Smith, 6 Conn. 289, was much doubted. See also, De Lure v. Bradbury, 25 N. J. Eq. 70 (1874); Central Railroad Co. v. Valentine, 29 N. J. L. 561 (1862).

These cases rest upon the ground of a "reasonable necessity" for the continual use of the old drain or aqueduct by the new proprietor; and therefore if the latter could build an equally beneficial drain or way, etc., to his own land, with reasonable labor and expense, he does not by such grant acquire a right to continue to use the old one. See Johnson v. Jordan, 2 Met. 234 (1841); Randall v. McLaughlin, 10 Allen, 366 (1865); Dolliff v. Boston & Maine R. P., 68 Me. 173 (1878). Some of the cases may require more, and some less of a necessity, in order to imply a grant, but whatever shades of difference there may be in the cases, it may be safely said, that when the quasi easement is apparent, continuous and practically necessary, it passes by implication, although the deed is silent upon the subject. See the late case of Sanderlin v. Baxter, 76 Va. 299 (1882).

III. The third class of cases, is where the quasi easement claimed by the grantee, is not so reasonably "necessary" for the use and enjoyment of the estate granted as in the last class, but is only highly convenient and beneficial thereto. Here also there is some difference of opinion; some holding that if the quasi easement is apparent and continuous, it passes with the grant, though not necessary; while many require that the alleged easement must have been necessary to the estate granted. In support of the first view, perhaps Lampman v. Milks, 21 N. Y. 505 (1860), is the leading case in America. There A. owned a tract of land, containing about forty acres, through a corner of which a small brook naturally flowed, but he diverted the brook from its

natural course into a different direction through his said tract. Ten years after such diversion he sold the corner lot, through which the brook formerly flowed, to L., who built a house upon it. Subsequently A. sold the balance of the forty-acre tract to M. with the water running in the new artificial channel. Four years afterwards M. dammed up this artificial channel and caused the water to flow back in its former course and it overflowed L.'s house-lot. It was held that L. by his purchase of A. with the water then flowing over A.'s remaining land, to the benefit of the corner lot, acquired a right to have it so continue to flow and that neither A. nor his second grantee M. could return the water to its original course, to the injury of A.'s house-lot. Cave v. Crafts, 53 Cal. 135 (1878), is much like it. But Lampman v. Milks has often been thought an extreme case, and sometimes wholly repudiated: and in New York even, the tendency is not to extend it.

It had previously been held, more obviously by the same court, in Huttemeier v. Albro, 18 N. Y. 48; s. c. 2 Bosw. 546 (1858), that, when several persons owned three lots in New York city, fronting on a public street, and abutting on an alley way in the rear, leading out to a side street, which had been used for many years as a means of access to the rear of said lots, and the owners made partition among themselves, of three lots which referred to the alley as a boundary, but did not include the land thereof within the stated metes and bounds, each owner continued to have a right of way over such alley to his own premises, the same being then open, apparent to observation, and in actual use by the owners for more than forty years. This is much like the principal case. Kieffer v. Imhoff, 26 Penn. St. 438

(1856), is much like it. So is Cihak v. Klekr, 117 Ill. 643 (1886).

The question, whether a way over other land is so "continuous and apparent" as to fall within the rule that it will pass, seems to be a question of fact in each case. It may be so well worn, and so expensively constructed, and so constantly used, that the buyer of the adjoining land might well be supposed to contract with reference to it, and the owner of the land over which it extends might well be apprised that he was taking the estate subject to that burden. If so, it seems to rest on the same ground as water pipes, mill races, etc. See Phillips v. Phillips, 48 Penn. St. 186 (1864); Kieffer v. Imhoff, supra; McCarty v. Kitchenman, 47 Penn. St. 239 (1864); Pennsylvania P. R. Co. v. Jones, 50 Id. 417 (1865); Overdeer v. Updegraff, 69 Id. 119 (1871); Cannon v. Boyd, 73 Id. 179 (1873); Thompson

V.

Miner, 30 Iowa, 386 (1870). This view was elaborately maintained in Harris v. Smith, 40 Upp. Can. Q. B. 33 (1876), where the authorities are fully examined. And see Goodall v. Godfrey, 53 Vt. 219 (1880); Worne v. Marsh, 6 Phila. 33 (1865); The Church v. Vonneida, 6 Id. 557 (1868); Building Association v. Getty, 11 Id. 305 (1876); Robinson v. Thrailkill, 110 Ind. 117; Dillman v. Hoffman, 38 Wisc. 559 (1875); Jarstadt v. Smith, 51 Id. 96 (1881); Galloway v. Bonested, 65 Id. 79 (1886), in which many authorities are cited.

In Havens v. Klein, 51 How. Pr. R. 82 (1875), A. owned two adjoining lots, one with a building on it, the windows of which overlooked the other, and the window shutters when open, swung out over it, and fire escapes also led from the building down into the vacant lot. He sold the lot and building, retaining the other, which he subsequently sold to

a third person, no mention being made in any of the deeds, of any easements or incumbrances. Held, that the buyer of the lot and building acquired a right over the vacant lot for his shutters and fire escapes, as used at the time of the purchase. This is much like the case of United States v. Appleton, 1 Sumn. 492 (1813), a leading case on this particular phase of the subject.

The importance of the visibility and knowledge of an existing privilege or benefit over other land, in order to pass it, unless it is strictly a matter of necessity, is also well illustrated by Tabor v. Bradley, 18 N. Y. 109 (1858). There W. had erected a mill and mill dam on land of H. which flowed back on H.'s land. H. conveyed to W. the land where his mill was situated, by defined metes and bounds, but without mentioning the mill, dam, or water privilege in any way, and H. did not then know his remaining land was flooded by W.'s mill pond. Held, that the deed did not convey any right to W. to continue to flow the land of H.

On the other hand, if the alleged easement is not continuous and apparent, and is not strictly necessary to the estate granted, it is held in many cases, not to pass. And ordinary ways over other land of the grantor have often been thought to be within this class. See the carefully considered case of Outerbridge v. Phelps, 13 Abb. N. C. 117 (1883). And see In re Francie's Appeal, 96 Penn. St. 200 (1880); Adams's Appeal, 7 W. N. C. (1879), S. Ct. Penna., March 3, 1879. So in Fetters v. Humphreys, 18 N. J. Eq. 260 (1867). A. owned a dwellinghouse and stable, used in connection with the house, and he had constructed and used a way from the barn to the street, over other land of his. He devised to his wife "the house

and lot occupied by me." The barn could be reached from the street by constructing a new way through a flower garden on the premises. The other land over which the way to barn was constructed, he devised to other parties. It was held that his widow did not take, under that devise, any light of way over the land devised to others; that it was not a way of necessity, nor an "apparent and continuous" easement, that it had no legal existence as a right of way at his death, and that the words of the devise were not sufficient to include it. This was affirmed in 19 N. J. Eq. 471 (1868) and the authorities examined. See also Oliver v. Hook, 47 Md. 301 (1877); Standiford v. Goudy, 6 W. Va. 364 (1873).

In Stuyvesant v. Woodruff, 21 N. J. Law, 133 (1847), a case elaborately argued, S. owned two adjoining lots, both bounding on a highway, and he had been accustomed to pass from one, on which was his mansion, over the other, to and from the road. After his death, the plaintiff bought the dwelling-house and lot, "with the appurtenances," and sometime afterwards the defendant acquired the premises over which S. had passed and repassed, and closed up the way. Held, that the plaintiff by his deed acquired no right of way over the other land.

In Grant v. Chase, 17 Mass. 443 (1821), it was held, that a conveyance of a specific tract, described by meets and bounds, but carved out of a large tract owned by the grantor, did not carry a right of way or other easement in or over the remaining land of the grantor, which was a matter of convenience, and importance even to the land granted, but not really "necessary" thereto. In this case, there was a well and outhouse on the land retained by the grantor, which had been used before VOL. XXXVI.-39

the conveyance by the occupants of both estates. And the deed of the other tract was, "with all the privileges and appurtenances thereto belonging," but it was held the grantee had no right to use the well and outhouse after such conveyance. See also O'Rorke v. Smith, 11 R. I. 259.

In Denton v. Leddell, 23 N. J. Eq. 67 (1872), the rule was stated to be, "that if the owner of a tract of land, of which one part has had the benefit of a drain, water-pipe, or watercourse, or other artificial advantage in the nature of an easement through or in the other part, sells or devises either part, an easement is created by implication in or to the other part. And this is the case when the servient part is the one sold or devised. But this is confined to continuous and apparent easements." So in Parsons v. Johnson, 68 N. Y. 62 (1877).

That nothing passes by the word "appurtenances" except such incorporeal easements, or rights, or privileges as are strictly necessary and essential to the proper enjoyment of the estate granted; and that a mere convenience is not sufficient to thus create such a right or easement, was again asserted by the Court of Appeals in New York, in the very late case of Root v. Wadhams, Ct. App. N. Y., November 29, 1887. And see Griffiths v. Morrison, 106 N. Y. 165 (1887).

IV. The fourth class of cases is where the grantor claims a right or easement over the estate granted, by an "implied reservation," as it is called, the deed being silent upon the subject. And here the prevailing rule in America (contrary to Pyer v. Carter, 1 H. & N. 916), that although the alleged easement over the granted land be both "continuous and apparent," yet if it be not actually necessary for the estate retained by the grantor, the latter does not retain any right to

such easement, by implied reservation from his own grant.

Carbrey v. Willis, 7 Allen, 364 (1863), is an important case on this point, in which it was held that if the owner of two adjoining estates, through one of which an underground drain exists in favor of the other, conveys the one containing the drain, with full covenants of warranty, retaining the other, he does not by implication retain any right to use the drain for the estate retained, unless it was necessary to the enjoyment thereof, was annexed de facto to the estate so retained, and was in actual use at the time of the grant. And no "necessity" can be deemed to exist, if a similar privilege can be secured by reasonable trouble and expense. This is undoubtedly the law of Massachusetts. See Randall v. McLaughlin, 10 Allen, 366 (1865); Parker v. Bennett, 11 Id. 319 (1865); Buss v. Dyer, 125 Mass. 291 (1878). Scott v. Beutel, 23 Gratt. 1 (1873) is much like Carbrey v. Willis, 7 Allen, 364. And see Hardy v. McCullough, 23 Gratt. 259 (1873); Shoemaker v. Shoemaker, 11 Abb. N. C. 80 (1882). And the same has recently been held in Maine: Warren v. Blake, 54 Me. 276 (1866), a valuable case approving Carbrey v. Willis.

So in Burr v. Mills, 21 Wend. 290 (1839), it was held, that if an owner of land with a mill and mill-pond upon it, conveys away that portion which is flowed by the pond, retaining the mil', he does not retain by implication any right to continue to flow the portion so sold. "He might as well," said the court, "claim to plow and crop the land sold." Preble v. Reed, 17 Me. 175, is much like it.

In Butterworth v. Crawford, 46 N. Y. 353 (1871), A. owned two lots 83 and 85 on a street in New York city, with a privy vault under the dividing

line between them, which was used by both estates. He conveyed to C. lot 85, through which an underground drain extended from said vault to the public sewer, not expressly reserving any right to the drain. He subsequently sold lot 83 to B. Subsequently C. in building on his own land cut off the drain, for which B. sued him. Held, that when A. sold the first lot to C. without mentioning the drain, he did not impliedly retain a right to continue the drain, and did not give any such right to B. And see Schrymsen v. Phelps, 62 How. Pr. R. 1 (1881).

On the other hand in Seibert v. Levan, 8 Penn. St. 383 (1848), quite contrary to Burr v. Mills, 21 Wend. 292, it was distinctly decided, that if A. owning two tracts, builds a mill with a dam and race way to supply the same, and afterwards sells the land containing the dam and race way, but retaining the mill, by deed with no express reservation of the dam, or artificial race way, he still retains the right to use the same; and the grantee is liable for obstructing or diverting the water. Two judges dissented.

Still stronger in the same line is Seymour v. Lewis, 13 N. J. Eq. 439 (1861) in which the owner of a paper mill had by an artificial channel, conveyed the water thereto from a spring lot, and sold the latter, retaining the mill; it was held, that the purchaser of the spring lot took it subject to the burden of the privilege, and had no right to interfere with the continued use of the water by the grantor for his mill.

This was undoubtedly the French law, destenation du père de famille, as explained by Pardessus, Traite des Servitudes, 288; but such apparently is not the common law of England, or of America.

EDMUND H. BENNETT.