If I am wrong on my finding an express legal grant, in my opinion the same facts, documentary and circumstantial, would result in a finding of an equitable easement. As stated in Modern Law of Real Property, supra, at pp. 532-33 in its discussion on creation of easements: (a) (a) Creation (b) (i) At common law An easement is an incorporeal hereditament and therefore, in accordance with the historic rule of the common law, it must be granted by deed, for (c) the deed of incorporate inheritances doth equal the livery of corporate. (d) (ii) In equity At common law, a grant of an easement made orally or by an unsealed writing creates only a licence. But this may create an equitable easement where equity acts on the principle that what ought to be done must be regarded as actually done-a view which has given us the doctrine of Walsh v. Lonsdale. If the grant is made by an unsealed writing and is for value, equity will treat this as a contract to grant a legal interest in land, and if the agreement is specifically enforceable, it will then treat the situation as if the grant by deed had already been made. If, however, the grant is only made orally, then the doctrine of part performance must in invoked and equity may remedy the want of a deed when the altered position of one of the parties gives him an equitable right against the other party.
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