KFLCC Kingdom Law 2nd Ed.

403

EAR-WITNESS

EASEMENT

EAR-WITNESS. In the law of evidence. One who attests or can attest anything as heard by himself. A title of nobility, formerly the highest in England, now the third, ranking between a marquis and a viscount, and cor responding with the French "comtei" and the German "graf." The title originated with the Saxons, and is the most ancient of the English peerage. William the Conqueror first made this title hereditary, giving it in fee to his nobles; and alloting them for the support of their state the third penny out of the sheriff's court, issuing out of all pleas of the shire, whence they had their ancient title "shiremen." At present the title is accom panied by no territory, private or judicial rights, but merely confers nobility and an hereditary seat in the house of lords. Whar ton. —Earl marshal of England. A great officer of state who had anciently several courts un der his jurisdiction, as the court of chivalry and the court of honor. Under him is the-herald's office, or college of arms. He was also a judge of the Marshalsea court, now abolished. This office is of great antiquity, and has been for several ages hereditary in the family of the Howards. 3 Bl. Comm. 68, 103; 3 Steph. Comm. 335, note.— Earldom. The dignity or jurisdiction of an earl. The dignity only re mains now, as the jurisdiction has been given over to the sheriff. 1 Bl. Comm. 339. EARL. EARNEST. The payment of a part of the price of goods sold, or the delivery of part of such goods, for the purpose of binding the contract. Howe v. Hayward, 108 Mass. 54, 11 Am. Rep. 306. A token or pledge passing between the par ties, by way of evidence, or ratification of the sale. 2 Kent, Comm. 495, note. This term is used to denote a larger class of credits than would be in cluded in the term "wages." Somers v. Keliher, 115 Mass. 165; Jenks v. Dyer, 102 Mass. 235. The gains of the person derived from his services or labor without the aid of capital. Brown v. Hebard, 20 Wis. 330, 91 Am. Dec. 408; Hoyt v. White, 46 N. H. 48. —Gross earnings and net earnings. The gross earnings of a business or company are the total receipts before deducting expenditures. Net earnings are the excess of the gross earn ings over the expenditures defrayed in pro ducing them, and aside from and exclusive of capital laid out in constructing and equipping the works or plant. State v. Railroad Co., 30 Minn. 311, 15 N. W. 307; People v. Roberts, 32 App. Div. 113, 52 N. Y. Supp. 859; Cincin nati, S. & C. R. R. Co. v. Indiana, B. & N. Ry. Co., 44 Ohio St. 287, 7 N. E. 139; Mobile & O. R. Co. v. Tennessee, 153 U. S. 486, 14 Sup. Ct. 968, 38 L. Ed. 793; Union Pac. R. Co. v. U. S., 99 U. S. 420, 25 D. Ed. 274; Cotting v. Railway Co., 54 Conn. 156, 5 Atl. 851.— Sur plus earnings of a company or corporation EARNINGS. EARLES-PENNY. Money given in part payment. See EAENEST.

means the amount owned by the company over and above its capital and actual liabilities. People v. Com'rs of Taxes, 76 N. Y. 74. Soil of all kinds, including gravel, clay, loam, and the like, in distinction from the firm rock. Dickinson v. Pough keepsie, 75 N. Y. 76. A right in the owner of one parcel of land, by reason of such owner ship, to use the land of another foE a special purpose not inconsistent with a general prop erty in the owner. 2 Washb. Real Prop. 25. A privilege which the owner of one adja cent tenement hath of another, existing in respect of their several tenements, by which that owner against whose tenement the priv ilege exists is obliged to suffer or not to do something on or in regard to his own land for the advantage of him in who^e land the privilege exists. Termes de la Ley. A private easement is a privilege, service, or convenience which one neighbor has of another, by prescription, grant, or necessary implication, and without profit; as a way over his land, a gate-way, water-course, and the like. Kitch. 105; 3 Cruise, Dig. 484. And see Harrison v. Boring, 44 Tex. 267; Albright v. Cortright, 64 N. J. Law, 330, 45 Atl. 634, 48 L. R. A. 616, 81 Am. St. Rep. 504; Wynn v. Garland, 19 Ark. 23, 68 Am. Dec. 190; Wessels v. Colebank, 174 111. 618, 51 N. E. 639; Terminal Land Co. v. Muir, 136 Cal. 36, 68 Pac. 308; Stevenson v. Wal lace, 27 Grat (Va.) 87. The land against which the easement or privi lege exists is called the "servient" tenement, and the estate to which it is annexed the "dom inant" tenement; and their owners are called respectively the "servient" and "dominant" owner. These terms are taken from the civil law. Synonyms. At the present day, the distinc tion between an "easement" and a "license" ia well settled and fully recognized, although it becomes difficult in some of the cases to dis cover a substantial difference between them. An easement, it has appeared, is a liberty, priv ilege, or advantage in land, without profit, and existing distinct from the ownership of the soil; and it has appeared, also, that a claim for an easement must he founded upon a deed or writing, or upon prescription, which sup poses one. It is a permanent interest in an other's land, with a right to enjoy it fully and without obstruction. A license, on the other hand, is a bare authority to do a certain act or series of acts upon another's land, without pos sessing any estate therein; and, it being found ed in personal confidence, it is not assignable, and it is gone if the owner of the land who gives the license transfers his title to another, or if either party die. Cook v. Railroad Co., 40 Iowa, 456; Nunnelly v. Iron Co., 94 Tenn. 397, 29 S. W. 361, 28 L. R. A. 421; Baldwin v. Taylor, 166 Pa. 507, 31 Atl. 250; Clark T. Glidden, 60 Vt. 702, 15 Atl. 358; Asher v. Johnson, 118 Ky. 702, 82 S. W. 300. Classification. Easements are classified as affirmative or negative; the former being those where the servient estate must permit some thins to be done thereon, (as to pass over it, or to discharge water upon it;) the latter being those where the owner of the servient estate is EARTH. EASEMENT.