What is EASEMENT?

A right in the owner of one parcel of land, by reason of such ownership,to use the land of another for a special purpose not inconsistent with a general property in the owner. 2 Waslib. Real Prop. 25.A privilege which the owner of one adjacent tenement hath of another, existing in respect of their several tenements, by which that owner against whose tenement theprivilege exists is obliged to suffer or not to do something on or in regard to his ownland for the advantage of him in whose land the privilege exists. Termes de la Ley.A private easement is a privilege, service, or convenience which one neighbor has ofanother, by prescription, grant, or necessary implication, and without profit; as a wayover his land, a gate-way, water-course, and the like. Kiteh. 105; 3 Cruise, Dig. 484.And see Harrison v. Boring, 44 Tex. 207; Albright v. Cortright, 04 N. J. Law, 330, 45 Atl.034, 48 L. R. A. 010, 81 Am. St. Rep. 504; Wynn v. Garland, 19 Ark. 23, 08 Am. Dec.190; Wessels v. Colebank, 174 111. 018, 51 N. E. 039; Terminal Land Co. v. Muir, 130Cal. 30, 08 Pac. 308; Stevenson v. Wallace, 27 Grat. (Va.) 87.The land against which the easement or privilege exists is called the “servient”tenement, and the estate to which it is annexed tlie “dominant” tenement; and theirowners are called respectively the “servient” and “dominant” owner. These terms aretaken from the civil law.Synonyms. At the present day, the distinction between an “easement” and a”license” is well settled and fully recognized, although it becomes difficult in some of thecases to discover a substantial difference between them. An easement, it has appeared,is a liberty, privilege, or advantage in land, without profit, and existing distinct from theownership of the soil; and it has appeared, also, that a claim for an easement must befounded upon a deed or writing, or upon prescription, which supposes one. It is apermanent interest in another’s land, with a right to enjoy it fully and withoutobstruction. A license, on the other hand, is a bare authority to do a certain act or series of acts upon another’s land, without possessing any estate therein; and, it being founded in personal confidence, it is not assignable, and it is gone if the owner of the land who gives the license transfers his title to another, or if either party die. Cook v.Railroad Co.. 40 Iowa, 450; Nunnelly v. Iron Co.. 94 Tenn. 397, 29 S. W. 301. 28 L. It.A. 421; Baldwin v. Tavlor, 100 Pa. 507, 31 Atl. 250; Clark v. Glidden, 00 Vt. 702. 15 Atl.358; Asher v. Johnson. 118 Ky. 702, 82 S. W. 300.Classification. Easements are classified as affirmative or negative; the former being those where the servient estate must permit some- tliinw to be done thereon, (as to pass over it, or to discharge water upon it;) the latter being those where the owner of the servient estate is prohibited from doing something otherwise lawful upon his estate, because it will affect the dominant estate, (as interrupting the light and air from the latter by building on the former.) 2 Washb. Real Prop. 301. Equitable L. Assur. Soc. v. Brennan (Sup.) 24 N. Y.Supp. 788; Pierce v. Keator, 70 N. Y. 447, 26 Am. Rep. 612. They are also either continuous or discontinuous. An easement of the former kind is one that is self perpetuating,independent of human intervention, as, the flow of a stream, or one which may be enjoyed without any act on the part of the person entitled thereto, such as a spout which discharges the water whenever it rains, a drain by which surface water is carried off, windows which admit light and air, and the like. Lampman v. Milks,21 N. Y. 505; Bonelli v. Blakemore. 60 Miss. 130, 5 South. 228. 14 Am. St. Rep. 550;Providence Tool Co. v. Engine Co., 9 R. I. 571. A continuous easement is sometimes termed an “apparent” easement, and defined as one depending on some artificial structure upon, or natural conformation of, the servient tenement, obvious and Eermanent, which constitutes the easement or ! the means of enjoying it. Fetters v.Humphreys, 18 N. J. Eq. 260: Larsen v. Peterson. 53 N. J. Eq. 8S, 30 Atl. 1094; Whalenv. Land Co.. 65 N. J. Law, 206, 47 Atl. 443. Discontinuous, non-continuous, or nonapparenteasements are those the enjoyment of which can be had only by theinterference of man, as. a right of way or a right to draw water. Outerbridge v. Phelps,45 N. Y. Super. Ct. 570; Lampman v. Milks, 21 N. Y. 515. This distinction is derivedfrom the French law. Easements are also classed as private or public, the former beingan easement the enjoyment of which is restricted to one or a few individuals, while apublic easement is one the right to the enjoyment of which is vested in the publicgenerally or in an entire community: such as an easement of passage on the publicstreets and highways or of navigation on a stream. Kennelly v. Jersey City, 57 N. J.Law, 293. 30 Atl. 531. 26 L. R. A. 281; Nicoll v. Telephone Co., 62 N. J. Law, 733, 42Atl. 583, 72 Am. St. Rep. 666. They may also be either of necessity or of convenience.The former is the case where the easement is indispensable to the enjoyment of thedominant estate; the latter, where the easement increases the facility, comfort, or convenienceof the enjoyment of the dominant estate, or of some right connected with it.Easements are again either appurtenant or in gross. An appurtenant easement is onewhich is attached to and passes with the dominant tenement as an appurtenancethereof; while an easement in gross is not appurtenant to any estate in land (or notbelonging to any person by virtue of his ownership of an estate in land) but a merepersonal interest in. or right to use, the land of another. Cndwalader v. Bailev. 17 R. I.495. 23 Atl. 20. 14 L. R. A. 300; Pinkum v. Eau Claire. 81 Wis. 301. 51 N. W. 550;Stovall v. Coggins Granite Co., 116 Ga. 376, 42 S. E. 723.

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