Easement

An incorporeal, right, existing distinct from the ownership of the soil, consisting of a liberty, privilege, or use of another's land without profit or compensation; as, an easement consisting of a right of way, a right to running water, to free air, etc. According to rabbinical legislation, an easement was acquired by mere possession, provided no objection was raised against it by the other parties concerned. The later authorities, however, differed with regard to the conditions that constitute such possession (see ḤazaḲah). If one erected a rainspout from his roof leading to his neighbor's premises, and the neighbor did not object, he acquired the use of his neighbor's premises to that extent, while the neighbor also acquired the use of the water coming from the rain-spout onto his premises. The owner of the rain-spout could not remove it without the permission of his neighbor, while his neighbor could not compel him to remove it after he had once acquired the right (B. B. 58b, 59a). For such a right could never be destroyed; and consequently if one acquired the right of opening a window or a door into his neighbor's premises, the right, or easement, would exist even after the house containing the window or door was destroyed; and in rebuilding the house, he might open a window or a door of the same size and in the same place, even if his neighbor then objected (ib. 60b). One who possessed an easement of a window overlooking his neighbor's premises could prevent his neighbor from building in front of it and thus shutting out its light; or if his neighbor were to build a wall against the window, he could compel him to remove the wall at least four cubits from the window (ib. 22a, 59b).

In some cases the possession of an easement was not sufficient to establish a right to it. The construction of a window opposite another's window, even though the other did not object at first, did not establish an easement, for the Rabbis considered it indecent to look into another's house and watch his actions and movements (; ib. 60a). The establishment of a baker's or of a potter's oven, which emitted large volumes of smoke, or of a factory from which much dust issued, in the immediate vicinity of another's house, or of anything that caused obvious injury to another's property, although no objection had been raised against it at first, did not constitute an easement (ib. 23a). The rules which applied to easements in the property of individuals also applied, with a few exceptions, to easements in the common property of the community. See Boundaries; Neighbors; Partnership.

Bibliography:

  * Maimonides, Yad, Shekenim, vii.-xii.;
  * Caro, Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 153-156;
  * Bloch, Das Besitzrecht, Budapest, 1897.



S. S. J. H. G.