which continued to be used after the unity of seisin, and the parceners, for the purpose of making partition, made a deed providing for the division of the estates, with easements, etc., belonging or appertaining or therewith usually held, used, occupied, or enjoyed, it was held that the deed sufficiently showed an intention that the right of way should pass.

In Nicholls v. Nicholls (Eng.) supra, on an agreement for the distribution of an estate, it was held that a formed road over a portion of one subdivision, to and for the apparent use of another subdivision, would pass as appurtenant to the latter subdivision, it being a road at the back of two houses.

It may be noted that it was held in Holmes v. Jones (1888) 80 Ga. 659, 7 S. E. 168, that "whether a way in use at the time lands were divided amongst the heirs at law of the deceased proprietor of an extensive tract was, in fact, a way of necessity, and so regarded by the parties at interest, and whether its continuous use was contemplated, and whether it was subsequently abandoned in consequence of the opening and the use for a time of a new way, are all questions of fact, and in the present case they were well decided by the appropriate tribunal."

In other cases it was held that the right to use a visible way did not pass on partition or division of the property. La Plant v. Schuman (1923)

Iowa, 196 N. W. 280; Ferguson v. Ferguson (1920) 106 Kan. 823, 189 Pac. 923; Gayetty v. Bethune (1817) 14 Mass. 49, 7 Am. Dec. 188; Worthington v. Gimson (1860) 2 El. & El. 618, 121 Eng. Reprint, 232, 29 L. J. Q. B. N. S. 116, 6 Jur. N. S. 1053.

In Worthington v. Gimson (Eng.) supra, where joint owners executed a deed of partition not referring to a way which had existed and been used for many years, it was held that no right of way passed by the deed.

In Ferguson v. Ferguson (1920) 106 Kan. 823, 189 Pac. 923, where an implied easement of a roadway was denied on partition of property, the court stated: "Upon partition, it is

only ways of necessity, and not mere ways of convenience, that pass to the individual tracts carved out of the original estate." But a few lines later the matter is confused by the following statement: "When an estate is severed without specific reference to easements for rights of way, easements by implication over the apportioned lands in favor of the other allottees only arise where they necessarily and obviously must arise to give the allottees fair enjoyment of their several allotments."

In La Plant v. Schuman (Iowa) supra, an implied easement of a roadway was denied under the circumstances on division of land in a divorce decree, the facts being against the easement.

VII. Statutes.

In Vargas v. Maderos (1923) 191 Cal. 1, 214 Pac. 849, where it was held that a right of way on severance passed by implied grant, as appurtenant to land sold, the court refers to §§ 1084 and 1104 of the California Civil Code. (Section 1084 provides: "The transfer of a thing transfers also all its incidents, unless expressly excepted; . . ." Section 1104 provides: "A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred, in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.")

In Cleris v. Tieman (1860) 15 La. Ann. 316, where an owner erected two houses, with an alley between them, and the property was afterwards severed, the alley going with one of the houses, it was held that there was no easement to the alley in the owner of the other house, the court quoting from Fisk v. Haber (1812) 7 La. Ann. 652, as follows: "The servitude of passage, being discontinuous, can, under no circumstances, result from the destination du père de famille." The

court in the Cleris Case went on to say: "Continuous nonapparent servitudes, and interrupted servitudes, whether apparent or not, can be established only by a title.' C. C. 762. "The use which the owner has intentionally established on a particular part of his property in favor of another part is equal to a title, with respect to perpetual and apparent servitudes thereon.' C. C. 763. The right of way or passage is a servitude needing, for its exercise, the act of a man, and is therefore discontinuous; it is so classed by the Code itself. C. C. 723."

See also, for an action brought to some extent under the provisions of the Ontario statute, Styles v. Towers (1902) 1 Ont. Week. Rep. 533, supra, II. b, 1.

VIII. Miscellaneous.

The original owner had never conveyed the land traversed by the way in dispute in Purvis v. Overlander (1910) 44 Pa. Super. Ct. 22, where he, having laid out a paved and fenced alley along the rear of three lots owned by him, which was also the only practical means of access to the rear of a fourth lot, sold the fourth lot without mention of the alley, and later sold the other lots to various persons, describing them as running to the alley, which was an open, visible, and permanent way. It was held that the owner of the lot first sold could not be barred from using the alley by the owners of the other lots.

In Gulick v. Hamilton (1919) 287 Ill. 367, 122 N. E. 537, where there was mention of an alley in the deeds, the court, however, said: "Where the owner of a tract of land has divided it into different parts, as lots and alleys or ways, in such a manner that one part derives from another an advantage of a permanent, open, and physical character, and the owner afterwards sells a part of the property, the purchaser takes the part sold, with all the benefits and burdens which appear at the time of the sale."

In Dodge v. Stacy (1867) 39 Vt. 558, the court seemed to consider the question to be for the jury whether

the grantor gave the purchasers of lots adjoining an alley to understand that it had been opened and appropriated to the public use for the benefit of those who should become purchasers, and whether they purchased such adjoining land relying upon the faith of such dedication.

In Hinchliffe v. Kinnoul (1838) 5 Bing. N. C. 1, 132 Eng. Reprint, 1004, it was held that a lease passed a right of way to a passage as a necessary incident to the subject-matter actually demised, although not specially named in the lease, the jury having found that the passing and repassing over the way or passage was not merely convenient, but necessary, "for the use of the coal chute, and of the pipes, and of the repairing and mending the same, and the side or wall of the house," to the performance of which the lessees were bound by a covenant in the lease.

While there was necessity in the case, reference may be here made to Hankins v. Hendricks (1910) 247 III. 517, 93 N. E. 428, where it was held that the grantee of premises had the right to the use of a court and alley retained by the grantor and later sold to a third party, such court and alley at the time of such first sale being used not only for access to the granted premises, but to other adjacent premises, this fact being apparent, and no other means of access existing to such granted premises from the public street.

In Dawson v. Greenfield (1922) 118 Wash. 454, 203 Pac. 948, it was not necessary to hold more than that a way was one of necessity, if indeed that was in the case.

In Glave v. Harding (1858) 27 L. J. Exch. N. S. (Eng.) 286, it was held that under the circumstances no right of way arose by implication, but the court did not seem entirely agreed as to the reasons for the result.

In Bailey v. Gray (1898) 53 S. C. 503, 31 S. E. 354, where a right of way by implied grant over an alley was denied, the court considered that it appeared that the easement over the alleyway was created for the benefit of other property.

It may be noted that in the following cases it does not appear that, at the time of the severance, the way claimed was used on behalf of the alleged dominant tenement: Roe v. Siddons (1888) L. R. 22 Q. B. Div. (Eng.) 224, 60 L. T. N. S. 345, 37 Week. Rep. 228, 53 J. P. 246-C. A.; Titchmarsh v. Royston Water Co. (1899) 81 L. T. N. S. (Eng.) 673, 64 J. P. 56, 48 Week. Rep. 201; Peters v. Sinclair (1913) 48 Can. S. C. 57, 13 D. L. R. 468, affirmed in (1914) 18 D. L. R. (Eng.) 754. The same may be said of Fullerton v. Randall (1918) 52 N. S. 354, 44 D. L. R. 356, where the facts are not very clear, on which a way by implied grant was denied.

It may be further noted that in Pheysey v. Vicary (1847) 16 Mees & W. 484, 153 Eng. Reprint, 1280, the action was settled.

It may be permissible to refer here to a case beyond the scope of this annotation. Where the owner of two adjoining lots built two houses thereon for two brothers, to whom he conveyed the property by several deeds, respectively, and the buildings were built according to the suggestions of the two grantees, with a passageway in the basement of one of the buildings, constructed with a view of its being used in common by the occupants of both houses, and the passageway was used accordingly during the ownership of the two brothers, it was held, after the properties had passed into other hands, that there was an easement for the use of the passageway, it being highly convenient and beneficial. Fossum v. Stark (1922). 302 III. 99, 134 N. E. 12. B. B. B.

manner.

3. The rule which allows one to use his own property in such manner as to cause injury to the property of another, without liability for the injury, should be narrowly limited and carefully confined.

Adjoining landowners, § 2-physical invasion of another's property liability.

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4. The use by one property owner of

his own land becomes unreasonable and unlawful where the necessary effect is physically to invade the property of another owner. Adjoining landowners, § 2-development of oil property injury to neighboring property.

5. The rule of damnum absque injuria does not apply to the careful development of the oil underlying the property of one person, if the necessary result is that oil flows into a natural stream by which it is carried on to the property of another owner to its injury.