Powers purchased from Eifort four lots fronting on Winchester avenue. In the year 1911 she purchased another lot adjoining the four lots on the rear. At the time she purchased the rear lot, known as lot No. 5, there was a roadway leading therefrom and across the remainder of Eifort's land to Winchester avenue. In the year 1915 Oliver Ward purchased from Eifort a lot fronting on Winchester avenue and adjoining the property of Miss Powers. The roadway in question ran over this lot, and soon after its purchase Ward obstructed the pass way by erecting a dwelling house thereon. Miss Powers's lots lying on Winchester avenue are very high, and the approach therefrom to Winchester avenue is not only very steep, but there is a retaining wall along the property that was erected by the street car company.

While there was some evidence of changes in the roadway from time to time to make the travel thereon more convenient, the evidence leaves no doubt that the roadway was well defined, and that the line of travel remained substantially the same. The roadway appears to have been used by Eifort and those having business with him, and perhaps occasionally by members of the public, for a great many years, but the use by the public fell far short of what was necessary to show a prescriptive right to the pass way. Miss Powers herself did not show title by prescription, as her use of the pass way did not continue as long as fifteen years. Not only so, but as lot No. 5 was not wholly surrounded by the other lands of Eifort, or by his land and the land of others, it may be doubted if a way of necessity arose. But these are not the only ways in which the title to an easement may arise. The authorities are agreed, and such is the rule in this state, that where the owner of an entire tract of land, or of two or more adjoining parcels, employs a part thereof so that one derives from the other a benefit or advantage of a continuous and apparent

Easements

parent.

nature, and sells the one in favor of which such continuous and apparent grant with adquasi easement ex- vantage apists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implica tion. 19 C. J. 914: Godman v. Jones, 180 Ky. 217, 202 S. W. 662; Skaggs v. Carr, 178 Ky. 849, 200 S. W. 27; Stone v. Burkhead, 160 Ky. 47, 169 S. W. 489. Here the easement in question was used by the grantor for the benefit of the entire property. It was not only apparent and continuous, but appurtenant to lot No. 5. Though it be true that a right of way from lot No. 5 might be cut through one of Miss Powers's lots facing on Winchester avenue, the contour of the land, the precipitous decline to Winchester avenue, and the necessity for a retaining wall, make it impracticable to do that without incurring an expense far in excess of the original cost of lot No. 5. In view of these conditions, we think the roadway in question was reasonably necessary for the enjoyment of lot No. 5, and that there was an implied grant of the use thereof in the conveyance by Eifort of lot No. 5.

In view of the fact that Ward's residence has already been constructed over the pass way, and its removal would entail great expenses, we think the ends of justice may be fully met by requiring Ward, at his election, either to provide Miss Powers another pass way equally safe and convenient as the pass way in question, and to pay her damages for the obstruction of the latter up to the present time, or to pay her damages

for the permanent remedy for obstruction of the

obstruction.

pass way in question. To this end the parties may take such additional evidence as they may desire.

Judgment reversed and cause remanded for proceedings consistent with this opinion.

Whole court sitting.

I. Introductory:

a. Scope, 233.

b. In general, 233.

II. Ways by implied grant:

a. Not limited to ways of necessity, 234.

b. Limited to ways of necessity: 1. In general, 238.

2. Modification of meaning of "necessity," 240.

1. Introductory.

a. Scope.

This annotation does not include the subject of ways of necessity by implication.

It is not intended to include cases where the land conveyed is in terms bounded by the way in question; nor cases where land is plotted into lots and conveyed with reference to the plot; nor cases where rights of way are merely incidental to other easements, as those of water, etc., as for example see, Egelund v. Fayter (1918) 51 Utah, 579, 172 Pac. 313. It is further not intended to include cases relating to easements in halls, stairways, doorways, or fire escapes, but a few of such cases are cited in illustration of the general principles.

(This annotation does not include cases where a right of way is described in the deed and the question is whether it is appurtenant or in gross. See, for example, Nay v. Bernard (1919) 40 Cal. App. 364, 180 Pac. 827.)

For easement of way of necessity as affected by common ownership of parcels which are not accessible one from the other, see the annotation in 5 A.L.R. 1557; for implied easement or servitude of flowage on severance of tract, see the annotation in 16 A.L.R. 1074; for right of owners of parcels upon dividing the dominant tenement to use right of way, see the annotation in 8 A.L.R. 1368; for implied easement upon severance of tract where building is near or upon dividing line, see the annotation in

II. continued.

c. Use of particular words-Eng-
lish cases,
240.

III. Ways by implied reservation, 242.
IV. Simultaneous sales, 243.

V. Ways implied by devise, 244. VI. Partition and division, 246. VII. Statutes, 247.

VIII. Miscellaneous, 248.

9 A.L.R. 488; for spur or branch track as visible easement or servitude on division of land, see the annotation to Nauman v. Treen Box Co. 32 A.L.R. 1347.

b. In general.

Where an easement of way by implication is claimed on severance of a tract of land, if the claim is made on the ground of necessity, it may relate either to an existing way or to a new way, but if the claim is made on the ground of an existing, apparent, visible easement of way then, of course, it relates only to existing ways. As heretofore stated, this annotation does not include ways of necessity.

Where an owner who has used a roadway or pathway over one part of his land for the benefit of another part of his land conveys the part over which the road passes, it is held by the great weight of authority that, in the absence of apt words in the conveyance, there will not be reserved by implication a right to use the way for the benefit of his remaining land unless it be a way of necessity.

owner

Where, however, such conveys the part of the land so benefited, the courts are not agreed whether, in the absence of apt words in the conveyance, a right to use the roadway or pathway may pass by the conveyance by implication, it not being a way of necessity.

The courts that limit easements of way by implied grant on severance to those of necessity are moved, to some extent at least, by the old rule that

easements by implied grant on severance only arose in case the easement was continuous; for, according to the old definition, a right of way is not a continuous easement, as it requires the act of man for its exercise.

"Many of the classifications of easements in the Code of France are recognized by the courts of common law, as, for instance, that of continuous and discontinuous, which are thus defined: 'Continuous are those of which the enjoyment is or may be continual, without the necessity of any actual interference by man, as a waterspout or a right of light or air. Discontinuous are those the enjoyment of which can be had only by the interference of man, as rights of way, or a right to draw water.'" Washb. Easements & Servitudes, 4th ed. p. 21.

Those authorities which hold that, on severance, an easement of way by implied grant is not limited to ways of necessity, sometimes do so by disregarding the requirement of the old rule that the easement should be continuous; but in two or three jurisdictions, particularly in Pennsylvania, a new definition is given to the word "continuous," and it is there held that a right of way may be continuous. An explanation of the use of the word "continuous" as applied to easements of way in Pennsylvania is made in the recent case of Nauman v. Treen Box Co. (1924) Pa. —, 32 A.L.R. 1344, 124 Atl. 349.

In Baker v. Rice (1897) 56 Ohio St. 463, 47 N. E. 653, it was said: "But it is claimed that only such easements as are termed 'continuous' will pass by implication in a grant, and that such as are termed 'discontinuous' will not. This is a distinction of the civil law, and has been incorporated in the law of some of the states, particularly Maine and Massachusetts. The former are such as operate without the intervention of man, such as drains and sewers; the latter require the intervention of man in their use, such as ways. The distinction is somewhat arbitrary, and is not uniformly adopted, as will appear from the cases cited. The better rule, and the one now more generally adopted,

is not to consider the particular kind of easement, but whether it is apparent, designed to be permanent, and is reasonably necessary to the use of the premises granted."

With respect to the doctrine of the creation of easements by implication, there is now some confusion as to its exact scope in the United States. 9 R. C. L. 754.

The inherent difficulty of the subject of easements by implication upon severance of title is particularly illustrated in the cases on easements of way. The law is by no means plain or settled on this subject. In few matters are obiter statements more untrustworthy.

After all, the question is what the parties may reasonably be supposed to have intended, and how far evidence of such intent may be added to the writing.

11. Ways by implied grant.

a. Not limited to ways of necessity. There are many cases where an owner who has used an apparent roadway or pathway over one part of his land for the benefit of another part conveys the part so benefited, in which it has been held under the circumstances that a right to use the roadway or pathway passed by the conveyance by implication, it being reasonably necessary for the use and enjoyment of the property granted.

United States. United States v. Appleton (1833) 1 Sumn. 492, Fed. Cas. No. 14,463 (doorway and courtyard).

California. Vargas v. Maderos (1923) 191 Cal. 1, 214 Pac. 849 (under California statute; see infra, VII.).

Illinois. Cihak v. Klekr (1886) 117 Ill. 643, 7 N. E. 111 (alley); Feitler v. Dobbins (1914) 263 Ill. 78, 104 N. E. 1088 (city passageway); Keen v. Bump (1923) 310 Ill. 218, 141 N. E. 698. See also Martin v. Murphy (1906) 221 III. 632, 77 N. E. 1126 (city passageway).

Indiana. Parish v. Kaspare (1887) 109 Ind. 586, 10 N. E. 109 (country property); Wilson v. Glascock (1920) 74 Ind. App. 255, 126 N. E. 231 (same).

Maryland. Burns v. Gallagher (1884) 62 Md. 462 (alley); Dinneen v. Corporation for Relief of Widows & Children (1911) 114 Md. 589, 79 Atl. 1021 (suburban property).

New York. Voorhees v. Burchard (1873) 55 N. Y. 98 (mill property). See also Mattes v. Frankel (1899) 157 N. Y. 603, 68 Am. St. Rep. 804, 52 N. E. 585.

Ohio.-Mosher v. Hibbs (1902) 24 Ohio C. C. 375 (country property).

Oregon.-German Sav. & L. Soc. v. Gordon (1909) 54 Or. 147, 26 L.R.A. (N.S.) 331, 102 Pac. 736 (city passageway).

Pennsylvania.-Zell v. First Universalist Soc. (1888) 119 Pa. 390, 4 Am. St. Rep. 654, 13 Atl. 447 (alley); Manbeck v. Jones (1899) 190 Pa. 171, 42 Atl.

536 (country property); Liquid Carbonic Co. v. Wallace (1908) 219 Pa. 457, 26 L.R.A. (N.S.) 327, 68 Atl. 1021 (ungraded city property); Building Asso. v. Getty (1876) 11 Phila. 305 (alley). See also Pennsylvania R. Co. v. Jones (1865) 50 Pa. 417.

Texas.-Miles v. Bodenheim (1917) Tex. Civ. App. 193 S. W. 693 (alley). See also Weitzman v. Lee (1924) Tex. Civ. App. - 262 S. W. 859. Utah.-Rollo v. Nelson (1908) 34 Utah, 116, 26 L.R.A. (N.S.) 315, 96 Pac. 263 (walk on city property). See also Wade v. Dorius (1918) 52 Utah, 310, 173 Pac. 564.

Virginia. Hammond V. Ryman (1916) 120 Va. 131, 90 S. E. 613 (country property).

Washington.-Bailey v. Hennessey

(1920) 112 Wash. 45, 191 Pac. 863 (alley).

England. (See also cases cited infra, II. c.) Bayley v. Great Western R. Co. (1884) L. R. 26 Ch. Div. 434, 51 L. T. N. S. 337-C. A.; Brown v. Alabaster (1887) L. R. 37 Ch. Div. 490, 57 L. J. Ch. N. S. 255, 58 L. T. N. S. 265, 36 Week. Rep. 155.

Some of the cases hold that it is sufficient if the way is highly convenient and beneficial (Cihak v. Klekr (1886) 117 Ill. 643, 7 N. E. 111; Keen v. Bump (1923) 310 Ill. 218, 141 N. E. 698); necessary to make the grant effectual and beneficial (Burns v. Gallagher (1884) 62 Md. 462); necessary for its convenient use (Pennsylvania R. Co. v. Jones (Pa.) supra); reasonably necessary to the enjoyment of the land and materially adding to its value (Mosher v. Hibbs (Ohio) supra; Baker v. Rice (1897) 56 Ohio St. 463, 47 N. E. 653, infra, IV.).

Some of the cases lay stress on the feature of permanency. It will be recognized that permanent formed roads are more usual in cities than in the country. There is, at least, one case in which it was held that the intent of the grantor that his road should be merely temporary would not prevent a right of way by implication in view of the apparent way. Thus, in Liquid Carbonic Co. v. Wallace (1908) 219 Pa. 457, 26 L.R.A. (N.S.) 327, 68 Atl. 1021, it was held that the fact that a road over one portion of a tract of land for the benefit of another portion was intended by the owner to be only temporary would not prevent a right to its permanent use from passing with the grant of the latter portion, where, at the time of the grant, it was apparent, with nothing to indicate that it was not intended to be permanent.

In Keen v. Bump (1923) 310 Ill. 218, 141 N. E. 698, it was held that a grant of an easement of way would be implied where it was of a permanent, open, and visible character, and that the owner of the entire estate had so used it that one portion of the estate had derived a benefit and advantage from the use of the way, and had then sold a portion of the estate deriving

such benefit, it not being essential that the easement must be really necessary for the enjoyment of the estate granted, but sufficient if it is highly convenient and beneficial therefor. The pleading in this case alleged a way of necessity.

In Parish v. Kaspare (1887) 109 Ind. 586, 10 N. E. 109, in upholding a complaint on demurrer, the court said, inter alia: "We suppose it to be perfectly clear that if the owner of land annexes to part of it a right of way as appurtenant to the land, and then conveys the land to which the way is made an appurtenance, his grantees, near and remote, acquire an easement."

In a case where it is difficult to see how the question was involved, the court said: "It is the settled doctrine of this state that a permanent road established by the owner over his property, necessary for its convenient use, will not be destroyed by his sale or his encumbrance." Pennsylvania R. Co. v. Jones (1865) 50 Pa. 417.

In Burns v. Gallagher (1884) 62 Md. 462, a case where an implied grant of the use of an alley was allowed, the court said that the general principle of law was that "where a person makes a grant or conveyance of property he impliedly grants that also which is necessary to make the grant or conveyance of the principal subject effectual and beneficial." The court speaks of the use as being "by implied grant, or rather by way of estoppel upon the special facts of the case."

It will be seen that in POWERS v. WARD (reported herewith) ante, 230, the owner of an entire tract of land had used a roadway across it to reach a public highway, and sold a part of the land which had the benefit of this road, which road was apparent and continuous and appurtenant to the lot sold, and, while not a way of strict necessity, was reasonably necessary for the enjoyment of such lot. It was held that there was an implied grant of the use of such road in the sale of such lot.

A right of way was held to have arisen over an alleyway by implied

grant as reasonably necessary for the fair enjoyment of the property granted, being an open and notorious servitude apparently impressed by the owner upon one part of his estate in favor of another, and existing at the time of severance. Bailey v. Hennessey (1920) 112 Wash. 45, 191 Pac. 863, where the court said: "We have held that a right of way by implication arises only from necessity and never from convenience, but have not established heretofore the measure of such necessity. . . . It is clear that a reasonable necessity exists for the perpetuation of a condition existing at the time of the severance of the estate and which has been in continuous, open, and apparent use, and acquiesced in by all parties interested for a long term of years."

In Brown v. Berry (1868) 6 Coldw. (Tenn.) 98, where an implied grant of a right of way was also sustained on the ground of a way of necessity, the court also said and held that the dominant tenement "abutted on the way; and the way was open, apparent, had been continuously used for the lands, and was necessary to ingress and egress between the land and the public way. 'Necessary,' as here used, is not intended to express a condition of what, in relation to private ways, is called 'of strict necessity.'"

In Morris v. Blunt (1916) 49 Utah, 243, 161 Pac. 1127, the court, while declining to enlarge a granted easement of way beyond its description, stated that the requirement of reasonable necessity seems to be supported by the weight of authority and by reason, as distinguished from absolute necessity.

Where the owner of a mill had for many years used, in connection with it, an open space in front of it, extending to the highway, for the deposit of logs and lumber and access to the mill from the highway, and conveyed the mill site, "being the mill property of the said" grantor, giving metes and bounds, and the open space was necessary to the beneficial enjoyment of the mill as such way and yard, the court considered that an easement in the open space had passed