in gross, since in this country it rarely, if ever, belongs to a particular house or messuage. Pews are also said to be, in the absence of statutory provision to the contrary, "real estate."94 These prevailing views might, it would seem, be somewhat more accurately expressed by saying that the easement or quasi easement of using the pew is a "real" thing, of an incorporeal nature, and that an interest or estate therein, if of an indefinite duration, constitutes real property. If one's interest is limited to a term of years, or is "from year to year," it is personal property merely."

95

As to the rights of the person entitled to use a pew upon the destruction of the church edifice or the sale thereof, the cases are not in entire accord. The view more generally adopted, however, is that the church corporation or trustees are liable to him for the value of his right if the building is destroyed or sold without an absolute necessity for such action, while there is no such liability in case such necessity exists.96 There are occasional suggestions that the pew own

94 Attorney General v. Proprietors of Federal St. Meeting House, 8 Gray (Mass.) 1; Kimball v. Second Congregational Parish in Rowley, 24 Pick. (Mass.) 347; Trustees of Ithaca First Baptist Church v. Bigelow, 16 Wend. (N. Y.) 28; Viele v. Osgood, 8 Barb. (N. Y.) 130; Price v. Lyon, 14 Conn. 280; Howe v. Stevens, 47 Vt. 262; Barnard v. Whipple, 29 Vt. 401, 70 Am. Dec. 422.

95 See McNabb v. Pond, 4 Bradf. (N. Y.) 7; Johnson v. Corbett, 11 Paige (N. Y.) 265, 276; Inhabitants of First Parish v. Spear, 15 Pick. (Mass.) 144; Trustees of the Third Presbyterian Congregation v. Andruss, 21 N. J. Law, 325; St. Paul's Church in Syracuse v. Ford, 34 Barb. (N. Y.) 16. In Pennsylvania, the right to a pew is considered to be personal property. Church v. Wells' Ex'rs, 24 Pa. St. 249. And so by statute in Massachusetts. Rev. Laws 1902, c. 36, § 38.

96 Cooper v. Trustees of First Presbyterian Church, 32 Barb. (N. Y.) 222; Kincaid's Appeal, 66 Pa. St. 411, 422; Gorton v. Hadsell, Cush. (Mass.) 508; Kellogg v. Dickinson, 18 Vt. 266; Wheaton v Gates, 18 N. Y. 395; Mayer v. Temple Beth El, 52 N. Y. St. Rep. 638, 23 N. Y. Supp. 1013; Sohier v. Trinity Church, 109 Mass. 1.

er would have a right to be allotted a pew in a new edifice substituted for the old.97

The right to inter bodies in a burial ground belonging to a corporation or association is usually regarded as based on a mere privilege or easement, and the fact that the right is evidenced by what is called a deed of a burial lot seems not to affect the character of the right. Occasionally, the burial right is spoken of as a license merely." In one or two cases, on the other hand, one to whom a lot is conveyed for burial purposes is regarded as the owner of the land.100

The corporation or society controlling the cemetery may make regulations as to the mode and limits of the use of lots therein for burial,101 but such regulations must not be unreasonable or arbitrary.102 All rights in the persons entitled to use the burial ground are terminated by the necessary abandonment of the use of the land for burial purposes.108

* Mayer v. Temple Beth El, 52 N. Y. St. Rep. 638, 23 N. Y. Supp. 1013; Daniel v. Wood, 1 Pick. (Mass.) 102.

98 Dwenger v. Geary, 113 Ind. 106; Hancock v. McAvoy, 151 Pa. St. 460, 31 Am. St. Rep. 774; Hook v. Joyce, 94 Ky. 450; Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 503; Went v. Methodist Protestant Church, 80 Hun, 266, 150 N. Y. 577.

Partridge v. First Independent Church, 39 Md. 631; Rayner v. Nugent, 60 Md. 515; Page v. Symonds, 63 N. H. 17, 56 Am. Rep. 481; McGuire v. Trustees of St. Patrick's Cathedral, 54 Hun (N. Y.) 207; Kincaid's Appeal, 66 Pa. St. 420, 5 Am. Rep. 877.

100 New York Bay Cemetery Co. v. Buckmaster, 49 N. J. Law, 449; Silverwood v. Latrobe, 68 Md. 620.

101 Dwenger v. Geary, 113 Ind. 106; Farelly v. Metairie Cemetery Ass'n, 44 La. Ann. 28.

102 Rosehill Cemetery Co. v. Hopkinson, 114 Ill. 209; Mount Moriah Cemetery Ass'n v. Com., 81 Pa. St. 235, 22 Am. Rep. 743; Silverwood v. Latrobe, 68 Md. 620.

103 Craig V. First Presbyterian Church, 88 Pa. St. 42, 32 Am. Rep. 417; Kincaid's Appeal, 66 Pa. St. 411, 5 Am. Rep. 377; Page v. Symonds, 63 N. H. 17, 56 Am. Rep. 481; Partridge v. First Inde. pendent Church, 39 Md. 631; Richards v. Northwest Protestant

II. THE ACQUISITION OF EASEMENTS.

An easement may be created or acquired by:

(1) Express grant.

(2) Reservation or exception in a conveyance of land.
(3) Implied grant of an easement corresponding to a pre-
existing quasi easement.

(4) Prescription.

(5) A statutory proceeding, usually under the power of eminent domain.

(6) Estoppel.

315. Express grant.

Easements, being incorporeal in their nature, were regarded at common law as lying in grant, and not in livery, and consequently a grant by the owner of the servient estate has always been a recognized mode of creating them.104 The word "grant," at common law, implied a conveyance under seal, and therefore a conveyance of an easement, as of any other incorporeal interest in land, must be under seal, even though the conveyance is merely for years.105 In order to create an interest in fee in an easement by express grant, the word "heirs" must be used, as in the conveyance of rights

Dutch Church, 32 Barb. (N. Y.) 42; Went v. Methodist Protestant Church, 80 Hun, 266, 150 N. Y. 577; Price v. Methodist Episcopal Church, 4 Ohio, 515.

104 Co. Litt. 9a, 9b, 49a, 121b, 142a, 172a, 181a; Challis, Real Prop. 41. 105 Wood v. Leadbitter, 13 Mees. & W. 842, 2 Gray's Cas. 359; Somerset v. Fogwell, 5 Barn. & C. 875, 3 Gray's Cas. 230; Bird v. Higginson, 2 Adol. & E. 696, 3 Gray's Cas. 231, 6 Adol. & E. 824; Hewlins v. Shippam, 5 Barn. & C. 221; Blaisdell v. Portsmouth, G. F. & C. R. Co., 51 N. H. 483, Finch's Cas. 793; Cagle v. Parker, 97 N. C. 271; Dyer v. Sanford, 9 Metc. (Mass.) 395, 43 Am. Dec. 399; Morse v. Copeland, 2 Gray (Mass.) 302; Fuhr v. Dean, 26 Mo. 116, 69 Am. Dec. 484; Veghte v. Raritan Water Power Co., 19 N. J. Eq. 142; Thompson v. Gregory, 4 Johns. (N. Y.) 81, 4 Am. Dec. 255; Huff v. McCauley, 53 Pa. St. 206, 91 Am. Dec. 203, Finch's Cas. 76.

of ownership in fee, except where the requirement has been dispensed with by statute.106

Even apart from the common-law requirement that the grant of an easement, as of any other incorporeal thing, must be by writing under seal, a writing is necessary, under the Statute of Frauds, and an attempted oral grant of an easement is no more than a license. 107 In some cases, however, particularly in courts exercising equitable powers, an oral grant of an easement, if acted upon by the beneficiary of the grant, has been regarded as valid, on the theory that, in such case, to allow the grant to take effect as a revocable license merely would permit the commission of a fraud by the grantor.108 This is the doctrine before referred to, that an oral license, if acted upon, is irrevocable, an irrevocable license being in effect an easement.109

What is in form a covenant merely-that is, an agreement under seal-may operate as the grant of an easement, when this is clearly the intention of the parties.110

106 Bean v. French, 140 Mass. 229; Whitney v. Richardson, 59 Hun (N. Y.) 601.

107 Banghart v. Flummerfelt, 43 N. J. Law, 28; Wilmington Water Power Co. v. Evans, 166 Ill. 548; Huff v. McCauley, 53 Pa. St. 206, 91 Am. Dec. 203, Finch's Cas. 76; Dorris v. Sullivan, 90 Cal. 279; Harris v. Miller, Meigs (Tenn.) 158, 33 Am. Dec. 138; Bonelli v. Blakemore, 66 Miss. 136, 14 Am. St. Rep. 550; Rice v. Roberts, 24 Wis. 461, 1 Am. Rep. 195.

108 Van Horn v. Clark, 56 N. J. Eq. 476; Texas & St. L. R. Co. v. Jarrell, 60 Tex. 267; Parkhurst v. Van Cortland, 14 Johns. (N. Y.; 15, 7 Am. Dec. 427; Wilson v. Chalfant, 15 Ohio, 248, 45 Am. Dec. 574; Pierce v. Cleland, 133 Pa. St. 189.

109 See ante, § 304.

110 Gale, Easements (7th Ed.) 72; Holms v. Seller, 3 Lev. 305; Rowbotham v. Wilson, 8 H. L. Cas. 348, 362; McCarthy v. Nicrosi, 72 Ala. 332, 47 Am. Rep. 418; Kettle River R. Co. v. Eastern Ry. Co., 41 Minn. 472; Willoughby v. Lawrence, 116 Ill. 11, 56 Am. Rep. 758; Harris v. Dozier, 72 Ill. App. 542; Hogan v. Barry, 143 Mass. 538; Ladd v. City of Boston, 151 Mass. 585, 21 Am. St. Rep. 481;

An agreement between adjoining owners of land for the construction or use of a party wall, since it involves an interest in land, must be in writing,111 and an oral agreement amounts merely to a revocable license.112 A part performance of an oral agreement by the construction of the wall will, however, in some states, be sufficient to create an easement of support in favor of the person building a wall partly on another's land,118 and also to give him the right to recover from the adjacent owner a part of the cost upon user by the latter. 114

Grant with appurtenances.

A man cannot have an easement over his own land, but he may have been accustomed to exercise over one part of his land certain proprietary rights for the benefit of another part, which would be easements were the two parts the property of different owners. Rights so exercised by an owner of land over one part thereof for the benefit of another part have received the convenient designation of "quasi easements," and the part of the land benefited is known as the "quasi dominant tenement," while the part over which the right is exercised is known as the "quasi servient tenement."

The existence of such a quasi easement is frequently important in determining whether there is an implied grant of an actual easement when the quasi dominant and quasi servi

Wetmore v. Bruce, 118 N. Y. 319; Barr v. Lamaster, 48 Neb. 114, Warren v. Syme, 7 W. Va. 475; Norfleet v. Cromwell, 64 N. C. 1. 111 Tillis v. Treadwell, 117 Ala. 445; Rice v. Roberts, 24 Wis. 4C1, 1 Am. Rep. 195.

112 Hodgkins v. Farrington, 150 Mass. 19.

113 Wickersham v. Orr, 9 Iowa, 253, 74 Am. Dec. 848; Rawson ▼. Bell, 46 Ga. 19; Hammond v. Schiff, 100 N. C. 161; Miller v. Brown, 33 Ohio St. 547.

114 Rice v. Roberts, 24 Wis. 461, 1 Am. Rep. 195; Rawson v. Beil 46 Ga. 19; Rindge v. Baker, 57 N. Y. 209, 15 Am. Rep. 475.