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 .
The various classes of vesti-tive facts by means of which an easement can be created may be enumerated as follows: (1) Express grant;
(3) Implied grant or reservation; (4) Prescription; (5) A statutory proceeding, usually under the power of eminent domain; (6) Estoppel. The first of these will be considered in this section, and the others in the sections following.
Easements, involving as they do no possession or seisin of the land, were never capable of creation by livery of seisin, and an owner of land desirous of creating an easement in favor of another could do so only by grant, that is, by a written instrument under seal. The necessity for this purpose of an instrument under seal still exists,25 except in so far as seals may, in the particular jurisdiction, have been abolished or have lost their efficacy. In equity, however, it appears that an instrument, not under seal, by which it is sought to create an casement or right of profit, if based
25. Wood v. Leadbitter, 13
Mees. & W. 842; Somerset v. Fog-well, 5 Barn. & C. 875; Bird v. Higgmson, 2 Adol. & E. 696, 6 Adol. & E. 824; Hewlins v. Ship-pam, 5 Barn. & C. 221; Shipley v. Fink, 102 Md. 219, 2 L. R. A. (N. S.) 1002, 62 Atl. 360; Dyer v. Sanford, 9 Mete. (Mass.) 395, 43 Am. Dec. 399; Morse v. Copeland, 2 Gray (Mass.) 302; Fuhr v. Dean, 26 Mo. 116, 69 Am. Dee. 484; Blaisdell v. Portsmouth, G. F. & C. R. Co., 51 N. H. 483; Veghte v. Raritan Water Power Co., 19 N. J. Eq. 142; Thompson v. Gregory, 4 Johns. (N. Y.) Si. 1 Am. Dec. 255; Wilkins v. Irvine, 33 Ohio St. 138; Huff v. Mccauley, 53 Pa. St. 206, 91 Am. Dec. 203.
Even apart from the common-law requirement that the grant of an easement shall be by writing under seal, a writing is necessary, under the Statute of Frauds, and an attempted oral grant of an easement is no more than a license.26 In courts exercising equitable powers, however, as before stated,27 if the intended grantee makes expenditures on the faith of the attempted oral grant, the intending1 grantor is estopped to deny the validity of the grant, or as it might be otherwise expressed, the attempted oral grant is given effect on the theory of part performance.
What is in form a covenant merely - that is, an agreement under seal - may operate as the grant of an easement, when this is clearly the intention of the parties.28 For instance, a covenant by A that B shall
25a. Frogley v. Lovelace, Johns 333; Jones v. Tankerville (1909) 2 Ch. 440; Ashelford v. Wills, 194 111. 492, 62 N. E. 817.
26. Profile Cotton Mills v. Calhoun Water Co., 189 Ala. 181, 66 So. 50; Davis v. Tway, 16 Ariz. 566, L. R. A. 1915E, 604, 147 Pac. 750; Empire Investment Co. v. Mort, 169 Cal. 732, 147 Pac. 960; Workman v. Stephenson, 26 Colo. App. 339, 144 Pac. 1126; Mcreynolds v. Har-rigfeld, 26 Idaho, 26, 140 Pac. 1096; Wilmington Water-power Co. v. Evans, 166 111. 548, 46 N. E. 1083; Bonelli v. Blakemore, 66 Miss. 136, 14 Am. St. Rep. 550, 5 So. 228; Banghart v. Flummer-felt, 43 N. J. Law 28; Huff v. Mccauley, 53 Pa. St. 206, 91 Am. Dec. 203; Harris v. Miller, Meigs (Tenn.) 158, 33 Am. Dec. 138; Maple Orchard Grove & Vineyard Co. v. Marshall, 27 Utah,
215, 75 Pac. 369; Rice v. Roberts, 24 Wis. 461, 1 Am. Rep. 195.
27. Ante, Sec. 349(d), notes 44-49.
28. Hiolms v. Seller, 3 Lev. 305; Rowbotham v. Wilson, 8 H. L. Cas. 348, 362; Mccarthy v. Nic-rcsi, 72 Ala. 332, 47 Am. Rep. 418; Willoughby v. Lawrence, 116 111. 11, 56 Am. Rep. 758. 4 X. E. 356; Harris v. Dozier, 72 111. App. 542; Hogan v. Barry, 143 Mass. 538, 10 N. E. 253; Ladd v. City of Boston, 151 Mass. 585, 21 Am. St. Rep. 481, 24 X. E. 858; Kettle River R. Co. v. Eastern Ry. Co., 41 Minn. 472, 6 L. R. A. Ill, 43 N. W. 469; Barr v Lamaster. 48 Neb. 114. 32 L. R. A. 451, 66 N. W. 1110; First Nat. Bank v. Portsmouth Sav. Bank, 71 N. H. 547, 53 Atl. 1017; Wetmore v. Bruce, 118 N. Y. 319, 23 N. E. 303: Nor-fleet v. Cromwell, 64 N. C. 1; Morton v. Thompson. 69 Vt. 432.
The grant of an easement may properly provide for a future extension of the user of the servient tenement to correspond with future requirements in that re-gard.28a
It has been the subject of learned discussion in England,29 whether, in a grant of an easement, in order to confer an interest for longer than the grantee's life, words of inheritance must be used.30 In this country it has occasionally been assumed that they are necessary for this purpose,31 in the absence of any statutory provision making a conveyance effective to create an estate in fee simple without the use of such words,32 such as has been before referred to.33
Whether an instrument is a grant of an easement in particular land,33a or a transfer of the ownership of
38 Atl. 88; Kalinowski v. Jacob-owoski, 52 Wash. 359, 100 Pac. 852; Warren v. Syme, 7 W. Va. 475; In re Barhausen, 142 Wis. 292, 124 N. W. 649, 125 N. W. 680.
Likewise what is in form a release may, under the particular circumstances of the case, be construed as the grant of an easement. Walterman v. Norwalk, 145 Wis. 663, 130 N. W. 479.
28a. Patterson v. Chambers Power Co., 81 Ore. 328, 159 Pac. 568, and cases there cited. And see post, Sec. 369.
29. See articles in 24 Law Quart. Rev. at pp. 199, 259, 264.
30. There is a dictum to the effect that such words are necessary in Hewlins v. Shippam, 5 B. & C. 221, 228. They are in practice invariably inserted.
31. Bean v. French, 140 Mass.
229, 3 N. E. 206; Hogan v. Barry, 143 Mass. 538, 10 N. E. 253. And see cases cited Post, Sec. 362, note 65.
But even in a state in which such words are regarded as necessary in the case of the grant of an easement, they are not necessary in order to give an easement by partition decree. Bornstein v. Doherty, 204 Mass. 280, 90 N. E. 531.