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by the deed. Voorhees v. Burchard takes the property subject to the ease(1873) 55 N. Y. 98. Compare Plimp- ment or servitude." ton v. Converse (1870) 42 Vt. 712, In Building Asso. v. Getty (1876) infra.

11 Phila. (Pa.) 305, it was held that In Bayley v. Great Western R. Co. an easement of way over an alley (1884) L. R. 26 Ch. Div. (Eng.) 434, passed by sheriff's sale of the dom51 L. T. N. S. 337–C. A., it was held inant part, it being notoriously and that a right of way over a road made plainly visible as a convenience. by the vendor passed by implied In Weitzman v. Lee (1924) Tex. grant.

Civ. App. —, 262 S. W. 859, where the In Brown v. Alabaster (1887) L. R. court, on an execution, in dividing the 37 Ch. Div. (Eng.) 490, 57 L. J. Ch. property to be sold as business propN. S. 255, 58 L. T. N. S. 265, 36 Week. erty from the part to be retained as Rep. 155, it was held that a right of a homestead, said: "The judgment way over a formed road passed by im- preserves the front yard and sets it plied grant, the vendor being the apart to the use of the occupant of lessee of two adjoining properties in the dwelling and enjoins its sale, totwo leases of the same lessor, and he gether with the plank walk around assigned one of the leases. The court two sides of the bakery to the front considered that the road, being a street. There being an obvious and formed road, is taken, in cases like permanent servitude imposed by apthis, to be a continuous and apparent pellant upon the estate in the estabeasement.

lishment of such easements, the court In Manbeck v. Jones (1899) 190 Pa. properly respected them in his judg171, 42 Atl. 536, a grant of easement ment.” of a fenced way by implication was

Miscellaneous. allowed as a continuous and apparent

Where the owner of several city servitude in a sale of land by a father lots constructed a passageway over to a son.

one of the lots for the benefit of the In Rightsell v. Hale (1891) 90 Tenn.

other lots, and then conveyed the lots 556, 18 S. W. 245, where it was held to various parties, the respective times that a grant of a right of way would of the deeds not appearing in the rebe implied on severance of the land, port of the case, it was held that there the way in question had been con- was easement by implication. tinually used by the owner. In that Martin v. Murphy (1906) 221 Ill. 632, case, in 1871, the owner by parol gave

77 N. E. 1126. the dominant tenement to his daugh

In Dinneen v. Corporation for Reter and the servient tenement to his

lief of Widows & Children (1911) 114 son, placing each then in possession;

Md. 589, 79 Atl. 1021, where the owner

of land through which there ran a in 1876, he united with his son in a deed of his part, and in 1879 he made

private road sold a portion of the a deed to his daughter of her part.

land, the road not affording the only

means of access to such portion, but Judicial or sheriff's sale.

being reasonably necessary for a In Zell v. First Universalist Soc. means of access, and thereafter he (1888) 119 Pa. 390, 4 Am. St. Rep. sold another portion of the land to a 654, 13 Atl. 447, an easement in an third person, including one half of the alley by implication was allowed as road, which was then open and visible, passing by administrator's deed, the it was held that the land secondly sold court stating: “Where a continuous was burdened with the easement of and apparent easement or servitude a road in favor of the land sold first. is imposed by the owner on one por- (The report seems to make it at least tion of his real estate for the benefit doubtful whether there was any other of another, the law is well settled that way of access that was fit for travel, a purchaser at private or judicial sale, but the headnote states that the road in the absence of an express reserva- in question was not the only means tion or agreement on the subject, of access.)


In Mattes v. Frankel (1899) 157 N. v. Roland (1920) 217 Ill. App. 435, Y. 603, 68 Am. St. Rep. 804, 52 N. E. it was held that a lessee had under its 585, where the plaintiff conveyed to lease no implied easement “to use the the defendant a property about 19 fire escape in transferring refuse feet wide and nearly 500 feet deep, from its kitchen to a garbage box od with a store and dwelling in front, the alley." the full width of the lot, and a barn In Plimpton v. Converse (1870) 42 and shed about 100 feet in the rear of Vt. 712, it was held that the deed of the front buildings, and during the a mill with the appurtenances would regotiations he pointed out a lane on not carry the right of way over an his own lot as the right of way to the open space adjoining the mill, albarn, it was held that the defendant though that had been used for such was entitled to such right of way to purpose for many years by the owner, the barn. Two judges dissented on there being sufficient other means of the ground of the Statute of Frauds. ingress and egress; the way claimed

In Wade v. Dorius (1918) 52 Utah, being a way of convenience, and not 310, 173 Pac. 564, it was held that the of necessity. Compare Voorhees v. grantor conveyed by implication, as Burchard (1873) 55 N. Y. 98, supra. appurtenant to the land conveyed, a In a case which seems, however, to right of way over so much of a strip have been governed by the documents, in question as was reasonably neces- it was held that there was no implied sary as a means of ingress and egress grant of an easement of a way. Franto and from the land so conveyed, al- cies's Appeal (1880) 96 Pa. 200. though there was no evidence of a See also in this connection, Duvall visible way. It was held admissible v. Ridout (1914) 124 Md. 193, L.R.A. to show the statements by the grantor 1915C, 345, 92 Atl. 209, infra, II. b, 1, at the time of the purchase, on the where an implied grant of an uninground that the deed, while convey- closed, unimproved way was denied. ing appurtenances as a matter of law, It may be here noted that in a case was silent

as to what the appur- where an easement of way was sustenances were, and that therefore tained on various grounds, the court there was a latent ambiguity in the said that the evidence was conflicting deed in this respect, which was as to whether, prior to the purchase proper subject of explanation.

of the land, there was such a conIn some cases where the doctrine tinuous use of the pass way as to of implied grant of way on severance render it visible or permanent, and is not disputed, the right of way was that it might well be doubted as to denied under the circumstances of whether it could be considered an the case.

appurtenance. McWhorter HolIn

McPherson Acker (1879) comb (1923) 200 Ky. 498, 255 S. W. MacArth. & M. (D. C.) 150, 48 Am. 130. Rep. 749, the court, while apparently

b. Limited to ways of necessity. conceding that on severance there might be an easement of way by im

1. In general. plied grant, held that under the cir- Many cases illustrate the doctrine cumstances of the case there was no that, on severance of a tenement, implied grant, and that it was proper there cannot be an easement of way to permit the grantor to show that on by implied grant over other lands of the sale he informed the buyer that the grantor, where it is not a way of there would be no easement of way. necessity.

In Ricks v. Scott (1915) 117 Va. Colorado.—Ward v. Farwell (1881) 370, 84 S. E. 676, a right of way of 6 Colo. 66. a cart path by implied grant was de- Kentucky.--Hall v. McLeod (1859) nied as not apparent, continuous, or 2 Met. 98, 74 Am. Dec. 400. reasonably necessary to the enjoy- Louisiana.-Cleris v. Tieman (1860) ment of the land granted.

15 La. Ann. 316. In Bloomington Lodge, B. P. 0. E. Maine.--Warren v. Blake (1866) 54



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Me. 276, 89 Am. Dec. 748; Stevens v. land (although such way may be highOrr (1879) 69 Me. 323; Doten v. Bart- ly convenient, and apparent upon the lett (1910) 107 Me. 351, 32 L.R.A. face of the earth and in actual use (N.S.) 1075, 78 Atl. 456. See also at the time of the conveyance, and the Kingsley v. Gouldsborough Land deed contains the words 'with all the Improv. Co. (1894) 86 Me. 279, 29 Atl. privileges and appurtenances'), un1074, 25 L.R.A. 502.

less such way is clearly necessary to Maryland.-Oliver v. Hook (1877) the beneficial use and enjoyment of 47 Md. 301.

the estate conveyed." Massachusetts. Grant V. Chase The principle that, upon the sever(1821) 17 Mass. 443, 9 Am. Dec. 161. ance of a heritage, a grant will be

Michigan.—Morgan v. Meuth (1886) implied of continuous and apparent 60 Mich. 238, 27 N. W. 509.

easements, used by the owner, will Mississippi.-Bonelli Bros. v. Blake- not carry the right to use a way. more (1888) 66 Miss. 136, 14 Am. St. Oliver V. Hook (1877) 47 Md. 301 Rep. 550, 5 So. 228.

(where the way was marked by tracks Missouri.–Vossen v. Dautel (1893) of men and vehicles). 116 Mo. 379, 22 S. W. 734; Field v. In Duvall v. Ridout (1914) 124 Md. Mark (1894) 125 Mo. 502, 28 S. W. 193, L.R.A.1915C, 345, 92 Atl. 209, it 1004.

was held that one purchasing the porNew Hampshire. See Batchelder v. tion of a farm containing the buildState Capital Bank (1890) 66 N. H. ings has no right to the continued use 386, 22 Atl. 592; Goudie v. Fisher of a plainly visible, but ordinary, un(1920) 79 N. H. 424, 111 Atl. 282; inclosed, unimproved, way from the Barker v. Clark (1828) 4 N. H. 380, buildings to the highway over land re17 Am. Dec. 428.

tained by the grantor, where it is not New Jersey.--Stuyvesant v. Wood- necessary for the beneficial use of the ruff (1847) 21 N. J. L. 133, 47 Am. property, although it is more conDec. 156.

venient than another route would be, New Mexico. Michelet v. Cole

and the deed included all and every (1915) 20 N. M. 357, 149 Pac. 310. the rights, ways, privileges, appur

New York. Parsons V. Johnson tenances, and advantages to the same (1877) 68 N. Y. 62, 23 Am. Rep. 149; belonging or in any wise appertainLongendyke v. Anderson (1886) 101 ing. N. Y. 625, 4 N. E. 629; Caulfield v. In Parsons v. Johnson (1877) 68 N. Lobenstine (1924; Mun. Ct.) 123 Y. 62, 23 Am. Rep. 149, a right of way Misc. 285, 205 N. Y. Supp. 150 (fire by implication in a mortgage was deescape).

nied, as it was not a way of necessity South Carolina.-Screven v. Greg- and was a noncontinuous easement. orie (1855) 42 S. C. L. (8 Rich.) 158, In Standiford v. Goudy (W. Va.) 64 Am. Dec. 747.

supra, it was held on the pleadings Washington.—Malsch v. Waggoner that when the owner of two tracts of (1911) 62 Wash. 470, 114 Pac. 446; land has used a way to and from one Roe v. Walsh (1913) 76 Wash. 148, over the other, no matter how long, 135 Pac. 1031, 136 Pac. 1146.

and he grants the former tract, withWest Virginia. Standiford V. out mention of any way, unless the Goudy (1873) 6 W. Va. 364.

way be necessary to the enjoyment England. See cases cited infra, II. of the tract granted, the mere grant c.

of the land does not create or confer In Stevens v. Orr (1879) 69 Me. a way appendant, appurtenant, or in 323, the court said: “The court is of gross. the opinion that it must be regarded In May v. Smith (1884) 3 Mackey as the settled law of this state that (D. C.) 55, where it seems at least the conveyance of a specified parcel doubtful under the circumstances of real estate, described by metes and whether it would have been reasonbounds, will not carry with it a right able to have held that there was an of way over the grantor's adjoining easement of way by implied grant, the case is possibly open to the construc- “It is not in continuous use like a tion as considering that easements by waterway, and therefore would not implied grant on severance should be pass by general words, unless the limited to ways of necessity.

necessary intention was shown that it In a case where there was no evi- should pass; and such has not been dence of any way open, permanent, shown in this case.visible, or apparent, existing or in use at the time of the severance, identical

2. Modification of meaning of neces.

sity." in location with the alleged easement, it was held that a grant of a way

It has been held, in at least one would not be implied, it not being

jurisdiction, that a way of necessity

should not be limited to a way of abnecessary. Garvin v. State (1921; Ct. Cl.) 116 Misc. 408, 190 N. Y. Supp.

solute physical necessity. 143.

In Pettingill v. Porter (1864) 8

Allen (Mass.) 1, 85 Am. Dec. 671, it Right of way not a continuous ease

was held that there might be an imment.

plied grant of way if it was necesSome of the cases emphasize the

sary to the beneficial enjoyment of theory that a right of way does not

the estate granted, that the word pass on the severance of a tenement

"necessary" could not reasonably be as an appurtenance, as it is not con

held to be limited to absolute physical tinuous. Cleris v. Tieman (1860) 15

necessity, that a way might be necesLa. Ann. 316, infra, VII.; Oliver v.

sary, if another way could not be Hook (Md.) supra; Morgan v. Meuth

made without unreasonable labor and (1886) 60 Mich. 238, 27 N. W. 509;

expense. Bonelli Bros. v. Blakemore (1888) 66

The distinction will be recognized Miss. 136, 14 Am. St. Rep. 550, 5 So.

between a modification of the mean228; Parsons v. Johnson (N. Y.) su

ing of a way of necessity, and a holdpra; Longendyke v. Anderson (1886)

ing that an easement of way by im101 N. Y. 625, 4 N. E. 629; Caulfield

plication is not limited to ways of v. Lobenstine (1924; Mun. Ct.) 123

necessity. But sometimes, of course, Misc. 285, 205 N. Y. Supp. 150. See

it is not easy to say on which side of also Providence Tool Co. v. Corliss

the line a particular case falls. See, Steam Engine Co. (1870) 9 R. I. 564;

for instance, Bailey v. Hennessey Styles v. Towers (1902) 1 Ont. Week.

(1920) 112 Wash. 405, 191 Pac. 863, Rep. 533.

supra, II. a. It may be noted that in a case con

In a case where an easement was cerning a fire escape, and so beyond

denied to a lessee where there was the scope of this annotation, it was

other ground against him, it was said held that a right of way over the fire

that "the basis for an easement by escape, being a noncontinuous ease

implication must be reasonable necesment, would not pass by implication,

sity, as distinguished from mere conit not being a way of necessity. Caul

venience, the English rule of absolute field v. Lobenstine (1924; Mun. Ct.)

necessity being in this state modified." 123 Misc. 285, 205 N. Y. Supp. 150.

Holtz Amusement Co. Schorr In a case where it seems that there

(1924) 122 Misc. 712, 204 N. Y. Supp. was no completed way before the con

733. tract of sale, it was held that a noncontinuous easement would not pass c. Use of particular words; English except by a new creation, and that a way was a noncontinuous easement. It is generally agreed in most of Providence Tool Co. v. Corliss Steam the modern cases that the word “apEngine Co. (1870) 9 R. I. 564.

purtenances” does not assist the solvIn Styles v. Towers (Can.) supra, ing of the problem. which was an action brought to some In a number of the English cases extent under the provisions of the the question has, more or less, turned Ontario statute, the court, in denying on the use of the expressions, "with an implied grant of right of way, said: all ways" or "with all ways enjoyed."




In Staple v. Heydon (1701) 6 Mod. the premises, together with all ways 1, 87 Eng. Reprint, 768, it is stated, therewith now used, occupied, and enamong the points agreed on by all, joyed, it was held that this did not that "if one be seised of Black-acre pass to the landlord the right to use and White-acre, and use a way over a way over the remainder of the White-acre from Black-acre to a mill, premises, which way, while existing river, etc., and he grant Black-acre at the time of the surrender, did not to B, with all ways, easements, etc., appear to have existed before the the grantee shall have the same con- properties came to the same ownerveniency that the grantor had when ship. he had Black-acre."

But in Kay v. Oxley (1875) L. R. In Morris v. Edgington (1810) 3 10 Q. B. 360, 44 L. J. Q. B. N. S. Taunt. 24, 128 Eng. Reprint, 10, 12 210, 33 L. T. N. S. 164, where a lessee Revised Rep. 579, it was held that of part of premises, with the consent where a lessor, having used con- of his lessor and of the tenant of the venient ways over his own adjoining other part, used a way over the other land during his own occupation, de- part, and at the expiration of the lease mises premises with all ways and the landlord conveyed to the former easements belonging and appertain- tenant the premises heretofore leased, ing, it shall be intended that he meant together with all rights of way, etc., the ways used, unless it appears that easements, etc., to the said land and there was some way appurtenant in hereditaments or any of them apperother ground to satisfy the words of taining, or with the same or any of the demise.

them now or heretofore demised, ocA lease of premises, together with cupied, or enjoyed, or reputed as part all ways with the said premises or or parcel of them, or any of them, any part thereof used or enjoyed, will appurtenant thereto, it was held that carry a right of way over other land the deed carried the right of way. of the lessor used and enjoyed with The court declined to follow the such premises. Kooystra v. Lucas theory of the Thomson and Langley (1822) 5 Barn. & Ald. 830, 106 Eng. Cases as to necessity of existence of Reprint, 1394, 1 Dowl. & R. 506, 24 the way before unity of seisin, but Revised Rep. 575.

did not in terms overrule those cases. But see Daniel y. Anderson (1861) In Barkshire v. Grubb (1881) L. R. 31 L. J. Ch. N. S. 610, 8 Jur. N. S. 18 Ch. Div. 616, 50 L. J. Ch. N. S. 328, 7 L. T. N. S. 183, 10 Week. Rep. 731, 45 L. T. N. S. 383, 29 Week. Rep. 366, infra, IV.

929, it was held that a grant by the There are

at least two English owner of two tenements, of one of cases in which a right of way by im- them, together with all ways then or plied grant was denied on the ground theretofore enjoyed or reputed as part that the way, while existing at the thereof or appurtenant thereto. will time of severance, had not existed be- pass a right of way over a clearly defore the time when the unity of seisin fined path constructed over the other commenced. Thus, in Thomson v. tenement and used at the date of the Waterlow (1868) L. R. 6 Eq. 36, 37 grant for the purposes of the granted L. J. Ch. N, S. 495, 18 L. T, N. S. 545, premises, even though the path did 16 Week. Rep. 686, it was held that not exist prior to the unity of possesà grant of premises, with all ways, sion. The court considered that the etc., enjoyed, etc., would not carry a theory of Thomson v. Waterlow and right to a way which, while existing Landley v. Hammond, supra, at the time of severance, had not overruled by the cases of Kay v. Oxexisted before the vendors held the ley, supra, and Watts v. Kelson (1871) property. So, in Langley v. Hammond L. R. 6 Ch. 166, 40 L. J. Ch. N. S. 126, (1868) L. R. 3 Exch. 161, 37 L. J. 24 L. T. N. S. 209, 19 Week. Rep. 338. Exch. N. S. 118, 18 L. T. N. S. 858, But in Brett v. Clowser (1880) L. 16 Week. Rep. 937, where a tenant R. 5 C. P. Div. 376, it was held that a surrendered to his landlord a part of lease of land, together with all ways,

34 A.L.R.-16.


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