221. Ey Prescription-easements may be acquired by prescription by adverse user continued for the time required by the statute of limitations.
At common law many easements were acquired by prescription,20 but it was held that prescription presumed a grant.21 The acquirement of easements by prescription is now superseded by the doctrine of the statute of limitations.22 To acquire an easement by prescription, it must have been exercised from time immemorial,23 but by the statute of limitations, 20 years is the time required, and in some states even a less period is provided by the statute.24 The character of the acts necessary for gaining an easement under the statute of limitations and by the doctrine of prescription are the same, and the term "prescription" is generally used to denote the former. The user must be uninterrupted25 and continuous, according to the nature
19 Thayer v. Payne, 2 Cusb. (Mass.) 327; Fyer v. Carter, 1 Hurl. & N. 91G; Dunklee v. Railroad Co., 24 N. H. 4S9; Seymour v. Lewis, 13 N. J. Eq. 439. But see Nicholas v. Chamberlain, Cro. Jac. 121; Johnson v. Jordan, 2 Mete. (Mass.) 234; Collier v. Pierce, 7 Gray (Mass.) Is; Carbrey v. Willis, 7 Allen (Mass.) 364; Randall v. Mclaughlin, 10 Allen (Mass.) 366; Buss v. Dyer, 125 Mass. 287; Butterworth v. Crawford, 46 N. Y. 349.
20 Cross v. Lewis, 2 Barn. & C. 686; Mayor of Kingston v. Horner, Cowp. 102.
21 Webb v. Bird, 13 C. B. (N. S.) 841; Mayor of Kingston v. Horner, Cowp. 102.
22 Claflin v. Railroad Co., 157 Mass. 489, 32 N. E. 659; Jones v. Crow, 32 Pa. St. 398; Ricard v. Williams, 7 Wheat. 59.
23 Melvin v. Whiting, 10 Pick. (Mass.) 295. See Mayor of Kingston v. Horner, Cowp. 102. And see Kent v. Waite, 10 Pick. (Mass.) 138. The term "prescription" is, however, often used when the statute of limitations is meant.
24 Sibley v. Ellis, 11 Gray (Mass.) 417; Carger v. Fee, 140 Ind. 572, 39 N.
E. 93; Boyd v. Woolwlne (W. Va.) 21 S. E. 1020; 1 Stim. Am. St. Law, § 2281.
25 Pollard v. Barnes, 2 Cush. (Mass.) 191; Livett v. Wilson, 3 Bing. 115. A
§ 221) of the easement.26 The statute does not begin to run while the owner of the servient estate is under disability.27 So the period of limitation does not begin against a reversioner or remainder-man until he is entitled to possession of the estate.28 The use of the easement must be under an adverse claim of right, though color of title is not necessary.29 Such use cannot be adverse if it is begun with the permission of the owner of the servient estate,30 or by his license.31 User will not be sufficient to establish the right if it is secret.32 The period of adverse occupancy required by the statute need not be all by one person, but may be by a number if they are in privity.33 It should be observed that the public cannot acquire an easement by right of flowage may be acquired by prescription. Williams v. Barber (Mich.) 62 N. W. 155.
26 Bodfish v. Bodfish, 105 Mass. 317; Cox v. Forrest, 60 Md. 74; Iselin v. Starin, 144 N. Y. 453, 39 N. E. 488; Humphreys v. Blasingame, 104 Cal. 40, 87 Pac. 804; Dalton v. Angus, 6 App. Cas. 740, affirming Angus v. Dalton, 4 Q. B. Div. 162; Dare v. Heathcote, 25 Law J. Exch. 245. For user held insufficient to establish an easement across a railroad company's right of way, see Andries v. Railway Co. (Mich.) 63 N. W. 526. And for acts held insufficient to create easements in water by prescription, see Green Bay & M. Canal Co. v. Kaukauna Water Power Co., 90 Wis. 370, 61 N. W. 1121; Mason v. Horton, 67 Vt 266, 31 Atl. 291.
27 Reimer v. Stuber, 20 Pa. St. 458. Disability arising after the user is begun does not interrupt the acquisition of the right. Tracy v. Atherton, 36 Vt. 503; Wallace v. Fletcher, 30 N. H. 434. Contra, Lamb v. Crosland, 4 Rich. Law (S. C.) 536.
28 Schenley v. Com., 36 Pa. St. 29; Pentland v. Keep, 41 Wis. 490.
29 Burbank v. Fay, 65 N. Y. 57; Bachelder v. Wakefield, 8 Cush. (Mass.) 243; Blanchard v. Moulton, 63 Me. 434; Richard v. Hupp (Cal.) 37 Pac. 920. And see post, p. 460.
30 Smith v. Miller, 11 Gray (Mass.) 145; Perrin v. Garfield, 37 Vt. 304; Caiger v. Fee (Ind. Sup.) 39 N. E. 93. See Atkins v. Bordman, 2 Mete. (Mass.) 457. That no easement is acquired by the use of a way maintained by the owner of the land for his own convenience, see Wood v. Reed (Sup.) 30 N. Y. Supp. 112.
31 Wiseman v. Lucksinger, 84 N. Y. 31; Cronkhite v. Cronkhite, 94 N. Y. 323; Johnson v. Skillman, 29 Minn. 95, 12 N. W. 149; Colchester v. Roberts, 4 Mees. & W. 769.
32 Cook v. Gammon, 93 Ga. 298, 20 S. E. 332; Daniel v. North, 11 East, 372. But when the user is open and uninterrupted, the servient owner is charged with notice. Bushey v. Santiff, 86 Hun, 384, 33 N. Y. Supp. 473.
33 Melvin v. Whiting, 13 Pick. (Mass.) 184; Hill v. Crosby, 2 Pick. (Mass.) 466.
Reai. Prop.-28 prescription,34 though a dedication may be presumed from use by the public.35
222. The principal classifications of easements are the following:
(a) Continuous and discontinuous.
(b) Appendant or appurtenant and in gross.
(c) Negative and affirmative.
(d) Natural and conventional.
There are a number of classifications of easements, which, though they have no great value in law, are often met with in the books, and therefore will be briefly mentioned here. The first of these is the distinction between continuous and discontinuous easements, which arises from the nature of the use of the easement.36 An example of the former is a right to lateral or subjacent support,37 while a right of way is an instance of a discontinuous easement, since the right is only exercised at intervals.38 Another classification of easements is that which divides them into easements appendant or appurtenant and easements in gross.39 The former class comprise easements proper, which cannot be severed from the tenement with which they are connected; that is, an easement belongs to an estate and not to a person. But easements in gross are not connected with any parcel of land, and exist in a person or in the public.40 Highways are easements of this kind, and there may be