which the owner of land or buildings has for his own benefit in respect of his property, and to be used in connection therewith, in or over the property of his neighbour. In an old book, called Termes de la Ley, an easement was defined to be "a privilege that one neighbour hath of another by writing or prescription, without profit, as a way or sink through his land, or such like." But this is obviously insufficient as a definition, though it was judicially quoted with approbation by Bailey, J., in Hewlins v. Shippam, 1826, 5 Barn. & Cress. p. 229; 31 R. R. 757. This definition would embrace many rights that are not easements, for easements have many essential characteristics not shared by them (see the fuller definition by Goddard on Easements, and the explanation of it, 6th ed., ch. i. p. 2). According to this latter definition (which adopts the term used in Termes de la Ley), an easement is a privilege; that is, it is not a right to land or to any corporeal interest in land; it is a mere right of user or enjoyment of some right, in or over another's soil, which does not deprive the owner of the possession of his land, though it may, and probably does, in some way curtail his rights as owner. Thus a right of way does not render the soil any less the property of the landowner, though it will curtail the right he otherwise would have of building a wall or digging a pond on the site of the way. [The dominant owner has a right of action if his privilege of easement is substantially interfered with, but the owner of the servient tenement may exercise all rights of property which he has as owner of the soil and which do not interfere with the reasonable user of the easement (Clifford v. Hoare, 1874, L. R. 9 C. P. 362).] The next characteristic of an easement is that it is a right without profit. This distinguishes an easement from a profit à prendre, which is a right to enter another person's land and take something from it, as fish from a lake, or wood for firing, or stones for mending roads, or right of common (see PROFITS A PRENDRE). The next is that an easement must be possessed in respect of some corporeal hereditament to which it is appurtenant, that is, it is intended for the beneficial enjoyment of the latter, and cannot be severed from it by conveyance, will, or otherwise; and it passes with it to a purchaser or devisee of that hereditament [(Rangley v. Midland Rly., 1868, L. R. 3 Ch. 306, 311; Simpson v. Mayor of Godmanchester, [1897] A. C. 696). It seems that a right of way cannot itself support an easement (see Attorney-General v. Copeland, [1901] 2 K. B. 101, 106, s.c., reversed on another point, [1902] 1 K. B. 690; Goddard, p. 13).] This hereditament is commonly called the "dominant tenement," while the land or building over which the easement is exercised is called the "servient tenement." As to the latter, it is to be observed that, from the mere nature of the right, it must be the property of some person other than the owner of the dominant tenement, for any right a man may exercise in his own land he exercises as owner of the land-it is one of his proprietary rights, and not an easement. Thus if a man possesses two adjoining fields, and chooses to make a road over one to the other, the right to use the road is the owner's because the soil is his, and he can do what he likes with his own; but in the case of an easement of right of way over another's land, he is not the owner of the soil, and can only use his right in the manner and to the extent appointed by the owner of the servient tenement. The owner of the easement is called the "dominant owner," and the owner of the servient tenement is called the "servient owner." This feature of easements, that is, that there must be a "dominant tenement" or estate to which the right is attached, and in respect of which

VOL. V.

3

only the right can be used, excludes an important class of rights from the law of easements sometimes called rights in gross, that is, rights belonging to persons over the lands of others, given to them personally and independently of any estate, and public rights. An important instance of this class of rights is a right of public way, which is a right belonging equally to every individual member of the community. And as instances of other rights of the same class may be mentioned-rights to pitch tents in fairs and markets, public rights of fishing in rivers, and private rights granted to individuals by covenant, and not in respect of any property. [Cf. also the right which the owners of fishing-boats may have to fix moorings in the soil of the foreshore in tidal and navigable waters (Attorney-General v. Wright, [1897] 2 Q. B. 318).] Another characteristic of an easement is that it must exist and be used for the beneficial enjoyment of the dominant tenement only. [This does not mean that an easement shall cease to exist when from the nature of the right its exercise by the dominant owner confers some benefit upon others (see per Lord Watson in Simpson v. Mayor of Godmanchester, [1907] A. C., at p. 703).] Lord Brougham said, in Keppel v. Bailey, 1834, 2 Myl. & K. p. 535; 39 E. R. 1042; 39 R. R. 264), that it would be a novel incident attached to land that the owner and occupier should, for purposes wholly unconnected with that land, and merely because he is owner and occupier, have a right of road over other land; and speaking of a right claimed to cut wood, without any allegation that the wood when cut was to be used for the benefit of the dominant tenement, Byles, J., said, in Bailey v. Stevens, 1862, 12 C. B. N. S. 91, “How can such a right as this be claimed by the occupier of land as such? It is in no way connected with the enjoyment of the land occupied. A man might as well try to make a right of way in Kent appurtenant to an estate in Northumberland." On this principle it was held that a waterworks company could not take water from a stream, which they might have used lawfully for the benefit of land they owned adjoining the stream to supply a town at a distance (Swindon Waterworks Co., Limited, v. Wilts and Berks Canal Co., 1875, L. R. 7 H. L. 697; followed in M'Cartney v. Londonderry and Lough Swilly Rly. Co., [1904] A. C. 301). Another distinctive feature of an easement is that it can only impose an obligation on the servient owner to suffer or refrain from doing something on his own tenement for the advantage of the dominant owner. The first remark on this is that an easement is a right by which an obligation is imposed, not on the person of the servient owner, but on him with reference to his estate; and therefore any obligation imposed on him personally to do something, for instance, to build or keep in repair a wall, or to pump and supply water, is not an easement. On this principle it was held that the grantor of a right of way, that is, the servient owner, is not bound to repair the way, but that the obligation to do that is on the dominant owner (Pomfret v. Ricroft, 1 Wms. Saund.; [Highway Board of Macclesfield v. Grant, 1881, 51 L. J. Q. B. 357; cp. Buckley v. Buckley, [1898] 2 Q. B. 608; Rundle v. Hearle, ibid. 83]). The obligation on the servient owner is of a negative character only, that is, to suffer or refrain from doing something. Thus, in case of a right of way, he has to suffer the dominant owner to walk over his land; and in the case of ancient light, to refrain from obstructing it; and in the case of a right to support, to refrain from destroying the support. It is true that a servient owner, when granting the easement, may bind himself to some active obligation as to repair a way; but such a duty is not

one of the ordinary obligations of an easement, and it is doubtful if it would be more than a mere personal obligation, which would not pass to a future owner of the servient estate.

[Easements of Necessity.-Easements of necessity are "easements derived by the disposition of the owner of two tenements" (Master v. Hansard, 1876, 4 Ch. D. 721). The law implies such easements in favour of the land granted over the land reserved by the grantor; the principle being that no man shall derogate from his own grant. The most common instance is a way of necessity where one grants a close of land to another surrounded by the grantor's land (Gayford v. Moffat, 1868, L. R. 4 Ch. 133). Conversely, where the owner of land grants the land surrounding a close but reserves the close (Corporation of London v. Riggs, 1880, 13 Ch. D. 708), there will be an easement of necessity in favour of the grantor.

But in the latter of these two cases the expression "easement of necessity" is confined to an easement without which the property retained cannot be used at all, whereas in the former, easements which are necessary to the reasonable enjoyment of the property granted are included.

The law is thus explained by Stirling, LJ., in Union Lighterage Company v. London Graving Dock Co., [1902] 2 Ch., at p. 572. Referring to the leading case of Wheeldon v. Burrows, 1879, 12 Ch. D. 31, where the judgment was delivered by Thesiger, L.J., he says: "In it two rules are laid down in the following terms: The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantor all those continuous and apparent easements (by which, of course, I mean quasi-easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are, at the time of the grant, used by the owners of the entirety for the benefit of the part granted.' The second. . . 'is that, if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. Those are the general rules governing cases of this kind, but the second of these rules is subject to certain exceptions. One of those exceptions is the well-known exception which attaches to cases of what are called ways of necessity.' After reviewing various cases, the learned judge said, "These cases the proposition that in the case of a grant you may imply a grant of such continuous and apparent easements or such easements as are necessary to the reasonable enjoyment of the property conveyed, and have in fact been enjoyed during the unity of ownership, but that, with the exception which I have referred to of easements of necessity, you cannot imply a similar reservation in favour of the grantor of land.” In addition to rights of way, easements of necessity or quasi-easements, occur, inter alia, in the case of drains (Pyer v. Carter, 1857, 1 H. & N. 916; Hall v. Lund, 1863, 1 H. & C. 676), and in the case of light (Allen v. Taylor, 1880, 16 Ch. D. 357; Greenhalgh v. Brindley, [1901] 2 Ch. 325; Ray v. Hazeldine, [1904] 2 Ch. 17).]

"support

Licences. The difference between easements and licences in the nature of easements should be noticed (see LICENCE). It is an old principle of law that an incorporeal hereditament can only be granted by deed, and thus, that a deed is necessary for the creation of an easement [(Wood v. Leadbitter, 1845, 3 M. & W. 838; 67 R. R. 831).] It is true that easements can be, and very frequently are, acquired by prescription, when it is practically certain that there never was a deed; but this is by a

fiction of law, by which, after long user, a grant by deed is presumed to have been made in ancient times, and that the deed has been long since lost or destroyed; and this presumption is, except under adverse circumstances, permitted by the policy of the law, to quiet titles to rights which have for many years been enjoyed without dispute, but for which no legal origin, except long user, can be shown. If, however, a usage in the nature of an easement has been enjoyed for a limited time, less than the law requires for prescription, with the knowledge and assent of a landowner, but without any grant by deed, it is obvious. that it would be wrong for that usage to be treated as illegal, and the person exercising it as a trespasser liable for damages. The law in such and similar cases would imply that a licence or permission was granted, which, though not sufficient to create a permanent right, would be a sufficient excuse for the trespass, as it otherwise would have been. Without such knowledge and assent, doubtless the usage would constitute a trespass, for which the trespasser could be sued. In most cases a licence is revocable, and in this exists the principal distinction between a licence and an easement; but there are cases in which even a licence may become irrevocable, and thus practically an easement is acquired without deed, on the ground that revocation would, under the circumstances, be inequitable and unjust.

[Although a mere licence, e.g. to post bills on a wall, is revocable as such according to the doctrine of Wood v. Leadbitter, supra, it does not follow that there may not exist a right to sue on a contract to allow such bills to remain for a definite or a reasonable time (Kerrison v. Smith, [1897] 1 Q. B. 445; Wilson v. Taverner, [1901] 1 Ch. 578). In Lowe v. Adams, [1901] 2 Ch. 598, it was doubted whether, having regard to Walsh v. Lonsdale, 1882, 2 Ch. D. 9, the doctrine of Wood v. Leadbitter, supra, has survived the Judicature Act.]

Customary Rights.—Customary rights also require some notice here, as, though the law of customs (see CUSTOM) bears upon many subjects besides easements, easements and rights similar to easements may be claimed by custom. Such claims are an exception to the rule, that a deed is necessary for the creation of an incorporeal hereditament. An easement is commonly a right belonging to an individual, but it may also belong to a number of individuals belonging to a class, as the inhabitants of a parish or village. They may have a right, for instance, to dip for water at a spring, or to walk along a private road to their houses, and these rights, not belonging to the public at large, but being enjoyable in respect of their houses only, are easements, and may be enjoyable by custom. An instance of this occurs in Carlyon v. Lovering, 1857, 1 H. & N. 784, where a customary right is alleged that tinners and miners within the Stannaries of Cornwall, working mines in the Stannaries near streams, should have the privilege of washing the tin in the streams, and throwing the rubbish into the stream. This right was claimed by custom, and, being claimed in respect of the mines, had every feature of an easement. [Again, a custom for fishermen inhabitants of a parish to dry their nets on the land of a private owner situate near the sea in the parish, at all times necessary for their business, has been held good; and the use of a modern method of drying nets will not take away the privilege, if no unreasonable burden is thereby imposed on the landowner (Mercer v. Denne, [1905] 2 Ch. 538).] Claims to easements by custom are expressly recognised in the Prescription Act, 2 & 3 Will. Iv. c. 71.

Natural Rights-Easements are of two kinds, viz.: easements, commonly so called, and "Natural Rights." The main distinction. between them is in their origin. It has been stated above that, as a general rule, all incorporeal hereditaments have their origin in a grant, which grant is, however, in many cases only presumed or implied. Natural rights, however, stand on a different footing. They are given by law to every owner of land, irrespectively of any grant by the servient owner, as without them no man would be sure that his land would not, at any time, be rendered useless by his neighbour's otherwise lawful act. They are given for mutual security, and therefore from motives of public policy. They are inherent in land of natural right, and are secured by the common law. These rights have reference to support for land from adjacent and subjacent soil while in its natural state, that is, unbuilt upon and unexcavated, and the due enjoyment of air, light, and water by every landowner, which, by provision of nature, pass from the land of one person to that of another. (See AIR, LIGHT, SUPPORT, WATER, WATERCOURSE, and WATERWAY).

The

Origin of Easements.-Easements, in the limited sense of the word -that is, excluding natural rights, which are a legal incident to the ownership of land while in its natural condition-can, except in the case of wills and customs, only be acquired by grant from the servient to the dominant owner. In Rangeley v. The Midland Rly. Co., 1868, L. R. 3 Ch. 310, which was a case relating to a right of way, Lord Cairns, L.J., said, "I will assume, in the first place, that that is a correct expression, and that the object is to create what is properly termed an easement over land; but, assuming that to be so, it appears clear that to create an easement over land you must possess the ownership of the land. Every easement has its origin in a grant, express or implied. person who can make that grant must be the owner of the land. A railway company cannot grant an easement over the land of another person," the company having, on stopping up a public way, assumed the right to create a new public way in lieu thereof, under their supposed parliamentary powers, over land they had not purchased. It is true that in the majority of cases no deed or grant can be produced to prove title to an easement, and that the only title is long user, that is, prescription (see PRESCRIPTION); but prescription is a legal fiction by which the law, to supply a legal origin for a right that has been exercised for a number of years, requires a deed to be presumed to have been executed, whereby a grant of the right was lawfully made in ancient times, which, in the course of years, has been lost or destroyed, and thus prescription is no exception to the rule which requires a deed for the acquisition of an incorporeal hereditament. As, however, prescription. was often defeated by technicalities in evidence, an Act of Parliament was passed, commonly called the Prescription Act, to make evidence of user under certain conditions for twenty, thirty, or forty years, according to the case, sufficient to raise the necessary presumption of an ancient lost grant; and so the law is now satisfied by shorter user, but still the presumption of a grant subsists. Notwithstanding this Act, cases occur in which user of an easement may have continued for twenty years or more, but the necessary conditions to satisfy the law of prescription may not exist, or may not be capable of proof. In such cases the law provides another fiction, allowing presumption of a modern grant which has been lost. This fiction has not escaped judicial objection, and reasonably so. For if a right be so claimed, a question