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property is held or enjoyed, have to revert to the subject of commons and other analogous hereditaments. We may here mention some long-established usages which obtain in particular localities, and which, to some extent, resemble common, though different in their nature. These are what are called "cattlegate" in the north and "beastgate" in the south, and "shack" in Norfolk, Lincolnshire, and Yorkshire. These seem all to have similar origin, where several owners of small adjoining parcels of ground, in order to save the expense of fences and for more beneficial enjoyment, have allowed their cattle to wander promiscuously over the whole, the number of cattle being, of course, limited proportionally to the several parcels of land. "Shack" is upon arable land after harvest until the land is sowed again. In some cases where the original boundaries have been lost, the result is that the ownership of the land

is the right to turn so many beasts upon it, but it is essentially different [*31] *from common rights in that the soil itself belongs to the proprietors. It is said that "where one who has purchased divers parcels together in which the inhabitants have used to have shack,' and long since has inclosed it, and notwithstanding always after harvest the inhabitants have had shack there by passing into it by bars or gates with their cattle, there it shall be taken as common appendant or appurtenant, and the owner cannot exclude them of common there notwithstanding that he will not common with them, but hold his own so inclosed in severalty; and that is proved by the usage, for, notwithstanding the ancient inclosure, the inhabitants have always had shack there" (f). In the absence of such an usage an owner of “ "shack may inclose, if he please, and hold in severalty absolutely without regard to other owners: and even when the right of shack continues the land becomes his in severalty, and subject only to that right. In the other cases of the "cattlegate" and "beastgate," the original boundaries seem to have been lost, and the owners jointly possess the land in undivided shares with several inheritance (g). It is conceived that each of them may obtain by partition his share of the land in severalty, which, if there existed minerals under the land, might be of the utmost importance; and from this the distinction between these customs and commons is apparent.

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We have referred to the powers which the lords of *manors and [*32] others seized in fee of the lands over which rights of common exist, have to inclose parts of the land: these powers did not extend to diminish or interfere with the rights of the commoners, which could only be done by the consent of all, a thing never in practice capable of being obtained where the numbers are large. In order, however, to render the large tracts of common land more beneficial to society by cultivation, acts of parliament have been from time to time passed authorizing inclosure of particular commons, and the allotment of specific parts in severalty to the commoners in lieu of their rights of common. This has been reduced to a systematic process. A general act

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has been passed under which inclosure commissioners for England and Wales have been established, before whom proposals for inclosures are laid, and who arrange and sanction the details of each, and the allotments to be made to the lord and the commoners in lieu of their respective interests. The commissioners make an annual report to parliament of the commons which have been dealt with by them during the preceding year, and in pursuance of this report an act is now annually passed authorizing the enclosures reported upon (h).

II. In defining a right of common (i) we had occasion to distinguish it from an easement, and therein partially to exhibit the nature of an easement, which II. Easements. is the next kind of incorporeal hereditament that we have to consider. When the owner of one tenement called the dominant tenement has a right to compel the owner of *another called the servient tenement to [*33] permit to be done or refrain from doing something which as owner of his tenement he would otherwise have been entitled to restrain or to do respectively, together with (in those cases where such further right exists) power to compel him to do those things which may be necessary for the convenient enjoyment of the right claimed, such a right is called an easement (k).

Easements according to Roman law.

Roman law distinguished easements into two classes, rural and urban, placing in the former class the rights of way and water, and in the latter those rights which are connected with the convenient enjoyment of buildings, the right of support by a neighbour's wall, either by resting a building thereon or inserting a beam into it, that of emptying a gutter into a neighbour's drain, and the right of light and air, or the prevention of building by a neighbour so as to obstruct light and air (?). These and a few other analogous rights have been adopted by English law. It is, however, a principle of law that a novel burden bearing the character of an easement cannot be imposed upon land so as to bind every owner into whose possession it may come (m).

Conditions istence of an easement.

In order to constitute a valid easement of a kind which the law recognises, there must exist the two tenements, the dominant and the servient, and besides this there are other conditions which must be observed. An necessary to ex- easement must be limited in extent, and must be in some way for the benefit of the alleged dominant tenement, and not for some general benefit of its owner (n). Thus a claim to discharge the foul water of a mill into an adjoining brook may be a good easement appurtenant to the *mill (0), but a claim by the owner of a house to discharge foul [*34] water simpliciter could not be claimed as an easement appurtenant to the house, nor could right of way in Kent be claimed as an easement appur

(h) See the General Inclosure Act, 41 Geo. 3, c. 109, amended by the following acts, 1 & 2 Geo. 4, c. 23; 3 & 4 Will. 4, c. 87; 3 & 4 Vict. c. 41; 8 & 9 Vict. c. 118; 9 & 10 Vict. c. 70; 10 & 11 Vict. c. 111; 11 & 12 Vict. c. 99; 12 & 13 Vict. c. 83; 14 & 15 Vict. c. 53; 15 & 16 Vict. cc. 2. 79; 17 & 18 Vict. c. 97; 20 & 21 Vict. c. 31; 21 & 22 Vict. c. 53; 22 & 23 Vict. c. 43; as to the right of allottees under these acts, see Roberts v. Haines, 6 E. & B. 643; Wakefield v. Duke of Buccleugh, L. R. 4 Eq. 613.

(1) See ante, p. 21.

(k) See ante, pp. 21, 22.

(2) Dig. viii. 2, 3; Inst. lib. ii. tit. 3, Servitutes.

(m) Ackroyd v. Smith, 10 C. B. 164; Keppel v. Bailey, 2 M. & K. 517; Murgatroyd v. Robinson, 7 E. & B. 391; and see Hill v. Tupper, 2 N. R. 201.

(n) Ackroyd v. Smith, 10 C. B. 164; Clayton v. Corby, 5 Q. B. 415; Bailey v. Stephens, 12 C. B. N. S. 91.

(0) Baxendale v. M'Murray, L. R. 2 Ch.

790.

tenant to an estate in Northumberland. Such claims, if made at all, must be supported by a title deduced in a regular way from a grant to a person and his heirs (p); they would not pass as appurtenances of any alleged dominant tenement, or under any deed unless expressly conveyed.

Among the principal easements which have the sanction of time and are allowed by law, are the following:-The right to water, the right to light and

Easements enumerated.

air, the right of way, right to the natural support of land, the right

to the support of buildings by adjacent land, and in some exceptional cases to such support by adjacent buildings, the right to have party walls and fences kept in repair, and the right to commit nuisances with impunity. In addition to these there are a few others to be occasionally found which have been established by long custom, and, where they exist, could not now be disputed, such as the right to bury the dead in a particular vault (q); but it is conceived such unusual rights could not now be created.

All easements are created by grant from the owner of the servient to the owner of the dominant tenement, express, implied, or presumed by law, or by How created. reservation, express or implied, out of a grant of the servient tenement (r). (207) Express grants or reservations must be by *deed, [* 35] in order to create a legal right to the easement (r), though equity will, where valuable consideration has been given, and great injustice would otherwise ensue, interfere and protect the enjoyment of the easement (s). An

(p) Bailey v. Stephens, 12 C. B. N. S. 91; as to what rights may be thus held under a grant by a man and his heirs, without reference to the possession of any particular land, see Sir F. Barrington's case, 8 Rep. 136; Liford's case, 11 lb. 466; Thomas v. Sewell, Vaugh. 351; Muskett v. Hill, 5 Bing. N. C. 694. It seems such a right could not be prescribed for under the Prescription Act. See Upton v. Williams, 6 M. & W. 543; Gale on Easements, pp 10, 13.

(q) Dauney v. Dee, Cro. Jac. 606; Bryan v. Whistler, 8 B. & C. 288: s. c. 2 Man. & Ry. 318.

(r) Some easements which are neither par

cel nor issuing out of the land, such as a
right of way, cannot strictly be reserved.
Wallis v. Harrison, 11 L. J. Exch. 440.
(r) Wood v. Leadbitter, 13 M. & W. 838;
Hewlins v. Shippam, 5 B. & C. 221.

(8) Duke of Devonshire v. Eglin, 14 Beav. 530; Powell v. Thomas, 6 Hare. 300; it seems that a court of equity will interfere to prevent injustice, where a person has allowed expenditure to be incurred which would be obviously useless without his consent to an easement over his land. Clavering's case, cited 5 Ves. 690; and see Laird v. Birken head Railway Co., John. 500.

(207) In this country a right to an easement is sometimes created or given by deed. Knight v. Dyer, 57 Me. 174; Fuhr v. Dean, 26 Mis. 116.

Twenty years is the usual time required to acquire a right to an easement by prescription or adverse enjoyment. Carlisle v. Cooper, 4 C. E. Green (N. J.), 256; Stearns v. Janes, 12 Allen (Mass.), 582; White v. Chapin, id. 516; Cherry v. Stein, 11 Md. 1; Hammond v. Zehner, 21 N. Y. (7 Smith). 118; Jones v. Crow, 32 Penn. St. 398; Mebam v. Patrick, 1 Jones' Law (N. C.), 23; Esling v. Williams, 10 Penn. St. 126; Watkins v. Peck, 13 N. H. 360.

A man can have no easement in his own land. Brakely v. Sharp, 1 Stockt. (N. J.) 9; McTavish v. Carroll, 7 Md. 352; Carbrey v. Willis, 7 Allen (Mass.), 364.

One having an easement in the lands of another is bound so to use it as not to unnecessarily injure the owner's right. Kaler v. Beaman, 49 Me. 207.

A covenant restricting the use of lands in favor or on account of other lands, creates an easement, and makes one tenement servient and the other dominant; and this without regard to any priority or connection of title or estate in the two parcels, or their owners. Gibert v. Peteler, 38 Barb. 488; 38 N. Y. (11 Tiff.) 165; 6 Trans. App. 329.

The right to overflow the lands of another is an easement, and the title to do so must be shown by actual grant, by deed, or by prescription. Snowden v. Wilas, 19 Ind. 10.

The public cannot acquire an easement by prescription; a prescription supposes a grant, and in the case of the public there can be no grantee. Curtis v. Keesler, 14 Barb. 511, 521; Perley v. Langley, 7 N. H. 233.

easement is created by an implied grant in cases where the two tenements being held by one owner are dealt with by him so as to sever in part the inheritance, and when the intention of the parties would be frustrated unless the easement were granted. Thus, if a man sells and conveys a piece of land surrounded by other land belonging to himself, by implication he grants also a right of way over his own land to that sold (t). The law implies that by such a grant to a purchaser conceditur et id sine quá res ipsa haberi, non potest, so when mines or trees are sold, the power of entry to dig shafts or carry away the timber is by implication granted (u). For a similar reason an easement may by implication be reserved to a vendor or grantor of the servient tenement. Thus, if a man excepts out of a grant all mines and minerals (x), he excepts also the right of going upon the land and making *shafts and erecting engines. But there is considerable difference between the case of [*36] implied grant and that of implied reservation. In the former case the law will construe the implied grant in a liberal manner, so as to include all those continuous and apparent easements which have in fact existed and been enjoyed by the previous owner for the benefit of the tenement granted, and which though not absolutely necessary to the enjoyment of it, are yet necessary for the complete and comfortable enjoyment in the manner in which it has been previously used (y): but an implied reservation will only extend to cases of absolute necessity, because the principle that a man may not derogate from his own grant must not be infringed except in cases of absolute necessity (z); and if the grant be made for a particular purpose, the grantor is bound not to do anything that will prevent the land from being used for that purpose (a).

A distinction is also taken between those easements which are apparent and continuous and those which are discontinuous, the construction of a grant being more readily extended, so as to create by implication of grant or reservation the former than the latter. As examples of the former kind, [*37] we may mention right to light and air, *or a drain through the servient tenement, and of the latter the right to use a pump (b). Cases often arise between two grantees of severed tenements from the same grantor under grants

(t) Plowd. 16 a; Pomfret v. Ricroft, 1 Saund. 322; Hinchliffe v. Earl Kinnoul, 5 Bing. N. C. 1, 24; an easement of necessity, such as that mentioned, can only arise by express or implied grant. Thus where closes A. and B., being held by the same owners, escheat to different lords, a way of necessity to close B. over A. will not arise. See Proctor v. Hodgson, 10 Exch. 624.

(u) Liford's case, 11 Rep. 25 a; Darcy v. Askwith, Hob. 234; Dand v. Kingscote, 6 M. & W. 174, 196; Swansborough v. "Coventry, 9 Bing. 305; Elliot v. North Eastern Railway Co., 10 H. L. 333; Rowbotham v. Wilson, 8 H. L. 348.

(x) Shep. Touch. 160; 1 Wms. Saund. 323; 2 Roll. Abr. tit. Graunts; Clark v. Cogge, 'Cro. Jac. 170

(y) Nicholas v. Chamberlaine, Cro. Jac. 121; Coppy v. I. de B., 11 Hen. 7, 25, pl. 6; Hinchliffe v. Earl of Kinnoul, 5 Bing. N. C. 1; Ewart v. Cochrane, 4 H. L. 117; and see as to what rights in the nature of easements will

or will not pass under the word appurte nances or pertinents, Worthington v. Gimson, 29 L. J. Q. B. 116; Baird v. Fortune, 7 Jur. N. S. 926; and ante, p. 17.

(z) Tenant v. Goldwin, 2 Ld. Raym. 1093; Suffield v. Brown, 33 L. J. Ch. 249, s. c. 3 N. R. 340, in which case L. C. Westbury dissented from Pyer v. Carter, 1 H. & N. 916; see also Elliot v. North Eastern Railway Co., 10 H. L. 333; White v. Bass, 7 H. & N. 722; and the opinion of V. C. Kindersley in Curriers' Co. v. Corbett, 2 Dr. & Sm. 355 (which case was reversed on appeal but upon another point); Crossley v. Lightowler, L. R. 3 Eq. 279, s. c. 2 Ch. 478; Morland v. Cook, L. R. 6 Eq. 252.

(a) Caledonian Railway Co. v. Sprot, 2 Macq. 449; Elliot v. North Eastern Railway Co., ubi sup.

(b) See Nicholas v. Chamberlaine, Cro. Jac. 121; Polden v. Bastard, 1 N. R. 356, s. c. 32 L. J. Q. B. 372; Glave v. Hardiny, 27 L. J. Exch. 286.

made contemporaneously; the rule there seems to be to construe them as if the grant of the alleged dominant tenement was made first (c).

The third mode in which the right to an easement may be acquired, is that in which the law presumes a grant to have been made, although there is no evidence to show it, other than long usage and enjoyment of the right claimed. Of this we shall speak more hereafter in explaining title by prescription, a title common to many different kinds of incorporeal hereditaments (d).

Having said so much as to the mode by which easements may be acquired, we are next to explain the nature and legal incidents peculiar to those different kinds of easements which are most commonly found, and have been above enumerated.

Right of water.

First, as to the Right of Water. Of this right there are two kinds: one where the water flows in a natural course, and the other where it flows through an artificial drain or canal. The former kind, since water naturá suá descendit, and has its origin, as it were, from the creation (e), stands upon a somewhat different footing from *the majority of easements. [*38] Every proprietor must necessarily have been in long enjoyment, and is entitled to have the full benefit of it in the state in which it exists naturally, uncontaminated and substantially undiminished in quantity by the acts of the owners of the land from which it flows (ƒ). (208) He may apply it to any pur

(c) Swansborough v. Coventry, 9 Bing. 305; Pinnington v. Galland, 9 Exch. 1.

(d) Since the Prescription Act, 2 & 3 Will. 4, c. 71, those rights which are within the operation of that act, although they previously entirely depended upon the presumption of a grant, now depend upon that enactment, and are matters juris positivi. Per Lord Westbury, in Tapling v. Jones, 11 H. L. 290, 304.

(e) See Sury v. Pigot, Poph. 166; Wood v. Waud, 3 Exch. 775; the soil of the alveus of a non-navigable river belongs to the riparian owners in severalty, the share of each extending usque ad medium filum aquæ. Bickett v. Morris, L. R. 1 H. L. S. C. 47; Berridge v. Ward, 10 C. B. N. S. 400; where the question concerned the soil of a road; and see Crossley

v. Lightowler, L. R. 3 Eq. 279, s. c. 2 Ch. 478, as extending to the case of a stream. The property in such soil must, however, be so enjoyed as not to interfere with the flow of the stream; and an encroachment upon the alveus may be complained of without the necessity of proving damage has been sustained, or is likely to be sustained. Bickett v. Morris, ubi sup.

(f) Goldsmid v. The Tunbridge Commissioners, Law R. 1 Ch. 349; Stockport Waterworks v. Potter, 3 H. & C. 300, s. c. 32 L. J. Exch. 9; Laing v. Whaley, 3 H. & N. 675, 901; Manchester, &c., Railway Co. v. Worksop Board, 23 Beav. 198; and the right extends to prevent a person taking the water at the spring head. Dudden v. Clutton Union, 1 H. & N. 627; see, however, Rawstron v. Taylor, 11 Exch. 369.

(208) The owner of land through which a stream of water naturally flows has a right to its use; but it is a right of use only; and where he detains the water in a dam for several hours daily, thereby depriving the owners of factories or mills on the stream below of the use of it during that time, and then lets it off in unusual quantities so that such owners below cannot use it to advantage while passing, this is a good ground of action. Pollitt v. Long, 58 Barb. 20; Merritt v. Brinkerhoof, 17 Johns. 306; Clinton v. Myers, 46 N. Y. (1 Sick.) 511; Brace v. Yale, 97 Mass. 18; 10 Allen (Mass.), 441.

The detention of water in a reasonable or usual manner is not actionable, although it may cause an injury to the owners below. Springfield v. Harris, 4 Allen (Mass.), 494; Gould v. Boston Duck Co., 13 Gray (Mass.), 443. The use of a stream must be such as will not cause a needless injury to the owners below. Throwing tan-bark into a stream in such quantities as to clog it, and to injure the mills below, is actionable. Honsee v. Hammond, 39 Barb. 89; Thomas v. Brackney, 17 id. 654. So of throwing other materials or substances which obstruct the stream and impair the use of the mills, etc., below. O'Riley v. McChesney, 3 Lans. 278; Veazie v. Dwinel, 50 Me. 479; Gerrish v. Brown, 51 id. 256; Jacobs v. Allard, 42 Vt. 303; 1 Am. R. 331.

Any use of the water of a stream which so corrupts it that it cannot be used by the owners below, or so as materially to injure the quality of the water to the detriment of such

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