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end. Such a case would arise if Jones, having a right of pasture on Smith's land, or a right of fishery in Smith's pond, should give permission to Smith to build upon the pasture, or to permanently drain the pond, and Smith should act in accordance with the permission.

SECTION 2. EASEMENTS.

§ 34. Definition of easement. The word easements, as we shall use it in a broad sense, includes rights, good against the world in general, to use a certain parcel of land without possession; and rights, enforceable against the world in general, to restrict some use of another's land or its incidents for the benefit of some property of the holder of the right. There are numerous sorts of easements. We shall examine only some of the more ordinary; but thereby we shall obtain an idea of the legal principles concerning easements in general.

Before taking up the discussion of particular types of easements, it is well to state a few facts which apply to easements generally.

§ 35. Creation of easements. An easement may be created by grant, by prescription, by devise, by agreement, or through condemnation in the exercise of eminent domain rights. What has been said above concerning the creation of profits a prendre applies to the creation of easements and need not be repeated here (§ 32, above).

§ 36. Easements appurtenant. If an easement is created for accessory benefit to a land-possessor in the use of a certain parcel of land, it is said to be appurtenant to that land. The statements that have been made (§ 30, above), concerning profits appurtenant, apply to ease

ments appurtenant. If there is an easement or a profit appurtenant to a piece of land, it will pass with the land upon any conveyance or devise, although not mentioned in the instrument of transfer. For instance, if Jones, owning a city lot with an appurtenant right of passageway over a private alley running across his neighbor's lots, conveys his lot to Smith without mentioning the way or any appurtenance, Smith gets the easement over the alley nevertheless as one of the benefits permanently attached to possession of the lot.

§ 37. Easements in gross. There is some discussion in text-books upon easements as to whether properly an easement in gross is a possible interest in land. There is no doubt that rights in gross which come within our definition of easements may exist in all jurisdictions-for instance a railway company's right of way over land not owned by it. However, there is a question whether rights to use another's land without possession for merely private purposes may exist in gross in some jurisdictions. They may at least in most jurisdictions.

It seems, however, that in some of the jurisdictions where they are recognized, they are not transferable or transmissible rights, but can be used only by the person to whom they are first granted or devised, or who obtains them by prescriptive user, or, generally, by his servants and agents. In other jurisdictions, however, such a right in gross may be transferred, and if, by the terms of its creation, it is to last long enough, it may pass to the heirs or personal representatives of a person who dies possessed of it. Compare § 31, above.

§ 38. Extent of easements: Conventional easements. The extent of an easement created by grant, devise, or agreement is determined from the terms of the instrument and the circumstances under which it was made. Sometimes it is a very difficult matter to ascertain the proper scope of an easement. For instance, if a way is created appurtenant to a certain lot, it may be hard to determine from the instrument of creation whether it was intended that it should be a way for carriages as well as foot passage, and whether it should exist only for such purposes as were incident to the use of the lot at the time of the creation of the easement, or also for additional purposes arising from new uses uses of the dominant tenement (1).

§ 39. Same: Prescriptive easements. The extent of an easement created by prescription is determined from the scope of the claim of right to use indicated by the nature and extent of the user during the prescriptive period. It is sometimes a difficult question, usually one for the jury, to determine in detail the extent of this claim of right. Cases arising over claims of prescriptive rights of way are good illustrations.

Ballard drives a cart along a certain course over Dyson's adjoining land to the highway whenever he goes to market. Sometimes the cart is drawn by a horse, sometimes by an ox. Ballard's predecessor in possession was accustomed to drive hogs to the slaughter-house over the same way. These uses have continued more than

(1) See Allan v. Gomme 11, A. & E. 759; Newcomen v. Coulson, 5 Ch. Div. 133.

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twenty years without objection on the part of Dyson or his predecessors in the possession of the adjoining lot. Ballard now claims a prescriptive right of way, broad enough to permit him to drive oxen to the slaughterhouse. The question is whether the claim of right under which the prescriptive user of the way was evidently made, included such a use within its scope.

Higginson claims an easement of way by prescription, broad enough to include a right to cart coal to market from a little marl field across the land of Cowling. A prescriptive way for farming purposes is conceded to him by Cowling, but, inasmuch as neither Higginson nor his predecessors in the possession of the little marl field have ever used the road for carting coal, Cowling denies that this use is included within the scope of the easement. No coal had been mined on the little marl field for over seventy years until recently.

It was held in the two English cases (2) involving the sets of facts contained in the two preceding paragraphs that it was a question for the jury to decide whether or not the prescriptive claim of right justified the use claimed by its owner; and it was intimated that a verdict either way would have been sustained by the court on the evidence. It is to be observed that in neither case had the use contended for been made within the prescriptive period. In both cases, however, the prescriptive user had been broad enough to justify the inference of an apparent

(2)

Ballard v. Dyson, 1 Taunt. 279; Cowling v. Higginson, 4 M. & W. 245.

claim of right to use generally, for all ordinary purposes of a roadway.

§ 40. Effect of excessive use by owner of easement. If the owner of an easement uses the servient land in a way not within the scope of his right, he becomes a trespasser. For instance, if the eaves of Brown's house overhang Black's land, and Brown has an easement appurtenant to his lot to have them so overhang and to have the water from them drip onto Black's lot, he may not extend the eaves farther over Black's land, or alter his building so as materially to increase the flow of water from the eaves, without becoming a trespasser; but he may merely raise the eaves without exceeding his rights (3).

Even though it becomes impossible to exercise an easement according to its terms, the owner of it will not be entitled to use the servient land otherwise than in strict accordance with them, unless the impossibility is due to the fault of the servient possessor. For instance, if a private way becomes impassable from storms or lack of repairs the owner of the easement has no right to deviate from it and pass the obstruction over the adjoining land of the servient possessor (4). However, members of the public finding a public way impassable may pass the obstruction over lands adjoining the road if there is no other reasonably convenient public way to get to the destination (5).

§ 41. Repairs and improvements in aid of easements. The possessor of the servient land is under no obligation

(3) Harvey v. Walters, L. R. 8 C. P. 162.
(4) Taylor v. Whitehead, 2 Doug. 745.
(5) Campbell v. Race, 7 Cush. (Mass.) 408.

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