[392] The allowance of contractual remedies shows that rent and feudal services of that nature, although dealt with as things capable of possession, and looked at generally from the point of view of property rather than of contract, yet approach much nearer to the nature of the latter than a mere duty not to interfere with a way.  Other cases come nearer still.  The sphere of prescription and custom in imposing active duties is large in early law.  Sometimes the duty is incident to the ownership of certain land; sometimes the right is, and sometimes both are, as in the case of an easement.  When the service was for the benefit of other land, the fact that the burden, in popular language, fell upon one parcel, was of itself a reason for the benefit attaching to the other.

Instances of different kinds are these.  A parson might be bound by custom to keep a bull and a boar for the use of his parish. 1 A right could be attached to a manor by prescription to have a convent sing in the manor chapel. 2 A right might be gained by like means to have certain land fenced by the owner of the neighboring lot. 3 Now, it may readily be conceded that even rights like the last two, when attached to land, were looked at as property, and were spoken of as the subject of grant. 4 It may be conceded that, in many cases where the statement sounds strange to modern ears, the obligation was regarded as failing on the land alone, and not on the person of the [393] tenant.  And it may be conjectured that this view arose naturally and reasonably from there having been originally no remedy to compel performance of such services, except a distress executed on the servient land. 1 But any conjectured distinction between obligations for which the primitive remedy was distress alone, and others, if it ever existed, must soon have faded from view; and the line between those rights which can be deemed rights of property, and those which are mere contracts, is hard to see, after the last examples.  A covenant to repair is commonly supposed to be a pure matter of contract.  What is the difference between a duty to repair, and a duty to fence?  The difficulty remains almost as great as ever of finding the dividing line between the competing principles of transfer,—­ succession on the one side, and possession of dominant land on the other.  If a right in the nature of an easement could be attached to land by prescription, it could equally be attached by grant.  If it went with the land in one case, even into the hands of a disseisor, it must have gone with it in the other.  No satisfactory distinction could be based on the mode of acquisition, 2 nor was any attempted.  As the right was not confined to assigns, there was no need of mentioning assigns. 3 In modern times, at least, if not in early law, such rights can be created by covenant as well [394] as by grant. 1 And, on the other hand, it is ancient law that an action of covenant may be maintained upon