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 ordinarily exists for the benefit of the owner of some particular land, it belonging to him as an incident of his ownership of the land. In other words, there is not only a "servient" tenement, subject to the easement, but also a "dominant" tenement, in favor of which the easement exists. And the easement, to be thus "appurtenant" to a dominant tenement, must be such that it conduces to the beneficial use of such tenement.90 For instance, one cannot have a right of way over another's land, appurtenant to one's own land, except as it is available for going to or from the latter land.
In England it has been judicially asserted that an easement is always appurtenant, that is, that one cannot have an easement which belongs to him personally, apart from his ownership of particular land.91
90. Ackroyd v. Smith, 10 C. B. 164; Hill v. Tupper, 2 Hurl. & C. 121; Linthicum v. Ray, 9 Wall. (U. S.) 24l; Moore v. Crose, 43 Ind. 30; Whaley v. Stevens, 21 S. C. 221, 27 S. C. 549, 4 S. E. 145. But in Perry v. Pennsylvania R. Co., 55 N. J. Law 178. 26 Atl. 829, it is held that an easement may be made appurtenant merely by language to that effect in a conveyance by the owner of the easement.
It is immaterial that the easement incidentally benefits land other than the tenement to which it is appurtenant. Simpson v. God-manchester, L. R. (1897) App. Gas. 696. See 10 Columbia Law Rev. at p. 74.
91. Rangeley v. Midland Ry. Co., 3 Ch. App. 306; Ackroyd v.
L224 Real Property. [Sec. 350
It appears, however, that even there one may have a right analogous to an easement, a personal right as to the user of particular land, not revocable at the pleasure of the land owner. 92 and whether this is called an easement in gross, a right analogous to an easement, or a right of user, appears to be entirely immaterial. In this country the possibility of the existence of a personal privilege in the nature of an easement or, as it is usually termed, of an "easement in gross," has been freely recognized 93.
- The dominant tenement. There is no necessity that the dominant tenement, to which the easement is appurtenant, should adjoin the servient tenement, a Me. 44S. 27 Atl. 352: Goodrich v. Burbank, 12 Allen (Mass.) 459: Amidon v. Harris. 113 Mass. 59; Wilder v. Wheeler. 60 X. H. 351;
Smith, 10 C B. 164; Hawkins v. Rutter. 61 L. J. Q. B. 146.
92. Mounsey v. Ismay. 3 Hurlst. & C. 49S; Shmtleworth v. Le Fleming. 19 C. B. X. S. 695; Great
Western Rwy. Co. v. Swindon etc. Rwy. Co., 22 Ch. Div. at pp. 706,
Ways in gross are referred to in the earliest English law dictionary. Tcrmcs de la Ley (.1629) under chi7nin: Doddridge. J., in W. Jones 127; by Chief Baron Gilbert in his work on Uses at p. 2S1. These references are from an article by Charles Sweet. Esq.. in 24 Law Quart. Rev. at p. 260. A way in gross was assumed to have a legal existence in Sen-house v. Christian, 1 Term. Rep. 560.
93. Wagner v. Hanna, 38 Cal. Ill, 99 Am. Dec. 354; Willoughby v. Lawrence. 116 111. 1, 56 Am. Rep. 75S. 4 N. E. 356; Engel v.
Shreve v. Mathis. 63 N. J. Eq. 170, 52 Atl. 234; Goldman v. Beach Front Realty Co., 83 N. J. 97, 83 Atl. 777; Mayor, etc.. of the City of New York v. Law, 125 N. Y. 380, 26 N. E. 471; Poull v. Mockley, 33 Wis. 482.
That an easement of diverting water from or across another's land may be in gross, see Ring v. Walker. S7 Me. 550. 33 Atl. 174; Goodrich x. Burbank, 12 Allen (Mass.) 459: Hail v. Ionia, 38 Mich. 423; Wentworth v. Philpot, 60 X. H. 193: Talbct v. Joseph, 79 Or 309. 155 Pac. 184; Columbia Water Power Co. v. Columbia Elec. St. Rwy.. 43 S. C. 154. 20 S. E. 1002.
In Myers v. Berven. 166 Cal. 484, 137 Pac. 260, a right of way, not apparently created for the benefit of any particular land, was regarded as assignable because, being "distinctly of an easement over the soil upon a denned route." it was an easement, not in gross, but appurtenant. The opinion does not explain how an which is subject to the easement,04 though obviously the two tenements ordinarily do adjoin. There are, however, statements to be found,95 and at least one decision.96 that a right of way cannot be appurtenant to land unless it has one of its termini upon the land to which it is claimed to be appurtenant, a view which is apparently not in harmony with the statement that the dominant and servient tenements need not adjoin. Why one terminus of a way must be upon the dominant tenement, is not explained.
It has been asserted that a way, in order to be appurtenant to land, must be"essentially necessary" to the enjoyment of the land.98 If this statement means anything more than that the way must conduce to the advantage of such land, it is, it is conceived, erroneous.
It is a question whether an easement can he appurtenant to an incorporeal hereditament, whether for instance, a right of way over the land of A can exist as appurtenant to, and for the purpose of exercising, easement can be appurtenant in the absence of a dominant tenement.
94. Guthrie v. Canadian Pac. R. Co.,27 Ont. App. 64; Graham v. Walker, 78 Conn, 130, 2 L. R. A. N S. 983, 112 Am. St. Rep. 93, 61 Atl. 98; Goodvvillie Co. v. Commonwealth Electric Co., 241 ill. 42, 89 N. E. 272; Jobling v. Tuttle, 75 Kan. 351, 9 L. R. A. N. S. 960, 89 Pac. 699; Witt v. Jefferson, 13 Ky. Law Rep. 746, 18 S. W. 229; Cady v. Springfield Waterworks Co., 134 N. Y. 118, ::i X. E. 245; Riefller v. Wayne Storage Water Power Co., 232 Pa. 282, 81 Atl. 300; Perrin v. Garfield, 37 Vt. 304.
95. Wasbbiirn, Easements (4th Ed.) 257 (semble); Garrison v. Rudd, 19 111. 558; Banxay v. Hunger, 42 Ind. 44. See Lathrop v. Eisner, 93 Mich. 599, 53 X. VV. 791; Kershaw v. Burns, 91 S. Car. 129, 74 S. E. 378.
96. Whaley v. Stevens, 21 S. Car. 223.
97. That it need not, see Graham v. Walker, 78 Conn. 130, 112
Am St. Rep. 93, 2 L. R. A. X. S. 983, 61 Atl. 98; Goodwillie Co. v. Electric Co., 241 111. 42, 89 N. E. 272; Witt v. Jefferson, L3 Ky. L Rep. 746, 18 S. W. 229; Case of Private Road, 1 A.shm. (Pa.) 417.