"Any interest" in lands includes easements and incorporeal hereditaments. If an easement passes under a conveyance of specific realty as appurtenant thereto, no separate written contract for the enjoyment thereof is necessary.1 If an easement does not pass as appurtenant to realty conveyed, a contract to create or to convey an easement in realty,2 such as a contract creating a right to use water taken from the land of another,3 or a contract creating the right to carry water across the lands of another,4 or to overflow the land of another,5 or to attach booms to trees on the land of another,6 or a contract creating a right of way over the land of another,7 or a contract to open a street extending beyond the realty conveyed by promisor,8 or through the realty in question,9 are within this clause of the statute. Thus a contract whereby one railroad agrees to sell to another its road-bed, together with its rolling stock, is within the statute.10 However, it has been held that an oral contract to construct11 or to dedicate12 a street is not within the statute of frauds. A contract to construct a street if the promisee would buy lots in the promisor's land and erect a house thereon is looked on as a contract for work and labor.13 A parol dedication operates as a Common-Law conveyance to the public.14 While a contract to dig a well is per se a contract for work and labor,15 a contract to dig a well on the line between two adjoining tracts, each owner to have the right to use the well, is a contract for an easement and hence within the statute.16

Pac. 1076. But Welland v. Huber, 8 New 203, seems to be decided on the opposite principle.

2Mortiz v. Lavelle, 77 Cal. 10; 11 Am. St. Rep. 229; 18 Pac. 803; Gore v. McBrayer, 18 Cal. 583; Meylette v! Brennan, 20 Colo. 242; 38 Pac. 75; Meagher v. Reed, 14 Colo. 335; sub nomine, Reed v. Meagher, 9 L. R. A. 455; 24 Pac. 681; Murley v. Ennis, 2 Colo. 300; Hirbour v. Reeding, 3 Mont. 15; Welland v. Huber, 8 Nev. 203; Eberle v. Carmichael, 8 N. M. 696; 47 Pac. 717; affirming on rehearing, 8 X. M. 169; 42 Pac. 95; Raymond v. Johnson, 17 Wash. 232; 61 Am. St. Rep. 908; 49 Pac. 492.

3 Moore v. Hamerstag, 109 Cal. 122: 41 Pac. 805; Garthe v. Hart, 73 Cal. 541; 15 Pac. 93; Goller v. Fett, 30 Cal. 481; Reagan v. Mc-Kibben. 11 S. D. 270; 70 X. W. 943.

1 Noojin v. Cason, 124 Ala. 458; 27 So. 490.

2 Hodgkins v. Farrington, 150 Mass. 19; 15 Am. St. Rep. 168; 5 L.

R. A. 209; 22 N. E. 73; Foss v. Newbury, 20 Or. 257; 25 Pac. 669; Long v. Mayberry, 96 Tenn. 378; 36 S. W. 1040; Nunnelly v. Iron Co., 94 Tenn. 397; 28 L. R. A. 421; 29 S. W. 361.

3 Hayes v. Fine, 91 Cal. 391; 27 Pac. 772; Dorris v. Sullivan. 90 Cal. 279; 27 Pac. 216; McGinness v. Stanfield, 7 Ida. 23; 59 Pac. 936; Weare v. Chase, 93 Me. 264; 44 Atl. 900; Morse v. Wellesley, 156 Mass. 95; 30 N. E. 77.

4Deyo v. Ferris, 22 111. App. 154; Murray v. Gibson. 21 111. App. 488; New Iberia, etc., Co. v. Romero, 105 La. 439; 29 So. 876; Schultz v. Huffman, 127 Mich. 276; 86 X. W. 823; Pifer v. Brown, 43 W. Va. 412; 49 L. R. A. 497; 27 S. E. 399.

5 Wilmington, etc., Co. v. Evans, 166 111. 548; 46 X. E. 1083; New-comb v. Royoe, 42 Neb. 323; 60 X. W. 552; Harris v. Miller, Meigs (Tenn.) 158; 33 Am. Dec. 138.

6Smith v. Atkins, 110 Ky. 119; 53 L. R. A. 790; 60 S. W. 930.

A contract by the owner of realty by which he agrees not to make a specified use of certain realty is within the statute.17 On the other hand, a personal contract by an owner of realty not to carry on a certain kind of business on certain realty is not within the statute.18 If he were to dispose of all the realty owned by him, his contract not to engage in business would he just as binding as ever and just as important to the promisee. The distinction between these last two classes of cases is that in the first, the contract is primarily with reference to the use of the realty, while in the second, it is primarily with reference to the personal conduct of the promisor.

7 Phoenix Ins. Co. v. Haskett, 64 Kan. 93; 67 Pac. 446; Barnes v. Beverly (Ky.), 32 S. W. 174; Cole v. Hadley, 162 Mass. 579; 39 N. E. 279; Morse v. Wellesly, 156 Mass. 95; 30 N. E. 77. As the right of way of a railway. Pitkin v. R. R., 2 Barb. Ch. (N. Y.) 221; 47 Am. Dec. 320.

8 Hall v. Fisher, 126 N. C. 205; 35 S. E. 425.

9Richter v. Irwin, 28 Ind. 26.

10 Cumberland, etc., Ry. v. Ry., - Ky. -; 77 S. W. 690.

11 Drew v. Wiswall, 183 Mass. 554; 67 N. E. 666.

12 Mann v. Bergmann, 203 111. 406; 67 N. E. 814.

13 Drew v. Wiswell, 183 Mass. 554: 67 N. E. 666.

14 Mann v. Bergmann, 203 111. 406; 67 N. E. 814.

15 See Sec. 656.

16 Plunkett v. Meredith, - Ark. -; 77 S. W. 600.

17 Rice v. Roberts, 24 Wis. 461; 1 Am. Rep. 195. Thus a contract by A to build a warehouse on his own land and to allow B to store goods therein free of charge in consideration of B's agreeing never to construct a warehouse on his own land is within the statute. Clanton v. Scruggs, 95 Ala. 279; 10 So. 757. Contra, Ware v. Langmade, 9 Ohio C. C. 85; 6 Ohio C. D. 43, where a contract between adjoining owners of oil and gas lands not to drill within two hundred feet of the line between them was held not to be within the statute.