DROIT. This word signifies right. Droit-droit signifies. therefore, a right upon a right, or a double right, and was used to denote the title of one in whom the right of possession and the right of property were combined.

The phrase droitural was used of actions which were brought upon a writ of right, as distinguished from that other group of actions called possessory, which were brought upon the fact of, or right to, the possession merely.

DROITS CIVILS. In French Law, denote private rights, and the exercise of which is independent of the status (qualité) of citizen. Foreigners enjoy them, and the extent of that enjoyment is determined by the principle of reciprocity. Conversely, foreigners, although not resident in France, may be sued on contracts made by them in France, and (unless possessed of sufficient real property in France) are obliged to give security. This provision meets such a case, semble, as that of Leroux v. Brown, 12 C. B. 801.

DRUNKENNESS. Where total, is a qualified incapacity for contracting; and where the drunkenness, being partial, is caused by the other contracting party to the fraud of the intoxicated person, then it is also a ground for avoiding the contract. And with reference to crime, habitual drunkards are placed under police supervision; and persons committing any crime while in a state of temporary drunkenness are not excused thereby, but the circumstance at the very most goes only in extenuation of the offence. 1 Hawk. c. 1, s. 6; Arch. Crim. Pl. 18.

DUCHY COURT OF LANCASTER: See title CHANCELLOR.

This

DUM FUIT INFRA ÆTATEM. was a writ which lay for the recovery of lands which a man had alienated while under age. The writ lay also for the heir of the infant alienor.

DUM FUIT IN PRISONÂ.

This was a

writ which lay for the recovery of lands which a man had alienated while in prison or under duress.

DUM FUIT NON COMPOS MENTIS. This was a writ which lay for the recovery of lands which a man had alienated while insane.

DUPLICATE. Any copy or transcript of a deed or writing is called a duplicate.

DURESS. Is of two kinds, being either (1.) To the person; or (2.), To the goods. The object of placing either the person or the goods under duress being to extort money in excess of what (if anything) is rightfully owing, the law holds that the excess so obtained may be recovered back as money had and received; also, that duress (like fraud) vitiates all contracts made under its influence.

In criminal

DYING DECLARATIONS. law the dying declarations of the injured person, being an adult, are admissible, but being an infant of very tender years are not admissible in evidence, the reason for the exclusion of the latter being that the child's mind is not affected by the prospect of death, as the adult's is supposed to be.

DYING WITHOUT ISSUE. Formerly, if lands were given to A., and if he died without issue, then to B. in fee simple, A. took an estate tail by implication, and B. an estate in fee simple in remainder, which, however, A. could defeat. But now, under 1 Vict. c. 26, under the same words, A. would take an estate in fee simple defeasible in case he left no issue when he died, and B. would take an estate in fee simple that was executory upon the same event, namely, A.'s leaving no issue at the time of his, A.'s, death.

EALDERMAN-continued.

but with the changes in society which have intervened between the Anglo-Saxon and the present times, the eminency of the office has been comparatively depreciated, although the aldermanic gown is still a distinction to be aspired at.

EAR-MARK. Personal property is said to be ear-marked when it can be identified, that is, distinguished from other personal property of the same nature. As a general rule, money has no such distinguishing feature, or ear-mark.

EARNEST. In Roman Law called arrha, is something given as evidence of the contract in Roman Law, and for the purpose (in certain cases) of binding the bargain in English Law. As the name denotes, it is given to shew that the purchaser is in earnest, and not either trifling or intending a deception. For this purpose it is not infrequently exacted by tradesmen from unknown customers giving them orders to make goods; it is originally no part of the price of the goods, and therefore is forfeited on the customer's default; but if he duly accepts and pays for the goods when made, then the earnest counts as part of the price. The giving of an earnest is one of the three alternatives prescribed by the Statute of Frauds, 29 Car. 2. c. 3, s. 17, for the validity of a contract for the sale of goods of £10 or upwards.

EASEMENTS. An easement is a privilege, without profit, which one neighbour hath of another (Termes de la Ley, 284); or which the owner of one tenement as such has over an adjoining tenement or the owner thereof as such, the former tenement being for this purpose called the dominant tenement, and the latter the servient tenement.

Easements are in derogation of natural rights, in whatever way such rights may have arisen, whether,

(1.) In respect of private or individual ownership; or,

(2.) In respect of public or common oc

cupation,

Thus, a private owner, subject only to the maxim sic utere tuo ut alienum non ladas, has, in virtue purely of his ownership, an absolute power of using, or right to use, his property in whatever way he pleases, to the full extent that his interest therein extends, that is to say, to the full extent of his life-estate if he is a tenant for life, and to an unlimited extent if he is a tenant in fee simple or in fee tail absolute; and an easement in or over that estate or interest is, to the extent that the easement extends, a restriction upon that absolute right or power of user. And again, public

or common occupiers, e.g., the residents in any city, town, or village, have, in virtue purely of their occupation, certain natural rights analogous to rights arising out of property, e.g., a right to air or to water, to the extent that their occupation-interest extends, that is to say, to the extent of natural existence; and an easement in or over that occupation-interest is, to the extent that the easement extends, a restriction upon those natural rights.

Easements consist in patiendo or in non faciendo, and not in faciendo; in other words, easements extend thus far in their general effect, namely, that they oblige the private owner of the servient tenement, not in his personal capacity, but in virtue of that his connection with the servient tenement, to permit, or in no active sense impede, the owner or occupier of the dominant tenement as such in the enjoyment of his easement over the servient tenement, to the extent that such easement may extend; but they oblige no further, e.g., they do not oblige the owner of the servient tenement as such in any active sense to augment the measure of the easement, or even to facilitate the enjoyment of it, as, for example, by widening or clearing out a dam or watercourse, scouring a sewer, and such like. Pomfret v. Ricroft, 1 Wms. Saund. 557.

Easements are of various kinds, being either,

(1.) Easements of necessity; or,

(2.) Easements of convenience. An easement of necessity is one without which one's neighbour or the owner of the property adjoining could not pursue his trade or enjoy his property at all, and not merely with less readiness or comfort; and with reference to easements of that kind, the law implies or assumes a grant of them, and dispenses with the production of the grant. An easement of convenience is one by which one's neighbour, or the owner of the property adjoining, pursues his trade or enjoys his property in a readier or more comfortable way, but which he might also do without, although not so well.

An easement which is merely one of convenience under certain circumstances may, under certain other circumstances, be one of necessity, or almost of necessity. Thus, given the natural state of land, the only easement of necessity is a road or right of access to it of the simplest character over the adjoining land when it is surrounded by such latter land and there is no public highway running to it; and under such a state of circumstances all other easements, whether in the shape of ways, or in other shape or shapes, are easements of convenience merely. But given an artificial

EASEMENTS-continued.

state of land, e.g., land which has been and is applied to manufacturing processes, the easement of necessity in the shape of a right of access to it under the like circumstances as above continues to exist; but that easement, instead of being now a way of the simplest character, is enlarged into a wider way, for numerous purposes other than the mere right of personal access, and although to the extent of such enlargements of it, it would be an easement of convenience and not of necessity in the case of the natural state of land, yet in the supposed artificial state of the land, the easement is to its full extent an easement of necessity, or almost of necessity, and not of convenience merely. And similarly, rights of consuming water, rights of fouling water, rights of fouling air, may under given circumstances be easements of necessity, although in the natural state of land they would be easements of convenience merely. And such being the wavering character of the distinction between easements of necessity and easements of convenience, it is useless to make that distinction, although a true one, the cardinal division in an enumeration of the varieties of easements, which are much more usefully referred to the natural rights of user, upon which they are restrictions; and upon that principle they may be enumerated generally as follows:

I. With reference to Air. Every private owner and general occupier having a na tural right, recognised by the Common Law of England, to PURITY OF AIR, the easement relative to the purity of air is the following one, namely

(1.) A right to pollute the air (Flight v. Thomas, 10 A. & E. 590) to an extent justified by the customary business of the locality (Walter v. Selfe, 4 De G. & Sm. 315), but not further (St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 650); and it makes no difference whether the party complaining of the pollution comes to the nuisance or not (Bliss v. Hall, 4 Bing. N.C. 183); at any rate, where material injury, as distinguished from mere personal discomfort, is the result of it. St. Helen's Smelting Co. v. Tipping, supra.

Again, no private owner or general occupier having a natural right recognised by the Common Law of England to the FREE PASSAGE OF AIR, the easements relative to the passage of air are the following two, namely:

(2.) A right to the free passage of air (Trahern's Case, Godb. 233); but such a right seems now to be discouraged by the law. Webb v. Bird, 10 C. B. (N.S.) 268.

(3.) A right to send noise through the air. Roskell v. Whitworth, 19 W. R. 804.

(4.) A right to the free passage of light (Aldred's Case, 6 Rep. 54), which right, if it arise in virtue of the Prescription Act, is an absolute and indefeasible right as well for the present as for all possible future purposes (Yates v. Jack, L. R. 1 Ch. App. 295); but if it arise from express grant, the right is limited to the amount of light accustomed to pass at the time of the grant (Yates v. Jack, supra); and if it arise from implied grant, as where a person sells a house with windows overlooking land which he retains, the right is limited in like manner as upon an express grant. If, however, the easement is exceeded, that does not entitle the servient owner to obstruct the free passage of the accustomed light, although he is unable without doing so to obstruct the passage of the excess (Tapling v. Jones, 11 H. L. C. 290); and the dominant owner, in case the accustomed light is obstructed, may in Equity have either damages alone, in a few rare cases (Heath v. Bucknall, L. R. 8 Eq. 1), an injunction and damages both (Straight v. Burn, L. R. 5 Ch. App. 166); and at Law he may always have damages, and in some cases an injunction also. See C. L. P. Act, 1854, s. 79.

or

III. With reference to Water. Every private owner or general occupier, being a riparian owner or occupier, having certain natural rights recognised by the Common Law of England in respect of natural streams, whether constant or intermittent, of a known and definite course, and not being artificial or underground, that is to say, the three following natural rights, namely:

(a.) A right to the NATURAL FLOW of

the water;

(b.) A right to the NATURAL PURITY of the water; and

(c.) A right to take the water for NATURAL USE, and whether for the entire or partial consumption of the water taken,

The easements relative to those respective natural rights are the following two, namely:

(5.) A right to divert the water (Bealey v. Shaw, 6 East, 209), including the right to a watercourse; and also a right to pen back the water (Wright v. Howard, 1 Sim. & S. 190); including the right to flood another's land in penning back the water.

(6.) A right to pollute the water. Hall

The easements which are relative to these respective natural rights are the following three, namely:

(7.) A right of support from underground water (Popplewell v. Hodkinson, L. R. 4 Ex. 248);

(8.) A right of support for land built upon, or for buildings (Humphries v. Brogden, 12 Q. B. 749), or otherwise rendered more liable to subside (Harris v. Ryding, 5 M. & W. 71); and conversely

(9.) A right to cause a subsidence of land. Chadwick v. Trower, 6 Bing. N. C. 1.

V. With reference to Ways. Every private owner or general occupier having an exclusive natural RIGHT OF WAY recognised by the Common Law of England over and throughout his private property, or occupation ground, the easements relative to that natural right are the following two, namely:

(10.) A private right of way, being a right of way in an adjoining private owner or in an adjoining general occupier; and

(11.) A public right of way, being a right of way in the king's subjects generally in respect of their general occupation of the country.

These two easements differing in this respect, that while a public right of way, wherever it exists, is unlimited in extent, a private right of way, on the contrary, may be either limited or unlimited in extent, as being either a footpath, a bridlepath, a carriage way, a drift way, or any other way.

Easements being considered odious in law, because they are restrictions upon the free use of property in others, no other casements than those enumerated have been established, the following attempts to create new casements having failed,

(1.) A right of prospect (Aldred's Case, 9 Rep. 58; Att.-Gen. v. Doughty, 2 Ves. 453);

(2.) A right of view to a shop-window (Smith v. Owen, 35 L. J. (Ch.) 317);

(3.) A right of undisturbed privacy, (Turner v. Spooner, 30 L. J. (Ch.) 803; Re

EASEMENTS-continued.

Penny and the South Eastern Ry. Co., 7 E. & B. 660); and

(4.) A right to the free passage of wind to a windmill. Webb v. Bird, 10 C. B. (N.S.) 268.

The apparent easement in these four cases, and in all such like cases, where any such exists, is in the nature of a licence only, particular or general, which is personal to the licensor and not binding on his successors in the quasi servient tenement. See title LICENCE.

Easements must be proved either by the production of the instrument which creates them, or (in the case of its loss), by prescription, whether at the Common Law, or (but in certain cases only) under statute. And those two modes of proof are also the modes of the acquisition of easements. The most usual instrument whereby an easement is created is a deed of grant, which again may either in so many words expressly create the easement (in which case the easement exists by reason of the express grant, and the production of such grant is the proof of its existence), or only impliedly create the casement (in which case the casement exists by reason of the implied grant, and the proof of the existence of such grant lies either in the production of an express grant involving as a necessary incident to it the implied grant of the particular casement, and the withholding of which easement would therefore be in derogation of the express grant, or else in the proof of circumstances rendering the particular easement indispensable or necessary to the beneficial enjoyment of the land expressly granted.) Also, the instrument of the creation of the casement may be a will, an Act of Parliament, or a custom even; but such modes are not usefully distinguished from a grant by deed.

Again, the easement may arise by prescription, and that, either

(1.) At the Common Law, that is to say, upon proof of uninterrupted user, for twenty years (Mounsey v. Ismay, 3 H. & C. 486), which is considered as implying a grant, in the absence of contrary evidence; or

(2.) Under the Prescription Act (2 & 3 Will. 4, c. 71), which, however, relates to only a limited number of easements, that is to say, the following:

(a.) Any way or other easement ejusdem generis (Webb v. Bird, 12 C. B. (N.S.) 268; 13 C. B. (N.S.) 841);

(b.) Any watercourse;

(e.) The use of any water; (d.) Access of light; and

(e.) Use of light.

The statute has provided that for the

EASEMENTS continued. acquisition of any sort of way, or of any watercourse, or of the use of any water, there shall be actual enjoyment thereof without interruption for the full period of twenty years, and if proof of such enjoyment is produced, any adverse proof purporting to shew merely that the easement had its origin in respect of time on this side of the reign of Richard I., although beyond the period of twenty years, shall be excluded, but any adverse proof of a different effect is admissible, unless in cases where proof of the actual enjoyment of the easement without interruption for the full period of forty years is produced, in which latter class of cases the only adverse proof admissible is that of some consent or agreement in writing (under hand and seal, or under hand only), expressly granting the right of enjoyment (s. 2); and for the acquisition of any access of light, or of any use of light, there shall be actual enjoyment thereof without interruption for the full period of twenty years, and proof of such enjoyment is produced, the only adverse proof admissible is that of some consent or agreement in writing (under hand and seal, or under hand only), expressly granting the right of enjoyment (s. 3.)

By the decision in Flight v. Thomas (11 A. & E. 688; 8 Cl. & F. 231), taken in connection with the 4th section of the Prescription Act, the actual enjoyment for twenty years in the case of light is practically reduced to nineteen years; and the actual enjoyment for twenty years, or for forty years, in the case of any sort of way, or watercourse, or water, is also practically reduced to nineteen years or thirty-nine years, as the case may be. In all cases where the Prescription Act applies, the acquisition under that Act should be the ground of claim (Tapling v. Jones, 11 H. L. C. 290), although it does not follow that the acquisition by prescription at the Common Law is therefore excluded, excepting perhaps in the case of light, which depends perhaps wholly on the statute (Truscott v. Merchant Taylors Co., 11 Ex. 855; but see Lanfranchi v. Mackenzie, L. R. 4 Eq. 421). Moreover, under the Prescription Act, the periods of twenty years and forty years respectively are to be reckoned backwards from suit or action bringing the easements into dispute (s. 4); and it has been determined that the actual enjoyment must therefore have continued to within one year at the very longest from the commencement of the suit or action (Parker v. Mitchell, 6 Ex. 825). Where actual user before and after a period of intermission is proved, the user is taken to have been uninterrupted or continuous (Carr v. Foster, 3 Q. B.

EASEMENTS-continued.

581). The 7th and 8th sections of the Act provide for the case of persons under the disabilities therein specified of disputing the easement during the period of its adverse acquisition. In all other respects the acquisition of an easement under the Prescription Act is regulated by the same principles as the acquisition of an easement by prescription at Common Law.

The varieties of adverse proof (when admissible) to the claim of an easement by prescription are the following :(1.) Proof of the legal impossibility of the grant which is implied;

-

(2.) Proof of the extinguishment of the easement by unity of seisin or otherwise;

(3) Proof of the improbability of the grant; and

(4.) Proof of the inability of the servient owner to resist the user.

was

Thus, where the grant would have been void by reason of some Act of Parliament (Rochdale Canal Co. v. Radcliffe, 18 Q. B. 287), or where the servient owner legally incapable to make the grant (Winship v. Hudspeth, 10 Exch. 5), or was ignorant of the user (Daniel v. North, 11 East, 370), e.g., in the case of an alleged right to support from buildings (Solomon v. Vintners' Co., 12 Q. B. 739), there is no easement.

In case the owner of the dominant tenement is hindered in his enjoyment of the easement, in other words, in the case of a disturbance of his easement, he has the following remedies :

(1.) An action on the case at Law for the disturbance, bringing damages for the disturbances that are past, but not for such as have been committed since the commencement of the action, or are yet to come, it being a rule of the Common Law that the damages must not be for cause of action subsequent to the action in which they are recovered (2 Saund. 174, a, b). But now, under the C. L. P. Act, 1854 (17 & 18 Vict. c. 125), s. 79, an injunction against future disturbance may be obtained in the action.

(2.) A suit in Equity upon bill filed stating the case and the damage sustained, and praying damages and an injunction. Wood v. Sutcliffe, 21 L. J. (Ch.) 255; Soames v. Edge, Johns, 669; and Chancery Amendment Act (21 & 22 Vict. c. 27), s. 2. And such remedies lie as well for the continuance of a disturbance as for the original creation of one, upon the analogy of the principle that every continuing trespass is a fresh trespass.

(3.) The remedy by abatement of the disturbance as a nuisance is also available to the person entitled to the casement

K