A covenant to erect and maintain a fence on a railroad, contained in a grant of a right of way, was held to run with the land, be cause the covenant gave to the grantee an interest in the nature of an easement in the adjoining land of the grantor; Bronson v. Coffin, 108 Mass. 175, 11 Am. Rep. 335; cited in Joy v. St. Louis, 138 U. S. 1, 11 Sup. Ct. 243, 34 L. Ed. 843. An easement may be cre ated by way of exception or reservation; Claflin v. R. Co., 157 Mass. 489, 32 N. E. 659, 20 L. R. A. 638 ; and rights in the nature of an easement may be created by statute; At torney General v. Williams, 174 Mass. 476, 55 N. B. 77, where an act restricted the height of buildings bordering on a public square under the power of eminent domain and provided compensation to the abutting owners. The court said that the act added to the public park rights in light and air and view over adjacent laud which were "in the nature of an easement created by the statute and annexed to the park." It was further said "it would be bard to say that this statute, might not have been passed in the exercise of the police power," but that, in providing compensation, it conformed to an exercise of the right of eminent domain. A similar right secured by statute is that of lateral support.
An easement of private way over land must have a particular, definite line; Crosier v. Brown, 66 W. Va. 273, 66 S. E. 326, 25 L. R. A. (N. S.) 174. To establish an easement of a private way by prescription, the use must be continuous and uninterrupted under a bona fide claim of right adverse to the owner of the land and with his knowledge and silence. If the use is, by his permission or if he denies the right, the title does not accrue; id.; verbal protests against the use prevent its accruing; Reid v. Garnett, 101 Va. 47, 43 S. E. 182; but it is held that mere verbal denial by the owner does not tend to prove that the enjoyment of the way was interrupted or had been under the own er's license ; Okeson v. Patterson, 29 Pa. 22. See 25 L. R. A. (N. S.) 174, note.
Mere knowledge by a railway company that the public and an adjoining owner are passing over its right of way will not create a right of way, especially when the company erects signs notifying the public that it is railroad property; Andries v. Ry. Co., 105 Mich. 557, 63 N. W. 526.
Forbidding an adjoining owner from us ing a way over his land and beginning to put up a fence will not in law prevent such adjoining owner from acquiring a right of way, when the latter with threats prevented the erection of a fence and the owner took no proceedings to establish his rights; Con nor v. Sullivan, 40 Conn. 26, 16 Am. Rep. 10.
Some of these are affirmative or positive, e., authorizing the commission of acts on the lands' of another actually injurious to it ; as, a right of way,-or negative, be ing only consequentially injurious; as, for bidding the owner from building to the ob struction of light to the dominant tenement.
Tudor, Lead. Cas. 107; 2 Washb. R. P. 26.
All easements must originate in a grant or agreement, express or implied, of the owner of the servient tenement; Huy& v. Andrews, 113 N. Y. 81, 20 N. E. 581, 3 L. R. A. 789, 10 Am. St. Rep. 432. The evidence of their existence, by the common law, may be by proof of the agreement itself, or by prescription, requiring an uninterrupted en joyment 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 prov ed by grant. Use, therefore, is 'not essential to its existence; Gale, Easem. 23, 81, 128; 2 Bla. Com. 263. An easement can only be created by a conveyance under seal or by long user, from which such conveyance is presumed ; Cagle v. Parker, 97 N. C. 271, 2 S. E. 76 ; see Hammond v. Schiff, 100 N. C. 161, 6 S. E. 753; or by necessity; Butter worth v. Crawford, 46 N. Y. 349, 7 Am. Rep. 352 ; Cihak v. Klekr, 117 Ill. 643, 7 N. E. 111; and the burden is on one claiming that it was by virtue of a license, to prove that fact; Colburn v. Marsh, 68 Hun 269, 22 N. Y. Supp. 990. As to the creation of ease ments by deed, see 8 L. R. A. 617, note ; and by implication, see O'Brien v. R. Co., 74 Md. 363, 22 Atl. 141, 13 L. R. A. 126.
Where the owner of a tract of land front ing upon a public highway sells a portion thereof which is entirely surrounded by the land of the grantor and of strangers with no outlet, except over the lands of the gran tor, the grantee is entitled to a right of way over the grantor's land, unless the situation of the land or the object for which it is used and conveyed shows that no grant of such right was intended ; Mead v. Anderson, 40 Kan. 203, 19 Pac. 708. See Kinney v. Hook er, 65 Vt. 333, 26 Atl. 690, 36 Am. St. Rep. 864.
In case of a division of an estate consist ing of two or more heritages, the question whether an easement or convenience, which may have been used in favor of one in or over the other by the common owner of both, shall become attached to the one or charged upon the other in the hands of separate own ers, by a grant of one or both of those parts, or upon a partition thereof, must depend, where there are no words limiting or defin ing what is intended to be embraced in the deed or partition, upon whether the ease ment is necessary for the reasonable enjoy ment of the part of the heritage claimed as an appurtenance.