This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
98. Washburn, Basements, (4th Ed.) 257; Moore v. Crose, 43 lixl. 30; Whaley v. Stevens, 27 S. Car, 549, 1 S. E. 145; Fisher v. Fair, 34 S.car. 203, 14 L.r. A. 333, 13 S. 10. 470.
A privilege in gross of fishing or taking minerals on the land of B. There is in England a dictum in favor of the view that an easement may thus appertain to an incorporeal hereditament,98a and also a dictum to the contrary.98b
The latter view have been suggested as follows: "If such right be an inheritable estate, how will the heirs take? In severalty, in joint tenancy, coparcenary, or as tenants in common? If not in severalty, how can their interests be severed? If it be assignable, what limit can be placed on the power of alienation? To whom and to how many may it be transferred?"4 Nevertheless it is somewhat difficult to see why, if, as appears to be the case,5 a profit in gross is capable of passing by voluntary transfer and by descent, an easement in gross should not be so capable. The courts could effectually protect the owner of the servient tenement against an assignment to such a number of persons as unduly to increase the burden thereon, and the heirs might well be regarded as holding in that form of cotenancy which exists in case of the descent of land itself.
- Transferability of easement. An easement in gross has occasionally been regarded as susceptible of voluntary transfer,99 and as passing by descent,1 provided as least the language used in its creation shows an intention to that effect.2 But more frequently such an easement has been regarded as so purely personal to the original grantee as to be incapable of voluntary or involuntary transfer.3 Considerations in favor of
98a. Hanbury v. Jenkins, L. R. 2 Ch. 401. There is an assumption to this effect by Sharswood, J., in Tinicum Fishing Co. v. Carter, 61 Pa. St. 21, 100 Am. Dec. 597.
98b. Atty. Gen. v. Copeland, L. R. (1901) 2 K. B. 101. See Gale, Easements (8th Ed.) 12; Goddard, Easements (6th Ed.) 12.
99. Goodrich v. Burbank, 12 Allen (Mass.) 459, 90 Am. Dec. 161; French v. Morris, 101 Mass. 68; Amidon v. Harris, 113 Mass. 59; Pinkum v. Eau Claire, 81 Wis. 301, 51 N. W. 550; Poull v. Mock-ley, 33 Wis. 482; Percival v. Williams, 82 Vt. 531, 74 Atl. 321. See Standard Oil Co. v. Buchi, 72 N. J. Eq. 492, 66 Atl. 427.
In Engel v. Ayer, 85 Me. 448, 27 Atl. 352, such a right was regarded as transferable, apparently on the theory that, because it involved a possibility, in the particular case, of monopolizing a large part of the servient tenement and was pecuniarily profitable, it was equivalent to a profit a prendre. This view is adopted from Washburn,
Easements (4th Ed.) 13. The same view is asserted, apparently, by Walworth Ch., in Post v. Pear-sail, 22 Wend. 425; Sharswood J., in Tinicum Fishing Co. v. Carter, 61 Pa. St. at p. 40.
1. Goodrich v. Burbank, 12 Allen (Mass.) 459, 90 Am. Dec. 161; Ring v. Walker, 87 Me. 550, 33 Atl. 174; Percival v. Williams, 82 Vt. 531, 74 Atl. 321.
2. In Field v. Morris, 88 Ark. 148, 114 S. W. 2061 Wilder v. Wheeler, 60 N. H. 351, it was held that it was not transferable because the language used in its creation did not show an intention to that effect. And in Lynch v. White, 85 Conn. 545, 84 Atl. 326, it was held that, there being no words of limitation extending it to heirs, and no facts showing such an intention, it endured only for the life of the person in favor of whom it was created.
3. Freed v. Morris, 88 Ark. 148, 114 S. W. 206; Wagner v. Hanna, 38 Cal. Ill, 99 Am. Dec. 354; Hall v. Armstrong, 53 Conn. 554, 4 Atl.
An appurtenant easement is regarded as so closely annexed to the dominant tenement that it passes prima facie upon a conveyance of such tenement without express mention,6 and regardless of whether the
113 (dictum); Louisville etc. R. Co. v. Koelle, 104 111. 455; Hoosier Stone Co. v. Malott, 130 Ind. 121, 29 N. E. 412, (dictum); Winston v. Johnson, 42 Minn. 398, 45 N. W. 958 (dictum); Tinicum Fishing Co. v. Carter, 61 Pa. 21, 100 Am. Dec. 597; Comm. v. Zimmerman, 56 Pa. Super Ct. 311; Cadwalader v. Bailey, 17 R. I. 495, 14 L. R. A. 300, 23 Atl. 20; Fisher v. Fair, 34 S. Car. 203, 13 S. E. 470; Kershaw v. Burns, 91 S. Car. 129, 74 S. E. 378; Salem Capital Flour Mills v. Stayton Water Ditch & Canal Co. (C. C.) 33 Fed. 140.
4. Boatman v. Lasley, 23 Ohio St. 614, per Mcllvaine, J.
5. Post, Sec. 382, note 19.
6. Lide v. Hadley, 36 Ala. 627, 76 Am. Dec. 338; Quinlan v. Noble, 75 Cal. 250, 17 Pac. 69; Goodwin v. Bragaw, 87 Conn. 31, 86 Atl. 668; Taylor v. Dyches, 69 Ga. 455; Tinker v. Forbes, 136 I11. 221, 26 N. E. 503; Moore v. Crose, 43 Ind. 30; Cassens v. Meyer, 154 Iowa, 187, 134 N. W. 543 (warranty deed); Wendell v. Heim, 87 Kan. 136, 123 Pac. 869; Hammond v. Eads, 146 Ky. 162, 142 S. W. 379; Dority v. Dunning, 78 Me. 381, 6 Atl. 6; Douglass v. Riggin, 123 Md. 18, 90 Atl. 1000; Barnes v. Lloyd, 112 Mass. 224; Willets v. Langhaar, 212 Mass. 573, 99 N. E. 466; Dulce Realty Co. v. Stead Realty Co., 245 Mo. 417, 151 S.
Since an easement appurtenant is intended to be exercised only for the benefit of and in connection with the dominant tenement, it cannot be separated therefrom by its transfer to a person other than the owner of such tenement.9 Such a separation would involve its conversion into an easement in gross.
- Duration of easement. An appurtenant easement usually exists in favor of one having an estate in fee simple in the dominant tenement, but in so far as the easement is intended to endure so long only as the purpose of its creation can be regarded as still existent,10 the possible duration of the easement corresponds to that of an estate in fee determinable rather than to that of an estate in fee simple. And occas-sionally the language of the grant creating an easement expressly provides that it is to endure only