and the defendant would not allow the plaintiff to come on his land to repair the river-bank without the payment of a large sum of money, and the mill came to a standstill for want of water, it was held that the plaintiff, being entitled to the use of the watercourse, was entitled to come on the defendant's land to repair the watercourse and preserve it (post, ch. 3, s. 1), and the defendant was restrained by injunction from preventing the plaintiff, his servants and workmen, from coming on his land and repairing the river-bank, and doing what was necessary to be done to restore the water to its ancient channel. (x) (x) M'Swiney v. Haynes, 1 Ir. Eq. Rep. 322. See Roberts v. Rose, post, ch. 4, s. 2.

CHAPTER III.

OF CONVENTIONAL AND PRESCRIPTIVE SERVITUDES-EASE-
MENTS AND PROFITS A PRENDRE.

OF CONVENTIONAL AND PRESCRIPTIVE SERVITUDES-EASEMENTS AND PROFITS A PRENDRE.

113. Easements.-The servitudes naturally incident to the ownership and occupation of land, and the legal restrictions. upon the proprietary rights of landowners may, within certain limits, be enlarged and extended by express and implied contract, by grant, and in certain cases by custom and prescription. (a) Thus, one proprietor may obtain by grant, or from long-continued and uninterrupted enjoyment, a right to take water from his neighbor's well, or to wash and water cattle at a neighbor's farm; (b) to hang and dry clothes on lines on a neighbor's land; (c) to hang and dry nets thereon; (d) to turn the plough thereon in ploughing; (e) to discharge water thereon from the roofs and eaves of houses; (f) or to have the benefit of a neigh

(a) Fitch v. Rawlings, 2 H. Bl. 393. See Gale on Easements.

(6) Race v. Ward, 4 Ell. & Bl. 702; 24 Law J., Q. B. 153. Manning v. Wasdale, 5 Ad. & E. 758.

(c) Drewell v. Towler, 3 B. & Ad. 735.

(d) 7 Vin. Abr. p. 183. CUSTOM F., pl. 2.

(e) 7 Vin. Abr. p. 174. CUSTOM, P. pl. 4, F. pl. 1.

34.

(f) Thomas v. Thomas, 2 C. M. & R.

bor's fence or hedge maintained and repaired at the expense of such neighbor. (g) A privilege or benefit of this description, unaccompanied by any profit or interest in the soil itself, is called in our law an easement, and is claimable by custom, grant, or prescription.'

114. Profits à prendre.- A in one man of entering upon therefrom a profit of the soil.

(g) Boyle v. 9 D. & R. 437.

Tamlin, 6 B. & C. 338;

Barber v. Whiteley, 34

profit à prendre is a right vested the land of another, and taking It is an incorporeal right, cloth

L. J., Q. B. 212.

1 An easement is an incorporeal right existing in favor of one estate against another, conferring a liberty, privilege or advantage therein, for special purposes, without any ownership of the fee, and without any profit to such estate. right of way, a right to the flow of water, a right of support and other similar rights. Big Mountain Impt. Co's. Appeal, 54 Penn. St. 361; Kenyon v. Nichols, I R. I. 412; Hill v. Lord, 48 Me. 83; Schuylkill, &c. Co. v. Stoener, 2 Grant's Cas. (Penn.) 62.

Such rights can only be created by grant, express or implied, or by prescription; Big Mountain Impt. Co's. Appeal, ante; Kenyon v. Nichols, ante; Fuhr v. Dean, 26 Mo. 116; as, although they do not embrace the fee, yet they cover an interest in the land which can not pass by parol or be conferred in any manner except such as would be adequate to pass the fee itself; Huff v. McCauley, 53 Penn. St. 206; Owen v. Field, 12 Allen (Mass.) 457; Dark v. Johnston, 55 Penn. St. 164; Morse v. Copeland, 2 Gray (Mass.) 302; by this I do not mean that it is absolutely essential that there should be a deed in all cases, but there must be such a contract between the parties conferring the right, that a court of equity would enforce it. Thus, in Witherell v. Brabst, 23 Iowa, 586, the defendant agreed with the plaintiff's grantor to give him a right of passage twenty-two feet in width, over his land, as an outlet for the premises occupied by the plaintiff. The plaintiff's grantor paid the defendant the sum of twenty-five dollars for such right, the defendant giving him a receipt therefor, stipulating that in case he should fail to make title to the land, he would refund the money, reserving the interest thereon for the use of the way. The defendant after getting into a position where he could make title, refused to do so, but offered to refund the money. The court held that this conferred an easement in the lan and not a mere license, and that the defendant was bound to convey it.

It is sometimes said that it is essential to an easement that there should be a dominant and servient estate. Dark v. Johnston, ante, and this is true as to easements arising by prescription, and generally of those arising from implied grant, but an easement in an estate may be reserved by the grantor, or may be conferred by express grant, when there is no particular estate to which it is annexed, and such easements may be transferred or assigned as well as those that are annexed to a particular estate.

Thus, in Goodrich v. Burbank, 12 Allen (Mass.) 459, it was held that a grantor who reserved generally the right to take water through pipes from a spring situated upon the premises conveyed, with the privilege of entering to make repairs, thereby acquired an easement in the land for such purpose, which he could convey to others, even though it was not attached to a particular estate.