INTRODUCTION. IT has been already noticed in the Introduction to the Rights in land former Part of this work that some uses and profits of of another. land may be appropriated separately from the general ownership. They may be held by one person, while the land which supplies them, for all other uses and profits, belongs concurrently to another person; whose general rights of ownership are necessarily to a corresponding extent diminished or restricted. Rights of this kind are here designated as rights of use and profit in the land. of another, adopting the phrase jura in re aliena of the Roman law; which also designated them by the term servitutes, in reference to the land subjected to them. These are incorporeal rights, because the owner has not Incorporeal possession of the land which is the corporeal subject of rights. property, but only the use of it for certain purposes, or some profit derived from it, whilst it remains in the possession of another. Being incorporeal they are incapable, technically speaking, of entry, seisin, disseisin or livery; they do not lie in tenure, and therefore do not admit of reservation of rent or service, or of distress (a). Also, being incapable of livery, they are said at common law to lie in grant, that is to say, they pass by deed only, whether for an estate in fee or for life or for years; except that when appendant or appurtenant to land they pass by any conveyance that is sufficient to pass the land to which they are appended (b). The chief importance of this distinction has been taken away by the statute 8 & 9 Vict. c. 106, requiring a feoffment with livery to be evidenced by deed; (a) Co. Lit. 9 a, b; 142 a; 181 a. (b) Co. Lit. 49 a; 121 b; 172 a. Easements. Profits à prendre. Rents. Conditions of legality. and enacting that "all corporeal tenements and hereditaments shall be deemed to lie in grant as well as in livery." Rights of this kind are distinguished as being Easements or rights of mere use, and Profits to be taken or rendered out of the land. The former consist in the owner of certain land being entitled to have some specific use of the land of another for the more convenient use of his own land, but without taking any material profit out of it; as a right of way, or a right of access of light, or a right to use a watercourse. Accordingly an easement is defined to be "a privilege that one neighbour hath of another without profit; as a way or a drain through his land, or such like” (c).—The latter or profitable kind of rights include rights of taking some material profit from land of another, as the right of pasturing cattle, of taking wood or turf or fuel, or of taking minerals or part of the soil; and rights of receiving a profit out of land to be rendered by the tenant in money or kind, as rent. The profits to be taken by the person himself are said, in the language of the common law, to lie in prender, and are called profits à prendre; and profits to be received at the hand of the tenant are said to lie in render (d). It is a necessary condition of a claim or right over land of another that it be strictly defined and limited. Uncertainty of description or extent renders the claim void. On the other hand, general ownership of land, as regards the uses and profits, is indefinite and unlimited, including every mode in which the land can be lawfully used or employed. Accordingly it is said, "Servitus or easement gives a power of applying the subject to exactly determined purposes. Property or dominion gives the power of applying it to all purposes" (e).—It is a further condition that the claim be of a kind recognised by law. "There are certain known incidents to property and its enjoyV. III. (c) Termes de la ley. (d) Co. Lit. 141 b. (e) Austin, Jur., P. 3. ment; certain burthens wherewith it may be affected, or rights which may be created and enjoyed over it by parties other than the owner; all which incidents are recognised by the law. In respect of enjoyment, one may have the possession and the fee simple, and another may have a rent issuing out of it, or the tithes of its produce, or an easement, as a right of way upon it, or of common over it. And such last incorporeal hereditaments may be annexed to an estate which is wholly unconnected with the estate affected by the easement. All these kinds of property, however, are well known to the law and familiarly dealt with by its principles. But incidents of a novel kind cannot be devised and attached to property at the caprice of the owner. There can be no harm in allowing the fullest latitude to men in binding themselves and their representatives, that is, their assets real and personal, to answer in damages for breach of their obligations. But great detriment would arise and much confusion of rights, if parties were allowed to invent new modes of holding and enjoying real property, and to impress upon their lands and tenements a peculiar character, which should follow them into all hands, however remote” (ƒ). land. Covenants or personal obligations affecting the use and Covenants enjoyment of land, referred to above, may become to a running with certain extent annexed to the land, or, as it is called, run with the land by reason of the nature of the covenant. They may also become obligatory upon purchasers or assignees of the land by reason of their taking it with notice of the covenants. These covenants have then some analogy in effect with easements or rights over the land of another by subjecting the use of the land to the terms of the covenant; which, however, being mere matter of agreement are capable of wider and more varied scope than the (f) Brougham, L. C., Keppell v. Bailey, 2 M. & K. 535; adopted in Ackroyd v. Smith, 10 C. B. 188; and in Hill v. Tupper, 2 H. & C. 121; 32 L. J. Ex. 217; Mellish, Public easements. easements recognised by law. On the other hand they are only binding upon the actual parties to the covenant and those who become implicated as parties, and they are attended with different forms of remedy; being regulated by the law of contract to which branch of law they properly belong. There remains to be noticed a class of rights which resemble easements in being used or exercised over land held in private property, but which differ from easements in not being vested exclusively in any individual person. These are vested in the public generally, that is, in every individual member of the public, as such, or at least in some locally defined portion of the public and its individual members. Of this kind are highways and public rights of way of all kinds; also various uses of land founded upon local customs. Such rights are held by the public, not as appurtenant or annexed to land, but independently of any land or, as it is termed, in gross. They may be described as Public and Local Uses of the nature of Easements.The public cannot, nor can any portion of the public, merely as such, claim to take Profits from land in private ownership, by any form of grant, prescription, or custom. In accordance with the above explanation this Part of the work is arranged in the following Chapters. CHAPTER I. EASEMENTS. Section I. Easements in general. III. Creation of easements. V. Remedies for easements. SECTION I. EASEMENTS IN GENERAL. Easements appurtenant to land-dominant and servient tenement— easement in gross. Conditions of appurtenancy. Positive and negative easements. Licence to use land-revocation of licence-notice of revocation-licence not assignable. Licence coupled with grant-parol grant-grants irrevocable-and assignable. Easements admissible in law-specific easements-particular easements -claims not admitted as easements-covenants concerning use of land. to land. Easements are rights appurtenant or annexed to the Easements ownership of certain land, of using the land of another appurtenant person as auxiliary to it, that is, for the more convenient use and occupation of it, in addition to the ordinary incidents of ownership; so that a conveyance of the land carries with it the appurtenant easements, together with the ordinary possessory uses, without any separate conveyance or mention of the easements (a). The land to which an easement is appurtenant is called, Dominant in the language of the civil law, the dominant tenement, tenement. (a) Co. Litt. 1216. and servient |