218. An easement is a right in the owner of one parcel of land, by reason of such ownership, to use the land of another foi a special purpose not inconsistent with the general property in the latter.4
Easements are rights which one man may exercise over the land of another.5 These rights can exist only in connection with some other land called the dominant estate, while the land over which the right is exercised is called the servient estate. Looked at from the standpoint of the owner of the dominant estate, the right is an easement, but from the standpoint of the servient estate it is a servitude. According to Mr. Washburn:6 "The essential qualities of easements are: (1) They are incorporeal; (2) they are imposed on corporeal property, and not upon the owner thereof; (3) they confer no right to a participation in the profits arising from such property; (4) they are imposed for the benefit of corporeal property; (5) there must be two tenements,-the dominant, to which the right belongs; and the servient, upon which the obligation rests."
1 Drake v. Wells, 11 Allen (Mass.) 141; Huff v. Mccauley, 53 Pa, St. 200.
2 1 Washb. Real Prop. (5th Ed.) 37. 3 2 Comm. 21.
4 2 Washb. Real Prop. 25.
5 Wolfe v. Frost, 4 Sandf. Ch. (N. Y.) 72; Wagner v. Hanna, 38 Cal. Ill; Harrison v. Boring, 44 Tex. 255; Perrin v. Garfield, 37 Vt. 304.
It is thus seen that easements differ from licenses principally in their duration, for licenses are generally only to do a number of specific acts on the land of the licensor. So, too, licenses are, as we have seen,7 for the most part, revocable, while easements are not.8 Easements differ also from commons or profits a prendre, which will be discussed later in this chapter,9 in that an easement never gives the right to take anything from the corpus of the servient estate.10
219. Easements are created
(a) By grant (p. 350).
(b) By prescription (p. 352).
220. By Grant-easements may be created by grant, which includes easements arising under covenants and by implied grants. The grant of an easement must be in writing.
Easements may be created by grants, like other interests hi land.11 They need not be created in fee, but may be for a limited term.12
6 Washb. Easem. (4th Ed.) 3.
7 Ante, p. 167.
8 Hills v. Miller, 8 Paige (N. Y.) 254; Ex parte Coburn, 1 Cow. (N. T.) 568; Foster v. Browning, 4 R. I. 47; Wallis v. Harrison, 4 Mees. & W. 538.
9 Post, p. 373.
10 Huntington v. Asher, 90 N. Y. 604; Post v. Pearsall, 22 Wend. (N. Y.) 425; Huff v. Mecauley, 53 Pa. St. 206.
11 Cronkhite v. Cronkhite, 94 N. Y. 323; Wiseman v. Lueksinger, 84 N. Y. 814; Forbes v. Balenseifer, 74 111. 183; Duinneen v. Rich, 22 Wis. 550.
12 Curtis v. Gardner, 13 Mete. (Mass.) 457; Jamaica Pond Aqueduct Corp. v. Chandler, 9 Allen (Mass.)
They cannot be created by parol, and an attempt to do so would give only a license, which, would be revocable.13 Easements may, however, be either granted or reserved.14 When ah easement is appurtenant to an estate, it passes by a grant of the dominant estate, without express mention.15 Easements are sometimes conveyed by implication. These are called easements of necessity, and exist whenever they are necessary to the enjoyment of the estate conveyed.16 Easements are often raised by covenants. A number of lots are sometimes conveyed with covenants by the grantee of each lot that he will not build within a certain distance of the street. Such covenants are held to impose a servitude on each lot in favor of the others.17 In equity, also, there may be easements between two parcels of land owned by the same person, although this is not possible at law.18 For instance, an owner of two lots may construct a drain for one of them across the other, and then sell either of them. In such case, if he transfer the dominant estate, the right to drain across the remaining lot will continue, and the same result may obtain if he transfers the servient estate to one who has knowledge of the existence of the drain, and the easement is necessary to the enjoyment of the other lot.19 Easements of this character and those created by covenants are often called equitable easements.
13 Taylor v. Millard, 118 N. Y. 244, 23 N. E. 376; Wiseman v. Lucksinger, 84 N. Y. 31; Cronkhite v. Cronkhite, 94 N. Y. 323; Tinker v. Forbes, 136 111. 221, 26 N. E. 503; Minneapolis W. Ry. Co. v. Minneapolis & St. L. Ry. Co., 58 Minn. 128, 59 N. W 983. But see Wilkinson v. Suplee, 166 Pa. St. 315, 31 Atl. 36.
14 Bowen v. Conner, 6 Cusli. (Mass.) 132; Inhabitants of Wintbrop v. Fairbanks, 41 Me. 307; Emerson v. Mooney, 50 N. H. 315; Asbcroft v. Railroad Co., 126 Mass. 196; Jones v. Adams, 162 Mass. 224, 38 N. E. 437; Sullivan v. Eddy, 154 111. 199, 40 N. E. 4S2. Tbere must be a sufficient description of the easement. Wells v. Tolman, 88 Hun, 438, 34 N. Y. Supp. 840; Nunnelly v. Iron Co., 94 Tenn. 397, 29 S. W. 361. Cf. Borst v. Empie, 5 N. Y. 33.
15 Underwood v. Carney, 1 Cush. (Mass.) 285; Morgan v. Mason, 20 Ohio, 402. Cf. Grant v. Chase, 17 Mass. 443.
16 Boland v. St. John's Schools, 163 Mass. 229, 39 N. E. 1035; Atkins v. Bordman, 2 Mete. (Mass.) 457; Nichols v. Luce, 24 Pick (Mass.) 102; Weynand v. Lutz (Tex. Civ. App.) 29 S. W. 1097. See post, p. 359.
17 Tulk v. Moxhay, 2 Phil. Ch. 774; Tallmadge v. Bank, 26 N. Y. 105; Win-field v. Henning, 21 N. J. Eq. 188; Peck v. Conway, 119 Mass. 546. So an agreement to clean and repair a water course which has been granted through covenantor's land was held to run with the land. Holmes v. Buckley, Prec. Ch. 39. But see Keates v. Lyon, 4 Ch. App. 218; Renals v. Cowlishaw, 11 Ch. Div. 866; Haywood v. Building Soc, 8 Q. B. Div. 403; Sharp v. Ropes, 110 Mass. 3S1; Norcross v. James, 140 Mass. 1S8, 2 N. E. 940.
18 Johnson v. Jordan, 2 Mete. (Mass.) 234; Lampman v. Milks, 21 N. Y. 505; Watts v. Kelson, 6 Ch. App. 166. But see Suffield v. Brown, 4 De Gex, J. & S. 185; Thomson v. Waterlow, L. R. 6 Eq. 36.