course. In 1855, Shaw, the owner in fee of two mills, leased one to Pullan, who carried on the business of a bleacher, and discharged the refuse from his works through a drain into the stream. In 1858, Pullan surrendered his lease, and Shaw granted a new one to the defendant, which demised to the defendant, described therein as a bleacher, "all that messuage or tenement, with the garden, out-buildings, and closes, or parcels of land therewith occupied, containing, with the said garden and land on which the said buildings are erected, nine acres, one rood, late in the occupation of Matthew Pullan," "with the appurtenances," habendum, "all and singular, the before described premises, with the appurtenances," for eleven years. The lease contained a covenant to repair the messuage, and "all and singular the gates, stiles, posts, rails, locks, goits, wears, sluices, waterbanks, dams, and reservoirs for water, hedges, ditches, mounds, ponds, trenches, and fences, of and belonging to the said premises." There was, likewise, another reference to the defendant's business of bleaching. In 1859, the plaintiff bought the other mill. It was held that the demise to the defendant carried with it the right to use the drain in the manner in which it had been used by Pullan, as against a subsequent grantee from Shaw, and we think the decision can well be sustained on these facts, particularly considering the singularly broad language of the lease. So far from sustaining Pyer v. Carter, we think this case shakes it. Baron Channell endeavors to bolster up that case, by saying that it had been confirmed by the House of Lords in Ewart v. Cochrane. Baron Wilde (now Lord Penzance) admits "that, in cases of implied grant, the implication must be confined to a reasonable use of the premises for the purposes for which, according to the obvious intention of the parties, they are demised;" and Baron Martin, the ablest man and best judge on the bench, rests his judgment on Ewart v. Cochrane. In a previous case in the same volume, this learned judge said that "Pyer v. Carter went to the very extent of the law." 1

Meanwhile, this subject was carefully considered by the Supreme Court of Massachusetts, in the case of Carbrey v. Willis. It was an action of covenant broken on the covenants of warranty and against encumbrance in a deed of a parcel of land described by metes and bounds, and through which there was an alleged right 27 Allen, 364.

1 Dodd v. Burchell, 1 H. & C. 113.

of drainage from an estate above this. Both had originally belonged to the same person, and the plaintiff's estate was conveyed first, as above. A drain had long existed from the upper estate through the plaintiff's, of which he had no knowledge at the time of the conveyance. Mr. Justice Hoar, in delivering the judgment of the court, after quoting from the opinion of Chief Justice Shaw, in Johnson v. Jordan, said,

"Where, as in the case at bar, the grant of the lower estate precedes that of the other, we think the true rule of construction is this that no easement can be taken as reserved by implication, unless it is de facto annexed and in use at the time of the grant, and is necessary to the enjoyment of the estate which the grantor retains. And this necessity cannot be deemed to exist, if a similar privilege can be secured by reasonable trouble and expense.

"In some recent cases in England, a different doctrine seems to have prevailed; and even in the case of a grant of a part of an estate, an easement has been held to be reserved to the grantor as parcel of the remainder, without an express reservation, if it were de facto used in connection with it at the time of the grant, and were necessary to its enjoyment in the condition in which the estate then was.2 In Pyer v. Carter, it was held that it would make no difference, in the application of the principle, if a new drain could be constructed on the plaintiff's own land at a trifling expense. The terms of the deed are not given in the report of the case, and the decision may, perhaps, be supported on the ground that the conveyance was of part of a house having obvious existing relations to and dependencies upon the other part of the building. Thus it is a familiar principle, that, in a grant of a messuage, a farm, a manor, or a mill, many things will pass which have been used with the principal thing, as parcel of the granted premises, which would not pass under the grant of a piece of land by metes and bounds. In such cases, it is only a question of the construction of terms of description. But where there is a grant of land by metes and bounds, without express reservation, and with full covenants of warranty against encumbrances, we think there is no just reason for holding that there can be any reservation by implication, unless the easement is strictly one of necessity.

1 2 Met. 234.

2 The learned judge cited Pyer v. Carter, Ewart v. Cochrane, and Hall v. Lund.

Where the easement is only one of existing use and great convenience, but for which a substitute can be furnished by reasonable labor and expense, the grantor may certainly cut himself off from it by his deed, if such is the intention of the parties. And it is difficult to see how such an intention could be more clearly and distinctly intimated than by such a deed and warranty."

We have quoted at length from this able judgment, because, reaffirming, as it does, Chief Justice Shaw's views in Johnson v. Jordan, it sets out the best statement of the true doctrine to be found in our American cases. Neither of these learned judges would be likely to favor such an innovation upon the common law rules of conveyancing as the French doctrine of the destination du père de famille.

In the case of Suffield v. Brown, it appeared that one Knox owned a dry dock, and adjoining strip of land and coal wharf on the Thames at Bermondsey; that when a vessel of any size was in the dock, her bowsprit extended over this piece of land adjoining the wharf thirteen or fourteen feet; that, in 1845, Knox sold the strip of land and coal wharf to the defendant's grantor in fee simple "with all the privileges, easements, and appurtenances to the premises belonging, and all the estate, right, title, interest, property, claim, and demand whatsoever, both at law and in equity of the vendor, in, to, or out of the same hereditaments and premises, and every part thereof." Afterwards, Knox conveyed the dock to the plaintiffs, who filed a bill in equity to restrain the defendant from building on the strip of land, on the ground that the right to have the bowsprit of a vessel project over the land was essential to the dock, and was a privilege to which they were entitled as owners of the dock. Lord Romilly, Master of the Rolls, granted an injunction, for reasons resting upon the theory which we have been discussing. His authorities were Hinchcliffe v. Earl of Kinnoul and Pyer v. Carter. This decree was reversed by Lord Westbury, on appeal. In an elaborate opinion, that very eminent judge reviewed the whole subject, and denied the applicability to English law of the destination du père de famille, and he treated the comparison of the English law of easements with it as "a mere fanciful analogy, from which rules of law ought not to be derived." His lordship says,

"It seems to me more reasonable and just, to hold that if the

1 33 L. J. (N. s.) Ch. 249; s. c. 10 Jur. N. s. 111, and 9 Law Times, N. s. 627.

grantor intends to reserve any right over the property granted, it is his duty to reserve it expressly in the grant, rather than to limit and cut down the operation of a plain grant (which is not pretended to be otherwise than in conformity with the contract between the parties) by the fiction of an implied reservation. If this plain rule be adhered to, men will know what they have to trust, and will place confidence in the language of their contracts and assurances.'

"I cannot agree that the grantor can derogate from his own absolute grant, so as to claim rights over the thing granted, even if they were at the time of the grant continuous and apparent easements enjoyed by an adjoining tenement which remains the property of him, the grantor. Consider the easements as if they were rights, members, or appurtenances of the adjoining tenement, they still admit of being aliened or released, and the absolute sale and grant of the land in or over which they are claimed is inconsistent with the continuance of any thing abridging the complete enjoyment of the thing granted, which is separable from the tenement retained, and can be aliened or released by the owner.

"In Pyer v. Carter, the owner of two houses sold and conveyed one of them to a purchaser absolutely, and without any reservation, and he subsequently sold and conveyed the remaining house to another person. It appeared that the second house was drained by a drain that ran under the foundation of the house first sold, and it was held that the second purchaser was entitled to the ownership of the drain—that is, a right over the freehold of the first purchaser, because, said the learned judges, the first purchaser takes the house such as it is.' But, with great respect, the expression is erroneous, and shows the mistaken view of the matter, for in a question, as this was, between the purchaser and the subsequent grantee of his vendor, the purchaser takes the house, not such as it is,' but such as it is described, and sold and conveyed to him in and by his deed of conveyance; and the terms of the conveyance in Pyer v. Carter were quite inconsistent with the notion of any right or interest remaining in the vendor. It was said by the court that the easement was apparent,' because the purchaser might have found it out by inquiry; but the previous question is whether he was under any obligation to make inquiry, or would be affected by the result of it, which, having regard to his contract and conveyance, he certainly was not.

6

"The easement claimed by the plaintiff is not 'continuous,' for that means something, the use of which is constant and uninterrupted; neither is it an apparent' easement, for, except when a ship is actually in the dock, with her bowsprit projecting beyond its limits, there is no sign of its existence; neither is it a necessary easement,' for that means something without which (in the language of the treatise cited) the enjoyment of the dock could not be had at all. But this is irrelevant to my decision, which is founded on the plain and simple rule, that the grantor, or any person claiming under him, shall not derogate from the absolute sale and grant which he has made."

This decision has so shaken the authority of Pyer v. Carter, that the latter case has since generally been considered as overruled. The editor of the last edition of Mr. Gale's work feels constrained to qualify a good deal the statements in former editions, and admits, in the preface, that the doctrine of the author, "which derived some support from Pyer v. Carter, has been overruled." In the more recent case of Crossely v. Lightowler, Lord Chelmsford, after quoting from Lord Westbury's judgment, says, "I entirely agree with this view. It appears to me to be an immaterial circumstance that the easement should be apparent or continuous, for non constat that the grantor does not intend to relinquish it unless he shows the contrary by expressly reserving it." In Morland v. Cook,2 Lord Romilly makes some obiter criticisms upon Lord Westbury's opinion, and defends his own judgment in Suffield v. Brown.

In Randall v. McLaughlin, Mr. Justice Hoar said, "The authority of Pyer v. Carter, the leading English case on which the plaintiff relies, was wholly denied by the Chancellor of England in the opinion given in Suffield v. Brown, which contains an elaborate review of the whole doctrine, resulting in conclusions substantially like those to which we came in Carbrey v. Willis." In the recent case of Philbrick v. Ewing, this learned judge said,

"It is, indeed, well settled that a conduit or pipe to conduct water to a house will pass as appurtenant to a grant of the house. But an easement, where it is not expressly described in the conveyance, must actually belong to the estate conveyed, in order

1 Law Rep. 2 Ch. 478, 486.

3 10 Allen, 366, 368.

2 Law Rep. 6 Eq. 252, 265.

4 97 Mass. 133.