Mr. Gale is correct in the principle to which he traces them or not, their existence is unquestioned. The former subdivision, which he styles the "Disposition of the owner of two tenements," Mr. Gale confessedly borrows from the French code, in which it is known as the "destination du père de famille," and is defined by Pardessus as follows: "By the destination du père de famille is understood the disposition or arrangement which the proprietor of several heritages [fonds] has made for their respective use. Sometimes one heritage receives a benefit from another, without being in return subjected to an inconvenience which could amount to a species of compensation; sometimes this service is reciprocal but these differences do not in any way change the nature or effect of this distribution. If afterwards these heritages should become the property of different owners, whether by alienation or division among his heirs, the service which the one derived from the other, which was simple. destination du père de famille, as long as the heritages belonged to the same owner, becomes a servitude as soon as they pass into the hands of the different proprietors." 1 This is certainly broader and more sweeping than any statement to be found in the previous English cases. Those cases indeed do hold that, as against a grantor, all easements and appurtenances necessary to the full enjoyment of the thing granted will pass. If I grant a house, I grant an easement to light over other land. of mine, which is necessary to the house; if the grant be of a mill, the necessary appurtenances to working the mill go with it. On the other hand, where a permanent structure is clearly appurtenant to a house as a conduit or drain, and reasonably necessary to its enjoyment, as an actual appurtenance, or perhaps rather as parcel of the messuage, it may be reserved, although not expressly mentioned in the conveyance. This depends upon the same principle as a way of necessity, which Mr. Gale does not trace to the destination du père de famille. The desire of the courts in all contracts and conveyances is to find out the intention of the parties, and where an easement is of such an importance to the grantee that the value of property would be utterly destroyed without it, as in the case of a landlocked tenement, or even seriously impaired, the courts require something more than the 1 Gale on Easements, 86, quoting Pardessus, Traité des Servitudes, § 288. mere omission to reserve it in the grant, as proof that the grantor intended to part with it. The first instance which Mr. Gale cites of the existence of his principle in the English law, is that of a natural watercourse. "This permanent quality," says he, "affecting the two heritages, is sometimes affixed by nature itself, as in the case of water, which holds its natural course,' and, as it is observed by Brudenell in 12 Hen. VIII., natura sua descendit;' sometimes it is artificially affixed, as by the erection of a roof, or the placing of a gutter, throwing the rain-water on the neighbor's land." Now we cannot allow the correctness of this analogy. If it means any thing, it means that the mere user by an owner of two parcels of land in a certain way, and their arrangement for that use, may impose a servitude against his own grant upon one in favor of the other, as permanent and unchangeable in character as a natural watercourse running through it would be. The watercourse is not governed by principles arising from any presumed unity of ownership in former times. It is part and parcel of the land, and any disposition of it may be made by the owner of the land. through which it passes, which does not interfere with the rights which those owning above and below him have to a stream of running water, of its size, purity, and character. Running water upon one's land is something affixed by nature: it is no more an easement or servitude than a marble quarry would be; and the limitations upon the owner's rights over it arise from the nature of the thing itself, and rest upon the maxim, sic utere tuo ut alienum non lædas. It is said that this disposition of the owner of the tenements, or heritages, must be permanent. But what is a permanent disposition of property? If the owner erects two dwelling-houses upon an estate so dependent upon each other that one cannot be taken down or removed without destroying the other, the purchaser of one of them certainly cannot, by any use to which he may put the premises, deprive even his grantor of that right of support which is essential to the existence of his house, and he has a similar protection. This is very analogous to the right of support in neighboring soil, and, at most, goes no farther than any other necessary easement, which, as we said before, Mr. Gale admits. cannot be included within this class at all, but says may be called 66 easements incident to some act of the owners of the dominant and servient tenements, without which the intention of the parties to the severance cannot be carried into effect." But" permanent' is evidently used in contradistinction to mere temporary or occasional disposition. Thus, using property for a shop, a dwellinghouse, a warehouse, a mill, would be a permanent disposition of it, which, according to this theory, might impose a permanent servitude for the convenience of it against a warranty deed of property described by metes and bounds. It will be seen that our statement goes no farther than some of the recent decisions. Mr. Gale says there is no exception to the long current decisions. in his favor, except a doubtful dictum by Lord Holt,' questioning the purely obiter dictum of Troysden in Palmer v. Fletcher, before alluded to. But, on the contrary, we must say that we have failed to find any decisions in favor of this doctrine before the time when Mr. Gale first promulgated it. We cannot allow that the cases of natural watercourses are applicable. It goes far beyond Nicholas v. Chamberlain, or even Judge Troysden's statement, allowing that to be law, for the easements in both of those cases are said to have been "necessary," by which word we cannot believe that the courts meant only convenient, or merely necessary to the property as then used. The other cases cited, on examination, will be found not to sustain the author. Canham v. Fisk 2 was the case of a natural watercourse running across the plaintiff's garden from a spring situated in a field belonging to his grantor. The defendant bought the field and diverted the water, after the plaintiff had used it for less than twenty years. Lord Lyndhurst said the plaintiff bought the land with the water upon it, and that if the conveyance was silent as to the watercourse, it "would pass by grant of the land." Baron Bayley speaks of it as an easement, and as passing as appurtenant to the land; but it is presumable that this learned judge used these words carelessly, and without intending to call in question the broad distinction between natural watercourses and easements, so plainly and positively stated by such eminent magistrates as Mr. Justice Story, Baron Parke, and Chief Justice Shaw. Another case cited by Mr. Gale is Swansborough v. Coventry, in 1 In Tenant v. Goldwin, 2 Ld. Raym. 1089, 1093; s. c. 6 Mod. 314, and 1 Salk. 360. The latter does not contain the dictum referred to. 2 2 Cr. & J. 126; s. c. 2 Tyrwh. 155. the Court of Common Pleas.1 This, however, is the case of an easement by express grant. It was an action for the obstruction of ancient lights. The plaintiff's house and the defendant's land were sold to them by auction on the same day by order of the Postmaster-General; and the plaintiff's house was conveyed to him "with all the lights, easements, rights, privileges, and appurtenances to the same belonging or in any way appertaining." The defendant's land was conveyed to him by metes and bounds. Chief Justice Tindal's language, when perused without regard to the case before him (as in Mr. Gale's book), might be thought to favor the doctrine contended for; but it is clear that this distinguished judge was not referring to implied easements. "The Postmaster-General," says he, "conveyed to the plaintiff a messuage, with all its lights and easements, without any restriction or qualification; and we think it would be attributing too much force to the description of boundary if it was held to operate indirectly to the destruction of rights expressly conveyed by deed." Another case on which much reliance is placed, is Hinchcliffe v. Earl of Kinnoul.2 Indeed, we are told that the judgment in this case "establishes that upon the conveyance of a house, 'consisting of certain parts,' easements necessary to the use of those parts, as they actually stood at the time of the conveyance, pass by implied grant without reference to the question of absolute necessity. The easement was a right of way; and if the case had decided this, it would be irreconcilable with the later decisions of Pheysey v. Vicary, and Worthington v. Gimson; 5 but this, too, was the case of an express grant of a way which had been in use for a long period, as appurtenant to a messuage. In 1728, a parcel of land in Green Street, in London, was let on a building lease, which would expire in 1824. In 1819, the plaintiff, by virtue of a demise from an under-lessee, which expired in 1820, was in possession of a house erected on part of this land, and, under that demise, exercised, as all his predecessors had done for more than thirty years, a right of way over a passage on one side of his house, as necessary for its use and enjoyment, particularly for repairing the side of it; and, while thus in possession, the reversioner granted him a new lease for fifty-seven years from Lady-day, 1824, of the 19 Bing. 305; s. c. 2 Moore & Scott, 362. 4 16 M. & W. 484. 5 2 E. & E. 618. house he was occupying, "together with all the appurtenances to the said piece or parcel of ground, messuage, or tenement, erections, buildings, or premises belonging or in any way appertaining." Three years afterwards, the reversioner demised the soil of the passageway to the defendant for a term of years, to hold from Lady-day, 1824. The court held, on a special verdict, that, under the demise of 1819, the plaintiff was entitled to the passageway. Chief Justice Tindal considered the clause we have quoted, "together with all the appurtenances," &c., of so much importance in determining the rights of the parties, that, in his judgment, it is printed in italics. The case was that of an express grant of the appurtenances of a messuage, which was held to include a right of way actually in use with it at the time of the demise, and which the special verdict found was reasonably necessary for its enjoyment. Before we consider Pyer v. Carter, we shall refer to one or two previous American cases, in which this subject was considered. The cases are so numerous, that we are compelled to omit all but a few leading ones more directly in point. In the case of Johnson v. Jordan, in Massachusetts, the owner in fee of two adjoining messuages constructed a drain from the upper one occupied by himself through the lower one occupied by tenants, into the common sewer; and this was used for both houses for some years. His devisee sold by auction the upper house to the defendant's grantor, and the lower one to the plaintiff's, and simultaneous deeds were given each party. Other easements were referred to, but no reference was made to the drain. It further appeared that a new drain from the defendant's house to the sewer might be constructed for a small sum of money. The court held that the defendant had no right of drainage across the plaintiff's land. Chief Justice Shaw, in delivering judgment, said, "It is very clear that, whilst both estates were held by the same owner, he had a right to carry his drain as he pleased, through any part of his own grounds; and so long as both tenements were owned and occupied by the same person, no easement was created, or began to be created, in favor of one, and operating as a service or burden upon the other. So long, therefore, as such unity of title and of possession subsists, no right of easement is annexed to one |