70 rJGHT TO CONSlTvUCT DRAIN, 



CHAPTER III. 



EASEMENTS. 



" Terms dc la Ley " defines an easement to be a privilege that one 

 neijrhltonr liatli of another by charier or prescription, without profit, 

 and it instances " as a way or sink through his land, or such like." To 

 establish the presumption of a grant of an easement, it must appear 

 that the enjoyment was with the acquiescence of him who was seised 

 of an estate of inheritance ; for a tenant for life or years has no power 

 to grant such right, except as against himself {Bright v. ]YaRer), 

 {Daniel v. Korlh) {Barker v. Richardson). And iw Bayley J.; in 

 Ilciclins Y. Shippam: "A right of way or a riglit of passage for water 

 (where it does not create an interest in the land) is an incorporeal 

 right, and stands upon the same footing with other incorporeal rights, 

 such as right of common, rents, advowsons, &c. It lies not in livery 

 but in grant, and a freehold interest in it cannot le "created or ]jassed 

 (even if a chattel interest may, which I think it cannot) othenvise than 

 ly decd.'^ 



In this case the action was stopping up a drain, and the declaration 

 claimed the right as a licence and authority granted to the plaintiff's 

 landlords, their heirs and assigns, to make the drain, and have the foul 

 water pass from their scullery through it across the defendant's yard. 

 One of the counts claimed it indefinitely, without fixing any limits ; 

 others restricted it either to the time the defendant should continue 

 possessed of his yard or house, or so long as it should be requisite for 

 the convenient occupation of the plaintiff's house ; some stated, as part 

 of the consideration, that defendant's landlords should do some repairs 

 to the defendant's premises ; and others did not. It appeared in evidence 

 that the licence to construct and continue the drain was by parol, and 

 it was held that as the right claimed in the declaration was a freehold 

 riglit, assuming that it was an easement only upon the land of another, 

 and not an interest in land, it could not be created without deed. 

 Bayley J. said, after elaborately reviewing all the authorities, " We are 

 of opinion that although a parol licence might be an excuse for a 

 trespass till such licence was countermanded, that a right and title to 



