by the dominant as against the servient owner by the exhibition of trade notices or the like. Or, again, the situation of the dominant tenement might be in a neighbourhood notoriously occupied by persons who plied a particular trade which required a good light— as of old were the watchmaking and silk-weaving quarters of London. In such cases it is possible that, in considering whether the obstruction complained of amounted to a nuisance, one circumstance to be taken into account should be the particular user of the premises. It does not seem conceivable, however, according to the general law governing prescriptive claims, that an exceptional user unknown to the servient owner could be asserted against him.

It is true that in Ambler v. Gordon Bray J. decided that no user by the dominant owner, whether with or without the knowledge of the servient owner, could give rise to such a prescriptive right as would enable the dominant owner to assert that to be a nuisance which otherwise would not be such. But I do not understand that very learned judge to say, at all events where a whole neighbourhood carried on a trade requiring exceptional light, that that circumstance should not be taken into account at all in an action for nuisance to lights.

FRANCIS R. Y. RADCLIFFE.

1 [1905] 1 K. B. 417.

259

IN

THE TRUE NATURE OF AN EASEMENT.

N the last number of the LAW QUARTERLY REVIEW Mr. Arthur Underhill puts the question, 'Can an easement be granted in perpetuity without words of limitation?' and he answers it in the affirmative. He is probably right, but the question is not free from doubt.

In the first place, the true nature of an easement is a matter of dispute, for the old books do not say much about it. Lord Coke gives a short description of the different kinds of ways (Co. Litt. 56 a) without telling us what the nature of a right of way is. He also refers more than once to incorporeal hereditaments (or incorporeate inheritances), and gives as examples, 'advowsons, commons, &c.' (Co. Litt. 9a), 'advowsons, rents, commons, estovers, &c.' (49a, 169 a); but in none of these passages does there seem to be any reference to ways or other easements as belonging to the class of incorporeal hereditaments. The only passage throwing any light on the point under discussion which I can find is the remark (Co. Litt. 237 b) that the rule as to descents tolling entries applies only to such tenements as be corporeall, and do lye in livery,' and not to inheritances which lye in grant, as advowsons, rents, commons in grosse, and such like, which be inheritances incorporeall.' It seems to me that Lord Coke would not have especially mentioned commons in gross without good reason, and that, if we apply the rule inclusio unius, &c., to what he says, we may safely assume that commons appendant and appurtenant were not, in Lord Coke's day, regarded as incorporeal hereditaments. Now the essential difference between a right of common in gross and a right of common appendant or appurtenant is that the first has a separate existence and the other two have not. If this is the test, an easement is not, according to Lord Coke, an incorporeal hereditament, for it can only exist as appurtenant to land. This conclusion seems to be strengthened by the rules of descent under the old law (Watkins on Descent, 61 seq.). And if a perpetual easement is not a hereditament it seems to follow that words of limitation are not required for its creation.

Mais nous avons changé tout cela. In Blackstone's Commentaries 1

1 Vol. ii, p. 35.

(1765) ways are classified as incorporeal hereditaments. So in Blythewood and Jarman's Conveyancing1 (1827). Later textwriters (with the exception of Mr. Challis) classify all easements as incorporeal hereditaments, and there are numerous modern decisions which assume, as a matter too clear for argument, that an easement (or at all events a right of way) is an incorporeal hereditament 3. In the Encyclopaedia of Forms and Precedents (vol. v, pp. 495 seq.) it is stated as the result of these decisions that an easement is an incorporeal hereditament and a tenement.

It is difficult to account for this change, but it may have arisen from a misconception on the part of Blackstone or later textwriters. He classifies not only commons in gross, but also commons appendant and appurtenant, as incorporeal hereditaments, although this is probably inaccurate, if the passage already cited from Coke bears the interpretation above suggested. In treating of ways (the only rights in the nature of easements which he notices) Blackstone gives as an example a right of way granted to a man for life as a personal right, but does not refer to perpetual ways in gross, although such rights were recognized by law in his time. In the Termes de la Ley (1629) under Chimin the author thus distinguishes between ways in gross and ways appendant:'A way in grosse may bee that which the Civilians call personall, as when one covenanteth for a way through the ground of another man, for himselfe and his heirs. A way appendant on the other side may be that which they call reall, as when a man purchaseth a way through the ground of another man for such as doe dwell or shall dwell in this or that house, or that be the owners of such a manor for ever 4.'

Ways in gross are also referred to by Dodridge J.5 and by Chief Baron Gilbert 6. In Senhouse v. Christian, where a way in gross was granted to the ancestor of the defendant, his heirs and assigns, no question was raised as to the validity of the grant, or as to the title of the defendant to the way by descent from the original grantee the only question was as to the nature of the acts authorized by the grant. A way in gross, if granted to a man

1 First ed., vol. iv, p. 221.

2 Joshua Williams (R. P., 3rd ed., p. 265); Davidson (Prec. in Conv., vol. ii, pt. i, p. 548, n.); Leake (Prop. in Land, 53); Goodeve (R. P., 1st ed., p. 351).

3 Hill v. Midland Railway, 21 Ch. D. 143; Great Western Railway v. Swindon &c. Railway, 22 Ch. D. 677; 9 App. Ca. 787; McManus v. Cooke, 35 Ch. D. 681; Jones v. Watts, 43 Ch. D. 574; Lord Hastings v. North-Eastern Railway [1898] 2 Ch. 674; [1899] 1 Ch. 656; [1900] A. C. 260.

It will be noticed that according to this description words of limitation are required for the creation of a perpetual way in gross, but not for the creation of a way annexed to land, thus confirming the conclusion arrived at above (p. 259). 5 W. Jones, 127. 6 Uses, 281. 'I T. R., 560. A way in gross does not seem to be an easement: see the definition of that word in the Termes de la Ley, according to which an easement is a right which

8

and his heirs, is clearly an incorporeal hereditament, and this probably accounts for the fact that in the Termes de la Ley 1, Blackstone, and other old books, 'ways' are included among incorporeal hereditaments. If this is the true explanation, it seems to follow that modern writers and judges have been somewhat hasty in classifying easements as incorporeal hereditaments. The law, however, is, it is submitted, clearly so settled.

It is this change in the legal conception of the nature of an easement that makes it difficult to answer Mr. Underhill's question, for if a perpetual easement is not only a hereditament, but a tenement (as was held by Byrne J. and the Court of Appeal, and taken for granted by the House of Lords in the case of Lord Hastings v. North-Eastern Railway, above cited), how can it be created without words of limitation? Coke tells us that a right of way lies in grant (Co. Litt. 169 b), and that if one grants lands or tenements, advowsons, commons or the like, and expresses or limits no estate, the grantee takes only an estate for life (Co. Litt. 42 a). Words of limitation are required to make an estate of inheritance in all feoffments and grants (Litt. s. 1). So that we are met with this difficulty: supposing that (as appears to be the case) a perpetual easement could under the old law be annexed to a piece of land without words of limitation, for the reason that such a right was not an incorporeal hereditament, does the same rule apply now that easements have been held by high judicial authority to be incorporeal hereditaments? Personally I agree with Mr. Underhill that words of limitation are probably not required for the creation of a perpetual easement, even at the present day, but it would require some courage to express a confident opinion on the point.

I cannot find anything in the decision of Byrne J. in Rymer v. McIlroy [1897] 1 Ch. 528, to justify the conclusion which Mr. Underhill draws from it. The decision seems to have been more or less anticipated by Mr. Justice Willes 2.

Mr. Underhill thinks that the practice of conveyancers in using words of limitation in the creation of easements de novo has been merely ex abundanti cautela. No doubt caution is (or formerly was) the badge of all our tribe, but in this particular case it seems to be justified. If Mr. Underhill were instructed to settle a deed granting an easement de novo, it is fair to assume that he would adopt one

implies the existence of a servient and a dominant tenement. A learned note on ways in gross by Mr. (afterwards Mr. Justice) Willes is to be found in Gale on Easements.

1 Sub v. Enheritance or (in the later editions) Inheritance: 'Inheritance incorporate are advowsons, villaynes, wayes, commons, courts, fishings, and such like that are or may be appendant or appurtenant to inheritance corporate.' The words 'that are or may be' are somewhat obscure.

2 See his addition to Gale on Easements, II.

of the forms set forth in the fifth volume of the Encyclopaedia of Forms and Precedents, and limit the easement to the grantee, his heirs and assigns. In other words, he would not care to make a doubtful experiment at the risk of his client. That is why I took exception to Mr. Brickdale's form1.

A word as to the decision in Re Brotherton's Estate 2 referred to by Mr. Underhill. In that case there were two adjoining settled estates, each of which had appurtenant to it a right of way over the other; the tenants for life desired to put an end to these easements, and applied to the court to sanction an exchange of them under the Settled Land Acts by mutual conveyances, the effect of which would have been to extinguish the easements. It was contended that as tenants for life can exchange 'land,' and as 'land' in the Settled Land Acts includes incorporeal hereditaments, it follows that they can exchange easements. Joyce J. refused the application. He expressed his approval of Mr. Challis's view that easements are not incorporeal hereditaments, but rights appurtenant to corporeal hereditaments, a view which I venture to think was correct in the days of Lord Coke, but is no longer so, having regard to the decisions cited above 3. Terms of art occurring in an Act of Parliament must be construed according to the sense in which they were understood by experts at the time the Act was passed, and the expression 'incorporeal hereditament' in the Settled Land Act must be construed in the sense commonly attributed to it by conveyancers and judges in 1882, not with reference to its meaning in 1628.

There are passages in the judgment of Joyce J. which seem to imply some doubt in the mind of the learned judge whether, in a case where the owners of two adjoining estates have easements over one another's lands, cross releases of the easements can be considered an exchange of easements, and whether such a transaction ought not properly to be described as an exchange of releases. If the suggested difficulty arises from the fact that when an easement is released to the owner of the servient tenement it is extinguished, the doubt is not well founded; it was suggested and rejected nearly three hundred years ago, for in Perkins's Profitable Book (ss. 266-7) we read :

'If a man release his estovers, which he hath yearly to take in a wood, &c., and deliver the release in exchange for land given to him in exchange for the same release, it is a good exchange; and yet the release takes effect by way of extinguishment of the estovers. But it is as good advantage and profit to the tenant

1 Land Transfer Acts (2nd ed.), 590. 2 [1907] W. N. 230; [1908] W. N. 56. Page 260, note 3.