j^l-UBRARYO^ ^5JAEUNIVER% ^lOSMEUr^
>- \ v'^H-**^^ T '~
e? 1 ^XiCau. ^ vi? I
' UUJIl*^ JV/
^AOJIlViJO'*^ <f5U0NVS01^ "^lUAINnattV'
Jlc\i^k itirt iilV^
^tlt\ I i-iw*
^.jo>' ^^HOimi^"^ '^mwm^ '^miAmi^ ^^ojiwdjo'^ ^^m
mS//j, ^lOSANCEl^ A•O^CAllF0%^ <A,OFCAllF0ft^
rsoi^ -^/saiMNrti^'^ ^'^AMvaaii-^ "^^juivaani^
5 1 ir^ ^ §
^..>:r_ .:^ '^^.:
LA"W OF EASEMENTS,
JOHN LEYBOURN GODDARD, ESQ.
OF THE 3IIDDLE TEMPLE, BARRISTER AT L.VAV.
MUCH ENLARGED FROM THE SECOND ENGLISH EDITION OF 187/
EDMUND H. BENNETT, LL. D.
PROFESSOR OF LAW IN THE BOSTON UNIVERSITY.
HOUGHTON, MIFFLIN AND COMPANY.
Br HOUGHTON, MIFFLIN AND COMPANY
The Riverside Press, Cambridge:
Printed by H. O. Houghton and Company.
^ PREFACE TO THE AMERICAN EDITION.
Of the English treatises on Easements, the best known to
the American profession is probably that of Mr. Gale. Orig-
inally issued in 1839, and republished here in 1840, it has
passed through five editions in England, the latest being in
1876. But these very facts furnish some reasons why it is
not now the most desirable basis of an American work. The
law is a progressive science, and much advancement is notice-
able in the law of easements during the last forty years.
Any book written from the standpoint then existing is not
so well adapted to the present time as one more i;ecently and
freshly prepared. Besides, the work of Mr. Gale has, since
his death, been revised by different successive editors, whose
notes and additions have been prepared on quite different and
not altogether harmonious plans, and the original text is now
so overlaid with additions as to seem almost lost in the more
extended commentaries thereon.
Mr. Goddard's treatise was first written in 1871, and
reached a second edition in 1877. It has been declared by
high judicial authority, Cockburn, C. J., in Angus v. Dal-
ton, 3 Q. B. Div. 113, to be " a learned and able treatise."
It discusses the subject in a natural and philosophical order,
treating : First, of the definition and nature of Easements ;
second, of the various methods of acquiring them ; third, of
the mode and extent of their enjoymejit ; fourth, of their
t 71 VOO
IV PREFACE TO THE AMERICAN EDITION.
disturbance, and the remedy therefor ; lastly, how they may
be lost or extinguished.
Each of these topics is treated first, generally, as applicable
to all easements ; and subsequently as it relates to each spe-
cific easement, in alphabetical order : viz., air, light, support,
watercourses, and ways.
There is some liability to repetition in this method, but not
more perhaps than when each branch is fully discussed by it-
self alone, since illustrations from other branches must even
then be constantly resorted to.
Mr. Goddard's work has also the merit of confining itself
strictly to the subject. He has not been led aside to discuss,
except to distinguish, the law of Natural Rights, the right
of Profit a Prendre ; nor even Licenses ; rights which, though
much analogous to easements, cannot strictly be called such.
It is, however, purely an English work, only a single Ameri-
can case, that of Tyler v. Wilkinson, 4 Mason, 397, being
cited by the author.
In preparing this edition the undersigned has generally fol-
lowed the plan of the original work ; the American law being
sometimes interwoven into Mr. Goddard's text, and some-
times added in a separate chapter or section, as the subject
seemed to require. In some important particulars the Ameri-
can law is quite different from the English, especially on the
subject of prescription. We do not adopt the common law
of England as to a prescriptive right to light and air, support
of buildings, and the like ; nor do we have any statute analo-
gous to the English statute of 1832, commonly called the
Prescription Act, which has wrought great changes in the
common law of England, but which has been declared to have
" introduced greater doubt and confusion than existed before
The modern English decisions on the subject of easements
PREFACE TO THE AMERICAN EDITION. V
by prescription having necessarily been largely controlled by
the statute, it seemed proper to collect in this edition the com-
mon law decisions, and they are stated together in a section
commencing on page 133. The American doctrine of acquir-
ing an easement of light and air, both by implied grant and
prescription, is quite fully presented on pages 192 to 210.
The difference between the English and American law of
support for buildings is also indicated at pages 231 to 236.
About one hundred pages have been added to the body of the
book, and over five hundred cases newly cited. It has not
been thought necessary to accumulate all the American au-
thorities upon well settled elementary points, and perhaps
some have been improperly omitted ; if so the undersigned
would feel under obligations to any one informing him of the
fact. The recent English cases have also been referred to,
and those as well as the American are indicated by figures^
•while those of the author are denoted by letters. If this is
objectionable it seemed less so than to disfigure the page by
the use of brackets, and the additions of the editor may be
suflBciently distinguished for all practical purposes by the sim-
ple device above noted. An entirely new and full index has
been prepared by my friend, Mr. John E. Wetherbee, of the
Suffolk Bar, to whom also I am much indebted for a careful
reading of the proof-sheets, and other assistance.
Edmund H. Bennett.
Boston, July 1, 1880.
On the publication of the second edition of this treatise I
may be permitted again to refer to my original work on the
law of easements, as it was from that the present book took
its origin. In the year 1867 I was appointed by the late
Digest of Law Commissioners to prepare one of the three
specimens of digests they were desirous of having made, in
order to test the practicability of making a digest of the
whole law of England, and to ascertain the best form and
mode of executing that great work. The three subjects upon
which the Commissioners determined to perform their experi-
ment were Bills of Exchange, Mortgages, and Easements,
and the subject on which I was appointed to write was Ease-
To prepare this specimen digest I made a complete search
through the whole of the common law and equity reports
from the time of Queen Elizabeth to the then present date,
the number of volumes being upwards of eight hundred ; each
case I found on the subject was carefully read, and, with notes
of its subject-matter, registered, and I wrote my specimen di-
gest from the materials thus collected. On the completion
of my work the Commissioners made their report, in which
they recommended that the digest of the English law should
be proceeded with. As there were no signs of this ecom-
mendation being immediately carried out, and as the speci-
men digests were not published as it was expected they would
be after revision by the Commissioners, I determined to write
the present treatise on the subject to which I had devoted so
much attention. I adopted the same general plan for my
book that I had used for my specimen digest, as I believed it
embraced the whole subject of the law of easements, and yet
did not admit collateral topics, a fault to which I cannot but
think some text-books have a tendency. The form of the
text was necessarily changed, but the divisions into chapters
and sections were retained. Thus the whole subject will be
found divided into five chapters, explaining — first, the nature
of easements ; secondly, the various modes of acquiring them ;
thirdly, their extent and mode of user ; fourthly, their disturb-
ance and the remedies appointed by law for such injuries ; and
fifthly, their extinction, suspension, and revival. As, how-
ever, many principles of law apply to easements of all kinds,
but some apply only to easements relating to the air, light,
support, water, or ways, it was necessary to divide each chap-
ter into two parts or sections, one relating to easements gener-
ally, and the other to these special kinds of easements, and in
the second section of each chapter to treat of each of these
particular easements separately. This will explain the ar-
rangement of my work.
Though I believe the arrangement adopted enabled my
book to embrace the whole subject of easements, it has been
my endeavor to avoid wandering into collateral topics. This
has been one great aim I had in view, both when I wrote for
the Digest of Law Commission and also when I composed
this work ; but it was frequently difiicult to know where ex-
actly to draw the line to mark the proper limits of deviation»
and yet to keep from straying into by-paths, for there are
many rights of a character closely allied to easements — for
instance, profits a prendre and highways, — and many wrongs
to which disturbance of easements has a tendency to lead —
as trespass and nuisances, — which hold out strong induce-
ment to wander from the straight path and say something of
those other matters in passing. The very favorable recep-
tion which my work has met with, although the ground on
which it treads was already occupied by another treatise of
acknowledged merit, leads me to think I did not do wrong
in framing my work on the plan I adopted.
It remains for me merely to add that all the cases which
have appeared in the Law Reports, or the Law Journal Re-
ports, up to the end of 1876, are included in this edition, and
two or three cases more recently reported have been introduced
as the book was going through the press ; and for every case
cited a reference has been given to the Law Journal Re-
ports, if the case is reported there, in addition to the reference
to the regular series, or to the Law Reports, in which the same
case appears. It may also be added that the new method of
citing the Law Reports appointed since the formation of the
High Court of Justice has been adopted.
J. L. G.
2 Harcourt Buildings, Temple.
TABLE OF CONTENTS.
ON THE NATURE OF EASEAffiNTS.
Sect. 1. — On the Nature of Easements generally.
Misuse of the word " Easement " 1
Definition of " Easement "........ i
" Natural Rights " 2
" Licenses " 3
An easement is a jon'yjVe^'e 4
Without profit g
No easements in gross 7
Not universally true in America 10
" Dominant' and " 5eri'/en< " tenements and owners . . . .11
Dominant and servient tenements f//5/j«d 11
Easements henejicial to dominant tenement 14
No easement for benefit of servient tenement 16
Obligation on servient owner to suffer or refrain from doing something 1 7
New species of easements 21
Easements adverse to natural rights 23
Inconsistent easements 24
Subordinate easements 25
Easements of necessity ......... 25
When easements of necessity are permitted 26
Sect. 2. — On the Nature of Particular Easements.
Rights in connection with air 28
Free passage of air 28
Purity of air 29
Right to pollute air 29
Limit of the natural right to purity of air 29
Pollution of air, when justifiable • . 30
TABLE OF CONTENTS.
Light, air, and water compared
Right to open windows to admit light and air
Right to have light and air unobstructed \
Right to lio-ht and air is an easement
Natural right to support .....
Nature of the natural right to support
Natural right to support is absolute and unlimited
"What is adjacent land .....
Deprivation of natural right to support by statute
Effect on natural right to support of building and excavating
Support from underground water to surface land
Support from underground water to surface water
Easement of support for buildings .
Easement of support for excavated land
Effect of contiguity of buildings
Right to deprive land of support
Easements in connection with water
Natural and artificial sti'eams ....
Water from a natural source in a natural course
In an artificial course ......
Artificial supply to natural stream .
Natural rights and easements in water
" Riparian " land, owners, proprietors, and rights
Riparian rights incident to the whole riparian estate
Partition of a riparian estate ....
Grant of riparian rights . . . .
Obligation of landowner at the source of a stream
Course of stream must be known and defined .
Natural right to the flow of water
Natural right altered by easements .
Wright V. Howard
Right to have streams diverted
Diversion of flood-water
Diversion of the flow of the sea
Obligation to maintain sea-walls
Tidal rivers .....
Right to pour water over land
Flow of underground water
TABLE OF CONTENTS. xiii
Acton r. Blundell 62
Water collected in a well 64
Underground water affecting surface streams . . . . .66
Natural right to purity of water . . . . . . , 67
Purity of water trickling over land or percolating through the soil . 68
The right to take water for use . . . . . . . 69
Natural right to use water ......... 69
Limit to natural right to use and consume water .... 70
Nature of the right to take water 70
No natural rights of way ......... 72
Public and private ways ......... 72
Effect of rights of way on rights of landowner .... 73
Coexisting rights of way 75
Public way over preexisting private way 75
Ways of necessity .......... 76
Rights of way, general or limited 77
Attempts to create new species of easements . . . . .77
Uninterrupted prospect ......... 79
View of a shop-window ......... 82
Undisturbed privacy ......... 84
Obstructing bow windows 84
ON ACQUISITION OF EASEMENTS.
Sect. l. — On Acquisition of Easements generally.
Distinction between easements and natural rights .... 86
Modes of creation and acquisition of easements . . . . .87
Easements must be created by deed, actual or presumed . . 88
Covenants by landowners . . . . . . . . .89
Breach of contract for an easement not under seal .... 90
Grant of licenses by parol . 90
Implied from acquiescence . . . . . . . . 91
Implied from surrounding circumstances 92
ACQUISITION OF EASEMENTS BY GRANT.
Acquisition by grant, express or implied 92
TABLE OF CONTENTS.
Grant by one tenant to another
Derogation from grant by preventing an easement .
Estoppel from denying an easement ......
Easements may be granted for a limited time ....
Acquisition by express grant
Express grant by particular description .....
Express grant by general words .......
" Appurtenances "; what will pass by the word
What will not pass
"When ^yasi-easements will pass under general words
Grant of easements " used and enjoyed "
Easements first " used and enjoyed" during unity of ownership
Modification of the rule
Result of authorities as to grants by general words .
The word " grant " not essential
Easements excepted or reserved in a conveyance .
Grant at variance with an act of parliament ....
Grant subject to a condition
Implied grant of easements
Implied grant of easements necessary to render a grant beneficial
Grant presumed from surrounding circumstances
Presumption of lost grant after twenty years' user .
User must have been as of right .......
Ignorance of uSer rebuts a presumption of a grant .
Surrounding facts to be considered in conjunction with continuance
Effect of an old agreement on presumption ....
Implied grant of apparent and continuous easements .
Cases considered : Pyer v. Carter
Ewart V. Cochrane .......
Worthing ton v. Gimson ......
Pearson v. Spencer ,
Polden V. Bastard .
Watts V. Kelson ,
SufEeld V. Brown
Crossley i;. Lightowler
Kesult of the authorities
The American authorities
ACQUISITIOX OF EASEMENTS BY VIRTUE OF AX ACT OF PARLIAMENT.
Acquisition under a statute 128
By express terms, or the apparent intention of the act . . 128
Grant under a statute immediate or conditional . . . .129
Public highways 130
TABLE OF CONTENTS. XV
Private wars 130
Turnpike companies 131
ACQUISITION OF EASEMEXT5 UXDER A DEVISE.
Acquisition under a devise 131
ACQUISITIOX OF EASEMEXT5 BY PRESCRIPTION.
Acquisition by prescription 131
Nature of prescription at common law .132
Immemorial usage ......... 132
Presumption after twenty years' usage 132
Presumption of grant .... ..... 132
Prescription in America . . . 133
Must be adverse . 134
Conclusiveness of prescriptive right ....... 136
The Prescription Act 136
Section 2. — Ways, watercourses, and other easements . . .137
Sections. — Light 137
Explanations of sections 2 and 3 138
"Way" . 138
" Or other easement " 138
Uninterrupted flow of air . • . . 133
Pollution of air .......... 140
Easement claimed to obtain a j>rq/?f a jsremfre .... 142
♦'Watercourse" . 142
" Use of water " 142
Actual enjo}-ment 143
Efifect of the Prescription Act on prescription at common law . . 144
Legalization of previous user when an easement is acquired . . 145
Claims to prescriptive rights by owners in fee and occupiers of land
Rules for computing prescriptive periods under the act . . 146
Section 4. — Periods to be computed from " some suit or action " . 146
Not from the commission of an adverse act . . . . . 147
Meaning of 5ome suit or action . . . . . . . .147
User must be next before some suit or action .... 148
No such rules at common law . 149
Section 6. — No presumption of user to be made .... 149
Presumption not prohibited when evidence of an actual grant exists 151
Section 7. — Disability of persons interested in resisting prescriptive
TABLE OF CONTENTS.
Section 8. — User during terms of life or years in the servient tene-
" Other convenient watercourse "
Intervention of life estate, computation of period ....
Continuity of period. Exclusion of period of disability
Exclusion of terms for life and years, under section 8, when comput-
ing periods of forty years ........
The character of the user the same at common law and under the
No prescription at variance with a grant ....
No prescription at variance with a prescriptive right
Prescription at variance with a natural right
Prescription possible only when a grant can be presumed
Easement must have been capable of being granted
No prescription adversely to a statute ....
No jwescription if servient owner incapable of resisting user
The power to resist must be by reasonable means
Incapacity of servient owner to make a grant
Incapacity of dominant owner to take by grant . . . .
The time at which incapacity must exist in order to defeat prescrip-
No prescription if servient owner is ignorant of user
No prescription unless dominant and servient tenements, and
subject of an easement, are permanent ....
Prescriptive user must give title against all persons
User must have been " as of right"
Prescription Act : — user " as of right," — " claiming right thereto "
Bright V. Walker
Tickle V. Brown .......
User must not be by permission or by stealth or precarious
User must be peaceable .
Interruptions evidence against peaceable enjoyment
Privilege must be enjoyed in the character of au easement
User must be uninterrupted and continuous .
Interruptions of three kinds
(a) As of right ......
(&) As an easement ......
(c) In fact ... ....
Interruptions in fact as at common law ....
Partial interruption of user
Trifling and accidental interruptions ....
Suspension of user by agreement
Interruptions in fact under the Prescription Act .
TABLE OF CONTENTS. XVll
Voluntary cessation of user, and user by permission . . .179
Acquiescence in interruption . ....... 180
Interruption during tenancy for life . . . . • . .180
By dedication or public prescription . . . . . . 180
ACQUISITION OF EASEMEXTS UNDER A CUSTOM.
Easements claimed both by prescription and under a custom . .184
Claims by custom under the Prescription Act . . . . 185
Must be reasonable and certain 185
Sect. 2. — On Acquisition of Particular Easements.
Two kinds of easements . . . . . . . • .186
Uninterrupted How of air ........ 186
Prescriptive right . . . . . . . . . .187
Prescription Act . . . . . . . . . . 187
Common law . . . . . . . . . . .187
Right to pollute air ......... 1 88
Implied grant .188
Prescriptive right .......... 188
Acquisition of right to uninterrupted light and air . . . .189
No grant implied from suffering windows to be opened . . 190
When a grant is implied . . . . . . . . .191
Sale of house reserving adjoining land . . . . . . 191
Sale of land reserving house . . . . . . . .191
Sale of house and land simultaneously 192
The American law . . . . 192
Covenant for quiet enjoyment . . • ♦ • • • • 202
Right by prescription at common law ...... 202
Prescription Act .......... 210
" Actual enjoyment " ......... 210
Ancient custom of London ........ 210
Prescriptive rights to light now depend solely on the statute . .211
Doubts whether prescriptive rights now depend solely on the statute 212
Enjoyment " as of right " 213
Capability of resisting enjoyment ...."... 215
Enjoyment in character of an easement 215
Light to open ground 216
Light to shop- windows . . . . . . . . .216
Extraordinary light for special purposes 217
Light increased by reflection 219
American Prescription Acts ........ 220
TABLE OF CONTENTS.
Easements of suj^port 220
How acquired .......... 221
Implied grant on sale of land reserving subsoil 221
Implied reservation on grant of subsoil reserving the surface land 222
Mining leases ........... 223
No right by custom or prescription to destroy support . . . 224
Railway Clauses Consolidation Act . 225
Support from underground water ....... 226
Supj)ort for buildings . . . . . . . . .227
Right by implied grant . . . . . . . . . 227
Party walls 228