structure upon the land of an 1 other cannot be acquired by custom ; Attor ney General v. Tarr, 148 Mass. 309, 19 N. E. 358, 2 L R. A. 87.
Open visible ditches; Thayer v. Payne, 2 Cush. (Mass.) 327; McElroy v. McScay, 71 Vt. 396, 45 Atl. 898; Stuyvesant v. Early, 58 App. Div. 242, 68 N. I. Supp. 752; Sander lin v. Baxter, 76 Va. 299, 44 Am. Rep. 165; Quinlan v. Noble, 75 Cal. 250, 17 Pac. 69 ; a furnace flue; Ingals v. Plamondon, 75 Ill. 118; an alley way ; Cihak v. Klekr, 117 Ill. 643, 7 N. E. 111; Burns v. Gallagher, 62 Md. 462; a water ditch and water rights; Cave v. Crafts, 53 Cal. 135; rights of way ; Ellis v. Bassett, 128 Ind. 118, 27 N. E. 344, 25 Am. St. Rep. McTavish v. Carroll, 7 Md. 352, 61 Am. Dec. 353; stairways in a building; Galloway v. Bonesteel, 65 Wis. 79, 26 N. W. 262, 56 Am. Rep. 616; Geible v. Smith, 146 Pa. 276, 23 Atl. 437, 28 Am. St. Rep. 796; a flow of water forced from the vendor's premises through pipes to the prem ises of the vendee; Toothe v. Bryce, 50 N. J. Eq. 589, 25 Atl. 182; a portion of a build ing projecting upon the land retained by the vendor; N. Y. C. & H. R. R. Co. v. Need ham, 29 Misc. 435, 61 N. Y. Supp. 992; have all been held the subject of implied ease ments. Rights to a several fishery in the adjoining sea enjoyed by grantees of land and their predecessors in title from time im memorial were held to pass under a royal patent, though the ha bendum clause recited that they were to have and to hold "the above granted land," which standing alone might not include a fishing right; Damon v. Hawaii, 194 U. S. 158, 24 Sup. Ct. 617, 48 L. Ed. 916, reversing 14 Hawaiian Rep. 465. The fact that the particular method of ex ercising this alleged right, while prevailing in Hawaii, differed from those known to the common law, was held to make no differ ence; Carter v. Hawaii, 200 U. S. 255, 26 Sup. Ct. 248, 50 L. Ed. 470.