use of another tract may be suspended by the creation of an easement," or by the title of the two tracts being united in one person, but they cannot be completely extinguished, since they are regarded as inseparably annexed to the soil itself, and they revive upon the termination of the easement or the severance of title.78

303. Injuries to rights-Remedies.

If the use which one makes of a stream is not a reasonable use, or if it causes substantial and actual damage to a lower proprietor by diminishing the value of his land, he has a right of action for the infringement of his rights, even though, at the time, he has no mill or other work thereon to sustain actual injury. Likewise, it seems, an action will

77 See post, §§ 304-333.

A natural right, like an easement (post, § 332), may, it seems, also be suspended by the grant of a license to do something on the licensee's land, which will interfere with the exercise of the natural censee's land, which will interfere with the exercise of the natural right, as when an owner of land on a stream ricenses another to erect a work which will obstruct the flow of the stream, and the work is erected. Liggins v. Inge, 7 Bing. 682, 2 Gray's Cas. 351. And in states where an executed license is irrevocable, this will be the case, even though the licensed act is not to be done on the licensee's land. Rerick v. Kern, 14 Serg. & R. (Pa.) 267, 16 Am. Dec. 497; Smith v. Green, 109 Cal. 228; McBroom v. Thompson, 25 Or. 559, 42 Am. St. Rep. 806.

78 Goddard, Easements, 524; Shury v. Piggot, 3 Bulst. 339, 2 Gray's Cas. 97; Hazard v. Robinson, 3 Mason, 272, Fed. Cas. No. 6,281; Cary v. Daniels, 8 Metc. (Mass.) 466.

79 Embrey v. Owen, 6 Exch. 353, 2 Gray's Cas. 109; Sampson v. Hoddinott, 1 C. B. (N. S.) 590, 2 Gray's Cas. 119; Harrop v. Hirst, L. R. 4 Exch. 43; Elliot v. Fitchburg R. Co., 10 Cush. (Mass.) 191, 2 Gray's Cas. 145; Webb v. Portland Mfg. Co., 3 Sumn. 189, Fed. Cas. No. 17,322; Corning v. Troy Iron & Nail Factory, 40 N. Y. 191, Finch's Cas. 121; Ulbricht v. Eufaula Water Co., 86 Ala. 587, 11 Am. St. Rep. 72; Chapman v. Thames Mfg. Co., 13 Conn. 269, 33 m. Dec. 401; Plumleigh v. Dawson, 6 Ill. 544, 41 Am. Dec. 199; Blodgett v. Stone, 60 N. H. 167. The earlier English cases to the contrary, such as Wright v. Howard, 1 Sim. & 8. 190, Williams v. (678)

lie on account of the pollution of air by the use of neighboring land, although, owing to the fact that the plaintiff is not actually occupying the land, he does not suffer therefrom, it being sufficient that his right to have the air free from pollution has been invaded.80

In this country, the owner of the reversion of land may generally bring an action for an interference with a natural right incident to the land, if the rental value is thereby diminished.81 In England, the interference must, it seems, be of a permanent character, to authorize an action by him, and it is not sufficient that it affects the rental value.82

The form of action at common law for an injury to one of the natural rights above considered is an action of damages, generally in trespass on the case, though trespass will lie when the injury consists of a direct invasion of plaintiff's land by the act of defendant.83 An injunction will fre quently be issued by a court of equity to prevent an injury to a natural right, especially if the legal remedy appears to

Morland, 2 Barn. & C. 910, 2 Gray's Cas. 101, and Mason v. Hill, 3 Baru. & Adol. 304, are to be considered as overruled. See Goddard, Easements, 500.

80 Dana v. Valentine, 5 Metc. (Mass.) 8, 2 Gray's Cas. 61. See Farley v. Gate City Gas Light Co., 105 Ga. 323. But in England it has been decided that there is no right of action on account of noise until the plaintiff has made such use of his land that the noise is an annoyance to him. Sturges v. Bridgman, 11 Ch. Div. 852, 2 Gray's Cas. 57.

81 Baker v. Sanderson, 3 Pick. (Mass.) 348; Hastings v. Livermore, 7 Gray (Mass.) 194 (semble); Francis v. Schoellkopf, 53 N. Y. 154; Kernochan v. New York Elevated R. Co., 128 N. Y. 559; Lachman v. Deisch, 71 Ill. 59.

82 Pollock, Torts, 414. So it has been decided that the landlord cannot sue on account of a nuisance of noise, since this may cease before the leasehold estate terminates. Simpson v. Savage, 1 C. B. (N. S.) 352, 2 Gray's Cas. 34; Jones v. Chappell, L. R. 20 Eq. 539. 82 2 Wood, Nuisances, §§ 824, 842; Gould, Waters, § 369 et seq.

be inadequate. One whose natural rights are injured by the use made of another's land may, in case this use constitutes a nuisance, abate it, as such, of his own volition, without resort to a court of justice, if this does not involve a breach of the peace. This remedy is, however, a somewhat hazardous one, as subjecting the person pursuing it to liability in case he oversteps his exact rights in the matter, and is in practice but seldom availed of.85

84 3 Pomeroy, Eq. Jur. §§ 1350, 1351; 2 Wood, Nuisances, c. 25; Gould, Waters, c. 13.

3 Wood, Nuisances, §§ 844-848.

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CHAPTER XIL

EASEMENTS.

1. THE NATURE AND CLASSES OF EASEMENTS.

304.

Easements distinguished from other rights,

305. Easements in gro88.

306. Light and air.

807. Waters and watercourses.

An easement is a right, in one person, created by grant or its equivalent, to do certain acts on another's land, or to compel such other to refrain from doing certain acts thereon, the right generally existing as an accessory to the ownership of neighboring land, and for its benefit.

The easements of most importance are: Rights in extension or diminution of natural rights in regard to air, water, and support; rights of way over another's land; rights to maintain aqueducts or drains on another's land; rights as to the use of a party wall in part or wholly on another's land; rights to have light and air pass to one's windows without obstruction; pew rights in churches and burial rights in cemeteries.

To be distinguished from easements are licenses, which merely justify acts on another's land which would otherwise be illegal. They may be revoked at any time, except, in some states, after the licensee has incurred expense under the license, and they are not assignable.

304. Easements distinguished from other rights.

Natural rights, which have just been discussed, are frequently termed "easements," and they are in most respects similar to easements. In view, however, of the fact that they are not created separately as a distinct subject of property, but are merely incidents of the right of ownership of land, while other rights as to the use of another's land are created by voluntary act, or its equivalent, on the part of such other, it seems preferable to treat these "natural rights" as entirely distinct from those created by voluntary act, and,