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 .
An easement involves primarily the privilege of doing a certain class of act on or to the detriment of another's land, or a right against another that he refrain from doing a certain class of act on or in connection with his own land, the holder of the easement having, as an integral part thereof, rights against the members of the community generally that they shall not interfere with the exercise or enjoyment of the easement.
An easement, it has been said, never involves any active duty upon the owner of the land subject to the easement, his duty being merely the passive one, either of not interfering with a certain class of acts by the holder of the easement, or of himself refraining from a certain class of acts.1 Occasionally, however, an interest analogous to an easement, involving a duly of an active character upon the owner of land, has been recognized, such an interest being sometimes referred to as a "spurious easement."
So there may be an active duty, in the nature of an ersement, to maintain a fence,2 and it seems that there may be imposed, upon the owner of land subject to an easement, an active duty to make repairs,3"4 though this is most unusual.5 In Massachusetts, there has even been recognized an obligation, not contractual in character, to contribute to the cost of the maintenance of a dam.6
Easements are sometimes divided into affirmative and negative. An affirmative easement is one which authorizes the doing of acts which, if no easement existed, would give rise to a right of action, while a negative easement is one the effect of which is not to authorize the doing of an act by the person entitled to the easement, but merely to preclude the owner of the land subject to the easement from the doing of an act which, if no easement existed, he would be entitled to do. In other words, an affirmative easement involves the creation of a privilege, while a negative easement involves the withdrawal of a privilege.7 As examples of affirmative easements may be mentioned a right of way, a right to discharge water on another's land, and a right to maintain an erection thereon, while a right to have light pass to one's building over another's land, and a right to have one's building supported by such land, may be mentioned as examples of negative easements. Affirmative easements are of much the more frequent occurrence.8
2. Post, Sec. 357.
3-4. Rider v. Smith, 3 Term. Rep. 766; 1 Wms. Saund. 322c; Gale, Easements (8th Ed.) 487.
5. Post, Sec. 370.
6. Whittenton Manufacturing
Are sometimes referred to as tenants in common of an easement, hut such an expression is inaccurate. If the right of user vested in one person is appurtenant to one tract, and the right of user vested in another person is appurtenant to another tract, there are two distinct rights of user, two easements, and not one easement. It is only when the two persons have an easement appurtenant to land of which they are tenants in common that they can, with any degree of accuracy, he said to he tenants in common of the easement.
Co. v. Staples, 164 Mass. 319, 29 L. R. A. 500, 41 N. E. 441, three judges dissenting. See the criticism of this case in 9 Harv. Law Rev. at p. 352.
7. See Professor Wesley N. Hloh-field's article, 27 Yale Daw Journal, at pp. 71, 72 in which the nature of an easement is well explained.
It is quite frequently stated that one cannot have an easement in his own land, and this is no doubt approximately true. That is, if one has, as owner of land, the right of possession, any use which he makes thereof he makes by virtue of his ownership, and not as having an easement therein. But it may happen that he is an owner of land without having the right of possession, as for instance, when he has an estate in reversion or remainder. In such a case he may have an easement in the land, although he is, in a sense, an owner of the land. So one who has an undivided interest in land, a cotenant, although he has rights of ownership in the land, may also have an easement therein as against his cotenant's undivided interest in the land.9 And one may, as cotenant of certain land, have an easement in land owned by him in severalty.10
It not infrequently occurs that two or more persons have, as appurtenant to distinct pieces of land owned by them, exactly similar easements in a single piece of land. For instance, one who owns several adjoining lots or parcels of ground may, in conveying them to different persons, grant to each of such persons a right of way in an alley, or over some land retained by him.11 The various persons thus entitled to similar easements
8. See Gale, Easements (8th Ed.) 22.
9. Reed v. West, 16 Gray (Mass.) 284; Thompson v. Snyder, 14 N. Mex. 403, 94 Pac. 1014.
10. Bradley's Fish Co. v. Dudley, 37 Conn. 136.
11. See e. g. Goodwin v. Bra-gaw, 87 Conn. 31, 86 Atl. 668;
Goralski v. Kostuski, 179 111. 177, 70 Am. St. Rep. 98, 53 X. E. 720; Whitelaw v. Rodney, 212 Mass. 540, 111 S. W. 560; City Club of Auburn v. Mcgeer, 198 N. Y. 160, 91 N. E. 539, 92 N. E. 105; Ailes v. Hallam, 69 W. Va. 305, 71 S. E. 273.
--- Easements distinguished from other rights..
Natural rights12 are, as operating in restriction of the use of another's land, occasionally referred to as easements. Such rights are not, however, as are easements, primarily rights as regards another's land, hut are merely rights incident to the ownership of one's own land.13
An easement is to be distinguished from a profit a prendre, which involves a power in the person entitled thereto of acquiring, by severance and removal from another's land, a part of the soil thereof, or something growing or subsisting in the soil.14
An easement is to be distinguished from a license, and the privilege created by a license. The nature and characteristics of a license in regard to land constitute a subject as to which there have been numerous decisions and much discussion. The following section will be devoted to a consideration of the subject of licenses.