By the term easement we convey the idea that one person possesses land and another person out of the possession has the right to make a certain use of the land, as to have a roadway or path over it or else to have the owner refrain from making a use of it. It is to be regarded as a permanent interest; interests of a temporary character by mere permission are called "licenses."
Easements are either positive or negative, appendant or in gross.
The first division of easements may be made into those which are positive and those which are negative. A positive easement is a right which one has to do something upon the land of another, as to go across it, to flood it with water, etc. A negative easement is the right to compel the owner to refrain from making a certain use of it, thus the right which one has to have light and afr over the land of another is a negative easement. Easements of light and air in this country can arise only by express grant and not by prescription as in England.
Easements are also divided into those which are appendant and those which are in gross. An appendant easement is one which goes with an estate irrespective of the ownership and exists in favor of that estate over a neighboring estate. The benefited estate is called the "dominant estate," and the burdened estate is called the "servient estate." An easement in gross is one possessed by a certain person irrespective of his ownership of any estate. It is purely personal and cannot be assigned.91 Easements in gross are uncommon.
Easements may be acquired by grant or by prescription.
An easement may arise in the first place by agreement as where it is contained in a deed or any form of grant, or it may arise by long continued usage, in which case we say that it arises by "prescription." To acquire an easement by prescription there must be a claim of the right continued for twenty years and the enjoyment of the easement must be continuous and adverse, that is, claimed as a right and not as a mere favor, and must be open and notorious.
An easement sometimes is said to arise not by express grant or by prescription but impliedly from the circumstances. The chief implied easement is an "easement of necessity," existing where land is granted with no outlet except over the land of the grantor. As long as this condition of affairs continues an easement of necessitv
91. Knecken v. Voltz, 110 111. 264.
exists. But no easement can ever so arise over the land of a stranger.92
We see herein how an easement differs from a license. An easement is claimed as of right - an estate irrevocable and vested, the enjoyment of which, when the right is established, the court will protect, as any other estate, while a license exists by consent of, or contract with, the recognized owner, not in opposition to the owner's estate, but by his consent.
The owner of the easement must use it only for the purposes for which it was granted or acquired. He cannot change Or increase the burden.
The easement must be used for the purposes acquired. It cannot be turned to other purposes.
Easements may be transferred by the transfer of the land involved.
We have seen that easements are called appendant when they are in favor of one estate, called the dominant estate, against another estate, called the servient estate, and that being incidental to the use of the land may pass with a transfer of the land without any express statement in that respect, although the deed sometimes does provide that all easements, ways, etc., are to pass with the grant. Appendant easements cannot be separated from the estate and therefore cannot be transferred independently of it.
Easements are lost through abandonment, by express release and by change of condition making them necessary.
92. Collins v. Prentiss, 15 Conn. 39.
A person having an easement may abandon it. We cannot say that a mere disuse of an easement is an abandonment of it but it would be evidence thereof. An easement may be relinquished by express agreement. So by change of circumstances the easement may become no longer of necessity or convenience and thereby be lost, as where buildings are torn down, etc., or where a roadway is opened up to which there is convenient access, etc.
A profit a prendre is a right to substance of another's land as the right to take coal, wood, fish or turf.
An easement is a mere right to use the land of another for some purpose. But there may be a right to take something from the land of another. These rights are not common in this day, but in English history a peasant or land-holder might have the right to go upon the land of his lord and take wood, coal, etc., and this right was called a "Profit a prendre," or a Common. There were four chief sorts of commons; first, common of estovers, or the right to take fuel; commons of pasture, or the right to pasture one's cattle; commons of turbary or the right to take turf; commons of piscary or the right to fish. These commons were acquired by grant or prescription and perhaps we need not examine them more at length.93