Act, divested from them, and vested in the customary heir or devisee (1). Copyholds may be held, like freeholds, either in severalty or Estates in jointly, and either in possession or in expectancy, and either for copyholds. a legal and equitable, or a merely equitable, estate. In the case of an equitable estate in copyholds, the trustee in whom the legal estate is vested is of course a tenant on the court-rolls of the manor. Curtesy and dower (freebench as it is called) do not exist in copyholds in the absence of special custom. Where freebench exists it generally consists of a life interest in one divided third part of the lands. The descent of copyholds is governed by custom. An in- Descent of teresting case on this subject may here be noticed. The facts copyholds. were as follows: The custom of a manor was stated to be that all copyholds descended to the youngest son or daughter, brother or sister, uncle or aunt. A tenant died intestate seised of customary lands of the manor leaving neither son, daughter, brother, sister, uncle, nor aunt, but leaving sons of deceased uncles. The Court decided that the youngest son of the youngest uncle was not entitled, and that the heir-at-law was entitled to the lands (2). The judge in delivering judgment said : "Here is a custom of a manor which is as much a part of the law of the realm as any other law by whatever authority it is established. The Courts take notice of borough English and of gavelkind, and have several times recognised these particular customs. Nor has any one ever questioned that the customs of a manor are of equal authority with, and as equally binding as the common law. Their antiquity is perhaps greater than that which can be ascribed to the common law. It was admitted by Chief Justice Cockburn, in Muggleton v. Barnett, that customs are a law of themselves, and I know of no mode of construing customs but the literal mode. "The custom of the manor is, that upon the death of a tenant his youngest son, if there be one, shall take; if not, his youngest daughter, if there be one; if not, his youngest brother or sister, uncle or aunt, if any such there be; but if there be none there is an end of the custom. It is as if it had never existed, and the inheritance must descend according to the course of the common law." (1) In re Mill's Trusts, 37 Ch. D. 312, affirmed 40 Ch. D. 14; and see Re Franklyn's Mortgages, W. N. (1888) 217. The validity of any disposition of the property made by the VOL. I. personal representatives before the (2) In re Smart. Smart v. Smart, Definition. Principal kinds of incorporeal hereditaments. Easements. CHAPTER XVI. INCORPOREAL HEREDITAMENTS. An incorporeal hereditament is defined by Blackstone as a right issuing out of a thing corporate (whether real or personal) or concerning or annexed to, or exercisable within the same. This is illustrated by the case of an annuity charged on land. Here we have the corporeal thing itself on the one hand, which can be seen and touched, and on the other hand, the incorporeal thing, the right—something collateral to the land, which can never be the object of sense, and is not capable of being shewn to the eye, or of being delivered into bodily possession. Incorporeal hereditaments are either appendant, appurtenant, or in gross (1). The principal kinds of incorporeal hereditaments which are of importance at the present day are easements, advowsons, tithes (now chiefly tithe-rent charges), rents and commons (2). Advowsons and tithes may be discussed more appropriately in the portion of this work devoted to Ecclesiastical Law (post, pp. 1136, 1140). The other classes of incorporeal hereditaments which we have mentioned shall now be briefly considered in their order. An easement (3) is a privilege without profit, existing in respect of their several tenements, which the owner of one neighbouring tenement, which is called the dominant tenement, has over another, which is called the servient tenement, to compel the owner thereof to permit to be done, or to refrain from doing, something on such tenement for the advantage of the dominant owner. An easement has indeed been described as rather a fringe to property than property itself (†). (1) Williams' Real Property, pt. ii. cap. 4, ad init. (2) Under the term incorporeal hereditaments, Mr. Joshua Williams places remainders and reversions, and treats of the incorporeal hereditaments above-mentioned as purely incorporeal. (3) Tudor's Real Property, 3rd ed. p. 166; Sury v. Pigot; Gale on Easements, 6th ed. by G. Cave, p. 6, to which reference is hereafter made in this chapter, citing Termes de la Ley, tit. Easements. (An easement differs from an obligation, inasmuch as it gives a right over the land of another, while an obligation gives a right against the owner. An easement differs from a licence in a similar way. Both the benefit and the burden of an easement are The essential qualities of easements, properly so called, are Easements. thus distinguished in Gale on Easements (1). 1. Easements are incorporeal. 2. They are imposed upon corporeal property, and not upon the person of the owner. 3. They confer no right to a participation in the profits arising from the servient tenement. 4. They must be imposed for the benefit of corporeal property. 5. There must be two distinct tenements, the dominant to which the right belongs, and the servient upon which the obligation is imposed (2). Easements are divided into affirmative and negative. Those coming under the head of affirmative easements authorize the commission of acts, which, in their very inception, are positively injurious. The following are some of the instances of affirmative easements mentioned in the standard work on the subject. Rights of way (3). Right to make a surface uneven by working mines in such a manner as to let it down. Right to go on a neighbour's close, and draw water from a spring there. Right to use or to affect water of a natural stream in manner not justified by natural right. any Right to discharge water or other matter on to a neighbour's land. Right to carry on an offensive trade (1). Negative easements are injurious consequentially only-restricting the owner of the soil in the exercise of the natural rights of property. The principal negative easements are stated in Gale on Easements to be the acquired right to receive light and air by windows, and the acquired right to support of neighbouring soil (5). Easements may also be divided into continuous and dis annexed to land, while a licence, unless coupled with a grant, is personal to both grantor and grantee, and neither binding on the assignee of the licence, nor generally assignab e by the licensee : Gale on Easements, 6th ed. p. 2, citing Kensit v. Great Eastern Railway Co., 27 Ch. Div. 122. (1) Gale on Easements, 6th edit. p. 6, et seq. (eited with approval Mounsey v. Ismay, 3 H. & C. 486). (2) Gale on Easements, 6th ed. p. 19, et seq. (3) See Thomas v. Owen, 20 Q. B. D. 225; Roe v. Siddons, 22 Q. B. D. 224. (*) And see, for a lengthy enumeration of such easements: Gale, 6th ed. p. 20. (5) See on this subject Lord Blackburn's judgment in Dalton v. Angus, 6 App. Cas. 740, 821. Easements. continuous, and into apparent and non-apparent servitudes or Provisions of Conveyancing Act, 1881, as to easements. easements. Continuous easements are those of which the enjoyment is or may be continued without the necessity of any actual interference by man, as a waterspout, or right to light and air. Discontinuous easements are those the enjoyment of which can only be had by the interference of man, as rights of way or a right to draw water. Apparent easements are those the existence of which is shewn by external works, as a window, a watercourse. Non-apparent easements are those which have no external sign of their existence, as the prohibition to build on particular land, or to build above a certain height. Easements are created, or arise, either by express grant, or by implied grant, or by prescription. An express grant of an easement, unless by will, must be made by deed of grant. The Conveyancing Act (1) now provides with regard to cases after the commencement of the Act, 1st of January, 1882, that a conveyance of freehold land to the use that any person may have, for an estate or interest not exceeding in duration the estate conveyed in the land, any easement, right, liberty, or privilege in, or over, or with respect to that land, or any part thereof, shall operate to vest in possession in that person that easement, right, liberty, or privilege, for the estate or interest expressed to be limited to him. Prior to this enactment, an easement, or other similar interest could not be created by limitation of a use under the Statute of Uses (as to which, see ante, p. 17). An equitable right to an easement may however be created by an agreement (2). An easement or quasi-easement may arise by implied grant where the owner of property sells and conveys a portion of that property, reserving the remaining portion to himself. The rules respecting the implication of an easement under such circumstances were stated in a well-known judgment by the late Lord Justice Thesiger, as follows:-"Two propositions may be stated as the general rules governing cases of this kind. "The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent (1) 44 & 45 Vict. c. 41, s. 62. (2) See Gale on Easements, 6th ed. pp. 25, 58, and see McManus v. Cooke, 35 Ch. D. 681. easements (by which, of, course, I mean quasi easements), or, in Easements. other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. "The second proposition is that, if the grantor intends to reserve any right over the tenement granted it is his duty to reserve it expressly in the grant (1). "By an implied obligation or an implied right I mean this: an obligation or right arising not from the express words of an instrument, nor from that which, having regard to the circumstances, must be considered the true meaning and effect of the words in the instrument; but that obligation or that right. which results from the position into which the parties have. placed themselves by the contract. For instance, where one man grants to another a house, then primâ facie he cannot interfere with that which he has granted; there is an implied obligation on him not to interfere with that which he has granted; namely, the house and enjoyment of the house. That obligation arises, I repeat, not from any interpretation of the conveyance, but from the duty which is imposed on the grantor in consequence of the relation which he has taken upon himself towards the grantee" (2). An easement also arises by implied grant in the case of what is called an easement of necessity. An instance of an easement of this kind occurs in the case of a grant of land to which access can be obtained only by passing over other land of the grantor, the grant being implied of a right of way over the grantor's land to the land granted. The principal easements which are regarded by Mr. Gale as of sufficient importance to require separate discussion are rights to water, rights to light and air, rights of way, rights to support from adjoining soil and houses (3). The right to receive a flow of water in a natural stream, and Water. transmit it in its accustomed course, is an ordinary right of property-a natural right; the right to interfere with the accustomed course, either by penning it back upon the land (1) Wheeldon v. Burrows, 12 Ch. D. 31, 49. (2) Birmingham, Dudley, and District Banking Company v. Ross, 38 Ch. Div. 295 312. (3) Gale on Easements, 6th ed., see also Chapters v. and vi. as to legalisation of private nuisances, and |