dinary freshets once in several years, although at no regular intervals, a person who builds a dam across the stream is bound to so construct it as to resist such freshets. A dam or levee may be cut to save life and property, when clearly necessary to that end. Similar principles apply to the owners of booms, who are not liable for lumber lost by inevitable accidents or the unavoidable dangers of the river. The owner of an irrigating ditch who carelessly passes water into and through it beyond its reasonable capacity, and thereby causes it to overflow its banks upon the land of another proprietor, injuring the latter's fruit trees and vines, is liable for such injury under the Colorado statutes.*

1 Gray v. Harris, 107 Mass. 492; New York v. Bailey, 2 Denio, 133; Darling v. Thompson, 108 Mich. 215; Townes v. Augusta, 46 S. C. 15; Georgia R. Co. v. Bohler, 98 Ga. 184; Borchsenius v. Chicago, etc. Ry. Co., 96 Wis. 448; ante, § 211c. It is the settled law of Louisiana and in ac cordance with the natural state of things as they exist in the alluvial portion of that State, that the breaking of a crevasse in the Mississippi river levee is a fortuitous or foreseen event within the meaning and scope

of La. Code, arts. 2697, 2699. Viterbo v. Friedlander, 120 U. S. 707; 24 Fed. Rep. 320; Jackson v. Michie, 33 La. Ann. 723; see Koerber v. New Orleans Levee Board, 51 id. 523; Forsdick v. Supervisors (77 Miss.), 25 S. Rep 294.

2 Newcomb v. Tisdale, 62 Cal. 575. Brown v. Susquehanna Boom Co., 109 Penn. St. 57.

4 Gen. Stats. §§ 312, 1728, 1733; Greeley Ir. Co. v. House, 14 Col. 549; King v. Miles City Ir. Ditch Co., 16 Mont. 463.

SECTION.

CHAPTER X

CONTRACTS AND COVENANTS.

299. Easements in general.

300. Creatable by deed only.

301. Easements in gross and appurtenant.

302. Covenants personal and real.

302a. Conditions.

303. Easements as encumbrances against warranty.

304. Water easements as to quantity and power.

304a. Words and phrases passing the water privilege and the soil 305. Appurtenances.

306-309. Secondary easements.

310. Reservations and exceptions

311. Construction of, must be certain.

312. Must be inclusive and unambiguous.

313. Extinguished by unity of possession.

314. Not so of necessary or continuous easements.

316. Easements follow parted estates-Mining ditches indivisible. 317. Pipes and aqueducts.

318, 318a. Construction of water easements.

319. Should regard preliminaries, circumstances, and intention. Does not restrict use, in grant of quantity.

320.

321.

Statute of Frauds.

322. License granted verbally.

323. When revocable.

324. Unexecuted license always revocable.

325. Misrepresentations as to water easements actionable. 326. Promissory representations non-actionable.

327. Damages.

328. Repairs.

§ 299. Easements. In addition to the rights which riparian proprietors possess ex jure naturæ, other rights may be acquired in watercourses known as easements. An easement is a privilege without profit which the owner of one tenement has in an adjoining tenement, by which the servient owner is obliged to suffer or not to do something on his own

3

land for the advantage of the dominant estate.1 Easements in watercourses appear to be exclusively affirmative, that is, the exercise of the easement obliges the servient owner to suffer something on his own land, which would be a cause of action if the right did not exist. Such rights may be acquired by a contract, express or implied, or by prescription, which presupposes a contract or grant from the long-continued exercise of the right. The grantor of land through which a stream of water flows may reserve the water privilege, or he may convey the use of the water in whole or in part, leaving the fee of the land vested in the grantor. A grant of riparian land, together with the use of the water of the stream for operating the grantee's mill, "free from interference or detention," is to be construed as subject to the reasonable use of the stream by the grantor, according to general principles of law, independent of the grant. If a miller purchases the water privilege adjoining his mill, the right of soil remaining in the original proprietor, he gains an incorporeal hereditament; but if he buys the land itself over which the water flows, he has a corporeal tenement, and the right which he possesses in re

1 Termes de la Ley, tit. Easement; Monsey v. Ismay, 3 H. & C. 497; Munro v. Meech, 94 Mich. 596; Smith v. Chicago, etc. Ry. Co., 83 Wis. 271; Nunnelly v. Southern Iron Co., 94 Tenn. 397; Wyatt v. Larimer & W. Ir. Co., 18 Col. 298; Quinlan v. Noble, 75 Cal. 250. Easements may come into existence (1) by express public grant by an act of the Legislature; (2) by express private grant, (a) inter vivos, (b) by testament; (3) by implied grant, when the intention is implied to grant the easement together with property which is expressly granted, as on severance of tenements; (4) by prescription, which requires enjoyment as of right for a particular period. Prescription is either by (a) common law, or (b) by statute. Innes on Easements (2d ed.), 3. For grants of easements, upon special facts and clauses, see Ludlow v. Gierhon, 6 N. Y. S. 121 ("adjoining dock surface"); Fort Edwards W. Works

6

v. McIntyre, 4 id. 638 (pipes outside of granted privilege); Fitch v. Belding, 49 Conn. 469; Reno Water Co. v. Leete, 17 Nev. 203. As to equitable easements, see 29 Am. L. Reg. N. s. 73. 2 See post, § 340.

3 It is improper to assign, as part of dower, a right of way over other land, or the right to use water-pipes laid therein. Price v. Price, 7 N. Y. S.

474.

4 Rood v. Johnson, 26 Vt. 64; Miller v. Lapham, 44 Vt. 416; Soule v. Russell, 13 Met. 436; Gould v. Stafford, 91 Cal. 146.

5 Red River Roller Mills v. Wright, 30 Minn. 249. See Sidwell v. Greig, 40 N. Y. S. 968; Hazelton v. Webster, 46 id. 922.

6 The right of maintaining a pond or reservoir upon another's land is an easement. Johnson v. Skillman, 29 Minn. 95; Watuppa Reservoir Co. v. Mackenzie, 132 Mass. 71; Tuttle v. Harry, 56 Conn. 194.

spect to the watercourse is real.1 In the former case the right acquired is an easement and not a profit a prendre, since running water, whether above or below the surface of the earth, is not a product of soil and does not remain in any one place.2 The right to enter upon another's close and there take water for domestic purposes from a natural fountain, as a pond or a running spring, is an easement only, sustainable by proof of custom by the inhabitants. So the privilege of laying pipes in another's land for the purpose of taking water, and of entering upon the land to lay, repair, or renew such pipes, is an interest in the realty which is assignable, descendible, and devisable, when the grant contains words of inheritance. The right to water in wells or cisterns is an interest in land, although not a profit a prendre, and may be claimed by custom. If the plaintiff's claim is upon a contract, there must always be some privity between the parties. Thus, a town which repairs a bridge cannot recover against neighboring mill-owners upon a claim for reimbursement unless there is some relation between them showing an express or implied promise.7

$300. Created only by deed. An easement in a watercourse can only be created by deed; and when so created,

1 Ibid.; Woolrych on Waters, 146; Trudeau v. Field, 69 Vt. 446; Branson v. Studabaker, 133 Ind. 147; Sterling Hydraulic Co. v. Williams, 66 Ill 393; Seymour v. Lewis, 13 N. J. Eq. 439; Eckert v. Peters, 55 N. J. Eq. 379; Morgan v. Mason, 20 Ohio, 401; Wall v. Cloud, 3 Humph. 181, 184; Smith v. Ford, 48 Wis. 166.

2 Race v. Ward, 4 El. & Bl. 702; Mounsey v. Ismay, 3 H. & C. 486; Shuttleworth v. La Feming, 19 C. B. N. S. 687; Manning v. Wasdale, 5 A. & E. 758; Sutherland v. Heathcote, [1892] 1 Ch. 475; Engel v. Ayer, 85 Maine, 448; Ring v. Walker, 87 id. 550; Columbia W. P. Co. v. Columbia El. St. Ry. Co., 43 S. C. 154; Owen v. Field, 102 Mass. 90; Hill v. Lord, 48 Maine, 83, 99; 3 Kent Com. 427.

3 Ibid.

4 Goodrich v. Burbank, 12 Allen, 459; 97 Mass. 22; Amidon v. Harris,

8

113 Mass. 68; Hankey v. Clark, 110 Mass. 262; French v. Morris, 101 Mass. 68; Lonsdale Co. v. Moies, 21 Law Rep. 664; Williams v. Wadsworth, 51 Conn. 277; Nellis v. Munson, 108 N. Y. 453; 24 Hun, 575; Wright v. Newton, 130 Mass. 552; Dority v. Dunning, 78 Maine, 381; Wilder v. Wheeler, 60 N. H. 351; Cole v. Lake Co., 54 N. H. 242; Jones v. Pettibone, 2 Wis. 308; Peaslee v. Tower, 62 N. H. 434; McMullin v. Wooley, 2 Lans. 394; Warren v. Carey, 145 Mass. 78.

5 Wilder v. Wheeler, 50 N. H. 351; Salem Capital F. M. Co. v. Stayton W. D. Co., 13 Sawyer, 99; Whitney v. Richardson, 59 Hun, 601.

6 Ibid.; Tyler v. Bennett, 5 Ad. & El. 377.

7 North Providence v. Dyerville Manuf. Co., 13 R. I. 45.

8 Co. Litt. 9a; Hewlins v. Shippam,

the grantor cannot derogate from the deed, and the nature and extent of the rights of the parties can only be determined thereby. But a mere license does not create an easement, and may be valid though by parol.2 A grantee of a water privilege whose deed contains no covenant as to the height of the dam or his rightful extent of flowage, is without remedy at law or in equity, if he is subjected to damages by reason of his maintenance of a dam at an improper height. The above rule applies equally whether the water flows in a natural or artificial channel, or is mere surface or percolating water; and whether all the interest in the soil beneath the water is conveyed, or only so much as is necessary for a due enjoyment of the water, yet the interest is of such a character that it cannot pass by parol. No water easement, however, will arise under a deed,

5 B. & C. 221, 229; Cocker v. Cowper, 1 C. M. & R. 418; Cook v. Stearns, 11 Mass. 533; Fuller v. Plymouth, 15 Pick. 81; Short v. Woodward, 13 Gray, 86; Stevens v. Stevens, 11 Met. 251; Banghart v. Flummerfelt, 43 N. J. L. 28; Carlton v. Redington, 21 N. H. 291; Stevens v. Dennett, 51 N. H. 324; Fuhr v. Dean, 29 Mo. 116; Miller v. Auburn & Syracuse R. Co., 6 Hill, 61; Brown v. Woodworth, 5 Barb. 550; Russell v. Scott, 9 Cowen, 279; Wiseman v. Lucksinger, 84 N. Y. 31; People v. Page, 58 N. Y. S. 239; v. Deberry, 1 Hayw. (N. C.) 248; Watrous v. Watrous, 3 Conn. 373; Foot v. New Haven Co., 23 Conn. 214; Moore v. Sinks, 2 Ind. 157; Thoemke v. Fiedler, 91 Wis. 386. Under the statutes of Ohio, an unsealed written license to enter upon and imbed water pipes in another's land, with privilege to enter and repair them, creates no incumbrance upon the land as against a subsequent purchaser. Wilkins v. Irvine, 33 Ohio St. 138.

1 Northam v. Hurley, 1 E. & B. 665; Whitehead v. Parks, 2 H. & N. 878; Sharp v. Waterhouse, 7 E. & B. 816; Tipping v. Eckersley, 2 K. & J. 273; Risien v. Brown, 73 Texas, 135; Wood 2. Saunders, L. R. 10 Ch. 582; Fin

linson v. Porter, L. R. 10 Q. B. 188; United Land Co. v. Great Eastern Ry. Co., L. R. 10 Ch. 586; Collins v. Slade, 23 W. R. 199; Chicosa Ir. Ditch Co. v. El Moro Ditch Co., 10 Col. App. 276; Consolidated Canal Co. v. Mesa Canal Co. (Ariz.), 53 Pac. Rep. 575. As to the burden of proof to show a breach of covenant, see Bangs v. Waterville & F. Light Co., 92 Maine, 559.

2 Lawrence v. Springer, 49 N. J. Eq. 289; Richards v. Gauffret, 145 Mass. 486; Shirley v. Crabb, 138 Ind. 200; Kleeb v. Bard, 7 Wash. 41; Columbus R. Co. v. City Mills Co. (Ga.), 34 S. E. Rep. 581; infra, § 322.

3 Hopper v. Lutkins, 3 Green Ch. 149.

4 Rawstron v. Taylor, 11 Exch. 369; Whitehead v. Parks, 27 L. J. Exch. 169.

5 Bullen v. Runnels, 2 N. H. 255; Hall v. Chaffee, 13 Vt. 170; Tanner v. Volentine, 75 Ill. 624; Wood v. Edes, 2 Allen, 580; Seidensparger v. Spear, 17 Maine, 123; Clement v. Durgin, 5 Greenl. 9; Brand v. Doane, 17 Conn. 402; Fitch v. Seymour, 9 Met. 462; Smith v. Goulding, 6 Cush. 154; Seymour v. Carter, 2 Met. 250; Cobb v. Fisher, 121 Mass. 170.