We must take it that easements have become
an incident of land by an unconscious and unreasoned assumption
that a piece of land can have rights. It need not be said that
this is absurd, although the rules of law which are based upon it
are not so.
Absurd or not, the similes as well as the principles of the Roman
law reappear in Bracton. He says, "The servitude by which land is
subjected to [other] land, is made on the likeness of that by
which man is made the slave of man." /1/ "For rights belong to a
free tenement, as well as tangible things.... They may be called
rights or liberties with regard to the tenements to which they
are owed, but servitudes with regard to the tenements by which
they are owed .... One estate is free, the other subjected to
slavery." /2/ "[A servitude] may be called an arrangement by
which house is subjected to house, farm to [386] farm, holding to
holding." /1/ No passage has met my eye in which Bracton
expressly decides that an easement goes with the dominant estate
upon a disseisin, but what he says leaves little doubt that he
followed the Roman law in this as in other things.
The writ against a disseisor was for "so much land and its
appurtenances," /2/ which must mean that he who had the land even
wrongfully had the appurtenances.
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