tenement, or charged on another; and it is quite immaterial how long the drain has subsisted during such ownership.

"If such an owner will convey one of the tenements, and retain the other, he may grant the right of drain or not, to pass with the estate conveyed, or may reserve such a right over the estate conveyed, for the benefit of the one retained, as he pleases. It is matter of contract, and must depend entirely upon the construction of the conveyance. Supposing this to be clear, the question recurs, what construction will the law put upon a conveyance where the intention of the parties, in this respect, is not expressed in terms?"

And, after showing that there was no right of drainage expressly or impliedly granted as such in the deed, he proceeds:

"As no such right was expressed, we are of opinion that it was not intended to be granted; and as it was not necessary to the enjoyment of the estate, and had not been de facto annexed, so as to pass by general words as parcel of the estate, it did not pass to the defendant's grantor by force of the deed."

It is unnecessary, in this country, to speak of the high authority of Chief Justice Shaw upon any question of law, but particularly on a question of this kind, when his unsurpassed mastery of the principles of the common law give a weight to his opinion, such as attaches to that of very few of his contemporaries. This decision, while perfectly reconcilable with Nicholas v. Chamberlain, which was cited by the distinguished counsel for the defendant, is at utter variance with Mr. Gale's doctrine.

Many American cases have been cited by various writers, to support this same theory, which, when carefully examined, will be found wholly distinguishable. Such an one is New Ipswich Factory v. Batchelder.1 It was the case of the conveyance of a mill, which was held to carry with it an artificial raceway annexed to it de facto, and necessary to its beneficial use. Elliott v. Sallee 2 rests on similar principles. In Kilgour v. Ashcom,3 where, in a partition of an estate, a mill had been set off to one of the heirs by metes and bounds, it was held that he had a right to keep up a dam necessary to the mill, although part of it was beyond his boundary as described in the partition.

Perhaps a more difficult decision is to be found in Lampman v. Milks, in the Court of Appeals in New York. A natural water18 N. H. 190. 2 14 Ohio St. 10. 35 Har. & Johns. 82. 4 21 N. Y. 505.

course in running through a parcel of land, flooded one acre of it. The owner dug a new channel for the stream, thereby draining this acre of land, and sold it to the plaintiff, and ten years afterwards he sold the remaining land to the defendant, who restored the stream to its original channel, and thereby again flooded the plaintiff's premises. Mr. Justice Selden's reasoning, in giving judgment for the plaintiff, undoubtedly supports, to some extent, the principle of the destination du père de famille, but it would seem that the decision may well stand upon other and more unquestioned grounds. The stream being a natural watercourse, the owner of the estate might make such disposition of it as he pleased, so long as he did not affect the rights of those above and below him; and it does not appear that drawing it off into a new channel did so. The new channel would, thereupon, become a substitute for the natural one; and the owner, having then sold the acre of land drained, had greatly altered his rights in relation to the property, and neither he nor his grantee could turn the stream back into the old channel, to the plaintiff's inconvenience, any more than they could dig a third channel for the stream, and flood the premises of a stranger. The principle applicable was that of sic utere tuo ut alienum non lædas. The case of Dunklee v. Wilton Railroad1 recognizes this principle, and the decision goes no farther, although perhaps Mr. Justice Bell's dicta do.

The case, which goes farther than any other in this country to support the doctrine of the French law, is Seymour v. Lewis,2 in New Jersey. It was there. held that an aqueduct from a spring in a separate parcel of land to a mill, belonging to the same owner, with the right to use the water from the spring, was reserved by implication to the grantor, as against his grant of that parcel of land by metes and bounds, without reservation of or reference to the easement. Mr. Gale's book was quoted with entire approval by the learned Chancellor. The principal cases relied upon as authorities are Nicholas v. Chamberlain and Lampman v. Milks.

We now come to Pyer v. Carter. It was an action for obstructing a drain running through the defendant's premises. The owner of a house in St. Anne Street, in Liverpool, converted it into two houses, and in July, 1853, conveyed one of them to the defendant in fee, with no reservation of any easement. In September, 1853, he conveyed the other house to the plaintiff in fee. 1 24 N. H. 489, 495.

2 2 Beas. Ch. 439.

At the time of these conveyances, a drain ran under the plaintiff's house, and under the defendant's house, into St. Anne Street sewer. The sewer was necessary to the plaintiff's house, but a new one might have been constructed for about six pounds. The defendant blocked up this sewer, and for this the action was brought. It is stated that, at the trial before Baron Bramwell, the defendant testified that he did not know, at the time of the conveyance to him, of the existence of the sewer; but we cannot perceive how such evidence could be admissible, as it could not control the language of the deed, the terms of which are not given. The learned judge directed a verdict for the plaintiff, reserving leave to move for a verdict for the defendant. The judgment of the court, in bank, was delivered by Baron Watson, who, after stating the facts, said,

"Under these circumstances, we are of opinion that the plaintiff is entitled to our judgment. We think that the owners of the plaintiff's house are, by implied grant, entitled to have the use of this drain for the purpose of conveying the water from his house, as it was used at the time of the defendant's purchase. It seems in accordance with reason, that where the owner of two or more adjoining houses sells and conveys one of the houses to a purchaser, that such house in his hands should be entitled to the benefit of all the drains from his house, and subject to all the drains then necessarily used for the enjoyment of the adjoining house, and that without express reservation or grant, inasmuch as he purchases the house such as it is. If that were not so, the inconveniences and nuisances in towns would be very great."

The court did not consider that the fact that a new drain could be constructed at a small expense material, as the drain was necessary, as the estate was at the time of the conveyance.

The report of this case is exceedingly unsatisfactory. There may have been language in the deeds, or other facts in the case, which would justify the decision, independently of the grounds on which the court place it. The question in all these cases is the intention of the parties, to be shown, of course, in the usual way, and in accordance with the rules of evidence. That it may be highly desirable to have drains, actually used in connection with houses in large cities and towns, pass in conveyances with them, either as parcel or appurtenant, will be admitted by all, and we can understand that great inconvenience would follow from their

not so doing. But all rules of law governing conveyances of land, and regulating the admission of evidence in aid or explanation of written instruments, must be set aside if the presumed inconvenience arising from the thoughtlessness of parties is to govern it. It is not to be wondered at, therefore, that a case open to so many objections as Pyer v. Carter is, as it appears in the reports, should have attracted a vast amount of severe and unfavorable criticism. In the United States, it has been both approved and censured,the balance of opinion, including that of the text-writers, being perhaps in its favor; but the question is still unsettled, and will undoubtedly be much affected by the ultimate decisions of the English courts. We shall therefore examine, briefly, the later English decisions.

In the first place, the principle has been rejected when it has been attempted to apply it to ways and rights of way, although a distinction has been attempted to be made between them and drains, because they are not in the same sense permanent and continuous. The principal case which is cited as sustaining it, is Ewart v. Cochrane, in the House of Lords 2 (so Baron Channell said, in defence of the first decision, in Hall v. Lund;) and in Pearson v. Spencer, in the Exchequer Chamber, Baron Martin said, "I thought that [Pyer v. Carter] a strange decision, but it has recently been confirmed by the House of Lords." We think, however, that Ewart v. Cochrane can be distinguished, and one of the learned Lords, who decided it (Lord Chelmsford), has since wholly dissented from Pyer v. Carter.

Ewart v. Cochrane was an appeal from Scotland. The summons stated that the pursuers, who were tanners, had acquired and been enfeoffed in their tanyard with its parts and purtenants, and that they consequently had a right to use a certain drain or conduit leading from their works to a tank or cesspool on the defender's premises, which the latter had closed up. It appeared that the drain had been used for upwards of thirty years in connection with the tanyard; that Massey, the original owner of both messuages, had sold the tanyard to the pursuer's grantor without allusion to the drain, and afterwards sold the other premises to the defenders.

1 Worthington v. Gimson, 2 E. & E. 618; Dodd v. Burchell, 1 H. & C. 113; Pearson v. Spencer, 1 B. &. S. 571, and 3 id. 761. See also Pheysey v. Vicary, 16 M. & W. 484 ; Warren v. Blake, 54 Maine, 276; Washburn on Easements (2d ed.), 50, 51, 58. 2 4 Macq. 117. 3 1 H. & C. 676. 4 3 B. & S. 761.

The terms of the conveyances are not given; but it is evident that some drain was necessary to the beneficial enjoyment of the tanyard; and, from the report in the Scotch court, it seems that in consequence of the declivity of the land the yard could not be drained in any other direction.1 The drain had been long used for the purpose of carrying away the refuse water from the tanyard, and the case might well stand on the ground that it was de facto annexed to the tanyard, and passed as parcel of it. The circumstance that the tanyard was conveyed away first, would also bring the case rather within Palmer v. Fletcher than Pyer v. Carter.

Lord Campbell said, "I consider the law of Scotland, as well as the law of England, to be, that when two properties are possessed by the same owner, and there has been a severance made of part from the other, any thing which was used, and was necessary for the comfortable enjoyment of that part of the property which is granted, shall be considered to follow from the grant, if there are the usual words in the conveyance. I do not know whether the usual words are essentially necessary; but where there are the usual words, I cannot doubt that that is the law. In the case of Pyer v. Carter, that is laid down as the law of England, which will apply to any drain, or any other easement which is necessary for the enjoyment of the property."

His lordship's language until the last sentence is tolerably well guarded, and, taken with the case before him, perhaps is not open to serious objection, although we do not believe the severance of the two parts created the easement. The remark about Pyer v. Carter is a mere obiter dictum. A dictum, unlike a judgment, depends for its authority, not upon the importance of the court in which it is uttered, but upon the eminence of the judge who utters it; and a dictum by Lord Campbell, whether delivered in the House of Lords, or elsewhere, is of no particular value. Lord Chelmsford enables us to understand the case better. "The right of the pursuers," says he, "must arise from an implied grant, which implication of grant must result from the evidence in the case that the use and enjoyment is necessary to the enjoyment of the tanyard." Thus understood, the case in no wise supports Pyer v. Carter.

2

Hall v. Lund was an action for polluting a natural water1 Cochrane v. Ewart, 22 Court of Sessions Cas. (2d series) 358.

21 H. &. C. 676.