352 HARVARD LAW REVIEW. of Embezzlement was passed in England, under which a prisoner, who would escape under the technicalities of the law of larceny, might be convicted. See 6 Harvard Law Review, 244. Prescriptive Right to Compel Repairs. — A somewhat startling proposition in the law of easements is laid down in the case of Whittenton Manufacturing Co. v. Staples, 41 N. E. R. 441 (Mass.), Field, C. J., Holmfs and Lathrop, JJ., dissenting. It is to the effect that, in consequence of payment by owners of land for more than twenty years of an annual sum of money toward the repair of the dam situated off the premises, the land thereby becomes subject to a servitude to pay that sum annually. 1 lie decision is based on the analogy of the duty to repair a dam to the duty to repair fences and highways. The primary conception of an easement is a right to use another's land : it is a burden imposed upon the land itself, and gives the owner of the easement a right in rem. The duty of the owner of the servient estate is the same as that of all other members of the com- munity, merely to refrain from interfering with the use of the easement. Unfortunately, the law has allowed a landowner to acquire by prescription, or by grant, certain rights, which are not accurately rights in the land of another compelling a passive duty of non-interference merely, but are rights compelling positive acts by the dominus of the servient estate. In these cases, the land is not subjected to use, but the owner, by reason of holding the land, is compelled to do positive acts. A right to compel the performance of positive acts is known as a spurious easement : and up to this time has been strictly confined to three classes of cases. The law has recognized the right to compel the repair of fences ; repairs in connec- tion with the enjoyment of an existing easement {Ryder v. Smith, 3 T. R. 766) ; and repairs to be made upon the highway by abutting owners (Bac. Abr., Highways, E.). It is doubtful if the last mentioned right was ever recognized in the United States previously to the decision in the recent case of Middlefieldw. Knitti?ig Co., i6o Mass. 267. The question in the prin- cipal case concerns the extension of these exceptional easements. There are two strong objections. In the first place, the analogy between repairs on a dam situated on the land of a stranger and repairs to fences and high- ways is not complete. In each of the spurious easements noted above, acts are to be done on the servient estate ; or at least, in each case the act to be done is closely bound up with the use of his land by the owner of the ser- vient estate. But, aside from this imperfect analogy, the creation of rights in the nature of easements — varying widely, however, from the primary conception of easements, that of a subjection of the land itself — has gone far enough. It is to be regretted that such rights — anomalies at best — were ever allowed to creep into the law ; and on principle they ought not to be extended beyond their present well defined limits. It is conceivable, perhaps, that strong reasons of public policy would justify the extension which the court tries to make in the present case ; but Field, C. J., in his dissenting opinion, forcibly replies to arguments of this nature that '• secret hens or interests in land, a knowledge of which cannot be obtained by a view of the land itself, or by a search in the proper registry of deeds, ought not to be extended." With authority and reasons of public policy against the decision, it has little left to support it. The Massachusetts court would certainly support a covenant to pay this
