Servitudes not 802. The following land burdens, or servitudes attached to upon land, may be granted and held, though not attached to land: land. 1. The right of fishing and taking game; 2. The right of a seat in church; 3. The right of burial; 4. The right of taking rents and tolls; NOTE.-A servitude is defined to be a right whereby one thing is subject to another thing, or person, for use or convenience, contrary to the common right.-Ayl. Pand., p. 306; Ersk. Inst., p. 354. Servitudes which affect land are divided into two kinds, real and personal. The servitudes enumerated in Section 801 are real servitudes, imposed for the benefit of the estate to which the right belongs, and resting upon the estate on which the obligation is imposed. The servitudes enumerated in Section 802 are personal; they are not attached to a dominant estate, but to the person for whose benefit they are imposed. Though the terms easements and servitudes are often used by common law writers indiscriminately, it will be seen from the definitions given that a servitude may exist, and yet two elements necessary to constitute an easement be wanting, viz: 1. Benefit to corporeal property; and 2. The dominant estate. Servitudes in which these elements are wanting are classed by the common law writers under the head of rights in gross.-Washburn on Easements, p. 8; Burton on Real Property, Section 1116. RIGHTS OF FISHERY.-Washburn on Easements, p. 410. RIGHT OF A SEAT IN CHURCH.-McNabb vs. Pond, 4 Bradf., p. 7; Voorhees vs. Presb. Ch., 17 Barb., p. 103; Matter of Ref. Dutch Ch., 16 Barb., p. 237; First Bap. Ch. vs. Witherell, 3 Paige, p. 296. RIGHT OF BURIAL.-Richards vs. Northwest Dutch Ch., 11 Abbott's Pr., p. 30. RIGHT OF WAY.-Ackroyd vs. Smith, 10 C. B., p. 164. Personal servitudes are not assignable.-Washburn on Easements, pp. 4-10; Burton on Real Property, Sec. 1116; Ackroyd vs. Smith, 10 C. B., p. 164; Garrison vs. Rudd, 19 Ill., p. 558. tion of 803. The land to which an easement is attached Designais called the dominant tenement; the land upon which estates. a burden or servitude is laid is called the servient tenement. NOTE.-Washburn on Easements, p. 5; Wolfe vs. 804. A servitude can be created only by one who By whom has a vested estate in the servient tenement. NOTE.-Earl of Portmore vs. Bunn, 3 Dowl. & Ryl., p. 145. grantable. 805. A servitude thereon cannot be held by the By whom owner of the servient tenement. NOTE.-Huttemeier vs. Albro, 2 Bosw., p. 556; 18 held. servitudes. 806. The extent of a servitude is determined by Extent of the terms of the grant, or the nature of the enjoyment by which it was acquired. NOTE.-Dixon vs. Clow, 24 Wend., p. 188; Corning vs. Gould, 16 Wend., p. 531. If a grant be of a way from a highway to the grantee's dwelling house, he may not open it to his field. And if the way be to a particular corner of a field, the grantee may not use it to enter his field at any other point.-Henning vs. Burnett, 8 Exch., p. 187. Where a way is claimed by prescription, the character and extent of it is fixed by the uses under which it is gained.-Ballard vs. Dyson, 1 Taut., p. 279; Allen vs. Gomme, 11 A. & E., p. 759. In Lewis vs. Carstairs, 6 Wharton, p. 193, the Court limited the use of a way created for the accommodation of certain lots to these lots, and excluded its use for any other purposes. If one acquires a right of way to one lot or parcel of land, he cannot use it to gain access first to that parcel and thence over his own land to other lands belonging to him. So far as he should use it for access to or accommodation of other parcels than the specific one to which it was appurtenant, he would be a trespasser.-Lawton vs. Ward, 1 Ld. Raymond, p. 75; Jamison vs. McReady, 5 W. & S., p. 129; French vs. Martin, 4 Fost., p. 440; Kirkham vs. Sharp, 1 Wharton, p. 323; Davenport vs. Lamson, 21 Pick., p. 72; Case of a Private Road, 1 Ash., p. 424; Washburn on Easements, p. 87. The use of an easement by Apportioning prescription limits and defines the extent of the right.Washburn on Easements, p. 352. And the nature of the use cannot be changed from that by which the prescription was gained.-Washburn on Easements, p. 147. 807. In case of partition of the dominant tenement easements. the burden must be apportioned according to the divis ion of the dominant tenement, but not in such a way as to increase the burden upon the servient tenement. Rights of owner of future estate. Actions by owner and dominant 808. NOTE. If the dominant estate is divided, the easement will enure to the benefit of the owner of any part of it. Washburn on Easements, p. 58; 2 Washburn on Real Property, p. 32; 3 Kent Com., p. 420; Barron vs. Richard, 8 Paige, p. 351; Hills vs. Miller, 3 Paige, p. 254. Provided, however, that no additional burden is cast upon the servient estate.-Whitney vs. Lee, 1 Allen, p. 198; Underwood vs. Carney, 1 Cush., p. 285; Watson vs. Bioren, 1 Serg. & R., p. 227; Codling vs. Johnson, 9 Barnew. & C., p. 933; Staple vs. Heydon, 6 Mod., p. 1. The owner of a future estate in a dominant tenement may use easements attached thereto for the purpose of viewing waste, demanding rent, or removing an obstruction to the enjoyment of such easements, although such tenement is occupied by a tenant. NOTE.-Proud vs. Hollis, 1 Barn. and Cr., p. 8. 809. The owner of any estate in a dominant teneoccupant of ment, or the occupant of such tenement, may maintain an action for the enforcement of an easement attached thereto. tenement. Actions by owner of servient tenement. NOTE.-Brouwer vs. Jones, 23 Barb., p. 153. 810. The owner in fee of a servient tenement may maintain an action for the possession of the land, against any one unlawfully possessed thereof, though a servitude exists thereon in favor of the public. NOTE.-Carpenter vs. Oswego and Syr. R. R., 24 N. Y., p. 655; Wager vs. Troy Union R. R., 25 N. Y., p. 526. But to the contrary is Redfield vs. Utica and Syracuse R. R. Co., 25 Barb., p. 54, approved in Wilklow vs. Lane, 37 Barb., p. 244. 811. A servitude is extinguished: guished. 1. By the vesting of the right to the servitude and How extinthe right to the servient tenement in the same person; 2. By the destruction of the servient tenement; 3. By the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise; or, 4. When the servitude was acquired by enjoyment, by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoy ment. NOTE.-To the existence of every real servitude the existence of two distinct and separate estates is necessary-the dominant, in favor of which it exists, and the servient, upon which it is exercised. If at any time these estates are united under one ownership and possession, it follows that one of the elements necessary to the existence of the servitude is wanting, and that it is at once extinguished.-Tudor's Leading Cases, p. 108. But, to work this result, there must be an absolute unity of title and possession.-Ritger vs. Parker. 8 Cush., p. 145; Tyler vs. Hammond, 11 Pick., p. 193; Hazard vs. Robinson, 3 Mason, p. 272; Kieffer vs. Imhoff, 26 Penn. St., p. 438; Gayetty vs. Bethune, 14 Mass., p. 53; Hancock vs. Wentworth, 5 Met., p. 446. The destruction of the servient tenement extinguishes the easement.-Voorhees vs. Presbyterian Church, 17 Barb., p. 109; Regina vs. Bamber, 5 Q. B., p. 279; Regina vs. Chorley, 12 Q. B., p. 515. As to what acts of the owner of the servitude will extinguish it, see Washburn on Easements, p. 536; Corning vs. Gould, 16 Wend., p. 539; 3 Kent. Comm., p. 449; Crain vs. Fox, 16 Barb., p. 184. A servitude created by deed is not extinguished by mere non-user for any period. Smyles vs. Hastings, 22 N. Y., p. 217; 24 Barb., p. 44. But a use by the owner of the premises over which the servitude was granted, adverse to the enjoyment of the easement for a time long enough to create a prescriptive right will extinguish the servitude.-Arnold vs. Stevens, 24 Pick., p. 106; Jewett vs. Jewett, 16 Barb., p. 150; French vs. Braintree Co., 23 Pick., p. 222; Farrar vs. Cooper, 34 Me., p. 394; 3 Kent's Com., p. 359; Angell on Watercourses, Sec. 252. If the servitude was acquired by enjoyment, it may be extinguished by non-user for a period corresponding with the Statute of Limitations applicable to real property.-Robie vs. Sedgwick, 35 Barb., p. 329. TITLE III. RIGHTS AND OBLIGATIONS OF OWNERS. CHAPTER I. Rights of Owners. II. Obligations of Owners. CHAPTER I. RIGHTS OF OWNERS. ARTICLE I. INCIDENTS OF OWNERSHIP. II. BOUNDARIES. Rights of tenant for life. ARTICLE I. INCIDENTS OF OWNERSHIP. SECTION 818. Rights of tenant for life. 819. Rights of tenant for years, etc. 820. Same. 821. Rights of grantees of rents and reversion. 822. Liability of assigns of lessee. 823. Rights of lessees and their assignees, etc. 824. Remedy on leases for life. 825. Rent dependent on life. 826. Remedy of reversioners, etc. 818. The owner of a life estate may use the land in the same manner as the owner of a fee simple, except that he must do no act to the injury of the inheritance. NOTE.-Jackson vs. Brownson, 7 Johns., p. 227; Bradstreet vs. Pratt, 17 Wend., p. 44; Livingston vs. Reynolds, 2 Hill, p. 157; 26 Wend., p. 115. |