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easement appurtenant to his lot to have the use of the wall for his building. If the wall stands partly on the land of A, and partly on B's land, generally each owns the part on his land, and has an easement appurtenant in the other part.

§ 57. Creation of party wall easements. These rights do not necessarily exist if there is a common division wall between adjoining buildings, but must be based upon some expressed or implied grant or agreement in the respective chains of title to the two lots, or upon the compliance with some statute giving the right, or perhaps, in some jurisdictions, under some circumstances, upon prescriptive assertion of a claim to the right.

§ 58. Statutes concerning party walls. In some of our states there are statutes concerning party walls, some of which provide that the owner of land may place one wall of his building partly on adjoining land as a party wall, and that the neighbor shall have the right to use the wall when he builds. There have been decisions both for and against the constitutionality of these statutes by the courts of different states. Independently of such a statute, of course such an infringement of a neighbor's boundary line would be a trespass, and the neighbor would have the right to take as his own the part of the wall built on his ground.

§ 59. Ownership in common of party wall. Sometimes, though rarely in this country, a party wall and the land on which it stands, is owned and possessed in common by the owners of the two adjoining lots. In such a case,

these owners have not mere easements in the wall, but possessory rights of user.

§ 60. Party wall easement rights. An ordinary party wall easement entitles its owner to keep the wall in repair and to increase its height for the purpose of erecting a taller building, if he does this carefully and with due regard to the stability and purposes of the wall. The addition to the wall is subject to the same rights as is the part beneath. The owner of the easement can not compel the owner of the servient tenement to repair or to aid him in repairing or maintaining the wall even though it is in a ruinous condition. If the easement was intended to outlast the natural life of the wall, however, he may go so far as to rebuild it, taking reasonable care against injuring his neighbor's property in so doing. If the easement was created for the life of the one wall only, the easement is at an end when the wall is destroyed by fire or becomes otherwise totally unusable, and, in such a case, the owner of the easement would have no right, under the guise of repairing, practically to rebuild a new wall. He has no right to put windows in the wall (19). Indeed, it has been held that he violates the right of his neighbor if he does so, is liable to him for damages, and, in a proper case, may be compelled by injunction to close up the opening.

§ 61. Division fences. A right to have a division fence wholly or partly on a neighbor's land is a common appurtenant easement. Often there is an accessory obligation, enforceable against the successive possessors of

(19) Normille v. Gill, 159 Mass. 427.

the servient tenement, to maintain the fence at their own expense. This obligation is sometimes spoken of as an easement, but, being a right enforceable against particular persons only, namely, the successive possessors of the servient tenement, it cannot properly be classed as an easement, even though we use the word in its widest sense. It belongs among the rights discussed in Chapter III of this article.

This spurious easement may also be obtained by prescription (19a).

§ 62. Statutes concerning division fences. Statutes providing for the apportionment of the burden of maintaining division fences between adjoining owners exist in many of our states. Generally they do not require a land-owner to contribute to the expense of maintaining such a fence, if he chooses to let his land lie unenclosed and unoccupied or sometimes simply unenclosed. of the statutes prescribe a special process for determining the proportion of the fence which each owner is to maintain.

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§ 63. Light and air. A right to have light come to certain windows or other openings in a building across the land of another is a common easement in England, and is of less frequent occurrence in this country. It is difficult, if not impossible, to obtain easements of light and of support for land and buildings by prescription in most jurisdictions of the United States. The difficulty

(19a) Bronson v. Coffin, 108 Mass. 184-5; Adams v. Van Alstyne, 25 N. Y. 232.

lies in finding a claim of right to use, evidenced by some interference with the rights of the possessor of the land to be burdened, which he can successfully oppose within the prescriptive period. Easements of this sort may, however, be obtained by grant, devise, or written contract, or through condemnation by a person having eminent domain rights.

§ 64. Pews. Permanent pew rights in churches are generally easements in gross. It is possible, however, to give a lease of the pew, involving delivery of possession to the pew-holder. If a mere revocable permission to occupy is contemplated by the parties, the pew-holder has no property right to the pew, properly speaking.

§ 65. Burial rights. Burial rights in a cemetery may exist, either by virtue of ownership and legal possession of a burial lot, or as easements in a lot owned by the corporation or society controlling the cemetery. The use of lots in the cemetery by the owners of the burial rights is subject to whatever reasonable rules the corporation or society controlling the cemetery enforces.

§ 66. Public parks. Public parks sometimes exist by virtue of an easement in the public for that use, though probably more frequently the state or some municipality owns the park in fee. If the park is created by common law dedication, only an easement passes to the public, ownership of the land remaining unchanged.

§ 67. Miscellaneous easements. Rights to drain across another's land, either through artificial ditches or through pipes, rights to carry water supply by any of various

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means across another's land, and rights to construct, maintain, or use artificial water courses on another's land are common sorts of easements which are governed by general principles already noted.

Telegraph and telephone companies and electric power companies frequently acquire easements to maintain wires and poles across another's land for the purposes of their business.

A right to flow water upon another's land by means of a dam or otherwise is a common easement, especially in the New England states.

Other common types of easements are: a right to pile lumber or other material on another's land; a right to have a sign or part of a building overhang a neighbor's lot; a right to place advertisements on another's land.

§ 68. Implication of easements. If a person makes a conveyance of certain land, retaining other land adjoining or in the neighborhood, easements may arise by implication from the conveyance and the circumstances under which it was made, in favor of the retained land over the land conveyed or vice versa, without mention being made of them in the instrument of conveyance. The principles governing such implications are treated in the article on Title to Real Estate, § § 27-30, in Volume VI.

SECTION 3. EQUITABLE EASEMENTS.

§ 69. Distinctions. It has already been pointed out (§ 32 and § 35) that an easement cannot be granted to a person so as to give him a complete legal title except through a deed, or, in some states, a written instrument with or without a seal; and, that in cases where there is

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