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EASEMENTS BY IMPLIED GRANT.

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THE decision of the English Court of Exchequer, in 1857, in the case of Pyer v. Carter, was the beginning of a controversy on the subject of how far easements can be acquired by implied grant, of which there would seem to be no immediate prospect of settlement. If that case goes beyond the old doctrine of the common law, and can only be supported, as many contend, upon principles derived from the French code, it is still certain that both among textwriters and judges on each side of the Atlantic there has been a strong disposition to accept it as establishing a doctrine necessary in the innumerable uses to which real property is applied at the present day, and which demand a broader and more tolerant protection than the old law of real property would accord to them. On the other hand, very able and eminent judges, like Lord Westbury, .in England, and Mr. Justice Hoar,2 in this country, look upon the new doctrine with little favor, and have greatly shaken the authority of the original decision, which at one time seemed likely to be generally acquiesced in.

The leading case on the subject of this class of easements is that of Nicholas v. Chamberlain. It was an action of trespass;

and, as the report is quite brief, we shall quote it in full:

"It was held by all the court, upon demurrer, that, if one erect a house, and build a conduit thereto in another part of his land, and convey water by pipes to the house, and afterward sell the house with the appurtenances, excepting the land, or sell the land to another, reserving to himself the house, the conduit and pipes pass with the house, because it is necessary et quasi appendant thereto; and he shall have liberty, by law, to dig in the land for amending the pipes or making them new, as the case may require. So it is if lessee for years of a house and land erect a conduit upon the land, and after the term determines the lessor occupies them together for a time, and afterwards sells the house with the appurtenances to one, and the land to another, the vendee shall have the conduit and pipes, and liberty to amend them. "But by Popham, Chief Justice, if the lessee erect such a 2 Now Attorney-General of the United States.

1 1 H. & N. 916.
3 Cro. Jac. 121.

conduit, and afterwards the lessor, during the lease, sell the house to one, and the land wherein the conduit is to another, and after the lease determines, he who hath the land wherein the conduit is may disturb the other in the using thereof, and may break it, because it was not erected by one who had a permanent estate or inheritance, nor made one by the occupation or usage of them together by him who had the inheritance. So it is if a disseisor of a house and land erect such a conduit, and the disseisee reenter, not taking conusance of any such erection, nor using it, but presently after his re-entry sells the house to one and the land to another; he who hath the land is not compellable to suffer the other to enjoy the conduit. But in the principal case, by reason of the mispleading therein, there was not any judgment given."

The decision in Nicholas v. Chamberlain has been recognized as binding authority in innumerable cases, and, to our knowledge, has never been questioned.1 It is necessary, therefore, that we should settle what that case actually decided. Now it is apparent that the easement in question was a permanent structure, which was considered as necessary to the house, and that for this reason the court regarded it as an appurtenance of the house; so that whether the house was sold and the land reserved, or the land sold and the house reserved, the conduit would pass with the house," because it is necessary et quasi appendant thereto;" "a decision," says Lord Westbury,2" which merely amounts to this, that the reservation, like the grant of a house, is a reservation or grant of it with its appurtenances." It was an appurtenance, because it was necessary to the use and enjoyment of the house.

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Two classes of cases frequently treated under the law of easements rest on principles in the one class so well settled, and in the other so clearly distinguishable from those we are now discussing, that they can be disposed of in a few words. The first is, that of ways of necessity. If a man sells a parcel of land to another, wholly surrounded by other land of his own, the purchaser has a right of way to his own land as incident to the grant. Quando

1 Pyer v. Carter, 1 H. & N. 916; Lord Westbury, in Suffield v. Brown, 33 L. J. (N. S.) Ch. 249; s. c. 10 Jur. N. 8. 111, and 9 Law Times, N. s. 627; Story, J., in Hazard v. Robinson, 3 Mason, 272, and United States v. Appleton, 1 Sumn. 492; New Ipswich Factory v. Batchelder, 3 N. H. 190; Pickering v. Stapler, 5 S. & R. 107; Lampman v. Milks, 21 N. Y. 505; Seymour v. Lewis, 2 Beasl. Ch. 439; Elliott v. Sallee, 14 Ohio St. 10; Hoar, J., in Philbrick v. Ewing, 97 Mass. 133; Washburn on Easements (2d. ed.), 63, 64, 70.

2 33 L. J. (N. s.) Ch. 260.

8 S. P. Pettee v. Hawes, 13 Pick. 323.

aliquis aliquid concedit, concedere videtur et id, sine quo res uti non potest. And, after some doubt and conflict of opinion, it is now fully settled that the converse of this is true, and that if a man sells the surrounding land, reserving to himself the middle parcel, he reserves a right of way to it.1 It is an easement appurtenant to the middle parcel of land, which ex necessitate rei is not extinguished by unity of possession; and the law will not presume that the owner intended to part with it. The second class of cases referred to is that of natural watercourses. "Every person," says Chief Justice Shaw, "through whose land a natural watercourse runs, has a right publici juris to the benefit of it, as it passes through his land, to all the useful purposes to which it may be applied; and no proprietor of land, on the same watercourse, either above or below, has a right unreasonably to divert it from flowing into his premises, or obstruct it in passing from them, or to corrupt or destroy it. It is inseparably annexed to the soil, and passes with it, not as an easement nor as an appurtenance, but as parcel. Use does not create it; and disuse cannot destroy or suspend it. Unity of possession and title in such land with the lands above it or below it does not extinguish or suspend it." And this principle is applicable, whatever may be the size of the watercourse. If it be a natural one, the rights of parties in regard to it do not depend upon the law of easements. A right to an artificial drain or ditch through another's land may be acquired by prescription, and then the rights of parties to it are in many respects similar to those in a natural watercourse.4

The early case of Sury v. Pigott,5 was an action for obstructing a stream of water running across the defendant's land to a pool situated in a close, which was part of the plaintiff's rectory. Plea, that the plaintiff's and the defendant's land were both part and parcel of the manor of Markham, and that King Henry VIII., being seised of said manor in his demesne as of fee, granted the land

13 Kent, Com. (6th ed.) 421, and cases cited; 1 Wms. Saund, 323, note (6); Tudors, L. C. on Real Prop. 148.

2 Nichols v. Luce, 24 Pick. 102. 3 Johnson v. Jordan, 2 Met. 239. And see Story, J., in Tyler v. Wilkinson, 4 Mason, 397; Parke, B., in Embrey v. Owen, 6 Exch. 369; Wood, V.C., in Crossley v. Lightowler, Law Rep. 3 Eq. 296.

4 Beeston v. Weate, 5 E. & B. 986; Norton v. Volentine, 14 Vt. 239, 246; White v. Chapin, 12 Allen, 516, and 97 Mass. 101; Cary v. Daniels, 5 Met. 236.

Pop. 166; s. c. Palm. 444; Noy, 84; Latch, 153; s. c. nom. Shury v. Bulstr. 339; W. Jon. 145; s. c. Tudor's L. C. on Real Prop. 127.

Piggot, 3

over which the water ran to one under whom the defendant claimed; and the question was whether the unity of ownership extinguished the watercourse. The court unanimously decided that it did not; and Chief Justice Whitelocke, as reported in Popham,1 said, “A way or common shall be extinguished, because they are part of the profits of the land, and the same law is of fishings also; but, in our case, the watercourse doth not begin by consent of parties, nor by prescription, but ex jure naturæ, and therefore shall not be extinguished by unity." The dicta of the

judges in this case, as reported in the various books, are perhaps not entirely reconcilable with each other, and the case itself has therefore been misunderstood; but it is perfectly clear and satisfactory, when it is remembered that the subject-matter of the suit was a natural watercourse. It was not therefore, properly speaking, the case of an easement at all.2 The right of support from adjacent soil is also derivable from the law of nature, and is not an easement.3

As no man is allowed to derogate from his own grant, many rights in the nature of easements have been held to pass as appurtenant to a grant, and as being necessary to the enjoyment of the grant itself. The leading case on this subject is Palmer v. Fletcher. It was there decided that if a man build a house upon land of his own, and sell it, neither he nor a subsequent grantee can build on other land adjacent, so as to destroy windows which "were a necessary and essential part of the house." The obiter remark of Mr. Justice Troysden, that even if the land were sold before the house, the grantee could not obstruct the house, was doubted very soon after, and, at most, does not go further than Nicholas v. Chamberlain. Its correctness we shall consider hereafter. Within this case fall those of Rosewell v. Prior Coutts v.

1 Pop. 170; Tudor's L. C. on Real Prop. 135.

2 The writer, in saying this, is obliged to differ from Mr. Tudor, who, in his leading cases on Real Property, makes Sury v. Pigott the leading case on the law of Easements. Singularly enough, too, he does not even cite Nicholas v. Chamberlain. But although principles applicable to easements were largely discussed by bench and bar in Sury v. Pigott, it cannot be said in view of the now universally accepted opinion, that natural watercourses are not of the nature of easements, that that case authoritatively settled any question of easements.

3 See 1 Am. Law Rev. 1.

4 1 Lev. 122; 8. c. nom. Palmer v. Fleshees, 1 Sid. 167, 227; s. c. nom. Palmer v. Flessier, 1 Keble, 552, 625, 794.

5 6 Mod. 116.

Gorham,1 and Compton v. Richards,2 in England, and the American case of Story v. Odin.3 These were all cases of lights.

There is still another class of cases, usually considered under the law of easements, which rest on elementary principles of real property law. These are the cases of grants of a manor, a messuage, a mill, or a farm, eo nomine, and which have been held to carry, as appurtenant to the principal thing granted, many things which would not pass in a grant of land only by metes and bounds. The most familiar instance in this country, is that of the grant of a mill, which has repeatedly been held to carry with it raceways and conduits supplying the mill with water, and water-rights essential to the enjoyment of the mill.1

In 1839 appeared the first edition of the late Mr. Gale's able work on Easements. He divided easements by implied grant into two classes: those which arise upon the severance of an heritage by its owner into two or more parts; and easements by prescription. We cannot agree that the last class fall within easements by implied grants at all. An easement, resting in prescription, would seem to be founded upon the legal presumption of an express grant now lost, and therefore as entirely outside of our subject. The learned author goes on to say that, "upon the severance of an heritage, a grant will be implied, first, of all those continuous and apparent easements which have in fact been used by the owner during the unity, though they have no legal existence as easements; and, secondly, of all those easements without which the enjoyment of the severed parts could not be had at all." These latter are easements of necessity, and whether

1 Mood. & Malk. 396.

2 1 Price, 27.

3 12 Mass. 157. See also Canham v. Fisk, 2 Cr. & J. 126; s. c. 2 Tyrwh. 155, by Bayley, B.

4 2 Wms. Saund. 400, note (2); 4 Kent, Com. (6th ed.) 467; Hinchcliffe v. Earl of Kinnoul, 5 Bing. N. C. 1; s. c. Scott, 650; Ewart v. Cochrane, 4 Macq. 117; Hall v. Lund, 1 H. & C. 676; Whitney v. Olney, 3 Mason, 280; United States v. Appleton, 1 Sumn. 492; Leonard v. White, 7 Mass. 5; Johnson v. Jordan, 2 Met. 234; Carbrey v. Willis, 7 Allen, 369, 370; Oakley v. Stanley, 5 Wend. 523; LeRoy v. Platt, 4 Paige, 77; Farrar v. Stackpole, 6 Greenl. 154; New Ipswich Factory v. Batchelder, 3 N. H. 190; Pickering v. Stapler, 5 S. & R. 107; Elliott v. Sallee, 14 Ohio St. 10; Washburn on Easements (2d ed.), 42, 43. A reservation of a mill from a grant, eo nomine, would reserve easements essential to it in the land granted. Pettee v. Hawes, 13 Pick. 323.

5 Gale on Easements, 85, 4th ed. by Willes. The editor of this edition, in consequence of recent cases, greatly qualifies the original statement by interpolating the words "and which are necessary for the use of the tenement conveyed."

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